THE GIBSON REPORT — 10-19-20 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Helping ICE’s Unlawful Activities Costs LA County $14 Mil — Immigrants Create Net Gain In American Jobs!

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

 

COVID-19

Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues on listservs as best you can.

 

EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, November 6, 2020. [Note: Despite the standing order about practices upon reopening, an opening date has not been announced for NYC non-detained at this time.]

 

TOP NEWS

 

Justices take up border-wall, “remain in Mexico” cases

SCOTUSblog: The Supreme Court announced on Monday morning that it would take up two cases arising out of the Trump administration’s effort to stem immigration through the United States’ border with Mexico. The justices granted review to weigh in on the long-running dispute over the funding for President Donald Trump’s border wall, as well as the legality of the Trump administration’s “remain in Mexico” policy, which allows the Department of Homeland Security to return immigrants seeking asylum to Mexico while they wait for an asylum hearing in U.S. immigration court. See also Endless Waits At An Immigrant Camp On The Mexico Border Are Pushing Desperate People To Make Tough Choices.

 

ICE campaign targeting ‘sanctuary cities’ yields 170 arrests, and amplifies Trump campaign theme

WaPo: ICE officers made the arrests in Denver, Seattle, New York, Baltimore, Washington and in Philadelphia, where authorities chose to announce the results and where officials said 26 immigrants were taken into custody. The agency has averaged about 40,000 “at-large” arrests per year, so the numbers announced Friday did not appear to be a significant increase in enforcement activity. See also Mayor de Blasio calls on ICE agents to stop suggesting they are NYPD.

 

Boston Immigration Court Set To Resume Large-Scale Hearings With Little Guidance From Feds

WBUR: On Tuesday, the Boston immigration court will resume what are known as “master calendar hearings.” Even though the court has remained open throughout the pandemic, these proceedings, which bring large crowds of people to court, have been on hold — until now.

 

Los Angeles County votes to pay $14 million to former immigrant detainees

WaPo: The five-member Board of ­Supervisors voted unanimously Tuesday to authorize the payment, mostly to undocumented immigrants arrested on criminal charges and then held after a judge ordered them released so that federal agents could attempt to deport them. The settlement still must be approved by the judge overseeing the case, lawyers for the plaintiffs said.

 

Immigrant rights’ coalition seeks to quash broad search warrant on Facebook page

WaPo: After someone painted a slogan on the sidewalk outside the home of Virginia Attorney General Mark R. Herring during a September protest, Leesburg police launched a criminal investigation into the immigrant rights coalition that organized it, court records state…Authorities asked for virtually all of the Facebook page’s content over a five-day period, a move the group says would give law enforcement access to sensitive information about undocumented immigrants and their families, confidential health reports, and complaints by name about specific law enforcement and immigration officers.

 

Refugees Who Assisted the U.S. Military Find the Door to America Slammed Shut

NYT: President Trump has reduced the flow of refugees into the country to a trickle, and even Iraqis and Afghans who risked their lives for American service members have been cut off.

 

As jobs vanished, immigrants left California. The question is how many

LA Times: California’s immigrant population of 10.3 million in 2019 fell by 642,200, or 6.2%, during the first five months of the pandemic, the analysis found. That figure eclipses both the number of residents in Sacramento and the combined decrease in the nation’s other states, which saw immigrant populations decline by 531,000, or 1.5%, during the same March-through-July period.

 

Despite public outcry, many Cameroonians and Congolese deported on a flight

SD Union Trib: Not all of the more than 200 Cameroonians and Congolese that detainees said were transferred to a detention facility in Texas to be deported were on the flight. Some of the group remained at Prairieland Detention Center, according to Rebekah Entralgo of Freedom For Immigrants, and a few were pulled from the flight due to individual legal actions taken on their behalf. See also Cameroonian asylum seekers pulled off deportation plane amid allegations of ICE abuse.

 

Immigrants to the U.S. Create More Jobs than They Take

Kellogg: A new study finds that immigrants are far more likely to found companies—both large and small—than native-born Americans.

 

LITIGATION/CASELAW/RULES/MEMOS

 

DOJ and DHS Release Report on Incarceration and Immigration Status

DHS and DOJ released the FY2019 Alien Incarceration Report, providing data on the immigration status of known or suspected immigrants incarcerated under the custody of the Federal Bureau of Prisons, the U.S. Marshals Service, and in state prisons and local detention centers throughout the U.S. AILA Doc. No. 20101607

 

CBP Provides Data on Migrant Protection Protocols

CBP provided data on Migrant Protection Protocols from 2020, including southwest border enrollments, cases referred to USCIS, data from EOIR related to the outcome of MPP cases, and individuals apprehended entering the U.S. without inspection subsequent to being returned to Mexico through MPP. AILA Doc. No. 20081231

 

CBP Provides Custody and Transfer Statistics

CBP provided custody and transfer statistics from 2020, including data on in-custody information by location, dispositions for apprehended individuals and those considered inadmissible, and transfer destinations for individuals leaving CBP custody. AILA Doc. No. 20081232

 

Announcements of ICE Enforcement Actions

DHS and ICE announced the arrests of more than 170 individuals from 10/3 to 10/9 as part of an immigration enforcement action in sanctuary jurisdictions, including Seattle, Denver, New York, Philadelphia, Baltimore, and Washington, D.C.

 

Notice of CDC Order Suspending the Introduction of Certain Persons Through Canada and Mexico

Notice of a CDC order suspending the introduction of certain persons traveling from Canada and Mexico through land ports of entry and Border Patrol stations due to COVID-19. This order is substantially the same as the order issued on 3/20/20. AILA Doc. No. 20101402

 

AAO Sustains Form I-212 Appeal After Finding Positive Equities Warranted Favorable Exercise of Discretion

In a nonprecedent decision, the AAO sustained an appeal of a Form I-212, finding that the denial did not fully consider evidence of significant positive equities in the record, including that the applicant had lived in the U.S. for 30 years. Courtesy of Alan Lee. In Re: 9072079 (AAO 9/24/20) AILA Doc. No. 20101330

 

RESOURCES

 

 

 

EVENTS

 

 

ImmProf

 

Monday, October 19, 2020

Sunday, October 18, 2020

Saturday, October 17, 2020

Friday, October 16, 2020

Thursday, October 15, 2020

Wednesday, October 14, 2020

Tuesday, October 13, 2020

Monday, October 12, 2020

 

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

Wow, talk about fraud, waste, and abuse! Not only do DHS’s illegal, misdirected, politically-motivated “enforcement” efforts cost taxpayers big bucks, their racism-driven suppression of legal immigration actually reduces job opportunities for Americans!

While the particular illegal detentions on behalf of ICE resulting in the $14 million payout by LA County occurred under the Obama Administration, it’s no secret that Trump’s ICE has “doubled down” on efforts to coerce localities into complying with such “illegal detainers” NOT issued by “neutral and detached magistrates.” Obviously, an independent Article I Immigration Court with “neutral and detached” judges could be authorized to issue detainers where legally appropriate and justified, thus solving the problems in a way that actually complies with the Constitution and common sense.

DHS, a morass of seedy political corruption and gross mismanagement, is now engaged in a full-bore effort to aid Trump’s re-election in derogation of law and of real duties that might protect us all. In particular, they have done a poor job of messaging on the coronavirus threat. They have also separated families and endangered the lives of non-criminal “prisoners” unnecessarily jailed in unsafe conditions in their “New American Gulag.”

It’s a “rogue agency” that needs to be “reorganized, reformed, and repurposed” by a future Administration. In it’s current form, DHS is actually a threat to our national security and welfare, as it continues, under “illegal leadership” to operate as essentially “Trump’s Internal Security Police.”

Here’s an article by Maria Sacchetti from today’s Post that highlights the misdirection of DHS under Wolf’s illegal, and often immoral and unethical “leadership.” 

https://www.washingtonpost.com/national/dhs-coronavirus-outbreak-less-visible/2020/10/20/768fa0c4-12fe-11eb-bc10-40b25382f1be_story.html

PWS

10-21-20

🏴‍☠️RULE EXTENDING ASYLUM BARS TO BECOME FINAL NOV. 20, OVER OBJECTIONS OF ROUND TABLE, MANY OTHER EXPERTS — The Undoing Of U.S. Asylum Law Continues Full Speed Ahead!🤮

 

pastedGraphic.png

THE DEPARTMENTS OF JUSTICE AND HOMELAND SECURITY PUBLISH FINAL RULE TO RESTRICT CERTAIN CRIMINAL ALIENS’ ELIGIBILITY FOR ASYLUM

 

New Mandatory Bars Prevent Convicted Felons, Drunk Drivers, Gang Members, and Other Criminal Aliens from Receiving Asylum

 

WASHINGTON – Today, the Department of Justice and the Department of Homeland Security announced the publication of a Final Rule amending their respective regulations to prevent certain categories of criminal aliens from obtaining asylum in the United States. The rule takes effect 30 days after publication of the Final Rule in the Federal Register, which is scheduled to occur on Wednesday, Oct. 21.

