Withholding of Removal – Page 24 – immigrationcourtside.com

HON. JEFFREY CHASE ON MATTER OF E-F-H-L- — SESSIONS’S OUTRAGEOUS ATTTACK ON DUE PROCESS AND RIGHTS OF VULNERABLE ASYLUM SEEKERS SHOWS WHY COURT SYSTEM CONTROLLED BY BIASED A.G. IS A FARCE!

https://www.jeffreyschase.com/blog/2018/3/10/the-ags-strange-decision-in-matter-of-e-f-h-l-

Mar 10 The AG’s Strange Decision in Matter of E-F-H-L-

On Monday, the Attorney General’s strange decision in Matter of E-F-H-L- had many of us talking well into the night. As background, the BIA published its precedent decision in Matter of E-F-H-L- in 2014. The case involved an immigration judge’s decision that an asylum applicant’s claim was not deserving of a merits hearing. Instead of a hearing at which he would have had the opportunity to testify, present witnesses, file documentary evidence, and present legal arguments, the immigration judge simply denied the case on the written application alone. On appeal, the BIA reached the obvious conclusion that all asylum applicants merit the right to a hearing, and remanded the record back to the immigration judge for that purpose.

Four years later (i.e. this past Monday), Attorney General Jeff Sessions unexpectedly inserted himself into the matter. It seems that by the time the record arrived back in immigration court, the respondent was now eligible to obtain lawful permanent residence based on a relative petition. As such petition is a far more certain and direct route to legal status, and carries greater benefits, the respondent followed the common practice of withdrawing his application for asylum in order to proceed on the visa petition alone. Furthermore, because USCIS (and not the immigration judge) has the authority to decide the visa petition, both the respondent and DHS agreed to administratively close proceedings in order to allow USCIS to adjudicate the petition (which often takes some time) without either having such effort delayed by removal proceedings, or wasting the court’s valuable time by holding unnecessary status-check hearings. Ordinarily, once the visa petition is decided one way or the other, the parties will move the immigration judge to recalendar the case.

However, such cooperation, efficiency, and consideration is apparently not to the AG’s liking. On Monday, he determined that because the matter was remanded for an asylum hearing, but the asylum application was subsequently withdrawn, the Board’s precedent guaranteeing asylum applicants the right to a hearing should for some reason be vacated. He further ordered an end to administrative closure, and that the case be placed back on the IJ’s active hearing calendar, where time and taxpayer money can be wasted on unnecessary hearings, which could possibly delay USCIS in adjudicating the visa petition.

So what does all of this mean? First, Sessions has now done away with a Board precedent decision entitling all asylum applicants to a full hearing. The Board’s original decision in E-F-H-L- cited regulations, statute, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, case law, and common sense in reaching such conclusion. The fact that years later, the respondent became eligible for another form of relief in no way negates the Board’s reasoned conclusion.

Additionally, the AG’s action might have a chilling effect on immigration judges. In the past, Attorneys General have certified cases to themselves where they disagreed with a decision reached by the Board. However, I don’t believe an AG has ever before followed a case years later all the way down to the immigration court level and chosen to certify a case because of an action taken by the immigration judge in the normal course of proceedings. Administratively closing a proceeding to allow USCIS to adjudicate a visa petition is standard procedure – DHS agreed to such action. Yet now, immigration judges have to worry that the AG is watching. How quickly will judges administratively close under the same circumstances, even if everyone agrees it is the correct thing to do?

Furthermore, as it is extremely unlikely that Sessions is reviewing every decision every immigration judge is making, someone – in DHS? In EOIR? – is signalling the AG’s office of cases such as this one. Although the immigration courts and BIA are supposed to be neutral, the playing field is not level when the respondent must appeal an unfavorable to the federal circuit courts, whereas DHS can simply ask the Attorney General to reverse a decision of which it disapproves.

Copyright 2017 Jeffrey S. Chase. All rights reserved.

REPRINTED BY PERMISSION.

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How many innocent, vulnerable individuals will die or have their lives ruined by the travesty of justice unfolding under Jeff Sessions before Congress takes the necessary action to free the U.S. Immigration Courts from blatant and unwarranted political interference in decision-making?

We need an independent Article I U.S. Immigration Court now!

