😇 OBIT: LEON WILDES, 90, LEGENDARY IMMIGRATION LAWYER & EDUCATOR — A Fond Remembrance & Appreciation From Careen Shannon! 🗽

 

Careen writes on her blog:

https://lnkd.in/gRRXvq5p

One day in 2003, I got a call from an acquaintance — the mother of one of my daughter’s middle school classmates — who happened to be the Vice Dean of Cardozo Law School, part of Yeshiva University in New York City. She knew that I was a practicing immigration lawyer with a major immigration law firm, so she was wondering: would I be interested in teaching a course in Immigration Law at Cardozo?

It turned out that Leon Wildes, founder of the esteemed immigration law firm Wildes & Weinberg, PC, and most famous for his representation of John Lennon, had been teaching Immigration Law at Cardozo for many years. But at the age of 70, he was ready to slow down a bit, and teach only one semester per year instead of two semesters. I was asked if I would be willing to teach the class during the spring semester. Leon would continue to teach the fall semester course, as well as oversee an externship program through which he placed students for a semester with nonprofit legal services organizations representing immigrant clients.

I eagerly said yes, and was given the freedom to design my own syllabus and curriculum. I taught the basic doctrinal course in Immigration Law at Cardozo from 2004 through 2011. Then Leon decided to step down from teaching completely. His son, Michael Wildes, an esteemed immigration attorney in his own right, took over the class, and I segued into running the externship program, which I turned into a full-fledged field clinic with a weekly seminar where we did case rounds and focused on different substantive topics each week — both legal topics such as deportation or different visa types, and practice-oriented issues such as how to interview clients who have suffered severe trauma. I continued to run the Immigration Law Field Clinic at Cardozo Law School until 2015.

Now Leon Wildes has passed on, at the age of 90. He leaves behind an incredible legacy as one of the grand old men of the immigration bar. And that story about John Lennon? It’s worth reading.

Leon WIldes, John Lennon, Yoko

Photo from the Wildes & Weinberg, PC website.

Because of Lennon’s affiliation with the Left and his ability to rally young people (during the first presidential election when 18- to 20-year-olds could vote), Richard Nixon considered Lennon to be a threat to his reelection in 1972 and wanted him deported. In defending Lennon against deportation, Leon Wildes — who was so conventional that he purportedly didn’t even know who John Lennon was before he took him on as a client — managed to uncover the then-secret practice (then called the “non-priority program”) within the then-Immigration and Naturalization Service (INS) of exercising prosecutorial discretion not to deport certain otherwise deportable individuals.

Wildes’ advocacy led John Lennon and Yoko Ono to succeed in their fight against deportation and enabled them to obtain permanent residence. Moreover, Wildes’ unmasking of the INS’s ability to exercise prosecutorial discretion paved the way for the Obama Administration to later create a policy allowing young people brought to the United States as children — the so-called “Dreamers” — to remain in the United States under the Deferred Action for Childhood Arrivals (DACA) program.

Read the story of Leon Wildes’ representation of John Lennon in his first-person account, “Not Just Any Immigration Case,” reprinted on the Wildes & Weinberg website from the Benjamin N. Cardozo School of Law Alumni Review.

RIP Leon Wildes. May his memory be a blessing

Careen Shannon
Senior Counsel (formerly Partner) Fragomen, Del Rey, Bernsen & Loewy, LLP Executive Producer
“Las Abogadas: Attorneys on the Front Lines of the Migrant Crisis.”
Photo: Think Immigration

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

Thanks, Careen! Lot’s of “good historical stuff” on the Lennon case on the Wildes & Weinberg PC website: https://www.wildeslaw.com/

I drafted the BIA decision in Lennon that was reversed by the late Chief Judge Irving Kaufman and the 2d Circuit. Leon argued the case before the BIA. 

Another legend, the late Vinnie Schiano (who, according to my Round Table colleague and immigration historian Hon. “Sir Jeffrey” Chase, claimed to have been a co-inventor of the “Master Calendar”) argued for the “Legacy” INS.  At that time, the BIA counted immigration “gurus” Chairman Maury Roberts and Louisa Wilson among its five members. 

I ran into Leon at a number of AILA functions over the years. I think he was friendly with Maury Roberts and the late Sam Bernsen, two of my “mentors.” 

Leon was a gentleman, scholar, and educator, widely respected by those in Government and private practice. 

May he rest in peace after a life well-lived!

🇺🇸 Due Process Forever!

PWS

01-09-24

🏴‍☠️🤯👎🏽 CRUMBLING INSTITUTIONS: OF COURSE THE OUT OF TOUCH, POLITICIZED SUPREMES’ GOP MAJORITY IS SHEDDING LEGITIMACY AS THEY IMPLEMENT AN EXTREME FAR-RIGHT POLITICAL AGENDA WITHOUT LEGAL BASIS! — C.J. Roberts’s Incredibly Lame Claim Otherwise Proves It!

John Roberts
His defense of the indefensible went over like a lead balloon with those whose lives have been upended by the radical right Justices’ political agenda!

Every time a GOP politico or media sycophant preferences remarks with “I’m not a racist,” you know that some outrageous racist statement is about to follow. What they are doing is dishonestly attempting to preemptively “shift the blame and focus” to those who call out their vile, dishonest conduct!

Over the weekend, Chief Justice John Roberts, drifted down a similar discredited path of disingenuous “preemptive denial.” In a ludicrously tone deaf statement that echoed Tricky Dick’s “I’m not a crook” speech, Roberts lamely attempted to defend the legitimacy of his Court’s stripping of fundamental human rights from women. In doing so, he basically reinforced critics’ points about the Court’s illegitimate, extralegal, right-wing, political war on individual and human rights with a good bit of misogyny thrown in!

