MLK DAY 2018 — DR. KING’S DREAM OF AN AMERICA CELEBRATING EQUALITY & RACIAL HARMONY IS UNDER VICIOUS ATTACK BY TRUMP, PENCE, SESSIONS, AND A HOST OF OTHERS IN TODAY’S WHITE NATIONALIST ENABLING GOP — Who Is Going To Fight To Reclaim The Dream, & Who Is Going To “Go Along To Get Along” With The 21st Century Version Of Jim Crow?

Folks, as we take a few minutes today to remember Dr. King, his vision for a better America, and his inspiring “I Have A Dream Speech,” we have to face the fact that everything Dr. King stood for is under a vicious and concerted attack, the likes of which we haven’t seen in America for approximately 50 years, by individuals elected to govern by a minority of voters in our country.

So, today, I’m offering you a “potpourri”  of how and why Dr.King’s Dream has “gone south,” so to speak, and how those of us who care about social justice and due process in America can nevertheless resurrect it and move forward together for a greater and more tolerant American that celebrates the talents, contributions, and humanity of all who live here!.

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From the LA Times Editorial Board:

http://enewspaper.latimes.com/infinity/article_popover_share.aspx?guid=186bb118-702e-49a2-a52d-b8dac8aa0cc8

“50 years on, what would King think?

On Martin Luther King’s birthday, a look back at some disquieting events in race relations in 2017.

Nearly 50 years ago, the Rev. Martin Luther King Jr. went to the mountaintop and looked out over the promised land. In a powerful and prophetic speech on April 3, 1968, he told a crowd at the Mason Temple in Memphis that while there would certainly be difficult days ahead, he had no doubt that the struggle for racial justice would be successful.

“I may not get there with you,” he said. “But I want you to know tonight, that we, as a people, will get to the promised land. And so I am happy tonight. I’m not worried about anything.”

The following day, he was assassinated.

The intervening years have been full of steps forward and steps backward, of extraordinary changes as well as awful reminders of what has not changed. What would King have made of our first black president? What would he have thought had he seen neo-Nazis marching through the streets of Charlottesville, Va., so many years after his death? How would he have viewed the shooting by police of unarmed black men in cities around the country — or the rise of the Black Lives Matter movement? He would surely have heard the assertions that we have become a “post-racial” society because we elected (and reelected) Barack Obama. But would he have believed it?

This past year was not terribly heartening on the civil rights front. It was appalling enough that racist white nationalists marched in Charlottesville in August. But it was even more shocking that President Trump seemed incapable of making the most basic moral judgment about that march; instead, he said that there were some “very fine people” at the rally of neo-Nazis and white supremacists.

Racial injustices that bedeviled the country in King’s day — voter suppression, segregated schools, hate crimes — have not gone away. A report released last week by the U.S. Commission on Civil Rights on inequities in the funding of public schools concludes — and this should surprise no one — that students of color living in poor, segregated neighborhoods are often relegated to low-quality schools simply due to where they live. States continued in 2017 to pass laws that make it harder, rather than easier, for people of color to vote.

The Trump administration also seems determined to undo two decades of Justice Department civil rights work, cutting back on investigations into the excessive use of force and racial bias by police departments. Atty. Gen. Jeff Sessions in March ordered a review of all existing federal consent decrees with local police departments with the possibility of dismantling them — a move that could set back police reform by many years.

Here in Los Angeles County, this statistic is telling: 40% of the estimated 57,000 homeless people — the most desperate and destitute residents of the county — are black. Yet black residents make up only 9% of the L.A. County population.

But despite bad news on several fronts, what have been heartening over the last year are the objections raised by so many people across the country.

Consider the statues of Confederate generals and slave owners that were brought down across the country. Schools and other institutions rebranded buildings that were formerly named after racists.

The Black Lives Matter movement has grown from a small street and cyber-protest group into a more potent civil rights organization focusing on changing institutions that have traditionally marginalized black people.

When football quarterback Colin Kaepernick took a knee during the national anthem to protest, as he said, a country that oppresses black people, he was denounced by many (including Trump) but emulated by others. Kaepernick has been effectively banished from professional football but he started a movement.

Roy Moore was defeated for a Senate seat in Alabama by a surge of black voters, particularly black women. (But no sooner did he lose than Joe Arpaio — the disgraced, vehemently anti-immigrant former Arizona sheriff — announced that he is running for Senate there.)

So on what would have been King’s 89th birthday, it is clear that the United States is not yet the promised land he envisioned in the last great speech of his life. But we agree with him that it’s still possible to get there.”

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See this short HuffPost video on “Why MLK’s Message Still Matters Today!”

https://www.huffingtonpost.com/entry/martin-luther-king-jr-assassination-legacy_us_58e3ea89e4b03a26a366dd77

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Read about how the Arizona GOP has resurrected, and in some instances actually welcomed, “Racist Joe” Arpaio, an unapologetic anti-Hispanic bigot and convicted scofflaw. “Racist Joe” was pardoned by Trump and is now running for the GOP nomination to replace retiring Arizona GOP Senator Jeff Flake, who often has been a critic of Trump. One thing “Racist Joe’s” candidacy is doing is energizing the Latino community that successfully fought to remove him from the office of Sheriff and to have him brought to justice for his racist policies. 

Kurtis Lee reports for the LA Times:

http://www.latimes.com/nation/la-na-pol-arpaio-latino-voters-20180114-story.html

“Yenni Sanchez had thought her work was finished.

Spared from the threat of deportation by the Obama-era Deferred Action for Childhood Arrivals program, she campaigned to oust Joe Arpaio when he unsuccessfully ran for reelection as Maricopa County sheriff in 2016. She knocked on hundreds of doors in south Phoenix’s predominantly Latino neighborhoods to register voters. She made phone calls, walked on college campuses. Her message was direct, like the name of the group she worked with, Bazta Arpaio, a take on the Spanish word basta — enough Arpaio.

But now, the 85-year-old former sheriff is back and running for Senate. Sanchez, who had planned to step away from politics to focus on her studies at Grand Canyon University, is back as well, organizing once more.

“If he thinks he can come back and terrorize the entire state like he did Maricopa County, it’s not going to happen,” Sanchez, 20, said. “I’m not going to let it happen.”

Arpaio enters a crowded Republican primary and may not emerge as the party’s nominee, but his bid has already galvanized Arizona’s Latino electorate — one of the country’s largest and fastest-growing voter blocs.

Organizers like Sanchez, who thought they might sit out the midterm elections, rushed back into offices and started making calls. Social media groups that had gone dormant have resurrected with posts reminding voters that Arpaio was criminally convicted of violating a federal court order to stop racially profiling Latinos.

“We’ve been hearing, ‘Is it true Arpaio is back? OK, what can we do to help?’” said Montserrat Arredondo, director of One Arizona, a Phoenix nonprofit group focused on increasing Latino voter turnout. “People were living in terror when Arpaio was in office. They haven’t forgotten.”

In 2008, 796,000 Latinos were eligible to vote in the state, according to One Arizona. By 2016, that potential voting pool jumped to 1.1 million. (California tops the nation with the most Latinos eligible to vote, almost 6.9 million.)

In 2016, Latinos accounted for almost 20% of all registered voters in Arizona. Latinos make up about 30% of Arizona’s population.

. . . .

Last year, President Trump pardoned Arpaio of a criminal conviction for violating a federal court order to stop racially profiling Latinos. When announcing his candidacy Tuesday, Arpaio pledged his full support to the president and his policies.

On Saturday, Arpaio made his first public appearance since announcing his candidacy, attending a gathering of Maricopa County Republicans. He was unmoved when asked about the enthusiasm his candidacy has created among Latinos.

“Many of them hate me for enforcing the law,” he said. “I can’t change that. … All I know is that I have my supporters, they’re going to support who they want. I’m in this to win it though.”

Arpaio, gripping about a dozen red cardboard signs that read “We need Sheriff Joe Arpaio in DC,” walked through the crowd where he mingled with, among others, former state Sen. Kelli Ward and U.S. Rep. Martha McSally, who also are seeking the GOP Senate nomination. Overall, Arpaio was widely met with enthusiasm from attendees.

“So glad you’re back,” said a man wearing a “Vietnam Veteran” hat.

“It’s great to be back,” Arpaio replied.

Arpaio, who handed out business cards touting his once self-proclaimed status as “America’s toughest sheriff,” said he had no regrets from his more than two decades in office.

“Not a single one,” he said. “I spoke my mind and did what needed to be done and would do it the same in a minute.”

In an interview, Arpaio, who still insists he has “evidence” that former President Obama’s birth certificate is forged, a rumor repeatedly shown to be false, did not lay out specific policy platforms, only insisting he’ll get things done in Washington.

During his tenure as sheriff, repeated court rulings against his office for civil rights violations cost local taxpayers tens of millions of dollars.”

Read the complete story at the link.

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Professor George Yancy of Emory University writing in the NY Times asks “Will America Choose King’s Dream Or Trump’s Nightmare?”

https://www.nytimes.com/2018/01/15/opinion/martin-luther-king-trump-racism.html

Yancy writes:

“Let’s come clean: President Trump is a white racist! Over the past few days, many have written, spoken and shouted this fact, but it needs repeating: President Trump is a white racist! Why repeat it? Because many have been under the grand illusion that America is a “post-racial” nation, a beautiful melting pot where racism is only sporadic, infrequent and expressed by those on the margins of an otherwise mainstream and “decent” America. That’s a lie; a blatant one at that. We must face a very horrible truth. And America is so cowardly when it comes to facing awful truths about itself.

So, as we celebrate the Rev. Dr. Martin Luther King Jr.’s birthday, we must face the fact that we are at a moral crossroad. Will America courageously live out Dr. King’s dream or will it go down the road of bigotry and racist vitriol, preferring to live out Mr. Trump’s nightmare instead? In his autobiography, reflecting on the nonviolent uprising of the people of India, Dr. King wrote, “The way of acquiesce leads to moral and spiritual suicide.” Those of us who defiantly desire to live, and to live out Dr. King’s dream, to make it a reality, must not acquiesce now, precisely when his direst prophetic warning faces us head on.

On the night before he was murdered by a white man on the balcony of his room at the Lorraine Motel in Memphis, Tenn., Dr. King wrote: “America is going to hell if we don’t use her vast resources to end poverty and make it possible for all of God’s children to have the basic necessities of life.” Our current president, full of hatred and contempt for those children, is the terrifying embodiment of this prophecy.

We desperately need each other at this moment of moral crisis and malicious racist divisiveness. Will we raise our collective voices against Mr. Trump’s white racism and those who make excuses for it or submit and thereby self-destructively kill any chance of fully becoming our better selves? Dr. King also warned us that “there comes a time when silence is betrayal.” To honor Dr. King, we must not remain silent, we must not betray his legacy.

So many Americans suffer from the obsessive need to claim “innocence,” that is, to lie to ourselves. Yet such a lie is part of our moral undoing. While many will deny, continue to lie and claim our national “innocence,” I come bearing deeply troubling, but not surprising, news: White racism is now comfortably located within the Oval Office, right there at 1600 Pennsylvania Avenue, embodied in our 45th president, one who is, and I think many would agree, must agree, without any hesitation, a white racist. There are many who will resist this characterization, but Mr. Trump has desecrated the symbolic aspirations of America, exhumed forms of white supremacist discourse that so many would assume is spewed only by Ku Klux Klan.”

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

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From lead columnist David Leonhardt and Ian Prasad Philbrick at the NY Times we get “Donald Trump’s Racism: The Definitive List.”

https://www.nytimes.com/interactive/2018/01/15/opinion/leonhardt-trump-racist.html

Donald Trump has been obsessed with race for the entire time he has been a public figure. He had a history of making racist comments as a New York real-estate developer in the 1970s and ‘80s. More recently, his political rise was built on promulgating the lie that the nation’s first black president was born in Kenya. He then launched his campaign with a speech describing Mexicans as rapists.

The media often falls back on euphemisms when describing Trump’s comments about race: racially loaded, racially charged, racially tinged, racially sensitive. And Trump himself has claimed that he is “the least racist person.” But here’s the truth: Donald Trump is a racist. He talks about and treats people differently based on their race. He has done so for years, and he is still doing so.

Here, we have attempted to compile a definitive list of his racist comments – or at least the publicly known ones.

The New York Years

Trump’s real-estate company tried to avoid renting apartments to African-Americans in the 1970s and gave preferential treatment to whites, according to the federal government.

Trump treated black employees at his casinos differently from whites, according to multiple sources. A former hotel executive said Trump criticized a black accountant: “Black guys counting my money! I hate it. … I think that the guy is lazy. And it’s probably not his fault, because laziness is a trait in blacks.”

In 1989, Trump took out ads in New York newspapers urging the death penalty for five black and Latino teenagers accused of raping a white woman in Central Park; he argued they were guilty as late as October 2016, more than 10 years after DNA evidence had exonerated them.

In 1989, on NBC, Trump said: “I think sometimes a black may think they don’t have an advantage or this and that. I’ve said on one occasion, even about myself, if I were starting off today, I would love to be a well-educated black, because I really believe they do have an actual advantage.”

An Obsession With
Dark-Skinned Immigrants

He began his 2016 presidential campaign with a speech disparaging Mexican immigrants as criminals and “rapists.”

He uses the gang MS-13 to disparage all immigrants. Among many other statements, he has suggested that Obama’s protection of the Dreamers — otherwise law-abiding immigrants who were brought to the United States illegally as children — contributed to the spread of MS-13.

In December 2015, Trump called for a “a total and complete shutdown of Muslims entering the United States,” including refusing to readmit Muslim-American citizens who were outside of the country at the time.

Trump said a federal judge hearing a case about Trump University was biased because of the judge’s Mexican heritage.

In June 2017, Trump said 15,000 recent immigrants from Haiti “all have AIDS” and that 40,000 Nigerians, once seeing the United States, would never “go back to their huts” in Africa.

At the White House on Jan. 11, Trump vulgarly called forless immigration from Haiti and Africa and more from Norway.”

The disgusting list goes on and on. Go to the link to get it all!

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Also at the NY Times, Charles M. Blow states what by now should have become obvious to the rest of us: “Trump Is A Racist. Period.”

https://www.nytimes.com/2018/01/14/opinion/trump-racist-shithole.html

Blow writes:

“I find nothing more useless than debating the existence of racism, particularly when you are surrounded by evidence of its existence. It feels to me like a way to keep you fighting against the water until you drown.

The debates themselves, I believe, render a simple concept impossibly complex, making the very meaning of “racism” frustratingly murky.

So, let’s strip that away here. Let’s be honest and forthright.

Racism is simply the belief that race is an inherent and determining factor in a person’s or a people’s character and capabilities, rendering some inferior and others superior. These beliefs are racial prejudices.

The history of America is one in which white people used racism and white supremacy to develop a racial caste system that advantaged them and disadvantaged others.

Understanding this, it is not a stretch to understand that Donald Trump’s words and deeds over the course of his life have demonstrated a pattern of expressing racial prejudices that demean people who are black and brown and that play to the racial hostilities of other white people.

It is not a stretch to say that Trump is racist. It’s not a stretch to say that he is a white supremacist. It’s not a stretch to say that Trump is a bigot.

Those are just facts, supported by the proof of the words that keep coming directly from him. And, when he is called out for his racism, his response is never to ameliorate his rhetoric, but to double down on it.

I know of no point during his entire life where he has apologized for, repented of, or sought absolution for any of his racist actions or comments.

Instead, he either denies, deflects or amps up the attack.

Trump is a racist. We can put that baby to bed.

“Racism” and “racist” are simply words that have definitions, and Trump comfortably and unambiguously meets those definitions.

We have unfortunately moved away from the simple definition of racism, to the point where the only people to whom the appellation can be safely applied are the vocal, violent racial archetypes.

Racism doesn’t require hatred, constant expression, or even conscious awareness. We want racism to be fringe rather than foundational. But, wishing isn’t an effective method of eradication.

We have to face this thing, stare it down and fight it back.

The simple acknowledgment that Trump is a racist is the easy part. The harder, more substantive part is this: What are we going to do about it?

First and foremost, although Trump is not the first president to be a racist, we must make him the last. If by some miracle he should serve out his first term, he mustn’t be allowed a second. Voters of good conscience must swarm the polls in 2020.

But before that, those voters must do so later this year, to rid the House and the Senate of as many of Trump’s defenders, apologists and accomplices as possible. Should the time come where impeachment is inevitable, there must be enough votes in the House and Senate to ensure it.

We have to stop thinking that we can somehow separate what racists believe from how they will behave. We must stop believing that any of Trump’s actions are clear of the venom coursing through his convictions. Everything he does is an articulation of who he is and what he believes. Therefore, all policies he supports, positions he takes and appointments he makes are suspect.

And finally, we have to stop giving a pass to the people — whether elected official or average voter — who support and defend his racism. If you defend racism you are part of the racism. It doesn’t matter how much you say that you’re an egalitarian, how much you say that you are race blind, how much you say that you are only interested in people’s policies and not their racist polemics.

As the brilliant James Baldwin once put it: “I can’t believe what you say, because I see what you do.” When I see that in poll after poll a portion of Trump’s base continues to support his behavior, including on race, I can only conclude that there is no real daylight between Trump and his base. They are part of his racism.

When I see the extraordinary hypocrisy of elected officials who either remain silent in the wake of Trump’s continued racist outbursts or who obliquely condemn him, only to in short order return to defending and praising him and supporting his agenda, I see that there is no real daylight between Trump and them either. They too are part of his racism.

When you see it this way, you understand the enormity and the profundity of what we are facing. There were enough Americans who were willing to accept Trump’s racism to elect him. There are enough people in Washington willing to accept Trump’s racism to defend him. Not only is Trump racist, the entire architecture of his support is suffused with that racism. Racism is a fundamental component of the Trump presidency.

