"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.
Migrants arriving at the U.S. border to seek asylum are routinely subjected to tactics that immigration rights advocates say are designed to drive them away in violation of their rights under federal law.
The tactics include forcing them to wait at the border indefinitely or sending them back into Mexico to join a backlogged list maintained by Mexican immigration officials.
The Trump administration says such measures are necessary because it is not equipped to deal with a large increase in the number of asylum seekers, many of them from Central America. Last year, U.S. immigration courts handled 120,000 asylum requests, a fourfold increase since 2013.
But immigrant advocates contend the government is violating the U.S. Immigration and Nationality Act, which says any foreigner who reaches the U.S. has the right to apply for asylum.
U.S. Customs and Border Protection “is violating the law and turning away asylum seekers on Texas bridges,” said Shaw Drake, an El Paso-based attorney with the Texas ACLU’s Border Rights Center.
He said forcing immigrants to join a long waiting list is tantamount to turning them away.
“To turn them away with some amorphous instructions is illegal,” he said.
The issue is likely to come to a head when a caravan of several thousand Central Americans now heading north through Mexico arrives at the U.S. border. Many are expected to claim asylum, which they can do based on fear of persecution due to their race, religion, nationality, social group or political opinion.
Trump, who has vowed to close the border, said in an interview Monday with conservative TV and radio host Laura Ingraham that the U.S. would allow migrants to file asylum claims but that they would be forced to live in “tent cities” while they await court rulings, a process that can take years.
“We’re not going to build structures and spend all of this, you know, hundreds of millions of dollars,” Trump said. “We’re going to have tents. They’re going to be very nice and they’re going to wait and if they don’t get asylum, they get out… They don’t usually get asylum.”
Edgar Hernandez Gonzalez, right, his daughter Sherly and girlfriend Sofia Alvarez Favela wait to request asylum on the Santa Fe International Bridge in Ciudad Juarez. Gonzalez said he and his family were being threatened and were fleeing crime in Juarez. (Genaro Molina / Los Angeles Times)
Last week, after 20 immigrants from Cuba, Honduras, Mexico and Russia arrived at the border bridge in El Paso, U.S. officers stationed in the middle of the bridge — the “limit line” — told them to wait. And so they did, some for days in the cold and rain. Others stayed at a nearby shelter.
“We’ll wait and see, night and day, because I don’t have anywhere to go,” said Alexander Narzilloev, 35, who was with his wife and sons, ages 3 and 6.
Narzilloev ran a construction supply business in Moscow but fled after he was extorted by local mafia and received death threats, including one from a man who called and said he knew where Narzilloev’s son attended kindergarten, he Narzilloev said.
The family had originally gone to the crossing in Calexico, Calif., where officers told them they didn’t have space. After waiting a week and spending what remained of their $8,000 savings on a hotel, Narzilloev and his family caught a bus to Ciudad Juarez, Mexico, in hopes of entering El Paso.
“I heard in the news Trump said close all the borders. Has it happened yet?” he said. “That’s supposed to be for illegals. We are legal.”
Last week, several House Democrats sent a letter to Homeland Security Secretary Kirstjen Nielsen requesting a briefing on why and how asylum seekers were being turned away. Sen. Tom Udall, a New Mexico Democrat, issued a statement calling for “fair and orderly processing of asylum seekers.”
“Any attempts to deny these families and individuals their right to seek asylum are wrong,” he said.
The Trump administration has tried a variety of approaches to deter people from trying to reach the United States — most controversially a “zero tolerance” policy of criminally charging every adult migrant who crosses the border illegally, separating parents from their children.
The policy resulted in 2,654 children being separated and widespread outrage before Trump canceled it in June.
The administration still wants to detain families indefinitely and has been battling immigrant advocates in hopes of overturning a federal judge’s 1997 order that requires children be held for no longer than 20 days. Federal prosecutors have also fought to narrow the definition of political asylum.
But the government has been flummoxed by what Kevin McAleenan, commissioner of Customs and Border Protection, calls the “asylum gap”: the inability to stop people from making false claims for asylum and living legally in the U.S. for years while their cases proceed.
Immigrant advocates say the new tactics at the border are aimed at discouraging asylum claims. The ACLU of Texas noted Tuesday that Customs and Border Protection, the largest federal law enforcement agency, with a staff and budget doubled in the last 20 years, processed 1.1 million fewer people at the southern border last year than it did in 2000.
Instead of expanding capacity to process asylum seekers at border crossings, officials have forced them to wait. The method varies from crossing to crossing.
Cuban migrant Yunier Reyes, 35, waits with other migrants from Honduras and Mexico. (Genaro Molina / Los Angeles Times)
In El Paso, customs officers have told immigrants to return in a few hours, or simply “later.” The San Ysidro crossing in San Diego has been using a process called “metering,” in which asylum seekers have had to make appointments through Mexican immigration officials.
In a federal class-action lawsuit filed last year that’s still pending, Los Angeles- and Tijuana-based Al Otro Lado and other advocacy groups argued on behalf of more than a dozen immigrants that the policy violates international law and the right to due process.
During a visit to San Ysidro last week, McAleenan praised metering and said it’s likely to expand to other crossings if there’s a “significant increase in arrivals” in coming weeks.
He said the process didn’t amount to turning away immigrants because “they can stay in line if they want.”
“If somebody arrives and they have a claim, we are providing access,” he said, adding that some officers have been investigated, disciplined and retrained after turning away asylum seekers.
Other allegations were unsubstantiated, he said.
Edith Tapia, a policy research analyst with the Hope Border Institute, center, talks with a Mexican couple and their children who hope to request asylum in the U.S. at the foot of an international Bridge in Ciudad Juarez, Mexico. (Genaro Molina / Los Angeles Times)
Workers from the nonprofit Hope Border Institute visit El Paso bridges to document cases of asylum seekers being turned away. On Oct. 24, they found Pedro Morales, 21, and girlfriend Janet Macola, 19.
The two said they fled Cuba after authorities halted their attempt to open a beauty salon and threatened to throw Morales in jail. Now they were seeking asylum.
So was a family of four from the southern Mexican state of Guerrero. They said that their area had become a ghost town, controlled by a mayor in league with organized crime, and that they were too scared to be quoted by name.
The Cuban couple and the Mexican family approached U.S. officers at the center of the bridge and were told the same thing: “It’s full right now.”
It’s all a ridiculous political stunt that Secretary Mattis has shamefully gone along with. Talk about someone forgetting his oath — allowing the US Military to be used as a “political prop” for “White Nationalist Nation.” Presumably historians and biographers will remember “Mad Dog’s” dereliction of duty at a critical point in our country’s existence.
The real point is that for much less money than Trump is wasting on his “military stunt” he could place enough USCIS Asylum Officers at or near ports of entry on the Mexican border to promptly, professionally, and humanely process applicants in accordance with our laws. That would also encourage and reward individuals for appearing for orderly processing and security screening at the proper places, rather than entering the country surreptitiously. It would also reduce the strain on the Border Patrol by reducing incentives for illegal crossings of asylum seekers between ports of entry.
But, this isn’t about sensible or lawful border and asylum policy. It’s about a White Nationalist demagogue putting on a “show” for his “base.”
Mexico already is encouraging the migrants in the caravan to apply for asylum in Mexico instead of in the United States. It has offered them temporary identification papers and jobs if they register for asylum in Mexico.
If Trump establishes third country agreements with a substantial number of countries, it could greatly reduce the number of asylum applications the United States has to consider.
Trump also is considering an executive order to keep asylum seekers from Central America out of the United States. Presumably, it would be based on section 212(f) of the INA, which reads as follows:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation … suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants.
The Supreme Court upheld Trump’s travel ban order on the basis of this provision, but an order suspending the entry of asylum seekers from Central America would be challenged in the same lower courts that flouted precedent to reject his travel ban.
According to Eric Posner, a professor at the University of Chicago Law School, the courts created a “Trump exception” to settled law on presidential powers by ignoring the Supreme Court’s admonition that courts may not “look behind” a “facially legitimate” reason for an executive order.
And this time, the courts would have an objective basis available to them.
The United States is a signatory to the UN’s Convention and Protocol Relating to the Status of Refugees. This means that it cannot return or expel “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
Trump also can arrange for persecution claims to be screened outside of the United States.
Moreover, the United Nations Refugee Agency, UNHCR, might be willing to process some of the Central American asylum seekers outside of the United States.
The only certainty is that Trump is preparing to take drastic action.
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Read Nolan’s complete article over at The Hill at the above link.
It‘s debatable whether Mexico qualifies as a “safe third country” for asylum purposes. Most notably , the Mexican Government has not entered into a qualifying agreement with the US, and currently shows little inclination to do so.
However, Nolan directs our attention to a very significant point. While Mexico might not be a “safe third country,” it probably is a “safer third country” than any of those in the Northern Triangle. Nolan correctly notes that some migrants already are choosing to apply for asylum in Mexico rather than continuing the hazardous and uncertain journey to the US border.
