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Immigration

White House Spokesperson Says Trump Administration Won’t Rule Out Withdrawing From 1967 Treaty Governing Treatment Of Refugees

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Raj Shah briefs reporters on May 14, 2018 (BeltwayBreakfast photo)

WASHINGTON, June 25, 2018 — President Donald Trump has not ruled out attempting to withdraw the United States from the 1967 Protocol Relating to the Status of Refugees or asking Congress to amend the 1980 Refugee Act to make it harder for South or Central Americans fleeing violence and persecution to be granted asylum in the United States, White House Principal Deputy Press Secretary Raj Shah said Monday.

“I’m not ruling that out at some future date,” Shah said when asked if the president’s calls to deny due process to persons entering the country outside of ports of entry meant he was considering withdrawing from the 1967 treaty or amending the Refugee Act, both of which would be necessary for Trump to fulfill his goal of denying due process to persons claiming asylum in the United States outside of ports of entry.

Trump has ratcheted up his anti-immigrant rhetoric over the past week

The president’s anti-immigrant rhetoric has grown more strident in recent days as he has sought to save face after signing an executive order to end his administration’s policy of separating children from their parents when they claim asylum outside a port of entry. He has called American immigration policy “weak” because it entitles persons not present in the country legally to due process.

“We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came,” Trump wrote in a tweet Sunday, days after pouring cold water on the idea of hiring more immigration judges to deal with a 700,000 case backlog.

Shah denied that President Trump was calling for the denial of due process to those claiming asylum or for any change in United States law or policy that would contravene either the 1967 Protocol, which the Senate ratified 59-0, or the 1980 act signed into law by then-President Jimmy Carter.

Because the 1967 treaty was ratified by the Senate, it has the same force of law within the United States as the 1980 law.

Combined, the two require the United States to allow a person to claim asylum and gain legal status if they are “outside his or her country of residence or nationality, or without nationality, and is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

But the president, Shah maintained, was referring only to changing the 2008 Trafficking Victims Protection Reauthorization Act and the 1997 consent decree in the case of Flores v. Reno, which prevents the United States from holding immigrant children form more than 20 days.

He repeated the administration’s claim that changes to the Flores consent decree and the TVPRA are necessary because the conditions created by both have resulted in “loopholes” which are attracting large number of South and Central American refugees with children to the United States, most of whom are claiming asylum.

“If you seek asylum, if you have a child, you are entitled to certain legal rights. If you do not, or do not have a child, there is legal authority to remove people without seeing a judge,” he said. “Between Flores and the 2008 law, there are series of loopholes that have allowed thousands of people to come here — whether fraudulent here or not — and stay here, and it’s attracted people to the country to exploit those laws.”

When it was pointed out that even persons who are present in the United States illegally are often entitled to a hearing before an immigration judge before being removed, Shah denied they have any such rights.

“I don’t believe that’s the case,” he said.

Experts say Shah is mistaken

But according to the American Immigration Council, a pro-immigration advocacy group, Shah is wrong on both counts.

A fact sheet published on the organization’s website explains that immigration officers already have the authority to order the removal of “nearly any foreign national who arrives at the border without proper documents,” as well as any person who has been in the United States illegally for 14 days or less, so long as they are caught within 100 miles of the border or port of entry.

The AIC fact sheet also explains that even persons within those categories can claim asylum, and are entitled to both a “credible fear” screening interview and a hearing before an immigration judge if they do not pass the screening interview. If an individual passes the screening interview, they are usually detained until their cases are reviewed further by an immigration judge, or in some cases, released into the United States while their case is pending.

Shah said the president is simply calling for changes to be made to make it easier to remove people without valid claims because the system is too overloaded to handle the current number of requests.

“If we accommodate everybody’s request — fraudulent or not — we will be overrun with people coming here illegally,” he said.

