MICHELLE BRANE @ WOMEN’S REFUGEE COMMISSION — “Why I March!”

“Dear Paul,

Today, my daughter Marisa and I joined thousands of women, men, and children in Washington, DC and other cities around the country to march for equality and for justice.

First and foremost on my mind while I marched with my daughter were the migrant and refugee women, children, and families for whom I advocate every day. With each step, I thought about the brave mothers who escape danger in their home countries because, like all mothers, they want a bright future for their children. Expecting to find safety at our border, these women and children are instead met by the Trump administration’s policies of ripping families apart.

I decided to march today in honor of the women and children who reach for safety but are instead betrayed.

The Women’s Refugee Commission will march forward with our important work supporting women and children seeking safety at our border. We will continue to utilize the court systems, inform the press and public, and hold the Trump administration accountable until asylum seekers have the protection and services they need to be safe, healthy, and to rebuild their lives. But there is strength in numbers.

In the spirit of the Women’s March, and the women for whom we march, please join us by donating today.

We can accomplish so much more together than we can alone.

In solidarity,

Michelle Brané
Director, Migrant Rights and Justice Program

DONATE

© 2017 Women’s Refugee Commission. All rights reserved.
The Women’s Refugee Commission is a 501(c)(3) organization.
Donations are deductible to the full extent allowable under IRS regulations.
15 West 37th Street, 9th Floor, New York, NY 10018 • Tel. (212) 551-3115”

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Like me, my friend Michelle began her career as an Attorney Advisor at the BIA. She is also a distinguished alum of Georgetown Law where I am an Adjunct Professor.

The Women’s Refugee Commission does some fantastic work in behalf of vulnerable women and children who arrive at our border seeking refuge and justice, only to be detained and railroaded back to life-threatening conditions by the anti-refugee, anti-Due-Process, White Nationalist regime of Trump, Sessions, Miller, Nielsen, and their complicit minions.

Michelle was named one of the “21 Leaders for the 21st Century” by Women’s e-News.

Imagine what a great country this could be if our Government and our justice system were led by smart, courageous, principled, values-driven, humane leaders like Michelle and her colleagues, rather than by a cabal of morally bankrupt White Nationalist men and their sycophantic subordinates.

PWS

01-22-18

 

ANOTHER DUE PROCESS ASYLUM VICTORY FOR THE GW IMMIGRATION CLINIC AT THE ARLINGTON IMMIGRATION COURT!

Professor Benitez reports:

“Friends,

Please join me in congratulating Immigration Clinic student-attorney Solangel González, who this afternoon won a grant of asylum for her clients, N-R and her two minor children, from El Salvador.  The ICE trial attorney waived appeal so the decision is final.  The immigration judge (IJ), Quynh Vu Bain, commenced today’s proceeding in the above manner.

N-R was threatened by the MS gang in her country because of her familial relationship with her uncle, who was murdered by the gang.  After her uncle’s body was discovered, N-R called the police.  While discussing the murder with a police officer a gang member walked by and saw the discussion.  During the discussion, however, the police officer told N-R that it was best if she dropped the matter because, if they found out she filed a complaint, the gang could kill her kids.  N-R later was told by a gang associate that she and her kids would be killed if she pursued the complaint.  Out of caution, N-R moved with her children to another part of El Salvador, but the gang continued to look for her.  Finally, N-R and her children fled to the USA.  N-R testified that the gang members continue to look for her.

Congratulations also to Alyssa Currier, Karoline Núñez, Chen Liang, and Jonathan Bialosky, who previously worked on this case.

NOTE:  While waiting in the lobby for her case to be called, Solangel escorted a respondent, who didn’t know where to go and who didn’t know who her lawyer was, to her assigned court room, thus avoiding a potential in absentia removal order.

**************************************************
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…”
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Congrats to all involved! It also illustrates one of the points that I repeatedly make. With good representation, adequate time to prepare, a good judge who knows asylum law and takes individuals’ rights seriously, and a conscientious Assistant Chief Counsel representing the DHS, many of the Central American asylum claims are very “winnable” under the law. That’s why detaining individuals in poor conditions in locations where competent pro bono counsel is not readily available and cases are being “raced through” to minimize detention expenses and maximize removal statistics is so unfair and such an obvious violation of due process.
Also, this is the Judge Quynh Vu Bain that I remember as a former colleague at the Arlington Immigration Court: fair, scholarly, hard-working, kind, and Due Process oriented. My Georgetown Law student observers remarked on how welcoming she was and how she went out of-her way to make sure that everyone in the courtroom understood what was happening and why.
Despite Sessions’s disdain for individual rights of migrants (particularly vulnerable asylum seekers) and Due Process, and his fanatic emphasis on using the U.S. Immigration Courts as mere tools of DHS enforcement, there are many U.S. immigration Judges out there working conscientiously every day to provide fairness and Due Process to vulnerable migrants while laboring under some of the highest stress levels and worst working conditions faced by any judges in America!
America needs an independent Article I United States Immigration Court dedicated to guaranteeing “fairness and due process for all” now!
DUE PROCESS FOREVER!
PWS
01-19-18

U.S. IMMIGRATION JUDGE RODGER P. HARRIS REPORTEDLY STANDS TALL FOR DUE PROCESS AS NEW COURT SUIT ALLEGES THAT HIS COLLEAGUES ON THE IMMIGRATION BENCH IN CHARLOTTE, N.C. ARE SCOFFLAWS WHO FAIL TO HOLD LEGALLY REQUIRED BOND HEARINGS!

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2018/01/18/lawsuit-challenges-immigration-judges-who-refuse-to-hold-bond-hearings-palacios-v-sessions.aspx?Redirected=true

From LexisNexis Immigration Community online:

“Lawsuit Challenges Immigration Judges Who Refuse to Hold Bond Hearings: Palacios v. Sessions

AIC, Jan. 17, 2018

“The government cannot lock people up without giving them access to prompt bond hearings and an opportunity to show that they should be released for the months or years that it takes to adjudicate their removal cases. This lawsuit challenges the actions of immigration judges in Charlotte, North Carolina who have done just that: refused to conduct bond hearings for people who properly file bond motions with the Charlotte Immigration Court.  The case was filed as a class action in the U.S. District Court for the Western District of North Carolina by the American Immigration Council, the CAIR Coalition, and Cauley Forsythe Law Group.”

Complaint

Brief in Support of Motion for Class Certification”

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Go on over to LexisNexis Immigration Community at the link for the complete story.
Check out paragraph 6 of the Complaint which contrasts the conduct of Judge Harris, who holds bond hearing in accordance with the law and established procedures, and the alleged conduct of his judicial colleagues in Charlotte.
Not surprising to me! Judge Harris was my colleague for years at the U.S. Immigration Court in Arlington Virginia where he had a reputation for scrupulously following the law and providing full due process to all who came before him. Just like a U.S. Immigration Judge is supposed to do.
On the other hand, prior to Judge Harris’s arrival, the Charlotte Immigration Court had a reputation among the private bar, commentators, and the press as a place where due process was often given short shrift, particularly in asylum cases.
Of course, these are merely allegations at this time. We’ll see what happens as the case progresses in Federal District Court.
While Sessions, McHenry, and the “Falls Church Crew” are screwing around with imaginary “goals and timetables’ — untethered to reality in a system with a 660,000 backlog and no real plan for resolving it — these are the real due process problems that are festering in the U.S. Immigration Courts and denying individuals their legal right to due process on a regular basis. Where’s the concern from “on high” with a court system that’s failing in its mission to provide due process to individuals under our Constitution? Obviously, the problem starts with a “Scofflaw Attorney General” who cares more about expediting removals and a White Nationalist immigration enforcement agenda than he does about the Constitution, Due Process, and the integrity of the U.S. Immigration Court system.
We need an independent Article I U.S. Immigration Court now!
PWS
01-18-18

 

MORE NONSENSE FROM EOIR: NEW “PRIORITIES & TIMETABLES” WON’T HELP RESOLVE 660,00 CASE BACKLOG, BUT WILL MINDLESSLY INCREASE STRESS, CAUSE MORE “ADR,” & IMPEDE DUE PROCESS!

http://www.foxnews.com/politics/2018/01/17/doj-issues-new-immigration-court-policies-addressing-obama-era-caseload-backup.html

Brooke Singman reports for Fox News:

“The Justice Department issued new measures on Wednesday that will prioritize certain immigration cases in an effort to streamline a system that nearly tripled the caseload of judges during the Obama administration.

