ON CASE – no solvency, several reasons
a. People seeking asylum are turned away
Lind 18
6/15 (Vox Senior rep orter with journalis m degre e, “Trump kee ps making it harder for people to seek asylum legally, https:/ /www.vox. com/ policy -and -politics/2 018/ 6/5/1 7428 640/ border -fa milies -asyl um -illegal)
some immigrants who try to seek asylum
are being turned away and told there’s no room for them now. And agents are
physically blocking some asylum seekers from setting foot on US soil
a group of Guatemalans
at the official US port of entry,
was stopped by CBP agents and asked for identification, and then told that
there wasn’t room at the port of entry to process asylum claims.
The Trump admi nistr ation j ustifi es i ts “z ero tol eranc e” polic y of pr osecuting ever yone who cr oss es i nto the US illegall y — i ncluding as yl um-seeki ng parents who are separated fr om their chil dren by bei ng pl ac ed in crimi nal j ails — by s aying that peopl e who want as yl um s houl d s eek it the “right way” : by pres enting thems el ves at an official port of entr y i nto the U S (li ke an offici al road c hec kpoi nt at the U S-Mexi co border) rather than c omi ng int o the c ountr y illegall y between c hec kpoi nts . But
the “right way”
there’s evi denc e that border
— in other words, fr om triggering a l egal right to cl aim as yl um i n the U S
Moor e ( writing for T exas M onthl y) wi tness ed
to begin wi th. Over the weekend, j our nalist Robert
on the other side of the bridg e, where C ustoms and Border Protec tion (CBP) offici als c hec k the papers of people entering the c ountr y. But at the top o f the bri dge — right where M exic an territor y
try to cross the bridge that connects Ci udad J uar ez i n M exic o to El Pas o, Texas . T hey ai med to pres ent themsel ves
ends and US territor y begins — the gr oup
Ultimatel y, three of the Guatemalans, who had pr oceeded a few steps into U S territor y, were all owed to g o through to the por
b. Asylum solvency fails – refugees lack lawyers, which
makes asylum impossible
Harris 18 –
professor of law at th e Un iver sit y of the District of Colu mbia [Li nds ay, T he Was hington Pos t, Seeki ng as yl um is n't a cri me. Why does Trump tr eat it as one?, 7/1/18, Proques t 7/12/18]//dc h en
asylum seekers must present their case before an immigration judge and
face an experienced prosecutor on the other side. An asylum seeker will probably
wait several years for that day in court,
. Most of the applicants won't have
lawyers: Immigrants in detention are represented only 14 percent of the time ,
The credibl e-fear i nter view is onl y the first s tep for
. Next, they
given the bac klog of mor e than 700,000 c as es pending befor e the approxi matel y 350 i mmigrati on judges
and over all onl y 37 perc ent of i mmigrants have repres entation i n
their legal cas es . Al thoug h as yl um grant r ates var y wildl y
c. Alt causes circumvent asylum guarantees—trauma
symptoms, backlog, judge bias and inexperience,
unreliable interview
Mosley 18
(Al ana, .D. Candidate 2018, U ni versi ty of Mi nnes ota Law Sc hool , “Re- Victi mization and the As yl um Pr oc ess: Ji minez F erreira v. Lunc h: R e-As ses sing the Weig ht Plac ed on Credibl e F ear Inter vi ews i n D etermi ning Cr edi bility,” 36 Law & Ineq. 315 ( 2018))//jjh VI. Anal ysis of the Ji menez F erreira v. Lynch Decision
Asylum seekers often arrive with little to no corroborating evidence to support
their asylum petition.87
Judges use factors such as
demeanor, candor, and the internal consistency of each statement to determine
an applicant's credibility.
a shifting narrative
may very well be an applicant's attempt to grapple with the extent of the trauma
they have suffered, and thus, they may still be trying to reconcile their situation
for themselves.
applicants must also persuade outsiders that they can, and
should, be believed.
the focus is not actually on the facts of the case, but instead
the applicant's unwavering consistency in relaying traumatic details.
Therefor e, their narrati ve of the traumatic event, or events, is often their mai n evi denc e of the past pers ec uti on that they have s uffer ed. H owever, in Ms . Ji menez's c as e, she provi ded " over 400 pag es of doc umentar y evidence" with her petition for as yl um, i nc ludi ng the police complai nt from her 2007 s exual ass aul t, a doctor's report, and a ps yc hol ogist's report.8 8 T he doctor's repor t stated that Ms . Ji menez had ' visi ble signs and mar ks of a str angul ati on attempt' and a 'tor n inner and outer l abi a of the vagina, evi denci ng penetrati on by forc e or with r esistance on the part of the victi m."' 89 Si milarl y, the ps ychologist's report menti oned that s he s howed "signs and s ymptoms of tensi on, worry, fear for her life and the li ves of her family[,]" and rec omm ended that Ms.
Jimenez ' be referred i mmedi atel y to group ther apy' to 'help her overc ome the trauma."' 90 D es pite havi ng material evi denc e th at corroborated her story, Ms . Ji menez's testi mony was s till not acc epted as credibl e
This is a reality that many as yl um s eekers face. D es pite their best efforts, their tr aumatic experiences " may not be acc uratel y legiti mated and acc epted by outsiders," s uc h as as yl um offic ers or i mmigration j udg es. 91 One must consi der whether it is pos sibl e to effec ti vel y judge the cr edi bility of a person c oping with trauma wi thi n an advers arial s ystem.
