POLITICO EXPOSES SHOCKING FRAUD, WASTE, & ABUSE IN SESSIONS’S U.S. IMMIGRATION COURTS — POLITICALLY DRIVEN “ADR” FUELS UNMANAGEABLE BACKLOGS WHILE DOJ TRIES TO FOB OFF BLAME ON HARD WORKING ATTORNEYS AND US IMMIGRATION JUDGES — DUE PROCESS MOCKED & DENIED — GOP-LED CONGRESS AWOL AS DOJ SQUANDERS TAXPAYER FUNDS & ASKS FOR MORE! — JUDGES FORCED TO LEAVE BACKLOGGED DOCKETS TO TWIDDLE THUMBS AND READ NEWSPAPERS AT BORDER — INCOMPETENT DOJ POLITICOS ALLOWED TO REARRANGE COURT DOCKETS WHILE LOCAL JUDGES IGNORED — WHEN WILL THIS ABUSE END! — Plus, I Take On Former Obama Official Leon Fresco For His Tone Deaf Dissing Of Vulnerable Migrants Seeking (But Not Finding) Justice In Trump’s America!

ADR = AIMLESS DOCKET RESHUFFLING

http://www.politico.com/magazine/story/2017/09/27/trump-deportations-immigration-backlog-215649

Meredith Hoffman reports for Politico:

“On September 4, immigration judge Denise Slavin followed orders from the Department of Justice to drop everything and travel to the U.S.-Mexico border. She would be leaving behind an overwhelming docket in Baltimore, but she was needed at “ground zero,” as Attorney General Jeff Sessions called it—the “sliver of land” where Americans take a stand against machete-wielding, poison-smuggling criminal gangs and drug cartels.

As part of a new Trump administration program to send justices on short-term missions to the border to speed up deportations and, Sessions pledged, reduce “significant backlogs in our immigration courts,” Slavin was to spend two weeks at New Mexico’s Otero County Processing Center.

But when Slavin arrived at Otero, she found her caseload was nearly half empty. The problem was so widespread that, according to internal Justice Department memos, nearly half the 13 courts charged with implementing Sessions’ directive could not keep their visiting judges busy in the first two months of the new program.

“Judges were reading the newspaper,” says Slavin, the executive vice president of the National Immigration Judges Association and an immigration judge since 1995. One, she told POLITICO Magazine, “spent a day helping them stock the supply room because she had nothing else to do.”

Slavin ended up leaving Otero early because she had no cases her last day. “One clerk said it was so great, it was like being on vacation,” she recalls.

In January, President Donald Trump signed an executive order directing the DOJ to deploy U.S. immigration judges to U.S. detention facilities—most of which are located on or near the U.S.-Mexico border. The temporary reassignments were intended to lead to more and faster deportations, as well as take some pressure off the currently overloaded immigration court system. But, according to interviews and internal DOJ memos, since the new policy went into effect in March, it seems to have had the opposite result: Judges have frequently had to cancel cases on their overloaded home dockets only to find barely any work at their assigned courts—exacerbating the U.S. immigration court backlog that now exceeds 600,000 cases.

According to internal memos sent by the DOJ’s Executive Office of Immigration Review (EOIR) and obtained by the National Immigrant Justice Center (NIJC) via a Freedom of Information Act request, judges delayed more than 20,000 home court hearings for their details to the border from March to May.

“I canceled about 100 cases in my home court to hear 20,” says Slavin, who was forced to postpone those Baltimore hearings by a year since her court schedule was already booked through most of 2018. In Otero, she had no more than 50 hours of work over the course of two weeks (she typically clocks 50 hours per week in Baltimore). But she couldn’t catch up on her work at home because she had no access to her files.

Her three colleagues at the facility who had also been ordered there by the DOJ were no busier. One who had been sent to Otero previously told her the empty caseloads were normal.

“Sending judges to the border has made the backlog in the interior of the country grow,” says Slavin, “It’s done exactly the opposite of what they hoped to accomplish.”

***

On April 11 in Nogales, Arizona, Sessions formally rolled out the DOJ’s judge relocation program. “I am also pleased to announce a series of reforms regarding immigration judges to reduce the significant backlogs in our immigration courts,” he told the crowd of Customs and Border Protection personnel gathered to hear him. “Pursuant to the president’s executive order, we will now be detaining all adults who are apprehended at the border. To support this mission, we have already surged 25 immigration judges to detention centers along the border.”

The idea was to send U.S. immigration court judges currently handling “non-detained” immigration cases—cases such as final asylum decisions and immigrants’ applications for legal status—to centers where they would only adjudicate cases of those detained crossing the U.S.-Mexico border, along with others who had been picked up by ICE for possible deportation. More judges would follow, the attorney general said.

