BARR CONTINUES RESTRICTIONIST ASSAULT ON IMMIGRATION COURTS: Intends To Reverse BIA Precedents Giving “Full Faith & Credit” To State Court Sentence Modifications — Another Disingenuous Request For “Amicus Briefing!”

https://www.justice.gov/eoir/page/file/1166251/download

Cite as 27 I&N Dec. 556 (A.G. 2019) Interim Decision #3954

556
Matter of Michael Vernon THOMAS, Respondent
Matter of Joseph Lloyd THOMPSON, Respondent
Decided by Attorney General May 28, 2019
U.S. Department of Justice
Office of the Attorney General
BEFORE THE ATTORNEY GENERAL
Pursuant to 8 C.F.R. § 1003.1(h)(1)(i), I direct the Board of Immigration
Appeals (“Board”) to refer these cases to me for review of its decisions. The
Board’s decisions in these matters are automatically stayed pending my
review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001).
To assist me, I invite the parties to these proceedings and interested amici to
submit briefs that address whether, and under what circumstances, judicial
alteration of a criminal conviction or sentence—whether labeled “vacatur,”
“modification,” “clarification,” or some other term—should be taken into
consideration in determining the immigration consequences of the
conviction.
The parties’ briefs shall not exceed 15,000 words and shall be filed on or
before June 28, 2019. Interested amici may submit briefs not exceeding
9,000 words on or before July 12, 2019. The parties may submit reply briefs
not exceeding 6,000 words on or before July 12, 2019. All filings shall be
accompanied by proof of service and shall be submitted electronically to
AGCertification@usdoj.gov, and in triplicate to:
United States Department of Justice
Office of the Attorney General, Room 5114
950 Pennsylvania Avenue, NW
Washington, DC 20530
All briefs must be both submitted electronically and postmarked on or
before the pertinent deadlines. Requests for extensions are disfavored.

********************************

Like Barr’s entire tenure and continued interference with Due Process and judicial independence in the Immigration Courts, it’s highly unethical.

Nobody outside the White Nationalist restrictionist enclave would have any interest in revisiting the BIA’s reasonable rulings, going back more than a decade and one-half, recognizing sentence modifications entered by judges in criminal cases, mostly in state courts. Matter of Song, 23 I&N Dec. 173 (BIA 2001) and Matter of Cota Vargas, 23 I&N Dec. 843 (BIA 2005).

Indeed, this action does not appear to have have been generated by any actual party participating in Immigration Court litigation or by any pending Circuit Court litigation. It has nothing to do with the current “border crisis” that has paralyzed this Administration’s immigration bureaucracy.

Rather, it appears to be part of a concerted politically-based attack on migrants and the independence of the Immigration Court system orchestrated by restrictionist groups outside of government who use unscrupulous and willing senior officials like Barr, and Sessions before him, as operatives.

After ignoring all of the compelling arguments favoring the current precedents, Barr will basically “adopt” or “adapt” Judge Roger Pauley’s dissenting opinion in Matter of Cota. The decision likely has already been drafted along the lines of the restrictionist groups’ agenda for stripping migrants of the few rights they still retain in what was already a bogus “court” system where the law had intentionally been skewed against them and in favor of DHS for political reasons.

The only question is whether the Article III Courts will continue to put up with Barr’s “charade of justice at Justice.” We’ll see. But, at some point, the damage to our system being inflicted by dishonest and unethical officials like Barr might become irreparable.

PWS

05-30-19

FOURTH CIRCUIT EXPOSES EOIR’S CONTINUING BIAS AGAINST REFUGEES FROM THE NORTHERN TRIANGLE — “Here, as in [two other published cases], the agency adjudicators both disregarded and distorted important aspects of the applicant’s claim.” – Orellana v. Barr — Yet 4th Cir.’s “Permissive Approach” To Malfeasance At The BIA Helps Enable This Very Misconduct To Continue! — When Will Worthy, Yet Vulnerable Asylum Applicants Finally Get Justice From Our Courts?

ORELLANA-4TH-DV181513.P

Orellana v. Barr, 4th Cir., 04-23-19, published

PANEL: MOTZ, KING, and WYNN, Circuit Judges

OPINION BY: JUDGE MOTZ

KEY QUOTE:

In reviewing such decisions, we treat factual findings “as conclusive unless the evidence was such that any reasonable adjudicator would have been compelled to a contrary view,” and we uphold the agency’s determinations “unless they are manifestly contrary to the law and an abuse of discretion.” Tassi v. Holder, 660 F.3d 710, 719 (4th Cir. 2011). These standards demand deference, but they do not render our review toothless. The agency “abuse[s] its discretion if it fail[s] to offer a reasoned explanation for its decision, or if it distort[s] or disregard[s] important aspects of the applicant’s claim.” Id.; accord Zavaleta-Policiano, 873 F.3d at 247.

Orellana contends that the IJ and the BIA did precisely this in their reasoning as to whether the Salvadoran government was willing and able to protect her.3 We must agree. Examination of the record demonstrates that the agency adjudicators erred in their treatment of the evidence presented. Here, as in Tassi and Zavaleta-Policiano, the agency adjudicators both disregarded and distorted important aspects of the applicant’s claim.

First, agency adjudicators repeatedly failed to offer “specific, cogent reason[s]” for disregarding the concededly credible, significant, and unrebutted evidence that Orellana provided. Tassi, 660 F.3d at 722; accord Ai Hua Chen, 742 F.3d at 179. For example,

3 Orellana also contends that the BIA failed to conduct separate inquiries into the Salvadoran government’s “willingness” to protect her and its “ability” to do so. See Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013) (finding legal error where the BIA considered a government’s efforts at offering protection without “examin[ing] the efficacy of those efforts”). After careful review of the record, we must reject this contention. The BIA applied the proper legal framework. It treated “willingness” and “ability” as distinct legal concepts, and it sufficiently addressed each in its order.

page9image661424240

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Orellana testified that during her third attempt to obtain a protective order in 2009, the Salvadoran family court refused to offer aid and instead directed her to the police station, which also turned her away. Yet the IJ gave this evidence no weight.

The IJ declined to do so on the theory that it was “unclear and confusing as to why exactly she was not able to get assistance from either the police or the court during these times.” But the record offers no evidence to support the view that the Salvadoran government officials had good reason for denying Orellana all assistance. Cf. Tassi, 660 F.3d at 720 (requiring agency to “offer a specific, cogent reason for rejecting evidence” as not credible). Rather, Orellana offered the only evidence of their possible motive aside from the family court officials’ claim that they were “too busy” — namely, uncontroverted expert evidence that “[d]iscriminatory gender biases are prevalent among [Salvadoran] government authorities responsible for providing legal protection to women.”

Nor did the IJ or the BIA address Orellana’s testimony, which the IJ expressly found credible, that she called the police “many times” during a twelve-year period, calls to which the police often did not respond at all. This testimony, too, was uncontroverted. To “arbitrarily ignore[]” this “unrebutted, legally significant evidence” and focus only on the isolated instances where police did respond constitutes an abuse of discretion.Zavaleta-Policiano, 873 F.3d at 248 (quoting Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009)); accord Hernandez-Avalos, 784 F.3d at 951 (“[A]n IJ is not entitled to ignore an asylum applicant’s testimony in making . . . factual findings.”).

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The agency’s analysis also “distorted” the record evidence concerning the instances of government involvement. Tassi, 660 F.3d at 719. For example, although the IJ accepted as credible Orellana’s testimony that Salvadoran family court employees rebuffed her third request for a protective order because “they were too busy” and suggested that she try again another day, the IJ inexplicably concluded from this testimony that Salvadoran family court employees “offered continued assistance” to Orellana. The IJ similarly distorted the record in finding that, in 2006, “the [family] court in El Salvador acted on [Orellana’s] behalf” when it took no action against Garcia, and in finding that, in 2009, a different Salvadoran court “attempted to assist” Orellana bydenying her the protective order that she requested.

Despite these errors, the Government asserts three reasons why the BIA’s order assertedly finds substantial evidentiary support in the record. None are persuasive.

First, the Government argues that Orellana’s own testimony established that she had “access to legal remedies” in El Salvador. But access to a nominal or ineffectual remedy does not constitute “meaningful recourse,” for the foreign government must be both willing and able to offer an applicant protection. Rahimzadeh v. Holder, 613 F.3d 916, 921 (9th Cir. 2010). As the Second Circuit has explained, when an applicant offers unrebutted evidence that “despite repeated reports of violence to the police, no significant action was taken on [her] behalf,” she has provided “ample ground” to conclude “that the BIA was not supported by substantial evidence in its finding that [she] did not show that the government was unwilling to protect [her] from private persecution.” Aliyev v.

Mukasey, 549 F.3d 111, 119 (2d Cir. 2008). Evidence of empty or token “assistance” 11

cannot serve as the basis of a finding that a foreign government is willing and able to protect an asylum seeker.

Second, the Government contends that Orellana cannot show that the Salvadoran government is unable or unwilling to protect her because she did not report her abuse until 1999 and later abandoned the legal process. But Orellana’s initial endurance of Garcia’s abuse surely does not prove the availability of government protection during the decade-long period that followed, during which time she did seek the assistance of the Salvadoran government without success. As to Orellana’s asserted abandonment of the Salvadoran legal process, we agree with the Government that an applicant who relinquishes a protective process without good reason will generally be unable to prove her government’s unwillingness or inability to protect her. But there is no requirement that an applicant persist in seeking government assistance when doing so (1) “would have been futile” or (2) “have subjected [her] to further abuse.” Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006). Here, Orellana offered undisputed evidence of both.

Finally, the Government suggests that even if the Salvadoran government had previously been unwilling or unable to help Orellana, country conditions had changed by 2009 such that she could receive meaningful protection. Because the agency never asserted this as a justification for its order, principles of administrative law bar us from

12

dismissing the petition on this basis. See SEC v. Chenery Corp., 318 U.S. 80, 94–95 (1943).4

We have often explained that an applicant for asylum is “entitled to know” that agency adjudicators “reviewed all [her] evidence, understood it, and had a cogent, articulable basis for its determination that [her] evidence was insufficient.” Rodriguez- Arias v. Whitaker, 915 F.3d 968, 975 (4th Cir. 2019); accord, e.g., Baharon, 588 F.3d at 233 (“Those who flee persecution and seek refuge under our laws have the right to know that the evidence they present . . . will be fairly considered and weighed by those who decide their fate.”). That did not happen here.

We therefore vacate the order denying Orellana asylum.5 On remand, the agency must consider the relevant, credible record evidence and articulate the basis for its decision to grant or deny relief.

************************************

  • This case is a great illustration of my speech to FBA Austin about the biased, sloppy, anti-asylum decision-making that infects EOIR asylum decisions for the Northern Triangle, particularly for women who suffered persecution in the form of domestic violence.  See “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW“
  • The respondent’s evidence of “unwilling or unable to protect” was compelling, comprehensive, and uncontested. In cases such as this, where past harm rising to the level of persecution on account of a protected ground has already occurred, the “real courts” should establish and enforce a “rebuttable presumption” that the government is unwilling or unable to protect and shift the burden of proving otherwise where it belongs — to the DHS. See https://immigrationcourtside.com/2019/04/25/law-you-can-use-as-6th-cir-veers-off-course-to-deny-asylum-to-refugee-who-suffered-grotesque-past-persecution-hon-jeffrey-chase-has-a-better-idea-for-an-approach-to-unwilling-or-unable-to/ LAW YOU CAN USE: As 6th Cir. Veers Off Course To Deny Asylum To Refugee Who Suffered Grotesque Past Persecution, Hon. Jeffrey Chase Has A Better Idea For An Approach To “Unwilling Or Unable To Control” That Actually Advances The Intent Of Asylum Law!
  • This is how “malicious incompetence” builds backlog. This case has been pending since March 2011, more than eight years.  It has been before an Immigration Judge twice, the BIA three times, and the Fourth Circuit twice. Yet, after eight years, three courts, seven judicial decisions, and perhaps as many as 17 individual judges involved, nobody has yet gotten it right! This is a straightforward “no brainer” asylum grant!
  • However, the Fourth Circuit, rather than putting an end to this continuing judicial farce, remands to the BIA who undoubtedly will remand to the Immigration Judge. Who knows how many more years, hearings, and incorrect decisions will go by before this respondent actually gets the justice to which she is entitled?
  • Or maybe she won’t get justice at all. Who knows what the next batch of judges will do? And, even if  the respondent “wins,” is getting asylum approximately a decade after it should have been granted really “justice?” This respondent actually could and should be a U.S. citizen by now!
  • To make things worse, although the DHS originally agreed that most of the facts, the “particular social group,” as well as “nexus” were “uncontested,” now, after eight years of litigating on that basis, likely spurred by Session’s White Nationalist unethical attack on the system in Matter of A-B-, the DHS apparently intends to “contest” the previously stipulated particular social group.
  • Rather than putting an end to this nonsense and sanctioning the Government lawyers involved for unethical conduct and delay, the Fourth Circuit merely “notes in passing,” thereby inviting further delay and abuse of the asylum system by the DHS and EOIR.
  • This well-documented, clearly meritorious case should have been granted by the Immigration Judge, in a short hearing, back in March 2013, and the DHS should have (and probably would have, had the Immigration Judge acted properly) waived appeal.
  • Indeed, in a functional system, there would be a mechanism for trained Asylum Officers to grant these cases expeditiously without even sending them to Immigration Court.
  • The bias, incompetence, and mismanagement of the Immigration Court system, and the unwarranted tolerance by the Article III Courts, even those who see what is really happening, is what has sent the system out of control
  • Don’t let the Administration, Congress, the courts, or anyone else blame the victims of this governmental and judicial misbehavior — the asylum seekers and their lawyers, who are intentionally being dehumanized, demeaned, and denied justice in a system clearly designed to screw asylum seekers, particularly women fleeing persecution from the Northern Triangle!
  • We don’t need a change in asylum law.  We need better judges and better administration of the Asylum Office, as well as some professionalism, sanity, and discipline from ICE and CBP about what cases they choose to place in an already overtaxed system.
  • That’s why it’s critical for advocates not to let the Article IIIs “off the hook” when they improperly “defer” to a bogus system that currently does not merit any deference, rather than exposing the misfeasance in this system and forcing it to finally comply with Constitutional Due Process of law.
  • While the statute says Article III Courts should “defer” to fact findings below, such deference should be “one and done.” In cases such as this, where EOIR has already gotten it wrong (here five times at two levels), Due Process should require “enhanced scrutiny” by the Article IIIs.
  • It’s welcome to get a correct published analysis from an Article III.
  • But, as noted by the Fourth Circuit, this is at least the third time the BIA has ignored the Fourth Circuit’s published precedents by “disregarding and distorting” material elements of a respondent’s claim. There is a name for such conduct: fraud.
  • Yet, the Fourth Circuit seems unwilling to confront either the BIA or their apologists at the Office of Immigration Litigation (“OIL”) for their unethical, incompetent, frivolous, and frankly, contemptuous behavior.
  • That’s why it’s absolutely critical for the advocacy community (the “New Due Process Army”) to keep pushing cases like this into the Article III Courts and forcing them to confront their own unduly permissive attitude toward the BIA which is helping to destroy our system of justice.
  • And, if the Article IIIs don’t get some backbone and creativity and start pushing back against the corrupt mess at EOIR, they will soon find the gross backlogs caused by “Aimless Docket Reshuffling” and “malicious incompetence” will be transferring to their dockets from EOIR.
  • Due Process Forever; complicity in the face of “malicious incompetence,” never!

PWS

05-25-19

 

 

 

CENTER FOR PUBLIC INTEGRITY: More Trump White Nationalist Lies Exposed: Facts Show That, Beyond The Compelling Legal & Humanitarian Reasons, Refugees & Asylees Are A HUGE Economic Benefit For The United States!

https://publicintegrity.org/immigration/data-defies-trump-claims-that-refugees-and-asylees-are-a-taxpayer-burden/

Madeline Buiano & Susan Ferriss report for the Center for Public Integrity

DATA DEFIES TRUMP’S CLAIMS THAT REFUGEES AND ASYLEES BURDEN TAXPAYERS

In this May 18, 2018, photo, Majed Abdalraheem, 29, a Syrian refugee and chef with meal delivery service Foodhini, prepares Moussaka, a grilled eggplant dish, at Union Kitchen in Washington. (AP Photo/Noreen Nasir)

Researchers found that between 2005 and 2014, refugees and asylees here from 1980 on contributed $63 billion more to government revenues than they used in public services.

In this post, we’re answering a question we received from Jen: What is the economic impact of refugees in the near and long term (transition time between needing assistance and adding to the economy)?

Since the beginning of his presidency, Donald J. Trump and top advisers have portrayed refugees and asylum seekers as a risky, undesirable demographic.

