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Court orders return of gay immigrant to U.S. after Christmas nightmare deportation

Mexican national comes home to husband as HIV meds run out

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Michael Young with his spouse and gay asylum seeker Carlos Bringas-Rodriguez (Photo courtesy of Immigrant Defenders Law Center)

A gay Mexican immigrant who sought asylum in the United States, but was deported over the recent Christmas holiday despite a court order in his favor, was retrieved Tuesday after a nearly one-month ordeal in which the Trump administration ignored rulings on his behalf.

Carlos Bringas-Rodriguez, who’s gay and HIV positive, is an asylum seeker from Mexico, who was deported Dec. 22 at 3 a.m. and literally dumped at the border with a limited supply of his HIV medications.

U.S. Immigration & Customs Enforcement deported Bringas-Rodriguez even though the U.S. Ninth Circuit Court of Appeals in March determined the persecution he faced in Mexico because of his sexual orientation made him eligible for asylum in the United States.

The Department of Homeland Security removed Bringas-Rodriguez on the basis that he missed a court appearance for asylum โ€” an appearance for which he never received notification โ€” taking him away from his spouse in Kansas City, Michael Young, aย U.S. citizen. The couple cares for Bringas-Rodriguez’s 12-year-old cousin as a daughter.

The U.S. government only agreed to allow Bringas-Rodriguez, who also goes by Patricio Iron-Rodriguez, to return to the United States after a subsequent order from the Ninth Circuit on Thursday instructing DHS “to return petitioner to the United States through the Port of Entry at San Ysidro, California, no later than January 16, 2018.”

Bringas-Rodriguez said in a statement to the Blade prior to his retrieval he was relieved the nightmare of being separated from his family over the holidays would end soon.

“I have mixed emotions right now,” Bringas-Rodriguez said. “I am still very traumatized and shaken up from being deported and separated from my family. But I am of course relieved that this nightmare will soon be over and cannot wait to be reunited with my husband and our niece who is like my daughter.”

Young, a physician, expressed his frustration in a statement that his spouse “was taken away from me three days before Christmas, in the dead of night without my knowledge.”

“My husband has been fighting his case for over six years and has cooperated with immigration authorities throughout,” Young said. “As his husband, I am suffering because I do not know when we will be reunited; as a physician, I am terrified that his unlawful deportation will have irreparable consequences to his health. I am just relieved that the Ninth Circuit recognized the wrong done here and has ordered the government to return my husband to me.โ€

Representing Bringas-Rodriguez is Munmeeth Soni, co-legal director for the Los Angeles-based Immigrant Defenders Law Center, who confirmed he was paroled Tuesday and said his treatment was “not just cruel, but inhumane and outrageous.”

Bringas-Rodriguez first came to the United States in 2010 after suffering persecution in Mexico over his sexual orientation and has been fighting his asylum case ever since. In his hometown of Veracruz, Bringas-Rodriguez was repeatedly raped and sexually abused by his relatives and neighbor.

If Bringas-Rodriguez were forced to remain in Mexico, Soni said he’d face the same anti-gay persecution he endured years ago, only worse.

“There’s even more of a likelihood that it would be at the hand of strangers,” Soni said. “It could be at the hands of the police, or the military, and I think…because of his HIV condition, he definitely faces significant risk of being killed.”

Even without his recent deportation to Mexico, Bringas-Rodriguez’s case for asylum has been a trial. Bringas-Rodriguez first applied for asylum when he initially came to the United States when immigration officials detained him.

The San Diego immigration court where he first made his case denied him asylum because he couldn’t show the Mexican government would have been unwilling or unable to protect him. Part of the reason the case was denied was because of a Ninth Circuit precedent in the 2011 ruling of Castro-Martinez v. Holder against a gay, HIV-positive asylum seeker from Mexico.

On appeals to the Board of Immigrations Appeals, Bringas-Rodriguez again lost his case. When he tested positive for HIV, Bringas-Rodriguez sought a second chance before the board on the basis he was now in a higher category of persecution, but the outcome was no different. (The HIV infection happened not in Mexico, but the United States. He tested positive for the first time at age 23.)

In 2013, Bringas-Rodriguez took another chance before the Ninth Circuit. Up until that time, Bringas-Rodriguez was representing himself, but now was appointed pro bono counsel at the University of California, Irvine. That was when Soni, an adjunct professor at the school, became involved in the case.

The initial decision from the three-judge panel at the Ninth Circuit was against Bringas-Rodriguez on the basis of the 2011 decision. But when the full court agreed to rehear the case, the outcome overturned precedent and was in his favor, remanding the case to immigration court for reconsideration.

“We granted rehearing en banc and now hold that the evidence Bringas adduced before the agency โ€” credible written and oral testimony that reporting was futile and potentially dangerous, that other young gay men had reported their abuse to the Mexican police to no avail, and country reports and news articles documenting official and private persecution of individuals on account of their sexual orientation โ€” satisfies our longstanding evidentiary standards for establishing past persecution and compels the conclusion that Bringas suffered past persecution that the Mexican government was unable or unwilling to control,” the court determined.

Soni said the decision was “beyond positive” because it didn’t just favor Bringas-Rodriguez, but has far-reaching implications.

“It really has been an extraordinary decision for anybody, any person who’s experienced anything that Bringas has experienced,” Soni said.

In summer 2014, Bringas-Rodriguez had moved from San Diego to Kansas City to be with his now husband Young. Prior to that, he had been put on a rigorous supervised system similar to prison probation where DHS monitors his movement and must be informed if he ever leaves the. Soni said Bringas-Rodriguez fastidiously kept up with the requirements.

