"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
The Washington Post reports:
“Wilders nose-dived in recent weeks after topping opinion polls for most of the past 18 months, as Dutch voters appeared to turn away from an election message that described some Moroccans as “scum” and called for banning the Koran and shuttering mosques.”
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PWS
03/15/17
http://www.huffingtonpost.com/entry/trump-travel-ban-blocked_us_58c99d18e4b00705db4bc38f
Report from HuffPost:
“A federal judge in Hawaii has placed a nationwide hold on key aspects of President Donald Trump’s second attempt at a ban on travel ― a scaled-back version that targeted all non-visa holders from six Muslim-majority countries, as well as a halt on the U.S. refugee resettlement program ― just hours before the new restrictions were to take effect.
U.S. District Judge Derrick Watson said sections of the new travel order likely amounted to a violation of the First Amendment’s establishment clause, which forbids the government from disfavoring certain religions over others.
Watson gave short shrift to the Trump administration’s argument that the new restrictions applied to a “small fraction” of the world’s 50 predominantly Muslim nations ― and thus could not be read to discriminate Muslims specifically.
“The illogic of the Government’s contentions is palpable,” Watson wrote. “The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.”
The judge also discarded the government’s defense that the text of the new executive order was silent on religion, supposedly solving constitutional defects identified by courts with the first order.
“Any reasonable, objective observer would conclude … that the stated secular purpose of the Executive Order is, at the very least, secondary to a religious objective of temporarily suspending the entry of Muslims,” Watson wrote.”
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Here is Judge Watson’s written decision in State of Hawaii v. Trump:
http://www.hid.uscourts.gov/files/announcement142/CV17-50%20219%20doc.pdf
More bad news for the Administration — the Third Circuit has enjoined the removal of an Afghani interpreter with a visa who was denied admission and allegedly “withdrew” his application. Read about it in the WashPost here:
https://www.washingtonpost.com/national/immigration-authorities-to-deport-afghan-man-who-helped-us-government/2017/03/15/a7eecb9a-098e-11e7-a15f-a58d4a988474_story.html?hpid=hp_rhp-banner-main_travelban1010am:homepage/story&utm_term=.051c21ef8afe
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It’s early in the game on the Administration’s uncompromisingly hard line approach to immigration issues. So far, however, they have racked up an impressive string of losses from coast to coast from Article III Judges all across the spectrum.
In other words, the bombastically inappropriate statements made by Trump and his advisors have “poisoned the well,” and the Administration is probably going to find it difficult to “un-poison” it. And, as long as guys like Bannon, Sessions, Miller, and Kobach are calling the shots, that might never happen.
As some have suggested, perhaps the President and his advisors need a type of “Executive Miranda Warnings” before they shoot off their mouths (or their Twitters) in public: “Everything you say (or Tweet) can and will be used against you.”
The next stop for “Travel Ban 2.0” probably will be the 9th Circuit. But, since the Administration already lost there on its appeal of the TRO in State of Washington v. Trump, I wouldn’t hold my breath waiting for the 9th Circuit to lift the TRO. Like President Obama with the “DAPA Fiasco,” President Trump is learning that U.S. District Judges wield considerable power in our system. As one of my colleagues once said, “U.S. District Judges are the last living potentates.”
None of this bodes well for the Administration’s next ill-advised plan — to ramp up removals, increase the use of immigration detention, maximize “expedited removal,” and reduce what’s left of the U.S. Immigration Court to the equivalent of two-shift assembly line workers churning out removal orders. Chances are that the Article III Courts are going to have something to say about that too. And, unless the Administration moderates its approach, it’s not likely to be anything they like.
PWS
03/15/17
https://object.cato.org/sites/cato.org/files/pubs/pdf/immigration-brief-1_1.pdf
“Legal and illegal immigrants are less likely to be incarcerated than natives. Our numbers do not represent the total number of immigrants who can be deported under current law or the complete number of convicted immi- grant criminals who are in the United States, but merely those incarcerated. This report provides numbers and demographic characteristics to better inform the public policy debate over immigration and crime.”
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The report is called Criminal Immigrants: Their Numbers, Demographics, and Countries of Origin, and it was issued on March 15, 2017. You can read the full report with charts, graphs, and citation of authorities at the link.
Many thanks to Nolan Rappaport for passing this along (although he doesn’t necessarily agree with the report’s conclusion).
PWS
03/15/17
https://www.wsj.com/articles/america-doesnt-have-europes-immigration-problems-1489530039
Riley writes:
“America doesn’t have that problem because it has done things differently. Here, the emphasis is on shared ideals rather than shared cultural artifacts. The U.S. model for assimilation has been more successful because of the country’s value framework, which is the real immigrant magnet. Longitudinal studies, which measure the progress of the same individuals over time, show that U.S. immigrants today continue to assimilate despite the best efforts of bilingual education advocates and anti-American Chicano Studies professors. As with previous immigrant waves, different groups progress at different rates, but over time English usage, educational attainment and incomes do rise.
