"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Pulitzer Prize Winning journalist Michael Hiltzik reports for the LA Times:
Another judge slaps down Jeff Sessions for trying to punish ‘sanctuary’ cities like L.A.
Atty. Gen. Jeff Sessions just can’t win in his attempts to punish local communities for “sanctuary” laws. (Aaron P. Bernstein / Getty Images)
Atty. Gen. Jeff Sessions must be getting tired of so much winning in his campaign to punish cities and states with the temerity to challenge his attempted crackdown on immigration.
In the latest episode, U.S. Judge Manuel L. Real of Los Angeles enjoined him from withholding more than $1 million in federal law enforcement assistance funding from L.A. because the city declared itself a “sanctuary” community. Real ruled that Sessions was way out of line in attempting to add conditions to a federal grant program designed to be based strictly on a community’s population and crime rates.
Real’s injunction tracks a nationwide injunction issued in April by the U.S. 7th Circuit Court of Appeals in Chicago. In that case, brought by the city of Chicago, the appellate panel ruled 2-1 that Sessions’ actions “evince … a disturbing disregard for the separation of powers” principle enshrined in the Constitution.
The Attorney General repeatedly characterizes the issue as whether localities can be allowed to thwart federal law enforcement. That is a red herring.
7TH CIRCUIT COURT OF APPEALS
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“The power of the purse does not belong to the Executive Branch,” the majority reminded Sessions. “It rests in the Legislative Branch,” which in this case didn’t delegate to Sessions the authority to impose conditions on the law enforcement grants.
Several federal courts have slapped down Sessions’ efforts to bludgeon local communities into doing the federal government’s dirty work of immigration enforcement, so it’s proper to take a quick look at Sessions’ viewpoint.
Sessions started throwing conniptions about sanctuary communities in March 2017, a couple of months after President Trump issued an executive order calling for federal funds to be withheld from communities that he said were out to thwart immigration agents. “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States,” Trump asserted.
Trump’s order recognized that the law might constrain how the Department of Justice might act, so Sessions attempted to gin up a legal rationale. He asserted that jurisdictions across the nation were actively violating federal immigration laws, pumping undocumented immigrants back onto the streets even after their convictions for serious crimes. Sessions has cited two provisions of federal law, “Section 1373” and immigration detainers.
The first, enacted in 1996 under Bill Clinton, prohibits anyone from interfering with the exchange of information with federal authorities about the immigration status of any person. The law says merely that once local officials have that information, they can’t be stopped from trading it to the feds. Nothing in the law, however, requires local officials to collect information about the immigration status of anyone they have in custody in the first place.
“Detainers” are requests by immigration officials that local police hold immigrants who are in the U.S. illegally and suspected or accused of a serious crime for 48 hours, or until the immigration authorities can decide if they want to take further action themselves. The Congressional Research Service found in 2015 that local policies vary widely about when to honor detainers, with many honoring those for people held for serious felonies but not for suspects in minor misdemeanor cases. Some require commitments from the federal government to cover the cost of detention or even the locality’s legal liability. Demanding compliance with all detainers, some experts say, raises the possibility of federal commandeering of local resources for federal purposes, which happens to be unconstitutional.
Since Sessions began griping about sanctuary laws — many of which were enacted decades before Trump became president — federal judges have recognized consistently that localities have a legitimate interest in creating a trustful relationship between the police and the communities they serve. In communities with large populations of immigrants, that relationship can be easily destroyed if the cops become viewed as immigration agents. Residents will be reluctant to report crimes, much less help police find wrongdoers or testify against them. The result is more dangerous, not safer, communities.
In July, for example, Federal Judge John Mendez of Sacramento rejected the administration’s attempt to block three sanctuary laws enacted by the state Legislature in 2017. Mendez found that for the most part the laws fell squarely within the state’s authority to manage its own law enforcement resources and keep them from being “commandeered” by the federal government for its own purposes.
Nothing in the sanctuary laws “actively obstructs” federal officials, Mendez found; they only required state officials not to participate in federal immigration enforcement, except on their own terms. “Standing aside,” he wrote, “does not equate to standing in the way.”
Sessions hasn’t had any more success in trying to block federal funds for sanctuary cities. That’s the subject of the appeals court and Los Angeles cases. Both pertain to the Edward Byrne Memorial Justice Assistance Grant, a federal program enacted in 2005 and named after a New York police officer slain while guarding an immigrant who had agreed to testify against drug dealers.
Congress established a strict formula for the Byrne funds, requiring that 50% be disbursed each year to states in amounts proportionate to their population and crime levels, with the remaining 50% tied to states’ proportions of violent crime. The city and county of Los Angeles, which were to receive a combined $1.9 million in the current fiscal year, planned to use the money for anti-gang programs, among other things.
Before making the disbursements, however, the DOJ said that applicants would have to certify their compliance with Section 1373 and agree to other forms of cooperation with immigration officials.
The appeals court in Chicago thought little of the DOJ’s arguments. “The Attorney General repeatedly characterizes the issue as whether localities can be allowed to thwart federal law enforcement,” the majority observed. “That is a red herring.” They ridiculed Sessions for being “incredulous that localities receiving federal funds can complain about conditions attached to the distribution of those funds.” But that was just too bad, they concluded: He simply doesn’t have the authority to attach any conditions to the program, other than those dictated by the formula.
Judge Real came to the same conclusion. Sessions’ policy faced Los Angeles with “an impossible choice: Either it must certify compliance with unconstitutional and unlawful directives that impinge on the City’s sovereignty, damage community trust, and harm public safety, or it will lose congressionally authorized Byrne JAG funding.” Real wasn’t inclined to force the city to make that choice.
For a federal officer charged with upholding the law, Jeff Sessions seems to need an awful lot of reminding of what the law says. It’s time he took the lessons he’s getting from federal courts to heart.
Michael Hiltzik
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Pulitzer Prize-winning journalist Michael Hiltzik writes a daily blog appearing on latimes.com. His business column appears in print every Sunday, and occasionally on other days. As a member of the Los Angeles Times staff, he has been a financial and technology writer and a foreign correspondent. He is the author of six books, including “Dealers of Lightning: Xerox PARC and the Dawn of the Computer Age” and “The New Deal: A Modern History.” Hiltzik and colleague Chuck Philips shared the 1999 Pulitzer Prize for articles exposing corruption in the entertainment industry.
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Once upon a time, many years ago, I worked at a U.S. Department of Justice that functioned like “America’s law firm.” Every adverse decision was carefully studied by the agency, the litigator, and the Solicitor General’s Office. When the reviewing court appeared to have “the better view of the law,” or when the agency position was repeatedly rejected and there was no “Circuit split,” the rules, regulations, BIA interpretations, and even the statute sometimes were changed to adopt the Federal Courts’ “better-reasoned view of the law.”
Indeed, while serving in the Legacy INS General Counsel’s Office under then General Counsel Sam Bernsen, I remember drafting successfully enacted legislation (known as the “INS Efficiency Act”) that actually adopted into law some Federal Court decisions that had reversed INS and also tried to fashion some “legislative compromises” that we thought would pass muster in the Article IIIs. Amazingly, it was enacted into law with only minor modifications to my original draft.
Yup, it wasn’t always popular with the “operating divisions” of the INS. But, it was the job of “us lawyers” to “sell them” on why compliance with legal standards was important. And, indeed, I remember getting the essential support of “upper level management” — at that time the Commissioner, General Leonard Chapman, Jr., and his Deputy Jim Greene, certainly supporters of strong immigration enforcement, for the legislative changes our Office drafted.
In other words, we were trying to make Government work effectively within legal boundaries rather than continuing to bother the Federal Courts with untenable or legally weak positions. Folks committed to “Good Government.” Imagine that!
Nowadays, under Jeff Sessions, the DOJ has abandoned any semblance of good lawyering or legal excellence and has, with a few exceptions (possibly Bob Mueller’s operation and the FBI under Director Chris Wray), been turned into a “White Nationalist propaganda factory.” Today’s hollow semblance of a DOJ consistently presents “jaw dropping” legal positions that are both bad policy and supported by weak to nonexistent legal arguments that sometimes fail to pass the “straight fact test.”
That’s because Jeff Sessions doesn’t operate as a lawyer. No, he’s a “Minister of Propaganda” who spreads racially-driven bogus views, false narratives, and misleading statistics, then feigns shock and outrage when the “real” Federal Courts consistently “stuff” him and apply the actual law and Constitution. When your legal positions are not drawn from the law, the Constitution, input from career lawyers, and consultation with experts in the field, but rather taken from “cue cards” prepared by widely discredited White Nationalist restrictionist groups, the results are bound to be ugly.
The only surprising thing is that such a stunningly biased and unqualified individuals as Jeff Sessions has been given the opportunity to destroy the integrity of the U.S. Department of Justice and to make it a subservient tool of his attack on American values and our entire justice system. Sen. Liz Warren tried to tell ’em. But they wouldn’t listen. Now, Jeff Sessions is dragging all of America down in the muck with him.
Mr. Sandoval-Moshenberg, who represented the plaintiffs, said that many parents were evaluated for “credible fear” after having their children removed, but before they were told where the children had been taken. He said his team submitted evidence showing that, during the interviews, the parents were “out of their minds with trauma, focused solely on the well-being and the whereabouts of their kids.”
In one piece of evidence included in the case, a recording of an immigration judge questioning a mother about her asylum claim, the mother can be heard crying too hard to answer the judge’s questions and says that she feels sick, Mr. Sandoval-Moshenberg said. After a few minutes, he said, the judge affirms an asylum officer’s finding that the woman’s fear of returning to her home country is not credible and asks that she be taken to see a doctor.
. . . .
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Read Caitlin’s full article concerning the recent proposed settlement at the above link.
Obvious question: Why would somebody like Jeff Sessions be given authority over a “court system” that is supposed to insure Due Process for asylum applicants? That’s even worse than having the fox guard the henhouse! The results are as horrible and unlawful as they are predictable.
A June photo released by US Customs and Border Protection (CBP) shows undocumented people at the central processing center in McAllen, Texas. Photograph: Handout/US Customs and Border Protection/AFP/Getty Images
All day and night they listened to the wailing of hungry children.
Here, in a freezing immigration detention facility somewhere in the Rio Grande valley of south Texas, adults and children alike were fainting from dehydration and lack of food.
Sleep was almost impossible; the lights were left on, they had just a thin metallic sheet to protect against the cold and there was nothing to lie down on but the hard floor.
This is the account of Rafael and Kimberly Martinez, who, with their three-year-old daughter, had made the dangerous trek from their home on the Caribbean coast of Honduras to the US border to ask for political asylum.
“The conditions were horrible, everything was filthy and there was no air circulating,” Kimberly Martinez told the Guardian of the five days the family spent cooped up in one facility they – like tens of thousands before them – referred to as “la hielera”: the icebox. Her husband added: “It’s as though they wanted to drain every positive feeling out of us.”
They knew, from following the news, that their ordeal of escaping gang violence back home and trekking across desert terrain at the height of summer would not end when they reached the United States.
What they did not expect, though, were days of hunger, separation and verbal abuse that they said they endured at the hands of federal immigration officials.
‘Caged up like animals’
All they were given to eat, they said, were half-frozen bologna sandwiches, served at 10 in the morning, five in the afternoon and two in the morning, and single sugar cookies for their daughter. What water they were given had a strong chlorine taste – a common complaint – and upset their stomachs.
The Martinezes (not their real name) were among dozens of asylum-seekers the Guardian interviewed in the border city of McAllen recently after they secured their provisional release from federal custody – with black electronic monitors fastened tightly around their ankles – and just before they continued their journeys by bus to the homes of US-based sponsors to await court hearings on their statuses.
The Guardian sat in with a team of volunteer doctors and nurses administering emergency medical care and listened as family after family gave jarringly consistent accounts of what they described as grim conditions in a variety of border detention facilities – conditions that have grown only grimmer since the advent of Donald Trump’s “zero tolerance” immigration policies.