In 2016, Vice President Mike Pence tried to ban the resettlement of Syrian refugees while he was Indiana’s governor. A federal appeals court blocked the attempt, finding that Pence lacked evidence supporting claims that Syrian refugees were a threat to the people of Indiana. Trump, for his part, issued an order in March 2017 with language suggesting that refugees are a fiscal burden.

The order demanded that U.S. officials produce a report “detailing the estimated long-term costs of the United States Refugee Admissions Program at the Federal, State, and local levels, along with recommendations about how to curtail those costs.”

The draft report didn’t support that assumption of burden, though.

In fact, researchers found that during the 10 years between 2005 and 2014, refugees and asylees here from 1980 on contributed $63 billion more to government revenues than they used in public services. Senior administration officials, possibly including White House aide Stephen Miller, quashed the 55-page draft and submitted a three-page report instead, The New York Timesreported. Soon after, the White House released a fact sheetselectively borrowing from the draft report by noting that the U.S. “spent more than $96 billion on programs supporting or benefitting refugees between 2005 and 2014.”

There were no references to the $63 billion more in taxes that refugees put into public coffers than the value of the services they used.

This pattern of cherry picking one side of the ledger isn’t unusual for those seeking to bolster a political argument. Trump used similar cherry-picked numbers to link immigration, in general, with American wage decline and fiscal strain during his 2016 campaign, as the Center for Public Integrity reported previously.

Before diving deeper into fiscal research on refugees, though — including what the quashed draft report found in detail — it helps to understand how refugees and asylum seekers differ. Some fiscal studies, including the study Trump ordered, scrutinize both groups. It’s also helpful to understand the size of these groups compared to the U.S. population.

HOW DOES SOMEONE GAIN REFUGEE OR ASYLEE STATUS?

Refugees are fleeing persecution or war and are admitted from abroad. To vet them, U.S. officials are dispatched to interview candidates as part of a lengthy screening process. United Nations or U.S. embassy officials refer candidates to the U.S. State Department. Refugees often seek temporary shelter in neighboring countries to escape violence and threats. Many Syrian war refugees, for example, have fled to Turkey, Lebanon and Jordan. After intensive screening, approved refugees enter the U.S. with the help of resettlement organizations and must sign promissory notes to repay the U.S. government for travel costs. About 75 percent of loans are repaid within 15 years and 64 percent within five years, according to the U.S. State Department.

Asylum seekers claiming to be fleeing violence or persecution, by contrast, can present themselves at a U.S. port of entry and request to apply for asylum, as outlined in international treaties the U.S. has signed, as well as U.S. law. The law also allows foreigners to apply for asylum after they’re already inside the United States, whether they entered originally on visas or entered illegally, with some restrictions. Immigration judges review cases to determine whether the asylum applicant’s fear meets the criteria for granting refuge. Asylum seekers have a right to retain an attorney at their expense — or seek pro bono help — but they don’t have a right to an appointed attorney in proceedings.

In 2018, even as refugee numbers surged globally, the Trump administration capped refugee admissions at 45,000. Only 22,000 were ultimately admitted, mostly from the Democratic Republic of the Congo, Burma and Ukraine. Trump used his executive power to cap refugee admissions this year to a new low, for annual caps, of no more than 30,000. In 2016, under President Barack Obama, the U.S. admitted 85,000 refugees.

Trump has also sought to deter mostly Central American migrantswho are arriving often with children at the southern border and asking for asylum.

“The United States will not be a migrant camp and it will not be a refugee holding facility … not on my watch,” Trump said last year. In April of this year, after tweeting that the “country is full,” Trump unveiled an unprecedented proposal to require that asylum seekers pay an application fee. Trump argues that changes to the asylum system are needed because he believes that the vast majority of migrants are faking or exaggerating their fears — despite U.S. State Department recognition that murder rates, gang rapes and extortion are rampant in Central America, especially the main source countries of Honduras, Guatemala and El Salvador.

Refugees and asylees are a tiny fraction of the U.S. population, so it’s hard to credibly pin major national fiscal impact on either group.

Between 2009 and April 2019, a total of 648,482 refugees were admitted to the U.S., according to U.S. Department of State refugee data. That admissions total is equivalent to about 0.2 percent of the U.S. population of 328 million. Separately, between 2007 and 2017, a total of 263,215 people were granted asylum, according to the 2017 Yearbook of Immigration Statistics. That cumulative number is equivalent to about 0.08 percent of the U.S. population.

But isn’t there a backlog of asylum requests, potentially adding more people?

Yes. As of January 2019, 325,277 asylum request cases were pending. But even if all those cases were approved (they won’t be), that number would be equivalent to 0.1 percent of the U.S. population of 328 million. Further, if you were to multiply all those asylum cases by 10 — to account for an exaggerated number of family members who could benefit — that number would add up to the equivalent of 1 percent of the U.S. population.

But can’t refugees or asylees have a noticeable fiscal impact on communities, especially if the newcomers settle in groups, as immigrants often do? Yes. Let’s see what reputable studies show.

REFUGEES COME WITH NOTHING

Randy Capps is the director of research at the Migration Policy Institute, or MPI, a nonpartisan think tank based in Washington, D.C., that’s studied how refugees with a range of language skills and education integrate over time.

“Refugees come to the U.S. with nothing,” Capps said, but they “start making economic contributions right away and they’re not living off government assistance for very long.”

A 2015 MPI refugee-integration study found that between 2009 and 2011, the proportion of refugee men working was 7 percentage points higher than among their U.S.-born counterparts. Refugee women were as likely to work as U.S.-born women. Refugees’ income increased the longer they were in the country. The median income of refugees in the U.S. for at least 20 years was $31,000 higher than the median income of refugees here for five years or less.

MPI researchers also found that refugees’ use of public benefits decreases substantially over time.

Unlike other immigrants, refugees can access public health insurance and some other forms of aid when they arrive. Between 2009 and 2011, food-stamp assistance was a relatively high 45 percent for refugees for their first five years or less, the MPI study found. But food-stamp assistance fell to 16 percent among refugees here at least 20 years. Cash aid dropped from 7 percent to 2 percent for refugees in these same respective cohorts. And reliance on public health insurance fell from 24 percent to 13 percent.

Capps and his fellow authors suggested that providing English classes and job training for refugees while they’re still in camps undergoing the long vetting process could lead to even better outcomes. Ironically, the report also suggests, refugees’ high rate of employment in the U.S. could make it difficult for many to find the time to pursue more education to upgrade skills and earning potential.

Even so, as the Center reported in 2017, refugees are readily sliding into jobs in areas where labor is in short supply. Refugees from various countries are filling jobs at a Chobani facility in Twin Falls, Idaho, the world’s largest yogurt factory. And newly arrived refugees from rural areas of the Democratic Republic of the Congo and Asia are finding work at dairy farms.

In 2017, a draft of the refugee fiscal report that Trump had ordered was leaked to The New York Times, which posted it. The report was produced by the U.S. Department of Health and Human Services, whose Office of Refugee Resettlement is involved in refugee arrivals and initial integration. Research looked at both refugees and asylees.

Researchers looked at local, state and federal expenditures on refugees — as well as refugees’ tax contributions to those government coffers over the 10 years between 2005 and 2014.

The study found that 8 percent of refugees received Social Security or Social Security Disability benefits compared to 15 percent of the U.S. population. About 12 percent of refugees relied on Medicare benefits compared to 15 percent of the U.S. population.

On the other hand, 21 percent of refugees used SNAP, or food stamps, compared to 15 percent of the U.S. population. But only about 2.3 percent of refugees received TANF benefits, or cash aid, close to the same percentage as the U.S. population generally.

Overall, during the 10-year period, refugees and their non-refugee family members received $326 billion in government benefits and services, 60 percent from the federal government and 40 percent from state and local government. K-12 education accounted for 11 percent of expenditures on refugees. But that K-12 spending was only 0.4 percent of spending on K-12 nationally.

In the end, because of taxes they paid, refugees and their family members contributed more than $343 billion in revenue to federal, state and local coffers. On balance, refugees contributed $63 billion more than they received in benefits from various programs.

“In general,” researchers wrote, “after 10 years of residence those who entered the U.S. as refugees were similar to the U.S. population in terms of income and employment.”

The HHS draft also referenced research produced in various regions.

A 2012 analysis of the Cleveland, Ohio, area credited refugees with the creation of 650 jobs and $48 million worth of economic impact. A 2015 study of the Columbus, Ohio, area found that about 16,600 refugees supported more than 21,200 jobs and added $1.6 billion to the local economy.

Randy Capps of the Migration Policy Institute cautioned against putting too much faith in fiscal studies that zero in on costs alone. For example, the Federation for American Immigration Reform, or FAIR, a group that advocates slashing legal immigration, published a study in 2018 focusing on the first five years of refugee settlement and arguing that “the American taxpayer is being asked to feed, clothe and shelter” people with “few marketable job skills.”

In 2017, the Center for Public Integrity reported that U.S Department of Homeland Security staff were discussing adding an assessment of a refugee applicant’s “skills” to criteria that’s part of the foundation for the vetting process. The skills idea, confirmed by a Homeland Security spokesperson, upset U.S. refugee officers who screen applicants who’ve fled the trauma of war and persecution. It hasn’t gone anywhere.

“The [current] litmus test is: Does the person have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political

Adding a skills test would mark a profound change, Knowles said, for U.S. criteria developed in the wake of World War II, a time when the U.S. and other countries turned away some desperate Jewish refugees.

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A number of things are absolutely clear: 1) refugees and asylees are a huge benefit to the United States from any legitimate perspective; 2) we could easily absorb everyone applying for asylum status right now; 3) there is no “invasion;” 4) the country is not “full;” 5) Trump, Pence, Miller, Cotton, Perdue, and the rest of their “White Nationalist Gang” are liars.

PWS

05-22-19

 

REPORT # 2 FROM FBA, AUSTIN: Read My Speech “APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS ‘NEW DUE PROCESS ARMY’”

OUR DISTINGUISHED PANEL:

Judge Lory Diana Rosenberg, Ideas Consulting

Ofelia Calderon, Calderon & Seguin, PLC

Ben Winograd, Immigration & Refugee Appellate Center, LLP

FBA Austin — BIA Panel

APPELLATE LITIGATION IN TODAYS BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS NEW DUE PROCESS ARMY

By

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Member of the Roundtable Of Retired Immigration Judges

FBA Immigration Conference

Austin, Texas

May 18, 2019

I. INTRODUCTION

Once upon a time, there was a court system with a vision: Through teamwork and innovation be the worlds best administrative tribunals guaranteeing fairness and due process for all. Two decades later, that vision has become a nightmare.

Would a system with even the faintest respect for Due Process, the rule of law, and human life open so-called courtsin places where no legal services are available, using a variety of largely untrained judges,themselves operating on moronic and unethical production quotas,many appearing by poorly functioning and inadequate televideo? Would a real court system put out a fact sheetof blatant lies and nativist false narratives designed to denigrate the very individuals who seek justice before them and to discredit their dedicated, and often pro bono or low bono, attorneys? This system is as disgraceful as it is dysfunctional.

Today, the U.S. Immigration Court betrays due process, mockscompetent administration, and slaps a false veneer of justice on a deportation railroaddesigned to evade our solemn Constitutional responsibilities to guarantee due process and equal protection. It seeks to snuff out every existing legal right of migrants. Indeed, it is designed specifically to demean, dehumanize, and mistreat the very individuals whose rights and lives it is charged with protecting.

It cruelly betrays everything our country claims to stand for and baldly perverts our international obligations to protect refugees. In plain terms, the Immigration Court has become an intentionally hostile environmentfor migrants and their attorneys.

This hostility particularly targets the most vulnerable among us asylum applicants, mostly families, women, and children fleeing targeted violence and systematic femicidal actions in failed states; places where gangs, cartels, and corrupt officials have replaced any semblance of honest competent government willing and able to make reasonable efforts to protect its citizenry from persecution and torture. All of these states have long, largely unhappy histories with the United States. In my view and that of many others, their current sad condition is in no small measure intertwined with our failed policies over the years failed policies that we now are mindlessly doubling downupon.

My friends have given you the law.  Now, Im going to give you the facts.Lets go over to the seamy underside of reality,where the war for due process and the survival of democracy is being fought out every day. Because we cant really view the travesty taking place at the BIA as an isolated incident. Its part of an overall attack on Due Process,fundamental fairness, human decency and particularly asylum seekers, women, and children in todays weaponized”  Immigration Courts.

I, of course, hold harmless the FBA, the Burmanator,my fellow panelists, all of you, and anyone else of any importance whatsoever for the views I express this morning. They are mine, and mine alone, for which I take full responsibility. No party line, no sugar coating, no bureaucratic BS just the truth, the whole truth, and nothing but the truth, as I see it based on more than four- and one-half decades in the fray at all levels. In the words of country music superstar Toby Keith, Its me baby, with your wake-up call.

So here are my four tips for taking the fight to the forces of darkness through appellate litigation.

II. FOUR STEPS

First, If you lose before the Immigration Court, which is fairly likely under the current aggressively xenophobic dumbed downregime, take your appeals to the BIA and the Circuit Courts of Appeals. There are three good reasons for appealing: 1) in most cases it gives your client an automatic stay of removal pending appeal to the BIA; 2) appealing to the BIA ultimately gives you access to the realArticle III Courts that still operate more or less independently from the President and his Attorney General; and 3) who knows, even in the crapshoot worldof todays BIA, you might win.

After the Ashcroft Purge of 03,’’ which incidentally claimed both Judge Rosenberg and me among its casualties, the BIA became, in the words of my friend, gentleman, and scholar Peter Levinson, a facade of quasi-judicial independence.But, amazingly, it has gotten even worse since then. The facadehas now become a farce” – “judicial dark comedyif you will.

And, as I speak, incredibly, Barr is working hard to change the regulations to further dumb downthe BIA and extinguish any last remaining semblance of a fair and deliberative quasi-judicial process. If he gets his way, which is likely, the BIA will be packed with more restrictionist judges,decentralized so it ceases to function as even a ghost of a single deliberative body, and the system will be gamedso that any two hard lineBoard judges,acting as a fake panelwill be able to designate anti-asylum, anti-immigrant, and pro-DHS precedentswithout even consulting their colleagues.

Even more outrageously, Barr and his do-beesover at the Office of Immigration Litigation (OIL) intend to present this disingenuous mockery as the work of an expert tribunaldeserving so-called Chevron deference.Your job is to expose this fraud to the Article IIIs in all of its ugliness and malicious incompetence.

Yes, I know, many realFederal Judges dont like immigraton cases. Tough noogies” — thats their job!

I always tell my law students about the advantages of helping judges and opposing counsel operate within their comfort zonesso that they can get to yesfor your client. But, this assumes a system operating professionally and in basic good faith. In the end, its not about fulfilling the judges or opposing counsels career fantasies or self-images. Its about getting Due Process and justice for your client under law.

And, if Article III judges dont start living up to their oaths of office, enforcing fair and impartial asylum adjudication, and upholding Due Process and Equal Protection under our Constitution they will soon have nothing but immigration cases on their dockets. They will, in effect, become full time Immigration Judges whether they like it or not. Your job is not to let them off the hook.

Second, challenge the use of Attorney General precedents such as Matter of A-B- or Matter of M-S- on ethical grounds. The U.S. Court of Appeals for the D.C. Circuit, in a recent decision written by Judge Tatel invalidating the rulings of a military judge on ethical grounds said: This much is clear: whenever and however military judges are assigned, rehired, and reviewed, they must always maintain the appearance of impartiality.

Like military judges, Immigration Judges and BIA Judges sit on life or death matters. The same is true of the Attorney General when he or she chooses to intervene in an individual case purporting to act in a quasi-judicial capacity.

Yet, Attorney General Barr has very clearly lined himself up with the interests of the President and his partisan policies, as shown by his recent actions in connection with the Mueller report. And, previous Attorney General Jeff Sessions was a constant unapologetic cheerleader for DHS enforcement who publicly touted a White Nationalist restrictionist immigration agenda. In Sessionss case, that included references to dirty attorneysrepresenting asylum seekers, use of lies and demonstrably false narratives attempting to connect migrants with crimes, and urging Immigration Judges adjudicating asylum cases not to be moved by the compelling humanitarian facts of such cases.

Clearly, Barr and Sessions acted unethically and improperly in engaging in quasi-judicial decision making where they were so closely identified in public with the government party to the litigation. My gosh, in what justice systemis the chief prosecutorallowed to reach in and change results he doesnt like to favor the prosecution? Its like something out of Franz Kafka or the Stalinist justice system.

