⚖️(IN)JUSTICE IN AMERICA 🇺🇸— Why Justice Amy Coney Barrett & A Whole Bunch Of Other Federal Judges 👨🏻‍⚖️👩‍⚖️Who Have “Tuned Out” Humanity Don’t Belong On The Bench!

 

Dan Canon
Dan Canon Esquire
Civil Rights Lawyer, Law Professor, & Writer
Photo: Medium.com

https://medium.com/i-taught-the-law/i-argued-a-shooting-death-case-in-front-of-amy-coney-barrett-89b4165f7df2

Dan Canon writes on medium.com:

. . . .

Perhaps you’ve reserved some optimism for the whole “Barrett’s a mom and a Catholic so there must be some compassion there” thing. Sorry, but no. In her confirmation hearings, she spoke about how the George Floyd video was “very, very personal” for her family, and that she and her children “wept together” over what must have been the zillionth police murder in her history as a lawyer and mother. But her mentor, the late Antonin Scalia, seemed to think it was constitutional to put innocent people to death, despite his ultra-Catholicism. There’s no reason to believe that any sort of ideological consistency will prevail simply because of a judge’s familial status or bizarre metaphysical beliefs, and those factors made no apparent difference in Brad’s case.

Here’s where this gets complicated: In saying that being part of this horrendous decision should disqualify a judge from serving on the Supreme Court, by extension, I’m saying that damn near every federal judge is similarly unqualified. Almost none of them believe that cops should be held accountable for killing mentally ill people who call for help. This sort of thinking, in which cops are extended every benefit of every doubt, feasible or unfeasible, is the norm. Barrett didn’t even write the opinion in Brad’s case. It was written by a liberal judge who, like all her colleagues (of whatever political persuasion), was willing to write the police a blank check. That’s how our courts have operated for decades, and even in a post-BLM society, few of those in robes have the intestinal fortitude to do anything different.

So I am unmoved by Justice Barrett’s faith. I am unmoved by her status as a working mother of seven. I am particularly unmoved by her fake expression of sympathy for George Floyd, whose case she had nothing to do with, when she couldn’t spare any for the people who actually appear before her. I’m unmoved because I’ve seen so little compassion for grieving parents like Matt and Gina throughout my career, from any federal judge, let alone the Federalist Society drones who have lately taken over the judiciary. The basic inability to do what’s right for families like the Kings should be disqualifying. Not just for Amy Coney Barrett, but for the whole lot of ‘em.

A version of this originally appeared in LEO Weekly.

WRITTEN BY

Dan Canon

Civil rights lawyer and law prof, writing about the Midwest, the untold horrors of the justice system, and the ongoing battle between the law and humanity.

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

Read Dan’s complete article chronicling the tone-deaf mishandling of the police shooting death of a young man (his clients’ son) suffering from mental health issues.

This echoes what I’ve been saying on Courtside about the need for a “new breed of better, more progressive Federal Judges” who recognize the compelling human side of the law and why the Constitutional requirements of due process, equal protection, and fundamental fairness are there in the first place. They exist to protect individuals from tyranny and government overreach, not to be ignored, watered down, or woodenly distinguished away to protect government abusers from accountability or to further ideological agendas (primarily, but not exclusively those developed by right wingers) out of touch with the most vulnerable levels of humanity they are supposed to be serving.

Life tenure means that Coney Barrett and the rest of her unqualified colleagues will be around for a long time. But, change needs to start somewhere, now! 

In my experience, internal pushback, dissent, and constant confrontation of the complicit, complacent, judicial status quo with an aggressive implementation of due process, fundamental fairness, and a commitment to human rights and the best interpretations of the law can over time play a critical role in improving the law, changing results, and perhaps most important, saving lives!⚖️🗽👩‍⚖️🧑🏽‍⚖️👨🏻‍⚖️🇺🇸 That, not the hollow ideological agendas of Coney Barrett and others like her, is what “good judging” is really all about!

Intentional lack of compassion, empathy, and humanity (“Dred Scottification” of the “other”) have been themes of Trump, Miller, Wolf, Sessions, Barr, Rosenstein, Nielsen, Pompeo and the other neo-fascist toadies and moral misfits who have gleefully served the regime over the past four years. But, lack of overall resolve and courage to stand up and uniformly and authoritatively “just say no” to these toxic, anti-American, anti-humanity policies and to hold the “perps” accountable for their systemic lawlessness has plagued the Federal Judiciary, with a feckless and often downright complicit Supremes’ majority “leading” the way.

The current sorry state of our democracy, where GOP demagogues, who falsely swore to uphold our Constitution, openly spread lies, knowingly false narratives, and total BS in an attempt to incite violence, undermine our duly elected incoming President, and destroy democratic institutions, including the courts, is in part a reflection of the sad failure of our life-tenured Federal Judiciary to perform its core Constitutional function. That is, to stand up for the Constitution, the rule of law, and individual law human rights in the face failures by the other two branches of Government to uphold their Constitutional responsibilities.

Compare the (finally) unified position of the judiciary on the frivolous election challenges by Trump and his cronies with the failure to stand up for the legal and human rights of asylum seekers, refugees, immigrants, and migrants from the “git go.” Even now, the Courts have failed to sanction Trump and his lawyers for their unethical behavior in bringing frivolous civil suits, with no supporting evidence, for the specific purpose of undermining a free and fair election and using the legal system to attack the legitimacy of the duly elected President-elect and his incoming Administration. “Corruptly weaponizing the law for improper purposes” is clearly inappropriate and unethical. Yet, folks like Rudy and Sydney Powell retain their law licenses and are free to continue to abuse and undermine the system with frivolous litigation.

Dan points to the “ongoing battle between the law and humanity.” That’s the problem! The law should and must be about defending and advancing humanity in the face of tyranny and injustice. We need judges who stand for human justice. For, as MLK, Jr., said “Injustice anywhere is a threat to justice everywhere!”

Better judges for a better America! 🇺🇸Not just a slogan; a requirement for our democracy to survive!

⚖️🗽🇺🇸Due Process Forever!

PWS

01-03-21

🏴‍☠️☠️⚰️KAKISTOCRACY WATCH: AILA Blasts Appointment Of Prosecutors Without Judicial Qualifications To Top Judicial Positions in Billy the Bigot’s Weaponized Anti-Due-Process “Court” System — Dysfunction, Bias, Illegitimate Decisions Run Rampant As Congress, Article IIIs Fail to Enforce U.S. Constitution!

Trump Administration Makes Immigration Courts an Enforcement Tool by Appointing Prosecutors to Lead

CONTACTS:
George Tzamaras
202-507-7649
gtzamaras@aila.org
Belle Woods
202-507-7675
bwoods@aila.org

 

WASHINGTON, DC — The American Immigration Lawyers Association (AILA) condemns the Trump administration’s recent ramp-up of efforts to turn the immigration court system into an enforcement tool rather than an independent arbiter for justice. The immigration courts are formally known as the Executive Office for Immigration Review (EOIR) and are overseen by the Department of Justice (DOJ).

AILA President Jennifer Minear, noted, “AILA has long advocated for an independent immigration court, one that ensures judges serve as neutral arbiters of justice. This administration has instead subjected the courts to political influence and exploited the inherent structural flaws of the DOJ-controlled immigration courts, which also prosecutes immigration cases at the federal level. The nail in the coffin of judicial neutrality is the fact that the administration has put the courts in the control of a new Chief Immigration Judge who has no judicial experience but served as ICE’s chief immigration prosecutor. No less concerning is DOJ’s recent choice for Chief Appellate Immigration Judge – an individual who also prosecuted immigration cases and advised the Trump White House on immigration policy. This administration continues to weaponize the immigration courts for the sole purpose of accelerating deportations rather than dispensing neutral justice. Congress must investigate these politically motivated appointments and pass legislation to create an independent, Article I immigration court.”

Among the recent actions taken by this administration to bias the immigration courts:

More AILA resources on the immigration courts can be found at: https://www.aila.org/immigrationcourts.

Cite as AILA Doc. No. 20070696.

 

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

As a friend and former colleague said recently “I would have thought that the one thing everyone could get behind, regardless of political philosophy, would be a neutral court system.” Sadly, not so in today’s crumbling America.

There are three groups blocking the way:

  • The Trump Administration, where due process only applies to Trump and his corrupt cronies;
  • GOP legislators whose acquittal of Trump against the overwhelming weight of the evidence shows exactly what due process means to them;
  • Five GOP-appointed Justices on the Supremes who don’t believe that due process applies to all persons in the US, notwithstanding the “plain language” of Article 5 of our Constitution — particularly if those persons have the misfortune to be asylum seekers of color.

The end result is “Dred Scottification” — that is, dehumanization or “de-personification” of “the other.” The GOP has made it a centerpiece of their failed attempt to govern, from voter suppression, to looting the Treasury for the benefit of the rich and powerful, to immunity for law enforcement officers who kill minorities, to greenlighting cruel, inhuman,and counterproductive treatment of lawful asylum seekers and immigrants. Not surprisingly, this essentially “Whites Only” view of social justice is ripping our nation apart on many levels.

I find it highly ironic that at the same time we are rightfully removing statutes of Chief Justice Roger Taney, a racist who authored the infamous Dred Scott Decision, Chief Justice Roberts and four of his colleagues continue to “Dred Scottify” asylum seekers and other immigrants, primarily those of color, by denying them the due process, fundamental fairness, fair and impartial judges, and, perhaps most of all, racist-free policies that our Constitution demands! 

Compare the “due process” afforded Trump by the GOP Senate and the pardon of a convicted civil and human rights abuser like “Racist Sheriff Joe” with the ugly and dishonest parody of due process afforded Sister Norma’s lawful asylum seekers whose “crime” was seeking fair treatment, justice, and an acknowledgement of their humanity from a nation that has turned it’s back on those values. 

https://immigrationcourtside.com/2020/07/06/%f0%9f%98%8e%f0%9f%97%bd%e2%9a%96%ef%b8%8fgood-news-9th-cir-deals-another-blow-to-stephen-millers-illegal-white-nationalist-war-on-asylum-now-will-the-supremes-majority-stan/

What Sister Norma’s article did not mention is that those who survive in Mexico long enough to get to “court” have their asylum claims denied at a rate of about 99% by an unfair system intentionally skewed and biased against them. Most experts believe that many, probably a majority, of those being denied actually merit protection under a fair and impartial application of our laws. 

But, as pointed out by AILA, that’s not why Billy the Bigot has appointed prosecutors as top “judges” and notorious asylum deniers as “appellate judges.” He intends to perpetuate a highly unfair “deportation railroad” designed by infamous White Nationalist racist Stephen Miller. In other words, our justice system is being weaponized in support of an overtly racist agenda formulated by a racist regime that has made racism the centerpiece of its pitch for remaining in office. Incredible! Yet true!

The Supremes have life tenure. But, the other two branches of our failing Government don’t. And, a better Executive and a better Legislature that believe in our Constitution and equal justice for all is a necessary start on a better Federal Judiciary — one where commitment to due process, fundamental fairness, and equal justice for all is a threshold requirement for future judicial appointments. Time to throw the “non-believers” and their enablers out of office.

This November, vote like your life and our country’s existence depend on it! Because they do!

PWS

07-07-20

KILLER “COURTS” ☠️☠️☠️☠️☠️👎🏻👎🏻👎🏻👎🏻👎🏻 — “Malicious Incompetence” Or “Criminal Negligence” @ EOIR? — Experts Chase & Dzubow Rip Into EOIR/DOJ Officials For Needlessly Endangering Lives! — Kakistocracy Turns Deadly!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Retired Immigration Judges

https://www.jeffreyschase.com/blog/2020/3/26/like-firing-randomly-into-a-crowd

Hon. Jeffrey S. Chase in Jeffrey S. Chase Blog:

Like “Firing Randomly Into a Crowd”

On March 23, a panel of the U.S. Court of Appeals for the Ninth Circuit issued a sua sponte order in a case pending before it, ordering the Petitioner’s immediate release from detention “in light of the rapidly escalating health crisis, which public health authorities predict will especially impact immigration detention centers.”  In taking such action, the court used its authority to protect those under its jurisdiction.This is what judges and courts are supposed to do.

