WORLDVIEWS IN THE WASHPOST: No Matter How The Legal Case Comes Out, Trump’s Travel Ban Will Stand As An Ugly Blot On America’s Reputation!

https://www.washingtonpost.com/news/worldviews/wp/2017/06/27/trumps-travel-ban-still-doesnt-make-any-sense/?hpid=hp_rhp-more-top-stories_no-name%3Ahomepage%2Fstory&utm_term=.105cc6430610

Ishaan Tharoor writes:

“But whatever the case, it’s important to remember that the travel ban on its face makes very little sense. The two federal appeals courts that ruled against it said separately that Trump’s order was both discriminatory toward Muslims and not necessary for national security, despite the White House’s continued insistence.

“There is no finding that present vetting standards are inadequate, and no finding that absent the improved vetting procedures there likely will be harm to our national interests,” the judges of the 9th Circuit wrote. “These identified reasons do not support the conclusion that the entry of nationals from the six designated countries would be harmful to our national interests.”

Not a single person has died in a terrorist attack on American soil carried out by a citizen from one of the six nations covered by the ban. Since the Refugee Act of 1980 set up a system for vetting refugees to the United States, no person accepted as a refugee has been implicated in a fatal terrorist attack. Critics of the order have also nitpicked in the past about the absence of other “terror-prone” nations in the ban’s purview, such as Pakistan, Afghanistan or even Saudi Arabia, whence 15 of the 9/11 attackers came. And, while Trump voices fear over foreign threats, he has been conspicuously quiet about the scourge of domestic terrorism within the United States.

Mourners at a memorial for the victims of the 2016 Pulse nightclub shooting in Orlando. (Amanda Voisard)
The broader point the ban’s opponents make is that singling out immigrants, tourists and refugees based on their country of origin will do little to keep the United States safe, while badly damaging the nation’s reputation abroad.

 

“Far from being foreign infiltrators, the large majority of jihadist terrorists in the United States have been American citizens or legal residents. Moreover, while a range of citizenship statuses are represented, every jihadist who conducted a lethal attack inside the United States since 9/11 was a citizen or legal resident,” concluded a recent report by the New America Foundation. “In addition about a quarter of the extremists are converts, further confirming that the challenge cannot be reduced to one of immigration.”

. . . .

The underlying impetus has always been Trump’s desire to make real a campaign promise for some kind of Muslim ban — “a total and complete shutdown of Muslims entering the United States,” as he put it in 2015. Taking into account the statements of both Trump and his allies before and after last year’s election, the 4th Circuit court had ruled that the executive order “in context drips with religious intolerance, animus and discrimination.”

The Supreme Court’s decision on Monday doesn’t strip away the moral validity of the arguments posed by the ban’s critics. And the court’s justices wrote “the relief we grant today” should enable the White House “to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of [the order].” If the Trump administration seeks to extend the ban well beyond the summer, it will be all the more clear that its motives aren’t quite as benign as it claims.”

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Read the complete article at the above link.  “We should all be afraid all the time even of things that we have no objective reason to fear.” That’s essentially Trump’s dark, downbeat message on immigration and pretty much everything else. What would FDR think?

PWS

06-28-17

U.S. District Judge Stops DHS From Deporting Iraqis Arrested In Recent Bust!

Continue reading U.S. District Judge Stops DHS From Deporting Iraqis Arrested In Recent Bust!

Sessions Says DOJ Will Help Defend States (Like Texas) Seeking To Punish “Sanctuary Cities” — House GOP Pushes Bill Targeting Sanctuary Jurisdictions!

https://www.washingtonpost.com/local/trump-administration-backs-texas-in-lawsuit-over-harsh-sanctuary-city-law/2017/06/23/327ba290-581f-11e7-ba90-f5875b7d1876_story.html?utm_term=.4c47afa58d76

Maria Sacchetti reports in the Washington Post:

“Attorney General Jeff Sessions said Friday that the Trump administration “fully supports” Texas’s harsh new ban on sanctuary cities, and the Department of Justice will help defend it against a federal court challenge next week.

Lawyers for the tiny border city of El Cenizo, the League of United Latin American Citizens and major cities such as Dallas and Austin say the law requiring them to detain immigrants for federal deportation agents is “patently unconstitutional” for a number of reasons. On Monday, they will urge U.S. District Court Judge Orlando Garcia in San Antonio to block the law from taking effect Sept. 1.

The state of Texas argues that the government is within its rights to bar localities from interfering with immigration enforcement. Under the law, officials could lose their jobs, police chiefs could go to jail, and governments could face fines of up to $25,500 a day if they adopt or enforce policies that prevent law enforcement officers from asking about a person’s immigration status or complying with requests to detain immigrants, a job that has been chiefly the responsibility of federal agents.

 

“President Trump has made a commitment to keep America safe and to ensure cooperation with federal immigration laws,” Sessions said in a statement. “Texas has admirably followed his lead by mandating state-wide cooperation with federal immigration laws that require the removal of illegal aliens who have committed crimes.”

Luis Roberto Vera, Jr. the national general counsel for the League of United Latin American Citizens, which is a plaintiff in the case, said the Texas law is discriminatory because it primarily targets Hispanics, one of the state’s largest groups.

El Cenizo Mayor Raul Reyes. El Cenizo is the lead plaintiff in a lawsuit that will seek to temporarily halt Texas’ sanctuary cities ban before it takes effect Sept. 1. (Matthew Busch/Matthew Busch For The Washington Post)
“It’s a continuation of Donald Trump’s war on Mexicanos,” Vera said. “That’s the sad part about this.”

