"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Matter of Castillo-Perez, to determine(1) In connection with an application for cancellation of removal under 8 U.S.C. § 1229b(b), what is the appropriate legal standard for determining when an individual lacks “good moral character” under 8 U.S.C. § 1101(f)?
(2) What impact should multiple convictions for driving while intoxicated or driving under the influence have in determining when an individual lacks “good moral character” under 8 U.S.C. § 1101(f)?
(3) What impact should multiple such convictions have in determining whether to grant discretionary relief under 8 U.S.C. § 1229b(b).
The Acting Attorney General ordered that the case be stayed during the pendency of his review.
The BIA is rapidly becoming irrelevant. But since the Acting Attorney General isn’t an expert in immigration laws, his decisions should get no deference from the real courts. And, then there is the question of whether he really is the Acting Attorney General . . . .
THE GIBSON REPORT – 12-03-18 – Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group – Learn About Trump’s Self-Created “Bogus Border Crisis!”
Vox: Before 2016, and in some cases as recently as six months ago, they would have had no problem and no delay. But for the last several months, the Trump administration has made a practice of limiting the number of asylum seekers allowed to enter the US each day — a policy it calls “metering.”
Politico: The new Mexican government of Andrés Manuel López Obrador will press the United States to invest least $20 billion in Central America and, reportedly, faster asylum processing in exchange for allowing migrants to remain in Mexico while they seek refugee status in the U.S.
Politico: A group of migrant women in the caravan announced Thursday that it would begin a hunger strike to protest the slow pace at which the women are being allowed to apply for asylum, as officials from the United States and Mexico are set to meet this weekend to negotiate a plan to process their claims.
Pew: The number of unauthorized immigrants in the U.S. fell to its lowest level in more than a decade, according to new Pew Research Center estimates based on 2016 government data. The decline is due almost entirely to a sharp decrease in the number of Mexicans entering the country without authorization.
Quartz: Mexican immigration authorities are even less prepared than the US to process them. The Mexican agency charged with helping refugees, COMAR by its Spanish acronym, only has four offices, and none near the border. Earlier this year, Mexico’s National Human Rights Commission warned of the “possible collapse” of the country’s refugee protection system as COMAR’s backlog grew to 60% of applications. It also identified “situations of risk of torture and abuse” in immigrant detention centers, which it found had no adequate living conditions or access to medical attention.
NBC: The federal agency’s threat came a day after the New Jersey attorney general announced new restrictions on local law enforcement cooperation with ICE.
Vera: The Vera Institute of Justice is excited to announce that we are expanding our Safety and Fairness for Everyone (SAFE) Network – currently a diverse group of a dozen cities and counties across America dedicated to providing publicly funded universal representation for people facing deportation.
WaPo: A key Senate committee postponed a vote Wednesday on President Trump’s pick to lead the main agency handling immigration enforcement as a coalition of unions raised “serious concern” about Ronald D. Vitiello’s ability to effectively oversee the agency.
CBS: The American Civil Liberties Union, which has filed more than 50 immigrants’ rights lawsuits against the Trump administration, recorded its most successful #GivingTuesday in years. That wasn’t just the case just for the ACLU. This year’s day for charitable giving was the biggest ever, raking in nearly $400 million in donations online in the U.S. alone, according to the 92nd Street Y.
Guardian: Housed in the Gadsden county jail since the late 1990s, the gray slab of concrete that is the Etowah Detention Center, is routinely identified by lawyers, advocates and detainees as one of the worst Ice facilities in the United States. It has one of the longest detention times of all Ice facilities.
In what appears to be a new development, Page 71 of the USCIS FY 2019 budget indicates that USCIS wants to transfer “$207.6 million in Immigration Examinations Fee Account (IEFA) fees to ICE to support immigration investigation and enforcement.”
WaPo: New York’s highest court boldly ruled Tuesday that deportation may be a more severe consequence than even a few months behind bars. The divided decision created a situation in which two individuals charged with the same low-level offense have vastly different trial rights — a noncitizen is entitled to a jury trial, while a U.S. citizen is not. [Note: This is obviously being appealed.]
WaPo: The lawsuit alleges that the Trump administration’s expanded definition of “public charges” has had a chilling effect on the city’s immigrant community, which Baltimore officials see as key to its revival. Legal immigrants have stopped using school programs, food subsidies, housing vouchers and health clinics for which they are eligible, the lawsuit says, hurting the city’s mission to welcome immigrants and creating long-term expenses as Baltimore deals with a sicker and less-educated community.
AP: Juarez’s lawyers said Mariee developed a respiratory illness while she and her mother were detained at the South Texas Family Residential Center in Dilley, Texas. They accused U.S. Immigration and Customs Enforcement of releasing the pair while Mariee was still sick.
