"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
So what should we tell our students? Many are dispirited and cynical because, as far into the future as they can see, this court appears likely to do more harm than good to democracy.
First, we shouldn’t hide the reality that judicial decisions often depend on who is on the bench. That has never been more true because the entrenched partisan Senate confirmation process now guarantees that a Supreme Court nominee will be chosen to carry out political and ideological aims. For the first time in American history, the ideology of the justices precisely corresponds to the political party of the president who appointed them. All six conservatives were appointed by Republican presidents and all three liberals were appointed by Democrats.
Until recently, there were moderate liberals, such as John Paul Stevens and David H. Souter, appointed by Republicans, and there were moderate conservatives, such as Byron White and Felix Frankfurter, who had been appointed by Democrats. Trump picked three of the most ideologically conservative judges on the federal bench.
If students are to one day become effective litigators on constitutional rights, they will need to understand the ideologies of the justices interpreting the law. In the past, we certainly discussed the ideology of the justices with our students, but we must focus on it far more now as the ideological differences between the Republican-appointed justices and judges and those appointed by Democratic presidents are greater than they have ever been.
Second, we must remind students that there have been other bleak times in constitutional law when rights were contracted. From the 1890s until 1936, a conservative Supreme Court struck down over 200 progressive federal, state and local laws protecting workers and consumers. In the late 1940s and early 1950s, the court refused to stand up to the hysteria of McCarthyism. The current court will not last forever, though it may feel like that to them.
Third, we should direct focus on other avenues for change. Students need to look more to state courts and legislatures, at least in some parts of the country, as a way to advance liberty and equality. For instance, the Massachusetts Legislature passed a law known as the “Roe Act,” protecting a woman’s right to abortion under state law, no matter what the Supreme Court decides. We need to teach our students how to use the power of local governments to protect fair housing, public education and public health.
Fourth, we must encourage them to look at the sweep of history. In the early 1960s, almost half the states had Jim Crow segregation laws, there were few women going to law school, and every state had a law criminally prohibiting same-sex sexual activity. The Rev. Martin Luther King Jr. was right when he said that the arc of the moral universe is long and it bends toward justice — if we work for it.
There really are just two choices: Give up or fight harder, even if there will be a lot of losses along the way. If we can instill in students a desire to defend justice, even if victory is distant, it will be a good semester, no matter what the Supreme Court decides.
Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion. Jeffrey Abramson is professor of law and government at the University of Texas at Austin.
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Read the full article at the above link.
Sometimes, the best you can do is save as many lives as you can, one at a time. Eventually, it adds up. Also, as the article suggests, it’s critical to get involved and speak out on local political issues. That’s where the fascist far-right has made huge inroads.
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
From our leader and spokesperson “Sir Jeffrey” Chase:
Round Table Brief cited today in Oral Argument
Hi all:To end the week on a positive note, in oral arguments today before the Second Circuit, one of the judges asked the OIL attorney the following:
“What are we to make of the amicus brief filed by so many former IJs who stress the importance of in person hearing in the special role of Immigration Judges in developing the facts before rendering an opinion, particularly in something as factually heavy as this, as undue hardship to the children?They emphasize the importance of hearing in person testimony and suggest that it is an abuse of discretion to not permit it when it is requested.How do you respond?”
The case is Martinez-Roman v. Garland.
. . . .
The IJ wouldn’t let two witnesses testify: the medical expert, and a 13-year-old child of the respondent.So when the judge asked that question, the OIL attorney claimed that the IJ was trying to protect the child from the psychological trauma of testifying.The judges pointed out that the IJ had actually said he wouldn’t allow the testimony only because it would be duplicative.In the child’s case, it was supposedly “duplicative” of a one-page handwritten statement written by the child.In the expert’s case, the IJ admitted that he hadn’t actually read the expert’s written statement, causing the circuit judges to ask how the IJ could have known the testimony would be duplicative of a statement he hadn’t read.
Wishing all a great, safe, and healthy weekend! – Jeff
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Garland’s “amazing” EOIR “judges” can divine the content of statements they never read, while Prelogar’s “equally amazing” DOJ lawyers just “make it up as they go along” when arguing before Article IIIs! https://www.flickr.com/photos/rasputin243/ Creative Commons License
So, Merrick, it’s an “A-OK” judicial practice for your judges to deem live testimony “duplicative” of a statements they never read! That’s some feat of clairvoyance!
“Clairvoyance” appears to be more of a qualification for your “judges” than actual expertise and experience vindicating due process in Immigration Court!
Also, when your attorneys are confronted with the defects in your judges’ performance by Article IIIs who have actually read the record and familiarized themselves with the evidence, (something you apparently deem “optional” for both your IJs and the attorneys defending them) it’s also “A-OK” for your attorneys to fabricate any bogus pretextual excuse, even one that is clearly refuted by the record.
Perhaps, SG Liz Prelogar should take a break from losing cases before the Supremes and pay attention to what nonsense DOJ attorneys are arguing before the lower Federal Courts.What, Liz, is the legality and the morality of defending a broken system, wholly owned and operated by your “boss,” that dishonestly denies due process to the most vulnerable among us?
Harvard Law might have spared Solicitor General Elizabeth Prelogar from having to work in the “legal trenches” of Immigration Court, unlike the lawyers who have been fighting to keep democracy alive over that past five years! Apparently, she took a pass on the Ethics class too, as DOJ lawyers under her overall direction “make it up as they go along” in defending the dysfunctional Immigration Courts before the Article IIIs! PHOTO: Twitter
Is this what they taught you at Harvard law? Did you miss the required course on ethics and professional responsibility? Why is the Round Table doing the work YOU should be doing as a supposedly responsible Government official who took an oath to uphold the Constitution and the rule of law?
Yeah, I know that Prelogar, like her other elitist political appointee colleagues, operates in the “legal stratosphere,” has clerked for two liberal Supremes, and otherwise “punched all the right tickets” in Dem politics. But, the problem here is that like it or not, Immigration Courts are the “retail level” of American justice that affects everything else! Right now, that effect is stunningly and unacceptably adverse!
The GOP White Nationalist nativists, like Sessions, Barr, and their hand-selected toadies, “got that.” That’s why they used their time in office to weaponize EOIR and degrade due process and humanity, while using “Dred Scottification” developed in immigration to diminish and degrade the rights of “the other” throughout our legal and political systems! The dots aren’t that hard to connect, unless, apparently, you’re a Dem Politico serving in the DOJ!
For whatever reason, perhaps because Dems keep appointing politicos who haven’t had to personally confront the mess in Immigration Court, folks like Garland, Monaco, Gupta, Clarke, and Prelogar entertain the elitist belief that standing up to the “nativist appeasers” in the Biden White House, getting rid of bad judges and incompetent administrators at EOIR, and bringing our dysfunctional (“killer”) Immigration Courts into conformity with Constitutional Due Process, international standards, and simple human dignity are “below their pay grade.” Not so!
Have to hope that the Chairman Lofgren and her staff are paying attention and will start throwing more light on Garland’s deficient handling of EOIR and the disgraceful, intellectually dishonest, arguments his attorneys are making before the Article IIIs!
This system is BROKEN, and going into the second year of the Biden Administration, Garland has NOT taken the necessary bold, decisive, yet quite obvious and realistically achievable, steps to FIX it! What gives?
Since Liz has never been a judge, let me provide an insight. No judge, life-tenured or “administrative,” liberal, conservative, or centrist, likes being played for a fool, misled, or “BS’ed” 💩 by counsel. (I actually remember “chewing out” attorneys in open court for failing to acknowledge controlling precedent in arguing before me.)
They particularly hate such conduct when it comes from lawyers representing the USG! Because Federal Judges often come from a bygone generation, many still retain the apparently now long outdated concept that DOJ attorneys should be held to a “higher standard.” Your predecessor, Trump shill Noel Francisco, certainly mocked that belief during his disgraceful tenure at the DOJ, particularly in his disingenuous and aggressive defense of the White Nationalist, anti-immigrant, anti-asylum agenda! Do you REALLY want to follow in HIS footsteps? Sadly, At this early point in time, that answer appears to be “yes.”
So, that leads to another question. Why do progressive human rights and immigration advocates continue to turn out the vote and loyally support a Dem Party that, once in office, considers them, their values, and the human souls they represent to be “expendable” — essentially “fungible political capital?” It’s something I often wondered when I was on the inside watching Dem Administrations screw up EOIR and immigration policy. I still don’t know the answer, and perhaps never will.
Hon. Ilyce Shugall U.S. Immigraton Judge (Retired) Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.
IMMIGRANT LEGAL DEFENSE
FOR IMMEDIATE RELEASE January 10, 2022
Contacts:
Immigrant Legal Defense
Ilyce Shugall, ilyce@ild.org, (415) 758-3765
Siobhan Waldron, siobhan@ild.org, (510) 479-0972
Edwin F. Mandel Legal Aid Clinic, The University of Chicago Law School Nicole Hallett, nhallett@uchicago.edu, (203) 910-1980
Omar Ameen Files Federal Lawsuit Seeking His Release
After the U.S. Government Fails Once Again to Prove Any Connection to Terrorism
San Francisco, CA. Immigrant Legal Defense and the University of Chicago Immigrants’ Rights Clinic have filed a petition for a writ of habeas corpus on behalf of Omar Ameen seeking his immediate release from immigration custody. Mr. Ameen has been held by the U.S. government for over three years based on false allegations that he was involved in terrorism in Iraq before he arrived in the United States as a refugee. Multiple courts have now rejected those allegations. The petition alleges that his continued detention in these circumstances violates the Due Process Clause and the Immigration and Nationality Act.