The faceoff comes amid rising tensions nationwide over the Trump administration’s crackdown on immigration and its relentless march forward despite a string of losses in federal courts.

On Friday, congressional aides said House Republicans are advancing a bill that would withhold some federal grant money from so-called sanctuary cities; give greater legal weight to immigration detainers, which are requests from Immigration and Customs Enforcement to local jails to hold immigrants who are being targeted for deportation; and shield local governments from lawsuits related to detainers. A second bill would increase penalties against deported immigrants who return illegally.”

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Yup, full employment for lawyers, on all sides.

Bad time to be an immigrant, refugee, or minority in America. Great time to be a lawyer!

PWS

06-24-17

U.S. District Judge In Detroit Temporarily Halts DHS Effort To Expel Chaldean Christians To Iraq!

https://apnews.com/65537e11f1a941c7954faaebdd35f75d/Detroit-judge-halts-deportation-of-Iraqi-Christians

AP reports:

“DETROIT (AP) — A judge on Thursday temporarily halted the deportation of more than 100 Iraqi Christians living in the Detroit area who fear torture and possible death if sent back to Iraq.

U.S. District Judge Mark Goldsmith said in a written order that deportation is halted for 14 days while he decides if his court has jurisdiction to hear their plight.

The Justice Department had argued that the detainees, including many who were recently rounded up after decades in the U.S., must go to immigration court to try to remain in the U.S., not U.S. District Court. But the American Civil Liberties Union said they might be deported before an immigration judge can consider their requests to stay.

Goldsmith heard arguments Wednesday. He said he needs more time to consider complex legal issues.

Potential physical harm “far outweighs any conceivable interest the government might have in the immediate enforcement of the removal orders before this court can clarify whether it has jurisdiction to grant relief to petitioners on the merits of their claims,” Goldsmith said.

Most of the 114 Iraqis are Chaldean Christians, but some are Shiite Muslims and converts to Christianity. They were arrested on or about June 11 and the U.S. Immigration and Customs Enforcement said all have criminal convictions.

Iraq recently agreed to accept Iraqi nationals subject to removal from the U.S.

“The court took a life-saving action by blocking our clients from being immediately sent back to Iraq,” Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, said in a release. “They should have a chance to show that their lives are in jeopardy if forced to return.”

Besides the 114 arrested in the Detroit area, 85 other Iraqi nationals were arrested elsewhere in the country, according to ICE. As of April 17, there were 1,444 Iraqi nationals with final orders of removal from the U.S. Eight already have been returned to Iraq.

The detainees include Louis Akrawi, who served more than 20 years in Michigan prisons for second-degree murder. He was accused of arranging a shooting that killed an innocent bystander in 1993.

“He’s 69 years old, he has two artificial knees, and he needs surgery on both eyes. Sending him back to Iraq is unfair,” his son, Victor Akrawi, told The Detroit News.”

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Perhaps, Evangelical Christians who supported Trump thought they would get a break. But, in this particular operation, being a Christian doesn’t seem to have helped. Muslims are also being removed.

PWS

06-23-17

NYT: Meet The White Nativist, Anti-Democracy Politician Kris Kobach — If You’re Non-White, He’s Out To Restrict Or Eliminate Your Right To Shape America’s Future — “implementing policies that protect the interests and aims of a shrinking white majority.”

https://www.nytimes.com/2017/06/13/magazine/the-man-behind-trumps-voter-fraud-obsession.html?action=click&contentCollection=Opinion&module=Trending&version=Full®ion=Marginalia&pgtype=article

Read Ari Berman’s shocking profile of a minor politician who wields outsized influence within the GOP and is out to put a “White’s Only” sign on the American Dream. For Kobach, the “Jim Crow Era” was the glory day of the “rule of law” in the U.S. When Kobach talks about the “rule of law” it’s code for using the legal system to cement the rule of a disproportionately white GOP minority over the rest of us, and particularly Americans of color. Will the “sleeping majority” wake up before we’re all disenfranchised by this racist in a suit hiding behind his Yale law degree and ability to spin legal gobbledygook? Kobach isn’t just “the ACLU’s worst nightmare,” as he smugly touts himself. He’s American Democracy’s worst nightmare!

Here’s a sample of what Kobach has in store for the rest of us:

“Kobach’s plans represent a radical reordering of American priorities. They would help preserve Republican majorities. But they could also reduce the size and influence of the country’s nonwhite population. For years, Republicans have used racially coded appeals to white voters as a means to win elections. Kobach has inverted the priorities, using elections, and advocating voting restrictions that make it easier for Republicans to win them, as the vehicle for implementing policies that protect the interests and aims of a shrinking white majority. This has made him one of the leading intellectual architects of a new nativist movement that is rapidly gaining influence not just in the United States but across the globe.”

Read Berman’s lengthy article, and think about what YOU can do to put the kibosh on the plans of this self-proclaimed “fanatic” and his dream of turning America into a “White GOP Folks Only Club.” Even Republicans who might remember enough to know that the GOP in the far, far distant past was the “Party of Lincoln” might want to rethink their party’s support of and association with this dangerous extremist. Act before it’s too late and Kobach steals YOUR American Dream and turns it into a nightmare!

