THE GIBSON REPORT: 05-06-19 — Prepared By Elizabeth Gibson, Esquire, NY Legal Assistance Group

TOP UPDATES

 

Trump Calls For Asylum-Seekers To Pay Fees, Proposing New Restrictions

NPR: In the memo, Trump said he is giving Attorney General William Barr and acting Homeland Security Secretary Kevin McAleenan 90 days to propose new regulations to speed up the processing of asylum claims, charge application fees for those seeking asylum, and to bar work authorization for certain applicants. See also Asylum seekers leave everything behind. There’s no way they can pay Trump’s fee.

 

White House asks Congress for $4.5 billion in emergency spending at border

WaPo: The request includes $3.3 billion for humanitarian assistance and $1.1 billion for border operations, and it represents a dramatic escalation of the administration’s efforts to address the situation at the border.

 

Trump administration to give Border Patrol agents authority to decide asylum claims on the spot

Wa Examiner: The Department of Homeland Security is racing to implement a plan that would give federal law enforcement on the border the authority to conduct interviews with asylum seekers who fear returning to their home countries, according to two sources with firsthand knowledge of the plan.

 

Civil servants say they’re being used as pawns in a dangerous asylum program

Vox: Asylum officers have raised concerns with their union. Vox spoke with several of them in their capacity as union members, in meetings facilitated and attended by the head of the union representing immigration officers in US Citizenship and Immigration Services, about how the new procedures have changed their jobs.

 

Emails show Trump admin had ‘no way to link’ separated migrant children to parents

NBC: On the same day the Trump administration said it would reunite thousands of migrant families it had separated at the border with the help of a “central database,” an official was admitting privately the government only had enough information to reconnect 60 parents with their kids, according to emails obtained by NBC News. See also Homeland Security Used A Private Intelligence Firm To Monitor Family Separation Protests.

 

Bodies In The Borderlands

Intercept: Scott Warren Worked to Prevent Migrant Deaths in the Arizona Desert. The Government Wants Him in Prison.

 

John Kelly joins board of company operating largest shelter for unaccompanied migrant children

CBS: Caliburn is the parent company of Comprehensive Health Services, which operates Homestead and three other shelters for unaccompanied migrant children in Texas. Prior to joining the Trump administration in January 2017, Kelly had been on the board of advisors of DC Capital Partners, an investment firm that now owns Caliburn.

 

Kushner’s immigration plan has skeptics lining up on both sides

CNN: For months, President Donald Trump’s son-in-law and senior adviser has been chipping away at a plan to overhaul the country’s immigration system, seizing an issue that’s otherwise belonged at the White House to senior adviser and immigration hardliner Stephen Miller.

 

ICE Reallocates Resources to Investigate Use of Fraudulent Documents at Southwest Border

ICE announced the reallocating resources to investigate the use of fraudulent documents to “create fake families seeking to exploit U.S. immigration laws.” During April 2019, HSI conducted about 100 family unit interviews and have found evidence of fraud in “more than a quarter of cases.” AILA Doc. No. 19050232

 

Administration Backs Plan for More Visas for Seasonal Workers

WSJ: The Trump administration is moving ahead to allow an additional 30,000 seasonal workers to return to the U.S. this summer, a higher-than-expected number that reflects internal tensions in the White House’s approach to legal immigration.

 

Trump Names Mark Morgan, Former Head of Border Patrol, to Lead ICE

WaPo: President Trump on Sunday named a former Obama administration official who has embraced some of Mr. Trump’s hard-line positions on border security as the head of Immigration and Customs Enforcement, part of a broad effort to force federal agencies into a more aggressive crackdown on migrants.

 

Trump says the border crisis is about criminals and gangs. His administration says it is about families and children.

WaPo: The sharp dichotomy between the president’s rhetoric and the tone of his aides reflects how they are waging a battle on separate fronts — one political and the other operational — as the administration struggles to deal with a mounting humanitarian crisis at the U.S. border with Mexico.

 

Why is Mexican migration slowing while Guatemalan and Honduran migration is surging?

WaPo: Migration from Mexico has dropped 90 percent over the past 20 years; this year, for the first time ever, Guatemala and Honduras are on pace to surpass it as the leading sources of illegal immigration to the United States.

 

Terrorism, immigration efforts hampered by Homeland Security vacancies

WaPo: Just 47 percent of key department slots are filled with confirmed appointees, according to the Political Appointee Tracker published by The Washington Post and the Partnership for Public Service. Only Interior is worse, at 41 percent, among Cabinet-level agencies.

 

Push for driver’s licenses for undocumented immigrants intensifies at Capitol

Buffalo News: Twelve states, along with the District of Columbia and Puerto Rico, permit undocumented immigrants to get licenses. They do so, however, in vastly different ways, from two-tiered systems in some cases to making it be only used for driving and not, for instance, as identification to get into federal buildings.

 

We Got U.S. Border Officials to Testify Under Oath. Here’s What We Found Out.

ACLU: The information we uncovered through our lawsuit shows that CBP and ICE are asserting near-unfettered authority to search and seize travelers’ devices at the border, for purposes far afield from the enforcement of immigration and customs laws.

 

LITIGATION/CASELAW/RULES/MEMOS

 

No More Filing Window at OPLA-NYC

DHS: Please be advised that the Office of the Principal Legal Advisor New York City (OPLA-NYC)  will permanently close the reception window at 26 Federal Plaza effective Monday, June 3, 2019.  Starting on that date, OPLA-NYC will no longer accept in-person filings at 26 Federal Plaza.  OPLA-NYC will continue to receive documents 24/7 through ICE eService (visit: eserviceregistration.ice.gov)… Although OPLA-NYC will continue to accept service of filings by mail,  we will only provide proof of service via ICE eService.

 

Natz Interview Locations

USCIS: Starting June 1, 2019, Brooklyn and Staten Island residents will be interviewed (only natz cases) at the USCIS Field Office in Newark.  Newark Office will be working on Saturdays as well.  This is the way USCIS deals with the current  backlog.

 

On Heels of Barr Immigration Decision, Booker, Jayapal, Smith to Re-Introduce Bill to Counter Attorney General’s Efforts

Booker: The bill would directly combat Attorney General Barr’s efforts to indefinitely detain immigrants by, 1) mandating that all detained immigrants have access to a bond hearing before an immigration judge, and 2) shifting the burden to the government to prove that asylum seekers and other immigrants should be detained because they pose a risk to the community or a flight risk.

 

Unpublished Decision: Theft of Services not a CIMT (attached)

BDS: affirming Judge Farber’s grant of our motion to terminate because our LPR client’s recent petit larceny conviction is on direct appeal (following a successful late-filed notice of appeal) and his theft of services conviction is not a CIMT.

 

BIA Remands, Finding that a Subsequent Notice of Hearing Can “Perfect” a Deficient NTA

The BIA held that if a NTA does not specify time/place of initial removal hearing, the subsequent service of a notice with that information “perfects” the deficient NTA and triggers the stop-time rule. Matter of Mendoza-Hernandez and Matter of Capula-Cortes, 27 I&N Dec. 520 (BIA 2019) AILA Doc. No. 19050230

 

BIA Terminates Proceedings After Finding Grand Larceny Conviction Not an Aggravated Felony

Unpublished BIA decision terminated removal proceedings after finding respondent’s conviction of grand larceny in the second degree under NY law was not an aggravated felony and thus she was not removable under INA §237(a)(2)(A)(iii). Courtesy of Michael Goldman. (Matter of Reyes, 4/24/19) AILA Doc. No. 19050302

 

BIA Holds Ohio Statute Not a Firearms Offense

Unpublished BIA decision holds that the improper handling of a firearm in a motor vehicle under Ohio Rev. Code 2923.16(E)(1) is not a firearms offense because state has prosecuted under similar statutes for possessing antique firearms. Special thanks to IRAC. (Matter of Edwards, 6/20/18) AILA Doc. No. 19050395

 

BIA Holds California Vehicle Manslaughter Not a CIMT

Unpublished BIA decision holds that vehicular manslaughter with gross negligence under Calif. Penal Code 192(c)(1) is not a CIMT because it does not require a sufficiently culpable mental state. Special thanks to IRAC. (Matter of Pourmand, 6/18/18) AILA Doc. No. 19050295

 

BIA Grants Interlocutory Appeal Challenging Denial of Change of Venue

Unpublished BIA decision grants interlocutory appeal of denial of motion to change venue to immigration court close to his attorney where respondent had conceded removability and submitted application for cancellation of removal. Special thanks to IRAC. (Matter of Linares Flores, 6/15/18) AILA Doc. No. 19050195

 

BIA Holds Virginia Hit-and-Run Statute Not a CIMT

Unpublished BIA decision holds that Va. Code Ann. 46.2-894 is not a CIMT because it does not require drivers to leave the scene of the accident or realize that the accident resulted in injury or property damage. Special thanks to IRAC. (Matter of Sifuentes-Reyna, 6/15/18) AILA Doc. No. 19050196

 

CA1 Finds Petitioner Failed to Satisfy Prejudice Requirement for Ineffective Assistance of Counsel Claim

The court upheld the BIA’s denial of petitioner’s motion to reopen his 2012 removal order, finding that the petitioner failed to show sufficient prejudice resulting from the alleged ineffective assistance of counsel upon which he based his motion to reopen. (Franco-Ardon v. Barr, 4/26/19) AILA Doc. No. 19042900

 

CA5 Finds BIA’s Retroactive Application of Matter of Diaz-Lizarraga Violates Due Process

The court found that the BIA erred in applying the definition of crimes involving moral turpitude (CIMTs) announced in 2016 in Matter of Diaz-Lizarraga to the petitioner’s 2007 conviction for attempted theft. (Monteon-Camargo v. Barr, 3/14/19, amended 4/26/19) AILA Doc. No. 19031974

 

CA9 Upholds BIA’s Decision Not to Certify Ineffective Assistance of Counsel Claim for Review Under 8 CFR §1003.1(c)

The court held that the BIA’s decision not to certify a claim is committed to agency discretion and, in this case, was not subject to judicial review. (Idrees v. Barr, 12/13/18, amended 4/30/19) AILA Doc. No. 19011471

 

EDVA Finds Plausible Claims that ORR Family Reunification Policies Violate Constitutional, Statutory, and Administrative Laws

The judge granted two classes to be certified in this case challenging Office of Refugee Resettlement policies that the class has argued makes it too difficult for children to get out of detention and back with their families or in a home with a sponsor. (J.E.C.M. v. Lloyd, 4/26/19) AILA Doc. No. 18121803

 

DOJ Notice and Request for Comments on Proposed Revisions to Forms EOIR-42A and EOIR-42B

DOJ notice and request for comments on proposed revisions to Form EOIR-42A and Form EOIR-42B. Comments are due 5/28/19. (84 FR 17891, 4/26/19) AILA Doc. No. 19042936

 

USCIS Updates Officer Training on Credible Fear of Persecution and Torture Determinations

USCIS updated its Refugee, Asylum, and International Operations (RAIO) Directorate Officer Training course on credible fear of persecution and torture determinations, to explain how to determine whether an individual subject to expedited removal or an arriving stowaway has a credible fear. AILA Doc. No. 19050602

 

RESOURCES

 

EVENTS

 

 

ImmProf

 

Sunday, May 5, 2019

Saturday, May 4, 2019

Friday, May 3, 2019

Thursday, May 2, 2019

Wednesday, May 1, 2019

Tuesday, April 30, 2019

Monday, April 29, 2019

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Elizabeth’s second and third items show how the Trump Administration is compromising the fairness of the credible fear and asylum systems within DHS by skewing the law and procedures against asylum seekers.  This is despite both the intent behind the UN Convention and Protocol Relating to the Status of Refugees that asylum seekers be “given the benefit of the doubt” and the Supreme Court’s decision in INS v. Cardoza-Fonseca holding that the term “well founded fear” must be given a generous interpretation so that even those whose chances of persecution are as low as 10% could qualify for asylum.

PWS

05-07-19

PROFESSOR FITZ BRUNDAGE @ WASHPOST: Can We Regain Our Humanitarian Values In The Age Of Trump? — “We must shine a spotlight on cruel and illegal policies that undermine our national ideals and find the wisdom and the courage to do better.”

https://www.washingtonpost.com/outlook/2019/05/03/can-united-states-retain-its-humanity-even-crisis

Brundage writes in WashPost:

Fitz Brundage is the William B. Umstead professor of history at UNC-Chapel Hill and the author of “Civilizing Torture,” which was a finalist for the 2019 Pulitzer Prize in History.

May 3

Does it violate human rights to hold children in fenced enclosures in grim facilities that are bone-chillingly cold for weeks on end? Is separating children from their parents a form of cruel and unusual punishment? When does a crisis justify the kind of treatment normally seen as inhumane?

The furious debate over migrant detention along the nation’s southwest border with Mexico has put these questions front and center in American politics. But they’re not new. The treatment of people on the margins of American life — criminals, immigrants, civilians in overseas war zones — has always proven a challenge to our democratic ideals.

Yet beginning in the 1920s, activists waged a half-century-long struggle to persuade the Supreme Court to stop abusive practices by authorities. After World War II, the United States also committed itself to the promotion of international human rights. These two signal developments have been seriously eroded, first by the excesses of the war on terrorism and now by the Trump administration’s targeting of the unwelcome and powerless, whether they are undocumented immigrants in the United States or asylum seekers. We have returned to a pattern of willful ignorance, one that allows us to avoid grappling with deeply immoral policies.

Threats to our safety, perceived or real, have long justified the kind of “tougher policies” that President Trump has demanded for the southern border. He may not be well versed in history, but the president is joining a long line of elected officials who found that rights and basic norms are easily jettisoned when they collide with demands for greater security. Across our history, from the Indian wars to the war on terrorism, officials were quick to call for “tougher policies” and slow to fill in the details. In 1901, President Theodore Roosevelt ordered military commanders in the Philippines to adopt “the most stern measures” to punish Filipino guerrillas; in a subsequent campaign the Marines followed orders and left a trail of devastation and death across the island of Samar. But such methods were justified as a “military necessity.”

Roosevelt rationalized the brutal treatment of alleged guerrillas by citing the need to stanch the threat to security. This kind of evasive language has repeatedly prevented us from coming to terms with acts of cruelty carried out in the name of national security. We’re seeing that pattern again.