A memo listing guidelines for all new cases filed and an order that all immigration court cases that are reopened must establish case priorities was sent by John [sic] McHenry, the director of the Justice Department’s Executive Office for Immigration Review, to the Office of Chief Immigration Judge, all immigration judges, all court administrators and all immigration court staff.

“In 2010, immigration court benchmarks for non-detained cases were abruptly abandoned, and since that time — perhaps non-coincidentally — the caseload has tripled,” Justice Department spokesman Devin O’Malley said in a statement to Fox News, noting that the reintroduction of court-based goals and benchmarks would “assist in properly managing cases, increase productivity, and reduce the pending caseload.”

“Some policies implemented in the immigration court system in recent years have contributed to a three-fold increase of the courts’ pending caseload,” O’Malley said to Fox News, noting that certain “prioritization practices” made the caseload “worse” by continuing cases that could be resolved more quickly in favor of cases that often took longer to complete.

It was “the immigration court equivalent of fiddling while Rome burned,” O’Malley said.

“Some policies implemented in the immigration court system in recent years have contributed to a three-fold increase of the courts’ pending caseload.”

– Devin O’Malley, DOJ spokesman

McHenry’s memo is part of a larger push led by Attorney General Jeff Sessions, who issued a broader memo late last year outlining principles to ensure that the “adjudication of immigration court cases serves the national interest,” and gave McHenry the “authority” to set time frames for the resolution of cases, and to evaluate the performance of immigration judges and “take corrective action where needed.”

Currently, less than 10 percent of immigration cases pending meet the definition of “priority,” according to McHenry, leading him to address “confusion” and “clarify” the department’s priorities. That statistic, however, conveys a “potentially mistaken impression” of the importance of completing the other 600,000-plus pending cases that do not bear a “priority” designation, according to McHenry.

“All cases involving individuals in detention or custody, regardless of the custodian, are priorities for completion,” McHenry wrote, but noted that “the designation of a case as a priority is not intended to mandate a specific outcome in any particular case.”

Other measures McHenry ordered were new benchmarks for courts, and for immigration judges.

The new measures require that 85 percent of all non-status detained removal cases be completed within 60 days of filing; 85 percent of all non-status non-detained removal cases be completed within 1 year of filing; and 85 percent of all motions adjudicated within 14 days of the request.

McHenry also required 90 percent of custody redeterminations to be completed within 14 days of the request, and 95 percent of all hearings to be completed on their initial scheduled hearing date.

Another new rule requires 100 percent of “all credible fear reviews” to be completed within seven days.

Fox News’ Jake Gibson contributed to this report.”

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Thanks to Dan Kowalski over at LexisNexis for sending this item my way.

Inane memos like this, issued without consultation and meaningful input from either the U.S. Immigration Judges who actually decide the cases or the attorneys who litigate in immigration Court, are basically “DOA.” Significantly, both the BIA and the Federal Courts have made it clear that compliance with bureaucratic “timeframes” can’t overrule the legal requirements of Due Process in an individual case. Even assuming that Sessions can “co-opt” the BIA, the Federal Courts will be sending back cases in which it appears that the Immigration Judge has elevated the desire to meet timeframes over the requirements of fundamental fairness and Due Process.

But, quite contrary to Acting Director James (not “John” as the article states) McHenry’s bogus claim that the memo does not suggest any particular outcome, the memo clearly suggests that U.S. Immigration Judges should cut corners and deny Due Process to meet these artificial guidelines or risk having their performance judged “deficient.” For example, most detained cases with asylum applications that go to an “Individual Merits” hearing are going to take more than 60 days for the Respondent to locate a pro bono attorney and for that attorney to complete the application and prepare for what often can be a very complex and hotly contested hearing.  It’s an open invitation, if not an actual directive, to engage in sloppy, unprofessional judging.

Moreover, the tone of the memo insultingly suggests that the problem is that  in the absence of this type of sophomoric “guidance from above” U.S. Immigration Judges haven’t been working very hard or effectively to complete cases. Therefore, “cracking the administrative whip” — by folks that by and large are not and never have actually been sitting U.S. immigration Judges — will somehow motivate them to “pedal faster.” What a crock! Almost any executive or manager worth his or her salt knows that this type of “scare tactic” applied to a senior professional workforce accomplishes nothing besides ratcheting up already astronomically high stress levels and unnecessarily diminishing already low morale.

This memorandum is, however, yet another key exhibit on how and why the current U.S. Immigration Court is being incompetently administered by the DOJ and their “gofors” over at EOIR Headquarters in Falls Church. With the likes of Jeff “Gonzo Apocalypto” Sessions in charge of the U.S. Immigration Courts, things are only going to get worse. American needs an independent Article I U.S. Immigration Court now! 

PWS

01-18-18

 

 

 

MORE DEADLY MISTAKES: 6TH CIR. FINDS BIA’S ERROR-RIDDLED DECISION WRONGLY SENT WOMAN BACK TO FACE CARTEL THREATS IN MEXICO – TRUJILLO DIAZ V. SESSIONS!

18a0012p-06-6thGangs

Trujillo Diaz v. Sessions, 6th Cir., 01-17-18, published

PANEL: MERRITT, MOORE, and BUSH, Circuit Judges.

OPINION  BY: Judge Bush.

SUMMARY (FROM OPINION):

“In this immigration case, Maribel Trujillo Diaz petitions for review of an order denying her motion to reopen removal proceedings. The United States Board of Immigration Appeals (“BIA”) ruled that Trujillo Diaz failed to establish a prima facie case of eligibility for asylum or withholding of removal under the Immigration and Nationality Act (“INA” or “Act”) because she failed to show that she would be singled out individually for persecution based on her family membership. The BIA reiterated this finding in ruling that Trujillo Diaz failed to establish a prima facie case of eligibility for protection under the Convention Against Torture. Because the BIA failed to credit the facts stated in Trujillo Diaz’s declarations, and this error undermined its conclusion as to the sufficiency of Trujillo Diaz’s prima facie evidence, we hold that the BIA abused its discretion. We further hold that the BIA abused its discretion in summarily rejecting Trujillo Diaz’s argument that she could not safely relocate internally in Mexico for purposes of showing a prima facie case of eligibility for relief under the Convention Against Torture. Thus, we vacate the order of the BIA and remand for further proceedings consistent with this opinion.”

KEY QUOTATION:

“The BIA’s abuse of discretion in failing to credit Trujillo Diaz’s father’s affidavit undermined its conclusion that Trujillo Diaz had not made a prima facie showing of eligibility for asylum and withholding of removal under the INA. This conclusion also affected the BIA’s analysis of whether Trujillo Diaz made a prima facie showing of eligibility for protection under the Convention Against Torture. Further, the BIA abused its discretion in summarily rejecting Trujillo Diaz’s argument that she could not safely relocate internally in Mexico for purposes of showing prima facie eligibility under the Convention Against Torture. Accordingly, we GRANT the petition and REMAND to the BIA for reconsideration consistent with this opinion.”

