As with the D.C. appeals court, the supposedly “liberal” 9th Circuit Court of Appeals--despite technically having a majority of its members nominated under Democratic administrations--found itself spoken for by a three-judge panel with two members who were Republican appointees. This time, in a 2-1 decision, the appeals panel allowed the Trump administration to rescind “temporary protected status” from 300,000 refugees from El Salvador, Nicaragua and Sudan, allowing for their deportation by this January. This cruel and prejudicial decision was made worse by the fact that the two Republicans on the panel claimed not to see how Donald Trump’s dehumanizing declarations against the refugees were a factor in the decision to deport them.
One of the Republican judges, Consuelo Callahan, made the unbelievably ignorant and insensitive claim that “Plaintiffs fail to present even ‘serious questions’ on the merits of their claim that the Secretaries’ TPS terminations were improperly influenced by the President’s animus against non-white, non-European immigrants…a glaring lack of evidence tying the President’s alleged discriminatory intent to the specific TPS terminations.” What planet has she been living on these past four years, unless she shares Trump racist inclinations?
The Democrat on the panel, Judge Morgan Christen, did not hold back:
Remarkably, the government urges us to interpret the many denigrating comments in the record as descriptions of inferior living conditions in foreign countries, rather than evidence of racial animus. But we cannot sweep aside the words that were actually used, and it would be worse for us to deny their meaning. Some of the statements expressly referred to people, not to places. The President’s statements require no deciphering.
The majority of TPS recipients are from El Salvador following the 2001 earthquake, but it is also a country that suffered for years from right-wing death squads supported by the Reagan and first Bush administrations. It can be argued about what was meant by the term “temporary,” but one suspects this was a term that was more “palatable” for certain constituencies. Like most refugees under TPS, those from El Salvador had their status regularly extended, and now after almost 20 years when these people have their homes and families in the U.S., many with U.S.-born children, the Trump administration wants to just boot them back to a place they no longer know, and obviously an alien world for their children. The inhumanity of the Trump administration can only be explained by simple and unadulterated racism against these people.
Trump’s handling of the TPS issue should be one point of attack for Joe Biden when he is confronted by the question of immigration during the upcoming debates. It should be a fairly easy case to make, between being humane and inhumane. “Everyone” is against illegal immigration, and Biden should just nip any claims that he is “for” it in the bud and then go on the attack. It should be easy is to attack Trump’s immigration policies, whose purpose is nothing less that ending not just all immigration from what he calls “shithole” countries filled with people he denigrates and dehumanizes on a near daily basis, but making immigrating to this country a matter of some arbitrary level of”merit.” It must be pointed out that people from all countries who live here have contributed to the well-being of this country; every occupation in this country, low or high, has “merit,” because you don’t see H-1B office “tech” workers doing the kind of essential work that actually keeps this country above ground.
Biden should call out the Trump administration DHS’ efforts to stop all immigration from countries that “offend” Trump and his racist white nationalist base. Biden must point out that while the Trump administration keeps pounding away at illegal immigration, it has made it increasingly difficult for immigrants to legally enter the country. According to a recent report by Forbes, since 2016 legal immigration has been cut in half, with family-sponsored preferences cut by 92 percent, refugees by 71 percent, and asylum seekers by 67 percent. Forbes notes that immigrants of all classes are essential to maintain the country’s workforce and economic growth, but Trump and advisers like Stephen Miller are completely blind to reality; only their prejudices motivates them on this issue.
The aim of the Trump administration is first to end all immigration from non-white countries. On its website, The National Immigrant Justice Center has provided a timeline of Trump’s efforts to do just that. At the time individual policy decisions were made, they were just another item in the news cycle; taken together, they reveal a shocking and appalling level of dehumanizing in this administration:
January 2017: Trump issues an executive order mandating “construction of a border wall, the increased and prolonged jailing of asylum seekers, and the increased use of expedited deportation procedures.”
February 2017: The USCIS makes it more difficult for asylum seekers to prove credible fear. “This new guideline ordered asylum officers to be stricter in assessing claims of fear made during "credible fear interviews," the threshold interview that is required before an asylum seeker is allowed to present their claim to an immigration judge. Immigration law experts warned that the heightened standards would result in erroneous deportations of asylum seekers back to harm or death.”