PWS

06-13-17

 

 

 

 

HuffPost: Trump Calls On Supremes For Help On Travel Ban 2.0!

http://www.huffingtonpost.com/entry/trump-travel-ban-supreme-court_us_5930da0ae4b0c242ca229563

Nick Visser reports:

“The Trump administration on Thursday asked the U.S. Supreme Court to revive the president’s controversial executive order that intended to temporarily bar travel to the U.S. by citizens of six Muslim-majority countries.

Lawyers at the Department of Justice filed two emergency applications with the nation’s highest court asking it to block two lower court rulings that effectively halted the implementation of his second travel ban, which also halted refugees seeking to enter the U.S. The filing asks for a stay of a ruling made last week by the U.S. Court of Appeals for the 4th Circuit and another stay of an injunction made by a judge in Hawaii.

The Justice Department has asked for expedited processing of the petitions so the court can hear the case when it begins a new session in October.

“We have asked the Supreme Court to hear this important case and are confident that President Trump’s executive order is well within his lawful authority to keep the Nation safe and protect our communities from terrorism,” Justice Department spokeswoman Sarah Isgur Flores said in a statement. “The president is not required to admit people from countries that sponsor or shelter terrorism, until he determines that they can be properly vetted and do not pose a security risk to the United States.”

The filing drew an almost immediate response from advocacy groups, including the American Civil Liberties Union, which pledged to fight the ban in court yet again.
Trump’s executive order, signed March 6, was the White House’s second travel ban attempt. It sought to bar citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the United States. The watered-down order came after the bungled rollout of a similar ban, one that included Iraqis, which prompted nationwide protests and its own smack-down by a federal judge in Seattle.

In a 10-3 ruling last week, the 4th Circuit issued perhaps the biggest setback to the White House when a full panel of its judges refused to lift a nationwide injunction that halted key aspects of the revised ban.

U.S. Chief Circuit Judge Roger Gregory wrote at the time that the order “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”

“Congress granted the President broad power to deny entry to aliens, but that power is not absolute,” Gregory continued. “It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”

Any travel ban’s chances have been harmed by Trump’s own rhetoric on the campaign trail, when he promised to completely ban Muslims from entering the country. He later backed down on those statements, but several judges cited them as evidence that the White House was targeting members of a religious group, not from any specific countries.

In one ruling, U.S. District Judge Derrick Watson said the president’s “plainly worded statements” betrayed the ban’s “stated secular purpose.” U.S. District Judge Theodore Chuang said Trump’s statements provided “a convincing case that the purpose of the second Executive Order remains the realization of the long-envisioned Muslim ban.”

Throughout the continued defeat in the courts, Trump and his administration have defiantly pledged to fight for the order and have denied the ban is intended to target members of the Islamic faith. After Watson ruled on the second order in Hawaii, the president called the decision “flawed” and slammed it as “unprecedented judicial overreach.”

“This ruling makes us look weak, which by the way we no longer are,” Trump said.

At the time, he pledged to bring the fight to the Supreme Court, a call Attorney General Jeff Sessions reiterated last month.”

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Most experts believe that the Administration has a reasonable chance of prevailing if the Court takes the case. But, I’m not sure that heaping intemperate insults on U.S. trial and appellate judges, and then asking the top U.S. judges to invoke emergency procedures to bail you out of difficulties caused to a large extent by your own inflammatory rhetoric is necessarily a winning litigation strategy. We’ll soon see how this plays out. Because the Court’s term concludes at the end of this month, expect a decision on the Government’s emergency requests by then. Even if the Court agrees to take the case, it’s unlikely that arguments on the merits will be heard until the beginning of the 2017 Term next Fall.

Thanks to Nolan Rappaport for sending me this link.

PWS

06-02-17

State & Local Prosecutors “Just Say No” To Gonzo-Apocalypto’s Retrograde Agenda!

https://www.washingtonpost.com/news/post-nation/wp/2017/05/19/prosecutors-are-pushing-back-against-sessions-order-to-pursue-most-severe-penalties/?hpid=hp_hp-more-top-stories_sessions-penalties-920pm%3Ahomepage%2Fstory&utm_term=.47be355726b2

Lindsey Bever reports in the Washington Post:

“A week after U.S. Attorney General Jeff Sessions told federal prosecutors to “charge and pursue the most serious, readily provable offense” and follow mandatory minimum sentencing guidelines, a bipartisan group of prosecutors at the state and local level is expressing concern.

Thirty current and former state and local prosecutors have signed an open letter, which was released Friday by the nonprofit Fair and Just Prosecution, a national network working with newly elected prosecutors. The prosecutors say that even though they do not have to answer Sessions’s call, the U.S. Attorney General’s directive “marks an unnecessary and unfortunate return to past ‘tough on crime’ practices” that will do more harm than good in their communities.

“What you’re seeing in this letter is a different wind of change that’s blowing through the criminal justice field,” said Miriam Krinsky, a former federal prosecutor and executive director of Fair and Just Prosecution.

“There does seem at the federal level to be a return to the tough-on-crime, seek-the-maximum-sentence, charge-and-pursue-whatever-you-can-prove approach,” Krinsky said. But, she added, at a local level, some believe “there are costs that flow from prosecuting and sentencing and incarcerating anyone and everyone who crosses the line of the law, and we need to be more selective and smarter in how we promote both the safety and the health of our communities.”

Signers of the letter include Los Angeles City Attorney Mike Feuer, Manhattan District Attorney Cyrus R. Vance Jr., and Karl Racine, attorney general of the District of Columbia.

