⚖️🗽👏🙏 PRO BONO SPOTLIGHT: SPLC PRO BONO SUPREMES’ WIN GIVES ASYLUM APPLICANT A SECOND CHANCE — Round Table 🛡️⚔️ Also Helped!

 

From SPLC:

Estrella Santos-Zacaria has come a long way from San Pedro Soloma, Guatemala, a village nestled in the Sierra de los Cuchumatanes mountains and known as El Valle del Ensueño, or the Valley of Dreams.

For years, Santos-Zacaria dreamed desperately — of escape.

In 2008, she attempted to immigrate to the U.S., fearing that the violence she had experienced because of her sexual orientation and identity as a transgender woman could get her killed. Since then, she has been deported twice.

But in January, her case made its way to the U.S. Supreme Court. And on May 11, Santos-Zacaria won the right to further challenge her deportation — and the potential to start a new life in the U.S. Other immigrants facing deportation could benefit, as well, because the ruling helps clear a procedural obstacle for noncitizens seeking judicial review of rulings by the Board of Immigration Appeals (BIA), an administrative appellate body within the U.S. Department of Justice.

The Supreme Court’s decision, authored by Justice Ketanji Brown Jackson, also marks a notable step in its acknowledgment of transgender people. Santos-Zacaria’s chosen name, Estrella, was referenced alongside her former given name, and her proper pronouns were used throughout.

The case was the first initiated by the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (SIFI) to reach the U.S. Supreme Court. SIFI provides pro bono legal representation to asylum seekers who are being held at immigrant detention centers in the Deep South.

“What Estrella’s won is the right to keep fighting,” said Peter Isbister, senior lead attorney for SIFI. “And that would not have been possible without her team of volunteer attorneys. Cases and clients like Estrella are why SIFI believes so deeply in having a pro bono program.”

Read More

In solidarity,

Your friends at the Southern Poverty Law Center

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The Round Table filed an amicus brief supporting Estrella’s position before the Supremes.

⚖️🗽🛡⚔️ ON A ROLL — ROUND TABLE ON THE WINNING SIDE FOR THE 3RD TIME @ SUPREMES! — Santos-Zacaria v. Garland — Jurisdiction/Exhaustion — 9-0!

In her case, both the BIA and the 5th Circuit had gone out of the way NOT to meaningfully review life or death mistakes made in the Immigration Court. In doing so, they tossed aside the realities and roadblocks facing those seeking justice in Immigration Court and their representatives (if any, in a glaringly unfair system).

This case shows the critical importance of pro bono immigration assistance. These lower court Federal Judges focused not on constitutionally required due process and fundamental fairness, or on the vulnerable human life at stake, but rather on inventing ways NOT to provide fair hearings in some of the most important, perhaps the most important, cases coming before the Federal Justice system. 

Pro bono representation levels the playing field and exposes the poor performance of those whose sole focus should be individual justice, rather than “institutional task avoidance!”

🇺🇸 Due Process Forever!

PWS

11-26-23

🏴‍☠️PERSECUTED TRANSGENDER INDIVIDUAL DIES ⚰️IN EL SALVADOR WHILE HARRIS, GARLAND, & MAYORKAS FAIL TO RE-ESTABLISH LEGAL ASYLUM SYSTEM, MAKE LONG OVERDUE REFORMS!☠️ — VEEP Apparently Can’t Grasp Why Refugees Refuse To Stay In Countries Where They Are Likely To Be Persecuted & Die — The “Easily Fixable” Part Of The Problem Is NOT Thousands Of Miles Away In Foreign Countries, But With Garland’s & Mayorkas’s Inexcusable Failures To Act On Progressive Reforms Of Our Existing Legal System For Asylum Seekers!

Grim Reaper
“This Dude loves the ‘Miller Lite’ approach to asylum by Garland and Mayorkas, as well as Harris’s latest tone-deaf ‘victim shaming.’” Keeps him (as well as human smugglers) in business! Reaper Image: Hernan Fednan, Creative Commons License

 

https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?guid=25ce5cef-76d6-4701-9193-3d887d407397&v=sdk

Marcos Aleman reports or AP  in the LA Times:

SAN MIGUEL, El Salvador — Rejected by her family, Zashy Zuley del Cid Velásquez fled her coastal village in 2014, the first of a series of forced displacements across El Salvador. She had hoped that in the larger city of San Miguel she could live as a transgender woman without discrimination and violence, but there she was threatened by a gang.

