WASHPOST FRONT PAGER: THE END OF “CATCH & RELEASE?”

https://www.washingtonpost.com/national/he-crossed-the-border-illegally-but-wasnt-deported–because-he-brought-his-child/2017/06/25/bdef43c8-511b-11e7-b064-828ba60fbb98_story.html?utm_term=.c0a98403a3bb

Jessica Contrera reports from McMillan, TX for the Washington Post:

“Along the border, the impacts of Trump’s immigration policies are visible everywhere: At the river, the number of people crossing into the United States has plummeted. At the detention facilities, fewer people are being detained. And at the McAllen bus station — a place where ICE has released more than 30,000 families since 2014, sometimes hundreds a day — the number of people coming in each day is sometimes down to just an overwhelmed man and his only child, with tickets that will take them 1,700 miles and 46 hours north to live with a relative in Cleveland.

“Look at the dresses,” Sandra says as the bus passes a clothing store.

Miguel looks instead at her. She must be tired, he thinks. Or at least hungry. He reaches for a bag carrying the only food they have for the trip. It had been given to them not by ICE, but by a stranger at the bus station. She had run up to them just before they boarded and passed them the bag, which was full of snacks and sandwiches. Miguel hands a sandwich to Sandra. She takes a bite. He does not know who the stranger was, only that she seemed to be in a hurry, and now there are seven sandwiches left and 46 hours to go.

In the months since Trump took office, the sign-in sheet had fewer names with each passing week. For a time, the respite center staff wondered if the families would stop being released completely. “Under my administration,” Trump had said during his campaign, “anyone who illegally crosses the border will be detained until they are removed out of our country.” He railed against the very policy that had allowed the families to come here: a policy critics have long called “catch and release.” It was a routine developed for ICE and Border Patrol to handle the overwhelming number of parents and children, mostly from Central America, crossing the border to ask for asylum. Each released family would be allowed to go live with their relatives in the United States, as long as they appeared at the check-ins and court dates that would eventually determine whether they would be deported.

On his sixth day in office, Trump issued an executive order declaring the “termination” of catch and release. It has not been as simple as that declaration, though; there are laws and judicial orders in place that limit how long ICE can detain children, and in most cases, when a child is released, at least one of their parents is, too.

For the time being, catch and release was still happening, and Gabriela was still showing up at work every day, never knowing if it would be the one when the surge of people returns, or another when so few people cross the border, no families show up at the respite center at all.”

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Read the complete article at the above link.

We use “catch and release,” a sport fishing term to refer to the lives and futures of real human beings like this. And by all accounts, including my own observations, immigration detention is something that can be highly coercive, intentionally demoralizing, and expensive.

PWS

06-26-17

Supremes Drop Back, Boot It Deep, J. Gorsuch Calls For Fair Catch, Play To Resume In Fall Quarter! — I.O.W. They “Punted” The 3 Remaining Immigration Cases On The Fall 2016 Docket!

Actually, only two of them”went to Gorsuch,” that is, were set for re-arguement next Fall, presumably because the Justices were tied 4-4. The other case was kicked back to the 9th Circuit to reconsider in light of Ziglar v. Abbasi, the Court’s recent decision on “Bivens actions.” Here’s a link to my prior Ziglar blog:

http://immigrationcourtside.com/2017/06/19/relax-cabinet-members-supremes-say-no-monetary-damages-for-unconstitutional-acts-ziglar-v-abbasi/

You can read all about it over on ImmigrationProf Blog in a short article by Dean Kevin Johnson at this link:

http://lawprofessors.typepad.com/immigration/2017/06/supreme-court-ends-2016-term-with-three-immigration-decisions.html

 

PWS

06-26-17

FORMER DEPUTY AG SALLY YATES SLAMS SESSIONS’S “GONZO APOCALYPTO” PLAN TO TURN AMERICA INTO “INCARCERATION NATION!”

http://www.huffingtonpost.com/entry/sally-yates-jeff-sessions_us_594eb52ee4b02734df2ac45b

According to this article from HuffPost:

“Sessions has long been a staunch conservative on crime. He once supported legislation in his home state of Alabama that would have required the death penalty for a second drug trafficking conviction, including for marijuana, which is now legalized in a number of states. Before the 2016 election, there was bipartisan agreement from groups, including the American Civil Liberties Union and Koch Industries, and on Capitol Hill about the need to pursue criminal justice reform. Senate Majority Leader Mitch McConnell (R-Ky.) declined to advance it.

Yates defended the work of Obama’s Justice Department, saying by allowing prosecutors to use their discretion on sentencing for low-level offenses, officials could dedicate resources to prosecuting the most dangerous individuals.

“Under Smart on Crime, the Justice Department took a more targeted approach, reserving the harshest of those penalties for the most violent and significant drug traffickers and encouraging prosecutors to use their discretion not to seek mandatory minimum sentences for lower-level, nonviolent offenders,” she wrote. “While there is always room to debate the most effective approach to criminal justice, that debate should be based on facts, not fear.”

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Fear and loathing are, of course, key ingredients of the “Gonzo Apocalypto Program.” Let’s see, in Tudor England they publicly hanged, mostly poor, folks for minor crimes; traitors were drawn and quartered; and the upper classes were beheaded for political, offenses, real or imagined. So, given the obvious deterrent effect, crime should have largely disappeared from the Anglo-Saxon heritage. No real historical record that even the most grisly and gruesome punishments had any real deterrent effect, not to mention that justice was often more or less arbitrary and imposed by an entrenched upper class. But, learning from history, or even knowing much about it, is hardly a Trump Administration specialty.

And, the opposite of “Smart” on Crime would be . . . ?

PWS

06-26-17

Sessions Says DOJ Will Help Defend States (Like Texas) Seeking To Punish “Sanctuary Cities” — House GOP Pushes Bill Targeting Sanctuary Jurisdictions!

https://www.washingtonpost.com/local/trump-administration-backs-texas-in-lawsuit-over-harsh-sanctuary-city-law/2017/06/23/327ba290-581f-11e7-ba90-f5875b7d1876_story.html?utm_term=.4c47afa58d76

Maria Sacchetti reports in the Washington Post:

“Attorney General Jeff Sessions said Friday that the Trump administration “fully supports” Texas’s harsh new ban on sanctuary cities, and the Department of Justice will help defend it against a federal court challenge next week.

Lawyers for the tiny border city of El Cenizo, the League of United Latin American Citizens and major cities such as Dallas and Austin say the law requiring them to detain immigrants for federal deportation agents is “patently unconstitutional” for a number of reasons. On Monday, they will urge U.S. District Court Judge Orlando Garcia in San Antonio to block the law from taking effect Sept. 1.

The state of Texas argues that the government is within its rights to bar localities from interfering with immigration enforcement. Under the law, officials could lose their jobs, police chiefs could go to jail, and governments could face fines of up to $25,500 a day if they adopt or enforce policies that prevent law enforcement officers from asking about a person’s immigration status or complying with requests to detain immigrants, a job that has been chiefly the responsibility of federal agents.

 

“President Trump has made a commitment to keep America safe and to ensure cooperation with federal immigration laws,” Sessions said in a statement. “Texas has admirably followed his lead by mandating state-wide cooperation with federal immigration laws that require the removal of illegal aliens who have committed crimes.”

