WSJ: Tension Between Gen. Kelly & White House As DHS Secretary Resisted Effort To Appoint Kris Kobach As Deputy Secretary!

http://www.wsj.com/articles/homeland-security-chief-and-white-house-clash-1485823301

The WSJ reports:

“WASHINGTON—Homeland Security Secretary John Kelly has clashed with the White House over staffing and other decisions in recent days, people familiar with the matter said, leaving the agency without a second-in-command as it tried to institute a new travel ban during a chaotic weekend at the nation’s airports.

When President Donald Trump selected Mr. Kelly, the pick won broad support from Republicans and Democrats in part because they believed the retired Marine general would be willing to speak up and challenge Mr. Trump.

That tension didn’t take long to materialize. Mr. Kelly hasn’t been able to name the deputy he wants at the agency, people familiar with the matter said, and he fought off attempts by the White House to put Kris Kobach, the Kansas secretary of state known as a hard-liner on immigration, into the position.
Mr. Kelly was also frustrated at not knowing the details of the travel ban earlier, so he could prepare his agency to respond, according to people familiar with the matter. Mr. Trump signed the executive order that created the ban late Friday afternoon. Mr. Kelly was only informed of the details that day as he was traveling to Washington, even though he had pressed the White House for days to share with him the final language, the people said.”

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According to the article, President Trump has now decided to nominate Elaine Duke, a former Bush Administration official, to the #2 job at DHS. Have to wonder how long Kelly, a former Marine and a reputed “straight shooter” (in more ways than one) will last in “the circus.”

PWS

01/31/17

 

Washington Post: Next Trump Targets: Public Charges, Birth Tourists, Foreign Workers!

https://www.washingtonpost.com/world/national-security/trump-administration-circulates-more-draft-immigration-restrictions-focusing-on-protecting-us-jobs/2017/01/31/38529236-e741-11e6-80c2-30e57e57e05d_story.html

The Washington Post reports:

“The Trump administration is considering a plan to weed out would-be immigrants who are likely to require public assistance, as well as to deport — when possible — immigrants already living in the United States who depend on taxpayer help, according to a draft executive order obtained by The Washington Post.

A second draft order under consideration calls for a substantial shake-up in the system through which the United States administers immigrant and nonimmigrant visas, with the aim of tightly controlling who enters the country and who can enter the workforce, and reducing the social services burden on U.S. taxpayers.
The drafts are circulating among administration officials, and it is unclear whether President Trump has decided to move forward with them or when he might sign them if he does decide to put them in place. The White House would not confirm or deny the authenticity of the orders, and White House officials did not respond to requests for comment about the drafts Monday and Tuesday.
If enacted, the executive orders would appear to significantly restrict all types of immigration and foreign travel to the United States, expanding bars on entry to the country that Trump ordered last week with his temporary ban on refugees and people from seven Muslim-majority countries.”

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For copies of the draft Executive Orders and the full story, go over to the Washington Post at the above link.

PWS

01/31/17

 

BREAKING: President Trump Nominates 10th Circuit Judge Neil Gorsuch To Supremes — Read My Short Article “Judge Gorsuch Understands — Why It’s High Time For Chevron ‘Judicial Task Avoidance’ To Go”

http://www.huffingtonpost.com/entry/neil-gorsuch-supreme-court_us_5890c0e8e4b0522c7d3d592a?ua16n5hws8p6xswcdi&

HuffPost writes:

“Against that backdrop, questions about the court’s independence and role as a check on the executive branch are sure to dominate Gorsuch’s confirmation hearing, which will find Democrats on the offensive and under increasing pressure to block or deny the nomination outright ― much like Republicans obstructed the nomination of Merrick Garland, the highly respected appeals court judge President Barack Obama chose to fill the Supreme Court vacancy.

If confirmed, Gorsuch, 49, would bring to the bench a conservative record that will be forever measured against that of Scalia, a towering firebrand of legal conservatism whose death last year forced Trump to issue not one but two lists of potential nominees he’d choose if elected. The lists ― largely assembled with the help of conservative brain trusts ― helped assuage supporters’ fears that Trump might not nominate judges who are conservative enough.

Conservatives need not worry. Gorsuch is an intellectual rising star ― a well-spoken and eloquent writer who enraptures Republican and Libertarian lawyers and law students who come to see him at conferences organized by the Federalist Society, a group that helped Trump put together his Supreme Court wish list.

