"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
U.S. judge rules ICE unlawfully jails unaccompanied migrant children once they turn 18
BY SPENCER S. HSU
JULY 2 AT 5:18 PM
A federal judge ruled Thursday that U.S. Immigration and Customs Enforcement has unlawfully transferred thousands of unaccompanied children who turned 18 to adult detention facilities without considering alternatives, in violation of a 2013 law.
U.S. District Judge Rudolph Contreras of Washington, D.C., said he will order changes “in the near future” after a bench trial in a class-action lawsuit brought in March 2018 on behalf of immigrant teenagers by the National Immigrant Justice Center (NIJC).
Contreras found that ICE does not train field offices to search for or select less-restrictive options than contractor or ICE prisons and jails for minors aging out of refugee resettlement facilities, and in fact guides aofficers to act contrary to a law protecting trafficking victims.
As a result, the judge ruled, many officers choose not to review minors’ files, contact group homes or shelters, or respond to their attorneys suggesting alternatives. Many of ICE’s largest field offices “nearly automatically” send minors to adult jails, even when in extreme cases their parents in the United States or other sponsors would take them, the judge wrote.
“These are not the decisionmaking processes that Congress required” in the Trafficking Victims Protection Reauthorization Act or federal rulemaking law, Contreras wrote in a 180-page opinion. “By failing to make decisions in the way Congress dictated, and based on the factors Congress identified as relevant, ICE fails to fulfill its obligations under the statute.”
The Justice Department did not have a comment, spokeswoman Alexa Vance said.
In a statement by plaintiffs, pro bono lead counsel Steve Patton of Kirkland & Ellis said: “This is a great victory for thousands of current and future unaccompanied immigrant children who turned 18 in government custody. We could not be happier with the court’s thorough and well-reasoned decision.”
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Read the rest of Spencer’s article at the link.
While a majority of the Supremes seem committed to willfully furthering a program of racist-motivated human rights violations by the Trump kakistocracy, lower Federal Courts appear to be disassociating themselves from the Illegal activities and racist agenda of a lawless regime.
July 2, 2020
EOIR Announces New Chief Immigration Judge
FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Tracy Short as the Chief Immigration Judge of EOIR’s Office of the Chief Immigration Judge.
Biographical information follows:
Tracy Short, Chief Immigration Judge
Attorney General William Barr appointed Tracy Short as the Chief Immigration Judge in June 2020. Chief Judge Short received a Bachelor of Arts in 1990 from Texas Christian University and a Juris Doctor in 1995 from the Louisiana State University Law Center. Chief Judge Short began his legal career in 1995 as a judicial law clerk for Judge James M. Dozier, Jr., of the Third Judicial District Court of Louisiana. From 1997 to 1998, he served as a public defender, representing indigent criminal defendants in Louisiana state courts, while also practicing civil law. From 1998 to 1999, Chief Judge Short was an assistant attorney general for the Louisiana Department of Justice where he represented the State of Louisiana in civil litigation. From 1999 to 2000, he also served as a judicial law clerk for Justice Chet D. Traylor of the Louisiana Supreme Court. From 2000 to 2001, Chief Judge Short was a judicial law clerk for Judge Robert B. Maloney of the U.S. District Court for the Northern District of Texas. From 2001 to 2003, Chief Judge Short litigated removal cases on behalf of the Department of Justice as trial attorney with the former Immigration and Naturalization Service in Dallas. From 2003 to 2005, Chief Judge Short served as Assistant Chief Counsel in the Dallas office of U.S. Immigration and Customs Enforcement’s (ICE) Office of the Principal Legal Advisor (OPLA). In 2005, he was appointed as a Special Assistant U.S. Attorney (SAUSA) in the U.S. Attorney’s Office (USAO) for the Northern District of Texas, where he handled complex civil litigation involving ICE. In 2007, Chief Judge Short was appointed as a SAUSA in the USAO for the Eastern District of Texas, where he litigated criminal cases. From 2007 to 2009, he served as the Acting Deputy Chief Counsel and Senior Attorney in OPLA’s Dallas office. As a Senior Attorney, he litigated significant and complex immigration cases and served as the lead attorney for matters involving customs law and criminal investigations. From 2009 to 2015, he served as Deputy Chief Counsel in OPLA’s Atlanta office, where he managed litigation operations and client services in a multi- state field office. From 2015 to 2017, Chief Judge Short served as Counsel to the U.S. House of Representatives, Committee on the Judiciary’s Subcommittee on Immigration and Border
Communications and Legislative Affairs Division
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Security. From January 2017 to June 2020, he served as the ICE Principal Legal Advisor and, later, as a Senior Advisor to the ICE Acting Director. He is a member of the Louisiana State Bar Association and the State Bar of Texas.