Mr. King may fear immigrant babies, but he should be more careful not to confuse his personal problems with America’s. Given the coming flood of baby-boomer retirees over the next two decades, those high birthrates are just what the pediatrician ordered.”
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Generally, Riley is on the right track. His observations match my experience in Immigration Court where most of the individuals coming before me shared the same values I had: stability, safety, a future for their kids, opportunity for political and economic participation, community and often religious involvement. In other words, being part of a society that is generally functional, rather than dysfunctional as in many of the countries migrants flee.
But, I didn’t appreciate Riley’s snide remark about bilingual education. That’s perhaps because my daughter Anna has taught English Language Learners and still works with migrant populations in the Beloit, WI Public School System.
Bilingualism helps families to learn English and communicate, particularly to the older generation and friends and family abroad. Individuals who are bilingual and at home in different linguistic situations have more satisfying lives and better economic opportunities.
Indeed, America is far behind many other developed countries in bi- and tri-lingualism. It was not uncommon in the Arlington Immigration Court to encounter respondents who were fluent in a number of languages, although for obvious reasons most preferred to have their “merits” court hearings in their “best” language.
That’s just one of the reasons why many “Dreamers” with biglingual skills are well-positioned to be our leaders and innovators of the future. And, we’re fortunate to have them contribute their talents to our society. We’re going to need the talent and energy of all of our young people as well as births to continue to prosper in the future.
PWS
03/15/17
“President Trump signed a new executive order on Monday [March 6] to ban all refugees from entering the United States for 120 days. The order also cuts the refugee program in half, capping it at 50,000 people for the 2017 fiscal year, down from the 110,000 ceiling put in place under President Obama.
The United States accepted 84,994 refugees from 78 different countries in 2016. The order also temporarily halts new visas for six countries: Iran, Libya, Somalia, Sudan, Syria and Yemen.”
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There is an “interactive map/chart” in the full article at the link.
PWS
03/15/17
http://www.politico.com/agenda/story/2017/03/world-prepares-to-move-on-without-us-on-trade-000361
Adam Behsudi writes:
“Here’s what happens when the U.S. pulls out of a major trade deal: New Zealand seizes the opportunity to send more of its milk and cheese to China. Japanese consumers pay less for Australian beef than for American meat. Canadians talk about sending everything from farm products to banking services to Japan and India.
President Donald Trump dumped the 12-nation TPP right after he took office, saying it was a “horrible” deal and blaming it for sucking American jobs abroad. But now other countries are ready to rush into the vacuum the U.S. is leaving behind, negotiating tariff-cutting deals that could eliminate any competitive advantage for U.S. goods.
That phenomenon is on stark display this week in Chile, where more than a dozen Pacific Rim countries are meeting in a beachside hotel to talk about moving on in the post-TPP era. China, not one of the original signers of the TPP, is here looking to cut deals. So are Canada and Mexico. And while the U.S. would normally send a high-ranking trade official to this kind of gathering, the Trump administration, is just sending an envoy from the embassy in Santiago.
Competitors say they have no choice but to take the money U.S. businesses would have earned otherwise.
“We are not trying to take market share from the U.S. It’s more like you are putting money on the table and pushing it towards us,” said Carlo Dade, director of trade and investment policy for the Canada West Foundation, a Calgary-based think tank.”
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PWS
03/15/17
“Donald Trump’s presidential campaign capitalized on a familiar brand of nativist anti-immigrant slander usually reserved for our nation’s most desperate times. It was an ugly old vein to mine, but now that he’s managed to strike electoral gold there, he is not wrong to view his election as a mandate to carry out his promise to enforce federal immigration law to its fullest extent. This would be alarming to friends of the Constitution under any circumstances, but especially so given Trump’s open embrace of white supremacy—as a concept, if not a movement—in the primaries. We haven’t encountered such an openly bigoted presidential campaign on the right since Pat Buchanan’s last failed insurgent run at the GOP nomination in 1996, and we have never seen an avowedly white-nationalist leader accede to the Oval Office.
Nor should any of us expect the chastening experience of actual governing to temper his outlook. Trump has proven at every opportunity that he is all but ineducable about even the simplest details of how immigration to the United States actually works. And this, it turns out, is probably one of the few things he has in common with a considerable majority of Americans.”
. . . .
