⚠️The Saga of Surveillance Capitalism Continues: LexisNexis’s Contract With ICE Foretells a Bleak Era of Data Policing Immigrants, Intercept Writes

Sophia Barba 04/07/2021

On April 2, 2021, The Intercept published a damning article revealing that the oft-used legal research giant, LexisNexis, has contracted with ICE to provide the agency access to its massive data bank.

According to Sam Biddle from The Intercept, “[LexisNexis] also caters to the immensely lucrative ‘risk’ industry, providing, it says, 10,000 different data points on hundreds of millions of people to companies like financial institutions and insurance companies who want to, say, flag individuals with a history of fraud. LexisNexis Risk Solutions is also marketed to law enforcement agencies, offering ‘advanced analytics to generate quality investigative leads, produce actionable intelligence and drive informed decisions’ — in other words, to find and arrest people.”

The unholy marriage between the research tool-turned-Palantir and ICE is not a new development. Several years ago, LexisNexis had already begun courting ICE with similar data-exchange deals along with the other legal research titan, WestLaw. Prior talks had prompted members of the legal community to express obvious displeasure for the ethical dilemma that was being forced upon them. Most notably, Sarah Lamdan, professor and librarian at CUNY School of Law, published an authoritative article in the N.Y.U. Review of Law & Social Change that provided insight into the developing relationship between ICE and both legal research companies. This article came at the cusp of what is now an incredibly normalized occurrence. You know, a private company that offers an essential tool branches out into the lucrative data surveillance industry, you’ve probably seen it before.

It is impossible for most people to hear about these partnerships without getting a bad taste in their mouth. Unfortunately, our society’s dependence on tech has left us largely unable to divest or otherwise eschew these tools with much success. This dependence is the reason many of these companies don’t even try to hide how incestuous their relationships to government agencies like ICE really are.

The Intercept article should be read and taken as a clarion call to action for immigration advocates. The playing field is being skewed in favor of an omniscient government, leaving attorneys and those they represent more eggshells to avoid as they tread lightly around unseen information landmines. The façade of neutrality touted by Big Data and Big Tech is being torn down by the very companies who worked so hard to create it. What’s worse, the tech industry itself is the outfit that created the narrative that the internet, and all that comes with it, is a strictly neutral medium existing between the two groups allegedly existing in perpetual struggle: the masses and the government. (Don’t believe me? Don’t worry, someone already wrote an article about it here) This news should encourage more fervent use of alternative channels of informational support among those who represent non-citizens. Likewise, more collaborative efforts should also be made to place organized pressure on brazen unions such as that of LexisNexis and ICE. As it stands, it may even be advisable for many of us in the legal community to return to antiquated means of record-keeping and information-gathering if one can help it. After all, just because you’re paranoid, doesn’t mean they aren’t after you!

Some more interesting reading, some already linked above:

LEXISNEXIS TO PROVIDE GIANT DATABASE OF PERSONAL INFORMATION TO ICE, The Intercept

LAWYERS AND SCHOLARS TO LEXISNEXIS, THOMSON REUTERS: STOP HELPING ICE DEPORT PEOPLE, The Intercept

THOMSON REUTERS DEFENDS ITS WORK FOR ICE, PROVIDING “IDENTIFICATION AND LOCATION OF ALIENS”, The Intercept

LexisNexis Page Advertising its ‘Risk Solution’ Services

How ICE Picks Its Targets in the Surveillance Age, The New York Times Magazine

ICE investigators used a private utility database covering millions to pursue immigration violations, The Washington Post

Tech companies quietly work with ICE as border crisis persists, NBC News

A notice posted on the General Services Administration government website that foretells what the data may be used for

WHEN WESTLAW FUELS ICE SURVEILLANCE: LEGAL ETHICS IN THE ERA OF BIG DATA POLICING, by Sarah Lamdan published in the N.Y.U Review of Law and Social Change

THE MYTH OF PLATFORM NEUTRALITY, by Anupam Chander and Vivek Krishnamurthy for the Georgetown Law Technology Review

😎🗽⚖️👍🏼EXCITING ANNOUNCEMENT FROM “COURTSIDE” — Introducing NDPA Superstar & Now Co-Editor Sophia I. Barba!

I am delighted to announce that Sophia Isabel Barba has joined Courtside as Co-Editor. In addition to the many achievements described in her bio below, Sophia comes from a family with a lifetime commitment to due process and equal justice under law for migrants. Her father Francisco Barba is an immigration attorney and the principal of the Law Offices of Francisco J. Barba, San Jose, CA. I first met a Sophia when she invited me to be the inaugural speaker at the Tulane Immigration Law Society which she founded.

Here’s Sophia’s bio:

Sophia Barba is a newly minted law graduate native to the Bay Area in California. She attended a small liberal arts college in Portland, Reed College, where she majored in Anthropology and authored a thesis examining the intersection of racial dynamics in the creation of immigration policy in the United States. After graduating from Reed, Sophia spent time working for the Portland Bureau of Transportation, where she helped develop strategies to make access to public services more accessible and inclusive to immigrant and low-income communities. After her time in Portland, Sophia attended Tulane University Law School.

At Tulane, Sophia worked with a bevy of different immigration-related firms and organizations including Catholic Charities, Center for Gender and Refugee Studies, and others. At the advent of a developing immigration law program at Tulane, Sophia founded the Tulane Immigration Law Society, which sought to provide a platform for students and lawyers alike to connect. Sophia graduated from Tulane Law in 2020, after which point she clerked for the Santa Clara County District Attorney’s Office. She recently passed the California Bar Exam and hopes to use her license to support the immigrant’s rights both as an attorney, and as part of the Immigration Courtside family!

Please join me in welcoming Sophia to Courtside!

🇺🇸🗽⚖️😎👍🏼Due Process Forever!

PWS

03-22-21

JEFFREY S. CHASE BLOG: In 1996, The BIA Was Functioning Like A Court & Trying To Develop & Apply Asylum Law In The Rational, Generous Way It Was Intended, Properly Giving The Applicant “The Benefit Of the Doubt” — Today, The BIA Is A Deadly ☠️☠️⚰️ Clown Show 🤡 Asylum Denial Factory!

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Star Chamber Justice — “Justice”
Star Chamber
Style

Kangaroos — BIA Members: “Hey, let’s celebrate! We just sent a refugee to death for not being able to describe some obscure insignia irrelevant to the case. But, the big thing is we found ‘any reason to deny’ asylum making our handler ‘Billy the Bigot’ happy! He’s out to set new killing records before Jan. 20! Maybe he’ll find us jobs at Breitbart then!”
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https://www.jeffreyschase.com/blog/2020/11/29/facts-reason-and-benefit-of-the-doubt

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Facts, Reason, and Benefit of the Doubt

On November 24, the U.S. Court of Appeals for the Second Circuit issued an unpublished decision in Malonda v. Barr. In that case, the asylum-seeker was attacked by armed soldiers when they raided his family’s home in the Democratic Republic of Congo. The soldiers raped and killed three of his sisters, and abducted his father and brother, all due to the father’s membership in an opposition political party.

The Immigration Judge acknowledged the voluminous documentation and detailed testimony in support of the claim. However, asylum was denied because Malonda couldn’t identify the soldiers’ uniforms with absolute certainty, although he stated “they were working for the government, I can say.” And because he did not credit the attackers as working for the government, the judge did not find that the attack was necessarily motivated by the family’s political opinion, but could have simply been an act of random violence not protected under asylum law.

Malonda was not the only recent agency decision to employ this thought pattern. In the BIA’s precedent decision in Matter of O-F-A-S-, an applicant for protection under the Convention Against Torture testified that he was beaten, robbed, and threatened by five men wearing police uniforms bearing the insignia of a government law enforcement agency, who were armed with high-caliber weapons and handcuffs. The Immigration Judge determined that the respondent had not met his burden of establishing that the five were police officers, as the uniforms could have been fake, and criminals also carry weapons. The IJ further noted that the five did not arrive in an official police car, and immediately departed when they heard that a police car was en route in response to the disturbance. Of course, real police officers engaging in extracurricular criminal activity would behave the same way. Nevertheless, the BIA found no clear error on appeal.