Activists in Los Angeles protest Donald Trump’s immigration policies, 30 June. Photograph: Mike Nelson/EPA
Officials said the allegations made by families about their experiences in detention did not equate with what they knew to be common practice and they insisted detainees were treated with dignity and respect.
The “hieleras”, or iceboxes, asylum-seekers said, were overcrowded, unhygienic, and prone to outbreaks of vomiting, diarrhea, respiratory infections and other communicable diseases. Many complained about the cruelty of guards, who they said would yell at children, taunt detainees with promises of food that never materialized and kick people who did not wake up when they were expected to.
At regular intervals, day and night, the Martinezes, and many others, said guards would come banging on the walls and doors and demand that they present themselves for roll call.
If they talked too loudly, or if children were crying, the guards would threaten to turn the air temperature down further. When the Martinezes gathered with fellow detainees to sing hymns and lift their spirits a little, the guards would taunt them, or ask aggressively: “Why did you bother coming here? Why didn’t you stay in your country?”
“Many of these agents were Latinos, like us, but they were people without morals,” Rafael Martinez said, his voice choking with tears. “There we were, caged up like animals, and they were laughing at us.”
. . . .
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Read the rest of Gumbel’s shocking, disturbing, and downright infuriating report at the above link. If any other country treated vulnerable individuals seeking to exercise their legal rights to claim refuge under the Geneva Convention in this way we would call it just what it is — extreme cruel and inhuman treatment amounting to torture. Yet, somehow, the architects of this abhorrent, racist, wasteful, and dehumanizing system — Trump, Sessions, Miller, Nielsen, and others — remain free and largely unaccountable.
They even have the absolute audacity to whine and complain when Federal Courts occasionally call them out for their gross contempt for the law and Constitution and force them to take corrective action — which they do grudgingly, disrespectfully, without apology, and ineffectively.
Just today, “Gonzo Apocalypto” was sputtering about Federal Courts issuing nationwide injunctions against some of his corrupt, illegal, unconstitutional, and immoral practices. What a totally disingenuous jerk! I don’t remember Ol’ Gonzo complaining when a single Federal Judge in Texas, Judge Hanen, tanked Obama’s “DAPA” program that would have helped hundreds of thousands of deserving parents of US citizens and green card holders (and also helped reduce the Immigration Court backlog). Heck, Gonzo even tried to use that decision as the bogus justification for terminating DACA, a step that even Judge Hanen is not very anxious to take. Unlike Gonzo, Judge Hanen at least understands that DACA individuals have substantial equities in the United States that Congress would be wise to recognize through legislation.
Undoubtedly, there is a need for some detention of dangerous individuals or some so-called “flight risks” pending the completion of immigration proceedings. But, it is only a minuscule fraction of the number now being unnecessarily and wastefully detained.
And, there is seldom any reason whatsoever for detaining women and children who have passed the credible fear process and seek asylum. Work with the private bar to get them represented, help them understand the system, including their obligations to appear at court and when summoned by DHS, and work with the U.S. Immigration Judges, the private bar, and the DHS Offices of Chief Counsel to get these cases scheduled in a reasonable manner.
For every case that DHS seeks “priority processing,” they should be required to offer prosecutorial discretion or “PD” to a “lower priority” case. That would eliminate the current Government practice of “Aimless Docket Reshuffling” (“ADR”), keep the court backlogs from growing out of control, and insure timely and fair processing of recent arrivals. The DHS would also be “incentivized” to agree or stipulate to well-documented, clearly grantable asylum cases, as they are supposed to do. That’s how the system could and should work pending enactment of more comprehensive immigration reform.
Additionally, individuals who satisfy “credible fear” should be offered an opportunity to apply first to the USCIS Asylum Office, before the case is sent to Immigration Court, since that office would already have a “preliminary workup” of the case.
There are lots of ways of improving this system and making it work better for the asylum applicants, their lawyers, and the DHS. But, they aren’t going to happen as long as irresponsible, biased, ethically and morally challenged “White Nationalist” officials such as Trump, Sessions, & Nielsen are in charge.
As many as 1,000 parents separated from their children are getting a second chance to stay in the US
In a huge reversal, the Trump administration is giving families another chance to claim asylum — and even some parents who’ve already been deported might be eligible.
A Honduran father and his 6-year-old son worship during Sunday mass on September 9, 2018, in Oakland, California. They fled their country seeking asylum in the US.Mario Tama/Getty Images
The Trump administration has just agreed to give parents who were separated from their children at the US-Mexico border earlier this year a second chance to make asylum claims in the US.
The Department of Justice has negotiated an agreement that covers three lawsuits filed against the government over the family-separation policy. Parents in the US who’d been ordered deported would get another chance to pass an interview demonstrating a “credible fear” of persecution — the first step in the asylum process.
If either the parent or the child passes the screening interview, families will be allowed to apply for asylum together. Some parents who don’t pass will be allowed to remain with their children in the US while the children’s cases are adjudicated.
And in some cases, the government is even willing to consider reopening cases for parents who were already deported from the US.
The agreement covers three lawsuits: Ms. L v. ICE, which forced the government to reunite separated families this summer; M- M- M- v. ICE, brought on behalf of children separated from parents; and Dora v. Sessions, a lawsuit from parents who had failed their initial asylum screenings because they were distraught after weeks of separation from their children.
If the agreement is approved by the federal judges overseeing the three lawsuits, it will result in a second chance for hundreds of parents. Muslim Advocates and the Legal Aid Justice Center, who represented the plaintiffs in Dora v. Sessions, believe it could give “well over 1,000” parents another chance at an asylum claim. And for many families, it will eliminate (or at least defer) the impossible choice between giving up a child’s legal case, and separating the family again by keeping the child in the US while the parent is deported.
Separating families made it much harder for parents to seek asylum
Under the Trump administration’s family separation policy, a parent who wanted to seek asylum in the US had one chance: to pass a “credible fear” screening interview with an asylum office.
If a parent passed the credible fear screening, he or she was given a chance to seek asylum before an immigration judge; if the parent failed, he or she could appeal the decision to an immigration judge, with much worse odds. Losing the appeal, or agreeing to drop the case, led to an order of deportation.
Generally, most asylum seekers pass their credible fear screenings. But evidence suggests that parents who were separated from their children often failed their interviews. Parents were often so consumed by grief over their separation from their children that they weren’t able to answer asylum officers’ questions fully and effectively, according to the lawsuit filed in Dora v. Sessions.
“Explaining the basis for an asylum claim is very difficult under the best of circumstances,” said one source familiar with the interview process but not professionally authorized to speak on the record. “When someone is a) detained, b) almost certainly unrepresented, and c) beside herself with fear and desperation because of having had her child taken from her,” the source continued, “it is almost impossible.”
By the time nearly 2,000 parents and children were reunited in July (thanks to Judge Dana Sabraw’s rulings in the Ms. L case ordering family reunification), the overwhelming majority of parents had already lost their cases and been ordered deported. But their children — who’d been placed on a separate legal track as “unaccompanied alien children” after being separated from their parents — often still had ongoing cases and a real chance of winning some form of legal status in the US.
So upon being reunited, hundreds of families were faced with the choice between returning to their home country together (and facing possible peril or persecution), and keeping the child in the US in hopes of winning asylum or another form of legal status — and separating the family anew. (Some parents alleged they weren’t even given this chance, and were coerced into withdrawing their children’s legal claims — and forcibly reseparated without warning if they refused to comply.)
None of this would have happened if families hadn’t been separated to begin with. Under normal circumstances, if either a parent or a child passed an asylum interview, the government would allow them both to file asylum claims. And obviously, parents who weren’t traumatized by family separation might have had a better chance with their interviews. But simply reuniting the family didn’t solve the problem.
The government is agreeing to give reunited families the same chance they’d had if they’d never been separated
Here is what the agreement proposed by the government would actually do, if approved:
Parents who passed their initial “credible fear” interviews for asylum will be allowed to continue; this agreement doesn’t change those cases.
Parents who had lost their cases and been ordered deported will be given a full review to reassess whether or not they have a credible fear of persecution. This review will include a second interview for “additional fact-gathering” — during which a lawyer can be present (or can dial in by phone). Parents will be allowed to do this even if they didn’t ask for a credible fear interview when they were first arrested.
Parents who fail their credible fear screenings will be allowed to remain in the US and apply for asylum if their child passes his or her credible fear screening. The reverse is also true: If a child fails her asylum screening but the parent passes his, both parent and child will be allowed to apply for asylum. This is the way things normally work when families are apprehended together; by instituting it now, the government is essentially wiping away the legal side effects of family separation.
Parents who aren’t eligible for a credible fear interview because they had been deported before and were returning will still be allowed to avoid deportation if they meet a higher standard (“reasonable fear”) and qualify for something called “withholding of removal.” Even if they fail that standard, they will be allowed to stay in the US while their children are going through their asylum cases.
Parents who have already been deported will not have their cases automatically reviewed by the government. However, the plaintiffs in these lawsuits will have 30 days to present evidence to the government that particular parents should be allowed to return, and the government will consider those requests. (The agreement doesn’t make it clear whether deported parents will have their own cases reopened, or whether they will solely be allowed to return to stay with their children while the children’s legal cases are ongoing.)
If the agreement is approved, it will officially send the legal fight over family separation into its endgame phase. While hundreds of parents and children remain separated, the legal fight over reunification is largely about who’s responsible for carrying out various parts of the government’s reunification plan; the new agreement would set a similar plan up for the legal due process of parents and children making claims to stay in the US.
It would almost certainly run into similar implementation obstacles to the reunification plan, but it would set expectations that the government would provide this process by default, rather than moving forward with deportation.
The Trump administration is never going to wholly be able to erase the consequences of its decision to separate families as a matter of course. But it is now agreeing to give up the legal advantages that it accrued by separating parents’ and children’s cases — and forcing parents to go through interviews with life-or-death stakes without knowing when or whether they’d ever see their children again.
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I’ve been saying it over and over again. Why not just do it right, provide full Due Process, and follow the law?
Not only are the policies being promoted by Sessions, Trump, and the rest of the GOP White Nationalists unconstitutional, illegal, vile, and immoral, they are totally wasteful of limited Government resources (particularly in a time of GOP-fueled budget deficits) and unnecessarily tie up the Federal Courts. Contrary to Jeff Sessions’s false narratives, no court system anywhere has unlimited time for all the nonsense that the Government could potentially pursue. When common sense and sane prosecutorial discretion lose out, they whole system suffers.
Think what might have happened if, instead of wasting time and money on illegal family separation, unnecessary criminal prosecutions, and bending protection law out of shape, the Government had done the right thing and spent the money:
Working with NGOs and legal aid groups to release folks in locations where they could get legal assistance, virtually guaranteeing their appearance in Immigration Court;
Agreeing to grant the many domestic violence and other types of gang-related cases that could have been granted after proper preparation and documentation under a proper application of the law (before Sessions messed it up);
Taking all of the cases of long-term law-abiding residents off overloaded Immigration Court dockets so that the real contested asylum cases could be given priority without denying anyone Due Process or moving everything else back through “Aimless Docket Reshuffling” (“ADR”).
Any “bad guys,” or “true economic migrants” could have been given full hearings, denied, and removed. But, totally contrary to Sessions’s racist blather, most of the folks arriving are actually legitimate refugees. They could have been granted status and allowed to go out and work and study to make America better. I’ve found few individuals (including many native-born US citizens) more grateful and willing to work hard and contribute than those granted asylum.
The money spent on wasteful litigation and needless, cruel and inhuman, detention could instead have been used;
to establish a viable overseas refugee screening program in the Northern Triangle;
working with other countries to share resettlement responsibilities;
and trying to correct the situations in the Northern Triangle which gave rise to the refugee flows in the first place.