. . . .

“One key concurring [sic] opinion that earned Gorsuch high praise from conservative commentators was in an immigration case decided last year in which Gorsuch staked out a strong position against the administrative state ― and the way the Supreme Court has made it easier for agencies to interpret laws that judges are better suited to interpret.

“That’s a problem for the judiciary,” Gorsuch wrote in Gutierrez-Brizuela v. Lynch. “And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible — the decisionmaker promised to them by law — but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.”

Administrative law isn’t exactly an area activists will rally around, but the high court hears a number of cases in which agencies are front and center ― whether the controversy is about transgender rights, health care, the environment or immigration. In that regard, Gorsuch could be skeptical of how the Trump administration ― and future administrations ― reads the law as it exists on the books.” [emphasis added]

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Judge Gorsuch Understands — Why It’s High Time For Chevron “Judicial Task Avoidance” To Go

by Paul Wickham Schmidt 

I haven’t studied Judge Gorsuch’s opinions enough to make any definitive judgement.  But, I really enjoyed his opinion in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016). He “gets it” about the current problems of “deferring to administrative courts like the BIA and the U.S. Immigration Court which are subject to interference and pressure from the Executive, which “owns” them, to implement certain pro-government policies at the expense of fairness and due process for the individual.

Contrary to the HuffPost report above, Judge Gorsuch wrote the unanimous opinion of the court, not a “concurring” opinion.  In it, he exposed the illogic of the Supreme Court’s so-called “Chevron doctrine.”

Chevron is a masterful piece of of Article III “judicial task avoidance” by the Supreme Court. It requires Federal Courts to “defer” to “captive” Executive Branch administrative judges, like the BIA, on important questions of law.  It also allows life-tenured Article III judges to avoid deciding difficult or potentially controversial issues.

In other words, as recognized by Judge Gorsuch, Chevron provides “cover” for Article III judges to avoid their sole constitutional responsibility of independently resolving legal questions. Judge Gorsuch and his colleagues found that Chevron did not apply in the particular circumstance before them.  The BIA had ignored both common sense and due process in trying to reach a result favorable to the Government.  The 10th Circuit reversed the BIA (for the third time in the same case).

Whatever the merits or demerits of the rest of his jurisprudence, I am encouraged that Judge Gorsuch recognizes the critical role of an independent Article III judiciary.  He is also “on to” the problems of over-relying on administrative judges, like the BIA and U.S. Immigration Judges, who work for the Executive and therefore can be subject to Executive rules and pressures that can, and sometimes do, unfairly skew results against individuals seeking justice in administrative courts.

Consequently, Judge Gorsuch should resist attempts by the Trump Administration to short-cut due process in the Immigration Courts and, hopefully, will encourage his colleagues to look closely to insure that individuals are being treated fairly in accordance with the Due Process Clause of the Constitution. If at some point Chevron and it’s even more pernicious progeny  known as “Brand X” — which incredibly encourages administrative courts to “overrule” Article III courts on questions of law — go down the drain, the country and the cause of justice will be well-served.  And, Article III judges will be required to once again fully earn the salaries to which their life-tenure entitles them.

Read Judge Gorsuch’s full opinion in Gutierrez-Brizuela v. Lynch below.

http://www.ca10.uscourts.gov/opinions/14/14-9585.pd

PWS

01/31/17

New From BIA — Matter of Kim, 26 I&N Dec. 912 (BIA 2017) — CA Mayhem A COV

https://www.justice.gov/eoir/page/file/933996/download

BIA headnote:

“The crime of mayhem in violation of section 203 of the California Penal Code, which requires a malicious act that results in great bodily injury to another person, necessarily involves the use of violent force and is therefore categorically a crime of violence under 18 U.S.C. § 16(a) (2012).”

