🇺🇸⚖️STRAIGHT TALK FROM HON. JEFFREY S. CHASE: “[F]or decades the BIA has enforced the offensive, outdated message to women seeking protection from such abuse that ‘this is not their world.’ The time has come to finally put an end to this sad substitute for true administrative appellate review.”

Trial by Ordeal
Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Trial By Ordeal
Woman Being “Tried By Ordeal”
17th Century Woodcut
Public Realm
Source: Ancient Origins Website
https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

 

https://www.jeffreyschase.com/blog/2021/4/6/the-bias-mansplaining-of-gender-based-asylum

Blog Archive Press and Interviews Calendar Contact

The BIA’s Mansplaining of Gender-Based Asylum

“Every woman knows what I’m talking about. It’s the presumption that makes it hard, at times, for any woman in any field; that keeps women from speaking up and from being heard when they dare; that crushes young women into silence by indicating, the way harassment on the street does, that this is not their world. It trains us in self-doubt and self-limitation just as it exercises men’s unsupported overconfidence.”

Rebecca Solnit, Men Explain Things to Me

On April 5, the U.S. Court of Appeals for the Ninth Circuit issued a published decision in Rodriguez Tornes v. Garland.  The opening sentences of the decision are heartbreaking:

Since the age of five, Petitioner has been told that men will beat her if she does not submit. Her mother demanded that she learn how to do housework, how to accept spousal abuse, and how “to obey everything that [her] husband would say.” She beat Petitioner with various objects almost daily, in part to prepare her for future beatings from her husband.

But along with the darkness there was also hope.  The decision’s opening paragraph concludes: “Yet Petitioner came to believe that ‘there should be equality in opinions[] and in worth’ between men and women. She became a teacher.”

Remarkably, over all the years that followed, the Petitioner’s hope survived the most brutal attempts to crush her into silence and submission.  As her mother had foreseen, she endured unspeakable and repeated forms of physical and psychological torture, including beatings and rape, at the hands of her husband.  Yet she continued to express the belief in her rights as an equal, and was brutally punished each time she did so, in an attempt to destroy the part of her capable of forming such belief.  Neither the police nor her own family offered her any possibility of protection.

When she finally succeeded in escaping to the U.S., her abuse continued, merely transferred to the hands of another domestic partner with whom she had three children in this country.  In 2017, our government deported both her and her latest abuser.  Facing the prospect of continued harm in her native Mexico, her still unbroken hope guided her to the U.S. once again, where she was placed into removal proceedings.

Her hope was briefly rewarded when an Immigration Judge granted the Petitioner asylum, ruling that her persecution was on account of her feminist political opinion.  The Immigration Judge alternatively held that asylum was warranted on account of the Petitioner’s membership in the particular social group consisting of “Mexican females,” which formed at least one central reason for her persecution.

It isn’t clear why ICE appealed the IJ’s decision.  On appeal, the BIA acknowledged the Petitioner’s honesty and the ongoing, systemic nightmare of violence she endured because of her gender and unbroken belief that she possessed rights.  And yet the BIA chose to act like a rubber stamp for the administration it served, and found a way to reverse the IJ’s well-reasoned decision.  According to a concurring opinion of the circuit court, the BIA managed this by suggesting that the Petitioner’s brutal suffering was motivated by her “personal relationship” with her abuser.   According to the concurrence, the BIA supported this conclusion by relying on the decision of former Attorney General Jeff Sessions in Matter of A-B-.

Of course, asylum applications require an individualized analysis of the facts of the specific case under consideration.  Matter of A-B- involved a different asylum seeker from a different country who experienced different facts than this petitioner.  So in citing A-B- to reach a conclusion so at odds with the facts of this case, the BIA’s judges were signaling their choice of a specific policy objective over their duty to neutrally apply law to specific facts.

Among the facts the BIA chose to ignore was the opinion of an expert who drew “on more than three decades of research, writing, legal representation, and lawmaking” in support of her conclusion. The expert, Prof. Nancy Lemon of the Univ. of Cal. – Berkeley Law School, explained how all of the weapons at abusers’ disposal are “tied to social belief systems that ‘men are entitled to dominate and control women because the male sex is considered superior.’”  Prof. Lemon went into great detail in explaining the political nature of the mistreatment.  Of course, it mattered not to the Board.