But his asylum process technically wasn’t over because the immigration court had ruled as a result of the Ninth Circuit order. The U.S. government was given another chance to present evidence against his case, but in the event that didn’t happen, Bringas-Rodriguez would be allowed to stay.

Bringas-Rodriguez checked in with ICE in June and was told the next time he’d need to do so was Dec. 20. But in the meantime, unbeknownst to him, his case was scheduled for a new hearing on Aug. 20 in immigration court in San Diego. DHS showed up for the hearing, but Bringas-Rodriguez didn’t.

As a result, the immigration court issued a deportation order against Bringas-Rodriguez on the basis that his failure to appear demonstrates he’s abandoned his asylum application.

The immigration court is required to send a notice to the person’s address to notify them to appear. Although Soni said they supposedly did that, it may have been sent to a different address in San Diego because Bringas-Rodriguez never received it, nor did he obtain a copy of the deportation order. There’s no certification of service for either document, Soni said.

There’s some dispute as to whether any notice went out. In subsequent communications, Soni said ICE confirmed with the law firm there’s no evidence Bringas-Rodriguez was properly served even at the wrong address in San Diego.

The U.S. government, Soni said, never bothered to inform the immigration court at the hearing DHS is aware of Bringas-Rodriguez’s location and that he wasn’t trying to abscond after putting seven years into his asylum case. DHS also knew the immigration court didn’t send the notice to the right address, but didn’t bring that up, Soni said.

Bringas-Rodriguez’s absence from the hearing about which he was unaware had major consequences when he showed up for his next check-in on Dec. 20.

“He’s immediately detained, and they tell him he’s getting deported,” Soni said. “He has no idea what they’re talking about, and they’re like, ‘Oh yeah, you missed your court hearing, and so obviously you’re getting deported because you didn’t show up.'”

Bringas-Rodriguez called his husband, who in turn called Soni, who’s able to piece together what happened and was able to obtain new local counsel, Rekha Sharma-Crawford of the Sharma-Crawford law firm in Kansas City.

Finalizing the motion to reopen his case, Sharma-Crawford law firm sent the document on Dec. 22. But it’s too late for the holiday season. The San Diego immigration court, without notification to the public, decides to close at 1 p.m. and so the courier couldn’t file the motion at the time. The motion isn’t filed until after Christmas on Dec. 26.

Despite the initial notification at the ICE office, deportation proceedings against Bringas-Rodriguez were underway while he was in detention. He was shackled and taken by plane to Mexico. Officials left him little more than his cell phone and the limited supply of HIV meds given to him by his spouse.

“He was getting deported as were we trying to file this motion to reopen,” Soni said. “By the time we had filed, he had been physically removed from the country.”

That deportation process wasn’t known to either Bringas-Rodriguez’s attorneys or his husband. Soni said on Dec. 22 she received a phone call from Young, who told her he had just heard from Bringas-Rodriguez in Mexico and wouldn’t let him call anyone before that happened.

Soni said Bringas-Rodriguez was stranded in Mexico with a couple weeks supply of his HIV medication that he obtained from his spouse while in immigration detention.

“Our client from there went to this shelter that night, stayed at that shelter until his husband could buy him a ticket to move on there because he was in a border town, and border towns are really dangerous,” Soni said.

The first destination for Bringas-Rodriguez was Veracruz because his grandmother lives there, but that was the place he suffered abuse for being gay and he didn’t want to stay. He left for Oaxaca City, another town that’s a tourist destination where he could be relatively safe, then left for Tijuana.

Soni said attorneys tried to work with DHS officials in San Diego, but after a week of radio silence, decided to take the issue back up with the Ninth Circuit with a writ of mandamus on the basis the lower court had totally ignored the judge’s order.

“In Mexico, petitioner is currently terrified and holed-up in a hotel and quickly running out of his HIV medications; he has no way to get these medications when they run out in the next 9 days,” the writ says. “Since petitioner was not allowed to contact anyone immediately prior to his removal and DHS calculatingly kept that information from his attorneys and his family, no one was able to make medical arrangements for petitioner.”

The Ninth Circuit allowed 24 hours for a response from the U.S. government, which โ€” for the first time โ€” started negotiating with the attorneys and asked to drop the writ because the San Diego immigration court had rescinded its order on the same day.

“We felt very strongly that we weren’t going to give them the benefit of the doubt because, up until this point, they had not been acting with us in good faith, and just also given the fact that our client’s life was on the line,” Soni said. “I’m glad we did that because ultimately, I think, we’ve gotten a faster resolution through the Ninth Circuit.”

The response to the writ of mandamus filed by Acting Assistant Attorney General for Civil Division Chad Readler made no reference to Bringas-Rodriguez’s dwindling supply of HIV meds even though that was the basis of argument presented to the Ninth Circuit.

“[A]ny alleged error in the Immigration Judgeโ€™s in absentia ruling has now been remedied, as the immigration judge has reopened proceedings and Mr. Bringas-Rodriguez will be provided further hearings on the merits of his claim,” the brief says. “As Mr. Bringas-Rodriguez has an available remedy, mandamus is not warranted.”

Soni said the U.S. government attorney didn’t think the dwindling supply of HIV meds was a big deal and said the family could ship them to him to Mexico โ€” demonstrating a lack of knowledge of laws against sending medication outside the United States as well as difficulty of obtaining HIV treatment across the border.

“That’s exactly what all our arguments and our briefs were about and it’s as though this man didn’t even bother reading it,” Soni said.

Within hours of the government filing its brief at 4 p.m., the Ninth Circuit issued the order demanding DHS reclaim Bringas-Rodriguez, give him his medications, and take him back to Kansas City.

