Crime – Page 3 – immigrationcourtside.com

NO DEFERENCE DUE! – 6th CIR. SLAMS TWO BIA PRECEDENTS – MATTER OF KEELEY, 27 I&N DEC. 27 I&N DEC. 146 (BIA 2017) & MATTER OF JASSO ARANGURE, 27 I&N DEC. 178 (BIA 2017) BITE THE DUST! — Time To Put An End To Inappropriate “Chevron Deference” For “Captive” BIA!

Keeley v. Whitaker, 6th Cir., 12-17-18, Published

PANEL: GRIFFIN and DONALD, Circuit Judges; BERTELSMAN, District Judge*

*The Honorable William O. Bertelsman, Senior United States District Judge for the Eastern District of Kentucky, sitting by designation.

OPINION BY: JUDGE BERNICE BOUIE DONALD

KEYQUOTE:

This case requires us to use the tools of statutory interpretation to determine whether a conviction for rape in Ohio is an aggravated felony under the Immigration and Nationality Act (“INA”). The Fifth Circuit and the Board of Immigration Appeals (“BIA”) previously considered this question and answered it in the negative. In the case before us, though, the BIA reversed course in a published decision and found that such a conviction is an aggravated felony under the INA. On review of all the relevant materials, we disagree with the BIA. A conviction for rape in Ohio can be committed by digital penetration, whereas the aggravated felony of rape under the INA cannot. Therefore, the Ohio conviction does not categorically fit within the federal definition, and the petitioner’sconviction is not an aggravated felony. Accordingly, we REVERSE.

. . . .

In its opinion, the BIA ignored the most important guiding factor to statutory interpretation—the language of the statute—which shows that Congress did not consider rape and sexual abuse to be coextensive. When a court discerns the intent of Congress, “[o]ur analysis begins with the language of the statute.” Esquivel-Quintana, 137 S. Ct. at 1569 (emphasis added) (quoting Leocal v. Ashcroft, 543 U.S. 1, 8 (2004)). When defining what crimes constituted aggravated felonies in the INA, Congress included “rape” and “sexual abuse of a minor” separately. § 101(a)(43)(A). The only conclusion we can draw from this drafting is that Congress intended for the terms to describe different aggravated felonies.

The BIA’s approach is impermissible because it would strip meaning from the statute’s words. “Under accepted canons of statutory interpretation, we must interpret statutes as a whole,giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous.” Menuskin v. Williams, 145 F.3d 755, 768 (6th Cir. 1998) (quoting Lake Cumberland Trust, Inc. v. U.S. E.P.A., 954 F.2d 1218, 1222 (6th Cir. 1992)). To accept the BIA’s position that Congress intended for rape and sexual abuse to be synonymous would render meaningless Congress’ decision to utilize the two different terms—rape and sexual abuse—to describe two different aggravated felonies.6 Congress clearly intended to penalize a more expansive set of sex crimes

No. 17-4210 Keeley v. Whitaker Page 7

committed against minors than against adults; and to effectuate that intent, Congress used the term “rape” as to adults and “sexual abuse” as to minors. The BIA ignored the language of the statute.7 Its holding cannot stand.

The primary error the BIA committed was to place the states’ treatment of the crime above the language of the statute. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984) (holding that we must discern the intent of Congress when interpreting a federal statute).8 Even accepting as true that many of the states treated rape and sexual abuse as “interchangeable” in 1996, we cannot impute such an understanding to Congress. The language of the INA prohibits us from doing so.

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Gee, the Fifth Circuit actually told the BIA the correct answer! And, initially, the BIA got it right!

But then, perhaps in an effort to ingratiate themselves with “Gonzo Apocalypto” Sessions, their “new boss,” the BIA screwed it up by trying to expand the reach of the removal provision so that more folks could be removed in violation of law. Sounds like just the kind of scofflaw thing Ol’ Gonzo encouraged and dreamed about. Looks to me like “job security” is overruling “justice” at “Justice!”

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172209.P Jasso-6th Cir18a0272p-06

Jasso Arangure v. Whitaker, 6th Cir., 12-18-18, Published

PANEL: THAPAR, BUSH, and NALBANDIAN, Circuit Judges

OPINION BY: JUDGE THAPAR

KEY QUOTE:

Courts have always had an “emphatic[]” duty “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). But all too often, courts abdicate this duty by rushing to find statutes ambiguous, rather than performing a full interpretive analysis. When dealing with agencies, this abdication by ambiguity is even more tempting—and even more problematic. Because, under Chevron, ambiguity means courts get to outsource their “emphatic” duty by deferring to an agency’s interpretation. But even Chevron itself reminds courts that they must do their job before applying deference: they must first exhaust the “traditional tools” of statutory interpretation and “reject administrative constructions” that are contrary to the clear meaning of the statute. Chevron USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984). First and foremost, this means courts must analyze the statutory text. But when the text standing alone does not supply an answer, courts must consider canons of interpretation. Here, a canon makes the statute’s meaning clear. Thus, we reject the agency’s contrary interpretation.

. . . .

In this case, the Chevron analysis begins and ends with step one. The common-law presumption of res judicata makes the INA unambiguous. Res judicata doctrine applies in removal proceedings.

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“Preaching to the choir” here on “Chevron deference.” As my former students in RLP and ILP at Georgetown might remember, I referred to Chevron as “judicial task avoidance,” which is exactly what it is. It’s a gross violation of Marbury. Effectively, “TJ” dancing on the grave of John Marshall!

Chevron deference is particularly inappropriate in the case of the BIA, which these days functions as an enforcement appendage of the Attorney General (who, without authorization, has actually “re-assumed” many of the civil immigration enforcement functions of DHS). And, both Sessions and Whitaker have shown that if the BIA dares to render any semblance of a reasonable interpretation that might actually help a respondent in Removal Proceedings in any way it will be swiftly and mindlessly reversed.

Neither Sessions nor Whitaker had any chance of being confirmed as an Article III Judge. Indeed, Sessions was emphatically rejected for such a position by his own party because of his record of racially biased views (which he inflicted on the most vulnerable migrants during his toxic tenure as AG).

They have no business serving in a “quasi-judicial” capacity in any immigration proceeding. And, the Article III Courts have no business giving the BIA “deference” reserved for an impartial panel of subject matter experts. By no stretch of the imagination does that describe today’s “captive” BIA (which, incidentally, hasn’t had an “outside Government” appointment this century –even before Sessions, its jurisprudence had become very lopsidedly in favor of the DHS).

PWS

12-22-18

FROM THE ASHES OF CHAOS, GOOD GOVERNMENT REARS ITS HEAD! — Senate Overwhelmingly Passes Bipartisan Criminal Justice Reform Bill Supported By Trump! — But, Time’s Philip Elliott Reminds Us That “It Ain’t Over Till It’s Over!”

POLITICS
The Senate Just Passed a Major Criminal Justice Bill. But the Fight’s Not Over Yet

The US Capitol is seen in Washington, DC on Dec. 17, 2018. Saul Loeb—AFP/Getty Images
PHILIP ELLIOTT @PHILIP_ELLIOTT
December 19th, 2018
In a surprise end-of-the-year move, the Senate late Tuesday passed a sweeping and bipartisan rewrite of the nation’s criminal code with 87 votes in favor of the most ambitious changes in a generation.

Despite the headline-grabbing action, skeptics warned that there are still plenty of ways this can be derailed, especially as Congress is trying to pass a basic measure to keep the government’s doors open before a Friday deadline. The House still needs to accept changes made by the Senate, and President Donald Trump will need to sign it.

But, at least for the moment late Wednesday, a bill that would help low-risk offenders caught up in a sentencing matrix of mandatory minimums seems headed to becoming a law.

Outgoing House Speaker Paul Ryan immediately tweeted that he looked forward to helping send the bill to the President for his signature. According to one GOP aide, the House would begin considering the bill on the floor Thursday, although the schedule is fluid. Earlier this year, the House passed a version of this law by a bipartisan 360-59 vote.

And, at the White House, officials said Trump was on-board with a topic championed by West Wing senior adviser Jared Kushner. “I look forward to signing this into law!” the President tweeted in a sign that, maybe, this would be an easy win for advocates of criminal justice reform.

Critics on both sides of the aisle seemed to temper their criticism of the bill for the moment. As passed, the legislation falls short of the ambitious goals outlined for both parties and still leaves behind thousands of inmates. The bill does not address state or local laws, meaning tens of thousands of inmates would not benefit from the changes made at the federal levels. Even so, Congress’ internal think tank estimated that some 53,000 inmates would be affected over the next 10 years out of a federal population of 181,000.

“We’re not just talking about money,” said Sen. John Cornyn, the Texas Republican who is in his final weeks as the No. 2 member of his party in the Senate. “We’re talking about human potential. We’re investing in the men and women who want to turn their lives around once they’re released from prison, and we’re investing in so doing in stronger and more viable communities, and we’re investing tax dollars into a system that helps produce stronger citizens.”

Officially called The First Steps Act, the measure provides anti-recidivism programing for those currently incarcerated, job training and rehabilitation programs for federal prisoners. It also provides an early-release provision for non-violent offenders and removes a disparity between power cocaine and crack, a distinction that is widely seen as racially motivated.

Still, there are landmines ahead. For instance, if Congress votes to aid convicts but not to fund border security, conservative critics will pounce. And liberal groups, who sought more from this measure, will criticize the effort for not doing more to address sentencing laws they see as racist. With many departing members counting their time in Washington in hours and not weeks, the tenuous agreement is largely seen as in peril at best. On top of all of this, many of the lawmakers casting votes were shown the door in November’s elections, a typical criticism of such lame-duck sessions.

These worries did little to mute the enthusiasm seen on the Senate floor Tuesday night. Sen. Chuck Grassley, R-Iowa, was ending his turn as Judiciary Committee chairman on a high note, sporting a red sweater as the vote proceeded. Sen. Cory Booker, D-N.J., was seen enthusiastically shaking hands with and hugging Republican colleagues. Even Senate Majority Leader Mitch McConnell, who was personally lukewarm at best on the proposal, cracked a smile as he voted for the measure. Earlier, he was coy about whether he would vote in favor of the measure.

Addressing the criminal justice system has become an unlikely bipartisan meeting of interests. Conservatives see the ballooning federal prison population as an unacceptable cost. Liberals see it as the manifestation of social and racial injustice. Groups with divergent ideological views, such as the conservative network of organizations funded by Charles Koch and the liberal Centers for American Progress, found common ground on this topic.

McConnell agreed to a series of changes in recent days but rejected others. On the floor late Tuesday, lawmakers rejected a series of last-minute additions that were seen as ways to derail the whole package. Their chief authors, Sen. Tom Cotton of Arkansas and John Kennedy of Louisiana, watched as the so-called poison-pill amendments were rejected.

If the vote late Tuesday was a sign, it appears the coming two years in Washington under a divided government might not be a complete logjam. McConnell relented to allow a vote and, at least for now, progressive lawmakers did not allow themselves to be derailed in pursuit of the perfect at the cost of the good. Republicans dropped their tough-on-crime rhetoric and Democrats dropped their social-justice arguments. And, at least on Twitter, Trump seemed to break with his all-or-nothing approach to criminals in order to notch a win.

