Jonathan P. Baird

On June 11, Attorney General Jeff Sessions drastically restricted asylum claims of those fleeing domestic and gang violence. While I think the decision is wrong for both groups, I find the restriction placed on domestic violence victims particularly shocking and heartless. Sessions’ ruling reflects an outdated and misogynistic understanding of domestic violence as “private violence”.

Sessions minimized domestic violence as a crime. He harkens back to a time when domestic violence was seen as a private matter between spouses, something outside the jurisdiction of courts and governments.

It is not an exaggeration to say Sessions’ ruling will return countless women to grave danger and possible death at the hands of their abusers.

Karen Musalo, a lawyer who represents domestic violence victims who seek asylum in the United States, responded to Sessions’ ruling:

“What the decision does is yank us all back to the Dark Ages of human rights and women’s human rights and the conceptualization of it.”

Applicants for asylum to the United States must show they are persecuted because of characteristics such as their race, religion, political opinion or membership in a “particular social group”. Since 2014, the Board of Immigration Appeals had created legal precedent that allowed domestic violence victims to qualify for asylum as members of a “particular social group”.

The survivors of domestic violence could only qualify for asylum though if the violence rose to the level of “persecution” and if the government was unable or unwilling to protect them.

Sessions overturned this legal precedent when he personally intervened in the case of a Salvadoran woman known as Ms. A.-B. (her initials). Ms. A.-B. sought asylum in the United States after she had survived 15 years of physical, sexual and emotional abuse by her husband. During those 15 years, Ms. A.-B.’s husband beat her regularly, including when she was pregnant, and bashed her head against a wall.

Ms. A.-B. had moved to another Salvadoran town, had obtained restraining orders and had divorced her husband but the threats and violence continued. The ex-husband’s brother was a police officer and the government failed to protect her. She fled El Salvador in 2014 after her ex-husband threatened again to kill her and dump her body in a river.

When Ms. A.-B. initially went before an immigration judge who rarely grants asylum, she lost. However, she later won her case before the Board of Immigration Appeals. The Board ruled that the Salvadoran government had shown it was incapable of protecting Ms. A.-B. even after she moved to another town in El Salvador.

Before her asylum status was formally granted, Sessions intervened. He referred the case to himself for review and issued a new ruling. As Attorney General, Sessions has the power to intervene in cases to determine how immigration law is interpreted. He can issue decisions that serve as binding precedents for immigration judges.

In his Ms. A.-B. ruling, Sessions wrote that generally claims on domestic violence will no longer qualify for asylum and will not even reach the initial “credible fear” standard to allow an immigrant to have her claim heard by a judge.

Sessions is effectively closing the courtroom door and locking domestic violence victims out. As he would put it, victims of private criminal activity perpetrated by nongovernmental actors fail to meet the asylum standard.

His ruling could literally invalidate tens of thousands of pending asylum claims. Under immigration law, the rulings of the attorney general are binding on immigration judges unless they are reversed by a federal appellate court.

We must never forget that it was not too long ago that Americans did not view domestic violence as a problem worth talking about. If a man beat his wife, that was viewed as a private affair. Police and the public turned a blind eye. Abusers intimidated their victims into silence.

It has taken almost 50 years of feminist activism to change policies and attitudes about domestic violence. Through that long-term struggle, society came to see domestic violence as a public health and human rights concern – not a private issue. Sessions’ ruling is a dramatic step backwards. It misses the reality that the privacy of violence is exactly the shield abusers have used to escape the consequences of their acts.

Even before Sessions’ ruling, women who were victims of domestic violence were not guaranteed asylum. Their status as domestic violence victims only made them eligible to apply for asylum. In 2017, the national rate for the denial of asylum claims was 61%. What Sessions has done is make the process infinitely more difficult.

Whether Sessions’ ruling will withstand court challenge remains unclear. Even if a federal appellate court overruled Sessions’ Ms. A.-B. ruling, such a decision would only apply in the geographic area of that circuit court. Maybe a case will make it to the U.S. Supreme Court (and who knows what that outcome will be) but in the meantime, Sessions’ ruling will have a devastating effect.

You have to wonder what is next. Will Sessions attempt to roll back legal precedent for other victims of gender-based violence such as LGBT people, victims of female genital mutilation, and forced marriage who seek refuge in the United States?

We have come a long way from Emma Lazarus’s stirring words affixed to the pedestal of the Statue of Liberty:

“Give me your tired, your poor,
Your huddled masses
yearning to breathe free,
The wretched refuse of
your teeming shore.
Send these, the homeless.
tempest-tost to me,
I lift my lamp beside the golden door!”

