April 2017 – Page 2 – immigrationcourtside.com

BLOCKED: Federal Judge Rebuffs Trump On Sanctuary Cities –Trump/Sessions Undermine Own Position — Trump Remains Defiantly Clueless!

http://www.politico.com/story/2017/04/25/sanctuary-cities-trump-judge-blocks-237597

Josh Gerstein reports in Politico:

“A federal judge has blocked a directive from President Donald Trump seeking to deny federal funding to so-called “sanctuary cities” and other localities that decline to cooperate in enforcement of federal immigration laws.

San Francisco-based U.S. District Court Judge William Orrick issued a preliminary injunction Tuesday barring federal officials nationwide from carrying out the portion of a Jan. 25 Trump executive order aimed at cutting off grants to local governments that won’t provide assistance to federal authorities in locating and detaining undocumented immigrants.

Orrick cited public comments from Trump and Attorney General Jeff Sessions in concluding that the order appeared intended to sweep more broadly than allowed by federal law. The judge, an Obama appointee, called “not legally plausible” the Justice Department’s arguments that Trump was simply trying to secure compliance with current law.

“If there was doubt about the scope of the Order, the President and Attorney General have erased it with their public comments,” Orrick wrote. “The Constitution vests the spending power in Congress, not the President, so the Order cannot constitutionally place new conditions on federal funds.”

The White House late Tuesday condemned the ruling in harsh terms.

“Today, the rule of law suffered another blow, as an unelected judge unilaterally rewrote immigration policy for our Nation,” the press secretary’s office said in a statement, adding:

“Once again, a single district judge — this time in San Francisco — has ignored Federal immigration law to set a new immigration policy for the entire country. This decision occurred in the same sanctuary city that released the 5-time deported illegal immigrant who gunned down innocent Kate Steinle in her father’s arms. ”

The ruling is another high-profile blow to Trump’s efforts to use executive orders to carry out major policy moves— a drive his staff is highlighting as he approaches the 100-days-in-office mark. Courts have also blocked key portions of two of the president’s other immigration-related executive orders — his travel bans on citizens of several majority Muslim countries.

However, Orrick noted that his new injunction may not block much of what the Trump administration claimed in court it was trying to do through the portion of the Jan. 25 order targeting sanctuary cities. If all Trump wanted to do was cut off Justice Department grants to localities that are out of compliance with the law, he can still do that, the judge observed.

“This injunction does nothing more than implement the effect of the Government’s flawed interpretation of the Order,” Orrick wrote.

Justice Department spokesman Ian Prior did not say whether an appeal is planned, but he emphasized that the judge did not block the federal government from enforcing federal law as it now stands.

. . . .

The judge concluded that the California localities were correct to be concerned that their funding was in jeopardy and that the grants affected might be more than just the few the Justice Department said were covered by Trump’s order.

“Although Government counsel has represented that the Order will be implemented consistent with law, this assurance is undermined by Section 9(a)’s clearly unconstitutional directives. Further, through public statements, the President and Attorney General have appeared to endorse the broadest reading of the Order,” Orrick added.

“Is the Order merely a rhetorical device, as counsel suggested at the hearing, or a ‘weapon’ to defund the Counties and those who have implemented a different law enforcement strategy than the Government currently believes is desirable? The result of this schizophrenic approach to the Order is that the Counties’ worst fears are not allayed and the Counties reasonably fear enforcement under the Order,” the judge wrote.”

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The complete report, along with a link to Judge Orrick’s full opinion can be found at the above link. The case is County of Santa Clara v. Trump.

PWS

04-26-17

PRECEDENT: BIA Opines On “Divisibility” In Agfel Cases — Matter of CHAIREZ-CASTREJON, 27 I&N Dec. 21 (BIA 2017)

https://www.justice.gov/eoir/page/file/959656/download

Here’s the BIA headnote:

“In determining whether a statute is divisible under Mathis v. United States, 136 S. Ct. 2243 (2016), Immigration Judges may consider or “peek” at an alien’s conviction record only to discern whether statutory alternatives define “elements” or “means,” provided State law does not otherwise resolve the question.”

PANEL: Appellate Immigration Judges Pauley, Greer, Malphrus

OPINION BY: Judge Pauley

CONCURRING OPINION BY: Judge Malphrus

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This case is unusual because BIA Judges seldom file “separate opinions” in published decisions these days.

In his concurring opinion, Judge Garry D. Malphrus appears to be both questioning whether the Supreme Court’s approach to statutory “divisibility” analysis comports with congressional intent in immigration matters and inviting Congress to perhaps change the INA so that the BIA and the Immigration Judges could examine the facts of the case, as set forth in the record of conviction, to determine whether the individual should be removed. Judge Malphrus says in his conclusion:

“Here, we must presume that the respondent committed the least of the acts criminalized within the range of conduct punishable under his statute of conviction. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013). This is true even though the respondent’s plea agreement indicates that he did more—specifically, that he knowingly discharged a firearm at another, and thus he committed an aggravated felony crime of violence. See id.

The approach to divisibility required by Descamps and Mathis will result in immigration proceedings being terminated for many aliens who have committed serious crimes in the United States. See, e.g., Ramirez v. Lynch, 810 F.3d 1127, 1134–38 (9th Cir. 2016) (reversing the order of removal upon concluding that the California statute proscribing felony child abuse was not divisible, and thus it was improper to consider the conviction records in determining whether the alien’s conviction constituted an aggravated felony crime of violence). [footnote omitted]. It is for Congress to determine whether this approach is consistent with its intent regarding the immigration consequences of such criminal conduct.”

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Another observation: How could an unrepresented respondent charged under this section possibly defend himself consistent with due process when the law is so complex and convoluted. This particular respondent was fortunate enough to have a lawyer, and as we can see, he was able to achieve a favorable result. But, recent studies have shown that the overwhelming number of respondents in detention (as individuals charged as “agfels” must be) must proceed without counsel. http://wp.me/p8eeJm-Gv

PWS

04-24-17

Is Jeff Sessions About To Go After Tax Credits For U.S. Citizen Kids To Fund “The Wall?” — Sessions’s Motives Questioned — CA Girds For Legal Battle With USDOJ! — Trump Administration Fuels Federal Civil Litigation Bonanza!

http://theweek.com/speedreads/694129/sessions-says-mexicans-pay-border-wall-way-another

Bonnie Kristian reports in TheWeek.com:

“We’re going to get paid for it one way or the other,” Attorney General Jeff Sessions said of President Trump’s proposed border wall while speaking with ABC’s George Stephanopoulos on Sunday. After raising the issue, Stephanopoulos asked if Sessions has any evidence Mexico will fund construction, as Trump repeatedly promised on the campaign trail.

Sessions conceded he does not expect the government of Mexico to “appropriate money,” but maintained the United States has other options to get money from Mexicans. We could “deal with our trade situation to create the revenue,” he suggested, or, “I know there’s $4 billion a year in excess payments,” Sessions continued, “tax credits that they shouldn’t get. Now, these are mostly Mexicans. And those kind of things add up — $4 billion a year for 10 years is $40 billion.”

Sessions appears to be referencing a 2011 audit report Trump also cited while campaigning. As Politifact explains, the report said that in 2011, $4.2 billion in child tax credits was paid to people filing income taxes using an Individual Taxpayer Identification Number (ITIN) instead of a Social Security number. Some of these filers are illegal immigrants, but many are legal foreign workers, and the audit did not say how many are Mexican.

“The vast majority of that $4.2 billion, the filer may be undocumented, but you have to have a child to receive it,” said Bob Greenstein of the Center on Budget and Policy Priorities. “And the children are overwhelmingly U.S. citizens.” Watch an excerpt of Sessions’ remarks below. Bonnie Kristian”

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Go to the above link to see the ABC clip that Kristian references at the end of her article.

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Reaction from Daily Kos wasn’t very subtile. Here’s Gabe Ortiz’s “headliner:”

“Racist-as-all-hell Sessions: Child tax credits going to ‘mostly Mexicans’ can pay for the wall”

Read Ortiz’s article here:

http://www.dailykos.com/story/2017/04/24/1655786/-Racist-as-all-hell-Sessions-Tax-credits-to-mostly-Mexicans-can-pay-for-the-wall

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Ortiz isn’t the only one to publicly “call out” Sessions’s motivation for his almost daily attacks on immigrants. Here’s what California State Senate leader Kevin de Leon (D-Los Angeles) had to say, as reported in the L.A. Times: “It has become abundantly clear that Atty. Gen. [Jeff] Sessions and the Trump administration are basing their law enforcement policies on principles of white supremacy — not American values. . . .”

Read the full L.A. Times article, including Republican reaction to de Leon’s remarks, here:

http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-california-senate-leader-says-white-1492803106-htmlstory.html?utm_source=Politics&utm_campaign=b41d4376f3-EMAIL_CAMPAIGN_2017_01_03&utm_medium=email&utm_term=0_db59b9bd47-b41d4376f3-81147225

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De Leon was not the only California public official to strike back at Sessions’s attack on so-called “Sanctuary cities” last week. As reported in the L.A. Times, in a “Battle of the AGs:”

“[California Attorney General Xavier] Becerra said on Friday that threats to withhold federal funds from states and cities that limit cooperation with federal immigration authorities are reckless and undermine public safety.

