FEDERAL JUDGE AGAIN FAULTS DHS DETAINER PROGRAM

Joel Rubin
Joel Rubin
Federal Reporter
LA Times
Brittany Mejia
Brittany Mejia
Metro Reporter
LA Times

 

https://apple.news/AmD6XgoXgST-3d3Rtb9esMQ

 

Joel Rubin and Brittany Mejia report for the LA Times:

 

A federal judge in Los Angeles upends the way ICE may use local police to detain people it suspects of being in the country illegally.

A federal judge in Los Angeles this week issued his final judgment in a long-running immigration case, upending the way Immigration and Customs Enforcement uses local police to detain people it suspects of being in the country illegally.

The judgment filed Wednesday by U.S. District Judge Andre Birotte formalized a ruling he made in September that included a permanent injunction barring ICE from using error-prone databases when issuing so-called detainers, which are requests made to police agencies to keep people who have been arrested in custody for up two days beyond the time they would otherwise be held.

The earlier ruling also blocked ICE from issuing such requests to state and local law enforcement in states where there isn’t an explicit statute authorizing police to arrest someone or keep them in custody on an immigration detainer.

The ruling, which applied to ICE activity in all but a few states, appeared to have enormous implications for how the government targets people for deportation. However, attorneys from the U.S. Department of Justice and civil rights groups that brought the case disagreed over whether the injunction went into effect immediately, and ICE gave no indication it had changed its practices.

Last fall, an ICE spokesman said the agency was “reviewing the ruling and considering our legal options.”

This week’s judgment erased any ambiguity.

Under the judgment, ICE has three months to “adopt and implement any policies, practices, trainings, and systems changes necessary to ensure consistent and effective compliance” with the judgment, Birotte wrote. The judge ordered government lawyers to provide him with evidence it had implemented new policies.

“This judgment ensures that ICE has to comply with the court’s findings that the program it’s had for decades is grounded in unconstitutional practices that have to end,” said Jennie Pasquarella, an attorney with the American Civil Liberties Union, who helped argue the case.

The class-action lawsuit alleged that the databases that agents consult to issue detainers are so badly flawed by incomplete and inaccurate information that ICE officers should not be allowed to rely on them as the sole basis for keeping someone in custody.

In September, the judge agreed with that assessment, finding that the databases often contained “incomplete data, significant errors, or were not designed to provide information that would be used to determine a person’s removability.”

These errors, according to that decision, have led to arrests of U.S. citizens as well as noncitizens in the country lawfully. From May 2015 to February 2016, of the 12,797 detainers issued in that period, 771 were lifted, according to ICE data. Of those 771, 42 were lifted because the person was a U.S. citizen.

In the years since the lawsuit was filed, ICE has amended its policies, saying the changes made the process for issuing detainers more rigorous.

Previously, for example, agents would check individual databases in search of evidence of someone being in the country illegally. But three years ago, the agency launched a new system, in which 10 databases are automatically queried. A supervisor is required to sign off on decisions to issue detainers.

Birotte said in his judgement this week that conducting interviews with people suspected of being in the country illegally and checking the hard copy files the government keeps on immigrants is the most reliable source of information for issuing detainers.

The judge’s decision affects any detainer requests issued by an ICE officer in the federal court system’s Central District of California. That designation is significant because it includes the Pacific Enforcement Response Center, a facility in Orange County from which ICE agents send out detainer requests to authorities in 43 states, Guam and Washington, D.C.

Dozens of deportation officers and contract analysts work in shifts around the clock every day at the center. In 2018, the center issued 45,253 detainers and alerted agents at field offices to more than 28,000 additional people released from law enforcement custody before ICE could detain them.

If ICE tries to move its detainer operation to another facility, Birotte said, it must alert him in advance and the injunction would follow it to the new location.

All existing detainers issued by the enforcement center were also nullified by the judge’s ruling. Pasquarella said it was unknown how many people that affects, but said it is in “the thousands.”

Finally, Birotte gave ICE a month to alert the thousands of local and state police departments to which it sent detainer requests of his judgment and “its impact on detainers issued by ICE.” He ordered ICE to post its notice prominently on its website and said the agency “shall specifically inform these agencies that a detainer does not provide the legal authority for a state or local law enforcement officer to make a civil immigration arrest.”

The detainer process begins when police arrest and fingerprint a person. The prints are sent electronically to the FBI and checked against the prints of millions of immigrants in Homeland Security databases. If there is a match — such as someone who applied for a visa or was apprehended by Border Patrol — it triggers a review process, which often culminates with an agent at the center deciding whether to issue a detainer.

Approximately 70% of the arrests ICE makes occur after the agency is notified about someone being released from local jails or state prisons. In fiscal year 2019, ICE had lodged more than 160,000 detainers with local law enforcement agencies, according to the agency.

An ICE spokeswoman declined to comment on the judgment and would not say whether ICE had yet changed its practice of issuing detainer requests. Instead, she referred reporters to a statement released Thursday by the White House.

“A single, unelected, district judge in the Central District of California issued a legally groundless and sweeping injunction that — if not immediately lifted — will guarantee the release of innumerable criminal illegal aliens into our communities putting citizens at dire risk,” the statement said. “This ruling undermines the pillars of immigration enforcement and blocks traditional and vital law enforcement cooperation that has occurred for decades.”

 

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Judge Andre Birotte found that the ICE detainer program is riddled with legal errors. Not too surprising. In addition to using DHS’s inherently unreliable databases, immigration “detainers” are issued by immigration agents, not neutral and detached magistrates as they should be, which makes them constitutionally suspect and has led to rulings across the country that they should not be honored.

 

If I were the ACLU, however, I wouldn’t “do the victory dance” yet. Led by the complicit “J.R. Five,” the Supremes often have shown themselves to be willing, sometimes enthusiastic, enablers of the regime’s White Nationalist campaign to dehumanize and “Dred Scottify” immigrants under our laws.

 

As the ACLU accurately has stated: “The fundamental constitutional protections of due process and equal protection embodied in our Constitution and Bill of Rights apply to every person, regardless of immigration status.”

 

Unfortunately, the “J.R. Five” has ignored the rule of law and our Constitution when it comes to protecting the rights of immigrants. They have managed to “tune out” their own immigration heritages, their own good fortune and privileged positions, and turn a deaf ear to humanity and its unnecessary suffering. Instead they have allied themselves with Trump, Stephen Miller, and the other White Nationalists in subjecting immigrants and other people of color to the “New Era of Jim Crow.”

 

Someday, if America survives as a democracy, we will get “regime change.” But, the problems of a life-tenured judiciary infected with too many at its highest levels who are unwilling to stand up for human rights and/or who are driven by a twisted far-right ideology incorporating many of the worst aspects of white supremacy and its abuses of power over history will not necessarily disappear overnight.

Due Process Forever!

 

PWS

 

02-09-20

 

 

 

 

LATEST JOUSTING NEWS FROM THE ROUND TABLE – Amicus Brief Filed With Supremes In Pereida v. Barr (Categorical Approach) With Lots Of Help From Our Pro Bono Heroes @ PILLSBURY WINTHROP SHAW PITTMAN LLP

Here’s the full brief:

Pereida-Supremes-Amicus-19-438 Amici Brief Former US Immigration Judges

Here’s a summary of our argument:

 

SUMMARY OF ARGUMENT

This brief presents the view of former IJs and BIA members on an issue of vital importance to the functioning of our immigration system: how requiring IJs to assess inconclusive conviction records to determine whether a prior criminal conviction disqualifies a noncitizen from applying for relief from removal is contrary to longstanding application of the categorical approach, will create further delays in an already overburdened immigration system, and will deprive IJs of their discretionary power.

Mr. Pereida is correct that inconclusive state conviction records cannot satisfy the categorical approach’s requirement that the state conviction necessarily establishes federal predicate offenses. Affirming this interpretation of the categorical approach will promote the expeditious and fair adjudication of the hundreds of thousands of cases pending in immigration courts.

7

The Government incorrectly asserts that when the conviction record is inconclusive as to whether a conviction was for a disqualifying offense, a noncitizen does not carry his or her burden of proof to show statutory eligibility for relief. That argument is faulty because it would require IJs to conduct an inquiry, which the Government wrongly argues is governed by the Immigration and Nationality Act’s (“INA”) burden of proof allocation, focusing on the facts underlying the conviction. Moreover, rather than aid IJs in resolving cases, the Government’s position would impede the application of the modified categorical approach by forcing IJs to delay the proceedings. IJs will be forced to wait for the noncitizen to obtain and present criminal records that may not even exist or be obtainable and then examine those criminal records to make factual determinations the categorical approach is meant to avoid. The Government’s novel gloss on the modified categorical approach is antithetical to the analysis IJs have employed for decades and would preclude the exercise of discretion essential to the functioning of immigration courts.

Contrary to the Government’s contention, the modified categorical approach does not involve a separate factual inquiry. The requisite analysis is a legal one: whether the conviction rests upon nothing more than the minimum conduct necessary for a conviction. Deviating from the categorical approach’s sole focus on a direct and uncomplicated comparison between state and federal offenses, as the Government would require, threatens to disturb the uniformity of outcomes in similar circumstances that the categorical approach safeguards. Mr. Pereida’s interpretation of

8

the categorical approach would avoid this undesirable outcome.

For the reasons explained in the balance of this brief, Mr. Pereida’s solution is the correct one. Section I provides a real-world overview of how removal proceedings operate, focusing on the typical sequence of immigration court proceedings, how criminal records are introduced and considered, and the limited ability of noncitizens (many of whom are detained during such proceedings) to procure relevant records. Section II discusses the administrability of the categorical approach and its modified variant, highlighting the benefits of the approach, how Mr. Pereida’s position is in harmony with the way in which IJs apply the approach to reach just results, and how the Government’s interpretation would impede the workings of immigration courts. Finally, Section III explains how the Government’s position would curtail IJs’ discretionary power to analyze the facts of each case to reach a just result.

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

Many, many, many thanks to David G. Keyko, Counsel of Record, Robert L. Sills, Matthew F. Putorti, Stephanie S. Gomez, Jihyun Park and the rest of the amazing pro bono team over at Pillsbury for their outstanding and timely research and writing.

And, as always, it’s a privilege and an honor to be listed with the rest of my friends and colleagues on our Round Table of Former Immigration Judges!

Knjightess
Knightess of the Round Table

Due Process Forever!

 

PWS

02-07-20

 

 

 

GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”

Fernanda Echavarri
Fernanda Echavarri
Reporter
Mother Jones

https://apple.news/AyKjNs5gOQJqIJ2_IeeQvcg

Fernanda Echavarri reports for Mother Jones:

“A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts

SAN DIEGO IMMIGRATION COURT, COURTROOM #2;
PRESIDING: JUDGE LEE O’CONNOR

Lee O’Connor has been in his courtroom for all of two minutes before a look of annoyance washes over his face.

Eleven children and six adults—all of them from Central America, all of them in court for the first time—sit on the wooden benches before him. They’ve been awake since well before dawn so they could line up at the US-Mexico border to board government buses headed to immigration court in downtown San Diego, Kevlar-vested federal agents in tow. Like the dozens of families jam-packed into the lobby and the six other courtrooms, they’ve been waiting out their asylum cases in Mexico, often for months, as part of the Trump administration’s controversial border policy, the Migrant Protection Protocols.

O’Connor has a docket full of MPP cases today, like every day. Before he gets to them, though, he quickly postpones a non-MPP case to January 2021, explaining to a man and his attorney that he simply doesn’t have time for them today, motioning to the families in the gallery. While he’s doing this, the little girl in front of me keeps asking her mom if she can put on the headphones that play a Spanish translation of the proceedings. A guard motions the little girl to be quiet. 

For months, immigration attorneys and judges have been complaining that there’s no fair way to hear the cases of the tens of thousands of Central Americans who have been forced to remain on the Mexican side of the border while their claims inch through the courts. MPP has further overwhelmed dockets across the country and pushed aside cases that already were up against a crippling backlog that’s a million cases deep, stranding immigration judges in a bureaucratic morass and families with little hope for closure anytime in the near future.

I went last month to San Diego—home to one of the busiest MPP courts, thanks to its proximity to Tijuana and the more than 20,000 asylum seekers who now live in shelters and tent cities there—expecting to see logistical chaos. But I was still surprised at how fed up immigration judges like O’Connor were by the MPP-driven speedup—and by the extent to which their hands were tied to do anything about it.