 

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Back over at the Washington Post, op-ed writer E.J. Dionne, Jr., tells us the depressing news that “We could be a much better country. Trump makes it impossible.” 

https://www.washingtonpost.com/opinions/we-could-be-a-much-better-country-trump-makes-it-impossible/2018/01/14/84bff6dc-f7d4-11e7-b34a-b85626af34ef_story.html?utm_term=.c2151ab89a3c

Dionne concludes his piece with the following observations about our current “Dreamer” debate:

“Our current debate is frustrating, and not only because Trump doesn’t understand what “mutual toleration” and “forbearance” even mean. By persistently making himself, his personality, his needs, his prejudices and his stability the central topics of our political conversation, Trump is blocking the public conversation we ought to be having about how to move forward.

And while Trump’s enablers in the Republican Party will do all they can to avoid the issue, there should now be no doubt (even if this was clear long ago) that we have a blatant racist as our president. His reference to immigrants from “sh–hole countries” and his expressed preference for Norwegians over Haitians, Salvadorans and new arrivals from Africa make this abundantly clear. Racist leaders do not help us reach mutual toleration. His semi-denial 15 hours after his comment was first reported lacked credibility, especially because he called around first to see how his original words would play with his base.

But notice also what Trump’s outburst did to our capacity to govern ourselves and make progress. Democrats and Republicans sympathetic to the plight of the “dreamers” worked out an immigration compromise designed carefully to give Trump what he had said he needed.

There were many concessions by Democrats on border security, “chain migration” based on family reunification, and the diversity visa lottery that Trump had criticized. GOP senators such as Lindsey O. Graham (S.C.) and Jeff Flake (Ariz.) bargained in good faith and were given ample reason by Trump to think they had hit his sweet spot.

Trump blew them away with a torrent of bigotry. In the process, he shifted the onus for avoiding a government shutdown squarely on his own shoulders and those of Republican leaders who were shamefully slow in condemning the president’s racism.

There are so many issues both more important and more interesting than the psyche of a deeply damaged man. We are capable of being a far better nation. But we need leaders who call us to our obligations to each other as free citizens. Instead, we have a president who knows only how to foster division and hatred.”

Read the rest of the op-ed at the link.

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Our “Liar-in-Chief:” This short video from CNN, featuring the Washington Post’s “Chief Fact Checker” Glenn Kessler deals with the amazing 2000+ false or misleading claims that Trump has made even before the first anniversary of his Presidency: “Trump averages 5-6 false claims a day.”

http://www.cnn.com/videos/politics/2018/01/15/president-trump-false-claims-first-year-washington-post.cnn

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Also on video, even immigration restrictionists sometimes wax eloquent about the exceptional generosity of U.S. immigration and refugee laws (even as they engage in an unending battle to undermine that claimed generosity). But, the reality, as set forth in this short HuffPost video is that on a regular basis our Government knowingly and intentionally returns individuals, mostly Hispanics, to countries where they are likely to be harmed or killed because we are unable to fit them within often hyper-technical and overly restrictive readings of various protection laws or because we are unwilling to exercise humanitarian discretion to save them..

I know first-hand because in my former position as a U.S. Immigration Judge, I sometimes had to tell individuals (and their families) in person that I had to order them returned to a country where I had concluded that they would likely be severely harmed or killed because I could not fit them into any of the categories of protection available under U.S. law. I daresay that very few of the restrictionists who glory in the idea of even harsher and more restrictive immigration laws have had this experience. 

And clearly, Donald Trump, Jeff Sessions, Steven Miller, Bob Goodlatte and others in the GOP would like to increase the number of humans we return to harm or death by stripping defenseless juveniles and other vulnerable asylum seekers of some of the limited rights they now possess in the false name of “border security.” Indeed, Sessions even invented a false narrative of a fraud-ridden, “attorney-gamed” (how do folks who often don’t even have a chance to get an attorney use attorneys to “game” the system?) asylum system in an attempt to justify his totally indefensible and morally bankrupt position.

Check out this video from HuffPost, entitled “This Is The Violent And Tragic Reality Of Deportation”  to see the shocking truth about how our removal system really works (or not)!

https://www.huffingtonpost.com/entry/this-is-the-violent-and-tragic-reality-of-deportation_us_5a58eeade4b03c41896545f2

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Thinking of MLK’S “I have a dream,” next, I’ll take you over to The Guardian, where Washington Correspondent Sabrina Siddiqui tells us how “Immigration policy progress and setbacks have become pattern for Dreamers.”

https://www.theguardian.com/us-news/2018/jan/15/dreamers-policy-progress-and-disaster-has-become-a-pattern-trump

Sabrina writes:

“Greisa Martínez Rosas has seen it before: a rare bipartisan breakthrough on immigration policy, offering a glimmer of hope to advocates like herself. Then a swift unraveling.

Martínez is a Dreamer, one of about 700,000 young undocumented migrants, brought to the US as children, who secured temporary protections through Barack Obama’s Deferred Action for Childhood Arrivals policy, or Daca.

She considers herself “one of the lucky ones”. Last year, she was able to renew her legal status until 2020, even as Donald Trump threw the Dreamers into limbo by rescinding Daca and declaring a deadline of 5 March for Congress to act to replace it.

Martínez is an activist with United We Dream, the largest youth-led immigration advocacy group in the US. She has fought on the front lines.

In 2010 and 2013, she saw efforts for immigration reform, and a pathway to citizenship for Dreamers, culminate in disappointment. She rode a familiar rollercoaster this week, as a bipartisan Daca fix was undermined by Trump’s reported – if contested – reference to African and Central American nations as “shithole countries”.

“It feels like a sequel,” Martínez told the Guardian, adding that Trump’s adversarial views underscored the need to hash out a deal. “This same man is responsible for running a Department of Homeland Security that seeks to hunt and deport people of color.”

Negotiations over immigration have always been precarious. Trump has complicated the picture. After launching his candidacy for president with a speech that called Mexican migrants “rapists” and “killers”, Trump campaigned on deporting nearly 11 million undocumented migrants and building a wall on the Mexico border.

He has, however, shown a more flexible attitude towards Dreamers – despite his move to end their protective status. Last Tuesday, the president sat in the White House, flanked by members of both parties. In a 45-minute negotiating session, televised for full effect, Trump ignited fury among his hardcore supporters by signaling he was open to protection for Dreamers in exchange for modest border security measures.

Then, less than 48 hours later, Trump’s reported comments about countries like Haiti and El Salvador prompted a fierce backlash.

“People are picking their jaws up from the table and they’re trying to recover from feelings of deep hurt and anger,” said Frank Sharry, founder and executive director of America’s Voice, a group which advocates for immigration reform.

“We always knew we were climbing a mountain … but it’s improbable to imagine a positive breakthrough for immigrants with the most nativist president in modern America in charge.”

As the uproar continued, it was nearly forgotten that on Thursday, hours before Trump’s remarks became public, a group of senators announced a bipartisan deal.

Under it, hundreds of thousands of Dreamers would be able to gain provisional legal status and eventually apply for green cards. They would not be able to sponsor their parents for citizenship – an effort to appease Trump’s stance against so-called “chain migration” – but parents would be able to obtain a form of renewable legal status.

There would be other concessions to earn Trump’s signature, such as $2bn for border security including physical barriers, if not by definition a wall.

The compromise would also do away with the diversity visa lottery and reallocate those visas to migrants from underrepresented countries and those who stand to lose Temporary Protected Status. That would help those affected by the Trump administration’s recent decision to terminate such status for some nationals of El Salvador, effectively forcing nearly 200,000 out of the country.

The bill would be far less comprehensive than the one put forward in 2013, when a bipartisan group of senators known as the “Gang of Eight” proposed a bill that would have given nearly 11 million undocumented migrants a path to citizenship.

The bill passed the Senate with rare bipartisan support. In the Republican-led House it never received a vote.

Proponents of reform now believe momentum has shifted in their favor, despite Trump’s ascent. The Arizona senator Jeff Flake, part of the 2013 effort and also in the reform group today, said there was a clear deadline of 5 March to help Dreamers.

“I do think there is a broader consensus to do this than we had before,” Flake told the Guardian. “We’re going have 700,000 kids subject to deportation. That’s the biggest difference.”

Read the rest of the story at the link.

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Finally, John Blake at CNN tells us “Three ways [you might not know] MLK speaks to our time.”

http://www.cnn.com/2018/01/12/us/mlk-relevance-today/index.html

“(CNN)“Every hero becomes a bore at last.”

That’s a famous line from the 19th century philosopher Ralph Waldo Emerson, but it could also apply to a modern American hero: the Rev. Martin Luther King Jr.
As the nation celebrates King’s national holiday Monday, it’s easy to freeze-frame him as the benevolent dreamer carved in stone on the Washington Mall. Yet the platitudes that frame many King holiday events often fail to mention the most radical aspects of his legacy, says Jeanne Theoharis, a political science professor at Brooklyn College and author of several books on the civil rights movement.
“We turn him into a Thanksgiving parade float, he’s jolly, larger than life and he makes us feel good,” Theoharis says. “We’ve turned him into a mascot.”
Many people vaguely know that King opposed the Vietnam War and talked more about poverty in his later years. But King also had a lot to say about issues not normally associated with civil rights that still resonate today, historians and activists say.

If you’re concerned about inequality, health care, climate change or even the nastiness of our political disagreements, then King has plenty to say to you. To see that version of King, though, we have to dust off the cliches and look at him anew.
If you’re more familiar with your smartphone than your history, try this: Think of King not just as a civil rights hero, but also as an app — his legacy has to be updated to remain relevant.
Here are three ways we can update our MLK app to see how he spoke not only to his time, but to our time as well:
. . . .
The country is still divided by many of the same issues that consumed him.
On the last night of his life, King told a shouting congregation of black churchgoers that “we as a people” would get to “the Promised Land.” That kind of optimism, though, sounds like it belongs to another era.
What we have now is a leader in the White House who denies widespread reports that he complained about Latino and African immigrants coming to America from “shithole” countries; a white supremacist who murders worshippers in church; a social media landscape that pulsates with anger and accusations.
King’s Promised Land doesn’t sound boring when compared to today’s headlines. And maybe that’s what’s so sad about reliving his life every January for some people.
Fifty years after he died, King’s vision for America still sounds so far away.”
Read the complete article at the link.
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There you have it. A brief but representative sample of some of the many ways in which Dr. King’s dream of a “post racist America” is still relevant and why there’s still much more work still to be done than many of us might have thought several years ago.  
So, the next time you hear bandied about terms like “merit-based” (means: exclude Brown and Black migrants); “extreme vetting” (means: using bureaucracy to keep Muslims and other perceived “undesirables” out); “tax cuts” (means: handouts to the rich at the expense of the poor); “entitlement reform” (means: cutting benefits for the most vulnerable); “health care reform” (means: kicking the most needy out of the health care system); “voter fraud” (means: suppressing the Black, Hispanic, and Democratic vote); “rule of law” (means: perverting the role of Government agencies and the courts to harm Blacks, Hispanics, Gays, women, the poor, and other minorities); “job creation” (means: destroying our precious natural resources and the environment for the benefit of big corporations), “border security” (means: slashing rights for children and asylum seekers, money for building a wall and expanding prisons for non-criminal migrants, a/k/a/ “The New American Gulag”) and other deceptively harmless sounding euphemisms, know what the politicos are really up to and consider them in the terms that Dr. King might have.
What’s really behind the rhetoric and how will it help create the type of more fair, just, equal, and value-driven society that majority of us in American seek to be part of and leave to succeeding generations. If it isn’t moving us as a nation toward those goals, “Just Say NO” as Dr. King would have done! 
PWS
01-15-18

CHRISTIE THOMPSON @ THE MARSHALL PROJECT: SESSIONS’S APPARENT ATTACK ON “ADMINISTRATIVE CLOSING” IN U.S. IMMIGRATION COURT COULD FURTHER SCREW UP ALREADY FAILING SYSTEM — It Wasn’t A Problem, But Is Likely To Become One By The Time He’s Finished By Stripping Judges Of Last Vestiges Of Independent Authority Over Their Mushrooming Dockets! – I’m Quoted In This Article!

https://www.themarshallproject.org/2018/01/09/the-doj-decision-that-could-mean-thousands-more-deportations

Christie writes

“Sessions considers tying the hands of immigration judges.

Administrative closure sounds like one of the driest bureaucratic terms imaginable, but it has huge implications for immigrants and their families. Now, U.S. Attorney General Jeff Sessions, who oversees immigration judges, is considering limiting that power.

Sessions wrote in a recent brief that he would review judges’ authority to administratively close immigration cases, the latest in a series of Department of Justice memos and policies that could reshape immigration courts and make it even harder for people to remain in the U.S.

Administrative closure has been used frequently by judges to drop cases against people who aren’t a priority for deportation or who have other pending legal issues. Judges under the Obama administration used this option far more than previous judges, administratively closing 180,000 cases in four years. Critics say it operates as a kind of backdoor amnesty, particularly for people who don’t qualify for other kinds of relief under immigration law.

Closed cases are in a sort of limbo: the immigrant isn’t legally in the U. S., but the government isn’t pursuing deportation. Authorities can change their mind at any time. Under Obama, this usually happened only if the immigrant went on to commit a crime or if there was a development in his or her legal status. But the Trump Administration has already begun re-openingthousands of administratively closed cases. Immigration judges under Trump have also stopped closing cases for people who didn’t used to be an enforcement priority — such as parents of U.S. citizen children who had been in the country for a long time and had no criminal record.

Judges, attorneys and advocates say that ending administrative closure entirely could have a significant impact on individual cases and the immigration court system overall. Sessions could decide to reopen as many as 350,000 closed cases, which could flood a backlogged system that has 650,000 pending cases.

“If he brings them all back into court at once, that’s going to cripple the courts even further,” said Paul Wickham Schmidt, a former immigration judge and former head of the Board of Immigration Appeals. “They can’t do the cases they have now — why is he out there looking for more?”

There are groups of immigrants for whom administrative closure is particularly important. Someone being deported for a crime but still fighting the conviction may have his or her case closed while an appeal is pending. Judges may also stop removal proceedings for immigrants with serious mental health issues or intellectual disabilities if they are found to be incompetent to go through court hearings.

Many undocumented children also ask for administrative closure while they’re applying for juvenile protected status, a legal status that can take years to wind its way through state family court and U.S. Citizenship and Immigration Services. Without administrative closure, “those children could be deported while their application for a green card is pending with another immigration agency,” said Nicholas Phillips, an immigration attorney with Prisoners Legal Services of New York.

If administrative closure isn’t an option, judges have another option of issuing a continuance, which postpones the decision. However, that practice also recently came under fire from the attorney general. Sessions’ office recently criticized the increased use of continuances by immigration judges, saying they delayed the courts.

The Justice Department has made several decisions and proposals recently that would change how immigration judges do their job.

This fall, the department proposed setting case completion quotas for judges to try to speed up decision-making. It released a memo in December that reminding judges to act “impartially” when looking at cases involving children, despite their commonly sympathetic stories. DOJ also said judges should give asylum applications more careful scrutiny and be more reluctant to postpone a case.

Sessions’ announcement of the review came when he intervened in the immigration case of a minor who arrived from Guatemala in 2014. He has asked the Department of Homeland Security and other interested groups to submit briefs on the issue of administrative closure by a February deadline.”

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There are an estimated 350,000 pending cases currently in “administratively closed” (“AC”) status! In my extensive experience at all levels of our immigration system, there are sound reasons supporting almost all of these ACs.

If Sessions, as expected by most advocates, reaches the rather absurd conclusion that notwithstanding over three decades of use by Administrations and Attorneys General of both parties, AC is somehow “illegal” or should be “withdrawn,” these cases likely would mindlessly be thrown back into the already overwhelmed U.S. Immigration Courts on top of the 660,000 already pending cases. Over a million pending cases! That has the potential to “implode” or “explode” or “sink” (choose your favorite verb) the Immigration Court system on the spot.

In reality, AC has been nothing but a godsend for overworked, over-stressed U.S. Immigration Judges and the immigration Court system. Rather than being forced to “docket babysit” cases that can better be resolved elsewhere in the system than in Immigration Court, or that under a proper use of resources and prosecutorial discretion by the DHS never should have been placed in Immigration Court in the first place, the Immigration Judges can “clear some of the deadwood” from their dockets and concentrate on the cases that actually need their limited time and attention. No, AC by itself can’t solve the chronic backlog and due process problems currently festering in the U.S. Immigration Courts. But, reducing the active docket by a whopping one-third without treading on anyone’s due process rights was certainly a step in the right direction! 

The current backlog has been aggravated, if not actually largely created, by the practice of “Aimless Docket Reshuffling” (“ADR”) by politicos in the DOJ and the White House going back decades. As Administrations and AG’s change, and DHS Enforcement priorities change with them, cases that were once “priorities” are shuffled off to the end of the docket to make way for the new “enforcement priority of the moment.” Other times, Immigration Judges are shuffled or detailed to the new “priority dockets” and their now “non-priority regular cases” are arbitrarily reassigned to other judges (who already are carrying full dockets themselves). Many times, this means taking cases that are “ready for trial” and replacing them with cases that aren’t ready for trial because the respondent needs to find a lawyer, file applications, and prepare the case. Other times, when dockets are shifted around largely without meaningful participation by the Immigration Judges, the DHS files or EOIR “record files” are not available, thus causing further delays.

In that manner, cases are not completed on any regular, predictable schedule, “Individual Hearing” dates become “jokes,” and U.S. Immigration Judges lose both credibility and the last vestiges of independent control over their court dockets as politicos and bureaucrats who neither fully understand nor are properly part of the Immigration Court System screw things up time after time.

Sessions appears anxious to add to and further aggravate these problems, rather than addressing them ion a reasonable and systematic manner with participation of all parties who use and rely on the U.S. Immigration Courts for due process and justice. Shame on him and on our Congress for allowing this to happen!