But Immigration Judge Dana Leigh Marks said in an interview with BeltwayBreakfast last week that the Trump administration’s “zero tolerance” policies are putting the cart before the horse because even persons convicted of improper entry are still entitled to have asylum claims heard before they are removed.

Marks, who spoke to BeltwayBreakfast in her capacity as a past president of the National Association of Immigration Judges, said the administration is wasting resources by putting people into the criminal justice system before processing asylum claims instead of simply devoting more resources to processing those claims in the first place.

“If it had been done in the reverse way, where the courts had been expanded to hear from the people who’d been apprehended, we wouldn’t be having this discussion,” she said, adding that even after a person is convicted of improper entry into the United States, they are still entitled to have their asylum claim heard by an immigration judge.

Marks also pushed back against the administration’s assertions that a large number of asylum claims are fraudulent, noting that there is no evidence to back up such claims.

“It’s very troubling when we hear those accusations because there are no reputable statistics on the amount of fraud that exists in the asylum system. It is all anecdotal, and unfortunately, highly politicized,” she said.

“For as many people who say the system is riddled with fraud, you can find as many knowledgeable people and judges who will tell you that is not true. To say it is rampant is not fair to say unless there’s hard evidence of that, and to my knowledge as an expert in the field for more than 40 years, no such information exists.”

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Andrew Feinberg is the Managing Editor and lead Washington Correspondent for Breakfast Media, and covers the White House, Capitol Hill, courts and regulatory agencies for BeltwayBreakfast and BroadbandBreakfast.com. He has written about policy and politics in the nation's capital since 2007.

Congress

Flake, Raskin Push Back On Trump’s Attacks Against Immigrants as Un-American

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US. Rep. Jamie Raskin, D-Md (mdfriendofhillary/Flickr) and U.S. Senator Jeff Flake, R-Ariz (Gage Skidmore/Flickr)

WASHINGTON, June 24, 2018 — Members of Congress on Sunday hit back at President Trump’s most recent anti-immigrant rhetoric. Trump’s suggestions that immigrants and asylum seekers should not be entitled to due process as inconsistent with American values and a repudiation of the idea of the United States as a nation under the rule of law, said a Republican and a Democratic critic.

Trump’s latest outburst against the idea that immigrants deserve the protections of due process came in a Sunday morning tweet, in which the president declared: “We cannot allow all of these people to invade our Country.”

“When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came,” Trump continued, adding that the current system is “a mockery to good immigration policy and Law and Order.”

Trump has railed against the idea that immigrants and asylum seekers should be entitled to have their case heard before an impartial immigration judge on several occasions since a Tuesday speech to members of the National Federation of Independent Businesses, during which he said he wanted “border security, not judges.”

Sen. Jeff Flake rebukes Trump; says it’s not ‘reflective of who we are’

Sen. Jeff Flake, R-Ariz., characterized Trump’s recent talk of an “invasion” and his and his surrogates’ talk of immigrants as an “infestation” as consistent with his rhetoric on immigrants dating back to 2015, when the then-candidate kicked off his campaign for the presidency by calling Mexican immigrants “rapists” and accusing them of bringing crime and drugs.

“It’s all been rhetoric that’s not welcoming and reflective of who we are as a country,” said Flake, who announced that he’d retire from the Senate after this year.

Flake has become one of only a select few Republicans in Congress to regularly criticize the president and his regular attacks on the press and the ideas of democracy and the rule of law.

Flake, who spoke to BeltwayBreakfast by phone Sunday afternoon, was even more emphatic in his denunciation of Trump’s suggestion that immigrants are not entitled to due process.

“The hallmark of our country is the rule of law, and to say to those asylum seekers — ‘the huddled masses yearning to breathe free’ — that we’re not going to consider an asylum application, that’s not who we are,” Flake said.

Is there a constitutional law professor in the House? Yes, Rep. Jamie Raskin.

Rep. Jamie Raskin, a first-term Maryland Democrat who teaches constitutional law at American University, was even more critical of the president’s recent attacks on immigrant communities and the rule of law in a separate phone interview with BeltwayBreakfast, in which he declared that Trump “is trashing the American dream.”

