THE BIGGEST LOSER: US Judge In MD Also Slams Travel Ban 3.0 (Again)! No Matter What Ultimately Happens, Trump & Our Country Are The Big Losers From His Determination To Be Petty & Discriminatory!

https://www.washingtonpost.com/world/national-security/second-judge-rules-against-latest-travel-ban-saying-trumps-own-words-show-it-was-aimed-at-muslims/2017/10/18/5ecdaa44-b3ed-11e7-9e58-e6288544af98_story.html

Matt Zapotosky reports for the Washington Post:

“A federal judge in Maryland early Wednesday issued a second halt on the latest version of President Trump’s travel ban, asserting that the president’s own comments on the campaign trail and on Twitter convinced him that the directive was akin to an unconstitutional Muslim ban.

U.S. District Judge Theodore D. Chuang issued a somewhat less complete halt on the ban than his counterpart in Hawaii did a day earlier, blocking the administration from enforcing the directive only on those who lacked a “bona fide” relationship with a person or entity in the United States, such as family members or some type of professional or other engagement in the United States.

But in some ways, Chuang’s ruling was more personally cutting to Trump, as he said the president’s own words cast his latest attempt to impose a travel blockade as the “inextricable re-animation of the twice-enjoined Muslim ban.”

Omar Jadwat, who directs of the ACLU’s Immigrants’ Rights Project and represented those suing in Maryland over the ban, said: “Like the two versions before it, President Trump’s latest travel ban is still a Muslim ban at its core. And like the two before it, this one is going down to defeat in the courts.”

The third iteration of Trump’s travel ban had been set to go fully into effect early Wednesday, barring various types of travelers from Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela. Even before Chuang’s ruling, though, a federal judge in Hawaii stopped it — at least temporarily — for all of the countries except North Korea and Venezuela.

That judge, Derrick K. Watson, blocked the administration from enforcing the measure on anyone from the six countries, not just those with a “bona fide” U.S. tie. But his ruling did not address whether Trump’s intent in imposing the directive was to discriminate against Muslims. He said the president had merely exceeded the authority Congress had given him in immigration law.

The Justice Department already had vowed to appeal Watson’s ruling, which the White House said “undercuts the President’s efforts to keep the American people safe and enforce minimum security standards for entry into the United States.” Both Watson’s temporary restraining order and Chuang’s preliminary injunction are also interim measures, meant to maintain the status quo as the parties continue to argue the case.

The administration had cast the new measure as one that was necessary for national security, implemented only after officials conducted an extensive review of the information they needed to vet those coming to the United States. Those countries that were either unwilling or unable to produce such information even after negotiation, officials have said, were included on the banned list.

“These restrictions are vital to ensuring that foreign nations comply with the minimum security standards required for the integrity of our immigration system and the security of our Nation,” the White House said after Watson’s ruling. “We are therefore confident that the Judiciary will ultimately uphold the President’s lawful and necessary action and swiftly restore its vital protections for the safety of the American people.”

Like Watson’s order, Chuang’s 91-page ruling also found Trump had exceeded his authority under immigration law, but only partially.

The order — which has “no specified end date and no requirement of renewal” — violated a nondiscrimination provision in the law in that it blocked immigrants to the United States based on their nationality, Chuang wrote.

But Chuang said he could not determine, as Watson did, that Trump had violated a different part of federal immigration law requiring him to find entry of certain nonimmigrant travelers would be “detrimental” to U.S. interests before blocking them.

Chuang instead based much of his ruling on his assessment that Trump intended to ban Muslims, and thus his order had run afoul of the Establishment Clause of the Constitution. When Trump was a presidential candidate in December 2015, Chuang wrote, he had promised a “complete shutdown of Muslims entering the United States,” and all of his comments since then seemed to indicate his various travel bans were meant to fulfill that promise.

After his second ban was blocked, Chuang wrote, Trump described the measure as a “watered down version” of his initial measure, adding, “we ought go back to the first one and go all the way, which is what I wanted to do in the first place.” The president had then revoked and replaced his first travel ban, which had also been held up in court.

In August, with courts still weighing the second version, Chuang noted that Trump “endorsed what appears to be an apocryphal story involving General John J. Pershing and a purported massacre of Muslims with bullets dipped in a pig’s blood, advising people to ‘study what General Pershing . . . did to terrorists when caught.’ ”

In September, as authorities worked on a new directive, Trump wrote on Twitter “the travel ban into the United States should be far larger, tougher and more specific — but stupidly, that would not be politically correct!”

Chuang had pressed challengers at a hearing this week on what the government would have to do to make the new ban legal, and he noted in his ruling that the new directive had changed from the previous iterations. The government, for example, had undertaken a review process before inking the new measure, and had added two non-Muslim majority countries to the banned list.

But Chuang wrote that he was unmoved that government had simply relied on the results of their review, and instead believed they made “certain subjective determinations that resulted in a disproportionate impact on majority-Muslim nations.” He wrote that the government offered “no evidence, even in the form of classified information submitted to the Court, showing an intelligence-based terrorism threat justifying a ban on entire nationalities,” and asserted that even the new measure “generally resembles President Trump’s earlier description of the Muslim ban.”

“The ‘initial’ announcement of the Muslim ban, offered repeatedly and explicitly through President Trump’s own statements, forcefully and persuasively expressed his purpose in unequivocal terms,” Chuang wrote.

The suits in federal court in Maryland had been brought by 23 advocacy groups and seven people who said they would be negatively impacted by the new ban.”

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Yes, the Trump Administration might ultimately prevail on appeal on this one. But, that won’t change the fact that they are “losers.” And, a country that chooses biased, incompetent, and petty leadership like this is also a “Big Loser.”

PWS

10-18-17

PARTY OF INFAMY AND GROSS INDECENCY: GOP’S WHITE NATIONALIST WING SEEKS TO DESTROY U.S. ASYLUM LAW, SCREW THE MOST VULNERABLE – Want To Turn America Into A “Rogue Nation” That Trashes Human Rights! – THEY MUST BE EXPOSED AND STOPPED!

http://www.motherjones.com/politics/2017/10/trumps-immigration-proposal-could-make-it-radically-harder-to-get-asylum/

Noah Lanard reports for Mother Jones:

“When people arrive at the border seeking asylum from persecution, the United States gives them the benefit of the doubt. As long as they can show there’s a “significant possibility” that they deserve protection, they’re allowed to stay and make their case to an immigration judge. President Donald Trump and Republicans in Congress want to change that.

On Sunday, the Trump administration demanded that Congress overhaul the US asylum system as part of any legislation to protect the nearly 700,000 undocumented immigrants known as Dreamers from deportation. The White House’s asylum proposal, laid out in nine bullet-pointed items as part of the broader immigration plan, appears to be modeled on the Asylum Reform and Border Protection Act, a bill that Republicans on the House Judiciary Committee approved in July. The bill, which has not been passed by the full House, would make it easier for the Department of Homeland Security to quickly reject asylum claims and force most asylum seekers to remain in detention while their cases are decided. The overall effect would be to transform a system for protecting persecuted people, created in the wake of World War II, into a much more adversarial process.  

At a hearing in July, Rep. Zoe Lofgren (D-Calif.) warned that the GOP proposal would “all but destroy the US asylum system.” Now Trump is trying to fold those changes into a deal to protect the Dreamers—undocumented immigrants who came to the country as children—who were previously covered by Barack Obama’s Deferred Action for Childhood Arrivals program.

Eleanor Acer, an expert on refugees at the advocacy group Human Rights First, saidin a statement Monday that Trump’s demands will “block those fleeing persecution and violence from even applying for asylum, and punish those who seek protection by preventing their release from immigration detention facilities and jails.”

But Republicans like Rep. Bob Goodlatte (R-Va.) argue that asylum reform is needed to address “pervasive” fraud, such as false claims of persecution. Asylum claims from the “Northern Triangle” countries of Guatemala, El Salvador, and Honduras have been a major focus for Republicans. Between 2013 and 2015, there were more asylum claims from the Northern Triangle, which has been terrorized by MS-13 and other gangs, than in the previous 15 years combined. A 2015 report from the Government Accountability Office found that the United States has “limited capabilities to detect asylum fraud.” But the scope of the problem is not known. Leah Chavla, a program officer at the Women’s Refugee Commission, says going after fraud is misguided in light of the many checks and balances that are already in place. 

The real “fraudsters” here are the GOP restrictionists, led by folks like Goodlatte, Miller, and Sessions, trying to fob off their knowingly false and contrived narrative on America. Shame!

Second, the current system intentionally denies lawyers to the respondents in detention in obscure locations along the Southern Border, specifically selected to make it difficult for individuals to exercise their rights. Raising the standards would virtually guarantee rejection of all such asylum seekers without any hearing at all. The standard for having asylum granted is supposed to be a generous “well-founded fear” (in other words, a 10% chance or a “reasonable chance”). In fact, however, DHS and EOIR often fail to honor the existing legal standards. Forcing unrepresented individuals in detention with no chance to gather evidence to establish that it is “more likely than not” that they would be granted asylum is a ridiculous travesty of justice.

Third, access to lawyers, not detention, is the most cost-effective way to secure appearance at Immigration Court hearings. Individuals who are able to obtain lawyers, in other words those who actually understand what is happening, have a relatively low rate of “failure to appear.” In fact, a long-term study by the American Immigration Council shows that 95% of minors represented by counsel appear for their hearings as opposed to approximately 67% for those who are unrepresented. See,e.g., https://www.americanimmigrationcouncil.org/research/taking-attendance-new-data-finds-majority-children-appear-immigration-court

Rather than curtailment of rights or expensive and inhumane detention, the best way of insure that all asylum applicants appear for their scheduled hearings and receive full due process would be to insure that the hearings take place in areas with adequate supplies of pro bono and “low bono” counsel and that hearings are scheduled in a predictable manner that does not intentionally outstrip the capabilities of the pro bono bar.

Fourth, a rational response to fraud concerns would be building better fraud detection programs within DHS, rather than denying vulnerable individuals their statutory and constitutional rights. What would a better system look like:  more traditional law enforcement tools, like undercover operations, use of informants to infiltrate smuggling operations, and much better intelligence on the operations of human trafficking rings. And, there’s plenty of resources to do it. DHS just lacks the ability and/or the motivation. Many of the resources now wasted on “gonzo” interior enforcement and mindless detention — sacking up janitors and maids for deportation and detaining rape victims applying for asylum — could be “redeployed” to meaningful, although more challenging, law enforcement activities aimed at rationally addressing the fraud problem rather than using it as a bogus excuse to harm the vulnerable.

Fifth, Goodlatte’s whole premise of fraud among Southern Border asylum applications is highly illogical. Most of the Southern Border asylum claims involve some variant of so-called “particular social groups” or “PSGs,” But, the entire immigration adjudication system at all levels has traditionally been biased against just such claims. and, it is particularly biased against such claims from Central America. PSG claims from Central America receive “strict scrutiny’ at every level of the asylum system! No fraudster in his or her right mind would go to the trouble of “dummying up” a PSG claim which will likely be rejected. No, if you’re going to the trouble of committing fraud, you’d fabricate a “political or religious activist or supporter claim”  of the type that are much more routinely granted across the board.

Don’t let Trump, Miller, Sessions, Goodlatte, and their band of shameless GOP xenophobes get away with destroying our precious asylum system! Resist now! Resist forever! Stand up for Due Process, or eventually YOU won’t any at all! Some Dude once said “as you did it to one of the least of these my brothers, you did it to me.” While arrogant folks like the restrictionists obviously don’t believe that, it’s still good advice.

PWS

10-10-17

 

AMERICA’S KANGAROO COURT SYSTEM: EOIR HELPING DHS COME UP WITH WAYS TO DUMP ON UNACCOMPANIED KIDS! — THE “THE FACADE OF JUSTICE AT JUSTICE” CONTINUES WHILE CONGRESS AND ARTICLE III COURTS ABDICATE RESPONSIBILITY FOR A SYSTEM THAT MOCKS DUE PROCESS AND THE CONSTITUTION! — CNN’S Tal Kopan With The Scoop!

http://www.cnn.com/2017/10/11/politics/trump-administration-dhs-immigration-policies/index.html

Tal reports:

“Washington (CNN)Even as the Trump administration is asking Congress to approve a tough overhaul of the nation’s immigration laws, the Department of Homeland Security is also quietly exploring ways it could transform the US immigration system on its own.

The department has been examining a range of subtle modifications to immigration policies that could have major consequences, including limiting protections for unaccompanied minors who come to the US illegally, expanding the use of speedy deportation proceedings, and tightening visa programs in ways that could limit legal immigration to the US, according to multiple sources familiar with the plans.
None of the policies being explored are finalized, according to the sources, and are in various stages of development. Any of them could change or fall by the wayside. Some of them are also included at least in part in the wish list of immigration priorities that President Donald Trump sent to Congress this week, and it’s unclear whether the administration will wait to see the results of negotiations over the future of the Deferred Action for Childhood Arrivals (DACA) program that President Donald Trump has chosen to end.

Still, the proposals under consideration illustrate the extent to which the administration could attempt to dramatically change immigration in the US through unilateral executive action.
“Do you think Obama did a lot? That’s my answer,” said one former DHS official when asked how transformative the change could be. “They could do quite a bit.”
DACA itself was an example of how former President Barack Obama, frustrated with congressional inaction, sought to use executive authority to take action on immigration, putting in place the program to protect young undocumented immigrations brought to the US as children from deportation in 2012.
But the administration is now exploring rolling back more Obama-era policies, and changing even older systems.
DHS did not respond to a request for comment about the policies being explored or its process.
Targeting protections for unaccompanied minors
One effort underway is exploring what can be done about unaccompanied children (UACs), a category of undocumented immigrants who are caught illegally crossing the border into the US, are under age 18, and are not accompanied or met by a parent or guardian in the US. Those UACs, by law and legal settlement, are handed over to the Department of Health and Human Services for settling in the US, given protections from expedited removal proceedings and given special opportunities to pursue asylum cases in the US.
DHS and the Department of Justice have been exploring options to tighten the protections for UACs, including no longer considering them UACs if they’re reunited with parents or guardians in the US by HHS or once they turn 18.

