⚖️ THE GIBSON REPORT — Compiled By Elizabeth Gibson, Esquire, Managing Attorney, NIJC: Stephen Miller Was Even More Of A Disreputable Scofflaw! — 9th Halts BIA’s “Rote Formula” For Improperly Denying CAT W/O Meaningful Analysis — EOIR In Louisiana Continues To Be “Death Valley” ☠️⚰️  For Asylum Seekers:  “‘I feel that the big problem we face today is that there is a real dehumanization of the entire process,’ said Mich Gonzalez, Associate Director of Advocacy at the Southern Poverty Law Center.”

Elizabeth Gibson
Elizabeth Gibson
Managing Attorney
National Immigrant Justice Center
Publisher of “The Gibson Report”

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Weekly Briefing

 

This briefing is designed as a quick-reference aggregation of developments in immigration law, practice, and policy that you can scan for anything you missed over the last week. The contents of the news, links, and events do not necessarily reflect the position of the National Immigrant Justice Center. If you have items that you would like considered for inclusion, please email them to egibson@heartlandalliance.org.

 

CONTENTS (jump to section)

  • ◦NEWS
  • ◦LITIGATION & AGENCY UPDATES
  • ◦RESOURCES
  • ◦EVENTS

 

PRACTICE UPDATES

 

Reminder: Mayorkas Enforcement Priorities Memo No Longer in Effect as of 6/24/22

The 6/10/22 order in Texas v. United States vacating the memo went into effect 6/24/22 and has not been stayed at this time. Regardless of the memo, it is important to continue arguing that prosecutorial discretion is a longstanding executive power and DHS retains the ability to join motions, stipulate to relief, etc. See Practice Alert: Judge Tipton Issues Decision Vacating Mayorkas Enforcement Priorities Memo.

 

Some USCIS Field Office Return to Requiring Masks

USCIS: Where community levels are high, all federal employees and contractors—as well as visitors two years old or older—must wear a mask inside USCIS offices and physically distance regardless of vaccination status. Check CDC Level for Your Field Office.

 

NEWS

 

ICE Detains About 23,400 at End of June While Agency’s Electronic Monitoring Program Grows to 280,000

TRAC: After hovering around 20,000 for several months, Immigration and Customs Enforcement’s detained population reached 23,390 on June 19, 2022—down slightly from the start of the month but still higher than in previous months. About three-quarters (74 percent) of people in detention were arrested by Customs and Border Protection (CBP). The number of immigrants arrested by ICE saw a modest but steady increase up to a total of 5,979. See also GAO: Alternatives to Detention: ICE Needs to Better Assess Program Performance and Improve Contract Oversight; Meet SmartLINK, the App Tracking Nearly a Quarter Million Immigrants.

 

Detained Immigrant Women Are Facing A Grueling Abortion Struggle

Bustle: At a base level, the abortion restrictions detained women face are similar to the ones that low-income women face across the country because of the Hyde Amendment. For more than 40 years, the Hyde Amendment has prevented women on Medicaid from using federally funded insurance to pay for abortions, except in cases of rape, incest, or danger to the mother’s life. The same type of language exists in appropriations bills and healthcare regulations for all facets of the federal government, including the Immigration and Customs Enforcement agency.

(This article is from 2017, but for an update, compare this list of detention centers with this map of abortion laws.)

 

Border Patrol paroles migrants to avoid massive overcrowding

AP: The Border Patrol paroled more than 207,000 migrants who crossed from Mexico from August through May, including 51,132 in May, a 28% increase from April, according to court records. In the previous seven months, it paroled only 11 migrants.

 

US on course to welcome 100,000 Ukrainians fleeing war this summer

Guardian: At least 71,000 Ukrainians have entered the US since March, with Joe Biden’s pledge to welcome 100,000 people fleeing the Russian invasion on track to be met over the summer.

 

Decades’ Worth of Unused Immigrant Visas Salvaged in House Bill

Bloomberg: The amendment, which faces a long path to the finish line in the appropriations process, would allow DHS to recapture family and employment-based visas that went unused due to bureaucratic snags, processing delays, and other disruptions since 1992.

 

State Department Denies Substantial Percentage of Employer-Sponsored Immigrant Visas

AIC: Data analyzed by the Cato Institute shows that since Fiscal Year 2008, USCIS denied about 8% of employer-sponsored immigrants while the average denial rate by consular officers was 63%.

