Trump Administration Quietly Drops 9th Circuit Fight In Washington v. Trump — Will Rescind 1st Travel Ban EO And Issue Another!

http://www.vox.com/2017/2/16/14640676/trump-muslim-ban-new-replace

Dara Lind reports on VOX:

“The first thing President Donald Trump repeals and replaces is going to be his own executive order on immigration.

Both Trump, in a press conference, and the Department of Justice, in a court filing, said Thursday that the president is abandoning the order he signed January 27, banning all visa holders from seven majority-Muslim countries and nearly all refugees from entering the United States.

The ban was only in effect for a week before being put on hold by a federal court — and judges around the country have been less than sympathetic to the administration’s arguments for its constitutionality. President Trump continues to believe the judges’ ruling was “a bad decision.” But he’s buckling to it anyway.”

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The Department of Justice asked the full 9th Circuit to hold the case (Washington v. Trump) in abeyance until a new Executive Order is issued. Presumably, the Department will then argue that the new EO “moots” the case and that the full court therefore should vacate the decision of the 9th Circuit panel temporarily restraining the first Executive Order. In other words, there would no longer be a “case or controversy” once the first EO is rescinded.

There may well be challenges to the new Executive Order.  We will just have to wait and see what it looks like. Most observers expect that the new order will be limited to individuals who have never entered the United States. It might therefore be more difficult to formulate a successful constitutional challenge.

However a separate suite before Judge Brinkema in the EDVA, Aziz v. Trump, analyzed in earlier blogs, had a “religious discrimination” finding that might have a better chance of applying to those whose relatives or businesses are affected by a new EO.

The full article at the link contains a further link to the relevant section of the Department’s latest filing in the 9th Circuit.

Late Breaking Update:

Reuters reports that the 9th Circuit has agreed to hold action on Washington v. Trump pending “further developments.”

http://www.huffingtonpost.com/entry/appeals-court-suspends-travel-ban-proceedings_us_58a655e0e4b07602ad532f2a?68v1jx9ghrb43g14i&

PWS

02/16/17

NEW REPORT: The Economy: Who Benefits Most From “Safety Net” Programs, Blacks Or Hispanics? Surprise: It’s Working Class Whites

https://www.washingtonpost.com/news/wonk/wp/2017/02/16/the-biggest-beneficiaries-of-the-government-safety-net-working-class-whites/

Tracy Jan reports in today’s Wonkblog in the Washington Post:

“Working-class whites are the biggest beneficiaries of federal poverty-reduction programs, even though blacks and Hispanics have substantially higher rates of poverty, according to a new study to be released Thursday by the Center on Budget and Policy Priorities.

Government assistance and tax credits lifted 6.2 million working-class whites out of poverty in 2014, more than any other racial or ethnic demographic. Half of all working-age adults without college degrees lifted out of poverty by safety-net programs are white; nearly a quarter are black and a fifth are Hispanic.”

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This is a demographic that went for President Trump in significant numbers, but which likely would be hurt by some of the reductions and eliminations of these programs generally favored by the GOP.

PWS

02/16/17

 

 

BREAKING: Politico: Alexander Acosta (Dean @FIU Law) To Be Pres’s New Labor Nominee

http://www.politico.com/story/2017/02/trump-to-announce-alexander-acosta-as-labor-secretary-nominee-235089

Josh Dawsey and Marianne LeVine report:

“President Donald Trump plans to announce on Thursday that Alexander Acosta, a former Justice Department official and current dean of Florida International University College of Law, is his new pick for labor secretary, according to a senior administration official.

. . . .

Acosta, if confirmed, would become the first Hispanic member of Trump’s cabinet. He has been confirmed by the Senate for three prior positions, which could help smooth his path to the Labor Department.”

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PWS

02/16/17

 

Time Maggie: “Day Without Immigrants”

http://fortune.com/2017/02/16/day-without-immigrants-strike/

Madeline Farber reports:

“Businesses across the United States are preparing to close as immigrants plan to partake in the “Day Without Immigrants” protests.
Immigrants—namely in Washington, Austin, and Philadelphia, among others—are planning to stay home Thursday, boycotting their jobs, businesses, and even refusing to send their children to school, the Washington Post reports. The strike is in response to President Trump’s promise to crack down on those living in the country illegally, primarily through “extreme vetting.” The immigrants will also be protesting Trump’s mission to build a wall along the Mexican border.”

