The “Gibson Report” For July 24, 2017 — Administration Seeks To Warehouse Asylum Seekers In Mexico

 Gibson Report, JUly 24, 2107

The first item in Elizabeth’s report for this week is certainly worthy of note:

Administration to Release Regulations Requiring Asylum Seekers to Remain in Mexico

HRF: “[T]he administration indicated that it plans to issue regulations to advance the provision in President Trump’s January 25 executive order that seeks to remove immigrants “to the territory from which they came” while they await immigration court hearings.”

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All sorts of potential issues with this one. If they are Mexicans, how can you send them back to the country from which they seek asylum while awaiting an asylum hearing? And, if they are not Mexicans, how can you force Mexico to accept non-Mexican nationals back into its territory?

PWS

07-25-17

U.S. District Judge Mark Goldsmith Halts Iraqi Removals

http://www.latimes.com/nation/la-na-iraqi-deportations-20170724-story.html

Melissa Etehad reports in the LA Times:

“A federal judge in Detroit has temporarily halted the deportations of more than 1,400 Iraqi immigrants, ruling that they deserve to have their cases play out in court because of the risk that they could be targeted for persecution in Iraq.

In a ruling Monday, U.S. District Judge Mark Goldsmith said the immigrants faced a “compelling confluence of extraordinary circumstances” and that the government’s attempt to rush their deportations was a violation of their rights.

Many of the Iraqis arrived in the U.S. as children as far back as the 1980s and have few ties to their native country. The majority are members of religious or ethnic minorities such as Chaldean Christians or Kurds, who have been subjected to torture and other forms of repression in Iraq.

They face deportation because they had overstayed visas or committed crimes, typically misdemeanors such as driving under the influence of alcohol.

They had been allowed to stay in the U.S. because for decades Iraq had refused to take them back. But in March, the Trump administration reached a deal with the Iraqi government to accept them and in June began rounding them up in immigration raids.

As of July 1, 234 had been arrested and detained around the country, including large numbers in Detroit, home to thousands of Chaldean Christians.

Returning the immigrants to Iraq would in some cases be akin to issuing a death sentence, according to civil rights and immigrant rights groups that filed a lawsuit in Detroit federal court in late June to block deportations of those immigrants who had been living in Detroit.

Many had been transferred multiple times to various detention facilities, making it harder for them to get legal representation and prepare their cases, advocates said.”

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Another defeat for the Trump Administration’s gonzo enforcement agenda.

PWS

07-25-17

NOT ALL DHS AGENTS ON BOARD WITH GONZO ENFORCEMENT POLICIES — Current Atmosphere Breeds Disrespect For Migrants! — Detaining Kids “Because We Can” — Consciously and Irresponsibly Overloading The U.S. Immigration Courts “Because We Can” — “Targeting The Most Vulnerable People, Not The Worst!”

http://www.newyorker.com/news/news-desk/a-veteran-ice-agent-disillusioned-with-the-trump-era-speaks-out

Jonathan Blitzer writes in the The New Yorker:

“The agent went on, “The whole idea is targeting kids. I know that technically they meet the legal definition of being adults. Fine. But if they were my kids travelling in a foreign country, I wouldn’t be O.K. with this. We’re not doing what we tell people we do. If you look next month, or at the end of this month, at the people in custody, it’s people who’ve been here for years. They’re supposed to be in high school.”
The agent was especially concerned about a new policy that allows ice to investigate cases of immigrants who may have paid smugglers to bring their children or relatives into the country. ice considers these family members guilty of placing children “directly in harm’s way,” as one spokeswoman recently put it, and the agency will hold them “accountable for their role in these conspiracies.” According to ice, these measures will help combat “a constant humanitarian threat,” but the agent said that rationale was just a pretext to increase arrests and eventually deport more people. “We seem to be targeting the most vulnerable people, not the worst.” The agent also believes that the policy will make it harder for the government to handle unaccompanied children who show up at the border. “You’re going to have kids stuck in detention because parents are too scared of being prosecuted to want to pick them up!” the agent said.
U.S. immigration courts are facing a backlog of half a million cases, with only a limited number of judges available to hear them and issue rulings. “We still have to make decisions based on a responsible use of the government’s resources—you can’t lock everybody up,” the agent said. “We’re putting more people into that overburdened system just because we can. There’s just this school of thought that, well, we can do what we want.”
Before this year, the agent had never spoken to the media. “I have a couple of colleagues that I can kind of talk to, but not many,” the agent said. “This has been a difficult year for many of us.” These people, not just at ice but also at other federal agencies tasked with enforcing the nation’s immigration laws, are “trying to figure out how to minimize the damage.” It isn’t clear what, exactly, they can do under the circumstances. “Immigration is a pendulum—it swings to the left sometimes, or it swings to the right,” the agent told me last week. “But there was a normal range. Now people are bringing their own opinions into work.” In the agent’s view, ice is a changed agency.
“I like predictability,” the agent said. “I like being able to go into work and have faith in my senior managers and the Administration, and to know that, regardless of their political views, at the end of the day they’re going to do something that’s appropriate. I don’t feel that way anymore.”

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Read the complete article at the link.

Sure sounds like the “Gonzo Apocalypto” White Nationalist agenda with a extra touch of arrogance, cruelty, and inhumanity thrown in. Nice “culture of hate” that Kelly is apparently building over at DHS. The reputation of Gen. Kelly who is permitting this gross abuse of authority and resources on his watch should continue to deteriorate.

PWS

07-25-17

BETH FERTIG AT NPR: “ADR” Moves Into High Gear, Devastating U.S. Immigration Courts, As Half Of NY Immigration Court “Goes Dark” — U.S. Immigration Judges Become Adjuncts Of DHS Border Enforcement Program — Dockets At Interior Courts “Orbited Into Never-Never Land!”

