BIA “JUST SAYS NO” TO “ONCE A UAC, ALWAYS A UAC” — Matter of M-A-C-O-, 27 I&N Dec. 477 (BIA 2018)

https://go.usa.gov/xPNUE

Matter of M-A-C-O-, 27 I&N Dec. 477 (BIA 2018)

BIA HEADNOTE:

An Immigration Judge has initial jurisdiction over an asylum application filed by a respondent who was previously determined to be an unaccompanied alien child but who turned 18 before filing the application.

PANEL:  BIA APPELLATE IMMIGRATION JUDGES COLE & WENDTLAND; JUDGE CROSSETT, TEMPORARY BIA APPELLATE IMMIGRATION JUDGE

OPINION BY:  JUDGE CROSSETT

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When I was a sitting Judge at the Arlington Immigration Court: 1) I generally accepted the DHS designation of who was a UAC; and 2) I followed the general maxim that “once a UAC, always a UAC.” Guess I was wrong on both counts. Interestingly, I don’t remember any real disputes between the ICE Assistant Chief Counsel and the private bar on these points. I guess times have changed (or my recollection has faded).

PWS

10-16-18

 

THE HILL: Read Nolan On Sessions’s Latest Bid To Expand Mandatory Indefinite Detention For Asylum Seekers, Even Those Who Have Passed Credible Fear!

https://thehill.com/opinion/immigration/411156-will-sessions-use-indefinite-mandatory-detention-to-reduce-the-demand-for

Family Pictures

Nolan writes in The Hill:

. . . .

But the prospect is now on the horizon of asylum seekers remaining in detention regardless of being able to establish a credible fear of persecution.

Attorney General Jeff Sessions is now reviewing that BIA decision to determine whether it should be overruled in light of the Supreme Court’s ruling in Jennings v. Rodriguez.

The Ninth Circuit had held that an alien who establishes a credible fear of persecution cannot be held indefinitely under the expedited removal provisions of the Immigration and Nationality Act without bond hearings every six months at which the government has the burden of showing that further detention is necessary.

But in Jennings v. Rodriguez, the Supreme Court rejected that.

The pertinent provision states when it’s been determined that a person has a credible fear of persecution, he “shall be detained for further consideration of the application for asylum,” and the Supreme Court held that this language “mandate(s) detention of aliens throughout the completion of applicable proceedings and not just until those proceedings begin.”

In other words, mandatory detention continues to apply until they have been granted asylum, deported, or – and this is key – they choose voluntarily to leave on their own.

If aliens placed in expedited removal proceedings have to be detained until they can be deported or are granted asylum, most of them will go home rather than stay at a detention center on a military base for several years with no realistic hope of being granted asylum.

According to Adam Cox, a leading expert on immigration and constitutional law, Justice Department lawyers under both Democratic and Republican administrations have argued that undocumented aliens apprehended at the border lack due process protections, and the Supreme Court has never clearly resolved the dispute.

There was an uproar – and some backtracking – over detaining children for even relatively short periods.  How will the American public react to people – men, women, and children – being put in mandatory detention that can last for months or even years?

. . . .

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Go on over to The Hill at the above link to see Nolan’s complete article.

It’s likely that “Our Gang” of retired Immigration Judges will be weighing in on this issue in the near future. So, stay tuned for further developments.

PWS

10-16-18

 

THE GIBSON REPORT – 10-15-18 – Compiled By Elizabeth Gibson, Esq., NY Legal Assistance Group

TOP UPDATES

 

Argument analysis: Are there limits to the government’s power to detain immigrants without a hearing?

SCOTUSblog: On Wednesday, the Supreme Court heard oral argument in the case of Nielsen v. Preap… Although retired Justice Anthony Kennedy voted against the government in Pereira and might therefore have been expected to do the same here, his replacement by Kavanaugh may not determine the outcome in this case. Both Chief Justice John Roberts and Justice Neil Gorsuch also came down on the side of the immigrant in Pereira. It is not yet clear where those two justices stand on this case.

 

‘Trump … blinked, Seattle won,’ Durkan says as police get federal funds despite ‘sanctuary city’ threats

Seattle Times: The Trump administration, after threatening to withhold funds for Seattle in retaliation for the city’s immigration policies, has agreed to hand over the money, according to Mayor Jenny Durkan and City Attorney Pete Holmes. Seattle and nearby jurisdictions have been approved for $657,975 in Justice Assistance Grant funds, the U.S. Department of Justice said in an Oct. 10 letter to the city.

 

I’m Terrified About The Future of Home Health Care Aides – You Should Be Too

ImmProf: One-in-four of all home health aides nationwide are immigrants, according to Forbes. But the new “public charge” regs may affect the ability of noncitizen aides to continue in this line of work. Why? Because the pay is so low for this type of care, many aides rely on public supports like food stamps and Medicare.

 

Trump says he is considering a new family separation policy at U.S.-Mexico border

WaPo: Trump said the soaring number of illegal border crossings is “a terrible situation” and argued that family separations likely would help scare away some undocumented migrants from trying to enter the United States.

 

Immigrant Teens Are Stuck In An Expanding Tent City In Texas

BuzzFeed: It opened in June, and the contractor running the site had a 30-day contract. At that time, 326 children were being housed there. But four months after its opening, the shelter 30 miles outside of El Paso has grown into a bustling town. It now holds nearly five times its initial population — roughly 1,500 teens — and its contract has been extended until at least Dec. 31.

 

The US Is Checking Immigrant Kids’ Teeth To See If They Actually Belong In Adult Detention

VICE: Young immigrants, though, don’t always come with birth certificates or other documentation of their age. When that’s the case, ORR contractors and ICE sometimes turn to a highly disputed science to determine how old the immigrants are: forensic odontology.

 

Profiling Who ICE Detains – Few Committed Any Crime

TRAC: The vast majority (58%) of individuals in ICE custody June 30 had no criminal record. An even larger proportion—four out of five—either had no record, or had only committed a minor offense such as a traffic violation

 

New American Fortune 500 in 2018: The Entrepreneurial Legacy of Immigrants and Their Children

NAE: We find 44 percent—or 219 companies—in the Fortune 500 were founded by immigrants or their children. A full 100, or one out of every five, were founded by foreign-born individuals while another 119 were founded by the children of immigrants.

 

Army expelled 500 immigrant recruits in 1 year

AP: Over the course of 12 months, the U.S. Army discharged more than 500 immigrant enlistees who were recruited across the globe for their language or medical skills and promised a fast track to citizenship in exchange for their service, The Associated Press has found.

 

G.O.P. Finds an Unexpectedly Potent Line of Attack: Immigration

NYT: “Sanctuary attacks pack a punch,” says a four-page memorandum, prepared by the liberal Center for American Progress and the centrist think tank Third Way, that has been shared at about a dozen briefings for Democrats in recent weeks. The New York Times obtained a copy of the memo, whose findings are based on interviews and surveys conducted over the summer.

 

Challenging the Constitutionality (or Legality) of Stipulated Removal Orders Issued Between 1997 and 2012 in Reinstatement and 8 U.S.C. §1326 Cases

Sharma-Crawford: [S]tarting at least as early as 1997, as part of a mass scheme to remove individuals from the United States quickly and without due process protections, the federal government duped and coerced individuals into waiving their rights and agreeing to accept stipulated removal orders…In one particular jurisdiction – Kansas City, Missouri – immigration officials, with the assistance of one nonprofit attorney from Legal Aid, engaged in a scheme to help DHS obtain thousands of removal orders with “no advocacy…[and]…no opposition to the government’s action to deport these individuals.”

LITIGATION/CASELAW/RULES/MEMOS

 

Class Notice and Proposed Settlement Agreement Regarding Immigration Procedures for Families Separated at the Border

Attached are copies of the class notice and proposed agreement to settle several lawsuits concerning the appropriate immigration procedures for migrant families separated after entering the United States: M.M.M. v. Sessions, Case No. 3:18-cv-1832-DMS (S.D. Cal.), M.M.M. v. Sessions, Case No. 1:18-cv-1835-PLF (D.D.C.), Ms. L. v. ICE, Case No. 3:18-cv-428-DMS (S.D. Cal.), and Dora v. Sessions, Case No. 18-cv-1938 (D.D.C.).  Judge Dana Sabraw of the Southern District of California preliminarily approved the proposed settlement agreement on October 9, 2018.  The agreement covers a class of parents and a class of children, as described more fully attached.

 

USCIS Notice of Proposed Rulemaking on Public Charge Ground of Inadmissibility

USCIS notice of proposed rulemaking to revise the regulations on the public charge ground of inadmissibility to define the term “public charge” and define the types of benefits that are considered in public charge inadmissibility determinations. Comments are due 12/10/18. (83 FR 51114, 10/10/18) AILA Doc. No. 18092430

 

BIA Holds That New York Statute Is Not a Controlled Substance Offense or Aggravated Felony

Unpublished BIA decision holds that criminal sale of a controlled substance in the fifth degree under N.Y.P.L 220.31 is not a controlled substance offense or aggravated felony under Harbin v. Sessions, 860 F.3d 58 (2d Cir. 2017). Special thanks to IRAC. (Matter of Diaz Vargas, 9/29/17)

AILA Doc. No. 18101200

 

BIA Reopens and Terminates Multiple Sets of Removal Proceedings

Unpublished BIA decision reopens and terminates two sets of proceedings sua sponte upon finding that carrying a weapon in a motor vehicle under Conn. Gen. Stat. 29-38 was neither a firearms offense nor an aggravated felony. Special thanks to IRAC. (Matter of Thorpe, 9/29/17) AILA Doc. No. 18101038

 

BIA Finds Respondent Did Not Breach Bond Conditions

Unpublished BIA decision holds that respondent did not breach bond conditions by moving out of state where note in IJ decision indicated that he had to remain at the address where he intended to move after his release. Special thanks to IRAC. (Matter of S-S-, 9/15/17) AILA Doc. No. 18101040

 

BIA Rescinds In Absentia Order Because NTA Was Sent to Non-Attorney

Unpublished BIA decision rescinds in absentia order because Notice to Appear was sent to an immigration consultant provided on a prior TPS application. Special thanks to IRAC. (Matter of Ascencio Martinez, 9/20/17) AILA Doc. No. 18101134

 

The Attorney General has issued a decision in Matter of M-G-G-, 27 I&N Dec. 475  (A.G. 2018).

AG: The named respondent in the case has been removed to Guatemala pursuant to a final order of removal. Given that the respondent is no longer in the United States, I will not review the Board’s determination that the respondent was eligible to be released on bond.

 

The Attorney Decision has issued a decision in Matter of M-S-, 27 I&N Dec. 476  (A.G. 2018).

AG:  I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision…Whether Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), which held that immigration judges may hold bond hearings for certain aliens screened from expedited removal proceedings under section 235(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(1), into removal proceedings under section 240, 8 U.S.C. § 1229a, should be overruled in light of Jennings v. Rodriguez, 138 S. Ct. 830 (2018).