PWS

03-12-18

TAL @ CNN TELLS ALL ON HOW SESSIONS IS USING HIS AUTHORITY OVER THE SCREWED UP U.S. IMMIGRATION COURTS TO ATTACK DUE PROCESS & TARGET VULNERABLE ASYLUM SEEKERS — One Of My Quotes: “I think due process is under huge attack in the immigration courts. Every once in a while Sessions says something about due process, but his actions say something quite different.”

https://www.cnn.com/2018/03/10/politics/sessions-immigration-appeals-decision/index.html

Sessions tests limits of immigration powers with asylum moves
Tal Kopan
By Tal Kopan, CNN
Updated 8:01 AM ET, Sat March 10, 2018

Washington (CNN)The US immigration courts are set up to give the attorney general substantial power to almost single-handedly direct how immigration law is interpreted in this country — and Jeff Sessions is embracing that authority.

Sessions quietly moved this week to adjust the way asylum cases are decided in the immigration courts, an effort that has the potential to test the limits of the attorney general’s power to dictate whether immigrants are allowed to enter and stay in the US and, immigration advocates fear, could make it much harder for would-be asylees to make their cases to stay here.
Sessions used a lesser-known authority this week to refer to himself two decisions from the Board of Immigration Appeals, the appellate level of the immigration courts. Both deal with asylum claims — the right of immigrants who are at the border or in the US to stay based on fear of persecution back home.

In one case, Sessions reached into the Board of Immigration Appeals archives and overturned a ruling from 2014 — a precedent-setting decision that all asylum cases are entitled to a hearing before their claims can be rejected. In the other, Sessions is asking for briefs on an unpublished opinion as to how much the threat of being the victim of a crime can qualify for asylum. The latter has groups puzzled and concerned, as the underlying case remains confidential, per the Justice Department, and thus the potential implications are harder to discern. Experts suspect the interest has to do with whether fear of gang violence — a major issue in Central America — can support asylum claims.
A Justice official would say only on the latter case that the department is considering the issue due to a “lack of clarity” in the court system on the subject. On the former, spokesman Devin O’Malley said the Board of Immigration Appeals’ 2014 holding “added unnecessary cases to the dockets of immigration judges who are working hard to reduce an already large immigration court backlog.”
Tightening asylum
Sessions referring the cases to himself follows other efforts during his tenure to influence the courts, the Justice Department says, in an effort to make them quicker and more efficient. In addition to expanding the number of Board of Immigration Appeals judges and hiring immigration judges at all levels at a rapid clip, the Justice Department has rolled out guidance and policies to try to move cases more quickly through the system, including possible performance measures that have the judges’ union concerned they could be evaluated on the number of closed cases.

“What is he up to? That would be speculation to say, but definitely there have been moves in the name of efficiency that, if not implemented correctly, could jeopardize due process,” said Rená Cutlip-Mason, until last year a Justice Department immigration courts official and now a leader at the Tahirih Justice Center, a nonprofit that supports immigrant women and girls fleeing violence.
“I think it’s important that the courts balance efficiencies with due process, and any efforts that are made, I think, need to be made with that in mind,” she added.
The Board of Immigration Appeals decisions could allow Sessions to make it much harder to seek asylum in the US.
Asylum is a favorite target of immigration hardliners, who argue that because of the years-long backlog to hear cases, immigrants are coached to make asylum claims for what’s billed as a guaranteed free pass to stay in the country illegally.
Advocates, however, say the vast majority of asylum claims are legitimate and that trying to stack the decks against immigrants fleeing dangerous situations is immoral and contrary to international law. Making the process quicker, they argue, makes it harder for asylum seekers — who are often traumatized, unfamiliar with English and US law, and may not have advanced education — to secure legal representation to help make their cases. The immigration courts allow immigrants to have counsel but no legal assistance is provided by the government, unlike in criminal courts.
Reshaping the immigration courts
Beyond asylum, Sessions’ efforts could have far-reaching implications for the entire immigration system, and illustrate the unique nature of the immigration court system, which gives him near singular authority to interpret immigration laws.
Immigration cases are heard outside of the broader federal court system. The immigration courts operate as the trial- or district-level equivalent and the Board of Immigration Appeals serves as the appellate- or circuit court-level. Both are staffed with judges selected by the attorney general, who do not require any third-party confirmation.
How Trump changed the rules to arrest more non-criminal immigrants
How Trump changed the rules to arrest more non-criminal immigrants
In this system, the attorney general him or herself sits at the Supreme Court’s level, with even more authority than the high court to handpick decisions. The attorney general has the authority to refer any Board of Immigration Appeals decision to his or her office for review, and can single-handedly overturn decisions and set interpretations of immigration law that become precedent followed by the immigration courts.
The power is not absolute — immigrants can appeal their cases to the federal circuit courts, and at times those courts and, eventually, the Supreme Court will overrule immigration courts’ or Justice Department decisions. That’s especially true when cases deal with constitutional rights, said former Obama administration Justice Department immigration official Leon Fresco. Fresco added that the federal courts’ deference to the immigration courts’ interpretation of the law has decreased in the past 10 years, though that could change as more of the President’s chosen judges are added to the bench.
But Sessions could be on track to test the limits of his power, and the moves might set up further intense litigation on the subject.
“From what I can see, Sessions is really testing how far those powers really go,” said Cutlip-Mason. “The fact that the attorney general can have this much power is a very interesting way that the system’s been set up.”
Retired immigration Judge Paul Wickham Schmidt, who served for years in federal immigration agencies and the immigration courts, said that to say the immigration courts are full due process is “sort of a bait and switch.” He says despite the presentation of the courts’ decisions externally, the message to immigration judges internally is that they work for the attorney general.
“I think due process is under huge attack in the immigration courts. Every once in a while Sessions says something about due process, but his actions say something quite different.”