ADR = “Aimless Docket Reshuffling”

http://www.wnyc.org/story/even-more-immigration-judges-are-reassigned-trumps-crackdown-border/

Beth reports for WNYC/NPR:

“In its crackdown on illegal immigration, the Trump administration is moving an increasing number of immigration judges closer to the border with Mexico. The practice is so widespread that half of New York City’s 30 immigration judges have been temporarily reassigned for two-to-four weeks at a time between early April and July.

The judges have been sent to hear deportation cases in Louisiana, California, New Mexico and Texas, along with Elizabeth, New Jersey, where there’s a detention center. In June, WNYC reported that at least eight of New York City’s immigration judges have been temporarily moved to Texas and Louisiana since March. New information obtained from a Freedom of Information Act request revealed the number to be much higher.

All this reshuffling causes cases to get delayed for months. And New York City’s immigration court already has a backlog of more than 80,000 cases. People wait an average of more than two years go to court to fight against deportation. Some might welcome a prolonged wait. But immigration lawyer Edain Butterfield said her clients get anxious because they’re ready to make their case, when they suddenly learn their judge has had to postpone.

“They don’t know if their judge is going to stay on their case,” she said. “They sometimes have to get new documents, ask for another day off from work, ask their family to take another day off from work.”

David Wilkins, an attorney with Central American Legal Assistance in Brooklyn, said he’s representing a woman seeking asylum whose hearing was recently postponed almost a year — until the summer of 2018. He said she left her children in her home country back in 2012 because of domestic abuse. “It’s extremely difficult for her,” he said. “She’s been separated from her family for so long to sort of live with the constant uncertainty of not knowing what’s going to happen with her immigration proceeding.”

Judges from New York City aren’t the only ones being moved. According to the latest data obtained by WNYC, 128 of the nation’s approximately 325 immigration judges have been shuffled to other locations between early April and the middle of July. Many of those judges come from Los Angeles, Chicago and San Francisco. These assignments, known as details, last for two or four weeks. Some judges have been shifted around multiple times.

The data does not include all judges assigned to hear cases in other locations by video teleconference. A couple of judges in New York City were seeing cases by video at a Texas detention center in May and June.

The reassignments are expected to continue until early 2018, but the Executive Office for Immigration Review, which runs the immigration courts, would not reveal the schedule beyond July.

In April, Attorney General Jeff Sessions announced that all adults crossing the Mexican border would be sent to detention. To support the mission, he said, the Department of Justice had “already surged 25 immigration judges to detention centers along the border.”

Dana Leigh Marks, president of the National Association of Immigration Judges, said her union remains very concerned about the situation.

“The temporary assignment of judges to border courts creates increasing backlogs in the dockets they leave behind in their home courts and may not be conducive to the overall reduction of our burgeoning caseload.”

Nationally, the backlog has surged to more than 600,000 cases and observers believe that number is growing partly because of the Trump administration’s immigration policies.

Moving judges south might sound counterintuitive because illegal border crossings have actually dropped since President Trump took office. But Bryan Johnson, an immigration lawyer on Long Island, has a theory about why more judges are needed down south.

“The people that are deported will be deported in less time,” he explained. “And that is the message they want to send people in the home countries from where the migrants come from.”

There is no guaranteed right to counsel in immigration court, and experts said there are few low-cost immigration attorneys near the border — making it even easier to swiftly deport someone because they are not likely to have representation.

The Executive Office for Immigration Review did not respond to a request for comment. However, the agency has said it is hiring more judges.”

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Get the accompanying audio/video report at the link.

David Wilkins from the Central American Legal Defense Center in Brooklyn, quoted in Beth’s article, is one of my former Georgetown Law Refugee Law & Policy students, a former CALS Asylum Clinic participant, and a former Legal Intern at the Arlington Immigration Court. David was also an Immigrant Justice Crops fellow. He is a “charter member” of the “New Due Process Army.” Congratulations David, we’re all proud of what you are doing!

Attorney Bryan Johnson simply restates the obvious. Under A.G. Jeff “Gonzo Apocalypto” Sessions, the U.S. Immigration Courts are once again being used as an arm of DHS Enforcement rather than a protector and dispenser of constitutional due process. Nobody in their right mind seriously thinks that Sessions is “surging” Immigration Judges to the border to grant more bonds, reverse more “credible fear” and “reasonable fear” denials, or grant more asylum, withholding of removal, or relief under the CAT.

No, the “surge” program is clearly all about detention, coercion, denial, deportation and sending a “don’t come, we don’t want you” message to folks living in fear and danger in countries of the Northern Triangle of Central America. In other words, you might as well cooperate with, support, and/or join the gangs and narco-traffickers — the U.S. has absolutely no intention of saving your life! Nice message!

Don’t be too surprised when multinational gangs and narco-traffickers eventually seize political power in Central America (they have already infiltrated or compromised many government functions). And, we will have sent away the very folks who might have helped us stem the tide. At the same time, we are destroying the last vestiges of due process in the U.S. Immigration Courts, leaving hundreds of thousands of cases and lives “up in the air” and our justice system without a fair and effective mechanism for deciding and reviewing immigration cases. At some point, somebody is going to have to fix this mess. But, you can be sure it won’t be the Trump (“We Don’t Take Responsibility For Nothin'”) Administration.

PWS

07-24-17

 

MY MOST RECENT SPEECHES: “MY LIFE & TIMES” — CATHOLIC LEGAL IMMIGRATION NETWORK (“CLINIC”), July 18, 2017; “JOIN THE ‘NEW DUE PROCESS ARMY’ — FIGHT FOR DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS” — HUMAN RIGHTS FIRST, JULY 19, 2017

On Tuesday July 18, 2107, I gave a luncheon address to interns and staff at the Catholic Legal Immigration Network (“CLINIC”) in Silver Spring, MD. My speech entitled “My Life & Times” is at this link:

MY LIFE

On Wednesday, July 19, 2017, I delivered the a luncheon address that was part of the Frankel Lecture Series at Human Rights First in Washington, D.C. & New York, NY (by televideo). My speech entitled “Join The ‘New Due Process Army’ — Fight For Due Process In The United States Immigration Courts” is at this link:

AMERICA’S REAL IMMIGRATION CRISIS

Both speeches are also reproduced in the left menu of immigrationcourtiside.com.

