LOCAL “DREAMERS” FILE SUIT OVER DHS’S UNFAIR RENEWAL POLICIES!

https://www.washingtonpost.com/local/public-safety/lawsuit-argues-dreamers-unfairly-lost-chance-to-renew-legal-status/2017/11/21/99712c46-ce0c-11e7-a1a3-0d1e45a6de3d_story.html?utm_term=.8dd03195afb6

Rachel Weiner reports in the Washington Post:

“At 26, Nurimaro Park was living paycheck to paycheck, helping support his undocumented parents on a tutor’s salary. So when his work permit expired in May, he waited to renew it because the rules allowed for that. He needed time to save up the $495 fee.

Now, he and thousands of others who let their Deferred Action for Childhood Arrivals permits expire are without legal status in the United States. He and another young immigrant in Northern Virginia are suing the Trump administration in federal court in Alexandria, saying their due process rights have been violated.

“You can’t change the rules on someone without giving them a heads-up first,” said Simon ­Sandoval-Moshenberg, an attorney for the Legal Aid Justice Center representing the two.

Until September, DACA recipients, known as “dreamers,” could file a renewal of their two-year permits up to a year after expiration, a policy laid out on the U.S. Citizenship and Immigration Services website.

“Money is a huge issue; $495 is hard to save up,” said Park, who lives with his parents in Fairfax County. “You have a year of grace period . . . and I was taking advantage of that.”

Nurimaro Park meets with his attorney, Simon Sandoval-Moshenberg, right. (Michael Robinson Chavez/The Washington Post)

Then, on Sept. 5, Attorney General Jeff Sessions announced that the program would end in six months. Although immigrants whose permits are set to expire before March 5 were given the chance to renew them one last time, anyone whose permit had already expired could not.

The DACA program, created by President Barack Obama in 2012, allowed hundreds of thousands of immigrants brought to the United States as children to work legally and attend college.”

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Read the complete article at the link.

Fresh off a big victory on bonds in Romero v. Evanshttps://wp.me/p8eeJm-1JD

Simon ­Sandoval-Moshenberg, and the Legal Aid Justice Center are out to correct another injustice. Not surprisingly, Attorney General Jeff “Gonzo Apocalypto” Sessions and his “Anti-Dreamer Crusade” are at the center of this controversy.

 

PWS

11-22-17

DETENTION/BOND: THE “NEW DUE PROCESS ARMY” WINS A BIG ONE IN THE EDVA – Judge Brinkema Orders Individualized Bond Hearings For Four Individuals With “Reinstated” Removal Orders Now In “Withholding Only Proceedings!” — Romero v. Evans, ___ F. Supp. 3d ___, 2017 WL 5560659 (EDVA 11-17-17) (published)

Romero v. Evans, ___ F. Supp. 3d ___, 2017 WL 5560659 (EDVA 11-17-17) (published)

U.S. District Judge Leonie M. Brinkema

ATTORNEYS FOR RESPONDENTS: Ivan Yacub, Yacub Law Office, Woodbridge, VA, Nicholas Cooper Marritz, Legal Aid Justice Center, Falls Church, VA, Simon Yehuda Sandoval–Moshenberg, Simon Sandoval Moshenburg, Falls Church, VA, Rachel Colleen McFarland, Legal Aid Justice Center, Charlottesville, VA, Mark Alastair Stevens, Murray Osorio PLLC, Fairfax, VA, for Cristian Flores Romero, et al., Petitioners

KEY QUOTES (From Westlaw Version):

“Moreover, Congress clearly intended to have § 1231 govern only the final logistical period, in which the government has actual authority to remove the alien and need only schedule and execute the deportation. Congress has specifically limited the normal “removal period” to 90 days, a limitation that makes sense if the removal period is only meant to govern the final logistical steps of physically removing an alien. Based on the length of petitioners’ detentions to date, it is obvious that withholding-only proceedings take substantially longer than 90 days. As such, it would be contrary to congressional intent to shoehorn a class of aliens whose proceedings will typically far exceed 90 days into the “removal period” for which Congress has specifically intended a 90–day limit.”

. . . .

All told, this petition presents a difficult question of statutory interpretation. Although respondents’ arguments have some merit, petitioners’ position, which attempts to harmonize § 1226 and § 1231 by locating the dividing line between the two sections as the moment when the government has final legal authority to remove the alien, better accords with the text, structure, and intent of the relevant provisions. Accordingly, the Court concludes that petitioners are detained under § 1226(a), not § 1231, and therefore are entitled to individualized bond hearings. For the reasons stated above, respondents’ Motion to Dismiss in Part will be granted, petitioners’ Motion for Summary Judgment will be granted, and respondents’ Motion for Summary Judgment will be denied by an appropriate Order to be issued with this Memorandum Opinion.”

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Those with full Westlaw and/or PACER access can get Judge Brinkema’s full opinion at those sites.

There were quite a few of these “Withholding Only” cases on the Detained Docket when I was at the Arlington Immigration Court. I imagine there are even more now. So, this decision could have a major impact.

Judge Brinkema noted quite correctly that withholding-only proceedings take substantially longer than 90 days.” In other words, “real due process” can’t be rolled off the “judicial assembly line” like it is in some Border Detention Courts where most of the respondents are unrepresented and many are essentially “duressed” by prolonged detention in poor conditions, intentional lack of access to legal assistance, and orchestrated inaccessibility of material evidence into giving up viable claims for protection under our laws.

Nice work by the NDPA “Legal Team!” I know each of the attorneys personally from their work in my courtroom, my classroom, or my “CLE outreach” since retirement. This just continues to demonstrate how “good lawyering” from “outstanding attorneys” can turn potential losers into “winners.”

That’s why the “Sessions Proposals” to “speed up” the U.S. Immigration Judges and put more roadblocks in the way of pro bono legal representation and full due process hearings are so invidious. We need an independent Article I Immigration Court fully committed to Constitutional Due Process! And, we need it now!

