"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Professor Karen Musalo Director, Center for Gender & Refugee Studies, Hastings Law
Read Karen’s newly-released article “Aligning United States Law with International Norms Would Remove Major Barriers to Protection in Gender Claims” in the 2024 Edition of the International Journal of Refugee Law. Here’s the abstract:
A B ST R A CT
The protection of women and girls fleeing gender-based harms has been controversial in the United States (US), with advances followed by setbacks. The US interpretation of particular social group and its nexus analysis, both of which diverge from guidance by the United Nations High Commissioner for Refugees (UNHCR), is the most significant barrier to protection. It has become almost impossible for women and girls to rely upon the particular social group ground because of current requirements that social groups not only be defined by immutable or fundamental characteristics, but also be socially distinct and have particularity. Establishing nexus is also a significant obstacle, with the US requirement of proof of the persecutor’s intent. In the first month of his administration, President Biden issued an executive order on migration, which raised hopes that these obstacles to protection would be removed. The order committed to protecting survivors of domestic violence and to issuing regulations that would make the US interpretation of particular social group consistent with international standards. The target date for the regulations was November 2021, but they have yet to issue. This article examines how the evolution of the US interpretation of particular social group and nexus has diverged from UNHCR recommendations. It shows how protection has been denied in gender cases involving the most egregious of harms. The article concludes by providing recommendations for realignment with international standards, which set a benchmark for evaluating the promised Biden administration regulations on the issue.
Karen’s highly readable “spot on” article prompted this additional thoughtful comment from my friend and Round Table colleague Hon. “Sir Jefferey” Chase:
Hi Karen: Wonderful article! So clear, so logical, and just so correct! Thanks as always for this. (And I’m extremely honored to find myself in several of your footnotes – thank you!)
Create a “Charming Betsy” Reg Requiring Adherence to International Law:Since 1804, the Supreme Court’s decision in Murray v. The Schooner Charming Betsy has required domestic statutes to be interpreted consistently with international law whenever possible.As the Supreme Court in INS v. Cardoza-Fonseca observed that in enacting the 1980 Refugee Act, “one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees,” it would seem that interpreters of our asylum laws should look to international law interpretations of that treaty for guidance.Recent examples in which this has not been the case include the just-published “death to asylum” regulations that will completely gut the 1980 Refugee Act of any meaning; as well as regulations that bar asylum for conduct falling far, far short of the severity required to bar refugee protection under international law (which a federal district court blocked in Pangea v. Barr).
As the Board seems disinclined to listen to the Supreme Court on this point, it is hoped that the Biden Administration would codify the Charming Betsy doctrine in regulations, which should further require the BIA, Immigration Judges, and Asylum Officers to consider UNHCR interpretations of the various asylum provisions, and require adjudicators to provide compelling reasons for rejecting its guidance.
Do you think there is a way to use Karen’s article to make this into a talking point across the advocacy community? I think there’s merit to trying to normalize an idea over time. Just a thought.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
I agree, Jeffrey! Ironically, as Karen shows, “normalizing” refugee and asylum processing to bring it into alignment with the Convention was one of the driving forces behind enactment of the Refugee Act of 1980. Indeed, it’s reflected in a key early interpretation of the Act by the Supremes in INS v. Cardoza-Fonseca (successfully argued by our friend and Round Table colleague Hon. Dana Marks, a “Founding Mother of U.S. Refugee Law”). In rejecting the USG’s restrictive interpretation, the Court consulted the U.N. Handbook while making the point that the refugee definition was to be applied generously so that even those with only a 10% chance of persecution could qualify.
I also note that the abandonment of the “Acosta test,” which I relied on in Kasinga, in favor of a more convoluted, restrictive, and ultimately intellectually dishonest approach, went “into high gear” after the “Ashcroft purge” had removed the core of BIA Judges who spoke up for asylum rights and protection, even when in dissent!
Unfortunately, Administrations of both parties have feared honest and robust implementation of the Refugee Act that truly follows the “spirit of Cardoza and its BIA progeny, Matter of Mogharrabi.” They all have had their “favored” and “feared” groups of refugees and asylees, some more than others.
This, of course, breeds huge inconsistencies and arbitrary adjudications, a problem exposed well over a decade ago by Professors Schoenholtz, Schrag, and Ramji-Nogales in their critical seminal work Refugee Roulette describing the largely unprincipled and politicized operation of our system for adjudicating protection claims.
At some level, all Administrations have given in to the false idea that protection of refugees is politically perilous and that consequently the law should be interpreted and manipulated to “deter” the current “politically disfavored” groups of refugees. Not surprisingly, the latter are usually those of color, non-Christian religions, or from poorer countries where the mis-characterization of groups of legitimate refugees as “mere economic migrants” has become routine. Too often, the so-called “mainstream media” accepts such negative characterizations without critical analysis.
Unfortunately, the Biden Administration has regressed from a somewhat enlightened beginning with the never-promulgated “gender based regulation” mentioned by Karen to a position of fear, desperation, and ultimately “false deterrence.” Apparently, they perceive that GOP nativist lies and shamless fear-mongering combined with their own failure to boldly reform and materially improve the asylum processing system under their control are “scoring points” with the electorate.
The latest misguided proposal being considered in the White House would grotesquely miss the mark of addressing the real glaring problems with our asylum system at the border and beyond. That is the overly restrictive interpretations and applications of the refugee definition, too many poorly-qualified and poorly-trained adjudicators, over-denial leading to protracted litigation and inconsistent results, uninspiring leadership, and a stubborn unwillingness to set up the system in compliance with international rules so that significant numbers of qualified refugees applying at the border can be timely and properly admitted to the U.S. where, incidentally, their skills and determination can contribute greatly to our economy and our society.
The latest bad idea is truncating the already overly-summary and poorly run asylum process in apparent hopes of more quickly denying more potentially valid claims with less consideration. See, e.g.,https://www.politico.com/news/2024/05/08/biden-migrants-asylum-changes-00156865. Far from being a panacea for the much-feared and highly distorted “border issue,” it eventually will aggravate all of the problems highlighted by Karen.
One thing it won’t do, however, is stop forced migrants from coming to the United States, even if they must abandon our broken legal system to do so. That’s what forced migrants do! Pretending otherwise and misusing our legal protection system for rejection won’t “deter” the reality of forced migration.
Amy E. Pope Director General International Organization for Migration PHOTO: IOMFilippo Grandi United Nations High Commissioner for Refugees PHOTO: UNHCR
Pope is the Director General (DG) of the International Organization for Migration; Grandi is the UN High Commissioner for Refugees
F
rom the sands of the Sahel to the waters of the Mediterranean, from the wilderness of the Darien in Central America to the Bay of Bengal, millions of refugees and migrants journey along routes that are synonymous with desperation, exploitation and lost lives. As the heads of the two U.N. agencies that protect and support people on the move, we believe this is one of the great global challenges of our time.
The loudest political response has been to claim that only tougher action can resolve it. Most recently, a number European states have announced plans to “offshore” or simply deport asylum seekers and/or make conditions around immigration and asylum more hostile.
Such plans are increasingly in vogue. They are also wrong. They overly concentrate on deterrence, control and law enforcement, and disregard the fundamental right to seek asylum. This approach is ineffective and irresponsible, leaving people stranded or compelling them to take even greater risks.
We do not want to understate the scale of the challenge created by today’s population movements. But to meet it, bigger thinking and bolder leadership are needed. The right strategy would tackle every stage of the journey, through a comprehensive and route-based approach of engagement. So, what should such a strategy look like?
First, we need to address the issues that compel people to leave home in the first place. Resolving conflicts, improving security, reinforcing human rights, providing sustained and reliable financial support to boost growth and resilience—all address the root causes of displacement and migration by investing in people’s futures. Failing to make these investments and cutting development aid are false economies.