After an investigation initiated by the Federal Bureau of Investigations (FBI) and the Department of Homeland Security (DHS), the Iraqi government issued a warrant for his arrest in connection with the 2014 murder of a police officer in Rawa, Iraq. Mr. Ameen was subsequently arrested by U.S. authorities in August 2018 and placed in extradition proceedings, with the government arguing that not only was Omar responsible for the 2014 murder, but that he also occupied a leadership position in ISIS. After two and a half years of fighting his extradition, the federal magistrate judge found that the warrant was not supported by probable cause because Mr. Ameen had been in Turkey, not Iraq, at the time of the murder. He further found that there was no evidence that Mr. Ameen was an ISIS leader and ordered his immediate release.
Instead of releasing him or charging him with a crime, DHS took Mr. Ameen into immigration custody, and placed him in removal proceedings before the Department of Justice (DOJ). DHS abandoned the murder claim, but otherwise made the same terrorism allegations against Mr. Ameen in immigration court that had been made – and rejected – in the extradition proceedings. After months of proceedings, the immigration judge found that the government had not proved that Mr. Ameen had any involvement with terrorism, yet still denied him bond while he seeks relief from deportation. Mr. Ameen continues to fight for his freedom, to remain in the United States, and to clear his name.
“It is a fundamental principle that the government cannot detain someone based on unsubstantiated rumors and unproven accusations,” said Ilyce Shugall, an attorney with Immigration Legal Defense (ILD) and a member of Mr. Ameen’s legal team. “The government keeps losing, yet continues to believe it can detain Omar indefinitely without cause. The Constitution does not allow such a cavalier denial of individual liberty.”
“Omar’s bond request was denied by the same agency – the Department of Justice – that has maliciously targeted for him years. Omar deserves a fair hearing in federal court,” said Siobhan Waldron, another ILD attorney on Mr. Ameen’s legal team.
“The government seems to think that it can do whatever it wants as long as it invokes the word ‘terrorism,’” said Nicole Hallett, director of the Immigrants’ Rights Clinic at the University of Chicago Law School, “Rather than admit it was wrong about Omar, the government will go to extraordinary measures to keep him locked up. We are asking the federal court to put a stop to this abuse of power.”
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Immigrant Legal Defense’s mission is to promote justice through the provision of legal representation to underserved immigrant communities.
The Immigrants’ Rights Clinic is a clinical program of the University of Chicago Law School and provides representation to immigrants in Chicago and throughout the country.
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Unfortunately, “cavalier denial of individual liberty” largely describes the daily operations of Garland’s dysfunctional and hopelessly backlogged “wholly owned Immigration Courts” — where due process, scholarship, quality, and efficiency are afterthoughts, at best. “Malicious targeting” — that’s a Stephen Miller specialty shamelessly carried forth by Garland in too many instances! Miller must be gratified, and not a little amazed, to find that the guy Dem progressives and human rights advocates thought would be leading the charge to undo Miller’s White Nationalist, scofflaw attack on migrants and people of color would instead be proudly “carrying his water” for him.
To punctuate my point, today Garland’s Solicitor General will follow in the disgraceful footsteps of predecessors in both GOP and Dem Administrations. Essentially (that is, stripped of its disingenuous legal gobbledygook), the SG will argue that individuals, imprisoned without conviction, struggling to vindicate their rights before Garland’s broken, backlogged, and notoriously pro-Government, anti-immigrant Immigration Courts, renowned for their sloppiness and bad judging, are not really “persons” under the Constitution and therefore can be arbitrarily imprisoned indefinitely, in conditions that are often worse than those for convicted felons, without any individualized rationale and without recourse to “real” courts (e.g., Article III courts not directly controlled by the DOJ).
“The right-wing majority on the Supreme Court seems to be planning to eliminate the only way a lot of people in immigration detention can challenge their imprisonment,” appellate public defender Sam Feldman commented in a quote-tweet. “People would still be held illegally, but no court could do anything about it.”
One might assume that our nation’s highest Court would unanimously make short-shrift of the SG’s scofflaw arguments and send her packing. After all, that’s what several lower courts have done! But, most experts predict the exactly opposite result from a Supremes’ majority firmly committed to “Dred Scottification” — that is de-humanization and de-personification” — of people of color and migrants under the Constitution.
It’s painfully obvious that Congress must create an independent Article I Immigration Court not beholden to the Executive Branch. But, don’t hold your breath, given the current political gridlock in Washington. It’s equally clear that the Article IIIs, from the Supremes down, have “swallowed the whistle” by not striking down this blatantly unconstitutional system, thereby forcing Congress to take corrective action to bring the system into line with our Constitution.
In the meantime, Garland could bring in better-qualified expert judges, reform procedures, and appoint competent professional administrators who would institutionalize fairness, efficiency, and independence that would help transition the Immigration Courts to a new structure outside the DOJ. He could stop echoing Stephen Miller in litigation.
He could have replaced the architects of “Aimless Docket Reshuffling” and exponentially growing back logs with practical scholars and progressive experts who could reduce backlogs and establish order without violating human or legal rights of individuals. He could have set a “new tone” by publicly insisting that all coming before his Immigration Courts be treated fairly, with respect, dignity, and professionalism.
But, instead, Garland has stubbornly eschewed the recommendations of immigration and human rights experts while allowing and even defending the trashing of the rule of law at the border and elsewhere where migrants are concerned. He’s also done it with many questionably qualified “holdover” judges and administrators appointed by Sessions and Barr because of their perceived willingness, or in some cases downright enthusiasm, to stomp on the legal and human rights of asylum seekers and other migrants.
It’s curious conduct from a guy who once was only “one Mitch McConnell away” from a seat on the Supremes! I guess the “due process” Garland got from McConnell and his GOP colleagues is all that he thinks migrants and other “non-persons” of color get in his wholly-owned “courts.”
Good luck to our Round Table colleague, Judge Ilyce Shugall, and her great team, on this litigation! Obviously, the wrong folks are on the Federal Bench — at all levels of our broken and floundering system.
Interestingly, Judge Shugall was once an Immigration Judge until forced to prematurely resign, as a matter of conscience, by the lawless anti-immigrant policies of the Trump Administration carried out through its DOJ. As in many cases, the Government’s loss is the Round Table’s gain!🛡⚔️
So far, defending this guy and his cruel policies is about the only thing that Judge Garland has done well at a DOJ that continues to treat “justice” for migrants of color as a joke! Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.comUnlike Miller, the “losers” under Garland’s unconscionable policies often aren’t in a position to complain — at least in this world! EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
On Thursday, a federal appeals court allowed the continued use of the Title 42 policy, pushed initially through the previous administration by Stephen Miller, that’s used the novel coronavirus pandemic as an excuse to quickly deport asylum-seekers, including thousands of Haitians who have arrived at the southern border in search of help.
The Biden administration was set to be blocked from using the policy against families, following a federal judge’s order earlier this month. That lower court order was set to go into effect Thursday. But the policy was saved by the Biden administration, which had shockingly appealed the lower court’s decision. To be clear, the administration could have let the lower court decision stand. But it decided to protect this scientifically unsound order for continued use.
“It’s troubling to see the court grant the government’s motion to reinstate Title 42 just days after the district court ruled that its policy violates U.S. law,” Oxfam America global policy lead Noah Gottschalk told NBC News. The group is among the organizations that have led lawsuits against the policy. “We all saw the horrific images of the abuse faced by Haitian asylum-seekers subjected to Title 42, and we cannot allow people to face further harm because of this xenophobic policy.”
Department of Homeland Security Sec. Alejandro Mayorkas has claimed it is continuing Title 42 “out of a public health need.” Meanwhile, White House Press Sec. Jen Psaki has defended the policy as “a public health requirement.” That’s complete bullshit. “Vice President Mike Pence in March directed the nation’s top disease control agency to use its emergency powers to effectively seal the U.S. borders, overruling the agency’s scientists who said there was no evidence the action would slow the coronavirus,” The Associated Press (AP) reported last October.
The previous administration got its way by twisting arms. There was no science involved, only anti-immigrant and anti-asylum animus. “That was a Stephen Miller special. He was all over that,” a former Pence aide told the AP.
And, as vaccines have become readily available, the supposed rationale to keep Title 42 in place has only gotten more flimsy. If this is truly all about public health, why not rescind the policy and offer families the single-shot Johnson & Johnson vaccine? “Let me also remind the Biden administration that over 300,000 people cross the border from Mexico every day through ports of entry,” American Immigration Council Policy Counsel Aaron Reichlin-Melnick tweeted in July. “None are given COVID tests, unlike migrants who all get tested and nearly all get vaccinated.”
. . . .
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“Miller Lite” – Garland’s Vision of “Justice @ Justice” for Communities of Color — Progressive human rights experts and migrants of color haven’t been welcome at Garland’s DOJ “Happy Hours” where Stephen Miller’s policies, his judicial appointments, and his dysfunctional “star chamber” immigration courts are celebrated, defended, and even “enhanced!”