She moved away from San Miguel, then back again in a series of forced moves until the 27-year-old was shot to death April 25, sending shock waves through the close-knit LGBTQ community in San Miguel, the largest city in eastern El Salvador.

“Zashy was desperate; her family didn’t want her … and the gangsters had threatened her,” said Venus Nolasco, director of the San Miguel LGBTQ collective Pearls of the East. “She knew they were going to kill her. She wanted to flee the country, go to the United States, but they killed her with a shot through her lung.”

One day after Del Cid’s slaying, U.S. Vice President Kamala Harris identified anti-LGBTQ violence in Central America as one of the root causes of migration in the region during a virtual meeting with the president of neighboring Guatemala, Alejandro Giammattei. She is visiting Guatemala and Mexico this week.

Transgender migrants were present in the Central American caravans that attempted to reach the United States border in recent years, fleeing harassment, gang extortion, violence and police indifference to crimes against them. Even in those large migrant movements, they say they faced harassment.

Things had been rough during Del Cid’s first stint in San Miguel. She had been living in a neighborhood where, as in many parts of the country, the MS-13 gang was the ultimate local authority. Gang members began to harass her, then brutally beat her, breaking her arm in 2015, Nolasco said.

“They warned her to leave, but she didn’t listen,” Nolasco said.

Del Cid moved in with Nolasco in the same neighborhood. One day, the gang grabbed Del Cid again.

“They took her, they wanted to kill her,” Nolasco said. “I begged them not to kill her, to let her go and she would leave the neighborhood.”

Del Cid moved back to her hometown, but her family rejected her again. She tried to please them, but she couldn’t, Nolasco said. Del Cid joined a church, got a girlfriend and had a baby girl, but could not maintain that life, she said.

She returned to San Miguel, where initially things seemed to go better. In 2020, Del Cid received humanitarian and housing support from COMCAVIS TRANS, a national LGBTQ rights organization, and the United Nations High Commissioner for Refugees.

Del Cid rented a home and opened a beauty salon there. She hired another woman to help her and was participating in an entrepreneurship program. She was preparing a business proposal to move the salon into its own space.

But Del Cid was shot in the back walking alone at night down the street. Passersby tried to help her and took her to a hospital, where she died. So far, police have made no arrests, and Nolasco believes that like other hate crimes in the country, “it will be forgotten; they’re not interested in what happens to us.”

Laura Almirall, UNHCR representative in El Salvador, said Del Cid’s killing frightened her community and saddened everyone who knew her.

“She was excited about her new plans and her new life. And unfortunately and tragically, everything came to an end,” she said.

Nolasco said that in San Miguel, some 70 miles east of the capital, the transgender community endures constant harassment from intolerant residents and gangs. They have rocks thrown at them, are beaten and are victims of extortion. If they go to police to make a report, they are insulted and demeaned. “Don’t come here to claim rights, because there are no rights for you,” police tell them, Nolasco said.

. . . .

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Read the rest of the article at the link. 

Despite some legal nonsense from EOIR and sometimes from uninformed Circuit Judges who have never represented asylum seekers and know little of actual conditions in the Northern Triangle, neither El Salvador nor the other Northern Triangle governments are “willing and able” to protect most individuals suffering gender-based and other forms of persecution. Decisions claiming otherwise are, in most cases, legally wrong and disingenuous to boot.

The U.S. asylum system needs expert Asylum Officers at DHS and progressive expert Immigration Judges at EOIR. Babbling (misleadingly) about “sealed borders” won’t take the place of telling Garland and Mayorkas to stop screwing around, bring in progressive experts, and fix the U.S. asylum system before more die! V.P. Harris could have taken the first necessary step toward “fixing the Southern Border” without even leaving DC.

How are we going to promote the rule of law in other nations when we ourselves are unwilling to exhibit honesty and follow the law with respect to the most vulnerable in the world seeking legal refuge at our borders?

🇺🇸Due Process Forever!