Nonetheless, millions of people have no choice but to leave home—protracted conflicts, widescale rights abuses, intolerable poverty, and the devastating effects of climate change are just some of the causes. Yet the same point applies: offer hope and opportunity and people will take it.
. . . .
Two ingredients are essential for our proposals to succeed: cooperation and real responsibility-sharing between governments, even in these divisive times; and attention to every part of the journey. An approach focused mainly on deterrence will fail—indeed, it is already failing.
“Offer hope and opportunity and people will take it!” That’s essentially what the Supremes said 35 years ago in the landmark decision INS v. Cardoza-Fonseca requiring a suitably generous interpretation and application of the international “refugee” definition that also governs asylum.
Over the next several decades, slow but noticeable progress was made toward “realizing the full promise of Cardoza.” At one point, largely as a result of some Court of Appeals interventions, and a few positive BIA precedents granting asylum in the mid to late 1990’s, the “combined protection granted rate” for asylum, withholding, and CAT by EOIR, the primary precedent-setter and adjudicator of asylum law in the Executive Branch, exceeded 60% for those actually able to get to merits hearings in the somewhat haphazard system.
However, over the past several Administrations most of that progress has been reversed, sometimes intentionally, other times negligently. The dysfunction, mounting backlogs, poor precedents, lack of asylum expertise, endless “any reason to deny gimmicks,” and the dreaded “Aimless Docket Reshuffling” have made a mockery of justice for asylum seekers at EOIR. It has also generated a tidal wave of failure and mindless attempts by the USG to evade the rule of law and their responsibilities to fairly adjudicate asylum claims that goes far beyond our borders.
None of the nativist, restrictionist, proposals now being discussed in the Senate would help this situation! Indeed, they would undoubtedly make everything worse in the long run! They will also compromise our national security and enrich and embolden human smugglers and cartels. Nativist deterrence is definitely a “lose-lose proposition” even if many U.S. politicos are unwilling or unable to admit that!
In many ways, the “head in the sand” approach of prosperous nations to human migration reminds me of their past attempts to deny or ignore the effect of climate change — something that is directly related to forced migration and not adequately addressed by the post WW II refugee framework.
I was heartened to see among the recommendations in this article:
But this is not just about policies and strategies. It means engaging more closely with the people in mixed movements, such as offering practical and legal advice on accessing protection, to guidance on applying for third-country options. Such a chain of engagement might require new, bespoke models of collaboration but, if done strategically, would address a range of situations.\
Volunteer retired judges from various State and Federal systems could potentially assist the USG and NGOs by advance screening applicants, inside and outside the U.S., for asylum with an eye toward helping individuals make good choices and directing those unable to meet the current refugee and asylum criteria to humane alternatives. It’s exactly the type of new, creative, “model of collaboration” (and cost efficiency) that the authors recommend!
Given the current state of the world, with active wars on several fronts, and many corrupt and/or repressive governments, it’s highly likely that forced migration will continue to increase in the foreseeable future. That makes it essential that developed nations work with each other and humanitarian experts on viable, durable solutions that recognize the complexity, the opportunities, and the inevitability of human migration.
On Meet the Press today, Sen. Lindsey Graham (R-SC) spouted virtually every “border myth” in the book, without much effective pushback from moderator Kristen Welker. In particular, Welker continued her practice of not featuring any experts who actually work with forced migrants at the border. Meanwhile, Graham was unwilling to condemn Trump’s Hitlerian language about immigrants “poisoning the blood” despite numerous opportunities by Welker for him to do so.
What Graham didn’t do, and Welker didn’t press him on, was establish any connection between eliminating asylum and either reducing terrorist threats or fighting drug smuggling which has been shown time and again to have little or nothing to do with individuals struggling to get appointments through “CBP One” or turning themselves in to CBP upon entry to submit to asylum screening.
Additionally, Graham continued to repeat, without evidence (other than one lame anecdote), the nativist claim that almost nobody coming to the border has a legitimate fear of return. That contradicts almost all reports from those who actually work with forced migrants at the border and elsewhere. It’s also remarkable because the vast majority of those who have been allowed into the U.S. in the past year have not had an opportunity to document and present their claims in the fair merits hearing required by law. Yet the “border debate” remains largely one-sided and reality free!
That’s not to minimize the failure of the Biden Administration to heed expert advice and make major administrative, personnel, and expertise changes in the asylum adjudication system and the Immigration Courts on “Day One.” Nor does it excuse their failure to set up an organized, mutually beneficial, system for resettling those screened the into the country away from border points of entry.
Again, the absence of coherent rational discussion of asylum adjudication by experts by Meet the Press and other so-called “mainstream media” is both telling and disturbing. Certainly, internationally-recognized experts like Filippo Grande and Amy Pope must be available to Welker. Why don’t we ever hear from them?
Demand that Congress and the Biden Administration stop the toxic nonsense of “trading” the lives and rights of forced migrants for bombs and weapons to fight foreign wars. It’s time to get serious about developing immigration and refugee policies that operate in the “real world” of human migration, eschew expensive, cruel, proven to fail “deterrence only,” and give primacy to the humanity and rights of migrants and the opportunities they present for our world’s future!
Elizabeth Gibson Managing Attorney National Immigrant Justice Center Publisher of “The Gibson Report”
How much of Ukraine will look like this by war’s end? Photo from Previous Russia-Ukraine War by Wojciech Zmudzinski Creative Commons License
Weekly Briefing
briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The content of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.
CONTENTS (jump to section)
PRACTICE ALERTS
NEWS
LITIGATION & AGENCY UPDATES
RESOURCES
EVENTS
PRACTICE ALERTS
Virtual EOIR Registration: For new attorney registration, practitioners are no longer required to go to the court personally to show an ID. However, they still may appear personally. To coordinate identification verification please contact: Tina.Barrow@usdoj.gov or by phone at 717-443-9157.
Adjustment-Ready Cases: DHS is filing motions for dismissal for about 1,000 cases nationwide for Adjustment-Ready Cases (ARCs) to allow for pursuit of relief before USCIS. If you don’t want the case dismissed, timely file your opposition.
ICE Appointment Scheduler: Now available in Spanish, French, Portuguese, and Haitian Creole in addition to English.
Hill: Immigration restrictionists celebrated that the bill includes funding increases for ICE and Customs and Border Protection, but worried that the Biden administration will not use those funds to implement the Trump-style strict enforcement measures they favor…“The budget gives ICE money to fund over 5,000 more beds than proposed in funding bills introduced last year in both the House and Senate. These funding levels directly contradict commitments made by the Biden administration and members of Congress to reduce the immigration detention system,” Mary Meg McCarthy, executive director of the National Immigrant Justice Center, said in a release.
WaPo: Advocates for immigrants said they welcomed many of the Biden administration’s early changes, such as ending the travel ban and increasing the number of refugees allowed into the United States. But they said the most recent spending bill increases funding for immigration enforcement and complained that Biden has not kept his campaign promise to end privately run detention, which accounts for the majority of the ICE system.
NYT: The tension has also resonated inside the White House, where senior officials have been anxious that unwinding the Trump-era border restrictions would open the United States to an increase in illegal crossings at the southern border and fuel Republican attacks that Mr. Biden is too lenient on illegal immigration.
NYT: More than 4,100 Russians crossed the border without authorization in the 2021 fiscal year, nine times more than the previous year. This fiscal year, which began Oct. 1, the numbers are even higher — 6,420 during the first four months alone.
RollCall: Now, embassies have shuttered in Russia, Belarus and Ukraine. That could increase pressure on other consular posts in the region already feeling the weight of a visa backlog of nearly half a million cases.