With reporting by Alana Abramson in Washington

Tags

# CONGRESS# CRIMINAL JUSTICE# JUSTICE

Sent from my iPad

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How do we know this legislation is good for America? It was opposed by Jim Crow White Nationalists Jeff “Gonzo Apocalypto” Sessions and Sen. Tom Cotton (R-AK). Just shows that if you can keep guys like that out of the way of progress, some good things actually could get done. Doesn’t mean they will; just shows the potential.

Just think of the potential if Trump fired neo-Nazi immigration adviser Stephen “Hairboy” Miller and got some practical, informed, non-racist advice on immigration policy! Unfortunately for America and the world (and, perhaps for Trump too) Miller is one of the few non-Trump-Family “survivors” in the West Wing.

PWS

12-19-19

MEXICO A “SAFE THIRD COUNTRY?” — No Way! — “‘It’s a Crisis of Civilization in Mexico.’ 250,000 Dead. 37,400 Missing.“

https://www.wsj.com/articles/its-a-crisis-of-civilization-in-mexico-250-000-dead-37-400-missing-1542213374?emailToken=b782c4822fa5027d9168b45cd695195eFqzrxRlC5OCkGVY8Z0EA4pb8VXl6RHkHREQ1AmaH8yMyeAlVb6MpXqPHHsAocieCxuQWuPDERMwhcxLvXsFRFQsRI5WkHZo3DKDR+cMb5uAd8bNn8ryiZ5q4Nt0344LX&reflink=article_email_share

José de Córdoba and Juan Montes report for the WSJ:

That day, the mothers scoured the site outside El Fuerte, a town in Sinaloa state, on Mexico’s northern Pacific Coast, looking for one of two men presumably kidnapped by cartel gunmen in recent weeks. One body had already been found in a field. The women believed the other may be nearby. In the end, they came up empty.

“This is my life,” said Mirna Medina, a forceful woman who holds the group together. “Digging up holes.”

Her son, who sold CDs by a gas station, was kidnapped in 2014. Three years later to the day, she and the other mothers of the search group dug up his remains. “I felt his presence,” she said, remembering the day and breaking out in tears. “I wanted to find him alive, but at least I found him.”

Some 37,000 people in Mexico are categorized as “missing” by the government. The vast majority are believed to be dead, victims of the country’s spiraling violence that has claimed more than 250,000 lives since 2006. The country’s murder rate has more than doubled to 26 per 100,000 residents, five times the U.S. figure.

Because the missing aren’t counted as part of the country’s official murder tally, it is likely Mexico’s rate itself is higher.

The killing and the number of missing grow each year. Last year, 5,500 people disappeared, up from 3,400 in 2015. Mexico’s murders are up another 18% through September this year.

Victims’ families, mostly mothers, organize search parties, climbing down ravines or scouring trash dumps. Their technique is crude. Sometimes they hire laborers to hammer steel rods into the soil and haul them up to see if they smell like decomposition. Other times, they simply look for an exposed body part or shallow grave.

The sheer numbers of the disappeared now rival more famous cases of missing people in Latin American history.

The Disappeared, or Desaparecidos, became a chilling part of Latin America’s vocabulary during the Cold War, when security forces kidnapped, killed and disposed of the bodies of tens of thousands of leftist guerrillas as well as civilian sympathizers. The most infamous case is Argentina’s “Dirty War,” where at least 10,000 people vanished from 1976 to 1983. In Buenos Aires, mothers of the missing organized weekly vigils in front of Argentina’s presidential palace, gaining world-wide prominence.

Mexico fought its own far-smaller war against Marxist guerrillas during the 1970s. According to the government human-rights commission, 532 people went missing, and at least 275 people were summarily executed by security forces.

This time around, the horror in Mexico is bigger and its causes more complex. Many of the disappeared in recent years are believed to be the victims of violence unleashed by criminal gangs fighting to control drug routes and other lucrative businesses such as extortion, kidnapping and the theft of gasoline from pipelines, often with the complicity of police forces, government officials say.

“It’s a crisis of civilization in Mexico,” said Javier Sicilia, a poet and victims’ advocate whose son was murdered in 2011. “It’s diabolical—an unprecedented perversity to disappear human beings and erase any trace of them from the world.”

The trauma of Mexico’s missing is an open wound in the nation’s psyche. Families who can’t grieve for their loved ones spend the day alternating between doubt and despair, praying for, and dreading, the blessing of certainty.

“We don’t sleep nights, we have nightmares wondering what happened, where can he be,” said Maria Lugo, 62, whose son disappeared in 2015.

. . . .

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Those with WSJ access can get the rest of the gruesome story at the link, along with pictures and graphs illustrating the extent of the problem.

Obviously, by no stretch of the imagination is Mexico a “Safe Third Country” for purposes of U.S. asylum law. The brazen attempt by the Trump Administration and GOP Senators led by Chuck Grassley and Mike Lee to force such an agreement down the throat of Mexico is as disingenuous as it is immoral.

It also is appalling the number of Trump Administration senior immigration officials who parrot the bogus claim that “refugees from Central America are required to apply for asylum in Mexico.” Neither international law nor U.S. law imposes such a requirement, for good reasons. Actually, the single “Safe Third Country Agreement” that we have negotiated with Canada in compliance with our immigration laws is quite circumscribed and very limited in scope. And, there are ongoing efforts in Canada to force Canada to withdraw from this agreement because of the Trump Administration’s mistreatment of asylum applicants.

Nevertheless, as I have previously pointed out, given conditions in the Northern Triangle, while Mexico isn’t a “Safe Third Country” for purposes of our law, it might well be a “safer third country,” in practical terms, for many Central American refugees and their families. It’s bigger than the Northern Triangle countries, somewhat better governed than the “failed states” of the Northern Triangle, easier and less dangerous to reach, has more economic opportunities and resettlement options, and is generally (although, sadly, not always) not as overtly hostile to refugees as is the U.S. under Trump.

To encourage (rather than attempt to force) more individuals to apply for asylum in Mexico, our Government should:

Publicly acknowledge and treat the migration from Central America as a “humanitarian situation,” rather than a law enforcement issue;
Work with the UNHCR and Mexican authorities to improve asylum processing, adjudication, and resettlement in Mexico;
Provide financial aid and incentives for Mexico to improve its asylum system (rather than law enforcement money or threats to cut off funding);
Emphasize to Central American refugees the possible benefits of applying for asylum in Mexico (or elsewhere), rather than threatening them and trying to intimidate them from coming to the U.S.
Finally, and most important, the U.S. should be taking a leadership role with the UNHCR and other countries in our hemisphere to address the endemic problems in the Northern Triangle that are creating these refugee flows.

Refugee situations are complex, on a number of levels. They won’t be solved by the simplistic approaches (a/k/a political stunts) currently being taken by the Trump Administration, including the ridiculous “Wall.” Indeed, they can’t be solved by any single country. It takes the countries of the world working together to resolve them. That’s exactly what the mechanisms set up under the U.N. Convention on Refugees were intended to do. It’s beyond foolish for our Government to ignore them.

PWS

11-16-18

RIGHT WING APOLOGISTS DOUBLE DOWN ON LIES AND MYTHS AS TRUMP ADMINISTRATION SINKS DEEPER INTO THE QUICKSAND! — “On cue, conservatives pulled out every single pro-Trump defense they had concocted over the past two years.”

https://www.vanityfair.com/news/2018/08/right-wing-response-michael-cohen-paul-manafort-convictions?mbid=nl_CH_5b7dac2bf9a65f4b9ec05fbd&CNDID=48297443&spMailingID=14112614&spUserID=MjMzNDQ1MzU1ODE2S0&spJobID=1462003727&spReportId=MTQ2MjAwMzcyNwS2

Tina Nguyen writes in Vanity Fair:

Just hours after Michael Cohen, Donald Trump’s former personal lawyer, pled guilty to violating campaign-finance law on behalf of an unnamed political candidate in 2016, and Paul Manafort, his former campaign manager, was convicted of eight counts of financial fraud, Trump was firmly ensconced in the safe space of a political rally in West Virginia, greeted by comforting chants of “Lock her up!” For the next few hours, the president studiously avoided mentioning the two men who may very well have thrown his political future into jeopardy, freewheeling instead about “no collusion” before a crowd that would accept—and even repeat—virtually anything he said. Yet even as the president pontificated, his right-wing allies found themselves in the uncomfortable position of being forced to fill his silence. Blindsided by not one, but twodamning convictions, they did the only thing they could: everything. “There are a lot of lines of defense that are being wheeled out right now,” Right Wing Watch’s Jared Holt observed to me. “It feels very much like throwing things at the wall and seeing what sticks.”

On cue, the right’s public-facing side pulled out every single pro-Trump defense it had concocted over the past two years. Within an hour of the verdicts breaking, The Five’s Greg Gutfeld was aggressively dismissing Cohen and Manafort as “two men who most Americans don’t know their names.” Fox Business’s Maria Bartiromo went after Hillary Clinton, saying Tuesday morning that Robert Mueller’s probe had no legitimacy unless the former Democratic presidential candidate was likewise investigated for the infamous Steele dossier. A shrewder group of Republicans converged on the seeming lack of Russia-related convictions in the Manafort trial, putting their disavowals on hold: “Thus far, there have yet to be any charges or convictions for colluding with the Russian government by any member of the Trump campaign,” Senator Lindsey Graham said in a statement, in one of the more measured defenses coming out of the Republican Party. The line made its way into the official G.O.P. defense, according to notes that a surrogate texted to reporter Josh Dawsey.

A less artful group of Trump supporters deployed a different line of logic: if the Manafort convictions carried no mention of Russia, then the media’s Russia-meddling narrative was, ipso facto, false, and Trump was therefore innocent (never mind the fact that a second Manafort trial, centering around the former G.O.P. operative’s extensive work in Russia and the Ukraine, is set to begin in D.C. in less than a month). “So all this legal activity strange I see no ‘Russian collusion’ in any breaking news,” tweeted Matt Schlapp, chairman of the American Conservative Union and the husband of White House communications director Mercedes Schlapp. “Odd.” Still others, said Holt, went further off the deep end, asserting that the Justice Department was being “run as part of a conspiracy theory,” and the trial wasn’t proof of the “Russian hacking narrative’s” veracity.

Almost simultaneously, a large segment of Trump’s diehard, MAGA-oriented allies began pushing the story of Mollie Tibbetts, a college student who was allegedly murdered by an undocumented immigrant. The lead story on Fox News’s home page was dedicated exclusively to the case, as was Breitbart’s, while MAGA wunderkinds Charlie Kirk,Candace Owens, and Tomi Lahren all tweeted that Tibbetts’s story ought to be top-line news, and lamented the “liberal media’s” preoccupation with Manafort and Cohen.

Fox and Friends simply ignored the convictions altogether in favor of discussing Tibbetts, along with kneeling N.F.L. protesters, and Andrew Cuomo’s recent gaffes. Though the outpouring could be read as spontaneous, it could not have come at a more convenient time—as former speaker Newt Gingrich put it to Axios, “If Mollie Tibbetts is a household name by October, Democrats will be in deep trouble. If we can be blocked by Manafort-Cohen, etc., then G.O.P. could lose [the House] badly.”