Once O’Connor is done rescheduling his non-MPP case, he leans forward to adjust his microphone, rubs his forehead, and starts the group removal hearing. The interpreter translates into Spanish, and he asks if the adults understand. “Sí,” they say nervously from the back of the courtroom. O’Connor goes down his list, reading their names aloud with a slight Spaniard accent, asking people to identify themselves when their names are called. He reprimands those who do not speak up loud enough for him to hear.

O’Connor, who was appointed to the bench in 2010, is known for being tough: Between 2014 and 2019, he has denied 96 percent of asylum cases. He explains to the migrants that they have the right to an attorney, although one will not be provided—there are no public defenders in immigration court. O’Connor acknowledges finding legal representation from afar is difficult, but he tells them it’s not impossible. He encourages them to call the five pro bono legal providers listed on a sheet of paper they received that day. The moms sitting in front of me have their eyes locked on the Spanish interpreter, trying to absorb every bit of information. Their kids try their best to sit quietly.

As he thumbs through the case files, O’Connor grows increasingly frustrated: None of them has an address listed. “The government isn’t even bothering to do this,” he grumbles. The documents for MPP cases list people’s addresses as simply “Domicilio Conocido,” which translates to “Known Address.” This happens even when people say they can provide an address to a shelter in Mexico or when they have the address of a relative in the United States who can receive their paperwork. “I’ve seen them do this in 2,000 cases since May,” O’Connor says, and the Department of Homeland Security “hasn’t even bothered to investigate.” He looks up at the DHS attorney with a stern look on his face, but she continues shuffling paperwork around at her desk.

O’Connor picks up a blue form and explains to the group that they have to change their address to a physical location. The form is only in English; many of the adults seem confused and keep flipping over their copies as he tells them how to fill it out. O’Connor tells them they have to file within a week—perhaps better to do it that day, he says—but it’s unclear to me how they could follow his exacting instructions without the help of an attorney. He points out other mistakes in the paperwork filed by DHS and wraps up the hearing after about 45 minutes. The families don’t know that’s typical for a first hearing and seem perplexed when it ends. 

O’Connor schedules the group to come back for their next hearing in five weeks at 8:30 a.m. That will mean showing up at the San Ysidro port of entry at 4:30 a.m.; the alternative, he says, is being barred from entering the United States and seeking forms of relief for 10 years. “Do you understand?” he asks. The group responds with a hesitant “Sí.”

The Trump administration designed MPP to prevent people like them from receiving asylum, and beyond that, from even seeking it in the first place. First implemented in San Diego in late January 2019 to help stem the flow of people showing up at the southern border, the policy has since sent somewhere between 57,000 and 62,000 people to dangerous Mexican cities where migrants have been preyed upon for decades. Their cases have been added to an immigration court that already has a backlog of 1,057,811 cases—up from 600,000 at the time when Obama left office—according to data obtained by the Transactional Records Access Clearinghouse at Syracuse University.

The skyrocketing immigration court backlog

View on the original site.

According to immigration judge Ashley Tabaddor, who spoke to me in her capacity as union president of the National Association of Immigration Judges, MPP has constituted a fundamental change to the way courts are run. DHS, she says, is “creating a situation where they’re physically, logistically, and systematically creating all the obstacles and holding all the cards.” The MPP program has left the court powerless, “speeding up the process of dehumanizing the individuals who are before the court and deterring anyone from the right to seek protection” All this while the Department of Justice is trying to decertify Tabbador’s union—the only protection judges have, and the only avenue for speaking publicly about these issues—by claiming its members are managers and no longer eligible for union membership. Tabaddor says the extreme number of cases combined with the pressure to process them quickly is making it difficult for judges to balance the DOJ’s demands with their oath of office.

Immigration attorneys in El Paso, San Antonio, and San Diego have told me they are disturbed by the courtroom disarray: the unanswered phones, unopened mail, and unprocessed filings. Some of their clients are showing up at border in the middle of the night only to find that their cases have been rescheduled. That’s not only unfair, one attorney told me, “it’s dangerous.” Central Americans who speak only indigenous languages are asked to navigate court proceedings with Spanish interpreters. One attorney in El Paso had an 800-page filing for an asylum case that she filed with plenty of time for the judge to review, but it didn’t make it to the judge in time. 

As another lawyer put it, “The whole thing is a fucking disaster that is designed to fail.”

Guillermo Arias/Getty People line up at the San Ysidro border crossing in Tijuana in May 2019.

COURTROOM #4; PRESIDING: JUDGE PHILIP LAW

Down the hall, a Honduran woman I’ll call Mari stands up next to her attorney and five-year-old son, raises her right hand, and is sworn in. 

Mari’s hearing isn’t much of a hearing at all. Stephanie Blumberg, an attorney with Jewish Family Service of San Diego, who is working the case pro bono, asks for more time because she only recently took the case; Judge Philip Law says he will consolidate the cases of mother and child into one; and he schedules her next hearing for the following week at 7:30 a.m., with a call time of 3:30 a.m. at the border.

Just as it’s about to wrap up, Bloomberg says her client is afraid to return to Mexico. “I want to know what is going to happen with me. I don’t want to go back to Mexico—it’s terrible,” Mari says in Spanish, an interpreter translating for the judge. “I have no jurisdiction over that,” Law says. “That’s between you and the Department of Homeland Security.” Law then turns to the DHS attorney, who says he’ll flag the case and “pass it along.”

While nine families begin their MPP group hearing, Mari tells me back in the waiting room that she and her son crossed the border in Texas and then asked for asylum. They were detained for two days and then transported by plane to San Diego, where she was given a piece of paper with a date and time for court and then released in Tijuana. She didn’t know anyone, barely knew where she was, and, trying to find safety in numbers, stuck with the group released that day. Two days after US immigration officials sent her to Tijuana, she was raped.

Mari’s voice gets shaky, and she tries to wipe the tears from her eyes, but even the cotton gloves she’s wearing aren’t enough to keep her face dry. I tell her we can end the conversation and apologize for making her relive those moments. She looks at her son from across the room and says she’d like to continue talking.

“I thought about suicide,” she whispers. “I carried my son and thought about jumping off a bridge.” Instead, she ended up walking for a long time, not knowing what to do or what would happen to them because they didn’t have a safe place to go.

“I haven’t talked to my family back home—it’s so embarrassing because of the dream I had coming here, and now look,” she says. “We’re discriminated against in Mexico; people make fun of us and the way we talk.” Her boy was already shy but has become quieter and more distrusting in recent months.

In the last year, I’ve spoken to dozens of migrants in border cities like Ciudad Juárez and Tijuana who share similarly horrific stories. Human Rights First has tracked more than 800 public reports of torture, kidnapping, rape, and murder against asylum seekers sent to Mexico in the last year. A lawsuit brought by the American Civil Liberties Union, Southern Poverty Law Center, and Center for Gender and Refugee Studies is challenging MPP on the grounds that it violates the Immigration and Nationality Act, and the “United States’ duty under international human rights law” not to return people to dangerous conditions.

“The system has not been set up to handle this in any way,” says Kate Clark, senior director of immigration services with Jewish Family Service of San Diego, one of the groups listed on the pro bono sheet Judge O’Connor handed out earlier in the day. They’re the only ones with a WhatsApp number listed, and their phones are constantly ringing because “it’s clear that people don’t know what’s going on or what to expect—and they’re in fear for their lives,” Clark says. Still, her 8-person team working MPP cases can only help a small percentage of the people coming through the courtroom every day.

Later that afternoon, shortly after 5, two large white buses pull up to the court’s loading dock. Guards in green uniforms escort about 60 people out from the loading dock. Moms, dads, and dozens of little kids walk in a straight light to get on a bus. They are driven down to the border and sent back to Tijuana later that night.

A few days later, Mari’s attorney tells me that despite raising a fear of retuning to Mexico in court, US port officials sent Mari back to Tijuana that night.

COURTROOM #2; PRESIDING: JUDGE LEE O’CONNOR

I find myself back in O’Connor’s courtroom for his afternoon MPP hearings. This time, the only people with legal representation is a Cuban family who crossed in Arizona in July 2019 and turned themselves in to Border Patrol agents. This is their first time in court, and their attorney calls in from out of state.

Right away, O’Connor wants to address a different kind of clerical error from the one that bothered him earlier in the day—and one that he thinks matters even more. It involves the first document that DHS issues to “removable” immigrants, known as a Notice to Appear (NTA) form. Although the form allows agents to check a box to categorize people based on how they encountered immigration officials, O’Connor points out that in this case it was left blank—and that “this is fairly typical of the overwhelming majority of these cases.”

He isn’t the first or only judge to notice this; I heard others bring up inconsistent and incomplete NTAs. Border officials are supposed to note on the form if the people taken into custody are “arriving aliens,” meaning they presented at the port of entry asking for asylum, or “aliens present in the United States who have not been admitted or paroled,” meaning they first entered illegally in between ports of entry. Thousands of MPP cases have forms without a marked category. As far as O’Connor is concerned, that’s a crucial distinction. He believes that this Trump administration policy shouldn’t apply to people who entered the country without authorization—meaning countless immigrants who applied for MPP should be disqualified from the get-go.

In the case of the Cuban family, like dozens more that day, the DHS attorney filed an amended NTA classifying them as “arriving aliens.” O’Connor points out is not how they entered the United States. The DHS attorney is unphased by the judge’s stern tone and came prepared with piles of new forms for the other cases of incomplete NTAs. The family’s lawyer says maybe the government made a mistake. O’Connor, unsatisfied, interrupts her: “There was no confusion. I’ve seen 2,000 of theseâ¦the government is not bothering to spend the time.” After a lengthy back-and-forth, a testy O’Connor schedules the family to come back in three weeks.

O’Connor’s stance and rulings on this issue have broader implications. He terminated a case in October because a woman had entered the country illegally before turning herself in and wrote in his decision that DHS had “inappropriately subjected respondent to MPP.” He is among the loudest voices on this issue, saying that MPP is legal only when applied to asylum-seekers presenting at legal ports of entry—though it’s unclear to many lawyers what it might mean for their clients to have their cases terminated in this way. Would these asylum seekers end up in immigration detention facilities? Would they be released under supervision in the United States? Would they be deported back to their home countries?

Since MPP cases hit the courts last March, asylum attorneys have been critical of DHS for not answering these questions. I was present for the very first MPP hearing in San Diego and saw how confused and frustrated all sides were that DHS didn’t seem to have a plan for handling these cases. Now, almost a year later, little has changed.

Tabaddor, the union president, tells me that “there are definitely legal issues that the MPP program has presented” and that judges are having to decide whether the documents “are legally sufficient.” “The issue with DHS—frankly, from what I’ve heard—is that it seems like they’re making it up as they go,” she says.

Last week, Tabaddor testified in front of the House Judiciary Committee and for the independence of immigration courts from the political pressures of federal law enforcement. There are approximately 400 immigration judges across more than 60 courts nationwide, and almost half of those judges have been appointed during the Trump era. (According to a recent story in the Los Angeles Times, dozens of judges are quitting or retiring early because their jobs have become “unbearable” under Trump.)

California Democrat Zoe Lofgren, an immigrants’ rights supporter in Congress, argued during the hearing that the immigration courts are in crisis and the issue requires urgent congressional attention. “In order to be fully effective, the immigration court system should function just like any other judicial institution,” she said. “Immigration judges should have the time and resources to conduct full and fair hearings, but for too long, the courts have not functioned as they should—pushing the system to the brink.”

Guillermo Arias/Getty Asylum seekers in Tijuana in October

COURTROOM #1; PRESIDING: JUDGE SCOTT SIMPSON

“I don’t want any more court,” a woman from Guatemala pleads just before lunchtime. “No more hearings, please.”

Unlike many of the people who were there for their first hearing when I observed court in San Diego, this woman has been to court multiple times since mid-2019. No matter how hard she tried, she couldn’t find a lawyer, she tells Judge Scott Simpson. She’s had enough.

“We’ve reached a fork on the road, ma’am,” Simpson says in a warm, calm tone. “You either ask for more time for an attorney to help you or you represent yourself.”

“No, it’d be a loss since I don’t know anything about the law,” the woman responds, her voice getting both louder and shakier. Simpson explains to her again the benefits of taking time to find an attorney.