Their unethical participation should be a basis for invalidating their precedents.  In addition, individuals harmed by that unethical behavior should be entitled to new proceedings before fair and unbiased quasi-judicial officials in other words, they deserve a decision from a real judge, not a biased DOJ immigration enforcement politico.

Third, make a clear record of how due process is being intentionally undermined, bias institutionalized, and the rule of law mocked in todays Immigration Courts.  This record can be used before the Article III Courts, Congress, and future Presidents to insure that the system is changed, that an independent Article I U.S. Immigration Court free of Executive overreach and political control is created, and that guaranteeing due process and fundamental fairness to all is restored as that courts one and only mission.

Additionally, we are making an historical record of how those in charge and many of their underlings are intentionally abusing our constitutional system of justice or looking the other way and thus enabling such abuses. And, while many Article III judges have stood tall for the rule of law against such abuses, others have enabled those seeking to destroy equal justice in America. They must be confrontedwith their derelictions of duty. Their intransigence in the face of dire emergency and unrelenting human tragedy and injustice in our immigration system must be recorded for future generations. They must be held accountable.

Fourth, and finally, we must fight what some have referred to as the Dred Scottificationof foreign nationals in our legal system. The absolute mess at the BIA and in the Immigration Courts is a result of a policy of malicious incompetencealong with a concerted effort to make foreign nationals non-personsunder the Fifth Amendment.

And, while foreign nationals might be the most visible, they are by no means the only targets of this effort to de-personizeand effectively de-humanizeminority groups under the law and in our society. LGBTQ individuals, minority voters, immigrants, Hispanic Americans, African Americans, women, the poor, lawyers, journalists, Muslims, liberals, civil servants, and Democrats are also on the due process hit list.

III. CONCLUSION & CHARGE

In conclusion, the failure of Due Process at the BIA is part of a larger assault on Due Process in our justice system. I have told you that to thwart                                                                                                                                                                                                                                                                                                                                                                                                                                                                            it and to restore our precious Constitutional protections we must: 1) take appeals; 2) challenge the  precedents resulting from Sessionss and Barrs unethical participation in the quasi-judicial process;  3) make the historical record; and 4)  fight Dred Scottification.”  

I also encourage all of you to read and subscribe (its free) to my blog, immigrationcourtside.com, The Voice of the New Due Process Army.If you like what you have just heard, you can find the longer, 12-step version, that I recently gave to the Louisiana State Bar on Courtside.

Folks, the antidote to malicious incompetenceis righteous competence. The U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided enforce and detain to the maxpolicies, with resulting Aimless Docket Reshuffling,intentionally jacked upand uncontrollable court backlogs, and dumbed downjudicial facades being pursued by this Administration and furthered by the spineless sycophants in EOIR management will drive the Immigration Courts over the edge.  

When that happens, a large chunk of the entire American justice system and the due process guarantees that make America great and different from most of the rest of the world will go down with it. As the late Dr. Martin Luther King, Jr., said in his Letter from a Birmingham Jail, injustice anywhere is a threat to justice everywhere.

The Immigration Courts once-noble due process vision is being mocked and trashed before our very eyes by arrogant folks who think that they can get away with destroying our legal system to further their selfish political interests.

Now is the time to take a stand for fundamental fairness and equal justice under law! Join the New Due Process Army and fight for a just future for everyone in America! Due process forever! Malicious incompetencenever!

(05-17-19)

***********************************

PWS

05-20-19

 

ALL THINGS CONSIDERED: “Roundtable” Leader Judge Jeffrey Chase Tells NPR’s Michel Martin How Trump’s “Malicious Incompetence” & EOIR’s “Dysfunctional Bias” Are Increasing Backlog & Killing Due Process In Failing Immigration Court System

https://www.npr.org/2019/05/19/724851293/how-trumps-new-immigration-plan-will-affect-backlog-of-pending-cases

Here’s the transcript:

LAW

How Trump’s New Immigration Plan Will Affect Backlog Of Pending Cases

NPR’s Michel Martin speaks with Jeffrey Chase, a former immigration judge, about how President Trump’s new proposals will affect immigration courts.

MICHEL MARTIN, HOST:

This is ALL THINGS CONSIDERED from NPR News. I’m Michel Martin. Immigration, both legal and unauthorized, has been a central issue for Donald Trump since he announced his candidacy for president. Last week, he announced his plan for an overhaul to the current system, which emphasizes family ties and employment, moving to a system that would prioritize certain education and employment qualifications.

Overshadowing all of this, however, is the huge backlog of immigration cases already in the system waiting to go before the courts. More than 800,000 cases are waiting to be resolved, according to The New York Times. We wanted to get a sense of how the immigration courts are functioning now and how the new system could affect the courts, so we’ve called Jeffrey Chase. He is a retired immigration judge in New York. He worked as a staff attorney at the Board of Immigration Appeals. We actually caught up with him at the airport on his way back from a conference on national immigration law, which was held in Austin, Texas.

Mr. Chase, welcome. Thank you so much for joining us.

JEFFREY CHASE: Thank you. Yeah, it seems appropriate to be at JFK Airport talking about immigration. So…

MARTIN: It does.

CHASE: It worked out.

MARTIN: So, first of all, just – as you said, you’re just coming back from this conference. Could you just give me – just overall, what are you hearing from your colleagues, particularly your former colleagues in the courts, about how this system is functioning now? How do they experience this backlog? Is it this unending flow of cases that they can’t do anything with? Or – how are they experiencing this?

CHASE: Yeah. You know, the American Bar Association just put out a report on the immigration courts recently in which they said it’s a dysfunctional system on the verge of collapse. And that was, basically, agreed to by everybody at the conference, including sitting immigration judges. What the judges have said is that the new judges being hired are pretty much being told in their training that they’re not really judges, that instead, they should view themselves as loyal employees of the attorney general and of the executive branch of government. They are basically being trained to deny cases not to fairly consider them.

So, you know, the immigration court itself has to be neutral, has to be transparent and has to be immune from political pressures. And unfortunately, the immigration courts have always been housed within the Department of Justice, which is a prosecutorial agency that does not have transparency and which is certainly not immune from political pressures. So there’s always been this tension there, and I think they’ve really come to a head under this administration.

MARTIN: Well, the president has said that his new proposal should improve the process by screening out meritless claims. And I think his argument is that because there will be a clearly defined point system for deciding who is eligible and who is not, that this should deter this kind of flood of cases. What is your response to that?

CHASE: Yeah, I don’t think it addresses the court system at all because he’s talking – his proposal addresses, you know, the system where people overseas apply for visas and then come here when their green cards are ready. And those are generally not the cases in the courts. The courts right now are flooded with people applying for political asylum because they’re fleeing violence in Central America.

MARTIN: Well, can I just interrupt here? So you’re just saying – I guess on this specific question, though, you’re saying that this proposal to move to a system based on awarding points for certain qualifications would not address the backlog because that is not where applicants come in. Applicants who are a part of this backlog are not affected by that. Is that what you’re saying?

CHASE: Yes. Applying for asylum is completely outside of that whole point system and visa system. And that’s saying that anyone who appears at the border or at an airport and says, I’m unable to return; I’m in fear for my life, goes on a whole different track.

MARTIN: And so, finally, what would affect this backlog? What would be the most – in your view, based on your experience – the most effective way to address this backlog – this enormous backlog of cases?

CHASE: I think, to begin with, any high-volume court system – criminal courts, you know, outside of the immigration system – can only survive when you have – the two parties are able to conference cases, are able to reach pre-case settlements, are able to reach agreements on things. If you could imagine in the criminal court system, if every jaywalking case had to go through a – you know, a full jury trial and then, you know, get appealed all the way up as high as it could go, that system would be in danger of collapse as well. So I think you have to return to a system where you allow the two sides to negotiate things.

And you also have to give the judges – let them be judges. Give them the tools they need to be judges and the independence they need to be judges. And lastly, you have to prioritize the cases.

MARTIN: Before we let you go, I assume that there were different political perspectives at this conference, given that people come from all different sectors of that – of the bar. And I just wondered – and I assume that there are some there who favor more restrictionist methods and some who don’t. I was wondering, overall, was there a mood at this conference?

CHASE: I think the overall mood, even amongst the restrictionist ones – the idea that, you know, look; judges have to be allowed to be judges and have to be given the respect and the tools they need to do their job is one that’s even held by the more restrictionist ones. And although the government people aren’t allowed to speak publicly under this administration, I think privately, they’re very happy about a lot of the advocates fighting these things and bringing – making these issues more public.

MARTIN: Jeffrey Chase is a former immigration judge. He’s returned to private practice. And we actually caught up with him on his way back from an immigration law conference in Austin, Texas. We actually caught up with him at the airport in New York.

Jeffrey Chase, thank you so much for talking to us.

CHASE: Thank you so much for having me on the show.

*********************************

Go to the link for the full audio from NPR.

I agree with my friend Jeffrey that the sense at the FBA Immigration Conference in Austin, TX was that EOIR had hit “rock bottom” from all angles: ethics, bias, and competence, but amazingly was continuing in “free fall” even after hitting that bottom. It’s difficult to convey just how completely FUBAR this once promising “court system” has become after nearly two decades of politicized mismanagement from the DOJ culminating in the current Administration’s “malicious incompetence” and EOIR’s aggressive disdain for its former “Due Process mission.”

PWS

05-21-19

NBC NEWS: MIGRANT KIDS CONTINUE TO DIE IN TRUMP’S “NEW AMERICAN GULAG” — 16 Year Old Guatemalan Boy 5th “Kid Casualty” Since Dec!

https://www.nbcnews.com/news/latino/16-year-old-migrant-boy-dies-u-s-custody-5th-n1007751

Daniella Silva reports for NBC News:

A 16-year-old Guatemalan boy died Monday in immigration custody in south Texas, the fifth migrant child to die since December, Customs and Border Protection said.

The teenager, who was not identified by authorities, was apprehended after crossing the border May 13 near Hidalgo, Texas, CBP said in a statement posted Monday. The boy was transferred from the Rio Grande Valley Sector’s Central Processing Center to the Weslaco Border Patrol Station on Sunday, the statement said.

He was then due to be placed with the Health and Human Services Office of Refugee Resettlement, the agency that oversees care of unaccompanied or separated migrant children after they are initially processed by immigration authorities, the statement said.

But the boy was found unresponsive Monday morning during a welfare check, the statement said. He died at the Weslaco Station.

“The men and women of U.S. Customs and Border Protection are saddened by the tragic loss of this young man and our condolences are with his family,” acting Commissioner John Sanders said in the statement. “CBP is committed to the health, safety and humane treatment of those in our custody.”

The cause of death is unknown and the incident is being reviewed by CBP’s Office of Professional Responsibility. The Guatemalan government has been notified, the statement said.

The boy is the fifth migrant child to die since December. All of the children were Guatemalan. Asylum-seekers and other migrants from Guatemala have been fleeing a mix of violence, drought, food shortages and poverty.

On April 30, Juan de León Gutiérrez, 16, died following “several days of intensive care” at a hospital after falling ill while in the custody of the Department of Health and Human Services.

A medical examiner in Corpus Christi, Texas, said Juan had been diagnosed with a rare condition known as Pott’s puffy tumor, which can be caused by a severe sinus infection or head trauma, according to The Associated Press.

Last week, a 2½-year-old died after being hospitalized for pneumonia, following high fever and difficulty breathing after he was apprehended in early April, authorities said.

******************************************

The death toll for kids doesn’t even count some who have died or been killed in Mexico while awaiting processing that they are legally entitled to, but are not receiving in violation of law by the Administration.

Seems like rather than wasting time and money on walls, troops to string barbed wire, “remain in Mexico,” tent cities, increased detention, and using Border Patrol Agents illegally as unqualified “Asylum Officers,” the Administration should be concentrating all efforts on humanitarian care and assistance, fairly and timely processing asylum applicants at ports of entry, and granting as many asylum cases as possible under the current law to clear those cases out of the crowded system.

The existing law is actually flexible enough to deal with the current humanitarian situation if we had a competent, law-abiding Administration. However, the likely results, granting asylum to legitimate refugees fleeing situations in the Northern Triangle for which we share a great deal of responsibility, wouldn’t please the White Nationalist nativists. Just imagine using the law properly to protect deserving refugees, rather than “gaming” it to reject them.

One main purpose of the “Wilberforce Trafficking Victims Protection Act” (“TVPA”) was to insure maximum protection to minors arriving at the border. Shamefully, rather than seeing that those protections are carried out, the Trump Administration and the GOP actually seek to remove Wilberforce Protection from those who need it most, thereby paving the way for massive child exploitation and casualties. Throughout his Administration, Trump and his White Nationalist cronies have been the “best friends” and “biggest boosters” of the druggies, human smugglers, cartels, and gangs. How about an Administration that protects victims rather than enriching and enabling their persecutors and abusers?

PWS

05-20-19

REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”

OUR DISTINGUISHED PANEL:

Eileen Blessinger, Blessinger Legal

Lisa Johnson-Firth, Immigrants First

Andrea Rodriguez, Rodriguez Law

FBA Austin -Central America — Intro

JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

By

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Federal Bar Association Immigration Conference

Austin, Texas

May 17, 2019

Hi, Im Paul Schmidt, moderator of this panel. So, I have something useful to do while my wonderful colleagues do all the heavy lifting,please submit all questions to me in writing. And remember, free beer for everyone at the Bullock Texas State Museum after this panel!

Welcome to the front lines of the battle for our legal system, and ultimately for the future of our constitutional republic. Because, make no mistake, once this Administration, its nativist supporters, and enablers succeed in eradicating the rights and humanity of Central American asylum seekers, all their other enemies” — Hispanics, gays, African Americans, the poor, women, liberals, lawyers, journalists, civil servants, Democrats will be in line for Dred Scottification” — becoming non-personsunder our Constitution. If you dont know what the Insurrection Actis or Operation Wetbackwas, you should tune into todays edition of my blog immigrationcourtside.com and take a look into the future of America under our current leadersdark and disgraceful vision.

Before I introduce the Dream Teamsitting to my right, a bit of asylum history.

In 1987, the Supreme Court established in INS v. Cardoza-Fonseca that a well founded fear of persecution for asylum was to be interpreted generously in favor of asylum applicants. So generously, in fact, that someone with only a 10% chance of persecution qualifies.

Shortly thereafter, the BIA followed suit with Matter of Mogharrabi, holding that asylum should be granted even in cases where persecution was significantly less than probable. To illustrate, the BIA granted asylum to an Iranian who suffered threats at the Iranian Interests Section in Washington, DC. Imagine what would happen to a similar case under todays regime!

In the 1990s, the Legacy INSenacted regulations establishing that those who had suffered past persecutionwould be presumed to have a well-founded fear of future persecution, unless the Government could show materially changed circumstances or a reasonably available internal relocation alternative that would eliminate that well-founded fear. In my experience as a judge, that was a burden that the Government seldom could meet.  

But the regulations went further and said that even where the presumption of a well founded fear had been rebutted, asylum could still be granted because of egregious past persecutionor other serious harm.

In 1996, the BIA decided the landmark case of Matter of Kasinga, recognizing that abuses directed at women by a male dominated society, such as female genital mutilation(FGM), could be a basis for granting asylum based on a particular social group.Some of us, including my good friend and colleague Judge Lory Rosenberg, staked our careers on extending that much-need protection to women who had suffered domestic violence. Although it took an unnecessarily long time, that protection eventually was realized in the 2014 precedent Matter of A-R-C-G-, long after our forced departurefrom the BIA.

And, as might be expected, over the years the asylum grant rate in Immigration Court rose steadily, from a measly 11% in the early 1980s, when EOIR was created, to 56% in 2012, in an apparent long overdue fulfillment of the generous legal promise of Cardoza-Fonseca. Added to those receiving withholding of removal and/or relief under the Convention Against Torture (CAT), approximately two-thirds of asylum applicants were receiving well-deserved, often life-saving legal protection in Immigration Court.

Indeed, by that time, asylum grant rates in some of the more due-process oriented courts with asylum expertise like New York and Arlington exceeded 70%, and could have been models for the future. In other words, after a quarter of a century of struggles, the generous promise of Cardoza-Fonseca was finally on the way to being fulfilled. Similarly, the vision of the Immigration Courts as through teamwork and innovation being the worlds best administrative tribunals guaranteeing fairness and due process for allwas at least coming into focus, even if not a reality in some Immigration Courts that continued to treat asylum applicants with hostility.

And, that doesnt count those offered prosecutorial discretion or PDby the DHS counsel. Sometimes, this was a humanitarian act to save those who were in danger if returned but didnt squarely fit the somewhat convoluted refugeedefinition as interpreted by the BIA. Other times, it appeared to be a strategic move by DHS to head off possible precedents granting asylum in close casesor in emerging circumstances.