Approved National Vetting Center Privacy, Civil Rights, and Civil Liberties Working Group Charter, established pursuant to National Security Presidential Memorandum-9, “Optimizing the Use of Federal Government Information in Support of the National Vetting Enterprise,” dated February 6, 2018. AILA Doc. No. 18112870
CBP Commissioner Kevin McAleenan conducted a call with media and released his opening remarks, “We will continue to monitor the situation closely. And while we seek to maintain lawful trade and travel to the maximum extent, we will be prepared to close San Ysidro again if….”AILA Doc. No. 18112762
DHS Secretary Nielsen issued a statement after CBP closed the San Ysidro port of entry on 11/25/18, stating “As I have continually stated, DHS will not tolerate this type of lawlessness and will not hesitate to shut down ports of entry for security and public safety reasons.” AILA Doc. No. 18112734
USCIS provided Q&As from a 11/15/18 teleconference on the continued expansion of the implementation process of the 6/28/18 NTA memorandum. AILA Doc. No. 18110836
I draw your attention to Elizabeth’s “Item 2” which is a lengthy, outstanding article by Dara Lind of Vox News on the fake, self-created “Trump Border Crisis.”
The only quibble I have with Dara’s article is the suggestion that there might be a need for more detention space. I say BS! Unquestionably, by working together with the UNHCR, the Mexican Government, and NGOs such as the ACLU, KIND, and the ABA, the DHS could find suitable placements for individuals waiting for credible fear interviews once they had passed a basic screening and background check.
Indeed, one of the key findings of a recent TRAC Report on Immigration Court Asylum Decisions is that 98.6% of asylum seekers appear in court for their decisions, win or lose! http://trac.syr.edu/immigration/reports/539/This stands in sharp contrast to the false claims by the Administration and its “bureaucratic mouthpieces” that asylum seekers “bolt” once they get into the country.
When given access to competent legal assistance and a chance to understand both the system and their obligations, almost all appear. Clearly, the Administration should be working with the private sector to get asylum seekers represented rather than undertaking cruel and overall futile and wasteful efforts to detain, deter, and punish them.
And how about some truthful narratives, rather than the bogus ones taken right out of the right-wing restrictionist playbook? Again, it’s past time for some Congressional oversight and accountability for the many falsehoods about immigration purveyed not only by the Trump politicos (like Sessions, Nielsen, Miller, et al.) but also by career officials who should know better. Indeed, in many cases, such as TPS and the Travel Ban, the Administration’s bogus narratives directly and demonstrably contradict the Government’s own information and recommendations by career officials with expertise in the areas. This shameful abuse of our civil service system and its expertise by biased, prejudiced, and unqualified politicos must stop.
And, as always, thanks Elizabeth for all you do for the New Due Process Army!
US judge rules against Trump administration in suit over policing grants to ‘sanctuary cities’
Updated 5:21 PM EST November 30, 2018
Washington
A federal judge ruled against the Justice Department on Friday in a lawsuit over withholding federal money from so-called sanctuary cities, the latest blow to the Trump administration’s hardline immigration tactics.
The lawsuit challenged the Justice Department’s efforts to punish sanctuary cities by withholding a key law enforcement grant the department said was available only to cities that complied with specific immigration enforcement measures.
In July 2017, then-Attorney General Jeff Sessions announced that applicants for Edward Byrne Memorial Justice Assistance Grants would have to comply with federal immigration enforcement in ways that were unlike years past, like allowing federal law enforcement agents to have access to detainees in jails for questioning about their immigration status.
According to the ruling, the seven states involved in the lawsuit, as well as New York City, had been receiving the grant money since Congress created the fund for the “modern version of the program in 2006,” and the funds “collectively totaled over $25 million.”
“In 2017, for the first time in the history of the program, the U.S. Department of Justice (‘DOJ’) and Attorney General (collectively, ‘Defendants’) imposed three immigration-related conditions that grantees must comply with in order to receive funding,” wrote Judge Edgardo Ramos, of the US District Court for the Southern District of New York, in his ruling.
New York Attorney General Barbara Underwood led the suit and was joined by New Jersey, Rhode Island, Connecticut, Massachusetts, Washington state and Virginia.
Underwood said in a statement on Friday that the ruling was “a major win for New Yorkers’ public safety.” CNN has reached out to the Justice Department for comment.
This isn’t the first ruling of its kind — in April, a panel of three judges from the 7th US Circuit Court of Appeals upheld a ruling in favor of the city of Chicago that blocked the Justice Department from adding new requirements for the policing grants.
A federal district court judge on Friday denied the Trump administration’s request to block or limit the scope of a ruling that temporarily prohibits the government from enforcing its ban on transgender people serving in the military.