PWS 

06-09-21

PODCAST “REVEALS” DUE PROCESS DISASTER IN IMMIGRATION COURTS, PARTICULARLY FOR TRANSGENDER INDIVIDUALS — Deep Seated Problems Existed — This Administration Made Them Worse!

https://www.revealnews.org/episodes/trans-national-migration/

Trans National Migration

Co-produced with PRX Logo

We examine the record of one of the toughest immigration judges in the country, including the surprising way her decisions benefited transgender asylum-seekers. Then we follow one transgender woman who flees El Salvador for the United States to try to claim asylum.

Our final story takes us to Turkey, and focuses on a small but growing group of refugees seeking a new life: young Afghan women fleeing abuse, forced marriage and persecution in their homeland. Reporter Fariba Nawa tells the story of Hoor, who made the dangerous journey into Turkey alone, only to be assaulted by an Afghan man in Istanbul. Against all odds, Hoor sought justice for her abuser and ultimately prevailed.

Credits

Our first story about an immigration judge who ruled on hundreds of cases involving transgender asylum seekers was reported and produced by Patrick Michels and edited by Brett Myers.

Our second story about a transgender woman who fled El Salvador was reported by Alice Driver. It was produced by Casey Minor with help from Emily Harris and Amy Isackson and was edited by Brett Myers.

Our story about Afghan female migrants was reported and produced by Fariba Nawa and edited by Taki Telonidis.

Our production manager is Najib Aminy. Original score and sound design by Jim Briggs and Fernando Arruda, who had help from Kaitlin Benz and Katherine Rae Mondo.

Support for Reveal is provided by the Reva and David Logan Foundation, the Ford Foundation, the John D. and Catherine T. MacArthur Foundation, the John S. And James L. Knight Foundation, the Heising-Simons Foundation and the Ethics and Excellence in Journalism Foundation.

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Please click the link at the top to listen.

My takeaways:

  • The lack of sensitivity training and proper application of the legal standards for asylum that was allowed to go on for many years in this Immigration Courtroom is appalling;
  • The BIA, whose job is supposed be insuring that individuals’ Due Process rights are respected and asylum law is applied in a fair and impartial manner, failed to do its job;
  • The qualification of individuals for asylum based on gender classifications has been well established since Matter of Tobago-Alfonso, 20 I&N Dec. 819 (BIA 1990) was published (at the direction of then-Attorney General Janet Reno) in 1994;
  • LGBTQ cases were well-documented, credible, and routinely granted by the U.S Immigration Judges at the Arlington Immigration Court during my tenure there;
  • I don’t remember ever denying a transgender case — most were either stipulated or agreed upon by the DHS Office of Chief Counsel — yet EOIR failed to institutionalize those “best practices” that would have promoted justice, consistency, and efficiency;
  • Immigration Judges are bound to follow not only BIA precedents, but also the precedents by the U.S. Circuit Courts in the jurisdiction where they sit — that obviously was not happening here — a clear violation of both law and ethics;
  • You can see the difference when an Immigration Judge does listen, properly applies the law in the generous manner dictated by the Supreme Court in INS v. Cardoza-Fonseca and the BIA in Matter of Mogharrabi, and gives the respondent “the benefit of the doubt” as set forth in the U.N. Handbook on the Refugee Convention;
  • The difference in people’s lives and the benefits to the U.S. when judges properly apply asylum law to protect individuals, as intended, is obvious;
  • Those without lawyers and those held in long-term detention are being treated unfairly and not in accordance with Due Process;
  • This system needs reform so that it operates independently, impartially, and under the legal standards established by law and by Article III Circuit Courts;
  • Immigration Judges who are biased against asylum seekers must be uniformly reversed and “outed” by a real Appellate Tribunal, not the current “go along to get along” version of the BIA;
  • Judges who unwilling to threat asylum applicants and other foreign nationals fairly should not be reappointed to the bench in a competitive, merit-based process;
  • Trump’s recent “we don’t need no stinkin’ judges for asylum cases” rhetoric is as absurd as it is ignorant, unconstitutional, and damaging to both our precious  justice system and vulnerable human beings who need and are legally entitled to our protection.

Many thanks to Lawrence University Scarff Professor of Government Jason Brozek for bringing this highly relevant podcast to my attention.

