FORMER SEN. RUSS FEINGOLD IN THE GUARDIAN: TRUMP’s WHITE SUPREMACISM IS PART OF THE GOP AGENDA!

https://www.theguardian.com/commentisfree/2017/aug/19/republican-party-white-supremacists-charlottesville

Feingold writes:

“It takes approximately 30 seconds to send a tweet. A half hour to draft and release a statement. And the shelf life of both is only marginally longer. We should not commend Republican party elected officials who claim outrage on social media at Trump’s remarks, often without daring to mention his name. The phony claimed outrage becomes dangerous if it convinces anyone that there is a distinction between Trump’s abhorrent comments and the Republican Party agenda.

The lesson from Charlottesville is not how dangerous the neo-Nazis are. It is the unmasking of the Republican party leadership. In the wake of last weekend’s horror and tragedy, let us finally, finally rip off the veneer that Trump’s affinity for white supremacy is distinct from the Republican agenda of voter suppression, renewed mass incarceration and the expulsion of immigrants.

There is a direct link between Trump’s comments this week and those policies, so where is the outrage about the latter? Where are the Republican leaders denouncing voter suppression as racist, un-American and dangerous? Where are the Republican leaders who are willing to call out the wink (and the direct endorsement) from President Trump to the white supremacists and acknowledge their own party’s record and stance on issues important to people of color as the real problem for our country?

Republicans on the voter suppression commission are enabling Trump’s agenda and that of the white Nazi militia
Words mean nothing if the Republican agenda doesn’t change. Governors and state legislatures were so quick to embrace people of color in order to avoid the impression, they too share Trump’s supreme affinity for the white race. But if they don’t stand up for them they are not indirectly, but directly enabling the agenda of those same racists that Republican members were so quick to condemn via Twitter.

Gerrymandering, strict voter ID laws, felon disenfranchisement are all aimed at one outcome: a voting class that is predominantly white, and in turn majority Republican.

 

The white supremacist chant of, “you will not replace us,” could easily and accurately be the slogan for these Republican politicians. Their policies will achieve the same racial outcome as Jim Crow – the disenfranchisement and marginalization of people of color.

It is a sad day when more CEOs take action by leaving and shutting down Trump’s Strategy and Policy Forum, and Manufacturing Council, than elected officials take action leaving Trump’s “election integrity” commission.

Businessman are acting more responsive to their customers than politicians are to their voters. At the end of the day, which presidential council is more dangerous? Which most embodies the exact ideology that Trump spewed on Monday? A group of businessmen coming together to talk jobs or a group of elected officials coming together to disenfranchise voters of color?

Anyone still sitting on the voter suppression commission is enabling Trump’s agenda and that of the white Nazi militia that stormed Charlottesville to celebrate a time when the law enforced white supremacy.

If Republican lawmakers want to distinguish themselves from Trump’s comments, they need to do more than type out 144 characters on their phone. They need to take a hard look at their party’s agenda.”

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Read the full article at the link.

I’ve noticed the clear pattern going back to the beginning of the campaign: Trump says or does something totally outrageous; GOP leaders disassociate themselves and claim it doesn’t represent the “real” GOP (whatever that might be); shortly thereafter the same folks go back to supporting Trump and the GOP agenda directed at insuring White control. Nobody switches party, resigns in protest, or tells voters how incompetent and dangerous Trump is. Indeed, these guys are scared silly that they will actually turn off Trump’s White Nationalist base that insures them power even though it’s been many years since they racked up a majority of the popular vote in a national election. Trump then goes on to the next outrage, and the process repeats itself.

Someday, the majority of American voters might actually get a Government that represents their interests rather than those of a White Nationalist minority. But, not any time soon if the GOP can prevent it. So far, they are doing a bang up job of it.

PWS

08-19-17

 

 

 

 

TIME MAGGIE: DUE PROCESS TAKES ANOTHER HIT IN IMMIGRATION COURT WITH EOIR’S DISINGENUOUS MEMO DISCOURAGING CONTINUANCES IN IMMIGRATION COURT! — When Will The Article III Courts & Commentators Expose The REAL Fraud Being Fobbed Off On The Public By The Sessions DOJ & EOIR? — The DOJ Is Trying To Blame The “Champions Of Due Process” (Private Lawyers) For The “ADR” — Aimless Docket Reshuffling — That The DOJ Created And Actually Mandated— Hold The DOJ Fully Accountable For The Failure Of The U.S. Immigration Courts!

http://time.com/4902820/immigration-lawyers-judges-courts-continuance/

Tessa Berenson writes in Time:

“The president and attorney general have vowed to crack down on illegal immigration, and the new directive could help move cases through the system at a faster clip. Most immigration lawyers agree that the overloaded courts are a major issue. But they fear the end result will be more deportations as judges use the wide discretion afforded to them to curtail continuances. The Immigration and Nationality Act doesn’t establish a right to a continuance in immigration proceedings, Keller’s letter notes. They’re largely governed by a federal regulation which says that an “immigration judge may grant a motion for continuance for good cause shown.”

Immigration lawyers often rely heavily on continuances for their prep work because immigration law grants limited formal discovery rights. Unlike in criminal cases, in which the prosecution is generally required to turn over evidence to the defense, immigration lawyers often have to file a Freedom of Information Act request to find out what the government has on their client. These can take months to process.

“If their priority is speed, we all know that sounds really good, to be more efficient, but usually due process takes a hit when your focus is efficiency,” says Andrew Nietor, an immigration attorney based in San Diego. “By the time we are able to connect with our clients, that first court appearance might be the day after we meet somebody, so we haven’t had the opportunity to do the investigation and do the research. And up until several months ago, it was standard to give immigration attorneys at least one continuance for what they call attorney preparation. Now it’s not standard anymore.”

The Justice Department’s guidance says that “the appropriate use of continuances serves to protect due process, which Immigration Judges must safeguard above all,” and notes that “it remains general policy that at least one continuance should be granted” for immigrants to obtain legal counsel.

But the memo is more skeptical about continuances for attorney preparation. “Although continuances to allow recently retained counsel to become familiar with a case prior to the scheduling of an individual merits hearing are common,” it says, “subsequent requests for preparation time should be reviewed carefully.”

It remains to be seen if this careful review will streamline the ponderous system or add another difficulty for the harried lawyers and hundreds of thousands of immigrants trying to work their way through it. For Jeronimo, it may have been decisive. In mid-August, the judge found that the defense didn’t adequately prove Jeronimo’s deportation would harm his young daughter and gave him 45 days to voluntarily leave the United States. Now Jeronimo must decide whether to appeal his case. But he’s been held in a detention center in Georgia since March, and his lawyers worry that he has lost hope. He may soon be headed back to Mexico, five months after he was picked up at a traffic stop in North Carolina.”

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Read the complete article at the link.

OK, let’s have a reality check here. The tremendous backlog is NOT caused by giving respondents time to find an attorney in an already overwhelmed system or by giving those overworked and under-compensated private attorneys time to adequately prepare their clients’ cases.

No, it’s caused by two things both within the control of the Government. The first is the abuse of the system, actively encouraged by this Administration, for cases of individuals who are law abiding members of the U.S. community, helping our nation prosper, who either should be granted relief outside the Immigrant Court process, or whose cases should be taken off the docket by the reasonable use of prosecutorial discretion (something that the Trump Administration eliminated while outrageously calling it a “return to the rule of law” — nothing of the sort — it’s a return to docket insanity enhanced by intentional cruelty).

Your tax dollars actually pay for the wasteful and counterproductive abuses being encouraged by the Trump Administration! Eventually, Congress will have to find a solution that allows all or most of these folks to stay. But, mindlessly shoving them onto already overwhelmed Immigration Court dockets is not that solution.

The second major cause is even more invidious: Aimless Docket Reshuffling (“ADR”) by the Government! The problematic continuances being given in this system — those of many months, or even many years — are forced upon Immigration Judges by EOIR and the DOJ, usually without any meaningful input from either the sitting Immigration Judges or the affected public. Immigration Judges are required to accommodate politically-motivated “changes in priorities” and wasteful transfer of Immigration Judges wth full dockets (which then must be reset, usually to the end of the docket, sometimes to another Immigration Judge) to other locations, often in detention centers, to support enforcement goals without any concern whatsoever for due process for the individuals before the court or the proper administration of justice within the U.S. Immigration Court system.

There is only one real cure for this problem: removal of the U.S. Immigration Courts from the highly politicized U.S. Department of Justice to an independent Article I Court structure that will focus  on due process foremost, and efficient, but fair, court administration. But, until then, it’s up to the press to expose what’s really happening here and to the Article III Courts to call a halt to this travesty.

The “heroes” of the U.S. Immigration Court system, dedicated NGOs and attorneys, many of them acting without compensation or with minimal compensation, are under attack by this Administration and the DOJ. Their imaginary transgression is to insist on a fair day in court for individuals trying to assert their constitutional right to a fair hearing. They are being scapegoated for problems that the U.S. Government has caused, aggravated, and failed to fix, over several Administrations.

The DOJ is creating a knowingly false narrative to cover up their failure to deliver due process in the U.S. Immigration Courts and to shift the blame to the victims and their representatives. A simple term for that is “fraud.”

If we allow this to happen, everyone will be complicit in an assault not only on American values but also on the U.S. Constitution itself, and the due process it is supposed to guarantee for all. If it disappears for the most vulnerable in our society, don’t expect it to be there in the future when you or those around you might need due process of law. And, when you don’t get due process, you should also expect the Government to blame you for their failure.

PWS

08-19-17

 

IMMIGRATIONPROF BLOG: PROFESSOR BILL ONG HING LAYS BARE THE WHITE NATIONALIST INTENT BEHIND THE RAISE ACT — “Asian, Latino, and African Exclusion Act of 2017” — And, It’s Bad For Our Economy To Boot!

http://lawprofessors.typepad.com/immigration/2017/08/trumps-asian-latino-and-african-exclusion-act-of-2017.html

Professor Ong Hing writes:

“From the Los Angeles and San Francisco Daily Journal:

President Trump’s recent call for overhauling the legal immigration system suffers from serious racial implications and violations of basic family values. Earlier this month he endorsed the Reforming American Immigration for a Strong Economy (RAISE) Act, which would eliminate all family reunification categories beyond spouses and minor children of U.S. citizens and lawful permanent residents (reducing the age limit for minor children from 21 to 18), and would lower capped family categories from 226,000 green cards presently to 88,000. The prime relatives targeted for elimination are siblings of U.S. citizens and adult children of citizens and lawful residents. The diversity immigration lottery program, which grants 50,000 green cards to immigrants from low-admission countries, also would be terminated. The RAISE Act is essentially the Asian, Latino, and African Exclusion Act of 2017. Why? Because the biggest users of family immigration categories are Asians and Latinos, and the biggest beneficiaries of the diversity lottery are Africans.

