THIS IS DUE PROCESS? — 10th Cir. Rips BIA’s Anti-Asylum Decision-Making — BIA Ignores Record, Makes Up Law To “Stick It” To PRC Asylum Seeker! — Qiu v. Sessions! — “The nonsensical nature of the BIA’s supposed reasoning on this point is illustrative of the BIA’s failure to give fair consideration to any of the arguments in Petitioner’s motion to reopen in this case, and it represents the very definition of an abuse of discretion!” — Read My Latest “Mini-Essay” — “HOW THE BIA FAILS TO PROVIDE FAIRNESS AND DUE PROCESS TO ASYLUM SEEKERS!”

16-9522

Qiu v. Sessions, 10th Cir., 09-12-17

PANEL: PHILLIPS, McKAY, and McHUGH, Circuit Judges.

OPINION BY: Judge McKay

KEY QUOTES:

The BIA held that Petitioner had not submitted sufficient evidence to show a change in country conditions, and thus that her motion to reopen was untimely under 8 U.S.C. § 1229a(c)(7)(C). The BIA first held that Petitioner had not submitted sufficient evidence to show that the treatment of Christians in China has worsened since her 2011 immigration hearing. This factual finding is not supported by substantial—or, indeed, any—evidence in the record. The agency provided no rational explanation as to how numerous accounts of a 300 percent increase in the persecution of Christians, “unprecedented violations” of religious freedoms beginning in 2014, and possibly “the most egregious and persistent” wave of persecution against Christians since the Cultural Revolution of 1966–76 was insufficient to show that the treatment of Christians in China had worsened since 2011. Nor is there anything in the record that would contradict Petitioner’s extensive evidence of a substantial increase in the government’s mistreatment of Christians since 2011. The BIA pointed to the fact that some portions of the State Department’s 2014 report include substantially similar language to the 2008 and 2009 reports. However, the State Department’s habit of cutting and pasting portions of its old reports into newer reports does nothing to refute all of the other evidence that the level and intensity of persecution against Christians has increased significantly since 2011. Nor does anything in the State Department report suggest that the U.S. Commission and various human-rights organizations are all reporting false data or drawing false conclusions about the deterioration of the treatment of Christians in China. The BIA thus abused its discretion by holding, completely contrary to all of the evidence, that Petitioner had not shown that the treatment of Christians in China has worsened in recent years.

The BIA also suggested that the substantial increase in the persecution of Christians was simply irrelevant because “[a] review of the record before the Immigration Judge indicated that China has long repressed religious freedom, and that underground or unregistered churches continued to experience varying degrees of official interference, harassment, and repression, including breaking up services, fines, detention, beatings, and torture.” (R. at 5.) However, the fact that there was already some level of persecution in China does not prevent Petitioner from showing a change in country conditions due to a significant increase in the level of persecution faced by Christians in her country. To hold otherwise would be to bar reopening for petitioners who file for asylum when they face some, albeit insufficient, risk of persecution in their country, while permitting reopening for petitioners who file for asylum without there being any danger of persecution, then seek reopening after their country fortuitously begins persecuting people who are in their protected category thereafter. But surely Congress did not intend for 8 U.S.C. § 1229a(c)(7)(C) to protect only petitioners who file frivolous asylum applications under no threat of persecution, while extending no help to petitioners who seek reopening after an existing pattern of persecution becomes dramatically worse. The BIA’s reasoning would lead to an absurd result, one we cannot condone.

Instead, we agree with the Second, Seventh, Ninth, and Eleventh Circuits that a significant increase in the level of persecution constitutes a material change in country conditions for purposes of 8 U.S.C. § 1229a(c)(7)(C) and that the BIA abuses its discretion when it fails to assess and consider a petitioner’s evidence that the persecution of others in his protected category has substantially worsened since the initial application. See Paul v. Gonzales, 444 F.3d 148, 157 (2d Cir. 2006) (“Proof that persecution of Christians in Pakistan has become more common, intense, or far-reaching—i.e., the very proof that petitioner purports to have presented in filing his motion to reopen—would clearly bear on this objective inquiry [into the likelihood of future persecution]. Under the circumstances, the BIA’s refusal even to consider such evidence constitutes an abuse of discretion.”); Poradisova v. Gonzales, 420 F.3d 70, 81–82 (2d Cir. 2005) (holding that the BIA abused its discretion in denying a motion to reopen based on worsened country conditions: evidence that the human-rights situation in Belarus is “in an ‘accelerating deterioration’” and “that the situation has worsened since the Poradisovs’ original application” “certainly warranted more than a perfunctory (and clearly inaccurate) mention by the BIA as being ‘merely cumulative’”); Shu Han Liu v. Holder, 718 F.3d 706, 709, 712–13 (7th Cir. 2013) (holding that a petitioner seeking to file an untimely motion to reopen must meet her burden of “show[ing] that Chinese persecution of Christians (of her type) had worsened,” and concluding that the BIA abused its discretion in ignoring evidence that current conditions in China were worse than conditions at the date of the petitioner’s final removal hearing); Chandra v. Holder, 751 F.3d 1034, 1039 (9th Cir. 2014) (“The BIA abused its discretion when it failed to assess Chandra’s evidence that treatment of Christians in Indonesia had deteriorated since his 2002 removal hearing.”); Jiang v. U.S. Attorney Gen., 568 F.3d 1252, 1258 (11th Cir. 2009) (holding that the BIA clearly abused its discretion by overlooking or “inexplicably discount[ing]” evidence of “the recent increased enforcement of the one-child policy” in the petitioner’s province and hometown).

