Tag: U.S. Representative Jerrold Nadler

Biden Administration Announces Proposed Restrictions on Asylum Applications

On February 21, the Biden Administration announced a proposed rule that would  require rapid deportation of an immigrant at the U.S. border who had failed to request protection from another country while en route to the U.S. or who had not previously notified the U.S. via a mobile app of their plan to seek asylum in the U.S. or who had applied for the new U.S. humanitarian parole programs for certain countries (Cuba, Haiti, Nicaragua and Venezuela). This rule will take effect on May 11, with the expected termination that day of Title 42 that allowed the U.S. to swiftly expel migrants at the U.S. border.[1]

This announcement stated that the new rule would “incentivize the use of new and existing lawful processes and disincentivize dangerous border crossings, by placing a new condition on asylum eligibility for those who fail to do so. These steps are being taken in response to the unprecedented western hemispheric migration challenges – the greatest displacement of people since World War II – and the absence of congressional action to update a very broken, outdated immigration system.”

DHS Secretary Alejandro N. Mayorkas stated, “We are a nation of immigrants, and we are a nation of laws. We are strengthening the availability of legal, orderly pathways for migrants to come to the United States, at the same time proposing new consequences on those who fail to use processes made available to them by the United States and its regional partners. As we have seen time and time again, individuals who are provided a safe, orderly, and lawful path to the United States are less likely to risk their lives traversing thousands of miles in the hands of ruthless smugglers, only to arrive at our southern border and face the legal consequences of unlawful entry.”

Attorney General Merrick B. Garland added the following: “The Department of Justice is responsible for administering the Nation’s immigration courts and ensuring that claims are adjudicated expeditiously, fairly, and consistent with due process. This proposed rule will establish temporary rules concerning asylum eligibility in those proceedings when the Title 42 order is lifted. We look forward to reviewing the public’s comments on this proposed rule.”

The Administration says that without this new rule, immigration at the U.S. border would “increase significantly, to a level that risks undermining the … continued ability to safely, effectively and humanely enforce and administer U.S. immigration law.”

Reactions to the New Rule[2]

“In a joint statement, Democratic Sens. Bob Menendez (N.J.), Cory Booker (N.J.), Ben Ray Luján (N.M.) and Alex Padilla (Calif.) called on the administration to drop the proposed rule. “We are deeply disappointed that the administration has chosen to move forward with publishing this proposed rule, which only perpetuates the harmful myth that asylum seekers are a threat to this nation. In reality, they are pursuing a legal pathway in the United States.”

 A similar reaction came from leading Democratic House members (Rep. Jerrold Nadler and Pramila Jayapal). In their joint statement, they expressed “deep disappointment” with the newly proposed rule and stated, “The ability to seek asylum is a bedrock principle protected by federal law and should never be violated. We should not be restricting legal pathways to enter the United States, we should be expanding them.”

“Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, said they applaud the expanded pathways for those four countries announced in January but question where that leaves migrants from other countries. She says it favors people with resources who can afford the necessary requirements of finding a financial sponsor and buying a plane ticket to the U.S. And some people are so at risk, they simply cannot wait in their country for a humanitarian parole slot. Critics have also highlighted technological problems with the app.”

“The Federation for American Immigration Reform said that the rule isn’t designed to halt migrants as much as make the process more orderly: “In other words, the real objective is not to end large-scale asylum abuse, but rather to get them through the next election cycle.”

Justice Action Center’s counsel, Jane Bentrott, said the proposed rule “would send asylum seekers back to danger, separate families, and cost lives, as human rights advocates have been asserting for weeks. It is in direct contravention of President Biden’s campaign promises to reverse Trump’s racist, xenophobic immigration policies, and give all folks seeking safety a fair shot at asylum.”

Lindsay Toczylowski, the executive director of Immigrant Defenders Law Center in California, criticized the inept operations of the government’s online system for scheduling an asylum application interview. “It’s almost like a lottery. You have to win a ticket to be able to seek protection in the U.S.”

An ACLU attorney, Lee Gelernt, who successfully challenged similar efforts by the Trump Administration, said that Biden’s new proposed rules had the same legal flaws as the Trump rules  and that the ACLU would sue to block the latest move.

Although this blogger has been a pro bono attorney for asylum applicants and more generally an advocate for strong U.S. laws and procedures for same and although he is sympathetic to the above criticisms of the new proposed rules, it must be acknowledged that there is nothing in the international treaty or U.S. statutes on asylum that requires the U.S. to provide asylum interviews at the border to undocumented immigrants. Moreover, this and related changes in U.S. asylum laws and procedures are counterbalanced by new procedures in U.S. law for asylum or parole applications in Central American countries for at least some of these immigrants (Cuba, Haiti, Nicaragua and Venezuela).

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[1] DHS and DOJ Propose Rule to Incentivize Lawful Migration Processes, DHS (Feb. 21, 2023); Jordan, Biden Administration Announces New Border Crackdown, N.Y. Times (Feb. 21, 2023); Parti & Caldwell, Biden Administration Proposes New Limits on Asylum Seekers, W.S.J. (Feb. 21, 2023); Miroff, Asylum seekers who cross U.S. border illegally face new Biden rule, Wash. Post (Feb. 21, 2023); Santana, How Biden asylum rule affects immigration, compares to Trump, Wash. Post (Feb. 22, 2023).