. . . .

Becerra said Sunday that California is ready to fight any attempt to withhold federal funds.

“Whoever wants to come at us, that’s hostility, we’ll be ready,” Becerra said. “We’re going to continue to abide by federal law and the U.S. Constitution. And we’re hoping the federal government will also abide by the U.S. Constitution, which gives my state the right to decide how to do public safety.”

The state attorney general was skeptical about comments by President Trump in recent days that so-called Dreamers —young immigrants brought to this country illegally by a parent — will not be targeted for immigration enforcement.

“It’s not clear what we can trust, what statement we can believe in, and that causes a great deal of not just anxiety, but confusion — not just for those immigrant families, but for our law enforcement personnel,” Becerra said.

He also denounced the Trump proposal to build a wall at the U.S.-Mexico border as a “medieval solution” to immigration issues, adding that neither U.S. taxpayers nor Mexico want to pay for the proposal.”

Read there full report here:

http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-u-s-atty-gen-sessions-disputes-1492964508-htmlstory.html?utm_source=Politics&utm_campaign=b41d4376f3-EMAIL_CAMPAIGN_2017_01_03&utm_medium=email&utm_term=0_db59b9bd47-b41d4376f3-81147225

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I reported some time ago that California was “lawyering up” by hiring none other than former U.S. Attorney General Eric Holder to advise on litigation strategies to resist the Fed’s efforts to punish “sanctuary jurisdictions.” Here’s a link to my earlier blog: http://wp.me/p8eeJm-4w.

Lots of Attorneys General and former Attorneys General could be involved in this one before it’s over! As I’ve said from the beginning, whatever he might do for U.S. workers, President Trump is a huge boon to the legal industry! If you doubt this, just go on over to TRAC Immigration and see how civil immigration litigation has increased dramatically under Trump. http://trac.syr.edu/immigration/reports/467/ . (Thanks to Nolan Rappaport for forwarding this to me!)

Instead of solving legal problems, it appears that A.G. Jeff “Gonzo-Apocalypto” Sessions is fixated on going to war with the “other America” that doesn’t share his and Trump’s negative views of immigrants. Stay tuned!

PWS

04-24-17

TRUMP’S “DISSING” OF MEXICO MIGHT BACKFIRE — BIG TIME! — If Mexico Plays The “China Card” The U.S. Might Regret Electing A Bully As President!

https://www.theatlantic.com/magazine/archive/2017/05/mexicos-revenge/521451/

Franklin Foer writes in The Atlantic:

“The Mexico–U.S. border is long, but the history of close cooperation across it is short. As recently as the 1980s, the countries barely contained their feelings of mutual contempt. Mexico didn’t care for the United States’ anticommunist policy in Central America, especially its support of Nicaraguan rebels. In 1983, President Miguel de la Madrid obliquely warned the Reagan administration against “shows of force which threaten to touch off a conflagration.” Relations further unraveled following the murder of the DEA agent Enrique “Kiki” Camarena in 1985. Former Mexican police officers aided drug traffickers who kidnapped and mercilessly tortured Camarena, drilling a hole in his skull and leaving his corpse in the Michoacán countryside. The Reagan administration reacted with fury at what it perceived as Mexican indifference to Camarena’s disappearance, all but shutting down the border for about a week. The episode seemed a return to the fraught days of the 1920s, when Calvin Coolidge’s administration derided “Soviet Mexico” and Hearst newspapers ginned up pretexts for a U.S. invasion.

. . . .

Once the threat of Soviet expansion into the Western Hemisphere vanished, the United States paid less-careful attention to Latin America. It passively ceded vast markets to the Chinese, who were hunting for natural resources to feed their sprouting factories and build their metropolises. The Chinese invested heavily in places like Peru, Brazil, and Venezuela, discreetly flexing soft power as they funded new roads, refineries, and railways. From 2000 to 2013, China’s bilateral trade with Latin America increased by 2,300 percent, according to one calculation. A raft of recently inked deals forms the architecture for China to double its annual trade with the region, to $500 billion, by the middle of the next decade. Mexico, however, has remained a grand exception to this grand strategy. China has had many reasons for its restrained approach in Mexico, including the fact that Mexico lacks most of the export commodities that have attracted China to other Latin American countries. But Mexico also happens to be the one spot in Latin America where the United States would respond with alarm to a heavy Chinese presence.

That sort of alarm is just the thing some Mexicans would now like to provoke. What Mexican analysts have called the “China card”—a threat to align with America’s greatest competitor—is an extreme retaliatory option. Former Mexican Foreign Minister Jorge Castañeda told me he considers it an implausible expression of “machismo.” Unfortunately, Trump has elevated machismo to foreign-policy doctrine, making it far more likely that other countries will embrace the same ethos in response. And while a tighter Chinese–Mexican relationship would fly in the face of recent economic history, Trump may have already set it in motion.

The painful early days of the Trump administration have reminded Mexico of a core economic weakness: The country depends far too heavily on the American market. “Mexico is realizing that it has been overexposed to the U.S., and it’s now trying to hedge its bets,” says Kevin Gallagher, an economist at Boston University who specializes in Latin America. “Any country where 80 percent of exports go to the U.S., it’s a danger.” Even with a friendly American president, Mexico would be looking to loosen its economic tether to its neighbor. The presence of Trump, with his brusque talk of tariffs and promises of economic nationalism, makes that an urgent task.Until recently, a Mexican–Chinese rapprochement would have been unthinkable. Mexico has long steered clear of China, greeting even limited Chinese interest in the country with wariness. It rightly considered China its primary competition for American consumers. Immediately after nafta went into effect in 1994, the Mexican economy enjoyed a boom in trade and investment. (A flourishing U.S. economy and an inevitable turn in Mexico’s business cycle helped account for these years of growth too.) Then, in 2001, the World Trade Organization admitted China, propelling the country further into the global economy. Many Mexican factories could no longer compete; jobs disappeared practically overnight.Mexico’s hesitance to do business with the Chinese was also a tribute to the country’s relationship with the “Yanquis.” A former Mexican government official told me that Barack Obama’s administration urged his country to steer clear of Chinese investment in energy and infrastructure projects. These conversations were a prologue to the government’s decision to scuttle a $3.7 billion contract with a Chinese-led consortium to build a bullet train linking Mexico City with Querétaro, a booming industrial center. The cancellation was a fairly selfless gesture, considering the sorry state of Mexican infrastructure, and it certainly displeased the Chinese.

But China has played the long game, and its patience has proved farsighted. The reason so many Chinese are ascending to the middle class is that wages have tripled over the past decade. The average hourly wage in Chinese manufacturing is now $3.60. Over that same period of time, hourly manufacturing wages in Mexico have fallen to $2.10. Even taking into account the extraordinary productivity of Chinese factories—not to mention the expense that comes with Mexico’s far greater fidelity to the rules of international trade—Mexico increasingly looks like a sensible place for Chinese firms to set up shop, particularly given its proximity to China’s biggest export market.Mexico began quietly welcoming a greater Chinese presence even before the American presidential election. In October, China’s state-run media promised that the two countries “would elevate military ties to [a] new high” and described the possibility of joint operations, training, and logistical support. A month and a half later, Mexico sold a Chinese oil company access to two massive patches of deepwater oil fields in the Gulf of Mexico. And in February, the billionaire Carlos Slim, a near-perfect barometer of the Mexican business elite’s mood, partnered with Anhui Jianghuai Automobile to produce SUVs in Hidalgo, a deal that will ultimately result in the production of 40,000 vehicles a year. These were not desultory developments. As Beijing’s ambassador to Mexico City put it in December, with the American election clearly on the brain: “We are sure that cooperation is going to be much strengthened.”. . . .

Not so long ago—for most of the postwar era, in fact—the United States and Mexico were an old couple who lived barely intersecting lives, hardly talking, despite inhabiting the same abode. Then the strangest thing happened: The couple started chatting. They found they actually liked each other; they became codependent. Now, with Trump’s angry talk and the Mexican resentment it stirs, the best hope for the persistence of this improved relationship is inertia—the interlocking supply chain that crosses the border and won’t easily pull apart, the agricultural exports that flow in both directions, all the bureaucratic cooperation. Unwinding this relationship would be ugly and painful, a strategic blunder of the highest order, a gift to America’s enemies, a gaping vulnerability for the homeland that Donald Trump professes to protect, a very messy divorce.”

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Remember, folks, you read about the potential “Chinexico” disaster first on Courtside! http://wp.me/p8eeJm-AF

Pretty scary when we elect a President who might understand even less about the global politico-economic situation than a retired U.S. Immigration Judge!

PWS

04-234-17

HUFFPOST “SHOCKER:” Jeff Sessions Is A Hypocrite! — Home State Of Alabama More Dangerous Than Most “Sanctuary Cities!”

http://www.huffingtonpost.com/entry/the-hypocrisy-behind-jeff-sessions-crackdown-on-new_us_58fba934e4b086ce589811b0

Cody Lyon reports:

“I live in the biggest sanctuary municipality of them all―New York City―a place that celebrates its diversity, a melting pot of countless cultures where hard- working immigrants and their children can climb the educational and economic ladder. And it’s incredibly safe for a city its size, especially when compared to the rest of the country. The fact is, I feel five times more safe here than in most of Session’s home state, Alabama, which also happens to be where I grew up and visit often. Although Alabama’s biggest city, Birmingham, is going through an exciting economic and cultural rebirth, there are pockets of nasty violent crime that statistically make New York City look like Mayberry in comparison.

