Terrorism – Page 8 – immigrationcourtside.com

N. Rappaport On GOP’s “Extreme Enforcement” Initiatives!

http://thehill.com/blogs/pundits-blog/immigration/334554-republicans-are-preparing-extreme-immigration-measures

Nolan writes in The Hill:

“Highlights from Labrador’s summary of the Davis-Oliver Act.

It provides states with congressional authorization to enact and enforce their own immigration laws to end the executive branch’s ability to unilaterally shut down immigration enforcement.
It withholds certain federal grants from jurisdictions that refuse to honor immigration detainers or prohibit their law enforcement officers from giving immigration-related information to U.S. Immigration and Customs Enforcement (ICE).
Jurisdictions that refuse to honor detainer requests and release criminal aliens may be sued by the victims of crimes the aliens commit after they are released.
It makes membership in a criminal gang grounds for deportation.
It requires background checks to be completed before immigration benefits can be granted.
Criminalization of undocumented aliens.

Section 314 makes crimes out of illegal entry and unlawful presence. If an offender does not have three misdemeanor convictions or a felony conviction, a first offense can result in imprisonment for up to six months. Subsequent offenses can result in imprisonment for up to two years.

If the alien has three misdemeanor convictions or a felony conviction, however, the term of imprisonment can be up to 20 years. This is not as harsh as some of the criminal provisions which are in the Immigration and Nationality Act (INA) already. Smuggling an alien into the country or helping one to remain here unlawfully (harboring) may “be punished by death or imprisoned for any term of years or for life” if it results in the death of any person.

Home free magnet.

President Obama created what I call the “home free magnet”, when he focused enforcement on undocumented aliens who had been convicted of serious crimes or had been caught near the border after making an illegal entry. Aliens wanting to enter the United States illegally knew that they would be safe from deportation once they had reached the interior of the country.

This attracted undocumented aliens and became a powerful incentive for them to do whatever was necessary to enter the United States. President Trump destroyed this magnet with tough campaign rhetoric and his executive order, Enhancing Public Safety in the Interior of the United States, which greatly expands Obama’s enforcement priorities.

. . . .

Perhaps the Democrats should consider supporting a modified version of the Davis-Oliver Act in return for Republican consideration of a modified legalization program and other measures that are important to the Democrats.

A similar agreement was the basis for the Immigration Reform and Control Act of 1986 (IRCA), which made legalization available to millions of undocumented aliens in return for interior enforcement measures and border security.

The Republicans can deport most of the undocumented aliens in the country if they choose to do so, but it would take a long time and would be very expensive politically as well as financially.

They might be willing to consider a legalization program that is based on American needs, such as preventing citizen and lawful permanent resident families from being broken up and providing needed foreign workers for American employers.”

It could be limited to temporary lawful status while background investigations are being conducted. Greg Siskind and I suggested a way to do this in, “Pre-Registration: A Proposal to Kick-Start CIR.”

To be truly comprehensive, immigration reform has to include effective enforcement measures and time for putting together such a bill is running out.

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Read Nolan’s complete article over on The Hill at the above link.

Having served during the Obama Administration (as well as others from both parties) I disagree with Nolan’s characterization of Obama as having a “home free” policy. At least since the summer of 2014, no characterization could be further from the truth!

Beginning in the summer of 2014, the Obama Administrations, quite unwisely in my view, “prioritized” the cases of recent arrivals at the Southern Border. By taking these cases out of sequence, and totally out of proportion to any “threat” they posed, the Obama Administration’s policy of Aimless Docket Reshuffling (“ADR”) helped create an Immigration Court backlog that now approaches 600,000 cases, notwithstanding relatively “flat” receipts and actual increases in the number of sitting judges.

While eliminating the “recent arrivals priority,” the Trump Administration’s essentially “random” enforcement policy, lacking in any type of restraint or rationality, has actually made things much worse. As backlogs mushroom, the “home free” problem is actually more significant, although with a pronounced degree of randomness and irrationally. In other words, total docket chaos in Immigration Court.

While the threat of more “expedited removals,” which evade the Immigration Courts, does hang over the system, the procedures have not actually been implemented. Moreover, contrary to Nolan’s suggestion, there is no chance that the GOP will be able to remove more than a small fraction of the approximately 11 million undocumented aliens in the U.S. Yes, arbitrary enforcement does produce some “terrorism” effect by making everyone feel unsafe. Perhaps a relatively small number of undocumented residents will give up and leave (or try to enter Canada). Nevertheless, there is no practical way that 11 million individuals actually could be removed.

The GOP would do much better to sign on to immigration reforms that would give some type of legal status (not necessarily green cards) to most of those already here, while expanding legal immigration opportunities across the board. The resulting system would actually reduce pressure on the border while making interior enfircement more of a practical possibility than it has been at any time during the last for decades. But, that would take a thoughtful, practical, non-xenophobic, approach — something that has eluded the GOP in the years since the Reagan Administration.

Look for folks like Labrador & Goodlatte to work with the Adminstration to create a complete “train wreck” in the immigration enforcement system.

PWS

05-22-17

ROGUE! — Will Push To Hire More DHS Agents Weaken National Security With More “Bad Apples?” — “Haste Makes Waste” Governing Has Real Life Consequences!

https://www.nytimes.com/2017/05/20/us/politics/border-patrol-immigration-trump.html?hpw&rref=politics&action=click&pgtype=Homepage&module=well-region®ion=bottom-well&WT.nav=bottom-well

Ron Nixon reports in the NYT:
“BROWNSVILLE, Tex. — Joel Luna was just the kind of job candidate the Border Patrol covets. He grew up on both sides of the border, in Mexico and South Texas. He participated in the Reserve Officers Training Corps in high school and later served in the Army, seeing combat in Iraq.

Mr. Luna joined the agency as part of a hiring surge that began under the George W. Bush administration, patrolling a rural area about 100 miles north of Mexico. But six years later, his decorated career came to a shocking end: He was arrested and charged with helping to send illegal weapons to Mexico and ship drugs into the United States. He was convicted in January and sentenced to 20 years in prison.

Now, as President Trump plans a similar hiring surge at the Border Patrol, Mr. Luna’s case is casting a large shadow. The president wants to make 5,000 new hires, under a streamlined process that critics fear could open a door to other rogue agents like Mr. Luna.

Agency officials, some members of Congress and the Border Patrol union say the current process has made it too hard to hire agents. It typically takes more than a year to vet candidates and get them on the job.

At the center of this notoriously slow and stringent process — which Customs and Border Protection, the patrol’s parent agency, put in place after a number of corruption cases — is a mandatory polygraph test. Officials are considering changing the test, and in some cases the agency would simply waive it.

“C.B.P. has a big problem in not being able to hire agents because of the polygraph test,” said Senator Jeff Flake, Republican of Arizona, who has sponsored the legislation to make hiring agents easier and faster. “I’m not saying that we should get rid of the polygraph, but we want to make sure the process isn’t an overall detriment to good candidates.”

Three weeks ago, the agency began using a different lie detector test that takes less time than the current one and asks fewer questions. And legislation moving through Congress would grant the agency the authority to waive the polygraph for some former law enforcement officers and military veterans.
Top officials said the changes would allow the agency, which is losing agents faster than it can replace them, to compete for qualified candidates with other law enforcement agencies more effectively without sacrificing standards. Applicants would still undergo a background check in addition to the shorter polygraph test, officials said.

