"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
A family in Tijuana who wanted to request asylum and advocacy groups including Innovation Law Lab sought to intervene in the lawsuit. They argued that a court order keeping Title 42 in place should only apply to states involved with the suit. Summerhays denied their request.
Alicia Duran Raymundo, her partner and their 6-year-old daughter fled El Salvador after gang members threatened to torture and kill them. She said in a news release from her lawyers last week that they wanted to live with extended family in California while pursuing asylum, but instead joined the thousands of migrants living in Mexican border towns while they wait for the U.S. to reopen its doors.
“We’ve tried many times to ask for asylum but they just tell us the border is closed,” Duran said.
Seeking asylum is a legal right guaranteed under federal and international law, regardless of how someone arrived on U.S. soil. Some of those turned away are fleeing persecution, while others pushed out by turmoil in their home countries seek jobs and security.
Though migrants can’t seek asylum under Title 42, they can still be screened under the United Nations Convention Against Torture. But those screenings are more difficult to pass.
Lee Gelernt Deputy Director ACLU Immigrants’ Rights Program PHOTO: ACLU
Lee Gelernt, deputy director of the American Civil Liberties Union’s immigrant rights project, noted that regardless of Friday’s decision, a prior ruling in Washington, D.C., District Court taking effect Monday prevents Title 42 from applying to families who face persecution or torture if they are expelled. Gelernt is lead attorney in that case.
“Hypocritically, the states that brought this lawsuit seemingly care about COVID restrictions only when they involve asylum seekers,” he said. “The lawsuit is a naked attempt to misuse a public health law to end protections for those fleeing danger.”
. . . .
Migrants have been removed from the U.S. nearly 2 million times since Title 42 was first used in March 2020, in some cases to dangerous situations in which they’ve been tortured or raped.
. . . .
Aaron Reichlin-Melnick Policy Counsel American Immigration Council Photo: Twitter
Aaron Reichlin-Melnick, senior policy counsel at the American Immigration Council, predicted that Title 42 is likely to stay in place until at least next year.
Summerhays’ decision signals that while the Biden administration can establish a policy under emergency conditions, terminating it requires a rulemaking comment period that could take six months to a year.
Louisiana and the other states are not arguing that the policy can never end, Reichlin-Melnick said, but they’re imposing judicial roadblocks to delay it. The CDC is likely to try to end the policy again while satisfying the judge’s demands, he said.
In the meantime, he said, “we’re going to see an ever higher number of repeat crossings. Look at the border and tell me Title 42 works.”
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The case is Louisiana v. CDC, WD LA, 05-20–22. Here’s a link to the opinion:
Of course Title 42 doesn’t work! But, it’s never been about a “working” border asylum policy. NO, it’s always been about cruelty fueled by nativist racism!
Nick MIroff, Joshua Partlow, and Josh Dawsey report for the WashPost:
November 21 at 10:18 PM
Central Americans who arrive at U.S. border crossings seeking asylum in the United States will have to wait in Mexico while their claims are processed under sweeping new measures the Trump administration is preparing to implement, according to internal planning documents and three Department of Homeland Security officials familiar with the initiative.
According to DHS memos obtained by The Washington Post on Wednesday, Central American asylum seekers who cannot establish a “reasonable fear” of persecution in Mexico will not be allowed to enter the United States and would be turned around at the border.
The plan, called “Remain in Mexico,” amounts to a major break with current screening procedures, which generally allow those who establish a fear of return to their home countries to avoid immediate deportation and remain in the United States until they can get a hearing with an immigration judge. Trump despises this system, which he calls “catch and release,” and has vowed to end it.
Among the thousands of Central American migrants traveling by caravan across Mexico, many hope to apply for asylum due to threats of gang violence or other persecution in their home countries. They had expected to be able to stay in the United States while their claims move through immigration court. The new rules would disrupt those plans, and the hopes of other Central Americans who seek asylum in the United States each year.