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Following the denial of her original claim for asylum, Trujillo Diaz was allowed by the Obama Administration as an exercise of prosecutorial discretion to remain in the United States with work authorization and faithfully checked in with the DHS. However, the Trump Administration arbitrarily targeted her for removal. Although many in the community, including the Catholic Church, protested, the Administration nevertheless removed Trujillo Diaz to Mexico while this motion was pending.

Our tax dollars are being squandered for this type of useless, immoral, and in this case ultimately wrongful removal. At no time has Jeff “Gonzo Apocalypto” Sessions shown any concern whatsoever for the significant  number of mistaken asylum denials and improper deportations taking place as a result of poor quality decision-making taking place in the over-stressed and overwhelmed U.S. Immigration Courts operating under his administration. Nor has he shown any appreciation for the obvious fact that rather than more speed in deporting individuals, this court system is badly in need of better representation for asylum seekers, more careful decision-making that complies with the law, and measures to insure Due Process as required by the U.S. Constitution. 

Sessions’s anti-due-process administration of the U.S. Immigration Courts is a national disgrace! We need an independent United States Immigration Court dedicated to insuring Due Process and protecting vulnerable individuals from wrongful removals like this! Now! 

PWS

01-18-18

 

GONZO’S WORLD: HIS HIGHLY DISINGENUOUS “TRIBUTE” TO DR. KING WHILE ACTIVELY UNDERMINING MLK’S VISION OF RACIAL EQUALITY IN AMERICA OUTRAGES CIVIL RIGHTS ADVOCATES! — Hollow Words From An Empty Man!

https://www.washingtonpost.com/world/national-security/sessions-in-remarks-criticized-as-beyond-ironic-praises-martin-luther-king-jr/2018/01/16/cb3a8bd8-fae3-11e7-a46b-a3614530bd87_story.html

 

Sari Horwitz reports for the Washington Post:

“All he had were his words and the power of truth,” Sessions said. “ . . . His message, his life and his death changed hearts and minds. Those changed souls then changed the laws of this land.”

But civil rights leaders criticized Sessions’s remarks, made at a time, they said, when the Justice Department is rolling back efforts to promote civil and voting rights.

Attorney General Jeff Sessions called Tuesday for Justice Department employees to “remember, celebrate and act” in commemoration of Martin Luther King Jr. (Mandel Ngan/AFP/Getty Images)

“It is beyond ironic for Jeff Sessions to celebrate the architecture of civil rights protections inspired by Dr. King and other leaders as he works to tear down these very protections,” said Vanita Gupta, the head of the Justice Department’s civil rights division under President Barack Obama and now president of the Leadership Conference on Civil and Human Rights.

“Make no mistake,” Gupta said. “If Dr. King were alive today, he would be protesting outside of Jeff Sessions’s office.”

Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, said that in the past year, the Justice Department under Sessions has taken action to “obstruct and reverse civil rights enforcement.”

She and others point to a new policy that calls for federal prosecutors to pursue the most serious charges even if that might mean minority defendants face stiff, mandatory-minimum penalties. Sessions has defended President Trump’s travel ban and threatened to take away funding from cities with policies he considers too lenient toward undocumented immigrants. The department’s new guidance and stances on voting rights and LGBT issues also might disenfranchise minorities and poor people, civil rights advocates say.

Justice officials say that Sessions’s actions reflect an aggressive, by-the-book interpretation of federal law and that his policies are geared toward fighting violent crime and drug trafficking.”

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Read the complete article at the above link.

Absurd and insulting! Actions speak louder than words, Gonzo! Every day that you spend in office mocks our Constitution, the rule of law, human decency, and the legacy of MLK and others who fought for racial and social equality and social justice under the law.

I have no doubt that if Dr. King were alive today, he and his followers would be on your and Trump’s  “hit list.” Indeed, peacefully but forcefully standing up to and shaming tone-deaf, White Nationalist, racially challenged politicos like you, who lived in the past and inhibited America’s future with their racism, was one of the defining marks of MLK’s life!

How do things like increasing civil immigration detention, building the “New American Gulag,” stripping unaccompanied children of their rights to an Immigration Court hearing, mindlessly attacking so-called “sanctuary cities,” mocking hard-working pro bono immigration attorneys and their efforts, reducing the number of refugees, excluding Muslims, building a wall, stripping protections from Dreamers, reducing legal immigration, favoring White immigrants, and spreading false narratives about Latino migrants and crime “honor” the legacy of Dr. King?

Indeed, the “Sanctuary Cities Movement” appears to have a direct historical connection to King’s non-violent civil disobedience aimed at the enforcement of “Jim Crow” laws. Much as today, those on the “wrong side of history” wrapped themselves in hypocritical bogus “rule of law” arguments as they mocked and violated the civil rights of African Americans. 

At some point, America needs and deserves a real Attorney General, one who recognizes and fights for the rights of everyone in America, including minorities, the poor, the most vulnerable, and the so-called undocumented population, who, contrary to your actions and rhetoric, are entitled to full Due Process of law under our Constitution. Imagine how a real Attorney General, one like say Vanita Gupta, might act. Now that would truly honor Dr. King’s memory.

PWS

01-17-18

 

SPLIT 9TH SHRUGS OFF DUE PROCESS VIOLATIONS IN EXPEDITED REMOVAL – BUT DISSENTING OPINION GIVES DUE PROCESS HOPE FOR THE FUTURE — GOMEZ-VELAZCO V. SESSIONS

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/01/10/14-71747.pdf

Gomez-Velazco v. Sessions, 9th Cir., 01-10-18, published

STAFF HEADNOTE:

“The panel denied Eladio Gomez-Velazco’s petitions for review from the Department of Homeland Security’s final administrative order of removal under 8 U.S.C. § 1228(b), concluding that Gomez-Velazco’s due process claim, based on his contention that he was denied the right to counsel, failed because he made no showing of prejudice.

Gomez-Velazco argued that DHS officers violated his right to counsel by pressuring him to concede removability without advice of counsel in his proceedings under 8 U.S.C. § 1228(b), a form of summary removal proceedings in which he did not have a hearing before an immigration judge. The panel concluded that it had jurisdiction to review Gomez- Velazco’s constitutional claim and assumed, without deciding, that the officers’ conduct violated his right to counsel.

The panel held that Gomez-Velazco was required to show prejudice in order to prevail on his claim, rejecting his contention that, in the context of a due process violation based on the denial of the right to counsel, prejudice should be conclusively presumed and automatic reversal should follow. The panel concluded that, at least in cases like that of Gomez-Velazco, where an individual is in administrative removal proceedings under 8 U.S.C. § 1228(b), does not waive the 14-day waiting period for judicial review, and is allowed to consult with counsel before the removal order is executed, a showing of prejudice is required. The panel further concluded that Gomez-Velazco failed to establish prejudice.

Dissenting, Chief District Judge Navarro wrote that she would grant the petition for review and vacate the final administrative order of removal. Judge Navarro would first make the distinct finding that Gomez-Velazco’s right to counsel was violated, and would hold that no prejudice is required to vacate the order, and that even if prejudice were required, Gomez-Velazco demonstrated sufficient prejudice.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.”

PANEL: Paul J. Watford and John B. Owens, Circuit Judges, and Gloria M. Navarro,* Chief District Judge.

* The Honorable Gloria M. Navarro, Chief United States District Judge for the District of Nevada, sitting by designation.