What precisely did Trump officials mean when they announced “a tougher direction” for immigration? They certainly imply more than just the proposals for new fees and regulations reducing the numbers of asylum seekers. Are the American people ready to confront the reality of harsh security measures? Or will we retreat into euphemisms such as a “hardened” border and “zero tolerance” for migrants that covers up the reality of what is actually happening on the border?

We are deciding day by day whether to extend the basic protections of law and civilization to the people arriving on our border. For much of the nation’s history, the prohibition on cruelty and torture in American law rested on the premise that the fundamental decency of Americans, especially empathy for fellow citizens, would make such violations unthinkable.

But our capacity to empathize begins to fray at the margins, and we grow less certain about who, exactly, deserves protection. Those deemed undeserving, unwelcome or powerless — Native Americans, the enslaved, prison inmates and criminal suspects — have commonly suffered forms of violence and abuse that violated our national principles. Some people are inside the protection of the law, and some are cast out from it.

In fact, we’ve already seen this pattern. Accusations of cruelty and torture by ICE and CBP agents have been circulating for years, and they follow this well-worn pattern. Official denials are followed by investigations that almost always find limited violations by “a few bad apples,” not the kind of systemic abuse that would call our broader policies into question.

This pattern has long historical roots: When investigations of police brutality in Washington during the 1930s revealed widespread use of abusive interrogation methods, the police superintendent, whose predecessors had dismissed similar allegations for decades, only grudgingly conceded that a few officers may have gone too far in their resolve to protect the public.

Focusing on bad apples has long allowed us to excuse morally bankrupt policies. We need to realize that human rights abuses on the southern border aren’t spurred by immoral actors in ICE or CBP, but rather because of a political leadership that can’t or won’t come up with humane immigration policies.

Congress needs to do its job and exercise scrupulous oversight of Trump’s immigration policies. But the real solution to our border crisis is to demand that all elected officials, from local sheriffs to senators, responsibly address immigration and human rights. Trump declared that he wants immigration to be a key campaign issue in 2020. His opponents should accept that challenge. We must shine a spotlight on cruel and illegal policies that undermine our national ideals and find the wisdom and the courage to do better.

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Join the New Due Process Army today and fight for human rights, the rule of law, accountability for Government scofflaws, and a return to basic human decency! Fight for a better future for ALL Americans!

PWS
05-07-19

WASHPOST: PROFESSOR LINDSAY MUIR HARRIS OF UDC LAW & JOAN HODGES WU OF THE ASYLUM SEEKERS ASSISTANCE PROJECT (“ASAP”) SPEAK OUT AGAINST TRUMP’S LATEST CRUEL & COUNTERPRODUCTIVE ATTACK ON VULNERABLE ASYLUM SEEKERS!

https://www.washingtonpost.com/outlook/2019/05/01/asylum-seekers-leave-everything-behind-theres-no-way-they-can-pay-trumps-fee/?utm_term=.f48b5ca8c238

Lindsay & Joan write:

On Monday evening, President Trump issued a memointended to make life more difficult for those seeking asylum in the United States. The memo calls for regulations that, among other things, require asylum seekers to pay a fee to apply for asylum and their first work permit, and denies work permits to immigrants who entered the United States without inspection, or “illegally.”

Since the creation of our asylum system, after the United States signed the Protocol to the Refugee Convention in 1968 and enacted its own Refugee Act in 1980, there has never been a fee to apply for asylum. Filing for asylum is free for a reason under U.S. law and in the vast majority of other countries: Seeking asylum is a human right.

There are already plenty of obstacles and limits to that right in our existing immigration system. For instance, asylum seekers have to wait to receive permission to legally work in the United States. Congress codified a waiting period for work permits for asylum seekers in 1996. Asylum seekers can apply for a work permit 150 days after they have submitted an application for asylum. The work permit is issued sometime after 180 days.

Introducing a fee to apply for asylum and to apply for the first work permit not only is cruel but also goes against common sense and U.S. economic interests. Asylum seekers typically cannot afford to pay even a nominal fee. Trump’s memo does not specify the fee amount, only that it would “cover the cost of adjudication.” But even the rumored $50 fee would be too high for any of our clients. All individuals present in the United States have a legal right to apply for asylum, and that legal right should not depend on ability to pay. Many asylum seekers flee their countries with nothing more than the clothes on their backs and the cash in their pockets. Other asylum seekers come with their life savings, which are often quickly depleted as they pay for living expenses awaiting adjudication of their asylum claims.

Years ago, one of us worked with one client who was homeless and lived in her car while she waited for her day in court. One of our current clients lives in a public storage locker because he cannot afford to pay rent. We have asylum-seeking clients who go hungry so that their children can eat, or who drink water to “feel full.” Other clients go without medication to treat chronic illnesses such as diabetes and high blood pressure because they lack health insurance and money to pay out of pocket for their medications. Asylum seekers are not a population with an ability to pay extraneous fees.

This new fee would also put asylum seekers further at risk of being exploited, or even physically harmed, abused or trafficked within the United States. Asylum seekers are already vulnerable to such predatory behavior. For example, years ago, one of us worked with a young woman from Niger who fled a forced marriage and female genital mutilation. As an asylum seeker in the United States, she had no way to provide for herself and found herself passed from one abusive situation to another. By the time she filed her asylum application, she had been repeatedly raped, held captive and forced to work in various homes. She was providing free child-care in exchange for lodging but forbidden from leaving the house.

And contrary to some misconceptions among the public (and the Trump administration), asylum seekers are generally ineligible for any form of federal or state aid. Indeed, even after they are granted asylum, they do not receive significant support from the government. Between paying for rent, food and other living expenses, and not being able to work for a significant period of time, how will asylum seekers pay the fee?

Asylum seekers, who have lost everything and been forced to leave their countries and start over in ours, have a tremendous amount to give to our communities if given the chance. Take Constance, for example, one of our West African clients. In 2015, while she was seeking asylum, she commuted two hours by bus each way to a factory to cut fruit during a 12-hour overnight shift. She now works as a French language newscaster for a major news and radio outlet. Another client is a microbiologist who worked waiting tables until he found a job directing a lab at a hospital. As one of our clients said: “I know I’ve lost my country, but I haven’t lost my skills. I can still contribute.” Requiring these individuals to remain idle while jobs go unfilled and immigration court and asylum office backlogs persist could mean years in limbo and is a waste of talent, expertise and the hard work asylum seekers contribute.

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My good friends Lindsay and Joan are certainly two of the “good guys” — true role models for the “New Due Process Army.”
They have devoted their professional lives to making America a fairer and better place and helping the most vulnerable among us to have a fair shot at asylum and to contribute their full talents to our society. A terrific “win-win” for us and for asylum seekers. And they both work on “shoestring budgets” — giving much and asking little — just like the refugees they are helping!
What if we had a Government that recognized, honored, and worked with such talented folks to solve problems? Imagine what we could achieve with cooperation and positive efforts, involving real expertise from those who actually know and work with asylum seekers, and who therefore recognize asylum seekers as fellow human beings and great potential assets to our country?
PWS
05-03-19

WASHINGTON POST/ABC POLL: TRUMP’S “CRUEL, MALICIOUS INCOMPETENCE” APPROACH TO ASYLUM HIGHLY UNPOPULAR & INEFFECTIVE: Dems Can Build Support By Strengthening Current Asylum System & Making It Work! — The “Real Face” Of “Border Security” Has Little Or Nothing To Do With Trump’s White Nationalist Rants & Barrage Of Lies!

https://www.washingtonpost.com/politics/2019/04/30/trumps-asylum-changes-are-even-less-desired-than-his-border-wall/

Aaron’s Blake reports for the Washington Post:

President Trump has made immigration crackdown a central focus of his presidency, and a new Washington Post-ABC News poll shows a growing number of Republicans and Democrats agree that the worsening situation on the border is a “crisis.”

But Trump is offering a solution that relatively few Americans like. In fact, his newly announced decision to make it harder to seek asylum is even less popular than his border wall national emergency, according to the same poll.

The Post-ABC poll shows that 30 percent of Americans favor making it more difficult for those seeking asylum in the United States to obtain it. About as many — 27 percent — favor making it easier, while 34 percent want to leave the process as-is.

Even among Republicans, just 46 percent favor making it more difficult. Among the few groups where a majority support the idea are conservative Republicans (51 percent) and those who approve of Trump (53 percent). Even in the latter group, though, 29 percent say leave the system as-is, and 11 percent want to make it easier to seek asylum.

Late Monday, the White House announced that it was proposing a new fee for asylum seekers. It is also seeking to prevent those who cross the border illegally from obtaining work permits, and it set the ambitious goal of requiring asylum cases to be decided within 180 days.

There has been a huge uptick in the number of asylum seekers in recent months. More than 103,000 immigrants crossed the U.S.-Mexico border last month, and 60 percent of them were Central American families who have requested asylum. The system has become overburdened, and even critics of Trump’s immigration approach acknowledge the situation must be addressed.

But saying there’s a problem and saying this is the solution are two different things. Trump has repeatedly argued that asylum seekers are exploiting weak U.S. immigration and asylum laws and that many of them are criminals and gang members who are told to claim asylum even though they don’t need it. He has called the concept of asylum “a big con job.” Yet, even as the situation at the border is exacerbated by a growing number of asylum seekers, Americans are still clearly uncomfortable with increasing the burdens on them.

Because the poll was conducted before Trump’s announcement, it didn’t test the specific details of his proposal. A fresh debate about the specific proposals could feasibly change the levels of public support. But Trump has been pushing the idea that asylum seekers are exploiting the system for months, and it doesn’t seem to have led to a chorus of support within his base for tightening the rules.

The level of support is even less than the backing for his national emergency to build a border wall. The Post-ABC poll shows just 34 percent of Americans favor that, while 64 percent oppose it. But at least on that proposal, Trump’s base is strongly onboard. Seventy percent of Republicans back the border wall national emergency.

Trump’s overall approval on immigration stands at 39 percent, with 57 percent disapproving, according to The Post-ABC poll.

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Bottom line: On asylum, the public essentially is split in thirds among 1) more generous; 2) less generous; and 3) current system. That means that neither radical retractions nor radical expansions of the current system are likely to be achievable at present. That opens the door for the Dems to put together a powerful coalition to strengthen and fairly and efficiently administer the current asylum system.  

It’s not rocket science — more like basic governing competence. Here are the elements:

  • Establish an independent Article I U.S. Immigration Court;
  • Invest in representation of asylum seekers; 
  • Add more Asylum Officers, Immigration Judges, and Port of Entry Inspectors;
  • Provide comprehensive basic and continuing training for all asylum adjudicators from experts in asylum law;
  • Use prosecutorial discretion (“PD”) to reduce Immigration Court backlogs to allow Immigration Judges to concentrate on timely hearings for recently arrived asylum cases;
  • Reduce immigration detention;
  • Hire more anti-smuggling, undercover, and anti-fraud agents for DHS;
  • Invest in improving conditions in “sending” countries in Central America.

It would 1) cost less than the money Trump is now squandering on “designed to fail” enforcement and detention efforts; 2) create a political constituency for funding and future improvements; 3) protect human rights; and 4) give the U.S the substantial benefits of integrating asylees and their talents into our society and economy through the legal system. Those found ineligible could also be removed in a humane and timely manner after receiving due process.

Not surprisingly, we just learned today that Trump’s “Malicious Incompetence Program” at the border has run out of money and is requesting another $4.5 billion from Congress. https://www.washingtonpost.com/business/economy/white-house-asks-congress-for-45-billion-in-emergency-spending-for-border/2019/05/01/725e2864-6c23-11e9-8f44-e8d8bb1df986_story.html

Now is the time for House Dems to hang tough on demanding some real border security for the money — in plain terms, require the money to be spent in exactly the ways described above, not on more of Stephen Miller’s White Nationalist, anti-asylum schemes and gimmicks.  

Additionally, there should be specific prohibitions on: 1) wall and barrier building beyond what Congress has already authorized; 2) any additional spending for detention of non-criminal asylum applicants beyond the time needed to give them credible fear interviews; 3) family detention; 4) “tent cities;’ 5) “Remain in Mexico,” 6) “metering” of asylum applicants at Ports of Entry; 6) charging fees for asylum applications; 7) denial of work authorization for non-frivolous asylum applicants; 8) denial of reasonable bond to asylum applicants unless individually determined to be “threats to the community;” and 9) use of the military except to assist in providing humanitarian aid. There should also be a specific mechanism for accounting and constant Congressional oversight on how the Administration spends the extra funding.   

PWS

05-01-19

DHS KAKISTOCRACY RIPS OFF VULNERABLE IMMIGRANTS AND THEIR FAMILIES!

https://www.washingtonpost.com/immigration/ice-is-holding-204-million-in-bond-money-and-some-immigrants-might-never-get-it-back/2019/04/26/dcaa69a0-5709-11e9-9136-f8e636f1f6df_story.html?fbclid=IwAR3vw-xzEXl2SSo2e-F0_kT54OSpZcckjBQz1WK26d2OBnsy0Rv6AADtniw&utm_term=.3a3765b59dfc

Meagan Flynn reports for WashPost:

U.S. Immigration and Customs Enforcement is holding on to more than $200 million in bond money that belongs to immigrants who have been in the agency’s custody, cash that has yet to be returned to thousands of immigrant families or the U.S. citizens who bailed them out, according to data obtained through open records requests.

The unreturned bond money stood at $204 million as of July 31, 2018, according to the data, which immigration law clinics at Stanford University and the University of California at Davis obtained and shared exclusively with The Washington Post. The pot of immigrant bond money grew by $57.3 million between September 2014 and July 2018, the data shows.

More than 18,000 bond payments went unclaimed in that four-year period, according to the data.

Though the trust fund — which the Treasury Department maintains — cannot be used for any other purpose, getting the money back to immigrants and their friends and families has proved a difficult and lengthy process. ICE officials said the agency makes multiple attempts to reach the people who posted the bond, but paperwork and checks mailed to them sometimes are undeliverable or receive no response, and it can be impossible to find the people if they moved out of the country. Those who do submit claims, ICE said, receive their funds within a month.

ICE did not provide data on average wait times to claim the money, and several lawyers and immigrants told The Post they have in some cases waited a year or longer after submitting for reimbursement.