Sadly, this is hardly the first, and probably by no means the last, time that the US Government has been forced to reprocess large numbers of asylum seekers because of a failure to follow Due Process and do the right thing in the first place. Just check out the history of the ABC v. Thornburgh litigation and settlement (a case I was involved in during my time in the “Legacy INS” General Counsel’s Office).
Indeed, the Trump scofflaws are “doubling down” on every failed policy fo the past. They actually are at it again with their bone-headed proposal to thumb their collective noses at Judge Dolly Gee and withdraw from the Flores settlement and set up a “Kiddie Gulag” by regulation. Good luck with that. The Trump Scofflaws are already wasting your taxpayer money on more “tent cities in the Kiddie Gulag” that they almost certainly will be enjoined from using at some point. Then, cooler heads will prevail and we’ll undoubtedly have a “Flores II” settlement.
Also, compare the real role of immigration lawyers in enforcing the law and holding Goverment scofflaws like Sessions and Nielsen accountable with the totally bogus picture painted by Sessions in his false, unethical, and highly inappropriate speech to US Immigration Judges this week. Truth is exactly the opposite of nearly everything that Jeff Sessions says.
Our country can’t afford the scofflaw conduct, inhumanity, immorality, and wastefulness of Trump, Sessions, Miller and their racist White Nationalist cabal. Vote for regime change this Fall!
It’s not just FEMA: ICE quietly got an extra $200 million
By Tal Kopan, CNN
As a potentially catastrophic hurricane bears down on the East Coast of the US, the shifting of $10 million from FEMA’s operating budget to fund immigration detention and deportations is drawing condemnation from Democrats.
But that’s a drop in the bucket.
The Trump administration this summer quietly redirected $200 million from all over the Department of Homeland Security to Immigrations and Customs Enforcement, despite repeated congressional warnings of ICE’s “lack of fiscal discipline” and “unsustainable” spending.
The Department of Homeland Security asked for the money, according to a document made public this week by Oregon Sen. Jeff Merkley. Of the $200 million, the document says $93 million will go to immigrant detention, a 3% budget increase that will fund capacity for an additional 2,300 detainees; and $107 million for “transportation and removal,” or deportations, a 29% budget increase.
The move comes as the Trump administration has pursued an aggressive immigration agenda, ramping up arrests of undocumented immigrants and deportations.
In addition to this summer’s widely condemned move to separate families at the border, the administration has drawn criticism for arresting a far greater rate of noncriminal undocumented immigrants and seeking to detain them much longer. On Tuesday, the administration announced it would tripling the size of an emergency temporary tent facility to house more immigrant children.
The additional $200 million would put ICE’s budget for detention and transportation at more than $3.6 billion.
Cruel and inhumane enforcement and detention is also wasteful, particularly at a time of bloated budget deficits, thanks to unnecessary GOP tax cuts for the rich. It appears likely that the Trump Administration’s plans for long-term detention of children will be found illegal. Also, the irresponsible movement of money and lack of accountability within DHS is contemptuous of Congressional oversight.
This Administration’s immigration policies are totally out of control.
We need regime change, starting with meaningful Congressional oversight. It’s not going to happen unless and until the GOP is ousted.
Defendants respectfully object to the appointment of former immigration judge (“IJ”) Carol King as the Flores independent monitor. As an initial matter, while Defendants agree that former IJ King has significant experience with immigration law, Defendants object because former IJ King appears to have little or no direct experience with U.S. Customs and Border Protection (“CBP”) or U.S. Immigration and Customs Enforcement (“ICE”) holding and detention facilities themselves, or more specifically with the conditions at such facilities, the management of such facilities, or the legal standards applicable to such facilities, which go beyond substantive immigration law.
Moreover, former IJ King has no demonstrated background in overseeing complex litigation or compliance with consent decrees. Immigration judges have limited powers delegated to them by regulation to decide individual cases, and only for matters designated to them under the Immigration and Nationality Act. 8 C.F.R. § 1003.10(b). This is very different from the substantial and complex task of overseeing the operations of multiple agencies as is required in the present matter. Given this lack of experience, Defendants disagree that former IJ King would have only a “minimal learning curve” in undertaking to serve as an independent monitor related to the issues in the Court’s June 27, 2017 order.
Defendants also object to the appointment of former IJ King on the ground that she has published a writing to promote her law practice that gives the appearance of a very real and serious bias against the defendants. These sentiments, expressed publicly, at the very least create the appearance that former IJ King would not carry out her duties as special master with the type of impartiality that is required for a quasi-judicial role. These statements criticize a defendant in this matter – the Attorney General – and address policies relating to children subject to the Flores Agreement.
Specifically, on her law office web site, former IJ King states in the “Introduction to Carol King Law Office” that “[t]he current wave of attacks on immigrants [that] has clearly been manufactured . . . to sow division and grab power” includes “those who have been so viciously attacked . . . immigrant parents and young children.” Introduction to Carol King Law Office, July 9, 2018, available at: https://carolkinglawoffice.com/2018/07/09/hello-world/. Former IJ King further states that “[t]he lack of any ethical, moral or compassionate compass reflected in the current administration is more disturbing than anything in recent history[,]” and that the “current actions on the part of the President, Attorney General and administration, which reflect only a commitment to power and to hatred, hurt me so deeply.” Id.
To be sure, there is nothing improper about holding strong views on government policies, but public statements such as these are not consistent with performing the quasi-judicial function of a special master, where officers must meticulously avoid “[c]onduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge” because it “undermines public confidence in the judiciary.” ABA Model Rules of Judicial Conduct 1.2, Comment [3]; see id. Comment [5] (“[t]he test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge . . . engaged in other conduct that reflects adversely on the judge’s . . . impartiality”). The published criticism of a named defendant, and of government policies related to children who are subject to the Flores Agreement, as an introduction to her law practice do not, Defendants submit, meet this exacting standard. A reasonable person could question, in light of such statements, whether former IJ King will be impartial in evaluating compliance with this Court’s orders for facilities that are currently operated by Defendants CBP and ICE, who are agencies of that same administration against which former IJ King has a clearly and publicly expressed bias. Defendants therefore object to the appointment of former IJ King as an independent monitor in this case.
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Let’s get this straight! The DOJ Attorneys who filed this with Judge Gee represent and work for a named defendant Jeff Sessions who:
Unapologetically masterminded the “zero tolerance” policy that resulted in the unconstitutional separation of children and the intentional violation of Judge Gee’s earlier order in the case;
After having his legal arguments soundly rejected by Judge Gee is actively trying to “back door” his contemptuous behavior by proposing unlawful regulations that any reasonable person would know would be “dead on arrival;”
This week told supposedly “fair and impartial” judges who work for him, without any supporting evidence, that “the vast majority of the current asylum claims are not valid under the law;”
Knowingly and intentionally misrepresented the DOJ’s own statistics relating to asylum grants on the merits to understate the grant rates to make them appear to support his false anti-asylum narrative;
Warned Immigration Judges not to be “sympathetic” toward asylum applicants appearing before them in Immigration Court;
Intentionally created a false narrative linking asylum policy to Southern Border arrivals that ignores the majority of reliable studies showing that refugee producing conditions in foreign countries, not changes in US policy, drive individuals to seek refuge;
In the words of AILA, before Immigration Judges expressed his “disdain for lawyers who take a solemn oath to uphold the law” and showed “a complete disregard for the role of independent judges in overseeing our adversarial system;”
In front of a group of Immigration Judges referred to attorneys representing individuals asylum cases (many serving pro bono or “low bono”) as “dirty lawyers;”
Promoted the role of “judges” as enforcement officers rather than fair, impartial, independent adjudicators;
Unethically acted in a quasi-judicial capacity in Matter of A-B- after publicly prejudging the substantive issue in the case during a radio interview.
So, how do these DOJ lawyers, with straight faces and in compliance with their ethical duties, have the audacity to argue the ABA Model Rules of Judicial Conduct against Judge King (who does not currently serve in any judicial capacity) when their own boss and named defendant is in violation of that provision (and also the EOIR’s own rules of judicial conduct). No “reasonable person” would believe that Jeff Sessions, in light of his public antipathy to migrants, asylum seekers, and their lawyers, and his clear, highly inappropriate favoritism for DHS Enforcement could properly and ethically run the Immigration Courts and actually act in a quasi-judicial capacity in individual cases! Yet, he is still doing both, to the detriment of Due Process and the rule of law.
Jeff Sessions has total contempt for the Constitution, the law, and courts of every type (both the ones he controls and the ones he appears before through DOJ attorneys). At some point, the Article IIIs, if they wish to maintain their position as a “separate but equal Branch” are going to have to take on the biased, contemptuous, and overtly unethical performance of Attorney General Sessions head on. Otherwise, he will run right over them as he has the US Immigration Courts and the Constitutional guarantee of Due Process.
Sophia Genovese, Sept. 10, 2018 – “US asylum law is nuanced, at times contradictory, and ever-changing. As brief background, in order to be granted asylum, applicants must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that they are unable or unwilling to return to, or avail themselves of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2). Attorneys constantly grapple with the ins and outs of asylum law, especially in light of recent, dramatic changes to asylum adjudication.
Even with legal representation, the chances of being granted asylum are slim. In FY 2017, only 45% asylum-seekers who had an attorney were ultimately granted asylum. Imagine, then, an asylum-seeker fleeing persecution, suffering from severe trauma, and arriving in a foreign land where he or she suddenly has to become a legal expert in order to avoid being sent back to certain death. For most, this is nearly impossible, where in FY 2017, only 10% of those unrepresented successfully obtained asylum.
It is important to remember that while asylum-seekers have a right to obtain counsel at their own expense, they are not entitled to government-appointed counsel. INA § 240(b)(4)(A). Access to legal representation is critical for asylum-seekers. However, most asylum-seekers, especially those in detention, go largely unrepresented in their asylum proceedings, where only 15% of all detained immigrants have access to an attorney. For those detained in remote areas, that percentage is even lower.
Given this inequity, I felt compelled to travel to a remote detention facility in Folkston, GA and provide pro bono legal assistance to detained asylum-seekers in their bond and parole proceedings. I travelled along with former supervisors turned mentors, Jessica Greenberg and Deirdre Stradone, Staff Attorneys at African Services Committee(ASC)/Immigrant Community Law Center (ICLC), along with Lucia della Paolera, a volunteer interpreter. Our program was organized and led by the Southern Poverty Law Center’s Southeast Immigrant Freedom Initiative (SIFI). SIFI currently only represents detained asylum-seekers in their bond and parole proceedings in order to assist as many folks as possible in obtaining release. Their rationale is that since bond and parole representation take up substantially less time than asylum representation, that they can have a far greater impact in successfully obtaining release for several hundred asylum-seekers, who can hopefully thereafter obtain counsel to represent them in their asylum proceedings.
Folkston is extremely remote. It is about 50 miles northwest of Jacksonville, FL, and nearly 300 miles from Atlanta, GA, where the cases from the Folkston ICE Processing Center are heard. Instead of transporting detained asylum-seekers and migrants to their hearings at the Atlanta Immigration Court, Immigration Judges (IJs) appear via teleconference. These proceedings lack any semblance to due process. Rather, through assembly-line adjudication, IJs hear several dozens of cases within the span of a few hours. On court days, I witnessed about twenty men get shuffled into a small conference room to speak with the IJ in front of a small camera. The IJ only spends a few minutes on each case, and then the next twenty men get shuffled into the same room. While IJs may spend a bit more time with detainees during their bond or merits hearings, the time spent is often inadequate, frequently leading to unjust results.
Even with the tireless efforts of the Staff Attorneys and volunteers at SIFI, there are simply too few attorneys to help every detainee at the Folkston ICE Processing Center, which houses almost 900 immigrants at any given time, leaving hundreds stranded to navigate the confusing waters of immigration court alone.
