"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.
Melissa Del Bosque Border Reporter PHOTO: Melissadelbosque.comCaitlyn Yates Fellow Strauss Center for International Law & Security PHOTO: Strauss Center
This podcast from Melissa Del Bosque of The Border Chronicle and Caitlyn Yates, who actually works with migrants in the Darien Gap, gives real life perspective on the humanitarian crisis and all the reasons why more cruelty, punishment, and deadly deterrence isn’t going to solve the flow of forced migrants. But, unhappily, policy makers aren’t interested in the voices of those who actually have experience with forced migrants, nor are they interested in learning from the forced migrants themselves — a logical — if constantly ignored — starting point for making sound policy decisions!
Migration and human rights experts have excelled in court and academia. Yet, they have been consigned to wander the political wilderness, their wisdom, expertise, and real world solutions are routinely ignored or mindlessly rejected by both political parties. Colmar – Unterlinden Museum – The Isenheim Altarpiece 1512-16 by Matthias Grünewald (ca 1470-1528) – Visit of Saint Anthony the Great to Saint Paul the Hermit in the Wilderness Creative Commons
Four “takeaways” on what a consensus on migration should be:
Human migration is real;
Forced migration is largely beyond the unilateral control of any one nation;
Deterrence alone won’t stop migration;
More legal pathways for migration are necessary.
We’re a long way from that needed consensus right now!
A robust asylum system is essential to national security. A closed border is as dangerous as an open border. If you close the asylum system, they will just cross illegally. Republicans need the border out of control. This is a trap!
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That’s it in a nutshell! Reality and practicality have nothing to do with it. It’s about the GOP creating chaos and fanning hate! Unhappily, Dems fall for it — every time! That’s why American democracy is on the ropes!
The Dems have ready access to the greatest “treasure trove” of real life expertise and truth about the border in history. Yet, they routinely ignore it and let themselves be “hoodwinked” by GOP nativists peddling lies, hate, and myths. It’s seriously undermining our democracy while squandering human lives and potential!
There’s deep irony in “national security” being disingenuously parroted by a party lead by a demagogue who encouraged actual insurrection against the U.S. Government! Yet Dems and the “mainstream media” fall for it! Gimmie a break!
WASHINGTON (AP) – President Joe Biden is taking a more active role in Senate negotiations about changes to the immigration system that Republicans are demanding in exchange for providing money to Ukraine in its fight against Russia and Israel for the war with Hamas.
The Democratic president has said he is willing to make “significant compromises on the border” as Republicans block the wartime aid in Congress. The White House is expected to get more involved in talks this week as the impasse over changes to border policy has deepened and the money remaining for Ukraine has dwindled.
Republican Sen. James Lankford of Oklahoma, who is leading the negotiations, pointed to the surge of people entering the U.S. from Mexico and said “it is literally spiraling out of control.”
But many immigration advocates, including some Democrats, say some of the changes being proposed would gut protections for people who desperately need help and would not really ease the chaos at the border.
Connecticut Sen. Chris Murphy, the top Democratic bargainer, said the White House would take a more active role in the talks. But he also panned Republican policy demands so far as “unreasonable.”
. . . .
Critics say the problem is that most people do not end up getting asylum when their case finally makes it to immigration court. But they say migrants know that if they claim asylum, they essentially will be allowed to stay in America for years.
“People aren’t necessarily coming to apply for asylum as much to access that asylum adjudication process,” said Andrew Arthur, a former immigration court judge and fellow at the Center for Immigration Studies, which advocates for less immigration in the U.S.
Some of what lawmakers are discussing would raise the bar that migrants need to meet during that initial credible fear interview. Those who do not meet it would be sent home.
But Paul Schmidt, a retired immigration court judge who blogs about immigration court issues, said the credible fear interview was never intended to be so tough. Migrants are doing the interview soon after arriving at the border from an often arduous and traumatizing journey, he said. Schmidt said the interview is more of an “initial screening” to weed out those with frivolous asylum claims.
Schmidt also questioned the argument that most migrants fail their final asylum screening. He said some immigration judges apply overly restrictive standards and that the system is so backlogged that it is hard to know exactly what the most recent and reliable statistics are.
. . . .
WHAT MIGHT THESE CHANGES DO?
Much of the disagreement over these proposed changes comes down to whether people think deterrence works.
Arthur, the former immigration court judge, thinks it does. He said changes to the credible fear asylum standards and restrictions on the use of humanitarian parole would be a “game changer.” He said it would be a “costly endeavor” as the government would have to detain and deport many more migrants than today. But, he argued, eventually the numbers of people arriving would drop.
But others, like Schmidt, the retired immigration court judge, say migrants are so desperate, they will come anyway and make dangerous journeys to evade Border Patrol.
“Desperate people do desperate things,” he said.
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Ignoring both the powerful forces that drive human migration and folks who actually work with migrants at the border and in foreign countries seems like a totally insane way to “debate policy.” But, then, whoever said this “nativist-driven debate” on enhanced cruelty, dismantling the rule of law, and de-humanization is rational?
You can read Rebecca’s full article, with an “accessible” explanation of what’s at stake and what’s being proposed at the above link.
The settlement involves a 2018 lawsuit filed by the American Civil Liberties Union to block the Trump administration’s “zero tolerance” policy, which called for separating parents from their children to prosecute the adults for crossing the border illegally. Officials sent parents to detention centers and children to shelters, without a plan to reunite them, under the policy. Some were apart for months, some for years.
“It does represent, in my view, one of the most shameful chapters in the history of our country,” U.S. District Judge Dana M. Sabraw said before he approved the settlement in a hearing that recalled the shock and disbelief surrounding the policy in 2018.
Under the settlement approved Friday, crossing the border illegally will no longer be a reason to separate a family, at least for the next eight years, which is how long that provision will last, lawyers said. The Justice Department has said the government will not prosecute parents for crossing the border without permission, a misdemeanor, or for the felony crime of reentering after being deported.
The settlement also offers aid to once-separated families so that they may apply to stay in the United States permanently. Those who were deported may apply to come back. Their immigration records will be cleared, giving them a fresh start on applying for humanitarian protection such as asylum.
Once they are in the United States, formerly separated families may apply for three-year work permits, six months of housing assistance and one year of medical care, according to the settlement. The families also are eligible for three years of counseling under the settlement.
Sabraw, a Republican nominee, declared the separations unlawful and ordered the families reunited in June 2018, after President Donald Trump halted the policy amid widespread condemnation.
Trump’s zero-tolerance policy ran from May to June 2018. Later, investigations determined that officials separated migrant families throughout Trump’s four-year term, which ended in January 2021.
Biden administration officials said the Trump administration separated more than 4,000 children from their parents, though past estimates have put that figure as high as 5,500. Lawyers for the ACLU, which represented the migrant families in court, estimated that as many as 1,000 children may still be separated from their parents. Advocates are trying to track them down.
The ACLU has called the case the most significant settlement in the organization’s 103-year history.
“This settlement brings much needed help to these brutalized children but there remains significant work to ensure that every family is now reunited and to monitor that no future administration tries to circumvent the agreement and reenact the same horrific policy,” Lee Gelernt, an ACLU lawyer and the lead counsel in the case, said in a statement.
. . . .
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Read the rest of Maria’s report at the link!
The human and fiscal costs of this illegal policy, developed and implemented by GOP White Nationalist child abusers, is beyond comprehension! Some of the damage can never be repaired!
Notably, there has never been any accountability for the architects of this clearly unconstitutional abuse and the Government attorneys who failed to do “due diligence” and misrepresented the facts surrounding child separation in Federal Court. The truth was only brought out when the ACLU was forced to do the DOJ’s job for it! It’s also curious how a prohibition on clearly unconstitutional conduct could have only an “eight year shelf life.”
