TRUMP ADMINISTRATION ENDS PAROLE PROGRAM FOR CENTRAL AMERICAN YOUTHS!

https://www.nytimes.com/2017/08/15/us/trump-central-american-refugees.html?action=click&contentCollection=us&module=NextInCollection®ion=Footer&pgtype=article&version=newsevent&rref=collection%2Fnews-event%2Fdonald-trump-white-house

The NYT reports:

“The Trump administration is cutting off an Obama-era pathway to the United States for young migrants fleeing violence in Central America, further narrowing the options for thousands of people hoping to seek refuge here as the White House moves to tighten immigration rules.

As of Wednesday, the Department of Homeland Security is ending a program begun in 2014 that gave some children and young adults who failed to qualify for refugee status permission to enter the United States to live and work on a temporary basis, known as parole.

The agency said it was doing so in response to President Trump’s January executive order on immigration, which directed officials to exercise much more selectively their authority to admit immigrants outside normal legal channels. The Trump administration has also tried to hold back the high tide of young Central American migrants by intensifying immigration enforcement within the country and even seeking out their parents who are in the United States illegally, and arresting them.

“Parole will only be issued on a case-by-case basis and only where the applicant demonstrates an urgent humanitarian or a significant public benefit reason for parole and that applicant merits a favorable exercise of discretion,” the department said in its announcement, which is to be published in the Federal Register on Wednesday. “Any alien may request parole to travel to the United States, but an alien does not have a right to parole.”

Under the Obama administration, the program was established as a way to deal with a relentless surge of children from El Salvador, Honduras and Guatemala arriving at the southern border without adults. While the administration had tried to discourage migrants from making the dangerous journey at all, the initiative was an acknowledgment that that strategy was not thinning the flow.

. . . .

Lisa Frydman, the vice president for regional policy and initiatives for Kids in Need of Defense, a group in Washington that provides legal assistance to unaccompanied immigrant children, said the decision to shut down the parole option would drum up more business for the smuggling networks that Mr. Trump has vowed to dismantle.

“It is not a surprise, but it is a disgrace,” she said. “This is the Trump administration completely turning its back on Central American children, slamming the door on them.”

For the 2,714 people in the process of applying to the program, gaining what is known as conditional parole status, the future is hazier. Their conditional approvals will be revoked. Some, after being interviewed by refugee officers, may qualify as full-blown refugees. The rest may ask for parole individually, according to the announcement, but the agency will no longer automatically consider them for parole.

No one has entered the United States through the program since February, when the Department of Homeland Security put it on hold while officials reviewed what Mr. Trump’s executive order would mean for it, Mr. Langston said.

Ms. Frydman’s organization has three cases in which the child began the application process but has not been able to travel to the United States. In one case, two siblings applied; one was granted refugee status and the other conditional parole. The refugee is free to come; the parolee is not.

In another case, the mother had already bought the plane ticket for her child, who had received conditional parole.

“It’s so cruel,” Ms. Frydman said.”

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

Read the entire article at the link.

Mindless cruelty is one of the specialties of the Trump Administration.

PWS

08-15-17

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

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.”

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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

 

 

 

NOLAN RAPPAPORT IN THE HILL: RAISE ACT COULD BE AN OPPORTUNITY FOR DREAMERS!

http://thehill.com/blogs/pundits-blog/immigration/346367-how-trumps-legal-immigration-cuts-could-be-a-blessing-to

Nolan writes:

“Senators Tom Cotton (R-Ark.) and David Perdue (R-Ga.) recently introduced a revised version of the bill addressing legal immigration into the United States, the Reforming American Immigration for a Strong Economy (RAISE) Act.  It is supposed to spur economic growth and raise working Americans’ wages by giving priority to the best-skilled immigrants from around the world and reducing overall immigration by half.

Supporters include President Donald Trump, Attorney General Jeff Sessions, House Judiciary Committee Chairman Bob Goodlatte, andActing Secretary of Homeland Security Elaine Duke.

Nevertheless, it will not reach the president’s desk without support from influential Democratic congressmen, which will be difficult to get and won’t be free.
According to Representative Luis V. Gutierrez (D-Ill.), the RAISE Act “and the bear hug by the Bannon/Kelly/Trump White House — betrays the deep animosity towards legal immigration that has become the central, unifying tenet of the Republican Party.”

. . . .

Suggestions for a compromise.

The main price for Gutierrez’s support would be to establish a DREAM Act program that would be based on an appropriate merit-based point system.

The number of undocumented aliens who might benefit from a dream act can range from 2.5 to 3.3 million.  It isn’t likely that an agreement will be reached if Gutierrez insists on a number in that range.

Concessions have to be made to achieve an acceptable compromise, and allowing termination of the Visa Waiver Program would be a reasonable choice.  An alternative would be to keep the program as is but distribute the visas on a merit point system instead of using a lottery.

