March 2018 – Page 6 – immigrationcourtside.com

SESSIONS APPEARS TO BE MOUNTING ALL-OUT ATTACK ON DUE PROCESS AND THE RIGHTS OF VULNERABLE ASYLUM SEEKERS IN “CAPTIVE” U.S. IMMIGRATION COURTS — “Out Of The Blue” Certification Of Matter Of A-B- Could Turn Deadly For Those At Risk!

Cite as 27 I&N Dec. 227 (A.G. 2018) Interim Decision #3918

Matter of A-B-, Respondent

Decided by Attorney General March 7, 2018

U.S. Department of Justice Office of the Attorney General

The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to whether being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum and withholding of removal, ordering that the case be stayed during the pendency of his review.

BEFORE THE ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.l(h)(l)(i) (2017), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. The Board’s decision in this matter is automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist me in my review, I invite the parties to these proceedings and interested amici to submit briefs on points relevant to the disposition of this case, including:

Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum or withholding of removal.

The parties’ briefs shall not exceed 15,000 words and shall be filed on or before April 6, 2018. Interested amici may submit briefs not exceeding 9,000 words on or before April 13, 2018. The parties may submit reply briefs not exceeding 6,000 words on or before April 20, 2018. All filings shall be accompanied by proof of service and shall be submitted electronically to AGCertification@usdoj.gov, and in triplicate to:

United States Department of Justice Office of the Attorney General, Room 5114 950 Pennsylvania Avenue, NW Washington, DC 20530

All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored.

227

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Something pretty strange is going on here! The BIA has never, to my knowledge, held that “being a victim of private criminal activity constitutes a cognizable ‘particular social group.'” Quite to the contrary, the BIA has always found that “victims of crime” are not a PSG.

Moreover, “Matter of A-B-” is not a BIA precedent. In fact, it’s impossible to tell from the cryptic certification what facts or context the amici should address.

Stay tuned. But, given Sessions’s record of hostility and outright misrepresentations concerning asylum seekers, we could be heading for a monumental, years long battle in the Article III Federal Courts as to whether the U.S. will continue to honor our Constitutional, statutory, and international obligations to protect “refugees” applying for asylum.

PWS

03-07-18

WNYC’S BETH FERTIG FERRETS OUT FOOLISHNESS BEHIND THE SESSIONS/DHS ATTACK ON ADMINISTRATIVE CLOSING AND PROSECUTORIAL DISCRETION – I’m Quoted and Pictured!

https://www.wnyc.org/story/trump-administration-reviewing-thousands-deportation-cases-once-put-pause

Beth reports:

“Last year, a young mother who came to the U.S. illegally from Mexico as a child thought she’d essentially won her fight against deportation.

Twenty-four year old Jenny isn’t eligible for DACA, or Deferred Action for Childhood Arrivals. She was in the midst of immigration court proceedings when she told her attorney that she was a victim of domestic violence, which is why WNYC agreed not to use her real name.

In May, Jenny reported her boyfriend to police for allegedly beating and trying to choke her. That action suddenly changed the course of her immigration case.

Jenny was able to apply for what’s called a U visa that would allow her to stay in the U.S. It’s for immigrant victims of crime who cooperate with law enforecement.

The waiting list for a U visa is about three years. But because Jenny met the criteria, and got the Brooklyn District Attorney’s office to sign off on her documents, the immigration judge agreed to put her cause on hold. The legal term for this is administrative closure. The government would no longer seek to deport her while she waited for her special visa.

But a month later, Immigration and Customs Enforcement (ICE) asked the same judge to recalender Jenny’s case and put it back on the docket — meaning she’d have to fight against deportation all over again.

The reason? ICE wrote that Jenny’s U visa was “speculative” and “not available within a reasonable period of time.” The agency said three years was too long to wait — even though they’re controlled by another governmental agency, U.S. Citizenship and Immigration Services (both are within the Department of Homeland Security). ICE said she could wait for her U visa while in Mexico.

The agency also noted that Jenny had been convicted of petit larceny when she was 18. Though it’s not considered a crime that could lead to an immigrant’s removal, it brought her to ICE’s attention a few years ago, and her unlawful presence in the U.S. triggered the deportation proceedings.

For Jenny, the about face was extremely upsetting after suffering domestic abuse and moving into a women’s shelter. “I seek help and I’m still kind of being, you know, bullied,” she said.

Her attorney, Kendal Nystedt of the immigrant rights group Make the Road New York, said ICE seemed to mischaracterize immigration law and said its arguments “were also insulting given the humanity of my client.”

The judge apparently agreed. Late last year, in a one page memo, he denied the government’s request and let Jenny remain in the U.S. But data obtained by WNYC shows that Jenny wasn’t the only immigrant who thought they could stay, only to have the government give their case a second look.

In Fiscal Year 2017, ICE asked to recalendar almost 9400 cases that were administratively closed, or put on pause. That’s an increase of almost 74 percent from the year before President Trump took office. In response, it appears immigration judges may be applying more scrutiny to the government’s requests. They granted 85 percent of those motions to put the cases back on their dockets in 2017, compared to 96 percent in 2016.

When asked why the government is revisiting more cases, ICE spokewoman Jennifer Elzea said the agency generally reviews cases that were administratively closed “to see if the basis for prosecutorial discretion is still appropriate.”

But it’s clear this legal strategy also lets the Trump administration try to deport more immigrants. Former immigration judge Andrew Arthur said there’s a good reason. “Under the Obama Administration, administrative closure was treated as a form of amnesty,” he explained.

Arthur is a fellow with the Center for Immigration Studies, a think tank that supports more restrictive immigration policies. Without commenting on Jenny’s situation he said some cases that were administratively closed involved immigrants who may never qualify for whatever benefit they thought they were likely to receive. But he said the previous administration didn’t act because there were “not deemed a priority for removal.”

In other words, he Obama administration had made criminals the top priority for removal, letting too many others remain.

Retired immigration judge Paul Wickham Schmidt

Beth Fertig/WNYC

Another former immigration judge said that Obama era policy made sense, however. Paul Wickham Schmidt granted administrative closures when he worked in the Arlington, Virginia court.

“An example of a type of case that gets closed quite a bit are cases of individuals who have relatives petitioning for them. And there’s a big backlog of petitions,” Schmidt explained. “So rather than continuing the case time after time, sometimes for years, judges were saying ‘look I’m going to take this case off the docket.'”

He said this management strategy was necessary. The immigration courts have a backlog of 670,000 thousand pending cases. “You’re not even going to complete 670,000 cases probably within my lifetime. You’ve got to decide which cases really belong at the front of the line and which cases you’re not going to prioritize,” he said. “Wasting time in immigration court just doesn’t make sense.”

Despite concerns about further burdening an immigration court system that’s already bursting at the seems, Attorney General Jeff Sessions is considering a much more dramatic step than simply seeking to recalendar the 9400 cases that were reviewed last year. He’s looking into recalendaring all cases that were administratively closed – and there are estimates there could 350,000 of them.”

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Go to the link to hear the audio from WNYC!

Putting cases like “Jenny’s” back on the already overcrowded dockets is cruel, counterproductive, and wasteful of judicial time. She’s established the qualifications for a U visa, for Pete’s sake. There really isn’t any “uncertainty” — if she stays out of trouble with the law, she’ll get a U visa when her number comes up. No reason on earth for her to “occupy space” on the Immigration Court’s docket.

If she were unwise enough to get into legal trouble before then (seldom happens, in my experience), then that would be the time to 1) revoke her U visa approval, and 2) put her back on the docket. With dockets stretching out for years, why would an Immigration Judge do anything other than keep putting a case like Jenny’s at the end of the docket until her “U number” is reached?

Just because somebody is “removable” doesn’t mean that it makes any sense to put them on already overcrowded Immigration Court dockets. That’s particularly true of an individual who meets the requirements for a legal status (albeit one that because of the arcane structure of the Federal Regulations, an Immigration Judge can’t actually grant).

It’s analogous to the local prosecutor jamming a judge’s docket with jaywalking, littering, and unleashed dog cases so that there isn’t time to hear felony rape and robbery cases! No other law enforcement agency in America that I’m aware of operates without any real prosecution priorities the way Sessions and the DHS are trying to do in this Administration.

And, of course, one large class of “Administratively Closed” cases involves those who had their DACA applications approved by USCIS after Removal Proceedings had been initiated. What would be the point of putting such cases “back on the docket” if DACA were actually terminated?

Even the DHS claims that “Dreamer” cases would not be an “enforcement priority.” (Although, during the Trump Administration such claims by DHS have often proved to be “not credible.”) Therefore, it would literally be years before they could be heard. And many of them have strong cases for other forms of immigration relief such as Cancellation of Removal. I want to believe that the fate of the Dreamers will be resolved long before then.

PWS

03-07-18

NEW SCHOLARSHIP FROM PROFESSOR RUTH ELLEN WASEM, LBJ SCHOOL @ UT TAKES ON PROBLEMS OF 21ST CENTURY IMMIGRATION GOVERNANCE — “Immigration is not a program to be administered; rather, it is a phenomenon to be managed.”