Read more about this legal, moral, and political travesty perpetrated by the Biden Administration with Garland’s support at the link.
When it comes to things like defending ending the reprehensible “killer-program” known as “Remain in Mexico” or protecting the DACA program, Garland’s litigation team has fared poorly.
They also have drawn raised eyebrows, even if not yet any ethical complaints, from Article III Judges for their questionable representations and disingenuous defense of wrongfully issued BIA final orders of removal.
Perhaps, part the problem is that after four years of “anything goes” often misleading, sometimes downright dishonest, defense of the Trump/Miller White Nationalist xenophobic, often misogynistic, dehumanizing agenda, their hearts aren’t in it. The other glaring problem is the obvious lack of commitment to progressive humanitarian values, due process for all, and “cleaning house” at a broken and dysfunctional DOJ that has been shown by Garland.
Obviously, Garland’s DOJ lawyers are more at home and more successful when when arguing for intellectually dishonest and unconstitutional dehumanization (or “Dred Scottification”) of “the other,” primarily individuals of color who are the most vulnerable among us.
What a totally disgraceful legacy for a guy that was once just “one Moscow Mitch” away from the Supremes! On the other hand, it now appears that the GOP right wingers wouldn’t have had much to fear from a guy who won’t stand up for liberal American democratic values or even simple human decency! I doubt that he would have presented much threat to the far-right, anti-American agenda!
“Due Process Forever!”Hmmm, where have I herd THAT before? Thanks, Dan, for all you do for the NDPA!
The American Immigration Council, the National Immigration Alliance, and the Law Professors, all representing a number of other organizations, also filed in behalf of the “good guys, truth, justice, and the American way,” in this case. The respondents are expertly represented by my friend and legendary immigration advocate Ira J. Kurzban, Esquire, of Kurzban Kurzban Tetzeli and Pratt PA.
Ira Kurzban ESQUIRE Legendary American Immigration Lawyer
One could not imagine a group MORE in need of thorough, critical, independent Article III judicial review of its decisions than today’s dysfunctional EOIR!There, potentially fatal errors have been “institutionalized” and even “normalized” as just another “unavoidable” consequence of the anti-immigrant, “haste makes waste,” “culture” that constantly places churning out removal orders above due process, fundamental fairness, and best practices!
Ironically, doubling the number of Immigration Judges, eliminating expertise as the main qualification in judicial selections, and forcing yet more “gimmicks” down their throats has actually nearly tripled the case backlog to an astounding 1.4 million cases, without producing any quantifiable benefit for anyone!
Obviously, it’s high time for Garland to “reinvent” EOIR with progressive experts, many with private sector Immigration Court experience, as judges and leaders at both the appellate and the trial level! Who knows what wonders might result from an emphasis on quality, humanity, and getting decisions correct in the first instance? Progressives are used to creatively solving difficult problems without stepping on anyone’s rights or diminishing anyone’s humanity! Those skills are in disturbingly short supply at today’s failed and failing EOIR! And, they aren’t exactly DOJ’s “long suit,” either.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Jeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com Republished under licenseBill Barr Consigliere Artist: Pat Bagley Salt Lake Tribune Reproduced under license
Judge Garland wonders whether there could be some “problems” with these guys and their corrupt agendas. Meanwhile, his DOJ continues to sink deeper into the muck every day! Hey, what’s the rush? It’s “only justice” and human lives at stake here! Garland seems to think that can’t compare with protecting important “Departmental prerogatives” to cover up past and perpetuate future injustices @ Justice! He’s wrong! Dead wrong in some cases!
Donald Trump never did much to hide his dangerous belief that the US justice department and the attorneys general who helmed it should serve as his own personal lawyers and follow his political orders, regardless of norms and the law.
Former senior DoJ officials say the former president aggressively prodded his attorneys general to go after his enemies, protect his friends and his interests, and these moves succeeded with alarming results until Trump’s last few months in office.
The martyr who may rise again: Christian right’s faith in Trump not shaken
But now with Joe Biden sitting in the Oval Office, Merrick Garland as attorney general and Democrats controlling Congress, more and more revelations are emerging about just how far Trump’s justice department went rogue. New inquiries have been set up to investigate the scale of wrongdoing.
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Trump’s disdain for legal principles and the constitution revealed itself repeatedly – especially during Bill Barr’s tenure as attorney general, during most of 2019 and 2020. During Barr’s term in office, Trump ignored the tradition of justice as a separate branch of government, and flouted the principle of the rule of law, say former top justice lawyers and congressional Democrats.
In Barr, Trump appeared to find someone almost entirely aligned with the idea of doing his bidding. Barr sought to undermine the conclusions of Robert Mueller’s inquiry into Russian interference in the 2016 elections, independent congressional oversight, and Trump critics in and out of government, while taking decisions that benefited close Trump allies.
But more political abuses have emerged, with revelations that – starting under attorney general Jeff Sessions in 2018 – subpoenas were issued in a classified leak inquiry to obtain communications records of top Democrats on the House intelligence committee. Targets were Adam Schiff and Eric Swalwell, who were investigating Kremlin election meddling, and also several committee staffers and journalists.
Democrats in Congress, as well as Garland, have forcefully denounced these Trumpian tactics. Garland has asked the department’s inspector general to launch his own inquiry, and examine the subpoenas involving members of Congress and the media. Congressional committees are eyeing their own investigations into the department’s extraordinary behavior.
“There was one thing after another where DoJ acted inappropriately and violated the fundamental principle that law enforcement must be even-handed. The DoJ must always make clear that no person is above the law,” said Donald Ayer, deputy attorney general in the George HW Bush administration.
Ayer thinks there could be more revelations to come. “The latest disclosure of subpoenas issued almost three years ago shows we don’t yet know the full extent of the misconduct that was engaged in.”
. . . .
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Read the full article at the link. Once again, thanks to Don Ayer, a former colleague in both public and private practice, for speaking out!
Don Ayer American Lawyer Former U.S. Deputy Attorney General Photo: www.ali.org
The record of anti-immigrant, White Nationalist bias at EOIR and the DOJ’s “Dred Scott” approach to justice for asylum applicants and other migrants is crystal clear! Thanks to the NDPA, courageous journalists, some “inside sources,” and the remarkable number of rebuffs from Federal Courts, the record on misfeasance and bias at EOIR, OIL, and the SG’s Office is clear.
For example, there is no “issue” that Sessions’s “child separation policy” violated the Constitution, that he and other Government officials like Rod Rosenstein and Kristen Nielsen lied about it ( ‘We Need to Take Away Children,’ No Matter How Young, Justice Dept. Officials Said
https://www.nytimes.com/2020/10/06/us/politics/family-separation-border-immigration-jeff-sessions-rod-rosenstein.html?referringSource=articleShare), and that the DOJ attorneys defending this abomination at least failed to do “due diligence” and probably misrepresented to Federal Courts.
In many illegal child separation cases, as the Biden Administration is discovering, the damage is irreparable! Yet, only the the victims have suffered! The “perps” go about their daily business without accountability!
Every day, Garland’s lackadaisical approach to restoring “justice @ Justice” and his apparent indifference to individual human rights and fair judging continue to harm vulnerable asylum seekers and other individuals and disintegrate our legal system. It’s “not OK!”
Progressives and members of the NDPA must recognize, if they haven’t already, that they can’t count on Garland! They will have to continue to use litigation, legislation, oversight, FOIA, public opinion, and political pressure to get the immediate common sense progressive reforms and overdue personnel changes that Garland, Monaco, Gupta, and Clarke are avoiding. Garland might view “justice” as too abstract a concept to require his immediate attention. Many of us don’t agree!
“When will it end, Judge G? When will it ever end?” –“She struggled madly in the torturing Ray” Amazing StoriesArtist Unknown, Public domain, via Wikimedia Commons
PANEL:Mary M. Schroeder and Marsha S. Berzon, Circuit Judges, and Salvador Mendoza, Jr.,* District Judge.
OPINION BY: Judge Mendoza
STAFF SUMMARY:
Granting Ravinder Kaur’s petition for review of a decision of the Board of Immigration Appeals, and remanding, the panel held that the Board erred in concluding that Kaur failed to establish material changed circumstances to warrant an exception to the time limitation on her motion to reopen, and in concluding that she failed to establish prima facie eligibility for asylum, withholding of removal, or protection under the Convention Against Torture.
Kaur sought to reopen her removal proceedings based on a combination of changed personal circumstances – the death of her abusive husband and his family’s threats that they would kill her if she returned to India because she was responsible for his death, and changed country conditions – including worsening conditions in India for women and widows.
The panel held that the Board mischaracterized the record and erred in concluding that Kaur presented evidence of only changed personal circumstances in support of reopening. The panel explained that while a self-induced change in personal circumstances does not qualify for the changed circumstances exception, that principle cannot apply rigidly when changed circumstances in the country of origin, while personal to the petitioner, are entirely outside her control, as was the case here. The panel further
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
KAUR V. GARLAND 3
explained that even where any change in personal circumstances is voluntary and did not originate in the country of nationality, the changed circumstances exception applies where changes in personal circumstances are made relevant due to changes in country conditions. The panel wrote that Kaur’s husband’s death, and his family’s death threats, were made relevant by increased violence in India against women, and in particular against widows. The panel further wrote that, contrary to the Board’s determination that Kaur provided evidence of only generalized conditions, Kaur presented evidence demonstrating that the prevalence and severity of human rights violations against women and widows had materially worsened in many respects.
