Congress – Page 46 – immigrationcourtside.com

THE UGLY SIDE OF HISTORY: AMERICA CONTINUES TO TREAT ITS ESSENTIAL MIGRANT WORKERS AS “SUB-HUMAN” — “We cannot help what the virus does; all we can control is our reaction to it, and what we do next. This pandemic has shone a light on the ugliness of our “here.” Until the US treats all its immigrants as human beings, with full equal rights, we will still be far from ‘there,’” writes Maeve Higgins in the New York Review of Books.

https://apple.news/Ay-5bxf63ML-TZgioC-ixQA

Higgins writes:

While corporations are going on life support thanks to this huge government bailout, undocumented immigrants and their families, among them US citizens, are being allowed to suffer, to starve, and, without access to health care, perhaps even to die. As things already stood, undocumented immigrants were ineligible for any federally funded public health insurance programs. On top of that, the millions who have tax IDs, so that they can work without formal authorization, are now denied help in the form of unemployment benefits—they are the only US taxpayers excluded from the coronavirus stimulus package.

. . . .

It’s also troubling to single out immigrants because of the historic scapegoating of immigrants during other health crises. The historian Alan M. Kraut writes that in the 1830s, Irish immigrants were stigmatized as bearers of cholera, and at the end of the nineteenth century, tuberculosis was dubbed the “Jewish disease.” Scapegoating also obscures a longer thread in a bigger pattern, regardless of which party or administration is in power. According to Professor Viladrich, the American government’s denying assistance to this group of working immigrants is the historic norm.

“A lot of this is related to a labor force that is disposable,” she said. “There is no contradiction here; it is very consistent with ACA, with welfare reform, all of that. The systematic exclusion of immigrants is parallel with the systematic exploitation of immigrants.”

Senator Rand Paul, Republican of Kentucky, lobbied hard to ensure that people without work authorization would be excluded from the CARES Act. On the Senate floor, he spoke against child tax credit going to people without social security numbers:

If you want to apply for money from the government through the child tax credit program, then you have to be a legitimate person… It has nothing to do with not liking immigrants. It has to do with saying, taxpayer money shouldn’t go to non-people.

His office later said he was referring to people who fraudulently claimed a child in order to reap the federal benefit. Whatever he meant by “legitimate person” and “non-people,” the effect was the same: in the eyes of the law, undocumented immigrants would be non-people.

Giorgio Agamben, an Italian philosopher, used the term “bare life” to describe a life reduced to plain biological facts, the robbing of a person’s political existence by those who have the power to define who is included as a worthy human being and who is excluded. While the labor of undocumented people is gladly accepted, their humanity has been tidily erased by lawmakers in Washington, D.C.

The immigration and legal historian Daniel Kanstroom reminds us that in times of trouble, like wars or national emergencies, immigrants are the first to get thrown overboard. It was in part due to the ban on Chinese immigrants back in the late nineteenth century and early twentieth century that the demand for Mexican workers increased dramatically. In his 2007 book Deportation Nation: Outsiders in American History, Kanstroom explained how this ban combined with wartime labor needs in 1917 led to the US government’s systematic recruitment of Mexican workers: “From 1917 through 1921, an estimated 50,000–80,000 Mexican farm workers entered the United States under this program, establishing a legal model and cultural mindset that endured for decades to come.”

Kanstroom cites a line from the 1911 Dillingham Commission, an extensive bipartisan investigation into immigration, that “The Mexican… is less desirable as a citizen than as a laborer.” The precedent was set, and what followed was a cycle of recruitment, restriction, and expulsion. More than one million people of Mexican ancestry were forcibly removed from the United States during the Depression years. Some of the people deported by the government to Mexico were US citizens, but then as now, because of their undocumented relatives, they were subject to the same brutal treatment.

In 1942, as a wartime labor shortage loomed, the US worked out an agreement with Mexico for short-term, low-wage workers to fill in the gap. The Bracero Program, as it was known, continued until 1964, with some 4.5 million Mexican workers legally entering the country during those years. There were enormous contradictions in the way those workers were treated: ad hoc legalization programs designed to help big farmers took place at some times; then, at others, there were huge deportation drives when the demand for labor fell off—most notoriously, the terrifying round-ups of 1954’s so-called Operation Wetback.

According to the scholar of migration Nicholas De Genova, “It is precisely their distinctive legal vulnerability, their putative ‘illegality’ and official ‘exclusion,’ that inflames the irrepressible desire and demand for undocumented migrants as a highly exploitable workforce—and thus ensures their enthusiastic importation and subordinate incorporation.” It is no mistake that there remain millions of “illegal” workers of Latino ethnicity contributing their labor, taxes, and humanity to this country; it suits America very well in the good times, and always has.

. . . .

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Read the rest of Maev’s outstanding analysis of our sordid history of abusing essential immigrant workers, from enslaved African Americans, to Chinese laborers, to Latino workers who have been propping up our economy and keeping us alive during the time of pandemic. Their reward: dehumanization, degradation, deportation without due process, and sometimes death.

I speak often at Courtside about how Trump’s self-righteous, immoral, scofflaw White Nationalist cabal — folks like Miller, Bannon, Sessions, Barr, Cuccinelli, Paul — have been engineering a vile “Dred Scottification” program to dehumanize, abuse, and exploit the most vulnerable, yet often most essential, among us.

I have also highlighted how the Trump kakistocracy’s efforts to create an extralegal, unconstitutional “Reincarnation of Jim Crow” too often have been supported and encouraged by some of those highly privileged Supreme Court Justices whose job was supposed to be protecting all of us, and particularly the most vulnerable persons, from invidious Executive abuses: Chief Justice John Roberts and Justices Alito, Thomas, Gorsuch, and Kavanaugh.

The latest example: In the middle of humanitarian trauma, the “socially distant Justices” managed to find time for a little gratuitous cruelty: denying an application to stay the regime’s irrational, racist, and unlawful “public charge rules” that threaten the lives and safety of immigrants, their U.S. citizen families, and U.S. society as a whole. https://apple.news/ABNL4e_DtRPS4eN5m5gx1ug

Amy Howe writes at Scotusblog:

Under federal immigration law, noncitizens cannot receive a green card if the government believes that they are likely to become reliant on government assistance. The dispute now before the court arose last year, after the Trump administration defined “public charge” to refer to noncitizens who receive various government benefits, such as health care, for more than 12 months over a three-year period. The challengers had argued that the rule is “impeding efforts to stop the spread of the coronavirus, preserve scarce hospital capacity and medical supplies, and protect the lives of everyone in the community” because it deters immigrants from seeking testing and treatment for the virus out of fear that it will endanger their ability to obtain a green card. The federal government countered that it has made clear that the use of publicly funded health care related to COVID-19 “will not be considered in making predictions about whether” immigrants are likely to become a public charge.

https://shar.es/aHxGIP

The Government’s argument doesn’t pass the “straight face” test. The monetary savings from this rule are minuscule; its overriding purpose was to dump on immigrant families and intimidate ethnic, primarily Hispanic, communities. It was the “brainchild” of neo-Nazi Stephen Miller. What greater proof could there be of its White Nationalist purpose? Given the regime’s well-established record of lies and unbridled hostility toward immigrants and communities of color, why would anyone have confidence in the regime’s often hollow or disingenuous “promises?”

Those of us who believe in honoring our immigrant heritage, making our constitutional guarantees reality rather than unfulfilled promises, that human values, empathy, and kindness matter, and that we can and must do better than shallow, often outright evil, folks like Trump, Miller, Cuccinelli, Roberts, Barr, et al. need to retake our Government at the ballot box this November and build a better, fairer, more humane future for America and all persons in our country.

This November, vote like your life depends on it! Because it does!

PWS

04-27-20

ERIN CORCORAN @ THE HILL: RACISM, BIGOTRY, & XENOPHOBIA ARE ALWAYS BAD POLICIES — The Pandemic Is No Exception — “Immigrants are part of the solution to the challenges we face today and should be welcomed rather than banned.”

https://apple.news/AKgOx97sDRfSvo9oc3h61cA

The use of executive branch power to wage a war on immigrants is one of the defining legacies of President Trump. He went on the offensive under the disguise of the coronavirus pandemic to advance his policy priority to significantly restrict legal immigration to the United States. This politically motivated maneuver violates federal and international law, and this is also morally reprehensible and disastrous for the domestic economy at home.

. . . .

It is not just health care that needs immigrants. A recent study found that the majority of economic growth between 2011 and 2016 is due to greater labor supply due to immigration. Immigrants also assist the country with innovation. They are twice as likely to start a business, to receive a Nobel Prize or Academy Award, or to receive a patent than native born workers.

Denying protection to individuals fleeing persecution based on potential public health grounds sends dangerous signals to oppressors and rogue nations that they are free to act with impunity because powerful nations are unwilling to protect their victims. Refugees searching for protection are built in the collective responsibility of the international community, even in any period of public crisis. Efforts by the president to renounce these duties are morally wrong and politically dangerous for the world.

Waging a war on immigrants will not protect us from the coronavirus. It instead puts individuals fleeing harm in further danger and weakens the economy of the United States. Immigrants are part of the solution to the challenges we face today and should be welcomed rather than banned.

.

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Read the rest of Erin’s article at the link.

The Clown Prince’s 🤡 “maliciously incompetent” ☠️ response to the coronavirus pandemic 🤮 continues to be one of the most stunning failures of Presidential leadership in U.S. history — one that will continue to put American lives at risk well into the future.

Unhappily, cowardly bashing of immigrants and constantly sending out racist “dog whistles” helped this charlatan get elected and remains one of the few things he’s good at (grifting, lying, and avoiding responsibility are others).

This November, vote like your life depends on it! Because it does!

PWS

04-26-20

LEE SUNDAY EVANS @ WATERWELL: “The Power of Transcripts”— “It wasn’t hard to recognize the power of each individual story, and the patterns revealed when reading two, three, ten testimonies were a disturbing depiction of how the protections outlined in the Flores Settlement Agreement (FSA) were being violated.”

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Retired Immigration Judges

FYI, an essay by Waterwell Artistic Director Lee Sunday Evans on the company’s immigration law related work. Best, Jeff

https://howlround.com/power-transcripts

The Power of Transcripts

In July 2019, I sat down with a few people at the Immigrants’ Rights Clinic at Columbia Law School to discuss the possibility of bringing a performance of The Courtroom: a re-enactment of one woman’s deportation proceedings—a production by the New York City–based theatre company Waterwell, where I’m artistic director—to their campus. Fast forward thirty minutes and Elora Mukherjee—the director of the clinic, an immigration lawyer and professor—had our attention focused in a different direction.

Elora was describing her work as a monitor for the Flores Settlement Agreement—a court settlement that sets the time limit and conditions under which children can be held in immigration detention—over the past twelve years; two weeks earlier, she had provided testimony in front of the House Committee on Oversight and Reform about the deplorable conditions she and her colleagues had witnessed in two immigration detention facilities in Clint and Ursula, Texas. Then, Elora politely declined to bring The Courtroom to Columbia Law School—at least for the time being—and asked if Waterwell would consider making a new project using first-person testimonies of the children and young parents she had met at the border.

I’ll start at the beginning of our company’s engagement with immigration and then describe The Flores Exhibits—the project Waterwell created in response to this conversation with Elora Mukherjee.

The Courtroom. Photo by Miguel Amortegui

The Courtroom

In the summer of 2018, Arian Moayed—an actor, writer, director, and co-founder of Waterwell—was watching, along with the rest of the United States, as an increasingly heated debate about immigration enveloped our country. Family separations at the border and the uproar that followed flooded the news, along with stories about how increasingly rapid deportation proceedings were compromising due process. Arian was born in Iran, immigrated here when he was seven years old, and became a citizen when he was twenty-six. The stories of how the United States was treating immigrants hit him personally.