PWS

11-22-17

WALL? WHAT WALL? – BUREAUCRATIC BARRIERS BEST BAR TO (NEEDED) IMMIGRATION (Hey, I Could’ve Told ‘Em That!) – But, White Nationalist Goal Of Returning To A “White America” Ultimately Doomed — “You can slow the rate of Latino and Asian immigration, but it won’t make the population whiter,”. . . “It will just become less white at a slower pace.”

https://www.washingtonpost.com/local/immigration/how-trump-is-building-a-border-wall-no-one-can-see/2017/11/21/83d3b746-cba0-11e7-b0cf-7689a9f2d84e_story.html?utm_term=.a71d3a707371

Maria Sacchetti and Nick Miroff report in the Washington Post:

“President Trump’s vision of a “big, beautiful” wall along the Mexican border may never be realized, and almost certainly not as a 2,000-mile physical structure spanning sea to sea.

But in a systematic and less visible way, his administration is following a blueprint to reduce the number of foreigners living in the United States those who are undocumented and those here legallyand overhaul the U.S. immigration system for generations to come.

Across agencies and programs, federal officials are wielding executive authority to assemble a bureaucratic wall that could be more effective than any concrete and metal one. While some actions have drawn widespread attention, others have been put in place more quietly.

The administration has moved to slash the number of refugees, accelerate deportations and terminate the provisional residency of more than a million people, among other measures. On Monday, the Department of Homeland Security said nearly 60,000 Haitians allowed to stay in the United States after a devastating 2010 earthquake have until July 2019 to leave or obtain another form of legal status.

. . . .

Even as they fight court orders seeking to halt parts of Trump’s immigration agenda, Sessions, White House senior adviser Stephen Miller and other key players are finding ways to shrink the immigration system. Miller was an aide to Sessions before both men joined the administration; in less than a year, their immigration policy prescriptions have moved from the realm of think-tank wish lists to White House executive orders.

In October, the White House — in a plan led by Miller — said it had conducted a “bottom-up review of all immigration policies” and found “dangerous loopholes, outdated laws, and easily exploited vulnerabilities in our immigration system — current policies that are harming our country and our communities.”

. . . .

Trump’s tough talk alone appears to be one of the administration’s best bulwarks: Illegal crossings along the border with Mexico have plunged to their lowest level in 45 years, and U.S. agents are catching a far greater share of those attempting to sneak in. Applications for H-1B skilled visas and new foreign-student enrollment have also declined.

William Frey, a demographer at the Brookings Institution, said that until now U.S. immigration rates have largely spared the country from the challenges facing advanced industrial nations such as Japan and Germany that can’t replace aging workers fast enough. By slashing immigration, Frey said, the country could end up with labor shortages and other workforce issues.

But although some of Trump’s most fervent supporters see curbing immigration as a way to turn back the United States’ rapid racial and ethnic transformation, Frey said it is an unrealistic goal. By 2020, census projections show minorities will account for more than half of the under-18 U.S. population, because of higher birthrates in nonwhite populations. And by 2026, the number of whites is projected to begin declining in absolute numbers, he said, as deaths exceed births.

“You can slow the rate of Latino and Asian immigration, but it won’t make the population whiter,” Frey said. “It will just become less white at a slower pace.”

Trump continues to insist his administration will build a border wall, despite exorbitant cost projections and senior DHS officials saying a 2,000-mile structure is impractical. His supporters say they admire the president for plowing ahead in his overhaul efforts and see a historic, generational shift underway.

“There is more than one way to get to the goal,” Dane said. “Legislative solutions are all great, but clearly the administration has done things behind the scenes. . . . The results have been dramatic.”

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Read the full article at the link.

It’s no surprise that guys like Jeff “Gonzo Apocalypto” Sessions and his henchman Stephen Miller are leading this racist-inspired, xenophobic “race to the bottom” that if successful would likely tank our economy and cause even more inequality and social unrest as well as inflicting all sorts of unnecessary pain and suffering on long time residents, needed and productive workers, and the most vulnerable individuals seeking protection under U.S. and international laws.  Really, hard to see how guys like this with retrograde ideas that come right from the “Jim Crow era” of American history get into positions of power for which they are so totally unqualified, both by background and temperament. But, then again, look at whom we have elected our President to represent us on the international scene.

The good news for the majority of Americans is that  the “turn back the clock” plan is ultimately likely to fail. We will eventually move forward again as a diverse, productive, “country of immigrants,” and restore humane and humanitarian values to our national and international profile.

PWS

11-22-17

CALLING FORMER FEDS – SIGN THIS LETTER TO SUPPORT DACA! — DEADLINE IS NOV. 30!

CLICK HERE FOR THE INFO:

https://goo.gl/forms/qj4DhUYYVBxsXSiY2

Thanks to my good friend, pro bono superstar, and Member of the NDPA, Diane Eikenberry, Associate Director for Policy, over at the Heartland Alliance for sending this my way!

PWS

11-22-17

 

GONZO’S WORLD: POST PANS GONZO’S ILL-ADVISED, ILLEGAL, & ILLOGICAL ATTACKS ON “SANCTUARY CITIES!” — Against The “Public Interest!”

https://www.washingtonpost.com/opinions/jeff-sessions-keeps-waging-his-failing-war-against-sanctuary-cities/2017/11/21/00add736-ce2d-11e7-81bc-c55a220c8cbe_story.html

From today’s Washington Post editorials:

“IN ITS crusade against so-called sanctuary jurisdictions, the Trump administration is on an impressive judicial losing streak, having been slapped down in federal courts from San Francisco to Philadelphia. It remains undeterred, as the Justice Department girds for more battles whose stakes — a few million dollars in federal funds withheld from offending cities — make a mockery of the dire rhetoric deployed by officials in Washington.