In a previously unreported memo, obtained by CNN, the general counsel of the Executive Office of Immigration Review, which manages the nation’s immigration courts, wrote in a legal opinion that the administration would be able to decide a UAC was no longer eligible for protections — a sea change in the way the 2008 law granting those protections has been interpreted.
The Trump administration has portrayed the UAC protections as a loophole in the law that can be exploited by gangs, though experts have testified before Congress that the minors under the program are more likely to be victimized by gangs in the US due to a lack of a support network than to be gang members. The administration also has sought to crack down on parents who pay smugglers to bring their children into the US illegally, even to escape dangerous situations in Central America.
The White House also asked Congress to amend the 2008 law to restrict UAC protections.
In previously unreported comments made last month at a security conference in Washington, acting Immigration and Customs Enforcement Director Tom Homan said that ICE is actively looking at the adults HHS places UACs with, and if they are in the US illegally, they will be processed for deportation — and if a smuggler was paid, they could be prosecuted for human trafficking.
DOJ touts effects of surge of immigration judges sent to border
DOJ touts effects of surge of immigration judges sent to border
“You cannot hide in the shadows, you can’t be an illegal alien in the United States, have your undocumented child smuggled at the hands of a criminal organization, and stay in the shadows,” Homan said. “We’re going to put the parents in proceedings, immigration proceedings, at a minimum. … Is that cruel? I don’t think so. Because if that child is really escaping fear and persecution, he’s going to stand in front of an immigration judge to plead his case, his parents should be standing shoulder to shoulder with him. I call that parenting.”
DHS is also continuing to weigh its options to expand the use of expedited removal more generally — a speedier process of deportation that bypasses a lengthy court process in particular cases — as authorized by Trump’s January executive order on immigration.
Legal immigration tightening
Other efforts in the works include ways to tighten legal avenues to come to the US.
Two policies being looked at are the subject of litigation in the DC Circuit court — work authorizations for spouses of high-skilled visa holders and an expansion of a program that allows STEM students to stay in the US an extra two years for training.
Both policies were challenged in the courts, and now the administration is considering whether to roll them back.
On the spousal authorizations, DHS told the court as much in a filing last month, asking for extra time for the DHS review to finish.
That filing points to a DHS review of “all” of the agency’s immigration policies, citing the President’s Executive Order to “buy American and hire American.”
“Executive Order 13,788 is an intervening event necessitating careful, considered review of all of DHS’s immigration policies to ensure that the interests of US workers are being protected,” the attorneys wrote, citing the order’s instructions to create new rules, if necessary, “to protect the interests of United States workers in the administration of our immigration system.”
Trump admin quietly made asylum more difficult in the US
Trump admin quietly made asylum more difficult in the US
DHS has also moved to tighten asylum claim credibility thresholds, and is exploring asking Congress for more authority to do so. Another target is reportedly cultural exchange visas, which according to The Wall Street Journal are also under scrutiny after the “hire American” order.
Further unilateral moves wouldn’t even require policy changes, immigration attorneys fear. Attorneys who represent immigration clients fear that simply by slowing down the visa process, DHS could substantially decrease the number of immigrants admitted to the United States. US Citizenship and Immigration Services announced this summer it would begin requiring interviews for all green card applicants on employment and refugee grounds, and that it would roll out required interviews for other categories over time, adding a substantial and potentially lengthy hurdle to achieving legal permanent residency.
“If the wait time for naturalizations increases by three months, USCIS can naturalize 25% fewer people per year, which would mean millions of people over a four-year period,” said Leon Fresco, an immigration attorney and former Obama administration DOJ official. “Even without a policy change, the administration (can accomplish) dramatic reductions to legal immigration through increases in processing times and taking a hawkish approach to finding reasons for denials of immigration applications.”
DHS pointed CNN to statistics showing no increase in the rate of denials of immigration applications, though the backlog of pending applications has grown steadily over the past two years.
Internal jockeying
One-quarter of DACA renewals not in on deadline day
One-quarter of DACA renewals not in on deadline day
Sources familiar with the inner workings of DHS describe an environment where political appointees and policy staff with strongly held opinions circulate ideas that sometimes reach the press before front office and secretarial staff are even aware of the discussions.
While political appointees and career officials are not described as butting heads, some of policy ideas do end up moderated by career employees on practical grounds. One source also described some employees of USCIS, which administers DACA, as getting emotional when the plan was made to end the program.
“Once it gets to a senior level, there are pretty robust discussions,” another source familiar said. “And once it gets to that level there are folks with ideas, and then folks who have been around for a while who say, ‘That won’t work.'”
Those competing ideas are then ultimately decided on by the secretary and high-level decision makers, though sources say political appointees are sometimes in a position to have influence over what information flows to the front office and top officials.
“The secretary and the decision makers end up with that (dynamic),” the source said.”

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Immigration “Courts” run and controlled by Political Enforcement Officials and actively engaged in looking for ways to diminish the rights of individuals coming before them are not “real courts” and are not capable for delivering fair, unbiased, and impartial justice in accordance with the Due Process Clause of the U.S. Constitution. This kangaroo court system, operating under false premises, is unconstitutional (in addition to be incompetently administered)! 

Will the Article III Courts ever do their duty, put this corrupt and unlawful system out of its misery, and restore at least some semblance of due process and justice for immigrants? Or, will they “go along to get along” and thus make themselves part of one of the most shameful charades of justice In American Legal History?

7TH CIR. “SCHOOLS” BIA IN BIA’S OWN AUTHORITY TO GRANT WAIVER — ARTICLE III THWARTS BIA’S ATTEMPT TO “GET TO NO!” — Matter of KHAN, 26 I&N Dec. 797 (BIA 2016) BLOWN AWAY — BAEZ-SANCHEZ V. SESSIONS! — There’s Is Now A “Circuit Split” With The 3rd Cir., Which “Went Along To Get Along” With The BIA!

rssExec.pl

Baez-Sanchez v. Sessions, 7th Cir., 10-06-17 (published)

PANEL:  Before BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.

OPINION BY: Judge EASTERBROOK

KEY QUOTE:

LDG addressed the question whether the Attorney Gen‐ eral has the authority to waive the inadmissibility of an alien seeking a U visa. We assumed that, in removal proceedings, IJs may exercise all of the Attorney General’s discretionary powers over immigration. The panel did not justify that as‐ sumption, because the parties had not doubted its correct‐ ness. But after LDG the Board concluded that the assumption is mistaken. In re Khan, 26 I&N Dec. 797 (2016), holds that IJs have only such powers as have been delegated and that the power to waive an alien’s inadmissibility during proceedings seeking U visas is not among them. The Third Circuit has agreed with that conclusion. Sunday v. Attorney General, 832 F.3d 211 (3d Cir. 2016). We must decide in this case whether to follow Sunday and Khan.
Delegation from the Attorney General to immigration judges is a matter of regulation, and arguably pertinent reg‐ ulations are scattered through Title 8 of the Code of Federal Regulations. The BIA in Khan observed, correctly, that the panel in LDG had not mentioned 8 C.F.R. §§235.2(d), 1235.2(d), which omit any delegation to IJs of the power to waive an alien’s admissibility. And that’s true, for those regu‐ lations concern the powers of District Directors rather than the powers of IJs. The principal regulation that does cover IJs’ authority is 8 C.F.R. §1003.10, which provides in part:
(a) Appointment. The immigration judges are attorneys whom the Attorney General appoints as administrative judges within the Office of the Chief Immigration Judge to conduct specified classes of proceedings, including hearings under section 240 of the [Immigration and Nationality] Act. Immigration judges shall act as the Attorney General’s delegates in the cases that come be‐ fore them.
(b) Powers and duties. In conducting hearings under section 240 of the Act and such other proceedings the Attorney General may assign to them, immigration judges shall exercise the powers and duties delegated to them by the Act and by the Attorney General through regulation. In deciding the individual cases be‐ fore 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 au‐ thorities under the Act and regulations that is appropriate and necessary for the disposition of such cases. Immigration judges shall administer oaths, receive evidence, and interrogate, exam‐ ine, and cross‐examine aliens and any witnesses. Subject to §§ 1003.35 and 1287.4 of this chapter, they may issue administra‐ tive subpoenas for the attendance of witnesses and the presenta‐ tion of evidence. In all cases, immigration judges shall seek to re‐ solve the questions before them in a timely and impartial man‐ ner consistent with the Act and regulations.

The Attorney General’s brief in this court observes that §1003.10(b) does not delegate to IJs any power to waive an alien’s inadmissibility. Sure enough, it doesn’t. But §1003.10(a) does. It says that “[i]mmigration judges shall act as the Attorney General’s delegates in the cases that come before them.” This sounds like a declaration that IJs may ex‐ ercise all of the Attorney General’s powers “in the cases that come before them”, unless some other regulation limits that general delegation. The BIA in Khan did not identify any provision that subtracts from the delegation in §1003.10(a). Nor did the Third Circuit in Sunday. Indeed, neither the BIA nor the Third Circuit cited §1003.10(a). We therefore adhere to the view of LDG that IJs may exercise the Attorney Gen‐ eral’s powers over immigration.”

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In the end, of course, the respondent didn’t win much. The 7th Circuit remanded the case to the BIA to “exercise Chevron authority” on the question of whether the Attorney General himself has been stripped of authority to grant these waivers by the legislation that established the DHS as a separate entity.

But, we already know the answer to that question. The BIA has no desire to exercise jurisdiction over this waiver. Indeed, to do so, could turn out to be “career threatening” if you work for notorious xenophobe Jeff Sessions.

Moreover, even before the advent of Sessions, the BIA abandoned any pretense of  impartiality in exercising Chevron jurisdiction. The BIA usually looks for the interpretation least favorable to the respondent, that of the DHS, and adopts that as it “preferred interpretation.”  To do otherwise could hamper any Administration’s efforts to achieve enforcement objectives, thereby endangering the BIA as an institution. Moreover, agreeing with the private litigant in a published decision could undermine the efforts of the DOJ’s Office of Immigration Litigation to facilitate successful defense of petitions for review removal orders in the Article III Courts.

If this sounds like a strange scenario for a supposedly fair, impartial, and unbiased “court” to adopt, that’s because it is! The BIA is there primarily to slap a “patina of due process” on removal orders without really interfering with the DHS’s “removal railroad.” And that’s useful because of Chevron and the ability of  OIL and the DOJ to disingenuously claim that respondents receive “full due process” from the Immigration Courts and the BIA and that Article III Courts, therefore, ought not to worry themselves about the results. And, in a surprising number of cases, the Article IIIs oblige. They don’t want to be stuck having to redo tens of thousands of mass produced BIA appeals.

So, what’s not to like about this system? The Attorney General gets his wholly owned courts to churn out removal orders that look fair (but really aren’t in many cases). The BIA Appellate Judges get to keep their high paying jobs in the Falls Church Tower without having to personally “face up” to the poor folks they are railroading out of the country to places where their lives and futures are in danger. OIL gets to buttress its narrow readings of immigration statutes against immigrants with so-called “court decisions” from the BIA that really aren’t really decisions by independent decision makers. The DHS gets lots of removal orders to keep the “Enforcer In Chief” happy, plus they gain leverage to use against any U.S. Immigration Judge who keeps ruling in favor of respondents. “We’ll just take you to the BIA and get it reversed.”  The Article IIIs get to largely avoid moral or legal responsibility for this facade of fairness and due process. Out of sight (which folks are when they get removed), out of mind. We’re just “deferring” to the BIA. Don’t blame us! And, don’t forget Congress! They get to pretend like none of this is happening and claim they are “solving” the problem just by throwing a few more positions and a little more money at EOIR. No need for meaningful oversight into the charade of due process in the U.S. Immigration Courts. And, there are a few guys over on the GOP side of the Hill who hate immigrants and despise due process as much as Sessions does. They undoubtedly see this as a model for the entire U.S. justice system, or better yet, have lots of ideas on how to avoid the Immigration Courts entirely and make the “removal railway” run even faster.

The only folks who aren’t served are the poor folks looking to the U.S. Immigration Courts as courts of last resort to save their lives, preserve their futures, or at least listen sympathetically to their case for remaining. Some of these poor fools actually believe all they stuff about Americans being fair and humane. Those guys were really discombobulated when I had to tell them that while I had absolutely no doubt that some very ”bad things” were going to happen to them upon return, that just doesn’t matter to the U.S. legal system. While I sometimes had the unenviable task of “telling it like it is,” the BIA, the DOJ, and the Federal Courts really couldn’t care less if migrants end up getting killed, raped, or maimed upon return or if their families in the U.S. have to go on welfare. There’s just no place for them in our system.

The other folks who might not come out so well are the rest of America — the non-xenophobes. Most Americans aren’t actually xenophobes in the Trump-Sessions-MIller-Bannon-GOP Restrictionist tradition. While those of us who know what’s happening might be powerless to stop it, we can document it for future generations. We’re making a record.

In the age of information, none of this is going away or going to be swept under an “eternal carpet.” Someday there will be a “day or recokening” for our descendants, just like the one for those of us whose current privilege was built on enslaved African American labor and its many benefits as well as by a century of “Jim Crow” laws which siphoned off African American Citizens’ Constitutional rights and human dignity and conferred them instead on undeserving white folks in both the South and the North.

We have certainly demonstrated that we can be “tone deaf” to both the motivations and the actual effects of our current broken immigration policies. Indeed, there can be no better evidence of that than the election of Trump and empowerment of his xenophobe racist cronies like Sessions and Miller.

