JUSTICE BREYER IS RIGHTFULLY CONCERNED ABOUT THE “DREDSCOTTIFICATION’” OF IMMIGRANTS AS SHOWN IN THE LEGALLY & MORALLY BANKRUPT VIEWS OF THE MAJORITY IN JENNINGS V. RODRIGUEZ!

https://slate.com/news-and-politics/2018/03/justice-alito-just-signaled-the-supreme-courts-conservatives-might-not-consider-immigrants-to-be-people.html

Mark Joseph Stern reports for Slate:

“Tuesday’s Supreme Court decision in Jennings v. Rodriguez was widely viewed as an anticlimax. The case involves a group of immigrants being held in custody without any hope of bail. They argue that their indefinite detention violates due process, but the majority declined to resolve the constitutional question, sending the case back down to the lower court. In a sense, the plaintiffs are back where they started.

Justice Stephen Breyer, however, saw something far more chilling in the majority’s opinion. Taking the rare and dramatic step of reading his dissent from the bench, Breyer cautioned that the court’s conservative majority may be willing to strip immigrants of personhood in a manner that harkens back to Dred Scott. The justice used his impassioned dissent to sound an alarm. We ignore him at our own peril.

Jennings involves three groups of noncitizen plaintiffs: asylum-seekers, immigrants who have committed crimes but finished serving their sentences, and immigrants who believe they’re entitled to enter the country for reasons unrelated to persecution. A high percentage of these types of immigrants ultimately win the right to enter the U.S. But federal law authorizes the government to detain them while it adjudicates their claims in case it secures the authority to deport them instead.

The detention of these immigrants—often in brutal facilities that impose inhuman punishments—has, in practice, dragged on for months, even years. There is no clear recourse for detained immigrants who remain locked up without a hearing. In 2001’s Zadvydas v. Davis, the court found that a similar scheme applied to “deportable aliens” would almost certainly violate the Fifth Amendment’s Due Process Clause. To avoid this constitutional problem, the court construed the law as limiting detention to six months.

But in Jennings, the court’s five-member conservative majority interpreted another federal law to permit indefinite detention of thousands of aliens, with no apparent concern for the constitutional problems that reading creates. Justice Samuel Alito, writing for the majority, revealed from the outset of his opinion that he dislikes Zadvydas, dismissing it as a “notably generous” holding that avoided the constitutional issue in order to secure due process for immigrants. Unlike the Zadvydas court, Alito has no interest in protecting the constitutional rights of noncitizens. Instead, he read the current statute as stingily as possible, concluding that it did, indeed, allow the government to detain all three groups of immigrants indefinitely.

Oddly, Alito then chose not to address whether this interpretation of the statute rendered it unconstitutional. Instead, he sent the case back down to the lower courts to re-examine the due process question. But in the process, the justice telegraphed where he stands on the issue by attempting to sabotage the plaintiffs on their way out the door. In the lower courts, this case proceeded as a class action, allowing the plaintiffs to fight for the rights of every other similarly situated immigrant. The government didn’t ask the Supreme Court to review whether it was proper for it to litigate the plaintiffs’ claims as a class. But Alito did it anyway, strongly suggesting that the lower court should dissolve the class and force every plaintiff to litigate his case by himself.

Alito’s antics infuriated Breyer, who dissented along with Justices Ruth Bader Ginsburg and Sonia Sotomayor. (Justice Elena Kagan recused, presumably because she worked on the case as solicitor general.) Using Zadvydas as a jumping-off point, he interpreted the statute to require a bail hearing for immigrants after six months’ confinement—provided they pose no risk of flight or danger to the community. “The Due Process Clause foresees eligibility for bail as part of ‘due process,’ ” Breyer explained. By its own terms, that clause applies to every “person” in the country. Thus, the Constitution only permits the government to detain these immigrants without bail if they are not considered “persons” within the United States.

That is essentially what the government argued, asserting that immigrants detained at the border have no rights. This theory justifiably fills Breyer with righteous disgust. “We cannot here engage in this legal fiction,” he wrote. “No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.” Breyer continued:

Whatever the fiction, would the Constitution leave the government free to starve, beat, or lash those held within our boundaries? If not, then, whatever the fiction, how can the Constitution authorize the government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States? The answer is that the Constitution does not authorize arbitrary detention. And the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries.

Unfortunately, Breyer is not quite right that “no one” could claim, at least since “the time of slavery,” that noncitizens held in the U.S. “are totally without constitutional protection.” Just last October, Judge Karen L. Henderson of the U.S. Court of Appeals for the District of Columbia Circuit argued exactly that. In a stunning dissent, Henderson wrote that a pregnant, undocumented minor held in custody was “not entitled to the due process protections of the Fifth Amendment” because “[she] has never entered the United States as a matter of law … ” (The Due Process Clause protects women’s rights to abortion access.) In fact, the minor had entered the country and lived here for several months. But because she entered illegally, Henderson asserted that she had no constitutional rights. That’s precisely the “legal fiction” that Breyer rejected. It’s shockingly similar to the theory used to justify slavery and Dred Scott.

Do the Supreme Court’s conservatives agree with Henderson that undocumented immigrants detained in the U.S. have no constitutional protections? Breyer seems to fear that they do. In a striking peroration, Breyer reminded his colleagues that “at heart,” the issues before them “are simple”:

We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.” We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbitrary deprivation. And we need just keep in mind the fact that … liberty has included the right of a confined person to seek release on bail. It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right.

We should all be concerned that Breyer found it necessary to explain these first principles to the court. So many rights flow from the Due Process Clause’s liberty component: not just the right to be free from arbitrary detention and degrading treatment, but also the right to bodily integrity and to equal dignity. Should the court rule that undocumented immigrants lack these basic liberties, what’s to stop the government from torturing them, executing them, or keeping them imprisoned forever?

If that sounds dramatic, consider Breyer’s somber warning about possible starvation, beatings, and lashings. The justice plainly recognizes that, with Jennings, the court may have already taken a step down this dark and dangerous path.”

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As an appellate judge, I remember being infuriated by the callous attitude of some of my “Ivory Tower” colleagues and some trial judges who tended to minimize and sometimes trivialize human pain and suffering to arrive at nonsensical legalistic definitions of what constituted “persecution” or “torture.”

They simply didn’t want to recognize truth, because it would have resulted in more people being granted relief. In frustration, I occasionally privately suggested to staff that perhaps we needed an “interactive session” at the Annual Immigration Judges Conference (back in the days when we used to have such things) where those jurists who were immune to others’ pain and suffering would be locked in a room and subjected to some of the same treatment themselves. I imagine they would have been less stoic if it were happening to them rather than to someone else.

I doubt that any of the five Justices who joined the tone-deaf majority in Jennings would last more than a few days, not to mention years, in the kind of intentionally cruel, substandard, and deplorable conditions in which individuals, the majority of whom have valid claims to remain here under U.S. and international law, are detained in the “New American Gulag.” So, why is there no obvious Constitutional Due Process problem with subjecting individuals to so-called “civil” immigration detention, without recourse, under conditions that no human being, judge or not, should be forced to endure?

No, “Tone-Deaf Five,” folks fighting for their lives in immigration detention, many of whom lack basic legal representation that others take for granted,  don’t have time to bring so-called “Bivens actions” (which the Court has pretty much judicially eliminated anyway) for “so-called “Constitutional torts!” Come on man, get serious!

Privileged jurists like Alito and Thomas speak in undecipherable legal trivialities and “pretzel themselves up” to help out corporate entities and other members of the privileged classes, yet have no time for clear violations of the Constitutional rights of the most vulnerable among us.

A much wiser, more humble, and less arrogant “judge” than Justice Alito and friends once said “Most certainly I tell you, inasmuch as you did it to one of the least of these my brothers, you did it to me.” When will the arrogant ever learn, when will they ever learn? Maybe not until it happens to them! Harm to the most vulnerable among us is harm to all of us! We should all be concerned that Justice Alito and his fellow judicial “corporate elitists” have “dissed” the Due Process Clause of our  Constitution which protects everyone in America, not just corporations, gun owners, and over-privileged, under-humanized jurists! 

Based upon recent statistics, approximately one person per month will die in the “DHS New American Gulag” while this case is “on remand” to the lower courts. How would Alito, Roberts, Thomas, Kennedy, and Gorsuch feel if it were their loved ones who perished, rather than some faceless (to them) “alien” (who also happens to be a human being)? Dehumanizing the least among us, like the Dred Scott decision did, de-humanizes all of us! For that, there is no defense at the bar of history and humanity.

PWS

03-01-18

ANOTHER WIN FOR THE “GOOD GUYS” (A/K/A NDPA) — GW Law Immigration Clinic Scores U Visa Win!

