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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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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.

Immigration

As Migrant Caravan Heads North, Trump Blames Mexico, El Salvador, Guatemala, Honduras — And Democrats

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President Trump and Homeland Security Secretary Kirsten Nielsen meet with Border Patrol officials as they visit the Border Wall prototypes near San Diego on February 13, 2018.

WASHINGTON, October 22, 2018 — With the midterm elections two weeks away, President Trump is trying to keep his immigration policy at the front of voters’ minds by blaming Democrats and the nations of El Salvador, Guatemala, Honduras and Mexico for the continuing progress of a large caravan of migrants — which Trump said includes “unknown Middle Easterners” — making its way northward.

Sadly, it looks like Mexico’s Police and Military are unable to stop the Caravan heading to the Southern Border of the United States. Criminals and unknown Middle Easterners are mixed in,” Trump wrote, calling the caravan of roughly 6,000 people constitutes a national emergency.

He later added: “Every time you see a Caravan, or people illegally coming, or attempting to come, into our Country illegally, think of and blame the Democrats for not giving us the votes to change our pathetic Immigration Laws! Remember the Midterms! So unfair to those who come in legally.”

Trump closed the three-tweet series by vowing to end or reduce foreign aid to the governments of El Salvador, Guatemala and Honduras, as those countries “were not able to do the job of stopping people from leaving their country and coming illegally to the U.S.”

When BeltwayBreakfast asked one senior White House official how Trump expected those countries to stop people from emigrating — short of emulating the former East German Democratic Republic keeping people in with walls — the official was unsure but said an answer would be forthcoming.

Both the president and members of his team, particularly Senior Advisor Stephen Miller, have said repeatedly that immigration is a winning issue for them despite widespread outrage over the administration’s “zero tolerance” policy — which led to several thousand children being separated from their families at border crossings — and widespread support for a pathway to citizenship for so-called “dreamers,” undocumented immigrants whose parents brought them to the United States illegally as children.

The caravan in question was organized by a group called Pueblos Sin Fronteras, or People Without Borders (not connected to the Washington, DC-based nonprofit) and consists of migrants who wish travel in one large group to protect themselves from the gangs and cartels who often target small groups and individuals. Organizers say the goal of most migrants traveling in the large group is to present themselves for asylum, either in Mexico or at a United States port of entry.

While such caravans are organized regularly, the coverage they’ve received in various media outlets has led to an inordinate amount of attention from the avid television watcher currently ensconced in the White House, who appears to have taken their very existence as a personal affront. 

Trump has made immigration policy a centerpiece of his political strategy since the first day of his campaign for the presidency, when he railed against Mexican “rapists,” who he alleged were “bringing crime and drugs.” 

Since becoming president in 2017, he has frequently lashed out at Democrats and blamed them for what his administration calls “loopholes” in immigration law that prevent the Department of Homeland Security from immediately deporting asylum seekers or keeping them incarcerated while their claims are pending.

Although Trump continues to suggest that migrants traveling in the group are looking to enter the U.S. illegally, asylum seekers who present themselves at a port of entry (and to a lesser extent to U.S. Border Patrol agents) actually avail themselves of a legal process that can result in their being given permission to remain in the United States.

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Immigration

Trump Administration Convinced Germany To Take Ex-Nazi Guard ‘On The Moral Ground’

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Jakiw Palij exits a plane in Dusseldorf on Tuesday after being deported from the US. BILD EXCLUSIVE/Sebastian Karadshow/Josef Frank Weiser

WASHINGTON, August 21, 2018 — The United States’ Ambassador to Germany on Tuesday told reporters that the Trump administration was able to deport former Nazi concentration camp guard Jakiw Palij because new German cabinet members were willing to accept him after years of previous refusals by Berlin.

Germany saw it as a moral obligation…because this individual served in the name of the former German government,” said Amb. Richard Grenell during a conference call with reporters. “It was something that the new cabinet members accepted.”

Mona Ragheb, Senior Advisor for the Human Rights Law Section of Immigration and Customs Enforcement, which conducted the operation to remove Palij, said the removal operation “ensures the US will not become a safe haven for Nazis.”

She told reporters that the removal operation “was affected without incident” Monday night, and took place by way of “a specially chartered air ambulance which was appropriately staffed to address his medical needs. Palij arrived in Germany on Tuesday at roughly 8:00 a.m. local time.

The 95-year-old, born in what is now Ukraine, had been ordered deported by an immigration judge in 2004, but had remained in the United States because no country would agree to accept him.

But the empanelment of a new German cabinet changed things, Grinell said, combined with a decision by s by the Trump administration to make a moral argument for Germany accepting him rather than a legal one.

“In order to get him out of [the U.S.] it was important to…argue on the moral ground,” he added.

Grenell thanked Germany’s new foreign and interior ministers for their assistance in resolving the Palij case, which he said had been a priority of President Donald Trump.

Foreign Minister Heiko Maas, Grinell said, “brought a new and different energy” to the longstanding negotiations over the former Nazi guard, while Interior Minister Horst Seehofer took “a creative look” at whether to admit Palij, who longtime Justice Department Nazi hunter Eli Rosenbaum said was the last known Nazi war criminal awaiting deportation from the United States.

Previous ex-Nazis who’ve been deported from the U.S. have been prosecuted upon their return to Germany. One notable example was that of John Demjanjuk, the Ukrainian-born Red Army soldier who participated in atrocities at the Sobibor concentration camp after volunteering to serve in the German army as a way of getting out of a POW camp.

Demjanjuk, an Ohio resident during his time in the United States, was deported to Germany in 2009 after several previous attempts at deportation and trial, including one resulting in a 1988 conviction for crimes against humanity in an Israeli court (which was later overturned). In 2011, a German court convicted him of 27,900 counts of murder, but because Demjanjuk died in 2012 before his appeal was heard, he was legally a free and innocent man at his death.

Whether Palij will be tried for his alleged crimes is up to the German government, though Grinell stressed that the Trump administration did not ask Berlin to commit to any legal process.

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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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