Kirsten Zittlau
Appearances
Behind the Bastards
It Could Happen Here Weekly 184
Yes, that's a correct statement, James. So there are no new asylum cases. In other words, people who cross at the southern border are now detained only to be removed immediately, basically, or as soon as possible under what's called 212F authority. It's under the Immigration and Nationality Act.
Behind the Bastards
It Could Happen Here Weekly 184
Trump has used this authority, which basically broadly says that if the president finds a certain class of immigrants or the entry of immigrants would be detrimental to the interests of the United States, they may by proclamation suspend all entry of said immigrants.
Behind the Bastards
It Could Happen Here Weekly 184
So that was the purpose and the effect of the executive order discussing the invasion at the border and all the other executive orders discussing Invasions and criminal aspects such as cartels and Tren de Aragua, which we all know now, is the justification for, alleged justification for just shutting it down at the border.
Behind the Bastards
It Could Happen Here Weekly 184
So whereas people used to get credible fear interviews or were paroled into the United States to be allowed to fight an asylum case, None of that is happening anymore.
Behind the Bastards
It Could Happen Here Weekly 184
And people are, if anything, only screened for what's called Convention Against Torture screenings to just determine like, hey, are they going to be tortured by their government or with the acquiescence of their government if they return to their home country? But even then, they are not allowed to remain in the United States or fight any relief in the United States.
Behind the Bastards
It Could Happen Here Weekly 184
That just means that they will be deported to a third country. So that was the situation, like when we saw the Iranians sitting in the hotel room in Panama. That's what happened there, most likely. So that's the situation at the southern border. Whoever is still in the United States, you know, who came in before Inauguration Day is still allowed to fight their case as of now.
Behind the Bastards
It Could Happen Here Weekly 184
Yeah, so I think the biggest two factors affecting asylum cases these days is what you just referred to, which is the asylum ban called the circumvention against lawful pathways that barred people essentially from asylum if they did not use CBP1.
Behind the Bastards
It Could Happen Here Weekly 184
the application to apply for an appointment, which, of course, only allowed, I think, $1,500 a day or something absurd, forcing most people to cross unlawfully. So that's still very much in place. The litigation has been stalled forever. There's no hope of, you know, I don't think there's a movement on that. I haven't seen or heard anything.
Behind the Bastards
It Could Happen Here Weekly 184
Most likely intentionally, because when Trump did a similar ban, it was overturned immediately. So this is like a new strategy that we're seeing where things are just lagging in court.
Behind the Bastards
It Could Happen Here Weekly 184
This is all, I think, strategic. So that circumvention against lawful pathways ban is still very much an impediment. You know, we all, of course, argue that every migrant in Mexico was in danger and thus qualifies for the exception to the CLP that their life was in danger and that they couldn't afford to wait the many, many months for the CBP1 appointment.
Behind the Bastards
It Could Happen Here Weekly 184
But judges, it's been met with mixed reviews. They generally like to see somebody basically near death for the exception to apply. And of course, the immigration bar argues that all migrants are basically under threat of death. I mean, any cartel or even immigration official contact in Mexico could have been a death sentence very easily, as we all know.
Behind the Bastards
It Could Happen Here Weekly 184
So that's a big thing affecting the latest thing that's also being implemented as a result of this Cartel terrorist organization designation is, you know, where it's not just the cartels, it's MS-13 and 10 de Aragua, is that there's a what's called a trig bar that's applied then also to asylum. And the bar is basically about material support of any of these groups.
Behind the Bastards
It Could Happen Here Weekly 184
But it's construed to an absurd degree where even if you made a bowl of food for some Maras under duress or you made payment because your kid was about to be killed. Right. That's considered material support and you're barred from asylum. I wondered if they would do that. Yeah. So we're seeing that, too. Other than that, I mean, I have been fortunate to win asylum for folks under Trump 2.0.
Behind the Bastards
It Could Happen Here Weekly 184
I mean, I don't know how long that'll still last, but judges are still, you know, granting cases. So I'm glad to see that. Yeah. So that's generally what it's looked like these past four months for asylees.
Behind the Bastards
It Could Happen Here Weekly 184
A hundred percent. You know, just to say, I mean, and funding somebody's legal fees. I mean, an attorney makes all the difference in navigating these types of issues that I just talked about and other issues in presenting your case. I mean, asylum cases are still incredibly difficult to win. And so representation of counsel is often key.