But, in the end, we won’t escape the judgement of history, nor will they. The ugliness of our current immigration policies and practices, and the “false debate” about them (there, in fact is no legitimate case for the “restrictionist agenda” — just a racial and cultural one), might be buried in a barrage of alt-right media and “Sessions bogus law and fact free pronouncements.” But, someday, those are going to look just as “legit’ as Conferederate broadsides or the racially hateful rhetoric of Jefferson Davis do today outside the membership of various hate groups and the alt-right.

PWS

10-07-17

BRINGING OUR CONSTITUTION BACK TO LIFE — AN IMPORTANT FIRST STEP: “JAYAPAL, SMITH INTRODUCE LEGISLATION TO REFORM IMMIGRATION DETENTION SYSTEM!”

https://www.theindianpanorama.news/unitedstates/jayapal-smith-introduce-legislation-reform-immigration-detention-system/

From Indian Panorama:

“WASHINGTON (TIP): Congressman Adam Smith (WA-09) and Indian American Congresswoman Pramila Jayapal (WA-07) introduced, on Oct 3, the Dignity for Detained Immigrants Act, legislation to reform the systemic problems in immigration detention system. This bill will end the use of private facilities and repeal mandatory detention, while restoring due process, oversight, accountability, and transparency to the immigration detention system.

“The high moral cost of our inhumane immigration detention system is reprehensible. Large, private corporations operating detention centers are profiting off the suffering of men, women and children. We need an overhaul,” said Congresswoman Jayapal. “It’s clear that the Trump administration is dismantling the few protections in place for detained immigrants even as he ramps up enforcement against parents and vulnerable populations. This bill addresses the most egregious problems with our immigration detention system. It’s Congress’ responsibility to step up and pass this bill.”

“We must fix the injustices in our broken immigration detention system,” said Congressman Adam Smith. “As the Trump administration continues to push a misguided and dangerous immigration agenda, we need to ensure fair treatment and due process for immigrants and refugees faced with detention. This legislation will address some of the worst failings of our immigration policy, and restore integrity and humanity to immigration proceedings.”

In addition to repealing mandatory detention, a policy that often results in arbitrary and indefinite detention, the legislation creates a meaningful inspection process at detention facilities to ensure they meet the government’s own standards. The bill requires the Department of Homeland Security (DHS) to establish legally enforceable civil detention standards in line with those adopted by the American Bar Association. With disturbing track records of abuse and neglect, DHS has a responsibility to ensure that facilities are held accountable for the humane treatment of those awaiting immigration proceedings.

Individuals held in immigration detention system are subject to civil law, but are often held in conditions identical to prisons. In many cases, detained people are simply awaiting their day in court. To correct the persistent failures of due process, the legislation requires the government to show probable cause to detain people, and implements a special rule for primary caregivers and vulnerable populations, including pregnant women and people with serious medical and mental health issues.”

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

Since these guys are Democrats, their bill is obviously DOA. But, it is important to start “laying down markers” — even symbolic ones — for the future.

As a  former administrative judge who was required to administer and enforce mandatory detention (under DOJ rules, we were not permitted to consider the constitutionality of the mandatory detention statutes and the DHS implementing regulations) for the better part of two decades, I can assure you that it was a totally unnecessary, grossly wasteful, and stunningly unhumane blot on our national conscience and our reputation as a nation that adheres to principles of simple human decency.

There is absolutely no reason why U.S. Imigration Judges cannot determine who needs to be detained as a flight risk or a danger to the community and who doesn’t! But, for that to happen, we also need an independent Article I U.S. Immigration Court not beholden to the Attorney General (particularly one like Jeff “Gonzo Apocalypto” Sessions with a perverse ignorance of Constitutional protections, an overwhelming bias against immigrants, and a record largely devoid of notable acts of human decency.)

Every study conducted during the last Administration, including DHS’s own Advisory Committee, found serious problems and inadequate conditions in private detention and recommended that it be eliminated. Former Attorney General Loretta Lynch actually announced an end to private detention for criminals. Yet, remarkably and unconscionably, the response of the Trump Administration, led by Gonzo Apocalypto, was to double down and expand the use of expensive, inhumane private detention for convicted criminals and for “civil” immigration detainees whose sole “crime” is to seek justice from the courts in America.

Thanks much to Nolan Rappaport for sending this in!

PWS

10-06-17

 

LA TIMES: SUPREMES MUST DELIVER ON PROMISE OF DUE PROCESS FOR IMMIGRANTS! — “[T]oo often immigrants haven’t received fair treatment from the courts.“ — Is Justice Gorsuch About To Make Good On His Oath To Uphold The Constitution By Standing Up For Due Process For Migrants?

http://www.latimes.com/opinion/editorials/la-ed-scotus-immigrants-20171005-story.html

“This week the Supreme Court heard arguments in two cases that pose the question of whether noncitizens should be afforded at least some of the due process of law that Americans take for granted. The answer in both cases should be a resounding yes.

On Monday, the justices considered whether a Filipino legal immigrant convicted of two home burglaries in California could be deported even if the wording of the federal law used to determine whether he could be removed from the U.S. was so unconstitutionally vague that it could not be enforced in a criminal court. On Tuesday, lawyers for a group of noncitizens detained by immigration authorities asked the court to rule that detainees are entitled to a bond hearing after six months of confinement.

Although the circumstances and legal issues in the two cases differ, the common denominator is the importance of affording due process to noncitizens.

James Garcia Dimaya, who was admitted to the U.S. as a lawful permanent resident at the age of 13, pleaded no contest in 2007 and 2009 to two charges of residential burglary. Concluding that one of the convictions was an “aggravated felony,” the Board of Immigration Appeals agreed with the Homeland Security Department that Dimaya should be deported.

The United States is often called “a nation of immigrants.” But too often immigrants haven’t received fair treatment from the courts.
But the U.S. 9th Circuit Court of Appeals overturned that decision. It said the definition of “aggravated felony” in immigration law incorporated a definition of “crime of violence” that was similar to language in a different law the Supreme Court had concluded in 2015 was too vague to be constitutional.

At Monday’s oral argument, Deputy Solicitor General Edwin S. Kneedler said the law at issue in Dimaya’s case didn’t suffer from the same vagueness problem. But even if it did, Kneedler told the court, “immigration is distinctive” and deportation “is not punishment for [a] past offense.” In other words, even if the law was too vague to be used for the purposes of criminal punishment, it could still be used for the purposes of deportation.

This brought a devastating rejoinder from Justice Neil Gorsuch. “I can easily imagine a misdemeanant who may be convicted of a crime for which the sentence is six months in jail or a $100 fine, and he wouldn’t trade places in the world for someone who is deported,” Gorsuch said. He questioned the soundness of the “line that we’ve drawn in the past” between criminal punishment and civil penalties such as deportation.

We agree. If the court decides that the wording of the law that triggered Dimaya’s removal order was unconstitutionally vague, he should be entitled to relief. A law that is too vague to justify a criminal sentence shouldn’t be a good enough reason to expel someone from the country.

 

In the case argued Tuesday, a class-action lawsuit, noncitizens detained by immigration authorities asked the court to rule that they should receive bond hearings if their detention lasts for six months. The lead plaintiff is Alejandro Rodriguez, who grew up in Los Angeles as a lawful permanent resident. After Rodriguez was sentenced to five years’ probation on a misdemeanor drug possession conviction, he was detained and targeted for deportation to Mexico, the country he had left as a baby two decades earlier. He remained locked up as his legal battle dragged on for years.

The 9th Circuit ruled not only that detainees were entitled to bond hearings but also that they should be released unless the government could demonstrate by clear and convincing evidence that they were dangerous or a flight risk. But on Tuesday Deputy Solicitor General Malcolm Stewart told the court that detainees “have no such right.” He later said that insofar as foreigners arriving in the U.S. are concerned, the Supreme Court has made it clear that “whatever process Congress chooses to give is due process.”

Yet in recent years the court has recognized not only that noncitizens have constitutional rights but that deportation can be a catastrophic experience. In June, the court overturned the guilty plea of an immigrant from South Korea because his lawyer wrongly told him he wouldn’t be deported as a consequence of a plea bargain.

The United States is often called “a nation of immigrants.” But too often immigrants haven’t received fair treatment from the courts. The cases argued this week offer the Supreme Court an opportunity to rectify that injustice.”

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”Mouthing” due process for migrants is easy; the BIA does it all the time — so does EOIR.  But, actually providing due process for migrants is something totally different. Most courts, and particulately the BIA, routinely sign off on unfair procedures and interpretations that would never be considered “Due Process” in any other context.

I’m “cautiously heartened” by Justice Gorsuch’s apparent realization of the potentially catastrophic real human consequences of removal (often blithely ignored or downplayed by the BIA, Sessions, restrictionists, and Federal Courts) and recognition that the “civil-criminal” distinction is totally bogus — designed to sweep Constitutional violations under the rug — and needs to be eliminated.

As an Immigration Judge, when I was assigned to the “Detained Docket” in Arlington, I had case after case of green card holders who had minor crimes for which they paid fines or got suspended sentences — in other words, hadn’t spent a day in jail — “mandatorily detained” for months, sometimes years, pending resolution of their “civil” immigration cases. In plain language, they were sentenced to indefinite imprisonment but without the protections that a criminal defendant would receive! They, their families, and their employers were incredulous that this could be happening in the United States of America. I simply could not explain it in a way that made sense.

Talk is one thing, action quote another. But, if Justice Gorsuch folllows through on his apparent inclination to make Due Process protections for migrants “a reality” rather than a “false promise,” Constitutional protections will be enhanced for every American! We are no better than how we treat the least among us.

Ultimately, full delivery on the promise of Constitutional Due Process for everyone in America, including migrants, will require the creation of an independent Article I U.S. Immigraton Court. The current “captive system” — unwilling and unable to stand up for true Due Process for migrants — is a facade behind which routine denials of Constitutional Due Process take place. As Americans, we should demand better for the most vulnerable among us.

PWS

10-06-17

DUE PROCESS IN ACTION: WHAT HAPPENS WHEN AN INDEPENDENT ARTICLE III COURT ACTS TO ENFORCE CONSTITUTIONAL RIGHTS BEING IGNORED BY DHS & DOJ: Here’s One Family’s “Human Story” About How the 9th Circuit’s Decision In Jennings v. Rodriguez Saved Them (And Also Us)! — Bond Hearings Can Mean EVERYTHING To A Detained Immigrant & Family!

http://lawprofessors.typepad.com/immigration/2017/10/how-a-bond-hearing-saved-me-from-deportation-by-mark-hwang.html

From ImmigratonProf Blog:

The ACLU blog has an interesting post on Jennings v. Rodriguez, the immigrant detention case argued in the Supreme Court today.

How A Bond Hearing Saved Me From Deportation By Mark Hwang

Today the Supreme Court will hear Jennings v. Rodriguez, a case that will decide the fate of thousands of men and women locked up in immigration prisons across the country. The federal government is challenging a 2015 Ninth Circuit ruling, in which the American Civil Liberties Union secured the right to a bond hearing for people in deportation proceedings after six months of detention.

Bond hearings allow people to go before a judge so that he or she can decide if imprisonment is necessary, weighing factors like public safety and flight risk. It’s basic due process. Bond hearings are a vital check on our country’s rapidly-expanding immigration system. I’ve seen their power firsthand, because not too long ago, I was one of the people locked up.

In February 2013, I was driving with my one-year-old son when we were stopped by an immigration officer. He said that I hadn’t used my turn signal when changing lanes and asked to see my identification. When he came back to the car, he asked if I had ever been convicted of a crime.

I answered truthfully. More than a decade ago, when I was in my early 20s, I was convicted of marijuana possession with intent to sell. I had served a short sentence and had remained out of trouble since. Still the officers said that I needed to go with them and that I would have to explain “my situation” to a judge. I was shackled and put in the back of the car while one of the officers got into my car to drive my son home.

I thought there had to be some kind of mistake. Around two weeks earlier, my wife Sarah had given birth to our identical twin daughters. My life at the time was full, growing, and completely rooted in the United States.

When I was booked into custody, an officer told me that my drug conviction meant that my detention was “mandatory.” Nobody had ever told me that pleading guilty on a drug charge could have implications for my immigration status. I petitioned a court to vacate the marijuana conviction, but because I was locked up, I couldn’t appear at the hearing. The request was denied and I had no idea for how long I would be locked up, leaving my wife to run our business and care for our children alone. When my family came to visit me in detention, I wasn’t allowed any physical contact, so I couldn’t hold my newborn daughters or my son.

I was at a breaking point, and nearly ready to sign deportation papers when – after being locked up for six months — I finally received a bond hearing as result of the court decision in Jennings. I was granted bond and released, allowing me to return to my family. With the help of an attorney, I was able to vacate my marijuana conviction because I had never been apprised of the immigration consequences to pleading guilty. As a result, ICE no longer had a reason to try to deport me.

Before Jennings, people fighting deportation could be detained indefinitely while they defend their rights to remain in the United States. This includes lawful permanent residents like me; asylum seekers and survivors of torture; the parents of young children who are citizens; and even citizens who are wrongly classified as immigrants. Many go on to win their deportation cases, which means their detention was completely unnecessary.

Even worse, a lot of people simply give up their cases because they can’t endure the hardship of being locked up. Detention almost broke me and I could have lost my life in the only country I’ve known since I was six years old. Instead, I’m here to share my story. Through this experience, I found my faith and am now deeply involved in my church and community. My son is six years old and my twins are five. My wife and I still run our business and I thank her all the time for being a pillar of strength while I was locked up. I hope the justices make the right choice — it can make all the difference.

KJ

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

We’re in “Catch 22” territory here! This respondent was locked up by DHS in “mandatory detention” because he was wrongfully convicted in state court. But, he couldn’t successfully challenge his state court conviction because he was locked up by DHS. Once he got a bond hearing, after six months, he was released, his conviction was vacated, and he and his family could go back to living their lives and being productive Americans. 