Invisible walls: The lives altered by Trump’s crackdown on immigration

Numerous immigration attorneys said the system for reclaiming the funds is mystifying and nearly impossible to navigate without a lawyer or English-language proficiency, and some who pay the bonds are unlikely to see the money again. As bond amounts remain on the rise, lawyers said thousands of people are putting their life savings in ICE’s hands to secure an immigrant’s temporary freedom without any idea of when or if they’ll see the money again. Many immigrants say it takes far longer than a month to reclaim their funds.

“The toll on a poor family having to pay thousands of dollars in bond can’t be overstated,” said Jayashri Srikantiah, director of Stanford’s Immigrants’ Rights Clinic. “Clearly, something is breaking down when there are hundreds of millions of dollars sitting in an account that belongs to those immigrant families. If nothing else is clear, that is clear.”

Srikantiah and Holly S. Cooper, co-director of UC Davis’s Immigration Law Clinic, said they intend to push for congressional oversight of ICE’s bond system. They said the amassing of bond money indicates a serious problem and could amount to a massive theft from people who can least afford it.

Marco Antonio Torres Rojas, a father of three from Mexico, won his immigration case in August, but it took roughly seven months for ICE to return the $25,000 bond his family and friends paid to gain his release — seven years ago.

When he was detained in 2012 — for overstaying an H-2B work visa — an immigration attorney assured his family that paying the $25,000 bond would be the only way to stave off deportation. But for Rojas, a landscaper and snowplow driver in Minnesota, the sum appeared impossible. He and his wife had just a few thousand dollars in savings.

“We felt a sense of desperation,” Rojas said.


A Guatemalan migrant and his 10-year-old son look at the Miami cityscape outside an immigration courthouse in January. Some immigrants who are required to pay bond have to make difficult decisions about posting the cash payments, knowing they might not see the money back for years. (Brynn Anderson/AP)
Pay legal fees, or bond fees?

While criminal defendants typically can pay a bondsman 10 percent of the set bail amount to gain release, in the immigration system about 90 percent of bonds require cash for the whole amount upfront.

ICE initially sets bonds on a “case-by-case basis,” the agency said, though not everyone is eligible for bond or release.

For those who are eligible, bonds have been steadily rising since the second half of the Obama administration, after an influx of Central American immigrants. The average bond set by a judge was $3,000 to $5,000 for years, but it rose to $8,000 in fiscal year 2016, according to data from the Executive Office of Immigration Review. Bonds have remained at that level or slightly higher into the first months of fiscal year 2019.

“I hear from people who call me asking, ‘Should I use the money to pay legal fees or pay the bond fees?’ ” Cooper said. “ ‘I only have one truck. If I sell it, it’s $5,000.’ ”

Once the money is raised — often from numerous people in each case — only a U.S. citizen or legal permanent resident can post the bond. Because many immigrants don’t have a close relative who fits the definition, they sometimes turn to acquaintances or neighbors, said Michelle N. Mendez, an immigration attorney at the Catholic Legal Immigration Network in Silver Spring, Md. That person, according to ICE policies, is the only one who will ever get a copy of the bond paperwork.

Mendez said many immigrants don’t know that once the bond is posted, only the person who posted the bond can get it back.

The person who posted the bond money might move across the country or even out of the country; they might lose the original paperwork required to reclaim the money back, creating additional hurdles; the obligor might die.

Gloria Contreras Edin, an immigration attorney in Minnesota, said she had one undocumented client whose obligor was on the brink of dying of cancer. Before the man died, her client wheeled him into her office so he could sign over the bond responsibilities to someone else. Her client, Anibal El Verengue, a Guatemalan who lives in Minnesota and was ordered removed in 2015 for entering the country illegally, said he would not have known to do this if he did not have an attorney to advise him.

“One friend who I owe money won’t even speak to me, because he doesn’t trust me anymore,” El Verengue said, whose application for asylum is pending.


María Sosa washes dishes in her apartment in the Panorama City neighborhood of Los Angeles. Her husband won his immigration case in October, and it took five months to get his bond payment back from the federal government. (Ivan Kashinsky for The Washington Post)
Money just sits there

Mendez said she discovered how dire the problem was in 2009, two years after a well-publicized immigration raid at a Baltimore 7-Eleven resulted in numerous deportations. When Mendez checked in on some of the families of the deported men, she discovered they were living in poverty.

“I wanted to make sure that when the breadwinner got deported, the family would have some money,” Mendez said. “Those were the cases where I started to think: How do we get this money back? Nobody really knew . . . At that point, they’re really so far removed from the bond posting — thinking, ‘Oh well. I lost my case. I’m not entitled to anything’ — that they just let it be.”

“ICE does not notify the alien for whom the bond was executed, because its contract is with the obligor,” ICE said in a statement.

ICE makes three attempts to locate the person, but if the person who posted the bond did not file paperwork indicating a change of address, it might not be possible to find them.

And even those who follow the procedures said the process is rife with delays.

María Sosa, a legal permanent resident in California, said her husband won his immigration case in October but that she did not receive a bond cancellation notice from ICE until January. Unable to speak English, she made numerous visits to an ICE office to understand what she needed to do to get her money back; she received it on March 29.

She said she and her husband could not afford to attend his funeral.

“The whole system is created in a way that doesn’t foster the accessibility to those funds,” Contreras Edin said. “And so many times the money is left and just sits there.”

ICE pays interest on bond money while unclaimed, up to one year. After that, the funds are transferred to the Treasury Department. The Treasury Department said it does not know what year the $204 million began accumulating. The U.S. government is not allowed to use the money unless immigrants fail to adhere to bond conditions and forfeit it, otherwise known as a bond breach.

Bonds can be breached for reasons such as failure to show up in court or failure to turn the immigrant over to authorities if ICE asks the obligor to do so. But there can also be mistakes. Mendez recalled a case in which ICE breached her client’s bond for failure to show up to be deported — but her client was still appealing the removal order, and ICE had apparently missed that information, according to 2015 correspondence with ICE she provided to The Post.

About $34.5 million in bonds are forfeited each year, money that ICE uses to defray detention and apprehension costs.

Advocates at Stanford and UC Davis argue that the arrangement creates a conflict of interest.

“They obviously have incentive to not exercise discretion favorably and to breach more bonds,” said Emily Child, who worked on the Stanford and UC Davis research with Cooper. “That money goes right back into their pockets.”

ICE said that all breach decisions can be appealed to the U.S. Citizenship and Immigration Service. When breaching bonds, agents consider whether the violation was an accident or intentional and whether the obligor or immigrant was acting in good faith, ICE said in a statement.

‘An incredible amount’

Rojas was getting nervous. It was March, and he had been waiting seven months for a check that would be addressed to his brother’s wife, the U.S. citizen who posted his bond.

He called his attorney, Contreras Edin, expressing his fear that something had fallen through the cracks. The lawyer’s office contacted ICE bond specialists. A few weeks later, the check arrived.

Cooper and Srikantiah said they believe that working with an attorney is crucial to recovering the bond money, and many immigrants and those who post the bonds don’t have lawyers or can’t afford one.

They argue that ICE’s systems are outdated and cumbersome, and they believe immigrants should receive copies of their bond paperwork in a language they can understand, something that could mitigate the possibility of fraud and ensure that those who pay bonds receive the money back when they are entitled to it.

“While something like $5,000 or $10,000 might not be a lot of money to the federal government, to an individual family that has pulled all of their money together in order to get a loved one out of detention, it’s an incredible amount,” Srikantiah said. “With detention growing at the rate it is, we think this is a really good time for Congress to provide some oversight and actually investigate why this is happening.”

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

My favorite comment:

“So, we steal their children and their money.  How contemptible.”
Says it all!
PWS
04-28-19

COLLISION COURSE: 3rd Cir. Case Shows How Article III Courts’ Demand For Cogent, Detailed Analysis From Immigration Judges Will Collide Head On With Barr’s Plans To Further “Dumb Down” The Immigration Court System! — Result Could Flood Article IIIs With More “Idiot Orders!” — Liem v. Attorney General

181955p

Liem v. Attorney General, 3d Cir., 04-19-19, published

PANEL: HARDIMAN, SCIRICA, and RENDELL, Circuit Judges

OPINION BY:  Judge Rendell

KEY QUOTE:

Because the BIA did not explain its conclusion and did not meaningfully consider much of the evidence presented by Liem, we will grant his petition for review, vacate the denial of his second motion to reopen, and remand to the BIA for further proceedings consistent with this opinion. In doing so, we do not decide whether Liem has shown materially changed conditions in Indonesia warranting reopening of his removal proceedings. Rather, we conclude that the abovementioned evidence contradicting the BIA’s determination is strong enough to require the BIA to afford it more thorough consideration. We remand for the BIA to meet its heightened duty and meaningfully consider all of the evidence, which may or may not yield a different result.

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

Welcome tho the world of today’s BIA, where it’s all about numbers — who cares about analysis.

And, Barr fully and contemptuously intends to make it even worse — stuff it down the throats of the Article IIIs — by encouraging more use of non-analytical “summary affirmances” at the same time that Immigration Judges are being pushed to enter more “idiot orders” denying relief without any real reasoning. Then, he’s going to count on “Trump’s Chumps” among the Article IIIs to “Chevron” and “Brand X” themselves right out of existence.

So, we’re about to find out how much integrity the Article IIIs really have. Will they resist and appropriately “stuff” Barr’s blatant, unethical attempt to shift the “backlog” to them by “just saying no” and returning these cases en masse? Will they finally step up to the plate and rule this entire Immigration “Court” farce unconstitutional, halting most removals until Congress establishes a Due Process compliant independent system?

Or, as Trump, Sessions, and now Barr count on, will they function as “Trump’s Chumps,” mere “stationmasters on the deportation railroad” whose job it is to count the cattle cars of humans heading south? Folks in robes willing to “go along to get along” with the “new Jim Crows” by tanking their responsibility to enforce the Constitution for migrants. Just “defer” to non-existent analysis and parodies of court proceedings because we’re dealing with the vulnerable who can’t fight  back.

History will be watching how they perform. So far, Trump & Co. haven’t been completely right, particularly about the lower Federal Court judiciary. They have encountered quite a few judges appointed by both parties ready and willing to stop the Administration’s all out assault on the rule of law and our Constitution.

But, the Trumpsters  haven’t been completely wrong about the higher Federal Courts either. The totally disingenuous performance of the “Trump Chump Five” during oral argument this past week at the Supremes on the “Census Case” — a “no brainer” teed up by the lower courts that an impartial and functional Court would have used to deliver a resounding 9-0 rebuke of Trump’s “DOJ Legal Sycophant Ethics-Free Team” — could have been scripted by Stephen Miller with a little help from Steve Bannon.

The big problem here is that folks in the “ivory tower” of the U.S. Circuit Courts and the Supremes operate outside the real world. They don’t seem to be able to picture themselves or their families or loved ones in the cattle cars heading south on the railroad. Indeed, unlike trial judges, they  don’t even have to face the folks they are disenfranchising, dehumanizing, and whose legal rights they are trashing.

Their failure to connect the law with humanity, human rights, moral values, and simple fundamental fairness may well be the downfall for all of us. At some point, they might find that the “Liar-in-Chief” and his toadies no longer need their stationmasters — that complicit judges have become as dispensable as the humans whose lives and rights they have failed to protect.

PWS

04-27-19

 

 

MARTY ROSENBLUTH, ESQUIRE: AMERICAN HERO — In An Era Where Courage, Integrity, & Dedication To The Rule of Law Are Scorned By Political Leaders & Even Ignored By Some Federal Judges, Rosenbluth Stands Tall With Those Whose Legal Rights & Very Humanity Are Being Attacked Daily By A System Gone Badly Awry — Profile By Simon Montlake of The Monitor

https://apple.news/Amlo-pXUXQOijDJIp8pqX7w

 

Simon Montlake of The Monitor (L) & Marty Rosenbluth, Esquire (R)

Simon  writes:

Long shot lawyer: Defending migrants in US’s toughest immigration court

Lumpkin, Ga.

A hazy sun rises over pine-covered hills as Marty Rosenbluth pulls out of his driveway and hangs a left on Main Street. Outside town the two-lane road dips, then climbs before Mr. Rosenbluth slows to take the right-hand turnoff to Stewart Detention Center, a privately run prison for men who face deportation from the United States.

This is where Mr. Rosenbluth, a lawyer, can be found most days, either visiting clients inside the country’s largest immigration detention center or representing them before a judge in an adjacent courtroom. It’s a mile outside Lumpkin, a forlorn county seat that most days has fewer inhabitants than the prison, which has 2,000 beds.

Mr. Rosenbluth parks his red Toyota Prius in the lot and walks to the entrance. He waits at the first of two sliding doors set in 12-foot-high fences topped with coils of razor wire. The first time he came, the grind and clang of the metal doors unnerved him. Now he doesn’t notice, like the office worker who tunes out the elevator’s ping.

Passing the gates, Mr. Rosenbluth enters the court annex and stoops to remove his black shoes for the metal detector. He shows Alondra Torres, his young Puerto Rican assistant who’s on her first day of work, where to sign in and introduces her to the uniformed security guard standing by the detector.

Mr. Rosenbluth, who has a shaved head, black-framed glasses, and a two-inch gray goatee, smiles and spreads his hands. “I’ve never had a paralegal before,” he proudly tells the guard.

Lawyers are in short supply on the ground at Stewart Immigration Court, one of 64 federal courts tasked with deciding the fate of migrants who the U.S. government seeks to send home. The prison is more than two hours from Atlanta, and lawyers often wait hours to see clients and are allowed to bring only notebooks and pens into visitation rooms.

Lawyers who work with these handicaps face longer odds. On average, detained migrants are far less likely to win asylum than those on the outside, in part because it’s much harder to prepare and fight a case from behind bars. Still, of all immigration courts, this may be the toughest of all. “The reputation of Stewart among attorneys is that you will lose,” says Mr. Rosenbluth.

That deters many from taking cases here. But not Mr. Rosenbluth. He moved to Lumpkin two years ago in order to defend people who may have a legal right to stay in the U.S. His clients include recent migrants from the U.S.-Mexico border, whose continued arrival has become a lightning rod for critics of U.S. asylum law and border security. But the majority of his cases involve men who have lived in the country for years or decades, fathering children and putting down roots.