The refugee provision is problematic, but the president has sole authority to determine the number of admissions and the current president supports the 50,000 cap. The Democrats will try to eliminate this cap or raise it if they can’t eliminate it, but this should not be a deal breaker if the other issues are worked out satisfactorily.

The restrictions on family-based immigration, however, are another matter.  They should be modified.  Cotton and Purdue doomed their bill to failure with these provisions.  They hurt constituents on both sides of the aisle.

Moreover, they do not make any sense.  What does national interest mean if the family-unification needs of citizens and legal permanent residents don’t count?

Some advocates strongly opposes the point system because they think it fails to take into account the needs of U.S. businesses, but their concern is based on the point criterion in the current version of the RAISE Act, which has not been subjected to any hearings or markups yet.  If the senators and Gutierrez cannot work out a compromise that protects the needs of U.S. businesses, there will be plenty of time to make additional changes.

This isn’t just about moving these bills through congress.  According to recent Gallup polls, “Americans view Congress relatively poorly, with job approval ratings of the institution below 30% since October 2009.”

And the current Republican-controlled congress is not turning this around.  Reaching an agreement with the Democrats on an immigration reform bill that includes a DREAM Act legalization program would be a good place to start.”

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

Go over to The Hill at the above link to read Nolan’s complete article.

PWS

08-13-17

 

TRUMP’S “GONZO” ENFORCEMENT POLICIES PRODUCE MORE REMOVAL ORDERS BUT FEWER ACTUAL DEPORTATIONS! — CRIMINAL DEPORTATIONS FALL AS DHS PICKS ON NON-CRIMINALS! — MINDLESS ABUSE OF ALREADY OVERWHELMED IMMIGRATION COURT DOCKETS ACTUALLY INHIBITS ABILITY TO CONCENTRATE ON CRIMINALS!

Read this eye opener from Maria Sacchetti in the Washington Post about how the Administration manipulates data to leave a false impression of effective law enforcement.

https://www.washingtonpost.com/local/immigration/trump-is-deporting-fewer-immigrants-than-obama-including-criminals/2017/08/10/d8fa72e4-7e1d-11e7-9d08-b79f191668ed_story.html?hpid=hp_hp-more-top-stories_immigration-540am%3Ahomepage%2Fstory&utm_term=.a8889396e334

“By Maria Sacchetti August 10 at 9:43 PM
President Trump has vowed to swiftly deport “bad hombres” from the United States, but the latest deportation statistics show that slightly fewer criminals were expelled in June than when he took office.

In January, federal immigration officials deported 9,913 criminals. After a slight uptick under Trump, expulsions sank to 9,600 criminals in June.

Mostly deportations have remained lower than in past years under the Obama administration. From January to June, Immigration and Customs Enforcement deported 61,370 criminals, down from 70,603 during the same period last year.

During the election, Trump vowed to target criminals for deportation and warned that they were “going out fast.” Later, he suggested he would try to find a solution for the “terrific people” who never committed any crimes, and would first deport 2 million to 3 million criminals.

But analysts say he is unlikely to hit those targets. Since January, immigration officials have deported more than 105,000 immigrants, 42 percent of whom had never committed any crime.

Last year, a total of 121,170 people were deported during the same period, and a similar percentage had no criminal records.

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John Sandweg, the former acting director of Immigration and Customs Enforcement, said part of the reason for the decline is that illegal border crossings have plunged since Trump took office pledging to build a “big, beautiful” wall and crack down on illegal immigration. Immigrants caught at the border accounted for a significant share of deportations under the Obama administration.

 

Another factor, however, is that immigration officials are arresting more people who never committed any crime — some 4,100 immigrants in June, more than double the number in January — clogging the already backlogged immigration courts and making it harder to focus on criminals.

Immigration and Customs Enforcement released the deportation figures, which the Post had requested, late Thursday, two days after the Justice Department announced that immigration courts ordered 57,069 people to leave the United States from February to July, a nearly 31 percent increase over the previous year.

However, Justice officials have not said how many of the immigrants ordered deported were actually in custody — or if their whereabouts are even known. Every year scores of immigrants are ordered deported in absentia, meaning they did not attend their hearings and could not immediately be deported.

The deportation figures come as the Trump administration is fighting with dozens of state and local officials nationwide over their refusal to help deport immigrants, and as the administration is attempting to reduce legal and illegal immigration.”

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

It appears that many of the increased removal orders touted by DOJ/EOIR earlier this week might have been “in absentia” orders, issued without full due process hearings and all too often based on incorrect addresses or defective notices. Some of those orders turn out to be unenforceable. Many others require hearings to be reopened once the defects in notice or reasons for failure to appear are documented. But, since there wild inconsistencies among U.S. Immigration Judges in reopening in absentia cases, “jacking up” in absentia orders inevitably produces arbitrary justice.