 

HUMAN SMUGGLING TRAGEDY IN SAN ANTONIO — 9 DIE, 17 OTHERS SUFFER LIFE-THREATENING INJURIES!

https://www.washingtonpost.com/news/post-nation/wp/2017/07/23/texas-tragedy-8-dead-including-children-found-locked-in-hot-truck-in-suspected-smuggling-case/?hpid=hp_rhp-top-table-main_pn-texas-9am-retest%3Ahomepage%2Fstory&utm_term=.6a18d3474065

Eva Ruth Moravec and Todd C. Frankel report in the Washington Post:

It began with a desperate request for water and a Walmart employee’s suspicions about a tractor-trailer parked outside. That led officials on Sunday to discover at least 39 people packed into a sweltering trailer, several of them on the verge of death — their skin hot to the touch, their hearts dangerously racing — and eight men already dead. Another would die later at a hospital.

Authorities think they found an immigrant smuggling operation just 2½ hours from the Mexican border that ended in what San Antonio Police Chief William McManus described as a “horrific tragedy.” The victims, as young as 15, appeared to have been loaded like cargo into a trailer without working air conditioning during the height of the Texas summer. It was unknown how long they had been in the trailer or where their journey started, but 30 of the victims were taken to area hospitals and 17 had life-threatening injuries. Federal authorities said the victims were “undocumented aliens.”

Reyna Torres, consul of Mexico, confirmed in Spanish that Mexican nationals are among those dead and in the hospitals and said the consulate is interviewing the survivors.

City Fire Chief Charles Hood said some of the victims appeared to have suffered severe heatstroke, with heart rates soaring over 130 beats per minute. In the worst cases, Hood said, “a lot of them are going to have some irreversible brain damage.”

Even more people were thought to have been inside the trailer before help arrived, police said. Survivors at six area hospitals told investigators that up to 100 individuals were originally in the tractor-trailer.

Walmart surveillance video showed cars stopping and picking up people as they exited the back of the trailer. But suspicions were not raised until an employee noticed a disoriented person, who asked for water. The employee then called police, authorities said. Then, a chaotic scene unfolded outside the Walmart on the city’s southwest side, as ambulances and police cars arrived and people were carried away, leaving behind shoes and personal belongings strewn across the asphalt and trailer floor.

The truck’s driver, identified as James M. Bradley, 60, of Clearwater, Fla., has been arrested and is expected to be charged Monday morning, said the U.S. attorney’s office for the Western District of Texas.

The grisly discovery in San Antonio comes as the Trump administration is calling on Congress to increase funding for border security and to expand the wall on the southern border with Mexico.

It also illuminates the extreme risks immigrants face as they attempt to elude border agents in the searing summer heat. Some try to slip through legal checkpoints undetected, while others sneak illegally across the border. Often, they are fleeing violence and poverty in Latin America, advocates say.

Many have died attempting to enter the United States, drowning in the Rio Grande, lost in the desolate ranch lands of south Texas, or collapsing from exhaustion in the Arizona desert.

Two weeks ago, Houston police discovered 12 immigrants, including a girl, who had been locked for hours inside a sweltering box truck in a parking lot, banging for someone to rescue them. Three people were arrested. A Harris County prosecutor said the migrants were at imminent risk of death.

In May, border agents discovered 18 immigrants locked in a refrigerated produce truck, with the temperature set at 51 degrees. Passengers were from Latin America and Kosovo.

One of the deadliest smuggling operations occurred in 2003, when 19 people died after being discovered in an insulated trailer abandoned at a truck stop in Victoria, Tex. The truck driver in that case, Tyrone M. Williams, was sentenced to nearly 34 years in prison.

. . . .

Later Sunday, moments after Mass ended at the historic San Fernando Cathedral, two dozen people held a gathering in Main Plaza to show their support for immigrants. A handful of people made speeches­ and said prayers in Spanish and English, using a megaphone, to a crowd of about 50 people. Children played in the splash pads nearby while adults wandered in and out of the crowd, many taking photographs and videos.

“Hold your family extra tight tonight,” said Barbie Hurtado, the statewide organizer for ­RAICES, which organized the event, “and keep the people that lost their lives in your thoughts, in your prayers.”

Rep. Joaquin Castro (D-Tex.), a San Antonio native, addressed attendees at the end of the hour-long service.

“This represents a symptom of a broken immigration system that Congress, of which I am a part, has had the chance to fix but has not,” he said. “That’s a colossal failure that has a human cost.”

Another San Antonio native, Debbie Leal-Herrera, 55, said she was in town visiting from New Mexico this week and wanted to come to the plaza because “it touches­ me as a Hispanic.”

Leal-Herrera, an elementary school teacher, said she knows several people who have immigrated to the United States illegally and has taught many students whose parents are undocumented.

“It reminds me of how much we truly take for granted,” she said. “What a beautiful gift it is to be an American.”

Advocates for immigrants in Texas are still reeling from the recent passage of the tough new immigration law, set to take effect Sept. 1. The deaths marked yet another blow.

Maria Victoria De la Cruz, who is originally from Mexico, publicly urged federal officials not to deport the immigrants who were found Sunday.

“As an immigrant, I feel destroyed,” she told the group in Spanish. “It’s not fair to return them to the place they have fled.”

During the vigil, a somber group quietly approached the consul from Mexico to ask about a relative. Juan Jose Castillo, who said he is from the Mexican state of Zacatecas but lives in the United States, said he was relieved that his 44-year-old brother was among the survivors.

“He came out of necessity,” Castillo said in Spanish. “It’s very bad.”