Luis Roberto Vera, Jr. the national general counsel for the League of United Latin American Citizens, which is a plaintiff in the case, said the Texas law is discriminatory because it primarily targets Hispanics, one of the state’s largest groups.

El Cenizo Mayor Raul Reyes. El Cenizo is the lead plaintiff in a lawsuit that will seek to temporarily halt Texas’ sanctuary cities ban before it takes effect Sept. 1. (Matthew Busch/Matthew Busch For The Washington Post)
“It’s a continuation of Donald Trump’s war on Mexicanos,” Vera said. “That’s the sad part about this.”

The faceoff comes amid rising tensions nationwide over the Trump administration’s crackdown on immigration and its relentless march forward despite a string of losses in federal courts.

On Friday, congressional aides said House Republicans are advancing a bill that would withhold some federal grant money from so-called sanctuary cities; give greater legal weight to immigration detainers, which are requests from Immigration and Customs Enforcement to local jails to hold immigrants who are being targeted for deportation; and shield local governments from lawsuits related to detainers. A second bill would increase penalties against deported immigrants who return illegally.”

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Yup, full employment for lawyers, on all sides.

Bad time to be an immigrant, refugee, or minority in America. Great time to be a lawyer!

PWS

06-24-17

A HUMAN LIFE IS A TERRIBLE THING TO WASTE! — BUT, THAT’S EXACTLY WHAT OUR CURRENT PROGRAM OF DEPORTATIONS TO GUATEMALA IS DOING!

https://www.nytimes.com/2017/06/22/opinion/guatemala-immigrants.html?em_pos=large&emc=edit_ty_20170622&nl=opinion-today&nlid=79213886&ref=headline&te=1

Anita Isaacs writes in this NY Times op-ed:

“On a recent Wednesday, 75 Guatemalans disembarked from one of three charter flights, all full of deportees from the United States, scheduled that day. The group was led into a hangar, where authorities gave them a perfunctory welcome: a hello, a snack and bus fare to wherever they were headed.

The Guatemalan government’s relationship to the deportees ended there. Considering them a burden, even an embarrassment, the Guatemalan state and society are unable and unwilling to assist the thousands of migrants being sent back home.

Reintegrating them is no doubt a challenge. But so is doing nothing. And Guatemala and the United States have far more to gain by harnessing the economic, social and political capital these migrants bring back with them.

One reason Guatemala doesn’t do much with deportees is the widespread belief that they won’t stay for long.

On a recent visit to the country, I heard businessmen, public officials and community activists insist that Donald Trump and his wall would not intimidate aspiring migrants. But migrants aren’t wasting time, either. As a community leader told me, “Everyone is saying that they better rush now before Mr. Trump finishes his wall.”

In fact, many Guatemalans want the migrants to go back. Their return spells an end to remittances that constitute about 10 percent of the country’s gross domestic product. And returning migrants are flooding an already depressed job sector, where three-quarters of the labor force works off the books.

Not surprisingly, returning migrants aren’t particularly liked. Guatemalans figure they were sent home for breaking the law; those with tattoos are ostracized, assumed to belong to a violent street gang. Employers won’t hire them, and passers-by glance away.

Of course, such treatment becomes a self-fulfilling prophecy. Denying migrants the assistance to reintegrate economically and socially will just make the country’s problems worse.

Marginalized individuals often join street gangs in a search to belong, and drug gangs and human traffickers recruit returning migrants. They know how to get across the border; many have lived in communities where gangs and organized crime fester; and they are the Guatemalans most familiar with the United States.

While it’s true that some migrants will head back north, many have no interest. One man I know, whose remittances were used to set up a T-shirt factory that employs his 10 children in his village, is heading home for good. Older returnees, especially those who have squirreled away enough money to survive, no longer feel pulled toward the United States.

Categorizing all deportees as criminals is equally misleading. Whereas a minority are felons, many more committed misdemeanors, and the majority are guilty only of crossing the border illegally and working without a permit.

Indeed, many migrants represent an untapped resource. Most left their countries as unskilled peasants, yet through resourcefulness and hard work in the United States they acquired a diverse set of professional skills and rose through the ranks.

During my visit, I encountered bricklayers and carpenters who undertook sophisticated home renovation projects, professional landscapers who worked on golf courses, a leather craftsman who oversaw a briefcase-making business and a young sushi chef who spoke fluent English and even rudimentary Japanese. They are eager to put their skills to work in Guatemala, either by opening their own businesses or by finding a private-sector partner.

For starters, the government should provide credit and, for those in the construction and tourism industries, ease cumbersome certification requirements so that they can ply their trade immediately. It could also develop a returnee-specific “linked in” program, where returning migrants would advertise their skills, connected to an effort to match them with businesses committed to diversifying and modernizing the Guatemalan economy.

Inasmuch as the migrants could help stabilize the Central American region, the United States could also benefit from the skills of deportees. The Alliance for Prosperity, which the American government has provided funds for, aims to curb migration by alleviating poverty, lawlessness and violence. Among other things, it fosters international, public and private investments in education, health care and vocational training — goals that skilled returning migrants can help achieve.”

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Our short-sighted policies, unwillingness to invest wisely in the futures of foreign countries (beyond military and law enforcement aid), and apparent inability to look for different approaches (beyond just arrest, detain, and deport, arrest, detain, and deport) virtually guarantees a continuation of the cycle of illegal entries, reentries, and expensive, resource intensive immigration enforcement. Walls, fences, more detention centers, more DHS agents, and, yes, even more U.S. Immigration Judges are not going to solve this problem.

PWS

06-22-17

THE NEW YORKER: Bureaucratic Delays Impede Due Process In U.S. Immigration Court!

http://www.newyorker.com/news/news-desk/what-will-trump-do-with-half-a-million-backlogged-immigration-cases

Jonathan Blitzer writes in The New Yorker:

“In April, Attorney General Jeff Sessions travelled to Nogales, Arizona, to make an announcement. “This is the Trump era,” he said. “The lawlessness, the abdication of the duty to enforce our immigrations laws, and the catch-and-release practices of old are over.” While his tone was harsh, and many of the proposals he outlined were hostile to immigrants, he detailed one idea that even some of his critics support: the hiring of more immigration judges.

U.S. immigration courts are facing a backlog of over half a million cases—and each one, on average, takes almost two years to close. These delays mean that everyone from asylum seekers to green-card holders faces extended stays in detention while awaiting rulings. Speaking about the problem, one immigration judge recently told the Times, “The courts as a whole lose credibility.”

Much of the backlog can be traced back to the Obama Administration, when spending on immigration enforcement went up, while Congress dramatically limited funds for hiring more judges. The number of pending cases grew from a hundred and sixty-seven thousand, in 2008, to five hundred and sixty thousand, in 2017, according to the Transactional Records Access Clearinghouse. The broader trend, though, goes back farther. Since the creation of the Department of Homeland Security, in 2002, the increase in resources allocated for border security and immigration policing has always significantly outpaced funding for the courts. (Immigration courts are part of the Department of Justice.) As more and more people have been arrested, detained, and ordered deported, the courts have remained understaffed and underfunded. “We’ve always been an afterthought,” Dana Leigh Marks, the president of the National Association of Immigration Judges, told me.