The article also indicates that the Administration’s mindless overloading of already overwhelmed U.S. Immigration Courts with cases of non-criminal migrants has actually inhibited the courts’ ability to concentrate on criminals.

Taxpayer money is being squandered on “dumb” enforcement and a “captive court system” that no longer functions as a provider of fairness, due process, and justice. How long will legislators and Article III judges continue to be complicit in this facade of justice?

PWS

08-11-17

 

DEPORTATIONS RISE UNDER TRUMP, BUT BORDER CROSSINGS ALSO CONTINUE TO TICK UPWARDS! — Read My OpEssay: “Due Process Disaster Is Brewing In The U.S. Immigration Courts — Is Anybody Paying Attention?”

https://www.washingtonpost.com/local/immigration/deportation-orders-up-under-trump-fewer-prevail-in-immigration-court/2017/08/08/d3f0a6a6-7c74-11e7-9d08-b79f191668ed_story.html?utm_term=.848b8a83c250&wpisrc=nl_daily202&wpmm=1

Maria Sacchetti reports in the Washington Post:

“Federal immigration courts ordered 57,069 people to leave the United States in the first six months of the Trump administration, up nearly 31 percent over the same period last year, the Justice Department announced Tuesday.

Additionally, 16,058 people prevailed in their immigration cases, or had them closed, allowing them to stay in the United States, according to the data, which tallied orders issued from Feb. 1 to July 31. That total marked a 20.7 percent drop from the 20,255 immigrants who prevailed at the same time last year.

In a news release, the Justice Department said the notoriously backlogged court system is making a return to the “rule of law” under President Trump, who has vowed to speed deportations. But officials did not say how many of the orders were issued in absentia, meaning to immigrants who did not attend their hearings and therefore could not immediately be deported.

The Washington Post reported last week that thousands of immigrants, some seeking protection from violence in their homelands, have missed their court dates in recent years, often because they did not know about them or were afraid to show up. Advocates for immigrants have also raised concern about the lack of legal aid for immigrants, especially for those in immigration jails.

Last month, the president of the National Association of Immigration Judges said courts are severely understaffed, with about 300 immigration judges juggling a quickly rising caseload. An estimated 600,000 cases are pending nationwide.

United We Dream, an immigrant youth-led organization, protested ICE raids at Lafayette Square near the White House in February. (Linda Davidson/The Washington Post)

Unlike the traditional federal court system, which is independent of the executive branch of government, immigration courts are administered by the Justice Department.

That agency said that from Feb. 1 to July 31, judges issued 73,127 final immigration decisions, an increase of 14.5 percent over the same period in 2016.

Of those decisions, 49,983 were deportation orders, an increase of nearly 28 percent from the same period in 2016. The rest were orders to leave the United States voluntarily, a process by which immigrants generally face fewer barriers if they wish to apply to return to the United States in the future.

Federal officials attributed the increase in case completions to Trump’s Jan. 25 executive order dispatching more than 100 immigration judges to immigration jails across the country. More than 90 percent of cases heard in jails have led to orders to leave the United States. The department has also hired 54 new judges to work in immigration courts since Trump took office. More are being hired every month.

Dana Leigh Marks, an immigration judge based in San Francisco who heads the national association, wrote in Newsday last month that immigration courts should be separated from the Justice Department to ensure “judicial independence and protection from political influences.”

“More skilled court management, provided by experienced court administrators, rather than a law enforcement agency with priorities other than fairness and efficiency, would greatly enhance our ability to complete the tasks,” she wrote. “For example, cases would not be docketed to make political statements or serve as a show of force by the U.S. government.”

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

Due Process Disaster Is Brewing In The U.S. Immigration Courts — Is Anybody Paying Attention? 

by Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Meanwhile, according to CQ Roll Call, arrests of undocumented individuals at the Southern Border rose 13.1% in July, the second consecutive monthly increase. Overall, DHS’s CBP reports arresting more family units and fewer unaccompanied children during the first 10 months of FY 2017.

While CBP “fobs off” the increases as “seasonal,” they do cast some doubt on whether the Trump Administration’s “send ’em all back asap” enforcement approach is really going to decrease undocumented migration in the long run. It might simply be a case of professional human smuggling operations revising their methods and raising their prices to adjust to higher risk factors and the “market” taking time to adjust to the changing practices and price increases. Moreover, to date, neither increases in removal orders, some as noted by Horwitz undoubtedly “in absentia orders” issued without full due process protections, nor increases in the number of U.S. Immigration Judges has stopped the growth of the backlog of cases before the U.S. Immigration Courts, currently estimated at more than 610,000 pending cases!

Apparently, under the Trump/Sessions regime success in the U.S. Immigration Court System is no longer measured by improvements in due process and fairness or by insuring that the individuals coming before the court get the protections and relief to which they are entitled under the law. Nope! The “rule of law” in Immigration Court now appears synonymous with turning that Court System into a “deportation mill” — just another whistle stop on the “deportation express.”