I am at Lawrence University (my alma mater) in Appleton, WI for two weeks as the Scarff Family Distinguished Visiting Professor. Jason and I currently are teaching a “mini-seminar” in Kasinga/FGM/Gender-Based Asylum in the Government Department at Lawrence. This podcast is directly relevant and “breathes life” into the issues we have been discussing with the wonderfully talented and engaged students in our class.

PWS

04-07-19

 

 

 

SPLIT DECISION: Supremes Deliver “Gut Punch” To Transgender Americans, But Give Another Round To Dreamers

SPLIT DECISION: Supremes Deliver “Gut Punch” To Transgender Americans, But Give Another Round To Dreamers

 

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

On Tuesday, a divided Supreme Court allowed a portion of Trump’s homophobic ban on certain transgender troops to go into effect. At the same time, they properly squelched the arrogantly disingenuous attempt by Trump and his “go along to get along” Solicitor General Noel Francisco to “expedite” review of lower court rulings that found that Trump, former Attorney General Sessions, and DHS acted lawlessly and without any apparent legal rationale in terminating the “DACA” program. In simple terms, decisions that required the Administration to follow the law.

Prior Solicitors General have sometimes balked at representing liars and presenting disingenuous arguments in behalf of their Government “clients.” (Actually, somewhat of a bureaucratic misnomer, because the “institutional client” is really the “People of the U.S.”  who pay Government salaries, regardless of whether they are citizens or can vote.) Not this one, who seems to savor the opportunity to carry Trump’s more than ample “dirty water” and reduce the credibility of his one-respected office to around zero. As I predicted, nobody serves Trump without being tarnished.

For the LGBTQ community, it’s a horrible signal that a narrow majority of the Supremes are unwilling to move into the 21stcentury and recognize their Constitutional rights to equal protection under the 14thAmendment as well as their rights as human beings. It’s also shockingly disrespectful to those who have stepped forward to risk their lives in the name of our country, something Trump took great pains to avoid. It’s doubly disappointing that Chief Justice John Roberts joined his far-right colleagues on this one, at least in part (he rejected the bogus argument for immediate review put forth by Francesco and instead sent the case back to the lower courts for further development).

Unlike some of his colleagues on the right, Roberts has some sense of institutional history, the horror and existential dangers to democracy of Trump as Chief Executive, and the future. Come on, “Chiefie,” we can all get smarter as we get older! Don’t blow your chance to “get on the right side of history.” Leave the “Four Horsemen of the Apocalypse” behind in their dust and join your four more enlightened colleagues in moving America forward and showing some leadership and courage on the Supremes. As this month has shown, you might be the only person able to save America.

Paraphrasing what many pundits have said, “The Supremes can basically do anything they want, whenever they want to, for any reason they can come up with, because they are Supreme.” With that caveat in mind, the Court’s well-deserved slap down of Trump on DACA basically leaves the full protections in effect for Dreamers until the end of the Trump Administration. At that point, we’ll either get a new President, or there won’t be any country left for the “Dreamers,” the Supremes, or the rest of us to “dream about” or live in. The so-called “American Dream” will be at a tragic end. We’ll all be living in a continuing nightmare of cruelty, incompetence, and randomness.

I think the Supremes would be wise not to take up the DACA issue ever. It needs to be resolved by the lower courts, who have for the most part done a fine job, and the Congress, which hasn’t. But, assuming the Supremes do take the issue, they probably wouldn’t schedule argument before the October Term 2020. That makes it highly unlikely that they would reach and issue any final decision before the November 2020 elections. There would certainly be no reason for them to “rush to judgement” on this one.

Thus, Trump’s hollow offer of meager “Dreamer relief,” no path to green cards or citizenship and less than they have now under the court decisions, is even less of a legitimate “bargaining chip” than it was before. And, “poisoning the well” with Stephen Miller’s White Nationalist anti-asylum, child-abuse agenda shows how intellectually dishonest Trump and the GOP are and that the rancid “thousand pages of vile gibberish” that they launched as a “fake offer to reopen our Government” is a pure political stunt and an insult to 800,000 unpaid Government workers.

Moreover, all of this nonsense must be viewed in context of reality. That’s something that seldom intrudes on the daily intentionally created chaos and national dysfunction of this Administration. The Dreamers aren’t going anywhere! Almost all of them have legitimate applications for immigration relief that they can file in Immigration Court, including cancellation of removal, asylum, withholding of removal, or relief under the CAT.