“We’re very, very, very lucky, but I also think that the court here was not pleased at all with how the government has treated Patricio, and how they just sort of ignored the order in the first place,” Soni said.

The order came in the nick of time. Soni said Bringas-Rodriguez took his last HIV pill two days before he was ultimately retrieved.

Lauren Mack, an ICE spokesperson, responded with a statement on the facts of the case in response to the Washington Blade’s request for a comment on why ICE allowed the deportation.

“According to DHS database records, officers with ICEโ€™s Enforcement & Removal Operations San Diego removed Carlos Alberto Bringas-Rodriguez to Mexicoย Dec. 22,” Mack said. “An immigration judge with the Department of Justiceโ€™s Executive Office for Immigration Review issued Mr. Bringas-Rodriguez a final order of removalย Aug. 22, which served as the basis for his removal.ย A motion to reopen his case was filed Dec. 26, and proceedings in his case are ongoing.”

The Department of Justice didn’t respond to the Blade’s request for comment.

As a result of the U.S. Supreme Court’s 2013 decision against the anti-gay Defense of Marriage Act, U.S. citizens in same-sex marriages, like Americans in opposite-sex marriages, can sponsor their immigrant spouses for Green Cards with an I-130 application. Soni, however, said Bringas-Rodriguez wasn’t eligible because he’s subject to the permanent bar and would have to wait 10 years outside of the country before that would be an option.

Soni said the next steps in the case aren’t settled. Although Soni said suing for damages is a “good conversation that we might have,” the main task at hand as of Tuesday was retrieving Bringas-Rodriguez from Mexico.

But was the mess of immigration laws in the United States to blame for the nightmare scenario, or something else? Soni said the Trump administration’s anti-immigration policies bear the responsibility for the scenario.

“I’d like to think that they wouldn’t have done that under the prior administration, but that under this administration, given the tenor of both Trump as well as [U.S. Attorney General Jeff] Sessions against immigrants, irrespective of whether they’re here lawfully or not, or who they are, or what they’ve done for the communities, the bottom line is to deport them,” Soni said.

Deportations are rising under the Trump administration. According to the Associated Press,ย nearly 54,000 immigrants were deported from the interior last year between Jan. 22 and Sept. 9 โ€” a 34 percent increase over the same period in 2016.

Soni added, “there’s truth to the fact” that low-level immigration officials feel empowered deport immigrants with Trump at the helm.

“To a certain degree, DHS and DOJ thought they could get away with this, that they would not be held to task,” Soni said.

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Eastern Europe

Former Ambassador Daniel Baer explains it all on Ukraine crisis

Expert downplays strategic thinking behind Putin’s move

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Daniel Baer, United States Department of State, Bureau of Democracy, Human Rights and Labor, gay news, Washington Blade
Daniel Baer served as U.S. ambassador to the Organization for Security & Cooperation in Europe. (Blade file photo by Michael Key)

Daniel Baer, who worked on LGBTQ human rights and transatlantic issues as one of several openly gay U.S. ambassadors during the Obama administration, answered questions from the Washington Blade on Ukraine as the international crisis continues to unfold.

Topics during the interview, which took place weeks ago on Jan. 27, included Putin’s motivation for Russian incursions, the risk of outright war, predictions for Russia after Putin and how the crisis would affect LGBTQ people in Ukraine.

Baer was deputy assistant Secretary of State for the Bureau of Democracy, Human Rights and Labor and U.S. ambassador to the Organization of Security & Cooperation in Europe.

The full interview follows:

Washington Blade: What’s your level of engagement with this affair? Are you doing any consulting work? Is the administration reaching out to you at all?

Daniel Baer: I actually think the White House is doing a pretty good job of recognizing that they need to not only have press conferences, but also talk to other people who are trying to figure out how to be constructive critics, idea generators from the outside.

Blade: OK, so youโ€™re being solicited and engaging on this issue. My next question for you is why do you think Putin is doing this at this time?

Baer: So, I guess taking a step back from the whole thing, one of the things about a problem like this is that everybody is searching for the right answer assuming that there is a like comfortable or compelling or intellectually accurate answer, and I actually think we’re just in a really hard moment.

I don’t know why he’s doing it now. And in fact, I think that one of the puzzles that we haven’t solved yet is that all the things that he says are the reasons that he’s doing it โ€” that he feels encirclement by NATO, … or that the situation in Ukraine is untenable โ€” none of those things have changed. Setting aside the fact that they’re spurious, it’s not like there’s been some new move in the last 12 months that has precipitated [a reaction] on any of those fronts that you can say, “Oh, well, he’s responding to the recent meeting where Ukraine was offered membership in NATO, or he’s responding to a change in government in Ukraine that it’s clearly anti-Russia, or any other move that we’ve done.โ€ The explanation just doesn’t hold water, and so I think we need to look for alternative ones.

The best I can come up with is actually just a broad โ€” it doesn’t actually explain this particular moment, but I think you could look at the timing of his life. He has, I don’t know, 10 years left. And during those 10 years, it’s unlikely that Russia is going to grow more powerful; it’s much more likely that it’s going to become at least relatively and probably nominally less powerful. And so, if you’re unhappy with the status quo, and you feel like you’re a declining power, and you don’t have endless time, there’s no time like the present. And you’ll make up whatever reasons you need to in order to justify it.

I also think there’s a tendency on our part to attribute far more “strategery” to Putin than there necessarily is. I mean, he’s a bully and a thug. I think the whole Putin’s playing chess and we’re playing checkers is actually completely inverted. We’re in our own heads that there’s some kind of nuanced position that would mollify him. He’s just a gangster and he’s taking a punch because he has one. And I don’t think it gets much more complicated than that. And so, I guess the answer to why he’s doing this now, because the international conditions are such that he feels like the United States is focused domestically, the Ukrainians are not moving forward with succeeding to build โ€” they’re kind of in stasis on building a European stateโ€” and he has, you know, he has the space to take a punch, so he’s contemplating doing it, or he’s already decided to do it. And he’s just extracting as much as possible before he takes it.