But as Sessions spoke, nearly half of those 25 “surge” judges—whose deployments typically last two weeks or a month—were largely unoccupied. One week before the attorney general’s Nogales announcement, EOIR—the Justice Department office that handles immigration cases—published an internal memo identifying six of 13 detention centers as offering inadequate work for their visiting justices.

“There are not enough cases to fill one immigration judge’s docket, let alone five,” the DOJ wrote of Texas’ T. Don Hutto facility, which had been assigned five Miami judges to hold hearings via video teleconference with the women detained there.

One judge sent to the South Texas Residential Center, a family detention facility, had no cases at all; a judge at another family facility, Karnes Residential Center, had a “light” docket; and Texas’ Prairieland Detention Center, which had received a judge, also was “not receiving enough cases to fill a docket or even come close to it,” the memo stated.

The two judges assigned to New Mexico’s Cibola Detention Facility also had barely any work to do, and Louisiana’s La Salle Detention Center—not on the border but treated as such in its receipt of five “surge” judges—had similarly been overstaffed. “There is not enough work for five judges,” said one DOJ memo. “There is enough work for a reasonable docket and three judges.”

The Justice Department documents also revealed a number of logistical issues with the border courts, including a lack of phone lines or internet connectivity, and noise infiltrating the courtroom from the detention facility. “The courtrooms at Imperial Regional Detention Facility are not suitable for in-person hearings because security is wholly inadequate,” said one memo of the California facility. “The court cannot do telephonic interpreters and the request for in-person interpreters remains pending. … Last week an immigration judge was left in the courtroom without a bailiff.”

Meanwhile, the judges sent to the border were forced to abandon thousands of home court cases—which the DOJ was aware could increase pressure on the U.S. immigration court system, where a specialized cadre of judges handles questions over whether people can remain in the country or face deportation. “It is likely that the backlog will increase for the locations from which a judge is assigned,” predicted one March 29 document, which also projected the deployments would cost $21 million per fiscal year.

Within the first three months of the program, judges postponed about 22,000 cases around the country, including 2,774 in New York City alone, according to the DOJ memos. (The delays added to an already clogged system: New York City’s immigration court backlog stood at 81,842 as of July, according to the immigration data tracker TRAC Immigration.)

When asked about these FOIA documents, and why the DOJ had deployed judges where they were not needed, a Justice Department spokesmanresponded that the program had improved in recent months. “After the initial deployment, an assessment was done to determine appropriate locations to increase the adjudication of immigration court cases without compromising due process,” he said.

Immigration judges and advocates acknowledge that the program has slightly improved since May—but many say that’s largely because the DOJ is sending fewer judges on temporary missions. “Some of the least productive assignments have either been discontinued or converted to video teleconferencing hearings, and it seems that fewer judges are being sent overall,” says National Association of Immigration Judges President Dana Marks, who serves as an immigration judge in San Francisco. But, she says, “the basic problem still persists.”

More than 100 total judges have been reassigned since March, but Politico was not able to obtain data on whether deployments are declining or increasing, or how many judges are still facing empty caseloads.

The spokesperson declined to comment on Slavin’s experience at Otero. But the DOJ discontinued deployments to Otero this month, as soon as Slavin completed her assignment there.

The U.S. immigration court backlog has increased under Trump, moving from 540,000 in January to 600,000 in July. But the DOJ spokesperson denied that the deployments were responsible for the bump, instead blaming the overloaded system on the Obama administration’s policies. He noted that the first six months of the Trump administration had seen a14.5 percent increase in final immigration court rulings from the previous year, and that more than 90 percent of cases by “surge” judges had led to deportation orders.

But just because judges have ruled on more cases doesn’t mean the Trump administration hasn’t worsened the backlog, NIJC communications director Tara Tidwell Cullen says. In fact, it could likely mean the opposite. Trump’s first six months in power saw 40 percent more immigration arrests in the country’s interior than the year before, adding more cases to already overloaded dockets.

“The ‘home’ courts where judges are sent from continue to be understaffed and their caseloads are adversely impacted as judges are sent to temporary assignments,” adds Marks, the San Francisco judge. Adding to the problem, she points out, is the administration’s decision to detain immigrants without allowing the Department of Homeland Security to grant them bonds. Now, detainees have to go to immigration court to get a bond, creating extra work for those justices.

***

Not everyone thinks sending judges to the border is a bad idea.

“The best use of resources is to throw them all at detention,” says Leon Fresco, who served as deputy assistant attorney general under President Barack Obama. Judges typically release individuals detained for more than 90 days with no trial on habeas corpus, he explains, in which case the government has “wasted money in detaining them” to start. Better, then, to hear all the detained cases quickly.