— EOIR —
The Executive Office for Immigration Review (EOIR) is an agency within the Department of Justice. EOIR’s mission is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and administrative hearings. EOIR is committed to ensuring fairness in all the cases it adjudicates.
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The final paragraph above is, of course, a sick joke.
I predict that we will hear more from the legal and the human rights communities about this latest abuse of authority by a corrupt White Nationalist regime committed to a program of crimes against humanity.
Due Process Forever!
This November, vote like your life depends on it. Because it does!
T. Alexander Aleinikoff American Legal ScholarDeb Amos International Correspondent NPRJulie Hirshfeld Davis Congressional Reporter NY TimesMichael D. Shear White House Reporter NY Times
From: Alex Aleinikoff
Sent: Tuesday, June 30, 2020 1:58 PM
To: Immprof
Subject: [immprof] Entry Denied on the Tempest Tossed podcast
Please excuse this shameless self-promotion. We launched today the first of an 8-episode series on the Tempest Tossed podcast on Trump immigration policies. The series is called Entry Denied: Immigration policies in the time of Trump. In this first episode, Deb Amos (NPR) and I speak with NY Times reporters Michael Shear and Julie Hirshfeld Davis on how immigration became central to the Trump campaign. There will be a new episode each of the next 7 Tuesdays (on asylum, the wall, DACA, etc).
It is available on most podcast platforms (Apple, SoundCloud, Spotify)–search for Tempest Tossed.
Alex
—
University Professor
Director, Zolberg Institute on Migration and Mobility
The New School
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I trust that at some point Alex will get around to telling everyone about the time back in the Carter Administration when we were on the verge of making then Associate Attorney General John H. Shenefield an official “Immigration Officer” to serve process on the tarmac @ JFK International. Or how with a little help from our late friend Jerry Tinker, Alex, David Martin, and I “perfected” the Refugee Act of 1980 just in time for the Cuban Boatlift. Whose idea was “Cuban/Haitian Entrant Status Pending” anyway? How come you never had to visit the Atlanta Federal Penitentiary during a lockdown, Alex?
Sounds like a most timely and fascinating series involving one of the all time great modern legal minds.
Thanks and best wishes to all involved in this historic enterprise! 🍾🥂🍻
This is the first time in the pollster’s decades of tracking the country’s thoughts on immigration that more people would favor more immigration compared to those who want to see less.
Of those surveyed, 34 percent said that they want to see the U.S.’s level of immigration increase, while 28 percent said they want to see it decreased. Thirty-six percent said that the country’s immigration rate should remain the same.
Conducted May 28-June 4, the survey was completed before the Trump administration stopped the issuing of any new H-1B and other visas through the end of the year. It also came before the Supreme Court ruled that the administration’s rollback of the Obama-era Deferred Action for Childhood Arrivals Act was illegal.
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Read Marty’s full article at the link.
Interestingly, I’ve been saying on Courtside that Dems should make robust, sensible, humane, practical, immigration, refugee, and human rights policies that recognize the reality of human migration, pay attention to market forces, boost the economy, and promote Constitutional due process, equal justice, and human dignity for all in America a centerpiece of the Biden campaign.
Social justice isn’t just “aspirational” — it’s a Constitutional and a human right!
We need leaders who not only “talk the talk, but walk the walk.”
This November, vote like your life depends on it. Because it does!
Easy to see why ending racism and applying the crystal clear Constitutional requirement of due process and equal justice for all persons in the U.S. has been so hard to achieve! Achieving would start with Justices who actually believe in the Constitution!
What if Justices believed “that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness?”While some might find these rights to be “self-evident,” not so much the majority of current Supremes’ Justices who apparently believe asylum seekers to be something less than human.
The Dred Scott decision is no longer good law. When will we get Justices who unanimously stop applying it to immigrants and asylum seekers in our country?
It isn’t rocket science. You either believe in equal justice under law, as required by our Constitution, or you don’t. Just how did so many “nonbelievers” in the Constitution make it to our highest Constitutional Court?
