March 2017 – Page 3 – immigrationcourtside.com

Oral Argument Set For May 8 In International Refugee Assistance Project v. Trump — 4th Cir. Grants Gov’s Request to Expedite!

http://www.nationallawjournal.com/home/id=1202781955190/Fourth-Circuit-Expedites-Travel-Ban-Case-Sets-May-8-Hearing?mcode=1202617074964&curindex=0&slreturn=20170225010630

The National Law Journal reports:

“The U.S. Court of Appeals for the Fourth Circuit agreed Thursday to expedite a challenge to President Donald Trump’s travel ban executive order, setting oral arguments in the case for May 8 at the court in Richmond.
The government appealed a Maryland U.S. district court’s order last week that blocked a portion of the president’s March 6 executive order restricting travel from six majority-Muslim countries. On Wednesday, the Justice Department requested the court expedite the briefing schedule for the appeal, arguing that lower courts and the Ninth Circuit all expedited litigation surrounding both the March 6 executive order and the first order, now revoked, which was issued Jan. 28.
The government had also indicated in its request to expedite the process that it intends to file a motion to stay the injunction pending appeal. According to the court’s schedule, the government plans to file that motion Friday. The plaintiff’s response will be due March 31, with the government’s reply due April 5.
The government said the issue is “of national importance” and has national security implications, making it worthy of a speedy schedule. According to the filing, the plaintiffs disagreed with the government’s proposed schedule, and requested a May 10 deadline for their briefs. The Fourth Circuit originally issued a briefing schedule requiring the government to file its opening brief April 26, with the briefing completed by June 9.”

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PWS

03/25/17

Trump Wins One In Virginia!

http://www.cnn.com/2017/03/24/politics/virginia-federal-judge-revised-travel-ban/

CNN reports:

“(CNN)A federal judge in Virginia ruled in favor of the Trump administration Friday, declining to join other federal courts that halted the President’s revised travel ban last week.

Two federal judges — one in Maryland and one in Hawaii — have blocked implementation of the core provisions of the travel ban, and it remains on hold nationwide. Drawing on a litany of then-candidate Donald Trump’s statements about Muslims during the presidential campaign, both of the judges concluded that the new executive order likely violates the establishment clause of the Constitution by disfavoring Muslims.

But Virginia-based US District Judge Anthony Trenga was not persuaded that Trump’s past statements automatically mean the revised executive order is unlawful, especially given the changes it made from the first version.
“This court is no longer faced with a facially discriminatory order coupled with contemporaneous statements suggesting discriminatory intent,” Trenga explained. “And while the President and his advisers have continued to make statements following the issuance of EO-1 (the first executive order) that have characterized or anticipated the nature of EO-2 (the revised ban) the court cannot conclude for the purposes of the motion that these statements, together with the President’s past statements, have effectively disqualified him from exercising his lawful presidential authority.”
The practical effect of Trenga’s decision is limited at this point because the travel ban is already frozen nationwide, but it adds another judicial voice in support of the legality of the executive order as it makes its way through further proceedings in federal appellate courts.
Trump’s new travel ban blocked: What you need to know
“The substantive revisions reflected in EO-2 have reduced the probative value of the President’s statements to the point that it is no longer likely that plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose,” Trenga added.
The Justice Department championed the news.”

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Not much immediate impact here, because TRO’s from Federal cases in Hawaii and Maryland remain in effect. But, Judge Trenga’s legal analysis will certainly be helpful to the Government moving forward.

PWS

03/25/17

BREAKING: NQRFPT! — Trumpcare Tanks! — Prez Tells Ryan To “Pull” Doomed Bill!

NQRFPT = “Not Quite Ready For Prime Time” a term sometimes used to describe certain cases on the Arlington Immigration Court docket.

https://www.washingtonpost.com/powerpost/house-leaders-prepare-to-vote-friday-on-health-care-reform/2017/03/24/736f1cd6-1081-11e7-9d5a-a83e627dc120_story.html?hpid=hp_rhp-top-table-main_housevote715a:homepage/story&utm_term=.e92b3451c27c

The WashPost reports:

“House Republican leaders abruptly pulled a Republican rewrite of the nation’s health-care system from consideration on Friday, a dramatic acknowledgment that they are so far unable to repeal the Affordable Care Act.

“We just pulled it,” President Trump told the Washington Post in a telephone interview.

The decision came a day after Trump delivered an ultimatum to lawmakers — and represented multiple failures for the new president and House Speaker Paul D. Ryan (R-Wis.).

The decision means the Affordable Care Act remains in place, at least for now, and a major GOP campaign promise goes unfulfilled. It also casts doubt on the GOP’s ability to govern and to advance other high-stakes agenda items, including tax reform and infrastructure spending. Ryan is still without a signature achievement as speaker — and the defeat undermines Trump’s image as a skilled dealmaker willing to strike compromises to push his agenda forward.

“I don’t blame Paul,” Trump said, referring to Ryan.”

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Read this article from Vox News about how Speaker Ryan “conned” the “Great Conner” into “going all in” on this terrible piece of proposed legislation which directly violated a number of Trump’s specific campaign promises (not that truthfulness has ever been much of a concern for Trump). Additionally, and perhaps not surprisingly, Trump was somewhat handicapped during negotiations by the fact that according to “those in the know” he never even read the bill he was touting. After all, “why sweat the details?”

http://www.vox.com/policy-and-politics/2017/3/24/15039664/paul-ryan-donald-trump-ahca

NWS President’s Trump’s statement that he “didn’t blame” Ryan, if I were “Speaker Paul,” I’d watch my back (and, perhaps, also my front). The President is not widely known as a “good loser.” To paraphrase one of my college buddies who grew up in South Philly, “Nobody cops a sneaky on DT and gets away with it.”