The immigration system I keep hearing about from pundits and politicians (all of whom should know better) is almost entirely unmoored from actual fact. It seems to be a chimerical pastiche of the one we had before Ellis Island closed, the one we had just before the moon landing, and some sort of rosy Tomorrowland fantasy in which visas would be awarded to the undocumented if only they would do it the right way. This is not the system I work with every day.
When a white, native-born American says, “my family came here the right way,” what the speaker almost invariably means is that one or more of his ancestors came to the United States without a visa during a time of virtually unrestricted European migration. They boarded a trans-Atlantic ocean liner, stood in line at an immigration inspection station for the better part of a day, answered a standard series of twenty-nine questions, were subjected to a medical exam, and were admitted indefinitely to the United States. That’s how my Scottish great-grandparents did it in 1916. If you were born in the United States with European ancestors, it’s probably how you came to be here too. That system ended in 1924. Its successor, the “national origins” quota system (a more restricted but still relatively open “line”), was abolished in 1965. But I still regularly meet well-meaning fellow citizens who believe that anyone who deserves a chance can simply “fill out the forms,” “get in line,” and “come the right way, like my family did.” At which point, I have to patiently explain that they can’t.
For most of my undocumented neighbors, in East Boston and beyond, there are no forms. There is no line. There never was. Telling an undocumented Mexican dishwasher that he should “wait in line, like my family did” is no more realistic than advising him to switch to the same model of iPhone your great-grandfather used. Yet the lie persists, with nearly every presidential candidate since George H. W. Bush invoking the imaginary “line.”
. . . .
[Bill] O’Reilly was too charitable. There is no reason to believe that Trump has ever understood the basic precepts of due-process protection. Commitment to due process would have been fundamentally incompatible with Trump’s record as a casino magnate, a New York City landlord, or an authoritarian game show host given unlimited license to “fire” contestants at whim.
Trump has signaled the likely place of due process in his immigration system by promising to immediately deport 2 to 3 million “criminal aliens.” This staggering number, nearly the entire urban population of Chicago, would represent more deportations than Obama (the current record-holder) completed in eight years, and more than twice as many as were carried out during Operation Wetback.
. . . .
In fifty-eight immigration courts nationwide, immigration judges are operating (per a recent study) at a degree of mental stress equivalent to that of an emergency-room doctor. “This case,” sneered federal judge Richard Posner in a recent dissent, “involves a typical botch by an immigration judge.” Posner, punching down from the lofty heights of a federal appeals court, went on to concede graciously that the immigration court’s status as “the least competent federal agency,” might have something to do with congressional underfunding and the resultant “crushing workloads.”
Our nation’s roughly 250 immigration judges [now approximately 305] are now responsible for managing a record backlog of more than five hundred thousand pending deportation cases, with thousands more pouring into the system each day. The judges I appear before in the Boston immigration court are humane and learned experts who work long hours, in circumstances that couldn’t be less familiar to Judge Posner, but they are as susceptible to human error as any judge anywhere.
In an executive order signed within days of his inauguration, Trump authorized Congress to triple the number of Immigration and Customs Enforcement agents on the ground. He has made no mention of any plans to extend the courts the same courtesy, but this new flow of cases simply cannot be sustained within today’s judicial plumbing.”
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Cameron’s full, hard-hitting article is definitely worth a read. And, as he points out, quite sadly, it’s likely to get much worse from a due process standpoint before it gets better.
I also think he is right that few U.S. Court of Appeals Judges would be able to survive working as U.S. Immigration Judges under today’s incredibly difficult circumstances and conditions.
PWS
03/15/17
Robinson writes:
“White supremacism was never banished from American political thought, just shoved to the fringe and hushed to a whisper. Now, in the Age of Trump, it’s back in the mainstream and ready to roar.
Witness the words of Rep. Steve King (R-Iowa) on the subject of immigration: “Culture and demographics are our destiny. We can’t restore our civilization with somebody else’s babies.” King offered these sentiments Sunday in a tweet expressing solidarity with Geert Wilders, an openly racist and Islamophobic Dutch politician who has a chance of becoming prime minister in elections this week. Wilders is someone who “understands,” King wrote.
And we understand just what King meant. Former Ku Klux Klan leader David Duke certainly got the message, using his vile Twitter account to proclaim, “GOD BLESS STEVE KING!!!”
. . . .
“Immigrants — both voluntary and involuntary — have shaped this nation since long before its founding. The first Africans were brought here in bondage in 1619, one year before the Mayflower. Americans have never been a single ethnicity, speaking a single language, bound by the centuries to a single patch of land. We have always been diverse, polyglot and restless, and our greatness has come from our openness to new people and new ideas.
King’s distress about birthrates can be read only as modern-day eugenics. If he is worried about the coming day when there is no white majority in the United States, he has remarkably little faith in our remarkable society — or in the Constitution that he, as a member of Congress, is sworn to support and defend.