In 2014, there was a so-called surgein asylum applicants, mostly scared women, children, and families from the Northern Triangle of Central America seeking protection from worsening conditions involving gangs, cartels, and corrupt governments.There was a well-established record of femicide and other widespread and largely unmitigated gender-based violence directed against women and gays, sometimes by the Northern Triangle governments and their agents, other times by gangs and cartels operating with the knowledge and acquiescence of the governments concerned.

Also, given the breakdown of governmental authority and massive corruption, gangs and cartels assumed quasi-governmental status, controlling territories, negotiating treaties,exacting involuntary taxes,and severely punishing those who publicly opposed their political policies by refusing to join, declining to pay, or attempting to report them to authorities. Indeed, MS-13 eventually became the largest employer in El Salvador. Sometimes, whole family groups, occupational groups, or villages were targeted for their public acts of resistance.

Not surprisingly in this context, the vast majority of those who arrived during the so-called surgepassed credible fearscreening by the DHS and were referred to the Immigration Courts, or in the case of unaccompanied minors,to the Asylum Offices, to pursue their asylum claims.

The practical legal solution to this humanitarian flow was obvious help folks find lawyers to assist in documenting and presenting their cases, screen out the non-meritorious claims and those who had prior gang or criminal associations, and grant the rest asylum. Even those not qualifying for asylum because of the arcane nexusrequirements appeared to fit squarely within the CAT protection based on likelihood of torture with government acquiescence upon return to the Northern Triangle. Some decent BIA precedents, a robust refugee program in the Northern Triangle, along with continued efforts to improve the conditions there would have sealed the deal.In other words, the Obama Administration had all of the legal tools necessary to deal effectively and humanely with the misnamed surgeas what it really was a humanitarian situation and an opportunity for our country to show human rights leadership!

But, then things took a strange and ominous turn. After years of setting records for deportations and removals, and being disingenuously called soft on enforcementby the GOP, the Obama Administration began believing the GOP myths that they were wimps. They panicked! Their collective manhooddepended on showing that they could quickly return refugees to the Northern Triangle to deterothers from coming. Thus began the weaponizationof our Immigration Court system that has continued unabated until today.

They began imprisoning families and children in horrible conditions and establishing so-called courtsin those often for profit prisons in obscure locations where attorneys generally were not readily available. They absurdly claimed that everyone should be held without bond because as a group they were a national security risk.They argued in favor of indefinite detention without bond and making children and toddlers represent themselvesin Immigration Court.

The Attorney General also sent strong messages to EOIR that hurrying folks through the system by prioritizingthem, denying their claims, stuffingtheir appeals, and returning them to the Northern Triangle with a mere veneer of due process was an essential part of the Administrations get toughenforcement program. EOIR was there to send a messageto those who might be considering fleeing for their lives dont come, you wont get in, no matter how strong your claim might be.

They took judges off of their established dockets and sent them to the Southern Border to expeditiously remove folks before they could get legal help. They insisted on jamming unprepared cases of recently arrived juveniles and adults with childrenin front of previously docketed cases, thereby generating total chaos and huge backlogs through what is known as aimless docket reshuffling(ADR).

Hurry up scheduling and ADR also resulted in more in absentiaorders because of carelessly prepared and often inadequate or wrongly addressed noticessent out by overwhelmed DHS and EOIR court staff. Sometimes DHS could remove those with in absentia orders before they got a chance to reopen their cases. Other times, folks didnt even realize a removal order had been entered until they were on their way back.

They empowered judges with unusually high asylum denial rates. By a ratio of nine to one they hired new judges from prosecutorial backgrounds, rather than from the large body of qualified candidates with experience in representing asylum applicants who might actually have been capable of working within the system to fairly and efficiently recognize meritorious cases, promote fair access to pro bono counsel, and insure that doubtful cases or those needing more attention did not get lostin the artificial backlogs being created in an absurdly mismanaged system. In other words, due process took a back seat to expedienceand fulfilling inappropriate Administration enforcement goals.

Asylum grant rates began to drop, even as conditions on the ground for refugees worldwide continued to deteriorate. Predictably, however, detention, denial, inhumane treatment, harsh rhetoric, and unfair removals failed to stop refugees from fleeing the Northern Triangle.

But, just when many of us thought things couldnt get worse, they did. The Trump Administration arrived on the scene. They put lifelong White Nationalist xenophobe nativists Jeff Sessions and Stephen Miller in charge of eradicating the asylum process. Sessions decided that even artificially suppressed asylum grant rates werent providing enough deterrence; asylum seekers were still winning too many cases. So he did away with A-R-C-G- and made it harder for Immigration Judges to control their dockets.

He tried to blame asylum seekers and their largely pro bono attorneys, whom he called dirty lawyers,for having created a population of 11 million undocumented individuals in the U.S. He promoted bogus claims and false narratives about immigrants and crime. Perhaps most disgustingly, he was the mastermindbehind the policy of child separationwhich inflicted lifetime damage upon the most vulnerable and has resulted in some children still not being reunited with their families.

He urged judgesto summarily deny asylum claims of women based on domestic violence or because of fear of persecution by gangs. He blamed the judges for the backlogs he was dramatically increasing with more ADR and told them to meet new quotas for churning out final orders or be fired. He made it clear that denials of asylum, not grants, were to be the new normfor final orders.

His sycophantic successor, Bill Barr, an immigration hard-liner, immediately picked up the thread by eliminating bond for most individuals who had passed credible fear. Under Barr, the EOIR has boldly and publicly abandoned any semblance of due process, fairness, or unbiased decision making in favor of becoming an Administration anti-asylum propaganda factory. Just last week they put out a bogus fact sheetof lies about the asylum process and the dedicated lawyers trying to help asylum seekers. The gist was that the public should believe that almost all asylum seekers from the Northern Triangle are mala fide and that getting them attorneys and explaining their rights are a waste of time and money.

In the meantime, the Administration has refused to promptly process asylum applicants at ports of entry; made those who have passed credible fear wait in Mexicoin dangerous and sometimes life-threatening conditions; unsuccessfully tried to suspend the law allowing those who enter the U.S. between ports of entry to apply for asylum; expanded the New American Gulagwith tent cities and more inhumane prisons dehumanizingly referred to as bedsas if they existed without reference to those humans confined to them;  illegally reprogrammed money that could have gone for additional humanitarian assistance to a stupid and unnecessary wall;and threatened to dumpasylum seekers to punishso-called sanctuary cities.Perhaps most outrageously, in violation of clear statutory mandates, they have replaced trained Asylum Officers in the credible fearprocess with totally unqualified Border Patrol Agents whose job is to make the system adversarialand to insure that fewer individuals pass credible fear.

The Administration says the fact that the credible fearpass rate is much higher than the asylum grant rate is evidence that the system is being gamed.Thats nativist BS! The, reality is just the opposite: that so many of those who pass credible fear are eventually rejected by Immigration Judges shows that something is fundamentally wrong with the Immigration Court system. Under pressure to produce and with too many biased, untrained, and otherwise unqualified judges,many claims that should be granted are being wrongfully denied.

Today, the Immigration Courts have become an openly hostile environment for asylum seekers and their representatives. Sadly, the Article III Courts arent much better, having largely swallowed the whistleon a system that every day blatantly mocks due process, the rule of law, and fair and unbiased treatment of asylum seekers. Many Article IIIs continue to deferto decisions produced not by expert tribunals,but by a fraudulent court system that has replaced due process with expediency and enforcement.

But, all is not lost. Even in this toxic environment, there are pockets of judges at both the administrative and Article III level who still care about their oaths of office and are continuing to grant asylum to battered women and other refugees from the Northern Triangle. Indeed, I have been told that more than 60 gender-based cases from Northern Triangle countries have been  granted by Immigration Judges across the country even after Sessionss blatant attempt to snuff out protection for battered women in Matter of A-B-. Along with dependent family members, that means hundreds of human lives of refugees saved, even in the current age.

Also significantly, by continuing to insist that asylum seekers from the Northern Triangle be treated fairly in accordance with due process and the applicable laws, we are making a record of the current legal and constitutional travesty for future generations. We are building a case for an independent Article I Immigration Court, for resisting nativist calls for further legislative restrictions on the rights of asylum seekers, and for eventually holding the modern day Jim Crowswho have abused the rule of law and human values, at all levels of our system, accountable, before the court of historyif nothing else!

Eventually, we will return to the evolving protection of asylum seekers in the pre-2014 era and eradicate the damage to our fundamental values and the rule of law being done by this Administrations nativist, White Nationalist policies.Thats what the New Due Process Armyis all about.

Here to tell you how to effectively litigate for the New Due Process Army and to save even more lives of deserving refugees from all areas of the world, particularly from the Northern Triangle, are three of the best ever.I know that, because each of them appeared before me during my tenure at the Arlington Immigration Court. They certainly brightened up my day whenever they appeared, and I know they will enlighten you with their legal knowledge, energy, wit, and humanity.

Andrea Rodriguez is the principal of Rodriguez Law in Arlington Virginia. Prior to opening her own practice, Andrea was the Director of Legal Services at the Central American Resource Center (CARECEN). She is a graduate of the City University of New York Law and George Mason University.  

Eileen Blessinger is the principal of Blessinger Legal in Falls Church, Virginia. Eileen is a graduate of the Washington College of Law at American University.  In addition to heading a multi-attorney practice firm, she is a frequent commentator on legal issues on television and in the print media.

Lisa Johnson-Firth is the principal of Immigrants First, specializing in removal defense, waivers, family-based adjustment, asylum and Convention Against Torture claims, naturalization, U and T visas, and Violence Against Women Act petitions. She holds a J.D. from Northeastern University, an LLB from the University of Sheffield in the U.K., and a B.A. degree from Allegheny College.

Andrea, starting with you, whats the real situation in the Northern Triangle and the sordid history of the chronic failure of state protection?

PWS

05-20-19

 

 

KERWIN & WARREN @ CMS: No, We Don’t Need To Spend More Money On “Designed To Fail” Border Enforcement — What We Need Is A Smarter, More Competent, Less Corrupt Government!

https://cmsny.org/publications/essay-kerwin-warren-051619/

The Trump administration came into office at a time when illegal border crossings from Mexico had been reduced to one-fourth from their historic highs and the US undocumented population had been falling for a decade. At present, the administration enjoys the largest immigration enforcement budget in US history, but in fiscal year (FY) 2019 the Department of Homeland Security (DHS) is on track to apprehend the highest numbers of border crossers in more than a decade. In both March and April, the Border Patrol recorded more than 100,000 apprehensions at the US-Mexico border. Its border enforcement strategies are failing on their own terms and, until the United States reassesses its overall immigration and refugee policies, further enforcement funding would be throwing good money after bad.

Customs and Border Protection (CBP) needs increased staffing and better infrastructure at certain ports of entry (POEs), where large quantities of illegal narcotics enter the country and illegal firearms and drug proceeds leave it. It may also need to expand its capacity to respond in real time to changed migration patterns. However, lack of resources does not explain the administration’s failures. Rather, it is its failure to respond adequately to the conditions driving Central American and (increasingly) Venezuelan migrants, to provide legal pathways to protection for those fleeing violence and other impossible conditions, and to create a strong, well-resourced US asylum system.[1]

Historically Unprecedented Immigration Enforcement Spending

In 1990, the total appropriation to the Immigration and Naturalization Service (INS) — for both immigration enforcement and adjudication of applications — was $1.2 billion. By 2018, the enacted budgets of the two DHS immigration enforcement agencies, CBP and Immigration and Customs Enforcement (ICE), equaled a combined $23.8 billion (DHS 2019, 21, 27). This figure does not include the significant immigration enforcement responsibilities and expenditures of: (1) US Citizenship and Immigration Services (USCIS), which primarily adjudicates immigration applications; (2) the Department of State (DOS), the Department of Justice (DOJ), and other federal agencies; (3) the federal criminal justice system, which prosecutes and adjudicates a high volume of illegal entry and re-entry offenses (TRAC 2017, 2018); and (4) the many states and localities officially delegated by ICE to enforce US immigration laws through programs like 287(g) (ICE 2018). While enforcement expenditures have increased, investments in the USCIS Asylum Corps and the Immigration Court system have lagged badly behind, leading to massive case backlogs and long delays in adjudicating cases (Kerwin 2018).

The president’s budget for 2020 would increase combined CBP and ICE funding to $30.2 billion (DHS 2019, 21, 27). Moreover, the Trump administration has set “operational control” — defined as “the prevention of all unlawful entries”[2] — as its overarching border enforcement goal and metric. Because unattainable, this goal positions the administration to argue that border enforcement resources — however much they are increased — do not suffice, and to respond to its own failures by insisting on additional enforcement funding and ever more divisive and cruel enforcement tactics, like separating children from their parents.

According to a study by the Migration Policy Institute, the funding and staffing levels of CBP and ICE exceed the combined levels of the four major DOJ law enforcement agencies (Meissner et al. 2013). These two agencies also receive many times more in funding than the three main US labor standards and workplace protection entities and all the state labor standards agencies combined.

The Changed Composition of Border Crossers, the Diminishing US Unauthorized Population, and the Border Wall

On February 15, 2019, the President declared a national emergency at the US-Mexico border which, if it withstands legal scrutiny, will allow the administration to redirect an estimated $8 billion appropriated for other purposes, primarily from the Department of Defense, to extending the wall at the US-Mexico border. The proposed increases follow years of dramatically reduced arrivals across the border that have transformed the US undocumented population.

Apprehensions at the border — which include multiple entries of the same person — dropped from more than 1.6 million in 2000 to about 300,000 in 2017 even though the size of the Border Patrol more than doubled, from 9,200 in 2000 to 19,400 in 2017 (CBP 2017a,b). Between 2010 and 2017, the total undocumented population fell from 11,725,000 to 10,665,000, spurred by a 1.3 million decrease in the number of Mexican undocumented residents (Warren 2019).  Moreover, since 2010 the number of persons that illegally crossed has been roughly one-half of the number that entered legally and overstayed their visas, undermining the case for a border wall (ibid.).

Beginning in FY 2014 and continuing through FY 2019, immense numbers of unaccompanied children and families, primarily from the Northern Triangle states of Central America, have been driven to the United States, Mexico, and elsewhere by some of the world’s highest homicide rates, rampant extortion and conscription by gangs, criminal impunity, and intense poverty (Labrador and Renwick 2018). The number of migrants from Venezuela — a country in economic free fall and with very high rates of violent crime — has also increased sharply in recent years. Honduras, Venezuela, El Salvador, and Guatemala rank among the nations with world’s highest intentional homicide rates at 1st, 2nd, 5th, and 6th respectively (World Atlas 2018).  Many of these migrants have sought asylum in the United States, but mostly they are seeking protection wherever they can find it. They do not try to evade detection, but present themselves to Border Patrol agents or to CBP officials at POEs. CBP adds them to its “apprehension” statistics, as if they were criminals, but they have the legal right to seek asylum under both domestic and international law.

Enforcement-Only Approaches Are Counterproductive

Notwithstanding its extraordinary border enforcement budget, the Trump administration has presided over the highest numbers of border crossers in a decade. After peaking in 2000 and with the exception of a slight surge in FY 2014, arrests at the US-Mexico border were at or below 400,000 between 2011 and 2018.  Over the first six months of FY 2019, however, Border Patrol apprehensions spiked to more than 361,000 (CBP 2019). Additional enforcement funding will do nothing to address the humanitarian crises compelling hundreds of thousands of persons to seek protection for themselves and their children, however slim the odds of finding it.

Human smugglers should not be viewed as a cause of this crisis, but as a symptom of bad policies. Some smugglers commit unspeakable acts. Others do not and enjoy the trust of members of migrant-sending communities. In any event, migrants mostly understand the risks of migrating and do not make decisions based solely on what smuggling facilitators tell them. Dr. Gabriella Sanchez, Migrant Smuggling Research Fellow at the European University Institute, reports that potential migrants “gather as much information as they can from friends, family members, clergy, media, and smugglers themselves, and make their decisions based on what they learn.”  Moreover, they are not cavalier about their children’s safety. They are willing to subject themselves to greater risks than they would others, particularly their loved ones (Slack and Martinez 2018).

By all accounts, the administration’s policies have been a boon to smugglers. The administration has failed to provide legal avenues for the truly desperate to reach protection, both persons fleeing violence and formerly deported persons seeking to return to their US families.[3] Instead, it has erected new barriers to the US asylum system, separated parents from their children at the border, enacted unsustainable and cruel “zero tolerance” criminal prosecution policies for asylum seekers and other border crossers, and terminated the Central American Minors (CAM) program which allowed El Salvadoran, Guatemalan, and Honduran children to undergo refugee screening in their own countries and, if approved, to join their legally present parents living in United States as refugees or parolees. At a time of record numbers of refugees worldwide, it has limited refugee admissions to the lowest number in the history of the US Refugee Assistance Program and sought to eviscerate the Temporary Protected Status (TPS) program, which allows designated national groups who cannot safely return home to remain in the United States.

