"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Kate Morrissey reports for the San Diego Union Tribune:
On the same day the first person in immigration custody in San Diego was confirmed to have the new coronavirus, the American Civil Liberties Union sued for the release of certain high-risk detainees at the region’s two detention centers.
In the lawsuit, ACLU attorneys argue that specific detainees at Otay Mesa Detention Center and Imperial Regional Detention Facility who have pre-existing conditions that would make severe symptoms of COVID-19 more likely should be released in order to protect them from likely exposure to the virus. Some similar cases, filed by other groups around the country, have been successful in getting immigrant detainees released.
This coverage of the coronavirus pandemic is part of your subscription to The San Diego Union-Tribune. We also provide free coverage as a service to our community.
“During this pandemic, we’ve seen institutions at all levels take these really drastic, life-altering measures to preserve public safety and community well being,” said Monika Langarica, an attorney with the ACLU of San Diego & Imperial Counties. “(U.S. Immigration and Customs Enforcement), which oversees massive detention operations across the country, rather than follow the course of these other institutions, has done almost the opposite.”
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Read the rest of Kate’s article at the above link.
Similar suits have produced mixed results throughout the country. While some U.S. District Judges have ordered or threatened to order the release of certain detainees, others have “blown off” legitimate health concerns and the failure of DHS and DOJ authorities to follow health guidelines during the pandemic.
Of course, the idea that social distancing, universal testing, basic hygiene, or individual protective equipment is being employed in any part of the “DHS Gulag” and the Immigration “Courts” is preposterous on its face. Yet, remarkably, some U.S. District Judges prefer the “show me the dead bodies approach” as an alternative to the sensible preventive measures recommended by health professionals. After all, “they are only aliens” in the eyes of the regime and some Federal Judges.
Others, more astutely, have recognized that those stuck in the Gulag and the never-ending dysfunction of the Immigration “Courts” are actually their fellow human beings, most without serious criminal convictions. They are also “persons” under the Fifth Amendment to the U.S. Constitution, entitled to have their health, safety, and lives protected from dangerous and unreasonable actions by the Federal Government.
Gustavo Solis South Bay Reporter San Diego Union-Tribune
Gustavo Solis reports for the San Diego Union-Tribune:
Customs and Border Protection may be violating the law by holding asylum-seeking children longer than the agency is allowed to, according to lawyers who represent migrants along the U.S.-Mexico border.
Lawyers are accusing Customs and Border Protection in San Diego of breaking their own policies and potentially the law by holding migrant children in custody longer than the agency is allowed to.
Under the Flores Settlement Agreement, the federal government generally cannot detain migrant children and their parents together for more than brief periods. The agreement states CBP should not hold children for more than 72 hours and Immigration and Customs Enforcement should not detain them for more than 20 days.
However, asylum-seeking children are routinely held for more than 72 hours in San Diego, according to Erika Pinheiro, a staff attorney with the nonprofit Al Otro Lado.
“We are seeing cases of prolonged detention every day,” she said. “There is no rhyme or reason to it. Sometimes they are released the same day, sometimes it’s a week later. We’ve had cases of people in CBP custody for three weeks.”
Many of the people being held in CBP custody are part of the Remain in Mexico program, which forced asylum seekers to live in Mexico while waiting for their cases to be decided in immigration courts.
The latest example involves a 9-year-old asylum seeker and her mother who have been in CBP custody since Oct. 4, as first reported by KPBS.
The mother and family were released from CBP custody Monday afternoon, Pinheiro said.
That case is particularly disturbing because both the child and mother are reportedly sick — suffering from stomach pain and diarrhea — which could be a separate violation of the Flores Settlement Agreement, the lawyer added.
Apart from limiting the amount of time children can be in federal custody, the Flores Settlement Agreement also establishes basic standards of care that include access to medical care.
A CBP spokesman declined to answer specific questions about the 9-year-old’s case or more general questions about Pinheiro’s claims that the agency is violating the law.
The spokesman said that the agency treats those in its custody with, “dignity and respect,” while striving to, “process individuals as expeditiously as possible,” and noted that, “most individuals are in our facilities for 72 hours or less.”
Specifically, the new policies would abolish ICE’s 20-day limit on detaining families and establish new minimum standards of care for people held in detention centers.