“The president has declared war on due process within the immigration system,” said Raskin, who noted that the United States’ obligations to treat asylum seekers with respect and allow them their day in court come not only from American law, but from the 1951 Convention on the Status of Refugees, to which the United States is a signatory.

“How are we going to live up to our obligations under international law and the constitution if we don’t have judges to sort it out?” he asked.

“[Trump] just wants to build a wall and a moat and put up barbed wire, and that’s a complete betrayal of what America is as a nation founded as a haven for refuge for people fleeing violence and oppression,” he added, concluding that the president “essentially wants to turn us into a tyrannical state ourselves.”

Raskin noted that immigration judges are not just bureaucratic functionaries or cogs in a deportation machine, but “real judges” who are supposed to follow the law and fairly adjudicate claims of asylum under U.S. immigration and asylum law.

Robbing Central and South American immigrants of their due process rights

He hit back at the Trump’s increasingly vicious anti-immigrant rhetoric and apparent desire to rob Central and South American immigrants of the due process rights guaranteed them under the constitution as hypocritical considering the president’s own family history.

“Despite the fact that the president’s family, like all of our families, came here from somewhere else, and despite the fact that he has married people who are not U.S. citizens, he seems to want to treat all immigrants to this country like criminals.”

As for Trump’s description of immigrants as “invaders,” Raskin said it was more of the same from a president who has consistently refused to repudiate the white nationalists and other racists who’ve openly embraced his presidency as if one of their own had ascended to the White House.

“This administration began with a sinister relationship to the alt-right and racist movements around the world, and the president has never shed these associations,” Raskin said.

“America is not defined today by a principle of race or ethnicity or blood or religion. America is defined by our constitutional values and the dream of a society where everybody can make it who works hard and believes in the country.”

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Immigration

Immigration Law Experts Weigh In On Trump’s Attack On Immigrants’ Due Process: ‘We Are Conducting Death Penalty Cases In A Traffic Court Setting’

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The director of the Memphis immigration Court briefs service members during the naturalization process April 11, 2018, at the Citizenship and Immigration Court, Memphis, Tenn. Multiple service members from different branches of the military were in attendance. (U.S. Air Force photo by Airman 1st Class Grace Nichols)

WASHINGTON, June 24, 2018 – President Trump’s attacks on asylum seekers’ due process rights on Sunday drew strong rebukes from top immigration law experts.

An emeritus president of the National Association of Immigration Judges and the current president of the National Immigration Lawyers Association both blasted Trump.

Trump has railed against the idea that immigrants and asylum seekers should be entitled to have their case heard before an impartial immigration judge on several occasions since a Tuesday speech to members of the National Federation of Independent Businesses, during which he said he wanted “border security, not judges.”

The president’s latest outburst against the idea that immigrants deserve the protections of due process came in a Sunday morning tweet, in which he declared: “We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order.”

The White House declined – repeatedly – to provide any on-the-record information as to what Trump meant by his numerous statements disparaging immigration judges as unnecessary for securing the border in the days since the president raised the issue in his speech to the NFIB.

One senior administration official, however, suggested that there should not be as many existing open immigration cases and asylum claims because those claiming asylum “are not supposed to be here in the first place.”

Immigration judge union spokesperson says her and her colleagues’ role is necessary

But San Francisco-based Immigration Judge Dana Leigh Marks commented on Trump’s remarks by explaining that her job and that of her colleagues is necessary to show both Americans and immigrants trying to come here that the immigration process is transparent and is consistent with American values.

“It is extremely important that immigration courts continue to exist because America is a country of laws, and if we want to show that our American democracy is the right way to go for the rest of the world, we need to walk the walk,” said Marks, who stressed that she was speaking on behalf of the National Association of Immigration Judges in her role as an Emeritus President.