The panel held that the Board also erred in concluding that Kaur failed to establish prima facie eligibility for asylum and withholding of removal relief. First, the panel concluded that the Board erred in determining that Kaur failed to establish that a protected ground, including her membership in a family social group, would be one central reason, or a reason, for the harm she fears. The panel wrote that a person may share an identity with a persecutor, and if a member of a particular social group is persecuted by other members of that same group because those members perceive the applicant as being “insufficiently loyal or authentic” to that group, she has been persecuted on account of a protected ground. Second, the panel concluded that the Board erred by requiring Kaur to show that her similarly situated family members had been mistreated. The panel explained that the safety of similarly situated members of the family who remained in the country of origin may be pertinent to a claim of future persecution, but does not itself disprove it, and in this case, the Board relied on the safety of Kaur’s daughter, who was not similarly situated. Third, the
4 KAUR V. GARLAND
panel concluded that the cultural context and Kaur’s evidence established more than a mere personal vendetta.
The panel held that the Board erred in concluding that Kaur failed to establish prima facie eligibility for CAT protection. First, the panel held that the Board erred in applying a “more likely than not” standard, rather than requiring Kaur to show a “reasonable likelihood” of meeting the statutory requirements for CAT protection. Moreover, the panel concluded that the Board abused its discretion in determining that Kaur did not meet the government consent or acquiescence requirement. The panel pointed out that Kaur presented evidence that her husband’s family is wealthy and has the means of carrying out their threats, that India suffers from widespread corruption, and that officials respond ineffectively to crimes, especially those against women. Based on that evidence, the panel concluded that the Board did not have substantial evidence to dismiss Kaur’s fears as speculation.
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This is outrageous! In addition to raising issues about Garland’s failure to replace the “Killer BIA” with real progressive judges who are experts in human rights, due process, and immigration law, as almost every expert recommended, it raises serious concerns about Associate AG Vanita Gupta’s inexplicable failure to bring in litigation competence at OIL. Presenting and defending this mess as acceptable performance by DOJ quasi-judicial officials raises very serious ethical questions about both the “judges” and the attorneys defending their obviously defective, bias-based, anti-asylum, anti-female work product.
As many of us have been saying ever since the election, the “thorough housecleaning” at DOJ can’t wait! There is plenty of evidence to get the government lawyers participating in this mockery of justice out of leadership and decision-making positions, at a minimum! The fact that this case was argued under the Trump regime does not change the unethical performance at OIL or the incompetence of the BIA. Folks who “go along to get along” with violations of law and ethics, particularly in support of a White Nationalist agenda, should not be holding responsible Government legal positions. PERIOD!
Every individual and group who believes in due process, equal justice, gender fairness, good government, humanity, racial justice, and legal ethical norms should be demanding that Garland, Monaco, Gupta, and Clarke change leadership at EOIR, immediately relieve and replace (even if on a temporary basis) the BIA, and bring ethics, expertise, and competence to OIL.
Kristen Clarke, some the most outrageous “civil rights abuses” in America here taking place right at the DOJ — at EOIR and OIL! Others are “hidden in plain sight” at DHS, particularly in their “New American Gulag.” You’re NOT going to solve voting rights, police misconduct, or any other civil rights problem inAmerica without first getting the DOJ’s house in order. And, that means standing up to your dawdling and, to date, remarkably ineffective “political bosses” and demanding immediate change!
It’s YOUR REPUTATION, along with the lives of refugee women like Ms. Kaur, that are on the line here!
This appears to be Judge Garland’s vision of “justice” for migrants and people of color @ Bailey’s Crossroads. Isn’t it time to put the past behind us and move forward with housecleaning and reforms at EOIR? Ask Judge Garland “What are you thinking, man?” Is this YOUR vision of due process and expert “judging?” — Public Realm
Thamotar v. U.S. Att’y Gen., 11th Cir., 06-17-21, Published
PANEL: WILSON, JILL PRYOR and LAGOA, Circuit Judges.
OPINION: JILL PRYOR, Circuit Judge
KEY QUOTE:
Visavakumar Thamotar, a Sri Lankan citizen of Tamil ethnicity, seeks review of the Board of Immigration Appeals’ (“BIA”) order affirming an Immigration Judge’s discretionary denial of his application for asylum and grant of withholding of removal. Mr. Thamotar argues that because removal was withheld, federal regulation 8 C.F.R. § 1208.16(e)1 required reconsideration of his asylum claim, which the Immigration Judge and BIA failed to give. We agree with Mr. Thamotar that the agency failed to conduct the proper reconsideration. When an asylum applicant is denied asylum but granted withholding of removal, 8 C.F.R.
§ 1208.16(e) requires reconsideration anew of the discretionary denial of asylum, including addressing reasonable alternatives available to the petitioner for family reunification.2 And where the Immigration Judge has failed to do so, the BIA must remand for the Immigration Judge to conduct the required reconsideration.
Here, the Immigration Judge failed to reconsider Mr. Thamotar’s asylum claim under § 1208.16(e). The BIA’s failure to remand on this issue was therefore
1 Mr. Thamotar refers to both 8 C.F.R. §§ 208.16(e) and 1208.16(e) in his briefing. The two provisions are identical in substance, but § 1208.16(e) specifically applies to the BIA (and Immigration Judges) because of the enactment of the Homeland Security Act of 2002, Pub. L. No. 107-296, tit. IV, subtits. D, E, F, 116 Stat. 2135, 2192 (Nov. 25, 2002) (as amended), and the promulgation of final rule 68 Fed. Reg. 9823, effective February 28, 2003. 68 Fed. Reg. 9823, 9824–25, 9834 (Feb. 28, 2003); see Huang v. INS, 436 F.3d 89, 90 n.1 (2d Cir. 2006) (discussing this legislative history). For consistency, we will refer only to 8 C.F.R. § 1208.16(e).
2 Because we vacate the BIA’s order on this ground, we do not address Mr. Thamotar’s additional challenges to the order, which included that the BIA erred by affirming the Immigration Judge’s adverse credibility determination, which he contends was not supported by substantial evidence, and relying on his method of entry into the United States when affirming the Immigration Judge’s decision.
2
USCA11 Case: 19-12019 Date Filed: 06/17/2021 Page: 3 of 32
manifestly contrary to law and an abuse of discretion. It is clear that neither the Immigration Judge nor the BIA conducted the proper reconsideration because the record contained no information about Mr. Thamotar’s ability to reunite with his family, information that the agency must review under § 1208.16(e). Thus, the BIA should have remanded the case for further factfinding. We grant the petition, vacate the BIA’s order, and remand to the BIA with instructions to remand to the Immigration Judge for reconsideration of the discretionary denial of asylum.
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Lots of work for a bogus asylum denial by EOIR! And the utter nonsense isn’t over! Just a “remand” to give EOIR yet another chance to deny for specious reasons (as they have already done twice). Thisidiocy will continue until Judge Garland replaces the BIA with real judges who will properly, fairly, and timely apply the law and regulations!
The poor analysis of the IJ, mindlessly affirmed by the BIA, failed to come anywhere close to the “most egregious adverse factors” requirement of the BIA’s own precedent in Matter of Kasinga, 21 I&N Dec. 357, 367 (BIA 1996):
A grant of asylum to an eligible applicant is discretionary. The final issue is whether the applicant merits a favorable exercise of discretion. The danger of persecution will outweigh all but the most egregious adverse factors. Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987).
Get this, folks! The IJ and the BIA both found that meeting the higher standard for withholding of deportation based on probability of persecution somehow was an “adverse factor” that outweighed family separation! That’s right, an “adverse factor!”
I can’t imagine how this gang of so-called “judges, got through law school and admitted to the bar! Maybe “imposters” took their exams for them! THIS is the best American justice has to offer? If not, why are they making life or death decisions and imposing potential permanent family separation on refugees?
Notwithstanding the assembly line climate and lackadaisical approach to law in Garland’s Immigration “Courts,” these are NOT TRAFFIC COURTS! They are more like “death penalty courts” or “courts of last resort” and those humans appearing before them and their representatives deserve better.
Judge Garland and his team should hypothesize that this type of inferior justice were being meted out in life or death cases to THEIR FAMILY MEMBERS AND LOVED ONES — actual human beings, NOT “just migrants” who, according to Garland’s EOIR, appear to exist in a twilight zone beneath the rest of humanity. That’s what the ongoing “Dred Scottification of the other” still being permitted andpromoted by Garland at DOJ is all about!
A fitting celebration of the first Federal Juneteenth Holiday would have been to remove the entire BIA so that they can no longer inflict “Dred Scottification” on migrants of color, their families, their friends, and their communities, among others! Symbolism is only effective if followed by action. And, so far, Garland’s actions on wiping out the “vestiges of Dred Scott at Justice” have fallen woefully short!
This raises serious, unaddressed questions of why such weakly qualified individuals are on the bench in the first place when there are many immigration experts out there who can and would do better. Much better!And it wouldn’t take them years and multiple hearings, appeals, and trips to the Circuit to grant asylum.