OPINION BY: Judge Watford

DISSENT BY: Chief USDC Judge Navarro

KEY QUOTE FROM MAJORITY:

“Under the Immigration and Nationality Act, the Department of Homeland Security (DHS) can seek to remove non-citizens from the United States through several different means. The most formal process involves a hearing in immigration court before an immigration judge, at which the individual to be removed can contest the charges against him and request various forms of relief from removal. See 8 U.S.C. § 1229a. Today, however, most non-citizens are ordered removed through streamlined proceedings— expedited removal, administrative removal, and reinstatement of removal—that do not involve a hearing before an immigration judge. See Jennifer Lee Koh, Removal in the Shadows of Immigration Court, 90 S. Cal. L. Rev. 181, 183–84 (2017); Shoba Sivaprasad Wadhia, The Rise of Speed Deportation and the Role of Discretion, 5 Colum. J. Race & L. 1, 2–3 (2014). The proceedings are summary in nature and conducted by front-line immigration enforcement officers employed by DHS.

This case involves administrative removal under 8 U.S.C. § 1228(b). A DHS officer ordered Eladio Gomez-Velazco, a native and citizen of Mexico, removed from the United States. Gomez-Velazco contends that his due process rights were violated because he did not have counsel present at the outset of the removal process. We will assume that a violation occurred. The question we address is whether Gomez-Velazco must show that he was prejudiced by the violation. We conclude that he must and that he has not done so. We therefore deny his petitions for review.”

TEXT OF CHIEF USDC JUDGE NAVARRO’S DISSENT:

“NAVARRO, Chief District Judge, dissenting:

I would grant the Petition for Review and vacate the Final Administrative Removal Order (“FARO”) issued on June 12, 2014.

I would first make the distinct finding—as opposed to the majority’s assumption—that Gomez-Velazco’s right to counsel was violated. “Although there is no Sixth Amendment right to counsel in an immigration hearing, Congress has recognized it among the rights stemming from the Fifth Amendment guarantee of due process that adhere to individuals that are the subject of removal proceedings.” Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004) (citing Rios-Berrios v. I.N.S., 776 F.2d 859, 862 (9th Cir. 1985)). While “[t]he right to counsel in immigration proceedings is rooted in the Due Process Clause,” Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005), the right to counsel in expedited removal proceedings is also secured by statute. 8 U.S.C. § 1228(b)(4)(B) (“[T]he alien shall have the privilege of being represented (at no expense to the government) by such counsel, authorized to practice in such proceedings, as the alien shall choose.”); 8 C.F.R. § 238.1(b)(2)(i) (“[The Notice of Intent] shall advise that the alien: has the privilege of being represented, at no expense to the government, by counsel of the alien’s choosing, as long as counsel is authorized to practice in removal proceedings”);

16 GOMEZ-VELAZCO V. SESSIONS

see also 8 C.F.R. § 238.1(b)(2)(iv) (requiring ICE to provide aliens facing expedited removal “with a list of available free legal services programs”).

Moreover, expedited removal proceedings under § 1228 require “conformity with section 1229a” and the “privilege of being represented” is further codified in that section as well. See 8 U.S.C. § 1229a(b)(4)(A). This right to be represented at no cost to the government is also listed on the “Notice of Intent to Issue a FARO” under “Your Rights and Responsibilities.” If the right to counsel under § 1228 is only for the noncitizen to be advised of the right to have counsel, with no practical effect, then it would be no right to counsel at all. See Rios-Berrios, 776 F.2d at 863 (explaining that the right to counsel must be respected in substance as well as in name).

Indeed, this Circuit has consistently emphasized the critical role of counsel in deportation proceedings. See, e.g., Reyes-Palacios v. I.N.S., 836 F.2d 1154, 1155 (9th Cir. 1988) (“The importance of counsel . . . can neither be overemphasized nor ignored.”); United States v. Cerda-Pena, 799 F.2d 1374, 1377 n.3 (9th Cir. 1986) (referring to “an outright refusal to allow an alien the opportunity to obtain representation” as “an egregious violation of due process”). We have characterized the alien’s right to counsel of choice as “fundamental” and have warned the agency not to treat it casually. Rios-Berrios, 776 F.2d at 863–64.

Here, the record clearly demonstrates that Gomez- Velazco asserted that he had counsel and wanted his counsel present. First, in Form I-213, ICE Officer Stewart explains that during the FARO proceedings, Gomez-Velazco “was unwilling to provide a sworn statement without an attorney

GOMEZ-VELAZCO V. SESSIONS 17

present.” Second, on the “Record of Sworn Statement” dated June 12, 2014, the first question states, “Are you willing to answer my questions?” to which Gomez-Velazco answered: “I prefer not to until I talk to my attorney.” DHS nevertheless proceeded with the expedited removal proceedings without first affording Gomez-Velazco the opportunity to notify and speak with his counsel as he requested. In doing so, DHS directly disregarded Gomez-Velazco’s ability to exercise this fundamental right.

Having found that Gomez-Velazco’s right to counsel was violated, I would then find that under Montes-Lopez v. Holder, 694 F.3d 1085 (9th Cir. 2012), no prejudice is required to vacate the FARO. The Montes-Lopez court held “an alien who shows that he has been denied the statutory right to be represented by counsel in an immigration proceeding need not also show that he was prejudiced by the absence of the attorney.” 694 F.3d at 1093–94. In support, the court stated that “the absence of counsel can change an alien’s strategic decisions, prevent him or her from making potentially-meritorious legal arguments, and limit the evidence the alien is able to include in the record.” Id. at 1092.

The majority here distinguishes Montes-Lopez by a distinction without a difference. First, the majority regards Montes-Lopez as “an exception to the general rule requiring a showing of prejudice;” however, prior to Montes-Lopez, there was no general rule that required a showing of prejudice—a fact that Montes-Lopez, Hernandez-Gil, and Biwot, the cases the majority relies so heavily on, all specifically identify. Id. at 1090 (“We have never decided, however, whether prejudice is an element of a claim that counsel has been denied in an immigration proceeding.”);

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Hernandez-Gil v. Gonzales, 476 F.3d 803, 808 (9th Cir. 2007) (“Because we determine that Hernandez-Gil has shown that he was prejudiced by the denial of his statutory right to counsel ‘we again leave unanswered the question whether a petitioner must show prejudice when he has been denied the right to counsel in removal proceedings.’”) (citing Biwot, 403 F.3d at 1100).

Second, the right to counsel is substantively the same under both the § 1228 expedited removal proceeding before a DHS deciding officer, as used here, and the § 1229 proceeding before the immigration judge, as in Montes- Lopez.1 Compare § 1228(b)(4)(B) with § 1229(b)(1); see also United States v. Peralta-Sanchez, 847 F.3d 1124, 1130 (9th Cir. 2017) (emphasizing the similarity of §§ 1228 and 1229 in the right to counsel context). Montes-Lopez’s holding refers to “an immigration proceeding” without differentiating between a proceeding before an immigration judge and a DHS deciding officer. Montes-Lopez, 694 F.3d at 1093–94.

Notably, the Montes-Lopez court purposefully distinguished pure immigration proceedings from collateral attacks on a removal order in a § 1326 illegal reentry criminal case, the latter of which requires prejudice specifically because of “the limitations on criminal defendants’ right to collaterally attack the result of a prior proceeding.” Montes- Lopez, 694 F.3d at 1093; see also Villa-Anguiano v. Holder, 727 F.3d 873, 876 n.1 (9th Cir. 2013) (contrasting the § 1326 illegal reentry collateral attack standard under Reyes-Bonilla with the immigration proceedings petition for review standard

1 The Government decides under which process to pursue deportation by issuing either a Notice of Intent to Issue a FARO under § 1228 or Notice to Appear under § 1229.

GOMEZ-VELAZCO V. SESSIONS 19

under Montes-Lopez). The Montes-Lopez court compared the collateral attack versus petition for review in the immigration context to the difference between a criminal collateral attack and a direct appeal: “A criminal defendant who alleges ineffective assistance of counsel must generally show prejudice, Smith v. Mahoney, 611 F.3d 978, 1001 (9th Cir. 2010), but a defendant who has been denied counsel need not. Campbell v. Rice, 408 F.3d 1166, 1176 (9th Cir. 2005).” 694 F.3d at 1092.