In contrast, the leadership of EOIR, the agency which oversees our nation’s immigration courts, sees its mission quite differently.  With shocking indifference to those subject to its authority, including its own employees as well as members of the public, EOIR’s present leadership seeks only to please its Department of Justice masters, much like a dog rolling over or playing dead to earn a pat on the head from its owner.

As we all began to comprehend the seriousness of the coronavirus pandemic weeks ago, EOIR refused to close immigration courts out of fear of sending a message contrary to Trump’s statements that the health crisis was a “hoax.”  Christopher Santoro, the coward holding the title of Acting Chief Immigration Judge, ordered court staff to remove CDC-issued advisories on ways to help stop the spread (i.e. by not shaking hands) on the grounds that the immigration judges lacked the authority to hang such notices in their own courtrooms.  In defense of his stupidity, Santoro offered the age-old excuse of the weak: that he was only following orders.

As the virus spread, and people began dying, EOIR kept its courts open far longer than it should have.  An ICE attorney who represented the government throughout a crowded Master Calendar hearing in Newark, NJ on March 13 is presently in a coma in intensive care with COVID-19 fighting for his life.  I’ve heard that an immigration judge in one of NYC’s immigration courts is presently ill with COVID-19 and pneumonia.There have been additional reports of others at immigration detention centers testing positive.

As cities locked down and sheltered in place, EOIR finally agreed to postpone non-detained hearings, but only until April 10.  Hearings in detained courts continue to go forward.And for some reason, non-detained courts that were closed and should have remained so were reopened for the filing of documents only, with such openings announced by nighttime tweets.  On Wednesday night, EOIR tweeted that several courts would “open” the next morning, without explaining whether that meant hearings that had previously been announced as postponed would instead go forward the following morning.As this occurred after business hours, there was no one to call for clarification.  In fact, the opening was only to file documents.EOIR’s leadership (for want of a better term) has decided that all court filings due during the court closings are now due on March 30.Many lawyers in NYC have no way to meet this deadline, as their office buildings have been locked in compliance with the state’s shutdown order.

In order to accept these filings, EOIR is forcing court clerical staff to leave the safety of their homes, disobey the state PAUSE directive and expose themselves and their family members to possible infection in order to report to work.  In NYC, traveling to work for most employees requires riding trains and buses, further increasing the risk of exposure.As schools are closed, how those court staff with child care needs will manage in a time requiring social isolation is unknown.

Furthermore, not all judges hearing detained cases are granting continuances despite the crisis.  EOIR has not informed judges that the present crisis exempts them from meeting their performance metrics, which requires all judges to complete 700 cases per year, and to finish 95 percent of cases on the day of their first-scheduled individual hearing.  Newly hired judges, who are on probation for two years, are therefore being forced to choose between their own job security and the health and welfare of all those who appear in their courts.

In recent days, EOIR has been besieged with letters from health care professionals, law professors, and various legal and advocacy organizations containing strong arguments to do what the Ninth Circuit had done instinctively and without having to be asked.  In one of these letters, attorney George Terezakis, writing on behalf of the New York-based Association of Deportation Defense Attorneys (on whose Board of Directors I sit), described how the mother of a detained respondent who traveled from her home in Long Island to the court in Lower Manhattan by commuter train and subway to file a document for her son’s hearing was later diagnosed with the coronavirus.  Terezakis continued: “Just as someone firing randomly into a crowd of Immigration Judges, court staff, attorneys, interpreters and detainees’ family members will foreseeably and inevitably kill someone…keeping the courts open ensures continued, needless infection, serious illness and death…”The letter continued: “This is a real crisis requiring real leadership to take decisive action that will place the safety of those under its jurisdiction ahead of other concerns.  There is no escaping the inevitable consequences of inaction.”

As for Santoro, “I was only following orders” has historically fared poorly as a defense.  Someone whose name is preceded by the title “Chief Immigration Judge” is required to stand up and take appropriate action in a time of crisis, and accept the consequences of such action.  And for those in EOIR’s leadership chain who refuse to do so, it is incumbent on all of us to do everything in our power to ensure that they will be held fully accountable for their inaction under the next administration.

Copyright 2020 by Jeffrey S. Chase.  All rights reserved. Reprinted with permission.

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

Jason Dzubow
Jason Dzubow
The Asylumist
Hon. Susan G. Roy
Hon. Susan G. Roy
Law Office of Susan G. Roy, LLC
Princeton Junction, NJ
Member, Round Table of Former Immigration Judges

https://www.asylumist.com/2020/03/26/incompetence-and-reckless-at-eoir-endanger-lives/

Jason Dzubow writes in The Asylumist:

The coronavirus is causing unprecedented disruptions to nearly every area of life, and the Immigration Courts are no exception. The courts were already in a post-apocalyptic era, with over one million cases in the backlog, and now the situation has been thrown into near total chaos. The fundamental problem is that EOIR–the Executive Office for Immigration Review, the office that oversees Immigration Courts and the Board of Immigration Appeals–is determined to continue adjudicating cases, even if that means risking the lives of its own employees; not to mention the lives of respondents, witnesses, and lawyers (and anyone who comes into contact with them).

EOIR is closing and re-opening various courts seemingly at random, often times with an after-hours Tweet, such as one last night at 9:23 PM, declaring that the Newark and Seattle Immigration Courts will reopen today for purposes of accepting filings and litigating detained cases (non-detained cases through April 10, 2020 have been postponed). In reaction to this latest news, Susan G. Roy, an attorney and former Immigration Judge (and my friend from law school – Hi Sue!) wrote last night–

NJ has the second highest number of corona virus cases in the nation, second only to NY. The Newark Immigration Court was closed because someone tested positive for the virus. Now a DHS attorney is fighting for his life in ICU, another attorney is very ill, and an interpreter has tested positive. These are the ones we know about. The Court was set to reopen on April 12. That is a reasonable time to ensure that everyone is safe and that the risk of transmission is limited. How is it even remotely reasonable to decide to open TOMORROW? Even if it is only for filings, court staff and others will be forced to violate the Governor’s Executive Order [directing all residents to stay at home], put themselves at great risk, and risk contaminating others, while many people who work in the same building remain under mandatory quarantine. You are ruthlessly jeopardizing the lives of your own employees, not to mention the public, for no legitimate reason.

 

And it’s not just advocates who are upset about EOIR’s decision-making. The National Association of Immigration Judges (“NAIJ” – the judges’ union) and ICE attorneys are also reacting with anger. In response to EOIR’s tweet reopening the courts in Seattle and Newark, NAIJ responds, “Putting our lives at risk, one Tweet at a time.” And Fanny Behar-Ostrow, an ICE prosecutor and president of AFGE Local 511, says of EOIR: “It’s like insanity has taken over the agency,“

The gravity of keeping courts open is reflected in one incident, described in a recent letter from the Association of Deportation Defense Attorneys in New York–

One of our members recently had a detained master calendar hearing scheduled for this past Friday, March 20, at the Varick St. Court. In order to prepare the bond application and for the master, the attorney and his staff met with the client‘s mother. A request for a bond hearing, together with the required relief applications, and a request for a telephonic hearing, were hand delivered to the Court at noon on Wednesday March 18th, 2020. The attorney did not receive any response to the motion for a telephonic hearing, and repeated calls to the court that day and the next went unanswered. To ensure that the Court was aware of the request, the client‘s mother retrieved from the attorney‘s office, Thursday evening, a letter to the court confirming the request for a telephonic hearing. She traveled to the court in Manhattan, from Long Island, and delivered the letter to the Clerk, and thereafter waited in the waiting area with family members of other detainees and other attorneys who were compelled to appear.

Today we received confirmation the client‘s mother has been diagnosed with COVID–19 virus, through medical testing. Can you imagine the number of people she came into contact with as the result of the decision to keep this court open? In addition to exposing the attorney and office staff, she traveled from her home on Long Island, on the Long Island Railroad, to Penn Station, from there to the subway and ultimately to the Court. Undoubtedly she came into contact with, and exposed, countless numbers of people, who in turn exposed countless others.

Anyone with a basic grasp of the fundamental principles of epidemiology – easily garnered from watching CNN or the local evening news – understands how easily this virus spreads. Given this, the decision to continue to keep the courts open can only be construed as a conscious decision on the part of EOIR to subject our Immigration Judges, court staff, interpreters, DHS attorneys, institutional defenders, members of the private bar, our clients, their families, and all whom they come into contact with, to an unreasonable risk of infection, serious illness and death.

NAIJ echoes this sentiment: “With [New York] the epicenter of the virus, DOJ is failing to protect its employees and the public we serve.”

The appropriate path forward is painfully obvious. EOIR should immediately close all courts for all cases. Staff should work remotely when possible to re-set dates and adjudicate bond decisions (so non-criminal aliens who do not pose a danger to the community can be released from detention). That is the best way to protect everyone involved with the Immigration Court system and the public at large.

Finally, I think it is important to name names. The Director of EOIR is James McHenry. I have never been a fan. Mr. McHenry was profoundly unqualified for his job, having gone from supervising maybe half a dozen people in a prior position to overseeing thousands at EOIR. However, he was politically aligned with the goals of the Trump Administration and he got the job. I have previously described the functioning of the agency during Mr. McHenry’s tenure as maliciousness tempered by incompetence. But these days, it is more like maliciousness exacerbated by incompetence. And in the current crisis, incompetence can be deadly. It’s time for Mr. McHenry and EOIR to do the right thing: Close the courts now.

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

  • Thanks, Jeffrey, Jason, and Sue, my friends, for “telling it like it is!” Now is not the time for “go along to get along” bureaucratic responses.
  • Unfortunately, attorneys and court staff might now start paying with their lives for EOIR’s inexcusable two-decade failure to implement a functional e-filing system.
  • As one of my Round Table colleagues said, “Since when is a late night tweet ‘official notice?’” Don’t remember anything about “notice by tweet” in 8 CFR!
  • As I noted previously, J.R. and his tone-deaf, complicit Supremes effectively repealed the “Bivens doctrine,” holding Federal officials responsible for “Constitutional torts” committed outside the scope of their official duties. They thereby essentially gave rogue Federal officials a “license to kill,” at least where the victim was merely an unarmed Mexican teenager. It appears that Barr, McHenry, and others in the “chain of command” are trying out their new “licenses.” They had better hope that J.R. & Co’s “willful blindness” and  unwillingness to stand up for lives and Constitutional rights extend even when American citizen lawyers and court clerks are among the casualties.
  • Not surprisingly, EOIR’s contempt for due process and the lives of asylum seekers, families, children, and other migrants has expanded to include the lives of their own employees and members of the public forced to deal with this godawful, unconstitutional mess.
  • When the reckoning comes, we should not forget the negligent complicity of Congress as well as the Article III Courts for allowing the life-threatening, dysfunctional, unconstitutional mess that EOIR has become continue to operate and to threaten the health, safety, and welfare of all Americans.