“No one wants corrupt agents inside the Border Patrol,” said Jayson Ahern, a former acting commissioner of Customs and Border Protection. “What C.B.P. is proposing is a sensible way to weed out corruption but speed up the hiring.”

But some current and former Department of Homeland Security officials said the proposed changes could expose the agency to corrupt individuals who could use their position to help drug cartels or human smugglers. Border Patrol agents work largely by themselves in isolated areas and are routinely targeted by criminal organizations.”

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How many times have we seen this pattern: scandal, followed by reform? Time goes by, and we forget the scandal. But, “best practices” can be burdensome. So someone proposes a “streamlined” process which recreates the conditions for scandal. And the cycle begins again.

Ironically, the risk to American security from corrupt DHS agents probably exceeds the risk from the undocumented entries that additional hastily hired agents are supposed to be preventing. The border today is probably under better control than at any other point in my lifetime. But, corrupt border agents can be co-opted by terrorists, narco traffickers, and human smugglers, all of whom “pay” much better than the USG. So, taking time to make sure the folks we’re hiring for these key jobs have the “right stuff” makes sense to me. Also, how about raising their pay to reflect their important, challenging (and dangerous) mission and to reduce turnover?

PWS

05-21-17

DANGEROUS MISSION: 2 UN Investigators Killed In DRC!

https://www.nytimes.com/2017/05/20/world/africa/congo-zaida-catalan-michael-j-sharp-united-nations-democratic-republic-of-congo.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news

The NY Times reports:

“Zaida Catalán was on to something, and it was making her jumpy.

“Exciting development,” she scribbled in her diary in late January. “I can maybe nail this bastard. Damn!”

Weeks later, Ms. Catalán, a United Nations investigator with little training and no safety equipment or even health insurance, headed into a remote area teeming with militia fighters to find the culprits behind a massacre in the Democratic Republic of Congo.

A grainy cellphone video shows what happened next: A cluster of men with rifles and red bandannas lead Ms. Catalán, a 36-year-old Swedish-Chilean, into a grove with her American colleague, Michael J. Sharp, 34. The two investigators are barefoot.

Mr. Sharp starts arguing. He and Ms. Catalán are forced onto the ground. Suddenly, shots are fired, hitting Mr. Sharp first. Ms. Catalán screams and tries to run for cover. She is shot twice.

Their bodies were discovered weeks later in a shallow grave, laid out carefully, side by side, in opposite directions. Ms. Catalán had been decapitated. Her head had been taken.

Their deaths raise tough questions about the United Nations and its work in the most dangerous places in the world. Almost two months passed before the United Nations even assembled a panel to look into what went wrong. The United Nations Security Council could go further and order a more formal investigation, but more than two months after the murders, it has taken no steps in that direction.

Instead, it has left the investigation to Congo, a nation where violence, corruption and impunity are so widespread that the United Nations has had to spend billions of dollars over the years in a failed effort to bring peace and stability. Indeed, a big focus of Ms. Catalán and her colleagues was whether the Congolese government played a role in the massacre and broader chaos she was investigating.

“The U.N. needs to take ownership,” said Akshaya Kumar, a deputy director at Human Rights Watch. She added that the Congolese authorities, who are implicated in the region’s conflict, were in no position to carry out a credible investigation.

The killings have also stirred a sharp debate over the United Nations’ responsibility to prepare and protect the people it hires to investigate wrongdoing around the world. Ms. Catalán and Mr. Sharp belonged to a panel of six experts authorized by the Security Council to investigate rapes, massacres and the exploitation of Congo’s vast natural resources.”

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Sometimes we forget or minimize the great dangers faced by those fighting for human rights throughout the world.

Probably the most vivid personal example in my career was the untimely death of noted human rights activist and attorney Arthur Helton in Iraq. During my “Legacy INS” career I opposed, and probably helped depose, Arthur in a number of vigorously litigated Federal Court cases. But, I always considered Arthur a gentleman, a scholar, a person of great principle and integrity, and a most worthy opponent. His death was indeed a shock. In 2004, the American Society of International Law established the Arthur Helton Fellowship in his memory.

LEGISLATION: House GOP Takes The Low Road — Eschews Compromise — Goes For Enforcement Overkill!

http://www.cnn.com/2017/05/18/politics/immigration-bill-house-committee/index.html

Tal Kopan reports for CNN:

“Washington (CNN)Democrats and Republicans on Thursday faced off over immigration policy as a House committee began considering a set of immigration bills that Democrats say would amount to the creation of a “mass deportation force.”

Proponents of the first bill under consideration by the House judiciary committee — named after two law enforcement officers who were allegedly murdered by an undocumented immigrant — advocated for the bill as important to public safety and rule of law.
But Democrats on the committee decried the bill as an unnecessarily harsh anti-immigrant push by President Donald Trump.
“Proponents of this bill say that it’s necessary to keep us safe, but what the bill really does is pander to the noxious notion that immigrants are criminals and should be dealt with harshly,” said immigration subcommittee ranking member Zoe Lofgren, a California Democrat. “This bill gives Trump and (adviser Steve) Bannon the legislation to establish their mass deportation force. … This bill should really be called the ‘Mass Deportation Act,’ because that’s what it is.”
Judiciary Chairman Bob Goodlatte said the bill was not intended to target immigrants, but to “respect the rule of law.”
“This is simply a bill that gives any administration, the current one and future ones, the authority to enforce our laws properly, and gives to state and local governments … the ability to participate in that enforcement,” Goodlatte said.
The committee was set to mark up three Republican bills related to immigration on Thursday — one that would vastly expand the role of state and local jurisdictions in immigration enforcement and two others that would authorize immigration components of the Department of Homeland Security.
But by mid-afternoon, the committee recessed until next week after only making its way through two amendments. Both were brought by Democrats to strike portions of the bill, and after lengthy debate, both were rejected by the Republican majority committee. Democrats were expected to continue bringing a number of similar amendments when the markup continues on the nearly 200 page bill.
The main bill the committee discussed, the Michael Davis Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act, was introduced by Republican Rep. Raul Labrador of Idaho, and closely resembles similar legislation that the House judiciary committee has advanced in the past and that now-Attorney General Jeff Sessions introduced in his time in the Senate.
The Davis-Oliver Act would substantially increase the capabilities of federal and local immigration enforcement, including empowering state and local law enforcement to enact their own immigration laws and penalties. It also would give the government powers to revoke visas, beef up Immigration and Customs Enforcement’s ability to arrest and deport undocumented immigrants, increase criminal penalties for undocumented immigrants and punish sanctuary jurisdictions.

The two parties went back and forth on the bill, with Democrats decrying it as demonization of all immigrants, as an increase in mass incarceration and as a promotion of racial profiling and as unconstitutional federal overreach. They noted that local law enforcement in sanctuary cities say their policies are important for victims and witnesses of crimes to feel comfortable coming forward.
But Labrador said the notion that the bill harms public safety is “the most preposterous and outrageous argument I’ve ever heard.”
“For too long we have allowed individuals to enter our country illegally and in many cases do us harm,” he said. “While other reforms are needed, this bill is vital to a long-term fix.”
The other two bills, introduced by Goodlatte, a Virginia Republican, would serve as authorizations for ICE and US Citizenship and Immigration Services, codifying the mission statements of both entities. The USCIS bill would focus the agency, which oversees the issuance of visas and grants immigrants the ability to enter the U.S. . . . .”