For detainees, having an attorney in immigration court makes a big difference. A 2015 study found that detained immigrants who had legal counsel prevailed in 21% of cases. For those who represented themselves, the success rate was just 2%. Unlike criminal defendants, immigrants have no right to a public defender.

Mr. Rosenbluth, who works for a law firm in Durham, North Carolina, is the only private attorney in Lumpkin. He’s never advertised his services, but word gets around; detainees will pass him notes during prison meetings. Then he consults with his boss on whether to pursue a case.

“If a case has no chance of winning, we just don’t take it,” he says.

But it’s not just about the strength of an individual’s asylum case or bond request. It’s also about who will hear it: Will it be a judge who has denied scores of other similar motions? Or will it be a judge who might, just might, set a bond that a family can afford so their father or son can go home?

“Your judge is your destiny,” says Monica Whatley, a lawyer with the Southern Poverty Law Center.

Even when Mr. Rosenbluth thinks he has a strong case and the right judge, he knows that his client is more likely than not to be deported – and that an immigration judge in New York or Los Angeles may well have ruled in his favor. It’s usually then that he circles back to a nagging moral question: Is he stopping systemic injustices or just greasing the wheels of the deportation industry?

Human rights crusader 

Mr. Rosenbluth’s route to becoming a champion of immigrants’ rights was circuitous. In 1979 he dropped out of college to become a union organizer. A few years later, in 1985, he moved to the West Bank to work with Palestinian trade unions on conditions in Israel. His original plan was to stay three months, then go back to the United Auto Workers. He ended up staying seven years.

Back in the U.S., he worked for Amnesty International on Israeli and Palestinian issues as a researcher and spokesman. The job required Mr. Rosenbluth, who is soft spoken and a natural introvert, to speak publicly about one of the world’s most exhaustively debated conflicts. But he learned how to talk to a crowd and to prepare for tough questions.

Having worked for decades on labor issues and international human rights, law school seemed a good fit. By then Mr. Rosenbluth was in his late 40s. He had moved to North Carolina, which was emerging as a testing ground for stricter enforcement of immigration law and deportation procedures.

“I’m still working on human rights, just from a different angle,” he says. “And these are human rights violations that my government is committing right here at home.”

Counties in North Carolina were early adopters of an Immigration and Customs Enforcement (ICE) program that trained local law enforcement officers to locate and turn over unauthorized immigrants. The program predated President Barack Obama, but his administration supported its expansion as a way to target criminals for deportation.

After graduation, Mr. Rosenbluth found work as an immigration lawyer for nonprofits in North Carolina that were inundated with calls from families seeking the release of detained members. Most had no convictions for felonies or violent crimes. Still, the Obama administration insisted that it was deporting criminals and ensuring public safety.

It was maddening, but it could also be useful: Lawyers would challenge deportations in court as contrary to the administration’s policy of going after only serious criminals. “We could use their own propaganda against them to try to get our clients released,” says Mr. Rosenbluth.

He started hearing about Stewart, a remote facility in Georgia that was housing detainees from across the region. Built as a private prison but never used, it reopened in 2006 as a detention center contracted to ICE. Judges in Atlanta ruled on deportations via video link before the Department of Justice opened a court inside the prison complex in 2010.

That same year Mr. Rosenbluth made his first trip to Stewart. “I was scared witless because it’s so intimidating,” he says. It wasn’t just the metal gates, prison garb, and taciturn guards. He couldn’t confer with his client before the hearing; even a handshake wasn’t allowed.

Mr. Rosenbluth lost his first case. He would lose virtually all his cases at Stewart the next six years while traveling back and forth from North Carolina and staying in the nearest hotel, 36 miles away. He hit on the idea of opening a nonprofit law firm in Lumpkin to provide free counsel to as many detainees as possible. He even had an acronym: GUTS, for gum up the system.

When he pitched the idea to national liberal donors, they blanched. It wasn’t the right time to gum up the system, he was told. Mr. Obama was working on comprehensive immigration reform. The president needed to hang tough on removals of unauthorized immigrants. There were “Dreamers” to protect.

Yeah, thought Mr. Rosenbluth. And their parents are being locked up and deported every day.

Courtroom coups

It’s 8 in the morning when the court rises for Judge Randall Duncan. As he settles into his black wingback chair, three rows of Latino men in prison jumpsuits stare back from wooden benches. One of them is Hugo Gordillo Mendez, a Mexican living in Goldsboro, North Carolina, who was detained in January after neighbors called the police to report an incident at his house. His wife, Diana Gordillo, a U.S. citizen, sits next to Mr. Rosenbluth. The previous day she drove nine hours to attend today’s bail hearing, and she’s hoping Mr. Rosenbluth can persuade the judge to release Mr. Gordillo on a bond.

Ms. Gordillo locks eyes for a minute with her husband. He stares at his feet.

Getting out on bail or a bond is a big deal. Lawyers advise clients to do everything possible to secure their release, preferably with a U.S. citizen and family member as sponsor, so they can go back to their community and fight their deportation there instead of at Stewart. “When people get out of Stewart, they get as far away from there as they can,” says Sarah Owings, an immigration lawyer in Atlanta.

Moving to another jurisdiction is no guarantee of success, of course. But the chances improve significantly. Between 2013 and 2018, some 58% of asylum claims in U.S. immigration courts were denied, according to Syracuse University’s Transactional Records Access Clearinghouse. Over the same period, the denial rate at Lumpkin was 94%. Take Judge Duncan: Of 207 asylum cases that he heard in those five years, only 12 were granted. (Others may have won on appeal.) Denials of bond requests are high at Lumpkin too.

Mr. Gordillo’s case begins with an ICE lawyer citing the immigrant’s status and his arrest for assault as reasons not to release him. “The respondent has not shown that he’s not a danger,” he says.

Mr. Rosenbluth points out that the assault charge was dismissed and that Mr. Gordillo supports his wife and two U.S.-born children, one of whom has a severe medical condition. “His wife, Diana, is in court today,” he says, gesturing at her. She suffers anxiety and has bipolar disorder, he adds. And she will be filing a petition for Mr. Gordillo to become a legal U.S. resident.

“I think that we have a very strong, very viable” case against deportation, he says. “We ask that a reasonable bond be set.”

Judge Duncan takes a few minutes to decide, but as he sums up the family’s medical hardship, he’s already scribbling on a document. “Bond is set at $5,000,” he says.

Mr. Rosenbluth ushers Ms. Gordillo out of the courtroom and explains how she can pay the bond; she has already raised $4,300, and her father will loan her the rest. “He’ll be out today,” Mr. Rosenbluth says, his lawyerly demeanor giving way to giddiness.

Had he lost, Mr. Gordillo could have appealed the ruling and contested his removal to Mexico. But that might take months, and the longer his clients are locked up, the more likely they are to accept deportation as a way out.

“There’s no question that ICE uses incarceration as a litigation strategy. They know people will give up,” he says.

 Judges under pressure

While immigration judges are civil servants who are supposed to apply federal law, studies have found wide variations among judges and between courts in how they handle cases. Being assigned to a judge in Lumpkin or Los Angeles is a distinction with a difference – and for defendants who fear persecution in their home country, it’s a distinction with life-threatening consequences.

Some experts blame the Department of Justice for failing to adequately train and equip judges to handle complex immigration cases. “I think it’s a question of resources,” says Jaya Ramji-Nogales, an assistant professor of law at Temple University and co-author of a study of asylum adjudication called “Refugee Roulette.” “The political will is about building border walls.”

As the backlog of immigration cases has grown, so has pressure on judges to speed through dockets. Former Attorney General Jeff Sessions drew criticism last year for faulting judges who failed to clear 700 cases in a year. Judge Dana Leigh Marks, president emeritus of the National Association of Immigration Judges (NAIJ), has called the push to have understaffed courts investigate complex claims the equivalent of “doing death penalty cases in a traffic court setting.”

Ms. Ramji-Nogales found wide variations in asylum claim rulings filed in different courts. Women judges were on average more likely than men to grant asylum, and judges who joined the bench after careers as federal immigration prosecutors were more likely to deny claims.

Judges who see only detainees in their courtrooms develop a thick skin, says Paul Schmidt, a retired judge. “If all you’re doing is detained [cases], you get the preconception that all these cases are losers,” he says. “If you get in a denial mode, it gets harder for judges to see the other side.”

Mr. Schmidt, a former chairman of the Board of Immigration Appeals, spent 13 years as an immigration judge in Arlington, Virginia. He says the judges who go to work in these courts “probably assume that it’ll be mostly denials, and that’s fine with them.” This also serves the political agenda in Washington, says Mr. Schmidt. “People who are known for moving lots of cases for final removal are classified as productive. And there’s a lot of pressure for moving cases.”

Ashley Tabaddor, an immigration judge in Los Angeles and current president of NAIJ, agrees that courts need more resources. But she pushes back against comparisons of harsh versus lenient judges and says there is no “right number” of denials. “Each case is decided on its merits,” she says.

For most of the men in Judge Duncan’s court this morning, this is their first appearance. After he hears another bond motion – “denied” – he asks the 13 remaining detainees to rise and raise their right hands to affirm they understand their legal status. “Sí,” the men mutter. Speaking via a Spanish interpreter, Judge Duncan explains that they have the right to contest their deportation and to appeal any rulings.

Respondents also have the right to hire an attorney, Judge Duncan says. “How many of you have an attorney?” he asks. Two men raise their hands and are given more time to prepare. The others are called up to the bench. The judge rules all will be deported.

Lumpkin’s lone lawyer

After Mr. Rosenbluth took the job here, he bought a house in town for $20,000. He invites visiting lawyers to rent out his second bedroom and share his home office so they can represent clients at Stewart. But a trickle of defenders has not become a flood. Some days Mr. Rosenbluth is the only lawyer in court.

Attorneys who travel to Stewart grow weary of prison lockdowns, talking to clients through plexiglass windows, and dealing with pettifogging guards. “It’s meant to grind you down,” says Ms. Owings, who has defended several detainees at Stewart.

To save time, most lawyers skip client visits and phone into court hearings in Lumpkin. Mr. Rosenbluth never does this. “I consider it to be borderline malpractice,” he says.

At first guards in Lumpkin would stop Mr. Rosenbluth from shaking his clients’ hands or patting their shoulders. Not in here, they’d scold him; it’s not allowed. Mr. Rosenbluth, who is Jewish, persisted, politely, in a way that was more rabbinical than righteous. Eventually he wore down the guards one by one, and now he embraces his clients, a human touch denied in prison.

When he loses his cases, as he often does, Mr. Rosenbluth comforts the detainee, walks out of the prison, and drives his Prius the mile back home. “Then I’ll scream at the walls,” he says.

As a one-man act, Mr. Rosenbluth can juggle only a dozen or so individual cases at Stewart at a time, knowing that most will end in deportation. Far from gumming up the system, he admits he may be just helping put a veneer of due process on mass expulsions.

Still, he takes solace in making a difference where he can. “You bang your head against a wall” trying to stop Israel from torturing Palestinian suspects, and nothing changes, he says. “Here I make a difference on a daily basis, and I can see it.”

That difference could be amplified as his firm, Polanco Law, is looking to add two more lawyers in Lumpkin this year. Mr. Rosenbluth has begun scoping out empty storefronts for an office. A nearby house has also opened its doors to provide free accommodations for family members visiting detainees.

Having a shingle in town would expand Mr. Rosenbluth’s practice – and perhaps send a message that detainees have a shot at success.

‘This is the best’ 

Mr. Rosenbluth is making coffee when he gets the call. Abdallh Khadra, a Syrian imam whose political asylum was granted a week ago, is getting out after five months inside. The lawyer jumps in his car and heads to Stewart, a broad smile splitting his beard. He always makes sure to be at the prison gate when his clients are released. “It never gets old,” he says. “This is the best.”

On the drive his phone rings again, and this time it’s Mr. Khadra himself. “We’re coming to get you now,” Mr. Rosenbluth tells him. He’s brought Mr. Khadra’s driver’s license and credit card so that he can drive himself back to Cary, North Carolina.

But the head of Mr. Khadra’s mosque calls Mr. Rosenbluth, insisting that he take a bus to Atlanta so that he can be picked up from there. Mr. Rosenbluth shrugs. “I will do what my client wants,” he says after he hangs up.

Most men discharged from Stewart don’t get choices. Those without family or friends waiting outside are shunted into a white van and dumped at a bus station in Columbus, usually at night after the last bus to Atlanta has already left. Local volunteers provide backpacks and blankets and a bed for the night.

Mr. Khadra is more fortunate: The sun is still high when the prison’s side gates grind open and he walks out wearing a gray tunic and black pants, carrying two plastic bags. Mr. Rosenbluth is waiting by a picnic table.

He strides forward to greet his client. The two men, Muslim and Jew, hug and exchange Arabic greetings. “God is merciful. May God bless you.”

Then Mr. Khadra steps forward and falls to his knees on a concrete utility cover. He drops his head and begins to pray.

As he drives home afterward, Mr. Rosenbluth cues up a song on his iPhone that he plays after every release. It’s “Freedom” by Richie Havens.

A long

Way

From my home, yeah.

From my home, yeah.

Yeah.

Sing.

Fr-e-e-dom.

Fr-e-e-dom. 

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

Thanks for all you do, Marty! You are indeed an amazing and inspirational role model for a new generation of “New Due Process Warriors.”

They will be out there shortly to help you take the fight against “21st Century Jim Crow” immigration policies to every corner of the country and to every court in America that touches upon the lives and rights of migrants. This is a system that relies on cruelty, coercion, isolation, dehumanization, false narratives, fear, misinformation, denial of representation, fake assembly line justice, “go along to get along judging,” and keeping the true horrors of “The Gulag” and the “Kangaroo Courts” that support and enable it out of the public eye. That’s why I also appreciate Simon’s outstanding work in exposing what’s really happening in “The Gulag” operating in our own country using taxpayer dollars to finance its fundamentally unconstitutional and dehumanizing mission.