Deprivation of counsel is per se prejudicial. See Cerda- Pena, 799 F.2d at 1377 n.3 (“[A]n outright refusal to allow an alien the opportunity to obtain representation may be such an egregious violation of due process so as not to require any further showing of prejudice”); Garcia-Guzman v. Reno, 65 F. Supp. 2d 1077, 1087 (N.D. Cal. 1999) (explaining that “Cerda-Pena therefore suggests that if the violation of the right to counsel is sufficiently egregious—i.e., a clear denial of representation or outright refusal to permit an alien to obtain representation—prejudice needn’t be shown.”).

The majority attempts to downplay the inherent prejudice of this situation by comparing it to discrete stages of a criminal proceeding, such as a preliminary hearing, a court- ordered psychiatric examination, post-indictment interactions with undercover police officers, and pre-trial line-ups. However, none of these situations are comparable to the instant case. Here, Gomez-Velazco was in custody by DHS when he asked for an attorney—a situation that, in a non- immigration case, would normally mandate an attorney as soon as a defendant requests one.

Furthermore, in drawing comparisons to these Sixth Amendment situations, the majority attempts to illustrate how

20 GOMEZ-VELAZCO V. SESSIONS

the standard in those cases are only “subject to harmless error review rather than an automatic reversal rule,” and the majority concludes that because this is a similar discrete stage, prejudice is required rather than presumed. However, in arguing this, the majority once again completely disregards Montes-Lopez. There, the court held that “[w]hen this court concludes that an agency has not correctly applied controlling law, it must typically remand, even if we think the error was likely harmless.” Montes-Lopez, 694 F.3d at 1092 (citing INS v. Orlando Ventura, 537 U.S. 12, 16–17 (2002)). Importantly, Montes-Lopez adopts the reasoning of the Second Circuit, which “declined to add a prejudice requirement to this rule because [the court] reasoned that automatic reversal upon violation of such a regulation would encourage agency compliance with its own rules and serve the interests of judicial economy.” Id. at 1091 (citing Montilla v. INS, 926 F.2d 162, 169 (2d Cir. 1991)). We must recognize that in mandating automatic reversal, not only will we continue to protect this right to counsel, but also we will better hold these agencies accountable in their actions and conduct by enforcing their own regulations more strictly upon them. In holding that this situation is akin to a harmless error review, the majority disregards Montes-Lopez’s holding and downplays the right to counsel.

The majority attempts to distinguish Montes-Lopez by stating that it is different than the instant case because it is “based in part on the practical difficulties one would face in trying to prove that the outcome of the merits hearing would have been different had counsel been able to assist.” The majority reasons that Montes-Lopez differs because “Gomez- Velazco was not denied the assistance of counsel throughout the entirety of the administrative removal process” but that he “lacked counsel at one discrete stage of the process.”

GOMEZ-VELAZCO V. SESSIONS 21

To carve out such a nuanced distinction undermines the fundamental nature of the right to counsel. See, e.g., Hernandez-Gil, 476 F.3d at 806 (“The high stakes of a removal proceeding and the maze of immigration rules and regulations make evident the necessity of the right to counsel.”); Montes-Lopez, 694 F.3d at 1091 (“No showing of prejudice is required, however, when a rule is ‘intended primarily to confer important procedural benefits upon indiv[i]duals’’ or ‘when alleged regulatory violations implicate fundamental statutory or constitutional rights.’”) (quoting Leslie v. Attorney Gen., 611 F.3d 171 (3d Cir.2010)). Likewise, to permit an agency to continue to ignore its own regulations undermines the fundamental nature of the right to counsel. Finally, to ignore established precedent in favor of the majority’s new exception undermines the fundamental nature of the right to counsel. Accordingly, I would vacate the FARO because Gomez- Velazco established a right to counsel due process violation and therefore need not show prejudice.

Even if prejudice were required, however, it should be assessed under the “plausibility” standard set forth by United States v. Cisneros-Rodriguez, 813 F.3d 748, 760 (9th Cir. 2015): “[W]hether the defendant had identified a form of relief it was plausible he would have obtained absent the due process violation.” In Cisneros-Rodriguez, the defendant argued that “had she obtained counsel [during her predicate § 1228 proceeding], it is plausible that she would have applied for and obtained a U-visa.” Id. at 753. The court agreed that because she demonstrated prima facie U-Visa eligibility, it was plausible that she would have obtained a U- Visa had she applied for one at the time of her original § 1228 proceeding. Id. at 761. This finding was made despite the

22 GOMEZ-VELAZCO V. SESSIONS
fact that the defendant later applied for a U-Visa and was

rejected. Id. at 762.

Here, the record demonstrates that Officer Stewart—the arresting ICE officer who provided the evidence to Deciding Officer Elizabeth C. Godfrey for the issuance of the FARO—knew that Gomez-Velazco was represented by counsel and that Gomez-Velazco had a pending U-Visa application. When Officer Stewart nevertheless chose to arrest Gomez-Velazco and continue with the § 1228 proceeding without allowing him to consult with his attorney, Gomez-Velazco was prejudiced more than the defendant in Cisneros-Rodriguez because he had a plausible and pending U-Visa application. As such, I cannot agree with the majority that Gomez-Velazco failed to demonstrate sufficient prejudice under Cisneros-Rodriguez.

Ultimately, even without a finding of prejudice, the majority’s decision to deny Gomez-Velazco’s petition for review dilutes the fundamental right to counsel and completely ignores indistinguishable precedent. See Hernandez v. Holder, 545 Fed. Appx. 710, 713 (9th Cir. 2013) (Ikuta, J., concurring) (unpublished opinion) (stating disagreement with Montes-Lopez while still acknowledging that the Ninth Circuit is bound by its decision). Accordingly, I must respectfully dissent.”

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Sure seems to me that Chief Judge Navarro is right that the majority fails to follow the Ninth Circuit’s long-stnding precedent in Rios-Berrios v. I.N.S., 776 F.2d 859, 862 (9th Cir. 1985). Indeed, if anything the due process need for counsel in so-called “Expedited Removal” before an Immigration Officer appears even greater than that before an Immigration Judge which was found to be per se prejudicial in Rios-Berrios. Also, it’s quite ironic that a District Judge sitting by designation has a better understanding of 9th Circuit precedent than her 9th Circuit colleagues in the majority!

In any event, there is some “good stuff” in this dissent for anyone challenging the lack of counsel in Expedited Removal on due process grounds. Also, I wouldn’t be surprised to see Chief Judge Navarro’s views prevail in some other Circuits as the Trump Administration and DHS “push the envelope” on Expedited Removal.

PWS

01-13-18

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

TAL @ CNN: TRUMP ADMINISTRTATION EXPECTED TO INFLICT MORE UNNECESSARY PAIN & SUFFERING ON LATINO COMMUNITIES NEXT WEEK BY TERMINATING TPS FOR EL SALVADOR!

http://www.cnn.com/2018/01/06/politics/homeland-security-nielsen-temporary-protected-status-el-salvador/index.html

Tal writes:

New DHS secretary faces first immigration litmus test

By Tal Kopan, CNN

New Homeland Security Secretary Kirstjen Nielsen faces her first major test on immigration policy next week with a decision that could force upwards of 250,000 Central Americans to leave the United States or scramble to find a way to stay.

Monday is the deadline for deciding the future of a protected status for nationals of El Salvador, and the Department of Homeland Security is widely expected to announce an end to the program, which has offered work permits and the right to live in the United States.

More than 260,000 Salvadorans are covered by the program, according to US Citizenship and Immigration Services, but some experts estimate roughly 200,000 of them could be left without the protected status, based on previous department estimates. Salvadorans make up the largest share of immigrants protected by the program, and all of them have lived in the United States since at least 2001.