Immigration Governance for the Twenty-First

Ruth Ellen Wasem The University of Texas at Austin

6 Journal on Migration and Human Security 97 (2018)

KEY QUOTE:

Even with fragmented governance and strained resources, the US immigration system has enjoyed successes. Each year, approximately one million foreign nationals legally become permanent residents in the United States. In FY 2015 and FY 2016, the Bureau of Consular Affairs issued over 10 million visas each year to foreign nationals coming to the United States as nonimmigrants (i.e., for a temporary purpose and a temporary period of time) and over half a million visas to LPRs (Bureau of Consular Affairs 2017). CBP admitted almost 77 million foreign nationals as nonimmigrant admissions to the United States in FY 2015 (Office of Immigration Statistics 2016). That year, DOL processed 711,820 employer applications for 1,580,778 positions for temporary and permanent labor certifications Immigration Governance for the Twenty-First Century 117 (Office of Foreign Labor Certification 2016). In FY 2015, there were 730,259 LPRs who became US citizens. That same year, the United States admitted 69,920 refugees, and USCIS approved 26,124 asylees. DHS apprehended 462,388 foreign nationals and deported 444,431 foreign nationals in FY 2015. Another 253,509 foreign nationals were denied entry, and 129,122 foreign nationals returned home without a formal order of removal (Office of Immigration Statistics 2016). In FY 2016, EOIR judges received 328,122 cases and completed 273,390, including those of 8,726 foreign nationals who were granted asylum (EOIR 2017). Considerable credit is due to the people carrying out immigration-related responsibilities across the federal government.

Immigration is not a program to be administered; rather, it is a phenomenon to be managed. While there are limits to how much one government can control migration, the building blocks in Figure 3 offer a reasonable set of priorities. Effective immigration governance, coupled with laws and policies that incorporate the national interests, is key to maintaining a robust sovereign nation.

Get the entire article, which I highly recommend, at this link:

Wasem,ImmigrationGovernance21st Century

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Words of wisdom, to be sure. If only our policy makers had the same degree of understanding.

Today, we operate on an illusion that a few folks sitting in Washington, D.C. can “pull all the strings” to seal borders, override market forces, ignore international conditions and agreements, change behavior in foreign countries, and dominate forces of human migration that have been at work since before all of us were born and will continue long after we’re all gone. It’s a toxic mix of arrogance and ignorance that will leave immigration and refugee policy in tatters for years to come.

I can only hope that there are those out there in the upcoming generations who will bring to the immigration phenomenon practical scholarship, reason, humanity, fairness, and better ideas on management of our laws for the benefit of our country and humanity as a whole.

PWS

03-07-18

HON. LORY DIANA ROSENBERG COMMENTS ON AG’S DECISION IN MATTER OF E-F-H-L-!

Paul (and all) – Here is my preliminary response to your Courtside post, which you may publish:

The AG may be motivated by any number of explanations, as Immigration Courtside thoughtfully suggests. Nevertheless, the AG’s cryptic and unreasoned ruling will predictably engender more litigation and take up more court time than arguably may be saved by denying all asylum seekers access to the due process protections codified in the statute and regulations, and reiterated in numerous currently standing BIA precedents and federal circuit court decisions.

First, he vacated a 4 year old precedent decision of the Board of Immigration Appeals, an action that should not be taken lightly. Cf. Matter of E-F-H-L- 26 I&N Dec. 319 (BIA 2014)(remanding with instructions to honor the guarantee iof a full evidentiary hearing on an asylum claim). The AG contends that “[b]ecause the application for relief which served as the predicate for the evidentiary hearing required by the Board has been withdrawn with prejudice, the Board’s decision is effectively mooted.” Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018). To the contrary, it is worth noting that, historically, many of the Board’s precedent decisions, which have been rendered moot by federal circuit court reversals or remands, have nonetheless remained in force and served as precedent in all cases other than that of the named respondent.

Assuming the AG’s decision was more than a knee-jerk, irrational, result-oriented response to an IJ’s administrative close order, but a decision fit for an Attorney General, he is expected to have read the Board’s reasoning in reaching the outcome it reached in E-F-H-L- (BIA). The Board plainly recognized the applicability of the statutory provisions that guarantee “a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government.” See section 240(b)(4)(B) of the Act, 8 U.S.C. § 1229a(b) (4)(B)(2012)(governing procedures in removal proceedings). In contrast, the AG’s opinion contains no reasoning what so ever and reveals no effort to respect the terms of the statute, much less to distinguish them in any way.

Second, the Board’s decision in E-F-H-L- also cited to governing ”regulations implementing these statutory provisions in the context of asylum and withholding of removal applications,” which provide that,

such applications for relief filed with the Immigration Court will be decided “after an evidentiary hearing to resolve factual issues in dispute,” 8 C.F.R. § 1240.11(c)(3) (2013).

such an evidentiary hearing will entail the respondent “shall be examined under oath on his or her application and may present evidence and witnesses in his or her own behalf,” 8 C.F.R. § 1240.11(c)(3)(iii).

such regulations also apply to applications for withholding or deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (citation omitted).

The Board specifically recognized that “[t]hese regulations clearly give the Immigration Judge ‘the authority . . . to properly control the scope of any evidentiary hearing,’ 8 C.F.R. § 1240.11(c)(3)(ii) . . .” and to discontinue or limit an evidentiary hearing “in the interests of efficiency, including by limiting testimony and focusing issues.” Nonetheless, the Board ruled in E-F-H-L- that, at a minimum, there must be an evidentiary hearing, which includes “an opportunity for the respondent to present evidence and witnesses in his or her own behalf.” See 8 C.F.R. § 1240.11(c)(3). In contrast, the AG’s opinion offers no colorable justification for abrogating these regulations, which remain in force, making his action in vacating the Board’s precedent in E-F-H-L- ultra vires.

Third, the Board’s decision refers to numerous Board precedent decisions standing for the principles elucidated concerning the need for taking oral testimony and for a meaningful evidentiary hearing in adjudicating asylum applications. See e.g., Matter of Fefe, 20 I&N Dec. 116, 118 (BIA 1989); Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987); Matter of Interiano-Rosa, 25 I&N Dec. 264, 266 (BIA 2010); cf. Matter of Ruiz, 20 I&N Dec. 91, 93 (BIA 1989) (holding that in absentia proceedings should have been reopened once the alien established reasonable cause for his failure to appear, because he retained the right to present his asylum claim at a full evidentiary hearing, regardless of whether prima facie eligibility for relief had been shown).Matter of C-B-, 25 I&N Dec. 888, 890−91 (BIA 2012);

Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998). No matter what the Attorney General’s vacation of the Board’s E-F-H-L- precedent is read to mean, the AG fails to indicate that any of these other Board precedents governing evidentiary hearings are disturbed or no longer in effect and they remain in force.

What is more, the Board’s decision recognized that numerous federal courts of appeal nationwide have endorsed and upheld the statutory and regulatory promise of a full and fair evidentiary hearing. See e.g., Litvinov v. Holder, 605 F.3d 548, 555−56 (8th Cir. 2010); Hoxha v. Gonzales, 446 F.3d 210, 214, 217−18 (1st Cir. 2006); Arulampalam v. Ashcroft, 353 F.3d 679, 688 (9th Cir. 2003). See also Sankoh v. Mukasey, 539 F.3d 456, 467 (7th Cir. 2008); Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006); Mekhoukh v. Ashcroft, 358 F.3d 118, 129 & n.14 (1st Cir. 2004); cf. Oshodi v. Holder, 729 F.3d 883, 889−93 (9th Cir. 2013) (en banc) (holding that an alien’s Fifth Amendment due process right to a full and fair hearing, which includes the opportunity to present evidence and testify on one’s behalf, was violated where the Immigration Judge denied relief solely on an adverse credibility finding after refusing to allow the alien to testify to the contents of his applications). Notably, the AG’s decision vacating E-F-H-L- does not trigger Brand X authority such that the rulings of these federal courts are supplanted or no longer control administrative hearings taking place within the jurisdiction of those courts.

Accordingly, for reasons of statutory, regulatory, and administrative precedential authority, and reasons of federal acquiescence, the AG’s vacation of Matter of E-F-H-L has no impact on the right to an evidentiary hearing on an asylum application. By the AG’s own admission in the case vacated, upon remand, the respondent had withdrawn his asylum application with prejudice in favor of administrative closure to permit an I-130 petition to be adjudicated. Thus, the AG’s ruling vacating E-F-H-L- cannot stand for any principled holding with respect to the right to an evidentiary hearing in asylum cases.

In fact, the IJ’s order of administrative closure of the removal hearing, while allowing USCIS to engage in a timely adjudication of a petition that ultimately might confer lawful status on the respondent, had the mutually beneficial effect of freeing up the court’s time to attend to its heavily backlogged docket. Upon recalendaring in the instant case, the respondent may wish to challenge his previous “withdrawal with prejudice” and seek to re-raise his asylum claim on due process grounds.

Moreover, in light of the AG’s decision, respondents in general would be well-advised to exercise their statutory and regulatory rights to a full evidentiary hearing in their asylum claims, notwithstanding the potential availability of other forms of relief. Likewise, attorneys would be well-advised to consider their obligations in relation to Matter of Lozada, before counseling respondents to withdraw viable applications. The AG’s decision sends a clear message that notwithstanding their best intentions, IJs intentions to fairly resolve removal hearings may be disrupted without notice.

