A response to Rep. John Kavanagh

One of Arizona’s most anti-immigrant nativist legislators and prolific Trump troll, Rep. John Kavanagh, recently posted this comment on this blog:

The only people being deported under this operation are those who have court ordered deportations. They either had their day in court and lost or absconded and never showed up in court, as they promised to do. We are not talking about people who have made refugee claims that are being processed or non-refugee illegals (undocumenteds) who can appeal deportation.

If we cannot deport those that our court system says it is legal to deport, then who gets deported? Do we just ignore our immigration laws and due process procedures?

Many conservatives accuse Democrats, at least the left wing of the party, of favoring open-borders. Not deporting those who have legal deportation orders is tantamount to having open borders.

Let’s break this down.

According to press reports, the ICE raids would target at least 2,000 immigrants who have been ordered deported and crossed the border recently. Each of these 2,000 individuals has unique circumstances to their status, and it is simply ignorant to generalize that “They either had their day in court and lost or absconded and never showed up in court, as they promised to do.”

And yes, they do have appeal rights (for a non-citizen who has an enforceable order of removal, the execution of the order may be suspended through a request for an administrative stay with the Enforcement and Removal Operation “ERO” office of ICE).

Clearly our Trump troll has no idea whatsoever of the unique circumstances of each case. He makes a baseless assumption that all of these migrants have received due process (and believe me, he really does not care whether they have received due process).

As The Guardian reports, Immigration raids to take place across US starting Sunday:

Among the myriad concerns raised by advocates is that some people ordered deported may never have received notices to appear in court. Trump often accuses migrants of deliberately ignoring notices, but in the past year, attorneys have complained that documents were sent to incorrect addresses or listed incorrect hearing dates and times, including midnight, when court is not in session, and 31 November, which doesn’t exist.

The US government could therefore arrest migrants who didn’t know they were due in court, which would allow the arrested to reopen their cases, if they found an attorney.

The Trump administration has recently worsened this situation. Trump administration ending in-person interpreters at immigrants’ first hearings:

The Trump administration is preparing to replace in-court interpreters at initial immigration court hearings with videos informing asylum seekers and other immigrants facing deportation of their rights, The Chronicle has learned.

The administration portrays the change as a cost-saving measure for an immigration court system bogged down under a growing backlog. But advocates for immigrants are concerned the new procedure could jeopardize their due-process rights, add confusion and potentially make the system less efficient by causing more of them to go underground or appeal cases.

Under the new plan, which the Justice Department told judges could be rolled out by mid-July, a video recorded in multiple languages would play, informing immigrants of their rights and the course of the proceedings. But after that, if immigrants have questions, want to say something to the judge or if the judge wants to confirm they understand, no interpreter would be provided.

Many of the immigrants come from Central America, but collectively they speak a diverse range of indigenous languages and sometimes don’t know Spanish.

The shift would especially affect immigrants who do not have attorneys to explain proceedings. Many immigrants lack representation at the initial hearing, and legal services around the country say they are being stretched thin. The government does not provide attorneys.

Instead of turning to an in-court interpreter, judges would have to rely on any who happen to be in the building for other purposes, or call a telephone service for on-demand translation that judges say can be woefully inadequate or substantially delayed.

“It’s a disaster in the making,” one judge said, speaking on condition of anonymity because the person did not have Justice Department approval to talk publicly. “What if you have an individual that speaks an indigenous language and has no education and is completely illiterate? You think showing them a video is going to completely inform them of their rights? How are they supposed to ask questions of the judge?”

Matthew Bourke, an Ice spokesman, told The Guardian the agency could not provide specific details related to enforcement operations, to protect the safety and security of agents. “All of those in violation of the immigration laws may be subject to immigration arrest, detention and – if found removable by final order – removal from the United States,” Bourke said.

The American Civil Liberties Union (ACLU) filed a pre-emptive lawsuit on Thursday arguing that targeted families should be allowed a day in court, in part because of the immigration enforcement agencies’ documented bureaucratic errors.

The New York ACLU and ACLU of Southern California filed the 44-page lawsuit on behalf of four not-for-profits.