The prosecutors say that there are no real benefits to Sessions’s May 10 directive, but they noted “significant costs.”

The letter states:

The increased use of mandatory minimum sentences will necessarily expand the federal prison population and inflate federal spending on incarceration. There is a human cost as well. Instead of providing people who commit low-level drug offenses or who are struggling with mental illness with treatment, support and rehabilitation programs, the policy will subject them to decades of incarceration. In essence, the Attorney General has reinvigorated the failed “war on drugs,” which is why groups ranging from the American Civil Liberties Union to the Cato Institute to Right on Crime have all criticized the newly announced policy.”

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Read the complete article at the above link.

As mentioned in an earlier posting, a bipartisan group of Senators, led by Sen. Rand Paul (R-KY) is also pushing back against Sessions’s prosecution policies.

 

PWS

05-19-17

Two New Pieces From N. Rappaport: Perhaps “Lost In The Shuffle” — Trump’s Plans For An Expanded Travel Ban & “Super Expedited” Removals!

Nolan is one of the “hardest working op-ed writers”in the field! Here’s the intro to what he had to say in HuffPost about an expanded “travel ban.”

https://www.linkedin.com/redir/redirect?url=http%3A%2F%2Fwww%2Ehuffingtonpost%2Ecom%2Fentry%2F5894ed61e4b061551b3dfe64&urlhash=nmYz&_t=tracking_anet

“Too much attention is being paid to a 90-day travel ban in President Donald Trump’s Executive Order Protecting the Nation From Foreign Terrorist Entry into the United States (Order). While it is a serious matter, the temporary suspension of admitting aliens from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen into the United States is just the tip of the iceberg. Other provisions in the Order may cause much more serious consequences.

Section 3(a) of the Order directs the Secretary of the Department of Homeland Security (DHS), in consultation with the Secretary of the Department of State (DOS) and the Director of National Intelligence, to determine what information is needed “from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” This applies to all countries, not just the seven that are subject to the 90-day suspension.

Those officials have 30 days from the date of the Order to report their “determination of the information needed for adjudications and a list of countries that do not provide adequate information (emphasis supplied).”

Section 3(d) directs the Secretary of State to “request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.” Section 3(e) explains the consequences of failing to comply with this request. Note that this also applies to all countries, not just the seven that are subject to the 90-day delay.

(e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, …) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs (emphasis supplied).

This is far more serious than the 90-day ban on immigration from the seven designated countries. With some exceptions, President Trump is going to stop immigration from every country in the world that refuses to provide the requested information. And this ban will continue until compliance occurs.

Does the President have the authority to do this? Yes, he does. The main source of the president’s authority to declare such suspensions can been found in section 212(f) of the Immigration and Nationality Act, the pertinent part of which reads as follows:

(f) Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

The Order permits the Secretaries of DOS and DHS to waive the restrictions on a case-by-case basis when it is in the national interest.

DHS Secretary John Kelly has applied this waiver to the entry of lawful permanent residents. In a statement released on January 29, 2017, he says, “absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”

The ACLU Executive Director, Anthony D. Romero, claims that the Order is “a Muslim ban wrapped in a paper-thin national security rationale.”

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I understand Nolan’s point that President Trump could be within his rights to invoke the travel ban.  Nevertheless, in a recent blog on this site, former State Department visa officer Jeff Gorsky pointed out that historically the section 212(f) sanction of suspension of visa issuance has been used in a very narrow and focused manner. http://wp.me/p8eeJm-Hr

The prospect of large-scale visa suspensions in the current context also seems like unusual policy to me. Let’s take the most obvious example: Iran, a country with which we have famously strained relations.

Why would Iran want to provide us with any useful information about its nationals? And, if they did, why would we trust it?

For example, if there is a real “Iranian spy” out there I’m sure the Iranian Government will give him or her a “clean bill of health.” On the flip side, if there are some Iranian democracy advocates who are annoying to the Iranian Government but want to travel to the U.S., Iran would likely plant false information to make us believe they were “terrorists.

Hopefully, in Iranian visa cases we are getting our “vetting” information largely from sources other than the Iranian Government. Consequently, like so many of the Trump Administration’s actions, it is hard to take a threat to ban visa issuance as a serious effort to protect national security. It’s likely that national security is just a “smokescreen” for other possible motives. Who knows?

I’m incurred to think that if Trump decides to “go big” with 212(f) visa suspensions, at least some lower Federal Courts are likely to adopt the “Gorsky view” that “he can’t do that.”

You should read Nolan’s complete article in HuffPost at the above link!

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Next, Nolan writes about the Administration’s “expedited removal campaign” in The Hill:

http://thehill.com/blogs/pundits-blog/immigration/332110-on-illegal-immigration-trump-puts-an-end-to-obamas-home-free

As of the end of January 2017, the immigrant court’s backlog was 542,411 cases.  Even if no additional cases are filed, it would take the court two-and-a-half years to catch up with its backlog.

President Trump finessed his way around this problem by expanding the use of expedited removal proceedings with his Executive Order, Border Security and Immigration Enforcement Improvements.

In expedited removal proceedings, which are conducted by immigration officers, an alien who lacks proper documentation or has committed fraud or a willful misrepresentation to enter the country, will be deported without a hearing before an immigration judge, unless he requests an asylum hearing.

 

Asylum hearings, which are conducted by immigration judges, are available to aliens who establish a credible fear of persecution.  An asylum officer determines whether the alien has a credible fear of persecution.