And, according to the US Centers for Disease Control and Prevention’s National Center for Injury Prevention and Control, Alabama had the third-highest rate of death by guns in the United States (behind Alaska, Montana and Louisiana). Nonetheless, Alabama’s affection for guns runs deep. State leaders in Montgomery just passed a bill eliminating the requirement for a permit from a county sheriff to carry a concealed handgun.

The bloodshed in Session’s own backyard didn’t stop him from citing Chicago’s spike in gun violence or a gang-bust in the Bay Area, and then he launched into a rant about New York City and the danger it faces from immigrants and transnational gangs.

“New York City continues to see gang murder after gang murder, the predictable consequence of the city’s ‘soft on crime’ stance,” said the DOJ statement.

New York City Mayor Bill DeBlasio wasted no time hitting back on the “soft stance” quip. He wrote in the New York Daily News Saturday that “New York City’s record on public safety is nothing less than stunning. This is a city of 8.5 million people. We host around 60 million visitors a year. Yet, we continue to beat our own records on driving down crime.”

New York City has seen crime fall for the past quarter-century. “Last year was the safest in this city’s modern, recorded history. Last year, we had the fewest shootings,” wrote the mayor.

New York City has been doing something right. In 1990, more than 2,300 people were murdered here. By 2016, that number had dropped to 355. Since 1993 overall crime in this city has fallen 73 percent according to NYPD.

Meanwhile, in cities such as Memphis, population 600,000, there were 228 murders in 2016; in St. Louis, a town of just over 300,000, 188 murders in 2016. And, in mine and Jeff Sessions’ beloved native home state sits Birmingham, a city with barely more than 200,000 people which saw 104 people murdered in 2016.

Sanctuary cities do not permit municipal funds or resources to be applied in furtherance of enforcement of federal immigration laws―at least on paper. These cities normally do not permit police or municipal employees to inquire about one’s immigration status.

Truth be told, U.S. citizens are more likely to commit a violent crime than immigrants. Numerous studies have confirmed this. Jeff Sessions is promoting biased and xenophobic illogic. People like Sessions and President Trump are experts at exploiting fear and ignorance.

There is a also a deep scent of hypocrisy wafting from the Trump administration justice department. If Jeff Sessions and other Trump administration officials truly wanted to take a bite of crime, they would focus their energies on the abject poverty, isolationism, and the social, educational as well as economic inequity infecting many of our cities and rural areas. These are places where poverty equals hopelessness and hopelessness is a state where survival at any cost is the reality. Violent crime festers in communities and conditions like that. I’d argue that Jeff Sessions should consider New York City’s remarkable decline in violence as something to aspire to. Perhaps he could pay the city a visit, and learn a thing or two that could be implemented in places like Alabama.”

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Perhaps it’s time for Sessions to “can” the “Gonzo-Apocalypto” act, learn from the many things that so-called “sanctuary cities” are doing right, and concentrate on “getting his own house” in order in Alabama and other GOP-dominated southern states that consistently rank among the worst, and most dangerous, places to live in the U.S.

PWS

04-23-17

Haitians Next Target Of Trump’s Xenophobic Cruelty? — USCIS “Tanks” On TPS Extension — Haitian Country Conditions No Better, But U.S. Political Conditions Have “Changed!”

https://www.washingtonpost.com/opinions/the-united-states-may-be-about-to-inflict-a-massive-hardship-on-haiti/2017/04/22/a0741cb2-26ad-11e7-bb9d-8cd6118e1409_story.html

From the Washington Post on Sunday, April 23:

“By Editorial Board April 22

POVERTY IN Haiti, by far the most destitute country in the Americas, is so extreme that it defies most Americans’ imaginations. Nearly 60 percent of Haitians live on less than $2.42 per day; a quarter of Haitians scratch out a living on half that amount. That the United States would intentionally inflict a sudden, massive and unsustainable hardship on such a country — one already reeling from a series of natural and man-made disasters — defies common sense, morality and American principles. Yet that is exactly what Homeland Security Secretary John F. Kelly is now considering.

Incredibly, an agency under Mr. Kelly’s purview has recommended that some 50,000 Haitians now living legally in the United States be expelled en masse next January. If Mr. Kelly approves the expulsion, it would be a travesty. It would, at a stroke, compound the humanitarian suffering in a nation of 10.4 million already reeling from a huge earthquake in 2010, an ongoing cholera epidemic that is the world’s worst and a devastating hurricane that swept the island only last fall.

The recommendation from U.S. Citizenship and Immigration Services, an agency within the Department of Homeland Security, involves Haitians who have lived in the United States since the 2010 earthquake and have been allowed to remain legally since then on humanitarian grounds, under a series of 18-month renewals.

Now, the agency proposes to revoke the “temporary protected status,” or TPS, under which those Haitians live and work in the United States, a move that would trigger an exodus into a country ill-equipped to absorb them. It would also sever a major source of income on which several hundred thousand Haitians depend — namely, cash sent back to the island by their relatives working in the United States.

In December, the same immigration agency now urging expulsion issued a report saying that the horrendous conditions that prompted the TPS designation in 2010 persist, including a housing shortage, the cholera epidemic, scanty medical care, food insecurity and economic wreckage.

Haiti’s fundamental economic situation is unchanged since that report. The effects of Hurricane Matthew, a Category 4 storm when it hit Haiti last October, were particularly devastating, leading to catastrophic losses to agriculture, livestock, fishing and hospitals in rural areas, plus nearly 4,000 schools damaged or destroyed, according to the World Bank. The value of those losses is estimated at $1.9 billion, more than a fifth of Haiti’s gross domestic product; the storm left more than a million Haitians in need of humanitarian aid.http://wp.me/p8eeJm-Jz

In addition to Haitians, citizens of a dozen other war-torn, poverty-stricken and disaster-struck countries living in the United States have been granted temporary protective status, including El Salvador and Nicaragua, both of which are richer than Haiti. For the United States, the hemisphere’s richest country, to saddle Haiti, the poorest, with what would amount to a staggering new burden would be cruel and gratuitous. It may also be self-defeating. It’s hardly unthinkable that a sudden infusion of 50,000 jobless people could trigger instability in a nation with a long history of upheavals that often washed up on U.S. shores. Food for thought, Mr. Kelly.”

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This is what happens in a politicized bureaucracy. Folks with their jobs on the line are afraid to speak truth or the truth is being suppressed by politicos. Is Gen. Kelly going to stand up for human values?

If TPS for Haitians is revoked, there would undoubtedly be a “grace period” for them to leave the U.S. voluntarily. Thereafter, they would be subject to Removal Proceedings. But, for those who do not have outstanding orders of removal, the prospects would be similar to what I have described if protections for “Dreamers” were rescinded.http://wp.me/p8eeJm-Jz

Most would go to the end of a line in the U.S. Immigration Courts stretching off for years into the future. But, lack of the work authorization that accompanies TPS status could be a problem for both the individuals and their U.S. employers.

PWS

04-23-17

TIME: Jeannette Vizguerra, Undocumented Activist, Named One Of The World’s 100 Most Influential People! Guess Who DIDN’T Make The List (Hint, Donald Trump, Of Course, Was On It)!

http://time.com/collection/2017-time-100/4736271/jeanette-vizguerra/

America Ferrera, Emmy-winning actor, producer and activist, profiles American heroine Vizguerra:

“Some families have emergency plans for fires, earthquakes or tornadoes. Jeanette Vizguerra’s family had an emergency plan for a dreaded knock at the door. If U.S. Immigration and Customs Enforcement officials came to her home, her children knew to film the encounter, alert friends and family and hide in the bedroom. The Vizguerra family lived in terror of being ripped apart by deportation.

Jeanette moved to the U.S. to be a janitor, working as an outspoken union organizer and building her own company before becoming an advocate for immigration reform—a bold and risky thing for an undocumented immigrant. After fighting off deportation for eight years, she decided to go public with her story and sought refuge in the basement of a Denver church.

The current Administration has scapegoated immigrants, scaring Americans into believing that undocumented people like Jeanette are criminals. She came to this country not to rape, murder or sell drugs, but to create a better life for her family. She shed blood, sweat and tears to become a business owner, striving to give her children more opportunities than she had. This is not a crime. This is the American Dream.”

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Among those who didn’t “make the list:” Attorney General Jeff “Gonzo-Apocalypto” Sessions and DHS Secretary John “The Parrot” Kelly.

PWS

04-23-17

JURIST: Christopher N. Lasch Says Sessions More Interested In Politics Than Justice!

http://www.jurist.org/forum/2017/04/the-political-attorney-general.php

Professor Lasch writes:

“As JURIST previously reported, Attorney General Jeff Sessions has threatened to cut Department of Justice funding to so-called “sanctuary” cities. The Attorney General’s comments during the White House press briefing on March 27, 2017, and on other occasions, demonstrate that our nation’s top law enforcement official is concerned far less with enforcing the law than with pursuing the Trump administration’s political agenda.

