SLATE: Bannon, Sessions, Miller Plan To Use Justice Department To Implement Far Right Agenda!®ion=top-news&WT.nav=top-news

Emily Bazelon reports:

“One night in September 2014, when he was chief executive of Breitbart News, Stephen Bannon hosted cocktails and dinner at the Washington townhouse where he lived, a mansion near the Supreme Court that he liked to call the Breitbart Embassy. Beneath elaborate chandeliers and flanked by gold drapes and stately oil paintings, Jeff Sessions, then a senator from Alabama, sat next to the guest of honor: Nigel Farage, the insurgent British politician, who first met Sessions two years earlier when Bannon introduced them. Farage was building support for his right-wing party by complaining in the British press about “uncontrolled mass immigration.” Sessions, like other attendees, was celebrating the recent collapse in Congress of bipartisan immigration reform, which would have provided a path to citizenship for some undocumented people. At the dinner, Sessions told a writer for Vice, Reid Cherlin, that Bannon’s site was instrumental in defeating the measure. Sessions read Breitbart almost every day, he explained, because it was “putting out cutting-edge information.”

Bannon’s role in blocking the reform had gone beyond sympathetic coverage on his site. Over the previous year, he, Sessions and one of Sessions’s top aides, Stephen Miller, spent “an enormous amount of time” meeting in person, “developing plans and messaging and strategy,” as Miller later explained to Rosie Gray in The Atlantic. Breitbart writers also reportedly met with Sessions’s staff for a weekly happy hour at the Union Pub. For most Republicans in Washington, immigration was an issue they wished would go away, a persistent source of conflict between the party’s elites, who saw it as a straightforward economic good, and its middle-class voting base, who mistrusted the effects of immigration on employment. But for Bannon, Sessions and Miller, immigration was a galvanizing issue, lying at the center of their apparent vision for reshaping the United States by tethering it to its European and Christian origins. (None of them would comment for this article.) That September evening, as they celebrated the collapse of the reform effort — and the rise of Farage, whose own anti-immigration party in Britain represented the new brand of nativism — it felt like the beginning of something new. “I was privileged enough to be at it,” Miller said about the gathering last June, while a guest on Breitbart’s SiriusXM radio show. “It’s going to sound like a motivational speech, but it’s true. To all the voters out there: The only limits to what we can achieve is what we believe we can achieve.”


Talk about “the fox guarding the chicken coop!” And, I don’t share Bazelon’s view that DOJ career attorneys will be a significant moderating influence.

They all work for Jeff Sessions. Resisting Administration policies or positions could be considered insubordination — a ground for firing. Short of that, those who don’t “get with the program” could find themselves demoted, denied pay increases, transferred to obscure offices (perhaps in different locations), or given meaningless “busywork” assignments as punishment. In  DOJ lingo the disfavored and exiled are known as “hall walkers.”

Yes, it’s true that in many past Administrations those with opposing views were tolerated and often even had their differing perspectives considered and occasionally adopted. That often had a moderating effect. But, that assumes an Administration acting in good faith. Sounds like Sessions and his colleagues have already decided to dismantle those parts of the U.S. justice system that don’t fit their ultra nationalist, restrictionist, white-power-Christian-oriented agenda. It could be a long four years at the DOJ for career lawyers (those who survive). Sad!




New Administration “Travel Ban” Likely On Wednesday — Revisions Will Address Some Issues That Troubled Courts

Matt Zapotosky reports in the Washington Post:

“Barring any last minute changes, President Trump will sign a revised travel ban that exempts current visa holders, according to a person familiar with the matter.

The revision marks a significant departure from the now-frozen first executive order, which temporarily barred refugees and citizens of seven Muslim-majority countries from entering the United States, and resulted in the State Department unilaterally revoking tens of thousands of visas. Justice Department lawyers hope the new order will be more likely to withstand legal challenges and will not leave any travelers detained at U.S. airports.

The new order also removes an exception to the refu­gee prohibition for religion minorities, the person said. Critics of the order had said that exception proved it was meant to discriminate on the basis of religion, because it allowed only Christians into the country.
The new order, the details of which were first reported by the Wall Street Journal, is expected to be signed Wednesday. The person who described it to The Post did so on the condition of anonymity because the administration had not authorized the release of details.”