The RAISE Act is an elitist point system that favors those with post-secondary STEM degrees (science, technology, engineering, or mathematics), extraordinary achievement (Nobel laureates and Olympic medalists), $1.35 to $1.8 million to invest, and high English proficiency. However, it fails to connect prospective immigrants with job openings and makes incorrect assumptions about family immigrants.

Promoting family reunification has been a major feature of immigration policy for decades. Prior to 1965, permitting spouses of U.S. citizens, relatives of lawful permanent residents, and even siblings of U.S. citizens to immigrate were important aspects of the immigration selection system. Since the 1965 reforms, family reunification has been the major cornerstone of the immigration admission system. Those reforms, extended in 1976, allowed twenty thousand immigrant visas for every country. Of the worldwide numerical limits, about 80 percent were specified for “preference” relatives of citizens and lawful permanent residents, and an unlimited number was available to immediate relatives of U.S. citizens. The unlimited immediate relative category included spouses, parents of adult citizens, and minor, unmarried children of citizens. The family preference categories were established for adult, unmarried sons and daughters of citizens, spouses and unmarried children of lawful permanent resident aliens, married children of citizens, and siblings of citizens. Two other preferences (expanded in 1990) were established for employment-based immigration.

Asian and Latino immigration came to dominate these immigration categories. The nations with large numbers of descendants in the United States in 1965, i.e., western Europe, were expected to benefit the most from a kinship-based system. But gradually, by using the family categories and the labor employment route, Asians built a family base from which to use the kinship categories more and more. By the late 1980s, virtually 90 percent of all immigration to the United States – including Asian immigration – was through the kinship categories. And by the 1990s, the vast majority of these immigrants were from Asia and Latin America. The top countries of origin of authorized immigrants to the United States today include Mexico, China, India, the Philippines, the Dominican Republic, Vietnam, and El Salvador.

As Asian and Latin immigrants began to dominate the family-based immigration system in the 1970s and 1980s, somehow the preference for family reunification made less sense to some policymakers. Since the early 1980s, attacking kinship categories – especially the sibling category – has become a political sport played every few years. Often the complaint is based on arguments such as we should be bringing in skilled immigrants, a point system would be better, and in the case of the sibling category, brothers and sisters are not part of the “nuclear” family. Proposals to eliminate or reduce family immigration were led by Senator Alan Simpson throughout the 1980s, Congressman Bruce Morrison in 1990, and Senator Simpson and Congressman Lamar Smith in 1996. As prelude to the RAISE Act, the Senate actually passed S.744 in 2013 that would have eliminated family categories and installed a point system in exchange for a legalization program for undocumented immigrants.

Pitting so-called “merit-based” visas in opposition to family visas implies that family immigration represents the soft side of immigration while point-based immigration is more about being tough and strategic. The wrongheadedness of that suggestion is that family immigration has served our country well even from a purely economic perspective. The country needs workers with all levels of skill, and family immigration provides many of the needed workers.

A concern that the current system raises for some policymakers is based on their belief that the vast majority of immigrants who enter in kinship categories are working class or low-skilled. They wonder whether this is good for the country. Interestingly enough, many immigrants who enter in the sibling category actually are highly skilled. The vast majority of family immigrants are working age, who arrive anxious to work and ready to put their time and sweat into the job. But beyond that oversight by the complainants, what we know about the country and its general need for workers in the short and long terms is instructive.

The Wharton School of Business projects that the RAISE Act would actually lead to less economic growth and fewer jobs. Job losses would emerge because domestic workers will not fill all the jobs that current types of immigrant workers would have filled. In the long run, per capita GDP would dip. Furthermore, in the Bureau of Labor Statistics’s forecast of large-growth occupations, most jobs require only short- or moderate-term on-the-job training, suggesting lower skilled immigrants could contribute to meeting the demand for these types of jobs.

The economic data on today’s kinship immigrants are favorable for the country. The entry of low-skilled as well as high-skilled immigrants leads to faster economic growth by increasing the size of the market, thereby boosting productivity, investment, and technological practice. Technological advances are made by many immigrants who are neither well-educated nor well-paid. Moreover, many kinship-based immigrants open new businesses that employ natives as well as other immigrants; this is important because small businesses are now the most important source of new jobs in the United States. The current family-centered system results in designers, business leaders, investors, and Silicon Valley–type engineers. And much of the flexibility available to American entrepreneurs in experimenting with risky labor-intensive business ventures is afforded by the presence of low-wage immigrant workers. In short, kinship immigrants contribute greatly to this country’s vitality and growth, beyond the psychological benefits to family members who are able to reunite.

The preamble to the Universal Declaration of Human Rights highlights the unity of the family as the “foundation of freedom, justice and peace in the world” for good reason. Our families make us whole. Our families define us as human beings. Our families are at the center of our most treasured values. Our families make the nation strong.

Bill Ong Hing is the Founder and General Counsel of the Immigrant Legal Resource Center, and Professor of Law and Migration Studies, University of San Francisco”

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Unhappily, America has a sad history of using bogus arguments about the economy and protecting American labor to justify racist immigration acts.  Among other things, the Chinese Exclusion Act was supposed to protect the U.S. against the adverse effects of “coolie labor.”

I find it remarkable that those pushing the RASE Act are so ready to damage American families, the fabric of our society, and our economy in a futile attempt to achieve their White Nationalist vision.

PWS

08-18-17

THE ASYLUMIST — JASON DZUBOW: AS TRUMP FANS THE FLAMES OF FEAR, HATE, & DESPAIR, IMMIGRANTS & REFUGEES INSPIRE & GIVE US HOPE FOR A BETTER FUTURE!

http://www.asylumist.com/2017/08/17/in-a-time-of-hate-my-refugee-clients-give-me-hope/

Jason’s complete blog is reprinted below:

“In a Time of Hate, My Refugee Clients Give Me Hope

by JASON DZUBOW on AUGUST 17, 2017

As an ordinary citizen, it is not easy to decide the best way to confront a Nazi march. Show up to peacefully protest? That might give additional attention to the other side. Protest violently? Not only could that elevate the Nazis, it might also de-legitimize the resistance to the Nazis (even those who peacefully resist). Ignore them? That might be viewed as condoning their views. Reasonable people can differ about what to do, at least as far as the peaceful responses are concerned.

As a great American philosopher once said, “I hate Nazis.”

But when you are a public figure, especially an elected official, the decision about how to respond is clear: First, ensure safety and free speech. Second, denounce the evils of Nazism and make it plain that Nazis, Klan members, and anyone who might march side-by-side with such people are un-American, illegitimate, and unworthy of a seat at the table of public discourse.

Fortunately, the vast majority of our country’s elected leaders knew what to say in response to the Nazi march last weekend. But unfortunately, there was one important exception–our President, Donald J. Trump. To me, Mr. Trump’s contemptible silence, followed by a reluctant “denunciation” of the Nazis, followed by a denunciation of the “denunciation” is an utter disgrace. It is a green light to Nazis. It is yet another attack on common decency and on our shared national values. It is complicity with Nazism. By the President of the United States. (As an aside, one of my lawyer-friends at the Justice Department told me–perhaps half jokingly–that she wanted to post a sign in her office that reads, “Nazis are bad,” but she feared it might get her into trouble–that is where we are under Mr. Trump.)

Frankly, I am not particularly worried about the Nazis themselves. They certainly can do damage–they murdered a young woman and injured many others. But they do not have the power or support to threaten our democracy. This does not mean we should take them for granted (few would have predicted Hitler’s rise when he was sitting in prison after the Beerhall Putsch), but we should not be unduly fearful either.

On the other hand, I am very worried about our President’s behavior. His governing philosophy (perhaps we can call it, “trickle down histrionics”) is poisoning our public debate, and it weakens us domestically and internationally. Thus far, his incompetence has served as a bulwark against his malevolence, but that can only go on for so long (see, e.g., North Korea). So there is much to be concerned about.

Here, though, I want to talk about hope. Specifically, the hope that I feel from my clients: Asylum seekers, “illegals,” and other immigrants. There are several reasons my clients give me hope.

One reason is that they still believe in the American Dream. Despite all of the nastiness, mendacity, and bigotry coming from the White House, people still want to come to America. They are voting with their feet. Some endure seemingly endless waits, often times separated from their loved ones, in order to obtain legal status here. Others risk their lives to get here. They don’t do this because (as Mr. Trump suggests) they want to harm us. They do it because they want to join us. They want to be part of America. My clients and others like them represent the American ideal far better than those, like our embattled President and his racist friends, who disparage them. When I see my country through my clients’ eyes, it gives me hope.

My clients’ stories also give me hope. Most of my clients are asylum seekers. They have escaped repressive regimes or failing states. Where they come from, the government doesn’t just tweet nasty comments about its opponents, it tortures and murders them. The terrorist groups operating in my clients’ countries regularly harm and kill noncombatants, women, children, and even babies. My clients have stood against this depravity, and many of them continue to fight for democracy, justice, and human rights from our shores. My clients’ perseverance in the face of evil gives me hope.

Finally, I have hope because I see the courage of my clients, who refuse to be cowed by the hateful rhetoric of our Commander-in-Chief. Since the early days of his campaign, Mr. Trump has demonized foreigners and refugees, and after he was sworn in as President, these individuals were the first to come into his cross hairs. If he can defeat people like my clients, he can move on to new targets. But many refugees and asylum seekers have been subject to far worse treatment than Mr. Trump’s bluster, and they are ready to stand firm against his bullying. Their fortitude encourages others to stand with them. And stand with them we will. The fact that vulnerable, traumatized people are on the front lines of this fight, and that they will not surrender, gives me hope.

I have written before about the tangible benefits of our humanitarian immigration system. It demonstrates to the world that our principles–democracy, human rights, freedom, justice–are not empty platitudes. It shows that we support people who work with us and who advance the values we hold dear. When such people know that we have their backs, they will be more willing to work with us going forward. And of course, that system helps bring people to the United States whose talents and energy benefit our entire nation. Add to this list one more benefit that asylees and refugees bring to our nation in this dark time–hope.”

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Thanks, Jason!

The irony and extreme contrast between those hollowly claiming to “Make America Great” and those who are actually “making America great” is simply stunning.