Given the clearly xenophobic, anti-asylum attitudes of the Trump Administration, the uncertainties of the current US process, the lengthy waiting times, and that only about one in three applicants who reach a final merits hearing in Immigration Court get asylum (and that rate will probably be lower for Northern Triangle applicants under the Sessions regime), more refugees from the Northern Triangle might want to seriously consider applying in Mexico instead.
Rather than making threats and wasting taxpayer money on ridiculous and unnecessary militarization of our border, the Trump Administration would be wiser to provide financial and professional support to Mexico in establishing a fairer, more professional, and more legitimate asylum adjudication system in Mexico.
As the TPS programs and NACARA have shown, refugees and other forced migrants from the Northern Triangle are generally law abiding, hard working, talented folks who could help Mexico both stabilize its society and further bolster its economy. With the Trump Administration’s disdain for internationalism and trade, there will be room for countries like China, Mexico, and India to advance their positions. Forced migrants from the Northern Triangle could help Mexico advance. And, in the long more economic equality between the US and Mexico could prove to be in everyone’s best interest.
The hysteria over the caravan of Central American asylum-seekers traveling north towards the United States is spiraling out of proportion. A calm review of the facts and the historical context of migration from this hemisphere make clear that the United States has the laws and policies in place to respond humanely — in keeping with our values and our laws.
There are varied estimates of the number of people in the caravan, ranging from the Mexican government’s estimate of 3,630 migrants to the United Nations spokesperson’s estimate of 7,000 migrants. According to the Washington Post, Mexican officials report that they have processed 1,700 asylum cases. Whether the caravan will grow in numbers or dissipate remains to be seen.
What we do know is that the United States has handled much larger influxes of asylum-seekers. And we did so without sacrificing our laws and our values.
Cuba long has been a source of asylum-seekers, as Haiti has been. In 1980, for example, a mass migration of asylum-seekers, known as the Mariel boatlift, brought approximately 125,000 Cubans and 25,000 Haitians to South Florida over a six-month period. In 1992, the U.S. Coast Guard interdicted 37,618 Haitians who had set sail to the United States and took many of them to Guantanamo Bay Naval Base. While the treatment of the Haitians was not our finest hour as a nation, we did pre-screen those at Guantanamo for credible fear and return others to Haiti with the option of in-country refugee processing. The estimates of migrants in the caravan are comparable to the number of Cubans (7,163) the U.S. Coast Guard and Border Patrol picked up in fiscal year 1997.
The civil wars in Central America during the 1980s prompted asylum-seekers that numbered in the hundreds of thousands. Data on asylum cases filed with the then-Immigration and Naturalization Service (INS) show that about 126,000 Nicaraguans, 126,300 Salvadorans and 41,942 Guatemalans applied for asylum in the United States from fiscal year 1981 through 1990.
In the aftermath of Hurricane Mitch in November 1998, then-Attorney General Janet Reno designated temporary protected status (TPS) for unauthorized Hondurans and Nicaraguans in the United States. In 2001, the George W. Bush administration decided to grant TPS to Salvadorans following two earthquakes that rocked El Salvador. The number of Central Americans who received these various temporary protections approached 270,000.
For those who are fearful that bad actors are hiding amid the asylum-seekers in the caravan, rest assured that U.S. Customs and Border Protection (CBP) puts all such migrants through rigorous border security screening systems. CBP collects biometric data, performs background checks, and runs them through a host of criminal and national security databases.
Lest we forget, border apprehensions of all irregular migrants (including asylum-seekers) are now at historic lows. From a peak of 1.6 million in fiscal year 2000, the U.S. Border Patrol apprehended just under 304,000 last fiscal year. Research conducted by Stephanie Leutert at the University of Texas found that in fiscal year 2017 less than 0.1 percent of those apprehended — 228 migrants — were members of the MS-13 gang.
We do not need to send military troops to the border; rather, we need to adequately staff the asylum offices and immigration courts at the border. Funding for asylum officers and immigration judges has not been commensurate with the substantial increases in border security funding, despite the obvious interconnections among these functions. We also need to reinstitute in-country refugee processing in El Salvador, Guatemala and Honduras, and extend it to include adults as well as minors. Cutting assistance to Mexico and Central America — which President Trump suggests would punish the source countries into stopping the migration — most likely would exacerbate the underlying problems and increase the number of people fleeing north.
It’s time to calm down and remember that we are a nation of laws and a people of values. We can handle this.
Ruth Ellen Wasem is a clinical professor of policy at the Lyndon B. Johnson School of Public Affairs, the University of Texas in Austin. For more than 25 years, she was a domestic policy specialist at the U.S. Library of Congress’ Congressional Research Service. She has testified before Congress about asylum policy, legal immigration trends, human rights and the push-pull forces on unauthorized migration.
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Right on, Ruth! Couldn’t agree with you more. But, sadly, I doubt that anyone in this Administration is paying attention. They aren’t trying to solve the problem. Rather they see the humanitarian plight and misfortune of others as an “opportunity” to promote and advance their White Nationalist agenda of lies, racism, and fear mongering to “energize their base” in advance of the midterms (and also to divert attention from Trump’s failure to deliver on his promise to build that wall).
But, setting the record straight is always a good idea even when it falls on deaf ears. Someday, we will have wiser leaders who will be generally interested in understanding the past and using its lessons to build a better future for everyone!
The only solution is to find a way to process their asylum applications outside of the United States.
In July 2014, I suggested a way to do this to deter unaccompanied alien children from making the perilous journey from Central America to seek asylum in the United States. I proposed working with United Nations High Commissioner for Refugees (UNHCR) to set up refugee centers in Central America for children to make it unnecessary for them to travel to the United States.
A few months later, President Barack Obama announced the establishment of a Central American Minors (CAM) refugee program to provide in-country refugee processing by U.S. Citizenship and Immigration Services (USCIS) for qualified children in El Salvador, Guatemala, and Honduras.
Trump could establish such a program that would be open to adults too.
He also should be able to persuade UNHCR to process asylum seekers who come to the United States at a location outside of the United States if processing is limited to aliens who enter without inspection.
Notwithstanding claims to the contrary, undocumented aliens do not have a right to apply for asylum in the United States. Asylum is a discretionary form of relief. The asylum provision in the Immigration and Nationality Act just states that eligible aliens “may” be granted asylum.
The United States, however, is a signatory to the UN’s Convention and Protocol Relating to the Status of Refugees. This means that it cannot return or expel “a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”
This obligation could be met by arranging for UNHCR to process their persecution claims in some other country with the understanding that an agreed upon number of them would be accepted by the United States as refugees.
It would have to be a very large number to make the program politically feasible.
Aliens who enter without inspection would be placed in expedited removal proceedings. The ones who fear persecution would be transferred to UNHCR. Asylum seekers also could go directly to the processing centers without having to make the journey to the United States.
The alternative is to accept the fact the that our 2,000-mile border is open to anyone who is willing to cross it illegally and ask for asylum.
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Go on over to The Hill at the above link to read Nolan’s complete article.
I disagree with Nolan’s statement that because asylum is, in the end, discretionary, there is no right to apply for asylum at the border or in the United States. The statute, 8 USC 1158(a)(1), specifically states that: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) irrespective of status, may apply for asylum in accordance with this section or . . . .”
It couldn’t be clearer that ANY MIGRANT, whether documented or not and whether applying at a port of entry or not, who reaches the U.S., including the border, is legally entitled to apply for asylum. While the ultimate granting of the application might be discretionary (I note, however, that current Article III Court decisions restrict the grounds for discretionary denial), the right to apply is clear. Moreover, in light of the obvious care and comprehensiveness that Congress used in insuring that EVERYONE at the border or in the U.S. could at least apply for asylum, I doubt that “blanket denials,” based solely on nationality and/or method of arrival would be proper exercises of discretion.
However, Nolan is correct in that the Supreme Court has held that the INA.s right to apply for asylum does not apply extraterritorially to individuals stopped before they can reach U.S. territory (such as interdiction).
Nolan and I agree on a major point: The Trump Administration should be using the overseas refugee processing provisions of the Refugee Act, the auspices of the UNHCR, and cooperation with other countries who have signed the UN Convention & Protocol to address forced migration issues abroad, closer to the sending country, wherever possible.
However, this Administration has shown little interest in doing that. Threats of sanctions, welshing on our own obligations to take overseas refugees under the Act, false characterizations of the refugees as “criminals and terrorists,” and threats to reduce or eliminate foreign aid aimed at solving the very infrastructure and societal problems that produce refugee flows are certainly not ways to show leadership and to inspire international cooperation in solving refugee problems.