Behind the Bastards
It Could Happen Here Weekly 184
Absolutely. So I came into the case about, I want to say, a month or two ago. She had somebody supporting her, a friend living in Texas. And that situation, a living situation has changed, I believe, which is also not the worst thing. She will be moving with a friend to Southern California. or moving in with a friend, rather.
Behind the Bastards
It Could Happen Here Weekly 184
But just the situation is very different in Texas and Louisiana and Mississippi and those types of states, markedly so. And her case is a good example of that.
Behind the Bastards
It Could Happen Here Weekly 184
And there's a reason that people like Mahmoud Khalil and many others are sent to detention centers in that area because it's in the Fifth Circuit, first of all, which is widely renowned to be not a favorable circuit, a court of appeals to immigrants. Yeah. But more so than that, even the judges themselves are very different from what we would encounter in California, for example.
Behind the Bastards
It Could Happen Here Weekly 184
So my first encounter with the judge was, you know, and this is all virtual. I submitted a motion to appear for her. She had a master calendar hearing in June. I submitted a motion to appear for that telephonically, explaining I was representing her at low or no cost, you know, whatever funds could be raised. And could I please appear for a status? It's a status type conference. Telephonically.
Behind the Bastards
It Could Happen Here Weekly 184
And that motion was met with a really strange response. To this day, I don't really know exactly. It was sort of approved, but then moot because eventually a final court hearing was set. So that's where we're at right now. She has a final court next year and about a year and a couple months.
Behind the Bastards
It Could Happen Here Weekly 184
But in ruling on my WebEx motion, I was emailed the order of the judge along with a notice that primers should self-deport. Okay. So judges are sending out these notices with routine other orders in cases where the immigrant has counsel, is fighting their case. Yeah. It's obvious they're fighting their case. Jesus.
Behind the Bastards
It Could Happen Here Weekly 184
And yeah, so it's one of the things where you just feel very strongly this administration's influence. Are they obliged to do that? Or is that a choice that the judge is making? Not at all. And in fact, it's completely inappropriate. So all of us are... Okay. The immigration bar is taking a different approach to it.
Behind the Bastards
It Could Happen Here Weekly 184
Some are filing motions to recuse, telling the judges, hey, you need to recuse yourself. You're a non-neutral judge. To send this out in the middle of the case is absurd. It's a due process violation. They're entitled to a neutral judge. Yeah. I think my approach would be more one of playing dumb because often this has happened.
Behind the Bastards
It Could Happen Here Weekly 184
The system, if you will, of ECAS, the electronic system that we use for court immigration filing systems that Elon Musk briefly had access to or whatever was going on there. But anyways, I digress. You know, we'll send out automatic notices. with the emails, with the judge's order.
Behind the Bastards
It Could Happen Here Weekly 184
So my approach, I think, will be to give the judges the benefit of the doubt and ask them if this was an electronic notice. And if they say no, then I've gotten it on the record. And if they deny the case, I have that in there for the appeal. But yeah, it's happening all over the country with all sorts of different judges. And it's definitely something that we're grappling with right now.
Behind the Bastards
It Could Happen Here Weekly 184
And it's just, it's very ballsy for a A judge to say, hey, leave the country, and oh, by the way, I'm a neutral arbiter?
Behind the Bastards
It Could Happen Here Weekly 184
Yeah, it's absurd. I mean, it's such a violation of due process rights, and I know everybody in this country now knows the importance of due process, whereas before, only attorneys threw that term around. But no, I mean, this stuff really matters, you know? Yeah.
Behind the Bastards
It Could Happen Here Weekly 184
And then also another thing that happened in Primrose's case is that when you have a work permit clock, right, which is another absurd thing for asylees, that once they file their asylum application, they have to wait 150 days before they can apply for a work permit. And of course, they're expected to be independently wealthy during those five months or, you know.
Behind the Bastards
It Could Happen Here Weekly 184
Or starve, or I don't know what they're expected to do. Yeah, rely on the generosity of others. Exactly.
Behind the Bastards
It Could Happen Here Weekly 184
So if you do something like try to change venue or a motion to continue, if you do something in your case that the judge perceives as not moving the case along and rather like kind of trying to stall it or possibly pausing it or slow it down, the judge will stop the work permit clock, the days, and it's a whole thing. So Primrose's was stopped because the judge wanted her to get an attorney.