These actions have been accompanied by the President’s threats to end foreign aid to Mexico, El Salvador, Guatemala, and Honduras for “doing nothing” to stop migration to the United States, his repeated promises to enact ever “tougher” enforcement policies, and by his poisonous anti-immigrant rhetoric. With no legal options to migrate, little hope that conditions will improve in their home communities, and assurance (by the US president) that US policies will become more severe — most recently through threats to charge fees to apply for asylum, to deny bond and work authorization to asylum seekers, or to accelerate court hearings — large numbers have chosen not to wait at home (Wasem 2019). More border enforcement funding will do nothing to change this dynamic.

Conclusion

The United Nations High Commissioner for Refugees (UNHCR) reported that in 2017 there were 68.5 million forcibly displaced persons, including 25.4 million refugees (UNHCR 2018); that developing regions hosted 85 percent of them; and that increasing numbers of asylum seekers were fleeing Northern Central America and Venezuela (UNHCR 2018, 7, 40). These trends have grown more acute in the interim. On December 17, 2018, UN member states — albeit not the United States — affirmed the Global Compact on Refugees (GCR), which seeks to support communities in developing states that host refugees, promote refugee self-reliance, expand their legal access to third countries, and allow for their safe and dignified return home (UNGA 2019, § 7). Not all of the migrants from the Northern Triangle states of Central America, Venezuela, or other global hotspots meet the narrow refugee definition, but very high percentages of them have been forced from their homes by unsafe and untenable conditions.

The United States would be well served by the kind of holistic strategy and commitments promoted by the GCR. The nation’s current enforcement-only approach will not improve conditions so that refugees and others at risk can stay or return home. Nor will it support their safe resettlement in other communities, afford them fair and timely asylum hearings, or allow them to reach safety through legal channels. It will make this humanitarian crisis worse, and do nothing to stop desperate people from crossing borders.


[1] Although not the subject of this essay, many scholars and lawyers have also reported on the immense population of deportees from the United States that plan to return to their US families (Kerwin, Alulema, and Nicholson 2018) despite the risk of prosecution, detention, and removal. One study concluded that US immigration enforcement programs will inevitably fail “when placed against the powerful pull of family and home” (Martinez, Slack, and Martinez-Schuldt 2018).

[2] Border Security and Immigration Enforcement Improvements, Exec. Order No. 13767, 82 Fed. Reg. 8793 (Jan. 25, 2017).

[3] Of course, in any large-scale migrant flow, there will be persons with different intentions and motivations, making screening a necessity.

References

CBP (US Customs and Border Protection). 2017a. “ Southwest Border Sectors: Total Illegal Alien Apprehensions by Fiscal Year (Oct. 1st through Sept. 30th).” Washington, DC: CBP. https://www.cbp.gov/sites/default/files/assets/documents/2017-Dec/BP%20Southwest%20Border%20Sector%20Apps%20FY1960%20-%20FY2017.pdf.

———. 2017b. “US Border Patrol Fiscal Year Staffing Statistics (FY 1992 – FY 2017).” Washington, DC: CBP. https://www.cbp.gov/document/stats/us-border-patrol-fiscal-year-staffing-statistics-fy-1992-fy-2017.

———. 2019. “US Border Patrol Southwest Border Apprehensions FY 2019.” Washington, DC: CBP. https://www.cbp.gov/newsroom/stats/sw-border-migration.

DHS (US Department of Homeland Security). 2019. FY 2020 Budget in Brief. Washington, DC: DHS. https://www.dhs.gov/sites/default/files/publications/19_0318_MGMT_FY-2020-Budget-In-Brief.pdf.

ICE (US Immigration and Customs Enforcement). 2018. “Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act.” Washington, DC: ICE. https://www.ice.gov/287g.

Kerwin, Donald. 2018. “From IIRIRA to Trump: Connecting the Dots to the Current US Immigration Policy Crisis.”  Journal on Migration and Human Security 6(3): 192-204. https://doi.org/10.1177/2331502418786718.

Kerwin, Donald, Daniela Alulema, and Mike Nicholson. 2018. “Communities in Crisis: Interior Removals and their Human Consequences.” Journal on Migration and Human Security 6(4): 226-42. https://doi.org/10.1177/2331502418820066.

Labrador, Rocio Cara, and Danielle Renwick. 2018. “Central America’s Violent Northern Triangle.” Backgrounder. New York: Council on Foreign Relations. https://www.cfr.org/backgrounder/central-americas-violent-northern-triangle.

Martinez, Daniel E., Jeremy Slack, and Ricardo D. Martinez-Schuldt. 2018. “Repeat Migration in the Age of the ‘Unauthorized Permanent Resident’: A Quantitative Assessment of Migration Intentions Postdeportation.” International Migration Review52(4): 1186-217. https://doi.org/10.1177/0197918318767921.

Meissner, Doris, Donald Kerwin, Muzaffar Chishti, and Claire Bergeron. 2013. “Immigration Enforcement in the United States: the Rise of a Formidable Machinery.” Washington, DC: Migration Policy Institute. https://www.migrationpolicy.org/research/immigration-enforcement-united-states-rise-formidable-machinery.

Slack, Jeremy, and Daniel E. Martinez. 2018. “What Makes a Good Human Smuggler?  The Differences between Satisfaction with and Recommendations of Coyotes on the US-Mexico Border.” The Annals of the American Academy of Political and Social Science 676(1): 152-73.  https://doi.org/10.1177/0002716217750562.

TRAC (Transactional Records Access Clearinghouse. 2017. “Criminal Immigration Prosecutions Down 14% in FY 2017.” Syracuse, NY: TRAC. http://trac.syr.edu/tracreports/crim/494/.

———. 2018. “Stepped Up Illegal-Entry Prosecutions Reduce Those for Other Crimes.” Syracuse NY: TRAC. https://trac.syr.edu/immigration/reports/524/.

UNGA (United National General Assembly). 2018. Report of the United Nations High Commissioner for Refugees: Part II Global Compact on Refugees. UN Doc. A/73/12 (Part II). New York, NY: United Nations. https://reliefweb.int/sites/reliefweb.int/files/resources/5b3295167.pdf.

UNHCR (United Nations High Commissioner for Refugees). 2018. Global Trends: Forced Displacement in 2017. Geneva: UNHCR. https://www.unhcr.org/5b27be547.pdf.

Warren, Robert. 2019. “US Undocumented Population Continued to Fall from 2016 to 2017 and Visa Overstays Significantly Exceeded Illegal Crossings for the Seventh Consecutive Year.” Journal on Migration and Human Security 6(1): 1-4. https://doi.org/10.1177/2331502419830339.

Wasem, Ruth Ellen. 2019. “To solve the US ‘crisis at the border,’ look to its cause.” The Hill, April 4. https://thehill.com/opinion/immigration/436725-to-solve-the-us-crisis-at-the-border-look-to-its-cause.

World Atlas.  2018. “Murder Rate by Country.”  https://www.worldatlas.com/articles/murder-rates-by-country.html.

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PWS

05-18-19

RYAN BORT @ ROLLING STONE: Trump’s Immigration Strategy “Even Dumber And Crueler” Than You Might Have Thought! — Wants America To Impale Refugees On Spikes Topping “Hot Wall!”

https://apple.news/Ac-7gACUyRou92onuolAE0A

Trump’s Immigration Strategy Is Dumber and Crueler Than Anyone Knows

President Trump’s wheel of preoccupations spun back around to the border on Thursday, when he took to the White House Rose Garden to announce his administration’s new plan to overhaul federal immigration law. Trump called the proposal “a fair, modern and lawful system of immigration” that would be based primarily on merit. “If for some reason, possibly political, we can’t get the Democrats to approve this merit-based, high-security plan, then we will get it approved immediately after the election when we take back the House, keep the Senate and, of course, hold the presidency,” Trump said.

Trump was still fired up on Friday morning, tweeting that all “people that are illegally coming into the United States now will be removed from our Country at a later date as we build up our removal forces and as the laws are changed.” He added that there is a “good chance” Democrats will ultimately embrace the new plan.

Related

Stephen Miller May Have Cost Trump the Wall

Study: There’s No Correlation Between Undocumented Immigration and Violent Crime

The plan unveiled Thursday is aimed at replacing the current family-based system with one based on “merit.” Under Trump’s new system, immigrants would need to demonstrate they can speak English and support themselves financially, and also pass a civics test. Preference would be given to who already have job offers in the United States, or who have specific skills.

According to the New York Times, 12% of immigrants currently in the U.S. with visas qualified to enter based on skill. Under the new plan, the number would be closer to 60%, while the percentage of those in the country through family connections would drop precipitously. “We discriminate against genius. We discriminate against brilliance,” Donald Trump said. “We won’t anymore, once we get this passed.”

Last year, the Slovenian parents of Melania Trump became American citizens through the family-based “chain migration” system Trump has long derided.

No one outside of the administration seems to think much of the plan, the logic of which is confusing. Conservatives have been slow to offer anything resembling enthusiastic support, and some have derided it for its failure to scale down immigration numbers. Liberals have objected to just about everything, from its emphasis on skills over family, to the absence of anything to protect the status of DACA recipients — or, the undocumented immigrants brought to the United States as children — which has long been a sticking point for Democrats. After Trump announced the plan on Thursday, House Speaker Nancy Pelosi (D-CA) called it “dead on arrival” while bashing it for “gutting our asylum and refugee protections.”

The plan is the brainchild of Jared Kushner, with the help of immigration hardliner Stephen Miller, and is expected to be one of the tentpoles of Trump’s 2020 campaign. The tepid response may have had something to do with the fact that it was spearheaded by Trump’s son-in-law, a failed real estate developer who is in no way qualified to overhaul the nation’s immigration system.

On Tuesday, Kushner met with Republican senators to field questions regarding the plan. It didn’t go well, according to the Washington Post. Kushner was reportedly unable to address the concerns of lawmakers, who struggled to understand why the plan didn’t include protections for DACA recipients, an omission that ensures it will not pass through the Democrat-controlled House. “He didn’t give many details about what was in [his plan],” a source familiar with the meeting told the Post. “And there were a number of instances where people had to step in and answer questions because he couldn’t.”

Putting his son-in-law in charge of immigration is only one element of Trump’s braindead approach to the border. On Thursday, the Post reported that the president’s obsession with the aesthetics of a potential border wall is driving up costs and giving designers headaches. According to current and former administration officials, his “frequently shifting instructions and suggestions have left engineers and aides confused, and he has repeatedly insisted on cosmetic features that serve little practical purpose. For example, he has demanded the wall — which would actually be a fence — be painted black and have spikes on top, “describing in graphic terms the potential injuries that border crossers might receive.”

Trump has also insisted the fence be as tall as possible, despite warnings about inflating the cost and potential structural integrity. He has rejected the idea that the wall will take years to build and, according to the officials spoken to by the Post, “suggested that some of his friends in New York would have ideas on how to build it faster.”

The ballast to Kushner and Trump’s half-witted approach is being provided by Miller, who is making sure the administration’s approach to immigration is sufficiently cruel. Just as the extent of Trump’s long-running mania about the border wall’s appearance was not known until Thursday, several of the more evil schemes the administration has previously attempted to put into action have only been reported recently.

Last month, the Post revealed that on multiple occasions beginning last November, the administration pushed the Department of Homeland Security about transporting migrants who crossed the border seeking asylum to “sanctuary cities” across America. The action was seen by the administration as a way to punish Democrats and was devised mostly by Miller. “Stephen Miller called people at ICE, said if they’re going to cut funding, you’ve got to make sure you’re releasing people in Pelosi’s district and other congressional districts,” a congressional investigator told the Post. The plan was so vengeful and logistically ridiculous that it was essentially rejected by Immigration and Customs Enforcement.

Details of another spiteful, ultimately rejected plan came to light earlier this week, when the Post reported that the White House developed a plan to “arrest thousands of parents and children in a blitz operation against migrants in 10 major U.S. cities.”

Again, the plan, which was proposed privately earlier this year, was nixed, both by then-ICE Director Ronald Vitiello and then-Homeland Security Secretary Kirstjen Nielsen. The worry was that the “blitz” was not properly thought out and could backfire. Nielsen was also concerned that the drive to deport families would shift focus away from the administration’s goal of dealing with “criminal aliens.”

Weeks after the plan was rejected, Trump forced out both Vitiello and Nielsen. Vitiello was replaced by ICE Deputy Director Matthew Albence, who happened to support the plan. So did, you guessed it, Stephen Miller, whose extreme approach to dealing with immigration is far less likely to experience the pushback now that Trump has jettisoned Nielsen and Vitiello in an effort to take, as Trump described it, a “tougher approach” to the border. There’s no telling which other aborted plans to crack down on brown people the administration may decide to dust off now that the runway for cruelty has largely been cleared.

As Miller continues to scheme behind the scenes, the administration is pushing a half-baked plan that is effectively nothing more than a political play to the president base, which the administration is hoping might take to the idea of a a “merit-based” system. Few actual details of the plan, or how the administration is going to get the plan passed, are known. Trump did not take questions after the conclusion of his address from the Rose Garden on Thursday.

******************************

Here’s an idea.

What if we stopped wasting money on walls and other harebrained schemes; instead used the money to hire and train qualified asylum officers; advertised that those presenting themselves at ports of entry would be fairly and timely processed for asylum; granted asylum and welcomed to the U.S. those found qualified under a fair and impartial application of the law; treated those found ineligible fairly, respectfully, and humanely and gave them a chance either to depart voluntarily or be returned at government expense?

Why would anyone pay a smuggler and risk his or her life to cross the border illegally just to turn themselves in to the Border Patrol if fair, timely, and humane treatment were available at ports of entry? Why would we need a wall at all (which is next to useless in stopping real criminals and drug smugglers)?

PWS

05-18-19

SPLIT FOURTH CIRCUIT HAMMERS SCOFFLAW SESSIONS’S BOGUS RATIONALE FOR DACA TERMINATION — White Nationalist Former AG’s “Malicious Incompetence” Continues to Be “Outed” — Casa De Maryland v. DHS

Casa De Maryland v. DHS, 4th Cir., 05-17-19, published

DACA decision-May 17 2019-4thCir

PANEL: KING, DIAZ, and RICHARDSON, Circuit Judges.

OPINION BY: JUDGE DIAZ

CONCURRING AND DISSENTING OPINION: Judge Richardson

KEY QUOTE FROM MAJORITY:

Plaintiffs argue that DACA’s rescission was arbitrary and capricious because the
Department of Homeland Security failed to give a reasoned explanation for the change in policy, particularly given the significant reliance interests involved. We agree.17
17 Plaintiffs also assert that (1) the district court failed to consider evidence of “bad faith” and “animus” underlying the decision to rescind DACA presented in their complaint and (2) the Department’s conclusions about DACA’s legality are substantively incorrect. Given our disposition, we decline to address these arguments.

30

As we have explained, DACA was rescinded based on the Department’s view that the policy was unlawful. But neither the Attorney General’s September 4 letter nor the Department’s Rescission Memo identify any statutory provision with which the DACA policy conflicts. Cf. Encino Motorcars, 136 S. Ct. at 2127 (rejecting as insufficient agency statement regarding statutory exemption proffered in support of policy change where agency did not “analyze or explain” why statute should be interpreted as agency suggested).
The Attorney General’s letter does mention that the Fifth Circuit affirmed the injunction against the DAPA policy on “multiple legal grounds” in the Texas litigation, J.A. 379, and the Rescission Memo cites to this ruling. The Fifth Circuit’s ruling was based in part on its determination that the DAPA policy likely ran counter to the INA’s “intricate process for illegal aliens to derive a lawful immigration classification from their children’s immigration status.” Texas, 809 F.3d at 179. There is no dispute here, however, that “DACA has no analogue in the INA.” NAACP, 298 F. Supp. 3d at 239 (internal quotation marks omitted). Further, as the Fifth Circuit explained in reaching its conclusion, “DACA and DAPA are not identical.” Texas, 809 F.3d at 174.
The Attorney General’s letter also asserts that DACA suffered from the same “constitutional defects that the courts recognized as to DAPA.” J.A. 379. The courts in the Texas litigation, however, did not address constitutional claims. And while the Attorney General urged in his letter that his office had a duty to “defend the Constitution” and “faithfully execute the laws passed by Congress,” J.A. 379, he does not explain how
allowing the DACA policy to remain in effect would violate that duty.