Finally, for “Nolan’s Fan Club,” here’s a link to all 162 of his published articles:
Attorney General Jeff Sessions appears to be exploring a rule that would expand his judicial power, and that some say would allow him to drastically reshape federal immigration policy.
In a notice posted this fall, the Department of Justice (DOJ) announced it is planning to propose a change to the circumstances in which the attorney general can take and rule on immigration cases.
Under past practice, immigration experts say attorneys general have only stepped in to affirm or overturn cases once the Board of Immigration Appeals (BIA) has given a ruling. Such interventions by attorneys general have also been rare.
Under the new proposal, the attorney general could make rulings on immigration cases before they get to the BIA.
“It’s very disturbing,” said Thomas Saenz, president and general counsel at MALDEF, the Mexican American Legal Defense and Educational Fund.
He argued the proposed change, which was included in the fall semiannual regulatory agenda released by the White House, would give the attorney general too much power.
“This is an attorney general that has already demonstrated when he has done this under existing rules that he is biased, inhumane and, frankly, probably influenced by some racist views,” Saenz said.
DOJ spokeswoman Sarah Sutton called Saenz’s characterization “absurd and woefully ignorant.”
“It is widely acknowledged that our immigration system is broken and the attorney general has been steadfast in his pursuit of a lawful and functional immigration system where all Americans can thrive,” she said.
“The Department of Justice’s record demonstrates a commitment to the safety and security of all Americans while treating all persons with fairness and dignity. To suggest otherwise is to ignore facts.”
The notice in the regulatory agenda, which maps out agency actions for the coming year, said the cases where the attorney general could intervene would include “those pending before the Board of Immigration Appeals but not yet decided and certain immigration judge decisions regardless of whether those decisions have been appealed to the BIA.”
Plans for the proposed rule were first listed on the spring regulatory agenda released in May. At that time, the expected release date was September 2018. The action has now been delayed until March.
Sessions has already been aggressive in getting involved with BIA cases even without the proposed rule change.
Since taking office in February 2017, Sessions has stepped in seven times after the BIA has made a decision, and offered five rulings — each adverse to the immigrant.
By comparison, the two attorneys general who served during former President Obama’s eight years in office took over just four cases, said Katrina Eiland, a staff attorney with the American Civil Liberties Union’s Immigrants’ Rights Project.
Rulings from the attorney general are enormously consequential because they set precedent for immigration judges to follow.
In June, Sessions essentially made it impossible for victims of domestic or gang violence to qualify for asylum by overturning a BIA decision to grant asylum to a Salvadoran woman who said she was a victim of domestic abuse.
“The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim,” he wrote in his opinion.
Some have argued this authority to adjudicate immigration cases is a way for attorneys general to advance immigration policy.
Alberto Gonzales, who served as attorney general under former President George W. Bush, suggested in a 2016 Iowa Law Review article he co-wrote that it could have been a less controversial way for Obama to roll out his Deferred Action for Childhood Arrivals program.
“This authority, which gives the Attorney General the ability ‘to assert control over the BIA and effect profound changes in legal doctrine,’ while providing ‘the Department of Justice final say in adjudicated matters of immigration policy,’ represents an additional avenue for the advancement of executive branch immigration policy that is already firmly embodied in practice and regulations,” the article said, quoting a Fordham Law Review article written by Joseph Landau.
Jeffrey Chase, who served as an immigration judge and a senior legal immigration adviser at the BIA under former President Clinton, said the DOJ’s rule would give Sessions free range to change the law in whatever way he feels, whenever he wants.
He said it would bring the system into an era of uncertainty over what is settled law.
Unlike federal district and circuit courts that are part of the federal judiciary branch, immigration courts fall under DOJ control. Immigration judges are DOJ employees and do not serve lifetime appointments like federal district and circuit court judges.
Immigration advocates say Sessions has already taken steps to cut away at their judicial independence.
DOJ announced in an April memo obtained by The Wall Street Journal that it was setting quotas to expedite immigration cases and NPR Newsreported in May that Sessions had ordered judges to stop putting deportations on hold by closing out cases while immigrants apply for visas and green cards.
Immigration advocates say the plan in the regulatory agenda appears to be another step to further cut back their power.
“It appears to be another move to further control the immigration courts and that’s problematic for due process and fairness in giving immigrants a fair shake in their immigration proceedings,” Eiland said.
Chase said the good news, from his perspective, is the policies set through rulings from the attorney general can be easily undone by a new administration.
Still, experts are alarmed by what they see as a broader effort by Sessions to rewrite immigration law.
“It seems transparent the intent to allow the attorney general to manipulate and distort the process by short-circuiting the normal procedures in order to impose the outcome he seeks,” said Lucas Guttentag, who served as senior counsel to Secretary of Homeland Security under the Obama administration.
But there is a question as to whether DOJ can legally do what it’s planning.
“I don’t know if they’ll get away with it,” Saenz said. “I think there are limits to his discretion and this would probably be very troubling to a court because it circumvents the due process provided in the immigration system.”
Decisions from the BIA and final rulings from the attorney general can be appealed to a federal circuit court, but Chase said Sessions’s rulings have not been final. He has instead sent cases back to immigration judges for further action, which delays the opportunity to appeal.
“He’s been very clever about not leaving any case in a position where it could be [directly] appealed,” Chase said.
So, Sessions proposes to essentially strip the BIA of its authority to render major legal precedents. Their primary role would become insuring that U.S. Immigration Judges “toe the White Nationalist lines” laid down by Sessions or his successors. So much for the “expertise” of the BIA or the importance of developing policies through case-by-case litigation. I guess Sessions’s “precedents” have all been “cooked” in advance by restrictionist groups. No need to pay attention to facts or legal arguments that conflict with Sessions’s long-held racist-restrictionist views on immigration.
Session’s proposed “takeover” of the BIA’s appellate functions also raises some interesting issues:
In view of his political statements, can he function as an independent quasi-judicial adjudicator in individual cases? Article IIIs have applied judicial rules of conflict and disqualification to individual IJs and BIA Members. (Indeed, I seem to remember a case in which an Article III got upset because then-Chair Dave Milhollan unwittingly voted in a case that had passed through Appellate.Counsel while he was at INS.) If IJs or BIA Members made political statements and prejudgements of pending issues they would be disqualified from individual cases. Why not Sessions? Judges are not supposed to have prosecutorial roles. But Sessions clearly fancies himself the “chief prosecutor!”
Since he isn’t a true “independent quasi-judicial adjudicator,” and has no particular expertise in immigration adjudication, why should Sessions get Chevron deference?
He’ll probably be gone soon. But, that doesn’t mean his successor will abandon the restrictionist immigration agenda. Indeed, it is almost inconceivable that Trump would nominate anyone who is not a committed White Nationalist restrictionist as a replacement.
Meanwhile, what’s the purpose of an appellate board whose primary function appears to be rubber stamping one-sided political decisions?
A federal district court judge has ruled Attorney General Jeff Sessions’ conditions on grant funding to force so-called sanctuary cities to cooperate with immigration enforcement efforts as unconstitutional
Judge William Orrick, of the U.S. District Court for the Northern District of California, sided with the state of California and city of San Francisco in their lawsuit challenging the requirements in granting their request for summary judgment Friday.
The conditions Sessions set in 2017 require sanctuary cities to give immigration officials access to their jails, notify U.S. Immigration and Customs Enforcement (ICE) officials of the planned release of a detainee, and follow a law that prohibits state and local governments from restricting how much information is shared with the Department of Homeland Security.
Orrick’s decision was in agreement with every court that has looked at these issues.
The judge said that the challenged conditions violate the separation of power and that the information-sharing law is unconstitutional.
Orrick said he is following the lead of the district court in a similar challenge brought by the city of Chicago and is issuing a nationwide injunction to block the Justice Department from enforcing its requirement and the law. But he said he is putting that stay on hold until the Ninth Circuit addresses the issue on appeal.
“Today’s ruling is a victory in our fight to protect the people of California,” California Attorney General Xavier Becerra said in a statement Friday afternoon.
“We will continue to stand up to the Trump administration’s attempts to force our law enforcement into changing its policies and practices in ways that that would make us less safe.”
Becerra’s office noted that the ruling marks the attorney general’s twenty-second legal victory against the Trump administration.
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When will he ever learn, when will he ever learn? And, how much of our tax money and Federal Court time will he waste with this counterproductive, semi-frivolous, and vindictive litigation.
Given Gonzo’s record of disregarding the law and mocking common sense, California might “top the century mark” in legal wins before the end of this Administration!
A federal judge’s ruling blocking a Trump administration order to end immigration benefits for nearly 300,000 foreign nationals is the latest in a series of judicial setbacks for the Trump administration’s immigration policies.
Federal District Judge Edward Chen late Wednesday blocked the Department of Homeland Security’s (DHS) order to end Temporary Protected Status (TPS) that allows citizens of Sudan, El Salvador, Haiti and Nicaragua to live and work in the United States, raising hopes for activists who have fought to make the program permanent.