The Washington Post adds, Why Trump’s ICE raids might deport people who weren’t given a chance to stay legally:

There’s a lot of misinformation and misunderstanding about the targets of these raids and the undocumented immigrant population more broadly. Most important is who is being targeted and why.

The raids are reported to be targeting 2,000 people scheduled for deportation but could include more people than that. Most of those reported to be targeted have recently arrived in the United States.

The Times report indicates that the focus of the weekend’s raids will be 2,000 people — including children — who had been ordered to be deported. In doing so, “authorities might detain immigrants who happened to be on the scene, even though they were not targets of the raids,” Caitlin Dickerson and Zolan Kanno-Youngs report.

In other words “collateral” deportations, individuals who have never had any due process or been adjudicated by any court, they just happen to be in the presence of the targeted individual.

By the way, under the Trump administration Immigrant toddlers are ordered to appear in court alone: “immigrant children as young as 3 are being ordered into court for their own deportation proceedings, according to attorneys in Texas, California and Washington, D.C.” This is indefensible.

But Rep. Kavanagh would have no problem with a 3 year old toddler who has been separated from her parents under Trump’s intentionally cruel child separation policy having to appear in court for her own deportation proceeding without a lawyer or an interpreter. If he did care, he would have proposed legislation to address this indefensible problem by now.

Those who will be the focus of the raids are people whose immigration proceedings were expedited by the administration in September, meaning that they’re relatively new arrivals to the country. That’s particularly true in the broader context of unauthorized immigration in the United States. About two-thirds of immigrants in the country illegally have been in the country for at least 10 years, according to Pew Research Center, compared with about a fifth who have been in the United States for five years or less.

The deportation orders include people who missed court hearings — that they may not have known about.

Some of those slated for deportation have been targeted for not having attended required court hearings. In some cases, though, the immigrants may not have known they were supposed to.

That those targeted in these raids were part of the expedited process introduced last year is important. David Leopold, an immigration attorney who served as general counsel for the American Immigration Lawyers Association, explained why in an email to The Washington Post:

“Of the group of immigrants with deportation orders there are serious due process concerns because they either didn’t get notice of the hearings or the hearings were held in absentia or were not held at all,” Leopold wrote. In other words, many of them “did not have their day in court.”

He referred to a report from Syracuse University’s TRAC program, which analyzes immigration-related data including the outcomes of hearings for family groups included in the expedited process. Of those with legal representation, 99.9 percent attended their initial hearings. Among those without legal representation, that figure fell to 81.6 percent. Those who don’t attend a hearing are flagged for deportation.

But that poses a problem.

“Under our current system, there is no legal requirement that immigrants actually receive notice, let alone timely notice, of their hearing,” the TRAC report reads. Some immigrants, it indicates, “may receive a written notice, but the notice may have been in English, which they couldn’t read.” Others may not have complete address information to be contacted for a hearing.

That works in the other direction, too.

“The Border Patrol states that it is quickly releasing families directly ‘with notices to appear in immigration court,’” the report reads. ”While families may have been handed notices to appear, these notices are unlikely to contain the actual location and time for their court hearing since such details will not yet have been determined.”

On some occasions, TRAC found, no hearing was scheduled at all — but immigrant families were still marked as having not attended.

These facts blow away Rep. Kavavanagh’s baseless assumption that “They either had their day in court and lost or absconded and never showed up in court, as they promised to do.”

Unfortunately for those immigrants, there’s not much recourse, Leopold explained. Unless there are exceptional circumstances that prevented their appearance or they can document that they gave the government a correct address but still didn’t receive notice, an order can’t be reopened.

Immigrants who have recently arrived in the country and are here illegally have in recent years been more likely to be Asian than Hispanic and mostly overstayed visas.

It’s worth noting that a focus on immigrants who have crossed the border into the United States without documentation or who have come into the United States across the Mexican border seeking asylum doesn’t address the most common new arrivals in the unauthorized immigrants population in recent years.

Pew analysis finds that in most years over the past decade, there have been more Asian than Hispanic immigrants who arrive in the United States and stay without documentation. That has probably shifted given the recent increase in arrivals at the southern border, but in 2017, for each Hispanic who came into the country without authorization, 1.4 people of Asian descent did.

