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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.

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White House ‘Compromise’ Bill Contains Previously-Rejected Immigration Reforms, Makes Asylum Claims More Difficult

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Illustration by Amy Kins/Pixabay

WASHINGTON, January 23, 2019 — Despite promises to the contrary, legislation Republicans are promoting as a “compromise” to reopen the government is actually a vehicle for sweeping changes to the American asylum system.

Administration officials have spent the days since President Trump announced the proposal promoting it as a bipartisan compromise, packed with incentives meant to lure Democratic support. The Senate is expected to take up the measure sometime on Thursday, which will be the 33rd day of the longest partial government shutdown in American history.

One provision that White House officials have touted as a concession to Democrats would provide for a temporary extension to the Deferred Action for Child Arrivals program, which allows certain people whose parents brought them to the US illegally as children to obtain temporary work and residence permits. Also included is language to extend Temporary Protected Status to a small number of foreign nationals from disaster-stricken countries.

Democrats have universally panned both the DACA and TPS provisions as fixes to the president’s own messes, created when he and his administration unilaterally ended both programs during his first year in office.

The DACA extension, however, became a moot point this week after the Supreme Court declined to hear the Justice Department’s appeal of a lower court decision which allows existing DACA recipients to renew their permits.

Although the DACA and TPS provisions give the appearance that Republicans are giving away something in a form of legislative horse-trading, buried towards the end of the bill is language that would take away processes and programs supported by Democrats and immigration advocates.

The asylum provisions contained in the Central American Minors Protection Act would render unaccompanied minors from South and Central America ineligible for asylum unless they apply at processing centers in their home countries or at to-be-determined locations. Arriving in the United States without a parent or guardian would also render one ineligible for asylum.

The bill would also strip courts and immigration judges of any jurisdiction to review most asylum denials, while handing that duty over to Department of Homeland Security officials answerable only to the executive branch. It would also expand the circumstances under which an asylum seeker’s claim could be deemed frivolous, a determination which can carry severe sanctions.

One Justice Department official close to the process said the attempt to deny asylum seekers due process is more of the same for the Trump administration.

“They believe that these people are not Americans and are not entitled to the same rights that Americans have. They would like to write asylum out of the law because they do not believe America will survive if we give away too much of our pie,” said the official.

The official suggested the current “border crisis” is a direct result of the administration’s deliberate overloading of the immigration court system in hopes that the public will accept the whole system being thrown out and replaced by one in which almost no one can find refuge in the United States.

“They do things to make it almost impossible for someone to win their case, because they don’t believe these people should be allowed to remain in the United States,” the official said. “They don’t have the votes to change it so they’re delegitimizing it and making it dysfunctional.”

The official was particularly concerned about the possibility of the law being changed to put asylum determinations under the purview DHS officials, and noted that when DHS officials make removal decisions, their rejection rate is “very high” compared with the immigration courts.

“The law…does not lend itself to rushing through these situations,” said the official, who pointed to the president’s recent televised speech in which he once again ridiculed the idea of giving asylum seekers access to immigration courts.

“This administration is completely at odds with the existing legal structure. They do understand the law, but they don’t believe the fundamental basis of it is correct.”

Corroborating the Justice Department official’s clams, one former Immigration and Customs Enforcement official who spoke with BeltwayBreakfast also suggested that the end goal is actually to overwhelm the system. At that point. there will no longer be enough resources to provide asylum-seekers and other immigrants with the due process rights they are owed under current law.

But a senior DHS official whom the administration made available to reporters late Tuesday said the purpose of the legislation is not to limit anyone with “legitimate” claims of asylum.

“We believe that the provisions will actually encourage more people with legitimate claims to asylum” by making it easier for them to apply, he said, adding that it is “apparent to everyone” that there are “widespread” frivolous claims.

American Immigration Council Policy Analyst Aaron Reichlin-Melnick disputed the administration’s claim that many asylum claims are fraudulent.

“Just because somebody loses their asylum case, that doesn’t mean that they didn’t have a fear of persecution in their home country. It’s just that their fear may have fallen within grounds that didn’t qualify for asylum under the law,” he said, noting that the attorney general already has great discretion to interpret the statutory ground on which asylum is granted.

Reichlin-Melnick said the proposed changes reflect a disdain for the idea that asylum seekers are entitled to due process.

“The administration has characterized the basic fundamental principle that America will act as a refuge for those fleeing persecution as a loophole,” he said. “Everyone has the right at least to go through the asylum process and the administration would prefer to cut off access to the asylum process rather than deal with all asylum seekers in general.”

Tennessee-based immigration lawyer Greg Siskind suggested that the asylum provisions in the White House bill show that the Trump administration isn’t serious about actually reforming the immigration system or reopening the government, particularly since they’ve appeared in several previous immigration bills.

“They’re poison pills,” Siskind said. “For Democrats, it would be politically disastrous to vote for them to sign off on that stuff, so it makes one wonder what their purpose is other than to antagonize.”

Siskind echoed the sentiments of the Justice Department and ICE officials by suggesting that the Trump administration don’t want anyone to be able to apply.

“They don’t want people applying for asylum — that’s the bottom line,” Siskind said. “There’s just one thing after another that’s designed to make the U.S. asylum system as unattractive and unavailable as possible.”

Despite the administration’s hopes that sufficient Democratic votes could be found to end debate on the measure, the bill has encountered a reception as chilly as the subfreezing temperatures that have gripped Washington in recent days. Without Democratic support, the Republican proposal is not expected to garner the 60 votes Senate rules require to end debate on Thursday.

Asked about her expectations for Thursday’s vote, White House Press Secretary Sarah Huckabee Sanders was far from confident, telling reporters that she hopes the bill would be successful.

Sanders appeared to preview the administration’s strategy for confronting the bill’s eventual failure by suggesting the sole responsibility for a lack of a deal would fall on Senate Democrats.

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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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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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