 

DHS Issues Waiver to Expedite Border Wall Gate Construction Project in Texas

DHS issued a waiver with the stated purpose of ensuring “the expeditious construction of gates in existing wall structure near the international border in the state of Texas.” The waiver was published in the Federal Register on 10/10/18. AILA Doc. No. 18101170

 

ICE Provides Information on Its Basic Immigration Enforcement Training Program

ICE provided information on its training program for deportation officers, stating that its 16 weeks long and includes background on removal proceedings and a 25-day Spanish language course. Graduation is mandatory before prospective deportation officers can enforce immigration laws. AILA Doc. No. 18101171

 

USCIS Issues Policy Alert on Marriage and Living in Marital Union Requirements for Naturalization

USCIS is updating policy guidance in the USCIS Policy Manual to clarify the married and living in marital union requirements for naturalization under INA §319(a). Updated guidance is effective immediately and comments are due by 10/25/18. AILA Doc. No. 18101230

 

 

RESOURCES

EVENTS

 

ImmProf

 

Monday, October 15, 2018

Sunday, October 14, 2018

Saturday, October 13, 2018

Friday, October 12, 2018

Thursday, October 11, 2018

Wednesday, October 10, 2018

Tuesday, October 9, 2018

Monday, October 8, 2018

 

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Thanks, Elizabeth!

 

PWS

10-16-18

POPULATION OF TENT CITIES IN TRUMP’S “KIDDIE GULAG” HAS INCREASED 5X – The Solution, According To Trump, Sessions, Nielsen, & Miller: Detain Even More Children & Families For Longer Periods Of Time!

https://www.buzzfeednews.com/article/amberjamieson/tornillo-tent-city?utm_term=.oolylVZRJr#.oolylVZRJr

Amber Jamieson reports for BuzzFeed News:

TORNILLO, Texas — Having immigrant teens live in the “tent city” in Tornillo, Texas, was always supposed to be a temporary solution, after the Trump administration’s policy of separating immigrant families at the border meant the government didn’t have enough beds in the shelter system.

It opened in June, and the contractor running the site had a 30-day contract. At that time, 326 children were being housed there.

But four months after its opening, the shelter 30 miles outside of El Paso has grown into a bustling town. It now holds nearly five times its initial population — roughly 1,500 teens — and its contract has been extended until at least Dec. 31.

The tent city’s purpose has changed as well. Officials at the Department of Health and Human Services, the federal agency responsible for the care of unaccompanied child immigrants, say none of the teens currently housed there were detained as a result of family separations. It now holds immigrant children who crossed the border without an adult, in theory as a last stage of their stay in the vast US shelter bureaucracy.

And as the shelter expands, administrative issues have cropped up concerning legal representation and FBI background checks — extending many teens’ stays longer than what HHS says is the average.

Tornillo now has a new football field, math and English classes, and more than 100 tent structures. Staffers zipped around in carts between dozens of portable offices offering mental health services, emergency medical care, legal services, and even a barber. A huge emergency tent has been turned into a sleeping hall for 300 teenage girls, decorated with paper chains and lanterns.

BuzzFeed News toured the Tornillo facility for the second time on Friday, as part of a group of reporters. Like the first and only other tour, instructions were strict. No photographs or recording devices were allowed, and reporters were not permitted to use the names of employees or speak with the teens living at the camp — though HHS was more lenient on the last rule during Friday’s tour. The only photos were provided by the government.

The facility in Tornillo, Texas.

HHS

The facility in Tornillo, Texas.

“I frankly thought we were done here in July,” the facility’s incident commander, who works for the contractor BCFS, told reporters Friday. He spoke from a new command center that is nearly triple the size of the office he occupied in June.

Back then, the same incident commander, who is in charge of running the shelter, called the Trump administration’s family separation policy — which created the need for Tornillo — “an incredibly dumb, stupid decision.” With the rollback of that policy, he said he expected the camp to shut soon afterward.

“I’m still here, ’cause otherwise, where are these kids going?” the commander said.

Only children between ages 13 and 17 stay at the Tornillo facility, which is now the largest in the HHS’s nationwide system. Pregnant teens, and teens requiring behavioral medication, are not allowed — “we’re too big, too high-profile,” the incident commander explained.

Officials said the average length of time that teens spend at Tornillo is 25 days. Yet many of the teens living at the camp have spent weeks or even months in HHS shelters before arriving at Tornillo. In order to clear out those other facilities, teens are sent to the tent shelter to await final processing before they are released to a sponsor in the US.

“This is a last stop, if you will,” said Mark Weber, a spokesperson for HHS.

Ten teens in Tornillo BuzzFeed News encountered had spent between three to five months in government detention — significantly more than the 59 days that HHS says is the average stay for an unaccompanied immigrant minor in its care. That average is up from 48 days in 2017, and around 30 days during the Obama administration.

Christopher Smith / HHS Photo Christopher Smith

And even after arriving in Tornillo, the young occupants find themselves facing a fresh final set of administrative hurdles that threaten to complicate or delay their stay in the US shelter system.

One of the teens BuzzFeed News spoke with last week, a 16-year-old girl from Guatemala, told reporters that she’d been in Tornillo exactly one month on Saturday. Before being transferred to Texas, she had spent four months in an HHS shelter in Miami, meaning she’d already spent five months in HHS care. She was uncertain how much longer she’d remain there.

Her brother, who lives in Texas and had been in the US for a decade, is trying to sponsor her, which should secure her release. But he is undocumented, and he told her that her caseworker is not sure if he will be able to act as a sponsor.

She didn’t want to go back to Guatemala, where her parents are. “I suffered a lot in the journey [to the United States], and what, for nothing?” she said.

Another teenage girl standing next to her told reporters she’d also come to Tornillo from the Miami shelter at the same time, and that she’d crossed the border four months earlier.

The delays stem in part from a new requirement — that the FBI perform a fingerprint background check — imposed by the Trump administration on family members and other adults who wish to sponsor an unaccompanied immigrant minor.

Those changes are delaying how long kids are staying in care, and have created the ongoing need for Tornillo to operate as a temporary shelter to handle the overflow from permanent HHS shelters, said the incident commander. He added that more than half of the children at the Tornillo shelter are there because of FBI delays.

Christopher Smith / HHS Photo Christopher Smith

“It is the extra precaution that HHS has put in place for sponsors,” said the incident commander on Friday. “That is absolutely what has caused this, without any question whatsoever.”

While he applauded the extra care HHS has taken to ensure the safety of unaccompanied minors, the incident commander criticized the length of time the FBI takes to do fingerprint checks. On Friday, 826 of the kids in Tornillo were still awaiting the results of fingerprint checks, the final step needed before they are released, he said.

“I think it should be done quickly,” the incident commander said. “I don’t understand why it’s taking so long. It seems like a system issue. … That is frustrating to me.”

He noted that it takes time to do background checks, but said that HHS is “working through the process [with the FBI] and working to speed it up.” He did not provide further details.

Asked if the teens who end up in Tornillo spend longer than the average stay in the shelter system, Weber replied: “I don’t think that’s [true]. … These kids are very close to being released.”

Weber also argued that the need for the Tornillo facility is “driven by the number of kids crossing the border” — which this year, he said, is set to be the third highest on record. Around 50,000 unaccompanied minors are expected to cross the border this year.

Christopher Smith / HHS Photo Christopher Smith

On Thursday, BuzzFeed News visited the juvenile immigration proceedings in downtown El Paso. Eleven teenage boys from the Tornillo facility, aged between 15 and 17, had been given notice to appear in court on that day.

The boys were dressed in new, matching navy and white polo shirts, denim jeans or khakis, and black, braided leather belts. They had fresh haircuts.

The judge asked the boys if they had copies of their Notices to Appear, a charging document issued by US Immigration and Customs Enforcement informing them of removal proceedings, and read the date on which each NTA had been issued. Dates ranged from June 6 until July 1, meaning the teenagers had been in HHS care for a minimum of over three months — longer than the average stay.

None of the boys had legal representation at the court hearing — they were just accompanied to court by a BCFS employee. All of them asked the judge to delay their cases so they could find an immigration lawyer. They were given until late January to do so.

The HHS spokesperson said it’s just not his agency’s job. “Yes, children are appearing in court, but that is not part of HHS’s responsibility,” Weber told reporters on Friday. “Those legal options are pursued basically after they are released from us.”

Juveniles facing immigration proceedings do not have the right to a government-appointed lawyer. Weber said the children who appeared in court would absolutely have received legal help beforehand.

Everyone in HHS care receives a “Know Your Rights” training, Weber said, and upon arrival to Tornillo, the teenagers are again reminded that they are able to speak with a lawyer. Ten legal representatives — a combination of lawyers and social workers from different legal organizations — are on hand on weekdays in Tornillo to meet with children.

But those lawyers don’t formally represent them. They offer advice to the children.

And those representatives only meet with detainees if the teen specifically asks to see a lawyer, the incident commander said. He estimated that of the approximately 3,100 teens who have been housed at Tornillo since it opened, only about 400 had requested and received a meeting with a legal representative.

Christopher Smith / HHS Photo Christopher Smith

Moreover, to organize a meeting with the lawyers, the children must fill out a form — a difficult task for many of the children at Tornillo. The incident commander said most of the facility’s residents are at a fourth-grade learning level.

Asked how children in the care of HHS with very little education were supposed to be able to navigate the legal system alone, or even the process of arranging and interacting with a lawyer, Weber acknowledged that “negotiating the legal system is incredibly difficult.”

Although the incident commander is hopeful the facility will close on Dec. 31, Weber didn’t commit to that deadline. “It depends how many kids come,” he said.

The facility — its population peaked at 1,637 on Sept. 28 — has 1,400 beds on standby in two giant tents. This is in case the Homestead shelter in Florida — another temporary facility that opened during the family separation crisis — needs to evacuate due to a hurricane.

In immigration court Thursday, Judge Robert S. Hough, who oversees all juvenile immigration proceedings in El Paso, asked the BCFS employee assisting the children before him about Tornillo’s supposed Dec. 31 closing date.

“Hurry up and wrap it up before you get any bigger,” suggested the judge.

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Once the smokescreen of all the Trump lies and racism clears, how could we ever explain to future generations what we have done to the most vulnerable among us and to children, young people, and young families that are our world’s future?  I guess it will go along with explaining how have we let Trump and his grifter buddies destroy, pollute, and poison the universe that also belongs to future generations.

PWS

10-15-18

 

COURTSIDE HISTORY: Elizabeth Drew Tells Those (Unlike Me) Too Young To Remember What “Watergate” Was REALLY About!

https://www.vanityfair.com/news/2018/10/will-the-myths-of-watergate-prove-misleading

Elizabeth Drew writes in Vanity Fair:

Considerable mythology has arisen about Watergate, and these myths are confusing the current discussion around why and how Nixon was driven from office—which in turn has muddled the conversation around the possible fate of Donald Trump, whom Democrats might move to impeach if they take control of the House in November. In any event, it’s worth separating myth from reality when it comes to Watergate and the impeachment proceedings against Richard Nixon.