He thought: How can Waterwell respond? What can we do to add something meaningful to this conversation?

Then a new question crystallized in his mind: We hear about them in the media, but what does a deportation proceeding in court actually look like? How do deportation proceedings work?

While reaching out to a handful of immigration lawyers and asking them to share transcripts of deportation proceedings, Arian met Richard Hanus, an immigration lawyer in Chicago, who has been practicing for over twenty-five years. Richard shared transcripts of one case he thought might be of interest, and Arian read it right away. The case was powerful.

The transcripts gave the story a certain kind of objectivity, an unvarnished truthfulness about immigration.

A few months later, I started as the newly appointed artistic director of Waterwell. Arian and I dove into these transcripts, did a rough edit of them, then another, then another, then an intense three-day text workshop with incredible actors, and came out with a script that had a three-act structure, with all the dialogue taken entirely from the court transcripts.

We asked Jeffrey S. Chase, a former immigration judge and widely respected leader in the field, to help us understand legal terms in the transcripts and to advise us on how to make most accurate representation of immigration court. He made a terrific recommendation: Go watch some proceedings.

We met at 26 Federal Plaza, went through the metal detectors, and headed up to the floors where proceedings take place. The courtrooms are small, with drop ceilings. There are no witness boxes and there is often no lawyer representing the immigrant—if you are an immigrant required to appear in immigration court, you don’t have automatic access to legal representation. This was not news to Arian, but for me, as a person born in the United States who had never interacted with the immigration system, I found it surprising and unsettling. Immigrants represent themselves, or pay not-unsubstantial sums to hire a lawyer. Non-profits and law school clinics step in to fill this gap, but they do not—and cannot—reach everyone.

Watching court proceedings—the combination of banal procedural details and life-and-death stakes—fundamentally shaped our thinking. What we witnessed was quiet, tense, tedious, disorienting. We knew that, for our performance, we’d have to risk recreating those very dynamics. It wouldn’t be quite a play but a reenactment. As we created The Courtroom, we focused on the small, regular mistakes shown in the transcripts—awkward phrasing of a thought, the quick mistaken use of a word—embracing them as interesting windows into how people function in court when they are prepared but don’t have a script, and set out to find real courtrooms to perform in. We created the original staging in our most hallowed venue: a grand courtroom on the seventeenth floor of the Thurgood Marshall United States Courthouse, the seat of the Second Circuit Court of Appeals. Though this prestigious courtroom was very different from small, plain immigration courts, the architecture taught us a lot about how courtrooms work.

The Courtroom. Photo by Maria Baranova.

The transcripts we used to create the script were from the case of Elizabeth Keathley, an immigrant from the Philippines who came to the United States on a K3 visa after she married her husband, who was a United States citizen. After inadvertently registering to vote at the DMV in Bloomington, Illinois, receiving a voter registration card in the mail, and voting, Elizabeth had to appear in court for deportation hearings. She lost the first case, but her appeal was heard in the Seventh Circuit, where the federal judges ruled in her favor.

The first performances were terrifying. We had no idea if the piece would capture people’s interest and hold their attention. But we put our faith in how this case encapsulated the age-old adage about the personal and the political. Through this story about a married couple in the early stages of building their family, who had made one honest mistake that put the wife in danger of being deported, the audience got to see a portrait of our nation’s legal system that exposed its catastrophic flaws and showed its singular, profound potential.

We were floored by audiences’ responses to the performances and started to understand the real power of the transcripts.

The transcripts gave the story a certain kind of objectivity, an unvarnished truthfulness about immigration—a polarizing issue that seems relentlessly distorted when we encounter it in the media, something that is all the more painful because it is central to our country’s identity. Ali Noorani, director of the National Immigration Forum, put it perfectly in his book, There Goes the Neighborhood: “Immigration gets at the core of who we are, and who we want to be, as a country.”

The Courtroom gave audiences an opportunity to get closer to the immigration legal system’s inner workings. Not to be told what to think, not to be told again how bad things are, but to get closer to something true and real. It was our realization about the power of unaltered transcripts that guided us when we started to think about what to make in response to our conversation with Elora Mukherjee.

The Flores Exhibits

We told Elora we would think deeply about how we could make a meaningful project, and she said she’d send us the testimonies. We took the conversation with her very seriously, feeling a sincere responsibility as artists to take up the need she put before us but having very little idea what we could create in response.

I printed out everything Elora sent me and sat down to read the sixty-nine testimonies. I thought: Again, here is that combination of procedural banality alongside life-and-death stakes. It unnerved me. The project needed to capture that specific disorienting, haunting aspect of the testimonies. It wasn’t hard to recognize the power of each individual story, and the patterns revealed when reading two, three, ten testimonies were a disturbing depiction of how the protections outlined in the Flores Settlement Agreement (FSA) were being violated.

Here’s a quick history of the FSA and why it’s important: In 1985, a fifteen-year-old Salvadoran girl named Jenny Flores was held in substandard conditions in immigration detention for a prolonged period of time. Based on her experience, a number of legal organizations filed a lawsuit against the government, which in 1997 resulted in the Flores Settlement Agreement. This set standards for the treatment of unaccompanied children (anyone under the age of eighteen) while they are in detention, including requiring the government to provide reasonable standards of care as well as safe and sanitary living conditions, and to release minors without any unnecessary delay, setting a cap of twenty days.

It is often impossible for people held in detention to socially distance, and there are many reports that there is no access to soap or sanitizer in numerous facilities.

The sixty-nine testimonies that Elora gave us were exhibits filed by the National Youth Law Center in a temporary restraining order requesting emergency relief for minors held in Customs and Border Patrol facilities; the firsthand accounts demonstrated violations of the Flores Settlement. Wrenching news reports about children being held in detention facilities for extended period of times—sometimes in cages—without access to basic hygiene supplies and adequate nutrition or sleep were based on these lawyers’ experiences and these testimonies.

What could we create to respond? We wanted people to experience the testimonies in full. We wanted people outside of New York City, where we’re based, to hear them. We wanted to involve actors but also all the incredible people we’d met during the process of creating The Courtroom who were not actors: lawyers, former judges, immigrant-rights advocates, immigrants who are not in the arts, and playwrights, designers, and other artists invested in this issue.

We decided not to make a piece of theatre. We decided to make a series of videos.

The testimonies would be read in full, without any textual or cinematic editing. We would ask readers from different sectors of society to participate with the hope that it would demonstrate—in a quiet, un-didactic way—a wide-ranging solidarity and investment in the issue. Each reader would sit at a simple wooden table with a glass of clean water, which is often described in the testimonies as being hard for immigrants to get in detention.

The Flores Exhibits. Photo courtesy of Andrew Kluger.

We wanted the readers to be good storytellers but I directed them not to take on any “character” they gleaned from the text or embody the experience described by the person who gave the testimony to the lawyers. We said the goal was for people to hear the words as clearly as possible—without emphasis, without dramatization.

To date, we have filmed forty-three out of the sixty-nine testimonies and are working to complete the filming of the remaining ones. This coming fall, we hope to instigate and facilitate live screenings of The Flores Exhibits around the country as a way to bolster support, organizing, and advocacy for the protections outlined in the Flores Settlement Agreement to be upheld and improved.

Taking Action

Right now, there are efforts around the country to decarcerate as many people held in jails, prisons, and detention facilities as possible due to the amplified dangers posed by COVID-19 to anyone in this kind of environment. It is often impossible for people held in detention to socially distance, and there are many reports that there is no access to soap or sanitizer in numerous facilities.

Using excerpts from videos in The Flores Exhibits, we released this ninety-second video connecting firsthand testimonies of people held in detention in June 2019 to the urgent need to get people out of detention during the COVID-19 pandemic.

If you are interested in getting involved, here are a few ways to start:

Find out where there are detention facilities near you: local jails and prisons often have contracts with ICE, and there are dedicated ICE facilities, often in rural areas. Once you know where those facilities are in your state, follow them in the news and connect with and support local organizations and elected representatives who advocate for the release of immigrants, proper living conditions, and access to healthcare in detention. (For a full explanation of government agencies involved in immigration detention, watch this video.)
Join and amplify the efforts of Detention Watch Network, a coalition of eight hundred organizations around the country to get urgent messages to governors, ICE directors, sheriffs, and other represented officials to release people from detention during COVID-19.
Join New Sanctuary’s efforts to advocate to free unaccompanied minors held in immigration detention.
Join Freedom for Immigrants to get involved in your area.
Read the Southern Border Community Coalition’s New Border Vision so you can be part of their proactive movement to transform culture, values, and policy at our southern border.

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Think about the grotesque perversions of justice going on in the US today! Desperate kids seeking protection and entitled to legal process being illegally held in detention as unlawful punishment and coercion in violation of U.S. Court orders.

Some of the criminals who masterminded and carried out these illegal, unethical, and totally immoral schemes not only remain free but, outrageously, are on our public payroll: Thugs like Stephen Miller, Chad Wolf, Billy Barr, and Ken Cuccinelli. “Cooch Cooch” actually continues to spew his vile propaganda after being held by a Federal Judge to have been illegally appointed.

Another notorious human rights criminal and child abuser, Jeff “Gonzo Apocalypto” Sessions, remains at large and is outrageously running for return to the Senate, a position he already had abused and misused to promote a White Nationalist racist agenda in the past.

Still others like “Big Mac With Lies” and Kirstjen Nielsen are also at large, disingenuously trying to “reinvent” themselves by having the audacity to tout their past criminal activities, public lies, and human rights abuses as “senior executive experience.”

As these transcripts show, it’s a “world turned upside down” under the vile Trump kakistocracy. But, we all have a chance to redeem our nation in November by voting the kakistocracy out and re-establishing honesty, human values, mutual respect, cooperation, our Constitution, and the rule of law as the hallmarks of America.

On the other hand, the despicable performance by those public officials who abandoned their legal and moral obligations to humanity also shines a light on the many unsung heroes of our time: folks like Professor Elora Mukherjee, Lee Sunday Evans, Arian Moayed, Judge Jeffrey Chase, and the many other members of the New Due Process Army throughout the U.S. Unlike many of our public officials, they are standing up for Due Process and the rule of law in the face of seemingly never-ending tyranny, racism, xenophobia, and hate-mongering from the Trump regime.

Due Process Forever! The Regime’s Continuing Child Abuse ☠️☠️ Never!

PWS

04-26-20

🏴‍☠️BRING IT ON! – “Moscow Mitch” 🇷🇺 Throws Down The Gauntlet, Challenges Trump For “Vilest Pol In America” 🤮☠️ — Can He Beat A Guy Who Uses The “Bully’s Pulpit” To Encourage Americans To Drink & Inject Poison? ☠️☠️☠️☠️☠️ — Nobel Prize 🏆 Winning Economist Paul Krugman @ NY Times Tells Us How “MM” Can Go Even Lower: “So yes, McConnell’s position is stupid. But it’s also vile.”

Paul Krugman
American Economist, Columnist, & Nobel Prize Winner

https://www.nytimes.com/2020/04/23/opinion/mcconnell-coronavirus-states.html

Krugman writes, in part, in the NYT:

. . . .

So yes, McConnell’s position is stupid. But it’s also vile.

Think of who would be hurt if state and local governments are forced to make drastic cuts. A lot of state money goes to Medicaid, a program that should be expanding, not shrinking, as millions of Americans are losing their health insurance along with their jobs.

As for the state and local government workers who may be either losing their jobs or facing pay cuts, most are employed in education, policing, firefighting and highways. So if McConnell gets his way, America’s de facto policy will be one of bailing out the owners of giant restaurant chains while firing schoolteachers and police officers.