In discussing this case, an esteemed colleague pointed to a decision that the same court issued more than three decades ago.  In 1987, in an opinion authored by Judge John T. Noonan, Jr., a conservative Reagan appointee, the Ninth Circuit concluded that a Salvadoran woman subjected to repeated sexual abuse and other violence by a sergeant in the Salvadoran military had been persecuted on account of her political opinion where the abuser threatened to falsely label her a “subversive if she refused to submit to his abuse.”1  In the words of Judge Noonan, the fact that the persecutor gave the asylum seeker “the choice of being subjected to physical injury and rape or being killed as a subversive does not alter the significance of political opinion…” The decision reversed the conclusion of the BIA that “the evidence attests to mistreatment of an individual, not persecution,” precisely the same finding the Board used more than three decades later in denying Ms. Rodriguez Tornes of her grant of asylum.

In 1993, Justice Samuel Alito, then sitting at the Third Circuit, wrote that “we have little doubt that feminism qualifies as a political opinion within the meaning of the relevant statutes.”2  28 years later, the Ninth Circuit cited Justice Alito’s words in Rodriguez Tornes, adding that it had reached the same conclusion in its own unpublished 1996 decision.3  These were obviously not the decisions of liberal judges forwarding a political agenda.  To the contrary, these judges were able to transcend political ideology by neutrally applying law to facts; this is what judges do.  As a result, the law of asylum has progressed to increasingly provide asylum protection to victims of domestic abuse.  Immigration Judges appointed by both Republican and Democratic administrations have followed suit, authoring well-reasoned decisions granting asylum in numerous cases of domestic abuse, including this one.

Yet over the same period of time, the BIA has stubbornly refused to budge from its 1980s position that domestic abuse is simply a personal matter not linked to a political opinion within society.  In the words of Jeff Sessions in Matter of A-B-, the vile abuse was simply due to the abuser’s “preexisting personal relationship with the victim.”4

When a mother feels compelled to begin abusing her five year old daughter to prepare her to obey her husband one day, can the inevitable spousal abuse that follows really be dismissed as just a personal matter?  And when the record contained Prof. Lemon’s evidence (because expert testimony is evidence) of “a correlation between patriarchal norms that support male dominance and violence against women by intimate partners,” what unsupported overconfidence did the BIA’s judges rely on in explaining that they know better?

The BIA decided this case during the Trump Administration.  For those hoping that the change in administration will usher in a change in the Board’s view, it bears noting that neither the Clinton nor Obama administrations brought about a sea change in the Board’s approach to domestic violence claims.  Under Clinton, the BIA issued Matter of R-A-,5 a precedent that essentially precluded the granting of asylum to domestic violence victims based on their membership in a particular social group.  The decision was vacated by then-Attorney General Janet Reno, who promised more enlightened regulations on the issue that never arrived.  Similar regulations were rumored to be in the works under Eric Holder, but again did not materialize.  The BIA’s one grudging concession to the political climate of the Obama era, Matter of A-R-C-G-, was later vacated by Jeff Sessions.  While the BIA discussed a second decision under Obama expanding on the narrow holding of A-R-C-G-, it too never came to be.

Based on that history, it seems safe to say that without drastic action by Attorney General Merrick Garland, the BIA will continue issuing the same denials for the same reasons as before.  For every individual such as Ms. Rodriguez Tornes who is able to succeed on appeal, there are countless more who merely end up as stratistics, deported to face more of the horrendous abuse that drove them here in the first place.  The Ninth Circuit recently had to correct the BIA’s determination that attempted gang rape did not constitute persecution,6 and last year, reversed the Board erroneous rejection of a domestic violence victim’s particular social group on the grounds that it contained a few too many words.7  The BIA continues to be composed of the exact same group of judges who issued each of those decisions.

It is the role of the BIA to reach fair decisions by applying the applicable law to the individual facts.  Doing so in the domestic violence context would require the Board to finally recognize opposition to systemic male oppression as a political opinion warranting asylum.  Instead, for decades the BIA has enforced the offensive, outdated message to women seeking protection from such abuse that “this is not their world.”  The time has come to finally put an end to this sad substitute for true administrative appellate review.

Notes:

  1. Lazo-Majano v. INS, 813 F.2d 1432 (9th Cir. 1987).
  2. Fatin v. I.N.S., 12 F.3d 1233, 1242 (3rd Cir. 1993).
  3. Moghaddam v. I.N.S., 95 F.3d 1158 (9th Cir. 1996) (unpublished).
  4. Matter of A-B-, 27 I&N Dec. 316, 339 (A.G. 2018).
  5. 22 I&N Dec. 906 (BIA 1999).
  6. Kaur v. Wilkinson, No. 18-73001, __ F.3d __ (9th Cir., Jan. 29, 2021).
  7. Diaz-Reynoso v. Barr, 968 F.3d 1070 (9th Cir. 2020).