As I’ve said over and over: It’s past time for Congress to create an independent U.S. Immigration Court system that would be free of these types of highly politicized and totally wasteful shenanigans!

Only an independent U.S. Immigration Court will provide the “level playing field” and truly impartial administration and adjudication necessary to bring these potentially “life or death” cases to conclusion in a manner that is both efficient and in full compliance with fundamental fairness and due process (and, consequently, will find a high degree of acceptance in the U.S. Courts of Appeals, rather than generating too many “returns for redos” as happens in the current “haste makes waste” environment at EOIR.)

PWS

01-10-18

BLOCKED: FEDERAL JUDGE SAYS TRUMP ADMINISTRATION VIOLATED LAW IN RESCINDING DACA –- ISSUES NATIONWIDE INJUNCTION — EXPECT APPEAL!

http://www.cnn.com/2018/01/09/politics/california-judge-daca-applications/index.html

Ariane de Vogue, Dan Berman and Madison Park report for CNN:

“(CNN)A federal judge in California late Tuesday temporarily blocked the Trump administration’s efforts to end the Deferred Action for Childhood Arrivals program.

Judge William Alsup also said the administration must resume receiving DACA renewal applications.
But the ruling is limited — the administration does not need to process applications for those who have never before received DACA protections, he said.
The Trump administration announced the move to draw down the program last September with a planned end for early March. DACA protected young undocumented immigrants who came to the US as children from deportation.
close dialog
The fate of DACA and the roughly 700,000 “Dreamers” is the subject of heated negotiations in Washington, where President Donald Trump, Republicans and Democrats are searching for a way to allow Dreamers to stay while also addressing border security concerns. It is not clear how the order will impact those talks.
The ruling came in a challenge to the Department of Homeland Security brought by the University of California and others.
In his 49-page ruling, Alsup said “plaintiffs have shown that they are likely to succeed on the merits of their claim that the rescission was arbitrary and capricious” and must be set aside under the federal Administrative Procedures Act.
The judge said a nationwide injunction was “appropriate” because “our country has a strong interest in the uniform application of immigration law and policy.”
“Plaintiffs have established injury that reaches beyond the geographical bounds of the Northern District of California. The problem affects every state and territory of the United States,” he wrote.
In response to the ruling, the Department of Justice questioned the legality of DACA, calling it “an unlawful circumvention of Congress.” DOJ spokesman Devin O’Malley said that DHS “acted within its lawful authority in deciding to wind down DACA in an orderly manner” and implied that the legal battles aren’t over yet.
“The Justice Department will continue to vigorously defend this position, and looks forward to vindicating its position in further litigation,” O’Malley said.

‘A huge step in the right direction’

California’s Attorney General Xavier Becerra hailed the ruling as a “a huge step in the right direction” in a statement. A coalition of attorneys general, including Becerra had also filed suit against the federal government over ending DACA, maintaining that it would cause “irreparable harm to DACA recipients.”
In contrast, Mark Kirkorian, the executive director of Center for Immigration Studies, a think tank that advocates for lower immigration, described the ruling as “our lawless judiciary” in a tweet.
The plaintiff, the University of California said in a statement it was “pleased and encouraged” by the judge’s ruling, which would allow DACA recipients to stay in the US as the lawsuits make their way through the courts.
“Unfortunately, even with this decision, fear and uncertainty persist for DACA recipients,” said Janet Napolitano, president of the UC school system and was the Secretary of Homeland Security in 2012 who established DACA.
While the ruling that orders DACA renewals is “a sigh of relief,” it’s a fleeting one, said Karen Tumlin, legal director of the National Immigration Law Center, which advocates for rights of immigrants.
“It is important to remember, however, this is temporary relief by a single federal district court judge, it should not take the pressure off of Congress to do the right thing and enact a permanent solution for these young people.”
Lawmakers are racing toward a January 19 deadline for government funding and a host of issues, including DACA are tied to the negotiations.
“Dreamers deserve permanence they can count on, not legal thrillers. Congress needs to bring that home,” tweeted Tumlin.

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We now essentially have a conflict with a much earlier ruling from USDJ Hanen in Texas who found that a different, but related, Obama-era program called “DAPA” was illegal. That case was affirmed by the Fifth Circuit in a split opinion and went to the Supreme Court where an equally divided Court let the ruling below stand. So, unless new Justice Neil Gorsuch sides with the plaintiffs in this case, its likely to eventually be a loser (and a winner for the Administration) before the Supremes. Hopefully, Congress will resolve this in a way that ultimately makes further litigation unnecessary.

PWS

01-10-18

 

THE GIBSON REPORT — 01-08-18

THE GIBSON REPORT 01-08-18

HEADLINES:

“TOP UPDATES

 

Sessions takes aim at administrative closure

o   ABC: Sessions posed detailed questions challenging the use of “administrative closures,” an increasingly common outcome that allows people to stay in the country without legal status. The attorney general invited feedback from advocates and others, after which time he may issue new instructions for immigration judges nationwide.

o   Matter of CASTRO-TUM, 27 I&N Dec. 187 (A.G. 2018): The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to the authority to administratively close immigration proceedings, ordering that the case be stayed during the pendency of his review.

 

Acting ICE Director Wants to Arrest Politicians Running Sanctuary Cities

NYMag: In an interview Tuesday with Fox News Channel’s Neil Cavuto, Homan said political leaders in sanctuary cities, which don’t cooperate with ICE officials looking to make immigration arrests, are breaking the law when they “knowingly shield and harbor an illegal alien.” “That is a violation of 8 USC 1324. That’s an alien-smuggling statute. I’ve asked the Department of Justice to look at this,” he said.

 

OCC Trying to De-designate UACs?

Catholic Charities: Before IJ Kolbe: It was business as usual until a case that involved a UAC, 13 years old, present with step-father, after counsel stated they were pursuing Asylum, DHS handed her a letter stating that they’re giving her a letter de-designating her client. It all happened very fast, and it was unexpected. Kolbe did look surprise and stated that counsel could still send her application to USCIS and keep her up-to-date with the outcome. My question is, has anyone else had  this letter handed out to them? If so, can you share the letter so we can see what exact language DHS is using and prepare rebuttals?

 

ICE sending G-56 call-in letter after attempted raid

IDP: We just got a call from an individual who was deported (to the wrong country) in 2007, he then reentered in 2008.  He was recently arrested on a criminal case in Rockland County, NY.  About 3 weeks ago — shortly after one of his criminal court dates –, 9 agents, a mix of ICE and the local gang unit of the sheriff’s department, raided his home early in the morning.  He was at work and after waking up his sleeping children and speaking everyone in the home, the agents left without arresting anyone. A few days later, this individual received [a] G-56 letter from ICE in the mail, telling him to report to ERO at 201 Varick Street this Tuesday for “Case Review”, with his immigration documents and valid passport, which seems like a less resource-intensive tactic of ICE to take him into custody to re-deport him.

 

Trump Justice Department Pushes for Citizenship Question on Census, Alarming Experts

ProPublica: The Justice Department is pushing for a question on citizenship to be added to the 2020 census, a move that observers say could depress participation by immigrants who fear that the government could use the information against them. That, in turn, could have potentially large ripple effects for everything the once-a-decade census determines — from how congressional seats are distributed around the country to where hundreds of billions of federal dollars are spent.

 

Fewer family visas approved as Trump toughens vetting of immigrants: Reuters review

Reuters: The number of approvals dropped by nearly a quarter in the first nine months of 2017 to around 406,000 compared to the same period a year earlier when approvals were more than 530,000, despite a similar number of applications during both periods, USCIS data showed.

 

Immigration Clinic Represents Somali nationals in Class Action Lawsuit

ImmProf: The hearing will address whether the court has jurisdiction to consider the petitioners’ claim that they are entitled to a stay of removal while they seek reopening of their removal orders.

 

Motel 6 Gave Guest Information To ICE Agents, Lawsuit Says

NPR: Washington Attorney General Bob Ferguson sued Motel 6 on Wednesday, alleging motel employees gave private information about thousands of guests to U.S. immigration authorities.

 

More workers say their bosses are threatening to have them deported

LA Times: Complaints over immigration-related retaliation threats surged last year in California, according to the Labor Commissioner’s Office. Through Dec. 22, workers had filed 94 immigration-related retaliation claims with the office, up from 20 in all of 2016 and only seven a year earlier.

 

US Commission on Civil Rights Concerned with Alleged Abusive Labor Practices at Immigration Detention Centers

AILA: The Commission calls for heightened oversight and transparency of the Voluntary Work Program within both government and privately-run detention centers.

 

Trump, lawmakers step up talks on immigrant ‘Dreamers’

Reuters: Urgent negotiations aimed at shielding young, undocumented immigrants from deportation intensified on Thursday as Republican U.S. senators emerged from a meeting with President Donald Trump expressing confidence a deal could be struck this month.

 

IJ Lamb’s Retirement

Empire Justice Center: Update 1/8/18: I spoke with IJ Lamb’s legal assistant this morning and she informed me that my individual scheduled for tomorrow was adjourned and all her hearings will be reassigned to a new judge.

 

ACTIONS

 

o   AILA: Call for Examples: Compelling Family Immigration Stories”

 

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

PWS

01-08-18

 

ELISE FOLEY @ HUFFPOST: TRUMP’S WHITE NATIONALIST AGENDA APPEARS ON TRACK TO SINK DREAMER AGREEMENT, PERHAPS RESULTING IN USG SHUTDOWN! – Sen. Durbin, Dems “Just Say No” To Restrictionist Measures!

https://www.huffingtonpost.com/entry/trump-daca-dreamers-dick-durbin_us_5a4fff0ce4b01e1a4b151ad1

Elise writes in HuffPost:

“WASHINGTON  ― President Donald Trump sent senators a lengthy set of demands on Friday that could tank a deal to help Dreamers ― young undocumented immigrants who came to the U.S. as children ― and might risk a government funding agreement in the process.

The document is essentially an immigration restrictionist wish list. It calls for a border wall, more immigration enforcement agents, punishment for so-called “sanctuary cities,” restrictions on citizens and legal residents sponsoring family members’ visas, and policies to make it easier to detain and deport undocumented immigrants. No dollar amounts were included in the list of demands, but The Wall Street Journal reported earlier Friday that Trump is seeking nearly $18 billion to pay for a border wall.

Democrats and immigrant rights activists have said they won’t accept the White House’s demands in a deal to grant legal status to Dreamers, hundreds of thousands of whom are at risk of losing deportation protections because Trump ended the Deferred Action for Childhood Arrivals or DACA program.

The list could be enough to trigger a Democratic revolt on a government funding bill that needs to pass later this month, Senate Minority Whip Dick Durbin (D-Ill.), whose office shared the White House’s list with reporters, said in a statement.

“President Trump has said he may need a good government shutdown to get his wall,” Durbin said. “With this demand, he seems to be heading in that direction. … It’s outrageous that the White House would undercut months of bipartisan efforts by again trying to put its entire wish-list of hardline anti-immigrant bills—plus an additional $18 billion in wall funding—on the backs of these young people.”

Trump ended DACA in September and said Congress should act to give more permanent protections to recipients of the two-year work permits and deportation relief. DACA recipients will begin to lose permits in greater numbers in March, although activists estimate they’re already losing them at a rate of about 122 per day.

In the months since Trump ended the program, the White House has put out long lists of immigration priorities, and Trump has made broad pronouncements in public comments and tweets, largely focused around building a wall, ending the diversity visa lottery and eliminating so-called “chain migration,” immigration restrictionists’ preferred term for family reunification visas.

The list of demands was initially created in October, with Stephen Miller, a Trump policy adviser, listed as the author of the document, according to the properties on the PDF file. But senators didn’t get a copy until Friday.

The White House did not immediately respond to a request for comment on the document.

Democrats have said they are willing to give Trump some of what he wants on border security, such as more infrastructure, technology and funds, in exchange for legal status for Dreamers. But they, and Dreamers themselves, have argued any deal must be proportional — not everything Republicans want in exchange for legal status for one subset of the undocumented population. During comprehensive immigration reform efforts in 2013, for example, Democrats agreed to an overhaul of the legal immigration system, border security measures and enforcement as part of a package that would have also granted a path to legal status and eventual citizenship for much of the undocumented immigrant population.

Democrats, activists and even some Republicans have warned that piling on more immigration issues has the potential to sink a deal — it happened during past reform efforts and could again now.

The document the White House sent to senators on Friday could indicate the administration either thinks it can get Democrats to settle because of their desire to help Dreamers, or that it doesn’t really want a deal at all.

I am not a bargaining chip for Stephen Miller’s vendetta against brown and black people. Offering up my safety in exchange for the suffering of immigrant families is sick and we won’t stand for it. Greisa Martinez Rosas, advocacy director for United We Dream

The demands include ending the diversity visa lottery and limiting refugee intake, as well as allowing citizens and legal permanent residents to sponsor only minor children and spouses for green cards ― shutting out the ability to bring over adult children or siblings. Trump has disparaged both the diversity visa lottery and “chain migration” as dangerous by citing two terror incidents allegedly perpetrated by people who entered through those programs, although there is no evidence there is a greater risk of terror by immigrants with those visas.

The White House also asked for funds to hire 10,000 additional Immigration and Customs Enforcement officers and to give local police more authority to assist with deportation efforts. Another priority is to more easily penalize “sanctuary cities,” the loose term for jurisdictions that don’t fully cooperate with immigration enforcement, often because they view it as bad for community policing or because of constitutional concerns.

The list also includes changing policies for people seeking asylum and for unaccompanied children apprehended at the border, restricting relief and making it easier to quickly deport them. It would also mandate E-Verify, a system that allows employers to check immigration status of would-be hires, something immigrant advocates and some business interests oppose because there currently is no pathway for many undocumented people in the U.S. to get status and some industries say they can’t find enough willing legal workers.

The demands include ending the diversity visa lottery and limiting refugee intake, as well as allowing citizens and legal permanent residents to sponsor only minor children and spouses for green cards ― shutting out the ability to bring over adult children or siblings. Trump has disparaged both the diversity visa lottery and “chain migration” as dangerous by citing two terror incidents allegedly perpetrated by people who entered through those programs, although there is no evidence there is a greater risk of terror by immigrants with those visas.

The White House also asked for funds to hire 10,000 additional Immigration and Customs Enforcement officers and to give local police more authority to assist with deportation efforts. Another priority is to more easily penalize “sanctuary cities,” the loose term for jurisdictions that don’t fully cooperate with immigration enforcement, often because they view it as bad for community policing or because of constitutional concerns.

The list also includes changing policies for people seeking asylum and for unaccompanied children apprehended at the border, restricting relief and making it easier to quickly deport them. It would also mandate E-Verify, a system that allows employers to check immigration status of would-be hires, something immigrant advocates and some business interests oppose because there currently is no pathway for many undocumented people in the U.S. to get status and some industries say they can’t find enough willing legal workers.”

********************************************
Read the rest of Elise’s report at the link.
I think that “Dreamers” are a good place for the Dems to take a stand. And, given the “Bakuninist Wing” of the GOP (who share Trump’s desire to destroy Government, but are dissatisfied with the pace of the destruction), it’s going to be very difficult for Trump to get any type of budget passed without Democratic support.
The DHS needs an additional 10,000 agents like we all need holes in our heads. They don’t have enough legitimate law enforcement functions to perform with the staff they have; that’s why they have time for chasing after kids and stuffing their generally law-abiding parents into an already overwhelmed Immigration Court system for hearings that probably won’t take place until long after this Administration is history. (And, that’s even without Gonzo’s current “plan” which appears to be intentionally “jacking up” the Immigration Court backlog to more than 1,000,000 cases overnight by “recycling” all of the currently “administratively closed” cases!)
The words of Greisa Martinez Rosas, advocacy director for United We Dream,  are worth repeating and keeping in mind:
“I am not a bargaining chip for Stephen Miller’s vendetta against brown and black people. Offering up my safety in exchange for the suffering of immigrant families is sick and we won’t stand for it.”
PWS
01-06-17

GONZO’S WORLD: SESSIONS APPEARS READY TO ELIMINATE OR SEVERELY RESTRICT AUTHORITY OF EOIR JUDGES TO “ADMINISTRATIVELY CLOSE” CASES!

For some time now, immigrant advocates have been fearing/expecting Attorney General Jeff Sessions to use his authority to “certify” BIA cases to himself as a means to undo or restrict BIA administrative precedents that might be helpful or favorable to migrants.

For those new to the practice, the U.S. immigration Court, including both the trial courts and the Appellate Division (“BIA”), is a “wholly owed subsidiary” of the Attorney General and the U.S. Department of Justice. The Attorney General gets to select U.S. Immigration Judges and BIA Appellate Judges, and they basically serve in their judicial positions at his pleasure (although, for the most part, they can’t be removed from their positions as DOJ Attorneys without cause — in other words, they can  be reassigned to non-judicial duties at the same pay and grade largely “at will”).

Additionally, the Attorney General has the authority to promulgate regulations governing the jurisdiction and authority of the Immigration Courts and the BIA. Beyond that, he can actually change the result in individual cases with which he disagrees by a regulatory device known as “certifying” cases to himself for final decision. This process, of course, also applies to BIA precedents, which otherwise are binding on U.S. Immigration Judges nationwide.

The process of certification has now begun. Today, Sessions “certified” a BIA case to himself for the apparent purpose of stripping or limiting the authority of the BIA and Immigration Judges to “administratively close” cases. “Administrative closure” is a method of removing the case from the court’s active docket (significantly, it then no longer counts toward the “backlog” of pending cases).

It is normally used for cases that are pending for adjudication somewhere within the USCIS. It had also been widely used, particularly during the Obama Administration, as a means of implementing decisions by the ICE Chief Counsel to exercise “prosecutorial discretion” or “PD” in particular humanitarian situations, as well as a way for removing so-called “DACA” grants from the courts’ active dockets.