I would expect advocates to quickly challenge the new order. If the Administration backs up the order with some evidence supporting its actions, the legal challenges might be more difficult this time around.




UPDATE:  NBC News reports Wednesday morning that the White House now says that the new Travel Ban Order will be further delayed.



Shocker — Is Trump’s Immigration Policy About To Take a More Pragmatic Turn? — Proposal For Reform Legislation Allowing Many To Stay In The Offing?


“WASHINGTON — President Trump, signaling a potential major shift in policy, told news anchors on Tuesday that he is open to a broad immigration overhaul that would grant legal status to millions of undocumented immigrants who have not committed serious crimes.

“The time is right for an immigration bill as long as there is compromise on both sides,” the president told the TV anchors at the White House, according to people present during the discussion. The people requested anonymity because they were not authorized to speak about the private meeting.

The idea is a sharp break from the broad crackdown on undocumented immigrants that Mr. Trump has taken in his first weeks in office and the hardline positions embraced by his core supporters that helped sweep him into the White House. The president hinted at the reversal just hours before he was to deliver his first address to Congress, although it was not clear whether he would mention it in his speech.
A move toward a comprehensive immigration overhaul would be a dramatic turnaround for the president, whose campaign rallies rang with shouts of “build the wall!” on the Mexican border and who signed an executive order last month directing the deportation of any undocumented immigrant who has committed a crime — whether or not they have been charged — or falsified any document. The standard could apply to virtually any one of the estimated 11 million people in the country illegally.”


This report was published before the President’s speech to Congress tonight. We might, or might not, get more details in the speech.

Reaching a compromise on immigration would be “smart governing” by the Administration. It would push most of the responsibility for formulating sound immigration policy back where it belongs — Congress.  Additionally, reform that allows those undocumented individuals with good records to remain in the United States could potentially clear much of the backlog of the overwhelmed U.S. Immigration Courts, thereby clearing the way for the Administration to work on its “criminal priorities” and for the Immigration Courts to concentrate on providing full due process to those placed in the removal process.




Update from the Washington Post:

“He also pressed his policies on immigration, including his controversial proposal to build a wall along the U.S.-Mexico border.

“We want all Americans to succeed —- but that can’t happen in an environment of lawless chaos. We must restore integrity and the rule of law at our borders,” said Trump. “For that reason, we will soon begin the construction of a great wall along our southern border. It will be started ahead of schedule and, when finished, it will be a very effective weapon against drugs and crime.”

Trump challenged members of Congress who disagree with him: “I would ask you this question: what would you say to the American family that loses their jobs, their income, or a loved one, because America refused to uphold its laws and defend its borders?”

He did call for Republicans and Democrats to work toward reforming the immigration system into a merit-based program focused on the “well-being of American citizens.”

Trump argued that the country’s current focus on low-skilled immigration hurts American workers and strains the country’s finances.

The comments come hours after Trump said in a meeting with journalists that he would support comprehensive immigration reform efforts with a pathway to legalization for law abiding immigrants.
At his remarks before Congress, Trump did not specify the parameters of a compromise he would be willing to accept. But he outlined a preference for a system that favors immigrants who are able to support themselves financially.

“I believe that real and positive immigration reform is possible, as long as we focus on the following goals: to improve jobs and wages for Americans, to strengthen our nation’s security, and to restore respect for our laws,” Trump said.”

Here’s the complete Post article:




DHS Issues New Training Materials For Credible Fear Determinations — Complete Text Here!

Release lesson plans

credible fear lesson plan


These were forwarded by Nolan Rappaport. Nolan believes that these guidelines will “raise the bar” substantially for asylum claimants to pass through the credible fear process.

On initial review, I’d be hard pressed to say there was anything “legally erroneous” about these lesson plans. However, they did seem highly “legalistic.”

I have done numerous “credible fear reviews” in my judicial career and found that the determinations were more “holistic” than “legalistic.” Most of the folks I reviewed had credible, legitimate fears that arguably came within the legal definitions of persecution and/or torture particularly if the individual could fully develop the claims with the help of a lawyer.

I did not always retain jurisdiction over the cases once they were allowed into the Individual Hearing system Of the cases the came back to me, I estimate that at least half of the individuals succeeded in getting some form of protection at the Immigration Court level.