 

White House To Release Final DACA Rule In August

Law360: The Biden administration announced plans to issue a final Deferred Action for Childhood Arrivals rule by August and continue its efforts to undo multiple Trump-era regulations. Here are the main immigration highlights from the administration’s regulatory agenda for spring 2022.

 

Virginia budget to move funding from DACA students to state’s HBCUs

WaPo: Critics of the measure say it perpetuates a false scarcity problem at a time when Virginia has a budget surplus, and it demands that lawmakers sacrifice one needy group of students for another.

 

Revelations Show Trump Immigration Policy Was Supposed To Be Harsher

Forbes: In a new book describing her years during the Trump administration, former Education Secretary Betsy DeVos revealed a plan by Stephen Miller to identify children at school for deportation under the pretext of checking for gang members.

 

Feds Agree To Improve Emergency Shelters For Migrant Kids

Law360: The Biden administration has agreed to impose new living and sanitary standards on temporary emergency facilities housing hundreds of migrant children to resolve advocates’ claims that it was holding minors in unsafe and unsanitary conditions.

 

Louisiana immigration judges denied 88% of the asylum cases between 2016 and 2021: here’s why

The Advocate: Immigration judges in Louisiana have denied asylum claims at a higher rate than almost any other courts in the nation over the past five years, according to federal data. However, a new federal rule might downsize their role in asylum proceedings.

 

LITIGATION & AGENCY UPDATES

 

The 4 remaining Supreme Court cases of this blockbuster term

CNN: The justices are considering whether the Biden administration can terminate a Trump-era border policy known as “Remain in Mexico.” Lower courts have so far blocked Biden from ending the policy.

 

SCOTUS sends B-Z-R- Mental Health PSC Case back to CA10

SCOTUS: The petition for a writ of certiorari is granted.  The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Tenth Circuit for further consideration in light of Matter of B-Z-R-, 28 I&N Dec. 563  (A.G. 2022).

 

Matter of Nchifor, 28 I&N Dec. 585 (BIA 2022)

BIA: A respondent who raises an objection to missing time or place information in a notice to appear for the first time in a motion to reopen has forfeited that objection.

 

3rd Circ. Rejects Immigration Ruling Over Pa. Eluding Law

Law360: A Dominican man got a new chance to fight his deportation on Tuesday when the Third Circuit ruled that his felony conviction under Pennsylvania’s fleeing and eluding law didn’t necessarily amount to a crime of moral turpitude.

 

CA5 on Statutory Birthright Citizenship: Garza-Flores v. Mayorkas

LexisNexis: For years, Petitioner Javier Garza-Flores did not believe he had a valid claim to U.S. citizenship. But now he thinks that he does. And he has presented documentary evidence sufficient to demonstrate, at a minimum, a genuine issue of material fact concerning his claim of U.S. citizenship. That is enough to warrant a factual proceeding before a federal district court to determine his citizenship.

 

CA7 Menghistab v. Garland

CA7: The Board’s main quibble was with the relevance of that evidence to an Ethiopian citizen, which it assumed Menghistab to be. But that assumption was not warranted on the record that was before the Board. Denying the motion to reopen without a full hearing addressing Menghistab’s citizenship and its materiality to his risk of torture was therefore an abuse of discretion.

 

9th Circ. Says BIA Erred In Not Considering All Torture Risks

Law360: The Ninth Circuit on Friday granted a Salvadoran’s request to have the Board of Immigration Appeals review claims that he would be tortured if sent back to the Central American country, saying the board originally failed to consider all possible risk sources.

 

CBP Settles FOIA Suit Over Foreign Pot Workers Policy

Law360: U.S. Customs and Border Protection and Davis Wright Tremaine LLP have settled a Freedom of Information Act suit the firm filed over reports the agency decided Canadian cannabis workers weren’t eligible to enter the U.S., which led to an overturned internal document contradicting officials.

 

Construction Worker Reported To ICE Wins $650K At Trial

Law360: A Boston federal jury has found a construction company and its owner liable for retaliating against an employee by reporting him to immigration authorities after his on-the-job injury triggered a workplace investigation, awarding $650,000 in damages.

 

INA 212(a)(9)(B) Policy Manual Guidance

USCIS: A noncitizen who again seeks admission more than 3 or 10 years after the relevant departure or removal, is not inadmissible under INA 212(a)(9)(B) even if the noncitizen returned to the United States, with or without authorization, during the statutory 3-year or 10-year period

 

Biden administration halts limits on ICE arrests following court ruling

CBS: While the suspension of ICE’s arrest prioritization scheme is unlikely to place the country’s estimated 11 million unauthorized immigrants in immediate danger of being arrested, the absence of national standards could lead to inconsistent enforcement actions across the U.S., including arrests of immigrants whom agents were previously instructed not to detain, legal experts said.