Last but not least, let’s talk about McConnell’s hypocrisy, which like his stupidity comes on multiple levels.

At one level, it’s really something to see a man who helped ram through a giant tax cut for corporations — which they mainly used to buy back their own stock — now pretend to be deeply concerned about borrowing money to help states facing a fiscal crisis that isn’t their fault.

At another level, it’s also really something to see McConnell, whose state is heavily subsidized by the federal government, give lectures on self-reliance to states like New York that pay much more in federal taxes than they get back.

We’re not talking about small numbers here. According to estimates by the Rockefeller Institute, from 2015 to 2018 Kentucky — which pays relatively little in federal taxes, because it’s fairly poor, but gets major benefits from programs like Medicare and Social Security — received net transfers from Washington averaging more than $33,000 per person. That was 18.6 percent of the state’s G.D.P.

True, relatively rich states like New York, New Jersey and Connecticut probably should be helping out their poorer neighbors — but those neighbors don’t then get the right to complain about “blue state bailouts” in the face of a national disaster.

Of course, McConnell has an agenda here: He’s hoping to use the pandemic to force afflicted states to shrink their governments. We can only hope both that this shameless exploitation of tragedy fails and that McConnell and his allies pay a heavy political price.

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Read the rest of Krugman’s article at the link.

Have we all just been transported to “Jonestown 1978” ☠︎⚰️☠️⚰️?” Is our “Clown Prince” 🤡 actually the reincarnation of Rev. Jim Jones 🏴‍☠️?

Tired of being in the “Blue Majority” supporting “Red America” while excluded from control of our National Government? Tired of a Government of self-centered grifters — incapable of governing responsibly and in the public interest, but great at lining their pockets and those of their fat cat backers? Tired of an “Amateur Night at the Bijou” foreign policy that diminishes our nation and makes us the laughingstock the world? Tired of dealing with dirty water, polluted air, and crumbling bridges while the “Chief Clown” 🤡 sharpens his golf game? Tired of a kakistocracy that’s also a kelptocracy 💸 and practices nepotism? Tired of expensive health care that too often doesn’t improve the health of our nation? Tired of wages stagnating and benefits disappearing while the stock market goes bonkers and execs and shareholders get big payouts? Tired of lousy, anti-democracy judges 👨‍⚖️ who advance the interests of corporations, guns, and the GOP over the rights and dignity of individuals under our laws? Tired of paying the salaries of Neo-Nazi bigots like Stephen Miller? Tired of funding the “Afternoon Clown Show” 🤡 from the White House every day and dealing with its never-ending stream of dangerous ☠️ lies, misrepresentations, and fabrications?

Vote ‘Em Out, Vote ‘Em Out!

This November, send the “Clown Prince” 🤡, MM 🤮, and the rest of their anti-American party of disunity, incompetence, disorder, cruelty, stupidity, racism, and grift packing! Vote like your life depends on it! Because, it does!

PWS

04-24-20

TWO-FER: Billy Barr Assaults First & Fifth Amendments In Frivolous Attack On NAIJ — Seeks To Harass, Silence Immigration Judges’ Union For Fearlessly Speaking Out Against Demise Of Due Process, Improper Political Influence, Gross Mismanagement In America’s Most Unfair & Dysfunctional “Courts!”

Judge Amiena Khan is the executive vice president of the National Association of Immigration Judges (NAIJ) — Judge Amiena Khan Executive Vice President National Association of Immigration Judges (NAIJ)

Judge Dorothy Harbeck, an immigration judge in New York City, is the secretary/treasurer of the NAIJ — Judge Dorothy Harbeck Secretary/Treasurer of the NAIJ

Immigration TFL_Mar-Apr2020

Judge Amiena Khan and Judge Dorothy Harbeck (in their capacities as NAIJ Officers) write in the Federal Lawyer:

DOJ Tries to Silence the Voice of the Immigration Judges—Again!

The Second Attempt to Decertify the National Association of Immigration Judges

by Judge Amiena Khan and Judge Dorothy Harbeck

Immigration Law

Judge Amiena Khan is the executive vice president of the National Association of Immigration Judges (NAIJ) and serves as the co-chair of the NAIJ Vulnerable Populations Committee. Judge Khan was appointed by Attorney General Eric Holder in December 2010. She is seated at the New York Immigration Court and is a member of the New York State Bar. Judge Khan is the programs chair of the FBA Immigration Law Section and is also a member of the National Association of Women Judges.

Judge Dorothy Harbeck, an immigration judge in New York City, is the secretary/treasurer of the NAIJ. She is also an adjunct professor of law at Columbia and Rutgers. She
is a fellow of the Federal Bar Foundation, is on the Executive Board of the FBA Immigration Law Section, and is a member of the bar in New Jersey and New York.

The 2019 DOJ Petition for Decertification
In August 2019, the Department of Justice (DOJ), in a veiled attempt to silence the voice of the immigration judges (IJs), filed a petition with the Federal Labor Relations Authority (FLRA) to decertify the Nation- al Association of Immigration Judges (NAIJ).1 The NAIJ—origi

The 2019 DOJ Petition for Decertification

In August 2019, the Department of Justice (DOJ), in a veiled attempt to silence the voice of the immigration judges (IJs), filed a petition with the Federal Labor Relations Authority (FLRA) to decertify the Nation- al Association of Immigration Judges (NAIJ).1 The NAIJ—originally certified in 1979 as the recognized representative for collective bargaining for all U.S. IJs—is a voluntary association that represents and speaks for the interests of the nation’s 440 IJs. The NAIJ was formed with the objectives of promoting independence and enhancing the professionalism, dignity, and efficiency of the immigration courts. DOJ asserts that IJs should be reclassified as “management officials.” This would mean IJs could no longer union- ize, be part of a collective bargaining unit, or speak independently.

NAIJ serves as the only voice of the IJs who cannot speak out without prior express permission of DOJ’s Executive Office for Immigration Review (EOIR).2 NAIJ serves to afford transparency and accountability. The immigration courts are not independent courts under Article I or Article III of the Constitution. They are wholly contained within DOJ. Without a union,

IJs have no protection against the politicization of the process and their decisions. Without transparency,

the integrity of the process is in jeopardy. Without a union, the IJs cannot protest policy measures, such as the imposition of quotas and performance measures; the IJs cannot contest the numerous policies enacted by EOIR that encroach upon and undermine the inde- pendent decision-making ability of the IJs; and the IJs will not be able to rally against the effective speedup of the workforce, placing due process and fundamental fairness of the proceedings at risk.

How the Process Works

The burden to show that IJs are management officials is on the moving party (i.e., DOJ). The FLRA regional director (RD) has opened an investigation into the

NAIJ, seeking information about its responsibilities. DOJ can submit factual and legal arguments in support of its petition. The RD can then issue a decision or request a hearing to solicit more information. Either party can appeal the RD’s decision to the full FLRA board.

The Unsuccessful 2000 Attempt to Decertify

the Immigration Judges’ Union

This current effort follows a similar, and unsuccessful, strategy pursued by DOJ to decertify the immigration judges’ union approximately 20 years ago. In Septem- ber 2000, the FLRA’s RD rejected DOJ’s argument, and the full FLRA upheld the RD’s decision on appeal. In that prior decertification attempt,3 the FLRA reject- ed DOJ’s argument that IJs make policy through the issuance of decisions, noting that the trial court level IJs do not set precedent and that their rulings are often appealed and reviewed. The FLRA also said that the immigration court system was established specifically so that IJs do not maintain any management duties to enable them to focus on hearings.

The FLRA also ruled that there is a distinct differ- ence between the trial level IJs and the appellate level Board of Immigration Appeals (BIA) members.4 The description of the duties of the IJ were described in the 2000 decertification attempt:

The daily routine of an Immigration Judge involves hearing and deciding cases that arise from the operation of the INS.5 A court’s juris- diction to decide these cases is determined at the time a case is filed. After filing, the cases are randomly assigned by the court administrator to an individual Judge and placed on a Judge’s calendar on his or her master calendar day. At that time, the Judge hears presentations from the parties and their attorneys, identifies the is- sues, and advises individuals as to their right to

March/April 2020 • THE FEDERAL LAWYER • 9

representation. The Judge also sets time frames and briefing schedules, as well as the date for trial.6

The nature of the IJs’ decisions and their position in the hierarchy of binding the EOIR was also set forth:

During a trial, the parties are represented by counsel and the rules of evidence are observed. Thereafter, in arriving at their decisions, Immigration Judges are required to apply immigra- tion statutes, applicable regulations, published decisions of the Board of Immigration Appeals and federal appellate courts, and other foreign and state laws. After the trial, the Judge issues his or her decision, almost always orally, and advises the parties of their appeal rights. Oral decisions are not tran- scribed unless they are appealed; are not published; and are final and binding only with respect to the parties to the case. With limited exception, decisions of the Immigration Judges may be appealed to the Board of Immigration Appeals and review of their decisions is de novo. Certain cases may also be appealed to the appropriate U.S. circuit court.7

Citing its precedential case on the managerial status of BIA members (hereinafter “the BIA Management Case”),8 the FLRA specifically stated that the BIA appellate judges were management officials within the meaning of section 7103(a)(11) of the statute and, therefore, could not be included in the existing bargaining unit. In particular, it concluded that “the incumbent Board Member directly influences activity policy through his participation in the interpreta- tion of immigration laws and the issuance of decisions and, thereby, meets the definition of a management official set forth in section 7103(a)(11) of the Statute.”9

In the 2000 decertification attempt, the RD applied the BIA Management Case and concluded that “unlike decisions of the Board of Immigration Appeals, the decisions of Immigration Judges are

not published, do not constitute precedent, are binding only on the parties to the proceedings, and are subject to de novo review.”10 The RD accordingly concluded that the decisions of the judges do not in- fluence and determine the Agency’s immigration policy, in contrast to the decisions of the BIA.

The FLRA concurred that the RD’s definition of a management official is defined as “an individual employed by an agency in a posi- tion the duties and responsibilities of which require or authorize the individual to formulate, determine, or influence the policies of the agency.”11

Critically, the full FLRA also found that management officials are individuals who: “(1) create, establish or prescribe general princi- ples, plans or courses of action for an agency; (2) decide upon or settle upon general principles, plans or courses of action for an agen- cy; or (3) bring about or obtain a result as to the adoption of general principles, plans or courses of action for an agency.”12

The FLRA distinguished the trial court IJs from the BIA appellate judges by specifically holding that IJs do not “make policy through the issuance of their decisions … that in arriving at their decisions, Immigration Judges are required to apply immigration laws and reg- ulations, that their decisions are not published and do not constitute precedent.” Finally, the RD observed that the decisions are binding only on the parties to the case, are “routinely” appealed, and are subject to de novo review.13 There is no difference in this now.

The FLRA specifically agreed with the RD’s rejection of the EOIR’s claims that “the sheer volume of decisions issued by the [immigration] Judges and the finality of their decisions, unless they are appealed,” affect the EOIR’s policy. This is because “no matter the volume of decisions issued, or number of appeals filed, the fact remains that when an Immigration Judge issues a decision [,] he or she is applying and following established Agency law and policy.”14 Again, there is no difference in this now.

While IJs have some authority to control practice in their own courtrooms, they have no authority to set overall policy as to how the courts as a whole will operate. Nor, critically, do they have the authority to direct or commit the EOIR to any policy or course of action. The IJs are highly trained professionals with the extremely important job of adjudicating cases.15 This organizational structure and supervisory delegation was established specifically so that the IJs are unencumbered by any supervisory and management obligations and are free to concentrate on hearings.16 Aspirationally, this is still the position of the IJs.

. . . .

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

Read the rest of the article at the link. Many thanks to Judge Khan and Judge Harbeck for courageously speaking out and informing us in such a well-documented and scholarly manner.