Richard Nixon
Nixon’s “I’m not a crook speech” convinced many that he was, indeed, a crook. Roberts’s “My Court isn’t illegitimate just because it advances a far-right political agenda speech” is heading in the same direction!
PHOTO: Twitter

Never mind that the Court basically aligned itself with authoritarian theocrats promoting “forced birth” and overt subjugation of a woman’s fundamental right to decide whether or not to reproduce. Indeed, advancing that minority political agenda was the fundamental reason why Roberts and his GOP crew are on the Court in the first place! To pretend otherwise is off the wall!

There are some strong moral, societal, economic, and  medical arguments to be made about why women should or should not choose to have children. Under the First Amendment, both those who favor abortion and those who oppose it have always been free to argue their points. 

But, the idea that these choices should be removed from those directly concerned and placed in the hands of political and religious authorities is preposterous. Lacking convincing arguments to persuade all women facing that choice to their side, the far right theocracy did a preemptive strike! And, their “wholly-owned Justices” went along!

Needless to say, Roberts’s insultingly disingenuous defense of the indefensible did not fare well with informed critics. 

Former Sen. Claire McCaskill, now an MSNBC analyist, On Meet the Press:

On Sunday, McCaskill – an MSNBC political analyst – tore into Roberts for taking the country backward and recalled that the jurists who signed onto Alito’s originalist rationalization misled the public during their respective Senate confirmation hearings.

“He’s so so out of touch. I mean really, this interview shows why the numbers for the Supreme Court are so bad. For him to say something like that, he just doesn’t get it. You don’t take away a right that’s been around for 50 years and you don’t have a party go to extremes of trying to make sure rape victims have to have forced birth,” McCaskill said.

“You don’t do that and not have it splash back on the Supreme Court,” she continued. “And they all said they respected precedent when they were confirmed. I heard them. America heard them. Clearly, they didn’t, and you can feel me getting angry at John Roberts right now because he knows better when he says that stuff.”

Professor (and former prosecutor) Joyce White Vance, Professor Leah Litman, Professor Stephen I. Vladeck, Political Scientist Norman Ornstein:

https://www.alternet.org/2022/09/claire-mccaskill-john-roberts-roe/

“Roberts’s failure to understand why the court has lost credibility with so many Americans smacks of ‘Let them eat cake,’ ” Joyce White Vance, a former prosecutor and a distinguished professor of the practice of law at the University of Alabama law school, told me. “The Supreme Court has a proud history of defending our rights, not taking them away. The Roberts court will go down in history as the first one” to strip away people’s rights.

University of Michigan law professor Leah Litman said: “I would be embarrassed to say something that naive and divorced from reality if I had said it as a first-year law student. For the chief justice to say it is just an insult to the intellect of everyone who knows anything about the court, American democracy and politics.”

. . .

If Roberts and the conservative bloc were to engage in just a tiny amount of self-reflection, they would understand that their own actions have brought them to this point. Law professor Stephen I. Vladeck, of the University of Texas school of law, asked me rhetorically: “If the court’s legitimacy doesn’t come from public acceptance of the principled nature of its decision-making, where does it come from?”

While Roberts might not have written the most egregious opinions, he has joined in them, from the abortion ruling in Dobbs, to the prayer-in-schools ruling in Bremerton, to a Brnovich decision on voting rights, written by Alito, that “blatantly ignored the plain language of the law and rewrote it to fit his partisan and ideological views,” as political scientist Norman Ornstein told me. Moreover, Ornstein said, it is Roberts who has “ignored Clarence Thomas’s blatant conflicts of interest and continues to oppose applying the judicial code of ethics to the Supreme Court, even as its credibility plummets.”

He concluded: “John G. Roberts Jr. is far from the worst justice undermining the fundamental legitimacy of the court, but he is surely culpable.”

https://www.washingtonpost.com/opinions/2022/09/12/roberts-criticism-supreme-court-whining/

Jennifer Rubin, WashPost opinion writer:

The court has failed to regulate itself and instead has abused its power. None of the six right-wing justices acknowledge, nor do they signal they want to halt, the conduct that has lost the public’s confidence.

So it’s up to Congress and the president to shore up the court’s credibility. Allocating more seats to correct the damage done by Sen. Mitch McConnell’s court-packing, imposing term limits on all justices and enacting a mandatory code of ethics would be good places to start.

https://www.washingtonpost.com/opinions/2022/09/12/roberts-criticism-supreme-court-whining/

Eric Lutz in Vanity Fair:

But it’s not just the outcome, which decimated a right Americans had held for five decades and put a variety of other privacy rights in jeopardy. It’s the way that decision — and others on guns, climate change, and religion — recently came to pass.

https://www.vanityfair.com/news/2022/09/john-roberts-defends-supreme-court-against-legitimacy-questions

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

In this case, Roberts would have done better to confine himself to “calling balls and strikes.” Sadly, he and his GOP colleagues have gotten out from behind the plate and taken the field in their “Federalist Society” uniforms. He’s going to have to learn to live with objections and catcalls from those in the stands who see what’s really going on here and are understandably upset about the Court’s overreach, substandard legal performance, lack of accountability, absence of self-awareness, and, yes, lack of legitimacy.

Better judges for a better, fairer America — from the Immigration Courts to the Supremes! 

By the way, we can’t change the Supremes overnight. But, Biden, Harris, & Garland COULD have reformed, repaired, and legitimized the Immigration Courts, including the BIA, that they control. That they have failed to do so is the biggest “unforced error” of the Biden Administration — one that will haunt Democrats and Americans for ages! 

Every day Garland’s parody of a court system, still largely bearing the unmistakable stamp of White Nationalists Sessions, Barr and Miller, continues to run roughshod over individual rights, often in life or death cases, while degrading the judicial process. Misogyny and racism are also on full display, as a disproportionate brunt of their unprofessional, wrong-headed, result-oriented “any reason to deny” decision-making falls on refugee women of color (and often on their accompanying children).