 

ICE’s Enforcement and Removal Operations COVID-19 Pandemic Response Requirements

ICE: Deletion: The new facility status determination framework replaces the language limiting population capacity to 75%.

 

RESOURCES

 

 

EVENTS

 

NIJC EVENTS

 

 

GENERAL EVENTS

 

 

To sign up for additional NIJC newsletters, visit:  https://immigrantjustice.org/subscribe.

 

You now can change your email settings or search the archives using the Google Group. If you are receiving this briefing from a third party, you can visit the Google Group and request to be added.

 

Elizabeth Gibson (Pronouns: she/her/ella)

Managing Attorney for Capacity Building and Mentorship

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

224 S. Michigan Ave., Suite 600, Chicago, IL 60604
T: (312) 660-1688| F: (312) 660-1688| E: egibson@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

 

 

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Stephen Miller Monster
Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com
  • According to a new book from former Trump Education Secretary Betsy DeVos:

“Over the din of patrons slurping lattes and crunching salads, Miller’s men described a plan to put U.S. Immigration and Customs Enforcement (ICE) agents into schools under the pretext of identifying MS-13 gang members. The plan was, when agents checked students’ citizenship status for the alleged purpose of identifying gang ties, they could identify undocumented students and deport them. Not only was the prospect of this chilling, but it was also patently illegal. Nate and Ebony turned them down cold. But that didn’t stop Stephen Miller from subsequently calling me to get my thoughts on the idea. 

  • For years, the BIA has had standard practice of giving short shrift to potentially valid claims for protection under the Convention Against Torture (“CAT”). Without meaningful analysis they simply cite John Ashcroft’s infamous “no CAT precedent” in Matter of J-F-F-,  23 I&N Dec. 912 (A.G. 2006), requiring that “each link in the chain of torture be proved to be probable.” 

Since there is almost always some allegedly “weak link in the chain” that’s an “easy handle” for denial.  Also, The IJ and the BIA can “lengthen the chain” or ignore the evidence as necessary to “get to no.” In the process, compelling evidence of likelihood of torture from qualified expert witnesses is either ignored or minimized — again, without much analysis. That’s how the “denial factory” in Falls Church can keep churning out CAT rejections even to countries where torture is rampant and either furthered or willfully ignored by the repressive governments.

At least in the 9th Circuit, the BIA will now have to go “back to the drawing board” for denying CAT and returning  individuals to countries where torture with government participation or acquiescence is likely. The 9th Circuit case rejecting the BIA’s “formula for denial” is Velasquez-Samayoa v. Garland. Here’s a link in addition to the one provided by Elizabeth.  https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca9-on-cat-velasquez-samayoa-v-garland

  • Louisiana has long been one of a number of EOIR “courts” — these are actually “prison courts” — where “asylum cases go to die.” The deadly combination of bad Immigration Judges, lack of skilled immigration attorneys able to take these cases pro bono, coercive use of detention in out of the way places in substandard conditions, a “denial oriented” BIA stacked by the Trump DOJ and not “unstacked by Garland,” and an indolent, often virulently anti-asylum 5th Circuit add up to potential death sentences for individuals who could gain protection under a system where due process and fundamental fairness were respected and followed.

As the report in The Advocate referenced by Elizabeth shows, Garland has failed to reform and improve this blot on American justice. And, there is little chance that assigning the cases to USCIS Asylum Office in the first instance under new regulations in this intentionally toxic environment is going to promote justice or efficiency. 

One might view the wide discrepancy between “positive credible fear findings” and asylum grants in Immigration Court as a sign of a sick and dying EOIR, not lack of merit for the claims. With less detention, more representation, better Immigration Judges, and a new BIA of true asylum experts willing to grant protection rather than “engineer rejection,” I’ll bet that many, perhaps a majority, of the outcomes would be more favorable to applicants. 

As noted by Mitch Gonzalez of the SPLC in the article, “dehumanization,” “de-personification,” and “Dred Scottification,” along with cruelty are the objects of what’s going on at EOIR in Louisiana. The “fit” with the Trump/Miller White Nationalist anti-immigrant program is obvious. What’s less obvious is why Garland and the Biden Administration haven’t intervened to make the necessary changes to restore EOIR in Louisiana and elsewhere to at least some semblance of a fair and impartial “court system.” 