During initial screenings, I encountered numerous individuals who filled out their asylum applications on their own. These folks try their best using the internet in the library to translate the application into their native language, translate their answers into English, and then hand in their I-589s to the IJ. But as any practitioner will tell you, so much more goes into an asylum application than the Form I-589. While these asylum seekers are smart and resourceful, it is nearly impossible for one to successfully pursue one’s own asylum claim. To make matters worse, if these asylum-seekers do not obtain release from detention ahead of their merits hearing where an IJ will adjudicate their asylum claim, they will be left to argue their claims in the Atlanta Immigration Court, where 95%-98% of all asylum claims are denied. For those detained and/or unrepresented, that number is nearly 100%.
Despite the Attorney General’s most recent comments that lawyers are not following the letter of the law when advocating on behalf of asylum-seekers, it is clear that it is the IJs, [tasked with fairly applying the law, and DHS officials, tasked with enforcing the law,] who are the ones seeking to circumvent the Immigration and Nationality Act (INA). Throughout the Trump era, immigration attorneys have faithfully upheld asylum law and have had to hold the government accountable in its failure to apply the law fairly. Good lawyers, using all of their talents and skill, work every day to vindicate the rights of their clients pursuant to the INA, contrary to Sessions’ assertions.
But more importantly, asylum-seekers have suffered from serious human rights abuses and merit protection under our laws. Their cases are not denied because they are not bona fide. Their cases are not denied because they do not qualify as refugees under the INA. Indeed, most of these asylum-seekers were found to possess a credible fear of return upon their initial apprehension. Through a combination of lack of access to counsel, unfair and uneven adjudication by IJs, and impermissible interference by the Attorney General, credible and bona fide cases are frequently denied.
We’ve previously blogged about the due process concerns in immigration courts under Sessions’ tenure. Instead, I want to highlight the stories of some of the asylum-seekers I met in Folkston. If these individuals do not obtain counsel for the bond or parole proceedings, and/or if they are denied release, they will be forced to adjudicate their claims in the Atlanta Immigration Court where they will almost certainly be ordered removed. It is important that we understand who it is that we’re actually deporting. Through sharing their stories, I want to demonstrate to others just how unfair our asylum system is. Asylum was meant to protect these people. Instead, we treat them as criminals by detaining them, do not provide them with adequate access to legal representation, and summarily remove them from the United States. Below are their stories:
Twenty-Five Year Old From Honduras Who Had Been Sexually Assaulted on Account of His Sexual Orientation
At the end of my first day in Folkston, I was asked to inform an individual, Mr. J-, that SIFI would be representing him in his bond proceedings. He’s been in detention since March 2018 and cried when I told him that we were going to try and get him out on bond.
Mr. J- looks like he’s about sixteen, and maybe weighs about 100 pounds. Back home in Honduras, he was frequently ridiculed because of his sexual orientation. Because he is rather small, this ridicule often turned into physical assault by other members of his community, including the police. One day when Mr. J- was returning from the store, he was stopped by five men from his neighborhood who started berating him on account of his sexual orientation. These men proceeded to sexually assault him, one by one, until he passed out. These men warned Mr. J- not to go to the police, or else they would find him and kill him. Mr. J- knew that the police would not help him even if he did report the incident. These men later tracked down Mr. J-’s cellphone number, and continued to harass and threaten him. Fearing for his life, Mr. J- fled to the United States.
Mr. J-’s asylum claim is textbook and ought to be readily granted. However, given Sessions’ recent unilateral change in asylum law based on private acts of violence, Mr. J- will have to fight an uphill battle to ultimately prevail. See Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). If released on bond, Mr. J- plans to move in with his uncle, a US citizen, who resides in Florida. Mr. J-’s case will then be transferred to the immigration court in Miami. Although the Immigration Court in Miami similarly has high denial rates, where nearly 90% of all asylum claims are ultimately denied, Mr. J- will at least have a better chance of prevailing there than he would in Atlanta.
Indigenous Mayan from Guatemala Who Was Targeted on Account of His Success as a Businessman
During my second day, I met with an indigenous Mayan from Guatemala, Mr. S-. He holds a Master’s degree in Education, owned a restaurant back home, and was the minister at his local church. He had previously worked in agriculture pursuant to an H-2B visa in Iowa, and then returned to Guatemala when the visa expired to open his business.
He fled Guatemala earlier this year on account of his membership in a particular social group. One night after closing his restaurant, he was thrown off his motorcycle by several men who believes were part of a local gang. They beat him and threatened to kill him and his family if he did not give them a large sum of money. They specifically targeted Mr. S- because he was a successful businessman. They warned him not to go to the police or else they would find out and kill him. The client knew that the police would not protect him from this harm on account of his ethnic background as an indigenous Mayan. The day of the extortionists’ deadline to pay, Mr. S- didn’t have the money to pay them off, and was forced to flee or face a certain death.
Mr. S- has been in immigration detention since March. The day I met with him at the end of August was the first time he had been able to speak to an attorney.
Mr. S-’s prospects for success are uncertain. Even prior to the recent decision in Matter of A-B-, asylum claims based on the particular social group of “wealthy businessmen” were seldom granted. See, e.g., Lopez v. Sessions, 859 F.3d 464 (7th Cir. 2017); Dominguez-Pulido v. Lynch, 821 F.3d 837, 845 (7th Cir. 2016) (“wealth, standing alone, is not an immutable characteristic of a cognizable social group”); but see, Tapiero de Orejuela v. Gonzales, 423 F.3d 666 (7th Cir. 2005) (confirming that although wealth standing alone is not an immutable characteristic, the Respondent’s combined attributes of wealth, education status, and cattle rancher, satisfied the particular social group requirements). However, if Mr. S- can show that he was also targeted on account of his indigenous Mayan ancestry, he can perhaps also raise an asylum claim based on his ethnicity. The combination of his particular social group and ethnicity may be enough to entitle him to relief. See, e.g., Ordonez-Quino v. Holder, 760 F.3d 80, 90 (1st Cir. 2014) (Respondent demonstrated that his “Mayan Quiché identity was ‘at least one central reason’ why he” was persecuted).
As business immigration attorneys may also point out, if Mr. S- can somehow locate an employer in the US to sponsor him, he may be eligible for employment-based relief based on his Master’s degree, prior experience working in agriculture, and/or his business acumen on account of his successful restaurant management. Especially if Mr. S- is not released on bond and forced to adjudicate his claims in the Atlanta Immigration Court where asylum denial rates are high, his future attorney may also want to explore these unorthodox strategies.
Indigenous Mam-Speaking Guatemalan Persecuted on Account of His Race, Religion, and Particular Social Group
My third day, I met with Mr. G-, an indigenous Mam from Guatemala. Mr. G- is an incredibly devout Evangelical Christian and one of the purest souls I have ever met. He has resisted recruitment by rival gangs in his town and has been severely beaten because of his resistance. He says his belief in God and being a good person is why he has resisted recruitment. He did not want to be responsible for others’ suffering. The local gangs constantly assaulted Mr. G- due to his Mam heritage, his religion, and his resistance of them. He fled to the US to escape this persecution.
Mr. G- only speaks Mam, an ancient Mayan dialect. He does not speak Spanish. Because of this, he was unable to communicate with immigration officials about his credible fear of return to his country upon his initial arrival in November 2017. Fortunately, the USCIS asylum officer deferred Mr. G-’s credible fear interview until they could locate a Mam translator. However, one was never located, and he has been in immigration detention ever since.
August 29, 2018, nine months into his detention, was the first time he was able to speak to an attorney through an interpreter that spoke his language. Mr. G- was so out of the loop with what was going on, that he did not even know what the word “asylum” meant. For nine months, Mr. G- had to wait to find out what was going on and why he was in detention. My colleague, Jessica, and I, spoke with him for almost three hours. We could not provide him with satisfactory answers about whether SIFI would be able to take his case, and when or if he would be let out of detention. Given recent changes in the law, we couldn’t tell him if his asylum claim would ultimately prevail.
Mr. G- firmly stated that he will be killed if he was forced to go back to Guatemala. He said that if his asylum claim is denied, he will have to put his faith in God to protect him from what is a certain death. He said God is all he has.
Even without answers, this client thanked us until he was blue in the face. He said he did not have any money to pay us but wanted us to know how grateful he was for our help and that he would pray for us. Despite the fact that his life was hanging in the balance, he was more concerned about our time and expense helping him. He went on and on for several minutes about his gratitude. It was difficult for us to hold back tears.
Mr. G- is the reason asylum exists, but under our current framework, he will almost certainly be deported, especially if he cannot locate an attorney. Mr. G- has an arguable claim under Ordonez-Quino v. Holder, on account of his Mam heritage, and an arguable claim on account of his Evangelical Christianity, given that Mr. G-’s persecution was compounded by his visible Mam ethnicity and vocal Evangelical beliefs. His resistance to gang participation will be difficult to overcome, though, as the case law on the subject is primarily negative. See, e.g., Bueso-Avila v. Holder, 663 F.3d 934 (7th Cir. 2011) (finding insufficient evidence that MS-13 targeted Petitioner on account of his Christian beliefs, finding instead that the evidence supported the conclusion that the threats were based on his refusal to join the gang, which is not a protected ground). Mr. G-’s low prospects of success are particularly heart-wrenching. When we as a country fail to protect those seeking refuge from persecution, especially those fleeing religious persecution, we destroy the very ideals upon which this country was founded.
Twenty-Year Old Political Activist From Honduras, Assaulted by Military Police on Account of His Political Opinion
I also assisted in the drafting of a bond motion for a 20 year-old political activist from Honduras, Mr. O-, who had been severely beaten by the military police on account of his political opinion and activism.
Mr. O- was a prominent and vocal member of an opposition political group in Honduras. During the November 2017 Honduran presidential elections, Mr. O- assisted members of his community to travel to the polling stations. When election officials closed the polls too early, Mr. O- reached out to military police patrolling the area to demand that they re-open the polling stations so Hondurans could rightfully cast their votes. The military police became angry with Mr. O-’s insistence and began to beat him by stomping and kicking him, leaving him severely wounded. Mr. O- reported the incident to the police, but was told there was nothing they could do.
A few weeks later, Mr. O- was specifically targeted again by the military police when he was on his way home from a political meeting. The police pulled him from his car and began to beat him, accusing him of being a rioter. He was told to leave the country or else he would be killed. He was also warned that if he went to the national police, that he would be killed. Fearing for his life, Mr. O- fled to the US in April 2018 and has been in detention ever since.
SIFI was able to take on his bond case in August, and by the end of my trip, the SIFI team had submitted his request for bond. Since Mr. O-’s asylum claim is particularly strong, and because he has family in the US, it is highly likely that his bond will be granted. From there, we can only hope that he encounters an IJ that appropriately follows the law and will grant him asylum.”
(The author thanks Jessica Greenberg and Deirdre Stradone for their constant mentorship as well as providing the author the opportunity to go to Folkston. The author also thanks Lucia della Paolera for her advocacy, passion, and critical interpretation assistance. Finally, the author expresses the utmost gratitude to the team at SIFI, who work day in and day out to provide excellent representation to the detained migrants and asylum-seekers detained at Folkston ICE Processing Center.)
Photos from my trip to Folkston, GA:
The Folkston ICE Processing Center.
Downtown Folkston, GA.
Volunteers from Left to Right: Sophia Genovese (author), Deirdre Stradone (Staff Attorney at African Services Committee), Jessica Greenberg (Staff Attorney at ASC/ICLC), and Lucia della Paolera (volunteer interpreter).
Many thanks to the incomparable Dan Kowalski over at LexisNexis for forwarding this terrific and timely piece! These are the kinds of individuals that Jeff Sessions would like Immigration Judges to sentence to death or serious harm without Due Process and contrary to asylum and protection law.