In other words, we’ve now come “full circle” since 1983. Then, EOIR was created to get the Immigration Courts out of INS to enhance due process and overcome a public perception that the courts were merely functioning as adjuncts of INS enforcement. The U.S. Immigration Courts and EOIR essentially have been “recaptured” by DHS  enforcement.

EOIR has once again become an insulated “inbred” agency. Judicial appointments are made by DOJ politicos almost exclusively from the ranks of government attorneys, primarily DHS and DOJ prosecutors, just like when the “Legacy INS” ran the courts. Dockets are out of control, management is haphazard, technology is outdated and inadequate, and clerical staffing shortages are chronic. Staffing and docketing priorities are designed to accommodate enforcement priorities and to maximize removals, rather than to promote due process and fairness. Training and attention to the real “rule of law” are afterthoughts. Public service is a dirty word.

Morale among those at EOIR who care about the due process judicial mission has been steadily declining even as already sky-high stress levels continue to ratchet up. Numbers and removals have replaced fairness, professionalism, and unbiased decision making as objectives.

There are rumors that the Immigration Courts are going to be taken out of the DOJ and “reintegrated” into DHS to reflect their “true function” as part of the deportation mechanism. I think it’s unlikely unless Sessions becomes the new Secretary of DHS. But, really, what difference would it make? Sessions basically “reassumed” the immigration enforcement functions that once were in the Attorney General’s portfolio but were sent over to DHS when it was created after 9-11. Kelly merely signed off and nodded agreement to what Sessions told him to do.

A move by the DOJ apparently is afoot to revamp the judicial “evaluation system” to rate Immigration Judges more like “lower level DOJ attorneys” rather than judicial officials exercising independent judgment. Such bureaucratic ratings systems often elevate “productivity” above quality, value “following agency priorities” over exercising independent judgment, and serve to give the politicos at the DOJ more control and leverage over the day to day functioning of what is supposed to be a judiciary free from political influence or intimidation. Moreover, such ratings are often prepared by “supervisory judges” many of whom hear no cases and most of whom have little daily contact with the Immigration  Judges they nominally “supervise.” In a well-functioning judicial system, the local “Chief Judge” is a leader and problem solver, not a “supervisor” of her or his peers.

At this point, the Trump Administration clearly has no interest in fixing the festering problems in the U.S. Immigration Courts; they are determined to make things worse. While there is some bipartisan support in Congress for an independent Article I U.S. Immigration Court, to date it hasn’t coalesced into any specific, politically viable legislation.

That basically leaves it to the Article III Federal Courts to decide whether or not to fix the Immigration Courts. One possibility is that they will decide that it is too much: just forget due process for foreign nationals, rubber stamp the removal orders, stay above the fray, and become another “whistle stop on the deportation express.”

A more optimistic possibility is that they will draw the line on the due process nightmare in the U.S. Immigration Courts being promoted by the Administration. But, that will make the Article III Courts a major “track block” on the deportation express. The trains will derail and pile up on the doorstep, and the Article III Courts can count on little if any help or resources from Congress in untangling the mess and getting things back on track. Understandably, from a practical if not a legal point of view, some Article III Judges aren’t going to want to go there.

One thing is certain — things can’t continue they way they are going now. Something has got to give! And, when it does, the Article III Courts will be forced to do some self-examination and decide whether they are going to be part of the problem, or part of the solution. Are life-tenured Article III judgeships in essence about securing life sinecures, or about taking a perhaps unpopular and labor intensive stand for Constitutional Due Process for all, even the weakest and most vulnerable among us? We’ll soon find out!

PWS

08-09-17

Once Upon A Time, The DOJ Intervened On Behalf Of Disadvantaged Minorities For Whom Civil Rights Protections Were Enacted — Now, Not So Much, As Jeff “Gonzo Apocalypto” Sessions Finds Ways To Use Civil Rights Protections Against Minorities & To Help White Establishment Cling To Power! — Switches Sides To Favor Voter Suppression Before Supremes!

https://www.washingtonpost.com/world/national-security/justice-department-reverses-position-to-allow-ohio-to-purge-inactive-voters-from-rolls/2017/08/08/e93c5116-7c35-11e7-9d08-b79f191668ed_story.html?utm_term=.7ea94a97bc00&wpisrc=nl_daily202&wpmm=1

Sari Horwitz reports in the Washington Post:

“The Justice Department has reversed its position in a high-profile voting case in Ohio, siding with the state in its effort to purge thousands of people from its rolls for not voting in recent elections.

The move is part of a broader campaign by the Trump administration to support restrictions on who is eligible to vote, a radical change in philosophy from the previous Justice Department, which sued a number of states over voting laws that it deemed discriminatory against minorities.

In a court filing late Monday, Justice Department attorneys took the opposite position from the Obama administration in a case that involves Ohio’s removal last year of tens of thousands of inactive voters from its voting rolls.