PWS

03/24/17

WashPost OPINION: David Cole Lays Out The Case For Rejecting “Travel Ban 2.0” — Why Judges Should Look Behind The Language OF The EO To Determine “Intent”

https://www.washingtonpost.com/opinions/judges-shouldnt-ignore-what-we-all-know-trumps-travel-ban-is-really-about/2017/03/22/4ad23ce2-0f21-11e7-ab07-07d9f521f6b5_story.html?utm_term=.e93e1d53f89f

Cole writes:

“So does the immigration or the establishment-clause test govern? The answer should depend on the nature of the government’s action. Deference is proper when the political branches draw customary and “bona fide” immigration lines, especially when there is no suggestion of an improper purpose. It makes sense to defer to immigration decisions based on family ties or adherence to visa conditions, because it is next to impossible to regulate immigration without drawing such lines. But the Trump administration has advanced no reason immigration law should be a tool for denigrating religion.

Establishing religion has never been a proper goal of immigration law — or any law. Targeting Islam violates the rights of Americans, whatever form it takes; there is no justification for giving the government a pass because it is regulating the border. When Trump signed the first travel ban, he said, “We all know what that means.” We do, indeed. And judges, no less than the rest of us, must not blind themselves to what “we all know.”

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Curmudgeonly Observation Of The Day

As noted in his op-ed, Professor Cole wears “many hats,” one of which is as the attorney for the plaintiffs in International Refugee Assistance Project v. Trump, currently pending on appeal by the Government in the U.S. Court of Appeals for the Fourth Circuit.

I’m not saying that there is anything unethical or improper about Cole writing this article. Attorneys seem to do it all the time, although more often from the private than from the Governmental side. As long as the judge hasn’t entered a “gag order,”(very rare in civil litigation like this) it’s perfectly legit.

It’s probably just me being an “old guy” and having spent two decades toiling away on appellate and trial benches at the administrative level (certainly not the exalted level of the U.S. District Court or the Fourth Circuit). Nevertheless, as I indicated in my recent blogs about extra-judicial statements by Trump and his advisors, I continue to think it is a “bad practice” for parties and attorneys with pending cases to take the argument “out of court and into the media.”

In my judicial career I presided over a number of so-called “high profile” cases. As a judge, I never appreciated seeing articles or statements in the press by the attorneys of record or parties while the matter was pending before me (or “us” in the case of the BIA).

To me, it always seemed to indicate a curious desire by the party to have the case tried in a forum “other than the one I was presiding over.” That didn’t necessarily warm my heart or increase my respect for the party.

Of course, as I judge I had to “get over it” (in the words of my esteemed former colleague, now retired, Judge Wayne R. Iskra) along with lots of other annoying “peripheral stuff” to treat the parties fairly and make a just decision on the law and facts. But, I always wondered: “Why even put that seemingly unnecessary ‘hurdle’ in front of me.”

Sure, nothing takes the place of “real life” reflections from those involved in big cases. That’s what “after the fact” articles, press conferences, law review pieces, books, and even movies are for. But, I think that it is most prudent for those actively involved in pending litigation to let their statements and filings in court speak for them. Surely, there are others in academia and the NGO community who could have written the same article that Cole did based on what is already in the public record.

PWS

03/24/17

NY Times: What Does It REALLY Take To Get A U.S. Nonimmigrant Visa?

From listening to some members of the Administration, nonimmigrant visas for visitors, students, professors, businessmen, and tech workers are being handed out like candy abroad. But, those of us who have actually practiced immigration law for a living at one time or another know the hard truth: getting a U.S. nonimmigrant visa for a client can be a long, detailed, and often frustrating process.

I left private practice 22 years ago. But, even then, getting a business visa for a client in India, Pakistan, or the Philippines, to name just a few consulates, could be a major project. I can remember being on our basement dial phone at 3:00 AM with my files and papers spread across an ironing board as I tried to negotiate what “additional evidence” might be necessary for my business client to establish his or her bona fides, during the one-hour period that many consulates halfway around the world allocated to speak with attorneys about visa cases. And this was after the INS had approved a visa petition. I’m sure it has only gotten more difficult and exacting since then.

Here is a good step-by-step guide to the visa issuing process by Ron Nixon and Jasmine C. Lee in the NY Times. And, this is just for a “typical” visa. In countries where terrorism is a threat, this would only be the beginning of the inquiry.

https://www.nytimes.com/interactive/2017/03/16/us/visa-process-united-states.html?emc=edit_nn_20170324&nl=morning-briefing&nlid=79213886&te=1&_r=0

PWS

03/24/17

NY TIMES EDITORIAL: The “Art Of The Shame” Makes America Less Safe!

https://mobile.nytimes.com/2017/03/22/opinion/president-trumps-reckless-shame-game.html?em_pos=small&emc=edit_ty_20170323&nl=opinion-today&nl_art=0&nlid=79213886&ref=headline&te=1&_r=0&referer=

“President Trump’s Homeland Security Department turned its immigration purge — and assault on the Constitution — up a notch this week. It posted the first of what it says will be weekly online reports identifying state and local law enforcement agencies that decline its requests to keep immigrants in jail to give federal agents time to pick them up.

The idea is to name and shame these agencies, accusing them of recklessly loosing dangerous aliens onto the streets. The report, on the Immigration and Customs Enforcement website, trumpets itself as a “Public Safety Advisory.” It includes a grim warning from the acting ICE director, Thomas Homan, about the agency’s requests, called detainers: “When law enforcement agencies fail to honor immigration detainers and release serious criminal offenders, it undermines ICE’s ability to protect the public safety and carry out its mission.”

The accusation is dishonest. The report is a sham. And the claim of protecting public safety is ridiculous — dangerously so.

