WELL, THAT DIDN’T TAKE LONG: After Enjoining the Regime’s “Let ‘Em Die in Mexico” Program On Friday, 9th Cir. Appeals Panel Later “Suspends” Its Order Pending Further Responses From The Parties — Gov’s Illegal Abuse of Asylum Seekers Allowed to Continue for Now!

https://apple.news/AdZkiR13zQPmHAlPE8ZIKXw

Elliott Spagat reports for AP:

SAN DIEGO (AP) — A 9th U.S. Circuit Court of Appeals panel voted unanimously Friday to suspend an order it issued earlier in the day to block a central pillar of the Trump administration’s policy requiring asylum seekers to wait in Mexico while their cases wind through U.S. courts.

The three-judge panel told the government to file written arguments by the end of Monday and for the plaintiffs to respond by the end of Tuesday.

The Justice Department said at least 25,000 asylum seekers subject to the policy are currently waiting in Mexico and expressed “massive and irreparable national-security of public-safety concerns.”

Government attorneys said immigration lawyers had begun demanding that asylum seekers be allowed in the United States, with one insisting that 1,000 people be allowed to enter at one location.

“The Court’s reinstatement of the injunction causes the United States public and the government significant and irreparable harms — to border security, public safety, public health, and diplomatic relations,” Justice Department attorneys wrote.

Customs and Border Protection had already begun to stop processing people under the policy.

ACLU attorney Judy Rabinovitz called the suspension of Friday’s order “a temporary step.”

“We will continue working to permanently end this unspeakably cruel policy,” she said.

. . . .

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

Read the full report at the link.

Remember what I said in my post yesterday: “But, hold the ‘victory dance.’” It’s not over till it’s over. And this one might not be over until the regime sends the last asylum seeker to death or into harm’s way, thereby achieving their “ultimate deterrent” at the expense of human lives and the rule of law.

Of course, the Government’s health, national security, and public safety concerns are phony as a three-dollar bill. But, that might or might not make any difference.

Stay tuned.

PWS

02-29-20

BARR TO HIS WHOLLY OWNED IMMIGRATION JUDGES: Just Deny CAT Protection – Any Ol’ Ground Will Do – Matter of R-A-F-, 27 I&N Dec. 778 (A.G. 2020)

https://www.justice.gov/eoir/page/file/1252416/download

Matter of R-A-F-, 27 I&N Dec. 778 (A.G. 2020)

EOIR HEADNOTES:

(1) The Board of Immigration Appeals should consider de novo the application of law to the facts of this case, including whether the deprivations that the respondent would be likely to encounter upon removal to Mexico would constitute “torture” within the meaning of the Department of Justice regulations implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into force for United States Nov. 20, 1994).

(2) To constitute “torture” under these regulations, an act must, among other things, “be specifically intended to inflict severe physical or mental pain or suffering.” 8 C.F.R. § 1208.18(a)(5). “‘[T]orture’ does not cover ‘negligent acts’ or harm stemming from a lack of resources.” Matter of J-R-G-P-, 27 I&N Dec. 482, 484 (BIA 2018) (citing Matter of J-E-, 23 I&N Dec. 291, 299, 301 (BIA 2002)).

(3) To constitute “torture,” an act must also be motivated by “such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind.” 8 C.F.R. § 1208.18(a)(1).

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

Actually, contrary to Billy Barr’s unethical “precedent,” the BIA “panel” in this case consisting of (now retired) Appellate Immigration Judge Linda Wendtland got this one completely right, as did the Immigration Judge.

Admittedly, this respondent isn’t a particularly sympathetic character. But, that’s totally irrelevant in a CAT deferral of removal case, where protection is mandatory if the respondent faces torture with Government acquiescence.

Let’s just take a cursory look at the publicly available information on what happens to mentally ill individuals in Mexico.

The Nightmare That Is Mexico’s Mental Health System

Published by Ariel Jacoby on Friday, April 15, 2016 | Features

Though there are an estimated 10 million people with mental, visual, hearing or motor disabilities living in Mexico, the country’s mental health system is so dysfunctional that the unlucky patients under its care are colloquially referred to as “abandanodos” – abandoned ones.

It’s an accurate description for these lost souls. A 93-page report from Disability Rights International revealed the horrific living conditions at Mexican mental health facilities, which are a breeding ground for human rights violations and abuse of the handicapped patients that these institutions are meant to help. Many patients never received a clinical diagnosis of their condition and don’t have families to give them private care – these patients remain locked inside the hospitals indefinitely and become completely anonymous to the world.

Patients rock back and forth in urine soaked clothes or walk about soiled, feces-smeared floors without shoes. Bedsheets are an uncommon luxury; hygiene is an abstract concept in a Mexican mental hospital where some “patients and their caretakers could not fully explain how or why they were institutionalized” (New York Times). Without proper oversight and the absence of any sort of registry system, it is not uncommon for mentally ill children to literally disappear from Mexican mental health facilities with no record of their name, age, or families.

In this dismal hole of human despair, atrocities are ubiquitous and plentiful. Many of the patients in these institutions have been detained against their will for years and will likely languish inside the walls of these torture chambers until their death. Psychotropic drugs are excessively relied upon to treat patients and the more aggressive patients who don’t respond to medication can be subject to forced lobotomies, which need only the approval of the facility director. Eric Rosenthal, the director of Disability Rights International, found that 1/4 of the mental health facilities were keeping patients in restraints for extended periods of time – an act that violates Article 1 of the United Nations convention against torture.

The concept of human rights has no real meaning or significance in these unregulated, inhumane environments. The investigation conducted by DRI revealed the severity and frequency of human rights violations within the walls of such state-run facilities. In one institution, a terrified blind patient admitted to being raped by one of the staff members – a claim that was quickly dismissed by Mexican officials. In another facility, investigators discovered two young women who had been institutionalized at a young age, grew up in the hospital, and had been working as unpaid laborers for years. There exists no record of how or why these women were institutionalized and Mexican law requires no legal review to detain them indefinitely as modern-day slave laborers.

The director of Samuel Ramirez Hospital, one of the 31 state-run mental health facilities in Mexico, calls his own hospital “hell” and has voiced his belief that the mental health of every patient at his facility have been made worse by their institutionalization. He blames the lack of proper funding and a deficiency of properly trained personnel – at a different mental institution nearby, there are only two psychologists and one doctor to treat the 365 patients who have been institutionalized there.

The sad state of Mexico’s mental health system can be traced back to its government’s complex and deep-rooted political issues. Mexico’s budget for mental health makes up about 2.5% of its overall health spending. This is an improvement from the paltry 1.6% allocated to mental health a decade ago, but still significantly lower than the WHO’s recommendation of 10%. Without a significant electorate of mental health advocates, mental health lacks any real political sway in Mexico. Back in 2006, Mexico was among 96 countries who ratified the United Nations Convention on the Rights of Persons with Disabilities. But it is clear that not much has changed within the system itself.

https://www.medelita.com/blog/the-nightmare-that-is-mexicos-mental-health-system/

Mexico isn’t Haiti or some other “poor country.” It’s the 15^th largest economy in the world. The allocation of a paltry 2-3% of spending on mental health is an intentional embrace of torture by the Mexican Government that relates directly to the dehumanized place of the mentally ill in Mexican society. A Mexican national being deported from the U.S. with a criminal record would very likely receive the “worst of the worst” – not “negligently” but very intentionally. Clearly,. the torture and punishment of the mentally ill just because they are mentally ill is “any reason based on discrimination of any kind.” I give this respondent 90 days max until he’s tortured to death if returned to Mexico. The conditions requiring mandatory deferral of removal under CAT have clearly been met.

Judge Wendtland was right. Barr is “dead” wrong. But, Billy’s message to his subordinates is clear: Forget the law: deny, deny, deny!

The system is broken. Removal of the Immigration Courts from the DOJ and the end of the ability of unqualified immoral politicos like Billy Barr to interfere in the judicial system in derogation of Constitutional Due Process is essential to the survival of our democracy.

Due Process Forever; Billy Barr Never!

PWS

02-29-20

FINALLY: SPLIT 9TH CIR PANEL ENTERS NATIONWIDE INJUNCTION AGAINST “LET ‘EM DIE IN MEXICO” A/K/A “MIGRANT ‘PROTECTION’ PROTOCOLS” — Innovation Law Lab v. Wolf

9thMPPInjunction

Innovation Law Lab v. Wolf, 9th Cir., 02-28-20, published

PANEL: Ferdinand F. Fernandez, William A. Fletcher, and Richard A. Paez, Circuit Judges.

OPINION BY: Judge William A. Fletcher

DISSENTING OPINION: Judge Ferdinand F. Fernandez

KEY QUOTE FROM MAJORITY:

In addition to likelihood of success on the merits, a court must consider the likelihood that the requesting party will

INNOVATION LAW LAB V. WOLF 49

suffer irreparable harm, the balance of the equities, and the public interest in determining whether a preliminary injunction is justified. Winter, 555 U.S. at 20. “When the government is a party, these last two factors merge.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).

There is a significant likelihood that the individual plaintiffs will suffer irreparable harm if the MPP is not enjoined. Uncontested evidence in the record establishes that non-Mexicans returned to Mexico under the MPP risk substantial harm, even death, while they await adjudication of their applications for asylum.

The balance of equities favors plaintiffs. On one side is the interest of the Government in continuing to follow the directives of the MPP. However, the strength of that interest is diminished by the likelihood, established above, that the MPP is inconsistent with 8 U.S.C. §§ 1225(b) and 1231(b). On the other side is the interest of the plaintiffs. The individual plaintiffs risk substantial harm, even death, so long as the directives of the MPP are followed, and the organizational plaintiffs are hindered in their ability to carry out their missions.

The public interest similarly favors the plaintiffs. We agree with East Bay Sanctuary Covenant:

On the one hand, the public has a “weighty” interest “in efficient administration of the immigration laws at the border.” Landon v. Plasencia, 459 U.S. 21, 34 (1982). But the public also has an interest in ensuring that “statutes enacted by [their] representatives”

50 INNOVATION LAW LAB V. WOLF

are not imperiled by executive fiat. Maryland v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J., in chambers).

932 F.3d at 779 (alteration in original).

VII. Scope of the Injunction

The district court issued a preliminary injunction setting aside the MPP—that is, enjoining the Government “from continuing to implement or expand the ‘Migrant Protection Protocols’ as announced in the January 25, 2018 DHS policy memorandum and as explicated in further agency memoranda.” Innovation Law Lab, 366 F. Supp. 3d at 1130. Accepting for purposes of argument that some injunction should issue, the Government objects to its scope.