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According to local news, “Busboys and Poets” and several other DC area restaurants will be closed today, and some others will open but with limited staff providing service.

PWS

02/16/17

Law360: U.S. Solicitor General — Plum Or Lemon?

Andrew Strickler at Law 360 suggests that what was once Washington’s “best legal job” might now be a “career ender” rather than a “career enhancer.” Still, probably a far cry from being the Commissioner of the “Legacy Immigration and Naturalization Service,” sometimes described as “the worst Presidential appointment in Government.”

Those of you who subscribe to Law 360 (I don’t, so all I read was the “teaser”) can read the full article here:

https://www.law360.com/articles/891376?utm_source=rss&utm_medium=rss&utm_campaign=articles_search

PWS

02/16/17

WashPost: Professors (And Former USG Senior Execs) Martin & Legomsky Analyze Judge Brinkema’s Travel Ban Decision — Religious Discrimination Finding Might Be Key To Opponents’ Future Success (Or Not)!

https://www.washingtonpost.com/local/public-safety/why-virginia-matters-in-the-travel-ban-fight/2017/02/14/27cfff3c-f2ec-11e6-b9c9-e83fce42fb61_story.html?utm_term=.880047c24800

Rachel Weiner reports:

“’Judge Brinkema spells out a lot more; she really fleshes out one of the possible claims, and that’s the religious discrimination claim,’” said David Martin, a professor at the University of Virginia who, for many years, helped shape immigration policy inside the government. ‘That may well prove to be the strongest or more fruitful line of inquiry for the plaintiffs in these various cases, particularly if they’re trying to reach past green-card holders or people on immigrant visas. It’s hard to get there without a religious discrimination case of some kind.’”

. . . .

“’It was a very well-reasoned, thoughtful decision. Frankly, I think, a more careful decision than the 9th Circuit decision,’ said Steve Legomsky, former chief counsel for immigration services in the Department of Homeland Security. In her opinion, Legomsky said, Brinkema ‘pretty methodically went through the various statements by Trump. . . . They put great weight on the opinions of the former national security officials to show the absence of counterevidence from the Trump administration. For both of those reasons, I think the Virginia opinion is very important.’
Brinkema also brings to the case extensive national security experience. She presided over the trial of Sept. 11, 2001, conspirator Zacarias Moussaoui, among other high-profile cases.

‘It was a thoughtful opinion, it’s well considered, it wasn’t hastily done like some of these other decisions had to be in light of circumstances,’ said Justin Cox of the National Immigration Law Center. His group is involved in several lawsuits against the ban, including one filed in Maryland last week focused on refugees. That case is specifically focused on religious discrimination.

‘Legally [the Virginia ruling] is actually quite significant because it’s the first court to squarely hold that the executive order violates the establishment clause,’ Cox said.

The danger for opponents of the ban is that, should the Justice Department appeal Brinkema’s decision, they will face the more conservative 4th Circuit rather than the left-leaning 9th Circuit.

‘It would be a close call,’ Legomsky said. ‘There is such strong evidence of religious discrimination — it’s really hard to know.’”

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As noted in this article, in addition to being leading academic “immigration gurus,”  both Professor Martin and Professor Legomsky have lived in the “real world” of shaping Government policies and managing programs that actually implement those policies.

As they point out, while many of the objections to the “travel ban” could be eliminated by applying it just prospectively to those outside the U.S. who have not previously been admitted, that wouldn’t necessarily overcome Judge Brinkema’s finding that the “national security” reasons asserted by the Government in her court were merely “pretext” for unconstitutional religious discrimination.

While Justin Cox might be correct that the Fourth Circuit is not as liberal as the Ninth Circuit, that distinction probably would apply to every other Circuit Court of Appeals. Having spent 13 years as an Immigration Judge in Arlington, where my decisions ultimately could be reviewed by the Fourth Circuit and Fourth Circuit law applied, I found their immigration rulings very balanced. Indeed, they sometimes cited Ninth Circuit precedent and even were ahead of the Ninth in recognizing some migrants’ rights.