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Read the full story at the link.

One way of saving some lives: reform the immigration system to 1) allow more individuals to immigrate legally, and 2) provide full due process adjudications of asylum and other claims for protection under U.S. law, with reasonable access to counsel and no detention unless required by individualized circumstances, to individuals who present themselves at the border. This would encourage individuals who seek to to migrate to or seek refuge in the U.S. to do so in an orderly fashion, with complete screening, through our legal system.

Militarizing the border and creating a detention empire might or might not reduce undocumented migration in the long run. But three things are certain: 1) smuggling fees will go up; 2) methods used by smugglers will become more risky; and 3) more individuals will die attempting to enter the U.S.

PWS

07-21-17

 

 

NEW PRECEDENT: BIA FINDS THAT SOLICITING AN UNDERCOVER POLICE OFFICER COUNTS AS SOLICITING A “MINOR” UNDER ADAM WALSH ACT — MATTER OF IZAGUIRRE, 27 I&N DEC. 67 (BIA 2017)

https://www.justice.gov/eoir/page/file/983601/download

BIA Headnote:

“An offense may be a “specified offense against a minor” within the meaning of section 111(7) of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, 592, even if it involved an undercover police officer posing as a minor, rather than an actual minor.”

BIA PANEL: Vice Chair/Appellate Immigration Judge Adkins-Blanc; Appellate Immigration Judges Guendelsberger and Mann

OPINION BY: Judge Ana L. Mann

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PWS

07-22-17

NORTHERN VIRGINIA PASTOR CAUGHT UP IN DHS WEB OF CRUEL, INDISCRIMINATE, & WASTEFUL ENFORCEMENT — WHILE SON FIGHTS FOR OUR COUNTRY IN AIR FORCE, GEN. KELLY & CO. PLAN TO SHOW APPRECIATION BY DEPORTING HIS FATHER!

http://www.nbcwashington.com/news/local/ICE-Detains-Northern-Virginia-Pastor-435897973.html

NBC Northern Virginia Bureau Chief Julie Carey reports:

“Faith groups around the Commonwealth are mobilizing to support a Northern Virginia pastor who may soon be deported.

Pastor Juan Gutierrez typically leads a small service of about 10 to 20 members at his home every Saturday in Dumfries, Virginia. But on Saturday, that number is expected to grow for a day-long vigil in support of his family.

Gutierrez went to the Immigration and Customs Enforcement Office for his usual check-in in late June, when he was suddenly taken into custody.

“I say why? He do everything like the rules say,” Gutierrez’s wife Aurelia Sicha said. “I was really sure surprised. I started to cry.”

Gutierrez came to the U.S. from Peru in 2002 with a visa to play music. Sicha, who is a U.S. citizen, became pregnant and he stayed to help care for their family.

ICE is now enforcing an order of removal Gutierrez received in 2012.

“I understand my husband broke the rules of this country because he’s here without the visa, but he’s a good man. Never he do [anything] wrong. He’s a pastor. He’s a preacher. The word of God,” Sicha said.

An ICE official confirmed to News4 that Gutierrez does not have a criminal record, writing in a statement, “As DHS Secretary Kelly and Acting ICE Director Homan have stated repeatedly, ICE prioritizes the arrest and removal of national security and public safety threats; however, no class or category of alien in the United States is exempt from arrest or removal.”

The couple has a son in the U.S. Air Force and a 13-year-old daughter.”

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See Julie’s video report, which also appeared on NBC 4 locally at the link.

I have pointed out that Kelly’s once sterling reputation will end up in the trash bin unless he starts showing some backbone and standing up to the arbitrary and wasteful enforcement program espoused by the Trump White Nationalists and some (but not all) of his own agents. Good law enforcement is not just an exercise in keeping the line agents happy, any more than leading a successful military operation is just about keeping the troops happy. It’s about using limited resources wisely, humanely, and with some rational purpose in mind to achieve some legitimate strategic goal. Arbitrarily enforcing a broken and unworkable law does none of the foregoing. So far, Kelly has come up disturbingly short on almost all accounts.

PWS

07-21-17

 

7TH FINDS BIA MISAPPLIED SUPREME’S MONCRIEFFE DECISION — IL MARIHUANA CONVICTION NOT DRUG TRAFFICKING CRIME — MING WEI CHEN V. SESSIONS

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D07-20/C:17-1130:J:Wood:aut:T:fnOp:N:1997576:S:

“The Board erred by reading Moncrieffe as if that decision interpreted the CSA’s term “small amount.” Nothing in Moncrieffe supports the conclusion that the possession of a tad more than 30 grams of marijuana—the lowest amount punishable under 720 ILCS § 550/5(d)—can never be punished as a federal misdemeanor. The Board erred as a matter of law in this respect, when it found that Chen’s conviction under that provision qualifies as an aggravated felony.

We GRANT the petition for review and remand to give the Board the opportunity to decide whether to exercise its discretion to grant cancellation of removal.”

PANEL:

WOOD, Chief Judge, and BAUER and FLAUM, Circuit Judges.

OPINION BY: Chief Judge Wood

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Will the BIA, the DOJ, and the DHS ever get the Supreme’s message on trying to expand the reach of the aggravated felony provisions to crimes that really aren’t aggravated, and sometimes aren’t even felonies?

PWS

07-21-17

 

GONZO MIGHT BE NEXT TO GO AFTER NEW BOMBSHELL REVELATIONS CAST FURTHER DOUBT ON HIS ALREADY SHAKY CREDIBILITY!

https://www.washingtonpost.com/world/national-security/sessions-discussed-trump-campaign-related-matters-with-russian-ambassador-us-intelligence-intercepts-show/2017/07/21/3e704692-6e44-11e7-9c15-177740635e83_story.html?hpid=hp_rhp-top-table-high_sessions-7pm%3Ahomepage%2Fstory&utm_term=.3ade0f8bbe22

Adam Entous, Ellen Nakashima and Greg Miller report in the Washington Post:

“Russia’s ambassador to Washington told his superiors in Moscow that he discussed campaign-related matters, including policy issues important to Moscow, with Jeff Sessions during the 2016 presidential race, contrary to public assertions by the embattled attorney general, according to current and former U.S. officials.

