The Day the Music Died: RIP Rule of Law in America

When people look back at September 11th, 2019, will they remember it as the day the Supreme Court helped the President get around Congress forever?

The plane crash that killed the music.

On February 3rd, 1959, three of America’s most important Rock ‘n Roll artists were killed in a plane crash. The event changed the course of music history and marked the end of one musical era in America and the beginning of another.

On September 12, 2019, the US Supreme Court ruled that the President’s administration could ignore a law written by Congress in order to deny asylum to thousands of people while the policy of denying asylum is adjudicated in the courts. Why do I say this is the end of rule of law in America? Because if the Supreme Court thought that the Administration’s actions were unconstitutional, they would not have allowed the policy to proceed. Yet the Administration’s policy is a clear violation of Separation of Powers. It is Congress who makes the laws and if the President doesn’t like them, he must go through Congress, not the courts, to get them changed.

This is not a close case. The asylum law says this:

“(1) Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section…

(2) Exceptions
(A) Safe third country
Paragraph (1) shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality or, in the case of an alien having no nationality, the country of the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.”

The above exception is why Trump has been trying to get Mexico to sign a Safe Third Country agreement. Without a Safe Third Country agreement, the exception in the law does not apply. You don’t need a law degree to understand this, just the ability to read.

Yet today, the Supreme Court has allowed the United States government to return asylum seekers to Mexico without an agreement. Read the law again: is this legal? No.

Congress could easily change this law, but it hasn’t. So the correct procedure is for either (1) the administration to sign a Safe Third Country agreement with Mexico or (2) change the law by getting Congress to pass a reform package. We’ve been talking about immigration reform in this country for decades. If the Republican Party and/or the Trump administration would like to get it done, then by all means, do it! But to start going around the laws of the United States as written, well, that’s something else entirely. And to have it upheld by the Supreme Court. Well, that’s something else entirely again.

PM Modi Shows How Xenophobia is Done. Will Trump Take Note?

Tea and Nationalism

You may have been forgiven if you missed the news the other day that US President Trump wants to DNA test immigrants. Where does he get this stuff from? Like most of Trump’s ideas, this one comes from abroad, in this case, probably Kuwait, where DNA testing is the idea du jour to sort “real” Kuwaitis from everyone else. Meanwhile, many have long pointed out the similarities between Trump’s idea for a border wall and Israel’s actual border wall. And I have personally long suspected that the “birther” conspiracy theory in the US had its true genesis in the Ivorian “birther” conspiracy of the 2000s, where many prominent Ivorian politicians claimed that President Ouattara was not Ivorian, but rather an immigrant. Stop me if this all sounds terribly familiar.

There is nothing new in politics, but Trump has a particular knack for recycling far-right ideas from other countries and generations. Even “America First” was probably lifted from the campaign of Charles Lindbergh. So whenever far-right nationalists in other countries implement extreme ideas, I look on with fear and wait for the tweet.

What is Happening In Assam?

America doesn’t have centralized, compulsory citizenship registration or national ID cards. Instead, we use a patchwork of government registries, like the social security administration, voter registration, birth certificates, passports and driver’s licenses to establish our identity to various government agencies, as needed. But many countries have centralized lists of citizens and, in some countries like Malaysia, a single card to rule them all and in the darkness bind them, like the MyKad, a chip “smart card” containing everything from your citizenship status to your health records.

India created a centralized registry in the 1950s and updating this “National Registry of Citizens” was a key campaign promise of India’s Prime Minster Modi. Bangladesh became an independent country in the 1970s and many Indians feel there has been too much immigration from Bangladesh in the decades since. Today, the Indian government is requiring that all residents of Assam, which borders Bangladesh and is one of India’s most diverse regions both ethnically and religiously, prove their residence in India prior to 1971. Many families, even those living in Assam for generations, simply can’t do this. NGOs are calling it the biggest mass disenfranchisement of the 21st century. It is unclear what will happen to families left of the list, but government officials have spoken of mass expulsion and detention.

What Does this Mean for Global Nationalism?

Americans without Indian relatives usually don’t pay much attention to Assam, except when they drink tea, but everyone in America should pay close attention to what’s happening in Assam today, because what happens in nationalist states no longer stays in nationalist states. Toxic ideas spread abroad throughout the global far-right movement, absorbed like cancerous particles of radium spewed from reactor 4 in the Chernobyl power plant, invisible and deadly. You might not be paying attention, but I can guarantee you Trump is.

Ideas Spread Faster Than Radium Dust

We Don’t Need Bill Barr’s Opinion on What the Word “Group” Means

Sudan accedes to the 1951 Refugee Convention

Bill Barr, philosopher of language?