92 However, these factors c an be poor g aug es when c onsidering the diffic ulty many s ur vi vors of abus e or pers ec ution have in artic ulating a linear narrati ve that effecti vel y s ummariz es their experienc es. 93 Simil arl y, the applicant may feel s hame or embarras s ment i n discl osing the abus e they s uffer ed.94 M S. Jimenez pers onall y felt this : s he testifi ed "that s he was ashamed and 'embarras sed' to disc uss H olguin's abuse."95 Simil arl y,
In addition to having to ac cept the facts of their cl ai m for themsel ves,
As pr eviously menti oned, the i mpact of past tr auma can affec t a s ur vi vor's c onduct and memor y. 96 Whil e in detention, Ms. Jimenez di d not i mmedi atel y di sclos e to her detai ning offic ers that she feared havi ng to r eturn to the Domi nican R epublic, " becaus e s he was ner vous, afr aid and as hamed to tell the male offic er conducting the i nter view about her ex-hus band's abuse."97 U pon expres sing her fear of r eturni ng, s he was given a credi ble fear i ntervi ew.98 "Ms. Ji menez was c onfused and ner vous during her cr edi ble fear i nter view, and embarrass ed to b e telling the inti mate details of her r elations hip wi th Holgui n to a complete stranger and an unknown telephonic i nterpreter." 99 H owever, des pite thes e barriers, the as yl um offic er found Ms . Ji menez to have a credibl e fear of pers ec uti on
and, thus , s he was rel eased. 100 In c ontras t, the i mmigrati on j udge was not si milarl y persuaded and found Ms. Jimenez incr edi ble bas ed on "glari ng inc onsistencies ."101 The is sue with the c urrent state of deter mini ng cr edi bility within the immigrati on c ourt s etti ng is that
102 Note that in Ji menez, the i mmigrati on judge overlooked the medical r eport, whic h noted the i njuri es Ms . Ji menez s uffer ed due to the 2007 C hristmas Eve attac k 03 and
instead foc us ed on her ti meli ne of those events-i.e., whether Mr. H olguin beat and r aped her before or after the party on C hristmas Eve.104 T hus, the i mmigrati on judge place d the emphasis on the ti me of the attac k, rather than the actual attac k. The pers ec uti on suffered was the attac k itsel f, whic h c oul d be c orroborated with the medical r eport, ps yc hol ogist's report, and police complai nt. The tec hnical issues should not be c ompl etel y ignored, bec aus e finding material i nconsis tencies may be a sign of a fraudulent as ylum clai m. At the same time, minor technic al iss ues s hould not be the basis of an i mmigration j udge's deter mination, es peciall y where corr oborating evidence exi sts. The Fi fth Amendment guarantees as yl um s eekers, and mor e generall y " person[s ],"1O5 a due proc ess "right to have a clai m hear d by a neutr al, i mpartial ar biter."106 T he importanc e of i mparti ality i s reaffir med in the Ethics and Pr ofessionalism Guide for Immigration J udges, whic h s tates that j udges s hould perfor m their r es ponsibiliti es wi thout s howi ng prejudic e.10 7 However,
seeker's fate will be greatly impacted by which judge presides over his or her
case, as well as the region of the United States where the case is heard.
there are
also disparities in denial rates within jurisdictions that make judicial bias, political
sway, and general inexperience more likely culprits.
1 "[a]bout half of the judges appointed in [the] 2004-2007
period had no experience with immigration law."
an as yl um
108 While the nati onal average as yl um grant rate was 48% i n 2015, many regi ons had much lower grant r ates: Atl anta, Georgia (2%),
Las Vegas , N evada (7%), D allas , T exas (9%), H ouston, T exas (9%), C harlotte, North C aroli na (13%), and Detroit, Mic higan (14%).109 Si milarl y, the U nited States Government Accountability Office (GAO) noted sig nificant vari ati ons in as yl um outc omes dependi ng on the court's region and the judge hearing the c as e.110 For i nstance, " affir mati ve applicants in San Francisc o were .. . 12 ti mes mor e li kel y than thos e i n Atlanta to be granted as yl um." 111 Some bl ame judicial bias and the rol e of politics i n appointi ng i mmigration j udg es;112 others bl ame a bac klogged and br oken s ystem.113 " Weighed down by a bac kl og of more than 520,000 c as es, the United States i mmigration courts are foundering, incr easingl y failing to deli ver timel y, fair decisi ons to peopl e fighting deportation or as ki ng for refuge.. . ." 4 T his over whel ming c as e load als o undermi nes the gravity of the decisi ons that i mmigration j udges are being as ked to make. 115 The years of waiting i njur e as ylum s eekers becaus e they fac e the r eality that their evi denc e may become s tal e and their
memor y of past events will dec ay. F or Ms . Ji menez, her hearing occ urred in 2013, but many of the relevant events that she was expected to rel ay i n detail occ urred between 2007 and 2009.116 T her e was an expectati on that M s. Ji menez be able to remember and artic ulate, in a linear narrati ve, s pecific details of events that had happened nearl y four to si x years pri or.117 In her case, the immigration j udge was c oncer ned about discr epancies as to details, such as what ti me of day s he was raped on Chris tmas Eve i n 2007, the exact date s he was last r aped, the l oc ati on she was l ast raped, and whether Mr . H olguin had hit her son.118 T here ar e gener al iss ues c onfronting a sur vi vor's ability to artic ulate a linear narrati ve reg ardi ng traumatic events, but thes e iss ues may also be c ompounded by the long length of ti me it takes to g et a hearing. Asi de fr om the pr obl ems cr eated by the bac kl og of c ases ,
For instance, i n J ul y 2006, Tr ansac tional Rec ords Access Cl earing hous e, a r es earc h organiz ati on associated with Syrac us e U ni versity, r eleas ed a study s tating that C hines e i mmigrants make up al most twenty- two percent of as ylum seekers i n the Uni ted States.119 T he s tudy found that in N ew Yor k there was a grave dis parity in the grant rates for Chi nese as yl ees r epr esented by
lawyers- one j udg e denied al most s even perc ent of petitions, whil e another denied ninety-four perc ent. 120 Circ uit c ourts have questi oned t he s kill and temper ament of s ome i mmigrati on judges , mainl y thos e who have been repeatedl y appeal ed.