When local authorities decline to honor ICE detainers, they can have any number of good reasons for doing so. A likely one is the Fourth Amendment, which forbids imprisoning anyone without justification. If a police department is about to release someone who posts bail, it can’t prolong the detention — in essence, arrest that person again — just because ICE asks it to. Federal courts have repeatedly ruled that the local police cannot be forced to honor a detainer in violation of the Constitution. That is, without an arrest warrant from a judge. Which an ICE detainer is not.
Beyond the constitutional problems lies an argument about public safety, which also finds the Trump administration on the wrong side of the facts, in service of a campaign of fear. Mr. Trump has been trying to make Americans fear unauthorized immigrants. He has succeeded in making these immigrants terrified of him, having declared open season on the undocumented, in effect making every one of 11 million people a priority for deportation. Nobody — not parents of citizen children, not students, not those with clean records and deep American roots — is above suspicion or safe from arrest.

. . . .

By attacking them in this way, the administration puts local law enforcement agencies in a terrible position. Honoring a detainer puts them at risk of a federal lawsuit. Not honoring one puts them in the cross hairs of the xenophobic Mr. Trump. His indiscriminate search for immigrants to deport keeps ICE from focusing on real public safety threats. It antagonizes local agencies that want to do policing the right way. It emboldens corrupt local jurisdictions that engage in racial profiling and other abuses. And it makes immigrants fear and shun the protection of law enforcement.

The result: Everybody is afraid. And everybody is less safe.”

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Read the complete editorial at the above link.

PWS

03/23/17

DOJ’s Travel Ban Litigating Strategy Discussed — The Rush Appears To Be “Off!”

https://www.washingtonpost.com/news/post-nation/wp/2017/03/23/trump-said-dangerous-people-might-be-pouring-in-without-his-travel-ban-but-hes-not-rushing-to-restore-it/?utm_term=.91d750428250

Matt Zapotosky reports in the Washington Post:

“Legal analysts and opponents say the Justice Department is likely pursuing a more methodical, strategic approach in hopes of a long-term victory — although in the process, the administration is hurting its case that the order is needed for urgent national security.

“If they don’t try to move the case as quickly as possible,” said Leon Fresco, deputy assistant attorney general for the Office of Immigration Litigation in President Barack Obama’s Justice Department, “it does undermine the security rationale.”

Trump’s new travel order — which suspended the U.S. refugee program for 120 days and blocked the issuance of new visas to citizens of Iran, Sudan, Somalia, Libya, Somalia and Syria for 90 days — was supposed to take effect March 16, but U.S. District Judge Derrick K. Watson in Hawaii blocked the administration from enforcing the critical sections of it. Early the next day, a federal judge in Maryland issued a similar ruling — leaving the administration with two different cases, in two different appellate circuits, that they would need to get overturned before they could begin carrying out the president’s directive. All roads seemed to lead to the Supreme Court.
But now it seems all but certain that the president’s revised entry ban will stay suspended at least into April, and possibly longer.

Lawyers for the Justice Department filed a notice of appeal in the Maryland case a day after the judge there ruled, but — unlike last time — they did not ask the higher court to immediately set aside the freeze on the new ban. They said they will do so Friday, but those challenging the ban will have a week to respond, and the Justice Department will then be allowed to file more written arguments by April 5.

The Trump administration has been content to let the court battle play out even more slowly in Hawaii, not elevating the dispute beyond a lower-court judge. The Justice Department has not filed a notice of its intent to appeal the ruling, and the next hearing in that case is set for March 29. Justice Department lawyers wrote Thursday that they would appeal to a higher court if that hearing doesn’t resolve in their favor. The courts will ultimately have to decide important questions, including how much authority they have to weigh in on the president’s national security determinations, whether Trump’s order was meant to discriminate against Muslims, and whether and how the president’s and his advisers’ own comments can be used against them.

There could be strategic reasons for pumping the brakes. Stephen W. Yale-Loehr, a professor of immigration law at Cornell Law School, said the Justice Department might be hoping for a favorable ruling from the U.S. Court of Appeals for the 4th Circuit, of which Maryland is a part, before they bring a case before the 9th Circuit, of which Hawaii is a part. A three-judge panel in the 9th Circuit unanimously rejected the administration’s bid to restore Trump’s first entry ban after it was frozen. The 4th Circuit on Thursday scheduled oral argument in its case for May 8.

And the Justice Department could be playing an even longer game, hoping that by the time the case makes its way to the Supreme Court, Neil Gorsuch will have joined the justices and brought to an end what many see as a 4-to-4 split along ideological lines, said Jonathan E. Meyer, a former deputy general counsel in the Department of Homeland Security under Obama who now works in private practice at Sheppard Mullin.”

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Even assuming that the Supremes eventually take the case, by no means a “gimme,” it probably would not be heard by the Court until some time in 2018 with a decision perhaps months after the argument. During that time, it is highly likely that the Travel Ban will remain enjoined.

From a government standpoint, it’s always prudent to 1) think carefully before taking on issues that can be litigated in U.S. District Courts which have authority to issue nationwide injunctions which require only a preliminary showing and are very difficult to “undo” (by contrast, “Removal Cases” usually can only be litigated in Circuit Courts of Appeal, which, although higher on the “judicial totem pole” than USDCs, lack authority to issue nationwide injunctions in connection with such individual case judicial review); and 2) always have “Plan B.” Here, “Plan B” might be the more stringent requirements for screening and issuing visas from countries where terrorist activity has taken place set forth in Secretary of State Tillerson’s recent instructions discussed in my previous blog:

http://wp.me/p8eeJm-xN

PWS

03/23/17

With Neither Fanfare Nor Commotion, State Department Quietly Implements Enhanced Visa Screening For Many MidEast, African Countries — “Travel Ban Lite”

https://www.nytimes.com/2017/03/23/us/politics/visa-extreme-vetting-rex-tillerson.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news&_r=0

The NY Times Reports:

“WASHINGTON — The Trump administration is making it tougher for millions of visitors to enter the United States by demanding new security checks before giving visas to tourists, business travelers and relatives of American residents.