Ambassador Sergey Kislyak’s accounts of two conversations with Sessions — then a top foreign policy adviser to Republican candidate Donald Trump — were intercepted by U.S. spy agencies, which monitor the communications of senior Russian officials both in the United States and in Russia. Sessions initially failed to disclose his contacts with Kislyak and then said that the meetings were not about the Trump campaign.

One U.S. official said that Sessions — who testified that he has no recollection of an April encounter — has provided “misleading” statements that are “contradicted by other evidence.” A former official said that the intelligence indicates that Sessions and Kislyak had “substantive” discussions on matters including Trump’s positions on Russia-related issues and prospects for U.S.-Russia relations in a Trump administration.

Sessions has said repeatedly that he never discussed campaign-related issues with Russian officials and that it was only in his capacity as a U.S. senator that he met with Kislyak.

“I never had meetings with Russian operatives or Russian intermediaries about the Trump campaign,” Sessions said in March when he announced that he would recuse himself from matters relating to the FBI probe of Russian interference in the election and any connections to the Trump campaign.

Current and former U.S. officials said that assertion is at odds with Kislyak’s accounts of conversations during two encounters over the course of the campaign, one in April ahead of Trump’s first major foreign policy speech and another in July on the sidelines of the Republican National Convention.

The apparent discrepancy could pose new problems for Sessions at a time when his position in the administration appears increasingly tenuous.”

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“Contradicted by the evidence.” Hmmm, that seems to be the definition of “not credible” if not outright perjury. If Sessions were a migrant pleading for his life in one of his Immigration Courts, he would long ago have been sent packing based on his misleading statements and highly implausible explanations. And, don’t forget that this is a dude who has been peddling the White Nationalist agenda of lies and misrepresentations about immigrants and denying their fundamental contributions to America’s greatness, not to mention their fundamental humanity and rights, for years. He’s also squandering taxpayer dollars every day by picking unnecessary fights with states and localities trying to straighten out the shambles that Sessions and his cohorts have made out of immigration enforcement policy. He’s undone years of progress on voting rights, race relations, policing, forensic science, private prisons, transgender tolerance, prosecutions of minor crimes, sentencing, and protection of property rights, in addition to accelerating the destructions of due process in the U.S. Immigration Courts.

About the only decent thing he has done since assuming office has been, under pressure, properly to recuse himself from the Russia investigation. But, that single exercise of appropriate judgement under the law has gotten him in trouble with his Boss who was counting on a complete regime of lawlessness at the DOJ.

PWS

07-21-17

9th Cir. Remands Reasonable Fear Denial In Reinstatement Case — VALENCIA MARTINEZ V. SESSIONS (Published)

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/20/14-70339.pdf

“The government does not offer any argument on the merits of this petition; therefore, it has waived any challenge to the arguments Martinez raised. See Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009) (holding that an appellee who did not address an argument in the answering brief had waived that issue). On remand, the agency is directed: (1) to give proper consideration to Martinez’s testimony about police corruption and acquiescence in MS-13 violence; (2) to accord proper weight to the Department of State Country Report on El Salvador, and in particular, evidence of corruption and inability or unwillingness to prosecute gang violence; and (3) to apply the correct legal standards to Martinez’s Convention Against Torture claim.”

PANEL: Morgan Christen and Paul J. Watford, Circuit Judges, and James Alan Soto, District Judge.

OPINION BY: Judge Soto

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Read the full opinion at the link. It’s short. Three things stand out.

First, the Respondent’s credible testimony clearly established a plausible claim for CAT relief. If he gets representation, he will be able to show that the authorities in El Salvador do often cooperate with gangs and that the government is willfully blind to the many instances of torture of citizens by gangs. The Asylum Officer’s incorrect analysis along with that by the Immigration Judge show a fundamental misunderstanding of CAT law and the reasonable fear process. How does an Immigration Court system faced with such glaring problems eliminate training and the guidance provided through the former Benchbook?

Second, the 9th Circuit highlights the Byzantine nature of the regulations in this area.  How many unrepresented individuals who been treated in this unfair manner are hustled out of the country because they can’t figure out how to get meaningful review?

Third, this decision shows that there might well be ways to penetrate the general unwillingress of Appellate Courts to review the gross miscarriages of justice and denials of due process going on every day in the expedited removal process which is administered by the DHS and inadequately reviewed by the Immigration Judges. Once they take a look, they will be appalled at what they find!

PWS

07-21-17

DECONSTRUCTION OF U.S. IMMIGRATION COURTS CONTINUES: IJ Benchbook Latest Casualty — No Time For Law!

Dan Kowalski at LexisNexis and Heidi Altman at the Heartland Alliance sent in the following:

Heidi Altman, Director of Policy
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
Washington, DC Office
Tel: 312-718-5021
Email: haltman@heartlandalliance.org
From: Daniel Kowalski <dkowalski@allott.com<mailto:dkowalski@allott.com>>
Date: July 19, 2017 at 6:01:16 PM EDT
To: “immprof@lists.ucla.edu<mailto:immprof@lists.ucla.edu>” <immprof@lists.ucla.edu<mailto:immprof@lists.ucla.edu>>
Subject: [immprof] EOIR IJ Benchbook No Longer In Use (July 19, 2017) – AILA

EOIR IJ Benchbook No Longer In Use (July 19, 2017)
“EOIR confirmed that the EOIR Immigration Judge (IJ) Benchbook has been removed from EOIR’s webpage and is no longer being utilized. According to the agency, use of the IJ Benchbook was discontinued due to challenges in keeping the publication up to date with current case law.
Please note that AILALink<http://ailalink.aila.org/> now contains a copy of the IJ Benchbook as it appeared on the EOIR website as of April 27, 2017.”