Read the lesson plans here and decide for yourself!



ECONOMICS: Mary Anastasia O’Grady In The WSJ Says Mexico Can Fight Back Against US Threats!

“Many conservatives who opposed Hillary Clinton are still skeptical of the Trump presidency as well. It may have something to do with recurring whoppers from the administration like White House Press Secretary Sean Spicer’s claim last week that “the relationship with Mexico is phenomenal right now.”

Bilateral relations with Mexico are on the rocks “big league,” and if Mr. Spicer doesn’t know that, he should get out more. Declaring otherwise undermines presidential credibility and leaves Trump fence-sitters to wonder what else the press secretary is making up.

Millions of American workers, investors and entrepreneurs who depend on trade with Mexico and Canada under the North American Free Trade Agreement are right to be worried. Unless President Trump finds a way to climb down from his position that Mexico cheats the U.S. under Nafta, their livelihoods are at risk.

Courteousness and formality are signs of good breeding in Mexican society and this often produces, in foreigners, illusions of approval. But when the extranjeros are out of earshot, locals can be colorful. It is now fashionable to hold protest marches, beat Trump piñatas, burn effigies with orange hair and even post vulgarities about the U.S. president on public buses. Angry does not begin to describe the popular mood.”


Read the entire article at the link. My main question is why would the Trump Administration pick this unnecessary fight with a neighbor whose goodwill, economic partnership, and cooperation we depend on?



USA TODAY: Former Bush, Obama DHS Execs Say Expanded Expedited Removal Could Be Legally Problematic

Alan Gomez reports:

“That expansion threatens the constitutional rights of undocumented immigrants who may get mistakenly deported, warned John Sandweg, who headed Immigration and Customs Enforcement (ICE) under President Obama.

“The Supreme Court has consistently held that even undocumented immigrants are entitled to due process,” he said.

Sandweg added that expedited removals have been a valuable tool for immigration agents working near the border when they are dealing with clear-cut cases of illegal entry.

Julie Myers Wood, who headed ICE under President George W. Bush, agreed. She said her team considered expanding expedited removals, but decided against it because of legal concerns. She said other aspects of Trump’s tougher immigration enforcement plan also may run afoul of the law.

“Many of these authorities have never been used that way,” Wood said. “The administration is really testing the parameters of what’s acceptable. There is some litigation risk there.”


Stay tuned.



Dean Kevin Johnson Summarizes Today’s SCt Argument In Esquivel-Quintana v. Sessions For SCOTUS Blog — Issue: Sexual Abuse Of A Minor!

“The question before the Supreme Court is whether Esquivel-Quintana’s conviction constitutes an “aggravated felony” as “sexual abuse of a minor” under U.S. immigration law. The case raises fascinating, and complex, questions about Chevron deference to an agency’s reasonable interpretation of an ambiguous statute and about the rule of lenity that is generally applied to the interpretation of removal and criminal laws.

. . . . .

In sum, the justices did not seem to have reached a consensus as to whether Esquivel-Quintana’s crime constituted “sexual abuse of a minor” under the immigration laws. The justices’ questions revealed the complicated interaction among the relevant statutory provisions; the high stakes of removal for lawful permanent residents, the complex state/federal issues involved, and the intersection of criminal and immigration law add to the difficulty and significance of this case. A decision is expected by the end of June.”





New From 4th Cir: BIA Applied Wrong Standard In Determining Bona Fides Of Marriage — Upatcha v. Sessions, 02-22-17


The “good faith marriage standard” for waiver is a legal determination subject to de novo (rather than “clear error”) review.



Alexandria Churches Walk In Solidarity With Hispanic Neighbors In Arlandria!

Led by Father Robert Malm of Grace Episcopal Church and Pastor Deborah Porras of Beverley Hills Community United Methodist Church, members of both Alexandria, VA congregations joined together for a walk through the Arlandria Area of Alexandria to show solidarity and support with neighbors from the Hispanic migrant community. The walk took place on Sunday Morning, February 26, 2018.  As noted by Father Malm, God sent a perfect day for a walk.  Pictures below.



NYT OPINION: Migrant Children & Their Families Deserve Fair Treatment!