The preliminary injunction granted by Chen, an appointee of President Obama, follows a trend of court reversals that have slowed the administration’s proposed overhaul of American immigration laws.
The administration’s first judicial setbacks on immigration came weeks into Trump’s presidency, as a New York court stopped in January of 2017 the application of the first version of a travel ban that blocked immigrants and visitors from seven majority-Muslim countries.
After a series of court battles, a third version of the travel ban — which includes non-Muslim countries North Korea and Venezuela — was eventually upheld by the Supreme Court in June of this year.
Trump’s termination of the Deferred Action for Childhood Arrival (DACA) program is still up in the air.
Because of court action, DHS is still receiving DACA renewal applications, which under Trump’s original order should have ended in October of 2017.
Both the travel ban and termination of DACA tied into Trump’s campaign promises on immigration, but TPS is a relatively obscure program that had been more or less summarily renewed by both Republican and Democratic administrations.
Under TPS, nationals of countries that undergo natural or man-made disasters are allowed to live and work in the United States until their home countries recover.
Chen’s decision only blocks the DHS orders while the lawsuit is in place, but he hinted in his decision that he’s unlikely to change his mind in the final ruling.
The decision came as a surprise, as TPS statute gives a wide berth to the secretary of Homeland Security to determine who receives its benefits.
DHS declined to comment on the case, but Department of Justice spokesman Devin O’Malley panned Chan’s decision, saying it “usurps the role of the executive branch in our constitutional order.”
Emi Maclean, an attorney with the National Day Laborer Organizing Network (NDLON), called it “an extraordinary decision.”
“This is the first time in the history of the TPS statute, a statute from 1990, that there has been a court order halt for any TPS determination,” said Maclean.
“It’s hugely important in what it says about the Trump administration making policies in the arena of immigration, and it’s obviously important for hundreds of thousands of people and their families and communities,” she added.
In his decision, Chen referred to the “animus” behind the administration’s TPS strategy, echoing district and appeals courts decisions on the travel ban, which used Trump’s campaign rhetoric as evidence of discriminatory intent.
Chan said he found “evidence that this may have been done in order to implement and justify a pre-ordained result desired by the White House.”
“Plaintiffs have also raised serious questions whether the actions taken by the Acting Secretary or Secretary was influenced by the White House and based on animus against non-white, non-European immigrants in violation of Equal Protection guaranteed by the Constitution,” he added.
Justice took a different view.
“The Justice Department completely rejects the notion that the White House or the Department of Homeland Security did anything improper. We will continue to fight for the integrity of our immigration laws and our national security,” said O’Malley.
Although the decision is only a temporary setback for the administration, TPS activists — who want to turn their TPS benefits into permanent residency permits — say they’re encouraged to raise the political profile of the program and its beneficiaries.
“While this decision helps us to at least breathe and be comfortable that our friends with TPS are not going to lose immigration status, it also motivates us to continue organizing and hoping that Congress will understand the importance of this,” Jose Palma, the Massachusetts coordinator for the National TPS Alliance, said in a call with reporters.
Immigration causes have been front and center in U.S. politics during the Trump administration.
But TPS has received relatively little attention.
“We were doing some lobbying and some Congresspeople didn’t know what TPS was,” said Palma. “We were asking for support for TPS and they were asking, ‘What is TPS? We don’t know,’”
And while TPS recipients had been included in previous attempts at comprehensive immigration reform, most bills that got traction in 2018 focused solely on Dreamers.
The exception was a bipartisan bill proposed by Sens. Lindsey Graham (R-S.C.) and Dick Durbin (D-Ill.), which would have pulled immigrant visas from the diversity visa program to grant permanent residency to certain TPS holders, including some from Haiti.
That bill was shot down in January by Trump at a White House meeting with Graham and Durbin, where he allegedly called Haiti and some African countries “shithole countries.”
Still, TPS advocates say they’ve been able to raise awareness for the program since Haiti’s designation was terminated in November.
Palma pointed to seven legislative proposals in the current Congress that would either extend TPS benefits or give current beneficiaries permanent residency.
Another proposal from Rep. Mo Brooks (R-Ala.) would transfer the responsibility of designation from DHS to Congress and restrict access of undocumented immigrants to TPS.
Palma added that the ultimate goal of many TPS recipients, particularly those who have been in the United States for long periods of time, is to achieve permanent residency.
“If we’re going to take the future of this campaign based on what we have achieved from there to now, I feel confident that it’s not going to be easy but it’s something we can definitely achieve,” he said.
Chen’s order covers only El Salvador, Haiti, Nicaragua and Sudan, which account for a majority of TPS holders.
The most numerically significant TPS countries not included in the lawsuit are Honduras, which has about 57,000 citizens in the program, and Nepal, which has about 9,000. They are not included because their terminations had not been announced at the time the lawsuit was filed.
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What is missing here is decisive, bipartisan Congressional action to resolve some of these issues in a way that the Trump White Nationalists can’t easily undo. Barring that, various aspects of the White Nationalist anti-immigrant agenda will continue to “bop along” through the lower Federal Courts: sometimes winning, but often losing.
While the GOP right is obviously feeling a sense of invincibility with the likely advent of Justice Kavanaugh, Trump can’t necessarily count on the Supremes to bail him out by intervening in controversial immigration cases. It would be better for the Court, and particularly for Chief Justice Roberts, presumptive Justice Kavanaugh, and the other “GOP Justices” to take on some less controversial issues — ones where they might actually achieve unanimity or near-unanimity first, and save the inevitable, partisan “5-4s” for a later date. That might mean that he fate of many of Trump’s most controversial immigration schemes could remain in the hands of the lower Federal Courts until sometime after October 2019.
Of course, that isn’t necessarily good news for those opposing the Trump agenda: Trump is quickly turning the lower Federal Courts into bastions of right-wing doctrinaire jurisprudence, just as the Heritage Foundation, the Federalist Society, and other right-leaning legal groups have mapped it out.
Bucking history: Trump’s asylum policy does not represent America
BY BRUCE A. BEARDSLEY, OPINION CONTRIBUTOR — 09/30/18 04:00 PM EDT 199
THE VIEWS EXPRESSED BY CONTRIBUTORS ARE THEIR OWN AND NOT THE VIEW OF THE HILL
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Do we know who we are as a nation?
Nursing infants separated from their mothers. Children warehoused in cages, then moved to tent cities without parents. Thousands of youngsters unaccounted for after separation at the border. Officials fumble and point fingers trying to lay the blame elsewhere. America’s human and humane dimensions seem lost. Is this who we are as a nation?
Even before American independence, settlers in the New World frequently saw themselves as morally superior: residents of the “city on the hill” serving as a beacon to others. While this beacon sometimes dimmed, we usually regained our moral compass with the passage of time — and a period of historical reflection.
Refugees and asylum seekers proliferate in the world as we close our doors to them. What has been our historical record?
The persecution of Jews in Germany was well known before Europe exploded in war in 1939, even though the death camps had not been established. Just before combat began, thousands of Jewish parents were able to send their children to safety in Great Britain and Canada. The Czech Kindertransport alone saved 669 children. These acts of hospitality by other countries are now almost universally praised — in contrast to the nearly insurmountable barriers erected then by the U.S.
After World War II, America did resettle some hundreds of thousands of refugees collected in Europe’s Displaced Persons camps. We did so while trying to avert our eyes from refugee surges in Asia. After the 1956 Hungarian Uprising and the 1968 Czech revolt, we helped resettle many of those who fled their native land via West Germany.
Closer to home, as Castro’s grip on Cuba tightened, thousands of Cuban youngsters came to the U.S on the “Peter Pan” flights (1960–1962). They came without their parents, and with no assurance of being reunited with them. Our country was (and remains today) at odds with Cuba politically, yet we welcomed these children and integrated them into our society.
In the two decades following the Vietnam War we resettled over a million refugees from Vietnam, Laos and Cambodia. I know because I was in charge of elements of those programs, intermittently from 1975 to 1989.
The Vietnam programs had a separate category for unaccompanied minors. We worked closely with refugee camp administrators in countries of first asylum to afford these vulnerable children special protection in the refugee camps, and the potential for rapid resettlement in the U.S. and elsewhere. Yes, we were aware of, and dealt with, attempts at misrepresentation. And yes, we suspected that some refugee parents may have callously risked a child’s life to provide an “anchor” for the parent’s future migration. But the child was there.
When I was with the refugee programs in Malaysia and Thailand, my duties included urging the host countries to treat all asylum seekers humanely. In that we proudly led by example. U.S. policy then was dictated by the greater good of protecting minors who were at risk through no fault of their own. Now, decades later, many of those refugees who entered our country in poverty have become personally successful, greatly contributing to our country. They include doctors, teachers, senior military officers, scholars and job-creating entrepreneurs.