Ignoring the Law
Anti-sanctuary politicians like to claim that sanctuary cities defy or flout federal law. President Trump, for example, in his January 25 executive order on interior immigration enforcement, claimed that “[s]anctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States.” Echoing this, Attorney General Sessions on March 27 likewise tried to paint sanctuary policies as defying federal law. He said that the DOJ Inspector General previously “found that these policies … violate federal law.” PolitiFact rightly rated this claim “mostly false” after consulting with immigration law experts and reviewing the Inspector General’s report [PDF], which was fairly explicit in not reaching the conclusion that any particular policy violated the law.

Sessions’s inaccurate portrayal of the Inspector General’s report fits into a larger pattern of dishonesty about the law when it comes to sanctuary policies. His remarks on March 27 suggested that sanctuary policies might violate numerous federal laws. But only one specific statute has ever been cited by those (including President Trump, in his executive order, and Attorney General Sessions, in his March 27 remarks) who suggest sanctuary policies defy federal law: 8 U.S.C. § 1373.

8 U.S.C. § 1373 is a very narrow law, addressed only to prohibitions on local law enforcement sharing information with federal immigration officials concerning a person’s citizenship or immigration status. The overwhelming majority of “sanctuary” policies across the country have nothing to say about such information sharing. (San Francisco, for example, while perhaps the jurisdiction most often maligned by the anti-sanctuary campaign, takes the position that it complies with 8 U.S.C. § 1373). Instead, most policies address whether immigration “detainers” (requests by federal immigration officials for the continued detention of a state or local inmate who is otherwise entitled to release) will be accepted by local law enforcement.

Lack of compliance with detainers is what is really at stake in the current debate over sanctuary cities. We know this because while administration officials point to 8 U.S.C. § 1373 to support the claim that sanctuary policies violate federal law, they fail to discuss any claimed violations of 8 U.S.C. § 1373. Instead, they talk about jurisdictions failing to honor detainers—which is exactly where Attorney General Sessions took the conversation on March 27, trotting out the San Francisco case of Francisco Sanchez and the Denver case of Ever Valles as examples of prisoners released, despite ICE having lodged a detainer–only to be subsequently charged with murder.

We also know that detainers are what is really troubling the administration because the President’s executive order directed the Department of Homeland Security “on a weekly basis, [to] make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.” Attorney General Sessions cited this order on March 27 before turning to the Sanchez and Valles cases, claiming the DHS report showed “that in a single week, there were more than 200 instances of jurisdictions refusing to honor ICE detainer requests with respect to individuals charged or convicted of a serious crime.” The report, it turns out, was riddled with errors—”corrections” to the report issued by DHS included, for example, that Franklin County, Iowa; Franklin County, New York; and Franklin County, Pennsylvania were all erroneously listed as having declined detainers in the first report. Its issuance was discontinued after just three weeks.

Despite the obsession with declined detainers, Attorney General Sessions has in his remarks demonstrated utter obliviousness to the actual law governing detainers. On March 27, Sessions suggested honoring detainers was a “fundamental principle of law enforcement” and in February at a meeting of states’ attorneys general, Sessions called it a “shocking thing” that localities were not honoring detainers. These comments suggest unawareness of a steady stream of federal court decisions since 2014. The Third Circuit US Court of Appeals, in Galarza v. Szalczyk, established that localities cannot be compelled to honor detainers. A district court in Oregon held further that localities can be held liable for Fourth Amendment violations, given that the detention requested by federal officials amounts to a new warrantless arrest that must be justified under the Constitution. This line of precedent was sufficiently strong that the Obama administration put an end to the “Secure Communities” [PDF] program (which relied heavily on detainers) because of it.

If Sessions is aware of this body of law, he is not talking about it.

. . . .

These policy positions, however, are contradicted by all available data. Study [PDF] after study has shown that immigrants, regardless of status, commit crimes at lower rates than citizens. In the words of Michael Tonry [PDF[, “high levels of legal and illegal Hispanic immigration … [are] credited with contributing significantly to the decline in American crime rates since 1991.” And sanctuary policies have not made cities unsafe–the recent study by Tom K. Wong concludes that crime rates are lower and economic indicators are stronger in sanctuary jurisdictions.

JURIST guest columnist Ali Khan recently situated America’s current war on immigrants in global trends of nativism, racism and xenophobia. This, in my view, provides the answer to the question of what “countervailing principles” might cause Attorney General Sessions not only to ignore all available data on immigration, sanctuary, and crime, but to upend traditional Republican views on federal-versus-local control of policing. Trump’s anti-sanctuary rhetoric, I have argued [PDF], is racial rhetoric. It is part of an illogical, counterfactual, counter-legal, and highly successful political formula: Demonizing immigrants wins votes; deporting immigrants wins votes.

Sanctuary cities stand in the way of this political agenda. The Attorney General’s words and actions reveal that, when it comes to sanctuary cities, Jeff Sessions is not serving the role of chief law enforcement lawyer. He is just another politician chasing down votes for the President.”

***************************************

Sessions’s latest threats directed against so-called “sanctuary” jurisdictions have drawn some “robust pushback:”

As Jay Croft reports in CNN:

“(CNN)Insulting.

Out of touch.

Inaccurate.

Mayors of some of the so-called sanctuary cities were not impressed Friday with the Trump administration’s latest volley in the dispute over immigration policy. The Justice Department told the local government officials to share immigration information by June 30 on people who have been arrested — or lose federal money.

‘Civil deportation force’

“If anybody in the Trump administration would actually do some research before firing off letters, they would see that the city of New Orleans has already provided the Department of Justice documentation that shows we are in compliance with federal immigration laws,” Mayor Mitch Landrieu said in a statement.

New Orleans Mayor Mitch Landrieu

“This is another example of the Trump administration acting before doing their homework. The New Orleans Police Department will not be a part of President Trump’s civil deportation force no matter how many times they ask.”

What ‘sanctuary cities’ stand to lose

He reiterated a point made by sanctuary mayors — that individuals are more likely to report crime and testify if they are not afraid of being questioned about their immigration status.

Values ‘not for sale’

Chicago Mayor Rahm Emanuel didn’t pull any punches, either.

Chicago Mayor Rahm Emanuel

“We’ve seen the letter from DOJ. Neither the facts nor the law are on their side,” Emanuel said.

“Regardless, let me be clear: Chicago’s values and Chicago’s future are not for sale.”

Emanuel’s office said Chicago wants to be seen as a “welcoming” city for immigrants.

In Chicago, $3.6 billion in federal funds are at stake, possibly jeopardizing money to pay for everything from feeding low-income pregnant women to repairing roads and bridges, according an analysis by the Better Government Association, a nonpartisan state watchdog group.

NY mayor: Not ‘soft on crime’

The Justice Department claimed illegal immigration into the country has increased crime in these cities. It called New York City “soft on crime.”

New York Mayor Bill de Blasio

That didn’t play in New York.

“I have never met a member of the New York Police Department that is soft on crime,” Mayor Bill de Blasio said.

In a statement and on Twitter, de Blasio challenged President Donald Trump and Attorney General Jeff Sessions to come to the city “and look our officers in the eye and tell them they are soft on crime.”

Spokesman Seth Stein went a step farther.

“This grand-standing shows how out of touch the Trump administration is with reality,” Stein said.

“Contrary to their alternative facts, New York is the safest big city in the country, with crime at record lows in large part because we have policies in place to encourage cooperation between NYPD and immigrant communities.”

http://www.cnn.com/2017/04/21/politics/sanctuary-cities-mayors-respond-to-administration/index.html

******************************************

Session’s tone deaf, xenophobic approach shows little interest in effective law enforcement. Unlike Sessions, over my time at the U.S. Immigration Court in Arlington, I actually had to deal on a face to face basis with both gang members and their victims. Unlike Sessions, I have actually denied bond to and entered orders of removal against established gang members. I’ve also granted relief to victims of gang violence and watched the U.S. legal system intentionally “turn its back” on other victims in dire need of protection.

I have a daughter who as a teacher has had to deal on a day to day basis with some gang issues in the schools and the community in a constructive manner, rather than the harsh platitudes coming out of Sessions’s mouth.

From my perspective, a credible effort to reduce gang violence in the U.S. would require:

1) confidence and close cooperation with the migrant communities across the U.S. (for example, the Northern Virginia Regional Gang Task Force, established with the help of Congress and the efforts of former Rep Frank Wolf has a much more nuanced and potentially effective “multi-faceted” approach to gang violence than the “talk tough, threaten, blame immigrants” approach Sessions is purveying; many of the gang-related cases I got at the Arlington Immigration Court stemmed from the efforts of the Task Force working positively in immigrant communities);

2) a sound voluntary working relationship with local police, community activists, and school officials that concentrates on reducing violent crime and making young people feel included and valued, not focused on “busting” undocumented migrants,

3) recognition that while deportations of gang leaders and members who are not U.S. citizens might be necessary, it will not solve the problem (indeed, since gangs control many of the prisons in Central America and have also have compromised the police and the some government officials, removal to, or even imprisonment in, the Northern Triangle is akin to a “corporate reassignment” for gang members);

4) an acknowledgement that U.S. deportations are what basically started, and then fueled, the “gang crisis” in Central America — MS-13 was actually “Born in the U.S.A.” (with apologies to Bruce — L.A. to be exact) and “exported” (or perhaps more properly “deported”) to El Salvador after the end of the civil war; and

5) a program of at least temporary refuge for those fleeing gang violence in the Northern Triangle, many of whom now are effectively being told by the U.S. that joining gangs or giving in to their demands for extortion or assistance represents their only realistic chance of survival.