The Attorney General’s letter and the Rescission Memo also proffer the concern— based on the Attorney General’s determination that the DAPA and DACA policies share the same legal defects—that “potentially imminent” litigation would result in a ruling in the Texas litigation enjoining DACA. Entirely absent, however, is an explanation why it was likely that the district court in the Texas litigation would have enjoined DACA.
Further, the 2014 OLC Opinion outlining the Department’s authority to implement the DAPA policy identified “from the nature of the Take Care duty” at least “four general…principles governing the permissible scope of enforcement discretion,” J.A. 137-38; 2014 WL 10788677, at *5-6, and noted that concerns “animating DACA were . . . consistent with the types of concerns that have customarily guided the exercise of immigration enforcement discretion,” J.A. 149 n.8; 2014 WL 10788677, at *13 n.8.
The point is that the Department had before it at the time it rescinded DACA a reasoned analysis from the office tasked with providing legal advice to all executive branch agencies that supported the policy’s legality. Yet the Department changed course without any explanation for why that analysis was faulty. Cf. Fox Television Stations, 556U.S. at 516 (“[A] reasoned explanation is needed for disregarding facts and circumstances that underlay . . . the prior policy.”).
Nor did the Department adequately account for the reliance interests that would be affected by its decision. Hundreds of thousands of people had structured their lives on the availability of deferred action during the over five years between the implementation of DACA and the decision to rescind. Although the government insists that Acting

Secretary Duke18 considered these interests in connection with her decision to rescind DACA, her Memo makes no mention of them.
Accordingly, we hold that the Department’s decision to rescind DACA was arbitrary and capricious and must be set aside.

KEY QUOTE FROM CONCURRENCE/DISSENT:

Just as in BLE, there is a nonsensical implication in the plaintiffs’ position: that the Executive’s discretion is more constrained when it gives a “reviewable” reason for its actions than when it gives no reason at all. If the Acting Secretary was wrong about the likely illegality of DACA,5 then this might mean that she had provided no lawful reason for the rescission. But in the context of the Executive’s enforcement discretion, this is perfectly appropriate. The Executive need not explain why it makes particular enforcement and non-enforcement decisions. The Judicial Branch cannot bootstrap review of decisions committed to the discretion of the other branches simply because the reasons provided are of a type that judges consider themselves competent to evaluate.
5 Evaluating the actual legality of DACA requires considering whether and how a court may adjudicate an alleged violation of the Take Care Clause. See Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 613 (1838). But it also requires addressing the distinct question of whether and how one presidential administration may determine that a previous administration’s policy was inconsistent with the constitutional obligation to take care that the nation’s immigration laws be faithfully executed. Cf. Letter from President George Washington to Sec’y Alexander Hamilton, U.S. Dep’t of the Treasury (Sept. 7, 1792) in 32 WRITINGS OF GEORGE WASHINGTON 144 (John C. Fitzpatrick ed., 1939) (writing in 1792 about enforcing unpopular tax laws, President Washington explained that it was his “duty to see the Laws executed: to permit them to be trampled upon with impunity would be repugnant to it”).

In any event, the Acting Secretary’s rescission memorandum was not a mere statement on the legality of DACA. Instead, the memorandum considered various court rulings as well as the Attorney General’s letter before concluding that the “DACA program should be terminated.” Duke Memorandum at 4 (emphasis added). She did not say that DACA must be terminated or that she lacked the legal authority to enforce DACA or a DACA-like program. And in declaring the rescission of DACA after a six- month wind-down period, the Acting Secretary invoked her statutory authority to “establish[] national immigration policies and priorities.” Id. The Acting Secretary’s legal analysis was only one aspect of her reasoning for rescinding DACA, and, of course, a prosecutor may consider beliefs about the law when setting enforcement policy, see BLE, 482 U.S. at 283.
For these reasons, I conclude that the plaintiffs’ APA claims are not reviewable and would dismiss them.

*****************************************

The “good guys” win again! The forces of White Nationalist irrationality and lawless behavior are thwarted, at least for the present.

Interestingly, Judge Titus was the only Federal Judge that I’m aware of to have upheld the Government’s termination of DACA. Even the Supremes, the majority of whom Trump widely and contemptuously advertises the GOP has “brought and paid for,” weren’t eager to intervene in the Administration’s idiotic “war on DACA, human decency, and common sense” at this point.

But, let’s not forget that we’re only at this point because the Obama Administration and the Dems failed to solve the DACA issue in 2009 and 2010. Never again!

PWS

05-17-19

 

AS TRUMP’S POLICY OF “MALICIOUS INCOMPETENCE” CONTINUES TO UNRAVEL, UNHINGED PREZ CONSIDERS MASSIVE VIOLATIONS OF CONSTITUTION & HUMAN RIGHTS — “OPERATION WETBACK 2019” In The Offing?

https://www.washingtonpost.com/politics/white-house-leaves-open-possibility-of-invoking-insurrection-act-to-remove-migrants/2019/05/17/6b49c2c4-7892-11e9-bd25-c989555e7766_story.html

John Wagner reports for the Washington Post:

A White House spokesman left often the possibility Friday that President Trump would invoke an arcane law that would allow him to deploy the military to remove illegal immigrants, as Trump warned migrants on Twitter that they could be leaving the country soon.

Asked during a television appearance whether Trump is considering using the Insurrection Act, spokesman Hogan Gidley said the president is “going to do everything within his authority to protect the American people” and has “lots of tools at his disposal.”

“We haven’t used them all, and we’re looking at ways to protect the American people,” Gidley said during an appearance on Fox News’s “Fox & Friends.”

His interview took place amid a series of tweets from Trump, including some that suggested new actions to crack down on illegal immigration.

“All people that are illegally coming into the United States now will be removed from our Country at a later date as we build up our removal forces and as the laws are changed,” Trump said in one tweet. “Please do not make yourselves too comfortable, you will be leaving soon!”

In another, Trump said “bad ‘hombres’” were being detained and would be “sent home.”

His tweets followed a Rose Garden speech on Thursday about a new immigration plan that opened him to criticism from conservatives for not pressing a harder line.

The new White House proposal seeks to prioritize the admission to the United States of high-skilled workers over those with family members who are U.S. citizens, but it does not change the net level of green cards allocated each year.

In a sign of sensitivity to criticisms from immigration hard-liners, The Post reported Thursday that Trump’s advisers are looking at measures behind the scenes such as the Insurrection Act, an arcane law that allows the president to employ the military to combat lawlessness or rebellion, to remove illegal immigrants.

The idea of using the law was first reported by the Daily Caller, a conservative news outlet, after Trump finished his speech Thursday afternoon.

Such a plan would involve deployment of the National Guard and cooperation of governors who might not be inclined to go along with Trump’s order.

Seung Min Kim, Josh Dawsey and David Nakamura contributed to this report.

*********************************

Sounds like the “brainchild” of Stephen Miller!

Nothing brings cowardly nativists to their knees more quickly than hordes of unarmed, desperate migrants seeking to exercise their legal and human rights! The Trump Administration might be “rattling the sword” with Iran, but truth is that they are scared of their own shadows. Race-baiting and threatening the weakest, most vulnerable, and defenseless among us are about the only things they know how to do.

PWS

05-17-19

WELCOME TO FRANZ KAFKA’S AMERICA: Where Individuals Are Imprisoned Indefinitely In Substandard Conditions Without Trial For The “Crime” Of Asking For Protection Under Our Legal Process — The Objective: Coerce Them To Stop Asking For The Benefits Our Law Offers & Demoralize Them To The Point Where They Would Rather Be Killed Or Tortured Than To Proceed With Their Legal Cases!

https://apple.news/ADUUhY0-QSR6JBMSznV322A

Professor Stacy Burstin writes in USA Today:

I toured an immigration detention center. The prison-like atmosphere was mind-numbing.

Immigration detention is supposed to be a temporary stop — not an endless jail sentence with the goal of causing migrants to self-deport.

4:00 am EDT May. 16, 2019

Immigration detention is supposed to be a temporary stop, not a prison. But what else can one call a place with razor wire covered fences, holding cells, head counts, locked dormitories, solitary confinement, limited recreation, inadequate mental health services and no-contact visits?

While visiting the New Mexico border area as volunteers with Catholic Charities Immigration Legal Services of Southern New Mexico in March, a group of undergraduates, three law students, a campus minister and I toured the Otero County Processing Center. Management & Training Corp. (MTC) runs the facility for the federal Immigration and Customs Enforcement service.

A smiling ICE officer greeted us at the start of our visit, explaining that ICE likes giving tours of Otero to dispel criticisms circulating about immigration detention.

Inside an immigration detention center

Our first stop was the count room dominated by a large board covered with more than 900 colored tags on hooks — mostly blue and orange — representing the detainee population and designating the level of security and privileges afforded based on jumpsuit color. “Blues” have no known criminal history and simply entered the United States without papers. “Oranges” are divided into two groups — individuals who have a history of very minor crimes such as public intoxication, and those arrested for or convicted of other nonviolent crimes. “Reds” have arrests, convictions or other history involving violent activity.

Read more commentary:

My Sharpie marker might be the only thing keeping migrant mothers and children together

An illegal immigrant killed my daughter. Trump’s right — we must complete the border wall.

Stories from the border: The women asylum seekers I met need protection, not barriers

In the intake area, we found newly arrived men lingering in a large holding cell behind a locked, metal door waiting to be processed. A security officer explained the intake procedure, but it was hard for me to focus on his words because I couldn’t take my eyes off the mountain of duffel bags and backpacks full of their belongings piled next to a shower room. I later learned that same image haunted my students.

We passed through the medical unit where individuals receive basic medical care. Those with more serious conditions, we were told, are sent outside of the facility. Our guides told us that a psychiatrist visits once a month to oversee medication, and one full-time counselor is available for the 900 or more detainees. There is a small room where detainees deemed suicidal are watched.

Our guides also brought us into one of the dorms — locked housing where 50 men sleep on thin mattresses in rows of bunk beds. I was overcome with a sense of time standing still; boredom pervaded the room. Despite MTC’s commitment to “provide an atmosphere that is comfortable, safe, and conducive to making time pass quickly for those who find themselves in our care,” individuals are limited to two hours of recreation a day.

One of the students asked whether English classes are offered. Our guide replied that they are working on it, that such programs have not been instituted because those at Otero only stay for six to eight weeks. But we met detainees who reported being there for six to eight months or more.

The blues and oranges able to secure a job in the facility (only four of the 50 men in the dorm we visited were working at the time) earn at least $1 a day, the ICE-stipulated minimum wage. I couldn’t help but wonder whether the detainees we saw raking the grounds, mopping hallways, doing laundry or preparing food allowed MTC to meet its labor needs without actually paying for them.

A glimpse through a narrow window revealed the Secured Housing Unit — the solitary confinement block — a row of small cells where individuals causing problems are sent. Men who are vulnerable to bullying or abuse (including transgender women) can also request a move here for protection, though they would have to be pretty desperate to do so.

Immigrants need asylum, not imprisonment

Facilities like Otero are not supposed to be prisons. Most ICE detainees have not been convicted of any crime. For many others, they are detained even though a U.S. court had dismissed charges, authorized release while awaiting trial, or convicted and imposed a minimal sentence already served.

None of these men belong in jail.

Yet the realization that we were in a jail only intensified at our last stop — the visiting area. We found a large glass window running the length of a long table, seats placed on either side. Detainees are kept separate from loved ones and communicate by phone.

Immigration detention is supposed to be a temporary stop for individuals seeking a determination of whether they have a legal basis for staying in the United States. Yet many at Otero are eligible to apply for asylum and other forms of humanitarian protection.

Why are U.S. taxpayers paying a private company to provide housing, food and 24/7 security for individuals, the majority of whom pose no security threat and have a right under U.S. law to seek protection?

Why are these men consigned to live in a mind-numbing, prison-like atmosphere that leads many — in Otero and similar facilities around the country — to become so desperate to get out that they abandon valid claims and self-deport?

Unfortunately, my students and I came to the troubling conclusion that this desperation is not just the inevitable result of immigration confinement, but may actually be the goal in the first place.

Stacy Brustin, professor of law, is director of the Immigrant and Refugee Advocacy Clinic at The Catholic University of America Columbus School of Law in Washington, D.C.

You can read diverse opinions from our Board of Contributors and other writers on the Opinion front page, on Twitter @usatodayopinion and in our daily Opinion newsletter. To respond to a column, submit a comment to letters@usatoday.com.

4:00 am EDT May. 16, 2019

************************************

In the final “Kafkaesque” twist, perhaps Trump’s “maliciously incompetent” immigration policies will simply convince individuals needing refuge that our legal system is as worthless and dishonest as the ones they are leaving behind.

For the right price and degree of risk (and refugees are by nature risk takers) smugglers will be able to eventually get persistent individuals to the interior. There, as I have pointed out, their chances of avoiding forced removal will be much better than their odds of getting asylum in an unfairly biased, increasingly lawless system that uses illegal coercive methods and is stacked against their claims, no matter how valid or compelling.

Right now these folks are NOT a security risk, no matter what lies Trump and the restrictionists spread. A smart, humane, competent, and law-abiding Administration would simply encourage them to arrive at ports of entry, promptly screen them, apply the asylum laws in the generous way that they were intended, integrate those granted (probably the majority, under a fair, generous application of the law, in accordance with Cardoza-Fonseca) into our society, and return those who do not qualify after full due process in a humane and dignified manner.

Why would folks cross the border between ports of entry to turn themselves in to the Border Patrol if they could present themselves at a border port and be treated promptly, humanely, and fairly? That’s what would actually give us a secure border as well as many grateful, productive new residents who will help the U.S. It would also promptly separate out those who clearly can’t qualify for protection before they establish ties to the U.S.

With a smarter, common-sense approach to the Immigration Courts, universal access to counsel, and better, more professional, judges who were actually well-trained in recognizing and granting meritorious asylum cases (and not expected to function as a “Border Patrol junior auxiliary”), asylum cases could be completed in compliance with full Due Process in months, rather than years. The Border Patrol could go back to real law enforcement, which they are largely ignoring right now in a rush to do Trump’s bidding.

Instead, Trump seems determined to create a situation where many will die, smugglers will get richer, but more individuals will get to the interior where they will live, unscreened and perhaps exploited, but alive, as part of a growing “underground” or “immigration black market.” The Border Patrol won’t even be able to count them or “arrest” (arguably an inappropriate term for
“turn ins”) them as they do now to support their bogus claims of  a “law enforcement emergency.” This self-created “emergency” — actually a humanitarian tragedy —has little to do with legitimate law enforcement. How maliciously incompetent can one Administration get?

And, no, “Trump’s Big Beautiful Wall” won’t stop professional smugglers! They are already laughing at his ineptness and anxiously waiting to see how his next nativist-driven dumb policy will improve their business and fill their coffers. The dumbest smuggler is probably smarter than Trump, and much less dangerous to America.

PWS

05-17-19

 

THE GIBSON REPORT — 05-13-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

THE GIBSON REPORT — 05-13-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

TOP UPDATES

 

Trump’s ‘Remain in Mexico’ Policy Can Continue, the Ninth Circuit Rules

Lawfare: On May 7, the Ninth Circuit stayed an injunction against the Trump administration’s “Remain in Mexico” policy. That policy, officially called the Migrant Protection Protocols (MPP), requires the return of certain migrants to Mexico pending a full immigration court hearing.

 

More Immigrants Are Giving Up Court Fights and Leaving the U.S.

Marshall Project: Last year, voluntary departure applications reached a seven-year high of 29,818 applications. In the Atlanta court, which hears cases of Irwin detainees like Zamarrón, the applications grew nearly seven times from 2016 to 2018.

 

De Blasio Defends Expanded Cooperation With ICE For ‘Serious Crimes’

Gothamist: Under a local law, the police and jails will already cooperate with ICE if they’ve detained someone convicted of any these 170 violent crimes. De Blasio said it’s appropriate to add seven more to that list because of state legislation since the 2014 law went into effect.

 

ICE announces program to allow local law enforcement to make immigration arrests

The Hill: Immigration and Customs Enforcement (ICE) on Monday announced a new program that would allow local law enforcement officers to start arresting and temporarily detaining immigrants on behalf of the agency, even if established local policies prevent them from doing so.

 

U.S. asylum screeners to take more confrontational approach as Trump aims to turn more migrants away at the border

WaPo: The Trump administration has sent new guidelines to asylum officers, directing them to take a more skeptical and confrontational approach during interviews with migrants seeking refuge in the United States. It is the latest measure aimed at tightening the nation’s legal “loopholes” that Homeland Security officials blame for a spike in border crossings.

 

HUD Says Its Proposed Limit on Public Housing Aid Could Displace 55,000 Children

NYT: Thousands of legal residents and citizens, including 55,000 children who are in the country legally, could be displaced under a proposed rule intended to prevent undocumented immigrants from receiving federal housing assistance, according to the Department of Housing and Urban Development.