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America has all the immigration enforcement we need at present. Undocumented entries are down, the undocumented population is stable, and all reputable studies show that migrants of all types are among the most law-abiding sectors of our society. Also, the DHS is unable to remove everyone who is currently under a final order of removal. The U.S. Immigration Court system is completely backlogged, with nearly an astounding 600,000 pending cases.

Consequently, beyond funding “fixes” for the overwhelmed Immigration Courts and the DHS program for executing final orders of removal, there is no need for additional immigration enforcement personnel and authority at this time. Nor is there any need to push reluctant cities to help DHS out with immigration enforcement.

No, notwithstanding the disingenuous statements by GOP Reps. Goodlatte and Labrador, this is all about generating anti-immigrant sentiment and promoting a non-existent link among immigrants, crime, and national security..

What America really needs is some type of legalization program to allow the millions of law-abiding undocumented individual already here to continue to work and contribute to our society. Additionally, we need immigration reform that would expand the legal immigration system to more realistically match supply with demand. This, in turn, would encourage individuals to enter through the legal system and thereby register and submit themselves to complete pre-entry vetting. That’s what would actually promote the safety and prosperity of America!

PWS

05-19-17

REUTERS: Mica Rosenberg Reports On Trump’s “Under The Radar” Plan To Bar “Freedom Fighters” & “Victims Of Terrorism” From The U.S.!

http://www.reuters.com/article/us-usa-immigration-terrorism-exceptions-idUSKBN17N13C

Mica and Yegenah Torbati report:

“Now the Trump administration is debating whether to rescind the waivers that have allowed Raj, and tens of thousands of others, to immigrate to the United States in the past decade (See graphic on waivers: tmsnrt.rs/2oPssIo). Some immigration hardliners are concerned the exemptions could allow terrorists to slip into the country.

U.S. President Donald Trump directed the secretaries of State and Homeland Security, in consultation with the attorney general, to consider abolishing the waivers in an executive order in March. That directive was overshadowed by the same order’s temporary ban on all refugees and on travelers from six mostly Muslim nations.

The bans on refugees and travel were challenged in lawsuits, and their implementation has been suspended pending full hearings in court. But the waiver review was not included in the court rulings, so that part of the order remains in effect.

Rules governing the waivers have been hammered out over the last decade with both Democratic and Republican support. But in recent years they have drawn fire from some conservative lawmakers, including Attorney General Jeff Sessions when he was a senator.

A State Department official said this week the department is working with DHS to review the waivers and is “looking at actually pulling them back in accordance with the executive order.”

The official, who spoke on condition of anonymity, declined to give details on the timing of the review or its likely outcome. The Department of Justice declined to comment.

KURDS, KAREN, HMONG

Following the Sept. 11, 2001 attacks, Congress expanded the definition of who could be considered a terrorist and what constituted “material support” to terrorism in rules now known as the Terrorism Related Inadmissibility Grounds.

Those changes ensnared people like Raj who were coerced or inadvertently provided support to terrorists, as well as members of persecuted ethnic groups that supported rebel organizations, and even U.S.-allied groups fighting against authoritarian regimes.

Without an exemption, members of Kurdish groups that battled Saddam Hussein’s forces in Iraq, Hmong groups who fought alongside U.S. troops in Vietnam, or some Cubans who fought Fidel Castro’s regime would not be allowed to immigrate to the United States.

Under the exemptions, U.S. authorities have the discretion to grant people residency in the United States after they have passed background checks and are found to pose no threat to national security.

Congress initially passed waivers to the terrorism bars in 2007 with bipartisan support, and in the years that followed both the Bush and Obama administrations added additional groups and circumstances to the exemptions.

“PHANTOM PROBLEM”

U.S. Citizenship and Immigration Services (USCIS) has granted nearly 22,000 TRIG exemptions in total over the last decade, according to the latest data available, which goes through September 2016. The State Department also grants TRIG exemptions, but a spokesman could not provide data on how many.

Refugees from Myanmar are the largest single group of beneficiaries to date of TRIG exemptions granted by USCIS, with more than 6,700 waivers.

The wave of Myanmar refugees dates to 2006, when U.S. Secretary of State Condoleezza Rice ruled that thousands of members of the Karen ethnic group, then living in a camp in Thailand, could resettle in the United States, even if they had supported the political wing of an armed group that had fought the country’s military regime.

One high-profile supporter of scrapping the waivers is House of Representatives Judiciary Committee Chairman Bob Goodlatte, a Republican from Virginia whose staffers were instrumental in drafting Trump’s travel ban. Goodlatte told Reuters he was “pleased that the Trump Administration is reviewing the dangerous policy.”

Groups favoring stricter immigration laws have also applauded the review. Rosemary Jenks, director of government relations at NumbersUSA, called the waivers “a potential security risk.”

“I personally don’t think that a bureaucrat should be deciding how much support for terrorism is enough to be barred,” she said.

A USCIS spokeswoman, when asked if a recipient of an exemption had ever been involved in a terrorism-related case after arriving in the United States, referred Reuters to the Federal Bureau of Investigation, which said it was a question for the State Department to answer.

“I don’t know of any cases where beneficiaries of exemptions have gotten into trouble after arriving,” the State Department official said, noting that the department does not typically track people after they arrive in the United States.

Trump’s order to review the waivers “is another example of an attempt to address a non-existent phantom problem,” said Eric Schwartz, who served in the State Department during the Obama administration.

Schwartz and immigration advocates say the waivers are granted after lengthy review and are extremely difficult to get.

“These are case-by-case exemptions for people who represent no threat to the United States but rather have been caught in the most unfortunate of circumstances,” said Schwartz.

For Raj, the initial ruling that his ransom payment supported a terrorist group led to more than two years in U.S. immigration detention, followed by more years of electronic monitoring. His waiver allowed him to bring his wife to the United States after nine years apart. She now studies nursing.

(Reporting by Mica Rosenberg in New York and Yeganeh Torbati in Washington; Additional reporting by Julia Edwards in Washington and Kristina Cooke in San Francisco; Editing by Sue Horton and Ross Colvin)”

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Just to illustrate the lunacy of the already over-broad definition of “terrorist,” all of our “founding fathers” would be “terrorists” under this definition.

I heard a number of so-called”terrorist cases” over my time as a trial judge at the Arlington Immigration Court. A few of the folks on the detained docket (during the years I was assigned to that docket) might have potentially been dangerous.

But, most so-called “terrorists” were basically harmless individuals who actually appeared on my non-detained docket even during the “last years” when I was handling the “non-priority docket” (which was actually the overwhelming majority of cases at Arlington).

Most were folks who had supposedly provided “material support” like giving a ride to a rebel who commandeered the respondent’s car at gun point, carrying supply bags a few miles for guerrillas under threat of death, allowing rebels to ransack the family kitchen at gunpoint (sometimes called the “taco rule”), or giving money to a dissident group that was actually being supported by the U.S. in a battle against an oppressive government” (otherwise referred to as “freedom fighters”).