Judge Colleen Kollar-Kotelly, a Clinton appointee on the U.S. District Court for the District of Columbia, said the court is not convinced the government will suffer irreparable harm without a stay of the court’s October 2017 preliminary injunction.
The government had asked for a stay pending any potential, future proceedings in the Supreme Court. Bypassing normal judicial order, the Department of Justice asked the Supreme Court last week to review the case before the D.C. Circuit Court of Appeals has ruled.
Arguments before the appeals court are scheduled for Dec. 10.
At the very least, the government asked the district court to limit the nationwide scope of the injunction while the court weighs in, but Kollar-Kotelly refused. She said the government had not convinced the court that a more limited injunction is appropriate.
“Without supporting evidence, defendants’ bare assertion that the Court’s injunction poses a threat to military readiness is insufficient to overcome the public interest in ensuring that the government does not engage in unconstitutional and discriminatory conduct,” she said.
“After all, ‘it must be remembered that all Plaintiffs seek during this litigation is to serve their nation with honor and dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation from family and friends, and to willingly make the ultimate sacrifice of their lives if necessary to protect the Nation, the people of the United States, and the Constitution against all who would attack them,’ ” she said.
Not surprisingly, policies stemming from racism and homophobia being advanced for crass political reasons aren’t doing very well in Federal Courts. There, the judges tend to prefer cogent legal arguments. The latter is something for which Gonzo was never known. Indeed, a number of the biased based positions he advanced in support of the Administration were so outlandish that the judges actually gave the Government additional time to develop a legal rationale. But, that also proved to be time wasted, because there never was any legal rationale for these policies and legal positions. Just hate and bias, and an ignorance of the real meaning of our Constitution.
There’s lots of irony, indeed total absurdity, in Sessions’s audaciously bogus claim that he “stood for the rule of law.” Safe to say that no Attorney General since “John the Con” Mitchell has done so much to undermine our Constitutional system and the real “rule of law.”
Etowah: the Ice detention center with the goal to ‘make your life miserable’
Campaign is under way to close Alabama facility routinely identified by advocates and detainees as one of the worst in US
Khushbu Shah in Gadsden, Alabama for The Guardian:
The Etowah Detention Center, an all-male facility housing about 300 detainees. Photograph: Adelante Alabama
During his detention in Gadsden, Alabama, Alex Matheus started losing his hair.
It wasn’t just that he was getting older, his hair was falling out in clumps from the stress and frustration of long-term detention in the custody of Immigration and Customs Enforcement (Ice).
“That’s very common in Etowah,” the 44-year-old Venezuelan said by telephone from his new, temporary home in Italy, where he is living as he seeks to return to the US.
Housed in the Gadsden county jail since the late 1990s, the gray slab of concrete that is the Etowah Detention Center, is routinely identified by lawyers, advocates and detainees as one of the worst Ice facilities in the United States. It has one of the longest detention times of all Ice facilities.
The all-male facility, housing on average 300 detainees according to Ice data, ranks sixth in the highest number of calls made to the Ice Detention Reporting and Information Line related to sexual and/or physical abuse incidents, according to a study from Freedom for Immigrants. Human Rights Watch documented the “spotty access to healthcare” at Etowah. There is a campaign run by civil, immigrant, and human rights organizations to shut down Etowah.
Alex Matheus the day he left Etowah. Photograph: The Guardian
Sitting next to the sheriff’s office in Gadsden, the detention facility stands out because of the barbed wire wrapped around the wall. There’s not much else around. The average income in town is just under $19,000 and more than a quarter of the community lives in poverty. This decade alone, the population has decreased 4%. So it makes sense the county would like to keep a multimillion dollar endeavor going.
Matheus spent 17 months in Etowah enduring the bare bones facilities. “They don’t have a yard. They don’t have recreational facilities. They don’t have libraries. They don’t have big common areas to hold people.” He wasn’t allowed outside its concrete walls, even for a short walk, for more than 500 days – until his deportation.
A Venezuelan asylum seeker, who had lived in the United States since 2000, Matheus broke commercial laws by shipping gas masks to the government opposition in his home country. He spent time in federal prison and on the day of his release, was taken straight to Ice custody, first at Stewart Detention Center in Lumpkin, Georgia, and then to Etowah.
Kenyan asylum seeker Sylvester Owino arrived at Etowah in 2013, after being in Ice custody for more than seven years in California and Arizona. As a “prolonged detainee”, little should have surprised the Kenyan asylum seeker about his latest detention center.
Protesters at Etowah. There is a campaign run by civil, immigrant, and human rights organizations to shut down the facility. Photograph: Adelante Alabama
But things were done differently in rural Alabama.