But, without the intervention of the 9th Circuit in Jennings, this individual likely would have been coerced into “voluntarily” relinquishing his Constitutional rights and accepting removal to a country where he hadn’t been since he was six years old. I can guarantee you that in jurisdictions where the Article III Courts have not intervened in a manner similar to Jennings, individuals are coerced into abandoning their Constitutional rights and foregoing potentially winning Immigration Court cases on a daily basis.

And, just think of the absurd waste of taxpayer money in detaining this harmless individual for months and forcing the legal system to intervene, rather than having both Congress and the DHS use some common sense and human decency. Few Americans fully contemplate just how broken our current immigration system is, and how we are trashing our Constitution with inane statutes enacted by Congress and poor judgment by the officials charged with administering them.

Easy to “blow off” until it’s you, a relative, or a friend whose Constitutional rights are being mocked and life ruined. But, by then, it will be too late! Stand up for Due Process and human decency now!

PWS

10

DEAN KEVIN JOHNSON SUMMARIZES ORAL ARGUMENT IN JENNINGS V. RODRIGUEZ FOR SCOTUS BLOG – Is There Some Hope For Constitutional Limits On “Gonzo” Immigration Enforcement & Mindless Imprisonment? — It’s A Nice Thought, But Too Early To Tell!

http://www.scotusblog.com/2017/10/argument-analysis-justices-seem-primed-find-constitutional-limits-detention-immigrants/

Dean Johnson writes:

Kevin Johnson Immigration

Posted Wed, October 4th, 2017 12:44 pm

“Argument analysis: Justices seem primed to find constitutional limits on the detention of immigrants

Yesterday, the Supreme Court heard reargument in Jennings v. Rodriguez, a class-action constitutional challenge to a variety of provisions of the immigration laws allowing for immigrant detention. After the oral argument last term, the court asked for further briefing on the constitutionality of the detention of immigrants. With the Trump administration promising to increase the use of detention as a form of immigration enforcement, the case has taken on increasing practical significance since the court first decided to review the case in June of 2016.

As discussed in my preview of the argument, two Supreme Court cases at the dawn of the new millennium offered contrasting approaches to the review of decisions of the U.S. government to detain immigrants. In 2001, in Zadvydas v. Davis, the Supreme Court interpreted an immigration statute to require judicial review of a detention decision because “to permit[] indefinite detention of an alien would cause a serious constitutional problem.” Just two years later, the court in Demore v. Kim invoked the “plenary power” doctrine – something exceptional to immigration law and inconsistent with modern constitutional law – to immunize from review a provision of the immigration statute requiring detention of immigrants awaiting removal based on a crime.

During the oral argument last term, the justices focused on two very different aspects of the case. On the one hand, as even the government seemed to concede, indefinite detention without a hearing is difficult to justify as a matter of constitutional law. At the same time, however, some justices worried that the U.S. Court of Appeals for the 9th Circuit had acted more like a legislature than a court in fashioning an injunction requiring bond hearings every six months. The reargument yesterday focused on similar questions, although several justices expressed alarm at the U.S. government’s claim that indefinite detention of immigrants is constitutional.

Deputy Solicitor General Malcom Stewart began for the United States by “stress[ing] the breadth of Congress’s constitutional authority to establish the rules under which aliens will be allowed to enter and remain in the United States.” Focusing first on noncitizens seeking to enter the U.S., he characterized the respondents’ claim as seeking “a constitutional right to be released into this country” during the pendency of their removal proceedings.

Justice Ruth Bader Ginsburg quickly took a poke at the government’s case, noting that someone with a credible fear of persecution who is applying for asylum might be able to gain parole into the United States. Justice Sonia Sotomayor got to the crux of the case in short order: “[W]hat other area of law have we permitted a government agent on his or her own, without a neutral party looking at that decision, to detain someone indefinitely?”

Stewart had no response except to say, paraphrasing language in the Cold War case United States ex rel. Knauff v. Shaughnessy, that for “aliens arriving at our shores … , whatever Congress chooses to give is due process.” Sotomayor’s incredulous response was blunt: “[T]hat’s lawlessness.”

Rejecting Stewart’s claim that the only alternatives for arriving immigrants are detention or release, Ginsburg pointed out that “there is something in between,” and that monitoring devices could be used to keep track of an immigrant released on bond. In response, Stewart invoked Demore v. Kim, and said that due process does not require Congress to use the least restrictive means with respect to detention of immigrants.

Justice Stephen Breyer kept Stewart on the ropes by pointing out the oddity of not giving bond hearings to noncitizens when they are given to “triple ax murderers.” Justice Elena Kagan seemed to agree that the detention statute should be read to permit a hearing and possible release.

Stewart then returned to defending the plenary-power doctrine and its Constitution-free-zone for noncitizens seeking admission into the United States. In response to a question from Kagan, he admitted that his argument was premised on the claim that people at the border “have no constitutional rights at all.” Armed with hypotheticals like the former law professor she is, Kagan asked whether the government could torture arriving immigrants or subject them to forced labor. Stewart agreed that such treatment would be unconstitutional, but then had a hard time explaining why indefinite detention does not also violate the Constitution.

After getting Stewart to agree that “detention violates due process, if there is an unreasonable delay in that detention,” Justice Anthony Kennedy asked whether a six-month rule for a hearing, which the 9th Circuit had adopted, might be appropriate. Along similar lines, Kagan suggested that, for immigrants with ties to the country, years in detention would be problematic. Stewart persisted in his position that years of detention without a bond hearing would be permissible. Kennedy seemed troubled by the apparent inconsistency between Stewart’s admission that unreasonably prolonged detention could violate due process and his insistence that arriving immigrants lack constitutional rights.

A former Supreme Court advocate, Chief Justice John Roberts asked Stewart pointedly about a statement in the government’s supplemental reply brief that 14 months without a hearing would cause constitutional problems, noting that it “sounds close to a concession.”

Justice Samuel Alito inquired about the appropriate remedy if there was a constitutional violation, suggesting that rather than adopting a bright-line rule, the court could employ a multi-factored approach like that used in assessing constitutional speedy-trial claims.

Next up was Ahilan Arulanantham of the American Civil Liberties Union of Southern California, who argued the case for the class of immigrants. He stated at the outset that there are limits on the government’s power to detain immigrants, which he said were based in longstanding case law. Ginsburg quickly asked about the 9th Circuit’s requirement of a bond hearing every six months, noting that criminal defendants receive an initial bail hearing, with no more required under the Constitution.

Kagan seemed to read Demore v. Kim as allowing for detention, but only for a matter of months. Arulanantham explained that the length of detention of the class members was much longer, in part because, unlike the detainee in Demore, they are opposing their removals and seek to remain in the United States. He emphasized that a significant component of the class was seeking cancellation of removal, which allows successful applicants to remain as lawful permanent residents.

Justice Neil Gorsuch raised some jurisdictional questions based on provisions of the immigration statute (8 U.S.C. §§ 1252(b)(9), (f)(1)) that limit the courts’ jurisdiction in immigration cases. Arulanantham said that the government concedes that Section (b)(9), which allows for review of a final removal order, does not apply to detention claims, and that the government had waived any jurisdictional objection based on Section (f)(1). Gorsuch seemed satisfied with these explanations.

Returning to Ginsburg’s earlier question about the 9th Circuit’s requirement that a bond hearing be conducted every six months, Arulanantham defended the rule, noting that “this Court has never authorized detention without a hearing before a neutral decision-maker, outside of national security, beyond six months.” Alito pushed back, asking, “Where does it say six months in the Constitution? Why is it six? Why isn’t it seven? Why isn’t it five? Why isn’t it eight?”

Roberts acknowledged that the constitutional concerns increase with the length of a detention, but still asked Arulanatham to justify that specific time limit. Arulanantham responded by citing government statistics showing that 90 percent of all detention cases under mandatory detention finish in less than six months. Roberts wondered whether habeas or other relief might be a possibility. Returning to this question later, Arulanantham offered statistics showing that final adjudication of a habeas petition takes 19 months in the U.S. Court of Appeals for the 11th Circuit and 14 months in the U.S. Court of Appeals for the 3rd Circuit.

Roberts also suggested that some of the immigrants were in detention for lengthier periods because they were preparing their cases. Pushing back, Arulanantham said in effect that an immigrant should not be penalized for seeking relief. He emphasized that the fact that an immigrant is pursuing relief does not make the person a flight risk.

Alito asked why an immediate bond hearing, as is the rule in criminal cases, was not required. Arulanantham noted that the Supreme Court had rejected that possibility in Demore. Late in the argument, Gorsuch asked about a possible remand to the 9th Circuit to decide first on constitutionality. Arulanantham admitted that could be a possibility but asked what would be gained.

As the reargument made clear, this case raises some fascinating constitutional questions, which now are squarely before the court. The justices seemed primed to find constitutional limits on the detention of immigrants. They seemed less troubled than they had been in the first argument by the six-month period for bond hearings established by the 9th Circuit, with the discussion about the reasonableness of the six-month period seeming to assuage their concerns.

Ultimately, this case offers the Supreme Court the opportunity to address the modern vitality of the plenary-power doctrine and finally decide whether, and if so how, the Constitution applies to arriving aliens. We will likely have to wait a few months longer to find out how the justices resolve that issue, which has significant implications in the immigration-law arena.

Posted in Jennings v. Rodriguez, Featured, Merits Cases

Recommended Citation: Kevin Johnson, Argument analysis: Justices seem primed to find constitutional limits on the detention of immigrants, SCOTUSblog (Oct. 4, 2017, 12:44 PM), http://www.scotusblog.com/2017/10/argument-analysis-justices-seem-primed-find-constitutional-limits-detention-immigrants/”

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

We can only hope. As I’ve pointed out before, coercive detention and the building of the “American Gulag” are key parts of the Trump-Sessions-DHS “Gonzo” Immigration Enforcement Plan. I still don’t think the Supremes fully understand just how inhumane and coercive immigration detention is and how it’s used to “squeeze” the life out of a detainee’s due process rights. And, it starts with making it difficult or impossible to get a lawyer of your own choosing. You actually have to see what happens in a DHS Detention Center (many of them private, for profit enterprises, looking to minimize care, maximize profits, and keep the beds filled) to fully grasp what a mockery the detention process and the location of “Detained Courts” in Detention Centers or in far-distant Televideo Courtrooms makes of our system of justice, the U.S. Immigration Courts, and our promise of Constitutional rights.

PWS

10-04-17

SUPREMES HEAR ARGUMENTS ON LONG-TERM PRE-HEARING IMMIGRATION DETENTION! — JENNINGS V. RODRIGUEZ

https://www.washingtonpost.com/politics/courts_law/supreme-court-debates-long-detentions-for-immigrants-facing-deportation/2017/10/03/a96a5300-a852-11e7-850e-2bdd1236be5d_story.html

Ann E. Marimow reports for the Washington Post:

“The Supreme Court’s liberal justices dominated discussion Tuesday about the prolonged detention of immigrants facing deportation, expressing concern about the government holding noncitizens indefinitely without a hearing.

At issue for the court is whether immigrants slated for deportation have the right to a bail hearing and possible release after six months if they are not a flight risk and pose no danger to the public.

The conservative justices were less vocal but expressed skepticism about whether the court should be setting firm deadlines for hearings in immigration cases.

A lawyer for the Justice Department told the high court that noncitizens — whether documented or undocumented immigrants — have no constitutional right to be in the United States.

The justices were taking a second look at the issue after an evenly divided court could not reach a decision last term and scheduled the case for reargument. With Justice Neil M. Gorsuch having joined the bench since then, he could cast the deciding vote.

[‘It will be momentous’: Supreme Court embarks on new term]

The case reached the high court after the U.S. Court of Appeals for the 9th Circuit ruled that immigrants fighting deportation are entitled to bond hearings if they have been held for more than six months. A lawyer for the American Civil Liberties Union, representing a group of noncitizens held for more than a year without a hearing, told the Supreme Court that the outcome of the case will affect thousands of people held in jaillike detention centers.

 

The outcome takes on heightened significance as President Trump has vowed to broadly increase immigration enforcement across the United States. Immigration arrests are up sharply since he took office in January, but deportations are down this year, in part because of a significant drop in illegal crossings on the southern border with Mexico.

The Supreme Court has previously held that undocumented immigrants are entitled to some form of due process when contesting their detention but also that “brief” detentions were allowed. Courts have interpreted those rulings in different ways, with the San Francisco-based 9th Circuit, for instance, requiring more procedural safeguards for those who would be held for months or even years.

The court’s liberals on Tuesday pressed Deputy Solicitor General Malcolm L. Stewart about why immigrants in detention centers are treated differently than criminal defendants, who automatically receive hearings to determine whether they remain locked up pending trial.

 

Justice Stephen G. Breyer noted that even a criminal suspect accused of “triple ax murders” is entitled to a bail hearing. “That to me is a little odd,” Breyer said, his voice rising.

Without time limits, Justice Sonia Sotomayor said, noncitizens languish in detention centers, sometimes for years. “That’s lawlessness,” she said.

During the previous argument last term, Justice Anthony M. Kennedy asserted that the constitutionality of the federal law was not at issue. But on Tuesday, he seemed more sympathetic to arguments in favor of a guaranteed timeline. He asked Stewart whether a lengthy delay because of a shortage of immigration judges was permissible and suggested that there should be a concretedeadline.

“Isn’t a bright line rule an easier way?” Kennedy asked.

Justice Elena Kagan followed up and asked whether a five-year backlog, for instance, was allowed. In response, Stewart said, an immigrant fighting deportation could always choose to return to his or her home country.