Copyright 2021, Jeffrey S. Chase.  All rights reserved.

Republished by permission.

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

Different style, but the same message as I delivered yesterday about the BIA’s institutionalized racist misogyny and the strange tolerance that Attorney General Merrick Garland has exhibited to date for this type of grotesque judicial misconduct. 

https://immigrationcourtside.com/2021/04/06/%f0%9f%8f%b4%e2%80%8d%e2%98%a0%ef%b8%8fbias-misogynistic-anti-asylum-ignore-the-experts-the-evidence-approach-%f0%9f%a4%ae-rebuked-again-9th-cir-slams-bia-big-time-in-rodriguez/

And, this is on top of the astounding, largely self-inflicted 1.3 million case backlog and total dysfunction generated by the BIA’s failures combined with the “maliciously incompetent” effort by DOJ politicos and EOIR bureaucrats to disguise a “deportation railroad” as “administrative review!” Leaving aside all the legal travesties, the mal-administration and waste of public resources alone would be more than enough to require the immediate replacement of EOIR “upper (mis)management” and the entire BIA with qualified judicial professionals and professional judicial administrators.

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Jeffrey and I are hardly the first to expose the charade of “appellate review” at the BIA. Two decades ago, following the “Ashcroft Purge,” administrative scholar and former GOP House Counsel Peter Levinson published his seminal work “The Facade of Quasi-Judicial Independence In Immigration Appellate Adjudications” documenting the mockery of due process and legitimate judicial practices being foisted off on the public by DOJ politicos.

COURTSIDE HISTORY: LEST WE FORGET: THE “ASHCROFT PURGE” AT THE BIA IN 2003 DESTROYED THE PRETEXT OF JUDICIAL INDEPENDENCE AT EOIR FOREVER – HERE’S HOW! — Read Peter Levinson’s 2004 Paper: “The Facade Of Quasi-Judicial Independence In Immigration Appellate Adjudications”

In the two decades since, legislators, DOJ Officials, and Article III Judges have done their utmost to ignore and paper over the glaring constitutional and administrative disasters identified by Peter. Not surprisingly, during that time the BIA and the Immigration Courts have descended into a slimy mass of disastrous bias, injustice, and judicial and administrative incompetence unequaled in American Justice since the heyday of the First Era of Jim Crow. (We are now in the “New Era of Jim Crow.”)

Of course, we need an independent Article I Immigration Court as a matter of the highest national priority. But, it’s not on schedule to happen tomorrow, even though it should! In the interim, Judge Garland could fix lots of the festering problems in this system. I gotta wonder if and when he is going to wake up and pay attention to the “assembly line injustice” being cranked out by “his” Immigration Courts?

🇺🇸⚖️🗽Due Process Forever!

PWS

04-07-21

SPLIT 9TH STUFFS TRUMP’S SCHEME TO MISAPPROPRIATE MILITARY FUNDS FOR WALL: Kids Are In Crisis in Trump’s “Kiddie Gulag,” But Administration Scofflaws Defend Wasting Money On Political Boondoggle That Congress Properly Refused To Fund!

https://www.latimes.com/local/lanow/la-me-ln-trump-border-wall-military-funds-9th-circuit-20190703-story.html

Maura Dolan
Maura Dolan
Legal Reporter
LA Times

Maura Dolan reports for the LA Times:

Trump may not use military money for border wall, federal appeals court decides

MAURA DOLAN
REPORTING FROM SAN FRANCISCO

July 3 at 7:50 PM ET

A federal appeals court Wednesday upheld an injunction barring the Trump administration from using military funds to pay for a wall along the southern border.

In a 2-1 decision, a panel of the U.S. 9th Circuit Court of Appeals said Trump was likely to lose his appeal and the injunction by a district judge should remain in place.

After failing to win funding for the wall from Congress, Trump announced in February that he planned to divert $8.1 billion for the border wall from funds slated for military construction and other Department of Defense operations.

The Sierra Club and the Southern Border Communities Coalition sued, winning an injunction in late May. The Trump administration asked the 9th Circuit to block that order while the case is on appeal.

In rejecting the administration’s request, the 9th Circuit said using the military funds “violates the constitutional requirement that the executive branch not spend money absent an appropriation from Congress.