The particular case certified is Matter of Castro-Tum, 27 I&N Dec. 87 (A.G. 2018). The BIA’s decision is unpublished (“non-precedcential”). However, Session’s real target appears to be the BIA’s precedents Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), which gave Immigration Judges at least some independent authority to administratively close cases over the objection of a party (although, importantly, not the authority to close a case for “PD” without ICE Counsel’s consent). While Matter of Castro-Tum asks for briefing on a number of questions, it seems highly unlikely that Sessions went to the trouble of certifying the case to reaffirm, continue, or expand the use of “administrative closing.”

“Administrative closing” was initiated by the first EOIR Chief immigration Judge, the late William R. Robie, as a way of clearing court dockets of cases that were not actually under active consideration before the Immigration Court. It has been an effective way or reducing and prioritizing immigration Court dockets that has presented few problems in administration. Its elimination or restriction could lead to more “Aimless Docket Reshuffling” (“ADR”) or bigger backlogs.

Some advocates have even suggested that Sessions actually intends to maximize the Immigration Court’s already huge 660,000 case backlog to support a request for 1) a dramatic immediate increase in immigration Judge funding, or 2) a dramatic expansion of the number of individuals subject to so-called “Administrative (or “Expedited”) Removal” by DHS Enforcement officers without recourse to the immigration Court, or both.

Stay tuned to see which BIA precedents might be next on Session’s “chopping block.”

Here’s a copy of Matter of Castro-Tum:

https://www.justice.gov/eoir/page/file/1022366/download

Cite as 27 I&N Dec. 187 (A.G. 2018) Interim Decision #3911

Matter of Reynaldo CASTRO-TUM, Respondent

Decided by Attorney General January 4, 2018

U.S. Department of Justice Office of the Attorney General

The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to the authority to administratively close immigration proceedings, ordering that the case be stayed during the pendency of his review.

BEFORE THE ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.l(h)(l)(i) (2017), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. The Board’s decision in this matter is automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist me in my review, I invite the parties to these proceedings and interested amici to submit briefs on points relevant to the disposition of this case, including:

1. Do Immigration Judges and the Board have the authority, under any statute, regulation, or delegation of authority from the Attorney General, to order administrative closure in a case? If so, do the Board’s decisions in Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), and Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017), articulate the appropriate standard for administrative closure?

2. If I determine that Immigration Judges and the Board currently lack the authority to order administrative closure, should I delegate such authority? Alternatively, if I determine that Immigration Judges and the Board currently possess the authority to order administrative closure, should I withdraw that authority?

3. The regulations governing removal proceedings were promulgated for “the expeditious, fair, and proper resolution of matters coming before Immigration Judges.” 8 C.F.R. § 1003.12 (2017). Are there any circumstances where a docket management device other than administrative closure—including a continuance for good cause shown (8 C.F.R. § 1003.29 (2017)), dismissal without prejudice (8 C.F.R. § 1239.2(c) (2017)), or termination without prejudice (8 C.F.R. § 1239.2(f))—would be inadequate to promote that objective? Should there be different legal consequences, such as eligibility to apply for a provisional waiver of certain grounds of inadmissibility under the immigration laws or for benefits under federal or state programs, where a case has been administratively closed rather than continued?

4. If I determine that Immigration Judges and the Board do not have the authority to order administrative closure, and that such a power is unwarranted or unavailable, what actions should be taken regarding cases that are already administratively closed?

187

Cite as 27 I&N Dec. 187 (A.G. 2018) Interim Decision #3911

The parties’ briefs shall not exceed 15,000 words and shall be filed on or before February 2, 2018. Interested amici may submit briefs not exceeding 9,000 words on or before February 9, 2018. The parties may submit reply briefs not exceeding 6,000 words on or before February 20, 2018. All filings shall be accompanied by proof of service and shall be submitted electronically to AGCertification@usdoj.gov, and in triplicate to:

United States Department of Justice Office of the Attorney General, Room 5114 950 Pennsylvania Avenue, NW Washington, DC 20530

All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored.

188

If you want a copy of the BIA’s unpublished decision in Castro-Tum, go on over to LexisNexis Immigration Community at this link:

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2018/01/05/a-g-sessions-refers-administrative-closure-question-to-himself-matter-of-castro-tum-27-i-amp-n-dec-187-a-g-2018.aspx?Redirected=true

PWS

01-05-18

READ (RETIRED) JUDGE THOMAS LISTER’S “Personal pledge for planetary peace!”

http://lacrossetribune.com/opinion/columnists/article_424899f4-67e5-59b6-92dc-dc9e41c8e67a.html

Judge Lister writes in the LaCrosse (WI) Tribune:

“Our planet is beset with war, terror, hunger, disease, poverty and environmental degradation which must end soon if future generations are to survive and progress.

Perpetuating hatred, ignorance, bias, prejudice, selfishness, greed, fear, extremism, jealousy and misunderstanding from generation to generation perpetuates the world’s differences, disasters, degradations and difficulties.

Without an immediate, dramatic change of direction individually and collectively, our human race will come to where we are presently — and suicidally

— headed.

I and many others doubt whether individual actions or reactions to the planet’s universal problems can or will make any difference.

I personally pledge that I will forever peacefully condemn, resist and denounce killing, terror, war, crime, prejudice, vengeance and the loss or limitation of basic human rights – including, but not limited to:

  • The right to adequate food, shelter, clean water, clean air and clothing.
  • The right to health care.
  • The right to education.
  • The right to work for a living.
  • The right to worship one’s highest spirit and/or creator.
  • The right to a homeland free of challenge or aggression.

I will work to promote remedial action by those who have too much in favor of those who have too little; and, by those who can offer aid to those who need help.

I will not tolerate — without my active peaceful protest and, where necessary my peaceful civil disobedience — any government action that violates these covenants.

I support one planetary, plenary police power, consisting of fair representation from all nations, which will enforce the principles of universal law and peace through a multinational force governed by the United Nations.

I support one World Court, representative of all nations, to interpret and administer its universal rights and laws and principles.

I support a renewed and more responsible United Nations, free of veto power vested in any single nation or select group of nations.

Any declaration of war implied by any nation, government, individual or organized entity, other than the United Nations, shall be a declaration against all earth’s people; and, I will oppose any such aggressor.

I will look anew at earth’s environmental status as well as my own in light of the damage humankind has wrought; and, I will endeavor to waste no resource, to conserve energy and prevent pollution of air, water and soil. I will try to use no more energy than is necessary to support my family.

I will teach my children and grandchildren principles of universal tolerance, love, equality, understanding, compassion, sympathy, empathy and freedom. I will teach the lessons of history and world events that have led us to this perilous time. This promotion of universal principles has become so necessary to the survival of humankind and the preservation of our earth.

I pledge to end the exposure of children to violence, including that portrayed in the media and I will also reject such portrayals myself.

I will pray for all those who are asked to understand this simultaneous planet-wide denouncement of violence and killing and vengeance even though they and their loved ones have been brutalized and victimized; and, I will promote the message that we must altogether say “enough” to violence, terror and killing. I believe earth’s present generations must agree to forgive terrible past and present wrongs and forego future wrongs and revenge.

I will respect and work to protect human differences in religion, culture, color, nationality, language, gender, age, ethnicity and political beliefs.

This dramatic and immediate change, so essential to preserving the planet and its people, will not come about through slow generational purging of the problems and prejudices that plague our earth.

We must act together to adopt sweeping, global change that will provide all people with the ultimate promise and hope, that we can together act to change tomorrow. I pledge to act responsively and responsibly to achieve this end.

I support a general amnesty for those who have engaged in conflict, so long as they terminate armed conflict and lay down their arms forever.

We must redirect worldwide economic resources from weapons and armies, fear and terror, to provide world sustenance, health, universal education and other basic human rights and needs for all. I will work for the preservation of the earth’s natural resources and development of clean renewable alternative energy to sustain future life on the planet.

I will urge others to take this pledge including my governmental representatives at all levels, my religious leaders, my nation’s military leaders, educational leaders and corporate leaders.

If we support these changes, there can and will be peace on earth and preservation of our planet and protection and perpetuation with dignity for humankind.

Thomas Lister is a trial lawyer, former Jackson County district attorney and circuit court judge. He is retiring from Fitzpatrick Skemp & Associates, La Crosse.

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

Judge Thomas “Tom” Lister and I were members of the Class of 1973 at the University of Wisconsin School of Law. (No Orange Bowl — or indeed any Bowl — victories in those days — we were happy if the Badger Football team won a game. But, we faithfully attended the games in the “law student section” and the “fifth quarter” afterward!) Indeed, Tom, his wonderful wife Sally, my wife Cathy, and I were very close friends throughout those three years and have remained in touch ever since. Tom and I were members of the same “study group.”

Like me, Tom has seen the U.S. legal system from a number of different vantage points — as a prosecutor, a judge, and a private practitioner. Several years ago at our 40th UW Law Reunion we had an interesting discussion of the failures of the traditional law enforcement approach to drug and opioid use, a particular problem not only in Northern Virginia but in the largely rural Jackson Country Wisconsin where Tom was a Circuit Judge and, some years prior to that, the District Attorney.

I find Tom’s words and thoughts inspiring, particularly at a time when the level of political and intellectual discourse in our country is often quite the opposite, to say the least. I particularly appreciate his message about tolerance and the recognition of basic universal human rights — a subject which has concerned me throughout my legal career.

PWS

01-04-18

DEPORTATION REGIME: Long-Time GOP Voter Rebels When Deportation Hits Close To Home!

https://www.washingtonpost.com/local/immigration/the-air-force-colonel-the-ballroom-dance-instructor-and-the-us-immigration-system/2017/12/27/1b2500f6-e419-11e7-833f-155031558ff4_story.html

 

Maria Sacchetti reports for WashPost:

“For most of the past six decades, the Republican Party could count on Charlie Heimach. The retired Air Force colonel donated money to President Richard Nixon, backed Ronald Reagan and both Bushes, and cast his ballot last year for Donald Trump.

But in the recent Virginia governor’s race, Heimach voted for the Democrat, because of the Trump administration’s crackdown on illegal immigration, and its attempts to deport a ballroom dancing instructor from the studio where Heimach, 79, likes to Lindy Hop.

Since May, Heimach and a disparate crew of lawyers, military veterans, a dog walker, an entomologist and others united in their love for dancing have been on a crusade to protect the instructor they call “G,” an undocumented immigrant from Mongolia who was arrested twice in 2016 for drunken driving.

To some, their efforts are misguided — even dangerous.

But the ballroom dancers say Galtsog Gantulga is a gifted instructor who senses when his students need to talk or want to dance but are too shy to take the initiative. He hurt no one in the two drunken driving incidents, they point out, and has served time behind bars. He also sold his car and joined Alcoholics Anonymous.

In the America these dancers know, such a person deserves another chance, a view not always held in the U.S. immigration system.

For the moment, thanks to their persistence, Gantulga has a reprieve.

“He built his life over here,” said Mealy Chhim, a retired software engineer who was part of the effort. “He just messed up.”

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

Read Maria’s complete article at the link.

This is why guys like Trump, Gonzo, and Homan invariably strive to “dehumanize” immigrants in pushing their harsh deportation agenda.

PWS

12-27-17

THE HILL: Nolan Says That Expedited Removal Can “Ease The Burden” Of Immigration Detention; I Don’t Think So!

http://thehill.com/opinion/immigration/365829-expedited-removal-can-solve-concerns-with-immigration-detention

Nolan Rappaport writes at The Hill:

“Earlier this month, the DHS Office of Inspector General (IG) released a report on “Concerns about ICE Detainee Treatment and Care at Detention Facilities.” According to the ACLU, the way to address the violationsdescribed in this “damning new report” is to “release people from immigration detention and prohibit ICE from using dangerous and inhumane jails.”

The IG found problems at four of the five detention centers it inspected, but it is a stretch to call the report “damning” or to claim that ICE is “using dangerous and inhumane jails.” Many of the problems were relatively minor, and, apparently, all of them are going to be corrected.

In addition to federal service centers, ICE uses facilities owned and operated by private companies and state and local government facilities. The contracts of facilities that hold ICE detainees require them to adhere to the 2000 National Detention Standards, the 2008 Performance-Based National Detention Standards (PBNDS), or the 2011 PBNDS.

. . . .

The immigration court backlog is so long that, as of October 2017, the average wait for a hearing was 691 days, and Trump’s backlog reduction plan isn’t going to bring it under control.

ICE cannot release detainees because wait-times are too long. Many of them will not return for their hearings. During FY2015, 23.4 percent of the aliens who were released from custody did not return for their hearings, and releases were limited to cases in which there was reason to expect the aliens to return.

I see only two solutions, reduce the backlog by removing aliens from the immigration court and disposing of their cases in expedited removal proceedings, which do not require a hearing before an immigration judge, or have a large legalization program.

Which alternative do you expect the Republicans to choose?”

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

Go on over to The Hill to read Nolan’s complete article.

Why Expedited Removal Isn’t the Answer (Leaving Aside The Substantial Legal and Moral Issues Involved):

  • Under Trump, DHS has already “maxed out” the use of expedited removal at the border. 
  • While Trump’s Executive Order called for an expansion of expedited removal to individuals who have been in the country for less than two years, that requires a regulatory change which, curiously, the DH’s has failed to accomplish in the nearly one year since the Executive Order.
  • Even with expedited removal expanded to two years, the vast majority of individuals comprising the “court backlog” have been there at least that long and therefore wouldn’t be candidates for expedited removal.
  • Of those limited number who have been in the U.S. for less than two years, many have already passed “credible fear” or “reasonable fear” and are, therefore, entitled to Individual hearings.
  • Some of those removed from the docket for expedited removal could still pass the “credible fear” or “reasonable fear” process before the Asylum Office and have their cases restored to the Immigraton Court docket (with an entirely new proceedings that would have to “start from scratch”).
  • Under BIA rulings, once proceedings have commenced before the Immigration Court, the DHS can’t unilaterally remove them from the court’s docket for expedited removal. It requires a DHS motion to terminate, a chance for the respondent to be heard in opposition, and a decision  by the Immigration Judge. Given the administrative mess at both EOIR and DHS Chief Counsel, filing and responding to those motions can be an administrative problem. Moreover, although almost all motions to terminate for expedited removal ultimately are granted by the Immigraton Judges, the termination is a “final order” subject to appeal to the BIA.
  • Individuals placed in expedited removal whose “credible fear’ or “reasonable fear” claims are rejected, have a right to expedited review before an Immigraton Judge. Such reviews generally take precedence over other types of cases, but do not produce “final orders” from the Immigraton Judge. At some level, ratcheting up the expedited removal process actually inhibits the processing of previously scheduled cases before the Immigration Court.

What Does Work:

  • Alternatives to Detention (“ADT) such as ankle bracelet monitoring. See, e.g.,  http://lirs.org/wp-content/uploads/2017/06/The-Real-Alternatives-to-Detention-FINAL-06.27.17.pdf   
  • Government statistics show that juveniles with lawyers appear for their hearings over 95% of the time! See, e.g.https://www.justice.gov/eoir/file/852516/download
    • Recent studies of results of The New York Immigrant Family Unity Project, which guarantees lawyers to respondents, showed that such represented individuals were 12 times more likely to win their cases. See https://www.vox.com/policy-and-politics/2017/11/9/16623906/immigration-court-lawyer
    • This strongly suggests that immigration hearings conducted for unrepresented individuals are inherently unfair and a denial of due process, something that should be (but isn’t) the number one concern of the DOJ and EOIR.
    • My own experience at the Arlington Immigration court was that individuals 1) represented by counsel , and 2) with applications for relief filed showed up for their hearings nearly 100% of the time. Indeed, beyond criminal record and family ties, those were the two most significant factors for me in setting immigration bonds.

An Administration truly interested in improving the performance of the Immigration Courts, achieving due process, and lessening the need for immigration detention would be working closely with NGOs, bar associations, states and localities, and ADT providers to develop cooperative  ways of maximizing representation in Immigraton Court, But, this Administration is far more interested in advancing a xenophobic, White Nationalist agenda than it is in fairness, due process, or solving problems.

PWS

12-23-17

MICA ROSENBERG @ REUTERS ANALYZES GONZO’S LATEST ATTACK ON CHILDREN (OR, IN “GONZOSPEAK” “UNMARRIED INDIVIDUALS UNDER THE AGE OF 18”) IN US IMMIGRATION COURT – No More “Mister Nice Guy” — Show ’em The Ugly Side Of America — These Kids Are Out To Get Us (Even If They Are So Scared, Confused, and Traumatized They Barely Know The Time Of Day)

https://www.reuters.com/article/us-usa-immigration-children-exclusive/exclusive-u-s-memo-weakens-guidelines-for-protecting-immigrant-children-in-court-idUSKBN1EH037

Mica reports:

“A Dec. 20 memo, issued by the Executive Office for Immigration Review (EOIR) replaces 2007 guidelines, spelling out policies and procedures judges should follow in dealing with children who crossed the border illegally alone and face possible deportation.

The new memo removes suggestions contained in the 2007 memo for how to conduct “child-sensitive questioning” and adds reminders to judges to maintain “impartiality” even though “juvenile cases may present sympathetic allegations.” The new document also changes the word “child” to “unmarried individual under the age of 18” in many instances.

An EOIR official said the new memo contained “clarifications and updates” to 10-year-old guidance “in order to be consistent with the laws as they’ve been passed by Congress.” The new memo was posted on the Justice Department website but has not been previously reported.

Immigration advocates said they worry the new guidelines could make court appearances for children more difficult, and a spokeswoman for the union representing immigration judges said judges are concerned about the tone of the memo.

President Donald Trump has made tougher immigration enforcement a key policy goal of his administration, and has focused particularly on trying to curb the illegal entry of children. The administration says it wants to prevent vulnerable juveniles from making perilous journeys to the United States and eliminate fraud from programs for young immigrants.