PANEL:  JUDGES PAULEY, MALPHRUS, MULLAINE

Decision by Judge Malphrus

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PWS

01/31/17

 

Lexis Nexis: “Trump’s Refugee Executive Order a ‘Priceless Recruiting Tool for ISIS’ – Former INS General Counsel David A. Martin”

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/archive/2017/01/30/trump-39-s-refugee-executive-order-a-39-priceless-recruiting-tool-for-isis-39-former-ins-general-counsel-david-a-martin.aspx?Redirected=true

Dan Kowalski at Lexis Nexis summarizes the most hard-hitting part of Professor Martin’s analysis of the Executive Order on Refugees and Visas:

“30 Jan. 2017 – Prof. David A. Martin (please read his full bio) has annotated President Trump’s 27 Jan. 2017 Executive Order. Among other things, Prof. Martin states, “The order is a priceless recruiting tool for ISIS and similar movements, because it so easily fits their narrative that the United States is the enemy of all Muslims. And it will discourage tips and information from American Muslim communities — information that in the past has proved highly valuable to the thwarting of terrorist acts. Accordingly, the Bush and Obama administrations both strived to avoid all measures that could be painted as broadly anti-Muslim. Much of that vital engagement with Muslim communities has been gravely undone by this order.””

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Go on over to Lexis Nexis at the link for further links to the complete analysis in Vox, Professor Martin’s spectacular biography, and a great picture of Professor Martin.

PWS

01/30/17

Danger On The Right Flank: After Just 10 Days, Are The Powerful Koch Bros Already “Trumped Out?” — Trade Wars, Immigrant & Refugee Bashing, Multi-Billion Dollar Walls, Dissing Allies, Kissing Up To Enemies, De-Stabilizing International Order & Ruling By Executive Decree — It’s Not Exactly What The Libertarian-Leaning Bros Wanted From A GOP President!

https://www.washingtonpost.com/business/kochs-condemn-trumps-immigration-crackdown/2017/01/29/626345d8-e698-11e6-903d-9b11ed7d8d2a_story.html?utm_term=.dff0b12716de

The Washington Post writes:

“INDIAN WELLS, Calif. — Charles Koch first likened candidate Donald Trump’s plan to ban Muslim immigrants to something Adolf Hitler would have done in Nazi Germany.

The billionaire industrialist and his chief lieutenants offered a more delicate response this weekend when asked about President Trump’s plan to block immigration from seven Muslim-majority countries. They described Trump’s plan as “the wrong approach” that violated its dedication to “free and open societies.”

The criticism comes as the Koch network, among the most powerful conservative groups in the nation, works to strike a delicate balance in the early days of the new administration. The Kochs refused to support Trump’s candidacy last fall, but they now see a once-in-a-lifetime opportunity to influence the White House and the Republican-controlled Congress.”

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President Trump has nothing but outright contempt for Democrats and the majority of voters who opposed his candidacy. And, why wouldn’t he? A group that gets nearly three million more votes than its opponent, yet still can’t win the Presidency, the Senate, the House, or the majority of state governments is the very definition of a “loser.” Indeed, Trump no longer considers the Dems to be the “real” opposition  — he’s conferred that honor on “the media.” Trump has proved that he doesn’t need majority support to take power — all he needs is the right support in the right places.

Yet, there might be trouble in “Trumpadise.” While the Democrats are protesting vociferously in the streets, finally showing the energy and passion missing during the election, but without a hint of dynamic leadership or a discernible plan for reviving their emasculated party, the Koch Bros head a a well-financed, well-organized political machine that could potentially take Trump down if they perceive that he is a threat to their stylized vision of a free, business-oriented, feebly-governed, and highly unequal society.

Notwithstanding their initial consternation, the Kochs haven’t quite “gotten there” yet. After all, Vice President Mike Pence is their “man,” bought and paid for in full. They are still fairly optimistic that Pence and the House and Senate GOP will be able to exercise enough control over Trump to prevent him from turning America into another really bad reality show. But, if they can’t, and the Bros decide that Trump has to go, he could have a more formidable opposition than the media or the Democrats to worry about.

PWS

01/30/17

 

BREAKING NEWS: Trump (Predictably) Fires Acting AG Sally Yates For Refusing To Defend Executive Order

https://www.washingtonpost.com/world/national-security/acting-attorney-general-an-obama-administration-holdover-wont-defend-trump-immigration-order/2017/01/30/a9846f02-e727-11e6-b82f-687d6e6a3e7c_story.html?hpid=hp_rhp-banner-main_mobile-banledeall-917am:homepage/story&utm_term=.2bb3e1f21f15

The Washington Post reports tonight:

“President Trump fired Acting Attorney General Sally Yates Monday night, after Yates ordered Justice Department lawyers Monday not to defend his immigration order temporarily banning entry into the United States for citizens of seven Muslim-majority countries and refugees from around the world.