🇺🇸Due Process Forever!

PWS

06-28-22

INSIDE THE NEW AMERICAN GULAG, AN AMERICAN HEROINE 🦸‍♀️ STANDS TALL:  Courageous Defender Of American Justice Sarah Owings, Esquire, Fights For The Lives & Human Dignity Of Some Of Our Most Vulnerable Humans Caught Up In Trump Regime’s Unconstitutional, Perverse, Wasteful, “Detain, Dehumanize, Deport” Debacle! — Sometimes, She (& Justice) Prevail!

Sarah Owings
Sarah Owings, Esquire
Partner
Owings & MacNorlin
Atlanta, GA
Gabby Del Valle
Gabby Del Valle
Immigration Reporter

https://www.theverge.com/21408606/ice-immigrant-detention-centers-video-chats-deportation-refugees-asylum

Gabby Del Valle reports in The Verge:

. . . .

Owings had left Monroe decades earlier to attend a small liberal arts college in Tennessee, where she studied English and Russian. After graduation, she moved to Georgia, where she worked as a preschool teacher for a year before going to law school. During her first seven years as an immigration attorney, she fought for her clients in Atlanta’s notoriously punitive immigration courts.

“For a long time, that was the only place I saw how things worked,” she said, “so I thought it was normal for a judge to be like, ‘Fuck you.’ Because that’s how things are here.”

Owings began taking cases in more isolated parts of the state. Almost every month, she drove 150 miles south of Atlanta, deep into rural Georgia, to visit clients detained at the Stewart Detention Center in Lumpkin. Stewart had opened in 2006, a year before Owings got her license. When it opened, the facility was so remote that it didn’t have a court of its own. The Executive Office for Immigration Review (EOIR), the federal agency that oversees the nation’s immigration courts, had yet to find judges who wanted to live in Lumpkin, a rural town of fewer than 2,000 pockmarked by vacant storefronts, where there are more immigrant detainees than actual residents. While it scrambled to bring the legal system to rural Georgia, the agency came up with a high-tech solution. Since it couldn’t get judges to come to Lumpkin, it would bring the detainees to Atlanta — not physically, but through videoconference.

Owings could have fought her clients’ cases remotely, too, from Atlanta, but it was important to be with them in person. For most of a decade, she worked this way: Atlanta, Lumpkin, court, new cases, asylum granted — or, more likely, denied.

Ten years and two presidential administrations later, the virtual courtrooms Owings had fought against had expanded to her hometown. Under President Trump, a crop of new detention centers began opening up in Louisiana in 2018 and early 2019, just a few hours from Monroe. “I was mad at my state, my home state, for having allowed this to happen,” she said. Owings expanded her practice to Louisiana in spring 2019 and started flying down to Monroe and crashing at her parents’ house the night before hearings.

In Lumpkin, Owings had seen firsthand how the government used rural, isolated detention centers to warehouse immigrants out of sight, far from their families, their lawyers (if they had any), and from anyone who might care about what happened to them. She had seen how private prison companies wooed local officials, convincing them that turning vacant local jails into immigrant detention centers would reverse decades of economic stagnation. The big business of detainees would save Louisiana’s dying towns.

But Owings understood the cost of opening detention centers. “We have these small jurisdictions that bit down on a dirty nickel hard because they’re starving for money. And so they’re going to lock up a bunch of humans in these conditions,” she said. “There’s going to be civil rights violations, there’s going to be medical neglect, there’s going to be terrible things that happen, and people are going to be put into these little boxes and forgotten about so that they can be disposed of as quickly as possible and made as miserable as possible through the process.”

As Immigration and Customs Enforcement’s (ICE) network of detention centers spread across the state, Owings’ fears quickly materialized. Like the immigrants she represented in Georgia at the beginning of her career, the people imprisoned in Louisiana are kept hundreds of miles away from lawyers and advocacy organizations that could help them — and now, even from the judges who determine whether they can stay in the country.

One of those jurisdictions is Winn Parish, a rural community in northern Louisiana, an hour-and-a-half drive from Owings’ childhood home. In 2019, the local government agreed to convert a local prison into an ICE detention center. That facility, the Winn Correctional Center, is where Samuel spent four of his six months in federal custody.

. . . .

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

Read Gabby’s complete article at the link, including the unusual “happy ending” for “Refugee Samuel.”

What was the point of Samuel’s detention? Of course, there wasn’t any! No legitimate point anyway!