 

Daniel M. Kowalski
Editor-in-Chief
Bender’s Immigration Bulletin (LexisNexis)

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Even for EOIR this is extreme BS. No time to keep up on the law? Just like no time for Immigration Judge training.

Just another degradation in due process, uniformity, and training. Ridiculous!

PWS

07-20-17

NOT GONZO ENOUGH: AG Jeff Sessions Has Faithfully Advanced The White House’s White Nationalist Agenda At The DOJ — But The Donald Also Wanted Someone Who Would “Throw” The Russia Investigation — Expects “Cabinet Of Toadies”

In a far ranging interview with the NY Times that some would call “unhinged,” President Trump trashed Jeff Sessions, Rod Rosenstein (he’s from Baltimore, home of Democrats), James Comey, and Robert Mueller for showing any modicum of ethics and independence.

Here’s the entire article by Times reporters 

https://www.nytimes.com/2017/07/19/us/politics/trump-interview-sessions-russia.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news&_r=0

Here are some key excerpts:

“WASHINGTON — President Trump said on Wednesday that he never would have appointed Attorney General Jeff Sessions had he known Mr. Sessions would recuse himself from overseeing the Russia investigation that has dogged his presidency, calling the decision “very unfair to the president.”

In a remarkable public break with one of his earliest political supporters, Mr. Trump complained that Mr. Sessions’s decision ultimately led to the appointment of a special counsel that should not have happened. “Sessions should have never recused himself, and if he was going to recuse himself, he should have told me before he took the job and I would have picked somebody else,” Mr. Trump said.

In a wide-ranging interview with The New York Times, the president also accused James B. Comey, the F.B.I. director he fired in May, of trying to leverage a dossier of compromising material to keep his job. Mr. Trump criticized both the acting F.B.I. director who has been filling in since Mr. Comey’s dismissal and the deputy attorney general who recommended it. And he took on Robert S. Mueller III, the special counsel now leading the investigation into Russian meddling in last year’s election.

Mr. Trump said Mr. Mueller was running an office rife with conflicts of interest and warned investigators against delving into matters too far afield from Russia. Mr. Trump never said he would order the Justice Department to fire Mr. Mueller, nor would he outline circumstances under which he might do so. But he left open the possibility as he expressed deep grievance over an investigation that has taken a political toll in the six months since he took office.

. . . .

But Mr. Trump left little doubt during the interview that the Russia investigation remained a sore point. His pique at Mr. Sessions, in particular, seemed fresh even months after the attorney general’s recusal. Mr. Sessions was the first senator to endorse Mr. Trump’s candidacy and was rewarded with a key cabinet slot, but has been more distant from the president lately.

“Jeff Sessions takes the job, gets into the job, recuses himself, which frankly I think is very unfair to the president,” he added. “How do you take a job and then recuse yourself? If he would have recused himself before the job, I would have said, ‘Thanks, Jeff, but I’m not going to take you.’ It’s extremely unfair — and that’s a mild word — to the president.”

Mr. Trump also faulted Mr. Sessions for his testimony during Senate confirmation hearings when Mr. Sessions said he had not had “communications with the Russians” even though he had met at least twice with Ambassador Sergey I. Kislyak. “Jeff Sessions gave some bad answers,” the president said. “He gave some answers that were simple questions and should have been simple answers, but they weren’t.”

A spokesman for Mr. Sessions declined to comment on Wednesday.

The president added a new allegation against Mr. Comey, whose dismissal has become a central issue for critics who said it amounted to an attempt to obstruct the investigation into Russian meddling in the election and any possible collusion with Mr. Trump’s team.

. . . .

Mr. Trump rebutted Mr. Comey’s claim that in a one-on-one meeting in the Oval Office on Feb. 14, the president asked him to end the investigation into his former national security adviser, Michael T. Flynn. Mr. Comey testified before Congress that Mr. Trump kicked the vice president, attorney general and several other senior administration officials out of the room before having the discussion with Mr. Comey.

“I don’t remember even talking to him about any of this stuff,” Mr. Trump said. “He said I asked people to go. Look, you look at his testimony. His testimony is loaded up with lies, O.K.?”

He expressed no second thoughts about firing Mr. Comey, saying, “I did a great thing for the American people.”

Mr. Trump was also critical of Mr. Mueller, a former F.B.I. director, reprising some of his past complaints that lawyers in his office contributed money to Mrs. Clinton’s campaign. He noted that he actually interviewed Mr. Mueller to replace Mr. Comey just before his appointment as special counsel.

“He was up here and he wanted the job,” Mr. Trump said. After he was named special counsel, “I said, ‘What the hell is this all about?’ Talk about conflicts. But he was interviewing for the job. There were many other conflicts that I haven’t said, but I will at some point.”

The president also expressed discontent with Deputy Attorney General Rod J. Rosenstein, a former federal prosecutor from Baltimore. When Mr. Sessions recused himself, the president said he was irritated to learn where his deputy was from. “There are very few Republicans in Baltimore, if any,” he said of the predominantly Democratic city.

He complained that Mr. Rosenstein had in effect been on both sides when it came to Mr. Comey. The deputy attorney general recommended Mr. Comey be fired but then appointed Mr. Mueller, who may be investigating whether the dismissal was an obstruction of justice. “Well, that’s a conflict of interest,” Mr. Trump said. “Do you know how many conflicts of interests there are?”

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I guess reversing Obama-era civil rights, voting rights, transgender rights protections, switching sides in several lawsuits to oppose plaintiffs seeking to vindicate Constitutional rights, turning local police loose on minorities, trashing forensic science, firing U.S. Attorneys, going to war with states and localities over immigration enforcement, re-instituting the use of private prisons operated by those with political ties, rearranging U.S. Immigration Court Dockets to support more or less random DHS enforcement priorities, defending some over the top positions on immigration in court, seizing property from non-criminals, and hastily coming up with some contrived reasons for firing James Comey after Trump had already decided to do so aren’t enough to stay in favor with the Boss.