It’s disgraceful that political leaders who are supposed to be committed to our Constitution and the rule of law instead misuse government funds and abuse their authority to cover up their wrongdoing and mismanagement. In a functional government, Barr and his toadies would be facing impeachment or referral for criminal investigation from Congress for their abuses of authority and attacks on our Constitution. Most certainly, a competent Congress would long ago have removed EOIR from the clutches of the DOJ politicos and placed it where it belongs: as an independent court system under either Article I or Article III.

Due Process Forever!

PWS

04-23-20

🏴‍☠️🆘 AMERICAN NIGHTMARE: THIS DEADLY ☠️🤮 “CLOWN SHOW” 🤡 IS A “COURT” SYSTEM? — You’ve GOT To Be Kidding! — “’Everyone feels the message is, nobody cares if you die as long as we get our numbers,’ said one worker in the office. . . . ‘I feel like half the time, I’m working on Trump’s reelection,’ said an employee in the office who spoke anonymously because of concerns about retaliation. ‘This is just a piece for him to tout when reelection time comes up about how much he’s getting done.’” — Politico’s Betsy Woodruff Swan Takes Us Inside “HQ” In America’s Most Morally Corrupt Court System, Where “Trumpian” Contempt For Due Process & Human Lives ☠️ Extends To Its Own Employees, Many Of Them Lower-Paid Clerical Staff!

https://www.politico.com/news/2020/04/23/doj-union-immigration-deportation-coronavirus-202075

Betsy Woodruff Swan reports for Politico:

The union for lawyers and support staff who handle Justice Department immigration appeals says their office’s working conditions put workers’ lives in danger. And employees in the DOJ office handling those immigration appeals said many suspect it’s because the department prioritizes high deportation numbers over worker safety.

“I feel like half the time, I’m working on Trump’s reelection,” said an employee in the office who spoke anonymously because of concerns about retaliation. “This is just a piece for him to tout when reelection time comes up about how much he’s getting done.”

It’s an accusation a spokesperson for the office vehemently denied. But the conflict is no longer being kept in the DOJ family; the president of that union recently filed a complaint with the Occupational Safety and Health Administration (OSHA), saying management requires too many people to come into the office, putting workers at risk of contracting Covid-19, the sickness caused by the novel coronavirus. Concerns in the office about worker safety were first reported by Government Executive.

At issue are working conditions in DOJ’s Executive Office for Immigration Review (EOIR). The office oversees America’s immigration courts––which are part of the Justice Department––and lawyers there handle appeals from immigrants fighting deportation orders. Those courts face a mammoth backlog of more than one million cases, by Syracuse University’s count. Despite hiring more immigration judges, the backlog has doubled under the Trump administration.

EOIR leaders have maximized how much telework employees there can do, the spokesperson said, adding that the office “takes the safety, health, and well-being of its employees very seriously.”

But the OSHA complaint, which Politico reviewed, says the office is violating a federal law mandating workplaces be free of “hazards that are causing or are likely to cause death or serious physical harm.”

“The agency’s actions described below are proliferating the spread of a known and deadly contagion both within our building and to our surrounding communities,” the complaint reads. The office policies “are expected to result in death and severe health complications and/or possible life-long disabilities,” it says.

The office requires most support staff to come in, rather than telework, as they deal with physical pieces of paper and files as part of their work, per the complaint. The few who can work from home can only do so once a week, and on rotating days because they share the same laptop, the complaint reads. At work, support staff sit in cubicles in a shared area, “in direct breathing paths of each other,” it says.

Nancy Sykes, the president of American Federation of Government Employees Local 3525, filed the complaint on behalf of the union. It represents non-managerial Board of Immigration Appeals employees in the office, including attorneys, paralegals, clerks, and legal assistants.

The EOIR spokesperson, meanwhile, said the office is working to implement coronavirus guidance from the Centers for Disease Control and Prevention, the Office of Personnel Management, and the General Services Administration.

. . . .

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

Read the rest of Betsy’s report at the link. Long a superstar at The Daily Beast, and an articulate “repeat panelist” on “Meet the Press” with Chuck Todd, it’s great to have Betsy “back on the immigration beat” as a part of her “new portfolio” over at Politico. I’ve always found Betsy’s clear prose and insightful analysis enlightening!

Typically within the Trump immigration kakistocracy, the harshest consequences fall jump-on the most vulnerable. In Immigration Court, it’s often unrepresented asylum seekers, some of them mere children, being railroaded through the system with regard to neither due process nor a legally correct application of asylum law. Here, the brunt of the latest EOIR assault on human dignity during the pandemic appears to fall on the support staff at the “bottom of the totem pole” of EOIR’s “bloated at the top,” yet astoundingly misdirected and consequently inefficient, bureaucracy. What a way to run the railroad — even a “Deportation Railroad!” 🚂

As my good friend and Round Table colleague, Judge Jeffrey Chase said: “In spite of having very genuine concerns, the BIA staff are generally off the radar. Thanks to Betsy for spotlighting them. The BIA staff union and the NAIJ put out a joint statement yesterday; let’s hope this begins a period of increased communication and cooperation.”

Many of us “old timers” remember a bygone era when the BIA staff was considered one of the premier places for career attorneys to work at the DOJ. This was largely because staff were treated “like family.” The BIA, in cooperation with the union, actually “pioneered” things like “flexible work schedules” and “work from home” at the DOJ. That union (of which I actually was among the “founding members” back in the 1970’s) was perhaps the first one at the DOJ to represent the interests of both attorneys and support staff. Those times sadly are long gone.

As I’ve mentioned before, under the Trump regime, EOIR “non-management” employees at all levels levels are treated with a disrespect, intentional demeaning, and callous disregard for health and welfare usually reserved for those poor souls trapped in what passes for an immigration justice system under the White Nationalist driven Trump regime. Risking employees’ lives to promote Trump’s reelection agenda? That’s actually illegal on a number of accounts. But, don’t expect any corrective actions in an era where the “rule of law” has been willfully distorted and undermined as Congress and the Article IIIs simply melt away under Trump’s contemptuous scofflaw onslaught.

Unhappily, as Betsy’s article highlights, there appears to be little chance of meaningful change unless and until enough employees actually start dropping dead, by which time it will be too late.

But, as I keep pointing out, there are “other villains” here. Despite DOJ/EOIR efforts to suppress truth, all of this basically is happening in “plain sight,” as we know from folks like Judge Ashley Tabaddor, the NAIJ, the BIA union, former Judges on the Round Table who are speaking out, courageous employees willing to “blow the whistle” anonymously, as well as reporters like Betsy, Erich Wagner at Government Executive (who “broke” this story), and Malathi Nayak at Bloomberg News, to name just a few. The unconstitutional mockery of Due Process, immigration, and asylum laws in Immigration Court hearings is documented in verbatim transcripts available to the Article III Courts and the Congress.

Yet, Congress and the Article III Courts let these grotesque abuses within our justice system go on largely unabated. It’s a disgusting and disturbing saga of the breakdown of America’s democratic institutions and their replacement by an authoritarian, “Third-World style” kakistocracy, headed by a dangerously incompetent and unrestrained clown 🤡 whom those charged with protecting us and our institutions refuse to hold accountable.

This November, vote like your life depends on it! Because it does!🇺🇸 We need “regime change” at all levels. And, that certainly includes a better, more courageous, more scholarly Federal Judiciary that understands immigration and human rights, believes in Due Process and fundamental fairness for all under law, and will finally stand up and put an end to these gross abuses if Congress doesn’t act first. Obviously, it’s also essential to get a new Executive committed to advancing, rather than destroying, our Constitution and the rule of law and who will strive for best, rather than worst, practices in all phases of government.

Due Process Forever! Clown Courts 🤡☠️ Never!

PWS

04-23-20

INSANITY ALWAYS ON THE DOCKET @ EOIR: Court Cleaners In Hazmat Suits Add To The “Clown Court” 🤡 Atmosphere — But, Those Forced To Risk Their Lives ☠️ To Keep The Deportation Railroad 🚂 Rolling Aren’t Laughing 😰!

Hon. A. Ashlley Tabaddor — Hon. A. Ashley Tabaddor
President, National
Association of Immigration Judges (“NAIJ”)

Trump’s ‘Deportation Machine’ Keeps Growing Despite Pandemic – Bloomberg

Malathi Nayak reports for Bloomberg News:

As President Donald Trump prepares to pause immigration into the U.S., the court system that handles the removal of immigrants is projected to issue nearly 60% more deportation orders than last year.

With the rest of the U.S. legal system grinding to a near halt amid the pandemic, at the nation’s 69 federal immigration courts cleaning crews clad in hazmat suits are regularly used to make sure in-person hearings can continue. The courts are moving at speed to reduce a massive backlog of cases despite outdated technology and criticism from advocacy groups and a union representing most of the nation’s 460 immigration judges, who say the pace is putting people at risk of infection.

“The deportation machine has not stopped,” said Florida immigration lawyer Ira Kurzban. “It’s somewhat outrageous given the current circumstances.”

While the number of people deported from the U.S. fell in March, one research group predicts that the total number of deportation orders will rise for the 2020 fiscal year, despite the pandemic. The Transactional Records Access Clearinghouse, a Syracuse University group that tracks government enforcement actions, estimates there will be 340,500 deportation orders in the year ending Sept. 30, 2020, up from 215,535 for the prior year. A spokeswoman for the Justice Department, which oversees immigration courts, declined to comment on the projection, saying it doesn’t certify third-party statistics.

The National Association of Immigration Judges says the continued operation of the courts is unsafe and has called for them to be closed. The Trump administration in 2018 set a quota for each immigration judge to close 700 cases a year, a requirement that remains in force during the pandemic, said Ashley Tabaddor, president of the union.

‘Hobbesian Choice’

U.S. immigration judges are “being forced into this Hobbesian choice of risking their health and having to keep their jobs,” said Tabaddor. She cites a colleague who is trying to meet his quota while minimizing his health risk as a throat cancer survivor.

Along with the judges, 1,200 support staff work in the nation’s immigration courts. Those courts are taking precautionary steps similar to those elsewhere in the federal system “to reduce the likelihood of exposure to Covid-19,” including holding hearings via phone or video conference whenever possible, according to Kathryn Mattingly, a Justice Department spokeswoman. Hearings involving people not in custody have also been suspended until May 15.

But judges and lawyers said it is harder for the immigration courts to operate remotely than other federal courts. While electronic document filing is routine in other federal courts, the immigration courts have struggled to introduce it, leaving most documents in paper form. Though some filings are now accepted by email, the many court employees without laptops need to come into the office to access them.

“The immigration courts are probably 20 years behind federal courts in terms of technology,” said Jeff Chase, a former immigration judge. Moreover, some immigration courts have rules where opting for a phone hearing means giving up the right to object to documents submitted by ICE, he said.

The current situation has immigration lawyers choosing between their personal well-being and a client’s future, Chase said. “Lawyers should not be put in this position.”

. . . .

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

Read the rest of the article at the link.

Nice quotes from Judges Tabaddor and Chase!

Actually, when the “off docket”cases are factored in, the backlog exceeds 1.4 million cases. Even with artificially accelerated production, and if no new cases were filed by DHS (reality check — receipts have been exceeding completions for years) it would take until 2024 to “clear” the existing backlog. But, the reality is that even by speeding up the “Deportation Railroad,” adding new often inadequately trained judges largely from the ranks of prosecutors, eliminating Due Process, demeaning their own employees, and unethically skewing the law against migrants, EOIR has been unable to reduce the backlog by even one case under the Trump regime!