Asylum is a discretionary immigration benefit that generally can be sought by eligible aliens who are physically present or arriving in the United States, irrespective of their status, as provided in section 208 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1158. However, in the INA, Congress barred certain categories of aliens from receiving asylum. In addition to the statutory bars, Congress delegated to the Attorney General and the Secretary of Homeland Security the authority to establish by regulation additional bars on asylum eligibility to the extent they are consistent with the asylum statute, as well as to establish “any other conditions or limitations on the consideration of an application for asylum” that are consistent with the INA. To ensure that criminal aliens cannot obtain this discretionary benefit, the Attorney General and Secretary of Homeland Security have exercised their regulatory authority to limit eligibility for asylum for aliens who have engaged in specified categories of criminal behavior.

The new bars apply to aliens who are convicted of:

(1) A felony under federal or state law;

(2) An offense under 8 U.S.C. § 1324(a)(1)(A) or § 1324(a)(1)(2) (Alien Smuggling or Harboring);

(3) An offense under 8 U.S.C. § 1326 (Illegal Reentry);

(4) A federal, state, tribal, or local crime involving criminal street gang activity;

(5) Certain federal, state, tribal, or local offenses concerning the operation of a motor vehicle while under the influence of an intoxicant;

(6) A federal, state, tribal, or local domestic violence offense, or who are found by an adjudicator to have engaged in acts of battery or extreme cruelty in a domestic context, even if no conviction resulted; and

(7) Certain misdemeanors under federal or state law for offenses related to false identification; the unlawful receipt of public benefits from a federal, state, tribal, or local entity; or the possession or trafficking of a controlled substance or controlled-substance paraphernalia.

Aliens who have committed certain domestic violence offenses, even if not convicted, will also be barred from asylum.

###

 

_________________________________________

Executive Office for Immigration Review

Office of Policy

Communications and Legislative Affairs Division

PAO.EOIR@usdoj.gov

703-305-0289

I adopt the comment of my friend and colleague Judge Ilyce Shugall, the “lead drafter” of the Round Table’s 🛡⚔️🗽⚖️comments in opposition:

This is so awful, but not unexpected.  We will keep filing comments in the hopes that a new administration reads them carefully and can un-do the harm that has been done.

Hon. Ilyce Shugall
Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Director, Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.
Knightess
Knightess of the Round Table

Due Process Forever!

PWS

10-20-20

BELOW THE RADAR SCREEN: Career Prosecutor Jonathan Fahey Quietly Installed As Head Of Office Of Principal Legal Advisor (“OPLA”) @ ICE

Jonathan Fahey
Jonathan Fahey
Principal Legal Advisor
ICE
Source: ICE Website

https://www.ice.gov/leadership

According to the ICE website, Jonathan Fahey is now the Principal Legal Advisor (“PLA”) at ICE. The “PLA” selects and supervises hundreds of ICE Chief and Assistant Chief Counsel who represent DHS in Immigration Courts nationwide as well as advises the Director of ICE and the Secretary of DHS on ICE legal matters.

Curiously, the prior PLA, Tony H. Pham is listed on the ICE website as “Senior Official Performing the Duties of The Director.” That’s bureaucratic gobbledygook for “Acting Director.” However, Fahey is not listed as “acting” in the PLA position. That leaves the question of exactly what Pham’s “official” position is these days.

Of course, it’s all part of a Trump regime “policy” of using “actings” and various related gimmicks to evade the Senate confirmation process and accompanying public scrutiny of senior political leadership at DHS. It also makes it easier for the White House to “lean on” and threaten, remove, or transfer senior officials because they lack the legitimacy and “political constituency” that comes from Senate confirmation. The ICE Director (formerly known as “Assistant Secretary”) requires Senate confirmation, the PLA does not. Incredibly, notwithstanding its “high visibility,” ICE has not had a duly appointed and confirmed Director during this Administration.

This ICE website doesn’t list Fahey’s bio. But, he’s no stranger to lawyers practicing in Northern Virginia. Here’s what Politico had to say when he joined ICE in April 2020:

DHS ARRIVAL LOUNGE — Jonathan Fahey is now a senior adviser at DHS. He previously was in the U.S. attorney’s office in the Eastern District of Virginia for 17 years, with a brief stint in 2018 as general counsel of the White House Office of National Drug Control Policy.

https://www.politico.com/newsletters/playbook/2020/04/16/trumps-impossible-adjourn-congress-bank-shot-488936

**************
Historical footnote: The DHS Chief Counsel program is the “direct descendent” of the “Legacy INS” Chief Legal Officer and later District Counsel programs that I helped establish as INS Deputy General Counsel (and occasionally Acting General Counsel) under the leadership of then INS General Counsel (now Immigration Judge) Dave Crosland and his successor the late Maurice C. “Iron Mike” Inman, Jr. Prior to that, INS Trial Attorneys were selected by the General Counsel, but were supervised and evaluated by the District Directors, actually their “clients.”

This ushered in the era of “independent legal advice” at INS, patterned on the “U.S. Attorney model.” Among other changes, it resulted in the appointment of many additional “Special Assistant U.S. Attorneys” (“SAUSAs”) from INS to assist with both civil and criminal litigation in the U.S. District Courts. It also resulted in the assignment of “Sector Counsel” to advise Border Patrol Chiefs. Additionally, a “failed power move” by the “Nelson/Inman/Schmidt Cabal” to take over the U.S. Circuit and District Court litigation from the DOJ Criminal Division, prompted the creation of the Office of Immigration Litigation (“OIL”) in the DOJ Civil Division, as well as the creation of EOIR as a separate entity to house the Immigration Courts and the BIA in 1983.

But, institutional change never comes easily, particularly at a place like the “Legacy INS.” I remember the first “Annual Commissioner’s Conference” during the tenure of the late Commissioner Al Nelson, held during the early months of the Reagan Administration. Perhaps the location was at the Federal Law Enforcement Training Center (“FLETC”) in Glynco, Georgia. In any event, it was in a “classroom-type setting.”

I found myself “in the pit” of an “amphitheater-type” classroom, the seats filled with super-irate INS District Directors and Regional Commissioners screaming that I had “stolen their attorneys.” Of course it’s always a bad idea to scream at the “loudest voice in the room” — me! So, I was shouting back at a decibel level that must of carried halfway to Atlanta!

Meanwhile, my “new boss,” “Iron Mike” was sitting in the first row alternately guffawing and shaking his head as I “aggressively defended” our policies and tried to explain how it would be a “win-win” for everyone. (It was! Eventually, almost everyone in the room was “lobbying” me for more lawyers, SAUSAs, and “personal assistance” in handling their never-ending legal problems).

Afterwards, Mike came up to me and said “Jesus, Schmidt, you managed to piss off and out-yell every manager in the country. Great job!”

Of course, “Iron Mike” was no slouch when it came to the “strategic yell” — once in a “Bobby Knight moment” sending one of our budget analysts into a fainting spell. “GENCO” in the “Time Iron Mike” wasn’t a place for the faint of heart!

And, of course his “favorite tactic” was to yell at me: “What did they teach you at that lefty law school in Madison?” No “Legal Executive Council” meeting was complete without us getting into least one “knock down drag ‘em out” in front of the “troops.” But, the relationship worked. We actually complemented each other and got a lot accomplished.

So, for better or worse (mostly seems like the latter, these days), I was one of the “Founding 
Fathers” of the modern DHS Chief Counsel/Assistant Chief Counsel system.

PWS

10-20-20

🏴‍☠️🤮👎🏻☠️⚰️DEPARTMENT OF (IN)JUSTICE: ANOTHER CAREER PROSECUTOR JUMPS BILLY’S “PLAGUE SHIP!”

Heather Cox Richardson
Heather Cox Richardson
Historian
Professor, Boston College
Billy Barr Consigliere Artist: Par Begley Salt Lake Tribune Reproduced under license, Large
Bill Barr Consigliere
Artist: Pat Bagley
Salt Lake Tribune
Reproduced under license

From Heather Cox Richardson’s Letters From An American (10-16-20):

. . . .

And yet another story from the day: a third career prosecutor from the Department of Justice resigned after publicly attacking Attorney General William Barr for abusing his power to get Trump reelected. “After 36 years, I’m fleeing what was the U.S. Department of Justice,” Phillip Halpern wrote. “[T]he department’s past leaders were dedicated to the rule of law and the guiding principle that justice is blind. That is a bygone era, but it should not be forgotten.” Noting that “Barr has never actually investigated, charged or tried a case,” Halpern expressed deep concern over Barr’s “slavish obedience to Donald Trump’s will.” “This career bureaucrat seems determined to turn our democracy into an autocracy,” he warned.

Georgetown Law Professor Paul Butler, who worked as a federal prosecutor under Barr when he was George H. W. Bush’s Attorney General, told Katie Benner of the New York Times that such criticism is “unprecedented,” and reflects Trump’s pressure on the AG. “I have never seen sitting prosecutors go on the record with concerns about the attorney general,” he said.