Most of them had lived in the U.S. for years without incident and were stunned to find out that being a victim of terrorism or helping a dissident group that the U.S. supported could be a bar to immigration. For example, anyone assisting rebels in the fight against the Assad Government or against ISIS would be considered a “terrorist” by our definition. And, ask yourself, why would any “real” terrorist have appeared on my non-detained, non-priority docket?

Of course, as a mere Immigration Judge I could not grant the “waiver” discussed in Mica’s article. But, I was required to make essentially an “advisory holding” that “but for” the “terrorist bar” I would have granted the respondent’s application.

I am aware that some of the cases I handled were referred to USCIS by the Office of Chief Counsel (the respondent can’t initiate the waiver process on her or his own) and eventually granted. Thereafter, I “vacated” on “joint motion” the removal order I had previously entered against the respondent. The whole process seemed convoluted.

Just another example of how the xenophobes in the Trump Administration are wasting time and taxpayer money making an already bad situation even worse.

A further example of how pointless the “terrorist bar” is in it’s current form: many of the individuals covered by the bar would also be entitled to “Deferral of Removal” under the Convention Against Torture (“CAT”). The “terrorist bar” can’t be applied to “CAT deferral.” Therefore, individuals who are denied asylum but qualify for CAT deferral can’t be removed from the country. In effect, all that the terrorist bar does in such cases is keep individuals who are no threat to the U.S. in “limbo,” rather than allowing them to regularize their immigration status.

PWS

04-21-17

HUFFPOST POLITICS: Despite Bannon’s Apparently Waning Influence, “Turbocharged” Sessions Will Keep “Ethno-Nationalist Agenda” Rolling At Full Speed At DOJ! Bad News For Immigrants, African-Americans, Refugees, Muslims, LBGT Individuals, Forensic Science, Innocent Defendants, Minor Offenders, Taxpayers, The U.S. Constitution, Many Women, & Social Justice In America!

http://www.huffingtonpost.com/entry/jeff-sessions-steve-bannon_us_58efb376e4b0bb9638e23542

Paul Blumenthal writes:

“No matter what Bannon’s fate, however, his strand of ethno-nationalism will live on in the Trump Justice Department under Attorney General Jeff Sessions. The 70-year-old former Alabama senator has already set the Justice Department on a new path by targeting immigrants, reining in police department reform efforts and curtailing efforts to protect voting rights.

“While many are focused on how Bannon is losing influence in the White House, those concerned with immigrant justice ― and I suspect those concerned with racial justice, police reform and voting rights, too ― are focused on the rise of a turbocharged Sessions,” Frank Sharry, executive director of the pro-immigration reform group America’s Voice, said in an email to HuffPost.

Bannon and Sessions share a long history of mutual support and policy agreement. They spent months together with Stephen Miller, a former Sessions aide who now works in the White House, plotting strategy on how to enact their shared agenda of limiting immigration to the U.S. in order to maintain a European and Christian identity. In 2016, Bannon declared Sessions “one of the intellectual, moral leaders of this populist, nationalist movement in this country.” After both moved to Trump’s administration, Bannon called Sessions the White House “clearinghouse for policy and philosophy.” Like Bannon, Sessions declares his policy objective as defeating “soulless globalism.”

. . . .

In another appearance on Bannon’s radio show, Sessions endorsed the Immigration Act of 1924, which specifically limited immigration based on race and religion, in the context of current immigration trends. “In seven years, we’ll have the highest percentage of Americans, non-native born, since the founding of the Republic,” Sessions said, while praising the 1924 law that was used to prevent Jewish immigration before and during the Holocaust.

Like Bannon, Sessions believes immigration from Middle Eastern countries poses a national security risk. He agrees that Western leaders have failed to protect their Judeo-Christian heritage by opening the door to refugees.

In one radio interview, after Bannon compared the migration of Syrian refugees to an infamous racist French book, he asked Sessions.: “Do you believe the elites in this country have the backbone, have the belief in the underlying principles of the Judeo-Christian West to actually win this war?”

“I’m worried about that,” Sessions replied.

The two nationalist Trump supporters share more than immigration policy preferences. The reversal of police reform efforts and reinvigoration of the War on Drugs pushed by Sessions as attorney general fits with Bannon’s efforts at Breitbart to label Black Lives Matter protesters as racists, while perpetuating racist stereotypes of African Americans through the site’s Black Crime section.”

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For those who hoped that President Trump’s sudden shift to more “centrist” positions on trade and foreign policy might carry over into immigration policy, dream on! Bannon might be “on the ropes,” but Sessions and Stephen Miller still have the President’s ear on their restrictionist, nationalist positions on immigration.

While badly needed, reasonable bipartisan immigration reform would be within Trump’s reach, that’s not going to happen. Buoyed by the immediate decrease in Southern Border apprehensions, Trump, Sessions, and MIller (Gen. Kelly appears to gone AWOL on immigration policy — he just parrots what Sessions and the nationalist restrictionists tell him — his stature as former General with integrity shrinks every day) intend to arrest, detain, deport, and threaten unless and until the Article III Courts stop them. And whether that will happen is still an open question.

Liz was right!

PWS

04-13-17

RELIGION/POLITICS/REFUGEES: Pope Francis Puts Migrants’ Lives First — World’s Top Catholic Stands Tall Against Those Who Would Shun Most Vulnerable — Pence’s Values Might Bar Meeting With Women, But Haven’t Stopped Him From Supporting Policies That Hurt Refugees, Migrants, Transgender Children, Gays, The Sick, The Poor, The Starving, Many Women & Almost All Other Vulnerable People! Big Time Disconnect!

https://www.washingtonpost.com/world/europe/how-pope-francis-is-leading-the-catholic-church-against-anti-migrant-populism/2017/04/10/d3ca5832-1966-11e7-8598-9a99da559f9e_story.html?hpid=hp_rhp-more-top-stories_no-name%3Ahomepage%2Fstory&utm_term=.1dbd72f3d9a0

Anthony Faiola and Sarah Pulliam Bailey report in the Washington Post:

“VATICAN CITY — As politicians around the world including President Trump take an increasingly hard line on immigration, a powerful force is rallying to the side of migrants: the Roman Catholic Church led by Pope Francis.

Catholic cardinals, bishops and priests are emerging as some of the most influential opponents of immigration crackdowns backed by right-wing populists in the United States and Europe. The moves come as Francis, who has put migrants at the top of his agenda, appears to be leading by example, emphasizing his support for their rights in sermons, speeches and deeds.

The pro-migrant drive risks dividing Catholics — many of whom in the United States voted for Trump. Some observers say it is also inserting the church into politics in a manner recalling the heady days of Pope John Paul II, who stared down communism and declared his opposition to the 1991 Persian Gulf War. The Vatican is standing in open opposition to politicians like Trump not just on immigration but also on other issues, including climate-change policy.

But the focal point is clearly migrant rights.
In the United States, individual bishops, especially those appointed by Francis, have sharply criticized Trump’s migrant policies since his election. They include Newark Cardinal Joseph W. Tobin, who last month co-led a rally in support of a Mexican man fighting deportation. Tobin has decried Trump’s executive orders on immigration, calling them the “opposite of what it means to be an American.”