Trump remains furious about the caravan and the legal setbacks his administration has suffered in federal court, demanding hard-line policy ideas from aides. Senior adviser Stephen Miller has pushed to implement the Remain in Mexico plan immediately, though other senior officials have expressed concern about implementing it amid sensitive negotiations with the Mexican government, according to two DHS officials and a White House adviser with knowledge of the plan, which was discussed at the White House on Tuesday, people familiar with the matter said.
The White House did not immediately respond to a request for comment.
According to the administration’s new plan, if a migrant does not specifically fear persecution in Mexico, that is where they will stay. U.S. Citizenship and Immigration Services is sending teams of asylum officers from field offices in San Francisco, Washington, and Los Angeles to the ports of entry in the San Diego area to implement the new screening procedures, according to a USCIS official.
To cross into the United States, asylum seekers would have to meet a relatively higher bar in the screening procedure to establish that their fears of being in Mexico are enough to require immediate admission, the documents say.
“If you are determined to have a reasonable fear of remaining in Mexico, you will be permitted to remain in the United States while you await your hearing before an immigration judge,” the asylum officers will now tell those who arrive seeking humanitarian refuge, according to the DHS memos. “If you are not determined to have a reasonable fear of remaining in Mexico, you will remain in Mexico.”
Mexican border cities are among the most violent in the country, as drug cartels battle over access to smuggling routes into the United States. In the state of Baja California, which includes Tijuana, the State Department warns that “criminal activity and violence, including homicide, remain a primary concern throughout the state.”
The new rules will take effect as soon as Friday, according to two DHS officials familiar with the plans.
Katie Waldman, a spokeswoman for DHS, issued a statement late Wednesday saying there are no immediate plans to implement these new measures.
“The President has made clear — every single legal option is on the table to secure our nation and to deal with the flood of illegal immigrants at our borders,” the statement says. “DHS is not implementing such a new enforcement program this week. Reporting on policies that do not exist creates uncertainty and confusion along our borders and has a negative real world impact. We will ensure — as always — that any new program or policy will comply with humanitarian obligations, uphold our national security and sovereignty, and is implemented with notice to the public and well coordinated with partners.”
A Mexican official, speaking on the condition of anonymity, said that current Mexican immigration law does not allow those seeking asylum in another country to stay in Mexico.
On Dec. 1, a new Mexican president, Andrés Manuel López Obrador, will be sworn in, and it’s also unclear whether his transition team was consulted on the new asylum screening procedures.
The possibility that thousands of U.S.-bound asylum seekers would have to wait in Mexico for months, even years, could produce a significant financial burden for the government there, especially if the migrants remain in camps and shelters on a long-term basis.
There are currently 6,000 migrants in the Tijuana area, many of them camped at a baseball field along the border, seeking to enter the United States. Several thousand more are en route to the city as part of caravan groups, according to Homeland Security estimates.
U.S. border officials have allowed about 60 to 100 asylum seekers to approach the San Ysidro port of entry each day for processing.
Last week, BuzzFeed News reported that U.S. and Mexican officials were discussing such a plan.
Mexico also appears to be taking a less-permissive attitude toward the new migrant caravans now entering the country.
Authorities detained more than 200 people, or nearly all of the latest caravan, who recently crossed Mexico’s southern border on their way to the United States. This is at least the fourth large group of migrants to cross into Mexico and attempt to walk to the U.S. border. They were picked up not long after crossing. The vast majority of the migrants were from El Salvador, according to Mexico’s National Immigration Institute.
After the first caravan this fall entered Mexico, President Enrique Peña Nieto’s administration offered migrants the chance to live and work in Mexico as long as they stayed in the southern states of Chiapas and Oaxaca. Most chose not to accept this deal, because they wanted to travel to the United States.
nick.miroff@washpost.com
joshua.partlow@washpost.com
josh.dawsey@washpost.com
Partlow reported from Mexico City. Dawsey reported from West Palm Beach, Fla.