And yet, Barr’s willingness to bend the Justice Department to Trump’s personal will may, in the end, not be enough to keep Trump’s favor. Angry that Barr did not produce a report attacking the Russia investigation before the election, Trump just yesterday said he wasn’t happy with Barr’s performance, and might not keep him on as AG if he wins a second term.

. . . .

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

Read Heather’s full letter here: https://heathercoxrichardson.substack.com/p/october-16-2020?r=330z7&utm_campaign=post&utm_medium=email&utm_source=email

I might add that the “Courtside network” — with nationwide tentacles — has heard from numerous courageous and dedicated Immigration Judges that they are putting their careers on the line every day to uphold the Constitution and the rule of law against Billy’s corruption, White Nationalist bias, and the institutional pressures to “go along to get along.” But, few think that they can take the stress and abuse for another four years. That’s why this election is absolutely pivotal for the continued existence of our nation as a democratic republic rather than a fascist kakistocracy!

Vote ‘em out, vote em’ out! For our future and the future of the world, vote ‘em out!

PWS

10-19-20

SUPREMES TO REVIEW TRUMP ADMINISTRATION’S ILLEGAL RACIST/WHITE NATIONALIST POLICIES THAT THEY ALREADY HAVE ENABLED!  

 

Adam Liptak
Adam Liptak
Journalist
NY Times
Slowking4, CC BY-SA 2.5, via Wikimedia Commons
Creative Commons License

https://www.nytimes.com/2020/10/19/us/supreme-court-trump-wall-asylum.html

By Adam Liptak

  • Oct. 19, 2020
    Updated 12:02 p.m. ET

WASHINGTON — The Supreme Court on Monday agreed to review two major Trump administration immigration initiatives: a program that has forced at least 60,000 asylum seekers to wait in Mexico while their requests are heard and the diversion of $2.5 billion in Pentagon money to build a barrier on the southwestern border.

Lower courts blocked both measures.  But the Supreme Court, in earlier orders, allowed them to remain in effect while appeals moved forward.  

The arguments in the two cases will not be heard until after the November election. Should President Trump’s Democratic opponent, Joseph R. Biden Jr., win, his administration could take steps to make the cases moot.

In the case on asylum seekers, an appeals court in February blocked the program, known as Remain in Mexico, saying it was at odds with both federal law and international treaties and was causing “extreme and irreversible harm.”

. . . .

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

Read the rest of the article at the link.

The losers in these cases have already been determined: the innocent human lives destroyed, the rule of law, the Constitution, human decency, and the Supremes’ reputation. If the Supremes’ majority hadn’t already “pre-judged” these cases in the regime’s favor, then their unwarranted and ethically questionable “early intervention” in the process to allow the abuses of humanity, Congressional authority, and the public fisc to continue would be even more unconscionable.

Indeed, both of these cases are examples of a democracy in danger, a judicial system in decay, and a  Supremes who have established themselves as part of the problem, not the solution.

Better Federal Judges for a Better America! It starts at the polls!

Due Process Forever!

PWS

10-19-20

🇺🇸🏈👍🏼 FORMER PACKER SUPERBOWL-WINNING 🏆 HEAD COACH MIKE HOLMGREN WITH SOME GREAT ADVICE: GET TRUMP OFF THE FIELD BEFORE HE CAN DO ANY MORE DAMAGE!

Mike Holmgren
Coach Mike Holmgren
Lambeau Field 1998
Photo: David Wilson – Flickr: 19981213 24 Mike Holmgren, Lambeau Field,
Creative Commons License

https://madison.com/wsj/opinion/column/mike-holmgren-vote-to-take-president-trump-off-the-field/article_5857f1a8-6d58-56d2-acd5-19b8c1b1cac2.html

From the Wisconsin State Journal:

In more than three decades of coaching, I’ve come to learn one thing: You cannot be afraid to take a player off the field if it will help the team.

Donald Trump said he alone could fix the challenges facing our country. But as we’ve seen during these past four years, he’s in over his head — and we’re all paying the price for that. It’s time to take President Trump off the field.

Months into this pandemic, coronavirus cases are continuing to skyrocket in Wisconsin. More than 1,500 Wisconsinites have lost their lives to the pandemic. Green Bay, a city I love dearly, is seeing some of the highest infection rates in the country. Hospitals are overflowing, people are hurting, and families are needlessly suffering. More than 4,000 fewer people in Green Bay are employed now, compared to when President Trump took office. Far too many small businesses have had to close their doors for good. And the heart and soul of Green Bay — our game days with thousands of fans at Lambeau Field — are no more.

President Trump’s failure to mount a forceful response to the coronavirus pandemic will go down as one of the most consequential failures of government in American history. In Green Bay alone, the indefinite hold on fans at Lambeau Field — yet another consequence of President Trump’s failed leadership — is proving devastating to Green Bay’s small businesses. Each Packers home game provides $15 million in economic impacts to the city of Green Bay — but not this year.

. . . .

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

Read the rest of Mike’s op-ed at the link.

Trump is the biggest loser in US presidential history! Even now, he has no coherent plan for anything — just inane and largely fabricated personal grievances, insults, and childish, moronic chants and slogans! What kind of nation puts someone like this “on the field” with survival in the balance?

By contrast, Biden and Harris care about America and have intelligent plans for solving problems like health care, getting America back to work, addressing the pandemic in a scientifically credible way, protecting our environment, treating all persons equally before the law, ending racism and misogyny, and re-establishing our world leadership.

Vote like your life and the world’s future depend on it! Because they do! Get the maliciously incompetent loser off the field and put proven winners and decent human beings in charge!

PWS

10-18-20

🇺🇸🗽⚖️🆘NY TIMES WITH THE TRUTH: A VOTE FOR TRUMP IS A VOTE AGAINST AMERICA! — The Worst President In History, Not To Mention That Beyond Being Totally Incompetent & Unqualified, A Truly Horrible Human Being With NO Redeeming Values!

Trump Clown
Donald J. Trump
Famous American Clown
(Officially titled “Ass Clown”)
Artist: Scott Scheidly
Orlando, FL
Reproduced by permission
Darth Vader
D. Vader
Minister of Justice
Banana Republic of Trump
Trump Regime Emoji
Trump Regime

Donald Trump’s re-election campaign poses the greatest threat to American democracy since World War II.

Mr. Trump’s ruinous tenure already has gravely damaged the United States at home and around the world. He has abused the power of his office and denied the legitimacy of his political opponents, shattering the norms that have bound the nation together for generations. He has subsumed the public interest to the profitability of his business and political interests. He has shown a breathtaking disregard for the lives and liberties of Americans. He is a man unworthy of the office he holds.

The editorial board does not lightly indict a duly elected president. During Mr. Trump’s term, we have called out his racism and his xenophobia. We have critiqued his vandalism of the postwar consensus, a system of alliances and relationships around the globe that cost a great many lives to establish and maintain. We have, again and again, deplored his divisive rhetoric and his malicious attacks on fellow Americans. Yet when the Senate refused to convict the president for obvious abuses of power and obstruction, we counseled his political opponents to focus their outrage on defeating him at the ballot box.

Nov. 3 can be a turning point. This is an election about the country’s future, and what path its citizens wish to choose.

. . . .

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

Read the rest of the editorial here:

https://www.nytimes.com/interactive/2020/10/16/opinion/donald-trump-worst-president.html

Amen! Take back our country! 🇺🇸 We can’t survive another four years of the maliciously incompetent, racist kakistocracy🏴‍☠️!

PWS

10-17-20

 

😎👍⚖️🗽👩🏻‍⚖️👨‍⚖️🇺🇸YES! — WOW! IN A HUGE VICTORY FOR DUE PROCESS & FUNDAMENTAL FAIRNESS, PANEL LED BY JUDGE STEPHANIE THACKER WITH 2 TRUMP APPOINTEES UNANIMOUSLY BLOWS AWAY BIA ON NEXUS TO A NUCLEAR FAMILY PSG FROM EL SALVADOR! — Arlington Superstar 🌟 Litigator Aaron Caruso With Big Win For Cause Of Justice! — Hernandez-Cartagena v, Barr! — “Kardashian Rule” & Other BIA/Billy The Bigot Nonsense Smashed!

 

https://www.ca4.uscourts.gov/opinions/191823.P.pdf

HERNANDEZ-CARTAGENA v. BARR, 4th Cir., 10-15-20, published

PANEL: THACKER, RICHARDSON, and QUATTLEBUAM, Circuit Judges

OPINION BY: JUDGE STEPHANIE THACKER

KEY QUOTE:

Contrary to the BIA’s conclusion in this case, the record does not support the conclusion that Petitioner’s own conflict with the gang precipitated any of the events in question. Indeed, substantial evidence in the record compels the conclusion that at least one central reason Petitioner was targeted was her membership in the Hernandez-Cartagena family. The unrebutted evidence in the record demonstrates that the threats and violence against Petitioner, her child, and her siblings were designed to get her parents to pay up. Pursuant to Hernandez-Avalos, it is therefore unreasonable to conclude that the fact that Petitioner is her parents’ child — a member of their family, concern for whom might motivate additional payments to the gang — is not at least one central reason for her persecution.
11

IV.
For the reasons set forth herein, the petition for review is granted, the decision of
the BIA is reversed, and we remand to the BIA for proceedings consistent with this opinion.

