ADAM SERWER IN THE ATLANTIC: The Trump/Sessions/Miller White Nationalist Policies: It’s All About Cruelty & Hate!

https://www.theatlantic.com/ideas/archive/2018/10/the-cruelty-is-the-point/572104/

Adam Serwer writes  in The Atlantic:

The Museum of African-American History and Culture is in part a catalog of cruelty. Amid all the stories of perseverance, tragedy, and unlikely triumph are the artifacts of inhumanity and barbarism: the child-size slave shackles, the bright red robes of the wizards of the Ku Klux Klan, the recordings of civil-rights protesters being brutalized by police.

The artifacts that persist in my memory, the way a bright flash does when you close your eyes, are the photographs of lynchings. But it’s not the burned, mutilated bodies that stick with me. It’s the faces of the white men in the crowd. There’s the photo of the lynching of Thomas Shipp and Abram Smith in Indiana in 1930, in which a white man can be seen grinning at the camera as he tenderly holds the hand of his wife or girlfriend. There’s the undated photo from Duluth, Minnesota, in which grinning white men stand next to the mutilated, half-naked bodies of two men lashed to a post in the street—one of the white men is straining to get into the picture, his smile cutting from ear to ear. There’s the photo of a crowd of white men huddled behind the smoldering corpse of a man burned to death; one of them is wearing a smart suit, a fedora hat, and a bright smile.

The Trump era is such a whirlwind of cruelty that it can be hard to keep track. This week alone, the news broke that the Trump administration was seeking to ethnically cleanse more than 193,000 American children of immigrants whose temporary protected status had been revoked by the administration, that the Department of Homeland Security had lied about creating a database of children that would make it possible to unite them with the families the Trump administration had arbitrarily destroyed, that the White House was considering a blanket ban on visas for Chinese students, and that it would deny visas to the same-sex partners of foreign officials. At a rally in Mississippi, a crowd of Trump supporters cheered as the president mocked Christine Blasey Ford, the psychology professor who has said that Brett Kavanaugh, whom Trump has nominated to a lifetime appointment on the Supreme Court, attempted to rape her when she was a teenager. “Lock her up!” they shouted.Ford testified to the Senate, utilizing her professional expertise to describe the encounter, that one of the parts of the incident she remembered most was Kavanaugh and his friend Mark Judge laughing at her as Kavanaugh fumbled at her clothing. “Indelible in the hippocampus is the laughter,” Ford said, referring to the part of the brain that processes emotion and memory, “the uproarious laughter between the two, and their having fun at my expense.” And then at Tuesday’s rally, the president made his supporters laugh at her.

Even those who believe that Ford fabricated her account, or was mistaken in its details, can see that the president’s mocking of her testimony renders all sexual-assault survivors collateral damage. Anyone afraid of coming forward, afraid that she would not be believed, can now look to the president to see her fears realized. Once malice is embraced as a virtue, it is impossible to contain.

The cruelty of the Trump administration’s policies, and the ritual rhetorical flaying of his targets before his supporters, are intimately connected. As Lili Loofbourow wrote of the Kavanaugh incident in Slate, adolescent male cruelty toward women is a bonding mechanism, a vehicle for intimacy through contempt. The white men in the lynching photos are smiling not merely because of what they have done, but because they have done it together.

We can hear the spectacle of cruel laughter throughout the Trump era. There were the border-patrol agents cracking up at the crying immigrant childrenseparated from their families, and the Trump adviser who delighted white supremacists when he mocked a child with Down syndrome who was separated from her mother. There were the police who laughed uproariously when the president encouraged them to abuse suspects, and the Fox News hosts mocking a survivor of the Pulse Nightclub massacre (and in the process inundating him with threats), the survivors of sexual assault protesting to Senator Jeff Flake, the women who said the president had sexually assaulted them, and the teen survivors of the Parkland school shooting. There was the president mocking Puerto Rican accents shortly after thousands were killed and tens of thousands displaced by Hurricane Maria, the black athletes protesting unjustified killings by the police, the women of the #MeToomovement who have come forward with stories of sexual abuse, and the disabled reporter whose crime was reporting on Trump truthfully. It is not just that the perpetrators of this cruelty enjoy it; it is that they enjoy it with one another. Their shared laughter at the suffering of others is an adhesive that binds them to one another, and to Trump.

Taking joy in that suffering is more human than most would like to admit. Somewhere on the wide spectrum between adolescent teasing and the smiling white men in the lynching photographs are the Trump supporters whose community is built by rejoicing in the anguish of those they see as unlike them, who have found in their shared cruelty an answer to the loneliness and atomization of modern life.

The laughter undergirds the daily spectacle of insincerity, as the president and his aides pledge fealty to bedrock democratic principles they have no intention of respecting. The president who demanded the execution of five black and Latino teenagers for a crime they didn’t commit decrying “false accusations,” when his Supreme Court nominee stands accused; his supporters who fancy themselves champions of free speech meet references to Hillary Clinton or a woman whose only crime was coming forward to offer her own story of abuse with screams of “Lock her up!” The political movement that elected a president who wanted to ban immigration by adherents of an entire religion, who encourages police to brutalize suspects, and who has destroyed thousands of immigrant families for violations of the law less serious than those of which he and his coterie stand accused, now laments the state of due process.

This isn’t incoherent. It reflects a clear principle: Only the president and his allies, his supporters, and their anointed are entitled to the rights and protections of the law, and if necessary, immunity from it. The rest of us are entitled only to cruelty, by their whim. This is how the powerful have ever kept the powerless divided and in their place, and enriched themselves in the process.

A blockbuster New York Times investigation on Tuesday reported that President Trump’s wealth was largely inherited through fraudulent schemes, that he became a millionaire while still a child, and that his fortune persists in spite of his fumbling entrepreneurship, not because of it. The stories are not unconnected. The president and his advisers have sought to enrich themselves at taxpayer expense; they have attempted to corrupt federal law-enforcement agencies to protect themselves and their cohorts, and they have exploited the nation’s darkest impulses in the pursuit of profit. But their ability to get away with this fraud is tied to cruelty.

Trump’s only true skill is the con; his only fundamental belief is that the United States is the birthright of straight, white, Christian men, and his only real, authentic pleasure is in cruelty. It is that cruelty, and the delight it brings them, that binds his most ardent supporters to him, in shared scorn for those they hate and fear: immigrants, black voters, feminists, and treasonous white men who empathize with any of those who would steal their birthright. The president’s ability to execute that cruelty through word and deed makes them euphoric. It makes them feel good, it makes them feel proud, it makes them feel happy, it makes them feel united. And as long as he makes them feel that way, they will let him get away with anything, no matter what it costs them.

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I could see it in the mindless clapping, revolting laughter, and sickening glee in the eyes of the ugly, overwhelmingly White crowd (many of them women, although a few of the women didn’t seem amused) behind Trump as he denigrated and mocked Christine Blasey Ford this week.

Also in the angry, distorted snarl of Sen. Lindsey Graham as he absurdly called the Kavanaugh hearings “the most unethical” performance (LG, my man, where were you when Mitch, you, and your colleagues totally stiffed a much better qualified Obama appointment, , without even giving him the courtesy of a hearing?).

Also in the incredibly arrogant, partisan, rude, condescending, and openly misogynistic way that Kavanaugh treated Senator Amy Klobuchar’s totally reasonable inquiry. Would Senator Susan Collins still have voted for “BKavs” if he had treated her that way? I doubt it! But, I guess her women colleagues don’t matter. And, it appears that “Chairman Chuckie” Grassley doesn’t really need or want any GOP women on his “Old Boys Club” (a/k/a Senate Judiciary Committee.) Only Democrat women can hack the stress and workload of serving on a daily basis with the GOP misogynists.

What do you call a party whose “base” glories in the pain and suffering of others?  The 21st Century GOP!

It’s an existential threat to the future of our country! If decent folks don’t start using the ballot box to remove the GOP from power at every level, it might be too late for the majority of us to take our country back from the misguided minority who have taken power! Get out the vote in November!

PWS

10-07-18

 

 

GONZO’S WORLD: SCOFFLAW SCHEME STIFFING SANCTUARY STATES SOUNDLY SLAMMED!

https://thehill.com/regulation/court-battles/410149-california-judge-rules-against-sessionss-effort-to-hit-sanctuary

writes in The Hill:

A federal district court judge has ruled Attorney General Jeff Sessions’ conditions on grant funding to force so-called sanctuary cities to cooperate with immigration enforcement efforts as unconstitutional

Judge William Orrick, of the U.S. District Court for the Northern District of California, sided with the state of California and city of San Francisco in their lawsuit challenging the requirements in granting their request for summary judgment Friday.

Orrick’s decision was in agreement with every court that has looked at these issues.

The judge said that the challenged conditions violate the separation of power and that the information-sharing law is unconstitutional.

Orrick said he is following the lead of the district court in a similar challenge brought by the city of Chicago and is issuing a nationwide injunction to block the Justice Department from enforcing its requirement and the law. But he said he is putting that stay on hold until the Ninth Circuit addresses the issue on appeal.

“Today’s ruling is a victory in our fight to protect the people of California,” California Attorney General Xavier Becerra said in a statement Friday afternoon.

“We will continue to stand up to the Trump administration’s attempts to force our law enforcement into changing its policies and practices in ways that that would make us less safe.”

Becerra’s office noted that the ruling marks the attorney general’s twenty-second legal victory against the Trump administration.

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When will he ever learn, when will he ever learn? And, how much of our tax money and Federal Court time will he waste with this counterproductive, semi-frivolous, and vindictive litigation.

Given Gonzo’s record of disregarding the law and mocking common sense, California might “top the century mark” in legal wins before the end of this Administration!

PWS

10-07-18

 

BIA THWARTS CAL’S ATTEMPT TO END RUN REMOVABILITY FOR MINOR OFFENDERS – Matter of VELASQUEZ-RIOS, 27 I&N Dec. 470 (BIA 2018)

https://www.justice.gov/eoir/page/file/1098611/download

Matter of VELASQUEZ-RIOS, 27 I&N Dec. 470 (BIA 2018)

BIA HEADNOTE:

The amendment to section 18.5 of the California Penal Code, which retroactively lowered the maximum possible sentence that could have been imposed for an alien’s State offense from 365 days to 364 days, does not affect the applicability of section 237(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i)(II) (2012), to a past conviction for a crime involving moral turpitude “for which a sentence of one year or longer may be imposed.”

