Jeff Sessions – Page 51 – immigrationcourtside.com

JRUBE @WASHPOST: “Horrifying indifference to children’s lives”

https://www.washingtonpost.com/opinions/2018/12/16/horrifying-indifference-childrens-lives/

Rubin writes:

A 7-year-old girl from Guatemala died of dehydration and shock after she was taken into Border Patrol custody last week for crossing from Mexico into the United States illegally with her father and a large group of migrants along a remote span of New Mexico desert, U.S. Customs and Border Protection said Thursday. . . .

According to CBP records, the girl and her father were taken into custody about 10 p.m. Dec. 6 south of Lordsburg, N.M., as part of a group of 163 people who approached U.S. agents to turn themselves in.

More than eight hours later, the child began having seizures at 6:25 a.m., CBP records show. Emergency responders, who arrived soon after, measured her body temperature at 105.7 degrees, and according to a statement from CBP, she “reportedly had not eaten or consumed water for several days.”

The Department of Homeland Security’s statement in response to reports of the child’s death was a moral and legal disgrace:

Traveling north through Mexico illegally in an attempt to reach the United States, is extremely dangerous. Drug cartels, human smugglers and the elements pose deadly risks to anyone who seeks to cross our border illegally. Border Patrol always takes care of individuals in their custody and does everything in their power to keep people safe. Every year the Border Patrol saves hundreds of people who are overcome by the elements between our ports of entry. Unfortunately, despite our best efforts and the best efforts of the medical team treating the child, we were unable to stop this tragedy from occurring.

“Once again, we are begging parents to not put themselves or their children at risk attempting to enter illegally. Please present yourselves at a port of entry and seek to enter legally and safely.”

For starters, the federal government is responsible for the health and welfare of anyone it detains — whether it is a criminal in a prison, a child in its foster-care system or families detained at the border. Regardless of what the children’s parents did or did not do, the United States has an obligation to the children the moment it detains them. Not to give food and water, or to check the health of those it has in custody, is inexcusable. Blaming the parents as Homeland Security Secretary Kirstjen Nielsen did (“This is just a very sad example of the dangers of this journey. This family chose to cross illegally”) reflects her legal and moral obtuseness. In our care, the child’s welfare became our responsibility.

“This tragedy represents the worst possible outcome when people, including children, are held in inhumane conditions,” the ACLU’s Border Rights Center said in a statement. “Lack of accountability, and a culture of cruelty within CBP have exacerbated policies that lead to migrant deaths.” The ACLU continued, “In 2017, migrant deaths increased even as the number of border crossings dramatically decreased. When the Trump administration pushes for the militarization of the border, including more border wall construction, they are driving people fleeing violence into the deadliest desert regions.” The statement pointed out that the incident wasn’t reported for a week. “We call for a rigorous investigation into how this tragedy happened and serious reforms to prevent future deaths,” the statement concluded.

Frank Sharry, executive director of America’s Voice, a progressive pro-immigration group, also responded. Sharry pointed out that a “tragic and preventable death of an innocent seven-year old girl should not be seen as a mistake made in an otherwise humane system, but rather a deliberately cruel and dehumanizing system that has produced yet another death.” His statement asserted that CBP’s holding facilities are characterized by “freezing temperatures, no beds, lights left on, no showers, not enough toilets or toilet paper, filthy conditions, horrible smell, inedible food and not enough clean water to drink, and [are] run by insulting and abusive agents.” The system the administration has set up is seemingly designed to inflict the maximum amount of suffering in a failed attempt to deter migrants:

[The] strategy has many components: tell those who want asylum to request it at ports of entry while making it nearly impossible to request asylum at ports of entry; prosecute those who present themselves to Border Patrol agents between ports of entry for “illegal entry;” separate families in numbers large (now halted by a federal judge) and small (under the flimsy pretext of protecting children from “criminal family members”); detain as long as possible those who seek asylum; lock up minors who arrive unaccompanied minors and scare away their U.S.-residing parents and relatives who want to sponsor them by threatening to arrest and detain those who come forward; and gut asylum standards by unilaterally changing the bases for deciding cases, pressuring trained Asylum Officers to reduce their high rates of deeming Central Americans as having a credible fear of return, and bullying Immigration Judges to deny cases when finally adjudicated.

Now if a pregnant migrant asserts her right to seek an abortion, this administration will go to any lengths to protect the life of the unborn child; for the already-born minors (and adults) in its custody, however, the administration cannot be bothered to ensure humane and safe conditions.

Under the Republican-majority House and Senate, rigorous oversight of the Department of Homeland Security and legislation to try to ameliorate these conditions were all but impossible. With a Democratic-majority House, this will no longer be the case. The House Judiciary Committee will be headed by Jerrold Nadler (D-N.Y.) in the new Congress. He left no doubt as to his intention to get to the bottom of the tragedy and the conditions that allowed this to occur:

On Friday, Nadler and Democrats who will head House Judiciary subcommittees sent a letter to the inspector general for the Department of Homeland Security requesting the IG “initiate an investigation into this incident, as well as CBP policies or practices that may have contributed to the child’s death [and] CBP’s failure to timely notify Congress of this incident.” The letter told the IG, “It is hard to overstate our frustration with the fact that we learned of this incident through media reports one week after the incident occurred. It is clear that CBP failed to follow the reporting requirements laid out in last year’s omnibus appropriations bill until after the news of this death was already public.”

With adequate border security and staffing, a sufficient number of immigration judges deployed to handle the caseload, reversal of the administration’s deliberately cruel policies, and effective diplomacy with and provision of assistance to the countries from which these people are fleeing for their lives, the current, intolerable situation should improve.

It’s a cruel irony that Trump has portrayed refugees as a threat to Americans. In fact, the reverse is true.

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Rubin is right. Part of this Administration’s cruel scheme here is to deflect attention from the real threat to our national security and Constitution presented by Trump and his corrupt, scofflaw gang. And, in the long disgraceful tradition of cowards, bullies, and authoritarians, he does so by attacking the most vulnerable and least able to defend themselves, playing on racism and nationalist jingoism.

That’s why the New Due Process Army is such an important force for protecting the human and legal rights of migrants, and by so doing, protecting the rights of all Americans against Executive abuse!

PWS

12-17=18

NATION’S SHAME: ADMINISTRATION’S POLICY OF CRUELTY TOWARD CHILDREN WILL HAUNT US FOR MANY YEARS: “What the Trump administration does is force Americans to fight for things that should be uncontroversial, common-sense humanitarian principles; we now spend so much time reacting to a new set of atrocities that there is no energy left for anything else.”

https://apple.news/A9OIp3x0DQLqC27X2vxP05A

Jay Willis writes in GQ:

This fall, after national outrage over the Trump White House’s “zero-tolerance” immigration policy forced it to begrudgingly wind down the practice of separating families at the border, administration officials began looking for a new method of implementing xenophobia as official government policy. They found it, apparently, by recruiting volunteers to serve as temporary guardians of unaccompanied minors—and then, if volunteers’ background checks indicated that they were undocumented, detaining those people and preparing them for deportation.

According to the San Francisco Chronicle, 170 individuals who offered to open up their homes—again, to children, many of whom were in federal custody because of the aforementioned separation policy, and who were otherwise forced to live in tent camps and converted warehouses until their immigration status could be resolved—have been arrested over the past few months for their displays of kindness. Of that group, 109 had no criminal record whatsoever.

On Thursday, The Washington Post reported the death of a 7-year-old Guatemalan girl who, along with her father and a larger group of immigrants, turned herself in to Border Patrol agents in a remote area of New Mexico last week. More than eight hours later, she began having seizures; first responders found that she had a fever of 105.7 degrees and hadn’t had food or water in days. She went into cardiac arrest and died of shock and dehydration shortly thereafter.

The agency’s response, which is laden with all the meaningless corporate bromides typically deployed to convey the appearance of sincerity, is more or less “tough shit”:

I suppose the events of this year should have dispelled the notion that when it comes to immigration, anyone associated with this regime would be inclined to momentarily suspend their prejudices to do a kind and decent thing. Yet somehow, the disgracefulness of DHS’s sting operation is still astonishing. The purpose of releasing kids to “qualified adults” is to make life better for innocent children, victims of a broken system in which they have no voice; literally the only relevant question is Will this person provide a safe place for them to live? But the administration cannot stop itself, this time preying on the basic human instinct to care for children, all in the service of rounding up a few more brown people.

The Chronicle notes that the number of children in custody has increased over the past few months—a trend observers blame on the spike in these background-check arrests. This means that despite the official end of the family-separation policy, more kids are being held in overcrowded jails, because their captors have cut off the power of otherwise willing caretakers to do anything about it. If you are lucky and don’t die in Border Patrol custody, a different set of government policies ensures that you’re still going to languish there for the foreseeable future.

There are bills on Capitol Hill that would bar DHS from doing this sort of thing. In the Senate, nine Democrats have signed on to the Families Not Facilities Act, first introduced in November, while in the House, 39 Democrats and two Republicans—both of whom just lost their re-election bids—are co-sponsors of an analogue. “Right now, unaccompanied children are being held in detention facilities or living in tent cities due in part to potential sponsors’ fear of retribution from ICE,” said California senator Kamala Harris in November. “This is an unacceptable obstacle to getting these children into a safe home, and we must fix it.”

The power of bigotry lies in the persistence of those who implement it—in their willingness to commit to it at all times, no matter the circumstances, no matter how dangerous or unconscionable, so as to never invite uncomfortable questions about why bigotry is acceptable in the first place. Death becomes just a risk that prisoners choose to assume, and volunteer caregivers open themselves up to the possibility of becoming prisoners as well.

What the Trump administration does is force Americans to fight for things that should be uncontroversial, common-sense humanitarian principles; we now spend so much time reacting to a new set of atrocities that there is no energy left for anything else. It is a policymaking war of attrition, and its goal is less to change people’s minds than it is to wear them out.

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Yup. Well said!

There is only one “right side of history” on this one. Sure it’s exhausting and frustrating to spend energy that should be spent on improving the system for everyone instead resisting gross violations of legal, Constitutional, and human rights engineered by a White Nationalist regime. But, that’s what the New Due Process Army, “Our Gang,” and many others on the right side of history are all about!

PWS

12-16-18

TAL @ SFCHRON: N. Cal. Immigration Arrests Lag National Stats – No Obvious Explanation – Increases Come Almost Exclusively From Non-Criminals – No Obvious Benefit To Anyone Except Restrictionist Pols!

https://www.sfchronicle.com/politics/article/Are-sanctuary-laws-driving-down-immigration-13467855.php

Are sanctuary laws driving down immigration arrests in Northern California?

Tal Kopan Dec. 14, 2018

WASHINGTON —Immigration arrests fell in Northern California in the past year even as arrests nationally rose 11 percent, a trend that may be linked to tightening sanctuary laws that limit local cooperation with U.S. deportation agents.

But while fewer people in the region were arrested overall, arrests of noncriminal immigrants went up, according to data released Friday, reflecting Trump administration policies that anyone in the country without documentation is a target for enforcement.

The Immigration and Customs Enforcement office that oversees Northern California was one of only a handful nationally to see fewer arrests in the 2018 fiscal year — which ended Sept. 30 — than in 2017. The 14 percent drop in arrests was the steepest decline in the country.

The office, based in San Francisco, was also the only one in the country to post fewer arrests in 2018 than fiscal 2016, the last under President Barack Obama.

Under President Trump, arrests of undocumented immigrants, especially noncriminal ones, have been steadily climbing, as he has made immigration enforcement and border security his central pitches to voters.

Overall, ICE arrested nearly 160,000 immigrants last fiscal year, 34 percent of whom had no criminal convictions. That was an 11 percent increase in arrests overall, but was almost entirely driven by the surge in arrests of noncriminal immigrants. Arrests of those with a criminal conviction slightly trailed the year before.

The story was similar for deportations, which were up overall nationally but dipped slightly in Northern California.

Trump and his deputies have declared that no undocumented immigrant is exempt from the government’s grasp, a change from a policy adopted late in President Obama’s administration that focused ICE’s efforts and finite resources primarily on criminals.

The administration has focused particular ire toward sanctuary cities and has clashed repeatedly with Bay Area and California officials over their policies. The administration sued unsuccessfully to try to block California’s sanctuary law from going into effect after Gov. Jerry Brown signed it in late 2017, and engaged in a heated back-and-forth with Oakland Mayor Libby Schaaf this year after she issued a preemptive public warning about a planned immigration sweep in the region.

It’s difficult to know why San Francisco lagged behind the rest of the country in arrests, but sanctuary laws could be a factor, especially those that limit cooperation between local jails and ICE officers who want to pick up undocumented inmates. ICE officials did not immediately respond Friday to a request for comment.

The data varied substantially by region. The San Diego sector saw among the biggest increases in arrests in the past year, up 32 percent overall with noncriminals representing more than half of those arrested, a jump that could be related to surges of migrants arriving at the border there.

The Los Angeles office, however, was more in line with San Francisco. There, ICE made 7 percent fewer arrests in fiscal 2018, though the agency also arrested a slightly higher number of noncriminal immigrants.

Former Obama administration ICE Director John Sandweg said regions rarely see varying numbers due to conscious decisions.