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

Why this is important: It delivers a totally deserved “double whammy” to two of the worst and most biased precedents issued during the Trump White Nationalist “kangaroo court era” at the BIA.

First, in Matter of L-E-A, 27 I&N Dec. 40 (BIA 2017), (“L-E-A- 1”) the BIA recognized the “nuclear family” as a “particular social group.” Yet, to produce the necessary asylum denial sought by their “Trump handlers” at DOJ, the BIA erroneously found that the threatened harm had no “nexus” to the PSG.

To reach this improper and illogical result, the BIA disingenuously trashed the “normal” rules of causation. Those say that nexus is established if the harm would not have occurred “but for” membership in the protected group. Of course, there could be multiple “but fors” in a particular case, recognizing the “at least one central reason” statutory language for nexus.

That respondent was targeted for harm by gangs because his family owned a drug store that the gangs wanted to access to distribute illegal drugs. Had the respondent not been a member of his particular family, there is no reason to believe he would have have been targeted for any harm, or indeed have been of any interest to the gangs at all.

In other words, “but for” his membership in that particular family PSG, the threats would not have occurred. Essentially, a “no brainer” asylum grant that could have been quickly granted by a competent adjudicator. Any DHS appeal should have been a strong candidate for summary dismissal.

Instead of doing the obvious, the BIA invented new rules of causation. Contrary to the record, they found that family membership was essentially irrelevant to the threatened persecution. No, according to the BIA, the threats against the respondent were motivated solely the gang’s desire to sell illegal drugs through the family store, not a protected ground.

By searching for “any other motivation” and then basically substituting it to the exclusion of the clear family PSG motivation, the BIA bizarrely and erroneously concluded that the PSG was not “one central reason” for the persecution. This allowed the BIA to deny asylum to a respondent who fit squarely within the “refugee” definition.

Although the decision might have been cloaked in garbled legalese and irrational, result-oriented analysis, the overall message to Immigration Judges and BIA Appellate Judges was clear: faced with facts that demanded an asylum grant to a Central American refugee, the adjudicator should manufacture “any reason other than a protected ground” to deny protection. The BIA will have your back.

Let’s play out the BIA’s intentionally perverted analysis on a larger scale. The leaders of the Nazi movement stood to profit mightily from the eradication of the German Jewish community. Stolen artwork, confiscated wealth and property, and even the proceeds of the gold and silver obtained from collecting and melting down the dental fillings of gassed Jews found their way into Nazi bank accounts, many abroad. Thus, the BIA could view the Holocaust not as religious, nationality, or racial persecution, but rather part of an overall criminal scheme to enrich Nazi leaders by stealing from prosperous or vulnerable individuals. No persecution there!

Happily, in Hernandez-Cartagena, Judge Thacker and her colleagues blew through the type of bogus analysis set forth in L-E-A- 1. Although not specifically citing the BIA’s defective precedent, the court applied “normal rules of causation” rather than the BIA’s “any reason to deny” approach.

The petitioner was a “conduit” In the gang’s scheme to extort money from her parents. The court recognized that “it is therefore unreasonable to conclude that the fact that Petitioner is her parents’ child — a member of their family, concern for whom might motivate additional payments to the gang — is not at least one central reason for her persecution.”

Good bye and good riddance L-E-A- 1. Hello, rational analysis and well-merited protection, although sadly only within Fourth Circuit, for now.

But, that’s not the end of the tale of woe from America’s most blatantly biased, unprofessional, deadly, and totally unconstitutional “21st Century Star Chambers.” Not satisfied with the BIA’s illegal denial of protection in L-E-A- 1, two years later, Attorney General “Billy the Bigot” Barr “certified” that case to himself. That became Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) (“L-E-A- 2”).

Star Chamber Justice
“Justice”
Star Chamber
Style

His purpose? To reverse the only correct part of L-E-A- 1: the BIA’s recognition of the “nuclear family” as a “PSG.” As we all know, the nuclear family is one of the oldest, most well-established, well-defined, and universally recognized social units in human history. Not surprisingly, then, it has been recognized as a “PSG” under the Refugee Act of 1980 in numerous judicial and BIA decisions as well as by a myriad of human rights and international law scholars.

Billy Barr Consigliere Artist: Par Begley Salt Lake Tribune Reproduced under license, Large
Bill Barr Consigliere
Artist: Pat Bagley
Salt Lake Tribune
Reproduced under license

No matter to Billy! In an exercise in disingenuous legal gobbledygook and counter-rationality, he tried to explain why it was wrong to recognize the obvious: that the nuclear family” is a “cognizable PSG” for asylum adjudication purposes.

Instead, Billy substituted what I call the “Kardashian rule.” Only those families who have some sort of widespread recognition in society as a whole should be considered to possess the “social distinction” (the characteristic formerly known as “social visibility”) to qualify as a “cognizable PSG.”

Kardashians
Billy Barr’s Vision Of A “Cognizable Particular
Social Group” By hotrock pictures – Vimeo: Kardashian Kollection at Sears (view archived source), CC BY 3.0, https://commons.wikimedia.org/w/index.php?curid=82871460
Creative Commons License

Again, without specifically citing L-E-A- 2, (perhaps the OIL was too embarrassed to argue it) Judge Thacker and her colleagues “blew away” its bigoted and irrational nonsense:

We have repeatedly held “a nuclear family provides a prototypical example of a particular social group” cognizable in our asylum framework. Cedillos-Cedillos v. Barr, 962 F.3d 817, 824 (4th Cir. 2020) (internal quotation marks omitted).

Indeed, the Fourth Circuit has been a leader in recognizing the nuclear family as a PSG, going all the way back to a case where they reinstated some of my rulings as an Immigration Judge that had been wrongfully reversed by the BIA: Crespin-Valadares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011). But, hey, who remembers stuff like that from nearly a decade ago where I was once again proved right and the BIA was wrong?

Yeah, I’ll have to admit that after eight years of regularly getting “stuffed” by my BIA colleagues at en banc, there were few things in my professional life more satisfying than having a Court of Appeals “stuff” the BIA on a case where I had dissented as a BIA Judge or been reversed as an Immigration Judge!

So Billy the Bigot’s attempt to impose the absurdist “Kardashian rule” (sorry Kim, Kourtney, and Khloe) in L-E-A- 2 bites the dust, at least in the Fourth Circuit. I hope it will serve as a “blueprint” to eradicate the “twin travesties” of L-E-A- 1 & 2 across the nation!

Exhilarating as this case is, it’s just one step in the right direction. The unconstitutional White Nativist bias and abuse being heaped upon refugees and other migrants by a “Star Chamber” beholden to the likes of “Billy the Bigot” Barr and his predecessor Jeff “Gonzo Apocalypto” Sessions won’t end until EOIR is abolished and replaced with a real court system that complies with 5th Amendment Due Process. If the Article III Courts don’t have the guts to get the job done, then its up to future better Congress to make it happen!

Lots of “gold stars” to hand out here!

Aaron Caruso, Esquire
Aaron Caruso, Esquire
Partner, Abod & Caruso
Wheaton, MD
Photo Source: Abod & Caruso Website

🌟First and foremost, Aaron Caruso, Esquire, of Abod & Caruso, Wheaton, MD. He appeared before me in Arlington. He’s the “total pro,” a “judge’s lawyer:” scholarly, unfailingly courteous, prompt, well-prepared, practical, wrote outstanding “to the issue” briefs that didn’t waste my time, took tough cases, and never gave up on his clients. In a “better world,” he’s definitely someone I could see on the Federal Bench at some level. A member of the NDPA, for sure!

Judge Stephanie D. Thacker
Honorable Stephanie D. Thacker
U.S. Circuit Judge
Fourth Circuit
Photo From Ballotpedia

🌟Judge Stephanie Thacker of the Fourth Circuit. I haven’t studied all of her judicial opinions. But, based on this opinion and her outstanding and totally correct dissent in Portillo-Flores v. Barr where she cogently castigated her fellow panel members for “going along to get along” with the BIA’s “at worst nonsensical and cursory at best” asylum denial, she appears one of a painfully small number of Article III Judges who both understand the mockery of justice going on in our Immigration “Courts” and have the guts to take a strong stand against it. https://immigrationcourtside.com/2020/09/04/%E2%80%8D%EF%B8%8F%EF%B8%8F%EF%B8%8Finjustice-watch-4th-cir-judge-stephanie-thacker-cogently-castigates-colleagues-for-misapplying/

Interestingly, this is the same panel as in Portillo-Flores. And, the BIA’s sloppy and incompetent analysis, including ignoring the evidence of record, presents largely the same issues. Only, this time Judge Thacker’s colleagues paid attention to what she was saying!