Finally, the BIA rejected Petitioner’s mother’s statement regarding her recent religious persecution in Petitioner’s hometown as both unreliable and irrelevant. The BIA held that the statement was unreliable for two reasons: (1) it was unsworn, and (2) it was prepared for the purposes of litigation. The first of these reasons is incorrect both as a matter of fact and as a matter of law. Petitioner’s mother concluded her statement by expressly swearing to the truth of everything she had stated therein, and thus the BIA’s factual finding that the statement was unsworn is refuted by the record. And even if the BIA were correct in its factual finding, we note that several “[o]ther circuits have admonished the Board for dismissing or according little weight to a statement due to its unsworn nature.” Yu Yun Zhang v. Holder, 702 F.3d 878, 881 (6th Cir. 2012). There is no statutory support for the BIA’s contention that documents at immigration hearings must be sworn, and “numerous courts,” “without so much as pausing to note the unsworn nature of a document, . . . have relied on such documents when considering claims of asylum applicants.” Zuh v. Mukasey, 547 F.3d 504, 509 (4th Cir. 2008). “Moreover,” the Fourth Circuit noted in Zuh, “it seems untenable to require a sworn statement from a person harassed because of a relationship with an asylum applicant and potentially endangered by helping that applicant.” Id.; see also Yu Yun Zhang, 702 F.3d at 881 (“Given the documented persecution of Christians in China, it seems an arbitrarily high threshold to require that letters attesting to government abuse and admitting membership in a persecuted organization be notarized.”).

As for the BIA’s second reason for rejecting the statement as unreliable, the fact that the evidence was prepared while litigation was ongoing is all but inevitable in the context of a motion to reopen, and we hold that the BIA may not entirely dismiss an asylum applicant’s evidence as unreliable based solely on the timing of its creation. Neither the BIA decision nor the government brief cites to a single statute or circuit court decision to support the idea that the timing of a statement’s creation is a dispositive or even permissible factor in evaluating its reliability in an asylum case. Furthermore, we note that the Sixth Circuit has held that it simply “does not matter that [evidence] may have been written for the express purpose of supporting [a petitioner’s] motion to reopen,” citing for support to a Ninth Circuit case which held that the BIA may not “denigrate the credibility” of letters written by the petitioner’s friends based simply on the inference that her friends “‘would tend to write supportive letters.’” Yu Yun Zhang, 702 F.3d at 882 (quoting Zavala-Bonilla v. INS, 730 F.3d 562, 565 (9th Cir. 1984)). We need not resolve this broader question in the case before us today; even if the timing of a statement’s creation might perhaps play some role in determining its credibility and the weight it should be afforded, the BIA cannot entirely dismiss a statement as unreliable based simply on the fact that it was prepared for purposes of litigation. The protections that the asylum statute was intended to provide would be gutted if we permitted the BIA to entirely reject all evidence presented by an asylum applicant that is prepared following the filing of the initial asylum application, and we see neither legal or logical support for such a ruling. We accordingly hold that the BIA abused its discretion in this case by rejecting Petitioner’s mother’s statement as unreliable based solely on the (erroneous) finding that it was unsworn and on the timing of its creation.

Finally, the BIA dismissed Petitioner’s mother’s statement as irrelevant because “the respondent’s mother is not similarly situated to the respondent, inasmuch as the incidents giving rise to her purported violations occurred in China, not in the United States.” (R. at 4.) This reasoning defies understanding. The heart of the matter is whether Petitioner will be persecuted if she is removed to China—to the town where her mother has allegedly been persecuted for the religious beliefs she shares with Petitioner, and where the local police have allegedly made threatening statements about Petitioner—and it is simply absurd to dismiss her mother’s experiences as irrelevant because her mother’s experiences occurred in China. Indeed, it is the very fact that her mother’s experiences occurred in China that makes them relevant to Petitioner’s motion to reopen. Tinasmuch as the incidents giving rise to her purported violations occurred in China, not in the United States.” (R. at 4.) This reasoning defies understanding. The heart of the matter is whether Petitioner will be persecuted if she is removed to China—to the town where her mother has allegedly been persecuted for the religious beliefs she shares with Petitioner, and where the local police have allegedly made threatening statements about Petitioner—and it is simply absurd to dismiss her mother’s experiences as irrelevant because her mother’s experiences occurred in China. Indeed, it is the very fact that her mother’s experiences occurred in China that makes them relevant to Petitioner’s motion to reopen. The nonsensical nature of the BIA’s supposed reasoning on this point is illustrative of the BIA’s failure to give fair consideration to any of the arguments in Petitioner’s motion to reopen in this case, and it represents the very definition of an abuse of discretion. 

The BIA provided no rational, factually supported reason for denying Petitioner’s motion to reopen. We conclude that the BIA abused its discretion by denying the motion on factually erroneous, legally frivolous, and logically unsound grounds, and we accordingly remand this case back to the BIA for further consideration. In so doing, we express no opinion as to the ultimate merits of the case.”