Indeed, when all of the pending and “off docket” cases are considered, the already large backlog left behind by the Obama Administration has more than doubled, and is well on its way to tripling, under the Trump regime’s “malicious incompetence” and pattern of often illegal and irrational behavior. Many of the “final orders of deportation” being cranked out by EOIR are either legally wrong or counterproductive — deporting harmless individuals who actually are productive members of our society, often with U.S. citizen family members. This system, including the mindless abuse of docket space by DHS Enforcement and “Aimless Docket Reshuffling” by EOIR, is broken! Yet, it’s allowed to continue grinding away, putting lives in danger in more ways than one.

And, speaking of incompetence, whether malicious or not, I was on the initial “E-Filing Group” that submitted comprehensive recommendations and a detailed plan for implementing e-filing to ”EOIR management” back in 2001 or 2002. Since then, successive waves of EOIR “management” have squandered time, money, and public trust without producing a usable product. Meanwhile, almost every other court in America has designed and implemented e-filing systems. This catastrophic failure in and of itself would more than justify eliminating EOIR and replacing it with a judicially-managed, independent, professionally administered court system that would guarantee due process, efficiency, and fundamental fairness for all.

But, that’s by no means the only problem at EOIR. It’s unconstitutional, unfair, dysfunctional, unprofessional, and downright dangerous. I have posted recently about how Courts of Appeals continue to find that the BIA has grossly misinterpreted, distorted, and/or misapplied both law and facts in “life or death cases.” Is “good enough for government work” really OK for human lives? That neither Congress nor the Article III Courts have had the guts and decency to put an end to this life-threatening farce staining our justice system is an unforgivable national disgrace.

Those of us who understand exactly what’s happening at EOIR under the Trump kakistocracy might at the moment be powerless to change it. But, we’re continuing to challenge the unacceptable status quo and making a public record of this grotesque malfeasance and of those in all three branches of Government who are “papering over” (and by doing so enabling) EOIR’s abuses. Eventually, positive change will come. The only question is how many lives and futures will unnecessarily be lost before it does?

Due Process Forever! Deadly ☠️ Clown Courts, 🤡 Never!

PWS

04-23-20

TRUMP’S AUTHORITY OVER IMMIGRATION HAS LIMITS — SADLY, THE “J.R. FIVE’S” WILLFUL BLINDNESS APPEARS TO HAVE NONE! — Failing Partisan High Court Threatens American Democracy! — PLUS, BONUS COVERAGE: My “Mid-Week Mini Essay”

https://www.nytimes.com/2020/04/22/opinion/trump-immigration-executive-order.html

Jennifer M. Chacon and Ervin Chemerinsky in The New York Times:

A president has broad powers over immigration under the Constitution and federal laws, but they are not unlimited. At the very least, there must be a reasonable basis for restrictions on immigration. None exists for President Trump’s threat to temporarily ban all immigrant visa admissions to the United States.

As with earlier, problematic immigration policies like the entry ban aimed at several predominantly Muslim countries, this proposal started out with a remarkably broad promise by the president: a ban on all immigration. That sweeping rhetoric has a cost of its own. Among other things, it may discourage international students from enrolling in American universities this fall, and otherwise signal “keep out” to visitors who would actually boost the economy. But beyond the rhetorical overkill, there are other problems with this ban. The actual policy proposal is much less than promised by tweet, but even in its whittled down form, it is still unlawful.

A ban on the entry of individuals who have been granted immigrant visas would not affect as many people as you might think. Although there are usually more than 180 million entries into the United States every year, most of that traffic is by people holding temporary visas. This policy would affect only those immigrants who have been authorized for permanent residency. That involves less than a million people — a number that has declined in recent years because of other entry bans, new requirements on immigrants and slow visa processing. The answer to the crushing domestic unemployment crisis caused by the coronavirus outbreak is clearly not going to be found in a ban on these immigrants.

On the other hand, the ban would cause enormous hardships for those who have been granted immigrant visas. Denial of green cards could keep parents and children and other family members from being together. Critical industries — including the overwhelmed medical industry — will lose out on vitally needed expertise just when it is needed most.

More on the Trump administration immigration policy.

Opinion | The Editorial Board

Coronavirus Doesn’t Care Where You Come From. Trump Still Does.March 31, 2020

One would think that such a draconian measure would have a strong justification. If nothing else, under the law, there has to be a legitimate basis for such an order. In upholding President Trump’s travel ban in Trump v. Hawaii, the Supreme Court stressed that it was based on a “DHS and other agencies … conduct[ing] a comprehensive evaluation” and “extensive findings.” The court found it constitutional because it served the legitimate purpose of national security.

In other words, even the court’s very deferential approach to presidential decisions concerning immigration in Trump v. Hawaii demanded that the actions be reasonable. The proposed ban on immigration cannot meet that test.

. . . .

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

Read the rest of the op-ed at the link.

WISHIN’ & HOPIN’ WON’T MAKE IT SO: THE LAW IS NO LONGER SUPREME IN AMERICA — Obviously, Trump Has Placed Himself Above It, With Little Pushback From Congress Or A Compromised Supremes

By Paul Wickham Schmidt

Courtside Exclusive

April 22, 2020

I’m not going to argue with the scholarship of two distinguished academics like Dean Chemerinsky and Professor Chacón in today’s NY Times. https://www.nytimes.com/2020/04/22/opinion/trump-immigration-executive-order.html

But, I take issue with their characterization of Trump v. Hawaii, the so-called “Travel Ban Case,” as requiring a “reasonable justification” for Executive action in the area of immigration.

That’s what the rule should be; but, it isn’t. And, that’s unlikely to change as long as the “J.R. Five” rule the Supremes.

Even some of their “Brethren,” on the left side of the Court but the right side of history, gamely but vainly plugging away for our Constitution and some intellectual honesty from their righty colleagues, are struggling to process the obvious tilt taking place on what should be a “level plaything field.”

On the record in Hawaii, there was nothing approaching “reasonable” about the bogus “national security” grounds for the ban. The record made it clear that the real reason was invidious discrimination against Muslims to fulfill a vile White Nationalist driven campaign promise.

Almost every lower Federal Court to consider the issue realized and articulated this obvious controlling fact. It wasn’t “rocket science.” Just the courage, integrity, and decency to speak truth to power — what life tenure is supposed to be all about.

The “national security” ground was pure pretext that contravened the consensus of the Government’s own internal professional experts, as shown by the record. The “after the fact,” obviously contrived “letter” from Sessions and Kelly asking the President to act was as phony as a three-dollar bill. Indeed, the idea that either of these hacks was acting out of some genuine expertise and legitimate concern for the national security rather than just following “orders from on high” (Sessions also out of a lifelong embrace of racism and xenophobia) is preposterous.

The real message of Hawaii is that Trump can throw up any old fabricated or fraudulent rationale for xenophobia, racism, and religious bigotry designed purely for improper political purposes and the GOP Supremes’ majority will happily look the other way.

That’s apparently because the ideologues who control the Supremes truly believe the GOP far right dogma that some people are more equal than others and that only the rich and powerful truly deserve the protections of the law. That’s why corporations, guns, and Trump generally win before today’s Supremes while voters, African Americans, Hispanics, Democrats, immigrants, and unions generally lose. And, Trump “got” the “encouraging permissive message” of the “J.R. Five” (with Kavanaugh now substituting for Kennedy) loud and clear. He’s acted accordingly.

Trump is no legal scholar. But, he has spent a career using the courts as a battering ram to smash the rule of law to smithereens. This allows him to punish his enemies, reward his cronies, line his pockets, welch on his debts, stiff his creditors, and otherwise lie, cheat, and steal all the while escaping both legal and moral accountability.

If there is one thing that he can smell a mile away, it’s a toady judge. And, in Roberts, Thomas, Alito, Gorsuch, & Kavanaugh, the stench of cowardly complicity with tyranny is overwhelming.

To borrow from one of yesterday’s Courtside posts, the Constitution now appears to be essentially the “Maginot Line” of our democracy. https://immigrationcourtside.com/2020/04/21/failed-state-americas-clown-prince-%f0%9f%a4%a1-more-like-infamous-marshal-petain-than-leader-ofthe-free-world-but-the-leader-he-brings-to-mind-is/

Trump and his “Blitzkrieg” have simply outflanked and overwhelmed it. They have pushed decades of refugee, asylum, human rights, and immigration laws into a “mass grave” without any Congressional approval and, when expedient, have just ignored or directly contravened the clear intent of Congress. Any judge worth his or her salt would see this as an obvious existential assault on our Constitution and our fundamental values and act accordingly. But, not this Supremes’ majority. Certainly, the “J.R. Five” would have been right at home serving Henri Petain and the Vichy regime.

The “J.R. Five” employs all sorts of obtuse legal jargon and gobbledygook to cover up their immorality and intellectual dishonesty. It would be a mistake, however, to expect them to stand up for the Constitution, the rule of law, and human decency where immigration policy is concerned.

Expect them instead to buy Trump’s bogus public safety and economic emergency rationales hook, line, and sinker. Heck, this might even be a great opportunity for them to intervene at the U.S. District Court level to facilitate the abuse, further demoralize District Court Judges, reinforce xenophobia, suck up to Trump, and do away with nationwide injunctions except where the regime requests them. The lives of the vulnerable are dispensable to this group of privileged ivory tower jurists.

Trump and the GOP can eventually be voted out of power. But, the problems of a Supremes’ majority that has life-tenure and has lost its way, legally, intellectually, and morally, will be with us for the indefinite future.

Until that’s changed, expecting help from the Supremes in protecting democracy from tyranny is like expecting honesty, reasonableness, and leadership from Trump. Not likely!

Academic analyses, no matter how brilliant or cogent, that fail to account for the partisan bias and political realities at work at the Supremes’ today won’t help us much in predicting the bleak future of the rule of law and individual rights in America if change and reform doesn’t come to all levels of our Federal Judiciary. Sadly, what’s happening today has little to do with what we all learned in law school.

We need to be prepared to meet and deal with today’s reality, no matter how unpalatable it might be. More important, once we retake control of our country and our destiny, we need vastly improved Federal Judges at all levels, particularly the Supremes. The “J.R. Five” are the anthesis of what we should be seeking and demanding in a future, better Federal Judiciary. Never again!

Due Process Forever! Complicit Courts Never!

PWS

04-22-20

JIM CROW WINS, AMERICA LOSES, AGAIN — WHITE NATIONALIST CLOWN-IN-CHIEF 🤡 HALTS IMMIGRATION TO DIVERT ATTENTION FROM MASSIVE FAILURE OF GOVERNANCE, AS FECKLESS DEMS PROTEST! — Announced By Tweet At Time When Borders Closed Anyway — A “pathetic attempt to shift blame from his Visible Incompetence to an Invisible Enemy,” Says Sen. Tim Kaine (D-VA) 😰👎🏻

By Paul Wickham Schmidt

Courtside Exclusive

April 21, 2020. Migrants didn’t bring coronavirus to the U.S. Inevitable as its arrival was, U.S. travelers returning from abroad hastened the infection. The Trump regime ignored advanced warnings, wasted time, failed to prepare, and intentionally misled the public into believing that the problem was minor and under control. As we know, it was neither. No wonder the “Chief Clown” needs to shift attention to “the usual suspects.”

Rather than being a threat, courageous, talented, hard-working migrants of all types have been at the forefront of our battle against coronavirus. They put their own lives at risk to provide health care, medical research, food, sanitation, delivery, stocking, transportation, cleaning, technology, and other essential services. Their reward from Trump, Miller, and the other regime racists: to be scapegoated and further dehumanized by those whose “malicious incompetence” actually threatens the health and safety of all Americans.

Nobody knows what the U.S. economy will look like post-COVID-19. But, we can be sure that migrants will play a key role in our future. And, of course, permanent legal immigrants are carefully screened and required to undergo health examination before being admitted.