21 Note that
122 The pur pose of the credibl e fear inter vi ew is to "identify potentiall y meritori ous clai ms to protecti on." 1 23 Si milarl y, USCIS trai ning materi als describe the credibl e fear inter vi ew as si mpl y a "scr eening proces s,"1 24 yet in Ms. Ji menez's cas e, the notes from her credibl e fear inter vi ew hel d s ubstantial weight before the i mmigrati on judge.125 T he i nc onsistenci es between thes e notes and the applicant's tes timon y often s er ve as the
basis for adverse credibility fi ndi ngs without muc h c onc ern about the r eliability of thos e notes .126 In Ji menez , the Seventh Circuit found that Ms. Ji menez had c onsistentl y maintai ned that Mr. Holg uin r aped her on C hristmas Eve and tha t the medic al report c orrobor ated her clai m.127 Thus, the possi ble discr epancies-r egardi ng the pr ecis e ti me of day that the vi olenc e occ urred- between the inter vi ew notes and Ms. Ji menez's testi mony, as yl um application, and corr oborati ng evidence was found to be a tri vial discr epanc y for the i mmigrati on judge to us e as the basis for an adverse credibility findi ng. 1 28 M ore than that, the Seventh Circuit was conc erned by how muc h weight was pl ac ed on Ms . Ji menez's cr edi ble fear i nter view, since it was not a verbati m transcript, and becaus e it s hould not have been given more weight than all of the s upporting 129 evi denc e s he provi ded. Courts should q ues tion the r eliability of cr edi ble fear i nter view notes due to the nature of those i nter views. 130 T he as yl um o ffic er's notes are the onl y r ecor d of the i nter view. 131 A
verbati m transcript woul d provi de a judge with more insight i nto the nat ure of the questi ons and ans wers, rather than a si mple s ummar y of the di alogue. 132 Si mil arly, a verbati m tr anscript woul d all ow the j udge to s ee whether the as yl um officer as ked rel evant follow- up questions to s eek mor e details and infor mation fr om the ap plicant. 133 F or i nstanc e, Ms. Jimenez's res pons es to some of the as yl um offic er's questi ons gi ve the i mpres sion that s he either " did not understand [the] questi on[] .. . or that the inter pretati on was uncl ear to her." 134
If the notes ar e onl y a summar y, then the judge has no way of knowing whether the applic ant's ans wers were evasi ve and vague, or whether the as ylum offic er failed to as k the appr opri ate follow- up questions to gai n more i nsight into, and details from, the applic ant's stor y. 135 Mor eover, a verbati m r ec ord would allow the judge to interpr et the nature of the interaction between the offic er and the applic ant. F or e xample, the applicant may indic ate rel uctance in ter ms of tal king to g overnment offici als bas ed on
neg ati ve experienc es i n his or her homeland. In M s. Ji menez's c as e, she had filed a c ompl aint with the polic e i n the D omi nic an Republic, and bas ed on this , Mr. H olgui n was arrested- but he was r eleas ed from jail four days later.136 M s. Ji menez had voiced a distr ust of law enforcement i n the D ominic an Republic .137 Thus , it would not be diffic ult to understand that s he may si milarl y have been r eluc tant to s peak to the U nited States as ylum officer 138 regar ding a topic as s ensiti ve as past physical and s exual abus e. In gener al, thes e f actors c ome down to verifyi ng that the as yl um offic er's notes s er ve as a reli abl e r ecor d of the cr edi ble fear i nter view and, thus, a reliable tool to use i n determi ning an applicant's overall cr edi bility. T his appr oach seems to look at decisions bas ed pri maril y on cr edi ble fear i nter view notes as bei ng a red flag, therefor e, the Seventh Circ uit s tress es the i mpor tanc e of ass essi ng the r eliability of thes e notes befor e using them as the basis for an advers e cr edi bility determi nation. 139
d. Asylees won’t get a fair trial anyways – immigration judges
are hired by Sessions and have anti-immigrant sentiments
Guardian journ alist,
[T om, 6/16/18, Guardi an, “Jeff Sessions acc us ed of politic al bias in hiring i mmigrati on judges”, https://www.theguar news /2018/jun/16/jeff-ses sions-politic al-bi as-hiring-i mmigration-judges, accessed 6/30/18, MC]
The Trump administration has been accused of illegally rejecting potential
immigration judges for being too liberal,
The attorney general has the power to hire and fire immigration judges and
make unilateral rulings
immigration courts are vulnerable to
politicization by a White House with an overt hostility towards many classes of
introduced an annual quota of at least 700 completed cases per judge in order for
their performance to be graded “satisfactory” – which will put pressure on them
to rush through complex cases, as asylum claims often are.Nevertheless, the
candidates were being rejected “based on their perceived political or
ideological views”, which they interpreted as implying they were not conservative
amid outr age over families being forci bl y s eparated at the southern U S bor der and a hars h crac kdown on migrants s eeki ng as ylu m. T he all egati ons of politiciz ed hiring pr actic es come as the attorney general , J eff Sessi ons, has iss ued a decision that will bar mos t victi ms of gangs or domestic vi ol ence from s ecuri ng as yl um i n the U S. As c haos c ontinues at the M exican border over Tr ump’s polic y of “zero toler anc e” agai nst anyone enteri ng the U S unlawfull y, Sessi on has underlined his power over a quasi-judicial i mmigrati on s ys tem
that affec ts millions.
such as the one he announc ed las t M onday, whic h hol ds that thos e who cros s the bor der illeg all y s eeki ng s anctuar y as victi ms of “pri vate crimi nal acti vity”, as oppos ed t o s tate-s ancti oned pers ecution, will not g enerall y q ualify for as ylum.Critics now worr y that
Four D emocr atic members of Congress wrote to Sessi ons in April expressing c oncer n after whistl ebl ower alleg ati ons that the De partment of J ustic e “ may be usi ng ideol ogical and political consi der ati ons to i mpr operl y – and ill egall y – bloc k the hiring of immigration judges and members of the Boar d of Immigration Appeals”. The Tr ump adminis trati on has made incr easing the number of immigration j udges a priority in or der to deal with a huge pile- up of c as es. Currentl y about 350 j udges in 60 U S c ourts are tas ked wi th handling a r ec ord bac klog of mor e than 714,000 c ases, acc ordi ng to Syrac us e U ni versity’ s Trac database. T hat is an incr ease of mor e than 171,000 c as es si nce D onal d Trump took office in Januar y 2017. The problem is s o acute that
Democr atic l awmakers found evi denc e of unusual
del ays i n the hiring pr oc ess, and cited all egati ons that
The clai ms evoke a sc andal fr om 2008, when a g overnment report found evidence of politic al hiring in the Depar tment of Justic e during the George W Bus h presi denc y, with aides appointing i mmigration j udg es and prosec utors with cons er vati ve views on topi cs suc h as aborti on and s ame-s ex marriage.
a. Alt cause and turn – language and cultural barriers means
immigrants coming to the United States still face a high risk
of abusive relationships AND lack of access to welfare
programs for immigrants in the United States creates
dependency on abusers
Quast 6/24/18
(Shawna, B.A., Internati onal Studi es and Political Sci ence, R hodes C ollege, 2012; J.D. C andi date, Uni versity of Miss ouri Sc ho ol of Law, 2019, “TH E IM PACT OF DOM ESTIC VIOLENCE ON IMMIGR ANT WOMEN”, DePaul Journal of Women, Gender and the Law Volume 7 Spring 2018, Iss ue 2, Article 3, http://via.librar ewc ontent.cgi?arti cle=1043&c ontext=j wgl)KJR
Immigrant victims of domestic abuse often encounter language barriers,
which can discourage them from seeking help
they can also inhibit
victims from obtaining public assistance, employment, or otherwise establishing
independent financial security.