“It’s been almost a year. I don’t want to continue the case. I want to leave it as is,” she tells him. After more explanation from the judge, the woman says she’d like to represent herself today so that decisions can be made. Simpson asks what she would like to do next, and the woman says, “I want you to end it.”

This woman’s pleas are increasingly common. Tabaddor says MPP has taken “an already very challenging situation and [made] it exponentially worse.” The new reality in immigration courts “is logistically and systematically designed to just deter people from seeking or availing themselves of the right to request protection,” Tabaddor says.

After hearing the Guatemalan woman ask for the case to be closed multiple times, Simpson takes a deep breath, claps his hands, and says there are four options: withdrawal, administrative close, dismissal, or termination. He explains each one, and after 10 minutes the woman asks for her case to be administratively closed. The DHS attorney, however, denies that request. Simpson’s hands are tied.

The judge tells the woman that because DHS filed paperwork on her case that day, and because it’s only in English, that he’s going to give her time to review it, because “as the judge I don’t think it would be fair for you to go forward without the opportunity to object to that.” He schedules her to come back in a month.

“MPP is not a program I created,” he says. “That decision was made by someone else.” 

Additional reporting by Noah Lanard.

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

“Malicious incompetence,” “Aimless Docket Reshuffling,” “Man’s Inhumanity to Man” — it’s all there on public display in this deadly “Theater of the Absurd.”

Here, from a recent Human Rights Watch report on over 200 of those illegally returned to El Salvador without Due Process and in violation of the rule of law:

138 Killed;

70 Sexually abused, tortured, or otherwise harmed.

Here is the HRW report as posted on Courtside:

https://immigrationcourtside.com/2020/02/06/how-americas-killer-courts-promote-crimes-against-humanity-human-rights-watch-trump-his-white-nationalist-sycophants-toadies-tout-lawless-policies-that-violate-legal-obligations-he/

Where, oh where, has our humanity and human decency gone?

And, how do spineless jurists on Article III Courts who continue to “rubber stamp” and overlook the disgraceful abrogation of Due Process and fundamental fairness going on in a grotesquely biased and mismanaged “court system” controlled by a White Nationalist, nativist regime look at themselves in the mirror each morning. Maybe they don’t.

Abuse of the most vulnerable among us might seem to them to be “below the radar screen.” After all, their victims often die, disappear, or are orbited back to unknown fates in dangerous foreign lands. Out of sign, out of mind! But, what if it were their spouses, sons, and daughters sent to Tijuana to be raped while awaiting a so-called “trial.”

Rather than serving its intended purpose, promoting courage to stand up against government tyranny and to defend the rights of individuals, even the downtrodden and powerless, against Government abuse of the law, life tenure has apparently become something quite different. That is, a refuge from accountability and the rules of human decency.

John Roberts, his “Gang of Five,” and the rest of the Article III enablers will escape any legal consequences for their actions and, perhaps more significant, inactions in the face of unspeakable abuses of our Constitution, the rule of law, intellectual honesty, and the obligations we owe to other human beings.

How about those cowardly 9th Circuit Judges who ignored the law, betrayed human decency, and enabled rapes, killings, and other “crimes against humanity” by “green lighting” the unconstitutional and clearly illegal “MPP” — better known as “Let ‘Em Die in Mexico” with their absurdist legal gobbledygook in Innovation Law Lab v. McAleenan. They are enjoying life in the ivory tower while their human victims are suffering and dying.

But, folks like Fernanda and many others are recording their abuses which will live in history and infamy, will forever tarnish their records, and be a blot on their family names for generations to come. 

There is no excuse for what is happening at our borders and in our Immigration Courts today. Constantly Confront Complicit Courts 4 Change! Flood the Article IIIs with examples and constant reminders of their handiwork and dereliction of duty! Let the bodies pile up on their collective doorsteps until the stench is so great that even they can no longer ignore and paper over their own complicity and moral responsibility with legal banalities. Force them to see their own faces and the faces of their loved ones in the scared, tormented faces and ruined lives of those destroyed by our scofflaw regime and its enablers. 

Also, if you haven’t already done so, tell your Congressional representatives that you have had enough of this grotesque circus!

Here’s what I wrote to my legislators, and some from other states, recently:

I hope you will also speak out frequently against the grotesque abuses of human rights, Due Process, and human decency, not to mention the teachings of Jesus Christ and almost all other religious traditions, that the Trump Administration is carrying out against refugees of color, many of them desperate and vulnerable women and children, at our Southern Border.

Additionally, under Trump, the U.S. Immigration Courts, absurdly and unconstitutionally located within a politically biased U.S. Department of Justice, have become a mockery of justice, Due Process, and fundamental fairness. I urge you to join with other legislators in abolishing the current failed (1.1 million case backlog) and unfair system and replacing it with an independent Article I U.S. Immigration Court. It’s time to end the abuse! This must be one of our highest national priorities.

I invite you and your staff to read more about the grotesque abuses of law, human rights, and fundamental human decency being committed daily on migrants and other vulnerable humans by the Trump Administration in my blog: immigrationcourtside.com, “The Voice of the New Due Process Army.” This is not the America I knew and proudly served for more than three decades as a Federal employee.

Due Process Forever; Trump’s Perverted View of America Never!

Thanks again.

With my appreciation and very best wishes,

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Adjunct Professor, Georgetown Law

Due Process Forever; Complicit Courts & Feckless Legislators, Never!

PWS

02-07-20

 

JIM WALLIS @ SOJOURNERS: Trump Uses National Prayer Breakfast To Deliver Totally Inappropriate Self-Serving Rant! — “At the National Prayer Breakfast, Donald Trump extolled his own self-defined accomplishments — then he asked attendees to vote for him. Prayer, confession, love for our neighbors and enemies, and humility before God were entirely absent.”

Jim Wallis
Jim Wallis
American Theologian
Founder & Editor, Sojourners

http://go.sojo.net/site/R?i=Xw3ZwvLwGW9IUlZj-j0dCw

I did not attend the National Prayer Breakfast this morning, though I have done so in the past. The longtime Washington tradition brings together members of Congress from both political parties along with thousands of faith leaders, and every president since Dwight D. Eisenhower has attended. But this is not a time in our nation for habitual or vague prayers for an audience, given the moral and political crisis we now find ourselves in — or one that starts with the president of the United States holding up a newspaper headline saying “Acquitted,” and quickly invoking an impeachment process corrupted by partisan politics.

While I agree that different political philosophies and opinions and honest partisan differences can be overcome by prayer and fellowship between believers, there is much more involved here. Donald Trump began a National Prayer Breakfast by celebrating his personal political success in a shamefully partisan process, underscoring that the moral health of our public life, the very soul of our democracy, and the integrity of faith are at stake.

Fortunately, keynote speaker Arthur Brooks spoke about Jesus’ command to love our enemies and attacked the “contempt” for each other that now defines our culture and politics. But the president’s speech that followed kicked off with him saying, “I don’t know if I agree with Arthur,” revealing his contempt for those who disagree with him and again demonstrating the arrogance, lies, corruption, and contempt that has taken over our public life. At the National Prayer Breakfast, Donald Trump extolled his own self-defined accomplishments — then he asked attendees to vote for him. Prayer, confession, love for our neighbors and enemies, and humility before God were entirely absent. Toward the end of his speech, Trump, off script, briefly admitted he still has a lot to learn. Thank God.

In one of the bright moments of the morning, Congressman John Lewis (D-Ga.) gave the closing benediction (by video since his cancer prevented his presence). He quoted Dr. Martin Luther King Jr., who said, “I have decided to stick with love, for hate is too heavy a burden to bear.” This icon of the civil rights movement spoke of how he was beaten almost to death on the Edmund Pettus Bridge in Selma, Ala., on Bloody Sunday, and then said, “But I never hated the people who beat me because I chose the way of peace, the way of love, and the way of nonviolence. For the God Almighty helped me.”

Lewis ended with an admonition to all the attendees — and to the nation — to “go in peace, go in love, and we commit to treating each other as we would treat ourselves. Amen.”

So, I was glad that I stayed home from the prayer breakfast — to pray on my own. Here is my prayer.

Dear Lord,

First, I ask you, Lord, for the courage that comes from faith — courage to stand up to the intensity of constant political corruption, the growing divisiveness in our culture, the spreading of fear, the downward spiral of hatred, and the ugly spirit of anger and even violence that is now shaping our politics.

I ask you, Lord, to defend the truth over the perpetual lies in Washington, D.C. And I pray that you heal the politics of grievance and blame and racial hostility that make people want to believe the lies. May we come to know what Jesus taught us: “You will know the truth and the truth will set you free.” And may we come to understand that losing the truth will mean losing our freedom, that the opposite of the truth that sets us free are the lies that lead us to bondage — from presidential lies to political party lies to social media lies.

I ask you, Lord, to remind all of us who say we are your followers of your two great commandments:

To love God with our whole hearts, minds, and souls, with our whole selves — which must set us free from our nationalist idolatry of putting America first, and of white supremacy, militarism, and materialism, the three giant triplets of evil that Rev. Dr. Martin Luther King prophetically called out.

To love our neighbor as ourselves, to treat others as we want to be treated, to love those who are different from us, as Jesus instructed us to do when asked, “Who is my neighbor?” This must set us free from ignoring or even targeting our neighbors who are not like us. And, yes, to extend that neighbor love even to our enemies.

May we reread and obey Jesus’ clear teachings that the “least of these” are the most important — the opposite of what we see in Washington, D.C. May we each ask you, Lord, what we must all do now if what Matthew’s Gospel says is true — that how we treat the hungry, the thirsty, the naked, the stranger (the immigrant and refugee), the sick, and the prisoner is how we treat Christ himself.

Teach us to say to all our fellow citizens increasingly ruled by fear what Jesus says to us, “Be not afraid.” Free us Lord from what Timothy’s epistle calls the “spirit of fear,” which is now a campaign strategy in American politics.

Remind us, Oh Lord, of what you taught us about leadership — defined by service, not by dominance. Teach us what is means for us to be servant leaders and to look for that in our elected leaders.

In a culture increasingly ruled by conflict and polarization, teach us what it would mean and cost for us to follow Jesus who says, “Blessed are the Peacemakers, for they shall be called the children of God.” Lord, help us to find the strength to be those children of God who show love and not contempt for our enemies and seek to resolve our deepening conflicts.

In particular, on this day, in this week of political tumult, I give thanks for the human examples of courage based on faith.

I give thanks for Sen. Mitt Romney who became the first senator ever to vote to impeach a president from his own party saying, “I take an oath before God as enormously consequential.” And I am grateful for the long poignant pause, taken in the Senate chamber, when this senator emotionally talked about his faith.

I also give thanks for Alabama Sen. Doug Jones for risking his political career, which we seldom see in either political party, by voting for what he believed was “right over wrong.”

I pray for those presidential candidates of the opposition Democratic Party to live by their own faith and values and to not mimic the spirit and tactics of the president they oppose.

And, as we are biblically instructed, I pray for all our leaders, including our President Donald Trump, that he might learn the ways of Jesus, experience the continual conversion to Christ that changes all of us, and find the forgiveness and humility that we all need in the presence of God.

I pray for both parties to not be selective over who is entitled to life and dignity. Our theology of who bears the image of God must be consistent.

I pray for Christian believers to not put their political divisions first, but enter into a new conversation about Jesus — what he said, what he meant, and what that means now in our public life. Let us enter into those honest and vital conversations about who Jesus is and who he wants us to be, especially between our black, brown, and white churches.

I pray that citizens of different political persuasions refrain from attacking each other’s character, but rather try to understand each other’s deep concerns and hopes for their futures. In particular, help us to talk together about our hopes and fears for our children’s lives and learn that we want the same things for our kids’ futures.

I pray that religious believers in the United States put their faith over their politics, that citizens put their country over their political party, and that nobody in our country be exempt from the rule of law and the principles of our constitutional democracy.

In the midst of what is now a political, constitutional, moral, and spiritual crisis, with no certainty of how it will be resolved, we all pray, “Lord have mercy.”

Oh Lord, replace our feelings of helplessness and hopelessness with a commitment to courageous action and the hope that we believe can only come from you.

“Now faith is the substance of things hoped for, and the evidence of things not seen.” Hebrews 11:1

Amen

 

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

Amen!