But, there are even worse developments on the horizon — immoral, illegal, and unconscionable policies under consideration that will dwarf even this horrible episode in terms of preventable deaths, disregard for humanity, dereliction of duty, moral cowardice, and degradation of our nation!
Why are Dems ignoring their “core supporters” and negotiating with this notorious human rights abuser! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
So why are Dem legislators and the Administration “negotiating” even more outrageous legal violations, moral transgressions, and human rights abuses with the GOP? Talk about “shameful!” If Dems don’t get some backbone and live up to their professed values and the law, “shameful” will have a whole new meaning!
Here’s a link to tell your Congressional representatives to “just say no” to the truly repulsive proposals to bully and inflict pointless harm on the most vulnerable and to arrogantly violate human rights on a massive scale being pushed by theGOP and some so-called Dems.https://lnkd.in/gp2RteRr.
Trading away human rights that are not yours to dispose of for unrelated foreign military aid is beyond unconscionable! 🤮
U.S. immigration law and policy, including border security and asylum, have nothing to do with Ukraine, NATO, Russia and Putin. Right?
Wrong, if you are a Republican in Congress. Here, let Sen. John Cornyn (R-TX) explain: “I think … Schumer will realize we’re serious … and then the discussions will begin in earnest.”
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If you are still having trouble with the concept, I’ll translate for you: “Yes, we understand and agree that Russia cannot be allowed to take over Ukraine, and we will fund aid to Ukraine, but in exchange, we insist on fundamental changes to our immigration laws to make sure no more Brown people come to America, starting right effing now.” (“Brown,” in this context, means anyone who is poor, Latin American, Asian, African, non-Anglophone…you get the idea.)
How will this play out in the next few weeks? I see three options: 1) Biden and the Dems cave, so the 1980 Refugee Act is scrapped, Dreamers get deported, the southern border is further militarized, and the economy tanks because a good chunk of the workforce is afraid to come to work; or 2) the GOP does a Tuberville and caves; or 3) the Unknown Unknown.
Stay tuned…
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Thanks for telling it like it is, Dan! There is no validity to the GOP’s attempt to punish asylum seekers by unconscionably returning them to danger and death with no process.
The cruelty and threat to life from forcing desperate seekers to wait in dangerous conditions in Mexico, pushing them to attempt entry in ever more deadly locations along the border, detaining them in inhumane substandard prisons in the U.S., and or returning them without meaningful screening by qualified independent decision-makers is overwhelming. That Congress, the Administration, and much of the “mainstream media” choose to ignore, and often intentionally misrepresent, truth and reality about the horrible human and fiscal wastefulness of “border deterrence” doesn’t change these facts!
The Administration’s three year failure to build a functional, robust asylum system at the border with humane reception centers, access to legal assistance, a rational resettlement system, and sweeping, readily achievable, administrative reforms and leadership changes at EOIR and the Asylum Office (as laid out by experts, whose views were dismissed) is also inexcusable.
Yet, the media misrepresents this farce as a “debate.” It’s a false “debate” in which neither disingenuous “side” speaks for the endangered humans whose rights and lives they are bargaining away to mask their own failures and immorality.
Jennifer Habercorn and Burgess Everett report for Politico:
A growing number of Senate Democrats appear open to making it harder for migrants to seek asylum in order to secure Republican support for aiding Ukraine and Israel.
They are motivated not just by concern for America’s embattled allies. They also believe changes are needed to help a migration crisis that is growing more dire and to potentially dull the political sting of border politics in battleground states before the 2024 elections.
“Look, I think the border needs some attention. I am one that thinks it doesn’t hurt,” said Sen. Jon Tester (D-Mont.), one of the Senate’s most vulnerable Democrats in next year’s midterm election.
Tester said he’s eager to see if a bipartisan group of negotiators can come up with an agreement on a policy issue as elusive as immigration. While he refused to commit to supporting a deal until he sees its details, he didn’t rule out backing stronger border requirements. And he’s not alone.
“I am certainly okay with [border policy] being a part of a national security supplemental,” said Sen. Tammy Baldwin (D-Wis.), another Democrat facing reelection next year. On changes to asylum policy, she said: “I would like to see us make some bipartisan progress, which has eluded us for years. The system’s broken.”
. . . .
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Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings Law
Meanwhile, the GOP’s proposal to essentially end asylum — going well beyond the unfair and unduly restrictive policies already imposed by the Administration — has been condemned in the strongest possible terms by human rights and immigration experts. For example, here’s what Professor Karen Musalo, Founder & Director of the Center For Gender & Refugee Studies at Hastings Law, and an internationally-renowned human rights expert, said yesterday:
CGRS Urges Senators to Reject GOP Push to End Asylum
Nov 28, 2023
As negotiations over President Biden’s supplemental funding request continue, the Center for Gender & Refugee Studies (CGRS) urges lawmakers to reject Republican-led proposals that would upend the U.S. asylum system and eviscerate life-saving protections for people fleeing persecution and torture. If enacted, they would erase our longstanding tradition of welcoming asylum seekers and lead to the wrongful return of refugees to countries where they face persecution or torture, in violation of international law.
“These radical proposals amount to a complete abandonment of the U.S. government’s legal and moral obligations to extend protection to refugees fleeing persecution,” Karen Musalo, Director of the Center for Gender & Refugee Studies (CGRS), said today. “In practice, they would result in the persecution, torture, and deaths of families, children, and adults seeking safe haven at our nation’s doorstep. It is utterly shameful that Republican lawmakers are attempting to exploit the budget negotiations process to advance an extremist, anti-immigrant and anti-refugee agenda. The lives of people seeking asylum are not political bargaining chips. We urge lawmakers to join Senator Padilla and other congressional leaders in rejecting these cynical proposals.”
Read the complete Politico article at the first link above.
To me, expressions like “attention” and “bipartisan progress” used by Dem politicos in connection with the Southern border are “code words” for appeasing the GOP nativist right by agreeing to “more border militarization” and “abrogation of the human rights of refugees and asylees!”
I see little “attention” or “bipartisan progress” being discussed on measures that, unlike the GOP “end of asylum/uber enforcement” proposals, would actually address the humanitarian situation on the border (and elsewhere) in a constructive and positive manner:
More, better trained, expert Immigration Judges and Asylum Officers;
Organized resettlement assistance and expedited work authorization for asylum applicants;
Legal assistance for asylum seekers;
An independent Article I Immigration Court;
Revision of the refugee definition to more clearly cover forms of gender-based persecution;
Increased DHS funding for sophisticated undercover and anti-smuggling operations targeting smugglers and cartels;
Adjustment of status for long-term TPS holders.
These are the types effective measures that have long been recommended by experts, yet widely ignored or even directly contravened by those in power. The negative results of “enforcement only” and “extreme cruelty” at the border are obvious in today’s continuing humanitarian situation.
The idea that a forced migration emergency will be “solved” by more draconian enforcement, eradication of human rights, and elimination of due process, as touted by GOP nativists, is a preposterous! Yet, many Dems seem ready, even anxious, to throw asylum applicants and their advocates under the bus — once again!
Unhappily, Congress and the Biden Administration have paid scant attention to the views of experts and those actually involved in relieving the plight of asylum seekers at the border. The politicos continue to dehumanize and demean forced migrants while stubbornly treating a human rights emergency as a “law enforcement crisis” that can be solved with more cruelty and repression.
As experts like Karen Musalo continue to point out, experience shows us that more deterrence and harshness will only make things worse, squandering resources and attention that could more effectively be used to address and alleviate unnecessary human suffering and finally making our refugee and asylum systems function in a fair and efficient manner.
Yet, politicos are more interested in grandstanding, “victim shaming,” and finger pointing than in achieving success and harnessing the positive potential of forced migration for countries like ours fortunate enough to be “receivers” rather than “senders!”