Let’s see, Trump shrugs off the murder of a Washington Post journalist by Saudi Arabia’s Crown Prince, downplays Putin’s overt interference in our elections, promotes mindless nationalism of the exact type responsible for two World Wars and tens of millions of avoidable deaths, and praises massive human rights violator and murderer Kim even as the latter is duping him on nukes. So, he’s scared to stand up to anyone powerful or for ideals and values that take courage to promote and advance.
But, when it comes to bullying, demonizing, and beating up on harmless but extremely vulnerable and desperate refugees, many of them women, children, and families fleeing for their lives, he excels. What does that tell us about the lack of character of the “man,” and the total lack of judgement and regard for American values of those in the minority who put him in office and continue to prop him up?
This appears to be a reaction to: 1) Federal Courts requiring Trump to follow the law; 2) Mexico’s refusal to be bullied into signing an absurdly inappropriate and totally one-sided “safe third country” agreement; 3) Congresses failure to fund the wasteful “Wall;” and 4) the near total, yet highly predictable, failure of Trump’s racist, White Nationalist inspired “get tough” immigration enforcement policies.
The Federal Courts are likely to permanently enjoin Trump from ignoring the law that specifically allows anyone in the U.S., legally or not, to apply for asylum. Additionally, Trump encourages violence against refugees and creates unsafe, inhumane conditions on the Mexican side of the border. Consequently, the end result of Trump’s intentional “making folks wait in Mexico” policy is likely to be encouraging individuals seeking asylum to enter illegally and then turn themselves in to the authorities to apply for asylum in the U.S.
Meanwhile, the better options of working with the UNHCR and Mexico to promote a multinational approach to protection and to solve the problems in the Northern Triangle causing this humanitarian flow remain unaddressed by the Trumpsters.
Also, when will the “Face of Evil,” Stephen Miller, finally be held accountable for his consistently cowardly and racist attacks on the law and the American legal system?
A federal judge issued a nationwide order temporarily preventing the government from blocking access to abortion services and counseling for teens detained in immigration custody, saying current administration policy and practices probably are unconstitutional.
The order came in a case brought last fall on behalf of a Central American girl in a government-funded shelter that set off a national debate over the constitutional rights of such undocumented teens to terminate their pregnancies.
The late Friday ruling, by U.S. District Judge Tanya S. Chutkan of Washington, allowed the case to proceed as a class action on behalf of any other teens who have crossed the border illegally and while in federal custody may want to seek abortion services. In filings, the U.S. government acknowledged there were at least 420 pregnant unaccompanied minors in custody in 2017, including 18 who requested abortions.
The Trump administration has refused to “facilitate” such procedures for pregnant teenagers traveling alone on the grounds that they had the option to voluntarily return to their home countries or to find private sponsors in the United States to assist them in obtaining procedures.
The policy position marked a departure from that of the Obama administration, whose Office of Refugee Resettlement did not block immigrants in U.S. custody from having abortions at their own expense, and paid for services for teens in cases of rape, incest or a threat to the woman’s life.
In her 28-page opinion, Chutkan, a 2014 Obama appointee, said the change in policy posed irreparable harm to pregnant teens, writing that “ORR’s absolute veto nullifies a UC’s right to make her own reproductive choices,” referring to unaccompanied children.
“The court concludes that ORR’s policies and practices infringe on female UC’s constitutional rights by effectively prohibiting them from ‘making the ultimate decision’ on whether or not to continue their pregnancy prior to viability — a quintessential undue burden,” the judge wrote.
A Justice Department spokesman did not immediately comment on the ruling.
The American Civil Liberties Union, representing the teens, expressed relief at the court action.
“The Trump administration’s cruel policy of blocking young immigrant women in federal custody from accessing abortion is a blatant abuse of power,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a statement. “With today’s rulings, we are one step closer to ending this extreme policy once and for all and securing justice for all of these young women.”