Sonia Nazario writes:

“Last year 7-year-old Kendra Cruz Garcia and her 10-year-old-brother, Roberto Guardado Cruz, crossed the Rio Grande alone. When their tiny boat reached the shore, they started walking into Texas.

The Border Patrol agents who soon caught the Salvadoran siblings deemed them “unaccompanied” because no parent was with them. Children with this designation are granted special, well-deserved protections.

They aren’t subject to quick deportation and are entitled to a full hearing before an immigration judge. They can’t be held for long periods in immigration jails. Instead, they are transferred to child-friendly shelters operated by Health and Human Services’ Office of Refugee Resettlement, and released, usually within a month, to a parent, relative or sponsor while their court hearings proceed. Instead of facing cross-examination by adversarial prosecutors, children are interviewed by an asylum officer trained to gently probe whether they qualify to stay in the country legally.

In other words, they are treated with kindness and decency by our government because they are innocent children.


But President Trump has decided to get tough on many of the 60,000 Central American children who arrive at our border each year begging for safety after fleeing some of the most dangerous places on earth. His executive orders, and memos from the Department of Homeland Security on how to interpret them, could strip this special treatment from the roughly 60 percent of unaccompanied children who have a parent already living in the United States. If Kendra and Roberto were just entering the United States now, they would fall into this group; instead they kept their protections and were eventually united with their mother, a house painter in Los Angeles.

Parents like her, the argument goes, are exploiting benefits established to help children who really are alone here. The administration has threatened to deport parents who send for their children or prosecute them for hiring smugglers.

Last week Mr. Trump’s press secretary said the president’s intention was to prioritize the deportation of immigrants who “represent a threat to public safety.” Supporters say he’s upholding the law. But these children are not threats, and there are many ways to preserve the integrity of our immigration laws while treating them humanely.”


I have written on a number of occasions that turning our collective backs on families and children in need of protection will come back to haunt us as a nation.




NYT: Is The Trump Administration Creating A “New Underground” In America?


“New deportation rules proposed by the Trump administration risk creating an American underclass with parallels to others around the world: slum residents in India, guest workers in oil-rich Persian Gulf states and internal migrant workers in China.

Those groups provide a cautionary tale for what could happen if the 11 million undocumented immigrants in the United States, as well as their family members, are forced deep into the shadows.

Stuck in a gray zone outside the legal system, they are vulnerable to exploitation, including wage theft and sex trafficking. Because they are denied formal protections or services, informal alternatives take their place — creating an ideal space for corruption, gangs and other forms of criminality.

The result is often the precise opposite of what the administration is seeking: not a cohesive society but a fragmented one, not less crime but more, and, rather than ending undocumented immigration, deepening the secrecy that makes it difficult to manage.”


Read the full article at the link.



WashPost VA POLITICS: Gov. McAuliffe Meets With DHS Sec. Kelly — Says DHS Assures No “Random Raids!”

Gregory S. Schneider reports:

“Virginia Gov. Terry McAuliffe (D) said Department of Homeland Security Secretary John F. Kelly assured him Sunday that immigration agents are not conducting random raids and will not target undocumented residents unless they are suspected of being involved in illegal activity.

“He explained to me what the new procedures were,” McAuliffe said Sunday after a private 45-minute briefing with Kelly, who is a retired general. “I do take a four-star U.S. Marine general at his word.”


Sure seems like Gen. Kelly and the White House are giving different messages here.





NEW SCHOLARSHIP: Hon. Dorothy Harbeck Compares Immigration Bonds With The NJ Bail Reform Act

Harbeck – BondArticle for Dissemination

The article is entitled


Judge Harbeck writes:

“[T]he New Jersey Bail Reform will not directly affect how the immigration courts determine immigration bonds. However, while the state criminal system is wholly distinct from the federal immigration system, there are increasing intersections of state law having unintended consequences in immigration proceedings. Under the Supremacy Clause of the US Constitution, federal law is the “Supreme Law of the Land,” and states have no authority to regulate immigration enforcement. That said, there are a number of similar rationales between the new state bail reform and the existing bond determination criteria in the immigration court. This article outlines those similarities as well as the differences between the two. It is also important to note from a practical point of view that New Jersey bail reform has no impact on immigration detainers. An immigration detainer is the process by which Immigration and Customs Enforcement (ICE), a component of the Department of Homeland Security (DHS) may detain a non-citizen without a warrant, but only if ICE has “reason to believe” that the non-citizen “is likely to escape before a warrant can be obtained for his arrest.”