[Supreme Court considers whether those facing deportation can be held indefinitely]

The six-month deadline that the 9th Circuit set applies to a wide range of immigrants, from people detained after entering the United States for the first time to longtime legal residents. The case was brought by Alejandro Rodriguez, a lawful permanent resident who came to the country as an infant. The Department of Homeland Security started removal proceedings because of a conviction for drug possession and an earlier conviction for joyriding.

It can be done by Congress or by regulation, Alito said. But, he asked, “Where does it say six months in the Constitution?”

The case is Jennings v. Rodriguez.

Staff writers Maria Sacchetti and Robert Barnes contributed to this report.“

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

OK, let’s get to the heart of the disingenuous argument by the Solicitor General in behalf of DHS. A respondent is entitled to due process hearing before he or she can be removed from the United States. But, according to the Government, the respondent has no Constitutional right to be in the United States for that Constitutionally-required hearing. And, as we know, Immigration Courts have backlogs of over 600,000 cases, with hearings often taking four or more years to schedule.

The SG’s position doesn’t even pass then”straight face” test. But, that doesn’t necessarily mean that the majority of Justices won’t agree with it!

PWS

10-03-17

 

 

 

US DISTRICT COURT SLAMS DHS FOR NOT FOLLOWING DACA REVOCATION PROCEDURES! — TORRES V. DHS

DACA-TOPRRES-SDCA

Torres v. DHS, SDCA, 09-29-17, Hon. Torres v. DHS United States District Judge

KEY QUOTE FROM JUDGE MILLER’S OPINION:

“Defendants broadly argue that the DHS possesses such broad prosecutorial discretion that they need not follow the DACA SOP in terminating the status of DAC recipients. The court categorically rejects this proposition. While Defendants are granted broad discretion to commence, adjudicate, and execute removal orders, a fundamental principle of federal law is that a federal agency must follow its own procedures. Morton v. Ruiz, 415 U.S. 199, 233-35 (1974) (“[W]here the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.”); Nicholas v. INS, 590 F.2d 802, 809 (9th Cir.1979) (holding that INS violated its own regulation in processing a non-citizen’s request for immigration records); United States v. Heffner, 420 F.2d 809 (4th Cir. 1969) (courts must overturn agency actions which do not scrupulously follow the regulations and procedures promulgated by the agency itself). In Accardi, 347 U.S. 260, the petitioner alleged that the Board of Immigration Appeals (“BIA”) failed to exercise its discretion in determining his application for suspension of deportation. Id. at 261. Petitioner alleged that the BIA deferred to the decision of the Attorney General and, therefore, did not exercise its own regulatory discretion in determining his application. The BIA denied petitioner’s application allegedly because petitioner’s name was on a list of immigrants the Attorney General wanted deported. The regulatory scheme required the BIA to exercise its own judgment when considering immigration appeals, and not to rely upon the Attorney General’s determinations. The Supreme Court reversed the BIA’s denial of the application and remanded for further proceedings because the BIA allegedly failed to exercise its own discretion as required by its own relevant regulations.”

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Read the complete decision at the link.

Judge Miller found that the DHS “acted arbitrarily, capriciously, and abused their discretion.” Sadly, arbitrary, capricious, and abusive actions that sow fear and uncertainty in migrant communities are at the heart of the Trump-Sessions “Gonzo Enforcement Program.” But, they don’t always manifest themselves in ways so easy to prove to an Article III Judge.

Still, there is some good language here on the limits of DH/S prosecutorial discretion.That issue is likely to be tested over and over again in the Article III Courts.

PWS

10-03-17

DUE PROCESS WINS IN 9TH CIR! – DHS & IJS REQUIRED TO CONSIDER “ABILITY TO PAY” IN SETTING BOND! – HERNANDEZ V. SESSIONS

9TH-HERNANDEZ-BOND-2017

Hernandez v. Sessions, 9th Cir., 10-02-17 (Published)

PANEL: Stephen Reinhardt, Ferdinand F. Fernandez, and Kim McLane Wardlaw, Circuit Judges.

OPINION BY: Judge Reinhardt

CONCURRING & DISSENTING OPINION: Judge Fernandez

KEY QUOTE:

“Plaintiffs are likely to succeed on their challenge under the Due Process Clause to the government’s policy of allowing ICE and IJs to set immigration bond amounts without considering the detainees’ financial circumstances or alternative conditions of release. The government has failed to offer any convincing reason why these factors should not be considered in bond hearings for non-citizens who are determined not to be a danger to the community and not to be so great a flight risk as to require detention without bond. The irreparable harm to Plaintiffs of detention pursuant to bond amounts determined through a likely unconstitutional process far outweighs the minimal administrative burdens to the government of complying with the injunction while this case proceeds.

The district court’s order granting the preliminary injunction is AFFIRMED.

 29 The government also challenges the requirement that it meet and confer with Plaintiffs to develop guidelines for future immigration hearings. According to the government, this requirement gives “Plaintiffs’ counsel veto authority over the terms and guidelines to be used in those bond proceedings, [which] violates Congress’s delegation of such authority to the Executive.” To the contrary, the district court retains authority to resolve any disputes between the parties regarding implementation of the injunction. The requirement that the parties meet and confer is merely an administrative mechanism to reduce unnecessary burdens on the district court’s resources. It is an entirely ordinary exercise of the district court’s authority to manage cases and to encourage cooperation before parties resort to asking the court to resolve a dispute. See, e.g., C.D. Cal. L.R. 7-3 (requiring parties to confer prior to filing most motions and to file the motion only if the parties are “unable to reach a resolution which eliminates the necessity for a hearing”).”

KEY QUOTE FROM JUDGE FERNANDEZ, CONCURRING & DISSENTING:

“I agree that the district court did not abuse its discretion when it decided to issue a preliminary injunction requiring the consideration of “financial ability” and “alternative conditions of supervision”1 in making determinations regarding the release of aliens who have been detained pursuant to 8 U.S.C. § 1226(a). However, I do not agree with the breadth of the injunctive order that was issued. Thus, I respectfully concur in part and dissent in part.”

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Read the full decision at the above link.

WHY IT’S IMPORTANT

With an estimated 10 to 11 million “undocumented migrants” currently in the U.S., hundreds of thousands of cases annually being added to the U.S. Immigration Courts’ already out of control docket of 630,000 cases, and the Trump Administration’s “gonzo” enforcement policy where line agents often arbitrarily decide which migrants to place in Immigration Court (presumably somewhat driven by the need to show “numbers” for budget and performance purposes), one thing is obvious: The system would collapse immediately if everyone apprehended by the DHS at the border and in the interior simply insisted on a full due process “Individual Merits” hearing. Thus, the migrants’s exercise of the Constitutional right to due process and a meaningful opportunity to be heard is the enemy of DHS’s out of control, “gonzo” enforcement.

So, what is DHS to do to suppress this dangerous exercise of constitutional rights? Here are DHS’s “strategies:”

  1. Avoid the hearing process entirely by using some form of “expedited removal” which avoids Immigration Court altogether;
  2. In absentia orders, often based on incomplete address information and inadequate warnings being given to migrants by DHS and/or on sloppy address recording and hearing notice procedures by DHS and EOIR resulting in individuals being clueless about their so-called “final orders” and therefore ill-equipped to exercise their statutory right to move for reopening;
  3. Coercive detention, used to demoralize, discourage, and duress migrants into “waiving” their due process rights and agreeing to depart without a merits hearing either by so-called “voluntary departure” or an uncontested final order.

Obviously, setting reasonable bonds that allow-income migrants can actually pay interferes with the full coerciveness of detention. Once released, migrants have a better chance of locating an attorney, filing a plausible application for relief, and ultimately being granted permission to stay. Therefore, resisting and “monkey wrenching” reasonable release on bonds is a key element of the current DHS “gonzo” enforcement strategy.

One of the ways that most fair U.S. Immigration Judges combat this is by using various “arbitration and mediation skills” to encourage DHS to accept reasonable bonds and waive appeal. But, as previously reported, counsel across the country report that DHS is refusing to negotiate bonds and appealing many of those set by the IJ. In other words, DHS is hoping that the coercive effect of detention will force folks to leave without a hearing before they run out of detention space in the New American Gulag.

Thus, U.S. Immigration Judges have become somewhat feckless in the bond process. DHS simply “blows off” the IJs’ entreaties to negotiate because DHS knows that they can unilaterally block release pending appeal anyway. And, as I previously pointed out, the BIA routinely holds bond appeals pending the completion of detained  merits hearings and then simply dismisses the bond appeal as “moot.” As one (now former) Assistant Chief Counsel in Arlington undiplomatically informed me during a bond hearing shortly after I took the bench in 2003: “You can enter any order you want Judge, but the Detention Officer is going to decide whether or not this respondent gets released.” That’s the point at which I became an “Article I convert.”

Consequently, an Article III (a/k/a “Real”) Court enforcing due process and also requiring the DHS to negotiate some reasonable criteria and procedures for release on bond is both essential to our Constitutional system of due process and justice and also is a direct threat to unbridled DHS “gonzo enforcement.” As you can see from “FN 29” above, DHS has absolutely no interest in settling this case on a reasonable basis, although urged to do so by both the US District Court and the Court of Appeals. They expect and want the Article III Courts to “just roll over” like the “captive” Immigration Courts do.

Consequently, we can expect the Administration to fight tooth and nail against all efforts to put meaning in the currently largely false promise of Due Process in Immigration Court! Expect a DHS appeal to the Supremes! Stay tuned!

PWS

10-03-17

 

 

 

GONZO’S WORLD: COMING TO THE SUPREMES THIS FALL: Jeff Sessions v. United States of America! – White Nationalist AG Takes On 21st Century America In Concerted Effort To Recreate “The Bad Old Days” Of Maximo Bias & Inequality!

http://www.motherjones.com/politics/2017/10/trumps-justice-department-is-taking-on-other-federal-agencies-in-court/

Pena Levy reports for Mother Jones:

“The first day of the Supreme Court’s new term on Monday will feature a rare legal showdown: The Justice Department will face off against another federal agency. It’s unusual for the Justice Department, representing the United States government, to disagree with an executive agency, much less send its top lawyer to try to defeat that agency before the Supreme Court—but it’s only the first of several such confrontations in the Trump administration.

There are currently three major cases in which the Justice Department under Attorney General Jeff Sessions has taken a position in opposition to another executive agency. The nation’s top court will referee one of these disagreements on Monday, and the other two are likely to reach the Supreme Court next year. The situation is partially explained by politics: The department is opposing agencies whose missions—protecting the interests of workers and consumers—are less likely to align with the goals of a conservative administration. But it’s also a signal of how aggressive the Justice Department plans to be in pursing its conservative agenda through the courts.

“It’s highly unusual to have two lawyers, both representing the federal government, taking opposite positions in a court,” says Deepak Gupta, an appellate lawyer who has filed briefs in two of the cases opposing the Justice Department’s positions. “The fact that it’s happening in multiple instances across a broad range of issues is really remarkable and is a sign of how aggressively the Trump administration is flipping positions on a broad range of issues.”

The case going before the court on Monday concerns workers’ right to collective action. The other two will decide whether the creation of the agency in charge of protecting consumers violates the Constitution and whether the 1964 Civil Rights Act protects employees from being fired because of their sexual orientation. The Justice Department’s willingness to take on other agencies is even more notable because in two of the cases, the department’s top lawyers had to change the department’s position in order to oppose the agencies. Such changes are generally not made without serious deliberation and restraint because the department is expected to have a consistent position on legal issues.

“You would expect the justices to perhaps want to look a little bit more closely at precisely what the government’s position is,” says Jonathan Adler, a professor of constitutional and administrative law at the Case Western Reserve University School of Law, “to make sure that any change is in fact well considered and not something that’s being done cavalierly or superficially.”

On Monday, the US solicitor general, a Republican lawyer named Noel Francisco who was confirmed by the Senate earlier this month, will argue against the National Labor Relations Board (NLRB), which his office was representing until a few months ago. Under President Barack Obama, the solicitor general prepared to represent the NLRB, the federal agency charged with protecting workers from unfair labor practices, before the Supreme Court. But in June, the solicitor general’s office switched sides. “After the change in administration, the Office reconsidered the issue and has reached the opposite conclusion,” the office announced in a brief. The NLRB would now need to represent itself, and the solicitor general would appear in court on the other side. Labor advocates say they have to go back to the Reagan administration to find an analogous situation, in which a new administration changed its position before the Supreme Court for what appeared to be largely political reasons. 

This is not normal, even in a change of administration,” says Celine McNicholas, a labor attorney at the Economic Policy Institute, a progressive think tank, and a former counsel at the NLRB. Politics always affect agencies’ agendas, she says, but for the solicitor general to change his office’s stance before the Supreme Court for what appear to be political reasons “is a significant shift.”

The stakes in the NLRB case are high. The question is whether employment contracts can prohibit employees from joining together to seek better working conditions or higher wages or to address grievances, instead forcing them into secret, individual arbitration proceedings. Since 2012, the NLRB has held that these increasingly common mandatory arbitration clauses are illegal because they violate employees’ right to join together, which is enshrined in the 1935 National Labor Relations Act. The Justice Department has taken the position that in order to get a job, workers can be forced to waive any right to petition collectively in the future. If the department and the employers it is siding with prevail, such employment contracts are likely to proliferate further, giving every employer the ability to escape any chance of a class-action lawsuit or other type of collective agitation.

In March, the Justice Department filed a motion before the DC Circuit Court of Appeals in which it agreed with PHH. A “removal restriction for the Director of the CFPB is an unwarranted limitation on the President’s executive power,” the department wrote in a court filing announcing its new position.The Justice Department has also switched positions in a case over the Consumer Financial Protection Bureau (CFPB), the agency created after the financial collapse in 2008 to protect consumers from predatory mortgages, credit cards, student loans, and other financial products. The agency, the brainchild of Sen. Elizabeth Warren (D-Mass.), has been a target of Republicans since its inception. Now the Trump administration has seized on a chance to weaken it. The case originated when the CFBP levied a $109 million fine against PHH Corporation, a mortgage services provider that it alleged was referring customers to specific insurers in what was tantamount to a kickback scheme. PHH sued, claiming that in creating the CFPB’s leadership structure, Congress made the agency more independent from the president than is allowed under the Constitution. The agency’s director serves a five-year term and can only be fired by the president for cause.