In all, four pregnant teens in custody have asked Chutkan to force the administration to stop blocking access to abortion services. The initial case involving the teen in Texas is still pending in the Supreme Court after the Justice Department took the unusual step of asking the justices to consider disciplining the teen’s lawyers.
Abortion rights advocates and some Democrats in Congress have called for the firing of E. Scott Lloyd, the head of the refugee resettlement office within the Department of Health and Human Services. Court records show that Lloyd has personally intervened to try to block abortion services.
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Read the full article at the above link.
Hard to figure out why guys like E. Scott Lloyd and Jeff Sessions shouldn’t be both 1) fired, and 2) held personally liable under Bivens for knowing and intentional violations of constitutional rights.
“The Trump administration’s latest attempt to punish sanctuary cities hit a snag on Friday when a federal court ruled the Justice Department cannot withhold public safety grants from jurisdictions that refuse to assist federal immigration authorities. Attorney General Jeff Sessions had attempted to prevent cities and states from receiving these funds unless they cooperatedwith immigration officials’ crackdown on undocumented immigrants. The court held that Sessions in fact has no power to attach new restrictions to the grants, rendering most of his new rules unlawful.
MARK JOSEPH STERN
Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.
Friday’s decision marked the second time a court has blocked Sessions’ attempts to penalize sanctuary cities by depriving them of federal grants. It also comes on the heels of a sweeping ruling that froze the most controversial provisions of Texas’ new anti–sanctuary cities bill. Earlier this month, the White House declared that Donald Trump is “restoring law and order to our immigration system.” But in their haste to adopt a restrictionist immigration regime, Trump, Sessions, and their fellow Republicans have shown a consistent disdain for federal statutes and constitutional protections.
Consider Sessions’ latest sanctuary cities imbroglio. In July, the attorney general created new criteria for Byrne Memorial Justice Assistance grants, which dispense hundreds of millions of dollars to state and local law enforcement. Under these rules, jurisdictions would not be eligible for Byrne grants unless they collaborate with Immigration and Customs Enforcement officials. Most pertinent here, law enforcement officials would have to give ICE agents access to local jails and, if the agency is interested in detaining an undocumented immigrant, notify ICE 48 hours before that person is set to be released. Chicago sued, alleging that the new rules were illegal.
Where does Sessions get the authority to impose these conditions on Byrne grants? Nowhere, as Judge Harry D. Leinenweber of the Northern District of Illinois pointed out in his ruling siding with Chicago. The Constitution grants Congress, not the executive branch, authority to impose conditions on federal funding. And Congress has never authorized the Justice Department, which is part of the executive branch, to force Byrne grantees to work with ICE. Sessions simply usurped Congress’ authority to make new rules.
When Chicago sued Sessions over the Byrne conditions in August, the attorney general put out a Trumpian statement asserting that the city “proudly violate[s] the rule of law” by protecting undocumented immigrants. But as Leinenweber explained on Friday, it was Sessions, not Chicago, who was acting lawlessly.
It’s surprising that Sessions would try to meddle with Byrne grants given that his first foray into sanctuary city–bashing failed so spectacularly. In Trump’s first days in office, the president issued an executive order directing the attorney general and Homeland Security secretary to withhold all federal grants and funding from sanctuary jurisdictions. Multiple cities quickly filed suit to defend their sanctuary policies. Sessions’ Justice Department, which apparently realized this order would violate multiple constitutional provisions, told a federal court that in reality, the order was nothing more than a narrow warning to sanctuary cities that the government would enforce current grant conditions.
In April, U.S. District Judge William Orrick blocked the order as an unconstitutional abomination. In his decision, Orrick essentially mocked the Justice Department, writing that he would not accept the DOJ’s “implausible” interpretation as it would transform Trump’s order into “an ominous, misleading, and ultimately toothless threat.” Instead, he analyzed the text of the order and found that it infringed upon constitutional separation of powers; coerced and commandeered local jurisdictions in violation of the 10thAmendment; and ran afoul of basic due process principles.