We recognize that nationwide injunctions have become increasingly controversial, but we begin by noting that it is something of a misnomer to call the district court’s order in this case a “nationwide injunction.” The MPP operates only at our southern border and directs the actions of government officials only in the four States along that border. Two of those states (California and Arizona) are in the Ninth Circuit. One of those states (New Mexico) is in the Tenth Circuit. One of those states (Texas) is in the Fifth Circuit. In practical effect, the district court’s injunction, while setting aside the MPP in its entirety, does not operate nationwide.

For two mutually reinforcing reasons, we conclude that the district court did not abuse its discretion in setting aside the MPP.

INNOVATION LAW LAB V. WOLF 51

First, plaintiffs have challenged the MPP under the Administrative Procedure Act (“APA”). Section 706(2)(A) of the APA provides that a “reviewing court shall . . . hold unlawful and set aside agency action . . . not in accordance with law.” We held, above, that the MPP is “not in accordance with” 8 U.S.C. § 1225(b). Section 706(2)(A) directs that in a case where, as here, a reviewing court has found the agency action “unlawful,” the court “shall . . . set aside [the] agency action.” That is, in a case where § 706(2)(A) applies, there is a statutory directive—above and beyond the underlying statutory obligation asserted in the litigation—telling a reviewing court that its obligation is to “set aside” any unlawful agency action.

There is a presumption (often unstated) in APA cases that the offending agency action should be set aside in its entirety rather than only in limited geographical areas. “[W]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that rules are vacated—not that their application to the individual petitioners is proscribed.” Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F3d 476, 511 (9th Cir. 2018) (internal quotation marks omitted). “When a court determines that an agency’s action failed to follow Congress’s clear mandate the appropriate remedy is to vacate that action.” Cal. Wilderness Coalition v. U.S. Dep’t of Energy, 631 F.3d 1072, 1095 (9th Cir. 2011); see also United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019) (“The ordinary practice is to vacate unlawful agency action.”); Gen. Chem. Corp. v. United States, 817 F.2d 844, 848 (D.C. Cir. 1987) (“The APA requires us to vacate the agency’s decision if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .”).

52 INNOVATION LAW LAB V. WOLF

Second, cases implicating immigration policy have a particularly strong claim for uniform relief. Federal law contemplates a “comprehensive and unified” immigration policy. Arizona v. United States, 567 U.S. 387, 401 (2012). “In immigration matters, we have consistently recognized the authority of district courts to enjoin unlawful policies on a universal basis.” E. Bay Sanctuary Covenant, 932 F.3d at 779. We wrote in Regents of the University of California, 908 F.3d at 511, “A final principle is also relevant: the need for uniformity in immigration policy. . . . Allowing uneven application of nationwide immigration policy flies in the face of these requirements.” We wrote to the same effect in Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017), rev’d on other grounds, 138 S. Ct. 2392 (2018): “Because this case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights.” The Fifth Circuit, one of only two other federal circuits with states along our southern border, has held that nationwide injunctions are appropriate in immigration cases. In sustaining a nationwide injunction in an immigration case, the Fifth Circuit wrote, “[T]he Constitution requires ‘an uniform Rule of Naturalization’; Congress has instructed that ‘the immigration laws of the United States should be enforced vigorously and uniformly’; and the Supreme Court has described immigration policy as ‘a comprehensive and unified system.’” Texas v. United States, 809 F.3d 134, 187–88 (5th Cir. 2015) (emphasis in original; citations omitted). In Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017), we relied on the Fifth Circuit’s decision in Texas to sustain the nationwide scope of a temporary restraining order in an immigration case. We wrote, “[W]e decline to limit the geographic scope of the TRO. The Fifth Circuit has held that such a fragmented immigration policy would run afoul of the

INNOVATION LAW LAB V. WOLF 53 constitutional and statutory requirement for uniform

immigration law and policy.” Id. at 1166–67. Conclusion

We conclude that the MPP is inconsistent with 8 U.S.C. § 1225(b), and that it is inconsistent in part with 8 U.S.C. § 1231(b). Because the MPP is invalid in its entirety due to its inconsistency with § 1225(b), it should be enjoined in its entirety. Because plaintiffs have successfully challenged the MPP under § 706(2)(A) of the APA, and because the MPP directly affects immigration into this country along our southern border, the issuance of a temporary injunction setting aside the MPP was not an abuse of discretion.

We lift the emergency stay imposed by the motions panel, and we firm the decision of the district court.

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

At last, a breath of justice in halting, at least temporarily, an outrageously illegal program that is also a grotesque violation of our national values and humanity. Unfortunately, it has already resulted in thousands of injustices and damaged many lives beyond repair. That’s something that a clueless shill for authoritarianism, wanton cruelty, and abrogation of the rule of law like dissenting Judge Fernandez might want to think about.

But, hold the “victory dance.” The regime will likely seek “rehearing en banc,” appealing to other enablers of human rights atrocities like Fernandez. And, if the regime fails there, they always can “short circuit” the legal system applicable to everyone else by having Solicitor General Francisco ask his GOP buddies on the Supremes, “The JR Five,” to give the regime a free pass. As Justice Sotomayor pointed out, that type of “tilt” has already become more or less “business as usual” as the regime carries out its nativist, White Nationalist immigration agenda. Indeed, Justices Gorsuch and Thomas have already announced their eagerness to carry the regime’s water for them by doing away with nationwide injunctions, even though they are the sole way for doing justice in immigration cases like this.

But, at least for today, we can all celebrate a battle won by the New Due Process Army in the ongoing war to restore our Constitution, the rule of law, and human dignity.

Due Process Forever!

PWS

02-29-20

EOIR’S LATEST RIPOFF: As “Justice” In Immigration Court Becomes A “Clown Show,” The Price Of A Ticket to “The Big Top” Will Rise By Nearly 1000%!🤡🤡

https://www.axios.com/trump-immigrant-fee-fight-deportation-02cfcff7-147b-479f-88e8-6eaa4dbc29ba.html

Steph W. Kight — Steff W. Kight
Politics Reporter
AXIOS

Stef W. Kight reports for AXIOS:

The Justice Department wants to dramatically increase fees for immigrants trying to fight deportation— including nearly $1,000 to appeal an immigration judge decision, according to a proposed Executive Office for Immigration Review rule.

Between the lines: It currently costs around $100 for immigrants to begin to legally fight deportation orders. If implemented, the new rule would raise fees to at least $305 and as much as $975, depending on the appeal.

By the numbers: In the rule, the administration argues that the discrepancy between fees collected and the processing costs “has become more of a burden on the immigration adjudication system as aliens overall have begun filing more of these fee-based forms and motions.”

They estimate that immigrants appealing deportation orders given by an immigration judge cost taxpayers $27.6 million in FY 2018. The rule proposes that fees be raised so that immigrants cover the total cost, which is how the $975 fee came about.

What they’re saying: When hearings are set two or three years in advance, immigrants have time to save for the fees. But with many new immigration judges and a rise in fast-track cases, that may no longer possible, immigration lawyer Jeffrey Chase, a former judge and senior legal advisor at the Board of Immigration Appeals, told Axios

Former immigration judge Paul Schmidt, who retired in 2016, told Axios in an email the proposed rule is “outrageous.”
He said correcting errors through the appeals process is one of the most important government functions. “That’s particularly true when the public segment ‘served’ is generally limited income individuals and getting results correct could be ‘life determining.’”

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

Here’s my complete commentary on EOIR’s latest shady maneuver:

In a single word, “outrageous.”

As set forth in the notice, EOIR is an “appropriated agency.” It was never supposed to recoup its costs, nor does it need to.

Correcting errors on appeal is probably one of the most important functions the Government performs. That’s particularly true when the public segment “served” is generally limited income individuals and the getting results correct could be “life determining.”

Applications, as opposed to “appeals,” also serve a critical public function in insuring that those who qualify under our laws to remain in the U.S. are permitted to do so. That’s a “winner” for everyone.

The astronomical proposed fee increase is particularly absurd in the current context. EOIR is actually cutting corners and has reduced the quality and accuracy of its work product. Why should the public pay nearly 10X more for a rapidly deteriorating product?

Moreover, given the “captive” nature of the courts and the illegal and unethical interference in their operations by the Attorney General and other political operatives at the DOJ, the only chance at fair and impartial “justice” for many individuals is to petition the Article III Courts. That requires going through EOIR, even when EOIR’s biased and unfair adjudication procedures make the results inevitable. It’s called “required exhaustion of administrative remedies.”

Sure, folks can continue to seek “fee waivers.” But, I’ll bet that the procedures for those will become more bureaucratic and unduly restrictive, and that many will be improperly denied. How does someone with no money appeal a wrongful denial of a fee waiver? He or she can’t. They are denied justice!

That gets us to the real point here. In an era and an area of the law where “access to justice” is everything, this is another blatant attempt by the White Nationalist regime to restrict access to justice. In real world terms, the claimed cost savings (and we should never accept the regime’s often flawed and manipulated calculations) here are peanuts compared with the human interests at stake. The regime wastes more than this every week on unneeded and unauthorized walls that blow down in the wind and overpriced golf security for Trump.

As I said at the beginning, it’s outrageous.

PWS

02-28-20

3RD CIR. TO BIA ON PEREIRA: Tough Noogies, No Chevron Deference For You, Because Your En Banc Precedent Decision In Matter of Mendoza-Hernandez, 27 I&N Dec. 520 (BIA 2019) Is Dead Wrong! — Guadalupe v. U.S. Att’y Gen. — Dissenting BIA Judges Get Some Vindication!

3cirStopTimeopinion

Guadalupe v. U.S. Att’y Gen., 3rd Cir., 02-26-20, published

PANEL: RESTREPO, ROTH and FISHER, Circuit Judges

OPINION BY: Judge ROTH

KEY QUOTE:

It is our interpretation of Pereira that it establishes a bright-line rule:

A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a “notice to appear under section 1229(a),” and so does not trigger the stop-time rule.”14

The language is clear. Pereira holds that an NTA shall contain all the information set out in section 1229(a)(1). An NTA which omits the time and date of the hearing is defective. To file an effective NTA, the government cannot, in maybe four days or maybe four months, file a second – and possibly third – Notice with the missing information. And it makes sense to have such a bright-line rule: The ability of the noncitizen to receive and to keep track of the date and place of the hearing, along with the legal basis and cited acts to be addressed at the hearing, is infinitely easier if all that information is contained in a single document – as described in

blanks for time and place” but holding that this deficiency was not of jurisdictional significance); Perez-Sanchez v. United States Att’y Gen., 935 F.3d 1148, 1154 (11th Cir. 2019) (citing Ortiz-Santiago, 924 F.3d at 962) (“Under Pereira, . . . a notice of hearing sent later might be relevant to a harmlessness inquiry, but it does not render the original NTA non- deficient.”).