As Sophia cogently points out, since the beginning of this Administration it has been private lawyers, most serving pro bono or “low bono,” who have been courageously fighting to uphold our Constitution and the rule of law from the cowardly scofflaw White Nationalist attacks by Trump, Sessions, Miller, Nielsen, and the rest of the outlaws. In a significant number of cases, the Article III Federal Courts have agreed and held the scofflaws at least legally (if not yet personally) accountable.
Like any bully, Sessions resents having to follow the law and having higher authorities tell him what to do. He has repeatedly made contemptuous, disingenuous legal arguments and presented factual misrepresentations in support of his lawless behavior and only grudgingly complied with court orders. He has disrespectfully and condescendingly lectured the courts about his authority and their limited role in assuring that the Constitution and the law are upheld. That’s why he loves lording it over the US Immigration Courts where he is simultaneously legislator, investigator, prosecutor, judge, jury, appellate court, and executioner in violation of common sense and all rules of legal ethics.
But, Sessions will be long gone before most of you new US Immigration Judges will be. He and his “go along to get along enablers” certainly will be condemned by history as the “21st Century Jim Crows.” Is that how you want to be remembered — as part of a White Nationalist movement that essentially is committed to intentional cruelty, undermining our Constitution, and disrespecting the legal and human rights and monumental contributions to our country of people of color and other vulnerable groups?
Every US Immigration Judge has a chance to stand up and be part of the solution rather than the problem. Do you have the courage to follow the law and the Constitution and to treat asylum applicants and other migrants fairly and impartially, giving asylum applicants the benefit of the doubt as intended by the framers of the Convention? Will you take the necessary time to carefully consider, research, deliberate, and explain each decision to get it right (whether or not it meets Sessions’s bogus “quota system”)? Will you properly factor in all of the difficulties and roadblocks intentionally thrown up by this Administration to disadvantage and improperly deter asylum seekers? Will you treat all individuals coming before you with dignity, kindness, patience, and respect regardless of the ultimate disposition of their cases. This is the “real stuff of genuine judging,” not just being an “employee.”
Or will you, as Sessions urges, treat migrants as “fish in a barrel” or “easy numbers,” unfairly denying their claims for refuge without ever giving them a real chance. Will you prejudge their claims and make false imputations of fraud, with no evidence, as he has? Will you give fair hearings and the granting of relief under our laws the same urgency that Sessions touts for churning out more removal orders. Will you resist Sessions’s disingenuous attempt to shift the blame for the existing mess in the Immigration Courts from himself, his predecessors, the DHS, and Congress, where it belongs, to the individuals and their attorneys coming before you in search of justice (and also, of course, to you for not working hard enough to deny more continuances, cut more corners, and churn out more rote removal orders)?
How will history judge you and your actions, humanity, compassion, understanding, scholarship, attention to detail, willingness to stand up for the rights of the unpopular, and values, in a time of existential crisis for our nation and our world?
Your choice. Choose wisely. Good luck. Do great things!
THE TRUMP ADMINISTRATION ripped more than 2,600 migrant children from their parents’ arms with no plan or procedures for reuniting them, resulting in some 500 children remaining effectively orphaned even today, five months after the fact. Now it proposes a new policy for jailing migrant children indefinitely, one that ensures they “are treated with dignity, respect and special concern for their particular vulnerability as minors.”
That assurance, along with its rich irony, is offered by Homeland Security Secretary Kirstjen Nielsen, who has proposed the policy in a brazen attempt to escape the strictures of a two-decade-old court settlement forbidding the long-term incarceration of minors who cross the border seeking asylum in the United States.
Ms. Nielsen, who was instrumental in executing the zero-compassion policy that traumatized so many toddlers, grade-schoolers, tweens and teens this spring and summer, now would have Americans believe her department recognizes children as particularly vulnerable human beings, deserving of dignity and respect. How will that dignity and respect be meted out when those children are confined, along with their parents, in long-term detention facilities that the administration now proposes to build?
Ms. Nielsen, along with immigration hard-liners such as White House adviser Stephen Miller, are convinced that so-called catch-and-release policies are largely to blame for the flow of families across the southern border. Among the factors contributing to those policies is the 1997 court agreement known as Flores, which arose from abundant evidence that migrant children had been harmed by long-term detention, and forbade it.
The reality is that Flores has been in effect for more than 20 years, during which migrant flows have dipped and surged. When the Trump administration tried, just a few months ago, to amend the Flores agreement to permit long-term detention of families, U.S. District Judge Dolly M. Gee rejected its argument that the agreement was to blame for a recent surge in border crossings. “Any number of other factors could have caused the increase in illegal border crossings, including civil strife, economic degradation, and fear of death in the migrants’ home countries,” the judge wrote.
The administration’s proposal sets up a new court fight, one that will test Homeland Security’s risible insistence that the new policy would “satisfy the basic purpose” of the Flores agreement while freeing the government to get tougher on migrants. The “basic purpose” of Flores was to protect children from harm; confining them defeats that mandate.
It is legitimate to take concrete steps to ensure that migrant families appear in immigration court when ordered to do so. Ankle bracelet monitors, bail and other means of achieving that have been effective, and their use can be expanded. What’s less effective, and at odds with American values, is the administration’s abiding faith in punitive measures where children are concerned. There’s no evidence that they work to cut illegal border-crossing; there’s plenty of evidence of their cruelty.
The editorial board represents the opinions of the board, its editor and the publisher. It is separate from the newsroom and the Op-Ed section.
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Undocumented immigrants at a bus station in McAllen, Tex.CreditCreditIlana Panich-Linsman for The New York Times
For all the human brain’s mysteries, its development is quite well understood. Early childhood and adolescence are crucial times of unparalleled neural growth. Just as trust and stability can enhance that growth, fear and trauma can impede it. Institutionalization, in particular, can have profound and deleterious effects, triggering a range of developmental delays and psychiatric disorders from which recovery can be difficult, if not impossible.
In light of that knowledge, the Trump administration’s latest move against immigrant children is especially troubling. On Thursday, the Department of Homeland Security proposed new regulations that would allow the government to detain migrant children indefinitely. Officials are now prohibited from detaining such minors for more than 20 days by an agreement known as the Flores settlement, which has been in place since 1997. The new rules would end that settlement and would likely open the door to an expansion of detention centers across the country.
D.H.S. says that by eliminating Flores, officials will deter illegal immigration, reasoning that undocumented adults will be less likely to enter the country to begin with if they know they can’t avoid long-term detention simply by having a child in tow. Immigration activists say the proposed rule’s true aims are both simpler and more diabolical than that: “They want to strip away every last protection for detained immigrant children,” says Omar Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project.
Even with Flores in place, those protections have proved thin. Youth migrant shelters — there are roughly 100 such facilities housing more than 10,000 minors across the country — have been cited for a long list of abuses, including physical abuse, sexual abuse, blatant medical neglect, the forcible injection of antipsychotic medications, the unlawful restraint of children in distress and harsh rules that prohibit even siblings from hugging one another. The shelters in question, several of which are facing lawsuits, are part of a network that has received billions of federal dollars in the past four years alone. That money has continued to pour in even as abuse allegations have multiplied.
Related
For more on detained migrant children
Restraint Chairs and Spit Masks: Migrant Detainees Claim Abuse at Detention Centers
Opinion | The Editorial Board
The Continuing Tragedy of the Separated Children
The administration bears unique responsibility for these violations, in no small part because its disastrous and short-lived separation policy has wreaked havoc on a system that was already rife with problems. Shame alone should have federal officials working hard to undo the damage of that policy and to prevent further harm to the children under their charge, never mind that it’s the right thing to do under any number of international agreements and norms.
But their latest plan is more likely to exacerbate existing problems than to resolve them. The proposed regulations would eliminate the standing requirement that detention centers submit to state inspections and would narrow the scope of relatives to whom children can be released to only parents and legal guardians — no aunts, uncles or other extended family members. It would also trigger a proliferation of new facilities: The administration projects that Immigration and Customs Enforcement-run family detention would increase from 3,000 beds to 12,000. The number of shelters for unaccompanied immigrant minors may also grow.
The proposals will be open to public comment for the next 60 days before they can be finalized. Readers who wish to register their concern can do so on the Federal Register’s website.
After that period, the issue is almost certainly headed to court. Observers say the same judge who has ruled against past attempts to undermine Flores is likely to thwart this attempt as well.
Which paints a stark reality for what’s motivating this move and what it ultimately means: The administration surely knows what a long shot this proposal is, but it will undoubtedly excite President Trump’s political base as the midterm elections approach. So while the administration plays politics, the well-being of thousands of children who came to America seeking protection and safety will be put at risk — today and, developmentally, for the rest of their lives.
The Trump administration wants no limits on how long it can detain migrant kids and their parents.
Of all the appalling things the Trump administration has done, the cruelest has to be arresting and detaining asylum seekers, and separating them from their children. Seeking to deter desperate families from entering the United States by detaining parents for weeks or months apart from their children is so hard-hearted it shocks the conscience. The cruelty has been compounded by ineptitude, as hundreds of migrant children have been stranded in the United States without their parents, who have been deported.
Thankfully, the administration’s callousness has been held in check by a court order left over from President Clinton’s second term. The 1997 settlement agreement in Flores vs. Reno requires, among other things, that children facing deportation be held in detention for no more than 20 days, and in the least restrictive environment possible. Courts later extended the agreement to include families with minors in detention centers. (The government has been sued at least five times for allegedly violating the order.)
Now the Trump administration wants to scrap the agreement entirely by instituting even more draconian regulations that would allow it to detain families with minors as long as it may take to resolve their deportation cases. That’s beyond the pale.
Migrant children seeking permission to remain in the U.S. should not be detained regardless of whether they have a parent to accompany them in confinement. It’s especially troubling that one of the administration’s stated reasons for doing so is to send a threatening message to other families who might seek asylum in the U.S. from dangerous circumstances in their home countries.
Of course, the government has the right and duty to set immigration laws and enforce them. And we have a system for that, broken as it might be. Current U.S. law allows asylum to be granted to people facing persecution because of their race, religion, nationality, political opinion or “membership in a particular social group.” If immigration courts rule that applicants don’t meet those requirements, or reject appeals by people seeking permission to stay on humanitarian grounds, the government is entirely within its rights to send them to their home countries. But it should not (and may not, under international agreements) incarcerate them — especially when they are children — unless there is good cause to think the migrants are a flight risk or pose a threat to public safety.
Remember, most of these families arrive seeking official permission to stay, so they have a powerful incentive not to skip their court hearings or break the law: doing so only leads to deportation orders. Advocates argue that most of the aslyum seekers who do miss court dates never received an appearance notice, often because the process takes so long that their addresses change and official records don’t catch up. As for public safety, a raft of studies has found that immigrants, regardless of their status, commit crimes at lower rates than native-born Americans.
If no-shows truly are the administration’s concern, it inherited a new Family Case Management Program from the Obama administration that matched eligible asylum-seeking families with housing, healthcare, schooling for the children and legal advice to help navigate the immigration court system. Families in that program had a 99% show-rate for court hearings. But Trump killed it last year.
Under the Flores agreement, the government can hold minors only in state-licensed facilities. But states tend not to license facilities for families, which, the government argues, means that it must release the families while the deportation cases continue.
The new regulations would let the federal government do the licensing of facilities, paving the way for a massive expansion of the detention system. The government currently uses three family detention centers with a total of 3,500 beds. They are secured, dormitory-style facilities with shared bathrooms, common areas, play space and rooms for classes. Trump wants to add 15,000 more beds, but that may just be the start; border agents caught 77,674 people migrating as families in 2016 alone.
It is fundamentally inhumane to incarcerate children — with or without their parents — while immigration courts try to figure out what to do with them. Psychiatrists warn of the damage even from short-term detentions, and some of those who have been held for months have shown signs of severe emotional distress and post-traumatic stress disorder. So in its obsessive quest to stop migrants from seeking asylum, the Trump administration is willing to, in essence, commit child abuse. That’s a stain not just on the presidency, but on the nation.