The public interest is “best served by respecting the Constitution’s assignment of the power of the purse to Congress,” the 9th Circuit said.

The order was signed by Judges Richard Clifton, appointed by President George W. Bush, and Michelle Friedland, an Obama appointee.

Ninth Circuit Judge N. Randy Smith, appointed by President George W. Bush, dissented.

Copyright © 2019, The Los Angeles Times

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

Basically, Trump tried to steal money Congress refused to give him and use it for a bogus political stunt — building a wall for political show that could have no real effect on legitimate law enforcement other than to enrich smugglers and kill some more innocent asylum seekers by forcing them to use smugglers to take them over a more dangerous spot or to tunnel, scale, or break through the wall.

For the record, Judge Randy N. Smith “tanked” on his oath of office and his Constitutional responsibilities to stop such nonsense. Fortunately, Judge Richard Clifton and Judge Michelle Friedland stood up for the Constitution and our right to have a Government that follows its own laws. 

Undoubtedly, there will be an appeal, so stay tuned. The Supremes are much more “marshmallowy” when comes to forcing Trump to operate within the Constitution. 

PWS

07-03-19

 

THE GIBSON REPORT — 03-04-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

THE GIBSON REPORT — 03-04-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

TOP UPDATES

 

Rand Paul Says He’ll Vote Against Trump’s Border Emergency, Likely Forcing A Veto

NPR: Senator Rand Paul of Kentucky says he’ll vote in favor of a resolution to terminate President Trump’s national emergency declaration with regards to the U.S.-Mexico border. Paul’s support means the resolution will likely pass the Senate with bipartisan support and could force the president to issue his first veto.

 

‘Remain in Mexico’ gets an expansion

Politico: A Homeland Security official alerted POLITICO’s Ted Hesson [on 2/28/19] that the Trump administration will today expand its “remain in Mexico” policy — which requires asylum seekers to stay in Mexico while awaiting resolution of their cases — to ports of entry in El Paso, San Diego, and Calexico, Calif. Olga Sánchez Cordero, Mexico’s interior minister, said Thursday that approximately 150 asylum seekers have thus far been returned to Mexico under the program. That’s a fraction of the tens of thousands who arrive at the border each month.

 

29 parents separated from their children and deported last year cross U.S. border to request asylum

WaPo: The group of parents quietly traveled north over the past month, assisted by a team of immigration lawyers who hatched a high-stakes plan to reunify families divided by the Trump administration’s family separation policy last year. The 29 parents were among those deported without their children, who remain in the United States in shelters, in foster homes or with relatives.

 

28 women may have miscarried in ICE custody over the past 2 years

AZ Rep: The delivery of a stillborn baby at an immigration detention center in Texas comes after the Trump administration ended an Obama-era policy against holding pregnant women in detention centers.

 

HHS docs show thousands of alleged incidents of sexual abuse against unaccompanied minors in custody

CNN: The Department of Health and Human Services received more than 4,500 complaints of sexual abuse against unaccompanied minors from 2014-2018, according to internal agency documents released Tuesday by Florida Democratic Rep. Ted Deutch.

 

Data from the Center for Migration Studies Shows Sharp Multiyear Decline in Undocumented Immigration

CMS: [T]he Center for Migration Studies of New York (CMS) reports that the US undocumented population has declined by one million since 2010; illegal entries have plummeted to historic lows; and, in recent years, only one third of newly undocumented residents entered this population by crossing the US-Mexico border.

 

Southern Poverty Law Center Launches ‘Immigrant Songs’ Campaign: Listen

Billboard: The Southern Poverty Law Center has launched a campaign to provide legal information and to “protect and advance immigrant rights” through song. “El Corrido de David y Goliat,” by Flor de Toloache, is the first single released as part of the SPLC’s Immigrant Songs campaign.

 

It’s so dangerous to police MS-13 in El Salvador that officers are fleeing the country

WaPo: There is no list in either El Salvador or the United States of Salvadoran police officers who have fled the country. But The Washington Post has identified 15 officers in the process of being resettled as refugees by the United Nations and six officers who have either recently received asylum or have scheduled asylum hearings in U.S. immigration courts. In WhatsApp groups, police officers have begun discussing the possibility of a migrant caravan composed entirely of Salvadoran police — a caravana policial, the officers call it.