Ending asylum will NOT stop refugees from coming — at least in the long run. Every Administration manipulates or misrepresents statistics to show immediate “deterrent” effect from their latest restrictionist gimmicks (some ruled illegal by Federal Courts). But such “bogus successes” are never durable!
As the current situation shows, decades of failed deterrence merely creates new flows, in different places, piles up more dead migrant bodies, and surrenders the control of border policies to smugglers and cartels. That, in turn, fuels calls by restrictionists and their enablers for harsher, crueler, and ever more expensive (and profitable to some) sanctions imposed on some of the world’s most vulnerable humans.
If asylum ends, America will find itself with a larger, less controllable reality of a growing underground population of extralegal migrants. Contrary to nativist alarmism, this population has remained largely stable recently.
But, that will change as the legal asylum system contracts. Right now, most asylum seekers either apply at ports of entry (often undergoing unreasonable and dangerous waits and struggling with the dysfunctional “CBP One App”) or voluntarily surrender to CBP shortly after entering between ports. The GOP and Dem “go alongs” are determined to change that so that those seeking refuge will have no choice but to be smuggled into the interior where they can become lost in the general population.
This, in turn, will fuel demands by GOP White Nationalists and their Dem enablers for even more expensive and ultimately ineffective border militarization. It will also turn DHS into an internal security police.
Unable to “ferret out” and remove the underground population — because, in fact, they look, act, and are in many cases indistinguishable from native-born Americans and often perform essential services — they will concentrate on harassing and spreading fear among minority populations in America. Also, Trump has also promised that if re-elected, he will abuse his Executive authority to punish his critics and political opponents. Further empowerment of DHS in the interior would be handy in this respect.
Underground populations are also more susceptible to exploitation — another unstated objective of GOP restrictionist policies. What’s better for employers than a disenfranchised workforce who can be fired and turned over to DHS if they demand fair wages or better treatment?
Senate Dems appear to be on the verge of doing precisely what Karen and other experts have repeatedly warned against: using the lives and rights of asylum seekers as a “political bargaining chip” to appease the GOP right and secure military funding for Israel and Ukraine. It’s exactly what happens when experts and those with “on the ground” experience dealing with forced migrants are “locked out of the room” where decisions are made!
While White Nationalist neo-fascists like Stephen Miller and his cronies have remained “at the heart” of GOP policy making on eradicating human rights and punishing asylum seekers, lifetime experts on human rights and asylum find themselves reduced to the role of “outside critics” and “kibitzers” as the Dem Administration and Senate Dems bumble along on the border and human rights. That’s a shame that will certainly diminish and threaten the future of American democracy! And, it’s hard to see how appeasing the GOP restrictionist right will help Dems in 2024!
Three principles are at the core of Andy’s article:
. . . .
International Obligations and Refugee Protection
Key international obligations regarding refugees also play a crucial role in shaping the discourse. The United States, as a signatory to the 1967 Protocol to the United Nations Convention relating to the Status of Refugees, is bound by several obligations, including:
Non-refoulement: Prohibiting the return of refugees to countries where they would face persecution or harm based on their race, religion, nationality, political opinion, or membership in a particular social group.
Access to asylum procedures: Ensuring a fair and accessible process for individuals to seek asylum and present their claims for protection.
Non-discrimination: Preventing discrimination against refugees based on factors such as nationality or place of entry.
. . . .
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Read the complete article at the link!
I think that the U.S. is in violation of all three of these essential, mandatory legal obligations.
Gimmicks like Title 42, “Remain in Mexico,” coercive detention, “CBP One,” and artificial roadblocks for those applying between ports of entry have violated and continue to violate our “non-refoulment” obligation.
These provisions, along with conducting interviews in detention settings, improperly limiting access to representation, and “expedited dockets” to limit the ability to prepare and present claims are examples of violations of our obligation to provide “fair access” to our asylum system.
And, by intentionally designing our system to discourage and deny applicants of color from the Western Hemisphere, Africa, and Muslim nations, and imposing illegal higher burdens on those not applying at ports of entry, we clearly are violating the “non-discrimination” requirement.
The GOP answer is simply to double down on the violations and abrogate our domestic and international obligations. While the Biden Administration at least nominally acknowledges these obligations, their actions and policies, some actually carried over or borrowed from the Trump Administration, blatantly undermine these principles of protection.
Indeed, the whole “movement” by both parties to use the refugee/asylum system for “rejection and deterrence” rather than “enhanced protection” is a “bipartisan legal and moral travesty!”
What if our “number one priority” was what it should be: Establish a world-class, expert, efficient, robust, generous system that is driven by, and true to, these three governing obligations?
Only after achieving that can we discuss and achieve “border security” in a realistic and effective manner! And, it couldn’t possibly be more expensive, in both fiscal terms and human lives cost, than decades of costly failed deterrence gimmicks and schemes! It’s a case of badly screwed up priorities aggravated by political cowardice!
Institutionalized cruelty, deterrence, and unlawful behavior by our Government has failed to create order at the border and has demonstrably destroyed or diminished human lives. Why not give adherence to laws and to humanitarian values and principles a chance?🤯
We can diminish ourselves as a nation, but it won’t stop human migration!
This article is a collaboration between The Border Chronicle and TomDispatch, a great outlet which has been looking at U.S. foreign policy, the military industrial complex, the “forever wars,” climate change, and many other topics since 2001.
On September 23rd, at about 2:30 a.m., a Border Patrol surveillance camera captured two people crossing the international boundary between Mexico and the United States on the outskirts of Nogales, Arizona. A Border Patrol vehicle arrived quickly, but not before one of them had fled back into Mexico. When an armed agent stepped out, dressed in a forest-green uniform, he found a 16-year-old girl from Mexico softly crying, while holding her month-old baby swaddled in a blanket.
The agent commanded her to get in the vehicle. As they then drove to the Nogales Border Patrol station, the girl, he later reported, tried to speak to him in Spanish through the security partition that separated them. Her tiny daughter, she was telling him, was in distress. Cameras showed that the vehicle stopped for all of 10 seconds before continuing. The agent later claimed he couldn’t understand what she was saying and that he wanted to find a fluent Spanish speaker at the station. He didn’t realize, he insisted, that the infant was struggling to breathe, though the child soon died.
This hellish story of suffering at our border is but one of hundreds of similar tales of horror from 2023. They illustrate a fundamental truth about that border: it neither is, nor ever was, an “open” one in the Biden years, nor does the president faintly have an open-border policy, though prepare yourself to hear otherwise — over and over again — in Trumpublican campaign ads next year. They’ll repeat what party officials are already saying all too repetitively: that “President Biden’s radical open borders policies” have created “the worst border crisis in American history.” (While those are the exact words of House Oversight Committee chair James Comer, similar sentiments are already being offered by countless members of the GOP.)
Comer’s claim is, of course, no less predictable than the hardships migrants like that girl are suffering as they try to reach this country. While such border narratives traffic in the unreal, what is real either isn’t effectively reported or gets lost amid all the politically motivated noise. Loud fantasies are expansively covered, while life-and-death stories, like those of that infant and her mother, are seldom reported and, if they are, quickly disappear.
Barely a week before that 16 year old was desperately trying to communicate to the agent in Spanish, the United Nations International Organization for Migration (IOM) labeled the U.S.-Mexico border the world’s “deadliest migration land route.” In 2022, a record 853 remains of dead border crossers were recovered (and this is the U.S. Border Patrol’s figure, which is even higher than the IOM’s), dwarfing the record of 568 set the previous year. Such numbers, the IOM stresses, are known to be distinct undercounts, leaving all too many families pining for lost loved ones.