PWS

08-18-17

 

 

HON. JEFFREY CHASE ON WHY WE NEED AN ARTICLE I IMMIGRATION COURT!

https://www.jeffreyschase.com/blog/2017/8/17/the-need-for-an-independent-immigration-court

Jeffrey writes:

“On August 8, the Department of Justice issued a highly unusual press release that inadvertently illustrated the need for an independent Article I immigration court.  Titled “Return to Rule of Law Under Trump Administration Marked by Increase in Key Immigration Statistics,” the release proudly cited a 30 percent increase in the number of people ordered deported by immigration judges since the present administration took office (which of course corresponded with a marked decrease in the number of individuals granted relief and allowed to remain legally in the country).  The press release was posted on the public website of  the Executive Office for Immigration Review, the agency which includes both the immigration courts and the Board of Immigration Appeals.

On his blog immigrationcourtside.com, former BIA chairman Paul Schmidt drew some apt analogies, imagining what the reaction would be if the Supreme Court were to proudly announce that in support of Donald Trump’s deregulaton initiative, it had struck down 30 percent more regulations since he took office?  Or if a circuit court released a self-congratulatory statement that in support of the president’s war on drugs, it issued 30 percent more convictions and 40 percent longer sentences for drug crimes than under the previous administration?  Such statements would be unthinkable, and would trigger a strong backlash.  But not so for the August 8 announcement.  Fortunately, EOIR itself did not sink to issuing such a statement.  Unfortunately, EOIR felt the need to post the release in a prominent place on its website (either because it was instructed to do so, or was afraid not to).

The National Association of Immigration Judges (the immigration judges’ union) has for years made a strong argument for the creation of an independent Article I immigration court.  The 334 immigration judges are the only judges among the Department of Justice’s 112,000 total employees.  The concept of the judges’ independence and political neutrality never really took within DOJ.  When both the former INS and EOIR were housed within Justice (prior to the former being moved to the Department of Homeland Security after the reorganization that followed the 9/11 tragedy), INS higher-ups would make complaints about immigration judges known to the Deputy Attorney General’s office, which oversaw EOIR’s director, a process that would be highly improper in other courts.  When 1996 legislation provided immigration judges with contempt power over attorneys appearing in their courts, INS managed to indefinitely block implementing DOJ regulations because the agency did not wish to afford immigration judges such authority over their fellow DOJ attorneys within INS; as a result, the judges still lack such contempt power 21 years later.

. . . .

It is a cornerstone of our justice system that judges not only be impartial, but that they also avoid the appearance of impartiality.  28 U.S.C. § 455(a) requires federal judges to recuse themselves in any proceeding in which their impartiality might reasonably be questioned.  How can the impartiality of an immigration judge not be questioned when the agency that employs him or her releases statements celebrating the increase in the percentage of cases in which deportations are ordered as a “return to the rule of law?”

The partisan pronouncement raises questions not only as to the independence of the judges in their decision making.  It also casts a cloud over hiring and policy decisions by EOIR’s management.  In hiring new judges and Board members, will EOIR’s higher-ups feel pressured to choose candidates likely to have higher deportation rates?  Are they likely to implement policies aimed at increasing fairness or expediency?  As an example, let’s use what Paul Schmidt aptly refers to as “aimless docket reshuffling,” in which immigration judges are detailed away from their home courts to hear cases elsewhere.  Of course, this means that the individuals scheduled for hearing in the home court (who have likely been waiting two years for their hearing) need to have their cases adjourned due to the judge’s absence.  I have no information as to what factors go into making these detailing decisions.  But hypothetically, if EOIR’s managers feel pressure to produce more deportations, might they consider shifting judges in high-volume courts in large cities such as New York or Los Angeles, where the respondents are likely to be represented by counsel, have adequate time to prepare and gather evidence, and have access to call witnesses (including experts),  to instead hear cases of detained, recently-arrived respondents in remote areas where they have less access to counsel, community support, evidence, or witnesses?  In which of those two scenarios might the judge “accomplish” more deportations in the same amount of time?

There is some irony in the use of the term “rule of law” in the Aug. 8 press release, because rules of law take a great deal of time to develop properly.  In a 2013 article titled “Let Judges Be Judges,” , Hon. Dana Leigh Marks, the president of the National Association of Immigration Judges, stated that allowing “immigration judges to consider the individual circumstances unique to each case” in an independent Article I court setting “would create a fine-tuned tool…instead of the blunt instrument that now exists.”  A “fine-tuned tool” is needed, as many of the claims presently being heard involve very complex legal issues.  Many cases involve those fleeing an epic humanitarian crisis in Central America.  Case law continues to develop, as leading asylum attorneys and scholars have spent years crafting nuanced theories to clarify the nexus between the serious harm suffered or feared and one of the five protected grounds required for a grant of asylum.  In other claims from countries such as Albania or the former Soviet republics, highly detailed testimony from country condition experts is required to educate judges as to specific dangers not mentioned in the generalized State Department country reports.  This type of painstaking development of the record cannot be accomplished under conditions termed in a 2009 report of the Appleseed Foundation as “assembly line injustice.”

In summary, a Department of Justice which chooses to publicly celebrate accelerated hearings resulting in orders of deportation as a positive development cannot oversee an immigration court system which aspires to provide “due process and fair treatment for all parties involved.”

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Head over to Jeffrey’s great blog at the above link for the complete story.

Jeff Sessions seldom, if ever, has a kind word to say about migrants of any type. He has been the enthusiastic “point man” for the President’s xenophobic, White Nationalist immigration enforcement program. He has promoted and repeated false narratives about immigrants and crime. The idea of him running the U.S. Immigration Court system charged with proving fair hearings to migrants is preposterous on it’s face.

And, it’s not just Sessions. All Attorneys General have the actual or apparent conflict of interest described by Jeffrey Chase. Sessions is just one of the most outrageous examples to date. If an Immigration Judge made the type of statement set forth  in the DOJ press release, he or she would undoubtedly be charged with ethical violations. And, let’s not forget that under the bizarre structure of the U.S. Immigration Courts, the Attorney General has authority to “certify” any individual case to him or her self and substitute his decision for that of the Immigration Judge and the BIA.

PWS

08-16-17

 

BREAKING: IN MEMORIUM: HON. JUAN P. OSUNA, LEGENDARY IMMIGRATION FIGURE, DIES SUDDENLY — Was Chairman of BIA, Director of EOIR, High-Ranking DOJ Executive, Editor, Professor — Will Be Remembered As Kind, Gentle, Scholarly, Dedicated!

I have just learned that my friend and former colleague Juan P. Osuna tragically died suddenly of a heart attack last night. Until May of this year, Juan was the Director of EOIR. But, he was much more than that to those of us in the immigration world.

I first met Juan when he was an Editor for Interpreter Releases, the leading weekly immigration newsletter, working with one of my mentors, the late legendary Maurice A. Roberts. Juan later succeeded Maury as Editor-In-Chief and rose to a major editorial position within the West Publishing legal empire. He was serving in that position when I recommended him for a position as an Appellate Immigration Judge/Board Member of the Board of Immigration Appeals during my tenure as BIA Chair. Juan was appointed to that position by Attorney General Janet Reno in 2000.

While serving together on the BIA, Juan and I often joined forces in seeking full due process and legal protections for migrants. Sometimes, our voices were heard together in dissent. In one of those cases, Matter of J-E-, 23 I&N Dec. 291 (BIA 2002) we joined in finding that our colleagues in the majority were interpreting the Convention Against Torture (“CAT”) in an overly restrictive way. In another, Matter of Andazola, 23 I&N Dec. 219 (BIA 2003), we joined in finding that our colleagues in the majority had significantly undervalued the Immigration Judge’s careful findings of “exceptional and extremely unusual hardship” to U.S. citizen children.

Following my reassignment from the BIA to the Arlington Immigration Court, Juan became the Vice Chair and eventually the Chair of the BIA after the departure of Lori Scialabba. But, Juan’s meteoric rise through the DOJ hierarchy was by no means over. In 2009, Attorney General Eric Holder appointed Juan to the position of Deputy Assistant Attorney General for the Civil Division with responsibility for the Office of Immigration Litigation. Later, he was promoted to Associate Deputy Attorney General with responsibility for the Department’s entire “immigration portfolio.”

Not surprisingly, following the departure of EOIR Director Kevin Ohlson, Attorney General Eric Holder named Juan Director of EOIR. In that position, Juan shepherded the U.S. Immigration Courts through some of the most difficult times in EOIR history, involving astronomically increasing caseloads and resource shortages. Throughout all of it, Juan remained calm, cool, and collected.

He was a frequent public speaker and testified before Congress on a number of occasions. He was known for his honesty and “straight answers.” Indeed, in one memorable television interview, Juan confessed that the Immigration Court system was “broken.”

One of my most vivid recollections of Juan’s sensitivity and humanity was when he occasionally stopped by the Arlington Immigration Court to “find out what’s happening at the grass roots.” After lunching with or meeting the judges, Juan invariably went to the desk of each and every staff member to ask them how their jobs were going and to thank them for their dedicated service. He understood that “the ship goes nowhere without a good crew.”

Shortly before I retired, Juan called me up and said he wanted to come over for lunch. We shared some of our “old times” at the BIA, including the day I called to tell him that he was Attorney General Janet Reno’s choice for a Board Member. We also batted around some ideas for Immigration Court reform and enhancing due process.

Back in my chambers, I thought somewhat wistfully that it was too bad that we hadn’t had an opportunity to talk more since my departure from the BIA. Little did I suspect that would be the last time I saw Juan. At the time of his death, he was an Adjunct Professor at Georgetown Law, where I am also on the adjunct faculty. Ironically, Juan took over the “Refugee Law and Policy” course that I taught from 2012-14.

Juan will always be remembered as a gentleman, a scholar, and an executive who appreciated the role that “ordinary folks” — be they migrants, staff, interpreters, or guards, — play in building and sustaining a successful justice system. He will be missed as a friend and a leader in the immigration world.

My thoughts and prayers go out to Juan’s wife, Wendy Young, President of Kids In Need of Defense (“KIND”), and the rest of Juan’s family and many friends. Rest in peace, my friend, colleague, and champion of due process for all!

PWS

08-16-17

 

 

U.S. IMMIGRATION COURTS: LATEST JUDICIAL APPOINTMENTS SHOW MORE DIVERSE BACKGROUNDS — MORE SUPERVISORY JUDGES ASSIGNED TO LOCAL COURTS!

In what should be a positive development for all who care about the future of our U.S. Immigration Courts, Attorney General Jeff Sessions’s latest group of nine new U.S. Immigaration Judge appointees includes seven new judges with “outside” experience in either defending migrants or judging in other systems, or both.