Meanwhile, Democrats complain, but show show no sign of actually using their leverage to halt the regime’s invidious assault on migrants. They weren’t even to get all taxpaying immigrant families included in the initial stimulus payments nor have they been able to require immigration authorities to comply with best health practices for detained migrants. Nor does it look like the needs of migrants will be addressed by the latest proposed legislation, although exact details are still pending. So, their bluster is just that —bluster.

Undoubtedly, the brave lawyers of the New Due Process Army will mount legal challenges to this latest assault on the rule of law. While some challenges might succeed in the lower Federal Courts, to date the “J.R. Five” on the Supremes have shown no inclination to look critically at any of the regime’s many misuses and abuses of so-called “emergency” and “national security” rationales, even when they are transparently bogus “pretexts” for xenophobia, religious bigotry, and racism.

Perhaps it’s largely a moot point right now. Market forces affect immigration. With worldwide travel restrictions, borders closed, and 22 million out of work in the U.S., the allure of migration to the U.S. should be sharply reduced.

The Trump regime’s open hostility to immigrants plus our chaotic response to COVID-19, perhaps the world’s worst overall at this point, might make the U.S. a less attractive place for future immigration, particularly for legal migrants who have other choices. Demand for migration is normally a sign of economic and social health. As America fades into disorder under the kakistocracy, so might our ability to attract migrants, particularly those we claim to prize.

According to James Hohmann at the Washington Post, senior officials at the DHS were surprised by Trump’s late night tweet announcing the impending action. As Hohmann noted, that’s an indication of the deep thought, analysis, and preparation that went into this action. Trump has normalized incompetence and dumb decisions made based on a racist political agenda to the point where they barley cause a ripple in our distorted national discussion anymore. I’d say it was like being “goverened” by a five-year-old, but that would be a supreme insult to most five-year-olds I know.

While the “Chief Clown” can’t move fast enough to reopen the economy, even in the face of solid evidence that the it’s premature in most areas, don’t expect the bogus “immigration emergency” to end as long as this regime is in power. Crisis becomes yet another opportunity for the “worst of the worst among us” — the kakistocracy — to act on their biases and prejudices and get away with it.

Here’s a report from Rebecca Shabad @ NBC News:

https://www.nbcnews.com/politics/congress/xenophobe-chief-democrats-blast-trump-s-plan-suspend-immigration-u-n1188551

WASHINGTON — Congressional Democrats slammed President Donald Trump after he announced that he plans to suspend immigration to the United States, arguing that such a move does nothing to protect Americans from the coronavirus and deflects attention away from his handling of the outbreak.

House Democratic Caucus Chairman Hakeem Jeffries, D-N.Y., tweeted that Trump is the “xenophobe. In. chief.”

“This action is not only an attempt to divert attention away from Trump’s failure to stop the spread of the coronavirus and save lives, but an authoritarian-like move to take advantage of a crisis and advance his anti-immigrant agenda. We must come together to reject his division,” tweeted Rep. Joaquin Castro, D-Texas, chairman of the Congressional Hispanic Caucus.

Shortly after 10 p.m. ET on Monday, Trump announced in a tweet, “In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!”

There were no additional details. A senior administration official said Trump could sign the executive order as early as this week.

The tweet came as the death toll in the U.S. from COVID-19 topped 42,000 people, according to Johns Hopkins’ Coronavirus Resource Center.

Sen. Tim Kaine, D-Va., Democrats’ 2016 vice presidential nominee, called it a “pathetic attempt to shift blame from his Visible Incompetence to an Invisible Enemy.”

. . . .

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

Read Rebecca’s full article at the link.

Due Process Forever. The White Nationalist Kakistocracy Never!

PWS

04-21-20

THANK UW LAW: Unemployment Insurance Was The Brainchild of Two Amazing UW Law Students Who Were Also In Love — It All Began In L-1 Torts! — PLUS: The “Wisconsin Idea” Continues Today Through The Work of Professor Erin Barbato!

https://www.washingtonpost.com/history/2020/04/18/unemployment-checks-great-depression-coronavirus/h

Michael S. Rosenwald writes in the WashPost:

A line to apply for unemployment benefits in San Francisco in 1938. (Library of Congress)

They first laid eyes on each other in torts class.

It was 1923, a period of prosperity before the Great Depression.

He was the son of Walter Rauschenbusch, a prominent theologian and key figure in the Social Gospel movement. She was the daughter of Louis Brandeis, the progressive Supreme Court justice and the most famous Jew in America. Each inherited their parents’ zeal for social justice.

At the University of Wisconsin Law School, these two idealists — Elizabeth Brandeis and Paul Raushenbush — noticed each other immediately. She was brainy and shy, her hair long and dark. He was handsome and outgoing. On hikes and canoe outings, they fell in love romantically and intellectually — a partnership instrumental in passing the nation’s first unemployment compensation law.

The story of how they did it is largely forgotten, but the 22 million people who have applied for unemployment during the coronavirus pandemic — and, of course, the millions before them — have this unlikely couple to thank. The law they conceived of and helped pass in Wisconsin laid the foundation for unemployment insurance throughout the country.

“Their story is absolutely staggering to think about right now,” said their grandson Paul Brandeis Raushenbush, a Baptist minister and senior adviser for public affairs and innovation at Interfaith Youth Core, a nonprofit organization. “It was their life’s work to make laws like this available to everyone.”

Raushenbush, who lives in New York, has spent the last few years writing a history of his family, including interviewing his father, Walter, who is 92 and lives in McLean, Va. Raushenbush was working on the unemployment insurance section as the coronavirus pandemic arrived in America.

Elizabeth Brandeis Raushenbush and Paul Raushenbush. (Courtesy of Paul Brandeis Raushenbush)

As part of his research, Raushenbush has been reading a privately published book his grandparents wrote based on interviews they gave to a Columbia University oral history project. The book is the story of the legislation — where the idea came from, the characters involved, how the law was ultimately passed.

“It really reads like a novel,” Raushenbush said.

The main characters, of course, are his grandparents.

And Wisconsin.

His grandmother moved there to attend law school. She had lost her job as a researcher for the D.C. Minimum Wage Board following the Supreme Court’s ruling that the minimum wage for women was unconstitutional. Justice Brandeis, who as a lawyer and jurist was renowned for his progressive stance on social issues, did not cast a vote because of his daughter’s job.

E.B., as she was known to family and friends, wanted a career at the intersection of economics, labor and the law. She hoped to attend an elite East Coast law school, but those programs, including Harvard, where her father studied, didn’t accept women. With her father’s approval, she chose the University of Wisconsin, where the “Wisconsin Idea” — fusing academic research to solving social problems — was flourishing.

“I have no doubt that the Wisconsin Law School is good enough for your purposes,” E.B.’s father wrote to her, “and should think it probable that you would find economics instruction, and doubtless, other considerations more sympathetic there than at Yale.”

Her future husband chose Wisconsin for the same reason. There, the couple studied under professor John R. Commons, an influential social economist who crafted Wisconsin’s workers’ compensation law. Commons tried and failed several times to pass legislation protecting unemployed workers, whose numbers were soaring, especially after the stock market crash in 1929.

Paul Raushenbush signing the paperwork for the first unemployment compensation check in 1936. (Courtesy of Paul Brandeis Raushenbush)

Commons took a particular interest in his graduate students, inviting them for regular dinners on Friday nights to discuss societal problems.

“I suppose the characteristic thing about Commons was that he was trying to use his brains and enlist the brains of his students in attempting solutions of economic problems,” Raushenbush said during the Columbia University oral history interviews. “This was no ivory tower guy. Sure, he did research and wrote books, but perhaps the main interest that attracted his students was that they were being invited to participate in an attempt to deal with difficult problems on an intelligent basis.”

By 1930, E.B. and her husband both were teaching economics at the University of Wisconsin. They had become friends with Philip La Follette, the local district attorney, whose parents were friends with Justice Brandeis. One day in June, La Follette invited the couple, along with another Wisconsin economist, Harold Groves, to his house in Madison.

La Follette told them he planned to run for governor, that he planned to win, and that he wanted to pass legislation instituting unemployment compensation. He asked the trio to come up with a plan.

And did they ever.

They spent the weekend hiking along the Wisconsin River batting around ideas. Their key idea — one that survives today — was that the benefits should be funded entirely by employers, thus giving them the incentive to maintain steady levels of employment or bear the cost of not doing so. The economists also decided that Groves, who grew up on a Wisconsin farm, should run for the State Assembly and introduce the legislation.

Everything clicked.

In 1932, Wisconsin Gov. Philip La Follette signs the nation’s first unemployment measure into law. Elizabeth Brandeis Raushenbush and Paul Raushenbush are second and third from the left. (Courtesy of Paul Brandeis Raushenbush)

The first unemployment check issued in Wisconsin. (Wisconsin Historical Society)

. . . .

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

Read the rest of the article in the WashPost at the link.

Scholarship, teamwork, creativity, hard work, and a healthy dose of romance produces results that are still “making a difference” today. Nice story! Beyond that, it’s an inspiring story for today’s world.

What if we had more folks like the Raushenbusches in government today? Folks looking for ways in which government could work to make the lives or ordinary working people better. Compare that with the “Trump Kakistocracy,” a bunch of self-centered incompetents mostly out to disable government, screw working folks, line their own pockets, glorify and suck up to their “Supreme Leader-Clown,” and shift blame for their mess, all while attempting to advance a destructive far-right political agenda that cares not for the public good! Then we had folks like Phil La Follette; now we have Stephen Miller!

Professor Walter Brandeis Raushenbusch, the son of Elizabeth & Paul, was on the faculty of U.W. Law when I was there from 1970-73. However, I never had him for a class. We did study the “LaFollette Era” and its contributions to President Roosevelt’s “New Deal” in several of my classes.

I believe that U.W. Law gave me a strong grounding in teamwork with my colleagues (now retired Wisconsin State Judge Thomas S. Lister was one), how to apply scholarship to achieve practical results, and solving complex problems.

Speaking with Judge Lister earlier this year during a “pre-lockdown” visit with his wife Sally to D.C., I could see how our time together at U.W. Law had a continuing profound influence on both of our careers, particularly the “judicial phases.” In our different ways, we were always striving to establish “best practices,” promote “good government,” and make the “system work better” for the public it served. Just like some of the “progressive ideas” that were interwoven with our legal education in Madison. “Teaching from the bench” was how I always thought of it. Sometimes we succeeded, other times not so much; but we were always “in there pitching,” even up to today. See, e.g., the “Lister-Schmidt Proposal” for an Auxiliary Judiciary for the U.S. Immigration Courts here: https://immigrationcourtside.com/2019/08/19/an-open-letter-proposal-from-two-uw-law-73-retired-judges-weve-spent-90-collective-years-working-to-improve-the-quality-delivery-of-justice-in-america/. We haven’t given up on this one!

Hon. Thomas Lister
Retired Jackson County (WI) Circuit Judge

And, the “Wisconsin Idea” is still alive and thriving at U.W. Law, thanks to dedicated professors like my good friend and fellow warrior for the “New Due Process Army,” Professor Erin Barbato, Director of the U.W. Immigrant Justice Clinic. Erin uses creative scholarship, teaches practical, usable, courtroom and counseling skills, promotes teamwork, and saves “real lives” in her work with asylum seekers and other migrants. She is also a role model who is inspiring a new generation of American lawyers committed to advancing social justice and guaranteeing Due Process and fundamental fairness for all. Indeed, Erin was a guest lecturer at my Georgetown Law class and inspired my students with her courage, energy, and real life examples of “applying law to save lives!” It really made the “textbook come alive” for my students! Thanks for all you do, Erin!

Professor Erin Barbato
Director, Immigrant Justice Clinic
UW Law

On Wisconsin!