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

OPINION BY: Judge John Guendelsberger

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Criminal lawyers take note:  This Respondent received a sentence of only 12 days in jail! A great deal, right? Not if you look at the immigration consequences! Also, given the change of removability, he would be subject to “mandatory detention.” Therefore, I’m sure that he spent far more than 12 days in ICE custody awaiting this unfavorable result.

PWS

10-07-18

 

 

RAFAEL BERNAL IN THE HILL: Federal Courts Are Homing In On The Racism, Dishonesty, & Lawlessness Driving Many Of Trump, Nielsen, & Sessions’s Cruelest & Dumbest Immigration Policies!

https://thehill.com/latino/410012-trump-immigration-measures-struggle-in-the-courts

Bernal writes:

A federal judge’s ruling blocking a Trump administration order to end immigration benefits for nearly 300,000 foreign nationals is the latest in a series of judicial setbacks for the Trump administration’s immigration policies.

Federal District Judge Edward Chen late Wednesday blocked the Department of Homeland Security’s (DHS) order to end Temporary Protected Status (TPS) that allows citizens of Sudan, El Salvador, Haiti and Nicaragua to live and work in the United States, raising hopes for activists who have fought to make the program permanent.

The preliminary injunction granted by Chen, an appointee of President Obama, follows a trend of court reversals that have slowed the administration’s proposed overhaul of American immigration laws.

The administration’s first judicial setbacks on immigration came weeks into Trump’s presidency, as a New York court stopped in January of 2017 the application of the first version of a travel ban that blocked immigrants and visitors from seven majority-Muslim countries.

After a series of court battles, a third version of the travel ban — which includes non-Muslim countries North Korea and Venezuela — was eventually upheld by the Supreme Court in June of this year.

Trump’s termination of the Deferred Action for Childhood Arrival (DACA) program is still up in the air.

Because of court action, DHS is still receiving DACA renewal applications, which under Trump’s original order should have ended in October of 2017.

Both the travel ban and termination of DACA tied into Trump’s campaign promises on immigration, but TPS is a relatively obscure program that had been more or less summarily renewed by both Republican and Democratic administrations.

Under TPS, nationals of countries that undergo natural or man-made disasters are allowed to live and work in the United States until their home countries recover.

Chen’s decision only blocks the DHS orders while the lawsuit is in place, but he hinted in his decision that he’s unlikely to change his mind in the final ruling.

The decision came as a surprise, as TPS statute gives a wide berth to the secretary of Homeland Security to determine who receives its benefits.

DHS declined to comment on the case, but Department of Justice spokesman Devin O’Malley panned Chan’s decision, saying it “usurps the role of the executive branch in our constitutional order.”

Emi Maclean, an attorney with the National Day Laborer Organizing Network (NDLON), called it “an extraordinary decision.”

“This is the first time in the history of the TPS statute, a statute from 1990, that there has been a court order halt for any TPS determination,” said Maclean.

“It’s hugely important in what it says about the Trump administration making policies in the arena of immigration, and it’s obviously important for hundreds of thousands of people and their families and communities,” she added.

In his decision, Chen referred to the “animus” behind the administration’s TPS strategy, echoing district and appeals courts decisions on the travel ban, which used Trump’s campaign rhetoric as evidence of discriminatory intent.

Chan said he found “evidence that this may have been done in order to implement and justify a pre-ordained result desired by the White House.”

“Plaintiffs have also raised serious questions whether the actions taken by the Acting Secretary or Secretary was influenced by the White House and based on animus against non-white, non-European immigrants in violation of Equal Protection guaranteed by the Constitution,” he added.

Justice took a different view.

“The Justice Department completely rejects the notion that the White House or the Department of Homeland Security did anything improper. We will continue to fight for the integrity of our immigration laws and our national security,” said O’Malley.

Although the decision is only a temporary setback for the administration, TPS activists — who want to turn their TPS benefits into permanent residency permits — say they’re encouraged to raise the political profile of the program and its beneficiaries.

“While this decision helps us to at least breathe and be comfortable that our friends with TPS are not going to lose immigration status, it also motivates us to continue organizing and hoping that Congress will understand the importance of this,” Jose Palma, the Massachusetts coordinator for the National TPS Alliance, said in a call with reporters.

Immigration causes have been front and center in U.S. politics during the Trump administration.

But TPS has received relatively little attention.

“We were doing some lobbying and some Congresspeople didn’t know what TPS was,” said Palma. “We were asking for support for TPS and they were asking, ‘What is TPS? We don’t know,’”

And while TPS recipients had been included in previous attempts at comprehensive immigration reform, most bills that got traction in 2018 focused solely on Dreamers.

The exception was a bipartisan bill proposed by Sens. Lindsey Graham (R-S.C.) and Dick Durbin (D-Ill.), which would have pulled immigrant visas from the diversity visa program to grant permanent residency to certain TPS holders, including some from Haiti.

That bill was shot down in January by Trump at a White House meeting with Graham and Durbin, where he allegedly called Haiti and some African countries “shithole countries.”

Still, TPS advocates say they’ve been able to raise awareness for the program since Haiti’s designation was terminated in November.

Palma pointed to seven legislative proposals in the current Congress that would either extend TPS benefits or give current beneficiaries permanent residency.

Another proposal from Rep. Mo Brooks (R-Ala.) would transfer the responsibility of designation from DHS to Congress and restrict access of undocumented immigrants to TPS.

Palma added that the ultimate goal of many TPS recipients, particularly those who have been in the United States for long periods of time, is to achieve permanent residency.

“If we’re going to take the future of this campaign based on what we have achieved from there to now, I feel confident that it’s not going to be easy but it’s something we can definitely achieve,” he said.

Chen’s order covers only El Salvador, Haiti, Nicaragua and Sudan, which account for a majority of TPS holders.

The most numerically significant TPS countries not included in the lawsuit are Honduras, which has about 57,000 citizens in the program, and Nepal, which has about 9,000. They are not included because their terminations had not been announced at the time the lawsuit was filed.

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What is missing here is decisive, bipartisan Congressional action to resolve some of these issues in a way that the Trump White Nationalists can’t easily undo. Barring that, various aspects  of the White Nationalist anti-immigrant agenda will continue to “bop along” through the lower Federal Courts: sometimes winning, but often losing.

While the GOP right is obviously feeling a sense of invincibility with the likely advent of Justice Kavanaugh, Trump can’t necessarily count on the Supremes to bail him out by intervening in controversial immigration cases. It would be better for the Court, and particularly for Chief Justice Roberts, presumptive Justice Kavanaugh, and the other “GOP Justices” to take on some less controversial issues — ones where they might actually achieve unanimity or near-unanimity first, and save the inevitable, partisan “5-4s” for a later date. That might mean that he fate of many of Trump’s most controversial immigration schemes could remain in the hands of the lower Federal Courts until sometime after October 2019.

Of course, that isn’t necessarily good news for those opposing the Trump agenda: Trump is quickly turning the lower Federal Courts into bastions of right-wing doctrinaire jurisprudence, just as the Heritage Foundation, the Federalist Society, and other right-leaning legal groups have mapped it out.

PWS

10-05-18

 

 

 

READ NOLAN ON FAMILY DETENTION — Congress Should Solve It!

http://discuss.ilw.com/blogs/immigrationlawblogs/389151-does-a-mandatory-detention-provision-prohibit-the-release-of-alien-families-in-expedited-removal-proceedings-by-nolan-rappaport

 

Family Pictures

Nolan writes:

President Donald Trump is being criticized for detaining alien families, but President Barack Obama did the same thing in 2014, when there was a rapid increase in the number of families crossing the border illegally.

Obama’s DHS Secretary, Jeh Johnson, explained the decision this way: “Frankly, we want to send a message that our border is not open to illegal migration, and if you come here, you should not expect to simply be released.”

Opponents of Obama’s family detention policy claimed that it violated the 1997 Flores Settlement Agreement, which established a nationwide policy for the detention, release, and treatment of unaccompanied alien minors.

In 1962, a U.S. Court of Appeals acknowledged that the Flores litigation focused initially on the problems facing unaccompanied minors, but it heldthat the underlying policies applied equally to alien minors who are with a parent.

This created a no-win situation in expedited removal proceedings.

Alien families that are apprehended at or near the border after making an illegal entry are placed in expedited removal proceedings. If they want asylum, they are given an opportunity to establish that they have a credible fear of persecution. If they succeed, they are placed in regular removal proceedings for an asylum hearing before an immigration judge. Otherwise, they are deported without further proceedings.

Detention is mandatory in expedited removal proceedings, “Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.”

The Board of Immigration Appeals held that the mandatory detention period ends when a credible fear has been established, but Attorney General Jeff Sessions recently directed that decision to himself for a determination of whether it should be overruled.

DHS, however, has the discretion to parole an alien in expedited removal proceedings for “urgent humanitarian reasons” or “significant public benefit.”

. . . .

Congress is aware of these problems.

A Senate Committee recently held a hearing on the implications of extending the Settlement Agreement to children who are with a parent. According to Committee Chairman Ron Johnson, (R-WI), “it is well past time for Congress to act.”

The most promising solution may be to amend the mandatory detention provision and provide funding for the development of effective alternatives to detention.

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

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Go on over to ILW.Com at the above link to read Nolan’s full article.
Nolan reminds us that this, and a number of other policies that Dems now harshly criticize, actually originated during the Obama Administration. I find it interesting to hear Jeh Johnson and others now “back pedal” from the full implications of their questionable policy decisions.
I also agree with Nolan that it would be better if Congress would solve this problem in a bipartisan manner rather than leaving it to the Federal Courts.
PWS
10-05-18

JUDICIAL CATASTROPHE: By Any Sane Standard, The U.S. Immigration Court In Baltimore Is A Total Administrative Disaster – But, That Hasn’t Stopped White Nationalist AG Jeff Sessions From Demanding That The Already Overworked & Demoralized Judges Forget About Fundamental Fairness & “Just Pedal Faster!” — “All this is going to be litigated at taxpayers’ expense, but it’s all in the effort to fulfill a political promise,” Says Retired Judge John Gossart, Jr.!

https://news.vice.com/en_us/article/xw94ea/leaked-report-shows-the-utter-dysfunction-of-baltimores-immigration-court

Ani Ucar reports for Vice News in an article featuring quotes from “Our Gang” members retired U.S. Immigration Judges Jeffrey Chase and John Gossart, as well as current (soon to be retired, perhaps?) Judge Denise Slavin:

By Ani Ucar Oct 3, 2018

Overwhelmed immigration courts are a national problem, and the growing backlog means an average immigration case is waiting in court for a record 717 days, as of 2018, according to Syracuse University.