President Trump played footsie with the white supremacist movement during his campaign. His chief strategist, Stephen K. Bannon, waged civilizational war when he ran the Breitbart News site. Trump could definitively denounce King’s racism with a statement or a tweet, but so far his silence is deafening.”
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I’m glad that Robinson makes the point that America literally was developed, founded, and built on the backs, free labor, and talents of African American “involuntary” immigrants. (In my Refugee Law and Policy course at Georgetown Law we referred to them as “forced migrants.”)
In fact, of our first five Presidents, only John Adams was self-supporting. The others owed their livelihood to the free labor provided by enslaved African Americans. Sad, but true.
PWS
03/15/17
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/08/13-72682.pdf
Judge Wardlaw for the majority:
“In Castro-Martinez, we also failed to consider the difference between a country’s enactment of remedial laws and the eradication of persecutory practices, often long ingrained in a country’s culture. Rejecting Castro’s claim that, in Mexico, a systematic pattern or practice of persecution against homosexuals remained, we found Castro’s evidence unpersuasive “in light of recent country reports,” which showed that the “Mexican government’s efforts to prevent violence and discrimination against homosexuals . . . ha[d] increased in recent years.” Castro- Martinez, 674 F.3d at 1082.
Mexico is to be lauded for its efforts. But it is well recognized that a country’s laws are not always reflective of actual country conditions. It is not unusual that a country’s “de jure commitments to LGBTI protection do not align with the de facto reality of whether the State is able and willing to provide protection.” Brief for UNHCR as Amicus Curiae at 4. And we have recently recognized that Mexico has experienced “an increase in violence against gay, lesbian, and transgender individuals during the years in which greater legal protections have been extended to these communities.” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1081 (9th Cir. 2015) (emphasis in original).
Moreover, the anti-discrimination efforts discussed in Castro-Martinez seem to have been made by the national government, and thus do not necessarily reveal anything about the practices within state or municipal jurisdictions. See Madrigal v. Holder, 716 F.3d 499, 507 (9th Cir. 2013) (noting that while Mexico’s national government was willing to control the drug cartel that attacked the petitioner, it was not necessarily able to do so, in part because state and local officials were involved with drug traffickers).”
Writing for the dissent, Judge Bea (who claims to be the only U.S. Circuit Judge to actually have been the subject of deportation proceedings), joined by Judge O’Scannlain:
“I respectfully dissent from the majority opinion because it usurps the power of the Board of Immigration Appeals (BIA) to determine facts. It does this by reciting, but ultimately departing, from the “substantial evidence” standard which states that agency “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (emphasis added).”
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The Administration apparently believes that cases like this are going to be resolved on an “assembly line” operation with U.S. Immigration Judges sitting in “shifts” in detention centers from 6 AM until 10 PM.
While notable for its potential precedential effect, this case is not particularly unusual in terms of the difficult factual and legal issues that arise daily in U.S. Immigration Court in asylum cases coming from countries “south of our border.” This happened to be Mexico, but LGBT cases involving individuals from the Northern Triangle are quite common, even in jurisdictions like the Arlington Immigration Court.
I note that the amicus views of the UNHCR fare much better in the majority’s decision than they typically do these days at the BIA. For example, in Matter of M-E-V-G-, 26 I&N Dec. 227, 248 (BIA 2014), the BIA summarily “blew off” the views of the UNHCR on the issue of “particular social group.”
It’s also interesting that notwithstanding the dissent, the BIA actually lacks de novo fact finding authority of its own. Following a regulation change during the “Ashcroft era,” that authority belongs to the Immigration Judge with review by the BIA for “clear error.”
PWS
03/14/17
After discussing and dismissing the four bases cited by Hawaii, Nolan concludes:
“Hawaii’s four claims against the president’s travel ban are thus unfounded and the state is going to fail in its attempt to stop the travel ban.”
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Read Nolan’s full article with citations in The Hill at the link. The case is State of Hawaii v. Trump, USDC, HI.
PWS
03/14/17
Julianne Hing writes in CAAM:
“In the last half of the 19th century, as Reconstruction was collapsing and the country slogged through an economic depression in the 1870s, politicians found easy scapegoats in Chinese immigrants. As a statesman, California Governor Bigler “wrangled a working class white rage at the fact that the Gold Rush had not been a stairway to heaven,” Burns says, “and all this transmogrified into hatred of the ‘other.’” Bigler called Chinese immigrants ignorant about and uninterested in joining American society, and described them as inferior, dishonest, and unassimilable in public addresses.