PWS

02-06-20

 

U.S. JUDGE THWARTS (FOR NOW) TRUMP REGIME’S PERSECUTION/PROSECUTION OF HUMANITARIAN AID WORKERS – Regime’s Religious Hypocrisy Runs Deep!

Carol Kuruvilla
Carol Kuruvilla
Religious Affairs
Reporter
HuffPost

https://www.huffpost.com/entry/trump-no-more-deaths-religious-liberty_n_5e3adf4ec5b6d032e76d1313

 

Carol Kuruvilla in HuffPost:

 

A federal judge has ruled that President Donald Trump’s administration, which often boasts about defending religious liberty, has violated the religious rights of a group of volunteers at the U.S.-Mexico border.

The Trump administration has spent years cracking down on the work of No More Deaths/No Más Muertes, a Unitarian Universalist ministry in Arizona that provides water and food to migrants crossing a treacherous stretch of desert along the border where dozens have died. Various members of No More Deaths have faced fines and even jail for what they consider to be faith-based, life-saving humanitarian aid.

But for the second time in months, a judge has ruled that the government shouldn’t be punishing these volunteers for putting their faith into practice.

U.S. District Judge Rosemary Márquez ruled Monday that four volunteers who left water and food for migrants at the Cabeza Prieta National Wildlife Refuge were acting according to their “sincerely held religious beliefs.” As a result, the government substantially burdened the volunteers’ religious liberty by prosecuting them for this work, Marquez said.

“Given Defendants’ professed beliefs, the concentration of human remains on the [refuge], and the risk of death in that area, it follows that providing aid on the [refuge] was necessary for Defendants to meaningfully exercise their beliefs,” the judge wrote.

Márquez’s ruling reversed the decision of a lower court, where another judge dismissed the volunteers’ religious liberty claims and sentenced them to probation and fines last March.

A federal judge has ruled that four volunteers who left water and food for migrants at the Cabeza Prieta National Wildlife Refuge were acting according to their “sincerely held religious beliefs.” From left, they are Natalie Hoffman, Madeline Huse, Zaachila Orozco-McCormick, and Oona Holcomb.

The case against the four volunteers ― Natalie Hoffman, Oona Holcomb, Madeline Huse and Zaachila Orozco-McCormick ― goes back to December 2017, a year when 32 sets of human remains were recovered from the Cabeza Prieta National Wildlife Refuge. The volunteers were charged with misdemeanors for entering the wildlife refuge without proper permits and leaving behind jugs of water and cans of beans, which the government called abandonment of property.

The volunteers’ defense hinged on the Religious Freedom Restoration Act of 1993 (RFRA). The law states that if a defendant can prove that the government is substantially burdening her “sincerely held religious beliefs,” then the government has to show that it’s using the “least restrictive” path to achieving its goals.

This ruling shows that religious freedom is not just for the Christian right, as the Trump administration would have us believe.Parker Deighan, spokesperson for No More Deaths

RFRA initially had broad bipartisan support. But more recently, the religious right has been using RFRA as a way to secure exemptions for conservative beliefs about abortion and LGBTQ rights. The evangelical Christian owners of the Hobby Lobby craft stores famously used RFRA to avoid paying for insurance coverage for contraception.

Under Trump, the Department of Justice has urged a narrow reading of RFRA claims made by people of faith who do not share the administration’s policy goals, according to Katherine Franke, faculty director of Columbia University’s Law, Rights, and Religion Project.

“The Trump Department of Justice has taken a biased approach to defending and enforcing religious liberty rights under RFRA, robustly protecting the rights of conservative Evangelical Christians while prosecuting people whose faith moves them to oppose the government’s policies,” Franke told HuffPost in an email.

Michael Bailey, the Trump-nominated U.S. attorney for Arizona, said his team has no issue with Márquez’s finding that strong religious beliefs motivated the defendants’ acts.

“We highly value religious freedom without regard to where on the spectrum one’s beliefs might fall,” Bailey told HuffPost in a statement.

A volunteer for the humanitarian aid organization No More Deaths delivers water along a trail used by undocumented immigrants in the desert on May 10, 2019 near Ajo, Arizona.

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No More Deaths is a Unitarian Universalist ministry. But all four volunteers are technically religiously unaffiliated, which means they are part of a growing group of Americans who decline to identify with any specific religious tradition.

During testimonies, the four described feeling a spiritual calling to volunteer, inspired by beliefs about the sanctity of human life. They also spoke about taking moments of silence in the refuge to reflect on the suffering of those crossing the desert.

Holcomb said that she had constructed a “personal altar” at her home that included a ring of water bottles she picked up in the desert.

“There is … for me, I will say, like a deep spiritual need and a calling to do work based on what I believe in the world,” Holcomb testified, according to the judge’s opinion.

In its response to the volunteers’ appeal, the government argued that their beliefs were not truly religious because they didn’t explain how they fit into a “particular system of religious or spiritual beliefs.” The government also asserted that the volunteers were “draping religious garb” over “secular philosophical concerns.”

In her opinion, Márquez said that the volunteers’ RFRA claims can’t be dismissed just because they described their beliefs in broad terms and don’t belong to an established religion. She pointed out that religious and political motivations overlapped in the Hobby Lobby case. ThatSupreme Court verdict has shown that government faces an “exceptionally demanding” obligation to be minimally restrictive while imposing on a person’s religious exercise, Márquez said.

Ultimately, the government had failed to demonstrate that prosecuting the volunteers was the least restrictive means of achieving a compelling governmental interest, the judge said.

Scott Warren, a volunteer for the humanitarian aid organization No More Deaths, walks into Organ Pipe Cactus National Monument to deliver food and water along remote desert trails used by undocumented immigrants on May 10, 2019, near Ajo, Arizona.

Márquez’s decision comes months after another No More Deaths volunteer, Scott Warren, was acquitted of a federal misdemeanor charge for leaving water jugs in the Cabeza Prieta National Wildlife Refuge for migrants. The judge in that case also acknowledged that Warren’s action was protected by his right to religious freedom. That was one of the first times progressive religious beliefs related to immigration have been protected in this way, the Law, Rights, and Religion Project told HuffPost in November.

Franke said there are other cases where progressive people of faith are making religious exemption claims. The Rev. Kaji Douša, a New York pastor and immigrant rights activist, claims the federal government violated her religious freedom when she was detained and placed on a watch list for ministering to asylum seekers at the U.S.-Mexico border.  The government has “trivialized” Douša’s RFRA claims and urged the court to dismiss them, Franke said.

In Philadelphia, the DOJ is trying to prevent a faith-based overdose prevention organization from opening a safe injection site, arguing that its “true motivation is socio-political or philosophical — not religious — and thus not protected by RFRA.”

Franke said that when Congress passed RFRA in 1993, the statute was meant to protect the religious liberty of people across a wide spectrum of beliefs, “not just some, and certainly not only those who hold religious beliefs that were shared with the current federal administration.”

Parker Deighan, a spokesperson for No More Deaths, told HuffPost that Márquez’s ruling on Monday reaffirms that “providing humanitarian aid is never a crime.”

“This ruling shows that religious freedom is not just for the Christian right, as the Trump administration would have us believe,” she said. “We hope that that Judge Marquez’s ruling signifies a shift towards religious freedom exemptions being used to protect the work of people and organizations fighting on the side of justice, such as migrant solidarity organizations and indigenous peoples fighting for protection of their sacred lands and traditions, rather than protection for discrimination and bigotry.”

 

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

So, here’s the deal.

The Trump (the least religious and most immoral President in U.S. History) regime uses a bogus “religious protection” rationale to cloak far-right programs of hate, intolerance, dehumanization, marginalization, and cruelty directed at people of color, the LGBTQ community, migrants, refugees, women, children, Muslims, Jews, and other vulnerable groups. According to the regime, “religious freedom” is limited to the “extremist religious right.”

Then, the regime attempts to misuse “the law” to punish those who actually “show Christ-like love in word and in deed.” To her credit, U.S. District Judge Rosemary Márquez “just said no” to this disingenuous nonsense.

The only way to stop the intellectual dishonesty, mockery of religious humanitarian principles, and misuse of our laws is to oust Trump and his enablers from office at every level. Otherwise, we can expect the persecution and cruelty to continue.

And don’t be surprised if the “J.R. Five” on the Supremes find a way to manipulate the system to enable the persecution of others to continue and grow worse. It’s what complicit “judges” do in the face of tyrants.

While the regime is using your tax dollars to pervert the law to persecute humanitarian workers, they are simultaneously violating our Constitution, our statutes, and our international obligations, with the connivence of the Supremes and Federal Appeals Courts who choose to look the other way rather than standing up for individuals’ rights against authoritarian overreach.

It’s time to stand up for our Constitutional rights, human rights, and human decency. Throw the corrupt and immoral GOP and their collaborators out of office at the next election, and bring in Government officials, legislators, and life-tenured judges who are willing and able to stand up for their oaths of office!

Due Process Forever!

PWS

02-06-20

 

 

 

HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

https://www.hrw.org/report/2020/02/05/deported-danger/united-states-deportation-policies-expose-salvadorans-death-and

February 5, 2020

Deported to Danger

United States Deportation Policies Expose Salvadorans to Death and Abuse

Summary

pastedGraphic.png

February 5, 2020

US: Deported Salvadorans Abused, Killed

Stop Deporting Salvadorans Who Would Face Risks to Their Safety, Lives

The US government has deported people to face abuse and even death in El Salvador. The US is not solely responsible—Salvadoran gangs who prey on deportees and Salvadoran authorities who harm deportees or who do little or nothing to protect them bear direct responsibility—but in many cases the US is putting Salvadorans in harm’s way in circumstances where it knows or should know that harm is likely.

Of the estimated 1.2 million Salvadorans living in the United States who are not US citizens, just under one-quarter are lawful permanent residents, with the remaining three-quarters lacking papers or holding a temporary or precarious legal status. While Salvadorans have asylum recognition rates as high as 75 percent in other Central American nations, and 36.5 percent in Mexico, the US recognized just 18.2 percent of Salvadorans as qualifying for asylum from 2014 to 2018. Between 2014-2018, the US and Mexico have deported about 213,000 Salvadorans (102,000 from Mexico and 111,000 from the United States).

No government, UN agency, or nongovernmental organization has systematically monitored what happens to deported persons once back in El Salvador. This report begins to fill that gap. It shows that, as asylum and immigration policies tighten in the United States and dire security problems continue in El Salvador, the US is repeatedly violating its obligations to protect Salvadorans from return to serious risk of harm.

Some deportees are killed following their return to El Salvador. In researching this report, we identified or investigated 138 cases of Salvadorans killed since 2013 after deportation from the US. We found these cases by combing through press accounts and court files, and by interviewing surviving family members, community members, and officials. There is no official tally, however, and our research suggests that the number of those killed is likely greater.

Though much harder to identify because they are almost never reported by the press or to authorities, we also identified or investigated over 70 instances in which deportees were subjected to sexual violence, torture, and other harm, usually at the hands of gangs, or who went missing following their return.

In many of these more than 200 cases, we found a clear link between the killing or harm to the deportee upon return and the reasons they had fled El Salvador in the first place. In other cases, we lacked sufficient evidence to establish such a link. Even the latter cases, however, show the risks to which Salvadorans can be exposed upon return and the importance of US authorities giving them a meaningful opportunity to explain why they need protection before they are deported.

The following three cases illustrate the range of harms:

  • In 2010, when he was 17, Javier B. fled gang recruitment and his particularly violent neighborhood for the United States, where his mother, Jennifer B., had already fled. Javier was denied asylum and was deported in approximately March 2017, when he was 23 years old. Jennifer said Javier was killed four months later while living with his grandmother: “That’s actually where they [the gang, MS-13 (or Mara Salvatrucha-13)] killed him.… It’s terrible. They got him from the house at 11:00 a.m. They saw his tattoos. I knew they’d kill him for his tattoos. That is exactly what happened.… The problem was with [the gang] MS [-13], not with the police.” (According to Human Rights Watch’s research, having tattoos may be a source of concern, even if the tattoo is not gang-related).

 

  • In 2013, cousins Walter T. and Gaspar T. also fled gang recruitment when they were 16 and 17 years old, respectively. They were denied asylum and deported by the United States to El Salvador in 2019. Gaspar explained that in April or May 2019 when he and Walter were sleeping at their respective homes in El Salvador, a police patrol arrived “and took me and Walter and three others from our homes, without a warrant and without a reason. They began beating us until we arrived at the police barracks. There, they held us for three days, claiming we’d be charged with illicit association (agrupaciones ilícitas). We were beaten [repeatedly] during those three days.”