Years ago, when the international Refugee Convention that became the basis of our refugee law was drafted in upstate New York, the drafters struggled to create a law that would be fair and would offer protection to those who needed it most, without leading to open borders. They came up with a vague concept, persecution, which was not defined. Over time, however, judges all over the world, guided by voluminous UNHCR policy papers, have slowly hammered out a workable definition of persecution through thousands and thousands of examples.

Instead of offering international protection to everyone who was persecuted, however, the drafters took the additional step of creating five categories of people on account of which the persecution had to be done. I you weren’t being persecuted on account of one of these five categories, you couldn’t be a refugee no matter how badly you were being persecuted. These five categories reflected the pre-occupations of the 2nd World War (and the Cold War) in response to which the Convention was being drafted: race, religion, nationality and political opinion. These were the main reasons for Nazi and Communist persecution.

But the drafters knew that there may be other reasons for persecution, so they added in the category of “other social group,” creating a sort of catch all to cover possible other types of people who might need protection. “Other social group” was never defined and subsequent generations of judges have struggled, both here in the US and elsewhere, to figure out what it means.

Enter the Trump administration. For decades, the category of “other social group” has expanded to include classes of people who were not recognized as being in need of protection in 1951, but are frequently persecuted, like gay people, people at high risk of gang violence and women fleeing cultures of gender violence and control. Of course, the Nazis also persecuted gay people, but so did the US government, so including homosexuality as a protected category never entered the debate in upstate New York all those years ago. Ditto gender persecution, which many people both here and in Communist countries regarded as the normal state of affairs.

Today, these gaps in the refugee regime are increasingly filled by the “other social group” category. But defining gay people or abused women as a “social group” isn’t always easy. Under US law, groups must share at least one common characteristic. The formulation often requires that the intent on the part of the government to persecute on a group bases be inferred, rather than explicit, conduct. Such persecution often requires a showing that the government failed to act and allowed others to persecute instead. As a result, the jurisprudence around the “other social group” category is often….creative, to put it mildly. Basically, judges use a badly drafted, vague and out-dated law to achieve the right result. But this leaves these decisions especially vulnerable to retrograde thinking.

The growth of jurisprudence around “other social group,” or “particular social group” under US law, has proved to be low-hanging fruit, first for Sessions, and now for Barr. Instead of relying on judges to shape asylum law, Barr is opting for the same top-down approach as Sessions did, shrinking definitions and interpretations of refugee law by fiat so that they apply to narrower categories of people. The administration is now trying to scrape away the advances judges have made in defining “other social group.” I am not sure if this approach, overriding judges, is constitutional, but from the perspective of interpreting the Refugee Convention, it is highly problematic.

For starters, US refugee law adopts almost verbatim the definition in the 1951 Refugee Convention, meaning that we cannot look to Congress for ideas as to what the law means. Instead, we must look to the drafting process of the 1951 Convention. But the Convention was specifically written for events occurring as a result of World War II in Europe. It was drafted to be a time-limited document, not a living document like the US Constitution. Later, the time and location restrictions were removed, but the definition was not revised. To treat any term or concept in US refugee law as having one right meaning is therefore not possible. The Convention terms and concepts were never meant to be applied to any of the circumstances for which they are now being used. The best approach would be for Congress to draft a new law, or even to participate in the drafting of a new international Convention that is updated for our modern needs.

Absent this unlikely scenario, a better approach would be to continue to allow US refugee jurisprudence to develop organically over time, reflecting the common-sense approach crowd-sourced from the minds of hundreds of judges, as overseen by the US Supreme Court, and guided UNHCR policy, which attempts to impose some sort of global standardization so the US does not veer off in a wildly different direction from, say, Canada. What we definitely do not need is Bill Barr’s personal opinion on what words mean.

Torturing Immigrant Children in Jail is Only Making Trump More Popular

Cruelty Is The Point

Recently, Trump enjoyed a small uptick in his approval ratings. Pundits tell me this is because of “the economy,” but personally I believe it’s because Trump is now really shoving it to all those immigrant children that Trump voters hate so much. Mexico is sending its national guard to its southern border to do god only knows what (do you even want to think about it?). Pointless cruelty is now the official policy of CBP, ICE and DHS. Are any of these policies working? It doesn’t matter. Pussies are getting grabbed. That’s what matters in Trump land.