A long-term program to address the problems of gangs, drugs, violence against women, endemic public corruption, poor education, substandard health care, and gross economic inequality at the “point of origin” in the Northern Triangle is also needed, along with cooperative programs to encourage other stable countries in the Americas, such as Canada, Mexico, and Costa Rica to share the responsibility of providing at least “safe haven” to those fleeing the Northern Triangle.

Our current national policies, and particularly the ones advocated by Sessions and parroted by Secretary Kelly, actually appear likely to further the power and influence of gangs rather than curbing it. Indeed, as fear and distrust of our Government and the police spreads in migrant communities throughout the U.S., the power, protection, and authority of criminal gangs in the community is almost certainly going to be enhanced.

I think it’s also useful to “keep it in perspective.”Although the power of individual gangs has ebbed and flowed with time, gangs are a well-established historical phenomenon. Indeed, at least one historian has pointed to continuous battles between warring barons and their respective knights as the antecedents of today’s criminal gangs: ruthless, violent, structured on loyalty and fear, greedy, and insatiable. The United States probably does as good a job as any country of dealing with and controlling gang violence. But, it’s unlikely that even we are going to be able to completely eliminate it, any more than we will be able to completely eradicate crime.

PWS

04-22-17

Trump “Channels A.R.” — Tells “Dreamers” To R-E-L-A-X, Nothing Bad Is Going To Happen — But, Should They Believe Him? — Sessions Has A Different Message: Nobody Is Protected!

https://apnews.com/85c427bf25c747ce85d837caccd90648

Julie Pace reports for AP:

“WASHINGTON (AP) — Young immigrants brought to the U.S. as children and now here illegally can “rest easy,” President Donald Trump said Friday, telling the “dreamers” they will not be targets for deportation under his immigration policies.

Trump, in a wide-ranging interview with The Associated Press, said his administration is “not after the dreamers, we are after the criminals.”

The president, who took a hard line on immigration as a candidate, vowed anew to fulfill his promise to construct a wall along the U.S.-Mexico border. But he stopped short of demanding that funding for the project be included in a spending bill Congress must pass by the end of next week in order to keep the government running.

. . . .

As a candidate, Trump strongly criticized President Barack Obama for “illegal executive amnesties,” including actions to spare from deportation young people who were brought to the country as children and now are here illegally. But after the election, Trump started speaking more favorably about these immigrants, popularly dubbed “dreamers.”

On Friday, he said that when it comes to them, “This is a case of heart.”

This week, attorneys for Juan Manuel Montes said the 23-year-old was recently deported to Mexico despite having qualified for deferred deportation. Trump said Montes’ case is “a little different than the dreamer case,” though he did not specify why.

The Deferred Action for Childhood Arrivals program was launched in 2012 as a stopgap to protect some young immigrants from deportation while the administration continued to push for a broader immigration overhaul in Congress.

Obama’s administrative program offered a reprieve from deportation to those immigrants in the country illegally who could prove they arrived before they were 16, had been in the United States for several years and had not committed a crime since being here. It mimicked versions of the so-called DREAM Act, which would have provided legal status for young immigrants but was never passed by Congress.

DACA also provides work permits for the immigrants and is renewable every two years. As of December, about 770,000 young immigrants had been approved for the program.”

*************************************************

Meanwhile, back at the ranch, “Fear Monger in Chief” Jeff Sessions had a somewhat less reassuring message for young people and their families:

As reported by Ted Hesson in Politico:

“Attorney General Jeff Sessions could not promise that so-called Dreamers, or participants in the Deferred Action for Childhood Arrivals program, will not be deported, when he was interviewed Wednesday morning on Fox News.

Sessions fielded questions from host Jenna Lee about an undocumented immigrant who claims he was deported to Mexico despite his enrollment in the program, which was created through administrative action during the Obama administration.

The program allows undocumented immigrants brought to the U.S. at a young age to apply for deportation relief and work permits. In a federal lawsuit filed Tuesday, Juan Manuel Montes, a 23-year-old enrollee in the program, claimed he was sent to Mexico in February despite active DACA status.

“DACA enrollees are not being targeted,” Sessions said on Fox. “I don’t know why this individual was picked up.” But when pressed, Sessions said, “The policy is that if people are here unlawfully, they’re subject to being deported.”

“We can’t promise people who are here unlawfully that they’re not going to be deported,” Sessions added.”

**************************************************

Neither Trump nor Sessions, or for that matter anyone else in the Trump Administration, has much credibility on anything, particularly immigration policy. In reality, however, it appears that very few, if any, “Dreamers” have actually been removed.

The facts of the “Montes case” are still rather murky. He appears to have reentered the U.S. illegally, which generally would subject even a green card holder to removal. Montes reportedly is asserting an earlier “illegal removal” to Mexico. But, even if proved, that wouldn’t necessarily justify an illegal return. We’ll have to see how this case “plays out” in Federal Court, before the same judge who had the “Trump University” case.

But, the situation seems unusual enough that I would not draw any conclusion that it represents a policy change. Indeed, most “Dreamers” of whom I am aware do not actually have “final orders of removal.”

If they had pending U.S. Immigration Court cases, such cases were “administratively closed” and removed from the docket. Removal of such a “former Dreamer” would require the DHS to submit a “motion to re-calendar” to the U.S. Immigration Judge.

Once re-calendared, the case would proceed in the “normal manner,” whatever that might mean in the zany world of today’s U.S. Immigration Court. Generally, however, if the “former Dreamer” were not detained, he or she would go to the “end” of the 542,000 pending cases.

In most Immigration Courts, that would mean an “Individual Hearing” date after 2020, the end of Trump’s first term. And, as I have pointed out before, absent some “smart reforms” of the Immigration Court by Congress or the Administration to restore sanity and an emphasis on due process, the 125 new U.S. Immigration Judges proposed by Sessions will not eliminate the docket backlog at any time in the near future.http://wp.me/p8eeJm-Jf

However, notwithstanding what sometimes is called “Docket TPS,” former Dreamers could face another major obstacle: lack of “employment authorization” which was included in the DACA program. Without such authorization, continuing employment could cause major legal problems for both former Dreamers and their U.S. employers.

One possible solution would be for the “former Dreamer” to file an application for immigration benefits that carries with it the opportunity to qualify for a new employment authorization. The most likely application is probably asylum, although some who have never previously been in Removal Proceedings might also qualify to file for “cancellation of removal” or other forms of regularization of status.

Indeed, many of the dreamers who were on my docket when DACA was granted by USCIS had asylum applications pending, either on their own or as a dependent on a parent’s or spouse’s application, at the time the case was “administratively closed” and removed from my docket. The complexity of individual situations makes the prospect of mass removal of Dreamers even more unlikely.

Stay tuned!

PWS

04-22-17

REUTERS: Mica Rosenberg Reports On Trump’s “Under The Radar” Plan To Bar “Freedom Fighters” & “Victims Of Terrorism” From The U.S.!

http://www.reuters.com/article/us-usa-immigration-terrorism-exceptions-idUSKBN17N13C

Mica and Yegenah Torbati report:

“Now the Trump administration is debating whether to rescind the waivers that have allowed Raj, and tens of thousands of others, to immigrate to the United States in the past decade (See graphic on waivers: tmsnrt.rs/2oPssIo). Some immigration hardliners are concerned the exemptions could allow terrorists to slip into the country.

U.S. President Donald Trump directed the secretaries of State and Homeland Security, in consultation with the attorney general, to consider abolishing the waivers in an executive order in March. That directive was overshadowed by the same order’s temporary ban on all refugees and on travelers from six mostly Muslim nations.

The bans on refugees and travel were challenged in lawsuits, and their implementation has been suspended pending full hearings in court. But the waiver review was not included in the court rulings, so that part of the order remains in effect.

Rules governing the waivers have been hammered out over the last decade with both Democratic and Republican support. But in recent years they have drawn fire from some conservative lawmakers, including Attorney General Jeff Sessions when he was a senator.

A State Department official said this week the department is working with DHS to review the waivers and is “looking at actually pulling them back in accordance with the executive order.”

The official, who spoke on condition of anonymity, declined to give details on the timing of the review or its likely outcome. The Department of Justice declined to comment.

KURDS, KAREN, HMONG

Following the Sept. 11, 2001 attacks, Congress expanded the definition of who could be considered a terrorist and what constituted “material support” to terrorism in rules now known as the Terrorism Related Inadmissibility Grounds.

Those changes ensnared people like Raj who were coerced or inadvertently provided support to terrorists, as well as members of persecuted ethnic groups that supported rebel organizations, and even U.S.-allied groups fighting against authoritarian regimes.