The administration is wrong on the law and the principle. It has no valid legal justification for its insistence that state and local law enforcement officers act as proxies for federal immigration agents and no basis for threatening to withhold funding if they refuse. By seeking to compel such conduct, the administration ignores police and prosecutors who warn that driving a wedge between law enforcement and immigrant communities will erode public safety. On Monday, a federal judge in San Francisco permanently blocked President Trump’s executive order seeking to deny funding to uncooperative localities, but the administration shows no sign of giving up the fight.

. . . .

Most jurisdictions seek to balance information-sharing and other forms of cooperation with federal authorities with their interest in forging ties to immigrant communities. The judge in Philadelphia, in ruling against the administration’s threat to withhold funding, found the city had done just that, creating no conflict.

As it happens, the grants the feds wanted to withhold in that case would have covered, among other items, drugs used by first responders to save the lives of opioid overdose victims. How would that have been in the public interest?“

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Read the complete editorial at the link.

Gonzo’s extreme White Nationalist, xenophobic agenda drives him to waste the courts’ time and the public’s resources on wasteful and counterproductive publicity stunts while our country’s real law enforcement problems (like, for example, combatting foreign interference in our electoral process, combatting racial profiling in policing, protecting the rights of the LGBTQ community, fixing the due process crisis in our Immigration Courts, or addressing the causes of opioid addiction and gang violence in communities) go largely unaddressed.

PWS

11-22-17

THE GIBSON REPORT – 11-20-17

THE GIBSON REPORT – 11

HERE ARE THE HEADLINES:

THE GIBSON REPORT – 11-20-17

 

TOP UPDATES

 

Latest Asylum Denial Rates for Each Immigration Court Judge

TRAC: “TRAC has just published the tenth in its long running series of reports covering each Immigration Judge’s decisions on asylum cases. The latest report series consists of 293 separate reports and includes each Immigration Judge who decided at least 100 asylum cases at their court between FY 2012 and FY 2017.”

 

In Reversal, Immigration Agency Will Consider Delayed DACA Requests

NYT: “After nearly 100 applications to renew permits that let immigrants stay and work in the United States legally were rejected because they had been delayed in the mail, the United States Citizenship and Immigration Services agency last week said nothing could be done; the decisions were final. But on Wednesday, the agency reversed its position.”

 

NYC Council and Mayor pass ban on ICE on private city property

NYC: “Mayor Bill de Blasio [ ] signed into law Introductions 486-A and 487-A, dramatically limiting New York City’s cooperation with overbroad federal immigration enforcement practices, except in instances where there are public safety concerns. The two bills also end the presence of Immigration and Customs Enforcement (ICE) at Rikers Island and all City facilities.”

 

IDP InfoGraphic on ICE Courthouse Arrests in 2017

IDP: “Since the beginning of 2017, IDP has been closely monitoring ICE activity in state courts, and has seen a significant escalation in ICE arrests and attempted arrests in and around criminal, family, and civil courts throughout New York State and nationwide.”

 

USCIS Is Receiving a Record Number of Citizenship Applications

AIC: “The average processing time for United States citizenship applications used to take five to seven months – already a lengthy timeline for immigrants waiting to get their citizenship vetted and approved. A spike in applications before and after the 2016 presidential election has caused that wait time to double.”

 

Canada fears a huge rush of asylum seekers if their U.S. protected status is lifted

WaPo: “In addition to the new signs on the border, the Canadian government said it is increasing its outreach in communities in the United States that are likely to be affected. It also plans to send Spanish- and Creole-speaking members of Parliament to Los Angeles and Miami to meet community leaders and explain Canadian asylum rules. Canada’s 12 consulates in the United States have also been recruited to spread the message that asylum is not automatic.”

 

New BXDA Supp B procedure Requires G-28

All FUTURE requests for certification of the U Nonimmigrant (U –Visa) I-918 Supplement B Form WILL ONLY BE PROCESSED WHEN RECEIVED directly via email to BxdaUVisa@Bronxda.nyc.gov OR via U.S. Mail to:

Office of the Bronx District Attorney

ATTN: U-Visa Coordinator

198 East 161st Street

Bronx, New York 10451

All requests must include the following: I-918 Supplement B Form, Authorization Form, G–28 Form (Notice of Entry of Appearance as Attorney or Accredited Representative). Please DO NOT send any request and or inquires to Bximmigrant@Bronxda.nyc.gov.

 

Illegal alien indicted for hampering with ankle monitor

ICE: “An illegally present Mexican national was indicted in federal court Wednesday on a charge that he connived or conspired or took any other action designed to prevent or hamper, and with the purpose of preventing and hampering, his departure pursuant to the final order of removal. He was also indicted for illegal reentry after removal.”

 

ACTIONS

 

Survey on Communities Targeted for alleged “gang activities”: NYIC and the CUNY INRC are partnering to create community education materials that are fully accessible to impacted communities, who are increasingly being targeted by immigration enforcement and police for alleged “gang-related” activities. To that end, they have created a survey for legal service providers and advocates working with directly impacted communities.

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PWS

11-21-17

 

SLAM DUNKED AGAIN: SF FEDERAL JUDGE ORRICK ISSUES NATIONWIDE INJUNCTION AGAINST ADMINISTRATION’S ATTACK ON “SANCTUARY CITIES!”

http://www.chicagotribune.com/news/immigration/ct-trump-sanctuary-cities-funding-ruling-20171120-story.html

Sudhin Thanawala reports for the Associated Press in the Chicago Tribune:

“A federal judge on Monday permanently blocked President Donald Trump’s executive order to cut funding from cities that limit cooperation with U.S. immigration authorities.

U.S. District Court Judge William Orrick rejected the administration’s argument that the executive order applies only to a relatively small pot of money and said Trump cannot set new conditions on spending approved by Congress.

The judge had previously made the same arguments in a ruling that put a temporary hold on the executive order targeting so-called sanctuary cities. The Trump administration has appealed that decision to the 9th U.S. Circuit Court of Appeals.

“The District Court exceeded its authority today when it barred the President from instructing his cabinet members to enforce existing law,” Department of Justice spokesman Devin O’Malley said in a statement late Monday. “The Justice Department will vindicate the President’s lawful authority to direct the executive branch.”