“It certainly isn’t, and almost never is a, ‘Hey guys, let’s do more or less in this area of responsibility.’ That’s just not the way it works,” Sandweg said.

His best guess to explain the discrepancy in Northern California was the limitation on ICE’s access to jails. Having to arrest more immigrants in the community takes more time and resources than the “efficient” handover of an immigrant in a jail, he said.

That could also explain why more noncriminal immigrants got caught up in the crosshairs, he added.

“This is an unintended consequence of sanctuary policies that I’m not sure is always thought through,” Sandweg said. “If you say no to picking up people in jail, there are going to be some dangerous people we feel compelled to get, so when you do that, you’re not just exposing those dangerous people to ICE but their family, their friends, their neighbors.”

Tal Kopan is The San Francisco Chronicle’s Washington correspondent. Email: tal.kopan@sfchronicle.com Twitter: @talkopan

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Other possible explanations for the pattern of non-criminal arrests in Northern California:

Retaliation for “Sanctuary Cities” laws and for suits finding Sessions’s “Anti-Sanctuary Crusade” illegal;
Need to meet “arrest quotas” for annual bonuses (just like U.S. Immigration Judges, except they are ineligible for bonuses — but the Director and other “Managers” in Falls Church can pocket some extra cash by revving up removals to please the DOJ politicos).

I also wouldn’t put too much store on the so-called “criminal arrest” numbers put out by DHS either. DHS tends to jack up numbers by concentrating on relatively minor offenders rather than hunting down the real “bad guys” which tends to produce lower numbers.

Indeed, in the Federal bureaucracy the “quantity” that produces budget increases is almost always in tension with “quality” which is harder to quantify and certainly harder for Congressional staff to comprehend and “sell” and for individual legislators to take credit. For example, Session’s wasteful program of prosecuting first time border jumpers for misdemeanors probably produced lots of bogus “criminal removals” and perhaps some “criminal arrests” without actually accomplishing anything useful. Indeed most evidence suggests that while wasting time on Sessions’s “racist follies,” Federal prosecutors actually reduced investigation and prosecution of real crimes (e.g. serious felonies) in Federal Courts. https://www.pogo.org/analysis/2018/08/as-zero-tolerance-cases-skyrocket-other-prosecutions-slow/

Indeed, I surmise that an objective study of DHS’s civil, non-criminal enforcement activities would actually show little if any net benefit from leaving U.S. families without one or both parents, taking productive workers out of their jobs, and spreading fear and distrust of local police in ethnic communities. Just how that benefits anyone in the U.S. except Trump and his White Nationalist cronies isn’t apparent to me.

We also should throw in all of the legal time and court time wasted by the DOJ and other Federal prosecutors in tying up the Federal Courts with semi-frivolous litigation to advance their often illegal White Nationalist agenda. If those resources were instead dedicated to getting individuals in Immigration Court represented and improving the quality of Due Process and independence in Immigration Court, we’d be on the way to solving at least one phase of the immigration mess created largely by Congress and the last three Administrations.

For the last two years, DHS Enforcement has been operating largely without any rational enforcement objectives or professional supervision in a Department where management failure, fraud, waste, and abuse are endemic. Some meaningful oversight by the House and some requirement for rational planning, prudent use of taxpayers’ money, and accountability would be most welcome.

PWS

12-15-18

THE FURTHER EXPLOITS OF “OUR GANG” – 5th Circuit Grants Oral Argument In Matter of W-Y-C- & H-O-B- (requiring asylum applicants to clearly delineate the PSG before the IJ)!

“Hot off the wire” from “Our Gang” of Retired Immigration Judges’ Leader Judge Jeffrey Chase:

Good morning, all: The Fifth Circuit has granted oral argument for the week of February 4 in Canterero-Lagos v. Whitaker the appeal of the BIA’s decision Matter of W-Y-C- & H-O-B- (requiring asylum applicants to clearly delineate the PSG before the IJ). Our group filed an amicus brief in that case (there was a second amicus brief on behalf of legal service providers). Lead counsel emphasized the importance of the amicus briefs in convincing the Circuit court to grant oral argument, which OIL opposed, arguing that the case was not of particular interest and that W-Y-C- did not constitute a change in existing law.

Best, Jeff

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Thanks Jeff for passing this along! And special thanks to all of our retired colleagues who make this effort so special and effective and to the amazingly talented and dedicated pro bono advocates who help us be “heard in court.”

Even from our angle, we can see that “great representation makes a difference.” If it makes that much of a difference to retired Immigration Judges trying to be “heard,” just imagine what a difference it makes to those actually appearing in U.S. Immigration Court to literally “plead for their lives!”

That’s why this Administration’s “strategy” of using waiting lists, illegal orders, inhumane detention, family separation, expedited removal, skewed credible fear interviews, and so-called “review before an Immigration Judge” where counsel, even if present, isn’t even allow to speak, to prevent competent representation and fair presentation of claims is such an outrageous abuse of Due Process!

We are still in the early stages of fully exposing the jaw-dropping extent of these abuses to Article III Judges, Congress, and the public! And, we (and our successors and allies in the NDPA) won’t rest until the U.S. Government is finally forced to live up to its cynically abandoned promise of making U.S. Immigration Courts “the world’s best tribunals, guaranteeing fairness and due process for all!”

No wonder that Trump and his White Nationalist cronies are so scared of “gangs like ours!”

PWS

12-14-18

SOPHIA GENOVESE: Advocates Must Keep Pushing Back Against DOJ’s Bias & Unduly Restrictive Interpretations Of Asylum Law!

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/acting-ag-whitaker-takes-aim-at-asylum-seekers-fleeing-family-based-persecution—sophia-genovese

Sophia writes in an article that was published at LexisNexis:

Acting AG Whitaker Takes Aim at Asylum Seekers Fleeing Family-Based Persecution – Sophia Genovese

Sophia Genovese, Dec. 10, 2018 – “Acting Attorney General Matthew Whitaker has followed in his predecessor’s footsteps by referring yet another immigration case to himself, Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018). The Acting AG asks parties to brief “whether, and under what circumstances, an alien may establish persecution on account of membership in a particular social group under 8 U.S.C. 1101(a)(42)(A) based on the alien’s membership in a family unit.”

As background, the Board of Immigration Appeals (BIA) in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017) recognized that membership in a family unit constitutes a particular social group. However, it held that to establish eligibility for asylum on such a basis, “an applicant must not only demonstrate that he or she is a member of the family but also that the family relationship is at least one central reason for the claimed harm.” The BIA denied asylum to the respondent, L-E-A-, for failing to meet this nexus requirement. The respondent was a native and citizen of Mexico whose father owned a general store in Mexico City. Members of a drug cartel approached the respondent’s father to ask if they could sell drugs in the store as they viewed it as a favorable distribution location. The respondent’s father refused. The members of the drug cartel approached respondent to see whether he would sell drugs for them at his father’s store. Upon respondent also refusing, the members of the cartel tried to abduct him, but he was able to get away. The respondent fled to the United States and sought asylum. The IJ and BIA reasoned that the respondent was not entitled to relief because even if the persecutor had harmed the respondent, it was done so as a means to an end, i.e. to sell drugs. In other words, they argued, the persecution was not due to the respondent’s membership in a particular social group and animus towards the family, but rather because he was interfering in their drug trade.

The BIA in Matter of L-E-A- recognized the long history of family units constituting particular social groups. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011); Al-Ghorbani v. Holder, 585 F.3d 980 (6th Cir. 2009); Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008). The BIA has previously “explained that ‘persecution on account of membership in a particular social group’ refers to ‘persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic…such as…kinship ties.” Matter of C-A-, 23 I&N Dec. 951, 955 (BIA 2006) (quoting Matter of Acosta, 19 I&N Dec. 211, 233-34 (BIA 1985)). “It has been said that a group of family members constitutes the ‘prototypical example’ of a particular social group.” INS, Asylum Officer Basic Training Course: Eligibility Part III: Nexus 21 (Nov. 30, 2001) (quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986)). “There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.” Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993). Indeed, the BIA found that L-E-A-’s membership in his family constituted a particular social group. Instead, the key issue was whether the harm he experienced or feared was on account of his membership in that particular social group. The BIA in L-E-A- upheld the IJ’s decision below, opining that “any motive to harm the respondent because he was a member of his family was, at most, incidental…[Rather,] the cartel’s motive to increase its profits by selling contraband in the store was one central reason for its actions against the respondent and his family.” 27 I&N Dec. at 46.

As we and others have previously discussed, the BIA missed the mark in L-E-A-. The BIA in L-E-A- critically notes that “[i]f the persecutor would have treated the applicant the same if the protected characteristic of the family did not exist, then the applicant has not established a claim on this ground.” 27 I&N Dec. at 44. Under this reasoning, L-E-A- should have been granted asylum. But for L-E-A-’s familial relationship with his father, he would not have been targeted by the cartel. In other words, despite their motivation of wanting to sell drugs at his father’s store, the cartel’s motivation in targeting L-E-A- was to get to his father, thus satisfying the nexus criteria. There is a reason why the cartel did not target the father’s neighbor – because the neighbor does not have a close, i.e. family, relationship to him. That the cartel ultimately had monetary motivations is irrelevant in the analysis of why they persecuted L-E-A-.

It is unclear how the Acting AG, or the incoming AG (anticipated to be William Barr), will rule in a case that has already made the obstacles more onerous for asylum-seekers. Given the administration’s animus towards asylum-seekers, it is unlikely that they seek to redress the problems with the BIA’s holding. Rather, it is likely that the Acting AG seeks to build upon the BIA’s flawed reasoning and make it even more difficult for those to flee persecution and obtain asylum. The BIA in Matter of L-E-A- affirmed, without question, that kinship ties are inherently a particular social group. Given the wording of the Acting AG’s question Matter of L-E-A-, 27 I&N Dec. 494 (A.G. 2018), he will likely attack the case on this front.

As outlined by the BIA in Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), and reiterated above, there is no clearer definition of particular social group than kinship ties. To be granted asylum based on one’s membership in a particular social group, the applicant must show that the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. at 392. As set forth in Matter of Acosta, 19 I&N Dec. 211, 212 (BIA 1985), a “common immutable characteristic” is defined as “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” Under Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and clarified in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), the social group must be defined with “particularity,” or be defined by boundaries of who is actually a member of the group. Finally, as explained in Matter of W-G-R-, “social distinction” is defined as the ‘recognition’ or ‘perception’ of the particular social group in society. 26 I&N Dec. at 216. Family units very clearly satisfy each of these requirements, where you cannot change who your family is, where who members of your family are can be defined with particularity, and where others in society can recognize you as a member of your family. A challenge to the family unit particular social group would undermine the construction of nearly all particular social groups thereafter.

Once formulating one’s social group, the applicant must also show that their persecution was on account of their membership in the social group (the “nexus requirement”), and that the government in the country of origin is unable or unwilling to afford them protection from such persecution. As we’ve previously argued, the Courts need to clarify the nexus requirement. In Matter of L-E-A-, for example, the nexus analysis needed to have focused specifically on why L-E-A- was targeted and persecuted – not what the cartel’s ultimate aim was after targeting him. Clarification on this issue is imperative for uniform adjudication of particular social group asylum cases. Additionally, given AG Sessions’ holding in Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018), future courts and advocates will need to clarify the state protection analysis, especially when the persecution is carried out by private actors. In particular, advocates will need to demonstrate through country conditions reports and expert testimony that the country of origin is unable or unwilling to provide protection from these private actors. In Matter of L-E-A- in particular, one can demonstrate that the cartel acts as a quasi-government in the respondent’s town, and that the police do not have control (or choose not to have control) over them.

Although the legitimacy of Acting AG Whitaker’s appointment, and thus his self-referral of cases, has been called into question, advocates must instead focus their efforts on litigating the asylum requirements. The constant self-referral of cases and unilateral, sweeping changes to the law have been tiresome for immigration advocates; however, we should use these opportunities to litigate existing, flawed case law to create a more robust asylum framework so that we can actually protect those fleeing violent persecution.”

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Sophia is absolutely correct!

Like Sessions, Whitaker combines a White Nationalist agenda with some poor intellectual and lawyering skills. Not surprising, because lawyers advancing a racially biased restrictionist agenda are obviously driven by something outside, and usually not even very closely related to, the law and conventional human values.

Their arrogant and outrageous disregard of the law and facts provides a good opportunity for asking Article III Courts and Congress to finally adopt and enforce a legally appropriate, generous, humanitarian approach to asylum law as was directed by the Supremes back in INS v. Cardoza-Fonseca. Notwithstanding some meaningful advances over the three decades since that decision, the “promise of Cardoza” for U.S. asylum law has never been fully recognized.

And this Administration is hell-bent on rolling back even the modest advances that had been painstakingly made. Now is the time to make asylum law work as it was supposed to! Human lives and our integrity as a nation of laws and values depend upon it!

Join the New Due Process Army and fight to hold the “Department of Injustice” and its biased and deviant officials accountable to the law and to history for their naked racism, extreme intellectual dishonesty, failure to uphold the rule of law, and cowardly contempt for human life! Yes, it’s annoying. Yes, it’s hard work! But, in the end it will be worth it to know that you did something worthwhile in your life. And there are few things more worthwhile than protecting the rights and saving the lives of the most helpless, exploited, and vulnerable among us.