In another recent decision presently pending at the Second Circuit, asylum was denied because the applicant was unable to state with certainty from the details of the uniform he wore that one of his persecutors was certainly a police officer, although he believed that he was. The IJ therefore did not conclude that police were involved, instead considering the persecutors to be non-state actors, from whom the respondent hadn’t proven that the police were unwilling or unable to protect him. The BIA affirmed in an unpublished decision. Obviously, a finding that a police officer participated in the persecution of the asylum applicant could well have led to a different finding as to the government’s willingness to protect.

In each of the above cases, the respondent was found to be a credible witness. There are only two types of witnesses in court proceedings: fact (or “lay”) witnesses and experts. Asylum applicants are fact witnesses, describing what they experienced. Although the Federal Rules of Evidence are not binding on immigration judges, they provide the best guidance available, as the Immigration Courts have no such evidentiary rules of their own. Rule 701 of the FRE allows a lay witness to express an opinion provided that it is (1) rationally based on their own perception; (2) helpful to clearly understand the testimony or to determine a fact in issue; and (3) not based on scientific, technical, or other specialized knowledge reserved for expert witnesses. In the above cases, the asylum seekers’ opinions that the uniformed, armed attackers were government officials fit clearly within the parameters of Rule 701.

Of course, asylum applicants are not experts on uniforms worn by the various government forces in their home countries. I doubt most country experts who testify in asylum cases would possess such specific expertise. Even if they did, those experts weren’t present to witness the event in question to be able to affirm that the uniform was in fact the official government issue. So what is the solution in cases in which the Immigration Judge harbors doubt regarding the attackers?

The UNHCR Handbook at para. 196 advises that despite all efforts, “there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.” The following paragraph adds that evidentiary requirements should not be applied too strictly to asylum seekers. But the Handbook sets limits on this practice, adding that “[a]llowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant.”1

It would seem that requiring absolute confirmation of the authenticity of the attacker’s uniform (which psychologists have testified is not one’s focus during a traumatic experience) places an insurmountable burden on asylum applicants. Given the purpose of asylum laws, where an asylum applicant expresses the reasonable opinion that attackers who look and behave like government officials are in fact government officials, in the absence of the type of inconsistencies flagged by the Handbook, the benefit of the doubt should be allowed to carry the day.

Addressing this issue in Malonda, the Second Circuit focused on the fact that the identity issue was tied to the question of political opinion. The court referenced its decision from earlier this year in Hernandez-Chacon v. Barr, in which it cited language from the BIA’s excellent 1996 decision in Matter of S-P- holding that political opinion is established by direct or circumstantial evidence.

The Second Circuit pointed to circumstantial evidence in Malonda’s testimony that the attackers were government soldiers motivated by the family’s political opinion. Such evidence included the facts that Malonda’s home was the only one attacked, and his father was the only resident of the street who was an active opposition party member. Furthermore, the likelihood of the attackers being anti-government rebels was undermined by Malonda’s testimony that the rebels ability to reach his neighborhood was impeded by the presence of state security forces, and that his brother, who was abducted by the attackers, was brought to a camp where he was trained to fight against (rather than for) the rebels.

In a footnote, the court noted that the BIA had added its own insinuation to the contrary by referencing general reports of rebel involvement in “widespread violence and civil strife” in the country. But the Second Circuit pointed out that such general information failed to consider that Malonda’s own region was protected by the government, and “more importantly, does not explain why the rebels would have targeted only Malonda’s house for such violence.”

The Second Circuit’s opinion in Malonda emphasizes the starkly different approaches of the 1996 BIA and its current iteration. In Matter of S-P- (an en banc decision which remains binding precedent on immigration judges and the BIA), the Board noted the difficulty in determining motive where “harm may have been inflicted for reasons related to government intelligence gathering, for political views imputed to the applicant, or for some combination of these reasons.” But the Board emphasized the importance of keeping “in mind the fundamental humanitarian concerns of asylum law,” which are “designed to afford a generous standard for protection in cases of doubt.”2

S-P- also included a reminder that a grant of asylum “is not a judgment about the country involved, but a judgment about the reasonableness of the applicant’s belief that persecution was based on a protected ground.” As the scholar Deborah Anker has emphasized, such reasonableness determinations require “that the adjudicator view the evidence as the applicant – or a reasonable person in his or her circumstances – would and does not simply substitute the adjudicator’s own experience as the vantage point.”3 In its decision in Sotelo-Aquije v. Slattery, the Second Circuit similarly emphasized the importance of vantage point by describing the standard as what a reasonable person would find credible “based on what that person has experienced and witnessed.”

Applying this standard, what reasonable person who had experienced and witnessed what Malonda did would say: “You know, I was pretty certain the attackers were government soldiers punishing us for my father’s political activities. But since you pointed out that I’m not completely certain about the uniforms, I guess I was mistaken. It was probably just a random incident. In which case, I can’t see any reason to fear return?”

Remarkably, that appears to have been the BIA’s approach in Malonda. Its decision lacked any indication of adopting the asylum applicant’s vantage point or applying the benefit of the doubt as described above. And while Matter of S-P- set out a rather complex set of elements for identifying motive through the types of circumstantial evidence pointed to by the Second Circuit, the present BIA pointed instead to whatever generalized information it could find in the record to justify affirming the asylum denial.

Although an unpublished decision involving a pro se petitioner that could easily evade our attention,4 Malonda underscores the need for a uniform application of the principles emphasized in the BIA’s decision in Matter of S-P-, instead of a “uniform” approach based on the ability to identify uniforms.

Notes:

Although not binding, the Supreme Court has recognized that “the Handbook provides significant guidance in construing the Protocol, to which Congress sought to conform [and] has been widely considered useful in giving content to the obligations that the Protocol establishes.” INS v. Cardoza-Fonseca, 480 U.S. 421, 439 n. 22 (1987). The BIA reached a similar conclusion in Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) (finding the Handbook to be a useful tool “in construing our obligations under the Protocol”).

The majority opinion in Matter of S-P- was authored by now retired Board Member John Guendelsberger. Three current members of the Round Table of Immigration Judges, Paul W. Schmidt (the BIA Chairperson at the time), Lory D. Rosenberg, and Gustavo Villageliu, joined in Judge Guendelsberger’s opinion.

Deborah E. Anker, Law of Asylum in the United States (2020 Edition) (Thomson Reuters) at 76.

Thanks to attorney Raymond Fasano for bringing this decision to my notice.

Copyright 2020, Jeffrey S. Chase. All rights reserved.

Reprinted With Permission.

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

Obviously, the BIA could resume court-like functions, provide scholarly, rational guidance and enforce uniformity for Immigration Judges (too many of whom lack true expertise in asylum laws), help cut backlogs, increase efficiency, and put an end to frivolous litigation by DHS which too often these days seeks to encourage IJs to deny cases where asylum grants clearly are warranted. (There was a time, at least in Arlington, when DHS Counsel actually worked cooperatively with the private bar and the Immigration Judges to promote fairness and use court time wisely on asylum cases. Those days are now long gone as the system has regressed horribly and disgracefully under the maliciously incompetent, White Nationalist, nativist, leadership of the current regime at DHS and DOJ).

But, due process, fundamental fairness, and best practices, can’t and won’t happen until the current “BIA Clown Court” 🤡 is replaced with a new group of expert Appellate Judges ⚖️👨🏻‍⚖️🧑🏽‍⚖️ from the NDPA who are “practical scholars” in immigration and human rights laws.

EOIR clown Show Must Go T-Shirt — “EOIR Clown Show Must Go” T-Shirt Custom Design Concept

Due Process Forever!