He wasn’t a danger to society, and he wasn’t a “flight risk,” particularly with Sarah Owings representing him. The real reason was to punish him for seeking legal refugee, to coerce him into giving up his claim, and also to harass Owings by making her life more difficult. Unpleasant as Immigration Court tries to be these days, representing someone in detention in the middle of nowhere can be even worse. What a waste of taxpayer money that could be used to address pressing problems!

I feel for the residents of places like Winn Parish. Certainly, if we put our heads together, we could help them come up with some type of economic development that would use their skills and work ethic, without exploiting the human misery of others. Maybe these are the types of ideas that both immigrant entrepreneurs and immigration/human rights advocates have to work on along with Americans in economic distress. Perhaps refugees like Samuel, creative, courageous folks who have had to “reinvent themselves” in a strange land could help out!

Last night, I was on a “Zoom Seminar” dealing with the lessons from the Netflix series “Immigration Nation.” One of my fellow panelists was a doctor from Cuba who had spent a lengthy time in DHS detention and been treated badly before finally being granted asylum with the help of counsel.

Nobody in the audience could fathom why their taxpayer dollars had been used to unnecessarily detain and abuse this talented individual Obviously, she was neither a security nor a flight risk. Rather, her presence in the U.S. as a recognized refugee benefits both her and our country.

We had to explain to the audience that immigration detention these days has more to do with punishment, coercion, and a race-driven White Nationalist immigration agenda than it does with any legitimate governmental purpose. The “New American Gulag” is just another par of the Trump regime’s false immigration narrative that neither Congress nor the Article III courts have bothered to critically examine.

In some ways, Sarah and Samuel might have caught a break; apparently the San Diego Immigration Judge both understood asylum and protection laws and was unafraid to go against “Billy the Bigot’s” preferred result of deny everything. Hats off to that Immigration Judge for courageously “doing the right thing” even in the face of political pressure to cut corners and railroad refugees out of the country without due process!

All to often, the highly politicized EOIR“Home of The American Star Chamber” stocks detention center “courts” with judges whom they believe to be predisposed to the White Nationalist “deny, discourage, disparage, and deport” program. Seldom are they disappointed; at most detention center “kangaroo” courts the denial rates hover close to 100%.

Adding insult to injury, some of the worst judges, with horrible public reputations for unfair and rude treatment of asylum seekers and their attorneys, and astronomical asylum denial rates, were actually promoted by “Billy the Bigot” to his wholly owned and highly biased appellate “tribunal,” known as the BIA. Some of these unqualified judges were from the Atlanta Immigration Court, whose attitude toward refugees and their attorneys was accurately portrayed by Owings as “so I thought it was normal for a judge to be like, ‘Fuck you.’” 

Advocacy groups have made a well-documented case for Atlanta as an “asylum free zone.” Its “judges” apparently revel in that reputation. So much so, that Billy the Bigot seeks to make Atlanta the “model” for his entire unconstitutional “court system” that isn’t a “court system” in any normal sense of the word — except, perhaps, in as the term would be used in a corrupt third-world dictatorship.

Many thanks to Sarah Owings for dong this work and for doing it so well and faithfully under such difficult circumstances. You are truly an “American heroine,” Sarah!

To state the obvious, a system run in accordance with our Constitution, that honored human dignity, and that actually sought “full due process with efficiency” would have dedicated due process, practical-solution-oriented individuals like Sarah on a new, independent, Article I Immigration Bench. Additionally, the immigration appellate level is sorely hurting for judges with the necessary qualifications. 

I hope that the day won’t be far off when Sarah and many of her courageous and multi-talented colleagues in the “New Due Process Army” will assume their proper roles on the Federal Bench and in the immigration policy apparatus. 

The inexcusable national disgrace and abrogation of justice taking place in Atlanta, Lumpkin, Jena, Winn Parish, and many other “Immigration Star Chambers” is helping to fuel the continuing racial injustices in Minneapolis, Milwaukee, Memphis, Rochester, and numerous other locations throughout our nation. 

“Dred Scottification” is all about “dehumanization of the other before the law.” The failure of the Article III Judiciary, starting with the feckless Supremes, and our inept Congress to put an end to these racist-inspired abuses in Immigration Court and elsewhere is a national tragedy of the highest and most debilitating proportions: One that is literally ripping our country apart. 

It also shows why we need a new, diverse, representative, progressive Federal Judiciary with judges committed to due process, equal justice, racial justice, and social justice. We’re a long way from that now; and the existential struggles our nation is experiencing at all levels, and the scandalous inability of our institutions competently to solve problems in a constructive manner, shows why change and progress must start sooner rather than later!