As Adam Serwer wrote in The Atlantic last year, “The Cruelty is the Point.”It’s how Trump voters bond and it’s why Trump got elected. It’s what E. Jean meant when she wrote that, “I run the risk of making him more popular by revealing what he did.” Trump voters wanted to shame and humiliate Hillary Clinton, and Trump did. They wanted to hurt the “libs” and stick it to Obama and black voters, and Trump did. They wanted to “win,” which in Trump world means putting your expensive Italian loafer (pun intended) on the neck of everyone else, and Trump did that, too.

It doesn’t matter that Trump has done nothing for their health insurance or bank accounts. The Mueller report doesn’t matter; they all know Trump is a criminal sociopath who would sell out his country for his name on a candy bar. They don’t care. Just like how Brexit voters are willing to hurt themselves and risk breaking up the UK, restarting the Irish civil war and crashing the economy, as long as foreigners are hurting worse.

Many people were shocked to see what conditions are like in immigration detention, but they shouldn’t be. Mistreatment is the point of detention. Detention is the government’s way of reminding people it can do whatever it wants to them. Brown children in detention is what Trump voters voted for. It’s what they want.

I am not saying that Congress shouldn’t investigate detention centers, or push to have them shut down, or give money to improve conditions. I’m not saying the media shouldn’t investigate and publish stories and photos. I’m just saying that these stories and photos are showing Trump voters that Trump is doing what they hired him to do. They help mitigate Trump’s various failures: his failure to put Hillary Clinton in jail. His failure to make China beg for forgiveness. His failure to force Mexico to pay for a wall. His failure to deport Obama. But as long as brown children and the feminazis are suffering, that’s enough for many Trump voters. Just like how Italian voters don’t care Salvini took money from the Russians, he’s sticking it to that uppity ship captain and her boat full of immigrants, and that’s what they’ve all been waiting for…for years.

Unfortunately, this creates a viscous feedback loop whereby Trump and other far right politicians are pushed into ever more grandiose and obscene orgies of cruelty, like the Roman emperors of old, in order to keep their base sated. I believe a Democrat can win in 2020, but first we need to let go of the illusion that Trump voters are somehow going to abandon Trump because of his cruelty. The cruelty is the point. And he’s going to need a lot of it to win in 2020.

What is “Country of First Asylum” and Why is Trump Trying it On Now?

The Trump administration’s plans for shutting down asylum change so fast and include so many different strategies, it can be hard to keep track. According to the NY Times, now that Mexico and Guatemala have pulled out of Safe Third Country talks, the plan is to try a policy called “Country of First Asylum.” Someone in Trump-land’s been searching on Refworld! (Is this what Steve Bannon does all day in his castle in Italy? Search obscure EU and UN refugee policy papers for ideas?)

Once again, like so many news agencies, the Times has included a helpful quote from Bill Barr on asylum law. “This rule is a lawful exercise of authority provided by Congress to restrict eligibility for asylum…” he says.But if you’re not quite ready to take Bill Barr’s word on something, here is a brief run down on what it means.

From the article, it sounds like the Trump Administration will refuse asylum to anyone crossing the southern border who has not already applied for, and were rejected from, asylum in at least one country they traveled through, including Mexico. As a matter of logic, this policy makes no sense. If Mexico rejected an asylum-seeker, why should the US accept them? Is the US government saying Mexico’s asylum process can’t be trusted? But if the US is saying Mexico’s asylum system can’t be trusted, how can Mexico be a Safe Third Country?

But let’s set aside common sense for a moment and consider the law in isolation. What this law essentially says is: “Mexico can’t do asylum right, so if you’ve applied there and been rejected, you can apply here and we’ll take a second look. But you have to apply there first.” This is not First Country of Asylum. Rather, First Country of Asylum, a concept that has been much invoked (with little success) in Europe, says that if you are safe from deportation and sufficiently protected in country A, you can’t go apply for asylum in Country B. The best known application of this principle has been in the EU under the Dublin regulations. The principle rests on the assumption that all EU member states are safe places able to offer protection to refugees.

Is Mexico a safe country able to offer protection to refugees and a pathway to asylum? Is Mexico going to allow people to apply for asylum or simply deport them back over the border? If it sounds like we’re back to arguing over whether or not Mexico is a Safe Third Country, that’s because we are.

Of course, the onslaught of changes to the asylum procedures, if not the laws, have brought Trump some temporary relief. In particular, the 9th circuit has allowed Remain in Mexico to stand while they decide if its legal, an ominous sign. One wonders sometimes if judges can read, since it is totally illegal under both US and international law to send an asylum-seeker back to any country where their life or freedom may be threatened, even next door neighbors that share a border with the US.