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The White Nationalist Scofflaws are at it again! Even if were effective as a deterrent (which all reliable data and experience show it isn’t), detention for deterrence would still be illegal.
Join the New Due Process Army and fight to uphold our Constitution and true American values against the White Nationalism, racism, cruelty, xenophobia, and lawlessness of Trump, Sessions, and their cronies! Put an end to Sessions’s “New American Gulag” (“NAG”)!
Trump admin seeks to keep immigrant families in detention indefinitely
By Tal Kopan, CNN
The Trump administration has released a proposal to overhaul the way that undocumented immigrant families are treated in custody, a maneuver that would allow the government to keep the families in detention as long as their immigration court case remains open.
The proposed federal regulations would notably revoke the court case known as the Flores Settlement Agreement, which governs how undocumented children can be treated in custody. The regulations are scheduled to be published in the Federal Register on Friday.
The more than 200-page rule would have sweeping implications for the immigration detention system in the US and is likely to face swift resistance from advocates who brought the Flores case and those who have supported it.
One of the biggest proposed changes would create a federal license system to allow for detention centers that could hold families. The administration argues that it is the state-based licensing system that is causing issues that would restrict family detention.
The arguments for the rule are similar to the case the administration has made in court before Judge Dolly Gee, who oversees the settlement. Gee has rejected those arguments in her courtroom.
“This rule would allow for detention at (family detention centers) for the pendency of immigration proceedings … in order to permit families to be detained together and parents not be separated from their children,” the rule states. “It is important that family detention be a viable option not only for the numerous benefits that family unity provides for both the family and the administration of the INA, but also due to the significant and ongoing influx of adults who have made the choice to enter the United States illegally with juveniles or make the dangerous overland journey to the border with juveniles, a practice that puts juveniles at significant risk of harm.”
Pretty outrageous. But, about what we would expect from a racist White Nationalist Administration with no respect for the Constitution, laws, Federal Courts, or human dignity, and that is hell-bent on wasting our taxpayer money on evil causes.
I predict that this will “reactivate” the Flores litigation before Judge Gee. She, in turn, will “stuff” the Administration on its insulting, contemptuous, and clearly bogus justification for the detention.
These individuals are coming to the US seeking to exercise legal rights to apply for protection. Every reliable study shows that if released under alternatives to detention, informed of what the system requires, given adequate notice, and, most important, given reasonable access to lawyers they show up for their hearings nearly 100% of the time and actually prevail on the merits in a significant number of cases (the success rate is kept artificially low by the disingenuous anti-asylum jurisprudence created by Sessions and by a pre-existing legal bias in the system against many asylum seekers from the Northern Triangle, also fanned and encouraged by Sessions’s overt xenophobia).
Stay tuned for another monumental waste of taxpayer money on yet another misguided Administration attempt to impose a White Nationalist immigration agenda!
Texas judge says he’ll likely kill DACA — but not yet
Washington (CNN)A federal judge on Friday hinted he will likely invalidate the Deferred Action for Childhood Arrivals program in the future — but for now the program can continue to operate.
The ruling was an unexpected, albeit temporary, reprieve for the program, which President Donald Trump opted to end almost exactly a year ago.
Texas-based District Judge Andrew Hanen wrote Friday that he believes DACA is likely illegal and ultimately will fail to survive a challenge before his court. DACA is an Obama-era program that protects young undocumented immigrants who came to the US as children from deportation.
But despite that — and despite finding that the continuation of DACA could harm the eight states and two governors who challenged the program — Hanen decided not to issue a ruling that would have immediately blocked DACA’s continuation.
Since Trump sought to end DACA last September, the program’s future has been in doubt. Members of Congress largely say they want to preserve the program legislatively, but have failed to pass anything in two opportunities to do so. In the meantime, three federal courts have sustained the program.
While Hanen rebuffed the red states’ request to end DACA immediately, his inclination to invalidate the program eventually contributes to what experts expect to be a fast track to the Supreme Court in the coming year.
Hanen said that there were two issues that required him to deny the request to immediately halt the program: One was timeliness. He found that because Texas and its coalition of states waited more than five years after the implementation of DACA, even as it challenged a related program, to file this suit, that it lost some of its ability to claim damages were immediately harmful and thus required an immediate response.
In addition, Hanen ruled that though the states could prove they were harmed by the continuation of DACA, mainly in costs of benefits to recipients, the potential consequences of ending DACA immediately were more harmful.
Three federal judges have blocked the administration from ending DACA as it tried to do last September, ordering the Department of Homeland Security to continue renewing permits under the program.
But Hanen was widely expected to be unfavorable to DACA, as he had previously prevented a similar, expanded program from ever going into effect under the Obama administration.
The new case challenging the DACA program, instituted in 2012, drew heavily from that decision Hanen made on the 2014 expansion of the program and creation of a similar program for undocumented parents of Americans.
Hanen said in his Friday ruling that he largely agreed, and DACA was likely to be illegal under the same reasoning as that expansion.
But one major difference prevented him from immediately halting the program — the fact that it was already in effect.
“Here, the egg has been scrambled,” Hanen wrote. “To try to put it back in the shell with only a preliminary injunction record, and perhaps at great risk to many, does not make sense nor serve the best interests of this country.”
But in his 117-page decision, Hanen was clear that he did not intend his ruling to be interpreted as good news for the future of DACA, at least long term.
He said the popularity of the program was not relevant to whether it had been legally created — the crux of the challenge to it.
“DACA is a popular program and one that Conress should consider saving,” Hanen wrote. Nevertheless, “this court will not succumb to the temptation to set aside legal principles and to substitute its judgment in lieu of legislative action. If the nation truly wants to have a DACA program, it is up to Congress to say so.”
Texas Attorney General Ken Paxton, who led the challenge to DACA, hailed the ruling in a statement, despite it being an interim loss in court.
“We’re now very confident that DACA will soon meet the same fate as the Obama-era Deferred Action for Parents of Americans program, which the courts blocked after I led another state coalition challenging its constitutionality,” Paxton said. “Our lawsuit is vital to restoring the rule of law to our nation’s immigration system.”
Hanen’s ruling Friday defuses the threat to DACA for some time. In a separate order, Hanen took the unusual step of making it possible to appeal his denial of an immediate halt to the program, and gave the parties three weeks to figure out next steps before the case moves to its next phase.
The Department of Justice declined to defend DACA in the lawsuit, but did ask Hanen to limit the effect of any ruling he may have issued.
Spokesman Devin O’Malley said in a statement that Hanen had agreed DACA is unlawful, “as the Justice Department has consistently argued,” and said the department was “pleased” with the decision.
In the administration’s stead, DACA was defended by the pro-immigrant advocacy and legal organization MALDEF and the state of New Jersey.
In a statement Friday, MALDEF hailed the ruling but noted it still believes DACA to be legal.
“While MALDEF continues to disagree adamantly with the judge’s views on the legality of DACA under the Administrative Procedures Act (APA), and on whether the state of Texas even has standing — as required by the Constitution — to challenge DACA, today’s court decision appropriately leaves DACA in place with respect to over 100,000 Texans and hundreds of thousands of others nationwide,” said Thomas A. Saenz, president and general counsel of MALDEF.
This story has been updated.
CNN’s Ariane de Vogue and Jason Morris contributed to this report.
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It’s not clear to me that Judge Hanen can kill the program even if he finds it illegal, given the contrary findings and injunctions already in effect from several other U.S. District Judges. Indeed, there are several cases already pending in the DC Circuit and the Ninth Circuit that cold moot the whole issue. It’s the kind of mess we get into when Congress abdicates its duty to legislate.
ICE officials lied when they said that Iraq would take back more than 1,000 citizens of the country that had been ordered deported from the US, including dozens of people who have been detained for months, according to ACLU of Michigan filings in a federal case challenging the removal of Iraqis throughout the country.
The organization cited redacted information in federal court filings in Detroit Wednesday calling for more than 100 Iraqis who have been detained by ICE be released, for the court to sanction the agency for its misrepresentations, and for the secret documents to be made public.
Back in June 2017, the ACLU successfully got US District Judge Mark Goldsmith to block the deportation of around 1,400 Iraqis who had been targeted for removal, most for overstaying their visas or being convicted of crimes, after Iraq agreed to take back certain citizens in exchange for being taken off the Trump administration’s travel ban list.
Hundreds of these Iraqis were arrested in June throughout the country, mainly in Michigan. Goldsmith found that the Iraqis, many of whom are from religious minorities, would face torture or death based on their residence in the US, their publicized criminal records, or their religious affiliation.
In its filings, the ACLU claims that ICE’s declarations that Iraq had agreed to take all of them back were false. The Iraqi government has long had a policy of not accepting those who were being repatriated involuntarily to the country.
The executive order striking Iraq from the travel ban list cites Iraq’s willingness to return those Iraqis who have final orders of deportation but ICE officials ran into complications getting Iraq to take those who did not voluntarily want to go back, according to the ACLU.
In fact, the ACLU claims that ICE officials were so frustrated by Iraq’s unwillingness to take back those who did not voluntarily agree to be deported that it sought sanctions in July 2017 that would restrict certain types of visas given to Iraqi nationals.
“The government has fought for fourteen months to hide the truth,” said Margo Schlanger, a professor at the University of Michigan Law School and an attorney assisting the ACLU with the case, in a statement. “We’ve finally gotten the documents, and it turns out that what the government told the court is untrue. We hope the court will allow us to share the truth with the detainees, their families, and the public, all of whom deserve to know what is really happening in this case.”
ICE declined to comment on the filings because the case was ongoing.
Meanwhile, the ACLU pointed to people like Firas Nissan, who has been in the US for 17 years after fleeing Iraq because he had been threatened and locked up there. Nissan missed an asylum hearing in 2004 because of an illness and was ordered deported but was still able to live in the country by agreeing to check in with ICE officials for 13 years, the ACLU said.
Then, in June 2017, he was arrested by ICE officers and has been jailed ever since, one of the 110 Iraqis in detention, according to the ACLU.
“He is locked in solitary confinement 21 hours a day, is not receiving needed medical care, can rarely see his family, and has not been able to provide for them, though he was previously the family’s breadwinner,” attorneys with the ACLU wrote in their filing calling for his and others’ release.
The ACLU, citing the redacted information, believes that Nissan and the rest of the group should be released because prolonged detention is unconstitutional when deportation is unlikely. ICE, the group said, has argued that the detainees should remain in custody because they can be taken to Iraq via a charter flight if the federal injunction is lifted.
ICE has even struggled with deporting the small number of individuals who had agreed to be sent back to Iraq. The agency has only deported 17 of the 37 Iraqis who agreed to be deported, according to the ACLU.
“It is appalling that ICE wants to lock these people up and throw away the key, and even more appalling that ICE misled the court in order to do so,” said Miriam Aukerman, a senior staff attorney with the ACLU of Michigan, in a statement. “ICE’s dishonesty is the reason the detainees are behind bars, rather than home with their families.”
I remember that one of my DOJ colleagues who spent a good chunk of his career litigating immigration cases in court was a total stickler for accurate citations. He got very upset if there was so much as an error of a single digit in the page number of a “pinpoint citation.” I asked him about it. He related how as a young DOJ attorney he once had been publicly chewed out by a Federal Judge for an inadvertent citation error. He never forgot the experience and the value that the Federal Courts put on honesty and the highest quality of work from DOJ Attorneys. And, as any of us who worked in the DOJ in the “old days” knew, an attorney representing the Government was responsible for exercising “due diligence” to verify the truth of any representations made on behalf of an “agency client.”