Due Process Forever!

PWS

09-09-20

FRANZ KAFKA’S AMERICA: At the “Jena Gulag” Everyone’s A Criminal Including Attorneys Committing The “Crime” Of Representing Their Clients!

https://lawprofessors.typepad.com/immigration/2019/06/guest-post-m-isabel-medina.html

M. Isabel Medina
M. Isabel Medina
Attorney

From ImmigrationProf Blog:

Escobedo v. Illinois(1964) – I remember the case from law school and it is one of those cases that stay with you.  It’s a case that spoke so firmly to our profession and the constitutional right that our profession guards – the right to counsel.   It’s the case where the attorney is trying to see the client, and the client keeps asking to see the attorney, and they are both at the police station, but the police continue to deny both the ability to meet and talk before the person is interrogated by police.  The case fascinated me because the situation seemed so remarkable, really, incredible, and, of course, the Supreme Court, at that time, gave what I thought the correct response.  I still think it is the correct response but what I missed then, and sometimes now, is how many of us think, then and now, it was not.  But Escobedo is a Sixth Amendment case that applies in the context of criminal prosecutions so although I have thought of it often in the past three weeks, it is uncertain precedent to rely on in the context of immigration proceedings.  It also strikes me now who Escobedo is, and I remember when we first discussed this case in law school, the complete absence of a discussion about his race and national origin, in the classroom.

I also think often of Fong Yue Ting v. United States (1893) and the U.S. Supreme Court’s reasoning that “The order of deportation is not a punishment for crime,”  And what this reasoning means in a world where persons are incarcerated, prevented from touching, hugging and kissing their closest relatives, including their children, simply because they are immigrants in removal proceedings (a civil process, the Court continues to tell us – not a criminal process) and where persons are not allowed to meet with their attorneys in a room in which they can go over documents or testimony together, but instead meet only in cubicles that are completely separated from each other except for a quarter inch slit at the bottom of a plastic/glass divider.  So it is literally physically impossible to point at a statement in a document and ask the client a question about that statement.  And it is in fact physically impossible for a client to hand over to their attorney documents.  They have to be taken apart and slipped across through that quarter inch slit.  It took a client over an hour to slip over to me part of the file.

Jena

This is the world at La Salle Detention Center in Jena, Louisiana, one of the Geo owned and managed detention centers in Louisiana that currently houses only immigrant detainees. But the guards at La Salle know better – they are housing criminals at La Salle and the guards think of them as criminals, call them criminals, and treat them like criminals.  Criminals, apparently, are undeserving of any kind of protection. The reason for the cubicle, I am told, is to make impossible the passing of contraband.  I ask what contraband.  I ask further, by attorneys?  Attorneys are bringing in contraband?  I ask amazed.  And the answer I am given is yes, you’d be surprised.  And I persist, What?  What kind of things are attorneys bringing in?  And the answer I get eventually is things like food.

At La Salle, inmates are separated and designated by clothing of different colors into different groups based on their alleged “dangerousness” or “security.” Inmates are written up for asking questions or making requests or complaining about things like missed mail or failures to deliver mail.  Inmates are also restricted in accessing outside time, private time, and so many of the things those of us who are free take for granted, and those of us who are committed to serve a criminal sentence are denied.  But these “inmates” aren’t serving a criminal sentence, as I remind the guards.  They are civil detainees – they are not supposed to be treated like criminals serving a criminal sentence.

At La Salle, civil detention is criminal detention.   I have had greater physical access to persons convicted of murder or persons who’ve been accused of criminal offenses.  I’m somewhat nonplussed by the restrictions on meeting with someone who is facing removal from this country; and the impact of those restrictions on their right to counsel.

But I am even more nonplussed when those restrictions start being applied directly to me. In order to see a client, I have to turn my car keys in to the facility.  I cannot take my bag or purse with me.  This is for my safety I am told.  Every time I visit a person at La Salle, I ask for access to the person.  I know there is a room at La Salle in the visiting area that allows for that.  I know that the facility has made this room available to consular officials visiting persons in the facility.  But the facility refuses to make this room available for attorney-client visits.  I ask every time and am refused every time.  I leave multiple phone messages for the Warden but no one ever calls me back and no one with authority ever agrees to talk to me.