One of the greatest misconceptions around Watergate is that it was the break-in at the headquarters of the Democratic National Committee, and the subsequent cover-up, that led to Nixon being forced to surrender the presidency. But, in fact, when Nixon returned to Washington from his vacation home in Key Biscayne, Florida, three days after the break-in had been discovered, he and chief of staff H.R. Haldeman had another matter on their minds. The two men were worried that if the burglars—a group of “plumbers,” established ostensibly to ferret out the source of leaks that upset the Nixon White House led by E. Howard Hunt, a former C.I.A. operative who’d participated in the Bay of Pigs invasion, and G. Gordon Liddy, a former F.B.I. G-man—talked to federal investigators, their other activities on behalf of the White House might come to light. The real role of the plumbers was to “destroy” (Nixon talked that way) Nixon’s real and perceived “enemies,” meaning that, as Haldeman put it to the president when they met three days after the discovered break-in, “the problem is that there are all kinds of other involvements.” (This conversation was recorded on the tape of which 18 and a half minutes was later discovered to have been erased—a revelation that set off one of a number of explosions in the Watergate story. John Ehrlichman, Nixon’s head of domestic policy, wrote in his memoir that Nixon had done the erasing at Camp David.)

The “other involvement” that Nixon and Haldeman were most worried about being discovered was a break-in on September 3, 1971, more than nine months before the famous Watergate intrusion. This earlier break-in occurred at the office of the psychiatrist of Daniel Ellsberg, the defense analyst who, in June 1971, leaked the Pentagon Papers, a Johnson-era analysis of the Vietnam War, to The New York Times, The Washington Post,and The Boston Globe. Although the report had nothing to do with the Nixon administration directly, it did raise serious questions about the rationale for the war. Nixon, egged on by national-security adviser Henry Kissinger, was enraged at the study’s leak, and wanted Ellsberg “crushed” and any further unwonted leaks stopped. And so the Office of Special Investigations—the plumbers unit—was established, and Nixon’s obliging top aides drew up “Hunt/Liddy Special Project No. 1,” the goal of which was to recover damaging intel on Ellsberg.

Once it was revealed, the break-in at the office of Dr. Lewis Fielding was considered by observers—as it had been by Nixon himself—to be far more serious than the Watergate break-in. Even conservative members of Congress were shocked. During hearings by a special Senate committee in the summer of 1973, Georgia’s conservative Democratic Senator Herman Talmadge (southern Democrats hadn’t yet gone red) asked Ehrlichman if he recalled the English principle in which “no matter how humble a man’s cottage is, even the king of England cannot enter without his consent.” Ehrlichman replied chillingly, “I am afraid that that has been considerably eroded over the years.”

As it happens, the burglars found no medical papers about Ellsberg in Dr. Fielding’s files. Nevertheless, that particular raid had far-reaching consequences. It remained secret until Ellsberg’s 1973 trial, when the Justice Department was obliged to disclose it. Citing this stunning news, the presiding judge dismissed the case against Ellsberg, saying that the administration’s behavior “offend[s] a sense of justice.” The Fielding break-in was incorporated into the articles of impeachment against Nixon.

Another oft-repeated Watergate myth, which arose from those Senate hearings, is that the committee vice-chair, Tennessee Republican Howard Baker, asked Nixon administration witnesses a particularly penetrating question: “What did the president know, and when did he know it?” This question was considered so clever that it’s been applied to determine whether Trump played a direct role in collaborating with the Russians in the 2016 presidential election. In fact, Baker was working with the Nixon White House, and the point of the question was to narrow the grounds for holding Nixon to blame for the Watergate break-in; unless a witness could pinpoint precisely that Nixon knew, for example, about the Watergate break-in ahead of time, he was blameless and couldn’t be held accountable for the acts of his aides and hired thugs.

The question of whether to hold a president accountable for the acts of his aides was a critical question facing the House Judiciary Committee in the summer of 1974, as it considered articles of impeachment. The most important of the three that it adopted, which it approved on July 30, was Article II, which accused Nixon of various abuses of power—wiretapping, using government agencies against his “enemies”—and also suggested that the president could be held responsible for a given “pattern or practice” on the part of his aides, meaning that simply winking and nodding would not insulate him from their untoward acts. The president determines the climate of the White House, and his aides can often ascertain what he wants done without receiving specific instructions. In effect, it didn’t matter whether Nixon knew about the Watergate break-in beforehand—according to Article II, he was implicated in it regardless.

A third widely misunderstood and highly important event that occurred shortly before the end of the Nixon presidency was the discovery of an excerpt from three tapes that Nixon, under pressure from his staff and the public, released belatedly on August 5. The tapes captured conversations between Nixon and Haldeman on June 23, three days after their initial meeting following the discovery of the Watergate burglars. The president admitted that he had withheld the recordings from even his own lawyers and staff, though in a seeming contradiction, he added that he hadn’t realized the “implications” of their contents. An unusually contrite Nixon admitted that it is “clear that portions of the tapes of these June 23 conversations are at variance with certain of my previous statements.” In a key passage, Nixon could be heard instructing Haldeman to tell the C.I.A. to tell the F.B.I. to halt its investigation into the Watergate case, for the sake of protecting matters pertaining to national security—a well-worn excuse for all sorts of misuses of power.

Here was indisputable evidence that the president was obstructing justice. And this, the myth goes, is why Nixon was forced to resign. In fact, by the time the missing piece of tape was released, the House Judiciary Committee had already approved, on a bipartisan basis, its three articles of impeachment (one was about obstruction of justice), and Nixon’s political position was so weakened by now that it was widely assumed he would be impeached and convicted. The scrap of tape only hastened his departure.

Nixon, photographed departing in his helicopter after resigning as U.S. president in 1974.

By Bill Pierce/The LIFE Images Collection/Getty Images.

As it turns out, Trump isn’t the only president whose aides occasionally saved him from himself by disregarding his orders. Nixon was often drunk at night (a condition exacerbated by Dilantin, an anti-convulsant that he’d been erroneously advised would help with depression), and he’d telephone aides at all hours to bark out instructions, once ordering the firing of an entire floor of State Department officials the next day. Those who received the calls were forced to use their (questionable) judgment to determine which orders to carry out, and which to ignore. One of the most infamous examples of this phenomenon was when Nixon instructed the plumbers to firebomb the Brookings Institution, where two former Johnson administration officials who’d worked on the Pentagon Papers were believed to be keeping unreleased portions of the report. In the confusion that was to be caused by the fire, the plumbers were instructed to break into said files and retrieve the unpublished papers. But someone on Nixon’s staff headed off this harebrained scheme. As it happened, neither man’s office contained even a file cabinet.

The events involving the break-ins and Nixon’s attempts to avoid prosecution—milquetoast in contrast to Trump’s—were more than a series of simple criminal acts. They were, in essence, a constitutional crisis. For some time, the question was whether the president could be held accountable to the Congress or the courts, as intended by the Constitution. But the situation was still more alarming than that: the Watergate break-in, as well as other activities perpetrated by Nixon’s goon squad, were parts of an effort by a sitting president to affect—if not determine—his Democratic opponent in the next election. Faced with a slate of possible opponents, including Ted Kennedy and Edmund Muskie, Nixon and his aides concluded that these potentially formidable candidates should be knocked out of the race, and that by contrast, Nixon believed, George McGovern, an anti-Vietnam War liberal (though he was a World War II hero), would be easy pickings in the general election. Ultimately, McGovern was chosen as the Democratic nominee, thanks in part to the machinations of the current governing party—an effort that veered dangerously close to fascism.

What may ultimately have saved the country was the fact that the plumbers botched every operation they undertook. In an act of carelessness that came to define their leadership, Hunt and Liddy had their picture taken in front of Dr. Fielding’s office door using a C.I.A.-supplied camera. (They then asked the C.I.A. to develop the pictures when they returned to Washington, which meant the agency had a copy of the two men at the site of their first and most serious misdeed.) The famous Watergate break-in was actually the plumbers’ fourth attempt at, in Nixon’s terms, “getting the goods” on D.N.C. chairman Lawrence O’Brien, whose office was in the Watergate complex. During their first attempt, they staged a dinner in the building as a pretext for a raid, but somehow ended up locked in a closet overnight. On their second try, they reached the D.N.C. offices, but discovered that they lacked the right equipment for breaking the lock. After one of the burglars returned to Miami to acquire said tool, they managed to break into the D.N.C.’s Watergate offices on their third attempt, over Memorial Day weekend of 1972. There, they bugged phones and photographed certain documents. But the tap on O’Brien’s phone didn’t work, and John Mitchell, formerly Nixon’s attorney general and now the chairman of his re-election committee, was said to have denounced the fuzzy pictures as “junk.” (Though it’s doubtful that that’s the exact word he used.) He instructed the plumbers to return.

Finally, the details around why a group of Republican leaders urged Nixon to resign have been misrepresented. The widely held belief, then and now, has been that the G.O.P. eminences from Capitol Hill, who told Nixon that his support among their colleagues had evaporated, acted courageously, out of patriotism. In truth, Nixon still had pockets of support around the country. These supposed courageous statesmen were hoping to avoid an inconvenient vote against the president. Nixon, anxious to keep his pension and to be granted the staff accorded presidents after they leave office voluntarily, agreed. He needed to pay off his sizable legal bills, and he wanted a staff to help write his memoirs and plot a return to public life—a scheme in which he succeeded beyond anyone’s wildest dreams. And so, on August 9, 1974, Nixon became the first president in our lifetime to resign from office. Before long, we may find out whether he will be the last.

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“Summer of ’73” — the Senate Watergate Hearings — when my wife Cathy and I arrived in Washington, D.C. and settled down across the river in Alexandria, VA. Alexandria was then home to the notorious Presidential Counsel John Dean who once testified that Nixon’s Chief Domestic Affairs Adviser, the equally notorious John Ehrlichman, suggested that he could use his short commute across the Potomac to “deep six” potentially incriminating evidence by throwing it in the river!

That led my cousin’s husband to (jokingly, of course) suggest that my job prospects in the Nixon Justice Department would be greatly improved by my Alexandria address!

Gotta give Trumpie credit for making “slimeballs of the past” like Ehrlichman & Dean “relevant” again.

PWS

10-15-18

HOW THE TRUMP ADMINISTRATION’S LIES AND MISCONDUCT HAVE CREATED THE VERY “FAKE BORDER CRISIS” THAT THEY CLAIM TO DECRY (& Use To Attempt To Justify Even More Draconian Measures To Mask Their Illegal & Immoral Conduct)

https://www.texasobserver.org/u-s-and-mexican-officials-collaborating-to-stop-asylum-seekers-attorneys-allege/

Gus Bova reports for the Texas Observer:

Elsa, a Guatemalan living in Southern Mexico, knew something was wrong. Her husband began traveling a lot without explanation, and physically abusing her and their two kids. When she eventually figured out that he’d gone to work for a cartel, she left him. But in 2016, the gang came after her to collect on debts the ex-husband had skipped out on. She fled to other Mexican towns, but the cartel men tracked her down. Then she went back to Guatemala, but they found her there, too. Finally, in September, Elsa decided to gamble on Uncle Sam — but the foot of the Reynosa-Hidalgo bridge was as far as she would get.

The Trump administration has repeatedly insisted that asylum-seekers should follow the rules by turning themselves in at ports of entry. Elsa tried to do just that. As a legal Mexican resident, she even had proper documentation for herself and her two children. Still, a Mexican customs agent stopped her at the turnstile and told her she couldn’t pass. He yelled at her that they were abusing their Mexican status by seeking asylum in the United States, and he threatened to tear their papers to shreds. Scared, the family slunk back into narco-ravaged Reynosa, and into total uncertainty.