Blade: That leads me to my next question: What is your judgement of the risk of out and out war?

Baer: I don’t know because I have two hypotheses that cut both ways. One is that I think Putin is vastly underestimating the degree of resistance. On the other hand, I think that nothing short of domination is satisfactory. And so, I don’t know. I guess I think there’s a 90 percent chance that he does something, and I think there’s a 75 percent chance that what he does is not an all out invasion or ground invasion, at least not at first, but rather something that is aimed at confusing us. So some sort of hybrid or staged or false flag kind of attack in tandem with a political coup in Kiev, where he works to install a more Russia-loyal leader.

The thing with the ground invasion is that Russian soldiers’ moms are one of the only, like, powerful political forces in civil society in Russia. I just don’t see any way that a ground invasion doesn’t involve massive Russian casualties, even if they will be dominant. The people who are going to impose the consequences on him will be the Ukrainians, not the rest of us, and he should not invade, and if he does, we should, frankly, work hard to make it as painful and difficult for him as possible.

Blade: What will that look like?

Baer: I think we should at that point continue โ€” we shouldn’t pause, we should continue to send the defensive equipment and backfill as much as possible their ability from an equipment basis to resist.

Blade: So if we were to look at a model for past U.S. engagements. I’m thinking Greece under President Truman, which was so successful that nobody really knows about it, I don’t think. Is there any model we should be looking toward, or not looking toward?

Baer: No, I guess. I’m not sure there’s any good historical model because obviously, any of them you can pick apart. I do think that one thing that has gotten lost in a lot of the analysis โ€” and this goes back to Putin being a gangster thug, and not being such a genius โ€” is there’s a moral difference between us. The reason why Putin gets to control the dialogue is because he’s willing to do things that we aren’t willing to do โ€” as gangsters are, as hostage-takers are โ€” and so yes, they get to set the terms of what we discussed, because we’re not holding hostages. We’re trying to get hostages released. And the hostage-taker has an upper hand and asymmetry because they are willing to do something that is wrong.

We shouldn’t lose the kind of moral difference there. Nor should we lose sight of the fact that Ukraine is being menaced. And I’m not saying it’s our obligation [to intervene militarily], certainly not our obligation. They aren’t a treaty ally. We have neither a political obligation nor a moral one to necessarily risk our own lives, our own soldiers in defense of Ukraine. But if Ukraine wants to defend themselves, there’s a strong moral case to be made that anything, short of risking our own lives, is something that is morally good. We generally believe that self-defense from lethal threat is a reasonable moral cause and assisting others in defending themselves is too โ€” I think there’s a lot of back and forth that get glossed over whether that’s a provocation or whatever, and I want to say to people stand back, look at this: weโ€™ve got one party that is attacking another. And the question is, does the other have a right to defend itself? Yes. And if they have a right to defend themselves, and they also have a right to have whatever assistance people will offer them in defending themselves.

That doesn’t mean that they get to demand that we show up and fight in the trenches with them, of course, and I don’t think there’s any serious people who are recommending that but it’s a good thing to help them. It’s not like a technical thing. It’s a good thing to help

Blade: Getting into that moral background, one thing I want to ask you was about the significance of what would happen in this concept of democracy versus autocracy. First of all, how much is Ukraine a functional democracy, in the sense that if we’re defending Ukraine, we are defending a democracy, and what signal do you think it would send if that Ukrainian government fell to Russian autocracy?

Baer: I think the institutions of government that the Ukrainian people have are not worthy of the Ukrainian people’s own demonstrated commitment โ€ฆ

They are not worthy of the Ukrainian people’s own demonstrated commitment to the idea of democratic institutions. So the answer is today’s Ukrainian government is a mixed bag and it’s very hard to build, on the rot of a Russian fiefdom, a functioning democracy, so I think it’s a mixed bag. I don’t want to sound like I’m minimizing [the changes], or that they’ve completely bungled an easy project. It was always going to be a hard project, and it was never going to be linear.

But I think that what we’ve seen from the Ukrainian people โ€” by which I mean not Ukrainian people, but people of Ukraine โ€” is that there is a broad part of society that a) does not want to live under a Russian thumb and b) sees its future in kind of European style democracy. And so I think that if there was, there’s no question that the Russian attack would be in part about subjugating the people of Ukraine and forcing them to live under some sort of new Russian satellite. And I think that there’s little space for serious argument that that’s something that the people of the country wish to have.

Blade: But I’m just kind of getting at โ€” you’re kind of minimizing that this is a strategic move by Putin, but if he were to successfully dominant Ukraine it becomes a Russian satellite isn’t that saying like, “Well, ha ha West, you thought the Cold War was over and there’s going to be just be a unipolar world in the future but no, we’re gonna we have this we’re back and we’re gonna create a multipolar world for the future.”

Baer: Yeah, I mean, my answer to the Russians who always raise the multipolar world to me is, “Fine, it’s going to be a multipolar world. What makes you think that Russia is one of the poles?” Poles by definition draw people to them, they are compelling and a pole attracts, magnetically or otherwise, and there is nothing attractive about the model that Russia is pursuing. And if the only way that you can be a pole is by subjugating, to force your neighbors, you are proving that you are not one.

I think the benefits for Russia are far smaller than Putin thinks and I think the consequences for the rest of the world of allowing a violation of international order to go forward are much larger than many people recognize.