PWS

11-30-20

🗽⚖️🇺🇸YAEL SCHACHER @ REFUGEES INTERNATIONAL FILES AMICUS BRIEF ON WHY “REMAIN IN MEXICO” IS A “CRIME AGAINST HUMANITY” — “When I wasn’t visiting border, I was trying to understand how the U.S. government could put in place a policy that seemed the very antithesis of what seeking asylum was supposed to be, as articulated in Refugee Act of 1980.”

https://www.google.com/url?q=https://www.refugeesinternational.org/reports/2020/11/25/le4a9nihwqnhgcn0q2l5fufa8fah6v&source=gmail-imap&ust=1606928318000000&usg=AOvVaw0Fc_OTkc3MFgBm5dijso0i

. . . .

When I wasn’t visiting border, I was trying to understand how the U.S. government could put in place a policy that seemed the very antithesis of what seeking asylum was supposed to be, as articulated in Refugee Act of 1980. I had spent my time before coming to Refugees International researching the writing and passage of that law and the development of the contemporary asylum system since 1980. The Remain in Mexico policy is unprecedented. The U.S. government claims the authority for it lies in a provision of the 1996 immigration law that allows for the return of certain applicants for admission to contiguous territory to await processing. I began researching this provision and it became clear that it was not intended to apply to asylum seekers.

In support of a challenge to the Remain in Mexico program in California federal court, Refugees International and I, with attorneys from Sidley Austin LLP, submitted this brief describing why the Refugee Act forbids the program, a reality that the 1996 law does not change. The argument of the brief is that, when the 1980 Refugee Act was enacted, it was intended to establish a uniform process for consideration of asylum claims that would preclude this return to Mexico approach. A lynchpin in the argument is that there were two versions of the asylum provision of the Refugee Act—one proposed by Congresswoman Holtzman and one by Senator Edward Kennedy. Only the House version provided that asylum seekers at a land border be accorded the same ability to seek asylum as those already in the country. When, in conference, Holtzman’s version was accepted, Congress made a conscious choice in pursuit of uniformity in consideration of asylum requests: that the United States would treat asylum seekers at the border the same as it would all others. And the language mandating uniform treatment of asylum seekers in the 1980 Refugee Act was reiterated in the 1996 immigration law.

. . . .

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

The case is Immigrant Defenders Law Center v. Wolf, USDC, C.D. CA.

Read Yael’s intro, her outstanding brief prepared by Sidley Austin LLP, and the “Holtzman Papers” at the above link. Notably, Sidley Austin is one of the great firms that have helped our Round Table with amicus briefs! It’s what happens when you connect the dots among history, research, social justice, and the law. It’s why the Liberal Arts are the wave of a better future and a better Federal Judiciary! It’s all about perspective and problem solving!

Thanks Yael for all that you, Refugees International, and great pro bono lawyers like Sidley Austin do for justice and humanity.

The real problem here: A disgraceful Supremes’ majority 🏴‍☠️ that improperly “greenlighted” this totally illegal, racist-inspired, “crime against humanity,” cooked up by neo-Nazi hate monger Stephen Miller ☠️🤮, after it had properly and timely been enjoined by lower Federal courts. And, a complicit EOIR that consistently fails to provide due process and justice to asylum seekers is a huge part of the problem.

Unlike the Supremes, the EOIR Clown Show 🤡 can be removed and justice at all levels improved just by a putting the right experts from the NDPA in charge right off the bat.

Democratic Administrations, particularly the Obama Administration, have a history of not getting the job done when it comes to achievable immigration reforms within the bureaucracy. If you don’t want four more years of needless death, disorder, demeaning of humanity, and deterioration of the most important “retail level” of our justice system, let the incoming Biden Administration know: Throw out the EOIR Clown Show and bring in the experts from the NDPA to turn the Immigration Courts into real, independent courts of equal justice and humanity that will be a source of pride, not a deadly and dangerous national embarrassment!

Contrary to all the mindless “woe is me” suggestions that it will take decades to undo Stephen Miller’s (is he really that much smarter than any Democrat politico?) racist nonsense, EOIR is totally fixable — BUT ONLY WITH THE RIGHT FOLKS FROM THE NDPA IN CHARGE!

It’s only “mission impossible” if the Biden-Harris Administration approaches EOIR with the same indifference, lack of urgency, and disregard for expertise and leadership at the DOJ that has plagued past Dem Administrations on immigration, human rights, and social justice.

It won’t take decades, nor will it take zillions of taxpayer dollars! With the right folks in leadership positions at EOIR, support for independent problem solving (not mindless micromanagement) from the AG & DOJ, and a completely new BIA selected from the ranks of the NDPA, we will see drastic improvements in the delivery of justice at EOIR by this time next year. And, that will just be the beginning!

No more clueless politicos, go along to get along bureaucrats, toadies, and restrictionist holdovers calling the shots at EOIR, America’s most important, least understood, and “most fixable” court system! No more abuse of migrants and their representatives! No more ridiculous, “Aimless Docket Reshuffling” generating self-created backlogs! No more vile and stupid White Nationalist enforcement gimmicks being passed off as “policies!” No more “Amateur Night at The Bijou” when it comes to administration of the immigrant justice system at the DOJ under Dems!

Get mad! Get angry! Stop the nonsense! Tell every Democrat in Congress and the Biden Administration to bring in the NDPA experts to fix EOIR! Now! Before more lives are lost and futures ruined! It won’t get done if we don’t speak out and demand to be heard!

This is our time! Don’t let it pass with the wrong people being put in charge — yet again! Don’t be “left at the station” as the train of immigrant justice at Justice pulls out with the best engineers left standing on the platform and the wrong folks at the controls! Some “train wrecks” aren’t survivable! 🚂☠️⚰️

Due Process Forever!

PWS

11-28-20

CORRUPT, CHILD ABUSING, RACIST IMMIGRATION BUREAUCRACY 🏴‍☠️☠️🤮⚰️👎🏻 MUST BE REPLACED WITH PROFESSIONAL WORKFORCE COMMITTED TO DUE PROCESS, RULE OF LAW, HUMAN DIGNITY! — “CRUELTY TO migrant children, a trademark of the Trump administration’s immigration policy, did not cease when officials reversed course in the face of public outrage two years ago and stopped wrenching toddlers, tweens and teens from their parents — with no plan or process to reunite them. It has continued apace under cover of the pandemic . . . .”

Trump Dumping Asylum Seekers in Hondiras — Dumping Asylum Seekers in Honduras
Artist: Monte Wolverton
Reproduced under license

Sheltering in Cages by John Darkow — “Sheltering in Cages” by John Darkow
Reproduced under license

Sessions in a cage — Jeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com
Republished under license

From WashPost:

https://www.washingtonpost.com/opinions/a-federal-judge-halts-another-inhumane-trump-administration-practice-at-the-border/2020/11/22/d5795686-2b4d-11eb-8fa2-06e7cbb145c0_story.html

Opinion by the Editorial Board

November 22 at 12:59 PM ET

CRUELTY TO migrant children, a trademark of the Trump administration’s immigration policy, did not cease when officials reversed course in the face of public outrage two years ago and stopped wrenching toddlers, tweens and teens from their parents — with no plan or process to reunite them. It has continued apace under cover of the pandemic, which the White House has used as an all-purpose pretext for ignoring child-protection laws and diplomatic agreements governing asylum, and, without even a nod to due process, expelling unaccompanied children who cross the border seeking refuge.

A federal judge has now halted that practice even as he acknowledged the administration’s far-reaching powers in the midst of a public health emergency. Those powers are broad, U.S. District Judge Emmet G. Sullivan ruled, but do not enable the government to send minors packing without affording them a chance to have their asylum claims heard.

At least 13,000 children have been detained by Border Patrol officers and swiftly thrown out of the country under an emergency decree that has effectively sealed off the southern border to most migrants since the spring. Administration officials justified the measure in the name of protecting the country from a potential influx of migrants carrying the coronavirus — but performed no testing, and provided no data, to substantiate their stance.