Behind the scenes, Republicans reportedly wrung their hands, increasingly concerned that the two cases, and Cohen’s in particular, could herald the president’s doom. “The verdict in the Manafort trial isn’t nearly as worrisome to me as the Cohen agreement and the Cohen statement,” former Trump adviser Michael Caputo told Politico. “It’s probably the worst thing so far in this whole investigation stage of the presidency.” “There was political momentum building to wrap up the Mueller probe soon,” a former administration official fretted to the outlet. “At the very least, in the short term, these two developments will pretty significantly bolster the office of the special counsel and people’s perceptions of it.” The perception, it seems, is widespread:

Nearly a dozen people close to the president, including current and former White House aides, acknowledged that Tuesday was one of the darkest days of Trump’s year and a half in office. And they worried that the revelations—even if they are unrelated to allegations of collusion with Russia—could lend new credence to the Mueller probe, even after the president’s allies spent months undercutting public faith in the investigation.

A close Trump friend confessed to Axios that they are “a bit concern[ed] about what he would do fully backed into a corner.” And a “usually buoyant outside West Wing adviser” read the tea leaves, noting, “Booming economy, robust bull market, troops in harm’s way but not in a large-scale war. And yet the president is enmeshed in a series of scandals and controversies . . . and that is before the Dems in the House start with the investigations.”

But by Wednesday morning, the G.O.P.’s fearless leader had returned from West Virginia and thrown himself back into the fray, making it clear what he wanted his followers to do: hail Manafort as a “brave man” who escaped 10 counts but fell victim to the Russia “witch hunt;” and jeer Cohen, the bad lawyer who pled guilty to things that were “not a crime.” “Whenever Trump tweets out what could be perceived as the official response, that tends to take over,” Holt said. “I wouldn’t be surprised to see if that becomes the primary line of defense.”

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There’s only going to be one “right side of history” on this one. And, Trump and his supporters won’t be on it.

PWS

08-22-18

VAL BAUMAN @ DAILY MAIL — NOW THERE IS PROOF! — Sessions’s “Zero Tolerance” Prosecutions Of Asylum Seekers Displace Real Criminal Prosecutions & Investigations, Actually Making America Less Safe! — When Will The Waste, Fraud, & Abuse Of Our Justice System By The Sessions DOJ End? — “‘Unless crimes are suddenly less prevalent in the districts along the southwest border, the odds of being prosecuted for many federal offenses have declined,’ the report found.”

http://www.dailymail.co.uk/news/article-6036081/Prosecution-non-immigration-crimes-57-Southern-U-S-border-immigration-cases-balloon.html

Val writes:

The rate of non-immigration prosecutions at the southern U.S. border was down 57 percent in June compared to March as federal officials changed focus under the Trump administration’s zero-tolerance immigration policy, according to a new report.

In March 2018, non-immigration prosecutions accounted for one in seven (14 percent) of all total prosecutions at the southern border’s five federal districts.

That rate fell steadily over the next several months, and by June the ratio had fallen to one in seventeen (or six percent) of all prosecutions, according to an analysis of government data by the Transactional Records Access Clearinghouse at Syracuse University.

+2

In March 2018, non-immigration prosecutions accounted for one in seven (14 percent) of all total prosecutions at the southern border’s five federal districts. By June the ratio had fallen to one in seventeen (or six percent) of all prosecutions

‘Unless crimes are suddenly less prevalent in the districts along the southwest border, the odds of being prosecuted for many federal offenses have declined,’ the report found.

The timing of the change coincides with the Trump administration’s April 6 announcement that the government was taking a zero-tolerance approach to immigration at the southern U.S. border.

Statisticians at TRAC concluded that the push to prioritize prosecuting illegal border crossers had taken focus away from other crimes that federal prosecutors are charged with enforcing – including narcotics trafficking, weapons offenses and pollution crimes, among other things.

‘There are these capacity issues; everything can’t be your top priority,’ said Susan Long, a statistician for TRAC. ‘I think it’s difficult to believe that the stepped-up immigration prosecutions were just happenstance and didn’t have anything to do with policy.’

Former immigration judge Paul Wickham Schmidt agreed, saying most illegal immigration cases are misdemeanors that result in time served – typically 2-3 days.

‘Courts have limited capacity, prosecutors have limited capacity and when you prioritize one thing that means deprioritizing something else,’ he said. ‘In this case, what they’ve deprioritized is absolutely insane. There are real crimes out there.’

The TRAC report also bolsters assertions by San Diego-based Justice Department prosecutor Fred Sheppard that the zero-tolerance policy would be ‘diverting staff, both support and attorneys, accordingly’ from non-immigration cases, according to a June report by USA Today.

Sheppard warned border authorities that prioritizing immigration cases would ‘occupy substantially more of our resources,’ according to an email obtained by the paper.

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Clearly, Sessions’s obscene, irrational, xenophobic fixation on brown skinned asylum seekers (who, in most cases should just be taken to the nearest port of entry and processed civilly through the credible fear/removal system) is destroying the U.S. Justice system. His insane program ignores the fundamental truth of law enforcement in any system: putting minor first offenders of regulatory laws in court displaces the cases of major offenders.

That’s why no well functioning justice system does it! What would you think if your local courts and prosecutors were so busy processing jaywalking cases that they couldn’t investigate and prosecute burglaries and bank robberies? But, that’s essentially what Sessions is doing here.

Moreover, the Federal Prosecutors, Federal Judges, and Federal, Magistrates who have failed to use their independent authority to put an end to these abuses are also complicit.

While much has been written about the supposed “resilience” of our democratic institutions and their ability to stand up to Executive abuses and tyranny, in this case it’s not happening. The system is essentially letting Sessions “get away with murder.” As Americans we should all be both outraged and appalled by this failure!

Stop the abuses! Stand up for Due Process, humanity, and rationality!

PWS

08-08-18

ANNA FLAGG WITH A TIMELY REMINDER: The Connection Between Immigrants & Crime Is A Myth That Only Exists In the Minds Of Some Americans Who Believe The Lies Peddled By Trump, Sessions, Miller & Their White Nationalist Gang!

https://www.nytimes.com/interactive/2018/03/30/upshot/crime-immigration-myth.html?em_pos=medium&emc=edit_up_20180625&nl=upshot&nl_art=5&nlid=79213886emc%3Dedit_up_20180625&ref=headline&te=1

From the NY Times:

The Myth of the Criminal Immigrant

By ANNA FLAGG MARCH 30, 2018

Immigrant population

Change since 1980

19801990200020102016-50%+50%+100%+118%

Violent crime rate

Change since 1980

19801990200020102016-36%

The Trump administration’s first year of immigration policy has relied on claims that immigrants bring crime into America. President Trump’s latest target is sanctuary cities.

“Every day, sanctuary cities release illegal immigrants, drug dealers, traffickers, gang members back into our communities,” he said last week. “They’re safe havens for just some terrible people.”

As of 2017, according to Gallup polls, almost half of Americans agreed that immigrants make crime worse. But is it true that immigration drives crime? Many studies have shown that it does not.

Immigrant populations in the United States have been growing fast for decades now. Crime in the same period, however, has moved in the opposite direction, with the national rate of violent crime today well below what it was in 1980.

In a large-scale collaboration by four universities, led by Robert Adelman, a sociologist at the State University of New York at Buffalo, researchers compared immigration rates with crime rates for 200 metropolitan areas over the last several decades. The selected areas included huge urban hubs like New York and smaller manufacturing centers less than a hundredth that size, like Muncie, Ind., and were dispersed geographically across the country.

+5,000+10,000+15,000+20,000 immigrantsper 100,000 peopleCHANGE SINCE 1980per 100,000 people+500 violent crimes–500–1000–1500MiamiNew York↑ More crime↓ Less crime← FewerMore immigrants →

According to data from the study, a large majority of the areas have many more immigrants today than they did in 1980 and fewer violent crimes. The Marshall Project extended the study’s data up to 2016, showing that crime fell more often than it rose even as immigrant populations grew almost across the board.

In 136 metro areas, almost 70 percent of those studied, the immigrant population increased between 1980 and 2016 while crime stayed stable or fell. The number of areas where crime and immigration both increased was much lower — 54 areas, slightly more than a quarter of the total. The 10 places with the largest increases in immigrants all had lower levels of crime in 2016 than in 1980.

And yet the argument that immigrants bring crime into America has driven many of the policies enacted or proposed by the administration so far: restrictions to entry, travel and visas; heightened border enforcement; plans for a wall along the border with Mexico. This month, the Justice Department filed a lawsuit against California in response to the state’s restrictions on local police to assist Immigration and Customs Enforcement officers in detaining and deporting undocumented immigrants charged with crimes. On Tuesday, California’s Orange County signed on in support of that suit. But while the immigrant population in the county has more than doubled since 1980, overall violent crime has decreased by more than 50 percent.

There’s a similar pattern in two other places where Mr. Trump has recently feuded with local leaders: Oakland, Calif., and Lawrence, Mass. He described both cities as breeding grounds for drugs and crime brought by immigrants. But Oakland, like Orange County, has had increasing immigration and falling crime. In Lawrence, though murder and robbery rates grew, overall violent crime rates still fell by 10 percent.

In general, the study’s data suggests either that immigration has the effect of reducing average crime, or that there is simply no relationship between the two, and that the 54 areas in the study where both grew were instances of coincidence, not cause and effect. This was a consistent pattern in each decade from 1980 to 2016, with immigrant populations and crime failing to grow together.
Immigrant population
+109% since 1980
in typical metro area

19802016

Violent crime rate
-23% since 1980

19802016
In a majority of areas, the number of immigrants increased at least 57 percent and as much as 183 percent, with the greatest increases occurring in the 1990s and early 2000s. Violent crime rates in most areas ranged between a 43 percent decline and a 6 percent rise, often trending downward by the 2000s. Places with a sharp rise in the immigrant population experienced increases in crime rates no more frequently than those with modest or no growth in immigration. On average, the immigrant population grew by 137 percent between 1980 and 2016, with average crime falling 12 percent over the same period.

Because the F.B.I. changed how rape was defined in its crime figures, that category could not be included in this analysis. Focusing on the other components of the violent crime rate — assaults, robberies and murders — still fails to reveal a relationship with immigration rates.
Immigrant population

+109%

19802016

Assaults

-13%

19802016

Robberies

-42%

19802016

Murders

-40%

19802016
Most areas experienced decreases in all types of violent crime. The change in assault rates ranged from a 34 percent decline to a 29 percent rise, while robbery rates declined in the range of 12 percent to 57 percent, and murder rates declined in the range of 15 percent to 54 percent.

This analysis is one of the most comprehensive longitudinal studies of the local immigrant-crime relationship. It spans decades of metropolitan area data, incorporating places with widely differing social, cultural and economic backgrounds, and a broad range of types of violent crime.

Areas were chosen to reflect a range of immigrant composition, from Wheeling, W.Va., where one in 100 people was born outside the United States, to Miami, where every second person was. Some areas were home to newly formed immigrant communities; other immigrant pockets went back generations. Controlling for population characteristics, unemployment rates and other socioeconomic conditions, the researchers still found that, on average, as immigration increases in American metropolises, crime decreases.