‘Failure Is Striking’: Trump-Tapped Judge Throws Out Administration’s Asylum Restriction
U.S. District Judge Timothy Kelly panned DOJ attorneys for leaning heavily on a single newspaper article in arguing the asylum restriction was exempt from rulemaking procedures.
A federal judge in Washington, D.C., late Tuesday vacated a Trump administration rule that blocked migrants from petitioning for asylum in the U.S. if they were not first denied the protections by other countries they traveled through on their way to the southern border.
U.S. District Judge Timothy Kelly, appointed to the bench by President Donald Trump, issued the ruling nearly a year after he first rejected a temporary restraining order against the restriction. A similar challenge has played out in federal court in California, where the U.S. Court of Appeals for the Ninth Circuit has upheld a preliminary injunction against the rule. The U.S. Supreme Court had previously said the administration can enforce the measure while that court fight played out.
In Tuesday’s ruling, Kelly found Trump officials violated the Administrative Procedure Act by not following the law’s “notice-and-comment” requirement before enacting the rule. He did not address other legal claims made against the policy.
Kelly rejected arguments from Trump Justice Department attorneys that officials could skip the notice-and-comment period for this rule through the APA’s “good cause” exception. Government lawyers said making the rule available for comment before it was implemented could cause a surge of asylum seekers at the border, but Kelly said there was “not sufficient evidence” to meet the exception.
Kelly slammed DOJ attorneys for leaning heavily on an October 2018 Washington Post article in making that argument, finding that the single newspaper article did not provide evidence for their record and there was little other evidence to support their claims.
“Even assuming that the rule was likely to have had a similar effect as the regulatory change described in the article, the article contains no evidence that that change caused a surge of asylum seekers at the border—let alone one on a scale and at a speed that would have jeopardized their lives or otherwise have defeated the purpose of the rule if notice-and-comment rulemaking had proceeded,” Kelly wrote. “In fact, the article lacks any data suggesting that the number of asylum seekers increased at all during this time—only that more asylum seekers brought children with them.”
The judge similarly rejected government charts showing data on border enforcement and encounters for not directly supporting DOJ’s claims.
“At bottom, as plaintiffs point out, defendants—‘despite studying migration patterns closely’—have ‘failed to document any immediate surge that has ever occurred during a temporary pause in an announced policy.’ That failure is striking,” Kelly wrote.
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Those with NLJaccess (or who haven’t exhausted their three free articles for the month) can read the rest of Jacqueline’s article at the link. The link to the full decision in CAIR Coalition v Trump is in the excerpt. I’ll have to admit that as an admirer of CAIR’s unrelenting efforts to protect our Constitution and our legal system from Trump’s racist-inspired lawlessness, the caption of this case is particularly fitting and satisfying.
Bravo for U.S. District Judge Timothy Kelly for taking his job as an independent decision-maker and his oath to uphold the Constitution and the laws of the U.S. seriously!
This decision also casts doubt on the judicial integrity of those Supreme Court Justices who ignored the law to “greenlight” this same invalid regulation in the Barr v. East Bay Sanctuary. So far, the lower Federal Courts that have taken time to examine and reflect on the law have found Trump’s action’s unlawful. Makes one wonder why the Supremes’ majority was so overanxious to “get on with the killing” of refugees when the individual interests are life or death while the government interests are fabricated or highly exaggerated, factually inaccurate, pretexts.
When policy is made by Stephen Miller’s racist talking points rather than expert input and honest deliberation involving the common good, bad things are going to happen to those we are supposed to protect, not reject for fabricated reasons.
Still, Trump shouldn’t worry too much. He can still take his bad faith case to the D.C. Circuit where Judge Naomi “Show Me Where to Sign on My Master’s Bottom Line” Rao awaits. And, then there’s the J.R. Five who have shown the willingness and ability to accept almost any kind of unethical BS laid out by outgoing Trump SG Noel Francicso to “stick it to” vulnerable asylum seekers.
How will “The Five” function come October Term without Francisco to relay Trump’s wishes and to feed them thin cover stories that most lawyers would recognize as phony as a three-dollar bill?
A union of immigration judges is suing the Department of Justice over a policy allegedly restricting them from speaking publicly about immigration and other issues in violation of their constitutional rights, the latest escalation of tensions between the union and the federal department where they work.