Gupta, a former top official at the CFPB, sees this case as the most troubling of the three because, rather than execute the laws passed by Congress as required by the Constitution, the administration has opted to argue against an act of Congress. This is not unheard of; in 2011, the Obama administration announced that it would no longer defend a federal law that banned the recognition of same-sex marriages. But in announcing that decision, then-Attorney General Eric Holder explained that it was made in consultation with Obama and after an extensive review of the issue.

In contrast, the Trump administration’s decision to flip its position on the constitutionality of the CFPB seemed to lack serious deliberation. Three weeks before the administration announced its new position in a court filing, the department took the opposite position in a case that raised the same constitutional objection to another agency—the Federal Housing Finance Agency (FHFA)—with the same leadership structure as the CFPB. In February, the department filed a brief, signed by acting assistant attorney general Chad Readler, in which it argued that the challenge to the FHFA’s structure was an “illogical thesis” and “wholly without merit.” Three weeks later, Readler made the opposite argument about the CFPB. Acknowledging the conflict, Readler advised the court retroactively in the FHFA case that the government “does not urge reliance” on the argument it had previously advocated.”

. . . .

But under Sessions, the Justice Department has decided not only to take on other executive agencies, but also to switch positions in a number of other cases, including multiple voting rights cases. How judges will react to this fickleness—particularly in the coming Supreme Court term—could affect the Trump administration’s ability to uphold its broader agenda in the courts. “Of all the offices in the federal government,” says Adler, “we tend to expect the solicitor general’s office to be the most candid about what the law requires versus what’s a policy judgment, and to really not overplay that or overstate that.”

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Read the complete article at the link.

“This is not normal.” That pretty much sums up the Trump Administration and the entire career of “Gonzo Apocalypto” Sessions in a nutshell! The worst thing is that U.S. taxpayers are being ripped off for clowns like Sessions and his fellow travelers who are out to trash the rights and interests of the majority of Americans and to rip apart the rule of law and decency in Government at the same time.

It’s sorta like when guerrillas support themselves by extorting their political enemies or perceived enemies (something that the BIA in its wrong-headed rush to restrict asylum protection doesn’t recognize as “persecution,” even though it’s one of the oldest and most classic forms of political persecution). Make no mistake about it, Gonzo and his team of politicos are waging “guerrilla warfare” against career lawyers and the rule of law at the U.S. Department of Justice and in the Federal Courts. And, to date, they have largely gotten away with it.

These unquestionably are “law-free” bias-driven policy decisions by Gonzo. I’ve never seen any evidence whatsoever that Sessions actually reads or has even basic knowledge of American law. It’s just not necessary for a lifelong member of “The Wrecking Crew.” What is clear, however, is that he arrived at DOJ not with legal books, but with “cue cards” prepared for him by the Heritage Foundation, restrictionist immigration groups, and his White Nationalist buddies Miller and Bannon. His memoranda and briefs are studies in disingenuous doublespeak, complete nonsense, White Nationalist myths, and an overall intellectual shallowness that almost matches that of Trump.

It also shows why nobody should take seriously Gonzo’s disingenuous babbling about the Constitution or the “Rule of Law,” both of which he mocks nearly every day he remans in the high office for which he is so spectacularly unqualified. Liz was definitely right!

The good news, if any, is that by the time this disaster is over, the Solicitor General’s Office will have lost its last shred of credibility in the Article III Federal Courts. And, perhaps it will be a good thing for American justice when the “SG” loses his or her “privileged position” and is finally viewed as just another suspect and self-interested litigant in court. And, not a very smart or very well-qualified litigant at that.

Once lost, credibility can seldom be regained. Think about that one, Noel Francisco, before you and your subordinates become complete shills for the legally and morally bankrupt positions of Gonzo and Trump.

PWS

10-02-17

DEAN KEVIN JOHNSON PREVIEWS JENNINGS V. RODRIGUEZ (INDEFINITE PREHEARING IMMIGRATION DETENTION) OA IN SCOTUS BLOG

http://www.scotusblog.com/2017/09/argument-preview-constitutionality-mandatory-lengthy-immigrant-detention-without-bond-hearing/

Dean Johnson writes:

“Detention as a tool of immigration enforcement has increased dramatically following immigration reforms enacted in 1996. Two Supreme Court cases at the dawn of the new millennium offered contrasting approaches to the review of decisions of the U.S. government to detain immigrants. In 2001, in Zadvydas v. Davis, the Supreme Court interpreted an immigration statute to require judicial review of a detention decision because “to permit[] indefinite detention of an alien would cause a serious constitutional problem.” Just two years later, the court in Demore v. Kim invoked the “plenary power” doctrine – something exceptional to immigration law and inconsistent with modern constitutional law – to immunize from review a provision of the immigration statute requiring detention of immigrants awaiting removal based on a crime.

How the Supreme Court reconciles these dueling decisions will no doubt determine the outcome in Jennings v. Rodriguez. This case involves the question whether immigrants, like virtually any U.S. citizen placed in criminal or civil detention, must be guaranteed a bond hearing and possible release from custody. Relying on Zadvydas v. Davis, the U.S. Court of Appeals for the 9th Circuit affirmed a district court injunction that avoided “a serious constitutional problem” by requiring bond hearings every six months for immigrant detainees. The court of appeals further mandated that, in order to continue to detain an immigrant, the government must prove that the noncitizen poses a flight risk or a danger to public safety.”

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Read the rest of Dean Johnson’s analysis at the link.

This is huge in human rights. A “W” for the Administration, which many observers view as likely with the advent of Justice Gorsuch, will essentially “Green Light” the Trump-Sessions-Miller plan to construct the “New American Gulag.” The Gulag’s “prisoners” will be noncriminal migrants (many of them women fleeing violence in the Northern Triangle) whose only “crime” is to assert their rights for due process and justice under our laws.

The concept that migrants have rights is something that sticks in the craws of the White Nationalists. So, punishing them for asserting their rights (with an objective of coercing them into giving up their rights and leaving “voluntarily”) is the next best thing to denying them entirely (which the Administration routinely does whenever it thinks it can get away with it — and the Article IIIs have largely, but not entirely, been asleep at the switch here).

And, make no mistake about it, as study after study has shown, the “conditions of civil detention” in the Gulag are substandard. So much so that in the last Administration DHS’s own study committee actually recommended an end to private immigration detention contracts and a phasing out of so-called “family detention.” The response of the Trump White Nationalists: ignore the facts and double down on the inhumanity.

Based on recent news reports, DHS immigration detainees die at a rate of approximately one per month.  And many more suffer life changing and life threatening medical and psychiatric conditions while in detention. Just “collateral damage” in “Gonzo speak.”

Immigration detainees are often held without bond or with bonds that are so unrealistically high that they effectively amount to no bond. And, in many cases (like the one here) they are denied even minimal access to a U.S. Immigration Judge to have the reasons for detention reviewed.

Plus, as I reported recently, across the nation DHS is refusing to negotiate bonds for those eligible. They are also appealing Immigration Judge decisions to release migrants on bond pending hearings, apparently without any regard to the merits of the IJ’s decision. In other words, DHS is abusing the immigration appeals system for the purpose of harassing migrants who won’t agree to waive their rights to a due process hearing and depart!

Also, as I pointed out, in the “no real due process” world of  the U.S. Immigration Courts, the DHS prosecutors can unilaterally block release of a migrant on bond pending appeal. In most cases this means that the individual remains in detention until the Immigration Judge completes the “merits hearing.” At that point the BIA determines that the DHS bond appeal is “moot” and dismisses it without ever reaching the merits. Just another bogus “production” statistic generated by EOIR!

Oh, and by the way, contrary to “Gonzo” Session’s false and misleading rhetoric on so-called “Sanctuary Cities,” one of the things jurisdictions that rationally choose to limit cooperation with DHS enforcement to those with significant criminal records are doing is protecting their law-abiding, productive migrant residents and migrant communities from the patent abuses of  the “American Gulag.” “Gonzo policies” predictably drive reasonable people to take protective actions.

But, some day, the bureaucrats, complicit judges (particularly life-tenured Article III Judges, like the Supremes), reactionary legislators who turn their backs on human suffering, and misguided voters who have allowed this human rights travesty to be perpetrated on American soil will be held accountable, by the forces of history if nothing else.

PWS

09-28-17

ADMINISTRATION ISSUES TRAVEL BAN 3.0!

https://www.washingtonpost.com/world/national-security/trump-administration-changes-travel-ban-countries/2017/09/24/1fef7cfe-a140-11e7-ade1-76d061d56efa_story.html

The Washington Post reports:

“The Trump administration announced new restrictions Sunday on visitors from eight countries — an expansion of the pre-existing travel ban that has spurred fierce legal debates over security, immigration and discrimination.

Officials had said they wanted the new rules to be both tough and targeted. The move comes as the key portion of President Trump’s travel ban, which bars the issuance of visas to citizens of six majority-Muslim countries, is set to expire.

“These restrictions are necessary and conditions-based, not time-based,” a senior administration official said.

The new travel restrictions represent the third version offered by the Trump administration.

Three new nations were added to the list of countries whose citizens will face the restrictions: Chad, North Korea and Venezuela — although the restrictions on Venezuela target that country’s leadership and family members. One country, Sudan, fell off the travel ban list issued at the beginning of the year. Senior administration officials said a review of Sudan’s cooperation with their national security concerns and information-sharing showed that it was appropriate to remove the nation from the list.

The new restrictions will be phased in over time, officials said, and the restrictions will not affect anyone who already holds a U.S. visa.

The original travel ban was created as a temporary measure, designed to give officials a few months to assess the vetting of visa applicants and what information other countries could and couldn’t provide.

 

“The restrictions either previously or now were never, ever ever based on race, religion or creed,’’ one senior administration official said. “Those governments are simply not compliant with our basic security requirements.”

The original version, signed as an executive order in January, blocked citizens of seven majority-Muslim countries — Iraq, Iran, Sudan, Somalia, Libya, Yemen and Syria — as well as all refugees across the globe.

When that measure was blocked in court, Trump signed a revised order removing Iraq from the banned list and only barring the issuance of visas to citizens of the six remaining countries and all refugees.

The second order, too, was blocked by judges, but the Supreme Court in June allowed it to go into effect with a significant caveat. The administration, the court said, could not block from entering the country those with a “bona fide” connection to the United States, such as family members or those with firm offers of employment.

The ban on citizens of the six countries was to last 90 days; the ban on refugees was to last 120 days. The refu­gee ban is set to expire Oct. 24, and it was not immediately clear what impact the new restrictions might have on it.

The Supreme Court has scheduled arguments for Oct. 10 on whether the measure, at its core, is legal. It is unclear how any new restrictions might affect that case, and it is possible that they could spark fresh legal challenges.

 

Many countries, officials said, already met U.S. requests — using secure biometric passports, for example, and willingly passing along terrorism and criminal-history information. Others agreed to make changes and share more data. But some were either unable or unwilling to give the United States what it needed, officials said.

Citing an attack in London earlier this month, Trump seemed to call for an expansion of the travel ban, writing on Twitter, “The travel ban into the United States should be far larger, tougher and more specific-but stupidly, that would not be politically correct!”

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We’ll see how it all plays out!

PWS

09-25-17

Here’s the full text of Trump’s order:

The White House
Office of the Press Secretary
For Immediate ReleaseSeptember 24, 2017
Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats