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

HOW THE BIA FAILS TO PROVIDE FAIRNESS AND DUE PROCESS TO ASYLUM SEEKERS

By

Paul Wickham Schmidt

United States Immigration Judge (Retired)

Everyone should read the Tenth Circuit’s full opinion detailing the mounds of evidence that the BIA ignored and/or mischaracterized, at the above ink.

Folks, the 10th Circuit, former home of Justice Neil Gorsuch, is hardly known as a “haven” for asylum seekers. So, that the 10th finally is fed up with the BIA’s biased anti-asylum seeker decision making speaks volumes.

I’ve made the observation before that the BIA appears to be on “anti-asylum autopilot.” This looks for all the world like a “cut and paste” denial mass-produced by BIA staff from boilerplate that is unrelated to the facts, evidence, or, as this case shows, even the law. The BIA sometimes twists the law against asylum seekers; other times, as in this case, the BIA simply pretends that the law doesn’t exist by ignoring it. I can just imagine the BIA opinion drafter thinking to him or her self, “Oh boy, another routine PRC motion denial. This should sail through the panel without any problem.  Need to get those numbers up for the month.”

This is not an isolated incident. As I’ve pointed out before, there is a strong anti-asylum bias in the BIA’s decisions. Virtually no BIA precedents (particularly since the “Ashcroft purge” when true deliberation and dissent were tossed out the window) illustrate how commonly arising situations can and should result in many more grants to asylum seekers under the generous principles enunciated by the Supreme Court in INS v. Cardoza-Fonseca and by the BIA in Matter of Mogharrabi, yet routinely ignored by today’s BIA.

The majority of asylum seekers are credible individuals coming from countries where persecution, torture, and human rights abuses are well-documented. Even in the Northern Triangle, where the BIA has intentionally skewed the law against asylum seekers, torture by gangs by and cartels while the corrupt government authorities are either complicit or “willfully blind” abounds. The BIA, and some U.S. Immigration Judges, have to work overtime and routimely turn a blind eye to both facts and the law to deny protection in the majority of cases.

At a minimum, most Southern Border arrivals fleeing gang violence should be getting temporary grants of protection under the CAT. Instead, they are often railroaded out of the country, sometimes without even seeing a U.S. Immigration Judge, other times with no legal assistance to help them in making a claim. And, the Sessions-led Justice Department had the absolute gall to claim that this lawless and unconstitutional behavior amounts to a “return to the rule of law” at EOIR!

Where’s the outrage from this type of gross abuse of the system by politicos who should have no role in the operations of the U.S. Immigration Courts? Where is the Congressional oversight of Sessions’s use of the USDOJ as a tool to advance a blatantly restrictionist, White Nationalist political agenda? How does a system that functions this poorly, on all levels, justify elimination of annual in-person training of U.S. Immigration Judges?

When you read the full decision, you can see the voluminous evidentiary package that the respondent’s counsel put together just to get a reopened hearing. And, it resulted in an illegal denial by the BIA. Only an appeal to a Court of Appeals saved the day. How could any unrepresented asylum seeker achieve due process in a system that demands unreasonable documentation, routinely denies individuals the legal assistance necessary to assemble and present such evidence, and then ignores the evidence when it is presented? What kind of due process is this?

And, the Article III Courts have to shoulder some of blame. In particular, the Fifth Circuit “goes along to get along” with the BIA, and turns a blind eye to violations of human rights laws and skewed factfinding in “rubber stamping” inadequate hearings coming from detention centers in obscure locations in Texas.

Reiterating a point I’ve made numerous times, why is a captive, enforcement-oriented, pro-Government tribunal that performs in the manner detailed in this case entitled to “deference” on either the facts or the law (so-called “Cheveon deference” that has been criticized by Justice Gorsuch and others)? What’s “expert” about a tribunal that routinely ignores and misconstrues basic asylum law as detailed in this decision?

At a minimum, in light of the types of gross miscarriages of justice that have come to light in some recent Court of Appeals decisions, the BIA should change its internal operating procedures to require that all asylum denials be reviewed by a  three-judge panel. But, don’t hold your breath. That would slow down the “assembly line” at the “Falls Church Service Center.” And turning out large numbers of final orders of removal without any real deliberation is what the “Sessions-Era BIA & EOIR” is all about.

Folks, we need an independent U.S. Immigration Court, including a competent Appellate Division (“BIA”). And in the future, selections of BIA Appellate Immigration Judges should be made in the same careful manner that applies to U.S. Supreme Court and Court of Appeals Judges.

The “life and death” power wielded by U.S. Immigration Judges and BIA Appellate Immigration Judges actually exceeds that of most Article III Judges. Yet the selection process for the Immigration Judiciary is opaque, cumbersome, secretive, closed, and consistently produces one-sided results skewed toward “insiders” or those with government experience. In other words, those with a history of “going along to get along” in the system rather than showing independent thinking and the courage to stand up for due process even when  it isn’t “in vogue” with the politicos in an Administration (and genuine due process for migrants is seldom”in vogue” these days in either GOP or Democratic Administrations).

Proven expertise, excellence, sensitivity to individual situations, and commitment to due process for migrants and correct application of human rights law and protections should be a minimum qualification for an Appellate Immigration Judge. And, the same question should be asked that was asked of Justice Gorsuch: “If necessary, are you willing to stand up and rule against the President and the Administration.” Obviously, in the case of the current BIA, the answer would largely be “No.”