AP: All Florida government agencies would be barred from doing business with transportation companies that bring immigrants to the state who are in the country illegally under a bill sent to Gov. Ron DeSantis on Wednesday.
Miami Herald: Nearly 200 Haitian migrants were returned to Haiti on Friday by the U.S. Coast Guard after their bid to reach U.S. shores ended with their overloaded sailboat running aground behind a wealthy North Key Largo resort in the Upper Florida Keys and some of their compatriots making a harried dash to freedom in the choppy waters. See also Black Immigrants to the U.S. Deserve Equal Treatment.
NYT: Although the bureau did not say how many people it missed entirely, they were mostly people of color, disproportionately young ones. The census missed counting 4.99 of every 100 Hispanics, 5.64 of every 100 Native Americans and 3.3 of every 100 African Americans.
Buzzfeed: Immigration and Customs Enforcement agents obtained millions of people’s financial records as part of a surveillance program that fed the information to a database accessed by local and federal law enforcement agencies, according to a letter sent Tuesday by Sen. Ron Wyden to the Department of Homeland Security inspector general requesting an investigation into whether the practice violated the US Constitution.
Forbes: “International student enrollment at U.S. universities declined 7.2% between the 2016-17 and 2019-20 academic years, before the start of the Covid-19 pandemic,” according a new analysis from the National Foundation for American Policy (NFAP). “At the same time, international student enrollment at Canadian colleges and universities increased 52% between the 2016-17 and 2019-20 academic years, illustrating the increasing attractiveness of Canadian schools due to more friendly immigration laws in Canada, particularly rules enabling international students in Canada to gain temporary work visas and permanent residence.”
Law360: A Salvadoran woman urged the U.S. Supreme Court to review an Eleventh Circuit decision greenlighting her deportation based on a decades-old removal order issued after she voluntarily left the country, saying the ruling conflicted with Fifth and Seventh Circuit precedents.
Law360: The Second Circuit on Thursday revived an asylum application from a man who says he fled political violence in Guinea, finding a string of errors in an immigration judge’s determination that he wasn’t credible.
LexisNexis: Dissent: I respectfully dissent from this court’s denial of rehearing en banc on the issue of whether to grant Chevron deference to the Board of Immigration’s (“Board”) recent interpretation of § 1101(a)(43)(S), providing that an aggravated felony under the INA is “an offense relating to the obstruction of justice, perjury or subornation of perjury, or bribery of a witness.” …Namely, this decision is the first and only to uphold the Board’s 2018 redefinition as reasonable—repudiating the Ninth Circuit’s 2020 decision. Accordingly, by no longer requiring a nexus element, this opinion expands the list of possible state crimes that could trigger immigration deportation consequences for many persons who may not have been otherwise subject to deportation. This is a sizeable impact for many people in our country.
LexisNexis: The Government indicates that the matter should be remanded, in part, to the BIA for consideration of her request for voluntary departure in light of Niz-Chavez. Thus, the petition for review is granted as to the stop-time issue, and this matter is remanded to the BIA for consideration under Niz-Chavez and other relevant precedents.
LexisNexis: The Board granted one extension but denied a second, suggesting that Oluwajana instead submit his brief with a motion seeking leave to file it late. When he did so, less than two weeks after the submission deadline, the Board denied the motion in a cursory-and factually erroneous-footnote. And having rejected the brief, the Board upheld the removal order without considering Oluwajana’s allegations of error by the immigration judge. Based on the undisputed circumstances of this case, we conclude that the Board abused its discretion by unreasonably rejecting Oluwajana’s brief.
Law360: The Ninth Circuit ordered the Board of Immigration Appeals on Wednesday to decide if an immigrant’s rape conviction bars deportation relief, with a dissenting judge saying the decision only delays the “unpalatable” conclusion that the man can seek a removal waiver.
BIA: When the Department of Homeland Security raises the mandatory bar for filing a frivolous asylum application under section 208(d)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1158(d)(6) (2018), an Immigration Judge must make sufficient findings of fact and conclusions of law on whether the requirements for a frivolousness determination under Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), have been met.
LexisNexis: Additionally, the respondents assert that despite informing immigration officials of their intent to get a new attorney and “sort out [their] case,” ICE officials told them that they were not priorities for deportation and there was nothing more they could do with respect to their case (Respondents’ Mot., Tab G). Accordingly, under these circumstances, we will equitably toll the filing deadline for the respondents’ motion to reopen.”
Law360: An Illinois federal judge closed the book on Chicago’s lawsuit challenging certain Trump-era conditions for recipients of a federal public safety grant on Tuesday when he put the final touches on his judgment blocking conditions for receiving the grant to resolve the case’s outlying issues.
LexisNexis: Defendant executed an I-864 Affidavit of Support; therefore, he is contractually obligated to provide Plaintiff and J.K.M.F. any support necessary to maintain their household at an income that is at least 125 percent of the Federal Poverty Guidelines. Plaintiff has received no financial support from Defendant since fleeing to a shelter on October 21, 2021…Accordingly, Plaintiff has alleged a meritorious claim against Defendant for breaching his contractual duty.
Law360: U.S. Immigration and Customs Enforcement’s New York office will overhaul its policy on people suspected of civil immigration offenses while on bond, settling claims it detained suspects beyond what the law allows without a chance to post bail.
Law360: A D.C. district court ordered the federal government to disclose the names of border officers who screened migrants’ asylum claims under a pilot program, saying Friday that asylum-seekers needed to know if they were unwittingly placed in the since-suspended project.
Law360: A woman’s suit contending she was wrongly deprived of pandemic relief payments from the IRS because of her marriage to an immigrant is barred by a federal law prohibiting court challenges that restrain tax collection, a Maryland federal court ruled.
USCIS: U.S. Citizenship and Immigration Services announced that it is updating the USCIS Policy Manual to consider deferred action and related employment authorization for noncitizens who have an approved Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, for Special Immigrant Juvenile (SIJ) classification but who cannot apply to adjust status to become a lawful permanent resident (LPR) because a visa number is not available.
AILA: DOS provided guidance for nationals in Ukraine seeking to enter the United States. The guidance clarifies information on nonimmigrant visas, immigrant visas, COVID-19 entry requirements, humanitarian parole, refugee status, and more.
AILA: EOIR updated appendix O of the policy manual with adjournment code 74. The reason is “Public Health,” and the definition is “Adjourned for public health reasons.”
You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the group page and request to be added.
Elizabeth Gibson (Pronouns: she/her/ella)
Managing Attorney for Capacity Building and Mentorship
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org
The “Top News Section” is a good rundown of the Biden Administration’s “mixed bag” on immigration policy, particularly as it relates to our largely defunct asylum system and the refugee system (still reeling from Trump-era “deconstruction”) that does not appear to be prepared for the inevitable flow of Ukrainian refugees. It also highlights some of the lingering damage to our democracy (e.g., racially biased census undercount) done by the Trump regime and its toady enablers.
My Take: Ukrainian Refugees & The U.S. Response
So far, largely meaningless political rhetoric from the Administration concerning Ukrainian refugees has been predictably “welcoming.” But, the actions to date have amounted to nothing more than taking the obvious step of granting TPS to Ukrainians actually here.
That does little or nothing to address the nearly 3 million refugees who have fled Ukraine in recent weeks. If the Administration has a coherent plan for admitting our share of those refugees and resuming processing of Ukrainians and all other refugees seeking asylum at the border, they have not announced it.
For example, despite U.S. and worldwide condemnation of China’s treatment of Uyghurs — some characterizing it as “genocide” — the Administration has done nothing to speed the processing of the very limited number of Uyghur refugees languishing in our still largely dysfunctional asylum system. If, as I’ve pointed out on numerous occasions, the Administration is unable to address “low hanging fruit” like Uyghurs and Immigration Court reform, in a bold and timely matter, how are they going to respond to more difficult human rights issues?