When I come for the hearing at La Salle Immigration Court with the family of a person I am representing, the guard refuses to allow the children of the person into the courtroom. I ask why not. Federal policy is that children 12 and older can attend court proceedings.  There are signs in the waiting room at the facility that state this.  But when I come with six law students and the family, the officer says no they have to be 15 and older (after looking the children over).  So I ask why again.  I explain that I’ve checked with the Court administrator and federal guidelines and the ICE–ERO on the case and the Court administrator said the children were allowed to attend.  No one had indicated otherwise.  So the officer goes off to check with someone.  When she returns she says the ICE officer in charge of the facility has determined that the children cannot go in.  I ask why?  She says that’s what he’s decided.  I say may I speak to him.  That is not consistent with the federal policy and the court administrator approved it.  I’d like to speak to him.  She goes out again and comes back a bit later.  Then a person not in uniform comes in waves to me and takes me into a bigger office.  There he proceeds to threaten me with arrest – first, it sounds like he is going to arrest me himself but then he threatens that he is going to call the sheriff and have the sheriff arrest me.  I ask him why he would do that.  I am just trying to find out why the children can’t attend the hearing, given that it’s federal policy and I’ve gotten approval of the court administrator.  He is physically shaking with anger as he tells me again he is going to call the sheriff and have me arrested.  I agree to be arrested but remind him that the facility operates by force of law and regulation – it can’t operate as if law doesn’t apply here.  I am an attorney, I explain, I have to be able to assert my client’s interests. 

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

Who are the “real criminals” here?

It takes lots of corruption, cowardice, and complicity to make this happen:  A Congress that doesn’t care, a Supreme Court that disingenuously manufactures ridiculous legal fictions and turns a blind eye to glaring Constitutional violations, Article III Courts who can see that the results are inherently biased, coercive, and unfair but look the other way, a thoroughly corrupt Attorney General who has no interest whatsoever in justice, complicit politicos and bureaucrats at DOJ, EOIR, and DHS willing to violate ethical standards and their oaths of office, and those minions at the “bottom of the pyramid” who glory in the chance to exercise power in an arbitrary and abusive way.  

Thanks goodness for dedicated, courageous lawyers like Isabel who are members of the “New Due Process Army,” fight for the legal rights of the most vulnerable among us, refuse to give in to the oppressors, and document and expose the vileness and lawlessness of the Trump Administration and its many enablers and retainers like Geo and its guards.

Your tax dollars at work!

PWS

06-11-19

 

DUE PROCESS MOCKERY: DOJ’s Secret Gulag Courts Undermine Fairness — Individuals Duressed Into Surrendering Rights!

https://www.theguardian.com/us-news/2017/jun/07/donald-trump-immigration-court-deportation-lasalle?CMP=Share_iOSApp_Othe

 reports in The Guardian:

“Behind two rows of high fencing and winding coils of razor wire, and surrounded by thick forest in central Louisiana, hundreds of miles from the nearest major city, stands a newly created court the Trump administration hopes will fast-track the removal of undocumented immigrants.

Hearings take place in five poky courtrooms behind reinforced grey doors where the public benches, scratched with graffiti, are completely empty. There is no natural light. The hallways are lined with detainees in yellow jumpsuits awaiting their turn before a judge. The five sitting judges were quietly flown in by the US justice department from cities across the United States and will be rotated again within two weeks.

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This is the LaSalle detention facility that, since March this year, has been holding removal proceedings for hundreds of detained migrants in courtrooms adjoining a private detention center, which incarcerates more than 1,100 men and women and has the highest number of prisoner deaths of any in America over the past two years.

The new setup is part of Donald Trump’s attempts to ramp up deportations by vastly expanding the arrest powers of federal immigration enforcement and prioritising more vulnerable groups of detained migrants in new court locations around the country. It has received little scrutiny since its introduction following a presidential order in January, and the Guardian is the first news organisation to observe proceedings here.

Inside courtroom No 2, during proceedings last Wednesday, Judge Arwen Swink, who usually sits in San Francisco, presided over a crowded morning docket. In an indication of the hastily arranged nature of the setup, the judge’s name was printed out on a piece of paper and stuck to a door behind her, the courtroom also functioning as a makeshift office, complete with a photocopier and in-trays attached to the wall.

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Marcos Ramirez Jr, sat alone before the judge, listening through a headset as a translator interpreted proceedings in Spanish. The court heard how the Guatemalan national had lived in America for almost four decades after crossing the border into the US in 1980. He had been with his wife in Alabama for 15 years and had no criminal history.