The lawsuit, filed Wednesday on behalf of the National Association of Immigration Judges by attorneys with the Knight First Amendment Institute and Virginia attorney Victor Glasberg, says DOJ’s Executive Office for Immigration Review in 2017 began requiring the judges to seek preapproval to speak in their own capacity, and not on behalf of the office.
That was replaced earlier this year with a “more restrictive policy,” which mandates the judges cannot speak publicly about immigration or DOJ policies, and must obtain approval to speak, write or talk with members of the media about any other topic.
The lawsuit notes the policy was implemented during a series of changes in the immigration system and that the immigration judges are “uniquely positioned to inform the public on these issues, but the 2020 policy prevents them from doing so.”
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Those with NLJ access (or who haven’t exhausted their three free articles for the month) can read the rest of Jacqueline’s article at the link.
The “DOJ/EOIR Clown Show” 🤡rolls, on leaving the public interest in the dust and the road littered with the broken bodies and crushed souls of bona fide asylum seekers and other mistreated migrants.
Really, isn’t this continuing circus and parody of justice supposed to be under “adult supervision?” Obviously, both Congress and the Article III Courts have taken a pass on the role. So, what, in fact, are they good for?
I do understand why those responsible for this mess don’t want to be publicly “outed” for the fraud, waste, and abuse that they have created. The desire to escape accountability runs deep in bureaucracies, particularly in an Administration that lies about almost everything and consistently refuses to take responsibility for its own innumerable screw-ups. Dishonesty and lack of accountability starts at the top of this rubbish heap.
Catherine Rampell Opinion Columnist Washington Post
By Catherine Rampell
June 29 at 7:16 PM ET
Last week President Trump suspended visas for huge categories of immigrants, allegedly to “protect American jobs.”
To understand how disingenuous this rationale is, consider the case of Vihaan Baranidharan.
Vihaan is stuck in India, where he went to see his sick grandmother for what was supposed to be a short visit. Thanks to Trump’s order, he’s blocked from getting the visa stamp needed to return to Dallas. But Vihaan has not taken, nor has any plans to take, any American’s job. He doesn’t have the experience to be competitive in the U.S. job market — or even sufficient vocabulary.
Because Vihaan just finished first grade.
“What risk could he pose to the U.S. economy?” pleads his mother, Sindhu Turumalla. “He is 7.”
That doesn’t matter to the Trump administration, which is exploiting the economic downturn as another excuse to punish immigrants — whether legal or undocumented, professional or working class, entrepreneur or student, adult or child.
The United States is so far the only country to “explicitly justify mobility limitations not on grounds of health risk, but to protect the jobs and economic wellbeing of” its citizens, according to the Migration Policy Institute.
In an April executive order, Trump suspended issuance of green cards for most people applying from abroad. Last week’s executive order expanded the ban to large categories of temporary, employment-based visas. This included the highly skilled immigrants the administration usually claims it prioritizes, as well as any spouses and minor children who normally accompany these workers.
The U.S. economy is indeed in bad shape. But it’s hard to fathom that the estimated 377,000 would-be immigrants now barred from entry present much “risk to the U.S. labor market,” as Trump claims.
Keeping them out, however, could actually harm the economy in the long run. Vihaan’s family presents a helpful case study.
His dad, an executive handling cybersecurity at a major global bank, has been based in the United States since 2017 on a visa specifically for executives transferred from abroad within the same company. He manages, and hires, U.S. workers. While unemployment overall is in double digits, in his field — computer-related occupations — unemployment has declined since the pandemic began, hitting 2.5 percent in May.
What’s more, economists generally believe that highly skilled immigrants like him create job opportunities for Americans and make the country more competitive, especially in STEM, or science, technology, engineering and math, fields.
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Read the rest of Catherine’s article at the link.
Let’s see, 21 million Americans out of work.377,000 foreign workers barred. That’s less than 2% — statistically insignificant. But, politically, it’s “red meat” to Trump’s White Nationalist followers.
Beyond that, it’s largely apples and oranges. Among others, Trump is barring intracompany executives and managers, those with specialized business knowledge, skilled professionals, and those coming under exchange programs. But, the hardest hit sectors of the U.S. workforce have been things like hospitality, government, and mining.