Without an exemption, members of Kurdish groups that battled Saddam Hussein’s forces in Iraq, Hmong groups who fought alongside U.S. troops in Vietnam, or some Cubans who fought Fidel Castro’s regime would not be allowed to immigrate to the United States.

Under the exemptions, U.S. authorities have the discretion to grant people residency in the United States after they have passed background checks and are found to pose no threat to national security.

Congress initially passed waivers to the terrorism bars in 2007 with bipartisan support, and in the years that followed both the Bush and Obama administrations added additional groups and circumstances to the exemptions.

“PHANTOM PROBLEM”

U.S. Citizenship and Immigration Services (USCIS) has granted nearly 22,000 TRIG exemptions in total over the last decade, according to the latest data available, which goes through September 2016. The State Department also grants TRIG exemptions, but a spokesman could not provide data on how many.

Refugees from Myanmar are the largest single group of beneficiaries to date of TRIG exemptions granted by USCIS, with more than 6,700 waivers.

The wave of Myanmar refugees dates to 2006, when U.S. Secretary of State Condoleezza Rice ruled that thousands of members of the Karen ethnic group, then living in a camp in Thailand, could resettle in the United States, even if they had supported the political wing of an armed group that had fought the country’s military regime.

One high-profile supporter of scrapping the waivers is House of Representatives Judiciary Committee Chairman Bob Goodlatte, a Republican from Virginia whose staffers were instrumental in drafting Trump’s travel ban. Goodlatte told Reuters he was “pleased that the Trump Administration is reviewing the dangerous policy.”

Groups favoring stricter immigration laws have also applauded the review. Rosemary Jenks, director of government relations at NumbersUSA, called the waivers “a potential security risk.”

“I personally don’t think that a bureaucrat should be deciding how much support for terrorism is enough to be barred,” she said.

A USCIS spokeswoman, when asked if a recipient of an exemption had ever been involved in a terrorism-related case after arriving in the United States, referred Reuters to the Federal Bureau of Investigation, which said it was a question for the State Department to answer.

“I don’t know of any cases where beneficiaries of exemptions have gotten into trouble after arriving,” the State Department official said, noting that the department does not typically track people after they arrive in the United States.

Trump’s order to review the waivers “is another example of an attempt to address a non-existent phantom problem,” said Eric Schwartz, who served in the State Department during the Obama administration.

Schwartz and immigration advocates say the waivers are granted after lengthy review and are extremely difficult to get.

“These are case-by-case exemptions for people who represent no threat to the United States but rather have been caught in the most unfortunate of circumstances,” said Schwartz.

For Raj, the initial ruling that his ransom payment supported a terrorist group led to more than two years in U.S. immigration detention, followed by more years of electronic monitoring. His waiver allowed him to bring his wife to the United States after nine years apart. She now studies nursing.

(Reporting by Mica Rosenberg in New York and Yeganeh Torbati in Washington; Additional reporting by Julia Edwards in Washington and Kristina Cooke in San Francisco; Editing by Sue Horton and Ross Colvin)”

*************************************

Just to illustrate the lunacy of the already over-broad definition of “terrorist,” all of our “founding fathers” would be “terrorists” under this definition.

I heard a number of so-called”terrorist cases” over my time as a trial judge at the Arlington Immigration Court. A few of the folks on the detained docket (during the years I was assigned to that docket) might have potentially been dangerous.

But, most so-called “terrorists” were basically harmless individuals who actually appeared on my non-detained docket even during the “last years” when I was handling the “non-priority docket” (which was actually the overwhelming majority of cases at Arlington).

Most were folks who had supposedly provided “material support” like giving a ride to a rebel who commandeered the respondent’s car at gun point, carrying supply bags a few miles for guerrillas under threat of death, allowing rebels to ransack the family kitchen at gunpoint (sometimes called the “taco rule”), or giving money to a dissident group that was actually being supported by the U.S. in a battle against an oppressive government” (otherwise referred to as “freedom fighters”).

Most of them had lived in the U.S. for years without incident and were stunned to find out that being a victim of terrorism or helping a dissident group that the U.S. supported could be a bar to immigration. For example, anyone assisting rebels in the fight against the Assad Government or against ISIS would be considered a “terrorist” by our definition. And, ask yourself, why would any “real” terrorist have appeared on my non-detained, non-priority docket?

Of course, as a mere Immigration Judge I could not grant the “waiver” discussed in Mica’s article. But, I was required to make essentially an “advisory holding” that “but for” the “terrorist bar” I would have granted the respondent’s application.

I am aware that some of the cases I handled were referred to USCIS by the Office of Chief Counsel (the respondent can’t initiate the waiver process on her or his own) and eventually granted. Thereafter, I “vacated” on “joint motion” the removal order I had previously entered against the respondent. The whole process seemed convoluted.

Just another example of how the xenophobes in the Trump Administration are wasting time and taxpayer money making an already bad situation even worse.

A further example of how pointless the “terrorist bar” is in it’s current form: many of the individuals covered by the bar would also be entitled to “Deferral of Removal” under the Convention Against Torture (“CAT”). The “terrorist bar” can’t be applied to “CAT deferral.” Therefore, individuals who are denied asylum but qualify for CAT deferral can’t be removed from the country. In effect, all that the terrorist bar does in such cases is keep individuals who are no threat to the U.S. in “limbo,” rather than allowing them to regularize their immigration status.

PWS

04-21-17

LA TIMES: Immigration Courts Not Only “Broken Piece” Of Trump’s Removal Regime — DHS Can’t Keep Up With Removals Even Now! — “Haste Makes Waste” Rush To Hire More Agents Likely To Dilute Standards, Threaten National Security!” — New IG Report Blasts Current Practices!

http://www.latimes.com/politics/la-na-pol-ice-oig-20170420-story.html

Joseph Tanfani reports:

U.S. Immigration and Customs Enforcement, hampered by poor organization and an overworked staff, will have trouble keeping up with the Trump administration’s plans to ramp up deportations of people in the country illegally, government inspectors have concluded.

ICE has “overwhelming caseloads,” its records are “likely inaccurate” and its deportation policies and procedures “are outdated and unclear,” said a report released Thursday by the inspector general of the Homeland Security Department.

“ICE is almost certainly not deporting all the aliens who could be deported and will likely not be able to keep up with the growing number of deportable aliens,” the 19-page report concludes.

The harsh assessment is the latest dash of cold reality for Trump, who was swept into Washington promising vastly tougher enforcement of immigration laws, including more removals, thousands more Border Patrol agents and deportation officers, and construction of a formidable wall on the U.S.-Mexico border.

. . . .

An internal memo in February from Kevin McAleenan, acting director of Customs and Border Protection, revealed that Border Patrol was able to vet and hire only about 40 agents a month last year despite aggressive efforts to streamline the hiring process.

Reports this year that Customs and Border Patrol might stop using polygraph tests, intended to ferret out unqualified agents, drew a storm of criticism. So did the reason: Two out of three new applicants had failed the lie detector.

The agency first required polygraph tests for prospective employees in 2012 after an Obama-era hiring surge led to a sharp increase in agents getting charged or arrested for bribery, drug smuggling and other crimes on or near the border.

Moreover, the Border Patrol — the nation’s largest federal law enforcement agency — has more than 2,000 jobs empty even before a Trump-led hiring surge. The force fell below 20,000 agents this year for the first time since 2009, when Obama came to office.

Homeland Security Secretary John F. Kelly said Sunday that Customs and Border Protection would continue to use the polygraph as a hiring tool, although he added that the agency was considering changes to make the process less “arduous.”

. . . .

Moreover, the latest report from the inspector general’s office at Homeland Security said ICE agents, who are supposed to identify, detain and deport people in the country illegally, are ill-equipped to monitor those on their caseloads.

ICE tries to keep track of about 2.2 million foreigners who are not in jail, including more than 368,000 convicted criminals, the report said. Some officers have more than 10,000 cases, the report said, criticizing agency officials for not managing the problem.

“Although many ICE deportation officers … reported overwhelming caseloads and difficulty fulfilling their responsibilities, ICE does not collect and analyze data” that could be used to ease the pressure.

In one office, according to the report, officers complained that they had to manage so many thousands of cases that they couldn’t keep track of some migrants who had been flagged as risks to national security.

The report faulted ICE for insufficient training and failing to issue “up-to-date, comprehensive and accessible” guidelines on deportation. Resolving the failures, it said, “may require significant time and resources.”

“These management deficiencies and unresolved obstacles make it difficult for ICE to deport aliens expeditiously,” it said.

. . . .

Randy Capps, research director at the Migration Policy Institute, a nonpartisan think tank, said the Trump administration may have promised more than it can deliver given the systemic problems.

“Sooner or later, they are going to have to narrow down [deportation priorities] or the system is going to be overwhelmed,” he said. “That’s certainly what the Obama administration found. There’s a certain size past which the system is very hard to manage efficiently.”

I think Randy Capps has it exactly right. The system is not “infinitely expandable.” That’s also true of the U.S. Immigration Court system. At some point, reasonable priorities will have to be set. With perhaps as many as 12 million undocumented residents in the U.S., we simply can’t have line agents arresting anyone who “might” be removable.