But those border fatalities weren’t the only record breaker. Another was confirmed just a week after medical personnel at the Nogales station rushed to treat that girl’s baby. The number of border contracts issued to private industry also set a new record. Like those deaths, such contracts soared in fiscal year 2023 to $9.96 billion, instantly stripping the previous high, also set last year, of $7.5 billion.
And mind you, those gifts to industry were made from the highest budget ever (including in the Trump years) for border and immigration enforcement: $29.8 billion. So, don’t for a second think that the U.S. has an “open” border. In fact, it’s never been more fortified or — something few even bother to mention — more profitable, if you happen to be part of the border-industrial complex.
. . . .
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Read the full article at the link.
Maybe it’s because the victims are “only migrants, mostly people of color” and therefore not considered to be “real human beings” by some in the media; maybe it’s because getting the real story about the border requires intensive digging, intellectual expertise, and perhaps some danger; maybe it’s because editors are in search of alarmist “sky is falling” myths about the “border apocalypse” to attract readers, viewers, and “online hits;” maybe it’s because of a false belief that truth is “boring” and “doesn’t sell!”
For whatever reason, the non-Fox networks (Fox is a primary purveyor of the “Big Lie” and the “Open Borders Fantasy”) and “mainstream media” do a really poor job on border reporting.
Those with even a passing familiarity with “talking heads” are no-doubt familiar with claims from nativist GOP politicos, righty reporters, and even some Dems about the mythical a “open borders!” None of these folks have recent experience helping asylum seekers trying to exercise their legal rights under domestic laws, international treaties, and ourConstitution in a border system specifically designed to “discourage and deter” them, rather than identify and promptly grant the many legally sufficient claims for protection.
By contrast, when is the last time you saw real experts — folks like Clinical Professor Steve Yale-Loehr, former Deputy UNHCR and Georgetown Law Dean Alex Aleinikoff, CGRS Director Karen Musalo, HRF Refugee Programs Director Eleanor Acer, UC Davis Law Dean Kevin Johnson, NIJC Executive Director Mary Meg McCarthy, Immigrant Defenders Executive Director Lindsay Toczylowski, Rep. Hillary Scholten (D-MI) or any of the other huge numbers of highly articulate, well-recognized, “hands on practical experts” on human rights and asylum appear on the “talking heads” to throw some truth and real light on this important, nearly totally misunderstood and intentionally misconstrued, issue that GOP nativists have thrust to the forefront of the 2024 campaign?
Meanwhile, Dems should NOT be “running away” from the realities and essential benefits provided by robust immigration and the cruel wastefulness and immorality of Trumps’s proposed neo-Nazi “crackdown” on all forms of migration (although, disgracefully, some Dems are doing exactly that, thus playing into the hands of GOP nativists for absolutely NO return).
Simon Rosenberg Veteran U.S. Political Analyst Hopium PHOTO: Substack
Here are some ideas from Simon Rosenberg at Hopium on Substack on how Dems can make immigration a centerpiece for success in 2024:
Former President Donald J. Trump is planning an extreme expansion of his first-term crackdown on immigration if he returns to power in 2025 — including preparing to round up undocumented people already in the United States on a vast scale and detain them in sprawling camps while they wait to be expelled.
The plans would sharply restrict both legal and illegal immigration in a multitude of ways.
Mr. Trump wants to revive his first-term border policies, including banning entry by people from certain Muslim-majority nations and reimposing a Covid 19-era policy of refusing asylum claims — though this time he would base that refusal on assertions that migrants carry other infectious diseases like tuberculosis.
He plans to scour the country for unauthorized immigrants and deport people by the millions per year.
To help speed mass deportations, Mr. Trump is preparing an enormous expansion of a form of removal that does not require due process hearings. To help Immigration and Customs Enforcement carry out sweeping raids, he plans to reassign other federal agents and deputize local police officers and National Guard soldiers voluntarily contributed by Republican-run states.
To ease the strain on ICE detention facilities, Mr. Trump wants to build huge camps to detain people while their cases are processed and they await deportation flights. And to get around any refusal by Congress to appropriate the necessary funds, Mr. Trump would redirect money in the military budget, as he did in his first term to spend more on a border wall than Congress had authorized.
In a public reference to his plans, Mr. Trump told a crowd in Iowa in September: “Following the Eisenhower model, we will carry out the largest domestic deportation operation in American history.” The reference was to a 1954 campaign to round up and expel Mexican immigrants that was named for an ethnic slur — “Operation Wetback.”
The constellation of Mr. Trump’s 2025 plans amounts to an assault on immigration on a scale unseen in modern American history. Millions of undocumented immigrants would be barred from the country or uprooted from it years or even decades after settling here.
Such a scale of planned removals would raise logistical, financial and diplomatic challenges and would be vigorously challenged in court. But there is no mistaking the breadth and ambition of the shift Mr. Trump is eyeing.
Despite being inhumane and jawdroppingly cruel, this plan is now a major political problem for an already struggling Republican Party for at least three main reasons:
Raids and Mass Deportations Are Deeply Unpopular – We have decades of polling on the forced removal of the 10m+ undocumented immigrants (almost all of whom are employed and pay taxes) in the US, and it is wildly unpopular, perhaps even more so than “abortion bans.” One example – in the 2016 exit polls, in the election that gave Trump the Presidency, the American people choose “offer legal status” to “deported to home country” 70%-25%. Republicans may have a slight advantage on immigration issue right now, but mass deportation is seen as an extreme position by the American people (rightly so). It was so unpopular that the anti-immigration movement dropped mass deportation as a goal, moving to the softer “attrition through enforcement,” or “self-deportation,” political strategy more than a decade ago.
Trump’s plan is another sign of how extremism and extremists have overtaken the party of Lincoln and Reagan.
As I document here, since 2005, when the national Republican Party began adopting a far harder line on immigration (Reagan, W. Bush and McCain were all immigration reformers), the 4 battleground states of the Southwest, AZ/CO/NM/NV, have drifted away from the Republican Party, becoming far bluer. In the last 2 elections we’ve seen the best Democratic performance in that region since the 1940s and 1950s, and a reminder that Biden got within 5 points of Trump in Texas in 2020. In the heavily Mexican-American parts of the country in particular raids and mass deportations are wildly unpopular.
It Was A Plan Like This That Caused The Big Hispanic Protests Across the US in 2006 – In 2005 the Republican House of Representatives bucked their President, George W. Bush, and passed a bill that called for the rounding up and mass deportation of the 11m undocumented immigrants in the country. It was the moment when the party of the Sun Belt and the West went from pro-immigration to deeply restrictionist. Over the next year huge protests against this bill and mass deportation erupted across the US, and Republicans became so spooked that we were able to pass a “comprehensive immigration reform” bill through a Republican Senate in 2006. That bill, like the 2013 immigration reform bill we passed through the Senate, was never taken up by the Republican House and it died.
But those protests did something important politically – after years of Republican gains with Hispanics under W. Bush, Hispanics ran back into the arms of Democrats in 2006 and they have essentially stayed there ever since. In the 2006 midterms Democrats won 69% of the Hispanic vote, among our best performances in recent decades.
In the four Presidential elections leading up to 2006 Democrats averaged 47% of the vote, and in 2004 we lost AZ/CO/NM/NV. In the four Presidential elections since 2006 Democrats have averaged 51% and in 2020 we won AZ/CO/NM/NV at the Presidential level for the first time since 1940. As the Hispanic population has grown across the US and in these states, our net vote margin with Hispanic voters keeps increasing, even if we lose a few points in vote share. As I show here, in 2004 the net Hispanic vote margin for Democrats was about 700,000 votes nationally, meaning we won 700,000 more Hispanic votes nationally than Republicans. In 2020 that number was at least 4.5m net votes across the US, with this same dynamic playing out in each state with large Hispanic populations (except Florida of course).