Immigrant persons, particularly
recent immigrants, often lack social contacts sufficient to motivate them to report
United States or seeking to adjust status
to that of an individual lawfully admitted for permanent residence (green card)” is
not permitted to acquire legal status if it is likely that she will become a public
A. Language Barriers and Social Isol ati on
in esc api ng their abus ers.26 N ot onl y do thes e l anguage barriers have the potential to isol ate vic tims fr om larger soci ety, but
27 Becaus e lac k of financial s ec urity is one of the l argest fac tors c ontri buting to abus e vi cti ms s tayi ng in abusi ve rel ations hips, it is i mportant that s er vic e provi ders employ bili ngual staff to better address immigrant popul ations.28
If the indi vi dual lac ks familial ties or friendshi ps i n the U.S., they ar e often more dependent on their abus ers, not onl y fi nanci all y, but 26 Dutton et al ., s upra note 6, at 254. 27 Id. 28 This a ssertion is made i n refer enc e to Spanis h-speaking i ndi vi duals. QU AST : TH E IM PAC T OF DOM EST IC VIOLENCE ON IMMIGR ANT WOMEN 86 D EPAUL J. WOMEN , GEN & LAW [Vol. VII: II als o s ociall y and emoti onall y.29 As with non-i mmigrant popul ati ons , inadeq uate social or emotional support incr eas es the li kelihood that batter ed women stay i n abusi ve r elati onshi ps. This is a partic ul arly difficul t factor to overcome, es peciall y i n r emote ar eas , as it is diffic ult to communic ate the pres ence of a c ommunity or support s ystem to a n unknown victi m.30 H owever , pr oper fundi ng for governmental and not-for-pr ofit organiz ations can i ncreas e visi bility within a c ommunity, and make appar ent s uch an organization’s pres ence for thos e seeking assis tanc e.31 B. C ultur e and R eligion
Cultur e and r eligion can play a rol e i n how and where i mmigrant, noni mmigrant, and undoc umented indi viduals s eek esc ape fr om domestic viol ence. Bec ause of the nature of s pirituality and religiosity within Latino culture, s ome victi ms tur n to “ healing arts” r ather tha n s eeki ng l egal or s oci al assistance.32 T her e is a stigma amongst some i n the Latino c ommunity surr oundi ng reporting abus e to police, or even discussing it with others; it is often vi ewed as a sourc e of s hame and dis honor for one’s s elf and one’s c ommunity.33 Such popul ations often 29 R achel Gonz alez Settlage, U niquel y Unhelpful: The U Vis a's Dis par ate Treatment of Immigrant Vic tims of D omestic Viol ence, 68 RU TGERS U. L. R EV. 1747, 1781 ( 2016) (stating that for some s ub-sets of the population, g eographi cal is olation is als o a fac tor i n non-repor ting; this is particul arl y tr ue with farmwor kers). 30 Robin L. Page, et. al, Empower ment in Lati na Immigrant Women R ecoveri ng from Inter pers onal Viol ence: A C onc ept Anal ysis , 28 J. TR AN SCULTUR AL NURSING 535, 537 ( 2017). See
id. at 534- 37 (describi ng an i nstance in whic h a Latina abus e vic tim escaped her abus er with the ai d of a bilingual nurse wh o i nfluenced her to go to a s helter, compar ed to an abused Latina who was unaware of her options, fearful of deportation, and isol ated). See generall y i d. ( suggesti ng that nurs es c an play a particul arl y us eful rol e in empowering Latinas suffering intimate partner vi olenc e to s eek esc ape). 31 See i d. 32 D utton et al., supra note 6, at 253. 33 Settlage, s upr a note 29, at 1781. D EP AUL J. WOMEN GEN & L. VOLUME 7, NUMBER II 2018] DEPAUL J. WOMEN , GEN & L. 87 perc ei ve dis clos ure as perpetuating unfavor abl e s ter eotypes about one’s c ulture, religion, nationality, or race.34 M any i mmigrants c ome from a staunc hl y patriarc hal cultural bac kground i n whic h gender rol es ar e strictl y adher ed to. In suc h situations , women often vi ew abus e as a nor mal occurr enc e or as a matt er of fate.35 Globall y, many cultur es do not view domes tic abus e as a cri me.36 While immigrant women freq uentl y adapt to new ideol ogies and s ocial
nor ms more quic kl y than men through the c ourse of assimil ati ng into U .S. c ultur e and cus tom, this c an read as a c ue to the abus er to exercis e greater c ontrol over the abused.37 F urther, in c ultures that emphasize the importanc e of particul ar attributes , li ke “looks, cooki ng ability, mothering, or s exual modes ty[,]” verbal and emotional abuse citi ng alleg ed i nadequaci es c an be particul arl y humiliating and dehumanizi ng.38 T his c an i ncreas e the s ourc e of s hame surr ounding domestic abuse, enhanc e the beli ef that the victi m is at faul t, and ulti matel y prevent her fr om s eeki ng refug e outside of the abusi ve r elatio nshi p. C. Acc ess to Public Benefi ts Prior to 1996, many public benefits wer e not availabl e to noni mmigrants , incl uding the Suppl emental N utriti onal Assistance Pr ogram (SN AP; for merl y “F ood Stamp Program”), Supplemental Sec urity Inc ome (SSI), and Temporar y Assis tanc e for N eedy F amilies (TANF).39 Even for thos e who immigrated l awfully, s eeking public assis tanc e c an be problematic for no n-naturalized citizens . “Under Secti on 212(a)(4) of
the Immigrati on and N ationality Act (INA), an i ndi vi dual s eeking admission to the 34 Id. 35 Anita R aj & J ay Sil ver man, Viol enc e Agai nst Immigrant Women: T he Rol e of Culture, C ontext, and Legal Immigrant S tatus on Inti mate Partner Vi olenc e, 8 VIOLENC E AGAINST WOM EN 367, 371 (2002). 36 Id. 37 Id. at 370. 38 Id. at 377. 39 T anya Br oder et al., Over view of Immigrant Eligibility for F ede QUAST: THE IM PACT OF D OMESTIC VIOLENC E ON IMM IGR ANT WOM EN 88 DEPAUL J. WOM EN, GEN & LAW [Vol. VII: II
This potential classification can prevent individuals from
seeking public assistance as it can adversely impact their ability to acquire legal
utilizing public benefits—especially
long term—can adversely impact legal status.
40 One can be deemed a “ public c harge” if it appears that one is “likel y to bec ome pri maril y dependent on the government for s ubsistenc e.” 41
By doing so, an i ndi vi dual can become “inadmissibl e,” meani ng that the government will neither grant admissi on to the U nited States, nor grant “ adj ustment of status” if already pr es ent.42 While the cl assific ati on as a “public charg e” does not appl y in the naturalization proc ess (meani ng if an indi vidual has lawful s tatus and is i n the proc ess of bec oming naturalized, this deter minati on will not be made), for noni mmigrant and undoc umented pers ons s eeki ng adj ustment in status,
43 F ortunatel y, some i ndi vi duals may be exempt, or eligibl e for a wai ver from s uc h a cl assific ati on. T his i ncludes people appl yi ng for “T vis as” and “U vi sas ,” as well as thos e i n po ssession of the s ame who ar e wor king to become per manent resi dents .44 Even with s uch excepti ons avail abl e, undoc umented indi viduals bear a unique burden in obtaini ng public benefits. Undocumented i mmigrants are not eligibl e for most
b. This becomes even more likely when you look at the
revictimization rates of domestic violence survivors
Neumann, J anic e. “ If a T eenager H as One Abusi ve R elations hip, It's Li kel y T hey'll Experienc e Another.” The W as hington Post , WP Company, 17 M ar. 2017, www.washi ngtonpost.c om/news/s olois h/wp/2017/03/17/if- a-teenager-has-one- abusi ve-rel ations hip-its-li kel y-theyll-experienc e-another/?utm_ter m=.f73958a00e57.