The White House promptly complained that Orrick “unilaterally rewrote immigration policy for our Nation” in an “egregious overreach.” Ironically, that is almost exactly what Trump had done through his executive order, illegally attaching new conditions to federal funds without congressional approval. Orrick had merely enforced the law; it was Trump who tried to change it unilaterally.
Neither of the Trump administration’s unlawful immigration power-grabs is as startling as SB 4, a Texas bill targeting sanctuary cities that Sessions’ Justice Department has defended in court. Confident in their measure’s legislative success, Texas Republicans turned SB 4 into a compendium of the most draconian possible attacks on sanctuary jurisdictions. The bill compelled local police to enforce immigration law, cooperate with ICE agents, and detain potentially undocumented immigrants; it also censored local officials who wished to speak out against the law. Law enforcement officers who ran afoul of SB 4 would face massive fines, jail time, and removal from office. Government employees who criticized the measure could also be fined and stripped of their positions.”
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Let’s get this straight: the “rule of law” to Sessions means laws aimed disproportionately at Latinos, Blacks, Muslims, undocumented migrants, non-white immigrants, LGBTQ individuals, ethnic communities, jurisdictions that voted for Democrats, legal marijuana users and businesses, innocent victims of civil forfeitures, and “leakers” (many would say “whistleblowers”) who are career civil servants. In other words law enforcement that in some disturbing ways parallels the “Jim Crow” laws in Alabama and other Southern States to which Sessions would apparently like to return (only with a greater emphasis on targeting Latinos, rather than Blacks, although he has little use for the latter now that the confirmation process is complete during which he “conned” a couple of Blacks into saying he wasn’t a racist.)
I remember from my youth hypocritical Southern racists like George Wallace asserting the false mantle of “the rule of law” and “states rights” for enforcing blatantly discriminatory racial laws while stomping on the actual legal and constitutional rights, and often lives, of Black citizens. Sessions has little or no intention of enforcing laws relating to civil rights protections, voting rights, protections for LGBTQ individuals, protections against local police abuses, due process for migrants in and outside of the U.S. Immigration Court process, environmental protection, constitutional conditions of detention, and ethics. Sessions is clearly a liar, if not a perjurer (which he might be) under legal definitions.
We should all be concerned that this totally unqualified and disingenuous individual has been put in charge of the U.S. justice system. I’ve commented earlier on the glaring unsuitability of individuals like Greg Abbott and Ken Paxton to be governing a state with a significant Hispanic population.
And, Stern’s article didn’t even raise Trump’s greatest and most audacious abuse of the rule of law: his totally unjustified and inappropriate abuse of the Presidential Pardon authority by pardoning the unrepentant, unapologetic “Racist Joe.” Think about what “Racist Joe” stands for, as described by a U.S. District Judge who found him guilty of contempt of court after trial for his continuing, knowing, and intentional abuses of the constitutional rights of Latino citizens and prisoners, among others.In what way does “Racist Joe” deserve a pardon? How would you feel if you were a Hispanic citizen or a detainee who had his or her constitutional rights intentionally violated and was victimized by this arrogant, bullying, racist? The innocent suffer while the guilty go unpunished. What kind of “rule of law” is that?
Then think of all the GOP “politicos” who “palled around” with “Racist Joe” and his toxic sidekick Kris Kobach and even sought their endorsements! That’s because it would help with the racist, White Supremacist “core vote” that has allowed the GOP to gain control of much of the U.S. governing structure notwithstanding the party’s extremist views and generally destructive agenda.
This is very reminiscent of how the “White Southern racist base” helped the Democrats maintain a stranglehold on government for the bulk of the mid-20th Century. Assume that the “Trump base” is 20% of the electorate and only 15% fit my foregoing description. That means without the racist White Supremacist vote, the GOP and Trump would have polled around 31% of the popular vote, not enough to win even with the idiosyncrasies of our electoral system that favor the GOP minority!