There is a very direct connection between “DHS agents in robes” in our Immigration Courts and “right-wing politicos in robes” at the Supremes. Part of the idea is to “normalize” injustice directed at “the other” — just so long as YOUR life isn’t directly affected, who cares? It’s also known as “Dred Scottification.”  It’s the “polar opposite” of Dr. Martin Luther King’s observation that “injustice anywhere is a threat to  justice everywhere.” If Dems don’t “connect the dots,” they might not be able to save our democracy!

🇺🇸 Due Process Forever!

PWS

09-12-22.

COURTSIDE HISTORY: WHO KNEW? — NDPA Maven Deb Sanders’s Late Father, Donald G. Sanders, Was A Watergate Hero!🦸🏻‍♂️

 

From NY Times, 09-29-1999:

https://www.nytimes.com/1999/09/29/us/donald-g-sanders-dies-at-69-brought-nixon-taping-to-light.html

  • Give this article

By William H. Honan

  • Sept. 29, 1999

Donald G. Sanders, a former Senate lawyer who uncovered the White House tapes that led to President Richard M. Nixon’s resignation, died on Sunday at a hospital in Columbia, Mo. He was 69.

Mr. Sanders, who lived in Columbia, died of cancer, said his wife, Dolores.

A former F.B.I. agent, Mr. Sanders was a Republican staff lawyer for the Senate committee investigating the Watergate break-in when he brought to light ”the smoking gun” that eventually pointed to Nixon’s complicity in a cover-up of the break-in.

It was in a closed-door preliminary interrogation that Mr. Sanders’s curiosity was aroused by seemingly apprehensive answers from Alexander P. Butterfield, Nixon’s former appointments secretary.

Mr. Sanders dug deeper and asked if it were possible that some sort of recording system had been used in the White House.

Mr. Butterfield answered, ”I wish you hadn’t asked that question, but, yes, there is.”

Mr. Sanders then hurried to tell Fred D. Thompson, the lead minority counsel who is now a Republican senator from Tennessee.

”We both knew then it was important,” Mr. Sanders recalled in a 1997 interview.

Then, in nationally televised hearings, Mr. Thompson asked Mr. Butterfield about the recording system.

”It was actually Don who discovered the existence of the White House taping system, but he was too unassuming to ever mention it,” Mr. Thompson said on Monday in an interview with The Associated Press.

Mr. Sanders had returned to his home state in the 1980’s after more than two decades of Federal Government service as a lawyer for Congressional committees, an F.B.I. agent and an Assistant Secretary of Defense under President Gerald R. Ford.

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Donald Gilbert Sanders was born on April 26, 1930, in St. Louis. He graduated from the law school of the University of Missouri and then spent two years in the Marines. From 1956 to 1959, he was city attorney for Columbia.

From 1959 to 1969, Mr. Sanders worked for the F.B.I.

In 1969, he started working as a lawyer for Congressional committees.

After returning to Missouri, Mr. Sanders served as a commissioner in Boone County in 1989 and 1990, but he did not seek re-election. He had a private law practice in Columbia until his death.

In 1997, Mr. Sanders, while battling cancer, tried to start a national campaign to draft Senator Thompson for the 2000 Republican Presidential nomination, but Mr. Thompson declined to enter the race.

In addition to his wife, Mr. Sanders is survived by two sons, Michael, of Dallas, and Matthew, of Monrovia, Calif.; a daughter, Deborah Sanders, of Arlington, Va., and his mother, Ann Sanders of Columbia.

A version of this article appears in print on Sept. 29, 1999, Section A, Page 25 of the National edition with the headline: Donald G. Sanders Dies at 69; Brought Nixon Taping to Light. Order Reprints | Today’s Paper | Subscribe

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

Well, my friend Deb knew, of course!

What an important role! And, one that is antithetical to most of today’s GOP, with a few exceptions. It’s an interesting (discouraging) contrast with the total lack of integrity among most GOP politicos and “parallel universe” supporters whose corrupt willingness to face truth about Trump’s criminal conspiracy to overthrow our Constitution and our duly elected Government still threatens our American democracy!

🇺🇸Due Process Forever!

PWS

06-21-22

THE GIBSON REPORT — 09-15-20 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

THE GIBSON REPORT — 09-15-20 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

COVID-19

Note: Policies are rapidly changing, so please verify the latest information on the relevant government websites and with colleagues on listservs as best you can.

 

New

 

Closures

 

Guidance:

 

TOP NEWS

 

Panel Tosses Nationwide Freeze on Trump’s Public Charge Rule

Bloomberg: A nationwide injunction blocking a Trump administration rule that denies legal status to immigrants receiving public assistance was stayed by a Second Circuit panel. The Southern District of New York…likely lacked jurisdiction to enter the injunction while the appeal of its previously-issued injunction was pending, the U.S. Court of Appeals for the Second Circuit said Sept. 11.

 

USCIS Wants Sponsors To Repay Gov’t For Benefits

Law360: U.S. Citizenship and Immigration Services on Thursday announced an initiative to hold immigrant sponsors legally responsible for reimbursing the government for benefits used by their immigrant sponsees.

 

US seeks sweeping DNA collection of immigrants, sponsors

AlJazeera: Its proposal also vastly expands the biological information that the Department of Homeland Security (DHS) collects beyond genetic material to include eye scans, voiceprints, and palm prints, the department’s US Citizenship and Immigration Services said in a notice published in the Federal Register.

 

After a Pandemic Pause, ICE Resumes Deportation Arrests

NYT: Since mid-July, immigration agents have taken more than 2,000 people into custody from their homes, workplaces and other sites, including a post office, often after staking them out for days.

 

The Life and Death of Administrative Closure

TRAC: TRAC’s detailed analysis of the court records on administrative closure yields four key findings. First, administrative closure has been routinely used by Immigration Judges to manage their growing caseloads as well as manage the unresolved overlapping of jurisdictions between the EOIR and other immigration agencies. Second, TRAC finds that far from contributing to the backlog, administrative closure has helped reduce the backlog. Third, data from the Immigration Courts show that immigrants who obtain administrative closure are likely to have followed legal requirements and obtain lawful status. Fourth, the EOIR significantly misrepresented the data it used to justify this rule.