 

Physicians for Human Rights Sends Letter Detailing the Health Risks for Infants in Detention

On February 28, 2019, Physicians for Human Rights sent a letter to DHS Secretary Kirstjen Nielsen regarding the inherent health risks for infants in detention. AILA Doc. No. 19022837

 

Immigration Courts’ Growing Reliance on Videoconference Hearings Is Being Challenged

AIC: In some parts of the country, it has long been the practice for detained immigrants to appear for their immigration court hearings via video teleconference (“VTC”), rather than in-person. This is especially the case for immigrants being held in remote detention centers, hours from the nearest immigration court. However, under the Trump administration, immigration courts are increasingly relying on VTC.

 

Brooklyn DA supports plan to give driver’s licenses to illegal immigrants

NYPost: There is already state legislation pending, and the Fiscal Policy Institute estimates 265,000 immigrants would be eligible to apply if the measure passes.

 

Americans’ immigration emergency: Their spouses could be deported or exiled if they seek green cards

PRI: Enough families have already been hurt by the law, with its mandatory “bars,” or exile, that can last 10 years, 20 years, even a lifetime, depending on the spouse’s immigration history, as the Center for Public Integrity has reported in multiple stories. But with Trump insisting there’s a “national emergency” on the southern border—despite record low crossings—these US citizens want to let their fellow Americans know that they’re suffering an emergency every day.

 

U.S. denied tens of thousands more visas in 2018 due to travel ban: data

Reuters: The U.S. State Department refused more than 37,000 visa applications in 2018 due to the Trump administration’s travel ban, up from less than 1,000 the previous year when the ban had not fully taken effect, according to agency data released on Tuesday.

 

40 Years After The Vietnam War, Some Refugees Face Deportation Under Trump

NPR: More than four decades after the Vietnam War brought waves of expatriates to the United States, the Trump administration wants to deport thousands of Vietnamese immigrants, including many refugees, because of years-old criminal convictions. U.S. officials have been working behind the scenes to convince the Vietnamese government to repatriate more than 7,000 Vietnamese immigrants with criminal convictions. They have all been ordered removed from the U.S. by a judge.

 

Human Smugglers Are Thriving Under Trump

Atlantic: Trump’s “zero tolerance” immigration policies have made America’s historically weak anti-smuggling efforts even weaker. Over the past two years, as smuggling networks have thrived, the Department of Homeland Security has shifted money and manpower away from more complex investigations to support the administration’s all-out push to arrest, detain, and deport immigrants here illegally.

 

Emails Show US Border Officials Didn’t Receive “Zero Tolerance” Guidance Until After The Policy Was Enacted

BuzzFeed: US border officials didn’t receive guidance from the Trump administration on how to implement its “zero tolerance” policy that led to separations of migrant families until after Department of Homeland Security Secretary Kirstjen Nielsen signed a memo enacting it, according to emails obtained by Democracy Forward through a Freedom of Information Act request.

 

When Trump declared national emergency, most detained immigrants were not criminals

WaPo: According to new U.S. Immigration and Customs Enforcement figures obtained by The Washington Post, the nation’s immigration jails were not filled with such criminals. As of Feb. 9, days before the president’s declaration, nearly 63 percent of the detainees in ICE jails had not been convicted of any crime.

 

He Exposed Abuse At A Florida Immigrant Detention Center. Now He’s In Prison

WLRN: Weeks after a documentary exposing injustices at a South Florida for-profit immigration detention center debuted at a national film festival, Claudio Rojas— the film’s inside source— was arrested by U.S. Immigration and Customs Enforcement in Miramar during his annual visa check-in, records show.

 

LITIGATION/CASELAW/RULES/MEMOS

 

Trump Administration Forced To Extend TPS Protections To More Than 250,000 Immigrants Due To Court Injunction

Newsweek: The Department of Homeland Security announced on Thursday that to comply with a court injunction it would extend the Temporary Protected Status it sought to terminate for hundreds of thousands of immigrants from El Salvador, Nicaragua, Haiti and Sudan.

 

Exasperated Federal Judge Pokes Holes In Trump Administration’s Refusal To Protect Young Immigrants

Gothamist: A federal judge in Manhattan heard arguments Monday on a class action case that could determine whether undocumented immigrants in New York between the ages of 18 and 21 can stay in the country legally if they’ve been abused or abandoned by a parent.

 

ICE Detention Center Says It’s Not Responsible for Staff’s Sexual Abuse of Detainees

ACLU: Although the employee pled guilty to criminal institutional sexual assault under Pennsylvania law, the defendants contend that they should not be liable for any constitutional violations. Their argument rests in part on their assessment that the sexual abuse was “consensual” and that they should be held to a different standard because the Berks Family Residential Center is an immigration detention facility rather than a jail or prison.