As this op-ed in today’s NY Times points out, “generous” responses to large-scale refugee situations are often short-lived. As refugees flows inevitably continue and grow, the initial positive responses too often “morph” into xenophobia, nativism, racism, culture wars, and restrictionism.https://www.nytimes.com/interactive/2022/03/15/opinion/ukraine-refugee-crisis.html
Ukrainian refugees have two potential “advantages” over those from Syria, Afghanistan, Iraq, Haiti, Venezuela, Ethiopia, DRC, and the Northern Triangle that could help them realize “more durable” protection. They are 1) mostly White Europeans, and 2) mostly Christian.
Neither of these is a legally recognized international criterion for defining refugees. Fact is, however, that they were not universally descriptive of those aforementioned groups who have often received less enthusiastic receptions from Western democracies. As a practical matter, “cultural attitudes” influence the Western World’s acceptance of refugees, probably to a greater extent than the actual dangers which those refugees face in the lands from which they have fled.
But, that has also been true in Haiti, Syria, Central America, the DRC and many other trouble spots. It has made little positive difference to the U.S. The Trump regime, led by Uber racist-misogynist refugee deniers “Gonzo Apocalypto” Sessions and “Gauleiter” Stephen Miller actually went out of their way to target the most vulnerable women and children fleeing persecution for further abuse.
And, to date, the Biden Administration’s promise to do better and regularize the treatment of those fleeing gender-based violence has been a huge “nothingburger.” Whatever happened to those promised “gender-based regulations” and the “common-sense recommendations” to replace the restrictionist holdover, bad-precedent-setting BIA with real judges who are experts in gender-based asylum?
The flow of refugees from Ukraine, and a much smaller (at this point) flight of dissidents from Russia, has already “exceeded projections” and is not likely to diminish in the coming weeks and months. Moreover, with Russia focusing on civilian targets and leveling parts of many major metropolitan areas in Ukraine, the essential infrastructure and “livability” of many areas is rapidly being destroyed.
Thus, even if a “truce” were declared tomorrow (which it won’t be), many who have fled would not be able to return for the foreseeable future, perhaps never, even if they wanted to. The latter is a particular risk if Russia makes good on its threats to eradicate the current Ukrainian Government and replace it with a Russian puppet regime.
Refugee planning has consistently lagged foreign policy developments even though that has been shown to be problematic over and over. When will we ever learn?
We can’t necessarily prevent all foreign wars and internal upheavals, worthy as that goal might be. But, we can learn to deal better with inevitable refugee displacements.
Indeed, that was the purpose of the UN Convention and Protocol on the Status of Refugees, to which we and the other major democracies are parties. That more than 70 years after the initial Convention was signed we are still groping for solutions (indeed, we have shamefully abrogated a number of our key responsibilities under both domestic and international law)to recurring, somewhat predictable, and inevitable dislocations of humanity is something that should be of concern to all.
Despite all of the nativist propaganda, the truth is that nobody wants to be a refugee and that it could happen to any of us for reasons totally beyond our control! The similarity of the lives of many Ukrainians, up until a few weeks ago, to daily life in Western Democracies has perhaps “brought home” these realities in ways that the equally bad or even worse plight of other refugees in recent times has not.
I hope that we can learn from this terrible situation and treat not only Ukrainian refugees, but all refugees, with generosity, humanity, compassion, kindness, and as we would hope to be treated if our situations were reversed. Because, in reality, nobody is immune from the possibility of becoming a refugee!
“Sir Jeffrey & Me Nijmegen, The Netherlands 1997 PHOTO: Susan Chase
Well, we’re not as young as we were. But, we’re still working together to raise awareness and advance the principles of the U.N.Convention & Protocol on the Status of Refugees and to restore due process and fundamental fairness to the dysfunctional Immigration Courts through all of our amazing colleagues on the Round Table of Former Immigration Judges.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesMe
UNHCR welcomes US decision to restore protections from gang and domestic violence
UNHCR, the UN Refugee Agency, welcomes the U.S. government’s decision announced 16 June to reverse legal rulings introduced several years ago that effectively made people forced to flee life-threatening domestic and gang violence in their home countries ineligible from being able to seek safety in the United States.
“These rulings have put the lives of vulnerable people at risk,” said Matthew Reynolds, UNHCR Representative to the United States and the Caribbean, after the U.S. Justice Department announced that the legal rulings known as Matter of A-B- and Matter of L-E-A- had been vacated in their entirety.
“Today’s decisions will give survivors fleeing these types of violence a better chance of finding safety in the United States and being treated with the basic compassion and dignity that every single person deserves. UNHCR welcomes this important humanitarian step,” Reynolds said.
UNHCR, he added, also welcomes the U.S. administration’s commitment to bringing its asylum system into line with international standards and specifically to writing new rules on determining membership of a “particular social group,” one of five grounds spelled out in the 1951 Refugee Convention defining who is entitled to international protection as a refugee.
“In keeping with international standards, a simple and broad definition of ‘particular social group’ is an essential part of a fair and efficient asylum system,” Reynolds said, adding that UNHCR stands ready and willing to support the asylum review and rulemaking process in any way requested by the U.S. government.
UNHCR, the UN Refugee Agency: 70 years protecting people forced to flee.
—
****************
The unethical and illegal “bogus precedents” issued by Sessions and Barr have cost lives! Much of the damage done to date is irreparable. So is the continuing damage resulting from the Biden Administration’s failure to reopen ports of entry to legal asylum seekers.
🆘A functioning asylum system at ports of entry, establishing a viable refugee program in or in the region of the Northern Triangle, and a wholly reformed, due process oriented EOIR with real judges who understand how to fairly and efficiently evaluate and grant asylum under the very generous standard enunciated by the BIA in Matter of Mogharrabi but never in fact uniformly applied in practice will reduce the number of individuals crossing the border between ports of entry to seek refuge. We also need the help of NGOs in providing representation to those arriving and resettlement assistance for those “screened in” for hearings.
Right now, we have no legal asylum system at our border despite very clear statutory language commanding it. That’s a BIG problem that must be addressed immediately! Clearly, the Biden Administration must cooperate with and seek help from human rights experts now outside Government including the UNHCR.
As I’ve said before many times, expert human rights leadership needs to be brought into their Biden Administration to “kick some tail,” eradicate incompetence and bias, and fix EOIR and the asylum system.
The NDPA needs to keep the pressure building for more immediate, common sense reforms to our asylum system and a legitimate EOIR of experts who function independently from DHS enforcement and politicos.
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – “Can we really be proud of this ‘policy?’ Is spineless complicity in wrongdoing really ‘enlightened policy?’ What’s the purpose of an Attorney General who lacks the courage and backbone to stand up and demand immediate reinstitution of Constitutional standards and the rule of law at the border? How do we propose to put a woman or man on Mars when we can’t institute a basic asylum system?” (AP Photo/Julia Le Duc)
“I appeal to the government of the United States to swiftly lift the public health-related asylum restrictions that remain in effect at the border and to restore access to asylum for the people whose lives depend on it, in line with international legal and human rights obligations.
I welcome the US government’s plans for much needed reform and capacity building to manage border processes and the positive steps that have been taken to exempt unaccompanied children and some families in situations of acute vulnerability from these severe restrictions. A system which allows a small number of asylum seekers to be admitted daily, however, carries with it a number of risks, and is not an adequate response. There is an urgent need to take further steps to provide access at ports of entry which remain closed to most asylum-seekers owing to the Title 42 public health order by the US Centers for Disease Control and Prevention (CDC), in place since March last year.