A study
found victims of dating violence were significantly more likely to
be re-victimized five years later compared to their non-victim counterparts with
other similar risk factors.
Repeat victimization or revictimization refers to the observation that “one
criminal victimization can be quickly followed by another, at a much higher rate
than chance factors can explain”
Similarly, the British Crime
Survey reported high rates of revictimization for domestic violence; more than
two-thirds of female victims of non-sexual domestic violence were revictimized
within a year
in the F ebruar y iss ue of J our nal of Adolesc ent H ealth
heteros exual
Those who were victi ms agai n, by the fi ve- year mar k, were als o mor e li kel y to be re- vic timiz ed by romantic partners 12 years later. (T he study used the N ati onal Longitudi nal Study of Adol esc ent to Adult Health, whic h as ked 2,161 Americans whether their partners had hurt them emoti onall y or physic all y at 12- to 18- years-old and then fi ve and 12 years l ater.) T een dating vi olenc e, whic h affects about 10 perc ent of high-sc hoolers , includes emoti onal, physic al or sexual vi olenc e. Ris k factors i ncludedepressi on, anxi ety, drug abus e, early s ex and vi olenc e at home or i n the s urrounding neighborhood and peer bull yi ng, accor di ng to r es earc h. Repeat victi miz ation is an i mpor tant is sue that has r ecei ved increasing attenti on
within victi molog y over the las t dec ades .
(Skogan 1999, p. 44). High r ates of repeat victi mization are reported for various cri mes, for i nstance commer cial burglar y ( 40%; Till ey 1993), sc hool yard bull ying ( 60–70%; Pitts and Smi th 1995) and sexual abus e (66% ; Classen et al. 2005).
(Walby and Allen 2004) . Vul ner ability to cri me thus appears to be distributed unevenl y; a s mall group in the popul ati on experiences a large pr opor ti on of all crime (F arrell 1992) . H owever, the devel opment of a thor ough theor y describi ng the underl ying mec hanis ms and links between ris k factors and r epeat vic timiz ati on still l ags behind. Victi mologic al theor y has tr aditi onall y focus ed on victi m-rel ated lifestyl e factors, incl udi ng pr oxi mity to the perpetr ator, ris k-taking behavior , and other opportunity factors, such as being away fr om home, to expl ain revicti miz ati on (e.g., Mieth e et al. 1987; Mustaine and T ewks bur y 1998; Samps on and Lauritsen 1990). T hese fac tors are partic ularl y us eful with reg ard to crimes li ke burglar y, but they appear i nsuffici ent in
Zapatistas K
a. Attempting to rescue those who have to flee their country
just forces them into an oversupplied labor pool for
capitalist exploitation
RaúL D elgado
Wise 13
(RaúL Delgado Wise, Profess or and Dir ector of D evel opment Studies at Uni versi dad Autónoma de Z ac atecas in Mexic o, 2-1-2013, "T he Migration and Labor Questi on Today: Imperialis m, Unequal D evel opment, and F orced Migrati on," M onthl y R evi ew, https ://monthl yrevi migration-and-labor-questi on-today-i mperi alism- unequal-development- and-forced- migration/, Accessed: 6- 26- 2018 /Kent Denver -YBJ L)
Migration has acquired a new role in the labor division of neoliberal
globalization. Mechanisms of unequal development produce structural
conditions, such as inequality, which catapult the massive migration of
dispossessed and marginalized people. Compelled by the need to have access to
opportunities for social mobility, large segments of the population are in
practice expelled from their territories to relocate within their own country or
Forced migration flows
move mainly from deprived
peripheral regions toward relatively more advanced areas in peripheral or core
economies; b) they primarily affect the vulnerable, poor, and marginalized, who
are barred in their place of origin from satisfying basic material and subjective
needs; c) they generate an oversupply of cheap and disorganized labor, exploited
by employers and corporations interested in keeping costs down; and d) they fuel
mechanisms of direct and indirect labor exportation, both among low- and highskilled workers.
Forced Migrati on Under the New International Di vision of Labor
unemployment and
means of subsis tenc e or at leas t mini mal
Labor overs uppl y and wors eni ng li ving c onditi ons turn migration, partic ularl y fr om peri pheral countries , into a form of forced dis plac ement.17
have four characteris tics: a) they take place on a national and inter national l evel, and
The number of migrants (mos t of whom come from peripher al regions) has incr eased over the last three-and- a-half decades, from 84 million i n 1975 to 215 million i n 2010. T he mai n fl ows ar e in a South-N orth dir ecti on (82 million), followed by South-South (74 million). T her e is als o a signi ficant conti ngent ( 750 million) of domes tic ( withi n the s ame c ountr y) migrants . T aken tog ether, thes e migrations have r es haped the l abor map and turned migrati on into a keys tone of the c apitalis t res truc turi ng pr ocess.18 Doc umented migrati on that fl ows i n a South-South dir ecti on, incl uding tr ansit migrati on at an i ntr anati onal l evel in peripher al c ountries, expos es migrants to c onditi ons of utmost vul ner ability. T hese migrants occ upy the lowest ec helons i n the dis pl acement dynamics gener ated by the pr ocesses of acc umul ati on by dis poss ession, that is, where
peas ants are forc ed fr om their lands . In li ne with the above consi der ati ons , it is possi ble to disting uish four types of forced migration: Migrati on due to vi olenc e, conflict, and c atas trophe. Smuggling and traffic king of pers ons . Migrati on due to disposs essi on, exclusion, and unempl oyment. Migrati on due to over -qualific ation and lac k of opportuniti es. T he first c ateg or y i nvol ves 43 million refug ees and inter nall y dis placed people; the second 2.45 million vi cti ms; the thir d, 72 million, not c ounti ng the b ul k of internal migrants; and the four th, 25.9 million.19
b. Neoliberalism empirically initiates policies which enforce
patriarchy. This will kill the critical intersection of
patriarchy and capitalism which is key to the dismantling of
Motta ’13
(Sara C., Seni or lectur er in politics at the Uni versity of N ewcastle in Austr alia, “’ We Ar e the Ones We H ave Been Waiti ng F or’ The F eminiz ati on of R esistance in Venez uel a,” Latin American Pers pecti ves, SagePub, 07/04/13, http://l ap.s agepub.c om/c ontent/earl y/2013/04/19/0094582X13485706 , SM)
. Although certain classbased groups were allowed in the party system, civil society remained under the
control of a male-led and male-dominated political culture and system,
“democratically excluding women from power”’
the key social subjects of this
pact were capital and labor, and the practices of politics were highly patriarchal,
reproducing a caste of men as the economic and political elite through a
corporatist system of tightly controlled union and sectoral movements. When
middle- and upper- class women did participate, it was
as political
men was identified
with power, rationality, and the public sphere of politics and the economy.