For those of you new to “Courtside,” both Judge Jeffrey Chase and I have previously written about how the BIA stood the law of causation on its head to deny a very grantable asylum claim in Matter of L-E-A-. https://wp.me/p8eeJm-UI

https://wp.me/p8eeJm-UI;

Indeed, the Fourth Circuit later absolutely trashed the BIA’s L-E-A- rationale on nexus in Salgado-Sosa v. Sessions, without mentioning L-E-A- by name. https://wp.me/p8eeJm-2aS.

The Fourth and other Circuits have also been very strong in recognizing “family” as a PSG. Indeed, one of the seminal “family-based” cases was Crespin-Valadares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011). That was a case where the Fourth Circuit reversed and slammed the BIA while affirming my finding as an Immigration Judge that a family-based PSG was cognizable. In other words, I was right and the BIA was wrong. But, hey, who’s keeping track?

Now, Whitaker seeks to make things even worse. We should all be totally outraged that the Immigration Courts are under the control of the DOJ and political officials who are completely unqualified to sit in a quasi-judicial capacity. It’s “Clown Court;” but, in this case, the “clowns” are threatening innocent people’s lives!🤡

PWS

12-13-18

EOIR CLIMBS ON TRUMP’S WHITE NATIONALIST DEPORTATION EXPRESS BY UNFAIRLY TARGETING REFUGEE FAMILIES — Read The Latest Analysis From Hon. Jeffrey S. Chase!

https://www.jeffreyschase.com/blog/2018/12/13/eoirs-creates-more-obstacles-for-families

Dec 13 EOIR’s Creates More Obstacles for Families

In a November 16 memo to immigration judges, EOIR’s Director, James McHenry, announced that after a nearly two-year reprieve, “Family Unit” cases are again being prioritized, under conditions designed to speed them through the immigration court system, ready or not, with or without representation, due process be damned.

“Family Unit” is a term created by the Department of Homeland Security as an “apprehension classification” which consists of an adult noncitizen parent or legal guardian, accompanied by his or her own juvenile noncitizen child. Of course, many of the highly-publicized cases of children separated from their parents at the border fall within this category.

Under the new procedures, all Family Unit (or in EOIR parlance, “FAMU”) cases must be completed within 365 days of the commencement of removal proceedings. Just as a point of comparison, many immigration judges in New York are presently setting non FAMU cases for hearings in late 2021. So EOIR wants FAMU cases to be completed in a third of the time of other cases.

In order to accomplish this, such cases (at least in the New York court) are to be scheduled for their first Master Calendar hearing before an immigration judge within 30 days of the court’s receipt of the charging document that commences proceedings. The parent and child are then to be given only one continuance of 40 to 45 days in order to try to obtain counsel. After that, the cases are to be set for a final merits hearing another five to six months out. That only adds up to about 8 months, I imagine to allow another four month “safety zone” just in case. Immigration judges are further directed to make sure they complete the cases in 365 days, and to get them done as soon as possible.

To further increase the odds of success, the FAMU cases are being assigned to brand new immigration judges, for the following reasons. First, the new judges are mostly former ICE prosecutors. Secondly, the new judges are on probation for two years, making them more likely to obey rules in a desire to keep their jobs. The new judges have also just been through training at which they were instructed by the Attorney General that sympathy has no place in their work, that those fleeing domestic violence and gang violence are undeserving of asylum, and that it is more important for them to be efficient than fair.

Judges are expected to bump non-FAMU cases if necessary to meet the completion goals. In other words, those who have patiently waited three years or longer for their day in court, and who have their evidence and witnesses lined up in the hopes of finally obtaining legal status in this country, now run the risk of having their hearings bumped for who knows how much longer in order to speed through the case of a parent and child who likely need more time to obtain counsel and prepare their claims.

I have checked with legal service providers in New York City, and have been told that the 40 to 45 days being provided by EOIR is generally not a sufficient amount of time for the respondents in such cases to retain counsel. Outside of large cities like New York, this time frame is even less realistic, due to the fewer number of NGOs receiving funding to do this type of work.

The new policy therefore lessens the likelihood that families will be able to be represented in their removal proceedings. Unfortunately, recent changes in the law achieved through the certification of cases by the Attorney General (which has continued even under interim AG Whitaker) has made the need for legal representation far more important. It is a daunting task for an unrepresented victim of domestic violence to clearly state a detailed particular social group, defined by an immutable characteristic (but not by the feared harm), and establishing the group’s particularity and social distinction in society; to then establish that the persecutor was motivated by her membership in such group; and then demonstrate both that the government was unwilling or unable to protect her and that she could not reasonably relocate within her country

As I noted in an earlier blog post, https://www.jeffreyschase.com/blog/2018/1/26/0sg8ru1tl0gz4becqimcrtt4ns8yjz the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status states at paragraph 28 that “a person is a refugee within the meaning of the 1951 Convention as soon as he fulfills the criteria contained in the definition…Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.” So the above requirements for particular social group claims are essentially an obstacle course that someone who is already a refugee must negotiate in order to have our government grant them the legal status to which they are entitled. The recent AG decisions have increased the difficulty of the course, and the new FAMU directive will mean that these most vulnerable refugees will have to negotiate the course at breakneck speed, and likely without the assistance of counsel. It bears noting that whatever particular social group definition the asylum-seeker offers the judge is crucial; if it contains one word too many or too few, pursuant to a recent BIA precedent decision, it cannot be corrected on appeal, even if by that stage the applicant has managed to procure representation.

Through these methods, the present administration is playing a game which will result in fewer grants of asylum. The lower grant rate will then allow the administration to claim that those seeking refuge at our southern border are not really refugees, which in turn will allow them to create even greater obstacles, which will in turn lead to even fewer asylum grants.

Tragically, the stakes in this game are high. A recent Washington Post article https://www.washingtonpost.com/graphics/2018/local/asylum-deported-ms-13-honduras/?fbclid=IwAR1vLkNYocAUDPMpfHYgCGKq9jgudMgoTZE5_akRomir-Xk-u4US3crFX88&utm_term=.b7a523fb913e reported on an asylum-applicant who, after being deported to Honduras, was killed by MS-13, just as he had predicted during his hearing in immigration court. The same article stated that Columbia University’s Global Migration Project has tracked more than 60 deportees who were harmed or killed upon return to their countries. As the process is sped up, the number of mistakes leading to wrongful deportations will only increase.

As a former immigration judge, I can say with authority that it takes time and effort to reach the correct result in these cases; furthermore, the accuracy of asylum decisions greatly increases with the involvement of those with knowledge of the legal requirements. In its speed over accuracy approach, and its gaming of the system to deny more asylum claims for its own political motives, the present administration is telling refugee families that only the first and last letters of “FAMU” apply to them.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

Dec 8 Interpreting Pereira: A Hint of Things to Come?

GONZOISM LIVES: Whitaker Delivers “Gonzo Apocalypto Like” Racially Tinged Xenophobic Rant On Immigration Enforcement, Including Bogus Stats and False Narratives — Targets U.S. Courts For Upholding Constitution & Rule Of Law Against White Nationalist Assault!

https://apple.news/ALcj5KtVpQ-6BYe6egb-ipw

R.G. Ratcliffe reports for Texas Monthly:

The word had come down from the U.S. Department of Justice last summer: people who enter the country without authorization are to be referred to as “illegal aliens,” not “undocumented immigrants.” So when Acting Attorney General Matthew Whitaker was in Austin Tuesday to give a pep talk to the U.S. attorneys there, and he referred to these immigrants ten times as “illegal aliens,” and once resorted to a slang term that is sometimes considered racist as he described Austin as a Top 20 city, with “over 100,000 illegals” living in the area.

Immigrant advocates for years have tried to dissuade people from using terms like “illegal alien” or “illegal immigrant” because a person cannot of themselves be illegal. A person can commit an illegal act, such as entering the country without authorization or in violation of the law. Terms such as these, advocates say, dehumanize immigrants. The Associated Press in 2013 removed the term “illegal alien” from proper usage for journalists for this very reason.

But the Department of Justice memo says that since the word “undocumented” does not appear in the U.S. Code, attorneys and public information officers should refer to people who enter the country illegally as “illegal aliens.” In the most literal sense, this may be true, but it also advances the Trump Administration’s efforts to portray all immigrants who enter the country illegally as part of a force of darkness.

“More important than the financial cost we pay is the cost we pay in American lives. Massive illegal immigration makes all of us less safe,” Whitaker told the attorneys.

“We know that the vast majority of the cocaine, methamphetamine, heroin, and fentanyl that are killing record numbers of Americans was not made in this country. It came over the Southern border. We also know that vicious gangs like MS-13 recruit new members from the tens of thousands of unaccompanied minors who cross our border illegally every year. The result is that Americans die every year because we do not have a secure Southern border.” He did not mention that MS-13 got its start on the streets of Los Angeles.

Whitaker pointed to the case of Juan Lopez in Austin. Lopez last month was sentenced to 49 years in prison for raping a family friend as the woman’s child watched. Lopez had been deported after serving a sentence for homicide and then re-entered the country illegally. “It is a crushing failure to secure our border and just one example of where we can do better.”

Without giving exact details, Whitaker said the U.S. Border Patrol had apprehended more than 50,000 people in the past two months who have crossed the U.S. border illegally from Mexico, including 23,000 people in family units. “That’s the size of a small city every single month.” He said the estimated 11 million people living in the United States illegally is equal to the population of Georgia.

Whitaker repeatedly emphasized the prosecution of people who enter the country illegally, but he never mentioned President Trump’s push for a border wall. He did, however, criticize federal courts that have blocked Trump’s efforts to block immigration.

Whitaker took no questions from the news media gathered for the event. It was one-way messaging. Journalists did not have a chance to ask about the wall or whether Whitaker thought the millions of people already living in the country illegally should be deported. We didn’t get a chance to ask whether immigration reform laws would ameliorate the situation. There were no questions about reports that he is under consideration to serve as the president’s chief of staff, or the status of a Department of Justice investigation into whether Interior Secretary Ryan Zinke used his office for personal gain.

Whitaker’s time in office is short. Former Attorney General William Barr has been nominated by Trump to replace former Attorney General Jeff Sessions. But while he holds the office, Whitaker should know a news conference without questions is just a dog and pony show that depends on media complicity.

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Here’s the “full text” of Whitaker’s Speech: https://t.co/KeNU8OQXJd

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Whitaker continues to spread the false narratives attempting to connect migrants with increased crime and drug trafficking; there is no such documented connection;
Whitaker also tries to connect migrants with gang activities; but, it’s much more likely that an asylum applicant from the Northern Triangle will be fleeing from gangs than a member of one;
Whitaker ignores the U.S.’s own role in both creating the gang problem in the Northern Triangle (it actually was “deported” from Los Angeles, as noted by Ratcliffe) and following questionable strategies to combat gangs in both the U.S. and the Northern Triangle;
The vast, vast majority of the 11 million or so undocumented individuals in the U.S. are not criminals; at worst, they are just seeking safety and a better life for themselves and their families, very understandable human tendencies; even assuming that they ultimately don’t belong here, why intentionally demean and dehumanize them by using the racially tinged term “illegal alien” and “illegals,” rather than treating them with the respect and humanity due all human beings;
The comparison between the “State of Georgia” and the number of undocumented individuals is directly out of one of Sessions’s inflammatory speeches to EOIR; the real point is that undocumented individuals are like our “51st state” — they contribute much to our economy and society (just ask those who worked for Trump) and ask for relatively little — Trump and the GOP have routinely and disgracefully exploited their labor and contributions while denying their fundamental humanity;
Well over one million of the undocumented population are actually here with legal permission: mainly through DACA and TPS; while the Administration would like to terminate those programs, they have not yet been able to do so; consequently, the individuals are not here “illegally” — they can’t be removed until their current status is terminated.
Whitaker mis-states the asylum approval rate: it’s actually 35% for 2018, not “a five-year average of 20%” as Whitaker falsely claims (since the 35% was a “recent low” the real five-year average per TRAC is much higher, well in excess of 40% — indeed up until FY 2016, asylum approvals actually exceeded denials, until the Trump Administration started interfering with the system); for the Northern Triangle it’s 23%, 20%, and 18% for El Salvador, Guatemala, and Honduras respectively, multiples of Whitaker’s false claim of 9%; and the “allowed to remain in the U.S.” for asylum applicants from El Salvador, Guatemala and Honduras whose cases were decided by Immigration Judges during FY 2018 were 31%, 25%, and 24% respectively);
More important, except for the restrictionist right, nobody familiar with our asylum system doubts that the approval rate for the Northern Triangle would be much higher, perhaps twice as high or more, if individuals were 1) given reasonable access to lawyers; 2) time to gather evidence and prepare their cases; and 3) had their claims adjudicated by a fair, impartial, apolitical, independent judges, well-trained in asylum law, and committed to the generous principles established by the Supremes in Cardoza-Fonseca (not today’s politicized and captive EOIR);
Many of those denied asylum, whether properly or not, clearly face harm or death upon return — but, Whitaker doesn’t admit that we’re really knowingly returning individuals to possible death;
Actually the Federal Courts are the ones upholding the “rule of law” against the efforts of biased, unqualified, political hacks like Whitaker who are committed to carrying out a racist, White Nationalist agenda that mocks our Constitution and our national values.
As noted by Ratcliffe, Whitaker lacked the guts to take questions; not really surprising for someone so committed to various false and misleading narratives.