PWS

03-27-20

🤡CLOWN CAPITOL:  J.R. PRESIDES OVER GOP CLOWN SHOW HE HELPED CREATE — Empowering The Koch Bros, Suppressing Minority Votes, Enabling GOP Gerrymandering, Ignoring Invidious Racial & Religious Motives, Turning A Blind Eye To Lies & Pretexts, It All Contributed To The Arrogant Display Of GOP Dishonesty & Impunity Now On Public Display In The Senate! — Plus Bonus Friday Mini-Essay: “Profiles in Fecklessness”

https://www.washingtonpost.com/opinions/2020/01/22/sos-please-help-me-worlds-greatest-deliberative-body-falls-pettifoggery/

Dana Milbank
Dana Milbank
Opinion Columnist
Washington Post

Dana Milbank in the WashPost:

S.O.S.! PLEASE HELP ME!’ The world’s greatest deliberative body falls to pettifoggery.

pastedGraphic.png

Chief Justice John G. Roberts Jr. arrives on Capitol Hill on Tuesday. (Sarah Silbiger/REUTERS)

pastedGraphic_1.png

By

Dana Milbank

Columnist

Jan. 22, 2020 at 10:36 p.m. EST

Senate chaplain Barry Black began Wednesday’s session of President Trump’s impeachment trial by praying for God to give senators “civility built upon integrity.”

It was too much to ask.

Just minutes into the session, as lead House impeachment manager Adam Schiff (D-Calif.) presented his opening argument for removing the president, Sen. Rand Paul (R-Ky.) displayed on his desk a hand-lettered message with big block letters pleading: “S.O.S.”

Impeachment trial live updates

In case that was too subtle, he followed this later with another handwritten message pretending he was an abducted child:

“THESE R NOT MY PARENTS!”

“PLEASE HELP ME!”

Paul wrote “IRONY ALERT” on another scrap of paper, and scribbled there an ironic thought. Nearby, a torn piece of paper concealed a crossword puzzle, which Paul set about completing while Schiff spoke. Eventually, even this proved insufficient amusement, and Paul, though required to be at his desk, left the trial entirely for a long block of time.

No one expected senators truly to honor their oath to be impartial. But Paul and some of his Republican colleagues aren’t even pretending to treat the proceedings with dignity.

Minutes before the trial opened in earnest on Wednesday, Paul took Trump up on the president’s stated wish to watch the trial from the “front row.” Paul tweeted a photo of a gallery ticket and said, “Mr. President, would love to have you as my guest during this partisan charade.”

Trump retweeted the message. (Unlike during President Bill Clinton’s impeachment, gallery tickets make no mention of an impeachment trial.)

Some of Paul’s Republican Senate colleagues were only slightly better behaved as the House managers presented the evidence.

Opinion | Trump’s impeachment defense could create a dangerous precedent

President Trump doesn’t have to commit a crime to be impeached, says constitutional law professor Jonathan Turley. (Joy Sharon Yi, Kate Woodsome, Jonathan Turley/The Washington Post)

Marsha Blackburn (Tenn.) and Joni Ernst (Iowa) read press clippings. (Blackburn had talking points on her desk attacking the whistleblower.) Sessions begin with an admonition that “all persons are commanded to keep silence, on pain of imprisonment,” but Ernst promptly struck up a conversation with Dan Sullivan (Alaska), who talked with Ron Johnson (Wis.). Steve Daines (Mont.) walked over to have a word with Ben Sasse (Neb.) and Tim Scott (S.C.), who flashed a thumbs-up.

Lindsey Graham (S.C.) variously shook his head in disagreement with the managers, picked his teeth and yawned. Tom Cotton (Ark.) ordered up a glass of milk, then another, then unwrapped a chocolate bar to share with Ernst. An aisle over, James Risch (Idaho), who fell asleep during Tuesday’s session, talked loudly enough to be heard in the press gallery.

“Mr. Chief Justice, I do see a lot of members moving and taking a break,” said House impeachment manager Jason Crow (D-Colo.), who was trying to speak. “Would you like to take a break?”

“I think we can continue,” replied Chief Justice John Roberts, who had been perusing printouts of emails.

In fairness, the proceedings were lengthy, and tedious. When Schiff, after two hours, uttered the phrase “now let me turn to the second article,” the press gallery erupted in groans. Democrats appeared restless, too; Sen. Bernie Sanders (I-Vt.) slouched low in his chair, head resting on chest, forehead in hand.

Some might have nodded off entirely but for Rives Miller Grogan, a conservative activist who burst into the chamber at 6 p.m. and screamed “Jesus Christ!” before police shoved him out. Grogan’s continued screaming — something about Senate Minority Leader Chuck Schumer (D-N.Y.) being the devil — could be heard in the chamber, where senators, jolted to alertness, shared a bipartisan chuckle.

Roberts only once rebuked the behavior in the chamber. As Tuesday’s session bled into the early hours of Wednesday, impeachment manager Jerrold Nadler (D-N.Y.) warned senators against making a “treacherous vote” for a “coverup.” White House counsel Pat Cipollone, a member of Trump’s defense team, said Nadler “should be embarrassed” and called on the Senate to “land this power trip.”

Roberts, admonishing both sides “to remember that they are addressing the world’s greatest deliberative body,” cited the lofty example of a 1905 impeachment trial when use of the word “pettifogging” — defined as the bickering over trivialities — was disallowed as too pejorative.

Now, the world’s greatest deliberative body has devolved into a palace of pettifoggery.

Nadler was in the penalty box. When a reporter asked a question of Nadler at a news conference Wednesday morning, Schiff interrupted: “I’m going to respond to the questions.” Later, on the floor, a contrite Nadler thanked senators for “your temperate listening and patience last night.”

Patience, however, was in short supply as Schiff and his team made their case. Ignoring the impeachment managers, and the silence requirement, Graham chatted with Sen. John Barrasso (Wyo.). Sen. John Boozman (Ark.) had a word with Sen. John Hoeven (N.D.), while Sen. David Perdue (Ga.) talked with Sen. Ted Cruz (Tex.). And on, and on.

Reading from Federalist 65, Schiff quoted Alexander Hamilton: “Where else than in the Senate could have been found a tribunal sufficiently dignified” to conduct an impeachment trial with “the necessary impartiality”?

Clearly, Hamilton couldn’t have imagined this Senate. S.O.S.!

*********************
And, today, Milbank royally “nailed” the anti-democratic death spiral of American institutions that J.R. and his GOP colleagues have helped create.

https://www.washingtonpost.com/opinions/2020/01/23/john-roberts-comes-face-face-with-mess-he-made/

Impeachment Diary

Opinion

John Roberts comes face to face with the mess he made

Add to list
In an image taken from video, Chief Justice John G. Roberts Jr. presides over the impeachment trial of President Trump on Thursday in the Senate chamber. (Senate TV via AP)
In an image taken from video, Chief Justice John G. Roberts Jr. presides over the impeachment trial of President Trump on Thursday in the Senate chamber. (Senate TV via AP)

 

Milbank doesn’t even get to the absolute unconstitutional carnage and unending human misery the “Roberts Court” has created with its complicity in the Trump regime’s White Nationalist immigration agenda: a religiously-biased “Travel Ban” — fine with us; bogus invocation of “national emergencies” to illegally misappropriate money for a wall and otherwise dump on migrants’ rights — “no problema;” unconstitutional, unnecessary, and inhumane “civil” detention — no need to rush to judgment; illegal rewriting of asylum laws by Executive fiat — “right on;” disenfranchisement of African-American and Hispanic voters — not our problem; unwarranted shooting of an unarmed Mexican teenager by U.S. agent — tough luck, kid, your life is worthless to us; lawless and irrational termination of DACA — let’s let the kids twist in the wind for awhile; lies and pretexts for a racially motivated attempt to undercount people of color in the census — “tisk, tisk, naughty to lie to courts” (but, others among J.R.’s GOP judicial stooges where anxious to sweep the whole thing under the rug), disingenuous pleas by the Solicitor General to short-circuit the normal Federal Court litigation rules for the benefit of the regime — bring it on, and on an on.

Every day, the Trump regime conducts itself with disregard for the law and contempt for Federal Courts. The nation’s largest and, in many ways, most important Federal “court” system — the U.S. Immigration Court — isn’t a “court” at all, within any normal understanding of the word. Its structure and operation is  blatantly unconstitutional — dissing the Due Process requirement for fair and impartial quasi-judicial adjudicators for “enforcement agents in robes” beholden to Chief Trump Toady Billy Barr, and, through him, to DHS Enforcement. J.R. and his “Complicit Five” are above it all.

The only human lives and rights for which the Supremes’ majority evinces any particular concern are the lives of the unborn and the rights of citizens to assault each other with high-power weapons. Only corporations appear to have rights worth protecting under J.R.’s skewed view of America. What’s wrong with this twisted and nonsensical picture of our once-proud legal system?

The only good news: America will have a chance (perhaps out last clear one) to vote at least some of the GOP clowns out of office in November!

Of course, J.R. and his GOP robed sell-outs are immune from accountability and far above the daily unfolding of the unconscionable legal, moral, and human disasters and tragedies they have countenanced and enabled. But, they are not immune from the judgment of history!

The Constitution requires the Chiefie to preside over the rest of the GOP Clown Show and “validate” the pre-announced violation of their oaths as openly biased jurors like Graham, McConnell, Paul, Cruz, and the other GOP Trump toadies have already flaunted in J.R.’s face.

Respect has to be earned. Unless and until the Chiefie starts enforcing the law, upholding Due Process in the face of Trump’s scofflaw behavior, and saving a few lives of the most vulnerable among us, J.R. will see a continued deterioration of his reputation and a harsh historical judgment of his complicity in the face of anti-American tyranny.

As MLK, Jr., once said: “Injustice anywhere is a threat to justice everywhere.” I’m sure that J.R., student of history that he is, has read that quote; but, tragically, it seems to have gone in one ear and out the other! You don’t have to look very far or be #1 in your class at Harvard Law to see the Constitutional mockery and grotesque injustices, not to mention rudeness and inhumanity, taking place in our Immigration Courts, at our borders, and in our overall immigration system every day!

Time to wake up, get involved, and end the Clown Show, Chiefie! That’s what life-tenure is supposed to be about! That’s what courageous and exemplary historical legacies are built upon!

Due Process Forever; Feckless & Complicit Courts, Never!

PWS

01-23-20

HERE’S WHY NIELSEN’S LATEST ATTACK ON REFUGEES AND THE RULE OF LAW COULD BACKFIRE! – ALSO, AN ADDENDUM: “MY MESSAGE TO THE NDPA”

WHY NIELSEN’S LATEST ATTACK ON REFUGEES COULD BACKFIRE

 