Due Process Forever!

PWS

04-19-20

CATHERINE RAMPELL @ WASHPOST: “Dreamers” Are In The Front Lines Of Essential Workers — Why Is The Regime Persecuting Them?

https://www.washingtonpost.com/opinions/the-dreamers-are-an-essential-part-of-our-covid-19-response/2020/04/16/9514d2e0-8022-11ea-9040-68981f488eed_story.html

Catherine writes:

NEW YORK — Dr. P. has to be reminded to take breaks during her 12-hour emergency-room shifts — to drink water so she doesn’t get dehydrated; to go to the bathroom; even just to breathe for a few minutes alone, unencumbered by layers of sweaty, suffocating personal protective equipment.

It can be hard to remember to pause because there’s too much to do. Too many patients, everywhere, wheezing and gasping for air. Even before the ER was overwhelmed, she had been reluctant to step away. In mid-March, as patients were surging into emergency departments, she requested to cancel some scheduled time off.

“I asked to keep working, rather than just sit at home and do nothing,” she said. “It’s a helpless feeling sitting at home, knowing that things are getting worse at the hospital.”

But if the Supreme Court lets the Trump administration have its way, she might have to stop her lifesaving work, permanently.

[[Full coverage of the coronavirus pandemic]]

P. is a “dreamer,” one of the 825,000 unauthorized immigrants brought to the United States as children who have received protection under the Deferred Action for Childhood Arrivals program. (I’m using only her last initial because she fears attracting attention to her family, which is still undocumented.)

DACA, created by the Obama administration in 2012, shields these young immigrants from deportation and allows them to work. An estimated 29,000 are health-care workers like P. and on the front lines of the coronavirus pandemic.

After the Trump administration announced in 2017 that it planned to terminate the program, one of the more prescient outcries came from the medical community. In a Supreme Court filing, a consortium of medical colleges and aligned groups warned that the industry depends heavily on not just immigrant workers but specifically on DACA recipients, and that ending DACA would weaken the country’s ability to respond to the next pandemic.

[[Sign up for our Coronavirus Updates newsletter to track the outbreak. All stories linked in the newsletter are free to access.]]

For now, those who had DACA protections before the legal battles began are able to continue renewing them while the courts deliberate. For people such as P. — and the patients who rely on her care — this has been a godsend, if an imperfect one given her career choice.

The education and training required to become a doctor are an exceptionally long undertaking, and DACA offers only two years of protections before renewal is required (though it was never guaranteed). There was always a chance she might not be able to actually practice medicine after years of schooling and taking on hundreds of thousands of dollars in student debt.

Still, P. committed herself to finding a way to become a doctor. She applied for and received DACA status, completed college (in three years, to save money) and persuaded a highly ranked medical school to give its first-ever slot to a dreamer.

She’s in her first year of residency in emergency medicine. Each day, after she takes off her protective gear and attempts to wash off both “the virus and the fear,” she goes home and worries about whether she will be allowed to complete her residency. Losing DACA would mean losing her ability to repay her loans, treat desperate patients, even stay in the only country she has ever known. She’s been here since age 2.

She’s on edge, waiting for the Supreme Court to decide whether the way the Trump administration ended DACA was lawful. Tremendous uncertainty surrounds the range of possible outcomes, from no changes at all to every DACA recipient losing protections immediately. In oral arguments last fall, Chief Justice John G. Roberts Jr. suggested terminating DACA would result in dreamers losing their work authorization but that deportation was not at issue; Trump administration officials have since made clear they are, in fact, reopening removal proceedings.

. . . .

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

Read the forested of Catherine’s article at the link.

The lower Federal Courts unanimously did the right thing here by protecting the Dreamers from irrational Executive overreach based on an invidious racially-tainted White Nationalist agenda and a transparently bogus legal rationale. There was no reason for the Supremes to even take the case. Dismissing the Government’s poorly reasoned, bad faith case against the Dreamers should be a “no brainer” for the Supremes. The lower court decisions provide numerous solid reasons for doing so.

Nevertheless, to date, J.R. and his GOP colleagues have yet to find a White Nationalist immigration policy by the Trump regime that they didn’t “greenlight.” If, as expected, they do it again here, the results for both America and the Dreamers will be horrendous.

Due Process Forever!

PWS

04-17-20

IDIOCY WATCH: “Clown Courts’” 🤡🤡🤡 Refusal To Follow COVID-19 Guidelines Is Top Headline In Today’s National Law Journal — “Congress should not have believed to have adopted … a suicide pact or a death trap.”☠️⚰️😰🆘😉

Jacqueline Thomsen
Courts Reporter
National Law Journal

DOJ Said Judges Can’t Stop Immigration Hearings Over COVID-19. Cleary Gottlieb Called That a ‘Death Trap.’

Immigration lawyers and detained immigrants want U.S. District Judge Carl Nichols to temporarily stop all in-person immigration proceedings during the COVID-19 pandemic.

By Jacqueline Thomsen | April 15, 2020 at 06:35 PM

Justice Department attorneys told a federal judge in Washington, D.C., on Wednesday that he lacks the authority to temporarily halt in-person court proceedings for detained immigrants during the COVID-19 pandemic.

. . . .

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

Those will full access can go over to the NLJ for Jacqueline’s complete article.

With DOJ lawyers arguing that folks have to “exhaust their administrative remedies” (basically by risking death or serious illness) you get the general tenor of the argument before U.S. District Judge Carl Nichols in D.C.

I’d be tempted to say that during the pandemic ethical rules have been suspended for DOJ attorneys. But, in my view, that was true even before the pandemic.

And, in their defense, some of their misleading narratives and insane arguments actually WIN in Federal Court, as some Federal Judges are used to deferring to the DOJ and giving their lawyers a pass on both ethical rules and acceptable arguments that generally wouldn’t be extended to private attorneys acting in the same irresponsible manner.

What would be an acceptable response in a better functioning, ethics-biased DOJ: for the lawyers to go back to their “agency clients,” tell them that they won’t defend the indefensible, and advise them to start working immediately with the plaintiffs to develop methods for hearing only the most pressing cases under appropriate health safeguards.

Interestingly, the positions argued by DOJ lawyers are actually putting the lives of their colleagues at EOIR and their fellow Government attorneys at ICE at risk! Perhaps if they “win,” they should be given a chance to risk their lives to represent ICE in Immigration Court! Wonder how their nifty little “exhaustion arguments” would help them ward off the virus.

With 1.4 million cases already in the backlog, it’s not like any one removal more or less during the pandemic is going to make much of a difference. Unlike, perhaps, some other courts built with sufficient space and electronic support, the poorly designed “brandbox” Immigration Courts with marginal, at best, technology, are unhealthy in the best of times. Certainly, it’s difficult to imagine that there are very many cases other than perhaps bonds or stipulated “grant and release” cases that need to go forward right now.

How many lawyers (on both sides) and Immigration Judges are going to have to die before the Article IIIs finally take notice and put the brakes on the nonsense going on at EOIR?☠️⚰️☠️⚰️☠️⚰️

Due Process Forever. Clown Courts Never!🤡

PWS

04-16-20

CLOWN-IN-CHIEF’S ATTEMPTS TO SHIFT BLAME & ATTENTION FROM HIS OWN ABSURDIST SPECTACLE MAKE A BAD SITUATION MUCH WORSE! — The WHO’s Flawed Response to COVID-19 Was Still Better Than His! — “Captain Clown” “propounds powerful gibberish, [as] the mutiny builds.” 🤡☠️⚰️🤡☠️⚰️🆘

Trump Clown — Donald J. Trump
Clown in Chief

https://www.washingtonpost.com/opinions/2020/04/15/trumps-ugly-new-blame-shifting-scam-spotlights-his-own-failures/

Greg Sargent writes in the WashPost:

President Trump is spinning his new decision to suspend funding to the World Health Organization as an act of decisive leadership — one that showcases his devotion to effective crisis management, to gathering good empirical information, and to holding people accountable for leadership failures that had catastrophic human consequences.

In just about every conceivable way, this is the opposite of the truth.

In making this new move, Trump is inviting us to review the basic timeline of events. And it demonstrates that the WHO, for all its initial failures, was still far ahead of Trump in embracing the need for a comprehensive response to coronavirus.

The timeline also once again illustrates Trump’s epic failures in that regard, and reveals the degree to which Trump is now relying on transparently ridiculous scapegoating to erase his own central role in this catastrophe.

[Full coverage of the coronavirus pandemic]

In announcing an end to funding for the WHO, Trump claimed the organization was complicit in China’s early coverup of the outbreak’s severity there. He insisted the WHO “pushed China’s misinformation,” and ripped WHO for “severely mismanaging and covering up the spread.”

Trump also claimed that if not for WHO, “the outbreak could have been contained at its source with very little death.” He lamented that the U.S. can’t rely on WHO for “accurate, timely and independent information to make important public health recommendations and decisions.”

For Trump to position himself in this manner as a spokesperson for crisis management, empiricism and accountability would be positively comical, if the stakes weren’t so monumentally dangerous.

The WHO’s initial mistakes were real, and many critics beyond Trump have pointed to them. The organization was too trusting of China’s early obfuscations about coronavirus, and failed to aggressively push China to be more transparent. The WHO also arguably was too slow to declare a global public health emergency.

But cutting off funding as a punishment is counterproductive and deeply absurd. Indeed, even if you accept that the WHO committed serious errors, the timeline is still far more damning to Trump, by the terms that he himself has set through his criticism of the organization.

The timeline is far more damning to Trump

By Jan. 23, the WHO was already warning that coronavirus could “appear in any country,” and urged all countries to be “prepared for containment” and get ready to exercise “isolation” and “prevention” measures against its spread.

At around the same time, on Jan. 22, Trump was asked point-blank whether he worried about coronavirus’s spread, and he answered: “No, not at all,” insisting it was just “one person coming from China” and that “we have it totally under control.”

And on Jan. 24, Trump hailed China’s “effort” against coronavirus and its “transparency” about it, predicting that “it will all work out well.”

So Trump showed less concern about its spread in countries outside China — including in our own — than the WHO did.

On Jan. 30, the WHO declared coronavirus a global public health emergency. While WHO was still too credulous toward China’s response, WHO also warned that all countries must review “preparedness plans” and take seriously what was coming.

By contrast, on Jan. 30, Trump was directly warned by his Health and Human Services secretary of the threat coronavirus posed. Trump dismissed this as “alarmist.”

And on Feb. 2, Trump boasted to Sean Hannity: “We pretty much shut it down, coming in from China.” He hailed our “tremendous relationship” with that country. Trump continued praising China’s handling of coronavirus all through the entire month of February.

So at the very least, Trump showed precisely the same credulity about China that Trump is now faulting the WHO for showing, but without appreciating the urgency of the international threat coronavirus posed to the degree that the WHO did.

As MSNBC’s Ari Melber aptly put it, these attacks on the WHO are “only calling attention to the fact that the WHO was ahead of President Trump.”

. . . .

Trump is attacking the WHO right now so we’ll talk about the WHO’s shortcomings, and not his own role in this catastrophe. But this blame-shifting utter nonsense, and no one should grant it the slightest shred of credibility.

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

Greg Sargent
Opinion Writer
Washington Post

At the link, read Greg’s complete article which also dismembers Trump’s bogus claim that his “Chinese travel ban” had a major impact on deterring the spread of the pandemic.

So, here’s what really appears to be happening as America’s national government disintegrates under Trump’s malicious incompetence. America is breaking up into a number of “Regional Federated States” which have banded together for mutual assistance under decisive governors, largely, but not exclusively Democrats. We already have one on the West Coast and one in the Northeast. I’d look for the governors of Virginia and Maryland and the Mayor of DC to perhaps form a “DMV Region” to manage the pandemic and the recovery.

