🏴‍☠️☠️🤮  “THE END OF ASYLUM” — IGNORING THE ADVICE OF ASYLUM EXPERTS AND PROGRESSIVE DEMS, BIDEN ADMINISTRATION SEEKS TO FINISH THE TRUMP/MILLER WHITE NATIONALIST PROGRAM TO KILL ASYLUM AT THE BORDER, WHERE IT IS MOST NECESSARY & GUARANTEED BY STATUTE — Like Trump & Miller, Biden Plans To Strangle ⚰️ Asylum By Evading & Bypassing Statute W/O Legislation — Experts Planning “War Of Resistance” To Administration They Helped Elect, But Now Turns Its Back On Humanity!

Trump Dumping Asylum Seekers in Hondras
Legal asylum seekers from Central America might have thought that cruelty, illegality, and stupidity went out with the Trump Administration. They were wrong! Now Biden proposes to lawlessly “presume denial” of asylum — with no legal basis — and dump legal asylum seekers of color from his “disfavored nations” back into Mexico, whose asylum system is dysfunctional and where abusive treatment of asylum seekers has been well documented and recognized by a Federal Court! Women suffering from gender-based persecution are particular targets of this Administration’s campaign against humanity!
Artist: Monte Wolverton
Reproduced under license

Many groups issued immediate statements of outrage and protest at this cruel, lawless, and intellectually dishonest betrayal! I set forth two of them here:

From the American Immigration Council:

  • PRESS RELEASE

Department of Justice and Department of Homeland Security Release Details of Dangerous New Asylum Transit Ban

February 21, 2023

Last modified:

February 21, 2023

WASHINGTON, Feb. 21, 2023—Today, the U.S. Department of Justice and the U.S.  Department of Homeland Security released a Notice of Proposed Rulemaking (NPRM) that will implement a new asylum transit ban—one of the most restrictive border control measures to date under any president. The policy will penalize asylum seekers who cross the border irregularly or fail to apply for protection in other nations they transit through on their way to the United States.

As described in the NPRM, the proposed asylum transit ban rule would all but bar asylum for any non-Mexican who crosses the U.S.-Mexico border between ports of entry, unless they had previously applied for—and been denied—asylum in another country before arrival.

Specifically:

  • The rule would apply to all non-Mexican migrants (except unaccompanied minors) who had not been pre-approved under one of the Biden administration’s parole programs, which are currently open only to certain nationals of 5 countries; pre-register at a port of entry via CBP One or a similar scheduling system (or arrive at a port of entry and demonstrate they could not access the system); or get rejected for asylum in a transit country.
  • During an asylum seeker’s initial screening interview with an asylum officer, the officer will determine whether the new rule applies to them. If so, they will fail their credible fear screening unless they can demonstrate they were subject to an exception such as a medical emergency, severe human trafficking, or imminent danger—which would “rebut the presumption” of ineligibility.
  • Migrants subject to the rule, who do not meet the exceptions above, would be held to a higher standard of screening than is typically used for asylum (“reasonable fear”). If a migrant meets that standard, they will be allowed to apply for asylum before an immigration judge—although the text of the proposed regulation is unclear on whether they would actually be eligible to be granted asylum.
  • Migrants who do not meet the credible or reasonable fear standard can request review of the fear screening process in front of an immigration judge.

Once the regulation is formally published in the Federal Register, the public will have 30 days to comment on the proposal. The administration is legally required to consider and respond to all comments submitted during this period before publishing the final rule, which itself must precede implementing the policy. Given the Biden administration’s expectation that the new rule will be in place for the expiration of the national COVID-19 emergency on May 11, and the potential end of the Title 42 border expulsion policy at that time, the timeline raises substantial concerns that the administration will not fulfill its obligation to seriously consider all comments submitted by the public before the rule is finalized.

Furthermore, the sunset date for the new rule, two years after it becomes effective, is after the end of the current presidential term—making it impossible to guarantee it will not be extended indefinitely.

In 2020, a Ninth Circuit Court of Appeals panel blocked the Trump administration’s asylum transit ban from being applied to thousands of asylum seekers who were unlawfully prevented from accessing the U.S. asylum process. The ban was later vacated by the D.C. District Court.

The American Immigration Council was a part of the Al Otro Lado v. Wolf class action lawsuit on behalf of individual asylum seekers and the legal services organization Al Otro Lado (AOL), which challenged the legality of the previous asylum transit ban as applied to asylum seekers who had been turned back at the U.S.-Mexico border.

Jeremy Robbins
Jeremy Robbins
Executive Director
American Immigration Council
PHOTO: AIC websitel

The following statement is from Jeremy Robbins, Executive Director, The American Immigration Council:

“President Biden committed to restoring access to asylum while on the campaign trail, but today’s proposal is a clear embrace of Trump-style crackdowns on asylum seekers, many of whom are fleeing from globally recognized oppressive regimes. For over four decades, U.S. law has allowed any person in the United States to apply for asylum no matter how they got here. The new proposed rule would all but destroy that promise, by largely reinstating prior asylum bans that were found to be illegal.

“Not only is the new asylum transit ban illegal and immoral, if put into place as proposed, it would create unnecessary barriers to protection that will put the lives of asylum seekers at risk. While the rule purports to be temporary, the precedent it sets—for this president or future presidents—could easily become permanent.

“For generations, the United States has offered a promise that any person fleeing persecution and harm in their home countries could seek asylum, regardless of how they enter the United States. Today’s actions break from his prior promises and threaten a return to some of the most harmful asylum policies of his predecessor—possibly forever.”

###

For more information, contact:

Brianna Dimas 202-507-7557 bdimas@immcouncil.org

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

From the Lutheran Immigration & Refugee Services:

FOR IMMEDIATE RELEASE
February 21, 2022
Contact: Tim Young | tyoung@lirs.org

Washington, D.C. – In preparation for the end of Title 42 asylum restrictions, the Biden administration announced a new proposed rule severely limiting asylum eligibility for those who did not first seek protection in a country they transited through to reach the United States, or who entered without notifying a border agent. The proposed rule will be subject to a 30-day period of public comment before it can take effect.

The new rule mirrors a transit asylum ban first implemented under the Trump administration, which was ultimately struck down by federal judges in multiple courts.  The Immigration and Nationality Act (INA) provides that people seeking protection may apply for asylum regardless of manner of entry, and does not require them to have first applied for protection in another country.

Krish O’Mara Vignarajah
Krish O’Mara Vignarajah
CEO
Lutheran Immigrantion & Refugee Service

In response to the proposed asylum eligibility rule, Krish O’Mara Vignarajah, President and CEO of Lutheran Immigration and Refugee Service, said:

“This rule reaches into the dustbin of history to resurrect one of the most harmful and illegal anti-asylum policies of the Trump administration. This transit ban defies decades of humanitarian protections enshrined in U.S. law and international agreements, and flagrantly violates President Biden’s own campaign promises to restore asylum. Requiring persecuted people to first seek protection in countries with no functioning asylum systems themselves is a ludicrous and life-threatening proposal.

While the Biden administration has launched a smartphone app for asylum appointments and expanded a temporary parole option for an extremely limited subset of four nationalities, these measures are no substitute for the legal right to seek asylum, regardless of manner of entry. It is generally the most vulnerable asylum seekers who are least likely to be able to navigate a complex app plagued by technical issues, language barriers, and overwhelming demand. Many families face immediate danger and cannot afford to wait for months on end in their country of persecution. To penalize them for making the lifesaving decision to seek safety at our border flies in the face of core American values.

We urge the Biden administration to reverse course before this misguided rule denies protection to those most in need of it. Officials must recognize that decades of deterrence-based policies have had little to no impact in suppressing migration. Instead, they should focus on managing migration humanely through expanded parole programs, efficient refugee processing in the hemisphere, and an equitably accessible asylum system.”

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

Lest anyone believe the absolute BS coming from the Biden Administration that they “had no choice” and that this “wasn’t the choice they wanted,” here’s an article setting forth the many southern border solutions that the Administration ignored or was too incompetent to carry out in their dishonest, immoral pursuit of the anti-asylum “vision” of Stephen Miller and other White Nationalists.

💡💡”There’s many things Biden could do. We published a resource called “Forty-Two Border Solutions That Are Not Title 42.” We could have done 142,” says immigration expert Danilo Zak in The Border Chronicle! The Biden Administration has ignored, failed, or is prepared to shrug off most of them!🤯

Danilo Zak
Danilo Zak
Associate Director of Policy and Advocacy Church World Service
PHOTO: The Border Chronicle

Zak was interviewed by Melissa Del Bosque of The Border Chronicle:

There are many changes that the Biden administration and Congress could make to alleviate suffering at the southern border. Immigration policy expert Danilo Zak recently published a report that offers several solutions, from rebuilding the refugee resettlement program to expanding nonimmigrant work visas to more countries in the Western Hemisphere.