In a press release, the White House said Yates had “betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States.”

The White House has named Dana Boente, U.S. attorney for the Eastern District of Virginia, as acting attorney general. Boente told The Washington Post that he will agree to enforce the immigration order.
Earlier on Monday, Yates ordered Justice Department not to defend President Trump’s immigration order temporarily banning entry into the United States for citizens of seven Muslim-majority countries and refugees from around the world, declaring in a memo that she is not convinced the order is lawful.

Yates wrote that, as the leader of the Justice Department, she must ensure that the department’s position is “legally defensible” and “consistent with this institution’s solemn obligation to always seek justice and stand for what is right.”
“At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful,” Yates wrote. She wrote that “for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.”

Yates is a holdover from the Obama administration, but the move nonetheless marks a stunning dissent to the president’s directive from someone who would be on the front lines of implementing it.”

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Nothing very surprising here. As noted in the article, Yates was a holdover from the Obama Administration. I suppose it’s a nice note of protest for her to end her DOJ tenure.

Nevertheless, Yates was basically a bystander and enabler as her boss, AG Loretta Lynch, and the Obama Administration created chaos in the U.S. Immigration Court system. Lynch and Yates, who, to the best of my knowledge neither set foot inside a U.S. Immigration Court nor took the time to speak in person with sitting judges, mandated enforcement-based priorities which attempted to race vulnerable women, children, and families from Central America seeking refuge in the U.S. through the process on an expedited basis without a reasonable chance to obtain lawyers or present their claims. Indeed, while she might be having pangs of conscience about defending the Trump orders, Yates’s DOJ lawyers had little difficulty defending the facially absurd contention that children who couldn’t even speak English could represent themselves on complex asylum claims in Immigration Court. Meanwhile, those who had been patiently waiting on the Immigration Court’s docket for years and were actually ready to proceed to trial on their claims for relief were arbitrarily “orbited” to the end of the line — years in the future. Yates and Lynch inherited a court system in crisis and left it a disaster.

Then, there was judicial selection. Yates presided over a “Rube Goldberg Type” glacial, hyper-bureaucratized, opaque, hiring process that effectively excluded those outside government from the Immigration Judiciary and the Board of Immigration Appeals, while leaving approximately 75 unfilled positions at the end of the Administration and a BIA structure and system that basically institutionalized and reinforced the aggressively anti-due-process procedures put in place by Attorney General Ashcroft during the Bush Administration. She and her boss left behind total chaos and a due process train wreck that mocked the noble vision of the U.S. Immigration Courts:  through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all.

So, forgive me if I can’t get too enthused about Yates’s belated show of backbone.  Her gesture was purely symbolic, and cost her nothing, since she was going to be replaced immediately upon Sessions’s confirmation. But, when she actually had a chance to improve due process in the U.S. Immigration Courts, she was, sadly, MIA.

PWS

01/30/17

 

 

 

 

 

 

Washington Post: Sessions Driving Trump’s Immigration Policies — Due Process Forecast For U.S. Immigration Courts: Dark & Stormy

https://www.washingtonpost.com/politics/trumps-hard-line-actions-have-an-intellectual-godfather-jeff-sessions/2017/01/30/ac393f66-e4d4-11e6-ba11-63c4b4fb5a63_story.html?hpid=hp_rhp-top-table-main_sessions-0451pm%3Ahomepage%2Fstory&utm_term=.2f7a86336f2d

Philip Rucker  and Robert Costa write in the Washington Post:

“In jagged black strokes, President Trump’s signature was scribbled onto a catalogue of executive orders over the past 10 days that translated the hard-line promises of his campaign into the policies of his government.

The directives bore Trump’s name, but another man’s fingerprints were also on nearly all of them: Jeff Sessions.
The early days of the Trump presidency have rushed a nationalist agenda long on the fringes of American life into action — and Sessions, the quiet Alabam­ian who long cultivated those ideas as a Senate backbencher, has become a singular power in this new Washington.

Sessions’s ideology is driven by a visceral aversion to what he calls “soulless globalism,” a term used on the extreme right to convey a perceived threat to the United States from free trade, international alliances and the immigration of nonwhites.