Passionate anti-Chinese sentiment manifested itself in the passage of punitive local ordinances that sought to criminalize or tax everyday Chinese life. San Francisco’s queue ordinances of the 1870s forbade city prisoners from keeping long braids. Pole ordinances prohibited the use of poles to balance vegetables and other wares; the use of a pole to balance heavy loads was a uniquely Chinese practice. Chinese immigrants were even prohibited from testifying in court against whites.
By the time the Chinese Exclusion Act became the law in 1882, Chinese immigrants were firmly established in the popular imagination as villainous culprits responsible for the country’s every economic woe. The law only codified a seething anti-immigrant sentiment that Americans latched on to. The law made it illegal for Chinese immigrants to come to the U.S., it made it illegal for those who left to re-enter the U.S., and it made it illegal for Chinese nationals to become U.S. citizens. The law was overturned only in the 1940s, and it wasn’t functionally dismantled until 1965 during the Civil Rights era — just 50 years ago.
“It was democratic,” explains historian Renqiu Yu in the film. “It was legal. But it was wrong.” That breach between legality and justice is exactly what Burns and Li-shin Yu sought to explore in their film. “Here’s a story that makes you think about how the way that democracy and jurisprudence work is not equal to justice,” Burns says.
The other chapter of the story of the Chinese Exclusion Act is one of resistance. Li-shin Yu says that in the years of making this film, the stories of resistance stood out to her over and over. “The greatest thing to have learned is that across time, the Chinese were standing up every step of the way,” Yu says.”
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Sadly, some of this sounds all too familiar. I could just see a racist/white nationalist politician like Rep. Steve King (R-IA) playing the role of Gov. Bigler. It’s important for the rest of us to say “never again.”
PWS
03/14/17
From: Manny Rivera <mrivera@wearerally.com>
Date: Tue, Mar 14, 2017 at 2:30 PM
Subject: BREAKING: Federal Court Finds Jurisdiction to Hear DREAMer Case
To: Manny Rivera <mrivera@wearerally.com>
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FOR IMMEDIATE RELEASE
March 14, 2017
Media Contact:
Manny Rivera, mrivera@wearerally.com, (323) 892-2080
FEDERAL COURT FINDS JURISDICTION TO HEAR CONSTITUTIONAL CLAIMS BROUGHT BY DREAMER DANIEL RAMIREZ MEDINA
Magistrate Judge James P. Donohue Recommends Court Hear Arguments on the Constitutionality of Mr. Ramirez’s Arrest and Detention; Denies Petitioner’s Motion for Immediate Conditional Release
Government’s Attempt to Throw Out Petitioner’s Claims Dismissed by the Court
MEDIA ALERT: Press Teleconference Call with Mr. Ramirez’s Legal Team Scheduled for TODAY at 3:30pm Pacific/6:30pm Eastern
Dial-In: (855) 557-3561
Conference ID: 89214839
SEATTLE, Wash. March 14, 2017 — Chief U.S. Magistrate Judge James P. Donohue today issued a recommendation denying the Government’s Motion to Dismiss, specifically acknowledging federal district court jurisdiction in the habeas petition filed by Daniel Ramirez Medina. Because of uncertainty of the impact of DACA, the court did not order the immediate release of Mr. Ramirez, the DACA beneficiary unconstitutionally detained by Immigration and Customs Enforcement (“ICE”) in Seattle for more than a month, but deferred ruling on the merits of whether he should be released while the merits of the habeas petition is being adjudicated. Mr. Ramirez’s release, called for by immigration advocates, community leaders and Members of Congress from throughout the country, was requested by Mr. Ramirez pending the final determination of the merits challenging his unconstitutional detention. Counsel for the petitioner believes that DACA supports his immediate release.
“We are pleased that the court rejected the government’s effort to evade judicial review,” said Theodore J. Boutrous, Jr., a partner at Gibson, Dunn & Crutcher, and a member of Mr. Ramirez’s legal team. “This is an important ruling because one of the core purposes of habeas corpus is to ensure judicial review of executive detentions and hold the executive branch accountable.”
“But at the same time, Daniel has been wrongfully detained for too long,” added Mr. Boutrous. “We plan to immediately file an objection to the magistrate judge’s denial of our motion seeking immediate conditional release. The government itself has already determined that he represents no threat to public safety or national security. Dreamers like Daniel who have followed the rules and kept their part of the DACA promise deserve to have their rights recognized and vindicated by the court. This is especially true where, as here, the government has failed to keep its promise, and has provided no independent evidence to support its baseless claims.”
In his findings, Judge Donohue noted:
“The Ninth Circuit has not yet decided whether a district court has the authority to conditionally release a habeas petitioner pending a decision on the merits of the petition. United States v. McCandless, 841 F.3d 819, 822 (9th Cir. 2016), pet. for cert. filed (Feb. 16, 2016) (citing In re Roe, 257 F.3d 1077, 1080 (9th Cir. 2001) (per curiam)). Authority from other circuits strongly supports the conclusion that this Court may exercise such authority in the appropriate circumstances.”