One changed section of the memo focuses on how to make children comfortable in the court in advance of hearings. The old guidance says they “should be permitted to explore” courtrooms and allowed to “sit in all locations, (including, especially, the judge’s bench and the witness stand).”

The new guidance says such explorations should take place only “to the extent that resources and time permit” and specifically puts the judge’s bench off limits.

The new memo also warns judges to be skeptical, since an unaccompanied minor “generally receives more favorable treatment under the law than other categories of illegal aliens,” which creates “an incentive to misrepresent accompaniment status or age in order to attempt to qualify for the benefits.” It also says to be on the lookout for “fraud and abuse,” language that was not in the previous memo.

‘WOLVES IN SHEEP CLOTHING’

Immigration judges are appointed by the U.S. Attorney General and courts are part of the Department of Justice, not an independent branch. The only sitting immigration judges routinely allowed to speak to the media are representatives of their union, the National Association of Immigration Judges.

Dana Marks, a sitting judge and spokeswoman for the union, said the “overall tone” of the memo “is very distressing and concerning to immigration judges.”

“There is a feeling that the immigration courts are just being demoted into immigration enforcement offices, rather than neutral arbiters,” Marks said. “There has been a relentless beating of the drum toward enforcement rather than due process.”

Former immigration judge Andrew Arthur, who now works at the Center for Immigration Studies, which promotes lower levels of immigration overall, said the new guidelines were needed.

In their previous form, he said, “so much emphasis was placed on the potential inability of the alien to understand the proceedings … that it almost put the judge into the position of being an advocate.”

The courts have had to handle a surge in cases for unaccompanied minors, mostly from Central America, after their numbers sky-rocketed in 2014 as violence in the region caused residents to flee north.

While illegal crossings initially fell after Trump took office, U.S. Customs and Border Protection said that since May, each month has seen an increase in children being apprehended either alone or with family members.

Attorney General Jeff Sessions said in a speech in Boston in September that the special accommodations for unaccompanied minors had been exploited by “gang members who come to this country as wolves in sheep clothing.”

Echoing some of these concerns, the new memo notes in a preamble that not all child cases involve innocents, and that the courts might see “an adolescent gang member” or “a teenager convicted as an adult for serious criminal activity.”

Jennifer Podkul, policy director of Kids in Need of Defense (KIND) said Congress included special procedural protections for immigrant children in a 2008 anti-trafficking bill to “make sure that a kid gets a fair shot in the courtroom.”

“These kids are by themselves telling a very complicated and oftentimes very traumatic story,” said Podkul. “The approach of this memo, which is much more suspicious, is not going to help get to the truth of a child’s story.”

In cases where children are called to testify, the old guidance instructed judges to “seek to limit the amount of time the child is on the stand.” The new guidance says that judges should “consider” limiting the child’s time on the stand “without compromising due process for the opposing party,” which is generally a government prosecutor.

The memo leaves in a range of special accommodations made for children, including allowing them to bring a pillow or booster seat or a “toy, book, or other personal item.” It also maintains that cases involving unaccompanied minors should be heard on a separate docket when possible and that children should not be detained or transported with adults.

Reporting by Mica Rosenberg; Editing by Sue Horton and Mary Milliken”

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

Yes, my dear friend Judge Dana Leigh Marks, Gonzo sees and treats the U.S. Immigration Courts as part of DHS Enforcement — “Just a Whistlestop on The Deportation Express.”

After 35 years of flawed DOJ stewardship and improper political meddling by all Administrations, the U.S. Immigration Courts are largely back in the same hopeless, understaffed, incompetently administered, enforcement-dominated mess that they were in 1983 when the Reagan Administration created EOIR to provide at least some actual and apparent separation between prosecutorial and judicial functions.

The only solution is an independent Article I U.S. Immigration Court. Until that happens, failure, inefficiency, ands unfairness will continue to plague the immigration Court system.

Eventually, the Article III reviewing courts are going to have to decide whether 1) to simply put the Constitution and their judicial oaths in the drawer and give the Executive a “free pass” on immigration; or 2) do their duty, stop the train, and essentially take over the administration of the immigration Courts by ordering Immigration Judges and the BIA to conform to certain basic due process requirements or face the prospect of having almost every Petition for Review returned for a “redo.” If you think the backlog is bad now, wait till that happens.

At this point, I hope for #2, but see #1 as a distinct possibility, particularly as Trump continues to co-opt the Article III judiciary with judges for whom loyalty to Trump and his agenda appears a more important qualification that a reputation for scholarship, legal excellence, collegiality, impartiality, and fairness.

I also found the comments of my former colleague Judge (Retired) Andrew Arthur somewhat puzzling. If you are a judge in a courtroom actually trying to carry out your constitutional duty to provide due process and fairness; the DHS is represented by an experienced Assistant Chief Counsel; and you have an unrepresented kid who is scared to return his or her home country, who is going to be that child’s advocate if not the Immigration Judge?

Rather than bogus guidelines, the Administration should be doing the right thing and the smart thing — working with the private bar to insure that cases involving claims for asylum and other protection are docketed and scheduled in a manner that insures that each applicant will have reasonable access to pro bono or low bono counsel before filing the Form I-589 for asylum.

To take the most obvious example, Jennifer Podkul, Policy Director of Kids in Need of Defense (“KIND), and Wendy Young, Executive Director of KIND are as smart as any lawyers around. They want the Immigration Court system to succeed in a fair and efficient manner. They have spent more time thinking about the problems of kids in Immigraton Court and how to solve them than any individual or group of individuals now in the US. Government.

So, instead of “trashing” immigration lawyers, why don’t Sessions and his subordinates at DOJ sit down with Young, Podkul, and some of their other high-powered NGO colleagues, and Judge Marks and the NAIJ and work out a solution for getting kids through the Immigraton Court system in a fair manner consistent with Due Process? Why is Sessions so afraid to venture outside of his little “restrictionist world” in trying to solve problems?

But, unfortunately, this Administration is much more interested in forcing failure on the system and then pointing fingers at the victims, that is, the migrants seeking justice, than it is in achieving the real reforms necessary to get our U.S. Immigration Courts operating in a fair, impartial, and efficient manner, consistent with the law and Constitutional Due Process.

PWS

12-23-17

GONZO’S WORLD: JUDICIAL REBELLION – Less Than One Year Into Gonzo’s Reign at The DOJ, One of America’s Most Conservative Judiciaries Seeks Protection From His Plans to Politicize The U.S Immigration Courts!

http://www.asylumist.com/2017/12/19/immigration-judges-revolt-against-trump-administration/

Jason “The Asylumist” Dzubow writes:

“In a little noted, but quite extraordinary move, the National Association of Immigration Judges (“NAIJ”) has asked Congress to protect its members (Immigration Judges) from the Trump Administration (their employer). The reason? The Trump Administration is seeking to “evaluate judges’ performance based on numerical measures or production quotas.” According to NAIJ, “If EOIR is successful in tying case completion quotas to judge performance evaluations, it could be the death knell for judicial independence in the Immigration Courts.” “Judges can face potential termination for good faith legal decisions of which their supervisors do not approve.”

EOIR is developing a more efficient way to adjudicate cases (and it comes with a free drink!).

Let’s start with a bit of background. NAIJ is a voluntary organization of United States Immigration Judges. It also is the recognized representative of Immigration Judges for collective bargaining purposes(in other words, the IJs’ union): “Our mission is to promote the independence of Immigration Judges and enhance the professionalism, dignity, and efficiency of the Immigration Courts, which are the trial-level tribunals where removal proceedings initiated by the Department of Homeland Security are conducted.”

According to NAIJ, the most important regulation governing IJ decision-making is 8 C.F.R. § 1003.10(b). This regulation requires that immigration judges exercise judicial independence. Specifically, “in deciding the individual cases before them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their authorities under the Act and regulations that is appropriate and necessary for the disposition of such cases.” 8 C.F.R. §1 003.10(b).

Up until now, IJs were exempted from quantitative performance evaluations. According to NAIJ, “The basis for this exemption was rooted in the notion that ratings created an inherent risk of actual or perceived influence by supervisors on the work of judges, with the potential of improperly affecting the outcome of cases.”

The Trump Administration is now moving to change the way it evaluates IJs. The main reason for the change is the Administration’s goal of reducing the very-large backlog of cases in Immigration Court (currently, there are about 640,000 pending cases). The Executive Office for Immigration Review (EOIR – the office that administers the nation’s Immigration Courts) recently announced a plan to “transform[] its institutional culture to emphasize the importance of completing cases.” In other words, EOIR will judge its judges based–at least in part–on the number of cases completed.

NAIJ has called this development “alarming” and a threat to judicial independence. Why? Because when judges are forced to complete a certain number of cases, they may be unable to devote the necessary time to each case. As a result, the ability to make proper, well-thought-out decisions will suffer.

This is already a problem in Immigration Court. One IJ famously quipped that his job involved adjudicating death penalty cases in a traffic court setting. And so pushing judges to do more cases in less time will potentially impact the alien’s due process rights, and the integrity of our Immigration Courts.

NAIJ has long believed that the system needs a “structural overhaul” and has advocated for converting the Immigration Courts into Article I courts. Article I refers to the first article in the U.S. Constitution, the section on legislative (i.e., Congressional) powers. The idea is that Congress would establish an independent immigration court, much like it created a tax court and a court of veterans appeal. Such a court would be independent of the Executive Branch–the branch of government tasked with enforcing immigration law (currently, IJs are employees of the Department of Justice, a part of the Executive Branch).

NAIJ recognizes that creating Article I immigration courts “may not be feasible right now,” but it nevertheless urges Congress to protect the nation’s IJs from the new Trump Administration policy:

Congress can… easily and swiftly resolve this problem through a simple amendment to the civil service statute on performance reviews. Recognizing that performance evaluations are antithetical to judicial independence, Congress exempted Administrative Law Judges (ALJs) from performance appraisals and ratings by including them in the list of occupations exempt from performance reviews in 5 U.S.C. § 4301(2)(D). This provision lists ALJs as one of eight categories (A through H) of employees who are excluded from the requirement of performance appraisals and ratings. To provide that same exemption to Immigration Judges, all that would be needed is an amendment to 5 U.S.C. § 4301(2), which would add a new paragraph (I) listing Immigration Judges in that list of exempt employees.

The fact that IJs themselves are concerned about the Administration’s move is worrying. The Immigration Judges I know are conscientious and take their jobs very seriously (in contrast to the Trump Administration, which seems utterly lacking in seriousness). If EOIR is making it more difficult for IJs to do their duty, as they understand it, then something is clearly wrong.

Perhaps the IJs’ concerns are overblown. Maybe EOIR will implement the new case completion standards in a way that does not damage judicial independence or due process. But given the Administration’s track record in general, and the inexperienced acting director appointed to head EOIR, it’s difficult to have much confidence in the new policy. Since Congress is unlikely to act on NAIJ’s request for protection, I suppose we will see soon enough how these changes affect the Immigration Courts.

Finally, in my opinion, EOIR has largely misdiagnosed the problem. While some delay may be caused by IJs kicking the can down the road, or by aliens “playing” the system, most delay is systematic–it is caused by reshuffling Administration priorities, which affect how DHS and DOJ schedule cases. I doubt that imposing numerical quotas on IJs will do much to improve the situation. Other solutions–facilitating pre-trial conferences, reforming the Master Calendar system, better use of technology, imposition of costs, premium processing for certain applicants–might be more effective. Everyone agrees that reducing the backlog is a worthy goal, but case completion requirements are probably not the best way to achieve that end.”

************************************
“Extraordinary” to be sure! Folks, this isn’t the Ninth Circuit or even the Seventh, Second, or Fourth Circuit, all of which from time to time have “stood tall” for the Due Process rights of migrants.
For those unfamiliar with the process, the U.S. immigration Court is a “captive Administrative Court” functioning as part of the U.S. Department of Justice (“DOJ”) rather as an independent judiciary established under Article III or Article I of the U.S. Constitution.
For the past 17 years, the DOJ (with the exception of an ill-fated move by the Bush II Administration to hand out Immigration Judgeships as political rewards to their faithful) has gone out of its way to insure that those selected as Immigration Judges have a record demonstrating a “commitment to achieving agency priorities.” Translated from bureaucratese, that means that they understand the DHS immigration enforcement objectives and will not “rock the boat” by expanding or recognizing any new rights for migrants unless given permission to do so by the DOJ or DHS.
Not surprisingly, this has resulted in a judiciary where the overwhelming number of new U.S, immigration Judges appointed since 2000 — nearly 90% — come from “safe” government backgrounds, primarily from the DHS. Moreover, no “Appellate Immigration Judge” (or, “Board Member”) at the BIA has been appointed directly from outside the U.S. Government since the pre-21st Century “Schmidt Era” at the BIA. (For “EOIR trivia buffs,” the last two outside appointments to the BIA in 2000 were the late Hon. Juan P. Osuna and the Hon. Cecelia M. Expenoza who was exiled along with me and others during the “Ashcroft Purge” of 2003.)
So, we’re dealing with a basically conservative, government-oriented judiciary of  “non-boat rockers” who mostly achieved and retained their present judicial positions by “knowing and doing what the boss wanted” and making sure that any “deviations” were within limits that would be tolerated.
Yes, it’s OK to grant some asylum cases, particularly from Africa or the Middle East, over DHS objections; but “watch out” if you start granting lots of asylum to folks from the Northern Triangle or Mexico for whom the big “NOT WELCOME SIGN” has been hung out by the last three Administrations, or if you accept any new “particular social groups” which Administrations tend to view with fearful eyes as potentially “opening the floodgates” of protection to those who sorely need and can easily access it (in other words, to those whom the Geneva Refugee Convention actually was intended to protect.)
So, this isn’t a judiciary that normally would be expected to “buck the system.” Indeed, although the world has probably never been worse for refugees since World War II, the Immigration Courts seem to have inexplicably but dutifully reduced asylum grants since the clearly xenophobic, anti-refugee, and anti-asylum Trump Administration assumed office and Gonzo began delivering his anti-asylum, anti-lawyer, anti-immigrant rants.
Therefore, the threat to the limited judicial independence that U.S. Immigration Judges possess under the regulations (which haven’t prevented occasional “reassignments” for ideological or political reasons in the past) has to be presumed both real and immediate to prompt this group to take the risky action of publicly seeking protection. After all, Gonzo could potentially “retaliate” by further limiting the judges’ authority, further jacking up the already astronomically high stress levels under which the judges operate, or “reassigning” “unreliable” judges to more mundane or unattractive positions within the DOJ (sometimes known as “hallwalker” positions).
It’s definitely a further sign of an unhealthy judicial system on the verge of collapse. Before that happens, and 650,000+ additional cases spew forth into other parts of our justice system, it would be wise of Congress to make at least some immediate reforms to preserve independence and due process within the U.S. immigration Courts.
I also agree with Jason that attorneys and respondents are not the major problem driving uncontrolled backlogs in the U.S. immigration Courts. No, it’s all about “Aimless Docket Reshuffling” (“ADR”) generated by EOIR itself at the behest of its political handlers at the DOJ.
But, I don’t agree with Jason’s statement that EOIR has merely “misdiagnosed” the problem. No, EOIR and DOJ know exactly what the problem is, because they created it (egged on, no doubt by DHS and sometimes the White House).
Gonzo and EOIR are intentionally misrepresenting and misusing data to hide the truth about how screwed up the system has become because of the DOJ’s toxic combination of administrative incompetence with improper political and enforcement motives. In other words, DOJ is attempting to cover up its own “fraud, waste, and abuse” of public funds.
Even worse, and more reprehensible, Gonzo is attempting disingenuously to shift the blame to respondents and their overworked attorneys who are more often than not the actual victims of the scam being pulled off by the DOJ as part of the Trump Administration’s xenophobic, White Nationalist campaign to reduce the precious rights of asylum seekers and others. We can’t let him get away with it!
JUST SAY NO TO GONZO!
PWS
12-21-17

“THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS” – My Address To The Women’s Bar Association of DC, Dec. 14, 2017

THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS

With WBA Program Co-Chairs Pauline M. Schwartz, Esq. & Leticia A. “Letty” Corona, Esq.:

With Judge (Ret.) Joan Churchill:

FRIENDS & COLLEAGUES FOR 4 1/2 DECADES —

CHURCHILL & SCHMIDT — Then & Now

L to R starting in back

Late William McQuillen, Esq., PWS, Late Hon. Lauri Steven Filppu,

Barry A. Schneiderman, Esq., Joanna London, Esq. (Retired from Legacy INS General Counsel), Judge (Ret.) Joan Churchill:

 

 

 

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

THE ATTACK ON DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS

Keynote Address by

Paul Wickham Schmidt

United States Immigration Judge (Retired)

 

WOMEN’S BAR ASSOCIATION OF THE DISTRICT OF COLUMBIA

 

Crowell & Moring

 

1001 Pennsylvania Avenue, NW

 

Washington, DC 20004

 

December 14, 2017

 

 

 

 I.  INTRODUCTION

 

Thank you so much for inviting me to speak at this wonderful event. I’m honored to be here. Thanks also to Crowell & Moring for providing this lovely facility.

 

When I got off the subway at Metro Center tonight, I came out on the corner of 12 & F Street, NW. I spent the first two years of my legal career right at that spot working as an Attorney Advisor for the Board of Immigration Appeals, the “BIA,” in the days before the creation of the Executive Office for Immigration Review (“EOIR”). The BIA was located on the top floor of the now long demolished “International Safeway Building,” which believe it or not, actually contained a functioning Safeway grocery store.

 

As the “new kids on the block,” the late Lauri Filppu and I got sent down to Safeway to buy beer and supplies for the office parties. A little like being the “Junior Justice” at the Supreme Court, I suppose – but, maybe, not so much. Interestingly, Lauri and I both went on to eventually serve as appellate judges – “Board Members” – at the BIA. He served with me when I was BIA Chair in the late 1990’s.