[2] See n.1.

 

Congress Fails To Pass Federal Police Reform Bills   

On June 24 and 25, the divisions between the Republican-controlled U.S. Senate and the Democrat-controlled U.S. House again emerged, this time to prevent, in all likelihood, the adoption of any federal police reform bills this year.

U.S. Senate[1]

On June 24 the Senate was prepared to debate The Justice Act, a bill authored by Senator Tim Scott (Rep., SC), that would encourage state and local police departments to change their practices, by limiting the use of chokeholds, requiring new de-escalation training for officers and better systems for tracking misconduct  and penalizing departments that did not require the use of body cameras. It, however,  would not alter the qualified immunity doctrine that shields officers from lawsuits or place new federal restrictions on the use of lethal force.

The Senate Democrats criticized this bill as insufficient to respond to the problem of systemic racism in law enforcement as the basis for an objection to consideration of the bill. This forced a motion for consideration that, under Senate rules, needs at least 60 votes to pass, but only had 55 votes with Democrats Doug Jones of Alabama and Joe Manchin III of West Virginia and Independent Angus King of Maine joining 52 Republicans. Majority Leader Mitch McConnell (Rep., Tenn.) voted against that motion so that subsequently he could make a motion for reconsideration by announcing his intent to switch his vote.

After this defeat, Senator Scott stated on the floor that he had had offered to give Democrats as many as 20 votes on proposed modifications to his bill that they were demanding, but that they had refused to accept. Privately, Democrats noted that revising the bill would have also required the approval of 60 senators, a threshold they feared they would not be able to meet.

It is still possible that the Scott bill could be brought up again this year in the Senate by the Majority Leader, Senator Mitch McConnell switching his vote from “Yes” to “No” on a motion for reconsideration.

In the meantime, on June 25 the Senate by unanimous consent separately passed a provision of Mr. Scott’s bill to establish a commission on the social status of black men and boys, tasked with recommending policies to improve government programs.

U.S. House[2]

 On June 25, the U.S. House passed, 236-181, the George Floyd Justice in Policing Act.

Representative Karen Bass (Dem., CA), the lead sponsor of the bill, said, “The legislation is the first-ever bold, comprehensive approach to hold police accountable, change the culture of law enforcement, empower our communities, and build trust between law enforcement and our communities by addressing systemic racism and bias to help save lives. Congressional Black Caucus Chair Karen Bass (D-CA), Senators Cory Booker (D-NJ) and Kamala Harris (D-CA), and House Judiciary Committee Chair Jerrold Nadler (D-NY) introduced the George Floyd Justice in Policing Act of 2020 on June 8, 2020. The legislation has 231 cosponsors in the House and 36 cosponsors in the Senate.”

“Under the George Floyd Justice in Policing Act, for the first time ever federal law would: 1) ban chokeholds; 2) end racial and religious profiling; 3) eliminate qualified immunity for law enforcement;[3] 4) establish national standard for the operation of police departments; 5) mandate data collection on police encounters; 6) reprogram existing funds to invest in transformative community-based policing programs; and 7) streamline federal law to prosecute excessive force and establish independent prosecutors for police investigations.”  In greater detail, the Act:

  • “Prohibits federal, state, and local law enforcement from racial, religious and discriminatory profiling, and mandates training on racial, religious, and discriminatory profiling for all law enforcement.
  • Bans chokeholds, carotid holds and no-knock warrants at the federal level and limits the transfer of military-grade equipment to state and local law enforcement.
  • Mandates the use of dashboard cameras and body cameras for federal offices and requires state and local law enforcement to use existing federal funds to ensure the use of police body cameras.
  • Establishes a National Police Misconduct Registry to prevent problematic officers who are fired or leave on agency from moving to another jurisdiction without any accountability.
  • Amends federal criminal statute from “willfulness” to a “recklessness” standard to successfully identify and prosecute police misconduct.
  • Reforms qualified immunity so that individuals are not barred from recovering damages when police violate their constitutional rights.
  • Establishes public safety innovation grants for community-based organizations to create local commissions and task forces to help communities to re-imagine and develop concrete, just and equitable public safety approaches.
  • Creates law enforcement development and training programs to develop best practices and requires the creation of law enforcement accreditation standard recommendations based on President Obama’s Taskforce on 21st Century policing.
  • Requires state and local law enforcement agencies to report use of force data, disaggregated by race, sex, disability, religion, age.
  • Improves the use of pattern and practice investigations at the federal level by granting the Department of Justice Civil Rights Division subpoena power and creates a grant program for state attorneys general to develop authority to conduct independent investigations into problematic police departments.
  • Establishes a Department of Justice task force to coordinate the investigation, prosecution and enforcement efforts of federal, state and local governments in cases related to law enforcement misconduct.”