  • The Devil is in the Details.” Typical for this group of incompetents, nobody at DHS or in the Mexican Government actually appears to be ready to implement this “historic change.”
  • Expect chaos. After all, the ink wasn’t even dry on Judge Sullivan’s order in Grace v. Whitaker for USCIS to rewrite its credible fear “Policy Memorandum” to comply with law. Want to bet on whether the “credible fear” interviews in Mexico or at the border will be lawful? How about the reaction of Judge Sullivan if they ignore his order? (Nielsen and her fellow scofflaws might want to consult with Gen. Flynn on that one. This is one judge with limited patience for high level Government officials who run roughshod over the law, are in contempt of court, or perjure themselves.)
  • By screwing around with procedures, the Administration opens itself up for systemic challenges in more U.S. District Courts instead of being able to limit litigation to Courts of Appeals on petitions to review individual removal orders.
  • Every “panic attack” by this Administration on the rule of law and the most vulnerable energizes more legal opposition. And, it’s not just within the immigration bar and NGOs any more. “Big Law” and many of the brightest recent graduates of top law schools across the country are getting involved in the “New Due Process Army.”
  • By concentrating asylum applicants at a limited number of ports of entry, pro bono legal groups could actually find it easier to represent almost all applicants.
  • Representation of asylum seekers generally improves results, sometimes by as much as 5X.
  • It could be easier for individuals who are free and authorized to work in Mexico to obtain counsel and prepare their cases than it is for individuals detained in substandard conditions in obscure locations in the U.S.
  • Freed of the intentionally coercive and demoralizing effects of DHS detention, more applicants will be willing to fully litigate their claims, including taking available administrative and judicial appeals.
  • As more cases reach the Courts of Appeals (primarily in the 5th & 9th Circuits) more “real” Article III Judges will “have their eyes opened” to the absolute travesty that passes for “justice” and “due process” in the Immigration Courts under Trump.
  • Shoddily reasoned “precedents” from the BIA and the AG are already failing in the Article III Courts on a regular basis. Three “bit the dust” just within the last week. Expect this trend to accelerate.
  • The 5th and 9th Circuits will find their dockets overwhelmed with Not Quite Ready For Prime Time (“NQRFPT”) cases “dumped” on them by DOJ and EOIR and are likely to react accordingly.
  • The last massive assault on Due Process in Immigration Court by the DOJ under Ashcroft basically caused a “mini-rebellion” in the Article III Courts. There were numerous “remands for redos” and Circuit Court rulings harshly reversing and publicly criticizing overly restrictive treatment of asylum cases by Immigration Judges and the BIA, particularly in the area of credibility determinations. Expect the Circuit Courts to “reverse and revise” many of the current anti-asylum precedents from the BIA and the AG.
  • With almost universal representation, a level playing field supervised by Article III Courts, and all Immigration Judges actually forced to fairly apply the generous standards for asylum enunciated by the Supremes in INS v. Cardoza-Fonseca, and by the BIA in the (oft cited but seldom actually applied) Matter of Mogharrabi, I wouldn’t be surprised to see grant rates for Northern Triangle applicants exceed 50% (where most experts believe they belong).
  • Overall, there’s a respectable chance that the end result of this ill-conceived policy will be an exposure of the rampant fraud, intellectual dishonesty, and disregard for the true rule of law in this Administration’s treatment of bona fide asylum seekers.
  • Inevitably, however, asylum seekers will continue to die in Mexico while awaiting hearings. DHS politicos probably will find themselves on a regular basis before enraged House Committees attempting to justify their deadly, cruel, and incompetent policies. This will be a “culture shock” for those used to the “hear no evil, see no evil” attitude of the GOP House.
  • The Administration appears to have “designed” another of their “built to fail” systems. If they shift the necessary Immigration Judges to the border, the 1.1 million backlog elsewhere will continue to mushroom. If they work on the backlog, the “border waiting line” will grow, causing extreme pressure from the Mexican Government, Congress, and perhaps the Article III Courts. Every death of an asylum seeker (there were three just within the last week or so) will be laid at DHS’s feet.

NOTE TO THE NDPA:

 The outstanding historical analysis by Judge Emmet Sullivan in Grace v. Whitaker illustrates what we already know: For years, the Executive Branch through EOIR has been intentionally applying “unduly restrictive standards” to asylum seekers to artificially reduce the number of grants in violation of both the Refugee Act of 1980 and our international obligations. This disingenuous treatment has particularly targeted bona fide asylum seekers from the Northern Triangle, those asserting claims based on a “particular social group,” unrepresented individuals, women, and children.

Worse yet, this totally cynical and disingenuous Administration is using the intentionally and unlawfully “skewed system” and “illegal denials” as well as just downright fabricated statistics and knowingly false narratives to paint a bogus picture of asylum seekers and their lawyers as the “abusers” and the Government as the “defenders of the rule of law.” What poppycock, when we all know the exact opposite is the real truth! Only courageous (mostly pro bono) lawyers and some conscientious judges at both the Immigration Court and Article III levels are standing up for the real rule of law against a scofflaw Administration and its outrageous plan to send genuine refugees back into harm’s way.

Nowhere in the racially charged xenophobic actions and rhetoric of Trump, Sessions, and Whitaker, nor in the intentionally derogatory and demonstrably dishonest rhetoric of Nielsen, nor in the crabbed, intentionally overly restrictive interpretations of asylum law by today’s BIA is there even a hint of the generous humanitarian letter and spirit of the Refugee Act of 1980 and the 1951 UN Convention on Refugees or the “non-narrow” interpretation of “particular social group” so well described and documented by Judge Sullivan. On the contrary, we can well imagine folks like this gleefully and self-righteously pushing the refugee vessel St. Louis out to sea or happily slamming the door in the face of desperate Jewish refugees from Europe who would later die in the Holocaust.

Now is the time to force the Article III Courts and Congress to confront this Administration’s daily violations of law and human rights. We can develop favorable case precedents in the Article III Courts, block unethical and intentionally illegal interference by the Attorney General with Due Process in Immigration Court, and advocate changes in the law and procedures that will finally require the Executive Branch and the Immigration Courts to live up to the abandoned but still valid promise of “becoming the world’s best tribunals, guaranteeing fairness and Due Process for all.” And, the “all” certainly includes the most vulnerable among us: refugees claiming asylum!

In the end, through a combination of the ballot box, Congress, the Article III Courts, and informed public opinion we will be able to thwart the rancid White Nationalist immigration agenda of this Administration and return honest, reasonable Government that works within the Constitution and governs in the overall best interests of our country to the United States.

Thanks for all you do! Keep fighting the “good fight!”

Go for it!

Due Process Forever! Scofflaw Administration Never!

PWS

12-21-18

SCOFFLAW KAKSITOCRACY: Trump Politicos Were Advised That “Zero Tolerance” & Family Separation Likely Illegal & Unconstitutional – They Went Ahead Anyway!

https://www.washingtonpost.com/news/posteverything/wp/2018/10/25/feature/civil-servants-said-separating-families-was-illegal-the-administration-ignored-us/

Scott Shuchart writes in the Washington Post:

The meeting was way overdue, and it wasn’t going well.

It was May 21. The Department of Homeland Security, where I worked as a senior adviser in the Office for Civil Rights and Civil Liberties, had been making a show of prosecuting undocumented immigrant parents for weeks, cleaving them from their children without paying much attention to where the family members went or setting up any procedure for tracking and reuniting them later.

My office had played a central role, for years, in Homeland Security’s treatment of families and children. But when a cadre of Trump administration political appointees put the family separation plan into motion, neither they nor the career staff in the immigration enforcement agencies under DHS consulted with the civil servants in my office. When media reports throughout April and May led us to understand what was going on, we had urgent questions: What exactly was the policy? What had DHS’s front-line agents in Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) been told to do? How had the department assessed the risk that litigation would interfere with the policy? How was this justified in light of our treaty obligations toward refugees? And why was the department pushing out transparently misleading — or simply false — statistics to justify these steps? We were obliged, under the law that created our office, to register our objections that the administration was knowingly violating people’s rights.

But the top political appointee at the May meeting — John Mitnick, the experienced, Senate-confirmed general counsel — and his deputy seemed confused that the civil rights office would see any cause for concern. The administration was claiming in public that a policy of prosecuting all border crossers didn’t target families as such, so it could not present any legal issues. And if there were any issues, they hadn’t been raised ahead of time.

That was false. The next day, I called around to colleagues who confirmed that there had been multiple interagency phone calls and documents, involving the State and Justice departments as well as DHS, making clear that lawyers throughout the government worried that deliberately separating families could violate migrants’ rights under humanitarian treaties or U.S. law. But the political appointees simply didn’t listen. And a few weeks later, I came across an April 24 memo — signed by the very officials I had met with a month later — acknowledging, but dismissing, the legal risks. Even worse, it encouraged indicting immigrants specifically because doing so would justify separating families, arguing that the government’s “legal position” on “separating adults and children through the immigration process . . . is likely strongest [when] separation occurs in connection with a referral of an adult family member for criminal prosecution.”

Mitnick, through a DHS spokeswoman contacted by The Washington Post, declined to comment for this story. That spokeswoman, Katie Waldman, said: “The Department of Homeland Security does not disclose or comment on privileged legal advice provided by our attorneys to the Secretary or other officials, and therefore, unfortunately, we are not in a position to refute false narratives put forward by a former employee. We note, however, that in order to address the crisis at the border, the Trump Administration made a decision to enforce long-standing U.S. law and refer for prosecution under 8 U.S.C. § 1325(a) adults who crossed into the United States illegally. As we have repeatedly stated, the policy was to enforce the law, not to separate families.”

She also sent a statement from Cameron Quinn, the Trump appointee who runs the office I worked in: “I participated in the meeting in question. It was a brief, general discussion, and Mr. Mitnick made it clear that he desired to work collegially with our office.”

By law, our job in that office was to ensure that “the civil rights and civil liberties of persons are not diminished” by DHS’s programs. When it became clear that the department would be tearing families apart and — thanks to incompetence, dishonesty and sheer disinterest — had no reasonable plan to put them back together, I realized I could not do that. A few weeks after that meeting, I quit my job and left public service, carrying a profound sense of failure.

Children and parents from Central America, part of a caravan trying to reach the United States, wait to apply for asylum in Mexico at a checkpoint in Ciudad Hidalgo on Oct. 20. (Ueslei Marcelino/Reuters)

The government formally announced the family separation policy in April. The point was clear, as several officials later admitted: By threatening to separate their children, the administration hoped to deter Central American asylum seekers from coming here in search of humanitarian protection. Then-Homeland Security Secretary John Kelly had suggested the practice during a CNN interview in March 2017, and it had been gaining support in the White House since then.

Many senior civil servants at DHS believed that the policy violated the civil and human rights of migrants. (Many of them, like me, were trained and licensed attorneys, though our role was to give policy advice, not legal advice.) Crossing the border to surrender immediately to authorities and claim asylum is protected by the United Nations refu­gee protocol signed by the United States. Even for families outside that protection, the substantive due process principle in the Constitution suggests that it is illegitimate to threaten to harm or abscond with someone’s children to deter the commission of a misdemeanor. (First-time unlawful entry is the lowest level of federal crime.)

During past surges in border crossings, such as in 2005, 2006 and 2007 under George W. Bush and 2014 under Barack Obama, the civil rights office was central to planning humane and effective protections for migrants as they were arrested, detained, screened and, if they passed initial “credible fear” screenings, placed into immigration court proceedings. But Trump appointees such as White House adviser Stephen Miller, Attorney General Jeff Sessions, DHS Secretary Kirstjen Nielsen, CBP Commissioner Kevin McAleenan and U.S. Citizenship and Immigration Services (USCIS) Director L. Francis Cissna — along with many deputies, assistants and enablers inside ICE and CBP who dreamed up the “zero tolerance” policy — didn’t consult career experts like me: not when it was being considered last year, not when it was unveiled and not for the critical weeks afterward, even as we begged to share our legal and policy analyses.

My job was to ensure that the government did not violate clearly established individual rights, and the Trump administration was pushing a policy whose principal aim was to do just that. My colleagues and I identified a number of constitutional provisions and related case law holding that parents had rights to due process that could limit the ability of the government to separate them from their children for civil immigration violations. That meant that once parents served their typically short criminal sentences for crossing the border illegally, they should have been reunited with their children. Our research also suggested that threatening to detain children separately, and threatening civil detention generally to deter future conduct, was probably unconstitutional.

In our capacity as a gateway for public complaints about DHS, my office was analyzing hundreds of incidents of family separation, including dozens sent over by career staff at the Department of Health and Human Services, which was taking custody of children who had been separated from their parents. We noticed early that CBP and ICE weren’t providing HHS with proper records to allow families to be reunited or pursue their immigration cases jointly. We recommended that officials tell parents promptly and clearly where their children were going, how they could be reached and how family members could get them out of government custody while the parents were detained. Perhaps most urgently, we tried to ensure that children with serious disabilities were not thrown into a system unprepared to care for them. As allegations emerged of chaotic separations and deliberate lies — parents being told that their children were headed to a shower when they were instead placed in another agency’s custody — we started drafting guidelines and training for the Border Patrol agents on the ground. Above all, we tried to ring the alarm that the legal, strategic and human dimensions of the policy hadn’t been thought through, needed fast improvement and posed a massive liability for the government.