Orrick’s ruling came in lawsuits brought by two California counties, San Francisco and Santa Clara.

San Francisco City Attorney Dennis Herrera said the ruling was “a victory for the American people and the rule of law.”

“President Trump might be able to tweet whatever comes to mind, but he can’t grant himself new authority because he feels like it,” he said in a statement.

A lawyer for the DOJ argued during a hearing before Orrick in April that the executive order applied to only a few grants that would affect less than $1 million for Santa Clara County and possibly no money for San Francisco.

Judge in Chicago refuses to change ruling on sanctuary cities
But the judge disagreed, saying in his rulings that the order was written broadly to “reach all federal grants” and potentially jeopardized hundreds of millions of dollars in funding to San Francisco and Santa Clara.

He cited comments by the president and Attorney General Jeff Sessions as evidence that the order was intended to target a wide array of federal funding. And he said the president himself had called it a “weapon” to use against recalcitrant cities.

The Trump administration separately has also moved to withhold one particular law enforcement grant from sanctuary cities, prompting a new round of lawsuits that are pending.”

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WORTHY OF NOTE:

  • Trump’s tweets and Sessions’s bombastic, anti-immigrant public agenda continue to haunt them in litigation.
  • Continuing a recent trend, Judge Orrick basically found the DOJ’s legal position “not credible.”
  • An Administration that (rather hollowly) claims to be interested in effective law enforcement refuses to work cooperatively with many major cities and threatens to withhold law enforcement funds.
  • Clearly, this case is headed “up the line,” probably eventually to the Supremes.

PWS

11-21-17

A DECADE AFTER THE “GEORGETOWN 3” PUBLISHED “REFUGEE ROULETTE” THE PROBLEM OF GROSS DISPARITIES IN ASYLUM ADJUDICATION PERSIST – NEW TRAC STUDY!

==========================================
Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASE

Greetings. Very recent data from the Immigration Courts, current through September 2017, reveals that the outcome for asylum seekers continues to depend on the identity of the immigration judge assigned to hear the case. In the San Francisco as well as the Newark Immigration Courts, for example, the odds of being granted asylum during FY 2012 – FY 2017 ranged between a high of 90 percent down to a low of only 3 percent depending upon which immigration judge the asylum seeker was assigned.

The two courts with the largest number of asylum cases, New York and Los Angeles, also had sizable judge-to-judge differences in asylum outcomes. In the New York Immigration Court judge denial rates ranged from a low of 3.0 percent up to a high of 58.5 percent. The disparity in asylum denial rates among the judges on the Los Angeles court ranged from a low of 29.4 percent denied to a high of 97.5 percent.

Immigration judge-to-judge decision disparities have long existed and are well documented. Despite widespread concern about this problem, between 2010 and 2016 judge-to-judge decision disparities actually increased. This year’s report, updated through FY 2017, shows that disparity levels had become more extreme on both the Newark and San Francisco courts. Judge-to-judge differences for the Chicago Immigration Court also increased. The Los Angeles and San Diego courts saw modest improvement.

To view results for the complete list of courts see the full report at:

http://trac.syr.edu/immigration/reports/490/

To view a particular judge’s report, go to:

http://trac.syr.edu/immigration/reports/judgereports/

In addition, many of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through October 2017. For an index to the full list of TRAC’s immigration tools go to:

http://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563

———————————————————————————
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (http://whitman.syr.edu) and the Newhouse School of Public Communications (http://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to http://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.

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More than a decade ago, three universally respected “scholar litigators,” my good friends and Georgetown Law colleagues Professors Andy Schoenholtz, Phil Schrag, and Jaya Ramirez-Nogales (now at Temple Law) exposed this problem. While there have been some attempts to address it, and results actually appeared to be improving for a time, the problem persists.

Whatever the solution is, I’m sure of what it isn’t: running more cases through the Immigration Court System faster, hiring more Immigration Judges without giving them sufficient training, a weak Appellate Board that won’t speak up for the rights of asylum seekers, and putting “production quotas” on Immigration Judges. 

Haste makes waste” so-called “solutions” only make things worse. Promoting quality decision-making is a more nuanced and painstaking process.

I have no doubt that this system still denies asylum and other forms of legal protection in far too many cases. A more realistic and appropriately generous approach to asylum would force the DHS to grant more of these cases at the Asylum Office and would shorten hearing times for certain types of “clearly grantable” cases.

PWS

11-20-17

 

 

“LET THE HAITIANS STAY” — IT’S THE RIGHT THING TO DO!

The NY Times Editorial Board writes:

“The Temporary Protected Status program provides the sort of assistance the United States should be proud to extend to foreigners fleeing civil unrest, violence or natural disasters. Enacted by Congress in 1990, it currently offers safe and legal harbor to 437,000 people from 10 countries. Many stay for a long time, their status regularly extended because of continued turmoil in their homelands.

That, alas, is a far cry from the spirit of the Trump administration. But even President Trump’s bombastic pledges to throw up a Mexican border wall, expel illegal immigrants and bar entry to Muslims are different from expelling people who, though they may have entered the United States illegally, have been allowed to stay legally, often for many years, with solid jobs and large families, while their homelands remain unsettled or dangerous.

On Thanksgiving, of all days, the Department of Homeland Security is to announce whether it will extend the temporary protected status that was granted to about 50,000 Haitians when their country was devastated by an earthquake in 2010. Their stay has been regularly extended, but in May, John Kelly, then secretary of homeland security and now the White House chief of staff, gave them only six more months, explicitly to get ready to go home. Unless their status is extended this week, they must leave by Jan. 22.

By any reasonable measure, Haiti is not ready to take them back. The destitute country has never fully recovered from the 2010 earthquake or the cholera epidemic that followed. Last year, Hurricane Matthew added even more suffering. The country does not have the resources to absorb 50,000 people, and the money they have sent back is a critical source of income for their relatives and homeland.