This system began to
disintegrate with the economic downturn initiated by Black Friday in 1983.
Poverty rates climbed, and by 1996 65 percent lived in poverty. The
implementation of neoliberal policies after 1989 reinforced the gendered nature of
inequality and exclusion
The women s ubj ects of this anal ysis ar e now all participants i n the urban land commi ttees and resi dents of La Vega, a s hantytown wi th a half c entury of histor y and a populati on of up to 250,000. Situated in the southwestern hills s urrounding the valley in whic h c entr al Car acas stands, La Veg a is paradigmatic of the conditions of exclusi onar y patriarc hal capitalist devel opment of the Punto Fijo period (1958–1998). The Punto Fijo pact between politic al elites of Acci ó n Democrá tica (Democratic Action) and the Partido Soci al Cristi ano de Venez uela (Venez uel an Soci al Christi an Party) mai ntai ned a for mal power - s haring democr ac y fuel ed by oil r ents t hat excl uded the politic al l eft
(Friedman, 1998: 90; Rantala, 2009: 6). T hus
by c onsig ning their housewor k to other women (such as thos e from La Vega), and they were often c onfi ned to tradi- ionall y feminiz ed rol es
(Carosio, 2007; Friedman, 1998: 115–128; R antal a, 2009: 25–36). T he rights that they won were often liberal bourgeois and excl uded the needs and demands of poor and blac k women (H uggins Castañ eda, 2010: 182–187). When women partici pated i n l eft- wi ng popul ar politics suc h as the g uerrilla movements of the 1960s and 1970s, their politic al prac tices often refl ected the g endered and patriarc hal nor ms of the Punto Fij o elites. A patriarchal political practic e was often mirrored i n the s ocial and c ultur al real m. H ere gendered c harac teristic s were cl early mar ked. M achis mo for
Women were r epr es ented as the c arriers of famil y and c ommunity, pl ayi ng their rol es i n the
domestic pri vate s phere through a desexualized and dependent artic ulati on of mother, daughter, and wi fe. Yet, as i n many other parts of Latin America, the nuclear famil y never took soci al r oot in wor ki ng - class ur ban c ommuniti es, and many poor ur ban families wer e headed by women r el ying on extended-family networ ks. As Gi ovanna Dall a C osta ( 1995: 96) notes, “the key figure in the famil y was the mother, who was the onl y r eal r eferenc e poi nt, whil e the father was an i nc ons tant and unpredictabl e fig ure.” Women- headed hous eholds, i nformal uni ons, and si ngle mother hood were c ommon, and s uc h hous eholds tended to be among the poor est even during the petrodoll ar boom of the 1970s.
of Venez uelans
and, i n Venezuela as elsewher e, res ulted i n a mar ked and incr easi ng feminiz ati on of poverty (Rantala, 2009: 6).
c. ¡Ya Basta! — Enough is enough. Our alternative is
solidarity with and participation in the Zapatista Army of
National Liberation.
d. At this junction, we note that the neoliberal economic
politics discipline all of our engagement towards Mexico.
Thus, we take this opportunity to affirm solidarity with the
Zapatistas, in favor of a different form of engagement, a
different pedagogy, beyond neoliberalism.
e. Zapatistas have won their war, freeing themselves from the
chains of capitalism, patriarchy, and domination. We must
follow their lead
HESS 2018
Hess, Shirin. “Zapatista Women Ins pire the Fight Agai nst Patriarc hy.” Truthout , Tr uthout, 7 May 2018, tr /zapati sta- women-ins pire-the- fight-ag ains t-patriarc hy/.
5,000 visitors from all over the world
The event was entirely
initiated by women of the EZLN
summoning all
women and children who were interested in the struggle to overcome
misogynistic culture.
Themes included gender violence, self-defense,
“Capitalism is not only colonial, it is also
patriarchal and racist,”
Young women have
grown up watching the Zapatistas evolve
educating themselves politically and
insisted that “another world is possible,”
within neoliberal and
.Two thousand indigenous Zapatista women from various parts of Chi apas state and
came to Car ac ol Mor elia, near the northeaster n town of Altamir ano, to hear what they had to s ay. Uni ting women
. They planned it from beginning to end, and made s ure ever yone who attended was alloc ated a sleepi ng pl ac e, had ac ces s to dr inki ng water and was cared for i n the c as e they fell sic k during the three days the event took pl ac e. Z apatista events s uch as these have c ommonl y been acc essi ble vi a i nvitati on onl y. This e vent differed from most of the EZ LN’s pr evious “ Esc uelitas,” or “ Littl e School s,”
“What we wanted was to meet many women,” sai d C ommander Jenny, who c oor dinated the event. “We thought that onl y a few women wer e goi ng to c ome, s o we are ver y happy to s ee how many of you have j oined u s her e.” Although onl y her eyes were visibl e, a s mil e was detectabl e behind her bl ac k balacl ava. “It has been hard wor k, but we ar e ver y pleas ed to s ee that ther e are many other women who are fighti ng patri archy.” T he event was not onl y an opportunity to cr eate educational or professional networ ks, but als o a s pace to c onsider one’s health and well-bei ng as a woman in the fight for jus tice. T her e were ac ti vities ranging fr om wor kshops, disc ussi on panels and movi e s creeni ngs to theater perfor manc es , art exhi biti ons and s ports events , i ncluding bas ketball
and s occ er matc hes.
self-care, s exis m i n the medi a, s exual rights, health and educ ation, misog yny and chil dhood, dis crimi nation against i ndigenous
communities, women environmental rights defenders,
All of the acti vi ties wer e l ed and held by women, and all of them were ai med at gener ati ng consci ousness of gender inequality or the r estorati on of women’s s elf-c onfidence and autonomy.
said Fer nanda Esqui vel, a 20- year- old student fr om Guadalaj ara. “T o c ome here and s ee that the Zapatistas are still r esisting and have resisted for so many years is a huge i ns pirati on for me. Being wi th so many women and feeli ng united als o makes me feel hopeful about reall y creati ng a c hange. In academia there is nothi ng that c an show you what it is li ke to c ome here, and to feel and share thes e experi ences in practic e.”