PWS

09-13-17

 

Supremes Engage On Naturalization Issue!

https://www.washingtonpost.com/politics/courts_law/supreme-court-fears-giving-government-too-much-power-to-revoke-naturalization/2017/04/26/13b7814e-2aac-11e7-be51-b3fc6ff7faee_story.html?utm_term=.6a9daea75352

Robert Barnes writes in the Washington Post:

“Chief Justice John G. Roberts Jr. said Wednesday he had grave worries about “prosecutorial abuse” if even a minor lie in the application process means the government can later strip a naturalized immigrant of her citizenship.

As the issues of immigration and deportation take center stage under the Trump administration, Roberts and other Supreme Court justices seemed hesitant to give the government unfettered power to remove naturalized citizens from the country.

The case involved a Bosnian native, Divna Maslenjak, who was criminally prosecuted for lying on her application about her husband’s military service. She was deported by the Obama administration, which held the broad view that any misrepresentation — whether relevant or not — was enough to give the government the right to consider revocation.

“It is troublesome to give that extraordinary power, which, essentially, is unlimited power, at least in most cases, to the government,” Roberts said. Because it would be easy in almost all cases to find some falsehood, the chief justice said, “the government will have the opportunity to denaturalize anyone they want.”

Roberts, who regularly warns about the discretionary power of prosecutors, and Justice Anthony M. Kennedy added a moment of drama to a lively hearing that was the Supreme Court’s last scheduled oral argument of the term.

They were not persuaded by Justice Department lawyer Robert A. Parker’s assertion that other safeguards are built into the system and that government lawyers had little reason to search through the millions of files of naturalized citizens to find trivial reasons to prosecute. Even denaturalization, Parker said, only returns a person to the status of lawful permanent resident and allows reapplication.

. . . .

Some justices noted that the statute does not specifically require that. “It seems like, linguistically, we have to do some somersaults to get where you want to go,” said Justice Neil M. Gorsuch, who testified during his recent confirmation hearings about sticking closely to the text of statutes.

And Justice Ruth Bader Ginsburg said Maslenjak’s misrepresentations appeared directly relevant to her application. She lied about what her husband was doing in Bosnia, Ginsburg said. “Under what circumstances would that be immaterial?”

. . . .

The case is Maslenjak v. United States.”

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

PWS

04-26-17

 

 

 

Judge Neil Gorsuch Confirmed By Senate On 54-45 Vote — Will Be Sworn In As Associate Justice On Monday, Replacing The Late Justice Antonin Scalia!

https://www.wsj.com/articles/senate-expected-to-confirm-neil-gorsuch-as-supreme-court-justice-1491557404

The WSJ reports:

“WASHINGTON—The Senate on Friday confirmed Neil Gorsuch to the Supreme Court, ending a 14-month vacancy on the high court that spanned two presidential administrations and sparked one of the most bitter political fights in Washington in recent memory.

In a vote that fell largely upon partisan lines, Judge Gorsuch was approved as the next associate justice of the Supreme Court by 54-45. Three Democrats crossed the aisle to support Judge Gorsuch’s nomination, while he drew unanimous support from Senate Republicans.

“This brilliant, honest, humble man is a judge’s judge. And he will make a superb justice,” said Sen. Chuck Grassley, an Iowa Republican and chairman of the Senate Judiciary Committee.

Senate Minority Leader Chuck Schumer (D., N.Y.), who had opposed Judge Gorsuch as an out-of-the-mainstream conservative, acknowledged defeat but said he hoped the new justice wouldn’t be bound by the conservative groups that advised President Donald Trump on the choice.

“We are charging Judge Gorsuch to be the independent and fair-minded justice that America badly needs,” Mr. Schumer said. “If he is instead a justice for the Federalist Society and the Heritage Foundation, that will spell trouble for America.”

The only senator not voting was Johnny Isakson (R., Ga.), who is recovering from surgery.

The new justice will be sworn in Monday morning during a private ceremony at the Supreme Court, followed later in the day by a public ceremony at the White House. He will join his new colleagues on the bench on April 17, filling the seat held for three decades by the late Justice Antonin Scalia.”

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

I continue to think that the Democrats made a mistake in picking the Gorsuch nomination to make a “stand.”  A stand on what? That a GOP President doesn’t have a right to appoint a well-qualified conservative jurist to the Court? How does that follow? Doesn’t a Democrat have a right to appoint a well-qualified more liberal jurist?

Yes, the GOP and Senate Majority Leader Mitch McConnell (R-KY) treated an outstanding, moderately liberal jurist, Chief Judge Merrick Garland with total shabbiness and disrespect. But, hey, we’re talking about Mitch McConnell here; perhaps one of the wiliest and shrewdest legislators ever to walk the halls of the Senate, but hardly anyone’s choice for the classiest or most decent.

And none of this was Judge Gorsuch’s fault. He respects Chief Judge Garland and made it clear that he did not agree with the way he was treated.

The political problem was that the Democrats had lost control of the Senate, and notwithstanding making control of the Supremes a major campaign issue, they lost both the Presidency and the Senate in 2016. Winners have leverage, losers don’t.

The real solution here is for the Dems to get out there and win some elections, at all levels. And, if anything, the ill-advised Gorsuch battle made them look no more like the “party of adults” than the  GOP.