And despite many reservations among Republicans about that worldview, Sessions — whose 1986 nomination for a federal judgeship was doomed by accusations of racism that he denied — is finding little resistance in Congress to his proposed role as Trump’s attorney general.

Sessions, left, and then-President-elect Donald Trump speak at a “USA Thank You Tour” rally in Sessions’s home town of Mobile, Ala., on Dec. 17. (Jabin Botsford/The Washington Post)
Sessions’s nomination is scheduled to be voted on Tuesday by the Senate Judiciary Committee, but his influence in the administration stretches far beyond the Justice Department. From immigration and health care to national security and trade, Sessions is the intellectual godfather of the president’s policies. His reach extends throughout the White House, with his aides and allies accelerating the president’s most dramatic moves, including the ban on refugees and citizens from seven mostly Muslim nations that has triggered fear around the globe.

The author of many of Trump’s executive orders is senior policy adviser Stephen Miller, a Sessions confidant who was mentored by him and who spent the weekend overseeing the government’s implementation of the refu­gee ban. The tactician turning Trump’s agenda into law is deputy chief of staff Rick Dearborn, Sessions’s longtime chief of staff in the Senate. The mastermind behind Trump’s incendiary brand of populism is chief strategist Stephen K. Bannon, who, as chairman of the Breitbart website, promoted Sessions for years.

Then there is Jared Kushner, the president’s son-in-law and senior adviser, who considers Sessions a savant and forged a bond with the senator while orchestrating Trump’s trip last summer to Mexico City and during the darkest days of the campaign.

[Trump lays groundwork to change U.S. role in the world]

In an email in response to a request from The Washington Post, Bannon described Sessions as “the clearinghouse for policy and philosophy” in Trump’s administration, saying he and the senator are at the center of Trump’s “pro-America movement” and the global nationalist phenomenon.”

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I suppose not surprisingly, Senator Session’s claim that he would rise above his past and be Attorney General for all Americans was just a disingenuous smokescreen. Well, as I’ve said before, sometimes philosophical bias prevents folks from acting both in their own self-interest and the national welfare. So, the fate of due process in the U.S. Immigration Courts is likely to end up in the hands of the U.S. Courts of Appeals and, eventually, the Supreme Court. If nothing else, Sessions could find out that he’s going to spend most of the next four years without much immigration enforcement at all, as the Article III Courts sort this out. Dumb me, for giving the guy the “benefit of the doubt.”

PWS

01/30/17

Is President Trump’s EO On Refugees and Visas Legal? Nolan Rappaport of The Hill Says The Statutory Authority Is Clear, If “Clumsily Executed” — Professor David Cole Of Georgetown Law Says It’s Unconstitutional!

Nolan points to section 212(f) of the INA:

“The president’s authority to declare such suspensions can been found in section 212(f) of the INA, the pertinent part of which reads as follows:

‘(f) Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.’
The 90-day suspension can be waived on a case-by-case basis.

The Department of Homeland Security (DHS) has applied this waiver to the entry of lawful permanent residents. He has stated that, “absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.

. . . .

A federal judge has granted an emergency stay request from the American Civil Liberties Union to bar the deportation of people with valid visas who landed in the U.S. after the EO was issued.

Frankly, I do not understand this judge’s order. The issuance of a visa does not guarantee an alien’s admission into the United States. In fact, this is explicitly stated on the State Department’s Frequently Asked Questions site About Visas – The Basics.

“After I have my visa, I will be able to enter the U.S., correct?
“A visa does not guarantee entry into the United States. A visa allows a foreign citizen to travel to the U.S. port-of-entry, and the Department of Homeland Security U.S. Customs and Border Protection (CBP) immigration inspector authorizes or denies admission to the United States.”
Nevertheless, it is apparent that the EO will inconvenience many people who are coming here for legitimate purposes, and that is unfortunate.

On the other hand, it also is apparent that President Trump did not exceed his statutory authority over alien admissions with the directives in the EO, and that he issued it to protect the United States and its citizens from foreign nationals who intend to commit terrorist attacks in the United States.

But was it the best way to accomplish that objective?”