Trump, Sessions, and now Whitaker have totally destroyed the U.S. Immigration Court system.  I’m not sure it will be able to reopen even when the Trump shutdown finally ends. With a politically-created backlog of well over one million cases, growing by tens of thousands with every day of the mindless Trump shutdown, virtually no “Dreamer” (other than a minute percentage who might be convicted of crimes and probably would have had their DACA status revoked or denied on that basis) would be scheduled for removal proceedings within the next four years, let alone by 2020. Indeed, if Congress doesn’t step in and provide Dreamer relief and an Article I independent Immigration Court to replace the current dysfunctional mess in the DOJ, some of these cases may well still be pending a decade from now!

This context also reaffirms the total disingenuous absurdity of SG Francisco’s argument that this is an “emergency” requiring “early intervention” by the Supremes. Nothing could be further from the truth. The only “emergency” is the one intentionally caused by his “client” Trump — by illegally and unnecessarily trying to shut down the DACA program and aggravated by his Administration’s wanton destruction of our U.S. Immigration Courts, and by the “Trump shutdown.”

The Supremes must take a “hard line” against being “sucked in” to the many bogus “emergencies” that Trump creates to detract attention from his and his party’s inability to govern in even a minimally fair and effective manner. Perhaps, it’s also time for Francisco to reread the rule of ethics for lawyers and have a “heart to heart” with his “client” about abusing the Federal Courts with semi-frivolous litigation and presenting lies as “facts.” It’s never too late to learn!

PWS

01-23-19

APPROXIMATELY 700,000 TRANSGENDER HUMAN BEINGS LIVE IN THE U.S. – The Trump Administration Seeks To “Define” Them Out Of Existence!

https://www.nytimes.com/2018/10/21/us/politics/transgender-trump-administration-sex-definition.html

Erica L. Green, Katie Benner and Robert Pear report for the NY Times:

WASHINGTON — The Trump administration is considering narrowly defining gender as a biological, immutable condition determined by genitalia at birth, the most drastic move yet in a governmentwide effort to roll back recognition and protections of transgender people under federal civil rights law.

A series of decisions by the Obama administration loosened the legal concept of gender in federal programs, including in education and health care, recognizing gender largely as an individual’s choice and not determined by the sex assigned at birth. The policy prompted fights over bathrooms, dormitories, single-sex programs and other arenas where gender was once seen as a simple concept. Conservatives, especially evangelical Christians, were incensed.

Now the Department of Health and Human Services is spearheading an effort to establish a legal definition of sex under Title IX, the federal civil rights law that bans gender discrimination in education programs that receive government financial assistance, according to a memo obtained by The New York Times.

The department argued in its memo that key government agencies needed to adopt an explicit and uniform definition of gender as determined “on a biological basis that is clear, grounded in science, objective and administrable.” The agency’s proposed definition would define sex as either male or female, unchangeable, and determined by the genitals that a person is born with, according to a draft reviewed by The Times. Any dispute about one’s sex would have to be clarified using genetic testing.

“Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth,” the department proposed in the memo, which was drafted and has been circulating since last spring. “The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”

The new definition would essentially eradicate federal recognition of the estimated 1.4 million Americans who have opted to recognize themselves — surgically or otherwise — as a gender other than the one they were born into.

“This takes a position that what the medical community understands about their patients — what people understand about themselves — is irrelevant because the government disagrees,” said Catherine E. Lhamon, who led the Education Department’s Office for Civil Rights in the Obama administration and helped write transgender guidance that is being undone.

The move would be the most significant of a series of maneuvers, large and small, to exclude the population from civil rights protections and roll back the Obama administration’s more fluid recognition of gender identity. The Trump administration has sought to bar transgender people from serving in the military and has legally challenged civil rights protections for the group embedded in the nation’s health care law.

Several agencies have withdrawn Obama-era policies that recognized gender identity in schools, prisons and homeless shelters. The administration even tried to remove questions about gender identity from a 2020 census survey and a national survey of elderly citizens.

For the last year, the Department of Health and Human Services has privately argued that the term “sex” was never meant to include gender identity or even homosexuality, and that the lack of clarity allowed the Obama administration to wrongfully extend civil rights protections to people who should not have them.