I think Justice Gorsuch will be engaged, scholarly, collegial, and fair within his own very conservative philosophical framework. And, all of us who are or have been judges are, to some extent, prisoners of our own backgrounds, philosophies, and life experiences.

But, being on a collegial court with those holding other views forces a judge to listen to other views, consider other possible outcomes, and to reexamine carefully the legal and intellectual justifications for one’s own positions. That’s about all you can ask of a jurist. And, I’m relatively certain that somewhere down the line, Judge Gorsuch will cast some votes, write, and join some opinions that will surprise both his supporters and detractors.  And, that will be a good thing for the U.S. justice system. It’s what judicial independence and separation of powers is all about.

PWS

04/08/17

James Hohmann In WashPost: How Trump Is Winning The War Even While Losing Some Key Battles — “Deconstruction Of The Administrative State” Moving At Full Throttle With No End In Sight! PLUS EXTRA BONUS: My Mini-Essay “On Gorsuch, Deference, & The Administrative State!”

https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2017/03/27/daily-202-how-trump-s-presidency-is-succeeding/58d88409e9b69b72b2551039/?utm_term=.dbeab923d833

Hohmann writes:

“– Liberals mock Trump as ineffective at their own peril. Yes, it’s easy to joke about how Trump said during the campaign that he’d win so much people would get tired of winning. Both of his travel bans have been blocked – for now. An active FBI investigation into his associates is a big gray cloud over the White House. The president himself falsely accused his predecessor of wiretapping him. His first national security adviser registered as a foreign agent after being fired for not being honest about his contacts with the Russian ambassador. His attorney general, at best, misled Congress under oath.
— Despite the chaos and the growing credibility gap, Trump is systematically succeeding in his quest to “deconstruct the administrative state,” as his chief strategist Stephen K. Bannon puts it. He’s pursued the most aggressive regulatory rollback since Ronald Reagan, especially on environmental issues, with a series of bills and executive orders. He’s placed devoted ideologues into perches from which they can stop aggressively enforcing laws that conservatives don’t like. By not filling certain posts, he’s ensuring that certain government functions will simply not be performed. His budget proposal spotlighted his desire to make as much of the federal bureaucracy as possible wither on the vine.

— Trump has been using executive orders to tie the hands of rule makers. He put in place a regulatory freeze during his first hours, mandated that two regulations be repealed for every new one that goes on the books and ordered a top-to-bottom review of the government with an eye toward shrinking it.
Any day now, Trump is expected to sign an executive order aimed at undoing Obama’s Clean Power Plan and end a moratorium on federal-land coal mining. This would ensure that the U.S. does not meet its commitments under the Paris climate agreement.

The administration is also preparing new executive orders to re-examine all 14 U.S. free trade agreements, including NAFTA, and the president could start to sign some of them this week.

— Trump plans to unveil a new White House office today with sweeping authority to overhaul the federal bureaucracy and, potentially, privatize some government functions. “The Office of American Innovation, to be led by Jared Kushner, the president’s son-in-law and senior adviser, will operate as its own nimble power center within the West Wing and will report directly to Trump,” Ashley Parker and Philip Rucker report. “Viewed internally as a SWAT team of strategic consultants, the office will be staffed by former business executives and is designed to … create a lasting legacy for a president still searching for signature achievements. … Kushner’s team is being formalized just as the Trump administration is proposing sweeping budget cuts across many departments, and members said they would help find efficiencies.”

Kushner’s ambitions are grand: “At least to start, the team plans to focus its attention on re-imagining Veterans Affairs; modernizing the technology and data infrastructure of every federal department and agency; remodeling workforce-training programs; and developing ‘transformative projects’ under the banner of Trump’s $1 trillion infrastructure plan, such as providing broadband Internet service to every American. In some cases, the office could direct that government functions be privatized, or that existing contracts be awarded to new bidders.”

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

On Gorsuch, Deference, & The Administrative State

by Paul Wickham Schmidt

Hohmann’s points make quite a bit of sense to me — until he gets down to his rather remarkable conclusion that progressives should have invested more in a fight against Gorsuch. What? Just how would they have done that?  The GOP has the votes to confirm, as they will do, and there is nothing the Dems can do to stop it, except to look feeble, petty, and out of touch in the attempt.

The confirmation hearings revealed nothing that was not already known. Gorsuch should be a reliable conservative vote on the Court, perhaps, but not necessarily, even more than Justice Scalia. Surprise!

We just had an election during which McConnell’s scheme to block the nomination of Chief Judge Merrick Garland to the Supremes, the control of the Senate, and the ability of the next President to appoint a liberal (Hillary) or a conservative (Trump) as Scalia’s replacement were big issues. And, guess what? Whether Dems like it or not, the GOP won both the Presidency and the Senate and thereby the ability to appoint their man (in this case) as the next Justice.

What’s remarkable about that? It would have only been remarkable if President Trump had nominated someone less conservative than Judge Gorsuch. And, certainly, if Hillary had won and the Democrats won the Senate she could legitimately have chosen to resubmit Judge Garland or chosen an even more liberal candidate who would have duly been confirmed by the Democrats over the GOP’s objections. Elections have consequences, particularly when your party loses control of both of the political branches of Government.