Judge Katherine L. Hansen, Bloomington, MN, most recently served as a senior staff attorney at Iowa Legal Aid and also spent 12 years as a Michigan State District Court Judge.

Judge Jose A. Sanchez, Boston, spent the last 22 years as an Associate Justice for the Trial Court of Massachusetts.

Judge Christopher R. Seppanen, Cleveland, was a Supervisory Administrative Law Judge in Michigan for the past 15 years.

Judge Charlotte D. Brown, Harlingen, most recently spent seven years as a North Carolina State District Court Judge.

Judge Charles R. Conway, New York City, spent the last two years as a Supervising Attorney in the Immigration Unit of the Legal Aid Society in New York. Prior to that, he had his own immigration law practice and also was an Immigration Staff Attorney at Neighborhood Defender Services of Harlem.

Judge Maria E. Navarro, New York City, had been an attorney with the  Legal Aid Society in New York for 21 years, the last nine years as a Supervising Attorney and ultimately Acting Attorney-in-Charge.

Judge Charles M. McCullough, San Antonio, served as the Senior Assistant Chief Industrial Appeals Judge in Washington State for the past 15 years.

Judge Patrick O’Brien, San Francisco, was an Assistant Chief Counsel for ICE in San Francisco for the past eight years.

Judge Joseph Y. Park, San Francisco, was the Deputy Chief Counsel for ICE in San Francisco for the past six years.

Additionally, EOIR announced that Judge Daniel Weiss has been appointed Assistant Chief Immigration Judge (“ACIJ”) in Dallas and Judge Clay Martin has been appointed ACIJ in San Antonio.

I have been a frequent critic of Sessions, his “over the top” rhetoric and actions on immigration enforcement, his undermining of important civil rights protections, and his previous record of appointing Immigration Judges solely from the ranks of government attorneys, almost all former prosecutors.

But, I have to say that this is one of the most diverse and well-balanced group of appointments that I have seen coming from an Attorney General in many years, including, for the most part, the Obama Administration.

I believe that having judges who have served in other systems and who have both defended and prosecuted migrants in the mix should generate some new perspectives and, hopefully, some practical, realistic solutions to the many problems facing the Immigration Courts on a daily basis.

I know that as a judge I always appreciated getting insights from my colleagues who came from different backgrounds and had different experiences and often different views on how to approach an issue. Sometimes, I tried out several approaches before finding the one that worked best in my courtroom.

My colleagues also frequently consulted me behind the scenes. I was happy to share perspectives I had gained as an appellate judge, private practitioner, Senior Executive, and professor. Indeed discussing legal and administrative issues “in chambers” with my colleagues and often our wonderful JLCs and legal interns was one of the highlights of the job, and certainly helped relieve the otherwise unrelenting stress of having people’s lives and futures in your hands continually.  (We tried, not always successfully, to steer our daily lunch discussions away from “work” to topics like sports, politics, history, theology, family, travel, etc.)

I also applaud the decision to place more ACIJs in the local courts rather than at HQ in Falls Church. Hopefully, they will handle at least partial dockets to have a better idea of the reality facing their colleagues.

A continuous complaint from sitting Immigration Judges and Court Administrators has been OCIJ’s attempt to micromanage and solve problems “from afar.” Many times we thought or said to ourselves “if they were here doing cases they wouldn’t have to ask that question.” Over many years in many different legal positions, I have found that “working supervisors” who are actively involved in the substantive work of the office, and accessible to their colleagues, do far better in solving problems, and achieving respect and cooperation from their colleagues than those who remain “above the fray.” A leader, particularly among judges, is more likely to develop a timely and effective solution to a problem if she or he faces that very problem on a daily basis and gets constant input from colleagues.

Of course, as with most things, “the devil is in the details.” It depends on what the local ACIJ’s mission is. If he or she is there to work collectively with colleagues, staff, the local bar, and ICE to solve problems, improve due process, and serve as a resource for other courts and for OCIJ in developing sound nationwide policies that support and improve due process, that would be a very positive development. On the other hand, if the ACIJ is an “emissary from on high” sent to crack the whip and enforce unrealistic or inappropriate policies developed at the DOJ or OCCIJ without appropriate input from Immigration Judges and local stakeholders, that’s going to be a nasty failure that will actually make an already bad situation even worse.

The latest appointments list could well be a fluke. Some have suggested that it is just the function of most of the “outside” appointments in the “pipeline” being tied up with (unnecessarily) long background clearances which finally came through in group. If so, the appointments could return to the “insiders only” practice.

But, for the reasons I have outlined above, more diverse and balanced selections for the Immigration Judiciary would well-serve the courts, due process, and the public interest in fair and efficient hearings in U.S. Immigration Court.

By no means am I suggesting that a few outside appointments and local ACIJs can solve the dysfunction now gripping the U.S. Immigration Court system. Only an independent Article I U.S. Immigration Court can do that. But, more diverse judicial appointments and constructive local court management involving sitting judges would be small steps in the right direction.

I am republishing below the complete EOIR press release on the new appointments, giving more detailed information on their backgrounds and qualifications. Congratulations to each of the new U.S. Immigration Judges. Due Process Forever!

PWS

08-16-17

U.S. Department of Justice

Executive Office for Immigration Review

Office of the Director
5107 Leesburg Pike, Suite 2600 Falls Church, Virginia 22041

Contact: Office of Communications and Legislative Affairs

Phone: 703-305-0289 Fax: 703-605-0365 PAO.EOIR@usdoj.gov @DOJ_EOIR

www.justice.gov/eoir

Aug. 14, 2017

Executive Office for Immigration Review Swears in Nine Immigration Judges

FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) has invested nine immigration judges to fill positions in Bloomington, Minn.; Boston; Cleveland; Harlingen, Texas; New York; San Antonio; and San Francisco.

The nine new immigration judges were selected from all qualified U.S. citizen applicants. Each must demonstrate appropriate temperament to serve as an immigration judge, and three of the following: knowledge of immigration laws and procedures, substantial litigation experience, experience handling complex legal issues, experience conducting administrative hearings, and knowledge of judicial practices and procedures.

Last Friday’s investiture brings the size of the immigration corps to 334. EOIR is continuing to employ its newly streamlined hiring process to reach its fully authorized level of 384 immigration judges. As the agency increases the number of immigration judges hearing cases, it is also expanding the number of supervisory immigration judges in the field. On Aug. 20, Daniel Weiss and Clay Martin will begin work as assistant chief immigration judges in Dallas and San Antonio, respectively.

Immigration judges preside over formal, quasi-judicial immigration court hearings and make decisions regarding the removability of aliens whom the Department of Homeland Security charges with violations of U.S. immigration law.

Biographical information follows.

Katherine L. Hansen, Immigration Judge, Bloomington Immigration Court

Attorney General Jeff Sessions appointed Katherine L. Hansen to begin hearing cases in August 2017. Judge Hansen earned a Bachelor of Arts degree in 1986 from Morningside College, a Juris Doctor in 1991 from Drake University School of Law, and a Master of Laws degree in 1997 from Wayne State University School of Law. From 2016 to 2017, she served as a senior staff attorney for Iowa Legal Aid. From 2004 to 2016, she served as a district court judge for Michigan’s 36th District Court, in Detroit, Mich. From 2000 to 2004, she served as an

Office of Communications and Legislative Affairs

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EOIR Swears in Nine Immigration Judges Page 2

assistant attorney general for the State of Michigan. From 1993 to 1999, she served as a member of the Michigan Employment Security Board of Review for the State of Michigan, in Lansing, Mich. Judge Hansen is a member of the Iowa and Michigan State Bars.

Jose A. Sanchez, Immigration Judge, Boston Immigration Court

Attorney General Jeff Sessions appointed Jose A. Sanchez to begin hearing cases in August 2017. Judge Sanchez earned a Bachelor of Arts degree in 1984 from Fordham University at Lincoln Center and a Juris Doctor in 1987 from Northeastern University School of Law. From 1995 to 2017, he served as an associate justice of the trial court for the Trial Court of Massachusetts, in Lawrence, Mass. From 1987 to 1995, he served as a trial attorney for the Committee for Public Counsel Services, in Cambridge, Mass. From 1976 to 1981, he served as an air traffic controller for the Federal Aviation Administration, in New York, N.Y. Judge Sanchez is a member of the Massachusetts State Bar.

Christopher R. Seppanen, Immigration Judge, Cleveland Immigration Court

Attorney General Jeff Sessions appointed Christopher R. Seppanen to begin hearing cases in August 2017. Judge Seppanen earned a Bachelor of Arts degree in 1990 from Alma College and a Juris Doctor in 1993 from the University of Kentucky College of Law. From 2002 to 2017, he worked for the State of Michigan, in Lansing, Mich., serving as a supervisory administrative law judge, 2002 to 2012; a deputy chief administrative law judge, 2012 to 2014; and a chief administrative law judge, 2014 to 2017. From 1997 to 2002, he served as an administrative law judge for the State of Michigan, in Manistee, Mich. From 1996 to 1997, he served as a trial attorney for the Office of Public Advocacy, in Alpena, Mich. Judge Seppanen is a member of the Michigan State Bar.

Charlotte D. Brown, Immigration Judge, Harlingen Immigration Court

Attorney General Jeff Sessions appointed Charlotte D. Brown to begin hearing cases in August 2017. Judge Brown earned a Bachelor of Arts degree in 1979 from The City University of New York, York College, a Juris Doctor in 1990 from St. John’s University School of Law, and a Master of Divinity in 2001 from Hood Theological Seminary. From 2009 to 2016, she served as a district court judge for North Carolina’s 26th District Court, in Charlotte, N.C. From 2001 to 2008 and previously 1994 to 1997, she was an attorney at Charlotte D. Brown, in Rockingham, N.C. From 1998 to 2001, she was an executive assistant to the president and general counsel at Livingston College, in Salisbury, N.C. From 1991 to 1992, she served as a public defender at the Public Defender’s Office, in Fayetteville, N.C. From 1990 to 1991, she was an associate attorney at Stroock, Stroock & Lavan, in New York, N.Y. Judge Brown is a member of the Connecticut, New York, and North Carolina State Bars.