14 Pereira, 138 S. Ct. at 2113-14.

7

Case: 19-2239

Document: 67 Page: 8 Date Filed: 02/26/2020

15

Moreover, it seems to us to be no great imposition on the government to require it to communicate all that information to the noncitizen in one document. If a notice is sent to the noncitizen with only a portion of the statutorily required information, a valid NTA can easily be sent later which contains all the required information in one document – at such time as the government has gathered all that information together. The complete NTA would then trigger the stop-time rule.

The government argues, however, that the BIA’s

decision in Matter of Mendoza-Hernandez should be given

Chevron16 deference as a reasonable reading of an ambiguous

statute. There, the BIA relied on Pereira’s position that “the

fundamental purpose of notice is to convey essential

information to the alien, such that the notice creates a

reasonable expectation of the alien’s appearance at the removal

proceeding.” 17 The BIA determined that this purpose can be

served just as well by two or more documents as it could by

18

We conclude, however, that Chevron deference is

15 We do note that in Pereira the Court left “for another day whether a putative notice to appear that omits any of the other categories of information enumerated in § 1229(a)(1) triggers the stop-time rule.” 138 S. Ct. at 2113 n. 5.

16 Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

17 Matter of Mendoza-Hernandez, 27 I. & N. Dec. at 531.

18 Id.

the statute.

one.

8

Case: 19-2239 Document: 67 Page: 9 Date Filed: 02/26/2020

inapplicable here because we are not merely interpreting the

19

whether the Supreme Court’s decision in Pereira forecloses

stop-time rule.

our interpretation of the statute in Orozco-Velasquez.

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

What does it mean:

- In the 3rd Circuit, undocumented individuals who have been continuously physically present in the U.S. for at least 10 years prior to receiving a “Pereira-compliant” Notice to Appear” (“NTA”) are exempt from the “stop time” rule for non-lawful-permanent resident cancellation of removal.
- An “after the fact” Notice of Hearing from EOIR does NOT remedy the “Pereira-defect” in the NTA for purposes of the stop-time rule.
- Those whose cancellation of removal applications were improperly denied, or who were not given a chance to apply, because of the stop-time rule should be able to reopen their cases. This should add to the “Aimless Docket Reshuffling” and jack up the backlog some more, at least within the 3rd Cir.
- The 3rd Circuit covers Pennsylvania, New Jersey, and Delaware.
- This mess was largely self-inflicted by DHS & EOIR. They had many chances to remedy the “Pereira problem’ over the years, but chose not to do so.
- Meanwhile, we have a Circuit conflict. The 9th Circuit previously had rejected Mendoza-Hernandez in Lopez v. Barr, https://immigrationcourtside.com/2019/05/28/courts-as-bia-continues-to-squeeze-the-life-out-of-pereira-9th-circuit-finally-pushes-back-why-the-lost-art-of-bia-en-banc-review-dissent-is-so-essential-to-due-process/. However, that case was vacated and rehearing en banc was granted. As noted by the Third Circuit, the Sixth Circuit agreed with the BIA. So, wrong as it is, Mendoza-Hernandez will remain in effect except in the Third Circuit, unless and until other Circuits reject it.
- I would expect the DOJ to find a petition for rehearing in this case, as they did in the Ninth Circuit. That could result in the Third Circuit’s decision being put “on hold.”
- This split will eventually have to be resolved by the Supremes. But, that’s unlikely to happen until next year.
- Congratulations and much appreciation to the six BIA Appellate Immigration Judges, led by former Judge John Guendelsberger, who courageously dissented from the en banc decision in Mendoza-Hernandez:
  - Judge John Guendelsberger, author
  - Judge Charles Adkins-Blanch, Vice Chair
  - Judge Patricia Cole
  - Judge Edward Grant
  - Judge Michael J. Creppy
  - Judge Molly Kendall Clark
  - Perhaps not surprisingly, Judges Guendelsberger, Cole, & Kendall Clark have since retired from the BIA.
- Dissent remains important, if exceedingly rare at today’s BIA, where DOJ politicos and EOIR bureaucrats actively encourage “go along to get along,” pro-regime jurisprudence. Also, en banc decisions are disfavored at today’s BIA.

PWS

02-28-20

2D CIR. TO NY & SIX OTHER SO-CALLED “SANCTUARY STATES:” Tough Noogies, Trump Rules!

https://apple.news/A3IAKzyGETMeEwekcWLIIkA

Priscilla Alvarez reports for CNN:

Court says Trump administration can withhold money from NYC, 7 states in ‘sanctuary cities’ fight

Updated 1:07 PM EST February 26, 2020

The Trump administration can withhold federal money from seven states, as well as New York City, over their cooperation on immigration enforcement, a federal appeals court ruled Wednesday.

The decision by the 2nd US Circuit Court of Appeals reversed a lower court ruling that blocked the Justice Department from withholding a key law enforcement grant the department said was available only to cities that complied with specific immigration enforcement measures.

The federal appeals court ruling comes amid an ongoing feud between the Trump administration and so-called “sanctuary cities,” which limit cooperation between local law enforcement and federal immigration authorities. Over recent weeks, the administration has stepped up its fight against sanctuary jurisdictions and taken measures like barring New York residents from enrolling in certain Trusted Traveler programs, such as Global Entry.

Judge Reena Raggi, writing on behalf of the unanimous 3-judge panel, acknowledged the divisive nature of the issue at hand, writing: “The case implicates several of the most divisive issues confronting our country and, consequently, filling daily news headlines: national immigration policy, the enforcement of immigration laws, the status of illegal aliens in this country, and the ability of States and localities to adopt policies on such matters contrary to, or at odds with, those of the federal government.”

The city of New York is a plaintiff in the lawsuit, along with New York, Connecticut, New Jersey, Washington, Massachusetts, Virginia and Rhode Island.

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. States pushed back and sued over the move.

. . . .

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

Read the complete article at the above link. Thanks for keeping us up to date, Priscilla! Love your timely and accessible reporting!

My “Quick Takes:”

This one is headed to the Supremes, as there is now a “Circuit split.”
Don’t expect this to have much effect on actual immigration enforcement.
- Coercing states and localities is unlikely to foster much meaningful cooperation.
- It’s more likely to simply channel resistance to the regime elsewhere.
- The affected jurisdictions always have the option of just taking a “pass” on “Byrne Grants.”
In any event, interior apprehensions are a minuscule part of the DHS civil enforcement program.
- They accounted for fewer than 100,000 removals during the last fiscal year.
- At that rate, it would take more than a century for DHS to remove the estimated 10+ million undocumented U.S residents.
On the other hand, this is a major “propaganda victory” for the regime. And, make no mistake, this was always about anti-immigrant propaganda not legitimate law enforcement.
- The Administration will be able to tout that Second Circuit Judge Reena Raggi bought their disingenuous “enforcement policy” argument “hook line and sinker.” (The DHS “Community Terrorism” program has actually been shown to inhibit legitimate law enforcement by making it much less likely that victims of domestic violence and gang crimes will report them to local law enforcement.)
- However, more thoughtful judges in the 7th Circuit and elsewhere have exposed the weaknesses of Judge Raggi’s reasoning.
It’s unlikely that the Supremes will resolve this before the November election.
- If Trump wins, the “Roberts Five” have already demonstrated their obsequiousness in the face of Trump’s war on immigrants.
- On the other hand, a Democratic Administration would be likely to withdraw this “punishment initiative” completely and try to reach a more harmonious working relationship with state and local law enforcement on immigration issues, thus “mooting” this litigation.

PWS

02-28-20

NDPA NEWS: Even In Times Of Systemic Dysfunction, Fairness, Scholarship, Timeliness, Respect, & Teamwork Among Conscientious Immigration Judges, Fair-Minded ICE Assistant Chief Counsel, & Caring, Well-Prepared Advocates From the NDPA Continue to Save Lives of the Most Vulnerable Among Us! — “I don’t know how much longer I’ll be alive, but my children will always thank you,” Says Critically Ill Respondent to Arlington Immigration Judge Cynthia S. Torg, Who Had Just Granted Her Asylum!

NDPA NEWS: Even In Times Of Systemic Dysfunction, Fairness, Scholarship, Timeliness, Respect, & Teamwork Among Conscientious Immigration Judges, Fair-Minded ICE Assistant Chief Counsel, & Caring, Well-Prepared Advocates From the NDPA Continue to Save Lives of the Most Vulnerable Among Us! — “I don’t know how much longer I’ll be alive, but my children will always thank you,” Says Critically Ill Respondent to Arlington Immigration Judge Cynthia S. Torg, Who Had Just Granted Her Asylum!

NDPA stalwart (and former Arlington Immigration Court Intern) Professor Paulina Vera reports:

Good afternoon,

The above is what our client said to Immigration Judge Cynthia S. Torg after she granted her asylum claim this afternoon. A-A-‘s husband was politically involved in their home country of Venezuela, actively protesting against Nicolas Maduro. Because of his political involvement, both A-A- and their 11-year-old son were targeted by security forces and threatened with their lives should the political opposition continue. Additionally, A-A- has been diagnosed with stage 4 breast cancer and feared that she would not be able to get medical treatments in her home country due to a shortage of medical supplies there.

After a 15 minute hearing, the Immigration Judge (IJ) agreed to grant relief, which the trial attorney did not oppose. Both the IJ and trial attorney commended student-attorney, Halima Nur, JD ‘20, for her preparation. The IJ commented that because of the amount of documentation and the legal arguments presented, she was able to issue a decision quickly. In addition to their 11-year-old son, the couple has a 1.5 year old son, who was born in the United States. With this grant, the family will remain together in the U.S.

Please join me in congratulating Halima Nur, JD ‘20, and Madeleine Delurey, JD ‘20, for all their hard work on the case.

Best,

—-
Paulina Vera, Esq.
Acting Director, GW Law Immigration Clinic (Academic Year 2019-2020)
Legal Associate, Immigration Clinic
Professorial Lecturer in Law

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

These are the moments that everyone, judges, lawyers, interpreters, respondents, families, “live for” in Immigration Court. It’s what “kept me going” for 13 years on the trial bench. “Building America, one case at a time,” I used to say!

Thanks for all that you and your students do for Due Process and our system of Justice, Paulina! Also, this isn’t the first time that Judge Torg’s name has come up in connection with saving lives in Immigration Court. https://immigrationcourtside.com/2018/11/28/heres-what-the-dishonest-scofflaw-officials-in-the-trump-administration-dont-want-you-to-know-many-who-escape-from-the-northern-triangle-are-in-fact-refugees-when-they-are-give/

This report also raises a point that I made in one of yesterday’s posts, echoed by my good friend retired Judge Gus Villageliu in his comments: Encouraging parties to work together to “pre-try” and bring well-documented “grant cases” forward on crowded dockets for short hearings is a great “judicial efficiency measure” that actually advances rather than inhibits, systemic Due Process and efficiency.https://immigrationcourtside.com/2020/02/24/killer-on-the-road-emboldened-by-the-complicity-of-the-roberts-court-gop-abdication-of-legislative-oversight-breakdown-of-democratic-institut/

It’s the “polar opposite” of the “haste makes waste gimmicks” that unqualified politicos and administrators who don’t handle regular dockets have forced on judges and parties in a system where “docket control” has effectively been disconnected from its proper objectives of achieving due process and fundamental fairness.