According to CBP’s own policies, “detainees should generally not be held for longer than 72 hours in CBP facility and every effort must be made to hold detainees for the least amount of time required for their processing, transfer, release, or repatriation as appropriate and as operationally feasible.”
Immigration attorney Rose Thompson has seen multiple asylum seekers spend more than 72 hours in CBP custody, including a case of a mother and her adult daughter spending 12 days in CBP custody.
Another asylum seeker said the conditions inside CBP custody were so poor that she asked to be sent back to Mexico, Thompson said.
“It’s horrible,” she said. “It’s not an area that’s intended to detain people for longer than 48 or 72 hours because it’s not comfortable. I don’t know even if there are beds.”
An August 2019 report of conditions inside federal custody noted that the average length of detention for asylum seekers here in San Diego was 3.4 days and more than eight percent of migrants surveyed in the report were held in custody for five days or more.
That report, published by the U.S. Immigration Policy Center, noted that more than 10 percent of asylum seekers in custody reported experiencing medical issues in detention.
The Flores Settlement Agreement also requires the federal government to provide basic care for children in custody. It stipulates that minors most be treated with, “dignity, respect, and special concern for their particular vulnerability.”
Similarly, CBP guidelines regarding medical treatment state that officers are required to report illnesses to a supervisor and document them in an electronic system of record while also seeking or providing medical care in a timely manner.
However, Pinheiro claims that CBP is also violating this aspect of both the Flores Agreement and the agency’s internal policies.
She points to the mother and daughter released from detention on Monday as just the latest example of migrants not receiving adequate care while in custody.
“I have never had a client say they saw a doctor while in CBP custody,” she said.
Conditions of migrants in CBP custody made headlines in June, when a group of lawyers in Texas asked a judge to issue a temporary restraining order and a contempt order calling for CBP to “immediately start processing children for release to parents or relatives,” and provide children with, “basic necessities including adequate food, clean water, medical care, and access to sleep.”
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There is a fairly simple solution for the problem of a Government that disobeys the law. Federal Judges should start throwing “Cooch Cooch,” his subordinates, Barr, and the DOJ lawyers advancing untrue and unethical arguments in support of their “clients’” indefensible positions in jail for contempt of court. In the case of lawyers, like “Cooch Cooch,” Barr, and his subordinates they should also be referred to their respective state bars for disbarment proceedings.
Until these thugs are held accountable, the child abuse and other human rights outrages will continue.
San Ysidro rally focuses on treatment of immigrant women, girls at border
Critics say detention centers deny proper health care, feminine hygiene products
Activists from across the county held a rally Sunday in San Ysidro to highlight the inhumane treatment of immigrant women and girls held at detention centers across the nation’s southern border.
Waving signs saying “stop racism now” and “respect women of color,” the activists chanted “classrooms not cages” and “when immigrant rights are under attack, what do we do — stand up and fight back.”
Gathered on a baseball field near the international border and the Otay Mesa Detention Center, the roughly 60 activists listened to a series of speakers describe reports of poor treatment that women and girls are receiving in detention centers.
“The punishing conditions imposed by the Department of Homeland Security, ICE and Customs and Border Protection on immigrants at the southern border continue to threaten the lives of tens of thousands of vulnerable persons,” said Toni Van Pelt, president of the National Organization for Women, which organized the rally.
Van Pelt said there are an estimated 40,000 to 50,000 immigrants in detention centers along the border and that many are experiencing intolerable conditions.
Women and girls, she said, have experienced sexual assaults, harassment and limited access to feminine hygiene products. In addition, she said they are often not provided interpreters, reproductive health care or mental health care.
Van Pelt drew angry shouts of support from the crowd when she described women and girls being forced to continue wearing soiled undergarments because they aren’t provided proper hygiene products.
Government officials have acknowledged overcrowding and other problems at the detention centers.
President Donald Trump has said conditions are better than they were under the Obama administration. But many reports from immigrant and human rights groups dispute that.
Dolores Huerta, an 89-year-old icon in the feminist and labor movement, was the featured speaker at the rally.
Huerta, who co-founded the National Farm Workers Association, led the crowd in a chant of “Who’s got the power, we’ve got the power — feminist power.”