In Los Angeles, Archbishop José H. Gomez, the first Mexican American vice president of the United States Conference of Catholic Bishops, which leads the U.S. church, described migrant rights as the bishops’ most important issue. He has delivered blistering critiques of Trump’s policies, and instructed his clerics to distribute cards in English, Spanish, Korean and Vietnamese informing migrants of their rights in 300 parishes .
Chicago Cardinal Blase J. Cupich, one of Francis’s closest allies in the U.S. church, has issued orders that if federal immigration authorities should attempt to enter churches without a warrant in search of migrants, priests should turn them away and call the archdiocese’s lawyers. Catholic school principals were given the same instructions by the archdiocese, which Cupich said was an attempt to respond in a way that was firm “but not extreme.”

He said Francis has helped bishops shape their response.

“The pope makes it a lot easier for me to be a bishop because he’s very clear in his teaching, and [on] this one in particular, he’s trying to awaken the conscience of the citizens of the world,” Cupich said.

Francis has long been an advocate of migrants — kicking off his papacy in 2013 with a trip to an Italian island used as a waypoint for migrants desperate to enter Europe. In a highly public spat early last year, Francis and Trump exchanged barbs — with Francis declaring that anyone who wants to build walls “is not Christian.”

. . . .

Those who have the pope’s ear say Francis is seeking to counter anti-migrant policies by appealing directly to voters.

“I don’t think the pope is challenging [the politicians]. I think he is challenging their supporters, both those who actively support them and those who passively allow their policies to happen,” said the Rev. Michael Czerny, undersecretary of the Vatican’s new Section for Refugees and Migrants, which opened in January, just before Trump took office. Czerny reports directly to the pope — a sign of the importance of the new office.

“Mr. Trump or Ms. Le Pen are not the root of the problem,” Czerny continued. “The root of the problem is the fear, selfishness and shortsightedness that motivate people to support them.”

. . . .

He [William E. Lori, Archbishop of Baltimore] added that previous popes have taken similar positions as Francis on immigration. But, Lori added, Francis is “perhaps more dramatic.” His trips, such as his 2016 visit to the U.S.-Mexico border, also connected his stance on migrants to politics.
“The poor is the hallmark of his papacy,” Lori said. “It will affect our priorities and it should.”

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

Meanwhile, Carla Gardina Pestana writes about “Arrogant Christians in the White House” in HuffPost:

“Mike Pence, the fundamentalist Christian whose views are so extreme that he cannot be alone with a woman other than his wife, and Donald Trump, who brags about sexually assaulting women and famously stumbled over an attempt to quote a biblical passage while on the campaign trail, seem to hold wildly divergent religious views. Yet both adhere to variations of Christianity inflected with arrogance. Together they represent two troubling trends in American Christianity, trends which appear to prove all the complaints secular liberals ever leveled against Christians.

Pence adheres to biblical literalism. Put simply, this view asserts that the Bible is a transparent document, one that prescribes specific behavioral guidelines. Glossing over the fact that the Bible is a complex text built of ancient fragments brought together by human hands, that it does not speak directly to many modern issues, and that even on its own terms it encompasses numerous contradictions, these Christians confidently declare that the Bible provides clear guidance for every Christian. Literalists arrived at this position only relatively late in Christian history, in response to various challenges from many quarters, including biblical scholarship, advances in science, and a rise in unbelief. Cutting through the complexities and the need to make choices, literalists declared all choice to be false and all discussion to be error. It was a comforting if simplistic and authoritarian solution to the problem of uncertainty.

Its arrogance lies in the hubris of those who believe that only their chosen answers are correct. Its potential to harm others comes when adherents gain political power and force their mandates on nonbelievers. One of the many dangers emanating out of the Trump White House is the power of Pence to impose not his religion but the behaviors his religion dictates onto the rest of us. Women’s rights and gender equality are on Pence’s hit list.

Trump’s religion, although very different, is similarly alarming. Unsurprisingly Trump accepts a religious viewpoint that tells him he is uniquely awesome. Whatever he has—however he acquired it—God wants him to enjoy to the fullest. Although traditional Christian social practice mandates that believers exercise humility, charity and other virtues that put others before self, Trump’s faith rejects all curbs on self-indulgence and self-aggrandizement. This religious position, known as Prosperity Theology, is newer than Pence’s literalism. It preaches that God wants the rich to be not only rich but selfish. Its attraction to a man like Trump—born to wealth, selfishly guided by his own desires, endlessly demanding that others adore him but never judge him—is transparent.

. . . .

Pence’s arrogance leads him to believe that he knows exactly what God wants us all to do and that he ought to force that on us if he has the power to do so. Trump’s faith simply endorses his own self-regard, elevating his personal whims to God’s desires. The political marriage of the two men is obviously one of expedience, given the great disparities in their beliefs and goals. Yet between them, they can do a great deal of damage. Arrogant self-righteousness and egotistical self-regard together wield power over the rest of us.

Little wonder that the pope has been modeling Christian humility and singing the praises of Christian charity, or that the supporters of these two find his lessons in what it means to be a Christian so infuriating.”

Read the complete article here: http://www.huffingtonpost.com/entry/arrogant-christians-in-the-white-house_us_58e94a6fe4b06f8c18beec89?

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

Also, Allen Clifton writing in Forward Progressives quotes the views of Pastor John Pavlovitz taking Trump and the GOP to task for hypocricy on Syrian refugees, a point that has been noted several times previously in this blog:

“There are many things concerning Donald Trump that completely baffle me, but the fact that he’s strongly and enthusiastically supported by a party that comically portrays itself as representatives for “the Christian moral majority” is right near the top of my list. Of all the major candidates who ran for president from either party, Trump was, without a doubt, the least Christian of any of them. I haven’t viewed Republicans as actual Christians for years, but Trump’s rise to the top of the GOP cemented the fact that there’s nothing Christian about the Republican Party.
A great example of what I’m talking about is Trump and the GOP’s take on refusing to accept Syrian refugees. Innocent, desperate people, many of whom are women and children, fleeing a war-torn country hoping to escape a brutal dictator who, once again, just used chemical weapons against his own people. Not only have Trump and his fellow Republicans blatantly vilified these poor people as a means of pandering to the bigotry that fuels their party, but they continually lied about the process refugees must endure before ever stepping foot on U.S. soil.
If you listen to Trump talk about the vetting process, he essentially said we never had one — which is an outright lie. Every refugee allowed into the United States endures a rigorous process that usually takes between 18-24 months to complete and these refugees never know where they’re actually going to end up. So it’s not as if some “undercover terrorist” can pose as a refugee, say they want to go to America, and they’re here in two weeks.
Nevertheless, it’s undeniable that Trump and the GOP have gone out of their way to demonize these poor people for political purposes.

That made it rather nauseating to watch Trump claim that the images of the victims of the most recent chemical weapons attack launched by Assad are what “moved” him to take action by ordering last week’s airstrike. Nothing like selling yourself as the party of “Christian values,” while vilifying and rejecting refugees, then claiming that the images of victims of a horrific chemical attack “moved you” — not to do everything you can to help people who need it — but to fire 59 Tomahawk missiles at an airbase that was up-and-running within a few hours of the attack.

I’m sorry, but you can’t claim you’re “moved” by the sickening images of what’s going on in Syria when your administration’s policy is to reject helping thousands of refugees desperately trying to flee the carnage that’s plagued that nation for over six years now.