“Please join me in congratulating Immigration Clinic client C-R, from Venezuela.  His U nonimmigrant visa application, filed on April 30, 2014, was granted Wednesday.  C-R will be eligible to adjust status to lawful permanent residence in three years.  U nonimmigrant visas are available to aliens who within the USA have been victims of criminal activity, and who have been helpful to law enforcement in investigating and prosecuting that crime.  C-R was a victim of domestic violence at the hands of his ex-wife.  Reports are that there are at least 90,000 U visa applications pending at USCIS.

Jessica Leal, Jonathan Bialosky, Sarena Bhatia, Chen Liang,  Mark Webb, and Paulina Vera have worked on this case.

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Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…”
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Congrats to all involved!
I’m proud to say that Paulina Vera and Jessica Leal are “distinguished alums” of the Arlington Immigration Court Internship Program as well as “charter members” of the New Due Process Army (“NDPA”)!
These guys keep proving my point: with time and access to good representation, probably the majority of those who flee from the so-called Northern Triangle are eligible for immigration relief of some type.
Consequently, a rational Attorney General, committed to Due Process, would work to insure that such individuals are released after initial screening and able to go to locations where pro bono counsel are readily available and where cases are scheduled in a manner that they can be completely prepared and presented efficiently. Individuals with counsel reliably appear in Immigration Court as scheduled. He would also encourage the issuance of more favorable precedents leading to more expedited grants of relief and facilitate Immigration Judges working with DHS to have cases taken off the Immigration Court docket and granted by DHS, either at the Asylum Office or elsewhere in USCIS on an expedited basis.
Instead, Sessions treats refugees and asylum seekers as if they were criminals and seeks to use the detention system to prevent individuals from obtaining counsel and achieving due process.  His misuse of the Immigration Courts as part of a DHS enforcement regime to discourage individuals from asserting their statutory and Constitutional rights is nothing short of reprehensible!
PWS
02-28-18

BIA Amicus Invitation – Conviction for Possession of Controlled Substance, Florida (Due Mar. 29, 2018)

Amicus Invitation No. 18-02-27
AMICUS INVITATION (CONVICTION FOR POSSESSION OF A CONTROLLED SUBSTANCE IN FLORIDA),
DUE March 29, 2018

FEBRUARY 27, 2018

The Board of Immigration Appeals welcomes interested members of the public to file amicus curiae briefs discussing the below issue:

ISSUES PRESENTED:

  1. (1)  Considering that knowledge of the illicit nature of a substance is not an element of the crime of possession of a controlled substance pursuant to Fla. Stat. § 893.13(6)(a), does the statute categorically define a violation “relating to” a controlled substance as provided in sections 212(a)(2)(A)(i)(II) and 237(a)(2)(B)(i) of the Act? Please discuss in light of Matter of L-G-H-, 26 I&N Dec. 365 (BIA 2014).
  2. (2)  Is the definition of cocaine provided in Fla. Stat. § 893.03(2)(a) coextensive with the definitionprovidedinthefederalcontrolledsubstanceschedules? Ifnot,whatistheimport of any difference in these definitions? Is any difference clearly evident from the Florida statute’s text?
  3. (3)  If the definition of cocaine provided in Fla. Stat. § 893.03(2)(a) is not coextensive with the definition provided in the federal controlled substance schedules, is the Florida statute divisible as to the nature of the controlled substance such that the application of the modified categorical approach is appropriate?

Request to Appear as Amicus Curiae: Members of the public who wish to appear as amicus curiae before the Board must submit a Request to Appear as Amicus Curiae (“Request to Appear”) pursuant to Chapter 2.10, Appendix B (Directory), and Appendix F (Sample Cover Page) of the Board of Immigration Appeals Practice Manual. The Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 18-02-27. The decision to accept or deny a Request to Appear is within the sole discretion of the Board. Please see Chapter 2.10 of the Board Practice Manual.

Filing a Brief: Please file your amicus brief in conjunction with your Request to Appear pursuant to Chapter 2.10 of the Board of Immigration Appeals Practice Manual. The brief accompanying the Request to Appear must explicitly identify that it is responding to Amicus Invitation No. 18-02-27. An amicus curiae brief is helpful to the Board if it presents relevant legal arguments that the parties have not already addressed. However, an amicus brief must be limited to a legal discussion of the issue(s) presented. The decision to accept or deny an amicus brief is within the sole discretion of the Board. The Board will not consider a brief that exceeds the scope of the amicus invitation.

Request for Case Information: Additional information about the case may be available. Please contact the Amicus Clerk by phone or mail (see contact information below) for this information prior to filing your Request to Appear and brief.

1

Page Limit: The Board asks that amicus curiae briefs be limited to 30 double-spaced pages.

Deadline: Please file a Request to Appear and brief with the Clerk’s Office at the address below by March 29, 2018. Your request must be received at the Clerk’s Office within the prescribed time limit. Motions to extend the time for filing a Request to Appear and brief are disfavored. The briefs or extension request must be RECEIVED at the Board on or before the due date. It is not sufficient simply to mail the documents on time. We strongly urge the use of an overnight courier service to ensure the timely filing of your brief.

Service: Please mail three copies of your Request to Appear and brief to the Clerk’s Office at the address below. If the Clerk’s Office accepts your brief, it will then serve a copy on the parties and provide parties time to respond.

Joint Requests: The filing of parallel and identical or similarly worded briefs from multiple amici is disfavored. Rather, collaborating amici should submit a joint Request to Appear and brief. See generally Chapter 2.10 (Amicus Curiae).

Notice: A Request to Appear may be filed by an attorney, accredited representative, or an organization represented by an attorney registered to practice before the Board pursuant to 8 C.F.R. § 1292.1(f). A Request to Appear filed by a person specified under 8 U.S.C. § 1367(a)(1) will not be considered.

Attribution: Should the Board decide to publish a decision, the Board may, at its discretion, name up to three attorneys or representatives. If you wish a different set of three names or you have a preference on the order of the three names, please specify the three names in your Request to Appear and brief.

Clerk’s Office Contact and Filing Address:

To send by courier or overnight delivery service, or to deliver in person:

Amicus Clerk
Board of Immigration Appeals Clerk’s Office
5107 Leesburg Pike, Suite 2000 Falls Church, VA 22041 703-605-1007

Business hours: Monday through Friday, 8:00 a.m. to 4:30 p.m.
Fee: A fee is not required for the filing of a Request to Appear and amicus brief.

2

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PWS

02-28-18

ETHICS HOT SEAT: TRUMP LAWYERS’ DILEMMA: How Do You Prepare A Congenital Liar To Testify Under Oath?

https://www.vanityfair.com/news/2018/02/donald-trump-robert-mueller-interview

Abagail Tracy reports for Vanity Fair:

“The most difficult decision a lawyer has to make is whether to allow his client to speak to the prosecutor—or in this case, the special counsel,” Robert Bennett told me, referring to the unfolding chess match between Donald Trump and Robert Mueller. Bennett, the Brooklyn-born Washington superlawyer, would know, having represented President Bill Clinton in the Kenneth Starr investigation. For a fabulist like Trump, however, the danger is tenfold: Mueller has already charged four former members of the Trump campaign with making false or misleading statements to the F.B.I. “I think there are tremendous risks in this case, because the easiest case for the government to prove would be a false statement given to the F.B.I. or the independent counsel,” Bennett added. “That’s a very easy one to prove.”

While the president initially said he is “100 percent” willing to meet with Mueller under oath, his legal team has cautioned that any interview could be a perjury trap. “He’ll be guided by the advice of his personal counsel,” Ty Cobb, the White House lawyer on the Russia inquiry, told The New York Times. For months, Trump’s lawyers have been engaged in discussions with Mueller’s team, weighing options that could mitigate the president’s legal risk. Though the format of the potential interview remains an open question, Mueller, wielding the power of subpoena, has the upper hand in shaping the negotiations. “What matters is how much leverage you have on either side,” said Renato Mariotti, a former Chicago prosecutor. “Mueller has most of the leverage . . . in the end, Mueller is going to get most, if not the vast majority, of what he wants.”

The challenge for Trump’s legal team, led by Cobb and John Dowd, is to protect the president from himself under conditions acceptable to Mueller. “It’s a very bad sign for the president that his own lawyers are so worried about whether he’s going to tell the truth that they’re trying to negotiate all of these conditions ahead of time,” Neal Katyal, a former acting solicitor general under President Barack Obama, told me. “Ordinarily, when you’re representing a high-ranking government official, you’re not worried about your client being forthcoming because that goes with the nature of government service. But here, I think the lawyers are wise to worry, just given Donald Trump’s track record of him confabulating in any number of ways.”

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Read the rest of Tracy’s article at the above link.

I don’t have much doubt that Trump will perjure himself. I don’t think he could tell the truth if his life depended on it. And, it’s likely that Mueller will be able to build a convincing case for obstruction against the Liar-In-Chief.