The appointment of Whitaker as Acting AG is every bit as much of a national disgrace as the tenure of White Nationalist Jeff “Gonzo Apocalypto” Sessions. That Trump’s next AG Bill Barr called Sessions “outstanding” does not bode well for the rule of law, or the legal rights and human dignity of people of color and other vulnerable groups who are the most in need of those protections.

Fortunately, the New Due Process Army is in the field and “ready for action” against the further abuses planned by Whitaker and Barr.

PWS

12-12-18

UPI ANALYSIS OF LATEST EOIR ASYLUM STATS ACTUALLY SHOWS THAT MANY FROM NORTHERN TRIANGLE (PARTICULARLY EL SALVADOR) HAVE VALID CLAIMS FOR PROTECTION, BUT SESSIONS’S POLITICAL ACTIONS AND CONTROL OVER U.S. IMMIGRATION JUDGES ARTIFICIALLY FORCED THE GRANT RATE DOWN! – It’s Time For An Independent “Article I” U.S. Immigration Court & A Level, Apolitical Playing Field For Asylum Applicants!

https://apple.news/AHg-L3Cy-SEG6Gi9SR1rk_w

Patrick Timmons reports for UPI:

Asylum denials jump; immigration judges’ discretion attacked

MEXICO CITY, Dec. 10 (UPI) — New data about the number of asylum applications granted by the United States this year show how the Trump administration has dramatically narrowed asylum granted to people fleeing persecution in their home countries — though significantly more Central Americans have been admitted over the past decade.

“Asylum acceptance rates are at a 20-year low, and the recent TRAC data confirms that,” said Sarah Pierce, policy analyst for the non-partisan and independent Migration Policy Institute, referring to data from the Transactional Records Access Clearinghouse.

For fiscal 2018, TRAC’s statistics show immigration judges denied 65 percent of asylum claims — up from 42 percent in 2017. There were 42,224 asylum cases decided in 2018, an 89 percent increase over the total number of cases decided in 2016.

Due to a backlog in the immigration system, some asylum seekers have been able to live in the United States for three years to five years while their claims are adjudicated, a situation the administration has tried to address by changing some rules and practices.

“This administration is trying to address people who are trying to take advantage of the system. But unfortunately this administration’s approach tends to punish asylum seekers rather than just specifically looking at those individuals who are taking advantage of the system,” Pierce said.

The administration’s broad approach to all asylum seekers has had the effect of narrowing asylum by increasing immigration judges’ workloads by setting quotas, ending discretionary decision making and rewriting immigration rules to deny relief to asylum seekers fleeing domestic and gang violence.

Immigration experts told UPI the administration’s changes to how immigration judges work has spiked a general increase in asylum denials.

Northern Triangle

There has been an increased flow of asylum seekers from Central American countries, particularly those from the Northern Triangle countries of Honduras, El Salvador and Guatemala.

And the fact that more of them are getting approved shows they are “sincere humanitarian migrants,” Pierce said.

A new TRAC tool shows Central Americans now fare better than in previous years. Salvadorans receive asylum in rates higher than Guatemalans or Hondurans. In 2004, Salvadorans’ asylum approval rate was 6 percent. In 2018, it rose to 23 percent. Guatemala’s grant rate in 2018 was 18 percent, the lowest of three countries, with Honduras at 20 percent.

Pierce said that changes in immigration law under the Obama administration help account for significant changes in asylum approval rates for people fleeing the Northern Triangle. Immigration judges over the past decade were more accepting of domestic and gang violence as grounds for asylum, with successes helping to develop case law.

The rise in asylum for Salvadorans has to do with direct violent threats, rather than domestic violence, which is a common claim among Guatemalan asylum seekers, or gang violence, common among Hondurans.

“The circumstantial evidence suggests El Salvador tends to have the most direct violent threats,” said Everard Meade said, director of the Trans-Border Institute at the University of San Diego.

Data comparing the Northern Triangle countries’ asylum seekers’ claims is hard to come by. However, Meade said in 2014 the United Nations High Commissioner for Refugees issued its report, “Children on the Run,” about unaccompanied Central American minors highlighting direct violence in El Salvador as a reason for flight. UNHCR interviewed almost 400 children with 66 percent of El Salvadorans reporting flight for threat of direct violence Guatemalans reported 20 percent, Hondurans at 44 percent.

But Central Americans’ asylum approvals might be a blip. Former Attorney General Jeff Sessions this year removed domestic violence and gang violence as grounds for asylum in immigration court proceedings.

“These private acts of violence claims are typically the ones we are seeing from the Northern Triangle,” Pierce said, “including El Salvador.”

Discretionary decision-making

The general picture, however, is that more people are failing to win asylum than ever before because the Trump administration has changed how judges work.

“The asylum decisions and denial data for fiscal year 2018 is really about discretionary relief that used to be available under [President Barack] Obama but is not available under [President Donald] Trump anymore,” Meade said.

Prior to Trump-Sessions, immigration judges used to employ a form of discretionary relief called administrative closure. This was a form of temporary protection against deportation that did not grant any permanent immigration status, unlike asylum, which is a pathway to citizenship.

“Immigration judges had people coming before them who had really compelling stories but those stories did not necessarily cleave close enough to the asylum standard to grant them asylum. But the judges really felt they did not want to return them to dangerous situations, either. They also felt they were people who were credible, who had told the truth, and so they were administratively closing their cases,” Meade said.

The practice of administrative closure ended this year with a Sessions memorandum.

“Administrative closure was a widespread practice and that is exactly what explains how the denial rate can go up so dramatically without the grant rate going down. Actually, the grant rate has gone up. In defense of the institutions, the modest increase in the grant rates suggest people have some really good asylum claims,” Meade said.

The situation in El Paso

Carlos Spector, a veteran El Paso immigration lawyer, said that although the asylum rate has increased nationwide, there is little evidence of successful asylum claims in El Paso’s immigration court.

“This year, I have lost some asylum cases that had really compelling claims,” Spector said, adding that 98 percent of his clients are Mexican.

Mexicans generally do not fare well in immigration court. In 2018, 14.5 percent of Mexican asylum seekers received asylum. Part of the reason is that immigration judges were administratively closing cases, protecting from deportation but stopping short of permanent relief.

For 2018, the latest TRAC data reveal El Paso’s immigration judges reviewed 297 cases, granting asylum 47 times. In 2017, they reviewed 148 cases and granted asylum 12 times. These low asylum rates, some of the lowest in the nation, mean El Paso’s immigration judges have a reputation for enforcing law and order, Spector said.

“I’ve been tracking asylum cases of Mexican nationals for the past few years and it is more or less the same rate along the border from San Diego to Brownsville,” Spector said.

“Because we are on the border and these judges are political appointees and these judges do understand the government’s mandate of holding or guarding the border and they take that law enforcement approach,” Spector said, “the denials are much, much higher on the U.S.-Mexico border, and they always have been.”

TRAC compiled asylum approval and denial statistics for fiscal year 2018, the first full year of Trump’s presidency, based on Freedom Of Information Act requests to the Justice Department’s Executive Office of Immigration Review, the agency charged with adjudicating defensive asylum claims in immigration court.

Photoby Ariana Drehsler/UPI : Jose Hernández, 17, styles his hair at El Barretal shelter in Tijuana, Mexico, on Dec. 9, 2018.

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Just as I have been saying all along! The Trump Administration’s claim that low asylum approval rates indicate the system is being “gamed” by applicants is a bogus cover up. Even taken at “face value,” a 20-25% chance of being granted asylum hardly shows a system being “gamed.” At most, it shows that Immigration Judges are applying a much more restrictive standard than Asylum Officers considering “credible fear” claims at the border. Far from being “gaming,” that would be consistent with (although not necessarily required by) an intentionally much more generous standard for getting a fair adjudication in a removal hearing (“passing credible fear”) than for actually achieving relief (“a favorable order from an Immigration Judge after a full merits hearing”).

But, what really appears to be going on here are artificially restrictive, politically inspired “tweaks” to asylum law and procedures specifically intended to disadvantage those in danger from the Northern Triangle. Additionally, inappropriate detention policies are intended to force many more applicants to proceed without lawyers or to abandon appeals — making it like “shooting fish in a barrel” for those Immigration Judges with a predilection to deny relief who are under great pressure to “produce” more final orders of removal. It also appears that a disturbing number of Immigration Judges along the Southern Border view themselves as agents of DHS and Administration enforcement policies, rather than as fair and impartial decision makers committed to giving asylum seekers the “benefit of the doubt” under the law.

This all adds up to what appears to me to be a significant “cover up” of politicized wrong-doing and a mass denial of Due Process orchestrated by the Administration through the Department of Justice.

Why are the Administration, DHS, and DOJ so afraid of giving asylum applicants fair access to lawyers, time to prepare and document their cases, and timely fair hearings before impartial quasi-judicial adjudicators whose sole focus is getting the right substantive result, rather than achieving some type of assembly line enforcement-related “production quotas?”

Why waste time on “gimmicks” — most of which eventually prove to be illegal, ineffective, or both — rather than concentrating on getting to the merits of these cases in a timely manner and “letting the chips fall where they may.”

Surely, among a largely artificially created 1.1 million case “backlog” there are hundreds of thousands of cases that could be “administratively closed” as an exercise of prosecutorial discretion to allow more recently arrived cases to be timely heard without increasing backlogs or creating further wasteful “Aimless Docket Reshuffling.”

Eventually, the “mask will be ripped off” what’s really happening in our U.S. Immigration Court system. When that happens, the results could be ugly and damaging to the reputations of those orchestrating and enabling what certainly appears to be a disgraceful and intentional miscarriage of justice!

PWS

12011-18

“Bottomless Pinocchios” — A Catalog Of The Liar-in-Chief’s Most Repeated Lies — Not Surprisingly, A Number Of Them Involve Immigration!

🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥

https://www.washingtonpost.com/classic-apps/the-false-claims-that-trump-keeps-repeating/2018/12/09/c2859d36-fc0c-11e8-862a-b6a6f3ce8199_story.html

Glenn Kessler and Joe Fox report for the Washington Post:

The Fact Checker has evaluated false statements President Trump has made repeatedly and analyzed how often he reiterates them. The claims included here – which we’re calling “Bottomless Pinocchios” – are limited to ones that he has repeated 20 times and were rated as Three or Four Pinocchios by the Fact Checker.

The Trump tax cut was the biggest in history

Trump repeated some version of this claim 123 times

Even before President Trump’s tax cut was crafted, he promised it would be the biggest in U.S. history – bigger than Ronald Reagan’s 1981 tax cut. Reagan’s tax cut amounted to 2.9 percent of the gross domestic product and none of the proposals under consideration came close to that level. Yet Trump persisted in this fiction even when the tax cut was eventually crafted to be the equivalent of 0.9 percent of GDP, making it the eighth largest tax cut in 100 years. This continues to be an all-purpose applause line in the president’s rallies. Read more

No, President Trump’s tax cut isn’t the ‘largest ever’

Overstating the size of U.S. trade deficits

Trump repeated some version of this claim 117 times

President Trump frequently overstates the size of trade deficits. But he tips into Four-Pinocchio territory with his repeated use of the word “lost” to describe a trade deficit. (Alternatively, he sometimes says China “made” or “took out” $500 billion.) Countries do not “lose” money on trade deficits. A trade deficit simply means that people in one country are buying more goods from another country than people in the second country are buying from the first country. Trade deficits are also affected by macroeconomic factors, such as currencies, economic growth, and savings and investment rates. Read more

Fact-checking Trump’s tough trade talk

The U.S. economy has never been stronger

Trump repeated some version of this claim 99 times

In June 2018, the president hit upon a new label for the U.S. economy: It was the greatest, the best or the strongest in U.S. history. The president can certainly brag about the state of the economy, but he runs into trouble when he repeatedly makes a play for the history books. By just about any important measure, the economy today is not doing as well as it did under Presidents Dwight D. Eisenhower, Lyndon B. Johnson or Bill Clinton — or Ulysses S. Grant. Read more

Is this the ‘best economy ever’?

Inflating our NATO spending

Trump repeated some version of this claim 87 times

During the presidential election, Trump consistently inflated the U.S. contribution to the North Atlantic Treaty Organization. Once he became president, his inaccuracy has persisted, but with a twist. He often claims that “billions and billions” of dollars have come into NATO because of his complaints. All that is happening is that members have increased defense spending as a share of their economies — a process that was started before Trump even announced his candidacy. Read more

President Trump’s ongoing misunderstanding of NATO funding

The U.S. has started building the wall

Trump repeated some version of this claim 86 times

President Trump has sought $25 billion to fund his long-promised wall along the southern border. But Congress has not given it to him. There was nearly $1.6 billion included in the appropriations bill he signed early in 2018 for border protection, but the legislative language was specific: None of the funds could be used for Trump’s border wall prototypes. Instead the money was restricted to fencing, and it was generally used for replacement fencing. He also frequently overstates the amount of money he has obtained for the nonexistent wall. Read more

Has construction of Trump’s border wall started?