Blade: But that was their approach when they were the Soviet Union. They were subjugating the Eastern Bloc through Russian force. They did have, in theory, the concept of their worldview of you know, of socialism, or whatever you want to put it charitably, was going to be the right way to go. Is there really that much of a difference?

Baer: Yeah, however disingenuous it was, they did have an ideology . So you’re right, that was a key distinction. The other thing is that the Soviet Union in relative size โ€” its economy and population etc. โ€” was much larger than Russia is today. And Russia is shrinking, and its economy is less diverse than the Communist one was. I think it’s a delusion to think that they’re going to kind of rebuild an empire, even if yes, because of their willingness to do awful things, they could potentially for a time politically control through violence, their neighbors. I just don’t โ€” in a multipolar world, I don’t see Russia being one of the poles, at least not on its current path.

Blade: How would you evaluate the U.S. diplomatic approach to this issue?

Baer: There’s been very clear over-the-top effort to include the Europeans at every step โ€” meetings with them before each meeting and after each meeting, to force conversations into fora that are more inclusive and stuff like that. And I think that Secretary Blinken is rightly recognizing the need to kind of play a role of kind of keeping everybody on the side while we test whether diplomacy whether there’s anything to do, whether there’s any promise with diplomacy.

I think there’s kind of, sometimes kind of, two camps in U.S. foreign policy circles. One is like: We should give the Russians what they want because it just doesn’t matter that much. War is much worse than anything that we would give them. And another is that we can’t give them an inch and we have to punch them in the face whenever we can. And I think both of those are kind of knee-jerk positions that have become a bit religious for people and neither of them is paying attention to the practical challenge that’s in front of the administration, which is like this guy’s threatening to invade and we need to identify whether there’s any opportunity for a functional off ramp, and that doesn’t mean we do that in a vacuum and ignore the long-term consequences, but our problem is not a religious one, it’s a practical one. And I think they’re doing a pretty good job of threading the needle on that and being not too far forward and not too far back.

Blade: Do you see any significant daylight between the United States and Europe?

Baer: No, I mean, no more than the minimum that is possible. There’s a lot of talk about Germany these days. Look, I think some of the things they say are not particularly helpful, but I don’t actually think that in the long run, if Putin invaded, I don’t think that they would hold up sanctions or anything like that. So I think they’re on our side, even if they’re talking out of both sides, in some cases.

Blade: I am wise to the fact that this is a nuclear power. It might be a little old school, but could escalation get that far?

Baer: There can’t be war. There can’t be war between NATO and Russia. It should be avoided. Obviously, there can be, but it should be avoided.

Blade: How committed do you think President Biden is to protecting Ukraine?

Baer: Reasonably so. I think he’s enough of an old school trans-Atlantist that he understands that this isn’t just about Ukraine.

Blade: I was wondering because he had those comments from his press conference about “minor incursion” and I’m just wondering if you’re reading anything into that or not.

Baer: No, I think that was that was a โ€” I think broadly speaking, everything he says is in line with the kind of view that you would expect. And of course, one sentence can catch [attention]. That wasn’t what he meant. What he meant was that he didn’t want to draw a “red line” that would prejudge policy in response to something short of the most extreme scenario.

I think it is a good caution to not obsess over a single sentence and to look at the broad considered policy statements.

Blade: What do you think if you were looking for developments, like what would you be looking out for is significant in terms of where we are going to be going in the near future? This is one thing to keep an eye out for but is there anything else that you are kind of looking out for in terms of the near future?

Baer: I guess I would look out for whether or not the United States joins meetings of the so-called Normandy Format, which is the France, Germany, Ukraine and Russia grouping, which has so far been unsuccessful, but I think can only be successful as the United States joins it, but the Russians, I think have misgivings with the idea of our joining it.

Blade: I’m not at all familiar with that. What makes this forum particularly so โ€”

Baer: So it was started in the summer in like June of 2015, on the margins of some meeting between Merkel and Hollande. The French and the Germans are very committed to the idea that they might be able to mediate peace between Ukraine and Russia. It was supposed to implement the Minsk Agreement, and it just hasn’t been productive so far. I don’t think that the Russians will do anything โ€” I don’t think the Ukrainians feel comfortable negotiating anything without the Americans at the table. And I don’t think the Russians feel like anything is guaranteed without the Americans at the table. So I just, I’m fine with France and Germany taking the lead, but I think the U.S. has to be there.

And there was a meeting of this group in Paris yesterday, and which the U.S. was supportive of, and so I’m watching to see whether or not the United States gets added in some ad hoc way, whether there are future meetings. I guess the reason I would watch it, if the U.S. were to join future meetings that would signal to me that it’s actually there’s some diplomacy happening there.

That’s meant to be focusing mainly on the existing Russian invasion, the occupation of the Donbas, so that’s not about the threat of the new invasion, but it would be interesting to me if there was forward movement on other parts of Ukraine. The announcement of the American ambassador is one. I think that last week movement of troops into Belarus was a game changer for the U.S., because there are all kinds of new implications if you’re using a third country as your launchpad for war, and so it complicates things and it also looks more serious if you’re starting to deploy to third countries and stuff like that. So I think that was that last week, you noticed a difference in the U.S. tone and tenor in response to that.

So things like that. But in general, like what I would do and I don’t think people always catch this is because there’s a boiling frog aspect to it. There are statements coming out from the White House or State Department. Almost every day on stuff related to this and like last week, there was a noticeable change in the tenor as the U.S. became less, I think more pessimistic about the prospects of diplomacy and those I don’t have anything better to look for in those statements as tea leaves, in terms of what the U.S. assessment is of the prospects of the escalation are, so it’s bad.