But, Trump relies heavily on the complicity of  the sleazy GOP he has come to dominate and the indifference of his voters to moral values or honest government. Trump is used to at least figuratively “getting away with murder” (remember his all too true boast that he could shoot someone in broad daylight in Times Square and his voters wouldn’t care). So, the chances of Trump being held accountable are probably minimal until 2024.

PWS

02-28-18

LEGAL AID JUSTICE CENTER OF VIRGINIA HUGE WIN – USD Judge Brinkema Certifies Class & Orders Bond Hearings For Individuals In “Withholding Only Proceedings” — Rogelio Amilcar Cabrera Diaz v. Hott — Get Links To All The Essential Court Docs Here!

https://www.justice4all.org/2018/02/26/case-establishes-right-to-bond-hearings/

Case Establishes Right to Bond Hearings

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FOR IMMEDIATE RELEASE

Legal Aid Justice Center has won an important first-in-the-nation class action case in federal court in Alexandria, establishing the right to bond hearings for a class of detained immigrants whom the government is holding in long-term no-bond detention.

When immigrants are deported to countries where human rights violations are rampant, they often find themselves subject to persecution, torture, or even death threats.  And since the U.S. government almost never gives a visa to someone who has already been deported, these individuals may find themselves with no option other than to try to return to the United States and cross the border illegally to seek a form of legal protection from persecution known as “withholding of removal.”

Previously, ICE and the immigration courts refused to grant bond to these individuals, holding them in prison-like conditions in immigration detention centers for months if not years while they fought out their cases.  Legal Aid Justice Center filed a lawsuit last year on behalf of five immigrants held in this prolonged no-bond detention, and won release for two of them, but the government refused to apply the decision more broadly to other similarly situated immigrants held in detention.

We then filed a first-in-the-nation class action, seeking access to bond hearings for all immigrants detained in Virginia who fall into this category.  On February 26, 2018, federal district judge Leonie M. Brinkema granted our motions in full, giving our clients and the class members all of the relief we asked for.  We understand that there are about 50 immigrants currently detained at the Farmville detention center who meet this description, with more being arrested every week.  Now, they will have the chance to pay a bond and leave detention, reunite with their families, and resume normal lives while they fight their cases for protection.

Special thanks to our pro bono co-counsel at Mayer Brown LLP, Murray Osorio LLP, Law Office of James Reyes, and Blessinger Legal PLLC – we couldn’t possibly do it without you!

The judge’s opinion can be found here: Memorandum Opinion (PDF)

The judge’s order can be found here:  Order (PDF)

The opinion applies to all immigrants who are in pending withholding-only proceedings, and “as of December 7, 2017 or at any time thereafter are detained within the Commonwealth of Virginia under the authority of [ICE].”  The government has been ordered to notify all class members by March 13, 2018, and to provide them with a bond hearing (or a Joseph hearing, if appropriate) by March 28, 2018.

We will be monitoring compliance with this opinion, and want to hear from Virginia attorneys who represent a class member.  If you represent a class member, or if you have questions as to whether your client might be a class member, please e-mail LAJC attorney Rachel McFarland at rmcfarland@justice4all.org to let us know. 

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“Super Congrats” to Simon Y. Sandoval-Moshenberg—Director, Immigrant Advocacy Program & his team of Firms and pro bono attorneys for making this happy.

I am particularly delighted that one of my “star” former Georgetown Law RLP students, Rachel McFarland, has been involved in this case. Rachel is a “charter member” of the “New Due Process Army!”

PWS

02-28-18

TAL @ CNN: ADMINISTRATION “SPLITS A PAIR” OF USDC RULINGS IN CAL. – Blown Out Again On DACA, But A Victory On “The Wall!”

http://www.cnn.com/2018/02/27/politics/daca-revocation-ruling/index.html

 

Court hands DACA recipients another victory

By: Catherine E. Shoichet and Tal Kopan, CNN

Young immigrants brought illegally to the United States as children have won another legal victory.

A federal judge in California ruled Monday that the government can’t revoke DACA recipients’ work permits or other protections without giving them notice and a chance to defend themselves.

The ruling in a California district court marks the third time a lower court has ruled against the administration’s handling of the Deferred Action for Childhood Arrivals program. But this case, unlike the others, is not about President Donald Trump’s September decision to end the program.

US District Judge Philip Gutierrez’s preliminary injunction Monday addressed another aspect: government decisions to revoke protections from individual DACA recipients.

The Obama-era DACA program protected young immigrants brought illegally to the United States from deportation if they met certain criteria, paid fees, passed background checks and didn’t commit serious crimes.

The Trump administration announced it was ending the program last year, arguing that it was unconstitutional. A series of recent lower court rulings have thwarted that effort, requiring the government to continue renewing permits under the program while legal challenges make their way through the courts. On Monday, the US Supreme Court said it was staying out of the dispute for now.

Meanwhile, activists across the country have increasingly criticized government decisions to end DACA protections in individual cases.

Monday’s ruling came in a class action lawsuit filed by the American Civil Liberties Union. The suit  argues that the government had revoked protections from DACA recipients who hadn’t been convicted of serious crimes without giving them any opportunity to defend themselves.

An example: Officials revoked the work permit of one of the plaintiffs, Jesus Arreola, after he was arrested on suspicion of immigrant smuggling. An immigration judge later found that allegation wasn’t credible, according to the ACLU’s complaint. Arreola says he was an Uber and Lyft driver who had picked up passengers for a friend without any knowledge of their immigration status.

Attorneys representing the government argue that the plaintiffs had “misused the trust given to them with the administrative grace of DACA.”

The judge said the Department of Homeland Security must restore protections to the group of DACA recipients who had them revoked “without notice, a reasoned explanation, or any opportunity to respond.”

The ruling also temporarily blocks officials from revoking DACA protections from others without following a procedure “which includes, at a minimum, notice, a reasoned explanation, and an opportunity to be heard prior to termination.”

The Justice Department did not immediately respond to a request for comment about Monday’s ruling.

According to DHS, officials had revoked or terminated 2,139 individuals’ DACA protections over the lifetime of the program as of August 2017.

The ruling came the same day the Supreme Court said it would stay out of the dispute over the termination of DACA for now, leaving renewals under the program in place for at least months.

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http://www.cnn.com/2018/02/27/politics/border-wall-ruling-curiel/index.html

Judge Curiel, once attacked by Trump, rules border wall can proceed

By Tal Kopan, CNN

(CNN)US District Judge Gonzalo Curiel has cleared one potential obstacle to President Donald Trump’s long-promised border wall, ruling Tuesday that the administration has the authority to waive a host of environmental laws and other regulations to begin construction.

Curiel’s 100-page order does not mean construction of the wall will begin immediately. Congress has yet to authorize or provide funding for any new wall to begin the project. Thus far, the Department of Homeland Security has built several prototypes in San Diego — which was the focus of the lawsuit Curiel rejected.
Still, the ruling is a win for the administration as it seeks to get money to build its wall, a centerpiece of Trump’s campaign.
Curiel’s ruling left little doubt that the DHS has broad authority to issue waivers — authorized in a cluster of laws passed by Congress in the mid 1990s to 2000s — to expedite the construction of border barriers and infrastructure. His lengthy ruling went point-by-point through the challenges to DHS’ authority brought by environmental groups and the state of California and rejected all of them.
Curiel was famously the target of Trump’s ire when he presided over a lawsuit against Trump University, which was ultimately settled after Trump won the White House.
Trump drew fierce criticism in June 2016 when he said that Curiel, who was born in Indiana, was biased against him due to his Mexican heritage.
In his ruling Tuesday, Curiel noted that the border wall is a highly contentious issue under this administration but said he did not factor that into his decision.
“The court is aware that the subject of these lawsuits, border barriers, is currently the subject of heated political debate in and between the United States and the Republic of Mexico as to the need, efficacy and the source of funding for such barriers,” Curiel wrote. “In its review of this case, the Court cannot and does not consider whether underlying decisions to construct the border barriers are politically wise or prudent.”
The groups had challenged DHS’ move to expedite construction of the prototypes and replacement fencing in San Diego on a number of grounds. The collection of lawsuits from the environmental advocacy organizations and the state of California argued that the Trump administration’s waiver wasn’t allowed by the law that created the overarching authority and that the authority itself violated the Constitution.
Curiel rejected each argument, saying the law and the nature of the border clearly give the DHS broad authority to build border barriers.
“Both Congress and the Executive share responsibilities in protecting the country from terrorists and contraband illegally entering at the borders. Border barriers, roads, and detection equipment help provide a measure of deterrence against illegal entries,” Curiel wrote. “With section 102, Congress delegated to its executive counterpart, the responsibility to construct border barriers as needed in areas of high illegal entry to detect and deter illegal entries. In an increasingly complex and changing world, this delegation avoids the need for Congress to pass a new law to authorize the construction of every border project.”
In addition to pro-immigration and civil liberties groups, environmental groups have opposed the construction of Trump’s border wall on the grounds that it would disturb sensitive wildlife and ecosystems.
One section of Trump’s proposed wall in Texas would run through a wildlife preserve.