 

Pentagon Shifts $1.5 Billion to Border Wall From Afghan War Budget and Other Military Projects

NYT: The acting defense secretary, Patrick Shanahan, notified Congress on Friday that he intended to shift $1.5 billion that had been designated for the war in Afghanistan and other projects to help pay for work on President Trump’s border wall. See also Shanahan says military won’t leave until border is secure.

 

White House launches new uphill bid to overhaul immigration

AP: Though similar efforts have failed to garner anywhere near the support necessary, Trump hopefully invited a dozen Republican senators to the White House to preview the plan, which was spearheaded by senior adviser and presidential son-in-law Jared Kushner. See also White House may include mandatory E-Verify in immigration proposal.

 

Fact-checking the Trump administration’s immigration fact sheet

WaPo: The five-page document, released this month, attempts to debunk 18 claims about immigration to the United States. In some cases, it seems more as though EOIR officials are misusing the fact-checking format to make a point about issues that no one is mischaracterizing.  See also  HRF Notice of Rejection of EOIR Factsheet (attached).

 

Trump administration makes a mockery of asylum system

The Hill: The Trump administration has been contemptuous of refugees and asylum seekers from its earliest days. In recent weeks, as White House adviser Stephen Miller has reportedly exerted greater influence in the White House, we have witnessed a dismantling of protections our country has held dear for decades.

 

Border detention cells in Texas are so overcrowded that U.S. is using aircraft to move migrants

WaPo: Overcrowding at Border Patrol stations in South Texas has become so acute in recent days that U.S. authorities have taken the rare step of using aircraft to relocate migrants to other areas of the border simply to begin processing them, according to three Homeland Security officials. See also Inside Texas’ New Migrant Tent Facility.

 

Pediatrician Who Treated Immigrant Children Describes Pattern of Lapses in Medical Care in Shelters

ProPublica: How prepared is the Trump administration for an influx of unaccompanied minors at the border? A new complaint shows shelters in New Jersey were already failing to respond when kids got hurt or sick.

 

Feds in Southern Arizona turn attention to family fraud at border

Tuscon: Last week, the Border Patrol’s Yuma Sector reported more than 700 fraudulent family claims since October. Homeland Security Investigations sent a team of special agents to Yuma in late April to investigate those claims. See also ICE Reallocates Resources to Investigate Use of Fraudulent Documents at Southwest Border.

 

Who Killed Claudia Gomez?

Marie Claire: A year ago this month, a 20-year-old Guatemalan woman seeking opportunity in the U.S. was shot dead by a Border Patrol agent in Texas. A video of the killing went viral on Facebook and spurred a media outcry, yet neither the agent’s name nor why he opened fire has ever been made public. In the first of our series on women and migration, we ask, will her family ever get justice?

 

How Has Immigration Changed in the Last 100 Years?

AIC: 21st century immigrants tend to be more educated, have a more diverse range of skills, and know more English than those in previous generations.

 

Federal Court Stops USCIS Policy Harmful to Students and Exchange Visitors

AIC: The policy could radically changed how the agency determines when a foreign student or exchange visitor is “unlawfully present” in the United States.

 

She Stopped to Help Migrants on a Texas Highway. Moments Later, She Was Arrested.

NYT: As the Trump administration moves on multiple fronts to shut down illegal border crossings, it has also stepped up punitive measures targeting private citizens who provide compassionate help to migrants — “good Samaritan” aid that is often intended to save lives along a border that runs through hundreds of miles of remote terrain that can be brutally unforgiving.

 

Democrats ask federal watchdog to examine ‘unprecedented’ immigration backlog

WaPo: More than 80 Democratic members of Congress have asked the Government Accountability Office to conduct an investigation into the “record-breaking” backlog of immigration cases pending under the Trump administration.

 

Mayor de Blasio Unveils NYC Care Card, Details Progress Toward Launch of Guaranteed Health Care

NYC: When NYC Care launches in the Bronx on August 1, residents will be able to use their NYC Care Card to receive their own doctor, get preventative screenings and tests, and connect to a 24/7 service to help make appointments. An estimated 300,000 New Yorkers are currently ineligible for health insurance, including people who can’t afford insurance and undocumented immigrants, and will be able to enroll in NYC Care.

 

Trump taps Mark Morgan, former Obama official who supports border wall, to head ICE

WaPo: At DHS, Morgan is viewed as a capable and hard-charging law enforcement official, but he was widely resented during his Border Patrol tenure by the agency’s senior officials and union chief Brandon Judd.

 

LITIGATION/CASELAW/RULES/MEMOS

 

As Trump continues to push deportations, a fight over data goes to court

LA Times: The class-action lawsuit, which represents broad categories of people who have been or will be subjected to detainers, alleges the databases that agents consult are so badly flawed by incomplete and inaccurate information that ICE officers should not be allowed to rely on them as the sole basis for keeping someone in custody.

 

Post Acosta BIA Decision (attached)

Listservs: The government argued that, because the client’s convictions were on appeal pursuant to a late filed notice of appeal – that per Acosta we needed to rebut the finality presumption by providing evidence that the client’s appeal related to the merits or a ‘substantive defect’ in the proceedings. We provided an affidavit from the criminal appeal attorney stating that she “expected to challenge the client’s case on the merits”. At the BIA, we argued that a NY late-filed notice of appeal is essentially a direct appeal because under NY Criminal Procedure – it becomes a direct appeal once it is granted. We also argued that even if it wasn’t a direct appeal, we had rebutted the presumption of finality with our affidavit from the criminal appeal attorney. The BIA punted on the first issue and decided that the presumption of finality had been rebutted sufficiently in this case.

 

Court rules immigrants can be deported for marijuana crime

AP:  A federal appeals court has ruled that California’s legalization of marijuana doesn’t protect immigrants from deportation if they were convicted of pot crimes before voters approved the new law in 2016.

 

Justice Department’s Four-Year Effort To Strip Citizenship From Kansas Man Flops In Federal Court

Intercept:  In a 17-page order, U.S. District Judge Carlos Murguia of the District of Kansas wrote that the federal government failed to meet the high burden of proof required to strip citizenship. “The overriding issue with plaintiff’s case is a lack of reliable, clear, unequivocal, and convincing evidence about what happened during defendant’s immigration-related interviews and what information was material to the interviewers,” Murguia wrote.

 

Presidential Proclamation 9880 Extending Proclamation 9822 for 90 Days

President Trump issued a proclamation extending the suspension and limitation from Proclamation 9822 for an additional 90 days, which would begin running if the injunction against the interim final rule at 83 FR 55934 were to be lifted. (84 FR 21229, 5/13/19) AILA Doc. No. 19051300

 

USCIS Notice on Continuation of Documentation for Beneficiaries of TPS Designations for Nepal and Honduras

USCIS notice that DHS will not terminate TPS for Honduras or Nepal pending final disposition of the appeal in Ramos v. Nielsen. The notice further announces that DHS is extending the validity of TPS-related documentation for Nepalese TPS beneficiaries through 3/24/20. (84 FR 20647, 5/10/19) AILA Doc. No. 19051033

 

DHS Final Rule Exempting “Criminal History and Immigration Verification” System of Records from Privacy Act

DHS final rule exempting portions of the “DHS/ICE–007 Criminal History and Immigration Verification (CHIVe)” System of Records from one or more provisions of the Privacy Act. The final rule is effective 5/9/19. (84 FR 20240, 5/9/19) AILA Doc. No. 19051034

 

HUD Proposed Rule on Verification of Immigration Status of Recipients of Public Housing Assistance

Department of Housing and Urban Development (HUD) proposed rule which would require the verification of the eligible immigration status of all recipients of assistance under HUD’s public housing programs who are under the age of 62. Comments are due 7/9/19. (84 FR 20589, 5/10/19) AILA Doc. No. 19051030

 

USCIS Updates Policy Manual Guidance Regarding Services USCIS Provides to the Public

USCIS issued PA-2019-03, updating policy guidance in the USCIS Policy Manual regarding services USCIS provides to the public, including general administration of certain immigration benefits, online tools, and up-to-date information. Guidance is effective immediately and comments are due by 5/24/19. AILA Doc. No. 19051031

 

EOIR 60-Day Notice and Request for Comments on Form EOIR-26

EOIR 60-day notice and request for comments on proposed revisions to Form EOIR-26, Notice of Appeal From a Decision of an Immigration Judge. Comments are due 7/8/19. (84 FR 19960, 5/7/19) AILA Doc. No. 19050730

 

DOS Final Rule on Requests for Waivers of Inadmissibility

DOS final rule modifying the non-statutory requirement for consular officers to refer §212(d)(3)(A)(i) waiver requests to the Department of State for consideration based on an applicant’s request by limiting the requirement to certain specified circumstances. Effective 5/6/19. (84 FR 19712, 5/6/19) AILA Doc. No. 19050601

 

USCIS 60-Day Notice and Request for Comments on Proposed Revisions to Form N-648

USCIS 60-day notice and request for comments on proposed revisions to Form N-648, Medical Certification for Disability Exceptions. Comments are due 6/25/19. (84 FR 17870, 4/26/19) AILA Doc. No. 19050632

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

 

Monday, May 13, 2019

Sunday, May 12, 2019

Saturday, May 11, 2019

Friday, May 10, 2019

Thursday, May 9, 2019

Wednesday, May 8, 2019

Tuesday, May 7, 2019

Monday, May 6, 2019

****************************************

There is plenty of stuff about our evil, immoral, scofflaw Administration in this edition of Elizabeth’s report that ought to make us sick to our collective stomachs.

I strongly recommend that you read my choice for “Article of the Week” — “Trump Administration makes a mockery of our asylum system” in The Hill, written by my friends Anna Gallagher and Victoria Nielson of CLINIC.  Here’s an excerpt:

For an administration that claims to believe in the rule of law, it has shown little interest in following domestic and international asylum law. If Border Patrol agents are willing to slam the door on asylum seekers, where asylum officers would not, the administration may win political points with its base. In the end, the United States loses, as our executive branch simply stops following laws it doesn’t like. As the number of displaced persons around the world rises to its highest levels since World War II, if the United States finds ways to sidestep its obligations under international law, other countries will do the same. With each new affront to our moral obligations as a nation, the “lamp beside the golden door” held high by the Statue of Liberty fades towards darkness.

Anna Gallagher is the executive director of the Catholic Legal Immigration Network, Inc.

Victoria Neilson is managing attorney in CLINIC’s Defending Vulnerable Populations Program.

PWS

05-16-19

TRUTH MATTERS: SETTING THE RECORD STRAIGHT: AILA Blasts EOIR’s False & Unethical Anti-Asylum Screed! — “Together, the document’s deceptive information and polarizing rhetoric further undermines the court system’s ability to be a neutral arbiter of justice and comes at a time when there is a severe lack of public confidence in its capacity to deliver fair and timely decisions. EOIR’s skewed portrayal only demonstrates the urgent need for Congress to create an independent court, separate from DOJ.”

https://www.aila.org/advo-media/aila-policy-briefs/aila-policy-brief-facts-about-the-state-of-our

Policy Brief: Facts About the State of Our Nation’s Immigration Courts May 14, 2019
Contact: Laura Lynch (llynch@aila.org) or Kate Voigt (kvoigt@aila.org)
On May 8, 2019, the U.S. Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR) distributed a document to journalists that contained misleading material related to our nation’s immigration courts.1 The document, which purports to list “myths” and “facts”, is also filled with political rhetoric.2 America’s courts are meant to be impartial, dedicated to fairly and efficiently adjudicating the cases brought before them. Together, the document’s deceptive information and polarizing rhetoric further undermines the court system’s ability to be a neutral arbiter of justice and comes at a time when there is a severe lack of public confidence in its capacity to deliver fair and timely decisions.3 EOIR’s skewed portrayal only demonstrates the urgent need for Congress to create an independent court, separate from DOJ.
• The immigration court structure is inherently flawed
Unlike many judicial bodies, the immigration courts lack independence from the executive branch because they are administered by EOIR, which is housed under DOJ – the same agency that prosecutes immigration cases at the federal level.4 This inherent conflict of interest is made worse by the fact that immigration judges (IJs) are considered merely government attorneys, a classification that fails to recognize the significance of their judicial duties and puts them under the control of the U.S. Attorney General (AG), the chief prosecutor in immigration cases.
Because of this structural flaw, the immigration court system has long been vulnerable to political pressure from the executive branch. For example, the courts have been repeatedly subject to “aimless docket reshuffling” based on politically motivated priorities.5 President Obama’s administration prioritized the adjudication of “family unit” cases which EOIR recently determined “coincided with some of the lowest levels of case completion productivity in EOIR’s history.”6 President Trump ordered IJs deployed to detention facilities on the border where they reported that they had very few cases to adjudicate. Over 20,000 cases were rescheduled as a result of the Administration’s deployment.7
• EOIR imposed unprecedented case completion quotas on judges, pressuring them to rush through cases at the expense of well-reasoned decisions
Despite opposition from immigration judges,8 EOIR imposed unprecedented case completion quotas, tying judges’ individual performance reviews to the number of cases they complete.9 Under the new requirements, IJs must complete 700 removal cases in the next year or risk losing their jobs.10 A strict time frame for completion of cases can interfere with a judge’s ability to ensure that a person’s right to examine and present evidence is respected, to provide adequate time to obtain an attorney, secure various expert witnesses, and obtain evidence from overseas.11 This kind of rushed, assembly-line justice is unacceptable to impose on IJs who are making important, often life-or-death, decisions.
During a March 7, 2019 congressional hearing, the director of EOIR asserted that several other agencies also utilize “case completion goals.”12 However, other agencies’ goals are used to determine resource allocation, while EOIR’s case completion quotas are tied directly to an IJ’s performance evaluations.13
AILA Doc. No. 19051438. (Posted 5/14/19)

