BEWARE AMERICA: TRUMP IS USING HIS STUPID & BUNGLED CORONAVIRUS RESPONSE AS THE “REICHSTAG FIRE” THAT WILL BURN UP OUR CONSTITUTION!

https://www.huffpost.com/entry/trump-coronavirus-borders_n_5e6a530ec5b6dda30fc4be6e

Jessica Schulberg reports for HuffPost:

During his first address to the nation on the global coronavirus pandemic, President Donald Trump characterized COVID-19 as a “foreign virus” while touting his decision to institute travel restrictions with China and announcing plans to close the U.S. to visitors from most of Europe.

Meanwhile, he has been raked by critics — and the markets — for failing to thoroughly explain how the government plans to address the lack of tests and spiking number of cases across the U.S. His administration has for weeks downplayed the threat of the virus, even as experts warned it is on track to spread exponentially.

Trump clearly sees the novel coronavirus as just another foreign invader to keep out — a viewpoint reflected both in his policy proposals and the way he and his administration talk about the virus. This approach is in line with his overarching political strategy of exploiting Americans’ fears to justify racist, nativist policies.

“This is the most aggressive and comprehensive effort to confront a foreign virus in modern history,” Trump said Wednesday about his administration’s response while blaming the European Union for failing to take steps to prevent contagion. Several European countries have fewer cases of coronavirus per capita than the U.S.

It’s not just Trump. Health and Human Services Secretary Alex Azar repeatedly referred to the disease as the “China coronavirus” during a briefing last month. Anti-immigration zealot Rep. Paul Gosar (R-Ariz.) — who is in self-quarantineafter being exposed to coronavirus at the Conservative Political Action Conference in Maryland — has gone out of his way to describe the virus as the “Wuhan virus,” a reference to the location of the first outbreak.

When Gosar’s critics argued that the congressman shouldn’t spread racist stereotypes, Rich Lowry, the editor of the right-wing National Review, wrote an entire column insisting the illness be called the “Wuhan virus.” “China deserves to be connected to the virus that it loosed on the world,” he argued.

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For those who don’t know the history, the “Reichstag Fire” in 1933 was a pivotal step in the Nazi’s rise to power in Germany. At the time, Hitler blamed Communists. The actual cause of the fire has since been debated by historians: some say the Nazis started it themselves, while others say that it was an accident, or the act of a single arsonist.

Regardless of cause, all agree on the result. Hitler used it as a pretext to eradicate the constitution, punish the opposition, and place draconian authoritarian measures in place using the fiction of “national security.” This eventually led to the Holocaust and a World War that killed approximately 75 million.

Fact is that the coronavirus isn’t “foreign.” Viruses don’t possess or recognize nationality. Nor was it spread in the U.S. primarily by “foreigners.” Most cases initially reached the U.S. through U.S. citizens who took cruises or traveled abroad after the start of the virus abroad had been publicized.

Mexico, a frequent target of the Trump regime’s racism, has reported fewer than ten confirmed cases of coronavirus, as opposed to over 1,000 in the U.S. The Northern Triangle of Central America also appears to have avoided major outbreaks to date. On the other hand, the illegal and inhumane anti-asylum policies of the regime, as enabled by the Supremes and complicit Article III Courts, appear to present a realistic danger of spreading the virus to all of those countries which are ill-equipped to handle it.

The market as well as all medical experts recognized and reacted negatively to the idiocy of Trump’s Oval Office speech. The U.S. preparation, public education, and actual response to coronavirus has been one of the poorest and most inept in the world to date. To the extent that the U.S. has mitigated the disease, it has been largely the result of decisive actions by State Governors and local officials of both parties, although primarily Democrats, along with universities and sports leagues.

Expect Trump and his White Nationalists to use the danger to our public health that he didn’t cause, yet unnecessarily aggravated, as an excuse for more irrational, cruel, xenophobic, racist attacks on migrants. And, you can expect the “Chief of Complicity,” John Roberts, and his accomplices to continue to help promote Trump’s attack on human decency, truth, and our democratic institutions. John Roberts has never seen a transparently false “emergency” from Trump that he didn’t love or racism or religious bigotry so obvious that he would actually call it what it is.

Incompetent governance by a corrupt, selfish kakistocracy that promotes myths and conspiracy theories over truth, scientific knowledge, and the common good does not cause epidemics. But, it does unnecessarily aggravate them, hinder effective control, and gravely endanger the public health. It simple terms, it kills! Yet another reason why “regime change” in November might be America’s last chance for survival.

The coronavirus has surfaced perhaps the only competent high level official in the entire Trump Administration — Dr. Anthony Fauci. In case you haven’t noticed, there is no resemblance whatsoever between the scientific truth spoken by Dr. Fauci, who paints a honest but grim picture of the Administration’s half-assed efforts to date, and the unadulterated BS and party line spouted by Trump and the second most unqualified individual in the U.S. to handle a pandemic Mike “Super Sycophant” Pence. Talk about a “Confederacy of Dunces!” I’m just surprised that Trump hasn’t fired Fauci yet, given the well-known Trumpian aversion to all things true.

I’ve watched the smirking nitwit Rich Lowry of the National Review (too) many times on the “talking heads” where he is a favorite because he is one of the few Trump apologists who can put two consecutive sentences together in the English Language. Most of what he says is BS, but at least it’s comprehensible and reasonably articulate BS. And, despite the endless smirk, he isn’t as overtly rude and aggressively crude as most Trumpists. Jessica’s article confirmed my already low opinion of Rich. As Rome burns, by all means, let’s pontificate on what we should call the fire.

Still don’t believe we have “malicious incompetents” in charge? Check out the latest from the L.A. Times on how the regime is stiffing states, screwing the poor, and spreading disease and potential death by blocking states from using Medicaid to respond to the coronavirus. https://www.latimes.com/politics/story/2020-03-13/trump-administration-blocks-states-use-medicaid-respond-coronavirus-crisis

It’s never good to be governed by the malicious, stupid, and cruel in a time of crisis. Kakistocracy has consequences!

PWS

02-13-20

COURTSIDE HAS BEEN AT THE FOREFRONT OF EXPOSING THE “CRIMES AGAINST HUMANITY” COMMITTED BY THE REGIME AND THE MORAL CULPABILITY OF THOSE WHO WILLFULLY CARRY OUT & ENABLE THESE ATROCITIES — The “Mainstream Media” Is Now Channeling Courtside! — “In the meantime, no government has the right to treat people with such abject inhumanity. History will remember Trump for this, but it will also remember the people who enable such atrocious acts.”

https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?guid=17e4b3b6-8350-4ef2-86b2-45242bddfa52&v=sdk

From the LA Times Editorial Board:

The U.S. betrays migrant kids

Kevin Euceda, a 17-year-old Honduran boy, arrived at the U.S.-Mexico border three years ago and was turned over to the custody of the Department of Health and Human Services until his request for asylum could be decided by immigration courts. During that period, he was required, as are all unaccompanied minors in custody, to meet with therapists to help him process what he had gone through.

In those sessions, Kevin was encouraged to speak freely and openly and was told that what he said would be kept confidential. So he poured out his story of a brutalized childhood, of how MS-13 gang members moved into the family shack after his grandmother died when he was 12, of how he was forced to run errands, sell drugs and, as he got older, take part in beating people up. When he was ordered to kill a stranger to cement his position in the gang, Kevin decided to run.

His therapists submitted pages of notes over several sessions to the file on him, as they were expected to do. But then, HHS officials — without the knowledge of the teen or the therapists — shared the notes with lawyers for Immigration and Customs Enforcement, who used them in immigration court to paint the young migrant as a dangerous gang member who should be denied asylum and sent back to Honduras. In sharing those therapy notes, the government did not break any laws. But it most assuredly broke its promise of confidentiality to Kevin, violated standard professional practices — the first therapist involved quit once she learned her notes had been shared — and offended a fundamental expectation that people cannot be compelled to testify against themselves in this country.

Kevin, whose story was detailed by the Washington Post, wasn’t the only unaccompanied minor to fall victim to such atrocious behavior, though how many have been affected is unknown. The government says it has changed that policy and no longer shares confidential therapy notes, but that’s not particularly reassuring coming from this administration. It adopted the policy once; it could easily do so again.

Last week, Rep. Grace F. Napolitano (D-Norwalk) and Sen. Jeff Merkley (D-Ore.) introduced the Immigrants’ Mental Health Act of 2020 to ban the practice, which is a necessary preventive measure. The bill would also create a new training regimen to help border agents address mental health issues among migrants and require at least one mental health expert at each Customs and Border Patrol facility. Both of those steps are worth considering too.

That the government would so callously use statements elicited from unaccompanied minors in therapy sessions to undercut their asylum applications is part of the Trump administration’s broad and inhumane efforts to effectively shut off the U.S. as a destination for people seeking to exercise their right to ask for sanctuary. Jeff Sessions and his successor as attorney general, William Barr, have injected themselves into cases at an unprecedented rate to unilaterally change long-established practices and immigration court precedent.

They have been able to do so because immigration courts are administrative and part of the Justice Department, not the federal court system, and as a result they have politicized what should be independent judicial evaluations of asylum applications and other immigration cases. Advocates argue persuasively that the efforts have undermined due process rights and made the immigration courts more a tool of President Trump’s anti-immigration policies than a system for measuring migrant’s claims against the standards Congress wrote into federal law.

Of course, trampling legal rights and concepts of basic human decency have been a hallmark of the administration’s approach to immigration enforcement — witness, for example, its separation of more than 2,500 migrant children from their parents. Beyond the heartlessness of the separations, the Health and Human Services’ inspector general last week blasted the department for botching the process. Meanwhile, the administration has expanded detention — about 50,000 migrants are in federal custody on any given day, up from about 30,000 a decade ago — and forced about 60,000 asylum seekers to await processing in dangerous squalor on Mexico’s side of the border.

There are legitimate policy discussions to be had over how this government should handle immigration, asylum requests and broad comprehensive immigration reform. In the meantime, no government has the right to treat people with such abject inhumanity. History will remember Trump for this, but it will also remember the people who enable such atrocious acts.