Seems like it’s high time for some bipartisan congressional oversight of what we taxpayers are getting for our dollars over at the DHS. I say this acknowledging that over the years I have been impressed with the individual talent and dedication of the vast majority of DHS (and “Legacy INS”) employees I have come in contact with in my various “lives” in immigration law. But, management, mission focus, technology problems, and communications difficulties have always been agency-wide issues that in some ways make “the whole less than the sum of its parts.” Sure seems that it would be better to get these problems fixed before adding lots of “new parts.”

PWS

04-21-17

THE ATLANTIC: Priscilla Alvarez Exposes Nation’s Largest Failing Court System: U.S. Immigration Court — Quoting Me: “A fully trained judge, which new judges won’t be, can do about 750 cases a year. So 125 new judges could do fewer than 100,000 cases a year once they’re up and trained, . . . .” — No Amount Of Resources Can Overcome Screwed Up Priorities, Political Meddling, & Management Problems Inherent In The Current “Designed To Fail” System — Due Processes Takes A Back Seat!

https://www.theatlantic.com/politics/archive/2017/04/trump-immigration-court-ice/523557/

Priscilla writes in an article that also contains quotes from highly respected DC area immigration practitioner Dree Collopy (emphasis added in below excerpt):

“Responding to the 2014 migrant wave, the Obama administration temporarily redirected immigration judges to the southern border to preside over removal proceedings and bond hearings, and review whether any individuals’ claims of fear of persecution were credible. Immigration cases being heard in other parts of the United States had to be put on hold, said Jeremy McKinney, an attorney and board member of the American Immigration Lawyers Association. “The surge was the first time we saw a deployment of immigration judges to the border, resulting in non-detained dockets in the United States getting much worse,” McKinney said, referring to cases that do not require detention. “That situation already put a strain on the interior immigration courts.”

The Justice Department, which hires judges for immigration courts, was also tied up by the budget sequester from 2011 to 2014, so there weren’t enough judges to try cases, he added. Over time, the backlog grew from around 327,000 cases at the end of the 2012 fiscal year to half a million in 2016.

Judge Paul Schmidt, who was appointed in 2003 by Attorney General John Ashcroft, had around 10,000 immigration cases pending when he left his job last year. “When I retired, I was sending cases to 2022,” he told me. Schmidt, who primarily served in the Arlington Immigration Court in northern Virginia, was assigned to those not considered a priority—say, people who had traffic violations. The current national backlog, Schmidt said, largely consists of cases like the ones he handled.

The Trump administration has taken steps that could quicken the courts’ work. For one, ICE officers can now deport someone immediately, without a hearing, if they fit certain criteria and have lived in the United States for up to two years. Under the last administration, that timeline was up to two weeks, and the individual needed to be within 100 miles of the border.

Attorney General Jeff Sessions also announced, in a speech on the Arizona-Mexico border, that the Department of Justice will add 125 immigration judges to the bench over the next two years: 50 this year and 75 in 2018. He urged federal prosecutors to prioritize the enforcement of immigration laws. “This is a new era. This is the Trump era,” Sessions said. “The lawlessness, the abdication of the duty to enforce our immigration laws, and the catch-and-release practices of old are over.”

“You have to give Sessions credit for this,” Schmidt said. “He took note of the 18-to-24-month cycle for filling judges and said he was going to streamline that.” The math still doesn’t exactly work out, however. “A fully trained judge, which new judges won’t be, can do about 750 cases a year. So 125 new judges could do fewer than 100,000 cases a year once they’re up and trained,” he said. Factor in the fact that it takes up to two years to become “fully productive,” he said, and altogether, it could take five to six years for the 125 new judges to cut down the backlog.

All the while, new cases will continue to come in as the administration enforces its new, broader policies on deportation. Newly detained individuals will be prioritized over other cases, which will be pushed further down the road. “I think it has a particular impact on asylum-seekers, because the sense of being in limbo really seems to prolong their trauma and their sense of statelessness that they have,” said Dree Collopy, an immigration lawyer in Washington, D.C. And hearing delays can affect asylum-seekers’ credibility, as well as evidence to support their cases: “Over time, especially when trauma is involved, memories begin to fade.” If a person can’t testify until years after entering the United States, “that can obviously cause problems.”

When Collopy first started practicing immigration law in 2007, cases generally would take about a year or two to complete. That’s no longer the case: “Now, it’s taking four or five years on average,” she told me. With the Trump administration rounding up undocumented immigrants quicker than courts can process cases, that delay isn’t likely to shorten.”

*****************************************

Read Priscilla’s full article at the above link.

A “smart” strategy would address the 542,000 pending cases before piling on new priorities. Under a more rational policy, those in the current backlog with equities in the U.S., “clean records,” or only minor criminal histories, could be offered “prosecutorial discretion” (“PD”) and taken off the Immigration Court’s docket to make room for higher priority cases.

However, instead of encouraging more use of PD, which was starting to make some difference by the end of the Obama Administration, the Trump Administration has basically made “everything” a potential “priority.” Moreover, as a “double whammy” the Administration has basically “disempowered” those at DHS who know the Immigration Court system the best, the local ICE Assistant Chief Counsel, from freely exercising PD to take non-criminal cases off the docket.

Ironically, at the same time, DHS appears to be giving line enforcement agents the “green light” to arrest just about anyone who might be removable for any reason. However, the line agents unlikely to understand the limitations of the current Immigration Court system and what is already “on the docket.”

The Immigration Court system is basically the opposite of most other law enforcement systems where prosecutors, rather than policemen or agents, determine what cases will be brought before the court. And, in most functioning court systems, the individual sitting judges control their own dockets, rather than having priorities set by politically-driven non-judicial bureaucrats in other places. It certainly appears to be a prescription for disaster. Stay tuned!

PWS

04-21-17

NOTE: In an earlier version of this article I “blew” Priscilla’s name by calling her “Patricia.” My apologies. I’ve now corrected it.

“Send Lawyers, Guns, and Money . . . .” — But, Bipartisan Legalization Is What Undocumented Residents REALLY Need, Says N. Rappaport in THE HILL!

Quote from “Lawyers, Guns and Money,” by Warren Zevon, check it out here: http://www.lyricsmode.com/lyrics/w/warren_zevon/lawyers_guns_and_money.html

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http://thehill.com/blogs/pundits-blog/immigration/329310-noncriminal-immigrants-facing-deportation-need-legalization

Nolan writes in a recent op-ed from The Hill:

“The absence of due process protections is permissible because IIRIA “clarified” that aliens who are in the United States without inspection are deemed to be “arriving.” In other words, they are not entitled to the rights enjoyed by aliens who have been admitted to the United States because, technically, they are not in the United States. This legal fiction has been accepted now for more than 20 years.

Previous administrations arbitrarily have limited expedited removal proceedings to aliens at the border and aliens who entered without inspection and were apprehended no more than 100 miles from the border after spending less than 14 days in the country.

But Section 235(b)(1)(A)(iii)(ll) of the Immigration and Nationality Act (INA) authorizes expedited removal proceedings for any alien “who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.”

President Trump can use expedited removal proceedings to deport millions of noncriminal aliens without hearings before an immigration judge or the right to appeal removal orders to the Board of Immigration Appeals.

The only way to stop him is to find a way to work with him on a comprehensive immigration reform bill that includes a legalization program. And time is running out.

The Trump administration is quickly identifying ways to assemble the nationwide deportation force that President Trump promised on the campaign trail.

Preparations are being made for U.S. Customs and Border Protection (CBP) to hire 5,000 new officers and for U.S. Immigration and Customs Enforcement (ICE) to hire an additional 10,000. Also, ICE has identified 27 potential locations that could increase its detention space by 21,000 beds, and CBP plans to expand its detention capacity by 12,500 spaces.

But it is not too late to work on a deal that would meet the essential political needs of both parties … yet.”

****************************************

Go over to The Hill at the link to read Nolan’s complete op-ed.

I agree with Nolan that given the huge backlogs in the U.S. Immigration Courts, the Administration will use every device at its disposal to avoid the Immigration Courts and completely eliminate due process protections for as many individuals as possible. Moreover, as I have pointed out in a recent blog, to date the Article III Courts have been willing to turn a blind eye to the rather obvious due process and statutory issues involved in expedited removal. See http://wp.me/p8eeJm-IG.

To state the obvious: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum” is meaningless without a fair opportunity to be heard on the asylum application before an impartial adjudicator, with a meaningful opportunity to present evidence, and represented by counsel of one’s choice. And, the idea that individuals who have spent months in detention in the U.S. aren’t entitled to “due process” in connection with their asylum applications (which are “life or death” applications) is facially absurd.

Yeah, I know that the Third Circuit in Castro v. DHS spent the whole decision on a turgidly opaque discussion of jurisdiction and and “suspension of habeas.” Surprising how folks living in the “ivory tower” with lifetime job security can sometimes drain all of the humanity out of “real life” tragedies.

But, frankly, in four decades of being a “highly interested observer” of immigration litigation, I’ve never seen an Article III Court, including the Supremes, be deterred from running over supposed statutory limitations on judicial review when motivated to do so. Perhaps it will take some Federal Judge’s nanny, maid, gardener, driver, handyman, neighbor, fellow church member, student, or in-law being swept up in the new “DHS dragnet” to “motivate” the courts here.