In this case, apparently the information on the true position of the Iraqi Government was eventually ferreted out by the ACLU from ICE records. Therefore, it also should have been available to the DOJ attorneys representing the DHS. I guess that things have changed in both the DOJ and in the Federal Judges’ expectations for attorneys representing the Government and their agency clients.
PROGRAM NOTE: I am among a group of former Government officials who filed an amicus brief in behalf of the plaintiffs in this case.
‘Suicide,’ ‘catastrophe’: Nicaraguans in US terrified of looming end of protections
By Tal Kopan, CNN
Cassandra has lived and worked in the US over 20 years. Threats to her life have been made to her family and friends back in Nicaragua. It would be “suicide” to move back, she says.
But the Trump administration says she and thousands of other immigrants like her must do so by January.
On Jan. 5, roughly 5,300 Nicaraguans who have lived in the US since at least that date in 1999 will lose their protected status. If they have no other immigration status in the US, they will be forced to either return to the country or risk living in the US illegally.
The decision to end temporary protected status for Nicaraguans last November was overshadowed by similar Trump administration decisions to end such protections for hundreds of thousands more immigrants from neighbors Honduras and El Salvador. Nationals of Nicaragua received the shortest time frame of any of those TPS recipients to get their affairs together: 12 months.
But since that decision was made, Nicaragua has plunged into violence and political unrest, with at least 322 people dying there since mid-April, according to the Inter-American Commission on Human Rights, part of the Organization of American States. By the White House’s own count, the toll is more than 350. The UN Refugee Agency has put out guidance to its member countries asking them to allow Nicaraguans to enter and to apply for asylum once there.
The situation is bad enough that the Trump administration sanctioned three Nicaraguan officials in July for human rights abuses, saying President Daniel Ortega and his vice president “are ultimately responsible for the pro-government parapolice that have brutalized their own people.”
In light of the violence, a bipartisan group of seven bipartisan lawmakers wrote to President Donald Trump, Homeland Security Secretary Kirstjen Nielsen and Secretary of State Mike Pompeo in late July asking the President to either reconsider ending temporary protected status for Nicaraguans or to designate a new status for them.
“It would be, frankly, I think, unacceptable to then send folks back to that same place that we’re sanctioning,” Republican Rep. Mario Diaz-Balart of Florida, one of those who signed the letter, told CNN. “It’s a barbaric regime that’s literally murdering people in the streets. … It would be a catastrophe, and it’s one that can be avoided.”
Diaz-Balart said he has not gotten a response from the administration to the letter, though he remains hopeful it will reverse course.
The Department of Homeland Security ignored repeated requests for comment from CNN about whether it’s considering extending further protections to Nicaraguans.
Hundreds of immigrant kids remain separated from parents
By Tal Kopan, CNN
Hundreds of children separated from their parents at the US-Mexico border remain separated from their parents, including 497 in government custody, according to a new court filing Thursday.
The figure includes 22 children under the age of five still in government care. Six of those are 4 years old or younger whose parents were deported without them.
A total of 1,937 children have been reunified with parents, up only 14 from last week.
The numbers have changed only slightly from last week, as the court filing from the Justice Department and the American Civil Liberties Union case describes a slow and laborious process to try to connect the families that have been separated.
It remains unclear exactly how many parents were deported without their children, though it’s in the hundreds. By the government’s latest count, there are 322 deported parents who have children still in custody.
But the ACLU, which filed the lawsuit on behalf of separated parents, says the administration has previously given it a list of deported parents that includes 70 additional cases. The administration said, according to the ACLU, that some of the discrepancy is due to kids being released from care. It’s not clear what will happen to those families.
US District Judge Dana Sabraw will hold a status hearing on the case Friday.
So, we send good folks who have been contributing to our economy and society back to likely harm at the hands of the repressive leftist Government of Nicaragua basically because they are Latinos. Of course, almost all of them have very plausible asylum, withholding, CAT, or cancellation of removal claims. So, more than 5,000 cases will needlessly be thrown back into our already overwhelmed Immigration Court system. No wonder the backlog continues to mushroom under Sessions’s White Nationalist policies! Racist-driven policies always come at a high cost!
In the meantime, Sessions continues publicly to thumb his nose at Federal Judges, while making less than impressive efforts to comply with their lawful orders. And, families and children continue to suffer from Sessions’s White Nationalist agenda.
The U.S. government expects children as young as 18 months to represent themselves in immigration court. Lawyers in Miami made a coloring book to help kids understand what they’re facing.
The U.S. government expects children, as young as 18 months and unable to speak, to represent themselves in immigration court to fight against their deportation. Lawyers in Miami made a coloring book to help kids understand what they’re facing.Image by Alfredo De Lara
Media coverage of the border crisis has heavily focused on separated parents and children. But migrant children’s nightmares are just beginning once they set foot here, as documented in the video above. Every child that crosses the border without permission has an immigration court case to fight, but there is no right to free counsel in that court.
So children, who sometimes speak only an indigenous language, are going up alone against government lawyers to fight to stay in the United States. If that sounds absurd, that’s because it is. Congress has the power to change this.
After President Trump’s “zero tolerance” policy went into effect, we at Americans for Immigrant Justice began to see an increase in young children needing legal representation. We thought: How do we get toddlers to understand the gravity of their situation?
We created a coloring book to explain to these children their rights. It explains concepts such as what a country is, who is an immigrant and what a judge does. We read the book to separated and unaccompanied children as part of our “know your rights” presentations and have them act out scenarios from the story.
The kids in this video op-ed are the lucky ones. They were released from a children’s shelter run by the Office of Refugee Resettlement to family members in Miami. We are representing them in court free. But for many children we engage with at the shelters, the coloring book is the only legal advice they receive.
The stakes are high: Over half of all children in immigration court are unrepresented. Nine out of 10 of them will be ordered deported. If we as a country are truly invested in protecting children, the bare minimum that we can do is ensure access to a lawyer for immigrant children who cannot afford one.
Jennifer Anzardo Valdes is the director of the Children’s Legal Program at Americans for Immigrant Justice, a nonprofit law firm based in Miami.
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Click the above link and watch the video by Leah Varjacques.
Under Jeff Sessions, intentional child abuse has become a norm and the operation of the Immigration Courts with little or no regard for Due Process, common sense, and human decency is a national disgrace. When will it end? How many will suffer needlessly and be abused to feed Sessions’s White Nationalist myth? Where is justice?
Join the New Due Process Army and fight to hold Jeff Sessions accountable for all of his illegal and immoral actions!
C. Ryan Barber reports for the National Law Journal:
Judge Who Forced Feds to ‘Turn That Plane Around’ Blocks Another Deportation
U.S. District Judge Emmet Sullivan this month lambasted federal officials for the unauthorized removal of a woman and her daughter while their emergency court challenge was unfolding in Washington, D.C.
Judge Emmet Sullivan of the U.S. District Court for D.C. May 27, 2009. Photo by Diego M. Radzinschi/NATIONAL LAW JOURNAL.
A federal judge on Thursday ordered the Trump administration not to depart a pregnant Honduran woman as she seeks asylum in the United States, two weeks after demanding that the government turn around a plane that had taken a mother and daughter to El Salvador amid their emergency court appeal challenging removal.
U.S. District Judge Emmet Sullivan, of the U.S. District Court for the District of Columbia, granted a temporary stay preventing the Honduran woman’s deportation following a hearing on her challenge to the administration’s decision to make it all but impossible for asylum seekers to gain entry into the United States by citing fears of domestic abuse or gang violence.
In court papers filed earlier this week, the Honduran woman’s lawyers—a team from Jones Day—said she fled her home country “after her partner beat her, raped her, and threatened to kill her and their unborn child.” The woman, suing under the pseudonym “Zelda,” is currently being held at a Texas detention center.
“Zelda is challenging a new policy that unlawfully deprives her of her right to seek humanitarian protection from this escalating pattern of persecution,” the woman’s lawyers wrote in a complaint filed Wednesday. The immigrant is represented pro bono by Jones Day partner Julie McEvoy, associate Courtney Burks and of counsel Erin McGinley.
At Thursday’s court hearing, McGinley said her client’s deportation was imminent absent an order from the judge blocking such a move. “Our concern today,” McGinley said, “is that our client may be deported in a matter of hours.”
U.S. Justice Department lawyers on Wednesday filed papers opposing any temporary stay from deportation. A Justice Department lawyer, Erez Reuveni, argued Thursday that the Honduran woman lacked standing to challenge the Justice Department’s new immigration policy, which makes it harder for immigrants seeking asylum to argue fears of domestic violence and gang violence.
After granting the stay preventing the Honduran woman’s deportation, Sullivan made clear he had not forgotten the events of two weeks ago, when he learned in court that the government had deported a mother and daughter while their emergency challenge to deportation was unfolding.
“Somebody … seeking justice in a United States court is spirited away while her attorneys are arguing for justice for her? It’s outrageous,” Sullivan said at the Aug. 9 hearing. “Turn that plane around and bring those people back to the United States.”
Sullivan on Thursday urged Reuveni to alert immigration authorities to his order. Reuveni said he would inform those authorities, adding that he hoped there would not be a recurrence of the issue that arose two weeks earlier.
“It’s got to be more than hopeful,” Sullivan told Reuveni in court Thursday. Reuveni said he could, in the moment, speak for himself and the Justice Department, but not the Department of Homeland Security, which oversees U.S. Immigration and Customs Enforcement.
“I cannot speak for ICE until I get on the phone with them and say this is what you need to do immediately,” Reuveni said.
Sullivan said he appreciated Reuveni’s “professionalism” and his efforts to “undo the wrong” that had been done to the Salvadoran mother and daughter earlier this month.
Stressing the need for a stay against Zelda’s deportation, McGinley said at Thursday’s hearing: “To be blunt, if she’s killed, there’s no remedy, your honor.” She added: “No remedy at all.”
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When individuals have access to high quality counsel like Jones Day, the courts pay more attention. That’s why Sessions & co. are working overtime to insure that individuals are hustled though the system without any meaningful access to counsel and, perhaps most outrageously, by excluding counsel from participation in the largely rigged “credible fear review process” before the Immigration Court. This isn’t justice; it isn’t even a parody of justice. It’s something out of a Kafka novel.
No wonder the Sessions-infused DOJ attorneys don’t want any real court to take a look at this abusive and indefensible removal of individuals with serious claims to relief without consideration by a fair and impartial adjudicator operating under the Constitution and our Refugee Act rather than “Sessions’s law.”
Judge Sullivan actually has an opportunity to put an end to this mockery of American justice by halting all removals of asylum seekers until at least a semblance of Due Process is restored to the system. The only question is whether he will do it! The odds are against it; but, with folks like Jones Day arguing in behalf of the unfairly condemned, the chances of halting the “Sessions Death Train” have never been better!
(Full Disclosure: I am a former partner at Jones Day. I’ve never been prouder of my former firm’s efforts to protect the American justice system and vindicate the rights of the most vulnerable among us. Congrats and appreciation to Jones Day Managing Partner Steve Brogan, Global Pro Bono Coordinator Laura Tuell, Partner Julie McEvoy, Of Counsel Erin McGinley, and everyone else involved in this amazing and much needed effort!)
In July, I left my wife and two little girls and traveled from Denver to Dilley, Texas, to join a group of volunteers helping migrant women in detention file claims for asylum. I am not a lawyer, but I speak Spanish and have a background in social work. Our task was to help the women prepare for interviews with asylum officers or to prepare requests for new interviews.
The women I worked with at the South Texas Family Residential Center in Dilley had been separated from their children for up to two and a half months because of a policy instituted by the Trump administration in April 2018, under which families were targeted for detention and separation in an attempt to dissuade others from embarking on similar journeys. Although the separations have stopped because of the resulting public outcry, hundreds of families have not been reunited (including more than 20 children under 5), families continue to be detained at higher rates than adults crossing the border alone, and the trauma inflicted on the women and children by our government will have lifelong consequences.