Beyond this obvious and glaring problem, it’s pretty clear that the clause in the immigration code that the Trump Administration is relying on, the one about “contiguous countries,” doesn’t mean what they say it does. They are trying to ram through a major new asylum policy on the basis of vague wording in an obscure clause in the immigration law.

What Trump really needs is a Safe Third Country agreement with Mexico, not cliff notes asylum law written by Steve Bannon.

Trump Is Getting Ready to Re-Colonize Guatemala

Flags over Agadez, Niger

De-colonization and Global Migration

In the early 1960s, European colonization collapsed all over the world, falling in on itself like a series of dominoes and leading millions into freedom after one of the darkest chapters of world history. Many complex forces led to political independence, but perhaps none was more important than World War II, which left European countries wreaked and impoverished, shrinking in on themselves. Unfortunately, this reprieve was short-lived for many former French colonies, who today struggle in a grey zone between true independence and quasi-French rule. The reprieve was also short lived for many Central American countries, which have struggled with invasive US policy for decades, as the United States adopted a proto-colonial role in the region.

Meanwhile, the post-independence period, with rising wages, increased education and access to technology, has led to an increased interest in migration on the part of many people living in post-colonial states. While many are forced to flee due to conflict and persecution, many more are on the move in search of a better life and, most critically, in search of something few post-colonial states can offer in large enough quantities: political stability and good paying jobs.

The enormous rise of the global middle class has led to an increase in reverse migration. By far the vast majority of migration continues to occur between neighboring states, but where once, millions of Europeans spread all over the world in search of opportunity, now, the flows have now somewhat reversed, with some working and middle class people now making the return journey.

If we adopt the logic of current politics, KEEPING PEOPLE OUT is a vital goal for the United States and Europe. Instead of being supported by extensive government policies designed to encourage migration in the face of enormous physical hardships, as was the case for Europeans in the 19th century, people who migrate outside of their home regions today are beset by a patchwork of policies deliberately designed to make migration as difficult as possible. But some of these policies have been working better than others.

Re-Colonization as Part of Managed Migration

Keeping People Out is Now the Only Goal that Matters

In the 2010s, it became increasingly apparent that former French colonies in northern Africa were not going to do their former colonial rulers any favors by stopping migration to Europe. Post-conflict Libya in particular became a funnel for migration as international cartels moved thousands through an increasingly formal network across the Mediterranean and into Europe.

In response, Europe essentially recolonized Niger in a bid to stop the flow from ECOWAS member states. ECOWAS freedom of movement ends at the Niger-Libya border and it is there that the EU is making its stand to KEEP PEOPLE OUT. Today, the EU pays millions to beef up Niger border security and has stationed EU member state troops at the border. Niger has passed new laws making “people smuggling” a serious crime. In return for all of this, Niger may be receiving as much as 1 billion Euros in aid. If we try to occupy the morals-free headspace of EU migration policy makers, where KEEPING PEOPLE OUT is the most important goal in human history and all values must be tossed to the wayside to accomplish it, the Niger program has had some success is decreasing migration to Europe through North Africa and is therefore “working.”

Can Re-Colonization Work for Trump in Central America?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Can the Niger “solution” Work Here?

Trump hasn’t been able to build a wall with Mexico. But KEEPING PEOPLE OUT was the raison d’etre of his political campaign, so the Trump Administration is desperate for a solution. Adopting the logic of Trump’s voters, where KEEPING PEOPLE OUT is more important than any other government goal, are any of Trump’s policies likely to work? Right now, the administration has created a humanitarian emergency by enforcing the letter of the immigration law, while also failing entirely to KEEP PEOPLE OUT. But changing the laws in today’s political climate is next to impossible. So the only solutions that will KEEP PEOPLE OUT must happen outside the US, in the realm of foreign policy, where Trump has more of a free hand.

Someone seems to have finally sat down and read the US immigration code and realized that they desperately need a Safe Third Country agreement with Mexico. The administration has been trying to bully Mexico into signing this agreement for months, but so far, all they’ve gotten is vague promises to deploy troops to the border. Likewise, attempts to violate US law with the illegal “Remain in Mexico” policy likely to fail in the courts (though this is now less certain given the rightward swing of the 9th circuit, under whom all asylum claims are automatically fraudulent and, therefore, all asylum seekers are automatically subject to eventual deportation under 8 U.S.C. § 1225(b)(2)(C ).

More on the use of this obscure and vague statutory provision can be found here, but it’s clear that Congress did not mean to circumvent the entire asylum process and create a bizarre and unprecidented jurisdictional bubble in Mexico simply by adding a single clause to the immigration law. The purpose of this clause was clearly to allow failed asylum-seekers to be deported to Mexico while the await final deportation to their country of origin. Even this interpretation is problematic for asylum-seekers who do not have a valid visa for Mexico.) Even if “Remain in Mexico” survives, it’s not clear that creating a border crisis in Mexico is going to help anything.