 

I don’t recognize much of the “Ol’ Hood.” Then, it was mostly wig shops, record stores, souvenir stands, and a few lunch counters that catered to the “work and tourist” lunch crowd. Not a place you wanted to be after dark.

 

The one remaining “landmark” is the Hotel Harrington. But the “Kitcheteria” and the aptly named “Pink Elephant Lounge” have been replaced by something called “Harry’s Family Bar & Grill” that still has kind of a “Kitcheteria/Pink Elephant” aura about it. At any rate, the ‘hood and the quarters at the BIA bore no resemblance to this splendid building and the Crowell & Moring “digs.”

 

The Women’s Bar Association of DC is a terrific organization,[1] and you are extremely fortunate to have such great lawyers, leaders, and amazing human beings as my friends Pauline Schwartz and Leticia “Letty” Corona involved.


They were part of the “life saving crew” at the Arlington Immigration Court during my tenure on the bench. They are also stalwarts of the “New Due Process Army” which I will discuss later. And, as I already mentioned, Pauline & Letty were the creators of the four hypotheticals and the “power points” that we used as a “lead in” tonight.

 

I also want to recognize my long-time friend and colleague retired U.S. Immigration Judge Joan Churchill whom I understand was your keynote speaker at this event last year. Joan and I actually met as BIA Attorney Advisors in 1973, and were part of the “lunch foursome.” So, we got to know the neighborhood’s culinary offerings very well. We also served together for a number of years on the bench after I was reassigned to the Arlington Immigration Court in 2003.

 

Courageous women are rightfully dominating our news. We should all recognize that Judge Churchill’s pioneering role as one of the first female U.S. Immigration Judges in the nation helped to pave the way for a more diverse judiciary and for all the women who serve as U.S. Immigration Judges today. And Judge Churchill definitely is a role model who, no mater how tough and challenging things got, absolutely could never be bullied or intimidated.

 

I was thinking of Judge Churchill as I walked over her tonight. After her initial appointment to the bench, she was the target of some petty but persistent attempts to drive her out by the “macho culture” that then prevailed at the “Legacy DHS” and was unhappy that she, rather than ”one of their own,” had been appointed to the judgeship.

 

We discussed what happened then and over the years. To the best of my knowledge, there was no overt sexual act involved. But, the pattern of harassment and attempts to create an inhospitable work environment were certainly directed at Judge Churchill’s gender as a woman. So, it fits today’s definition of “sexual harassment.”

 

In any event, in Judge Churchill’s case they “picked on the wrong person.” So, for those of you, particularly younger lawyers, and particularly women lawyers, who have never met her, tonight is you chance to meet a true “American legal and judicial hero” who paved the way for others to follow.

 

I’d also like to recognize another distinguished former colleague from the Arlington Immigration Court, Judge Lawrence O. Burman who is here tonight. As many of you know, through his tireless work with the Federal Bar Association, Judge Burman has been a leader in promoting better Immigration Court practice through continuing legal education.

 

And, in his capacity as an officer of the National Association of Immigration Judges, the “NAIJ, ”he has also been one of the leaders in fighting for the creation of an independent Article I U.S. Immigration Court. I trust that by the end of my speech tonight you will understand why that effort is so timely and critical to our nation’s justice system. For the record, both Judge Churchill and I are retired members of the NAIJ. Indeed, Judge Churchill is a past President of the NAIJ.

 

Now, as Judge Burman and Judge Churchill know, this is the point at which I used to deliver my comprehensive disclaimer giving everyone in Government “plausible deniability” for everything I might say, particularly anything that might come too close to the truth. I do not have to do that any more. But, I will give the Women’s Bar Association of DC the benefit by disclaiming that anything I might say tonight represents their views or any approximation thereof. No, folks, tonight everything I say is my view, and only my view: no bureaucratic “doublespeak,” no party line, no sugar coating! I’m going to tell you exactly what I really think!

 

II. THE DUE PROCESS CRISIS IN IMMIGRATION COURT

 

As many of you in this room probably recognize, there is no “overall immigration crisis” in America today. What we have is a series of potentially solvable problems involving immigration that have been allowed to grow and fester by politicians and political officials over many years.

 

And, unfortunately, the current Administration with its anti-immigrant attitudes and polarizing racial and ethnic rhetoric intends to make the problems worse rather than better. That starts with the absolute disaster in our beleaguered U.S. Immigration Courts.

 

There is a real crisis involving immigration: the attack on due process in our U.S. Immigration Courts that has brought them to the brink of collapse. I’m going to tell you seven things impeding the delivery of due process in Immigration Court that should be of grave concern to you and to all other Americans who care about our justice system and our value of fundamental fairness.

 

First, political officials in the last three Administrations have hijacked the noble mission of the U.S. Immigration Courts. That vision, which I helped develop in the late 1990s, is to “be the world’s best administrative tribunals guaranteeing fairness and due process for all.” The “fundamental flaw” here is that as mere “administrative courts” situated within the U.S. Department of Justice, the U.S. Immigration Courts are not truly independent in the same way as other major “specialized” court systems, such as the Tax Court and the Bankruptcy Courts.

 

In the best of times, placing the Immigration Courts within the Department of Justice is problematic. With the anti-immigrant, xenophobic, self-styled “immigration enforcer-in-chief “ Jeff Sessions as Attorney General, it is a disaster from a due process and fundamental fairness standpoint.

 

The Department of Justice’s ever-changing priorities, “Aimless Docket Reshuffling” (“ADR”), and morbid fascination with increased immigration detention as a means of deterrence have turned the Immigration Court system back into a tool of DHS enforcement. Indeed, Sessions recently announced a series of so-called “reforms” which, far from improving the Immigration Courts, mostly would further compromise fairness, professionalism, and due process.

 

He plans to impose case completion quotas – read “deportation quotas” — for judges. At the same time he mischaracterizes statistics in attempting disingenuously to “fob off “ primary blame for the current monumental backlog of 650,000 pending cases on overworked private attorneys, the “real heroes” of our system, and unrepresented migrants, the real victims of ADR, while ignoring and attempting to cover up the real cause of the problemAimless Docket Reshuffling (“ADR”) instituted by DOJ politicos attempting to use the Immigration Courts as an adjunct of DHS enforcement.

 

Sessions intentionally ignores his own data showing that that recent increases in requests for continuance are coming from DHS and EOIR itself, rather than from the private bar! Obviously, it is past time for a truly independent U.S. Immigration Court to be established outside the Executive Branch.

 

Second, there simply are not enough pro bono and low bono attorneys and authorized representatives available to assist all the individuals who need representation in Immigration Court. Removal proceedings conducted by U.S. Immigration Judges are considered “civil” in nature, although in many cases they have consequences far more serious than criminal prosecutions. Consequently, migrants appearing in Removal Proceedings are not entitled to appointed counsel, as they would be in criminal proceedings. Therefore, the role of private attorneys, and particularly those serving on a pro bono or “low bono” basis, as many of you in this room are doing or have done in the past, become absolutely critical to achieving due process.

 

This problem is particularly acute in so-called “detention courts.” We know that representation makes a huge difference. Represented individuals succeed at rates four to five times greater than unrepresented individuals.

 

Accordingly, an Attorney General truly interested in due process, fairness, and efficiency, would emphasize the need to insure adequate access to counsel. Instead, Sessions has gone out of his way to wrongly characterize attorneys as potential “fraudsters” who supposedly are impeding the progress of his “deportation railway” with dilatory requests for continuances and applications for asylum provided by U.S. and internal law. Session’s intentional distortion of what is really happening in Immigration Court should outrage every American who cares about the Constitutional right to due process and integrity and intellectual honesty from U.S. government officials!

 

There have been a number of studies documenting the substandard conditions in immigration detention, particularly those run by private contractors, which in some cases prove deadly or debilitating. Some of these studies have recommended that immigration detention be sharply reduced and that so-called “family detention” be discontinued immediately.

 

A rational response might have been to develop creative alternatives to detention, and to work closely with and support efforts to insure access to legal representation for all individuals in Removal Proceedings. Instead, the response of the current Administration has been to “double down” on detention, by promising to detain all undocumented arrivals and to create a new “American Gulag” of detention centers, most privately run, along our southern border, where access to attorneys and self-help resources intentionally is limited to non-existent.

 

The documentation of the need for attorneys to represent respondents in Removal Proceedings to achieve fundamentally fair results is extensive and widely available. Given that, I ask you what kind of Attorney General and what kind of Government would intentionally locate traumatized individuals, many women and children, who are seeking potentially life-saving relief under our laws, in obscure poorly run detention facilities where access to counsel is impeded? Is this something of which we can be proud as a nation or should accept as simply “business as usual” in the age of Trump and Sessions?

 

Third, the Immigration Courts have an overwhelming caseload. Largely as a result of “Aimless Docket Reshuffling” by Administrations of both parties, the courts’ backlog has now reached an astounding 650,000 cases, with no end in sight. Since 2009, the number of cases pending before the Immigration Courts has tripled, while court resources have languished.

 

The Administration’s detention priorities and essentially random DHS enforcement program are like running express trains at full throttle into an existing train wreck without any discernable plan for clearing the track!” You can read about it in my article in the May 2017 edition of The Federal Lawyer.

 

Fourth, the immigration system relies far too much on detention. The theory is that detention, particularly under poor conditions with no access to lawyers, family, or friends, will “grind down individuals” so that they abandon their claims and take final orders or depart voluntarily. As they return to their countries and relate their unhappy experiences with the U.S. justice system, that supposedly will “deter” other individuals from coming.

 

Although there has been a downturn in border apprehensions since this Administration took office, there is little empirical evidence that such deterrence strategies will be effective in stopping undocumented migration in the long run. In any event, use of detention, as a primary deterrent for non-criminals who are asserting their statutory right to a hearing and their constitutional right to due process is highly inappropriate. Immigration detention is also expensive, and questions have been raised about the procedures used for awarding some of the contracts.

 

Fifth, we need an appellate court, the Board of Immigration Appeals, that functions like a real court not a high-volume service center. Over the past decade and one-half, the Board has taken an overly restrictive view of asylum law that fails to fulfill the generous requirements of the Supreme Court’s landmark decision in Cardoza-Fonseca and the Board’s own precedent in Matter of Mogharrabi. The Board has also failed to take a strong stand for respondents’ due process rights in Immigration Court.

 

Largely as a result of the Board’s failure to assert positive leadership, there is a tremendous discrepancy in asylum grant rates – so-called refugee roulette.” Overall grant rates have inexplicably been falling. Some courts such as Atlanta, Charlotte, and some other major non-detained courts have ludicrously low asylum grant rates, thereby suggesting a system skewed, perhaps intentionally, against asylum seekers. Perhaps not coincidentally, the Board has become totally “government-dominated” with no member appointed from the private sector this century.

 

Moreover, Sessions has publicly delivered shockingly extreme anti-asylum statements directly to EOIR adjudicators. He intentionally and substantially mis-stated the full scope of asylum protection by suggesting that critical “particular social group” protection that is a key element of both U.S. and international protection laws is somehow “less worthy” than other grounds; suggested rampant asylum fraud without supporting evidence; criticized case law that has appropriately recognized rights to protection greater than Sessions and his restrictionist allies want; and suggested, again without evidence, that lawyers are the problem, rather than the solution.

 

Sessions’s “cure” would be further reductions in the rights of asylum seekers, and more use of “expedited removal” which assigns nearly absolute ability to block asylum seekers from receiving full hearings to totally unqualified and biased law enforcement personnel.

 

Since retiring, I have been a forthright critic of some of the Obama Administration’s misguided and overly restrictive immigration policies, particularly the unnecessary prioritization and detention of scared women and children from the Northern Triangle seeking asylum. However, Sessions has heaped unjustified criticism on the Obama Administration for the things they did absolutely correctly and in accordance with the law: correctly applying “credible fear standards in exactly the generous manner contemplated by law and for properly releasing good faith asylum seekers from detention, rather than making them part of Sessions’s un-American “New American Gulag.”

 

Folks, Senator Elizabeth Warren, Senator Corey Booker, and the Congressional Black Caucus tried to tell the nation and the world why Jeff Sessions was clearly unqualified to serve as Attorney General. They were ignored and in Senator Warren’s case rudely silenced by Majority Leader Mitch McConnell for speaking truth. Now those of us who believe in the Constitutional Due Process and fairness for all, the rule of law, and a proper and generous application of U.S. asylum and refugees laws are seeing the disturbing results.

 

That an individual with such high biased, legally inaccurate, factually unsupported, and inappropriately negative views of U.S asylum law and the plight of refugees and asylees would hold any position of responsibility in the Government of the U.S. is disturbing at best. That he would be in charge of a court system that is often the last and only resort for those seeking due process, fundamental fairness, and legal protection from persecution and torture under our domestic laws and international conventions is simply appalling.

 

 

Sixth, the DOJ selection process for Immigration Judges and BIA Members has become both incredibly ponderous and totally one-sided. According to a recent GAO study, it takes on the average nearly two years to fill an Immigration Judge position. No wonder there are scores of vacancies and an unmanageable backlog!

 

While Sessions claims that he has “streamlined” the process in some mysterious way, his goal of a 6-8 month hiring cycle is still beyond what should be necessary in a properly run and administered merit-based system.

 

And, the results to date have been less than impressive. Most of the recent hires appear to have been “in the pipeline” under the last Administration. As the system crumbles and the DOJ requests additional Immigration Judges, the reality is that 45 judicial positions, more than 10% of the total authorized, remain vacant.

 

And, it’s not that the results of this glacial process produce a representative immigration judiciary. During the Obama Administration, approximately 88% of the Immigration Judge appointments came directly from government backgrounds. In other words, private sector expertise has been almost totally excluded from the 21st Century immigration judiciary.

 

Sessions has actually done slightly better at hiring those with experience in the private sector. However, most attribute this to applicants whose selection was pending “background clearance” at the end of the last Administration, rather than to any conscious decision by Sessions to create a more diverse and representative Immigration Judiciary.

 

Seventh, and finally, the Immigration Courts need e-filing NOW! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. Also, because of the absence of e-filing, the public receives a level of service disturbingly below that of any other major court system. That gives the Immigration Courts an “amateur night” aura totally inconsistent with the dignity of the process, the critical importance of the mission, and the expertise, hard work, and dedication of the judges and court staff who make up our court.

 

Sessions has assured us that an “E-Filing Pilot Program” will be in place in the Immigration Courts at some point in mid-2018. But, folks, EOIR has been “studying” and “developing” e-filing since 2001 — a period of nearly 17 yearswithout achieving any meaningful end product! Indeed, most of us involved in that initial e-filing study are now retired, dead, or both. (Happily, I’m in “group one.”)

 

Moreover, those of us who have lived through past DOJ/EOIR “pilot programs,” “upgrades,” and “rollouts” know that they are often are plagued by slipping implementation dates, “Not Quite Ready For Prime Time”(“NQRFPT”) hardware and software, and general administrative chaos.

 

The U.S. Immigration Court, its employees, and its hundreds of thousands of frustrated “customers” deserve modern, professional court management which simply is not going to happen under the DOJ, particularly in the “Age of Trump & Sessions.”

 

III. ACTION PLAN

 

Keep these thoughts in mind. Not surprisingly, based on actions to date, I have no hope that Attorney General Sessions will support due process reforms or an independent U.S. Immigration Court, although it would be in his best interests as well as those of our country if he did.

 

Outrageously, Sessions actually proposes to move the court system in the opposite direction – elevating false efficiencies, case completions, and legislative and administrative gimmicks to truncate rights above fairness, quality, and guaranteeing due process for individuals. What kind of court system does that? Sounds like something out of a Third World dictatorship, not a 21st Century democracy!

 

However, eventually our opportunity will come. When it does, those of us who believe in the primary importance of constitutional due process must be ready with concrete reforms.

 

So, do we abandon all hope at present? No, of course not!   Because there are hundreds of newer lawyers out there who are former Arlington JLCs, interns, my former students, and those who have practiced before the Arlington Immigration Court.

 

They form what I call the “New Due Process Army!” And, while my time on the battlefield is winding down, they are just beginning the fight! They will keep at it for years, decades, or generations — whatever it takes to force the U.S. immigration judicial system to live up to its promise of “guaranteeing fairness and due process for all!”

 

What can you do to get involved now? The overriding due process need is for competent representation of individuals claiming asylum and/or facing removal from the United States. Currently, there are not nearly enough pro bono lawyers to insure that everyone in Immigration Court gets represented.

 

And the situation is getting worse. With the Administration’s expansion of so-called “expedited removal,” lawyers are needed at earlier points in the process to insure that those with defenses or plausible claims for relief even get into the Immigration Court process, rather than being summarily removed with little, if any, recourse.

 

Additionally, given the pressure that the Administration is likely to exert through the Department of Justice to “move” cases quickly through the Immigration Court system with little regard for due process and fundamental fairness, resort to the Article III Courts to require fair proceedings and an unbiased application of the laws becomes even more essential. Litigation in the U.S. District and Appellate Courts has turned out to be effective in forcing systemic change. However, virtually no unrepresented individual is going to be capable of getting to the Court of Appeals, let alone prevailing on a claim.

 

 

Several state and local government initiatives like those in New York, California, and Chicago have been very successful in expanding Immigration Court representation, particularly in detained cases, improving results, and resisting Administration enforcement overreach. I understand that a similar movement in Maryland might soon be underway. If it happens, all you Maryland residents in the audience should let your state legislators know that you stand behind due process, fairness, and justice for our immigrant communities.