Diplomatic cables sent last week from Secretary of State Rex W. Tillerson to all American embassies instructed consular officials to broadly increase scrutiny. It was the first evidence of the “extreme vetting” Mr. Trump promised during the presidential campaign.

The new rules generally do not apply to 38 countries — including most of Europe and longstanding allies like Australia, New Zealand, Japan and South Korea — whose citizens can be speedily admitted into the United States under the visa waiver program. No countries from the Middle East or Africa are part of the program. In 2016, the United States issued more than 10 million visas to foreign visitors.

Even stricter security checks for people from six predominantly Muslim nations remain on hold because federal courts have temporarily blocked President Trump’s travel ban.

But Mr. Trump and his national security team are not waiting to toughen the rules to decide who can enter the United States. Embassy officials must now scrutinize a broader pool of visa applicants to determine if they pose security risks to the United States, according to four cables sent between March 10 and March 17.

That extra scrutiny will include asking applicants detailed questions about their background and making mandatory checks of social media history if a person has ever been in territory controlled by the Islamic State.

Mr. Trump has spoken regularly of his concern about the threat of “radical Islamic terrorism” from immigrants. But it is unclear who, exactly, will be targeted for the extra scrutiny since Mr. Tillerson’s cables leave that decision up to security officers at each embassy.

Still, taken together, consular officials and immigration advocates said the administration’s moves will increase the likelihood of denial for those seeking to come to America, and will further slow down a bureaucratic approval process that can already take months or even years for those flagged for extra investigation.

There are legitimate reasons someone might be targeted, such as evidence of a connection to terrorism or crime. But advocates also said they worry about people being profiled for extra scrutiny because of their name or nationality.”

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I have suggested before that the whole “Travel Ban” circus was an unnecessary publicity/feed the base/whip up fear and loathing/show ’em who’s in charge stunt.

The Administration almost certainly has the authority to tighten visa screening in specific ways on a case-by-case basis as the Obama Administration and most of its predecessors have done when appropriate to meet specific threats (as opposed to absolute, across the board bans and prohibitions which, even if eventually found legal, obviously raise more difficult and controversial issues.) The Administration appears to be doing now what it could have done earlier.

PWS

03/23/17

“POGO RULES!” GOP: “We Have Met The Enemy And It Is Us!” — “Gang That Couldn’t Shoot Straight” Threatens To Shoot Self In Foot — “Great Negotiator” Ends Negotiations Perhaps 40 Votes Short — GOP Leadership To Force Friday Vote On Health Care — They Might Well Lose!

All the reasons why our country is in extreme peril with the GOP “in charge” (so to speak) of the political branches were on vivid display this week. Inept leadership at both the House and White House levels went head to head with the hard core “Bakuninist Wing” on the right which cares not a fig about the overall good of the country or, apparently, about the future of their party either.

It’s still possible, but not probable, that the votes to pass the horrible GOP version of health care “reform” will materialize tomorrow. If it ever became law, it would guarantee misery to the most vulnerable Americans — tens of millions ultimately would lose coverage (about 14 million initially, more to follow) while those who could afford it would likely pay higher premiums than now for less coverage. In simple terms, the GOP’s rich cronies would get huge unneeded and undeserved tax breaks while those Americans (including many short-sighted Trump supporters) most in need would be pushed over the edge. What’s not to like about that?

Asked to explain how stripping 14 million Americans of their health care “Makes America Great,” the GOP has no answers, only evasions. And, with good reason — the real scheme — benefit the rich at the expense of the not so rich and poor — is highly unpalatable. Never let truth get in the way of bogus campaign slogans.

And, if the House bill does pass, it clearly will be DOA in the Senate. Based on this week’s performance, it’s unlikely that the House, Senate, and White House could ever reach a mutually satisfactory agreement.

Meanwhile, Obamacare is at its most popular and clearly has dramatically reduced the number of uninsured individuals in the U.S. The AMA, AARP, American Nurses Association, and American Hospital Association have all panned the current House proposal. Not to mention that the longer the House GOP “massages” the bill, the worse its “score” from the nonpartisan Congressional Budget Office gets. The latest version would decrease budget savings by hundreds of millions while still leaving an amazing 24-26 million uninsured.

Obamacare has flaws. But, they could be fixed within the existing framework. However, that would take statesmanship, skill, bipartisan teamwork, and commitment to the public good. Those concepts have simply ceased to be part of the modern GOP agenda.

So, prepare for a “political reality show” tomorrow in the House. Trump has threatened to leave Obamacare in place if the House bill doesn’t pass. Apparently, the theory is that without support from the Executive and Congress, Obamacare will eventually be strangled and die a slow painful death leaving many without insurance but, at least in theory, allowing some of the blame to be shifted to the Obama Administration. No matter how the vote comes out, responsible government and the common good are almost guaranteed to be the losers.