Today, on our southwest border, we are confronted by a similar challenge. Today our response is much different, and contrary to our basic values. Rather than offering asylum seekers a cloak of protection, our government seems to purposely make their lives as harsh as possible (and at great expense). Is separating families, caging children, and pressuring people to request removal who we are? Now the pretext of investigating the suitability of placing a minor in a relative’s home in the U.S. has become a vehicle for finding more deportees!
This is, alas, done to the cheers of a minority of people in America. Does it make our nation “great”?
Who are we as a nation anyway? Do we know?
Bruce A. Beardsley is a retired U.S. diplomat. During his 31 years in the Foreign Service, he oversaw what were then the U.S.’s largest refugee (in Thailand) and visa (in Mexico and the Philippines) operations.
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Do you want to leave an inspirational legacy to future generations of Americans? Then, rise up and vote the Kakistocracy, put in place by a minority of voters, out of office!
Sherrilyn Ifill, 54, is a lawyer living in Maryland and New York. She became the president of the NAACP Legal Defense Fund just after President Obama was sworn in for his second term. Below, she discusses our current political situation, what gives her hope and more.
On the Justice Department under the Trump administration: “During the Obama administration I was trying to push [Obama] further than whatever the administration was already doing in the civil rights space, because that’s kind of my job. But there’s no question that the Obama administration really worked in many instances as a partner. That is not the case now. Attorney General [Jeff] Sessions has made clear that he has no intention of investigating police departments for patterns and practices of discrimination. The Justice Department has essentially all but abandoned civil rights as a priority, and so they are no longer working as a partner with us.
That means that our work has increased. We have had to function as a kind of private DOJ, trying to take up the slack. The DOJ and the attorney general should be the chief enforcer of the nation’s civil rights law. But what we see with Attorney General Sessions is no attempt to prioritize civil rights. In fact, to the contrary, working against us, working against civil rights implementation, working against the progress of civil rights that we’ve achieved.”
On what she would say to President Trump if he invited her to the White House: “I cannot imagine what the circumstance of that invitation would be, so it’s an impossible question to answer. I don’t do ceremonial visits. I’m interested in substance. So there would be a lot I would have to know in advance about what was going to happen. The president has been so explicitly hostile to civil rights and racial justice that I would have to have a very clear understanding of what reversals he was prepared to make to his policies. And in the absence of those, I can’t imagine a circumstance in which I would attend such a meeting.”
On Trump’s comments that black Americans are doing better economically than ever before: ”He does state that, and I think the figures that he uses are convenient in terms of job numbers. But look more closely at wage stagnation and, in fact, wage decreases. Look at the ways in which the failure to invest in infrastructure has left African American communities stranded in terms of transportation. Look at the voter suppression that disempowers African Americans from being able to even control their own destiny in the places where they live. Look at the assault on education and the ways in which the Department of Education is prepared to leave students who are victims of for-profit colleges stranded. Look at the ways which they are seeking to fight and undercut affirmative action. All of these are also part of economic opportunity. And the president conveniently leaves that out of the narrative. Those are things that are necessary to give African Americans a chance.”
On her book about the legacy of lynchings in America, and what the country needs to heal: “What America does not need, in my view, is one national conversation. The book really makes the case for the importance of local communities engaging in truth and reconciliatory processes. The recognition that racial discrimination, and particularly acts of racial pogroms, which essentially is what happened in the period in which lynching was so prevalent in this country, that those local communities need to deal with that, grapple themselves with that history and themselves take on the responsibility for how you stitch back together a community that has been broken for decades, how you confront a painful truth.”
On what gives her hope: “I’m excited to see the continuous mass mobilization that people have engaged in, beginning with the Women’s March and continuing since then, in which people understand the need to come out of their homes to see one another and to say what they believe in. I’ve also really been encouraged by the ways in which the rule of law, for the most part, has held despite President Trump’s excesses. The crisis of this administration’s governance has compelled people to reimagine what it means to be a real citizen in this country. And that gives me optimism, because I think the other way was not sustainable. The benign citizenship performance that most Americans were engaged in was simply not sustainable. Now people understand that they are needed. Their voice is needed, every vote is needed, their engagement is needed.”
Undoubtedly, our Civil Rights Laws were passed to protect African-Americans and similarly situated individuals so that they could enjoy the same advantages and benefits once accorded only to Whites. But, Jeff Sessions believes that civil rights are just about protecting White Power & Privilege against African-Americans, Hispanics, immigrants, LGBTQ individuals and other “uppity” minorities.
Similarly, the Bill of Rights was adopted to protect individual rights against Government overreach. But, Jeff Sessions believes that the right of police to enforce the law using brutality and unnecessary and indiscriminate force is superior to the individual Constitutional rights of people of color.
The solution to restoring reason and the true rule of law (not the perverted “rule of Sessions”): regime change!
The Trump administration has systematically dismantled the right to seek asylum and turned the process at our southern border into a dystopian gauntlet that few can survive.
This became crystal-clear on Monday when Attorney General Jeff Sessions addressed a new class of 44 immigration judges. He stated that their job was to “keep our federal laws functioning effectively, fairly and efficiently” and that they were critical to the Department of Justice “carr[ying] out its responsibilities under the INA.” Sessions described the actions of immigration lawyers as “water seeping through an earthen dam to get around the plain words of the INA.”
I have witnessed personally this administration’s disregard for the rights and human dignity of asylum seekers. Earlier this summer, I took a team of law students and trauma specialists to the Karnes family detention center in Texas, where we worked alongside RAICES, the immigration nonprofit on the front lines in representing asylum seekers in family detention. We arrived on July 28, two days after the court deadline for reunification of separated families, and got a call from RAICES stating that they urgently needed us the next day to meet with dozens of fathers and sons who had just been reunited. Just before we arrived, the women and children previously detained at Karnes were bussed to the Dilley Detention Center in Texas to make room for fathers and sons.
ICE planned to “comply” with the court order, reunify families, and then swiftly deport them. The judge had issued a stay of removal, but RAICES feared that he was about to lift it. So we spent that first Sunday meeting with over 200 fathers and sons, ages 5-17, to sort out where they were in the process and to advise them of their rights.
Over the next days, we took their statements, and a picture of what they had suffered emerged. Many described their separation — usually within hours, often without a chance to say goodbye. Parents who had crossed without authorization were prosecuted for illegal entry. Most pled guilty on advice of their public defenders. After completing brief sentences, parents were transferred to detention centers where ICE gave them a “choice”: accept deportation and we’ll let you see your kid, or fight your case and you will remain separated.
Many of the fathers we saw had agreed to deportation. Others asked for asylum and had credible fear interviews. Parents described, in heart-wrenching detail, these interviews, many by phone without either asylum officer or interpreter physically present. They spoke of being unable to think straight, not understanding the officer’s questions, their hearts and heads pounding, losing their train of thought when the interpreter interrupted to make them slow down, not being able to tell their stories because their hearts were breaking. Under such circumstances, most were denied.
Jeff Sessions has moved quickly to impose his anti-immigrant agenda, well-aware that his time may be limited. The INA grants the attorney general broad powers. Although used sparingly in the past, regulations permit him to overturn a decision of the Board of Immigration Appeals (“BIA”) by certifying it to himself.
This year alone Sessions has overturned four such decisions. In June, in Matter of A-B-, he vacated a 2014 precedent decision recognizing that domestic violence may be a basis for asylum and signaled that most gang-based asylum claims would similarly fail. This Monday, he claimed that his decision “restores the way the law initially was enforced for decades” and that it was the immigration judges’ duty to carry it out. In fact, he is turning the clock back over 20 years, disregarding important advances in asylum protection.
Yet despite Jeff Sessions’s claims that he is restoring “the original intent and purpose of the INA,” many of these policies are at odds with its plain language. INA § 208(a)(1) states that “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival . . . ), … may apply for asylum.” This means that asylum seekers have a right to request asylum at the border or in the United States, regardless of how or where they enter.
Sessions claims that the American people believe “that persons who want to come here should file their claims and wait their turn.” Asylum seekers, however, can only apply for asylum at the border or within the United States. There is no asylum visa. They cannot “wait their turn” and apply in their home countries. The U.N. Refugee Convention prohibits contracting states from imposing “penalties, on account of their illegal entry or presence, on refugees” who present themselves without delay to the authorities. It is the Justice Department’s “zero tolerance” policy that violates the plain language of the INA.
The 1980 Refugee Act codified our international obligations and created procedures for seeking asylum. In 1996, amendments to the INA created expedited removal for migrants without proper documents, but provided an escape valve for asylum-seekers, who got a credible fear interview before an asylum officer and, if they failed their CFIs, a brief review before an immigration judge. Congress intended this to be a low threshold to screen out baseless claims. Those who pass are placed into regular proceedings.