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The LA Times is ”on top” of the grotesque perversion of the Immigration “Courts” under nativist zealot Jeff “Gonzo Apocalypto” Sessions and Trump toady Billy Barr to carry out a White Nationalist political agenda:

They have been able to do so because immigration courts are administrative and part of the Justice Department, not the federal court system, and as a result they have politicized what should be independent judicial evaluations of asylum applications and other immigration cases.

Who’a NOT “on top” of what’s happening: The GOP-controlled U.S. Senate, Chief Justice Roberts, a number of his Supremely Complicit colleagues, and a host of Court of Appeals Judges who allow this unconstitutional travesty to continue to mock the Fifth Amendment and the rule of Law, while abusing and threatening the lives of legal asylum seekers every day!

This was even before yesterday’s cowardly, wrong-headed, and totally immoral “Supreme Betrayal” of the most vulnerable among us in Wolf v. Innovation Law Lab. https://immigrationcourtside.com/2020/03/11/let-the-killing-continue-predictably-supremes-game-system-to-give-thumbs-up-to-let-em-die-in-mexico-brown-lives-dont-matter/ As MLK, Jr., said “Injustice anywhere affects justice everywhere.”

With 2.5 Branches of our Government led by anti-democracy zealots and cowards, House Speaker Nancy Pelosi is our only remaining bulwark against tyranny! Capable as she is, she can’t do it all by herself!

In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.

— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)

How soon we forget!

Due Process Forever; Complicit Courts & Other Immoral Enablers, Never!

PWS

03-12-20

U.S. DISTRICT JUDGE LYNN S. ADELMAN CHANNELS “COURTSIDE” — BLASTS ROBERTS & COMPANY FOR AIDING THE FORCES SEEKING TO DESTROY OUR DEMOCRACY — “Instead of doing what it can to ensure the maintenance of a robust democratic republic, the Court’s decisions ally it with the most anti-democratic currents in American politics,”

https://www.washingtonpost.com/nation/2020/03/11/lynn-adelman-roberts-trump/

Fred Barbash reports for the WashPost:

Lynn S. Adelman, a U.S. district judge in Milwaukee, has riled conservatives by publishing a blistering critique of the Supreme Court’s record under Chief Justice John G. Roberts Jr., focusing on a string of decisions that he argues have fostered “economic inequality,” “undermined democracy” and “increased the political power of corporations and wealthy individuals” at the expense of ordinary Americans.

Adelman also criticized President Trump, who he wrote ran as a populist but failed to deliver “policies beneficial to the general public. … While Trump’s temperament is that of an autocrat,” Adelman wrote, “he is disinclined to buck the wealthy individuals and corporations who control his party.”

The article by Adelman was all the more unusual because it went after the chief justice directly. Roberts, he said, was “misleading” in his 2005 confirmation hearing testimony when he pledged to be a passive “umpire” calling balls and strikes.

Adelman called that metaphor a “masterpiece of disingenuousness,” saying the court under Roberts “has been anything but passive” as its “hard right majority” has actively participated in “undermining American democracy.”

As president, Donald Trump has repeatedly accused federal judges of being political and beholden to the presidents who appointed them. (JM Rieger/The Washington Post)

The article, entitled “The Roberts Court’s Assault on Democracy,” is scheduled for publication in an unspecified forthcoming issue of the Harvard Law & Policy Review, which describes itself as the official publication of the liberal American Constitution Society. It was published in full at SSRN this month.

Adelman, appointed to the bench by President Bill Clinton in 1997, is a former Democratic state senator in Wisconsin and Legal Aid Society trial lawyer. Perhaps his best-known decision nationally was a 2014 ruling striking down Wisconsin’s voter ID law.

His broad critique of the Roberts court, with particular reference to its decisions on voting rights and campaign finance by corporate interests, is not an uncommon one — coming, that is, from liberal scholars or political leaders, including former president Barack Obama.

But coming from a sitting federal judge in a journal article accompanied by such a blunt attack on Roberts, not to mention Trump, it has attracted uncommon attention.

. . . .

**********

Read the complete article at the link.

So I’m not the only one to note the Chiefie’s “Taneyesque” performance, particularly on issues involving the rights of migrants, refugees, Muslims, and other persons of color. He has joined the regime in “Dred Scottifying” those with brown skins who are entitled to the protection of our Constitution and our laws, which Trump has eliminated without legislation, relying largely on transparently fraudulent “national security rationales.”

But, Roberts hasn’t been much good for African Americans or other minorities either, joining his right winger activist colleagues in disingenuously dismantling key parts of civil rights and voting rights protections and turning an intentionally blind eye to partisan gerrymandering carried out by the GOP to disenfranchise minorities. Election results get skewed and folks actually die as a result of these intentional miscarriages of justice to further a toxic right wing agenda aimed at destroying America’s democratic institutions, promoting inequality, and institutionalizing privilege. As Judge Adelman said “the transformation of the Supreme Court from what he described as a defender of ordinary people and ‘subordinated groups’ to an enabler of an ‘anti-democratic’ Republican agenda.” Right on, Judge A!

I also found this comment telling:

Adelman was unapologetic. “I think it’s totally appropriate to criticize the court when there’s a basis for it,” he said. “Judges are encouraged to comment on the law because we have a particular interest, knowledge and familiarity.”

Compare that with the “muzzling” of the Immigration Judiciary by the Executive reported recently on Courtside. https://immigrationcourtside.com/2020/03/03/🤡🤡clown-court-report-as-due-process-goes-into-death-spiral-regime-muzzles-immigration-judges/

And, as I constantly point out, the Immigration Courts aren’t “courts” at all. They are blatantly unconstitutional “star chambers” run by the Executive Branch with the complicity of the Article III Judiciary who see their work daily and know full well that they are often “rubber stamping” final orders sending folks into potentially life-threatening exile with only a transparently thin veneer of “due process.” But, according to Roberts and his gang, brown-skinned refugees aren’t entitled to even access this process in a reasonable manner, let alone receive the fair hearings to which they are entitled before being “orbited” to potential death in foreign lands. What if it were his wife and kids? I’ll bet their lives would get more consideration.

I also appreciate Judge Adelman’s “spotlighting” the disingenuous testimony of Roberts and other right wingers under oath before the Senate when they “feigned impartiality” to disguise their anti-democracy agenda (without, of course, losing the support of the rightest Republicans who were “licking their chops” at finally getting their long-awaited “judicial wrecking crew” in place).

As one of my esteemed Round Table colleagues said recently: “In the words of Balzac, ‘to distrust the judiciary marks the beginning of the end of society.’”

Unhappily, thanks to Roberts and other complicit Article IIIs, we’re there. Which is exactly how Trump and his supporters want it!

In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.

— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)

How soon we forget!

So much for the bogus ”passive “umpire” calling balls and strikes.”

Due Process Forever! Complicit Courts Never!

PWS

03-11-20

WILL CLUELESS CLOWN COURTS ENDANGER PUBLIC HEALTH & SAFETY? 🤡🤡 — The Inevitable Spread of Coronavirus Is “Old News” & Poorly Designed & Mismanaged Immigration Courts Appear To Be a “High Risk” Potential Breeding Ground — Predictably, Dysfunctional EOIR Has No Contingency Plans In Place! — 100-Case “Master Calendars” in Mini-Courtrooms Bringing Old & Young, Infirm & Able, From Far & Near Together Under Threat Of In Absentia Deportation — What Could Possibly Go Wrong?

NDPA stalwart Laura Lynch, Senior Policy Counsel @ AILA reports:

Flagging this new CNN article along with two letters from the NAIJ.

Letter from NAIJ to Acting Chief Immigration Judge Chris Santoro on the lack of guidance issued to EOIR staff, March 9, 2020

Letter from NAIJ to IJs to provide guidance on the immigration courts and COVID-19, March 9, 2020

CNN: Immigration judges want to know how to handle coronavirus, March 9, 2020

Immigration judges want to know how to handle coronavirus

By Priscilla Alvarez, CNN

Updated 5:04 PM ET, Mon March 9, 2020

(CNN)The union representing immigration judges urged the Trump administration in a letter Monday to “immediately” implement steps to protect judges and their staff and provide guidance on how to proceed amid the coronavirus outbreak, which also has the potential to exacerbate the overwhelming backlog of pending cases.

The letter calls for the Executive Office for Immigration Review, an agency within the Justice Department that oversees the nation’s immigration courts, to inform employees about the plan “as it relates to a potential pandemic,” noting that some immigration court functions “may not lend themselves to telework.”

“As you know, our work requires us to be in close contact with the public on a daily basis, often in very large numbers and groups,” wrote Judge Ashley Tabaddor, president of the National Association of Immigration Judges.

She continued: “Beyond our own employees, the respondents who come before us may also be at high risk for developing serious illness. Because we order their appearance and they face the prospect of removal if they don’t appear, sick respondents and respondents vulnerable to serious illness will keep coming to court unless we take action.”

As concerns over the coronavirus ramp up, some government agencies, businesses and organizations have taken steps to try and prevent the spread of the disease by preparing for employees to telework, limiting travel and canceling gatherings.

In Monday’s letter, the union asked the Trump administration to consider measures such as waiving the appearance of some respondents, allowing for telephonic appearances and limiting in-court paper filings. The union is also recommending in an email to the workforce that judges keep bottles of hand sanitizer in the courtroom, use disinfecting wipes to clean surfaces and limit court attendance.

Any change in daily operations is critical in immigration court, which faces a pile-up of pending cases. Immigrants fighting deportation generally have a chance to make their case in court, where they can ask a judge to allow them to stay in the US by arguing they qualify for asylum or another legal option.

Last year’s US government shutdown, which resulted in some cases being postponed, exacerbated the long-standing issue and added to the backlog. There are more than 1 million pending cases before the immigration courts, according to Syracuse University’s Transactional Records Access Clearinghouse or TRAC, which tracks immigration court data — resulting in cases being scheduled out years in advance.

TRAC estimated last year that between 80,000 and 94,000 immigration court hearings may have been canceled as a result of last year’s government shutdown. The only cases that moved forward during that time were those of immigrants in detention.

The concerns held among immigration lawyers Monday are reminiscent of the government shutdown.

Immigration attorneys are worried about the effect on the backlog of cases if judges, attorneys, and other stakeholders are out because of the illness.

“If this thing gets out of control, it’s always a problem when cases are canceled, given the backlog,” Lawrence K. Le Roy, an immigration lawyer based in Newark, said in reference to coronavirus.