The Title 42 order has resulted in the expulsions of hundreds of thousands of people to Mexico or their countries of origin, denying their access to asylum procedures. Guaranteed access to safe territory and the prohibition of pushbacks of asylum-seekers are core precepts of the 1951 Refugee Convention and refugee law, which governments are required to uphold to protect the rights and lives of refugees. The expulsions have also had serious humanitarian consequences in northern Mexico.
We at UNHCR, the UN Refugee Agency, have maintained since the start of the pandemic that protecting public health and protecting access to asylum, a fundamental human right, are fully compatible. At the height of the public health emergency, many countries put in place protocols such as health screening, testing and quarantine measures, to simultaneously protect both public health and the right to seek asylum.
I encourage the US administration to continue its work to strengthen its asylum system and diversify safe pathways so asylum-seekers are not forced to resort to dangerous crossings facilitated by smugglers.
For our part, UNHCR stands ready to support the implementation of such a decision.”
***************************
The suffering of migrants continues as does the indifference of Biden officials to racial and gender injustice. Such tone deafness and spinelessness doesn’t bode well for voting rights, police reform, criminal law reform, pay equity, health care, or any other civil rights/social justice initiatives from the Biden Administration!
The Biden folks can’t keep relying on the crimes against humanity by Trump as an excuse for continuing them! Not rocket science — but it should be the number one national priority now that COVID-19 seems to be getting under control and the economy is rebounding.
We aren’t gong to solve the centuries-old problems in the Middle East tomorrow! But, we could and should begin fixing our broken and dysfunctional immigration system and Immigration Courts today (actually should have been underway since Day 1 of the Biden Administration)!
Determining Political Opinion: Problems and Solutions
Regarding political opinion, the refugee law scholar Atle Grahl-Madsen famously explained that refugee protection “is designed to suit the situation of common [people], not only that of philosophers…The instinctive or spontaneous reaction to usurpation or oppression is [as] equally valid” as the “educated, cultivated, reflected opinion.”1 A recent decision of the U.S. Court of Appeals for the Second Circuit provides an opportunity to reflect on this premise.
In Zelaya-Moreno v. Wilkinson, a young man was targeted for recruitment by MS-13. On two occasions, Zelaya directly announced to the gang’s members his reason for refusing to join: because gangs were bad for his hometown and country. Both times, the gang members responded by beating him, fracturing his arm the second time. They also threatened to kill him if he continued to refuse to join. The questions raised are whether Zelaya’s instinctive, simply-worded response expressed a political opinion, and if so, did that opinion form part of the reason for the beatings and threat?
The Immigration Judge recognized Zelaya’s statement to the gang to be a political opinion for asylum purposes. However, the IJ wasn’t persuaded from the record that Zelaya’s opinion was why the gang beat him. As expressed by the IJ, the beatings were caused by “Zelaya’s refusal to join the gang, irrespective of the reasons.” It doesn’t seem that the IJ considered whether the gang members imputed a political opinion to the act of refusal per se.
On appeal, the BIA took a far more extreme position, stating that because gangs are not political organizations and their activities are not political in nature, “expressing an opinion against their group is not expressing a political opinion.” This happens to be a position that EOIR and DHS (in defiance of much circuit case law and expert opinion to the contrary) later sought to codify in regulations that fortunately remain enjoined at present.
The Second Circuit in Zelaya-Moreno rejected the Board’s narrow view of political opinion. In fact, the court only last year, in its decision in Hernandez-Chacon v. Barr, recognized the act of resisting rape by members of the very same gang in El Salvador as the expression of a feminist, anti-patriarchy political opinion. Significantly, the victim in that case hadn’t stated any opinion to the gang members; it was only years later in front of the immigration judge that she gave her reason for resisting as “because I have every right to.”
As it has done in other decisions, the Second Circuit emphasized the need for a “complex and contextual factual inquiry” in political opinion determinations. It conducted a survey of cases in which political opinion was found, and of others in which it wasn’t. Unfortunately, the majority upheld the decision that Zelaya had not expressed a political opinion to the MS-13 members, stating that “[s]o far as the record shows, his objection to them is not rooted in any sort of disagreement with the policies they seek to impose nor any ideology they espouse.”
“So far as the record shows” is critical. I haven’t seen the record in this case, but I believe it might serve to demonstrate that while Grahl-Madsen correctly assigned equal validity to the opinions of the commoner and the intellectual, in practice, claims brought by members of the former group often require assistance from the latter in persuading adjudicators of the political nature of their words or actions.
For example, in Hernandez-Chacon, context for the petitioner’s resistance was provided by the affidavit of a lawyer and human rights expert who was able to articulate the patriarchal gender bias in Salvadoran society from which a political opinion could be gleaned from the asylum-seeker’s act of resistance alone. In another decision cited by the court, Alvarez-Lagos v. Barr, the Fourth Circuit was able to rely on the explanation of two experts on Central American gangs that the petitioner’s refusal to comply with extortion demands would be viewed by the gang as “political opposition” and “a form of political disobedience.”
In Zelaya-Moreno, the dissenting judge (in an opinion worth reading) was able to draw a political inference from the facts alone. It seemed that the two judges in the majority required more. But in finding the statements or actions of an applicant alone to be insufficient, is our present system of refugee protection genuinely designed to suit the situation of common people as well as philosophers?
In the view of the dissenting judge, yes. In that judge’s words, Zelaya “sought refuge here after standing up to MS members, refusing their demands that he join them, and informing them that he did not support them and considered them a blight on his native El Salvador. Our asylum laws protect individuals like Zelaya-Moreno who face persecution for such politically courageous stands.”
But in the view of the majority, Zelaya had expressed nothing “more than the generalized statement ‘gangs are bad.’ Thus, we cannot conclude that Zelaya holds a political opinion within the meaning of the statute, and therefore that the BIA erred in concluding that he was not eligible for asylum on this ground.” Would additional documentation providing the complex, contextual analysis the court mentioned earlier in its decision have delivered the two judges in the majority to the place already reached by their dissenting colleague?
The United Nations High Commissioner on Refugees is a good reference source on such issues. In its Guidance Note on Refugee Claims Relating to Victims of Organized Crimes, UNHCR stated at para. 45 that in its view, “political opinion needs to be understood in a broad sense to encompass “any opinion on any matter in which the machinery of State, government, society, or policy may be engaged.” It continued at para. 47 that powerful gangs such as MS-13 may exercise de facto power in certain areas, and their activities and those of certain State agents may be closely intertwined. At para. 50, UNHCR stated that “rejecting a recruitment attempt may convey anti-gang sentiments as clearly as an opinion expressed in a more traditional political manner by, for instance, vocalizing criticism of gangs in public meetings or campaigns.” And at para. 51, UNHCR added that “[p]olitical opinion can also be imputed to the applicant by the gang without the applicant taking any action or making a particular statement him/herself. A refusal to give in to the demands of a gang is viewed by gangs as an act of betrayal, and gangs typically impute anti-gang sentiment to the victim whether or not s/he voices actual gang opposition.”
Had this document been included in the record, would it have been enough to persuade the majority that the BIA had erred in rejecting Zelaya’s claim that he was targeted on account of his political opinion? If so, how many pro se asylum applicants would understand the need to supplement their claims to provide this context, or know what type of document would be sufficient, or how to find it?
The Seventh Circuit had foreseen this problem 15 years ago. In a 2006 decision, Banks v. Gonzales, the court opined that Immigration Court needs its own country experts, who would operate much as vocational experts do in disability hearings before the Social Security Administration’s judges. In my opinion, an alternative approach would be for EOIR to follow the example of the Immigration and Refugee Board of Canada, which maintains National Documentation Packages that are referenced in all cases by adjudicators of refugee claims.