To be clear, this is a policy of deliberately tormenting women and children so that other women and children won’t try to escape life-threatening conditions by coming to the United States for asylum. I joined this effort because I felt compelled to do something to respond to the humanitarian crisis created by unjust policies that serve no purpose other than to punish people for being poor and female ― for having the audacity to be born in a “shithole country” and not stay there.
I traveled with a group of amazing women gathered by Carolina, a powerhouse immigration lawyer and artist from Brooklyn. My fellow volunteers were mostly Latinas or women whose histories connected them deeply to this work. Through this experience, we became a tight-knit community, gathering each night to process our experiences and try to steel ourselves for the next day. Working 12-hour shifts alongside us were two nuns in their late 70s, and it was one of them who best summed up the experience as we entered the facility one morning. “What is happening here,” she said, “makes me question the existence of God.”
It was a nun who best summed up the experience as we entered the facility one morning. ‘What is happening here,’ she said, ‘makes me question the existence of God.’
I am still in awe of the resilience I witnessed. Many of the women I met had gone for more than two weeks without even knowing where their children were. Most had been raped, tormented, threatened or beaten (and in many cases, all of the above) in their countries (predominantly Honduras and Guatemala). They came here seeking refuge from unspeakable horrors, following the internationally recognized process for seeking asylum. For their “crime,” they were incarcerated with hundreds of other women and children in la hielera (“the freezer,” cold concrete cells with no privacy where families sleep on the floor with nothing more than sheets of Mylar to cover them) or la perrera (“the dog kennel,” where people live in chain link cages). Their children were ripped from their arms, they were taunted, kicked, sprayed with water, fed frozen food and denied medical care. Yet the women I encountered were the lucky ones, because they had survived their first test of will in this country.
Woman after woman described the same scene: During their separation from their children ― before they learned of their whereabouts or even whether they were safe ― the women were herded into a room where Immigration and Customs Enforcement officials handed them papers. “Sign this,” they were told, “and you can see your children again.” The papers were legal documents with which the women would be renouncing their claims to asylum and agreeing to self-deport. Those who signed were deported immediately, often without their children. Those who refused to sign were given sham credible-fear interviews (the first step in the asylum process), for which they were not prepared or even informed of asylum criteria.
The women were distraught, not knowing what ICE had done with their children or whether they would see them again. Their interviews were conducted over the phone, with an interpreter also on the line. The asylum officer would ask a series of canned questions, and often the women could reply only, “Where is my child? What have you done with my child?” or would begin to give an answer, only to be cut off midsentence. Not surprisingly, almost all of them got negative results — exactly the outcome this policy was designed to produce. Still, these women persisted.
After a court battle, my clients were reunited with their children and were fortunate enough to have access to free legal representation (many do not) through the CARA Pro Bono Project. The women arrived looking shell-shocked, tired, determined. Some of their children clung to them, afraid to be apart even for a few minutes, making it very hard for the women to recount their experiences, which often included sexual violence, death threats and domestic abuse. Other children stared into space or slept on plastic chairs, exhausted from sleepless nights and nightmares. Still others ran manically around the legal visitation trailer. But some of the children showed incredible resilience, smiling up at us, showing off the few English words they knew, drawing pictures of mountains, rivers, neat little houses. They requested stickers or coloring pages, made bracelets out of paper clips. We were not allowed to give them anything ― no treats or toys or books. We were not allowed to hug the children or their mothers ― not even when they sobbed uncontrollably after sharing the details of their ordeals.
In the midst of this sadness and chaos, the humanity of these women shined through. One of my clients and her son, who had traveled here from Guatemala, took great pleasure in teaching me words in their indigenous language, Mam. She taught me to say “courageous” ― hao-tuitz ― and whenever our work got difficult, we would return to this exhortation. These lessons were a welcome break from reviewing the outline of the experiences that drove them to leave, fleshing it out with details for their interview. They wearied of my pressing them to remember facts I knew the asylum officer would ask about. They wanted only to say that life is very hard for indigenous people, that their knowledge of basic Spanish was not enough to make them equal members of society. Mam is not taught in schools, and almost everyone in Guatemala looks down on those who speak it. They were so happy to have a licenciada (college graduate) interested in learning about their culture. We spent almost an hour finding their rural village on Google Earth, zooming in until we could see pictures of the landscape and the people. As we scrolled through the pictures on the screen, they called out the people by name. “That’s my aunt!” and “There’s my cousin!” There were tears of loss but mostly joy at recognizing and feeling recognized ― seen by the world and not just dismissed as faceless criminals.
A diabetic woman who had not had insulin in over a week dared to ask for medical attention, an infraction for which she was stripped naked and thrown in solitary confinement.
There were stories of the astonishing generosity of people who have so little themselves. One colleague had a client who had been kidnapped with her daughter and another man by a gang while traveling north from Guatemala. The kidnappers told the three to call their families, demanding $2,000 per person to secure their release. The woman was certain she and her daughter were going to die. Her family had sold, mortgaged and borrowed everything they could to pay for their trip. They had never met the man who was kidnapped with them. She watched as he called his family. “They’re asking for $6,000 for my release,” she said he told them. He saved three lives with that phone call. When they got to the U.S.-Mexico border, they went separate ways, and she never saw him again, never knew his last name.
Not everything I heard was so positive. Without exception, the women described cruel and degrading treatment at the hands of ICE officials at the Port Isabel immigrant processing center, near Brownsville, Texas. There was the diabetic woman who had not had insulin in over a week and dared to ask for medical attention, an infraction for which she was stripped naked and thrown in solitary confinement. Women reported being kicked, screamed at, shackled at wrists and ankles and told to run. They described the cold and the humiliation of not having any privacy to use the bathroom for the weeks that they were confined. The children were also kicked, yelled at and sprayed with water by guards, then awoken several times a night, ostensibly so they could be counted.
Worse than the physical conditions were the emotional cruelties inflicted on the families. The separation of women from small children was accomplished by force (pulling the children out of their mothers’ arms) or by deceit (telling the women that their children were being taken to bathe or get medical care). Women were told repeatedly that they would never see their children again, and children were told to stop crying because they would never see their mothers again. After the children were flown secretively across the country, many faced more cruelty. “You’re going to be adopted by an American family,” one girl was told. Some were forced to clean the shelters they were staying in and faced solitary confinement (el poso) if they did not comply. Children were given psychotropic drugs to ameliorate the anxiety and depression they exhibited, without parental permission. One child underwent surgery for appendicitis; he was alone, his cries for his mother were disregarded, and she was not notified until afterward.
The months of limbo in which these women wait to learn their fate borders on psychological torture. Decisions seem arbitrary, and great pains are taken to keep the women, their lawyers and especially the press in the dark about the government’s actions and rationales for decisions. One woman I worked with had been given an ankle bracelet after receiving a positive finding at her credible fear interview. Her asylum officer had determined that she had reason to fear returning to her country and granted her freedom while she pursues legal asylum status. Having cleared this hurdle, she boarded a bus with others to be released, but at the last moment, she was told her ankle bracelet needed a new battery. It was removed, and she was sent instead to a new detention center without explanation. A reporter trying to cover the stories of separated families told me about her attempt to follow a van full of prisoners on their way to be reunited with their children so that she could interview them. First ICE sent two empty decoy vans in different directions, and then it sent a van with the detainees speeding down a highway, running red lights to try to outrun her. Every effort is being made to ensure that the public does not know what is happening.
The accounts of the horrors that women were fleeing are almost too graphic to repeat. Of the many women I spoke to, only one did not report having been raped.
The accounts of the horrors that women were fleeing are almost too graphic to repeat. Of the many women I spoke to, only one did not report having been raped. The sexual assaults the women described often involved multiple perpetrators, the use of objects for penetration and repeated threats, taunting and harassment after the rape. A Mormon woman I worked with could barely choke out the word “rape,” much less tell anyone in her family or community what had happened. Her sweet, quiet daughter knew nothing of the attack or the men who stalked the woman on her way to the store, promising to return. None of the women I spoke with had any faith that the gang-ridden police would or could provide protection, and police reports were met with shaming and threats. Overwhelmingly, the women traveled with their daughters, despite the increased danger for girls on the trip, because the women know what awaits their little girls if they stay behind. Sometimes the rapes and abuse were at the hands of their husbands or partners and to return home would mean certain death. But under the new directives issued by Attorney General Jeff Sessions, domestic violence is no longer a qualifying criterion for asylum.
Two things I experienced during my time in Dilley made the purpose of the detention center crystal clear. The first was an interaction with an employee waiting in line with me Monday morning to pass through the metal detector. I asked if his job was stressful, and he assured me it was not. He traveled 80 minutes each day because this was the best-paid job he could get, and he felt good about what he was doing. “These people are lucky,” he told me, “They get free clothes, free food, free cable TV. I can’t even afford cable TV.” I did not have the presence of mind to ask him if he would give up his freedom for cable. But his answers made clear to me how the economy of this rural part of Texas depends on prisons. The second thing that clarified the role of the detention center was a sign in the legal visitation trailer, next to the desk where a guard sat monitoring the door. The sign read, “Our stock price today,” with a space for someone to post the number each day. The prison is run by a for-profit corporation, earning money for its stockholders from the incarceration of women and children. It is important to note the exorbitant cost of this cruel internment project. ICE puts incarceration costs at $133 per person per night, while the government could monitor them with an ankle bracelet for $10 to $15 a day. We have essentially made a massive transfer of money from taxpayers to holders of stock in private prisons, and the women and children I met are merely collateral damage.
I have been back home for almost a month now. I am finally able to sleep without seeing the faces of my clients in my dreams, reliving their stories in my nightmares. I have never held my family so tight as I did the afternoon I arrived home, standing on the sidewalk in tears with my 7-year-old in my arms. I am in constant contact with the women I volunteered with, sharing news stories about family detention along with highlights of our personal lives. But I am still waiting for the first phone call from a client. I gave each of the women I worked with my number and made them promise to call when they get released. I even told the Mormon woman that I would pray with her. No one has called.
I comb the details of the Dilley Dispatch email, which updates the community of lawyers and volunteers about the tireless work of the on-the-ground team at Dilley. This week the team did 379 intakes with new clients and six with reunified families. There were three deportations ― two that were illegal and one that was reversed by an ACLU lawsuit. Were the deported families ones I worked with? What has become of the Mam-speaking woman and her spunky son, the Mormon woman and her soft-spoken daughter, the budding community organizer who joked about visiting me? Are they safely with relatives in California, North Carolina and Ohio? In each case, I cannot bear to imagine the alternative, the violence and poverty that await them. I have to continue to hope that with the right advocates, some people can still find refuge here, can make a new life ― that our country might live up to its promises.
Catherine Powers is a middle school social studies teacher. She lives in Colorado with her wife and two daughters.
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Yes, every Administration has used and misused immigration detention to some extent. I’ll have to admit to spending some of my past career defending the Government’s right to detain migrants.
But, no past Administration has used civil immigration detention with such evil, racist intent to penalize brown-skinned refugees, primarily abused women and children from the Northern Triangle, so that that will not be able to assert their legal and Constitutional rights in America and will never darken our doors again with their pleas for life-saving refuge. And, as Catherine Powers points out, under Trump and Sessions the “credible fear” process has become a total sham.
Even in the “Age of Trump & Sessions,’ we still have (at least for now) a Constitution and a democratic process for removing these grotesquely unqualified shams of public officials from office. It starts with removing their GOP enablers in the House and Senate.
Get out the vote in November to oust the GOP and restore humane, Constitutional Government that respects individuals of all races and genders and honors our legal human rights obligations. If decent Americans don’t act now, 1939 might be here before we know it!
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Judge Emmet Sullivan of the U.S. District Court for D.C. May 27, 2009. Photo by Diego M. Radzinschi/NATIONAL LAW JOURNAL. 