Every member of Congress who represents South Florida, where most of these Haitians live, is in favor of extending their status. One of them, Representative Ileana Ros-Lehtinen, a Republican from Miami, is among the congressional members of both parties who have proposed legislation that would allow these immigrants to eventually apply for permanent residency, which is not possible under current rules.”

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Read the full editorial at the link.

Haitians seem to have gotten the “short end” of US immigration, refugee, and humanitarian policies over the years.

Let’s take a look at the latest Country Report on Human Rights issued by the US State Department:

“The most serious impediments to human rights involved weak democratic governance in the country worsened by the lack of an elected and functioning government; insufficient respect for the rule of law, exacerbated by a deficient judicial system; and chronic widespread corruption. Other human rights problems included significant but isolated allegations of arbitrary and unlawful killings by government officials; allegations of use of force against suspects and protesters; severe overcrowding and poor sanitation in prisons; chronic prolonged pretrial detention; an inefficient, unreliable, and inconsistent judiciary; governmental confiscation of private property without due process. There was also rape, violence, and societal discrimination against women; child abuse; allegations of social marginalization of vulnerable populations; and trafficking in persons. Violence, including gender-based violence, and crime within the remaining internally displaced persons (IDP) camps remained a problem. Although the government took steps to prosecute or punish government and law enforcement officials accused of committing abuses, credible reports persisted of officials engaging in corrupt practices, and civil society groups alleged there was widespread impunity.”

Sound like a place where 50,000 additional refugees can be safely returned and reintegrated? Preposterous!

No, the only thing that has changed here is the political motivation of the Administration; TPS — some of the most successful, efficient, and cost effective migration programs the US has ever run — has become a target of the xenophobic, White Nationalist, restrictionist wing of the GOP.

Allowing 50,000 Haitians already residing here to remain costs the US nothing — in fact their continued presence is good for the US economy and our international image. Not to mention that many of the Haitian TPS holders have relatives with legal status in the US.

On the other hand, pulling TPS and removing these individuals could have catastrophic consequences for the individuals involved, their families, and their US communities. And, it’s likely to overwhelm Haiti, a country that has already proved unable to take care of its existing population.

Anywhere but the Trump Administration, extending TPS for Haitians and others while looking for a long-term solution that would give them some type of permanent status in the US would be a “no brainer.” But, in the Trump Administration immigration and refugee policies appear to be driven largely by a policy of “no brains” — just unnecessary cruelty, wasting resources, diminishing our international humanitarian standing, and playing to the xenophobia, racism, and hate of the White Nationalists.

PWS

11-20-17

GONZO’S WORLD: Sessions Gives Congress The “Scarface Treatment” Again — Then He Jokes About Russia — Will Mueller Eventually Wipe The Smirk Off Gonzo’s Face?

http://nymag.com/daily/intelligencer/2017/11/jeff-sessions-has-a-strangely-selective-memory.html

Eric Levitz writes in NY Maggie:

“Jeff Sessions’s memory works in mysterious ways. He has “no clear recollection” of the March 2016 meeting where George Papadopoulos offered to set up a meeting between Donald Trump and Vladimir Putin — but the attorney general does remember shooting down the campaign aide’s unseemly suggestion.

Or, so Sessions tells the House Judiciary Committee.

In October, Sessions testified to the Senate that he did not have any “continuing exchange of information” with Russian operatives — and that he wasn’t “aware of anyone else [on the Trump campaign] that did.” Weeks later, Special Counsel Robert Mueller revealed

“Papadopoulos’s confession to the crime of lying to the FBI. In that written statement, the former Trump campaign national security adviser claimed that he had told Sessions about “connections” he had that “could help arrange a meeting between then-candidate Trump and President Putin” in March of last year. In his testimony before Congress Tuesday, Sessions tried to account for this apparent discrepancy.

“I do now recall the March 2016 meeting at Trump Hotel that Mr. Papadopoulos attended, but I have no clear recollection of the details of what he said at that meeting,” Sessions explained. “After reading his account, and to the best of my recollection, I believe that I wanted to make clear to him that he was not authorized to represent the campaign with the Russian government, or any other foreign government, for that matter.”

Later, Sessions said more firmly, “At the meeting, I pushed back.”

So, the attorney general has no clear memory of the meeting, but has a vivid recollection of behaving admirably during it.

This isn’t the first time that Sessions’s memories of last year have failed him. In January, the attorney general testified to the Senate that he had not “been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day.” Months later, the Washington Post revealed that Sessions had met with the Russian ambassador to the United States multiple times during the 2016 campaign. Sessions responded to these revelations by insisting that he’d met with Ambassador Sergey Kislyak in his capacity as U.S. senator (not as a Trump surrogate), and that they did not discuss the 2016 election. Sessions later conceded that it was “possible” that Trump’s positions on U.S.-Russia relations came up in his discussions with Kislyak.

Some Democrats have suggested that Sessions’s multiple false statements to Congress this year were conscious lies. The former senator responded to such charges with indignation Tuesday.

“My answers have not changed,” Sessions said. “I have always told the truth, and I have answered every question as I understood them and to the best of my recollection, as I will continue to do today … I will not accept and reject accusations that I have ever lied under oath. That is a lie.”

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Meanwhile, speaking to a friendly audience over at the Heritage Foundation, Gonzo treated the Russia investigation as a joke. Mary Papenfuss reports for HuffPost:

“Attorney General Jeff Sessions had lawyers rolling in the aisles with a surprising string of Russian quips at the start of a speech he gave Friday.

Sessions was the keynote speaker at the National Lawyers Convention at Washington’s Mayflower Hotel hosted by the conservative Federalist Society.

He thanked the applauding crowd for welcoming him. Then, smiling mischievously, he added: “But I just was thinking, you know, I should ― I want to ask you. Is  Ambassador Kislyak in the room? Before I get started ― any Russians?” As the laughs grew louder, he continued: “Anybody been to Russia? Got a cousin in Russia?” The audience roared.