John Leschak, an immigration attorney, had a hearing scheduled Monday at the Newark immigration court for a client seeking asylum in the United States. The judge was not in court and the hearing was postponed. It’s unclear whether the reason behind the judge’s absence was related to coronavirus.

“It’s unfortunate because it’s a case that’s been pending for a long time,” Leschak said. “We’re between a rock and a hard place.”

The coronavirus is also already impacting the operations of some federal courts across the US.

For example, a district court in Washington state and the 9th Circuit Court of Appeals, which hears cases from nine western states including Washington, altered some of the procedures as the virus continues to spread. Washington has seen at least 80 cases.

Unlike other courts, however, immigration courts fall under the executive branch, not the judicial branch.

Ariane de Vogue and Kevin Bohn contributed to this story.

Laura A. Lynch, Esq.

Senior Policy Counsel

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

Thanks Laura, my friend, for keeping us up to date. And, as always, thanks to Priscilla for her great reporting on the never-ending mess and continuing outages at EOIR.

When it comes to public service and professional court administration from “Headquarters,” “today’s EOIR is the pits.” And, that’s not a knock on Chief Judge Chris Santoro who is generally known as a “straight shooter” and a “problem solver.” I think that I’ve acknowledged before that he was always kind and supportive to me and helped me through some very difficult times in my career at Arlington. I’ll always be appreciative for that.

“Reading between the lines,” he was ordered by one of his “superior bozos” in EOIR’s ludicrous “chain of command” to issue the inane order and then to rescind it when everything “hit the fan.” Typical EOIR “march ‘em up the hill, then march ‘em down again nonsense,” that actually has an adverse effect on both internal morale and the public.

On the other hand, perhaps it’s time for those who know how screwed up and “maliciously mismanaged” this system is to “come out and join the resistance,” as others in our Round Table have done, some at considerable personal sacrifice (not me, of course — I was fortunate enough to be able and ready to retire from EOIR even before the current regime took over.) I have no doubt that someone with Chief Judge Santoro’s ample and diverse skill set could find employment in the private sector.

But, this “circus-like” incident raises deeper issues.

In what kind of “court system” are “judges” not allowed to post public notices issued by the CDC without saying “Captain May I?” The DOJ falsely claims that its “judges” are “policy officials.” Whoever heard of a “policy official” who couldn’t hang up a Government public health poster? This whole thing is an unbelievable farce! Why does it take a directive from “Headquarters” to rectify what should be a no brainer in any functioning court system?

And, what kind of “court system” (outside the military) reports to “headquarters.” You think that the U.S. District Courts in Washington called up John Roberts to see if it was OK to cancel trials because of a public health threat? I doubt it.

Why wasn’t NAIJ President Judge Ashley Tabaddor involved in the Coronavirus planning. She speaks for those “on the line” in contact with the public. Certainly, few issues could have a greater effect on “working conditions” than steps to prevent the spread of infectious disease. Why is the NAIJ forced to waste time complaining and going to such lengths when competent management would have involved them in advance planning months ago?

Imagine how much better this system would operate if it were run by real judges who hired professional court administrators to work for the public good, instead of maliciously incompetent clowns carrying out Stephen Miller’s fascist agenda?

As you know, I blame the Article IIIs and Congress for letting this deadly mockery of our Constitution and American Justice continue to operate — essentially to dehumanize, abuse, and sometimes kill. I trust the younger members of the NDPA, folks like Laura and her colleagues, and the next generations to see that the life-tenured judges and legislators who looked the other way and knowingly acted as enablers as human dignity, our Constitution, and the rule of law were trampled upon by a White Nationalist regime are held fully accountable in the “court of history.”

The “J.R. Five’s” toxically improper action in Wolf v. Cook County, skirting the rules to enable the regime’s illegal, racially motivated rewriting of the “public charge” rules to go into effect has been exposed for the outrageous politically biased action it is. It allows the regime to intentionally spread panic in ethnic communities, particularly targeting Hispanics, citizens, immigrants, and the undocumented, and to intimidate those who should be seeking health care advice from doing so. Nice public health policy. As if Coronavirus and other diseases know the difference between “documented” and “undocumented” humans. It’s likely that Roberts and his tone deaf cronies will have even more “blood on their hands” before this is over.

As I said on Courtside recently, in the future, we also need more courageous, scholarly, humane, and ethical Article III Judges — folks who will read the Constitution and stand up for individual rights and for human dignity — folks who understand as MLK once said that “injustice anywhere is a threat to justice everywhere.” The current group of Article IIIs is a national disgrace (as a whole, although there are many notable exceptions, mostly among the U.S. District Court Judges who all too often get reversed by the CAs and the Supremes as their “reward” for “standing tall” for the rest of us and standing up for the fair application of the rule of law).

In the meantime, NAIJ President Judge Ashley Tabaddor is a national hero for standing up for the due process rights of all and having the courage to “speak truth to power” in these perilous times. Obviously, the unethical “decertification action” started by DOJ and EOIR is part of the effort to punish and silence her. Hang in there Ashley! We in the NDPA and the Round Table support and appreciate you and your tireless efforts!

Due Process Forever! Clown Courts 🤡& Complicit Article III Courts Never!

PWS

03-11-20

AS THOSE CHARGED WITH PROTECTING JUSTICE “TOADY UP” & ENABLE TRUMP REGIME’S “CRIMES AGAINST HUMANITY,” ONE GROUP OF CIVIL SERVANTS HAS THE COURAGE TO STAND UP FOR DUE PROCESS, THE RIGHTS OF ASYLUM SEEKERS, & SIMPLE HUMAN DIGNITY: USCIS ASYLUM OFFICERS! BONUS+: My Latest Monday Essay: “Heroes & Enablers”

https://apple.news/AOKo5byofRfKem24qSuLsaA

Joe Jurado reports for The Root:

The immigration policies executed by the Trump administration have been, to be succinct, f***ed up. That’s not even just me saying that. The people who have to execute his policies are saying it too.

The New York Times reports that a union of federal asylum workers has filed an amicus brief stating that a policy from the Trump Administration that diverts migrants to Guatemala is unlawful. The union, National CIS Council 119, represents 700 asylum and refugee officers of the United States Citizenship and Immigration Services. The brief states that international treaty obligations are being violated as a result of having to deport migrants to a country where they will likely face prosecution. The Trump administration made a deal with Guatemala that allows the United States to deport migrants seeking asylum in the States to Guatemala. The union believes that these new rules are forcing them to violate the laws they were trained to uphold.

. . . .

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Read the complete report at the link.

HEROES & ENABLERS — Judges Who Aid The Trump Regime’s Deadly Oppression Of The Most Vulnerable Among Us Will Eventually Hear The Voices Of Those They Abandoned & Dehumanized — Even From The Graves Of The Oppressed, History Will Pass Judgement On The Smugly Powerful Who Abuse The Weak!

By Paul Wickham Schmidt

Courtside Exclusive

March 9, 2020

USCIS Asylum Officers are the “NDPA Heroes of the Week!”

So, one group of courageous civil servants is willing to put their careers on the line to defend the Constitution and the rights of the vulnerable. But, others in more protected positions, like, for example, Supreme Court Justices and some Court of Appeals Judges, are afraid to stand up to Trump and defend the rule of law and the humanity of those whose only “crime” is to trust in our legal protection system. The courage of one group contrasts with the willful ignorance and cowardly complicity of the other. What’s wrong with this picture?

At some point, there will be “regime change” in the Executive as well as the Senate. When that happens, our system needs a complete re-examination of the immigration scholarship, commitment to human rights, and the moral leadership of those we are giving lifetime appointments to the Federal Bench, particularly the Supremes.

Obviously, the system has failed when two current justices choose to use their power and privileged positions disingenuously to rail about the “bogus horrors” of nationwide injunctions, and thereby spur the regime on to even grater abuses, while papering over the real issue of the actual grotesque legal, constitutional, and human rights violations inflicted on migrants and others by a White Nationalist would-be authoritarian regime that would eventually do away with almost all of our legal rights.

In the future, perhaps we should consider elevating more Asylum Officers with law degrees and a record of fair adjudication and speaking truth to power to the Article III Judiciary, including the Supremes. There are younger members of our Round Table of Former Immigration Judges who were forced by the regime into “early retirement” who could bring scholarship, fairness, practicality, and justice back to the Article IIIs. How about some pro bono lawyers, clinical professors, and NGO leaders who combine scholarship with real life experience and whose proven creativity and problem solving skills far exceed the pedestrian and wooden approaches we see all too often from today’s failing Article III Judiciary. Although their efforts are mocked, disrespected, and undermined by complicit Article III Judges, like the “J.R. Five,” these courageous “defenders of democracy and the rights of the weak” are the ones who are in fact keeping our legal system afloat in the face of Article III willful ignorance and complicity in tyranny.

And, we definitely need fewer corporate lawyers (except those who have extensive pro bono immigration/human rights experience), prosecutors, and right wing “think tankers” occupying the Federal bench.We have an oversupply of those folks on the bench right now, and our rights are suffering for it. It will take years, perhaps decades, to repair the damage they are causing and to bring the Federal Judicial system back into a proper balance.

These aren’t “liberal/conservative philosophical questions.” They are black and white questions of moral courage and the willingness to enforce Due Process and protect those whose lives are endangered by the Trump regime’s cruel and lawless programs and constant racially-inspired lies, naked bias, and misrepresentations. Sending folks back to dangerous countries without functioning asylum systems is wrong as a matter of law. Period. Making them “Remain in Mexico” is wrong. Period. A so-called “court system” run by a transparently biased, disingenuous, “uber enforcement” official like Billy Barr does not provide the “fair and impartial adjudications” required by Due Process. Period. Separating families and putting kids in cages and “kiddie gulags” is wrong. Period. Those initiating and carrying out those policies should be chastised and held accountable, not enabled. Period.

Actually, many courageous and scholarly U.S. District Judges have gotten these straightforward legal questions exactly right and promptly entered life-saving injunctions. A number of U.S. Immigration Judges have also courageously adhered to the rule of law in the face of excruciating and unethical pressure from DOJ politicos and their toadies to cut corners and railroad individuals out of the country without due process.