While the Fourth Circuit affirmed the overwhelming majority of BIA and Immigration Judge decisions in unpublished, non-precedential decisions, when they spoke in published precedents they always had important guidance to offer. The Fourth Circuit also was not afraid to stand up to the Government and “call them out” when necessary in the field of immigration.

And, at least in the Arlington Immigration Court, we trial judges paid close attention. I think that the Fourth Circuit’s very fair and well-reasoned asylum jurisprudence, in some significant ways more faithful to the asylum law and regulations than rulings of the BIA, was one reason why asylum applicants were often successful in Arlington. That’s also why many asylum cases in Arlington could be resolved by the parties in “short hearings” based on extensive written documentation and application of the Fourth Circuit law.

There is also a wonderful pastel portrait of Judge Brinkema in her court with the full article at the link. Check it out!

PWS

02/16/17

Jack Shafer In Politico: Leaks Are An All-American Tradition!

http://www.politico.com/magazine/story/2017/02/dear-baby-donald-leaks-are-american-214785

“Un-American? Why, there is nothing more All-American than a leak! The Pentagon Papers, for example, which revealed the inner machinations of U.S. war policy and were published by the New York Times, the Washington Post and elsewhere. The Iran-Contra revelations. The diplomatic and military documents liberated by Chelsea Manning and disseminated by WikiLeaks. The Snowden cache. The Panama Papers leaks and the day-by-day leaking of classified and confidential information upon which the foundation of Page One journalism rests.

To a one, these leaks helped citizens and officeholders learn what powers were being flexed behind the scenes in their names but without their sanction. Now that he’s president and not a mere campaigner, Trump has taken the convenient position that leaks are dangerous and illegal things and that secrets should be kept secret in the name of national security. But as Sen. Daniel Patrick Moynihan noted long ago, excessive secrecy harms national security by blocking policymakers from the information that aids informed decision-making. For example, the U.S. Army and FBI denied President Harry Truman access to the “Venona decryptions”—the intercepts that documented Soviet espionage in the United States, because they deemed his White House too leaky!”

The leaks that have just exposed the lies of former national security adviser Michael Flynn have done the nation—and Vice President Mike Pence—a great mitzvah by unmasking his subterfuges. Flynn, you’ll recall, lied to Pence’s face about his pre-inauguration contacts with the Russians, and Pence carried those lies onto TV, where he shared them in January. It wasn’t until he read a Washington Post report about Flynn’s lies that he began his inquiries and learned what other White House officials had learned a couple of weeks earlier. Thus did Pence avoid becoming his generation’s Truman.

Elements of the conservative media (Daily Beacon and Daily Caller, for example) have attempted to sketch the Flynn leaks as a counterintelligence operation by the “Deep State” and former Obama officials to undermine the Trump presidency, a theory the president himself appears to endorse in his tweets. Without a doubt, the sharp knives of the existing and exiled bureaucracy can hobble and gimp the incoming administrations they oppose. It’s called obstruction, and both parties play the game, denying the Flynn leaks any status as exceptional.

Information is power, which is why bureaucracies hoard and declare it secret. Leaks, as the history books, memoirs and newspaper archives show us, are one of the most important ways government bureaucracies inform government bureaucracies what the government bureaucracies are doing. Only somebody who lived on an island of naiveté would ever move into the White House and think the Deep State won’t leak against him. Likewise, every president dispenses privileged information to the press and political allies to assist in his policymaking. Once—and if—he gets his bearings, President Trump will help himself to these behaviors. This is leaking, too, and it’s All-American, too.”

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Some leaks of intelligence information endanger lives. That’s highly problematic and is what classification and security rules were meant to prevent.

But, overall, after more than three decades in Government (during which I carefully followed the rules on confidential information), my take is that the Government regularly stretches the privilege of classifying or otherwise restricting the use of information. Much of that which is “leaked” appears to be kept “secret” largely to prevent embarrassment, hide poor performance, or gain some political advantage, particularly when it concerns politicos like Flynn.