The Trump administration, however, is rewriting U.S. asylum law and revamping the credible fear process to prevent most Central Americans from escaping expedited removal. Sessions claims that credible fear reviews have “skyrocketed’ and that many asylum seekers are taking advantage of the process by “saying a few simple words – claiming a fear of return.” These screenings, however, are part of U.S. law. Faithfully executing the laws means following all U.S. law, not just those provisions that further the administration’s restrictionist agenda.
Lauren Gilbert, Esq., is professor of law at St. Thomas University School of Law, where she teaches immigration law, family law and constitutional law.
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Depressingly accurate account of how Jeff Sessions is being allowed to destroy the American Justice system. Yes, “Faithfully executing the laws means following all U.S. law, not just those provisions that further the administration’s restrictionist agenda.” So is insuring that U.S. Immigration Courts are fair and impartial and perform their sole function of “guaranteeing fairness and Due Process for all.” That means regardless of whether the results please the President, his “base,” or anyone else in the Administration. That’s what Due Process is all about.
But, the system can’t be saved until Sessions and the DOJ are removed from control and Congress creates an independent U.S. Immigration Court. Until then, the “dystopian gauntlet” created by Sessions will continue to threaten to bring down our entire U.S. Justice system and betray our national values.
In addition to inflating the number of immigrants, the political rhetoric coming from the right issues ominous warnings about immigrants from Mexico in particular. The nativist right fabricates a narrative that Mexican migration is a problem to be solved. While Mexico continues to be the largest single source country for immigrants, its relative share of the flow is diminishing.
In fiscal year 2000, immigrants from Mexico made up 20 percent of all people who became legal permanent residents (LPRs) of the United States. That percentage had fallen to 14.7 percent in fiscal year 2016. What characterizes Mexican immigration to the United States is that 68 percent in FY 2016 were the immediate relatives (spouses, minor children and parents) of U.S. citizens, the top priority of U.S. immigration laws since the 1920s.
A closer look at the recently released census data shows other trends that are positive for our nation. For example, foreign-born residents who are naturalized citizens have a median household income of $72,140 that compares favorably to native-born citizens’ median household income of $72,165. This income parity results in no small way from the growing number of Asian immigrants working in professional and managerial occupations and who are employed by educational and health sectors of the economy.
Although first-generation foreign-born families have higher poverty rates (15.7 percent) than the national overall rate (10.4 percent), second-generation families have lower poverty rates (9.3 percent) than the national rate.
This pattern of immigrant success, based on the talent and diligence of immigrants themselves, also has roots in the Immigration Amendments Act of 1990, which sought to increase avenues for “the best and the brightest” immigrants. By more than doubling the number of visas for persons of extraordinary ability, outstanding professors and researcher, or certain multinational executives and managers, and of persons with advanced degrees, immigrants with these traits have come to the United States in substantial numbers since its enactment.
The 1990 law also rewrote the H-1B visa for temporary professional specialty workers, which has been the leading pathway for immigrants to the United States and has been critical in the global competition for talent. The increased use of H-1B visas, as well as other nonimmigrant visas, has fostered much of the growth in immigrants with executive and professional occupations over the past two decades. My research offers fuller analyses of how policies directed at global competition, employment-based immigration and temporary professional workers have constricted, as well as fostered, the flow of immigration to the United States.
If there is anything made clear by these recent demographic trends it is that our policies on immigration should be forward-thinking, rather than backward-focused. Building a wall along the border with Mexico, a nation with a declining fertility rate and purportedly a positive employment outlook, is a Maginot Line for the 21st century. As I noted earlier, most Mexican immigrants are the immediate family of U.S. citizens.
Rather, we should be using these data to help us frame a debate about what the future of America will look like. We should be discussing policies such as: what are optimal levels of immigration? How should we balance this optimal level among family, employment and humanitarian flows? What role does temporary migration play in shaping future flows? These are not easy policy questions, so we need to get busy discussing our way forward.
Ruth Ellen Wasem is a clinical professor of policy at the Lyndon B. Johnson School of Public Affairs, the University of Texas in Austin. For more than 25 years, she was a domestic policy specialist at the U.S. Library of Congress’ Congressional Research Service. She has testified before Congress about asylum policy, legal immigration trends, human rights and the push-pull forces on unauthorized migration.
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Read Ruth’s complete article over on The Hill at the link.
We should be discussing:
How best to integrate the millions of law-abiding undocumented residents currently in and contributing to the United States into our society;
How to increase legal immigration so that in the future these beneficial workers, family members, and refugees who are also beneficial to the United States can come thorough the legal system rather than being forced into the “extra-legal” system as has happened in the past.
Notably, doing the foregoing two things would not only reduce US Immigration Court dockets to manageable levels, but also would allow DHS enforcement to concentrate on the real “bad guys” rather than treating maids and gardeners like bank robbers.
Instead, we’re tied up fighting against the absurd White Nationalist restrictionist agenda that seeks to limit legal immigration to “white guys” and to wipe out our national commitment to refugees and asylees while artificially “jacking up” Immigration Court backlogs and misdirecting DHS immigration enforcement. Talk about the “worst of all worlds!”
In addressing 44 newly-hired immigration judges earlier this week, their new boss, Jeff Sessions, demonstrated not only his usual level of bias (to a group charged with acting as impartial adjudicators), but a very strange grasp of how our legal system works.
Sessions told the new class of judges that lawyers “work every day – like water seeping through an earthen dam – to get around the plain words of the INA to advance their clients’ interest. Theirs is not the duty to uphold the integrity of the Act.”
Later in his remarks, Sessions opined that “when we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation.”
To me, the above remarks evince a complete misunderstanding of how our legal system works.
In 1964, the U.S. Supreme Court decided Katzenbach v. McClung, a landmark civil rights case. In order to find that the federal Civil Rights Act applied to a local, family-owned barbecue restaurant in Alabama, DOJ attorneys persuaded the Supreme Court that there was federal jurisdiction under the Constitution’s Commerce Clause because of segregation’s impact on interstate commerce. I’m no Constitutional law expert, but I’m not sure that when its authors afforded Congress the power “to regulate Commerce with foreign Nations, and among the several States,” that this is what they had in mind. Was creatively interpreting the Commerce Clause in order to end segregation “like water seeping through an earthen dam” to get around the clear words of the Constitution? Did ending segregation constitute, in Sessions’s opinion, doing violence to the rule of law out of a sense of sympathy for the black victims of Alabama’s racist policies?
Every positive legal development is the result of an attorney advancing a creative legal argument, often motivated by a sense of sympathy for unfair treatment of a class of individuals in need of protection. Many landmark decisions have resulted from such attorneys offering the court an unorthodox but legally sound solution to a sympathetic injustice. This is actually how the legal system is supposed to operate. Our laws are made by Congress, and not the Executive branch. When Congress drafts these laws, they and their staffers are well aware of the existence of lawyers and judges and their ability to interpret the statutory language.
Had Congress not wanted our asylum laws to be flexible, allowing them to be interpreted in myriad ways to respond to changing types of persecution carried out by different types of actors, it could have said so. When the courts found that victims of China’s coercive family planning policies did not qualify for asylum, Congress responded by amending the statutory definition of “refugee” to cover such harm. In the four years following the BIA’s conclusion that victims of domestic violence qualified for asylum, Congress notably did not enact legislation barring such grants. To the contrary, after Jeff Sessions issued his decision with the intent of preventing such grants, a Republican-led Congressional committee unanimously passed a measure barring funding for government efforts to carry out Sessions’ decision, a clear rebuke by the legislative branch of Sessions’s view that such claims are illegitimate. https://www.washingtonpost.com/politics/gop-led-house-committee-rebuffs-trump-administration-on-immigrant-asylum-claim-policy/2018/07/26/3c52ed52-911a-11e8-9b0d-749fb254bc3d_story.html?utm_term=.809760180e2a.
Interestingly, Sessions finds it perfectly acceptable to use unorthodox interpretations of the law when it serves his own interests. For example, he argues that he is upholding “religious liberty” in defending the right of bigots to discriminate against LGBTQ individuals. https://www.advocate.com/politics/2018/7/30/sessions-launches-new-lgbt-assault-religious-liberty-task-force. The conclusion drawn from this inconsistency is that Sessions does not oppose creative interpretations of the law; he rather believes that the only proper interpretation of the law is his.
One of the problems with this approach is that Sessions doesn’t actually know anything about the law of asylum. And yet he somehow feels entitled to belittle the analysis of the leading asylum experts in academia, the private bar, USCIS, ICE, and EOIR, all of whom have repeatedly found victims of domestic violence to satisfy all of the legal criteria for asylum. In its 1985 decision in Matter of Acosta, (a case that Sessions cited favorably in his controversial decision), the BIA noted that the ground of “particular social group” was added to the 1951 Convention on the Status of Refugees (which is the basis for our asylum laws) “as an afterthought.” The BIA further noted that “it has been suggested that the notion of ‘social group’ was considered to be of broader application than the combined notions of racial, ethnic, and religious groups and that in order to stop a possible gap in the coverage of the U.N. Convention, this ground was added to the definition of refugee.” (The full decision in Acosta can be read here: https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/14/2986.pdf).