The Court also recommended that because Mr. Ramirez remains in custody, and because there are nearly 800,000 DACA beneficiaries who are interested in the outcome of these proceedings, that the merits phase of the case be treated on an expedited schedule.
The case could have broader implications on other DACA beneficiaries, as the lawsuit calls on the court to issue a declaratory judgement that Mr. Ramirez and other Dreamers have constitutionally-protected interests in their status conferred under the Deferred Action for Childhood Arrivals (“DACA”) program.
“Our objective all along has been to end this DREAMer’s nightmare so that Daniel Ramirez may return to his family and his three-year-old citizen child,” said Mark Rosenbaum, director of Opportunity Under Law at Public Counsel, and a member of Mr. Ramirez’s legal team. “While the court today has taken one step towards justice, the government’s attempts to delay justice for this young man who has been detained now for over a month and never been charged with any crime sends an unmistakable message that the word of executive branch cannot be trusted, that it can ‘play bait and switch’ with the life of a DACA recipient.”
Mr. Ramirez was brought to this country as a child and knows no home but the United States. He gave the government sensitive personal information, paid a substantial fee, and voluntarily subjected himself to rigorous background checks—twice—as part of the DACA program, most recently in May 2016. He has no criminal history and has not been charged with any unlawful conduct. Despite this, he was arbitrarily arrested without a warrant or probable cause. The U.S. Government has had more than a month to submit any evidence of wrongdoing or criminal activity, yet no evidence has been presented because no evidence exists.
“Daniel has been in detention for more than a month without ever being charged with a crime, and to this day the government has shown us no evidence that he has done anything wrong” said Ethan Dettmer, a partner at Gibson, Dunn & Crutcher, and a member of Mr. Ramirez’s legal team. “No one should be treated that way, and it is unconstitutional. We are arguing the merits of this case in federal court.”
At a hearing in Seattle last Wednesday, counsel for Mr. Ramirez presented oral arguments on why federal court is the only appropriate venue to hear and decide the habeas petition challenging the constitutionality of his arrest and extended detention. In his decision, Judge Donohue agreed with the Petitioner’s arguments that federal court has jurisdiction over this case because of the critical constitutional issues at stake.
Mr. Ramirez has now been subjected to unconstitutional detention for 32 days without being charged with a crime and with no evidence presented to justify his continued detention.
Petitioners will file a written objection to the Magistrate Judge’s Report and Recommendation by no later than March 28, 2017.
A national press teleconference call with members of Mr. Ramirez’s legal team is scheduled for 3:30pm Pacific/6:30pm Eastern. Counsel will be available during this call to discuss today’s decision and answer questions from members of the media. To view the court’s Report and Recommendation, click here.
Press Teleconference with Counsel for Daniel Ramirez Medina—Dial-In Information:
Dial-In: (855) 557-3561
Conference ID: 89214839
###
Public Counsel is the nation’s largest pro bono law firm. Founded in 1970, Public Counsel strives to achieve three main goals: protect the legal rights of disadvantaged children; represent immigrants who have been the victims of torture, persecution, domestic violence, trafficking, and other crimes; and foster economic justice by providing individuals and institutions in underserved communities with access to quality legal representation. Through a pro bono model that leverages the talents and dedication of thousands of attorney and law student volunteers, along with an in-house staff of more than 75 attorneys and social workers, Public Counsel annually assists more than 30,000 families, children, immigrants, veterans, and nonprofit organizations and addresses systemic poverty and civil rights issues through impact litigation and policy advocacy. For more information, visit www.publiccounsel.org.
Gibson, Dunn & Crutcher LLP is a leading international law firm. Consistently ranking among the world’s top law firms in industry surveys and major publications, Gibson Dunn is distinctively positioned in today’s global marketplace with more than 1,200 lawyers and 20 offices, including Beijing, Brussels, Century City, Dallas, Denver, Dubai, Frankfurt, Hong Kong, Houston, London, Los Angeles, Munich, New York, Orange County, Palo Alto, Paris, San Francisco, São Paulo, Singapore, and Washington, D.C. For more information on Gibson Dunn, please visit our Web site.
Barrera Legal Group focuses on complex immigration issues ranging from family reunification, removal defense and unlawful detention. Barrera legal has represented clients all over the US and in several different countries and maintains committed to represent the immigrant community.
MANNY RIVERA // RALLY
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323-892-2080
626-864-7467
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Los Angeles, CA 90028
www.WeAreRALLY.comU.S.
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Thanks to Pilar Marrero of La Opinion for sending this in!