That’s also along the lines of what North Carolina Pastor John Pavlovitz said in a recent blog post:
‘This is the human collateral damage of what Donald Trump’s been selling for 16 months now. It is the cost in actual vibrant, beautiful lives, of the kind of incendiary rhetoric and alternative facts and Fox News truths that you’ve been fine with up until now. This is what you bought and paid for. Maybe not something this sadistic or explicitly grotesque, but the heart is the same: contempt for life that looks different and a desire to rid yourself of it.
I want to believe that you’re truly outraged, but honestly your resume is less than convincing.
Honestly, you didn’t seem all that broken up when Muslim families were handcuffed in airports a couple of months ago, or when mosques were being defaced, or when many of us were pleading the case for families fleeing exactlythe kind of monstrous atrocities you were apparently so moved by this week—and getting told to eat our bleeding hearts out by MAGA hat-wearing trolls. You weren’t all that concerned when your President told terrified, exhausted refugees to leave and go home—twice.'”

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

Matthew 25:

44And they too will reply, ‘Lord, when did we see You hungry or thirsty or a stranger or naked or sick or in prison, and did not minister to You?’ 45Then the King will answer, ‘Truly I tell you, whatever you did not do for one of the least of these, you did not do for Me.’ 46And they will go away into eternal punishment, but the righteous into eternal life.”…

PWS

04-11-17

POLITICO LITIGATION: DOJ In “Stall Mode” In Hawaii Travel Ban Case — “Dire Emergency” Threatening The Republic Subsides As Curiously As It Arose, Leaving Experts To Ponder The Meaning Of The Administration’s Changed Strategy!

http://www.politico.com/blogs/under-the-radar/2017/03/donald-trump-travel-ban-ninth-circuit-appeal-236575

Josh Gerstein writes in Politico:

“When President Donald Trump’s first travel ban executive order was effectively shut down by a federal judge, the Trump administration seemed to be in a huge rush to get the policy back on track.

This time? Not so much.

It took less than a day for Justice Department lawyers to file an appeal last month after U.S. District Court Judge James Robart blocked the key parts of Trump’s directive.

A few hours later — just after midnight Eastern Time — the federal government filed an emergency motion asking the San Francisco-based 9th Circuit to allow the president to move forward with his plan to halt travel to the U.S. from seven majority-Muslim countries and to suspend refugee admissions from across the globe.

A three-judge 9th Circuit panel unanimously turned down Trump’s request, prompting the president to redraft the executive order, dropping Iraq from the roster of affected countries and exempting existing visa-holders from the directive.

But when a federal judge in Hawaii issued a broad block on the new order March 15, just hours before it was set to kick in, there was no immediate appeal. In fact, nearly two weeks later, the Justice Department is still tangling with Honolulu U.S. District Court Judge Derrick Watson and has yet to take the issue back to the 9th Circuit.

The delay has puzzled many lawyers tracking the litigation, particularly given Trump’s public warning that “many very bad and dangerous people may be pouring into our country” as a result of the courts’ interference with his first travel ban directive. A total of two months have now passed since Trump signed his first order.

“A lot of people have talked about that,” said University of Richmond law professor Carl Tobias. “It seems hard to wait on this without undercutting the argument” that the travel ban order is needed to address an urgent national security threat, he added.

Some attorneys believe the Justice Department is intentionally dragging its feet in the Hawaii case because the 9th Circuit rotates the three-judge panels assigned to motions every month, with the next swap-out due Saturday. The 9th Circuit also announces the panels publicly, although not in advance. This month’s consists of two Obama-appointed judges — Morgan Christen and John Owens — along with George W. Bush appointee Milan Smith.”

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

Interesting that Gerstein reports later in his article that the 4th Circuit might “bypass” the panel stage and just send the “Maryland case” directly to the en banc court. I hadn’t picked up on that. Sounds unusual.

As I have speculated before, no matter what happens in the 4th Circuit, if this issue does get to the Supremes, it’s unlikely to be decided until some time in 2018. So, barring something pretty unusual, the Travel Ban will be “banned” for the foreseeable future.

I suspect that by then, the Administration will have discovered that it doesn’t need an Executive Order and all this hoopla to quietly and gradually “beef up” visa and refugee vetting in individual cases or groups of cases where it is warranted. They have already started that process, as I previously reported. I think the scope, method, publicity, and “in your face” tone of the two EOs are what got them into difficulty with the courts.

PWS

03/29/17

Trump Wins One In Virginia!

http://www.cnn.com/2017/03/24/politics/virginia-federal-judge-revised-travel-ban/

CNN reports:

“(CNN)A federal judge in Virginia ruled in favor of the Trump administration Friday, declining to join other federal courts that halted the President’s revised travel ban last week.

Two federal judges — one in Maryland and one in Hawaii — have blocked implementation of the core provisions of the travel ban, and it remains on hold nationwide. Drawing on a litany of then-candidate Donald Trump’s statements about Muslims during the presidential campaign, both of the judges concluded that the new executive order likely violates the establishment clause of the Constitution by disfavoring Muslims.

But Virginia-based US District Judge Anthony Trenga was not persuaded that Trump’s past statements automatically mean the revised executive order is unlawful, especially given the changes it made from the first version.
“This court is no longer faced with a facially discriminatory order coupled with contemporaneous statements suggesting discriminatory intent,” Trenga explained. “And while the President and his advisers have continued to make statements following the issuance of EO-1 (the first executive order) that have characterized or anticipated the nature of EO-2 (the revised ban) the court cannot conclude for the purposes of the motion that these statements, together with the President’s past statements, have effectively disqualified him from exercising his lawful presidential authority.”
The practical effect of Trenga’s decision is limited at this point because the travel ban is already frozen nationwide, but it adds another judicial voice in support of the legality of the executive order as it makes its way through further proceedings in federal appellate courts.
Trump’s new travel ban blocked: What you need to know
“The substantive revisions reflected in EO-2 have reduced the probative value of the President’s statements to the point that it is no longer likely that plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose,” Trenga added.
The Justice Department championed the news.”

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

Not much immediate impact here, because TRO’s from Federal cases in Hawaii and Maryland remain in effect. But, Judge Trenga’s legal analysis will certainly be helpful to the Government moving forward.

PWS

03/25/17

WashPost OPINION: David Cole Lays Out The Case For Rejecting “Travel Ban 2.0” — Why Judges Should Look Behind The Language OF The EO To Determine “Intent”

https://www.washingtonpost.com/opinions/judges-shouldnt-ignore-what-we-all-know-trumps-travel-ban-is-really-about/2017/03/22/4ad23ce2-0f21-11e7-ab07-07d9f521f6b5_story.html?utm_term=.e93e1d53f89f

Cole writes:

“So does the immigration or the establishment-clause test govern? The answer should depend on the nature of the government’s action. Deference is proper when the political branches draw customary and “bona fide” immigration lines, especially when there is no suggestion of an improper purpose. It makes sense to defer to immigration decisions based on family ties or adherence to visa conditions, because it is next to impossible to regulate immigration without drawing such lines. But the Trump administration has advanced no reason immigration law should be a tool for denigrating religion.