Given infection rates in Mexico and Central America, it may be reasonable to assume that some migrants, including unaccompanied minors, might have contracted covid-19. It may also be the case, however, as the ACLU argued in court, that the practice of expelling young migrants actually exposes U.S. border authorities to more risk — in the course of holding them while flights are arranged to their home countries in Central America or elsewhere — than they would otherwise face if the migrants were placed in shelters that have the capacity to adopt social distancing and other precautions. Judge Sullivan, for his part, said the government had asserted its “scientific and technical expertise” to justify its policy of evicting young migrants — but provided none by way of actual evidence.

As it happens, it occurred to at least some administration officials, early on in the pandemic, that migrant children deserved some special consideration. When the policy of suspending asylum was first rolled out, children who crossed the border were exempted. That was quickly reversed, however, with a spokesman saying that minors would be returned to their countries of origin on a “case by case basis.” In the ensuing months, however, virtually all have been expelled.

Anti-trafficking and other laws provide for protections for unaccompanied minors who arrive in this country. The administration has seized on the pandemic to disregard those, along with other long-standing measures and practices that set procedures for migrants seeking refuge here. A more humane approach, in line with American traditions and values, would have established a process for testing and quarantining, at least for migrant children, as they pursued asylum claims. But humane policy is anathema to the Trump administration, and the result is thousands of children who have been subjected to unwarranted hardship and risk.

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

Remembers, the victims are largely dead, deported, or still suffering! The “perps” — including the “Perp in Chief,” “Gruppenfuhrer Miller,” Jeff “Gonzo Apocalypto” Sessions, “Wolfman the Illegal,” and “Billy the Bigot” remain at large, even profiting from and bragging about their “crimes against humanity.” This is a “functioning democracy?” No way!

We’ve all been subjected to the disingenuous writings of pundits babbling on about the resilience of American democracy in the face of a fascist president and his corrupt anti-democracy party of cowards and enablers. Hogwash!

Make no mistake about it, American democracy is on the ropes! Basically, we’re watching a corrupt President who lost the election by over 6 million votes and 74 electoral votes engage in systematic frivolous, abusive, baseless litigation intended to destroy our nation, undermine our national security, and disenfranchise voters. It’s a disgusting, overtly racist, dishonest performance that would have any other individual in America and his motley band of unethical lawyers in jail for contempt and conspiracy to obstruct justice! But, Trump and his cronies continue to operate outside the law!

We owe our existence as a nation less to any “structural integrity” and much more to a relatively few courageous, smart, highly motivated members of the resistance: immigration, human rights, and civil rights lawyers; African American women; non-right-wing journalists; Democratic legislators; scientists and medical professionals; a limited number of Federal Judges, mostly at the District Court and Immigration Court levels (and specifically excluding any current BIA Member, EOIR “Manager,” or Supreme Court Justice not named Sotomayor, Kagan, and (sort of) Breyer); courageous DACA kids; and some Federal Career Civil servants not working at ICE or CBP.

The “resilience of American institutions” view is largely that of a privileged minority who haven’t been deported to possible torture or death without any process at all (let alone “due” process), haven’t been illegally separated from beloved family members, aren’t rotting in private prisons (the “New American Gulag”) for the “crime” of seeking justice, aren’t struggling with unemployment or difficulty putting food on the table while Moscow Mitch and his elites focus on confirming unqualified Federal Judges, haven’t had family members shot by the police, haven’t had family members unnecessarily suffer and die because of the worst President in U.S. history’s maliciously incompetent failure to provide leadership and any systematic strategy for controlling a pandemic, and haven’t had to put their lives and professional reputations on the line in a failing Justice system that has enabled grotesque abuses by the likes of Jeff “Gonzo Apocalypto” Sessions, Billy the Bigot Barr, Noel Francisco, and the rest of their band of unethical Government lawyers.

The Biden Administration must do a thorough housecleaning of the corrupt DHS and DOJ bureaucracies that carried out the illegal, immoral, racist, White Nationalist agenda developed by neo-Nazi Stephen Miller and his cowardly gang of brownshirts!

And, as a nation, we need to think carefully about the implications of a life-tenured Supreme Court majority that, since their initial feckless performance on the “Muslim Ban” cases, time and time again failed to forcefully and unanimously stand up for our democracy, human decency, and those defending them in the face of overt, racism and hate driven, Executive tyranny! A Supremes’ majority that has disgracefully and spinelessly embraced the “Dred Scottification” of “the other” (mostly immigrants and those of color). It’s not rocket science! And some of our “elite law schools” seemed to have forgotten to teach “Con Law 101” and “Basic Ethics” to aspiring right wing judges!

It’s less about institutions than it is about the courageous individuals who uphold them! And, our future depends on the Biden-Harris Administration putting these folks “in the game” to insure that an unmitigated disaster like the Trump regime, it’s rampant illegality and inhumanity, and its “malicious incompetence” can never, ever, happen again! And, we must at least start the process of developing a better and more courageous Federal Judiciary for the future!

Due Process Forever! Complicity in the face of tyranny, never!

PWS

11-23-20

COURTSIDE WINTER FASHION EDITION: See The Latest In Due Process & Racial Justice Sportswear Design By Our Award-Winning NDPA Fashion Team!

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“A Brand New EOIR For A Better America!”⚖️🗽🇺🇸👨🏽‍⚖️👩‍⚖️👨🏻‍⚖️👍🏼😎

Due Process Forever!

PWS

11-22-20

⚖️🗽NDPA “PRACTICAL SCHOLARS” CORNER: Professors Elizabeth Keyes & Kate Evans On How To Combat “Billy The Bigot’s Bogus Law” Masquerading As “Legal Analysis” In Matter of Negusie! — How To Apply “Extreme Legal Duress” To Billy’s Intentional Misconstruction Of The Duress Defense!

All,

In the hopes this will be helpful to any of you who are dealing with Negusie issues, I wanted to share my forthcoming article on Duress in Immigration Law, which evolved from my own litigation in this arena. As we challenge this new AG decision (for however long it lasts!), I highly, highly recommend Kate Evans’s Drawing Lines Among the Persecuted, as well.

I am so looking forward to critiquing the AG’s decision thanks to the scholarship Margaret Taylor and Maureen Sweeney have done around deference in the context of AG certification. This community is unendingly helpful!

Liz

Elizabeth Keyes

Associate Professor, Director of the Immigrant Rights Clinic

University of Baltimore School of Law

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

Thanks for sharing, Liz & Kate!

Soon, Billy will be peddling his bias, bigotry, and balderdash in Breitbart News or the National Enquirer where it deservedly will get little notice outside the “Twilight Zone” where Billy and his buddies operate! (Sorry, Billy, but you might have fallen below the “Fox News Threshold!”)

Folks like Liz and Kate are leading intellects with experience and credentials earned by working in the trenches at the “retail levels” of our now-cratering justice system! They would solve problems, “get this system working” the way it should, and make equal justice for all a reality!

I hope that the Biden-Harris Administration will give them, and others like them, many women and minorities, a chance to do just that when it comes to filling judicial and public policy positions! We need to get the immense brain power, humanity, energy, and positive leadership currently available in the private, NGO, and clinical academic sectors into public policy positions where they can achieve “maximum common good” for all of us!

Due Process Forever!