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.

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VICE News first obtained a heavily redacted version of the report through a records request but later obtained an uncensored version of the review, which paints a portrait of dysfunction at one of the busiest immigration courts in the country.

Completed in 2018 and covering the years 2014 to 2017, the review shows a department so understaffed that basic functions such as address changes or orders to appear in court were not processed or sent out as caseloads piled up. Failing to process key documents could deny migrants the opportunity to be heard in court. “Poor management of this core process leads to additional work for the Court and can result in respondents being ordered removed in absentia through no fault of their own,” the report says.

Read: Being a kid is a “negative factor” under Trump’s new immigration rule

As the court’s caseload mounted, the number of sitting judges stayed the same, fluctuating between four and five. As a point of reference, Chicago’s immigration court, which has a comparable caseload, has twice the number of sitting judges.

NO HABLA ESPAÑOL

The court’s office had no Spanish speakers on staff, even though 84 percent of its cases involved a respondent who only spoke Spanish. The equipment in the office was dated and often nonfunctional. “The two existing HP copiers in the Baltimore Court have had numerous issues and there have been literally days when the Court is unable to use either copier,” the report said.

A lack of administrative staff meant boxes with thousands of documents were left sitting on the floor or on top of file cabinets, and the report describes “hallway space filled with files, file carts, printers and the like.”

One judge currently on the court told VICE News that as cases and administrative work piles up, the court may not be able to provide due process.

“I’m happy to be retirement-eligible, and quite frankly a lot of us are,” said Baltimore Immigration Judge Denise N. Slavin, who spoke to VICE News in her capacity as president emeritus of the National Association of Immigration Judges. “I feel like if I get pushed to a point to violate due process, or I’m being disciplined for not doing something that I thought would violate due process, I would be able to leave.”

Read: This toddler got sick in ICE detention. Two months later she was dead

As bad as it’s been in the Baltimore Immigration Court, it’s about to get worse. On Monday, a new policy backed by Attorney General Jeff Sessions went into effect mandating that the nation’s roughly 330 immigration judges process at least 700 cases per year. The Department of Justice has said it will hire 100new immigration judges this calendar year to help with the backlog, but current and former immigration judges say more judges without commensurate support staff will only add to the problem.

The confidential report on the Baltimore Immigration Office was performed by a court administrator at the request of the Office of the Chief Immigration Judge, a branch of the DOJ. Unlike state or federal courts, immigration courts are part of the Department of Justice, and therefore part of the executive branch of government.

SURGING CASES

The review took place in November and December of last year, and focused on the time period from 2014-2017, when the Baltimore Immigration Court caseload nearly quadrupled.

Though the caseload was rising during that period, the court was shedding staff: They lost seven full-time permanent employees. “The shortage of staff in the Baltimore Court was so severe the Court did not have enough employees to manage the Court’s core processes,” the report says.

The report coincides with a 2014 surge of crossings at the U.S.-Mexico border. Baltimore’s caseload began to grow rapidly afterward. Despite having completed 33.11 percent more cases from 2015 to 2016 combined, the court’s efforts were not enough to keep pace with the mounting backlog. At the end of 2014, the court had 8,331 pending cases, and by December 2017 the pending caseload jumped to 29,184, according to the Transactional Records Access Clearinghouse database, or TRAC, at Syracuse University.

“It feels like you are being buried alive”

Backlogs in the immigration courts have historically been impacted by shifting migration patterns, immigration policy changes, and hiring freezes on judges and staff. But since President Trump took office in 2017, the number of pending cases in immigration courts has increased 41 percent, bringing the total to 764,561 as of August 31, 2018, according to TRAC.

“It feels like you are being buried alive,” said Los Angeles Immigration Judge Ashley Tabaddor, speaking as president of the National Association of Immigration Judges. “It’s like this tsunami of cases that just never goes away, and instead of [us] being helped, the department is just adding more pressure.”

QUOTA SYSTEM

Sessions has said the quota system will help cut down the record-high backlog, but immigration judges, both current and retired, have pushed back, saying the standard would threaten due process and judicial independence.

“There’s an overabundance of attention on efficiency and there seems to be little to no concern from higher-ups on getting the decisions right,” said retired New York City Immigration Judge Jeffrey S. Chase.

Read: Jeff Sessions wants to remove immigration judges who aren’t deporting people fast enough

Baltimore’s immigration court is relatively small, but it has been operating with a caseload similar to that of a large immigration court. While more populous states have a number of immigration courts—there are seven courts in California, for instance, and six in New York—the Baltimore facility is the only one in Maryland.

The report describes at length how staff failed to maintain order as paperwork grew. “As of early December 2017, there were approximately 700-1,000 additional filings sitting in the Court that are made up of EOIR-28s, EOIR-33s, returned notices, general correspondence and motions that have not been processed,” the report says. (An EOIR-28 is a notice of appearance in court. An EOIR-33 is a change-of-address form.)

“How the Baltimore court manages motions still needs improvement. Poor management of this core responsibility leads to additional work for the Court, and it sends the message to the private bar and to DHS that the Court is not organized and cannot be relied on,” the report said.

The Department of Justice declined to comment on the report.

At the time of the review, the Baltimore court had 24,142 pending cases in which the respondent spoke Spanish but no Spanish-speakers on staff. At one point, the staff resorted to pulling two judges off the bench to help the front desk with translation needs, said one EOIR employee.

Other times they had to enlist the help of someone in the waiting room to interpret for people. “Sometimes they were not getting the best information or even accurate information about their case,” said the EOIR employee.

“Recruitment of a Spanish Interpreter should be a priority,” the report says, but that position has yet to be filled.

All these issues are expected to worsen with the rollout of the quota system. “We’ll have preliminary success with getting a large number of cases out and temporarily reduce the backlog, but ultimately a large number of those cases will come back on appeal, thus making the backlog even worse,” Slavin said.

At the end of the day, the taxpayer will be on the hook for the cost of the immigration policy, said retired Baltimore immigration judge F. Gossart Jr. “All this is going to be litigated at taxpayers’ expense, but it’s all in the effort to fulfill a political promise.”

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Wow! An Attorney General who consistently shows bias and maliciousness combined with incompetence. What a horrible combination! And throw into the mix a complete abdication of oversight functions by the GOP-controlled Congress.
Sessions is pouring taxpayer money down the drain in an effort to actually make the system more dysfunctional and less fair. It’s the type of fraudulent, wasteful, and abusive conduct that in normal times might result in criminal prosecutions and jail sentences. We also know that he is promoting similar dysfunction in the criminal justice system with his inane and ineffective “zero tolerance” policy that has also made him the nation’s most notorious un-prosecuted child abuser. Yet, Sessions walks free, while the victims of his misconduct, many vulnerable children and women merely seeking the justice to which they are entitled, rot in his “New American Gulag” and/or suffer grossly substandard “justice” in a totally out of control charade of a “court system” where Due Process is mocked every day.
When the only thing that keeps you going is the knowledge that you can retire any day, you know that your job is really screwed up! (Hint to the un-retired but eligible: The very best time to retire is before you get to the foregoing point.)
If this isn’t your vision of America, then take Willie Nelson’s advice and “Vote ‘Em Out.”
PWS
10-04-18

TRUMP SCOFFLAWS BLOCKED AGAIN: US Judge Temporarily Enjoins End Of TPS Programs!

https://www.cnn.com/2018/10/03/politics/tps-preliminary-injunction/index.html

(CNN)Hundreds of thousands of immigrants who feared they could soon be facing deportation got a reprieve Wednesday, when a federal judge in California temporarily blocked one of the Trump administration’s major immigration moves.

US District Judge Edward Chen granted a preliminary injunction stopping the government from terminating temporary protected status, or TPS, for immigrants from Sudan, El Salvador, Haiti and Nicaragua.
Chen ruled that the government must maintain TPS, and employment authorizations for TPS beneficiaries from those countries, while a lawsuit challenging the government’s decision to eliminate their protections continues.
TPS protects migrants in the United States from countries that have been hit by dire conditions, such as epidemics, war or natural disaster. Previous administrations had opted to extend the protections for most of the countries involved every few years when they came up for review, but the Trump administration has moved toward ending protections for the majority of immigrants under the program, arguing that the initial conditions that necessitated them are no longer present.
The judge’s decision comes a week after a hearing in the case. It goes into effect immediately and is particularly welcome news for TPS recipients from Sudan, who were less than a month away from losing their protections.
“I’m still trying to wrap my mind around it,” said Salma Ahmed of Chicago.
The 21-year-old, who was born in Sudan and lived in the United States since she was 2, attended last week’s court hearing in San Francisco and was heartened to hear the judge recognize the urgency of the situation she and many others face.
“My hopes just got higher and higher,” she told CNN Wednesday night. “I wasn’t expecting it right now, but this is good.”
Developing story – more to come

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Information obtained under the FOIA had previously disclosed that nobody recommended or wanted the termination of these grants of TPS except a hard core of White Nationalist restrictionists in the Trump Administration. As has been reported elsewhere, they suppressed and mischaracterized  evidence — all of which supported a continuation of TPS — to  terminate these important programs to achieve a predetermined racially-driven, restrictionist agenda.

The Trump Administration is continually occupying the Federal Courts with unnecessary litigation that a responsible Administration would avoid, for the good of the country. As you might remember, I predicted early on that the Trump Administration’s often lawless and otherwise largely imprudent litigation positions would mean “full employment for lawyers” — both inside and outside Government —  if nothing else.

PWS

10-03-18

“A new and dark era as Immigration Judges,” Says Judge A. Ashley Tabaddor, NAIJ President!