Zak, formerly of the National Immigration Forum, is Associate Director of Policy and Advocacy for the nonprofit Church World Service. He spoke with The Border Chronicle about the increase of forcibly displaced people in the Western Hemisphere and the current situation at the border. “For many, there is no line to get into—no ‘right way’ to come to the U.S.,” Zak says.

Melissa Del Bosque
Melissa Del Bosque
Border Reporter
PHOTO: Melissadelbosque.com

Read the full interview here:

https://open.substack.com/pub/theborderchronicle/p/how-to-alleviate-suffering-at-the?r=330z7&utm_medium=ios&utm_campaign=post

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

Notably, better, more robust, use of Refugee Programs established by the Refugee Act of 1980 is among Zak’s “top three.” This is something that I have been “touting” since Biden was elected, but where the Administration has failed to meet the challenge.

And, contrary to what the Administration and others might say, there is nothing unachievable about using refugee programs to deal with emergency humanitarian situations. Also, with respect to cases taking forever to process, no need for that nonsense. It’s a matter of poor bureaucratic execution rather than a defect in the legal authority.

The Refugee Act of 1980 (“RA 80”) is basically a modified version of the “emergency parole, resettle with NGOs, and petition Congress to adjust status” that was used on an ad hoc basis to resettle Indochinese refugees and others on an emergency basis prior to the RA 80. Except, that the criteria, resettlement mechanisms, and adjustment process were all “built in” to the statute. Consequently, although Congress was to be consulted in advance, that process was designed to run smoothly, efficiently, and on an emergency basis if necessary.

While “Congress bashing” is now a favorite pastime of the Executive, Judiciary, and media, in 1980 Congress actually provided a mechanism to regularize the processing of  type of refugee flows now facing the U.S. The statutory flexibility and the legal tools to deal with these situations are in RA 80.

A subsequent Congress even added the “expedited removal” and “credible fear” process so that initial asylum screening could be conducted by expert Asylum Officers at or near the border and those “screened out” would be subject to expedited removal without full hearings in Immigration Court. Clearly, there was never a need for the Title 42 nonsense for any competent Administration.

Basically, if an Administration can run a large-scale parole program, which the Biden Administration did for Afghanistan and is doing now for Cuba, Nicaragua, Venezuela, and Haiti, it can run a legal refugee program beyond our borders, even in a “country in crisis” if necessary. 

The idea that a statutory scheme specifically designed to have the flexibility deal with future mass refugee situations couldn’t be used to deal with the current humanitarian situation in the Western Hemisphere is pure poppycock!

Also unadulterated BS: The Biden Administration’s proposal to make the “end of asylum” at the southern border “temporary,” for two years! In 2025, the Biden Administration might not even be in office. If there is a GOP Administration, you can be sure that the demise of asylum at the border will become permanent, with or without legislation.

Also, what would be an Administration’s rationale for resuming asylum processing at the southern border in two years. Surely, there will be some other “bogus border crisis” cooked up to extend the bars. And, if there is no such crisis, the claim will be that the bars are “working as intended” so what’s the rationale for terminating them.

The argument that complying with the law by fairly processing asylum seekers regardless of race, ethnicity, religion, or manner of arrival, as the law requires, might actually encourage people to apply for protection will always be there — hanging over cowardly politicos afraid of the consequences of granting protection. Fact is, the current Administration has so little belief in our legal system and their own ability to operate within in, and so little concern for the human lives involved, that they are scared to death of failure. That’s not likely to change in two years — or ever!

🇺🇸 Due Process Forever!

PWS

02-22-23

⚖️ABOVE THE LAW: Trump Treated Ethics, Legal Norms, & Human Values Like A Joke — The GOP Supremes Laughed With Him, As They Insured His Lack Of Accountability & Actively Undermined Those With The Courage To Stand Up To Tyranny!🤮

Jacqueline Thomsen
Jacqueline Thomsen
Courts Reporter
National Law Journal

Jacqueline Thomsen reports for the National Law Journal:

. . . .

Even with an emoluments lawsuit filed against Trump on his first day in office, four years later nothing came of it. After he left office, the lawsuits were declared moot by the U.S. Supreme Court and dismissed.

The struggle to legally hold Trump to account over the alleged emoluments violations were emblematic of the rest of the lawsuits he faced during his presidency, whether they targeted him individually or his administration.

When lower courts ruled against Trump officials—as they did in suits over border wall construction—his administration would go to the U.S. Supreme Court to get an emergency order that allowed them to continue the challenged action. More often than not, Trump got a ruling in his favor.

“Trump could count on them for anything,” Norm Ornstein, a conservative resident scholar with the American Enterprise Institute, said of Justices Clarence Thomas and Samuel Alito.

“And certainly that’s the case with Gorsuch, Kavanaugh and Barrett,” he added, referring to the three justices Trump appointed to the court.

And the novel legal questions surrounding lawsuits against a sitting president were enough to significantly delay several other challenges against him. House cases dragged out as courts determined whether lawmakers had the ability to sue to enforce subpoenas against the administration, a legal issue that forced similar suits to halt for months.

Despite two impeachments, hundreds of lawsuits against his administration and other litigation targeting him and his businesses, Trump left office relatively legally unscathed. Armed with a litigious past and a grip on his political party, he successfully managed to use the country’s institutions to minimize the blowback and get his way.

. . . .

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

Those with NLJ access (everyone used to get 3 free articles/mo; now it’s down to one) can read the rest of Jacqueline’s article at the link. She’s a great writer. Too bad so much of her work is “hidden behind the wall.”

Lack of accountability for scofflaw behavior, abuse of power, and corruption are hallmarks of third-world dictatorships and authoritarian regimes throughout history. 

The Supremes’ enabling started with the Travel Ban cases and continued to the Capitol insurrection, which “the complicit ones” were able to watch unfold from their marble palace across the street.

So, the Supremes, the institution whose most important job is to protect American democracy, democratic institutions, due process, and individual rights when the other two branches fail, wasn’t up to the job! Despite the Supremes’ best efforts to undermine democratic governance, and their active furthering of the GOP’s race-driven voter suppression agenda, 81 million voters bailed us out this time around. But, it’s highly unlikely that American democracy could survive another “Trump-type” authoritarian regime. Don’t expect any help from the Supremes as currently comprised.

⚖️🧑🏽‍⚖️Better judges for a better America!🇺🇸🗽

🇺🇸⚖️🗽Due Process Forever!

PWS

03-04-21

“POPPYCOCK!” — Conservative U.S. District Judge Richard Leon “Zeroes In” On Racist, Disingenuous, BS Presented In Court By Trump Regime To Justify “Crimes Against Humanity” Committed Against Asylum Seekers By USG! — Contrasts With Disingenuous Enabling Of Racist Immigration Agenda By Supremes’ Majority! — As Reported By “Legal Clairvoyant” 🔮 Jacqueline Thomsen @ NLJ!

“POPPYCOCK!” — U.S. District Judge Richard Leon’s Characterization Of Trump Regime’s Defense Of Asylum Seeker Abuse By DHS & Barr’s Unethical & Frivolous Arguments!

Jacqueline Thomsen
Jacqueline Thomsen
Courts Reporter
National Law Journal & Legal Clairvoyant

 

https://link.law.com/click/21370303.6876//5162eb9334b9b0a8048a6907C27093cdb

Due Process “Legal Eagle” Jacqueline Thompsen reports for the National Law Journal’:

. . . .

The federal immigration law requires that officers who conduct the interviews—in which migrants must show they face at least a 10% chance of persecution due to certain factors in order to be eligible for asylum—receive significant training on handling the applications

In responding to the administration’s claims that the border patrol agents received similar training as asylum officers, Leon wrote, “Poppycock! The training requirements cited in the government’s declaration do not come close to being ‘comparable’ to the training requirements of full asylum officers.”

“To make matters worse, the January MOA precludes any individual CBP agent from conducting credible fear interviews for longer than 180 days, meaning that CBP agents cannot gain the experience necessary to appropriately apply the complex asylum laws and regulations,” the judge added. “These procedures plainly violate Congress’s requirements.”

The Trump administration has administered a widespread crackdown on asylum proceedings, adopting a slew of policies that make it more difficult for migrants fleeing persecution in other countries to obtain protections in the United States.

The ruling comes in a lawsuit filed by attorneys with Tahirih Justice Center and the Constitutional Accountability Center, on behalf of four mothers and their seven children from Honduras, Ecuador and Mexico seeking asylum in the U.S. All of the migrants failed to pass the credible fear assessment conducted by CBP agents, which were upheld by immigration judges.

Leon also found in Monday’s ruling that it “would certainly seem unlikely” that CBP agent interviews of migrants could be considered to be “nonadversarial proceedings with a neutral decision-maker,” as required under federal regulations and guidelines. He noted that border patrol agents are considered law enforcement, and said federal authorities’ statements on measures they have taken to minimize the possibility of the interviews becoming adversarial “hardly seems sufficient.”