PWS

11-09-17

🇺🇸⚖️🗽🛡⚔️😎👍ANOTHER NDPA/ROUND TABLE VICTORY OVER DHS/EOIR SCOFFLAWS – 2d Cir. Applies Constitution To Bond Hearings – Says Burden On DHS To Show “Clear & Convincing” Evidence For Imprisonment In Gulag – Velasco Lopez v. Decker

Velasco Lopez v. Decker, 2d Cir., 10-27-20, published

Here’s a link to the opinion:

19-2284_op

Here’s a link to the Round Table’s amicus brief:

https://drive.google.com/file/d/16RkOlBfGLEn_RfBEZqQDmhrY7aBhA70P/view

PANEL: PARKER, CHIN, AND CARNEY, Circuit Judges

OPINION BY: BARRINGTON D. PARKER, Circuit Judge

SUMMARY:

The Government appeals from a judgment of the United States District Court for the Southern District of New York (Carter, J.), granting Carlos Alejandro Velasco Lopez’s petition for a writ of habeas corpus. Velasco Lopez was detained pursuant to 8 U.S.C. § 1226(a), which provides for discretionary detention of noncitizens during the pendency of removal proceedings. His habeas petition challenged the procedures employed in his bond hearings, which required him to prove, to the satisfaction of an immigration judge, that he is neither a danger to the community nor a flight risk. We hold that the district court correctly granted the petition, and provided the correct remedy by ordering a new bond hearing in which the Government bore the burden of showing by clear and convincing evidence that Velasco Lopez was either a danger or a flight risk.

KEY QUOTE:

The irony in this case is that, in the end, all interested parties prevailed. The Government has prevailed because it has no interest in the continued incarceration of an individual who it cannot show to be either a flight risk or a danger to his community. Velasco Lopez has prevailed because he is no longer incarcerated. And the public’s interest in seeing that individuals who need not be jailed are not incarcerated has been vindicated.

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

Judge Parker is correct insofar as he cogently states what should be a “win-win-win” under a functioning Government. I wholeheartedly join lead counsel Julie Dona of the Legal Aid Society, NY, in appreciating and recognizing Judge Parker’s understanding of the grim realities of today’s mal-functioning Immigration Courts and the important Constitutional rights being abridged by DHS & EOIR (essentially one and the same under the Trump kakistocracy).

But, that statement of how Government should be functioning glosses over the unfortunate reality of the Trump regime’s lawless, White Nationalist, nativist immigration agenda. The Trump regime doesn’t seek to create “win-win-win” situations! Instead, they seek to make political statements, dehumanize and degrade “the other,” and promote the biases of their “base” over sound public policy that benefits the common good.

The purpose of imprisonment in the Trump Gulag all too often has little or nothing to do with the legal criteria of danger to the community or flight risk. Rather, detention in the Gulag is used by the Trump regime’s DHS, with the connivence of the DOJ and often the courts, to punish individuals who choose to assert their legal rights; make it more difficult for them to obtain effective representation; and to coerce them into abandoning viable claims for relief, appeals, and judicial review. It’s all about punishment and deterrence, not mainly about the public interest, which is ill-served by most of Trump’s biased and counterproductive immigration policies.

DHS detention in the Trump era primarily serves Trump’s political interests and the interests of those running the for-profit prisons comprising much of Trump’s New American Gulag. Any time Trump’s policies match up with a legitimate national interest, it’s purely happenstance, not part of some overall plan to govern in the public interest.

Think things couldn’t get worse? Notorious White Supremacist “Gruppenfuhrer” Stephen Miller plans to go “full-Nazi” if the Trump regime stays in power, as reported by Amanda Holpuch in The Guardian. https://www.theguardian.com/us-news/2020/oct/28/stephen-miller-trump-second-term-immigration-blitz?CMP=Share_iOSApp_Other

Miller’s plans are so explosively ugly, overtly racist, and anti-American that they are being kept under wraps (for now) because of a (quite legitimate) fear that they could drive the small, yet potentially significant, minority of voters of color that Trump needs to have any chance of extending his rule to do something rational and in their self-interest: Vote for Biden-Harris. Look for things like eliminating birthright citizenship, eradicating all refugee and asylum laws, making it difficult or impossible for family members and people of color to immigrate legally, a wave of summary deportations, deporting “Dreamers,” and exterminating every last ounce of compassion and humanity from our laws. If you think that Black Lives don’t matter much to Trump and his cronies, just wait until he turns the Gruppenfuhrer loose! Think the Federal Courts will stop him? Just look at Trump’s “wholly owned and proud to brag about it” Supremes’ majority! And, he’s also “stacked” — effectively “packed” — the lower Federal Courts with loyalist ideologues.

America can no longer afford life-tenured judges who treat Trump as “normal” and are unwilling or incapable of “connecting the dots” among the dehumanization and demonization of migrants, institutionalized racism, and the end of American democracy. Immigrants’ rights are human rights; human rights are Constitutional rights; dehumanization of “the other” dehumanizes us all!

It’s past time that America stopped granting the privilege and responsibilities of life-tenure to those who won’t publicly adhere to those fundamental truths! Not rocket science! Just basic Constitutional law and human decency! Better judges for a better America! It all starts with a better President and a better Senate! That’s why this election might be our final chance to take back our country and preserve our democracy!

Due Process Forever!

PWS

10-28-20

NDPA SUPERHEROINE 🦸‍♀️ HILLARY SCHOLTEN IS IN THE “HOME STRETCH” OF HER RACE IN THE MI-3 DISTRICT — Join Rep. Joaquin Castro & Us On Oct. 28 To Help Hillary Dash To The Finish Line With A HUGE Win In One Of The Key Congressional Contests Of 2020!🇺🇸🗽⚖️

Click here for the link to the invitation to this great and timely event:

10.28 Virtual Discussion on Immigration Invite

A victory for Hillary is a win for the people of Michigan’s 3rd Congressional District (who will get A++++ representation from one of the smartest, hardest working, most innovative, most dedicated, most capable, bravest, nicest, and most caring individuals I have ever known) and for justice and good government in America. Hillary Scholten is America’s bright future!

Go Hillary!🇺🇸

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

PWS

10-26-20

NDPA RESOURCES: “Law You Can Use” From All-Star Practitioners Jason Dzubow and David Cleveland – How To Use The COVID-19 “Lull” To Improve Your Client’s Chances of Winning Asylum! ⚖️⚖︎ 😎

https://www.asylumist.com/2020/04/16/what-you-can-do-while-courts-are-closed-get-a-copy-of-your-file/

From The Asylumist:

Have an asylum case in Immigration Court and wondering what to do while the courts are closed? My friend David L. Cleveland has a suggestion: Get a copy of your file from the Asylum Office. David is a lawyer in Washington, DC. He has secured asylum or withholding for people from 48 countries. He can be reached at 1949.david@gmail.com.

In most cases, when an asylum applicant has their case denied at the Asylum Office, the case is referred to Immigration Court. There, Immigration Judges sometimes deny asylum because the applicant is deemed incredible. The applicant has told the Asylum Officer one thing, but then tells the Judge something different. There are many examples of Judges being annoyed by inconsistent asylum applicants–

In a New York case, the applicant was inconsistent concerning the location of children and where she was raped. Kalala v. Barr,2020 U.S. App. LEXIS 8320 (2nd Cir. 2020).

in a California case, the applicant was inconsistent concerning the name of a police station. In this case, the Asylum Officer’s notes were shown to applicant for the first time during the Individual Hearing. Sun v. Barr, 2020 U.S. App. LEXIS 5397 (9th Cir. 2020).

In an Ohio case, the applicant testified to being beaten inside a church. When she asked about how many members of the church were present at the time, she first said 15. Later, she testified that six church members were present. Onoori v. Barr,2019 U.S. App. LEXIS 21310 (6th Cir. 2019).

David Cleveland ESQUIRE

Now that he has a copy of his client’s file, David Cleveland is finally able to relax.

More generally, Immigration Judges are very interested in what Asylum Officers do and write. In a case decided in 2019, the phrase “Asylum Officer” is used 32 times. Qiu v. Barr,944 F.3d 837 (9th Cir. 2019). In a 2018 case, the phrase “Asylum Officer” is mentioned 57 times, and “notes” (referring to the Officer’s notes from the asylum interview) was mentioned several times. Dai v. Sessions,884 F.3d 858 (9th Cir. 2018). In another case, from 2014, an Asylum Officer named “Kuriakose” is mentioned 15 times. Li v. Holder,745 F.3d 336 (8th Cir. 2014).