The story of Elsa, whose name the Observer has changed for her protection, was included in a petition filed last week with the Inter-American Commission on Human Rights, a 59-year-old organization based in Washington, D.C., that investigates abuses in the Americas and issues recommendations to offending nations. The petition, filed by immigration attorneys working in the Rio Grande Valley, describes a systematic conspiracy between U.S. and Mexican customs agents to prevent asylum-seekers from requesting protection. The attorneys are asking the commission to tell both nations to stop stonewalling the law-abiding migrants.

U.S. customs agents blocking entry at the international boundary line on the Gateway International Bridge, Brownsville, July 2.  COURTESY/FILING WITH THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

Since June, the lawyers allege, Mexican customs officials along the Texas-Mexico border have been doing something virtually unprecedented: stopping asylum-seekers from entering the bridge, and if the migrants lack proper Mexican travel documents, the Mexican agents detain and even deport them. If an asylum-seeker makes it onto the bridge, U.S. customs officials call their Mexican counterparts to retrieve them; the Observerdocumented this phenomenon in a June story cited in the petition. In Nuevo Laredo, according to sworn affidavits from two Central American asylum-seekers, Mexican agents have demanded bribes of $500 per person to get onto the bridge. And in September, in Reynosa, they also started rejecting people, like Elsa, with Mexican papers.

“This petition highlights the reality of the U.S. working hand in glove with the Mexicans to completely shut down bridges, in violation of a number of human rights prohibitions,” said Jennifer Harbury, a longtime Rio Grande Valley attorney. Harbury has spent months documenting problems at the bridges and provided the majority of the information in the filing. According to Harbury and an affidavit from longtime Brownsville activist Mike Seifert, the international collaboration began after public outcry over long lines of asylum-seekers baking in the sun for weeks on the U.S. side of the bridges.

Harbury says in the filings that numerous Mexican agents at the Reynosa bridge have privately told her that the two governments are working together, and they’ve expressed frustration at doing the United States’ “dirty work.” Two other witnesses — a journalist and an activist — wrote similar affidavits. But U.S. customs agents have told Harbury that the Mexicans are acting alone, and a September letter she sent to Homeland Security Secretary Kirstjen Nielsen has gone unanswered. The United States began pressuring Mexico to stop migration at its southern border in 2014, and last month, Trump signaled he would redirect $20 million in foreign aid to beef up Mexico’s deportations. Neither U.S. nor Mexican immigration officials responded to Observer requests for comment.

The United States is unlikely, Harbury said, to heed the eventual request from the human rights commission. For one, the U.S. government rejects the authority of the commission’s enforcement arm, the Inter-American Court of Human Rights in San José, Costa Rica. (The same court recently ruled that many Latin American countries must recognize same-sex marriage.) But Harbury has higher hopes for Mexico, which is subject to the court and has an incoming leftist president in Andrés Manuel López Obrador. “I think the new president of Mexico is not going to want the commission saying they’re running dogs for Uncle Sam,” she said.

If Mexico stops its collaboration, then the United States would have to do its own “dirty work” of stopping asylum-seekers, and hold all liability for the potentially illegal actions. In California, a lawsuit was filed last year after border agents briefly turned away asylum-seekers all along the U.S.-Mexico border on the false premise that Trump’s inauguration had abolished asylum. That suit continues to play out.

In turning the bridges into hostile territory for asylum-seekers, the Trump administration has made a mockery of its own stated immigration goals. According to Attorney General Jeff Sessions, the point of the “zero tolerance” policy was to force families to use official ports of entry instead of crossing illegally. But U.S. customs agents started stonewalling asylum-seekers at the bridges. Now, with the threat of separation gone and the bridges still a dicey proposition, families have responded accordingly: More are crossing the river illegally to turn themselves in to Border Patrol. Immigration officials, in turn, are using this apparent spike to sound the alarm about another border crisis.

Meanwhile, many asylum-seekers from Central America, Africa and the Caribbean remain stranded, paralyzed by uncertainty in dangerous Mexican border towns where gangsters prey on refugees. In an affidavit, one would-be asylum-seeker wrote that she hears “shooting day and night” in Reynosa; another simply wrote, “many people die here.” As Harbury, the attorney, put it, “they’re like a snowball in Hell down there.”

Gus Bova reports on immigration, the U.S.-Mexico border and grassroots movements for the Observer. He formerly worked at a shelter for asylum-seekers and refugees. You can contact him at bova@texasobserver.org.

Get the latest Texas Observer news, analysis and investigations via FacebookTwitter and our weekly newsletter.

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Jeff Sessions is a key part of this legal charade and scofflaw behavior.  He disingenuously asserts that individuals should be using the legal system while doing everything in his power to make it impossible for individuals to present their asylum claims at ports of entry and have them fairly heard by fair and unbiased judges in Immigration Court.

The results of these shortsighted, cruel, illegal, and ultimately ineffective policies are to: 1) enrich smugglers, 2) make the trip more dangerous for asylum seekers, virtually insuring that more will die or be abused during the journey, and 3) to enlarge and promote the already robust “extralegal system” for immigrants and refugees. When orderly processing and the legal system for immigration are shut down or made less “user friendly,” the result is unlikely to be less overall immigration; just less immigration through legal channels and more “extralegal immigration” driven by Trump, Sessions, and their fellow White Nationalists.

Remember, we can diminish ourselves as a nation (and are doing so under Trump, Sessions, Nielsen, & Miller), but that won’t stop human migration!

Many thanks to Dan Kowalski over at LexisNexis Immigration Community for forwarding to me this timely and excellent reporting.

PWS

10-14-18

SOME ARTICLE III JUDGES “JUST SAY NO” TO SESSIONS’S “ZERO TOLERANCE” ABUSES OF CRIMINAL JUSTICE SYSTEM!

https://www.washingtonpost.com/local/public-safety/us-judges-balk-at-ice-detention-of-defendants-granted-bail-under-trump-zero-tolerance-push/2018/10/10/ccd42830-c4f7-11e8-b2b5-79270f9cce17_story.html

Spencer Hsu reports for WashPost:

Judges in the nation’s federal criminal courts increasingly are balking at what they call unlawful efforts by U.S. immigration authorities to continue to detain people charged with entering the country illegally, even after they have been granted bail.

The rulings complicate the Trump administration’s “zero tolerance” crackdown on defendants who are charged with illegally crossing the border but whom judges have determined do not pose a flight or safety risk.

The decisions force prosecutors to make a choice — charge defendants with illegal entry or reentry and risk that a federal judge releases them pending trial, or keep suspects locked up in civil detention pending deportation proceedings and forgo criminal prosecution.

A recent ruling by a federal judge in Washington highlights the human and legal issues at stake, the case of a dishwasher from El Salvador who has a wife and two children in the District, where he returned after two deportations.

The surge in such criminal cases stems from an April 2017 announcement by U.S. Attorney General Jeff Sessions prioritizing Justice Department prosecutions of entry and reentry crimes. More than 60,000 people have faced such criminal charges since then, with twice as many new prosecutions this July, the most recent month for which data is available, compared with the same month in 2017, according to Syracuse University’s Transactional Records Access Clearinghouse, which monitors cases.

Individuals caught without documents on a first offense can be charged with a misdemeanor, but anyone caught in the United States after a prior deportation can be charged with a felony and face more than a year in prison. Immigration-related prosecutions are now the majority of all federal criminal cases, stretching far beyond states bordering Mexico.


Attorney General Jeff Sessions early this month in Ohio. (Adam Cairns/Columbus Dispatch/AP)

Advocates for immigrants say the recent court rulings may limit the use of the criminal charges to pressure defendants to abandon efforts to stay in the United States. The impact on overall removal efforts remains to be seen, but courts appear to be pushing back at an expansion of authority by prosecutors and Immigration and Customs Enforcement.

In the District, one rejection of the tougher tactics came from U.S. District Judge Royce C. Lamberth, a 1987 appointee of President Ronald Reagan. On Sept. 26. Lamberth said the government cannot have it both ways — asking federal courts to deny bail to defendants awaiting criminal trial and then, if a judge disagrees, holding them anyway in the immigration system.

The decision came in the case of Jaime Omar Vasquez-Benitez, 38, who court papers say was picking food up at a restaurant in July when D.C. police stopped him for suspected gang activity and turned him over to ICE. Federal public defenders say Vasquez-Benitez had quit a gang and fears for his life if he is deported.

He was charged in August with felony reentry despite deportation orders in 2008 and 2014.

A federal magistrate and district judge ruled Vasquez-Benitez should be released on bail, but U.S. marshals returned him to ICE custody. Defense attorneys moved to enforce the release order, and the case ended up in front of Lamberth after Vasquez-Benitez was indicted.

Lamberth ruled that a landmark 1966 U.S. bail statute specifically covers migrants and must “trump” more-general immigration laws, releasing Vasquez-Benitez into a high-intensity supervision program. He wrote that courts have long “upheld as sacrosanct” the principle that no one can act as prosecutor and judge at the same time, and that the Justice Department cannot ignore bail rulings any more than it can shrug off a defendant’s right to a speedy trial.

The judge said prosecutors can pursue both criminal charges and civil removal cases against defendants but must abide by a judge’s decision to grant bail. Or they can forgo charges and keep defendants locked up in civil detention while pursuing deportation.

People detained without valid immigration documents may well be worse off if uncharged, “languishing” indefinitely without speedy trial or access to bail in ICE detention camps far from families or counsel, the judge noted.

“Nevertheless, the government can do that” under immigration law, Lamberth wrote. “But so long as the government invokes the jurisdiction of a federal court, the government must consent to the Court’s custodial dominion over the criminal defendants before it.”

A decision on whether to appeal is pending. Bill Miller, a spokesman for the U.S. attorney’s office for the District, said the office was reviewing the ruling.

In a July 2017 Justice Department bulletin to 94 U.S. attorney offices nationwide, Oregon federal prosecutor Gregory R. Nyhus said that federal criminal statutes and civil immigration laws “are reconcilable” and that “courts should be encouraged to harmonize these statutes rather than focusing on [one] to the complete exclusion of the other.”

The government’s position — that it can hold Vasquez-Benitez strictly for deportation on a reinstated removal order, unrelated to his prosecution — has yet to be decided by an appeals court.

Rulings by trial judges in similar cases have varied.

Since July 2017, federal judges in Washington, Manhattan, Brooklyn, Detroit, Cleveland and Austin have rejected the government’s approach, drawing on a 2012 district court opinion in Oregon and a similar 2015 ruling by the U.S. Court of Appeals for the 9th Circuit that “the executive branch has a choice to make” between holding an undocumented person for deportation or prosecuting that person under criminal law and the Constitution.

Federal judges in Buffalo and Philadelphia have come down on the other side, saying that criminal and immigration laws can “coexist” on “parallel” tracks. Before the Trump administration, prosecutors would typically drop criminal charges to pursue civil removal if a previously deported defendant won bail.