This isn’t a “deep” case except that it represents the “deep dodo” 💩 at EOIR, the stench of which is fouling our entire justice system and shaking the foundations of our democracy! This case is about following the Code of Federal Regulations, properly applying precedent, and fairly treating asylum seekers. It’s “Law 101” — things L-1s would have to know to get to L-2! I can’t begin to think what the paper would look like like if one of my students gave me this kind of garbage on a final exam. Fortunately, to date, nobody ever has!
Those who want a more complete run down of the ongoing “Atlanta disgrace” — a cancer on our justice system — should just go to the “Atlanta Immigration Court” tab on immigrationcourtside.com. There is more than enough compiled to have triggered an investigation, removals from office, and corrective action in a functioning Government! And my collection is just “the tip of the iceberg” on what has been written about the disgraceful, systemic denial of fairness, impartiality, and justice in Atlanta!
And, why was OIL defending this ridiculous mess in the first place? It’s a “comedy” of errors, questionable ethics, and amateurish legal work that the DOJ should be ashamed of and which Garland should end — NOW! No wonder this ridiculous national embarrassment has created an unnecessary 1.3 million case backlog that continues to grow under Garland!
Don’t let Garland or anyone else in the Administration tell you that this self-created backlog justifies a truncation of due process or more “bogus attempts to expedite” asylum cases. NO! What it requires is for Garland to bring in real judges and experts from the private/NGO sector to fix the Immigration Courts so they comply with due process and fundamental fairness!
Judge Garland, “come on man!” These deadly robed clowns and their “defenders” represent YOU — “the top legal officer in our Executive Branch!” YOU have a responsibility to the American people (NOT just the failed DOJ or the President) to “get out the big hook” and “yank” these anti-due process, anti-immigrant, anti-asylum, anti-racial-justice clowns 🤡 off YOUR bench and replace them with competence and fairness. A little (now missing) diversity wouldn’t hurt either! It’s called fulfilling the promises made by Biden and Harris during the election!
It’s not going to improve until Garland replaces the BIA with qualified judges, hires only Immigration Judges who know how to fairly adjudicate asylum cases, (with outstanding public reputations for fairness, scholarship, timeliness, teamwork, and respect), and AAG Vanita Gupta brings in better leadership at OIL to put an end to this tragic, totally unnecessary, disgracefully wasteful abuse of our Federal Judicial system and the resulting human carnage!
NDPA warriors, don’t be fooled or lured into complacency by this week’s long overdue positive developments in A-B- and L-E-A- — things that experts said should have been done by Judge Garland on “Day 1.” Keep showing your total dis-satisfaction and disgust with the glacial pace of reform at DOJ and the myriad of highly unqualified “judges” still being allowed to continue to inflict racial injustice and “worst imaginable practices” on vulnerable individuals (and their lawyers) who are entitled to due process and justice — not a continuing deadly ☠️ clown 🤡 show! Keep letting Garland, Monaco, Gupta, Clarke, Biden, Harris, Congress, the Article IIIs, and the American people know that “The EOIR Clown Show Has Got To Go!” NOW! There will be neither racial justice nor equal justice for all in America (wake up, Vanita Gupta and Kristen Clarke) while Garland operates his “star chamber courts” at EOIR!
Hi, Judge Garland! This is how “justice” is administered in the 11th Circuit Immigration Cours and at the Bailey’s Crossroads’ Tower. Glad you like it! I guess the screams of the innocent can’t be heard across the river! Not even sure why you would need a law school degree to be “judges” in your EOIR star chambers. It’s really just about dehumanization, degradation, and “productivity!” — Public realm
🇺🇸Due Process Forever! Garland’s “Asylum Free Zones,” Never!
A fascinating twist on the factual scenario in Niz-Chavez is what to do if your client had an NTA with a so-called “fake date.” The “fake date” problem is one you will remember well if you practice immigration law before EOIR, and it garnered national attention in 2019 when ICE issued these fake dates for thousands of immigrants, many of whom showed up in court only to find that there was nothing on any judge’s docket to indicate they were scheduled for a hearing that day. Reports of fake dates were prevalent in Dallas, Orlando, Miami, Seattle, and I am sure other places as well. See news articles such as this one. In addition, and as a separate matter, there was a well-known so-called “parking date” (November 29) issued on thousands of NTAs and that was also never a “real date” as everyone knew.
There is an interesting theory about why the “fake dates” were issued in the first place: that the government was trying to respond to Pereira v. Sessions itself. Despite its argument in federal court to try to restrict Pereira as much as possible, in practice ICE tacitly was affirming, so the argument goes, that in Pereira the Supreme Court had defined, as we have argued all along, what is and what is not a proper and valid NTA. In an effort to immunize itself from responsibility for defective NTAs without any time or place of hearing, ICE thought it might make sense to input “fake dates” in their NTAs, thus (at least superficially it would seem) immunizing itself from the argument that the NTAs were defective for “lack” of a real date and place. Then the “real date” – according to the argument – could be issued as a follow-up in the form of a notice of hearing by EOIR.
The question now arises whether clients with fake-date NTAs can utilize Pereira and now Niz-Chavez to defeat the “stop-time” effect for cancellation of removal, where such fake NTAs existed, even where there is a subsequent notice of hearing with a “real date” from EOIR. The short answer is “Yes” – and I will discuss in the rest of this article why this should be the case and why it should not come as a surprise for several reasons.
It is arguably a much stronger case for the application of Niz-Chavez because the issuance of a “fake date” that was never intended to be used by EOIR in any way is affirmatively wrong. It is not just mere negligence by leaving “TBA” with a blank date and place of hearing on the NTA. ICE should not be able to hide behind an NTA where the information is filled in on the NTA but the information is patently false and made up or fabricated. Just as an asylum seeker who fabricates a date or other information on their forms cannot benefit from such information in applying for relief before the court, the government should get no benefit either from their incorrect and misleading actions. The counter-argument from the government will be that the NTA was valid “on its face” since it had some “date and place” in the document and therefore (a) stopped time for cancellation purposes and (b) conferred jurisdiction because it was “facially” valid.
This counter-argument is flawed. To embrace such a rationale would exalt form over substance. It also would allow an agency to game the system. It would also defeat the very mechanism that the Supreme Court set out in Pereira and now Niz-Chavez. Respondent should be entitled to reopen their proceedings in all “fake date” cases since a valid NTA was not filed in the immigration court. The only remaining issue will be proof. The respondent and his or her attorney will have to prove there was no hearing that was actually held on that day. If no hearing existed at all, then the stop time rule should not apply and the fake NTA cannot be “cured” by a subsequently issued notice by a different agency, that is EOIR, as per Niz-Chavez.
Finally, in reopening a client’s case it would be helpful if there were a showing of some effort on the part the respondent to check. Proof may be difficult and EOIR FOIA and other investigation will be important. Ideally, the client or the their attorney or both went to court but no hearing was on the docket that day, and there was an effort to check that was documented in some way. If there never was receipt of the NTA at all, whether containing a fake date or not, and an in absentia order was issued, then the question becomes whether jurisdiction could have vested at all in such a case. As I have argued, if the NTA is defective it cannot result in the vesting of jurisdiction. A fake date and place arguably cannot confer jurisdiction, even if the NTA was filed with the court. Since there was no hearing actually scheduled the NTA should be found defective under Pereira and Niz-Chavez.
K[evin] J[ohnson]
********************
Sure sounds to me like ‘affirmative misconduct” by the USG that should stop them from relying on the “fake dates. In the “old days,” INS actually used to settle potential “affirmative misconduct” cases, rather than litigate.
By contrast, today’s DOJ seems perfectly willing shamelessly to defend a wide range of legally and ethically questionable conduct and then “blow off” criticism from the Article III Judiciary. Recently, a frustrated U.S. District Judge referred to Bureau of Prisons officials as “idiots.”
One might have thought that would have spurred some type of apology and corrective action from the DOJ. But, that doesn’t seem to have registered with Garland. He just keeps rolling along with Barr’s “Miller Lite” appointments while dissing advice from progressives who actually helped put him in his current job. About the only thing you can count on from Dems is that when it comes to progressive immigraton reforms and EOIR, they’ll blow it!
Thanks, Geoffrey, for your timely and creative “practical scholarship.” Of course with better leadership, the Biden Administration could solve this problem without protracted litigation that often takes years and produces inconsistent results before the Supremes or Congress can resolve them. In the meantime, lives unnecessarily are ruined and the system becomes more inefficient and unfair.
Garland should appoint progressive practical scholars like Geoffrey to the BIA and senior management at EOIR, OIL, OLP, and the SG’s Office and let them “lead from above” — rather than having to fight bad interpretations and worst practices from the outside.
In this case, the DHS/EOIR “fake date policy” was both fraudulent and unethical. Remember that some folks actually showed up at Immigration Court buildings, often with families in tow, after having traveled hundreds of miles, @ 3:00 AM on Sunday mornings (or on a Federal Holiday or some other bogus date) only to find out that the “joke” was on them.
And, let’s not forget folks, that thanks to the BIA’s permissive attitude (when it comes to the Government, but not with individual rights), under the now “being phased out” “Remain in Mexico Program” (a/k/a “let “em Die In Mexico”), folks basically got NTAs with the equivalent of this: “Maria Gomez, somewhere on some Calle in Tijuana, Mexico.” But, the BIA said that this was basically “good enough for Government work.”