She also said it’s crucial for activists and others concerned about racism and poor treatment of immigrants to become as politically active as possible.
“There is only one way to change the situation,” she said. “We’ve got to get active out there in these next elections. We are the only ones who can make it happen — we can’t rely on anyone else.”
Among those at the rally were two first-year students at Cal State San Marcos.
“We want people to know that everyone deserves rights, not just one specific group,” said Vanessa Span, a Latina who grew up in Redding.
Kimi Herrera, also Latina, said our country was founded on immigration so it’s important to continue to respect the process.
“Coming from a background of immigrants, I think this is something really important to bring attention to,” said Herrera, who grew up in Glendora.
The rally took place at the Cesar Chavez Recreation Center in San Ysidro.
The true “national emergency” at our Southern Border is the Trump Administration’s attack, led by “Big Mac With Lies,” on our legal asylum system, Due Process, and human dignity. Nowhere is that more evident than within the deadly “New American Gulag”administered by Big Mac for Trump & Stephen Miller. How many more innocent women and girls will be abused by Trump & “Big Mac With Lies” before they are rightfully removed from office?
When President Trump argues that the United States needs a wall along the southern border, he likes to point to San Diego’s success.
There, double and triple barriers fortify the westernmost stretch of the nearly 2,000-mile U.S.-Mexico border as U.S. Border Patrol agents drive SUVs along frontage roads and hover overhead in helicopters.
The militarized border touching the communities of Imperial Beach, San Ysidro and Otay Mesa contributed to a 75 percent decline in crossings in the years immediately after fencing was installed in the 1990s, according to U.S. Customs and Border Protection data.
The decline mirrors a border-wide decrease.Apprehensions of those suspected of illegally crossing the entire Southwest border experienced an uptick in 2018 over 2017 to nearly 467,000 but remained at less than half their peak in the 1980s and 1990s, when the Border Patrol racked up 1 to 1.6 million apprehensions.
President Donald Trump, who’s in a protracted battle to secure congressional funding for his campaign promise to build a wall along the entire length of the Southern border, on Thursday pointed to San Diego’s Mexican neighbor, Tijuana, as an example of what can happen with and without a barrier.
Trump’s proposed wall, based on one of eight prototypes in San Diego, is yet to be authorized by Congress.
“If you go to Tijuana and you take down that wall, you will have so many people coming into our country that Nancy Pelosi will be begging for a wall,” he said from the Oval Office. “She will be begging for a wall. She will say, ‘Mr. President, please, please give us a wall.'”
While it seems unlikely the House speaker would ever beg for a wall, the president has a valid point about fencing’s impact on the border region. Although San Diego’s barrier may stem illegal crossings, its impact is more complicated than Trump’s statement that “walls work” suggests.
In the 1980s, about 40 percent of the Southwest’s illegal border crossings took place at San Diego, said Victor Clark-Alfaro of San Diego State University’s Center for Latin American Studies. The peak year for border apprehensions in the San Diego sector was 1986, when 628,000 migrants were nabbed.
“Tijuana was like a fiesta,” Clark-Alfaro said. “On a single day on a weekend at El Bordo you could find about 1,000 migrants ready to cross to the U.S. side. There was liquor, marijuana, human smugglers, street vendors.”
The defunct bureaucracy known as the U.S. Immigration and Naturalization Service, since replaced by three agencies under the Department of Homeland Security, built fencing along the border at San Diego in 1990, but it was no match for desperate Mexicans.
The migrants created a huge wave of south-of-the-border crossings into the U.S. that was addressed by Republican Pete Wilson, a onetime San Diego mayor who won re-election as California governor in 1994 based on a Trump-like platform of deterring illegal immigration.
“Bill Clinton had to respond,” said David Shirk, director of the University of San Diego’s master’s program in international relations.
In 1994, President Bill Clinton initiated Operation Gatekeeper, a crackdown at the border, and Congress followed up two years later with 14 miles of “triple-layered fence,” according to congressional records. Some of those first fences were made from Vietnam War-era landing mats intended for makeshift helicopter airstrips.
In 2006, Congress authorized “double-layered fencing” along at least 700 miles of border. The full length has yet to be covered with fencing because of delays in acquiring private property, often through court battles. But the San Diego sector received fresh fencing in the mid-1990s and again in the late-2000s.