It’s the Supremes and too many Circuit Court Judges who who have “rolled over” for the regime’s cruel and inhuman nonsense. By doing so, they essentially “pull the rug” out from under those judges who have the encourage and integrity to “just say no” to the regime’s constant overreach. In doing so, the Federal Appellate Courts and the Supremes are actually engaging in undermining the system they serve and encouraging “worst practices” and even worse results. What truly reprehensible “role models” for upcoming lawyers. Fortunately, many newer lawyers are members of the New Due Process Army and are ignoring the poor and immoral examples of judicial spinelessness set by their supposed “elders.”

Life tenure protects the jobs and paychecks of Article III Judges. But, it won’t protect them from justified criticism and the ultimate judgement of history. Bashing the oppressed in behalf of those in power might seem like a good short-term strategy. After all, the deported, the abused, and the dead don’t normally get to “write history.”

But others are watching this travesty unfold and are pledged to “give a voice” to those silenced by the gross dereliction of legal duties and ignoring simple human decency and values by many with power who could have put an end to these obscene human rights abuses. Chief Justice Roger Taney might have been hailed by the White Supremacists of his age for his opinion in Dred Scott. But, he hasn’t “weathered the test of time” too well! Nor will Chief Justice Roberts and others who have been “going along to get along” with cruel and illegal abuses wantonly inflicted by the White Nationalist regime on the most needy and vulnerable among us.

Congrats and much appreciation from all of us in the New Due Process Army to USCIS Asylum Officers for your courage and integrity in the face of tyranny!

Due Process Forever; Complicity & Enabling Cruelty Never!

PWS

03-09-20

ROUND TABLE NEWS: Getting The Due Process Message Across — 9th Cir. Orders Regime To Respond To Round Table’s Amicus Briefs in Matter of A-B- Challenges!

Lory Rosenberg — Hon. Lory Diana Rosenberg
Senior Advisor
Immigrant Defenders Law Group, PLLC

Round Table stalwarts Judge Jeffrey S. Chase and Judge Lory Diana Rosenberg report:

Notice of Docket Activity

The following transaction was entered on 03/03/2020 at 3:25:28 PM PST and filed on 03/03/2020

Case Name: Sontos Diaz-Reynoso v. William Barr

Case Number: 18-72833

Document(s): Document(s)

Docket Text:

Filed clerk order (Deputy Clerk: AF): The panel previously ordered that argument for the above-captioned cases would proceed with Diaz-Reynoso v. Barr, No. 18-72833 being argued first. The panel supplements its previous order for argument in this first case, as follows: Petitioner will argue, reserving time for rebuttal if desired, then Amicus Curiae The Center for Gender and Refugee Studies will argue, then Respondent will have an opportunity to respond to both Petitioner and the Amicus, and finally Petitioner may use any time reserved for rebuttal. Additionally, Respondent should be prepared to address the arguments raised by Amici Curiae Thirty-Nine Former Immigration Judges and Members of the Board of Immigration Appeals. [11616996] [18-72833, 18-72735, 18-73434, 19-70489] (AF)

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Great to know that at least some Article IIIs are paying attention. We can only hope that they will act on our expert views and save some very deserving and highly vulnerable lives. Of course, we couldn’t have gotten this far without the amazing pro bono team over at Gibson Dunn!

Knjightess — Knightess of the Round Table

PWS

03-08-20

LOWERING THE BARR — U.S. District Judge Reggie Walton Enters “Adverse Credibility Ruling” Against Billy Barr! — “The attorney general’s ‘lack of candor’ and ‘misleading public statements,’ Walton concluded, undermine his ‘credibility,’ and the credibility of the DOJ.”

https://slate.com/news-and-politics/2020/03/barr-mueller-report-redactions-foia.html

Mark David Stern reports for Slate:

Attorney General William Barr’s wildly inappropriate campaign to spin the Mueller report in Donald Trump’s favor last year may have finally backfired. On Thursday, U.S. District Judge Reggie Walton ordered Barr to submit the full, unredacted report so he could assess whether the Department of Justice’s redactions comply with the Freedom of Information Act. Walton’s remarkable order noted that Barr’s “misleading public statements” about the report raise the possibility that his redactions are “tainted” and “self-serving”—and, by extension, illegal.

On March 24, Barr notoriously provided a “summary” of the 381-page Mueller report just two days after receiving it. He cited special counsel Robert Mueller’s report as saying that the investigation “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities,” leaving out the damaging first half of that sentence. Barr also wrote that he and Deputy Attorney General Rod Rosenstein had concluded “that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” In reality, Mueller had determined that he would not offer an opinion on the matter but that the evidence gathered was not sufficient to clear Trump of obstruction of justice.

Three days after Barr released his summary, Mueller sent a letter to the attorney general stating that the summary “did not fully capture the context, nature, and substance” of the report. When members of Congress asked Barr about Mueller’s possible objections to his summary, he flatly lied. And on April 18, Barr delivered a stunningly dishonest press conference effectively announcing that the report exonerated the president.

In his Thursday order, Walton took issue with both the “summary” and the press conference. Barr’s initial summary, he wrote, “distorted the findings in the Mueller Report” in at least two ways. First, Barr “failed to indicate” that Mueller “identified multiple contacts” between the Trump campaign “and individuals with ties to the Russian government.” Second, he excluded the fact that Mueller “determined not to make a traditional prosecutorial judgment” about Trump’s alleged obstruction of justice, falsely implying that the report found no obstruction.

. . . .

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Read the full article at the link.

So, migrants who tell the truth too often are found to be “not credible” by Barr’s wholly-owned Immigration Judges because of some minor discrepancy in their testimony. But, Barr blatantly and openly lies and gets to continue screwing up our justice system. What’s wrong with this picture?

Uh, “lack of candor tribunals” — isn’t that a ground for discipline or disbarment?

PWS

03-07-20

LET THE ABUSES CONTINUE, FOR NOW: 9th Cir. Narrows Injunction, Gives Regime More Time To Run To Supremes In “Let ‘Em Die in Mexico” Case!

Alicia A. Caldwell
Immigration Reporter
Wall Street Journal

https://www.wsj.com/articles/court-that-blocked-remain-in-mexico-policy-allows-trump-plan-to-continue-for-now-11583384892?emailToken=3d88d04ba6e0267b24183aeb003a59841pEMx5ESI74stBjp+ZpKYErsxvBZHs4r7z2JEGHjqSpm7KZjdf8IJ/iZcdhOB2Ytav16Qr6r69LWwl/7qGG8nBDWbh74ZK0/s0LOHmwoISQqsM1pgRKc/uJmRZWGyLejN3fPtK25mg+isMJHOciZTg%3D%3D&reflink=article_email_share

Brent Kendall and Alicia Caldwell report for the WSJ:

A federal appeals court for now agreed to narrow the effect of its recent ruling that blocked a Trump administration policy of returning immigrants at the southern U.S. border to Mexico while their requests for asylum are considered.

The San Francisco-based Ninth U.S. Circuit Court of Appeals, in an order issued Wednesday, said it ruled correctly last week that the administration’s “Remain in Mexico” policy is unlawful. But the court acknowledged the “intense and active controversy” over nationwide injunctions against administration policies and said it would limit its ruling for now to the two border states within its jurisdiction: Arizona and California.

. . .

The Ninth Circuit also said none of its ruling would go into effect until March 12, to give the Trump administration a week to ask the Supreme Court for an emergency stay to keep the policy in place every-where for the time being.

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The plaintiffs have already “won” this case about the regime’s unlawful actions twice. But, they are yet to get any meaningful relief. Instead, folks continue to suffer and be irreparably harmed while the wheels of justice slowly grind.

PWS

03-06-20

“POLITBURO COURTS” ARE CLOWN COURTS🤡🤡: ANOTHER IMMIGRATION JUDGE QUITS AFTER IMPROPER REGIME PRESSURE TO TILT RESULTS!

Andrew Naughtie
Political Reporter
The Independent

Hon. Charles Honeyman — Honorable Charles Honeyman
Retired U.S. Immigration Judge
Member, Round Table of Former Immigration Judges

https://apple.news/A5ORx13cZQ3ar2fi70BcjJA

Andrew Naughtie reports for The Independent:

An immigration judge in Philadelphia has stepped down from the bench early citing pressure from the Trump administration, which he says is turning the Immigration Court into a “politburo rubber stamp”.

Speaking to the Philadephia Inquirer, Judge Charles Honeyman described how he left the bench earlier than he had planned after the government began taking a harder line on immigration and deportation cases.

“At some point I was just not comfortable,” he told the paper.

Judge Honeyman is now joining the immigration law firm of Solow, Isbell, & Palladino, which specialises in immigration cases. There, he will provide litigation advice to clients facing deportation.

Immigrants subject to removal cases often struggle to gain legal representation in the court system, with up to two thirds going into their cases without counsel – radically reducing their chances of remaining in the US.

‘Families belong together’ protests over Trump immigration policy

The Immigration Court system sits outside the judiciary and is governed instead by the Justice Department’s Executive Office for Immigration Review. That means it is subject to direct political pressure from the administration, including instructions from the attorney general, whose interpretation of the law immigration judges are meant to follow.

. . . .

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Read the complete article at the link.

Proud that Judge Honeyman is a member of the Round Table of Former Immigration Judges.

PWS

03-05-20

THE GIBSON REPORT — 03-02-20 — Compiled by Elizabeth Gibson, Esquire, NY Legal Assistance Group

TOP UPDATES

Federal judge rules Cuccinelli appointment unlawful

Politico: The order strikes down directives from Cuccinelli that sped up asylum-seekers’ initial screenings limited extensions of those hearings, on the grounds that Cuccinelli lacked authority to issue them.

New Rule Seems Designed to Halt Valid Immigration Court Petitions By Drastically Hiking Fees

AILA expressed serious concerns about a new proposed rule that would detrimentally impact individuals seeking a fair day in immigration court by drastically increasing fees required for forms submitted to EOIR. [Fee to appeal an immigration judge decision would go from $110 to $975.] AILA Doc. No. 20022800

Appeals court pauses its ruling that dealt major blow to administration’s immigration agenda

CNN: A federal appeals court temporarily allowed the Trump administration to continue sending migrants to Mexico to wait for their immigration hearings in the US, hours after issuing a ruling that ended the policy.