I continue to suspect that while Justice Gorsuch will be very conservative, at some point in the future he will be persuaded to side with the so-called “liberal Justices” against some position that is key to the GOP — perhaps, the scope of Executive authority. At that point, the same GOP Senators who gushed on about his “judicial independence” will be screaming “betrayal,” while the Democrats will be congratulating him on “conscientiously following the law.”

Look at how Chief Justice Roberts went from poster boy for judicial conservatism to “dupe of the left” just by failing to veto Obamacare as the GOP had been counting on. All politicians want judges who exercise their “judicial independence” in a predictable way consistent with the political philosophy of the party that appointed them. Once on the bench, however, with lifetime tenure and only their judicial colleagues to answer to, few actually live up to all of the exceptions of their political appointers.

Moreover, I don’t agree with the supposedly “liberal” position that Executive Branch administrative judges (like I was) and bureaucrats (which I also was) should have the power to impose their views on legal issues, even if not particularly sound ones, on the Article III Judiciary. Chief Justice John Marshall must be turning over in his grave, while Thomas Jefferson dances on top of it, at this bizarre voluntary surrender of judicial authority known as “Chevron.”

There is always pressure on Executive Branch officials, be they administrative judges or just “regular agency bureaucrats,” to construe the law in ways that favor Executive policies and Executive power over the power and prerogatives of the other two branches of Government and often over the rights of individuals in the U.S.

Deciding difficult questions of law, where the answers are not clear, is what Article III Judges are paid to do, and what they are supposed to do under the Constitution! At one time, this is what they actually did! The pre-ChevronSkidmore doctrine” already gave the Article III Judiciary adequate latitude to recognize the expertise of certain Executive Branch officials and to defer to their interpretation when it appeared to be the best one, or at least as good as any of the alternatives.

But, Chevron basically substituted the concept of “any plausible interpretation” for the “best interpretation.”  That’s simply not the way an independent judiciary should function under the separation of powers established in our Constitution.

I say all of this as someone who spent the bulk of my professional career as a public servant within the “administrative state” and who, unlike the Bannons of the world, believes in the power of the Federal Government to do good things for the general population. But, I have also seen first-hand the weaknesses and biases of the Executive when it comes to interpreting the law.

Meaningful independent judicial oversight over the “administrative state,” which includes “de novo” (basically unrestricted) review of Executive legal decisions by the Article III Judiciary, is a requirement  for fairness and due process under our Constitution.

Finally, the Dems should abandon Schumer’s ill-conceived idea of a “Gorsuch filibuster.”  Of the minority of Americans who actually care about the Gorsuch confirmation, only a minority of those are opposed. In other words, the Dems are about to proceed on a futile parliamentary maneuver that really only speaks to a small number of voting Americans, who are already in their “base.” Absolutely no need to do that.

What is needed if the Dems don’t want another Gorsuch appointment is to start winning more elections, particularly in the U.S. Senate and for the Presidency the next time around. That will require more than feeble posturing, tilting at windmills, and some additional “Trump fails.”

The Democrats need some dynamic leadership (which currently is conspicuously absent) and some real, down to earth programs and proposals to solve America’s problems (something which I haven’t heard to date). What can the Dems do that the GOP can’t, and why should folks care?

Otherwise, the next nominee for the Supremes could be along the lines of Judge Jeannie or Judge Napolitano. And, the Dems will continue to be powerless to stop it.

PWS

03/27/17

 

DOJ’s Travel Ban Litigating Strategy Discussed — The Rush Appears To Be “Off!”

https://www.washingtonpost.com/news/post-nation/wp/2017/03/23/trump-said-dangerous-people-might-be-pouring-in-without-his-travel-ban-but-hes-not-rushing-to-restore-it/?utm_term=.91d750428250

Matt Zapotosky reports in the Washington Post:

“Legal analysts and opponents say the Justice Department is likely pursuing a more methodical, strategic approach in hopes of a long-term victory — although in the process, the administration is hurting its case that the order is needed for urgent national security.

“If they don’t try to move the case as quickly as possible,” said Leon Fresco, deputy assistant attorney general for the Office of Immigration Litigation in President Barack Obama’s Justice Department, “it does undermine the security rationale.”

Trump’s new travel order — which suspended the U.S. refugee program for 120 days and blocked the issuance of new visas to citizens of Iran, Sudan, Somalia, Libya, Somalia and Syria for 90 days — was supposed to take effect March 16, but U.S. District Judge Derrick K. Watson in Hawaii blocked the administration from enforcing the critical sections of it. Early the next day, a federal judge in Maryland issued a similar ruling — leaving the administration with two different cases, in two different appellate circuits, that they would need to get overturned before they could begin carrying out the president’s directive. All roads seemed to lead to the Supreme Court.
But now it seems all but certain that the president’s revised entry ban will stay suspended at least into April, and possibly longer.

Lawyers for the Justice Department filed a notice of appeal in the Maryland case a day after the judge there ruled, but — unlike last time — they did not ask the higher court to immediately set aside the freeze on the new ban. They said they will do so Friday, but those challenging the ban will have a week to respond, and the Justice Department will then be allowed to file more written arguments by April 5.