like Esqui vel
and followed their fight thr oug h medi a reports, the Zapatista’s own c ommunication c hannel , “ Zapatista C onnecti on,” and more r ec entl y a F acebook page and YouTube acc ount. Women fr om a total of 42 di ffer ent c ountries, some of whom were already familiar with women’s movements or other soci al, political or environmental acti vis m, attended the event in hopes that they woul d gai n s kills and inspiration fr o m the women’s Z apatista str uggle. “Apart fr om wanting to amplify my vision of how different fights ag ains t the
extr acti ve industries are devel oping,” s aid Katheri n Cruz fr om the National Networ k of Women H uman Rights D efenders in Hondur as, whic h acc ompani es women human rights defenders i nvol ved i n territori al c onflicts. “I c ame here so I could rec harge my batteries and take home exper ienc es that strengthen me indi vi duall y and prepare me for the wor k that I do, and for my political ac ti vis m within the femi nist movement in Hondur as.” Th e b irth of th e EZLN In 1983, a group of i ndigenous peas ants i n C hiapas organiz ed in secret,
one that focus es on coll ecti vity, s er vi ng the Z apatista c ommunity and creati ng an autonomous soci al and ec onomic al envir onment for themsel ves
creati ng an entirel y unique philos ophy that
capitalist Mexico.
the Zapatista organization gained constitutional recognition from the
state through the San Andres Accords
the EZLN now governs over 250,000 indigenous people
During the opening ceremony of the encounter, the
Zapatistas made it clear that women were sidelined and perceived by the
community as second-class citizens.
Their struggle has led the women in
the ranks of the EZLN — which comprise about a third of the organization’s
We have put fear and doubt
one of the key characteristics that shaped the movement was
the “Women’s Revolutionary Law,” passed by the Zapatista committees
these rights were claimed not solely for women but were “fully linked and
interwoven with collective rights.”
Much of their work revolves around inspiring new generations to
begin their own journey towards deconstructing norms in their respective
Finall y on Januar y 1, 1994 the group went public, c alling thems el ves the Z apatis ta National Li ber ati on Ar my, named after the hero of the 1910 M exic an Revol ution, Emiliano Z apata. That day, the EZ LN l aunc hed an ar med u prising, oc cupied s even towns in Chi apas , including San Cristóbal, and decl ared war on the M exic an government. Duri ng their brief occ upation, foll owed by a 12-day battl e, the EZLN criticiz ed the effec ts of global c apitalis m on l ocal far mers and i ndig enous land. T hey drew attenti on in partic ular to the N orth Americ an Free Tr ade Agreement, or N AFT A, c alling it a death s entenc e for the indigenous peasants of M exico. N AFTA would be r esponsibl e for dis mantli ng c ollecti ve l and rights s ec ured by the M exican constituti on and prioritizing expor t manufacturing. T he Z apatis tas foug ht for a fairer
distributi on of wealth, as well as the right to politi cal participati on for indigenous people in M exic o. After their ini tial uprisi ng, in 1996
and formed the N ational Indigenous Council. T he Mexic an government did not compl y with the agreements and the Z apatistas conti nued to s uffer from vi ol ent attac ks , s uch as the Acteal M ass acre in 1997, where 45 Z apatista s ympathiz ers were killed in Chi apas . Sinc e then, they have peacefull y organized mass mar ches and pr otests, created their “c aracol es,” or admi nistrati ve headq uarters, for med autonomous governance, j ustic e, health and education s ystems and l aunc hed public campaigns drawi ng attenti on to c ontinued r acis m and discri minati on
in Mexi co. Accor ding to the M exic an news paper El Univ ersal ,
living i n the Autonomous R ebellious Zapatis ta Municipalities in Chi apas . T oday, the image of the Z apatista sol diers, clad i n r ed scar ves and bal aclavas, has reached s ome of the most r emote cor ners o f the worl d. T heir movement is now well known for its transiti on from ar med
struggle to nonvi olent resistanc e to advanc e their demands for i ndigenous land rights and autonomy, which has triggered tremendous s upport and s olidarit y from anti-capitalist acti vis ts globall y. H owever, many of the maj or iss ues for indigenous c ommuniti es addr ess ed by the Zapatistas, suc h as abandonment and marginaliz ation, conti nue to exis t i n C hiapas and other parts of i mpoveris hed M exic o. W omen ’s involvement and p articip ation D uring the gathering, C ommander M arina took the s tag e to tell the s tor y of the first female Zapatistas, their s trug gle for r ec ogniti on in a male- domi nated spac e and their experience of cl andesti ne meeti ngs pri or to their public appearanc e in 1994. “We took our s afety ver y seri ousl y so that no one woul d realize where we wer e goi ng. We had meetings i n the mountains , these wer e ver y i mportant. We had tal ks on politics, r ead books and watc hed films. We s tudied the si tuati on of poverty o ur c ommunity was submerged in,” she s aid. “T her e was nothi ng to gai n tr yi ng to demand thi ngs fr om our bad government.” T he
bac kdr op of the women’s movement within the Zapatista s truggle r eveals extreme levels of viol ence ag ains t women, pover ty and abandonme nt from any s ort of federal heal th or educ ati onal i nstituti ons. Inters ecti onal discrimi nation for being poor, i ndigenous and women was commonplace, and girls wer e often forced i nto marriages or s old by their fathers or families.
Accordi ng to Commander Fl or, even “ mi dwi ves would c harge less when girls were born .”
— to see thems el ves from a differ ent pers pecti ve and s hed light on the pr obl ematic behaviour c aused by g ender inequality. “At the beginning, we were not us ed to s ayi ng our opi nions, or having disc ussi ons . We woul d all agree to ever ything and nod our heads,” M arina s aid. “ We had to fight among our own c ompañeros, si nc e it took a lot for them to unders tand the rights we have as women. T her e is a l ot l eft to ac hieve but we are convinced that we will acc omplis h our ideals bec ause we ar e organiz ed, and we are str ong as a c ollecti ve.