Blade: Right. That’s very sobering.

There’s a lot of talk, and I’ve just been seeing some like about in terms of, there’s like comparisons to Afghanistan and making sure that all Americans are able to get out of Ukraine. Is that comparing apples to oranges?

Baer: Yes.

Blade: And could you unpack that a little bit? I mean, I can kind of guess the reasons why. How is that apples to oranges?

Blade: Well, the level of development in Ukraine in terms of infrastructure and transport and stuff like that is not comparable to Afghanistan. I think it would be– if there were a Russian invasion–you would definitely want to, obviously, for safety reasons, it’s not safe to be in a war zone, so you would want people to be able to evacuate and you’d have to plan for that.

A major concern [in Afghanistan] was also that there were tens of thousands, if not hundreds of thousands of locals who had worked for the Americans. The Americans that are in Ukraine are not a departing occupying power. There’s just not the same footprint there โ€” the Americans are in Ukraine or there as business people or young [people working on] democracy assistance or whatever. And it’s just it’s a different context.

Blade: Why do you think the Russians put up with Putin? I mean, this is a country that was a world power and I would think has some economic potential just given its sheer size, first of all, and they do have oil to offer people. So why aren’t the Russians like angry at him for obstructing their participation in the global order as opposed to just putting up with him for years and years and years.

Baer: Successful instrumentalisation of cynicism. The lack of a belief in an alternative will keep you from fighting for it.

Blade: That’s pretty succinct.

Baer: I mean, I don’t think there’s any question that the people of Russia could be better off or different in terms of kitchen table issues, and ease of navigating the world, prospects for their future for their children’s future. The amount of money that Putin has invested into military modernization that Russia can ill afford, while he’s cut pensions and social services and health care. It’s just it’s objectively true that the average Russian person would be better served by a different leader. But he’s done a very good job of effectively selling off the country for profit and persuading people through repression and propaganda that there is no alternative.

Blade: And Putin won’t be around forever. Once he finally goes, is an alternative going to emerge, or will it be the next guy in Putin’s mold?

Baer: I think it’s far from clear that what comes after Putin isn’t worse and bloody. Regimes like this don’t reliably have stable transitions.

Blade: Wow, okay.

Baer: Yeah, we shouldn’tโ€ฆ we should be careful about wishingโ€ฆ wishing for his demise.

Blade: That’s good to know. It’s kind of a frightful note for me to end my questions. But actually before I sign off, there’s one more thing too because I do kind of want to talk about the intersection about your old job in democracy and human rights and then a Venn diagram of that with your experience in Eastern Europe in particular. Do you have a sense of what’s at stake for LGBTQ people in Ukraine or if they’re in more danger right now than they would be otherwise?

Baer: That’s a good question. I mean, my knee jerk reaction is yes. That โ€” as mixed of a picture as Ukraine has been in the last seven years, or eight years โ€” there have been meaningful steps forward, and certainly, in terms of visibility.

I guess, in the sense that Ukraine is better than Russia today, if you’re gay, if Russia is going to occupy or control Ukraine we can expect that it will get worse because it will become more like Russia.

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Trump ribbed Pence for thinking ‘it’s a crime to be gay,’ new book says

Former president openly wanted gay Fox News analyst for Supreme Court

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Donald Trump (left) ribbed former Vice President Mike Pence (center) in a meeting with Andrew Napolitano for thinking "it's a crime to be gay." (Blade photos of Donald Trump and Mike Pence by Michael Key; screen capture of Andrew Napolitano via Fox News YouTube)

Donald Trump, in the days before he took office after the 2016 election, openly contemplated naming an openly gay Fox News contributor to the U.S. Supreme Court amid concerns from social conservatives about his potential choices and ribbed former Vice President Mike Pence for thinking “itโ€™s a crime to be gay,” according to the new book “Insurgency” detailing the former president’s path to the White House.

The key moment between Trump, Judge Andrew Napolitano and Pence took place during the transition period after the 2016 election when Trump invited the other two for a meeting at Trump Tower.  That’s when Trump reportedly took the jab at Pence.

“During their meeting, for part of which Mike Pence was present, Trump ribbed Pence for his anti-gay rights views,” the book says. “Addressing Napolitano, Trump gestured toward the archconservative vice-president-elect and said, ‘Youโ€™d better be careful because this guy thinks itโ€™s a crime to be gay. Right, Mike?’ When Pence didnโ€™t answer, Trump repeated himself, ‘Right, Mike?’ Pence remained silent.”

The potential choice of Andrew Napolitano, who was fired last year from Fox News amid recently dropped allegations of sexual harassment from male co-workers, as well as other TV personalities Trump floated for the Supreme Court, as detailed in the book, were among the many reasons conservatives feared he wouldn’t be reliable upon taking the presidency. Ironically, Trump would have been responsible for making a historic choice for diversity if he chose a gay man like Napolitano for the Supreme Court, beating President Biden to the punch as the nation awaits his selection of the first-ever Black woman for the bench.

The new book โ€” fully titled “Insurgency: How Republicans Lost Their Party and Got Everything They Ever Wanted” and written by New York Times political reporter Jeremy Peters, who is also gay โ€” identifies Trump’s potential picks for the judiciary as a source of significant concern for conservatives as the “Never Trump” movement was beginning to form and expectations were the next president would be able to name as many as four choices for the Supreme Court. Among the wide ranges of possible choices he floated during the campaign were often “not lawyers or judges he admired for their legal philosophies or interpretations of the Constitution,” but personalities he saw on TV.