The jarring jokes came just three days after Sessions was pressed in Congress on apparent discrepancies in his previous testimony about Trump associates’ meetings with Russians during the 2016 campaign.

Sergey Kislyak, then Russia’s ambassador to the U.S., met with several members of Donald Trump’s campaign during the Republican National Convention, Kislyak and some Trump associates have revealed. Kislyak was widely believed a top spy recruiter.

Kislyak has said he discussed Trump’s policy positions during the campaign with Sessions, an early Trump supporter who was an Alabama senator at the time, The Washington Post reported.

But during his confirmation hearings to become attorney general ― before the Post report ― Sessions said he “never met with or had any conversations with any Russians or any foreign officials concerning any type of interference with any campaign or election.”

Sessions later recused himself from Special Counsel Robert Mueller’s probe into Russian interference in the U.S. election.

Critics were stunned by Sessions’ attitude in the lawyers’ speech.

Sessions “still doesn’t get it” — he’s “in trouble,” Rep. Ted Lieu (D-Calif.) told Wolf Blitzer later on CNN.

“He’s not in trouble where he happened to be in places where there are Russians,” said Lieu, a member of the House Judiciary Committee who grilled Sessions this week. “He is in trouble because he had a nearly hour-long meeting with Ambassador Kislyak — also a spy — and then he failed to disclose the existence of that meeting under oath to the U.S. Senate. That’s why Jeff Sessions is in trouble.”

Blitzer noted that Kislyak “now says he spoke with so many Trump officials it would take him more than 20 minutes to name them all.”

https://www.huffingtonpost.com/entry/sessions-russian-lawyers_us_5a0fb5dee4b045cf43718e96?ncid=APPLENEWS00001

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PWS
11-19-17

NBC NEWS: JOSÉ ANTONIO VARGAS — “The myth of the ‘acceptable immigrant’ is tearing families apart!”

https://www.nbcnews.com/think/opinion/myth-acceptable-immigrant-tearing-families-apart-

Vargas writes:

“In the story of our country, the Trump administration’s dismantling of the DACA program is a national tragedy that will be a source of confusion for generations to come. The program was one of the few compromises that the Obama administration made in attempt to right unjust, inhumane and outdated immigration laws. Our own history tells us that laws are fluid and change over time; they do not dictate morality, but are dictated by morality (or the lack thereof). It wasn’t until the 20th century, for example, that we saw women first granted the right to vote and the abolishment of Jim Crow laws.

The pervasive rhetoric around immigrants who received DACA and their families is predicated on an underlying judgement that their mere presence in this country is a crime. It is not: Being in the U.S. without authorization is a civil offense.

Yet if a crime has been committed, someone must be responsible, right? If you qualify for DACA, it means that you were under a certain age when you came here, so you were too young to have committed a “crime.” You are a “good,” “acceptable,” “assimilated” one. But your parents are not. America will accept you — provisionally — but you must condemn the actions of your family members who brought you here.

“Divide and conquer.”

No wall has yet been built, no border yet drawn, no law yet written that overpowers the love of parents for their children. Let us celebrate and give thanks to the resilience of immigrant families who, despite all possible obstacles, find ways to survive, even thrive. Our laws and various languages may separate them, but united they stand.

Jose Antonio Vargas is a journalist and filmmaker, and the CEO of Define American. In 2010, Vargas revealed his status as an undocumented immigrant. He has produced and directed his autobiographical documentary, “Documented,” broadcasted by CNN, and MTV’s White People.“

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One of the most offensive things that Sessions consistently does is to undervalue the contributions of immigrants, both documented and undocumented. This was particularly true in his slandering of “Dreamers.” They are America’s youth; we’re fortunate to have them!

The closely related idea of GOP White Nationalist restrictionists that “chain migration” is bad is equally insulting and totally wrong. Family immigration has contributed as much to America as has so-called “employment-based” immigration. Undocumented migrants have also contributed to our success, particularly our economic success.

Our real problem is with White Nationalists and restrictionists who insist on overly restrictive immigration policies that are unenforceable, expensive, corrosive, and against our national interests.

PWS

11-19-17

 

 

US IMMIGRATION COURTS MAKE DEADLY MISTAKES: 6th CIRCUIT STOPS BIA, IJ, DHS FROM APPLYING WRONG STANDARDS TO SEND JORDANIAN WOMAN BACK TO TORTURE AND HONOR KILLING! — KAMAR V. SESSIONS, 6th CIR., PUBLISHED — While Sessions Babbles On With False Anti-Asylum Narrative & Bogus Need To Deport Law-Abiding Long-Time US Residents, He Administers a “Court System” That Denies Constitutional Due Process & Ignores Correct Legal Standards In Life Or Death Cases!

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Kamar v. Sessions, 11-17-17, published

PANEL: MERRITT, MOORE, ROGERS, CIRCUIT JUDGES

OPINION: JUDGE MERRITT

KEY QUOTES:

“We now address, under the substantial evidence standard, the question of whether Kamar will be persecuted by threat of death if she returns to Jordan, which is relevant to both withholding under the Act and relief under the Convention. Kamar testified at the merits hearing that her cousins, specifically Alias, want to restore their family’s honor by killing her, and her sister confirmed this. She knows this because of letters she received and communications with family and friends. The Board expressly found Kamar to be credible. On remand, the IJ concluded the letter from Alias was not credible and did not facially threaten Kamar. The IJ reasoned that even if it was credible, there was no indication that Alias knew that Kamar had gotten married and might not want to kill her anymore. The IJ found that the intent to kill Kamar was expressed only through an “ambiguous” comment in the letter from Kamar’s mother. The Board agreed that Kamar did not establish that her fear of persecution was objectively reasonable. The probability of harm occurring in these cases is an inference based on facts in the record. Considering the evidence, it is hard to reconcile these findings with the Board’s conclusion that even if Kamar had a subjective fear of persecution, this fear was not objectively reasonable. There is nothing to cast doubt on Kamar’s testimony. Even if the letter from Alias is not considered, the letter from Kamar’s mother states that Alias wishes to kill Kamar even if it is his last act on earth, and credible testimony confirms this. Nothing indicates that Alias does not still intend to carry out the honor killing. Both Kamar and her sister testified that it did not matter that Kamar married her second husband because Alias knows that she had sexual relations outside of marriage and believes that she committed adultery. The record overwhelming supports the finding that she will be persecuted if she returns.