While the Homeland Security Department has not yet announced its decision, its actions this year have signaled a tougher approach to the program, which allows individuals from countries affected by crises like natural disasters, war and epidemics to stay in the US and work without being deported. The “temporary protected status,” as it is known, lasts for about two years before needing to be renewed. El Salvador’s status has been continually renewed since 2001, when it was granted after a series of earthquakes.

The pending deadline marks the first major immigration decision that will fall to Nielsen, who has thus far pledged to carry on the legacy of her predecessor and former boss, John Kelly, who is now White House chief of staff.

This fall, her department ended temporary protected designations for thousands of immigrants, including more than 50,000 from Haiti and thousands more from Nicaragua and Sudan, which critics say needlessly uproots contributing immigrants to send them back to unstable countries.

Acting Secretary Elaine Duke, however, extended protections for more than 80,000 Hondurans for six months because she said she was unable to reach a decision about whether conditions in that country had improved enough to terminate the protected status. That decision prompted heavy pressure from the White House to end the protections, sources said, though Duke later denied accounts that said she felt distressed and disappointed by the interference from Kelly.

Nielsen has the ultimate decision on whether to extend El Salvador’s status, but advocates on the issue from both sides of the aisle anticipate a similar decision to that on Haiti, a struggling country as well, but one the department says has recovered from its devastating earthquake in 2010. If Nielsen opts to end the Salvadorans’ protections, it likely would give them 12 to 18 months to apply for some other visa to stay in the United States or prepare to leave.

When the protections end, recipients revert to the status they have otherwise, which would likely leave a number of Salvadorans undocumented after nearly two decades of legally working and living in the United States.

Groups on the right that advocate for restricting immigration are pressing the Homeland Security Department to end the status for El Salvador, and were concerned during Nielsen’s confirmation that she would be adequately hard-line in implementing President Donald Trump’s immigration agenda.

“(Monday’s decision) is a test of whether she properly reflects the Trump campaign’s commitment to the people on these issues,” said Dan Stein, president of the Federation for American Immigration Reform. “We’d be very disappointed to see TPS extended yet again — with no credible justification.”

“Allowing them to stay longer only undermines the integrity of the program and essentially makes the ‘temporary’ protected status a front operation for backdoor permanent immigration,” added Roy Beck, president of NumbersUSA.

There is one area of agreement between the groups on the right like FAIR and NumbersUSA and advocates on the left who say ending temporary protected status for El Salvador would be an unnecessary and cruel move — Nielsen’s decision will toss a political hot potato to Congress.

In ending the protections for other groups, the Homeland Security Department has urged outraged lawmakers to enact legislation rather than continue to force the secretary to make the decisions.

“It will be couched in nice terms, but it actually will be a dramatic move,” Frank Sharry, executive director of America’s Voice Education Fund, a pro-immigration reform group, said of his expectation that DHS will urge Congress to act. “These are Salvadorans who have been living in the United States with work permission for almost 20 years. These are people who are American in all but their paperwork. And the idea that we’re going to try to drive them back to a country that is engulfed in weak governance and corruption and violence is unthinkable.”

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How dumb is it to terminate TPS for El Salvador. I ran into a respected local immigration attorney over the Holidays. While she decried the stupidity and wastefulness of the anticipated decision to terminate Salvadoran TPS, she said that it would have little practical effect on most of her Salvadoran TPS clients.

By now, she related, they all have strong prima facie claims for what is known as “Non-Lawful Permanent Resident Cancellation of Removal” based on “exceptional and extremely unusual hardship” to U.S. citizen spouses or children. Once TPS runs out and these cases are placed on the already dysfunctional Immigration Court docket, she will file the Form EOIR-43 Application for Cancellation of Removal and seek work authorization while the cases are pending before the Immigration Courts. She anticipates that given the current and anticipated backlogs in the local U.S. Immigration Courts, those cases will receive “Individual (Merits) Hearings” about five or six years from now.

Some, she thinks most, will succeed. Those that fail will exercise their appellate rights, thus further extending the process. By that time, the already feeble rationale for actually removing them for the U.S. will be even weaker. And, by then, we likely will have a different Administration and Congress that hopefully will take a more realistic, humane, and pro-American approach to the plight of the TPSers.

How dumb is terminating TPS? I’d hazard to guess that Salvadorans with “permits’ — work authorizations granted under TPS — form the backbone of the booming Northern Virginia construction and remodeling industry. If they were removed tomorrow, everyone in the region would suffer an immediate, and not easily reversible, economic downturn.

Similar problems will occur throughout the nation, not to mention the likely destabilization of El Salvador from the return of so many individuals who had long resided in the U.S to a country already in serious turmoil. In  other words, the Trump Administration appears to be in the process of engineering a human rights, foreign policy, and economic disaster on multiple levels.

PWS

01-07-18

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UPDATE:

Nick Miroff at the Washington Post reports that the Secretary of DHS has decided to end Salvadoran TPS, effective September 9, 2019.

https://www.washingtonpost.com/world/national-security/trump-administration-to-end-provisional-residency-for-200000-salvadorans/2018/01/08/badfde90-f481-11e7-beb6-c8d48830c54d_story.html

“The Trump administration will announce Monday that it intends to cancel the provisional residency permits of about 200,000 Salvadorans who have lived in the country since at least 2001, leaving them vulnerable to deportation, according to mulitple people on Capitol Hill who’ve been apprised of the plan.

The administration will notify the Salvadorans they have until Sept. 9, 2019 to leave the United States or find a new way to obtain legal residency, according to a copy of the announcement prepared by the Department of Homeland Security that will be published Monday morning.

The Salvadorans were granted what is known as Temporary Protected Status, or TPS, after a series of earthquakes devastated the country in 2001.

DHS is preparing to announce that Secretary Kirstjen Nielsen has decided the conditions in El Salvador have improved significantly since then, ending the original justification for the Salvadorans’ deportation protection, these people said.”

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Read Nick’s complete report at the link.

PWS

01-08-18

 

ROBIN UREVICH @ CAPITAL & MAIN: “ICEY DEATH” — How The “New American Gulag” Is Killing Civil Immigration Detainees!

Investigative Reporter Robin Urevich of Capital & Main is writing a continuing series on immigration detainee deaths in ICE detention. Here are excerpts from her first two articles.

“Since 2016, 23 men and women have died inside Immigration and Customs Enforcement detention centers. They came from 15 countries in Latin America, Asia, Europe, the Middle East and the Caribbean, and ranged in age from 23 to 65. The detainees included Osmar Gonzalez Gadba, a Nicaraguan national who hanged himself in his cell at the Adelanto Detention Facility near San Bernardino; a Panamanian named Jean Jimenez Joseph, who also committed suicide, in Georgia’s Stewart Detention Center; and Moises Tino Lopez, a young Guatemalan who died of “cardiac arrest” in a Nebraska jail. They were not prisoners serving criminal sentences, but immigrants who existed in a legal twilight without the freedom to leave their places of incarceration — in at least one case, because the detainee couldn’t afford the cost of bail.

Read “The Lonely Death of Moises Tino Lopez”
Capital & Main has launched a new project, Deadly Detention, to give names and faces to these 23 dead, and to explain how they met such sad fates in the country most had come to in search of better lives. It is a counterweight to ICE’s secrecy and comes as the Trump administration expands an already sprawling detention system to accommodate the growing number of immigrants caught up in its deportation surge. (In September and October of this year, the Department of Homeland Security issued notices to potential bidders that it was interested in establishing new detention centers near Chicago, Detroit, St. Paul, Salt Lake City and one in South Texas that would hold some 1,000 detainees.)