During my time in government, I oversaw the creation of country condition pages on EOIR’s Virtual Law Library, which were built, and continue to be updated, by EOIR’s Law Library staff. However, EOIR did not see fit to make its contents part of the records of hearing in asylum cases. It is for this reason that UNHCR’s Eligibility Guidelines For Assessing International Protection Needs of Asylum Seekers in El Salvador, which contains much of the same language as the Guidance Note quoted above, and which expresses the specific conclusion that “persons perceived by a gang as contravening its rules or resisting its authority may be in need of international refugee protection on the grounds of their (imputed) political opinion,”2 is found on EOIR’s own website on the country page for “El Salvador,” yet wasn’t even considered in Zelaya-Moreno.
Considering the growing number of pro se applicants, the lack of legal resources available to those held in remote detention facilities, and the short time frame to prepare for hearings in certain categories of cases, I can’t see why the EOIR country pages should not be made part of the hearing record here as in Canada. It’s possible that such a policy would have led to a different result in Zelaya.
Furthermore, the BIA hears plenty of cases involving expert opinions supporting the conclusion that those resisting gangs such as MS-13 were harmed on account of their political opinion. Issuing precedent opinions recognizing the context that politicizes statements and actions such as Zelaya’s would result in much greater efficiency, consistency, and fairness in Immigration Court and Asylum Office adjudications.
Realistically, I harbor no illusions that the recent change in administration will bring about such enlightened changes to asylum adjudication anytime soon. But we must still continue to argue for such change. As the dissenting opinion in Zelaya stated in its conclusion: “[w]hile it may be too late for Zelaya-Moreno, the BIA and the Department of Justice can right this wrong for future asylum seekers. I urge them to reconsider their approach to anti-gang political opinion cases to ensure those who stand up to fearsome dangers are welcomed into this country rather than forced back to face torture and death.” As noted above, it wouldn’t take much effort on EOIR’s part to accomplish this.
Notes:
Atle Grahl-Madsen, The Status of Refugees in International Law, 228, 251 (1966) (quoted in Deborah E. Anker, The Law of Asylum in the United States (2020 Ed.) § 5:17, fn. 3.
UNHCR Eligibility Guidelines For Assessing International Protection Needs of Asylum Seekers in El Salvador at 29-30.
Copyright 2021 Jeffrey S. Chase. All rights reserved.
Reprinted with permission.
************************
Truly wonderful, Jeffrey! One of your “best ever,” in my view! (And, they are all great, so that’s saying something.)
Imagine what could be achieved at the BIA with real judges, experts in asylum law, thoughtful, practical analysis, intellectual leadership, and inspiration to a fairer future, rather than the current Clown Show 🤡🦹🏿♂️ inventing bogus ways to ”get to no!”
As Jeffrey demonstrates, we could choose to protect rather than to reject. There has always been a tendency to do the latter at the DOJ; but, under White Nationalist nativist Jeff Sessions and his successors it has gone “hog wild” — rejection has been falsely portrayed as a “duty” rather than an extremely poor choice and an abdication of moral and legal responsibility!
Today’s BIA is basically incapable of problem solving. Time and again their strained, stilted anti-immigrant, anti-due-process, pro-worst-practices interpretations not only spell doom for those coming before them, but also promote inefficiency and backlogs in an already overwhelmed system. They also send messages of disdain and disrespect for the rights and humanity of people of color that redounds throughout our struggling U.S. Legal System.
I’ll keep saying it:Whatever positive message Judge Garland and his team at DOJ intend to send about racial justice will be fatally undermined as long as “Dred Scottification” and disdain for the due process rights of migrants is the “order of the day” at the one Federal Court System the DOJ runs: The U.S. Immigration Court! As long as EOIR is a “bad joke” the rest of Judge Garland’s reforms will fall flat!
The right judges 🧑🏽⚖️ at the BIA could turn this thing around! Remains to be seen if it will happen. But, it’s not rocket science. It just requires putting the right folks in charge, in place, and giving them the support and independence to engage in “creative problem solving.”
Judge Garland should be confirmed next week. And the confirmation hearings for Lisa Monaco (DAG) and Vanita Gupta (AAG) have been scheduled.
Some additional points:
The dissenter in the Second Circuit’s decision in Zelaya-Moreno v. Wilkinson is Judge Rosemary Pooler. Judge Pooler has had a long and distinguished career. Perhaps she would like to cap it off by becoming Chair of the BIA and leading by example;
Shows the importance of experts, which is probably why the BIA has gone out of its way to demean them and encourage IJs to ignore their evidence;
Jeffrey’s analysis supports my “Better BIA for a Better America” 🇺🇸program;
As Justice Sotomayor says: “It is not justice.” That’s my view on today’s EOIR!
President-elect Joe Biden will name Katie Tobin as the senior director for transborder security on the National Security Council, according to multiple sources familiar with the appointment.
. . . .
That Tobin would be offered a job that usually prioritizes border security over the plight of asylum seekers or refugees could signal how the Biden administration sees that role. It could mean a Biden White House will emphasize helping the world’s refugees instead of giving them the cold shoulder like the Trump administration did. Personnel, as they say, is policy.
. . . .
*****************
Read Alex’s complete report at the link.
Katie is a friend and one of my “personal heroes.” A true “Renaissance person,” leader, and inspiration to the “new generation” of public policy/good government advocates, she has accomplished so much good in such a short time!
One of the many things I appreciated about about Katie was her willingness to return to Arlington regularly for our “summer brown bag career series” and inspire the upcoming generation of interns and aspiring lawyers to embrace careers in furthering sane, rational, empirically-soundpolicies that melded immigration with human rights, due process, social justice, and public service!
News like this makes me believe that under President Biden, America is finally back on track for a better and brighter future where courage, expertise, humanity, and practical problem solving for the common good will be respected and encouraged. Real leaders like Katie, with so much to offer America, the world, and humanity willpave the way for a better, brighter future for all!
As one mutual friend and colleague said on learning of the appointment, “The new Administration’s best pick yet!” I concur!
Congrats, Katie! You make us all proud and hopeful for America’s future!🇺🇸🗽⚖️👍🏼
Nick MIroff, Joshua Partlow, and Josh Dawsey report for the WashPost:
November 21 at 10:18 PM
Central Americans who arrive at U.S. border crossings seeking asylum in the United States will have to wait in Mexico while their claims are processed under sweeping new measures the Trump administration is preparing to implement, according to internal planning documents and three Department of Homeland Security officials familiar with the initiative.
According to DHS memos obtained by The Washington Post on Wednesday, Central American asylum seekers who cannot establish a “reasonable fear” of persecution in Mexico will not be allowed to enter the United States and would be turned around at the border.
The plan, called “Remain in Mexico,” amounts to a major break with current screening procedures, which generally allow those who establish a fear of return to their home countries to avoid immediate deportation and remain in the United States until they can get a hearing with an immigration judge. Trump despises this system, which he calls “catch and release,” and has vowed to end it.
Among the thousands of Central American migrants traveling by caravan across Mexico, many hope to apply for asylum due to threats of gang violence or other persecution in their home countries. They had expected to be able to stay in the United States while their claims move through immigration court. The new rules would disrupt those plans, and the hopes of other Central Americans who seek asylum in the United States each year.
Trump remains furious about the caravan and the legal setbacks his administration has suffered in federal court, demanding hard-line policy ideas from aides. Senior adviser Stephen Miller has pushed to implement the Remain in Mexico plan immediately, though other senior officials have expressed concern about implementing it amid sensitive negotiations with the Mexican government, according to two DHS officials and a White House adviser with knowledge of the plan, which was discussed at the White House on Tuesday, people familiar with the matter said.
The White House did not immediately respond to a request for comment.
According to the administration’s new plan, if a migrant does not specifically fear persecution in Mexico, that is where they will stay. U.S. Citizenship and Immigration Services is sending teams of asylum officers from field offices in San Francisco, Washington, and Los Angeles to the ports of entry in the San Diego area to implement the new screening procedures, according to a USCIS official.