Leon wrote the training requirements for those conducting the credible fear assessments “are essential for a functioning asylum process, which is why Congress required them,” describing the legal framework surrounding U.S. immigration, asylum, and other similar processes as “complex, to say the least.”

“After all, an asylum officer who is not adequately trained in the applicable legal requirements is less likely to ask the right questions of an asylum seeker, or for that matter, to gather the facts necessary to make an accurate determination of whether an asylum seeker has a credible fear of persecution,” he continued. “Indeed, the record here contains several examples of the effects of inadequate training: one CBP agent failed to follow up with questions about an asylum-seeking plaintiff’s sexual abuse, and another failed to inquire into another asylum-seeking plaintiffs husband’s murder investigation.”

Leon also found the immigrants in the case would face irreparable harm, if he did not issue a preliminary injunction to block their removal from the U.S.

***********

Why isn’t it an ethical and professional problem for “Billy the Bigot’s” DOJ to make nonsense arguments to a Federal Judge in support of unlawful actions? Private members of the bar arguing “poppycock” in a civil case could well find themselves referred for disciplinary action. Why are Cabinet Officials and their attorneys exempt from normal professional and ethical considerations?

You can read Judge Leon’s clearly written and cogently reasoned 22-page decision in A.B.-B. v. Morgan here: https://www.courtlistener.com/recap/gov.uscourts.dcd.216698/gov.uscourts.dcd.216698.32.0.pdf.

If only more judges at all levels could write with such clarity and in plain English!

The rejection at the “credible fear” stage of the bona fide asylum claims described by Judge Leon is beyond appalling! These are essentially totally and intentionally unqualified and biased U.S. Government employees committing “crimes against humanity” and getting away with it! These aren’t “legal errors.” It’s systemic malfeasance, otherwise known as “malicious incompetence” with a heavy dose of racism and misogyny thrown in for a good measure!

If substantiated during the immigration hearing process that should have taken place, all these applicants should have been “slam dunk” grants of asylum, withholding of removal, and/or relief under the Convention Against Torture in a properly functioning justice system. Instead, but for the efforts of pro bono counsel, they would have been illegally returned to harm, torture, and/or death with no legitimate process at all!

No wonder “Billy the Bigot’s” Immigration Courts are out of control and the borders are a deadly mess when individuals who with proper screening and access to competent counsel should have been quickly legally admitted to the U.S. under protection laws are instead being “rejected” by biased and unqualified Border Patrol Agents impersonating Asylum Officers!

Here’s my favorite quote (among many) from Judge Leon’s decision: 

Of course, the Government has a strong interest in the “prompt execution of removal orders.” Nken,556 U.S. at 436. However, the Government and public can have little interest in executing removal orders that are based on statutory violations, League of Women Voters of U.S. v. I,{ewby,838 F.3d l,12 (D.C. Cir. 2016) (“There is generally no public interest in the perpetuation of unlawful agency action.”), especially where those statutory violations may compromise the accuracy of such removal orders. R.I.L.-R. v Johnson, 80 F. Supp. 3d 164, 191 (D.D.C. 2015); Grace, 344 F. Supp. 3d at 14144 Indeed, the public has an interest “in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm.” Nken,556 U.S. at 436. As such, the balance of interests here weighs in favor of preliminary injunctive relief.

The last point, “the public has an interest ‘in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm,’” Nken,556 U.S. at 436, has basically been ignored by the Supremes’ majority recently in sending refugees to their death or into harm’s way without any semblance of due process, based on various lies, distortions, and racist schemes by the Trump regime intentionally mischaracterizing “national security” and “national emergency.” As Judge Leon would say: “Poppycock!”

Perversely, the Trump regime and the Supremes’ have made execution of illegal removal orders, resulting from racist White Nationalist schemes, a “national priority.” Truly, this is a system broken from the top down in need of immediate repair and injections of intellectually honesty, moral courage, and ethics — something that seems “out of vogue” in all three branches of our failing democracy these days

I recently had a conversation with Jacqueline in which she basically predicted this decision based on her study of the arguments and trends among U.S. District Judges, regardless of philosophy or appointing party, in DC. Nice going Jacqueline! Congrats on your clairvoyance!

Those with NLJ access (anyone can get “three free” per month by registering) can read the complete article at the link.

Judge Leon’s linear, straightforward, and “no BS” treatment of the regime’s absurdist, unethical, and scofflaw legal “defense” of essentially “crimes against humanity” contrasts sharply with the disingenuous and essentially “brain dead” treatment of similar BS by the “JR Five” on the Supremes. There, the patently unconstitutional and illegal (not to mention immoral) agenda of neo-Nazi racist Stephen Miller and the unethical maneuvers of SG Noel Francisco are often wrongfully rewarded. By contrast, the the Supremes’ majority routinely trashes the legal and constitutional rights of vulnerable people of color, particularly asylum seekers, migrants, and voters beneath an avalanche of bogus “Dred Scottification” jurisprudence.

Additionally, Judge Leon is “onto something” that has been swept under the carpet by the Supremes and the Circuit Courts when he questions “whether CBP agents could ever lawfully be given authority to conduct asylum interviews and adjudicate asylum claims, see Compl. ‘]Tfl 108-09, it would certainly seem unlikely under these circumstances. After all, law enforcement officers typically “function as adversaries” whose role is “to investigate criminal activity, to locate and arrest those who violate our laws, and to facilitate the charging and bringing of such persons to trial.” New Jersey v T.L.O.,469 U.S. 325,349 (1985) (Powell, J., concurring).” 

Similarly, many of us have argued that Immigration “Judges” who work for uber-enforcer and Trump shill “Billy the Bigot” and have been “repurposed” and “weaponized” into DHS enforcement support staff can not possibly be the “fair and impartial” quasi-judicial adjudicators required by the Due Process Clause of the Fifth Amendment!

Better Justices and better Federal Judges for a better America, particularly for people of color and other minorities. It’s actually quite simple and straightforward. It starts with throwing Trump and the GOP out of every political office this Fall. 

Then, we need some real Justices and Federal Judges who will stand against systemic racism and enforce equal justice in America! Not, rocket science! Just knowledge of the Constitution, awareness of human rights and immigrants’ rights, a focus on racial justice, courage to speak truth to power, and a demonstrated commitment to human dignity and human decency. One could easily wonder why those haven’t been the minimal requirements for Federal judicial service in the past.

Past is past, particularly for life-tenured judges. But, America can’t afford any more disastrous judicial appointments, at any level, who lack the guts and human decency to stand up to scofflaw, neo-fascist racists like Trump, Miller, and their cronies. 

The top to bottom overall failure of the American judiciary to put an end to unconstitutional and unfair racism and “Dred Scottification” of “the other” in our society is aiding and abetting the dark, lawless forces aligned with the regime destabilizing our country and ripping it apart! No more!

Due Process Forever!

PWS

08-31-20

🏴‍☠️☠️👎TRUMP SCOFFLAWS THWARTED AGAIN ON ANTI-ASYLUM AGENDA — Has The Kakistocracy Even Read The APA? — Trump’s Judicial Appointee Basically Incredulous That Trump’s Ethics-Free DOJ Would Assert “25 Words In A WashPost Article” As Legal Basis To Repeal 40 Years of Asylum Law Without Proper Notice & Deliberation

https://www.law.com/nationallawjournal/2020/07/01/failure-is-striking-trump-tapped-judge-throws-out-administrations-asylum-restriction/?kw=%27Failure%20Is%20Striking%27:%20Trump-Tapped%20Judge%20Throws%20Out%20Administration%27s%20Asylum%20Restriction&utm_source=email&utm_medium=enl&utm_campaign=newsroomupdate&utm_content=20200701&utm_term=nlj

‘Failure Is Striking’: Trump-Tapped Judge Throws Out Administration’s Asylum Restriction

U.S. District Judge Timothy Kelly panned DOJ attorneys for leaning heavily on a single newspaper article in arguing the asylum restriction was exempt from rulemaking procedures.

By Jacqueline Thomsen July 01, 2020 at 08:37 AM

A federal judge in Washington, D.C., late Tuesday vacated a Trump administration rule that blocked migrants from petitioning for asylum in the U.S. if they were not first denied the protections by other countries they traveled through on their way to the southern border.

U.S. District Judge Timothy Kelly, appointed to the bench by President Donald Trump, issued the ruling nearly a year after he first rejected a temporary restraining order against the restriction. A similar challenge has played out in federal court in California, where the U.S. Court of Appeals for the Ninth Circuit has upheld a preliminary injunction against the rule. The U.S. Supreme Court had previously said the administration can enforce the measure while that court fight played out.

In Tuesday’s ruling, Kelly found Trump officials violated the Administrative Procedure Act by not following the law’s “notice-and-comment” requirement before enacting the rule. He did not address other legal claims made against the policy.