 

  • In 2014, when she was 20, Angelina N. fled abuse at the hands of Jaime M., the father of her 4-year-old daughter, and of Mateo O., a male gang member who harassed her repeatedly. US authorities apprehended her at the border trying to enter the US and deported her that same year. Once back in El Salvador, she was at home in October 2014, when Mateo resumed pursuing and threatening her. Angelina recounted: “[He] came inside and forced me to have sex with him for the first time. He took out his gun.… I was so scared that I obeyed … when he left, I started crying. I didn’t say anything at the time or even file a complaint to the police. I thought it would be worse if I did because I thought someone from the police would likely tell [Mateo].… He told me he was going to kill my father and my daughter if I reported the [original and three subsequent] rapes, because I was ‘his woman.’ [He] hit me and told me that he wanted me all to himself.”

As in these three cases, some people deported from the United States back to El Salvador face the same abusers, often in the same neighborhoods, they originally fled: gang members, police officers, state security forces, and perpetrators of domestic violence. Others worked in law enforcement in El Salvador and now fear persecution by gangs or corrupt officials.

Deportees also include former long-term US residents, who with their families are singled out as easy and lucrative targets for extortion or abuse. Former long-term residents of the US who are deported may also readily run afoul of the many unspoken rules Salvadorans must follow in their daily lives in order to avoid being harmed.

Nearly 900,000 Salvadorans living in the US without papers or only a temporary status together with the thousands leaving El Salvador each month to seek safety in the US are increasingly at risk of deportation. The threat of deportation is on the rise due to various Trump administration policy changes affecting US immigration enforcement inside its borders and beyond, changes that exacerbated the many hurdles that already existed for individuals seeking protection and relief from deportation.

Increasingly, the United States is pursuing policies that shift responsibility for immigration enforcement to countries like Mexico in an effort to avoid any obligation for the safety and well-being of migrants and protection of asylum-seekers. As ever-more restrictive asylum and immigration policies take hold in the US, this situation—for Salvadorans, and for others—will only worsen. Throughout, US authorities are turning a blind eye to the abuse Salvadorans face upon return.

Some people from El Salvador living in the United States have had a temporary legal status known as “Temporary Protected Status” or “TPS,” which has allowed those present in the United States since February 2001 (around 195,000 people) to build their lives in the country with limited fear of deportation. Similarly, in 2012, the Obama administration provided some 26,000 Salvadorans with “Deferred Action for Childhood Arrivals” or “DACA” status, which afforded some who had arrived as children with a temporary legal status. The Trump administration had decided to end TPS in January 2020, but to comply with a court order extended work authorization to January 2021. It remains committed to ending DACA.

While challenges to both policies wend their way through the courts, people live in a precarious situation in which deportation may occur as soon as those court cases are resolved (at the time of writing the DACA issue was before the US Supreme Court; and the TPS work authorization extension to January 2021 could collapse if a federal appellate court decides to reverse an injunction on the earlier attempt to terminate TPS).

Salvadoran asylum seekers are also increasingly at risk of deportation and return. The Trump administration has pursued a series of policy initiatives aimed at making it harder for people fleeing their countries to seek asylum in the United States by separating children from their parents, limiting the number of people processed daily at official border crossings, prolonging administrative detention, imposing fees on the right to seek asylum, extending from 180 days to one year the bar on work authorization after filing an asylum claim, barring asylum for those who transited another country before entering the United States, requiring asylum seekers to await their hearings in Mexico, where many face dangers, and attempting to narrow asylum.

These changes aggravated pre-existing flaws in US implementation of its protection responsibilities and came as significant numbers of people sought protection outside of El Salvador. In the decade from 2009 to 2019, according to government data, Mexican and United States officials made at least 732,000 migration-related apprehensions of Salvadoran migrants crossing their territory (175,000 were made by Mexican authorities and just over 557,000 by US authorities).

According to the United Nations’ refugee agency, the number of Salvadorans expressing fear of being seriously harmed if returned to El Salvador has skyrocketed. Between 2012 and 2017, the number of Salvadoran annual asylum applicants in the US grew by nearly 1,000 percent, from about 5,600 to over 60,000. By 2018, Salvadorans had the largest number (101,000) of any nationality of pending asylum applications in the United States. At the same time, approximately 129,500 more Salvadorans had pending asylum applications in numerous other countries throughout the world. People are fleeing El Salvador in large numbers due to the violence and serious human rights abuses they face at home, including one of the highest murder rates in the world and very high rates of sexual violence and disappearance.

Despite clear prohibitions in international law on returning people to risk of persecution or torture, Salvadorans often cannot avoid deportation from the US. Unauthorized immigrants, those with temporary status, and asylum seekers all face long odds. They are subjected to deportation in a system that is harsh and punitive—plagued with court backlogs, lack of access to effective legal advice and assistance, prolonged and inhumane detention, and increasingly restrictive legal definitions of who merits protection. The US has enlisted Mexico—which has a protection system that its own human rights commission has called “broken”—to stop asylum seekers before they reach the US and host thousands returned to wait for their US proceedings to unfold. The result is that people who need protection may be returned to El Salvador and harmed, even killed.

Instead of deterring and deporting people, the US should focus on receiving those who cross its border with dignity and providing them a fair chance to explain why they need protection. Before deporting Salvadorans living in the United States, either with TPS or in some other immigration status, US authorities should take into account the extraordinary risks former long-term residents of the US may face if sent back to the country of their birth. The US should address due process failures in asylum adjudications and adopt a new legal and policy framework for protection that embraces the current global realities prompting people to flee their homes by providing “complementary protection” to anyone who faces real risk of serious harm.

As immediate and first steps, the United States government should adopt the following six recommendations to begin to address the problems identified in this report. Additional medium- and long-term legal and policy recommendations appear in the final section of this report.

  • The Trump administration should repeal the Migration Protection Protocols (MPP); the two Asylum Bans; and the Asylum Cooperation Agreements.
  • The Attorney General of the United States should reverse his decisions that restrict gender-based, gang-related, and family-based grounds for asylum.
  • Congress and the Executive Branch should ensure that US funding for Mexican migration enforcement activities does not erode the right to seek and receive asylum in Mexico.
  • Congress should immediately exercise its appropriation power by: 1) Refraining from providing additional funding to the Department of Homeland Security (DHS) for Immigration and Customs Enforcement (ICE) and US Customs and Border Protection (CBP) unless and until abusive policies and practices that separate families, employ unnecessary detention, violate due process rights, and violate the right to seek asylum are stopped; 2) Prohibiting the use of funds to implement the Migrant Protection Protocols, the “Asylum Bans,” or the Asylum Cooperation Agreements, or any subsequent revisions to those protocols and agreements that block access to the right to seek asylum in the United States.
  • Congress should exercise its oversight authority by requiring the Government Accountability Office and the Office of Inspector General to produce reports on the United States’ fulfilment of its asylum and protection responsibilities, including by collecting and releasing accurate data on the procedural experiences of asylum seekers (access to counsel, wait times, staff capacity to assess claims, humanitarian and protection resources available) and on harms experienced by people deported from the United States to their countries of origin.
  • Congress should enact, and the President should sign, legislation that would broadly protect individuals with Temporary Protected Status (including Salvadorans) and DACA recipients, such as the Dream and Promise Act of 2019, but without the overly broad restrictions based on juvenile conduct or information from flawed gang databases.

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History will neither forget nor forgive the many Article III Judges who have betrayed their oaths of office and abandoned humanity by allowing the Trump regime to run roughshod over our Constitution, the rule of law, and simple human decency.

Future generations must inject integrity, courage, and human decency into the process for appointing and confirming Article III Judges. Obviously, there is something essential missing in the legal scholarship, ethical training, and moral integrity of many of our current batch of  shallow “go along to get along” jurists!  Human lives matter!

Due Process Forever; Complicit Courts Never!

PWS

02-06-20

JAMELLE BOUIE @ NYT: SUPREMES’ TRAVEL BAN “TANK” ENCOURAGED & ENABLED TRUMP’S RACIST AGENDA — THE BOGUS EXTENSION OF THE TRAVEL BAN TO NIGERIA PROVES IT — “Which is to say that it does not matter that Nigeria isn’t much of a national security threat or that Nigerians are among the most successful immigrants to the United States, surpassing native-born Americans in income and educational attainment. What matters is that they’re black and African and, for Trump, at the bottom of a racial hierarchy.”

Jamelle Bouie
Jamelle Bouie
Columnist
NY Times

https://www.nytimes.com/2020/02/04/opinion/trump-travel-ban-nigeria.html

Bouie writes:

It’s happening a little bit out of public consciousness — swamped by impeachment, the coronavirus and the Democratic presidential race — but on Friday President Trump announced further restrictions on immigration and foreign entry to the United States. Citing security concerns, the administration has slammed the door on immigrants from the African nations of Sudan, Tanzania and Eritrea, as well as Myanmar in Southeast Asia and Kyrgyzstan in Central Asia. These countries, which have large Muslim populations, join seven others on the president’s ever-developing travel ban.

There’s one other country on the expanded list — Nigeria. Home to more than 200 million of Africa’s 1.2 billion people, Nigeria has the largest economy on the continent and has worked with the American military on joint operations. But given an “elevated risk and threat environment in the country,” administration officials say there’s a chance Nigeria could become a vector for terrorists who want to enter the United States. Nigeria’s government has long struggled with the Islamist group Boko Haram, which is responsible for multiple kidnappings and dozens of attacks that amount to mass slaughter.

But there’s little to no evidence that this group is a threat to Americans, nor is there any history of Nigerian terrorism on American soil. From 1975 to 2015, according to an analysis from the libertarian Cato Institute, just one Nigerian national was implicated in a terrorist attack against the United States. And, it should be said, the administration has not banned all entry from Nigeria — only applications for permanent residence. Tourists can still visit America, an odd loophole if the White House is actually worried about terrorism.

But I don’t think President Trump is actually worried about Nigerian terrorism.

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In 2017, The New York Times reported on a meeting between Trump and several members of his cabinet in which he raged against foreign visitors to the United States. Citing a memo from Stephen Miller, the president’s chief immigration hard-liner, Trump complained about the pending arrival of thousands of people from Muslim and predominantly African nations. They “all have AIDS,” Trump reportedly said, about immigrants from Haiti. As for Nigerians? Once they saw America, they would never “go back to their huts.”

All of this was separate from the president’s remarks on what he famously called “shithole countries” — those came the next year, when he found a fresh way to articulate his racist vision of immigration policy, where white Europeans are welcome and nonwhites are not.

Which is to say that it does not matter that Nigeria isn’t much of a national security threat or that Nigerians are among the most successful immigrants to the United States, surpassing native-born Americans in income and educational attainment. What matters is that they’re black and African and, for Trump, at the bottom of a racial hierarchy.

I’ve written before about the 1924 Immigration Act, also known as the Johnson-Reed Act, which codified a decade’s worth of nativist hysteria into law. It followed the Immigration Act of 1917, which imposed literacy tests on new immigrations and barred immigration from the Asia-Pacific region, and the Emergency Quota Act of 1921, which established the first per-country percentage limits on the number of immigrants to the United States. The 1924 act was the harshest. It was also the most far-reaching. Meant to reduce immigration from Southern and Eastern Europe, it also defined the American nation in explicitly racial terms.

The quota system established by Johnson-Reed, the historian Mae Ngai writes, “subtracted from the total United States population all blacks and mulattoes, eliding the difference between the ‘descendants of slave immigrants’ and the descendants of free Negroes and voluntary immigrants from Africa. It also discounted all Chinese, Japanese and South Asians as persons ‘ineligible to citizenship,’ including descendants of such people with American citizenship by native birth.”

In doing so, Ngai continues, the 1924 Immigration Act “excised all nonwhite, non-European peoples” from its “legal representation of the American nation,” setting the stage for the “racialization of immigrant groups around notions of whiteness, permanent foreignness and illegality.”

Trump is almost certainly ignorant of the Johnson-Reed Act (Stephen Miller, on the other hand, is not). But he’s channeling the impulse of that law — the attempt to cast the United States as a white nation, off-limits to those who don’t fit his preferred racial type. And with the Supreme Court’s blessing (granted to the revised version of the original travel ban), he’s doing just that: using his immigration policy to resurrect and reconstitute the exclusions of the early 20th century.