Read Nolan’s full article in The Hill here:

http://thehill.com/blogs/pundits-blog/immigration/316871-trumps-immigration-ban-is-clumsy-but-perfectly-legal

David argues that the EO is clearly unconstitutional:

“According to the Supreme Court, “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 US. 228, 244 (1982). But that command is apparently not clear enough for President Donald Trump. On Friday he signed an Executive Order on refugees that imposes a selective ban on immigration from seven Muslim-majority countries, and at the same time establishes preferential treatment for refugees seeking asylum who are identified with “minority religions” in their country of origin. In case there was any doubt about the latter provision’s intent, Trump told Christian Broadcast News that it was intended to give priority to “Christians” seeking asylum over “Muslims.”

In both respects, the Executive Order violates the “clearest command of the Establishment Clause.” First, as I developed in an earlier post, the Constitution bars the government from targeting Islam. One of the lowest of many low moments in Donald Trump’s presidential campaign was his December 2015 call for a “total and complete shutdown” of Muslim immigration. The proposal treated as presumptively suspect a religion practiced by about 1.6 billion people worldwide, nearly a quarter of the globe’s population. Trump soon retreated to talk of “extreme vetting,” but never gave up his focus on the religiohttp://immigrationcourtside.com/wp-admin/post.php?post=891&action=edit#n of Islam. Friday’s executive orders are of a piece with his many anti-Muslim campaign promises.”

Read David’s full article in Just Security here:

https://www.justsecurity.org/36936/well-court-trumps-executive-order-refugees-violates-establishment-clause/

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I see Nolan’s point. But, statutory authority doesn’t necessarily mean it’s constitutional.

On David’s constitutional question, Federal Courts have been willing to intervene at times to protect due process rights of individuals who are physically present in the United States, particularly those who have green cards. The Administration’s ill-thought-out, confusing, and initially heavy handed (or “clumsy” in Nolan’s words) implementation of the EO gave opponents a golden opportunity to score some early temporary victories in cases involving green card holders and others who had valid visas or refugee admission documents at the time the embarked for the United States.

But, beyond that, the EO falls at the intersection of immigration law, foreign policy, and national security, three subjects on which the Federal Courts traditionally have been reluctant to challenge the Executive’s authority. Courts have historically been reluctant to review the Executive’s exercise of authority beyond U.S. territory.  For example, the U.S. Supreme Court upheld the Executive’s authority to engage in “high seas interdiction” of Haitian migrants even though it appeared to violate the spirit, if not the letter, of the Refugee Act of 1980 and the U.N. Convention and Protocol on the Status of Refugees. Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993).

Up until 1965, the U.S. immigration laws blatantly discriminated on the basis of race and national origins. The Supreme Court never held any of those provisions unconstitutional. In fact, it was Congress, not the Supreme Court, which forced the 1965 changes to make the law more equitable.

And, leaving aside the legal and national security policy issues, the politics of this situation are far from clear. The initial NBC-4-DC poll (presumably from the DC Metro viewing area) showed 62% of respondents opposed the President’s order. By contrast, the initial Quinnipiac nationwide poll showed 48% to 42% support for the controversial Executive Order. Perhaps, President Trump is on stronger ground politically than the many nationwide protests and fierce reaction against his Executive Order would indicate.

PWS

01-30-17

 

Jill Family: Due Process On The Run

http://yalejreg.com/nc/draining-due-process-by-jill-e-family/

Professor Jill Family of Widener University Law writes in “Notice & Comment:”

“As I have argued before, the failings of the immigration adjudication system are not an excuse to perform end-runs around the system and to ignore administrative process design criteria. The system needs to be fixed and not forgotten. This is not only a question of what is fair for individuals charged with removal. It is also a signal of the administration’s attitude toward due process rights. That should be concerning to anyone interested in agency adjudication and individual rights.”

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I couldn’t agree more with Professor Family. I lived through lots of “haste makes waste” disasters in my Government career. Both Nolan Rappaport and I have pointed out, in our different ways, why it would be smart for the Trump Administration to do an “honest fix” for the Immigration Court system. A “level playing field” that concentrates on full due process in the Immigration Courts benefits everyone, including those who favor vigorous (yet fundamentally fair) immigration law enforcement.

But, sadly, after one week, this has all of the hallmarks of an Administration that will not be able to rise above its own intentionally divisive campaign rhetoric and its unfortunate biases. Just to be clear, as the events of the first week show, those biases have nothing whatsoever to do with the best interests or security of our country and everything to do with pandering to misguided nationalist/populist sentiment.