Beyond inefficiently and ineffectively usurping the IJ’s authority to control his or her docket, it is unclear just what the AG intended to accomplish. We are left, perhaps, with much “sound and fury, signifying nothing.” Shakespeare, Macbeth Act 5, scene 5.

IDEAS CONSULTATION and COACHING
Immigration Defense & Expert Advocacy Solutions

Empowering Successful Immigration Lawyers

www.loryrosenberg.com

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I agree with Lory’s analysis.

Sessions doesn’t do anything without a reason.

We know that:

1) He falsely claims that asylum fraud is a primary contributing factor to the presence of 11 million undocumented individuals. (It isn’t! The vast bulk of the “11 million” were never in the asylum system. I didn’t do the math, but I doubt that there have been anything approaching 11 million asylum applications since the enactment of the “Refuge Act of 1980. While there no doubt have been documented instances of asylum fraud, they would account for only an infinitesimally small portion of the 11 million — mostly law-abiding and productive — undocumented residents trashed by Sessions. Moreover, those engaged in asylum fraud often are eventually exposed and removed and/or jailed).

2) He appears to want to eliminate or severely limit administrative closing which has helped control and rationalize Immigration Court dockets.

3) He wants to dishonestly shift the blame for the backlog from the DOJ which is responsible for “Aimless Docket Reshuffling” over several Administrations to the private bar.

4) He is opposed to prosecutorial discretion and prioritization which are the foundation of all other functioning parts of the U.S. justice system.

5) He has no respect for immigrants (legal or undocumented), our Constitution, the law, or any judge who disagrees with his extreme right-wing xenophobic views.

All of this spells big trouble for the already failing U.S. Immigration Court System and lots of wasteful, additional litigation to vindicate migrants’ statutory and Constitutional rights.

Go New Due Process Army!

PWS

03-07-17

PROFESSOR CORI ALONSO-YODER ANALYZES SUPREME’S JENNINGS V. RODRIGUEZ

https://www.gwlr.org/jennings-v-rodriguez-against-the-backdrop-of-executive-enforcement-and-legislative-inaction-the-court-revisits-the-issue-of-prolonged-immigration-detention

Mar. 5, 2018

Jennings v. Rodriguez, 583 U.S. ___ (2018) (Alito, J.).
Response by Cori Alonso-Yoder
Geo. Wash. L. Rev. On the Docket (Oct. Term 2017)
Slip Opinion | New York Times | SCOTUSblog

Jennings v. Rodriguez: Against the Backdrop of Executive Enforcement and Legislative Inaction, the Court Revisits the Issue of Prolonged Immigration Detention

Today marks President Trump’s deadline to Congress for addressing the question of Deferred Action for Childhood Arrivals, known as DACA. In the months since the Administration announced the end of the DACA program, the debate on immigration reform has expanded from the initial ultimatum to create a legislative alternative to the program, to new issues of restriction on current legal immigration, including the elimination of certain family-based categories and the repeal of the visa lottery system. After months of opportunity to address these questions, congressional efforts to reform immigration appear stalled beyond salvation, in no small part due to a clear lack of direction from the President himself. As a result, DACA seems destined to expire today due to inaction from leaders at the legislative and executive levels.

Onto this backdrop, the Supreme Court handed down its decision in Jennings v. Rodriguez¹ on February 27th. Writing for a five-to-three majority on issues related to immigration detention, Justice Samuel Alito reversed the Ninth Circuit Court of Appeals’ decision granting semiannual bond hearings to certain categories of immigrant detainees. Only Chief Justice Roberts and Justice Kennedy joined the Alito opinion in full, with Justices Gorsuch and Thomas declining to endorse the plurality’s view of a jurisdictional question in the case (for which Justice Thomas authored a concurrence). In the dissent, Justices Sotomayor and Ginsburg signed onto Justice Breyer’s passionate and lengthy opinion arguing for bail provisions to be extended to these detainees.

At issue in Jennings are conditions of detention and related questions of bond eligibility for individuals falling within three statutory categories, all of whom have been detained longer than six months. Lead plaintiff, Alejandro Rodriguez, represents the class as a whole as well as the category of individuals detained under 8 U.S.C. § 1226(c) (individuals who have been convicted of certain crimes or engaged in terrorist activities). The class also includes individuals detained under § 1225(b)(1)(B)(ii) (asylum seekers), and under § 1225(b)(2)(A) (applicants for admission who are not clearly entitled to be admitted, otherwise known as “arriving aliens”).

In its opinion, the Court rejected the Ninth Circuit’s construction of §§ 1225(b), 1226(a), and 1226(c) as requiring a six-month periodic review to save the statutory framework from constitutional nullification. Relying on the Court’s decision in Zadvydas v. Davis² and the canon of constitutional avoidance, the lower court reasoned that a six-month bond review must be interpreted into the relevant provisions in order for the framework to survive constitutional scrutiny under the Fifth Amendment’s Due Process Clause. The Court found this interpretation “implausible,” holding that the clear language of those statutory provisions is susceptible to only one interpretation that does not contemplate a periodic custody review, and that the canon of constitutional avoidance only applies where more than one plausible interpretation of the statute is available.³ The Court also distinguished its decision in Zadvydas by underscoring the ambiguity of the potential length of detention in the statute at issue in that case. By contrast, in Jennings the Court reasons that Congress left no room for similar interpretation in this case, having explicitly provided for conclusion of detention of these individuals only in certain circumstances clearly expressed in the relevant statutes.

The majority proceeds to reverse the Ninth Circuit’s construction of the detention statutes, but declines to reach the Fifth Amendment and Due Process arguments raised by the respondents. Instead, the Court remands the case to the Court of Appeals for further proceedings to consider the constitutional merits of those claims, while simultaneously suggesting that a class action may not be the appropriate vehicle for those individualized claims.

The opinion of the Court is striking because the dissenting justices feel no such compunction to reserve the constitutional questions. In fact, Justice Breyer’s opinion rests almost exclusively on Due Process and, to a lesser extent, Eighth Amendment jurisprudence, spending little time relative to the majority in interpreting the relevant statutory provisions. Instead, Justice Breyer points to numerous factors to argue why the majority’s reading of the detention statutes cannot survive constitutional scrutiny and must be reconstructed to include a bond provision. Among these factors, he notes the sheer number of individuals detained under §§ 1225 and 1226, the increasingly lengthy terms of their detention, and the high likelihood of success on the merits for many within these categories in their claims for immigration relief.

Regarding the number of detainees affected by this decision, the dissent notes that nearly 20,000 individuals, 7500 asylum seekers, and 12,220 noncitizens who have completed terms of confinement for criminal convictions, fall within two of the three categories of detainee considered by the Court. The dissenting opinion also cites the length of detentions at issue, noting that they are now considerably longer than six months, and distinguishing this from the short-term detention of immigrant detainees addressed by the Court in Demore v. Kim.⁴ In concluding that the respondents should have access to a more flexible opportunity to apply for bond, the dissent is also persuaded by statistics showing that nearly two-thirds of the asylum seekers and 40% of those detained following criminal confinement ultimately prevail in applications to remain in the United States.

Also present in the dissent, but not in the opinion of the Court, is limited reference to increased immigration enforcement by the Trump Administration. While the politics of enforcement are not met head on, Justice Breyer’s dissent alludes to current events by citing President Trump’s Executive Order⁵ directing parole of detainees only under certain limited circumstances.⁶

As the lower court is left to address the constitutional questions, the Breyer dissent proves instructive by reaching elements of those arguments that the Court declines to take up in its majority opinion. Among the issues previewed in the dissent that are likely to arise on remand is the Government’s assertion that many of the respondents in Jennings cannot claim the protection of the Fifth Amendment because “the law treats arriving aliens as if they had never entered the United States; hence they are not held within its territory.”⁷ The dissent roundly dismisses this interpretation as “of course, false,”⁸ but the question will become an increasingly important one for the courts to address, especially as Jennings continues its trajectory through the federal appellate courts.

Indeed, the unsettled nature of the Jennings decision foreshadows a future in which the courts are likely to wrestle with increased calls to address these issues of detention and enforcement. For example, 8 U.S.C. § 1357(a)(3) gives Customs and Border Protection Agents broad powers of search and seizure without a warrant to enforce immigration laws within a broad reach of an international border,⁹ generally held to reach within 100 miles of the U.S. interior.

In addition, the Trump Administration has signaled an intent to aggressively enforce the nation’s existing immigration laws, while also expanding the reaches of the law to further restrict legal immigration. Along with Executive Order No. 13,767, cited in the Jennings dissent, the Trump Administration also published Executive Order No. 13,768, “Enhancing Public Safety in the Interior of the United States.”¹⁰ Taken together (and issued the same day within the first week of the new administration), these two Executive Orders enshrined the campaign promises of the new President to act aggressively and expansively to secure the border and enforce immigration law within the interior of the United States.