Experts, many critical of Trump’s overall stand on border security, acknowledge the San Diego barriers, now made of steel bollards and surplus military landing mats, have more or less done their job. The sector went from being the top location for border crossings to a relative ghost town with 26,086 apprehensions in fiscal year 2017, according to the Border Patrol.
A migrant from Honduras passes a child to her father after he jumped the border fence to get into the U.S. side to San Diego, Calif., from Tijuana, Mexico on Jan. 3, 2019.Daniel Ochoa de Olza / AP file
The hardened border, however, pushed migrants to remote areas that have few man-made impediments and are often just World War II-style vehicle barriers known as Normandy fencing, Clark-Alfaro said. Arizona has become a hotbed of crossings, but migrants often die of dehydration. The mountains east of San Diego have also become a crossing zone, where migrants have died from hypothermia.
Some migrants head for the cold Pacific and end up dead or arrested.
“Our beach was invaded by people on pangas, boogie boards,” said Imperial Beach Mayor Serge Dedina, adding that the fortified fencing “didn’t stop the tunnels” used by cartels to ship drugs into California and beyond.
The San Diego-area border security measures have also enticed cartels to dive deeper into smuggling because the barriers drive up prices for guides or coyotes, experts say. Prices have gone from as little as $75 in the 1990s to as much as $7,000 today, said San Diego State’s Clark-Alfaro.
“We’ve made it more profitable for human traffickers along the border,” added Shirk, of the University of San Diego.
However, narcotics continue to make it across the Southwest border, with seizures of heroin in the San Diego sector increasing 59 percentfrom 2016 to 2017, according to the U.S. Drug Enforcement Administration.
The San Diego sector was the top target along the southwest border for heroin smuggling outside points of entry, the DEA said. Eighty-five percent of the synthetic opioid fentanyl that crossed in 2017 entered through the San Diego area, according to DEA data.
Experts argue that one of the biggest influences on border crossings has been the Mexican economy, which has improved enough that many workers would rather just stay home. In Tijuana, home to a booming appliance and TV manufacturing sector, thousands of jobs are up for grabs.
And many of the immigrants from that huge wave in the 1980s and 1990s settled in the United States rather than crossing back and forth for seasonal work, experts say. In effect, they were walled in by the increased border security and are now staying put.
The boosted federal presence along the border also includes an exponential increase in the number of Border Patrol agents since 1990 to more than 20,000 today. At least 85 percent are stationed along the border, according to Shirk’s research.
Much of that increase in personnel came in the years following 9/11, when the Department of Homeland Security was created and crossing the border legitimately became much less casual, Shirk said. Passports are now required for travel in both directions.
The new border-crossing population comes mostly from Central America, where migrants have formed caravans to travel north. People fleeing murderous gangs — some, like MS-13, were born in the U.S. — have mostly sought asylum in the United States legally, although the Border Patrol U.S. Customs and Border Protection says groups of Central Americans have recently tried to rush into the country illegally.
The bottom line on San Diego’s beefed up border, some of which is slated for replacement, is a mixed bag effective at deterring crowds of migrants that will ultimately be undeterred.
“It’s effective at re-routing people,” said John Fanestil, a Methodist minister who has offered communion on the United States side of the fence. “We made it harder to cross the border illegally — more deadly, more costly. But when circumstances are as extreme as they are in Central America, people will demonstrate great determination to cross the border.”
Dennis Romero
Dennis Romero writes for NBC News and is based in Los Angeles.
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As we used to say at the Arlington Immigration Court, “Desperate people do desperate things.” Or, as I have said on “Courtside,” “We can diminish ourselves as a nation, but it won’t stop human migration.”
What would actually help:
Technology, intelligence, undercover resources to combat drug smuggling;
More appropriate and generous application of our existing refugee and asylum laws at the border and in or near the Northern Triangle;
More resources for processing asylum applications at the Ports of Entry;
Expanded legal immigration opportunities, particularly for needed workers, that would more accurately reflect market forces driving today’s “extralegal immigration system;”
Working more closely with the UNHCR, Mexico, and other countries in the Hemisphere to solve the humanitarian problems driving refugee flows.
Why not “get smart” instead of continuing to “play dumb” on migration issues?