Unfortunately, as Miller and the restrictionists seek to farther skew the regulations to screw asylum seekers, just results like this are likely to be even harder to achieve. That means that more and more asylum applicants will have to appeal to the Article III Courts, flawed as they have become, for any chance whatsoever of achieving a fair and unbiased outcome. I also discussed this unhappy likely future development in my post at the preceding link.

Thanks again to Judge Torg, the ICE Assistant Chief Counsel, Paulina, and GW Clinic Student Attorneys Halima Nur, JD ‘20, and Madeleine Delurey, JD ‘20, for being inspiring examples of how the Immigration Court system could work to achieve “due process and fundamental fairness with efficiency” under “different management” and an “independent structure” in the future.

Due Process Forever!

PWS

02-27-20

GREAT KATE: Morrissey’s Moving Journalism Shows Human Side Of Why We Have Asylum Laws & How Trump Regime’s White Nationalist Abuses Are Diminishing All of Us!

https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.sandiegouniontribune.com%2Fnews%2Fimmigration%2Fstory%2F2020-02-24%2Fprotecting-the-worlds-most-vulnerable-what-it-takes-to-make-a-case-under-us-asylum-system&data=02%7C01%7Ckate.morrissey%40sduniontribune.com%7C14739620142c413da57508d7b98c07dd%7Ca42080b34dd948b4bf44d70d3bbaf5d2%7C0%7C0%7C637181883385100274&sdata=IXPR1Yk3ojZwhVRaUvfE%2BjWfBIpJ1pf2If9RNril0Ao%3D&reserved=0

Kate Morrissey writes in the first of a multi-part series in the San Diego Union-Tribune:

Nicaraguan government attacks on pro-democracy protests left hundreds dead and tens of thousands living in exile. Bárbara is one of them.

By KATE MORRISSEY

FEB. 24, 2020 5:01 AM

Managua, NICARAGUA —

Bárbara never thought she would leave Nicaragua.

But early one morning, she kissed her sleeping son goodbye. She had spent the night watching him in his bed. It was almost his 10th birthday.

“Fue el peor momento de mi vida,” Bárbara said. It was the worst moment of my life.

It had been nearly a year since Bárbara had been left for dead outside her clothing store, a victim of the Nicaraguan government’s bloody campaign to silence pro-democracy protests that rose up in 2018.

She knew she had to flee, but she didn’t think she could protect her son on the notorious migrant trail. She wasn’t willing to risk him.

So the 29-year-old entrepreneur escaped north alone, putting herself at the mercy of the U.S. asylum system — a system meant to protect the world’s most vulnerable.

RETURNED: PART I

The first in an occasional series in which the Union-Tribune explores the asylum system through the eyes of people who experience it firsthand, with drastically different outcomes.

Para leer este reportaje en español, haga click aquí.

The San Diego Union-Tribune is not fully identifying Bárbara or many of the witnesses interviewed in Nicaragua because of the danger that the government might retaliate against them or their families.

Bárbara is in Tijuana, one of tens of thousands of people waiting for a chance to argue for protection in the United States, part of a changing wave of migration that the Trump administration has labeled a crisis.

She exists in a constant state of uncertainty, and she realizes now just how much she underestimated the challenges that still lie ahead.

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

For Kate’s full article including the “original formatting” and all of the great pictures and graphics accompanying it, click on the above link that will take you to the original article on the San Diego Union-Tribune website!

Thanks, Kate, for so beautifully capturing the “heart and soul” of the refugee experience and why the Trump regime’s intentionally cruel, illegal, immoral, and dehumanizing policies are undermining our humanity as a nation and everything we should stand for. These are human lives at stake, not “numbers,” “beds,” or “apprehensions.” Success is measured in lives saved, and fair treatment of all, not “numbers turned back” or how we can “discourage” or “deter” others from seeking refuge. Our legal system should be fair and impartial, not a “weaponized tool” for nativist immigration enforcement policies. Indeed, it supposedly is there too protect all of us against such political overreach and abuses.

Interestingly, there was a time in the past when the GOP and the Reagan Administration went out of its way to help and give refuge to those Nicaraguans fleeing the Sandinistas and Daniel Ortega. The Nicaraguan and Central American Relief Act (“NACARA”), one of the best, most effective, and most efficient pieces of immigration legislation ever passed, was a result of bipartisan support for providing permanent relief to Nicaraguans, El Salvadorans, and Guatemalans fleeing the mess in Central American that our Government played a significant role in creating. Some off those fleeing Cuba and Eastern Europe also were covered. Now, under the influence of Trump, neo-fascist Stephen Miller, and the rest of the White Nationalist nativist gang, this GOP-led regime simply turns its back on vulnerable refugees like Barbara, the human carnage resulting from Ortega’s misrule of Nicaragua.

Perhaps in the future, Kate will put it all together in a book. Hope so!

PWS

02-27-20

SUPREMES’ RIGHT WING DELIVERS STARK MESSAGE: BROWN LIVES DON’T MATTER, AS IT SHRUGS OFF CBP AGENT’S UNJUSTIFIED KILLING OF MEXICAN TEEN – Other Four Justices Dissent From Grant of Impunity For Deadly Immigration Enforcement – Hernandez v. Mesa

Hernandez v. Mesa, No. 17-1678, 02-26-20

Hernandez v. Mesa17-1678_m6io

Syllabus [By Court Staff]

HERNANDEZ ET AL. v. MESA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

No. 17–1678. Argued November 12, 2019—Decided February 25, 2020

Respondent, United States Border Patrol Agent Jesus Mesa, Jr., shot and killed Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, in a tragic and disputed cross-border incident. Mesa was standing on U. S. soil when he fired the bullets that struck and killed Hernández, who was on Mexican soil, after having just run back across the border following entry onto U. S. territory. Agent Mesa contends that Hernández was part of an illegal border crossing attempt, while petitioners, Hernández’s parents, claim he was playing a game with his friends that involved running back and forth across the culvert sep- arating El Paso, Texas, from Ciudad Juarez, Mexico. The shooting drew international attention, and the Department of Justice investi- gated, concluded that Agent Mesa had not violated Customs and Bor- der Patrol policy or training, and declined to bring charges against him. The United States also denied Mexico’s request for Agent Mesa to be extradited to face criminal charges in Mexico.

Petitioners sued for damages in U. S. District Court under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, alleging that Mesa violated Hernández’s Fourth and Fifth Amendment rights. The Dis- trict Court dismissed their claims, and the United States Court of Ap- peals for the Fifth Circuit affirmed. After this Court vacated that de- cision and remanded for further consideration in light of Ziglar v. Abbasi, 582 U. S. ___, the Fifth Circuit again affirmed, refusing to rec- ognize a Bivens claim for a cross-border shooting.

Held: Bivens’ holding does not extend to claims based on a cross-border shooting. Pp. 4–20.

(a) In Bivens, the Court implied a Fourth Amendment claim for damages even though no federal statute authorized such a claim. The Court later extended Bivens’ reach to cover claims under the Fifth and

2

HERNANDEZ v. MESA Syllabus

Eighth Amendments. See Davis v. Passman, 442 U. S. 228; Carlson v. Green, 446 U. S. 14. But Bivens’ expansion has since become “a ‘disfa- vored’ judicial activity,” Abbasi, supra, at ___, and the Court has gen- erally expressed doubt about its authority to recognize causes of action not expressly created by Congress, see, e.g., Jesner v. Arab Bank, PLC, 584 U. S. ___, ___. When considering whether to extend Bivens, the Court uses a two-step inquiry that first asks whether the request in- volves a claim that arises in a “new context” or involves a “new cate- gory of defendants.” Correctional Services Corp. v. Malesko, 534 U. S. 61, 68. If so, the Court then asks whether there are any “special factors [that] counse[l] hesitation” about granting the extension. Abbasi, supra, at ___. Pp. 4–8.

(b) Petitioners’ Bivens claims arise in a new context. Their claims are based on the same constitutional provisions as claims in cases in which damages remedies were previously recognized, but the con- text—a cross-border shooting—is significantly “different . . . from pre- vious Bivens cases.” Abbasi, supra, ___. It involves a “risk of disrup- tive intrusion by the Judiciary into the functioning of other branches.” Abbasi, supra, ___. Pp. 8–9.

(c) Multiple, related factors counsel hesitation before extending Bivens remedies into this new context. Pp. 9–19.

(1) The expansion of a Bivens remedy that impinges on foreign re- lations—an arena “so exclusively entrusted to the political branches . . . as to be largely immune from judicial inquiry,” Haig v. Agee, 453 U. S. 280, 292—risks interfering with the Executive Branch’s “lead role in foreign policy,” Medellín v. Texas, 552 U. S. 491, 524. A cross- border shooting affects the interests of two countries and, as happened here, may lead to disagreement. It is not for this Court to arbitrate between the United States and Mexico, which both have legitimate and important interests at stake and have sought to reconcile those inter- ests through diplomacy. Pp. 9–12.

(2) Another factor is the risk of undermining border security. The U. S. Customs and Border Protection Agency is responsible for pre- venting the illegal entry of dangerous persons and goods into the United States, and the conduct of their agents positioned at the border has a clear and strong connection to national security. This Court has not extended Bivens where doing so would interfere with the system of military discipline created by statute and regulation, see, e.g., Chap- pell v. Wallace, 462 U. S. 296, and a similar consideration is applicable to the framework established by the political branches for addressing cases in which it is alleged that lethal force at the border was unlaw- fully employed by a border agent. Pp. 12–14.

(3) Moreover, Congress has repeatedly declined to authorize the award of damages against federal officials for injury inflicted outside

Cite as: 589 U. S. ____ (2020) 3 Syllabus

S. borders. For example, recovery under 42 U. S. C. §1983 is avail- able only to “citizen[s] of the United States or other person[s] within the jurisdiction thereof.” The Federal Tort Claims Act bars “[a]ny claim arising in a foreign country.” 28 U. S. C. §2680(k). And the Tor- ture Victim Protection Act of 1991, note following 28 U. S. C. §1350, cannot be used by an alien to sue a United States officer. When Con- gress has provided compensation for injuries suffered by aliens outside the United States, it has done so by empowering Executive Branch of- ficials to make payments under circumstances found to be appropriate. See, e.g., Foreign Claims Act, 10 U. S. C. §2734. Congress’s decision not to allow suit in these contexts further indicates that the Judiciary should not create a cause of action that extends across U. S. borders either. Pp. 14–18.