To cross into the United States, asylum seekers would have to meet a relatively higher bar in the screening procedure to establish that their fears of being in Mexico are enough to require immediate admission, the documents say.
“If you are determined to have a reasonable fear of remaining in Mexico, you will be permitted to remain in the United States while you await your hearing before an immigration judge,” the asylum officers will now tell those who arrive seeking humanitarian refuge, according to the DHS memos. “If you are not determined to have a reasonable fear of remaining in Mexico, you will remain in Mexico.”
Mexican border cities are among the most violent in the country, as drug cartels battle over access to smuggling routes into the United States. In the state of Baja California, which includes Tijuana, the State Department warns that “criminal activity and violence, including homicide, remain a primary concern throughout the state.”
The new rules will take effect as soon as Friday, according to two DHS officials familiar with the plans.
Katie Waldman, a spokeswoman for DHS, issued a statement late Wednesday saying there are no immediate plans to implement these new measures.
“The President has made clear — every single legal option is on the table to secure our nation and to deal with the flood of illegal immigrants at our borders,” the statement says. “DHS is not implementing such a new enforcement program this week. Reporting on policies that do not exist creates uncertainty and confusion along our borders and has a negative real world impact. We will ensure — as always — that any new program or policy will comply with humanitarian obligations, uphold our national security and sovereignty, and is implemented with notice to the public and well coordinated with partners.”
A Mexican official, speaking on the condition of anonymity, said that current Mexican immigration law does not allow those seeking asylum in another country to stay in Mexico.
On Dec. 1, a new Mexican president, Andrés Manuel López Obrador, will be sworn in, and it’s also unclear whether his transition team was consulted on the new asylum screening procedures.
The possibility that thousands of U.S.-bound asylum seekers would have to wait in Mexico for months, even years, could produce a significant financial burden for the government there, especially if the migrants remain in camps and shelters on a long-term basis.
There are currently 6,000 migrants in the Tijuana area, many of them camped at a baseball field along the border, seeking to enter the United States. Several thousand more are en route to the city as part of caravan groups, according to Homeland Security estimates.
U.S. border officials have allowed about 60 to 100 asylum seekers to approach the San Ysidro port of entry each day for processing.
Last week, BuzzFeed News reported that U.S. and Mexican officials were discussing such a plan.
Mexico also appears to be taking a less-permissive attitude toward the new migrant caravans now entering the country.
Authorities detained more than 200 people, or nearly all of the latest caravan, who recently crossed Mexico’s southern border on their way to the United States. This is at least the fourth large group of migrants to cross into Mexico and attempt to walk to the U.S. border. They were picked up not long after crossing. The vast majority of the migrants were from El Salvador, according to Mexico’s National Immigration Institute.
After the first caravan this fall entered Mexico, President Enrique Peña Nieto’s administration offered migrants the chance to live and work in Mexico as long as they stayed in the southern states of Chiapas and Oaxaca. Most chose not to accept this deal, because they wanted to travel to the United States.
nick.miroff@washpost.com
joshua.partlow@washpost.com
josh.dawsey@washpost.com
Partlow reported from Mexico City. Dawsey reported from West Palm Beach, Fla.
Let’s see, Trump shrugs off the murder of a Washington Post journalist by Saudi Arabia’s Crown Prince, downplays Putin’s overt interference in our elections, promotes mindless nationalism of the exact type responsible for two World Wars and tens of millions of avoidable deaths, and praises massive human rights violator and murderer Kim even as the latter is duping him on nukes. So, he’s scared to stand up to anyone powerful or for ideals and values that take courage to promote and advance.
But, when it comes to bullying, demonizing, and beating up on harmless but extremely vulnerable and desperate refugees, many of them women, children, and families fleeing for their lives, he excels. What does that tell us about the lack of character of the “man,” and the total lack of judgement and regard for American values of those in the minority who put him in office and continue to prop him up?
This appears to be a reaction to: 1) Federal Courts requiring Trump to follow the law; 2) Mexico’s refusal to be bullied into signing an absurdly inappropriate and totally one-sided “safe third country” agreement; 3) Congresses failure to fund the wasteful “Wall;” and 4) the near total, yet highly predictable, failure of Trump’s racist, White Nationalist inspired “get tough” immigration enforcement policies.
The Federal Courts are likely to permanently enjoin Trump from ignoring the law that specifically allows anyone in the U.S., legally or not, to apply for asylum. Additionally, Trump encourages violence against refugees and creates unsafe, inhumane conditions on the Mexican side of the border. Consequently, the end result of Trump’s intentional “making folks wait in Mexico” policy is likely to be encouraging individuals seeking asylum to enter illegally and then turn themselves in to the authorities to apply for asylum in the U.S.
Meanwhile, the better options of working with the UNHCR and Mexico to promote a multinational approach to protection and to solve the problems in the Northern Triangle causing this humanitarian flow remain unaddressed by the Trumpsters.
Also, when will the “Face of Evil,” Stephen Miller, finally be held accountable for his consistently cowardly and racist attacks on the law and the American legal system?
José de Córdoba and Juan Montes report for the WSJ:
That day, the mothers scoured the site outside El Fuerte, a town in Sinaloa state, on Mexico’s northern Pacific Coast, looking for one of two men presumably kidnapped by cartel gunmen in recent weeks. One body had already been found in a field. The women believed the other may be nearby. In the end, they came up empty.
“This is my life,” said Mirna Medina, a forceful woman who holds the group together. “Digging up holes.”
Her son, who sold CDs by a gas station, was kidnapped in 2014. Three years later to the day, she and the other mothers of the search group dug up his remains. “I felt his presence,” she said, remembering the day and breaking out in tears. “I wanted to find him alive, but at least I found him.”
Because the missing aren’t counted as part of the country’s official murder tally, it is likely Mexico’s rate itself is higher.
The killing and the number of missing grow each year. Last year, 5,500 people disappeared, up from 3,400 in 2015. Mexico’s murders are up another 18% through September this year.
Victims’ families, mostly mothers, organize search parties, climbing down ravines or scouring trash dumps. Their technique is crude. Sometimes they hire laborers to hammer steel rods into the soil and haul them up to see if they smell like decomposition. Other times, they simply look for an exposed body part or shallow grave.
The sheer numbers of the disappeared now rival more famous cases of missing people in Latin American history.
The Disappeared, or Desaparecidos, became a chilling part of Latin America’s vocabulary during the Cold War, when security forces kidnapped, killed and disposed of the bodies of tens of thousands of leftist guerrillas as well as civilian sympathizers. The most infamous case is Argentina’s “Dirty War,” where at least 10,000 people vanished from 1976 to 1983. In Buenos Aires, mothers of the missing organized weekly vigils in front of Argentina’s presidential palace, gaining world-wide prominence.
Mexico fought its own far-smaller war against Marxist guerrillas during the 1970s. According to the government human-rights commission, 532 people went missing, and at least 275 people were summarily executed by security forces.
This time around, the horror in Mexico is bigger and its causes more complex. Many of the disappeared in recent years are believed to be the victims of violence unleashed by criminal gangs fighting to control drug routes and other lucrative businesses such as extortion, kidnapping and the theft of gasoline from pipelines, often with the complicity of police forces, government officials say.
“It’s a crisis of civilization in Mexico,” said Javier Sicilia, a poet and victims’ advocate whose son was murdered in 2011. “It’s diabolical—an unprecedented perversity to disappear human beings and erase any trace of them from the world.”
The trauma of Mexico’s missing is an open wound in the nation’s psyche. Families who can’t grieve for their loved ones spend the day alternating between doubt and despair, praying for, and dreading, the blessing of certainty.