Dear Colleagues,

October 1st marked a new and dark era as Immigration Judges.  The Agency is now subjecting us to quotas and deadlines as part of our individual performance evaluations, something that is inherently in conflict with our oath of office(which is the very reason why Congress explicitly excluded ANY individual performance measures for Administrative Law Judges).   NAIJ has largely concluded the bargaining with the Agency on “impact and implementation” of these quotas and deadlines and continues to express (to the Agency and the public) our strenuous disagreement with the concept of quotas and deadlines as a matter of principle.  However, to the extent that we remain a part of the Department of Justice and are treated as DOJ attorneys (in spite of being judges in our duties and responsibilities), our legal recourse of action is confined to labor laws, which are designed for traditional labor/management relationships and do not deal with issues of judicial independence.  Thus, unless and until the Agency takes an adverse action against a particular judge (or Congress steps in with the durable solution of removing the Immigration Court from the Justice Department), we cannot file any grievance or complaints (including the suggestion of several of our judges to file for intentional infliction of emotional distress, which appears to be prohibited by the Federal Torts Claims Act). Thus, we have spent many hours in the past months in bargaining and informal discussions to minimize the impact of this ill-conceived program.  We have been able to help craft more favorable interpretations of what will satisfy the metrics, improved the content and design of the Dashboard to make it more user friendly, and been able to point out shortcomings and flaws which we still seek to improve or eliminate.  The MOU you will see shortly has been negotiated as an adjunct to Article 22 of the Collective Bargaining Agreement which provides protections for judges in the performance evaluation process.  We entered into the MOU in the hopes of improving the position of judges by clarifying that the quotas and deadlines do not stand alone, but must be read in conjunction with specific consideration of each judge’s docket and consistent with Article 22.3.h.  We expect the MOU will help provide judges with a measure of protection and help reconcile the quotas and deadlines with the individual demands of our individual dockets and courts.  Additionally, the MOU provides for a continuing forum for the NAIJ to raise concerns with the Agency about the operation of the Dashboard or application of performance measures, both on a general level and on behalf of any individual judge.  So your continued feedback to NAIJ is a critical part of this process.

Meanwhile I cannot emphasize enough that your oath of office should be your guiding principle throughout these challenging times.  As I have said many times before, so long as you put in an honest day’s work and stay true to your oath of office, we will stand by you 100% of the time.   “Due process” is the beginning and the end of the conversation.  Period. Full Stop.

 

Thank you for those of you who have been sharing with us your experiences with the Dashboard and your ACIJs regarding the CBA Article 22.3.h.  Please keep them coming as we want to make sure that any problematic patterns or practices of the Agency are noted and resolved early.

 

We also understand that many of you are seeking guidance on how to best navigate this new system.  We do have some suggestions for you which we plan to share in our upcoming Q&A sessions on the implementation of the Quotas and Deadlines.  I have included a couple of attachments that may also be of help to you in identifying the data entry error or track the 22.3.h factors that your ACIJs should be considering.  So please mark your calendars, and plan on joining us for at least one of the sessions.

 

Wednesday, October 10th 8:00 a.m. PT, 9:00 a.m. MT, 10:00 a.m. CT, 11:00 a.m. ET

Wednesday, October 10th 9:00 a.m. PT, 10:00 a.m. MT, 11:00 a.m. CT, 12:00 p.m. ET

Wednesday, October 10th, 10:00 a.m. PT, 11:00 a.m. MT, noon CT, 1:00 p.m. ET

Thursday, October 11th, 11:00 a.m. PT, noon MT, 1:00 p.m. CT, 2:00 p.m. ET

Thursday, October 11th, noon PT, 1:00 p.m. MT, 2:00 p.m. CT, 3:00 p.m. ET

 

The call-in information for each of the scheduled sessions is as follows:   (605) 475-4001 & passcode: 765103#

 

If you have any questions in advance that you would like for us to address during a meeting, feel free to forward it to my attention.

Thank you for all of your hard work.

 

Ashley

 

The Honorable A. Ashley Tabaddor, President

National Association of Immigration Judges

606 S. Olive St., 15th floor

www.naij-usa.org

213-534-4491 (direct office line)

BEST E-MAIL: ashleytabaddor@gmail.com

 

DISCLAIMER:  The author is the President of the National Association of Immigration Judges.  The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review.   The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.

 

 

P.S. Please let your fellow NAIJ members know about these call-in session.  Should you hear of any NAIJ member who may not have received this email, please let me knowasap and feel free to forward to them as well. Thank you.

 

From: Ortiz-Ang, Susana (EOIR)
Sent: Monday, October 01, 2018 3:07 PM
To: All of Judges (EOIR) <All_of_Judges@EOIR.USDOJ.GOV>
Cc: Keller, Mary Beth (EOIR) <MaryBeth.Keller@EOIR.USDOJ.GOV>; Wilson, Donna L. (EOIR) <Donna.Wilson@EOIR.USDOJ.GOV>
Subject: New Performance Measures (On Behalf of Mary Beth Keller, Chief Immigration Judge)

 

Judges,

 

Please see the below and attached.

Today, the new performance measures, as incorporated in Element 3 of your Performance Work Plan, become effective. The new Element 3 is attached to this e-mail and will be appended to each of your PWPs. The implementation of these new performance measures is part of a larger effort to make changes across the Agency to better enable us to meet our mission, to fairly and expeditiously adjudicate immigration cases.  You are and always have been a dedicated and professional corps, with the competence and integrity to render decisions that are both “timely and impartial,” as required by the regulations. Historically, IJs have been held accountable in performance Element 3 to make timely rulings and decisions as well as to manage calendars efficiently. These measures simply define these goals more specifically in the present day.

I wanted to emphasize a few important points that you also may have heard from your ACIJ during your court meetings:

 

-Decisions should not be made on individual matters based solely on the performance measures. We remain committed to ensuring due process in each case.

 

– I hope that each of you has taken an opportunity to review the IJ Performance Data Dashboard (“Dashboard”), which is linked to the OCIJ intranet page under “Quick Links.” Please keep in mind that the Dashboard is not your performance rating. It displays data from CASE as it relates to your progress towards meeting the established goals and benchmarks in Element 3 of the PWP.  The new measures apply to your performance for the second year of this cycle, from Oct. 1, 2018 to September 30, 2019.   Your overall performance rating will be determined at the end of the two-year rating cycle (ending September 30, 2019), considering your performance in all three elements of the PWP.

 

– The Dashboard is one day behind. Therefore today it shows data as of September 30, 2018. Tomorrow, it will “zero out,” and show data as of October 1. As of tomorrow, only actions you take from October 1 forward should appear on the Dashboard.

 

– In addition to the Definitions document that I circulated on September 10 (and attached again here), with the input of NAIJ, we have developed a Frequently Asked Questions (“FAQ”) document, which I have attached here as well. We continue to tweak the data captured in the Dashboard to ensure that it accurately reflects the Definitions document and the FAQ document. We encourage you to bring data issues to the attention of your ACIJ.

 

– Please carefully review not only the new PWP Element 3, but also Article 22 of the Collective Bargaining Agreement between the Agency and NAIJ. In particular, in Article 22.3.h., the Agency has agreed to take into account a number of factors that may affect an IJ’s ability to meet the performance standards, including factors not in control of the IJ.

 

– We have concluded our discussions with NAIJ, and in the near future, we will publish on the intranet the Memorandum of Understanding that both parties agreed to at the conclusion of bargaining. Please review this document carefully when it becomes available.

 

– We welcome your input throughout the year. We want to hear about the circumstances you feel are hindering your efforts to reach the goals and benchmarks. We also want to hear your suggestions for making the courts and our processes more efficient, and more generally how the courts can better meet our mission.

 

–  If there is something systemic or frequently recurring that you believe is interfering with your ability to meet the measures, please raise your concern with your ACIJ.

 

– Please be patient, especially during the rollout and at the end of the first quarter, when numbers are likely to be low due to holidays and leave.

Thank you.

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

So, Chief Immigration Judge Marybeth Keller says decisions shouldn’t be made based “solely on the performance measures.” In other words, performance measures can be a basis for decisions so long as the IJ doesn’t identify them as the “sole” basis.

There would be no need for “performance measures” at all unless those imposing them intended that they influence or control results. What kind of “performance measure” isn’t geared at influencing or shaping the “end product” of the “performance.” Or, perhaps the theory of DOJ/EOIR management is that IJs as a group are a bunch of lazy work shirkers who won’t put in a full day’s effort unless watched and threatened at all times with sophomoric “big brother type performance dashboards.”

Maybe that is the purpose of the “IJ Performance Data Dashboard.” This “Dashboard” is a remarkable achievement for an agency that still hasn’t been able to roll out a finalized version of an e-filing system. Clearly it’s a matter of “priorities;” fair adjudication and service to the public obviously aren’t among them!

The purpose of the Dashboard is appparently to insure that the stress levels build and that “judges” remain focused on achieving their “performance goals” (and hence keeping their jobs) rather than on the merits or justice in a particular case.  Indeed, in a “real” court system judges would be encouraged to focus solely on providing fair and impartial adjudications in accordance with Due Process and the technology would be devoted exclusively to that end. “Production data,” while perhaps interesting from an intellectual or self-evaluation standpoint, actually has little or nothing to do with justice in a particular case.

Everyone who loses a case in this amazingly depressing “kangaroo court” system should file a petition for review citing the inherent Due Process flaw in having a “judge” who can’t possibly function as an “impartial” adjudicator as required both by the Constitution and by DOJ regulations. Maybe at some point the Article IIIs will fully understand the judicial farce in which they are complicit and act accordingly.

PWS

10-03-18

NY TIMES EXPOSES TRUMP AS LIFETIME GRIFTER!

https://www.cnn.com/2018/10/02/opinions/trump-family-lies-expose-fraud-dantonio/index.html

Author Michael D’Antonio writes on CNN:

Michael D’Antonio is author of the book “Never Enough: Donald Trump and the Pursuit of Success” (St. Martin’s Press). The opinions expressed in this commentary are his. View more opinion articles on CNN.

(CNN)Remember how then-candidate Donald Trump talked about how the “system is rigged”? He really knew what he was talking about.