April 2018: The Department of Justice requires immigration judges to adhere to a “quota” system. “Despite opposition from the National Association of Immigration Judges, this policy requires immigration judges to make final rulings on 700 cases per year (about three per day) with repercussions—either being sent to a different immigration court or termination—if they do not comply. With judges under pressure to rush through court proceedings, the policy threatens the ability of asylum seekers to properly prepare and present their case.”
“Attorney General Sessions introduces the "zero-tolerance" policy, triggering widespread family separations.The "zero tolerance" policy, announced by Sessions via memo, required that all arriving migrants, including asylum seekers, be referred to the DOJ for criminal prosecution for illegal entry or reentry. What resulted was the mass systemic separation of families, as parents were prosecuted and children were taken into custody, causing irreversible, life-long trauma to over 2,600 children. Subsequently revealed internal government memos show that this policy was explicitly intended to serve as a deterrence mechanism for asylum seekers.”
June 2018: “Attorney General Sessions severely limits the availability of asylum for survivors of domestic violence and gang. Again utilizing his ability to certify BIA cases to himself, Sessions effectively limited the availability of asylum to most individuals fleeing gender-based violence or violence at the hands of gangs of gangs and making it easier for ICE counsel to argue for deportation.”
September 2018: “DHS and the Department of Health and Human Services (HHS) attempt to dismantle the Flores settlement agreement and the Trafficking of Victims Protection Reauthorization Act of 2008 through regulatory process. DHS and HHS both issued notices in the federal register of a proposed rule that would, among other things, allow for the indefinite detention of families, enable DHS to self-license family detention facilities, and undermine unaccompanied children’s rights to a bond hearing.”
“Official "turn back" (or metering) policy executed by CBP is confirmed in the Office of the Inspector General report about family separation. The OIG report stated that the practice of metering, which constitutes the turning-back of asylum seekers at ports of entry where they are forced to wait in haphazardly operated queues amounting to weeks or months of delay, had been a tactic used by CBP going back to 2016. This policy compounds other longstanding border-wide tactics that the CBP has implemented to prevent migrants from applying for asylum in the U.S., such as lies, intimidation, coercion, verbal abuse, physical force, outright denials of access, unreasonable delays, and threats—including the threat of family separation."
November 2018: “In response to groups of asylum seekers from Central America arriving in the fall of 2018 (known colloquially as caravans), the administration, via proclamation, banned individuals who do not present themselves at a point of entry from applying for asylum. The proclamation was implemented through an IFR, allowing for immediate implementation without the ordinary notice and comment period usually required for significant regulatory changes. The ban imposes an abitrary geographic restriction on individuals who are fleeing for their lives.”
January 2019: The “Remain in Mexico” policy. “The MPP program constituted a dramatic undermining of the foundation of the U.S. asylum system by systematically returning asylum seekers who have been inspected at a port of entry and put into removal proceedings to Mexico to await their proceedings. Since its inception, the program has been implemented at ports of entry all across the southern border, placing asylum seekers at risk for violence, exploitation at the hands of the cartels, and death. Approximately one percent of people returned to Mexico under the program are able to find representation in their court cases and the program regularly results in family separations.”
May 2019: “USCIS issues a memo attempting to undercut protections provided to unaccompanied children during the asylum process The memo undermines the few but essential protections provided to unaccompanied children in their asylum proceedings, including exemption from the one-year filing deadline and non-adversarial asylum interviews with an asylum officer, by requiring immigration adjudicators to continually re-adjudicate a child's designation as unaccompanied. These new procedures undoubtedly impact children's ability to effectively access their right to asylum by stripping away protections specifically designed to reflect the vulnerability of children who arrive at a border alone.”
July 2019: “All undocumented immigrants in the interior become targets for arrests and deportation through new IFR expanding procedures that expedite deportation Pursuant to another major regulatory change implemented as an IFR, any undocumented individual who cannot prove to have been continuously present in the U.S. for at least two years can be placed in a fast-track deportation process, without the opportunity to plead their case in front of an immigration judge or get the help of an attorney. Expedited removal proceedings do allow individuals to seek referral to an immigration court proceeding to seek asylum, but the program has been consistently criticized for officers' failure to identify legitimate asylum seekers, resulting in the return to many to harm.”