I just noted in a recent post the complicity of certain judges of the Eleventh Circuit Court of Appeals who are turning a blind eye and going out of the way to misinterpret the law to allow places like the Atlanta Immigration Court and the Stewart Detention Court to flourish, continue to arrogantly abuse human rights, and mock Due Process, Equal Protection, and fundamental fairness right under their noses. https://wp.me/p8eeJm-4dF Those Article III judges who “look the other way”  are just as culpable as the corrupt politicos who run this dysfunctional parody of justice inflicted on America’s most vulnerable. History will not forget their roles and derelictions of duty.

As I always told myself, Due Process is fundamentally about saving lives — one at a time. At the same time, every life you save “builds America,” one case, one human being, one precious life at a time. Thanks again, Marty and Simon, for all you are doing!

Due Process Forever!

PWS

04-21-19

THE TRUMP ADMINISTRATION LIES, BUT TRAC STATS DON’T: TRAC Exposes Trump’s False Narratives About Families & “Sanctuary Cities” – No Families Are Not “Overwhelming” The System & Most Of Them Already Have Been Absorbed By So-Called “Sanctuary Jurisdictions!”

==========================================
Transactional Records Access Clearinghouse
==========================================

FOR IMMEDIATE RELEASE

Despite the concern about the number of families arriving at the border seeking asylum, families continue to remain a minor proportion of new cases arriving at the Immigration Courts each month. For example, during March 2019, just 18.7 percent of the new cases that came in involved these families. Despite this, the court’s backlog continues to climb and reached a new historic high of 869,013 cases on its active docket at the end of March.

After being released in border communities, families seldom remain there. Since September 2018, 32 courts in 24 states have received at least 100 new family cases. Over half of these cases are before courts headquartered in sanctuary cities. Among the top ten courts where family cases are located, six are usually classified as sanctuary jurisdictions. These courts include those in New York City, San Francisco, Los Angeles and Chicago.

These results are based upon the latest court records analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. These data were obtained from the Executive Office for Immigration Review (EOIR) under the Freedom of Information Act (FOIA).

Full data on what happens to families after they are arrested at the border, however, are not available. The Justice Department has now stopped providing TRAC with information needed to track the processing of asylum and related applications for relief. Information both on historical as well as new asylum applications are now being withheld during this review.

In addition, the government admits it lacks the ability to reliably follow cases when they are transferred from one agency to another. Without this information, agency officials are unable to effectively manage the situation. This appears to parallel the difficulties the government has had in reuniting children separated from their parents because separate record systems didn’t pass along relevant information.

For the full report, go to:

https://trac.syr.edu/immigration/reports/556/

In addition, a number of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through March 2019. For an index to the full list of TRAC’s immigration tools and their latest update go to:

https://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

https://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563
trac@syr.edu
https://trac.syr.edu

———————————————————————————
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (https://whitman.syr.edu) and the Newhouse School of Public Communications (https://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to https://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.

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

Senator Ron Johnson (R-WI), the DHS “Advisory Committee,” and other Trump Apologists to the contrary, neither arriving families nor the current asylum law are the problems (except that the Administration fails to apply the current asylum law and procedures fairly). No, the problem is the “malicious incompetence” of the Trump kakistocracy in the White House, at DHS, and in the DOJ.

Democrats must take care not to be “stampeded” by Trump’s bogus White Nationalist narrative (even parroted by some members of the “mainstream press”) into changing asylum laws to further screw asylum seekers. Rather they need to stand firm on insisting that the Trump Administration follow existing laws on asylum, protection of unaccompanied minors, and other forms of humanitarian protection.

There isn’t going to be a “grand bargain’ on immigration until the Trump kakistocracy and its enablers are removed from power. And “border security” does not require a reduction or truncation of the rights of migrants and asylum seekers as a “trade-off” for legalization programs.

Actually, clearing intentionally and maliciously overcrowded Immigration Court dockets of cases of individuals whose removal actually hurts the U.S. and figuring out a way of getting more of these folks we need into the legal immigration system right off the bat (instead of forcing them into the “immigration black market”) are essential parts of any border security program.

What real border security does require is a competent focus on making the asylum adjudication system and the Immigration Court system function in accordance with protection laws, Due Process, and fundamental fairness. A fair, timely, and efficient Immigration Court system serves everyone’s needs, including DHS enforcement.

Fair, impartial, and independent judges who are not controlled by politicos with a White Nationalist agenda would be the basic starting point. It also includes a fair application of the law to include gender based persecution and persecution by gangs and other entities exercising quasi-governmental authority in “failed states.” Indeed, if any “clarifications” are made in asylum law it should be to specifically write these interpretations into the refugee definition as was done by a bipartisan group of legislators in the past who were dissatisfied with the administrative failure to include victims of persecution in the form of coercive family planning in the refugee definition.

PWS

04-21-19

INSIDE THE “NEW AMERICAN GULAG” — Jim Crow Lives In Stewart Co., Georgia — Perhaps He Never Left!

https://www.splcenter.org/attention-on-detention/healing-open-wounds-injustice-stewart-county-georgia

Mary Claire Kelly writes for the Southern Poverty Law Center:

On the stretch of highway careening south from Columbus to Lumpkin, patches of Georgia red clay lie like open sores on the road’s shoulder. The sun burns bright orange, through air that is hazy with pollen and smoke from controlled forest fires.

The land here was once valuable. It was coveted. Nearly 200 years ago, white men named this county Stewart, after a revolutionary war militia general. White men massacred the men, women and children of the Creek Confederacy over this land.

Wealthy white men forced black men, women and children to scrape this land and stuff it with cotton. They gouged this land. Farmers, laborers and enslaved Africans dug deep ditches, taking no steps to avoid soil erosion, and those ditches became pits. In one part of Lumpkin, flowing water carved out the enormous pinnacles that mark Providence Canyon State Park. Nicknamed Georgia’s “Little Grand Canyon,” it is a beautiful scar of a violent extractive history.

Today, Stewart is one of the poorest counties in the state of Georgia. Its economic and population peak was in the mid-1800s, when slavery still reigned. Now, nearly half the roads in this majority-black district are still unpaved. Lumpkin’s downtown area, the county seat, has one four-way stop and many boarded up businesses.

The city’s population more than doubles when you include the 2,000 people locked away at the county’s main employer, Stewart Detention Center. The immigration prison is made of concrete and steel, but is sustained by a diversity of barriers.

First, there are the barriers you see: The trees hide Stewart from the roads, the two layers of curly-cue barbed wire fences insulate the facility, the formidable red gates stand tall, and the freshly cut grass stretches like a moat around the building.

Then, there are the barriers you experience: You leave your phone and any other connection to the outside world in your car, wait at two red gates outside the building entrance for an unseen force to open them, endlessly wait for one of three designated rooms to open for visitation, remove your jacket and shoes to endure the TSA-style security process to enter, and then you wait in the empty visitation room for a man with sleepless, red eyes to appear behind the thick, protective, plastic partition.

Next, there are the barriers you hear: the screech of your chair whenever you shift positions, the distracting human resources video blaring in the hallway outside of the visitation room, the echoes reverberating in the small concrete space that prevent you and the immigrant who sits behind the plastic barrier from being able to hear each other, and the static crackling across the telephone line that you must use to listen to the man who is sitting only feet away.

Then, there are the barriers that comprise the very reason this man sits in front of you: the violent political divisions in his home country, the obstacles to making a living wage, the language barrier, the gap in education needed to navigate the labyrinth of immigration bureaucracy.

And, last but not least, there is the barrier that is the entire reason for this place and this situation: the American border.

The logo of CoreCivic Inc. – the private, for-profit prison company that the government pays to run this facility – is a deformed American flag that is missing its stars, leaving only stripes that resemble the bars of a cage.

Through the entrance to the courtroom, President Donald Trump smiles in the lobby from his portrait above the list of that day’s hearings. In those hearings, detainees who have come from all over the world will sit on hard, wooden pews facing the U.S. Department of Justice seal.

Here, an attorney for the government will argue why each of these men and trans women should stay at this immigrant prison, or be sent back to the country they fled. In many cases, these immigrants might not have an attorney to represent them, because they do not have the constitutional right to counsel. Sometimes, family and friends can sit in on the hearing to show support for their loved one’s case.

Here, an immigration judge in black robes will methodically determine whether each of these people will remain caged at Stewart, be returned to the country they escaped, or be allowed to leave the prison. The verdict is delivered either by the judge with an authoritative tone, or the courtroom interpreter with a clinical lilt. If a person is allowed to leave, they will most likely have to continue waiting in this immigrant prison until someone on the outside can pay their bond, which is typically thousands of dollars. If they do leave, it will likely be late in the evening – too late to find transportation out of Stewart County.

The men and trans women who churn through Stewart’s machinery are called by their A-number, not their name. They are reduced to numbers. CoreCivic receives approximately $62 of taxpayer money for each body that fills a bed in its institution each day, according to Shadow Prisons, an SPLC report about the immigration system that is rife with civil rights violations, poor conditions, and little commitment to the safety of detainees. CoreCivic pays the people who are detained here as little as $1 a day for their “voluntary” labor.

To gain their freedom, these detained individuals must prove, through financial statements, that they will not be an economic burden on the government.

This is the knot of racist bureaucracy that staff of the Southeast Immigrant Freedom Initiative (SIFI)a project of the SPLC that provides pro bono legal counsel to those facing deportation proceedings in the Southeast – patiently work each day to untangle. The U.S. immigration system presses every parent, child, sibling and caregiver it entraps into an anonymous mold — a serial number in scrubs — that can be delivered to immigration prisons in a fleet of white vans.

SIFI staff see past the mold. They look into the eyes of each person they represent. They recognize the details that belong to that individual, and that individual alone: their family on the outside working for their release, the aches and pains that prevent them from sleeping, the professional skills they worked for years to achieve.

For many detained individuals, their bureaucratic purgatory in Stewart has been the end of an Odyssean journey to escape torture, the murders of loved ones, and threats on their lives. Every one of these tragic epics is woven with contagious trauma.

Yet, the men and women of SIFI are strong – even when the battles seem uphill every day. They model for volunteers how to confidently perform quality legal work, while treating each client with respect and compassion.

The small community of immigrants’ rights activists in Lumpkin, which also includes local immigration attorneys and the hospitality ministry El Refugio, often supports one another. They celebrate victories — the release of a client, the grant of a low bond amount — and quietly mourn defeats.

Stewart Detention Center is a painful symptom of violent injustice. It festers in a South Georgia landscape that bears deep, historic wounds.

Here, the men and women of SIFI are trying to heal the system.

Mary Claire Kelly is a Harvard Law School student and a former digital media associate at the SPLC.

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

Grotesque abuses of Constitutional Due Process, fundamental fairness, and human decency, not to mention errors of law, go on daily in the “NAG” aided and abetted by its EOIR enablers. What kind of “court” operates in such a one-sided and coercive atmosphere. Why don‘t those in charge insist on neutral hearing sites rather than those controlled by one of the parties in interest?

Bill Barr just went to great pains to insure that even those who pass “credible fear” and who can prove financial responsibility won’t in the future be released from detention (unless, of course, ICE runs out of detention space, which is already happening).

In fact, they won’t even get a chance to make the case for relief to an Immigration Judge. That’s the kind of mindless “Jim Crow” use of the law to promote cruelty and unfairness that corporate “stuffed shirts” like Barr, more concerned with covering for his corrupt boss than upholding the Constitution, can mete out from his protected perch at the DOJ. But, perhaps the folks at SIFI will be able to stuff Barr’s disregard for the Fifth Amendment back in his face in the “real” Federal Courts.

In any event, history won’t forget the Barrs of the world, any more than they have forgotten the Wallaces and others who were on its “wrong side.”

If nothing else, the performance of Bill Barr over the last several days shows why a true “court system” can’t possibly run under his auspices.

PWS

04-19-19

 

ERIC LEVITZ @ NY MAG: Trump Is A Scofflaw Fraud, Particularly On Immigration — “It is abundantly clear, then, that the Trump administration’s fanatical opposition to illegal immigration is not rooted in a commitment to upholding U.S. law but rather in some other concern it does not wish to speak in public.”

https://apple.news/A1erR6RRPRnyc6GVYdS2PAw

Eric Levitz writes in NY Magazine:

PRESIDENT TRUMP

Trump Wants America to Stop Enforcing Its Immigration Laws

Donald Trump has nothing against “lawful immigrants” — in fact, he believes they “enrich our society and contribute to our nation.” And the president certainly has no investment in maintaining the United States as a majority-white nation; he is, after all, “the least racist person you have ever met.

The left might try to defame this White House by insisting its hard-line immigration policies are motivated by nativism or even white-nationalist sympathies. But the administration has made its true motives perfectly clear: It has not adopted a “zero tolerance” policy toward undocumented immigrants out of animus for foreign people but simply out of reverence for American law.

“In a Trump administration, all immigration laws will be enforced,” Trump promised a crowd in Phoenix two months before his election. “Anyone who has entered the United States illegally is subject to deportation — that is what it means to have laws and to have a country.”

Trump has repeatedly invoked this absolutist commitment to the law when seeking to justify unpopular immigration policies. The president never offered an affirmative argument for canceling the Deferred Action for Childhood Arrivals (DACA) program, which provided temporary work permits to 700,000 undocumented immigrants who were brought to this country as children. To the contrary, almost immediately after terminating DACA, the president claimed he supported protections for Dreamers in principle and implored Congress to write such protections into legislation. He didn’t want to hurt Dreamers — or use them as bargaining chips in negotiations with Democrats — he just felt the Executive branch did not have the authority to make immigration policy unilaterally. Sure, past Republican presidents (and the federal courts) might have considered deferred action to be within the Executive branch’s purview. But Trump was a stickler about the Constitution’s separation of powers. We are a nation of laws, not men. On such grounds, the president would later justify making America into the kind of nation that punishes migrant mothers by separating them from their children.

Of course, the white-collar-criminal-in-chief’s professed devotion to law and order was always a transparent fraud (this is a man who has publicly insisted that the attorney general’s job is to subordinate the law to the president’s personal interests). But even by this administration’s standards, its latest efforts to crack down on “illegal immigration” are gobsmacking in their hypocrisy.

Last week, the White House purged many of its own appointees from the Department of Homeland Security, suggesting that the president was looking to go in a “tougher” direction. Subsequent reporting has clarified that tougher was a euphemism for “lawless.”