The foreign-born data, which is collected through the census, most likely undercounts the numbers of undocumented immigrants, many of whom might wish to avoid the risk of identifying themselves. They are, however, at least partly represented in the overall foreign-born population counts.

This is not the only study showing that immigration does not increase crime. A broad survey released in January examined years of research on the immigrant-crime connection, concluding that an overwhelming majority of studies found either no relationship between the two or a beneficial one, in which immigrant communities bring economic and cultural revitalization to the neighborhoods they join.

This article was published in partnership with The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for its newsletter, or follow The Marshall Project on Facebook or Twitter. Anna Flagg is an interactive reporter for The Marshall Project.

In the recent study, Mr. Adelman and his team collected crime and foreign-born population data for 200 metropolitan statistical areas for the years 1970, 1980, 1990, 2000 and 2010. The Marshall Project extended the data set to include 2016, obtaining foreign-born numbers from the American Community Survey one-year estimates and crime figures from the F.B.I. Uniform Crime Reporting Program metropolitan area data sets. When either foreign-born or crime information was unavailable for 2016, the corresponding 2015 data was substituted.

Some metropolitan areas changed over time, growing to include additional regions, or splitting into separate ones. The Marshall Project consulted with the study researchers to determine when a larger area was still an appropriate match to the original described in the study. When an area split into components, raw data from each was added to calculate rates approximating the original region. When no reasonable approximation to the original area could be found, it was marked as missing for 2016.

When an area was missing information for a certain year, that year’s data was interpolated using figures from the closest year available. For example, crime numbers were unavailable for Chicago for 2000 and 2010. Data for those years was linearly interpolated using the 1990 and 2016 figures. Charlotte, N.C., was not included in either the 2016 or 2015 U.C.R. metropolitan area data sets, so data from 2010, the most recent year with available data for this area, was used as an estimate.

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

Hit the above link to get all of the charts and graphics.

It’s a pretty disgusting situation when our Government lies and misrepresents in an attempt to “gin up racial bias” against vulnerable groups that have contributed, and continue to contribute, so many good things to our society. Indeed, but for immigrants, of all kinds, we would have no country and no society at all.

PWS

06-25-18

TRUMP’S COWARDLY ATTACK ON CHILDREN – More Lies, Distortions, Smears, & Racism Mark Administration Officials’ Bogus Attempts To Link Refugee Children & Their Legal Rights With Gangs!

https://www.washingtonpost.com/politics/trump-warns-against-admitting-unaccompanied-migrant-children-theyre-not-innocent/2018/05/23/e4b24a68-5ec2-11e8-8c93-8cf33c21da8d_story.html

Seung Min Kim reports for the Washington Post:

. . . .

The issue is compounded, Rosenstein said, by the fact that these migrant children must eventually be released from detention, and many never show up for their immigration proceedings before a judge. Rosenstein, quoting statistics from the Department of Homeland Security, said less than 4 percent of unaccompanied minors are ultimately removed from the United States.

“We’re letting people in who are creating problems. We’re letting people in who are gang members. We’re also letting people in who are vulnerable,” Rosenstein said. Because many of the migrant children lack families or a similar support system, they become “vulnerable to [gang] recruitment,” the deputy attorney general said,

Thomas Homan, the departing deputy director of Immigration and Customs Enforcement, said about 300 arrests related to the MS-13 gang were made on Long Island last year. Of those arrested, more than 40 percent entered the United States as unaccompanied minors, he said.

=

“So it is a problem,” Homan said. “There is a connection.”

Other federal statistics paint a somewhat different tale. From October 2011 until June of last year, U.S. Customs and Border Protection officials arrested about 5,000 individuals with confirmed or suspected gang ties, according to congressional testimony from the agency’s acting chief, Carla Provost, in June.

Of the 5,000 figure, 159 were unaccompanied minors, Provost testified, and 56 were suspected or confirmed to have ties with MS-13. In that overall time frame, CBP apprehended about 250,000 unaccompanied minors, according to Provost.

. . . .

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

Read the full article at the link.

The Trump claims are, as usual, totally bogus. The percentage of gang members who come in as “unaccompanied minors” is infinitesimally small. The vast majority of these kids are gang victims entitled to asylum or relief under the Convention Against Torture if the law were fairly applied (which it isn’t).

Contrary to the suggestion by Rosenstein, when given access to legal representation, approximately 95% of the unaccompanied children show up for their hearings. And the “vulnerability” mentioned by Rosenstein is largely the result of the Trump Administration’s “reign of terror” against migrant communities which has made nearly all migrant children, along with other community members, “easy pickings” for gangs, with no realistic recourse to law enforcement. There are actually strategies for combatting gangs. But the Trumpsters have no interest in them.

Indeed, gangs have recognized that folks like Trump, Sessions, Homan, Neilsen, and now Rosenstein are their best recruiters and enablers. How dumb can we be as a country to put these biased, spineless, and clueless dudes in charge of “law enforcement.”

Interesting that in an obvious attempt to kiss up to Trump, Sessions, & Co and save his job, Rosenstein pathetically has decided that being a sycophant and sucking up to the bosses is his best defense. Particularly when it’s at the expense of kids and other vulnerable migrants seeking protection. Pretty disgusting! And, I doubt that it will eventually save him from Trump. Just tank his reputation and his future like others who have been “slimed for life” by their association with Trump.

Join the New Due Process Army and stand up for kids against the “child abuse” being practiced by the Trump Administration and its corrupt and incompetent officials.

PWS

05-24-18

Judge Patricia A. Cole Dissents From BIA Panel Majority’s Rewriting Of The Agfel Definition Of “Prostitution” To “Zap” Respondent – Majority “Dings Ding” in Matter of Ding, 27 I&N Dec. 295 (BIA 2018)

Matter of Ding

BIA HEADNOTE:

(1) The term “prostitution” in section 101(a)(43)(K)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(i) (2012), which provides that an offense relating to the owning, controlling, managing, or supervising of a prostitution business is an aggravated felony, is not limited to offenses involving sexual intercourse but is defined as engaging in, or agreeing or offering to engage in, sexual conduct for anything of value.

(2) The offense of keeping a place of prostitution in violation of section 944.34(1) of the Wisconsin Statutes is categorically an aggravated felony under section 101(a)(43)(K)(i) of the Act.

PANEL: BIA APPELLATE IMMIGRATION JUDGES COLE, PAULEY, WENDTLAND

OPINION BY: Judge Roger A. Pauly

DISSENTING OPINION: Judge Patricia A. Cole

KEY QUOTE FROM MAJORITY:

We disagree with the Immigration Judge and with the case law on which he relied because the term “prostitution” in section 101(a)(43)(K)(i) does not necessarily have the same meaning as it does in the inadmissibility provision at section 212(a)(2)(D). “It is not unusual for the same word to be used with different meanings in the same act, and there is no rule of statutory construction which precludes the courts from giving to the word the meaning which the Legislature intended it should have in each instance.” Atlantic Cleaners & Dyers v. United States, 286 U.S. 427, 433 (1932); see also Evntl. Def. v. Duke Energy Corp., 549 U.S. 561, 574 (2007).

KEY QUOTE FROM DISSENT:

I respectfully dissent. I agree with the Immigration Judge’s decision that the respondent’s conviction is not for an aggravated felony under the existing Federal definition of “prostitution.” The majority has crafted a definition of prostitution for purposes of section 101(a)(43)(K)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(K)(i) (2012), as engaging in, or agreeing or offering to engage in, sexual conduct for anything of value. The majority decision concludes that this newly crafted definition categorically covers the conduct proscribed by the Wisconsin statute at issue in this case, but it notes that the precise contours of the term “sexual conduct” will be decided in future cases. This overly broad definition is supported by limited analysis, and it is contrary to immigration law, the law of the United States Court of Appeals for the Seventh Circuit, and the canons of statutory construction.

The majority does not provide any analytical authority for its definition other than noting that the definition is “similar” to that of Black’s Law Dictionary and providing, without any analysis, a survey of the definitions of “prostitution” from the 50 States and the District of Columbia in 1994. Additionally, the majority does not even discuss the ramifications of its new definition of prostitution for section 101(a)(43)(K)(ii) of the Act, which references the provisions of 18 U.S.C. §§ 2421, 2422, and 2423 (2012), which relate to engaging in “prostitution, or in any sexual activity.”

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

Judge Cole’s dissent makes sense to me. Nice to see that occasionally BIA Appellate Immigration Judges stand up for legal constructions that don’t invariably favor deportation of respondents who have been convicted of crimes.

While constructions of immigration statutes often divide Article III judges, all the way up to the Supremes, the BIA’s “Post Ashcroft Purge” jurisprudence has been intentionally bland and one-sided — largely without dissent or transparent deliberation. Moreover, as I have observed before, the BIA’s practice under the Ashcroft “Reforms” and the Obama Administration’s “Go Along to Get Along” approach has been largely to issue published precedents by three-judge panels, rather than en banc.

This allows 80% of the BIA’s permanent judges to avoid expressing a view for against any particular precedent. Indeed, some BIA judges appear hardly at all on “precedent panels,” while others appear frequently. Thus, some BIA judges regularly avoid both possible controversy as well as accountability for their legal positions and votes on critical, life-defining issues. Rather a strange way for a so-called “expert deliberative tribunal” to operate, if I do say so myself.

PWS

05-23-18

OAKLAND, CA MAYOR LIBBY SCHAFF BASICALLY TELLS TRUMP & SESSIONS TO “SHOVE IT!”

https://www.washingtonpost.com/opinions/no-mr-president-i-am-not-obstructing-justice/2018/05/18/0d64e5cc-5ab5-11e8-b656-a5f8c2a9295d_story.html

Schaff writes in the Washington Post:

When President Trump was admonishing Attorney General Jeff Sessions to charge me with obstruction of justice Wednesday, I was at Harvard University sharing how we intend to give every child from Oakland, Calif., the opportunity to attend college.

Like all cities, Oakland suffers from disparities. Our African American and Latino children finish college at vastly lower rates than whites. That achievement gap is a tragic legacy of our country’s racist history.

I sought elected office to fix that — to build an equitable city where every resident, from every neighborhood and background, has the same opportunity to thrive. I believe in the American promise of “justice for all.”

Mr. President, I am not obstructing justice. I am seeking it.

The president takes issue with a tweet I posted in February in which I notified residents of an impending raid by Immigration and Customs Enforcement in the Bay Area, including Oakland. I wanted to make sure that people were prepared, not panicked, and that they understood their legal rights.

I did this for people such as Maria Mendoza-Sanchez, who immigrated to the United States from Mexico 24 years ago . She learned English, earned a degree and worked as a nurse in the cancer ward of Oakland’s public hospital. She and her husband, Eusebio, raised four children and bought a home.

“It’s supposed to be that if you assimilate to the culture of the country, you pay taxes, you work, you graduate college, you have a better chance,” Mendoza-Sanchez told the San Francisco Chronicle.

Last August, Mendoza-Sanchez and her husband were deported. They were ripped from their U.S.-born children — exiled to a country they had not set foot in for two decades. And they were taken from Oakland, where they had contributed to our community’s collective health, well-being and safety.