Although immigration policy deals with the external boundaries of the United States, the elevation of whiteness has internal consequences as well. Not because the president intends to distribute benefits and favors on the basis of race — although there are elements of that in his administration’s behavior — but because it sends a larger signal about who matters in this society. Every time Trump and other members of his administration make the decision to stratify and racialize, they are also making a statement about who receives a voice and who deserves respect.

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

America needs Supremes with the expertise, legal understanding, and moral courage to stand up for the legal, Constitutional, and human rights of all persons against the Trump/Miller/GOP White Nationalist agenda.

By enabling the rebirth of Jim Crow, the “GOP Justices” are destroying America to enable a vile anti-social agenda of a neo-fascist regime!

Human lives matter more than corporate profits!

Due Process Forever; White Nationalism Never!

PWS

O2-06-20

AS THE “J.R. FIVE @ HIS SUPREMES” HELP USHER IN A “NEW JIM CROW ERA OF UNACCOUNTABILITY,” AFRICAN-AMERICANS ARE ALL TOO FAMILIAR WITH “SHAM TRIALS” RESULTING IN “FIXED ACQUITTALS” OF THE GUILTY WHO HOLD POWER IN AMERICA! – We’re Back To The Days When Empowered “Arrogant White Guys” & Their Enablers Can Boast of Their Public Abuses of Our Legal System & Their Impunity!

David Love
David Love
Professor, Writer, Journalist

https://www.cnn.com/2020/02/04/opinions/impeachment-no-witness-no-evidence-american-history-love/index.html

David Love @ CNN:

 

An impeachment trial with no witnesses or evidence is very American

Opinion by David Love

Updated 9:53 AM ET, Tue February 4, 2020

 

Senator: This is a tragedy in every possible way 02:05

David A. Love is a writer, commentator and journalism and media studies professor based in Philadelphia. He contributes to a variety of outlets, including Atlanta Black Star, ecoWURD and Al Jazeera. Follow him on Twitter: @DavidALove. The opinions expressed in this commentary are his. View more opinion articles on CNN.

(CNN)The impeachment trial of President Donald Trump is a relative rarity in American political history, and yet aspects of it have the haunting familiarity of a sham trial in the Jim Crow South, where black people were routinely criminalized and murdered in the name of “justice.” Yes, there are certainly obvious differences between this political trial and the ones that many black Americans have faced, but the common thread remains: going through a trial that has already been decided before it even began.

David A. Love

There is little precedent for how to conduct only the third presidential impeachment trial ever to take place. However, with the Senate vote by the Republican majority to exclude witnesses — likely including former national security adviser John Bolton and indicted Rudy Giuliani associate Lev Parnas — the impeachment trial became nothing more than a kangaroo court with a predetermined outcome, a very American ritual of injustice masquerading as due process.

Comparing impeachment to Jim Crow jurisprudence, Rev. William J. Barber II of Repairers of the Breach and the Poor People’s Campaign summed it up when he tweeted: “In the old Jim Crow South, when racists harmed Black folks, the prosecutor & judge would conspire to have a fake trial & ensure the racists didn’t get convicted. We are seeing these same tactics play out in the impeachment trial under McConnell & it’s shameful.”

There is ample evidence the fix was in, that GOP senators had no intention of acting as impartial jurors. Senate Majority Leader Mitch McConnell, who said there was no chance the President would be removed from office, pledged to work closely and in “total coordination” with the White House on impeachment.

The Senate’s dangerous move 

Senate Judiciary Committee chair Lindsey Graham said, “I am trying to give a pretty clear signal I have made up my mind. I’m not trying to pretend to be a fair juror here.” And as some senators reportedly fell asleep and played with fidget spinners during the trial, Trump threatened to invoke executive privilege to block the testimony of former national security adviser John Bolton.

 

Boasting about hiding the impeachment evidence, Trump said “We have all the material. They don’t have the material.”

In a perfect example of jury nullification, Tennessee Republican Sen. Lamar Alexanderacknowledged Trump’s wrongdoing as “inappropriate,” yet supported acquittal and voted against witnesses. And Florida Sen. Marco Rubio wrote in a Medium post, “Just because actions meet a standard of impeachment does not mean it is in the best interest of the country to remove a President from office.”

Trump’s impeachment defense lawyers gave campaign contributions to Sen. McConnell and other Republican jurors in advance of the trial, according to the Center for Responsive Politics. 

Preventing first-hand witnesses from testifying and new documents from being entered into evidence is very typical of how trials were conducted in the Jim Crow South, when gerrymanderingvoter suppression and violence maintained white political rule, and all-white juries quickly convicted black defendants and exonerated white defendants without the need for evidence or deliberation.

For example, in 1955, Roy Bryant and J.W. Milam — two white men — went on trial in Mississippi for the brutal kidnapping, murder and mutilation of Emmett Till — a black 14-year old boy from Chicago.

It was obvious then, as now, that the trial was for show, almost more a justification for what had happened to Till. A white woman, the wife of one of the defendants, alleged Till had whistled at her (decades later she admitted to lying).

A number of witnesses were called, including two black men, one of whom identified the killers, and both of whom were threatened with death for testifying. However, the sheriff reportedly placed other black witnesses in jail to prevent them from testifying. An all-white-male jury — black people were effectively not allowed to vote or serve on juries — deliberated for only 67 minutes to deliver a not guilty verdict. Even the jurors knew they were participating in theater; “We wouldn’t have taken so long if we hadn’t stopped to drink pop,” one juror said.

Similarly, in 1931, nine black teens known as the Scottsboro boys were falsely accused of raping two white women in Alabama. While the boys were awaiting trial, a white mob threatened to lynch them. With the exception of the 13-year-old, they were swiftly sentenced to death by an all-white-male jury. Although none were executed, they collectively served 100 years in prison. Some of the boys were retried and reconvicted, and the Supreme Court twice overturned the guilty verdicts.

Echoes of Jim Crow jurisprudence continue to the present day, and even with attempts to reform the criminal justice system, injustices plague the poor and people of color, who are disproportionately incarcerated. When black and Latino teens, known as the Central Park Five, were falsely arrested, interrogated and coerced in the brutal rape and beating a white woman in New York, Trump placed a full-page ad in four newspapers calling for the death penalty. Even after the accused were exonerated by DNA evidence linking another person to the crime, as recently as last year, Trump has declined to apologize for his actions.

It is not surprising that Trump’s GOP would work overtime to conduct a fake impeachment trial with their own narrative and set of facts and no witnesses to avoid accountability. This, despite a CNN poll showing that 69% of Americans want to hear new witness testimony, and a Quinnipiac Poll in which 75% say witnesses should be allowed to testify. A recent Pew poll found a slight majority of Americans supporting Trump’s removal from office, with 63% saying he has definitely or probably broke the law, and 70% concluding he has done unethical things.

However, if the Senate does not reflect the will of most Americans, it is because the Senate is a fundamentally undemocratic institution that exercises minority rule. For example, on a strictly 53-47 party line vote, the Senate voted to reject a series of amendments to subpoena documents and witnesses (for the vote that decided whether to allow witnesses, two Republicans voted with Democrats in a vote that failed 49-51 to allow witnesses at Trump’s impeachment trial).

Those 53 Republican senators in the first vote, as author and reporter Ari Berman noted, represent 153 million Americans, as opposed to the 168 million people the Democratic senators represent. Minority rule is subverting democracy and the rule of law and undermining the popular will, resulting in unjust policies and decisions. This, as Republicans who control the Senate with a minority of popular support block the impeachment of a President who was elected with nearly 2.9 million fewer votes than his opponent. Jim Crow segregationists employed voter suppression, violence and coups to maintain power. Similarly, today’s GOP must rely on anti-democratic methods to cling to power in a changing America, and prop up a President who will most certainly stay in office through malfeasance, playing to xenophobic fear and threats of violence. 

Meanwhile, US Supreme Court Chief Justice John Roberts, who has assumed the role of a potted plant throughout most the proceeding, helped create this mess by playing an active role in the erosion of democracy and the legitimacy of the political system. Under Roberts’ leadership, the high court has sanctioned gerrymandering, eviscerated voting rights, and allowed for unlimited money in our elections, including potentially from foreign sources.

If the Republicans hope for an end run around democracy with a kangaroo court, this is nothing new. Following in the footsteps of those who played a part in sham trials in the Jim Crow South, the Trump party cares little about justice, and everything about breaking the rules to maintain power in perpetuity. Unfortunately, sham trials are as American as apple pie.

 

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

By aligning himself with the totally corrupt, lawless, and immoral Trump and his various scofflaw schemes, Roberts seems intent on following in the footsteps of the now reviled Chief Justice Roger Taney, author of the Dred Scott decision.

Obviously, given a chance at a Second Term, a Senate of toadies, and a complicit, willfully tone-deaf Supremes, Trump has every intention of “Dred Scottifying” immigrants, people of color, the LGBTQ community, political opponents, and other large segments of America.

“Corruption, impunity,” those are words that those of us who actually decided immigration cases saw often in country background information on third word dictatorships and autocracies. Now, thanks to Trump, his Senate toadies, and Article IIIs “go alongs,” those are also words that can be used to describe the American justice system.

 

 

PWS

02-05-20

 

10TH CIR. RULES THAT PROVISION OF INA BARRING JUDICIAL REVIEW OF EXPEDITED REMOVAL IN CRIMINAL CASES IS UNCONSTITUTIONAL — U.S. v. Gonzalez-Fierro

https://cases.justia.com/federal/appellate-courts/ca10/18-2168/18-2168-2020-02-04.pdf?ts=1580846433

 

 

U.S. v. Gonzalez-Fierro, 10th Cir., 03-04-20, published

 

PANELTYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.

OPINION BY: Judge Ebel

 

CONCURRING OPINION: Chief Judge Tymkovich

 

KEY QUOTE FROM MAJORITY:

 

In this direct criminal appeal, Defendant Rodolfo Gonzalez-Fierro, a Mexican citizen, challenges his conviction for unlawfully re-entering the United States after a prior removal, in violation of 8 U.S.C. § 1326(a). That conviction was based in part on Gonzalez-Fierro’s prior expedited removal from the United States in 2009. Due process requires that, before the United States can use a defendant’s prior removal to prove a § 1326(a) charge, “there must be some meaningful review” of the prior administrative removal proceeding. United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987). In light of that, Congress has provided a mechanism, set forth in 8 U.S.C. § 1326(d), for a defendant charged with a § 1326(a) offense to challenge the fundamental fairness of his prior unreviewed removal. But, pursuant to 8 U.S.C.
§ 1225(b)(1)(D), that § 1326(d) mechanism applies only to prior formal removal orders, and not to prior expedited removal orders like Gonzalez-Fierro’s. Expedited removals apply to undocumented aliens apprehended at or near the border soon after unlawfully entering the United States. Different from formal removals, expedited removals are streamlined—generally there is no hearing, no administrative appeal, and no judicial review before an expedited removal order is executed. Applying the Supreme Court’s reasoning in Mendoza-Lopez, we conclude that § 1225(b)(1)(D) is unconstitutional because it deprives a defendant like Gonzalez-Fierro of due process; that is, § 1225(b)(1)(D) allows the Government to use an unreviewed expedited removal order to convict a defendant of the § 1326(a) offense of unlawfully re- entering the United States after a prior removal.

Unconstrained by § 1225(b)(1)(D), we review here Gonzalez-Fierro’s 2009 expedited removal order. Doing so, we conclude that he has failed to establish that that removal was fundamentally unfair. On that basis, having jurisdiction under 28 U.S.C. § 1291, we AFFIRM Gonzalez-Fierro’s § 1326(a) conviction.

 

KEY QUOTE FROM CHIEF JUDGE TYMKOVICH’S CONCURRING OPINION:

 

I agree with the majority’s determination that Mr. Gonzalez-Fierro’s 2009 expedited-removal order was not fundamentally unfair under 8 U.S.C.
§ 1326(d)(3). Nevertheless, I do not believe we possess jurisdiction to reach that question.

I would AFFIRM the judgment of the district court that it lacked jurisdiction to consider the merits of the prior removal order.