Image
, now at the Department of Health and Human Services, was among the conservatives who blanched at the Obama administration’s expansion of sex to include gender identity.CreditAaron P. Bernstein/Getty Images

Roger Severino, the director of the Office for Civil Rights at the department, declined to answer detailed questions about the memo or his role in interagency discussions about how to revise the definition of sex under Title IX.

But officials at the department confirmed that their push to limit the definition of sex for the purpose of federal civil rights laws resulted from their own reading of the laws and from a court decision.

Mr. Severino, while serving as the head of the DeVos Center for Religion and Civil Society at the Heritage Foundation, was among the conservatives who blanched at the Obama administration’s expansion of sex to include gender identity, which he called “radical gender ideology.”

In one commentary piece, he called the policies a “culmination of a series of unilateral, and frequently lawless, administration attempts to impose a new definition of what it means to be a man or a woman on the entire nation.”

“Transgender people are frightened,” said Sarah Warbelow, the legal director of the Human Rights Campaign, which presses for the rights of lesbian, gay, bisexual and transgender people. “At every step where the administration has had the choice, they’ve opted to turn their back on transgender people.” After this article was published online, transgender people took to social media to post photographs of themselves with the hashtag #WontBeErased

The Department of Health and Human Services has called on the “Big Four” agencies that enforce some part of Title IX — the Departments of Education, Justice, Health and Human Services, and Labor — to adopt its definition in regulations that will establish uniformity in the government and increase the likelihood that courts will accept it.

The definition is integral to two proposed rules currently under review at the White House: One from the Education Department deals with complaints of sex discrimination at schools and colleges receiving federal financial assistance; the other, from health and human services, deals with health programs and activities that receive federal funds or subsidies. Both regulations are expected to be released this fall, and would then be open for public comment, typically for 60 days. The agencies would consider the comments before issuing final rules with the force of law — both of which could include the new gender definition.

Civil rights groups have been meeting with federal officials in recent weeks to argue against the proposed definition, which has divided career and political appointees across the administration. Some officials hope that health and human services will at least rein in the most extreme parts, such as the call for genetic testing to determine sex.

After more than a year of discussions, health and human services is preparing to formally present the new definition to the Justice Department before the end of the year, Trump administration officials say. If the Justice Department decides that the change is legal, the new definition can be approved and enforced in Title IX statutes, and across government agencies.

The Justice Department declined to comment on the draft health and human services proposal. The Justice Department has not yet been asked to render a formal legal opinion, according to an official there who was not authorized to speak about the process.

But Attorney General Jeff Sessions’s previous decisions on transgender protections have given civil rights advocates little hope that the department will prevent the new definition from being enforced. The proposal appears consistent with the position he took in an October 2017 memo sent to agencies clarifying that the civil rights law that prohibits job discrimination does not cover “gender identity, per se.”

Harper Jean Tobin, the policy director of the National Center for Transgender Equality, an advocacy group, called the maneuvering “an extremely aggressive legal position that is inconsistent with dozens of federal court decisions.”

Image

A transgender flag outside a bar in Brooklyn. The agency’s proposed definition would define sex as either male or female, unchangeable, and determined by the genitals that a person is born with.CreditAnnie Tritt for The New York Times

Health and human services officials said they were only abiding by court orders, referring to the rulings of Judge Reed O’Connor of the Federal District Court in Fort Worth, Tex., a George W. Bush appointee who has held that “Congress did not understand ‘sex’ to include ‘gender identity.’”

A 2016 ruling by Judge O’Connor concerned a rule that was adopted to carry out a civil rights statute embedded in the Affordable Care Act. The provision prohibits discrimination based on race, color, national origin, sex, age or disability in “any health program or activity” that receives federal financial assistance.

But in recent discussions with the administration, civil rights groups, including Lambda Legal, have pointed to other court cases. In a legal memo presented to the administration, a coalition of civil rights groups wrote, “The overwhelming majority of courts to address the question since the most relevant Supreme Court precedent in 1998 have held that antitransgender bias constitutes sex discrimination under federal laws like Title IX.”

Indeed, the health and human services proposal was prompted, in part, by pro-transgender court decisions in the last year that upheld the Obama administration’s position.