Under the Obama administration, Mendoza-Sanchez’s status — with a clean record, a good job and college-bound children — made her and her husband eligible for deferrals as they sought citizenship. But under the Trump administration, undocumented residents are vilified as “dangerous criminals” or, as of last week — simply “animals.” Trump has more than doubled deportations of people without any criminal convictions.

There are people like Mendoza-Sanchez in communities across our country: hard-working, tax-paying, law-abiding. They are parents, neighbors and caretakers. Their stories may have begun in another country, but — to our blessing and advantage — continue in ours.

They deserve justice too.

Far from the days when Trump’s Scottish mother gained her naturalization so easily, today’s immigration system is broken. It separates families, endangers our economy that relies on a substantial undocumented workforce and doesn’t provide legal representation to those seeking political asylum.

As mayor, it’s my duty to protect my residents — especially when our most vulnerable are unjustly attacked. As a leader, it’s my duty to call out this administration’s anti-immigrant fearmongering for what it is: a racist lie.

It’s well documented that immigrants — even undocumented immigrants — commit fewer crimes than American-born citizens. And diverse, sanctuary cities such as Oakland are seeing dramatic decreases in crime.

Back at Harvard, I was proud to show how our community has increased the number of college-enrolled, African American students by 14 percent and Latino students by 11 percent in just one year. We’re determined to close the achievement gap one student, one family and one community at a time.

We call our plan the Oakland Promise. It exemplifies America’s promise. Because Oakland doesn’t obstruct justice, we seek it.

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

Fools and Constitutional scofflaws that they are, Trump, Sessions, and ICE are on a path to invite the Article III Federal Courts to review prosecutorial decisions. Normally, Federal Courts give the Executive wide latitude in deciding which cases to investigate and prosecute. About the only known limit is where the prosecution clearly is based in invidious racial, religious, of political grounds.

By setting forth the public framework for politically motivated prosecutions of public officials who resist the Trump/Sessions program of coercing state and local officials and terrorizing local communities, the Trumpsters are almost guaranteeing that their prosecutorial decisions relating to public officials will be subject to at least some degree of judicial scrutiny. Their constant abuses of Executive authority are likely to weaken the power of future Executives. Given their extraordinarily poor example, that’s probably a good thing for the country!

PWS

05-19-18

JUSTICE ON ICE – SESSIONS DOJ’S “AMNESTY FOR WHITE COLLAR CRIMINALS” — BEATING UP UNDOCUMENTED MIGRANTS IN CRIMINAL COURT WHILE DOING A LOUSY JOB ON REAL CRIME – “NUMBERS GAME” CONCEALS WASTE, FRAUD AND ABUSE OF TAXPAYER DOLLARS @ DOJ — “If you’re working on a misdemeanor illegal entry case, as a matter of fact, you are not working on something more serious,” Purdon, who left office in 2015, told HuffPost. “It is a net drain on the scarce resources of U.S. attorneys. Full stop.”

https://www.huffingtonpost.com/entry/jeff-sessions-wants-to-make-the-justice-department-more-like-ice_us_5ae0f3d3e4b02baed1b60aff

Roque Planas reports for HuffPost:

When Tim Purdon became U.S. attorney for North Da kota in 2010, he had a priority: improving public safety on the state’s four Indian reservations. Prosecuting violent crimes on Indian reservations falls to the Justice Department, and Purdon himself had worked similar cases as a public defender before taking on the U.S. attorney job.

But when Purdon took office, he found that more than a third of his criminal caseload consisted of immigration prosecutions, even though North Dakota lies more than 1,000 miles from the border with Mexico. Despite the state’s proximity to Canada, the defendants were by and large Latin Americans who’d been caught in the U.S. after getting deported. The cases were easy to win. All prosecutors needed was to present paperwork proving the prior deportation. But the cases sapped time away from Purdon’s prosecutors, whom he’d have rather tasked with crimes on the reservations or white-collar cases.

That all happened under the Obama administration. But President Donald Trump has doubled down on immigration prosecutions, seeing it as a way to draft the Justice Department into his immigration crackdown. Earlier this month, Attorney General Jeff Sessions announced what he called a “zero tolerance” policy on immigration crime, directing all U.S. attorneys in the four Southwestern border states to prosecute every misdemeanor illegal border-crossing case “to the extent practicable.”

Purdon was livid.

“If you’re working on a misdemeanor illegal entry case, as a matter of fact, you are not working on something more serious,” Purdon, who left office in 2015, told HuffPost. “It is a net drain on the scarce resources of U.S. attorneys. Full stop.”

Despite Trump’s insistence that the border is in “crisis,” illegal entries from Mexico have hit their lowest level since 1971. But illegal entry prosecutions are still taking up half of the federal criminal courts’ workload. If Sessions gets his way, that percentage will continue to increase: Every U.S. attorney in the country will be doing more of the same work that Purdon complained about, and the five U.S. attorneys whose districts touch the southwest border will take on increasingly petty cases to keep the numbers up.

“We want to achieve this zero tolerance across the border and we are redirecting resources,” Sessions told a House Appropriations subcommittee on Thursday.

. . . .

“Isn’t the reality of the situation that the Justice Department is ICE?” Erendira Castillo, an attorney who has represented defendants facing immigration prosecutions for two decades in Tucson, told HuffPost. “Let’s call a spade a spade.”

. . . .

Doubling down on such small potatoes cases might make sense if the Justice Department did an effective job confronting more serious crimes. But its track record on more complex investigations doesn’t always inspire confidence.

Some 9 million Americans lost their homes in the aftermath of the 2007 housing and financial crisis. Despite widespread allegations that fraudulent and predatory behavior on the part of banks and peddlers of predatory mortgages drove that crisis, the Justice Department secured a conviction in only one major case against an investment banker.

That institutional failure wasn’t a fluke — it’s also a reflection of the Justice Department’s priorities. As the number of immigration prosecutions grew by a factor of 11 over the last two decades, the number of prosecutions for white-collar crime in federal court plummeted by 41 percent, according to data compiled by the Transactional Records Access Clearinghouse at Syracuse University. The steady decline continued in 2017, Sessions’ first year as attorney general.

“DOJ’s real amnesty policy,” said Matt Stoller, a fellow with anti-monopolization nonprofit Open Markets Institute, “was for white-collar executives.”

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

Read the complete article at the link.

Yes, DOJ under Sessions very clearly has become ICE, or more accurately DHS. That makes it a totally inappropriate place for the supposedly impartial U.S. Immigration Courts.

As the article points out, this trend stretches back over a number of Administrations of both parties. Certainly, the Obama DOJ misused EOIR as part of its futile “Border Surge Enforcement Strategy” setting off a flurry of “Aimless Docket Reshuffling” (“ADR”) that if not the immediate cause of the unmanageable backlogs certainly was a primary contributor and aggravator of the problem. DOJ simply doesn’t belong in the Immigration Court business — in all honesty, it probably never has.

Assuming America survives the disastrous Trump Kakistocracy — by no means a gimme — I trust that some investigative reporter will write the definitive “inside story” of “Sessions’s Justice.” I think this is just the “tip of the iceberg” of the abuses of our Constitution, laws, and taxpayer dollars — fraud, in plain terms — being orchestrated by our unqualified Attorney General in the name of advancing his immoral, and in many cases illegal, White Nationalist Agenda.

No, Sessions doesn’t appear to be “corrupt” in the classic grifter “Scott Pruitt/Donald Trump” sense — no limos, accepting favors from lobbyists, or soundproof offices that I know about. But, government corruption takes many forms, and subverting the law and public resources to implement an extra-legal, unconstitutional White Nationalist Agenda that subverts both Due Process and Equal Protection, all at taxpayer expense (after all, Hispanics, Blacks, migrants, gays, etc. are taxpayers too) is one of the most insidious forms of corruption.

I just hope to live long enough to read it!

PWS

04-27-18

HERE’S THE FUTURE AS SESSIONS DUMBS DOWN, SPEEDS UP, SKEWS THE LAW, AND DE-PROFESSIONALIZES IMMIGRATION COURTS – 4th Circuit Slams BIA’s Sloppy Analytical Work, Refuses Deference, Reverses, & Remands — Ramirez v. Sessions

RAMIREZVSESSIONS,4THSLOPPY

Ramirez v. Sessions, 4th Cir., 04-17-18, Published

PANEL: GREGORY, Chief Judge, MOTZ and TRAXLER, Circuit Judges

OPINION BY: CHIEF JUDGE GREGORY

SUMMARY (From Chief Judge Gregory’s opinion):

Jose Ramirez seeks review of the decision of the Board of Immigration Appeals (BIA) finding him ineligible for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA). Specifically, the question is whether Ramirez’s convictions for obstruction of justice pursuant to Va. Code Ann. § 18.2- 460(A) qualify as crimes involving moral turpitude (CIMTs). We hold that obstruction of justice under § 18.2-460(A) is not a CIMT because it may be committed without fraud, deception, or any other aggravating element that shocks the public conscience. We therefore grant Ramirez’s petition for review, vacate the BIA’s order of removal, and remand with directions for the Government to facilitate Ramirez’s return to the United States to participate in further proceedings.

KEY QUOTE:

In relation to those cases, the BIA’s one-member decision in this case attempts to significantly expand the definition of a CIMT by removing deceit, a critical indicator of moral turpitude, from the equation. Since this non-precedential decision departs from, rather than relies on, precedential BIA decisions, it is not eligible for Chevron review.

In the absence of Chevron deference, the weight given to a BIA decision “hinges on ‘the thoroughness evident in [the BIA’s] consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.’” Zavaleta-Policiano v. Sessions, 873 F.3d 241, 246 n.2 (4th Cir. 2017) (quoting Martinez, 740 F.3d at 909–10); see Mead, 533 U.S. at 221. Here, the BIA provides only three sentences of analysis that are conclusory in nature and disregards the agency’s prior emphasis on fraud or deceit as a critical determinant without identifying an alternative aggravator. Consequently, the BIA decision is also undeserving of so-calledSkidmore respect because it lacks the power to persuade. See Mead, 533 U.S. at 221.

In sum, under Chevron, BIA decisions defining morally turpitudinous conduct are controlling if they are precedential and reasonable. However, the BIA’s interpretations of laws that it does not administer, such as the Virginia obstruction of justice statute, and its non-precedential decisions are only given weight to the extent that this Court finds the reasoning persuasive. Here, because we do not find persuasive the BIA’s abbreviated and non-precedential opinion, we do not accord it any deference.

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

As we saw during the Bush Administration, “haste makes waste” procedures imposed by the DOJ at the Immigration Courts and the BIA are likely to cause a rebellion in the Article III Courts as they are presented with sloppy work including inadequate factual analyses, incorrect fact-findings, and abbreviated, deficient legal analyses. Factors such as pressure to render more “contemporaneous oral decisions” at the end of the hearing without reviewing the full record and testimony as well as single-judge BIA decisions or “summary affirmances” without opinion aggravate the problem.

As the quantity increases and quality decreases, the Article III Courts will lose confidence in the ImmigratIon Courts and begin returning large numbers of cases for “quality control redos” — something that adds to delay and increases backlogs as well as demoralizing Immigration Judges and frustrating respondents and counsel on both sides.