In these cases, asylum applicant’s were deemed not credible because their Court testimony was inconsistent with their testimony at the Asylum Office. Most likely, the applicants did not have a record of what they told the Asylum Officer, and of course, since years pass between an asylum interview and an Individual Hearing, it is difficult to remember what transpired at the Asylum Office.

How can I prevent surprise in Immigration Court?

When an Asylum Officer interviews an applicant, the Officer takes detailed notes. Often, these run to 10 pages or more. Later, in consultation with his supervisor, the Officer writes an “Assessment to Refer” or an “Assessment to Grant.” This document is usually three or four pages long. If the case is referred to Court, these notes do not go to the Immigration Judge. However, they are sent to the DHS attorney (the prosecutor), who can review them and look for inconsistencies. At the Individual Hearing, the DHS attorney can use the notes to impeach an applicant’s credibility (“At the asylum interview, you testified that there were 15 people present in the church when you were beaten, but now you say there were only six. Were you lying then, or are you lying now?”).

Asylum Officers sometimes make mistakes or include unexpected information in their notes. They find some sources of information important and ignore other sources. In short, there is a subjective element to these notes that can sometimes work against the applicant and cause surprises in Immigration Court. And, as any attorney will tell you, surprises in Court are usually bad news.

To avoid a surprise in Court, and to find out what the officer wrote, the advocate should make a Freedom of Information Act (“FOIA”) request for the notes and the Assessment. Asylum Officer notes are easily available via FOIA. To obtain this information, type your request on a single piece of paper: “Give me the notes and assessment of the asylum officer.” State your name, date of birth, place of birth, address, Alien number, and sign under penalty of perjury. You do not need a lawyer; you do not need Form G-639, although you are allowed to use that form. Send your request via email to: uscis.foia@uscis.dhs.gov

In January 2020, I received the entire Asylum Officer assessment for an asylum applicant from Congo. The client and I are now more relaxed and confident about the case. We will not be surprised in Immigration Court. You can read this assessment at the FOIA page of the Louise Trauma Center. A model FOIA request can also be found at the same page.

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

Take it from me, as someone who has presided over hundreds of asylum hearings, this is great advice from two of the best to set foot in my courtroom!

As I always said in my my “mini lectures” on “Presenting an Asylum Case in Immigraton Court:” “Beware and Be Prepared!” Preparation, preparation, preparation! It’s what wins cases (and appreciation from “the bench”).

Thanks, guys!😎👍

PWS

04-16-20

“THE GIFTS OF THE MAGA-I:” DESPAIR, DEHUMANIZATION, DEATH — “[W]e keep wondering, how many 7-year-old girls would need to die for this to be something that would get in the headlines and stay in the headlines for a day or two?”

Kristin Clarens, Esquire
Project Adelante

https://slate.com/news-and-politics/2019/12/trump-tent-cities-mpp-killing-immigrant-children.html

JURISPRUDENCE

Trump’s Tent Cities Are on the Verge of Killing Immigrant Children

By DAHLIA LITHWICK

DEC 23, 20191:17 PM

The tent camp set up by asylum-seekers next to the bridge to the U.S. in Matamoros, Mexico, seen on Dec. 9.

John Moore/Getty Images

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On this week’s episode of Amicus, Slate’s podcast about the Supreme Court, Dahlia Lithwick was joined by Kristin Clarens, an attorney with Project Adelante, a group of multidisciplinary professionals, including lawyers, doctors, ministers, and psychologists, working across the country to help mobilize and concentrate support for asylum-seekers at the border. A transcript of the interview, which has been edited and condensed for clarity, follows.

Dahlia Lithwick: Can you just start by explaining what it is that you do and how as a lawyer you were able to kind of amble in and out of border facilities, detention facilities?

Kristin Clarens: People who previously would have been detained [in the U.S.] are now living in sort of makeshift refugee camps on the Mexico side of the border because of the “Remain in Mexico” policy. So now it’s incredibly easy to amble in and out, as easy as it is for the cartel members and other organized criminals who are circulating in these camps.

The Remain in Mexico policy, the Migrant Protection Protocols, is just about a year old. Can you describe what the world was like before it, what the world has been like since?

The estimates are that there are around 3,000 people [in the tent camp in Matamoros] living just in squalor and in tents, and that 80 percent of them are families with young children. A year ago, in the Rio Grande Valley, most of those people would come to the United States either after asking for permission at a port of entry or after crossing without permission and they would be apprehended, put into one of the temporary facilities that so many of us have seen on the news with the kids in cages and the very overcrowded conditions, lack of sanitation and medical care. After that, the families and young kids were sent to longer-term detention centers where many of us, many lawyers who speak Spanish, have worked across the country.

As of June or July of this year, the United States government started implementing something that they call, I think very ironically, the Migrant Protection Protocols, which is a policy guideline that says that border patrol agents are able to return asylum-seekers to Mexico for the duration of their immigration hearings. So now an asylum-seeker who comes up from Central America arrives in these incredibly sketchy and stressful border towns, asks for asylum at the port of entry, and after a quick trip to one of the cage facilities, they are sent back into the streets of Mexico.

That moment where they’re shoved back into Mexican territory from the U.S. officials is an incredibly vulnerable one. It’s kind of like bad guys lurking on the sides.

Now that you’re looking at the tent cities in Mexico, what kinds of things are you seeing, what kinds of legal aid are you able to provide if you are in Matamoros trying to help?

The legal aid that we’re able to provide at this point is becoming so much more limited because the statistics out now are that 0.1 percent of asylum-seekers who have their cases heard in the MPP courts—many of whom have valid claims, who would have succeeded with time and due process and legal support—0.1 percent are succeeding. Nothing has changed with respect to the nature of the cases—single women who have been persecuted specifically because they’re vulnerable in their home countries by gangs and by other types of organized crime. They’re incredibly vulnerable living in these—it’s just like a tent, the kind of tent that you would take to go camping in the woods in the summer. Except for single women—sometimes pregnant with young children with no other form of support, no network whatsoever—living for months at a time in freezing cold conditions in rain and in superhot conditions the next day, just incredibly exposed on every single level.

The circumstances change almost weekly with respect to the parameters and expectations, the due process provided in the MPP camp, and also, with respect to just the feasibility of [the legal support] we can offer as the numbers of people on the ground grow and the backlog increases in the MPP courts.

The camp facility where people are sort of constrained physically has somewhere between 2,600 and 3,000 people in it at any given day, and it’s growing. But the total number of people who’ve been returned to Mexico under MPP is closer to 68,000. So only a small fraction of the people who need legal services are even visible at this point.

On the ground and at least at Matamoros, people don’t have enough showers, they don’t have enough food. There’s rampant illness. I mean, you are seeing kids with tremendous medical and nutritional and other needs that are not getting that.

There’s sort of a group that’s come onto the scene over the past month that’s providing mobile health care via a clinic and also a humanitarian support to try and improve the shelters. They’re all volunteer based. It’s kind of all of us rolling up our sleeves and trying to figure out the best way to get support in there. But it’s subject essentially to the whims of the Mexican government. At any point, this could be shut down, or relocated, or people could just be forced to scatter. You just don’t know how things are going to unfold when the United States government’s policies might be enjoined, or when the Mexican government may decide that it can no longer tolerate these large refugee camps.

“How many 7-year-old girls would need to die for this to be something that would get in the headlines and stay in the headlines for a day or two?”

— Kristin Clarens

The Mexican government initially restricted humanitarian groups’ access to sort of building things like toilets and showers and did so themselves in Matamoros. But the facilities that they built were really not adequate. They have showers that are not linked to any sort of drainage systems so there’s just big puddles of disgusting water that smelled bad and it’s just really kind of dehumanizing. Prior to the existence of the showers though, people were bathing in the river, which is contaminated with human waste, and people were getting sick and these awful skin infections all over. Little kids were swimming in the same place where little kids were also vomiting and having diarrhea. It’s just kind of a recipe for humanitarian crisis, within 100 feet of an American city.

You’ve been dealing this week with a critically ill child.