Any administration will have to make tough calls, says Fresco. “You have just about 300 judges to hear more than 500,000 cases, so you have to prioritize.” Under Obama, the DOJ—while it hadn’t sent judges to the border—had also prioritized recent border crossers in order to send a message that the U.S. would immediately hear their cases, rather than allow them to “wait eight years to be adjudicated” while staying in the country, Fresco says. Trump’s priorities similarly send a message to potential border crossers that “we do have quick justice.”

The problem, Fresco adds, is that the Trump administration has been clumsy in its border deployments—sending judges to places where they aren’t needed. “There are ways to do this, but they need to be more flexible and nimble, and they’re not being as nimble as they can be,” he says. “EOIR is an agency badly in need of some sort of consulting firm. … There’s still too little rhyme or reason about how case assignments work—you shouldn’t have weeks with judges with hours of idle time.”

Chicago immigration judge Robert D. Vinikoor says his deployment went smoothly. He had a full caseload in his two-week detail at Otay Mesa Detention Center in San Diego this April, and he maintains that the reassigned judges were necessary to get immigrants out of detention as expeditiously as possible. “DHS is detaining more and more people and keeping them in custody, so that’s the need for the judges,” says Vinikoor, who retired in June after serving 33 years as an immigration judge. “The question is: Are they over-detailing? In some cases they put the cart before the horse.”

But Marks, who has been an immigration judge for 30 years, disagrees. Even if the DOJ gets deployments right, she says, the surge policy shows the administration has the wrong priorities. She says the administration’s biggest mistake was making a “politically motivated decision” and not consulting immigration judges. “The judges weren’t asked and that’s always been our big frustration,” she says.” The judges are the ones who are the experts in handling their cases.”

Marks notes that her union had similar frustrations with the Obama administration’s prioritization of recent border crossers—predominantly Central American women and children seeking asylum—to send a message they would be deported quickly if they could not prove they qualified for asylum. That decision, she says, worsened the backlog, too.

The overloaded system jeopardizes due process for immigrants, says NIJC’s policy director Heidi Altman, who filed the FOIA for EOIR’s memos after hearing about “chaos” in the courts when the border details began.

“When the backlog is exacerbated it makes it exponentially harder for us and other legal services to take on clients,” says Altman, whose NIJC organizes pro-bono attorneys handling immigration cases, which do not guarantee legal representation. Without a lawyer handling a case, she says, it is less likely to proceed fairly.

But there’s another reason that Trump might want to reconsider the border surge, says John Sandweg, former acting director of ICE under the Obama administration: It takes the pressure off the undocumented immigrants who have lived in the country for years and may be fighting to prevent an order of deportation. “They’re basically giving amnesty ironically to the non-detained docket.”

“By shifting the judges away they’ll never have their hearing so they’ll never be ordered deported,” he says. “You’re letting them stay.”

Meredith Hoffman is a freelance journalist who who has covered immigration for AP, Rolling Stone, the New York Times, and VICE.
**************************************
Thanks, Meredith, for this very timely article that ties in nicely with the recent NBC 4 I-Team series on the unmitigated mess in the U.S. Immigration Courts and how Jeff Sessions’s xenophobia, patent disregard for Due Process, and gross mismanagement of the U.S. Immigration Courts is ruining lives and threatening the very underpinnings of the American Justice system.It would be nice to think that someone or somebody would hold this “Swamp Dweller” accountable for his lawless actions. But, to date, that seems unlikely as long as the GOP is in power.The judgment of history, however, is something quite different. And that’s why it is so critical that the truth be documented, especially since Sessions is wont to lie, misrepresent, and distort when it comes to furthering his White Nationalist agenda. He might get away with it in the short run, but in the end he will be held fully accountable and his memory forever tied to the false, xenophobic, White Nationalist views that he spent a lifetime trying (fortunately, usually with little success outside of Alabama) to advance.Also, my long time friend and former colleague Judge Bobby Vinakoor neglected to mention that for him to go to Otey Mesa, his previously set dockets at the Chicago Immigration Court were reset, something that the practitioners representing the respondents were less sanguine about than Bobby. I will say though, that knowing Bobby, if they had good reasons for being heard before his retirement date, he probably squeezed them in somewhere and took care of them. Bobby was never one to intentionally leave someone hanging.OK, Leon Fresco, on to you! I hope to hell that you and your fat-cat law firm Holland & Knight (which I’ll be the first to admit has been a consistent stalwart on the pro bono immigration scene going back to my days at the Legacy INS) have permanent offices somewhere down on the Southern border where you are providing free legal assistance to all the noncriminals being needlessly detained by the Administration in substandard (many would say subhuman) condititions. Your “wise-ass comments” about running folks through the courts in 90 days or less to prevent them from being properly released under court orders deserve censure.As a former head of OIL, you know better than anyone that refugees from the Northern Triangle have zip chances of winning their cases without good lawyers, adequate time to prepare, and the ability to corroborate their (often quite plausible) claims with documentation. None of that is readily available in the obscure locations where the Trump/Sessions crowd has purposely chosen  to detain immigrants. So, racing them though “court,” as your apparently advocate, in detention where there can’t get lawyers, can’t prepare, and can’t get evidence, and where they are regularly coerced by your former clients at DHS into abandoning claims, is pretty much a “death sentence” for any valid claim they might have for protection.