As a young attorney, I learned (from the late, great asylum scholar Arthur Helton) that at the last moment, the Swedish plenipotentiary to the 1951 Convention pointed out that there were victims of Hitler and Stalin in need of protection who did not fall under the other four Convention grounds of race, religion, nationality, or political opinion. A fifth, catch-all ground was therefore proposed to serve as a “safety net” in such cases. In other words, the reason the particular social group category was created and is a part of our laws was because the Convention’s drafters, perhaps “like water seeping through an earthen dam,” created an intentionally nebulous legal standard out of a sense of sympathy for victims of injustice. The ground was therefore created to be used for the exact purpose decried by Sessions.
Because of the strength of such legal authority, Sessions’s decision in Matter of A-B-, in spite of dicta to the contrary, actually still allows for the granting of domestic violence and gang violence-based asylum claims. The decision criticized the BIA’s precedent decision in Matter of A-R-C-G- for reaching its conclusion without explaining its reasoning in adequate detail. However, where the record is properly developed, a legally solid analysis can be shown to support granting such claims even under the standards cited by Sessions.
This is what makes Sessions comments to the new class of immigration judges so disturbing. Having appointed judges whom his Justice Department has found qualified, he should now leave it to them to exercise their expertise and independent judgment to interpret the law and determine who qualifies for asylum. But in declaring such cases to lack validity, belittling private attorneys innovative arguments, and equating the granting of such claims to doing violence to the rule of law, Sessions aims to undermine right from the start the judicial independence of the only judges he controls. EOIR’s management has demonstrated that it has no intention of pushing back; instead, it asks how high Sessions wants the judges to jump.
Knowing this, how likely is one of the 44 new judges to grant asylum to a victim of domestic violence who has clearly met all of the legal criteria? New immigration judges are subject to a two-year probationary period. It’s clear that a grant of such cases under any circumstances will be viewed unfavorably by Sessions. In a highly publicized case, EOIR’s management criticized a judge in Philadelphia whose efforts at preserving due process they bizarrely interpreted as an act of disobedience towards Sessions, and removed the case in question and more than 80 cases like it from the judge’s docket.
So if a new judge, who may have a family to support, and a mortgage and college tuition to pay, is forced to choose between applying the law in a reasoned fashion and possibly suffering criticism and loss of livelihood, or holding his or her nose and adhering to Sessions’s views, what will the likely choice be?
Sessions concluded his remarks by claiming that the American people “have spoken in our laws and they have spoken in our elections.” As to the latter, Americans voted against Trump’s immigration policies by a margin of 2.8 million votes. As to the former, Congress has passed laws which have been universally interpreted by DHS, EOIR, and all leading asylum scholars as allowing victims of domestic violence to be granted asylum based on their membership in a particular social group. It is time for this administration to honor the rule of law and to restore judicial independence to such determinations.
Copyright 2018 Jeffrey S. Chase. All rights reserved.
A union representing the country’s 350 immigration judges slammed Attorney General Jeff Sessions for comments he made that suggested they were sidestepping the law and showing too much sympathy when handling certain cases.
“When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation,” Sessions said Monday in a speech to newly hired judges. “Your job is to apply the law – even in tough cases.”
Immigration judges, who work for the Department of Justice and are expected to follow guidelines laid out by the attorney general, said they believe Sessions was politicizing migrant cases.
“The reality is that it is a political statement which does not articulate a legal concept that judges are required to be aware of and follow,” Dana Marks, a spokeswoman for the National Association of Immigration Judges and an immigration judge in San Francisco, told BuzzFeed News. “It did appear to be a one-sided argument made by a prosecutor.”
Ashley Tabaddor, president of the National Association of Immigration Judges, added that “we cannot possibly be put in this bind of being accountable to someone who is so clearly committed to the prosecutorial role.”
Sessions, an ideological ally of President Trump on immigration, has established additional restrictions on the types of cases that qualify for asylum and when certain cases can be suspended. He was involved in the White House’s controversial “zero tolerance” policy that led to family separations at the U.S.-Mexico border.
AARON REICHLIN-MELNICK of the American Immigration Council reports on Immigration Impact:
Rather than encourage the new class of 44 immigration judges to be fair and impartial adjudicators in his Monday morning speech, Attorney General Jeff Sessions advocated for a deeply flawed immigration court system and directed judges to carry out the Trump administration’s punitive, anti-immigration agenda.
While many would have taken the opportunity to reinforce principles of due process and fairness to new judges, Sessions instead emphasized that judges must follow his commands and encouraged judges to ignore “sympathy” when applying the law to noncitizens in their courtrooms. He also renewed his criticisms of immigration lawyers and the noncitizens who access immigration courts each day in order to apply for immigration relief.
Throughout his speech, Sessions framed the role of immigration judges as enforcers of the law, not as neutral adjudicators in an adversarial system. He declared that the work of the new judges would “send a clear message to the world that the lawless practices of the past are over” and railed against “the problem of illegal immigration.”
Rather than be a place where individuals ask for immigration relief and impartial judges weigh the merits of each case, Sessions seemed to argue for the courts to be turned into a deportation mill. Judges would then spearhead the fight against illegal immigration.
Despite the Attorney General’s authority to establish performance standards and create new precedent for judges to follow, the Immigration and Nationality Act (INA) allows judges to independently make decisions on individual immigrants’ cases.
Ashley Tabaddor, the president of the union representing immigration judges, reacted to Sessions’ remarks, calling them “troubling and problematic” and accused Sessions of not “appreciat[ing] the distinction” between judges and prosecutors. “We are not one and the same as them.”
Sessions also renewed his attacks on immigration lawyers, first articulated in a 2017 speech (for which he was widely condemned) when he accused “dirty immigration lawyers” of encouraging undocumented immigrants to “make false claims of asylum [by] providing them with the magic words needed” to claim asylum.
Monday’s speech returned to a similar theme, with Sessions claiming that “good lawyers … work every day—like water seeping through an earthen dam—to get around the plain words of the INA to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the Act.”
In response to this new attack, the American Immigration Lawyers Association issued a press release accusing Sessions of expressing “disdain for lawyers who take a solemn oath to uphold the law” and showing “a complete disregard for the role of independent judges in overseeing our adversarial system.”
Sessions’ ongoing assault on judicial impartiality threatens to undermine the ability of judges to make decisions based only on the facts and law in front of them.
In addition, by attacking immigration lawyers, who every day play a vital role in ensuring that noncitizens have a fair day in court, Sessions continues to demonstrate that he has little interest in fairness or justice when it comes to immigrants. Our immigration courts should reflect our American values of fairness, compassion, and due process, rather than a rejection of them.
JEFF SESSIONS DEMANDS IMMIGRATION JUDGES SHOW NO SYMPATHY, SAYS IT DOES ‘VIOLENCE TO THE RULE OF LAW
BY
As the Trump administration continued to struggle to reunite hundreds of migrant children separated from their parents resulting from the president’s “zero-tolerance” policy, Attorney General Jeff Sessions told dozens of incoming immigration judges Monday to show no sympathy for those who appear before them in court.
“When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation,” Sessions said. “Your job is to apply the law—even in tough cases.”
Sessions, the most powerful attorney in the country as head of the Justice Department, was speaking to 44 new immigration judges in Falls Church, Virginia.
He also took aim at lawyers who represent immigrants who were caught illegally crossing the U.S.-Mexico border, suggesting they try to misconstrue immigration law “like water seeping through an earthen dam.” He told the judges it was their responsibility to “restore the rule of law” to the system.
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Read the rest of Ramsey’s article at the above link.
There is a simple term for justice not tempered by mercy, compassion, and sympathy: INJUSTICE. Indeed, the Fifth Amendment to the U.S. Constitution, which includes the essential Due Process Clause, was specifically intended to protect the populace against Executive overreach of the kind that England imposed on the Colonies prior to the Revolution. That’s exactly what we’re seeing under Jeff Sessions!
As most Immigration Judges recognize, Session’s overt White Nationalism, racial bias, and absurd claims that he is “restoring the rule of law” (when in fact he is doing the exact opposite) are totally out of control.
It’s time for a “Due Process intervention” by the Article III Courts. Sessions and the DOJ must be stripped of their untenable and unconstitutional control over the Immigration Courts. Appoint a “Special Master” — someone like retired U.S. Supreme Court Justice Anthony Kennedy — to run the Immigration Court System and restore Due Process and fairness until Congress does its job and creates an independent U.S. Immigration court outside the Executive Branch.
