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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 covers the White House, Capitol Hill, and anything else you can think of for BeltwayBreakfast.com and BroadbandBreakfast.com. Andrew has reported on policy and politics in the nation's capital since 2007, and his writing has appeared in publications like The Hill, Politico, Communications Daily, Silicon Angle, and Washington Business Journal. He has also appeared on both daytime and prime radio and television news programs on NPR, Sirius-XM, CNN, MSNBC, ABC (Australia), Al Jazeera, NBC Digital, Voice of America, TV Rain (Russia) and CBS News. Andrew wishes he could say he lives in Washington, DC with his dog, but unfortunately, he lives in a no-dogs building in suburban Maryland.

He Went To Jared!

White House Hopes Kushner Immigration Plan Will Be ‘First Step’ Towards Reform Legislation, Officials Say

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White House Senior Advisor to the President Jared Kushner delivers remarks at the working luncheon for the Ministerial to Advance Religious Freedom on July 26, 2018 at the U.S. Department of State, in Washington, D.C. (State Department photo)

WASHINGTON, May 15, 2019 — President Trump on Thursday will unveil an immigration reform plan that would translate some of his rhetoric on the subject into concrete proposals, White House officials said.

The plan Trump will lay out in remarks delivered from the White House Rose Garden is largely the work of Senior Advisor Jared Kushner, a senior administration official told BeltwayBreakfast.

The official said Kushner hopes the plan can provide Republicans with a set of proposals that would have the President’s support if passed as legislation, and hopefully let him replicate the success he had shepherding the FIRST STEP Act criminal justice bill through Congress by bringing that experience to bear on an issue on as toxic as any in American political discourse.

The forthcoming proposal “is a first step towards having that discussion,” he said.

As described to BeltwayBreakfast, Kushner’s plan would address problems the President has identified as weaknesses in current immigration law and is built around several “pillars,” including securing the US-Mexico border, protecting Americans’ wages, satisfying employers’ need for skilled workers, and unifying families while preserving America’s “humanitarian values.”

The White House is presenting it as an effort to overhaul an immigration system that has remained largely unchanged over the half-century since then-President Lyndon Johnson signed the 1965 Immigration and Nationality Act into law.

That law, which became effective in 1968, retooled the American immigration system from one that utilized quotas favoring northern and western Europeans over immigrants from Eastern Europe — with heavy restrictions on immigration from countries with largely populations — to one that was blind to race, national origin or ancestry.

According to one senior administration official, the proposal would replace the current system which favors relatives of U.S. citizens and lacks any numerical restrictions for family members with a “merit-based” immigration system which would assign points to potential immigrants based on factors like education, age, skills, employment status, and English proficiency.

While current immigration law allows U.S. citizens to sponsor an unlimited number of extended family members — making them eligible for immigrant visas — the plan the official described would limit “family unification” eligibility to a U.S. citizen’s children and spouse, putting an end what anti-immigration activists and President Trump call “chain migration.”

It would also eliminate the “diversity lottery,” which gives citizens of countries with low rates of immigration to the United States a chance to obtain an immigrant visa. The President has frequently attacked the program as one that allows other countries to “enter” undesirables in order to send them to the United States without vetting, even though individuals enter the lottery on their own initiative and are thoroughly vetted before being allowed to enter.

Even with the demise of the visa lottery and the restrictions on immigration by citizens’ extended family members, another White House official stressed that the proposal would not effect the overall number of legal immigrants entering the U.S. because it would increase the number of immigrants admitted on merit — described by the official as “the best and brightest” — from 12 percent to 57 percent.

“We’re not increasing it, we’re not decreasing it,” the official said. “We’re just changing the composition.”

Officials said the Kushner plan will also feature a border security component, including funding for border security measures, including 33 sections of the President’s wall along the US-Mexico border, new technology and infrastructure improvements at ports of entry, and a sustainable fund for border security.

Additionally, the plan would also reform existing asylum laws by tightening requirements for asylum and giving immigration officials the tools to reform what the White House official described as a system rife with fraud by removing “magnets” for asylum seekers and closing what the administration has described as “loopholes” that allow asylum seekers to easily remain in the country.

Although the plan described to BeltwayBreakfast was long on goals, administration officials were short on details when asked for specifics about the what proposed changes the plan would make to asylum laws, or whether those changes would allow the U.S. to meet its treaty obligations under the 1967 Protocol Relating to the Status of Refugees.

Such details — including proposed legislative language for Congress — are several weeks away, said the official, who noted the plan was more a starting point than a finished proposal.

But even in a more detailed form, the plan looks to be dead on arrival in Congress, as Democrats have been loathe to take up any immigration reform proposal that does not address the status of millions of people who are currently living in the U.S. without authorization.

In particular, Democrats have repeatedly balked at proposals that fail to provide permanent protection and a path to citizenship for so-called “dreamers,” undocumented young people who were brought to the U.S. as children. While some undocumented immigrants are covered by the Obama-era Deferred Action for Childhood Arrivals program, no new sign-ups have been permitted since President Trump ended the program in 2017.

When asked why the plan made no attempt to address matters that would be necessary to garner the required Democratic votes for passage in the House or Senate, the official stressed that the plan is more a statement of priorities for Republicans to rally around than a comprehensive solution of any sort.

“This is a ‘Here’s what merit-based immigration looks like under the Trump administration, here’s what border security looks like,’ which is progress,” but isn’t going to resolve the systemic problems, he said.

“Nobody’s ever put something out and people say: ‘That’s the greatest idea, let’s sign it tomorrow, let’s do a parade for you.’ Where you start is never where you end. This is the right place to start.”

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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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