The alien cannot have assistance from an attorney in these proceedings, and, because detention is mandatory, his ability to gather evidence in support of his case is severely restricted.

Moreover, Section 208(a)(2)(B) of the Immigration and Nationality Act (INA) limits asylum to aliens who have been in the United States for less than a year (with some exceptions).

If the asylum officer rejects the credible fear claim, the alien can request an expedited review of his credible fear case by an immigration judge, which usually is held within 24 hours but in no case later than seven days after the adverse credible fear determination.

Federal court review is available, but it is restricted to cases in which the alien makes a sufficient claim to being a United States citizen, to having lawful permanent resident status, or to having been admitted previously as a refugee or an asylee.

A federal judge recently held that asylum denials in expedited removal proceedings are not reviewable in federal court and the Supreme Court let the decision stand.

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

The Executive Order expands expedited removal proceedings to the full extent of the law. Section 235(b)(1)(A)(iii)(ll) of the INA authorizes expedited removal proceedings for aliens who have been physically present in the United States for up to two years.

It is likely to be very difficult for aliens to establish physical presence of more than two years, and if they do, they will be faced with the one year deadline for asylum applications, which in many cases is the only form of relief available to an undocumented alien.

President Trump will be able to use expedited removal proceedings to deport millions of undocumented aliens without hearings before an immigration judge.

The only way to stop him is to find a way to work with him on a comprehensive immigration reform bill that meets the political needs of both parties, and time is running out.”

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I’m all for comprehensive immigration reform. But, if it doesn’t happen, I’m not so sure that Trump, Sessions & Co. won’t “push the envelope” on expedited removal to the point where  the Supremes “just say no.” After all, even noted conservative chief Justice John Roberts seemed unenthusiastic about giving the DHS total prosecutorial discretion in a recent citizenship case. See this earlier blog: http://wp.me/p8eeJm-Lv.

PWS

05-076-17

INCARCERATION NATION: Private Prison Corps Win, Everyone Else Loses!

http://www.huffingtonpost.com/entry/trump-100-days-private-prisons_us_590203d8e4b0026db1def8fb

Dana Liebelson reports for HuffPost:

“WASHINGTON ― When Donald Trump was running for president, the private prison industry in the United States was down for the count. An undercover reporter exposed abuse at a private prison in Louisiana. A report from the Department of Justice’s Office of the Inspector General found private prisons had higher rates of assault than regular prisons.

The Obama administration announced in August that it was phasing out the use of private prisons to house federal inmates; private prison stock subsequently plunged. And Trump’s foe, Democratic candidate Hillary Clinton — who had received donations from private prison lobbyists — said she was “glad” to see the end of private prisons. “You shouldn’t have a profit motivation to fill prison cells with young Americans,” she added.

Then Trump won.

In his first 100 days, Trump has failed to fulfill the populist promises of his campaign, while industries like Wall Street have made big gains. But the private prison industry in the U.S. — which is heavily dependent on federal contracts from the Federal Bureau of Prisons, U.S. Immigration and Customs Enforcement and the U.S. Marshals Service — has had one of the biggest turnarounds of all, winning Justice Department approval, new and extended contracts, and an administration that is expected to bolster the demand for a lot of detention beds.

The Obama administration’s 2016 directive to reduce and ultimately end the use of privately operated prisons on the federal level “put these companies on the defensive in a way that we had not seen for at least 15 years,” Carl Takei, a staff attorney at the American Civil Liberties Union’s national prison project, told HuffPost. “But now, we face a total reversal of that situation.”

In February, Attorney General Jeff Sessions withdrew the Obama-era directive, claiming that it “impaired the [Bureau of Prisons’] ability to meet the future needs of the federal correctional system.” One day after that announcement, CNN reported that the stocks of CoreCivic (previously called Corrections Corporation of America) and GEO Group, the two largest private prison operators, were up 140 percent and 98 percent, respectively, since Trump’s election.

“The attorney general’s announcement in February validated our position that the DOJ’s previous direction was not reflective of the high-quality services we have provided,” said Jonathan Burns, a spokesman for CoreCivic.

But the wins for private prison operators go further than the Trump administration’s reversal of the Obama administration’s memo, which technically only applied to a sliver of federal prisons, not state lockups or immigration detention facilities.

The Trump administration is also expected to implement tough-on-crime policies and large-scale deportations. Just this month, Sessions announced plans to weigh criminal charges for any person caught in the U.S. who has been previously deported, regardless of where they’re arrested.

CoreCivic does not draft legislation or lobby for proposals that might determine the basis or duration of a person’s incarceration, the company spokesman told HuffPost.

But private prison operators acknowledge that “new policies, priorities under the new administration [have helped create] an increased need for detention bed space,” as J. David Donahue, GEO Group senior vice president, told investors in February.

Donahue said his company was having ongoing discussions with ICE about its capabilities, which included “3,000 idle beds and 2,000 underutilized beds.” In April, GEO Group announced it had been awarded an ICE contract to build a new 1,000-bed detention center in Texas.

CoreCivic also announced a contract extension in April at a 1,000-bed detention facility in Texas. The company cited “ICE’s expected detention capacity needs” and “the ideal location of our facility on the southern border” as reasons ICE might extend its contract even further.

The Department of Homeland Security has identified 33,000 more detention beds available to house undocumented immigrants as it ramps up immigration enforcement, according to an internal memo obtained by The Washington Post and dated April 25.