Roughly three hundred judges nationwide are responsible for the entire immigration caseload, and hiring is slow—filling a vacancy typically tak

es about two years, according to the Government Accountability Office. In Nogales, Sessions said that he would try to streamline the hiring process. But until that happens the Administration has been relocating judges to areas where they’re deemed most necessary. “We have already surged twenty-five immigration judges to detention centers along the border,” Sessions said, as if talking about military troop levels.”

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To state the obvious, a court should be run as an independent court system, not a bureaucratic agency within a highly politicized Executive Department like the DOJ. (If you ever wondered whether the DOJ was politicized, recent events should make it clear that it is.)

And, Jeff, these are judges, not troops; and the individuals are not an “invading army,” just mostly ordinary folks seeking refuge, due process, and fair treatment under our laws and the Constitution. Remember, it’s not an immigration crisis; it’s a crisis involving the steady degradation of due process within the U.S. Immigration Court system.

PWS

06-21-17

JOINING THE CLUB: Sessions “Lawyers Up!”

https://www.washingtonpost.com/world/national-security/attorney-general-sessions-retains-a-personal-attorney/2017/06/20/698d9828-55f0-11e7-ba90-f5875b7d1876_story.html?hpid=hp_rhp-top-table-main_sessionslawyer-941pm%3Ahomepage%2Fstory&utm_term=.7a3bb2306c43

Sari Horwitz reports in the Washington Post:

“Attorney General Jeff Sessions, who has been under fire in recent months for his contacts with Russian officials during the 2016 presidential race, has retained the services of Washington lawyer Charles J. Cooper, a longtime friend.

Cooper was seen sitting behind Sessions when he testified last week before the Senate Intelligence Committee about President Trump and Russia.

“I do represent the Attorney General, but, as with all clients, do not comment on confidential client matters,” Cooper wrote in an email to The Washington Post.

Cooper, a partner with his own firm, Cooper & Kirk, would not say when he was retained by Sessions or whether he is representing Sessions in the special counsel’s investigation into Trump and Russia. Sessions, who was the first senator to endorse Trump on the campaign trail, was a top adviser to Trump during his race for president.

Cooper also assisted Sessions with his January confirmation hearing before the Senate Judiciary Committee, discussing those preparations in an interview with The Post at the time.

Sarah Isgur Flores, a Justice Department spokeswoman, described Cooper as “the attorney general’s longtime friend and counsel.”

The National Law Journal first reported that Cooper is now Sessions’s personal attorney.

Cooper, who clerked for Justice William H. Rehnquist on the Supreme Court, served in the Justice Department’s civil rights division and was appointed by President Ronald Reagan as the assistant attorney general for the Office of Legal Counsel. He was also a partner at McGuireWoods and at Shaw, Pittman, Potts & Trowbridge.

Cooper was also under consideration to serve as the Justice Department’s solicitor general. He withdrew his name in February, citing his concern after watching Sessions go through the confirmation process to become attorney general.

“After witnessing the treatment that my friend Jeff Sessions, a decent and honorable man who bears only good will and good cheer to everyone he meets, had to endure at the hands of a partisan opposition that will say anything and do anything to advance their political interests, I am unwilling to subject myself, my family and my friends to such a process,” Cooper said in a statement at the time.”

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Read the complete article at the above link.

I think Cooper confuses “geniality” with “goodwill.” That Sessions is a bearer of “goodwill” would be news to most blacks, hispanics, immigrants, migrants, and LGBT individuals in the U.S. Yes, we’ve all noted that he is “genial.” But the South has been famous for producing polite, charming, genial white politicians who spent careers making sure that African Americans were denied their legal and constitutional rights, their human dignity, and their rights to fully participate in American society. Actions speak louder than words. And, since assuming the office of Attorney General, Sessions’s actions have been geared specifically at implementing a nationalist agenda inconsistent with the interests of many Americans, particularly minorities, immigrants, and the LGBT community.

As I have said numerous times over the past five months, the Trump Administration has been a “lawyer’s dream.” Prosecutors, defense counsel, judges, and legal reporters have all been very busy, and that’s not likely to change.

PWS

06-20-17

 

Virginia Mother Of 2 Deported N/W/S Governor’s Pardon!

https://www.washingtonpost.com/local/social-issues/liliana-cruz-mendez-falls-church-mother-of-two-deported-to-el-salvador/2017/06/20/23c317ea-5600-11e7-b38e-35fd8e0c288f_story.html?hpid=hp_local-news_fairfaxdeport-7pm%3Ahomepage%2Fstory&utm_term=.09aea91718af

“Federal immigration officials have deported a mother of two from Falls Church back to her native El Salvador despite ­eleventh-hour efforts by Virginia Gov. Terry McAuliffe and others to help her stay in the United States.

Liliana Cruz Mendez was deported Wednesday, according to CASA, the nonprofit group that represented her after she was detained in May at a routine check-in with U.S. Immigration and Customs Enforcement. ICE confirmed the deportation.

After she was taken into custody, McAuliffe (D) pardoned Cruz Mendez’s 2014 conviction for a minor driving offense in hopes that it would spare her from having to leave the country.

The governor said she did not pose a public-safety threat. But federal immigration officials said she would be deported, noting that she had been in the United States illegally since 2006.

Cruz Mendez’s husband, Rene Bermudez, said the family was shattered by the deportation. He sobbed as he recounted how their children, aged 10 and 4, wept when they heard Cruz Mendez was gone.

“How can they take away their mother?” he said.

Bermudez said he cannot join his wife in El Salvador because he is in the process of obtaining a green card and must stay in the United States. He said he and his wife have been together for 15 years and have always paid taxes and gone to church.

He and his son and daughter last saw Cruz Mendez through a window at the immigration detention center.

“People don’t understand because they haven’t lived it. But believe me,” he said, his voice faltering, “I wouldn’t wish it on anyone.”

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Read the entire story at the link.

Intentional cruelty and arbitrary enforcement usually come back to haunt those who smugly carry them out. Exercising power for power’s sake is abusive.

PWS

06-20-17

 

 

RELAX, Cabinet Members! — Supremes Say No Monetary Damages For Unconstitutional Acts! — Ziglar v. Abbasi

https://www.supremecourt.gov/opinions/16pdf/15-1358_6khn.pdf

The full opinion is at the above link.  Here’s the Court’s “Detailed Syllabus,” which, of course, is NOT part of the opinion:

Syllabus

ZIGLAR v. ABBASI ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

No. 15–1358. Argued January 18, 2017—Decided June 19, 2017*

In the immediate aftermath of the September 11 terrorist attacks, the Federal Government ordered hundreds of illegal aliens to be taken into custody and held pending a determination whether a particular detainee had connections to terrorism. Respondents, six men of Arab or South Asian descent, were detained for periods of three to six months in a federal facility in Brooklyn. After their release, they were removed from the United States. They then filed this putative class action against petitioners, two groups of federal officials. The first group consisted of former Attorney General John Ashcroft, for- mer Federal Bureau of Investigation Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar (Executive Officials). The second group consisted of the facili- ty’s warden and assistant warden Dennis Hasty and James Sherman (Wardens). Respondents sought damages for constitutional viola- tions under the implied cause of action theory adopted in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, alleging that peti- tioners detained them in harsh pretrial conditions for a punitive pur- pose, in violation of the Fifth Amendment; that petitioners did so be- cause of their actual or apparent race, religion, or national origin, in violation of the Fifth Amendment; that the Wardens subjected them to punitive strip searches, in violation of the Fourth and Fifth Amendments; and that the Wardens knowingly allowed the guards to abuse them, in violation of the Fifth Amendment. Respondents also brought a claim under 42 U. S. C. §1985(3), which forbids certain

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*Together with No. 15–1359, Ashcroft, Former Attorney General, et al. v. Abbasi et al., and No. 15–1363, Hasty et al. v. Abbasi et al., also on certiorari to the same court.