That says something about both her persuasiveness and her colleagues’ willingness to listen and take a better approach to judicial review. That’s also what’s known in the business as “making progress every day, one case, one life at a time.”

Unfortunately, Trump and the GOP right wing pols have turned Federal judicial selection into a race to control justice until at least 2060. That has forced the Dems to finally wake up and do likewise the next time they get the chance. The upshot: At 55, although still in the “prime years” of her career from a professional standpoint, Judge Thacker has probably “aged out” of the sweepstakes to be the “heart and soul” of the Supremes for the next four decades.

The good news: She should be around to continue saving lives, speaking truth to power, and serving as a great role model for younger, aspiring jurists and public officials of all races and genders for many years to come.

Compare Judge Thacker’s clear, concise, cogent analysis in this case with the wandering legal gobbledygook and pure nonsense put forth by the BIA and Barr in L-E-A- 1 & 2.

🌟Judge Julius N. Richardson and Judge A. Marvin Quattlebaum, Jr., of the Fourth Circuit also deserve stars. I really lambasted these two Trump appointees for their tone-deaf performance in Portillo-Flores. But, here they surprised me by joining fully in Judge Thacker’s analysis. Shows a capacity for teamwork, listening, adjusting views, and taking judicial review seriously, all really good things!

Additionally, it’s really important and significant when Trump appointees “do the right thing” and uphold due process, fundamental fairness, and recognize asylum seekers as “persons” entitled to equal justice under our Constitution. Given the large number of fairly young Trump appointees on the Federal Bench, it’s critical that as many of them as possible join their colleagues in resisting the White Nationalist assault on the rights and human dignity of people of color, particularly migrants and asylum seekers, being orchestrated by Trump, Miller, Barr, Wolf, and the rest of the regime’s gang of bigots.

Don’t know if this will be repeated in the future, but the votes of Judge Richardson and Judge Quattlebaum in this case are an encouraging sign for the American justice system. Will it be a trend or an aberration? Can’t tell, but stay tuned.

🌟Finally, and perhaps most importantly, hats off for Sandra Marleny Hernandez-Cartagena. In the face of a bogus “court” system controlled and operated by White Nationalist racist bigots for the purpose of wiping out asylum laws, demoralizing applicants through dishonest procedures and rules meant to discourage them from seeking protection, and to “send a message” that they aren’t wanted in our country, she persisted for herself, her family, and others similarly situated. Her victory in this case is a victory for American justice and for every one of us who believe in due process, fundamental fairness, and equal justice for all.

Thanks, Sandra, for inspiring us with your courage and unrelenting persistence in the face of evil and institutionalized, illegal, bias!

Due Process Forever!

PWS

10-16-20

⚖️👩🏻‍⚖️JUSTICE-ELECT BARRETT STUMPED BY WHETHER GOVERNMENT-SPONSORED CHILD ABUSE IS ILLEGAL OR IMMORAL – Frankly, My Dears, Once They Are Out Of The Womb, Who Cares, Particularly If They Are Only Migrant Kids? – Bess Levin @ Vanity Fair With The Latest Scoop On “America’s Favorite Mother!”

Judge Amy Coney Barrett
Supreme Court Nominee by Bob Englehart, PoliticalCartoons.com
Published under license
Bess Levin
Bess Levin
Politics & Finance Writer
Vanity Fair

https://www.vanityfair.com/news/2020/10/amy-coney-barrett-child-separation?utm_source=nl&utm_brand=vf&utm_mailing=VF_Hive_101520&utm_medium=email&bxid=5bd67c363f92a41245df49eb&cndid=48297443&hasha=8a1f473740b253d8fa4c23b066722737&hashb=26cd42536544e247751ec74095d9cedc67e77edb&hashc=eb7798068820f2944081a20180a0d3a94e025b4a93ea9ae77c7bbe00367c46ef&esrc=newsletteroverlay&mbid=mbid%3DCRMVYF012019&utm_campaign=VF_Hive_101520&utm_term=VYF_Hive

 

Since Amy Coney Barrett was nominated to the Supreme Court, Republicans have suggested that one of the reasons she should be given a lifetime appointment on the highest court of the land is that she has seven kids. Barrett is “a remarkable mother” with “seven beautiful children,” Senator Thom Tillis said during the first day of her confirmation hearing. She’s a “tireless mother of seven,” Senator Chuck Grassley told the room. “She and her husband have seven children,” Senator Lindsey Graham said in his opening remarks, in case anyone hadn’t heard, before giving her two more. “She and her husband have seven children. Two adopted. Nine seems to be a good number,” he said. Obviously, constantly bringing up this part of Barrett’s biography is part of an attempt on Republicans’ part to (1) draw a distinction between Barrett and what they view as childless heathen Democrats, (2) claim that any opposition to her confirmation is anti-mom, and (3) suggest that since she’s a mother, she must be a good person who couldn’t possibly issue rulings that would hurt millions of people.

But, surprise! Despite being a mother, Barrett is expected to help overturn the Affordable Care Act. (After she was asked about this possibility, which would strip health insurance from millions, Grassley raged at his Democratic colleagues that “As a mother of seven, Judge Barrett clearly understands the importance of health care.”) She will also very likely go after Roe v. Wade, if given the chance, which some mothers would point out prevents their daughters—or even women they didn’t give birth to!— from being forced into back alley abortions. And even though she’s a mom of seven children, she apparently thinks the jury is still out on whether or not it’s bad to separate small children from their parents, if they happen to be from another country: . . . .

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

Read the rest of Bess’s article and the latest from The Levin Report at the above link.

Just for the record, the Trump DOJ conceded before U.S. District Judge Dana Sabraw (a GOP appointee) that intentional child separation is a violation of Fifth Amendment Due Process.

They also declined to appeal Judge Sabraw’s order to that effect – unusual for a regime that usually pushes the most frivolous, clearly illegal, and unethical positions for as long as possible to the highest levels of the judiciary (knowing that the “Roberts” Five” believes that ethical requirements and disciplinary procedures don’t apply to the Trump legal team assembled on your taxpayer dollars).

Wonder what would happen if we had a more honest and realistic confirmation system that allowed nominees to actually answer truthfully, rather than disingenuously claiming under oath that after a lifetime of intense public involvement in the law, politics, and public policy, they had no real views on anything of any importance whatsoever?

I actually doubt that an honest answer to this question, either way, would have cost Coney Barrett her politically-assured confirmation, nor would it have required recusal in any litigation likely to reach the Supremes’ merits docket.  So, Coney Barrett thinks we’re dumb enough to believe that after several days of her GOP sponsors touting the wonderfulness of her bold embrace of their far-right agenda — the first overtly “pro-life woman Justice” — that they are badly mistaken and, in fact, she has no views or opinions on anything.

 

It kind of reminds me of the “super-disclaimer” I used to give on those occasions when my “EOIR handlers” let me speak in public: “Nothing that I say today represents my view on any case that I decided in the past, is pending before me, or might come before me in the future.”

 

On the bright side, Coney Barrett was able to (sort of) answer the question of Sen. John “I’m Not JFK” Kennedy (R-LA) about who does the laundry at her home (supposed to be her kids, but apparently they haven’t completely gotten the message. Now, if ACB were before me in Immigration Court, this is the point when I would have turned to the kids and said “Come on kids, Mom’s doing it all for you and others, I want you to give her and your Dad a hand.”)

 

Seriously, though, Dems, here’s the definition of Justice Amy Coney Barrett: “It’s what you get when lose elections for the White House and the Senate.” If you really want the next woman Justice to be a worthy progressive successor to the legacy of RBG and a “soul mate” for Justice Sonia Sotomayor, then go out and win the elections necessary to make that happen!

 

Another huge plus: If we Dems could figure out how to translate our national political majority into control of all three political arms, we could shore up health care, address COVID in a rational way, help Americans who have lost livelihoods and confidence because of COVID, and create educational opportunities and jobs that will be durable and serve us well in the Post-COVID world. We could also address the deficit by undoing the revenue shortage resulting from unwarranted tax giveaways to the wealthy, and get “more bang for our tax dollars” by running government wisely, prudently, and efficiently, for the overall public good rather than for the benefit of grifters and their selfish, anti-democracy far-right agenda.

 

Then, we could see whether Justice Barrett will stick to her word and urge her colleagues to “let the political branches of Government make policy.” That’s something that has been a challenge for past right-wing jurists, including the late Justice Scalia. But, if it actually happened, it would make the issue of “enhancing” the Supremes with progressive Justices largely moot.

 

Which is probably why Joe & Kamala have wisely refused to “take the GOP bait” on how they might specifically solve a problem that might or might not exist in the future. I do know one thing, however. As reflective, reasonable, and thoughtful public officials who listen to expert advice, they will promote the best possible solution for all Americans under the circumstances. That’s certainly a “quantum leap” over where we are today!