Where border rhetoric meets reality

The Justice Department, meanwhile, hailed the ruling.
“Border security is paramount to stemming the flow of illegal immigration that contributes to rising violent crime and to the drug crisis, and undermines national security,” said spokesman Devin O’Malley. “We are pleased DHS can continue this important work vital to our nation’s interests.”
One of the groups challenging the wall said it intended to appeal the decision.
“We intend to appeal this disappointing ruling, which would allow Trump to shrug off crucial environmental laws that protect people and wildlife,” said Brian Segee, a senior attorney at the Center for Biological Diversity. “The Trump administration has completely overreached its authority in its rush to build this destructive, senseless wall.”
California Attorney General Xavier Becerra said in a statement that he was considering his options.
“We remain unwavering in our belief that the Trump Administration is ignoring laws it doesn’t like in order to resuscitate a campaign talking point of building a wall on our southern border,” Becerra said. “We will evaluate all of our options and are prepared to do what is necessary to protect our people, our values, and our economy from federal overreach. A medieval wall along the US-Mexico border simply does not belong in the 21st century.”
The waiver authority to build barriers along the border has been used a number of times dating back to the George W. Bush administration, and it has been upheld by the courts every time it has been challenged.
Trump is scheduled to visit the border wall prototypes next month.

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I guess even Gonzo can’t lose ’em all.  But, he certainly hasn’t taken his last beating on his counterproductive, ill-conceived, and wasteful “War on Dreamers.”

PWS

02-28-18

THE GIBSON REPORT — 02-26-18

THE GIBSON REPORT

HEADLINES:

TOP UPDATES

 

Supreme Court Denies Certiorari in DACA Rescission Case

SCOTUSblog: SCOTUS denied the administration’s request for review of a decision blocking termination of Deferred Action for Childhood Arrivals policy, without prejudice (meaning the case can come back to the justices).

 

State Department report will trim language on women’s rights, discrimination

Politico: The human rights bureau also has been directed to cut back a broader section in the various country reports generally called “discrimination, societal abuses and trafficking in persons.” Along with women’s reproductive rights, that section touches on topics such as anti-Semitism or pressures on the gay and lesbian community. It also includes discrimination that’s not necessarily government-sponsored.

 

US Deportations Targeting More People With No Crime Records

AP: U.S. Immigration and Customs Enforcement said 65 percent of arrests from October to December were criminals, compared to 82 percent during the final full three months of the Obama administration. Looked at another way, arrests of criminals jumped 14 percent to 25,626 from 22,484, but arrests of non-criminals nearly tripled to 13,548 from 4,918.

 

Under Trump, Border Patrol Steps Up Searches Far From the Border

NYT: Border Patrol officers are working without permission on private property and setting up checkpoints up to 100 miles away from the border under a little-known federal law that is being used more widely in the Trump administration’s aggressive crackdown on illegal immigration.

 

Big Brother is Following Immigrants

ImmProf: In January, ICE signed a contract with Vigilant, and the Electronic Frontier Foundation reported that the agency can use the database to drill down into the data for a single license plate to find where the person has lived, worked, gone to church, ran errands, and took their kids to school for the past five years. ICE can also add a license plate to a hotlist which then sends immediate sightings in real time directly to ICE.

 

U.S. Citizenship and Immigration Services Will Remove “Nation of Immigrants” From Mission Statement

The Intercept: Cissna wrote. “In particular, referring to applicants and petitioners for immigration benefits, and the beneficiaries of such applications and petitions, as ‘customers’ promotes an institutional culture that emphasizes the ultimate satisfaction of applicants and petitioners, rather than the correct adjudication of such applications and petitions according to the law.” Critically, Cissna added, “Use of the term leads to the erroneous belief that applicants and petitioners, rather than the American people, are whom we ultimately serve.”

 

Warning of ICE action, Oakland mayor takes Trump resistance to new level

The Hill: Schaaf cited information from “multiple credible sources” that Immigrations and Customs Enforcement (ICE) planned to conduct a sweep in California’s Bay Area, possibly as soon as the next day…The statement about the potential raids included information on the obligations of school officials and business owners to protect immigrants.

 

Trump floats ICE pullout in California

Politico: Trump’s comments appeared to be empty bluster. It’s extremely unlikely that his administration, which views undocumented immigration as a grave threat, would stop policing immigration in a border state — even one that gave Trump only 33 percent of the popular vote in 2016.

 

Visits by federal immigration authorities are spooking businesses and workers

LA Times: Are ICE’s audits new? No. ICE visits to employers hit a peak of 3,127 under President Obama in 2013, before his administration shifted its focus to deporting people convicted of serious crimes. In the 2017 fiscal year, ICE said it conducted 1,360 audits. But under Trump, who railed against both legal and illegal immigration during both the 2016 campaign and his presidency, ICE agents have become more willing to arrest anyone in the country illegally whom they encounter during enforcement actions, even if those people have no criminal convictions.

 

After testy call with Trump over border wall, Mexican president shelves plan to visit White House

WaPo: Peña Nieto was eyeing an official trip to Washington this month or in March, but both countries agreed to call off the plan after Trump would not agree to publicly affirm Mexico’s position that it would not fund construction of a border wall that the Mexican people widely consider offensive, said the officials, who spoke on the condition of anonymity to discuss a confidential conversation.

 

The US Undocumented Population Fell Sharply During the Obama Era: Estimates for 2016

CMS: [T]he steady decline in the [undocumented] population since 2010 refutes the recurrent argument that consideration by Congress of an earned legalization program or the DREAM Act, or even the establishment of the Deferred Action for Childhood Arrivals (DACA) program — all of which occurred during this time-frame — invariably leads to increased undocumented immigration. In addition, as previously documented by CMS, the United States has turned a significant corner in immigration enforcement. The remaining US undocumented population has extremely long tenure, strong equitable ties, and firm roots in the United States.

 

LITIGATION/CASELAW/RULES/MEMOS

 

Supreme Court Denies Certiorari in DACA Rescission Case

The Supreme Court denied certiorari, and noted that “[i]t is assumed that the Court of Appeals will proceed expeditiously to decide this case.” (DHS v. Regents of the University of California, 2/26/18). AILA Doc. No. 17091102.

 

Class Action Lawsuit Filed to Allow Certain Temporary Protected Status Recipients to Adjust Their Status

The American Immigration Council filed a class action lawsuit in a New York federal district court, challenging the unlawful practice of depriving certain TPS holders with close family relationships/employment in the U.S. from becoming lawful permanent residents. (Moreno v. Nielson, 2/22/18). AILA Doc. No. 18022337

 

Class Action Lawsuit Filed Challenging Prolonged Detention of Immigrant Children in New York

The New York Civil Liberties Union filed a class action lawsuit in the District Court of the Southern District of New York against the Office of Refugee Resettlement challenging the government’s prolonged detention of immigrant children across New York. (L.V.M v. Lloyd, 2/16/18). AILA Doc. No. 18022262

 

Brief Argues Attorney General Lacks Impartiality Necessary to Decide Immigration Cases

AIC: In a rare move, Attorney General Jeff Sessions recently referred an immigration case to himself, utilizing a regulation that gives attorney generals the power to reconsider cases previously decided by the Board of Immigration Appeals. But Sessions’ hostile anti-immigrant public statements, made over the course of his entire career, make him unfit to rule in an immigration case.

 

DOJ Files Complaint to Denaturalize Diversity Visa Recipient Who Obtained Naturalized Citizenship

DOJ filed a complaint in the Eastern District of Michigan to revoke the naturalization U.S. citizenship of Humayun Kabir Rahman after he failed to disclose two prior orders of removal and became a U.S. citizen in 2004. The case was referred by USCIS and identified as a part of Operation Janus. AILA Doc. No. 18022032

 

BIA Finds IJ Properly Considered Applicant’s Border Interview in Making Credibility Determination

The BIA dismissed the appeal, stating that when considering a border or airport interview in making a credibility determination, an IJ should assess the accuracy and reliability of the interview based on the totality of the circumstances. Matter of J-C-H-F-, 27 I&N Dec. 211 (BIA 2018). AILA Doc. No. 18022037

 

BIA Holds California Theft Statute Not a CIMT

Unpublished BIA decision holds that theft under Cal. Veh. Code 10851(a) is not a CIMT because it criminalizes joyriding and is not divisible. Special thanks to IRAC. (Matter of Arellano Aguilar, 4/28/17) AILA Doc. No. 18022035

 

BIA Finds Domestic Assault Not a CIMT

Unpublished BIA decision holds that fifth degree domestic assault under Minn. Stat. 609.2242, subd.1(2) is not a CIMT because neither physical contact nor infliction of injury is required. Special thanks to IRAC. (Matter of Omari, 4/28/17)AILA Doc. No. 18022036