In their brief, government lawyers say they reconsidered the Ohio vote-purging issue after the “change in Administrations,” and they argue that the state’s actions are legal under federal law. The case is headed next to the Supreme Court.

Ohio’s procedure allows the state to purge voters who meet certain criteria for being inactive. If a voter has not cast a ballot in two years, the person is sent a notice asking them to confirm their registration. If the voter does not respond and does not cast a ballot over the next four years, the person is removed from the rolls.

The Trump administration has signaled in other ways that it intends to back added requirements for voters as part of a crackdown on alleged fraud.

President Trump in May created an advisory commission on election integrity that has been tasked with determining the extent of illegal voting. The president earlier made the baseless allegation that illegal voting cost him the popular vote against Democrat Hillary Clinton in the 2016 presidential election.

The commission’s only notable act so far has been to request massive amounts of voter data from the states, a move that has provoked lawsuits accusing the panel of breaching Americans’ privacy.

The case in Ohio is not the first time the Justice Department has reversed course in a major legal battle over voting rights. In February, shortly after Jeff Sessions became attorney general, the department dropped its position in a long-running case that argued Texas intended to discriminate against minorities when it passed a strict voter-ID law.

The Texas law, passed in 2011, required that voters present certain forms of identification, such as a driver’s license or a weapons permit, but the state did not allow other forms, including IDs issued by colleges. Critics said these restrictions targeted voters, such as young people and minorities, who are more likely to vote Democratic. A number of courts found the Texas law to be unconstitutional, and a federal court in April found that the Texas legislature intentionally discriminated against black and Hispanic voters.

Voting rights advocates said the Justice Department’s action on Ohio represented a major change in direction for the U.S. government’s stance on access to the polls.

The move “signals the broader agenda of the administration to roll back voter rights in this country,” said Vanita Gupta, former head of the Justice Department’s civil rights division under President Barack Obama and now president of the Leadership Conference on Civil and Human Rights.”

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

Read the complete article at the above link.

During Sessions’s Senate Confirmation, Senator Liz Warren, Senator Corey Booker, Members of the Congressional Black Caucus, and my friend and former DOJ Civil Rights Attorney Jerry Hebert, among others, tried to tell the Committee and the Senators that Sessions was the same White Nationalist/racially challenged individual he had been back when he was properly rejected for a U.S. District Judge position. They were “tuned out.”

Sessions took umbrage, and then lied under oath to the Committee when he claimed to be a staunch defender of civil rights and someone who would separate his political positions as a Republican Senator from Alabama (a state with a disgraceful history of racial bias) from his new responsibilities as Attorney General for all Americans. That would include people of color, LGBT Individuals, immigrants, both legal and undocumented, women, and even Democrats. But, he’s the “same ol’ Jeff” just like his critics said he would be. And the carnage to the American justice system that he is creating probably won’t be repaired any time soon.

Gonzo’s reported next target and scheme to waste of taxpayer money: legalized marijuana. Return to “Reefer Madness!”

PWS

08-09-17

 

GOBBLEDYGOOK CENTRAL: After 12 Years Kicking Around The System, 9th Circuit Declines Chevron Deference To Matter of Cortez Canales, 25 I. & N. Dec. 301 (BIA 2010) & Punts Issue Back To BIA — Lozano-Arredondo v. Sessions — Why “Chevron Must Go!” — Somewhere In This Judicially-Created Mess, It’s All About A 2-Decades Old “Petty Theft” Conviction!

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/08/11-72422.pdf

Key quote:

“We grant Lozano-Arredondo’s petition and remand to the BIA. We hold, first, that petit theft under Idaho law does not qualify categorically as a crime involving moral turpitude. We also hold that under the modified categorical approach, the record of conviction is inconclusive. Because the effect of that inconclusive record presents an open legal question now pending before another panel of this court, our analysis ends there. On remand, once this burden of proof question is resolved, the BIA should determine whether Lozano- Arredondo’s conviction qualifies as a crime involving moral turpitude under the modified categorical approach, unless the case is resolved on other grounds.

Second, we hold the BIA erred by deciding at Chevron step one that an “offense under” § 1227(a)(2)(A)(i) does not include the within-five-years element. Because the BIA “erroneously contends that Congress’ intent has been clearly

24 LOZANO-ARREDONDO V. SESSIONS

expressed and has rested on that ground, we remand to require the agency to consider the question afresh.” Delgado, 648 F.3d at 1103–04 n.12 (quoting Negusie, 555 U.S. at 523) (internal quotation marks omitted); see INS v. Ventura, 537 U.S. 12, 16–17 (2002). In light of this holding and the explanations we have given, the BIA must reconsider its interpretation of the phrase “offense under” in § 1229b(b)(1)(C).”

PANEL:  Circuit Judges William A. Fletcher, Raymond C. Fisher and N. Randy Smith

OPINION BY: Judge Fisher

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

Com’ on Man! This case has been around the system since 2005 — 12 years! The conviction is now two decades old. The case depends on two legal questions.