 

Immigration to New York City Declines, Amplifying Economic Concerns

WSJ: Immigration to New York City dropped 45% between 2016 and 2019, with about 34,000 immigrants moving to the city last year compared with 62,000 in 2016, according to an analysis of U.S. Census Bureau population estimates by William Frey, senior fellow at the Brookings Institution. City officials and immigration advocates say tighter federal immigration policies and delays in processing visa applications during the pandemic ave reduced the flow of transplants.

 

US revokes visas for 1,000 Chinese students deemed security risk

BBC: The move follows a proclamation by President Donald Trump in May aimed at Chinese nationals suspected of having ties to the military. He said some had stolen data and intellectual property. China has accused the US of racial discrimination. Nearly 370,000 students from China enrolled at US universities in 2018-19.

 

Americans are renouncing U.S. citizenship in record numbers – but maybe not for the reasons you think

The Conversation: In surveys and testimonials, these people say they’re dropping their U.S. citizenship because American anti-money laundering and counter-terrorism regulations make it too onerous and expensive to keep.

 

DHS Whistleblower Complaint Includes Surprising Insights on Immigration Policy

ImmProf: Mr. Murphy believes former DHS head Kirtjen Nielsen presented Congress with “knowing and deliberate submission of false material information” about the number of [known or suspected terrorists] crossing the southern border.

 

Immigration agency cuts of 800 Kansas City jobs expected to trigger backlogs, delays nationwide

Kansas Reflector: Members of Congress from the Kansas City region scored a victory last month when a federal immigration agency backed off plans that would have led to thousands of layoffs of government employees in the metro area. But their relief was short lived, as the agency now intends to furlough 800 of its local private contractors instead — a move expected to set off immigration backlogs and processing delays throughout the nation.

 

Trump administration considers postponing refugee admissions, U.S. official says

Reuters: The refugee cap was cut to 18,000 this year, the lowest level since the modern-day program began in 1980. So far, roughly half that many refugees have been let in as increased vetting and the coronavirus pandemic have slowed arrivals.

 

LITIGATION/CASELAW/RULES/MEMOS

 

Federal court blocks Trump plan to exclude undocumented immigrants from census count used to allocate seats in Congress

CNN: The court ruled Thursday that the President’s July order violates the federal laws that set out how congressional seats are apportioned, and granted a permanent injunction blocking the rule. The court did not decide if the President’s memorandum violates the Constitution.

 

Md. Judge Finds Wolf Likely Appointed Illegally At DHS

Law 360: A Maryland federal judge held Friday that acting Homeland Security Secretary Chad Wolf was likely illegally appointed, and temporarily barred the Trump administration from enforcing new asylum restrictions on members of the advocacy organizations that challenged them.

 

District Court Issues Consent Order and Final Statement in Class Action Challenging Delay in Issuance of EADs

On 8/21/20, the U.S. District Court for the Southern District of Ohio (Eastern Division) entered a Consent Order and Final Statement in the class action lawsuit challenging delays in issuance of EADs by USCIS following approval of Form I-765 applications. (Subramanya v. USCIS, 8/21/20) AILA Doc. No. 20080438

 

Immigrants detained at Buffalo Federal Detention Center in Batavia sue contractor over $1-a-day work program

Batavian: The Worker Justice Center of New York (WJCNY) has filed suit in New York’s Supreme Court against the private, for-profit company, Akima Global Services (AGS), for its exploitation of detained immigrants at the Buffalo Federal Detention Center in Batavia.

 

CA1 Vacates Preliminary Injunction Against ICE Courthouse Arrests in Massachusetts

The court held that the district court abused its discretion in finding plaintiffs were likely to succeed in showing that the INA implicitly incorporates a common law privilege against civil arrests for individuals attending court on official business. (Ryan, et al. v. ICE, et al., 9/1/20) AILA Doc. No. 20090831

 

CA1 Upholds BIA’s Denial of Motion to Reconsider Where Petitioner’s VAWA Self-Petition Was Pending

Where the petitioner had premised his motion to reopen on a pending Violence Against Women Act (VAWA) self-petition, the court upheld the denial of his motion to reconsider, holding that the BIA did not err by finding he had failed to make a prima facie case. (Franjul-Soto v. Barr, 8/24/20) AILA Doc. No. 20090331

 

CA1 Finds Petitioner’s Conviction in Massachusetts for Drug Possession with Intent to Distribute Was an Aggravated Felony

The court held that the petitioner’s Massachusetts’ drug conviction for possession with the intent to distribute amounted to “illicit trafficking in a controlled substance” and was thus an aggravated felony under INA §101(a)(43)(B). (Soto-Vittini v. Barr, 8/24/20) AILA Doc. No. 20090330

 

CA2 Stays Nationwide Injunction on DHS Public Charge Rule

The court stayed the district court’s July 29, 2020, preliminary injunction in the DHS public charge rule, thus allowing USCIS to require the Form I-944 in all jurisdictions. (State of New York, et al., v. DHS, et al., 9/11/20) AILA Doc. No. 20091190

 

CA3 Upholds Asylum Denial After Finding Syrian Militia Is a Tier III Terrorist Organization Under INA §212(a)(3)(B)(vi)(III)

The court upheld the denial of asylum to the petitioner, who fled involuntary military service in a government-controlled militia in Syria, finding that the militia was not beyond the scope of the Tier III provision under INA §212(a)(3)(B)(vi)(III). (A.A. v. Att’y Gen., 9/2/20) AILA Doc. No. 20090834

 

CA3 Holds That “Substantial Evidence” Standard of Review Applies to an IJ’s Reasonable Fear Determinations

After holding that the substantial evidence standard applies to an IJ’s reasonable fear determinations, the court found that substantial evidence supported the IJ’s conclusion that the Mexican petitioner did not have a reasonable fear of persecution or torture. (Romero v. Att’y Gen., 8/25/20) AILA Doc. No. 20090333