My colleagues and I learned while reviewing internal DHS documents through April and May that CBP had, the previous fall, undertaken a pilot project of prosecuting parents with small children who crossed the border illegally near El Paso, leading to a wave of separated families. But when we asked the acting second-ranking CBP official about it, he denied having any information.

That was also false. The formal memo to Nielsen from CBP, ICE and USCIS recommending the family separation policy had justified it on the basis of this same El Paso project, including misleading statistics that had already been debunked by Vox when DHS tried to pass them off to reporters.

Every attempt to raise civil rights concerns led nowhere: a lengthy staff memo to my boss, the top civil rights official; efforts to explain in meetings the toll on our staff from investigating complaints of children and parents who had been separated, without any communication to get back together; multiple efforts to schedule, and reschedule, a briefing that James McCament, the head of the DHS Office of Policy, had promised near the start of the crisis but never convened. Civil servants advanced recommendations for mitigating the worst of the harm; we suggested improving record-keeping, giving separated parents and children better information, and permitting more regular phone calls among families.

After hundreds of complaints filed by migrant children, parents and advocates on their behalf, my office finally managed to arrange a meeting in June with CBP managers to understand how they were separating families and to present ideas about how to do it in a more humane way, if they insisted on doing it. My notes from the meeting record my boiling frustration with the absurd answers we received. Border Patrol agents dismissed our offer to train them on how to speak to children after ripping them from their families. “No,” we were told, “many of our agents are parents themselves. They are very empathetic to the child’s needs and will know what to do.” Had officials in Washington directed agents to record family members’ names and information, so they could later be reunited? “I think we sent an email.” Can we see the email so we know what agents were directed to do? “Um, I’d have to find it.” (The official never did.) Is there a written policy on how to determine whether children have suffered trauma or have some other condition that would mean separating them from their parents would do too much harm? “No, we have no need for written policy. It’s simply ingrained in law enforcement culture.”

The culture ingrained at CBP, though, is one where the Border Patrol’s union opened its podcast (“The Green Line”) with the oath of the Night’s Watch from “Game of Thrones” — the pledge of a band of warrior monks to protect a magical kingdom from an army of ice zombies. If federal law enforcement agents see Central American children as the moral equivalent of the frozen undead, we can’t expect them to understand intuitively how to detain and process them humanely without training, guidance and leadership. That’s why my colleagues and I were pushing for record-keeping, communication and other policies that Trump appointees ignored. (Representatives of the Border Patrol union did not immediately return requests for comment from The Post.)

A U.S. Border Patrol agent acknowledges a family that had illegally crossed the Rio Grande from Mexico in Fronton, Tex., on Oct. 18. (Adrees Latif/Reuters)

It would be easy to see all this as part of the federal sausage-making, the usual intentional delays and risk-managing memos that bureaucrats deploy. But this level of dishonesty and subterfuge was unusual. This month, the DHS inspector general released a report making clear that the incompetence in managing family separation was pervasive, from a lack of planning, to “information provided to alien parents [that] resulted in some parents not understanding that their children would be separated from them,” to false public claims of having a “central database” of parents and children.

The Department of Homeland Security is filled with excellent, dedicated public servants. But it also has enormous authority and the power to enforce thousands of laws well or badly. Its leaders have a responsibility to give their people orders that they can competently and ethically execute, and the tools and guidance to do so. The family separation crisis represented a new frontier in weaponizing DHS’s authority, and its borderline competence, to disastrous effect. Front-line officers weren’t given enough guidance, and their managers in the field didn’t do enough to help them figure it out. Only the administration’s naivete in failing to predict the bipartisan public outrage kept it from being worse.

But most culpable were the high-level appointees, unwilling to take ownership of what they’d decided to do; lying to their staffs in the expectation that nobody really cared what happened to poor Central American kids; cynical about the notion that most of us who swear an oath to uphold the Constitution actually mean it. I cast about for more to do, but within a month of that June meeting, I realized there was no way to keep my oath and my job.

I quit.

Outlook • Perspective

Scott Shuchart was a senior adviser at the Department of Homeland Security’s Office for Civil Rights and Civil Liberties from 2010 to 2018. He is a non-resident senior fellow at the Center for American Progress. Follow @scottshuchart

*********************************************
Seems like these are precisely the type of knowingly lawless, extra-legal actions that personal liability under the “Bivens doctrine” is supposed to discourage and prevent. It remains to be seen whether the Federal Courts, particularly the Supremes, will have the backbone to hold scofflaw Government officials like Sessions, Nielsen, Miller, & co. personally accountable for their intentional perversions of the rule of law. Recently, the Supremes have indicated that a majority would like to narrowly limit or even abolish Bivens liability.  Just when the country needs it most to rein in an out of control Administration!
PWS
10-29-18

 

LEXISNEXIS: New Suit Highlights How Sessions & Other Trumpsters Knowingly & Intentionally Violate U.S. Asylum Laws!

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/new-legal-filing-links-high-level-trump-officials-to-asylum-turnback-policy—al-otro-lado-inc-v-nielsen

Posted by Dan Kowalski @ LexisNexis:

New Legal Filing Links High-level Trump Officials to Asylum “Turnback Policy” – Al Otro Lado, Inc. v. Nielsen

American Immigration Council, Oct. 16, 2018 – “In a new court filing, asylum seekers and an immigrant rights group are challenging the Trump administration’s policy and practice of turning back asylum seekers at ports of entry along the U.S.-Mexico border. Friday’s filing directly links high-level Trump administration officials to an official “Turnback Policy,” ordering U.S. Customs and Border Protection (CBP) officials to restrict the number of asylum seekers who can access the asylum process at ports of entry. The Turnback Policy compounds other longstanding border-wide tactics CBP has implemented to prevent migrants from applying for asylum in the U.S., including lies, intimidation, coercion, verbal abuse, physical force, outright denials of access, unreasonable delay, and threats—including family separation.

The new filing was brought by the Los Angeles and Tijuana-based organization Al Otro Lado, Inc. and individual asylum seekers who are collectively represented by the Center for Constitutional Rights, the Southern Poverty Law Center, and the American Immigration Council. The attorneys allege that the Trump administration policy and practice violate U.S. and international law and subject vulnerable asylum seekers to imminent danger, deportation, or death.

“Every day we work with survivors of horrific physical and sexual violence, doing our best to provide the necessary resources to extremely vulnerable individuals. They come to our border to seek safety for themselves and their children. The United States, in implementing the Turnback Policy, cavalierly rejects thousands of these individuals, retraumatizing them and stranding them alone and destitute. It is hard to overstate the cruelty with which CBP operates,” said Nicole Ramos, Border Rights Project director at Al Otro Lado.

Attorneys say practices under the Turnback Policy are directly attributable to high-level Trump administration officials, including Attorney General Jeff Sessions and Department of Homeland Security Secretary Kirstjen Nielsen. The filing cites Sessions’ characterization of asylum seekers as deliberately attempting to “undermine our laws and overwhelm our system,” and Nielsen’s reference to the legally required process of receiving and processing asylum seekers at the border as a “loophole.” The filing also quotes U.S. Customs and Border Protection officers as stating, “We have orders not to let anybody in.”

“Internal CBP documents released in this case reveal that high-level CBP officials authorized a Turnback Policy as early as 2016 to restrict the flow of asylum seekers to the U.S-Mexico border,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “The Turnback Policy has escalated under the Trump administration and has been buttressed by a wide range of unlawful tactics that CBP uses to deny asylum seekers access to the protection they deserve.”

Said Baher Azmy, legal director of the Center for Constitutional Rights, “Ever since the horrors of World War II, the world’s nations have committed to giving asylum seekers the opportunity to seek safe haven. The Trump administration has turned its back on this most elementary humanitarian principle, in violation of U.S. and international law, and is subjecting vulnerable men, women and children who are fleeing horrific conditions at home to continued terror, violence and in some cases, death.”

Asylum seekers are fleeing persecution in their home countries, and suffer unspeakable harm en route to the United States at the hands of Mexican government officials, cartels, and gangs. When they are turned away at ports of entry, the lawsuit alleges, they are compelled to either enter the U.S. illegally and be prosecuted, stay trapped in Mexico where they are targeted by criminal groups, or return home to face persecution and death. The filing recounts an extensive array of inaccurate information and abusive treatment those seeking asylum have faced at the hands of U.S. border officials, including that the U.S. is no longer providing asylum or that people from specific countries are not eligible; yelling at, harassing, and assaulting asylum seekers and their children; threatening to take children away from their parents; and setting up “pre-checkpoints” that prevent asylum seekers from reaching the U.S. border. Over four consecutive days in March, CBP officials turned away Guatemalan asylum seekers, saying “Guatemalans make us sick.”

The filing amends a previous filing challenging CBP’s turnbacks of asylum seekers at ports of entry. The challenged practices were initially implemented in 2016 and greatly exacerbated by the Trump administration.

Read the filing here.

For more information, visit CCR’s case page and the American Immigration Council.

American Immigration Council, Oct. 16, 2018 – “In a new court filing, asylum seekers and an immigrant rights group are challenging the Trump administration’s policy and practice of turning back asylum seekers at ports of entry along the U.S.-Mexico border. Friday’s filing directly links high-level Trump administration officials to an official “Turnback Policy,” ordering U.S. Customs and Border Protection (CBP) officials to restrict the number of asylum seekers who can access the asylum process at ports of entry. The Turnback Policy compounds other longstanding border-wide tactics CBP has implemented to prevent migrants from applying for asylum in the U.S., including lies, intimidation, coercion, verbal abuse, physical force, outright denials of access, unreasonable delay, and threats—including family separation.

The new filing was brought by the Los Angeles and Tijuana-based organization Al Otro Lado, Inc. and individual asylum seekers who are collectively represented by the Center for Constitutional Rights, the Southern Poverty Law Center, and the American Immigration Council. The attorneys allege that the Trump administration policy and practice violate U.S. and international law and subject vulnerable asylum seekers to imminent danger, deportation, or death.

“Every day we work with survivors of horrific physical and sexual violence, doing our best to provide the necessary resources to extremely vulnerable individuals. They come to our border to seek safety for themselves and their children. The United States, in implementing the Turnback Policy, cavalierly rejects thousands of these individuals, retraumatizing them and stranding them alone and destitute. It is hard to overstate the cruelty with which CBP operates,” said Nicole Ramos, Border Rights Project director at Al Otro Lado.

Attorneys say practices under the Turnback Policy are directly attributable to high-level Trump administration officials, including Attorney General Jeff Sessions and Department of Homeland Security Secretary Kirstjen Nielsen. The filing cites Sessions’ characterization of asylum seekers as deliberately attempting to “undermine our laws and overwhelm our system,” and Nielsen’s reference to the legally required process of receiving and processing asylum seekers at the border as a “loophole.” The filing also quotes U.S. Customs and Border Protection officers as stating, “We have orders not to let anybody in.”

“Internal CBP documents released in this case reveal that high-level CBP officials authorized a Turnback Policy as early as 2016 to restrict the flow of asylum seekers to the U.S-Mexico border,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “The Turnback Policy has escalated under the Trump administration and has been buttressed by a wide range of unlawful tactics that CBP uses to deny asylum seekers access to the protection they deserve.”

Said Baher Azmy, legal director of the Center for Constitutional Rights, “Ever since the horrors of World War II, the world’s nations have committed to giving asylum seekers the opportunity to seek safe haven. The Trump administration has turned its back on this most elementary humanitarian principle, in violation of U.S. and international law, and is subjecting vulnerable men, women and children who are fleeing horrific conditions at home to continued terror, violence and in some cases, death.”