(4) These factors can all be condensed to the concern for respecting the separation of powers. The most important question is whether Congress or the courts should create a damages remedy. Here the an- swer is Congress. Congress’s failure to act does not compel the Court to step into its shoes. Pp. 19–20.

885 F. 3d 811, affirmed.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., andTHOMAS,GORSUCH,andKAVANAUGH,JJ.,joined. THOMAS,J.,fileda concurring opinion, in which GORSUCH, J., joined. GINSBURG, J., filed a dissenting opinion, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

Key Quote From Justice Ginsburg’s dissent:

In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), this Court held that injured plaintiffs could pursue claims for damages against U. S. officers for conduct disregarding constitutional constraints. The in- stant suit, invoking Bivens, arose in tragic circumstances. In 2010, the complaint alleges, a Mexican teenager was playing with friends in a culvert along the United States- Mexico border. A U. S. Border Patrol agent, in violation of instructions controlling his office and situated on the U. S. side of the border, shot and killed the youth on the Mexican side. The boy’s parents sued the officer for damages in fed- eral court, alleging that a rogue federal law enforcement of- ficer’s unreasonable use of excessive force violated the Fourth and Fifth Amendments. At the time of the incident, it is uncontested, the officer did not know whether the boy he shot was a U. S. national or a citizen of another land. See Hernández v. Mesa, 582 U. S. ___, ___–___ (2017) (per curiam) (slip op., at 5–6).

When the case first reached this Court, the Court re- manded it, instructing the Court of Appeals to resolve a threshold question: Is a Bivens remedy available to noncit- izens (here, the victim’s parents) when the U. S. officer acted stateside, but the impact of his alleged wrongdoing

2 HERNANDEZ v. MESA GINSBURG, J., dissenting

was suffered abroad? To that question, the sole issue now before this Court, I would answer “yes.” Rogue U. S. officer conduct falls within a familiar, not a “new,” Bivens setting. Even if the setting could be characterized as “new,” plain- tiffs lack recourse to alternative remedies, and no “special factors” counsel against a Bivens remedy. Neither U. S. for- eign policy nor national security is in fact endangered by the litigation. Moreover, concerns attending the applica- tion of our law to conduct occurring abroad are not involved, for plaintiffs seek the application of U. S. law to conduct occurring inside our borders. I would therefore hold that the plaintiffs’ complaint crosses the Bivens threshold.

* * **

Regrettably, the death of Hernández is not an isolated in- cident. Cf. Rodriguez, 899 F. 3d, at 727 (complaint alleged that border agent fired 14 to 30 bullets across the border, killing a 16-year-old boy); Brief for Immigrant and Civil Rights Organizations as Amici Curiae 26–28 (describing various incidents of allegedly unconstitutional conduct by border and immigration officers); Brief for Border Network for Human Rights et al. as Amici Curiae 8–15 (listing indi- viduals killed by border agents). One report reviewed over 800 complaints of alleged physical, verbal, or sexual abuse lodged against Border Patrol agents between 2009 and 2012; in 97% of the complaints resulting in formal deci- sions, no action was taken. D. Martínez, G. Cantor, & W. Ewing, No Action Taken: Lack of CBP Accountability in Re- sponding to Complaints of Abuse, American Immigration Council 1–8 (2014), americanimmigrationcouncil.org/sites/

14 HERNANDEZ v. MESA GINSBURG, J., dissenting

default/files/research/No%20Action%20Taken_Final.pdf. Ac- cording to amici former Customs and Border Protection of- ficials, “the United States has not extradited a Border Pa- trol agent to stand trial in Mexico, and to [amici’s] knowledge has itself prosecuted only one agent in a cross- border shooting.” Brief for Former Officials of U. S. Cus- toms and Border Protection Agency as Amici Curiae 4. These amici warn that, “[w]ithout the possibility of civil li- ability, the unlikely prospect of discipline or criminal pros- ecution will not provide a meaningful deterrent to abuse at the border.” Ibid. In short, it is all too apparent that to redress injuries like the one suffered here, it is Bivens or nothing.

***

I resist the conclusion that “nothing” is the answer re- quired in this case. I would reverse the Fifth Circuit’s judg- ment and hold that plaintiffs can sue Mesa in federal court for violating their son’s Fourth and Fifth Amendment rights.

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

This case is straightforward. Mesa a CBP Agent standing in the United States shot Hernandez, an unarmed 15-year-old Mexican standing in Mexico without justification. This violated Hernandez’s Fourth and Fifth Amendment rights. Had the lower Federal Courts and the Supremes applied the law on “Constitutional torts” correctly, Mesa would have been found liable. The Government probably would have settled with the Hernandez family.

Instead, nearly of decade of unnecessary litigation ensued during which all three levels of the U.S. Court System failed the Hernandez family and distorted our system of justice. Dissenting Fifth Circuit Judge (now Ambassador) Ed Prado summed up this legal farce in a single powerful phrase: “[the majority has been] led astray from the familiar circumstances of this case by empty labels of national security, foreign affairs, and extra- territoriality.” For the record, Ambassador Prado is a lifelong Republican. I worked with him on immigration litigation during the Reagan Administration.

Hey, just “business as usual” for a GOP Supremes’ majority that has checked the Constitution and their humanity at the door in their haste to “deconstruct America” and reconstitute it as the White Nationalist authoritarian state that the Trump regime embodies. Heck, corporations and guns have more rights that dead Mexican kids and their families under the majority‘s view. “Not their kids” as I’ve noted before. I do suspect that if members of their own families were being shot and killed by CBP, we would have a different result in cases like this. But, out of sight, out of mind. Wow, think of the potential foreign relations nightmare of CBP Agents stopped killing unarmed Mexican kids from our side of the border!

Not to be outdone by the majority’s legal gibberish cloaking moral abdication, Justices Gorsuch and Thomas wrote separately to signal Trump that they would like to do away with Bivens entirely while in the process of rewriting the laws in Trump’s image. Apparently recognizing that the GOP has effectively stymied Congress and that Trump intends to inflict many more legal and Constitutional abuses on the unfortunate non-white population, they would like to eliminate all restraints on the regime’s constant violations of law and abuses of individual rights. Obviously, from their exalted and privileged positions above the Constitutional, legal, and societal chaos affecting less fortunate individuals under the Trump regime, they haven‘t fully thought through want happens when Trump or the next White Nationalist demagogue comes for them and there is neither a rule or law nor anyone left to enforce it in a fair an impartial manner.

I’m not the only one who understands the ugly truth about the future of all of our individual rights and the lives of nonwhite individuals (citizens or not) that the Trump majority on the Supremes are attempting to hide with their opaque, yet lethal, legal gobbledygook. Ian Millhiser over at Vox News also sees though the smokescreen at what’s really happening here: “The Supreme Court just held that a border guard who shot a child will face no consequences” https://apple.news/AWWSBpk_aR6uAlmxmQIvZkw

As we’re finding out anew every day, the law and fair, impartial, and courageous judging is for suckers!

Due Process Forever; The “Roberts Five” Never!

PWS

02-26-20

AMERICA’S HOMEGROWN TORTURERS: Physicians For Human Rights Confirms What Many of Us Have Been Saying For Years: Trump Regime Tortures Families With Children With Impunity!

https://www.theguardian.com/us-news/2020/feb/25/trump-family-separations-children-torture-psychology?CMP=Share_iOSApp_Other

Amanda Holpuch reports for The Guardian:

The trauma Donald Trump’s administration caused to young children and parents separated at the US-Mexico border constitutes torture, according to evaluations of 26 children and adults by the group Physicians for Human Rights (PHR).

The not-for-profit group’s report provides the first in-depth look at the psychological impact of family separation, which the US government continued despite warnings from the nation’s top medical bodies.

“As a clinician, nobody was prepared for this to happen on our soil,” the report co-author Dr Ranit Mishori, senior medical adviser at PHR, told the Guardian. “It is beyond shocking that this could happen in the United States, by Americans, at the instruction and direct intention of US government officials.”

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Legal experts have argued family separation constituted torture, but this is the first time a medical group has reached the determination.

PHR volunteer psychiatrists evaluated 17 adults and nine children who had been separated between 30 to 90 days. Most met the criteria for at least one mental health condition, including post-traumatic stress disorder, major depressive disorder or generalized anxiety disorder “consistent with, and likely linked to, the trauma of family separation”, according to the report.

Not only did the brutal family separation policy create trauma, it was intensified by the families’ previous exposure to violence on their journey to the US and in their home countries of Honduras, Guatemala and El Salvador.

All but two of the adults evaluated by PHR said they had received death threats in their home countries and 14 out of the 17 adults said they were targeted by drug cartels. All were fearful their child would be harmed or killed if they remained at home.

Almost all the children had been drugged, kidnapped, poisoned or threatened by gangs before they left. One mother told investigators she moved her daughter to different schools in El Salvador several times so gang members couldn’t find her and kill her.

In the face of these threats, parents tried to move within the country, change their phone numbers, meet extortion demands and go silent on social media. Ultimately, however, the report said: “Parents were confident that the journey to the United States would result in protection for their children.”

This is not what happened at the border.

The Trump administration instituted a policy in April 2018 that formally enabled the mass separation of children and parents at the US-Mexico border. Trump ended the policy in June 2018, but it has since been revealed that the administration separated thousands of families before and after the policy was in place.

There was also no system to reunite the families, according to an internal government watchdog. The Trump administration also ignored warnings from the nation’s leading medical organizations that family separation would traumatize children and adults.

How Trump’s immigration policies hurt people’s lives – in pictures

People who experience trauma, especially as children, have higher rates of medical conditions such as cancer and cardiovascular disease. They also have an increased risk of psychiatric disorders and detrimental coping behaviors such as alcohol and drug abuse.

“Something like that does not just resolve once you’re reunified with your parents, it’s something you carry with you possibly forever,” Mishori said.

One Honduran father described how badly his son reacted the four times a psychologist came to their apartment for treatment in the report: “Each time the son would refuse to cooperate and would throw things at the therapist … It appears his son was afraid of strangers, afraid they will take him away from his father.”

Kathryn Hampton, a senior officer in PHR’s asylum program, said the group PHR had assessed was small but represented separated families from different detention centers and foster homes across the country over a two-year period.

“This is a really disparate group of people and yet their stories are practically identical,” said Hampton. “So that’s very disturbing, to see that level of consistency.”

Amid the despair, PHR has seen an outpouring of support in money and volunteers. Hampton said since the beginning of 2018, its Asylum Network had more than doubled to 1,700 clinicians who provide free medical and psychological evaluations to asylum seekers. There were also three times as many medical school clinics partnering with the organization in that period.