A new pilot program “gives border patrol officers the authority to conduct credible fear interviews Stephen Miller has been promoting the implementation and expansion of a pilot program that would allow CBP officers, rather than trained asylum officers working under USCIS supervision, to conduct credible fear interviews. Requiring asylum seekers, recently arrived and fleeing fresh trauma, to articulate their fear of return to uniformed CBP officers will certainly mean that many asylum seekers will be forcibly returned to harm and death.” CBP agents at the Dilley Family Residential Center falsely identified themselves to children and families as "asylum officers."
September 2019: “Acting Department of Homeland Security (DHS) Secretary McAleenan announces DHS will no longer allow any arriving asylum seekers to be released into the community. Acting Secretary announced that asylum seeking migrant families, who do not express a fear of return to their home country, would no longer be released into the interior of the United States after being arrested and detained by CBP; however, there will be some humanitarian and medical exceptions. For those families who do express a fear, they will be returned to Mexico under MPP policy. This will only exacerbate the violence and danger asylum seekers stuck in Mexico currently face.”
“The Supreme Court allows full implementation of Asylum Ban 2.0 (barring migrants who cross through another country prior to arriving at the U.S. border from asylum eligibility) In July 2019, the administration published an IFR banning all people, including children, who have traveled through another country to reach the United States from applying fr asylum. This rule is a de facto asylum ban for nearly all asylum seekers seeking to enter the U.S. through the southern border.”
November 2019: “DHS and DOJ issue IFR effective immediately, that allows the U.S. to enter into unsafe third country agreements with Honduras, El Salvador, and Guatemala (U.T. v. Barr) Under this agreements, known as ACAs, individuals would be prohibited from applying for asylum in the U.S. if the following 4 requirements are met: 1) the U.S. entered into a bilateral or multi-lateral agreement; 2) at least one of the signatory countries is a "third country" for the asylum seeker; the asylum seeker's "life or freedom would not be threatened in that third country" on account of their race, religion, nationality, political opinion, or particular social group; and 4) the "third country provides [asylum seekers] removed there...'access to a full and fair procedure for determining a claim to asylum or equivalent temporary protections.'" Under this new rule, asylum officers and CBP would have the discretion to conduct threshold screenings to determine which country will consider an asylum seeker's claim.”
“DHS proposes rule to double wait time for, or block asylum seekers seeking work authorization based on how and when they entered If finalized, the proposed rule would, among other changes, extend the time an asylum applicant would have to wait before submitting an application for a work permit from 180 days to 365 days; exclude individuals who did not lawfully enter the U.S. through a port of entry from being eligible to apply for asylum; and exclude individuals who did not file an asylum application within one year of their last entry from being eligible for asylum."
December 2019: “USCIS published a proposed rule increasing fees, eliminating most fee waivers, and imposing an unprecedented fee for asylum seekers Besides seeking drastic increases that will disproportionately harm indigent and low-income immigrants, USCIS proposed the introduction, for the first time ever, of fees for affirmative asylum filings and for initial work authorization for asylum seekers.”
“DHS and the DOJ publish a proposed rule severely curbing the number of individuals who may qualify for asylum. This joint proposed rule adds seven new bars to asylum eligibility based on prior conduct or involvement in the criminal legal system, and significantly alters the way immigration adjudicators determine whether allegations of wrongful or criminal conduct render an individual ineligible for asylum. The proposed rule will severely impact asylum seekers and threatens U.S. compliance with its obligations under international and domestic asylum law.”
January 2020: “CBP begins expanding two new programs to the Rio Grande Valley, cutting off asylum seekers from accessing legal counsel and rushing them through the credible fear process Two new programs – the Prompt Asylum Claim Review (PACR), applying to individuals other than Mexico, and the Humanitarian Asylum Review Process (HARP), applying to Mexican nationals – were initially launched in the El Paso era in October 2019. Under the PACR and HARP programs, asylum seekers remain in CBP custody rather than being transferred to Immigration & Custody Enforcement (ICE) for their credible fear processing (the threshold interviews for determining asylum eligibility). PACR and HARP result in asylum seekers being unjustly rushed through the credible fear process and ultimately sent back to dangerous situations. Additionally, asylum seekers are effectively precluded from receiving meaningful help and support from counsel or loved ones due to limited access to phone calls. Preliminary rates of CFI passage in these programs are appallingly low because of the due process challenges.”