My instinct is that whatever advantage Republicans had on immigration, and whatever small gains they had made with Hispanic voters in recent years, is now gone.
This Plan Will Wreck The American Economy – In a time of existing wide scale worker shortages, removing 10-15m workers from the American economy in a short period of time would be national economic suicide, and will be seen that way by the business community in DC and in the battleground states. It’s just totally insane and extremist policy no matter how you look at it, and I think it could become as much of a drag on the GOP brand as abortion is now.
For a party which has lost the popular vote in 7 of the last 8 elections, lost the popular vote to Democrats 51%-46% over the past 4, lost the 2018/2019/2020/2022 and 2023 elections, has deep performance issues across the country even in red states since Dobbs, embracing mass deportations seems like a colossal political error.
It is another reason why I think our goal in 2024 should be not just to win, but to really go on offense, get to 55, and make this election an historic repudiation of the worst and most dangerous political party in our history. We can do this people!
Onward/Adelante – Simon
Thank you for reading Hopium Chronicles By Simon Rosenberg. This post is public so feel free to share it.
It’s critical to remember that migrants aren’t the ONLY target of Trump’s neo-Nazism — they might not even be the primary ones! You can guarantee that many US citizens and lawfully present non-citizens of color will be caught up in the dragnet and sent off to deportation concentration camps where due process is non-existent.
Others will simply avoid certain public places and activities for fear of being accosted. Still others will be forced underground because of fear of drawing attention to undocumented relatives or neighbors. Some U.S. citizens will fear voting, which indeed is a key part of the GOP plan to cement their “out of the mainstream” minority rule by suppressing suffrage! As those of us who adjudicated asylum claims know, many will fear reporting abuses or asserting rights to police who openly identify with their oppressors. Fear, despair, distrust, and resignation are key pillars of any authoritarian regime!
It’s attack on all people of color in America and those who might speak with an accent or dress differently from the GOP’s “White Christian Nationalist norms.”
How many of us carry around documentation proving that our parents were U.S. citizens? Notably, although occupational status is often menioned on U.S. birth certificates, citizenship status is NOT. It’s not hard to guess who will be “required” to “document” their parents’ citizenship by Trump’s internal security police!
Trump and the GOP are an existential threat to U.S. democracy, human progress, and American leadership on the world stage. Don’t let them destroy OUR country and take away YOUR rights!
Former president Donald Trump denigrated his domestic opponents and critics during a Veterans Day speech Saturday, calling those on the other side of the aisle “vermin” and suggesting that they pose a greater threat to the United States than countries such as Russia, China or North Korea. That language is drawing rebuke from historians, who compared it to that of authoritarian leaders.
“We pledge to you that we will root out the communists, Marxists, fascists and the radical left thugs that live like vermin within the confines of our country that lie and steal and cheat on elections,” Trump said toward the end of his speech, repeating his false claims that the 2020 election was stolen. “They’ll do anything, whether legally or illegally, to destroy America and to destroy the American Dream.”
Trump went on further to state: “the threat from outside forces is far less sinister, dangerous and grave than the threat from within. Our threat is from within. Because if you have a capable, competent, smart, tough leader, Russia, China, North Korea, they’re not going to want to play with us.”
The former president’s speech in Claremont, N.H., echoed his message of vengeance and grievance, as he called himself a “very proud election denier” and decried his legal entanglements, once again attacking the judge in a New York civil trial and re-upping his attacks on special counsel Jack Smith. In the speech, Trump once again portrayed himself as a victim of a political system that is out to get him and his supporters.
Yet Trump’s use of the word “vermin” both in his speech and in a Truth Social post on Saturday drew particular backlash.
“The language is the language that dictators use to instill fear,” said Timothy Naftali, a senior research scholar at Columbia University’s School of International and Public Affairs. “When you dehumanize an opponent, you strip them of their constitutional rights to participate securely in a democracy because you’re saying they’re not human. That’s what dictators do.”
Ruth Ben-Ghiat, a historian at New York University, said in an email to The Washington Post that “calling people ‘vermin’ was used effectively by Hitler and Mussolini to dehumanize people and encourage their followers to engage in violence.”
“Trump is also using projection: note that he mentions all kinds of authoritarians ‘communists, Marxists, fascists and the radical left’ to set himself up as the deliverer of freedom,” Ben-Ghiat said. “Mussolini promised freedom to his people too and then declared dictatorship.”
“We are still creating [monsters]. We see it in … Russian attitudes toward Ukrainians, in Hindu Islamophobia, and in American racism against Black people,” psychologist David Livingstone, a professor at the University of New England in Maine, told EL PAÍS.
It wasn’t just Germany.
In 1909, a U.S. satirical magazine, Puck, published a cartoon that showed Uncle Sam as a pied piper leading a group of immigrants from Europe. The immigrants were rats. Sending them off: smiling, well-dressed White men.
I appreciate that Marianne LeVine of WashPost was one of the few “mainstream journalists” with the guts to make the painfully obvious connection and comparison between Trump’s insane threats and Hitler, Mussolini, and other horrible dictators!
Marianne LeVine Political Reporter Washington Post PHOTO: WashPost
Even so, it was only “page 2” news in today’s Post, apparently being of far less concern to her editors than the plans of Middle Eastern countries to “upend global sports!” Harkens back to 1936, when participating in Hitler’s “Aryan Showcase Olympics” was more important to the U.S. and other Western Democracies than protesting and condemning Hitler’s ongoing persecution of Jews!
There was a time in the not too distant past when use of racist, neo-Nazi language like Trump’s would have earned an immediate forceful condemnation from politicians across the political spectrum, from the media, and would have ended a candidacy. Now, it’s “just another day at the office.” Hate, lies, racism, and threats by a powerful national politician, a former President no less, cause barely a ripple in our national political dialogue. Not even front page news! Not covered at all by most “legitimate” news outlets! Yet the threat to our nation is real! Very real!
And, in case anyone still doubts the existential threat to American democracy and civilization itself posed by Trump and his anti-American followers, his “plans” include politicization of government, economic chaos, increasing global warming, and destabilization of the U.S. and world economies. See, e.g.,http://enewspaper.latimes.com/infinity/article_share.aspx?guid=019284ab-7357-40c1-91c7-112654eb687a.
Gate at Dachau Creative Commons Trump and his White Nationalist supporters have a grim, dark vision of America’s future! Will this be the end of our democracy?
Christian nationalism is a grave threat to the United States and the American republic. There should be no ambiguity or dullness when it comes to understanding what it is — no matter how benign it may present itself. It is what lurks beyond the veneer that is terrifying. There, the evil is revealed and manifested.
The dogma is a perversion of Christ’s teachings that is antithetical to Christianity. More importantly, Christian nationalism is utterly opposed to democracy. Theocrats despise the United States. God‘s laws are beyond the reach of the American state, and Christianity is but one religion in the beautiful mosaic of American faith. It should always be noted that 600 generations of humans worshipped freely on the North American continent before the first European Christians came and killed them.
The US Constitution is the law of the land in the United States. Within it are the protections that safeguard our liberty. The freedoms of speech, dissent, conscience, worship and expression shall stand untroubled for as long as the great republic endures. We are within one calendar year of its possible end. We have arrived at a moment of grave crisis that cannot be ignored. The abyss that looked distant seven years ago is at hand.
Christian nationalism is incompatible with American democracy and pluralism. When political extremists take power in the name of God there is always death. Always.
I was pleased to participate in “American Theocracy: The Rise of Christian Nationalism,” a documentary released in January 2023. Please watch this clip below. I have shared it before, but the fire keeps building.