It’s really difficult for people who could die at any minute of their illnesses to get medical care in Matamoros for a variety of reasons. It’s hard for them to get around. It’s a scary city and it’s not safe. And so, this past week, we heard about several more critically ill migrants waiting at the tent city, including a 7-year-old who had, I think it can best be described as, sort of a breach in her abdominal wall.

So her fecal matter was leaking out and kind of reinfecting her, kind of getting reabsorbed by parts of her body as she wasn’t able to access clean water or water at all, to drink or to bathe herself to prevent just massive infection that could really quickly turn to a life-and-death situation. So, we did the best we could. I’ve been on the bridge trying to cross with people and been kind of mistreated and treated aggressively by the Border Patrol agents, and I know how scary and hard that is. I can’t imagine having gotten that experience as a 7-year-old girl who has to wear a diaper because her stomach is no longer able to contain her intestines. Fortunately, she was able to cross after, I think, a collective eight or nine hours waiting on the bridge and advocating and negotiating with Border Patrol. She was able to get across and get to the hospital on Tuesday night.

I had to try to twist your arm to get you to come talk about her story, because nobody died so it feels like nobody is going to care?

That’s the sense that I get in trying to focus attention on this in such a stressful time in America. It seems scary. Our government is unstable and stressful right now, and at the same time, these incredible egregious human rights violations are happening at our Southern border. And it’s like, how do we cut through this noise and really stand up for the weakest people that our country is negatively impacting right now? And I don’t have those answers, but we keep wondering, how many 7-year-old girls would need to die for this to be something that would get in the headlines and stay in the headlines for a day or two?

You can listen to Amicus in the player below or via Apple Podcasts, Overcast, Spotify, Stitcher, Google Podcasts, or wherever you get your podcasts.

Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Divided Realities

Lawyers on the crisis at the border, and a cacophony of bad faith in the Capitol.

01:10:57

SHARESUBSCRIBECOOKIE POLICY

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Donald Trump Immigration Mexico

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As the article points out, vulnerable refugees with valid asylum claims that might well have been granted prior to the Trump White Nationalist kakistocracy are now being railroaded without legal representation or any semblance of fairness, impartiality, or due process.

Another way of putting Kristin Clarens’s very valid concerns: “How many seven-year old girls would have to die before complicit, tone-deaf, life-tenured Supreme Court Justices and Article III Appellate Judges take off their blinders, get out of their ivory towers, stop kowtowing to Trump and the forces of White Nationalist darkness and evil, and start seeing Trump’s victims as human beings, or even as their own children or grandchildren?”

Thank goodness for courageous, talented, dedicated folks like Kristin who represent the “True Spirit of Christmas” in an age where kindness, compassion, mercy, and justice have been forgotten and are daily being trampled by the regime, its supporters, and enablers.

Merry Christmas,

PWS

12-25-19

WHITE NATIONALIST ALERT AT JUSTICE: NEO-NAZI SESSIONS REPORTEDLY PROPOSING MASSIVE VIOLATION OF CONSTITUTION, REFUGEE ACT OF 1980, INTERNATIONAL LAW, AND HUMAN RIGHTS STANDARDS WITH RACIALLY TARGETED ABOLITION OF ASYLUM BY REGULATION! – Is Our Republic Teetering On The Brink?

https://www.vox.com/policy-and-politics/2018/6/29/17514590/asylum-illegal-central-american-immigration-trump

LIND REPORTS FOR VOX NEWS:

The Department of Justice, under Attorney General Jeff Sessions, is drafting a plan that would totally overhaul asylum policy in the United States.

Under the plan, people would be barred from getting asylum if they came into the US between ports of entry and were prosecuted for illegal entry. It would also add presumptions that would make it extremely difficult for Central Americans to qualify for asylum, and codify — in an even more restrictive form — an opinion written by Sessions in June that attempted to restrict asylum for victims of domestic and gang violence.

Vox has confirmed that the regulation is in the process of being evaluated, and has seen a copy of a draft of the regulation.

When the regulation is ready, it will be published in the Federal Register as a notice of proposed rulemaking, with 90 days for the public to comment before it’s enacted as a final regulation.

The version Vox saw may change before it’s finalized, or even before the proposal is published in the Federal Register. (The Department of Justice declined to comment.)

But as it exists now, the proposal is a sweeping and thorough revamp of asylum — tightening the screws throughout the asylum process.

One source familiar with the asylum process but not authorized to speak on the record described the proposed changes as “the most severe restrictions on asylum since at least 1965” — when the law that created the current legal immigration system was passed — and “possibly even further back.”

The Immigration and Nationality Act gives the attorney general, along with the Department of Homeland Security, discretion over asylum standards — saying that the government “may grant asylum” to an applicant who they determine meets the definition of a refugee. But the proposed regulation would make it nearly impossible for Central Americans, including families, to earn the government’s approval.

It would eliminate the path that thousands of Central Americans, including families, take every month to seek asylum in the US: entering between ports of entry and presenting themselves to Border Patrol agents. It would make it all but impossible for victims of domestic or gang violence to qualify for asylum — going even further than a June decision from Sessions that sought to limit asylum access for those groups. It would create a presumption against Central Americans who travel through Mexico on their way to the US.

Anyone convicted of entering the US illegally would become ineligible for asylum

What happens under current policy: Under the Trump administration’s “zero tolerance” initiative, all migrants who cross between ports of entry and are apprehended by Border Patrol are supposed to be criminally prosecuted for illegal entry.

That arrest can delay a person’s claim of asylum, but it doesn’t derail it. An asylum-seeker may not get their initial screening interview, which determines whether they’ll be allowed to file an asylum application and get a hearing, until after they’ve been prosecuted and convicted. And they definitely won’t get approved for asylum before their criminal conviction.

But the conviction for illegal entry doesn’t affect the asylum claim; as Customs and Border Protection puts it, the two are on “parallel tracks.”

What would happen under the new plan: The proposed regulation would bar anyone from getting asylum if they’d been convicted of illegal entry or illegal reentry. That means people who asked for asylum when they were apprehended at the border, but were prosecuted first, would get denied asylum.

In effect, under this new regulation, combined with the zero-tolerance prosecution initiative, no one would be able to come to the US and get asylum unless they presented themselves at a port of entry. Many asylum-seekers simply don’t have that option. Smugglers often prevent asylum-seekers from using official ports of entry, and many of those who do come to ports of entry are being forced to wait days or weeks, after being told there’s no room to process them right now. And asylum-seekers who come to ports of entry are often required to stay in immigration detention without bond until their case is complete.

The administration would almost certainly get sued over this provision if it ended up included in the finalized regulation. The Department of Justice (DOJ) has the power to bar people from getting asylum (or other forms of relief from deportation) if they’ve committed “particularly serious crimes.” While there’s no definition of seriousness in the law, lawyers and immigration advocates would likely challenge the idea that illegal entry, a misdemeanor, is “particularly serious.”

But even if that provision is struck down or eliminated by the courts, another proposal in the draft regulation could have much the same effect. It would instruct immigration judges to consider how the asylum-seeker got into the US, and treat it as a significant factor in whether or not to grant asylum (since asylum-seekers have to show they deserve “favorable discretion” from the judge). So even if people who crossed between ports of entry weren’t officially banned from getting asylum, they would have a very hard time winning their cases in practice.

If adopted, the regulation, combined with the zero tolerance initiative, would allow the administration to set up assembly-line justice for asylum seekers, including families, entering the US. People who entered between official ports would be held by the Department of Homeland Security, prosecuted for illegal entry, convicted, then have their asylum applications denied and get deported.

While the Trump administration is currently trying to win the power to detain families for more than 20 days, if this regulation were enacted, they might not even need to. They could deny most asylum claims and deport the claimants within that time.

Victims of domestic or gang violence would be all but banned from asylum

What happens under current policy: US law limits asylum to people who are persecuted because of their race, religion, political opinions, nationality, or membership in a particular social group.

