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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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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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