I also find your continuing advocacy of the misuse of the Immigration Courts to deny due process and send “enforcement messages” even more highly objectionable. As a former Immigration Judge at two levels, I can assure you that’s not what courts are for! It’s a grotesque abuse of the court system and makes a mockery of due process — exactly the things that EOIR was supposedly created to eliminate (but hasn’t been able to, thanks to “enablers” like you, Leon). You wouldn’t be so chipper if you or one of your fat cat clients were treated the way our system treats vulnerable migrants looking for justice. But, you have helped me illustrate why the U.S. Immigration Courts can’t function in a fair and impartial manner and provide due process while part of the highly politicized DOJ under Administrations of either party.  So, for that I have to thank you.

And, I’ve always maintained that the Obama Administration richly deserves a huge part of the blame for the Due Process disaster in the U.S. Immigration Courts. They took a troubled system and turned it into a disaster. Undoubtedly, your unwillingness to “just say no” to some of the unconscionable legal positions the DOJ took and their abandonment of the responsibility to create a balanced, fair, impartial, and diverse immigration judiciary played some role in that man-made disaster.

And don’t kid yourself, Leon. What you defended in the Obama Administration wasn’t “quick justice!” No, it was “little or no justice” for the majority of detainees who were railroaded through the system in detention, something that should keep you awake when you’re not out making the “big bucks practicing big law.”  

For those of you who don’t know him, Leon once made a career out of going around claiming that barely literate women and children didn’t need lawyers in Immigration Court because is would “open the floodgates.”

From NPR:

“Yet last week, Deputy Assistant Attorney General Leon Fresco appeared before a federal judge in Seattle to argue that providing legal representation for immigrant children facing deportation could create open borders and send the message that no one here illegally would be removed.

“It would create a magnet effect,” Fresco said in court.”

http://www.pbs.org/newshour/rundown/holder-says-immigrant-children-get-lawyers-department-disagrees/

Funny thing about due process and justice, Leon, sometimes they are inconvenient.

You’re not a shill for the Obama Administration any more, Leon. You’re no longer required to “defend the indefensible” (something that’s not unfamiliar to me from my INS career). Reflect on the errors of your past, leave the dark behind, and come on over to the light. The living’s better over here, and there’s plenty of room for all.  

Best wishes,

Paul

09-27

NEWSWEEK REPORTS TRUMP ADMINISTRATION PLANNING MASSIVE ASSAULT ON RIGHTS OF UNDOCUMENTED TEENS ADMITTED UNDER THE WILBERFORCE ANTI-TRAFFICKING ACT!

http://www.newsweek.com/trump-administration-weighs-deporting-thousands-unaccompanied-child-migrants-668778

Graham Lanktree reports:

“The Trump administration is drafting a new policy to quickly deport more than 150,000 child migrants from Central America who arrived alone in the U.S. illegally, creating a new class of undocumented migrants.

The Department of Justice and Homeland Security is drawing up a policy proposal in a series of memos, according to two sources with knowledge of the internal debate who spoke to the Miami Herald.

As it stands, the plan would allow for teens and children who arrived in the U.S. illegally by themselves to be put on a fast track to deportation when they turn 18. Most of these children have traveled thousands of miles alone from Central American countries, including Honduras, El Salvador, and Guatemala, to escape violence and poverty.

The policy wouldn’t allow the teens to plead their case before an immigration judge.

The discussions follow controversy within the government about Deferred Action for Childhood Arrivals program, known as DACA, a program implemented by Barack Obama, which protects children brought to the country illegally by their parents from deportation.

Speaking about the new policy plans, a former U.S. Justice Department official told the Herald, “The concern is that most people at DOJ know this will likely be viewed as illegal and do not want to have to defend this in court if they can avoid it.”

Current law “doesn’t give the administration a lot of flexibility with how to deal with unaccompanied children,” said a U.S. official familiar with the internal debate about the policy. “This administration still has its hands somewhat tied with what it can do with that population,” that person said.

. . . .

The new policy around unaccompanied children is part of the Attorney General’s efforts to avoid creating a another protected group of illegal immigrants like those under DACA, the Herald’s sources said.