 

The Government Is Hiding Information About How It Deports People – This Lawsuit Seeks to Expose That

AIC: The lawsuit demands the Executive Office for Immigration Review and the Department of Justice release to the public information on how immigration court stays of removal are decided.

 

Judge grants citizenship to twin son of gay couple

AP: A federal judge in California ruled Thursday that a twin son of a gay married couple has been an American citizen since birth, handing a defeat to the U.S. government, which had only granted the status to his brother. The State Department was wrong to deny citizenship to 2-year-old Ethan Dvash-Banks because U.S. law does not require a child to show a biological relationship with their parents if their parents were married at the time of their birth, District Judge John F. Walter found.

 

At Least Nine Babies Are Being Detained by U.S. Immigration Authorities, a Complaint Says

Buzzfeed News reports that according to a complaint filed by AILA, the American Immigration Council, and CLINIC, at least nine infants under the age of 1, and some as young as 6 months, have been detained by ICE at a Texas detention center where they lack adequate medical care. AILA Doc. No. 19030136

 

ICE Releases Guidance on Migrant Protection Protocols

ICE released a memo providing guidance to impacted Enforcement and Removal Operations (ERO) field offices on implementation of the Migrant Protection Protocols. AILA Doc. No. 19022870

 

Presidential Proclamation on Declaring a National Emergency Concerning the Southern Border of the United States

President Trump issued a presidential proclamation on 2/15/19 declaring a national emergency along the southern border. (84 FR 4949, 2/20/19) AILA Doc. No. 19021539

 

USCIS Releases Q&As from Teleconference Discussing USCIS Intercountry Adoption Policy Guidance

USCIS provided background and effective dates, as well as Q&As, from the 1/22/19 teleconference on determining suitability of prospective adoptive parents for intercountry adoption policy guidance that USCIS issued on 11/9/18. AILA Doc. No. 19011400

 

USCIS Provides Q&As from Teleconference on N-648 Changes

USCIS provided the Q&As from the 2/12/19 teleconference discussing USCIS policy guidance on Form N-648, Medical Certification for Disability Exceptions. The Q&As covered the effective date, N-648 requirements, policy highlights, and more. AILA Doc. No. 19012835

 

USCIS to Publish Revised Form I-539 and New Form I-539A

USCIS announced that on 3/11/19, it will publish a revised Form I-539, Application to Extend/Change Nonimmigrant Status, and a new Form I-539A to replace the Supplement A in previous versions of Form I-539. Starting on 3/11/19, USCIS will only accept I-539s with a 2/4/19 edition date. AILA Doc. No. 19021137

 

USCIS Processing Delays Soared While Application Rates Fell

AILA Policy Counsel Jason Boyd highlights newly released USCIS data and shows how the new information “has cast an even harsher glare on the agency’s well-documented failure to process its caseload in a timely fashion.” AILA Doc. No. 19030137

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

 

Monday, March 4, 2019

Sunday, March 3, 2019

Saturday, March 2, 2019

Friday, March 1, 2019

Thursday, February 28, 2019

Wednesday, February 27, 2019

Tuesday, February 26, 2019

Monday, February 25, 2019

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

Thanks, Elizabeth!

 

PWS

03-05-19

HuffPost Politics: Trump’s Attacks on Federal Judges Continue to Draw Fire!

http://www.huffingtonpost.com/entry/blaming-judges-is-corrosive-says-a-judge-who-ruled-against-trump_us_58cbe793e4b0be71dcf40451

“HONOLULU (Reuters) – One of three federal appeals court judges who last month upheld a ruling that blocked U.S. President Donald Trump’s first try at a travel ban said on Thursday it was “corrosive to the justice system” when litigants attack judges for their decisions.

Judge Richard Clifton of the 9th U.S. Circuit Court of Appeals became the latest in a series of judges to draw criticism from Trump after Clifton and two colleagues refused to reinstate an executive order temporarily barring entry by people from seven Muslim-majority countries.

Shortly after the Feb. 9 ruling, Trump tweeted: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” He also told reporters that the ruling was “political.”

“It’s easy to blame the referee when you don’t like the result,” Clifton said in a speech to the Conference of Western Attorneys General, which is meeting in Honolulu.

“It is corrosive to the system when a disappointing result, or result disappointing to you, is responded to by blaming the referee,” said Clifton, who did not mention Trump by name.

. . . .