 

PWS

 

10-15-20

 

PWS

10-14-20

 

 

 

 

🇺🇸🗽POLITICS: RISING SUPERSTAR,🌟FORMER BIA ATTORNEY HILLARY SCHOLTEN IN HIGH-PROFILE RACE TO “FLIP” MICH 3RD CONGRESSIONAL DISTRICT TO DEMS — Listen To My Friend Hillary Share Her Vision For A Better America On “Morning Joe!”

Hillary Scholten
Hillary Scholten
Democrat
Candidate for Congress
Michigan 3rd District

Here’s the link:

https://www.msnbc.com/morning-joe/watch/three-congressional-races-that-could-help-sway-the-election-93822021698

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

Go Hillary!!!👍🏼👍🏼👍🏼👍🏼👍🏼🗽🗽🗽🗽🗽🇺🇸🇺🇸🇺🇸🇺🇸🇺🇸😎😎😎😎😎

Hillary is an amazing example of how the younger generation of the NDPA is courageously fighting for leadership positions that will change America for the better at all levels!  The NDPA has been dominant in courtroom advocacy, scholarship, and clinical teaching. We now need to “take it beyond the courtrooms, classrooms, law journals, and op-ed pages!” 

It’s time for the NDPA to make our shared vision of due process, fundamental fairness, and equal justice for all a reality! Take the fight for social justice and America’s heart, soul, and future to the judicial benches, legislatures, and public offices — from the municipalities, to the states, to the highest levels of our Federal System — and beyond to leadership on the world stage!

Thanks, Hillary, 🥇🏆 for taking the lead!

Due Process Forever!⚖️🗽🇺🇸🧑🏽‍⚖️

PWS

10-15-20

⚖️👨🏻‍⚖️🤡👎🏻WHERE’S THE COMPETENCE? — BIA’s Misguided Decade-Long Effort To Unlawfully Disqualify Man From Relief Ends Badly, With Third Court Of Appeals Reversal In The Same Case! — THIS is “Expert Adjudication?” — No Wonder The Backlogs Are Endless!

 

https://www2.ca3.uscourts.gov/opinarch/192594p.pdf

Larios v. Attorney General, 3rd Cir., 10-14-20

PANEL: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges

OPINION BY: Judge KRAUSE

KEY QUOTE:

To determine if a noncitizen convicted of a state offense is subject to immigration consequences prescribed in federal law, the Supreme Court has instructed courts to compare whether the elements of the state offense define a crime that is the same as or narrower than the generic federal offense. See Descamps v. United States, 570 U.S. 254, 257 (2013). This

2

analysis, which has come to be known as the “categorical approach,” sounds simple in theory but has proven difficult (and often vexing) in practice, necessitating a “modified categorical approach” and generating an evolving jurisprudence around when the categorical or modified categorical approach applies.

That difficulty is borne out in the convoluted history of this case. Here, in what is now Lazaro Javier Larios’s third petition for review from prior reversals, the Board of Immigration Appeals (BIA) applied the categorical approach and held Larios ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1) for having been convicted of “a crime involving moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). Because we conclude the crime at issue—New Jersey’s terroristic-threats statute, N.J. Stat. Ann. § 2C:12-3(a)—should have been analyzed under the modified categorical approach, and, under that approach, the particular offense of which Larios was convicted is not a crime involving moral turpitude, we will grant the petition for review.

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

Three strikes and you’re out?⚾️

Yes, it’s unnecessarily complicated. That’s mostly Congress’s fault. But, what good is a supposedly “expert tribunal” that can’t correctly resolve a complicated issue after three tries spanning 10 years?

PWS

10-15-20

UNADULTERATED BS — CONEY BARRETT’S CLAIM OF “IMPARTIAL JUSTICE” FLUNKS “STRAIGHT FACE TEST” — “Amy Coney Barrett’s originalism does not work as a method of safeguarding democracy against an activist, ideologically motivated judiciary. It does, however, function quite well as a means of obscuring a far-right movement’s efforts to impose its unpopular agenda by judicial fiat.”

Judge Amy Coney Barrett
Supreme Court Nominee by Bob Englehart, PoliticalCartoons.com
Published under license
Eric Levitz
Eric Levitz
Associate Editor
Intelligencer
New York Magazine
Photo source: Twitter

https://nymag.com/intelligencer/2020/10/amy-coney-barrett-confirmation-hearing-originalism.html

Eric Levitz reports for NY Magazine:

. . . .

Even Republicans don’t have the stomach to outsource judgment on all modern constitutional questions to the slaveholding elite of a preindustrial, post-colonial backwater. As Dean of Berkeley Law Erwin Chemerinsky has observed, a ruthless adherence to text and history would require forfeiting judicial protection of “liberties such as the right to marry, the right to procreate, the right to custody of one’s children, the right to keep the family together, the right of parents to control the upbringing of their children, the right to purchase and use contraceptives, the right to abortion, [and] the right to refuse medical care,” none of which are guaranteed by the Constitution.

Amy Coney Barrett herself has acknowledged the undesirability of applying originalism indiscriminately, noting in 2016, “Adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education,” and other institutions that “no serious person would propose to undo,” even if they lack constitutional grounding. Barrett’s proposed solution to this conundrum is for courts to simply avoid ruling on cases where originalism would dictate socially unthinkable overturnings of precedent; she wrote in 2017 that “discretionary jurisdiction generally permits [the Court] to choose which questions it wants to answer.”

But this expedient degrades originalism’s claim to neutrality. If an originalist Supreme Court can apply its doctrine opportunistically — taking only those cases in which its “neutral” juridical method will yield outcomes acceptable to a “serious” person (as they define that adjective) — then originalism isn’t much of a binding restriction on judicial discretion.

What’s more, Barrett’s concession tacitly betrays awareness of a critical fact that originalists love to elide when speaking for a lay audience: Amending the Constitution has become so phenomenally difficult it’s not at all clear that the American people could promptly replace an overturned Brown v. Board of Education with an amendment forbidding school segregation, despite overwhelming popular support for that Supreme Court decision. Originalists like to portray their judicial approach as highly democratic, since they purport to defer to the letter of a democratically enacted Constitution. But once one stipulates that the demos is manifestly no longer capable of passing constitutional amendments with regularity, it becomes clear that the originalist practice of striking down democratically elected laws in deference to the letter of a centuries-old document is profoundly anti-democratic.

Of course, in real life, “originalist” Supreme Court justices haven’t just applied their method opportunistically by selecting cases in which originalism will produce a favored outcome; they’ve also simply declined to abide by their method when they feel like it. On Monday, Barrett named Antonin Scalia as her guiding light on judicial philosophy. But as Georgia State University Law professor Eric J. Segall notes, Scalia voted “for broad rules limiting congressional power to enact campaign finance reform, to commandeer state legislatures and executives to help implement federal law, and to allow lawsuits against the states for money damages by citizens of other states” without “justifying these broad rules from a textual or historical perspective,” presumably because they have no textual or historical basis.

In sum: Amy Coney Barrett’s originalism does not work as a method of safeguarding democracy against an activist, ideologically motivated judiciary. It does, however, function quite well as a means of obscuring a far-right movement’s efforts to impose its unpopular agenda by judicial fiat.

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

Read Eric’s complete article, which is an outstanding debunking of  “originalism” — a totally bogus invention of the reactionary right — intended to pervert the law and promote far-right attacks on humanity — at the link. 

Just think about it: Supposedly a bunch of guys who risked everything on a never-before-realized long shot of defeating the British King and setting up a republic actually  intended that 230 years after the fact the governors of that republic would be so backwards, unimaginative, and intellectually limited that they would still be attempting to divine the “true meaning” of various two-centuries out of date words and concepts that nobody agreed upon in the first place! Preposterous! Not to mention totally intellectually dishonest!

Obviously, if the GOP Senators actually believed that Coney Barrett would be an unbiased judge with an open mind to progressive, liberal, humane, common sense interpretations of law and committed to implementing the Constitutional guarantee of equal protection and due process under the law for all persons, they would be apoplectic. They would be outraged at Trump for foisting such an unreliable and unpredictable jurist on them! 

I’m not necessarily saying that Coney Barrett couldn’t educate herself and “get smarter” on the bench — abandoning her false dogma and actually showing some empathy, courage, independence, and commitment to equal justice for all. She wouldn’t be the first GOP-appointed Judge or Justice to move left on the bench. After all, spending a lifetime mired on the wrong side of history screwing up the lives of your fellow humans can get old, even for well-trained right-wing ideologues.

Also, she will have the benefit of the only current Justice who actually appears up to the job and consistently understands the proper role of a High Court in a democratic republic — Justice Sonia Sotomayor. Sotomayor actually “gets it right” in an amazing number of cases and usually explains her reasoning in coherent, non-legalistic terms that most folks can understand. 

But, sadly, I find relatively little in Coney Barrett’s career to predict that type of self-awareness, intellectual honesty, moral courage, and capacity for human growth. Her family situation shows some capacity for empathy and human understanding. 