According to Immigration and Customs Enforcement data, these efforts have proven effective, with immigration officials charting an increase of 42% in administrative arrests.¹¹ Meanwhile, the immigration courts’ backlogs continue to grow, expanding from approximately 212,000 cases at the beginning of fiscal year 2006 with a median wait pending time of 198 days, to approximately 437,000 cases in fiscal year 2015 with a median pending time of 404 days.¹² These numbers reflect a judiciary crippled by backlog and increased enforcement even before the injection of the new administration’s revamped and expanded priorities for enforcement. In the current climate of legislative inaction, it is likely the courts will continue to be the explainers and problem solvers for a system desperately in need of reform. As with questions of immigration reform, the Jennings remand means that we are likely to be revisiting these issues again not long from now.

Ana Corina “Cori” Alonso-Yoder is the Practitioner-in-Residence and Clinical Professor of Law with the Immigrant Justice Clinic at the American University Washington College of Law. Professor Alonso-Yoder’s commentary on immigration law and immigrants’ rights has been featured by ABC News, The Atlantic, Washington Monthly, and The National Law Journal & Legal Times among others.

Jennings v. Rodriguez, No. 15–1204, slip op. (U.S. Feb. 27, 2018).

533 U.S. 678 (2001) (requiring a custody review hearing after six months of detention in order to avoid unconstitutional indefinite detention where an individual cannot be removed from the United States).

Jennings, slip op. at 12–13.

538 U.S. 510, 530 (2003) (noting that the detention at issue in that case “lasts roughly a month and a half”).

Exec. Order No. 13,767, 82 Fed. Reg. 8793 (Jan. 30, 2017).

Jennings, slip op. at 25 (Breyer, J., dissenting).

Id. at 7.

Id.

8 U.S.C. § 1357(a)(3) (2012).

Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 30, 2017).

Immigration & Customs Enf’t, ICE Impact in FY 2017 (2018), https://www.ice.gov/topics/fy2017.

U.S. Gov’t Accountability Off., GAO-17-438, Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges (2017).

Recommended Citation Cori Alonso-Yoder, Response, Jennings v. Rodriguez:Against the Backdrop of Executive Enforcement and Legislative Inaction, the Court Revisits the Issue of Prolonged Immigration Detention, Geo. Wash. L. Rev. On the Docket (Mar. 5, 2018), https://www.gwlr.org/jennings-v-rodriguez-against-the-backdrop-of-executive-enforcement-and-legislative-inaction-the-court-revisits-the-issue-of-prolonged-immigration-detention.

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Thanks for a great article, Cori!

Here are links to previous posts on Jennings:

https://wp.me/p8eeJm-2e8

https://wp.me/p8eeJm-2cL

https://wp.me/p8eeJm-1wI

The third of these posts illustrates how Constitutionally required bond hearings change and save lives and how the majority’s short-shrifting of Constitutional Due Process could actually cost lives.

PWS

03-07-18

GONZO’S WORLD: WHILE PUTIN DISMANTLES US DEMOCRACY, GONZO ATTACKS CAL. – Gov. Brown Calls DOJ Suit “Political Stunt!”

https://www.huffingtonpost.com/entry/doj-sanctuary-cities-suit_us_5a9ec5a4e4b0e9381c12c0e8

Elise Foley reports for HuffPost:

WASHINGTON — The Trump administration will ramp up its fight against so-called “sanctuary” policies by filing a lawsuit on Tuesday against the state of California over its laws meant to protect undocumented immigrants.

The lawsuit, which Attorney General Jeff Sessions will formally announce on Wednesday, is the latest in a string of moves by the White House, Department of Justice and Department of Homeland Security to combat local efforts to limit police cooperation with deportation. Thus far, this has largely involved condemnations and threats, including the withholding of federal funds and prosecuting public officials.

Now, the administration is seeking to block three California laws by arguing that they violate the Constitution and federal law.

“The Department of Justice and the Trump administration are going to fight these unjust, unfair and unconstitutional policies that have been imposed on you,” Sessions is expected to tell law enforcement officers during a speech on Wednesday, according to prepared remarks. “We are fighting to make your jobs safer and to help you reduce crime in America. And I believe that we are going to win.”

To make its case, the DOJ is in part pointing to a ruling on a very different state-level immigration law: Arizona’s SB 1070, which was meant to expand local police efforts to find and arrest undocumented immigrants. The Supreme Court sided with the Obama administration by striking down major provisions of that law in 2012.

The Trump administration plans to argue that California is similarly overstepping its authority, senior DOJ officials said Tuesday. The lawsuit will challenge three laws that DOJ officials say hurt the government’s ability to carry out immigration enforcement.

Supporters of the California laws and “sanctuary” policies in general argue that they make communities safer by allowing local police to work better with immigrant communities and focus time and resources on duties other than immigration matters. (“Sanctuary” policies differ widely from place to place and there is no set definition for the term.)

California Gov. Jerry Brown (D) responded to Sessions’ suit Tuesday evening, calling it a “political stunt.”

“At a time of unprecedented political turmoil, Jeff Sessions has come to California to further divide and polarize America,” he said in a statement. “Jeff, these political stunts may be the norm in Washington, but they don’t work here. SAD!!!”

. . . .

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Read Elise’s full article at the above link.

So far, Gonzo hasn’t had much luck on his anti-Sanctuary Cities campaign. But, sooner or later, if he keeps filing suits, he’ll probably get a Federal Judge who agrees with at least part of his position.

The suit has little if anything to do with effective law enforcement and everything to do with right-wing politics. Strangely, for one who is so disdainful of lawyers and their functions in society, Gonzo’s regime has been essentially a “full employment for lawyers” boon. And, of course, “Chuckie” Cooper is on Gonzo’s personal retainer, trying, so far successfully, to keep him out of jail in the Russia investigation.

PWS

03-07-18

STORM CLOUDS ON THE HORIZON FOR TRUMPIE – AMERICA’S FAVORITE STRIPPER FILES SUIT TO VOID NON-DISCLOSURE AGREEMENT!

https://www.huffingtonpost.com/entry/stormy-daniels-sue-trump_us_5a9f3867e4b002df2c5ea659

Sarah Ruiz-Grossman reports for HuffPost:

Stephanie Clifford (aka Stormy Daniels), who claims she had an affair with Donald Trump, is now suing the president.

According to a lawsuit Clifford filed in Los Angeles on Tuesday, a copy of which was obtained by NBC News, Trump didn’t sign a nondisclosure agreement with the former adult film star, which blocked her from disclosing their 2006 relationship. According to the suit, Clifford and Trump’s lawyer signed the document, but Trump did not, allegedly making the agreement invalid.

Clifford and Trump’s attorney Michael Cohen both signed what the suit calls a “hush agreement” and a side letter agreement on Oct. 28, 2016, just 11 days before the presidential election. The documents are appended to the lawsuit, according to NBC.

The 2016 “hush agreement” detailed that $130,000 would be paid to Clifford’s then-attorney in exchange for Clifford not disclosing any confidential information about Trump or his sexual partners. The suit claims Clifford and Trump’s intimate relationship started in the summer of 2006 and went “well into the year 2007.”

Clifford’s attoreny, Michael Avenatti, released a copy of the complaint for declaratory relief on Twitter on Tuesday.

In January, The Wall Street Journal reported that Clifford had an affair with Trump in 2006, the year after he married Melania Knauss on Jan. 22, 2005, and a few months after their son, Barron, was born on March 20. The report said Clifford was paid $130,000 to sign a nondisclosure agreement and not discuss the relationship. At the time, Clifford’s lawyer released a statement from the actress denying the affair.

In the lawsuit, Clifford claims that Cohen had tried to block her from talking about the affair as recently as Feb. 27, according to NBC. The suit also claims that in January, Cohen, “concerned the truth would be disclosed … through intimidation and coercive tactics, forced Ms. Clifford into signing a false statement wherein she stated that reports of her relationship with Mr. Trump were false.”

After Cohen told The New York Times last month that he had in fact paid Clifford $130,000 in 2016, Clifford said she was free “to tell her story” because Cohen’s discussion of the agreement invalidated it. Cohen at the time did not say what the payment was for and said that neither the Trump Organization nor the Trump campaign reimbursed him for the payment.

The White House has denied the affair.

Attorney Avenatti told HuffPost late Tuesday: “We confirm all facts as alleged in the complaint.”

HuffPost also reached out to the White House and Cohen for comment but did not receive a response as of this posting.

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

No dull moments in the White House of Sleaze. But, the Trump Administration has so many violations of law and ethics in play every day that most of them more or less sink “below the radar screen.” Still, the “Stormster” doesn’t seem to be going quietly into the night.

PWS

03-07-18

TAL @ CNN – When It Comes To DACA, DOJ Appears To Be Rewriting History – There Was Nothing “Discretionary” About Sessions’s Advice to DHS To Terminate Program!

http://www.cnn.com/2018/03/06/politics/daca-decision-trump-win/index.html

Judge sides with Trump on DACA, but blasts White House, Congress for inaction

By: Tal Kopan, CNN

The Trump administration won a victory in court Monday on its plan to end the Deferred Action for Childhood Arrivals program, but not before a federal judge criticized the White House and Congress for failing to work together.

The ruling is a relatively symbolic win after two other federal courts have already halted the President’s effort to end the program nationwide.