Establishing religion has never been a proper goal of immigration law — or any law. Targeting Islam violates the rights of Americans, whatever form it takes; there is no justification for giving the government a pass because it is regulating the border. When Trump signed the first travel ban, he said, “We all know what that means.” We do, indeed. And judges, no less than the rest of us, must not blind themselves to what “we all know.”

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

Curmudgeonly Observation Of The Day

As noted in his op-ed, Professor Cole wears “many hats,” one of which is as the attorney for the plaintiffs in International Refugee Assistance Project v. Trump, currently pending on appeal by the Government in the U.S. Court of Appeals for the Fourth Circuit.

I’m not saying that there is anything unethical or improper about Cole writing this article. Attorneys seem to do it all the time, although more often from the private than from the Governmental side. As long as the judge hasn’t entered a “gag order,”(very rare in civil litigation like this) it’s perfectly legit.

It’s probably just me being an “old guy” and having spent two decades toiling away on appellate and trial benches at the administrative level (certainly not the exalted level of the U.S. District Court or the Fourth Circuit). Nevertheless, as I indicated in my recent blogs about extra-judicial statements by Trump and his advisors, I continue to think it is a “bad practice” for parties and attorneys with pending cases to take the argument “out of court and into the media.”

In my judicial career I presided over a number of so-called “high profile” cases. As a judge, I never appreciated seeing articles or statements in the press by the attorneys of record or parties while the matter was pending before me (or “us” in the case of the BIA).

To me, it always seemed to indicate a curious desire by the party to have the case tried in a forum “other than the one I was presiding over.” That didn’t necessarily warm my heart or increase my respect for the party.

Of course, as I judge I had to “get over it” (in the words of my esteemed former colleague, now retired, Judge Wayne R. Iskra) along with lots of other annoying “peripheral stuff” to treat the parties fairly and make a just decision on the law and facts. But, I always wondered: “Why even put that seemingly unnecessary ‘hurdle’ in front of me.”

Sure, nothing takes the place of “real life” reflections from those involved in big cases. That’s what “after the fact” articles, press conferences, law review pieces, books, and even movies are for. But, I think that it is most prudent for those actively involved in pending litigation to let their statements and filings in court speak for them. Surely, there are others in academia and the NGO community who could have written the same article that Cole did based on what is already in the public record.

PWS

03/24/17

NY Times: What Does It REALLY Take To Get A U.S. Nonimmigrant Visa?

From listening to some members of the Administration, nonimmigrant visas for visitors, students, professors, businessmen, and tech workers are being handed out like candy abroad. But, those of us who have actually practiced immigration law for a living at one time or another know the hard truth: getting a U.S. nonimmigrant visa for a client can be a long, detailed, and often frustrating process.

I left private practice 22 years ago. But, even then, getting a business visa for a client in India, Pakistan, or the Philippines, to name just a few consulates, could be a major project. I can remember being on our basement dial phone at 3:00 AM with my files and papers spread across an ironing board as I tried to negotiate what “additional evidence” might be necessary for my business client to establish his or her bona fides, during the one-hour period that many consulates halfway around the world allocated to speak with attorneys about visa cases. And this was after the INS had approved a visa petition. I’m sure it has only gotten more difficult and exacting since then.

Here is a good step-by-step guide to the visa issuing process by Ron Nixon and Jasmine C. Lee in the NY Times. And, this is just for a “typical” visa. In countries where terrorism is a threat, this would only be the beginning of the inquiry.

https://www.nytimes.com/interactive/2017/03/16/us/visa-process-united-states.html?emc=edit_nn_20170324&nl=morning-briefing&nlid=79213886&te=1&_r=0

PWS

03/24/17

With Neither Fanfare Nor Commotion, State Department Quietly Implements Enhanced Visa Screening For Many MidEast, African Countries — “Travel Ban Lite”

https://www.nytimes.com/2017/03/23/us/politics/visa-extreme-vetting-rex-tillerson.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news&_r=0

The NY Times Reports:

“WASHINGTON — The Trump administration is making it tougher for millions of visitors to enter the United States by demanding new security checks before giving visas to tourists, business travelers and relatives of American residents.

Diplomatic cables sent last week from Secretary of State Rex W. Tillerson to all American embassies instructed consular officials to broadly increase scrutiny. It was the first evidence of the “extreme vetting” Mr. Trump promised during the presidential campaign.

The new rules generally do not apply to 38 countries — including most of Europe and longstanding allies like Australia, New Zealand, Japan and South Korea — whose citizens can be speedily admitted into the United States under the visa waiver program. No countries from the Middle East or Africa are part of the program. In 2016, the United States issued more than 10 million visas to foreign visitors.

Even stricter security checks for people from six predominantly Muslim nations remain on hold because federal courts have temporarily blocked President Trump’s travel ban.

But Mr. Trump and his national security team are not waiting to toughen the rules to decide who can enter the United States. Embassy officials must now scrutinize a broader pool of visa applicants to determine if they pose security risks to the United States, according to four cables sent between March 10 and March 17.

That extra scrutiny will include asking applicants detailed questions about their background and making mandatory checks of social media history if a person has ever been in territory controlled by the Islamic State.

Mr. Trump has spoken regularly of his concern about the threat of “radical Islamic terrorism” from immigrants. But it is unclear who, exactly, will be targeted for the extra scrutiny since Mr. Tillerson’s cables leave that decision up to security officers at each embassy.

Still, taken together, consular officials and immigration advocates said the administration’s moves will increase the likelihood of denial for those seeking to come to America, and will further slow down a bureaucratic approval process that can already take months or even years for those flagged for extra investigation.

There are legitimate reasons someone might be targeted, such as evidence of a connection to terrorism or crime. But advocates also said they worry about people being profiled for extra scrutiny because of their name or nationality.”

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

I have suggested before that the whole “Travel Ban” circus was an unnecessary publicity/feed the base/whip up fear and loathing/show ’em who’s in charge stunt.

The Administration almost certainly has the authority to tighten visa screening in specific ways on a case-by-case basis as the Obama Administration and most of its predecessors have done when appropriate to meet specific threats (as opposed to absolute, across the board bans and prohibitions which, even if eventually found legal, obviously raise more difficult and controversial issues.) The Administration appears to be doing now what it could have done earlier.

PWS

03/23/17

WashPost — Administration Suppresses Internal Info Questioning Basis For Travel Ban

https://www.washingtonpost.com/world/national-security/internal-trump-administration-data-undercuts-travel-ban/2017/03/16/9a2dc6b4-098e-11e7-93dc-00f9bdd74ed1_story.html?hpid=hp_rhp-top-table-main_trumpwords-815pm%3Ahomepage%2Fstory&utm_term=.cee0f15e49a5

The Washington Post reports:

“At least two sets of internal data that have been available to the Trump administration — but that have never been publicized — appear to undercut the government’s argument for a travel ban that it had hoped would take effect Thursday, according to several officials familiar with the documents.

One internal report, titled “Most Foreign-Born US-Based Violent Extremists Radicalized After Entering Homeland,” analyzed roughly 90 cases involving suspected or confirmed foreign-born terrorists, finding that most of them probably embraced extremist ideology after they arrived in the United States, not before.

Another report, drawn on classified FBI data, has been used by the Trump administration to bolster its claims that refugees pose a risk of terrorism. But the figures that are the basis for that report undermine a key premise of the travel ban, with most of the suspects cited in the report coming from countries unaffected by President Trump’s executive order, according to officials familiar with the report.”