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ZIGLAR v. ABBASI Syllabus

conspiracies to violate equal protection rights. The District Court dismissed the claims against the Executive Officials but allowed the claims against the Wardens to go forward. The Second Circuit af- firmed in most respects as to the Wardens but reversed as to the Ex- ecutive Officials, reinstating respondents’ claims.

Held: The judgment is reversed in part and vacated and remanded in part.

789 F. 3d 218, reversed in part and vacated and remanded in part. JUSTICE KENNEDY delivered the opinion of the Court, except as to

Part IV–B, concluding:
1. The limited reach of the Bivens action informs the decision

whether an implied damages remedy should be recognized here. Pp. 6–14.

(a) In 42 U. S. C. §1983, Congress provided a specific damages remedy for plaintiffs whose constitutional rights were violated by state officials, but Congress provided no corresponding remedy for constitutional violations by agents of the Federal Government. In 1971, and against this background, this Court recognized in Bivens an implied damages action to compensate persons injured by federal officers who violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. In the following decade, the Court allowed Bivens-type remedies twice more, in a Fifth Amend- ment gender-discrimination case, Davis v. Passman, 442 U. S. 228, and in an Eighth Amendment Cruel and Unusual Punishments Clause case, Carlson v. Green, 446 U. S. 14. These are the only cases in which the Court has approved of an implied damages remedy un- der the Constitution itself. Pp. 6–7.

(b) Bivens, Davis, and Carlson were decided at a time when the prevailing law assumed that a proper judicial function was to “pro- vide such remedies as are necessary to make effective” a statute’s purpose. J. I. Case Co. v. Borak, 377 U. S. 426, 433. The Court has since adopted a far more cautious course, clarifying that, when decid- ing whether to recognize an implied cause of action, the “determina- tive” question is one of statutory intent. Alexander v. Sandoval, 532 U. S. 275, 286. If a statute does not evince Congress’ intent “to create the private right of action asserted,” Touche Ross & Co. v. Redington, 442 U. S. 560, 568, no such action will be created through judicial mandate. Similar caution must be exercised with respect to damages actions implied to enforce the Constitution itself. Bivens is well- settled law in its own context, but expanding the Bivens remedy is now considered a “disfavored” judicial activity. Ashcroft v. Iqbal, 556 U. S. 662, 675.

When a party seeks to assert an implied cause of action under the Constitution, separation-of-powers principles should be central to the

Cite as: 582 U. S. ____ (2017) 3

Syllabus

analysis. The question is whether Congress or the courts should de- cide to authorize a damages suit. Bush v. Lucas, 462 U. S. 367, 380. Most often it will be Congress, for Bivens will not be extended to a new context if there are “ ‘special factors counselling hesitation in the absence of affirmative action by Congress.’ ” Carlson, supra, at 18. If there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, courts must refrain from creating that kind of remedy. An alternative remedial structure may also limit the Judiciary’s power to infer a new Bivens cause of action. Pp. 8–14.

2. Considering the relevant special factors here, a Bivens-type rem- edy should not be extended to the claims challenging the confinement conditions imposed on respondents pursuant to the formal policy adopted by the Executive Officials in the wake of the September 11 attacks. These “detention policy claims” include the allegations that petitioners violated respondents’ due process and equal protection rights by holding them in restrictive conditions of confinement, and the allegations that the Wardens violated the Fourth and Fifth Amendments by subjecting respondents to frequent strip searches. The detention policy claims do not include the guard-abuse claim against Warden Hasty. Pp. 14–23.

(a) The proper test for determining whether a claim arises in a new Bivens context is as follows. If the case is different in a mean- ingful way from previous Bivens cases decided by this Court, then the context is new. Meaningful differences may include, e.g., the rank of the officers involved; the constitutional right at issue; the extent of judicial guidance for the official conduct; the risk of disruptive intru- sion by the Judiciary into the functioning of other branches; or the presence of potential special factors not considered in previous Bivens cases. Respondents’ detention policy claims bear little resemblance to the three Bivens claims the Court has approved in previous cases. The Second Circuit thus should have held that this was a new Bivens context and then performed a special factors analysis before allowing this damages suit to proceed. Pp. 15–17.

(b)The special factors here indicate that Congress, not the courts, should decide whether a damages action should be allowed.

With regard to the Executive Officials, a Bivens action is not “a proper vehicle for altering an entity’s policy,” Correctional Services Corp. v. Malesko, 534 U. S. 61, 74, and is not designed to hold officers responsible for acts of their subordinates, see Iqbal, supra, at 676. Even an action confined to the Executive Officers’ own discrete con- duct would call into question the formulation and implementation of a high-level executive policy, and the burdens of that litigation could prevent officials from properly discharging their duties, see Cheney v.

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ZIGLAR v. ABBASI Syllabus

United States Dist. Court for D. C., 542 U. S. 367, 382. The litigation process might also implicate the discussion and deliberations that led to the formation of the particular policy, requiring courts to interfere with sensitive Executive Branch functions. See Clinton v. Jones, 520 U. S. 681, 701.

Other special factors counsel against extending Bivens to cover the detention policy claims against any of the petitioners. Because those claims challenge major elements of the Government’s response to the September 11 attacks, they necessarily require an inquiry into na- tional-security issues. National-security policy, however, is the pre- rogative of Congress and the President, and courts are “reluctant to intrude upon” that authority absent congressional authorization. Department of Navy v. Egan, 484 U. S. 518, 530. Thus, Congress’ failure to provide a damages remedy might be more than mere over- sight, and its silence might be more than “inadvertent.” Schweiker v. Chilicky, 487 U. S. 412, 423. That silence is also relevant and telling here, where Congress has had nearly 16 years to extend “the kind of remedies [sought by] respondents,” id., at 426, but has not done so. Respondents also may have had available “ ‘other alternative forms of judicial relief,’ ” Minneci v. Pollard, 565 U. S. 118, 124, including in- junctions and habeas petitions.

The proper balance in situations like this, between deterring con- stitutional violations and freeing high officials to make the lawful de- cisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary. The Second Circuit thus erred in allowing respondents’ detention policy claims to proceed under Bivens. Pp. 17–23.