The problems aren’t going away under the Trump Administration. And, if the Article III Judiciary doesn’t act it will find itself crushed under thousands of defective removal orders that Sessions is urging the Immigration Judges to turn out without Due Process or the “fair and impartial” adjudication that it guarantees. The Article IIIs can run, but they can’t hide from this Constitutional crisis!
Sessions’s remarks are also an insult to all of the many current and former U.S Immigration Judges who, unlike Jeff Sessions, have been deciding “tough cases” for years, within the law, but with sympathy, understanding, humanity, and compassion which are also essential qualities for fair judging under our Constitutional system that Sessions neither understands nor respects. No wonder his own party judged him unqualified for an Article III judgeship years ago. He hasn’t changed a bit.
Sessions is trying to eliminate the need for asylum hearings on applications that are based on improper persecution claims. These meritless cases are contributing to an immigration court backlog crisis. If he is prevented from doing this by issuing precedent decisions to provide guidance on how asylum cases are supposed to be handled, the administration will resort to more extreme measures.
The United States does not have to grant any asylum applications. Asylum is discretionary, and the Supreme Court has held that the president can suspend the entry of aliens into the United States when he finds that their entry “would be detrimental to the interests of the United States.”
The court declined to decide whether “some form of inquiry into the persuasiveness of a president’s finding is appropriate.” It seems unlikely, however, that the court would reject a president’s finding that discretionary asylum grants should be suspended until the immigration court backlog crisis is brought under control because allowing the backlog to continue is detrimental to the interests of the United States.
This would not leave asylum seekers without a way to avoid persecution. Withholding of removal is available too and it is mandatory when eligibility has been established. The main difference in eligibility requirements is that asylum just requires a well-founded fear of persecution, and withholding requires the applicant to establish that it is more likely than not that he will be persecuted.
But withholding does not entitle aliens to remain in the United States. It just prevents them from being deported to a country where they will be persecuted
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Read Nolan’s complete article at the link.
Unlike Nolan, I believe that the ACLU has properly stated a case for jurisdiction under INA 242(e)(3)(A)(ii). Sessions’s decision in Matter of A-B- has the force and effect of a regulation. Moreover, the DHS implementing instructions give it the status of a “written policy” concerning credible fear and expedited removal. Here’s the complaint in Grace v. Sessions: https://www.aclu.org/legal-document/grace-v-sessions-complaint
Contrary to what Nolan suggests in his article, a petition for review of A-B- is not an adequate remedy for these plaintiffs. First, Matter of A-B-, to my knowledge, is still on remand to the Immigration Judge. Therefore, there is no “final order” for judicial review purposes.
Second, Matter of A-B- has never been subject to judicial review in any court. Yet, the plaintiffs in Grace face a likelihood of return to persecution without ever having a chance to challenge A-B- through a petition for review. That’s the result of Sessions’s improperly cutting off access to the Due Process hearing system before an Immigration Judge. If Matter of A-B- is eventually overruled by one or more Courts of Appeals, the respondents will have already been improperly deported to persecution or death.
Nolan also uses some of the questionable EOIR statistics that I commented on separately in my preceding post: https://wp.me/p8eeJm-2W2
The idea that Trump could essentially repeal the US asylum system on the basis of bogus national security concerns seems preposterous on its face. Yet, in the perverted “Age of Trump,” and given the Supremes’ majority’s spineless performance in Trump v. Hawaii, I suppose anything is posssible.
In the first two quarters of fiscal 2018, the immigration court only completed 92,009 cases. At this rate, the immigration court will have completed only 184,000 cases when fiscal 2018 ends on Sept. 30.
Even if DHS stopped arresting deportable aliens, it would take the immigration court four years to eliminate its backlog.
To reduce the backlog, Trump will have to pull aliens from the immigration court’s backlog and put them in expedited removal proceedings, and presumably this is why he is planning to expand the use of expedited removal proceedings.
In January, Trump instructed the DHS to apply expedited removal proceedings to the fullest extent of the law. This would extend it to include undocumented aliens who were not admitted or paroled into the United States and cannot prove that they have been here for two years.
It will be extremely difficult to help aliens who are caught up in this expansion. Congress has severely limited federal court jurisdiction over expedited removal proceedings.
The courts cannot consider expedited removal orders on a petition for review.
Review is available in habeas corpus proceedings, but it is limited to determinations of whether the petitioner is an alien; whether his removal has been ordered in expedited removal proceedings; and whether he has been lawfully admitted for permanent residence, or has been granted refugee or asylum status.
Other provisions permit challenges to the constitutionality of the system and its implementing regulations, and claims that the written policies and procedures issued under it are in violation of law. These challenges must be brought in the U.S. District Court for the District of Columbia within 60 days of when the challenged policy or procedure is implemented.
The expansion should greatly reduce the backlog, but it will not eliminate it. Too many of the aliens in removal proceedings have been physically present for two years.
Go on over to The Hill at the link to read the rest of Nolan’s article.
Even assuming that the vastly expanded use of expedited removal were upheld by the Article III Courts (I think it’s unconstitutional), cases couldn’t be “pulled from the backlog.” The Immigration Court backlog is made up almost entirely of cases where the individuals have already been here more than two years. Thus, expedited removal wouldn’t apply.
Interesting that notwithstanding the attention given to immigration, the DHS hasn’t gotten around to publishing the necessary regulatory change to expand expedited removal. That might suggest that “cooler, smarter heads” within DHS might actually be pointing out why that would be stupid.
The real “take away” here is that under Sessions’s gross mismanagement of the Immigration Courts more Immigration Judges produce fewer completed cases and more backlog. Basically, what I had predicted. And that’s with all sorts of pressure to churn out orders, cutting Due Process, unnecessary wasteful coercive detention, “aimless docket reshuffling,” some politicized personnel actions, and other “pedal faster gimmicks” by Sessions.
What that really shows is that Immigration Court cases are difficult cases and that even with Sessions’s shameless gaming of the system against migrants, Due Process has a certain largely irreducible minimum time for hearings.
Given that, increasing so-called “expedited removal” to reduce the existing backlog clearly would be irrational and present severe Constitutional difficulties under the Due Process clause.
Like it or not, a substantial legalization program combined with an independent Article I Immigration Court, more rational DHS enforcement priorities, and a healthy dose of prosecutorial discretion is the only way of getting the Immigration Courts back on track.
And, while I’ve said before that Democrats bear a fair share of the blame for the current Immigration Court dysfunction, Sessions has certainly made it immeasurably worse; the current barrier to reasonable immigration reform is clearly Trump and the GOP restrictionists, not the Democrats.
Indeed, the Trump-led GOP’s inability to accomplish the “no brainer” of DACA relief shows that it’s going to take “regime change” to solve this problem.
That means that things are likely to continue to get worse before they improve — that is, unless the Article IIIs step in and take control of the Immigration Courts away from Sessions as an act of Constitutional self-preservation.
Drastic action? Sure. Likely? Maybe not. But, the Article IIIs might eventually have to do it, since Sessions’s scofflaw actions on immigration are starting to run the entire Article III system into the ground, just like he is destroying the Immigration Courts.
The last legalization program was established by the Immigration Reform and Control Act of 1986, more than 30 years ago. The Democrats claim that this is because the Republicans won’t cooperate, but that isn’t true.
The Democrats could have established a legalization program without Republican cooperation during the first two years of Barack Obama’s administration. From January 2009 to January 2011, they had a majority in the House, and until Scott Brown’s special election in 2010, there were enough Democratic senators to overcome a filibuster.
And they could establish one now if they really wanted to.
Trump is willing to support legalization for 1.8 million aliens in the DACAprogram if the Democrats accept the three conditions in his framework on immigration reform and border security.
Trump wants to end chain migration. This should not be a deal-breaker if the legalization program were to be established by expanding the availability of Special Immigrant Juveniles (SIJ) status to include DACA participants, which could restrict the end of chain migration to them as opposed to ending it for everyone.
SIJ provisions state, “no natural parent or prior adoptive parent of any alien provided special immigrant status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.”
Trump also wants a wall along the border with Mexico, which would make it more difficult for parents to make illegal crossings with their young children in the future. Adults may be able to climb over a wall 20 or 30 feet high, but young children can’t.
The Democrats have been willing to end the DVP in the past. Sen. Chuck Schumer’s (D-N.Y.) Gang of Eight bill would have repealed it in 2013 if it had been enacted.
The problem seems to be that legalization isn’t very important to the Democrats.
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Go on over to The Hill at the above link for Nolan’s complete article!
I agree with Nolan that legalization should be the focus.
I have also made a similar observation that during the first two years of the Obama Administration, Democrats could have solved what have become the three most pressing problems on the domestic front:
Legalization;
Dreamer relief; and
An independent U.S. Immigration Court.
Our country and the good folks caught up the in current system are paying the price every day for these failures. But, past is past. The important thing is not to make the same mistakes again if and when the Democrats and whatever “moderate” Republicans still remain get a chance to act.