In breathtaking detail and with exacting precision, The New York Times has confirmed that for much of his life, though he claimed to be a brilliant businessman, Trump was benefiting from a rigged system, which his family manipulated to transfer enormous wealth from his father to him.
This truth, long suspected by those who have peered into Trump’s finances, included questionable and potentially fraudulent practices that were used so the Trump clan could avoid paying the kind of taxes ordinary people pay every day.
Trump’s lawyer vehemently denies the allegations against his client, telling the Times they are “100% false, and highly defamatory.”
And yet, the Times story is quite persuasive. According to the Times, by age 3, Trump was receiving $200,000 per year in today’s dollars from his father’s operations. By 8, he was a millionaire. And his wealth only grew from there.p
Talk about rigged.
Overall, the picture the Times paints comports with much that could be surmised about the family over the years. By the 1960s, his father, Fred, was one of the wealthiest men in New York. His financial prowess backed his son’s first big project, a hotel renovation at Grand Central Terminal, and his signature Trump Tower on Fifth Avenue. Although the back story about the hotel project and Trump Tower were well established, the facts assembled by the Times show Donald Trump used deception, not just in carrying out those projects, but throughout the course of his career.
The Times notes he profited from his father’s largess to the tune of more than $400 million. Much of this money was given to him though business entities, trusts and employment schemes that permitted him to accept multiple salaries at the same time.
This manipulation included schemes that made Trump into his father’s employee, landlord, property manager and lender. One example, according to the Times, was Fred Trump’s development of Beach Haven Apartments. After building the sprawling complex with federal loans, he made his children the landlords — creating a stream of income that grew over decades.
But Beach Haven was just one of scores of schemes that Fred Trump devised, and his son was complicit in. In one key passage of the Times report, the authors explain that Fred and his wife, Mary, paid a little more than $52 million in taxes on payments of $1 billion given to their children. Under the law, though, they should have paid 55% tax on gifts — a figure that $52 million doesn’t even come close to.
The evidence the Times explored as this financial X-ray was assembled included more than 100,000 pages of documents. The data gleaned from these papers, some of which came from tax returns, show how nearly 300 streams of revenues, including receipts from coin laundries in apartment buildings, were funneled to the man who would eventually become president.
All the evidence gathered by the Times conflicts directly with the message Trump has long promoted. From his early days in Manhattan, when he marketed himself as a young tycoon, Trump insisted he had succeeded on the basis of his own ingenuity, creativity and grit.
This myth is the chief takeaway from his famous best-selling book, “The Art of the Deal,” and it was the backdrop for the development of his TV show “The Apprentice.” In the opening montage for the program, he falsely declared he was “the largest real estate developer in New York, by far.” Real estate insiders, of course, knew this claim was rubbish.
Not surprisingly, much of Trump’s rhetoric was seen as hyperbole in the service of a public image that was playful and ridiculous. However, once his business acumen became one of the pillars of his presidential campaign, it became fair game for intense examination. Trump has impeded the process by refusing to honor the tradition of releasing his tax returns. However, with impressive legwork and number-crunching, the Times has made the picture much less opaque.
Follow CNN Opinion
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Yup! No real surprise to most of us.
PWS
10-03-18

ANGELO PAPARELLI: The Real “Con Job” Is An Immigration “Court” Lacking Independent Jurists & Run By A Closed Minded Anti-Immigrant Partisan Politico!

https://www.nationofimmigrators.com/immigration-courts/the-long-lived-con-job-structural-injustice-in-the-immigration-courts/

Last week, President Trump held an 81-minute press conference. He traversed wide-ranging territory, including his notions of procedural due process. Discussing the importance of fundamental fairness when trying to distinguish facts from falsehoods, he said:PRES. TRUMP:

Somebody could come and say 30 years ago, 25 years ago, 10 years ago, 5 years ago, he did a horrible thing to me. He did this, he did that, he did that and, honestly, it’s a very dangerous period in our country. And it’s being perpetuated by some very evil people — some of them are Democrats, I must say — because some of them know that this is just a game that they’re playing. It’s a con game. It’s at the highest level. We’re talking about the United States Supreme Court. . . .

I’ve used much worse language in my life than “con job.” That’s like probably the nicest phrase I’ve ever used. I mean con job — it is. It’s a con job. You know confidence. It’s a confidence job, but they — it’s a con job by the Democrats. They know it.

Although clearly referring to recent charges of decades-old sexual wrongdoing against Supreme Court nominee, Judge Brett Kavanaugh, the president could have been discussing credibility determinations that arise every business day in our nation’s administrative tribunals that are euphemistically called immigration “courts.”  The hearings and proceedings in the immigration courts raise one of the highest of stakes, deportation (or as it’s technically termed, removal) from the United States, a process which the Supreme Court in Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948), described as “a drastic measure and at times the equivalent of banishment or exile,” and in Ng Fung Ho v. White, 259 U.S. 276, 284 (1922), as a theft of liberty that “may result … in loss of both property and life, or of all that makes life worth living.”

Yet immigration hearings are all too often a con job — not necessarily for any lack of effort at fairness and truth-ferreting by the actual participants, the immigration judges, and the attorneys representing the federal government and the hapless noncitizen known as the “respondent” who must appear in person and respond to one or more allegations that s/he is in the U.S. unlawfully and thus deportable.  No, the unfairness is baked into the immigration court system; it’s a feature, not a bug.  It was willfully designed by a long-forgotten Congress to be structurally unfair, and intentionally to omit the essential requirement of procedural due process.  That is, that the fact-finder — the judge — must be independent and impartial, leaning neither in favor nor against one side or the other.  In immigration courts, however, the immigration judge and the “trial attorney,” or counsel for the government, are both Executive-Branch employees.   Immigration judges are Department of Justice lawyers appointed by the U.S. Attorney General.  Trial attorneys – who often later become immigration judges – are employed by the Department of Homeland Security and are part of U.S. Customs and Immigration Enforcement.

The Attorney General has the power to fire and remove immigration judges, or, on his unexplained whimsy, to punitively relocate them to hear cases at remote detention facilities in the U.S. hinterlands. As seen in recent months by the incumbent Attorney General Jeff Sessions, the AG has approved the imposition of work load production quotas on immigration judges, which inevitably will lead to even more abbreviated hearings, rushed oral and written decisions by immigration judges, and – all too often – reversible errors that must be rectified by the Board of Immigration Appeals and the federal appellate courts, including the Supreme Court.

The present AG has gone even further in advancing his activist agenda, e.g., on August 16 in Matter of L-A-B-R- et al., 27 I&N Dec. 405 (A.G. 2018), by limiting the authority of immigration judges to find good cause to grant continuances, and on June 11, in Matter of A- B 27 I&N Dec. 316 (A.G. 2018), by taking away the power of immigration judges to find female victims of domestic violence abroad whom the foreign police will not or cannot protect as a social group deserving of protection under the asylum laws of the United States.

Indeed, the con job is even more atrocious because the power of the Attorney General in the Immigration and Nationality Act (INA) seems to have been inspired by no less a legal authority than Humpty Dumpty:

‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’

Alice in Wonderland,  by Lewis Carroll (Ch. 6)(italics in the original).

The “master” — according to INA § 103(a)(1)  — the arbiter of  the meaning of words carrying immigration-related legal consequences, at least for now, is the incumbent, AG Jeff Sessions:

The Attorney General shall be charged with the administration and enforcement of this Act and all other laws relating to the immigration and naturalization of aliens, except insofar as this Act or such laws relate to the powers, functions, and duties conferred upon the President, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling (emphasis added).

Many respected commissions, organizations and individuals have long assailed the systemic deficiencies that make our nation’s administrative system for procedural fairness in deportation proceedings unfair and ineffective (including, Kip T. Bollins, The President of the Federal Bar Association which has  proposed model legislation, the Board of Governors of the American Immigration Lawyers Association, the Alliance of Business Immigration Lawyers, the National Immigrant Justice Center,  and Ashley Tabaddor, President of the National Association of Immigration Judges, in recent congressional testimony) – a broken and unjust process that by now can only be seen as a con job.

In 1981, Rev. Theodore M. Hesburgh, President of the University of Notre Dame, chaired the Select Commission on U.S. Immigration and Refugee Policy, which issued a 467-page report.  The report contained a recommendation (23 VII.C.I.) on the re-positioning of the immigration court from the Justice Department into an independent judicial tribunal:  “The Select Commission recommends that existing law be amended to create an immigration court under Article I of the U.S. Constitution.” The Commission explained its reasoning in Article 23 VII.C.I., page 248, entitled “Structure for Immigration Hearings and Appeals”:

The Select Commission is convinced of the need for a more equitable and efficient method of processing exclusion and deportation cases. Some Commissioners believe that the answer lies in the creation of a U.S. Immigration Board, with statutory independence from INS [Immigration and Naturalization Service] and the Attorney General, subject to the requirements of the Administrative Procedures Act. Such a mechanism, the Commission members argue, would also be an ideal body for adjudicating noncriminal actions taken against employers under an employer sanctions system. A majority of Commissioners, however, is of the view that such a solution would still suffer from many of the current administrative inadequacies. The institution of an Immigration Court under Article I of the U.S. Constitution, they believe, would result in more efficient and uniform processing of cases. . . .

The Immigration Court recommended by the Commission will include a trial division to hear and decide exclusion and deportation cases and an appellate division to correct hearing errors and permit definitive, nationally binding resolutions of exclusion and deportation cases.* The new court also offers the potential for introducing judicial uniformity into the review of denials of applications and petitions — matters that now occupy the attention of district courts around the country. The elimination of potential disparate rulings by courts of appeals should discourage further litigation. The Commission majority is also of the view that an Article I Immigration Court is more likely to attract outstanding adjudicators. Improvements in the caliber of personnel will enhance the quality of decisions and generally: eliminate any need for further review. Some Commissioners believe that if the Article I Court cannot be instituted for several years, interim measures should be taken to improve the competency of the existing INS.

*The remedy of Supreme Court review by petition for certiorari would remain available for the rare immigration case of great national importance; review of immigration decisions, by U.S. Courts of Appeals would be eliminated.

Congress should of course consider and debate the merits of the Commission’s sub-recommendations. (I would not eliminate the right of petition to the federal appeals courts for the very reason that many immigration rulings are of great national importance and the U.S. Supreme Court’s docket cannot accommodate them.) Still, the fundamental proposition urged by the Select Commission – to remove the immigration courts from the oversight of the Attorney General, and instead structure it as an Article I court – is supported by a multitude of contemporary stakeholders.

One leading voice is Hilarie Bass, President of the American Bar Association (ABA), who offered in her April 18, 2018 Statement submitted to the Senate Judiciary Committee’s Subcommittee on Border Security and Immigration Committee, “Strengthening And Reforming America’s Immigration Court System,” the ABA’s compelling reasons:

[The ABA] determined that the Article I model presented the best option for meeting the goals and needs of the system. The Article I model is likely to be viewed as more independent than an agency because it would be a true judicial body; is likely as such to engender the greatest level of confidence in its results; can use its greater prestige to attract the best candidates for judgeships; and offers the best balance between independence and accountability to the political branches of the federal government. Given these advantages, in our view, the Article I court model is the preferred option.