So, Toyota is going to hire an out of work bartender to run a U.S. Division? An international tech company is going to replace its chief information officer with an out of work coal miner? Or, perhaps a laid off government bureaucrat is going to replace a seasonal camp counselor in Maine? Not likely. More realistic that the employer would simply shift the work abroad or just close or reduce the U.S. operations.
During my years in the INS, we went through various iterations of “programs” to notify state and local employment agencies when a major enforcement operation supposedly “freed up” jobs for U.S. workers — usually in agriculture or manufacturing. None of these efforts created meaningful opportunities that U.S. workers were ready, willing, and qualified to take, at least on any systematic, consistent, or widespread basis.
The oft-cited claim that “they are taking our jobs” or that deportations, exclusions, and bars “protect the American labor market” is largely unsupported by hard data. Let’s just take a look at those who advance such basically mythical claims: nativist immigration groups and GOP politicos.
These are the same folks who oppose increases in minimum wages, bust unions, eliminate health and safety protections, don’t believe in health care, weaken anti-discrimination protections, cut unemployment benefits, and support management’s unilateral right to exploit workers to the max. These are not groups and individuals with any real concerns about the health or welfare of U.S. workers except to the extent that they think their claims — supplemented with racist dog whistles identifying the “foreign invaders” as people of color — might win them some votes at election time.
Or let’s take something more basic. I just listened to a news report saying that the simple act of everyone wearing a mask could save the U.S. economy one trillion dollars. That’s real money!
So, if Trump, Pence, and the GOP really wanted to help American workers and the economy in a meaningful way, they would be pulling out all the stops to promote, actually demand, that all Americans wear masks and practice social distancing. They would be strongly supporting governors, mayors, and public health officials urging these uniform practices. Yet, that’s not what’s happening.
The visa suspension is just another Trump racist ruse. Something to make the gullible think he is concerned about them when fact is he’s never been concerned for anyone in his life except himself. But, it’s dangerous because it promotes the myth of the link between immigrants and America’s economic problems and shifts the attention from the Trump kakistocracy’s “malicious incompetence” that actually was a major contributing factor to our inept, at best, COVID-19 response and the problems and chaos that have followed.
The real situation looks more like this: 1) with the economy ailing, there would be a natural decline in job-based immigration in certain sectors because of market forces, regardless of what Trump does; 2) with America’s well-advertised failure to deal competently with COVID-19 and Trump’s ugly hate rhetoric, “immigrants with choices” may well choose other destinations (Canada is one that is already benefiting from Trump’s obsession with xenophobic immigration policies); 3) with Americans barred from entry into the EU and perhaps other countries, the vital force of immigration and its overall positive effect on the world economy will be muted in the U.S.; and 4) with the legal immigration system, including the refugee and asylum systems, shut down whatever future immigration does occur under Trump is likely to be of the extralegal variety, unscreened, unmonitored, and uncontrolled.
The latter are likely to be refugees with limited options, driven more by necessity than economics, although for many refugees persecution and economic factors are inextricably intertwined. Even here, the practical difficulties of travel during a worldwide pandemic are likely to have more of an impact than Trump’s elimination of asylum.
Indeed, our country has long benefitted from asylum seekers’ (now sadly misplaced) trust in the U.S. legal system that leads to their turning themselves in at ports of entry, surrendering near the border, or voluntarily applying at a USCIS Asylum Office in the U.S. With the U.S. legal system now in “full fraud mode” refugees stand a better chance of losing themselves in the interior than of gaining protection from a system specifically designed to treat them unfairly and abusively.
Trump claims great “success” for his abrogation of the legal immigration system and crimes against humanity. But, who really knows how many folks cross the border without our knowledge and where they end up? And, no ridiculous and wasteful wall is going to stop that.
That doesn’t mean that the extralegal immigration won’t be beneficial — past extralegal immigration has benefited the U.S. overall and often, but not always, the migrants themselves. But, by keeping migrant populations underground, living in fear and uncertainty, and subject to exploitation, we limit the immigrants’ abilities to reach their full potential and to contribute fully to our society. In other words, we limit our own capacity to get the full benefit of the reality of human migration in a global society.
In November, we have a chance to end the stupidity and cruelty and to establish a more just society that recognizes the benefits of equal justice for all and treats migrants fairly, humanely, rationally, and with respect for their legal and human rights. We can’t afford to blow it, again!
This November, vote like your life depends on it!Because it does!