 

BIA Holds Unauthorized Use of Personal Identifying Document Not a CIMT

Unpublished BIA decision holds that unauthorized use of personal identifying information of another under Cal. Penal Code 530.5(a)(5) is not a CIMT. Special thanks to IRAC. (Matter of Pangilinan, 4/26/17). AILA Doc. No. 18022364

 

BIA Finds Misprision of Felony Is a CIMT

The BIA dismissed the appeal, finding that misprision of felony in violation of 18 U.S.C. § 4 (2006) is categorically a crime involving moral turpitude (CIMT) and reaffirmed the holding in Matter of RoblesMatter of Mendez, 27 I&N Dec. 219 (BIA 2018). AILA Doc. No. 18022339

 

BIA Finds Possession of Motor Vehicle Part Without ID Number Is Not a CIMT

Unpublished BIA decision holds that possession of a motor vehicle part without an identification number under Utah Code 4-1a-1313 is not a CIMT because it does not require the part to be stolen or used unlawfully. Special thanks to IRAC. (Matter of Romero-Ramirez, 4/28/17). AILA Doc. No. 18022206

 

BIA Finds Sale or Transport of Controlled Substance Not an Aggravated Felony

Unpublished BIA decision holds sale or transport of controlled substance under Cal. Health & Safety Code 11352(a) not an aggravated felony because it includes mere solicitation, offer to sell, and importation from another state. Special thanks to IRAC. (Matter of Gallo, 4/28/17). AILA Doc. No. 18022202

 

CA1 Finds BIA Did Not Abuse Its Discretion in “Particularly Serious Crime” Analysis

The court denied the petitions for review, finding that the BIA did not abuse its discretion in concluding that the petitioner’s aggravated identity theft conviction was a “particularly serious crime” rendering her ineligible for withholding. (Valerio-Ramirez v. Sessions, 2/15/18). AILA Doc. No. 18022210

 

CA1 Remands Case to the BIA to Determine Whether Massachusetts Arson Is a CIMT

The court found that the reasoning the BIA used to conclude that Massachusetts arson is categorically a crime involving moral turpitude (CIMT) was inadequate, and remanded the petitioner’s case to the BIA. (Rosa Pena v. Sessions, 2/14/18). AILA Doc. No. 18022209

 

CA4 Holds BIA Erred in Finding Petitioner Did Not Meet Nexus Requirement for Asylum and Withholding Claims

The court found that the BIA erred in holding that the petitioner did not meet the “nexus” requirement for his asylum and withholding of removal claims, finding that at least one central reason for his persecution by MS-13 was his membership in his family. (Salgado-Sosa v. Sessions, 2/13/18). AILA Doc. No. 18022232

 

CA5 Denies Petition for Review Where Petitioner Claimed Lack of Notice of Hearing

The court denied the petition for review, holding that the BIA did not abuse its discretion in affirming the IJ’s decision that the petitioner received proper notice of her hearing where delivery of the notice occurred at the address the petitioner provided. (Garcia Nunez v. Sessions, 2/8/18). AILA Doc. No. 18022336

 

CA7 Denies Petition for Review of Denial of CAT Relief for Bisexual Jamaican Citizen

The court concluded that the denial of CAT deferral of removal was supported by substantial evidence, finding that the petitioner, a bisexual Jamaican citizen, did not provide sufficient evidence that he specifically would be targeted for extreme violence. (Bernard v. Sessions, 2/8/18). AILA Doc. No. 18022335

 

CA9 Vacates Denial of Chinese Petitioner’s Asylum Application

Where the petitioner had been persecuted by Chinese authorities after opposing eminent domain, the court vacated the BIA’s denial of his asylum application, finding that the persecution was on account of an imputed political opinion. (Song v. Sessions, 12/18/17, amended 2/15/18). AILA Doc. No. 17122000

 

CA9 Holds That Children of LPRs May Take Advantage of Age Calculation Formula in INA §203(h)(1)

The court held that the word “age” in INA §201(f)(2) refers unambiguously to age as calculated under INA §203(h)(1), and rejected the BIA’s contrary holding in Matter of Zamora-Molina. (Rodriguez Tovar v. Sessions, 2/14/18). AILA Doc. No. 18022344

 

CA9 Says Detention of Noncitizens Subject to Reinstated Removal Orders Is Governed by INA §241(a)

The court held that reinstated removal orders are administratively final, and that the detention of noncitizens subject to reinstated removal orders is governed by INA §241(a). Thus, the petitioner was not entitled to a bond hearing. (Padilla-Ramirez v. Bible, 7/6/17, amended 2/15/18). AILA Doc. No. 17072668

 

CA9 Refuses to Remand Case Where Petitioners Did Not Show Eligibility for Administrative Closure

The court found that the IJ and BIA erred by not reviewing the petitioners’ administrative closure request, but that remand was not required because the petitioners did not show eligibility for administrative closure under the Avetisyan factors. (Gonzalez-Caraveo v. Sessions, 2/14/18). AILA Doc. No. 18022338

 

CA10 Affirms District Court’s Certification of Two Classes of ICE Detainees in Private Contract Detention Facility

The court affirmed the district court’s certification of two classes of ICE detainees housed in a GEO group private contract detention facility in Aurora, Colorado. The detainees’ complaint is based on a forced labor claim and an unjust enrichment claim. (Menocal v. GEO Group, 2/9/18). AILA Doc. No. 18022330

 

CA11 Holds That Petitioner’s Florida Drug Trafficking Conviction Was Categorically Not an Aggravated Felony

The court held that Florida Statutes §893.135(1)(c)1. (2007), which criminalized various narcotics offenses, was indivisible and categorically overbroad, and therefore a conviction under that statute cannot qualify as an aggravated felony under the INA. (Cintron v. Attorney General, 2/20/18). AILA Doc. No. 18022361

 

ACTIONS

 

Survey on Northern Triangle Asylum Cases: We are Temple Law students seeking your feedback on a project we are working on with the Washington Office on Latin America (WOLA) to support asylum claims from the Northern Triangle.  We aim to provide asylum lawyers with country conditions information tailored to specific issues that arise commonly in cases from the Northern Triangle but lack sufficient easily accessible factual support. This is where you come in.  We need your advice to determine which issues and countries we should prioritize in our efforts.  To that end, we’d be grateful if you could complete this survey

 

RESOURCES

 

·         Pew: Key facts about U.S. immigration policies and proposed changes

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PWS

02-27-18

THE HILL: NOLAN ON EUROPE’S CONTINUING MIGRATION ISSUES!

http://thehill.com/opinion/immigration/375610-the-migrant-crisis-is-still-a-growing-burden-for-europe

 

Family Pictures

Nolan writes:

“Making the situation worse, pursuant to the EU’s Dublin II regulation, refugees are supposed to apply for asylum in the first EU country they reach, and EU nations are resisting any changes to this regulation that would cause them to receive more migrants.

This has created an impossible burden for Greece and Italy, which have become the main gateways for 1.5 million refugees arriving on Europe’s shores over the last three years.

The EU Commission sought to redistribute 160,000 asylum seekersthroughout the EU from Greece and Italy, but lack of cooperation from other EU nations made it impossible to achieve that goal.  When the program ended, only 31,000 refugees had been resettled.

But fewer migrants are coming to Europe.  Only 186,768 migrants came in 2017.  The following chart provides an overview of arrivals that year.

The numbers have not gone down because fewer people need refuge.

European governments entered into partnership agreements with North African countries in 2017.  They offered financial support to them in exchange for stepped-up border patrols and crackdowns on migrant smuggling in their territories.

While these agreements have succeeded in reducing the numbers, it has come at a human cost.  In Libya, the launch point for most of the migrant journeys to Europe, migrants intercepted while fleeing from Libya are sent to detention centers.  Government and NGO reports have documented widespread physical and sexual violence, more conditions and killings at these centers.

Crime.

In 2016, Germany accepted the largest population of asylum seekers in Europe, but it has not worked out well for Germany. According to a study conducted by the Zurich University of Applied Sciences, the German state of Lower Saxony has experienced a 10.4 percent increase in violent crime.

German criminologists claim that the best way to prevent violent crime among migrants is to provide them with better integration opportunities.  It also could help if Germany allowed them to be reunited with their families. Germany recently limited family reunifications.

In view of Europe’s low natural population growth rate, refugee family reunification could be a great benefit by adding to the birth rate in the EU.  In the first half of the 1960s, the population of the EU increased by only 0.8 percent a year, and the birth rate is even lower now.

The European economy, meanwhile, is growing, which is producing labor shortages.  Europe needs population inflows from outside the EU to increase its workforce.

The EU needs to ensure that the Schengen Agreement does not prevent individual nations from securing their borders, and it should consider making a greater effort to integrate its migrant population.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.”

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I encourage you to go over to The Hill at the above link to read Nolan’s complete article.