The U.S. has the loosest immigration laws in the world — thanks to Democrats

Trump repeated some version of this claim 52 times

Trump repeatedly claims that the United States has the loosest immigration laws, but that’s simply not true. In fact, the United States has among the world’s most restrictive laws, placing it 25th among developing nations in welcoming immigrants, according to data from the Organization for Economic Cooperation and Development. The president frequently blames Democrats for the current legal system but that’s wrong, too — much of current immigration policy was decided either under a Republican president or through court cases. Read more

Is there a law that requires families to be separated at the border?

Democrats colluded with Russia during the campaign

Trump repeated some version of this claim 42 times

Throughout the special counsel’s investigation of possible ties between the Trump campaign and Russia, Trump has sought to deflect attention by asserting that the Democrats colluded with Russia. But he has little evidence to make his case, which largely rests on the fact that the firm hired by Democrats to examine Trump’s Russia ties at the same time was working to defend a Russian company in U.S. court. In fact, U.S. intelligence agencies found that Russian entities hacked Democratic leaders’ email during the campaign. Read more

Did Hillary Clinton collude with the Russians to get ‘dirt’ on Trump to feed it to the FBI?

The border wall will stop drug trafficking

Trump repeated some version of this claim 40 times

In demanding a wall on the southern border, Trump has asserted that it would stop the flow of drugs. But the Drug Enforcement Administration says that most illicit drugs enter the United States through legal ports of entry. Traffickers conceal the drugs in hidden compartments within passenger cars or hide them alongside other legal cargo in tractor-trailers and drive the illicit substances right into the United States. Meanwhile, fentanyl, a deadly synthetic opioid, can be easily ordered online, even directly from China. Read more

Will a border wall stop drugs from ‘pouring in?’

U.S. Steel is building many new plants

Trump repeated some version of this claim 37 times

This is one of Trump’s strangest claims. Since he imposed tariffs on steel, the president has repeatedly claimed that U.S. Steel was building new steel plants. Depending on his mood, the number has ranged from six to nine plants. But U.S. Steel made no such announcement. It merely stated that it would restart two blast furnaces at the company’s Granite City Works integrated plant in Illinois — one in March and the other in October, for a total of 800 jobs. The company in August also said it would upgrade a plant in Gary, Ind., but without creating any new jobs. Read more

The U.S. has spent $6 trillion (or more) on Middle East wars

Trump repeated some version of this claim 36 times

Trump started making a version of this claim shortly after taking office, first claiming $6 trillion but then quickly elevating it to $7 trillion. Trump acts as if the money has been spent, but he is referring to a study that included estimates of future obligations through 2056 for veterans’ care. The study combines data for both George W. Bush’s war in Iraq (2003) and the war in Afghanistan (2001), which is in Central/South Asia, not the Middle East. The cost of the combined wars will probably surpass $7 trillion by 2056, when interest on the debt is considered, almost four decades from now. Read more

Has the U.S. spent $7 trillion in the Middle East?

Thousands of MS-13 members have been removed from the country

Trump repeated some version of this claim 33 times

Within six months of becoming president, the president began claiming that his administration had deported thousands of members of the violent MS-13 gang. There had been a crackdown, but the count is in the hundreds. Then, he expanded the claim to say thousands had been deported or imprisoned. But there is nothing that supports these claims. For most of the country, MS-13 is not a threat; the estimated 10,000 members are concentrated in a few Hispanic communities, primarily around Long Island, Los Angeles and the Washington area. Read more

McCain’s vote was the only thing that blocked repeal of the Affordable Care Act

Trump repeated some version of this claim 30 times

Sen. John McCain (R-Ariz.) dramatically refused to advance in the Senate a limited repeal of the Affordable Care Act, but Trump has repeatedly used that vote as his all-purpose excuse for the failure to eliminate the health-care law. This oversimplifies the precarious state of Obamacare repeal at the time. The Senate version of full repeal had failed, with nine “no” votes from Republicans. Even if McCain had supported the “skinny” repeal, lawmakers still would have had to negotiate a compromise agreement and passage was not assured. Read more

Robert S. Mueller III is biased because of conflicts of interest

Trump repeated some version of this claim 30 times

Trump has often misleadingly claimed the “witch hunt” is tainted because of conflicts of interest, such as an unverified (and denied) dispute over golf fees when Mueller was a member of a Trump golf club. Eleven out of 16 attorneys on Mueller’s team have contributed to Democrats, including Clinton and Obama; 13 are registered Democrats. Under federal law, Mueller is not allowed to consider the political leanings of his staff when hiring them, but he took action against a former team member when texts expressing anti-Trump sentiments were discovered. Read more

Fact Check: Do the political preferences of Mueller’s team risk its independence?

Inflating gains from a 2017 trip to Saudi Arabia

Trump repeated some version of this claim 23 times

Trump has repeatedly inflated the gains from his 2017 trip to Saudi Arabia, upping the amount from $350 billion to $450 billion when he came under fire for defending crown prince Mohammed bin Salman. According to the CIA, Mohammed ordered the killing of Washington Post contributing columnist Jamal Khashoggi. The administration, with double-counting, could only document $270 billion in tentative agreements. Separately, Trump inflated the jobs said to be created from the purported investments. Many are in Saudi Arabia, indicating few jobs would be created for Americans. Read more

Fact Check: The Trump administration’s tally of $350 billion-plus in deals with Saudi Arabia

About this story

Source: Washington Post reporting. Reporting by Glenn Kessler, Meg Kelly, Salvador Rizzo, Michelle Ye Hee Leeand Nicole Lewis. Meg Kelly also contributed to this story.

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More bogus border narratives are unfolding as I’m writing this. Disingenuous CBP officials are manipulating data to tell the Senate that the border is out of control.

What is really happening is that kids and other asylum seekers are basically turning themselves in to be processed and get the hearings to which they are entitled. Why? Because the Trump Administration has purposely slowed down the process at legal Ports of Entry.

Clearly, instead of wasting money on troops and unneeded detention, the Administration should be sending Asylum Officers to the border to complete the screening. Once screened, those with “credible fear” can be matched with lawyers. Represented asylum applicants show up for hearings nearly 100% of the time, thus making prolonged detention unnecessary.

Also, since it now appears that the bulk of the “artificial backlog” in Immigration Court actually was “illegally commenced” though defective notices, those cases could simply be removed from the docket. That would free up U.S. Immmigration Judges to hear asylum cases within a reasonable (6-18 month) time frame.

Where there is a will, there’s a way. Additionally, as I often point out, doing things the right, legal way would likely cost far less than the “publicity stunts” now being conducted by the Administration at the border. But, doing the right thing and making the laws work just isn’t something that Trump and his minions are interested in, as the “Bottomless Pinocchios” related above show!

PWS

12-11-18

🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥🤥

MARK JOSEPH STERN @ SLATE ON WHY JUDGE BYBEE’S 65-PAGE EVISCERATION OF TRUMP’S LAWLESS ASYLUM ORDER IS SO IMPORTANT: “The next time Trump floats a flagrantly lawless idea, then, it’s worth remembering that nativist bluster cannot transmogrify an illegitimate command into a permissible executive order. Just because the president considers ending citizenship for the children of unauthorized immigrants, for instance, does not mean he can actually get away with it. Like the INA, the Constitution grants certain rights that the president cannot unilaterally rescind—including birthright citizenship. Bybee felt no compunction to pretend that Trump’s illicit scheme has any legitimacy. Neither should the rest of us.”

https://slate.com/news-and-politics/2018/12/bush-judge-rejects-trump-asylum-plan.html

Stern writes:

If there were any lingering doubt that Donald Trump’s latest plan to curb asylum is flatly unlawful, Judge Jay Bybee quashed it on Friday.

In a meticulous 65-page opinion, Bybee—a conservative George W. Bush appointee—explained that the president cannot rewrite a federal statute to deny asylum to immigrants who enter the country without authorization. His decision for the 9^thU.S. Circuit Court of Appeals is a twofold rebuke to Trump, halting the president’s legal assault on asylum-seekers and undermining his claim that any judge who blocked the order is a Democratic hack. The reality is that anyone who understands the English language should recognize that Trump’s new rule is illegal. Like so many of Trump’s attention-grabbing proposals, this doomed policy should never have been treated as legitimate in the first place.

Friday’s ruling involves a proclamation that Trump signed on Nov. 9, ostensibly to address the “continuing and threatened mass migration of aliens with no basis for admission into the United States through our southern border.” The order alluded darkly to the caravan of asylum-seekers then approaching the border, which Trump tried and failed to exploit as a campaign issue. To remedy this “crisis” and protect “the integrity of our borders,” he directed the federal government to deny asylum to any immigrant who enters the United States unlawfully.

Ten days later, U.S. District Judge Jon S. Tigar halted the new rule, holding that it likely exceeded the president’s authority. Trump responded by dismissing Tigar, a Barack Obama appointee, as an “Obama judge.” The comment led to a rare rebuke from Chief Justice John Roberts, who told the AP: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

As Trump escalated his feud with Roberts, his Department of Justice appealed Tigar’s ruling to the 9^thCircuit. It faced a seemingly propitious panel: Bybee, Judge Edward Leavy, and Judge Andrew D. Hurwitz. Bybee is a very conservative jurist who authored the original “torture memo,” justifying the Bush administration’s brutal interrogation of detainees. Leavy is a staunchly conservative Reagan appointee; only Hurwitz, an Obama appointee, leans to the left. Under Trump’s partisan vision of the judiciary, the DOJ would seem to have a good shot at reviving the asylum rule.

But Bybee didn’t bite. In a crisp and rigorous opinion for the court, he wrote that Tigar was correct to conclude that the policy almost certainly violates the law. The problem, Bybee explained, is that Congress expressly provided asylum-seekers with the right that Trump now seeks to revoke: an ability to apply for asylum regardless of how they came into the country. The Immigration and Nationality Act states that “[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival …), irrespective of such alien’s status, may apply for asylum in accordance with this section.” This provision implements the 1951 Convention Relating to the Status of Refugees, which the United States has ratified. It directs signatories not to “impose penalties [on refugees] on account of their illegal entry or presence.”

The plain text of the law couldn’t be clearer: Immigrants in the U.S. are eligible for asylum whether they arrived legally (through a “designated port of arrival”) or illegally. If the president wants to change that fact, he’ll have to convince Congress to break its treaty obligations and alter the law.

Obviously, the Trump administration has not persuaded Congress to overhaul asylum law. So it tried to work around the existing statute by allowing unauthorized immigrants to request asylum—then directing the government to deny their application. Bybee easily disposed of this semantical workaround. “It is the hollowest of rights,” he wrote, “that an alien must be allowed to apply for asylum regardless of whether she arrived through a port of entry if another rule makes her categorically ineligible for asylum based on precisely that fact. … The technical differences between applying for and eligibility for asylum are of no consequence to a refugee when the bottom line—no possibility of asylum—is the same.”

In light of the proclamation’s fundamental illegality, Bybee, joined by Hurwitz, affirmed Tigar’s nationwide restraining order. Leavy dissented in a curious five-page opinion insisting that the INA grants the executive branch power “to bring safety and fairness to the conditions at the southern border.” His anemic analysis is no match for Bybee’s thorough demolition of the DOJ’s illogical position. It seems quite likely that a lopsided majority of the Supreme Court will eventually agree with Bybee’s majority opinion.

It is satisfying to see a “Bush judge” (in Trumpian parlance) hand the president such a stinging legal defeat. Roberts overstated the case in totally dismissing the role of partisanship in the judiciary; of course some judges are political. But for now, a majority of the federal judiciary remains willing to stand up to the president, at least when he issues blatantly illegal orders. Judges like Roberts and Bybee may let Trump manipulate ambiguous laws to do some very bad things to immigrants. But they are not willing to let the president ignore a clear and constitutional directive from Congress.

The next time Trump floats a flagrantly lawless idea, then, it’s worth remembering that nativist bluster cannot transmogrify an illegitimate command into a permissible executive order. Just because the president considers ending citizenship for the children of unauthorized immigrants, for instance, does not mean he can actually get away with it. Like the INA, the Constitution grants certain rights that the president cannot unilaterally rescind—including birthright citizenship. Bybee felt no compunction to pretend that Trump’s illicit scheme has any legitimacy. Neither should the rest of us.

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Stern points out that contrary to Trump’s belief that he can bully, co-opt, and control the judicial system, in the way that other authoritarian fascists have done in the past, even so-called “conservative” judges have lines beyond which they won’t be pushed. And, lifetime tenure protects them from retaliation by Trump and his corrupt White Nationalist cronies.

Few things can be more important than having judges across the board, regardless of judicial philosophy, stand up to Trump and his lawless abuses of Executive Power as well as “pushing back” on a Department of Justice that has, with a few exceptions, lost its professionalism, moral compass, and courage, along with any semblance of independence.

PWS

12-10-18

TAL @ SFCHRON: HOW LOW CAN THEY GO? – ICE Using Kids As “Bait” To Catch Non-Criminal Migrants, As “Kiddie Gulag” Reaches New Heights!

ICE arrested undocumented adults who sought to take in immigrant children

By Tal Kopan

WASHINGTON — The Trump administration has arrested 170 undocumented immigrants who came forward to try to take migrant children out of government custody, including more than 100 with no criminal record, federal officials said Monday.