The separation of church and state and religious freedom are profoundly important foundational achievements of the American republic. The extremists who seek power in God’s name are not benign men and women. They won’t be deterred by setbacks in Ohio and other places. They are on the march, and they are demanding power whether it is handed to them or not.
I want you to read these words from yesterday’s The New York Times that make clear Donald Trump’s plans:
Former President Donald J. Trump is planning an extreme expansion of his first-term crackdown on immigration if he returns to power in 2025 — including preparing to round up undocumented people already in the United States on a vast scale and detain them in sprawling camps while they wait to be expelled.
The plans would sharply restrict both legal and illegal immigration in a multitude of ways.
Mr. Trump wants to revive his first-term border policies, including banning entry by people from certain Muslim-majority nations and reimposing a Covid 19-era policy of refusing asylum claims — though this time he would base that refusal on assertions that migrants carry other infectious diseases like tuberculosis.
He plans to scour the country for unauthorized immigrants and deport people by the millions per year.
To help speed mass deportations, Mr. Trump is preparing an enormous expansion of a form of removal that does not require due process hearings. To help Immigration and Customs Enforcement carry out sweeping raids, he plans to reassign other federal agents and deputize local police officers and National Guard soldiers voluntarily contributed by Republican-run states.
Let’s call these giant detention and deportation camps what they are intended to be. These are concentration camps. Specifically, they are to be American concentration camps. Dachau was the Nazis’ first camp in Germany.
What will the first American camp look like? There will no doubt be a first, and it will likely be the first to house the political prisoners rounded up under Trump’s invocation of the Insurrection Act. He has promised to invoke it at the instant he returns to power.
Please understand this: Trump is announcing his intentions. He means it. He is surrounded by scores of “little Eichmanns” ready to help him achieve his aims. He should be taken literally and seriously at all times.
The Speaker of the House of Representatives Mike Johnson is second in line to the presidency. He rejects the greatest American idea in history, which is the separation of church and state. The greatest American invention — the peaceful transition of power — is utterly dependent on the separation of church and state in this country.
Johnson denied the 2020 election results, lied about the election results, created the conditions for the insurrection of January 6th, voted to disenfranchise millions of Black votes after the insurrection and continues to insist Trump won the election, despite the claim being a combination of fraud, malice and weapons-grade nuttery. The hostility to democracy is deeply rooted within his religious fanaticism, which is unique amongst the various strains of fanatical faith that have always found a home in America because of our nation’s unique faith protections.
We have churches where people pick up rattlesnakes and kiss them to prove they are protected by God. Proof of sin is a bite to the face and a painful death. Bo and Peep of Heaven’s Gate convinced their followers that they were headed to the Hale-Bopp comet, and Jim Jones took his flock to doom in Guyana. There are cults and fundamentalists all over America, but there is only one strain that wants to control your life by controlling the powers of the state to administer God’s law. They are the American Taliban.
Mike Johnson has invented his own distorted version of history as if the events of the late 1780s-90s occurred 6,000 years ago.
The American Constitution is clear about the founders’ intentions and their descendants’ actions to preserve and expand those intentions. There is no room for theocracy in the American system. It was rejected at hour one. The desire to impose it on all of us by a man who believes people and dinosaurs co-existed at the beginning of time 6,000 years ago is never going to happen…or is it?
The most important thing to understand about theocrats is that they view political power as being mandated by God. In fact, many fanatics across America believe Donald Trump has been sent by him, and his opponents are demonically-inspired.
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We can’t ignore the very real threat that Trump and his GOP followers present to our democracy. Now is NOT the time for Democrats and independents to “go soft” on human rights and immigrants’ rights!
While not highlighted by Steve Schmidt (no relation) the NYT quote above, one of Trump’s initiatives will be to instruct Administration officials to violate the 14th Amendment by denying citizenship to those born in the U.S. based on their parents’ status! USG officials must take an oath to uphold the Constitution, but apparently Trump just plans to summarily fire any public servant who will not submit to his unconstitutional plan!
Those considering abandoning Biden because of his support for Israel should recognize the alternative — a rabidly anti-Muslim authoritarian bigot (who, ironically, has also been soft on those expressing anti-semitism and other purveyors of hate) who would happily try to punish them just for existing! See e.g.,https://www.huffpost.com/entry/biden-gaza-israel-policy-trump-contrast_n_654eb574e4b0c9f246602f16.
It’s worth remembering that one of the first actions of Hitler’s Third Reich was to strip Jews of their German citizenship, a move that the complicit German judiciary approved and enthusiastically implemented! Who would have thought that nearly 90 years later, we would have a major American political party in thrall to a self-proclaimed fascist demagogue!
Advocate and Attorney Making Progressive Policy Accessible and Irresistible
Advocate and Attorney Making Progressive Policy Accessible and Irresistible
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The following post is the final part of my 2017 Black Immigration Primer! I delve into the impact of former President Donald Trump’s early executive orders on Black immigrants, the consequences of which are still being felt today.
It seems like ages since 45 (the former President of the U.S.) issued a volley of executive orders affecting various areas of our lives. Here, I want to talk about the two versions of the Travel Ban (a.k.a. the #MuslimBan) and how they target Black immigrants, Muslim immigrants, and Black Muslim immigrants. The travel bans live at the intersection of anti-Blackness and Islamophobia.
First, some terms and their definitions. Anti-Blackness (also known as anti-Black racism) is what it sounds like: systems, policies, beliefs, and behaviors that are “resistant or antagonistic to Black people or their values or objectives.” We often see anti-Blackness in other communities of color. Some argue that assimilation into American culture is predicated on embracing anti-Blackness (in order to succeed in America, one must separate oneself from Black people and violently oppose Black people’s success). Islamophobia is a “dislike or prejudice against Islam or Muslims, especially as a political force.” It’s important that anti-Blackness and Islamophobia are not merely individual beliefs; they encompass power of the systemic kind. Anti-Blackness and Islamophobia result in harmful, deadly policies and wars.
It’s safe to say that 45 and his administration are a number of things (misogynistic, racist, unethical, evil, and so forth) but they are also distinctly anti-Black and Islamophobic. 45 and his minions’ embrace of anti-Blackness and Islamophobia produced two Travel Bans that harmed hundreds of people. Let’s discuss them in turn. Read more on my blog!
It’s going to take more than $1 million in “security assistance” to a HBUC and $100k to victims’ families to cover up the far right GOP’s responsibility for promoting racism and hate crimes in America. And, the war on immigrants of color is a key part of the racism, Islamophobia, and misogyny that has found a home in the far right of today’s GOP!
Indeed, as I have pointed out on many occasions, MAGA’s hate-fueled campaign to eliminate individual rights in America started with Trump’s lies and distortions targeting migrants of color from Mexico and elsewhere! That’s why Dems’ overall failure to engage with the GOP on immigration, and to vigorously and proudly defend migrants’ rights, has such tragic implications for American democracy!
Melissa Del Bosque writes in the Border Chronicle:
. . . .
While this might seem uniquely cruel, Abbott is closely following the authoritarian playbook of Viktor Orbán, Hungary’s prime minister, and current European thought leader for MAGA Republicans. Donald Trump calls Orbán a friend, and White supremacist Tucker Carlson spent a week covering him for his former show on Fox, later making a “documentary” about Hungary called Hungary vs. Soros: Fight for Civilization. For the last two years, the right-wing Conservative Political Action Conference, founded in the U.S., has held a “Woke Free Zone” conference in Budapest.
By studying Orbán’s crackdown on asylum seekers and its progression over the last several years, you can see exactly where Abbott’s Texas is headed (and DeSantis’s Florida, for that matter).