“We can expect that the private prison industry will get rich off of any push by the Trump to expand the number of people in federal custody,” the ACLU’s Takei said.

If you’re determined to lock everybody up as long as possible, whether they’re dangerous or not, you need a place to put them and lots of money to pay for it.Molly Gill, director of federal legislative affairs at FAMM

In February, Trump re-emphasized his support for Kate’s Law, backed by Sen. Ted Cruz (R-Texas), which would establish a five-year mandatory minimum prison sentence for undocumented immigrants who re-enter the United States after being convicted twice for illegal re-entry. The ACLU has estimated that even the most limited version of Kate’s Law would require nine new federal prisons.

Sessions has also tapped Steven Cook, who previously headed a group that opposed the Obama administration efforts to implement sentencing reforms, for a key role in a task force that will re-evaluate how the federal government deals with crime. This suggests that the Trump administration is planning to fulfill its promises to prosecute more drug and gun cases federally.

“If you’re determined to lock everybody up as long as possible, whether they’re dangerous or not, you need a place to put them and lots of money to pay for it,” said Molly Gill, director of federal legislative affairs at FAMM, a group that opposes mandatory minimums.

Although the federal prison population has declined in recent years, federal prisons are still over capacity. Congress “does not seem to have much of a taste for building new prisons,” Gill noted, so “private prison contractors could make up the difference.”

Private prison critics claim that the industry has an incentive to spend less money on inmate services, as well as sufficient staffing, which can have disastrous human rights consequences including reliance on solitary confinement, poor mental health care, and violence. Private prisons are also not subject to the Freedom of Information Act, which means any misconduct is often shrouded in secrecy. (The CoreCivic spokesman said “the comments raised by critic groups are misinformed and neglect the history of our company.”)

A spokesman for GEO Group told HuffPost that the company believes the Obama administration decision to phase out private prisons last August “was based on a misrepresentation” of an Inspector General report that he said demonstrated that privately run facilities “are at least as equally safe, secure, and humane as publicly run facilities and in fact experienced lower rates of inmate deaths.”

In fact, investigators found that in “most key areas, contract prisons incurred more safety and security incidents per capita than comparable [Bureau of Prisons] institutions.” (At the time, GEO Group said higher incidents numbers could be chalked up to better reporting.)

Civil rights advocates, nonetheless, have deep concerns. “Handing control of prisons to for-profit companies is a recipe for abuse and neglect,” Takei argued. “We expect that even greater reliance on private prisons will lead to similar problems, but on a larger scale,” he added.”

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For more on the Administration’s plans for a “New American Gulag,” see my recent post: http://wp.me/p8eeJm-KN.

And, while individuals subject to so-called “civil” detention clearly are the biggest losers, along with our self-respect as a nation with humane values, don’t forget the U.S. taxpayers who, along with shelling out billions for unnecessary incarceration, will also likely be on the tab for some big legal fees and damage awards once folks start suffering actual harm from the Administration’s abandonment of appropriate standards and safeguards on conditions of detention.

PWS

04-28-17

DEPORTATION EXPRESS: U.S. Courts Appear Ready To “Green Light” Summary Removal Of Asylum Seekers Without Regard To Due Process — Advocates Striking Out In Attempts To Get Meaningful Judicial Review Of Expedited Removal — Trump Administration’s Plans To Expand Expedited Removal Likely To Deny Thousands Day In Court!

http://www.cnn.com/2017/04/17/politics/supreme-court-castro-expedited-removal/index.html

By Ariane de Vogue, CNN Supreme Court Reporter  writes:

“(CNN)The Supreme Court on Monday left in place a lower court opinion rejecting claims by undocumented Central American women and children — who were apprehended immediately after arriving in the country without authorization — seeking asylum.

Lawyers for the families sought to challenge their expedited removal proceedings in federal court arguing they face gender-based violence at home, but a Philadelphia-based federal appeals court held that they have no right to judicial review of such claims.
The court’s action means the government can continue to deny asylum seekers placed in expedited removal a chance to have their cases heard by federal court.
Justice Neil Gorsuch, who has his first full week on the court starting Monday, did not participate in the decision.
The case, initially brought under the Obama administration, comes as the Trump administration has vowed to more strictly enforce immigration laws.
Originally, 28 mothers and their children entered the US border in Texas in late 2015. They were immediately placed in expedited removal proceedings. Represented by the American Civil Liberties Union, they argue they suffered “gender-based violence, including sexual assault, by men from whom they could not escape” and that they were targeted by gangs because “they are single women residing without a male household member to protect them.” They sought to challenge their removal proceedings in federal court, arguing that they did not receive substantive procedural rights to which they were entitled.
A federal appeals court ruled against the petitioners, arguing that Congress could deny review for those who have been denied initial entry into the country who were apprehended close to the border. The court essentially treated the petitioners as equal to those who arrived at the border but had not yet entered.
“We conclude that Congress may, consonant with the Constitution, deny habeas review in federal court of claims relating to an alien’s application for admission to the country, at least as to aliens who have been denied initial entry or who, like Petitioners, were apprehended very near the border and, essentially, immediately after surreptitious entry into the country,” wrote the majority of the Third Circuit Court of Appeals.
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Here’s a link to the Third Circuit’s decision in Castro v. DHShttp://www2.ca3.uscourts.gov/opinarch/161339p.pdf
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This could be the real “sleeper” in the Trump Administration’s “get tough” immigration enforcement plan. Given the 540,000+ backlog in the U.S. Immigration Courts, the Administration appears to be looking for ways to circumvent the court process entirely wherever possible.
DHS could easily change the existing regulations to “max out” so called “Expedited Removal” by DHS enforcement officers by applying it to everyone unable to establish at least two years’ continuous residence in the U.S. (Currently, the cutoff is 14 days if apprehended within 100 miles of the border.)
Even individuals who meet the two-year requirement could be subsumed in the Expedited Removal regime. Without a right to be represented by counsel, to have a full hearing before an impartial decision maker, and to appeal to the Article III Federal Courts, an individual wrongly placed in the expedited process would have little chance of avoiding summary removal without a chance to apply for relief that might be available before the Immigration Court.
While the Supreme Court’s refusal to grant certiorari in Castro is not a decision on the merits, to date no circuit has ruled in favor of the claimants. Unless and until that happens, it is unlikely that the Supremes will even consider the advocates’ arguments for at least some degree of judicial review of Expedited Removal.
PWS
04-17-17