It’s not that one would have to be a “rocket scientist” to figure out that Sessions, a member of the campaign team, would ethically have to recuse himself from an investigation into the activities of the campaign team. And, if anyone at DOJ beyond Mueller and the now departed Comey have shown any bit of independence from the White House, it certainly hasn’t been obvious to the public. Indeed the DOJ appears to be in lockstep with the Administration’s most extreme and Constitutionally questionable plans. But, I guess “complete toadyism” requires going “an extra mile.”

The latest from the NY Times is that Sessions says he’s going to stay, at least for now.

PWS

07-20-17

IN IMMIGRATION CIRCLES, THE ATLANTA COURT IS KNOWN AS “WHERE DUE PROCESS GOES TO DIE” –WILL IT BE THE “NEW NORM?” — The Asylumist, Jason Dzubow, Says “We’re All In Atlanta Now!”

We’re All in Atlanta Now
by JASON DZUBOW on JULY 19, 2017
Atlanta, Georgia is generally considered to have the most difficult Immigration Court in the country. Now, the Trump Administration has tapped attorneys from the Atlanta Office of the Chief Counsel (the “prosecutors” in Immigration Court) to take charge of the Immigration Courts and the “prosecutors” offices for the entire United States. A third Atlanta attorney has been appointed to a key policy-making position at the Department of Homeland Security (“DHS”).

 

If you’re feeling down about Georgia exports, here’s something to love.
Before we get to those attorneys, let’s first talk about Atlanta. The average grant rate for asylum cases across the U.S. is just under 50%. The asylum grant rate at the Atlanta Immigration Court is less than 9%. Also, immigrant advocates have frequently complained about due process issues and the treatment of litigants in the Atlanta court.

It’s true that the Office of the Chief Counsel (“OCC”) and the Immigration Court are independent of each other, but I think we can safely glean a few things about the Atlanta OCC from what we know of the Court.

For one, since Immigration Judges will usually grant cases where the parties agree on relief, it seems likely that OCC attorneys in Atlanta rarely determine that a case should be approved for asylum. Of course, we do not know about the quality of the asylum cases in Atlanta—maybe they are unusually weak (a real possibility since sophisticated litigants will avoid Atlanta due to its low grant rate). But it would be strange indeed if almost no cases there meet the relatively low threshold required for asylum. The fact that the OCC is not stipulating to asylum on occasion indicates that they are taking a very hard line against such cases (this contrasts with many other jurisdictions, where the local OCCs regularly conclude that applicants qualify for asylum). The job of OCC attorneys is not merely to deport as many people as possible; they are supposed to do justice. This means agreeing to relief where it is appropriate. The low grant rate in Atlanta may indicate that OCC lawyers there are prioritizing “winning” over doing justice, and ideology above the law—all worrying signs as these attorneys move into national leadership positions.

Second, whether the asylum cases in Atlanta are strong or weak, I suspect that the high denial rate there colors the view of the OCC attorneys. If those attorneys believe that over 90% of asylum seekers are unworthy of relief—either because they do not meet the requirements for asylum or because they are lying about their claims—it seems likely that these attorneys will develop a jaundiced view of such cases, and maybe of immigrants in general.

Finally, there exists at least one instance of the Atlanta OCC taking an overly-aggressive position in a case involving alleged racial profiling by ICE (if OCC attorneys are the prosecutors, ICE officers are the police). In that case, an Immigration Judge in Atlanta ordered the OCC to produce an ICE agent accused of racial profiling. The OCC refused to produce the agent, and ultimately, the Judge ruled that the agents had engaged in “egregious” racial profiling and the OCC attorneys had committed “willful misconduct” by refusing to bring the agents to court. While the three OCC attorneys at issue here had left the Atlanta office by the time of this case, the OCC’s position again points to an agency willing to put “winning” ahead of justice.

With this background in mind, let’s turn to the alumnus of the Atlanta OCC who will be taking charge of our immigration system.

Tracy Short – ICE Principal Legal Advisor: Tracy Short is the new Principal Legal Advisor for ICE. In that capacity, he “oversees the Office of the Principal Legal Advisor, the largest legal program within the Department of Homeland Security, comprised of more than 1,100 attorneys and 300 support professionals throughout the United States.” These are the attorneys who serve as “prosecutors” in Immigration Court, among their other tasks. According to his ICE biography, “From 2009 to 2015, Mr. Short served as the Deputy Chief Counsel in the ICE Atlanta Office of Chief Counsel.” Mr. Short also served on the committee staff for Congressman Bob Goodlatte, the staunch anti-immigration representative from Virginia.

While Mr. Short has impressive litigation experience, he has almost no management experience (as Deputy Chief Counsel, he might have supervised a few dozen people, at most). But now, under the Trump Administration, he is overseeing more than 1,400 lawyers and staff. Like his fellow veterans of the Atlanta OCC, I suspect he was chosen more for his ideological views than for his management background.

James McHenry – Acting Director of the Executive Office for Immigration Review (“EOIR”): In a move characterized as “unusual” by retired Immigration Judge and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt, the Attorney General has appointed James McHenry as the new Acting Director of EOIR, the office that oversees the nation’s immigration court system. Judge Schmidt notes that, “While Judge McHenry has stellar academic and professional credentials, and is an ‘EOIR vet,’ having served as a Judicial Law Clerk/Attorney Adviser in the Buffalo and Baltimore Immigration Courts, it is unusual in my experience for the acting head of EOIR to come from outside the ranks of current or former members of the Senior Executive Service, since it is a major executive job within the DOJ.” In other words, while Judge McHenry has had significant legal experience, he has very little leadership experience, especially at EOIR.

