The last few months have been a turbulent time for the United States administration officials dealing with immigration law as well as for immigration and human rights lawyers. The U.S. government’s new “Zero Tolerance” policy seems to contradict the country’s historical roots, yet the government is stubbornly unyielding in its commitment to it. With an American President who is the descendent of migrant ancestors, it is hard to comprehend a policy that demonstrates aggressive hostility towards migrants, especially those fleeing persecution, on America’s political landscape.
Nevertheless, to a greater extent than any administration in recent times, ‘Zero Tolerance’ is the policy that the current administration has adopted. And as one might expect, this new policy has led to reactions from immigration and human rights lawyers who are pushing back on the basis of America’s traditionally professed values of inclusiveness and welcoming the downtrodden and persecuted to its shores.
The American Civil Liberties Union or ACLU has filed lawsuits challenging the ‘Zero Tolerance’ and other civil society actors have challenged family separations. These challenges rekindle memories of the 1990’s litigation that resulted in the Flores Settlement criticizing the then-Democratic President William Clinton for excesses in the use of detention. As a result of the Flores litigation today children cannot be detained more than 20-days. This litigation was not enough to reign in the new policies. In fact, in the past week the Administration has filed a court case seeking to modify the Flores Settlement be able to detain women and children without fewer checks on already very broad authority.
The most recent controversy about the separation of children from their families, is only the latest of a series of immigration missteps by the U.S. government. For the past 4 years, the government has implemented a policy of family detention that has left women and children incarcerated in facilities that are prisons in all but name. Although family detentions were not initiated by the current Administration, its Zero Tolerance policy has done much to draw attention to the plight of these women and children who are fleeing persecution in their countries of habitual residence or nationality. It has often made it easier to separate families as the prosecution of mothers fleeing persecution is also often the modality through which separations are affected.
Moreover, over although the recent Executive Order signed by President Trump alleged to suspend the separation of children from their parents for at least a limited period of time, it did nothing to end the inhumane practice of family detention. In fact, due to the Zero Tolerance policy it is likely that more families will be detained, both woman and children. Because the Flores Settlement requires that children be released within 20 days, it is likely that family separations will continue as children may be released while their parents and caregivers remain in detention and are sometimes removed from the country without their children. Finally, the government’s decision to challenge the Flores Settlement may well will lead to longer family detentions.
Despite the President touting an Executive Order to end family separations, few of these policies have been made put in place through formal rule-making procedures or through the intricate negotiations of legislation. Instead, senior Executive officials have merely ordered their staff to implement these policies.
Recently, U.S. Attorney-General Jefferson Sessions took the usual step of deciding immigration cases that he had referred to himself. In other words, the Attorney-General took over a case from the Board of Immigration Appeals (B.I.A. or Board) in which his office was already a party and decided it himself. The B.I.A. is an Article I judge or and administrative judge or authority. Unlike Article III judges who have life tenure and are independent from other branches of government, immigration judges and their appellate body, the B.I.A., are under the direct control of the Executive branch of government. Their decisions can be reversed at the whim of the Attorney-General, who, of course, can do the President’s bidding.
Although one might wonder how the U.S. government’s top lawyer can decide to review a case in which he is a party, the practice is provided under the United States’ immigration laws. According to the Code of Federal Regulations (C.F.R.), the relevant rules of which are also authored by the Attorney General’s Office, he has the authority to review cases decided by all the Executive Officers under his authority. One of these regulations, 8 C.F.R. 1003.0, states expressly that the Board, although an appellate authority, is under the authority of the Attorney-General.
The recent announcement by President Trump that foreigners should be removed without any due process of law only emphasizes that lack of respect for judicial independence there is in the federal system of immigration law. At least as far as asylum seekers are concerned—people fleeing a well-founded fear of persecution—this would appear to be clearly inconsistent with international refugee or human rights law to which the U.S. as subscribed.
Most notably, the United Nations Refugee Convention, which has been codified in U.S. domestic law in the Refugee Act of 1980, the International Covenant on Civil and Political Rights, which the U.S has ratified with the reservation denying it creates individual rights, and the Convention against Torture, and Other Cruel, Inhuman, and Degrading Treatment or Punishment, which the U.S. has ratified with a reservation defining “‘cruel, inhuman or degrading treatment or punishment’” as meaning only that as defined by U.S. courts as contrary to the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.”