3. The Second Circuit also erred in allowing the prisoner abuse claim against Warden Hasty to go forward without conducting the required special factors analysis. Respondents’ prisoner abuse alle- gations against Warden Hasty state a plausible ground to find a con- stitutional violation should a Bivens remedy be implied. But the first question is whether the claim arises in a new Bivens context. This claim has significant parallels to Carlson, which extended Bivens to cover a failure to provide medical care to a prisoner, but this claim nevertheless seeks to extend Carlson to a new context. The constitu- tional right is different here: Carlson was predicated on the Eighth Amendment while this claim was predicated on the Fifth. The judi- cial guidance available to this warden with respect to his supervisory duties was less developed. There might have been alternative reme- dies available. And Congress did not provide a standalone damages remedy against federal jailers when it enacted the Prison Litigation Reform Act some 15 years after Carlson. Given this Court’s ex- pressed caution about extending the Bivens remedy, this context

Cite as: 582 U. S. ____ (2017) 5

Syllabus

must be regarded as a new one. Pp. 23–26.
4. Petitioners are entitled to qualified immunity with respect to re-

spondents’ claims under 42 U. S. C. §1985(3). Pp. 26–32.
(a) Assuming that respondents’ allegations are true and well pleaded, the question is whether a reasonable officer in petitioners’ position would have known the alleged conduct was an unlawful con- spiracy. The qualified-immunity inquiry turns on the “objective legal reasonableness” of the official’s acts, Harlow v. Fitzgerald, 457 U. S. 800, 819, “assessed in light of the legal rules that were ‘clearly estab- lished’ at the time [the action] was taken,” Anderson v. Creighton, 483 U. S. 635, 639. If it would have been clear to a reasonable officer that the alleged conduct “was unlawful in the situation he confront- ed,” Saucier v. Katz, 533 U. S. 194, 202, the defendant officer is not entitled to qualified immunity. But if a reasonable officer might not have known that the conduct was unlawful, then the officer is enti-

tled to qualified immunity. Pp. 27–29.
(b) Here, reasonable officials in petitioners’ positions would not

have known with sufficient certainty that §1985(3) prohibited their joint consultations and the resulting policies. There are two reasons. First, the conspiracy is alleged to have been among officers in the same Department of the Federal Government. And there is no clear- ly established law on the issue whether agents of the same executive department are distinct enough to “conspire” with one another within the meaning of 42 U. S. C. §1985(3). Second, open discussion among federal officers should be encouraged to help those officials reach con- sensus on department policies, so there is a reasonable argument that §1985(3) liability should not extend to cases like this one. As these considerations indicate, the question whether federal officials can be said to “conspire” in these kinds of situations is sufficiently open that the officials in this suit would not have known that §1985(3) applied to their discussions and actions. It follows that rea- sonable officers in petitioners’ positions would not have known with any certainty that the alleged agreements were forbidden by that statute. Pp. 29–32.

KENNEDY, J., delivered the opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which ROBERTS, C. J., and THOMAS and ALITO, JJ., joined, and an opinion with respect to Part IV–B, in which ROB- ERTS, C. J., and ALITO, J., joined. THOMAS, J., filed an opinion concur- ring in part and concurring in the judgment. BREYER, J., filed a dis- senting opinion, in which GINSBURG, J., joined. SOTOMAYOR, KAGAN, and GORSUCH, JJ., took no part in the consideration or decision of the cases.

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

It was an odd opinion in that only six Justices participated, so the majority was 4-2. The majority opinion was Justice Kennedy, joined by Chief Justice Roberts and Justices Thomas and Alito. But, the Chief Justice and Justices Thomas and Alito also wrote or joined in separate concurring opinions. Justice Breyer wrote a dissenting opinion in which Justice Ginsburg joined.

Justices Sotomayer, Kagan, and Gorsuch sat this one out. Justice Sotomayor previously was a Judge on the Second Circuit at the time this case was before that court. Justice Kagan worked on the case as Solicitor General. And, Justice Gorsuch arrived too late to participate in the argument and deliberations.

However, I doubt that there would be a difference in result with all nine Justices voting. Justice Gorsuch almost certainly would side with the majority opinion’s “strict construction” of liability. Even assuming that Justices Sotomayor and Kagan would side with the dissenters, there would still be a 5-4 majority for the approach set forth in Justice Kennedy’s opinion.

Reading between the lines here, I think that the whole Bivens concept is “on the rocks” before this Court.  The current, more conservative, Court clearly wishes Bivens were never decided and wants to limit it essentially to its facts. With a GOP President, any future appointments are likely to turn the tide even more solidly for overruling or strictly limiting Bivens.

I must admit to having mixed feelings. As a Government Senior Executive I was subject to several (totally unfounded) Bivens suits. I was greatly relieved and totally delighted when the doctrines of absolute and implied immunity got me dismissed in my private capacity. I also took out a standard Government approved “Bivens liability insurance policy” just in case.

On the other hand, I’d have to say that the specter of being involved in Bivens litigation was something that I and almost all of the other senior government officials whom I advised and worked with, up to and including Cabinet officers, had Bivens in the back of our “collective minds” in determining actions and policies. So, there was at least some “deterrent value” in the Bivens case. Moreover, it was an effective tool for pointing out the necessity for line enforcement officers, whom I often trained or advised, to keep their actions within clearly established constitutional boundries.

The Court suggests that it would be best for Congress to address this subject. But, Bivens has been around for many years and Congress has never addressed it. So, I wouldn’t hold my breath.

Interestingly, among those high-ranking officials who were relieved of any liability in this case were former Attorney General John Ashcroft and then FBI Director Robert Mueller.

PWS

06-19-17

 

 

Welcome To Jeff Sessions’s America — In 1957 Sessions Was 10 Years Old And His White Christian Fellow Alabamans Were Busy Perverting The “Rule Of Law” To Deny Their African American Fellow Citizens Constitutional Rights, Fundamental Justice, & Human Dignity!

https://www.washingtonpost.com/opinions/a-white-cop-dies-and-a-young-black-man-spends-years-in-jail-for-a-crime-he-didnt-do/2017/06/16/d771059e-4706-11e7-a196-a1bb629f64cb_story.html?hpid=hp_regional-hp-cards_rhp-card-arts%3Ahomepage%2Fcard&utm_term=.a94b2ba61075

Colbert I. king writes in the Washington Post:

“How is it possible in a country that prides itself on having a Bill of Rights, expresses reverence for due process and touts equal protection that a 17-year-old can be arrested, put on trial and sentenced to death, and then spend 13 years being shuttled among death row cellblocks in disgusting jails and prisons with his case under appeal, all for a crime he didn’t commit?

The answer contains some simple prerequisites: He had to be black, live in the Jim Crow South and be accused of committing, as one deputy sheriff put it, a “supreme offense, on the same level of a white woman being raped by a black man” — that is, the murder of a white police officer.

Teenager Caliph Washington, a native of Bessemer, Ala., was on the receiving end of all three conditions. And as such, Washington became a sure-fire candidate to suffer the kind of tyrannical law enforcement and rotten jurisprudence that Southern justice reserved for blacks of any age.

In “He Calls Me by Lightning,” S. Jonathan Bass, a professor at Alabama’s Samford University and a son of Bessemer parents, resurrects the life of Washington, who died in 2001 finally out of prison — but with charges still hanging over his head.