 

CA3 Says It Lacks Jurisdiction to Review BIA’s Discretionary Denial of Petitioner’s Motion for Certification of Late-Filed Appeal

Concluding that the “settled course exception” did not apply in the context of the case, the court held that it lacked jurisdiction to review the BIA’s discretionary decision to decline to self-certify the petitioner’s late-filed appeal. (Abdulla v. Att’y Gen., 8/20/20) AILA Doc. No. 20090332

 

CA4 Finds Petitioner Failed to Establish That Salvadoran Government Was Unable or Unwilling to Control MS-13

Finding that the record did not compel the conclusion that the Salvadoran government was unwilling or unable to control the MS-13 gang, the court upheld the IJ and BIA’s conclusion that the petitioner did not qualify as a refugee under INA §101(a)(42)(A). (Portillo-Flores v. Barr, 9/2/20) AILA Doc. No. 20090835

 

CA5 Upholds Denial of Motion to Reopen Where BIA Found Petitioner Had Failed to Pursue His Rights Diligently

The court held that the BIA did not abuse its discretion in finding that the Mexican petitioner’s motion to reopen, which was filed seven years after the entry of his removal order, was untimely and not entitled to equitable tolling. (Flores-Moreno v. Barr, 8/24/20) AILA Doc. No. 20090334

 

CA8 Finds District Court Correctly Dismissed Petitioners’ Request for Nunc Pro Tunc Adjustment of Status

The court held that the district court properly dismissed the petitioners’ request for nunc pro tunc adjustment of status, because they had failed to adjust their status to lawful permanent residents, and thus could not meet the requirements for naturalization. (Al-Saadoon v. Barr, 8/28/20) AILA Doc. No. 20090336

 

CA8 Affirms Denial of EAJA Attorney’s Fees Where Government’s Position Was Substantially Justified

The court held that the district court did not err in concluding that the government’s litigation position was substantially justified, and thus affirmed the district court’s order denying the petitioner’s attorney’s fees under the Equal Access to Justice Act (EAJA). (Garcia v. Barr, 8/20/20) AILA Doc. No. 20090335

 

CA9 Finds Domestic Violence Waiver Under Special Rule Cancellation of Removal Did Not Cover Petitioner’s Drug Conviction

The court held that the domestic violence waiver established under INA §237(a)(7), and made applicable to cancellation of removal by INA §240A(b)(5), is limited to crimes of domestic violence and stalking, and thus did not cover petitioner’s drug conviction. (Jaimes-Cardenas v. Barr, 9/1/20) AILA Doc. No. 20090836

 

CA9 Reverses IJ’s and BIA’s Adverse Credibility Determination as to Asylum-Seeking Member of Minority Somali Clan

The court held that substantial evidence did not support the IJ’s and BIA’s adverse credibility determination, finding that, in light of the totality of the circumstances, the evidence compelled the conclusion that the Somali petitioner’s testimony was credible. (Iman v. Barr, 8/25/20) AILA Doc. No. 20090339

 

CA9 Defers to BIA’s Interpretation of Perjury and Holds That Conviction for Perjury in California Is an Aggravated Felony

Deferring to the BIA’s interpretation of “perjury” as used in the aggravated felony definition of INA §101(a)(43)(S), the court held that perjury under section 118(a) of the California Penal Code is an aggravated felony. (Yim v. Barr, 8/25/20) AILA Doc. No. 20090338

 

CA9 Says Petitioner Seeking to Reopen Proceedings Was Not Required to Attach a New Application for Relief

The court held that the BIA abused its discretion in finding that a noncitizen who seeks to reopen an earlier application for relief, and attaches that application to the motion, has failed to attach the “appropriate application for relief” under 8 CFR §1003.2(c)(1). (Aliyev v. Barr, 8/24/20) AILA Doc. No. 20090337

 

CA11 Finds BIA Erred in Retroactively Applying Stop-Time Rule to Pre-IIRAIRA Conviction of Petitioner Seeking Cancellation

The court held that because the petitioner had pled guilty before the stop-time rule was enacted via the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), applying the stop-time rule retroactively to his conviction was impermissible. (Rendon v. Att’y Gen., 8/26/20) AILA Doc. No. 20090340

 

Matter of R-C-R, 28 I&N Dec. 74 (BIA 2020)

(1) After an Immigration Judge has set a firm deadline for filing an application for relief, the respondent’s opportunity to file the application may be deemed waived, prior to a scheduled hearing, if the deadline passes without submission of the application and no good cause for noncompliance has been shown.

(2) The respondent failed to meet his burden of establishing that he was deprived of a full and fair hearing where he has not shown that conducting the hearing by video conference interfered with his communication with the Immigration Judge or otherwise prejudiced him as a result of technical problems with the video equipment.

 

District Court Grants Preliminary Injunction After Finding It Has Jurisdiction to Review USCIS’s Revocation of I-140 Petition

The U.S. District Court for the Middle District of Florida held that it has jurisdiction to review USCIS’s revocation of the plaintiff’s I-140 petition, and granted the plaintiffs’ request for a preliminary injunction. (6901 Coral Way Management, LLC, et al., v. Cucinelli, et al., 9/10/20) AILA Doc. No. 20091135

 

USCIS Launches SAVE Initiative to Collect Information on Sponsor Deeming and Agency Reimbursement

USCIS launched a new SAVE initiative asking agencies that administer federal means-tested benefits to share how they use sponsorship information in sponsor assessment and agency reimbursement processes, with the goal of helping agencies make eligibility determinations and hold sponsors accountable. AILA Doc. No. 20091032

 

DHS Proposed Rule on Use and Collection of Biometrics

DHS proposed rule on the use and collection of biometrics in the enforcement and administration of immigration laws. Comments on the rule are due on 10/13/20, with comments on associated proposed form revisions due 11/10/20. (85 FR 56338, 9/11/20) AILA Doc. No. 20090494