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

PWS

03/16/17

Five Circuit Judges Dissent From 9th Circuit’s Decision Not To Vacate The Panel Decision In State of Washington v. Trump On Travel Ban 1.0!

Judge Bybee writing for the dissenters:

“Washington v. Trump, No. 17-35105 (Motions Panel–February 9, 2017)
U.S. COURT OF APPEALS

FILED

MAR 15 2017 MOLLY C. DWYER, CLERK

BYBEE, Circuit Judge, with whom KOZINSKI, CALLAHAN, BEA, and IKUTA, Circuit Judges, join, dissenting from the denial of reconsideration en banc.

I regret that we did not decide to reconsider this case en banc for the purpose of vacating the panel’s opinion. We have an obligation to correct our own errors, particularly when those errors so confound Supreme Court and Ninth Circuit precedent that neither we nor our district courts will know what law to apply in the future.

The Executive Order of January 27, 2017, suspending the entry of certain aliens, was authorized by statute, and presidents have frequently exercised that authority through executive orders and presidential proclamations. Whatever we, as individuals, may feel about the President or the Executive Order,1 the President’s decision was well within the powers of the presidency, and “[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 165 (1993).

1 Our personal views are of no consequence. I note this only to emphasize that I have written this dissent to defend an important constitutional principle—that the political branches, informed by foreign affairs and national security considerations, control immigration subject to limited judicial review—and not to defend the administration’s policy.

This is not to say that presidential immigration policy concerning the entry of aliens at the border is immune from judicial review, only that our review is limited by Kleindienst v. Mandel, 408 U.S. 753 (1972)—and the panel held that limitation inapplicable. I dissent from our failure to correct the panel’s manifest error.”

Read Judge Bybee’s full dissent here:

http://cdn.ca9.uscourts.gov/datastore/general/2017/03/15/17-35105 en banc.pdf

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

I had speculated at the time a Judge of the 9th Circuit requested a vote on rehearing en banc that it was part of a strategy not intended to actually force such review, but rather to give those Judges who disagreed with the 3-Judge panel a chance to publicly express dissenting views. This dissent will be published.

Nevertheless, with only five of the 29 or so active Judges on the 9th Circuit joining Judge Bybee’s dissent, the prospect for the Administration obtaining any relief there from the TRO in State of Hawaii v. Trump enjoining Travel Ban 2.0 appears dim.

Notwithstanding President Trump’s claim that he will litigate Travel Ban 2.0 to the Supreme Court, that might not be so easy, particularly for the foreseeable future. The Supreme Court is not obligated to take any case just because the President wishes it. The Court has discretion.

In exercising that discretion (known as a “petition for certiorari”) the Court generally does not like to intervene at the TRO or Preliminary Injunction stage, before a full record is developed. Also, the current eight member configuration, presenting the possibility of a tie vote, makes it less likely that the Court would take the case now.

And, one of the reasons for the Court taking such a case — a split in Circuits — doesn’t exist here. The Administration has consistently lost on the issue except for a single District Court ruling from Massachusetts.

Consequently, the Administration might have to wait for a full trial on the merits of the plaintiffs’ case, a process that would take weeks at a minimum and quite possibly months or even years. Even then, there is no guarantee that the Supreme Court would take the case, or that even with Justice Gorsuch on the bench the Administration’s position would prevail.

Finally, I note that much of Judge Bybee’s dissent echoes the views expressed by Nolan Rappaport in several articles from The Hill posted on this blog. The most recent of those, relating to State of Hawaii v. Trump, can be found here:

http://wp.me/p8eeJm-tV

PWS

03/16/17

BREAKING: ENJOINED AGAIN! NATIONWIDE TRO! Judge in Hawaii Says Travel Ban Violates Establishment Clause! Trump Administration Basically Found “Not Credible” On Immigration/National Security Claims — Trump’s Own Statements & Those of Giuliani, Miller Used To Show Bias!

http://www.huffingtonpost.com/entry/trump-travel-ban-blocked_us_58c99d18e4b00705db4bc38f

Report from HuffPost:

“A federal judge in Hawaii has placed a nationwide hold on key aspects of President Donald Trump’s second attempt at a ban on travel ― a scaled-back version that targeted all non-visa holders from six Muslim-majority countries, as well as a halt on the U.S. refugee resettlement program ― just hours before the new restrictions were to take effect.

U.S. District Judge Derrick Watson said sections of the new travel order likely amounted to a violation of the First Amendment’s establishment clause, which forbids the government from disfavoring certain religions over others.

Watson gave short shrift to the Trump administration’s argument that the new restrictions applied to a “small fraction” of the world’s 50 predominantly Muslim nations ― and thus could not be read to discriminate Muslims specifically.

“The illogic of the Government’s contentions is palpable,” Watson wrote. “The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.”

The judge also discarded the government’s defense that the text of the new executive order was silent on religion, supposedly solving constitutional defects identified by courts with the first order.

“Any reasonable, objective observer would conclude … that the stated secular purpose of the Executive Order is, at the very least, secondary to a religious objective of temporarily suspending the entry of Muslims,” Watson wrote.”

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

Here is Judge Watson’s written decision in State of Hawaii v. Trump:

http://www.hid.uscourts.gov/files/announcement142/CV17-50%20219%20doc.pdf

More bad news for the Administration — the Third Circuit has enjoined the removal of an Afghani interpreter with a visa who was denied admission and allegedly “withdrew” his application. Read about it in the WashPost here:

https://www.washingtonpost.com/national/immigration-authorities-to-deport-afghan-man-who-helped-us-government/2017/03/15/a7eecb9a-098e-11e7-a15f-a58d4a988474_story.html?hpid=hp_rhp-banner-main_travelban1010am:homepage/story&utm_term=.051c21ef8afe

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

It’s early in the game on the Administration’s uncompromisingly hard line approach to immigration issues. So far, however, they have racked up an impressive string of losses from coast to coast from Article III Judges all across the spectrum.

In other words, the bombastically inappropriate statements made by Trump and his advisors have “poisoned the well,” and the Administration is probably going to find it difficult to “un-poison” it. And, as long as guys like Bannon, Sessions, Miller, and Kobach are calling the shots, that might never happen.

As some have suggested, perhaps the President and his advisors need a type of “Executive Miranda Warnings” before they shoot off their mouths (or their Twitters) in public: “Everything you say (or Tweet) can and will be used against you.”

The next stop for “Travel Ban 2.0” probably will be the 9th Circuit. But, since the Administration already lost there on its appeal of the TRO in State of Washington v. Trump, I wouldn’t hold my breath waiting for the 9th Circuit to lift the TRO. Like President Obama with the “DAPA Fiasco,” President Trump is learning that U.S. District Judges wield considerable power in our system. As one of my colleagues once said, “U.S. District Judges are the last living potentates.”

None of this bodes well for the Administration’s next ill-advised plan — to ramp up removals, increase the use of immigration detention, maximize “expedited removal,” and reduce what’s left of the U.S. Immigration Court to the equivalent of two-shift assembly line workers churning out removal orders. Chances are that the Article III Courts are going to have something to say about that too. And, unless the Administration moderates its approach, it’s not likely to be anything they like.

PWS

03/15/17

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