The arrival of unaccompanied children and families from Central America peaked in 2014. In the year between October 1, 2013 and September 30, 2014 U.S. Customs and Border Protection (CBP) says it encountered 67,339 unaccompanied children.

At the height of the influx in June 2014, 27,000 people, including unaccompanied children and families, crossed the U.S.-Mexico border. Three months later the number dropped below 5,000 following crackdowns by the U.S. and Mexico governments.

More than 150,000 children have been referred by Homeland Security to the Office of Refugee Resettlement since that time. The program cares for unaccompanied children after they are caught at the border by officials and either places them in shelters, with sponsors, or relatives in the U.S.

About 63 percent and 73 percent of the unaccompanied youth who arrive at the border are between 15 and 17 years old, making a large group of those who are in the U.S vulnerable to deportation if the administration moves ahead with the policy.

“For a growing population of migrants deported from Mexico and the United States to Central America, the conditions upon return typically are worse than when they left, setting up a revolving-door cycle of migration, deportation, and remigration,” according to the nonprofit Migration Policy Institute. The group advocates better programs to reintegrate those who are deported to their home country.

If the Trump administration decides to move ahead with the policy proposal it will it will likely meet similar opposition to Trump’s travel ban on people coming to the U.S. from six Muslim-majority nations. Elements of the ban have been blocked by federal courts and a legal case against the policy will be heard in the U.S. Supreme Court this fall.

The new policy on unaccompanied minors could be blocked by the courts almost immediately, said Leon Fresco, the former head of the Office of Immigration Litigation at the Justice Department during the Obama administration.

The question is, Fresco said, “whether the administration wants to add this to the travel ban, sanctuary cities, Byrne Jag grants, and DACA repeal to the issues they would want the Supreme Court to have to decide this year.”

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

Read the complete report at the link.

These kids clearly are entitled to full and fair hearings before U.S. Immigration Judges with full rights of appeal. So, whatever Gonzo Apocalypto has up his sleeve must be clearly illegal.

DOJ career lawyers probably realize that their law licenses, and perhaps their individual freedom, could be at stake for participating in such an illegal operation. It would be nice to think that Sessions could also be held accountable under the law. But, as a high-ranking Government official, he’s likely to escape liability under the current Supreme Court rulings. Besides, Trump (or Pence) would probably pardon him anyway in the tradition of his fellow racist xenophobe “Racist Joe.”

PWS

09-21-17

 

 

 

CNN: TAL KOPAN’S CONGRESSIONAL FORECAST FOR DACA — STORMY — No Quick & Easy Path To Compromise On The Horizon — Will Parties Precipitate National Disaster To Please Respective Bases?

http://www.cnn.com/2017/09/04/politics/daca-congress-trump-decision/index.html

Tal writes:

“Washington (CNN)President Donald Trump’s expected decision to end DACA, but leave some time to save it, punts the popular program that protects young undocumented immigrants to Congress — but passage of a legislative solution remains a steep uphill climb.

Trump is expected to announce Tuesday that he will end the Obama-era Deferred Action for Childhood Arrivals program, but will offer a six-month delay to give Congress time to come up with a fix, according to sources familiar. Those sources have cautioned that this was the President’s thinking as of Sunday night and could shift ahead of his scheduled Tuesday announcement.
Such a plan would put the issue on Congress’ shoulders amid a busy fall, squeezing Republican and Democratic leadership to decide what their bases could swallow to find a compromise that would keep the nearly 800,000 people who benefit from the program from having their lives upended.

. . . . But the devil is in the details — and it remains unclear to insiders of the debate whether both sides can swallow enough of a compromise to reach a solution.
They have been adamant that they will not accept any deal to fund even small amounts of a border wall or increased immigration enforcement, and cuts to legal immigration would be unacceptable.
“Already you’ve seen the fracturing with people saying you need to pass this as part of border security, or other people saying you need to pass this with cuts in legal immigration, and another group saying you need to pass this on its own, and already that lack of consensus makes this unfeasible in Congress,” said Leon Fresco, an immigration attorney, former Obama administration immigration official and former aide to Senate Minority Leader Chuck Schumer.
Fresco also pointed to advocacy groups on the left as key to Democrats’ decision-making. As long as those groups insist, as they do, that they won’t accept a DACA fix in exchange for more enforcement, Democrats are stuck.
“The politicians are being bolstered by the groups, and the groups themselves are saying don’t trade any enforcement for DACA,” Fresco said. “If that were to change, then the fundamental dynamics of the issue would change, but at the moment that’s not where the advocacy community is — they want a fight on DACA to show that the President is on the wrong side of these issues.”

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

Wall funding in return for a DACA with a path to green cards and eventually citizenship seems like a deal that  would allow Trump to throw some “red meat” to his base by delivering on a key campaign promise while minimizing the human damage to our country, our ecomomy, and our future.