At some point, I foresee that attorneys for respondents should succeed in convincing the Article III Courts that the BIA no longer qualifies as an “expert tribunal” and that its decisions therefore should not receive so-called “Chevron deference.” Session’s use of his certification power to interfere in judicial decisions is also highly problematic.

Jeff Sessions is neither a judge nor by any stretch of the imagination an unbiased quasi-judicial decision maker. Indeed any Article III or Administrative Judge who made some of the untrue and pejorative statements about migrants, asylum seekers, private attorneys, and the law that Sessions has publicly made since becoming the Attorney General would certainly be required to disqualify himself or herself from a quasi-judicial role in any immigration adjudication.

There is no possibility of a fair, unbiased, due process oriented Immigration Court system under Jeff Sessions and the DOJ.

We have “seen this show before” under Ashcroft and the Bush Administration. Congress seriously disregards its responsibilities by standing by and watching disaster unfold again with hundreds of thousands of lives, and perhaps the stability of our entire Federal Judicial System, at stake.

PWS

04-19-18

SUPREME BOMBSHELL: JUSTICE GORSUCH PROVIDES CRITICAL FIFTH VOTE FOR OVERTURNING DEPORTATION STATUTE FOR UNCONSTITUTIONAL VAGUENESS! — Administration Suffers Yet Another Legal Setback, This Time At the High Court! – Sessions v. Dimaya — Get The Full Opinion, Court Syllabus, Key Quotes, & My “Instant Analysis” HERE!

Dimaya–15-1498_1b8e

Sessions v. Dimaya, No. 15–1498, 04-17-18 (5-4 Decision)

Syllabus By Court Staff:

The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the Unit- ed States will be deported. See 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C). An aggravated felony includes “a crime of violence (as defined in [18 U.S.C. §16] . . . ) for which the term of imprisonment [is] at least one year.” §1101(a)(43)(f). Section 16’s definition of a crime of violence is divided into two clauses—often referred to as the elements clause, §16(a), and the residual clause, §16(b). The residual clause, the provision at issue here, defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” To decide whether a person’s conviction falls within the scope of that clause, courts apply the categorical approach. This approach has courts ask not whether “the particular facts” underlying a conviction created a substantial risk, Leocal v. Ashcroft, 543 U. S. 1, 7, nor whether the statutory elements of a crime require the creation of such a risk in each and every case, but whether “the ordinary case” of an offense poses the requisite risk, James v. United States, 550 U. S. 192, 208.

Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California first-degree bur- glary is a “crime of violence” under §16(b). While Dimaya’s appeal was pending in the Ninth Circuit, this Court held that a similar re-

2

SESSIONS v. DIMAYA Syllabus

sidual clause in the Armed Career Criminal Act (ACCA)—defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B)—was unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause. Johnson v. United States, 576 U. S. ___, ___. Relying on Johnson, the Ninth Circuit held that §16(b), as incorporated into the INA, was also unconstitu- tionally vague.

Held: The judgment is affirmed.

803 F. 3d 1110, affirmed.
JUSTICE KAGAN delivered the opinion of the Court with respect to

Parts I, III, IV–B, and V, concluding that §16’s residual clause is un- constitutionally vague. Pp. 6–11, 16–25.

(a) A straightforward application of Johnson effectively resolves this case. Section 16(b) has the same two features as ACCA’s residu- al clause—an ordinary-case requirement and an ill-defined risk threshold—combined in the same constitutionally problematic way. To begin, ACCA’s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tie[d] the judi- cial assessment of risk” to a speculative hypothesis about the crime’s “ordinary case,” but provided no guidance on how to figure out what that ordinary case was. 576 U. S., at ___. Compounding that uncer- tainty, ACCA’s residual clause layered an imprecise “serious poten- tial risk” standard on top of the requisite “ordinary case” inquiry. The combination of “indeterminacy about how to measure the risk posed by a crime [and] indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” id., at ___, resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates,” id., at ___. Section 16(b) suffers from those same two flaws. Like ACCA’s residual clause, §16(b) calls for a court to identify a crime’s “ordinary case” in order to measure the crime’s risk but “offers no reliable way” to discern what the ordinary version of any offense looks like. Id., at ___. And its “substantial risk” thresh- old is no more determinate than ACCA’s “serious potential risk” standard. Thus, the same “[t]wo features” that “conspire[d] to make” ACCA’s residual clause unconstitutionally vague also exist in §16(b), with the same result. Id., at ___. Pp. 6–11.

(b) The Government identifies three textual discrepancies between ACCA’s residual clause and §16(b) that it claims make §16(b) easier to apply and thus cure the constitutional infirmity. None, however, relates to the pair of features that Johnson found to produce imper- missible vagueness or otherwise makes the statutory inquiry more determinate. Pp. 16–24.

(1) First, the Government argues that §16(b)’s express require-

Cite as: 584 U. S. ____ (2018) 3

Syllabus

ment (absent from ACCA) that the risk arise from acts taken “in the course of committing the offense,” serves as a “temporal restriction”— in other words, a court applying §16(b) may not “consider risks aris- ing after” the offense’s commission is over. Brief for Petitioner 31. But this is not a meaningful limitation: In the ordinary case of any of- fense, the riskiness of a crime arises from events occurring during its commission, not events occurring later. So with or without the tem- poral language, a court applying the ordinary case approach, whether in §16’s or ACCA’s residual clause, would do the same thing—ask what usually happens when a crime is committed. The phrase “in the course of” makes no difference as to either outcome or clarity and cannot cure the statutory indeterminacy Johnson described.

Second, the Government says that the §16(b) inquiry, which focus- es on the risk of “physical force,” “trains solely” on the conduct typi- cally involved in a crime. Brief for Petitioner 36. In contrast, ACCA’s residual clause asked about the risk of “physical injury,” requiring a second inquiry into a speculative “chain of causation that could possibly result in a victim’s injury.” Ibid. However, this Court has made clear that “physical force” means “force capable of causing physical pain or injury.” Johnson v. United States, 559 U. S. 133, 140. So under §16(b) too, a court must not only identify the conduct typically involved in a crime, but also gauge its potential consequenc- es. Thus, the force/injury distinction does not clarify a court’s analy- sis of whether a crime qualifies as violent.

Third, the Government notes that §16(b) avoids the vagueness of ACCA’s residual clause because it is not preceded by a “confusing list of exemplar crimes.” Brief for Petitioner 38. Those enumerated crimes were in fact too varied to assist this Court in giving ACCA’s residual clause meaning. But to say that they failed to resolve the clause’s vagueness is hardly to say they caused the problem. Pp. 16– 21.

(2) The Government also relies on judicial experience with §16(b), arguing that because it has divided lower courts less often and resulted in only one certiorari grant, it must be clearer than its ACCA counterpart. But in fact, a host of issues respecting §16(b)’s application to specific crimes divide the federal appellate courts. And while this Court has only heard oral arguments in two §16(b) cases, this Court vacated the judgments in a number of other §16(b) cases, remanding them for further consideration in light of ACCA decisions. Pp. 21–24.

JUSTICE KAGAN, joined by JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR, concluded in Parts II and IV–A:

(a) The Government argues that a more permissive form of the void-for-vagueness doctrine applies than the one Johnson employed

4

SESSIONS v. DIMAYA Syllabus

because the removal of an alien is a civil matter rather than a crimi- nal case. This Court’s precedent forecloses that argument. In Jor- dan v. De George, 341 U. S. 223, the Court considered what vague- ness standard applied in removal cases and concluded that, “in view of the grave nature of deportation,” the most exacting vagueness standard must apply. Id., at 231. Nothing in the ensuing years calls that reasoning into question. This Court has reiterated that deporta- tion is “a particularly severe penalty,” which may be of greater con- cern to a convicted alien than “any potential jail sentence.” Jae Lee v.United States, 582 U. S. ___, ___. Pp. 4–6.

(b) Section 16(b) demands a categorical, ordinary-case approach. For reasons expressed in Johnson, that approach cannot be aban- doned in favor of a conduct-based approach, which asks about the specific way in which a defendant committed a crime. To begin, the Government once again “has not asked [the Court] to abandon the categorical approach in residual-clause cases,” suggesting the fact- based approach is an untenable interpretation of §16(b). 576 U. S., at ___. Moreover, a fact-based approach would generate constitutional questions. In any event, §16(b)’s text demands a categorical ap- proach. This Court’s decisions have consistently understood lan- guage in the residual clauses of both ACCA and §16 to refer to “the statute of conviction, not to the facts of each defendant’s conduct.”Taylor v. United States, 495 U. S. 575, 601. And the words “by its na- ture” in §16(b) even more clearly compel an inquiry into an offense’s normal and characteristic quality—that is, what the offense ordinari- ly entails. Finally, given the daunting difficulties of accurately “re- construct[ing],” often many years later, “the conduct underlying [a] conviction,” the conduct-based approach’s “utter impracticability”— and associated inequities—is as great in §16(b) as in ACCA. John- son, 576 U. S., at ___. Pp. 12–15.

JUSTICE GORSUCH, agreeing that the Immigration and Nationality Act provision at hand is unconstitutionally vague for the reasons identified in Johnson v. United States, 576 U. S. ___, concluded that the void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the Framers recognized as vital to ordered liberty under the Constitution. The Government’s argument that a less-than-fair- notice standard should apply where (as here) a person faces only civ- il, not criminal, consequences from a statute’s operation is unavail- ing. In the criminal context, the law generally must afford “ordinary people . . . fair notice of the conduct it punishes,” id., at ___, and it is hard to see how the Due Process Clause might often require any less than that in the civil context. Nor is there any good reason to single out civil deportation for assessment under the fair notice standard

Cite as: 584 U. S. ____ (2018) 5

Syllabus

because of the special gravity of its penalty when so many civil laws impose so many similarly severe sanctions. Alternative approaches that do not concede the propriety of the categorical ordinary case analysis are more properly addressed in another case, involving ei- ther the Immigration and Nationality Act or another statute, where the parties have a chance to be heard. Pp. 1–19.

KAGAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, IV–B, and V, in which GINSBURG, BREYER, SOTOMAYOR, and GORSUCH, JJ., joined, and an opin- ion with respect to Parts II and IV–A, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. GORSUCH, J., filed an opinion concurring in part and concurring in the judgment. ROBERTS, C. J., filed a dissenting opinion, in which KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which KENNEDY and ALITO, JJ., joined as to Parts I–C–2, II–A–1, and II–B.

Key Quote From Justice Kagan’s Majority (Pt. V):

Johnson tells us how to resolve this case. That decision held that “[t]wo features of [ACCA’s] residual clause con- spire[d] to make it unconstitutionally vague.” 576 U. S., at ___ (slip op., at 5). Because the clause had both an ordinary-case requirement and an ill-defined risk thresh- old, it necessarily “devolv[ed] into guesswork and intui- tion,” invited arbitrary enforcement, and failed to provide fair notice. Id., at ___ (slip op., at 8). Section 16(b) possesses the exact same two features. And none of the minor linguistic disparities in the statutes makes any real difference. So just like ACCA’s residual clause, §16(b) “produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id., at ___ (slip op., at 6). We accordingly affirm the judgment of the Court of Appeals.