We have petitioned for detailed information about each detainee death since 2016 under the federal Freedom of Information Act. ICE publicly released 13 of these detainee death reviews this month. Although far from conclusive, the reviews aim a rare spotlight on poor and often delayed care at the nation’s nearly 250 detention centers and county jails that house immigration detainees, many of which are in remote locations and largely hidden from public view.

Capital & Main has dug deeply into how and why these and other deaths occurred, whether or how they could be prevented, who is responsible and how the system can function more humanely.

This project begins as ICE signals a move toward even less openness than it has previously displayed. The agency has received preliminary approval from the National Archive and Record Administration to destroy records of detainee deaths and in-custody sexual assaults after 20 years, and solitary confinement documents after just three years.”

Read the rest of Robin’s First article here:

Deadly Detention: Why Are Immigrants Dying in ICE Custody?

Here’s Part Il:

“It’s an open question whether Tino Lopez would be alive if he hadn’t landed in the Hall County Jail. But it was clearly bad luck that got him locked up in the first place.

According to Rose Godinez, an American Civil Liberties Union attorney, Tino Lopez would have had a chance to fight his case with a competent immigration attorney. He hadn’t committed a crime in the United States; he was ordered deported simply because he had entered here illegally, was caught and later failed to check in with immigration authorities, possibly because he didn’t understand the requirement.

He probably had a case for asylum, according to Godinez. Tino Lopez and his wife claimed they had been threatened by gun-wielding supporters of a mayoral candidate they had opposed in Guatemala, and said they feared for their lives. Juarez has since been granted a work permit in her asylum case on the same grounds, and has been told by her attorney that she’ll likely prevail.

Tino Lopez’s death triggered a criminal investigation by the Nebraska State Patrol and a grand jury proceeding, both required by Nebraska law following inmate deaths. The grand jury determined no crime was committed in his death. But an ICE review concluded that the Hall County Jail, which currently houses some 80 immigrant detainees, violated a number of ICE federal detention standards on medical care, and took other questionable actions that concern the agency.

All told, the documents raise questions about the jail’s ability to properly care for medically vulnerable detainees.

“The first [seizure] should have prompted a high level of concern and attention,” said Dr. Marc Stern, a correctional health-care expert. “And if the first one didn’t, the second one should have.”
In recent years ICE has come under fire for alleged substandard medical care in detention centers and in county jails. In a Human Rights Watch report released earlier this year, two physicians who reviewed 18 ICE detainee deaths found that poor care probably contributed to seven of them.

At the Hall County Jail, as in many ICE detention facilities, health care is provided by a for-profit contractor. Advanced Correctional Healthcare, based in Peoria, Illinois, serves over 250 jails and prisons in 17 Midwestern and Southern states and, on its website, states the company is saving thousands of dollars for local governments. But in the past 12 years, more than 150 inmates or their families have filed suit against the company and the local jails it serves, alleging they were hurt or their loved one killed as a result of poor care from ACH. Three wrongful death suits have been lodged in federal court against the company in the past six months alone.”

Here’s the link to the complete article:

Deadly Detention: The Lonely Death of Moises Tino Lopez

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Congress is legally and morally responsible for funding, and in many cases actively encouraging, the New American Gulag. But, “We the People” are also responsible for those supposedly elected to govern in accordance with our Constitution and values. Tell your Senators and Representatives that it’s time to drastically reduce and carefully regulate civil immigration detention!

PWS

01-06-18

 

WRONG AGAIN: BIA ERRED IN FINDING THAT NV “CONSPIRACY TO POSSESS DRUGS” IS A BASIS FOR REMOVAL — VILLAVICENCIO V. SESSIONS

Julio Villavicienco Decision Published_

Villavicienco v. Sessions, 9th Cir., 01-05-18, published

STAFF HEADNOTE:

“The panel granted Julio Cesar Villavicencio’s petition for review of the Board of Immigration Appeals decision, concluding that Villavicencio was not removable for a controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i) because the statutes under which he was convicted of conspiracy to possess drugs, Nevada Revised Statutes §§ 199.480 and 454.351, are overbroad and indivisible.

The panel held that the Nevada conspiracy statute, NRS § 199.480, is overbroad when compared to the generic definition of conspiracy because the Nevada statute lacks the requisite “overt act” element. Therefore, the panel concluded that the categorical approach may not be used to determine removability. The panel also concluded that application of the modified categorical approach is foreclosed because this court has already determined that NRS § 199.480 is indivisible.

The panel further held that NRS § 454.351, which covers any drug which may not be lawfully introduced into interstate commerce under the Federal Food, Drug and Cosmetic Act, is categorically overbroad relative to the substances controlled under 21 U.S.C. § 802. The panel also concluded that, although the Nevada statute lists multiple means of violation, i.e., possessing, procuring, or manufacturing,

because jurors need not agree on the means of the violation, the statute must still be regarded as indivisible. Accordingly, the panel held that the statute cannot be used as a predicate offense to support removal

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.”

PANEL: Mary M. Schroeder and Johnnie B. Rawlinson, Circuit Judges, and William H. Stafford, Jr.,* District Judge.

* The Honorable William H. Stafford, Jr., United States District Judge for the Northern District of Florida, sitting by designation.

OPINION BY: Judge Rawlinson

KEY QUOTE:

“Villavicencio was not removable under 8 USC § 1227(a)(2)(B)(i). N.R.S. §§ 199.480 and 454.351 are both overbroad. N.R.S. § 199.480 criminalizes a broader range of conduct than is described in the generic definition of conspiracy, and N.R.S. § 454.351 encompasses a wider range of substances than those set forth in the federal Controlled Substances Act. Because neither statute is divisible, the modified categorical approach was unavailable to determine if Villavicencio was convicted of a removable offense. As a result, Villavicencio is entitled to his requested relief reversing the determination of removability.”

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Admittedly, this is complicated stuff. But, the BIA is supposed to have “special expertise.”

Given the complexity of these determinations, how could an unrepresented immigrant ever hope to present a defense like this? (Look at the list of pro bono counsel who appeared for the respondent in this case!) How can Removal Hearings conducted where only the DHS is represented by counsel possibly comply with Due Process? (Particularly in light of the recent memo from the Chief Immigration Judge “reminding” Immigration Judges not to “act as counsel” for unrepresented respondents.) How can intentionally detaining immigrants and establishing so-called “courts” in detention centers in out-of-the-way locations where pro bono counsel are known to be generally unavailable possibly comply with Due Process? Why aren’t Immigration Judges and the BIA taking the time and doing the research to get cases like this right in the first place? How does Sessions’s exclusive emphasis on “peddling faster” and “churning out” more final removal orders effectively address the glaring systemic “quality control” problems exposed by cases like this?

PWS

01-06-17

 

 

LAW360: BIA REMOVES IMMIGRATION JUDGE FOR ABUSIVE CONDUCT DURING HEARING!

https://www.law360.com/articles/999284/judge-s-hostile-and-bullying-acts-prompt-new-hearing

Kevin Penton reports for Law360:

“Law360, New York (January 5, 2018, 9:27 PM EST) — The Board of Immigration Appeals has vacated an immigration judge’s denials of a Salvadoran native’s bids to secure asylum and to duck deportation, after finding that the judge used “hostile and bullying behavior” toward the individual’s attorney.

The BIA wants a different judge to review the case, essentially from scratch, after finding that the Immigration Judge Quynh V. Bain “screamed” at the lawyer for more than five minutes, mimicked her voice, called her “several disrespectful names,” said she was “unprofessional” and refused to allow a recess…”

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Those with complete Law360 access can read Penton’s full story at the link. Kudos to the BIA for “stepping up” to stop such abuses and protect due process!