We should also remember that the Fifth Amendment’s Due Process Clause guarantees the individual’s rights against the Government, not the other way around! But, you sure wouldn’t know that from reading BIA and AG precedents issued under the Trump kakistocracy.
Meanwhile, IJs and the BIA under Garland continue to “in absentia” folks for being a few minutes late for a hearing or misreading an NTA in a language they can’t understand. Anybody had a problem with their U.S. Mail lately? We have, in our “upper middle class neighborhood” in Alexandria, VA. Yet, EOIR and some Article IIIs continue to promote the “legal fiction” of a “presumption of proper (and timely) delivery” of notices sent by regular U.S. Mail.
Until, Garland has the backbone to restore ethics and the rule of law at EOIR and the rest of the DOJ, particularly by reassigning or otherwise removing those who “went along to get along” and replacing them with ethical, qualified, experts from the NDPA who will speak truth to power and hold immigration enforcement bureaucrats accountable, our justice system will continue its tailspin!
Not only was Barr being personally “disingenuous” by announcing his decision before the Mueller report was released and pretending he used the report to reach a conclusion instead of simply announcing the one he’d come to beforethe special counsel’s work had even finished his work, she wrote, “but DOJ has been disingenuous to this Court.”
“The fact that (Trump) would not be prosecuted was a given,” the judge wrote. In reality, it was a given from the moment Barr was appointed by Trump, as the past inevitably became prelude given his first stint as attorney general under George H.W. Bush. Back then, DOJ resisted efforts to get to the bottom of U.S. government-backed financing of Iraq in the run-up to Saddam Hussein’s invasion of Kuwait.
. . . .
Think of Barr as an updated version of Roy Cohn, an earlier Trump lawyer. Both men attended Horace Mann, the swank private school in the Riverdale section of New York City, and Columbia University. As with Cohn, things are not ending well for Barr.
. . . .
**************************
This is actually just the “tip of the ethics iceberg” at the DOJ. Unethical behavior was a staple of the DOJ’s various defenses of the Trump/Miller/Sessions/Barr White Nationalist agenda.
How about things like:
There is no child separation policy;
The “Muslim ban” isn’t a Muslim ban even though Trump said that was exactly what it was;
DHS is taking proper COVID-19 precautions in detention centers;
We can’t find children separated from their families under our child separation policy that we previously said didn’t exist;
The proposed census changes were necessary to protect the civil rights of minorities;
The need to prevent refugees from legally seeking asylum at our borders is a “national emergency” requiring Supreme intervention.
That just a small sampling of the “disingenuous” arguments that were a regular part of defending basically indefensible (and often clearly illegal) positions and policies in immigration cases presented by OIL and the SG’s Office during the Trump regime.
As a number of us have observed, the DOJ needed an immediate and thorough “housecleaning” which there is no sign of Garland being willing to undertake. Most DOJ attorneys are in the “excepted service” or “management officials” meaning that they largely are exempted from civil service protections and basically serve at the AG’s pleasure.
Just this week, we discovered that Garland had “honored” all of the Barr/Miller “holdover” appointments of Immigration Judges. There was absolutely no requirement that he do so, and every single reason why he should have withdrawn and cancelled these inappropriate, if not outright illegal, “holdover appointments” of judges who clearly and beyond any doubt were not the “best and brightest” selections for these important, life-determining Federal judgeships!
Who needs Mitch McConnell to gum up the works when you have Judge Garland to shoot himself and his Administration in the foot 17 times over while their (perhaps soon to be former) supporters look on in outrage and horror at yet another “unforced error” by the Biden Administration on immigration?
Honestly, doesn’t any Dem know how to play “hardball?” Maybe they need to take a seminar from the GOP!
“Can’t anyone here play this game?” Casey Stengel might understand Judge Garland’s strategy. The rest of us not so much. PHOTO: Rudi Reit Creative Commons
As all of us who served in the Federal Government know, you don’t have a Federal job until you take the oath of office and enter on duty. Until then, appointments can, and have in the past been, withdrawn and/or cancelled.
Given the nearly universal condemnation of the Trump Administration’s Immigration Judge and BIA selection criteria — from conservative commentators like Nolan Rappaport (The Hill), as well as liberals and progressives — a moratorium on further judicial appointments generated by the Trump Administration as many recommended should have been a “no brainer” for Garland.
At a minimum, these jobs should have been re-competed under new merit-based criteria that required immigration expertise and fairly credited experience gained through actually representing individuals in Immigration Court or teaching or supervising others doing so. Another requirement should be legitimate recruitment efforts within communities of minority attorneys and the immigration, human rights, and constitutional due process litigation bars.
Additionally, to state the blatantly obvious, the overt racism, misogyny, and improper and unethical enforcement weaponization of the Immigration Judiciary during the Trump regime discouraged many well-qualified progressive candidates from applying! Indeed, a number who were already in Immigration Judge positions, like some esteemed members of our Round Table, felt compelled to resign their judicial positions because of unethical or illegal interference by the Trump DOJ and their EOIR toadies with their quasi-judicial independence and their sworn obligation to uphold the Constitution.
Therefore, the 17 holdover Barr/Miller IJ appointments are necessarily tainted! Far beyond not making further appointments from Barr/Miller lists, a competent Dem AG would institute a review of all Barr IJ appointments still within the two-year probation period and apply merit-based retention criteria — with avenues for comment from the private immigration bar — to decisions as to whether these “probationary judges” should remain on the bench. Based on the anecdotal comments I have received at Courtside from across the country, a number of the Barr-appointed judges should not be on the bench under any circumstances.
This is not about the imaginary “job rights” of Barr/Miller selectees and appointees. No, it’s about the due process rights of migrants in Immigration Court — rights to a fair hearing before a qualified, impartial judge that are being violated on a wide-scale, daily basis in EOIR “courts” (a/k/a “Garland’s Star Chambers”) throughout the nation! It’s also about the right of those representing individuals in Immigration Court, many pro bono or “low-bono,” to respectful, professional treatment by well-qualified Immigration Judges.
Right now, attorneys are sometimes forced to appear before “judges” who know far less about asylum and immigration laws than they do. Many believe that they actually have to “train” these new judges in the law, only to have them go on and deny their meritorious cases on specious grounds.
How would Judge Garland and his “ivory tower lieutenants” like to “practice law” under these conditions! To be honest, “retail level experience” representing humans (not government agencies) in Immigration Count should be a minimum requirement for all Federal Judges up to the Supremes, not just for Immigration Judges! The caviler attitudes and fundamental misunderstandings that Federal Judges at all levels of our broken justice system too often exhibit toward the lives and rights of asylum seekers and migrants are both appalling and unacceptable in a functioning democracy.
This system is broken, and despite having the blueprints for reform in his hands, and hundreds of NDPA experts he could tap to help, Garland hasn’t done squat to fix it!
All and all, Judge Garland is off to a disappointing, actually horrible, start at Justice. And, the idea that he can fix racial justice, equal justice, voting rights, and civil rights while running “Star Chambers” at EOIR is total non-starter. Not going to happen!
“Justice” Star Chamber Style
Those of us who actually recognize what justice is, and who know there will be neither equal justice nor racial justice unless and until there is justice for asylum seekers and immigrants in the Immigration Courts, have an obligation to keep up the criticism until these problems are solved. It’s not rocket science. 🚀 But, it does require a far different approach, much different personnel choices, and bolder, more courageous actions than we have seen to date from the Biden Administration!
U.S. Supreme Court justices on Monday appeared reluctant to let people who have been allowed to stay in the United States on humanitarian grounds apply to become permanent residents if they entered the country illegally.
The justices heard arguments in an appeal by a married couple from El Salvador who were granted so-called Temporary Protected Status of a lower court ruling that barred their applications for permanent residency, also known as a green card, because of their unlawful entry.
The case could affect thousands of immigrants, many of whom have lived in the United States for years. President Joe Biden’s administration opposes the immigrants in the case. The dispute puts Biden, who has sought to reverse many of his Republican predecessor Donald Trump’s hardline immigration policies, at odds with immigration advocacy groups and some of his fellow Democrats. read more
A federal law called the Immigration and Nationality Act generally requires that people seeking to become permanent residents have been “inspected and admitted” into the United States. At issue in the case is whether a grant of Temporary Protected Status, which gives the recipient “lawful status,” satisfies those requirements.
. . . .
Liberal Justice Sonia Sotomayor told Justice Department lawyer Michael Huston, “If you’re asking us to find the better reading of the statute, we should go by its terms: Those people have been admitted.”
. . . .
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Read the full article at the link.
Garland helps Biden deliver “tough noogies, go pound sand, your lives don’t matter” message to immigrants like Jose and Sonia and their supporters who might have had the illusion that better times were on the horizon with Biden’s election! Progressives find that when push comes to shove, Biden & Garland can be just as cruel, dumb, and counterproductive as Trump & Miller!
Any hope that advocates might have had of help, sympathy, or understanding for their green-card-qualified clients with decades of residence and citizen family members goes down the tubes early in Dem Administration. Biden-Harris humane rhetoric and promises prove just another illusion for progressives in Administration’s first High Court test!