Kelly rejected arguments from Trump Justice Department attorneys that officials could skip the notice-and-comment period for this rule through the APA’s “good cause” exception. Government lawyers said making the rule available for comment before it was implemented could cause a surge of asylum seekers at the border, but Kelly said there was “not sufficient evidence” to meet the exception.

Kelly slammed DOJ attorneys for leaning heavily on an October 2018 Washington Post article in making that argument, finding that the single newspaper article did not provide evidence for their record and there was little other evidence to support their claims.

“Even assuming that the rule was likely to have had a similar effect as the regulatory change described in the article, the article contains no evidence that that change caused a surge of asylum seekers at the border—let alone one on a scale and at a speed that would have jeopardized their lives or otherwise have defeated the purpose of the rule if notice-and-comment rulemaking had proceeded,” Kelly wrote. “In fact, the article lacks any data suggesting that the number of asylum seekers increased at all during this time—only that more asylum seekers brought children with them.”

The judge similarly rejected government charts showing data on border enforcement and encounters for not directly supporting DOJ’s claims.

“At bottom, as plaintiffs point out, defendants—‘despite studying migration patterns closely’—have ‘failed to document any immediate surge that has ever occurred during a temporary pause in an announced policy.’ That failure is striking,” Kelly wrote.

. . . .

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

Those with NLJ access (or who haven’t exhausted their three free articles for the month) can read the rest of Jacqueline’s article at the link. The link to the full decision in CAIR Coalition v Trump is in the excerpt. I’ll have to admit that as an admirer of CAIR’s unrelenting efforts to protect our Constitution and our legal system from Trump’s racist-inspired lawlessness, the caption of this case is particularly fitting and satisfying.

Bravo for U.S. District Judge Timothy Kelly for taking his job as an independent decision-maker and his oath to uphold the Constitution and the laws of the U.S. seriously!

This decision also casts doubt on the judicial integrity of those Supreme Court Justices who ignored the law to “greenlight” this same invalid regulation in the Barr v. East Bay Sanctuary. So far, the lower Federal Courts that have taken time to examine and reflect on the law have found Trump’s action’s unlawful. Makes one wonder why the Supremes’ majority was so overanxious to “get on with the killing” of refugees when the individual interests are life or death while the government interests are fabricated or highly exaggerated, factually inaccurate, pretexts.

When policy is made by Stephen Miller’s racist talking points rather than expert input and honest deliberation involving the common good, bad things are going to happen to those we are supposed to protect, not reject for fabricated reasons.

Still, Trump shouldn’t worry too much. He can still take his bad faith case to the D.C. Circuit where Judge Naomi “Show Me Where to Sign on My Master’s Bottom Line” Rao awaits. And, then there’s the J.R. Five who have shown the willingness and ability to accept almost any kind of unethical BS laid out by outgoing Trump SG Noel Francicso to “stick it to” vulnerable asylum seekers.

How will “The Five” function come October Term without Francisco to relay Trump’s wishes and to feed them thin cover stories that most lawyers would recognize as phony as a three-dollar bill?

Due Process Forever!

PWS

07-01-20

🤡CLOWN COURT REPORT: Dysfunctional “Court” System Notorious ☠️ For Denying Migrants’ Rights Forces Own Judges To Sue In Federal Court To Protect Their Individual Constitutional Rights!  — No Wonder The Mis-Management-Induced Backlogs Are Endless & Growing!

Hon. A. Ashlley Tabaddor
Hon. A. Ashley Tabaddor
President, National
Association of Immigration Judges (“NAIJ”)

https://www.law.com/nationallawjournal/2020/07/01/immigration-judges-to-sue-doj-alleging-unconstitutional-gag-on-speech/

Immigration Judges Sue DOJ, Alleging Unconstitutional Gag on Speech

It’s the latest clash between the immigration judges’ union and the Justice Department, after DOJ officials pushed to decertify the union.

By Jacqueline Thomsen | July 01, 2020 at 09:47 AM

A union of immigration judges is suing the Department of Justice over a policy allegedly restricting them from speaking publicly about immigration and other issues in violation of their constitutional rights, the latest escalation of tensions between the union and the federal department where they work.

The lawsuit, filed Wednesday on behalf of the National Association of Immigration Judges by attorneys with the Knight First Amendment Institute and Virginia attorney Victor Glasberg, says DOJ’s Executive Office for Immigration Review in 2017 began requiring the judges to seek preapproval to speak in their own capacity, and not on behalf of the office.

That was replaced earlier this year with a “more restrictive policy,” which mandates the judges cannot speak publicly about immigration or DOJ policies, and must obtain approval to speak, write or talk with members of the media about any other topic.

The lawsuit notes the policy was implemented during a series of changes in the immigration system and that the immigration judges are “uniquely positioned to inform the public on these issues, but the 2020 policy prevents them from doing so.”

. . .

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

Those with NLJ access (or who haven’t exhausted their three free articles for the month) can read the rest of  Jacqueline’s article at the link.

The “DOJ/EOIR Clown Show” 🤡  rolls, on leaving the public interest in the dust and the road littered with the broken bodies and crushed souls of bona fide asylum seekers and other mistreated migrants.

Really, isn’t this continuing circus and parody of justice supposed to be under “adult supervision?” Obviously, both Congress and the Article III Courts have taken a pass on the role. So, what, in fact, are they good for?

I do understand why those responsible for this mess don’t want to be publicly “outed” for the fraud, waste, and abuse that they have created. The desire to escape accountability runs deep in bureaucracies, particularly in an Administration that lies about almost everything and consistently refuses to take responsibility for its own innumerable screw-ups. Dishonesty and lack of accountability starts at the top of this rubbish heap. 

Due Process Forever! Clown Courts 🤡 Never!

PWS

07-01-20

“TILL DEATH ☠️⚰️ DO US PART” — EOIR CAN CONTINUE OPERATIONS DESPITE COVID-19:  U.S. District Judge “Stuffs” Immigration Bar’s Pleas For Better Protections!

Jacqueline Thomsen
Jacqueline Thomsen
Courts Reporter
National Law Journal

 

https://www.law.com/nationallawjournal/2020/04/28/federal-judge-says-he-cant-order-immigration-courts-to-close-over-covid-19/?kw=Federal%20Judge%20Says%20He%20Can%27t%20Order%20Immigration%20Courts%20to%20Close%20Over%20COVID-19&utm_source=email&utm_medium=enl&utm_campaign=breakingnews&utm_content=20200428&utm_term=nlj&slreturn=20200328111724

 

Jacqueline Thomsen reports for the National Law Journal:

 

A federal judge in Washington, D.C., ruled Tuesday that he did not have the authority to order immigration courts to temporarily shut down during the COVID-19 pandemic.

U.S. District Judge Carl Nichols, confirmed to the federal bench last year, found he did not have jurisdiction to rule on that matter, and the immigration lawyers and detained immigrants seeking a temporary restraining order against the Justice Department, which oversees the immigration courts, are unlikely to succeed on the merits of their case.

He pointed to the Immigration and Nationality Act, which states legal challenges tied to removal proceedings conducted in immigration courts can only be brought to courts of appeals.

Nichols wrote that “the increased risk of contracting COVID-19 constitutes a cognizable injury sufficient to satisfy Article III, and also that the risk of contracting COVID-19 will increase as a result of being forced to attend in-person hearings.” But he found the detained immigrants named in the suit do not have “an imminent in-person hearing,” and therefore lack standing.

“More generally, there is no evidence in the record that any of the individual plaintiffs has been forced to appear, or will be forced to appear, at an in-person hearing over his or her request for either a continuance or some way of attending remotely, such as by VTC or teleconference. In fact, the evidence is to the contrary. The individual plaintiffs have thus failed to establish that they are likely to suffer an imminent injury to their health that is traceable to EOIR’s failure to take different action,” Nichols wrote.

The judge also took issue with immigration lawyer groups who alleged that detained immigrants are being deprived of counsel due to policies implemented during the pandemic.

 

Nichols said the lawyers “fail to explain” how the policies have caused the immigrants “to be unable to retain an attorney—especially considering that they had been unable to find counsel even before the pandemic and considering that they were able to retain counsel for this suit.”

He further said the immigration lawyers have failed to show that “immigration judges are regularly refusing to deny requests for continuances or requests for telephonic or VTC hearings.”

 

.  .  .  .

 

 

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Those with access to the NLJ (everyone can get 3 free “non-premium” articles per month by registering) can read Jacqueline’s full article and get Judge Nichols’s full opinion at the above link.

 

A slight clarification of the last sentence in Jacqueline’s full article: Nichols, during arguments, was concerned about what options detained immigrants have if an immigration judge, which are Article I judges under the control of the Department of Justice, refused to delay an in-person hearing or hold it remotely.”

Immigration Judges are “administrative judges” who work for the Attorney General. Unfortunately, they are not “Article I Judges,” which would make them a true independent judiciary.

 

Immigration Judges would like to be Article I Judges. Most immigration and judicial experts agree that they should be. There are a number of legislative proposals circulating to establish an independent Article Immigration Court. But, alas, notwithstanding the obvious and pressing need, Congress is nowhere close to legislating the necessary change.