The Trump administration has been content to let the court battle play out even more slowly in Hawaii, not elevating the dispute beyond a lower-court judge. The Justice Department has not filed a notice of its intent to appeal the ruling, and the next hearing in that case is set for March 29. Justice Department lawyers wrote Thursday that they would appeal to a higher court if that hearing doesn’t resolve in their favor. The courts will ultimately have to decide important questions, including how much authority they have to weigh in on the president’s national security determinations, whether Trump’s order was meant to discriminate against Muslims, and whether and how the president’s and his advisers’ own comments can be used against them.

There could be strategic reasons for pumping the brakes. Stephen W. Yale-Loehr, a professor of immigration law at Cornell Law School, said the Justice Department might be hoping for a favorable ruling from the U.S. Court of Appeals for the 4th Circuit, of which Maryland is a part, before they bring a case before the 9th Circuit, of which Hawaii is a part. A three-judge panel in the 9th Circuit unanimously rejected the administration’s bid to restore Trump’s first entry ban after it was frozen. The 4th Circuit on Thursday scheduled oral argument in its case for May 8.

And the Justice Department could be playing an even longer game, hoping that by the time the case makes its way to the Supreme Court, Neil Gorsuch will have joined the justices and brought to an end what many see as a 4-to-4 split along ideological lines, said Jonathan E. Meyer, a former deputy general counsel in the Department of Homeland Security under Obama who now works in private practice at Sheppard Mullin.”

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

Even assuming that the Supremes eventually take the case, by no means a “gimme,” it probably would not be heard by the Court until some time in 2018 with a decision perhaps months after the argument. During that time, it is highly likely that the Travel Ban will remain enjoined.

From a government standpoint, it’s always prudent to 1) think carefully before taking on issues that can be litigated in U.S. District Courts which have authority to issue nationwide injunctions which require only a preliminary showing and are very difficult to “undo” (by contrast, “Removal Cases” usually can only be litigated in Circuit Courts of Appeal, which, although higher on the “judicial totem pole” than USDCs, lack authority to issue nationwide injunctions in connection with such individual case judicial review); and 2) always have “Plan B.” Here, “Plan B” might be the more stringent requirements for screening and issuing visas from countries where terrorist activity has taken place set forth in Secretary of State Tillerson’s recent instructions discussed in my previous blog:

http://wp.me/p8eeJm-xN

PWS

03/23/17

 

 

Sometimes, Saying Nothing & Just Going About Your Business Is The Best Strategy

http://time.com/4664957/trump-tweets-judiciary-judges-gorsuch/

Mark Sherman reports in Time:

“(WASHINGTON) — President Donald Trump’s unusually personal criticism of federal judges has drawn rebukes from many quarters, including from Supreme Court nominee Neil Gorsuch, but not from the judges themselves.
And that’s not likely to change, even if the tweeter in chief keeps up his attacks on judges. Bolstered by lifetime tenure, independent judges should not respond to criticism, no matter how harsh or that its source is the president, said a former judge, a law school dean and a constitutional law professor.
Judges “should basically give the tweets the attention they deserve, which means they should be ignored. This is basically a childish tantrum from someone who didn’t get his way. And the judiciary should go about its business and decide cases, including cases involving him,” said Vanderbilt University law professor Suzanna Sherry.
Trump’s style may be different and his language more coarse, but the comments themselves are not the “threat to judicial independence that some commentators have made them out to be,” said University of Pennsylvania law school dean Theodore Ruger.
Former U.S. District Judge Paul Cassell said judges would find themselves in unfamiliar territory “if they start critiquing the Twitter feed of the president.”
Chief Justice John Roberts has apparently embraced that advice. Roberts declined through a court spokeswoman to comment for this article.

Roberts himself was Trump’s first target during the presidential campaign. Last winter, Trump called the chief justice “an absolute disaster” and “disgraceful” mainly for the two opinions Roberts wrote that preserved President Barack Obama’s health care overhaul.
Next in Trump’s sights was U.S. District Judge Gonzalo Curiel, who was presiding over fraud lawsuits against Trump University. In June, Trump called Curiel “a hater of Donald Trump” who couldn’t be fair to him because Curiel is “of Mexican heritage” and Trump had proposed building a wall on the U.S.-Mexican border.
Last week, Trump pegged U.S. District Judge James Robart as a “so-called judge” after Robart imposed a temporary halt on Trump’s executive order barring people from seven predominantly Muslim countries from coming to the United States. On Sunday, Trump renewed his Twitter attacks against Robart: “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”
On Wednesday, he said the “courts seem to be so political,” in reference to the three federal appeals court judges who are considering the administration’s plea to enforce the order.
Later Wednesday, Gorsuch said he found the president’s attacks on the judiciary “disheartening” and “demoralizing.” The comments were made in a private meeting with Democratic Sen. Richard Blumenthal of Connecticut, although senators often provide an account of what was discussed in such meetings. Gorsuch’s confirmation team confirmed the essence of the remarks.
Trump is not the first president to object to court decisions or to opine about how a court should rule, said Paul Collins, a political science professor at the University of Massachusetts at Amherst. Obama used his 2010 State of the Union message to assail the Supreme Court’s Citizens United campaign finance ruling, with several justices in the audience. Obama also delivered a lengthy pitch for his health care law while the court was weighing the case in 2015.
With the exception of John F. Kennedy, every president since Dwight Eisenhower has been critical of some Supreme Court decisions, said Collins, drawing on research he did with co-author Matthew Eshbaugh-Soha of the University of North Texas.
But past presidents did not make their displeasure known by “attacking judges … or by questioning the decision such that there’s a possibility of undermining faith in the judicial system,” Collins said. “I get this uncomfortable sense that the president may be trying to lower confidence in judges in anticipation of defying a ruling.”
Ruger said Roberts, as the head of the judicial branch of government, or another justice might feel compelled to speak up about the importance of an independent judiciary if the attacks continue.But Cassell, a law professor at the University of Utah who was a judge from 2002 to 2007, said Trump has the right to voice his disagreement. “We live in an age now where, for better or for worse, the language we use is getting rougher in a variety of contexts,” he said.”