But for Justice Sotomayor, the thinness of the Justices’ understanding of both immigration law and the human issues involved was alarming, yet basically predictable. What do a bunch of highly privileged, above the fray, judges who have never personally dealt with the stupidity, arbitrariness, and trauma of our immigration system, and never represented clients in Immigration Court, care about shutting hard working American residents, people of color, like Jose and Sonia, out of our system and disenfranchising them for no particular reason. The worst, most racially discriminatory “interpretations” are “available” to those judges, so why not use them? For them, it’s a wooden academic exercise played out with human lives that don’t matter because they are “the other.” Except for Sotomayor, going for the best, most practical, humane interpretation evidently never crossed the minds of these Justices.
As Justice Sotomayor correctly said: “If you’re asking us to find the better reading of the statute, we should go by its terms: Those people have been admitted.”
It’s not rocket science. Just common sense, humanity, and a clear understanding of the effect of legal interpretations on human lives. At the Supreme Court level, most decisions represent a “choice” rather than a “mandate.” That’s where having Justices who neither care to understand nor have to live with the consequences of their decisions really hurts people of color, immigrants, asylum seekers, and others not in the “power structure!” Better judges for a better America!
Meanwhile, advocates and progressives should never underestimate the ability of Dem Administrations to screw up immigration policy.
WASHINGTON – Jose Sanchez and Sonia Gonzalez have lived in the United States legally for two decades under a program that lets immigrants from nations enduring natural disasters and armed conflict temporarily avoid returning to their native countries.
But when the New Jersey couple applied for green cards – which would let them remain permanently – they were denied because they initially entered the country illegally.
The Salvadorans sued in 2015 and the Supreme Court will hear their appeal Monday in a case that has drawn little attention in Washington even as it has raised significant questions about the Biden administration’s approach to immigration – not to mention the status of hundreds of thousands of immigrants living in a state of limbo.
. . . .
“Look, this is a no brainer,” said Paul Wickham Schmidt, a Georgetown University law professor and former immigration judge. “Why waste time on it? The administration has indicated they’d like to regularize many [TPS beneficiaries] and…instead they’re defending a gimmick cooked up by Stephen Miller,” Trump’s onetime policy adviser.
. . . .
“Integrate them into our society rather than leaving them in permanent limbo – in theory, that’s what the Biden administration says it wants to do,” said Schmidt, the former immigration judge. “Only here’s their first chance to make it happen and they don’t connect the dots.”
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Read John’s complete article at the above link.
Yeah, I know this brain-dead position originated in the Obama Administration. I’d never accuse the Obama Administration of overall having a wise, informed, or consistent approach to immigration. But, the “precedents” at issue here were issued under Trump. SeeMatter of H-G-G-, 27 I. & N. Dec. 617 (AAO 2019); Matter of Padilla Rodriguez, 28 I. & N. Dec. 164 (BIA 2020).
Any time you see folks like Ira Mehlman @ FAIR or Christopher Hajec @ Immigration Reform Law Institute endorsing a position you can bet that there is a link to the cruel, White Nationalist policies of Stephen Miller and his cronies in the Trump Administration. If you had any doubt that the position being taken by the Garland DOJ was stupid policy, Mehlman’s and Hajec’s endorsements, and the organizations they represent, should resolve them.
Ignoring your potential friends and supporters; embracing the “racist right.” Interesting way to get started on what was promised to be a “smarter, kinder, more humane” approach to immigration policy. Can anyone really tell me what Judge Garland is doing over @ DOJ? The once highly regarded jurist who testified before Congress and was only a Mitch McConnell away from a seat on the Supremes seems to have all but disappeared into a bureaucratic fog of incompetence, bad lawyering, and missed opportunities @ the DOJ!
Look, after four years of senselessly, wastefully, and disgracefully trying to dump on long-time, contributing members of our society in TPS, like Jose & Sonia, the Trump Administration (thankfully for America) never removed any of them. The idea that the Biden Administration will do so is absurd.
So these folks are here for the duration. With Congress in deadlock, the most practical, legal, readily available way of getting tens of thousands of hard-working residents like Jose and Sonia fully integrated into our society and on their way to citizenship is simply by following the clear statutory language as other Circuit Courts have done. These are individuals who actually have met all the criteria of our legal immigration system! Most now have families with U.S. citizens. Why on earth would we want to keep those we should welcome in limbo? It’s cruel, counterproductive, and stupid!
For a much more scholarly and nuanced approach to DOJ’s wrong-headed handling of this case, check out this article in Just Security by my friend, renowned immigration expert, former senior executive in the Clinton and Obama Administrations (we actually met while working on the Refugee Act of 1980 in the Carter Administration — back when we were young), emeritus Professor David A. Martin:
I also note with pleasure that counsel of record for Jose and Sonia is Jamie W. Aparisi, who appeared before many times at the Arlington Immigration Court.
All this being said, the Supremes still mightpreserve this couple’s future and save the Garland DOJ from themselves. In past cases, faced with clear statutory language, the Supremes have required the Government to do something radically sensible:follow the law!See, e.g., Pereira v. Sessions, 138 S.Ct. 2105 (2018) (notice to appear).
So, who knows? Justice (not to be confused with the Department of “Justice”) as well as common sense and human decency could again prevail!
BIA Asylum Panel In Action Albrecht Dürer, Public domain, via Wikimedia CommonsWoman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Filipe De La Hoz Investigative Journalist — Immigration PHOTO: Twitter
Filipe De La Hoz in The Baffler:
This has been a bizarre conversation on a number of levels, not least because many interlocutors proceed from the assumption that permitting humanitarian migration is even a choice that the president gets to make. It is not: U.S. law lays out that any “alien . . . who arrives in the United States . . . irrespective of such alien’s status, may apply for asylum.” The statute enumerates certain exceptions, such as adults applying more than one year after entry and the existence of specific “safe third country” agreements (which formed another front in Trump’s efforts to gut asylum).
There are no exceptions, however, pertaining to considerations of the domestic political climate, or whether accommodating asylum seekers is deemed just too hard or, god forbid, conducive to others subsequently seeking help. Internationally, the principle of “non-refoulement” (literally non-return) holds that a state cannot “expel or return a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened,” as obligated by the United Nations’ 1967 protocol on refugees, of which the United States is a signatory. While the refugee definition itself is woefully outdated, the requirement to verify whether people fit the rubric before sending them away is absolute. These aren’t open questions, no matter how assertively they’re raised by political strategy hucksters and TV news hosts.
Read the complete article, which makes many other valid points and corrects the daily errors and myths about asylum spewed forth by politicos and the “mainstream” media at the link.
Filipe gets it! But, Judge Garland apparently doesn’t! What’s wrong with this picture? Pretty much everything!
Is this how the DC Circuit Court of Appeals functioned when Judge Garland was on the bench. Is this what “due process” means in America? If not, why is Garland looking the other way as injustice rolls off his “judicial assembly line” in Falls Church?
For Judge Garland to be credible on any racial justice issue, and for EOIR to provide due process, we need radical, not incremental, change! It’s interesting that Biden is getting well-deserved kudos for nominating a very diverse progressive slate of Article III judicial nominees.
Yet, to date, EOIR, with more judges than Biden could appoint in four years, remains staffed and operating as if Jeff Sessions and Stephen Miller were still in charge. And, non-diverse, anti-progressive would be an understatement for today’s Immigration “Courts.” For heaven’s sake, we still have an anti-due-process BIA churning out nativist precedents!
There is nary a “win” for an individual in the last four years of BIA/AG precedents. The BIA and the AG inevitably reject reasonable constructions of statutes presented by respondents in favor of inferior — even nonsensical — ones presented by DHS.
Sometimes, the BIA runs over clear statutory language, circuit precedents, regulatory requirements, or their own past precedents in the “race to remove.” Yet, in the “real” Federal Courts, even with a much more aggressively conservative composition, and their own often dismissive approach to immigrants’ rights, individuals prevail in published decisions almost every day! How outrageous is that!
I’ll believe that Judge Garland is serious about racial justice in America on the day that he 1) vacates every Trump-era AG precedent, and 2) removes the entire BIA and replaces them with a diverse group of progressive judges with human rights expertise and an unswerving commitment to due process. Appoint the “best and the brightest” as President Biden says!
Until then, I remain a skeptic and a strong critic of the just plain dumb, biased, and ill-informed approach to EOIR that has plagued past Dem Administrations.
It won’t be long until, predictably, the fallout from the so-called “border crisis” — unnecessarily hyped by the press and the GOP, but also stoked by the Biden Administration’s lack of expertise, preparation, and “Amateur Night @ the Bijou PR” — hits EOIR.
It’s not rocket science! But, it does require a much much much more courageous and informed approach, along with common sense and some human decency. And, the “next gen” folks who could make it happen, are still “on the outside looking in.”
Meanwhile, the idiocy continues from the Garland SG’s Office. Handed a golden opportunity to abandon a totally boneheaded position on adjustment of status for TPS holders who qualify to immigrate legally, the Garland DOJ continues to press an irrational and illegal Trump interpretation; one that not only defies the plain language of the statute, but reaches a beyond stupid policy result that keeps hard-working folks who meet the qualifications for green card status in perpetual limbo — for no legal or rational reason whatsoever!
Sure, the tone-deaf Supremes’ GOP majority might buy it, since it furthers a culture of bias and de-humanization. But, that’s no excuse for what was supposed to be a smarter, more ethical, more humane Administration.