Behind the Bastards
It Could Happen Here Weekly 184
So usually when the case is set for a final hearing, that code, adjournment code, they call it, I know from, we have the access to the codes and what stops the clock and what doesn't. And it always restarts the clock because you moved your case along because you're setting it for trial. It's obviously moving your case along. Hers was not restarted. for whatever reason.
Behind the Bastards
It Could Happen Here Weekly 184
And my only remedy would be to write some court administrator who may or may not ever respond. I can't even go to the judge about this. You know, it's absurd. So that's just the situation that one asylum seeker is dealing with in Texas. So you can only imagine what goes on in detentions, you know, detained cases in those states.
Behind the Bastards
It Could Happen Here Weekly 184
A hundred percent. A hundred percent. And there's no legal basis for the judge to be issuing that. In fact, it's completely unlawful to be issuing something like that at the beginning of the case. At the end of the case and at the beginning, the judge does have to give certain advisals. But telling somebody to self-deport is never an advisal that should be given under the law ever.
Behind the Bastards
It Could Happen Here Weekly 184
And plus, I should mention real quick that it's disingenuous and harmful and that with these, you know, this administration on purpose isn't telling people with the thousand dollars, take the thousand dollars in self-deport and, you know, we'll pay for your flight and all this stuff. What they're not telling people is that when you leave, you're then subject to a deportation order.
Behind the Bastards
It Could Happen Here Weekly 184
And that comes with a 10 year bar. This is not mentioned and that's a big deal.
Behind the Bastards
It Could Happen Here Weekly 184
Well, it did. And then but then they switch tactics a little bit with the app to self-support saying like, you know, leave now, leave now. So you have a chance to come back later or something like that. Right. You know, without mentioning that, hey, no, you're barred from the United States for 10 years.
Behind the Bastards
It Could Happen Here Weekly 184
And if you ever return unlawfully, then you're subject to a whole series of, you know, I mean, it's just there's all these warnings that need to come with the deportation order that are strategically left out of all the administration's latest messaging on this topic.
Behind the Bastards
It Could Happen Here Weekly 184
Yes. So this has been happening periodically throughout the past four months. But in the past few days, like this week, it's been dramatically ramped up. Like right now, as we're recording this, ISIS arresting people in the downtown San Diego court and also courts throughout the country. It's been reported everywhere happening widely this week.
Behind the Bastards
It Could Happen Here Weekly 184
And this is another thing the administration said they were going to do and is doing. I mean, you know, they're doing what they said they were going to do. Yeah. And it's to use what's called 235 authority more broadly. So INA Section 235 applies to people who entered within less than two years, like you said. And they can be then subject to what's called expedited removal.
Behind the Bastards
It Could Happen Here Weekly 184
That means that they have to take a credible fear interview and be detained and that they only get to fight a case if they pass their credible fear interview. And then they do not qualify for an immigration judge bond. So they only get out if ICE lets them out, which, of course, ICE is letting nobody out.
Behind the Bastards
It Could Happen Here Weekly 184
So the administration wants to have people detained under this authority, this 235 authority, as much as possible to have them have to fight their case detained and either lose the will to do so and or not be able to afford an attorney because detained cases move along a lot quicker and are very costly as well for that reason.
Behind the Bastards
It Could Happen Here Weekly 184
So what they're doing is anybody who was here two years or less but was paroled in. So they're in the regular immigration court proceedings. They got out there under 240 proceedings, it's called. So DHS attorneys in court are terminating those proceedings. They are asking the judge to terminate the 240 proceedings.
Behind the Bastards
It Could Happen Here Weekly 184
So then that case is closed and then they immediately restart a case under Section 235. And the second they do that, the person is subject to mandatory detention and ICE is right there in the courthouse to arrest them and detain them.
Behind the Bastards
It Could Happen Here Weekly 184
And colleagues and I have been talking about this. I haven't researched it thoroughly, but I think also the nature of these proceedings, like the 235 proceeding, like you are mandatory detention, like you were taken into custody. It's as if you just crossed the border. And, you know, are taken into custody. It's treated like like that type of situation, like no warrant is necessary.