I suspect that eventually the entire Immigration Court System as well as the DHS “Administrative Removal Process” will end up in “receivership” in the Article III Courts, who will have to decide what to do with a supposed due process system that has been “drained” of both common sense and due process. But, given the failures of the last two Administrations to foster due process in the Immigration Courts, the apparent intention of the Trump Administration to mock established concepts of fairness and due process, and the failure Congress to act on long overdue reforms to establish an Immigration Court independent from the Executive, that might be the best thing for America.

PWS

01/29/17

BREAKING: DHS Secretary John Kelly Finds Readmission Of LPRs In The “National Interest” — Text Of Statement Below

STATEMENT BY SECRETARY JOHN KELLY ON THE ENTRY OF LAWFUL PERMANENT RESIDENTS INTO THE UNITED STATES

WASHINGTON – In applying the provisions of the president’s executive order, I hereby deem the entry of lawful permanent residents to be in the national interest.

Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.

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According to Chuck Todd on “Meet The Press” this AM, the DHS opposed the inclusion of “green card holders” in the EO, but their objections apparently were ignored by the Trump WH staff who did the drafting (without much thought or consultation, it appears).

I must admit to hoping that Gen. Kelly at DHS and Gen. Mattis at DOD would be the “adults in the room” on some of these issues. The problem might be that they aren’t “in  the room” when the decisions are made.

With guys like Steve Bannon, Kris Kobach and Stephen Miller, with well- established track records of poor judgement and divisiveness (and that’s putting it charitably) mis-advising Trump on immigration, it’s likely to be an uphill climb for anyone purporting to be the voice of reason and sound judgment. And, I’m certainly not trying to give Trump a pass here; he selected and empowered this  team of  spectacularly unqualified senior advisors.

PWS

01/29/17

Copy Of TRO By Judge Leonie Brinkema, EDVA, Prohibiting Removal Of LPRs & Requiring Access To Counsel — Aziz v. Trump

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

Case No. 1:17-cv-116

Date: January 28, 2017

Ammar Aqel Mohammed Aziz, by their next friend,

Aqel Muhammad Aziz, and

John Does 1-60, Petitioners,

v.

 

DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and WAYNE BIONDI, Customs and Border Protection (CBP) Port Director of the Area Port of Washington Dulles,

Respondents.
TEMPORARY RESTRAINING ORDER

Pursuant to Federal Rule of Civil Procedure 65, the Court orders that:

a) respondents shall permit lawyers access to all legal permanent residents being detained at Dulles International Airport;

b) respondents are forbidden from removing petitioners—lawful permanent residents at Dulles International Airport—for a period of 7 days from the issuance of this Order.

Dates: January 28, 2017

1

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Seems pretty straightforward.  Lawful permanent residents (“green card holders”) returning from abroad are entitled to full Removal Hearings before a U.S. Immigration Judge at which the DHS bears the burden of establishing removability by clear and convincing evidence.  They are also entitled to representation by counsel of their own choosing (at no expense to the Government) in such a hearing.  Therefore, it’s hard to understand the the basis for the apparent DHS claim that they could detain and remove a returning green card holder without a hearing and without allowing him or her access to a lawyer.  But, I’ve read and heard reports from local attorneys saying that DHS CBP officials at Dulles International Airport have been slow to comply or resisted complying with Judge Brinkema’s very clear order.

I’ve never personally met Judge Brinkema, who sits in the U.S. District Court a few blocks from our home in Alexandria. But, I’m familiar with her work. Occasionally, one of my custody/bond decisions from the Arlington Immigration Court ended up before her for judicial review by habeas corpus. Sometimes she upheld my decision, sometimes not.

On several occasions, she ordered me to conduct immediate individualized custody hearings for detained individuals notwithstanding BIA precedent to the contrary. I always complied immediately, just as she had ordered. The DHS Arlington Chief Counsel also got on board. Judge Brinkema wasn’t someone you wanted to “mess around with.”

Unlike U.S. Immigration Judges, who were given statutory contempt of court powers by the Congress, only to have that authority withheld by the U.S. Dept. of Justice over three Administrations, Democratic and Republican, Judge Brinkema has authority to hold individuals, including U.S. Government officials, in contempt of court for disobeying her orders. And, I never had the impression that she would be reluctant to do that when necessary.

Additionally, failure to comply with court orders can result in large attorney fee awards against the Government under the Equal Access to Justice Act. If the reports of non-compliance are true, it seems that DHS and their lawyers are “playing with fire” here.