Still, the administration is hailing the ruling as evidence that it has the authority to terminate DACA, a program that protected young undocumented immigrants who came to the US as children from deportation, as President Donald Trump decided in September.

In a 30-page opinion, Maryland District Judge Roger Titus rejected a challenge to the termination of DACA, saying the administration did in fact have a “reasonable” justification given it concluded the program was likely unlawful.

Previous judges have found the opposite — that there’s a plausible argument the government’s reasoning in this case was “arbitrary and capricious.”

The Supreme Court last week declined the administration’s request to leapfrog the appellate courts and immediately consider the other judges’ rulings, meaning until a further court rules in what will likely be several months, the administration must continue renewing two-year DACA permits.

Titus began his opinion with an unusual lamentation of the partisan nature of politics in this country, criticizing Congress and the administrations’ inaction on a permanent solution for DACA participants.

“This case is yet another example of the damaging fallout that results from excessive political partisanship,” Titus wrote.

“The highly politicized debate surrounding the DACA program has thus far produced only rancor and accusations,” he added. “During the recent debate over the rescission of DACA, the program even turned into a bargaining chip that resulted in a brief shutdown of the entire federal government earlier this year.”

He added: “The result of this case is not one that this court would choose if it were a member of a different branch of our government. This court does not like the outcome of this case, but is constrained by its constitutionally limited role to the result that it has reached. Hopefully, the Congress and the President will finally get their job done.”

In a statement, Justice Department spokesman Devin O’Malley called the decision “good news” and criticized the rebukes from previous judges.

“The Department of Justice has long maintained that DHS acted within its lawful authority in making the discretionary decision to wind down DACA in an orderly manner, and we welcome the good news today that the district court in Maryland strongly agrees,” O’Malley said. “Today’s decision also highlights a serious problem with the disturbing growth in the use of nationwide injunctions, which causes the Maryland court’s correct judgment in favor of the government to be undermined by the overbroad injunctions that have been entered by courts in other states.”

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Contrary to the DOJ’s current claim, that the decision to terminate DACA was “discretionary,” Sessions has consistently taken the position that the DACA program was “illegal” and therefore the Administration had no choice but to terminate it. Here’s a copy of his letter to then Acting DHS Secretary Duke. No mention of “discretion” that I can find:

ag_letter_re_daca

Moreover, contrary to some of the Administration’s blabber, Judge Titus did not endorse Sessions’s view that DACA was illegal. Rather the Judge found:

Given the fate of DAPA, the legal advice provided by the Attorney General, and the threat of imminent litigation, it was reasonable for DHS to have concluded—right or wrong—that DACA was unlawful and should be wound down in an orderly manner. Therefore, its decision to rescind DACA cannot be arbitrary and capricious.

Judge Titus found that “reasonable legal minds may differ regarding [DACA’s & DAPA’s] lawfulness.” Indeed, Judge Titus clearly thought that the Administration had chosen to implement the wrong policy. He merely found that separation of powers prevented him from intervening to substitute his judgment for that of the Administration. Like virtually everyone else except Sessions, he viewed the situation of the DACA recipients as highly compelling and was critical of Congress and the Administration for failing to resolve it in favor of the DACA recipients.

Even when they supposedly “win,” Sessions and his DOJ minions seem tone-deaf to the “real messages” being sent by the Federal Judges who needlessly have been forced to rule on these cases that should never have happened had Congress taken appropriate actions to protect the Dreamers and the Administration exercised its power and judgment in a more humane manner.

PWS

03-06-18

US DISTRICT JUDGE ROGER W. TITUS IN MD REJECTS DACA CHALLENGE — Basically Finds Rescission Dumb But Legal, While Barring DHS From Using DACA Info In Removal Proceedings — Casa de Maryland v. DHS

Casa de Maryland v. DHS, D. MD., 03-05-18, Judge Roger W. Titus

While the Administration and right-leaning media are touting this as a “smashing victory” here’s what District Judge Titus really said:

The original Obama Administration DACA program was an exercise of prosecutorial discretion on which reasonable minds can differ as to its legality.
The Trump Administration had discretion either to continue the DACA program or not as an exercise of prosecutorial discretion.
The decision by the Administration to phase out DACA was subject to judicial review and the plaintiffs had standing to challenge it.
The DHS’s decision to phase out DACA upon receiving an opinion from Attorney General Sessions that it might well be held illegal in a threatened court action was reasonable.
The sometimes ill-advised and inflammatory statements by President Trump were not relevant to the basis for termination of DACA.
Although Judge Titus personally would have chosen a different policy approach from that of the Administration, under Constitutional separation of powers that policy decision was vested in the Executive and Congress, not the Courts, and the Administration had acted reasonably in this case.
The DHS is estopped from using information gathered during the DACA application process against individuals in Removal Proceedings except if “the Government needs to make use of an individual Dreamer’s information for national security or some purpose implicating public safety or public interest, the Government may petition the Court for permission to do so on a case-by-case basis with in camera review.”

Judge Titus’s decision actually more or less undermines the Administration’s frequent claims that DACA was “illegal” and that the Administration had “no choice” but to terminate it. Rather, the court held that legitimate unresolved questions had been raised about the DACA program’s legality and that in the face of those questions the Administration’s choice to proceed with a phased termination rather than trying to defend DACA in court was reasonable.

Additionally, as I had predicted, the court was unwilling to allow DHS to use DACA information against the individuals in Removal Proceedings. While this aspect of the case was :”under the radar” in most reports, it could well be another major practical/legal roadblock to the Administration’s actually removing many DACA recipients even if the injunctions against DACA termination eventually are lifted.

Here’s a “KEY QUOTE” from Judge Titus’s decision:

“The result of this case is not one that this Court would choose if it were a member of a different branch of our government. An overwhelming percentage of Americans support protections for “Dreamers,” yet it is not the province of the judiciary to provide legislative or executive actions when those entrusted with those responsibilities fail to act. As Justice Gorsuch noted during his confirmation hearing, “a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for the policy results he prefers rather than those the law compels.”

This Court does not like the outcome of this case, but is constrained by its constitutionally limited role to the result that it has reached. Hopefully, the Congress and the President will finally get their job done.”

In other words, the decision to rescind DACA was “dumb but legal.” Hardly the ringing endorsement that the Trumpsters claim. What this case actually did is to vindicate their right to make bad policy decisions. Ultimately, the remedy for that type of poor governance is at the ballot box.

Here’s the full decision in Casa de Maryland v. DHS so you can judge for yourself:

JudgeTitusDACAOp

PWS

03-06-18

SESSIONS “GOES DEEP” TO UNDERMINE DUE PROCESS! — Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018)!

Here is the AG decision:

E-F-H-L-AG

And here’s the original BIA precedent he vacated:

E-F-H-L-2014

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Sessions, on his own initiative, reaches back four years to vacate the BIA’s precedent decision Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014). That case held that an asylum or withholding applicant is entitled to a full hearing on his or her application. That hearing includes a chance to testify and present evidence to the Immigration Judge. The respondent is not required to present a “prima facie case” for an asylum grant to get a full hearing.

The “original” case had since been closed for I-130 adjudication, after the respondent withdrew his I-589 with prejudice. Sessions ordered that the case be restored to the Immigration Court’s “active” docket and set for a hearing.

Session’s decision was cryptic — without any explanation of why he chose this case and what he hoped to accomplish. However, a number of “preliminary theories” have surfaced, none of them good news for asylum seekers:

Sessions wants to do away with full hearings for asylum seekers and establish some type of “summary dismissal without hearing” process for those who fail to establish a “prima facie case” for asylum or withholding;
Sessions is using this case to attack administrative closing as a prelude to eliminating or severely restricting the Immigration Judges’ authority to administratively close cases in Matter of Castro-Tum;
Sessions wants to send a message to Immigration Judges that every administrative closing will be subject to potential review and reversal from “on high,” with potential “career limiting” consequences for the Judges, thereby discouraging administrative closing;
Sessions wishes to illustrate and eliminate the potential for lawyers to use “weak” asylum claims that they subsequently withdraw to manipulate the system to gain time to apply for other relief;
Sessions wants to establish that an Immigration Judge’s authority upon BIA remand is limited to the “four corners” of the BIA’s remand order and does not allow the respondent to seek or raise other remedies.
All five of the preceding.

PWS

03-06-18

BESS LEVIN – THE LEVIN REPORT – After A Year Of Being One Of Trump’s Chief Toadies To Fulfill Dream Of Big Tax Cuts For Fat Cats That Cripple The Government, Screw The Needy, & Blow Up The Deficit, “Spineless Paul” Ryan Panics When Trump Goes Bonkers On Tariffs!