 

CDC Rule Finalizing Interim Final Rule on Foreign Quarantine

CDC rule finalizing the interim final rule published at 85 FR 16559, which provided a procedure for the CDC to suspend the introduction of persons into the United States from designated foreign countries or places for public health purposes. (85 FR 56424, 9/11/20) AILA Doc. No. 20090833

 

DHS Publishes Privacy Impact Assessment on Immigration-Related Information Sharing with U.S. Census Bureau

DHS released a PIA examining the privacy impact of immigration-related information sharing between DHS and the Census Bureau. DHS is providing administrative records to the Bureau to assist in determining the number of citizens, LPRs, and unauthorized immigrants in the U.S. during the 2020 census. AILA Doc. No. 19122704

 

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EVENTS

 

Note: Check with organizers regarding cancellations/changes

 

ImmProf

 

Monday, September 14, 2020

Sunday, September 13, 2020

Saturday, September 12, 2020

Friday, September 11, 2020

Thursday, September 10, 2020

Wednesday, September 9, 2020

Tuesday, September 8, 2020

Monday, September 7, 2020

 

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So much outrageous conduct by the regime. So little effective “pushback” from the other two branches who largely continue to treat the dissolution of democracy as “just another day at the office.”

With so much “bad stuff” to choose from, here’s my personal “favorite of the week:”

DHS Whistleblower Complaint Includes Surprising Insights on Immigration Policy

ImmProf: Mr. Murphy believes former DHS head Kirtjen Nielsen presented Congress with “knowing and deliberate submission of false material information” about the number of [known or suspected terrorists] crossing the southern border.

Cabinet Secretary lies to Congress. Regime uses lies to proclaim a bogus “national security emergency” at the Southern Border. Some Federal Courts, including the Supremes, accept the pretexts for furthering the Trump/Miller racist, White Nationalist anti-asylum-seekers of color agenda. 

Nothing happens to the liars. Congress and the Federal Courts “normalize” lying as a “standard Executive practice,” defer to it, and allow regime to impose potential death sentences without due process. Victims are just a bunch of largely non-White vulnerable humans that righty Federal Judges don’t believe are human or “persons” under our law.

As one of my esteemed, now retired, Arlington colleagues used to say: “The system is broken.” 

But, disturbingly, this time it’s not just the Immigration Court system we’re talking about. It’s the whole justice system, the checks and balances, and the separation of powers set up by our Constitution. Lack of accountability for gross misconduct by public officials is the sign of a failing state.

I almost feel sorry for T. Dick Nixon. If he were in office today, the Watergate burglary, conspiracy, and cover-up would have been dismissed by the GOP politicos as “fake news.” And, today’s righty judges on the Supremes and the appellate courts would simply have looked they other way and made up legal gobbledygook and gibberish to cover for their supreme ruler.

Remember, part of Nixon’s downfall was the “missing 18 minutes” of the tapes. There’s nothing missing about the “Trump tapes.”

He’s recorded committing “criminal negligence” in office, lying about it, and endangering the lives and health of tens of thousands of Americans. Then, he and his stooges get up before the public and lie some more about what happened. Then, to prove he really doesn’t give a damn about the American people, he follows up by holding a rally that fails to comply with, and in fact mocks and disparages, his own Administration’s best health advice.

Nixon was a liar. But, I guess not a shameless enough one. And, he didn’t kill as many Americans.

Fortunately for Trump, the dead can’t vote. But, their families, friends, and colleagues can! How many more must die unnecessarily before we finally “throw the bum out” (with apologies to honest bums everywhere) and get a real President into office?’

PWS

09-15-20  

HISTORICAL PERSPECTIVE: Will Judge Emmet Sullivan Become The Judge John Sirica of “Trumpgate?”  — “No Nincompoops!”

Judge John “Maximum John” Sirica
Judge John “Maximum John” Sirica
1904-1992
US District Court, D.C.
1957-1992
Hon. Emmet G. Sullivan
Hon. Emmet G. Sullivan
US District Judge
DC

HISTORICAL PERSPECTIVE: Will Judge Emmet Sullivan Become The Judge John Sirica of “Trumpgate?”  — “No Nincompoops!”

By Paul Wickham Schmidt

Courtside Exclusive

May 17, 2020.  Nearly five decades ago, a tough-minded U.S. District Judge in Washington, D.C., refused to “go along to get along.” Judge “Maximum John” Sirica saw through the corrupt B.S. being put forth by defendants (“The Plumbers”) who pleaded guilty in attempting to “cover up” the badly bungled Watergate burglary of DNC headquarters in the Watergate Hotel. So, Sirica did some digging on his own. 

One of his most famous quotes — the “No Nincompoops Rule”  was set forth in his New York Times obit: 

“I don’t think a Federal judge should sit up on a bench — particularly in a case like this one, with great public interest in it — I don’t think we should sit up here like nincompoops.” https://www.nytimes.com/1992/08/15/us/sirica-88-dies-persistent-judge-in-fall-of-nixon.html

None other than former Attorney General John Mitchell had been involved in orchestrating the Watergate caper, and the “cover-up” trail eventually led all the way to the Oval Office and President Nixon. Nixon eventually resigned with impeachment, conviction, and removal staring him in the face. 

The scandal involved some truly bizarre moments such as the “kidnapping” of Mitchell’s eccentric, talkative, estranged wife Martha and White House Counsel John Dean being told to “deep six” potentially incriminating documents by throwing them off the 14th Street Bridge on the way home to his Alexandria townhouse. It added to our vocabulary colorful terms like “stonewalling,” “twisting slowly in the wind,” “Deep Throat,” and more, in addition, of course, to “deep six.” John “The Con” Mitchell was convicted of conspiracy, perjury, and obstruction of justice (although never charged with Martha’s kidnapping) and served time in a Federal Penitentiary. Judge Sirica was named Time’s “Man of the Year.”