Among this group of TV personalities, the books says, were people like Fox News host Jeanine Pirro, whom Trump “regularly watched and occasionally planned his flight schedule around, directing his personal pilot to adjust the route accordingly so the satellite signal wouldnโ€™t fade.” Trump told friends Pirro “would make a fine justice,” the books says.

Trump potentially making good of his talk about naming Napolitano as one of his choices for the Supreme Court “would have been doubly unacceptable to many on the religious right,” the book says. Napolitano, a former New Jersey Superior Court judge, was friendly with Maryanne Trump Barry, Trump’s sister and a federal judge with a reputation for liberal views, such as a ruling in favor of partial-birth abortion, and is also gay, both of which are identified in the book as potential concerns by the religious right.

Napolitano and Trump were close, the book claims. Napolitano, as the book describes, had a habit of telling a story to friends about Trump confiding to him the future president’s knowledge of the law was based on Napolitano’s TV appearances. Trump told Napolitano: โ€œEverything I know about the Constitution I learned from you on Fox & Friends,” the book says.

The book says the meeting with Trump, Pence and Napolitano when the former president took a jab at Pence in and of itself suggested Trump “was indeed serious about giving the judge some kind of position in the government.” Napolitano, known for making outlandish claims as a Fox News contributor โ€”such as the British government wiretapped Trump Tower โ€” never took a post in the Trump administration.

The new book isn’t the only record of Trump ribbing Pence for his anti-LGBTQ reputation. A New Yorker profile in 2017 depicted a similar infamous meeting with Trump and Pence in which the former president joked about his No. 2’s conservative views. Per the New Yorker article: “When the conversation turned to gay rights, Trump motioned toward Pence and joked, ‘Donโ€™t ask that guyโ€” he wants to hang them all!'”The incident described in “Insurgency” was similar to the meeting detailed in the New Yorker profile.

Trump ended up making a list of names he pledged he’d limit himself to in the event he was in the position to make a selection to the Supreme Court and made good on that promise based on his selection. By the end of his presidency, Trump made three picks to the bench who were each confirmed by the U.S. Senate: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. 

But Trump limiting his options to the list of potential plans was not a fool proof plan for conservatives. To the surprise of many, Gorsuch ended up in 2020 writing the majority opinion in the case of Bostock v. Clayton County, a major LGBTQ rights decision by the U.S. Supreme Court, which determined anti-LGBTQ discrimination is a form of sex discrimination and illegal under federal civil rights law.

The Washington Blade has placed a request in with Trump’s office seeking comment on the meeting with Pence and Napolitano as described in “Insurgency.” Napolitano couldn’t be reached for comment.

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Human Rights Campaign’s ex-president sues over termination, alleges racial discrimination

Alphonso David alleges he was terminated unfitly

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Alphonso David, the former president of the Human Rights Campaign terminated by the board after he was ensnared in the Gov. Andrew Cuomo scandal, sued the nation’s leading LGBTQ group on Thursday, arguing he was fired as a result of racial discrimination “amid a deserved reputation for unequal treatment of its non-white employees” and was explicitly told he was paid less because he’s Black.

David, speaking with the Washington Blade on Thursday during a phone interview, said he came to the decision to file the lawsuit after practicing civil rights law for 20 years and “never thought that I would be a plaintiff.”

“But I’m in this chair, I was put in this position,” David said. “And as a civil rights lawyer, I couldn’t look the other way. It would be anathema to who I am and it would undermine my integrity and purpose for the work that I do. And so I have to go through and make a very, very difficult personal decision to file this lawsuit.”

The lawsuit, filed Thursday in the U.S. District Court for the Eastern District of New York, accuses the Human Rights Campaign of violating new state and federal laws for terminating David, who was the organization’s first person of color and Black person to helm the LGBTQ group in its 40-year history. The lawsuit also contends the Human Rights Campaign contravened equal pay law in New York by paying David less than his predecessor, Chad Griffin.

After a public dispute with the board in September amid an independent investigation of his role in the Cuomo affair, the Human Rights Campaign boards unceremoniously fired David and shortly afterward announced a still ongoing search for a new president. David was named nearly a dozen times in the damning report by New York Attorney General Letitia James, suggesting David assisted in efforts by Cuomo’s staff to discredit a woman alleging sexual misconduct in Cuomo’s office. David has consistently denied wrongdoing.

But the lawsuit is broader than the termination and describes an environment at the Human Rights Campaign, which has faced criticism over the years for being geared toward white gay men, as a workplace where “non-white staffers were marginalized, tokenized, and denied advancement to high-level positions.” After a speech David gave on issues of race and indifference in the context of HRCโ€™s mission, the lawsuit claims a board member complained about him referring too much to being Black, but faced no penalty from the organization.

Specifically named in the report is Chris Speron, Senior Vice President of Development, who expressed concern about โ€œalienatingโ€ white donors and specifically โ€œwhite gay men” after David issued a statement on the importance of Black Lives Matter after the killing of George Floyd by Minneapolis police officers. The lawsuit claims Speron pushed David to “stop mentioning in his public statements and remove from his bio the fact that he was HRCโ€™s first Black President in its history.” Speron also was critical of hiring a Black-owned consulting firm and “criticized a Black staff member for attending a meeting with the consulting firm without a white person present,” the lawsuit claims. Speron couldn’t immediately be reached for comment to respond to the allegations.

In terms of equal pay, the lawsuit says HRC’s co-chairs informed David he was underpaid compared to his predecessor because he’s Black. But the lawsuit also acknowledges in 2021, just before news broke about the Cuomo report, the Human Rights Campaign in recognition of Davidโ€™s work renewed his contract for five additional years and gave him a 30 percent raise.