“We need to show noncitizen who may or not be able to stay what a fair and unbiased American court system will provide,” she said. “That means their day in court, in front of an independent and neutral decision maker.”

While she stressed that U.S. Border Patrol officers do “a great job,” Marks emphasized that the fact-finding mission to determine whether asylum claimants were telling the truth belongs to her and her 334 colleagues, and not the sworn law enforcement officers of the Border Patrol.

More judges are needed to provide a transparent process

Marks explained that having open courts serves the public interest because it allows transparency in how we determine who gets to stay and who gets told they need to leave because “we are a nation that believes that all people are people who deserve due process.”

Continuing, she explained that the biggest problem the immigration court system faces is a lack of resources that has led to a 700,000 case backlog and to each judge having a docket that is well in excess of the 700-1,000 cases experts say each should be handling.

In fact, immigration dockets will at times “nudge up close to 4,000” cases, said Marks, referring to her own caseload in the San Francisco area.

But President Trump’s claim that some are suggesting hiring “thousands” of judges is simply not consistent with the number of cases that currently exist, Marks said, noting that reaching the maximum recommended docket size of 1,000 cases per judge would require adding only 365 judges to hear the current backlog of 700,000 cases.

Her cases include people from all over the world, including those from the Southwest border region, since many people who cross the border are entitled to be released.

Trump’s ‘zero tolerance’ policy could violate U.S. and international law

Holding all asylum seekers is not only a waste of resources but also contradicts both American and international law,” Marks explained

“[Both] make it very clear that you do not punish an asylum seeker for the manner of his or her entry,” she said. “There is an international understanding that people fleeing for their lives can’t follow all of the normal processes that may take months or years to work out — they have to get to safety immediately.”

‘We are conducting death penalty cases in a traffic court setting’

Marks said her association’s members are “dismayed that the president is not better acquainted with our system and the high quality of judges who handle these death penalty cases,” adding that his latest comments show that he is “unaware of the details of our system and just how complicated it is.”

Trump’s remarks also show that he either is not aware or does not understand the high stakes of each asylum case, Marks said, because when someone applies for asylum, it is often because they believe that they will be killed if they are returned to their country of origin.

“In essence, we are conducting death penalty cases in a traffic court setting. The stakes are enormous and we need judges to be making those decisions,” she said.

Trump’s policies aren’t helping because they put resources in the wrong places 

Moreover, the Trump administration “zero tolerance” policy of putting anyone who crosses the border outside of a port of entry into the criminal justice system “puts the cart before the horse,” Marks said, because rather than building up the capacity to hear more asylum cases and either grant claimants asylum or remove them, the administration is putting all its resources into enforcement.

“If it had been done in the reverse way, where the courts had been expanded to hear from the people who’d been apprehended, we wouldn’t be having this discussion,” Marks said, adding that even after a person is convicted of improper entry into the United States, they are still entitled to have their asylum claim heard by an immigration judge.

“Unless we follow an orderly process before the court, it’s hard to separate out asylum seekers from those who are coming here to better their lives. You want to show that the United States is walking the walk, we believe in due process for our citizens, and we’re a big enough country that we can offer [due process] to everyone.”

Judge Marks pushed back against the administration’s claim that most asylum claims are fraudulent

Marks also dismissed claims by the Trump administration that 80 percent of all asylum claims are fraudulent and explained that a successful asylum claim “is like a thousand-piece jigsaw puzzle.”

“It’s very troubling when we hear those accusations because there are no reputable statistics on the amount of fraud that exists in the asylum system. It is all anecdotal, and unfortunately, highly politicized.”

“For as many people who say the system is riddled with fraud, you can find as many knowledgeable people and judges who will tell you that is not true. To say it is rampant is not fair to say unless there’s hard evidence of that, and to my knowledge as an expert in the field for more than 40 years, no such information exists,” she said.

Marks returned once again to the idea that judges — not law enforcement officers — are the people who are most qualified to determine whether a given asylum claim is valid and meets the criteria set out under U.S. law.