The case is Sanchez v. Mayorkas, and the lack of insight, common sense, and humanity with which Judge Garland has approached the most important topics in current American law — immigration/human rights/racial justice/social justice to date — remains appalling! There will be no racial justice in America until our leaders “connect the dots” between racist immigration policies, a racist-enabling Immigration Court, and degradation of people of color in all areas of the law!
Judge Garland could cut through all the BS by putting the right folks in charge of EOIR and turning them loose. We needa lot less talk and a lot more action!
Many of us out here have long supported social and racial justice, through good times and bad. But, we’re likely to remain unconvinced about the good faith and competence of the Biden Administration until we see radical due process and racial justice reforms at EOIR and the DOJ.
There are many folks who could solve America’s immigration problems in a humane, progressive, and efficient manner that advances and enhances due process. But, to date, Judge Garland short-sightedly refuses to put them in the game or even to publicly acknowledge the debilitating problems in his wholly-owned and incompetently operated courts! And, every minute of delay costs lives and credibility.
Here’s a very recent letter from Senator Gillibrand and other Senators requesting that Judge Garland turn his attention to the EOIR disaster/travesty.
It’s a terrific letter. But, there is a major problem! All of this was well known long before the election! A number of us made the same points to the Biden Transition Team! Among other things, we emphasized the critical importance off “seizing the moment and hitting the ground running with a complete new approach at EOIR led by a team of available experts.”
The election was over in early November. Yet, here we are with the “same old, same old” failed anti-due process EOIR daily inflicting unnecessary pain, suffering, and abuse on migrants and their lawyers. Most of the same old DOJ unethical, legally questionable, defenses of the indefensible are still the order of the day. Some of the worst and most incompetent jurisprudence in modern American legal history, rendered in Garland’s name, is still being “outed” every week. There is no known plan for correction or even simple statement of awareness from Judge G.
Totally unacceptable! And the lack of preparation and basic competence is reflected in the problems the Administration has had at the border. A functional EOIR could and should have been part of reestablishing the rule of law at the border.
Instead, Judge Garland is making himself part of the latest chapter in America’s disgraceful and unnecessary failure to establish an asylum system that complies with due process and domestic and international laws. One that fulfills international treaty obligations, implements the generous protection objectives of the Refugee Act of 1980, rejects institutionalized racism, reflects the reality of forced migration, incorporates basic human values, and furthers the national interest.
It’s not rocket science; but it requires historical knowledge, recognition of the realities of human migration, legal competence, moral courage, and radical action that Judge Garland has yet to hint is within his capabilities. And, that’s bad news for American justice and humanity!
Inexcusable! But neither the issues of human migration nor the efforts of the NDPA to make the historically false, yet clear, promise of “due process and equal justice under law” a reality will go away, no matter how much Judge Garland and other “head in the sanders” in the Administration might want to believe and act otherwise!
Oh, yeah, don’t forget the heavy dose of overt misogyny that drove the Trump/Miller/Sessions/Barr/BIA “immigration jurisprudence” over the past four years. Yet, no repudiation from Judge Garland!
As I previously said, on “day one” Judge Garland would either repudiate or “own” the despicable treatment inflicted on female refugees and other migrants of color by the Trump kakistocracy. Until we see radical remedial action, Judge Garland now “owns” all the ugliness of the last four years. Our job becomes to let him escape neither responsibility nor the judgement of history for his failure of humanity and good judgement!
Currently before the Supreme Court is a little-noticed immigration case with profound significance. Sanchez v. Mayorkas offers the Biden administration an opportunity to make major progress, without waiting for legislative action, on one of its central humanitarian goals – providing durable status to long-resident noncitizens.
A straightforward change in the government’s policy and its litigation stance could help remove a barrier blocking critical relief to several tens of thousands of noncitizens who have resided in the United States with official government permission under Temporary Protected Status (TPS). Because of a longstanding but misguided agency reading of the Immigration and Nationality Act (INA), these noncitizens are stuck in limbo and practically unable to get the permanent resident status for which they are independently eligible based on family or employment relationships. Those most affected are TPS recipients married to U.S. citizens. The case turns on a highly technical question of statutory interpretation over which six courts of appeals have so far split evenly, but the human stakes are substantial, and a change of position by the administration would have significant impact.
The plaintiff TPS holders in Sanchez may well win the case based on the plain language of the relevant statutes, as ably argued in their brief and by supporting amici. But until now, the government has argued, to the contrary, that the language of the statute compels the agency’s current restrictive interpretation. This essay contends that the administration could provide crucial support for the TPS holders under a different legal framework that, for understandable reasons, neither side has given much emphasis.
The alternative approach is for the administration to acknowledge – in light of the statutory text, the deep and abiding circuit split, and a surprising November ruling by the Justice Department’s own Board of Immigration Appeals (BIA) – that the statutory language is ambiguous. On that foundation, the government has the discretion to adopt a new (and better) interpretation that would permit eligible TPS recipients to make use of adjustment of status to obtain a green card.
In 2019, the Trump administration entrenched the restrictive interpretation through an obscure process rather clearly invoked to complicate a later policy change. The Biden administration should nonetheless undertake immediate reconsideration of the government’s position and seek to defer the pending Supreme Court briefing schedule to allow that agency process to proceed. A more refined position by the new administration would promote family unity and avoid compelling spouses of U.S. citizens to return to the very country from which they have escaped in order to seek the immigrant visa for which they already qualify.
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Read the rest of David’s article, explaining his suggestions, at the link.
This issue came up before me at the Arlington Immigration Court. After holding “oral argument,” I simply followed the statutory language and granted adjustment of status to the TPS holder.
In that case, following the literal statutory language produced the most reasonable policy result. As I pointed out to DHS counsel, the mis-interpretation they were pushing would not only violate the statutory language, but also result in a long-time TPS resident with work authorization who was paying taxes and supporting an American family being deprived of the legal immigration status to which he was entitled.
The result desired by DHS would have been highly nonsensical. Why make individuals who fit the legal immigration system established by Congress, and who actually have been contributing to our nation and our economy for many years, remain in limbo? In many cases, lack of a green card limits the both the earning and career potential of such individuals, plus adding unnecessary stress and uncertainty to the situation of their U.S. citizen family members.
The DHS reserved an appeal. I don’t believe it was ever pursued, however. And, of course, as a mere Immigration Judge (even before the position was “dumbed down” by the Trump DOJ) my decision only affected that particular case.It wasn’t a precedent.
But, it does illustrate my oft-made point that having “practical scholars” in immigration and human rights as Immigration Judges, BIA Judges, Article III Judges, and policy officials would be a huge positive change, making our immigration system fairer, more efficient, and more responsive to our national needs, even without major legislative changes. Also, these adjustments could be handled at USCIS, promoting uniformity while eliminating unnecessary litigation from the bloated Immigration Court docket.
Certainly, both the Solicitor General’s Office and the Office of Immigration Litigation (“OIL”) urgently need new leadership with practical experience in immigration and human rights policies and litigation. It’s definitely out here in the private/NGO/academic sectors. The only question is whether Judge Garland and his team will go out and get the right talent in the key jobs.
Talk about taking a potential win-win-win-win and converting it to a lose-lose-lose-lose! But, the latter was a “specialty” of the Trump regime and their DOJ.
As David astutely points out, cases such as Sanchez v Mayorkas might appear “hyper-technical” to some; but, to those who truly understand our current broken immigraton system, they have huge implications. We need the expertise of the “practical scholars” of the NDPA throughout our governing structure — starting, but not ending, with a complete “housecleaning” at the disgracefully dysfunctional EOIR.
The only question is whether Judge Garland, Secretary Mayorkas, and the others in charge of the Government’s immigraton bureaucracy will (finally, at long last) bring in the right talent to solve their problems!
Elections truly do have consequences. The Biden administration in its early days has removed some high profile immigration cases from the Supreme Court docket, moving in a different direction than the Trump administration. NBC News reports (see also CNN and Bloomberg) that, yesterday, the Justice Department asked the Court to dismiss three lawsuits over the lawfulness of the Trump administration’s efforts to de-fund “sanctuary’ cities.
In brief letters to the Supreme Court, the Justice Department said the cases should be dismissed, indicating that the government will no longer seek to enforce that policy.
Lower courts were divided on the legality of the Trump de-funding policy. The Supreme Court had been deferring action on the appeals while the new administration decided how to handle the cases. The cases are Wilkinson v. San Francisco, 20-666; New York v. Department of Justice, 20-795; and City of New York v. Department of Justice, 20-796.
KJ
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Thanks for the nice summary and links, Kevin!
The Trump regime waged a four-year unsuccessful war against American local governments who were seeking to protect their ethnic communities from ICE abuses and to encourage community cooperation with police in addressing violent crime in those communities. How did they go about it: By threatening to cut off certain Federal funding for local law enforcement.
If it sounds stupid and wasteful, that’s because it was. It also helped make ICE probably “the most despised law enforcement agency in America.” Again, not an effective strategy for real cooperative law enforcement.
But, despite all his bluster and false claims, Trump never, ever was about “law enforcement.” That was clear even before he sent his “magamorons” out to attack our Capitol. No, it always was about stoking fear, hate, and throwing “red meat” to his base for political purposes.