“We don’t sleep nights, we have nightmares wondering what happened, where can he be,” said Maria Lugo, 62, whose son disappeared in 2015.
. . . .
*************************************************
Those with WSJ access can get the rest of the gruesome story at the link, along with pictures and graphs illustrating the extent of the problem.
Obviously, by no stretch of the imagination is Mexico a “Safe Third Country” for purposes of U.S. asylum law. The brazen attempt by the Trump Administration and GOP Senators led by Chuck Grassley and Mike Lee to force such an agreement down the throat of Mexico is as disingenuous as it is immoral.
It also is appalling the number of Trump Administration senior immigration officials who parrot the bogus claim that “refugees from Central America are required to apply for asylum in Mexico.” Neither international law nor U.S. law imposes such a requirement, for good reasons. Actually, the single “Safe Third Country Agreement” that we have negotiated with Canada in compliance with our immigration laws is quite circumscribed and very limited in scope. And, there are ongoing efforts in Canada to force Canada to withdraw from this agreement because of the Trump Administration’s mistreatment of asylum applicants.
Nevertheless, as I have previously pointed out, given conditions in the Northern Triangle, while Mexico isn’t a “Safe Third Country” for purposes of our law, it might well be a “safer third country,” in practical terms, for many Central American refugees and their families. It’s bigger than the Northern Triangle countries, somewhat better governed than the “failed states” of the Northern Triangle, easier and less dangerous to reach, has more economic opportunities and resettlement options, and is generally (although, sadly, not always) not as overtly hostile to refugees as is the U.S. under Trump.
To encourage (rather than attempt to force) more individuals to apply for asylum in Mexico, our Government should:
Publicly acknowledge and treat the migration from Central America as a “humanitarian situation,” rather than a law enforcement issue;
Work with the UNHCR and Mexican authorities to improve asylum processing, adjudication, and resettlement in Mexico;
Provide financial aid and incentives for Mexico to improve its asylum system (rather than law enforcement money or threats to cut off funding);
Emphasize to Central American refugees the possible benefits of applying for asylum in Mexico (or elsewhere), rather than threatening them and trying to intimidate them from coming to the U.S.
Finally, and most important, the U.S. should be taking a leadership role with the UNHCR and other countries in our hemisphere to address the endemic problems in the Northern Triangle that are creating these refugee flows.
Refugee situations are complex, on a number of levels. They won’t be solved by the simplistic approaches (a/k/a political stunts) currently being taken by the Trump Administration, including the ridiculous “Wall.” Indeed, they can’t be solved by any single country. It takes the countries of the world working together to resolve them. That’s exactly what the mechanisms set up under the U.N. Convention on Refugees were intended to do. It’s beyond foolish for our Government to ignore them.
“Arturo had his most recent hearing in December, in front of Judge Patricia Buchanan. He wore an orange jumpsuit with the initials of the Hudson County Department of Correction on the back, and his hands were shackled. The 31-year-old is five-foot-three and slim, and appeared very nervous. He sat with his team from Bronx Defenders, [Supervisory Attorney Sarah Deri] Oshiro and Law Graduate Courtney Lee, and a court-appointed translator. There was also an attorney from Immigration and Customs Enforcement, James McCarthy.
Arturo’s case is very complicated and his team has a few different claims. They are asking the court to withhold his deportation on the grounds that he’ll be persecuted or tortured if he goes back to Mexico.
“His stepfather subjected him to — during his entire childhood and adolescence — to really severe constant and consistent sexual, physical and psychological abuse,” Lee explained.
In court, she asked Arturo to recall some of the beatings and how his mother and siblings are still living in terror. He said the abuse continued even after he arrived in New York and sent his mother money to leave the man. He described in Spanish how he feared his stepfather would kill him if he moved back to Mexico, because he was the one who helped his mother escape. And he said he had no other place to live except for the town in which they reside. But Judge Buchanan appeared skeptical. She asked if he had any family in New York when he first arrived in 2004, and he said no.
Arturo’s legal team is also seeking to halt his deportation by arguing his two young children would be harmed. Immigrants who have lived in the U.S. illegally for at least 10 years can apply for a cancellation of removal if an American citizen would suffer “exceptional and unusual hardship.”
It’s a tough bar to meet, and it doesn’t help Arturo’s case that he has a few convictions for misdemeanors, including breaking a store window when he was drunk and possession of marijuana. But his advocates argued that these are minor and were related to the traumas he suffered as a child. He told the court he stopped using marijuana and alcohol after his children were born, to set a “good example.” His advocates said he also has an employer who believes in him, and wants to hire him back.
Because Arturo is the primary breadwinner, they argued deporting him would put the children at risk of homelessness. His partner, the children’s mother, is already fighting eviction proceedings. And Arturo said the stress from his detention has caused his seven year-old son to wet the bed and barely eat. But McCarthy, of I.C.E., argued that the children seem healthy and are not experiencing “exceptional and unusual hardship.”
The judge had to stop the proceedings at noon because she had too many other cases that day. She scheduled Arturo’s next hearing in February, almost a year after he was sent to detention.”
**********************************************
Go to Beth’s full article at the link for a fantastic picture of Courtney and her Supervisory Attorney Sarah Deri Oshiro. Way to go, Courtney and Sarah!
These days, in retirement, in addition to writing, I attend many events, give lots of speeches, and guest lecture at law schools and colleges, all largely directed at pointing out why refugees and other migrants make America great, the sad state of our United States Immigration Court System, the overwhelming importance of working to force our Immigration Courts to live up to their unfulfilled promise to “guarantee fairness and due process for all,” and the compelling need for reforms to make the Immigration Courts independent from the Executive Branch.
Almost everywhere I go, I run into great attorneys who once were Judicial Law Clerks or interns for the U.S. Immigration Court in Arlington, appeared in Immigration Court under clinical practice programs sponsored by local law schools (like Georgetown’s famous CALS Asylum Clinic), or are former students who took my Refugee Law and Policy (“RLP”) course at Georgetown Law in 2012-14. There are all, without exception, doing absolutely wonderful things to advance the cause of fairness and due process for migrants.
They are all over: projects like Bronx Defenders, NGOs, pro bono organizations, big law, small law, public interest law, courts, government agencies, Capitol Hill, academia, journalism, management, and administrative positions. I call them the “New Due Process Army” and they are going to keep fighting the “good fight” to force the Immigration Courts and the rest of our justice system to live up to the promise of “fairness and due process for all” whether that takes two years, ten years, twenty years, or one hundred years. If we all keep at it and support one another it will eventually happen!
Last night, I was at a very moving retirement ceremony for Shelly Pitterman, the United Nations High Commissioner for Refugees Regional Representative for the United States and the Caribbean. Fortunately, Shelly is going to remain in the human rights field, joining Mark Hetfield and the other wonderful folks over at the Hebrew Immigrant Aid Society (“HIAS”). I wish I had gotten to know Shelly better. He was repeatedly described as a dynamic leader who inspired everyone around him to perform at a higher level (just like Aaron Rodgers of the Pack), apparently even on the softball field!
In attendance were two of our “total superstar” former Arlington Immigration Court legal interns, Katie Tobin and Lindsay Jenkins, both Assistant Protection Officers (one of the most coveted jobs) with the UNHCR. Accomplished attorneys, dynamic leaders, and terrific role models in they own rights, Katie and Lindsay are using their education and experience to live out their deeply held values every day and to help make the world a fairer, more humane, and better place for all of us. Both of them represent the true values of the real America: fairness, scholarship, respect, teamwork, and industriousness (not to mention a sense of humor).
To Courtney, Katie, Lindsay, and all the other “soldiers” of the “New Due Process Army” thanks for what you are doing for all of us every day! It is an honor to know you and to have played a role, however modest, in your quest to make the world an even greater place.