Levin writes for Vanity Fair:

“For his entire adult life and, let’s be honest, probably a good portion of his teen years, Paul Ryan has fantasized about tax cuts the way some people fantasize about having sex with a porn star. Not just any old tax cuts, of course, but the kind that disproportionately benefit corporate America and the upper-echelons of the ultra rich, while handing average Americans an extra buck fifty a paycheck and expecting an outpouring of gratitude in return. We know this because 1) he’s openly and unabashedly obsessed with Ayn Rand, and 2) just a few short months ago, the House Speaker released a sizzle reel highlighting his many urgent calls for tax cuts spanning nearly 20 years in office. In Donald Trump, a man who has never demonstrated conviction in anything other than enriching himself and other people named Trump, Ryan saw an opportunity for his longtime dream to become a reality. That’s why, for more than a year now, Ryan has put up with everything from the president demanding loyalty from the head of the F.B.I. (“he’s new at this!”) to his decision to give Nazis a free pass (“he’s learning!”) to his refusal to release his tax returns, even though Wisconsin’s first son could compel to do so (“tee-hee!”). And in December, Ryan’s commitment to holding his nose and looking the other way paid off, big time.

This week, though, we learned that there are, in fact, limits to what Ryan will put up with, and they involve imperiling the legacy of his tax bill and upsetting his corporate sugar daddies. In the wake of the president’s decision to announce that he plans to effectively start a trade war, Ryan’s spokeswoman, AshLee Strong, said in a statement on Monday: “We are extremely worried about the consequences of a trade war and are urging the White House to not advance with this plan. The new tax-reform law has boosted the economy and we certainly don’t want to jeopardize those gains.” To be clear, most people outside of the G.O.P. already expect the long-term effects of the tax bill to be a deficit-busting mess. But with Trump’s call to slap steel and aluminum imports with 25% and 10% tariffs, more or less out of spite, the havoc wreaked on the economy could be even worse, with experts estimating 146,000 job losses, among other consequences. Presumably, Ryan was also inspired to find his voice on the issue—and to fire off at least one passive-aggressive tweet—on account of the fact that the Koch brothers, who donated half a million dollars to his fundraising committee after the bill passed, harshly condemned the tariffs. And as they teach lawmakers on their first day on Capitol Hill, one mustn’t upset one’s benefactors.

Trump, though, apparently could not care less about Ryan’s (or anyone else’s) concerns, telling reporters Monday “we’re not backing down” and that the tariffs are “100 percent” happening. The U.S., he said, has been “ripped off” by other countries for too long, and “we are going to take care of it.” Perhaps the one ray of hope in this otherwise terrifying situation? Because this whole thing was put together in such a half-assed, completely slipshod way, Trump’s advisers—the ones who support the tariffs—are already hedging their bets:

Peter Navarro, an adviser and the architect of many of Mr. Trump’s campaign-trade promises, confirmed on Sunday that the president would not exclude any country from the tariffs but said individual companies could apply for exemptions for certain products. . . . Navarro [also] left room for change in the timing of the tariffs, which the president said would be signed this week. “Toward the end of the week,” Mr. Navarro said in a separate appearance on CNN’s State of the Union, when asked when the tariffs would be announced. “At the latest, it would be the following week.”

Wilbur Ross, the secretary of commerce, also appeared to leave room for the president to change his mind. “Whatever his final decision is, is what will happen,” Mr. Ross said on NBC’s Meet the Press. “What he has said he has said. If he says something different, it’ll be something different.” “If he for some reason should change his mind, then it will change,” Mr. Ross added, noting that he had no reason to believe that the president would do so.

Or as a top Republican put it to Politico: “I’ve stopped worrying and reacting to the day-to-day because you get all stressed out about something, then you realize tomorrow morning by lunch that it’s never going to happen.”

Report: Trump’s personal lawyer couldn’t believe he wasn’t immediately reimbursed for $130,00 porn-star payment

It’s almost as though you can’t trust a guy who (allegedly!) had an affair with an adult film star named Stormy Daniels right after his wife gave birth to their son:

The lawyer, Michael Cohen, wired the money to a lawyer for former actress Stephanie Clifford, known professionally as Stormy Daniels, from an account at First Republic Bank. The money was received on Oct. 27, 2016, 12 days before the presidential election, another person familiar with the matter said…Mr. Cohen said he missed two deadlines earlier that month to make the $130,000 payment to Ms. Clifford because he couldn’t reach Mr. Trump in the hectic final days of the presidential campaign, the person said.

Ms. Clifford was owed the money in return for signing an agreement that bars her from discussing an alleged sexual encounter with Mr. Trump in 2006, people familiar with the matter said. After Mr. Trump’s victory, Mr. Cohen complained to friends that he had yet to be reimbursed for the payment to Ms. Clifford, the people said.

Honestly, finance departments should really provide expense-report templates for this kind of thing. (Asked for comment from the Wall Street Journal, Cohen responded: “Fake News.”)

You might want to sit down for this . . .

This might come as a shock, but there are whispers the Trump Organization is attempting to profit off the presidency:

In recent weeks, the Trump Organization has ordered the manufacture of new tee markers for golf courses that are emblazoned with the seal of the president of the United States. Under federal law, the seal’s use is permitted only for official government business. Misuse can be a crime.

Past administrations have policed usage vigilantly. In 2005 the Bush administration ordered the satirical news website The Onion to remove a replica of the seal. Grant M. Dixton, associate White House counsel, wrote in a letter to The Onion that the seal “is not to be used in connection with commercial ventures or products in any way that suggests presidential support or endorsement.”

Area man demands media leave the Trumps alone!

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Now is is a great time to re-read Andy Borowitz’s (all too true) satire on “Spineless Paul” that I reprinted on Courtside in December 2017:

https://www.newyorker.com/humor/borowitz-report/koch-brothers-and-nra-reach-timeshare-agreement-over-ownership-of-paul-ryan

“WASHINGTON (The Borowitz Report)—In a unique accord, the billionaire Koch brothers and the National Rifle Association have reached a timeshare agreement over the ownership of House Speaker Paul Ryan, representatives of both parties have confirmed.

Speaking on behalf of the Kochs, Charles Koch said that he contacted the N.R.A.’s executive director, Wayne LaPierre, with the timeshare proposal “so that we could all get the maximum enjoyment out of owning Paul.”

The arrangement is intended to minimize conflicts between the Kochs and the gun group that have arisen in the past when both co-owners have wanted to use Ryan at the same time, Koch said.

“I said to Wayne, ‘This is craziness,’ ” he said. “ ‘Let’s work something out where you get Paul half the year, and we’ll take him the other half.’ ”

Under the timeshare deal, the Kochs will have the exclusive use of Ryan during the months when tax cuts and environmental deregulation are put to a vote, while the N.R.A. will have him for the months when gun legislation is to be defeated.

Additionally, each co-owner is responsible for insuring that Ryan is well maintained and in good condition when the other’s period of using him commences.

Koch indicated that, if the timeshare agreement is a success, the two parties are likely to work out a similar deal for their longtime joint ownership of Senate Majority Leader Mitch McConnell.”

However, the deep corruption of the GOP and its leaders, from Trump on down, isn’t really something to laugh about. At some point, the “nickel and dime” income boost given to average Americans by the GOP’s totally bogus and unwarranted “tax cuts” for the rich will automatically expire (but, naturally, not for the rich) and the true bill for running up the deficit so the Koch Bros and others can get richer will come due. By that time, conveniently, Trump, Ryan, and hopefully McConnell will be out of office. But, the damage they are doing to our country will be left for others, likely the Democrats, to clean up. That’s what Kleptocracy is all about, folks. Steal what you can when you can and then get out of Dodge while the getting is good!

PWS

03-06-18

TED HESSON @ POLITICO: Court Rulings Might Not Keep Dreamers From Losing Work Authorization

https://www.politico.com/story/2018/03/05/dreamers-disruption-immigration-court-orders-385096?cid=apn

Ted Hesson writes at Politico:

“Thousands of undocumented immigrants brought to the U.S. as children could face disruptions in their ability to work, even though the Trump administration has for months been under a federal court order to renew protections under the Deferred Action for Childhood Arrivals program.

The problem arises chiefly from the Department of Homeland Security’s refusal to prioritize those DACA renewals due to expire soonest. Instead, the applications are being processed in the order in which they were filed. Consequently, many so-called Dreamers who’ve applied to renew will see their DACA protections expire before DHS acts, increasing their risk of being fired from their jobs or, possibly, being arrested and deported.

“You can’t just say, ‘Don’t show up to work and we’ll kind of keep paying you,’ or ‘wink wink, nod nod,’” said Todd Schulte, president of the pro-immigration FWD.us. “I just think we should assume that a ton of these people are going to lose their jobs.”

DHS did not respond to a request to clarify its enforcement policy for people with recently expired DACA grants.

U.S. Citizenship and Immigration Services estimates 13,090 people have grants that will expire in March. Of those, 4,470 had a renewal pending as of Jan. 31. USCIS, the division of DHS that administers DACA, makes an effort to process DACA renewals within 120 days, but it doesn’t always move that fast, according to Leon Rodriguez, director of USCIS from 2014 to 2017.

The need to process DACA renewals quickly was unforeseen last September, when President Donald Trump announced that he would sunset the Obama-era program. Trump halted DACA renewals in early October and set March 5 — Monday — as a deadline for Congress to take action to protect Dreamers. After that date, Dreamers would start losing DACA protections in large numbers.

But Congress didn’t act, at least partly because San Francisco-based U.S. District Court Judge William Alsup largely mooted the March 5 deadline in early January when he ordered DHS to resume DACA renewals. A Brooklyn-based federal judge issued a similar ruling in mid-February. The Trump administration urged the Supreme Court to intervene, but the high court declined, choosing instead to allow the matter proceed through the lower courts.