Read the full article at the link. While Judge Harbeck’s timely scholarship is of particular interest to New Jersey lawyers, it is also helpful for any lawyer seeking to understand the bond setting process in U.S. Immigration Courts. With the Administration’s new enforcement initiatives underway, bond is sure to be a “hot topic.”



Nolan Rappaport Comments On Expansion of Expedited Removal In “The Hill”

Nolan writes:

“Knowing that an alien in the United States who is charged with being deportable has a statutory right to a hearing before an immigration judge and that there is a backlog crisis in our immigration courts, I predicted that President Donald Trump would not be able to deport millions of undocumented immigrants.

Since then, the backlog has gotten even higher. As of the end of January 2017, it was 542,411 cases and the average wait time for a hearing was almost 700 days.

Even if the immigration judges did not receive any additional cases, it would take them more than two-and-a-half years to catch up.

But President Trump has finessed his way around this problem by implementing a little-known expedited removal provision in his executive order (EO), “Border Security and Immigration Enforcement Improvements.” The provision is section 235(b)(1)(A)(iii)(II) of the Immigration and Nationality Act (INA).

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 established expedited removal proceedings to deal with fraud and willful misrepresentations at ports of entry and to stop aliens with bogus asylum claims from being admitted for asylum hearings before an immigration judge. Many of them absconded instead of appearing at their hearings.
Under expedited removal proceedings, which are conducted by immigration officers, an alien who lacks proper documentation or has committed fraud or willful misrepresentation of facts to gain admission into the United States is inadmissible and may be removed without a hearing before an immigration judge. Aliens subject to expedited removal must be detained until they are removed and normally may only be released due to a medical emergency.”


I agree with Nolan that the intent of the Trump Executive Order is to reduce the number of individuals who will be entitled to “full” removal hearings before an Immigration Judge. But, even if the Administration applies expedited removal in its broadest permissible form under the statute — to individuals who have been in the U.S. for less than two years, the vast majority of individuals in the U.S. without documentation will still be entitled to hearings in U.S. Immigration Court.

First, for a number of reasons, and quite contrary to the Trump Administration’s alarmist rhetoric, illegal entries have been declining over recent years. The overwhelming number of the estimated 11 million undocumented migrants in the U.S have been here at least two years and would therefore be entitled to full hearings.

The estimated number of undocumented migrants in the United States has actually dropped by one million, from approximately 12 million around 2007 to approximately 11 million today. And, although neither the Trump Administration nor most Republican legislators are willing to admit it, at least some of the credit belongs to the Obama Administration for increased border enforcement.

Moreover, the bulk of the undocumented arrivals over the past several years have been children, women, and families fleeing violence and corruption in the Northern Triangle of Central America. Most turn themselves in to the authorities at the border or shortly after crossing the border and seek asylum. The majority of those have been determined to have a “credible fear” of persecution and therefore have already been placed in removal proceedings.

As Nolan points out in his article, individuals who have not applied for asylum within one year of entry are prima facie barred from seeking asylum. However, there are exceptions to this rule for those who can demonstrate fundamentally changed circumstances or extraordinary circumstances directly related to the delay in filing.

Perhaps even more significantly, the one year bar does not apply to claims for protection under the withholding of removal provisions of the Immigration and Nationality Act, nor does it apply to claims under the Convention Against Torture. Other forms of relief under the Act also remain available to individuals who failed to timely file for asylum.

Additionally, even where an individual is subject to “expedited removal” she or he is still be entitled to a full removal hearing before an Immigration Judge if a DHS Asylum Officer finds that such individual has a “credible fear” of persecution.

As Nolan also points out, even where an Asylum Officer finds “no credible fear,” an individual may seek review by an Immigration Judge. Such reviews should take precedence over other types of detained hearings. Consequently, a dramatic increase in “credible fear” denials could well result in Immigration judges spending more time on such hearings and therefore having less time to conduct actual individual hearings on removability and relief.