In his first weeks, he noticed officers manning the detention facility were selling contraband to detainees. Vodka in plastic water bottles for $50. Weed in letter-sized white envelopes for $400. Cell phones went for $300. Officers sold a pack of cigarettes for $100.
Then there were the bribes.
One day, an officer approached Owino, telling him he didn’t have lunch and asking Owino to make him something to eat. So the detainee used the ramen noodles he had bought through the commissary, and mixed it with tuna for the officer.
“You share the food so they gave you privileges. So instead of being locked down, they let you out. You give him honey buns, you make him coffee,” he said.
With his budget noodle offering, Owino said he was able to watch a soccer game.
The Guardian spoke with a number of detainees – and reviewed a number of lawsuits – who had spent recent months and years in the facility. All complained about the standard of nutrition. In March, Alabama’s al.com reported now-outgoing sheriff Todd Entrekin legally – through a loophole in state law – pocketed nearly $750,000 allocated for food provisions in the jail.
Months later, after national coverage and backlash, Governor Kay Ivey sent a memorandum to the state comptroller rescinding the validity of the law, no longer allowing food services allowances to be made to sheriff’s accounts directly.
A 2016 report from the Department of Homeland Security Office of Detention Oversight Compliance Inspection logged similar instances they called “deficiencies” in food and medical standards.
Ice said Etowah operates in accordance with its standards. “As far as facility conditions, all Ice facilities are subject to regular inspections, both announced and unannounced, and those inspections have repeatedly found the Etowah County Detention Center to operate in compliance with Ice’s rigorous national detention standards. The facility was most-recently inspected in July,” Ice spokesman Bryan Cox told the Guardian in an email.
The almost two years Owino spent in Etowah were the worst years of his detention, Owino said.
Matheus agreed. “When you are anyone in the US, you start to fight your case hard and they send you to Alabama to wear you out,” he said. “I spoke to one [officer] and the guy said, my job is basically to make your life miserable. He told me that straight to my face”
The Etowah County Sheriff’s Office would probably like to change that perception. On a recent Guardian visit to the facility, Captain Mike O’Bryant introduced Jose Alfredo Reyes, 40, who has been in the facility for more than 18 months and had already agreed to an interview.
Reyes had nothing bad to say about the facility, except the lack of sunlight and mediocre food. “I told the captain, don’t worry, I won’t say nothing bad about you!” he said.
According to Christina Mansfield, the co-executive director of Freedom for Immigrants, ‘Etowah is one of the worst immigrant jails in the country.’ Photograph: Adelante Alabama
Advertisement
According to Christina Mansfield, the co-executive director of Freedom for Immigrants, “Etowah County Detention Center is one of the worst immigrant jails in the country. For years we have been documenting and drawing attention to abuses – such as physical assault and medical neglect – at the hands of the sheriff’s office and Ice. Several detained individuals and our volunteers have even been retaliated against for speaking out against these intolerable conditions. It’s time for Etowah to be shut down.”
Cox, in response to the allegations outlined in this story, said: “The allegations you’ve received are contradicted by the inspection findings of numerous entities that include independent third-party inspectors.”
Etowah sheriff’s office did not respond to the Guardian’s request for comments on the allegations put forth by former detainees and activists.
Matheus never had his wife visit from Florida because he said it didn’t make sense for her to visit for 20 minutes and still only talk through a video link.
He was deported in May 2017, back to Venezuela, where he was immediately detained. “They knew everything about me. They had a full folder against me. The US government provided everything to them. I had to pay [a bribe of] thousands of dollars to be released.”
Owino had the same experience as Kenyan authorities have also received his asylum application and related documents. He is out on bond in California, with a hearing coming up in the coming months for his asylum case.
Matheus left Venezuela in early October to seek citizenship in Italy, the home of his grandparents. Now he lives alone, holding onto receding hope he may be able to return to the United States as his case is fought in court. He lives alone, in a small apartment in Calabria, away from his wife in Florida – whom he hasn’t seen in nearly a year. The impact of his time in Etowah remains with him.
“People forget you were a real person, a family guy, a regular person. Basically, you are going back to society and you are supposed to function as a normal person again. The problem with these places is that they dehumanize you so much. They hinder everything. They screw your life,” he said.
************************************************
These are the kinds of abuses that happen when we enable the DHS/ICE “New American Gulag.” It’s time for some oversight and a major reduction in the funds allocated for unnecessary and inhumane immigration detention. It’s also past time for Congress to repeal so-called “mandatory indefinite detention” (before it is held to be unconstitutional).
The House GOP’s near-total abdication of any oversight role has done more than just shield President Trump on matters involving his finances and Russian collusion. It has also resulted in almost no serious scrutiny of the true depths of cruelty, inhumanity and bad-faith rationalization driving important aspects of Trump’s policyagenda — in particular, on his signature issue of immigration.
