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.
White House Hopes Kushner Immigration Plan Will Be ‘First Step’ Towards Reform Legislation, Officials Say
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.”
White House ‘Compromise’ Bill Contains Previously-Rejected Immigration Reforms, Makes Asylum Claims More Difficult
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.
As Migrant Caravan Heads North, Trump Blames Mexico, El Salvador, Guatemala, Honduras — And Democrats
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.