The new totals were released as the number of undocumented immigrant children in government custody has reached record highs, with no signs of slowing down.

According to an Immigration and Customs Enforcement spokesman, the agency arrested 170 immigrants from July through November on the basis of information the government learned about them when they applied to take an immigrant child out of custody. Of that group, nearly two-thirds, or 109, had no criminal record.

ICE had confirmed 41 such arrests in September, prompting Democrats to propose legislation to block the practice. California Sen. Kamala Harris has joined onto a bill in the Senate, which has a bipartisan House counterpart, that would bar ICE from arresting an adult seeking to take in a child on the basis of information uncovered in a background check.

More: https://www.sfchronicle.com/politics/article/ICE-arrested-undocumented-adults-who-sought-to-13455142.php

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Golly gee, and some folks wonder why the “Abolish ICE” Movement continues to gather steam! Yes, ICE performs important law enforcement functions. But, lots of their “mission” isn’t really essential to good law enforcement, and some is actually quite counterproductive and wasteful.

Clearly, there is a case for Congress at least re-examining the amount of funding, priority, and effectiveness of some of which ICE is doing on the “civil side” these days. And, what would be the purpose of jamming more folks into a court system already crumbling under a largely artificially created 1.1 million case backlog? Not much that I can see, unless these folks being “lured” are really “bad actors,” which the majority of them don’t seem to be.

PWS

12-10-18

WINNING ASYLUM & SAVING LIVES IN THE “ERA OF A-B-“ – Seven Steps To Success

WINNING ASYLUM

WINNING ASYLUM & SAVING LIVES IN THE “ERA OF A-B-“ – Seven Steps To Success*

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

NEW YORK CITY BAR

DECEMBER 4, 2018

Good evening, and thanks so much for inviting me. In the “old days,” I would have started with my comprehensive disclaimer. But, now that I’m retired, I’m just going to hold the Bar Association, my fellow panelists, and anyone else of any importance whatsoever “harmless” for my remarks tonight. They are solely my views, for which I take full responsibility. No sugar-coating, no bureaucratic doublespeak, no “party line,” no BS – just the unvarnished truth, as I see it!

“We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence; therefore, they are entitled to enter the United States. Well, that’s obviously false but some judges have gone along with that.” “Good lawyers, using all of their talents and skill, work every day—like water seeping through an earthen dam—to get around the plain words of the INA to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the act. That is our most serious duty.”

Those, my friends, are obviously not my words. They are the words of former Attorney General Jeff Sessions. Incredibly, this totally biased, xenophobic, misinformed, and glaringly unqualified individual was in charge of our U.S. Immigration Court system which helps explains why it is such a total mess today. And Acting Attorney General Whitaker’s certification of two cases yesterday promises a continuation of improper political interference with the Immigration Courts in derogation of Due Process.

One of Sessions’s most cowardly and reprehensible actions was his atrocious distortion of asylum law, the reality of life in the Northern Triangle, and Due Process for migrants in Matter of A-B-. There, he overruled the BIA’s important precedent in Matter of A-R-C-G-, a decision actually endorsed by the DHSat the time, and which gave much need protection to women fleeing persecution in the form of domestic violence. Take it from me, Matter of A-R-C-G-was one of the few parts of our dysfunctional Immigration Court system that actually worked and provided a way of consistently granting much needed protection to some of the most vulnerable and most deserving refugees in the world.

Sessions is gone. But, his ugly legacy of bias and unfairness remains. Fortunately, because he was a lousy lawyer on top of everything else, he failed to actually accomplish what he thought he was doing: wiping out protection for refugee women, largely from Central America. That’s why it’s critically important for you, as members of the “New Due Process Army” to fight every inch of the way, for as long as it takes, to restore justice and to force our U.S Immigration Courts to live up to their unfulfilled, and now mocked, promise of “guaranteeing fairness and Due Process for all!”

I’m going to give you seven very basic tips for overcoming Matter of A-B-. I’m sure that my colleagues, who are much more involved in the day to day litigation going on in the courts than I am, can give you lots of additional information about addressing specific issues.

First, recognize that Matter of A-B- really doesn’t change the fundamental meaning of asylum.It just rejected the way in which the BIA reached its precedent in A-R-C-G-— by stipulation without specific fact-findings based on the administrative record. Most of it is mere dicta. On a case by case basis, domestic violence can still be a proper basis for granting asylum in many cases. Indeed, such cases still are being granted by those Immigration Judges committed to following the rule of law and upholding their oaths of office, rather than accepting Sessions’s invitation to “take a dive.”

Just make sure you properly and succinctly state your basis, establish nexus, and paper the record with the overwhelming amount of reliable country condition information and expert opinion that directly contradicts the bogus picture painted by Sessions.

Second, resist with all your might those lawless judges in some Immigration Courts who are using, or threatening to use, Sessions’s dictum in Matter of A-B- to deny fair hearings or truncate the hearing process for those claiming asylum through domestic violence.If anything, following the overruling of A-R-C-G-,leaving no definitive precedent on the subject, full, fair case-by-case hearings are more important than ever. Under Due Process, asylum applicants are entitled to a full and fair opportunity to present their claims in Immigration Court. Don’t let wayward, biased, or misinformed Immigration Judges deny your clients’ constitutional and statutory rights.

Third, keep it simple. Even before A-B-, I always said that any proposed “particular social group” (“PSG”) longer than 25 words or containing “circular” elements is D.O.A. I think that it’s time to get down to the basics; the real PSG here is gender! “Women in X country” is clearly a cognizable PSG. It’s undoubtedly immutable or fundamental to identity; particularized, and socially distinct. So, it meets the BIA’s three-part test.

And, “gender” clearly is one of the biggest drivers of persecution in the world. There is no doubt that it is “at least one central reason” for the persecution of women and LGBT individuals throughout the world.

Fourth, think political. There is plenty of recent information available on the internet showing the close relationship between gangs and the governments of the Northern Triangle. In some cases, gangs are the “de facto government” in significant areas of the country. In others, gangs and local authorities cooperate in extorting money and inflicting torture and other serious harm on honest individuals who resist them and threaten to expose their activities. In many cases, claiming political or religious persecution will be a stronger alternative ground than PSG.

Fifth, develop your record. The idea that domestic violence and gang-based violence is just “common crime” advanced by Sessions in A-B-is simply preposterous with regard to the Northern Triangle. Establish records that no reasonable factfinder can refute or overlook! Use expert testimony or expert affidavits to show the real country conditions and to discredit the watered down and sometimes downright false scenarios set forth in Department of State Country Reports, particularly under this Administration where integrity, expertise, and independence have been thrown out the window.

Sixth, raise the bias issue. As set forth in a number of the Amicus Briefs filed in Matter of A-B-, Sessions clearly was a biased decision maker. Not only had he publicly dismissed the claims of female refugees suffering from domestic violence, but his outlandish comments spreading false narratives about immigrants, dissing asylum seekers and their “dirty lawyers,” and supporting DHS enforcement clearly aligned with him with one party to litigation before the Immigration Courts. By the rules governing judicial conduct there was more than an “appearance of bias” here – there was actual bias. We should keep making the record on the gross violation of Due Process caused by giving a biased enforcement official like Sessions a quasi-judicial role.

Seventh, and finally, appeal to the “real” Article III Courts. What’s happening in Immigration Court today is a parody of justice and a mockery of legitimate court proceedings. It’s important to “open the eyes” of the Article III Judges to this travesty which is threatening the lives of legitimate refugees and other migrants.

Either the Article III’s do their jobs, step in, and put an end to this travesty, or they become complicitin it. There’s only one “right side of the law and history” in this fight. Those who are complicit must know that their actions are being placed in the historical record – for all time and for their descendants to know – just like the historical reckoning that finally is happening for so- called “Confederate heroes” and those public officials who supported racism and “Jim Crow.”

Now is the time to take a stand for fundamental fairness and decency! Join the New Due Process Army and fight to vindicate the rights of asylum seekers under our laws against the forces of darkness and xenophobic bias! Due process forever!

*This is not a “verbatim transcript” of what I said. Rather it is a compendium and extension of the “talking notes” that I used as a member of the panel.

HON. JEFFREY S. CHASE: DHS’S ARROGANT “IN YOUR FACE” APPROACH TO “PEREIRA NOTICE” CASES APPEARS TO BE BACKFIRING WITH ARTICLE IIIs — US District Judge in Nevada Latest To Find That “Pereira Defective NTAs” Gave Immigration Judge No Jurisdiction Over Removal Case!

https://www.jeffreyschase.com/blog/2018/12/8/interpreting-pereira-a-hint-of-things-to-come

I haven’t posted for a while. I’ve been extremely busy, but there was something else: my response to so many recent events has been just pure anger. Although I’ve written the occasional “cry from the heart,” I don’t want this blog to turn into the rantings of an angry old man.

So I resume posting with a case that provides a glimmer of hope (and, hopefully, a hint of things to come?). Last week, the U.S. Court of Appeals for the Eleventh Circuit, a court generally known for its conservatism, issued an order granting an emergency stay of removal in the case of Manuel Leonidas Duran-Ortega v. U.S. Attorney General. As is common in such types of grants, the three-judge panel issued a decision consisting of two sentences, granting the stay, and further granting the request of interested organizations to allow them to file an amicus (“friend of the court”) brief.

What made this decision noteworthy is that one of the judges on the panel felt the need to write a rather detailed concurring opinion. Among the issues discussed in that opinion is the impact of the Supreme Court’s decision in Pereira v. Sessions (which I wrote about here: https://www.jeffreyschase.com/blog/2018/9/1/the-bia-vs-the-supreme-court) on Mr. Duran-Ortega’s case. As in Pereira, the document filed by DHS with the immigration court in order to commence removal proceedings lacked a time and date of hearing. In her concurring opinion, Judge Beverly B. Martin observed that under federal regulations, jurisdiction vests, and immigration proceedings commence, only when a proper charging document is filed. The document filed in Mr. Duran-Ortega’s case purported to be a legal document called a Notice to Appear. But as Judge Martin noted, “The Supreme Court’s recent decision in Pereira appears to suggest, as Duran-Ortega argues, that self-described “notice to appears” issued without a time or place are not, in fact, notice to appears” within the meaning of the statute.

Judge Martin (a former U.S. Attorney and Georgia state Assistant Attorney General) continued that the Pereira decision “emphasized” that the statute does not say that a Notice to Appear is “complete” when it contains a time and date of the hearing; rather, he quotes the Pereira decision as holding that the law defines that a document called a “Notice to Appear” must specify “at a minimum the time and date of the removal proceeding.” The judge follows that quote with the highlight of her decision: “In other words, just as a block of wood is not a pencil if it lacks some kind of pigmented core to write with, a piece of paper is not a notice to appear absent notification of the time and place of a petitioner’s removal proceeding.”

As this Reuters article reported (https://www.reuters.com/article/us-usa-immigration-terminations/u-s-courts-abruptly-tossed-9000-deportation-cases-heres-why-idUSKCN1MR1HK) enough immigration judges had a similar reading of Pereira to terminate 9,000 removal cases in the two months between the Supreme Court’s decision and the issuance of a contrary ruling by the Board of Immigration Appeals, in which the BIA’s judges, out of fear of then-Attorney General Jeff Sessions, chose appeasement of their boss over their duty to reach fair and independent decisions.

Judge Martin referenced that BIA decision, Matter of Bermudez-Cota, but stated: “This court need not defer to Bermudez-Cota if the agency’s holding is based on an unreasonable interpretation of the statutes and regulations involved, or if its holding is unambiguously foreclosed by the law…In light of Pereira and the various regulations and statutes at issue here, it may well be the case that deference is unwarranted.”

For those readers who are not immigration practitioners, attorneys with ICE (which is part of the Department of Homeland Security) and the Office of Immigration Litigation (“OIL”) (which is part of the Department of Justice, along with the BIA) have been filing briefs opposing motions to terminate under Pereira using language best described as snarky. A recent brief fled by OIL called the argument that proceedings commenced with a document lacking a time and date must be terminated under Pereira “an unnatural, distorted interpretation of the Supreme Court’s opinion,” and a “labored interpretation of Pereira.” A brief recently filed by ICE called the same argument an “overbroad and unsupported expansion of Pereira [which] is unwarranted and ignores the Court’s clear and unmistakable language.”

There is an old adage among lawyers that when the facts don’t favor your client, pound the law; when the law doesn’t favor your client, pound the facts; and when neither the law nor the facts favor your client, pound the table. I find the tone of the government’s briefs as sampled above to be the equivalent of pounding the table. The government is claiming that to interpret the Supreme Court’s language that “a notice that lacks a time and date is not a Notice to Appear” as meaning exactly what it says is an unnatural, distorted interpretation that is labored and ignores the clear language of the Court. The government then counters by claiming that the natural, obvious, clear interpretation is the exact opposite of what Pereira actually says.