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

It also helps to have a job with life tenure.

PWS

02/09/17

E. Donald Elliott In The WSJ: Dems Would Be Wise To Take A Pass On Filibuster Of Judge Gorsuch!

https://www.washingtonpost.com/opinions/refugees-are-part-of-americas-fabric-and-its-promise/2017/02/06/c10179ba-ea59-11e6-80c2-30e57e57e05d_story.html

Elliott, an Adjunct Professor of Law at Yale Law writes:

“Moderates could do a lot worse than Judge Neil Gorsuch—and we probably will if he isn’t confirmed. Donald Trump is clearly determined to nominate a judicial conservative to the Supreme Court. Elections have consequences, as Barack Obama once chided congressional Republicans.

Judge Gorsuch’s judicial philosophy isn’t mine. He believes that the Constitution’s meaning is fixed, that whatever the words signified in the era of the Founders is what they still express today. My view, which aligns more closely with that of Justices Stephen Breyer and Elena Kagan, is that judges must respect the Constitution’s text and history but may also interpret them to fit the changing times.

But among judicial conservatives, Judge Gorsuch is as good as it possibly gets. I have known him personally for more than a decade, since he was an attorney in the Justice Department. He is a brilliant mind, but more important he is a kind, sensitive and caring human being. Judge Gorsuch tries very hard to get the law right. He is not an ideologue, not the kind to always rule in favor of businesses or against the government. Instead, he follows the law as best as he can wherever it might lead.

Judge Gorsuch has demonstrated in his rulings that he believes the judiciary has a sworn duty to protect individual liberties, even when they lack broad public support. Today Judge Gorsuch rules that Hobby Lobby cannot be forced to offer employees certain contraceptive coverage that violates its owners’ religious beliefs. (That ruling was upheld by the Supreme Court.) But tomorrow it could mean standing up for an unpopular minority group that liberals like better.”

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

PWS

02/07/17

 

immigrationcourtside Religion & Politics: In His “Other Life,” Judge Neil Gorsuch Belongs To A Liberal Episcopal Church In Denver!

https://www.washingtonpost.com/news/acts-of-faith/wp/2017/02/01/neil-gorsuch-belongs-to-a-notably-liberal-church-and-would-be-the-first-protestant-on-the-court-in-years/?utm_term=.9e3a77e1bf11

“The day after Donald Trump was elected president, the Rev. Susan Springer wrote to her congregation that they should strive to behave as Godly people who spread hope even though “the world is clasping its head in its hands and crying out in fear.”

That Sunday, one of the ushers at Springer’s church was Neil Gorsuch — soon to become President Trump’s nominee for the open spot on the Supreme Court.

Gorsuch has staked his own conservative positions on numerous issues, including topics of religious concern: In cases involving the art supply chain Hobby Lobby and the Catholic order Little Sisters of the Poor, both of which eventually reached the Supreme Court, Gorsuch ruled in favor of religious conservatives who said the Affordable Care Act infringed on their religious freedom to not pay for contraception.

But at church, he often hears a more liberal point of view.

He belongs to St. John’s Episcopal Church in Boulder, Colo., the Episcopal diocese of Colorado confirmed on Wednesday. Church bulletins show that the judge has been an usher three times in recent months. His wife Louise frequently leads the intercessory prayer and reads the weekly Scripture at Sunday services, and his daughters assist in ceremonial duties during church services as acolytes.

If he joins the Supreme Court, Gorsuch as an Episcopalian would be the first Protestant member since 2010. Five current members are Catholic and three are Jewish, and the late Justice Antonin Scalia was Catholic as well.”

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

To me, it says something very positive that Judge Gorsuch can be a member of and participate in a group that does not necessarily share all of his views.  And, it says something about his church that they are able to welcome him even though many might disagree with him politically.  My wife and I happen to go to a modest sized community-based church in Alexandria, VA that welcomes all people and has both prominent local Democrats and Republicans among our membership.

In some ways, Judge Grosuch reminds me of one of my wonderful former colleagues who was a conservative judge (with a big heart) but was very committed to the mission of his socially liberal Episcopal parish. He was out there delivering sandwiches to the homeless and helping the church to help those less fortunate all the time and was a very loyal participant in the religious services and the intellectual life of his church. And, I always had the impression that the members of his congregation really appreciated him because he gave them insights that they might not have thought about otherwise.

After sports and politics, theology was probably the next most discussed topic at our numerous Arlington Judges lunches.  Perhaps for obvious reasons, we tried to keep a lid on the discussions of Immigration Law or save them for “chambers.”

PWS

02/05/17

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

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

HuffPost writes:

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

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

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

. . . .

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

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

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

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

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

by Paul Wickham Schmidt 

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

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

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

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

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

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

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

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

PWS

01/31/17