So the administration has apparently turned its attention to Guatemala, where Trump claims he is close to success. Of course, signing the agreement is only the beginning, as transforming Guatemala into an actual safe third country will take a massive US investment in their immigration, asylum and border control system and, quite likely, the deployment of US troops and personnel. (Also, such an agreement would not apply to asylum-seekers from Guatemala itself.) It will take the sort of investment and takeover the EU are trying in Niger. It’s not clear the administration has the attention span or organization capacity to make this work. So far, their attempts to negotiate have begun with threats by cutting existing aid, which implies that they are unwilling to invest the kinds of money it would really take to get Guatemala to sign on.

This brings us back to the ultimate aims of US immigration policy. Right now, we have a system increasingly designed to KEEP PEOPLE OUT. It costs billions of dollars and often results in unspeakable cruelty for which we, Republicans and Democrats, are responsible. After all, it was the Clinton administration who first criminalized immigration and the Obama administration who increased deportations.

One of the few things everyone in this country can agree on is that our immigration system isn’t working. It’s not working for the US and it’s not working for other countries in the region. And it’s definitely not working for immigrants. The questions all US citizens must now ask themselves are “How important is it to me, personally, to KEEP PEOPLE OUT? What am I willing to do, or have done for me, in order to KEEP PEOPLE OUT?”

Until we can all answer those two questions, our government will continue to lurch around, passing and then breaking its own laws.

Today is World Refugee Day, But the Google Doodle is All About Soccer

This Image Says Everything You Need to Know About What’s Wrong in the World

Happy World Refugee Day, everyone! Oh, didn’t you know?

I bet the bros at Google thought they were being really woke when they made the Google doodle today about the women’s world cup. I get it. Google doesn’t exactly have a great image right now on gender stuff. But still, it was crushingly disappointing to open Google today and see that World Refugee Day didn’t rate a mention.

Over the years, the Google Doodle has emerged as a particular window into elite American psychosis, simultaneously banal and highly significant. The doodle captures what Silicon Valley, one of the most exclusive clubs of all time, wants other people to think it cares about. Right now, the Doodle tells me that Google really, really wants me to think it cares about women’s soccer, even though I know this isn’t true, and Google knows I know it’s not true. Essentially, the Doodle is watching me, watching Google, watching me back— a stream of privileged, American, white male anxiety and suppressed rage reflected down an endless hall of mirrors, back and forth like a ping pong ball, until it is safely repackaged and rendered into a harmless, cutesy, PC, animated image.

What today’s Google Doodle tells me is that Google is probably totally unaware that World Refugee Day exists.

Last week, UNHCR released its latest statistics on refugees and there are now a whopping 70 million displaced people in the world, 2.3 million more than last year. And, as UNHCR themselves admit, this is likely an under-counting. At this rate, there will be as many refugees as US citizens in 200 years. Yet to the world’s 1%, refugees exist in a corporeal plane that is entirely separate from their lives and experiences, and certainly far away from the air conditioned offices and pleasant coffee shops where Google employees spend most of their time. Do any refugees or former refugees work at Google? An interesting question. I googled it, and got no answer.

For years, UNHCR has been trying to promote World Refugee Day. In many countries in Africa, the day now receives major attention, with large events planned across countries. But in the US, it remains so obscure that even with increased public awareness of refugees during the Trump administration, there are only relatively low-profile events planned here in NY and most Americans are probably totally unaware. (Here’s one event, if you have time.) A Google Doodle could have helped change that.

The internet promised to bring us closer together, but with the creation of silos and information bubbles, it doesn’t seem to be doing its job. I can now stay in touch with my friends and colleges across oceans, but am often unaware of what is happening to my neighbors. I am not saying things were better before — when I started working with refugees, most of my friends and family considered it to be an obscure job, as though I had announced I was working with barn owls, or something. Today, most Americans are at least aware that there’s a huge problem going on, somewhere else.

Seeing the Google Doodle today made me feel sad. But only for a moment. Google doesn’t run the world (yet) and everyone is equal, even if it sometimes feels like some people are more equal than others.

So here’s hoping that next year, the women soccer players get paid the same as the men, and there are fewer refugees in 2020 than in 2019. In the meantime, today is the day when we, the world, collectively celebrate the courage, the tenacity, the skills and the contributions of the world’s refugees. So break out that Einstein teeshirt and, please, tell all your friends.