“TRUMP” CARDS:

Dems:

Trump can’t legally remove 800,000 Dreamers during his Administration.

See:

BREAKING: Trump Punts DACA To Congress — Will End Program In 6 Mo. Unless Congress Acts!

GOP RESTRICTIONISTS:

Trump will be able to inflict lots of pain and suffering on Dreamers while deporting thousands, forcing others to leave, and making the rest to live in fear or go underground. Dreamers won’t get a chance to vote the GOP out of office (although their kids and grandkids eventually will).

PWS

09-05-17

 

NO CHAOS: Matt Zapotosky Summarizes Supreme’s Travel Ban Decision — Former DOJ Immigration Litigator Leon Fresco Says Case Likely To Resolve Itself Before Argument In Fall!

https://www.washingtonpost.com/world/national-security/what-the-supreme-courts-travel-ban-ruling-means/2017/06/26/5e86e1cc-5a7e-11e7-9fc6-c7ef4bc58d13_story.html?utm_term=.13c35f5c2033

Zapotosky writes in the WashPost:

“The Supreme Court’s decision to allow portions of President Trump’s travel ban to take effect is a win for the administration, but the impact will be far less severe than President Trump’s initial version of the measure.

That is because the high court effectively allowed Trump to ban from coming to the United States only citizens of six majority-Muslim countries “who lack any bona fide relationship with a person or entity in the United States.” It also nudged the president to complete his promised review of vetting procedures, which might mean the issue is resolved by the time the court is set to fully consider the ban in its October term.

For now, if you are not a U.S. citizen and have a relative here, have been hired by a U.S. employer or admitted to an American university, you can still probably get a visa. But if you’re applying cold as a visitor or through the diversity visa program, you probably can’t.

. . . .

The Supreme Court wrote that the government now should be able to do its work. “We fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of [the order],” the justices wrote.

The court said it would take up the travel ban fully in its October term; their ruling Monday only partially lifted lower courts’ stays on the measure. By that time, the 90-day period will have run, and Fresco said the administration will be pressed to come up with good reasons for imposing a ban.

“If there is not an answer to the question on the first day of oral arguments about why this ban is still in place, that is going to make the court much more skeptical about the government’s reasons for having this ban,” Fresco said.”

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

Read the complete analysis at the link.

According to this analysis, the six Justices in the majority apparently have skillfully maneuvered the Trump Administration into a “put up or shut up” situation. They have alleviated the greatest hardships caused by the ban by allowing individuals with bona fide connections to the U.S. to continue to come. At the same time, they have pressured the Trump Administration into completing its “study” before Fall and lifting the “temporary ban,” thus largely mooting the case. As Fresco points out, if the Administration attempts to continue the ban after its scheduled expiration, they will likely have to come up with a much more convincing explanation that they have provided to date. Otherwise, the whole thing is going to look like a “pretext” for a blanket “Muslim ban,” which is what the plaintiffs have been arguing all along. Actually, sounds to me like the kind of practical solution that Chief Justice Roberts sometimes devises to avoid ugly showdowns between the three branches of Government. Interesting.

PWS

06-26-17

 

FEAR WORKING? — Trump Showing Doubters That “Tough Talk & Actions” Can Alter Migration Patterns!

https://www.washingtonpost.com/politics/amid-immigration-setbacks-one-trump-strategy-seems-to-be-working-fear/2017/04/30/62af1620-2b4e-11e7-a616-d7c8a68c1a66_story.html?hpid=hp_rhp-top-table-main_trumpimmigration-710pm-1%3Ahomepage%2Fstory&utm_term=.f8b003fef8f7

David Nkamura writes in the Washington Post:

“In many ways, President Trump’s attempts to implement his hard-line immigration policies have not gone very well in his first three months. His travel ban aimed at some Muslim-majority countries has been blocked by the courts, his U.S.-Mexico border wall has gone nowhere in Congress, and he has retreated, at least for now, on his vow to target illegal immigrants brought here as children.

But one strategy that seems to be working well is fear. The number of migrants, legal and illegal, crossing into the United States has dropped markedly since Trump took office, while recent declines in the number of deportations have been reversed.

Many experts on both sides of the immigration debate attribute at least part of this shift to the use of sharp, unwelcoming rhetoric by Trump and his aides, as well as the administration’s showy use of enforcement raids and public spotlighting of crimes committed by immigrants. The tactics were aimed at sending a political message to those in the country illegally or those thinking about trying to come.

“The world is getting the message,” Trump said last week during a speech at the National Rifle Association leadership forum in Atlanta. “They know our border is no longer open to illegal immigration, and if they try to break in you’ll be caught and you’ll be returned to your home. You’re not staying any longer. If you keep coming back illegally after deportation, you’ll be arrested and prosecuted and put behind bars. Otherwise it will never end.”