AILA, the American Immigration Council, and other legal organizations and scholars oppose the quotas that have been described by the National Association of Immigration Judges (NAIJ) as a “death knell for judicial independence.”14 In fact, recommendations made by an independent third party in a report commissioned by EOIR itself propose a judicial performance review model that “emphasizes process over outcomes and places high priority on judicial integrity and independence.”15
• Scholars have concluded that immigrants represented by attorneys fare better at every stage of the court process
While Federal law guarantees immigrants facing deportation the right to be represented by an attorney, it does not provide immigrants with an attorney at the government’s expense if they cannot afford representation.16 Only 37 percent of all noncitizens and 14 percent of detained noncitizens are represented.17 However, the American Immigration Council has found that “immigrants with attorneys fare better at every stage of the court process” – people with attorneys are more likely to be released from detention during their case, they are more likely to apply for some type of relief, and they are more likely to obtain relief from deportation.18 The consequences for people who face removal without representation are severe: detained immigrants in removal proceedings who lack representation are about ten times less likely to obtain relief.19 Despite statistics that show the assistance of counsel has a significant positive impact on outcomes, thousands of families and unaccompanied children fleeing persecution and violence at home have appeared in immigration court over the years without a lawyer at their side.
Attorneys also help facilitate more efficient court proceedings. NAIJ’s President, Judge A. Ashley Tabaddor, stated, “when noncitizens are represented by competent counsel, Immigration Judges are able to conduct proceedings more expeditiously and resolve cases more quickly.”20 Recent studies have also confirmed that immigrants with representation are far more likely to comply with court appearance requirements.21 A recent report by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) found that, as of December 2017, 97 percent of mothers in immigration court represented by counsel were in compliance with their immigration court obligations over a three year period.22
• The Legal Orientation Program improves judicial efficiency and fundamental fairness
EOIR has operated the Legal Orientation Program (LOP) in immigration detention centers since 2003.23 While not a substitute for legal counsel, LOP is often the only source of basic legal information that assists detained immigrants in navigating a complex court process. In fact, LOP has been proven to increase court efficiency and save taxpayer dollars. A 2012 study commissioned by DOJ demonstrated that the program decreased the average length of time a person is detained by an average of six days, saving approximately $17.8 million each year.24 EOIR’s own website publicly endorsed the LOP program in 2017, stating that “[e]xperience has shown that the LOP has had positive effects on the immigration court process,”25 and an independent report commissioned by EOIR recommended that DOJ “consider expanding know your rights and legal representation programs, such as … LOP.”26 Despite this overwhelming support, DOJ attempted to end the program in April 2018 and removed content on its website that endorsed the program.27 After significant criticism, it rescinded its proposed termination, but continues to undermine the program by releasing flawed evaluations of its efficacy. 28
• Court statistics demonstrate that asylum grant rates vary widely depending on the judge
It is well-documented that the disparity in asylum grant rates is an endemic problem.29 The grant rates for cases vary widely depending on the judge—asylum grant rates are less than 5 percent in some jurisdictions yet higher than 60 percent in others—and give rise to criticism that outcomes may turn on which judge is deciding the case rather than established principles and rules of law.30 EOIR has not taken adequate
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corrective action to address this problem and ensure that court proceedings are conducted in a fair and consistent manner. The agency’s inadequate response illustrates the weakness of a court system not overseen by an independent judicial agency whose primary function is to ensure the rule of law, impartiality, and due process in the adjudication of cases.
• Use of video teleconferencing (VTC) undermines the quality of communications during immigration hearings and threatens due process
For years, legal organizations have opposed the use of VTC to conduct in immigration merits hearings, except in matters in which the noncitizen has given consent.31 An empirical study published in the Northwestern University Law Review revealed that detained respondents appearing via VTC were more likely to be deported than those with in-person hearings.32 In April of 2017, a separate EOIR-commissioned report explained that VTC technology does not provide for the ability to transmit nonverbal cues, which can impact an immigration judges’ assessment of an individual’s demeanor and credibility.33 The report concluded that proceedings by VTC should be limited to procedural matters because appearances by VTC may interfere with due process.”34
Additionally, technological glitches such as weak connections and bad audio can make it difficult to communicate effectively via VTC. An EOIR-commissioned study revealed that 29 percent of EOIR staff reported that VTC caused meaningful delay, a finding that is supported by accounts from courts including Omaha, which reported that VTC technology works “sometimes,” Salt Lake City, where observers stated that “technical delays are common,” and New York City, where immigration attorneys describe a VTC connection that “often stops working.”35 While EOIR claims that few cases are continued due to VTC malfunction, in reality, judges are only allowed to record one reason for a case being continued even if VTC issues contribute to a delay, which means that EOIR’s data is far from precise. 36 Despite these concerns, EOIR has expanded its use of VTC for substantive hearings, going as far as to create two immigration adjudication centers where IJs adjudicate cases from around the country from a remote setting.37
• Congress must establish an Article I immigration court system to ensure functioning courts
Congress should conduct rigorous oversight into policies that have eroded the court’s ability to ensure that decisions are rendered in a timely manner and consistent with the law and the Constitution’s guarantee of due process. However, given its political dysfunction, years of underfunding, and inherently flawed structure, our immigration court system must be restructured into an Article I court system in order to restore the most important guarantee of our legal system: the right to a full and fair hearing by an impartial judge.38 For more information, go to www.aila.org/immigrationcourts.
1 EOIR, Myths vs. Facts About Immigration Proceedings, May 8, 2019.
2 The National Association of Immigration Judges (NAIJ) stated that “DOJ’s key assertions under both the “myths” and the “facts” either mischaracterize or misrepresent the facts.” See NAIJ Statement, National Assn. of Immigration Judges Say DOJ’s “Myths v. Facts” Filled with Errors and Misinformation, May 13, 2019. Furthermore, twenty-seven retired immigration judges (IJ) and former members of the Board of Immigration Appeals (BIA) deemed the document to be “political pandering” and proclaimed that “American Courts do not issue propaganda implying that those whose cases it rules on for the most part have invalid claims.” Round Table of Former Immigration Judges, EOIR “Myth vs. Fact” Memo, May 13, 2019.
3 Catherine Shoichet, CNN Politics, The American Bar Association says US immigration courts are ‘on the brink of collapse’, Mar. 20, 2019.
4 DOJ, Organization Chart, Feb. 5, 2018.
5 Retired Immigration Judge Paul Schmidt, Speech to the ABA Commission, Caricature of Justice: Stop the Attack on Due Process, Fundamental Fairness, and Human Decency in Our Captive Dysfunction U.S. Immigration Courts!, May 4, 2018; NAIJ, Letter to House CJS Appropriations Subcommittee, Mar. 12, 2019.
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6 Eric Katz, Government Executive, ‘Conveyer Belt’ Justice: An Inside Look at Immigration Courts, Jan. 22, 2019; EOIR, Tracking and Expedition of “Family Unit” Cases, Nov. 11, 2018
7 National Immigrant Justice Center (NIJC), Internal DOJ Documents Reveal Immigration Courts’ Scramble to Accommodate Trump Administration’s “Surge Courts, Sept. 27, 2017.
8 NAIJ, Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, May 2, 2018.
9 EOIR, Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, Mar. 30, 2018; See also Imposing Quotas on Immigration Judges will Exacerbate the Case Backlog at Immigration Courts, NAIJ, Jan. 31, 2018; Misunderstandings about Immigration Judge “Quotas” in Testimony Before House Appropriations Committee, NAIJ, May 2, 2018; and EOIR’s Strategic Caseload Reduction Plan, Oct. 23, 2017.
10 EOIR, Memorandum from James McHenry, Director, Executive Office for Immigration Review on Immigration Judge Performance Metrics to All Immigration Judges, Mar. 30, 2018.
11 INA §240(b)(4)(B) requires that a respondent be given a “reasonable opportunity” to examine and present evidence. See AILA Policy Brief: Imposing Numeric Quotas on Judges Threatens the Independence and Integrity of Courts, Oct. 12, 2017.
12 House Committee on Appropriations, Commerce, Justice, Science, and Related Agencies (116th Congress), Executive Office for Immigration Review, Mar. 7, 2019.
13 In fact, Congress “specifically exempted ALJs from individual performance evaluations as a mechanism to ensure their independence from such measures and protect the integrity of their decisions.”
See NAIJ, Letter to House CJS Appropriations Subcommittee, Mar. 12, 2019.
14 AILA and the American Immigration Council Statement, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018. See also NAIJ, Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges, Oct. 2017.
15 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017.
16 8 U.S.C. §1362 (West 2018).
17 Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016.
18 Id.
19 AILA and the American Immigration Council, DOJ Strips Immigration Courts of Independence, Apr. 3, 2018.
20 Sen. Mazie Hirono, Written Questions for the Record, U.S. Senate Committee on the Judiciary, Apr. 18, 2018.
21 Human Rights First, Immigration Court Appearance Rates, Feb. 9, 2018.
22 Retired Immigration Judge Paul W. Schmidt, Immigration Courts: Reclaiming the Vision, May 2017.
23 The American Immigration Council, Legal Orientation Program Overview, Sept. 2018.
24 DOJ, Cost Savings Analysis – The EOIR Legal Orientation Program, Apr. 4, 2012.
25 The Wayback Machine, EOIR Legal Orientation Program, as of Dec. 24, 2017.
26 AILA and The American Immigration Council FOIA Response, Booz Allen Hamilton Report on Immigration Courts, Apr. 6, 2017.
27 Maria Sacchetti, The Washington Post, Justice Dept. to halt legal advice-program for immigrants in detention, Apr. 10, 2018; The Wayback Machine, EOIR Legal Orientation Program, as of May 5, 2018.
28 U.S. Department of Justice, Opening Statement of Attorney General Jeff Sessions Before the Senate Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies, Apr. 25, 2018. See also Vera Institute of Justice, Statement on DOJ Analysis of Legal Orientation Program, Sept. 5, 2018.
29 See Ingrid Eagly and Steven Shafer, Access to Counsel in Immigration Court, American Immigration Council, Sept. 28, 2016; See also GAO Report, Asylum Variation Exists in Outcomes of Applications Across Immigration Courts and Judges, Nov. 16, 2016, “For fiscal years 1995 through 2014, EOIR data indicate that affirmative and defensive asylum grant rates varied over time and across immigration courts, applicants’ country of nationality, and individual immigration judges within courts.”
30 AILA Statement, Submitted to the Senate Judiciary Subcommittee on Border Security and Immigration Hearing on “Strengthening and Reforming America’s Immigration Court System,” Apr. 18, 2018.
31 AILA Comments, ACUS Immigration Removal Adjudications Report, May 3, 2012; ABA Comments to ACUS, Responds to Taking Steps to Enhance Quality and Timeliness in Immigration Removal Adjudication, Feb. 17, 2012. 32 Ingrid Eagly, Northwestern Law Review, Remote Adjudication in Immigration, 2015.
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33 Booz Allen Hamilton Report on Immigration Courts. In June of 2017, the GAO issued a report raising concerns that, “EOIR has not adopted the best practice of ensuring that its VTC program is outcome-neutral because it has not evaluated what, if any, effects VTC has on case outcomes.”
34 Booz Allen Hamilton Report on Immigration Courts.
35 Booz Allen Report on Immigration Courts; Tom Hals, Reuters, Groups sue U.S. to stop deportation hearings by videoconference in New York, Feb. 13, 2019; Kelan Lyons, Salt Lake City Weekly, Technical Difficulties, Oct. 10, 2018; Beth Fertig, WNYC, Do Immigrants Get a Fair Day in Court When It’s by Video? Sept. 11, 2018.
36 EOIR, Myths vs Facts About Immigration Proceedings, May 8, 2019; NAIJ Statement, National Assn. of Immigration Judges Say DOJ’s “Myths v. Facts” Filled with Errors and Misinformation, May 13, 2019.
37 U.S. Department of Justice, EOIR Strategic Caseload Reduction Plan, Dec. 5, 2017. See also Katie Shepherd, American Immigration Council, The Judicial Black Sites the Government Created to Speed Up Deportations, Jan. 7, 2019.
38 AILA Statement, The Need for an Independent Immigration Court Grows More Urgent as DOJ Imposes Quotas on Immigration Judges, Oct. 1, 2018. See also the NAIJ letter that joins AILA, the ABA, the Federal Bar Association, the American Adjudicature Society, and numerous other organizations endorsing the concept of an Article I immigration court. NAIJ Letter, Endorses Proposal for Article I Court, Mar. 15, 2018.
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Seems like there is more than enough here for Congress to request that the DOJ Inspector General institute an investigation into ethical abuses and gross mismanagement by McHenry and other EOIR officials who are not only failing to fairly, impartially, and efficiently administer the Immigration Court system, but are also using Government time and resources to spread demonstrable lies and a nativist political propaganda. They also are using these knowingly false narratives to “shift blame” for their mismanagement to the victims: asylum applicants, their attorneys, and NGOs.

BTW, what exactly do the Chief Immigration Judge and the Chairman of the BIA do these days? These supposedly high level (and well-compensated) EOIR Senior Executives responsible for insuring judicial independence and fundamental fairness apparently have disappeared from public view. Have they been reduced to “hall walker” status in the finest tradition of the DOJ (under all Administrations) of “exiling” senior career officials who “don’t fit with the Administration’s political program? ” Perhaps the IG should also check into this.

In any event, the amount of corruption and “malicious incompetence” in EOIR management should make an independent Article I U.S. Immigration Court a legislative imperative!

PWS

05-16-19

THE ASYLUMIST WEIGHS IN ON EOIR’S “FACT SHEET:” “Sometimes, myths and facts get mixed up, especially in the Trump Administration, which has redacted human rights reports to show that countries are safe, buried other reports that don’t say what they like, and claimed that asylum lawyers are making up cases to get their clients across the border. It’s all in the grand tradition of the merchants of doubt, men and women who know better, but who obfuscate the truth–about tobacco, global warming, vaccines, whatever–to achieve a political goal (or make a buck). Why shouldn’t EOIR join in the fun?”

http://www.asylumist.com/2019/05/15/the-myths-and-facts-that-eoir-does-not-want-you-to-see/

Earlier this month, the Executive Office for Immigration Review (“EOIR”)–the office that oversees our nation’s Immigration Courts–issued a Myths vs. Facts sheet, to explain that migrants are bad people and that most of them lose their asylum cases anyway.

I am always suspicious of “myths vs. facts” pronouncements, and to me, this one from EOIR seems particularly propaganda-esque (apparently the Washington Post Fact Checker thinks so too, as they gave the document two Pinocchios, meaning “significant omissions and/or exaggerations”). In terms of why EOIR created this document, one commentator has theorized that the current agency leadership is tired of answering the same questions and justifying its actions, and so they created a consolidated document that could be used whenever questions from the public or Congress come up.

EOIR has released a new “Myths vs. Facts” brochure.

This is a plausible enough explanation, but I wanted to know more. Lucky, I have a super-secret source inside EOIR itself. I met up with my source in a deserted parking garage, where he/she/it/they (I am not at liberty to say which) handed me a sealed envelope containing an additional sheet of myths and facts. These myths and facts didn’t make it into EOIR’s final draft. But now, for the first time, in an Asylumist exclusive, you can read the myths and facts that EOIR did not want you to see. Here we go:

Myth: Aliens who appear by video teleconferencing (“VTC”) equipment get just as much due process as anyone else. Maybe more.
Fact: The video camera makes aliens who appear by VTC look 20% darker than their actual skin tone (the skill level of EOIR’s make-up crew leaves something to be desired). Since dark people are viewed as less credible and more dangerous, this increases the odds of a deportation order. Another benefit of VTC is that  Immigration Judges (“IJ”) can turn down the volume every time an applicant starts to cry or says something the IJ doesn’t want to hear. This also makes it easier to deny relief. Fun fact: Newer model VTC machines come with a laugh track, which makes listening to boring sob stories a lot more pleasurable.

Myth: Immigration Judges don’t mind production quotas. In fact, most IJs keep wall charts, where they post a little gold star every time they complete a case. At the end of the month, the IJ with the most stars gets an ice cream.
Fact: While some IJs relish being treated as pieceworkers in a nineteenth century garment factory, others do not. Frankly, they shouldn’t complain. EOIR recently commissioned a study, which found that a trained monkey could stamp “denied” on an asylum application just as well as a judge, and monkeys work 30% faster. Even for human judges, EOIR has determined that it really shouldn’t take more than 10 minutes to glance at an asylum case and write up a deportation order. At that rate, an IJ can deny six cases an hour, 48 cases per day, and 12,480 cases per year. Given these numbers, even IJs who insist on some modicum of due process should easily complete 700 cases per year (as required by the new production quota). And they better. Otherwise, it’s good bye homo sapien, hello pan troglodyte.

Myth: Aliens who participate in Legal Orientation Programs (“LOP”) spend an average of 30 additional days in detention, have longer case lengths, and add over $100 million in detention costs to DHS.
Fact: Knowing your rights is dangerous. It might cause you to exercise them. And people who exercise their rights are harder to deport. EOIR is working on a new LOP, which will teach aliens how to properly respond to a Notice to Appear (“Guilty, your honor!”), how to seek asylum (“I feel totally safe in my country!”), how to seek relief (“I don’t need any relief – please send me home post haste!”), and how to appeal (“Your Honor, I waive my appeal!”). EOIR estimates that aliens who follow this new ROP will help reduce detention time and save DHS millions. The new ROP will help Immigration Judges as well. It’s a lot easier to adjudicate an asylum case where the alien indicates that she is not afraid to return home. And faster adjudications means IJs can more easily meet their production quotas – so it’s a win-win!

Myth: EOIR Director James McHenry got his job based on merit. He has significant prior management experience, and he is well-qualified to lead an agency with almost 3,000 employees and a half-billion dollar budget.
Fact: James McHenry’s main supervisory experience prior to becoming EOIR Director comes from an 11th-grade gig stage-managing “The Tempest,” by William Shakespeare. In a prescient review, his school paper called the show “a triumph of the Will.” More recently, Mr. McHenry served as an attorney for DHS/ICE in Atlanta, and for a few months, as an Administrative Law Judge for the Office of the Chief Administrative Hearing Officer. In those positions, he gained valuable management experience by supervising a shared secretary and a couple of interns. When asked for a comment about her boss’s management skills, Mr. McHenry’s former intern smiled politely, and slowly backed out of the room.

Myth: In the EOIR Myths vs. Facts, the myths are myths and the facts are facts. That’s because the Trump Administration is always honest and credible when it comes to immigration.
Fact: [Sounds of screeching metal and explosions]. Uh oh, I think we just broke the myths and facts machine…

So perhaps all is not as it seems. Sometimes, myths and facts get mixed up, especially in the Trump Administration, which has redacted human rights reports to show that countries are safe, buried other reports that don’t say what they like, and claimed that asylum lawyers are making up cases to get their clients across the border. It’s all in the grand tradition of the merchants of doubt, men and women who know better, but who obfuscate the truth–about tobacco, global warming, vaccines, whatever–to achieve a political goal (or make a buck). Why shouldn’t EOIR join in the fun? But to return to our friend William Shakespeare, I have little doubt that, eventually, the truth will out. The question is, how much damage will we do to migrants and to ourselves in the meantime?

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Jason is absolutely correct. Truth eventually will win out.
But, some have already died or been irreparably harmed, and other migrants will be needlessly sacrificed on the alter of nativist White Nationalism before this corrupt Administration eventually is removed.
We have already diminished ourselves as a nation. Will we ever recover? Will those responsible at EOIR, DOJ, DHS, Congress, the Article III Courts, and elsewhere ever be held fully accountable for their lies and corrupt roles in trashing human rights and our Constitution?
PWS
05-17-19