Dr Stuart Lustig, a California-based psychiatrist and longtime volunteer, evaluated a seven-year-old girl from Guatemala. He said when he and the girl did a common evaluation tool called the Squiggle Test, she had one of the more inhibited reactions he had seen in 20 years.

“These kinds of separations were filled with uncertainty, there was no information about where people are going, so it is not surprising at all that these separations ended up being extremely traumatizing for kids and parents,” Lustig said.

In November, a federal court ordered the US to compensate for the trauma separated families faced at the hands of the government. Lustig said there were many treatment options for children who experienced this deep level of trauma in the US, but he and PHR were concerned about how these families would have access to them.

Lustig said: “Part of the work is simply building trust in humanity again.”

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

We are diminishing ourselves as a nation; but, in the end, it won’t stop human migration. While the purpose of torture is dehumanization and degradation of the “other,” torture actually increases the humanity of its victims while dehumanizing the torturers and their enablers.

It’s also worthy remembering the next time “Big Mac With Lies,” Nielsen, Kelly, ”Gonzo” Sessions and other noted torturers want to “clean up their images” and capitalize on their misdeeds by speaking to an organization to which you belong or attend. Remember who they REALLY are beneath their facades: unpunished perpetrators of “Crimes Against Humanity.”

PWS

02-26-20

“BABY JAILS” — Georgetown Law Professor Phil Schrag Releases New Book Taking You Inside America’s “Kiddie Gulags” & The Continuing Fight To End The U.S. Government’s Official Policies of Inflicting Child Abuse On The Most Vulnerable Among Us!

Professor Philip G. Schrag
Georgetown Law
Co-Director, CALS Asylum Clinic

Here’s a great “mini review” of Phil’s new book from Professor Kit Johnson on ImmigrationProf Blog:

Thursday, February 20, 2020

Thoughts on Baby Jails by Philip G. Schrag

By Immigration Prof

Kevin has already posted about Baby Jails, the new book from immprof Philip G. Schrag (Georgetown) that explores the detention of migrant children.

I write today as someone who recently devoured this book. Let me start by telling you two things about myself: I hate flying and I am not much of a fan of nonfiction books. Combining these two things, I tend to read a riveting YA novel while flying in an effort to distract myself from how many feet I am unnaturally suspended above the earth’s surface. Yet I recently read Schrag’s book over the course of 3 flights. It was utterly engrossing.

The book is jam-packed with law and yet manages to read like a narrative. You get a feel for characters (Jenny Flores, certain attorneys and judges) and find yourself rooting from the sidelines even as you know victories will frequently fail to live up to their promise.

The book included numerous vignettes and insights that were entirely new to me. For example, did you know Ed Asner was responsible for Flores’ legal representation? Yes, the grumpy old man from Pixar’s Up set out to help his housekeeper’s daughter who was housed with Flores and connected the young women with Peter Schey, founder of the National Center for Immigrants’ Rights (now the Center for Human Rights and Constitutional Law).

Here’s another one: Leon Fresco represented the government in a 2015 lawsuit brought by Schey to enforce the Flores settlement — arguing that the settlement didn’t apply to children traveling with parents and that the agreement was “no longer equitable.” Leon Fresco! I wrote about him a few years back — he was a key player in the failed 2013 comprehensive immigration reform led by the Gang of Eight.

I’m also impressed by how comprehensive the book is. I recently spoke to a friend who is on the cusp of publishing a book and we talked about how, at some point in the writing process, the publisher will charge by the word for additions of any kind. Yet Schrag’s book must have been edited and added upon right up until the last moment of publication. There is nothing of current import that is left behind (remain in Mexico, asylum cooperation agreements, third country transit).

This book is marvelous. A tour de force. I recommend it to everyone — even terrified flyers. Instead of gasping at every bump in the jet stream you’ll be scribbling away in the margins, furious at what our nation has done to children in the name of immigration enforcement.

-KitJ

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

Thanks, Phil & KitJ, my friends and colleagues. Both of you are amazing inspirations to all of us in the “New Due Process Army.”

The Trump regime seeks to take child abuse many steps further to effectively “repeal by administrative fiat” all asylum protection laws, to insure that as many families and children as possible suffer, die. or are forced to remain in life-threatening conditions outside the U.S., and to abandon any effective cooperative efforts to improve conditions in “refugee sending” countries.

Meanwhile, many complicit Article III Judges (U.S. District Judge Dolly Gee being a notable exception) simply “look the other way” — not THIER kids and families being tortured and killed, so who cares what happens to them — and a depressing segment of the U.S. public just doesn’t care that the Trump regime is putting America among the most notable international human rights abusers. After all, THEY have jobs, THEIR kids aren’t the Trump regime’s targets (yet), and the stock market is going up. So, who cares what dehumanization, intentional human rights abuses, and violations of legal norms are taking place in their name?

Still, I think that Phil, Kit, the Round Table, and many other members of our “New Due Process Army” are clearly “on the right side of history” here. It’s just tragic that so many innocent folks, many of them children, will have to die or be irreparably harmed before America finally comes to its senses and restores morality and human values to our government.

We’ve got a chance to “right the ship” this November. Don’t blow it!

Due Process Forever; Government Child Abusers & Their Enablers Never!

PWS

02-25 -20

“KILLER ON THE ROAD” – EMBOLDENED BY THE COMPLICITY OF THE “ROBERTS’ COURT,” GOP ABDICATION OF LEGISLATIVE OVERSIGHT, & BREAKDOWN OF DEMOCRATIC INSTITUTIONS AND VALUES, REGIME APPARENTLY PLANNING EXTRALEGAL MOVE TO KILL MORE OF THE MOST VULNERABLE REFUGEES – Refugee Women, Children, LGBTQ Community, Victims Of Government-Enabled Gangs Said To Among Targets of Miller/Trump White Nationalist “American Death Squads!”

Dead Refugee Child Washes Ashore in Turkey — Stephen Miller Hopes To Kill More Refugees in The Americas

Stephen Miller & Wife — Mr. & Mrs. Stephen Miller Look Forward to Planning Together for More “Crimes Against Humanity” Targeting World’s Most Vulnerable Refugees

“KILLER ON THE ROAD” – EMBOLDENED BY THE COMPLICITY OF THE “ROBERTS’ COURT,” GOP ABDICATION OF LEGISLATIVE OVERSIGHT, & BREAKDOWN OF DEMOCRATIC INSTITUTIONS AND VALUES, REGIME APPARENTLY PLANNING EXTRALEGAL MOVE TO KILL MORE OF THE MOST VULNERABLE REFUGEES – Refugee Women, Children, LGBTQ Community, Victims Of Government-Enabled Gangs Said To Among Targets of Miller/Trump White Nationalist “American Death Squads!”

“There’s a killer on the road
His brain is squirmin’ like a toad
Take a long holiday
Let your children play
If ya give this man a ride
Sweet memory will die
Killer on the road, yeah”

— From “Riders on the Storm” by The Doors (1971)

By Paul Wickham Schmidt

Courtside Exclusive

Feb. 24, 2019

I have been getting “unverified hearsay” reports from Courtside readers and others across the country that an emboldened and now totally unrestrained Trump regime actively is planning an all-out extralegal, extrajudicial onslaught against established asylum laws. It’s likely to claim the lives of many of the most vulnerable and deserving asylum seekers in the United States.

Predictably, this atrocious attack on humanity and human dignity is the “brainchild” of newly married neo-fascist White Nationalist hate monger Stephen Miller. Although unconfirmed, these reports have come from diverse enough sources and sound so consistent with the regime’s nativist, xenophobic approach to asylum that I, for one, give them credence. It’s time to start sounding the alarm for the regime’s latest vile assault on the rule of law and our common humanity!

I have gleaned that there is a 200-page anti-asylum screed floating around the bowels of the regime’s immigration bureaucracy representing more or less the nativist version of the “final solution” for asylum seekers. The gist of this monumental effort boils down along these lines:

[W]ould ban the grant of asylum claims involving PSGs defined solely by criminal activity, terrorist activity, persecutory actions, presence in country with generally high crime rates, attempted recruitment by criminal, terrorist, persecutors, perception of wealth, interpersonal disputes which government were not aware of or involved in and do not extend countrywide; private criminal acts which government was not aware of and do not extend countrywide; status as returned from U.S. and gender. Note the inclusion of “gender” at the end.

Thus, in one “foul swoop” the regime would illegally: 1) strip women and the LGBTQ community of their decades-long, hard-won rights to protection under asylum laws; 2) eliminate the current rebuttable regulatory “presumption of countrywide future persecution” for those who have suffered past persecution; 3) reverse decades of well-established U.S. and international rulings that third party actions that the government was unwilling or unable to protect against constitute persecution; and 4) encourage adjudicators to ignore the legal requirement to consider “mixed motivation” in deciding asylum cases.

There is neither legal nor moral justification for this intentional distortion and rewriting of established human rights principles. Indeed, in my experience of more than two decades as a judge at both the appellate and trial levels, a substantial number, perhaps a majority, of the successful asylum and/or withholding of removal claims in Immigration Court involved non-governmental parties and/or gender-based “particular social groups.” They were some of the clearest, most deserving, and easiest to grant asylum cases coming before the Immigration Courts.

At the “pre-Trump” Arlington Immigration Court, many of these cases were so well-documented and clearly “grantable” that they were “pre-tried” by the parties and moved up on my docket by “joint motion” for “short hearing” grants. This, in turn, encouraged and rewarded multiparty cooperation and judicial efficiency. It was “due process with efficiency, in action.”

Consequently, in addition to its inherent lawlessness, cruelty, and intentional inhumanity, the regime’s proposed actions will stymie professional cooperation between parties and inhibit judicial efficiency. This is just one of many ways in which the regime has used a combination of wanton cruelty and “malicious incompetence” to artificially “jack up” the Immigration Court backlog to over 1.3 million pending and “waiting” cases, even with the hiring of hundreds of additional Immigration Judges.

In a functioning democracy, with an independent judiciary, staffed by judges with knowledge, integrity, and courage, you might expect a timely judicial intervention to block this impending legal travesty and humanitarian disaster as soon as it becomes effective. But, as Justice Sotomayor recently pointed out in a blistering dissent, Chief Justice Roberts and his four GOP colleagues appear to have “tilted” in favor of the regime.

They can’t roll over and bend the laws fast enough to “greenlight” each new immigrant-bashing gimmick instituted by the regime. Moreover, as I’m sure is intended, once these new anti-asylum regulations are railroaded into force, the USCIS Asylum Offices will deny “credible fear” in nearly all cases, thus preventing most asylum applicants from even getting a day in court to properly challenge the regulations. All this will happen while the life-tenured Article III Courts look the other way.