The most vivid evidence that Trump’s tactics have had an effect has come at the southern border with Mexico, where the number of apprehensions made by Customs and Border Patrol agents plummeted from more than 40,000 per month at the end of 2016 to just 12,193 in March, according to federal data.

Immigrant rights advocates and restrictionist groups said there is little doubt that the Trump administration’s tough talk has had impact.

“The bottom line is that they have entirely changed the narrative around immigration,” said Doris Meissner, who served as the commissioner of the U.S. Immigration and Naturalization Service in the Clinton administration. “The result of that is that, yes, you can call it words and rhetoric, and it certainly is, but it is changing behavior. It is changing the way the United States is viewed around the world, as well as the way we’re talking about and reacting to immigration within the country.”

. . . .

“One thing this administration has done that the Democrats’ message has to recalibrate for is that it’s not credible to the American people to say enforcement plays no role in [reducing] the numbers of immigrants coming illegally,” Fresco said. “Some have tried to perpetuate a myth that it is not linked. To the extent the numbers stay low, one thing the Trump administration has been able to say that is a correct statement is that enforcement does factor into the calculus.”

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

Read the entire article at the above link. President Trump might be losing the battles, but winning the war. That, in turn, might force Democrats to revise their views on immigration enforcement as part of long-term immigration reform.

PWS

05-01-17

 

 

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

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

Matt Zapotosky reports in the Washington Post:

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

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

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

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

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

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

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

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

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

http://wp.me/p8eeJm-xN

PWS

03/23/17

 

 

Problems Mount For Administration On Travel Ban — Can’t Find Support For Their “Pre-Hatched” Conclusions — Stephen Miller Shoots Off Mouth Again — DOJ Litigators Undoubtedly Cringe As In-Court Statements Undermined!

https://www.washingtonpost.com/world/national-security/a-new-travel-ban-with-mostly-minor-technical-differences-that-probably-wont-cut-it-analysts-say/2017/02/22/8ae9d7e6-f918-11e6-bf01-d47f8cf9b643_story.html?utm_term=.e2b487b295a7

Matt Zapotsky writes in the Washington Post:

“Senior policy adviser Stephen Miller said President Trump’s revised travel ban will have “mostly minor technical differences” from the iteration frozen by the courts, and Americans would see “the same basic policy outcome for the country.”

That is not what the Justice Department has promised. And legal analysts say it might not go far enough to allay the judiciary’s concerns.

A senior White House official said Wednesday that Trump will issue a revised executive order on immigration next week, as the administration is working to make sure the implementation goes smoothly. Trump had said previously that the order would come this week. Neither the president nor his top advisers have detailed exactly what the new order will entail. Miller’s comments on Fox News, while vague, seem to suggest the changes might not be substantive. And that could hurt the administration’s bid to lift the court-imposed suspension on the ban, analysts said.

“If you’re trying to moot out litigation, which is to say, ‘Look, this litigation is no longer necessary,’ it is very bad to say our intent here is to engage in the prohibited outcome,” said Leon Fresco, who worked in the office of immigration litigation in President Barack Obama’s Justice Department.”

https://www.washingtonpost.com/blogs/right-turn/wp/2017/02/23/white-house-gives-plenty-of-ammunition-to-travel-bans-opponents/?utm_term=.9442c17ff14b

Jennifer Rubin writes in Right Turn in today’s Washington Post:

“Opponents of President Trump’s travel ban have one big advantage — the Trump White House. If not for the confusion, lack of staffing (nary a deputy, let alone an undersecretary or assistant secretary, has been named in national security-related departments), organizational disarray, policy differences or all of the above, the administration might have put together on its first try a legally enforceable executive order. It might by now even have come up with a new executive order, thanks to a road map provided by the 9th Circuit. However, the rollout has been pushed back to next week.

Understand that if this is such a matter of urgent concern, the president would have had his advisers working around the clock on this (not transgender bathroom assignments, plans to deport non-criminal illegal immigrants or haggling with Mexican officials over a wall that Trump insists they pay for). In fact, since the point of the ban is to initiate a review of our vetting procedures, you’d think that the Homeland Security Department would already have come up with its proposed “extreme vetting” recommendations.

Meanwhile, the president and his staff continue to provide legal ammunition to opponents of the ban. On Tuesday, senior adviser Stephen Miller in a Fox News interview boldly declared, “Fundamentally, you’re still going to have the same basic policy outcome for the country, but you’re going to be responsive to a lot of very technical issues that were brought up by the court.” Just to remind the courts of the administration’s arrogance, Miller proclaimed that there was nothing wrong with the first order.