Indeed, Judge Schmidt’s characterization of Judge McHenry as an “EOIR vet” seems overly generous. He served as a Judicial Law Clerk, which is basically a one or two year gig for new law school graduates working as an assistant to Immigration Judges (I myself was a JLC back in the prediluvian era) and he has a few months experience as an Administrative Law Judge for the Office of Chief Administrative Hearing Officer, an office at EOIR that reviews certain employment cases involving immigrants.

Like Mr. Short, Judge McHenry worked for the Atlanta OCC. He served as an Assistant Chief Counsel for ICE in that office from 2005 to 2010.

Whether Judge McHenry’s “acting” role as Director of EOIR will become permanent, we do not know. But I agree with Judge Schmidt that it is highly unusual for a person with such limited management experience to be picked to head our country’s immigration court system, with hundreds of judges and support personnel to oversee.

Gene Hamilton – Counsel to DHS Secretary: Gene Hamilton was appointed as counsel to DHS Secretary John Kelly. Along with Stephen Miller, he was apparently a key architect of the Trump Administration’s travel ban against people from several majority-Muslim countries. He also served as a trial attorney at the Atlanta OCC in about 2014 and 2015, though I could not verify his length of service there. In addition, Mr. Hamilton served on the staff of Senator Jefferson Beauregard Sessions before he was appointed Attorney General. Mr. Sessions, of course, is well known for his regressive views on immigration, civil rights, and just about everything else.

So there you have it. Three veterans of the Atlanta OCC who together will be exercising significant control over our country’s immigration system. Given their backgrounds and experience (or lack thereof), it’s difficult to be optimistic about how that system will fare under their watch.

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Somewhat predictable for an Administration that has little or no regard for Constitutional Due Process. That’s why folks need to join the “New Due Process Army” and carry on the fight until better times arrive (and they eventually will)!

As always, thanks to Jason for his incisive analysis!

PWS

07-20-17

 

 

NEWSDAY: Judge Dana Leigh Marks Says Independence Is Only Solution For Beleaguered U.S. Immigration Courts! — Years of Political Interference and Mismanagement By Justice Department Have Taken A Toll On Due Process!

2017-7-17-Newsday-DLM-Immigration-Courts-Need-Independence

Judge Marks writes:

“Immigration courts nationwide have a backlog of more than 598,900 cases. In some of our nation’s busiest courts, such cases remain pending more than 500 days. Just more than 300 immigration judges nationwide grapple with this backlog, which increased by 100,000 in the last year alone.

Even more troubling, as the caseload rises, the rate of completing cases has been dropping. And while there are several reasons for this, our courts have been left in the lurch by ineffective management that has failed to provide adequate support staff and strategic planning.

In the past five years, immigration judges have decided more than 1,329,950 cases, but we can do even better. The key is assuring judicial independence and protection from political influences. Removing the immigration courts from the Department of Justice, where the courts are run by politically appointed law enforcement managers subject to the pressures of politics, and placing them in an independent court structure, would insulate them from those pressures and allow them to concentrate on completing cases in a fair way.

When cases are conducted fairly, there is less likelihood of appeal or political attack. More skilled court management, provided by experienced court administrators, rather than a law enforcement agency with priorities other than fairness and efficiency, would greatly enhance our ability to complete the tasks. For example, cases would not be docketed to make political statements or serve as a show of force by our government. Rather, they would be on the calendar based on due process needs. Judges need to be allowed to apply their expertise to make their dockets run smoothly and fairly.

Restructuring immigration courts would be a win-win, a solution that would ease the pressures on an overwhelmed system and facilitate timely and fair decisions. Structural reform would go a long way toward assuring we are able to answer the challenges that surely will continue.

Dana Leigh Marks is an immigration judge in San Francisco and president of the National Association of Immigration Judges. The views expressed here are solely those of the author in consultation with the NAIJ.”

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Read Judge Marks’s full, article, which has an excellent succinct description of the important work performed by U.S. Immigration Judges, at the above link.

I agree totally with my good friend and former colleague Dana that an independent Immigration Court is a “win-win.” Pouring more Immigration Judges (particularly with little or no training) into an already dysfunctional system has actually resulted in fewer completions and is almost certain to increase the already disturbing discrepancies in asylum grant rates, etc.

But, getting officials in today’s highly politicized Department of Justice to support such a move is difficult. As I pointed out in an earlier post/article, http://immigrationcourtside.com/we-need-an-article-i-united-states-immigration-court-now/ one of the two reasons that Government officials sometimes fail to act in their own and the country’s best interests is “uncompromising philosophy.”

Jeff Sessions’s extreme anti-immigrant philosophy has led him to eschew “smart” immigration enforcement in favor of a “gonzo” policy of indiscriminate prosecution, jailing, detaining, deporting, and using the Immigration Courts as an adjunct of DHS enforcement, while trying to avoid the Immigration Court system entirely through a policy of increased “expedited removal.” Ultimately, this program, which lacks both credibility and due process, is very likely to fail and lead to a logjam in the Article III Courts. This, in turn, will result in almost nobody getting removed and Article III Judges making decisions about how the Immigration Court system should be run.

I don’t share Dana’s optimism that Sessions could be persuaded to cede his total control over the staffing and functioning of the U.S. Immigration Courts to an independent authority who would run it in accordance with due process. Although that would be in his best interests, I see no evidence that he is reflective enough to get beyond his long history of immigrant bashing and furthering a white nationalist agenda. I’d like to be proved wrong on this, but I wouldn’t hold my breath.

As I have pointed out several times before, when a system with over 600,000 pending cases finally “crashes and burns,” it’s going to take a big chunk of the American justice system with it. Maybe, just maybe, at that point legislators will finally have to do their jobs, step in, and create an independent Immigration Court, with or without the support of the Administration and the DOJ.

PWS

07-19-17