 

I have been working with groups looking for ways to expand the “accredited representative” program, which allows properly trained and certified individuals who are not lawyers to handle cases before the DHS and the Immigration Courts while working for certain nonprofit community organizations, on either a staff or volunteer basis. The “accredited representative” program is also an outstanding opportunity for retired individuals, like professors, teachers, and others who are not lawyers but who can qualify to provide pro bono representation in Immigration Court to needy migrants thorough properly recognized religious and community organizations.

 

Even if you are a lawyer not practicing immigration law, there are many outstanding opportunities to contribute by taking pro bono cases. Indeed, in my experience in Arlington, “big law” firms were some of the major contributors to highly effective pro bono representation. It was also great “hands on” experience for those seeking to hone their litigation skills.

 

Those of you with language and teaching skills can help out in English Language Learning programs for migrants. I have observed first hand that the better that individuals understand the language and culture of the US, the more successful they are in navigating our Immigration Court system and both assisting, and when necessary, challenging their representatives to perform at the highest levels. In other words, they are in a better position to be “informed consumers” of legal services.

 

Another critical area for focus is funding of nonprofit community-based organizations, and religious groups that assist migrants for little or no charge. Never has the need for such services been greater.

 

Many of these organizations receive at least some government funding for outreach efforts. We have already seen how the President has directed the DHS to “defund” outreach efforts and use the money instead for a program to assist victims of crimes committed by undocumented individuals.

 

Undoubtedly, with the huge emphases on military expansion and immigration enforcement, to the exclusion of other important programs, virtually all forms of funding for outreach efforts to migrants are likely to disappear in the very near future. Those who care about helping others will have to make up the deficit. So, at giving time, remember your community nonprofit organizations that are assisting foreign nationals.

 

Finally, as an informed voter and participant in our political process, you can advance the cause of Immigration Court reform and due process. We have seen a graphic example this week of how decent citizens who have had enough of this Administration’s lawless behavior, anti-American attitudes, and trampling on our Constitution and our humane national values can rise up, be heard, and succeed in changing the future for the better, even against supposedly prohibitive odds. For the last 16 years politicians of both parties have largely stood by and watched the unfolding due process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.

 

The notion that Immigration Court reform must be part of so-called “comprehensive immigration reform” is simply wrong. The Immigration Courts can and must be fixed sooner rather than later, regardless of what happens with overall immigration reform. It’s time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.

 

Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max,” “haste makes waste” policies being pursued by this Administration will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.

 

Trump, Sessions, and their arrogant cronies have a dark xenophobic, homophobic, Islamophobic plan for America that completely ignores or downgrades the essential contributions of immigrants of all types, all nationalities, and all economic and educational levels. It essentially “ disses” our true heritage and greatness as a “country of immigrants.”

 

This darkness does not represent my view of America as a humane, generous, and tolerant nation of immigrants, both “documented” and “undocumented,” nor do they reflect my understanding of the proper meaning of the Due Process Clause of the U.S. Constitution, which applies equally to all individuals in the U.S., not just citizens. I sincerely hope that they do not reflect your views either! If not, please join me in standing up and being heard in opposition to this Administration’s aggressively xenophobic, homophobic, Islamophobic programs and their intentional downgrading of due process and fairness in our U.S. Immigration Courts.

 IV. CONCLUSION

 

In conclusion, I have shared with you the U.S. Immigration Court’s noble due process vision and the ways it currently is being undermined and disregarded. I have also shared with you some of my ideas for effective court reforms that would achieve the due process vision and how you can become involved in improving the process.

 

Now is the time to take a stand for fundamental fairness! Join the New Due Process Army! Due process forever!

 

Thanks again for inviting me and for listening.

 

(Revised, 12-19-17)

 

[1] I’ve since joined the WBA.

 

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

PWS

12-19-17

AMERICA THE UGLY: YOU ARE FUNDING THE NEW AMERICAN GESTAPO AT DHS: ABUSING CHILDREN, SOWING FEAR, DENYING WOMEN’S RIGHTS, DESTROYING THE FUTURE OF OUR COUNTRY! — Cruelty For Cruelty’s Sake – How Will YOU Explain To Your Children & Grandchildren How YOU Stood By and Watched Trump, Sessions, & Their White Nationalist Lieutenants Create the “Fourth Reich” in America? – “Will They Take Me Too”?” – What About YOU? — Who Will Stand Up for YOUR Rights When the White Nationalist State Knocks On YOUR Door?

https://www.nytimes.com/2017/12/14/magazine/will-they-take-me-too.html

Brooke Jarvis reports for the NY Times:

“More than a thousand children are counting on Nora Sándigo to become their guardian if their undocumented parents are deported. How many of those promises will she now have to keep?

***********

Because she didn’t know what to tell her children, she tried not to tell them anything. When they asked where their father was, she gave flimsy excuses: Yes, he came home last night, but he left while you were still asleep. He’s working late, he’s working early, he just stepped out, he’ll be back soon. “You just missed him,” she found herself repeating.

The strategy worked, for a few days at least, with the youngest three. They were all under 5 and were used to the world going about its strange business without them. But then there was Kelly. She was 8 and sharp-eyed, a good student who preferred English to Spanish and wanted to someday be a doctor, or maybe a gymnast, and who had watched a presidential candidate on television say he wanted to send people back to Mexico, where both her parents grew up.

Kelly came home from school one day in October last year and demanded to know where her father was. Because his construction job started so early in the morning, Javier was usually the first home. That was part of how he and Kelly’s mother, T., fell in love. They boarded in the same house more than a decade ago, when she was 19 and freshly arrived in South Florida, having followed her sister from their small village in southern Mexico. T., who is being identified by her first initial to shield her identity, quit school after sixth grade. She helped her parents plant corn and beans but dreamed of something better for herself and her infant son; she decided to leave him in her mother’s care and support him from afar. Javier was from the same region, and because he finished work early, he cooked for her while she was still out in the Florida sun. The food was delicious and tasted like home. Soon they were a couple, and then Kelly was born, and her father, who fainted with anxiety in the birthing room, adored her, and she adored him back.

“He’s late from work,” T. told her daughter.

But Kelly wasn’t having it. Before heading to school that morning, she saw uniformed men come to the door and ask her mother for her father’s passport; she heard her mother on the phone, asking what had happened, what to do. “Don’t lie to me,” Kelly said, and started to cry. “Where did they take him? What did he do?”

By now T. knew. One of her first phone calls was to an immigrant advocate and former refugee named Nora Sándigo, who, in this poor area south of Miami, was the most powerful person in many people’s worlds: She knew lawyers, county commissioners, even members of Congress. After T. called her, Sándigo quickly discovered that Javier had been detained by the Department of Homeland Security. T. didn’t tell Kelly the details she had learned from Sándigo, or from Javier, when he was finally able to make a brief call. That they arrested him just a few yards away from their home, as he stood waiting for his ride to work. That now he was on the edge of the Everglades, in a gray-and-tan detention center adjacent to a state prison, a half-hour’s drive away, a distance that, for T., had suddenly become unbridgeable. “He was arrested,” she told Kelly, simply. “We have no papers to be here, like you do.”

“Will they take me, too?” Kelly asked. She didn’t know what papers her mother was talking about, what this thing was that she had and her parents didn’t.

T. didn’t tell her daughter the other reason she called Sándigo. Across South Florida, T. knew, undocumented parents of citizen children were preparing for possible deportation by signing power-of-attorney forms that allowed Sándigo to step in should their own parenthood be interrupted by a surprise visit from Immigration and Customs Enforcement, or ICE. If they were taken away, at least Norita, as they called her, could provide stability while the family sorted out what to do; she could also sign forms on their children’s behalf at school, or at the hospital, or in federal court.

Sándigo’s responsibilities extended to many hundreds of children, and were growing all the time. Parents, some of whom had never met her in person, were desperate for any solution. Her qualifications were simple. She was compassionate. She was willing. And, like their children, she was a United States citizen.

For years, T. never felt the need for such an extreme contingency plan. Now she was thinking of adding her own children to Sándigo’s list. “Imagine if they detained me too,” she said after Javier was gone. She couldn’t envision taking her American children with her to Mexico, where she “wouldn’t be able to give them education, shoes, clothes,” and where they would be separated from their friends and lives and ambitions, from the only home they had ever known. But what would happen if they stayed behind, with no parents left to care for them?

There’s a common misconception that having a citizen child — a so-called anchor baby — allows undocumented parents to gain legal status in the United States. In fact, parents of citizen children are deported annually by the tens of thousands, according to ICE’s own reports to Congress. Randy Capps, a demographer with the Migration Policy Institute, estimates that as many as a quarter of the people deported from the United States interior (who are counted separately from those deported at a border) are the parents of American children. Though immigration law prioritizes family connections, including legal status for the family members of Americans who petition on their behalf, children are the exception. They cannot, by law, petition for anyone until they turn 21 — by which time, of course, they won’t need their parents nearly as much.

Continue reading the main story

Photo

Gifts for children in Sándigo’s home. CreditChristopher Morris/VII, for The New York Times

Families like Kelly’s are known as “mixed status” — a reminder that the way we talk about immigration, with clear lines of legality separating groups of people, is often a fantasy. The reality is a world of families with separate legal statuses but intertwined fates. More than four million American children are estimated to have a parent in the country illegally. If deported, those parents face a difficult choice: Take their children to a country they do not know, whose language they may not speak and one that lacks the security and opportunities they have in the United States; or leave them behind, dividing the family. Courts have regularly responded to the argument that a parent’s deportation will deny a child, as one lawyer put it, “the right which she has as an American citizen to continue to reside in the United States,” with the counterargument that such children are not, in fact, deprived, because they retain the right to stay in their country and the right to live with their parents — just not both at the same time. “That’s what I call a choiceless choice,” says David B. Thronson, a professor at the Michigan State University College of Law, who helped found the Immigration Law Clinic.

But it’s a choice that’s familiar to millions of families, including Sándigo’s. “I lived that,” she said one day when I met her at her office in the suburbs of Miami, a one-story stucco house that serves as the headquarters of the Nora Sándigo Children Foundation. When she was 16, her parents sent her away from Nicaragua to escape the violence of its civil war; her family, she says, was targeted for opposing the Sandinistas. “I feel like I am one of those kids,” she continued, “because I came with the same problem. I had my father and mother, but I was an orphan without them. Separate from their parents, they become orphans, like me.” She remembers sobbing as she watched the country of her birth recede from the plane window.

When she left Nicaragua, Sándigo went to Venezuela, then France, “trying to get something legal,” and in 1988 finally ended up in the United States, where the organization that helped her settle here offered her a job working with other refugees from Central America and advocating for their asylum. The Nicaraguan Adjustment and Central American Relief Act was passed in 1997. In Miami, she helped other immigrants with paperwork and resettlement matters, like looking for apartments or jobs. She also started a business of small nursing homes, which, along with a plant nursery, helps cover her foundation’s bills. She never went back to Nicaragua, not even when her father was dying. He told her to stay in the United States and be safe. It was her country now, he said.

As Sándigo’s reputation grew, it became common for strangers in Miami’s immigrant communities to seek her out, asking for help; the requests opened Sándigo’s eyes to the depth of people’s need. She remembers bringing six towels to a woman with five children, who was shocked at the abundance: “So many!”

One call, in 2006, was for a new kind of assistance: A Peruvian woman, whom Sándigo had never met, was being held in a detention center, and she wanted to give Sándigo power of attorney to make decisions about her children’s care. (Unlike full legal guardianship, which is conferred by a court, power-of-attorney forms don’t involve a transfer of parental rights.) Others in the center had warned her that if she didn’t do something, she might lose her children to the child welfare system. Sándigo doesn’t know why the woman thought of her, but she felt honored, and obligated, by her trust: “When she called she had the papers signed and notarized already in my name.”

The Peruvian woman’s children never called on Sándigo, but word of what she had done got out. In 2009, a brother and sister, ages 9 and 11, showed up at Sándigo’s door with their uncle; their mother, they said, was in detention, and they weren’t going to eat until she was released. Sándigo remembers the oldest, Cecia, now a student at Georgetown University, saying, “We’ll stay with you,” to which she replied, “But this is an office, baby.” Still, she made a place for them. Jerryann, one of Sándigo’s two biological daughters, recalled: “You were like, ‘Oh, they’re going to stay the night.’ And then one night became forever.” The children moved in — they ended up staying for six years — the case attracted a lot of publicity and soon there was a steady stream of requests. “That gave the perception to the people, probably, that I was accepting the power of attorney from everyone in the same situation,” Sándigo said.

Many of the people who contacted Sándigo wanted only a temporary backup, a documented adult whom their kids could call in the moment of crisis to avoid ending up in the child-welfare system. According to an ICE spokeswoman, “ICE is committed to ensuring that the agency’s immigration-enforcement activities, including detention and removal, do not unnecessarily disrupt the parental rights of alien parents and legal guardians of minor children.” But navigating the immigration and child-welfare systems simultaneously can be difficult. Emily Butera, a senior policy adviser at the Women’s Refugee Commission, told me that many parents have come to believe that they will lose their rights automatically: “We’ve started explicitly saying to people, ‘Your children are not the property of the U.S. government.’ ”

Other parents planned for their children to stay with their undocumented friends or relatives, but wanted Sándigo to sign papers or fill official roles that they couldn’t. Still others hoped that their children would live with her, maybe for the remainder of their childhoods — something Sándigo wasn’t promising and worried that people assumed she was. But still, she never said no. When people came to her looking for help, Sándigo found it impossible to deny them. The numbers grew into the dozens, and then to the hundreds. “We never planned this,” Sándigo said one day. “It was planned by nobody. It just came.”

. . . .

Two days later, nine adults and 36 children gathered at Sándigo’s house to pack into three rented vans for the 18-hour drive to Washington. T. tried to find space under a seat for a stroller — she was bringing all four daughters — while Sándigo stood in front of local news cameras, speaking in Spanish. “How can they be American citizens if in their own country they’re treated so harshly?” she asked. Kelly wandered into the frame, and Sándigo pointed to her: “Her father was deported,” she said. “It’s very hard.” Kelly noticed the cameras turning to her and darted away. “We hope they’ll listen to these American children,” T.’s sister told Telemundo.

Finally, space was found for all the diaper bags and suitcases and gallons of frozen milk. The kids lined up for a group photo around an American flag. The plan was to drive through the night, a challenge with so few licensable drivers among the adults. The vans pulled out past a small lineup of news cameras.

A few minutes later, they were back. Sándigo had gotten a call from the only English-language station to respond to her news release: The cameraman was running late. Sándigo agreed to redo the exit scene. “For us, the English news is the most important,” she said. Its viewers were the ones whom she most wanted to hear from the children, their fellow citizens.

Kelly and the others dutifully spilled out of the van into the sunshine. Valerie, in her native, teenage English, told the new camera the same things she’d told the others in Spanish: about missing her parents, about how hard it was. She was proud that she’d finally learned to talk about them without crying.

Then the children all climbed back inside for another try at reaching their nation’s capital.

The cameraman stood in the empty street for a long time, watching them disappear.”

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Read the complete, much longer story,  at the link.

What are we going to tell our fellow citizens when they grow up and become essential parts of our society? What’s going to happen when they come into power in various forms. How will the descendants of Jeff “Gonzo Apocalypto” Sessions and his “fellow travelers” expect fairness, forgiveness, and mercy from others when their ancestors had and gave none? What are we doing to resist the current regime and insure their eventual removal from office?

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Meanwhile, over at Newsweek reports on how, led by Chief Scofflaw Jeff “Gonzo Apocalyoto” Sessions, the Trump Administration continues its assault on our Constitution, women, Latinos, immigrants, and the REAL rule of law by attempting to force immigrant teenagers to carry pregnancies to term against their will:

“The Trump administration is attempting to block two young undocumented immigrant women in federal custody from obtaining an abortion, prompting the American Civil Liberties Union to head back to court today.

The two women, known to the court as Jane Roe and Jane Poe, requested to have an abortion. The Office of Refugee Resettlement refused their request.

The organization says this refusal, which has become common under Trump, shouldn’t be acceptable. The administration has been requiring these young women to go to religiously affiliated “Crisis Pregnancy Centers” that require patients to “have a medically unnecessary sonogram” and urges them to carry their pregnancy.

This case comes after the recent “Jane Doe” case in which the civil rights group stepped in and helped another immigrant receive the care she requested.

“We’ve already stopped the Trump administration from blocking one young woman’s abortion,” Brigitte Amiri, senior staff attorney with the ACLU Reproductive Freedom Project, said in a press release. “But the Trump administration is relentless in its cruelty, blocking abortion access for the most marginalized people in our country.”

The Jane Doe case was the first major abortion battle under Trump, in which a 17-year-old came to the U.S. from Central America in September. She was detained and learned that she was pregnant. When she was at the government-funded shelter, she attempted to get an abortion but the government didn’t allow it. That was the first undocumented immigrant abortion case the ACLU took to the court to fight the Trump administration.

According to a previous report by Newsweek, The ACLU told the court that the Trump administration unlawfully barred Jane Doe from having an abortion for a month. The court agreed with the ACLU and Jane obtained an abortion the next day, but the fight is still on between the group’s lawyers and the Trump administration.

After winning in court and receiving her abortion, Jane Doe said in a statement that she came to the U.S. for a better life.

“No one should be shamed for making the right decision for themselves,” she said in a statement released by the ACLU on October 25. “I would not tell any other girl in my situation what they should do. That decision is hers and hers alone.”

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So, how are Gonzo and other Trump Administration scofflaws not in jail for contempt of court?

What’s the REAL difference between “America First” and “Deutschland Uber Alles?”

How long will we suffer through this national travesty of having a racist, anti-Constitutionalist, White Nationalist, scofflaw in charge of our Department of “Justice” and perhaps ever more appallingly our U.S. Immigraton “Courts?”

Easy to understand why there are so many “Sanctuary Jurisdictions” in the U.S. Hard to understand why all jurisdictions aren’t “Sanctuaries?” But, history will show who resisted and who went along with the “Fourth Reich!”