So although it is just the view of one judge in one circuit in the context of a concurring opinion, it nevertheless feels very good to see a circuit court judge calling out the BIA, OIL, and DHS on their coordinated nonsense. Three U.S. district courts have already agreed with the private bar’s reading of Pereira, in U.S. v. Virgen Ponce (Eastern District of Washington); in U.S. v. Pedroza-Rocha (Western District of Texas); and just yesterday, in U.S. v. Soto-Mejia (D. Nev.). At this point, this is only cause for cautious optimism. But as an immigration lawyer named Aaron Chenault was articulately quoted as saying in the above Reuters article, for now, Pereira (and its proper interpretation by some judges) has provided “a brief glimmer of hope, like when you are almost drowning and you get one gasp.” Well said.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

REPRINTED WITH PERMISSION

JEFF CHASE

UNITED STATES OF AMERICA, Plaintiff,
v.
RAUL SOTO-MEJIA, Defendant.

Case No. 2:18-cr-00150-RFB-NJK

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

December 6, 2018

ORDER

        Before the Court is Mr. Soto-Mejia’s Motion to Dismiss [ECF No. 21] the Indictment in this case, for the reasons stated below the Court GRANTS the Motion to Dismiss.

        I. Factual Findings

        Based upon the record, including the joint stipulation of fact submitted by the parties [ECF No. 41], the Court makes the following factual findings. Mr. Soto-Mejia was encountered by immigration officials on February 7, 2018 in California. On that same day, February 7, the Department of Homeland Security issued a Notice to Appear for Removal Proceedings (NTA) against Soto-Mejia. The Notice to Appear stated that Soto-Mejia was to appear before an immigration judge on a date and time “[t]o be set” and at a place “[t]o be determined.” Soto-Mejia was personally served with the Notice to Appear at 10400 Rancho Road in Adelanto, California, 92401. The Notice to Appear contained allegations and provided a potential legal basis for Soto-Mejia’s removal from the United States. The Notice to Appear was filed with the Immigration Court in Adelanto, California on February 12, 2018.

        On February 27, 2018 an order advancing the removal hearing was served on a custodial officer for Soto-Mejia. On February 27, 2018, a letter entitled “Notice of Hearing in Removal Proceedings” addressed to Soto-Mejia at the Adelanto Detention Facility on 10250 Rancho Road

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in Adelanto, California, 92301 was served on a custodial officer for Soto-Mejia. The letter indicated that a hearing before Immigration Court was scheduled for March 7, 2018 at 1:00 p.m. The Notice of Hearing did not reference the nature or basis of the legal issues or charges for the removal proceedings. The Notice of Hearing also did not reference any particular Notice to Appear.

        On March 7, 2018, the “Order of the Immigration Judge” indicates that Soto-Mejia appeared at the Immigration Court hearing and that he was ordered removed from the United States to Mexico. Soto-Mejia was deported on March 8, 2018. Subsequently, Soto-Mejia was encountered in the United States again and was ordered removed on March 19, 2018. The March 19 Order, as a reinstate of the prior order, derived its authority to order removal from the March 7 Order. The Indictment in this case explicitly references and relies upon the March 7 and March 19 removal orders as a basis for establishing a violation of 8 U.S.C. § 1326 by Soto-Mejia.

        II. Legal Standard

        Since a prior order of removal is a predicate element of 8 U.S.C. § 1326, a defendant may collaterally attack the underlying removal order.United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). To prevail on such a collateral challenge to a deportation order, the individual must demonstrate that (1) he exhausted any administrative remedies he could have used to challenge the order (or is excused from such exhaustion); (2) the deportation proceedings deprived the individual of judicial review (or is excused from seeking judicial review); (3) the entry of the order was fundamentally unfair. 8 U.S.C. 1326(d); Ramos, 623 F.3d at 680.

        A removal order is “fundamentally unfair” if (1) an individual’s due process rights were violated by defects in the underlying proceeding, and (2) the individual suffered prejudice as a result. Ubaldo-Figueroa, 364 F.3d at 1048.

        III. Discussion

        The Defendant argues that this case must be dismissed because his criminal prosecution derives from a defective immigration proceeding in which the immigration court did not have

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jurisdiction to commence removal proceedings against him because the Notice to Appear initiating the proceeding was defective. He argues that the March 7 Order is thus void as the immigration court did not have jurisdiction to issue an order. He further argues that, as the initial March 7, 2018 deportation order is void, the subsequent reinstatement removal order of March 19, 2018 is also void as it derived its authority from the March 7 Order. Specifically, Soto-Mejia argues that the initial Notice to Appear that issued in his case did not include a time and location for the proceeding. Relying upon the United States Supreme Court’s recent decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018), Soto-Mejia argues that a notice to appear must contain a location and time for a removal hearing in order to create jurisdiction for the immigration court. Id. at 2110. As the Notice to Appear in this case did not contain such information, the immigration court, according to Soto-Mejia, did not have jurisdiction to issue a removal or deportation order.

        The government responds with several arguments. First, the government argues that Soto-Mejia waived his argument regarding jurisdiction—claiming that it is personal rather subject matter jurisdiction which is at issue—by not raising a jurisdictional objection in the immigration proceeding and conceding to the immigration court’s jurisdiction by appearing. Second, the government avers that the immigration court’s jurisdiction is determined by the federal regulations and that the Notice to Appear in this case contained the information it must pursuant to those regulations to vest the immigration court with jurisdiction. See 8 C.F.R. §§ 1003.14(a), 1003.15(b) and (c). Third, the government argues that the holding in Pereia is limited to the cases in which a court must determine the validity of a particular notice to appear as it relates to the triggering of the “stop-time rule.” Id. at 2116. Fourth, the government argues that there is no prejudice to Soto-Mejia as any defect was cured by the Notice of Hearing and Soto-Mejia’s participation in the removal proceedings. The Court rejects all of the government’s arguments.

        A. The Removal Orders of March 7 and March 19 Violated Due Process As the Immigration Court Lacked Subject Matter Jurisdiction

        The Court finds that Supreme Court’s holding in Pereira to be applicable and controlling in this case. First, the Court finds pursuant to the plain language of the regulations that the jurisdiction of the immigration court “vests” only “when a charging document is filed with the

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Immigration Court.” 8 C.F.R. §1003.14. A “Notice to Appear” is such a “charging document.” Id. at § 1003.13. Relying upon the reasoning of Pereira, this Court finds that the definition of a “Notice to Appear” is controlled by statute and not regulation, as the Supreme Court expressly rejected in Pereira the regulation-based interpretation by the Board of Immigration Appeals in Matter of Camarillo, 25 I. & N. Dec. 644 (2011). Pereira, 138 S. Ct. at 2111-14. And, pursuant to Pereira, a Notice to Appear must include the time and location for the hearing. Id. at 2114-17. As the Notice to Appear in this case failed to include the time and location for the hearing, the immigration court did not have jurisdiction to issue its March 7 deportation order.

        The Court rejects the government’s argument that Soto-Mejia waived his jurisdictional argument by not raising it earlier and by participating in the underlying immigration proceeding. The government’s argument conflates personal jurisdiction with subject matter jurisdiction. Soto-Mejia’s argument is founded upon his assertion that the immigration court lacked subject matter jurisdiction and not personal jurisdiction. Subject matter jurisdiction is a limitation on “federal power” that “cannot be waived” so “a party does not waive the requirement [of subject matter jurisdiction] by failing to challenge jurisdiction early in the proceedings.” Ins. Corp. of Ireland v. Compagnie des Bauxites, 456 U.S. 694, 702-03 (1982). Moreover, the plain language of the regulation establishing the immigration court’s jurisdiction explicitly notes that an immigration court’s authority only “vests” with the filing of a “charging document” and the regulation makes no reference to a waiver exception to this requirement for subject matter jurisdiction. 8 C.F.R. § 1003.14(a).

        The Court also rejects the government’s argument that the holding in Pereira is limited to cases determining the applicability of the stop-time rule. As noted, the Supreme Court’s holding in Pereira was based upon the plain language of the text of 8 C.F.R. §§ 1003.13 and 1003.14 and 8 U.S.C. § 1229(a). Pereira, 138 S. Ct. at 2111-13. Section 1003.13 specifies which documents can constitute a “charging document” for immigration proceedings after April 1, 1997. The parties all concede in this case that the only document in this record that is a “charging document” is the Notice to Appear. Id. The Court in Pereira explained that the text of Section 1229(a) lays out the statutory definition of and requirements for a “Notice to Appear” which includes the time and

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location for the hearing. 138 S. Ct. at 2114. The Supreme Court unambiguously proclaimed: “A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a ‘notice to appear under section 1229(a).“‘” Id. at 2113-14 (emphasis added). While the Supreme Court applied this definition to the determination of the applicability of the stop-time rule, the express language of this holding does not suggest any limitation on the Court’s definition of what is and is not a “Notice to Appear” under Section 1229(a) with respect to the requirement for the notice to contain a time and location.

        There is no basis to assume or conclude that the definition of a “Notice to Appear” under Section 1229(a) would be different without reference to the stop-time rule. That is because the fundamental question that the Supreme Court was answering in Pereira is whether a notice must contain the time and location of the hearing to be a “notice to appear” under Section 1229(a). 138 S. Ct. at 2113-17. In answering this foundational question, the Court did not rely upon the stop-time rule to determine the definition of a notice to appear under Section 1229(a). To the contrary, the Court spent considerable time explaining why consideration of the stop-time rule’s “broad reference” to all of the paragraphs of Section 1229(a) did not alter the fact that the essential definition of and requirements for the notice arise in the first paragraph. 138 S. Ct. at 2114 (noting that the “broad reference to §1229(a) is of no consequence, because as even the Government concedes, only paragraph (1) bears on the meaning of a ‘notice to appear'”). This first paragraph requires that the notice contain the time and location for the removal proceeding.

        The Court is also unpersuaded that a defect in a “Notice to Appear” can be ‘cured’ as the government suggests by the filing and/or serving of the Notice of Hearing on Soto-Mejia. That is because such an argument is contrary to the plain text of the regulation, Section 1003.14(a), which unequivocally states that an immigration court’s jurisdiction only “vests” or arises with the filing of a “charging document.” A Notice of Hearing is not one of the “charging documents” referenced in Section 1003.13. A Notice of Hearing cannot therefore commence an immigration proceeding by subsequently providing a time and location for a removal hearing. Consequently, if the immigration court’s jurisdiction never arose because the Notice to Appear was invalid, then there is no proceeding in which a Notice of Hearing could properly be filed. There is nothing to cure.

Page 6

        Moreover, the Court also finds that the Notice of Hearing in this case did not reference a specific Notice to Appear. Indeed, the government conceded and the Court finds that the Notice of Hearing form does not generally, or in this case, reference a prior specific Notice to Appear and it does not contain information about the legal issues or charges which serve as a basis for the removal proceedings. The two documents only common identifying information is the A-file number of the particular person—Soto-Mejia in this case. This means that if an individual had multiple potential charges or legal issues related to his immigration status, the Notice of Hearing could not inform him about which charges were at issue in the upcoming hearing and the Notice of Hearing could be filed months or years after the Notice to Appear. Indeed, this is the very reason that the Supreme Court in Pereira rejected the argument that the “Notice to Appear” did not have to include the time and location of the removal proceeding, because that would defeat the ultimate objective of requiring notice—allowing the person to prepare for the hearing and potentially consult with counsel. 138 S. Ct. at 2114-15. As the Court noted, if there was no requirement for this information “the [g]overnment could serve a document labeled ‘notice to appear’ without listing the time and location of the hearing and then, years down the line, provide that information a day before the removal hearing when it becomes available.” Id. at 2115. Under such an interpretation “a noncitizen theoretically would have had the ‘opportunity to secure counsel,’ but that opportunity will not be meaningful” as the person would not truly have the opportunity to consult with counsel and prepare for the proceeding.” Id. As a Notice of Hearing, like the one here, is not explicitly connected to a particular Notice to Appear and the associated charges, the Court finds that it cannot serve to ‘cure’ a defective Notice to Appear such as in this case.

        B. The Defendant Suffered Prejudice¹

        The Court further finds that the Soto-Mejia suffered prejudice as a result of the defect in the underlying proceeding. Specifically, he was subjected to removal twice based upon the initial

Page 7

March 7 Order which the immigration court did not have jurisdiction to issue. The government’s argument that Soto-Mejia was not prejudiced because he “participated” in the removal proceedings misses the point. It is immaterial if he participated in the proceedings. He suffered prejudice by the issuance of the deportation orders because the immigration court lacked jurisdiction to order his removal on March 7, 2018.

        IV. Conclusion

        For the reasons stated, the Court finds that the March 7 and March 19 deportation orders are void due to the immigration court’s lack of jurisdiction. As these orders are void, the Court finds that the government cannot establish a predicate element—the prior removal or deportation of Soto-Mejia—of the sole offense in the Indictment. The Indictment in this case must therefore be dismissed.

        Accordingly,

        IT IS HEREBY ORDERED that the Motion to Dismiss is GRANTED. The Indictment in this case is DISMISSED. The Clerk of Court shall close this case.

        IT IS FURTHER ORDERED that, as this Court has no authority to detain Defendant Soto-Mejia pursuant to this case, he is ORDERED IMMEDIATELY RELEASED.

        DATED this 6th day of December, 2018.

        /s/_________

        UNITED STATES DISTRICT JUDGE

——–

Footnotes:

        ^1. The Court finds that Soto-Mejia is not required to have exhausted any possible administrative remedies, because (a) the Supreme Court decision in Pereira issued after his March 7, 2018 proceeding and (b) defects as to subject matter jurisdiction may be raised at any time. Compagnie des Bauxites, 456 U.S. at 702-03.