Watergate also resulted in changes in ethical rules and an effort to insulate the DOJ investigative and prosecution functions from political influence, particularly interference from the White House. With AG Billy Barr’s assistance, Trump has basically blown away all ethical safeguards and politicized and “weaponized” government institutions to a degree that probably exceeds Watergate. 

Now, Billy Barr is trying to further Trump’s agenda by making the Flynn prosecution go away. That’s after Flynn actually pleaded guilty to the charges before Judge Emmet G. Sullivan. At least initially, Judge Sullivan appears skeptical about the sudden change of course by DOJ prosecutors. It’s a move that led to the withdrawal of the career prosecutors involved in the case and a demand from a bipartisan group of more than 2,000 former DOJ officials (including me and many colleagues from the Round Table of Retired Judges) that Barr resign.

Judge Sullivan has a reputation for independence and not suffering fools lightly. He has appointed private counsel to argue against dismissal of the charges. We’ll have to see what, if anything, comes of it all. 

It’s also unclear whether a lone Federal Judge of courage and integrity still can “make a difference” in today’s rapidly deteriorating legal and political environment. During Watergate, a unanimous Supremes (with Chief Justice Rehnquist recused) stood up to Nixon and rejected his bogus executive privilege claim on incriminating tapes. GOP Congressional leaders eventually joined those voices urging Nixon to resign.

So far, by contrast, the Roberts-led Supremes’ majority hasn’t shown an inclination to stand up to Trump on any major issue of Executive overreach. And, GOP legislators have shown themselves to be so scared of Trump and so far inside his pocket that they can’t see the light of day. Indeed, they appear to have lost ambition to do anything other than help Trump and cover up his corruption and “malicious incompetence.”

Even if Sullivan does uncover something shady, it’s likely that Roberts and the GOP will leap to help Trump and Barr suppress and cover up any evidence of wrongdoing by blocking or obstructing any further investigation by House Democrats. Times have changed. And, right now, that doesn’t appear to be for the better for our justice system or our nation.

PWS

05-17-20

PETER M. SHANE @ SLATE: Barr Disgraces & Debases The DOJ & American Justice: “Worse, his leadership surely sends a message to other Justice Department lawyers as to their expected priorities. This kind of leadership and the debasement of government lawyering it augurs will take years to repair, as it did in the wake of Mitchell himself. There is no way to begin that job until Barr is out of office.”

https://slate.com/news-and-politics/2019/04/william-barr-resign-mueller-report.html

Shane writes:

In no small part because of the performance on Thursday of Attorney General William Barr, history will treat his Justice Department as it treats the Justice Department under Richard Nixon’s one-time attorney general, John Mitchell—an institution compromised by rank partisanship and more committed to ideology than the rule of law. Barr’s spin on special counsel Robert S. Mueller’s report all but ignored the report’s damning findings, misrepresented significant parts of Mueller’s reasoning, and described President Donald Trump’s motivations and supposed cooperation in terms straight out of White House talking points. Barr engaged in word-splitting pettifoggery that would make even Bill Clinton blush. Barr is clearly compromised by the partisan goals of this White House to the point where he cannot be trusted in the job. He should resign immediately.

Barr started Thursday’s pre-report rebuttal by reiterating that “the special counsel found no ‘collusion’ by any Americans in the [Russian Internet Research Agency’s] illegal activity.” Using the word collusion was itself slippery given that collusion could take the form of an explicit illegal agreement or, in common parlance, just a “connivance,” or tacit encouragement, or assent to wrongdoing by another. It was precisely because of the ambiguity of collusion that the report avoids the term:

In evaluating whether evidence about collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of “collusion.” […] [C]ollusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law. For those reasons, the Office’s focus in analyzing questions of joint criminal liability was on conspiracy as defined in federal law.

In other words, Mueller did not find “no collusion”; what he found was insufficient “evidence likely to prove beyond a reasonable doubt that Campaign officials such as Paul Manafort, George Papadopoulos, and Carter Page acted as agents of the Russian government—or at its direction, control, or request—during the relevant time period.” Mueller doubted he could prove beyond a reasonable doubt that participants in the June 9, 2016, Trump Tower meeting violated the federal election-law ban on contributions and donations by foreign nationals. Such proof would require both a demonstration of their willfulness and that the information received by the Trump campaign was “a thing of value” worth at least $2,000 for a criminal violation or $25,000 for felony indictment.

An inability to prove the elements of criminal conspiracy beyond a reasonable doubt hardly belies the Trump campaign’s tacit encouragement of or assent to Russian wrongdoing. Collusion of that sort is amply shown by the Mueller investigation’s documentation of over 100 contacts between the campaign and Russians hoping to tilt the election to Trump. Indeed, for encouragement, one need look no further than candidate Trump’s July 27, 2016, statement: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.”

Barr’s discussion of obstruction of justice is even worse for Trump. In his four-page account of the Mueller report, Barr said he and Deputy Attorney General Rod Rosenstein had determined from the Mueller report that no criminal obstruction of justice had occurred. He said they were not basing their conclusion on a view that sitting presidents could not be indicted: “Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.” At today’s press conference, Barr tried to make it sound as if Mueller’s decision not to charge the president was also made without regard to that theory:

Here is what the report actually states:

We considered whether to evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decisions, but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes. … Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.

The concerns about the fairness of such a determination would be heightened in the case of a sitting President, where a federal prosecutor’s accusation of a crime, even in an internal report, could carry consequences that extend beyond the realm of criminal justice. OLC noted similar concerns about sealed indictments.

In short, for Barr’s statement to be regarded as truthful, you have to interpret the notion of “but for” cause very, very narrowly. Parsed narrowly, Mueller does not say that he would have charged a crime “but for” the OLC opinion. He also relied on “fairness considerations” noted in the OLC opinion. Saying, however, that Mueller’s failure to charge obstruction was not based on the Justice Department’s policy regarding incumbent presidents puts us in the same territory as wondering what “the definition of ‘is’ is.”