PWS

12/15/17

 

 

TWO NEW FROM TAL@CNN: 1) Will “Radical Moderation” Be The Next Great Political Movement? – 2) How Will Dems Negotiate The DACA Endgame?

Here’s what Tal has to say:

1) Will “Radical Moderation” Be The Next Great Political Movement?

http://www.cnn.com/2017/12/14/politics/congress-moderate-republicans-revenge/index.html

Can moderates get their revenge on DACA?

By: Tal Kopan, CNN

As year-end funding decisions loom, a familiar pattern is repeating, with House conservative Republicans playing hardball to pull their colleagues to the right.

And moderates are increasingly tiring of it — especially after Tuesday’s repudiation of a candidate seen as emblematic of the GOP’s right flank in the Alabama special election.

Government funding and efforts to abolish Deferred Action for Childhood Arrivals, a popular program for young undocumented immigrants, have some moderates increasingly wondering: Why can’t we play hardball, too?

Moderate Republicans and House members in districts that are either generally competitive or which Hillary Clinton carried in the 2016 presidential election are starting to grow frustrated with the effectiveness of groups like the House Freedom Caucus in influencing legislation, often by withholding their votes as a bloc until demands are met.

“Yes,” Florida Republican Rep. Carlos Curbelo said with exasperation when CNN asked Wednesday if the time had come for centrists to borrow tactics from the far right.

“We cannot be spectators here,” Curbelo said. “Other groups have used their leverage to influence the process, and we must do so as well, especially when there are 800,000 lives which could be radically changed for the worse if we don’t take care of (DACA).”

“I think last night’s election’s going to cause a lot of people to re-think where we are and what we’re doing,” said New York Republican Rep. Pete King of Democrat Doug Jones’s victory in Alabama.

While the current focus is on passing tax reform, one Republican staffer said patience could be limited once it’s dispensed with, as vulnerable moderates are frustrated with being forced to take tough votes seen in many cases as messaging exercises to appease the conservative base.

“It’s the moderates who are going to have to run in tough elections on this sh**,” the staffer said.

But there remains skepticism that, despite the frustration, moderates can hold together as a group the way conservatives have been able to do, or are willing to stomach the tough tactics the right flank employs.

The conservative House Freedom Caucus, for example, almost tanked a procedural measure on tax reform in a public show of force on the House floor earlier this month to send a message to Speaker Paul Ryan about year-end funding.

And according to a Republican source, rumors have been building around the Capitol that the farther right lawmakers are prepared to challenge Ryan’s speakership immediately if he calls a stand-alone fix for DACA to the floor.

Nearly three dozen moderates, on the other hand, sent a carefully worded letter to Ryan urging him to move on a fix for DACA, which protects young undocumented immigrants brought to the US as children, by the end of the year, without making any concrete threats to withhold any votes on government funding.

Curbelo has committed to oppose government funding without clear progress toward a DACA fix, and is urging fellow Republicans to do the same.

Pennsylvania Rep. Charlie Dent, a moderate Republican who has decided to not seek reelection, said he agreed with Curbelo that a DACA fix should go on an upcoming must-pass bill, though it could potentially be in January.

“The power of 25 here can force a lot of things,” Dent said, referring to the GOP margin of the majority in the House. “And Freedom Caucus has been effective at it, they can put their votes together, and we need to do that from time to time, (though) we need to pick our fights carefully.”

But one conservative Republican source noted that moderates have always had difficulty being as united as more conservative groups. That sentiment was echoed by King, who referred to the group that former House Speaker John Boehner once called “legislative terrorist(s)” as “crazies” even as he distanced himself from moderates.

“I consider myself actually a blue-collar conservative, I’m not really in the moderate wing, I’m just against some of the crazies,” King told CNN, speaking of his unsuccessful fight against the GOP tax bill he sees as devastating for his state. “It’s hard to unify everybody.”

Some moderates gave credit to the Freedom Caucus, saying their effectiveness should only be a source of inspiration.

“I don’t fault anybody for doing what they believe is best in their way of representing their district,” said Washington Rep. Dan Newhouse, who helped organize the DACA letter. “I respect that. …(But) it’s also incumbent upon me to do the same thing.”

2) How Will Dems Negotiate The DACA Endgame?

http://www.cnn.com/2017/12/14/politics/daca-likely-slip-january/index.html

Democrats wrestle with likelihood DACA slips to January

Washington (CNN)Democrats are increasingly grappling with the likelihood that Congress could push a decision on a popular immigration program into January, even as they’ve spent weeks saying it should be dealt with by the end of the year.

“To some extent, yes,” Congressional Hispanic Caucus member and Arizona Democrat Rep. Raúl Grijalva said Thursday on Capitol Hill when asked if there’s a growing realization that the issue will likely slip to January.
“Some of us are holdouts, but if you talk about reality, yeah,” he continued. “I mean, if leadership is not pushing it, they’re not holding the line with members and we have a CR that includes (children’s health funding), which is really, really important, funding for community health centers, then not seeing it before the end of the year becomes more and more precarious.”
Democrats and even some Republicans have not given up on trying to get done a deal to maintain a version of the Deferred Action for Childhood Arrivals program, which protected young undocumented immigrants brought to the US as children from deportation but which President Donald Trump has opted to terminate.
Advocates note the issue is more urgent than portrayed by the administration. More than 20,000 DACA recipients either did not renew or were rejected in the window the government offered, meaning more than 100 lose their status every day before the March 6 deadline the administration intended to set.
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But even as negotiations continue and intensify on both sides of the Capitol to reach a bipartisan compromise on the issue, the likelihood of being able to pass something by the end of the year is rapidly slipping away.
Illinois Sen. Dick Durbin, the No. 2 Democrat, hosted a meeting of the Senate negotiators on Thursday afternoon, including Republicans Lindsey Graham, James Lankford, Cory Gardner, Jeff Flake and staff from Sen. Thom Tillis. But all exiting the meeting said while negotiations progressed, no break-throughs have been reached yet. And while some wouldn’t rule it out as a possibility, none expressed much optimism it could be done by the end of the year.
“It’s starting to take form, but we’re still negotiating,” Durbin said.
Tillis, R-North Carolina, said earlier Thursday that negotiators are working on a consensus on how to handle the DACA component of the deal, reconciling different bill approaches that are out there.
“What we’re trying to do is figure out where we have common ground there,” Tillis said. “But we’ll be reaching a point pretty soon to where we have to have a discussion about chain migration, which is very important, the President’s told us, and border security and other things. I would say when we talk about ‘we’re close to an agreement,’ we’re only talking about one half of the broader agreement, so maybe we’re a third of the way there.”
“I think people are having good faith discussions,” he continued. “I can’t imagine it being done by year end.”

Strategic maneuvering

Democrats know that their greatest leverage for many of their priorities is on government funding, which expires a week from Friday. Republicans will likely need Democratic votes to pass a full year of funding, in the Senate and likely in the House where budget hawks traditionally reject domestic spending levels.
But they also have a laundry list of priorities for negotiation, including an overall deal on domestic spending, community health centers, children’s health insurance, pensions and immigration. And five legislative days before funding runs out.
The current plan, according to multiple lawmakers and aides, is for the House to pass a bill that would fund defense for a year, reauthorize children’s health insurance, and punt the rest into January. That bill is dead on arrival in the Senate, where 44 Democrats have gone on record opposing it. The belief is that the Senate will send something back to the House, likely with Obamacare payments or possibly just a short-term funding extension into January. All the while, parties negotiating a DACA deal in both chambers remain optimistic about the progress of talks.
Such a plan could squeeze Democrats, especially in the Senate, to weigh rejecting an opportunity to keep negotiating and risk the government shutting down, or to hold out for more offers from Republicans.
It’s possible that a short-term extension could pass the House without Democratic votes, taking pressure of House Minority Leader Nancy Pelosi, who with her caucus has been more vocal about rejecting anything that doesn’t include DACA by the end of the year. House Freedom Caucus Chairman Mark Meadows said many of his members, who are the more troublesome Republicans for the party on funding, could support a punt.
“If it’s just looking at a (continuing resolution) that gets us to January 19 where we can negotiate on a bigger omnibus, I think most of my members will support that,” Meadows, R-North Carolina, told reporters Thursday. “There are some who won’t, but most would be supportive of that.”
In the Senate, Democratic aides believe that January could be an option. They feel there would be no need to force a bad deal now, if a good deal is still attainable in a few weeks’ time. Senators have also been more cautious than their House colleagues.
“I’m hopeful that it will happen. And we’re not there yet on what will happen if it doesn’t happen,” Hawaii Sen. Mazie Hirono said at a press conference Thursday about pushing for all of Democrats’ priorities by the end of the year, asked whether members would reject a deal to keep making progress on some issues.

Warnings to Democratic leadership

Still, Democrats are warning their leadership that they can’t appear to surrender.
“I think there is a Plan A, a Plan B, a Plan C, a Plan D and a Plan E in the House, I can see that there are more heightened negotiations in the Senate, and I’m dedicated to working 24/7 and I have to say my caucus has been doing that,” Congressional Hispanic Caucus Chairwoman Michelle Lujan Grisham said Thursday. “We want something to vote on next week, and we are making that clear to leadership. … So I think we have to stay the course and any conversation that we can wait even 15 days is cruel, unjust, wrong and there’s real harm.”
“I’m not ready to wave the white flag and say let’s see what happens,” Grijalva echoed. “I think the pressure has to be constant on this thing or it will fail.”
The deputy chair of the Democratic Party, Minneosta Rep. Keith Ellison, said Democratic leadership should know that the party base will not accept less than a full fight.
“My advice to anybody in leadership in the House of Representatives is we better do everything imaginable to deliver on DACA or we better we be visibly shown to have done every single thing that could be done,” Ellison said. “Our grassroots base is expecting us to deliver on DACA, and that’s it. … I feel so strongly about this. We cannot fail on this.”

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

Tal is amazing! As you probably can tell, I’m a big fan of her reporting: Timely, informative, balanced, easy to read. I’m glad she is on the CNN “immigration beat” — particularly for the “Dreamers” story which is so critical to the fate of our nation (not to mention the Dreamers).

The “Freedom Caucus” is in fact the “Bakuninist Wing” of the GOP: Out to destroy American Government and perhaps take the world with it. They are an existential threat to every American, nearly on the same level as the Trump Administration itself.

Somewhere, Mikhail Alexandrovich Bakunin –– the “Grandaddy of all Anarchists — must be smiling at how these “valueless bad dudes” can actually “con” constituents into voting for their own (and everyone else’s destruction). Of course, on the way to destruction, they don’t mind freeloading off the public purse. They just mind it when others get their fair share of the pie.

The Dems need to peel off enough GOP moderate support to enact a decent Dream Act. They definitely can’t go with the White Nationalist inspired — essentially racist (let’s be upfront about it) — end of so-called “chain migration.”

Chain migration is actually the White Nationalists’ misnomer for “Beneficial Family Migration” that has helped make America great and is essential to our future success. Yeah, they aren’t all White Christians who arrive with PhDs speaking English (although some family members undoubtedly fit this mold). And, that’s a good thing for both us and them that “they aren’t, and they don’t.”

While I can see a case for some additional immigration enforcement resources, increases  should be limited to technology, management improvements, and  increased legal resources for the ICE Offices of Chief Counsel.

Under NO circumstances should more immigration agents be authorized unless and until DHS improves their current hiring and training practices; abandons “Gonzo enforcement” for a rationally tailored enforcement program along the lines of other law enforcement agencies; and closes down the majority of their unnecessary, wasteful, and counterproductive “American Gulag,” starting with substandard and corrupt private immigration detention facilities.

With the border largely under control, interior enforcement without any discernible plan, rational objectives, or meaningful results, and the U.S. Immigration Courts in complete disarray under Sessions, there is no need for yet more immigration agents at present.

What on earth would they do? “Bust” more janitors, maids, landscapers, mothers, and students who are helping America? Then what? Throw them into the collapsing Immigration Courts which already have enough work for the balance of this Administration?

It’s much more likely that White Nationalists Trump, Sessions, and their cronies would build up an internal security police, to be used against America, than that additional agents would be put to any reasonable, permissible, and constructive use. It’s a prescription for disaster. And, ironically, one that should worry the GOP “Bakuninists.”  Hard to see how expanding Government domestic police resources without rational assignments or goals should be a priority for folks who want to “shrink government, then drown it in a teacup.”

And anyone who says that the so-called “Trump Executive Orders” (an exercise in “Gonzo racist irrationalism” if I’ve ever seen one) is some sort of “reasonable blueprint” has been smoking some stuff stronger than can legally be bought in Colorado. Yeah, Trump can issue any Executive Order he wants to. But, he can’t fund most of his unnecessary initiatives without Congressional permission. This is Congress’s chance to force some rationality back into the U.S. Immigration enforcement system, which has taken a decidedly irrational, racist, and xenophobic turn under Trump and Sessions.

PWS

12-14-17

WASHINGTON POST: “DEATH PENALTY IN TRAFFIC COURT” — BIG STAKES, LITTLE COURTS, FLAWED PROCEDURES, IMPROPER POLITICAL INFLUENCE, SOME JUDGES WHO FAIL TO PROTECT INDIVIDUAL RIGHTS LEAD TO LIFE-THREATENING ERRORS ON A DAILY BASIS IN OVERWHELMED U.S. IMMIGRATION COURTS. — What If YOU or YOUR Loved Were On Trial In This Godforsaken Corner Of Our Justice System Controlled By Jeff “Gonzo Aocalypto” Sessions!

https://www.washingtonpost.com/opinions/a-mexican-journalists-life-hangs-in-the-balance/2017/12/11/9783ab1a-deac-11e7-8679-a9728984779c_story.html

The WashPost Editorial Board writes:

“As he awaits his fate in a remote Texas jail, Mr. Gutierrez, 54, remains convinced of the peril he faces if deported to his native country. “My life depends on this [appeal],” he said by telephone in a news conference organized Monday by the National Press Club. “I’m terrified to set foot in Mexico.”

The judge who denied asylum in the case, Robert S. Hough, pointed to an absence of documentary and testimonial corroboration of Mr. Gutierrez’s claim. The woman who relayed word of the alleged death threat did not come forward; neither did Mr. Gutierrez’s former boss at the newspaper for which he worked in Chihuahua. Much of Mr. Gutierrez’s case comes down to his word.

Nonetheless, the judge’s cut-and-dried application of the law fails to take into account conditions in Mexico generally and the peril faced there by journalists in particular. It’s not surprising that Mr. Gutierrez cannot recover copies of his articles, written more than a decade ago for a regional newspaper. Nor is it unusual that witnesses are reluctant to come forward, given the fear with which many Mexicans regard the security forces.

As a U.N. report published this month concluded, citing the deaths, disappearances and attacks on dozens of journalists tallied by Mexico’s Human Rights Commission, “The data . . . presents a picture for the situation of journalists in Mexico that cannot be described as other than catastrophic.” Against that background, it seems cavalier to dismiss the threat Mr. Gutierrez faces should he be deported to Mexico. He should be granted asylum.”

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Read the complete Editorial at the link.

Unfortunately, a “cut and dried application of the law” without proper regard to the facts or reality is a disturbingly accurate snapshot of what all too often happens daily in our Immigration Courts, a “wholly owned subsidiary” of the US Department of Justice and part of the “Trump Conglomerate” (formerly known as the US Government).

Our failing US Immigration Court system and its aggravation by AG “Gonzo Apocalypto’s” oft-expressed hostility to immigrants, asylum, the rule of law (except his 1950s “Jim Crow” views on the law and how it should be a tool for injustice and advancing White Nationalism), lawyers, Latinos, Mexicans, and the press has become an almost daily topic for major editorial boards. At least someone (other than me) is watching and documenting as this mockery of American justice unfolds before us.

In particular, too many U.S. Immigration Judges are tone-deaf to Mexican asylum claims, not wanting to be accused of “opening the floodgates” ( a concept that is nowhere to be found in the actual law) and knowing that “Gonzo” wants lots of  “quick removals” rather than asylum grants.  Additionally, the only administrative check on the Immigration Judges’ authority is a weak Appeals Board that never “calls out” overly restrictive Immigration Judges by name and seldom publishes precedents granting asylum. Truly, a prescription for a “Due Process Disaster!”

Judge Hough seems to have forgotten that under the law:

  • ”Corroborating evidence” can only be required if it is “reasonably available;”
  • Testimony may be corroborated by country condition information describing the same abuses that the applicant claims;
  • The standard for granting asylum is a  generous “well-founded fear” or “reasonable likelihood” of future harm which can be “significantly less than probable — as little as a 10% chance can suffice;
  • Asylum applicants are supposed to be given the “benefit of the doubt” in recognition of the evidentiary challenges of providing proof of persecution and the difficulties of relating traumatic events in the past.

It remain to be seen whether the Board of Immigration Appeals, EOIR’s “Appellate Court,” will correct Judge Hough’s life-threatening errors and, further, issue a strong precedent on asylum for foreign journalists (traditionally one of the most vulnerable and persecuted groups) to prevent further miscarriages of Justice such as this. Such a precedent would also discourage the DHS from continuing to abuse our system by pushing for removal (and needless detention) in cases such as this where a grant of asylum at the DHS  Asylum Office or at the hearing following the testimony would be the correct result.

Or, will the next major editorial describe and decry Mr. Gutierrez’s death in Mexico!

In a well-functioning justice system, this case should have been a “Short-docket, No-brainer Grant.” But, Gonzo Apocalypto seeks to use the US Immigration Courts as an extension of DHS enforcement rather than, as they were intended, as Courts guaranteeing fairness, Due Process, and equal justice for all! We need change. Lots of it!

[NOTE: For those interested, Judge Hough apparently has not decided enough asylum cases on the merits in El Paso to be listed on the statistical profile of asylum outcomes maintained by TRAC Immigration.]

PWS

12-12-17