In a speech in July 2022, Orbán argued that European and non-European people should not mix. Europeans “do not want to become peoples of mixed-race,” he said. After the speech, one of Orbán’s longtime advisers quit in protest. “I don’t know how you didn’t notice that you were presenting a pure Nazi text worthy of Goebbels,” his adviser wrote in her public resignation letter. Orbán’s speech was widely condemned in Europe, and it further alienated him from other Western leaders.
But in Texas, just days after his speech “worthy of Goebbels,” Orbán was welcomed with a standing ovation at the CPAC conference in Dallas, where he touted his “zero migration” and Judeo-Christian nationalism. “The globalists can all go to hell,” he boasted. “I have come to Texas.”
On the same CPAC stage that day, Abbott followed with similar xenophobic talking points. He bragged about Operation Lone Star and encouraged conference-goers to donate to a state-run website to pay for bussing migrants out of Texas. Lieutenant Governor Dan Patrick echoed Orbán’s White Christian nationalism: “The framers did not write the Constitution,” he said. “God wrote the Constitution. We are a Christian nation.”
. . . .
Unsurprisingly, Orbán’s cruel tactics against asylum seekers, which have included kidnappings and beatings, do not deter people from coming. They are fleeing wars, after all. But Orbán has used his poisonous populism to solidify his power, just as Abbott and DeSantis are trying to do. It began with asylum seekers in 2015, but now in Hungary there is no independent media or judiciary, and the LGBTQ community and immigrants have become targets for persecution as the prime minister has consolidated his control over the government. Antisemitism is also on the rise.
This is the playbook that MAGA Republicans are following in Texas, Florida, and elsewhere. We already know how it ends. Orbán’s “illiberal democracy,” which is being lionized by Trump, Abbott, and others, is nothing new. In fact, it’s very old. It’s called fascism.
U.S. asylum laws were designed to protect people fleeing harm. They were enacted in the decades following the Holocaust to ensure that the United States never again turned away people fleeing persecution. But now, many blame these laws for the chaos and inhumanity at the nation’s southern border.
The biggest blow to America’s commitment to asylum came during the pandemic, when former President Donald Trump invoked Title 42, an emergency measure that allowed border agents to turn away asylum seekers, under the justification of preventing the spread of the virus.
When Title 42 restrictions were lifted in May, President Biden enacted a carrot-and-stick approach aimed at deterring new asylum seekers from traveling by foot to the border. These new measures included a set of legal pathways, including a parole program that allows people from select countries, including Cuba and Haiti, to legally enter the country for at least two years, provided they have a financial sponsor in the United States. Doing so has discouraged would-be migrants from taking a dangerous trek with a smuggler, often through multiple continents.
This approach would have been a great step forward if it wasn’t paired with a counter measure that prohibits some asylum-seekers at the border from applying for protection in the United States. The vast majority of migrants must secure an appointment at an official port of entry, which are difficult to obtain, or else they will be subject to expedited removal if they cannot prove that they sought legal protection in another country along the way.
. . . .
If proponents of a secure border are serious about lowering border crossing numbers and decreasing unauthorized migration, they should support Mr. Biden’s attempts to create new legal pathways. Instead, a coalition of Republican attorneys general is challenging the president’s parole program. In Congress, Senate Republicans are trying to eliminate the same parole authority that allowed Afghans to temporarily resettle in the United States. There have been no challenges to the use of the parole authority to bring Ukrainians to the United States.
These actions reveal that our current fight over the border is not about the number of people trying to come here — it is about which should be allowed to come. American voters may not have strong opinions about the future of the asylum system or the legal pathways being created, but voters of both parties dislike the chaos and human suffering that have subsumed this issue for the past 10 years. Over a million American citizens have signed up to sponsor migrants from Cuba, Haiti, Venezuela and Nicaragua.
At a moment of record global displacement, we can’t keep waiting for Congress to modernize our immigration laws. Safe legal pathways are good for the people who use our immigration system. Mr. Biden has taken some critical steps to give migrants better options, but with no hope of congressional action in the near future, more is needed.
Andrea R. Flores is the vice president for immigration policy and campaigns at FWD.us.
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Read the complete op-ed at the link.
Much of what Andrea says echoes what I have said over and over on Courtside and has been repeatedly recommended by experts, who are then largely ignored by the Biden Administration.
As I have argued before, the “low hanging fruit” here would be EOIR reform: A new BIA of “practical scholars;” better IJs with proven asylum and human rights experience; ending “Aimless Docket Reshuffling On Steroids” (which drives many poor policy and legal decisions); and getting some dynamic, fearless, expert leadership on human rights and immigration at the DOJ — which is either the driver or the facilitator of many of the problems at the border, depending on how you look at it.
We can also see how Garland’s lackluster performance on immigration affects other areas of justice such as civil rights, women’s rights, and LGBTQ rights, to name a few of the most obvious ones. Nobody at today’s DOJ appears to possess the “big picture” knowledge and experience to “connect the dots” on these critical issues.
Here’s a report from Hon. “Sir Jeffrey” Chase of the Round Table:
Hi all: As you know, our group filed an amicus brief in East Bay Sanctuary v. Garland, challenging the new rules at the border that would make most of those unable to get an online appointment through an app ineligible to apply for asylum.
District Court Judge Jon Tigar just issued the attached order granting summary judgment to plaintiffs and denying defendants’ motion for summary judgment.
From Judge Tigar’s order:
“Congress granted the agencies authority to impose additional conditions on asylum eligibility, but only those consistent with section 1158…Two of the conditions imposed by the Rule have been previously found to be inconsistent with Section 1158…
The Court concludes that the Rule is contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum. The Rule is also contrary to law because it presumes ineligible for asylum noncitizens who fail to apply for protection in a transit country, despite Congress’s clear intent that such a factor should only limit access to asylum where the transit country actually presents a safe option.”
The order is stayed for 14 days to allow the government to appeal.
Our group has once again helped make a difference in providing fairness and due process. Congrats to all.
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Congrats to the plaintiffs and to my Round Table colleagues!
This was basically a blowout for the plaintiffs on all issues! The USG argument essentially was that complying with the law would be too difficult and/or politically unpopular. Therefore, they have chosen to violate the law and to use rather transparent pretexts (actually misrepresentations about the bogus “presumption”) to evade it.
Really, folks, how do we have a Dem AG who 1) approves such complete legal nonsense; 2) advances essentially frivolous and disingenuous arguments in an attempt to defend the indefensible; and 3) can’t make the legal system for asylum work in a fair and legal manner at EOIR or DHS?
How immoral and intellectually dishonest are Garland’s arguments. Here’s one of my favorite passages from Judge Tigar’s opinion:
While they wait for an adjudication, applicants for asylum must remain in Mexico, where migrants are generally at heightened risk of violence by both state and non-state actors.
See, e.g., PC 32446–68 (2022 State Department report noting credible reports of gender-based violence against migrants; reports of migrants being tortured by migration authorities; “numerous instances” of armed groups targeting migrants for kidnapping, extortion, and homicide; and that asylum seekers and migrants were vulnerable to forced labor); PC 22839–42 (NGO report documenting violent crimes against 13,480 migrants in Mexico, by both state and non-state actors, between January 2021 and December 2022); PC 76248–87 (table of crimes summarized in preceding report); PC 21752–58 (2022 NGO report discussing gender-based violence in northern Mexico border cities, including against LGBTQI+ and Black migrants); PC 21610–11 (2022 NGO report concerning gender-based violence against Venezuelan women and LGBTIQ+ migrants in southern Mexico).16
16 In addition to these examples, the record is replete with additional documentation of the extraordinary risk of violence many migrants face in Mexico. See, e.g., PC 22129–30 (2023 news report documenting instances of kidnapping of asylum seekers in northern Mexico); PC 23247–50 (2022 news report quoting Chihuahua state police chief stating that “organized criminal gangs are financing their operations through migrant trafficking”); PC 23082 (2023 NGO report discussing treatment of migrants and asylum seekers); PC 20937–43 (2021 NGO report documenting kidnapping and extortion of Venezuelan migrants in Mexico); PC 29740–29744 (2021 NGO report documenting instances of rape, kidnapping, and other violence experienced by migrant women in Mexico); PC 75946–48 (2022 NGO report documenting violence against migrants in Mexico); AR 4881 (2022 NGO report noting that asylum seekers from Central America have been pursued across the border and found in southern Mexico by their persecutors).