Remember guys, this isn’t Immigration Court. Article III Judges have life tenure, and they don’t work for the President. He’s just another party to them.

PWS

01/29/17

 

BREAKING NEWS: U.S. District Judge Ann Donnelly, EDNY, Stays Deportation Of Individuals Held Under Trump’s Executive Order — Finds “Irreparable Harm” To Individuals!

https://www.washingtonpost.com/local/social-issues/refugees-detained-at-us-airports-challenge-trumps-executive-order/2017/01/28/e69501a2-e562-11e6-a547-5fb9411d332c_story.html?hpid=hp_no-name_no-name:page/breaking-news-bar&tid=a_breakingnews&utm_term=.ee674f9be00b

From the Washington Post:

“In Brooklyn, after a brief hearing in front of a small audience that filtered in from a crowd of hundreds outside, Donnelly determined that the risk of injury to those detained by being returned to their home countries necessitated the decision. She seemed to have little patience for the arguments presented by the government, which focused heavily on the fact that the two defendants named in the lawsuit had already been released. At one point, she visibly lost patience with a government attorney who was participating by phone.

Donnelly noted that those detained were suffering mostly from the bad fortune of traveling while the ban went into effect. “Our own government presumably approved their entry to the country,” she said at one point, noting that, had it been two days prior, those detained would have been granted admission without question.”

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I feel the Judge’s pain with the Government’s disingenuous arguments. Implementing such a draconian measure on a weekend with no notice is just plain stupid. And arguing that the Government would somehow be harmed by agreeing to stay the removal of meticulously pre-screened individuals with valid visas long enough for the Judge to fully consider the substantial constitutional arguments presented is beyond ludicrous.

I also feel for the poor AUSA stuck defending this kind of nonsense by an obstinate Administration that knows no compromise. I had to help defend a few of these in my Government career. At the time of my “first retirement” from the DOJ, one DOJ litigator said that he would miss me because I “was the best ever at providing reasonable explanations for my agency’s fundamentally irrational policies.”

The temporary restraining order issued by the Judge does not decide the merits of the dispute.  It merely maintains the status quo so that the Judge can decide the case after full briefing and argument by the parties at a time other than a Saturday night. However, in addition to finding irreparable harm, Judge Donnelly also found a “strong likelihood” that the individual plaintiffs would prevail on their arguments based on Constitutional Due Process and Equal Protection. A copy of the order is at the link below.  Stay tuned.

Darweesh v Trump_DECISION and ORDER document-3

PWS

01/28/17

Religion: Stephen Mattson In Sojourners: “American ‘Christianity’ Has Failed”

https://sojo.net/articles/american-christianity-has-failed

“Because while the gospels instruct followers of Christ to help the poor, oppressed, maligned, mistreated, sick, and those most in need of help, Christians in America have largely supported measures that have rejected refugees, refused aid to immigrants, cut social services to the poor, diminished help for the sick, fueled xenophobia, reinforced misogyny, ignored racism, stoked hatred, reinforced corruption, and largely increased inequality, prejudice, and fear.

. . . .

By these standards — and by the ultimate example that Jesus himself set for us by example — mainstream Christianity in America has failed. It looks nothing like Jesus.
But the reality is that following Jesus is extremely hard. It demands giving away your most prized possessions and abandoning your biggest fears. So while there might be political, economic, financial, and safety reasons for implementing policies that harm people and refuse them help, there are certainly no gospel reasons.

Nobody understood this better than the early church. Those first Christ followers who refused to bow to the emperor and go along with the policies of the Roman government. For them, they gave everything — to the point of being persecuted, arrested, tortured, and eventually martyred — for the purpose of serving Christ and serving others, the result of choosing to dedicate their lives to the truths of Jesus rather than the ideals of the ruling empire.

The question is, will American Christians ever learn to do the same?”

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PWS

01/28/17

 

N. Rappaport Explains Trump’s EO On Interior Enforcement In The Hill!

http://thehill.com/blogs/pundits-blog/immigration/316654-on-immigration-trump-will-learn-promises-are-easier-made-than

Nolan concludes:

“President Trump deserves credit for trying to carry out his campaign promises on interior immigration enforcement, but it is a tall order. It always was.”

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PWS

01/28/17