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Office of Communications and Legislative Affairs

EOIR Swears in Nine Immigration Judges Page 3

Charles R. Conroy, Immigration Judge, New York City Immigration Court

Attorney General Jeff Sessions appointed Charles R. Conroy to begin hearing cases in August 2017. Judge Conroy earned a Bachelor of Arts degree in 1993 from St. Michael’s College and a Juris Doctor in 1999 from Vermont Law School. From 2016 to 2017 he was a supervising attorney in the Immigration Law Unit of The Legal Aid Society, in New York, N.Y. From 2013 to 2016, he was an immigration attorney at the Law Offices of Charles R. Conroy, PLLC, in New York. From 2012 to 2013, he was an immigration staff attorney at the Neighborhood Defender Services of Harlem, also in New York. From 2006 to 2012, he was an immigration staff attorney at the Legal Aid Society of the Orange County Bar Association Inc., in Orlando, Fla. From 2005 to 2006, he was a securities attorney in the Corporate Law Department of AEGON USA Inc., in St. Petersburg, Fla. In 2004, he was an associate attorney at Tabas Freedman, in Miami, Fla. From 2001 to 2004, he was a securities enforcement attorney at Vermont Department of Financial Regulation, in Montpelier, Vt. From 2000 to 2001, he was an associate attorney at Wick and Maddocks P.C., in Burlington, Vt. From 2008 to 2011, he was an adjunct professor of law at the Dwayne O. Andreas School of Law, Barry University, in Orlando. Judge Conroy is a member of the Florida, New York, and Vermont State Bars, and the District of Columbia Bar.

Maria E. Navarro, Immigration Judge, New York City Immigration Court

Attorney General Jeff Sessions appointed Maria E. Navarro to begin hearing cases in August 2017. Judge Navarro earned a Bachelor of Arts degree in 1985 from Fordham University and a Juris Doctor in 1992 from New York University School of Law. From 1996 to 2017, she worked at The Legal Aid Society, in New York, N.Y., serving as a staff attorney, 1996 to 2008; a supervising attorney, 2008 to 2016; and an acting attorney-in-charge, 2016 to 2017. From 2008 to 2016, she was a supervising attorney at The Legal Aid Society. From 1994 to 1996, she was a staff attorney at Brooklyn Legal Services, Corporation B, in Brooklyn, N.Y. From 1992 to 1994, she was a tax associate at Coopers & Lybrand, in New York, N.Y. From 1996 to 2016, she was an adjunct professor at Columbia Law School. Judge Navarro is a member of the New York State Bar.

Charles M. McCullough, Immigration Judge, San Antonio Immigration Court

Attorney General Jeff Sessions appointed Charles M. McCullough to begin hearing cases in August 2017. Judge McCullough earned a Bachelor of Arts degree in 1982 from the College of the Holy Cross and a Juris Doctor in 1985 from the Gonzaga University School of Law. From 1991 to 2017 he worked for the Washington State Board of Industrial Insurance Appeals, in Olympia, Wash., serving as a hearings industrial appeal judge, 1991 to 1992; a mediation and review judge, 1992 to 1998; a review assistant chief industrial appeals judge, 1998 to 2002; and a senior assistant chief industrial appeals judge, 2002 to 2017. From 1988 to 1991, he served as an assistant attorney general for the Washington State Attorney General’s Office, in Tacoma, Wash. Judge McCullough is a member of the Washington State Bar.

Office of Communications and Legislative Affairs

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EOIR Swears in Nine Immigration Judges Page 4

Patrick S. O’Brien, Immigration Judge, San Francisco Immigration Court

Attorney General Jeff Sessions appointed Patrick S. O’Brien to begin hearing cases in August 2017. Judge O’Brien earned a Bachelor of Science degree in 1995 from California Polytechnic State University, San Luis Obispo and a Juris Doctor in 2000 from University of California, Hastings College of the Law. From 2009 to 2017, he served as an assistant chief counsel for the Office of Chief Counsel, Immigration and Customs Enforcement, Department of Homeland Security, in San Francisco. From 2001 to 2017, he worked for the U.S. Army Judge

Advocate General’s Corp, entering as a student in 2001; serving as a legal assistance attorney in Korea, 2002 to 2003; trial counsel in Fort Lewis, Wash., and Iraq, 2003 to 2004; as trial defense counsel in Fort Lewis and Afghanistan, 2004 to 2007; special assistant U.S. attorney in Fort Lewis, 2007 to 2008; senior defense counsel, U.S. Army Reserve, 2009 to 2014; a brigade judge advocate, U.S. Army Reserve, 2014 to 2016; and currently as an adjunct professor of international and operational law. Judge O’Brien is a member of the California State Bar.

Joseph Y. Park, Immigration Judge, San Francisco Immigration Court

Attorney General Jeff Sessions appointed Joseph Y. Park to begin hearing cases in August 2017. Judge Park earned a Bachelor of Arts degree in 1994 from Amherst College and a Juris Doctor in 2002 from the University of Washington School of Law. From 2003 to 2017, he worked for Immigration and Customs Enforcement, Department of Homeland Security, in San Francisco, serving as an assistant chief counsel, 2003 to 2007; a senior attorney, 2007 to 2011; and a deputy chief counsel, Office of Chief Counsel, 2011 to 2017. From 2002 to 2003, he served as an assistant district counsel for the former Immigration and Naturalization Service, Department of Justice, in San Francisco, entering on duty through the Attorney General’s Honors Program. Judge Park is a member of the California State Bar.

— EOIR —

Office of Communications and Legislative Affairs

NEW FROM TAL KOPAN AT CNN: DACA ON THE ROPES — “Only Congress can enact a permanent solution to the DACA situation!”

http://www.cnn.com/2017/08/15/politics/daca-anniversary-peril/index.html

Tal reports:

“Washington (CNN)Tuesday marks the fifth anniversary of a program that protects young undocumented immigrants from deportation — but supporters worry this one could be its last.

The Deferred Action for Childhood Arrivals program, or DACA, was implemented in 2012 under President Barack Obama, and President Donald Trump’s administration has continued running despite heated rhetoric against it from Trump on the campaign trail.
But DACA has arguably never been on shakier ground, and advocates for the program are desperately trying to protect it, including with a planned march Tuesday on the White House.
Nearly 800,000 undocumented immigrants have benefited from DACA, which protects individuals who were brought to the US illegally as children from deportation, and offers them the ability to work, study and drive legally. Applicants must meet certain criteria, pass a background check and maintain a clean record.
But despite the fact that the administration has continued to issue permits, concerns are increasing that the program could be ended.
“DACA is under grave threat,” Nevada Democratic Sen. Catherine Cortez Masto said on a conference call with reporters Monday.
Ten state attorneys general, led by Texas Attorney General Ken Paxton, have issued an ultimatum to the Trump administration — sunset DACA by September 5, or we’ll challenge it in court. The attorneys general have threatened to petition a court that’s considering a similar but separate Obama administration deferred action program, for parents, to also weigh the legality of DACA.
Experts believe that given the makeup of the court hearing the case, and its previous ruling against the parents program, the judges involved would likely strike down DACA as well.
If the court allows arguments against DACA, the Justice Department would be forced to decide whether it will defend the program. While Trump has recently spoken about how sympathetic he is to the “Dreamers” who receive DACA, saying the choice is “very, very hard to make,” he campaigned on a pledge to immediately rescind it. And the US attorney general, former Sen. Jeff Sessions, has been a chief opponent of the program.
The White House offered a cryptic statement on the program’s future, expressing only concern with illegal immigration.
“The President’s priority remains protecting the jobs, wages and security of American workers, families and communities — including the millions of Hispanic and African American workers disadvantaged by illegal immigration,” an administration official said.
On the call with reporters and a DACA recipient, Masto and California Democratic Sen. Kamala Harris extolled its virtues, citing estimates that the US economy would lose hundreds of billions of dollars without the contributions of DACA recipients.
“This is not just about what is morally right, this is not only a point about what is right in terms of fighting for the ideals of our country,” Harris said. “This is also right and smart in terms of public benefits.”
Both are co-sponsors of one bipartisan proposal to make the program permanent in Congress, the Dream Act, which also has three Republican co-sponsors. It’s one of four proposed bills that would codify DACA if the administration were to rescind it or the courts were to strike it down.
The Department of Justice did not respond to a CNN request for comment.
US Citizenship and Immigration Services, the division of the Department of Homeland Security, said the program remains under review.
“The Department of Homeland Security’s stance remains the same — the future of the DACA program continues to be under review with the administration,” said USCIS press secretary Gillian Christensen. “The President has remarked on the need to handle DACA with compassion and with heart. As a matter of policy, we do not comment on pending litigation, but we have said before only Congress can enact a permanent solution to the DACA situation.”
**********************************************************
I think the last statement in Tal’s article, from USCIS, hits the nail on the head. Congress has to come up with a solution to this issue or there will be chaos. Imagine another 800,000 cases of young people thrown into the U.S. Immigration Courts on top of the 610,000 cases already there! It’s Jason Dzubow’s vision of “Trump’s 100 year deportation plan” in action. http://immigrationcourtside.com/2017/08/14/jason-dzubow-in-the-asylumist-trumps-101-year-plan-for-removals-malevolence-tempered-by-incompetence/
As Nolan Rappaport has pointed out, it’s unlikely that any of the pending bills, in their present forms, will attract enough GOP support to be enacted. http://immigrationcourtside.com/2017/08/07/n-rappaport-in-the-hill-dems-dreamer-bill-offers-false-hope/
But perhaps Democrats and some willing Republicans can work on a compromise legislative solution. Otherwise, the results aren’t likely to be pretty — for the Dreamers or for our country’s future.
PWS
08-15-17

VOX: THINK TRUMP IS GOING TO KEEP HIS PROMISE TO CRACK DOWN ON WHITE SUPREMACISTS? — NOT LIKELY, THEY ARE A KEY PART OF HIS “BASE!”

https://www.vox.com/policy-and-politics/2017/8/14/16144598/trump-white-terrorism

Dara Lind writes:

“The president of the United States finally condemned white supremacist violence in Charlottesville on Monday, two days after an initial statement that blamed “both sides” for violence largely instigated by far-right activists (including a car attack on counterprotesters that killed one person and injured 19).

But the only part of his remarks that appeared to promise that he was devoting not just words, but action, to the problem of right-wing extremism in America — “We will spare no resource in fighting so that every American child can grow up free from violence and fear” — was actually the most hollow.

On Saturday, too, Trump promised to get to the root of the problem: “We want to get the situation straightened out in Charlottesville, and we want to study it. And we want to see what we’re doing wrong as a country where things like this can happen.” The problem is that his administration has already indicated that it thinks it knows the answers to these problems. It’s cut funding for outreach to counter white supremacism, while pushing punitive “law and order” responses to civil unrest.