. . .  Removing the adjudication system from the Department of Justice, whose primary function is a law enforcement agency, is vital to assuaging concerns about fairness and the perception of fairness. As a wholly judicial body, an Article I court is likely to engender the greatest level of confidence in the results of adjudication.

An Article I court also should attract highly-qualified judicial candidates and help to further professionalize the immigration judiciary. History has shown the potential for the politicization of the hiring process and an inherent bias toward the hiring of current or former government employees. Removing the hiring function from the Department of Justice also may increase the diversity of the candidate pool. Providing for a set term of sufficient length, along with protections against removal without cause, will similarly protect decisional independence and
make Article I judgeships more attractive. By attracting and selecting the highest quality lawyers as judges, an Article I court is more likely to produce well-reasoned decisions. Such decisions, as well as the handling of the proceedings in a professional manner, should improve the perception of the fairness and accuracy of the result. Perceived fairness, in turn, should lead to greater acceptance of the decision without the need to appeal to a higher tribunal. When appeals are taken, more articulate decisions should enable the reviewing body at each level to be more efficient in its review and decision-making and should result in fewer remands requesting additional explanations or fact-finding.

Unfortunately, Attorney General Sessions seems mired in a false equivalency, asserting that anyone opposing his views on immigration must ipso facto be a proponent of unregulated open borders. He made this clear recently in his remarks welcoming 44 new immigration judges, characterizing immigration lawyers not as officers of the court but as single-objective advocates (essentially as mouthpieces) who will do or say anything to win in immigration court:

Good lawyers, using all of their talents and skill, work every day – like water seeping through an earthen dam – to get around the plain words of the INA to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the [INA]. That is our most serious duty.

He said other disturbing things as well in addressing the new immigration judges:

You have an obligation to decide cases efficiently and to keep our federal laws functioning effectively, fairly, and consistently.

And, as the statute states, Immigration Judges conduct designated proceedings “subject to such supervision and shall perform such duties as the Attorney General shall prescribe”.

This last provision gives me responsibility to ensure that our immigration system operates in an effective and efficient manner consistent with law enacted by Congress.  Many in this country take a different view. They object to any enforcement that works. They evidence an open borders philosophy. . . .

As you take on this critically important role, I hope that you will be imaginative and inventive in order to manage a high-volume caseload. I do not apologize for expecting you to perform, at a high level, efficiently and effectively.

Your role requires great legal skill. Many of the cases present complex legal issues, but like anyone acting as a judge, you must manage your docket and support staff well.Cases must be moved to conclusion.

And as members of the Executive Branch, it is our duty to “take care that the laws be faithfully executed.” When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation. Your job is to apply the law—even in tough cases.

As we work to restore rule of law in our immigration system, we will send a clear message to the world that the lawless practices of the past are over. The world will know what our rules are, and great numbers will no longer undertake this dangerous journey.

To be sure, the world — indeed, the American people — should know what our rules are.  They should also know Lord that their ability to make the arduous journey to settle in America pursuing their opportunity under the facts in their case and our immigration laws to live out the American Dream will be decided by an impartial jurist in an independent tribunal. This is not our fathers’ immigration system. It cannot be learned by a three-year-old. Its laws should not be declared by any Attorney General. Congress must end this con job.

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Right on Angelo! I call it a cruel and unconstitutional “bait and a switch.”
Respondents appear before robed “judges” who actually are enforcement officers in partnership with the immigration police and beholden to a “chief enforcer” who has complete contempt for foreign nationals, truth, the rule of law, and the US Constitution.
Sure, notwithstanding the odds many judges “buck the trend” and provide fairness as best they can in an inherently unfair and biased system. But, it’s still a hoax perpetrated by Congress and enabled by Article III Courts who should have held this mess unconstitutional from the day it was established.
PWS
10-02-18

GONZO’S WORLD: DHS IG REPORT SLAMS GONZO’S “KIDDIE GULAG” WHILE CRITICISM OF INTENTIONAL CHILD ABUSE BY HIM AND OTHERS IN THE ADMINISTRATION CONTINUES TO MOUNT — Will The Article IIIs Eventually Draw The Line Between Incompetence & Intentional, Malicious Violations Of Constitutional Rights & Hold Gonzo & His Collaborators in DHS & ORR Personally Liable Under “Bivens?”

https://www.washingtonpost.com/world/national-security/trumps-family-separation-policy-was-flawed-from-the-start-watchdog-review-says/2018/10/01/c7134d86-c5ba-11e8-9b1c-a90f1daae309_story.html

 

October 1 at 7:44 PM

The Trump administration’s “zero tolerance” crackdown at the border this spring was troubled from the outset by planning shortfalls, widespread communication failures and administrative indifference to the separation of small children from their parents, according to an unpublished report by the Department of Homeland Security’s internal watchdog.

The report, a copy of which was obtained by The Washington Post, is the government’s first attempt to autopsy the chaos produced between May 5 and June 20, when President Trump abruptly halted the separations under mounting pressure from his party and members of his family.

The DHS Office of Inspector General’s review found at least 860 migrant children were left in Border Patrol holding cells longer than the 72-hour limit mandated by U.S. courts, with one minor confined for 12 days and another for 25.

Many of those children were put in chain-link holding pens in the Rio Grande Valley of southern Texas. The facilities were designed as short-term way stations, lacking beds and showers, while the children awaited transfer to shelters run by the Department of Health and Human Services.

U.S. border officials in the Rio Grande Valley sector, the busiest for illegal crossings along the nearly 2,000-mile U.S.-Mexico border, held at least 564 children longer than they were supposed to, according to the report. Officials in the El Paso sector held 297 children over the legal limit.

The investigators describe a poorly coordinated interagency process that left distraught parents with little or no knowledge of their children’s whereabouts. In other instances, U.S. officials were forced to share minors’ files on Microsoft Word documents sent as email attachments because the government’s internal systems couldn’t communicate.

“Each step of this manual process is vulnerable to human error, increasing the risk that a child could become lost in the system,” the report found.

Based on observations conducted by DHS inspectors at multiple facilities along the border in late June, agents separated children too young to talk from their parents in a way that courted disaster, the report says.

“Border Patrol does not provide pre-verbal children with wrist bracelets or other means of identification, nor does Border Patrol fingerprint or photograph most children during processing to ensure that they can be easily linked with the proper file,” the report said.

“It is a priority of our agency to process and transfer all individuals in our custody to the appropriate longer-term detention agency as soon as possible,” U.S. Customs and Border Protection, which includes Border Patrol, said in a statement. “The safety and well-being of unaccompanied alien children . . . is our highest responsibility, and we work closely with the Department of Health and Human Services (HHS) Office of Refugee Resettlement to ensure the timely and secure transfer of all unaccompanied minors in our custody as soon as placement is available from HHS.”

In its Sept. 14 response to the inspector general’s report, DHS acknowledged the “lack of information technology integration” across the key immigration systems and “sometimes” holding children beyond the 72-hour limit.

Jim Crumpacker, the DHS official who responded to the report, said the agency held children longer mainly because HHS shelter space was unavailable. But he said transferring children to less-restrictive settings is a priority.

On June 23, three days after the executive order halting the separations, DHS announced it had developed a “central database” with HHS containing location information for separated parents and minors that both departments could access to reunite families. The inspector general found no evidence of such a database, the report said.

“The OIG team asked several [Immigration and Customs Enforcement] employees, including those involved with DHS’ reunification efforts at ICE Headquarters, if they knew of such a database, and they did not,” it states. “DHS has since acknowledged to the OIG that there is no ‘direct electronic interface’ between DHS and HHS tracking systems.”

Inspectors said they continue to have doubts about the accuracy and reliability of information provided by DHS about the scope of the family separations.

In late June, a federal judge ordered the government to reunite more than 2,500 children taken from their parents, but three months later, more than 100 of those minors remain in federal custody.

The inspector general’s report also found that U.S. Customs and Border Protection (CBP) restricted the flow of asylum seekers at legal ports of entry and may have inadvertently prompted them to cross illegally. One woman said an officer had turned her away three times, so she crossed illegally.

At one border crossing, the inspection team saw CBP attempt to increase its detention space by “converting former offices into makeshift hold rooms.”

The observations were made by teams of lawyers, inspectors and criminal investigators sent to the border amid concerns raised by members of Congress and the public. They made unannounced visits to CBP and ICE facilities in the border cities of El Paso and McAllen, Tex.

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Meanwhile, over at Vanity Fair, Isobel Thompson give us the “skinny” on how the self-created “Kiddie Gulag” that Sessions, Stevie Miller, and Nielsen love so much has turned into total chaos, with the most vulnerable kids among us as its victims. We’ll be feeling the effects of these cruel, inhuman, and unconstitutional policies for generations!

https://www.vanityfair.com/news/2018/10/donald-trump-child-detention-crisis-is-getting-worse

Three months after Donald Trump gave in to global opprobrium and discontinued his administration’s policy of separating children from their parents at the Mexican border, the stark impact of his zero-tolerance directive continues to unfold, with reports emerging that, in the space of a year, the number of migrant children detained by the U.S. government has spiked from 2,400 to over 13,000—despite the number of monthly border crossings remaining relatively unchanged. The increase, along with the fact that the average detainment period has jumped from 34 to 59 days, has resulted in an accommodation crisis. As a result, hundreds of children—some wearing belts inscribed with their emergency-contact information—have been packed onto buses, transported for hours, and deposited at a tented city in a stretch of desert in Tornillo, West Texas. According to The New York Times, these journeys typically occur in the middle of the night and on short notice, to prevent children from fleeing.

The optics of the child-separation crisis have been some of the worst in history for the Trump administration, and the tent city in Tornillo is no exception. The facility is reportedly run according to “guidelines” provided by the Department of Health and Human Services, but access to legal aid is limited, and children—who sleep in bunks divided by gender into blocks of 20—are given academic workbooks, but no formal teaching. In theory, the hundreds of children being sent to Tornillo every week should be held for just a short period of time; the center first opened in June as a temporary space for about 400. Since then, however, it has been expanded to accommodate 3,800 occupants for an indefinite period.