This piece appeared in the Concord Monitor under the title “American Disgrace”.

Occasionally in politics a story comes along that is so horrifying and morally reprehensible that it commands immediate attention. Such is the Trump Administration’s policy of indefinitely separating undocumented immigrant parents from their children as they cross the U.S. border.

On June 7, Lee Gelernt, the American Civil Liberties Union (ACLU) lawyer litigating the class action challenging the family separation practice, stated he thinks 1500 to 2000 children have been separated from their parents. This includes babies, toddlers and other small children torn from their mothers and fathers.

In the great majority of cases, the children have no idea where their parents are and when they will be able to see them again.

The Trump Administration is traumatizing a huge number of innocent children, putting them at high risk of suffering lifelong negative impacts. In response to the current situation, the American Academy of Pediatrics wrote a letter to Homeland Security Secretary Kirstjen Nielsen, urging the Trump Administration in the strongest possible terms to reject its family-separation policy:

“Separation from the very parents who would provide them with love, stability and reassurance only exacerbates children’s suffering… Fear and stress, particularly prolonged exposure to serious stress without the buffering protection afforded by stable, responsive relationships – known as toxic stress – can harm the developing brain and harm short- and long-term health.”

I am trying to visualize the situation of the detained immigrant children. They are being warehoused and held as prisoners in unsanitary and freezing conditions for months. Rows and rows of children sleep on thin mats behind chain-linked fences. The cells are like dog kennels or large cages. The children and the immigrants call the facilities hieleras or iceboxes. The ACLU just released a report about the level of abuse by Customs and Border Patrol and ICE of children in these hieleras. It is not a pretty picture.

NBC has reported that half of the detained children are under age 12.

When U.S. Senator Jeff Merkley tried to inspect the childrens’ detention conditions in a Brownsville Texas facility, prison operators locked him out and called the police. Sen. Merkley was not allowed to carry out an inspection. The detention center is a former Walmart with blacked-out windows. Not exactly a message of transparency.

Trump’s family-separation policy has no legal basis. Attorney General Jeff Sessions described this Kafkaesque policy as a “zero-tolerance” immigration measure. John Kelly, Trump’s chief of staff, has said the purpose of family separation is deterrence of illegal immigration.

Contrary to past policies in which families were kept together and only detained for a limited time, the Trump Administration has tried to work around time restrictions previously imposed by courts.

The Federal Court in San Diego has now preliminarily refused to dismiss the ACLU class action lawsuit, ruling that the “wrenching separation” of families may violate the Constitution’s guarantee of due process. Under U.S. Supreme Court precedent, family integrity is considered a fundamental due process right. In this case, the Trump Administration has failed to show any compelling government interest in separating parents and children. Nor have they used a least restrictive means to fulfill their interests required under due process law.

For those who may wonder, due process rights do apply to undocumented immigrants. The U.S. Supreme Court decided that in 2001 in the case of Zadvydas v Davis.
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The Trump Administration family-separation policy is premised on a racist dehumanization of those seeking to immigrate to the United States. To treat families in such a cruel fashion is not to accord them rights as fellow human beings. What happened to that old Republican favorite of “family values”?

Trump recently denounced unauthorized immigrants as “animals”. Sarah Huckabee Sanders later corrected her boss, stating, not reassuringly, that he only meant members of the MS-13 gang.

I wish I could say the current family separation policy is an aberration in American history. It is not. It is hard not to be reminded of both Native American and African American history.

In the last third of the 19th century, the government removed tens of thousands of Native Americans from their families and forced them into government-funded boarding schools. In these schools, the Native American children were forced to change their names, learn English, dress like Americans and convert to Christianity. Later in the 20th century, as many as 25 to 35% of native American children were taken from their families with the great majority placed in white households.

Slaveholders sold the children of African American slaves away from their families. Enslaved parents lived with the constant fear that they or their children might be sold away. The destruction of families was one of the most evil aspects of slavery.

The Trump Administration family-separation policy represents a profound devaluation of families of color and is in keeping with the most racist and inhumane traditions of U. S. history. The policy is a disgrace, immoral and likely unconstitutional, and we must do everything within our power to vigorously oppose it.

A new study released by Harvard’s Chan School of Public Health estimated that 4,645 people died in Puerto Rico in the three month period after Hurricane Maria. The government of Puerto Rico is still quoting a death tally of 64 people.

The Harvard study is a figure 70 times higher than the official death count. It is more than double the number of people who died in Hurricane Katrina. The Harvard study ranks Hurricane Maria the deadliest natural disaster to hit the United States in the last 100 years. As the study says:

“Our results indicate that the official death count of 64 is a substantial underestimate of the true burden of mortality after Hurricane Maria.”