In their memo, health and human services officials wrote that “courts and plaintiffs are racing to get decisions” ahead of any rule-making, because of the lack of a stand-alone definition.

“Courts and the previous administration took advantage of this circumstance to include gender identity and sexual orientation in a multitude of agencies, and under a multitude of laws,” the memo states. Doing so “led to confusion and negative policy consequences in health care, education and other federal contexts.”

The narrower definition would be acutely felt in schools and their most visible battlegrounds: locker rooms and bathrooms.

One of the Trump administration’s first decisive policy acts was the rescission by the Education and Justice Departments of Obama-era guidelines that protected transgender students who wanted to use bathrooms that correspond to their gender identity.

Since the guidance was rescinded, the Education Department’s Office for Civil Rights has halted and dismissed discrimination cases filed by transgender students over access to school facilities. A restrictive governmentwide definition would cement the Education Department’s current approach.

But it would also raise new questions.

The department would have to decide what documentation schools would be required to collect to determine or codify gender. Title IX applies to a number of educational experiences, like sports and single-sex classes or programs where gender identity has come into play. The department has said it will continue to open cases where transgender students face discrimination, bullying and harassment, and investigate gender-based harassment as “unwelcome conduct based on a student’s sex” or “harassing conduct based on a student’s failure to conform to sex stereotypes.”

The Education Department did not respond to an inquiry about the health and human services proposal.

Ms. Lhamon of the Obama Education Department said the proposed definition “quite simply negates the humanity of people.”

A version of this article appears in print on of the New York edition with the headline: Trump May Limit How Government Defines One’s Sex. Order Reprints | Today’s Paper | Subscribe
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Historical footnote:  At one point in our “respective prior incarnations,” circa late 1970s, early 1980s, Robert Pear was the “immigration beat” reporter for the NY Times, and I was the Deputy General Counsel at the “Legacy INS.”  I was sometimes asked by the Commissioner and the Public Information Office to respond to Robert’s telephonic inquiries. Smart, knowledgeable, incisive, and a “straight shooter” was how I would have described him in those days.
Moving on, I had a number of transgender individuals appear before me in Immigration Court. Almost all of them had been damaged by rejection, abuse, intentional cruelty, and humiliation inflicted by family, governments, teachers, and other community members who should  have known better. The majority had either attempted suicide or admitted to having suicidal impulses. Yet, many appeared to have found the courage and determination to persevere.
Sadly, the attempt to deny the legal existence and humanity of transgender individuals seems to be something right out of the “Third Reich Playbook.” Using the law to “pick on,” target, and “legitimize” the dehumanization of already marginalized minorities was a “Hitler specialty.” And, in too many cases, lawyers and the judiciary were more than happy to help out. Some were even eager to “out-Hitler Hitler.” 
History will deal  harshly with the hate, racism, and intolerance being promoted by the Trump Administration. Where will YOU be recorded as standing! What have YOU done to remove these horrible individuals from public office and to resist their toxic and immoral programs and actions?
PWS
10/21/18

 

 

 

 

DEPORTATION TO DEATH — HOW AMERICA FAILS TO LIVE UP TO ITS HUMANITARIAN OBLIGATIONS!

https://www.washingtonpost.com/news/theworldpost/wp/2018/01/15/lgbt-el-salvador/

Josefina Salomon reports from Mexico fro the Washington Post:

“MEXICO CITY — Cristel woke up on the freezing floor of a tiny room in a detention center in San Diego. She was alone, dirty, hungry and exhausted. It was April. Eight days earlier, she had been arrested on the American side of the border crossing at Tijuana, where she planned to claim asylum. She had been in solitary confinement since then. The Immigration and Customs Enforcement (ICE) officers had given her no reason for her detention.

Five years on the run had left her drained. From the floor of that San Diego cell, it seemed like she was out of options. She could not bear the thought of being forced by ICE to return to El Salvador. That would be a death sentence.

Death threats from violent gangs had chased Cristel from her native El Salvador, through Guatemala and Mexico, up to the U.S. border. They kept her awake at night, echoing in the back of her head. In El Salvador and on her journey north, she had been bullied, threatened, robbed, beaten and raped. At one point, she had turned to sex work. She had been kidnapped and abused. She had escaped, but she still didn’t feel safe.