The 9th Circuit should answer the legal questions and either 1) affirm the BIA’s final order of removal, or 2) remand the case to the BIA to apply the law that has been determined by the 9th Circuit to the facts of this case. The court’s prose is impenetrable; the court’s rationale, based on Chevron, is irrational.

It’s time for Chevron to go and for Article III Courts to do their job of deciding legal questions rather than bogging down the system with infinite delays through needless remands to have the BIA pass on difficult legal questions. That’s the Article III Courts’ Constitutional function; they have been avoiding it for years under the Supreme’s judge-made facade of Chevron and Brand X.

(Yes, I know the 9th Circuit is only following Chevron, as they are bound to do. This is something the Supremes need to address, sooner rather than later. The result in this case is pure legal obfuscation.)

Oh yeah, while we’re at it, if there is an “open legal question” before another panel of the 9th Circuit, why remand the case to the BIA which can’t resolve that? Why not send this case to the “other panel” or ask your colleagues on the other panel if they could expedite their consideration of this issue?

PWS

08-08-17

 

TRAC: 75% Of US Counties Now Affected By Disaster In U.S. Immigration Courts!

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

FOR IMMEDIATE RELEASE

Greetings. The Transactional Records Access Clearinghouse (TRAC) at Syracuse University has just released a brand new web mapping application that allows the public to examine for the very first time the number of individuals residing in each state, county, and local community within a county, who have pending cases before the Immigration Court.

The level of geographic detail now available reveals some surprising facts. There are a very large number of communities across the country that now have residents with cases before the Immigration Court. Currently pending court cases directly involve residents in 11,894 communities across the country. Indeed, a startling 2,507 separate counties in the United States – more than three out of every four counties (78%) – have residents with cases currently pending before the Immigration Court. And a total of 39 out of the 50 states have 1,000 or more residents now before the Immigration Court.

Twenty-two states have communities on the list of the top 100 places with the largest number of pending court cases. A total of 30 out of these top 100 communities are located in California. New York has twelve. Texas and Florida each have ten. Virginia has eight.

Leading the list is Houston, Texas with a total of 33,360 pending cases, following by Queens and Brooklyn New York with 25,420 and 14,960 cases respectively. Los Angeles, California with 14,287 pending cases and San Fernando Valley, California with 9,311 pending cases were in fourth and fifth place.

To view the report with the top 100 communities go to:

http://trac.syr.edu/immigration/reports/476/

To access the new mapping application that contains details on every state, county, and community in the country, go to:

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

In addition, many of TRAC’s free query tools – which track the court’ 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

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

Go on over to TRAC IMMIGRATION for more!

Thanks to Nolan Rappaport for bringing this to my attention.

PWS

08-08-17

HEAVYWEIGHT BOUT: RAHM V. GONZO — Chicago Sues DOJ Over Sanctuary Cities!

http://www.chicagotribune.com/news/local/politics/ct-rahm-emanuel-donald-trump-lawsuit-met-0808-2-20170807-story.html

The Chicago Tribune reports:

“Mayor Rahm Emanuel‘s Law Department on Monday filed its much-touted lawsuit against President Donald Trump‘s Justice Department over its effort to withhold some grant funding from so-called sanctuary cities.

Emanuel wants a federal judge to block the Trump administration from enforcing its new policy, which would affect not just Chicago, but other major U.S. cities like New York and San Francisco. U.S. Attorney General Jeff Sessions’ funding decision also would affect Cook County, which also holds sanctuary status and operates the largest single-site jail in the country.

The Justice Department quickly fired back in an emailed response that notes last year more people were killed in Chicago than New York and Los Angeles combined. “It’s especially tragic that the mayor is less concerned with that staggering figure than he is spending time and taxpayer money protecting criminal aliens and putting Chicago’s law enforcement at greater risk,” the response stated.

Trump has long maintained that illegal immigration fuels crime, an assertion that critics say is not backed by statistics that show immigrants in the country without the required permission are less likely to commit crimes than U.S. citizens and legal residents. And Emanuel in a rare Sunday news conference maintained Trump’s policy would damage efforts to tamp down crime, because people in the city without documentation would then be afraid to cooperate with police.”

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Uh, cutting funding for law enforcement to make cities safer doesn’t make much sense either. And, I have no doubt that if Sessions were really interested in getting criminals off the streets, he and Emanuel could reach some type of working agreement. But, what Sessions and the DOJ are really after is to cause more “collateral damage.” To date, the “gonzo” increased enforcement efforts promoted by Trump, Sessions, Kelly, and some within ICE have netted about 70% “collaterals” — folks without any serious criminal record. So, either ICE is particularly incompetent at targeting criminals, or the whole beefed up interior enforcement program is just a smokescreen for more arbitrary enforcement by DHS. I think that’s why Emmanuel and others are concerned about the Trump Administrations “punish sanctuary cities” initiatives.