Key Quote From Justice Gorsuch”s Concurring Opinion:

Vague laws invite arbitrary power. Before the Revolu tion, the crime of treason in English law was so capa ciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crown’s abuse of “pretended” crimes like this as one of their reasons for revolution. See Declaration of Independence ¶21. Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.

The law before us today is such a law. Before holding a lawful permanent resident alien like James Dimaya sub ject to removal for having committed a crime, the Immi gration and Nationality Act requires a judge to determine that the ordinary case of the alien’s crime of conviction involves a substantial risk that physical force may be used. But what does that mean? Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products. How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force? The truth is, no one knows. The law’s silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more.

Key Quote From Chief Justice Roberts’s Dissenting Opinion:

The more constrained inquiry required under §16(b)— which asks only whether the offense elements naturally carry with them a risk that the offender will use force in committing the offense—does not itself engender “grave uncertainty about how to estimate the risk posed by a crime.” And the provision’s use of a commonplace sub- stantial risk standard—one not tied to a list of crimes that lack a unifying feature—does not give rise to intolerable “uncertainty about how much risk it takes for a crime to qualify.” That should be enough to reject Dimaya’s facial vagueness challenge.4

Because I would rely on those distinctions to uphold

——————

4 The Court also finds it probative that “a host of issues” respecting §16(b) “divide” the lower courts. Ante, at 22. Yet the Court does little to explain how those alleged conflicts vindicate its particular concern about the provision (namely, the ordinary case inquiry). And as the Government illustrates, many of those divergent results likely can be chalked up to material differences in the state offense statutes at issue. Compare Escudero-Arciniega v. Holder, 702 F. 3d 781, 783–785 (CA5 2012) (per curiam) (reasoning that New Mexico car burglary “requires that the criminal lack authorization to enter the vehicle—a require- ment alone which will most often ensure some force [against property] is used”), with Sareang Ye v. INS, 214 F. 3d 1128, 1134 (CA9 2000) (finding it relevant that California car burglary does not require unlaw- ful or unprivileged entry); see Reply Brief 17–20, and nn. 5–6.

14 SESSIONS v. DIMAYA ROBERTS, C. J., dissenting

§16(b), the Court reproaches me for not giving sufficient weight to a “core insight” of Johnson. Ante, at 10, n. 4; seeante, at 15 (opinion of GORSUCH, J.) (arguing that §16(b) runs afoul of Johnson “to the extent [§16(b)] requires an ‘ordinary case’ analysis”). But the fact that the ACCA residual clause required the ordinary case approach was not itself sufficient to doom the law. We instead took pains to clarify that our opinion should not be read to impart such an absolute rule. See Johnson, 576 U. S., at ___ (slip op., at 10). I would adhere to that careful holding and not reflexively extend the decision to a different stat- ute whose reach is, on the whole, far more clear.

The Court does the opposite, and the ramifications of that decision are significant. First, of course, today’s holding invalidates a provision of the Immigration and Nationality Act—part of the definition of “aggravated felony”—on which the Government relies to “ensure that dangerous criminal aliens are removed from the United States.” Brief for United States 54. Contrary to the Court’s back-of-the-envelope assessment, see ante, at 23, n.12, the Government explains that the definition is “critical” for “numerous” immigration provisions. Brief for United States 12.

In addition, §16 serves as the universal definition of “crime of violence” for all of Title 18 of the United States Code. Its language is incorporated into many procedural and substantive provisions of criminal law, including provisions concerning racketeering, money laundering, domestic violence, using a child to commit a violent crime, and distributing information about the making or use of explosives. See 18 U. S. C. §§25(a)(1), 842(p)(2), 1952(a), 1956(c)(7)(B)(ii), 1959(a)(4), 2261(a), 3561(b). Of special concern, §16 is replicated in the definition of “crime of violence” applicable to §924(c), which prohibits using or carrying a firearm “during and in relation to any crime of violence,” or possessing a firearm “in furtherance of any such crime.” §§924(c)(1)(A), (c)(3). Though I express no view on whether §924(c) can be distinguished from the provision we consider here, the Court’s holding calls into question convictions under what the Government warns us is an “oft-prosecuted offense.” Brief for United States 12.

Because Johnson does not compel today’s result, I respectfully dissent.

Key Quote From Justice Thomas’s Dissent:

I agree with THE CHIEF JUSTICE that 18 U. S. C. §16(b), as incorporated by the Immigration and Nationality Act (INA), is not unconstitutionally vague. Section 16(b) lacks many of the features that caused this Court to invalidate the residual clause of the Armed Career Criminal Act (ACCA) in Johnson v. United States, 576 U. S. ___ (2015). ACCA’s residual clause—a provision that this Court had applied four times before Johnson—was not unconstitu tionally vague either. See id., at ___ (THOMAS, J., concur ring in judgment) (slip op., at 1); id., at ___–___ (ALITO, J., dissenting) (slip op., at 13–17). But if the Court insists on adhering to Johnson, it should at least take Johnson at its word that the residual clause was vague due to the “‘sum’” of its specific features. Id., at ___ (majority opinion) (slip op., at 10). By ignoring this limitation, the Court jettisonsJohnson’s assurance that its holding would not jeopardize “dozens of federal and state criminal laws.” Id., at ___ (slip op., at 12).

While THE CHIEF JUSTICE persuasively explains why respondent cannot prevail under our precedents, I write separately to make two additional points. First, I continue to doubt that our practice of striking down statutes as unconstitutionally vague is consistent with the original meaning of the Due Process Clause. See id., at ___–___ (opinion of THOMAS, J.) (slip op., at 7–18). Second, if the Court thinks that §16(b) is unconstitutionally vague be cause of the “categorical approach,” see ante, at 6–11, then the Court should abandon that approach—not insist on reading it into statutes and then strike them down. Accordingly, I respectfully dissent.

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

Gee whiz, those Trumpsters and GOP Senators who were overflowing with their praise of Justice Gorsuch’s brilliance during his confirmation hearings must be beside themselves now that he joined the “Gang of Four” in striking down a statute in an immigration enforcement case!

I predicted early on that Gorsuch might surprise those on both sides who expected him to be a “complete Trump toady.” Indeed, the case that drove today’s decision in Dimaya, Johnson v. United States, was written by none other than Justice Scalia, one of Justice Gorsuch’s “juridical role models.” At bottom, Dimaya is all about strict adherence to the Constitution and separation of powers, two things that Gorsuch as extolled in past decisions.

No, I don’t think that Justice Gorsuch is likely to team up with Justices Kagan, Ginsburg, Breyer, and Sotomayor on most future immigration cases. But, I am encouraged that he seems to be going where his legal principles, whether one agrees with them or not, take him, rather than just voting to support the Administration’s hard-line immigration agenda as many had predicted and some had hoped or assumed would happen.

There are other important immigration cases before the Supremes where adherence to the literal language of a statute and skepticism about giving the Executive unbridled power under separation of powers could aid the respondent’s position. So, while this might not be a “normal” majority configuration, it could well be repeated in some future immigration case. Let’s hope so!

Interestingly, I had this issue come up in one of the last cases I wrote before retiring from the Arlington Immigraton Court. I noted that the respondent made a strong argument for unconstitutionality under Johnson v, United States. However, as an Immigration Judge, I had no authority to hold a statute unconstitutional (although, ironically, under today’s convoluted system, the respondent was required to make his constitutional argument before me to “preserve” it for review by the Court of Appeals). So, I merely “noted” the constitutional issue for those higher up the “judicial food chain” and decided the issue on the basis that burglary as defined under the state law in question was not categorically a “crime of violence” under the so-called “categorical approach.”

Two other points worth mentioning:

In this particular case, the Supremes upheld the ruling of the much maligned (particularly by Trump & Sessions) 9th Circuit Court of Appeals, having jurisdiction over California ;
This type of issue is frequently recurring in Immigration Court where many, perhaps the majority, of respondents are unrepresented. How would an unrepresented individual who does not even speak English make the type of sophisticated legal arguments that a) got this case to the Supremes in the first place, and b) persuaded the majority of the Court? Of course, they couldn’t. That’s why much of what is going on in today’s U.S. Immigration Courts is a farce — a clear violation of constitutional Due Process that the Federal Courts have been doing their best to ignore or gloss over for many decades.
As more light is shed on the much misunderstood U.S. Immigration Court system, both Congress and the Article III Courts must come to grips with the procedural, ethical, and fairness inadequacies built into today’s “captive” Immigration Courts and the utter lack of any concern about protecting the legal rights of migrants shown by Jeff Sessions and the rest of the Trump Administration. Shockingly, they have actually pledged to stomp on migrants already unfulfilled rights to fair hearings in the name of a “false efficiency.”
Join the “New Due Process Army” and help stop the continuing abuses of human rights, statutory rights, and constitutional rights of migrants by Sessions and the rest of the “Trump Scofflaws!”

PWS

04-17-18

BIA BUSTED AGAIN — 4TH CIR REAMS MATTER OF JIMINEZ-CEDILLO, 27 I&N DEC. 1 (BIA 2017) — Jiminez-Cedillo v. Sessions, March 20, 2018, Published — Unexplained Departure From Prior Rulings!

Jiminez-Cedillo v. Sessions, 4th Cir., March 20, 2018, Published

PANEL: Circuit Judges Thacker and Harris; Senior Circuit Judge Shedd

OPINION: Judge Pamela Harris

SUMMARY (FROM LEXISNEXIS IMMIGRATION COMMUNITY):

03-20-2018 | 12:47 PM
Author: Daniel M. Kowalski

CA4 Vacates , 27 I&N Dec. 1 (BIA 2017)

Jimenez-Cedillo v. Sessions – “Pedro Josue Jimenez-Cedillo, a native and citizen of Mexico, was ordered removed from the United States after the Board of Immigration Appeals determined that sexual solicitation of a minor in Maryland, to which Jimenez-Cedillo pled guilty, is a crime involving moral turpitude. Under Maryland law, sexual solicitation of a minor does not require that the perpetrator know the victim’s age. And before this case, under Board of Immigration Appeals precedent, a sexual offense against a child categorically involved moral turpitude only if the perpetrator knew or should have known that the victim was a minor. Because the Board failed to explain its change in position, we grant Jimenez-Cedillo’s petition for review and remand for further proceedings. … Here, we are without a reasoned explanation from the Board for its change in position. … Because the Board’s “path” from the Silva-Trevino cases to Jimenez-Cedillo’s cannot “reasonably be discerned,” its decision is arbitrary and capricious and must be set aside. … If on remand the Board takes the position that a change in Silva-Trevino I’s approach to mental culpability is appropriate, then it also should consider whether, under the traditional factors that bear on retroactivity analysis, see ARA Servs., Inc. v. NLRB, 71 F.3d 129, 135–36 (4th Cir. 1995) (citing Retail, Wholesale & Dep’t Store Union v. NLRB, 466 F.2d 380, 389–90 (D.C. Cir. 1972)), that new position may be applied to Jimenez-Cedillo and other aliens similarly situated.”

Here’s a link to the oral argument.

Hats way off to Ben Winograd (argued) and Helen L. Parsonage (on brief)!