 

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

I think there are lots of Constitutional problems with “expedited removal.” I’m not sure, however, that this decision will have much immediate impact because:

 

  • It’s only one Circuit and a “low immigration volume Circuit” at that;
  • It’s a “split opinion;”
  • It’s in the criminal, rather than the civil removal, context;
  • The court does its own judicial review of the expedited removal order and finds it to be fundamentally fair in this particular case.

On the other hand, and notwithstanding Chief Judge Tymkovich’s concurring opinion, the facial lack of Due Process in the essentially un-reviewable “expedited removal” process seems quite evident.

So, hopefully advocates can eventually leverage this into an overall determination that there must be meaningful judicial review of expedited removal.  This is particularly important because the Administration’s attempt to expand expedited removal to its maximum statutory scope is currently “on hold” pending further judicial review.

 

We’ll just have to wait and see how this plays out.

 

 

PWS

 

02-05-20

 

 

 

 

 

 

NO EXPERTISE NECESSARY! – At The “New EOIR,” Immigration Judges No Longer Need to Demonstrate Immigration Experience – Just a Willingness To Send Migrants to Potential Death, Danger, or Misery Without Due Process or Fundamental Fairness – When Your Job Is To Impose Arbitrary “Death Sentences,” Maybe It’s Easier If You Don’t Understand What You’re Really Doing!

Nolan Rappaport
Nolan Rappaport
Contributor, The Hill

 

https://thehill.com/opinion/immigration/481152-us-hiring-immigration-judges-who-dont-have-any-immigration-law-experience

 

Nolan Rappaport writes in The Hill:

 

. . . .

 

Hiring judges without immigration law experience

Congresswoman Sheila Jackson Lee (D-Texas) pointed out that the Executive Office for Immigration Review (EOIR) has been hiring as judges lawyers who do not have any immigration law experience.

In fact, the experience requirement in immigration judge vacancy announcements doesn’t even mention immigration law experience:

Experience: Applicants must have a full seven (7) years of post-bar experience as a licensed attorney preparing for, participating in, and/or appealing formal hearings or trials … Qualifying litigation experience involves cases in which a complaint was filed with a court, or a charging document … was issued by a court, a grand jury, or appropriate military authority…”

EOIR recently swore in 28 new immigration judges, and 11 of them had no immigration law experience.

None.

That’s a problem for justice.

Due process isn’t possible when judges do not fully understand the law — and it takes a long time to learn immigration law. According to the American Bar Association, “To say that immigration law is vast and complex is an understatement.” Rutgers University law professor Elizabeth Hull says that our immigration laws are “second only to the Internal Revenue Code in complexity.”

The concern over judges with no immigration law experience is more than just idealism or theory — the inexperience can impact people’s lives in major ways.

For instance, an otherwise deportable alien may be eligible for lawful permanent resident status if he has been in the United States long enough. 8 USC §1259 permits certain deportable aliens to register for permanent residence if they entered the United States prior to Jan. 1, 1972; have resided in the United States continuously since such entry; have good moral character; and are not ineligible for citizenship.

How many inexperienced immigration judges would know that?

This influx of inexperience may explain why asylum decisions vary so widely from judge-to-judge.

What’s more, these judges might not be able to meet the eligibility standards for an Article 1 court if subject matter expertise is required.

. . . .

 

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

You can read Nolan’s full article, from which this is excerpted, at the above link. I agree wholeheartedly with this part of Nolan’s conclusion: “EOIR should not be trying to deal with this backlog by hiring more judges if it can’t find judges with adequate immigration law experience.”

 

 

Here’s an actual anecdote that I received recently from a Courtside reader:

 

I had a merits hearing . . . with a new IJ with no immigration background at all.  It happened to be an old adjustment which the ICE trial attorney had reviewed and agreed in advance to a grant, pending a few questions.  So the ICE TA explained this to the IJ, and I asked the IJ if [he/she] understood the terms involved.  And it turned out that the IJ didn’t know what an I-140 is and didn’t know what 245(i) is.  [He/She] didn’t say a word; we ran the hearing.  The ICE attorney actually had to fill out the IJ’s order for [him/her] to sign; [he/she] had no idea what to write or what boxes to check.

 

What if it had been a contested hearing?

 

 

Yes, indeed, “what if this had been a contested hearing?” I assume that what passes for EOIR/DOJ “new judge training” these days just tells new judges that “when in doubt, kick ‘em out.” Just check the “denied” and “ordered removed” boxes on the form orders. At least this one had a “happy ending.” Many do not!

 

I’ve heard other anecdotes about newer Immigration Judges totally ignorant about asylum law and afraid to admit it who cited Matter of A-B- as basis for “blanket summary denial” of all gender-based asylum claims from Central America. Other newer judges reportedly are largely unaware of the burden-shifting “regulatory presumption of future persecution” arising out of past persecution.

 

Others apparently don’t understand the interplay and differing requirements and consequences among asylum, withholding of removal under the Act, CAT withholding, and CAT deferral. “Mixed motive,” a key life or death concept in asylum cases — you’d be lucky to find a handful of Immigration Judges these days who truly understand how it applies. That’s particularly true because the BIA and the Attorney General have recently bent the concept and many of the Circuit precedents interpreting it intentionally out of shape to favor DHS enforcement and discriminate against bona fide asylum applicants.

The generous interpretation of the “well founded fear” standard required by the Supremes in Cardoza-Fonseca and embodied in the BIA’s Matter of Mogharrabi is widely ignored, even mocked in some of today’s enforcement driven, overtly anti-asylum Immigration Courts.

To be fair, I’ve also heard praise from advocates for some of the newer Immigration Judges who seemed eager and willing to be “educated” by both counsel, weren’t afraid to admit their gaps in knowledge and request amplification, and seemed willing carefully to weigh and deliberate all the facts and law to reach a just and well-explained decision; this contrasts with “summary preconceived denial” which is a common complaint among advocates that also includes some judges who have been on the bench for years.

The larger problem here is that too many of the Circuits Courts of Appeals seem to have gone “belly up” on their duty to carefully review what is happening in the Immigration Courts and to insist on the basics of fundamental fairness, due process, and fair and impartial decision-making.

 

It’s pretty simple: At neither the trial nor appellate levels do today’s Immigration Courts operating under EOIR and DOJ control qualify as “expert tribunals.” It is legally erroneous for Article III Courts to continue to “defer” to decision makers who lack fairness, impartiality, and subject matter expertise.

 

With human lives, the rule of law, and America’s future at stake here, it’s past time for the Article III’s to stop pretending that is “business as usual” in the warped and distorted “world of immigration under the Trump regime.”

Would any Article III Judge subject his or her life to the circus now ongoing at EOIR. Of course not!  Then it’s both legally wrong and morally corrupt for Article IIIs to continue to subject vulnerable migrants to this type of charade and perversion of justice!

 

Due Process Forever; Complicit Courts Never!

 

PWS

 

02-05-20

 

 

T.C. WILLIAMS HIGH SCHOOL STUDENT TEAM MAKES IMMIGRATION VIDEO FOR C-SPAN STUDENTCAM 2020 COMPETITION!

T.C. WILLIAMS HIGH SCHOOL STUDENT TEAM MAKES IMMIGRATION VIDEO FOR C SPAN STUDENTCAM 2020 COMPETITION!

T.C. Williams HS Logo
T.C. Williams HS Logo
T.C. Williams Total Logo
T.C. Williams Titan Logo

Recently, I had the honor of working with a team of three talented T.C. Williams High School students and Mary Giovagnoli, Senior Counsel for Legal Strategy at , on a video interview about immigration issues in the upcoming 2020 election. Here is the result produced by the amazing student team of Amal Sharif, Ben Janusz, and Alex Conkey:

https://www.youtube.com/watch?v=Ja10WHkEDGU&t=4s 

This video is an entry in the C-Span StudentCAM 2020 Competition.

T.C. Williams is the public high school for ‘Alexandria, Virginia, where Cathy and I have lived since 1973. All three of our adult children, Wick, Will, and Anna, attended the Alexandria City Public Schools and are proud graduates of T.C. Williams High School (“Remember the Titans”).

GO T.C.!

PWS

02-05-20

SPORTS: WILLIE WOOD (1936-2020): Packer Great, NFL Hall of Famer, DC Native Helped Break The “Color Barrier!”

Willie Wood
Willie Wood
Packer Hall Of Farmer
1936 – 2020

SPORTS: WILLIE WOOD (1936-2020): Packer Great, NFL Hall of Famer, DC Native Helped Break The “Color Barrier!”

https://www.packersnews.com/story/sports/nfl/packers/2020/02/03/green-bay-packers-hall-fame-safety-willie-wood-dies-83/1650921002/

Michael Cohen in the Green Bay Press Gazette:

Willie Wood was a fiercely athletic safety for the Green Bay Packers whose interception in Super Bowl I remains a cherished highlight for the organization.

Wood died Monday at an assisted living facility in his hometown of Washington, D.C., the Packers announced. He was 83.

Wood had been suffering from advanced dementia for years.

“The Green Bay Packers Family lost a legend today with the passing of Willie Wood,” Packers President/CEO Mark Murphy said. “Willie’s success story, rising from an undrafted rookie free agent to the Pro Football Hall of Fame, is an inspiration to generations of football fans. While his health challenges kept him from returning to Lambeau Field in recent years, his alumni weekend visits were cherished by both Willie and our fans. We extend our deepest condolences to Willie’s family and friends.”

The dynamic Wood was regarded as one of the best defensive backs in NFL history, a player whose vicious hits and plentiful interceptions dominated an entire decade in the 1960s. He played 12 seasons from 1960-71 — all with the Packers — and ranks second in franchise history with 48 career interceptions (trailing only Bobby Dillon’s 52). Wood is the Packers’ career leader in punt-return yardage with 1,391.

Wood was inducted into the Pro Football Hall of Fame in 1989.

“The game has lost a true legend with the passing of Willie Wood,” Hall of Fame President & CEO David Baker said. “He had an unbelievable football career which helped transform Green Bay, Wisconsin into Titletown U.S.A. Willie was a rare player who always fought to be a great teammate and achieve success. He entered the league as an undrafted free agent and became one of the greatest to ever play the game. The Hall of Fame will forever keep his legacy alive to serve as inspiration to future generations.”

Wood’s streak of 166 consecutive games played ranks fourth behind quarterback Brett Favre (255), offensive lineman Forrest Gregg (167) and long snapper Rob Davis (167), a testament to the durability and attitude Wood hoped would define his game.

“Determination probably was my trademark,” Wood said. “I was talented but so were a lot of people. I’d like people to tell you I was the toughest guy they ever played against.”

pastedGraphic.png

Green Bay Packers safety Willie Wood almost intercepts a long pass by the Giants in the fourth quarter of the Bishop’s Charity game at Green Bay in 1969. Woods fell backward as he kept the ball away from Aaron Thomas on a pass from quarterback Y. A. Tittle. (Photo: Milwaukee Journal Sentinel files)

Wood, who began his career as a quarterback, followed a circuitous route to Green Bay. A year of junior college in California gave way to a three-year career at Southern California with modest numbers and little national buzz. Wood went undrafted as an undersized black quarterback and relied instead on Bill Butler, his coach at the Washington, D.C., Boys Club, to write letters to pro teams campaigning on his behalf.

“Mr. Lombardi, if you could see this kid unshackled you would really agree with me,” Butler said in a letter to coach Vince Lombardi in December of 1959. “If you hadn’t contemplated giving him a chance, just try him one time and I’ll guarantee you’ll be glad you did.”

Wood switched to defense and went through training camp with the Packers in 1960. He made the team as a rookie free agent and contributed immediately as a punt returner on special teams.

RELATED: Packers legendary quarterback Bart Starr dies at 85

RELATED: Hall of Fame Packers tackle, former coach Forrerst Gregg dies

RELATED: Packers Hall of Fame fullback Jim Taylor dies at 83

One year later, however, the legend of Wood was born. He replaced injured starter Jess Whittenton at safety late in the 1961 season and entrenched himself as one of the premier defensive backs in the league.

Wood made the Pro Bowl eight times in the next 11 seasons and led the Packers in interceptions five times. He earned AP All-Pro honors six times and was a unanimous selection in 1965 and 1966.

Wood retired after the 1971 season and took a job as an assistant coach for the San Diego Chargers. He went on to become the first black head coach in professional football by taking over the Philadelphia Bell of the World Football League in 1975. Five years later he became the first black head coach of the Canadian Football League as well.