Yihong “Julie” Mao, staff attorney with the National Immigration Project of the National Lawyers Guild, said the group was “heartened” by court rulings upholding undocumented immigrants’ right to bail and pretrial release based on family and community ties. She added: “This is fundamentally a separation-of-powers issue. The Department of Justice cannot be both judge and prosecutor.”

Mary Petras, an assistant federal public defender who is representing Vasquez-Benitez in the District, declined to comment.

In court filings, Assistant U.S. Attorney Kenneth Clair Kohl argued that the defendant’s case is not covered by the 2012 ruling, because ICE is holding him solely to deport him, not to prosecute him.

The Salvadoran man was first arrested in 1997, falsely claimed Mexican citizenship and was allowed to go to Mexico, according to court papers. He was deported in 2008 after serving a three-year sentence for felony obstruction of justice in the District and again in 2014, before he was caught for a fourth time this July.

Prosecutors would have prosecuted Vasquez-Benitez even in past years because of what they said in court papers was his “threatening, violent behavior” and felony criminal conviction. Vasquez-Benitez was convicted of obstruction of justice for telling a woman in 2005 she would “pay the consequences” if she called the police, and a 2014 arrest warrant in El Salvador said he has been charged with extortion, prosecutors said.

“There may come a time . . . [when] immigration proceedings have concluded . . . forcing the United States to choose between physical removal and continuation of this criminal case. That time, however, has not yet come,” wrote Kohl and Assistant U.S. Attorney Elizabeth Dewar in an unsuccessful effort to detain the man.

Petras told the court the man is a longtime restaurant worker, and his wife works part time as a hotel housekeeper. Both have family nearby, and the couple’s 3-year-old daughter and 9-year-old son attended a recent court hearing.

Petras argued the man posed no flight risk, because he is seeking to halt his deportation after gang members in El Salvador sent him a message warning that he had “signed his death warrant” by quitting the gang and removing gang tattoos.

The lawyer said the fact that her client has lived in the Washington area for years and returned shows that he “wants to be here and that he has no intent or incentive to flee.”

Read more:

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Compare what is happening in DC and some other jurisdictions with the “go along to get along” approach by some U.S. District Judges and U.S. Magistrate Judges along the border whom I have criticized in prior posts. The latter have allowed Sessions, Nielsen, and co. to turn their courts into “assembly line justice” — the kind that Session is implementing in his “wholly owned” U.S. Immigration Courts.

It’s pretty clear from the published reports that almost none of those being railroaded through that system actually understand the full immigration implications of their guilty pleas, nor do they understand how they can apply for asylum and what other rights they might have under the “civil immigration system.” Indeed, accepting guilty pleas without insuring that those entering the pleas fully understand the civil immigration situation and implications, including the likelihood of indefinite civil immigration detention and possible denial of a chance for a full hearing before an Immigration Judge, is arguably a violation of the U.S. Supreme Court’s decision in Padilla v. Kentucky.

I also have a “personal recollection” of Judge Royce Lamberth from decades ago when he was the Chief of the Civil Division at the U.S. Attorneys Office for DC and I was the Deputy General Counsel/Acting General Counsel at the “Legacy INS.” On several occasions I had to trek over from the “Central Office” in the “Chester Arthur Building” at 4th and Eye St., NW to the U.S. Courthouse complex on 5th Street to explain and justify the INS position to Royce.

He was known as a formidable individual, even in those days — a chief litigator who brooked no-nonsense from USG Agencies and who was concerned with maintaining the Government’s reputation for integrity and legal excellence before the U.S. Courts. That probably has much to do with how he got nominated and confirmed to be a U.S. District Judge and why he still brooks no-nonsense from the “Masters of Nonsense” in the Trump Administration.

PWS

10-13-18

MILLER & TRUMP ADMINISTRATION HATCHING ANOTHER ILLEGAL CHILD SEPARATION PROGRAM AS THEIR CRUEL & COUNTERPRODUCTIVE WHITE NATIONALIST ENFORCEMENT CONTINUES TO FAIL!

https://www.washingtonpost.com/local/immigration/trump-administration-weighs-new-family-separation-effort-at-border/2018/10/12/45895cce-cd7b-11e8-920f-dd52e1ae4570_story.html?utm_term=.e82d531c008e

Nick Miroff, Josh Dawsey, & Maria Sacchetti report for WashPost:

The White House is actively considering plans that could again separate parents and children at the U.S.-Mexico border, hoping to reverse soaring numbers of families attempting to cross illegally into the United States, according to several administration officials with direct knowledge of the effort.

One option under consideration is for the government to detain asylum-seeking families together for up to 20 days, then give parents a choice — stay in family detention with their child for months or years as their immigration case proceeds, or allow children to be taken to a government shelter so other relatives or guardians can seek custody.

That option — called “binary choice” — is one of several under consideration amid the president’s frustration over border security. Trump has been unable to fulfill key promises to build a border wall and end what he calls “catch and release,” a process that began under past administrations in which most detained families are quickly freed to await immigration hearings. The number of migrant family members arrested and charged with illegally crossing the border jumped 38 percent in August and is now at a record level, according to Department of Homeland Security officials.

Senior administration officials say they are not planning to revive the chaotic forced separations carried out by the Trump administration in May and June that spawned an enormous political backlash and led to a court order to reunite families.

But they feel compelled to do something, and officials say senior White House adviser Stephen Miller is advocating for tougher measures because he believes the springtime separations worked as an effective deterrent to illegal crossings.

At least 2,500 children were taken from their parents over a period of six weeks. Crossings by families declined slightly in May, June and July before surging again in August. September numbers are expected to be even higher.

While some migrants worried about separations, others felt seeking asylum was worth the risk

For some seeking asylum, family separations were worth the risk: ‘Whatever it took, we had to get to this country’

While some inside the White House and DHS are concerned about the “optics” and political blowback of renewed separations, Miller and others are determined to act, according to officials briefed on the deliberations. There have been several high-level meetings in the White House in recent weeks about the issue. The “binary choice” option is seen as one that could be tried out fairly quickly.

“Career law enforcement professionals in the U.S. government are working to analyze and evaluate options that would protect the American people, prevent the horrific actions of child smuggling, and stop drug cartels from pouring into our communities,” deputy White House press secretary Hogan Gidley said in an emailed statement.

Any effort to expand family detentions and resume separations would face multiple logistical and legal hurdles.

It would require overcoming the communication and data management failures that plagued the first effort, when Border Patrol agents, Immigration and Customs Enforcement officials and Department of Health and Human Services caseworkers struggled to keep track of separated parents and children.

The Trump administration believes it is on solid legal ground, according to two officials, in part because U.S. District Judge Dana M. Sabraw, who ordered the government to reunite separated families in June, approved the binary-choice approach in one of his rulings. But a Congressional Research Service report last month said “practical and legal barriers” remain to using that approach in the future and said releasing families together in the United States is “the only clearly viable option under current law.”

‘Administration officials said the CRS report cited earlier legal rulings. But the American Civil Liberties Union, which launched the separations lawsuit, disputed that interpretation and said it would oppose any attempt at expanded family detentions or separations.

“The government need not, and legally may not, indiscriminately detain families who present no flight risk or danger,” ACLU attorney Lee Gelernt said in an email. “It is deeply troubling that this Administration continues to look for ways to cause harm to small children.”

Another hurdle is that the government does not have detention space for a large number of additional families. ICE has three “family residential centers” with a combined capacity of roughly 3,000 parents and children. With more than four times that many arriving each month, it is unclear where the government would hold all the parents who would opt to remain with their children.

But Trump said in his June 20 executive order halting family separations that the administration’s policy is to keep parents and children together, “including by detaining” them. In recent weeks, federal officials have taken steps to expand their ability to do that.

In addition to considering “binary choice” and other options, officials have proposed new rules that would allow them to withdraw from a 1997 federal court agreement that bars ICE from keeping children in custody for more than 20 days.

The rules would give ICE greater flexibility to expand family detention centers and potentially hold parents and children longer, though lawyers say this would be likely to end up in court.

Officials have also imposed production quotas on immigration judges and are searching for more ways to speed up the calendar in its courts to adjudicate cases more quickly.

Federal officials arguing for the tougher measures say the rising number of family crossings is a sign of asylum fraud. DHS Secretary Kirstjen Nielsen has blasted smugglers for charging migrants thousands of dollars to ferry them into the United States, knowing that “legal loopholes” will force the administration to release them pending a court hearing. Federal officials say released families are rarely deported.

Advocates for immigrants counter that asylum seekers are fleeing violence and acute poverty, mainly in Central America, and deserve to have a full hearing before an immigration judge.

“There is currently a crisis at our southern border,” DHS spokeswoman Katie Waldman said in a statement, adding, “DHS will continue to enforce the law humanely, and will continue to examine a range of options to secure our nation’s borders.”

In southern Arizona, so many families have crossed in the past 10 days that the government has been releasing them en masse to shelters and charities. A lack of available bus tickets has stranded hundreds of parents and children in Tucson, where they sleep on Red Cross cots in a church gymnasium.

At a Senate hearing Wednesday, Sen. John Kyl (R-Ariz.) told Nielsen that migrants were “flooding into the community” and that authorities there had “no ability to do anything about it.”

Nielsen said lawmakers needs to give DHS more latitude to hold families with children in detention until their cases can be fully adjudicated — a process that can take months or years because of huge court backlogs.

DHS officials have seen the biggest increase this year in families arriving from Guatemala, where smugglers called “coyotes” tell migrants they can avoid detention and deportation by bringing a child, according to some community leaders in that country.

On Friday, Nielsen called for a regional effort to combat smuggling and violence in the region and to “heighten our penalties for traffickers.”

“I think there’s more that we can do to hold them responsible, particularly those who traffic in children,” she said in a speech in Washington at the second Conference on Prosperity and Security in Central America.

More than 90,000 adults with children were caught at the southwest border in the first 11 months of fiscal 2018. The previous high for a single year was 77,600 in 2016

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My recollection is that 1) the DOJ conceded in court that a policy of intentionally separating families is unconstitutional; and 2) Federal Courts have held that detention of individuals who are neither security risks nor likely to abscond for the primary purpose of “deterrence” is illegal.

So, if this facially illegal program is put into action, why shouldn’t Stephen Miller go to jail and be held personally liable for all the damages he causes with his scofflaw racist policies? Why shouldn’t Nielsen, Sessions, and others who are part of the Miller White Nationalist scheme also be held personally liable?

More cruelty, more wasting of taxpayer resources, more abuse of the judicial process by the Trump Administration.

Oh, and by the way. although today’s out of control U.S. Immigration Court backlogs began with “Aimless Docket Reshuffling” during the Bush II and Obama Administrations, Sessions and the Trump Administration have pushed them to astounding new levels with their incompetence and anti-asylum bias. Don’t blame the victims for the Government’s irresponsible actions!

If folks who believe in human decency and the rule of law don’t get out and vote, these abuses and degradations of our national values will continue.

PWS

10-12-18

SURPRISE: TRAC STATS SHOW TRUMP ADMINISTRATION IS “BUSTING” MOSTLY NON-CRIMINAL MIGRANTS!