 

So, these current blatantly unconstitutional “captive courts” operating under the DOJ will continue to stagger on, taking innocent lives and trampling due process and fundamental fairness in the process. Grimly, as I had predicted, it’s apparently going to take some actual dead bodies⚰️of migrants and perhaps their lawyers piling up on the courthouse steps to get either the Article IIIs or Congress to pay serious attention to this unfolding disaster which seems to operate just enough beneath their “radar screens” to allow them to ignore or, as in this case, paper it over.

 

Due Process Forever! Captive Courts Never!

 

PWS

 

04-28-20

 

 

IDIOCY WATCH: “Clown Courts’” 🤡🤡🤡 Refusal To Follow COVID-19 Guidelines Is Top Headline In Today’s National Law Journal — “Congress should not have believed to have adopted … a suicide pact or a death trap.”☠️⚰️😰🆘😉

Jacqueline Thomsen
Jacqueline Thomsen
Courts Reporter
National Law Journal

DOJ Said Judges Can’t Stop Immigration Hearings Over COVID-19. Cleary Gottlieb Called That a ‘Death Trap.’

Immigration lawyers and detained immigrants want U.S. District Judge Carl Nichols to temporarily stop all in-person immigration proceedings during the COVID-19 pandemic.

By Jacqueline Thomsen | April 15, 2020 at 06:35 PM

Justice Department attorneys told a federal judge in Washington, D.C., on Wednesday that he lacks the authority to temporarily halt in-person court proceedings for detained immigrants during the COVID-19 pandemic.

. . . .

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

Those will full access can go over to the NLJ for Jacqueline’s complete article.  

With DOJ lawyers arguing that folks have to “exhaust their administrative remedies” (basically by risking death or serious illness) you get the general tenor of the argument before U.S. District Judge Carl Nichols in D.C. 

I’d be tempted to say that during the pandemic ethical rules have been suspended for DOJ attorneys. But, in my view, that was true even before the pandemic. 

And, in their defense, some of their misleading narratives and insane arguments actually WIN in Federal Court, as some Federal Judges are used to deferring to the DOJ and giving their lawyers a pass on both ethical rules and acceptable arguments that generally wouldn’t be extended to private attorneys acting in the same irresponsible manner.

What would be an acceptable response in a better functioning, ethics-biased DOJ: for the lawyers to go back to their “agency clients,” tell them that they won’t defend the indefensible, and advise them to start working immediately with the plaintiffs to develop methods for hearing only the most pressing cases under appropriate health safeguards. 

Interestingly, the positions argued by DOJ lawyers are actually putting the lives of their colleagues at EOIR and their fellow Government attorneys at ICE at risk! Perhaps if they “win,” they should be given a chance to risk their lives to represent ICE in Immigration Court! Wonder how their nifty little “exhaustion arguments” would help them ward off the virus.

With 1.4 million cases already in the backlog, it’s not like any one removal more or less during the pandemic is going to make much of a difference. Unlike, perhaps, some other courts built with sufficient space and electronic support, the poorly designed “brandbox” Immigration Courts with marginal, at best, technology, are unhealthy in the best of times. Certainly, it’s difficult to imagine that there are very many cases other than perhaps bonds or stipulated “grant and release” cases that need to go forward right now.

How many lawyers (on both sides) and Immigration Judges are going to have to die before the Article IIIs finally take notice and put the brakes on the nonsense going on at EOIR?☠️⚰️☠️⚰️☠️⚰️

Due Process Forever. Clown Courts Never!🤡

PWS

04-16-20 

IN MEMORIAM: JUSTICE JOHN PAUL STEVENS (1920-2019), AMERICAN HERO WHO LEAVES A LEGACY OF KINDNESS & COMMON SENSE — Authored One Of The Greatest Supreme Court Decisions, INS v. Cardoza-Fonseca!

https://www.law.com/nationallawjournal/2019/07/16/justice-john-paul-stevens-who-left-us-a-better-nation-dies-at-99/

Justice John Paul Stevens
Justice John Paul Stevens
1920-2019
Author of INS v. Cardoza-Fonseca
Marcia Coyle
Marcia Coyle
Supreme Court Reporter
National Law Journal

Marcia Coyle writes in the National Law Journal:

Justice John Paul Stevens, whose decisions during almost 35 years on the U.S. Supreme Court triggered a revolution in criminal sentencing and curbed government overreach in the war on terror, died on Tuesday evening at Holy Cross Hospital in Fort Lauderdale, Florida. He was 99.

Stevens died of complications following a stroke that he suffered on July 15, according to a statement from the Supreme Court’s public information office. His daughters were by his side.

Chief Justice John G. Roberts Jr. said of Stevens:

“On behalf of the court and retired Justices, I am saddened to report that our colleague Justice John Paul Stevens has passed away. A son of the Midwest heartland and a veteran of World War II, Justice Stevens devoted his long life to public service, including 35 years on the Supreme Court. He brought to our bench an inimitable blend of kindness, humility, wisdom, and independence. His unrelenting commitment to justice has left us a better nation. We extend our deepest condolences to his children Elizabeth and Susan, and to his extended family.”

Shortly after retiring from the high court in June 2010, Stevens, described by one legal scholar as “one of the most articulate, disciplined and accomplished” justices in U.S. history, “made clear that he still had a “lot to say.”

Over the next nearly 10 years, the indefatigable nonagenarian wrote three books and gave numerous speeches around the country in which he critiqued past and current Supreme Court decisions.

In “Five Chiefs: A Supreme Court Memoir,” he chronicled his experiences with chief justices from his time as a Supreme Court clerk in 1947 until his retirement as an associate justice. His favorite chief, he later said, was the current one—Chief Justice John Roberts Jr.

And in “Six Amendments: How and Why We Should Change the Constitution,” he proposed ways to change the founding document because “rules crafted by a slim majority of the members of the Supreme Court have had such a profound and unfortunate impact on our basic law that resort to the process of amendment is warranted.”

His proposed amendments would, among other tasks, hasten the demise of the death penalty—a punishment he supported early in his career but later found costly and ineffective; prohibit partisan gerrymanders; return the Second Amendment to its original meaning, in his view, as a collective militia right, not an individual right; and reverse the deregulation of money in elections achieved most prominently by the high court’s ruling in Citizens United v. Federal Election Commission.

His final book was: “The Making of a Justice: Reflections on My First 94 Years.”

An Unlikely “Revolutionary”

With his trademark bow-tie, mild manner and unfailingly polite questions on the bench, Stevens was an unlikely “revolutionary” in any area of the law.

Born April 20, 1920, in Chicago, Stevens was the youngest of four boys in a wealthy family headed by his father, Ernest Stevens. In 1927, his father built the Stevens Hotel in Chicago, now the Hilton Chicago, which at the time was one of the largest and finest hotels in the world.

A “very happy childhood,” according to Stevens, was disrupted when in 1934 the hotel went bankrupt and Stevens’ father, grandfather and uncle were indicted for diverting funds from the life insurance company that his grandfather had founded in order to make bond payments on the hotel. His father was convicted of embezzling $1.3 million. But, in that same year, the state Supreme Court overturned the conviction, holding there was “not a scintilla” of evidence of any fraud.

The experience had a profound effect on him, Stevens later said. Some legal scholars trace to that experience the deep sense of fairness and commitment to due process in the criminal justice system that marked his judicial career.

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After graduating from the University of Chicago, Stevens enlisted as an intelligence officer in the U.S. Navy, specializing in cryptology. His enlistment date was Dec. 6, 1941—the day before Pearl Harbor was attacked by the Japanese. Following his discharge in 1945, he enrolled in Northwestern University School of Law and graduated in two years after matriculating through regular and summer sessions.

Shortly before graduating, Stevens and his close friend, Art Seder, were informed by the dean of a possible clerkship with Justice Wiley Rutledge. The dean told the two men to decide who should be recommended. Stevens and Seder flipped a coin—and Stevens won.

Stevens’ clerkship with Rutledge was one of two factors that contributed to Stevens’ subsequent importance in the war on terror cases, Craig Green of Temple University School of Law told The National Law Journal in 2010. Stevens helped Rutledge write the dissent in Ahrens v. Clark in which Rutledge roundly criticized the majority for denying due process to German Americans detained during World War II.

“Rutledge was one of the crucial justices in the last round of really important war power decisions in World War II,” explained Green. “He was very strong on civil liberties. Those issues had a lot more prominence for Stevens than they might have had for another person.”

In Rumsfeld v. Padilla, the 2004 case involving U.S. citizen Jose Padilla, who was detained as an “unlawful combatant,” Stevens set out the foundation for his later opinions in a Rutledge-like dissent chastising his colleagues for dismissing Padilla’s case on jurisdictional grounds.

“At stake in this case is nothing less than the essence of a free society,” Stevens wrote. “Even more important than the method of selecting the people’s rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber.