Most of those immigrants probably arrived on valid visas but didn’t leave once the visas expired. Among immigrants from Mexico and the Central American countries of El Salvador, Guatemala and Honduras, this was less likely.

It should be noted here that overstaying a valid visa obviates the utility and effectiveness of Trump’s medieval vanity project to build a “big beautiful wall” on the Mexico border. Most “illegal” immigrants have arrived here in our nation’s airports. The wall is a boondoggle and immense waste of taxpayer money that does begin to address the actual problem.

Then there is the Trump administration’s illegal “remain in Mexico” asylum policy. Asylum officers ask court to block Trump’s “Remain in Mexico” policy in surprising filing:

The labor union representing thousands of asylum officers, Local 1924, filed the extraordinary court filing siding with plaintiffs seeking to prevent the Department of Homeland Security (DHS) from implementing the so-called “Remain in Mexico” program. Under the policy, officially called the Migrant Protection Protocols (MPP), migrants who claim asylum at U.S. ports of entry along the southern border are required to wait in Mexico while their cases are adjudicated in American immigration courts.

In the filing to the Ninth Circuit Court of Appeals — which is reviewing the legal challenge to “Remain in Mexico” brought by the American Civil Liberties Union (ACLU) and other plaintiffs — the union of asylum officers said the program violates U.S. and international law because it places asylum seekers in dangerous circumstances.

“By forcing a vulnerable population to return to a hostile territory where they are likely to face persecution, the MPP abandons our tradition of providing a safe haven to the persecuted and –– violates our international and domestic legal obligations,” the amicus brief read.

Asylum officers, the filing argued, “should not be forced to honor departmental directives that are fundamentally contrary to the moral fabric of our Nation.”

Human Rights First FACT CHECK: Asylum Seekers Regularly Attend Immigration Court Hearings:

Recent data shows that asylum seekers continue to appear for immigration court proceedings at high rates. In fiscal year 2018, Department of Justice (DOJ) figures show that 89 percent of all asylum applicants attended their final court hearing to receive a decision on their application. When families and unaccompanied children have access to legal representation, the rate of compliance with immigration court obligations is nearly 98 percent.

Despite statistics showing that asylum seekers appear in immigration court at high rates, President Trump Administration has repeatedly falsely claimed that only 3 percent of asylum seekers and 2 percent of immigrants attend immigration court. Secretary of Homeland Security Kirstjen Nielsen stated that asylum seekers “more than not” fail to appear in immigration court.

The Trump Administration erroneously claims asylum seekers skip court hearings in an attempt to further their deceptive narrative of the asylum system as a “loophole” exploited by individuals with meritless claims to enter the United States and “disappear into the economy.” Indeed, the administration’s so-called Migration Protection Protocols plan, also known as ‘Remain in Mexico,’ is premised upon the idea that asylum seekers do not show up to court. These false claims ignore the political repression and violence that forces people to flee their countries amidst the world’s worst refugee crisis.

Which brings me to the knee-jerk reactionary primal scream of every anti-immigrant white nationalist racist who says in response to concerns raised over the mistreatment and abuse of migrants in ICE detention facilities: “open borders!” It’s like Tourettes syndrome.

I am not aware of any elected Democrats who have advocated for “open borders.” What they have advocated for is effective high-tech border security, not Trump’s medieval vanity project of a “big beautiful wall” on the Mexico border; comprehensive immigration reform, which has been blocked by Republicans in Congress for years (because they would rather have the immigrant boogeyman to campaign on with their anti-immigrant white nationalist base); and a “Marshall Plan” for Central America that addresses economic, political, environmental and law enforcement needs to restore stability to these countries in order to reduce the outflow of desperate migrants.

I am not aware that Rep. Kavanagh has recently expressed any concerns for the health, safety or welfare of migrants being held in migrant detention facilities — many of these facilities operated by private prison companies, his campaign contributors — in particular the children who have been separated from their families under Trump’s intentionally cruel child separation policy. Or the recent report of sexual abuse of minors and retaliation against detainees in Yuma. Where is the demand for an immediate investigation? Where is the humanity and basic human decency and compassion?