Trump’s willingness to explicitly say that white supremacism is bad (even if it’s only offered in response to criticism) is worth at least something — it’s a nod in the direction that white supremacism is an ideology that ought to be ostracized. But his administration’s actions threaten to undermine any value in countering white supremacism that Trump’s rhetoric might have had.

The Trump administration has systematically rejected efforts to counter right-wing violence

Barely a week after President Trump was inaugurated, rumors began to swirl that he was going to change the name of the federal “Countering Violent Extremism” task force, located in the Department of Homeland Security, to “Countering Islamic Extremism” — and that the task force would accordingly “no longer target groups such as white supremacists who have also carried out bombings and shootings in the United States.”

The task force’s name hasn’t changed. But its function has. After a review of grants provided by the task force, the Trump administration preserved most of the grants (which involved Islamic communities) — but killed a $400,000 grant to Life After Hate, a group that attempts to “deradicalize” young men drawn to white supremacism.

It’s not that the Trump administration didn’t have evidence that right-wing extremism was a potential problem for public safety. According to Foreign Policy, the Department of Homeland Security and the FBI issued a report on May 10 called “White Supremacist Extremism Poses Persistent Threat of Lethal Violence,” which noted that white supremacists “were responsible for 49 homicides in 26 attacks from 2000 to 2016 … more than any other domestic extremist movement.”

But among conservatives skeptical of “identity politics,” there’s been a longstanding resistance to any government warnings about far-right extremist groups. When the Department of Homeland Security published a report in 2009 warning of increased racist extremism after the election of President Obama, the backlash was so intense that the department had to formally retract the report.

. . . .

There’s been a similar turn away from community engagement and toward punitiveness on other fronts. Under Homeland Security Secretary John Kelly (who’s now White House chief of staff), Trump administration officials were indifferent or hostile to concerns that aggressive immigration enforcement might be discouraging victims of crime from reporting to police. Under Attorney General Jeff Sessions, the Department of Justice has stopped supporting legal “consent decrees” between police departments and local governments to rebuild public trust, while Sessions himself has advocated for a return to maximal punitiveness in criminal punishment and explained that African-American communities need to do a better job of trusting police to protect them.

In both his initial statement Saturday and his remarks Monday, President Trump presented the violence in Charlottesville as primarily a problem of social disorder — something that more and better policing, and more public trust in policing, could solve. It’s an old theme for Trump; “law and order” has been the theme of some of his biggest public moments on the campaign trail and as president. According to the Daily Beast’s Asawin Suebsaeng, Trump was particularly insistent that his Saturday statement on Charlottesville adhere to a “law and order” theme, because he remembered it fondly from the campaign.

Trump may see “law and order” as the solution to everything because it reminds him of his electoral success. Other members of his administration see it as the solution to everything because they believe the fundamental problem is “social disorder,” not racism or white supremacism.

Trump’s willingness to criticize white supremacists by name is welcome and important. But if his administration has already decided what caused the problems in Charlottesville over the weekend, it’s hard to imagine that their attempts to “spare no expense” will get to the root of the problem — and won’t end up targeting the same nonwhite Americans and immigrants that the white nationalists themselves wish to intimidate.”

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

Read Lind’s entire article at the above link.

I also think the Lind’s observations about Jeff Sessions are “spot on.” I have read other commentators suggest that because Sessions is such a “law and order guy” he can be trusted to prosecute the Charlottesville gang to the fullest extent of the law. That might well be true in this particular case. Clearly, Sessions is someone who historically has and continues to get his jollies from throwing folks in jails of all sorts (unless he can seek the death penalty which excites him even more).

But, Sessions has spent a career on the wrong side of racial history and hung around with immigration restrictionists and White Nationalists like Bannon and Steven Miller (who actually worked for him). He has wasted no time in essentially dismantling the Civil Rights enforcement mechanisms at the DOJ and turning the resources to looking for ways that whites can use civil rights laws for their advantage and to keep blacks and other minorities in their respective places. Further, he shows neither respect for nor acknowledgement of the tremendous achievements of American migrants, both legal and undocumented. In plain terms, he has faithfully carried out key elements of Trump’s White Nationalist agenda, to the delight of white supremacists and racists. And, it’s certainly not like Sessions isn’t aware of how his actions “play” in both the white and non-white communities.

Sessions is far too compromised ever to be an “honest broker” in combating white supremacists and racial hatred in the United States. Even if he throws the Charlottesville perpetrators in jail and throws away the key, he’ll never be credible as a defender of decency, tolerance, and civil rights in the face of White Nationalism or its first cousin white supremacism.

PWS

08-14-17

JASON DZUBOW IN THE ASYLUMIST: TRUMP’S 101 YEAR PLAN FOR REMOVALS! — “Malevolence tempered by incompetence!”

http://www.asylumist.com/2017/07/27/president-trumps-101-year-deportation-plan/

Jason writes:

“Joseph Stalin and Mao Zedong had their five-year plans. Nikita Khrushchev had his seven-year plan. And now President Trump has a 101-year plan. That’s how long it will take to deport the country’s 11 million undocumented residents if current trends continue.

Happy Birthday! Now, get the hell out of my country!

The most recent statistics on case completions in Immigration Court show that the Trump Administration has issued an average of 8,996 removal (deportation) orders per month between February and June 2017 (and 11,000,000 divided by 8,996 cases/month = 1,222.8 months, or 101.9 years). That’s up from 6,913 during the same period last year, but still well-below the peak period during the early days of the Obama Administration, when courts were issuing 13,500 removal orders each month.

Of course, the Trump Administration has indicated that it wants to ramp up deportations, and to that end, the Executive Office for Immigration Review or EOIR–the office that oversees the nation’s Immigration Courts–plans to hire more Immigration Judges (“IJs”). Indeed, Jefferson Beauregard Sessions, the Attorney General (at least for now) announced that EOIR would hire 50 more judges this year and 75 next year.

Assuming EOIR can find 125 new IJs, and also assuming that no currently-serving judges retire (a big assumption given that something like 50% of our country’s IJs are eligible to retire), then EOIR will go from 250 IJs to 375. So instead of 101 years to deport the nation’s 11 million undocumented residents, it will only take 68 years (assuming that no new people enter the U.S. illegally or overstay their visas, and assuming my math is correct–more big assumptions).

But frankly, I’m doubtful that 68 years–or even 101 years–is realistic. It’s partly that more people are entering the population of “illegals” all the time, and so even as the government chips away at the 11,000,000 figure, more people are joining that club, so to speak. Worse, from the federal government’s point of view, there is not enough of a national consensus to deport so many people, and there is significant legal resistance to Mr. Trump’s immigration agenda.

In addition to all this, there is the Trump Administration’s modus operandi, which is best characterized as malevolence tempered by incompetence. One statistic buried in the recent deportation numbers illustrates this point. In March 2017, judges issued 10,110 removal orders. A few months later, in June, judges issued 8,919 removal orders.

This means that the number of deportation orders dropped by 1,191 or about 11.8%. How can this be? In a word: Incompetence (I suppose if I wanted to be more generous—which I don’t—I could say, Inexperience). The Trump Administration has no idea how to run the government and their failure in the immigration realm is but one example.

There are at least a couple ways the Administration’s incompetence has manifested itself at EOIR.

One is in the distribution of judges. It makes sense to send IJs where they are needed. But that’s not exactly what is happening. Maybe it’s just opening night jitters for the new leadership at EOIR. Maybe they’ll find their feet and get organized. But so far, it seems EOIR is sending judges to the border, where they are underutilized. While this may have the appearance of action (which may be good enough for this Administration), the effect—as revealed in the statistical data—is that fewer people are actually being deported.

As I wrote previously, the new Acting Director of EOIR has essentially no management experience, and it’s still unclear whether he is receiving the support he needs, or whether his leadership team has the institutional memory to navigate the EOIR bureaucracy. Perhaps this is part of the reason for the inefficient use of judicial resources.

Another reason may be that shifting judges around is not as easy as moving pieces on a chess board. The IJs have families, homes, and ties to their communities. Not to mention a union to protect them (or try to protect them) from management. And it doesn’t help that many Immigration Courts are located in places that you wouldn’t really want to live, if you had a choice. So getting judges to where you need them, and keeping them there for long enough to make a difference, is not so easy.

A second way the Trump Administration has sabotaged itself is related to prosecutorial discretion or PD. In the pre-Trump era, DHS attorneys (the “prosecutors” in Immigration Court) had discretion to administratively close cases that were not a priority. This allowed DHS to focus on people who they wanted to deport: Criminals, human rights abusers, people perceived as a threat to national security. In other words, “Bad Hombres.” Now, PD is essentially gone. By the end of the Obama Administration, 2,400 cases per month were being closed through PD. Since President Trump came to office, the average is less than 100 PD cases per month. The result was predictable: DHS can’t prioritize cases and IJs are having a harder time managing their dockets. In essence, if everyone is a deportation priority, no one is a deportation priority.

Perhaps the Trump Administration hopes to “fix” these problems by making it easier to deport people. The Administration has floated the idea of reducing due process protections for non-citizens. Specifically, they are considering expanding the use of expedited removal, which is a way to bypass Immigration Courts for certain aliens who have been in the U.S. for less than 90 days. But most of the 11 million undocumented immigrants have been here much longer than that, and so they would not be affected. Also, expansion of expedited removal would presumably trigger legal challenges, which may make it difficult to implement.

Another “fix” is to prevent people from coming here in the first place. Build the wall. Deny visas to people overseas. Scare potential immigrants so they stay away. Illegally turn away asylum seekers at the border. Certainly, all this will reduce the number of people coming to America. But the cost will be high. Foreign tourists, students, and business people add many billions to our economy. Foreign scholars, scientists, artists, and other immigrants contribute to our country’s strength. Whether the U.S. is willing to forfeit the benefits of the global economy in order to restrict some people from coming or staying here unlawfully, I do not know. But the forces driving migration are powerful, and so I have real doubts that Mr. Trump’s efforts will have more than a marginal impact, especially over the long run. And even if he could stop the flow entirely, it still leaves 11 million people who are already here.

There is an obvious alternative to Mr. Trump’s plan. Instead of wasting billions of dollars, harming our economy, and ripping millions of families apart, why not move towards a broad legalization for those who are here? Focus on deporting criminals and other “bad hombres,” and leave hard-working immigrants in peace. Sadly, this is not the path we are on. And so, sometime in 2118, perhaps our country will finally say adieu to its last undocumented resident.”

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

Amen!

PWS

08-14-17

 

TRAC ANNOUNCES NEW TOOL FOR DETERMINING BEST & WORST PLACES IN THE U.S. FOR MIGRANTS TO GET REPRESENTATION!