  • It’s difficult to impossible to solve migration problems solely by working on them at the “receiving” end. I suspect that there will continue to be additional arrivals and more deaths unless and until the problems causing the refugee migration are addressed at the “sending” end.
  • Seems like the African nations acting as “middlemen” are the only “winners” here. The get paid by the EU for shutting down some routes for refugee migration. In the meantime, I suspect that they get paid by the smugglers for leaving some routes “open” or “looking the other way.”
  • Nolan’s point that Europe’s economic future might well depend on their better integrating migrants is well taken. Generally, the US has done a superior job of integrating migrants into our society. That’s one reason why our economy generally has done better than those of most EU nations.

PWS

02-27-18

SPLINTERED SUPREMES PROVISIONALLY OK “NEW AMERICAN GULAG” — Trump/Sessions Successfully Fight To Preserve Obama Legacy Of Never-Ending “Civil” Immigration Detention — Case Remanded To Lower Court, But Alito & Fellow GOP Justices Show Scant Concern For Human (Non-Economic) Rights & Freedom Under Constitution!

Jennings v. Rodriguez, O2-27-18

MAJORITY: Chief Justice Roberts, Justices Kennedy, Thomas, Alito, Gorsuch

CONCURRING OPINION: Justice Thomas, joined by Justice Gorsuch

DISSENTING OPINION: Justice Breyer, joined by Justices Ginsburg, Sotomayor

NOT PARTICIPATING: Justice Kagan

HERE’S A COPY OF THE COURT’S FULL DECISION:

15-1204_f29g

ANALYSIS BY ERIC LEVITZ @ NEW YORK MAGAZINE:

“For much of his presidency, Donald Trump has appeared more committed to nullifying his predecessor’s legacy than to any affirmative political principle. The president campaigned on a promise to repeal Obamacare and expand access to affordable health insurance — but when these goals came into conflict, he opted for the former. Trump argued vociferously that rogue regimes must be blocked from acquiring nuclear weapons — then “decertified” an Obama-era nuclear agreement that did just that. He claimed to believe in regulatory policies that protect “clean air and clean water,” then rolled back Obama-era rules aimed at that objective. Trump praised Janet Yellen’s economic management — but still took the precedent-defying step of refusing to grant the Obama-appointed Federal Reserve chair a second term.

Nevertheless, for all his policy nihilism, the president can still occasionally put substance over spite, and admit that on this or that specific issue, Barack Obama actually had a point. Thus, on Tuesday the Trump administration celebrated the preservation of one piece of Obama’s legacy.

In 2014, a federal district court ruled that immigrants detained while awaiting deportation proceedings were entitled to periodic bond hearings. The lead plaintiff in the case was a legal permanent resident of the United States, Alejandro Rodriguez, who was arrested as a teenager for joyriding and misdemeanor drug possession – and then jailed for three years, without ever receiving a bond hearing, as his lawyers (successfully) contested his deportation. The federal judge ruled that Rodriguez had a legal right to request to await trial outside of a detention facility. The Obama administration disagreed, arguing that the federal government has the authority to decide whether any individual immigrant should be afforded that right – or whether he or she is simply too dangerous for such due process – even if the person in question is a legal permanent resident or asylum-seeker.

Upon his election, Trump set aside his differences with Obama, and continued his predecessor’s appeal. Even when the Ninth Circuit upheld the lower court’s ruling, Jeff Sessions & Co. persisted in their defense of the Obama Justice Department’s position.

And on Tuesday, the Supreme Court’s conservative majority sided with the government in a narrow ruling: The justices did not rule that detained immigrants have no right to bond hearings under the Constitution; rather, they merely ruled that immigrants had no such rights under federal immigration law. As the New York Times explains:

The Ninth Circuit had ruled that bond hearings are required after six months to determine whether detainees who do not pose flight risks or a danger to public safety may be released while their cases proceed. The court based its ruling on an interpretation of the federal immigration laws, not the Constitution, though it said its reading was required to avoid constitutional difficulties.

Justice Samuel A. Alito Jr., writing for the majority on Tuesday, said that this interpretive approach, called “constitutional avoidance,” was unavailable here, as the words of the immigration laws were plain. “The meaning of the relevant statutory provisions is clear — and clearly contrary to the decision of the court of appeals,” Justice Alito wrote.
This ruling will send the case back to the Ninth Circuit, which will have the opportunity to assess whether the Constitution requires bond hearings for detained immigrants.

Three of the court’s liberals opposed the decision, while Elena Kagan recused herself (due to relevant work she had performed as Obama’s solicitor general). In an impassioned dissent, Justice Stephen Breyer insisted that the court should have reached a determination on the underlying Constitutional question – and ruled that all human beings in the United States are entitled to our founding document’s basic protections.

“[W]ould the Constitution leave the Government free to starve, beat, or lash those held within our boundaries?” the Justice asked. “If not, then, whatever the [legal] fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States?”

“We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have ‘certain unalienable Rights,’ and that among them is the right to ‘Liberty,’” Breyer wrote.

But thanks to the bipartisan efforts of the patriots in our Justice Department, the Trump administration will remain free, for the moment, to indefinitely imprison any legal immigrants and asylum-seekers it wishes to deport.

And Trump wishes to deport quite a few — although he’ll need to get much more aggressive on that front, if he wishes to preserve the pace of deportations set by his predecessor.

But, as Tuesday’s ruling demonstrated, with enough will and bipartisan cooperation, there’s little the American government cannot do.”

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HERE’S WHAT JUSTICE ALITO, JUSTICE THOMAS & THEIR BUDDIES REALLY ARE SAYING BEYOND THE LEGAL GOBBLEDYGOOK:

The plaintiffs are neither corporations nor guns. They are mere human beings. Therefore, they are entitled to no Constitutional protections that we care to enforce.

FROM JUSTICE BREYER’S DISSENT:

The relevant constitutional language, purposes, history, traditions, context, and case law, taken together, make it likely that, where confinement of the noncitizens before us is prolonged (presumptively longer than six months), bail proceedings are constitutionally required. Given this serious constitutional problem, I would interpret the statutory provisions before us as authorizing bail. Their language permits that reading, it furthers their basic purposes, and it is consistent with the history, tradition, and constitutional values associated with bail proceedings. I believe that those bail proceedings should take place in accordance with customary rules of procedure and burdens of proof rather than the special rules that the Ninth Cir­ cuit imposed.

The bail questions before us are technical but at heart they are simple. We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.” We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbi­ trary deprivation. And we need just keep in mind the fact that, since Blackstone’s time and long before, liberty has included the right of a confined person to seek release on bail. It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right. I would find it far more difficult, indeed, I would find it alarming, to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail. I would read the statutory words as consistent with, indeed as requiring protection of, the basic right to seek bail.
Because the majority does not do so, with respect, I dissent.

ONE POINT THAT ALL EIGHT JUSTICES AGREED ON:

The 9th Circuit was without authority to rewrite the statute to require bond hearings at 6 month intervals with the DHS bearing the burden of proof on continuing detention.

PWS

02-27-18

 

WELCOME TO BIA-LAND! – Where You Might Be Better Off Committing A Felony Than Concealing It – Matter of Mendez, 27 I&N Dec. 219 (BIA 2018)

3916

Matter of Mendez, 27 I&N Dec. 219 (BIA 2018)

BIA HEADNOTE:

“Misprision of felony in violation of 18 U.S.C. § 4 (2006) is categorically a crime involving moral turpitude. Matter of Robles, 24 I&N Dec. 22 (BIA 2006), reaffirmed. Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), followed in jurisdiction only.”

PANEL: BIA APPELLATE IMMIGRATION JUDGES PAULEY, GUENDELSBERGER, and MALPHRUS

OPINION BY: Judge Roger A. Pauley

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Pretty straight forward. There was a so-called “Circuit split.” Given alternative choices, the BIA almost always chooses the interpretation most favorable to the DHS and least favorable to the respondent.

Hence, the respondent loses, the BIA doesn’t “rock the boat,” the Office of Immigration Litigation can defend the most restrictive position in the Courts of Appeals and, if necessary, before the Supremes, Jeff Sessions remains happy, and BIA judges retain their jobs.

The only losers: Due Process, fairness, and the respondent. But, who cares about them anyway? It’s all about maximizing removals.

PWS

02-27-18

 

 

BIA’S PLANNED EXPANSION TO 21 JUDGES LIKELY TO RESULT IN EVEN MORE PRO-ENFORCEMENT BIAS!

2018-03980

The DOJ has finalized regulations (see above link) that would expand the authorized number of Appellate Immigration Judges serving as Board Members on the BIA from the current 17 to 21. Currently, there are 15 Appellate Immigration Judges actually on duty, including the Chair and Vice Chair.

The BIA once was authorized 23 Board Members, prior to the infamous “Ashcroft Purge of 2003” which artificially reduced the number of Appellate Immigration Judges to eliminate those judges perceived as “too liberal” by Ashcroft and his cronies. Because the number 12 was arbitrary, the BIA in fact never was able to operate properly with that reduced number of judges.