Sanctuary States, City Lose Appeal on Federal Grant Cuts

Courthouse News: Reversing a sweeping injunction, the Second Circuit gave the Justice Department a green light Wednesday to withhold funding from New York City and seven states in retaliation for their sanctuary policies on immigration. See also TRAC Reports That ICE Sent Detainers to 3,671 Law Enforcement Agencies in FY2019.

An Anti-Immigrant Law That Goes Too Far, Even for the Supreme Court

Slate: Remarkably, a majority of the justices seemed prepared to invalidate the statute, or at least dramatically narrow its scope. As hostile as this court is to immigrants, it may draw the line at a law that literally criminalizes immigration advocacy.

White House chief of staff Mick Mulvaney caught on tape saying US is “desperate” for more immigrants

Salon: He further undermined the administration’s claims of its economic prowess, admitting that immigration is necessary for sustained economic growth. See also U.S. population will decline faster without steady immigration, Census report says.

The Department of Justice Creates Section Dedicated to Denaturalization Cases

DOJ: The Denaturalization Section will join the existing sections within the Civil Division’s Office of Immigration Litigation—the District Court Section and the Appellate Section. This move underscores the Department’s commitment to bring justice to terrorists, war criminals, sex offenders, and other fraudsters who illegally obtained naturalization.

The Trump Administration Is Gagging America’s Immigration Judges

Atlantic: For more than two years, immigration judges have been subject to a policy that more or less prevents them from performing an essential part of their civic duties: speaking publicly about their work.

The Absurdity and Danger of Trump’s Deal to Send Asylum Seekers to Guatemala

MJ: Since the first flight in November, the Trump administration has sent more than 700 Hondurans and Salvadorans to Guatemala, about 75 percent of whom are women and children.

An early look at the 2020 electorate

Pew: Taken together, this strong growth among minority populations means that a third of eligible voters will be nonwhite in 2020, up from about a quarter in 2000. This increase is at least partially linked to immigration and naturalization patterns: One-in-ten eligible voters in the 2020 election will have been born outside the U.S., the highest share since at least 1970.

TRAC Reports on Application of Public Charge Laws in Immigration Removal and Enforcement

Analyzing government records, TRAC found that, in the recent past, public charge laws have rarely been used to remove individuals from the U.S. and that there is “little data to suggest that America’s immigration enforcement institutions are awash in immigrants who are unable to be self-sufficient.” AILA Doc. No. 20022836

LITIGATION/CASELAW/RULES/MEMOS

I-765 and N/A N/A N/A None N/A

The I-765 instructions state that all questions must be answered or state “N/A” or (where the question asks for a numerical response, such as number of children) “none.” See also Updated Advisory: Blank Spaces on Form I-918, Petition for U Nonimmigrant Status

Page Limits and Laptops at EOIR

EOIR practice manual updates include a 25-page briefing limit and an electronic devices policy that permits the use of laptops. Reports indicate people have been able to use laptops at MCHs and Individuals in NYC. The index of updates starts on page 263 of the practice manual.

Attorney General Refers Case to Himself and Then Vacates Board’s Decision on Definition of “Torture”

The AG vacated the BIA’s decision granting deferral of removal under CAT and remanded for review, noting that the BIA should consider de novo respondent’s claim that it is more likely than not that he will be tortured upon return to Mexico. Matter of R-A-F-, 27 I&N Dec. 778 (A.G. 2020) AILA Doc. No. 20022701. See also The Real Message of Matter of R-A-F-.

BIA Affirms Ruling That Sexual Offense in Violation of a Maryland Statute Enacted to Protect Minors Is a CIMT

Reaffirming Matter of Jimenez-Cedillo, 27 I&N Dec. 1 (BIA 2017), the BIA ruled that sexual solicitation of a minor in violation of section 3-324(b) of the Maryland Criminal Law is categorically a crime involving moral turpitude. Matter of Jimenez-Cedillo, 27 I&N Dec. 782 (BIA 2020) AILA Doc. No. 20022735

Herrera-Reyes v. Barr

CA3: This case presents the question whether and under what circumstances threats of violence may contribute to a cumulative pattern of past persecution when not coupled with physical harm to the asylum-seeker or her family. We conclude the Immigration Judge and the Board of Immigration Appeals erred in holding that Petitioner Jeydi Herrera-Reyes— a Nicaraguan national who received death threats from members of the governing Sandinista Party after her home was burned down, a convoy in which she was traveling came under gunfire, and a political meeting she was organizing was robbed at gunpoint—had not suffered past persecution within the meaning of the asylum statute. We will therefore grant the petition for review and vacate and remand to the BIA.

Ali v. Barr

CA5: Nadeem Ali lost his status as a legal permanent resident (“LPR”) when he was convicted of certain drug offenses. He challenges that result by arguing that—at the time of his drug convictions—he was both an LPR and an asylee. The Board of Immigration Appeals (“Board” or “BIA”) disagreed. So do we.

Supreme Court Says Bivens’ Holding Does Not Extend to Claim Based on Cross-Border Shooting by CBP Agent of Mexican Teen

The Supreme Court refused to extend a claim under Bivens v. Six Unknown Fed. Narcotics Agents into the new context of cross-border shootings, finding that the family of a Mexican teen could not pursue a damages suit against the CBP agent who shot him. (Hernandez v. Mesa, 2/25/20) AILA Doc. No. 20022601

Argument preview: What process is due in streamlined administrative procedures?

SCOTUSblog: Department of Homeland Security v. Thuraissigiam, which will be argued on March 2, raises important questions about whether asylum-seekers may challenge mistakes made during the expedited removal process.

DHS employee told to report to work in Newark after China travel, in violation of coronavirus quarantine, complaints say

WaPo: A Department of Homeland Security employee who returned from travel to China was told by her supervisor to report to her workplace in early February in apparent violation of a mandatory 14-day coronavirus quarantine period, according to complaints filed Friday by the union that represents the woman’s co-workers.

Safe Horizon and ASISTA File FOIA Request Seeking Immigration Policy Data Related to U-Visa Adjudications

Safe Horizon and ASISTA filed a Freedom of Information Act (FOIA) request with USCIS for immigration policy data on the adjudication of U visa petitions and adjustment of status applications for those granted U visa status. AILA Doc. No. 20022832

USCIS Issues Alert on Rescheduling Appointments Due to Coronavirus (COVID-19)

USCIS issued an alert advising individuals to follow instructions on the appointment notice and to reschedule appointments or interviews with USCIS if they were in China within 14 days of their appointment; believe they may have been exposed to COVID-19; or are experiencing flu-like symptoms. AILA Doc. No. 20022736

Presidential Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus

President Trump issued a proclamation that, with some exceptions, suspends and limits entry into the U.S., as immigrants or nonimmigrants, of persons who were physically present in Iran during the 14-day period preceding their entry/attempted entry. This proclamation also amends Proclamation 9984. AILA Doc. No. 20030235

USCIS Issues Policy Guidance on the Effect of Breaks in Continuity of Residence on Eligibility for Naturalization

USCIS issued policy guidance clarifying that naturalization applicants absent from the U.S. during the statutory period for more than six months but less than a year must overcome the presumption that the continuity of residence has been broken in order to remain eligible for naturalization. AILA Doc. No. 20022634

USCIS Announces Re-Registration Period Now Open for Current TPS Beneficiaries Under Yemen’s Designation

USCIS announced that current beneficiaries of TPS under Yemen’s designation who want to maintain their status through 9/3/21 must re-register between 3/2/20 and 5/1/20. USCIS will issue new EADs with a 9/3/21 expiration date to eligible beneficiaries who timely re-register and apply for an EAD. AILA Doc. No. 20030231

RESOURCES

Updated Advisory: Blank Spaces on Form I-918, Petition for U Nonimmigrant Status

Gangs and Modern-Day Slavery in El Salvador, Honduras and Guatemala: A Non-Traditional Model of Human Trafficking

Preparing Your Practice for Public Charge Cases

‘How do I convince the Home Office I’m a lesbian?’

Practice Pointer: Requesting to Interfile or Transfer the Preference Category of a Pending I-485 Application

USCIS Issues Policy Alert on Implementation of Guidance on Inadmissibility on Public Charge Grounds

Six Personal and Office Management Questions to Ask When Feeling Overwhelmed

AIC fact sheet on sanctuary policies

Public Charge Update: Review of DOS Implementation

Reverse Migration to Mexico Led to US Undocumented Population Decline: 2010 to 2018

No Safe Harbor: The Landscape of Immigration Legal Services in New York

EVENTS

3/3/20 Promoting Due Process for Immigrants in New York: RSVP to Renuka Sawhney rsawhney@Vera.org by COB today

3/4/20 Incarceration and Detention: Examining the Mass Incarceration and Detention Privatization Movement and Implications for the Public’s Health

3/5/20 Homeland Security Investigations And Human Trafficking

3/10/20 Webinar: Does ICE have access to your driver’s license data?

3/11/2020 New York’s Promise Package Lobby Day

3/16/20 BIA Appeals

3/18/20 Victory for Liberians in the U.S.: Deferred Enforced Departure, A Pathway to Citizenship, and An Immigration Success Story

3/19/20 2020 Updates and Hot Topics in Family-Based Adjustment of Status Cases

3/22-24/20 NITA Advocacy in Immigration Matters

3/23-27/20 Defenders’ Academy

3/26/20 How to Build a Better Affidavit- Literary Techniques for Legal Writing.