In April, Ramirez was apprehended by law enforcement for allegedly driving recklessly and without a license. The charges were enough to see him transferred to immigration detention. At a hearing earlier in May, he had been offered a bond of $7,000 but told the court on Wednesday he had no ability to pay it.

“It has been two weeks since I heard from my wife,” he said, his head cradled in his hands. “She has stage three cancer.” Ramirez had no idea if she was now in hospital or, by extension, whether she was alive or dead.

As things stood, without the money to pay for his bond, he would remain in detention until his full hearing, known as a merits hearing, where his chance of being ordered to be deported was much higher than if he had been released on bond and gone to trial at another non-detained court, according to studies of official data.

This building is operated by the Department of Homeland Security (DHS) and had never functioned as a court. Before March, the five rooms were used for video conferencing, allowing detainees to appear via video-link in preliminary hearings at an established immigration court (that now technically administers the court at LaSalle) in the small city of Oakdale 90 miles away.

A court room at the LaSalle detention facility.
A court room at the LaSalle detention facility. Photograph: Whiteconst.com

Lawyers and advocates say the new system increases the risk of due-process violations as cases move more rapidly through the system, at a remote venue that already has the lowest rate of legal representation for detainees in the US. The union representing immigration judges, meanwhile, argues that reassigning judges from around the US where courts are already chronically overburdened is simply a waste of resources.

The justice department’s executive office for immigration review (EOIR), which administers America’s immigration courts, declined to respond to a list of detailed questions about the new court.

The Guardian was also prevented from viewing the LaSalle court’s public docket, which had previously been printed out and displayed outside the courtrooms but removed on the day of the visit. The Guardian was instructed by a court officer, employed by private security firm GEO Group, that court clerks and administrative staff – public employees – would not take any questions for clarification. This meant that basic fact-checking, including the spelling of detainees’ names, could not always be completed.

Deportation without representation

In a number of ways, Ramirez’s story was typical of many of the 43 cases brought before judges that day.

Numerous hearings observed by the Guardian last Wednesday involved people who had been apprehended by law enforcement after allegedly committing minor traffic offenses. One individual, Osmani Radiya, appearing before Judge Patrick Savage, also on detail from San Francisco, had been arrested after accidentally reversing into a parked van allegedly under the influence. The father of three, two of his children US citizens, had no driver’s license or insurance documents and wound up in detention facing deportation.

Another, 21-year-old Diego Garcia, who appeared before Judge Margaret McManus (detailed from New York), had been picked up in Arkansas after driving without a license and providing a false name to police. “I’d like to apologise for what happened, it won’t happen again,” Garcia told the court. Both men were granted bond.

In the Trump administration’s first 100 days the number of immigration arrests have soared, with the sharpest increase among those with no criminal record. The LaSalle detention facility, which holds both men and women, serves as a major hub for arrestees from many of the southern states.

Paul Scott, an immigration attorney who has represented clients detained at LaSalle for nine years, characterised the new system as “taking a large mallet and trying to hit a small nail”.

“This fast-track system is now being backed up by less dangerous people who actually might have stronger cases [for relief from removal],” he said. “It’s not a very smart or precise plan.”

While the administration may have ramped up arrests, the number of people it has actually been able to deport has remained relatively consistent with the past two years of the Obama administration.

But Ramirez’s case was also typical in another manner: he had no lawyer representing him.”

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Read the complete report at the link.

This should be a wake-up call for all Americans who care about Constitutional due process, fundamental fairness, and national values. American’s largest Court System is held “captive” within the U.S. Department of Justice.

In reading the testimony of former FBI Director Comey today,  I was struck by his double-talk about an “independent” Department of Justice and FBI. As pointed out by Allen Dershowitz and others, the U.S. Constitution does not provide for an independent DOJ. Perhaps it should have, but it doesn’t. As an Executive Branch Agency, the DOJ is, and always has been, subject to political shenanigans. No “court system” operating within the DOJ can possibly provide fairness and due process in all cases.

Moreover, the DOJ has clearly established over the past 16 years its total administrative incompetence to run a high volume court system. 600,000 pending cases and not a clue of how they might actually be completed consistent with due process! Indeed, the officials at the DOJ who are “pulling the strings” of the Immigration Court don’t have the faintest idea of what happens at the “retail level” or how to operate a fair and efficient court system.

The Trump Administration’s misuse of the U.S. Immigration Courts to deny, rather than protect, due process is just the disgraceful end product of a “built to fail system.” America needs an independent U.S. Immigration Court.

Thanks to Nolan Rappaport for sending this my way.

PWS

06-08-17