The DOJ therefore resorted to a number of “gimmicks” to keep the operation afloat while concealing their politicized mismanagement of the appellate function. Among the gimmicks were using senior BIA staff members as “Temporary Board Members,” misuse of “summary affirmances” to rubber stamp orders of removal, so-called “single-Member decisions” that often were in conflict with each other, elimination of authority to review facts “de novo,” and a “presumption against en banc precedents” used to suppress dissent. However, given that the BIA was carefully constructed with only judges likely to “go along to get along” with Administration enforcement views, there wasn’t likely to be much dissent anyway.

The immediate result of the “Ashcroft purge” was tanking of the BIA’s credibility and decision quality that quickly outraged many U.S. Courts of Appeals. This, in turn, resulted in boatloads of reversals and remands from the Courts of Appeals for new decisions, as well as pointed criticism in published Court of Appeals decisions, and media criticism from some of the most outspoken Article III Court of Appeals Judges.

Finally, Ashcroft’s successor, Attorney General Alberto Gonzalez, had to take steps to slow down the “deportation express” and restore at least some semblance of quality and civility to the adjudication process at both the BIA and Immigration Court levels. However, Gonzalez chose largely to blame Immigration Judges for the drop-off in quality, rather than acknowledging the DOJ’s primary role in creating the problems.

In the abstract, with an increasing case load and more Immigration Judges being appointed, an increase to 21 judges at the BIA seems logical. However, given the BIA’s already “DHS-leaning” jurisprudence, and the overtly anti-immigrant, restrictionist views expressed by Attorney General Sessions, it’s likely that expansion will mean further “packing” the BIA with judges who are biased in favor of the Administration’s alt-right restrictionist immigration enforcement agenda.  That will be bad news for migrants and anyone else expecting the BIA to honor its long-forgotten pledge to “guarantee fairness and due process for all.”

Just another reason why America needs an independent Article I U.S. Immigration Court (including an open “merit-based” judicial selection system) now!

PWS

02-27-18

“GO POUND SAND” SUPREMES TELL TRUMP & SESSIONS ON DACA – HIGH COURT STIFFARMS DOJ’S FRIVOLOUS TRY TO END RUN LEGAL PROCESS!

https://www.cnn.com/2018/02/26/politics/daca-supreme-court/index.html

\

 

Ariane de Vogue and Tal Kopan report for CNN”

“Washington (CNN)The Supreme Court said on Monday that it will stay out of the dispute concerning the Deferred Action for Childhood Arrivals program for now, meaning the Trump administration may not be able to end the program March 5 as planned.

The move will also lessen pressure on Congress to act on a permanent solution for DACA and its roughly 700,000 participants — undocumented immigrants who came to the US as children.
Lawmakers had often cited the March 5 deadline as their own deadline for action. But the Senate failed to advance any bill during a debate earlier this month, and no bipartisan measure has emerged since.
Originally, the Trump administration had terminated DACA but allowed a six-month grace period for anyone with status expiring in that window to renew. After that date, March 5, any DACA recipient whose status expired would no longer be able to receive protections.
Monday’s action by the court, submitted without comment from the justices, is not a ruling on the merits of the DACA program or the Trump administration’s effort to end it.
At issue is a ruling by federal District Judge William Alsup of the US District Court for the Northern District of California, who blocked the plan to end DACA and held that the Trump administration must resume accepting renewal applications. The action means the case will continue going through the lower courts.
Alsup said a nationwide injunction was “appropriate” because “our country has a strong interest in the uniform application of immigration law and policy.”
“Plaintiffs have established injury that reaches beyond the geographical bounds of the Northern District of California. The problem affects every state and territory of the United States,” he wrote.
The 9th US Circuit Court of Appeals has generally allowed nationwide injunctions against the Trump administration actions from lower court judges under this President to stand, meaning the DACA program could be spared a year or more until the Supreme Court could take up the case in next year’s term, given the likely realities of the calendar.
Justice Department spokesman Devin O’Malley said the administration’s appeal to the Supreme Court was an uphill climb, given it came before the 9th Circuit ruled.
“While we were hopeful for a different outcome, the Supreme Court very rarely grants certiorari before judgment, though in our view, it was warranted for the extraordinary injunction requiring the Department of Homeland Security to maintain DACA,” O’Malley said. “We will continue to defend DHS’s lawful authority to wind down DACA in an orderly manner.”
University of Texas professor law and CNN legal analyst Stephen Vladeck said justices normally don’t weigh in at this stage.
“The justices have not granted such a request since 2004, but the government claimed that the urgency of settling the legal status of DACA, and the potential for nationwide confusion, justified such an extraordinary measure,” Vladeck said.”
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Good news for America on a number of fronts:
  • DACA immigrants get to keep their status and work authorization for now. While the Administration claimed (disingenuously) that removal of DACA recipients would not be a “priority,” loss of DACA status would mean loss of work authorization (and therefore jobs) for many and loss of in-state tuition eligibility for college for others. Thus, they would have been driven “into the underground.” Honest employers who insisted on following work authorization laws would have been penalized by loss of important, talented workers. Meanwhile, unscrupulous employers willing to overlook lack of work authorization or pay “under the table” at substandard wages would have been empowered by the Administration’s bone-headed actions to exploit Dreamers and U.S. workers alike.
  • Supremes rebuffed the arrogant Trump/Sessions attitude of entitlement. Whatever their disingenuous explanations might be today, in attempting to circumvent the Courts of Appeals to the Supremes, the Administration basically was touting that the GOP had “bought and paid for” five seats on the Supremes and that they expected their “wholly-owned Justices,” including of course the recently appointed Justice Gorsuch, to deliver on their demand for unprecedented special treatment. By forcing the Administration to follow the rules like everyone else, at least for now, the Supremes maintained some degree of dignity and judicial independence in the context of an Administration that publicly holds itself above the law and states that the only acceptable role of Federal Judges (particularly GOP appointees) is to “rubber stamp” Administration positions.
  • Litigation in the Courts of Appeals will further expose the absurdity of Session’s “legal position” on DACA. In the DACA litigation, the DOJ is incredibly asking the Federal Courts to invalidate the Executive’s own legal authority to exercise prosecutorial discretion on a consistent and disciplined basis. While courts have acknowledged that there are likely ways in which the Administration could go about terminating DACA, claiming that it is “illegal” isn’t one of them. Session’s bogus claim that an Administration doesn’t have authority to exercise prosecutorial discretion on a widespread basis is both disingenuous and absurd on its face. Obviously, this Administration has already chosen to exercise lots of prosecutorial discretion not to enforce environmental, health care, civil rights, ethics, and other “laws on the books” when it suited their purposes.
  • If the lower court rulings stand, Trump will have difficulty coming up with a “rational reason” to terminate DACA “on the merits.” Trump himself, as well as other Administration officials and politicos from both parties have widely and publicly praised DACA youth and their contributions to the United States. There is neither a legal nor a rational basis for terminating DACA. While Trump & Sessions might well attempt to do so, those attempts are also likely to be tied up in the Federal Courts for a long time. DACA created “settled expectations” on the part of the recipients, their employers, their schools, and even their U.S. families of continuing ability to, at a minimum, remain, work, and study in the United States, assuming continued “good behavior.” In my long experience in Government, Federal Courts have more often than not been anxious to find ways to protect such “settled expectations.”
  • Congress was going to “punt” on DACA anyway. I detected little if any interest on the part of GOP “leadership” in the House and Senate to fix DACA on a temporary or permanent basis for now. It’s going to take “regime change” —  eventually replacing recalcitrant GOP legislators with Democrats more interested in governing in the public interest, including solving the Dreamer issue on a long-term basis (without otherwise damaging our permanent immigration system or further enabling lawless behavior by DHS). That’s going to take time, just like the litigation. In this case, time is the Dreamer’s and the bulk of America’s friend.

PWS

02-26-18

 

TRUMP ON PACE TO DEPORT ALL 11 MILLION UNDOCUMENTED AMERICANS BY 2070!

Tal Kopen reports for CNN:

http://www.cnn.com/2018/02/23/politics/trump-immigration-arrests-deportations/index.html

 

“Arrests of immigrants, especially non-criminals, way up in Trump’s first year

By Tal Kopan, CNN

In his first year in office, President Donald Trump’s administration’s arrests of immigrants — especially those without criminal convictions — were up substantially, but actual deportations lagged behind his predecessor, according to statistics released Friday.

The jump corresponds to Trump’s central pledge to crack down on illegal immigration, at least in terms of casting a wide net to catch undocumented or deportable immigrants.

Days after being inaugurated, one of Trump’s first actions was to release immigration agents of specific prioritization of who to go after, giving them wide discretion to target almost any undocumented immigrant as a priority.