3/30/20 Analyzing Criminal Records for Immigration Cases

3/30/20 40-Hour Overview of Immigration Law

4/30/20 2020 Federal Court Litigation Conference

7/23/20 Defending Immigration Removal Proceedings 2020

10/1/20 Representing Children in Immigration Matters 2020: Effective Advocacy and Best Practices

ImmProf

Monday, March 2, 2020

Immigration Article of the Day: Revisiting Economic Assimilation of Mexican and Central American Immigrants in the United States by Giovanni Peri and Zachariah Rutledge

Asian American lawmakers are calling on their colleagues to halt the spread of rumors regarding coronavirus, in an effort to curb the rising xenophobia and discrimination tied to the illness

The Michigan Compact on Immigration: Business leaders release ‘Michigan Compact’ in support of immigration

Sunday, March 1, 2020

Judge rules Cucinelli unlawfully appointed to run DHS

Your Playlist: Meklit

Trump calls coronavirus criticism Democrats’ ‘new hoax’ and links it to immigration

Saturday, February 29, 2020

The Trump Administration Is Gagging America’s Immigration Judges

Undocumented, Black, and Unseen

Trump Immigration Measures Suffer Setbacks in the Ninth Circuit

Ninth Circuit Refuses to Vacate Sheriff Joe’s Contempt Conviction

Urban Institute: Date on the Children of Immigrants

Scholarship Opportunity for Immigrant Students

Thursday, February 27, 2020

Proving Sexuality

CU Colloquium Features Research on Citizenship: Mapping Citizenship by Carolina Nunez and Rejecting Citizenship by Rose Cuison-Villazor

Growing influence of newly-naturalized voters

Newsweek: Democrats Must Hold Immigration Debate on How They Plan to Stop ‘White Supremacists’ Shaping Policy, Advocates Say

Second Circuit Rules for Trump Administration in Sanctuary Cities Case

Wednesday, February 26, 2020

Berkeley Law: 2020 Riesenfeld Symposium — Borderline: Problems and Perspectives in Global Migration

Teaching Padilla

Immigration Article of the Day: Reverse Migration to Mexico Led to US Undocumented Population Decline: 2010 to 2018 by Robert Warren

The Department of Justice Creates Section Dedicated to Denaturalization Cases

Amy Klobuchar’s record as a DA: Anti-immigrant, anti-people of color?

Justices Seem Inclined to Find Immigration Criminal Statute to Violate the First Amendment

Tuesday, February 25, 2020

U.S. Supreme Court argument preview: What process is due in expedited removal?

Conference: NYU School of Law — Immigration, Equal Protection, and the Promise of Racial Justice The Legacy of Jean v. Nelson

Legal migration to decline by one-third due to Trump policies

Breaking News: Supreme Court decides cross border shooting case

DHS Implements Inadmissibility on Public Charge Grounds Final Rule

Legal immigration will decline by 30 percent next year due to Trump policies, report projects

Supreme Court argument preview: Do federal courts have jurisdiction to review a challenge to an administrative denial of relief under the Convention Against Torture?

Monday, February 24, 2020

White House chief of staff Mick Mulvaney caught on tape saying US is “desperate” for more immigrants

Refugee Docents Help Bring A Museum’s Global Collection To Life

Rothgerber Conference Women’s Enfranchisement: Beyond the 19th Amendment at CU Boulder

Supreme Court to Hear Oral Argument in First Amendment/Immigration Case

Federal Court Stops DHS From Arresting US Citizens’ Foreign Spouses During Marriage Interviews

Visa Indefinitely Delayed for German visiting professor, unable to enter U.S.

From the Bookshelves: The Readmission of Asylum Seekers under International Law by Mariagiulia Giuffré

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Thanks, Elizabeth, for keeping us abreast of all the regime’s assaults on humanity, and then many successful counterattacks being led by the New Due Process Army!

PWS

03-04-20

🤡🤡CLOWN COURT REPORT: As Due Process Goes Into “Death Spiral,” Regime Muzzles Immigration Judges!

Cristian Farias reports in The Atlantic:

For more than two years, immigration judges have been subject to a policy that more or less prevents them from performing an essential part of their civic duties: speaking publicly about their work.

Since September 2017, immigration judges and all other employees at the Justice Department’s Executive Office for Immigration Review have been required to adhere to an onerous pre-approval process whenever they desire or are invited to speak publicly on any issue, immigration-related or not. I learned of the policy through a Freedom of Information Act request my colleagues made to the department, as part of an investigation I’ve been conducting on the intersection of free speech and U.S. border enforcement.

Read: The thousands of children who go to immigration court alone

It is not uncommon for government agencies to set rules on employee conduct and outside activities. But the perspective of immigration judges is particularly valuable to the public, especially one grappling with complicated questions about America’s immigration laws. In his 2019 year-end report on the federal judiciary, Chief Justice John Roberts commended American judges who, “without fanfare or acclaim,” take time to reach out to their communities in all sorts of public-education initiatives. As Ashley Tabaddor, the president of the National Association of Immigration Judges, told Congress in 2018, immigration judges “help the community better understand our immigration courts and their function in the community, helping to demystify the system and bring transparency about our operations to the public.”

Although immigration judges are employees of the executive branch, they’re judges in the truest sense of the term, presiding over cases that have enormous consequences for asylum seekers or people facing removal from the U.S. The Trump administration appears determined to remove from the public’s view the very people the chief justice and Tabaddor believe play an essential role in promoting public confidence in the administration of justice. The Justice Department should heed their call—rescind its misguided policy and let judges speak.

In the 2017 memo, the official overseeing the work of immigration judges, James McHenry III, did acknowledge that “the public has become increasingly interested in hearing about, and understanding, what the agency does and specifically how Immigration Courts operate.” But the policy went on to severely restrict judges’ freedom to speak even in a personal capacity about these matters, requiring them to seek permission through the chain of command. “Supervisors will determine the capacity in which an employee is speaking,” McHenry’s memo stated, thus effectively eliminating a judge’s discretion to speak about immigration in public settings, even with a disclaimer that he or she was doing so in a personal capacity. Supervising judges and other senior employees have it even worse—they are simply forbidden from speaking at public events in a personal capacity at all.

Lawyers at the Knight First Amendment Institute at Columbia University, where I’ve been conducting my investigation, believe that the policy violates the First Amendment, and in early January issued a letter asking the Justice Department to suspend it. Their reasoning was grounded in well-settled Supreme Court precedent. In the 1968 case Pickering v. Board of Education, the Supreme Court recognized that public employees’ “right to speak on issues of public importance” doesn’t vanish the moment they take a government job. For the government to restrain public employees’ ability to speak, the Supreme Court has said, the Constitution requires officials to show that their interest in restraining speech outweighs employees’ interest in speaking and the public’s interest in hearing what they have to say. “The Government must show,” Justice John Paul Stevens explained in a 1995 case, “that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression’s ‘necessary impact on the actual operation’ of the Government.” That’s a heavy lift.

The Justice Department hasn’t officially responded to the lawyers’ letter. But in mid-January, McHenry’s office did reply in a way: It purported to reissue the 2017 memorandum, calling it “established policy,” and unveiled an online portal through which immigration judges may submit their speaking-engagement requests for approval. According to the department, the new portal was necessary “to provide for more certainty and clarity” for judges, an implicit acknowledgment that the earlier guidance was causing confusion among immigration judges. (The reissued policy hasn’t been made public, but a person familiar with it showed it to me.)

. . . .

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Read Cristian’s complete article at the above link.

”The truth will set you free.” But, at EOIR, the truth will get you fired!

Given the due process and management disasters going on at EOIR, it’s not surprising that they want to silence the witnesses. What is surprising is that they have been getting away with it so far.

NOTE: Even prior to becoming the home of EOIR Headquarters, Bailey’s Crossroads had long reputation of being associated with the circus. However, more recent scholarship has cast doubt on those claims. According to this Washington Post article, Bailey’s Crossroads’ claimed association with the Ringling Bro’s Barnum & Bailey Circus might be as attenuated as EOIR’s claimed association with due process and fundamental fairness! https://www.washingtonpost.com/archive/local/2002/05/19/history-at-the-crossroads/5da541c9-5aa4-49cc-83f9-7ecb49a1b12b/

However, what the article does correctly point out, and EOIR under the influence of the White Nationalist regime appears to have forgotten, is that Bailey’s Crossroads has a long history of being a vibrant community of industrious immigrants who made Northern Virginia into what it is today!

Due Process Forever; Clown Courts Never!

PWS

03-03-20

HON. JEFFREY S. CHASE: The Message From Barr’s Improper Intervention in Matter of R-A-F-: Forget The Law, You Are My Stooges! — Only An Independent Article I Immigration Court Will End This Mockery of Due Process & Fundamental Fairness!

https://www.jeffreyschase.com/blog/2020/3/1/the-real-message-of-matter-of-r-a-f-

The Real Message of Matter of R-A-F-

On February 26, the Attorney General (or more likely, someone authorized to speak on his behalf) issued a precedent decision in Matter of R-A-F-. My take on the import of this decision seems to be different than most. Let me first provide some background.

Most people seeking asylum in this country also apply for a lesser form of protection called withholding of removal under Article III of the U.N. Convention Against Torture (“CAT” for short). Whereas asylum provides a path to U.S. permanent residence, CAT only prevents someone with a deportation order from being sent to a country in which they are likely to suffer torture. CAT generally only comes into play where the applicant isn’t found eligible for asylum, something which is happening more frequently as the present administration churns out new bars and obstacles to eligibility.

To provide an example, someone who establishes they will likely be murdered or raped if returned to their country may be barred from even applying for asylum if they didn’t file their application within one year of their arrival in this country, or if they did not apply for asylum in a third country they passed through en route to the southern border. Even if allowed to apply, they may still be denied asylum if the immigration judge does not determine that their persecution would be for the proper motive. But while our asylum laws as written allow some leeway as to whom the government will afford permanent status in the U.S., the same government is bound by international treaty not to send an individual to a place where they would suffer persecution. It is often CAT that fills the gap between those who are not permitted to remain permanently but should nevertheless not be repatriated.

The U.S. was one of 154 countries to sign the U.N. Convention Against Torture. However, it was the only country to add a “specific intent” requirement to its internal regulations implementing the convention, requiring a finding that the torture “be specifically intended to inflict severe…pain and suffering,” and specifically excluding acts that result “in unanticipated or unintended severity of pain or suffering.”1 The specific intent requirement seriously undermines the purpose of the law, as many are forced to rely on CAT specifically because they couldn’t prove the proper intent of their persecutor that is required for asylum. It is thus necessary for the specific intent provision to be interpreted in the least restrictive manner for CAT to function in its intended way.

In 2002, the BIA had its first chance to interpret how the specific intent requirement should be applied in a case called Matter of J-E-. At the time, the BIA was comprised of judges holding diverse views of the law. As a result, the Board was sharply split on the issue. The more restrictive reading won out, but 6 judges dissented.2 Five of them were no longer on the BIA a year later following then Attorney General John Ashcroft’s infamous purge of Board judges whom he viewed as too liberal.