While to date, the Article III Courts have seemed to accept the statutory limitations on their ability to review expedited removal and credible fear determinations, the Administration’s attempt to “ratchet up” summary removals is almost certainly going to draw more sophisticated constitutional challenges to the process from the advocacy community. And if, as is likely, the Administration “pushes the envelope” by attempting to remove individuals on an expedited basis without giving them a fair chance to obtain evidence that they have been present for two or more years, the Article III Courts are at some point likely to intervene to force at least some procedural due process into the system.

Consequently, notwithstanding efforts by the Trump Administration to circumvent the Immigration Court process, the new enforcement initiatives are still likely to put more than enough new cases before the Immigration Courts to crush an already overwhelmed system.







HuffPost: Sessions Reinstates Dangerous Private Prisons — Health & Safety of Inmates Takes Back Seat to Expediency And Profits For Private Prison Industry!

Ryan J. Reilly a Ben Walsh report:

“WASHINGTON ― Attorney General Jeff Sessions on Thursday withdrew an Obama-era Justice Department memo that set a goal of reducing and ultimately ending the Justice Department’s use of private prisons.

In a one-page memo to the acting head of the Bureau of Prisons, Sessions wrote that the August 2016 memo by former Deputy Attorney General Sally Yates “changed long-standing policy and practice, and impaired the Bureau’s ability to meet the future needs of the federal correctional system.”

A Justice Department spokesman said Sessions’ memo “directs the Bureau of Prisons to return to its previous approach to the use of private prisons,” which would “restore BOP’s flexibility to manage the federal prison inmate population based on capacity needs.”

BOP currently has 12 private prison contracts that hold around 21,000 inmates. Yates had said that private prisons compared “poorly” to BOP prisons. Her memo followed a damning report from the Justice Department’s inspector general which found that privately run facilities were more dangerous than those run by BOP.

The two largest private prison companies have told investors that they have room to accommodate increased use of their prisons by federal or state and local authorities. On an earnings call with stock analysts this week, executives at GEO Group emphasized that their company has a total of 5,000 spots in its prisons that are presently either unused or underutilized.

GEO senior vice President David Donahue put it fairly bluntly, telling analysts that their idle and underutilized cells are “immediately available and meet ICE’s national detention standards.”

CoreCivic, formerly known as CCA, told investors on Feb. 17 that the company has nine idle prisons that can hold a total of 8,700 people. Those prisons are ready to accept inmates on short notice. “All of our idle facilities are modern and well maintained, and can be made available to potential state and federal partners without much, if any capital investment or the lead-time required for new construction,” CEO Damon Hininger said.

Indeed, Haninger said that CoreCivic was already holding more detained immigrants for the federal government than they anticipated. “Our financial performance in the fourth quarter of 2016 was well above our initial forecast due, in large part, to heightened utilization by ICE across the portfolio,” he said.

And, Haninger said, the Trump administration’s actions could boost financial performance even further. “When coupled with the above average rate crossings along the Southwest border, these executive orders appear likely to significantly increase the need for safe, humane and appropriate detention bed capacity that we have available in our existing real-estate portfolio,” he said. “We are well positioned,” to get more business from ICE, Haninger said.

David C. Fathi, who directs the American Civil Liberties Union’s National Prison Project, said that giving for-profit companies control of prisons is “a recipe for abuse and neglect.” He said the Sessions memo was a further sign the U.S. “may be headed for a new federal prison boom” under the Trump administration.”


The disaster of Jeff Sessions as U.S. Attorney General continues to unfold. Contrary to what he told Senators during his contentious confirmation hearings, he’s the same old tone-deaf, insensitive, hard-liner he’s always been. There will be wrongful death suits in Sessions’s future naming him personally. While these so-called “Bivens actions” are usually a steep uphill climb for plaintiffs, given that Sessions acted with knowledge of both the Inspector General’s highly negative findings and his predecessor’s resulting action to curb private prison use, there could be a case there. I hope he took out personal liability insurance and got the highest amount of coverage. He might need it before his tenure is up.

And, as for the inmates and civil immigration detainees who are going to be kept in substandard conditions, I guess it’s just “tough noogies” as far as Sessions is concerned.