Even with the United States’ limited understanding of its international human rights obligations—understandings that have been objected to by several other States and criticized by the authoritative international human rights bodies under the various treaties—it is likely that the Zero Tolerance policy, family separations, family detentions are at least in some instances inconsistent with America’s international human rights obligations.
How did American get to this stage? Although the digression can be traced back several years, there are several recent actions that accelerated the move from a defender of international human rights law towards being characterized as a rogue State.
After more than two years of pre- and post-election rhetoric about how American is being overrun by foreigners that may have been dismissed as mere ignorance of America’s history as a country built on migrant labour and the contributions of foreigners, the administration began to implement his unusual beliefs that migration was bad. On the international level it withdrew from the negotiations of a Global
Compact on Migration, a non-legally binding agreement between almost every country in the world on how to treat migrants with basic dignity. Then after months of rhetoric criticizing the Human Rights Council that had increasing criticized the U.S. treatment of migrants, the U.S. withdrew from the Council instead of trying to justify its policies before an increasingly skeptical international audience.
Then the domestic action started. On 30 March 2018, the Attorney General promulgated new standards for immigration judges in a critical Executive Office of Immigration Review (EOIR) Performance Plan for Adjudicative Employees. This plan states that immigration judges will be judged on how many cases they complete. Read in the context of employees of the Attorney-General it is easy to understand this as a request-that-cannot-be-refused to reject more asylum-seekers, faster. This is the case, even through the standards are presented as case management instructions.
In past the above reading is apparent, because at about the same time the Attorney-General took over and decided the case known as Matter of Castro-Tum, 27 I&N Dec. 271 (A.G. 2018). In this case, Attorney-General decided that immigration judges and the B.I.A., which handles appeals from them, do not have the general authority to suspend indefinitely immigration proceedings by a process known as ‘administrative closure’. Prior to this decision administrative closure had been an important tool used by immigration judges to manage unwieldly full dockets. With his decision in this matter the Attorney-General added an estimated 300,000 cases to the docket of the 350 immigration judges around the nation. Ashley Tabaddor, president of the National Association of Immigration Judges, in an interview with National Public Radio, lamented the fact that the “Attorney General’s decision in one fell swoop is overturning decades of recognized authority and practice.” It also seemed inconsistent with the Standards he promulgated calling for better case management. That is, unless it is read as demanding that asylum-seekers be rejected instead of given a hearing with due process to decide their claims.
Causing turmoil among immigration judges did not seem to deter the Attorney-General from stepping in again on June 11, 2018, and deciding the Matter of A-B-, 27 I7N 316 (A.G. 2018), after the B.I.A. had refused to decide in favor of his lawyers’ legal arguments. In the Matter of A-B-, the Attorney-General referred to himself and then decided a matter concerning a woman who had fled her native Guatemala to escape the violent abuse of her spouse from whom the government would not or could not protect her. Ms A-B- had been repeatedly beaten, raped, and subjected to emotional abuse by her husband, while she was married to him and afterwards.
Ms A-B- had been granted asylum in the United States after she had gone through the arduous asylum process. She had first fled to the U.S. and was detained after being apprehended upon entering the U.S. without inspection. She was then questioned by the Customs and Border Patrol officers, interviewed by an Asylum officer who found her claims credible, rejected by an immigration judge who thought she should not qualify for asylum, and ultimately appealed to the B.I.A. Along the way, the U.S. government, while arguing that she did not qualify for asylum also conceded many of her claims. At the end of this long process, after taking the better part of a year to consider the case, the Board granted her asylum.
Ms. A-B- likely thought she was safe after this arduous journey of about five years. That was until the Attorney-General decided to get involved this past March. At that time, he referred her case to himself for review. He then reversed the decision of the Board and sent Ms A-B-‘s case back to the immigration judge. Not only did he remand the case, but he spent more than 30-pages essentially demanding that all those officers under his authority apply a very restrictive interpretation of the law. While the bulk of the anti-asylum-seeker rhetoric in the decision is obiter dicta, the mere fact that it was expressed by their boss is likely to scare some immigration judges into rejecting more asylum-seekers with overly restrictive interpretations of the law.