According to new data from Immigration and Customs Enforcement, there was a 41% increase in the number of undocumented immigrants who were arrested by the agency in 2017 compared to 2016.

But the increase was driven by the agency arresting a significantly higher rate of immigrants without a criminal background. While the share of criminals arrested was up 17%, there was an increase 10 times that — of 171% — in the share of non-criminals arrested.

ICE had previously released fiscal year data, but on Friday released additional numbers from the last three months of 2017 as well, allowing for the year-to-year comparison.

In 2017, ICE made routine arrests of more than 155,000 immigrants, 30% of whom were not criminals. The final three months of the year, the rate of non-criminals arrested was even higher, at 35%.

That number was far lower, though, in 2016. That year the Obama administration arrested almost 110,000 immigrants, nearly 16% of whom were not criminals. In 2014, Obama’s Department of Homeland Security set priorities for ICE that focused first on serious criminals and national safety threats, followed by other public safety threats and immigrants who had recently had an order of deportation signed.

Unlike the increased arrests, at the end of 2017, deportations continued to lag behind the Obama administration’s pace, despite Trump’s repeated pledges to get undocumented immigrants “out” of the country.

In 2017, the administration deported nearly 215,000 immigrants, 13% fewer than the nearly 250,000 deported in 2016. The percentage of those individuals who were non-criminals was steady at just over 40%.

Deportations are a complex statistic to compare, however, because it can take many years to work an individual case through the immigration courts. The administration has also cited a decrease in the number of people apprehended at the border as part of the lagging numbers.”

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While “Gonzo” immigration enforcement is demonstrably bad for America, the good news here is that the pace at which it is proceeding insures its own ultimate failure.  That’s great news for America and our future!

If Trump, Sessions & Co were actually able to remove all 11 million so-called “undocumented” Americans tomorrow, the American agriculture, hospitality, technology, construction, dairy, teaching, health care, child care, technology, restaurant, and sanitation industries, to name just a few, would cease to function, thus throwing our country into an economic and social tailspin from which we likely would never recover. When you are being governed by idiots, sometimes your only protection is in the idiocy and self-defeating nature of their own policies.

PWS

02-26-18

“GOOD ENOUGH FOR GOVERNMENT WORK” – 2d CIR. GIVES “CHEVRON DEFERENCE” TO BIA’S Matter of L-A-C-, 26 I. & N. Dec. 516 (B.I.A. 2015) – Migrants Have No Right to Advance Notice Of Required Corroboration! – Wei Sun v. Sessions

CA2-WeiSunvSessions

Wei Sun v. Sessions, 2d Cir., 02-23-18, published

PANEL: LEVAL, LIVINGSTON, and CHIN, Circuit Judges.

OPINION BY: Judge Chin

KEY QUOTE/SUMMARY:

Petitioner Wei Sun (“Sun”) seeks review of a June 26, 2015 decision of the Board of Immigration Appeals (“BIA”) affirming the decision of an Immigration Judge (“IJ”) denying him asylum for religious persecution in China. Sun entered the United States on a visitor visa in 2007 and subsequently filed a timely application for asylum and withholding of removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158 and 1231(b)(3), respectively, and for relief under the Convention Against Torture (“CAT”), see 8 C.F.R. § 208.16. The IJ and the BIA denied Sun’s petition on the ground that he failed to meet his burden of proof because of an absence of corroborating evidence.

The BIA interpreted the corroboration provision of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 303 (2005), as not requiring an IJ to give a petitioner specific notice of the evidence needed to meet his burden of proof, or to grant a continuance before ruling to give a petitioner an opportunity to gather corroborating evidence. On appeal, Sun argues that an IJ must give a petitioner notice and an opportunity to submit additional evidence when the IJ concludes that corroborating evidence is required, relying on the Ninth Circuit’s decision in Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011). We conclude that the REAL ID Act is ambiguous on this point, and that the BIA’s interpretation of the statute is reasonable and entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Accordingly, we deny the petition for review.

ANOTHER KEY QUOTE:

Moreover, the test is not whether the Ninth Circuit’s interpretation is plausible or “better” than the agency’s, as Sun suggests. Pet. Br. at 21. Rather, the test is whether the statute is “silent or ambiguous” and if so, then whether “‘the agency’s answer is based on a permissible construction of the statute,’ which is to say, one that is ‘reasonable,’ not ‘arbitrary, capricious, or manifestly contrary to the statute.'” Riverkeeper Inc. v. EPA, 358 F.3d 174, 184 (2d Cir. 2004) (quoting Chevron, 467 U.S. at 843-44).

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

So, here’s what Chevron really says:

“As long as the agency has a minimally plausible interpretation, we couldn’t care less if it’s the best interpretation of the law.”

But, why shouldn’t high-ranking Federal Judges who are being paid to tell us what the law is be required to opine on what is the “best” interpretation? What are they being paid for? Sure sounds to me like a “doctrine of judicial task avoidance.” 

And, of course, given a choice of possible interpretations these days, the BIA almost invariably chooses that which is most favorable to DHS and least favorable to the respondent.

Why shouldn’t a respondent, particularly one seeking potentially life or death relief like asylum, have notice of what the Immigration Judge expects him to produce to corroborate his otherwise credible testimony? For Pete’s sake, even the “Legacy INS” and the USCIS, hardly bastions of due process, gave applicants for benefits the infamous “Notice of Intent to Deny” (“NID”) setting forth the evidentiary defects and giving the applicant an opportunity to remedy them before a final decision is made.  Seems like a combination of fundamental fairness and common sense.

There now is a conflict between the Ninth and Second Circuits, both of which get lots of Petitions to Review final orders of removal. Consequently, the issue is likely to reach the Supremes, sooner or later. Interestingly, Justice Gorsuch was a critic of Chevron deference, specifically in immigration cases, when he was on the 10th Circuit. We’ll see how he treats Chevron now that he is in a position to vote to modify or overrule it.

Here’s my previous post on Justice Gorsuch and Chevron:

https://wp.me/p8eeJm-eT

PWS

02-25-18

CALLING ALL FORMER IMMIGRATION JUDGES & BIA APPELLATE JUDGES: DUE PROCESS FOR CHILDREN IS ON THE LINE: Join In An Amicus Brief Supporting A Right To Counsel For Children In Immigration Court — Motion For Rehearing En Banc in C.J.L.G. v. Sessions! —Judges Gossart, Klein, Rosenberg, & I Are Already On Board! — Please Join Us!

Hi Judges Klein, Schmidt, Rosenberg, and Gossart:

Hope all of you are well. Thanks so much for your help with an amicus brief in support of rehearing en banc in CJLG v. Sessions, our children’s right to appointed counsel case. I’m copying in Buzz Frahn and his team from Simpson Thacher, who have agreed to draft the amicus brief on your behalves. We’ve given Buzz the previous briefs submitted in JEFM, and he and his team are getting started.

I think all of you can take it from here. It would be great if we could get your help in reaching out to other former IJs or BIA members who may be interested in participating as amici in our case.

Please let me know if you have any questions, or if I can do anything else to help. We’ll be in touch with the Simpson Thacher folks regarding some issues that might be worth highlighting in the amicus, and I’m sure they’d welcome feedback from all of you as well. Thanks again and have a great weekend!

Stephen

Stephen B. Kang
Pronouns: he/him/his
Detention Attorney
ACLU Immigrants’ Rights Project
39 Drumm Street, San Francisco, CA 94111
415.343.0783 | skang@aclu.org
*********************

In C.J.L.G. v. Sessions, a 9th Circuit 3-Judge Panel found that: 1) the child respondent was denied due process at his Immigration Court hearing; 2) he suffered past persecution; 3) but there was no “prejudice” because he couldn’t establish “nexus.” Therefore, the panel rejected his claim that he had a right to appointed counsel.

The “no prejudice” finding is basically ludicrous! “Nexus” is such a complex and convoluted legal concept that judges at all levels get it wrong with regularity. How do we know that this child couldn’t show “nexus” when he and his mother didn’t have any idea of the legal and evidentiary standards they were required to meet?

On Friday, I attended a FBA Immigration/Asylum program at NYU Law. It was clear from the outstanding panel on Northern Triangle asylum that claims very similar, if not identical, to CJLG’s are being granted in many Immigration Courts.

But, it requires many hours of client interviews, extensive trial preparation, and the knowledge and ability to present claims often under alternative legal theories. No unrepresented child has a fair chance to make such  a winning presentation on asylum or Convention Against Torture Withholding in Immigration Court, even though there are “life or death” stakes.

Here’s a link to my previous blog on C.J.L.G.:

https://wp.me/p8eeJm-22V

We would love to have your support in speaking out against this injustice and systemic denial of due process to our most vulnerable.

Please contact Judges Gossart, Klein, Rosenberg, or me if you wish to join our effort.

Best wishes and many thanks for considering this request.

PWS

02-25-18