PWS

08-07-17

 

POLITICS: CAROL ANDERSON IN THE NYT: TRUMP CHANNELS WHITE RESENTMENT — “policies . . . based on perception and lies rather than reality . . . nothing new!”

https://mobile.nytimes.com/2017/08/05/opinion/sunday/white-resentment-affirmative-action.html?em_pos=small&emc=edit_ty_20170807&nl=opinion-today&nl_art=13&nlid=79213886&ref=headline&te=1&referer=

Anderson writes in the NYT Sunday Review:

“White resentment put Donald Trump in the White House. And there is every indication that it will keep him there, especially as he continues to transform that seething, irrational fear about an increasingly diverse America into policies that feed his supporters’ worst racial anxieties.

If there is one consistent thread through Mr. Trump’s political career, it is his overt connection to white resentment and white nationalism. Mr. Trump’s fixation on Barack Obama’s birth certificate gave him the white nationalist street cred that no other Republican candidate could match, and that credibility has sustained him in office — no amount of scandal or evidence of incompetence will undermine his followers’ belief that he, and he alone, could Make America White Again.

The guiding principle in Mr. Trump’s government is to turn the politics of white resentment into the policies of white rage — that calculated mechanism of executive orders, laws and agency directives that undermines and punishes minority achievement and aspiration. No wonder that, even while his White House sinks deeper into chaos, scandal and legislative mismanagement, Mr. Trump’s approval rating among whites (and only whites) has remained unnaturally high. Washington may obsess over Obamacare repeal, Russian sanctions and the debt ceiling, but Mr. Trump’s base sees something different — and, to them, inspiring.

Like on Christmas morning, every day brings his supporters presents: travel bans against Muslims, Immigration and Customs Enforcement raids in Hispanic communities and brutal, family-gutting deportations, a crackdown on sanctuary cities, an Election Integrity Commission stacked with notorious vote suppressors, announcements of a ban on transgender personnel in the military, approval of police brutality against “thugs,” a denial of citizenship to immigrants who serve in the armed forces and a renewed war on drugs that, if it is anything like the last one, will single out African-Americans and Latinos although they are not the primary drug users in this country. Last week, Mr. Trump and Attorney General Jeff Sessions put the latest package under the tree: a staffing call for a case on reverse discrimination in college admissions, likely the first step in a federal assault on affirmative action and a determination to hunt for colleges and universities that discriminate against white applicants.

That so many of these policies are based on perception and lies rather than reality is nothing new. White resentment has long thrived on the fantasy of being under siege and having to fight back, as the mass lynchings and destruction of thriving, politically active black communities in Colfax, La. (1873), Wilmington, N.C. (1898), Ocoee, Fla. (1920), and Tulsa, Okla. (1921), attest. White resentment needs the boogeyman of job-taking, maiden-ravaging, tax-evading, criminally inclined others to justify the policies that thwart the upward mobility and success of people of color.

. . . .

Part of what has been essential in this narrative of affirmative action as theft of white resources — my college acceptance, my job — is the notion of “merit,” where whites have it but others don’t. When California banned affirmative action in college admissions and relied solely on standardized test scores and grades as the definition of “qualified,” black and Latino enrollments plummeted. Whites, however, were not the beneficiaries of this “merit-based” system. Instead, Asian enrollments soared and with that came white resentment at both “the hordes of Asians” at places like the University of California, Los Angeles, and an admissions process that stressed grades over other criteria.

That white resentment simply found a new target for its ire is no coincidence; white identity is often defined by its sense of being ever under attack, with the system stacked against it. That’s why Mr. Trump’s policies are not aimed at ameliorating white resentment, but deepening it. His agenda is not, fundamentally, about creating jobs or protecting programs that benefit everyone, including whites; it’s about creating purported enemies and then attacking them.

In the end, white resentment is so myopic and selfish that it cannot see that when the larger nation is thriving, whites are, too. Instead, it favors policies and politicians that may make America white again, but also hobbled and weakened, a nation that has squandered its greatest assets — its people and its democracy.

PWS
08-07-17

TWO NEW ONES FROM CNN’S AMAZING TAL KOPAN: September May Bring Dark Clouds For Dreamers — Trump Administration Lags In Filling Top Spots!

Good morning! Happy recess.

Thought you might find a couple stories of mine that we published this morning interesting.

As always, all the best,

Tal

 

 

A storm is brewing for DACA this September

By: Tal Kopan, CNN

A suite of pressures on the policy that protects young undocumented immigrants is brewing — and it could mean the program soon either becomes permanent or disappears entirely.

Next month, the Trump administration faces both an ultimatum from challengers to the Deferred Action for Childhood Arrivals policy, or DACA, and a potentially nasty government funding fight that could require an 11th hour deal to avert a shutdown.