ENHANCING VETTING CAPABILITIES AND PROCESSES FOR DETECTING ATTEMPTED ENTRY INTO THE UNITED STATES BY TERRORISTS OR OTHER PUBLIC-SAFETY THREATS
– – – – – – –
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION
In Executive Order 13780 of March 6, 2017 (Protecting the Nation from Foreign Terrorist Entry into the United States), on the recommendations of the Secretary of Homeland Security and the Attorney General, I ordered a worldwide review of whether, and if so what, additional information would be needed from each foreign country to assess adequately whether their nationals seeking to enter the United States pose a security or safety threat. This was the first such review of its kind in United States history. As part of the review, the Secretary of Homeland Security established global requirements for information sharing in support of immigration screening and vetting. The Secretary of Homeland Security developed a comprehensive set of criteria and applied it to the information-sharing practices, policies, and capabilities of foreign governments. The Secretary of State thereafter engaged with the countries reviewed in an effort to address deficiencies and achieve improvements. In many instances, those efforts produced positive results. By obtaining additional information and formal commitments from foreign governments, the United States Government has improved its capacity and ability to assess whether foreign nationals attempting to enter the United States pose a security or safety threat. Our Nation is safer as a result of this work.
Despite those efforts, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, has determined that a small number of countries — out of nearly 200 evaluated — remain deficient at this time with respect to their identity-management and information-sharing capabilities, protocols, and practices. In some cases, these countries also have a significant terrorist presence within their territory.
As President, I must act to protect the security and interests of the United States and its people. I am committed to our ongoing efforts to engage those countries willing to cooperate, improve information-sharing and identity-management protocols and procedures, and address both terrorism-related and public-safety risks. Some of the countries with remaining inadequacies face significant challenges. Others have made strides to improve their protocols and procedures, and I commend them for these efforts. But until they satisfactorily address the identified inadequacies, I have determined, on the basis of recommendations from the Secretary of Homeland Security and other members of my Cabinet, to impose certain conditional restrictions and limitations, as set forth more fully below, on entry into the United States of nationals of the countries identified in section 2 of this proclamation.
NOW, THEREFORE, I, DONALD J. TRUMP, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(f) and 1185(a), and section 301 of title 3, United States Code, hereby find that, absent the measures set forth in this proclamation, the immigrant and nonimmigrant entry into the United States of persons described in section 2 of this proclamation would be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions. I therefore hereby proclaim the following:
Section 1. Policy and Purpose. (a) It is the policy of the United States to protect its citizens from terrorist attacks and other public-safety threats. Screening and vetting protocols and procedures associated with visa adjudications and other immigration processes play a critical role in implementing that policy. They enhance our ability to detect foreign nationals who may commit, aid, or support acts of terrorism, or otherwise pose a safety threat, and they aid our efforts to prevent such individuals from entering the United States.
(b) Information-sharing and identity-management protocols and practices of foreign governments are important for the effectiveness of the screening and vetting protocols and procedures of the United States. Governments manage the identity and travel documents of their nationals and residents. They also control the circumstances under which they provide information about their nationals to other governments, including information about known or suspected terrorists and criminal-history information. It is, therefore, the policy of the United States to take all necessary and appropriate steps to encourage foreign governments to improve their information-sharing and identity-management protocols and practices and to regularly share identity and threat information with our immigration screening and vetting systems.
(c) Section 2(a) of Executive Order 13780 directed a “worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat.” That review culminated in a report submitted to the President by the Secretary of Homeland Security on July 9, 2017. In that review, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, developed a baseline for the kinds of information required from foreign governments to support the United States Government’s ability to confirm the identity of individuals seeking entry into the United States as immigrants and nonimmigrants, as well as individuals applying for any other benefit under the immigration laws, and to assess whether they are a security or public-safety threat. That baseline incorporates three categories of criteria:
(i) Identity-management information. The United States expects foreign governments to provide the information needed to determine whether individuals seeking benefits under the immigration laws are who they claim to be. The identity-management information category focuses on the integrity of documents required for travel to the United States. The criteria assessed in this category include whether the country issues electronic passports embedded with data to enable confirmation of identity, reports lost and stolen passports to appropriate entities, and makes available upon request identity-related information not included in its passports.
(ii) National security and public-safety information. The United States expects foreign governments to provide information about whether persons who seek entry to this country pose national security or public-safety risks. The criteria assessed in this category include whether the country makes available, directly or indirectly, known or suspected terrorist and criminal-history information upon request, whether the country provides passport and national-identity document exemplars, and whether the country impedes the United States Government’s receipt of information about passengers and crew traveling to the United States.
(iii) National security and public-safety risk assessment. The national security and public-safety risk assessment category focuses on national security risk indicators. The criteria assessed in this category include whether the country is a known or potential terrorist safe haven, whether it is a participant in the Visa Waiver Program established under section 217 of the INA, 8 U.S.C. 1187, that meets all of its requirements, and whether it regularly fails to receive its nationals subject to final orders of removal from the United States.
(d) The Department of Homeland Security, in coordination with the Department of State, collected data on the performance of all foreign governments and assessed each country against the baseline described in subsection (c) of this section. The assessment focused, in particular, on identity management, security and public-safety threats, and national security risks. Through this assessment, the agencies measured each country’s performance with respect to issuing reliable travel documents and implementing adequate identity-management and information-sharing protocols and procedures, and evaluated terrorism-related and public-safety risks associated with foreign nationals seeking entry into the United States from each country.
(e) The Department of Homeland Security evaluated each country against the baseline described in subsection (c) of this section. The Secretary of Homeland Security identified 16 countries as being “inadequate” based on an analysis of their identity-management protocols, information-sharing practices, and risk factors. Thirty-one additional countries were classified “at risk” of becoming “inadequate” based on those criteria.
(f) As required by section 2(d) of Executive Order 13780, the Department of State conducted a 50-day engagement period to encourage all foreign governments, not just the 47 identified as either “inadequate” or “at risk,” to improve their performance with respect to the baseline described in subsection (c) of this section. Those engagements yielded significant improvements in many countries. Twenty-nine countries, for example, provided travel document exemplars for use by Department of Homeland Security officials to combat fraud. Eleven countries agreed to share information on known or suspected terrorists.
(g) The Secretary of Homeland Security assesses that the following countries continue to have “inadequate” identity-management protocols, information-sharing practices, and risk factors, with respect to the baseline described in subsection (c) of this section, such that entry restrictions and limitations are recommended: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. The Secretary of Homeland Security also assesses that Iraq did not meet the baseline, but that entry restrictions and limitations under a Presidential proclamation are not warranted. The Secretary of Homeland Security recommends, however, that nationals of Iraq who seek to enter the United States be subject to additional scrutiny to determine if they pose risks to the national security or public safety of the United States. In reaching these conclusions, the Secretary of Homeland Security considered the close cooperative relationship between the United States and the democratically elected government of Iraq, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combating the Islamic State of Iraq and Syria (ISIS).
(h) Section 2(e) of Executive Order 13780 directed the Secretary of Homeland Security to “submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means.” On September 15, 2017, the Secretary of Homeland Security submitted a report to me recommending entry restrictions and limitations on certain nationals of 7 countries determined to be “inadequate” in providing such information and in light of other factors discussed in the report. According to the report, the recommended restrictions would help address the threats that the countries’ identity-management protocols, information-sharing inadequacies, and other risk factors pose to the security and welfare of the United States. The restrictions also encourage the countries to work with the United States to address those inadequacies and risks so that the restrictions and limitations imposed by this proclamation may be relaxed or removed as soon as possible.
(i) In evaluating the recommendations of the Secretary of Homeland Security and in determining what restrictions to impose for each country, I consulted with appropriate Assistants to the President and members of the Cabinet, including the Secretaries of State, Defense, and Homeland Security, and the Attorney General. I considered several factors, including each country’s capacity, ability, and willingness to cooperate with our identity-management and information-sharing policies and each country’s risk factors, such as whether it has a significant terrorist presence within its territory. I also considered foreign policy, national security, and counterterrorism goals. I reviewed these factors and assessed these goals, with a particular focus on crafting those country-specific restrictions that would be most likely to encourage cooperation given each country’s distinct circumstances, and that would, at the same time, protect the United States until such time as improvements occur. The restrictions and limitations imposed by this proclamation are, in my judgment, necessary to prevent the entry of those foreign nationals about whom the United States Government lacks sufficient information to assess the risks they pose to the United States. These restrictions and limitations are also needed to elicit improved identity-management and information-sharing protocols and practices from foreign governments; and to advance foreign policy, national security, and counterterrorism objectives.
(ii) After reviewing the Secretary of Homeland Security’s report of September 15, 2017, and accounting for the foreign policy, national security, and counterterrorism objectives of the United States, I have determined to restrict and limit the entry of nationals of 7 countries found to be “inadequate” with respect to the baseline described in subsection (c) of this section: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. These restrictions distinguish between the entry of immigrants and nonimmigrants. Persons admitted on immigrant visas become lawful permanent residents of the United States. Such persons may present national security or public-safety concerns that may be distinct from those admitted as nonimmigrants. The United States affords lawful permanent residents more enduring rights than it does to nonimmigrants. Lawful permanent residents are more difficult to remove than nonimmigrants even after national security concerns arise, which heightens the costs and dangers of errors associated with admitting such individuals. And although immigrants generally receive more extensive vetting than nonimmigrants, such vetting is less reliable when the country from which someone seeks to emigrate exhibits significant gaps in its identity-management or information-sharing policies, or presents risks to the national security of the United States. For all but one of those 7 countries, therefore, I am restricting the entry of all immigrants.
(iii) I am adopting a more tailored approach with respect to nonimmigrants, in accordance with the recommendations of the Secretary of Homeland Security. For some countries found to be “inadequate” with respect to the baseline described in subsection (c) of this section, I am restricting the entry of all nonimmigrants. For countries with certain mitigating factors, such as a willingness to cooperate or play a substantial role in combatting terrorism, I am restricting the entry only of certain categories of nonimmigrants, which will mitigate the security threats presented by their entry into the United States. In those cases in which future cooperation seems reasonably likely, and accounting for foreign policy, national security, and counterterrorism objectives, I have tailored the restrictions to encourage such improvements.
(i) Section 2(e) of Executive Order 13780 also provided that the “Secretary of State, the Attorney General, or the Secretary of Homeland Security may also submit to the President the names of additional countries for which any of them recommends other lawful restrictions or limitations deemed necessary for the security or welfare of the United States.” The Secretary of Homeland Security determined that Somalia generally satisfies the information-sharing requirements of the baseline described in subsection (c) of this section, but its government’s inability to effectively and consistently cooperate, combined with the terrorist threat that emanates from its territory, present special circumstances that warrant restrictions and limitations on the entry of its nationals into the United States. Somalia’s identity-management deficiencies and the significant terrorist presence within its territory make it a source of particular risks to the national security and public safety of the United States. Based on the considerations mentioned above, and as described further in section 2(h) of this proclamation, I have determined that entry restrictions, limitations, and other measures designed to ensure proper screening and vetting for nationals of Somalia are necessary for the security and welfare of the United States.
(j) Section 2 of this proclamation describes some of the inadequacies that led me to impose restrictions on the specified countries. Describing all of those reasons publicly, however, would cause serious damage to the national security of the United States, and many such descriptions are classified.
Sec. 2. Suspension of Entry for Nationals of Countries of Identified Concern. The entry into the United States of nationals of the following countries is hereby suspended and limited, as follows, subject to categorical exceptions and case by-case waivers, as described in sections 3 and 6 of this proclamation:
(a) Chad.
(i) The government of Chad is an important and valuable counterterrorism partner of the United States, and the United States Government looks forward to expanding that cooperation, including in the areas of immigration and border management. Chad has shown a clear willingness to improve in these areas. Nonetheless, Chad does not adequately share public-safety and terrorism-related information and fails to satisfy at least one key risk criterion. Additionally, several terrorist groups are active within Chad or in the surrounding region, including elements of Boko Haram, ISIS-West Africa, and al-Qa’ida in the Islamic Maghreb. At this time, additional information sharing to identify those foreign nationals applying for visas or seeking entry into the United States who represent national security and public-safety threats is necessary given the significant terrorism-related risk from this country.
(ii) The entry into the United States of nationals of Chad, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is hereby suspended.
(b) Iran.
(i) Iran regularly fails to cooperate with the United States Government in identifying security risks, fails to satisfy at least one key risk criterion, is the source of significant terrorist threats, and fails to receive its nationals subject to final orders of removal from the United States. The Department of State has also designated Iran as a state sponsor of terrorism.
(ii) The entry into the United States of nationals of Iran as immigrants and as nonimmigrants is hereby suspended, except that entry by such nationals under valid student (F and M) and exchange visitor (J) visas is not suspended, although such individuals should be subject to enhanced screening and vetting requirements.
(c) Libya.
(i) The government of Libya is an important and valuable counterterrorism partner of the United States, and the United States Government looks forward to expanding on that cooperation, including in the areas of immigration and border management. Libya, nonetheless, faces significant challenges in sharing several types of information, including public-safety and terrorism-related information necessary for the protection of the national security and public safety of the United States. Libya also has significant inadequacies in its identity-management protocols. Further, Libya fails to satisfy at least one key risk criterion and has been assessed to be not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States. The substantial terrorist presence within Libya’s territory amplifies the risks posed by the entry into the United States of its nationals.
(ii) The entry into the United States of nationals of Libya, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is hereby suspended.
(d) North Korea.
(i) North Korea does not cooperate with the United States Government in any respect and fails to satisfy all information-sharing requirements.
(ii) The entry into the United States of nationals of North Korea as immigrants and nonimmigrants is hereby suspended.
(e) Syria.
(i) Syria regularly fails to cooperate with the United States Government in identifying security risks, is the source of significant terrorist threats, and has been designated by the Department of State as a state sponsor of terrorism. Syria has significant inadequacies in identity-management protocols, fails to share public-safety and terrorism information, and fails to satisfy at least one key risk criterion.
(ii) The entry into the United States of nationals of Syria as immigrants and nonimmigrants is hereby suspended.
(f) Venezuela.
(i) Venezuela has adopted many of the baseline standards identified by the Secretary of Homeland Security and in section 1 of this proclamation, but its government is uncooperative in verifying whether its citizens pose national security or public-safety threats. Venezuela’s government fails to share public-safety and terrorism-related information adequately, fails to satisfy at least one key risk criterion, and has been assessed to be not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States. There are, however, alternative sources for obtaining information to verify the citizenship and identity of nationals from Venezuela. As a result, the restrictions imposed by this proclamation focus on government officials of Venezuela who are responsible for the identified inadequacies.
(ii) Notwithstanding section 3(b)(v) of this proclamation, the entry into the United States of officials of government agencies of Venezuela involved in screening and vetting procedures — including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations — and their immediate family members, as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is hereby suspended. Further, nationals of Venezuela who are visa holders should be subject to appropriate additional measures to ensure traveler information remains current.
(g) Yemen.
(i) The government of Yemen is an important and valuable counterterrorism partner, and the United States Government looks forward to expanding that cooperation, including in the areas of immigration and border management. Yemen, nonetheless, faces significant identity-management challenges, which are amplified by the notable terrorist presence within its territory. The government of Yemen fails to satisfy critical identity-management requirements, does not share public-safety and terrorism-related information adequately, and fails to satisfy at least one key risk criterion.
(ii) The entry into the United States of nationals of Yemen as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is hereby suspended.
(h) Somalia.
(i) The Secretary of Homeland Security’s report of September 15, 2017, determined that Somalia satisfies the information-sharing requirements of the baseline described in section 1(c) of this proclamation. But several other considerations support imposing entry restrictions and limitations on Somalia. Somalia has significant identity-management deficiencies. For example, while Somalia issues an electronic passport, the United States and many other countries do not recognize it. A persistent terrorist threat also emanates from Somalia’s territory. The United States Government has identified Somalia as a terrorist safe haven. Somalia stands apart from other countries in the degree to which its government lacks command and control of its territory, which greatly limits the effectiveness of its national capabilities in a variety of respects. Terrorists use under-governed areas in northern, central, and southern Somalia as safe havens from which to plan, facilitate, and conduct their operations. Somalia also remains a destination for individuals attempting to join terrorist groups that threaten the national security of the United States. The State Department’s 2016 Country Reports on Terrorism observed that Somalia has not sufficiently degraded the ability of terrorist groups to plan and mount attacks from its territory. Further, despite having made significant progress toward formally federating its member states, and its willingness to fight terrorism, Somalia continues to struggle to provide the governance needed to limit terrorists’ freedom of movement, access to resources, and capacity to operate. The government of Somalia’s lack of territorial control also compromises Somalia’s ability, already limited because of poor recordkeeping, to share information about its nationals who pose criminal or terrorist risks. As a result of these and other factors, Somalia presents special concerns that distinguish it from other countries.
(ii) The entry into the United States of nationals of Somalia as immigrants is hereby suspended. Additionally, visa adjudications for nationals of Somalia and decisions regarding their entry as nonimmigrants should be subject to additional scrutiny to determine if applicants are connected to terrorist organizations or otherwise pose a threat to the national security or public safety of the United States.
Sec. 3. Scope and Implementation of Suspensions and Limitations. (a) Scope. Subject to the exceptions set forth in subsection (b) of this section and any waiver under subsection (c) of this section, the suspensions of and limitations on entry pursuant to section 2 of this proclamation shall apply only to foreign nationals of the designated countries who:
(i) are outside the United States on the applicable effective date under section 7 of this proclamation;
(ii) do not have a valid visa on the applicable effective date under section 7 of this proclamation; and
(iii) do not qualify for a visa or other valid travel document under section 6(d) of this proclamation.
(b) Exceptions. The suspension of entry pursuant to section 2 of this proclamation shall not apply to:
(i) any lawful permanent resident of the United States;
(ii) any foreign national who is admitted to or paroled into the United States on or after the applicable effective date under section 7 of this proclamation;
(iii) any foreign national who has a document other than a visa — such as a transportation letter, an appropriate boarding foil, or an advance parole document — valid on the applicable effective date under section 7 of this proclamation or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission;
(iv) any dual national of a country designated under section 2 of this proclamation when the individual is traveling on a passport issued by a non-designated country;
(v) any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or
(vi) any foreign national who has been granted asylum by the United States; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
(c) Waivers. Notwithstanding the suspensions of and limitations on entry set forth in section 2 of this proclamation, a consular officer, or the Commissioner, United States Customs and Border Protection (CBP), or the Commissioner’s designee, as appropriate, may, in their discretion, grant waivers on a case-by-case basis to permit the entry of foreign nationals for whom entry is otherwise suspended or limited if such foreign nationals demonstrate that waivers would be appropriate and consistent with subsections (i) through (iv) of this subsection. The Secretary of State and the Secretary of Homeland Security shall coordinate to adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants.
(i) A waiver may be granted only if a foreign national demonstrates to the consular officer’s or CBP official’s satisfaction that:
(A) denying entry would cause the foreign national undue hardship;
(B) entry would not pose a threat to the national security or public safety of the United States; and
(C) entry would be in the national interest.
(ii) The guidance issued by the Secretary of State and the Secretary of Homeland Security under this subsection shall address the standards, policies, and procedures for:
(A) determining whether the entry of a foreign national would not pose a threat to the national security or public safety of the United States;
(B) determining whether the entry of a foreign national would be in the national interest;
(C) addressing and managing the risks of making such a determination in light of the inadequacies in information sharing, identity management, and other potential dangers posed by the nationals of individual countries subject to the restrictions and limitations imposed by this proclamation;
(D) assessing whether the United States has access, at the time of the waiver determination, to sufficient information about the foreign national to determine whether entry would satisfy the requirements of subsection (i) of this subsection; and
(E) determining the special circumstances that would justify granting a waiver under subsection (iv)(E) of this subsection.
(iii) Unless otherwise specified by the Secretary of Homeland Security, any waiver issued by a consular officer as part of the visa adjudication process will be effective both for the issuance of a visa and for any subsequent entry on that visa, but will leave unchanged all other requirements for admission or entry.
(iv) Case-by-case waivers may not be granted categorically, but may be appropriate, subject to the limitations, conditions, and requirements set forth under subsection (i) of this subsection and the guidance issued under subsection (ii) of this subsection, in individual circumstances such as the following:
(A) the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the applicable effective date under section 7 of this proclamation, seeks to reenter the United States to resume that activity, and the denial of reentry would impair that activity;
(B) the foreign national has previously established significant contacts with the United States but is outside the United States on the applicable effective date under section 7 of this proclamation for work, study, or other lawful activity;
(C) the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations;
(D) the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause the foreign national undue hardship;
(E) the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
(F) the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee), and the foreign national can document that he or she has provided faithful and valuable service to the United States Government;
(G) the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;
(H) the foreign national is a Canadian permanent resident who applies for a visa at a location within Canada;
(I) the foreign national is traveling as a United States Government-sponsored exchange visitor; or
(J) the foreign national is traveling to the United States, at the request of a United States Government department or agency, for legitimate law enforcement, foreign policy, or national security purposes.
Sec. 4. Adjustments to and Removal of Suspensions and Limitations. (a) The Secretary of Homeland Security shall, in consultation with the Secretary of State, devise a process to assess whether any suspensions and limitations imposed by section 2 of this proclamation should be continued, terminated, modified, or supplemented. The process shall account for whether countries have improved their identity-management and information-sharing protocols and procedures based on the criteria set forth in section 1 of this proclamation and the Secretary of Homeland Security’s report of September 15, 2017. Within 180 days of the date of this proclamation, and every 180 days thereafter, the Secretary of Homeland Security, in consultation with the Secretary of State, the Attorney General, the Director of National Intelligence, and other appropriate heads of agencies, shall submit a report with recommendations to the President, through appropriate Assistants to the President, regarding the following:
(i) the interests of the United States, if any, that continue to require the suspension of, or limitations on, the entry on certain classes of nationals of countries identified in section 2 of this proclamation and whether the restrictions and limitations imposed by section 2 of this proclamation should be continued, modified, terminated, or supplemented; and
(ii) the interests of the United States, if any, that require the suspension of, or limitations on, the entry of certain classes of nationals of countries not identified in this proclamation.
(b) The Secretary of State, in consultation with the Secretary of Homeland Security, the Secretary of Defense, the Attorney General, the Director of National Intelligence, and the head of any other executive department or agency (agency) that the Secretary of State deems appropriate, shall engage the countries listed in section 2 of this proclamation, and any other countries that have information-sharing, identity-management, or risk-factor deficiencies as practicable, appropriate, and consistent with the foreign policy, national security, and public-safety objectives of the United States.
(c) Notwithstanding the process described above, and consistent with the process described in section 2(f) of Executive Order 13780, if the Secretary of Homeland Security, in consultation with the Secretary of State, the Attorney General, and the Director of National Intelligence, determines, at any time, that a country meets the standards of the baseline described in section 1(c) of this proclamation, that a country has an adequate plan to provide such information, or that one or more of the restrictions or limitations imposed on the entry of a country’s nationals are no longer necessary for the security or welfare of the United States, the Secretary of Homeland Security may recommend to the President the removal or modification of any or all such restrictions and limitations. The Secretary of Homeland Security, the Secretary of State, or the Attorney General may also, as provided for in Executive Order 13780, submit to the President the names of additional countries for which any of them recommends any lawful restrictions or limitations deemed necessary for the security or welfare of the United States.
Sec. 5. Reports on Screening and Vetting Procedures. (a) The Secretary of Homeland Security, in coordination with the Secretary of State, the Attorney General, the Director of National Intelligence, and other appropriate heads of agencies shall submit periodic reports to the President, through appropriate Assistants to the President, that:
(i) describe the steps the United States Government has taken to improve vetting for nationals of all foreign countries, including through improved collection of biometric and biographic data;
(ii) describe the scope and magnitude of fraud, errors, false information, and unverifiable claims, as determined by the Secretary of Homeland Security on the basis of a validation study, made in applications for immigration benefits under the immigration laws; and
(iii) evaluate the procedures related to screening and vetting established by the Department of State’s Bureau of Consular Affairs in order to enhance the safety and security of the United States and to ensure sufficient review of applications for immigration benefits.
(b) The initial report required under subsection (a) of this section shall be submitted within 180 days of the date of this proclamation; the second report shall be submitted within 270 days of the first report; and reports shall be submitted annually thereafter.
(c) The agency heads identified in subsection (a) of this section shall coordinate any policy developments associated with the reports described in subsection (a) of this section through the appropriate Assistants to the President.
Sec. 6. Enforcement. (a) The Secretary of State and the Secretary of Homeland Security shall consult with appropriate domestic and international partners, including countries and organizations, to ensure efficient, effective, and appropriate implementation of this proclamation.
(b) In implementing this proclamation, the Secretary of State and the Secretary of Homeland Security shall comply with all applicable laws and regulations, including those that provide an opportunity for individuals to enter the United States on the basis of a credible claim of fear of persecution or torture.
(c) No immigrant or nonimmigrant visa issued before the applicable effective date under section 7 of this proclamation shall be revoked pursuant to this proclamation.
(d) Any individual whose visa was marked revoked or marked canceled as a result of Executive Order 13769 of January 27, 2017 (Protecting the Nation from Foreign Terrorist Entry into the United States), shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry under the terms and conditions of the visa marked revoked or marked canceled. Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility.
(e) This proclamation shall not apply to an individual who has been granted asylum by the United States, to a refugee who has already been admitted to the United States, or to an individual granted withholding of removal or protection under the Convention Against Torture. Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States.
Sec. 7. Effective Dates. Executive Order 13780 ordered a temporary pause on the entry of foreign nationals from certain foreign countries. In two cases, however, Federal courts have enjoined those restrictions. The Supreme Court has stayed those injunctions as to foreign nationals who lack a credible claim of a bona fide relationship with a person or entity in the United States, pending its review of the decisions of the lower courts.
(a) The restrictions and limitations established in section 2 of this proclamation are effective at 3:30 p.m. eastern daylight time on September 24, 2017, for foreign nationals who:
(i) were subject to entry restrictions under section 2 of Executive Order 13780, or would have been subject to the restrictions but for section 3 of that Executive Order, and
(ii) lack a credible claim of a bona fide relationship with a person or entity in the United States.
(b) The restrictions and limitations established in section 2 of this proclamation are effective at 12:01 a.m. eastern daylight time on October 18, 2017, for all other persons subject to this proclamation, including nationals of:
(i) Iran, Libya, Syria, Yemen, and Somalia who have a credible claim of a bona fide relationship with a person or entity in the United States; and
(ii) Chad, North Korea, and Venezuela.
Sec. 8. Severability. It is the policy of the United States to enforce this proclamation to the maximum extent possible to advance the national security, foreign policy, and counterterrorism interests of the United States. Accordingly:
(a) if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this proclamation and the application of its other provisions to any other persons or circumstances shall not be affected thereby; and
(b) if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid because of the lack of certain procedural requirements, the relevant executive branch officials shall implement those procedural requirements to conform with existing law and with any applicable court orders.
Sec. 9. General Provisions. (a) Nothing in this proclamation shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-fourth day of September, in the year of our Lord two thousand seventeen, and of the Independence of the United States of America the two hundred and forty-second.
DONALD J. TRUMP