PWS
03/14/17
The Michigan Wolverines soundly thrashed the Wisconsin Badgers 71-56 in the Big10 title game at the Verizon Center in DC on Sunday afternoon. The Badgers got off to a credible start, trailing only 33-32 at halftime. But, an eight minute stretch without a field goal at the start of the second half sealed the Badgers’ fate. Meanwhile, Michigan pulled away with great outside shooting, solid defense, and some fast break points.
The Badgers (25-9, 12-6) hence will go to their 19th consecutive NCAA Tournament as a #8 seed, far lower than many had projected. However, given the Badgers weak schedule and their lackluster performance in the second half of the season, winning just four of their last ten games, the seed seems about right.
The Badgers will have to play much better than they did Sunday against Michigan to get past the tough Virginia Tech Hokies (20-10, 10-8) from the ACC in the round one East Regional game at Buffalo, NY on Thursday night at 9:40 PM. The Hokies are a solid group who can make the three-ball, and they shoot a better percentage from the field and the line than the Badgers. They are led by third-year coach Buzz Williams, who formerly coached the Badgers’ in-state arch-rival Marquette Golden Eagles. The winner likely gets the unenviable task of going up against #1 seed and defending champ Villanova on Saturday.
Why the Badgers could go deep:
Experience: Four of the Badger starters were members of the 2013 and 2014 teams that went to back to back Final Fours.
Inside play: When they are “on” Senior Forward Nigel Hayes and redshirt Sophomore Ethan Happ might be the most formidable “in the paint duo” in the country.
Bronson Koenig: When he is “feeling it” Senior Guard Koenig is a dangerous, clutch three-point shooter and a reliable playmaker.
Why they probably won’t go far:
Inconsistent offense: The long dry spell against Michigan unfortunately wasn’t unusual this season. It will be a killer against tournament teams.
Horrible free throw shooting: In the past, the Badgers have been among the nation’s leaders from the line. This year, however, they shot only 64%, leaving far too many points on the line. Happ, their best all-around player, is the worst of the bunch, shooting only 50% from the stripe. This actually makes him a liability down the stretch in close games.
Too many turnovers: In the past, Wisconsin was known for a disciplined offense and taking care of the ball. This year, however, they have thrown it away with regularity, including in some key situations that cost them games. Just can’t do that against good tournament teams.
PWS
03/14/17
Darwin BondGraham reports in a profile of justice at the U.S. Immigration Court in San Francisco, CA:
“Ilyce Shugall can rattle off a similarly long list of due-process problems. The directing attorney of Community Legal Services in East Palo Alto, Shugall is one of a couple dozen pro-bono lawyers who try to provide counsel to a fraction of the people facing deportation in San Francisco.
“Procedural protections don’t really exist, despite the consequences of banishment,” she said at a recent legal symposium held by the Thelton E. Henderson Center for Social Justice in Berkeley. “There’s no right to an attorney, but the government is represented in every case by an ICE attorney.”
As Shugall sees it, the ICE attorney also has a kind of home-field advantage: Being in the same courtrooms day-in, day-out, allows an attorney to establish better rapport with judges.
And the judges and ICE attorneys all have the same boss: The President of the United States.
The immigration judges are employees of the Executive Office for Immigration Review, which is overseen by the attorney general — they’re not members of the independent judicial branch of government. The ICE attorneys work for the Department of Homeland Security.
Over her career practicing immigration law, Shugall said she’s seen ICE attorneys frequently miss filing deadlines without consequences; file motions on the day of a hearing, preventing review by the defense; and withhold records in a case from the person being targeted for deportation, thereby forcing them to file a burdensome Freedom of Information Act request to get the documents.
She’s also seen extended detention result, countless times, in what Mr. Gonzales apparently did in Judge Murry’s courtroom this past December: Give up on his case and beg to be deported, just to get escape the misery of jail.”
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The full article, which I found through ImmigrationProf Blog, is well worth a read.
I think that the Administration’s ill-advised “pedal to the metal” detention and removal plans, combined with elimination of funding for various Government sponsored outreach, information, and self-help programs is very likely to bring the due process weaknesses of the current U.S. Immigration Court system to a head.
I would not be surprised if a U.S. District Judge somewhere issues a TRO preventing the Government from proceeding in certain types of cases unless the individual is represented. After all, the Government was recently blocked in the 9th Circuit from proceeding against incompetent individuals without establishing some viable system for determining competency and representing those determined to be incompetent.
I also predict that the Administration’s ill-conceived plan to “jack up” detention, particularly by using private facilities which have been determined to have a greater incidence of problematic conditions, is likely to result in major “conditions of detention” litigation and, perhaps, further intervention by the Article III Courts.