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Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASE

Greetings. The vast majority (58%) of individuals in Immigration and Customs Enforcement (ICE) custody as of June 30, 2018 had no criminal record. An even larger proportion – four out of five – either had no record, or had only committed a minor offense such as a traffic violation. Case-by-case records on each of these 44,435 individuals held in ICE custody were recently obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. These data provide a detailed snapshot of ICE custody practices.

Individuals were mainly from four countries. Forty-three percent were from the Central American countries of Guatemala, Honduras and El Salvador, while an additional 25 percent were Mexicans. At least 18 percent had resided continuously in the U.S. for ten years or more, and one out of four had been in the country for at least five years.

Many individuals had been held in ICE custody for a relatively short period of time. Forty-one percent had thus far stayed in ICE custody for 30 days or less. At the other extreme, almost 2,000 individuals had been detained for more than a year, and a few individuals had already been continuously detained according to ICE records for over ten years.

The data document the dominance of private for-profit prisons in the large-scale detention of ICE detainees. Overall, fully 71 percent of detainees were housed in facilities operated by private companies. The rest of the facilities were operated by government, including by counties, cities, and the federal government. Texas held 29 percent of all ICE detainees.

Read the full report at:

http://trac.syr.edu/immigration/reports/530/

Access the brand new free web query tool to examine who ICE has in custody and where they are being held. Details on state, county, facility name, nationality, gender, length of time in the U.S., green card status, if convicted the most serious criminal offense, and much more are available at:

http://trac.syr.edu/phptools/immigration/detention/

In addition, there are many additional TRAC free query tools – which track Border Patrol arrests, ICE detainers and removals, the Immigration Court’s backlog, the handling of juvenile cases and more. For an index to the full list of TRAC’s immigration tools go to:

http://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563

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Expensive, divisive, often counterproductive, and overall serving no discernible national interest: That’s the Trump immigration policy!

PWS

10-12-18

THE GIBSON REPORT – 10-09-18– Compiled By Elizabeth Gibson, Esq., NY Legal Assistance Group

THE GIBSON REPORT – 10-09-18– Compiled By Elizabeth

Gibson, Esq., NY Legal Assistance Group

 

 

TOP UPDATES

 

Nielsen v. Preap will determine whether thousands of longtime U.S. residents face indefinite detention without a hearing.

The Atlantic: The stakes are higher in a Supreme Court case to be heard [] Wednesday. Nielsen v. Preap may determine whether thousands of longtime residents of the U.S. face indefinite detention without a hearing…Nielsen v. Preap will be heard by eight of the justices who decided Jennings—joined by the newly confirmed Justice Brett Kavanaugh.

 

An ICE Memo Lays Out The Differences Between Trump And Obama On Immigration Enforcement

BuzzFeed: Attorneys for Immigration and Customs Enforcement were restricted from granting reprieves for certain immigrants facing deportation, ordered to review and potentially reopen previously closed cases, and told that nearly all undocumented immigrants were priorities for deportation, according to a previously unreleased memo obtained by BuzzFeed News.

Judge Temporarily Blocks Termination of TPS for El Salvador, Haiti, Nicaragua, and Sudan

U.S. District Judge Edward Chen granted the plaintiff’s motion for preliminary injunction, stopping the termination of TPS for immigrants from El Salvador, Haiti, Nicaragua, and Sudan. The preliminary injunction is effective immediately. (Ramos et al. v. Nielsen et al, 10/3/18) AILA Doc. No. 18092833

 

USCIS Provides Q&As from Teleconference on Updated NTA Policy Guidance

USCIS: representatives provided an overview of the memorandum and addressed many questions submitted in advance. Highlights include: Q6, Q12, Q15, Q33, Q50, Q62, and Q63.

 

USCIS Policy Update on Issuing RFEs and NOIDs

USCIS: representatives provided an overview of the memorandum and addressed many questions submitted in advance by the CISOMB… this PM does not change the RFE

and NOID policies and practices that apply to the adjudication of DACA and DACA-related requests. This PM also will not impact asylum, refugee, and NACARA cases because of existing regulatory and policy guidance specific to those requests… For certain filings, an RFE is necessary (updated taxes for a Form I-864; medical exam for a long pending adjustment of status case).


Leaked Report Shows Dysfunction Of Baltimore’s Immigration Court

VICE: But Maryland, with its more than 34,000 pending cases, has the fastest-growing backlog, largely because its sole immigration court, the Baltimore Immigration Court, is one of the most beleaguered and understaffed in the country, according to a confidential Department of Justice review obtained by VICE News.

 

Trump stops granting visas to same-sex partners of U.N. officials

VICE: The policy change came into effect this week and will impact staff at organizations such as the United Nations, the World Bank, and the International Monetary Fund. The administration originally flagged the new policy back in July…Foreign partners currently in the U.S., and who wish to remain in the country, have been given until the end of the year to submit proof of marriage to the State Department or face being forced to leave within 30 days.

 

U.S. citizens applying for green cards for noncitizen spouses see growing waits

NBC: Anastasia Tonello, president of the American Immigration Lawyers Association, said she believes Trump administration policy changes are responsible in part for fueling delays by creating more work for immigration officers.

 

Inspectors Find Nooses in Cells at Immigration Detention Facility

NYT: Migrants imprisoned at the country’s largest privately-run adult immigration detention facility manage to regularly hang “nooses” fashioned from bedsheets in their cells, according to a report by federal inspectors made public on Tuesday.

 

LITIGATION/CASELAW/RULES/MEMOS

 

Another Setback for Trump Administration in Sanctuary Case

ImmProf: In an order released on Friday, a federal judge in California struck down an immigration law that the Trump administration has used to go after cities and states that limit cooperation with immigration officials. The ruling by District Judge William Orrick also directed the U.S. Department of Justice to give California $28 million that was withheld over the state’s immigration policies.

 

BIA Reopens Proceedings for Respondent Who Meets Requirements for “U” Visa

Unpublished BIA decision reopens proceedings sua sponte in light of USCIS letter stating that respondent satisfied the requirements for “U” nonimmigrant status but a visa was not yet available. Special thanks to IRAC. (Matter of Patel, 9/15/17) AILA Doc. No. 18100500

 

BIA Dismisses Respondent’s Appeal and Discusses §18.5 of the California Penal Code

The BIA found that the amendment to §18.5 of the California Penal Code, which retroactively lowered the maximum possible sentence from 365 days to 364 days, does not affect the applicability of INA §237(a)(2)(A)(i)(II). Matter of Velasquez-Rios, 27 I&N Dec. 470 (BIA 2018) AILA Doc. No. 18100570

 

USCIS Advance Copy of Proposed Regulations on Public Charge Ground of Inadmissibility

USCIS advance copy of a notice of proposed rulemaking to revise the regulations on the public charge ground of inadmissibility. The notice of proposed rulemaking will be published in the Federal Register on 10/10/18, and comments will be due 60 days from the date of publication. AILA Doc. No. 18092430

 

USCIS 60-Day Notice and Request for Comment on Proposed Revisions to Form I-912, Request for Fee Waiver

USCIS 60-day notice and request for comment on proposed revisions to Form I-912, Request for Fee Waiver. The proposed changes would remove the receipt of a means-tested benefit as a criterion for receipt of a fee waiver. Comments are due 11/27/18. (83 FR 49120, 9/28/18) AILA Doc. No. 18092870

 

DHS OIG: Results of Unannounced Inspections of Conditions for Unaccompanied Children in CBP Custody

DHS OIG issued a report based on visits between June 26, and 28, 2018, by an OIG team to nine CBP facilities in McAllen and El Paso, Texas, including five Border Patrol stations and four OFO ports of entry. DHS OIG found that children were held longer than the 72 hours generally permitted by law. AILA Doc. No. 18100203

 

USCIS Announces the Use of Tablets During Naturalization Interviews

Posted 10/4/2018

USCIS announced that on 10/1/18, USCIS began using digital tablets to administer the English reading and writing tests during naturalization interviews.

AILA Doc. No. 18100434

 

USCIS Notice of Reestablishment of Matching Program for Receipt of Federal Benefits in California

USCIS notice of the reestablishment of the ‘‘Verification Division DHS–USCIS/CA–DSS’’ computer matching program, which will be used to determine whether benefit applicants in California possess the requisite immigration status to be eligible for the TANF and SNAP programs. (83 FR 50672, 10/9/18) AILA Doc. No. 18100900

 

CBP Statement on Canada’s Legalization of Marijuana and Crossing the Border

CBP released a statement on Canada’s legalization of marijuana, stating that “working in or facilitating the proliferation of the legal marijuana industry in U.S. states where it is deemed legal or Canada may affect admissibility to the U.S.” AILA Doc. No. 18100804

 

RESOURCES

EVENTS

 

ImmProf

 

Tuesday, October 9, 2018

Monday, October 8, 2018

Sunday, October 7, 2018

Saturday, October 6, 2018

Friday, October 5, 2018

Thursday, October 4, 2018

Wednesday, October 3, 2018

Wednesday, October 3, 2018

Tuesday, October 2, 2018

Monday, October 1, 2018

 

AILA NEWS UPDATE

http://www.aila.org/advo-media/news/clips

 

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Thanks, Elizabeth!

 

PWS

10-12-18

 

 

JUSTICE GORSUCH EXPRESSES SOME SKEPTICISM ABOUT GOV’S UNLIMITED POWER IN IMMIGRATION DETENTION CASE!

6https://www.buzzfeednews.com/article/chrisgeidner/supreme-court-dhs-immigrant-detention

Chris Geidner reports for BuzzFeed News:

In a case that the ACLU says could affect thousands of immigrants, the Supreme Court on Wednesday considered when the government has the right to detain a class of immigrants without a bail hearing.

Under a 1996 law, the federal government is allowed to detain immigrants whose criminal conviction or involvement in terrorism-related activities would make them inadmissible or deportable. The law says the government “shall” take any of those immigrants into custody “when the alien is released” from criminal custody. The question before the justices is: What happens if the Department of Homeland Security doesn’t do so immediately?

The arguments on Wednesday focused on the technicalities of the 1996 law, rules of grammar, and timelines — not the sort of fiery rhetoric usually favored by President Donald Trump or Attorney General Jeff Sessions when talking about immigrants.

And while the case was granted to resolve the question of whether the statute still applied if DHS does not act immediately — whether there is any time restriction — the arguments shifted to a question of what limitation would be reasonable.

After a back-and-forth with Justice Sonia Sotomayor and a question from Justice Ruth Bader Ginsburg, Justice Neil Gorsuch spoke up early in the Wednesday arguments, asking, “[D]oes the government have any view about if ever the obligation [to take an immigrant into custody] lapses? Could it be 30 years? … Thirty years, and the government was aware of him the entire time and chose not to act. … Is there any limit on the government’s power?”

The government lawyer, Zachary Tripp from the Solicitor General’s Office, said the law created “a continuing obligation” that “does not lapse.”

Later, when Justice Stephen Breyer raised a similar question and Tripp began answering about when certain underlying crimes would be covered under the detention provision, Gorsuch interjected, said that back-and-forth was “quibbling,” and redirected Tripp to the larger question: “Justice Breyer’s question is my question, and I really wish you’d answer it.”

Breyer then stated his question more directly: “Is the government’s position that this paragraph, which says shall be arrested upon release, applies to a person who has been released 50 years before?”