Under U.S. law, any foreign national who sets foot on our nation’s soil has a legal right to seek asylum from persecution or violence in that person’s home country — if he or she can pass an initial screening conducted by asylum officials. And Congress designed such screenings with an eye toward minimizing the number of genuinely endangered people whom America sends back into harm’s way (rather than minimizing the number of economic migrants whom our asylum courts are forced to process). As a result, about 90 percent of those who claim asylum make it past the initial screening.

As violence and instability in Central America have sent hundreds of thousands of migrant families to our border, this law has created logistical problems for the Trump administration. Litigating asylum claims can take months, even years. And the United States does not have the resources to detain every asylum seeker who makes it past the initial test. Thus the White House finds itself in the position of releasing asylum seekers into the United States, likely allowing some number to slip into the country and thereby become undocumented immigrants.

For whatever reason, this administration cares more about curbing such immigration (even though undocumented immigration is associated with reductions in crime, and the U.S. has an acute need for more “low skill” labor) than it does about enforcing all of America’s immigration laws. As the New York Times explains:

In a separate conversation, President Trump implored then–DHS Secretary Kirstjen Nielsen to ban migrants from seeking asylum.

It is abundantly clear, then, that the Trump administration’s fanatical opposition to illegal immigration is not rooted in a commitment to upholding U.S. law but rather in some other concern it does not wish to speak in public.

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

Duh!

Like policies driven by White Nationalism and racism.  Or, maybe “malicious incompetence.” That’s why it’s important for Dems not to be hoodwinked into abandoning or wrongly watering down (under the guise of a bogus “compromise”) the laws that offer refugees and migrants at least some legal protections in response to Trump’s self-created crisis that doesn’t threaten U.S. security but does threaten the lives and rights of refugees and other migrants.

Indeed, the best short-term solution to the Southern Border would be to work in a competent, cooperative, and good faith manner to fairly administer the asylum and other protection laws that we currently have on the books.

But, a fair and efficient administration of the laws already on the books undoubtedly would result in more refugees from Central America (and elsewhere) being granted asylum or some other form of protection. And, since that could be done by adjudication and judicial officials, the Border Patrol could go back to protecting the borders from real threats.

But, that’s the result that Trump and his White Nationalist cronies don’t want. That’s why they are working so hard to make the mess worse while shifting blame to the victims. Pretty much the definition of official bullying and cowardice.

PWS

04-19-19

What The DAG SHOULD Have Said To New U.S. Immigration Judges (But, Of Course Didn’t) . . .

WELCOME: DUE PROCESS IS YOUR ONLY MISSION

Congratulations on your appointment as U.S. Immigration Judges. It’s a difficult and important judicial position under the best of circumstances. Given the many controversies surrounding immigration today your job is even more challenging.

You face an overwhelming backlog resulting from factors largely beyond your control. Rather than being consumed or demoralized by that backlog, your job is to guarantee fairness and due process in each individual case coming before you. This requires you to act independently and resist pressures, from any quarter, to “cut corners” or otherwise compromise your constitutional duty to act impartially, fairly, and professionally toward each individual appearing before you.

While you occupy an unusual position as quasi-judicial officers who are also employed by Department of Justice, the Department regulations charge you with exercising your “independent judgment and discretion and . . . [taking] any action consistent with [your] authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.”

Indeed, the United States Supreme Court in the landmark case U.S. ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) stated with respect to your similarly situated judicial colleagues on the Board of Immigration Appeals that each administrative judge serving under these regulations “must exercise his authority according to his own understanding and conscience. This applies with equal force to the Board and the Attorney General. In short, as long as the regulations remain operative, the Attorney General denies himself the right to sidestep the Board or dictate its decision in any manner.”

Consequently, although as a cabinet officer the Attorney General might sometimes take certain positions or advocate certain policies, you must consider only the facts, the statutes, the regulations, and any precedent decisions directly relevant to your particular case in reaching your decisions. And, you must always treat the Department of Homeland Security as a separate party, with the same respect and consideration that you will give to individuals coming before you and their attorneys. That you are all employees of the same Government should not entitle DHS to special or preferable treatment or deference not afforded to other parties coming before your courts.

The motto of the Department of Justice, basically refers to one “who prosecutes in the name of justice.” Thus, our Department stands alone in incorporating a moral principle — the requirement of doing justice — into its mission. As that great American Dr. Martin Luther King, Jr., once said “injustice anywhere is a threat to justice everywhere.”

Some of the most vulnerable individuals entitled to due process under our Constitution will come before you in your courts. Your awesome and solemn responsibility is to insure that they receive due process and fairness — in other words justice — no matter how difficult their individual circumstances might be or any handicaps under which you might be operating.

Many of those arriving in the United States today are applying for asylum under our laws. Those fleeing persecution on account of race, religion, nationality, membership in a particular social group, or political opinion are eligible for protection. In INS v.Cardoza-Fonseca, 480 U.S 421 (1987) our Supreme Court instructed us to apply the asylum standard in a generous manner. Others who face torture at the hands of, or with the “willful blindness” of, their governments, are entitled to protection without having to establish that the torture results from one of the foregoing “protected grounds.” An important part of your job will be insure that those who qualify for protection under our laws are given a full and fair chance to prepare their cases, to be represented by counsel of their choice, receive fair and reasoned decisions, and are not unfairly returned to harm in the countries they fled.

For my part, I pledge that during the time I remain with the Department of Justice I will do everything in my power to protect your quasi-judicial independence from improper influence, to allow you to manage your own dockets and develop “best practices” without bureaucratic interference,  and to secure for you the resources you need to do your critically important jobs. I trust that my successor will do likewise.

The vision of our Immigration Courts is “through teamwork and innovation become the world’s best administrative tribunals guaranteeing fairness and due process for all.” Your challenge is to do everything within your power to make that vision a reality each day you are on the bench.

Congratulations again on your selection and on choosing to serve our country in these important judicial positions at this critical juncture in our history. I thank you in advance for your future service and commitment to insuring equal justice for all. Good luck, do great things, and make due process for all your daily goal.

 

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

Someday, we will once again have an Attorney General and a DAG who truly respect Constitutional Due Process, don’t fear independent judicial decision-making, and have the courage and backbone to “just say no” to White Nationalist restricitionist agendas that conflict with our Constitution, our statutes, our international obligations, common human decency, and what were once almost universally considered “true American values.”

Until then, it will be up to the “New Due Process Army” and their allies to keep Due Process and fairness for all of us alive during what will go down as one of the darkest and most evil periods in modern American history.

PWS

08-18-19

DAG ROSENSTEIN INADVERTENTLY MAKES COMPELLING ARGUMENT FOR INDEPENDENT ARTICLE I U.S. IMMIGRATION COURT IN SPEECH TO NEW JUDGES — Places Emphasis On Executive, Fealty To Attorney General, Not Independence. Impartiality, & Insuring Due Process! — REAL “Courts” Don’t Answer to Prosecutors!

https://links.govdelivery.com/track?type=click&enid=ZWFzPTEmbXNpZD0mYXVpZD0mbWFpbGluZ2lkPTIwMTkwMzE1LjMyNjAxNDEmbWVzc2FnZWlkPU1EQi1QUkQtQlVMLTIwMTkwMzE1LjMyNjAxNDEmZGF0YWJhc2VpZD0xMDAxJnNlcmlhbD0xODQ4OTEzNiZlbWFpbGlkPWRrb3dhbHNraUBkYXZpZC13YXJlLmNvbSZ1c2VyaWQ9ZGtvd2Fsc2tpQGRhdmlkLXdhcmUuY29tJnRhcmdldGlkPSZmbD0mZXh0cmE9TXVsdGl2YXJpYXRlSWQ9JiYm&&&101&&&https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-rosenstein-delivers-opening-remarks-investiture-31-newly

Deputy Attorney General Rod J. Rosenstein Delivers Opening Remarks at Investiture of 31 Newly Appointed Immigration Judges
Washington, DC

~

Friday, March 15, 2019

Thank you, James, for that kind introduction. I appreciate your devoted service to the Department of Justice.

I also want to thank Deputy Chief Judges Santoro and Cheng, and Assistant Chief Judges Doolittle, Owen, Mart, and Weiss.

I am grateful to Marcia Lee-Sullivan and Karen Manna for helping to plan this event.

Above all, I want to congratulate our 31 new immigration judges for joining the Executive Office for Immigration Review, and welcome the family members and friends who are with us today.

I took my first oath as a Department of Justice employee in 1990. I hope it is as meaningful to you as it is to me. They have sworn me in several more times over the past three decades. But they never swear you out.

The oath obligates you to support and defend the Constitution. Our nation was not united by race, ethnicity, religion, or even national origin. The founders’ goal of bringing peoples of the world together in a single nation is reflected in the motto adopted at the founding of our Republic: e pluribus unum: from the many, one. Our one nation is unified by our shared commitment to the principles of the United States Constitution.  The preamble sets forth, among its primary goals, to “establish Justice.” Justice – or the fair application of the rule of law – is the essence of America.

The right to live and work in America is a tremendous privilege. It is a valuable privilege. It is a privilege that has meaning only if we exercise our right and duty to protect it by setting rules for people who seek to acquire the privilege.

It is right and proper for us to insist that people who desire to join our nation – people who want themselves and their children to join the privileged group who define ourselves as “we, the people” – start by following the rules governing admission and citizenship.

The duties imposed by your oath of office include faithfully enforcing those rules.

America’s immigration laws are generous and welcoming, but they are intended to protect the rights and advance the interests of current and future citizens.

More than a century ago, Theodore Roosevelt remarked that “[t]he average citizen must be a good citizen if our republics are to succeed. The stream will not permanently rise higher than the main source; and the main source of national power and national greatness is found in the average citizenship of the nation.” Roosevelt did not limit his remarks to birthright citizens. He said, “We must in every way possible encourage the immigrant to rise …. We must in turn insist upon his showing the same standard of fealty to this country and to join with us in raising the level of our common American citizenship.”

Obeying the law when seeking entry to the United States is an essential component of “fealty to this country.”

Estimates suggest that there are more than 44 million people in our country who were not American citizens at birth. That is almost 14 percent of our population, the largest share in more than a century.  America’s foreign-born population exceeds the total population of California, our most populous state, and it is larger than the entire population of Argentina.

Those numbers continue to grow. Every year, we generously extend lawful permanent resident status to more than one million people, and we allot hundreds of thousands of student visas and temporary work visas.

It is no surprise that so many people want to join us. According to the World Bank, nearly half of the world lives on less than $5.50 per day. According to a recent Gallup poll, 150 million people around the world want to immigrate to the United States. We cannot take them all.

For our system to be fair, it must be carried out faithfully and equitably. It must be fair to all who desire to come here — whether they live south of our border or an ocean away.

Immigration judges appointed by the Attorney General and supervised by the Executive Office for Immigration Review are not only judges. First, you are not only judges because you are also employees of the United States Department of Justice. It is a great honor to serve in this Department. In the courtyard just outside the entrance to this Great Hall, high up on the interior wall of the Main Justice building, there is a depiction of the scales of justice and an inscription that reads, “Privilegium Obligatio.” It means that when you accept a privilege, you incur an obligation. In this Department, our duty is in our name. We are the only cabinet agency with a name that articulates a moral value.

Justice is not measured by statistics. Our employees learn from day one that their duty is to gather the facts, seek the truth, apply the law, and respect the policies and principles of the Department of Justice.

The second reason that you are not only judges is that in addition to your adjudicative function – finding facts and applying laws – you are a member of the executive branch. You follow lawful instructions from the Attorney General, and you share a duty to enforce the law.

You take office at a critical time. The number of immigration cases filed each year is rapidly increasing. In February, the Department of Homeland Security apprehended 66,000 aliens who unlawfully entered our country between ports of entry along the southwest border. On average, our colleagues at the Department of Homeland Security encounter about 3,000 aliens every day along the southern border.

Most of them cross the border unlawfully, between points of entry. They chose not to follow the law. Because they do not follow the law, many of them expose themselves and their children to exploitation and abuse. Many pay criminal smugglers because they know that they might not be allowed to enter lawfully. Nonetheless, our legal system protects them.

The massive influx of aliens who arrive in America illegally and invoke due process rights under our law creates a staggering volume of immigration cases that require resolution.

The primary factor driving the increasing backlog is the significant increase in asylum applications. Asylum applications have more than tripled in less than five years.

Our asylum system was established in the aftermath of World War II. America seemed to have limitless space at that time, and the goal was to protect minority groups from persecution by foreign states, the kind of persecution that the world witnessed during World War II and which was prevalent at that time in the purges conducted by our erstwhile ally, the Soviet Union.

The law authorizes asylum only for victims who suffered persecution or have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or because of their political opinion.

Other reasons for seeking to immigrate may be rational and even laudable. We certainly understand why foreigners wish to come to America in search of better opportunities for themselves and their children. America is a great nation that does not need walls to keep its citizens from leaving, like the Soviet Union. We build walls only to protect ourselves and enforce our rules.

The duty of our immigration judges is to honestly find the facts and faithfully apply the laws, so that people obtain asylum only if they qualify for it under the statute.

We are taking steps to address the massive influx of cases. We are hiring more judges; we are holding more hearings; and we are completing more cases, more quickly.

Since President Trump’s inauguration, the Department of Justice has hired more immigration judges than in the previous seven years combined. We now employ the largest number of immigration judges in history. There are 48 percent more immigration judges than three years ago, and 71 percent more than five years ago.

And we are finding innovative ways to become more efficient. For example, the Department has had great success using video teleconference technology, which enables judges to share the case burden with one another across the country.

We will look for other ways to become more efficient and more effective. But ultimately we are depending upon you, both to perform your duties expeditiously, and to let us know when you identify opportunities for improvement.

One of my favorite management parables is about a child who watches her mother prepare a roast beef.  The mother cuts the ends off the roast before she puts it in the oven.  The child asks why. The mother says that she learned it from her mother. So the child asks her grandmother. The grandmother explains, “When your mother was a child, I cut the ends off because my pan was too small to fit the whole roast beef.”

The moral is that the solutions of the past are not necessarily the right solutions today.  Circumstances change.  Sometimes we need to reconsider assumptions and realign our practices to achieve our goals.  The movie “Moneyball,” based on a book by Michael Lewis, summarizes the lesson in three words borrowed from Charles Darwin: “Adapt or die.” Some of the best ideas to enhance efficiency come from relatively new employees who are not accustomed to existing bureaucratic rules. If you think you know a better way to accomplish our mission, please speak up and let us know.