That’s about to change.
In an interview with me, the incoming chairman of the House Homeland Security Committee vowed that when Democrats take over in January, they will undertake thorough and wide-ranging scrutiny of the justifications behind — and executions of — the top items in Trump’s immigration agenda, from the family separations, to the thinly veiled Muslim ban, to the handling of the current turmoil involving migrants at the border.
“We will visit the border,” Rep. Bennie Thompson (D-Miss.), who is expected to chair the committee, which has jurisdiction over the Department of Homeland Security, told me. “We will hold hearings in committee on any and all aspects of DHS. … We will not back off of this issue.”
This oversight — which could result in calling for testimony from Stephen Miller, the architect of Trump’s immigration agenda — will include scrutiny of the administration’s justifications for its policies. Importantly, Thompson tells me Democrats will seek to grill officials on what went into Trump’s public statements on various aspects of the issue, many of which are falsehoods.
Migrant caravan crisis escalates with tear gas at border fence
U.S. authorities fired tear gas at members of a Central American migrant caravan who had rushed the fencing along the U.S. border with Mexico on Nov. 25.(Video: Drea Cornejo , Blair Guild/Photo: Kim Kyung-Hoon/Reuters/The Washington Post)
To be clear, Trump has used these rationales to justify actual policies with real-world impact, such as the effort to cruelly restrict asylum-applications to only official points of entry. Trump has also threatened a total border shutdown. Hearings could reveal that the justifications are nonsense, and spotlight their true arbitrary and cruel nature (putting aside for now that their real motive is ethno-nationalism).
“All this innuendo we hear about criminals coming in the caravan, we just want to know, how did you validate this?” Thompson told me, adding that DHS officials would be called on in hearings to account for Trump’s claims. “Policy has to be backed up with evidence. So we will do rigorous oversight.”
This will also include a look at the recent tear-gassing of migrants, and the administration’s public statements about it and justifications, Thompson said. Homeland Security Secretary Kirstjen Nielsen has defended the fact that tear gas appears to have impacted children by claiming they were used as “human shields.”
The use of the military as a prop
Thompson said such scrutiny could dovetail with an examination of Trump’s use of the military at the border as campaign propaganda, though that might involve the House Armed Services Committee. “We have to get full disclosure in a public setting or a classified setting,” Thompson said. “Under no circumstances will we not get information.”
The overall goal, Thompson said, will be this: “As a nation of immigrants ourselves, we want to make sure that our process of immigration that includes asylum-seekers is constitutional and represents American values.”
Family separations and the travel ban
Thompson told me the committee would also look at the process leading up to the travel ban, which proceeded despite the fact that two internal Homeland Security analyses undercut its national security rationale.
Democrats can demand that DHS officials justify that policy. “What did you use to come up with this travel ban? How did you select these countries?” Thompson said, previewing the inquiry and vowing subpoenas if necessary. “We will ask for any written documentation that went towards putting the ban in place, what individuals were consulted, and what the process consisted of.”
Thompson also said the run-up to the implementation of the family separation policy and its rationale would receive similar scrutiny, as well as at the conditions under which children have been held, such as the reported Texas “tent city.” “Somebody is going to have to come in and tell us, ‘Is this the most efficient way to manage the situation?’” Thompson said. But also: “How did we get here in the first place?”
What can Democrats do?
One big question: What will House Democrats do legislatively against such policies? Thompson told me the goal is to secure cooperation with DHS, but in cases where the agency continues policies that Democrats deem terribly misguided or serious abuses, they can try to legislate against them. That would run headlong into Trump and the GOP-controlled Senate, at which point one could see discussion of targeted defunding of certain policies, though whether that will happen or what that might look like remains to be seen.
“As far as I’m concerned, no option is off the table,” Thompson said. Some more moderate House Democrats who won tougher districts might balk at such a stance, but Thompson said: “Every committee has responsibilities, and we have to carry them out.”
The big story here is that Trump has relied on the outright dismissal of his own administration’s factual determinations to justify many policies, not just on immigration, but also with his drive to weaken efforts to combat global warming despite the big report warning of the dire threats it poses.
The administration will strenuously resist Democratic oversight, and I don’t want to overstate what it can accomplish. But House Democrats must at least try to get into the fight against Trump’s war on facts and empiricism wherever possible. And when it comes to the humanitarian crises Trump has wrought on immigration, this is particularly urgent.
*********************************
Finally, some much-needed, long-overdue accountability, fact-finding, and truth about Trump’s intentionally cruel and usually lawless immigration policies and those sycophants and toadies who implement them and egg him on. No, it won’t necessarily change things overnight. But, having some “pushback” and setting the factual record straight for further action is an important first step. And, I hope that the absolutely avoidable politically created mess in the U.S. Immigration Courts, and their disgraceful abandonment of Due Process as their sole focus, is high on the oversight list!