Behind the Bastards
It Could Happen Here Weekly 184
Exactly. So the real issue here is the the ethical. I mean, a lot of us are grappling with this and, of course, fiercely opposing these motions. In that the justification that the DHS attorneys are attempting to use is that circumstances have materially changed since the issuance of their initial case that they're in now. Which, of course, is not the case. Right. Like, whose circumstances?
Behind the Bastards
It Could Happen Here Weekly 184
Exactly. Exactly. Like, the rise of fascism doesn't constitute a changed circumstance. Yeah. So... It's just there's no there's no basis for this motion. And secondly, the only basis like there's zero justification for this other than filling detention centers, lining core civic NGO groups pockets. Yeah. And intentionally prejudicing an immigrant to have to fight their case detained.
Behind the Bastards
It Could Happen Here Weekly 184
I mean, right. There's no there's no good or legitimate justification for this period. The end, you know.
Behind the Bastards
It Could Happen Here Weekly 184
100%. That's the whole point is this whole administration's, the messaging and their actions are all about forcing people, breaking people's spirits and forcing them into a situation where they feel their only option is to self-deport. Yeah, it is heartbreaking. It's very sick. Yeah, it's very disturbing. It's very, very different from Trump 1.0.
Behind the Bastards
It Could Happen Here Weekly 184
Absolutely. I mean, I think we can all agree or disagree as far as how we feel about the past four months and what has happened. But I think everybody can agree that the pace at which it has happened is extremely concerning.
Behind the Bastards
It Could Happen Here Weekly 184
Yeah, they're they're supposed to give them opportunity to be heard, essentially, and give notice of this third country that they're going to be deported to that nobody and no judge has ever considered whether they have a fear or if they would be in danger or deported to this country.
Behind the Bastards
It Could Happen Here Weekly 184
So again, this is a due process situation where, hey, before you can be sent to some random country, especially South Sudan, maybe you should be given an opportunity to present why you have a fear or that something bad might happen to you over there to a judge. And so this was recently ordered. I believe the case is called DBD versus DHS was what stopped the Libya situation from happening. Mm hmm.
Behind the Bastards
It Could Happen Here Weekly 184
where, yeah, a judge said, this is exactly what needs to occur. These people need to be given real notice, not this whatever has been, you know, and an opportunity to be heard. And then, yeah, they immediately thereafter attempted to, as you said, or I think, I don't know if they actually accomplished it with South Sudan.
Behind the Bastards
It Could Happen Here Weekly 184
Yeah, they probably won't, but we'll be told that they did. Or we'll be told that they were criminals in the first place, which is the other theme of this administration, right? With the Alien Enemies Act, which has basically been put on pause by a number of Satan judges who have said, there's no invasion, there's no war, this is absurd, this just flat out doesn't apply.
Behind the Bastards
It Could Happen Here Weekly 184
And I have to say that the immigration bar is very, I think, not just the immigration bar, I think all of us are very frustrated that the Supreme Court has not yet come out with a definitive substantive ruling on this. Because for the people who don't know, the Alien Enemies Act allows the administration to circumvent the INA, which is the whole immigration court system system.
Behind the Bastards
It Could Happen Here Weekly 184
And immediately deport supposed criminals who were invading the country. I mean, we all know this with the Venezuelans who were accused of being trying to get Aragua just for having tattoos. Yeah.
Behind the Bastards
It Could Happen Here Weekly 184
And so that is, to me, and I think all of us, the biggest threat to just be able to put somebody on a plane to another country and in a prison in another country, as we've seen with Seacott in El Salvador. I mean, we need our Supreme Court to speak on this and we need it quickly. Yeah.
Behind the Bastards
It Could Happen Here Weekly 184
And there's so many assaults on the Bill of Rights. And we need our Supreme Court to really to step up. And I think I'm not the only one who's extremely frustrated by that because we're in crisis. And as we've seen, it's fallen on courts and lawyers and judges to try to defend the semblance of democracy in this country, but the highest court in the land needs to help out soon. Yeah.
Behind the Bastards
It Could Happen Here Weekly 184
Well, just real quick, another note on the Supreme Court is that they're also concerning. I mean, as we know, there's a lot of Trump appointees there. And so, I mean, it's not even that that's the answer. It's just we're, you know, but we need answers more quickly than what they're giving us.