Our challenges are daunting.  But you can be part of the solution.

Whether the immigration backlog continues to grow depends in large part on how immigration judges discharge their duties.

We chose you because of your qualifications, your legal skills, and your personal integrity. We believe that you are ready for this challenge.

Thank you for your willingness to serve, and welcome to the Department of Justice.

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

There were a few good things about Rosenstein’s presentation:

  • As I had predicted would happen under Barr, he improved the tone by ditching the overt appeals to White Nationalism, racist dog whistles, and misogyny present in most of Sessions’s rhetoric:
  • He also dropped the vicious, disingenuous attacks on the private bar that were a staple of Sessions’s anti-immigrant screeds;
  • He at least acknowledges that immigrants are a large permanent part of our society, although downplaying the truth that, contrary to Stephen Miller and other Trump restrictionists, we are, in fact, a “nation of immigrants;”
  • He acknowledges the obligation to be “fair to all who desire to come here — whether they live south of our border or an ocean away;”
  • He at least grudgingly recognizes that all who come here are entitled to certain protections under our legal system regardless of the circumstances of entry (something that the DOJ and the Administration actually have failed to respect in practice);
  • He also recognizes another truth that his Department often chooses to ignore — “Justice is not measured by statistics.” — Indeed, it is not — so why have mindless “quotas” that nobody working in or familiar with the system would have recommended? Why cite largely meaningless statistics about the number of individuals who would like to come here but never will?

But, there was also lots NOT to like:

  • Rosenstein mangles the oath of office; federal employees like Immigration Judges swear to uphold the Constitution against all enemies foreign and domestic — they DON’T swear to uphold or carry out the policies of the Attorney General (many of which have actually been found in violation of the law);
  • He creates a bogus “test” of “legal entry” as a demonstration of “fealty to our country;” there is no such equivalency or “second class citizenship.” — Although our system understandably often favors those who enter legally, there are a number of provisions that allow individuals who did not do so to eventually be granted citizenship, including those who are granted asylum; I am aware of no information that shows that manner of entry into the U.S. has any effect on one’s “fealty” or performance as a citizen; indeed, as a “native born U.S. citizen,” Rosenstein, like many of us, did nothing whatsoever personally to show his “fealty” or “earn” his citizenship — he was just lucky like we were;
  • Rosenstein keeps referring to “enforcement;” but Immigration Judges are NOT “law enforcement officers;” they are supposed to be fair and impartial quasi-judicial adjudicators; “enforcement” is the job of DHS and other parts of the DOJ (a glaring conflict of interest);
  • DHS officials are not the Immigration Judges’ “colleagues” to any greater extent than are lawyers in private practice or the individuals coming before the Immigration Courts; DHS is a “party” before the court and should be treated as such;
  • Rosenstein mis-states the history of our refugee laws. While the 1951 Convention was a response to World War II, the U.S. never became a party. We did sign the 1967 Protocol which was intended to update and expand the Convention and refugee law and move it beyond the immediate post-WWII aftermath. Our first codification of refugee and asylum law, the Refugee Act of 1980, was specifically intended to eliminate the types of ideological and geographical biases that had previously been a facet of our law; Rosenstein wrongfully implies that judges should interpret  refugee law with a focus on a bygone era rather than considering refugee law, in the dynamic, protection-oriented manner it was intended, in the contexts of today’s world, where persecution based on gender is one of the major refugee producing factors;
  • Rosenstein cites televideo as a helpful “innovation;” televideo is hardly new; but the often inept way in which it has been implemented and used by EOIR means that it often has actually fueled, rather than solved, “Aimless Docket Reshuffling” as shown in this very recent report from Beth Fertig at WNYC: https://immigrationcourtside.com/2019/03/15/beth-fertig-the-gothamist-mismanaged-immigration-courts-failed-technology-results-in-cancelled-hearings-more-aimless-docket-reshuffling-that-needlessly-impedes-due-process-ad/ Most of us who have actually worked in the system would say that while better televideo and a corps of “senior” and “reserve” judges might prove useful in many circumstances, they are least suitable and helpful for contested merits asylum cases;
  • Rosenstein neglects to mention the glaring failure of DOJ/EOIR to deliver on an even more important piece of technology for both the judges and the parties: e-filing which has been under development for nearly two decades without producing a functional product — a stunning piece of administrative incompetence by any standard and one that has helped contribute to the “Aimless Docket Reshuffling” that plagues this dysfunctional system;
  • Rosenstein use of the term “generous” to describe legal immigration policy under Trump is outrageous; in a time of a growing worldwide refugee crisis, this Administration has cruelly and irrationally reduced refugee admissions to the lowest rate since the enactment of the Refugee Act of 1980, while discouraging and placing bureaucratic roadblocks to discourage other forms of legal immigration, and intentionally misconstruing and perverting the law to make it more difficult for abused women from Central America to qualify;
  • Rosenstein fails to acknowledge that “forced migrants” are just that; they often enter illegally because they have little other choice, particularly when the Administration intentionally “slow walks” the applications of those who apply at legal ports of entry, forces those who have shown “credible fear” to remain in dangerous conditions in Mexico, and encourages smugglers to “turn in” individuals between ports of entry to avoid the Trump Administration’s short-sighted and arguably illegal policies;
  • Walls are not a symbol of strength as posited by Rosenstein; they are symbols of fear and loathing; in the USSR’s case it was directed at their own citizens; for the Trump Administration, walls are symbols of fear of Mexico, Mexicans, other Latin Americans, immigrants generally, and inferentially the real target — Hispanic citizens and all people of color in the U.S.;
  • Rosenstein’s final piece of jaw-dropping hypocrisy is to solicit solutions from the “new judges” to problems thrust on them by his Department’s malicious incompetence. Gimme a break, Rod! This Administration, like the last several, has made a point of ignoring any solutions generated from those who actually hear the cases in favor of those imposed to meet political goals that often undermine due process and judicial efficiency. Just ask the NAIJ how “receptive” the Trump DOJ has been to constructive suggestions. Ask almost any Immigration Judge about the idiotic and demeaning “case quotas” imposed on them over their objections. Moreover, this Administration has been “outed” in FOIA requests and court cases for  ignoring well-supported fact-biased recommendations of career civil servants with expertise in various fields in favor of a preconceived racist, White Nationalist, restrictionist political agenda. Save your breath and ideas folks, for a future time after we get some much-needed “regime change” and the return of rational, unbiased, solution-oriented administration of justice instead of ideologues and their apologists like Rosenstein.

Rosenstein is on his way out the door at the DOJ.  He’ll leave behind a mixed legacy. He’ll deserve great credit for protecting the Mueller investigation from Trump’s various attempts to interfere and compromise it. On the other hand, he drafted the infamous “pretext memo” which was part of the ultimately unsuccessful attempt to cover up Trump’s real real reason for firing FBI Director Jim Comey.

His failure to stand up for judicial independence, fairness, and due process for vulnerable individuals coming before our U.S. Immigration Courts and his continuing defense of the Administration’s indefensible and harmful White Nationalist immigration agenda will go down as one of his lesser moments.

America needs an independent Article I U.S. Immigration Court where judges act fairly and impartially and owe allegiance to the U.S. Constitution, not the Attorney General or any other political official.

PWS

03-18-19

 

 

RADLEY BALKO @ WASHPOST EXPOSES THE RESTRICTIONISTS’ RACIALLY-DRIVEN BOGUS NARRATIVES: The thing to remember here is the only consistent principle behind immigration restrictionism is opposition to immigrants.”

https://www.washingtonpost.com/opinions/2019/03/13/immigration-opponents-any-old-argument-will-do/

Balko writes:

For immigration opponents, any old argument will do

Opinion writer

March 13 at 2:03 PM

David Frum’s cover essay in the latest issue of the Atlantic calling for immigration restrictions is generating some well-deserved scorn. Even his central premise — that if liberals don’t enforce immigration laws, the nation will turn to fascists — is bedeviled by reality. President Trump, Fox News and the Republican Party tried with all their might to demagogue immigration before the midterm elections. The GOP got clobbered. Democrats did especially well in elections in New Mexico, Texas, Arizona and California, the states that border Mexico. In fact, all nine members of Congress who represent the districts along the Mexico border oppose funding for Trump’s border wall.

According to Gallup, 67 percent of Americans think immigration levels should either stay the same or increase, and 75 percent think immigration is a “good thing,” an all-time high. Over the past two years, the percentage who want to restrict immigration from current levels has averaged 30 percent, the lowest figure since Gallup began asking this question in 1965. An NBC News-Wall Street Journal poll found that 61 percent of Americans think immigration helps the country more than it hurts, also an all-time high, and an incredible 49-point swing from 2005. There’s virtually no evidence that support for more immigration is a political liability, other than in Frum’s mind. At worst, an immigration supporter will lose the 30 percent of voters he or she would have lost anyway.

Frum’s essay also includes some bizarre, anti-historical observations. This one might be the strangest: “America was built on the revolutionary idea, never fully realized, that those who labor might also govern—that every worker should be a voter.” The United States was, of course, actually founded on the still-revolutionary — but not nearly as revolutionary — idea that every white, male landowner should be a voter. We weren’t even ready to admit that the people doing the most work at the time were full human beings. Not only was slavery thriving at the American founding, not only was it acknowledged and enshrined in the Constitution, but the effort to preserve the institution also formalized the bond between race, second-class citizenship and servitude. Even the Declaration of Independence, the founding document, was altered from Thomas Jefferson’s first draft to omit the word inherent as a descriptor of our rights, a nod to the fact that even the Enlightenment thinkers weren’t quite ready to recognize the existence of inalienable rights outside their immediate social status, much less to slaves.

In another fit of historical ineptitude, Frum pines for the years 1915 to 1975, a period of immigration restrictionism, which he bizarrely describes as the “years in which the United States became a more cohesive nation.” (Frum also conveniently leaves out how those policies were grounded in racism.) The economist Noah Smith obliterated this argument in a pretty devastating Twitter thread. This was a period of Jim Crow, lynching, red scares, the Depression, race riots, labor rights, mass incarceration, racial assassinations, internment camps and domestic terrorism. Under no circumstances would you describe it as an era of broad social cohesion.

If we wanted to look at the single metric most indicative of social cohesion, we’d probably look at murder rates. The U.S. homicide rate began to increase in the mid-1960s, then generally rose until it peaked with the crack epidemic in the early 1990s. Immigration began to increase in the early 1970s, but really began to soar in the 1990s. From about 1994 to about 2014, undocumented immigration soared while violent crime spiraled.

In fact, from about the late 1990s on, nearly every social indicator in the United States began to move in an encouraging direction — dropout rates, teen pregnancy rates, divorce rates, juvenile crime, rape, property crimes, you name it. Meanwhile, immigration boomed. I don’t think immigration caused all of those good things to happen. But Frum’s argument, that immigration unravels social cohesion, is simply contradicted by the data.

Frum goes on to list of a number of consequences of modern immigration, most of which Frum thinks bode ill for the sort of society to which Frum believes we should be aspiring. But most of the negative consequences Frum lists aren’t the result of immigrants themselves, but of people who share Frum’s view that we have too many immigrants. The line I quoted above, for example, is part of a broader argument Frum makes — because undocumented immigrants operated outside of the law, they aren’t afforded the same legal protection, social status and political representation as citizens and legal residents. But undocumented people live outside the law largely because (a) there is demand here for low-skilled workers, (b) it is virtually impossible for low-skilled workers to come here legally and (c) people who share Frum’s policy preferences have made it politically difficult to grant those who do come any sort of legal protection or political representation.

Frum also cherry-picks his data. He argues, for example, that employers in immigrant-heavy industries are shirking their safety obligations because immigrants lack the political power to demand or enforce regulations. He writes:

Forestry, fishing, and farming are three of the most dangerous industries in the United States. They are 46 percent reliant on immigrant laborers, half of them undocumented. (Documented and undocumented immigrants together make up only 17 percent of the U.S. workforce as a whole.) Building and grounds maintenance is surprisingly dangerous work: 326 people died in 2017. Some 35 percent of grounds workers are immigrants. About 25 percent of construction workers are immigrants, but immigrants supply almost half the workers in the most dangerous areas, notably roofing and drywalling. When so many workers in a job category toil outside the law, the law won’t offer much protection.

Note that Frum moves freely between percentages and raw numbers. Building and grounds maintenance may be “surprisingly dangerous work,” but without some other figures for context, 326 deaths is a meaningless statistic. How does that compare to other professions? According to the Bureau of Labor Statistics, the most dangerous class of occupations falls under the heading “transportation and moving materials.” This group of jobs accounted for nearly a quarter of worker deaths in 2017 — over four times as many workers died in that field as in maintenance. Within that field, the most dangerous sub-field is called “heavy tractor and trailer truck drivers.” And according to a 2012 American Community survey, immigrants make up less than 16 percent of truck drivers. If we look at rates, Frum’s argument also falls flat. The highest fatality rate is comparatively immigrant-spare transportation, at 15.9 deaths per 100,000 workers. Immigration heavy maintenance comes in at 6.6 deaths per 100,000.

There is some evidence that immigrant representation in even these fields is growing, as native-born Americans move out of blue-collar jobs and into more lucrative occupations. But Frum’s policy prescriptions will only exacerbate the very problems that allegedly worry him. Remember, Frum also suggests curbing legal immigration. Contrary to the claims of restrictionists, people don’t come to the United States to get free welfare and health care. Undocumented immigrants contribute more to the economy than they take out, and are less reliant on social welfare than native-born Americans. People come to the United States — legally and illegally — when there is demand for their labor. When the jobs dry up, immigrants stop coming. If demand persists, and the number of legal avenues for immigration continue to dwindle, the immigrants won’t stop coming, they will just increasingly stop coming legally. That means more — not fewer — people in the shadows, unrepresented, unprotected and un-franchised.

But I think my favorite bit of Frum-ian logic comes when discussing the opioid epidemic:

Without the immigrant workers less prone to abuse drugs than the native-born, American elites might have noticed the opioid epidemic before it killed more Americans than died in the Vietnam, Korean, and Iraq Wars and the 9/11 attacks combined.