But, sadly, to date, she evidently has been unable to “connect the dots” between her kids’ lives and futures and the future of humanity. To understand that but for the grace of God, the refugee she is expelling based on BS non-defects could be someone she actually loves or regards as human. That the benefits that neo-Nazi Stephen Miller is unethically and illegally stripping from deserving immigrants could be the lifeline that, but for life’s quirks, would allow her, her family, or other loved ones to survive and achieve their full human potential. The capacity to function as a real jurist certainly is there, but the will and perspective seem to be largely lacking.

In a way, Coney Barrett’s squandered potential to achieve good is her own human tragedy. But, one for which those “other than Coney Barrett” are likely to pay the ultimate price.

PWS

10-14-20

🏴‍☠️👎🏻ONLY THE BEGINNING: SUPREMES AGAIN INTERFERE WITH LOWER COURT RULING IN AID OF TRUMP’S CENSUS UNDERCOUNT SCHEME! — Communities Of Color, Democrats Likely To Be Screwed By Trump/GOP Scheme!

 

https://www.usatoday.com/story/news/politics/2020/10/13/2020-census-supreme-court-lets-administration-end-head-count-now/5975298002/

Richard Wolf reports for USA Today:

 

WASHINGTON – The Supreme Court on Tuesday temporarily allowed the Trump administration to end its 2020 census count earlier than planned, a move that could result in undercounting racial and ethnic minorities and others in hard-to-reach communities.

The Commerce Department had asked the justices to block a lower court ruling that barred the administration from stopping the head count on Oct. 5. The administration had sought to stop counting in order to determine the number of House seats and electoral votes each state gets for the coming decade by Dec. 31, before Trump might have to leave office.

While the decision was unsigned, Associate Justice Sonia Sotomayor registered her dissent. She said “meeting the deadline at the expense of the accuracy of the census is not a cost worth paying.”

. . . .

 

**************** 

So, two months wouldn’t be long enough for the USG to get the results to Trump? Gimme a break! And, since when does the most lawless Administration in history lose sleep about missing a statutory deadline? Incredible! But, hardly unexpected from a Court that “belongs” to a political party and makes little attempt to hide it. 

Interestingly, however, Justices Breyer and Kagan also “took the day off” on this one. That left Justice Sotomayor as the sole defender of an honest census count.

Justice Sotomayor’s dissent says it all:

While the decision was unsigned, Associate Justice Sonia Sotomayor registered her dissent. She said “meeting the deadline at the expense of the accuracy of the census is not a cost worth paying.”

“The harms caused by rushing this year’s census count are irreparable,” Sotomayor wrote. “And respondents will suffer their lasting impact for at least the next 10 years.”

Of course, the “irreparable harm” will skew things illegally in favor of the GOP for the coming decade. But, that’s the point of a politically weaponized Supremes! And, you can bet that Justice Barrett will do everything possible to advance the GOP program of shafting communities of color and majority-Democrat jurisdictions while seeking to maintain GOP minority control of government!

Vote ‘Em out, vote ‘Em out! At every level of Government, the GOP and their ideological judges are committed to unrelenting corruption, inequality, destroying democracy, and forcing an extreme right-wing agenda on the majority of Americans!

PWS

10-13-20

GOOD YUCKS! 😀 MOSCOW MITCH LAUGHS AS AMERICANS SUFFER! 🤮 – MM Lets Sick, Dying, Unemployed Americans Suffer W/O Economic Aid So That GOP Can “Steamroll” Barrett Appointment Opposed By Majority!

 

https://www.theguardian.com/us-news/2020/oct/13/mitch-mcconnell-laughs-covid-relief-amy-mcgrath-kentucky-senate-debate?CMP=Share_iOSApp_Other

Martin Pengelly writes in New York:

Criticised by challenger Amy McGrath in a debate on Monday night for blocking a new coronavirus relief bill, Mitch McConnell laughed.

“Trying to figure out what he is laughing about,” tweeted Claire McCaskill, a former Democratic senator from Missouri who now works for NBC News.

Nearly 7.8m coronavirus cases and almost 215,000 deaths have been recorded in the US. Amid devastating economic fallout, Congress has not passed a relief package since May, when the Democratic-held House passed a $3tn bill the Republican Senate did not take up. Donald Trump recently dynamited negotiations, which he then tried to restart.

McGrath and McConnell met to debate in Lexington during a rise in cases in Kentucky. The Democrat has raised impressive sums and stayed in touch in the polls – though victory remains unlikely.

“The House passed a bill in May and this Senate went on vacation,” McGrath said.

As McConnell chuckled, she continued: “I mean, you just don’t do that. You negotiate. Senator, it is a national crisis, you knew that the coronavirus wasn’t gonna end at the end of July. We knew that.”

As McConnell tried to interrupt, still chuckling, McGrath said: “If you want to call yourself a leader … you got to get things done and those of us who served in the marines, we don’t just point fingers at the other side. We get the job done.”

McConnell blamed the House speaker, Nancy Pelosi, saying: “Look, I know how to make deals. I made three major deals with Joe Biden during the Obama era. What the problem is here is the unwillingness of the speaker to make a deal.”

On Tuesday, after Trump tweeted “STIMULUS! Go big or go home!!!”, McConnell said the Senate would soon vote on a “skinny” bill, meant to tap into unused funds from previous legislation, a course Pelosi has already rejected.

. . . .

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Nothing funnier in times of extreme national distress than a Republican showing you where the party’s real priorities lie. HINT: It’s NOT with “We the People.”

Vote ‘em out, vote. ‘em out!

 

PWS

10-12-20

 

 

 

 

 

THE GIBSON REPORT — 10-12-20 — Compiled By Elizabeth Gibson, Esquire. NY Legal Assistance Group —  DocumentedNY Takes You Inside The Maliciously Incompetent Kakistocracy Known As Immigration “Courts,” That Aren’t “Courts” At All & Where The Victims Might Never Have Any Idea Of Why They Are Being “Ordered Deported” By “Judges” Beholden To the Regime’s Corrupt & Racist Enforcement Apparatus! (Item #5 Under “Top- News”) — Plus Other News From The Regime’s “Twilight Zone!”

Elizabeth Gibson
Elizabeth Gibson
Attorney, NY Legal Assistance Group
Publisher of “The Gibson Report”

COVID-19

Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues on listservs as best you can.

 

EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, October 30, 2020. [Note: Despite the standing order about practices upon reopening, an opening date has not been announced for NYC non-detained at this time.]

 

TOP NEWS

 

ICE Is Planning To Fast-Track Deportations Across The Country

Buzzfeed: Immigration and Customs Enforcement officials have started to implement a policy that allows officers to arrest and rapidly deport undocumented immigrants who have been in the US for less than two years, according to internal emails and documents obtained by BuzzFeed News.

 

Amid pandemic, sharply increased U.S. detention times put migrants at risk

Reuters: Detention centers now house fewer than half as many people as before the pandemic – less than 20,000 as of early October – in part because emergency health measures established in March have allowed authorities to expel nearly 150,000 migrants at the border. At the same time, the ICE data show, the average amount of time immigrants spent in U.S. detention almost tripled to three months this September compared to September 2016, before President Donald Trump took office. Detainees in September 2020 were being held nearly double the amount of time as in September 2019.

 

San Diego judge upholds state ban on private immigration detention centers

LA Times: Under the ruling, at least four immigration detention centers with the capacity to house about 5,000 people would be phased out over the coming years.

 

Justice Department cancels diversity training, including for immigration judges

SF Chron: The U.S. Justice Department has suspended all diversity and inclusion training and events for its employees, according to a memo obtained by The Chronicle, which would include judges in San Francisco and elsewhere hearing cases of immigrants seeking to avoid deportation.

 

How the Immigration Courts Malfunctioned: What We Saw

DocumentedNY: A prosecuting attorney for ICE losing a detainee´s file, immigrants spending more time in jail because the video teleconferencing system malfunctioned, a judge deporting children because they failed to show up to court. The following are some of the negligences we saw after we spent three months in the immigration courts.

 

Supreme Court Reopens Local Leader’s Immigration Case

DocumentedNY: Ravi Ragbir, an immigrant advocate who runs the New Sanctuary Coalition, has been fighting his deportation with a First Amendment claim

 

‘We Need to Take Away Children,’ No Matter How Young, Justice Dept. Officials Said

NYT: Top department officials were “a driving force” behind President Trump’s child separation policy, a draft investigation report said.

 

ICE Arrested More Than 100 Immigrants In California Weeks Before The Presidential Election

Buzzfeed: The arrests were the latest effort by ICE to target the state and its policies that reduce the cooperation between local police and federal agents when it comes to immigration enforcement.

 

The Matter Of Castro Tum

LatinoUSA: In 2018, a young Guatemalan man named Reynaldo Castro Tum was ordered deported even though no one in the U.S. government knew where he was, or how to find him. Now, more than two years later, his unusual journey through the United States’ immigration system has sucked another man back into a legal quagmire he thought that he’d escaped. This episode follows both of their stories and the fateful moment they collided.