 

Bass, however, does more than tell Washington’s tale, as Washington’s widow, Christine, had asked him to do in a phone call. Bass dives deeply into the Bessemer society of 1957 where Washington was accused of shooting white police officer James “Cowboy” Clark on an empty dead-end street near a row of run-down houses on unpaved Exeter Alley.

Bessemer-style justice cannot be known, let alone understood, however, without learning about that neo-hardscrabble town 13 miles southwest of Birmingham.

Bessemer served as home to a sizable black majority, an entrenched white power structure and an all-white police department, consisting at the time of a “ragtag crew of poorly paid, ill-trained, and hot-tempered individuals” who earned less than Bessemer’s street and sanitation workers.

Bessemer was a town with its own quaint racial customs, such as forcing black men to “walk in the middle of the downtown streets, not on the sidewalks, after dark — presumably to keep them from any close contact with white women.”

 

Bessemer was a town where in 1944 the police forced black prisoners to participate in an Independence Day watermelon run. White citizens reportedly cheered as firefighters blasted the inmates with high-pressure hoses to make the race more challenging. Winners, it is said, received reduced sentences and the watermelons.

It was in that town that Caliph Washington was born in 1939, the same year of my birth in Washington, D.C.

Bessemer’s racial climate was no different the year Washington was accused of killing Cowboy Clark. The town’s prevailing attitude on race was captured at the time in a pamphlet distributed by a segregationist group, the Bessemer Citizens’ Council. Black Christians, the white citizens’ council said, should remain content with being “our brothers in Christ without also wanting to become our brothers-in-law.”

If ever there was a place to not get caught “driving while black” — which is what Washington was doing on that fateful night in July 1957 — it was Bessemer. And that night’s hazard appeared in the form of Clark and his partner, Thurman Avery, who were cruising the streets in their patrol car looking for whiskey bootleggers.”

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Read the rest of King’s op-ed at the link.

So, when you hear Sessions and his White Nationalist buddies like Bannon, Miller, Kobach, and Pence extolling the virtues of a small Federal Government (except for the migrant-bashing mechanisms) state control of voting, civil rights, police conduct, gender fairness, environmental regulations, labor relations, filling the prisons with maximum sentences, a new war on drugs, etc., it’s just clever code for “let’s make sure that white-dominated state and local governments can keep blacks, hispanics, immigrants, Muslims, and other minorities from achieving power, equality, and a fair share of the pie.” After all, if you believe, as these guys do, that true democracy can be a bad thing if it means diversity and power sharing, then you’re going to abuse the legal and political systems any way you can to maintain your hold on power.

And, of course, right-wing pontificating about the “rule of law” means  nothing other than selective application of some laws to the disadvantage of minorities, immigrants, and often women. You can see how selective Sessions’s commitment to the rule of law is when he withdraws DOJ participation in voting rights cases in the face of strong evidence of racial gerrymandering, withdraws support from protections for LGBT individuals, supports imprisonment in substandard prisons, targets legal marijuana, and “green lights” troubled police departments to prioritize aggressive law enforcement over the protection of minority citizens’ rights. Ethics laws, in particular, seems to be far removed from the Sessions/Trump concept of “Rule of Law.” And, sadly, this is only the beginning of the Trump Administration’s assault on our Constitution, our fundamental values, and the “real” “Rule of Law.”

PWS

06-18-17

WSJ: 47 Years Have Passed, But The Mariel Boatlift Is Still Generating Controversy!

https://www.wsj.com/article_email/the-great-mariel-boatlift-experiment-1497630468-lMyQjAxMTI3NTEyNzIxMDc0Wj/

Ben Leubsdorf writes in the WSJ:

“In the spring and summer of 1980, some 125,000 Cuban refugees sailed from the port town of Mariel on fishing boats and pleasure craft toward the U.S., many destined to settle in Miami.

Nearly four decades later, that exodus is at the center of an unresolved, sometimes bitter argument among economists, hinging on a basic question: When foreigners come to the U.S., does their presence drive down the wages of native workers? The long-running dispute has gained new relevance as the Trump administration tries to implement and enforce a stricter immigration policy.

Research published a decade after the Mariel boatlift, as well as more recent analyses, concluded that the influx of Cuban migrants didn’t significantly raise unemployment or lower wages for Miamians. Immigration advocates said the episode showed that the U.S. labor market could quickly absorb migrants at little cost to American workers.

But Harvard University’s George Borjas, a Cuban-born specialist in immigration economics, reached very different conclusions. Looking at data for Miami after the boatlift, he concluded that the arrival of the Marielitos led to a large decline in wages for low-skilled local workers.

 While the debate rages in the academy and online, Dr. Borjas and his views are ascendant in the political realm. Attorney General Jeff Sessions cited his research for years while a senator. President Donald Trump, with whom Dr. Borjas met during last year’s campaign, has echoed the Harvard economist’s research by regularly saying that low-wage immigrants hurt some Americans.

“This is his moment,” said David Card, the author of the early research on the boatlift that Dr. Borjas is seeking to upend. (The Justice Department declined to comment, and the White House didn’t respond to requests for comment.)

Dr. Borjas has sparred for years with Dr. Card, an economist at the University of California, Berkeley, as well as with Giovanni Peri of the University of California, Davis. In 2015, Dr. Borjas and Dr. Peri released papers three months apart that arrived at wildly different conclusions about Mariel.

The argument among the academics—all immigrants themselves—has escalated into charges of bias and bad faith. Dr. Peri and a co-author dismissed Dr. Borjas’s study as having “serious limitations.” Dr. Borjas fired back that “sloppiness” in their own paper “helps obfuscate what your eyes can clearly see and leads to a claim that nothing at all happened in post-Mariel Miami.”

Dr. Card and Dr. Peri, reviewing a textbook by Dr. Borjas several months later, said that he only “presents half the story about the economics of immigration.” Last fall, in another book, Dr. Borjas compared Dr. Peri to Marxist-Leninist teachers in his native Cuba: “They believed. All that was left was to compel everyone else to believe as well.”

The real-world stakes in the dispute are considerable. More than 43 million U.S. residents were born somewhere else, and most of the rest are descended from immigrants. Still, for more than two centuries, waves of migration have provoked backlashes from Americans worried about the nation’s economy, culture and social makeup.

Among economists today, there is little controversy about the benefits of immigration for the economy as a whole. A roughly 500-page assessment last year by the National Academies of Sciences, Engineering, and Medicine, which reviewed decades of research, concluded that immigrants are “integral to the nation’s economic growth” and have little or no effect on overall employment and earnings for workers already in the U.S.

A Cuban refugee rests on his cot in Miami’s ‘tent city,’ Aug. 18, 1980. At the time, five out of every six working-age Cuban refugees in Florida’s Dade County were without a job.
A Cuban refugee rests on his cot in Miami’s ‘tent city,’ Aug. 18, 1980. At the time, five out of every six working-age Cuban refugees in Florida’s Dade County were without a job.PHOTO: ASSOCIATED PRESS

The report said that experiences aren’t the same for everyone and noted that some studies have found “sizable negative short run wage impacts” for U.S.-born high-school dropouts, the group most likely to compete for work with low-skilled immigrants.