USCIS resumed DACA renewals in January, but that unplanned resumption has not proceeded smoothly. “When you have a lot of stopping and starting of activity,” said Rodriguez, “that poses some risk that something might be set up the wrong way and some group of people not be handled as expeditiously as they should,” he said.

“I think it is going to keep getting more chaotic,” Rodriguez said of the weeks ahead.

The agency’s refusal to pull out of the queue renewals that are due to expire soonest (as, for instance, airlines do at the check-in line for passengers whose planes will take off soonest) poses an enormous problem for those Dreamers who filed for renewal after Judge Alsup’s Jan. 9 order.

But another difficulty is that not many Dreamers took advantage of the court ruling, possibly because uncertainty over whether Alsup’s order would be overruled by the Supreme Court left them reluctant to pay the $495 renewal fee. The Supreme Court didn’t announce that it would let Alsup’s order stand until Feb. 26.

. . . .

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Please go on over to Politico at the above link to read Ted’s complete analysis.

I suspect that there might be more legal challenges in the offing, from both the Dreamers and their employers. To date, the Government has pretty much “lost ’em all” when it comes to DACA, a trend that I see continuing at least in the lower Federal Courts where the litigation is likely to be confined for the foreseeable future.

In my view, the Administration’s unwise, callous, and legally questionable treatment of Dreamers to date is providing advocates for Dreamers with some “golden opportunities” to make some “good law” in the Dreamers’ behalf that hopefully can carry over into blocking some of the Administration’s other anti-immigrant initiatives. A good chance for the New Due Process Army to capture some valuable territory in the fight for truth, justice, Due Process, and the American way!

PWS

03-06-18

TAL SAYS THE DREAM SEEMS TO HAVE PASSED – “Dreamers” Are Waking Up To The Reality That They Are Back In “Limboland” With No End In Sight!

http://www.cnn.com/2018/03/05/politics/daca-deadline-march-5-passing-immigration-courts/index.html

DACA’s March 5 ‘deadline’ marks only inaction

By Tal Kopan, CNN

It’s been six months since President Donald Trump moved to end a program that protected young undocumented immigrants from deportation, and Washington seems to be no closer to a resolution on the day everything was supposed to be solved by.

March 5 was originally conceived to be a deadline of sorts for action. When Trump ended the Deferred Action for Childhood Arrivals program in September, he created a six-month delay to give Congress time to come up with a legislative version of the policy, which protected young undocumented immigrants who had come to the US as children.

The Department of Homeland Security was going to renew two-year DACA permits that expired before March 5, and Monday was to be the day after which those permits began expiring for good.

But multiple federal judges ruled that the justification the Trump administration was using to terminate the program was shaky at best — and ordered DHS to resume renewing all existing DACA permits. And the Supreme Court declined the administration’s unusual request to leapfrog the appellate courts and consider immediately whether to overrule those decisions.

That court intervention effectively rendered the March 5 deadline meaningless — and, paired with a dramatic failure on the Senate floor to pass a legislative fix, the wind has been mostly taken out of the sails of any potential compromise.

Activists are still marking Monday with demonstrations and advocacy campaigns. Hundreds of DACA supporters were expected to descend on Washington to push for action.

But the calls for a fix stand in contrast with the lack of momentum for any progress in Washington, with little likelihood of that changing in the near future. Congress has a few options lingering on the back burner, but none are showing signs of imminent movement.

March 23 is the next government funding deadline, and some lawmakers have suggested they may try to use the must-pass package of funding bills as a point of leverage.

But sources close to the process say it’s more likely that efforts will be made to keep a bad deal out of the omnibus spending measure than to come up with a compromise to attach to it, as no solution has a clear path to passing either chamber and the House Republican leadership has opposed attaching any immigration matter to a spending deal.

“I have a feeling that anything that goes with the omnibus is going to be a punt, so I’m not excited about that. That’s not my goal,” Rep. Carlos Curbelo, a Florida Republican who has been one of the loudest voices pushing for a DACA fix on the GOP side, told reporters last week.

In the Senate, Jeff Flake, an Arizona Republican, and Heidi Heitkamp, a North Dakota Democrat, have introduced a bill that would give three-year extension to the DACA program along with three years of border security funding, though that legislation has yet to pick up any momentum and many lawmakers remain hesitant to give up on a more permanent fix. The Senate is also still feeling the residual effect of the failure of a bipartisan group to get 60 votes for a negotiated compromise bill, which suffered from a relentless opposition campaign from the administration. Trump’s preferred bill failed to get even 40 votes, far fewer than the bipartisan group’s.

On the House side of the Capitol, a more conservative bill than even Trump’s proposal has been taking up the focus. The legislation from Judiciary Chairman Bob Goodlatte, a Virginia Republican, and others contains a number of hardline positions and no pathway to citizenship for DACA recipients, and it fails to have enough Republican votes even to pass the House. It is considered dead on arrival in the Senate.

But conservatives in the House, buoyed by the President’s vocal support for the bill, have gotten leadership’s commitment to whip the measure, and leadership has been complying for now. According to lawmakers and sources familiar, House Speaker Paul Ryan, a Wisconsin Republican, talked about the bill in a GOP conference meeting during the House’s short workweek last week, and continued to discuss ways to get enough votes.

Lawmakers estimate that at this point, the measure had somewhere between 150 and 170 votes in its favor, far fewer than the 218 it would need. But the bill’s authors are working with leadership to see whether it can be changed enough to lock up more, even as moderates and Democrats remain skeptical it can get there.

“The vote count is looking better every day,” said Rep. Jim Jordan, a conservative Ohio Republican who has been a vocal advocate for the bill. “I think if leadership puts the full weight of leadership behind it, we can get there. … The most recent report I’ve heard is whip count is getting better.”

Moderate Republicans, however, are holding out hope that the party can move on from that bill and seek something that could survive the Senate and become law.

“Bring up the Goodlatte bill that went through Judiciary. If it does not have 218 votes, then let’s go to the next one that makes sense for DACA,” said Rep. Jeff Denham, a California Republican who has supported a compromise on DACA.

In the meantime, most think DACA recipients will continue in limbo, especially with the courts ensuring that renewals can continue for now.

“It’s good news for people in the DACA program, because they can continue renewing their permits. I have mixed feelings on what it means for us here, because we know this institution sometimes only works as deadlines approach, and now there isn’t a deadline,” Curbelo said.

(Published Sunday)

http://www.cnn.com/2018/03/04/politics/daca-advocacy-push-aclu-trump-immigration/index.html

Advocates target Trump in DACA push ahead of March 5

By: Tal Kopan, CNN

Immigration advocates are unveiling a fresh advocacy campaign on the Deferred Action for Childhood Arrivals program aimed directly at President Donald Trump — even as a March 5 deadline has been rendered toothless and Congress is retreating from action.

The American Civil Liberties Union is launching a six-figure campaign Sunday to keep the issue up front, using digital and TV advertising as well as local protests and targeted messaging.

The campaign is designed to get the President’s attention, using a mix of digital geo-targeting and physical presence.

The ACLU’s national political director, Faiz Shakir, described the theory behind the effort as getting the issue in front of Trump and sending the message that he uniquely can reach a solution if he commits to it.

“I think the one important thing that I feel like we all appreciated and learned about Donald Trump is that he is a person who reacts to headlines. He’s a person who reacts to PR, publicity and attention, and if you’re not in his face on headlines and press, then essentially you’re kind of outside of his scope,” Shakir said in an interview. “Whatever we can do to try to make it a front-and-center, in-front-of-his-face issue, that’s what we’re going to try to do.”

As of Sunday, the ACLU campaign will be on TV screens, in DC cabs, local political newspapers and other outlets, and streaming apps.

The civil liberties group also plans to buy ads on “Fox and Friends,” a show the President regularly watches, and Twitter ads designed to help supporters tweet directly at Trump and get into his Twitter feed, another presidential favorite.

The 30-second ad intersperses clips of Trump saying how much he supports DACA and its recipients with direct calls to action, saying in text directed at the President: “You killed DACA. … Fix what you broke before it’s too late.”

The group will also debut a banner with Trump’s face and a countdown clock to March 5 in front of the White House on Sunday, as well as work to have demonstrators in California when Trump travels to San Diego, perhaps later this month, to see his border wall prototypes.

The campaign demonstrates the long odds of achieving action on DACA in Washington, as well as the loss of meaning for the March 5 deadline. When Trump opted to terminate the program, which protects from deportation young undocumented immigrants who came to the US as children, he planned for the permits to begin expiring after March 5, giving Congress six months to act to make the program permanent.

But court decisions have required the administration to resume renewing the two-year DACA permits indefinitely, and after a failed attempt in the Senate to pass bipartisan legislation over objections from Trump, Congress has retreated from the issue with the deadline no longer offering urgency.

Shakir said the ACLU plans to continue the push in the coming weeks and into November’s elections, urging action however it can send the message.

“We’re trying to find a way to be positive and optimistic to keep the enthusiasm going,” Shakir said. “The court injunctions are helpful in that … we have some hopes that we’ll be able to have months of reprieve, but we don’t know how many months.”