“Trump Administration further expands new expedited deportation procedures and agreements to deter asylum seekers The Acting Commissioner for CBP testified before Congress in late February that DHS has: put more than 3,700 migrants through HARP and PACR, expedited deportation programs described in more detail below; and removed approximately 700 asylum seekers to Guatemala under the existing Asylum Cooperative Agreement, also described below. Ongoing reports reveal the massively harmful impact that these programs are unleashing on refugees at the southern border. Asylum seekers forcibly sent to Guatemala under the “asylum cooperative agreements” (ACA) endure squalid conditions that deter many from seeking protection; 75 percent of the asylum seekers (all of whom are Hondurans and Salvadorans) are women and children. Guatemala’s asylum infrastructure is ill-equipped to process the volume of requests it receives, and many asylum seekers fear that they will meet the same persecution they fled from their home country.”
March 2020: “CBP interferes with asylum seekers' rights to fear-based screenings (A.B.-B. v. Morgan) When asylum seekers enter the U.S., they have the right to a credible or reasonable fear interview (CFI/RFI) with a trained asylum officer from USCIS. Applying the appropriate, non-adversarial standard in CFIs and RFIs is a matter of life-or-death, as asylum seekers can be summarily deported if they do not pass the CFI. In 2019, CBP entered into an agreement with USCIS to allow CBP officers to take over CFIs. Unlike USCIS asylum officers, CBP officers are purely trained in law enforcement and have a hostile track record toward asylum seekers. That is why federal laws and regulations require CBP officers to refer asylum seekers to USCIS asylum officers, not take their place.”
“Board of Immigration Appeals (BIA) decision issues precedent against release of asylum seekers on bond (Matter of R-A-V-P-) For years now, the Trump administration has arbitrarily stopped releasing asylum seekers on humanitarian parole, leading to the indefinite detention of thousands across the country. Some asylum seekers have remained eligible to seek release on a monetary bond. To adjudicate bond requests, immigration judges assess whether the asylum seeker poses any danger to others or national security, or is likely to become a “flight risk”—i.e., fail to appear at subsequent hearings. On March 18, 2020, the Board of Immigration Appeals issued a precedential decision further restricting the opportunity for this already limited category of asylum seekers to seek bond, reasoning that those who do not have ties in the United States, are not currently employed, or may lose their asylum case pose a flight risk.”
May 2020: “Executive branch closes U.S. border indefinitely to asylum seekers under the guise of containing COVID-19 In March, the CDC made the draconian and unprecedented decision to close the border--largely based on the false assumption that asylum seekers must be detained— than paroled to shelter-in-place with their relatives. In May, CDC extended its order with no end in sight. Since the CDC closed the border in March, Customs and Border Protection (CBP) began mass expulsions of over 20,000 migrants—including over 1,000 unaccompanied children.”
June 2020: “Two precedential court decisions place asylum seekers at risk of detention and summary deportation nationwide, without due process The Trump administration expanded "expedited removal" away from the borders, allowing immigration agents to pick up any person anywhere in the country and deport them without judicial review unless the person can convince the immigration agent that they are a citizen, or that they have some lawful status in the United States…The combined effect of these decisions will morph expedited removal into a nationwide rapid deportation program operating in the shadows.”
July 2020: “New proposed rule seeks to codify public health ban on asylum seekers The Department of Homeland Security (DHS) and the Executive office for Immigration Review (EOIR) issued a proposed rule designed to exclude asylum seekers who flee from or travel through a country where infectious or highly contagious diseases are "prevalent," or exhibit symptoms "consistent with" such disease or illness. This new rule would consider such asylum seekers a "danger to the security" of the U.S. This rule is reminiscent of the now indefinite border closure imposed by the CDC in contravention of decades of U.S. and international law. (See May 2020 update for more information.) NIJC submitted comments opposing those proposed regulations, as they violate U.S. and international mandates not to turn away those who seek refuge from persecution, even during public health emergencies.”
The Trump administration seems to have little to do but concoct new ways to turn off the immigration spigot so only a few drops escape. That has certainly been the case in regard to asylum seekers, but Trump and Miller are also busy on other fronts to make more difficult immigration through “normal” channels. But even for legal immigrants once they get here, Trump is making it a challenge to keep from being deported, especially with the “public charge” rule, and arbitrary “vetting.”
There are many ways to attack Trump on the immigration front, when one recognizes that he is speaking for nativists, xenophobes and white nationalists. Trump’s complete lack of empathy for people seeking to escape violence and poverty, combined with Miller’s personal vendetta against people of color regardless of their legal status, simply cannot be morally or ethically defended.
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