It would make lynchings a federal hate crime, ban federal officials from using chokeholds, ban federal funds to state and local law enforcement agencies that do not bar chokeholds, bar law enforcement from racial and religious profiling, make it easier to prosecute police officers for misconduct and allow civilians to recover some damages if their constitutional rights are found to have been violated by police, a change to the judicial doctrine known as qualified immunity.

It should be noted that three Republican representatives voted for this bill: Brian Fitzpatrick (PA), Will Hurd (TX) and Fred Upton (MI).

 Conclusion

As a Democrat you supports various means of reforming policing in the U.S., I am disappointed that the Congress was unable to agree on such measures.

However, I think it was a political mistake for the Senate Democrats to block consideration of the Senator Tim Scott reform bill. As I understand what happened in the Senate, the Democrats had no objections to the bill’s provisions. Instead, they objected that the bill did not go far enough. Their objections could have been made during the debate on the Scott bill, with or without proposed amendments that probably would be defeated by the Republican majority. Moreover, by allowing the Republicans to approve the bill would allow the Democrats to provide political support to Republican Senator Tim Scott.

This assessment was shared by Marc A. Thiessen, a fellow of the conservative American Enterprise Institute, a former speechwriter for President George W. Bush, a Fox News contributor and a Washington Post columnist,  He emphasized that stopping such a debate in the Senate eliminated the possibility of having such a discussion in that body for the foreseeable future and even the possibility of having some Democratic amendments adopted. Thiessen claims that the bill already included some Democratic proposed additions: making lynching a federal hate crime, creating a national policing commission to review the U.S. criminal justice system, barring chokeholds by federal officers, withholding federal funds from state and local law enforcement agencies that do not bar chokeholds and that do not report use of non-knock warrants to the U.S. Justice Department. Indeed, according to Thiessen, Senator Scott had said he would vote to support  some of the proposed amendments.[4]

Such a Democratic strategy also would have avoided the embarrassing comment by Senator Richard Durbin (Dem., IL) that the Scott bill was “a token, half-hearted approach,” by an African-American man who personally had experienced police discrimination that compelled the subsequent apology from Senator Durbin.

Moreover, the Democrat-controlled House the next day adopted the more comprehensive reform bill which they wanted and which the Republican-controlled Senate undoubtedly will reject when it goes there.

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[1] U.S. Senate, Justice Act, 116th Congress, 2d Sess. (full text); U.S. Senate, JUSTICE Act (Just and Unifying Solutions to Invigorate Communities Everywhere): Section-by-Section Analysis,  116th Congress, 2d Sess.; Senator Scott, Press Release: Senator Tim Scott Delivers Fiery Speech on Senate floor After Senate Democrats Stonewall Legislation on Police Reform Across America (June 24, 2020); Senator Scott, Press Release: Senate Democrats Block Police Reform from Coming to Communities Across America (June 24, 2020); Edmondson & Fandos, Senate G.O.P. Unveils Narrow Policing Bill, Setting Up a Clash with Democrats, N.Y. Times (June 17 & 24, 2020); Edmondson, Senate Democrats Block G.O.P. Police bill, calling It Inadequate, N.Y.Times (June 24, 2020); Kim, Senate Democrats block GOP policing bill, stalling efforts to change law enforcement practices, Wash. Post (June 24, 2020); Balko, Both parties’ police reform bills ae underwhelming. Here’s why, Wash. Post (June 24, 2020); Peterson & Zitner, Senate Democrats Block GOP Policing Bill, W.S.J. (June 24, 2020); Editorial, The No Debate Democrats, W.S.J. (June 24, 2020); Bobi, Police Reform Stalls Out in The Senate, HuffPost (June 24, 2020).

[2] Representative Bass, Press Release: House Passes George Floyd Justice in Policing Act (June 25, 2020); George Floyd Justice in Policing Act (full text);  Congressional Black Caucus, Fact Sheet: George Floyd Justice in Policing Act ; House Passes George Floyd Justice in Policing Act, N.Y. Times (June 25, 2020); Andrews, House Passes Democrats’ Policing Bill, but No Path Seen for Deal, W.S.J. (June 25, 2020); Carney, Gridlock mires chances of police reform bill, The Hill (June 25, 2020); Brufke, Three GOP lawmakers vote for Democrat-led police reform bill, The Hill (June 25, 2020).

[3] The qualified immunity defense was established by the U.S. Supreme Court in Monell v. Department of Social Services (1978) that victims can’t recover damages from the city under the Civil Rights Act of 1871 unless the police misconduct was a breach of an “official policy or custom.” Subsequent Supreme Court cases have reaffirmed that standard to limit liability to “the plainly incompetent” and “those who knowingly violate the law.” (Malley v. Briggs (1986); Mccleary v. Navarro (1982), and just this month the Court refused to hear current cases challenging that standard. (Reuters, Supreme Court Rejects Cases Over ‘Qualified Immunity’ for Police, N.Y. times (June 15, 2020).)  As Peter Schuck, a professor emeritus at Yale Law School, pointed out, a simple amendment of that 1871 statute would eliminate this defense. (Schuck, The Other Police Immunity Problem, W.S.J. (June 24, 2020).) 

[4] Theissen, Democrats’ shameful vote against Tim Scott’s police reform bill, Wash. Post (June 25, 2020).