You can read the 8:29 PM Thursday CNN report on the “final ultimatum” from Trump below.

http://www.cnn.com/2017/03/23/politics/house-health-care-vote/index.html

PWS

03/23/17

POLITICO: Breitbart, Other Right Wing Media Mount Unprecedented Personal Attacks On Career Public Servants Doing Their Jobs!

http://www.politico.com/story/2017/03/government-employees-conservative-media-236321

NAHAL TOOSI and ANDREW RESTUCCIA report:

“The articles — which have appeared in Breitbart News, the Conservative Review and other outlets — have alarmed veteran officials in both parties as well as current executive branch staffers. They say the stories are adding to tensions between career staffers and political appointees as they begin to implement Trump’s agenda, and they worry that the stories could inspire Trump to try purging federal agencies of perceived enemies.
The claims posted on the conservative sites include allegations of anti-Israel and pro-Iran bias against staffers at institutions such as the State Department and the National Security Council. Breitbart News, whose former executive chairman Steve Bannon is now Trump’s chief strategist, has even published lists of workers that the president should fire.

Washington veterans say they can’t recall similar targeting of government employees, who are required to stay apolitical and generally shun the spotlight.

“It’s deeply unfair to single people out and question their loyalty,” said William Burns, president of the Carnegie Endowment for International Peace and a former longtime diplomat. “It’s demoralizing for institutions. It’s demoralizing for professionals, and it’s offensive.”
Elliott Abrams, a veteran of the George W. Bush administration who was passed over last month for the role of deputy secretary of state because of his past criticism of Trump, agreed with Burns. Career staffers, he said “are trying to do their jobs and will respond to presidential leadership — including from a new president when an administration changes.”

U.S. civil and foreign service officers have long been seen by Republicans and Democrats as the backbone of government — subject matter experts who help political appointees administer their policy agenda regardless of who serves as commander in chief. But many in the Trump administration and its allies on the right are skeptical of career staffers, believing they are part of an American “deep state” that is working in secret to undermine the president.

Several people who have been targeted did not respond to requests for comment. But one said the information being spread is unnerving, in part because even if Trump’s top aides don’t always believe the reports they read in the conservative press, they may still feel pressure to act from voters in the Republican base who do believe the accounts.”

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Wow, what a grotesque distortion by the right wing media of the critical role of the career civil servant in American Government!

Political appointees in the Executive Branch are usually expected to show of loyalty to the President and the Administration. But, career public servants are non-political, merit-based, appointees who are sworn to uphold the Constitution of the United States, not to be personally loyal to any particular President or Administration. In fact, a requirement for any long-term career civil servant is the ability to serve conscientiously and effectively in administrations of either party which happens to be in power.

That being said, of course a civil servant who fails to carry out direct orders from his or her superiors, including political appointees, or who consciously undermines agency programs is insubordinate and subject to discipline up to and including removal. But, even in those situations, there are legal requirements which must be followed for discipline and removal. Civil servants can not be summarily dismissed just because they worked for or helped carry out the programs of the previous administration, which, after all, was their job.

In most countries outside the Unites States and a few other so-called “Western Democracies,” government is the personal possession of the ruler. He or she controls the mechanisms and staffing of government and hands out government positions as rewards to cronies, family members, and supporters. The devices of government are used largely to reward friends and punish and suppress enemies. The general populace has no real expectation of honesty, integrity, or assistance in any matter. Bribes are a routine requirement for obtaining any favorable action or avoiding any sanction. Indeed, I spent the better part of the last 13 years as an Immigration Judge hearing daily accounts of such abuse from individuals seeking refuge in the United States.

The modern U.S. system of government where civil servants owe allegiance to the Constitution and people of the United States, rather than to our individual political rulers, is the “gem” of our democracy, stability, and success as a nation. An attack on the merit civil service by the right wing media and also, sadly, by some GOP legislators is a direct attack on the foundations of our nation.

PWS

03/22/17

Land Grab — DOJ “Lawyers Up” To Seize Private Property From Trump Supporters Along S. Border — Wall Trumps Property Rights!

https://www.washingtonpost.com/news/wonk/wp/2017/03/21/trumps-big-beautiful-wall-will-require-him-to-take-big-swaths-of-other-peoples-land/

Tracy Jan reports in the Washington Post:

“It’s going to be time consuming and costly,” said Tony Martinez, an attorney who is mayor of the border town of Brownsville, Tex. “From a political perspective, you have a lot of rich landowners who were his supporters.”

Trump, in his recent budget proposal, is calling for the addition of 20 Justice Department attorneys to “pursue federal efforts to obtain the land and holdings necessary to secure the southwest border.” The Justice Department would not expand upon the details. Of the department’s 11,000 attorneys, fewer than 20 currently work in land acquisition. Trump’s budget would double that.

The battle has been fought before. The last wave of eminent domain cases over southern border properties dates back to the 2006 Secure Fence Act authorizing President George W. Bush to erect 700 miles of fencing.

Of the roughly 400 condemnation cases stemming from that era, about 90 remain open a decade later, according to the Justice Department. Nearly all are in the Rio Grande Valley in southwest Texas.

The U.S. government has already spent $78 million compensating private landowners for 600 tracts of property for the construction of the existing pedestrian and vehicle fence, according to Customs and Border Protection. The agency estimates that it will spend another $21 million in real estate expenses associated with the remaining condemnation cases — not including approximately $4 million in Justice Department litigation costs.

. . . .

“It’s not like if you build a wall your problem is gone,” Barnard said. “We need more boots on the ground. More boats, more sensors, more drones that would be more efficient and more productive.”

It remains an open question how much sympathy Trump would have for Barnard’s situation — or that of any other private landowner standing in the way of Trump’s wall.

As a developer, Trump has wielded the power of eminent domain to make way for his properties. In Scotland, he pursued compulsory purchase to force neighbors out of their homes for the Trump International Golf Links near Aberdeen. When that didn’t work, he built a five-foot-tall wooden fence — then tried to make his neighbors pay for it.

Trump also famously tried seizing the property of an elderly Atlantic City widow to make way for a limousine parking lot for his hotel and casino. He has a consistent history supporting the use of eminent domain and praised the 2005 Supreme Court decision — denounced widely by conservatives — that said the government could force property owners to sell their land to make way for private economic developments that benefit the public.