 

LITIGATION/CASELAW/RULES/MEMOS

 

EOIR Payment Portal

EOIR: The EOIR Payment Portal is available to pay BIA Filing Fees associated with the form EOIR-26 and related BIA Motions. Filing fees for the Form EOIR-29 and related motions should continue to be paid in accordance with Department of Homeland Security (DHS) instructions. Payments for immigration court fees must follow current processes (See 8 C.F.R. 1103.7).

 

EOIR Announces 20 New Immigration Judges

EOIR announced the investiture of 20 new immigration judges, including three assistant chief immigration judges. Per the notice, EOIR’s immigration judge corps has increased nearly 70 percent since January 2017. Notice includes the judges’ biographical information and courts of appointment. AILA Doc. No. 20101200

 

Oral Argument This Week in Pereida v. Barr

ImmProf: Oral argument in the case is scheduled for this Wednesday morning, October 14, 2020 at 11:00 a.m. Eastern. The argument may be listened to live. In Pereida, the Supreme Court will decide whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.

 

Petitions of the week: Sanchez v. Wolf

SCOTUSblog: The case asks whether a grant of Temporary Protected Status authorizes eligible noncitizens to obtain lawful-permanent-resident status if those noncitizens originally entered the United States without being “inspected and admitted” – a term of art referring to lawful entry and authorization by an immigration officer.

 

USCIS Updates Policy Guidance on TPS and Eligibility for Adjustment of Status Under INA §245(a)

USCIS is updating policy guidance in the Policy Manual confirming that a grant of TPS is not admission for INA §245(a) adjustment purposes; clarifying that the applicability of decisions in the sixth and ninth circuits is limited to those jurisdictions; and incorporating Matter of Z-R-Z-C. AILA Doc. No. 20100635

 

Second District Court Grants Motion for Preliminary Injunction of USCIS Fee Rule

A district court granted the plaintiffs’ motion for a preliminary injunction and stayed the effective date of the USCIS Final Rule (except for those fees set by statute) pending resolution of the matter or further order of the court. (NWIRP et al., v. USCIS, et al., 10/8/20) AILA Doc. No. 20100909

 

District Court Declares Unlawful 2018 SIJ Policy Imposing Reunification Requirement on State Courts

A federal district court in Washington State declared unlawful a 2018 policy requiring state courts to have jurisdiction to order reunification, if warranted, before making the relevant Special Immigrant Juvenile (SIJ) findings. (Moreno Galvez, et al. v. Cuccinelli, et al., 10/5/20) AILA Doc. No. 20100842

 

BIA Rules That Cancellation of Removal Despite Criminal Conviction Precludes a Later Finding of Deportability Based on the Same Conviction

The BIA ruled that if a criminal conviction was charged as a ground of removability when cancellation of removal was granted, that conviction cannot serve as the sole factual predicate for a charge of removability in subsequent removal proceedings. Matter of Voss, 28 I&N Dec. 107 (BIA 2020) AILA Doc. No. 20100840

 

CA1 Finds “Wealthy Immigrants Returning to Jamaica” Is Not a Cognizable Particular Social Group

The court held that the petitioner’s withholding of removal claim failed, because it found that “wealthy immigrants returning to the country of Jamaica” did not form a cognizable particular social group. (Lee v. Barr, 9/22/20) AILA Doc. No. 20100535

 

CA1 Upholds Asylum Denial to Kenyan Petitioner Who Opposed Al-Shabaab

The court upheld the BIA’s denial of asylum, finding that terror attacks in Kenya by Al-Shabaab constituted generalized violence, and rejecting the petitioner’s proposed social group of westernized and Americanized Christian Kenyans who oppose Al-Shabaab. (Zhakira v. Barr, 10/2/20) AILA Doc. No. 20100901

 

CA3 Holds It Lacks Jurisdiction to Review IJ’s Discretionary Denial of Continuance to Petitioner Convicted of Aggravated Felony

Where petitioner, who had been convicted of an aggravated felony, argued that the BIA erred in upholding the IJ’s denial of his motion for a continuance, the court dismissed the petition, finding he had failed to state a constitutional claim or question of law. (Mirambeaux v. Barr, 10/2/20) AILA Doc. No. 20100903

 

CA3 Rejects Due Process Claims of Mexican Petitioner Who Sought Cancellation of Removal

Where BIA had dismissed petitioner’s appeal on the ground that his removal would not cause his daughters “exceptional and extremely unusual hardship,” the court rejected his two due process challenges, finding that neither was a constitutional claim. (Hernandez-Morales v. Att’y Gen., 9/2/20) AILA Doc. No. 20100902

 

CA5 Upholds Denial of Asylum to Chinese Petitioner Who Claimed He Had an Anti-Corruption Political Belief

The court upheld the BIA’s denial of asylum to the Chinese petitioner, finding that the evidence did not compel a reasonable factfinder to conclude that the petitioner had been persecuted for his political opinion rather than for personal reasons. (Du v. Barr, 9/14/20) AILA Doc. No. 20100540

 

CA8 Finds BIA Did Not Abuse Its Discretion in Denying Petitioner’s Motion to Reopen Based on Ineffective Assistance

The court upheld the BIA’s denial of the petitioner’s motion to reopen, finding that the petitioner had not substantially complied with the requirements in Matter of Lozada for reopening removal proceedings based on alleged ineffective assistance of counsel. (Avitso v. Barr, 9/22/20) AILA Doc. No. 20100537

 

CA9 Upholds District Court Order Prohibiting Government from Detaining Certain Minors in Hotels for Longer Than 72 Hours

The court denied the government’s motion for a stay of the district court’s order precluding DHS from placing minors detained under a Title 42 public health order in hotels for more than three days in the process of expelling them from the United States. (Flores v. Barr, et al., 10/4/20) AILA Doc. No. 20100906

 

CA9 Upholds Asylum Denial to Guatemalan Petitioner Who Did Not Report Abuse by Ex-Boyfriend to Police

Upholding the denial of asylum to the petitioner, who had been abused by her ex-boyfriend, the court held that substantial evidence supported the conclusion that the Guatemalan government could have protected the petitioner had she reported her abuse. (Velasquez-Gaspar v. Barr, 9/30/20) AILA Doc. No. 20100904

 

CA9 Finds Petitioner Was Properly in Asylum-Only Proceedings and IJ Lacked Jurisdiction to Consider Adjustment of Status Request

The court held that the termination of petitioner’s grant of asylum by reopening his asylum-only proceedings was not error, and that the IJ did not have jurisdiction to consider his request for adjustment of status because of the limited scope of such proceedings. (Bare v. Barr, 9/16/20) AILA Doc. No. 20100630

 

CA9 Holds That Petitioner’s Oregon Conviction for Manufacture of a Controlled Substance Was an Aggravated Felony

The court held that Oregon Revised Statute §475.992(1)(a) is divisible as between its “manufacture” and “delivery” terms, and that the petitioner’s conviction under that statute for manufacturing marijuana was thus an aggravated felony. (Dominguez v. Barr, 7/21/20, amended 9/18/20) AILA Doc. No. 20081036

 

CA9 Says Conviction Under California Penal Code §245(a)(1) for Assault with a Deadly Weapon Other Than a Firearm Is a CIMT

Deferring to the BIA’s decision in Matter of Wu, the court held that a conviction under California Penal Code §245(a)(1), which proscribes certain aggravated forms of assault, is categorically a crime involving moral turpitude (CIMT). (Safaryan v. Barr, 9/17/20) AILA Doc. No. 20100631

 

CA9 Overrules Minto v. Sessions and Concludes Resident of CNMI Is Not Removable Under INA §212(a)(7)(a)(i)

The en banc court overruled Minto v. Sessions, holding that the petitioner, who was present in the Commonwealth of the Northern Mariana Islands (CNMI) when the INA became applicable there, was not removable under INA §212(a)(7)(a)(i). (Torres v. Barr, 9/24/20) AILA Doc. No. 20100538

 

DOS Issues Update on Court Order Regarding Presidential Proclamation 10052

DOS announced that due to the injunction in NAM v. DHS, any J-1, H-1B, H-2B, or L-1 applicant who is either sponsored (as an exchange visitor) by, petitioned by, or whose petitioner is a member of, one of the plaintiffs in the suit is no longer subject to PP 10052’s entry restrictions. AILA Doc. No. 20100536

 

RESOURCES

 

 

EVENTS

   

 

ImmProf

 

Monday, October 12, 2020

Sunday, October 11, 2020

Saturday, October 10, 2020

Friday, October 9, 2020

Thursday, October 8, 2020

Thursday, October 8, 2020

Wednesday, October 7, 2020

Tuesday, October 6, 2020

Monday, October 5, 2020

 

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Only the “tip of the iceberg” in a thoroughly corrupt and totally dysfunctional system that nobody seems willing to put out of its misery and the injustices that it causes humanity and the rule of law each day that it continues to grind out gross miscarriages of justice!

PWS

10-13-20