==========================================
Transactional Records Access Clearinghouse
==========================================FOR IMMEDIATE RELEASE

Greetings. Newly obtained case-by-case court records show that depending upon the community in which the immigrant resides, the odds of obtaining representation in Immigration Court deportation proceedings vary widely. If you happen to live in Honolulu, Hawaii, the odds are over 90 percent that you will be able to find an attorney to represent you. The odds are also high if you live in Manteca, California or in Pontiac. Michigan.

However these odds drop to less than 30 percent if you reside in Roma-Los Saenz or Huntsville, Texas, or in Coral Springs-Margate, Florida, or even in Atlanta-Decatur, Georgia.

Residents of Hawaii, New Hampshire, and Mississippi head the list of states where residents are most likely to obtain representation. West Virginia is in fourth place. Kansas, South Dakota, and Georgia had the worst composite records for their residents finding representation.

But even within these states the odds differ by location. The 25 communities that ranked the highest on the odds of finding an attorney were spread across seventeen states. Three states had communities that ranked both in the top 25 as well as in the bottom 25 places in the U.S.

Few dispute the importance of having an attorney to effectively argue one’s case. Representation can also lead to a number of efficiencies in the handling of court proceedings. Now for the very first time, the public can determine the odds of obtaining representation for individuals residing in each state, county, and local community within a county, who as of the end of May 2017 had pending cases before the Immigration Court.

These findings are based upon court records that were obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. To see the full report, go to:

http://trac.syr.edu/immigration/reports/477/

To look up details on a particular community go to TRAC’s new interactive mapping application:

http://trac.syr.edu/phptools/immigration/addressrep/

In addition, many of TRAC’s free query tools – which track the court’s backlog, new DHS filings, court dispositions, the handling of juvenile cases and much more – have now been updated through June 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

****************************************************************
Thanks to Nolan Rappaport for passing this along.
Not surprisingly, many of the worst places for representation are detention locations. This supports the theory by many in the advocacy community that DHS and EOIR purposely place detention centers and so-called “Detained Courts” in particularly out of the way locations. This has the effect of minimizing representation, thus making it easier to deport more respondents more quickly. Additionally, unrepresented respondents are more likely to take advice from other detainees or otherwise be “duressed” by the conditions in detention into abandoning claims and agreeing to leave without full hearings or appeals.
PWS
08-14-17

ATTENTION RETIRED U.S. IMMIGRATION JUDGES — EOIR ANNOUNCES PLANS TO RECRUIT REHIRED ANNUITANTS FOR 58 COURT LOCATIONS!

Attached is the text of an e-mail forwarded to me by Hon. Dana Leigh Marks, President of the National Association of Immigration Judges, which has been very active in working with EOIR to tap into the resource of retired U.S. Immigration Judges:

From: Swanwick, Daniel (EOIR)
Sent: Monday, August 14, 2017 3:17 PM
To: Marks, Dana (EOIR) <Dana.Marks@EOIR.USDOJ.GOV>; Slavin, Denise (EOIR) <Denise.Slavin@EOIR.USDOJ.GOV>
Cc: Mart, H. Kevin (EOIR) <H.Kevin.Mart@EOIR.USDOJ.GOV>; Scheinkman, Rena (EOIR) <Rena.Scheinkman@EOIR.USDOJ.GOV>; Maggard, Print (EOIR) <Print.Maggard@EOIR.USDOJ.GOV>; Cheng, Mary (EOIR) <Mary.Cheng@EOIR.USDOJ.GOV>; Keller, Mary Beth (EOIR) <MaryBeth.Keller@EOIR.USDOJ.GOV>
Subject: Reemployed Annuitant IJs
Dear Judges Marks and Slavin:
We are happy to report that the Agency will be posting an advertisement very soon seeking to hire retired IJs.  We know this is something NAIJ has wanted for a long time, and we are excited about the prospects of having retired IJs back on board to assist with our critical mission.  While the specifics of the advertisement are still in flux, we expect to advertise for all 58 court locations, as well as the Falls Church VTC location.  Selectees will be hired as intermittent employees, which likely will allow for flexibilities in their schedules to account for the their personal preferences, as well as to meet varying needs of the Agency.  Selectees also will be expected to be available to travel, as necessary, to meet the mission.  Retired IJs will be hired pursuant to the Reemployment of Annuitants regulation (5 C.F.R. § 837), as well as accompanying OPM guidance,available at, https://www.chcoc.gov/content/reemployment-civilian-retirees-under-national-defense-authorization-act-fiscal-year-2010-1.  To assist NAIJ and potential applicants in understanding the impact of returning as a reemployed annuitant, the Agency has prepared the attached reference sheet.
We appreciate your efforts in spreading the word to retired IJs that this advertisement will be posted shortly.  We will circle back with you when we have more specific information about when the advertisement will be posted.
Thank you,
Dan
Daniel L. Swanwick
Attorney Advisor
Office of the Chief Immigration Judge
5107 Leesburg Pike, Suite 2500
Falls Church, VA  22041
703-605-1381
***************************************************************
Sounds like a smart idea! Congrats to the NAIJ and EOIR for working together to make it happen.
PWS
08-14-17

THE GIBSON REPORT — August 14, 2017

The Gibson Report 08-14-17

Here are the “Headliners:”

“TOP UPDATES

 

ICE eService for OCC

On Monday, August 21, 2017, U.S. Immigration and Customs Enforcement (ICE) eService will become available in the ICE Office of the Principal Legal Advisor (OPLA) New York City Office of Chief Counsel (OCC) area of responsibility.  See attached brochure, which describes what can be served electronically. To request access to ICE eService, please visit eserviceregistration.ice.gov.

 

ACLU Class Action Suit Charges that Efforts to Detain and Deport Children are Based on Unfounded Gang Allegations

Attorneys representing immigrant children and their families sued Attorney General Jeff Sessions, Immigration and Customs Enforcement (ICE), and the U.S. Department of Health and Human Services’ Office of Refugee Resettlement (ORR) today for using unsubstantiated claims of gang affiliation to illegally detain teenagers in jail-like facilities in California.

 

National Conference of State Legislatures Issues Report on Increase in State Immigration Legislation

Enacted legislation related to immigration increased in the first half of 2017 by 90 percent to 133 laws compared with 70 laws in 2016. The number of resolutions increased by 22 percent to 195 from 159. Lawmakers in 47 states enacted 133 laws and 195 resolutions related to immigration, for a total of 328. An additional nine bills were vetoed by governors and 18 are pending signatures. Trends 2017: Sanctuary policies, Refugees, Education/civics, Education/in-state tuition.

 

For-Profit Private Prison Operator Tells Investors that ICE Will Improve Company Earnings

“While in the past, ICE processing centers have been primarily utilized for individuals detained for multiple illegally border crossings, increasingly, ICE intends to utilize contract bed capacity for interior enforcement.”

 

ICE Investigating Families

Catholic Charities: It seems that ICE and HSI are getting contact information for families from minors at the border and are going on a fishing expedition to get evidence of immigration and criminal violations.  The first wave is taking action against people with immigration violations–arresting and detaining household members with outstanding removal orders, issuing NTA (but also sometimes detaining) those who are undocumented. There will likely be a second wave of using smuggling inadmissibility charges to limit the relief that these immigrants can receive.  The third wave will be criminally prosecuting people on federal charges of alien smuggling (which is a crime and carries 5 years of jail time). CLINIC and NYIC  and others are tracking these encounters. You may want to report to them. This is what we are telling people contacted by HSI and ICE:

  1. Talking to them is completely voluntary.  They have not issued a subpoena and you are not obligated to go to a meeting or answer your door. They may show up at your house; you do not have to let them in.
  2. You have a right to consult with a lawyer before you talk to them. You have a right to have a lawyer present during any conversations with them.
  3. 5th Amendment.  If you talk to them, what you say can and will be used against you in a deportation case and a criminal case. They are looking for evidence to use against you.

4.      Smuggling is a crime. (We usually walk then through the statute). It includes paying for but also just arranging and planning for someone to enter the U.S.  It doesn’t matter why you did this or how sympathetic the story is. If you admit to this crime, you can be prosecuted and put in jail. It is also an immigration violation which can be used against you.”

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

Interesting that even ICE is more advanced in electronic filing than the Immigration Courts!

PWS

08-14-17

POLITICO HIGHLIGHTS LACK OF DUE PROCESS, CULTURAL AWARENESS, PROPER JUDICIAL TRAINING IN U.S. IMMIGRATION COURT’S HANDLING OF VIETNAMESE DEPORTATION CASE!

http://www.politico.com/story/2017/08/14/trump-immigration-crackdown-vietnam-241564

“Trump’s immigration crackdown hits Vietnam
Inside the case of one man who feared torture because of his Montagnard roots, but was deported last month.
By DAVID ROGERS 08/14/2017 05:39 AM EDT
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President Donald Trump’s “get tough” approach to immigration is now impacting — of all people — the Montagnard hill tribesmen who fought alongside the Green Berets in the Vietnam War.

The son of one such Montagnard veteran was deported back to Vietnam in July, a stunning move for many in the refugee community because of their history in the war and the continued evidence of political and economic mistreatment of Montagnards in Vietnam.

. . . .

The case captures all the twists and turns in the U.S. immigration system, compounded by pressure from the White House for quick results. No one emerges looking all good or all bad, but the outcome shows a remarkable blindness to history.

Nothing reveals this better, perhaps, than the exchanges between judge and defendant during a brief immigration court proceeding in June 2016, when Chuh was first ordered deported.

At that time, Chuh was being held at an ICE detention facility in Irwin County, Georgia. He had completed a state prison term for a first-time felony conviction in North Carolina related to trafficking in the synthetic drug MDMA, commonly called “ecstasy.” He remained without legal counsel and had to speak back-and forth by video conference with U.S. Immigration Court Judge William A. Cassidy of Atlanta, about 180 miles away.

POLITICO obtained a digital audiotape of the proceeding from the Justice Department under the Freedom of Information Act. The entire hearing ran just 5 minutes, 2 seconds, and the two men, Cassidy and Chuh, might have been ships passing in the night.

Chuh told Cassidy that he feared torture if he were sent back to Vietnam. But following the misguided advice of fellow detainees, he hurt his own cause by rejecting the judge’s offers to give him more time to find an attorney and seek protection.

On the other side, Cassidy, a former prosecutor, did not probe why Chuh feared torture. In fact, the judge showed no sign of knowing he was dealing with a Montagnard defendant and not the typical Vietnamese national.