“As a matter of law, your case will granted if you have all the pieces, while another person’s similar case may be denied if they lack all of them,” she said.

“With all due respect to the border patrol officers — and even asylum officers — these are decisions that are better made by immigration judges through a court trial where people have an opportunity to present evidence, a judge has the opportunity to question them, and the government has its opportunity to challenge if it believes it is not true or is being exaggerated,” she said. “That’s the way to do it, in a transparent way with a judicial trial to show what happened.”

In a separate interview with BeltwayBreakfast, American Immigration Lawyers Association President Anastasia Tonello said the president’s recent comments left her “speechless.”

“There’s a racist, isolationist agenda happening here, where there are certain immigrants who are ok and certain immigrants who aren’t,” she said. “They’re focusing on these parts of the world that aren’t white.”

Tonello also suggested that immigration judges currently “have their hands tied” by “quotas as to how many asylum claimants they can allow to remain to remain in the country.”

“If their approval rates are over a certain amount, they’ll be investigated,” she said.

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Immigration

Despite Sudden Reversal To Stem Outrage Over Caged Children, Fight Over ‘Zero Tolerance’ Likely To Continue

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Screengrab of President Trump signing Executive Order on June 20, 2019

WASHINGTON, June 21, 2018 — President Trump on Wednesday claimed to have solved the family separation crisis his own administration created and tried to blame on Congressional Democrats by signing an executive order which attempts to house whole families in detention camps, but immigration law experts and advocates say essentially nothing has changed and the fight will begin anew when the revised policy is challenged in court.

The president’s sudden reversal came after days of relentless pressure from both Democrats, Republicans and the American public at large, all of whom were outraged by the pictures of children in cages as a result of Trump’s “zero tolerance” policy, the existence of which administration officials had denied for days.

Trump and his allies had heretofore blamed the need to incarcerate children and take them from their parents on “Democrat laws” which only Democrats could fix despite the fact that Republicans control both chambers of Congress.

As recently as Friday, the president was still blaming Democrats as he spoke to reporters during a rambling, falsehood-filled impromptu press conference on the North Lawn of the White House.

“[Sessions] is following laws, very simply, that were given to us and forced upon us by the Democrats,” Trump said.

When it was pointed out that this is not true in any sense, Trump repeated his baseless claim that Democrats alone were responsible for the situation at hand.

“Tell the Democrats, your friends, to call me,” he said.

And as recently as Monday, Homeland Security Secretary Kirstjen Nielsen was still denying that any such policy existed and placing all blame entirely on Democrats.

The law Trump and Nielsen blamed for restricting the administration’s ability to detain some asylum seekers and refugees is the 2008 Trafficking Victims Protection Reauthorization Act, which was signed into law by then-President George W. Bush, a Republican. The TVPRA distinguishes legal procedures for unaccompanied children who are residents or nationals of non-contiguous countries and contiguous countries like Mexico and Canada.

Also restricting the government’s power to incarcerate children is a 20-year-old settlement agreement in a court case, Flores v. Reno, in which the Justice Department agreed to not hold any children in immigration detention for more than twenty days. The Justice Department settled the case after the Supreme Court held in an opinion by the late Justice Antonin Scalia that unaccompanied alien children do not have a constitutional right to be released from government custody to anyone but a close relative, nor do they have the right to have their detention automatically reviewed by an immigration judge.

Despite his administration’s repeated denials of responsibility for the family separation policy, Trump cast himself in a heroic role at a hastily-arranged signing ceremony on Wednesday, during which he took pains to make clear that his border policy would remain “very strong.”

I didn’t like the sight or the feeling of families being separated,” Trump said, shortly before he signed the order and departed for a campaign-style rally in Duluth, Minnesota.

Trump claimed that the situation on the Southern border had been going on for many, many years, and has persisted because no other president has had the “political courage” to address this problem, which he then claimed to have solved.”