This is nonsense, on a number of levels. First, there’s little evidence that American elites “missed” the opioid epidemic. The Centers for Disease Control and Prevention has been dutifully publishing overdose statistics each year, as it always has. I’ve talked to several medical examiners in recent years who believe the epidemic may even be overstated. Overdose isn’t always easy to diagnose, and because there’s a nationwide shortage of medical examiners, cause of death isn’t always the product of careful medical analysis so much as a rough guess by an elected coroner with little or no medical training. This isn’t to say that there’s nothing to worry about, but ask any pain patient who is struggling to find treatment — the opioid crisis has certainly not gone unnoticed.

More to the point, Frum’s argument here is a bit of rhetorical jujitsu. The nativist line has long been that immigrants — particularly those who are unskilled and undocumented — are diseased, crime-ridden and drug-addicted. Faced with evidence that immigrants are lesslikely to be addicted to opioids, Frum flips an asset into a liability. Now, the fact that immigrants don’t abuse drugs unfairly distracts elite attention from the native-borns who do.

It reminds me of one of my favorite-ever anti-immigration arguments, from longtime nativist Mark Krikorian. Back in 2004, Krikorian lamented over a Boston Globe story about how dedicated, hardworking immigrants were robbing native-born American teenagers a rite of passage — the privilege of slacking off at their first job. He wrote:

One economist said employers “like the fact that immigrants can work more hours and more shifts than teenagers.” A job counselor said “Typically when kids apply for a summer job they might want a week off to go to camp or do something else. I tell them, ‘You can’t do that. You are up against someone who is going to be there every day and you need to deal with that.’” As a result, the percentage of teenagers holding jobs is the lowest it’s been since statistics started being compiled in the 1940s.

Is it healthy for the future of our society to freeze our children out of low-wage, rite-of-passage jobs? When I was younger, I washed dishes in restaurants, packed tomatoes, did lawn work — this kind of thing is essential if we are to preserve a middle-class society that values work, rather than the Old World model that mass immigration is pushing us toward, where only inferiors ever get their hands dirty.

Of course, Krikorian also regularly argues that the same immigrants employers prefer because of their dedication and work ethic are simultaneously a drain on the welfare system.

The thing to remember here is the only consistent principle behind immigration restrictionism is opposition to immigrants. As a nativist, you’re free to argue that immigrants are both lazy and hardworking. They’re both assimilating too quickly and refusing to assimilate. They’re both violent drug pushers who are crowding our prisons, and they’re teetotaling law-abiders whose good citizenship is unfairly diverting attention from overdose deaths and mass incarceration among the native-born. Pick and chose these points as you need them. Any old argument will do.

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

Balko “outs” the kind of racist garbage that dangerous disingenuous dudes like Jeff Sessions, Stephen Miller, Steve Bannon, Kris Kobach, Steve King, and their many apologists and enablers in the GOP have been spewing forth for years. Only now it’s been elevated to national policy, repeated by Trump, Administration dunderheads like Kristjen Nielsen, Sarah Sanders, L. Francis Cissna, E. Scott Lloyd, and even some supposedly brighter career officials at DHS who should know better. A very sad state of affairs, indeed!

The good news: The “high approval rate” for immigrants shows that the bogus White Nationalist narrative that appears to have helped Trump get elected might be failing this time around. On the other hand, Trump’s approval rate remains high among Republicans. That’s pretty disturbing!

PWS

03-15-19

“SHAFTING KIDS” — Reuters’ FOIA “Dig” Exposes How USCIS Wastes Time & Resources Developing New Ways Of Using Bureaucracy To Undermine Public Service & Deny Protection To The Most Vulnerable!

https://www.reuters.com/article/us-usa-immigration-abuse-exclusive/exclusive-for-migrant-youths-claiming-abuse-u-s-protection-can-be-elusive-idUSKCN1QO1DS

Mica Rosenberg reports for Reuters:

NEW YORK (Reuters) – Growing up in eastern Honduras, Jose said his father would get drunk and beat him with a horse whip and the flat side of a machete. He said he watched his father, a coffee farmer whose crops succumbed to plague, hit his mother on the head with a pistol, sending her to the hospital for three days.

At 17, Jose said, he hired a coyote to ferry him to the United States, seeking to escape his home life and violent feuding among his relatives, as well as seek better opportunities for himself and his siblings. He was picked up by border agents, then released pending deportation proceedings.

After struggling to get a good lawyer, Jose applied at 19 for special protection under a program for young immigrants subjected to childhood mistreatment including abuse, neglect or abandonment.

But like a growing number of applicants, his petition hit a series of hurdles, then was denied. Now he is appealing.

“It’s like being stuck not going forward or backwards,” said Jose, now 22 and living in New York. He spoke on condition his last name not be used because he is working without a permit and does not want to jeopardize his appeal. “You can’t advance in life,” he said.

As President Donald Trump vociferously pushes for a physical barrier across the country’s southern border, young people claiming to be eligible for protection under the Special Immigrant Juvenile (SIJ) program increasingly face a less publicized barrier: heightened demands for paperwork.

Data obtained by Reuters under the Freedom of Information Act shows that the U.S. Citizenship and Immigration Services (USCIS) has recently ramped up demands for additional documents through “Requests for Evidence” and “Notices of Intent to Deny,” which can tie up cases for months.

. . . .

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

Read the rest of Mica’s articles, with graphs, at the above link.

Importantly, the restrictionst group CIS’s claim (in the part of the article NOT set forth above) that SIJ status was intended solely for trafficking victims is untrue.  I actually worked on the enactment of the original SIJ provision in IMMACT 90 when I was in private practice. It was intended to be used by various states and localities, the largest number of which were in California, who had significant numbers of foreign-born “wards of the court” (some of them foster children) who otherwise would have been denied work and study opportunities upon becoming adults.

The later amendments to SIJ status were not intended to limit the scope in any way to “trafficked individuals.” The emphasis was on those who had suffered domestic abuse. Here is a link to an excellent report on that legislative history from American University. http://niwaplibrary.wcl.american.edu/wp-content/uploads/Appendix-B-SIJS-Legislative-History.pdf

Indeed, there is scant evidence that SIJ was ever intended to be limited to trafficked juveniles as restrictionists claim, although such juveniles often fit within the remedial scope of SIJ status. First, that’s clearly not what the statute says. Second, Congress has other specific provisions for the protection of trafficking victims and victims of crime under the “T” and “U” nonimmigrant statuses which may also lead to permanent status.

Just another example of how the USCIS and the Trump Administration have improperly incorporated many parts of the false narrative promoted by immigration restrictionists into Government policies and procedures.

PWS

03-09-19

TWO LA TIMES EDITORIALS “SPOT ON” IN CALLING OUT TRUMP’S FAILED BORDER POLICIES, BOGUS EMERGENCY, & ABUSE OF IMMIGRATION ENFORCEMENT AUTHORITY!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=d85e48a2-1a59-4182-854b-dfd9a146177c

TThe numbers are sobering. The federal government reported Tuesday that immigration agents apprehended 76,000 people — most of them families or unaccompanied minors — at the U.S.-Mexico border in February, twice the level of the previous year and the highest for February in 11 years. The increase continues a trend that began in the fall, and offers direct evidence that President Trump’s strategy of maximal enforcement at the border is not reducing the flow of migrants.

And no, the answer is not “a big, beautiful wall.” Most of those apprehended weren’t trying to sneak past border agents; instead, they sought out agents once they reached the border and turned themselves in, hoping to receive permission to stay.

Furthermore, the situation isn’t a national security emergency, as he has declared in an effort to spend more on his border wall than Congress provided. It’s a complex humanitarian crisis that appears to be worsening, and it’s going to take creative analytical minds to address.

For instance, the vast majority of the families flowing north in recent months come from poor regions of Guatemala, where food insecurity and local conflicts over land rights and environmental protections are pushing more people off their farms and into even deeper poverty, according to human rights observers and U.S. Customs and Border Protection. Just months earlier, gang violence in urbanized areas were pushing people north to the United States; increasingly now, it’s economics.

But Trump’s rhetoric may be playing a role too. The more he threatens draconian enforcement and cutbacks in legal immigration, the more people contemplating moving north are pushed to go sooner, before it gets even harder to reach the U.S. Similarly, more migrants are arriving at more treacherous and remote stretches of the border to avoid getting stuck in Tijuana or other border cities where the U.S. government has reduced the number of asylum seekers it will allow in, claiming an inability to process the requests.

The system is overwhelmed. But the solution isn’t to build a wall, incarcerate more people, separate children from their parents or deny people their legal right to seek asylum. The solution is to improve the efficiency and capacity of the system to deal with the changed migrant demographics. A decade ago, about 1 in 100 border crossers was an unaccompanied minor or asylum seeker; now about a third are.

More judges and support staffs are necessary for the immigration court system, as the Trump administration has sought from Congress. Yet the case backlog there has continued to grow — in part because the increase in enforcement actions, in part because the Justice Department ordered the courts to reopen cases that had been closed administratively without deportations, often because the migrant was in the process of obtaining a visa. A faster and fair process would give those deserving asylum the answer they need sooner, cutting back on the years they spend in limbo, while no longer incentivizing those unqualified for asylum to try anyway.

The Migration Policy Institute, a think tank, has suggested one partial fix. Currently, migrants claiming asylum have a near-immediate initial “credible fear” hearing with an asylum officer from U.S. Citizenship and Immigration Services, who determines whether the migrant has a significant potential to make a successful asylum claim. Most migrants pass that low threshold and are then directed to the immigration courts to make the formal case, a more involved process that can take years. Keeping those cases within the citizenship and immigration branch for an administrative hearing instead of sending them to immigration court could lead to faster decisions for the deserving at a lower cost — a single asylum agent is cheaper than a court staff — while preserving legal rights by giving those denied asylum a chance to appeal to the immigration courts. That’s a process worth contemplating.

More fundamentally, the current system hasn’t worked for years, and under Trump’s enforcement strategy it has gotten worse. It’s a big ask, but Congress and the president need to work together to develop a more capable system that manages the many different aspects of immigration in the best interests of the nation while accommodating the rights of the persecuted to seek asylum.

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=1cbd9b3d-f2d0-4249-b602-37223ff3f407

The U.S. government is reportedly compiling dossiers on journalists, lawyers and activists at the border.

ASan Diego television station recently obtained some troubling documents that seem to show that the U.S. government, working with Mexican officials under a program called Operation Secure Line, has created and shared dossiers on journalists, immigrant rights lawyers and activists covering or involved with the so-called caravans of migrants moving from Central America to the U.S.-Mexico border.

Worse yet, the government then detained some of these people for questioning (one photojournalist was held for 13 hours), barred some of them from crossing the border and interfered with their legitimate efforts to do their jobs. NBC 7 also received a copy of a purported government dossier on lawyer Nicole Ramos, refugee program director for a migrant rights group, that included a description of her car, her mother’s name, and details on her work and travel history. That’s not border security, that’s an intelligence operation and, as the American Civil Liberties Union pointed out, “an outrageous violation of the First Amendment.”

The ACLU noted correctly that it is impermissible for the government to use “the pretext of the border to target activists critical of its policies, lawyers providing legal representation, or journalists simply doing their jobs.”

It’s unclear when the intelligence gathering began, or how widespread it is, but the Committee to Protect Journalists reported in October that U.S. border agents, using the broad power the law gives them to question people entering the country, seemingly singled out journalists for in-depth examinations, including searching their phones, laptops and cameras — all without warrants, because they’re generally not required at the border. These are troubling developments deserving of close scrutiny by Congress and, if warranted, the courts.

The Department of Homeland Security is responsible for controlling the flow of people across U.S. borders and has broad and court-recognized authority to search for contraband. But the government should not use that authority as a pretext to try to gain information to which it would not otherwise be entitled. And it certainly doesn’t give it a framework for harassing or maintaining secret files on journalists, lawyers and activists who are covering, representing or working with activists.

Homeland Security defended the targeting by linking the intelligence operation to the agency’s investigation of efforts this winter by some Central American migrants to cross the wall near San Ysidro, Calif. It said also that all the people entered into the database had witnessed border violence. That sounds an awful lot like a criminal investigation, not a border security operation.

The name of the report leaked to NBC 7 was “Migrant Caravan FY-2019: Suspected Organizers, Coordinators, Instigators, and Media.” The only thing suspect here is the government’s actions.

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

Unfortunately, the second editorial on the “enemies list” shows why the first one on solving the Central American forced migration issue in a sensible, legal, and humanitarian manner simply isn’t in the cards without “regime change.”

First, the Trump Administration simply lacks the competence, professionalism, and expertise to solve real problems. The absolutely stunning incompetence of Nielsen and the rest of the politicos who supposedly run immigration and national security policy these days was on full display this week. America’s “real” enemies must have been watching with glee at this public demonstration of lack of competence and concern for any of the actual national security issues facing our nation.

Career civil servants who have the knowledge, expertise, motivation, and ability to solve migration problems have been forced out, buried in make-work “hallwalker jobs” deep in the bowls of the bureaucracy, or simply silenced and ignored. The Administration has also declared war on facts, knowledge, human decency and scorns the humanitarian expertise available in the private and NGO sectors.

Second, there is zip motivation within the Trump Kakistocracy to solve to the problem. As long as neo-Nazi Stephen Miller is in charge of immigration policy, we’ll get nothing but White Nationalist, racist nonsense. Miller and the White Nationalist restrictionists (like Trump & Sessions) have no motivation to solve immigration problems in a practical, humane, legal manner.

No, the White Nationalist agenda is to use lies, intentionally false narratives, racial and ethnic stereotypes, bogus statistics, and outright attacks on our legal system to further an agenda of hate, intolerance, and division in America intended to enfranchise a largely White GOP kakistocracy while disenfranchising everyone else. It plays to a certain unhappy and ill-informed political “base” that has enabled a minority who cares not a whit about the common good to seize control of our country.

While the forces of evil, division, and Constitutional nihilism can be resisted in the courts, the press, and now the House of Representatives, the reign of “malicious incompetence” can only be ended at the ballot box. If it doesn’t happen in 2020, and there is certainly no guarantee that it will, it might well be too late for the future of our republic.

PWS

03-07-19