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

I think it’s going to take “regime change.” And, “regime change” takes time and great effort. And, the outcome is always far from certain.

PWS

03-05-18

E.J. DIONNE, JR. @ WASHPOST — TRUMP/GOP ATTACK ON PUBLIC SERVICE COULD CRIPPLE US FOR GENERATIONS! — JFK Challenged The “Best & The Brightest” To Ask “What You Can Do For Your Country!” — Trump Surrounds Himself With Kleptocrat Grifters Trying To Loot, Destroy, & Misuse Power To Enrich Selves & Cronies While Punishing “Enemies” (The Rest Of Us)!

https://www.washingtonpost.com/opinions/were-witnessing-a-war-on-public-life-this-is-the-cost/2018/03/04/ddc94790-1e5f-11e8-9de1-147dd2df3829_story.html

“We didn’t fully realize just how hard it is to be president until we had one with no idea of what it takes to do the job.

We didn’t appreciate having a government that was relatively honest and free of venality until we had one riddled with corruption.

And we didn’t know how wildly irresponsible Republican criticisms of Barack Obama and Hillary Clinton were until the GOP fell silent in the face of abuse after abuse from President Trump. Obama was “not presidential” for wearing a tan suit? Benghazi? Really? Let’s start there. When the current administration finally reaches the end of the line, we will need some serious rethinking about how to grapple with the asymmetry in the behavior of our two parties. Republicans — and particularly the party’s dominant right wing in the House of Representatives — have kicked away a lot of credibility in a very short time.

Reports that Republicans on the House Intelligence Committee leaked private text messages between Sen. Mark R. Warner (D-Va.) and a Russia-connected lawyer to Fox News offered a prime example of their partisanship-above-everything attitude. Let’s not have amnesia a few months or a few years from now about how political warfare took priority over the nation’s security or how double standards became the rule for a large part of the GOP. To their credit, Warner’s Republican colleagues on the Senate Intelligence Committee were outraged over the behavior of their House counterparts whose primary interest is in protecting Trump and disrupting any serious investigation of Russian collusion. Warner had disclosed the contact to his colleagues months before, and Sen. Marco Rubio (R-Fla.) had said it had “zero impact on our work.”

Both Warner and Senate Intelligence Chairman Richard Burr (R-N.C.) complained to House Speaker Paul D. Ryan (R-Wis.) about the irresponsibility of their House counterparts, led by Rep. Devin Nunes (R-Calif). Ryan said he did not run the committee, thus pushing away an obligation to act. Imagine that: A House speaker who uses all of his prerogatives to push through his own priorities claims utter powerlessness in the face of a runaway committee chairman.

Good for Burr and Rubio, and may more Republicans stand against the madness.

The larger lesson from this shameful interlude is about what self-government demands. Aspects of governing we regard as boring and pay little attention to are important to making it function well.

For the past week or so, an avalanche of commentary about the chaos of the Trump regime has pointed to how key appointees are rushing toward the exits; how Trump springs new policies with little preparation and changes his views news cycle to news cycle; how ill-prepared Trump and many of his aides were for the rigors of the White House; and how recklessly they cast aside norms and rules aimed at preventing conflicts of interest and sleaze.

How did we get a government of this sort? For decades, our country has been witness to a war on public life. Legitimate dissatisfaction with government has turned into contempt for government itself and a denial of the indispensability of politics.

We value expertise from our doctors, nurses, engineers and scientists. But when it comes to government, there is a popular assumption that those who spend their lives mastering the arts of administration, politics and policymaking must be up to no good. This inclination, by the way, is prevalent in other democracies, too.

It is an attitude that leads voters to mistake inexperience for purity and outsider status (often, as in Trump’s case, a feigned outsiderism) for an exceptional understanding of the people’s wishes.

It has turned the word “politician” into an epithet, even though most of our best presidents (Abraham Lincoln and Franklin D. Roosevelt especially) have been politicians through and through. The cliched and supposedly high-minded distinction between “a politician” and “a statesman” was always wrong. It’s coming back to haunt us.

And viewing our civil servants as mere timeserving “bureaucrats” fails to appreciate the contributions they make and the extent to which our government, in comparison with so many others, has been remarkably light on corruption.

The danger is that we will suffer all the costs the Trump era imposes without learning any of the lessons it teaches.

Yes, democracy can be frustrating. Our leaders have made big mistakes. Power and wealth are concentrated into too few hands. But repairing our problems requires citizens willing to engage in public life, not shun it, and people in government who respect the work they are asked to undertake.”

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

Yeah, Trump & Co. have “poisoned the well” for public service. His approach is pretty much that of the Third World strongmen and dictators that those of us who heard asylum cases for decades listened to every day.

Weasel your way into office with lies; appoint your family and friends to high positions; loot the country while aimlessly building up the military, more to keep domestic enemies in line than to combat any realistic international threat; ignore international institutions and treaties; compromise elections; denigrate opposition; focus on your own personality to the exclusion of the common good; and work every day to redistribute wealth upward to the narrow ruling class to perpetuate your own power. Trump apparently aspires to be the “American Robert Mugabe.”

PWS

03-05-18

WASHPOST: ANOTHER DAY, ANOTHER ACT OF WANTON CRUELTY BY NIELSEN’S DHS — “Gratuitous malice toward children is not a characteristic one generally associates with the United States, but under Ms. Nielsen’s guidance, the Department of Homeland Security seems intent on changing that.”

https://www.washingtonpost.com/opinions/gratuitous-cruelty-by-homeland-security-separating-a-7-year-old-from-her-mother/2018/03/04/98fae4f0-1bff-11e8-ae5a-16e60e4605f3_story.html

Gratuitous cruelty by Homeland Security: Separating a 7-year-old from her mother

Homeland Security Secretary Kirstjen Nielsen in the White House on March 1. (Mandel Ngan/AFP/Getty Images)
By Editorial Board March 4 at 7:11 PM
WHAT, EXACTLY, did a 7-year-old Congolese girl do to the United States to deserve the trauma that has been visited upon her — including forcible separation from her mother — by Homeland Security Secretary Kirstjen Nielsen and her immigration agents?

There is no allegation that the little girl, known in court filings only as S.S., is a terrorist, nor is there any suggestion her mother is one. Neither was involved with smuggling, nor contraband, nor lawbreaking of any other variety. Rather, S.S.’s 39-year-old mother presented herself and her daughter to U.S. officials when they crossed the border from Mexico four months ago, explaining they had fled extreme violence in Congo, and requesting asylum.

A U.S. asylum officer interviewed Ms. L, as the mother is called in a lawsuit filed on her behalf by the American Civil Liberties Union, determined that she had a credible fear of harm if she were returned to Congo and stood a decent chance of ultimately being granted asylum. Despite that preliminary finding, officials decided that the right thing to do was to wrench S.S. from her mother, whereupon the mother “could hear her daughter in the next room frantically screaming that she wanted to remain with her mother,” the lawsuit states.

The Trump administration has said that it is considering separating parents from their children as a means of deterring other families, most of them Central American, from undertaking the perilous trip necessary to reach the United States and seek asylum. Now, without any formal announcement, that cruel practice, ruled out by previous administrations, has become increasingly common, immigrant advocacy groups say. In the nine months preceding February, government agents separated children from their parents 53 times, according to data compiled by the Lutheran Immigration and Refugee Service.

Make no mistake: Ms. L and S.S. could have been placed together in a family detention center. There has been no explanation of why the determination was made to separate them; nor is there any allegation that Ms. L. is an unfit parent. The only principle at work, if it can be called that, is the idea that future asylum seekers might be deterred if they are convinced that the United States is actually a crueler and more heartless place than their native country.

Gratuitous malice toward children is not a characteristic one generally associates with the United States, but under Ms. Nielsen’s guidance, the Department of Homeland Security seems intent on changing that. A Homeland Security spokesman would not comment on this case but said that the department does not “currently” have a policy regarding separating asylum-seeking parents and children who are detained.

Separating children from their parents while they await adjudication of asylum claims is of a piece with arresting and deporting upstanding, otherwise law-abiding unauthorized immigrants who have lived and worked for decades in the United States and are the parents of U.S.-born children. That practice, too, carried out by Homeland Security deportation agents, has become far more common under the Trump administration.

Since being torn away in early November, S.S., who is being held at a facility in Chicago, has been permitted to speak with her mother, who is in a detention center in San Diego, just half a dozen times by phone. The girl, who turned 7 in December, routinely cries on the phone, according to the ACLU lawsuit. Is this the kind of protection Americans want from their Department of Homeland Security?

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

It’s almost (but not quite) unfair to blame Nielsen for this garbage. After all, she was selected for the DHS position precisely because she is a gutless intellectual lightweight who will just do the foul bidding of Trump, Sessions, Kelly, and Miller no questions asked and no resistance tolerated. That’s what “government by sycophants” is all about.

In the meantime, the New Due Process Army and the rest of us who still believe in our Constitution and humane values have to redouble our resistance to the evil of the Trumpsters and their allies. In the end, it’s a fight for the heart and soul of America as nation!

PWS

03-05-18

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