Again, the lag time is largely thanks to the White House. Typically, children labeled “unaccompanied minors” are held in federal custody until they can be paired with sponsors, who house them as their immigration case filters through the courts. But thanks to the harsh rhetoric embraced by the White House, such sponsors are now in short supply. They’re often undocumented immigrants themselves, which means that in this environment, claiming a child would put them at risk for deportation. In June, that risk became even more acute when authorities announced that potential sponsors would have to submit their fingerprints, as well as those of any adults living in their household: data that would then be passed to immigration authorities. Matthew Albence, who works for Immigration and Customs Enforcement, unwittingly illustrated the problem when he testified before Congress last week that I.C.E. had arrested multiple people who had applied to sponsor unaccompanied minors. Almost three-quarters had no criminal record.

Over time, the number of detained children is only expected to increase. According to The Washington Post, the flood of Central American immigrants moving north, driven by “hunger, joblessness, and the gravitational pull of the American economy,” shows no sign of abating. The number of men who cross the border with children has reportedly risen from 7,896 in 2016 to 16,667 this year, while instances of migrants falsely claiming children as their own have reportedly increased “threefold.” “Economic opportunity and governance play much larger roles in affecting the decision for migrants to take the trip north to the United States,” Kevin McAleenan, a border-security official, told the Post, adding that “a sustained campaign that addresses both push and pull factors” is “the only solution to this crisis.”

Given the attitude of the current administration, such a campaign seems unlikely to materialize. With Congress poorly positioned to pass comprehensive immigration reform, and a suddenly swamped detention system draining money and resources and damaging the mental health of thousands of children, the escalating crisis seems poised to become an ever more serious self-inflicted thorn in the president’s side. Although the White House is confident that, as hard-liner Stephen Miller boasts, it can’t lose on immigration, it will at some point be forced to acknowledge that its draconian strategy has morphed into chaos.

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Wonder if any of these evil dudes who along with Sessions helped plan and  implement the “Kiddie Gulag” knowing that it was likely in violation of the Constitution (in Federal court, DOJ lawyers didn’t even contest that a policy of intentional child separation would be unconstitutional) took out the “Bivens Insurance” offered to USG employees at relatively low-cost (I sure did!).

The only good news is that they are likely to be tied up in law suits seeking damages against them in their personal capacities for the rest of their lives!

So, perhaps there will eventually be some justice! But, that’s still won’t help traumatized kids whose lives have been screwed up forever as an illegal, immoral, and bogus, “deterrent” by a racist White Nationalist regime.

PWS

10-02-18

THE GIBSON REPORT — 10-01-18 — Compiled By Elizabeth Gibson, Esq., NY Legal Assistance Project

TOP UPDATES

USCIS to Begin Implementing New Policy Memorandum on Notices to Appear

USCIS: USCIS will take an incremental approach to implement this memo… The June 2018 NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. Existing guidance for these case types will remain in effect.

 

Proposed I-912 Fee Waiver Form Revision

USCIS: USCIS is proposing to revise our Form I-912, Request for Fee Waiver, to remove the receipt of means-tested benefits from the eligibility criteria… Eligibility for these benefits can vary from state to state, depending on the state’s income level guidelines.  As a result, individuals who would not otherwise qualify under the poverty-guideline threshold and financial hardship criteria have been granted fee waivers by USCIS.

 

EOIR Announces Largest Ever Immigration Judge Investiture

DOJ: The Executive Office for Immigration Review (EOIR) announces the investiture of 46 immigration judges, including two assistant chief immigration judges, marking for the second month in a row the largest class in the agency’s history. IJ bios here.

  • Samuel M. Factor, Immigration Judge, New York City Immigration Court
  • Brian T. Palmer, Immigration Judge, New York Immigration Court
  • Oshea Denise Spencer, Immigration Judge, New York City Immigration Court

 

AILA, CLINIC, and NILC Provides Update on FAM Changes to Public Charge

AILA, CLINIC, and NILC provided a summary of issues discussed during a 9/12/18 telephonic call with representatives from DOS concerning FAM changes and consulates’ public charge determinations and associated Form I-601A revocations. AILA Doc. No. 18092632

 

Which Immigration Cases Will the Supreme Court Hear This Term?

AIC: Although only one immigration case is currently scheduled to be heard, challenges to President Trump’s immigration policies will likely end up in front of the Court by the end of the term.

 

Policy Brief: S. 3478 Would Codify Cruelty Against Arriving Children

In this policy brief, AILA expresses its opposition to S. 3478, which would eviscerate long-standing legal standards and protections for immigrant children and families seeking asylum who arrive at the U.S. border. AILA Doc. No. 18092500

 

Tracking Over 2 Million ICE Arrests: A First Look

TRAC: Historically, the vast majority of ICE arrests occur when the agency assumes custody of immigrants from another law enforcement agency. Since Trump assumed office, roughly three out of four ICE arrests were what ICE refers to as “custodial” arrests…The remaining one-quarter (25%) were individuals arrested at their home, place of work, or elsewhere in the wider community including at courthouses or at DHS offices when the immigrant had appeared for an appointment.

 

New Immigration Policy Gives USCIS Adjudicators Full Discretion to Deny Cases Without Issuing RFE

AILA member Taymoor Pilhevar discusses USCIS’s policy memorandum issued on 7/13/18 on the rescission of the standing policy that RFEs and NOIDs must be issued before a denial is issued. AILA Doc. No. 18092730

 

Dozens of Doctors Who Screen Immigrants Have Record of ‘Egregious Infractions,’ Report Says

NYT: The report looked at more than 5,500 doctors across the country used by United States Citizenship and Immigration Services as of June 2017 to examine those seeking green cards. More than 130 had some background of wrongdoing, including one who sexually exploited female patients and another who tried to have a dissatisfied patient killed, the report said.

 

In the Face of a Shutdown, Trump and Congress Delay Border Wall Fight Until December

AIC: This continuing resolution sets up a potential major battle over immigration enforcement, border wall funding, and other immigration issues—which could all come to a head in the face of a December government shutdown.

 

An Illinois Priest Living Legally in the U.S. for 14 years Is Being Deported – Over a Single Vote He Shouldn’t Have Cast

WaPo: Boase was placed in removal proceedings last month, roughly a year after he admitted during his citizenship interview with U.S. Citizenship and Immigration Services that, yes, he once registered to vote, and yes, he once cast a vote.

LITIGATION/CASELAW/RULES/MEMOS

 

Class Action Lawsuit Filed Challenging Termination of TPS for El Salvador, Haiti, Nicaragua, and Sudan

The plaintiffs filed a class action suit and motion for preliminary injunction to force the government to preserve TPS for more than 200,000 individuals, stating that TPS terminations was unconstitutional and violated the Administrative Procedure Act. (Ramos et al. v. Nielsen et al, 3/12/18) AILA Doc. No. 18092833

 

CA9 Holds CBP Officer Is Not Entitled to Qualified Immunity and Holds BivensCan Be Extended

The court held that, taking the facts as alleged in the complaint, CBP officer is not entitled to qualified immunity due to violation of clearly established unreasonable seizure, and can be subject to a Bivens claim by mother of the deceased. (Rodriguez v. Swartz, 8/7/18) AILA Doc. No. 18092534

 

CA9 Holds BIA Erred in Denying Cancellation Based on Incorrect Application of Categorical and Modified Categorical Approaches for CIMT

The court held BIA erred in concluding OR witness tampering statute was categorically CIMT and that statute was not divisible; under modified categorical approach, court found statute was divisible and applicable subsection also not categorically CIMT. (Vasquez-Valle v. Sessions, 8/10/18) AILA Doc. No. 18092536

 

C.D. Cal. Grant Injunctive and Declaratory Relief Pursuant to FloresSettlement

Plaintiffs seek class certification to have ORR policies/practices be declared unlawful and to enjoin due process violations in evaluating fitness of custodians, placement in secure facilities, administering psychotropic drugs, and lack of access to counsel. (Lucas R. v. Azar, 6/29/18) AILA Doc. No. 18092670

 

C.D. Cal. Grants Class Certification to Certain Cambodian Nationals Affected by New ICE Re-Detention Policy

The court granted class certification to putative class of 1900 individuals subject to an October 2017 ICE policy of re-detention without notice or individual analysis to determine necessity of re-detention; class seeks injunctive and declaratory relief. (Chhoeun v. Marin, 8/14/18) AILA Doc. No. 18092537

 

C.D. Cal. Receives APA and Mandamus Complaint of Honorably Discharged Noncitizen Vet Who Claims Unreasonable Delay in Naturalization Application

Complaint alleges unreasonable delay of naturalization application that was part of DOD’s MANVI program; seeks mandamus compelling government action. Lack of adjudication within normal processing times and under policies to expedite military applications violate APA. (Sea v. DHS, 7/19/18) AILA Doc. No. 18092701

 

E.D. Wash. Grants Motion to Dismiss, Holds IJ Deportation Decision Void for Lack of Proper Notice Due to Deficient NTA

The court found that despite a timely delivery to hearing due to being in custody, defendant was deprived of proper notice because NTA failed to state time and date of hearing; IJ, thus, had no jurisdiction to enter deportation order. (U.S. v. Virgen-Ponce, 7/26/18) AILA Doc. No. 18092731

 

W.D. Wash. Grants Summary Judgment for Noncitizen’s APA Claim, Reinstates LPR Status Until Removal Proceedings Are Complete

The court held that revocation of green card/LPR status as void ab initio outside of INA’s five-year rescission period without a hearing was a due process violation and an agency action “not in accordance with law”; ordered status reinstated until hearing complete. (Lai v. U.S., 7/17/18) AILA Doc. No. 18092702

 

  1. N.J. Grants TRO to Stay Removal and Habeas to Release Petitioner from Detention While Pursuing Provisional Unlawful Presence Waiver

The court held that detention and attempted deportation of petitioner while he pursued a provisional unlawful presence waiver violated the APA and Fifth Amendment. Formal opinion forthcoming. (Martinez v. Nielsen, 8/3/18) AILA Doc. No. 18092601

 

CA DC Reverses and Remands, Vacating USCIS Determination that USC Lacked “Intention” to Relinquish U.S. Nationality

The court held USCIS did not properly interpret “intention” in 8 USC §1481(a), stating that a USC’s potential inability to leave and be admitted elsewhere did not mean USC lacked “intention” to relinquish nationality under the domestic-renunciation provision. (Kaufman v. Nielsen, 7/20/18) AILA Doc. No. 18092602

 

DHS OIG Finds USCIS’s Medical Admissibility Screening Process Needs Improvement

DHS OIG found that USCIS has inadequate controls for verifying that foreign nationals seeking LPR status met health-related standards for admissibility. DHS OIG made recommendations that, when implemented, will improve USCIS selection and oversight of physicians and its review of medical forms. AILA Doc. No. 18092573

 

USCIS Issues Policy Alert on Special Naturalization Provisions for Children

USCIS issued a policy alert updating the USCIS Policy Manual with guidance to clarify certain special naturalization provisions for children. This guidance is effective 9/26/18, and is controlling and supersedes any prior guidance. Comments are due by 10/9/18. AILA Doc. No. 18092605

 

Congress Urges DHS Inspector General to Investigate Allegations of Coercion and Abuse Against Separated Immigrant Parents

On 9/26/18, members of the House and Senate sent a letter to the Department of Homeland Security’s Acting Inspector General, urging for an investigation of allegations of coercion and abuse by DHS officers against immigrant parents separated from their children at the border. AILA Doc. No. 18092633

 

RESOURCES

EVENTS

 

ImmProf

 

Monday, October 1, 2018

Sunday, September 30, 2018

Saturday, September 29, 2018

Friday, September 28, 2018

Thursday, September 27, 2018

Wednesday, September 26, 2018

Tuesday, September 25, 2018

Monday, September 24, 2018

 

AILA NEWS UPDATE

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

 

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Thanks, Elizabeth!