Decency — that’s the first word that comes to mind when thinking of George H.W. Bush. He was a decent, self-effacing, funny, nice man. And he brought those traits to the presidency.
In a long interview I conducted with him as part of a series on former presidents reflecting on the Constitution, he said something like “I don’t want to namedrop” at several points, when telling a story about visiting his own son in the White House. When recounting an anecdote about the fall of the Soviet Union, which he helped engineer, he would say, “I don’t want to brag.”
He took very much to heart his mother’s dictum to “be a good sport,” and not blame others for your own shortcomings. He said he thanked God for that motherly advice when he suffered defeat in 1992 because “it hurts to lose, it feels wonderful to win.”
SLIDESHOW: Photos:George H. W. Bush through the years
It was tough for Bush to score many wins in his presidency as he faced a Congress run by a large and increasingly partisan Democratic majority. He did squeak out votes of approval to use the U.S. military to drive Saddam Hussein out of Kuwait and felt strongly that it would have been wrong to pursue the invader back to Baghdad.
Taking issue with the “Monday morning quarterbacks” who questioned that decision, he stated firmly, “I don’t believe in mission creep and I don’t believe in going back on your word to Congress and I don’t believe in going back on your word to the United Nations.”
Greg Mathieson/REX/Shutterstock
Decency.
Bush disagreed often with members of Congress, but he never demonized them. Many were his friends. One of his best buddies was Bob Strauss, a fellow Texan, who served as Chairman of the Democratic National Committee, while Bush held the same role at the Republican National Committee.
It was during the Watergate scandal and Bush thought he deserved combat pay, “it was the worst job in the world.”
Strauss called him and told him that his position was like “making love to a gorilla,” the former president told me in the cleaned-up version.
“You can’t stop until the gorilla wants to.” The party chairman soon found himself faced with the dicey task of advising the Republican president to resign. It was the decent thing to do.
Gregory Rec/Portland Press Herald via Getty Images, file
When the Soviet Union disintegrated, Bush appointed Strauss as the first ambassador to the new Russia though, as the Democrat told the president, he had never voted for him for anything.
In those difficult years in the White House Bush knew there was one person who always had his back — his wife Barbara. When I said to him that first ladies are often unsung heroes he laughed, “She’s sung. And you know what the boys call her? The Enforcer, even the president calls her that.”
Reveling in the fact that his wife was “100 percent behind anything I did,” Bush did admit that he was reamed out for loudly declaring that he hated broccoli, though his stance “liberated every 4 year old.”
The affection that the Bushes felt for each other in their 73 year marriage heartened the nation when Mrs. Bush died but it was not just her affection that her husband appreciated, it was also her wisdom. Presidential wives “play a very influential role…they can make an enormous difference,” according to the husband of one First Lady and the father-in-law of another.
In his long career serving the country, President Bush came to know many of the people who chose his path. His view: “I believe public service is a noble calling and most members of Congress are honorable people.” He added, “I’ve found that most people serve for the right reasons.”
He certainly did, whether you agree or disagree with his policies, he served because he thought it was the right thing, the decent thing, for a dedicated American citizen to do.
Although one meritorious argument is enough to satisfy the first Nken factor, Mr. Duran- Ortega’s emergency motion for a stay presents a second, equally compelling argument that the agency’s in abstentia removal order must be rescinded in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018). The governing statute, 8 U.S.C. § 1229(a)(1)(G)(i), requires that a notice to appear (“NTA”) “specify[] . . . [t]he time and place at which the proceedings will be held.” Once a charging document, such as an NTA, is filed with the immigration court, the court may then exercise jurisdiction over a petitioner’s removal proceedings. See 8 C.F.R. § 1003.14 (“Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service.” (emphasis added)). The Supreme Court’s recent decision in Pereira appears to suggest, as Duran-Ortega argues, that self-described “notice to appears” issued without a time and place are not, in fact, notice to appears within the meaning of § 1229. 138 S. Ct. at 2113–14. In particular, Pereira emphasized that § 1229 “does not say a ‘notice to appear’ is ‘complete’ when it specifies the time and place of the removal proceedings.” Id. at 2116. “Rather,” the Supreme Court explained, § 1229 “defines a ‘notice to appear’ as a ‘written notice’ that ‘specifies,’ at a minimum, the time and place of the removal proceedings.” Id. (alteration omitted) (emphases added). In other words, just as a block of wood is not a pencil if it lacks some kind of pigmented core to write with, a piece of paper is not a notice to appear absent notification of the time and place of a petitioner’s removal proceedings.