WashPost OPINION: David Cole Lays Out The Case For Rejecting “Travel Ban 2.0” — Why Judges Should Look Behind The Language OF The EO To Determine “Intent”

https://www.washingtonpost.com/opinions/judges-shouldnt-ignore-what-we-all-know-trumps-travel-ban-is-really-about/2017/03/22/4ad23ce2-0f21-11e7-ab07-07d9f521f6b5_story.html?utm_term=.e93e1d53f89f

Cole writes:

“So does the immigration or the establishment-clause test govern? The answer should depend on the nature of the government’s action. Deference is proper when the political branches draw customary and “bona fide” immigration lines, especially when there is no suggestion of an improper purpose. It makes sense to defer to immigration decisions based on family ties or adherence to visa conditions, because it is next to impossible to regulate immigration without drawing such lines. But the Trump administration has advanced no reason immigration law should be a tool for denigrating religion.

Establishing religion has never been a proper goal of immigration law — or any law. Targeting Islam violates the rights of Americans, whatever form it takes; there is no justification for giving the government a pass because it is regulating the border. When Trump signed the first travel ban, he said, “We all know what that means.” We do, indeed. And judges, no less than the rest of us, must not blind themselves to what “we all know.”

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Curmudgeonly Observation Of The Day

As noted in his op-ed, Professor Cole wears “many hats,” one of which is as the attorney for the plaintiffs in International Refugee Assistance Project v. Trump, currently pending on appeal by the Government in the U.S. Court of Appeals for the Fourth Circuit.

I’m not saying that there is anything unethical or improper about Cole writing this article. Attorneys seem to do it all the time, although more often from the private than from the Governmental side. As long as the judge hasn’t entered a “gag order,”(very rare in civil litigation like this) it’s perfectly legit.

It’s probably just me being an “old guy” and having spent two decades toiling away on appellate and trial benches at the administrative level (certainly not the exalted level of the U.S. District Court or the Fourth Circuit). Nevertheless, as I indicated in my recent blogs about extra-judicial statements by Trump and his advisors, I continue to think it is a “bad practice” for parties and attorneys with pending cases to take the argument “out of court and into the media.”

In my judicial career I presided over a number of so-called “high profile” cases. As a judge, I never appreciated seeing articles or statements in the press by the attorneys of record or parties while the matter was pending before me (or “us” in the case of the BIA).

To me, it always seemed to indicate a curious desire by the party to have the case tried in a forum “other than the one I was presiding over.” That didn’t necessarily warm my heart or increase my respect for the party.

Of course, as I judge I had to “get over it” (in the words of my esteemed former colleague, now retired, Judge Wayne R. Iskra) along with lots of other annoying “peripheral stuff” to treat the parties fairly and make a just decision on the law and facts. But, I always wondered: “Why even put that seemingly unnecessary ‘hurdle’ in front of me.”

Sure, nothing takes the place of “real life” reflections from those involved in big cases. That’s what “after the fact” articles,  press conferences, law review pieces, books, and even movies are for. But, I think that it is most prudent for those actively involved in pending litigation to let their statements and filings in court speak for them. Surely, there are others in academia and the NGO community who could have written the same article that Cole did based on what is already in the public record.

PWS

03/24/17

 

New Case Challenges DHS Delays In Bringing Detainees Before U.S. Immigration Courts!

https://www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlines/archive/2017/03/11/class-action-lawsuit-claims-delays-in-immigration-courts-cancino-castellar-v-kelly.aspx?Redirected=true

From LexisNexis:

“ACLU Files Class Action Lawsuit Against DHS Challenging Months–Long Delays in Bringing Detained Immigrants, Asylum Seekers Before Judges

Thousands Are Incarcerated For Months In Remote Facilities Waiting To See A Judge

“The ACLU of San Diego & Imperial Counties (“San Diego ACLU”), Fish & Richardson P.C., and the Law Offices of Leonard B. Simon P.C. filed a class action lawsuit in federal court yesterday against the U.S. Department of Homeland Security and the Department of Justice. The suit seeks to end the excessive delays depriving civil immigration detainees of due process and prompt judicial review.

Every day, immigration agencies incarcerate tens of thousands of longtime U.S. residents, victims of persecution, and others in remote detention centers, ripped from their families and without access to legal support. None are serving time for a crime – and no judge has determined that there is probable cause to detain them – yet they are held in these deplorable detention facilities while they pursue legal avenues to remain in the U.S.