Surprisingly, and sadly, Judge Quynh V. Bain is one of my former colleagues at the U.S. Immigration Court in Arlington, Virginia. The Arlington Immigration Court generally has had a well-deserved reputation for fairness, professionalism, respect, teamwork, and unfailing courtesy. In other words, it’s always been a court where lawyers on both sides enjoy practicing. Indeed, it often serves as a “training court” for student attorneys, interns, new Assistant Chief Counsel, and newly appointed U.S. Immigration Judges. So, I’d have to assume that this was an aberration in the context of Arlington.

Nevertheless, given the high stress levels that U.S. Immigration Judges are already working under, the plans of Attorney General Jeff “Gonzo Apocalypto” Sessions to “torque up” the pressure on Immigration Judges to turn our final orders of removal without much, if any regard, for due process, the counter-pressure from the U.S. Courts of Appeals for Immigration Courts to function like “real” courts, the many newly appointed inexperienced Immigration Judges, and the lack of meaningful training for Immigration Judges, I would expect such incidents to increase in the future. Just another reason why it’s past time for an independent Article I U.S. immigration Court!

Changing to the topic of Law360, one of my favorite “immigration beat” reporters, Allissa Wickham (a/k/a the fabulous “AWick”) tells me that she has left Law360 for a “new gig” with HBO, working on a show featuring Wyatt Cenac (formerly of the “Daily Show”). The show is scheduled to air this spring. Allissa says that she will continue to do original reporting, so hopefully at least some immigration topics will find their way into her “portfolio.” Good luck Allissa, and thanks for all of your great immigration reporting, clear writing, and many contributions while at Law360!

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PWS

01-06-18

 

 

 

 

GO SEE “DUE PROCESS IN ACTION” (FEATUIRING THE FABULOUS GW LAW IMMIGRATION CLINIC STUDENT ATTORNEYS) AT THE U.S. IMMIGRATION COURT IN ARLINGTON, VA IN 2018!

HERE’S “THE SCHEDULE:”

Spring 2018 ICHs – Immigration Clinic

 

# DATE/TIME Client Name Student-Attorney Immigration Judge Type of Case Country of Origin
1 01/11/2018 at 1pm M-A-A- Gisela Camba IJ Owens Asylum (PSG-Family ) Honduras
2 01/18/2018 at 1pm N-R- Solangel Gonzalez IJ Bain Asylum (PSG- Family) El Salvador
3 02/07/2018 at 1pm M-C-C- Caroline Hodge IJ Soper Cancellation of Removal (Non-LPR) Mexico
4 02/14/2018 at 1pm F-R- Julia Navarro IJ Soper Asylum (PSG –Family) El Salvador
5 03/07/2018 at 9am S-M-B- Dana Florkowski IJ Bain Asylum (PSG-DV) El Salvador
6 03/07/2018 at 9am S-N-, Y-N-, C-N- TBD IJ Bryant Asylum/U Visa Honduras
7 03/15/2018 at 9am B-R-S- Phuong Tran IJ Owens Asylum (PSG – former police officer) El Salvador
8 04/02/2018 at 1pm R-I- Ami Patel IJ – Unassigned Asylum (Religion) Egypt
9 04/24/18 at 1pm M-M-P- Fatimah Hameed IJ Burman Asylum (PSG – Family) Honduras
Friends,
Happy New Year.
The link to the Arlington Immigration Court follows, and the list of the Immigration Clinic Individual Calendar Hearings (ICHs) in the spring is attached.  You are welcome to attend any and all of the ICHs.  Your students, colleagues, etc., are welcome too.  No RSVP is required but I do suggest you check with Paulina Vera (pnvera@law.gwu.edu) and/or me a day or two before to confirm (or not) that the hearings will go forward.

https://www.justice.gov/eoir/arlington-immigration-court

**************************************************
Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…
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I can personally testify that having a chance to observe the GW Immigration Clinic in person is a treat and a lesson in “how to prepare an Immigration Court case the right way!”
Thanks to my good friend and neighbor Professor Alberto Benitez and his distinguished colleague Paulina Vera (also a former Arlington Intern and “Charter Member” of the “new Due Process Army”) for passing this along and for what they are doing for future generations of lawyers and Due Process in America!
PWS
01-05-18

MENTAL COMPETENCY HEARING: 9th CIR. CALLS OUT BIA FOR ERRONEOUS FACTFINDING AND FAILURE TO FOLLOW OWN PRECEDENT – CALDERON-RODRIGUEZ V. SESSIONS

16-70225-9th Competenc – y

Calderon-Rodriguez v. Sessions, 9th Cir., 01-03-18, published

COURT’S HEADNOTE:

The panel granted Henri Calderon-Rodriguez’s petition for review of the Board of Immigration Appeals’ decision, concluding that the Board in two related ways abused its discretion in affirming the IJ’s competence evaluation and determination.

First, the Board affirmed the IJ’s inaccurate factual findings, failing to recognize that the medical record upon which the IJ and Board heavily relied was nearly a year old, and that it may have no longer reflected Calderon’s mental state.

Second, the Board affirmed the IJ’s departure from the standards set out by the Board for competency determinations in Matter of M-A-M-, 25 I. & N. Dec. 474 (BIA 2011). Specifically, the panel concluded that the IJ did not adequately ensure that the Department of Homeland Security complied with its obligation to provide the court with relevant materials in its possession that would inform the court about Calderon’s mental competency. In this respect, the panel noted that, importantly, neither the IJ nor the Board recognized that, as DHS was providing ongoing medical care to Calderon as a detainee, it necessarily possessed additional relevant, but not introduced, medical records.

The panel remanded to the Board with instructions to remand Calderon’s case to the IJ for a competence evaluation based on current mental health reviews and medical records, as well as any other relevant evidence.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

PANEL:  A. Wallace Tashima and Marsha S. Berzon,Circuit Judges, and Matthew F. Kennelly,* District Judge.* The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation.

OPINION BY: Judge Berzon

KEY QUOTE:

“First, the BIA affirmed the IJ’s inaccurate factual finding about the mental health evidence in the record. Neither the IJ nor the BIA recognized that the medical record upon which they heavily relied was nearly a year old, and that it may have no longer reflected Calderon’s mental state. Instead, the IJ referred to the medical record as an “updated” reflection of Calderon’s present mental health condition, and stated that the record showed that Calderon “[p]resently . . . is not exhibiting any active PTSD symptoms, suicide ideation, hallucinations, or psychosis” (emphasis added). Those findings as to Calderon’s condition at the time of the hearing were not supported by the year-old date on the mental health record. As these critical factual findings were made “without ‘support in inferences that may be drawn from the facts in the record,’” Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012) (quoting Anderson v. Bessemer City, 470 U.S. 564, 577 (1985) and citing United States v. Hinkson, 585 F.3d 1247,M1262 (9th Cir. 2009) (en banc)), they constituted an abuse of discretion.

Second, the BIA abused its discretion by affirming the IJ’s departure from the standards set forth in Matter of M-A-M-, 25 I&N Dec. at 480–81. See Mejia, 868 F.3d at 1121. While the IJ did “take” at least some “measures” to determine whether Calderon was competent, Matter of M-A- M-, 25 I&N Dec. at 480, she did not adequately ensure that DHS complied with its “obligation to provide the court with relevant materials in its possession that would inform the court about the respondent’s mental competency,” as required by Matter of M-A-M-. Id.

Importantly, neither the IJ nor the BIA recognized that, as DHS was providing ongoing medical care to Calderon as a detainee, it necessarily possessed additional relevant, but not introduced, medical records. There were, indeed, specific indications that there were later medical records not provided to the IJ or the BIA that could have reflected a deterioration in Calderon’s condition.”

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This unrepresented Respondent has been in DHS custody for going on six years! This case previously reached the Court of Appeals and was remanded at the DOJ’s request for the holding of a competency hearing. Yet, the BIA still did not take the time and care necessary to properly apply their own precedent on how to conduct mental competency hearings consistent with due process!

PWS

01-04-18

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.

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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