“I happen to agree with it 100 percent,” Trump said during a 2005 Fox News interview. “If you have a person living in an area that’s not even necessarily a good area, and … government wants to build a tremendous economic development, where a lot of people are going to be put to work and … create thousands upon thousands of jobs and beautification and lots of other things, I think it happens to be good.”

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Duh, I thought conservatives had this “thing” about private property and government intrusions.

My prediction: Trump will long be gone, and they will still be litigating, negotiating, and wrangling over the right of way. And, as with many such “eminent domain” projects, by the time the government actually spends the time, money, and loss of good will to obtain the property, the original project will have long become obsolete (as this one in fact already is) and will be consigned to the dustbin, thus making the entire exercise a costly “wild goose chase.” Talk about waste, fraud, and abuse!

PWS

03/22/17

6th Cir. Says BIA Improperly Required Respondent To Establish “Freedom From Surveillance” In Entry Case — MARCIAL LOPEZ V. SESSIONS

http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0063p-06.pdf

“In applying this official-restraint test here, the parties agree that surveillance was the only form of official restraint that the government could have used against Lopez before his arrest. Because only the government customarily possesses evidence of surveillance and because an alien cannot prove what he cannot see, we treat surveillance as an affirmative defense, one that allows the government to show official restraint with respect to an individual who crosses the border without being stopped. In this instance, the Board made no factual finding as to whether Lopez was, or was not, under surveillance from the time he crossed the border until the time the border agents found him. The Board sidestepped the question. It instead found that Lopez’s capture a mile from the border and thirty-one minutes after his crossing did not suffice to prove that Lopez had evaded apprehension and was free from official restraint. That conclusion does not follow from the facts. No evidence shows that border agents surveilled Lopez when he crossed the border. And Lopez testified that he was looking for a hotel to check into, all consistent with the border patrol’s report that said Lopez was in “travel/seeking” when apprehended. A.R. 247. Unless and until the Board finds that Lopez was under surveillance when he crossed the border, that means Lopez was free from official restraint and had evaded inspection.”

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PWS

03/22/17

Spend A Few Minutes With Me Behind The Bench! — Read My “Detained Master Calendar” Vignette From The “Journal on Migration and Human Security!”

Part IV: The Immigration Judge

There is widespread consensus that immigration courts are overwhelmed with immense caseloads, inadequate staffing, and lengthy backlogs (Arnold & Porter 2010). Non-detained immigrants in removal proceedings often wait two to three years to have their cases adjudicated. Cases on the detained docket move much faster. Despite the considerable time it takes to access counsel, determine eligibility for defenses to deportation, and gather evidence, the average life of a pro se detained immigrant’s case totals a mere 23 days (Eagly and Shafer 2015, 63).

In addition to facing institutional pressure to quickly move cases while immigrants are detained at government expense, judges are overburdened with the number of detained cases that must be efficiently adjudicated (Lustig et al. 2008). In 2015, immigration judges adjudicated and completed 51,005 detained cases, constituting 28 percent of all immigration cases completed that year (EOIR 2016, gure 11). Judges have very little face time with immigrants in their courtroom, and about half the time spent with pro se detainees involves requests for continuances to seek counsel (Eagly and Shafer 2015, 61). Furthermore, as administrative law judges, immigration judges have obligations to the respondents who appear pro se and are often required to step into the role of counsel in order to fully develop the record through interrogating, examining, and cross-examining an immigrant and any witnesses.”14

Below, a former immigration judge provides a snapshot of a few minutes on the detained docket.

*****

Prelude15

Wednesday afternoon, detained master calendar. Feeling love and dread. Love: Fast-paced, meaningful, live audience, prepared attorneys, challenging legal questions, teamwork, mediation, problem solving, saving lives, teaching, performing, drama, positive messages, mentoring, full range of life and legal skills in use and on display. Dread: Hopeless cases, sobbing families, watching goodbyes, “not-quite-ready-for-primetime” (“NQRFPT”) attorneys, bad law, missing files, missing detainees, lousy televideo picture of respondent, equipment failures, claustrophobic courtroom, clogged dockets, imprisoned by the system, due process on the run, stress.

Pregame Warm-up

“How many today, Madam Clerk?”

“Fourteen, five bonded, two continued.”

“Thanks, Madam Clerk. Let’s make it happen!”

Showtime.

Politeness, patience, kindness. Listen.

“Please rise, the United States Immigration Court at Arlington Virginia, is now in session, Honorable Paul Wickham Schmidt, presiding.”

Jam-packed with humanity. Live. Uncomfortably hot. Bandbox courtroom. Ratcheting tensions. America’s most important, most forgotten courts. Lots of moving pieces. Put folks at ease. Performance begins.

The Damned

“We’re on the record. This is Judge Paul Wickham Schmidt at the United States Immigration Court in Arlington, Virginia; we’re on a televideo hookup with the DHS Farmville Detention Center, the date is . . . , and this is a master calendar removal hearing in the case of Ricardo Caceres, File number A123 456 789. Counsel, please identify yourselves for the record.”

“Bonnie Baker for the respondent, Mr. Caceres.”

“April Able for the DHS.”
“What are we here for Ms. Baker?”

“Your Honor, we’re seeking a reasonable bond for my client, who has been in the United States for more than two decades. He’s a family man, the sole support of his wife and four US citizen children, who are sitting right behind me. He’s a skilled carpenter with a secure job. He pays his taxes. He’s a deacon at his church. His employer is here this afternoon and is willing to post bond for him. The respondent’s wife is out of work, and the family is on the verge of being evicted from their apartment. The oldest son and daughter are having trouble in school ever since their father was detained. The baby has developed asthma and cries all night.”