One of the most amazing things about the whole Flynn incident is his failure to recognize that his communications with Russian officials were likely to be monitored and his decision to “forget” what he had very recently told the Russian Ambassador. Surprisingly, his memory wasn’t “jogged” even when he saw Vice President Pence publicly misrepresent the facts, based on mis-information furnished by Flynn himself. Seems like a resignation would have been in  order at that point.

PWS

02/15/17

ImmigrationProf: Professor Lauren Gilbert Reports On Effect Of EO On Detention Center

http://lawprofessors.typepad.com/immigration/2017/02/witnessing-the-impact-of-the-border-security-eo-on-one-immigration-detention-facility-by-lauren-gilb.html

“With all attention on the Muslim ban and building The Wall, the Trump Administration seems to have diverted our attention from their other plans to roll out the January 25, 2017 Executive Order on Border Security. Although that Executive Order includes a lot of language regarding The Wall, there’s also other troubling language that the Administration already appears to be implementing. Two of my students and I spent all of Friday at a detention facility with students and a faculty member from another area law school. We were amazed by the number and diversity of folks in detention. Our students did know-your-rights presentations to different groups, intakes, and talked with as many folks as we could. I would summarize my observations about what we saw as follows. While the Executive Order on border security appears to authorize immediate construction of the wall, it also does the following:

Calls for the expansion of expedited removal to anyone not in U.S. for the last two years
Build and expand use of detention facilities and contracts with local law enforcement Detain Central American asylum seekers with pending claims, even those who’ve been released on parole and passed credible fear
Dramatically limit use of parole to humanitarian situations
Use ICE/ERO and alternatives to detention to round up parolees
Use local law enforcement to arrest and detain immigrants and asylum seekers
This implementation is bound to affect many of the women and children we served at Karnes, Texas last December, both those women who passed their CFIs as well as the women who were released on their own recognizance. It also affects many other immigrants in our community without secure immigration status.”

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PWS

02/15/17

After 20 Years In The U.S., Denver Mother Of Three Faces Removal

https://www.nytimes.com/2017/02/15/us/an-immigrant-mother-in-denver-weighs-options-as-deportation-looms.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news&_r=0

JULIE TURKEWITZ reports in the NYT:

“DENVER — In the basement of a white stone church here on Tuesday night, Jeanette Vizguerra gathered up her three youngest children, slipped them into pajamas and asked herself perhaps the hardest question of her life.

Should she present herself to the immigration authorities Wednesday morning for a scheduled check-in, risking deportation?

Or should she stay in the church, one of the few places federal agents do not go, almost surely resigning herself to months or years trapped inside?

“Tonight, I have to think,” Ms. Vizguerra said. “Because I promised my children — and it was a promise — that it was going to be very difficult to remove me from this country. I have already fought so long to be here; now is not the time to give up.”

It has been a difficult week for Ms. Vizguerra, 45, one of millions of undocumented immigrants contending with an uncertain future in the Trump administration. After she was convicted several years ago of using fake documents, Ms. Vizguerra, who has spent 20 years working in the United States, was ordered out of the country. But she was granted at least five postponements of deportation, and in December, her lawyer, Hans Meyer, asked for another.

Nothing happened. She was due for a regular check-in at the local office of Immigration and Customs Enforcement on Wednesday, and as the day crept closer, Ms. Vizguerra realized the possibility that she could be whisked onto a plane and separated from her three American-born children: Zury, 6, Roberto, 10, and Luna, 12.”

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PWS

02/15/17

 

DHS Officers Cheer President Trump’s Enforcement Initiatives!

http://www.huffingtonpost.com/entry/trump-immigration-border-deportations_us_58a49e7be4b0ab2d2b1b6ed3?imubfp6pecuxwp14i&

Elise Foley reports on HuffPost:

“WASHINGTON ― When Donald Trump won the presidency in November, Shawn Moran’s border patrol colleagues high-fived and hugged each other.

“There was a real sense that we were going to be able to do our jobs again,” said Moran, vice president at National Border Patrol Council. “That turned out to be true.”