That covers about 1/3 of the U.S. population and much of the economic and tax base. The rest of the states will have to limp along as best they can with governors largely in charge and trying to get as much help as they can from the sinking Federal ship by going around Trump and dealing with Pence, Fauci, and Birx. Everyone also counts on some help from the Fed, which isn’t immune from Trump’s blustering nonsensical attacks, but is largely beyond his control and therefore free of his blundering ineptness.

There’s likely to be very bad news for the health and safety of those in states whose GOP governors have proved to be as inept and willfully blind as Trump and the rest of his kakistocracy. South Dakota is a prime example of what happens under a clueless GOP Governor.

Notably, most of the initial victims in South Dakota were Latinos working in the supposedly “essential” meat packing industry under conditions that clearly violated best health practices. The Governor claims that the plant would have remained open even under a “Stay at Home” order. Now, however, workers are sick and all those plants are closed anyway. The worst possible result. So, we’ll see how “essential” they really were. Perhaps if everybody had stayed home, the disease wouldn’t have spread and the plants could have reopened on a more limited basis with proper social distancing and protective equipment. And, if workers are really “essential,” why aren’t we looking out for their health, safety, and income protection?

Internationally, world leaders have long ago learned that Trump is incapable of leadership and that under him the U.S. is no longer a trustworthy or reliable partner. Nothing in Trump’s inept handling of the Pandemic in the U.S., his pathetic attempts to shift the blame elsewhere, and his incredibly stupid decision to stop funding the WHO would convince them otherwise.

Sure, like the drunken bully/oaf in the bar, the “Trumped-up U.S.” throws its weight around in unpredictable ways and is too big to be ignored or easily removed from the premises. So, world leaders have figured out how to move on without the U.S. and hope to largely avoid the irrational acts of petty vengeance and retribution for which he is famous.

Not a pretty picture. But, it will be even worse if we don’t remove Trump and the GOP from power in November.

Dana Milbank had a “spot on” assessment of “Captain Clown” 🤡 in today’s Post:

. . . .

Like Bligh, he is abusive. Unlike Bligh, he is a poor navigator. The Trump-as-errant-captain theme has been explored, delightfully, by novelist Dave Eggers in his recent allegory, “The Captain and the Glory”:

“He nudged the wheel a bit left, and the entire ship listed leftward, which was both frightening and thrilling. He turned the wheel to the right, and the totality of the ship, and its uncountable passengers and their possessions, all were sent rightward. In the cafeteria, where the passengers were eating lunch, a thousand plates and glasses shattered. An elderly man was thrown from his chair, struck his head on the dessert cart and died later that night. High above, the Captain was elated by the riveting drama caused by the surprises of his steering.”

So it is with our captain, who claims absolute authority but takes no responsibility. He announces he’s cutting off funding to the World Health Organization in the middle of the pandemic. He condemns the WHO for praising China’s transparency, even though he said in January he “greatly appreciates [China’s] efforts and transparency.” His conflicting messages about reopening the economy throw the country into confusion. He assembles so many coronavirus task forces that he will need another to keep track of them all. And after his long delayed and botched virus response, even now the number of tests in U.S. commercial labs is falling.

At Wednesday evening’s session, Trump turned the tiller randomly. After proclaiming the United States has “passed the peak” of the virus, he swerved into complaints about “partisan obstruction” holding up his nominees and threatened the never-before-tested “constitutional authority to adjourn both houses of Congress,” which would provoke another crisis in the middle of the pandemic.

He veered into complaints about the “disgusting”Voice of Americaand the “impeachment hoax.”He lurched into attacks on the World Trade Organization , various Democrats and governors generally, asserting that “we have the right to do whatever we want.”He accused the WHO of a conspiracy to hide the virusand boasted about his name going on government-issued relief checks: “People will be very happy to get a big fat beautiful check, and my name is on it.”

The ship has become accustomed to such unpredictable steering: He touts a virus treatment that so far shows more alarming side effects than efficacy. He announces virus-testing schemes that don’t exist. He talks about pardoning Joe Exotic. He blames everybody except his own administration, which is doing things very, very strongly and powerfully. “The Defense Production Act was used very powerfully, more powerfully than anybody would know, in fact, so powerfully that, for the most part, we didn’t have to officially take it out,” he proclaims.

[[The Opinions section is looking for stories of how the coronavirus has affected people of all walks of life. Write to us.]]

As the captain propounds powerful gibberish, the mutiny builds. Regional blocs make their own pandemic-recovery plans. Allies condemn his assault on the WHO. Republican Sen. Susan Collins (Maine) tells Politico that Trump has been “very uneven.” Even Trump-friendly outlets such as Fox News and the Wall Street Journal editorial page offer some criticism.

“WSJ is Fake News!” shouts the captain.

“What the hell is happening to @FoxNews?”

What’s happening, captain, is you’ve hit the rocks.

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

Dana Milbank
Opinion Columnist
Washington Post

Read Dana’s full op-ed here:

https://www.washingtonpost.com/opinions/captain-trump-hits-the-rocks/2020/04/15/e7643c32-7f57-11ea-9040-68981f488eed_story.html

End the Clown Show! 🤡🤡 This November, vote like your life depends on it! Because it does!

PWS

04-17-20

BIA DENIES DUE PROCESS TO VISA PETITIONER, SAYS 9TH CIR. — Zerezghi v. USCIS

Dan Kowalski over at LexisNexis Immigration Community forwards this report:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca9-on-due-process-standard-of-proof-zerezghi-v-uscis

CA9 on Due Process, Standard of Proof: Zerezghi v. USCIS

Zerezghi v. USCIS

“We hold that the BIA violated due process by relying on undisclosed evidence that Zerezghi and Meskel did not have an opportunity to rebut. In making its initial determination of marriage fraud, the BIA also violated due process by applying too low a standard of proof. On remand, it must establish marriage fraud by at least a preponderance of the evidence before it can deny any subsequent immigration petition based on such a finding.”

[Hats way off to Robert Pauw!]

Robert Pauw
Founding Partner
Gibbs, Houston & Pauw
Seattle, WA

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

How totally perverse has the EOIR system become?

Well, the BIA’s sole function is to insure Due Process for individuals and to apply top-flight expertise and scholarship to keep the Immigration Courts, ICE, CBP, and USCIS in line and following the law and best practices.

Instead, the BIA has become a corner-cutting, sloppy, “rubber stamp” on DHS Enforcement and USCIS “enforcement wannabes.” Remember, early on, the Trump regime made it clear that service to the public, i.e., immigrants, their families, and their communities, was no longer “part of the mission” at USCIS. Instead, the mission is to help ICE & CBP institute politically-driven White Nationalist xenophobic enforcement initiatives.

USCIS was created as a separate agency under DHS specifically to allow service to the immigrant community to flourish without the subservience to law enforcement often present and institutionalized at the “Legacy INS.” However, this regime and its toadies in DHS “Management” have seen fit to recreate the very same conflicts of interest and enforcement dominance that USCIS was created to overcome. In most ways, things are far worse than they ever were at the “Legacy INS.” And, let’s remember that USCIS is funded largely by user fees collected from the public on the now largely fictional rationale that they are getting valuable and professionalized services. What a complete mess and abuse of public funding!

Moreover, given the BIA’s lousy performance, rather than assisting the Article III Courts, it now all too often falls to the Article IIIs to keep the BIA in line and do its job for it. But, given the wide disparity in interest levels, expertise, and integrity among the Article IIIs, the results have been spotty.

Some Article III Judges step up and do the job; others sweep the chronic problems under the table and look the other way as rights are trampled and service to the public mocked. And, no Article III to date has been courageous and scholarly enough to take on the real problem: the glaring unconstitutionality under the Due Process Clause of a so-called “court” controlled, staffed, and evaluated by a highly biased prosecutor empowered to reverse individual case outcomes that don’t match his political agenda!

A glimpse of future horrors to come: Emboldened by Article III complicity, and egged on by the White Nationalist nativists, EOIR now outrageously proposes to charge astronomically higher fees for its shabby, biased, and ever deteriorating “work product.” This is a transparent attempt to further restrict access to justice for the most vulnerable among us. Another clear denial of Due Process!

Yes, Congress is responsible. Yes, Congress is largely in failure. But, that doesn’t absolve the Article IIIs of their duty to the Constitution, the rule of law, and human decency. Will they finally wake up, act with some courage, and do their jobs? Or, will they engage in further “judicial task avoidance” until it’s too late for all of us?

Due Process Forever!

PWS

04-16-20

TIME TO RECOGNIZE THE TRUTH: UNDOCUMENTED RESIDENTS ARE KEY TO OUR SOCIETY, OUR RECOVERY, & OUR FUTURE — They Must Be Included In Coronavirus Relief, Says León Krauze @ WashPost: “Undocumented immigrants are productive members of society who deserve all the care afforded to others.“

Leon Krauze
Journalist, Author, Educator

https://www.washingtonpost.com/opinions/2020/04/13/undocumented-immigrants-essential-us-economy-deserve-federal-help-too/

Krauze writes in the WashPost:

The novel coronavirus has been particularly harsh on immigrants. After facing years of harassment and persecution from the Trump administration, the 11 million undocumented immigrants living in the United States have now been left unprotected, unable to receive aid from the government’s historic stimulus package, even though they pay billions of dollars in taxes every year

Local and state officials, especially those in immigrant-friendly states such as California, are scrambling to find a way to help their undocumented communities, but it might not be enough. Without appropriate federal support, prompt access to more effective unemployment benefits or paid sick leave for those in need, many communities could be devastated. Left with the agonizing decision of going to work in the midst of a pandemic that requires strict limits on public movement or see their livelihood disappear, many undocumented people are already risking their health.

[Full coverage of the coronavirus pandemic]

This is a travesty. Undocumented immigrants are productive members of society who deserve all the care afforded to others.Even this administration has deemed workers who harvest and process the country’s food supply as essential, asking them to keep their “normal work schedule” during the crisis. “It’s like suddenly they realized we are here contributing,” Nancy Silva, an immigrant from Mexico who works in the fields of Southern California, told the New York Times. “Contributing” is an understatement. The immigrant workforce is critical for a significant number of industries in the United States.

In June, I interviewed John Rosenow, a Wisconsin dairy farmer who has relied on Mexican immigrants for years. “Our industry doesn’t exist without immigrant labor,” he told me. “Eighty percent of the milk in Wisconsin is harvested by immigrants. If you took the immigrants away, way over half of the farms would go out of business.” Wisconsin’s dairy industry is not alone in its dependence on immigrant labor. Indeed, almost 20 percent of food processing workers and more than 36 percent of agricultural workers are undocumented. The health-care industry relies heavily on immigrants as well,as do the country’s construction and service businesses.

. . . .

Martínez worries that a protracted economic crisis could worsen the nativist backlash against immigration. “If things continue this way,” he said, “we could see further restrictions on work or entrepreneur visas, no matter the obvious contributions we all make to the economy.”

The United States will be worse for it, both morally and economically.

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

Read the complete op-ed at the link.

The well-being of the United States as a whole has never been a part of the Trump agenda. Nor is it for the White Nationalist restrictionists who promote his immigration agenda. Their agenda is based largely on racist myths and preconceived false narratives about the dangers of the “other.”

But, in any emergency creating an economic downturn there will be a race to find “scapegoats.” Indeed, essentially “caught red-handed and in full view in failure,” Trump is desperately looking to shift the blame elsewhere for his Administration’s poor initial response and lack of planning. “With great power comes no responsibility” could be his motto.

The nativists are already toting out their shopworn arguments that the pandemic should be an excuse and justification for yet harsher and more restrictive immigration measures. The rest of us need to fight back against their counterproductive nonsense.

PWS

04-14-20

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