“I assume he’s in detention for a reason, Ms. Baker. What is it?”

“Well, Your Honor, he had a very unfortunate incident with one of his co-workers that resulted in his one and only brush with the law. I think he probably got some questionable legal advice, too.”

“What’s the conviction?”
“Aggravated assault with a deadly weapon.”
“Sentence?”
“18 months, with all but three months suspended, Your Honor.”

“Hmmm. Doesn’t sound very promising. What’s your take, Ms. Able?”

“He’s an aggravated felon, Your Honor, under the BIA and Fourth Circuit case law. Therefore, he’s a mandatory detainee. May I serve the records of conviction?”

“Yes, thank you Ms. Able. Isn’t Ms. Able right, Ms. Baker? He’s mandatory detained under the applicable law, isn’t he?”

“Well, Your Honor, technically that might be right. But we’re asking you to exercise your humanitarian discretion in this extraordinary situation.”

“As you know, Ms. Baker, I’m not a court of equity. The law gives me no discretion here. So, based on what you’ve presented, no bond. What’s next? Are you admitting and conceding removability and filing for relief?”

“The family wanted me to ask for bond, Your Honor.”

“You did, Ms. Baker. What’s the next step?”

“Well, the respondent has instructed me that if you didn’t grant a bond, he just wants a final order to go back to Mexico. He’s been in detention for some time now, and he just can’t wait any longer.”

“You’re sure that’s what Mr. Caceres wants to do?”

“Yes, Your Honor.”
“Mr. Caceres, this is Judge Schmidt, can you hear me?”

“Yes.”

“Because of the crime you committed, the law doesn’t permit me to set a bond for you. Your lawyer, Ms. Baker, tells me that you have decided to give up your rights to a full hearing and be removed to Mexico. Is that correct?”

“Yes, Your Honor. I can’t stand any more detention.”

“You understand that this is a final decision, and that once I enter the order you will be removed as soon as DHS can make arrangements.”

“Yes, judge, I understand.”

“And, you’ve discussed this with your family, sir?”

“I just want to go — no more detention. Can I go tomorrow?”

“Probably not. But the assistant chief counsel and DHS officer in court are noting that you want to go as soon as can be arranged.”

“Your Honor, may his wife and children come up and see him for a moment?”

“Yes, of course, Ms. Baker. Please come on up folks.”

“Your Honor, the respondent’s wife would like to make a statement to the court.”

“I don’t think that’s prudent, Ms. Baker. She’s already hysterical, and there is nothing I can do about the situation, as I’m sure you’ll explain to her. We have lots of other people waiting to see me this afternoon.”

“Understood. Thanks, Your Honor.’

“You’re welcome, Ms. Baker. You did the best you could. Take care folks. I’m sorry you’re in this situation. Mr. Caceres, good luck to you in Mexico. Please stay out of trouble. The clerk will issue the final order. Who’s next, Madam Clerk?”

The “Not-Quite-Ready-For-Prime-Time” (“NQRPT”) Lawyer

“Mr. Queless, we’re here for your filing of the respondent’s asylum application.”
“Um, Your Honor, I’m sorry I don’t have it with me. I didn’t have a chance to get to it.”

“Why’s that, Mr. Queless? Your client has been in detention for some time now, and I gave you a generous continuance to get this done.”

“That’s very true, Your Honor, but the power was out at our office for a day, and my son crashed his car and I had to take care of the insurance and the repairs.”

“All right, come back in three weeks with your filing, without fail.”

“Can I come back next week, Your Honor? My client has been in detention a long time.”

“I know that, counsel. That’s why I wanted you to file today, so we could set an individual date. I’m already overbooked for next week, and I can’t justify putting you in front of others who are prepared.”

“Ah, could we just set an individual date now, Your Honor, and I’ll promise to file within a week?”

“That sounds like a really bad idea, Mr. Queless, in light of actual performance to date. I want to see the completed filing before I assign the individual date. That’s how we do things around here. You’ve been around long enough to know that.”

“Excuse me, Your Honor, but may I be heard?”

“Yes, you may, Ms. Able.”

“With due respect, Your Honor, at the last master calendar you said this would be the final continuance. This detained case has been pending for months, and you have given counsel a more than reasonable opportunity to file for relief. At this point, the DHS must request that you deny any further continuance and move that you enter an order of removal.”

“Well, I sympathize with your position, Ms. Able. I did say this would be the last continuance, and I’m as frustrated as you are. But I note that the respondent is from a country where we routinely grant asylum, often by agreement or with no objection from your office. Therefore, I feel that we must get to the merits of his claim. Let’s do this. Mr. Queless, I’m going to give you an ‘incentive’ to get this filed. If the I-589 is not complete and ready to file at the next hearing — no more excuses, no more ‘dog ate my homework’ — I’m going to agree with Ms. Able, grant her motion, and enter an order of removal against your client. Do you understand?”

“Yes, Your Honor. I’ll have it here at the master in three weeks.”

“Anything further from either counsel?”

“Nothing from the DHS, Your Honor.”

“Nothing from the respondent, Your Honor.”

“Hearing is continued.”

The Skeptic

“How are you this afternoon, Mr. Garcia?”

“Okay.”

“Spanish your best language?”

“Yes.”

“Is this your first appearance before me?”

“Yes.”

“You’re going to look for a lawyer before we proceed with your case?”

“Do I need a lawyer, judge?”

“Depends on what you want, Mr. Garcia. I can send you back to Guatemala at government expense or give you voluntary departure if you wish to pay your own way and avoid having a formal removal order on your record. Is that what you want?”

“Oh, no, judge. I don’t want to go back.”