Asylum seekers are fleeing persecution in their home countries, and suffer unspeakable harm en route to the United States at the hands of Mexican government officials, cartels, and gangs. When they are turned away at ports of entry, the lawsuit alleges, they are compelled to either enter the U.S. illegally and be prosecuted, stay trapped in Mexico where they are targeted by criminal groups, or return home to face persecution and death. The filing recounts an extensive array of inaccurate information and abusive treatment those seeking asylum have faced at the hands of U.S. border officials, including that the U.S. is no longer providing asylum or that people from specific countries are not eligible; yelling at, harassing, and assaulting asylum seekers and their children; threatening to take children away from their parents; and setting up “pre-checkpoints” that prevent asylum seekers from reaching the U.S. border. Over four consecutive days in March, CBP officials turned away Guatemalan asylum seekers, saying “Guatemalans make us sick.”

The filing amends a previous filing challenging CBP’s turnbacks of asylum seekers at ports of entry. The challenged practices were initially implemented in 2016 and greatly exacerbated by the Trump administration.

Read the filing here.

For more information, visit CCR’s case page and the American Immigration Council.

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

It’s a strange system where the victims of law violations are punished while the “perps” — folks like Sessions, Nielsen, Miller, etc — walk free and are allowed to continue their lawless behavior.

Even stranger: A guy like Sessions — a scofflaw “Jim Crow Throwback” if there ever was one — has the absolute audacity to whine, complain, and even threaten when occasionally Federal Judges intervene in relatively limited ways to force him and even Trump to comply with our country’s laws and our Constitution. But, I suppose that’s what free speech is all about. Nevertheless, Sessions’s freedom to express his opinions that mock, distort, and mischaracterize our laws doesn’t necessarily entitle him to act on those opinions in a manner inconsistent with those law.

PWS

10-18-18

SCOFFLAWS OUTED AGAIN: FEDERAL COURTS DELIVER “DOUBLE BODY SLAM” TO TRUMP & SESSIONS ON CHILD SEPARATION, DACA!

Judge slams Trump admin for suggesting ACLU, others should find deported parents

By Tal Kopan, CNN

A federal judge called the Trump administration’s slowness to track down migrant parents it had separated from their children and then deported “unacceptable,” saying the responsibility is “100%” on the government.

The stern admonishment from District Judge Dana Sabraw came a day after the administration argued that immigrant advocacy groups — not the government — should be responsible for tracking down the more than 500 parents it had separated from their children at the border and deported without them.

Sabraw said during a Friday phone hearing that if the government doesn’t track down the parents, it will have “permanently orphaned” their children.

“The reality is there are still close to 500 parents that have not been located, many of these parents were removed from the country without their child, all of this is the result of the government’s separation and then inability and failure to track and reunite,” Sabraw said.

“And the reality is that for every parent who is not located, there will be a permanent orphaned child, and that is 100% the responsibility of the administration,” he added.

Sabraw instructed the administration to name one or two officials to be a single point of command in the reunification effort, and to submit a detailed plan for how they will reunify children with parents either deported or, in a smaller number of cases, released into the US.

“In reviewing the status report it appears that only 12 or 13 of close to 500 parents have been located, which is just unacceptable at this point,” Sabraw said.

More: http://www.cnn.com/2018/08/03/politics/trump-administration-aclu-deported-parents/index.html

 

Judge again says DACA must be restored

By Tal Kopan and Dan Berman

A federal judge on Friday again said the Deferred Action for Childhood Arrivals program should be fully restored.

Judge John Bates said the Trump administration still has failed to justify its proposal to end DACA, the Obama-era program that has protected nearly 800,000 young undocumented immigrants brought to the US as children from deportation.

Bates agreed to delay his ruling for 20 days to give the administration time to respond and appeal, if it chooses.

More (being updated):http://www.cnn.com/2018/08/03/politics/daca-ruling/index.html

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

Basically the Administration is “flicking the middle finger” at Judge Sabraw and his family reunification order. And, they are also doing the same thing to Judge Bates by nonchalantly screwing 800,000 young people, American’s future, without providing any legal rationale.

As a former judge, I actually understand why these judges are letting this “roll off their backs” and focusing on making the Administration solve the problems they created. Judges have to be the “adults in the room” even in an Administration of infantile minds.

But, at some point, a lawyer like Sessions who thumbs his nose at judicial orders and fails to provide any legal support for a litigating position that affects 800,000 American residents should face disciplinary proceedings. Not only has the Administration’s response been unacceptable, but so has the professional and ethical performance of Sessions and his DOJ lawyers. What about “Bivens liability” for Sessions and other Administration officials who knowingly and intentionally violated Constitutional rights in the child separation program, had their attorneys lie to the court about the very existence of the policy,  and refused to take responsibility for fixing it.

Perhaps when this is over. But, then again, maybe not.

PWS

08-03-18

 

WASHPOST CHRONICLES THE TRUMP/SESSIONS SELF-CREATED HUMAN RIGHTS DISASTER — Incredible Cruelty, Incompetence, Bias, & Just Plain Old Stupidity!

https://www.washingtonpost.com/local/social-issues/deleted-families-what-went-wrong-with-trumps-family-separation-effort/2018/07/28/54bcdcc6-90cb-11e8-8322-b5482bf5e0f5_story.html

 

Nick Miroff, Amy Goldstein, and Maria Sacchetti report for the Washington Post:

‘Deleted’ families: What went wrong with Trump’s family-separation effort

5:41
Why hundreds of migrant children are still separated from their parents

Hundreds of migrant children remain in custody after the Trump Administration scrambled to reunite separated families under a court-imposed deadline.

When a federal judge ordered the Trump administration to reunify migrant families separated at the border, the government’s cleanup crews faced an immediate problem.

They weren’t sure who the families were, let alone what to call them.

Customs and Border Protection databases had categories for “family units,” and “unaccompanied alien children” who arrive without parents. They did not have a distinct classification for more than 2,600 children who had been taken from their families and placed in government shelters.

So agents came up with a new term: “deleted family units.”

But when they sent that information to the refugee office at the Department of Health and Human Services, which was told to facilitate the reunifications, the office’s database did not have a column for families with that designation.

The crucial tool for fixing the problem was crippled. Caseworkers and government health officials had to sift by hand through the files of all the nearly 12,000 migrant children in HHS custody to figure out which ones had arrived with parents, where the adults were jailed and how to put the families back together.

Compounding failures to record, classify and keep track of migrant parents and children pulled apart by President Trump’s “zero tolerance” border crackdown were at the core of what is now widely regarded as one of the biggest debacles of his presidency. The rapid implementation and sudden reversal of the policy whiplashed multiple federal agencies, forcing the activation of an HHS command center ordinarily used to handle hurricanes and other catastrophes.

After his 30-day deadline to reunite the “deleted” families passed Thursday, U.S. District Judge Dana M. Sabraw lambasted the government for its lack of preparation and coordination.

“There were three agencies, and each was like its own stovepipe. Each had its own boss, and they did not communicate,” Sabraw said Friday at a court hearing in San Diego. “What was lost in the process was the family. The parents didn’t know where the children were, and the children didn’t know where the parents were. And the government didn’t know either.”

This account of the separation plan’s implementation and sudden demise is based on court records as well as interviews with more than 20 current and former government officials, advocates and contractors, many of whom spoke on the condition of anonymity to give candid views and diagnose mistakes.

Trump officials have insisted that they were not doing anything extraordinary and were simply upholding the law. The administration saw the separations as a powerful tool to deter illegal border crossings and did not anticipate the raw emotional backlash from separating thousands of families to prosecute the parents for crossing the border illegally…

. . . .

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

Read “the team’s” entire much, much more detailed article at the link!  By the end you will be disgusted by this Administrtion’s intentional dehumanization, stunning incompetence, dishonesty, and lack of any sense whatsoever of responsible government or prudent use of taxpayer resources.

No wonder deficits are soaring while essential services are being cut. This Administration consistently and intentionally misuses our taxpayer dollars on counterproductive and totally misguided efforts such as this which have little or nothing whatsoever to do with legitimate law enforcement. And think of the monumental amounts of attorney and court time being wasted because of the Government’s lawless, racially motivated actions! What if these efforts and resources were it toward actually solving problems, rather than creating them?

The Administraton’s explanations don’t make sense. In court before Judge Sabraw, DOJ attorneys have always conceded that intentional separation of children from parents for deterrence purposes would be unconstitutional. They initially claimed that there was no such policy.

But, it’s clear that separating children from parents for deterrence was exactly what Sessions, Nielsen, and others in the Administration intended. Moreover, they had no intention of ever reuniting the children with families, which is why they didn’t bother to set up a system to keep track of them,

This seems like a very clear and intentional violation of our Constitution and lack of candor before a tribunal by Sessions, not to mention failure to fully and in good faith comply with the court’s order. That should lead to civil liability under Bivens or punishment for contempt of court, or both.

Also, seems that the DOJ lawyers who misrepresented the nature of the program their boss was running should be in line for disciplinary action from the District Court and from their respective state bars.  One would only have had to watch a Sessions news clip (as many reporters did) to know that what they were telling the court was untrue or at least required some further explanation from Sessions.

Back to Eugene Robinson. Why are we putting families seeking the protection of the law in jail instead of dishonest, disingenuous scofflaws like Jeff Sessions? Maybe “Ol Gonzo” shouldn’t be up in front of the young neo-Nazis leading “lock her up” chants. What goes around comes around!

And, if I were Judge Sabraw, I might want to know why Sessions was out there leading nationalist chants rather than busting his tail to comply fully with the court’s order for reunification of families.

We need regime change! Vote the scofflaws and their enablers out of office in November! Vote only for candidates pledged to hold Jeff Sessions and the other scofflaws in this Administration accountable for their actions through meaningful oversight (of which there has been none since Trump took office).

PWS

07-28-18

 

 

GONZO’S WORLD: INSIDE JEFF SESSIONS’S “NEW AMERICAN GULAG” – WHERE INHUMANE CONDITIONS, ABUSE OF DETAINEES, HARM TO PREGNANT WOMEN, OVERWHELMED STAFF, LACK OF PROFESSIONALISM, & EVEN DETAINEE DEATHS ARE THE NORM — “We’re putting out fires, just like we were doing before,” said a worker who asked not to be identified for fear of retaliation. “But it’s gone from bad to worse to worst. We cannot take care of these inmates.”

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=2cd55c1f-5d26-489c-b14e-711440e36812

Paloma Esquivel reports for the LA Times:

By Paloma Esquivel

VICTORVILLE — Immigration detainees who were sent to a federal prison here last month were kept in their cells for prolonged periods with little access to the outside and were unable to change their clothing for weeks, according to workers at the facility and visitors who have spoken with detainees.

Staffers at the prison also say they have not been given the proper resources or direction to handle the influx of detainees, putting those in custody as well as workers in danger.

“We’re putting out fires, just like we were doing before,” said a worker who asked not to be identified for fear of retaliation. “But it’s gone from bad to worse to worst. We cannot take care of these inmates.”

The Victorville Federal Correctional Complex is a sprawling federal prison in San Bernardino County that houses thousands of inmates who have been convicted of crimes in federal courts.

By contrast, the immigrants who have been sent there are considered “civil” rather than criminal detainees, meaning they are being held pending the outcome of their immigration cases. Some are asylum seekers; some are fathers who were separated from their children in recent months.

They were sent to the prison in June as part of the Trump administration’s policy of increasingly detaining asylum seekers and immigrants who are in the country illegally until their cases are decided. Federal officials have said using prisons to hold the detainees is a stopgap measure while officials find more holding space.

Officials with the Federal Bureau of Prisons say the facility had beds available because of a decline in the inmate population in recent years, and that it has managed the new population using existing staff, some of whom were reassigned from other facilities.

But workers and people who have been able to visit the detainees say the prison was seriously unprepared for its new role.

The prison, which workers have long complained was short-staffed, is now scrambling to care for hundreds of new detainees from around the world with language, medical and care needs that are very different from those of typical federal prisoners, workers say.

The situation has raised concern among Democratic and Republican lawmakers.