Tripp, not giving in at all, said the government’s position is “absolutely that this applies regardless of the time” that’s passed.

. . . .

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

Read the complete article at the link.

I had predicted the possibility that Justice Gorsuch’s past jurisprudence questioning the extent of and deference to Executive Power could make him an “honest broker” in some immigration cases.

I’d like to believe Justice Kavanaugh’s testimony that he will approach cases in a fair and impartial manner. But, neither his partisan outburst during his conformation nor his fawning performance during the unnecessary “formal swearing in” that became a Trump campaign rally were very encouraging from a fairness and impartiality standpoint.

Both his reputation and the country would be better served if he filled the “open minded conservative” role played by his predecessor and mentor Justice Kennedy rather than the “bought and paid for partisan vote” that all the Senators and Trump expect him to be.

Indeed, the one unifying theme of the Senate confirmation process was that all believed that he would perform as a totally predictable right-wing partisan vote. If he doesn’t live up to this expectation, the Dems will be (pleasantly) shocked and the GOP outraged at his “betrayal.” That’s why he would do well to at least occasionally listen carefully to the analysis of some of his more “liberal leaning” colleagues.

Here’s the full transcript of the oral argument courtesy of Dan Kowalski over at LexisNexis Immigration Community: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/16-1363_h315.pdf

PWS

10-11-18

THE TRUTH IS OUT: The Next Time Your Restrictionist Friends Or Relatives Falsely Claim That Everyone Opposed To Trump’s Cruel, Racist, Counterproductive, & Ultimately “Designed to Fail” Immigration Policies Favors “Open Borders,” Here Are Some “Talking Points” That Might Help You Educate Them

Recently I got involved in explaining how one could respond to this “restrictionist editorial” from Investor’s Business Daily, asserting that any Democrat who refused to buy into the Trump Administration’s draconian, and often illegal, immigration enforcement program was in favor of “open borders” and claiming to provide some (actually highly bogus) examples. “https://www.investors.com/politics/editorials/illegal-immigration-democrats-open-borders/

Gotta hope that these dudes do a better job on investment news than they do on immigration policy! So here are some “talking points” that I prepared to help set the record straight!

OPEN BORDERS

“OPEN BORDERS” TALKING POINTS

 

  • Since Congressional Resolutions are nonbinding, they commonly are used as a political stunt by the party in control of a particular branch of Congress. The idea is to force members of the opposition party to “vote no” so that can be used against them in political campaigns. (Sadly, many voters have no idea what a “Resolution” is, so they are misled into thinking it’s opposition to an actual bill or law.)
  • Under the Trump Administration, ICE has engaged in disturbing and well-documented abuses.Here’s just an example of abuses in detention documented by the DHS’s own Inspector General: file:///Users/paulwickhamschmidt/Documents/Federal%20Investigation%20Finds%20ICE%20Fails%20to%20Address%20Sexual%20Assault,%20Abuse%20in%20Immigrant%20Detention%20Center.webarchive
  • Indeed, the “civil deportation side” of ICE under Trump has gotten so misdirected, out of control, and disrespected, that a number of ICE Senior Special Agents who do law enforcement work such as combatting smuggling, terrorism, and fraud recently petitioned to be separated from ICE: https://www.washingtonpost.com/world/national-security/seeking-split-from-ice-agents-say-trumps-immigration-crackdown-hurts-investigations-morale/2018/06/28/7bb6995e-7ada-11e8-8df3-007495a78738_story.html?utm_term=.340e5a8213f2
  • So, given the bad reputation of ICE immigration enforcement, it’s hardly surprising that Democrats (and perhaps some thoughtful GOP legislators) don’t want to be “hoodwinked” into a political scheme of carte blanche endorsing an agency and its employees who have credibly been accused of many abuses.
  • Democrats don’t deny that civil immigration enforcement (apprehensions and removals) is necessary. But, it is certainly debatable whether ICE as currently structured, staffed, “branded,” and led is the right way to go about it. Even then, the “Abolish ICE” movement has not gained majority support among Democrat politicians. To view it as the “policy” of the Democratic Party or the majority of Democrats is simply wrong and misleading.
  • It’s possible to debate whether President Obama deserved his “Deporter-in- Chief” title.It’s also possible to debate the immigration enforcement strategies his Administration adopted. But, it’s beyond reasonable debate that Obama 1) gave immigration enforcement a very high priority; and 2) was in some enforcement areas, from a purely statistical basis, more effective than his predecessors and than Trump. Here’s a good analysis of the Obama immigration enforcement program: file:///Users/paulwickhamschmidt/Documents/The%20Obama%20Record%20on%20Deportations:%20Deporter%20in%20Chief%20or%20Not%3F%20%7C%20migrationpolicy.org.webarchive
  • Contrary to the false scenarios and manipulated statistics presented by the Trump Administration, the Department of Justice, and immigration restrictionists, the Government’s own statistics show that when released from detention and represented by counsel, asylum seekers show up for their hearings nearly all the time: http://www.sandiegouniontribune.com/news/immigration/sd-me-family-asylum-20180817-story.html
  • In those cases where they don’t appear, it is often because of defective notices from overwhelmed Government immigration agencies or because nobody has clearly explained their rights and responsibilities to them in language they can understand. Indeed, many “in absentia” removal orders are subsequently vacated and reopened by the Immigration Courts.
  • Even in this highly anti-asylum administration, applicants who actually manage to get a hearing on the merits of their asylum claims win about one in three times, certainly a high enough chance of success to encourage most to show up.
  • Detention is both incredibly expensive and dehumanizing. DHS detention is tied up in numerous court cases. Since asylum applicants as a group are seldom either security or flight risks, looking for ways to process them outside detention makes more sense than building more expensive and substandard private jails.
  • “Sanctuary Cities” is largely a misnomer, because all jurisdictions provide some degree of cooperation to DHS consistent with law. Two things drive this phenomenon. First, courts have held that detainers issued by DHS for civil removal purposesare not legally enforceable because a judicial official does not issue them based on probable cause to believe that a crime has been committed. Second, ICE’s enforcement efforts aimed at non-criminal community members have sown fear and mistrust that has undermined local law enforcement. Victims are afraid to report serious crimes and individuals are unwilling to cooperate with local police or be witnesses in criminal prosecutions because of fear of deportation. Consequently, many localities have limited cooperation with DHS to that legally required: cooperating in the apprehension and removal of serious criminals, answering specific requests for information, or honoring criminal warrants issued by Article III Federal Judges.
  • The Administration has attempted to punish states and localities that have limited their cooperation. Federal Courts have consistently held the Administration’s efforts illegal and enjoined them. https://thehill.com/regulation/court-battles/410149-california-judge-rules-against-sessionss-effort-to-hit-sanctuary
  • Actually, it’s the Trump Administration not “Sanctuary Jurisdictions” that are scofflaws, engaging in illegal actions.
  • Whether or not all residents of San Francisco should be able to vote for school board is a local matter that is not indicative of any national position of the Democratic Party. All children in the United States, regardless of their status or the status of their parents, are entitled to public education under the Supreme Court’s ruling in Plyler v. Doe; and many undocumented individuals pay taxes, and nearly all would if there were a better system to allow them to do so. Therefore, on it’s face letting all residents have a say in how the local schools are run is hardly an unreasonable approach, regardless of whether or not it’s the best approach.
  • Moreover, what’s happening in San Francisco is by no means indicative of what Democrats elsewhere in the country think. Neither the Democratic Party nor the majority of Democrats has specifically endorsed letting undocumented individuals vote for school board.
  • Approximately 11 million individuals reside in the US without documents. The vast majority are law-abiding, productively employed members of our community, many with relatives who are citizens or Green Card holders. While those who have committed serious crimes or mean our country harm should of course be identified and removed (which has been a priority of every Administration over the past 50 years), the vast majority of the rest are not going to be forcibly removed no matter how nasty and cruel immigration enforcement policies become.
  • Therefore, developing some type of “earned legalization” that would either give them a path to citizenship, or at least make it possible for them legally to live, work, pay taxes and raise their families in the US makes more sense than forcing them to live in an underground status.
  • Unlike massive, ultimately ineffective enforcement programs, legalization programs are “self-funded” through application fees so they don’t add to the deficit like expanded enforcement programs.
  • In the long run, we need wiser leaders who will implement a larger and more realistic legal immigration system that gives more credence both to the forces abroad that force individuals to come here and the U.S. market forces that make employers in the U. S want and need to employ immigrants.
  • We are a nation of immigrants. We are not going to stop human migration; however, we could harness its power to maximize use of our legal immigration system, minimize the number of future migrants who come by way of the “extra legal” system, and make immigration enforcement more reasonable, achievable, and publicly acceptable.

 

PWS

10-09-18

 

 

 

BIASED COURTS: EL PASO’S “HANGING JUDGES” ARE DEATH TO ASYLUM CLAIMS, EVEN THOSE THAT ARE BEING GRANTED IN MANY OTHER IMMIGRATION COURTS – The Due Process Problems In The U.S. Immigration Courts Go Much Deeper Than Jeff Sessions’s Outrageous White Nationalist Policies! — Author Justine van der Leun Presents A Meticulously Researched, Moving Report Of Unfairness That “Scotches” All Of The DOJ/EOIR “Bogus Excuses” & Exposes The Deep, Unacceptable Bias That Makes Our Immigration Courts A National Disgrace!

https://www.vqronline.org/reporting-articles/2018/10/culture-no

Here’s an excerpt from Justine van der Luen’s much longer article “A Culture of No,” published in the Fall 2018 issue of VQR (quoting me, among many others).

. . . .

“Here in the US, there is democracy, but we still have fear,” he said. “I got asylum but if they want to make a problem, they can do it.” He was terrified that the smallest misstep, no matter how apparently meaningless, how accidental or random, could signal the difference between freedom and imprisonment—and from there, between life and death.

To beat the extreme odds in El Paso, Isaac had spent fifteen months in detention and paid thousands of dollars in legal fees to an elite lawyer who then worked dozens of pro bono hours on his appeal. This feat required an enormous amount of translated and notarized evidence discretely sent overseas by family members in Syria, the emotional and financial support of his brother and his lawyer, and the wherewithal to withstand a complex, taxing, humiliating process. How many asylum seekers could or should have to endure such an ordeal in order to gain internationally recognized rights meant to protect the persecuted?

As Isaac started over in America, other asylum seekers I had been tracking were less fortunate. Jesus Rodriguez Mendoza, the Venezuelan, had been transferred to a notorious detention center in Miami, which his legal team believed was punishment for his public protests; he remained on the El Paso docket, but now was physically separated from his lawyers, his fourth parole request denied. Berta Arias, the Honduran grandmother whose relief Judge Abbott had granted and then quickly rescinded, lost her appeal and was deported without the granddaughter she had raised. The Central American man whose brother, with an identical case, had won protection in New York City, remained in the Camp. It wasn’t only those from the Americas who were out of luck. Cambodians, Cameroonians, Guineans, and Kenyans I’d followed all had their claims denied; they had since been deported or were waiting on appeals.