Border Patrol and Immigrations and Customs Enforcement agents complained for years that then-President Barack Obama constrained their ability to fulfill their mission. Trump campaigned on a promise that he would unleash them — and vowed to make large-scale deportation of undocumented immigrants a priority. This won Trump the endorsement of Moran’s group, which represents Border Patrol agents, and the National ICE Council, a union that represents ICE officers.

Now, Moran said, the president is keeping his promise. Immigrant rights advocates, who were horrified at a multi-state deportation effort that swept up more than 680 people last week, agreed.”

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PWS

02/15/17

HuffPost: AG Sessions Faces First Crisis — And It Isn’t Immigration!

http://www.huffingtonpost.com/entry/sessions-flynn-trump-investigation-russia_us_58a3ac76e4b03df370db99e1?q74cewg9me0q6ko6r&&

Jessica Schulberg & Ryan J. Reilly Report on HuffPost:

“WASHINGTON ― Less than a week on the job as U.S. attorney general, Jeff Sessions faces a potentially explosive situation: He was a top adviser to Donald Trump’s presidential campaign, but he’s now overseeing the agency investigating members of that campaign.

The FBI, which falls under the umbrella of Sessions’ Justice Department, is leading a multi-agency probe of possible connections between Trump associates and the Russian government. Law enforcement and intelligence officials have phone records and intercepted calls that show members of Trump’s campaign repeatedly communicated with senior Russian intelligence officials in the months before the election, the New York Times reported Tuesday. Sessions has ties to at least two of the people who are reportedly under investigation.

The FBI is also separately examining intercepted communications between the Russian ambassador to the U.S. and former Trump National Security Adviser Michael Flynn, who served with Sessions as a member of the Trump campaign’s national security advisory council. The FBI interviewed Flynn days into the Trump presidency, according to The New York Times, and reportedly had concerns about whether he was entirely forthcoming. Lying to the FBI is a felony. If the FBI investigation into Flynn’s conduct turns up wrongdoing, Sessions could be responsible for signing off on the prosecution.

Flynn, who resigned as national security adviser on Monday, denies intentionally mischaracterizing his conversations with the Russian ambassador. The incident, he said in his resignation letter, was due to the “fast pace of events.”

Investigators are also reportedly looking into Trump’s former campaign chairman Paul Manafort, whom Sessions has known since the 1970s and communicated with frequently during the campaign. Manafort said in an email that he has never been contacted by the FBI and that he has never had any connection to Putin or the Russian government. He gave a similar statement to The New York Times but added, “It’s not like these people wear badges that say, ‘I’m a Russian intelligence officer.’”

Former foreign policy adviser Carter Page and Republican operative Roger Stone are also under scrutiny, The New York Times reported.

The FBI applied for a warrant from the Foreign Intelligence Surveillance Court last year to monitor several members of the Trump team as part of its investigation, The Guardian reported in January. If the FBI wanted to request another FISA warrant to monitor those individuals, it would likely have to get approval from Sessions.”

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PWS

02/15/17

Yemeni Students In Limbo

https://www.washingtonpost.com/local/education/we-dont-know-what-we-are-going-to-do-yemeni-students-unable-to-return-home-face-uncertain-status-in-america/2017/02/14/496927d8-f204-11e6-8d72-263470bf0401_story.html?hpid=hp_local-news_yemeni-730pm%3Ahomepage%2Fstory&utm_term=.a079ca2b0c04

Emma Brown writes in the WashPost:

“Taima Aliriani, 17, center, with friends at Northern Virginia Community College in Annandale on Feb. 7. Aliriani is from Yemen and hopes to stay in the United States. (Bonnie Jo Mount/The Washington Post)
They left their families in Yemen nearly three years ago through an exchange program that aimed to introduce Muslim high school students from overseas to America. But when civil war broke out at home, they couldn’t return, and what was supposed to be a 10-month visit turned into an indefinite stay.

Now the State Department — which sponsored the program and has supported these two dozen students since they arrived in 2014 — has notified them that they’ll be on their own in a few months.