“Then, you need a lawyer, sir. Officer, please give Mr. Garcia the legal services list. Mr. Garcia, this is a list of organizations in Virginia that might be willing to represent you at little or no charge if you can’t afford a lawyer. You should also check with family and friends to see if they can help you nd a free or low-cost lawyer to take your immigration case. I’ll set your case over for three weeks to give you a chance to look.”

“Can I come back next week?”

“You won’t be able to find a lawyer by then, sir. Take the three weeks. If you don’t have a lawyer by then, we’ll go forward without one.”

“Okay, Your Honor.”

“Good luck in finding a lawyer, Mr. Garcia. The clerk will issue the notices. Who’s next, Madam Clerk?”

Postlude

Out of court. Satisfied. Tired. Drained — like a Steph Curry three-pointer. Find my colleagues. Fresh air. Walk in the park. Talk sports, politics, weather. Visit Starbucks. Final refill. Recharge batteries. Master tomorrow morning. Fifty non-detained. Too many. The beat goes on. Walking free. Not an “alien.” Glad. Lucky. Thankful.

14 Immigration and Nationality Act (INA) § 240(b)(1).
15 This account is written by Hon. Paul Wickham Schmidt, who served as the chairman of the Board of Immigration Appeals before being appointed to the Arlington Immigration Court in May 2003, where he served as an immigration judge for 13 years before recently retiring from that position. While the names he has provided in this account are entirely fictional, the situations he describes are based on his own wealth of experience adjudicating cases in immigration court.

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

The full citation is:

Ahmed, Saba; Jordan, Rachel; Appelbaum, Adina, The Human Cost of IIRIRA — Stories From Individuals Impacted by the Immigration Detention System, 5 JMHS 194, 206-11 (2017). Co-author Adina Appelbaum is a former Arlington Immigration Court legal intern and one of my “all-star” students from “Refugee Law & Policy” at Georgetown Law. Read the entire collection of interesting and moving human stories here:

80-263-2-PB

PWS

03/22/17

WISCONSIN STATE JOURNAL: Betrayal! Ryan, GOP “Gift” To Wisconsin Seniors: Jacked Up Premiums, Suffering, Premature Death! I/O/W “Pay More For Less”

http://host.madison.com/wsj/news/local/health-med-fit/report-wisconsin-s-older-adults-would-pay-thousands-more-under/article_9fdb9c69-1339-5c33-9c77-0bf868071cde.html#utm_source=host.madison.com&utm_campaign=/email/&utm_medium=email&utm_content=26CD42536544E247751EC74095D9CEDC67E77EDB

David Wahlberg reports:

“In Madison, a 64-year-old currently pays $1,852 a year through “Obamacare” after receiving $5,991 in tax credits, according to a Citizen Action of Wisconsin report released Tuesday.

Under the Republican plan, the same person would pay $7,764 a year in premiums after $4,000 in tax credits. That is $5,912 — or more than three times — more, the report says.

Republicans’ proposed American Health Care Act, which the House is expected to vote on Thursday, would reduce tax credits for some groups and allow insurers to charge older adults more.

Those changes mean a 64-year-old in La Crosse would have net premiums of $14,515 a year, up from $1,519 now, the Citizen Action report says. That is $12,996 — or more than eight times — more.

The Republican plan would “result in people suffering and dying prematurely,” said Dr. Cynthia Haq, a professor of family medicine and population health sciences at the UW School of Medicine and Public Health.

“People will have to forgo health insurance coverage,” Haq said. “They will not seek care. They will not get preventive services. They will not be able to manage their chronic diseases. As a result, they’ll show up in the emergency departments of hospitals in extreme crisis.”

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As I have said previously, it’s going to be a crowded field for “King of the Swamp” honors this year, but Ryan with his inane health care proposal — which even his own party is balking at from both ends of the spectrum — certainly has his eye on the title!

How many will have to suffer and die before the folks in his congressional district finally get him “off the dole” and give him a chance to make his way by doing something more productive in the “real world” that he so much admires yet has avoided for most of his adult life?

PWS

03/21/17

RELIGION: Pastor Corey Fields In Baptist News Global: Simple Term For Trump Budget: “Sin”

https://baptistnews.com/article/author/coreyfields/

Fields writes:

“More and more for machines that kill, less and less for things that invest in our future and enhance our society. There is a theological word for this kind of thing: sin.

Let me offer two important disclaimers. First, the above comparisons should not in any way be interpreted as a devaluing of our brave men and women in the armed services, nor disrespect for the incredible burden that they and their families bear, nor an illusion that we do not need a military. Secondly, I am not in any way suggesting that there is not waste and abuse present in other areas. Inefficiency is a constant problem in government, and no program holds the answers to all our society’s ills.

The above comparisons simply serve to illustrate a pretty obvious truth: we have a problem of priorities.

It is not just a question of politics and budgeting, however. It is spiritual issue. Martin Luther King Jr. said, “A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death.”

. . . .

Are we to become a gutted fortress with thick, fortified walls around the perimeter but with no way of life worth defending left on the inside? This is a spiritual issue, and our current reality is something against which Scripture paints an entirely different vision.

Outside the United Nations Headquarters in New York, there is a statue created by Evgeniy Vuchetich and gifted to us by the Soviet Union in 1959 as “a symbol and expression of the desire … for general disarmament.” The sculpture is a visual representation of the prophet Micah’s vision of God’s reign: “They will beat their swords into plowshares and their spears into pruning hooks. Nation will not take up sword against nation, nor will they train for war anymore.” God has placed us here to proclaim and live this promise of a new world, what Jesus called “the kingdom of God.”

We have a spiritual problem. It is not a hidden problem; it is in plain sight in our budgets, priorities and rhetoric. But there is another vision, another way; and it’s up to the people of God to be its champion.”

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PWS

03/22/17

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