“The thing is, my dad never wanted to leave football,” Andre Wood, a son of Willie’s, told The New York Times in an article published in 2016. “He needed a stable way to make a living. But I know he would have stayed in the NFL coaching track had he been asked to. But he wasn’t.”

DOUGHERTY: Willie Wood took safety road to Hall of Fame

Perhaps his finest moment came in Super Bowl I when the Packers played the Kansas City Chiefs. Wood undercut an ugly throw by Chiefs quarterback Len Dawson for an easy interception that, after a 50-yard return, set up a touchdown in what finished as a blowout win for the Packers.

“My dad was so proud of his Super Bowl moment, but I used to tease him about being tackled from behind on the play,” Willie Wood Jr. told the Times.

“And his response would be, ‘Yes, but I was there.’”

Wood, however, had no recollection of that play and hardly remembered his playing career at all. As detailed by the Times, the aging Wood spent the last decade in an assisted living facility in Washington. While he originally entered for chronic pain in his neck, hip and knee, Wood eventually developed dementia that sapped his memory and limited his cognitive functions.

He sometimes went days without speaking, according to the article.

“It’s difficult to not be able to talk to him,” Willie Wood Jr. told the Times. “He was a great father. As good an athlete as he was, he was 10 times that as a father.”

Wood often wore a Packers hat during his time at the assisted living facility, even though he could not describe the exact connection between himself and the organization. But Wood knew he loved football, and when a reporter from the Times asked if he would play the sport again if given the chance, Wood’s answer was simple.

“Without waiting even a beat,” the article said, “Wood firmly nodded.”

“You liked it that much?”

“He nodded again.”

Wood is survived by his two sons and a daughter. Funeral arrangements are pending.

The Willie Wood file: Facts and figures

Born: Dec. 23, 1936, in Washington, D.C.

School: Southern California. Wood spent one year at Coalinga Junior College in the San Joaquin Valley before transferring to USC. He played quarterback all three years for the Trojans with modest success, finishing his collegiate career with 772 passing yards, seven passing touchdowns and eight interceptions. Wood had 330 rushing yards and two rushing touchdowns as well. He made the Packers’ roster as an undrafted free agent in 1960.

Hall of Fame: Packers Hall of Fame, Class of 1977; Pro Football Hall of Fame, Class of 1989.

Packers playing career: An undrafted rookie, Wood battled 24 defensive backs for a spot on the roster. He played mostly on special teams as a punt returner during his first season. Filled in for the injured Jess Whittenton in 1961 and made five interceptions in the second half of the year. Also led the league in punt return average (16.2 yards) and returned two punts for touchdowns. Wood took off from there and had a career-high nine interceptions in 1962 to earn the first of eight Pro Bowl selections (1962, 1964-70). He earned AP All-Pro honors six times and was a unanimous selection twice, in 1965 and 1966. Best known for his vicious hitting and iconic interception in Super Bowl I that set up a touchdown in a game the Packers won, 35-10. Played 166 consecutive games over the course of his career. Finished with 48 interceptions, two defensive touchdowns and two punt return touchdowns. Tackling statistics were unavailable during Wood’s era. He wore jersey number 24.

Post playing career: Wood retired after the 1971 season and took an assistant coaching position with the San Diego Chargers. Four years later he became the first black head coach in professional football when he ran the Philadelphia Bell of the World Football League. In 1980, Wood became the first black head coach in the Canadian Football League as well. He was in charge of the Toronto Argonauts for two seasons. Wood spent the last decade in an assisted living facility in his hometown of Washington. He suffered from dementia and, according to an article in The New York Times, remembered almost nothing of his football career. He sometimes went days without speaking.

Quote: “Determination probably was my trademark. I was talented but so were a lot of people. I’d like people to tell you I was the toughest guy they ever played against.” — Willie Wood

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I was fortunate enough to see Willie Wood play in person several times when the Packers played some games at the old Milwaukee Country Stadium. Although small by NFL standards even for those days, he was known for his athleticism, toughness, and jumping ability. He could touch the crossbar with his elbow from a standing start!

PWS

02-04-20

THE LATEST FROM HON. JEFFREY S. CHASE:  Rethinking Chevron In The Era Of Weaponized Immigration Courts Acting As Adjuncts Of DHS Enforcement, & Further Adventures Of The Round Table!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
jeffreyschase.com
In the present climate, immigration lawyers must continue to present judges with creative, intelligent arguments; to present the public with proof of what is wrong with the current system; and to present those in power to change what is wrong with solutions.

I’ve added posts that address each these points. First, I discuss some recent articles in which scholars raise creative legal arguments as to the limits of Chevron deference in appeals to the federal courts. I have also posted a statement of our Round Table of Former Immigration Judges to the House Judiciary Committee, Immigration and Citizenship subcommittee that was made part of the record of its hearing last Wednesday on solutions to the present crisis in the immigration courts.

I have also posted the group statement of our Round Table on the one-year anniversary of the MPP, or “Remain in Mexico” policy that was drafted by former Immigration Judge Ilyce Shugall, who has volunteered her time to travel to Texas to observe MPP hearings that is meant to raise awareness of the need to end this awful program.

SUN, FEB 02

Rethinking Chevron?

The powers of the Attorney General and the Board of Immigration Appeals to influence law by issuing binding precedent decisions is greatly enhanced by what is known as Chevron deference.  The principl

Read More
TUE, JAN 28

Statement to the House Judiciary Committee on Immigration Court Reform

On Wednesday, January 29 at 9:30 am, the House Judiciary Committee, Immigration and Citizenship Subcommittee is holding a hearing entitled “Courts in Crisis:  The State of Judicial Independence and

Read More
TUE, JAN 28

Statement on the One Year Anniversary of the MPP Program

January 28, 2020

The Round Table of Former Immigration Judges is comprised of former immigration judges who are dedicated to due process in the immigration system.  As former immigration judges, we

Read More
jeffreyschase.com, 500 4th Ave., Brooklyn, NY, USA

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Another article that ties in well with a critical re-examination of Chevron in immigration cases is Tess Hellgren’s recent wonderful short article: “Faced with the Trump Administration’s weaponization of the immigration courts against asylum-seeking individuals, the role of the federal courts is more important than ever.” I recently republished it here: https://immigrationcourtside.com/2020/02/01/tess-hellgren-innovation-law-lab-when-it-comes-to-the-captive-bia-weaponized-immigration-courts-the-article-iiis-need-to-put-away-the-rubber-stamp-restore-integrity-to-the-law-fac/

As we see the results of the regime’s Article III-enabled and encouraged nativist, racist policies like an expanded “Travel Ban” that now includes a large portion of Africa, new non-legislative restrictions on legal immigration, unmitigated expansion of the deadly “New American Gulag,” intentional mistreatment of children, and the continuing abrogation of both Due Process and our binding obligations to protect refugees at our Southern Border and elsewhere, Tess’s last sentence is particularly prophetic:

As the Attorney General and other executive officials attempt to expand their authority to define the terms of immigration adjudication, federal courts should heed the Seventh Circuit’s decision – and remember the foundational legal principle that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”

So far, the Supremes and the Circuits have largely “vacated the province and shirked their duties” to the nation and our laws by shrinking and cowering in the face of the regime’s continuing lawlessness, bullying, bias, and tyranny. Indeed, the Supremes have shown a disturbing favoritism to unjustified requests by Trump’s Solicitor General to short-circuit the litigation system and the rules that bind all others. 

Not since the Eisenhower Administration’s “Operation Wetback” (obviously one of the regime’s “models” of lawless disregard for human and legal rights, not to mention basic morality) has our national Government shown such overt racism and contempt for migrants of color. Yet, rather than standing tall and delivering a united, powerful, intellectually courageous defense of our Constitution, the “GOP Gang of Five Supremes” backed the dehumanization and demonization of migrants on racial and religious grounds for transparent and invidious political reasons in the “Travel Ban case.” They basically invited and then approved a demonstrably false and “bad faith” national defense “pretext” which the Administration has “jumped on” to justify other attacks on the rule of law.  

Now the “ban” has remarkably, but predictably, been extended to a large part of Africa, including its largest economy, Nigeria. Hardly a whimper as Trump disembowels both Constitutional norms and human decency. What’s next on the agenda, Supremes, a bogus Executive ban on all non-White, non-Christian immigration? Who’d be surprised at this point?

Of course, with “constitutional de-personification” well under way with Article III approval, the next targets will be US citizens of color and others who “dare to differ” like the LGBTQ community, women, political opponents, journalists, lawyers, and, finally, judges themselves once their usefulness to Trump and his authoritarian regime is exhausted. The all-powerful, unrestrained, “unitary Executive” has no need of legislature, judiciary, or the people except to “ratify” their authoritarian abuses.

The failure to defend and reinforce the courageous legal community challenging the regime’s authoritarian overreach and the pathetically weak defense of the integrity of judicial colleagues who have tried to hold the regime accountable by Roberts has done nothing  but confirm and reinforce Trump’s pre-existing  belief that courts are “his” tools and judges “his toadies.”

America deserves better from its life-tenured judiciary! What’s the purpose of a supposedly independent life-tenured judiciary that sides with powerful, dishonest, lawless, bullies over the rights of individuals and is unwilling to stand up for the rights and human dignity of the most vulnerable among us?

PWS

02-04-20

COMING ATTRACTIONS: ST MARY’S LAW REVIEW ON RACE & SOCIAL JUSTICE, & USTA INSTITUTE ON TEXAN CULTURES PRESENT THE 2020 IMMIGRATION SYMPOSIUM ON FEB. 28, 2020 IN SAN ANTONIO — Featuring Khizr Khan, Keynote Speaker; Ira J. Kurzbazn, Esquire, Guest Speaker; & A Host of Experts, Including Me!

My speech is entitled: “Due Process Doesn’t Live Here Any More: Weaponized Immigration Courts Are America’s Star Chambers”

 

Here is the complete program and registration information:

Symposium_Poster

 

Hope to see you in San Antonio.

Due Process Forever!

PWS

02-03-20

COURTSIDE SPORTS: HAIL TO THE CHIEFS:  BEHIND MAHOMES, KC STORMS BACK TO BEAT 9ERS 31-20 FOR FIRST SUPER BOWL WIN SINCE 1970 — Coach Andy Reid Finally Wins The “Big One!”

Patrick Mahomes
Patrick Mahomes
Quarterback
Kansas City Chiefs
Super Bowl 54 MVP
Andy Reid
Andy Reid
Head Coach
Kansas City Chiefs

By Paul Wickham Schmidt

Exclusive for Courtside Sports

Feb. 3, 2020.  Largely as Courtside had predicted (Chiefs by 13, actual 11), Kansas City Chiefs’ all-world quarterback Patrick Mahomes eventually proved too much for even the San Francisco 49ers talented defense that had absolutely stuffed Aaron Rodgers and the Pack in the NFC Championship Game. Down 10 points midway through the fourth quarter, Mahomes led his team to three straight touchdowns in less than seven minutes to win going away.

Until then, it actually wasn’t a “vintage Mahomes” performance. The nimble star slinger threw consecutive picks and missed a number of wide open receivers to kill promising drives. 

Indeed, with the ball, a double-digit lead, and under twelve minutes to go in the game, SF quarterback Jimmy Garoppolo and his offense were about one time-consuming, bone-crushing drive away from putting this one on ice as they had against the Packers. But, the KC run defense bore no resemblance to the hapless Pack defenders. The 9ers came up woefully short on each of their four remaining possessions, while Mahomes and the Chiefs scored three straight TDs before it was “kneel-down time.”

The win, Chiefs’ Coach Andy Ried’s 222nd, ended his dubious distinction of being the “winningest NFL Coach without a Vince Lombardi Trophy” on his resume. It was also a big moment for several generations of Chiefs’ fans whose home town heroes last such triumph was in 1970. 

Also fulfilling Courtside’s prediction: The next run of State Farm commercials will have off-field buddies Aaron Rodgers and Mahomes both sporting rings, and both with Super Bowl MVP trophies. As a die-hard Pack fan, here’s hoping that they get to square off against each other in next year’s Super Bowl. And, may the best pitchman win!

And, b/t/w Trumpy, the Chiefs are actually from Missouri, not Kansas. It’s hard to apply “alternative facts” to geographic realities.

PWS

03-03-20