After his high court clerkship ended, Stevens went into private practice in Chicago and served briefly on the Republican staff of the House Judiciary Committee in Washington, D.C.

In 1969, he became counsel to a committee assigned to investigate corruption in the Illinois Supreme Court. The result of that work was the prosecution of two state justices for bribery and exposure of corruption throughout the judicial system. His efforts caught the attention of Sen. Charles Percy, R-Illinois, who recommended him for a seat on the U.S. Court of Appeals for the Seventh Circuit. President Richard Nixon nominated Stevens in 1970 and he was confirmed that year.

Stevens served five years on the appellate court where he was known as a moderate conservative judge. In 1975, President Gerald Ford nominated him to fill the Supreme Court seat previously held by Justice William Douglas. He was unanimously confirmed just 19 days later.

From Maverick to Court Leader

During his early years on the high court, Stevens was something of a maverick, often writing lone concurrences or dissents on seemingly tangential issues. But with the departure of Justice Harry Blackmun and liberal lion Justices William Brennan and Thurgood Marshall, Stevens assumed a new role as leader of the court’s left wing and the senior associate justice. He always considered himself a conservative, even when labeled the leader of the court’s “liberal block.”  He often said he never moved left; it was the court that had moved increasingly to the right.

His position as the court’s senior associate justice empowered him to assign majority opinions when he was in the majority and the chief justice was in dissent. When Stevens was in dissent, he also could assign the main dissent to himself or a colleague.

Stevens used the assignment power deftly, forging majorities in a number of significant cases, often with the helpful vote of Justice Anthony Kennedy. One of the areas in which he crafted landmark rulings was fallout from the war on terror.

“On terrorism, he has been not just the leading light on the left, but the master strategist,” said Stephen Vladeck of American University Washington College of Law at Stevens’ retirement in 2010. “For the most part, as Justice Stevens has gone, so has gone the court.”

Besides the Padilla opinion, Stevens wrote the majority opinion in Rasul v. Bush (2004) holding that federal courts have habeas corpus jurisdiction to consider challenges to the legality of the detention of foreign nationals held by the United States at the Guantanamo Bay Naval Base in Cuba. And, he led the majority in Hamdan v. Rumsfeld (2006), holding that military commissions set up by the Bush Administration exceeded the president’s authority and their structure and procedures violated the Uniform Code of Military Justice and the Geneva Conventions.

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Guantanamo Bay detention center.

Stevens did not write the majority opinion in perhaps the most important of the terrorism cases—Boumediene v. Bush in 2008—but he did assign the majority opinion to Kennedy. In that case, the Court held that the Military Commissions Act of 2006 operated as an unconstitutional suspension of the writ of habeas corpus and reiterated that Guantanamo Bay detainees had access to federal habeas corpus.

Although Boumediene is considered the more important decision legally of the three by many scholars, Stevens’ opinions in Rasul and Hamdan have been more important politically, according to Vladeck and others. They prompted Congress to act and started a national debate. With all three decisions, the high court moved forward incrementally in its supervision of executive and congressional action in this new type of war.

Enforcing Due Process

In 2000, Stevens wrote the majority opinion in Apprendi v. New Jersey and triggered a small earthquake in criminal sentencing procedures. Apprendi held that due process required that any fact increasing the penalty for a crime above the prescribed statutory maximum must be proved to the jury beyond a reasonable doubt. A judge no longer could impose a higher sentence after finding the requisite facts; it had to be the jury.

Five years later in U.S. v. Booker, Stevens led the majority in dismantling the mandatory character of federal sentencing guidelines. In the process, he put together an unusual coalition, finding key support from Justices Antonin Scalia, who sought to reinvigorate the Sixth Amendment right to a jury trial, and Clarence Thomas.

The animating principle in both decisions was due process, or fairness, in the criminal justice system. It also animated Stevens’ rulings in two other keys areas of criminal law which are major parts of his legacy—the death penalty and right to counsel.

Throughout his career on the court, Stevens strived to bring “more law” to capital punishment. James Liebman of Columbia Law School and Lawrence Marshall of Stanford Law school, both former Stevens clerks, have described the justice’s approach to the death penalty as “less is better.” In Thompson v. Oklahoma (1988) and Atkins v. Virginia (2002), he wrote majority opinions narrowing the eligibility for the penalty by striking down capital punishment for those under age 15 and for mentally retarded persons, respectively. He also is credited with being particularly influential in Roper v. Simmons (2005), written by Justice Anthony Kennedy, eliminating the death penalty for persons under 18.

In the court’s first lethal injection challenge, Baze v. Reese (2008), he wrote a concurring opinion concluding that the death penalty “with such negligible returns to the state” is unconstitutional.

“I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes,” he wrote.

Justices Harry Blackmun and Lewis Powell Jr., both supportive like Stevens of the death penalty in 1976 when the high court reinstated capital punishment, also ultimately changed their view.

Stevens often held criminal defense lawyers to a higher standard of competency than has the court’s conservative majority in recent years. One of his last victories in this area has had major ramifications. In Padilla v. Kentucky (2010), he led the majority in holding that defense counsel has an affirmative duty to inform a client that a plea may carry a risk of deportation.

Stevens in Dissent

Two of Stevens’ most important dissents came near the end of his tenure in two of the Roberts court’s most controversial cases.

In District of Columbia v. Heller, a 5-4 majority, with Stevens dissenting, held that the Second Amendment guarantees an individual right to possess a firearm—unconnected with service in a militia– and to use that firearm for traditionally lawful purposes.

In his lengthy dissent, Stevens fought with the majority’s author, Scalia, on the original meaning of the amendment’s text, its history and the importance of a 70-year-old precedent holding that the right guaranteed was a collective one, not an individual one.

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U.S. Supreme Court Justice Antonin Scalia. (Photo: Diego M. Radzinschi / ALM)

So certain that his view was correct, Stevens later told this reporter, he had circulated his draft dissent before the draft majority opinion went to the other justices.

“It was unusual,” he said. “We thought if anybody made a fair and thorough analysis of the history, that we would win. That’s why we put it out there.”

But he didn’t win. When asked what a justice should do if there are good arguments on both sides, he said, “History is important but as long as there are reasonable arguments on both sides, you look at other factors involved in the case. In this particular case, you’re really asking the question who should make the policy decisions of what gun control rules we should have. It seems to me this is the quintessential example of the policy question the elected representatives of the people should decide. That to me is a terribly important tie-breaker. And then you have stare decisis—when a rule is that well-settled and hasn’t caused any unfair results, normally you let the rule stand.”

The second major dissent came just six months before he retired. In Citizens United v. Federal Election Commission (2010), a 5-4 court struck down federal limits on independent campaign expenditures by corporations because they violated the First Amendment speech rights of corporations.

Stevens wrote that corporations are not people and money, which finances speech, is not “speech.” He later explained his views to this writer, saying, “An election is a form of debate. Where you have a debate, you make rules that equalize the two sides. When we have a debate in our court, each side gets 30 minutes and because one of them has a $100 million, they don’t get any extra time.”

At the end of his lengthy dissent, he wrote: “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

On the day the decision was issued, Stevens read a summary of his dissent from the bench and stumbled in its delivery. He later revealed that, despite being cleared of any medical problem by his doctor, he decided that day to retire.

Stevens’ wife of 35 years, Maryan, died on Aug. 7, 2015. He is survived by his children, Elizabeth Jane Sesemann (Craig) and Susan Roberta Mullen (Kevin), nine grandchildren: Kathryn, Christine, Edward, Susan, Lauren, John, Madison, Hannah and Haley, and 13 great-grandchildren. His first wife, Elizabeth Jane, his second wife, Maryan Mulholland, his son, John Joseph, and his daughter, Kathryn, preceded him in death.

Funeral plans will be released when available, according to the Supreme Court.

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

One of Justice Stevens’s greatest contributions was his opinion in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). That case established the generous “well-founded fear” standard for asylum eligibility under the Refugee Act of 1980. Justice Stevens rejected the Government’s position that a higher “clear probability,” in other words “more likely than not,” standard applied. 

In parsing the history and intent behind the Act’s “refugee” definition, which was taken from the 1951 United Nations Convention on the Status of Refugees, Justice Stevens cited extensively from the UNHCR’s U.N. Handbook on Procedures and Criteria for Determining Refugee Status. His opinion also famously stated “There is simply no room in the United Nations’ definition for concluding that because an applicant has only a 10% chance of being shot, tortured, or otherwise persecuted that he or she has no ‘well-founded fear’ of the event happening.” 480 U.S. 439.

Justice Stevens closed by stating:

Our analysis of the plain language of the Act, its symmetry with the United Nations Protocol, and its legislative history, lead inexorably to the conclusion that to show a “well-founded fear of persecution,” an alien need not prove that it is more likely than not that he or she will be persecuted in his or her home country. We find these ordinary canons of statutory construction compelling, even without regard to the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien. See INS v. Errico, 385 U.S. 214, 225 (1966); Costello v. INS, 376 U.S. 120, 128 (1964); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948).