For these Yemeni students, most of them thousands of miles away from their nearest relatives, that means no more housing or living stipends, and no more community-college tuition aid. Perhaps most important, it also means no more student visas. That will leave many of them facing the prospect of losing their legal status as visitors at a time when President Trump has pledged heightened immigration enforcement.

“I don’t only have to look for a place to stay and a way to pay for myself and a way to pay for my education, but now I also have to worry about racism and legal status,” said Taima Aliriani, 17, who graduated from high school in Indiana and is now at Northern Virginia Community College. “I applied for asylum, but right now I feel like I’m probably not going to get it.”

Aliriani is one of six Yemeni exchange students who were trapped here by their country’s civil war and are now at NOVA. Six others are at community colleges in Wisconsin, and a dozen are studying in Washington state.

Last month, a week after he took office, Trump signed an executive order that barred refugees and people from seven Muslim-majority countries from entering the United States. Yemen was one of them.

The U.S. Court of Appeals for the 9th Circuit has temporarily blocked enforcement of the order, but the new administration’s push to bar citizens of those nations has terrified many Muslims, including the Yemeni exchange students who wonder what is next for them.”

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PWS

02/15/17

 

NEW FROM NEWSWEEK: “U.S. ALLIES CONDUCT INTELLIGENCE OPERATION AGAINST TRUMP STAFF AND ASSOCIATES, INTERCEPTED COMMUNICATIONS”

http://www.newsweek.com/allies-intercept-russia-trump-adviser-communications-557283

Kurt Eichenwald writes in Time Maggie:

“As part of intelligence operations being conducted against the United States for the last seven months, at least one Western European ally intercepted a series of communications before the inauguration between advisers associated with President Donald Trump and Russian government officials, according to people with direct knowledge of the situation.

Related: President Trump’s National Security Adviser Michael Flynn resigns amidst Russia controversy

The sources said the interceptions include at least one contact between former National Security Adviser Michael Flynn and a Russian official based in the United States. It could not be confirmed whether this involved the telephone call with Russian Ambassador Sergey Kislyak that has led to Flynn’s resignation, or additional communications. The sources said the intercepted communications are not just limited to telephone calls: The foreign agency is also gathering electronic and human source information on Trump’s overseas business partners, at least some of whom the intelligence services now consider to be agents of their respective governments. These operations are being conducted out of concerns that Russia is seeking to manipulate its relationships with Trump administration officials as part of a long-term plan to destabilize the NATO alliance.

Moreover, a Baltic nation is gathering intelligence on officials in the Trump White House and executives with the president’s company, the Trump Organization, out of concern that an American policy shift toward Russia could endanger its sovereignty, according to a third person with direct ties to that nation’s government.”

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PWS

02/15/17

 

BREAKING: Labor Pick Puzder Flames Out!

http://www.huffingtonpost.com/entry/andy-puzder-goes-down_us_58a4a8bce4b094a129f176f4?

HuffPost reports:

“The White House is expected to withdraw Andy Puzder’s nomination as labor secretary on Wednesday, according to multiple reports. He is the first of President Donald Trump’s nominees to not make it through the confirmation process.

The move came as support evaporated among Republicans for the former fast-food executive. At least seven Republican senators refused to publicly back the former chief executive of CKE Restaurants, which owns the burger chains Carl’s Jr. and Hardee’s, as criticism mounted over his hefty stack of labor violations and long-standing support for increased immigration.”

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PWS

02/15/17

The Fix (WashPost): Good News For The President: Anonymous Sources Can Be Unreliable

https://www.washingtonpost.com/news/the-fix/wp/2017/02/15/two-explosive-reports-on-trump-and-russia-zero-on-the-record-sources/?hpid=hp_hp-banner-main_fix-reports-1230p:homepage/story&utm_term=.80ece7ed1a80

Callum Borchers writes:

“There’s very little good news for President Trump these days. His White House is dealing with not one but two (!) explosive reports that his aides and associates were in contact with Russian intelligence officials during the campaign. But there is one bright spot for Trump: Both of the stories use zero on-the-record sources to back up their claims.”

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PWS

02/15/17