Pereira’s reasoning has led some district courts to conclude that a self-styled “notice to appear” lacking the requisite time and place of the hearing is legally insufficient to vest an immigration court with jurisdiction. See, e.g., United States v. Zapata-Cortinas, 2018 WL 4770868, at *2–3 (W.D. Tex. 2018); United States v. Virgen-Ponce, 320 F.Supp.3d 1164, 1166 (E.D. Wash. 2018). Other district courts have disagreed. See, e.g., United States v. Romero- Colindres, 2018 WL 5084877, at *2 (N.D. Ohio 2018). Most recently, the BIA issued a published decision holding that a defective NTA is sufficient to vest jurisdiction in an immigration court “so long as a notice of hearing specifying this information [on time and date] is later sent to the alien.” Matter of Bermudez-Cota, 27 I. & N. Dec. 441, 447 (BIA 2018). This Court, however, need not defer to Bermudez-Cota if the agency’s holding is based on an unreasonable interpretation of the statutes and regulations involved, or if its holding is unambiguously foreclosed by the law. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–45, 104 S. Ct. 2778, 2782–83 (1984); see also Auer v. Robbins, 519 U.S. 452, 461, 117 S. Ct. 905, 911 (1997). In light of Pereira and the various regulations and statutes at issue here, it may well be the case that deference is unwarranted.
As a result, it is clear to me that Mr. Duran-Ortega has presented “a substantial case on the merits” sufficient to satisfy the first Nken factor, given the other three factors “weigh[] heavily in favor of granting the stay.” Ruiz v. Estelle, 650 F.2d 555, 565–66 (5th Cir. Unit A 1981).2
The 11th U.S. Circuit Court of Appeals granted a stay of removal today for Spanish-language journalist Manuel Duran.
Without the stay, Duran – who was unlawfully arrested and detained in retaliation for reporting on controversial issues related to law enforcement in Tennessee – could have been deported at any time.
Earlier this month, the court granted a temporary, two-week stay that expired today. The stay that the court issued today will remain in place until Duran’s appeal has concluded.
“We are grateful and pleased that the court acted to stay Mr. Duran’s deportation so that his appeal may be fully heard,” said Kristi Graunke, senior supervising attorney for the SPLC. “As a journalist who has dedicated his career to reporting on government misconduct, Mr. Duran faces serious danger if he is deported to El Salvador. We will continue to fight for his freedom and to ensure he receives a fair hearing on his asylum claims.”
Duran has been detained for over seven months at LaSalle Detention Facility in Jena, Louisiana, after working as a reporter in Memphis, Tennessee, for more than 10 years. The SPLC took his case after he was placed in Immigration and Customs Enforcement (ICE) custody following his arrest by Memphis police in April.
Duran is a respected reporter who wrote for the Spanish-language publication he founded: Memphis Noticias. He was known for his investigative journalism. His work frequently highlighted issues of importance to Memphis’ Spanish-speaking community, including local law enforcement’s collaboration with ICE.
On April 3, Duran was covering a Memphis event relating to the 50th anniversary of Martin Luther King Jr.’s assassination. The demonstration included a protest of local law enforcement’s practice of detaining suspected immigrants and handing them over to ICE.
During the event, Duran wore his yellow press badge and did not engage in the protest. He was following police orders to step away from the protesters when an officer pointed to him and yelled, “Get him, guys.”
Because his reporting exposed ties between local police and ICE in detaining immigrants, Duran was singled out and arrested amid a pool of other journalists covering the protest. He was falsely accused of disorderly conduct and obstructing traffic.
Duran is like thousands of other immigrants facing deportation, who face lengthy detention even if they have meritorious claims. Held captive in detention centers for months and sometimes years, they are forced to endure terrible conditions and separation from loved ones and their communities.
**********************************************
As Attorney General, Jeff “Gonzo Apocalypto” Sessions used every tool at his disposal to destroy Due Process in the U.S. Immigration Courts, discriminate against asylum seekers and their (often pro bono) hard-working lawyers, and artificially “jack up” the court backlog to increase pressure on Immigration Judges to cut corners and ultimately to collapse the system entirely (thus, presumably, leading to calls for an unconstitutional “summary removal system” without any court hearings). I estimate that 75% to 80% of the cases in the current 1.1 million “backlog” (largely the result of management interference by DOJ politicos over the past three Administrations leading to “Aimless Docket Reshuffling”) were probably commenced in violation of the Supremes’ “Pereira reading” of required statutory notice.