“There’s no free lunch. There’s going to be some effect of immigration” on wages, said Pia Orrenius, a senior economist at the Federal Reserve Bank of Dallas and a member of the panel that wrote the 2016 report. But, she added, the flexible U.S. economy adapts and should render any hit to the wages of native workers “a short-run phenomenon.”

Those most exposed to competition from new arrivals have long been a focus for Dr. Borjas. “Immigration is not like manna from heaven,” he said. “It can be great on average, but it doesn’t mean that every single person benefits.”

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

Read the entire article at the link.

First, I find it interesting that Dr. Borjas, who came here as an immigrant, seems so highly motivated to prove that those who came after him weren’t as “worthy.”  Sort of a “I’m OK, but you guys not so much” approach.

Second, none of these studies seem to go into the human element of immigration. What were to forces that drove the Marielitos to come? What have they accomplished in the long run? Did Americans in low wage jobs in Miami really sink into poverty and go on welfare, or did they just move on to other types of work that perhaps paid more?

Third, why don’t economists spend less time on analyzing the past and more time on figuring out how to minimize or avoid any adverse effects of immigration, even if those effects are only short-term and unequally distributed across the working population.

Fourth, I was at the “Legacy INS” during the boatlift and was involved in an intense effort to stop it. We used arrests, mass detention, vessel seizures, fines, criminal prosecutions, deterrents, warnings and public service announcements, and exclusion proceedings. But, frankly, nothing really worked until Castro closed the port of Mariel again. The Cuban Adjustment Act, which is still in effect, also made it difficult or impossible to return Cubans who had no prior criminal records.

Eventually, the Reagan Administration came up with controversial policy of high seas interdiction, which has been used in the Caribbean to some extent by every succeeding Administration. Although interdiction survived Supreme Court review, it has criticized by many and is inconsistent with at least the spirit, if not the letter, of the UN Convention and Protocol, to which we are a party. I doubt, however, that interdiction could have stopped the Cuban boat lift, given the large number of boats and American citizens of Cuban descent who participated in going to Mariel to transport relatives, friends, or former neighbors or co-workers who wanted to leave Cuba.

Fifth, and finally, I find the Mariel Boatlift to be one of the “major events” of modern U.S. refugee history.  It has left a legacy of four enforcement strategies that are still with us today:

 * The use of long-term mass civil immigration detention as a deterrent;

* High seas interdiction;

* Overall negative vibes and case law on asylum applicants who are part of a so-callled “mass migration situation” (“Scarface Syndrome,” a reference to the Al Pacino movie about a Cuban drug kingpin who used the boatlift to get a foothold in the U.S.);

* A belief that the case-by-case adjudication procedures established by the Refugee Act of 1980 are inadequate to handle mass migrations (probably one of the origins of “expedited removal” procedures).

PWS

06-18-17

 

 

 

 

 

 

 

 

 

 

 

 

WashPost: GANGS — A Complicated Problem With No Easy Solution — Budget Cuts Undermine Some Local Programs!

https://www.washingtonpost.com/local/public-safety/ms-13-gains-recruits-and-power-in-us-as-teens-surge-across-border/2017/06/16/aacea62a-3989-11e7-a058-ddbb23c75d82_story.html?hpid=hp_rhp-top-table-main_ms-13-1240pmm%3Ahomepage%2Fstory&utm_term=.5745c22fb3d0

Michael E. Miller, Dan Morse, and Justin Jouvenal report:

“The increasing MS-13 violence has become a flash point in a national debate over immigration. President Trump and Attorney General Jeff Sessions have vowed to eradicate the gang, while immigrant advocates say the young people are being scapegoated to further an anti-immigrant agenda.

Danny’s case illustrates just how difficult the balance between compassion and safety can be. Was he a child who needed help? Or a gang member who shouldn’t have been here?

“Do you close the doors to all law-abiding folks who just want to be here and make a better life . . . and in the process keep out the handful who are going to wreak havoc on our community?” asked one federal prosecutor, who is not permitted to speak publicly and has handled numerous MS-13 cases. “Or do you open the doors and you let in good folks and some bad along with the good?”

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Read the entire, much longer, article at the link.

it does seem short sighted to save a few bucks by cutting some of the few programs specifically designed to address this issue.

PWS

06-16-17

 

CAL Moves To Thwart Additional Immigration Detention!

https://www.buzzfeed.com/adolfoflores/california-deals-blow-to-trumps-plan-to-expand-immigrant?utm_term=.wu6ag8mx2#.ph7jvNV2r

Adolfo Flores reports in BuzzFeed:

“California lawmakers on Thursday dealt a blow to the Trump administration’s plans to expand capacity for detaining undocumented immigrants in the state.

The provision, which is part of California’s $125-billion budget, stops local jurisdictions from signing new contracts or expanding existing contracts with US Immigration and Customs Enforcement (ICE) for detaining immigrants. It also requires the state attorney general to conduct reviews of all detention facilities holding immigrants. The budget plan now goes to the desk of Gov. Jerry Brown, who is expected to sign it.

California’s move comes as ICE is seeking a $1.2-billion increase in funding for the next fiscal year. The agency’s budget calls for nearly $4.9 billion to expand detention capacity to 51,379, with the ability to hold about 49,000 adults and 2,500 families.

At the same time, the Trump administration has expanded the pool of deportation priorities to include nearly all 11 million undocumented immigrants.

California state Sen. Nancy Skinner, who introduced the language into the bill, cited that expanded pool of possible deportees as a major reason for the new rule.

“That’s just an absurd expansion, which California overall rejects,” Skinner told BuzzFeed News. “We don’t support the president’s broad executive orders and we feel that any detainee should be treated humanely.”

A razor wire fence surrounds the Adelanto immigration detention center, which is run by the Geo Group Inc.

Lucy Nicholson / Reuters

A razor wire fence surrounds the Adelanto immigration detention center, which is run by the Geo Group Inc.

The Golden State is home to nine immigration detention facilities, and all but Otay Mesa Detention Center in San Diego contract with local jurisdictions to hold immigrants. A recent report from Human Rights Watch estimates that 65,000 immigrants are detained in California every year, second only to Texas.

Grace Meng, senior researcher at Human Rights Watch, said it’s an unprecedented move by a state with so many immigrant detainees.

“People think of California as a liberal state that’s anti-Trump and pro-immigrant, but after Texas, it holds more immigrants than any other state,” Meng told BuzzFeed News. “This certainly can’t stop Trump’s detention plan singlehandedly, but it’s an important step for a state to take.”

However, Virginia Kice, spokeswoman for ICE, said placing limitations on the agency’s detention options in California won’t hinder their efforts.

“It will simply mean ICE will have to transfer individuals encountered in California to detention facilities outside the state, at a greater distance from their family, friends, and legal representatives,” Kice said in a statement to BuzzFeed News.”

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Read the complete article at the link.

Yeah, as if keeping folks near “family, friends, and legal representatives” was ever a factor in DHS detention decisions. What a complete crock!