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

Go on over to Dan Kowalski at LexisNexis Immigration Communities for all the links to the full decision and more! https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2018/03/20/ca4-vacates-matter-of-jimenez-cedillo-27-i-amp-n-dec-1-bia-2017.aspx?Redirected=true

Congrats to my friends Ben Winograd and Helen Parsonage for holding the BIA accountable once again!

The BIA is caught improperly creating a harder, anti-immigrant line of legal precedent without complying with the basic legal requirements — like legal analysis!

A “real” Attorney General would certainly: 1) slow down the “Falls Church assembly line;” and 2) insist that the BIA take the time and care necessary to insure that its decisions, particularly published precedents, comply with basic legal and analytical requirements. That’s essentially “Due Process 101.”

Instead, White Nationalist xenophobe Jeff Sessions actually is taking steps to make the a system with the “wheels coming off” go even faster and to truncate full hearings and proper legal analysis, while attempting — without providing basic due process — to change long-standing substantive rules of law to further screw migrants. How sick is this Dude!? How disgusting is it that he carries out his destructive agenda without any meaningful oversight by Congress?

The best way to solve this unacceptable situation, before our entire legal system is in shambles, is to see that both the individuals responsible for placing Jeff Sessions in office and those who have abdicated their duties to oversee his activities are removed from office through the ballot box. We know who is responsible for these miscarriages of justice. Now is the time to insure that they are no longer able to carry out their program of destroying America!

Join the New Due Process Army! Due Process Forever!

PWS

03-21-19

PRACTICAL SCHOLARSHIP — PROFESSOR LAILA HLASS @ TULANE LAW TAKES ON “GUILT BY ASSOCIATION” AND “IMPLICIT BIAS “ IN IMMIGRATION ADJUDICATIONS INVOLVING GANG ALLEGATIONS!

HERE’S PROFESSOR HLASS:

HERE’S THE “ABSTRACT:”

The School to Deportation Pipeline

Georgia State University Law Review, Vol. 34, No. 3, 2018

Tulane Public Law Research Paper No. 18-1

60 Pages Posted: 8 Mar 2018

Laila Hlass

Tulane University – Law School

Date Written: 2018

Abstract

The United States immigration regime has a long and sordid history of explicit racism, including limiting citizenship to free whites, excluding Chinese immigrants, deporting massive numbers of Mexican immigrants and U.S. citizens of Mexican ancestry, and implementing a national quotas system preferencing Western Europeans. More subtle bias has seeped into the system through the convergence of the criminal and immigration law regimes. Immigration enforcement has seen a rise in mass immigrant detention and deportation, bolstered by provocative language casting immigrants as undeserving undesirables: criminals, gang members, and terrorists. Immigrant children, particularly black and Latino boys, are increasingly finding themselves in the crosshairs of a punitive immigration system, over-policing within schools, and law enforcement, all of which can be compounded by racial biases and a lack of special protections for youth in the immigration regime. The confluence of these systems results in a trajectory that has been referred to as “the school to deportation pipeline.”

Gang allegations in immigration proceedings are an emerging practice in this trajectory. Using non-uniform and broad guidelines, law enforcement, school officials, and immigration agents may label immigrant youth as gang-affiliated based on youths’ clothes, friends, or even where they live. These allegations serve as the basis to detain, deny bond, deny immigration benefits, and deport youth in growing numbers. This Article posits that gang allegations are a natural outgrowth of the convergence of the criminal and immigration schemes, serving as a means to preserve racial inequality. This Article further suggests excluding the consideration of gang allegations from immigration adjudications because their use undermines fundamental fairness. Finally, this Article proposes a three-pronged approach to counter the use of gang allegations, including initiatives to interrupt bias, take youthfulness into account, and increase access to counsel in immigration proceedings.

Keywords: Immigration, Children, Deportation, Immigration Representation, migrant youth, school-to-deportation-pipeline, race, gangs

Suggested Citation:

Hlass, Laila, The School to Deportation Pipeline (2018). Georgia State University Law Review, Vol. 34, No. 3, 2018; Tulane Public Law Research Paper No. 18-1. Available at SSRN: https://ssrn.com/abstract=3132754

HERE ARE SOME “KEY QUOTES:”

“To be sure, the problem of gang violence in this country is a serious one. It is a problem that requires sustained attention to the complex (and diverse) sociological and neurological reasons that young people decide to associate with gangs or, as the case may be, disengage from them.27 Those concerns, however important, are beyond the scope of this Article. Instead, the goal of this Article is to shed light on the practical realities faced by immigrant youth caught in the school to deportation pipeline, where entrenched biases and insufficient procedural safeguards virtually guarantee their removal based on gang affiliation, no matter how flimsy the evidence supporting that label.28”

. . . .

“Gang allegations in immigration proceedings are part of the immigration regime’s long and ignoble history of explicit and implicit racism. Immigrant children, particularly youth of color, increasingly find themselves in the crosshairs of a punitive immigration system and subject to over-policing within schools and by law enforcement. These factors converge with existing racial biases and a lack of special protections for youth in the immigration regime, creating a perfect storm. To address this problem, gang allegations and related evidence should be excluded from immigration adjudications due to their unreliability and prejudicial nature. Furthermore, safeguards must be implemented to address this phenomenon, particularly as gang allegations appear to be on the rise. The immigration agency should attempt to interrupt adjudicator bias through education, improved decision-making conditions, and data collection. Secondly, youth should explicitly be a positive factor in discretion and bond decisions. Finally, to stall the school to deportation pipeline, children should have access to representation in immigration adjudications.”

AND, HERE’S A LINK TO THE FULL ARTICLE IN THE GEORGIA STATE UNIVERSITY LAW REVIEW:

Hlass-Gangs

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Laila was my colleague at Georgetown Law when she was a Fellow at the CALS Asylum Clinic. In fact, she was a “Guest Lecturer” in my Immigration Law & Policy class.

Although Laila takes the much more scholarly approach, I have been saying consistently that this Administration’s harsh rhetoric and strictly law enforcement approach to diminishing the power of gangs is not only likely to fail, but is almost guaranteed to make the problems worse. Indeed, it’s basically an “on rhetorical steroids” version of the gang enforcement policies that have consistently been failing since the Reagan Administration.

But, we now have folks in charge who glory in their ignorance and bias. Consequently, they refuse to learn from past mistakes and will not embrace more effective community-based strategies that over time would deal with the causes of gang membership and help reduce gang violence.

PWS

03-14-18

MAX BOOT @ WASHPOST: A KLEPTOCRACY OF GRIFTERS – THE TRUMP ADMINISTRATION — “[T]here have been more crooked regimes — but only in banana republics. The corruption and malfeasance of the Trump administration is unprecedented in U.S. history.”

https://www.washingtonpost.com/opinions/the-trump-administrations-no-good-very-bad-wednesday/2018/03/01/7dc60fd2-1d69-11e8-ae5a-16e60e4605f3_story.html

Max Boot reports from The Swamp for the Washington Post:

“One of the great non-mysteries of the Trump administration is why Cabinet members think they can behave like aristocrats at the court of the Sun King. The Department of Housing and Urban Development spent $31,000 for a dining set for Secretary Ben Carson’s office while programs for the poor were being slashed. The Environmental Protection Agency has been paying for Administrator Scott Pruitt to fly first class and be protected by a squadron of bodyguards so he doesn’t have to mix with the great unwashed in economy class. The Department of Veterans Affairs spent $122,334 for Secretary David Shulkin and his wife to take what looks like a pleasure trip to Europe last summer; Shulkin’s chief of staff is accused of doctoring emails and lying about what happened. The Department of Health and Human Services paid more than $400,000 for then-Secretary Tom Price to charter private aircraft — a scandal that forced his resignation.

Why would Cabinet members act any differently when they are serving in the least ethical administration in our history? The “our” is important, because there have been more crooked regimes — but only in banana republics. The corruption and malfeasance of the Trump administration is unprecedented in U.S. history. The only points of comparison are the Gilded Age scandals of the Grant administration, Teapot Dome under the Harding administration, and Watergate and the bribe-taking of Vice President Spiro Agnew during the Nixon administration. But this administration is already in an unethical league of its own. The misconduct revealed during just one day this week — Wednesday — was worse than what presidents normally experience during an entire term.

The day began with a typically deranged tweet from President Trump: “Why is A.G. Jeff Sessions asking the Inspector General to investigate potentially massive FISA abuse. . . . Why not use Justice Department lawyers? DISGRACEFUL!” Translation: Trump is exercised that the Justice Department is following its normal procedures. Sessions fired back: “As long as I am the Attorney General, I will continue to discharge my duties with integrity and honor.” Translation: The president is asking him to act without “integrity and honor.”

This is part of a long pattern of the president pressuring the “beleaguered” Sessions — a.k.a. “Mr. Magoo” — to misuse his authority to shut down the special counsel investigation of Trump and to launch investigations of Trump’s political foes. Because Sessions won’t do that, Trump has tried to force him from office. The president does not recognize that he is doing anything improper. He thinks the attorney general should be his private lawyer. The poor man has no idea of what the “rule of law” even means, as he showed at a White House meeting Wednesday on gun control, during which he said: “Take the guns first, go through due process second.” This from a supposed supporter of the Second Amendment.

But wait. Wednesday’s disgraceful news was only beginning. Later in the day the New York Times reported that Jared Kushner’s family company had received hundreds of millions of dollars in loans from companies whose executives met with him in his capacity as a senior White House aide. The previous day, The Post had reported that officials in the United Arab Emirates, China, Israel and Mexico had discussed how they could manipulate the president’s son-in-law “by taking advantage of his complex business arrangements, financial difficulties and lack of foreign policy experience.” Oh, and don’t forget that during the transition in 2016, while Kushner was trying to refinance a family-owned office building, he met with a Russian bankerclose to the Kremlin and with executives of a Chinese insurance company that has since been taken over by the Chinese government.

President Trump’s nepotism has compromised U.S. standing in the world, says Post editorial page editor Fred Hiatt. (The Washington Post)

Little wonder that the previous week Kushner lost his top-secret security clearance. The wonder is that a senior aide with such dodgy business dealings was allowed access for a full year to the government’s most sensitive secrets — and that he still works in the White House. This is the kind of nepotism that plagues dictatorships and is a defining characteristic of Trump’s kleptocratic rule.

Of course, we are still only scratching the surface of administration scandals. This is a president, after all, whose communications director quit on Wednesday after admitting to lying (but insists her resignation was unrelated); whose senior staff included an alleged wife-beater; whose former national security adviser and deputy campaign manager have pleaded guilty to felonies; whose onetime campaign chairman faces 27 criminal charges, including conspiracy against the United States; whose attorney paid off a porn star; and whose son mixed family and government business on a trip to India. Given the ethical direction set by this president, it’s a wonder that his Cabinet officers aren’t stealing spoons from their official dining rooms. Come to think of it, maybe someone should look into that.”

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

The total ugliness, dishonesty, corruption, and lack of accountability of the Trumpsters is hard to contemplate. Everybody mentioned in this article probably belongs in jail. Other than that, though, they’re a great bunch of guys. Check those pockets and briefcases for the spoons! Draining The Swamp indeed!

PWS

03-02-18

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