Only somebody who avoids the border, has never represented asylum seekers there, and is impervious to facts and reality could make such outlandish arguments in favor of an outrageously deficient and illegal “policy.” Sounds like something out of the “Stephen Miller Playbook!”Why is it coming from a Dem AG?
Injustice Public Realm Dems spend lots of time whining about the destruction of the Federal Judiciary by GOP right-wing extremists. However, after two years in charge, they have done little to bring due process, fundamental fairness, and judicial expertise to America’s worst courts — the Immigration Courts — which they totally control!
Austin Kocher, Ph.D. Research Assistant Professor TRAC-Syracuse PHOTO: Syracuse U.
Two items from Professor Austin Kocher on Substack:
Asylum Seeker Killed in Guatemala after Omaha Immigration Judge Ordered Him Deported
Omaha is now the toughest court in the country for asylum seekers, MPI hosts discussion on immigration courts in crisis, interview with an immigration judge, and more.
Asylum Seeker Killed in Guatemala after Omaha Immigration Judge Ordered Him Deported austinkocher.substack.com • 1 min read
New Research by AILA Reveals Anatomy of an Asylum Case + Online Event
Even the best attorneys require 50-75 hours over several months to complete an asylum case. The Biden admin’s attempts to speed up asylum cases may be ignoring this reality.
…see more
New Research by AILA Reveals Anatomy of an Asylum Case
J.D. Candidate at Georgetown University Law Center
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Through my internship at the Florence Immigrant and Refugee Rights Project, I observed master calendar hearings in the detained docket in the Florence Immigration Court. I was back in Florence, Arizona, because the court itself is located within the barbed wire of the detention center. Observing the Florence Immigration Court emphasized how dehumanizing removal proceedings can be for detained immigrants. Master calendar hearings are often immigrants’ first interaction with the Court. To start, a guard brought a group of men in jumpsuits to the courtroom and lined them up. The judge read them their rights and then called them individually to discuss their case. Twice I witnessed the wrong person being brought into court where they sat through proceedings until the guards realized and switched them out for the correct person.
The vast majority of Respondents in removal proceedings are unrepresented. There is a blatant information imbalance in immigration court when the immigrant is unrepresented. Oftentimes, pro se detained immigrants do not have access to the resources represented or released Respondents have during their proceedings. Respondents may not know their legal options unless organizations like the Florence Project can speak to them before their hearing and provide them with pro se information packets or represent them. During the hearing, the men did not even have a pen and paper to take notes. Meanwhile, the immigration judge and government attorney have access to technology and a wealth of experience to pull from to make legal arguments.
This is just one example of many – my colleagues and I also observed translation issues and pushback against some men who wished to continue fighting their case. Above all, I’ll leave with this very simple observation: the judge and guards called each man up by his court docket number before his name. If we are to support and uphold the dignity of all people, we must do so especially in systems that look to strip it from them. Providing immigrants with access to a lawyer, if they’d like one, can ensure that people have access to information that allows them to make informed decisions about their case. The Florence Project is one of the organizations working tirelessly to expand access to representation throughout Arizona, and I hope to continue this work after graduating from Georgetown University Law Center next year. #EJAFellowUpdate | Equal Justice America
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Congrats to Lauren Iosue, and thanks for becoming a member of the NDPA! 😎 The scary thing: As an L-3, Lauren appears to have more “hands on” Immigration Court experience and a far deeper appreciation of the material, sometimes fatal, flaws in the EOIR system, than Garland and his other “top brass” in the DOJ responsible for operating and overseeing this tragic mess!
Why isn’t “real life” immigration/human rights experience representing individuals in Immigration Court were an absolute requirement for appointment to AG, Deputy AG, Associate AG, Solicitor General, and Assistant AG for Civil (in charge of OIL) in any Dem Administration, at least until such time as the Immigration Courts become an Article I Court removed from the DOJ?
30-years ago, when I was at Jones Day, we were budgeting a minimum of 100 hours of professional time for a pro bono asylum case! That was before the “21st century BIA” added more unnecessary, artificial technicalities to make it more difficult for asylum seekers to win. It’s not “rocket science!” 🚀
Lucy McMillan ESQUIRE Chief Pro Bono Counsel Arnold & Porter Washington, D.C. PHOTO: A&P
All Garland would have to do is reach back into his “big law” days at Arnold & Porter (“A&P”). He should pick up his cell phone and call Lucy McMillan, the award-winning Chief Pro Bono Counsel @ A&P.Ask Lucy what needs to change to get EOIR functioning as a due-process-focused model court system! Better yet, reassign upper “management” at EOIR, and hire Lucy to clean house and restore competence, efficiency, and excellence to his currently disgracefully-dysfunctional “courts!”
As Austin’s posts and the reports he references show, Garland’s indolent, tone-deaf, mal-administration of the Immigration Courts is a national disgrace that undermines democracy and betrays core values of the Democratic Party! How does he get away with it? Thanks to Austin, AILA, Lauren, and others exposing the ongoing “EOIR charade” in a Dem Administration!
As shown by recent “Courtside” postings about the “Tsunami” 🌊 of Article III “rejections” of lousy BIA decisions, throughout America, many, many more asylum cases could be timely granted with a properly well-qualified, expert BIA setting precedents and forcing judges like those in Omaha to properly and generously apply asylum law or find other jobs!Maximum protection, NOT “maximum rejection,” is the proper and achievable (yet unrealized) objective of asylum laws!
Asylum law, according to the Supremes and even the BIA is supposed to be generously and practically applied — so much so that asylum can and ordinarily should be granted even where the chances are “significantly less” than probable. SeeMatter of Mogharrabi, 19 I & N Dec. 439, 446 (BIA 1987).
The problem is that the BIA and EOIR have never effectively implemented and followed the Mogharrabi standard. In recent years, particularly during the Trump debacle, they have moved further than ever away from this proper legal standard while still giving it lip service! Clearly, the IJs in Omaha and other “Asylum Free Zones” are operating outside the realm of asylum law with deadly and destructive consequences. Yet, Garland, a former Federal Judge himself, permits it! Why?
The assumption that most asylum seekers who pass credible fear should ultimately lose on the merits is false and based on intentionally overly restrictive mis-interpretations and mis-applications of asylum law! It’s a particular problem with respect to asylum seekers of color from Latin America and Haiti — a definite racial dimension that DOJ and DHS constantly “sweep under the carpet.” Because of the extraordinarily poor leadership from EOIR, DOJ, and DHS, this “fundamental falsehood of inevitable denial” infects the entire asylum debate and materially influences policies.
A dedicated long-time “hands-on” asylum expert, someone who actually met some of the “Abbott/DeSantis busses,” said that over 70% of those arriving from the border had potentially grantable asylum claims. That’s a far cry from the “nobody from the Southern border will qualify” myth that drives asylum policy by both parties and has even been, rather uncritically, “normalized” by the media.
Fixing EOIR is a prerequisite to an informed discussion of immigration and development of humane, rational, realistic immigration policies. That would be laws and policies based on reality, not myths, distortions, and sometimes downright fabrications.
Competent representation is also an essential part of fixing EOIR. There are ways to achieve it that Garland is ignoring and/or inhibiting. See, e.g., VIISTA Villanova. No excuses!
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