 

NBC’S PETE WILLIAMS REPORTS: “Trump to Replace Travel Ban With Revised Requirements”

https://www.nbcnews.com/news/us-news/trump-replace-travel-ban-revised-requirements-n803836

NBC’S veteran Legal Reporter Pete Williams (one of my all-time favorites) reports:

“WASHINGTON — The White House could issue new requirements this weekend for travelers entering the United States, replacing President Donald Trump’s controversial ban on visitors from six Muslim countries, administration officials tell NBC News.

The announcement, expected by Sunday, will supersede the 90-day travel ban on issuing visas to visitors from Iran, Libya, Somalia, Sudan, Syria, and Yemen, which expires Sunday.

The new restrictions will be based on a Homeland Security and State Department review of the kinds of information that must be provided about visitors and immigrants hoping to enter the U.S. The new guidelines are aimed at preventing terrorists and other security threats from entering the country, officials said.

Following the review, the State Department asked U.S. diplomats around the world to gather the information from foreign governments, warning that visitors will be eligible to enter the country only after the requests are fulfilled.

Once those responses came back, Homeland Security and State Departments reported to the White House on which countries agreed to provide the required information and conform to US requirements, and which did not.

Based on that report, the White House is expected to announce the new restrictions, probably in the form of a presidential proclamation, administration officials said. For many countries on the list, visas will be restricted, meaning that only specified categories of travelers can get them.

Any country that flunks the test can get itself off the list by agreeing to conform to the US requirements, which include issuing electronic passports with a photo, regularly reporting passport thefts, and notifying the US of suspected terrorists. Plus countries must also “take measures to ensure that they are not and do not have the potential to become a terrorist safe haven.”

The original White House order, imposed in January, caused chaos in some of the nation’s airports as customs officials were left to interpret the meaning of the surprise order. After it was struck down in court, a revised order was issued in March.

The executive orders have faced a litany of legal challenges. The Supreme Court ruled in June that parts of the current travel ban could be enforced until the court hears argument, on October 10, about whether the president had authority to impose it in the first place.

Lawyers tell NBC News they are unsure what this latest move could mean for the case.”

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I think this action by the Administration is likely to “moot out” the case currently pending before the Supreme Court.  That seems to be the result the Court was “hinting at” when it issued its partial stay earlier this summer.

PWS

09-22-17