Deportation is always a harsh measure; it is all the more replete with danger when the alien makes a claim that he or she will be subject to death or persecution if forced to return to his or her home country. In enacting the Refugee Act of 1980 Congress sought to “give the United States sufficient flexibility to respond to situations involving political or religious dissidents and detainees throughout the world.” H. R. Rep., at 9. Our holding today increases that flexibility by rejecting the Government’s contention that the Attorney General may not even consider granting asylum to one who [480 U.S. 421, 450] fails to satisfy the strict 243(h) standard. Whether or not a “refugee” is eventually granted asylum is a matter which Congress has left for the Attorney General to decide. But it is clear that Congress did not intend to restrict eligibility for that relief to those who could prove that it is more likely than not that they will be persecuted if deported.

480 U.S. 449-50.

I have a particular recollection of the difference made by Justice Stevens’s opinion in Cardoza-Fonseca because I worked on that case. At that time, I was the Deputy General Counsel of the “Legacy INS.” I assisted the Solicitor General’s Office in developing the INS’s, ultimately losing, position that the Act required a showing that persecution was “more likely than not.”

I was present in Court on October 7, 1986 for the oral argument.  Ms. Cardoza-Fonseca was represented by a brilliant young lawyer from San Francisco named Dana Marks Keener, who won the day for her client. It was Dana’s first, and as far as I know only, argument before the Court.

Hon. Diana Leigh Marks
Hon. Dana Leigh Marks
U.S. Immigration Judge
San Francisco Immigration Court
Past President, National Association of Immigration Judges

By contrast, her opposing counsel that day, Deputy Solicitor General Larry Wallace, had 157 oral arguments before the Court. According to Wikipedia, Wallace “holds the record for most cases argued before the Supreme Court by any attorney, public or private, in the twentieth century.”

Shortly thereafter, Dana (now known as Dana Leigh Marks) was appointed a U.S. Immigration Judge in San Francisco. We later became great friends and colleagues.

Dana went on to become a President of the National Association of Immigration Judges (“NAIJ”). Dana is one of America’s leading proponents of judicial independence for U.S. Immigration Judges and the establishment of an independent Article I U.S. Immigration Court. She has made countless appearances on television and radio and is often quoted in major media. I often refer to Dana as one of the “Founding Mothers” of U.S. asylum law.

When I first read Justice Stevens’s opinion, I realized he was right, and we had been wrong. Thereafter, I made it a point to be faithful to the “10% test” and the generous interpretation of “well-founded fear” established by Cardoza-Fonseca and later incorporated by the BIA in Matter of Mogharrabi, 19 I&N Dec. 437 (BIA 1987).

When I was appointed Chairman of the BIA by then Attorney General Janet Reno in 1995, I was taken aback to discover that some of my colleagues appeared to be giving only “lip service” to Cardoza-Fonseca and Mogharrabi, while actually applying what seemed to me the discredited “more likely than not” standard to asylum cases. That lead to lots of dissenting opinions and my eventually being “exiled” to the Arlington Immigration Court by Attorney General John Ashcroft. During my 13 years on the bench in Arlington, I always tried my best to remain faithful to Cardoza-Fonseca and Mogharrabi and to “bring them to life” in my courtroom and in my teaching, both in and out of court.

As a result of Dana’s arguments and Justice Stevens’s opinion in Cardozo-Fonseca, the situation for U.S. asylum seekers improved dramatically over the next three decades. On the eve of Cardoza-Fonseca, only about 10% of asylum applicants were successful in Immigration Court. By 2012, over 50% were succeeding in their claims. Thus, it seemed that the Justice Stevens’s vision and the “generous promise of Cardoza-Fonseca” were on the verge of finally being fulfilled.

Alas, it was not to happen. Starting with the Obama Administration’s misguided (and ineffective) “tough guy” response to a largely exaggerated “border surge” of 2014, and continuing with the Trump Administration’s all out White Nationalist assault on refugee and asylum law and Due Process generally, the DOJ has used various devices to force down the asylum grant rate everywhere, including Immigration Court. Now, only about one-third of applications are being granted, notwithstanding that conditions in most of the “sending countries” for refugees and asylum seekers have actually gotten measurably worse since 2012.

As shown by their scofflaw actions this week, the Trump Administration intends to effectively repeal the Refugee Act of 1980 and withdraw from the Convention by bogus regulations and administrative fiat. I believe that Justice Stevens would be among those of us finding that situation deplorable.

However, like Justice Stevens, there are many of us out here still carrying on the tradition of human kindness, generosity, common sense, and the “upward arc of the law.” Through the efforts of the “New Due Process Army” and others who will follow in their footsteps, I believe that justice and human dignity will eventually triumph and that Justice Stevens’s wise and inspiring words in Cardoza-Fonseca will once again be given life and become the hallmark of U.S. asylum adjudication and the recognition of human rights in the United States. 

Thanks again, Justice Stevens, for a life well-lived and your outstanding contributions to American law and to humanity. 

PWS

07-18-19

EXPOSING SESSIONS’S DEADLY DUE PROCESS SCAM: JUDGE SULLIVAN BLOCKS ANOTHER POTENTIAL DEPORTATION TO DEATH AS SESSIONS-LED DOJ ARGUES THAT THE KILLING LINE NOT SUBJECT TO REVIEW — Pro Bono Counsel Jones Day Saves The Day, At Least For Now — “To be blunt, if she’s killed, there’s no remedy, your honor.” She added: “No remedy at all.”

https://www.law.com/nationallawjournal/2018/08/23/judge-who-forced-feds-to-turn-that-plane-around-blocks-another-deportation/?kw=Judge%20Who%20Forced%20Feds%20to%20%27Turn%20That%20Plane%20Around%27%20Blocks%20Another%20Deportation&et=editorial&bu=NationalLawJournal&cn=20180823&src=EMC-Email&pt=NewsroomUpdates&utm_source=newsletter

C. Ryan Barber reports for the National Law Journal:

Judge Who Forced Feds to ‘Turn That Plane Around’ Blocks Another Deportation

U.S. District Judge Emmet Sullivan this month lambasted federal officials for the unauthorized removal of a woman and her daughter while their emergency court challenge was unfolding in Washington, D.C.

Judge Emmet Sullivan of the U.S. District Court for D.C. May 27, 2009. Photo by Diego M. Radzinschi/NATIONAL LAW JOURNAL.

A federal judge on Thursday ordered the Trump administration not to depart a pregnant Honduran woman as she seeks asylum in the United States, two weeks after demanding that the government turn around a plane that had taken a mother and daughter to El Salvador amid their emergency court appeal challenging removal.

U.S. District Judge Emmet Sullivan, of the U.S. District Court for the District of Columbia, granted a temporary stay preventing the Honduran woman’s deportation following a hearing on her challenge to the administration’s decision to make it all but impossible for asylum seekers to gain entry into the United States by citing fears of domestic abuse or gang violence.

In court papers filed earlier this week, the Honduran woman’s lawyers—a team from Jones Day—said she fled her home country “after her partner beat her, raped her, and threatened to kill her and their unborn child.” The woman, suing under the pseudonym “Zelda,” is currently being held at a Texas detention center.

“Zelda is challenging a new policy that unlawfully deprives her of her right to seek humanitarian protection from this escalating pattern of persecution,” the woman’s lawyers wrote in a complaint filed Wednesday. The immigrant is represented pro bono by Jones Day partner Julie McEvoy, associate Courtney Burks and of counsel Erin McGinley.

At Thursday’s court hearing, McGinley said her client’s deportation was imminent absent an order from the judge blocking such a move. “Our concern today,” McGinley said, “is that our client may be deported in a matter of hours.”

U.S. Justice Department lawyers on Wednesday filed papers opposing any temporary stay from deportation. A Justice Department lawyer, Erez Reuveni, argued Thursday that the Honduran woman lacked standing to challenge the Justice Department’s new immigration policy, which makes it harder for immigrants seeking asylum to argue fears of domestic violence and gang violence.

After granting the stay preventing the Honduran woman’s deportation, Sullivan made clear he had not forgotten the events of two weeks ago, when he learned in court that the government had deported a mother and daughter while their emergency challenge to deportation was unfolding.

“Somebody … seeking justice in a United States court is spirited away while her attorneys are arguing for justice for her? It’s outrageous,” Sullivan said at the Aug. 9 hearing. “Turn that plane around and bring those people back to the United States.”

Sullivan on Thursday urged Reuveni to alert immigration authorities to his order. Reuveni said he would inform those authorities, adding that he hoped there would not be a recurrence of the issue that arose two weeks earlier.

“It’s got to be more than hopeful,” Sullivan told Reuveni in court Thursday. Reuveni said he could, in the moment, speak for himself and the Justice Department, but not the Department of Homeland Security, which oversees U.S. Immigration and Customs Enforcement.