Barr’s tendentiousness is all the more notable if one reads just one paragraph further in the Mueller report: “[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.”

Beyond this, Barr applauded Trump for taking “no act that in fact deprived the special counsel of the documents and witnesses necessary to complete his investigation.” This ignores Trump’s refusal himself to be interviewed, a critical omission in an investigation of a crime that turns significantly on a suspect’s state of mind. Barr further implicitly excused Trump’s outbursts directed at ending the Russia investigation as a reflection of Trump’s agitated state of mind: “There is substantial evidence to show that the president was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.” When a reporter suggested his remarks were “quite generous to the president, including acknowledging his feelings and emotions,” Barr insisted “the statements about his sincere beliefs are recognized in the report.” However, the report offers no explicit conclusions about the president’s sincerity at all, which, in any event, would appear to be legally irrelevant as to his motivations.

In an earlier work discussing the importance of government lawyers to maintaining the rule of law, I wrote of the essential “self-discipline for those immediately involved in [executive branch decisions] to actually concern themselves with perspectives and interests other than the partisan agenda they all share.” The attorney general today showed none of that discipline. Worse, his leadership surely sends a message to other Justice Department lawyers as to their expected priorities. This kind of leadership and the debasement of government lawyering it augurs will take years to repair, as it did in the wake of Mitchell himself. There is no way to begin that job until Barr is out of office.

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Jeff “Gonzo Apocalypto” Sessions appeared to have put the title of “Worst Attorney General Since John the Con” out of reach. But, Barr is certainly giving both “Gonzo” and “The Con” a run for their  money.

Considering that he took over a Department with “zero morale” that he has been able to further degrade its mission and reduce morale below zero so rapidly is certainly a major achievement.

Where do they find individuals so willing to debase our democracy in support of such a morally bankrupt and totally unqualified “leader” as Trump? How do these folks sleep at night?  And, how do they keep getting confirmed?

PWS

04-20-19

HISTORY: Paul Fanlund In Madison Cap Times: How We Got From Nixon To Trump!

http://host.madison.com/ct/opinion/column/paul_fanlund/paul-fanlund-so-why-can-t-america-just-be-good/article_e8734a95-ed8b-5544-a32f-f5ee791264a3.html#tncms-source=behavioral

Fanlund writes in an op-ed:

“When Roger Ailes died, essays about him ranged from adoring to vilifying. As creator of Fox News, he was perhaps the nation’s most influential political messenger — or propagandist — of the past 50 years.

One aspect of any honest obituary, of course, was his misogyny. Ailes was finally forced out at Fox in 2016 after years of sexual harassing women employees. His 17-year-old son threatened his father’s accusers at the funeral, warning mourners that he wanted “all the people who betrayed my father to know that I’m coming after them, and hell is coming with me.”

But what I found most interesting in immersing myself in analyses of Ailes’ life was how little his craft had to do with liberal versus conservative ideology.

Rather, Ailes was perhaps the master of the dark art of inventing and relentlessly reinforcing hateful caricatures of political opponents — in his case, people of color, bureaucrats, university professors and, of course, the media.

His brilliant execution of that art culminated in Donald Trump.

Ailes, as is widely known, learned from Richard Nixon, for whom he worked as a young television consultant. Nixon launched his political career much earlier by championing “forgotten Americans,” lunch-pail-toting working men whose fortunes, in Nixon’s telling, were stymied by taxes and regulations imposed upon them by far-away elites.

The rest, as they say, is history. Nixon appealed to his “silent majority” to stand against anti-war and civil rights protesters. Democrats opened the floodgates to Republican demagoguery by advancing civil rights. The GOP today has broadened its pool of villains to include Latino and Muslim immigrants.

The 1980s brought jolly Ronald Reagan with his fantastical stories about welfare queens, followed by George H.W. Bush’s law and order and patriotism themes, and so on.

“Individual issues would come and go — acid, amnesty and abortion in 1972, and immigration, political correctness and transgender bathrooms in 2016 — but the attacks on liberals as elite, out of touch and protective of the ‘wrong people’ came from the same playbook,” wrote David Greenberg, a Rutgers professor of history and journalism, in a New York Times op-ed on Ailes.

OK, but why does it always work?

Why are so many — especially older, white, middle-class people — so susceptible to this toxic narrative when it is clear that the trickle-down GOP policies that follow do them so little good?

Maybe, I theorize, it has something to do with how we were all taught.

I’ve talked with many friends about the flag-waving jingoism of our pre-college education, in which our nation was portrayed as perfect, our leaders without fault.

My formal education began when Dwight Eisenhower was president, an era of unfettered national pride. We were a paragon of liberty and justice and never fought in unjust wars. It was as if someone decided that American children could not process the slightest balance or shade of gray.

In this frame, Andrew Jackson was, as Trump likes to say, a glorious “swashbuckler” like himself, not a president who drove Native Americans from their homes, killing thousands in the process. Nor were we ever taught that Jackson, George Washington, Thomas Jefferson and other forefathers owned slaves.

It seems the goal was always to convey “American exceptionalism,” or, more bluntly, reinforce a cultish sense of American superiority.”

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Fanlund’s entire op-ed, at the above link, is well worth a read!

Lots of folks don’t like it when we put US history in perspective. For example, during the “glory days” of my childhood in the 1950’s millions of African Americans throughout the nation, and particularly in the South, were deprived of the basic rights of US citizenship. This was notwithstanding the clear dictates of the 14th Amendment, which had been added nearly a century earlier.

The US and many state governments merely decided not to enforce the law of the land. So much for all of the “rule of law” and “nation of laws” malarkey purveyed by right wingers today.

Indeed, many southern states enacted discriminatory laws that were directly contrary to the 14th Amendment. And, amazingly, for the majority of the 19th and 20th Centuries, courts of law at all levels were complicit in enforcing these unconstitutional laws and ignoring the14th Amendment!

PWS

05-26-17