Finally, we consider whether the Jordanian government would be “unwilling or unable” to protect Kamar from harm. In the country reports in the record, it has been established that governors in Jordan routinely abuse the law and use imprisonment to protect potential victims of honor crimes. These victims are not released from imprisonment unless the local governor consents, the victim’s family guarantees the victim’s safety, and the victim consents. One non-governmental organization has provided a temporary, unofficial shelter as an alternative.

On the other hand, successful perpetrators of honor killings typically get their sentences greatly reduced. Additionally, if the victim’s family, who is usually the family of the alleged perpetrator as well, does not bring the charges, the government dismisses the case. See also Sarhan, 658 F.3d at 657 (“After reviewing the evidence of the Jordanian government’s treatment of honor crimes, we conclude that . . . the government is ineffective when it comes to providing protection to women whose behavior places them in the group who are threatened with honor killings.”).

The Board’s decision outlined the Jordanian government’s efforts to combat honor crimes, including placing potential victims in “protective custody.” As the Ninth Circuit concluded in an analogous case, “This observation omits the fact that such protective custody is involuntary, and often involves extended incarceration in jail.” Suradi v. Sessions, No. 14-71463, 2017 WL 2992234, at *2 (9th Cir. July 14, 2017). While victim protection is necessary, incarceration is an insufficient solution. This practice is akin to persecuting the victim as she “must choose between death and an indefinite prison term.” Sarhan, 658 F.3d at 659. Further, nothing in the record suggests that the country conditions in Jordan have changed such that the government will be able to adequately protect Kamar from being killed. This showing satisfies both of the standards for finding governmental action for purposes of withholding of removal under the Act and also those for protection under the Convention, as it amounts to “pain or suffering” that is inflicted with the acquiescence of a public official or a person acting in an official capacity.

We do not address whether Kamar can safely relocate to escape persecution, which is also relevant to withholding of removal and protection under the Convention. The Board did not mention relocation, and the parties’ briefs do not address the issue. Like the particular social group inquiry, the issue of safe relocation must be addressed in the first instance by the Board. Gonzales v. Thomas, supra.

Substantial evidence does not support the Board’s refusal to find that Kamar will probably be persecuted if she is returned to Jordan, due to her membership in the particular social group we discussed, or that the Jordanian government can or will do nothing to help her. The Board’s decision with regard to those issues is reversed.

. . . .

The Seventh Circuit has found that the Jordanian government’s “solution” to protect honor killing victims is actually a form of punishing the victims of these crimes amounting to mental “pain or suffering,” which is “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1); see Sarhan, 658 F.3d at 659. Taking into account our reasoning and findings above on the factors relating to both withholding of removal under the Act and protection under the Convention, we agree that “[d]espite the contrary conclusion of the Immigration Judge and the Board, the record here also compels the conclusion that the government of Jordan acquiesces to honor killings.” Suradi, 2017 WL 2992234, at *1.

Given the likelihood that Kamar would be subject to involuntary imprisonment at the hands of the Jordanian authorities, resulting in mental pain and suffering, the Board erred in concluding that Kamar failed to establish that it was more likely than not that she would be tortured upon removal to Jordan. We grant the petition with respect to the Board’s reasoning under the Convention.“

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This should have been an easy withholding grant by the Immigration Judge. Indeed, the 6th Circuit characterized the evidence of persecution as “overwhelming.”

Instead the BIA and the Immigration Judge spent literally years passing the case back and forth and still got it wrong! No wonder the system is backlogged when judges at both the trial and appellate levels get the law requiring protection wrong time after time! How would an unrepresented individual have any chance of vindicating her rights in a system this complicated and screwed up! Skewing the system as this Administration has done to make it more difficult for individuals to get effective representation is a direct attack on due process.

Instead of making a conscientious effort to fix this system to provide due process, Sessions’s clear xenophobia and his anti-immigrant, anti-refugee rants encourage  Immigration Judges and BIA Appellate Judges to treat asylum applicants unfairly and misapply the law to deny protection.

There will be no true due process and justice for migrants until the politicized DOJ and this highly biased Attorney General are removed from control of our US Immigration Court system! How would YOU like to be on trial for your life in a court system controlled by Jeff Sessions?

PWS

11-18-17

BIA SAYS CATEGORICAL APPROACH INAPPLICABLE TO VIOLATION OF A PROTECTIVE ORDER — MATTER OF OBSHATKO, 27 I&N Dec. 173 (BIA 2017)

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Matter of OBSHATKO, 27 I&N Dec. 173 (BIA 2017)

BIA HEADNOTE:

“Whether a violation of a protection order renders an alien removable under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii) (2012), is not governed by the categorical approach, even if a conviction underlies the charge; instead, an Immigration Judge should consider the probative and reliable evidence regarding what a State court has determined about the alien’s violation. Matter of Strydom, 25 I&N Dec. 507 (BIA 2011), clarified.”

PANEL: BIA APPELLATE IMMIGRATION JUDGES PAULEY, MALPHRUS, GREER

OPINION BY: JUDGE PAULEY

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COMMON THREAD: The Respondent loses, even though he prevailed before the Immigration Judge.