Ironically, Sessions’s “gonzo-like” fixation on ruining the system and punishing migrants, rather than taking the reasonable steps necessary to improve Due Process and efficiency, could have the effect of drastically cutting the backlog by removing the vast majority of “backlogged” cases from the docket without compromising anyone’s Due Process. And, once off the docket, most of those cases, which represent long-time residents with good character and substantial equities, should properly remain off-docket pending a Congressional legalization program. That would actually rationalize the system and enable the enlarged Immigration Court to “keep current” on a more realistic and appropriate docket of 200,000 to 300,000 new cases per year (provided the Immigration Court is removed from the DOJ and put under independent, professional, apolitical court management stemming from the judges themselves).
Another notable point — by allowing itself to make decisions based on politically preferred outcomes, typically anti-immigrant, rather than sound and fair legal reasoning, the BIA is rapidly depriving its decisions of so-called “Chevron deference” from the Article III (“real”) Courts.
Hamed Aleaziz reports for BuzzFeed News, quoting extensively from “Our Gang” Leader Hon. Jeffrey Chase:
WASHINGTON — Homeland Security and Justice Department officials are feuding over a controversial plan that would force asylum-seekers at the southwestern border to remain in Mexico until their cases are decided, according to sources close the administration.
Department of Justice officials have been pushing for asylum-seekers at the border to be immediately returned to Mexico as they arrive at the border, instead of first undergoing screening for fear of persecution or torture if they are not allowed in.
Department of Homeland Security officials want asylum-seekers screened for persecution, torture, and fear before being immediately returned to Mexico, to ensure that there are no serious concerns for their safety in Mexico.
The dispute highlights the fact that key details regarding the plan are still up in the air.
A Justice Department official said there was no dispute over the screening process but that the matter was under consideration between both agencies. The official said the discussion between the two US departments were “a normal part of the process.” DHS declined to comment.
Jeffrey Chase, a former immigration judge, said the dispute goes to the very heart of asylum law, which grants foreigners who otherwise would not be admissible the right to enter the country if they can show that they have a “credible fear” of persecution if they are returned to the country they came from.
“‘Credible fear’ was created over 20 years ago to be the standard for those arriving and not deemed admissible. It was designed to be a low bar, as those at the border have just arrived, are often scared of government officials, are sometimes traumatized, usually don’t yet have legal counsel, and have very limited ability to gather evidence,” Chase told BuzzFeed News. “Imposing a higher standard for political purposes would be contrary to our treaty obligation to not return genuine refugees.”
BuzzFeed News reported earlier this month that the administration had been considering such a plan and that discussions with Mexico had been ongoing. The Washington Post reported last week that a deal had been agreed upon with Mexico and that asylum-seekers would remain in that country while their cases were being adjudicated. But that story was later denied by Mexican officials, and the status of any talks is uncertain. A new administration takes office in Mexico on Saturday.
The proposal was first focused on individuals who come to a port of entry to request asylum but has since been extended to include those apprehended between border crossings as well, sources said.
The discussions appear to be a renewed effort to implement a directive first raised in an executive order that President Donald Trump signed in the early days of his administration in 2017. The Mexican government publicly rejected that plan, and the Trump administration made no effort to implement the president’s instructions.
In the executive order, Trump had directed the Department of Homeland Security Secretary to pursue the option. In a memo written by then-DHS chief John Kelly, officials were told to return individuals at the border “to the extent appropriate and reasonably practicable.” Kelly cited a statute that states that certain individuals can be sent back to the contiguous country they arrived from.
Advocates have said that implementation of such a measure would put families and migrants in danger and would be quickly challenged in court.
************************************
Well said, Jeffrey! There was a day, obviously in the past, when DOJ lawyers were concerned with assuring compliance with the law and applicable court decisions, rather than thinking of various ways to “push the envelope” by engaging in facially illegal, and certainly immoral, conduct. Hopefully, such evasion of both their oaths of office and ethical standards will be considered by future employers in the private sector.
The irony here is that with a different Administration in place, cooperation among the U.S., Mexico, and the UNHCR in ways that strengthened the Mexican asylum system, improved conditions for refugees and asylees in Mexico, encouraged regular refugee processing by both countries in or near the Northern Triangle, improved reception and processing for those at the U.S. border, and most important, constructively addressed the problems in the Northern Triangle forcing folks to flee would be a win-win-win-win for all involved.
The flow of refugees from the Northern Triangle is primarily a humanitarian, not a law enforcement situation. Among other things, a humanitarian approach would promote advantages of applying in Mexico and reasons why it could be a rational choice for some asylum seekers; it would eschew illegal threats, cynically and intentionally created inhumane, even life-threatening, conditions, and improper sanctions to “deter” individuals from asserting their legal rights to apply for asylum in the U.S. under both our law and international law. Sadly, all of the latter are exactly what the Trump Administration is engaged in at present, with the assistance of their ethically-challenged Government “legal” team.