Time and again, Cassidy incorrectly addressed Chuh as “A. Chuh” — not realizing that the A is Chuh’s single-letter last name and a telltale sign of his Montagnard heritage. The process was so rushed that Cassidy inadvertently told Chuh “Buenos dias” before correcting himself at the end.

Most striking, the word Montagnard is never heard in the entire tape. Its origins are French, a remnant of Vietnam’s colonial past and meaning, roughly, “people of the mountain.”

Over the years, the Montagnard label has been applied broadly to several indigenous ethnic groups concentrated in the Central Highlands and with their own distinct languages and customs. They share a hunger for greater autonomy in Vietnam and have been willing to side with outsiders, like the French and later Americans, to try to get it. At the same time, Vietnam’s dominant ethnic Kinh population has long treated the hill tribes as second-class citizens. Regardless of who has ruled Vietnam, the record is often one of suspicion and mistreatment toward the Montagnards.

The Montagnards’ strategic location in the Highlands, however, has long made them an asset in times of war. And beginning early in the 1960s, the Central Intelligence Agency and Green Berets recruited tribesmen to collect intelligence and disrupt enemy supply lines.

Chuh’s 71-year-old father, Tony Ngiu, assisted in this U.S. effort, but paid dearly later when he was sentenced to nine years in reeducation camps and hard labor by the victorious North. He was able to come to the U.S. in 1998 with much of his family, including Chuh, then a boy of about 13.

Like many Montagnards, he settled in North Carolina, which is also home to military installations used by the Green Berets, more formally known as U.S. Army Special Forces. But because Chuh was 18 by the time his father became a full citizen, he did not derive automatic citizenship himself.

“I am very, very sad,” Ngiu said. “I want them to send my son home so he can take care of his children.”

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

Read Rogers’s much longer full article at the link.

It’s not surprising that this case arose in the oft-criticized Atlanta Immigration Court where due process is routinely subordinated to achieving high levels of rapid removals. Unfortunately, as Jason Dzubow pointed out in a blog on The Asylumist that I previously featured, “We are all in Atlanta now!”

http://immigrationcourtside.com/2017/07/20/in-immigration-circles-the-atlanta-court-is-known-as-where-due-process-goes-to-die-will-it-be-the-new-norm-the-asylumist-jason-dzubow-says-were-all-in-atlanta-now/

Additionally, the SPLC has documented that notwithstanding earlier complaints, EOIR has done little or nothing to stop the unprofessional conduct and anti-migrant bias demonstrated by some of the U.S. Immigration Judges at the Stewart, GA Immigration Court.

http://immigrationcourtside.com/2017/08/10/normalizing-the-absurd-while-eoir-touts-its-performance-as-part-of-trumps-removal-machine-disingenuously-equating-removals-with-rule-of-law-the-ongoing-assault-on-due-process-in-us-immig/

Indeed, it appears that the Trump-Sessions group actually likes the focus on assembly-line removals without much regard for fairness or due process that they have seen coming out of the Atlanta Court. After all, it produces high numbers of final orders of removal which, according to the latest EOIR press release, has replaced guaranteeing fairness and due process as the objective of the U.S. Immigration Courts. As Jason Dzubow noted in the above-linked blog, the Administration has rewarded those who have learned how due process is denied in Atlanta with key positions at DHS and EOIR.

And, training and continuing legal education for Immigration Judges was one of the earliest casualties of the “Sessions era” at the DOJ. If the message from on high is “move ’em all out asap” — preferably by in absentia hearings without any due process or in hearings conducted in detention with the migrants unrepresented — why would any judge need training in the law, due process, or preparing carefully constructed judicial opinions?

Harken back to the days of the Bush II Administration. After Ashcroft’s “purge of the BIA” and following 9-11, some Immigration Judges and Board Members assumed that it was “open season” on migrants. How many removal orders were being churned out and how fast they were being completed became more important that what was being done (or more properly, what corners were being cut) to produce the final orders.

As the work of the BIA and the Immigration Courts deteriorated and became sloppier and sloppier, and as the incidents of Immigration Judges’ being rude, belligerent, and generally unprofessional to the individuals and private attorneys coming before them mounted, the Article III Federal Courts pushed back. Published opinions began “blistering” the performance of individual Immigration Judges and BIA Members by name, some prominent Federal Judges on both the conservative and liberal sides of the equation began speaking out in the media, and the media and the internet featured almost daily stories of the breakdown of professionalism in the U.S. Immigration Courts. The Courts of Appeals also remanded BIA final orders, many of which summarily affirmed problematic Immigration Court rulings, by the droves, effectively bringing the Bush Administration’s “deportation express” to a grinding halt as the BIA was forced to further remand the cases to the Immigration Courts for “do-overs.”

Finally, it became too much for then Attorney General Alberto Gonzalez. Although Gonzalez will hardly go down in history as a notable champion of due process, he finally issued what was basically a “cease and desist order” to the BIA and the Immigration Judges. Unfortunately, rather than admitting the primary role of the DOJ and the Administration in the disaster, and changing some of the DOJ policies and procedures that contributed to the problem, Gonzalez effectively chose to blame the whole debacle on the Immigration Judges, including those who didn’t participate in the “round ’em up and move ’em out” spectacle spawned by Administration policies. Gonzalez ordered some reforms in professionalism, discipline, and training which had some shot term effects in improving due process, and particularly the results for asylum seekers, in Immigration Court.

But, by the present time, EOIR has basically returned to the “numbers over quality and due process” emphasis. The recent EOIR press release touting increased removals (not surprisingly grants of relief to migrants decreased at the same time) in response to the President’s immigration enforcement initiatives clearly shows this changed emphasis.

Also, as Rogers notes in his article, the BIA and some Immigration Judges often apply an “ahistorical” approach under which the lessons of history are routinely ignored. Minor, often cosmetic, changes such as meaningless or ineffective reforms in statutes and constitutions, appointment of ombudsmen, peace treaties, cease fires, and pledges to clean up corruption and human rights abuses (often issued largely to placate Western Governments and NGOs to keep the foreign aid money flowing) are viewed by the BIA and Immigration Judges as making immediate “material improvements” in country conditions in asylum cases, although the lessons of history and common sense say otherwise.

Sadly, the past appears to be prologue in the U.S. Immigration Courts. It’s past time for Congress to create and independent, Article I U.S. Immigration Court.

PWS

08-14-17

 

 

 

ANALYSIS BY HON. JEFFREY CHASE: BIA ONCE AGAIN FAILS REFUGEES: Matter of N-A-I-, 27 I&N Dec. 72 (BIA 2017) Is Badly Flawed!

https://www.jeffreyschase.com/blog/2017/8/10/the-bias-flawed-reasoning-in-matter-of-n-a-i-

Jeff writes

“In its recent precedent decision in Matter of N-A-I-, 27 I&N Dec. 72 (BIA 2017), the Board of Immigration Appeals held that when one who was granted asylum adjusts his or her status under section 209(b) of the I&N Act, their asylum status automatically terminates.  The Board further held that as a result, the restriction under section 208(c) of the Act, preventing the removal of an asylee to the country from which he or she was granted asylum, no longer applies.  Although this decision hasn’t received much attention, I believe it warrants discussion, as the conclusion runs contrary to well-established principles of asylum law.

Let’s begin by looking at some basic asylum concepts.  The reason refugees are granted asylum is because, in their inability to avail themselves of the protection of their native country, they are essentially stateless.  A refugee is one who is outside of his or her country of nationality, and unable or unwilling to return because doing so will result in a loss of life or liberty due to a statutorily-protected ground. One becomes a refugee when these criteria are met; a grant of asylum is merely a legal recognition of an already existing status.

In the same way that one becomes a refugee when the above conditions are met (and not upon a grant of asylum status), one remains a refugee until those conditions cease to exist.  This generally happens in one of two ways.  Less frequently, conditions may change in the original country of nationality to the extent that the individual can safely return.  In the far more common scenario, the asylee eventually obtains citizenship in the country of refuge, at which point he or she ceases to be stateless.  Under U.S. immigration law, the only way to get from asylee to U.S. citizen is by first adjusting one’s status to that of a lawful permanent resident.  Our laws encourage this step towards citizenship (and an end to refugee status) by allowing one to adjust status one year after being granted asylum.  Furthermore, our laws waive several grounds of inadmissibility that apply to non-refugee adjustment applicants, and allow for most others to be waived (with the exception of those convicted of serious crimes or who pose security concerns).

Obviously, the fact that one takes the step towards citizenship of adjusting their status does not mean that they magically cease to be a refugee.  The change in their U.S. immigration status does not make them able to safely return to a country where they might face death, rape, lengthy imprisonment,or torture.  For that reason, section 208(c)(1) of the Act forbids the return of one granted asylum to the country of nationality from which they fled.  The statute makes no mention of this protection terminating upon a change in the asylee’s immigration status; it states that it applies “[i]n the case of an alien granted asylum.”

. . . .

To support its position that adjustment of status is a voluntary surrender of asylum status, the Board needed to provide an alternative to the purportedly voluntary act.  It therefore claimed that one “who prefers to retain the benefits and protections of asylee status, including the restrictions against removal under section 208(c) of the Act, is not obligated to file an application for adjustment of status.”  This is a disingenuous statement, as first, no one would prefer to remain a refugee forever, and second,  the statute itself states that asylum conveys only a temporary status.  Furthermore, the law should not encourage individuals with a direct path to permanent status to instead live their lives in indefinite limbo in this country.

It will be interesting to see whether the United States Court of Appeals for the Fifth Circuit (under whose jurisdiction the present case arose) will decline to accord Chevron deference to the Board’s decision for the reasons stated above.”

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

Read Jeffrey’s complete analysis at his own blog at the above link. Here’s a link to my earlier post on Matter of N-A-I-: http://immigrationcourtside.com/2017/08/04/new-precedent-bia-says-adjustment-to-lpr-status-terminates-asylum-status-matter-of-n-a-i-27-in-dec-72-bia-2017/

I agree with Jeffrey that the BIA once again has worked hard to limit protections for refugees under U.S. law. For many years now, basically since the “Ashcroft purge” of 2003, the BIA has, largely without any internal opposition, manipulated the law in many instances to avoid offering refugees appropriate protections. And, lets face it, with xenophobes Donald Trump as President and Jeff Sessions as Attorney General, nobody realistically expects today’s BIA to stand up for refugees or for the due process rights of migrants generally. That would be “career threatening” in a “captive Immigration Court system” that has abandoned its mission of “being the world’s best administrative tribunals, guaranteeing fairness and due process for all.”

PWS

08-13-17