No, it’s largely about money, using detention as a deterrent/demoralizer, and, occasionally, forum shopping by the DHS to gets folks into Circuits where the law is less favorable to their claims for relief. In the latter respect, DHS could actually benefit from detaining more folks outside the jurisdiction of the 9th Circuit. It also appears that lining the pockets of certain private detention contractors and state jurisdictions might be a factor in jacking up needless detention. Added to the steady stream of deaths in immigration detention, it has become a pretty unwholesome business.

It starts with a “detention-happy” Congress and goes down the line from there. To date, those who have promoted and enabled overuse of immigration detention have escaped political, legal, and moral accountability. But, history is infinitely long and has a funny way of eventually catching up with those who seek to evade its judgments, even after death.

PWS

06-15-17

TRAC Finds Immigration Prosecutions Down Through April 2017!

Transactional Records Access Clearinghouse
==========================================

FOR IMMEDIATE RELEASE

Greetings. The latest available data from the Justice Department show that during April 2017 the government reported 4,434 new criminal prosecutions as a result of referrals from the immigration and customs components of the Department of Homeland Security. According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, prosecutions fell 17.5 percent from the previous month, and have dropped 42.9 percent from the levels recorded a year ago during April 2016.

These trends do not as yet reflect the impact of Attorney General Jeff Sessions’ April 11, 2017 directive calling for the stepped up use of criminal sanctions in the immigration area.

Criminal prosecutions remain concentrated in the five districts along the nation’s southwest border with Mexico. In April, New Mexico was the most active of these five relative to its population size, and the Southern District of California (San Diego) was second. Per capita prosecution rates in these two districts far surpassed those for the Southern District of Texas (Houston) and the Western District of Texas (San Antonio) that had ranked first and second a year ago.

In April immigration-related criminal prosecutions from DHS referrals had fallen to around 42 percent of federal prosecutions of all types. When customs and drug-related DHS referrals were added, DHS accounted for roughly half of all federal criminal prosecutions, down from almost two out of three a year ago.

To see the full report go to:

http://trac.syr.edu/immigration/reports/472/

In addition, many of TRAC’s free query tools – which track new DHS filings, court dispositions, the handling of juvenile cases and much more – have now been updated through April 2017. For an index to the full list of TRAC’s immigration tools go to:

http://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563

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As pointed out by TRAC, this report does not reflect the possible impact of Attorney General Sessions’s “fill up the jails” speech on April 11.

PWS

06-15-17

Why Is The U.S. Immigration Court So Totally Screwed Up? — Sure, Bad Laws & Inadequate Resources Are Endemic Problems — But, Trying To Run A Due Process Court System As An Agency Of A Political Department Which Is Clueless About Effective Judicial Administration Is The Overriding Reason This System Is “Built To Fail!”

http://immigrationimpact.com/2017/06/08/immigration-courts-backlog/

Tory Johnson writes in Immigration Impact:

“Anyone familiar with the immigration system knows that the immigration courts have an enormous backlog which has persisted—and grown—for more than a decade. As of April 2017, the immigration court backlog topped 585,930 cases, more than double the pending cases in fiscal year (FY) 2006 (212,000).

The immigration court backlog means that many people wait years to have their cases resolved. According to a June 2017 report from the Government Accountability Office (GAO), the average time a case remains pending with the Executive Office for Immigration Review (EOIR)—the office within the Department of Justice that adjudicates immigration cases—has increased. In FY 2006, cases took an average of 198 days to complete; now the average is 650 days.

For years government officials, external stakeholders, and others have attributed the growing backlog to staffing shortages, lack of resources, and changing priorities. GAO’s recent analysis affirms some of these problems, but found that average case completion times increased—from 43 days in FY 2006 to 286 days in FY 2015—even though the number of immigration judges increased by 17 percent in the last decade.

So what’s making cases take longer in immigration court, and contributing to the backlog?

In part, judges are taking more time to complete cases, especially as new hires get up to speed. Respondents to GAO’s investigation most commonly cited a lack of adequate staff as a cause of the backlog, but “immigration judges from five of the six courts [GAO] contacted also stated that they do not have sufficient time to conduct administrative tasks, such as case-related legal research or staying updated on changes to immigration law.”

Indeed, over the 10-year period, judges issued 54 percent more case continuances, or a temporary postponement of case proceedings, on their own volition—due to unplanned leave or insufficient time to complete a hearing, for example. Immigration judges may also grant a continuance to allow respondents time to obtain legal representation— since immigrants do not receive government-provided counsel— which demonstrably shortens the length of a case.

There is concern that the backlog may only worsen under the current administration. In order to carry out President Trump’s directives to ramp up immigration enforcement and deportations, the Justice Department has started relocating immigration judges. But transferring judges—many of whom have been reassigned to detention centers—for the purpose of speeding up immigration cases has alarmed immigration experts, who fear case delays will increase in immigration judges’ usual courts, adding to the backlog.

While the directives were not analyzed in GAO’s review, the report’s focus on systemic issues exacerbating the backlog makes the plans to shuffle judges to new courts all the more concerning.

GAO made 11 recommendations in the following areas that would “better position EOIR to address its case backlog and help improve the agency’s overall effectiveness and efficiency in carrying out its important mission.” The recommendations included implementing better workplace planning and hiring practices; building an electronic filing system with oversight and management mechanisms; video-teleconferencing (VTC) assessments to ensure neutral outcomes; and creating efficient management practices and comprehensive performance measures for all cases.

While some of these issues are being addressed—such as implementing a plan to streamline hiring—GAO found that the efforts EOIR cited do not fully address the concerns outlined in the report. In particular, EOIR is lacking comprehensive technological capabilities, data on VTC hearings, performance assessments, and short- and long-term plans for staffing needs created by the 39 percent of retirement-eligible immigration judges.

The shortcomings further demonstrate the GAO’s conclusion that EOIR is lacking critical management, accountability, and performance evaluation systems. These mechanisms are essential for EOIR and oversight bodies, such as Congress, to accurately assess the immigration courts and ensure that EOIR is achieving its mission, which includes timely adjudication of all cases.

EOIR should take the GAO’s recommendations seriously and work to implement solutions—the fates of hundreds of thousands of people literally depend on it.”

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Sadly, the necessary changes are way beyond the capability of EOIR and the DOJ, particularly in light of current political leadership in the DOJ which seems determined to run the courts into the ground with ill-advised maximum enforcement initiatives and “aimless docket reshuffling.” EOIR has been an agency within the DOJ since 1983. It actually performs measurably worse today than it did in 2000. Expecting a “turnaround” within the DOJ is like expecting the Tooth Fairy to solve this problem.

You can check out my previous blog on the GAO report here:

http://immigrationcourtside.com/2017/06/02/gao-report-recommends-improvements-in-u-s-immigration-court-hiring-technology-data-analysis-oversight/

Note that the GAO discusses independent structures for the U.S. Immigration Court, but does not include a particular recommendation on that point.

But, I have one! We need an independent United States Immigration Court now! Otherwise the Immigration Court’s “due process meltdown” is eventually going to paralyze a large segment of the U.S. justice system. Yes, folks, it’s that bad! Maybe even worse, since DOJ and EOIR are “circling the wagons” to avoid public scrutiny and accountability. Tell your legislative representatives that we need an independent court now!

PWS

06-14-17