For Stephen Miller, the coming Armageddon for defenseless asylum seekers must represent the ultimate triumph of fascism over democracy, hate over reason, and racism over tolerance. Miller was recently quoted in a New Yorker article about how screwing asylum applicants, and presumably knowing that they and their families would suffer and die, be tortured, or be otherwise harmed by his unlawful acts, was, in effect, his “life’s dream.” “It’s just that this is all I care about. I don’t have a family. I don’t have anything else. This is my life,” said Miller after a meeting in which he had promoted a fraudulent “Safe Third Country Agreement” with El Salvador, a country he acknowledged was without a functioning asylum system.” https://slate.com/news-and-politics/2020/02/stephen-miller-immigration-this-is-my-life.html.

It appears that even Miller’s forlorn “love life” has taken an upturn. Although the Trump Administration has been a “coming out party” for racists, White Nationalists, and White Supremacists of all stripes, the “hater dater circuit” has remained somewhat “restricted.” Evidently, not everyone “gets off” on the chance to get “up close and personal” with “wannabe war criminals.”

Nevertheless, in the middle of all the suffering he has caused, Miller finally found somebody who apparently hates and despises humanity just as much as he does, in Vice Presidential Press Secretary Katie Waldman. They were recently married at the Trump Hotel in D.C. with the “Hater-in-Chief” himself attending the festivities. How can America “get any greater,” particularly if you have the good fortune not to be a refugee condemned to rape, torture, abuse, family separation, beatings, disfiguration, burning, cutting, extortion or other horribles by this cruel, scofflaw, and “maliciously incompetent” regime?

JAMELLE BOUIE @ NYT: Is Trump Bringing Back Jim Crow? — This Time All Persons of Color Are Targets For Dehumanization! — “[W]e might be on a path that ends in something that is familiar from our past — authoritarian government with a democratic facade.”

Jamelle Bouie writes for The NY Times:

https://www.nytimes.com/2020/02/21/opinion/trump-authoritarian-jim-crow.html?referringSource=articleShare

When critics reach for analogies to describe Donald Trump — or look for examples of democratic deterioration — they tend to look abroad. They point to Russia under Vladimir Putin, Hungary under Viktor Orban, or Turkey under Recep Tayyip Erdogan. Trump, in this view, is a type — an authoritarian strongman. But it’s a foreign type, and his corrupt administration is seen as alien to the American experience.

This is a little too generous to the United States. It’s not just that we have had moments of authoritarian government — as well as presidents, like John Adams or Woodrow Wilson, with autocratic impulses — but that an entire region of the country was once governed by an actual authoritarian regime. That regime was Jim Crow, a system defined by a one-party rule and violent repression of racial minorities.

The reason this matters is straightforward. Look beyond America’s borders for possible authoritarian futures and you might miss important points of continuity with our own past. Which is to say that if authoritarian government is in our future, there’s no reason to think it won’t look like something we’ve already built, versus something we’ve imported.

Americans don’t usually think of Jim Crow as a kind of authoritarianism, or of the Jim Crow South as a collection of authoritarian states. To the extent that there is one, the general view is that the Jim Crow South was a democracy, albeit racist and exclusionary. People voted in elections, politicians exchanged power and institutions like the press had a prominent place in public life.

There’s a strong case to be made that this is wrong. “To earn the moniker,” argues the political scientist Robert Mickey in “Paths Out of Dixie: The Democratization of Authoritarian Enclaves in America’s Deep South, 1944-1972,” “democracies must feature free and fair elections, the safeguarding of rights necessary to sustain such elections — such as freedoms of assembly, association, and speech — and a state apparatus sufficiently responsive to election winners and autonomous from social and economic forces that these elections are meaningful.”

By that standard, the Jim Crow South was not democratic. But does that make it authoritarian? A look at the creation of Jim Crow can help us answer the question.

JAMELLE BOUIE’S NEWSLETTERDiscover overlooked writing from around the internet, and get exclusive thoughts, photos and reading recommendations from Jamelle. Sign up here.

Jim Crow did not emerge immediately after the Compromise of 1877 — in which Republicans agreed to withdraw federal troops from the South in return for the presidency — and the end of Reconstruction. It arose, instead, as a response to a unique set of political and economic conditions in the 1890s.

By the start of the decade, the historian C. Vann Woodward argued in his influential 1955 book “The Strange Career of Jim Crow,” opposition to “extreme racism” had relaxed to the point of permissiveness. External restraining forces — “Northern liberal opinion in the press, the courts, and the government” — were more concerned with reconciling the nation than securing Southern democracy. And within the South, conservative political and business elites had abandoned restraint in the face of a radical challenge from an agrarian mass movement.

Mickey notes how the Farmers’ Alliance and Populist Party “clashed with state and national Democratic parties on major economic issues, including debt relief for farmers and the regulation of business.” What’s more, “A Colored Farmers’ Alliance grew rapidly as well, and held out the possibility of biracial coalition-building.” This possibility became a reality in states like Alabama, Georgia and North Carolina, where Populists joined with a majority-black southern Republican Party to support common lists of candidates in “fusion” agreements against an explicitly elitist and white supremacist Democratic Party. Populists and Republicans won their greatest victories in that era in North Carolina, where they captured the state legislature and governor’s mansion, as well as local and county offices.

Democrats, among them large landowners and “New South” industrialists, responded with violence. Democratic paramilitary organizations — called “Red Shirts” — attacked Populist and Republican voters, suppressing the vote throughout the state. In Republican-controlled Wilmington, N.C., writes Mickey, “Democratic notables launched a wave of violence and killings of Republicans and their supporters, black and white, to take back the state’s largest city; hundreds fled for good.”

This basic pattern repeated itself throughout the South for the next decade. Working through the Democratic Party, conservative elites “repressed Populists, seized control of the state apparatus, and effectively ended credible partisan competition.” They rewrote state constitutions to end the vote for blacks as well as substantially restrict it for most whites. They gerrymandered states to secure the political power of large landowners, converted local elective offices into appointed positions controlled at the state level, “and further insulated state judiciaries from popular input.” This could have been stopped, but the North was tired of sectional conflict, and the courts had no interest in the rights of blacks or anyone else under the boot of the Democrats.

The southern Democratic Party didn’t just control all offices and effectively staff the state bureaucracy. It was gatekeeper to all political participation. An aspiring politician could not run for office, much less win and participate in government, without having it behind him. “What is the state?” asked one prominent lawyer during Louisiana’s 1898 Jim Crow constitutional convention, aptly capturing the dynamic at work, “It is the Democratic Party.” Statehood was conflated with party, writes Mickey, “and party disloyalty with state treason.”

Southern conservatives beat back Populism and biracial democracy to build a one-party state and ensure cheap labor, low taxes, white supremacy and a starkly unequal distribution of wealth. It took two decades of disruption — the Great Depression, the Great Migration and the Second World War — to even make change possible, and then another decade of fierce struggle to bring democracy back to the South.

It’s not that we can’t learn from the experiences of other countries, but that our past offers an especially powerful point of comparison. Many of the same elements are in play, from the potent influence of a reactionary business elite to a major political party convinced of its singular legitimacy. A party that has already weakened our democracy to protect its power, and which shows every sign of going further should the need arise. A party that stands beside a lawless president, shielding him from accountability while he makes the government an extension of his personal will.

I’m not saying a new Jim Crow is on the near horizon (or the far one, for that matter). But if we look at the actions of the political party and president now in power, if we think of how they would behave with even more control over the levers of the state, then we might be on a path that ends in something that is familiar from our past — authoritarian government with a democratic facade.

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

“[T]he courts had no interest in the rights of blacks or anyone else under the boot of the [Jim Crow] Democrats.”

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

In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.

— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)

How soon we forget!

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

Put simply: When some of the most despised and powerless among us ask the Supreme Court to spare their lives, the conservative justices turn a cold shoulder. When the Trump administration demands permission to implement some cruel, nativist, and potentially unlawful immigration restrictions, the conservatives bend over backward to give it everything it wants. There is nothing “fair and balanced” about the court’s double standard that favors the government over everyone else. And, as Sotomayor implies, this flagrant bias creates the disturbing impression that the Trump administration has a majority of the court in its pocket.

—Mark Joseph Stern in Slate.

COMPLICITY WATCH: Justice Sonia Sotomayor Calls Out “Men In Black” For Perverting Rules To Advance Trump/Miller White Nationalist Nativist Immigration Agenda! February 22, 2020

PWS

02-23-20

COMPLICITY WATCH: Justice Sonia Sotomayor Calls Out “Men In Black” For Perverting Rules To Advance Trump/Miller White Nationalist Nativist Immigration Agenda!

Mark Joseph Stern
Reporter, Slate

https://slate.com/news-and-politics/2020/02/sotomayor-trump-wealth-test-bias-dissent.html

Mark Joseph Stern reports for Slate:

. . . .

Put simply: When some of the most despised and powerless among us ask the Supreme Court to spare their lives, the conservative justices turn a cold shoulder. When the Trump administration demands permission to implement some cruel, nativist, and potentially unlawful immigration restrictions, the conservatives bend over backward to give it everything it wants. There is nothing “fair and balanced” about the court’s double standard that favors the government over everyone else. And, as Sotomayor implies, this flagrant bias creates the disturbing impression that the Trump administration has a majority of the court in its pocket.

Read the full article at the above link.

Here’s a link to Justice Sotomayor’s full dissent in Wolf v. Cook County:

SotomayorPublicChargeDissetn19a905_7m48

Justice Sonia Sotomayor

Here’s a “key quote” from Justice Sotomayor’s dissent:

These facts—all of which undermine the Government’s assertion of irreparable harm—show two things, one about the Government’s conduct and one about this Court’s own. First, the Government has come to treat “th[e] exceptional mechanism” of stay relief “as a new normal.” Barr v. East Bay Sanctuary Covenant, 588 U. S. ___, ___ (2019) (SOTOMAYOR, J., dissenting from grant of stay) (slip op., at 5). Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming lim- ited Court resources in each. And with each successive ap- plication, of course, its cries of urgency ring increasingly hollow. Indeed, its behavior relating to the public-charge

6 WOLF v. COOK COUNTY SOTOMAYOR, J., dissenting

rule in particular shows how much its own definition of ir- reparable harm has shifted. Having first sought a stay in the New York cases based, in large part, on the purported harm created by a nationwide injunction, it now disclaims that rationale and insists that the harm is its temporary inability to enforce its goals in one State.

Second, this Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. Ibid. But make no mistake: Such a shift in the Court’s own behavior comes at a cost.

Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timeta- bles and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay. (Here, the Government touts that in granting a stay in the New York cases, this Court “necessarily concluded that if the court of appeals were to uphold the preliminary injunctio[n], the Court likely would grant a petition for a writ of certiorari” and that “there was a fair prospect the Court would rule in favor of the govern- ment.” Application 3.) They demand extensive time and resources when the Court’s intervention may well be unnec- essary—particularly when, as here, a court of appeals is poised to decide the issue for itself.

Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of ir- reparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Mur- phy v. Collier, 587 U. S. ___, ___ (2019) (second statement of KAVANAUGH, J.) (slip op., at 4); see also id., at ___ (ALITO, J., joined by THOMAS and GORSUCH, JJ., dissenting from grant of stay) (slip op., at 6) (“When courts do not have ad- equate time to consider a claim, the decisionmaking process may be compromised”); cf. Dunn v. Ray, 586 U. S. ___ (2019) (overturning the grant of a stay of execution). Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances— where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decision making process that this Court must strive to protect.

I respectfully dissent.

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

Of course, the regime’s use of manufactured and clearly bogus “national emergencies” or fake appeals to “national security” is a perversion of both fact and law, as well as a mocking of Constitutional separation of powers. This obscenely transparent legal ruse essentially was invited by the Roberts and his GOP brethren. Roberts somewhat disingenuously claims to be a “student of history.” But, whether he takes responsibility for it or not, he has basically invited Trump & Miller to start a new “Reichstag Fire” almost every week with migrants, asylum seekers, Latinos, and the less affluent as the “designated usual suspects.”

Powerful as her dissent is, Justice Sotomayor actually understates the case against her GOP colleagues. Every racist, White Nationalist, nativist, and/or authoritarian movement in American history has been enabled, advanced, and protected by morally corrupt and intellectually dishonest jurists who have intentionally provided “legal cover” for those official misdeeds. How about “states rights,” “separate but equal,” “plenary power,” and a host of other now discredited legal doctrines used to justify everything from slavery to denying voting, and other Constitutional rights including life itself to African Americans? They were all used to “cover” for actions that might more properly have been considered “crimes against humanity.”

Who knows what legal blather Roberts and his four fellow rightist toadies will come up with to further promote the destruction of humanity and the disintegration of American democracy at the hands of Trump, Miller, Barr, Putin, and the rest of the gang?

But, courageous “outings” like those by Justice Sotomayor will help insure that history will be able to trace the bloody path of needless deaths, ruined lives, wasted human potential, official hate mongering, and unspeakable human misery they are unleashing directly to their doors and hold them accountable in a way that our current system has disgracefully failed to do.

Trump was right about at least one thing: There are indeed “GOP Justices” on the Supremes wholly owned by him and his party. They consistently put GOP rightist ideology and and authoritarianism above the Constitution, human rights, the rule of law, intellectual honesty, and simple human decency. Other than that, they’re a “great bunch of guys!”

Due Process Forever; Complicit Courts Never!

PWS

02-22-20

U.S. JUDGE IN ARIZONA FINDS THAT REGIME’S BORDER PATROL VIOLATES CONSTITUTION WITH GROSS CONDITIONS IN DETENTION FACILITIES! – Putting Humans In “Iceboxes” Is “Punitive” – Duh!

Raphael Carranza
Mexican Border Reporter
Arizona Republic

https://www.azcentral.com/story/news/politics/border-issues/2020/02/19/us-mexico-border-patrol-judge-sides-migrants-holding-cells-arizona/4812296002/

Rafael Carranza, The Republic | azcentral.com

TUCSON — A federal judge in Tucson ruled that the temporary U.S. Border Patrol holding facilities for migrants detained in southeastern Arizona, sometimes known as hieleras or iceboxes,”are presumptively punitive and violate the Constitution.”

U.S. District Judge David Bury issued his ruling on Wednesday granting plaintiffs a permanent injunction with additional requirements for Border Patrol.

The ruling follows a seven-day trial last month detailing overcrowding, inadequate food and medical care, as well as prolonged detention for migrants arrested in the Tucson Sector, which covers Cochise, Santa Cruz and Pima counties.

“The Plaintiffs, who are civil detainees in (Customs and Border Protection) holding cells, face conditions of confinement after 12 hours which are substantially worse than detainees face upon commitment to either a civil immigration detention facility or even a criminal detention facility, like a jail or prison,” the judge’s ruling said.

Follow Arizona politics? Our reporters stay on top of it all. Subscribe now to azcentral.com.

Bury said the “undisputed” evidence showed criminal inmates in jails and even migrants in longer-term civil detention are kept in better conditions than migrants in Border Patrol custody, including “an opportunity for uninterrupted sleep,” a second layer of clothing to keep warm, and a greater variety of food beyond frozen burritos, juice and crackers.

As part of the permanent injunction, the court ordered the Border Patrol to not hold migrants who have already been processed for more than 48 hours after they were initially booked.

The only circumstances under which Border Patrol can hold migrants for an extra 24 hours is “unless and until CBP can provide conditions of confinement that meet detainees’ basic human needs for sleeping in a bed with a blanket, a shower, food that meets acceptable dietary standards, potable water, and medical assessment performed by a medical professional,” Bury said.

By law, the Border Patrol is allowed to hold migrants for up to 72 hours at its holding facilities before transferring them to another federal agency, such as Immigration and Customs Enforcement.

During the trial, Border Patrol officials testified about the challenges they face in meeting that legal standard.

The average time in custody for migrants in 2019 was nearly 54 hours, according to the agency. But of the nearly 63,000 migrants processed in the Tucson Sector that year, more than 12,000 were held longer than the 72 hours allowed.

In 2016, Bury issued an injunction requiring Border Patrol officials in Tucson to provide clean sleeping mats and Mylar blankets to migrants held for longer than 12 hours.

The court added requirements forbidding migrants from sleeping around toilet areas of holding cells, noting that “being forced to sleep in a toilet area due to overcrowding offends the notions of common decency; it is unsanitary and degrading for all detainees who either have to sleep in the toilet area or try to use the toilet when others are sleeping there,” the ruling stated.

One of the witnesses during the trial, a 20-year-old woman from Honduras, described her experience in Border Patrol detention in April 2019. Identified as Witness B, the woman was pregnant at the time and talked about how she was nauseous and vomiting while in detention.

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During the time she was in custody, she slept in a holding room so crowded that the only space to lay down was next to the toilet, she described on Wednesday during a conference call where she was joined by the attorneys who represented her in the case.

“That whole night I was vomiting, I felt really sick. I was very worried because I didn’t know how my baby was doing,” the woman said. “Then they took me to the hospital, there they treated me and they told me that my baby was doing OK.”

After she was released from the hospital, agents returned her to a holding cell, where she said she continued feeling sick. Agents didn’t give her the medication doctors had prescribed until the morning she left the Border Patrol facility, she said.

Bury’s ruling notably found no evidence that Border Patrol’s parent agency, Customs and Border Protection, had purposely created the punitive conditions. Instead, he pointed out that the agency has stretched resources to “provide the best conditions” under current circumstances.

“A presumption, however, exists that the challenged conditions of confinement are punitive because, in the context of CBP operations, there is no legitimate governmental interest for the extended detentions currently occurring at CBP facilities,” the ruling said.

The judge further defined what type of showers Border Patrol needs to allow migrants to take. “A shower is a bath in which water is showered (as in to wet with a spray, fine stream, or drops) on the body,” the ruling said. “A ‘paper-shower’ or ‘shower-wipe,’ by definition, is not a shower.”

Border Patrol officials from the Tucson Sector did not respond to a request for comment.

The legal advocacy groups and private law firms that filed the lawsuit in 2015 celebrated Bury’s decision Wednesday, pointing to potential implications beyond the Tucson Sector.

Ruling BP Conditions Lawsuit by Joshua Ling on Scribd

“What the Constitution requires for individuals who are held in a pre-trial capacity, that has a much broader implication,” said Caroline Walters of the American Immigration Council, one of the groups that filed the lawsuit. “What the judge’s decision did today is sort of lay the groundwork for what these minimum standards should be.”

Walters said the group expects to hear more detail from Bury about implementing his permanent injunction.

“After several years we’re seeing that CBP has not changed the way that it treats people in confinement unless a court orders it,” said Alvaro Huerta, a staff attorney with the National Immigration Law Center. “And so we’re ecstatic that the court has finally recognized and made CBP change the way that it’s going to do its work.”

The Honduran woman who testified in court said she felt good knowing her testimony helped convince the judge to require the U.S. government to improve conditions for migrants like her.

“A lot of people from my country are still coming here because of the situation we are going through in my country,” she said. “So I feel really happy knowing that they will have better conditions.”

Vice President Mike Pence toured a Border Patrol facility in Texas after reports that migrants detained are being held in dangerous conditions. USA TODAY

Have any news tips or story ideas about the U.S.-Mexico border? Reach the reporter at rafael.carranza@arizonarepublic.com, or follow him on Twitter at @RafaelCarranza.

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

Here’s Judge Bury’s order:

https://www.scribd.com/document/447870402/Ruling-BP-Conditions-Lawsuit#from_embed

So, under Trump we treat asylum seekers worse than convicted criminals. But, don’t worry. Enabled by the Article III Courts, the regime is reducing the Gulag population and shrinking “Let ‘Em Die in Mexico” by simply abrogating asylum laws and the Constitution and sending folks to Guatemala, a dangerous country with no functioning asylum system, where they won’t get a fair chance to apply for asylum and will either be forced back to the countries they fled or forced to fend for themselves in a failed state. https://www.washingtonpost.com/immigration/remain-in-mexico-deportation-asylum-guatemala/2020/02/20/9c29f53e-4eb7-11ea-9b5c-eac5b16dafaa_story.html

Some might survive, some won’t. But, we don’t really care because it’s “out of sight, out of mind.”

I actually think that Judge Bury got part of this case wrong by incorrectly absolving the Border Patrol of intentionally abusing these individuals. Wrong! Essentially, this is the old “Good enough for Government work” cop out.

There are always alternatives to unconstitutional and punitive detention. The most obvious being releasing folks on bond if there is no constitutionally compliant alternative. Like other Government employees, Border Patrol Officers take an oath to uphold the Constitution. When tasked by the regime with carrying out Constitutional abuses, they actually have a duty to “just say no” even if that means resigning their jobs.

And, on a larger scale, it’s clear that the regime has chosen to waste money on unneeded and unauthorized walls, unneeded detention, frivolous legal actions, and details of Border Patrol personnel to punish cities that won’t go along with some of their unlawful behavior. That money could and should have been used to improve detention conditions to meet constitutional minimums. In simple terms, the regime made a conscious choice to violate the Constitution as part of its illegal and immoral “deterrence” program. It’s time for Article III Courts to stop enabling and papering over false, illegal “choices” by a scofflaw Administration.

Due Process Forever!

PWS

02-21-20

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