The government has been wrestling for decades with that last classification — what exactly counts as a “particular social group”? — and with whether someone is “persecuted” if they’re victimized by someone other than the government. These questions are key to the fate of many of the Central Americans (including children and families) who have come to the US to seek asylum in recent years, many of whom are claiming asylum based on domestic violence or gang victimization in their home countries.

In June, with a sweeping ruling overturning a case from the Board of Immigration Appeals, Sessions attempted to narrow the circumstances in which someone fleeing domestic or gang violence could qualify for asylum in the US — saying that, generally, victims of domestic or gang violence wouldn’t be eligible for asylum based on their victimization.

As I reported last week, though, US Citizenship and Immigration Services (USCIS) has been cautious in implementing Sessions’s opinion. Most notably, while Sessions decreed that his ruling overturned any precedent that contradicted it, USCIS only told asylum officers to stop using the one precedent decision Sessions explicitly named as moot.

It looks like the DOJ may be trying to use regulation to accomplish the same goal — with even narrower definitions of “persecuted” and “particular social group.”

What would happen under the plan: The proposed regulation would add several restrictions to what could constitute a particular social group: a family, for example, wouldn’t be a social group unless the family had a visible national presence. Interpersonal violence or crime victimization, similarly, wouldn’t be the basis for social group membership unless they were happening on a national scale. Having been recruited by a gang would be explicitly prohibited as grounds for an asylum claim.

To qualify for asylum, an applicant would have to show that the people who persecuted her were also persecuting others on the same basis. Human-rights lawyers worry this could disqualify many legitimate asylum claims. One lawyer raises the example of a gay man in Russia who suffers a violent homophobic attack: Under the proposal, “this would not be persecution on account of sexual orientation unless you could prove that these attackers had previously persecuted other gay men.”

An asylum-seeker would be required to provide an exact definition of her “particular social group” when she was applying for asylum. And she wouldn’t be allowed to appeal a denial, or reopen a claim, on the basis of any group she hadn’t originally named.

It’s extremely difficult for anyone other than a trained immigration lawyer to know exactly what does and doesn’t count as a particular social group eligible for asylum. Under the proposed regulation, however, an asylum-seeker who didn’t know the precise nature of the basis for her persecution would be assumed to not really be a victim of persecution at all.

This standard wouldn’t just apply to final approvals or denials of asylum. The initial step for an asylee is what’s called a “credible fear” screening, during which an asylum officer decides whether the person has a credible fear of going back to their home country. The proposed rule would tighten standards for those, too.

Immigration lawyers and border advocates were already extremely concerned that Sessions’s May ruling would cause asylum officers to radically hike the standards for passing the screening interview (though the USCIS memo posted by Vox suggests that might not be the case just yet). If this regulation were finalized, however, it seems very possible that many people who are currently given the opportunity to apply for asylum would be turned away before they got the chance.

Central Americans would be penalized for not seeking asylum in Mexico

What happens under current policy: Many asylum seekers are Central Americans who come through Mexico to seek asylum in the US. The US is not allowed to simply turn them back and force them to seek asylum in Mexico instead. (The Trump administration is trying to get Mexico to sign a “safe third country” agreement that would allow them to do this, but Mexico appears unenthusiastic.) But the proposed regulation would make it a lot easier to deny their asylum claims based on not having sought asylum in Mexico first.

What would happen under the plan: Under the proposed rule, the government would generally withhold “favorable discretion” (and, therefore, deny the asylum claim) for anyone who had spent more than two weeks in another country en route to the US without seeking asylum there, or who had traveled through more than one country on the way to the US.

Many Central Americans, especially if they take the train through Mexico or travel on foot, take more than two weeks to travel through Mexico. And asylum-seekers from Honduras and El Salvador cross through Guatemala and Mexico to get to the US — meaning that they would almost certainly not earn the “favorable discretion” required to get their asylum claim approved.

Tightening the screws on the entire asylum process

The proposed regulation is extremely broad, with a lot more provisions — all of which would make it much harder for people to seek and get asylum. Some of the remaining ideas in the proposed draft include:

Limiting appeals for asylum-seekers who fail their screening interviews. Under current law, if an asylum-seeker fails her initial “credible fear” interview with an asylum officer, she can appeal for a judge to review her claim with fresh eyes — ignoring the fact that the asylum officer hadn’t found it a credible claim. Under the proposed regulation, judges would only be able to approve a credible-fear claim on appeal if there was clear evidence that the asylum officer had screwed up.

Rejecting incomplete applications first and letting them get completed later. Instead of returning incomplete asylum applications to the applicant and asking her to complete it, the government would reject the application. The applicant would still have 60 days to complete and resubmit the application before it was officially denied, but it’s not clear how applicants would be told about that — or whether they’d read beyond the word “rejected.”

Allowing judges to put evidence into the record on their own. The proposal would allow immigration judges considering asylum cases to unilaterally insert any information from credible sources into the record (as long as both the prosecutor and defense were informed). This provision would make it much easier for judges to insert information claiming that an asylum-seeker’s home country isn’t as dangerous for him as he claims — since asylum cases often hinge on whether there’s anywhere safe in the home country the asylum-seeker could live instead of the US.

Immigrants could be barred from asylum based on traffic offenses… In addition to the new prohibitions on asylum for immigration-specific crimes, the regulation would ban any applicant who’d been convicted of two or three misdemeanors (depending on what they were) from getting asylum.

This would have the biggest impact on unauthorized immigrants living in the US who get arrested and put in deportation proceedings, but ask for asylum to avert their deportation. (Under asylum law, someone can ask for asylum at any point within their first year of living in the US.)

In immigration policy, traffic offenses like driving without a license often don’t count as misdemeanors because in many states unauthorized immigrants aren’t allowed to get licenses. But the draft regulation makes clear that if driving without a license is a misdemeanor in the jurisdiction in question, it counts toward ineligibility.

…and blue states can’t fix eligibility by expunging immigrants’ records. Some Democratic state officials (most notably Gov. Jerry Brown in California) have started to use the pardon power to clear the criminal records of immigrants facing deportation. This regulation would do an end-run around that strategy.

Convictions that had been expunged or otherwise modified after the fact would still count as convictions if there was any evidence that the criminal record had been altered for immigration purposes. In other words, if Brown tried to expunge a record to make someone eligible for asylum, the fact that that’s why he did it would prevent it from stopping their deportation.

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WOW!

WHO WOULD HAVE THOUGHT THAT ADOLF HITLER WOULD LOSE WORLD WAR II, YET HAVE HIS DIRECT IDEOLOGICAL DESCENDANTS IN CONTROL OF THE UNITED STATES OF AMERICA 73 YEARS LATER?

Seems to me that we’re witnessing the end of the U.S. as a democratic republic and the beginning of a Nazi-style, White Nationalist, racist authoritarian regime that, with the help of a complacent Supreme Court led by a spineless Chief Justice and his group of GOP appointed sycophants, is basically tearing up our Constitution, spitting on it, and dismantling our democratic institutions before our eyes.

I do have to admit, however, that becoming a neo-Nazi, White Nationalist totalitarian state is likely to diminish our attractiveness as a destination for immigrants and anyone else: The “Stalin theory” of immigration control. And, I suppose that once the kids have been disposed of by returning them to death in the Northern Triangle, Trump & Sessions will use the cages to keep the rest of us in.

The New Due Process Army might be the last defender of our Constitution and human values!

PWS

06-30-18

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“A Brand New EOIR For A Better America!”⚖️🗽🇺🇸👨🏽‍⚖️👩‍⚖️👨🏻‍⚖️👍🏼😎

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Click here for the link to the invitation to this great and timely event:

Go Hillary!🇺🇸

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As I always said in my my “mini lectures” on “Presenting an Asylum Case in Immigraton Court:” “Beware and Be Prepared!” Preparation, preparation, preparation! It’s what wins cases (and appreciation from “the bench”).

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Anyone convicted of entering the US illegally would become ineligible for asylum

Victims of domestic or gang violence would be all but banned from asylum

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