While no study like this can be absolutely accurate, the Harvard study is the most reliable accounting to date. The researchers from Harvard worked with graduate students at the Carlos Albizu University and Ponce Health Sciences University in Puerto Rico and others in Colorado and Boston to conduct a survey of 3,299 randomly selected households in Puerto Rico – about 9,522 people.

The researchers asked those surveyed about all deaths and their causes between September 20, 2017, the date of Hurricane Maria, and December 31, 2017. They tried to compare the normal death rate from the year prior to the late 2017 period. The researchers found a 62% increase in mortality in the three months after the hurricane.

How to explain the vast death undercount? The Harvard researchers present a persuasive explanation. What was deadly was not just the storm itself, it was the loss of electricity, power, and cellphone service in the aftermath of the storm which deprived thousands of medical care.

Health care disruption for the elderly and loss of basic utility service for the chronically ill had a devastating impact. Wendy Matos, a physician who supervises 468 doctors working at 29 sites across Puerto Rico has said her clinics saw increases in cardiac arrest and intracranial hemorrhage (bleeding inside the skull), more waterborne and infectious disease and more suicides after Maria.

Dr. Matos blamed lack of access to potable water. More patients presented with illnesses related to drinking water contamination. She also described acute mental health issues. She felt the elderly have suffered the most extreme anxiety and depression.

After the storm, heath care was effectively crippled on much of the island. Even by mid-December 2017, one-third of the island’s 68 hospitals lacked power. As late as March 2018, 11% of Puerto Rico’s community health centers had limited or no power. The researchers wrote:

“Interruption of medical care was the primary cause of sustained high mortality rates in the months after the hurricane.”

The government of Puerto Rico’s way of counting deaths led to a skewed picture of the real harm. The government was not using any guidelines for deciding what was counted as a hurricane-related death. It simply did not count deaths that could not be attributed to direct storm damage itself. Indirect deaths from the worsening of chronic conditions or from delayed medical treatments did not count. The picture presented minimized the damage done.

Puerto Rico was also the victim of a public relations sales job. When President Trump lobbed paper towels two weeks after Maria, he was anxious to brag about a successful relief effort. Trump said only 16 died and he said Puerto Rico had not experienced “a real catastrophe” like New Orleans with Katrina. In an interview on Fox and Friends, he graded himself an A-plus for effort and an A for achievement.

Aware of the disaster Katrina had been for President George W. Bush, Trump wanted to get ahead of the story. I would have to say his scam worked. He pre-empted the disaster by messaging that Maria was no Katrina. Then he and the mass media largely moved on and forgot Puerto Rico.

This is an instance where a false narrative of recovery governed and still governs popular perception. The storyline of recovery overshadows facts on the ground. The public stopped paying attention.

By almost any measure, the federal response has been a fiasco. Recovery has been conducted at a snail’s pace. On average, Puerto Ricans went 84 days without electricity, 68 days without water and 41 days without cellphone coverage after the storm. According to the Washington Post, 20,000 residents in remote areas of the island are still without power.

I think we can safely say that if such a performance had occurred on the U.S. mainland, it would have been deemed absolutely unacceptable. The federal government was underprepared for the storm. It failed to properly position supplies in advance and it failed to make provisions for military assets. Puerto Rico had a frail infrastructure even before the storm.

Considering the history of increasingly powerful storms to wrack the Caribbean and the Gulf areas, there was an anti-scientific dimwittedness behind the poor response. You have to wonder how many more monster storms will it take before climate change is even acknowledged.

There are deeper dimensions to this tragedy as well. Puerto Rico exists in a political twilight zone. Although it is called an unincorporated territorial possession, it is actually a colony of the United States. Even though the Puerto Rican people are U.S. citizens, they have no representatives in Congress or the Senate. Puerto Rico has no votes in the Electoral College and Puerto Ricans on the island cannot cast votes for President in the general election.

The political powerlessness of Puerto Rico makes it easier to ignore the crisis on the island. Politicians do not worry about blowback because the island can’t vote.

Adding to its invisibility, Puerto Rico’s military value has disappeared. Puerto Rico is less consequential now because the U.S. has no rival in the Southern hemisphere as it previously did with the Soviet Union and Cuba.

I think the racial dimension also deserves mention. Puerto Rico is 99% Latino. In an administration that panders to anti-immigrant sentiment and white supremacy, Puerto Rico remains a low priority. Neglect is the outcome.

June 1 marks the start of a new hurricane season which is a frightening prospect. The experience of Hurricane Maria and its ongoing legacy is beyond sobering. It is hard not to worry about history repeating itself.