Cristel is not her real name. She is 25 and grew up in San Salvador. As a transgender woman, she has faced discrimination and violence nearly her entire life. My colleagues and I met Cristel half a dozen times over the last 18 months, first in San Salvador, and later at different points along her journey, as she moved toward what she hoped was salvation in the U.S.

Over time, Cristel lost weight and dark circles appeared under her eyes as fear, exhaustion and frustration took hold. Sometimes while we were talking, there would be seemingly unstoppable bursts of tears. Weeks might go by before we heard from her. Had she been hurt, or worse? The question, “What is going to happen to me?”, which she asked at every one of our meetings, became more and more urgent.\

. . . .

Starting in the 1990s, the U.S. was one of the first countries to begin admitting asylum seekers and refugees who were persecuted on the basis of their sexual orientation. While the Trump administration has not sought to change U.S. asylum law, it has made it clear that it aims to decrease the overall number of refugees admitted into the country and to raise the threshold for asylum seekers’ “credible fear” of persecution as a basis for their asylum.

According to figures from the U.S. Department of Justice, the number of asylum claims by people from El Salvador has been increasing dramatically in the past few years. There were nearly 18,000 claims in 2016 alone. While the number of people who have secured asylum in the U.S. increased in that period, so did the number of claims that were denied, abandoned or withdrawn. Many prospective asylum seekers and analysts have said this is because of the arduous process and the harsh detention conditions asylum seekers are forced to endure. The most vulnerable, like Cristel, often have few options but return to the danger they were desperately trying to escape in the first place.

In San Diego, after first being confined to solitary, Cristel was transferred to a cell that she shared with eight men. She was kept there for a month and a half. At her hearing, when it eventually came, she was appointed a pro bono lawyer, but her claim for asylum was denied. She was transferred to another detention center in Arizona, where she was handcuffed, put on a plane and sent back to a nightmare.

. . . .

She had gone back to live at her mother’s house, but the gang found her anyway. The extortion had resumed. Every time she is late with her payments, even by a day or two, gang members beat her. “I’m exhausted of being forced to pay to live. I want to leave but there’s nowhere to go.”

Sobbing, she said, “They are going to kill me.”

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Read the complete story at the link.

This is what “Trumpism” and “GOP restrictionism” are really about — turning our backs on those in the most need of protection.

One of the most disturbing things about this story is that, as noted by Solomon, the U.S. actually has been fairly routinely granting gender-based cases like this since at least the mid-1990s. See, e.g., Matter of Tobaso-Alfonso,20 I&N Dec. 819 (BIA 1990). In many U.S. Immigration Courts cases like this would routinely be granted, often with the DHS’s concurrence.

So, “Cristel” was unlucky.  She got the got the wrong Court, the wrong Judge, the wrong time, and perhaps the wrong pro bono attorney — and it’s likely to cost her life! That’s not justice, and that’s not a properly functioning U.S. Immigration Court that “guarantees fairness and due process to all.” Instead, the “captive” U.S. Immigration Court is turning into a “whistle-stop on the Trump/Sessions Deportation Railroad!” That’s something of which every true American should be ashamed. We need an independent, Due Process focused U.S. Immigration Court now!

PWS

01-16-18

WAR ON AMERICA: Trump Sticks It To Transgender Americans — Bans Them From Military!

https://www.washingtonpost.com/news/post-politics/wp/2017/07/26/trump-announces-ban-on-transgender-people-in-u-s-military/?utm_term=.46f2ad63adf5

Abby Philip reports for the Washington Post:

“President Trump said he will ban transgender people from serving in the military in any capacity, a reversal of the Obama administration decision that would have allowed transgender recruits to serve, he announced on social media on Wednesday.

Citing the need to focus on victory, Trump said that the military cannot accept the burden of higher medical costs and “disruption” that transgender troops would require.

“After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military,” Trump wrote on Twitter. “Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.”

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Read the complete report at the link.

Ah, dissing fellow Americans (particularly the vulnerable), making up bogus arguments, dividing America, promoting hate — all the things Trump stands for. And, it’s also an attempt to change the subject away from his abysmal performance as President and his ties to Russia.

Donald Trump is a much bigger threat to achieving military victory than an Army of Transgendered Soldiers could ever be.

PWS

07-26-17