In the meantime, as pointed out to me by Nolan in a different conversation, there is some hope for due process in the Third Circuit’s dictum in Castro. In “footnote 13,” the court actually indicates that there might be a “constitutional break point” for review of expedited removal:

“Of course, even though our construction of § 1252 means that courts in the future will almost certainly lack statutory jurisdiction to review claims that the government has committed even more egregious violations of the expedited removal statute than those alleged by Petitioners, this does not necessarily mean that all aliens wishing to raise such claims will be without a remedy. For instance, consider the case of an alien who has been living continuously for several years in the United States before being ordered removed under § 1225(b)(1). Even though the statute would prevent him from seeking judicial review of a claim, say, that he was never granted a credible fear interview, under our analysis of the Suspension Clause below, the statute could very well be unconstitutional as applied to him (though we by no means undertake to so hold in this opinion). Suffice it to say, at least some of the arguably troubling implications of our reading of § 1252 may be tempered by the Constitution’s requirement that habeas review be available in some circumstances and for some people.”

I suspect that the Administration eventually will push expedited removal and credible fear denials to the point where there will be some meaningful judicial review. But, lots of folks rights are likely to be trampled upon before we reach that point.

Nolan’s suggestion for a bipartisan legislative solution certainly seems reasonable and highly appropriate from the viewpoint of both sides. The Administration is about to invest lots of resources and credibility in a “war to deport or intimidate just about everybody” that it is likely to lose in the long run. But, advocates are likely to be bleeding resources and losing individual battles for some time before the tide eventually turns, if it ever does. Anything that depends on litigation as the solution has many risks and unpredictable outcomes that might leave both sides unsatisfied with the results.

Sadly, nobody in the Administration seems interested in solving this issue. The policy appears to be driven by Attorney General Jeff Sessions, a lifelong opponent of immigration reform who seldom if ever has a kind word to say about any immigrant, legal or undocumented.

Secretary Kelly has become “Sessions’s Parrot,” apparently devoid of any original or constructive thoughts on the subject of immigration. In particular, his recent “put up or shut up” outburst directed at Congressional Democrats who sought some meaningful oversight and clarification of his enforcement policies did not seem to be an entree for better dialogue.

Although there almost certainly is a majority of Democrats and Republicans in favor of reasonable immigration reform, which the majority of the country would also like to see, leadership of both parties seems fairly discombobulated. There seems to be “zero interest” in putting together a legislative coalition consisting of Democrats and a minority of Republicans to get anything done. And, even if such a coalition were to coalesce, President Trump likely would veto any constructive result in the area of immigration.

As I’ve pointed out before, there are a number of reasons why folks don’t always act in their best interests or the best interests of the country. But, I appreciate Nolan’s efforts to promote “thinking beyond conflict.” I want to think that it can come to fruition.

PWS

04-20-17

PRECEDENT: BIA Gives Guidance On Admin Closing & Avetisyan — PD Should Not Be A Factor Unless Parties Agree — Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017)

https://www.justice.gov/eoir/page/file/958526/download

BIA Headnotes:

“(1) The primary consideration for an Immigration Judge in evaluating whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), clarified.

(2) In considering administrative closure, an Immigration Judge cannot review whether an alien falls within the enforcement priorities of the Department of Homeland Security, which has exclusive jurisdiction over matters of prosecutorial discretion.”

Panel: Appellate Immigration Judges Malphrus, Mullane, & Creppy

Opinion by Judge Malphrus.

************************************

While at first blush it might appear that the unrepresented respondent “won” this appeal, the victory is likely to be phyrric at best.

There was a time (now apparently gone) when the DHS gave individual Assistant Chief Counsel broader authority to offer prosecutorial discretion (“PD”) in cases that were not enforcement priorities.

In Arlington, where I was an Immigration Judge, the Assistant Chief Counsel were very reasonable and fair, and usually agreed to “short docket” hearings on well-documented asylum cases that fell squarely within the BIA precedents. Consequently, when they offered “PD” in an asylum case it usually was a “signal” that they saw the equities in the case, but also had difficulties with the asylum application that would require them to fully litigate the case and probably appeal a grant. Since the Assistant Chief Counsel in Arlington did not normally contest asylum cases unless there were significant proof or legal issues involved, their views had great credibility with both the private bar and with me.

Generally, in such situations I “suggested” that counsel accept the proffer of PD and continue to work with the Assistant Chief Counsel on overcoming her or his problem with the asylum case. If the parties eventually were able to reach agreement that the case could be heard on the “short docket” (30 minutes or less), I would be happy to restore the case to the docket upon joint motion. Usually, counsel got my “message.”

The few cases that went forward after “PD” had been turned down by counsel usually proved to be “losers” for the respondent, either before me or before the BIA. In a couple of cases, where I could see the respondent’s case “going south in a hurry,” I simply stopped the hearing and granted the DHS motion for Administrative Closing for PD over the respondent’s objection. I don’t think anyone ever appealed. But, under Matter of W-Y-U-, I probably could not have done that.

I suspect that when this unrepresented respondent eventually gets his wish and has a merits asylum hearing, he will lose. At that point, the DHS, even prior to the Trump Administration, would be unlikely to exercise PD, even if there were outstanding equities.

Sometimes in litigation you get what you ask for, and later wish you hadn’t asked.

PWS

04-19-17

THE PRESIDENCY: Draining The Swamp? — Hardly! — Now “it looks like we’ve got the Creature from the Black Lagoon in the White House.”

https://www.washingtonpost.com/opinions/trumps-no-populist-hes-a-swamp-monster/2017/04/17/7029a4e0-23a2-11e7-b503-9d616bd5a305_story.html

Dana Milbank writes in an op-ed in today’s WashPost:

“Last year, Mark Meckler, one of the founders of the tea party movement, had concerns about Donald Trump but gave the Republican nominee the benefit of the doubt, because Trump “at least says he’s going to attack” the crony-capitalist system.

Now the conservative activist has revised his opinion. Trump “said he was going to D.C. to drain the swamp,” Meckler said in a recent Fox Business interview, but “now it looks like we’ve got the Creature from the Black Lagoon in the White House.”

For everybody else who believed Trump’s populist talk about tackling a rigged system, it’s time to recognize you’ve been had. The president of the United States is a swamp monster.

The billionaire has embraced a level of corporate control of the government that makes previous controversies involving corporate influence — Vice President Dick Cheney’s attempt in 2001 to keep secret the names of industry officials who participated in his energy task force, for example — seem quaint by comparison.

. . . .

Steven Aftergood, who runs the Federation of American Scientists’ Project on Government Secrecy, said Trump’s actions are testing “the character of the U.S. government” and raise the possibility of the government “devolving into some kind of corporate mutation where the wealthy and well-connected rule.”

Trump has made a series of policy reversals in recent days from his populist campaign positions — on Chinese currency, trade, the Export-Import Bank and more — as the nationalist influence of Steve Bannon fades. This isn’t solely because Trump has stocked his administration at the highest levels with fellow billionaires, corporate types such as son-in-law Jared Kushner and veterans of Goldman Sachs.

ProPublica and the New York Times reported over the weekend that the Trump administration is being populated with former lobbyists, lawyers and consultants who are making policy for the industries that had been paying them. The arrangement has violated Trump’s (already weakened) ethics rules, and the administration is secretly issuing waivers exempting the former lobbyists from rules blocking them from working on issues that would benefit their former clients. Trump White House officials had more than 300 recent corporate clients and employers, the Times reported, and more than 40 former lobbyists are now in the White House and federal government. The director of the U.S. Office of Government Ethics says even he has “no idea how many waivers have been issued.”

And these corporations are set to get what they paid for.

My Post colleague Juliet Eilperin reported Sunday on some of the 168 requests corporate interests have made, and are likely to be given, for regulatory relief, many of them seeking reduced environmental protections and worker rights. BP wants to make it easier to drill in the Gulf of Mexico. The pavement industry wants a halt to research on the environmental impact of coal tar. And my favorite: The U.S. Chamber of Commerce’s request that employers no longer be required to report their injury and illness records electronically to the Labor Department.

This should give the lie to Trump’s claims that deregulation is about creating jobs. The Chamber is upset that the government “intends to post the injury and illness records on the internet for anyone to see,” because this “will provide unions and trial attorneys with information that can be taken out of context.” As The Post’s James Hohmann noted, Trump already signed legislation removing a rule requiring businesses seeking large federal contracts to disclose serious safety and labor-law violations.

Trump has a simple answer to those who question his attempts to conceal the corporate influence in his administration. As he tweeted Sunday in response to protests about his failure to release his tax returns: “The election is over!”

Can Trump marginalize those who question his plutocracy? Eric Liu, an expert on mobilization and author of the new book “You’re More Powerful Than You Think,” sees Trump’s abandonment of the little guy as an opening for a “nascent progressive populism.”

But be careful: You don’t have to have seen “Creature from the Black Lagoon” to know that, in the swamp-monster genre, the beast seldom goes quietly.”

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When the most “popular” things our President has done since taking office are to shoot missiles, drop a big bomb, and threaten a “rogue nation” with an unstable leader and lots of weapons, without the semblance of an achievable “end game,” you know our country is in big trouble. Big time!

PWS

04-18-17

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