PWS

11-18-17

 

 

ASYLUM: LAW YOU CAN USE: All-Star Professor Michele Pistone Of Villanova Law Writes & Directs “Must See TV” — “Best Practices in Representing Asylum Seekers”

Go on over to Dan Kowalski’s LexisNexis Immigration Community here for all the links to the 19-part series on You Tube made possible by the American Law Institute with an introduction by none other than Justice Sandra Day O’Connor:

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2017/11/16/video-series-best-practices-in-representing-asylum-seekers.aspx?Redirected=true

Thanks, Michele, for all you do for the cause of Due Process for migrants and better Immigration Court practices!

PWS

11-17-17

 

HON. JEFFREY CHASE COMMENTS ON THE BIA’S RECENTLY WITHDRAWN AMICUS INVITATION ON THE ONE-YEAR BAR!

https://www.jeffreyschase.com/blog/2017/11/16/the-bias-withdrawn-amicus-invitation

Jeffrey writes:

The BIA’s Withdrawn Amicus Invitation

The BIA recently withdrew as moot its invitation for amicus briefs on the following issue: whether an applicant who filed a late application for asylum based on two separate grounds (i.e. religion and coercive population control), and who demonstrated changed conditions as to the religion-based claim to allow for late filing, could have their asylum claim considered as to both grounds.  My question is why the Board felt the need to invite briefing on this issue in the first place?

In the 1990s, several high profile events caused Congress to address the issue of asylum reform.  An early version of a House bill addressing the subject would have required an asylum application to be filed within 30 days of arrival in this country.  The bill’s sponsors believed that asylum applications filed by individuals who had been in this country several years lacked legitimacy, and were being filed as a dilatory tactic in removal proceedings, or affirmatively simply as a way to obtain employment authorization.   I remember explaining to members of Congress (including one of the three sponsors of the bill) that it took potential asylum seekers well in excess of 30 days just to get an initial appointment with pro bono groups such as the one I volunteered with at the time.  If the organization accepted the case, it would take additional time to place it with a law firm (which would usually have to first determine that representation was free of any conflicts of interest).  That was all before the pro bono attorney had even met with the client for the first time.  Furthermore, the filing deadline was being considered in conjunction with a sped-up asylum adjudication process under which asylum officers would issue a final decision on asylum claims within 60 days of receipt.  This meant that asylum applicants really needed to file their documentation along with the application.  But for a refugee forced to suddenly flee their country, compiling supporting documentation from overseas can take time.  Advocacy efforts succeeded in persuading Congress to extend the original 30-day filing deadline to the present one year.

However, an additional concern remained.  When meeting with members of Congress on this issue in the 1990s, I raised the following hypothetical: what if a lawful F-1 student receives a call from home during their third year of college, informing the student that their brother was arrested, the police were asking about the student’s own whereabouts, and warning the student to not return home.  The student in this scenario is a legitimate refugee, but the one-year deadline has long passed.  Congress therefore created an exception to the one-year deadline for changed conditions that give rise to a well-founded fear of persecution.  And in the case before the BIA, the respondent satisfied this exception by establishing changed conditions arising more than one year after the last entry to this country that gave rise to a fear of persecution on account of the respondent’s religion.

Apparently, in addition to the new religion claim, the respondent had a preexisting basis for claiming asylum based on China’s coercive population control policies.  Having been allowed to apply for asylum, the respondent sought to include the older basis for asylum as well as the new ground.  It is not clear what the argument might be for not allowing this.  As the respondent was already found eligible to file an asylum application based on the religion claim, allowing the coercive population control claim would not bestow on the respondent any additional benefits beyond those already obtained through the accepted religion-based asylum claim.  Thus, allowing both grounds to be considered would not encourage the late filing of fraudulent applications for the purpose of obtaining employment authorization.  Furthermore, as the respondent was already pursuing the religion-based asylum claim in removal proceedings, allowing consideration of the additional ground would not serve any dilatory purpose.  The length of time required to complete the removal proceedings before the immigration judge would be the same whether the claim was based on one or two grounds.  Thus, allowing both grounds to be considered would not run afoul of either of the concerns that Congress meant to address in establishing the one year filing deadline.  It is thus entirely unclear why the BIA would consider barring the second ground from consideration.

There are legitimate reasons why one might not file an asylum claim within one year of entry.  In some instances, the refugee was simply not aware of the filing deadline; it is possible that he or she did not even learn of the relief of asylum until well after arrival.  Some refugees may be forced to stay with family or friends living in remote areas where legal advice is not readily available.  But even in urban centers, pro bono resources are presently stretched to their limits, and many lack the funds upon arrival to retain private attorneys.  Some with legitimate fears of persecution might have chosen not to apply due to unfavorable case law, a lack of supporting documentation, or a variety of other legal considerations.

The decision as to whether or not to come forward and apply for asylum, and possibly expose oneself to the risk of deportation, is a complicated one.  But once the decision has been made, it is to the advantage of all to hear any and all bases for asylum at once.  Besides from the administrative efficiency of such an approach, the Board needs to realize that a person’s fears and risks of harm are not so clearly compartmentalized.  An asylum claim begins with the applicant’s subjective fear of persecution.  Various fears may overlap or provide context.  For example, would an asylum claimant who had already experienced traumatic persecution at the hands of China’s government for violating the family planning policies be more likely to possess a genuine subjective fear of future persecution by the same governmental authorities on account of their religion?  Or would the applicant be objectively more likely to be singled out for religious persecution where the government had previously targeted them on population control grounds?

Although it became moot in the case presently before the Board, the issue is likely to be a recurring one.  As the Board’s recent asylum decisions have left much to be desired, it is hoped that when its members eventually consider this issue in a precedential decision, they will reach the correct result.

Copyright 2017 Jeffrey S. Chase.  All rights reserved.

 

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Jeffrey S. Chase is an immigration lawyer in New York City.  Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First.  He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

REPRINTED BY PERMISSION

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I believe that Jeffrey and I have both consistently made the point that the BIA’s precedent decisions all to often fail to reflect a practical understanding of how asylum practice works from the private sector perspective.  That’s probably because none of the BIA’s current Appellate Immigration Judges has any recent experience representing asylum applicants.

PWS

11-16-17