In late June, Rep. Paul Cook (R-Yucca Valley) wrote a letter to U.S. Immigration and Customs Enforcement and the Bureau of Prisons urging officials to increase staffing levels at Victorville to match the increase in population.

“Furthermore, I urge ICE to support and train [prison] staff so they are properly equipped to implement policies and procedures that may be unfamiliar to them when dealing with immigration detainees,” Cook wrote.

Rep. Mark Takano (D-Riverside), who visited the facility July 2, said he saw numerous signs that the prison was struggling to meet detainees’ needs.

“Every detainee group that we met said they had not had a change in clothes since they arrived on June 8. Their bedding had not been switched. They were wearing the same underwear,” Takano said.

Thirteen of the detainees who spoke with Takano and his staff were fathers who had been separated from their children. The men said they had been unable to speak with their children since arriving at the facility.

Detainees also complained of not getting enough food, of being “locked up for long periods of time in their cells” and having very limited access to the outdoors, Takano said.

Prison officials showed Takano a recreation area that he said was nicely equipped. But when he asked one group of detainees whether they were able to use that room, they told him they had been there only once, he said.

“That’s an indicator to me that the prison was not ramped up to be able to accommodate this incursion of detainees. They were understaffed before the detainees arrived, and the arrival of 1,000 detainees I think has fully stressed the staff’s ability to be able to safely oversee their health and safety,” Takano said.

Nearly 1,000 immigration detainees were initially transferred to the prison. As of this week, 656 remained, said ICE spokeswoman Lori Haley.

The complex includes a high-security prison, two medium-security prisons and a minimum-security camp. The detainees are being housed in one of the medium-security prisons. Visits to the facility are tightly controlled.

Workers say one of their biggest concerns is the lack of staff and resources to adequately handle detainees’ medical needs.

There have been three cases of chickenpox and about 40 scabies cases since the detainees arrived.

One worker who spoke to The Times on the condition of anonymity for fear of retaliation said medical workers are stretched so thin they can address only detainees’ most urgent needs.

“We’re not finding illness because we are so rushed,” the worker said. “As patients, they’re not getting the care they need.”

After Takano’s visit, the worker said, detainees were given a change of clothing — but for many of them it was paper gowns normally reserved for inmates with specific medical needs.

Eva Bitran, an attorney for the ACLU who has met with two detainees at the facility, said both men told her they had struggled to get medical care.

One man told her about a button that detainees could push for emergency medical care. When that button was pushed, they were asked: “Are you being raped or are you dying?” When the answer was no, no help would come, the man told her.

One detainee who has since left the facility told The Times that he and others in his unit were locked in their cells for most of the day for the two weeks he was at the prison, with food passed through a small opening in the door.

The man said he was not given a change of clothes during the 14 days he was at the facility and was not able to bathe for the first four days.

In late June, the ACLU sued the Department of Homeland Security and the Bureau of Prisons on behalf of detainees, saying they had been held “incommunicado,” asking the court to order the prison to allow lawyer visits and phone calls.

U.S. District Judge Otis D. Wright II sided with the ACLU and granted a temporary restraining order June 21 requiring the prison to allow detainees to communicate with immigration attorneys and attend “know your rights” workshops.

Haley, the ICE spokeswoman, referred questions about conditions at the prison to the Bureau of Prisons and said ICE was deferring to that agency’s standards on questions of things such as access to time outside of cells and outdoors time.

In an email response to questions from The Times, Bureau of Prisons officials said, “[D]etainees have regular inside and outside recreational opportunities.”

Officials also said that since the detainees’ arrival, 25 medical staff members had been temporarily assigned to help with intake screenings, physical exams and general care.

Regarding the chickenpox and scabies cases, officials said the facility was “taking the necessary precautionary measures to protect staff, inmates and detainees, and the community, from the possibility of being exposed.”

John Kostelnik, president of the American Federation of Government Employees Local 3969, which represents workers at the prison, said that although some medical staffers were briefly assigned to help with the detainees, it was far from enough to meet the need.

He said many problems stem from a lack of direction from officials about how to reconcile standards that are common to federal prisons but aren’t necessarily appropriate for immigration detainees.

“We’re still day by day, making things up as we go,” he said.

As the facility has received increasing scrutiny from political leaders, legal groups and others following the transfer of detainees, Kostelnik said, some things appear to be improving — such as more uniforms.

But the staff is still overtaxed, said Kostelnik, who worries about what might happen if bigger changes don’t come fast enough.

“You have this group of detainees that are starting to get upset,” he said. “You get a large group of individuals that are upset, you have the potential for anything.”

paloma.esquivel@latimes.com

 

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

https://www.cnn.com/2018/07/12/us/georgia-ice-detainee-dies/index.html

Catherine E. Shoichet reports for CNN:

(CNN)Authorities are investigating after an ICE detainee facing possible deportation apparently killed himself.

Efrain De La Rosa, 40, was found unresponsive in a cell at the Stewart Detention Center in Lumpkin, Georgia, on Tuesday night and was later pronounced dead at a hospital, Immigration and Customs Enforcement said.
The apparent cause of death was self-inflicted strangulation, the agency said Thursday, adding that the case is under investigation.
De La Rosa, a Mexican national, was in removal proceedings at the time of his death, ICE said.
The Georgia Bureau of Investigation is investigating the death at the request of the local sheriff. There is no indication of foul play, GBI Special Agent in Charge Danny Jackson said.
A preliminary investigation revealed De La Rosa was alone in an isolation cell at the detention center when officials there found him, Jackson said.
It was not immediately clear why De La Rosa had been placed in isolation.
ICE spokesman Bryan Cox said he could not provide additional comment because an agency review of the death is ongoing.
Amanda Gilchrist, a spokeswoman for CoreCivic, which owns and operates the facility, said the company is fully cooperating with investigators but declined to comment further because of the active investigation.
De La Rosa is the eighth detainee to die in ICE custody in the 2018 fiscal year, the agency said.
De La Rosa’s death comes less than six months after the death of another ICE detainee who had been in custody at Stewart.
Yulio Castro Garrido, a 33-year-old Cuban national, was diagnosed with pneumonia at Stewart and was hospitalized as his condition worsened. He died in January at the Mayo Clinic in Jacksonville, Florida.
And in May 2017, Jean Jimenez-Joseph, a 27-year-old Panamanian national, killed himself in solitary confinement at Stewart.
Immigrant rights groups swiftly criticized the facility as word of De La Rosa’s death spread.
“The deaths and systematic abuse at Stewart are not only tragic, but infuriating,” said Azadeh Shahshahani, legal and advocacy director at Project South.
ICE said it is conducting an agency-wide review of De La Rosa’s death and “is firmly committed to the health and welfare of all those in its custody.”
*********************************************
Ema O’Connor reports for BuzzFeed News:

Four Democratic senators are calling for an investigation into the treatment of pregnant women detained in Immigration and Customs Enforcement (ICE) facilities, following a BuzzFeed News report on several women who said they were mistreated while in immigration detention.

The letter to the Department of Homeland Security Acting Inspector General John Kelly, sent Friday, cites BuzzFeed News’ reporting on the conditions pregnant women in ICE and Customs and Border Patrol custody have faced under the Trump administration, particularly following a new policy issued in December allowing pregnant women to be detained. Under the Obama administration, ICE was ordered to release pregnant women past their first trimester from custody.

“Recent reports cite the inadequate care that pregnant women receive while in ICE custody, pregnant women’s lack of access to medical care, and their heightened vulnerability to sexual assault,” the letter reads. “Given the multiple findings of harmful and substandard conditions of detention for this particularly vulnerable population, we ask that you open an investigation into the treatment and care of pregnant women in ICE detention facilities.”

The letter was organized by Sen. Kamala Harris and signed by fellow Democratic Sens. Patty Murray, Maggie Hassan, and Tom Carper. A spokesperson for Harris’s office told BuzzFeed News that Harris was working “with a group of senators on legislative options to address this as well.”

In a story published Monday, BuzzFeed News related the stories of three women who had miscarriages while in the custody of ICE and Customs and Border Patrol and said they did not receive adequate medical care while pregnant or miscarrying. One woman told BuzzFeed News she was physically abused by CBP officials. All three said they bled for days without medical care and all said they were shackled while pregnant at some point during their detention. Shackling pregnant women is prohibited by ICE’s and CBP’s most recent standards-of-care policies, as well as by a congressional directive.

The report also included interviews with 11 legal, medical, and advocacy workers who work with pregnant detainees in or near detention centers, as well as two affidavits signed under “penalty of perjury” in which a fourth woman described being given clothes so small for her pregnant belly they gave her welts and “pain in [her] uterus.” A fifth woman said she underwent repeated X-rays, despite this being against the Food and Drug Administration’s recommendations and against CBP’s(but not ICE’s) policies for pregnant women.

“Pregnant women have repeatedly described the fear, uncertainty, and exhaustion they experience as a result of being detained,” the senators wrote in Friday’s letter. “Detained pregnant women have stated they experience routine mistreatment, including malnutrition, inadequate bedding, insufficient access to basic medical care, lack of privacy regarding their medical history, and even shackling during transportation for medical care.”

The senators’ letter said there was a 35% increase in the number of pregnant women detained by ICE in the fiscal year of 2017 compared to the year before, under the Obama administration. During that year, ICE detained nearly 68,000 women, 525 of whom were pregnant, the letter stated, and an additional 590 between December 2017, when the policy change was issued, and April 2018.

In June, Harris toured Otay Mesa Detention center, where the three women BuzzFeed News spoke with were held while miscarrying. There, Harris met with mothers who had been separated from their children as a result of the Trump administration’s “zero tolerance” policy, which has triggered national outrage, court cases, and an executive order from President Trump.

  • These human beings aren’t “inmates”
  • They “civil detainees”
  • Their only “crime” is seeking asylum under U.S. and international law
  • Their only mistake: believing that the United States is a nation of laws and human decency, not just another “Banana Republic” as it has become under Trump & Sessions
  • The solution: regime change
  • Another thought:  The problems in civil immigration detention were well-known and well-documented before Sessions and his cronies established the “New American Gulag” to punish, duress, and deter asylum seekers:
    • Shouldn’t that result in eventual successful suits against Sessions for ethical violations and for civil damages for intentionally violating the Due Process rights of asylum seekers?

 

PWS

07-14-18

SARAH MACARAEG @ THE GUARDIAN: U.S. BORDER PATROL HAS KILLED 97 CIVILIANS (INCLUDING SOME US CITIZENS) SINCE 2003!

https://www.theguardian.com/us-news/2018/may/02/fatal-encounters-97-deaths-point-to-pattern-of-border-agent-violence-across-america

SARAH MACARAEG WRITES IN THE GUARDIAN:

For six long years the family of Jose Antonio Elena Rodriguez have been caught in a legal saga seeking justice for the 16-year-old who was killed by a US border patrol agent who fired 16 times from Arizona into Mexico.

Ending criminal proceedings that have dragged on since 2012, a jury last week cleared agent Lonnie Swartz of second-degree murder and could not agree on a verdict for two lesser charges of manslaughter. The shooting has compelled judges up to the US supreme court to deliberate whether the American government can be sued in civil court for wrongful deaths on Mexican soil – placing the incident, and eight other cross-border fatal shootings, at the center of scrutiny surrounding the use of force by agents in response to allegedly thrown rocks.

However, lesser known are similar shootings which have occurred inside the US. Such as that of Francisco Javier Dominguez Rivera, who was shot and killed “execution-style”, in the language of a wrongful death complaint the government paid $850,000 to settle. An Arizona agent responding to an alert from the National Guard in 2007 alleged Rivera threatened him with a rock.

Ten years later, the Department of Justice settled another wrongful death claim involving a rock-throwing allegation in California for $500,000.