David, speaking with the Blade, said he was in “shock” upon experiencing these alleged incidents of racism, maintaining he had kept quiet at the time out of concern for the greater good of the aims of the Human Rights Campaign.

Asked whether as president he considered implementing racial sensitivity trainings for his subordinates, David said “yes,” but added many trainings aren’t effective and said the power in organizations like the Human Rights Campaign is often spread out.

“There are people within the organization that have a fair amount of board support because they bring in the money because they are responsible for overseeing the money,” David added.

Joni Madison, interim president of the Human Rights Campaign, said in a statement after the lawsuit was filed the organization is “disappointed that Alphonso David has chosen to take retaliatory action against the Human Rights Campaign for his termination which resulted from his own actions.”

“Mr. Davidโ€™s complaint is riddled with untruths,” Madison said. “We are confident through the legal process that it will be apparent that Mr. Davidโ€™s termination was based on clear violations of his contract and HRCโ€™s mission, and as president of HRC, he was treated fairly and equally.”

Madison adds the individuals accused of racism in the lawsuit “are people of color and champions of racial equity and inclusion who provided support and guidance as Mr. David led the organization,” without naming any specific individual. The boards for the Human Rights Campaign and the Human Rights Campaign Foundation who made the decision to terminate David, were comprised of seven independent directors, five of whom were Black.

The racist environment, the lawsuit says, culminated for David in September 2021 amid an independent investigation of his role in the Cuomo affair conducted by the law firm Sidley Austin LLP at the behest of the organization. According to the lawsuit, the board co-chairs contacted David late at night before Labor Day weekend to tell him to resign by 8 a.m. the next morning or be terminated for cause. When David asked whether the Sidley Austin investigation had made any findings against him, or if a report would be issued explaining what he was accused of doing wrong, the board co-chairs refused to say, the lawsuit says.

As is publicly known, David declined to resign and took to Twitter to complain about the board, which subsequently issued a statement disputing his claims. He was then fired “for cause” under his contract.

The termination, the lawsuit says, signified differential treatment of David because he is Black, taking note the Human Rights Campaign under his predecessor had “endured repeated, serious, scandals โ€” many of which involved HRCโ€™s mistreatment of Black and other marginalized individuals,” but Chad Griffin was never terminated “for cause.”

Both the Human Rights Campaign Foundation board and the Human Rights Campaign board voted to terminate David. A source familiar with the vote said no one voted โ€œnoโ€ in either case. The campaign board vote was unanimous and there were two abstentions in the foundation board vote, the source said.

The source familiar with the vote said David never told the Human Rights Campaign he was helping Cuomo during his time as HRC president nor did he disclose he was talking to the New York attorney general. The first board members heard about it was when it hit the press, the source said.

Meanwhile, the lawsuit says David “performed extremely well as HRC president, by any measure,” navigating the organization through the coronavirus epidemic and boosting fundraising by 60 percent. (The Blade has not yet verified this claim.) It should be noted the Human Rights Campaign cited coronavirus as the reason it laid off 22 employees, as reported at the time by the Blade.

David, asked by the Blade how he sees the alleged racist culture at Human Rights Campaign infused in his termination, said “Black and Brown people are treated differently and have been for years in this organization,” citing a “Pipeline Report” leaked to the press in 2015 documenting an environment in which employees of color were unable to thrive.

“And so, the fact that I’m being treated differently now, in the fact that a different standard is being applied to me is just simply consistent with what they’ve always done,” David said. “You know, we go back to the Pipeline Report: Imagine if I was leading the organization at the time, and there was a report that was issued, that said that anti-Semitic remarks were being made within the organization, and that women were being discriminated against within the organization or some other marginalized group and that one of the senior vice presidents used a derogatory remark. Do you think I would still be at the organization or would they have fired me?”

David concluded: “There’s a different standard and a double standard that they’ve applied for decades, and I’ve just now been one casualty โ€” another in a long series of casualties based on their systemic bias and discrimination.”

Among the requests in the prayer for relief in the complaint is a declaration the Human Rights Campaign’s actions violated the law; restoration of David to his position as president; an award of the compensation he would have received were he still on the job as well as punitive damages. Asked by the Blade whether any settlement talks have taken place, David said that wasn’t the case and pointed out the lawsuit was recently filed.

Legal experts who spoke to the Blade have doubted the validity of a review by Sidley Austin on the basis it was among the legal firms agreeing in 2019 to help with the Human Rights Campaign entering into litigation to advance LGBTQ rights, an agreement David spearheaded upon taking the helm of the organization.

David, in response to a question from the Blade, said the independent investigation into his role in the Cuomo affair “is a sham and I believe it was a sham,” citing the lack of transparency of findings.

“One of the first instances that caused me concern,” David said, “is I suggested to the organization that we conduct an independent review, and they came back to me and said, ‘Here’s our press release history,’ and the press release never mentioned that I actually suggested that they do this review. And when I challenged them on that, they told me that they thought it would be better for the press to review a complaint or receive a statement that showed that they were bringing this investigation as opposed to I’m recommending and push back even more. And then they said ‘Well, we will put in the statement that you are cooperating.’ So from the very beginning, they were not honest about what they were actually doing.”

Representing David in the lawsuit is the Chicago-based employment law firm Stowell & Friedman, Ltd. and and Chicago-based attorney Matt Singer. The case has been assigned to U.S. District Judge Eric Vitaliano, a George W. Bush appointee, an informed source familiar with the case said.

The lawsuit was filed in New York as opposed to D.C. because David is a New York resident and much of the discriminatory behavior took place in New York, the source said. The pay disparity alleged in the lawsuit is expressed in percentages as oppose to hard numbers pursuant to rules for the judiciary in New York, the source added.

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