An important point that was glossed over in the majority opinion in Matter of J-E- and its progeny is that where governments do intentionally maintain horrific conditions in its prisons or mental institutions that are intended to punish those institution’s populations, they tend to be smart enough not to admit to it. To illustrate this point, I refer to a November 12, 2019 report of the Washington Post finding that although the Trump Administration characterized its outrageous treatment of unaccompanied immigrant children as an unintended consequence of the volume of immigrants seeking asylum at the border, such outcome “also was a result of policy decisions that officials knew would ensnare unaccompanied minors in bureaucratic tangles and leave them in squalid conditions.”

Cognisant of this fact, in his dissenting opinion in Matter of J-E-, Hon. Paul W. Schmidt found the specific intent requirement to be satisfied by a “clearly documented acceptance of extreme mistreatment amounting to torture as a routine aspect of detention in Haiti.” Concluding that the Haitian government “cannot claim it does not know what happens to detainees in its prisons,” Judge Schmidt found the specific intent requirement to have been met. Hon. Lory D. Rosenberg began her companion dissenting opinion in the case by quoting from the Second Circuit that “Among the rights universally proclaimed by all nations . . . is the right to be free of physical torture.”3

In late 2018, the BIA again rejected such arguments and reiterated the majority view of J-E- in another precedent decision, Matter of J-G-R-P-. This time, the BIA did so in a three-judge panel decision in which there were no dissents. As this decision was published less than 16 months prior to the A.G.’s decision in R-A-F-, there was really no need at the time the A.G. issued R-A-F- for another decision on the topic.

I thus believe the real motive behind issuing the decision was not to give guidance, but rather to serve warning. While published precedential decisions have always received broad attention, individual BIA appellate judges have felt safe affording relief in sympathetic cases in unpublished decisions where the outcome is generally known only to the parties involved.

A colleague recently made me aware of a job posting within EOIR for an attorney to work not for the Immigration Courts or the BIA, but rather within the office of EOIR’s director, James McHenry, who has imposed the administration’s political will on the agency’s judges with a heavy hand. The job description included “review(ing) court cases including appeals cases for adherence to procedural requirements, proper interpretation and application of statutes, regulations and precedents,” and “recommend(ing) action on precedent-setting issues to senior officials.” In other words, McHenry was looking to hire what is commonly referred to as a “snitch” to sort through decisions that might not pass muster with the likes of Stephen Miller, and flag them for corrective action. One such shameless staffer apparently flagged R-A-F- in this manner, and through the resulting A.G. certification, the case will serve as a cautionary tale for a group of BIA judges that certainly hasn’t forgotten the fate of the Matter of J-E- dissenters.

The decision in question was issued in September by Appellate Immigration Judge Linda Wendtland, whose retirement party was held this past week. Judge Wendtland is by no means a liberal, and worked the majority of her career for the Department of Justice; prior to her appointment to the BIA, she had been an assistant director with the DOJ’s Office of Immigration Litigation. But Judge Wendtland is highly knowledgeable of the law, and is reasonable and fair (all endangered qualities on the present BIA).

Looking to Judge Wendtland’s decision below, it would be difficult to find a more sympathetic applicant than R-A-F-. The respondent seeking CAT protection is in his 70s, and suffers from Parkinson’s disease, dementia, Major Depressive Disorder, traumatic brain injury, PTSD, and chronic kidney disease. The evidence of record established that if returned to his native Mexico, R-A-F- faced a significant risk of being institutionalized in a facility in which he could be subject to physical and sexual abuse, physical and chemical restraints, and containment in cages and isolation rooms, all without access to justice. Judge Wendtland agreed with the Immigration Judge that such treatment rose to the definition of torture.

Based on her reputation and body of work, Judge Wendtland is undoubtedly someone who had earned the right to have her decision in R-A-F- accorded deference. However, these are different times. And instead of deference, the A.G. (who, of course, knows next to nothing about immigration law or the specific matter in question) chose to unceremoniously refer to himself and then slam the BIA’s decision. The legacy of such action will be fully felt the next time a single judge at the BIA has the opportunity to affirm a similarly sympathetic grant of relief, but will instead choose not to do so out of fear and self-preservation. This is not how justice should be afforded to our country’s most vulnerable population.

Notes:

8 C.F.R. § 1208.18(a)(5).

I am proud to note that the authors of the two dissenting opinions, Paul W. Schmidt and Lory D. Rosenberg, and former BIA judge Cecelia Espenoza, who joined in both dissents, are presently members of the Round Table of Former Immigration Judges.

Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980).

Copyright 2020 Jeffrey S. Chase. All rights reserved.

Reprinted with permission.

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

Thanks, Jeffrey my friend, for the “shout out” for the dissents of Lory, Cecelia, and me in Matter of J-E-!

I recently reached the same conclusion as Jeffrey about R-A-F-, although in less scholarly, measured, and elegant terms: https://immigrationcourtside.com/2020/02/28/barr-to-his-wholly-owned-immigration-judges-just-deny-cat-protection-any-ol-ground-will-do-matter-of-r-a-f-27-in-dec-778-a-g-2020/.

I have said before that I always respected Judge Wendtland. She was a scholarly, industrious, fair-minded, “center right” jurist. While I had been exiled from the BIA before she was appointed, she seemed like a judge with whom I would have enjoyed having a continuing dialogue, much like my more conservative, yet thoughtful and scholarly, friend the late Judge Lauri Steven Filppu. And, we probably would have ended up on the same side of a number of issues coming before the BIA.

It’s both disheartening and enraging to see that even “conscientious conservative” jurists like Judge Wendtland get no real respect and deference from the likes of Billy Barr and his toady colleagues. And, the function of having Director McHenry “ride heard” on the BIA is both unethical and stupid, since he is not an Immigraton Judge himself. Indeed, the gross incompetence with which todays’ EOIR is managed suggests that the Director’s sole role should be to attend to the failing administrative and support structure of the Immigration Courts in a nonpartisan, apolitical manner under the direction of, not overseeing, the BIA Chair and the Chief Immigration Judge.

This system is broken! Every time an Article III Circuit Court signs off on an order of removal resulting from this unconstitutional, unethical, and grossly mismanaged morass, those Article III Judges enable the regime’s continuing fraud, waste, and abuse, and shirk their sworn constitutional duties.

PWS

03-02-20

WHAT DOESN’T HE UNDERSTAND ABOUT “ILLEGAL?” —“Cooch Cooch” Found To Have “Illegally Entered” USCIS Position! — Some Illegal White Nationalist, Anti-Asylum Directives Cancelled!

Judge Randy Moss — Hon. Randy Moss
U.S. District Judge
Washington, DC

Randy Moss
NFL Hall of Fame Wide Receiver (Todd Buchanan / Pioneer Press)

"Cooch Cooch" — “Cooch Cooch” Rewrites America’s Welcoming Message for White Nationalist Nation

L.L.-M. V. Cuccinelli, D. D.C. (Judge Moss), 03-01-20

U.S. District Judge Randy Moss (not to be confused with the NFL hall of fame receiver, one-time “bad boy,” and now commentator of the same name) ruled that Cooch Cooch was illegally appointed to his position of Acting Director of USCIS, thereby invalidating some of his written anti-asylum directives aimed at denying fair processing during the credible fear process and perhaps killing brown-skinned asylum seekers.

KEY QUOTE FROM JUDGE MOSS’S OPINION:

The Court concludes that it has jurisdiction over Plaintiffs’ challenges to the reduced-time-to-consult and prohibition-on- extensions directives and that it lacks jurisdiction over Plaintiffs’ challenge relating to the in- person-orientation directive. The Court also concludes that Cuccinelli was not lawfully appointed to serve as the acting Director of USCIS and that, accordingly, the reduced-time-to- consult and prohibition-on-extensions directives must be set aside as ultra vires under both the FVRA, 5 U.S.C. § 3348(d)(1), and the APA, 5 U.S.C. §706(2)(A). Finally, the Court sets aside the individual Plaintiffs’ negative credible-fear determinations and expedited removal orders and remands to USCIS for further proceedings consistent with this decision.

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

Although only tangental to the actual result reached by Judge Moss, his detailed description of how the regime has unconstitutionally and immorally skewed the credible fear process to screw asylum seekers, largely based on their race, as opposed to acting in good faith to insure that needed protection is granted under U.S. law without regard to political pandering or racial bias, should outrage every American. It also points out how, even though this has been going on since June 2019, and thousands of individuals’ lives have been endangered by this illegal and immoral action, Federal Courts are only now beginning to “scratch the surface” of the regime’s invidious assault on asylum seekers from south of our border.

Indeed, in a move likely to warm the hearts (if, in fact, they have such organs) of Trumpist Judges like Gorsuch and Thomas, Judge Moss limited his order to the five individual named plaintiffs rather than entering the highly controversial, yet totally justified in cases like this, “nationwide injunction.” That means that thousands of similarly situated individuals who were screwed by Cooch Cooch’s scofflaw behavior will have to sue individually to get the law properly applied to them. That assumes that they are still alive and able to sue.

While the decision correctly points to numerous serious defects in the regime’s operation of USCIS, the practical effects might remain small. The regime can always seek to have it undone by the D.C. Circuit or the compliant “J.R. Five” on the Supremes. They also should be able to find some Senate-confirmed politico who was on duty on June 1, 2019 and simply have Trump appoint him or her “acting” and order them to re-issue Cooch’s “Miller-approved” White Nationalist directives on pain of dismissal. Surely, there is never a shortage of toadies among Trump’s gang of sycophants.

Clearly, the only real way to save our democracy and save the lives we should be saving is to vote for regime change, at all levels, this November. Otherwise, we might all find ourselves “Cooched” at some point in the future!

For now, maybe “Cooch Cooch” should be required to join his fellow “illegals” fighting for their existence in squalor and cruel and inhumane conditions under bridges and on street corners on the Mexican side of the border! Or, perhaps he should be “orbited” to Guatemala, El Salvador, or Honduras to pursue his claims from there! One truly scary thing: “Cooch Cooch” was actually once the top “legal” officer of the Commonwealth of Virginia, serving a purely awful term as Attorney General. Thankfully, we Virginia voters had the good sense to send him packing when he ran for Governor!