In an order issued late Wednesday related to Trump’s first travel ban challenge, a colleague of Clifton, U.S. Circuit Judge Jay Bybee, had words of his own for the invectives against members of the judiciary in these cases.

“The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse — particularly when they came from the parties,” Bybee wrote, declining to mention the president by name.

The judge, who was also appointed by Bush, added: “It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court.”

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

As pointed out in my blog yesterday, Judge Bybee was actually filing a dissenting opinion supporting the President’s authority to issue “Travel Ban 1.0.” Even so, he was offended by the President’s attacks on his Federal Judicial colleagues. Never good when even those who agree with your legal position are put off by your obnoxious personal conduct.  Judge Bybee also reinforced one of my points — judges at any level never appreciate comments on the merits of a case by a party.

Here’s the link to my post from yesterday:

http://wp.me/p8eeJm-uZ

 

PWS

03/17/17

Trump Mulls Travel Ban Options — Rewrite of Exec Order Possible — Might Forego Request For Supremes’ Intervention Now!

https://www.washingtonpost.com/world/national-security/white-house-considers-rewriting-trumps-immigration-order/2017/02/10/ddcf5a6a-efb5-11e6-b4ff-ac2cf509efe5_story.html?hpid=hp_rhp-top-table-main_trumpban-408pm%3Ahomepage%2Fstory&utm_term=.c2de193b26a6

From the Washington Post:

“President Trump said Friday that he is considering rewriting his executive order temporarily barring refugees and citizens of seven Muslim-majority countries from entering the country, indicating that the administration may try to quickly restore some aspects of the now-frozen travel ban or replace it with other measures.

Trump told reporters aboard Air Force One that he would probably wait until Monday or Tuesday to take any action, and White House Chief of Staff Reince Priebus said several options — including taking the case to the Supreme Court — were still on the table.

Trump hinted that the ongoing legal wrangling might move too slowly for his taste, though he thought he would ultimately prevail in court.”

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

Many commentators have suggested that the Administration could have avoided most of the constitutional issues that have bothered the courts by simply making the order applicable solely to those abroad who have not been admitted to the U.S. as refugees or with visas.

The Solicitor General’s Office at the DOJ (even though there is no appointed “SG” for now, there are plenty of career “Supreme Court pros” on the staff) doesn’t like to “look bad” before the Supreme Court. Normally, the Solicitor General must approve and sign off on all Government filings before the Supreme Court.  It’s possible that the SG’s Office thinks that the Administration’s case is unlikely to prevail in its current posture, and is therefore trying to persuade the Administration not to file for Supreme Court review right now.

PWS

02/10/17

BREAKING: En Banc Request From 9th Circuit Judge In State Of Washington v. Trump

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED

FEB 10 2017

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

STATE OF WASHINGTON and STATE OF MINNESOTA,

Plaintiffs-Appellees,

v.

DONALD J. TRUMP, President of the United States; et al.,

Defendants-Appellants.

No. 17-35105

D.C. No. 2:17-cv-00141 Western District of Washington, Seattle

ORDER

THOMAS, Chief Judge and En Banc Coordinator:
A judge on this Court has made a sua sponte request that a vote be taken as

to whether the order issued by the three judge motions panel on February 9, 2017, should be reconsidered en banc. A sua sponte en banc call having been made, the parties are instructed to file simultaneous briefs setting forth their respective positions on whether this matter should be reconsidered en banc. The briefs should be filed on or before 11:00 a.m., Pacific time, on Thursday, February 16. The supplemental briefs shall be filed electronically and consist of no more than 14,000 words. See General Order 5.4(c)(3).

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What does this mean? Well, having spent eight years on a “collegial appellate court” I can think of three possibilities.

First,  a Judge may request en banc consideration when he or she thinks the panel decision went against the views of the majority of 9th Circuit Judges and wants the full Court to reverse it. Given that the panel that heard Washington v. Trump was fairly representative of the composition of the 9th Circuit, that seems unlikely here.

A second possibility is that a Judge wants the full Court to “put its weight” behind the panel decision, given the importance of the issue. But, because the 9th Circuit has a somewhat diverse makeup, with Judges often disagreeing, it seems unlikely that a majority of Judges would see an advantage to the court in having a potentially “split” en banc ruling in place of the unanimous panel ruling.

A third possibility, and  the one that I think is most likely, is that one or more Judges disagree with the panel decision and want to go on record with that disagreement.  While there seems to be little chance that a majority of the 9th Circuit Judges will vote to hear the case en banc, the denial of the en banc request would give those Judges who disagree with the panel a chance to write a public dissent from the decision to deny rehearing en banc.