“I cannot speak for ICE until I get on the phone with them and say this is what you need to do immediately,” Reuveni said.

Sullivan said he appreciated Reuveni’s “professionalism” and his efforts to “undo the wrong” that had been done to the Salvadoran mother and daughter earlier this month.

The government, after the fact, said it was reviewing removal proceduresin the San Antonio immigration office “to identify gaps in oversight.”

Stressing the need for a stay against Zelda’s deportation, McGinley said at Thursday’s hearing: “To be blunt, if she’s killed, there’s no remedy, your honor.” She added: “No remedy at all.”

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When individuals have access to high quality counsel like Jones Day, the courts pay more attention. That’s why Sessions & co. are working overtime to insure that individuals are hustled though the system without any meaningful access to counsel and, perhaps most outrageously, by excluding counsel from participation in the largely rigged “credible fear review process” before the Immigration Court. This isn’t justice; it isn’t even a parody of justice. It’s something out of a Kafka novel.

No wonder the Sessions-infused DOJ attorneys don’t want any real court to take a look at this abusive and indefensible removal of individuals with serious claims to relief without consideration by a fair and impartial adjudicator operating under the Constitution and our Refugee Act rather than “Sessions’s law.”

Judge Sullivan actually has an opportunity to put an end to this mockery of American justice by halting all removals of asylum seekers until at least a semblance of Due Process is restored to the system. The only question is whether  he will do it! The odds are against it; but, with folks like Jones Day arguing in behalf of the unfairly condemned, the chances of halting the “Sessions Death Train” have never been better!

(Full Disclosure: I am a former partner at Jones Day.  I’ve never been prouder of my former firm’s efforts to protect the American justice system and vindicate the rights of the most vulnerable among us. Congrats and appreciation to Jones Day Managing Partner Steve Brogan, Global Pro Bono Coordinator Laura Tuell, Partner Julie McEvoy, Of Counsel Erin McGinley, and everyone else involved in this amazing and much needed effort!) 

PWS

08-24-18

 

GONZO’S WORLD: His Own Credibility Has Become A Bad Joke — But, Under Gonzo The DOJ & The SG’s Office Rapidly Losing Credibility & Respect From The Federal Courts!

https://www.law.com/nationallawjournal/sites/nationallawjournal/2017/11/09/justice-department-faces-questions-for-supreme-court-attack-on-aclu-ethics/

Marcia Coyle reports for the National Law Journal:

“The U.S. Justice Department’s request that the Supreme Court consider sanctions against lawyers who advocated for an immigrant teenager at the center of an abortion case has raised questions about the government’s motivation and threatened to jeopardize the reputation of the solicitor’s office before the justices. Former Justice Department attorneys called the government’s action in the Supreme Court “extraordinary” and said they had no memory of a similar Supreme Court petition.”

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You’ll need a full subscription to the NLJ to get beyond what I’ve quoted above. But, you get the idea.

And remember, you read first in some of my earlier blogs in immigrationcourtside.com about the DOJ’s and SG’s likely loss of years of hard earned respect and credibility by arguing the relatively “law free” politicized “Gonzo” positions forced on them by Sessions and the rest of the White Nationalist Trumpsters. Remember, the pro bono lawyers being smeared by Sessions’s DOJ were fighting to vindicate a migrant teenager‘s clear constitutional rights against an attempt by Government officials to substitute their own personal opinions for the constitutional rules and to misrepresent their true intentions (use delay and obfuscation tondefeat constitutional rights) in doing so. Sounds like it’s Sessions and his group whose law licenses should be re-examined.

The public and to some extent the media might have allowed the “Trump/Sessions Crowd” to “normalize” the presentation of lies, misrepresentations, intentional omissions, distortions, and political screeds as “facts” or “legal arguments.” But, most Article III Courts don’t like being played for fools, particularly by the USDOJ which traditionally has been expected to meet higher standards of integrity, fairness, and responsibility to accurately inform the tribunals before which they appear.

Ironically, although Gonzo tried to tag immigration lawyers fighting to preserve their clients’ statutory and constitutional rights as “dirty,” that tag is much more likely to stick to Gonzo and some of the ethically challenged DOJ lawyers doing his bidding. Not to mention that the DOJ is wasting the time of the Supremes with its basically frivolous request, intended largely as political grandstanding to satisfy Gonzo’s anti-abortion, anti-US Constitution political backers.

PWS

11-10-17

CA CHIEF JUSTICE SPEAKS OUT AGAIN ON HOW TRUMP/SESSIONS IMMIGRATION POLICIES UNDERMINE AMERICAN JUSTICE AT ITS SEAT — AMERICAN COURTHOUSES!

http://www.nationallawjournal.com/id=1202796166897?kw=California%27s%20Chief%20Justice%20Raises%20New%20Alarms%20Over%20Immigration%20Arrests%20at%20Court&et=editorial&bu=National%20Law%20Journal&cn=20170823&src=EMC-Email&pt=Daily%20Headlines

The National Law Journal reports:

“If you’re here, whatever your status, you enjoy the benefits of the laws of the state,” Cantil-Sakauye told judges, lawyers and legislative staffers attending the Women in the Court Legislative Day at California’s Capitol. A federal policy, not a law, “is superseding all of the other causes of justice,” she said.

. . . .

“It’s a national concern that deserves more attention … because we’re seeing people not come to court, not reporting to court, not coming for services, not coming to testify,” the chief justice said. “We are changing the way people think and feel about the law and justice and protection by this policy of immigration enforcement.”

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Read the complete article at the link.

Everyone has rights under the law, including undocumented individuals. By sowing fear in communities throughout America, the Trump/Sessions regime is actually encouraging criminals and gang members by enabling them to commit crimes victimizing immigrants and their communities with little fear of detection or prosecution. They are also undoing years of progress in community policing in ethnically diverse communities across America. See my prior post on how gangs love Trump & Sessions.

http://immigrationcourtside.com/2017/07/28/ms-13-gang-members-heartened-encouraged-by-trump-sessions-gonzo-tactics-they-ms-13-feel-like-they-can-do-whatever-they-want-cause-trump-himself-has-made-everybody-fear-alex-said-h/

Human traffickers are also view the Trump/Sessions policies as a “gift:”

http://immigrationcourtside.com/2017/07/29/the-guardian-hum…uman-traffickers/

Obsessive focus on immigration enforcement fails to serve the real interests of effective law enforcement. But, it does serve to fire up a White Nationalist base.

PWS

08-23-17

 

NLJ — Chicago Enlists Wilmer Cutler’s All-Star Team In Battle With Sessions On Sanctuary Cities!

http://www.nationallawjournal.com/id=1202794915257?kw=Wilmer%2C%20Counsel%20to%20Kushner%2C%20Challenges%20Trump%27s%20Immigration%20Policies&et=editorial&bu=National%20Law%20Journal&cn=20170808&src=EMC-Email&pt=Daily%20Headlines&slreturn=20170708095540

Katelyn Polantz writes:

“The leading lawyers on Chicago’s new challenge to the Trump administration’s immigration policies are names that you’ve heard before.
There is David Ogden, the first deputy attorney general during the Obama administration years. There is Debo Adegbile, an unsuccessful assistant attorney general nominee in the Obama years who developed a corporate practice related to civil rights at Wilmer after joining the firm in late 2014. And there is Jamie Gorelick, another former deputy attorney general who represents Ivanka Trump and her husband, Jared Kushner, on their security clearance applications and federal ethics issues.
All three lawyers are partners at Wilmer Cutler Pickering Hale and Dorr in Washington, D.C. Monday’s civil complaint filed by Chicago against U.S. Attorney Jeff Sessions III sees the city’s all-star legal team claim that the federal government’s new policies for immigration enforcement are “unauthorized and unconstitutional.”
“These new conditions also fly in the face of longstanding city policy that promotes cooperation between local law enforcement and immigrant communities, ensures access to essential city services for all residents, and makes all Chicagoans safer,” states the 46-page filing in a federal court in Chicago. Wilmer’s lawyers claim in court papers that their client’s case seeks to help keep Chicago “a Welcoming City.”
At risk—and prompting the suit—is federal funding available to cities. Sessions and the Justice Department are seeking to implement programs that help local police treat undocumented immigrants more strictly so they can continue to get federal grants. The extra grant criteria from the Justice Department includes requiring cities to give federal law enforcement officials greater access to immigrant detainees.”

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Those with NLJ access can read the complete story at the link.

Sessions impresses me as someone who would rather fight to publicize his extreme agenda than work with others to solve problems. As I have mentioned before, “Team Trump” promises full employment for lawyers on all sides of  a wide range of issues on which they seek to “turn back the clock” to a darker phase of American legal history. Indeed, Sessions himself has found it prudent to retain private counsel Chuck Cooper, in addition to his “cast of thousands” of DOJ lawyers and legal advisers.

PWS

08-08-17