” Many foll owers of the Zapatista r evol uti on wer e not awar e of the key el ements that formed the movement befor e goi ng public in 1994. U ndeni abl y,
in 1992. F or Syl via Marc os, a sociol ogist and expert on i ndigenous movements across the Americ as, the emphasis on women’s
rights is a defini ng factor for the organiz ation. Furthermore, s he indic ates that
as indi viduals,
The unique tr ansformati ons achi eved by the Zapatista i ndigenous movement are manifest i n its attempt to r e-imagine gender and dec olonize oppressi ve disc ours e for the s ake of personal empower ment. Enduring in spiratio n Over the l ast thr ee dec ades , the revolution c ontinues to abide by l aws made by the autonomous Zapatista g over nment. With militar y strategist and s pokes person Subc omandante M arcos “resigni ng” from his ac ti vities , the Z apatis tas have moved out of the media spotlight. H owever, the successful turnouts for their events pr ove that the Z apatis tas ar e s till an i mportant s ource of
inspir ation for soci al mobiliz ations and women’s movements today. N ot si mpl y an ic onic remi nder of what i ndigenous c ommunities wer e up ag ains t in the past, the Z apatis tas ar e eng aging in gr eat efforts to revis e their str ategi es and c onti nue to create networ ks of peopl e who res ist, especi all y among women. T hough al ter nati ve visions of gender rel ati ons have fl ouris hed among the Z apatistas, women i n the movement conti nue to suffer gender vi olence an d are battli ng other iss ues not unc ommon i n C hiapas, s uc h as malnutriti on, and l ac k of ac ces s to health c are and education. T he Z apatis tas ar e addressing s ome of thes e iss ues through their own i nternal i nitiati ves . Part of their coll ecti ve wor k towards i ndependenc e and s us tai nability r elies on their agroec ologic al farmi ng pr ojects, coffee sal es, c ooper ati ve s hops , c ommunity kitchens , tr aditi onal medicine and tortilla busi nes ses . H owever, the fundamental purpos e of the Z apatista movement is to pr omote their way of life and organiz e c ollec ti ve resistanc e to r esourc e appropriati on, historicall y-
deter mined economic and s oci al dis advantages and i nstituti onal negl ect, whic h exacer bate poverty, s ustain the g over nmental elite and des troy loc al tr adi tions.
The Z apatista movement curr entl y functions like an organiz ati on that promotes c onstruc ti ve di alog ue, c ommunic ation and conti nued reflec tion on pr obl ems that affect their c ommunities, as well as a s upport networ k for other national movements, i ncludi ng the water c onflict affec ting the i ndigenous Yaqui community, the 43 Ayotzinapa s tudents missi ng since 2014 and the r ec ent presi denti al c ampaign by the i ndig enous acti vist Maria de J es us Patricio M arti nez .
Reform CP
a. The United States federal government should reform its
immigration courts establishing Article I Immigration
Courts removed from Department of Justice jurisdiction,
substantially increasing the number of judges, raising the
age necessary for court hearings, providing defendants
representation, and delegating jurisdiction over Asylees to
the Article I Immigration Courts. Following the
establishment of the aforementioned policies, if and only if
the criteria is met, the immigration courts of the United
States should do the plan.
b. The CP is key to reduce backlog, create effective
immigration courts, and reduce politicization
Huettman 17
(M elanie, Staff writer and Immigration C orres pondent, “THE CAU SES OF OUR IMMIGR ATION COURT BACKLOG, AND HOW WE C AN FIX IT” J ul y 19, 2017. Nis kanen C enter, Online)//R B
The number of cases pending in the immigration court system is currently at an all-time high.
Immigration judges struggle to get through their overburdened dockets each year, leading to
lengthy wait times—in most cases, years—for those awaiting a decision. Rather than working to
solve the problems, the Trump administration has exacerbated them. According to the Transactional
Records Access Clearinghouse (TRAC), there were nearly 600,000 immigration cases pending at the end
of last May. While the case backlog used to be “manageable”—staying under 200,000—it
crossed that threshold during President Obama’s first term and has risen quickly since. By
expanding enforcement priorities without a corresponding expansion of court personnel,
President Trump’s policies are making that backlog worse. As a result, immigration-related
arrests have skyrocketed, increasing by 38 percent this year, but adjudication rates have
remained the same. The overflowing dockets of immigration judges have led to nightmarish
scheduling delays. Currently, according to TRAC, the average wait time for a Master Calendar
hearing—a preliminary hearing meant to provide a chance to plead and schedule an actual
merits hearing—is nine months. After that, many wait upwards of 670 days to have their case
heard. Some wait four to five years. The huge backlog of cases is harming immigrants who are stuck in limbo as they
wait to learn their fate. It can ruin their chances of receiving pro bono representation, which is usually
necessary to win a case. Worse still, asylum seekers have seen their backlog more than
quadruple in the last five years. In the years they wait for a decision on their case, witnesses
disappear and evidence becomes outdated, drastically reducing their chance of making a
successful claim. Meanwhile, family members may be stuck in their dangerous home countries,
waiting for the asylum case to be resolved to escape. Additionally, the existing backlog poses a
potential threat to our public safety and national security, while also creating negative economic
effects. The delays allow immigrants picked up for criminal convictions or charges to roam free
in the United States for years afterward without much in the way of supervision. Further, while
these individuals wait for their hearings, they often can’t work and have to rely on benefits—
especially true for asylees. It is therefore in our interest to reduce the delays and get these cases through quickly. While
the number of cases has increased, the main cause of the backlog is the failure to hire enough
immigration judges to deal with the influx. There are currently only 58 immigration courts
throughout the country, situated in 27 states, Guam, and Puerto Rico. There are just 300 sitting
immigration judges, 39 percent of whom are currently eligible to retire. Attorney General Sessions has
plans to hire 50 new judges this year, and 75 next year, in order to deal with the caseload. However, this modest increase in judges
will not be enough to cover the new influx of cases, much less tackle the existing backlog. According to a report by Human Rights
First, the system needs over 500 judges completing at least 500 cases each year until 2023 in order to end the backlog. Since it
currently takes close to two years to hire an immigration judge, it is unlikely that this backlog will be dealt with anytime soon.
Solutions There
are a few things the Trump administration could do to reduce the backlog and
improve the immigration court system. First, the administration should focus its resources on
increasing the number of immigration judges. This would not only reduce the backlog, but also
help alleviate the pressure on the existing judges, and allow them to focus more on individual
cases rather than speeding through them. Second, the administration should ensure that
Immigration and Customs Enforcement (ICE) is prioritizing criminals and dangerous
undocumented immigrants rather than targeting all undocumented individuals. By focusing
enforcement resources on removing only those who commit crimes and pose a real danger to
society, the administration would not only further its goal of making our country safer, it would
also reduce the backlog. Third, as the American Bar Association and the President of the National Association of
Immigration Judges, the Hon. Dana Leigh Marks, suggested, it could be beneficial if Congress were to remove
the immigration court system from under the Department of Justice and allow it to be its own
system, like the current system of bankruptcy courts. This idea was first introduced in 1981 by the Select
Commission on Immigration and Refugee Policy. The new system would still handle immigration issues, but
the judges would have more control over the system and their own dockets. It would also allow
for the creation of both a trial and appellate division to better resolve any errors made during
cases, as well as provide national, binding caselaw. Additionally, separating them from the
Department of Justice would reduce much of the politicization entrenched within the system.
increasing the number of immigration judges and enforcing removal priorities, the backlog could
be alleviated, hundreds of thousands of immigrants could be saved from years of waiting, and
we could get dangerous criminals off of the streets. The administration should craft its policies to solve the real
Many of President Trump’s current immigration policies serve only to further strain an already overburdened system.
problems at hand rather than making them worse.
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