One young Central American woman who had been repeatedly raped had managed to win relief, but only after her lawyer, unable to bear the thought of her client being sent home to be violated yet again, paid over $2,000 from her own pocket to fly two expert witnesses into Texas to clinch the case.

“I think in El Paso, they want to see that people died,” a young Salvadoran asylum seeker told me. He was an Evangelical Christian, who preached to local kids. Members of MS-13 had shot at him with a machine gun, killing a pedestrian who happened to be standing nearby, and kidnapped and murdered his fifteen-year-old friend who had joined him in proselytizing. The young man, his mother, and his brother made their way to the US. Despite having a devoted pro bono lawyer, he lost his asylum case, as well as his appeal, on the grounds of credibility (the judge believed he was simply an economic migrant who had invented the threats); his mother also struggled to find legal relief in El Paso.

“Maybe if I died, and then my mom asked for asylum, maybe then she can get protection,” he told me calmly. “They tried to kill me, but I didn’t die, so it’s not good enough for them.”

NEWLY DISCLOSED ICE MEMO RESTRICTS PROSECUTORS’ ABILITY TO OFFER PROSECUTORIAL DISCRETION (“PD”) – Also Requires Review Of Previously Administratively Closed Cases With Eye Toward Re-Docketing (Thereby Increasing The Court Backlog)

https://www.buzzfeednews.com/article/hamedaleaziz/trump-ice-attorneys-foia-memo-discretion

Hamed Aleaziz reports for BuzzFeed News:

An ICE Memo Lays Out The Differences Between Trump And Obama On Immigration Enforcement

Among the instructions: Attorneys were told they no longer had to check the inbox where immigration lawyers emailed requests for deportation relief.

Posted on October 8, 2018, at 3:09 p.m. ET

    John Moore / Getty Images

    Attorneys for Immigration and Customs Enforcement were restricted from granting reprieves for certain immigrants facing deportation, ordered to review and potentially reopen previously closed cases, and told that nearly all undocumented immigrants were priorities for deportation, according to a previously unreleased memo obtained by BuzzFeed News.

    The memo, which was issued Aug. 15, 2017, and obtained through a Freedom of Information Act request, provided a roadmap for how ICE attorneys were to prosecute cases under the Trump administration. It was written by Tracy Short, ICE’s principal legal adviser and head of the attorneys who handle deportation cases in court.

    While immigration lawyers had long reported anecdotally that such changes had taken place in the courtroom, the memo is the first detailed explanation of how government attorneys were told to handle deportation cases and how to implement Trump’s executive order on immigration enforcement issued Jan. 25, 2017.

    “Prosecutorial discretion is an act of administrative leniency, it is not an entitlement,” Short wrote.

    Under the Obama administration, ICE attorneys were encouraged to request the dismissal or indefinite suspension of deportation cases of immigrants who were not serious criminals or national security threats. To do so, the administration directed ICE attorneys to look for qualifying cases and encouraged immigration attorneys to email ICE with requests for “prosecutorial discretion.”

    Obama administration officials believed their approach would focus ICE’s limited resources on those unauthorized immigrants with the worst criminal records, as opposed to those who were largely contributing members of society.

    Short’s memo told attorneys they were no longer required to check the email inbox used to receive requests for leniency from immigration attorneys. Short also wrote that ICE attorneys could consider prosecutorial discretion for immigrants in certain circumstances, such as a relative of a military member, has an obvious claim to status, has an “extraordinary humanitarian factor,” or is an asset to state or federal law enforcement. Even then, ICE attorneys must receive written approval from senior leadership in Washington for such a request.

    Still, attorneys across the country have rarely seen immigrants granted reprieves, regardless of their circumstances, said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association.

    “The revelation of the memo is important because it shows how the ICE trial attorneys were instructed to stop exercising prosecutorial discretion in all but the most extreme circumstances,” said David Leopold, an immigration attorney at Ulmer and Berne in Cleveland. “The memo changed prosecutorial discretion by all but forbidding ICE prosecutors from using their common sense or showing any compassion.”

    Sarah Pierce, a senior policy analyst at the Migration Policy Institute, said the “memo is in line with the broader interior enforcement goal of the administration: Enforce immigration laws against everyone.”

    The memo also directed ICE attorneys to review previously closed cases, instructing them to look for cases that don’t fit the administration’s new immigration enforcement priorities, which include practically all undocumented immigrants, and to prioritize reopening cases in which individuals had a criminal history or evidence of fraud. At the same time, attorneys were told that practically all undocumented immigrants were now priorities for deportation in the court.

    As of August 2018, the government had requested the reactivation of nearly 8,000 deportation cases that had been administratively closed. The previous fiscal year, which included nearly four months of the Obama administration, there were nearly 8,400 such requests. The pace of such requests is nearly double that of the last two years of the Obama administration, when there were 3,551 and 4,847 such requests, respectively. Attorney General Jeff Sessions limited the ability for immigration judges to indefinitely suspend deportation cases in June.

    “This is an unrelenting, unremitting deportation push. From that point of view, it is eye-opening in its scope, trying to make sure that no stone is unturned,” said a government official familiar with the memo who was not authorized to speak about it. “It systematically took any possibility where some independent judgment could be exercised by a government attorney and made it very clear they know what their marching orders are.”

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

    A copy of the memorandum in question accompanies the full article at the above link.

    So, ICE Assistant Chief Counsel will be “going to the mat” — thereby requiring “full” hearings — in almost every one of the 760,000 cases currently on the docket, plus perhaps hundreds of thousands of previously administratively closed cases.

    At the same time, U.S. Immigration Judges are improperly being pressured by Sessions to set three or four merits cases per day, when most experienced judges would have difficulty completing two such cases in a fully professional manner consistent with Due Process.

    Something has to give here. That something is likely to be Due Process for the respondents — the only real purpose of the system in the first place.

    How long will this mockery of justice and parody of a “court system” be allowed to go on? Will Article III Judges be satisfied to be “rubber stamps” on a process that violates the Constitution? Or, will they step in and insist that the Immigration Courts comply with the Constitution — something that scofflaws like Jeff Sessions, Kirstjen Nielsen, and the other Trumpists have no intention of doing?

    Only time will tell! But, history will record and remember what they did!

    PWS

    10-08-18

    JRUBE @ WASHPOST: Misogynists Rule, Propped Up By Their Women!

    https://www.washingtonpost.com/news/opinions/wp/2018/10/07/they-left-no-doubt-what-they-think-of-women/

    Jennifer Rubin writes in the WashPost:

    Sen. Orrin Hatch (R-Utah) barked at female sex-crime victims, “Grow up!” He called Christine Blasey Ford a “pleasing” witness. He shooed women away with a flick of his wrist. Hatch also posted “an uncorroborated account from a Utah man questioning the legitimacy and sexual preferences” of Julie Swetnick, one of Brett M. Kavanaugh’s accusers. The Salt Lake Tribune editorial board raked him over the coals:

    The despicable attack launched by Sen. Orrin Hatch and the Senate Judiciary Committee — more precisely, the Republicans on that committee — on one of the women who has accused Supreme Court nominee Brett Kavanaugh of sexual assault is a textbook example of why more victims do not come forward.

    Worse, it betrays a positively medieval attitude toward all women as sex objects who cannot be believed or taken seriously.

    Not a single Republican spoke up to criticize him. One would think someone would point out that he brought dishonor on himself, his party and the Senate. But clearly Republicans take no umbrage at such conduct.

    Senate Judiciary Committee Chairman Charles E. Grassley(R-Iowa) attempted to excuse the lack of a single Republican woman — ever — on the Judiciary Committee. “It’s a lot of work — maybe they don’t want to do it.”Kavanaugh snapped and sneered at female senators on the Judiciary Committee. Republicans didn’t bat an eye or hold it against him. He was just mad, you see.

    President Trump repeated the calumny that if the attack was “as bad” as Ford said she’d have gone to the police. He declared it was a “scary time” for young men. He openly mocked Ford at a rally to gin up his base’s anger. Republican apologists said he was just explaining the facts. He actually misrepresented her testimony, falsely claiming she couldn’t recall many facts — the neighborhood of the house where she was attacked. William Saletan called out Trump and his defenders: “It’s true that Ford can’t recall important details about place and time. It’s true that she can’t recall how she got to the house or how she left. It’s true that every accused person is entitled to a presumption of innocence. But Trump’s portrayal of Ford’s testimony wasn’t true. It was a pack of lies. And people who defend it, like Lindsey Graham, are liars too.”

    Trump and other Republicans accused sex-crime victims protesting Kavanaugh as protesters paid by George Soros (a Jewish left-wing billionaire whose name is routinely invoked in anti-Semitic attacks). The GOP Senate whip, Sen. John Cornyn (R-Tex.), called the victims a “mob” and echoed the bogus claim that they were paid protesters. They deny victims’ very existence; they are non-persons — props sent by opponents to ruin a man’s life.

    Graham snorted that he’d hear what “the lady has to say” and then vote Kavanaugh in. Senate Majority Leader Mitch McConnell (R-Ky.) said he’d “plow right through” (more like plow over) Ford’s testimony and confirm Kavanaugh. Republicans’ defense of Kavanaugh — that Ford and others were props of a left-wing plot and therefore lacked agency of their own — evidences the party’s attitude toward women.

    You cannot say a party that embraces a deeply misogynistic president who bragged about sexually assaulting women and mocked and taunted a sex-crime victim; accepted a blatantly insufficient investigation of credible sex crimes against women in lieu of a serious one that the White House counsel knew would be disastrous; repeatedly insulted and dismissed sex-crime victims exercising their constitutional rights; has never put a single woman on the Judiciary Committee (and then blames its own female members for being too lazy); and whips up male resentment of female accusers is a party that respects women. Its members resent women. They scorn women. They exclude women. They use women to maintain their grip on power. But they do not respect them.

    What’s worse is that Republicans who would never engage in this cruel and demeaning behavior themselves don’t bat an eye when their party’s leaders do so. Acceptance of Trump’s misogyny — like their rationalization of the president’s overt racism — becomes a necessity for loyal Republicans. If it bothers a Republican, he or she dare not say so. One either agrees or ignores or rationalizes such conduct, or one decide it’s a small price to pay (“it” being the humiliation of women) for tax cuts and judges. It’s just words, you know.

    The Republican Party no longer bothers to conceal its loathing of immigrants, its contempt for a free press, its disdain for the rule of law or its views on women. Indeed, these things now define a party that survives by inflaming white male resentment. Without women to kick around, how would they get their judge on the court or their guys to the polls?

    Women with this ordeal seared into the hippocampus of their brains will vote in November. Women are expected to forget or move on? I don’t think so.

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

    Yup! Need to vote!

    The “Club” is in power because too many non-members failed to vote. And, those young men who DON’T aspire to grow up to be Trump, Sessions, Hatch, Kavanaugh, Graham, Grassley, Steve King, Kobach, or Stephen Miller had better unite with their “non-Club sisters” to vote the Good Old Boys (and their women supporters and enablers) out of office.

    If nothing else, last week shows the futility of demonstrating, public opinion polls, writing op-Ed’s, running commercials, and protesting when you don’t have the votes. Put the energy into winning elections! That’s what the Club does. And, it might be the only thing they are right about.

    PWS

    10-08-19