Rather than studying the situation and looking for ways to fix our broken immigration justice system so that individuals receive the due process to which they are entitled, the Trump Administration seems determined to make matters worse by turning up the volume. That’s likely to have unhappy consequences not only for the individuals, but also for the Administration.
PWS
03/13/17
http://www.ca4.uscourts.gov/Opinions/Published/152511.P.pdf
“Our decision in Hernandez-Avalos is particularly instructive in the present case. There, the BIA denied asylum to a petitioner who fled El Salvador after gang members threatened to kill her because she prevented her son from joining the gang. 784 F.3d at 946-47. The petitioner had argued that at least one central reason for her persecution was her nuclear family relationship with her son. Id. at 949. The BIA disagreed, holding that she actually was targeted because she did not consent to her son’s criminal activity. Id.
We held that this application of the nexus requirement by the BIA was “excessively narrow,” and explained that there was no meaningful distinction between the existence of a maternal relationship and a mother’s decision to forbid her son from participating in a gang. Id. at 949–50. We held that the record compelled a factual conclusion that the petitioner’s relationship with her son was a central reason for her persecution, because that relationship was the reason “why she, and not another person, was threatened.” Id. at 950.
We likewise conclude in the present case that the BIA and IJ applied an improper and excessively narrow interpretation of the evidence relevant to the statutory nexus requirement. The BIA and IJ shortsightedly focused on Avila’s articulated purpose of preventing Cantillano Cruz from contacting the police, while discounting the very relationship that prompted her to search for her husband, to confront Avila, and to express her intent to contact the police. See Oliva, 807 F.3d at 59-60 (although the applicant’s refusal to pay the gang rent was the “immediate trigger” for an assault, the applicant’s membership in the social group of individuals who left the gang led to threats, and thus the two reasons were linked). The BIA’s and IJ’s focus on the explanation Avila gave for his threats, while failing to consider the intertwined reasons for those threats, manifests a misapplication of the statutory nexus standard.
The full record before us compels a conclusion that Avila’s threats were motivated, in at least one central respect, by Cantillano Cruz’s membership in Martinez’s nuclear family. Although, as the IJ observed, any person interested in Martinez’s disappearance may have confronted Avila concerning Martinez’s whereabouts, this fact does not adequately explain the ongoing threats Avila made against Cantillano Cruz and her children over a period of two years at her home. See Cordova, 759 F.3d at 339-40 (although the applicant was first attacked by the persecutor to force the applicant to join the gang, the BIA failed to consider evidence showing that later attacks were motivated by family ties). Avila persisted in threatening Cantillano Cruz after she promised him that she would not contact the police. Avila placed threatening telephone calls to Cantillano Cruz at her home, the center of life for Martinez and his nuclear family. Also at the Martinez family’s home, Avila and his associates killed the family’s dogs, brandished and fired weapons, and threatened to harm Cantillano Cruz and her children.”
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Read the full opinion at the link.
In too many cases, the BIA appears to strain the law and misconstrue facts to avoid granting protection to deserving applicants from Northern Triangle countries in Central America who clearly face harm upon return. Misapplication of the highly technical concept of “nexus” is a device sometimes used by by the Board and some Immigration Judges to deny claims of vulnerable individuals who could and should be granted protection under U.S. laws.
In doing so, the BIA jettisons the generous spirit of the Supreme Court’s decision in Cardoza-Fonseca and their own precedent decision in Mogharrabi warranting generous treatment of credible asylum seekers in need of protection. Indeed, the BIA often seems more willing to “rote cite” Mogharrabi than to actually follow their own precedent.
The purpose of asylum and other protections laws is to protect individuals facing harm wherever possible, not to find hyper-technical ways to deny or limit protections.
I am pleased that one of the cases cited by the Fourth Circuit is Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011). Crespin is one of the “seminal” fourth Circuit cases recognizing family as a “particular social group” for asylum purposes. I had granted the asylum applications in Crespin only to have the BIA reverse those grants after the DHS appealed. However, upon judicial review, the Fourth Circuit agreed with me and reversed and remanded the case to the BIA.
This case also vividly illustrates the absurdity of forcing individuals to pursue these types of claims in Immigration Court without a lawyer. Even the Immigration Judge and the BIA were confused about the proper standards here! Fortunately, this individual not only had a lawyer but a good one.
But, how would an unrepresented individual, without English language skills, and perhaps with minimal education, and therefore no ability to access or understand the important and complicated Fourth Circuit precedents showing the BIA and the IJ to be wrong have any legitimate chance of achieving success? Yet, the Administration proposes to race just such individuals through expedited hearings at inconveniently located and often poorly run detention facilities where chances of getting competent legal assistance are minimal.
PWS
03/13/17