“By saying that the policy effects of the new travel ban will be essentially the same as those of the travel ban that so many federal judges found constitutionally suspect, Miller is effectively inviting federal courts to suspend the new one as well, given that the religiously discriminatory history of the ban can’t be ignored, much less erased, simply by purporting to start over again,” Supreme Court litigator and professor Larry Tribe tells me. “If, as I am told, the new ban is a more artfully disguised version of [an] anti-Muslim measure, without explicit preferences for religious minorities in Muslim-majority countries (i.e., for Christians) written into the very text of the ban, then some judges might be less inclined to issue a temporary restraining order, but most federal judges would be savvy enough to recognize that they are being treated to a masquerade.”

http://www.cnn.com/2017/02/23/politics/white-house-effort-to-justify-travel-ban-causes-growing-concern-for-some-intel-officials/index.html

Meanwhile, Jake Tapper and Pamela Brown on CNN highlight more difficulties with the Administration’s “shoot first, ask questions later” approach:

“Washington (CNN)President Donald Trump has assigned the Department of Homeland Security, working with the Justice Department, to help build the legal case for its temporary travel ban on individuals from seven countries, a senior White House official tells CNN.

Other Trump administration sources tell CNN that this is an assignment that has caused concern among some administration intelligence officials, who see the White House charge as the politicization of intelligence — the notion of a conclusion in search of evidence to support it after being blocked by the courts. Still others in the intelligence community disagree with the conclusion and are finding their work disparaged by their own department.
“DHS and DOJ are working on an intelligence report that will demonstrate that the security threat for these seven countries is substantial and that these seven countries have all been exporters of terrorism into the United States,” the senior White House official told CNN. “The situation has gotten more dangerous in recent years, and more broadly, the refugee program has been a major incubator for terrorism.”

The report was requested in light of the Ninth Circuit Court of Appeals’ conclusion that the Trump administration “has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.” The seven counties are Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen.
The senior White House official said the desire to bolster the legal and public case that these seven countries pose a threat is a work in progress and as of now, it’s not clear if DHS and DOJ will offer separate reports or a joint report.
One of the ways the White House hopes to make its case is by using a more expansive definition of terrorist activity than has been used by other government agencies in the past. The senior White House official said he expects the report about the threat from individuals the seven countries to include not just those terrorist attacks that have been carried out causing loss of innocent American life, but also those that have resulted in injuries, as well as investigations into and convictions for the crimes of a host of terrorism-related actions, including attempting to join or provide support for a terrorist organization.
The White House did not offer an on-the-record comment for this story despite numerous requests.

. . . .

Asked about the report Thursday on “The Lead,” Rep. Dan Donovan, R-New York, emphasized that the intelligence community be nonpartisan.
“They should take data, take information, shouldn’t interpret it in a political way and provide the President the information he needs to make decisions to protect our country,” he said.
Also commenting on the report was Richard Haass, the president of the Council on Foreign Relations, who acknowledged that he hadn’t seen the specifics but “it looks wrong to me.”
“We ought to be doing the intel first, then set the policy and in large part based upon the intelligence,” Haass said. “If these reports are true, it’s yet another example where this administration is having real trouble ing a functional relationship with the intelligence community.”

[Emphasis supplied in all quotes]

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I was never a “line litigator.” But, I was involved in defending and prosecuting thousands of cases during the “Legacy INS Phase” of my career. I also participated in thousands more cases as an appellate and trial judge during the last 21 years at EOIR.

One of my jobs in providing litigation assistance as the Deputy General Counsel of the INS was to make sure my “institutional clients” did not comment on pending cases. Such comments both unnecessarily antagonized the judges hearing the cases and, on occasion, when folks didn’t heed my instructions, completely “tanked” our positions by giving our opponents new arguments.

As a sitting judge, I can guarantee that one of the least successful approaches was for a lawyer to insult my intelligence or integrity and then turn around and ask me to help out his or her client. Sure, in the end, I had to separate the law from the lawyer and do the right thing. But, it certainly interfered with the effectiveness of the lawyer’s communication and made it more difficult for me to get to the substance of his or her client’s case.

And, one thing that certainly infuriated all judges, including me, was for a lawyer to represent one thing in court and then have his or her client do something else. It made me lose confidence in the lawyer’s reliability and integrity and his or her ability to control and speak for the client. I can remember “chewing out” several lawyers at Master Calendar for misrepresenting facts or law to me in their briefs or oral arguments.

It appears that the Trump Administration’s combination of arrogance, ignorance, and disrespect for the court system and the role of judges is undermining both their credibility and the credibility of the Department of Justice career lawyers whose job is to represent them over and over again before most of the same judges. Once a judge loses faith in the credibility of a lawyer and/or her or his client, “bad things will happen” and they do.

PWS

02/23/17