“We’re keeping families together, and this will solve that problem.  At the same time, we are keeping a very powerful border and it continues to be zero-tolerance.  We have zero tolerance for people that enter our country illegally,” he added.

Trump took great pains to stress to his supporters that the order does not return to the previous policy of allowing asylum seekers who present themselves to Customs and Border Protection officers outside of official ports of entry to be charged with improper entry into the U.S. as a civil violation, rather than a criminal one.

Speaking to supporters in Duluth, he repeated his claims to have solved the problem entirely and cast the situation as a result of Democrats’ wish for “open borders” during a Wednesday evening campaign-style rally in Duluth, Minnesota.

The Democrats want open borders — let everybody pour in, we don’t care. Let them pour in from the Middle East, we don’t care, we’re not going,” he said.

Under the newly-signed order,  the revised detention policy will still result in adults who are caught crossing the border being charged criminally. But instead of charging parents and transferring their children into the custody of the Health and Human Services Department’s Office of Refugee Resettlement, their entire families will now be detained together in what will essentially be family prison camps, at facilities to be provided by the Defense Department and other federal agencies.

Additionally, the Justice Department will be asking a federal judge in California to modify the 1997 Flores settlement agreement, which currently prohibits Immigration and Customs Enforcement officials from detaining minors for more than 20 days.

But immigration law experts and advocates say the new policy will not hold up under a court challenge, which will end with a return to the status quo ante.

“It’s disappointing that it took all of this chaos to go back to where we were,’ said Anastasia Tonello, managing partner at the Laura Devine immigration law firm and president of the American Immigration Lawyers Association during an interview with BeltwayBreakfast.

Tonello said the most likely outcome will be a successful court challenge against any change to the Flores settlement.

“It’s consistent with this administration if this executive order is challenged and it fails,” she said, adding that this has happened “several times,” including the administration’s several attempts to fulfill a campaign promise to ban Muslims from entering the country and with the administration’s attempt to end the Deferred Action for Childhood Arrivals program, which allows persons of a certain age brought here illegally as children to obtain renewable work and residency permits.

Anne Chandler, executive director of the Tahirih Justice Center, an advocacy group for victims of gender-based violence, said in a statement that the plan to detain whole families will not hold up under a judge’s scrutiny.

The administration should note that family detention – the jailing of children in mass incarceration facilities along with their parents – will not be tolerated either,” said Chandler.

“Courts have found that family detention violates the rights of children, is horribly costly to taxpayers, and causes the curtailment of due process rights and access to necessary legal and social services. The most effective and humane response is the family case management system that the administration chose to terminate.”

Despite Trump’s assertions that the border crisis had been ignored by every other occupant of the White House except him, and that the situation was a result of “loopholes” created by Democrats seeking a de facto “open borders” immigration policy, it turns out that not even President Trump’s own staff believed those particular talking points.

Shortly after Trump had departed for Duluth, White House Principal Deputy Press Secretary Raj Shah admitted to BeltwayBreakfast that the problem created by combination of the influx of South and Central American immigrants along with the legal obligations created by the TVPRA and Flores settlement was a recent one.

But rather than repeating the administration’s talking point about how the situation which led Trump and his advisors to implement the family separation policy was caused “Democrat laws” or loopholes that were intentionally created in service of Democrats’ “open borders” agenda, Shah admitted that both the laws at issue and Flores settlement were the work of people working “with the best intentions in mind.”

“It’s been a dire situation south of the border in Guatemala and Honduras for many years, but a pathway to entry to the US through which you’re caught and given a court date that you don’t have to show up to stay in the country and you can stay here illegally is relatively new, and the result of court cases and law — well-intentioned law, I would add.”

This story was updated at 10:50am. Paragraph 29 was edited to clarify that White House Principal Deputy Press Secretary Raj Shah did not explicitly deny that the laws which have led to what Trump calls “catch and release” were not part of a Democratic “open borders” agenda.

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