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

Unlike the BIA’s convoluted reasoning in Matter of Bemudez-Cota, 27 I&N Dec. 441 (BIA 2018), Judge Boulware’s analysis is very straightforward and complies with both the statutory language and the Supreme Court decision. What’s not to like about that?

As I’ve pointed out before, Sessions was so busy artificially “jacking up” the backlog and intimidating the Immigration Judges working for him that he never bothered to address the many solvable legal and administrative problems facing the Immigration Courts. That could mean not only more failed criminal prosecutions, but perhaps more significantly, could invalidate the vast majority of the 1.1 million case backlog that Sessions artificially increased with his short-sighted, racially motivated “gonzo” polices and interpretations.

And Whitaker is following in his footsteps by taking issues off the “restrictionist checklist” for screwing asylum seekers and migrants, rather than addressing the real legal and administrative deficiencies that make the Immigration Court a parody of justice in America.

Sadly, I wouldn’t expect any improvement under Barr, whose recent totally revolting “paean to Jeff Sessions” (co-authored with former GOP AGs Meese & Mukasey) projects that until we get “regime change,” justice in America will continue to be reserved for well-to-do straight evangelical White men. https://www.washingtonpost.com/opinions/jeff-sessions-can-look-back-on-a-job-well-done/2018/11/07/527e5830-e2cf-11e8-8f5f-a55347f48762_story.html?utm_term=.aaad2f8e6250

People of color and other vulnerable minorities should continue to beware of the “Department of Injustice.”

Here’s a very compelling article by ACLU Legal Director David Cole on why Bill Barr is likely to be a “Button Down Corporate Version of Jeff Sessions.” https://www.aclu.org/blog/criminal-law-reform/no-relief-william-barr-bad-jeff-sessions-if-not-worse

Darn, perhaps carried away with all the tributes to Bush I, I had hoped for a conservative, law enforcement oriented, but non-racist, non-White-Nationalist approach to immigration. Something like firm, but fair, unbiased, professional, and rationally managed. Guess that just isn’t going to happen under a GOP that has made racist appeals, xenophobia, false narratives, and anti-democracy part of its official agenda. I have a tendency to give everyone the “benefit of the doubt” at least until proven otherwise. I guess I have to alter that when dealing with anyone associated with today’s GOP.

That’s why the New Due Process Army must continue to be America’s bastion against the forces of darkness that threaten us all.

PWS

12-10-18

SPLIT 9TH BLOCKS SCOFFLAW ADMINISTRATION’S ATTEMPT TO THWART ASYLUM LAWS! — Trump’s Latest White Nationalist Attack On American Institutions & Values Might Be On Life Support As Leading Conservative Judge Bybee “Just Says No!” — East Bay Sanctuary Covenant v. Trump

18-17274

East Bay Sanctuary Covenant v. Trump, 9th Cir.,12-07-18

PANEL: LEAVY, BYBEE, and HURWITZ, Circuit Judges

OPINION BY: Judge Bybee

DISSENT: Judge Leavy

KEY QUOTE FROM JUDGE BYBEE’S MAJORITY:

The Government asserts that the TRO “constitutes a major and ‘unwarranted judicial interference in the conduct of foreign policy’” and “undermines the separation of powers by blocking the Executive Branch’s lawful use of its authority.” But if there is a separation-of-powers concern here, it is between the President and Congress, a boundary that we are sometimes called upon to enforce.See, e.g., Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (2012); INS v.

50

Chadha, 462 U.S. 919 (1983). Here, the Executive has attempted an end-run around Congress. The President’s Proclamation by itself is a precatory act.14 The entry it “suspends” has long been suspended: Congress criminalized crossing the Mexican border at any place other than a port of entry over 60 years ago. See Pub. L. No. 82-414, 66 Stat. 163-229 (codified as amended at 8 U.S.C. § 1325). The Proclamation attempts to accomplish one thing. In combination with the Rule, it does indirectly what the Executive cannot do directly: amend the INA. Just as we may not, as we are often reminded, “legislate from the bench,” neither may the Executive legislate from the Oval Office.

This separation-of-powers principle hardly needs repeating. “The power of executing the laws . . . does not include a power to revise clear statutory terms that turn out not to work in practice,” and it is thus a “core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.” Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2446 (2014). Where “Congress itself has significantly limited executive discretion by establishing a detailed scheme that the Executive must follow in [dealing with] aliens,” the Attorney General may not abandon that scheme because he thinks it is not working well—at least not in the way in which the Executive attempts to do here. Jama v. Immigration & Customs Enf’t, 543 U.S. 335, 368 (2005). There surely are enforcement measures that the President and the Attorney General can take to ameliorate the crisis, but continued inaction by Congress is not a sufficient basis under our Constitution for the Executive to rewrite our immigration laws.

We are acutely aware of the crisis in the enforcement of our immigration laws. The burden of dealing with these issues has fallen disproportionately on the courts of our circuit. And as much as we might be tempted to revise the law as we think wise, revision of the laws is left with the branch that enacted the laws in the first place—Congress.

KEY QUOTE FROM JUDGE LEAVY’S DISSENT:

I dissent from the majority’s conclusion that the Rule was not exempt from the standard notice-and-comment procedures. The Attorney General articulated a need to act immediately in the interests of safety of both law enforcement and aliens, and the Rule involves actions of aliens at the southern border undermining particularized determinations of the President judged as required by the national interest, relations with Mexico, and the President’s foreign policy.

I dissent from the denial of the motion to stay because the President, Attorney General, and Secretary of Homeland Security have adopted legal methods to cope with the current problems rampant at the southern border.

The question whether the Rule is consistent with 8 U.S.C. § 1158 goes to the consideration of likelihood of success on the merits. The majority errs by treating the grant or denial of eligibility for asylum as equivalent to a bar to application for asylum, and conflating these two separate statutory directives.

An alien does not obtain the right to apply for asylum because he entered

illegally. The reason “any alien” has the right to apply, according to the statute, is because he is physically present in the United States or has arrived in the United States. The parenthetical in 8 U.S.C. § 1158(a)(1) (“whether or not at a designated port of arrival”),which the majority chooses to italicize, does not expand upon who is eligible to apply beyond the words of the statute, “any alien.”

The majority concludes that the Rule conditioning eligibility for asylum is the equivalent to a rule barring application for asylum. But the statute does not say that, nor does the Rule. I would stick to the words of the statute rather than discerning meaning beyond the words of the statute and Rule in order to find the action of the Attorney General and Secretary “not in accordance with the law.” 5 U.S.C. § 706(2)(A).

Congress placed authorization to apply for asylum in one section of the statute, 8 U.S.C. § 1158(a)(1). Congress then placed the exceptions to the authorization to apply in another section, 8 U.S.C. § 1158(a)(2). Congress placed the eligibility for asylum in a different subsection, 8 U.S.C. § 1158(b)(1), and disqualifications for eligibility in 8 U.S.C, § 1158(b)(2)(A)(i)-(vi). The Attorney General or the Secretary of Homeland Security has no authority to grant asylum to the categories of aliens enumerated in § 1158(b)(2)(A). Congress has decided that the right to apply for asylum does not assure any alien that something other than a

2

categorical denial of asylum is inevitable. Congress has instructed, by the structure and language of the statute, that there is nothing inconsistent in allowing an application for asylum and categorically denying any possibility of being granted asylum on that application. Thus, Congress has instructed that felons and terrorists have a right to apply for asylum, notwithstanding a categorical denial of eligibility.

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

Judge Leavy’s dissent seems pretty absurdist to me. There is no parallel between “felons and terrorists” and others who might enter illegally. To state the obvious, most terrorists and felons would be ineligible for “refugee status” under the U.N. Convention. Those whose only offense was illegal entry would not.

There’s a little glimmer of hope for the Administration scofflaws. They finally got a dissenting Article III Judge to bite on their bogus legal arguments for rewriting asylum law.

The bad news: The majority opinion upholding the TRO against the asylum scam was written by erstwhile conservative Judge Jay Bybee. Bybee is so far to the right that he had trouble getting confirmed because of his participation in the Bush II era torture scandals at the DOJ. He also voted in favor of the Trumpsters on the “Travel Ban” case. So, when you lose a case with a 9^thCircuit panel of two “GOP conservative” judges and only one “Democratic appointment” you know you’re in trouble (even if you subscribe to Trump’s semi-myth that judges are identified for life by the party that appointed them).

But wait, there’s more. Judge Bybee is not only a “strict constructionist,” but has also been a strong critic of Trump’s “dissing” of the integrity of Federal Judges. That puts him on exactly the same wavelength as conservative Chief Justice John Roberts. Plus, for the reasons he set forth in this opinion, those conservative Justices who are “strict constructionist defenders of separation of powers” might be reluctamnt to “bite” on the Administration’s rewrite of specific Congressional direction in asylum statutes.

Additionally, Judge Bybee pointed out that the record before Judge Tigar still needs more development. For lots of reasons, it’s looking like the Supremes might be unwilling to intervene to bail Trump out of his self-created mess at the preliminary stage.

It’s also pretty evident at this point that the “asylum crisis” is bogus; if there is any crisis it is self-created by the Trumpsters White Nationalist xenophobia. That’s going to come out in any historical analysis, thus making any Justice voting for Trump’s position look about the same as those who voted to uphold American-Japanese internment in World War II. In other words, it will be a cowardly and disgraceful legacy. While Trump is too ignorant to look at life in historical terms, Chief Justice Roberts (who holds the balance of power these days) clearly cares about how history will judge him and “his” Court.

I could be wrong, but if I were a Trumpster, I’d be concerned about the future of the racist-restrictionist immigration agenda. It’s going nowhere in Congress and at least some of the “bureaucratic end runs” are running into problems with the Article IIIs. That’s not to minimize the short and long term damage he’s doing to America with his abuse of the bureaucratic processes. Whether we can recover, remains to be seen.

PWS

12-08-18

DEATH THREATS ARE A WELL-ESTABLISHED FORM OF PERSECUTION, EXCEPT @ THE BIA — 4th Cir. Tells BIA To Follow Precedent — Tairou v. Whitaker

TAIROU-4TH-DEATH THREATS

Tairou v. Whitaker, 4th Cir., 11-30-18

PANEL: GREGORY, Chief Judge, MOTZ, Circuit Judge, and William L. OSTEEN, Jr., United States District Judge for the Middle District of North Carolina, sitting by designation.

OPINION BY: CHIEF JUDGE GREGORY

KEY QUOTE:

Mocktar Tairou (“Tairou”) petitions this Court to review a final removal order by the Board of Immigration Appeals (“BIA”) denying his asylum and withholding of removal application and ordering his removal to Benin. Tairou contends that the BIA erred in finding that he was not subjected to past persecution and that he lacked a well- founded fear of persecution were he to return to Benin. Our binding precedent explicitly holds that a threat of death constitutes persecution. Because Tairou experienced multiple death threats in Benin, we hold Tairou established that he was subjected to past persecution. We therefore grant the petition for review and remand to allow the BIA to consider whether, in light of Tairou’s demonstrated past persecution, he has a well- founded fear of future persecution.

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

As I’ve pointed out before, beneath the hoopla and commotion caused by the direct assault on Due Process in Immigration Court conducted by the Trump Administration and Jeff Sessions, there is a deeper much more fundamental lingering problem. The BIA, a supposedly “expert tribunal,” consistently errors in the application of some of the most basic precepts of immigration law, particularly when it comes to recognizing and protecting the rights of asylum seekers.

Also, even without a finding of past persecution, the threats shown in this case clearly should have been more than enough to show a “reasonable likelihood” (10% chance) of future persecution that fulfills the (supposedly) generous “well founded fear” standard for asylum enunciated by the Supremes in INS v. Cardoza-Fonseca and endorsed by the BIA in Matter of Mogharrabi.

In other words, the BIA’s analysis in this case contravenes what we used to teach in basic training of Immigration Judges and Judicial Law Clerks and would have earned a student “minimal credit” on my “Refugee Law and Policy” final exam at Georgetown Law. This clearly is a system where quality and fairness are not only “Not Job 1” but aren’t even on the charts! Astoundingly, we have Appellate Judges serving on the “highest immigration tribunal” who are less competent and knowledgeable than most second year law students!

Even before Sessions, many asylum seekers were wrongfully denied by intentionally skewed interpretations and careless work by a tribunal that had long ago lost sight of its supposed vision of “being the world’s best administrative tribunal, guaranteeing fairness and due process for all.” Folks with good lawyers, the wherewithal to appeal, and the luck of the “right panel in the right circuit” might eventually obtain justice. Others had their lives ruined or even ended by a system operating in contravention of normal judicial precepts and Constitutional Due Process. Sessions “doubled down” on bias and “worst practices.”

How many must suffer and die before this system is brought into even minimal compliance with our laws, international conventions, and Constitution (let alone fulfilling its now mocked promise of becoming the “world’s best administrative tribunal guaranteeing fairness and Due Process for all”)?

Shame on those in Congress, the Executive Branch, and the Article III Judiciary who have either promoted or enabled this travesty of justice. And, shame on America for not holding all of these public officials accountable.

Join the New Due Process Army and fight to force all public officials to live up to their oaths of office!

PWS

12=07-18

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