We might or might not find out. Often, en banc reconsideration is simply denied without any reasons being given.

PWS

02/10/17

Matt Zapotsky in WashPost: “7 key take-aways from the court’s ruling on Trump’s immigration order”

https://www.washingtonpost.com/news/post-nation/wp/2017/02/09/7-key-takeaways-from-the-courts-ruling-on-trumps-immigration-order/?hpid=hp_rhp-top-table-main_trumpban-takeaways-930pm%3Ahomepage%2Fstory&utm_term=.64ae82747f5

PWS

02/10/17

BREAKING: 9th Circuit Panel Unanimously Reject’s Administration’s Request For Stay Of Travel Ban — Read The Complete Decision Here!

Read-the-9th-Circuit-s-opinion-on-the-travel-ban

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I think it will be hard for the Administration to prevail at this stage.  I’d be surprised if either the full (“en banc”) 9th Circuit or the Supreme Court want to get involved at the TRO stage.

President Trump Tweets “See You In Court.” (Hasn’t that line been used before?)  But, as indicated above, I’m not sure that the Supreme Court (particularly with only 8 Justices) will want to intervene at this point. The Supremes did take the Obama Immigration Executive Order case at a preliminary stage; but they were unable to resolve it on the merits, affirming the lower court’s injunction by an evenly divided Court. Not clear why the Court would be in a better position to resolve this one. But, we’ll find out shortly.

PWS

02/09/17

Summaries Of 9th Cir. Travel Ban OA & Judicial Bios From WSJ

https://www.wsj.com/articles/donald-trumps-immigration-action-in-courts-hands-1486491207

DEVLIN BARRETT, BRENT KENDALL and ARUNA VISWANATHA report in today’s WSJ:

“An appeals court pressed a Justice Department lawyer Tuesday on whether President Donald Trump’s executive order on immigration is discriminatory, while also pushing an attorney for the two states fighting the order to explain how it could be unconstitutional to bar entry of people from terror-prone countries, the Justice Department lawyer arguing on behalf of the administration, urged the appeals court to remove a lower-court injunction on the order, arguing that the court shouldn’t second-guess the president’s judgment when it came to a question of national security.

The executive order, Mr. Flentje told a three-judge panel of the San Francisco-based Ninth U.S. Circuit Court of Appeals, struck a balance between security concerns and the practice of allowing people to enter the country.

“The president struck that balance, and the district court’s order has upset that balance,” he said. “This is a traditional national security judgment that is assigned to the political branches and the president and the court’s order immediately altered that.’’

The oral arguments on whether to reinstate some, all, or none of President Donald Trump’s executive order on immigration represented a crucial test in the fast-moving legal battle over White House efforts to restrict entry into the U.S. The Jan. 27 order suspended U.S. entry for visitors from seven predominantly Muslim countries for at least 90 days, froze the entire U.S. refugee program for four months and indefinitely banned refugees from Syria. The administration argues the action was needed to keep terrorists from domestic soil.

The president weighed in on Twitter on Wednesday morning: “If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!”

The legal clash, which is also playing out in other courts around the country, represents a remarkable test of the powers of a new president determined to act quickly and aggressively to follow up on his campaign promises. Mr. Trump, who promised repeatedly on the campaign trail to tighten what he called lax immigration policies, issued his executive order a week after taking office, generating widespread protests as well as plaudits and setting off an immediate debate over the extent of executive branch authority.”

. . . .

The court isn’t making a final determination on the legality of Mr. Trump’s order for now. Instead, it must decide what immigration rules will be in effect during the coming months while court proceedings on the substance of the president’s restrictions continue.”

Read the WSJ’s bios of the three U.S. Court of Appeals Judges on the panel: Judge William C. Canby Jr., Judge Richard Clifton, Judge Michelle Friedland:

https://www.wsj.com/articles/three-federal-judges-will-decide-on-donald-trump-travel-ban-1486488393

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This one still seems “too close to call.”  There are substantial arguments on both sides. Courts generally do not like to interfere with the authority of the President in the fields of immigration, national security and foreign policy. On the other hand, appellate courts are usually very reluctant to interfere with trial court proceedings at the very preliminary TRO stage. While this might eventually end up in the Supreme Court, as most commentators assume, I’m skeptical it will go there any time soon, given the Supreme’s current short-handed configuration.

PWS

02/08/17