Behind the Bastards
It Could Happen Here Weekly 184
And it's just given the rate that this administration is working at, I don't know that they will, if they ever get the case,
Behind the Bastards
It Could Happen Here Weekly 184
or the asylum ban at the border would even overturn that because historically they've sort of supported his 212f powers so i'm not saying that's the answer to everything but it's definitely frustrating to not have basic things yeah already decided like the use of the alien enemies act yeah like just not to know where we're at like when you know people are trying in good faith to move forward with the legal processes that they have spent their entire life savings on to get here and do the right quote unquote the right way
Behind the Bastards
It Could Happen Here Weekly 184
I think even mental and emotional support for the immigrants in your life, I think, is something that is underestimated because speaking as a very privileged white woman attorney, U.S. citizen, this has taken a tremendous toll on me and the mental toll that it's taken on the actual undocumented community and asylees.
Behind the Bastards
It Could Happen Here Weekly 184
This messaging is so harmful and so disgusting that I think I would just caution people to not underestimate the power of human kindness to those already in your life and just empowering them, distributing know your rights cards and information that still matters.
Behind the Bastards
It Could Happen Here Weekly 184
But also, I think the people who are, as we've been discussing, going to be at the most disadvantaged in terms of being able to keep up morale are these people who are going to be mandatorily detained. So in terms of what we were talking about, I believe, before we started recording, reaching out to any organizations. I know in San Diego there's Detention Resistance Association.
Behind the Bastards
It Could Happen Here Weekly 184
Or even reaching out to the detention center that's near you to be able to determine how you can send a letter, how you can put money on somebody's books so that they can have phone calls with their family or phone calls with you even. I think these types of things are key in light of the administration's clear messaging that Immigrants are very much unwanted and criminals.
Behind the Bastards
It Could Happen Here Weekly 184
So I think, I think that that's where I would come at this from. If you cannot donate, um, again, like we were talking, if you have a few dollars to spare, I mean, if everybody has a few dollars to spare, there is a finite number, like we were saying of asylum cases left, like from roses. So if people can spare a few dollars here or there, whenever they can, um, it does make the difference.
Behind the Bastards
It Could Happen Here Weekly 184
That's a very good point. I mean, yeah, people are coming already traumatized only to be further traumatized by this administration and the system. And yes, I mean, emotional and mental and any kind of support is not to be underestimated in the slightest during these times.
Behind the Bastards
It Could Happen Here Weekly 184
Absolutely. And just remembering that, again, these asylum cases are finite. So if you know any asylum seeker or can support any asylum seeker right now, They made it in. Let's give them their best shot. Yeah.
Behind the Bastards
It Could Happen Here Weekly 184
Yeah, thank you, James. I think the only thing I just want to emphasize is that, you know, from the standpoint of immigration attorneys, like, I feel that we're obviously a subject of an executive order and, you know, big law firms are being extorted by the administration to represent causes that the administration believes in and not pro bono immigration work and so forth and so on.
Behind the Bastards
It Could Happen Here Weekly 184
So it's not like too many of us have been personally attacked, although, you know, judges have been arrested, even judges for just hiring an immigrant to do work around the house. So, It is a scary time to be practicing immigration law, but unfortunately, I do see there being a time when it won't happen.
Behind the Bastards
It Could Happen Here Weekly 184
I mean, I see the writing on the wall where I will not be able to continue mentally and or economically because a side effect of all this and a very intentional side effect is to make it so that we can't do much for people anymore and or they can't afford us or there's not people here to do anything for because...
Behind the Bastards
It Could Happen Here Weekly 184
their spirit was broken or their finances and, or all of the above and they had to leave. So it is a very intense time, but I came from different areas of law. I've only been in immigration seven years and it's the first time I've thought of, okay, where am I going to go to next in these seven years? And it's, it's a very real thing. So if you, like I said, it feels very different than Trump 1.0.
Behind the Bastards
It Could Happen Here Weekly 184
So, in other words, take care of yourself if you are an ally. Yeah. Because, you know, the attack is on immigrants and anybody who advocates, supports, and so forth. And it's a very targeted, direct attack. And it's very easy to get run down. Yeah. And consumed by it. And so, definitely do what you need to do to take care of yourself.
Behind the Bastards
It Could Happen Here Weekly 184
And if that means stepping back, then, you know... I mean, I want to keep my foot in the door as much as possible these next four years on something immigration and asylum-related, but... there's also economic and other realities that are happening. Yeah. Intentionally so.