Last week, the administration’s biggest defender of DACA moved much closer to the President, who has also spoken about being sympathetic to DACA recipients. Gen. John Kelly is now the White House chief of staff, and as homeland security secretary, he spoke frequently about preserving the program under this administration.

But the move also takes him out of the department that was responsible for issuing permits under the Obama administration policy — and he recently warned Democrats on the Hill that the program’s prospects are dim.

When Congress wraps up its August recess, members will return to a consequential month — one in which they may be forced to act whether they want to or not.

The earliest trigger will be September 5. That’s the deadline in an ultimatum issued by Texas Attorney General Ken Paxton and nine other state attorneys general to the Trump administration: Rescind DACA or we will challenge it in an unfriendly court. They have already succeeded in stopping a similar program to protect the parents of childhood arrivals to the US.

Trump said the ultimate decision on what to do will be made by him.

“It’s a decision that I make and it’s a decision that’s very, very hard to make. I really understand the situation now,” Trump said in a conversation with reporters on Air Force One last month. “I understand the situation very well. What I’d like to do is a comprehensive immigration plan. But our country and political forces are not ready yet.”

Trump has spoken recently about having compassion for recipients of the policy, which protects undocumented immigrants brought to the US as children from deportation and allows them to work and study in the US. But he also pledged to end the program “immediately” on the campaign trail, and his base strongly opposes the Obama administration policy they call an “amnesty.”

That could make punting the issue to Congress an appealing solution for the administration.

“My assumption is that the cleanest thing they can do, though they’ll take the vast majority of the blame for ending the program, is simply announce come September 5 a sunset of the program, that they’ll stop approving applications, and then invite Congress to work on legislation,” said a Democratic congressional staffer familiar with the issue who spoke on condition of anonymity to be candid.

Story continues here http://www.cnn.com/2017/08/07/politics/daca-coming-storm/index.html

 

 

 

 

 

 

At 200-day mark, Trump nominations still lag

By: Tal Kopan, CNN

On President Donald Trump’s 200th day in office, he still lags far behind his predecessors in staffing up his administration, both in terms of nominations and confirming those positions.

Any new administration has to fill roughly 4,000 positions across the government, more than 1,200 of which require Senate confirmation. While no administration can accomplish that task in 200 days, the nonprofit good-government group Partnership for Public Service recommends having the most important 300-400 confirmed by August recess.

Trump hasn’t come close.

The President got a big boost to his progress last week when the Senate confirmed en masse more than five dozen outstanding nominees — roughly doubling the number of nominees Trump has had confirmed.

But he still remains far behind.

As of August 4, when the Senate left town for its August recess, Trump has nominated 277 people for key posts, has had 124 confirmed, and has withdrawn eight of the nominations, according to CNN’s tracker.

The Partnership for Public Service has identified 577 executive branch positions as being particularly essential — and Trump has only successfully filled about a fifth of them.

Meanwhile, his predecessor fared far better at the same point in their terms. President Barack Obama had 433 nominations and 310 confirmations at the same point, President George W. Bush had nominated 414 and had 294 confirmed, and President Bill Cilnton had 345 nominations and 252 confirmed.

Trump’s rate of 45% of nominees confirmed lags behind Obama’s 72%, Bush’s 71% and Clinton’s 73%. His nominees have also taken far longer to confirm — an average of 54 days compared with 41, 35 and 30 respectively.

The White House has consistently placed blame for its slow pace on Democrats — the minority party in the Senate — arguing they’ve employed stall tactics to slow-walk Trump’s confirmations.

Indeed, before the failure of the Senate to advance a plan to repeal Obamacare, Senate Democrats were forcing Republicans to go through all procedural steps for nominees, dragging out the process.

But part of the slowness has also been due to difficulty getting paperwork in for many of the nominees, and some announced nominations were not transmitted to the Senate for formal consideration for months. Trump also lags in naming officials amid reports that Cabinet officials and the White House have butted heads over potential candidates.

Trump has had his entire Cabinet confirmed, although when he selected John Kelly as his chief of staff late last month, he created a vacancy at the Department of Homeland Security. But experts say his slowness to fill deputy positions at agencies is equally important, as those officials handle much of the day-to-day management of government.

Partnership for Public Service President Max Stier, who has advised multiple presidents and presidential candidates, including Trump, on transitioning into office, said the President should be prioritizing filling positions if he wants to execute his agenda.

“While the pace of nominations for political appointees has picked up in recent weeks, critical leadership positions remain vacant at almost every agency and department,” Stier said. “The President must prioritize getting his full team in place. Doing so will strengthen his ability to run the government, achieve his priorities and deal effectively with the inevitable crises that will take place in our complicated and dangerous world.”

Story link here: http://www.cnn.com/2017/08/07/politics/trump-200-days-nominations/index.html

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Thanks, Tal, for your incisive and timely reporting and for making it readily available to us.

PWS

08-07-17