PWS

03-01-20

WELL, THAT DIDN’T TAKE LONG: After Enjoining the Regime’s “Let ‘Em Die in Mexico” Program On Friday, 9th Cir. Appeals Panel Later “Suspends” Its Order Pending Further Responses From The Parties — Gov’s Illegal Abuse of Asylum Seekers Allowed to Continue for Now!

https://apple.news/AdZkiR13zQPmHAlPE8ZIKXw

Elliott Spagat reports for AP:

SAN DIEGO (AP) — A 9th U.S. Circuit Court of Appeals panel voted unanimously Friday to suspend an order it issued earlier in the day to block a central pillar of the Trump administration’s policy requiring asylum seekers to wait in Mexico while their cases wind through U.S. courts.

The three-judge panel told the government to file written arguments by the end of Monday and for the plaintiffs to respond by the end of Tuesday.

The Justice Department said at least 25,000 asylum seekers subject to the policy are currently waiting in Mexico and expressed “massive and irreparable national-security of public-safety concerns.”

Government attorneys said immigration lawyers had begun demanding that asylum seekers be allowed in the United States, with one insisting that 1,000 people be allowed to enter at one location.

“The Court’s reinstatement of the injunction causes the United States public and the government significant and irreparable harms — to border security, public safety, public health, and diplomatic relations,” Justice Department attorneys wrote.

Customs and Border Protection had already begun to stop processing people under the policy.

ACLU attorney Judy Rabinovitz called the suspension of Friday’s order “a temporary step.”

“We will continue working to permanently end this unspeakably cruel policy,” she said.

. . . .

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

Read the full report at the link.

Remember what I said in my post yesterday: “But, hold the ‘victory dance.’” It’s not over till it’s over. And this one might not be over until the regime sends the last asylum seeker to death or into harm’s way, thereby achieving their “ultimate deterrent” at the expense of human lives and the rule of law.

Of course, the Government’s health, national security, and public safety concerns are phony as a three-dollar bill. But, that might or might not make any difference.

Stay tuned.

PWS

02-29-20

FINALLY: SPLIT 9TH CIR PANEL ENTERS NATIONWIDE INJUNCTION AGAINST “LET ‘EM DIE IN MEXICO” A/K/A “MIGRANT ‘PROTECTION’ PROTOCOLS” — Innovation Law Lab v. Wolf

9thMPPInjunction

Innovation Law Lab v. Wolf, 9th Cir., 02-28-20, published

PANEL: Ferdinand F. Fernandez, William A. Fletcher, and Richard A. Paez, Circuit Judges.

OPINION BY: Judge William A. Fletcher

DISSENTING OPINION: Judge Ferdinand F. Fernandez

KEY QUOTE FROM MAJORITY:

In addition to likelihood of success on the merits, a court must consider the likelihood that the requesting party will

INNOVATION LAW LAB V. WOLF 49

suffer irreparable harm, the balance of the equities, and the public interest in determining whether a preliminary injunction is justified. Winter, 555 U.S. at 20. “When the government is a party, these last two factors merge.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).

There is a significant likelihood that the individual plaintiffs will suffer irreparable harm if the MPP is not enjoined. Uncontested evidence in the record establishes that non-Mexicans returned to Mexico under the MPP risk substantial harm, even death, while they await adjudication of their applications for asylum.

The balance of equities favors plaintiffs. On one side is the interest of the Government in continuing to follow the directives of the MPP. However, the strength of that interest is diminished by the likelihood, established above, that the MPP is inconsistent with 8 U.S.C. §§ 1225(b) and 1231(b). On the other side is the interest of the plaintiffs. The individual plaintiffs risk substantial harm, even death, so long as the directives of the MPP are followed, and the organizational plaintiffs are hindered in their ability to carry out their missions.

The public interest similarly favors the plaintiffs. We agree with East Bay Sanctuary Covenant:

On the one hand, the public has a “weighty” interest “in efficient administration of the immigration laws at the border.” Landon v. Plasencia, 459 U.S. 21, 34 (1982). But the public also has an interest in ensuring that “statutes enacted by [their] representatives”

50 INNOVATION LAW LAB V. WOLF

are not imperiled by executive fiat. Maryland v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J., in chambers).

932 F.3d at 779 (alteration in original).

VII. Scope of the Injunction

The district court issued a preliminary injunction setting aside the MPP—that is, enjoining the Government “from continuing to implement or expand the ‘Migrant Protection Protocols’ as announced in the January 25, 2018 DHS policy memorandum and as explicated in further agency memoranda.” Innovation Law Lab, 366 F. Supp. 3d at 1130. Accepting for purposes of argument that some injunction should issue, the Government objects to its scope.

We recognize that nationwide injunctions have become increasingly controversial, but we begin by noting that it is something of a misnomer to call the district court’s order in this case a “nationwide injunction.” The MPP operates only at our southern border and directs the actions of government officials only in the four States along that border. Two of those states (California and Arizona) are in the Ninth Circuit. One of those states (New Mexico) is in the Tenth Circuit. One of those states (Texas) is in the Fifth Circuit. In practical effect, the district court’s injunction, while setting aside the MPP in its entirety, does not operate nationwide.

For two mutually reinforcing reasons, we conclude that the district court did not abuse its discretion in setting aside the MPP.

INNOVATION LAW LAB V. WOLF 51

First, plaintiffs have challenged the MPP under the Administrative Procedure Act (“APA”). Section 706(2)(A) of the APA provides that a “reviewing court shall . . . hold unlawful and set aside agency action . . . not in accordance with law.” We held, above, that the MPP is “not in accordance with” 8 U.S.C. § 1225(b). Section 706(2)(A) directs that in a case where, as here, a reviewing court has found the agency action “unlawful,” the court “shall . . . set aside [the] agency action.” That is, in a case where § 706(2)(A) applies, there is a statutory directive—above and beyond the underlying statutory obligation asserted in the litigation—telling a reviewing court that its obligation is to “set aside” any unlawful agency action.

There is a presumption (often unstated) in APA cases that the offending agency action should be set aside in its entirety rather than only in limited geographical areas. “[W]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that rules are vacated—not that their application to the individual petitioners is proscribed.” Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F3d 476, 511 (9th Cir. 2018) (internal quotation marks omitted). “When a court determines that an agency’s action failed to follow Congress’s clear mandate the appropriate remedy is to vacate that action.” Cal. Wilderness Coalition v. U.S. Dep’t of Energy, 631 F.3d 1072, 1095 (9th Cir. 2011); see also United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019) (“The ordinary practice is to vacate unlawful agency action.”); Gen. Chem. Corp. v. United States, 817 F.2d 844, 848 (D.C. Cir. 1987) (“The APA requires us to vacate the agency’s decision if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .”).

52 INNOVATION LAW LAB V. WOLF

Second, cases implicating immigration policy have a particularly strong claim for uniform relief. Federal law contemplates a “comprehensive and unified” immigration policy. Arizona v. United States, 567 U.S. 387, 401 (2012). “In immigration matters, we have consistently recognized the authority of district courts to enjoin unlawful policies on a universal basis.” E. Bay Sanctuary Covenant, 932 F.3d at 779. We wrote in Regents of the University of California, 908 F.3d at 511, “A final principle is also relevant: the need for uniformity in immigration policy. . . . Allowing uneven application of nationwide immigration policy flies in the face of these requirements.” We wrote to the same effect in Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017), rev’d on other grounds, 138 S. Ct. 2392 (2018): “Because this case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights.” The Fifth Circuit, one of only two other federal circuits with states along our southern border, has held that nationwide injunctions are appropriate in immigration cases. In sustaining a nationwide injunction in an immigration case, the Fifth Circuit wrote, “[T]he Constitution requires ‘an uniform Rule of Naturalization’; Congress has instructed that ‘the immigration laws of the United States should be enforced vigorously and uniformly’; and the Supreme Court has described immigration policy as ‘a comprehensive and unified system.’” Texas v. United States, 809 F.3d 134, 187–88 (5th Cir. 2015) (emphasis in original; citations omitted). In Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017), we relied on the Fifth Circuit’s decision in Texas to sustain the nationwide scope of a temporary restraining order in an immigration case. We wrote, “[W]e decline to limit the geographic scope of the TRO. The Fifth Circuit has held that such a fragmented immigration policy would run afoul of the

INNOVATION LAW LAB V. WOLF 53 constitutional and statutory requirement for uniform

immigration law and policy.” Id. at 1166–67. Conclusion

We conclude that the MPP is inconsistent with 8 U.S.C. § 1225(b), and that it is inconsistent in part with 8 U.S.C. § 1231(b). Because the MPP is invalid in its entirety due to its inconsistency with § 1225(b), it should be enjoined in its entirety. Because plaintiffs have successfully challenged the MPP under § 706(2)(A) of the APA, and because the MPP directly affects immigration into this country along our southern border, the issuance of a temporary injunction setting aside the MPP was not an abuse of discretion.

We lift the emergency stay imposed by the motions panel, and we firm the decision of the district court.

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

At last, a breath of justice in halting, at least temporarily, an outrageously illegal program that is also a grotesque violation of our national values and humanity. Unfortunately, it has already resulted in thousands of injustices and damaged many lives beyond repair. That’s something that a clueless shill for authoritarianism, wanton cruelty, and abrogation of the rule of law like dissenting Judge Fernandez might want to think about.

But, hold the “victory dance.” The regime will likely seek “rehearing en banc,” appealing to other enablers of human rights atrocities like Fernandez. And, if the regime fails there, they always can “short circuit” the legal system applicable to everyone else by having Solicitor General Francisco ask his GOP buddies on the Supremes, “The JR Five,” to give the regime a free pass. As Justice Sotomayor pointed out, that type of “tilt” has already become more or less “business as usual” as the regime carries out its nativist, White Nationalist immigration agenda. Indeed, Justices Gorsuch and Thomas have already announced their eagerness to carry the regime’s water for them by doing away with nationwide injunctions, even though they are the sole way for doing justice in immigration cases like this.

But, at least for today, we can all celebrate a battle won by the New Due Process Army in the ongoing war to restore our Constitution, the rule of law, and human dignity.

Due Process Forever!

PWS

02-29-20

Case Name:	Sontos Diaz-Reynoso v. William Barr
Case Number:	18-72833
Document(s):	Document(s)

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