Check out the “Litigation Section” to see how “real” Article III Courts continue to reject the legal arguments pushed by the Sessions DOJ.

Perhaps the “sleeper” here is US v. Virgen-Ponce, ED WA.  The District Judge rejected the BIA’s position in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018)  that a “Notice to Appear” that fails to specify the actual time, date, and place of hearing is sufficient to vest jurisdiction with an Immigration Judge.  The “boneheaded” position taken by the BIA and DHS under Sessions (rejecting the Supreme Court’s interpretation) could, if rejected by more Article III Courts and ultimately the Supremes, invalidate most of the 760,000 cases now pending in Immigration Court! Read my colleague Judge Jeffrey Chase’s outstanding blog about the BIA’s “dereliction of duty” in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018) http://immigrationcourtside.com/2018/09/02/hon-jeffrey-chase-on-how-the-bia-blew-off-the-supremes-matter-of-bermudez-cota-27-in-dec-441-bia-2018-is-the-bia-risking-docket-disaster-to/

While this is only one District Court, the legal argument is being pursued across the country. This could potentially effectively “invalidate” the entire Immigration Court System. Given the toxic, lawless actions of AG Jeff Sessions, a “complete restart” under a neutral and competent court-appointed “Special Master” could be the country’s only salvation until Congress establishes an independent Immigration Court that actually complies with our Constitution.

Given such a chance at restart, probably 60% -75% of today’s Immigration Court docket could be left off docket pending a rational legalization program of some type.

With a remaining docket of 200,000 to 350,000 cases that actually need to be litigated, and a more disciplined and professional DHS that respects court time and follows the same type of prosecutorial discretion guidelines as almost every other law enforcement agency in America, an independent Immigration Court with today’s number of Immigration Judges could actually  maintain an ideal 6-18 month “decision cycle” without building new backlog, and most importantly, without denying Due Process or fundamental fairness to anyone. It actually could  fulfill it’s once-stated (but forgotten under Bush and Obama and then trashed by Sessions) vision of “being the world’s best tribunals, guaranteeing fairness and Due Process for all.”

What a difference honest, rational administration that actually encouraged compliance with the laws (including asylum and other protection laws) and our Constitution, instead of mocking and violating them, could make!

PWS

10-01-18

JOIN THE NEW DUE PROCESS ARMY (“NDPA”) & FIGHT AGAINST JEFF SESSIONS & HIS WHITE NATIONALIST ATTACK ON DUE PROCESS IN OUR IMMIGRATION COURTS! — Attend This Free Panel @ GW Law Tomorrow, Tuesday, Oct. 2 @ 3 PM

Immigration, Family Separation, Detention and Beyond: Where is the US Heading?
Alberto M. Benitez
Professor of Clinical Law Director of Immigration Clinic, GW Law
Michelle Brane
Director, Migrant Rights and Justice Program, Women’s Refugee Commission
Royce B. Murray
Policy Director American Immigration Council
This panel will discuss current issues related to the enforcement of immigration laws in the United States. The panelists will shed light on recent matters that have attracted significant media coverage, such as family separation policies, the practice of detaining families seeking asylum, and the plan advanced by the Trump Administration affecting immigrants seeking welfare benefits. The panel will discuss the domestic law implications of these issues, as well as their international law repercussions.
Closing Remarks: Paulina Vera, Supervisory Attorney, Immigration Law Clinic, GW Law Moderator: Rosa Celorio, Associate Dean, International & Comparative Legal Studies, GW Law
Tuesday, October 2, 2018 3:00-4:30 p.m.
Jacob Burns Moot Court Room [Lerner 101] Light Refreshments

“OUR GANG” OF RETIRED US IMMIGRATION JUDGES CONDEMNS SESSIONS’S DESTRUCTION OF DUE PROCESS IN US IMMIGRATION COURTS – Calls On US Chief Immigration Judge Marybeth Keller & Her Colleagues To Stand Up To Sessions & Enforce Due Process Over Mindless “Haste Makes Waste” Quotas!

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/statement-of-former-immigration-judges-and-bia-members-opposing-ij-quotas-oct-1-2018

MAWA IS DOOMED: Demographics & Mutual Dependency Make Trump’s White Nationalist Racist Assault On Minorities Both Economically Stupid & Ultimately Futile – “Through his rhetoric and actions, Mr. Trump stands for keeping America white, appealing to his base by implicitly promising to preserve the racial status quo. But Mr. Trump’s supporters, and the country in general, must not ignore the generational dependency between older whites and younger minorities.”

https://www.nytimes.com/2018/09/30/opinion/trump-cant-win-the-war-on-demography.html

William H. Frey writes in the NY Times:

Trump Can’t Win the War on Demography

A proposed citizenship question on the 2020 census reveals the dependency between older white voters and America’s growing young minority population.

By William H. Frey

Mr. Frey, a demographer, is the author of “Diversity Explosion.”

Image
A press conference held last April, when New York State filed suit against the Trump administration over the proposed changes to the 2020 census form.CreditCreditDrew Angerer/Getty Images

Since the early days of his campaign, from his proposal to build a wall along the Mexican border to his discredited committee on voter fraud, President Trump has declared war on America’s changing demography. His administration has followed through on that strategy with a proposal to add a question to the 2020 census asking about citizenship. If the question remains on the form, millions of households, particularly Hispanic and Asian-American, could skip the census, leading to an overrepresentation of white Americans during this once-a-decade count.

Six lawsuits seeking to remove the proposed question are moving through the federal courts, with the first trial likely to take place this fall.

If it is added to the census form, the citizenship question will distort our understanding of who resides in the country. What this selective underenumeration will not do is make America’s growing racial minority populations disappear. The losers from this undercount include members of Mr. Trump’s older white base, who will suffer from lost investments in a younger generation, whose successes and contributions to the economy will be necessary to keep America great.

The demographic trends make this plain. America’s white population is growing tepidly because of substantial declines among younger whites. Since 2000, the white population under the age of 18 has shrunk by seven million, and declines are projected among white 20-somethings and 30-somethings over the next two decades and beyond. This is a result of both low fertility rates among young whites and modest white immigration — a trend that is not likely to change despite Mr. Trump’s wish for more immigrants from Norway.

The likely source of future gains among the nation’s population of children, teenagers and young working adults is minorities — Hispanics, Asians, blacks and others — most of whom are born in the United States.

Indeed, the only part of the white population that is growing appreciably is older people, the same group to whom Mr. Trump is appealing. Thanks to aging baby boomers, the older retirement-age white population will grow by one-third over the next 15 years and, with it, the need for the government to support Social Security, Medicare, hospitals and the like. Revenue for these programs will have to come from the younger minority population. If the census does not accurately count this population, then all the services that support children and future workers, such as public education, Head Start, the Children’s Health Insurance Program and Medicaid, will be shortchanged.

Although the slowly growing, rapidly aging white population will be accurately counted, the fast-growing minority school-age and young adult populations that represent the nation’s future will not get their due — demographically, politically or economically.

An in-house Census Bureau analysis based on 2010 survey data found that the inclusion of a citizenship question reduced the response rate among households that have at least one noncitizen individual. While 7 percent of United States residents are themselves noncitizens, 14 percent live in households that include one or more noncitizens. The latter figure rises to 46 percent among all Hispanics and to 45 percent among Asian-Americans, compared with just 8 percent among blacks and 3 percent among whites.

Let’s assume that one in three people in Hispanic and Asian noncitizen households refuses to answer the census. If that’s the case, the Hispanic share of the United States population would drop by 2.1 percentage points (from 17.3 to 15.2 percent) and the total white population share would rise by 2.2 percentage points (from 62 to 64.2 percent).

This imbalance would influence congressional reapportionment, hurting large, immigrant-heavy states. It will also shape how congressional and state legislative districts are drawn, favoring rural and small areas at the expense of large metropolitan areas, since noncitizen households are far more prevalent in the latter.

The underenumeration of racial minorities would also misallocate billions of dollars in state and federal funds for housing assistance, job training, community development and a variety of social services that should be distributed on the basis of census counts. It would provide a faulty framework for surveys that will inform thousands of policy and business decisions, such as where to locate schools, hospitals, employment sites or retail establishments catering to different population groups, over the next decade.

Through his rhetoric and actions, Mr. Trump stands for keeping America white, appealing to his base by implicitly promising to preserve the racial status quo. But Mr. Trump’s supporters, and the country in general, must not ignore the generational dependency between older whites and younger minorities. Forcing an inaccurate accounting of who resides in the nation will have long-term negative consequences for everyone.

William H. Frey, a fellow at the Brookings Institution and a population studies professor at the University of Michigan, is the author of “Diversity Explosion: How New Racial Demographics Are Remaking America.”

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Yup! Racist bias and bigotry are always the enemies of truth, justice, and intelligent actions.

As Willie Nelson says “Vote ‘Em Out!”

PWS

10-01-18