The shootings are only part of a larger litany of Customs and Border Protection agency-related violence inside the US. Encounters have proven deadly for at least 97 people – citizens and non-citizens – since 2003, a count drawn from settlement payment data, court records, use of force logs, incident reports and news articles.

From Maine to Washington state and California to Florida, the deaths stem from all manner of CBP activity. Border agents manning land crossings and a checkpoint have used deadly force, as have agents conducting roving patrols – up to 160 miles inland from the border.

Quick guide

The US border patrol force

Pedestrians were run over by agents. Car chases culminated in crashes. Some have drowned, others died after they were pepper-sprayed, stunned with tasers or beaten.

But the majority of victims died from bullet wounds, including shots in the back. The bullets were fired not only by agents conducting border enforcement operations, but also those acting in a local law enforcement capacity and by agents off-duty, who’ve shot burglary suspects, intimate partners and friends.

Among the incidents, one agent also died following an exchange of gunfire with a family member who was found dead. Another agent was killed by friendly fire. Border agents sustained non-deadly shots in two incidents.

The picture compiled from official documents and news reports is incomplete, but indicates that at least 28 people who died were US citizens. Six children, between the ages of 12 and 16, were among the victims whose ages were disclosed.

The federal government has paid more than $9m to settle a fraction of the incidents thus far. A Customs and Border Protection spokesperson did not comment on those cases but pointed to the agency’s National Use of Force Review Board, which has investigated 30 significant incidents since June 2015. Each of its 17 reports made public have found the use of force to be compliant with agency policy in effect at the time. Local boards also review incidents, but only those that do not result in serious injury or death.

Here, the Guardian looks at eight fatal encounters with CBP agents that happened inside the United States and the larger patterns of incidents to which they relate.

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

Read the complete article at the link.

Of course, there are two sides to every story. Many of the incidents were found to have involved “justified use of force.” Others appeared to be tragic accidents.

Nevertheless, three things are clear from this account: 1) the Border Patrol needs more supervision and accountability for its actions; 2) that’s not going to happen under the “anything goes” attitude of the Trump Administration, any more than it did under the Bush or Obama Administrations, and 3) Congress has once again been AWOL on this issue.

PWS

05-02-18

 

FEDERAL COURTS DELIVER ANOTHER BIG HIT TO ADMINISTRATION SCOFFLAWS ON IMMIGRATION: Attempt To Violate Detainee’s Constitutional Right To Abortion Thwarted!

https://www.washingtonpost.com/local/public-safety/us-judge-orders-government-to-allow-abortion-access-to-detained-immigrant-teens/2018/03/30/19e9fcf8-3128-11e8-94fa-32d48460b955_story.html

A federal judge issued a nationwide order temporarily preventing the government from blocking access to abortion services and counseling for teens detained in immigration custody, saying current administration policy and practices probably are unconstitutional.

The order came in a case brought last fall on behalf of a Central American girl in a ­government-funded shelter that set off a national debate over the constitutional rights of such undocumented teens to terminate their pregnancies.

The late Friday ruling, by U.S. District Judge Tanya S. Chutkan of Washington, allowed the case to proceed as a class action on behalf of any other teens who have crossed the border illegally and while in federal custody may want to seek abortion services. In filings, the U.S. government acknowledged there were at least 420 pregnant unaccompanied minors in custody in 2017, including 18 who requested abortions.

The Trump administration has refused to “facilitate” such procedures for pregnant teenagers traveling alone on the grounds that they had the option to voluntarily return to their home countries or to find private sponsors in the United States to assist them in obtaining procedures.

The policy position marked a departure from that of the Obama administration, whose Office of Refugee Resettlement did not block immigrants in U.S. custody from having abortions at their own expense, and paid for services for teens in cases of rape, incest or a threat to the woman’s life.

In her 28-page opinion, Chutkan, a 2014 Obama appointee, said the change in policy posed irreparable harm to pregnant teens, writing that “ORR’s absolute veto nullifies a UC’s right to make her own reproductive choices,” referring to unaccompanied children.

“The court concludes that ORR’s policies and practices infringe on female UC’s constitutional rights by effectively prohibiting them from ‘making the ultimate decision’ on whether or not to continue their pregnancy prior to viability — a quintessential undue burden,” the judge wrote.

A Justice Department spokesman did not immediately comment on the ruling.

The American Civil Liberties Union, representing the teens, expressed relief at the court action.

“The Trump administration’s cruel policy of blocking young immigrant women in federal custody from accessing abortion is a blatant abuse of power,” Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a statement. “With today’s rulings, we are one step closer to ending this extreme policy once and for all and securing justice for all of these young women.”

In all, four pregnant teens in custody have asked Chutkan to force the administration to stop blocking access to abortion services. The initial case involving the teen in Texas is still pending in the Supreme Court after the Justice Department took the unusual step of asking the justices to consider disciplining the teen’s lawyers.

Abortion rights advocates and some Democrats in Congress have called for the firing of E. Scott Lloyd, the head of the refu­gee resettlement office within the Department of Health and Human Services. Court records show that Lloyd has personally intervened to try to block abortion services.

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

Read the full article at the above link.

Hard to figure out why guys like E. Scott Lloyd and Jeff Sessions shouldn’t be both 1) fired, and 2) held personally liable under Bivens for knowing and intentional violations of constitutional rights.

PWS

03-31-18

 

STEVE VLADECK: How U.S. Courts Undermine Our Constitution — A Constitution Without Remedy For Violations Is An Empty Document!

https://www.nytimes.com/2018/03/27/opinion/increasingly-unenforceable-constitution.html

Vladeck writes in a New York Times op-ed:

For all of the attention that we pay to our constitutional rights, we devote stunningly little attention to the more legalistic — but no less important — topic of how those rights are enforced. And as a largely unnoticed rulinglast week by the full United States Court of Appeals for the Fifth Circuit demonstrates, the Supreme Court has quietly made it all but impossible for most victims of constitutional violations by the federal government to obtain relief.

Not only is this development antithetical to the core purpose of having an independent judiciary, but it will almost certainly lead to more unconstitutional conduct by even the most well-meaning federal officers, who, in most cases, no longer have to seriously worry about the specter of judicial review.

Image
Maria Guadalupe Guereca’s son was shot dead in Mexico near the border by a patrol agent on the U.S. side.CreditYuri Cortez/Agence France-Presse — Getty Images

The case that the New Orleans-based federal appeals court ruled on involved the fatal cross-border shooting of an unarmed 15-year-old Mexican national on Mexican soil by a United States Border Patrol agent standing on American soil. The family of the victim, Sergio Hernández, sued the responsible agent, Jesus Mesa, claiming that the shooting was unprovoked and violated the teenager’s rights under the Fourth and Fifth Amendments. Whether the Constitution protects a foreign national standing on foreign soil in a case like this is an interesting and still-open question. But rather than resolving that issue, the Court of Appeals held, by a 13-2 vote, that it didn’t matter; even if the shooting violated clearly established constitutional rights, the majority concluded, the federal courts should not recognize a remedy of damages for fear of intruding upon the legislative and executive branches of government.

. . . .

That’s a troubling conclusion, because government officers like Agent Mesa will have less of a reason to worry about the constitutional rights of those with whom they interact. But at a deeper level, our constitutional rights aren’t worth all that much if there’s no mechanism for enforcing them. One can only hope that sometime soon the Supreme Court comes to its senses and agrees.

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

Go on over to the NYT at the link for the full op-ed.

I decried the Fifth Circuit’s dereliction of duty in a recent blog focusing on the much more persuasively reasoned and powerful dissent by Judge Edward Prado.  But, only one of his other 14 black-robed Ivory Towerists were willing to join Judge Prado, step up to the plate, and defend our constitutional rights. What kind of folks and jurists are getting these lifetime sinecures just to avoid controversy and not to stand up for what’s right?

Yup. Today it’s just some Mexican kid (who also happened to be a human being and someone’s son) who was shot by the Border Patrol. But, tomorrow it might be your son or daughter or you yourself whose rights are violated. And, who is going to step up and vindicate your constitutional rights? Certainly not the 13 judges of the Fifth Circuit majority in Hernandez v. Mesa who looked for and found ways to avoid their collective duty to uphold our Constitution.

PWS

03-29-18

JUDGE EDWARD C. PRADO DISSENTS FROM 5TH CIRCUIT’S ABANDONMENT OF CONSTITUTION IN BIVENS CASE — HERNANDEZ V. MESA

Hernandezv.Mesa,Bivens,5th

Hernandez v. Mesa, 5th Cir., 03-20-18, published

On remand from the U.S. Supreme Court

BEFORE 5TH CIRCUIT EN BANC:  STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, and COSTA, Circuit Judges.

MAJORITY OPINION: EDITH H. JONES, Circuit Judge, joined by STEWART, Chief Judge, JOLLY, DAVIS, SMITH, DENNIS,** CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES,*** HIGGINSON, and COSTA, Circuit Judges.

** Judge Dennis concurs in the judgment.
*** Judge Haynes concurs in the judgment and with the majority opinion’s conclusion that Bivens should not extend to the circumstances of this case.

DISSENTING OPINION: EDWARD C. PRADO, Circuit Judge, joined by GRAVES, Circuit Judge, dissenting.

EXCEPTS FROM JUDGE PRADO’S DISSENT:

“Today’s en banc majority denies Sergio Hernandez’s parents a Bivens remedy for the loss of their son at the hands of a United States Border Patrol agent. The majority asserts that the transnational nature of this case presents a new context under Bivens and that special factors counsel against this Court’s interference. While I agree that this case presents a new context, I would find that no special factors counsel hesitation in recognizing a Bivens remedy because this case centers on an individual federal officer acting in his law enforcement capacity. I respectfully dissent.

. . . .

In sum, this Court is more than qualified to consider and weigh the costs and benefits of allowing a damages action to proceed. This case simply involves a federal official engaged in his law enforcement duties acting on United States soil who shot and killed an unarmed fifteen-year-old boy standing a few feet away. I would elect to recognize a damages remedy for this tragic injury. As Chief Justice John Marshall wrote, “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison, 5 U.S. 137, 163 (1803). In this case, I would recognize a Bivens remedy for this senseless cross-border shooting at the hands of a federal law enforcement officer. Therefore, I respectfully dissent.”

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

Judge Edward C. Prado is nor just “any” U.S. Circuit Judge. Among other things in his long and distinguished career, Judge Prado was the U.S. Attorney for the Western District of Texas during the Reagan Administration. I dealt with him on some immigration issues during my as the Deputy General Counsel in the “Legacy INS” during that time.  He is a gentleman and a scholar.

Perhaps appropriately, this is likely to be Judge Prado’s last major published opinion. On March 22, 2018, he was confirmed by the Senate as the U.S. Ambassador to Argentina. Congratulations Ambassador Prado; thanks for leaving us this great dissent as a reminder of how the law should be interpreted and applied!

PWS

03-25-18

 

 

Supremes Drop Back, Boot It Deep, J. Gorsuch Calls For Fair Catch, Play To Resume In Fall Quarter! — I.O.W. They “Punted” The 3 Remaining Immigration Cases On The Fall 2016 Docket!

Actually, only two of them”went to Gorsuch,” that is, were set for re-arguement next Fall, presumably because the Justices were tied 4-4. The other case was kicked back to the 9th Circuit to reconsider in light of Ziglar v. Abbasi, the Court’s recent decision on “Bivens actions.” Here’s a link to my prior Ziglar blog:

http://immigrationcourtside.com/2017/06/19/relax-cabinet-members-supremes-say-no-monetary-damages-for-unconstitutional-acts-ziglar-v-abbasi/

You can read all about it over on ImmigrationProf Blog in a short article by Dean Kevin Johnson at this link:

http://lawprofessors.typepad.com/immigration/2017/06/supreme-court-ends-2016-term-with-three-immigration-decisions.html

 

PWS

06-26-17