Every official that dealt with Ms A-B-‘s case to date has been an official in the Executive branch of the U.S. government. Ms A-B- has not had a day in court with a judge who is impartial and independent and not part of the Executive branch of government, but instead part of the judicial branch of government. She will only get such a day-in-court when the B.I.A. finally decides her appeal under the new interpretations established by the Attorney-General. At that point the law grants her the right to seek a limited judicial review before the Court of Appeals, but she might already be deported back to the country where she feared persecution and against be subjected to that persecution.
Indeed, the immigration process itself seems to be a serious cause for concern. In the immigration context, the initial determination of facts and law in relation to foreign nationals is made by a series of administrative officials who are all part of the same Executive branch of government. The Immigration and Nationality Act, subsection 287, 8 U.S.C. 1357, notes that all of the immigration officials are persons under the authority of the Department of Justice.
Other federal officials who deal with migrants are employees of Homeland Security, under the Act of the same name, Act of 2002, Pl 107-296, title IV, subtitle C-F, 116 Stat. 2135, 2177-2212 (Nov. 25, 2002), that notes that Immigration and Customs Enforcement officials are persons under the authority of the Department of Homeland Security. Homeland Security, includes the Immigration and Customs Enforcement office, known as I.C.E., whose employees or contractors have been known to mistreat, lie to, and provide false information to asylum-seekers.
Even if they are not mistreated to the extent of being denied access to a fair process, the processes to which asylum seekers have access are constructed out of a maze of laws, regulations, and policies that are among the most complex in the American legal system. Therefore, merely denying asylum-seekers to attorneys is enough to serious prejudice any chance they have to express their well-founded fear in a manner that meets the increasingly complex demands of the law.
To many lawyers these processes and the denial or limits on legal representation fly in the face of due process or the right to a fair trial that is guaranteed by the Constitution and numerous human rights treaties that the U.S. has ratified.
A general principle of due process is that one is entitled to an independent and impartial determination of his or her rights. This usually means that one must be brought before a judge who has not previously had any dealings with the person’s case. While administrative judges may satisfy the requirements of U.S. law, it is unlikely that they meet the international standards that the U.S. has agreed to apply. When they do not it makes little difference if it is a border control patrol official, an immigration judge, a B.I.A. adjudicator or the Attorney-General himself who interferes with an asylum-seekers right to seek and receive asylum. Any of these actors will incur the responsibility of the U.S. for an internationally wrongful act.
Perhaps however it is most important to remember that for most asylum-seekers the nuances of the law are more than merely issues for legal debate. They are often matters of life and death. For asylum-seekers coming to America, until U.S. immigration law is both fashioned and applied in a humane manner, the U.S. acts without respect for fundamental human rights. This implicates the underlying values of American society and hurts America’s reputation in the world.
These Executive branch interferences with the fundamental human rights of foreigners coming to America are only likely to increase. This is in no small part due to the U.S. Supreme Court narrow 5-4 decision in Trump v. Hawaii issued on June 26, 2018, that allows the President largely unbridled discretion over U.S. immigration policy. The Court was unfettered by the restraints of international law requiring due process and prohibiting discrimination. Despite being confronted with multiple constitutional challenges with enough merit to have been upheld, at least in part, by several Courts of Appeals, the Court decided that it should undertake its weakest form of judicial review. This form of review is called ‘rationale basis review’ whereby the government merely has to show that their action is rationally related to a legitimate end.
Ironically, the Supreme Court may have unwittingly exposed how the current administration will treat immigrants going forward. It did this by criticizing the notorious case of Korematsu v. United States, 323 U. S. 214 (1944), that had upheld the discriminatory internment of Japanese in America calling it “morally repugnant” and “gravely wrong,” while at the same time holding that the President enjoys broad discretion to deal with immigrants. In this broad discretion, the Court found that the President’s mere claims of security concerns were “a sufficient national security justification to survive rational basis review.”
In effect the Supreme Court has erected a “No Immigrants Need Apply” sign at the U.S. border. If you are migrant coming to the United States from a country whose nationals the President feels are dangerous, then you can’t enter the United States. This is indeed an odd message from a country that was built from the blood and sweat of immigrants.