In San Diego and Imperial Counties, these detainees can languish for months before they are brought before a judge just to begin their case and learn for the first time why they are being incarcerated, what they can do to help present their case, or whether they can take steps to seek their release and get back to their loved ones.”

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The system is already badly broken. And the Trump Administration’s poorly-conceived plans to enforce and detain to the max are just going to make it worse. Likely that cases such as this, combined with arrogance and poor judgement by the Administration, eventually are going to result in Federal Court supervision of virtually every aspect of immigration hearing process. The case is Cancino Castellar v. Kelly.  Keep an eye on it!

PWS

 

 

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

http://www.huffingtonpost.com/entry/doj-private-prisons-sessions_us_58af529ce4b0a8a9b780669a

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.”

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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.

PWS

 

BREAKING: WashPost: DHS Memos Detail Ramped Up Enforcement — Key Provisions: 15,000 More Agents, More Detention, Expanded Expedited Removal, Return To Mexico Pending Hearings, Target U.S. Parents Of Smuggled Kids, More Use Of Locals To Enforce Immigration Laws, PD Restricted, More IJ Televideo To Border, More Scrutiny of Credible Fear — Border Patrol Union Happy — DACA Remains (For Now) — David Nakamura Reports — Read Memos Here!

https://www.washingtonpost.com/politics/memos-signed-by-dhs-secretary-describe-sweeping-new-guidelines-for-deporting-illegal-immigrants/2017/02/18/7538c072-f62c-11e6-8d72-263470bf0401_story.html?hpid=hp_rhp-top-table-main_dhs815pm%3Ahomepage%2Fstory&utm_term=.bcdb7a1851e0

“Homeland Security Secretary John F. Kelly has signed sweeping new guidelines that empower federal authorities to more aggressively detain and deport illegal immigrants inside the United States and at the border.

In a pair of memos, Kelly offered more detail on plans for the agency to hire thousands of additional enforcement agents, expand the pool of immigrants who are prioritized for removal, speed up deportation hearings and enlist local law enforcement to help make arrests.

The new directives would supersede nearly all of those issued under previous administrations, Kelly said, including measures from President Barack Obama aimed at focusing deportations exclusively on hardened criminals and those with terrorist ties.

. . . .

The memos don’t overturn one important directive from the Obama administration: a program called Deferred Action for Childhood Arrivals that has provided work permits to more than 750,000 immigrants who came to the country illegally as children.”

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Here are the two memos signed by Secretary Kelly (thanks to Professor Alberto Benitez):

http://www.mcclatchydc.com/news/politics-government/white-house/article133607784.ece/BINARY/DHS%20enforcement%20of%20immigration%20laws

http://www.mcclatchydc.com/news/politics-government/white-house/article133607789.ece/BINARY/DHS implementation border security policies

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Looks like everything is a “priority,” almost everyone will be detained, and DHS Assistant Chief Counsel won’t be offering PD or other negotiated “deals” except in extraordinary situations.

It’s not even clear from this whether the ACCs will still have authority to “waive appeal” in cases where the DHS loses. If not, that means that the BIA could also be overwhelmed with marginal DHS appeals.

While one of the memos notes the 534,000 Immigration Court backlog, there is a total disconnect in putting all these new priorities into Immigration Court without any plan for dealing with the 534,000 already there. (Most folks already here arrived at least two years ago, so even the greater use of expedited removal will leave hundreds of thousands of potential new filings for the Immigration Courts.)

When everything is a priority, nothing is a priority! Looks to me like another ill-conceived, “built to fail,” scheme.  Over time, these plans are likely to be taken apart by the Article III Courts, bit by bit, piece by piece, until we have total chaos in the immigration enforcement system. Haste makes waste.

PWS

02/18/17

 

N. Rappaport In HuffPost: Visa Restrictions Under President Trump’s EO Might Expand!

http://www.huffingtonpost.com/entry/5894ed61e4b061551b3dfe64?timestamp=1486251772708

Nolan writes in HuffPost:

“Too much attention is being paid to a 90-day travel ban in President Donald Trump’s Executive Order Protecting the Nation From Foreign Terrorist Entry into the United States (Order). While it is a serious matter, the temporary suspension of admitting aliens from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen into the United States is just the tip of the iceberg. Other provisions in the Order may cause much more serious consequences.

Section 3(a) of the Order directs the Secretary of the Department of Homeland Security (DHS), in consultation with the Secretary of the Department of State (DOS) and the Director of National Intelligence, to determine what information is needed “from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” This applies to all countries, not just the seven that are subject to the 90-day suspension.

Those officials have 30 days from the date of the Order to report their “determination of the information needed for adjudications and a list of countries that do not provide adequate information (emphasis supplied).”

Section 3(d) directs the Secretary of State to “request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.” Section 3(e) explains the consequences of failing to comply with this request. Note that this also applies to all countries, not just the seven that are subject to the 90-day delay.

(e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, …) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs (emphasis supplied).
This is far more serious than the 90-day ban on immigration from the seven designated countries. With some exceptions, President Trump is going to stop immigration from every country in the world that refuses to provide the requested information. And this ban will continue until compliance occurs.”

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If this happens, there are likely to be more challenges, and more work for lawyers. Could President Trump turn out to be the best thing that has happened to the U.S. legal profession lately? Stay tuned.

PWS

02/05/17