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The idea that the U.S. Immigration Courts can fairly adjudicate asylum cases and provide Due Process to migrants with Jeff Sessions in charge is a bad joke.

America needs an independent Article I Immigration Court.

Harm to the most vulnerable among us is harm to all of us.

PWS

03-11–17

ANA COMPOY @ QUARTZ — WHILE YOU WERE SLEEPING, JEFF SESSIONS WAS HARD AT WORK DISMANTLING DUE PROCESS IN THE AMERICAN JUSTICE SYSTEM — We’re Headed For a Monumental Train Wreck In The “REAL” Article III Courts As Sessions Tries To Force “Kangaroo Court” Work Product Down Their Throats (Again) — I’m Quoted In This Article

https://qz.com/1223294/jeff-sessions-is-quietly-remaking-the-us-immigration-system/

It’s been a busy week for Jeff Sessions. The US attorney general is deploying his broad powers to remake the US’s immigration system instead of waiting for Congress to pass legislation.
Late Tuesday, he filed a lawsuit against the state of California, for its policies limiting cooperation between state officers and federal immigration agents. “Federal law is the supreme law of the land,” he said in a speech in Sacramento on Wednesday.
Far more quietly, on Monday, Sessions took the unusual step of digging up an old legal decision that affirmed asylum-seekers’ right to a make their case in court—and cancelled it. That little-noticed move has the potential of doing more to further Trump’s efforts to deport undocumented immigrants than his attack on so-called sanctuary jurisdictions like California.

Sessions’s choice to revisit the four-year-old case on Monday was not explained in his three-paragraph announcement. A Justice Department spokesperson tells Quartz that the decision which Session overruled had “added unnecessary cases to the dockets of immigration judges, who are working hard to reduce an already large immigration court backlog.”
The mountain of pending immigration cases, which now stands at nearly 670,000, has emerged as a major bottleneck for Trump’s administration. Regardless of their legal status, many immigrants are entitled to a day in court under the law. With US immigration courts chronically understaffed, that can take years. Many applications will likely be processed more quickly—and denied—if asylum-seekers aren’t given the chance to argue their case.
The Matter of E-F-H-L

As head of the Department of Justice, Sessions oversees the country’s immigration courts, and the Board of Immigration Appeals (BIA,) where parties can contest immigration judge decisions. Unlike federal or state courts, the immigration court system is not part of an independent judicial branch, but embedded within a president’s administration.

Critics—including many immigration judges—say that setup makes the court system vulnerable to political interference, and there’s evidence that both Democratic and Republican administrations have done that to further their goals.
Among the attorney general’s powers is the ability to single-handedly overwrite any decisions by the BIA, as Sessions did on Monday. The decision he is zeroing in on is related to a case dubbed “Matter of E-F-H-L,” after the initials of the person who brought it to the appellate body. E-F-H-L, a Honduran immigrant, requested asylum. He appeared before an immigration court, but didn’t get a chance to testify because the judge determined E-F-H-L had no chance of getting asylum based on his application.
E-F-H-L appealed the decision to the BIA, which found that the judge had dismissed the case prematurely. An asylum applicant, it said in its decision, “is entitled to a hearing on the merits of the applications, including an opportunity to provide oral testimony and other evidence.” By striking it, Sessions is signaling that giving asylum seekers that chance is no longer required.
Paul Schmidt, a former immigration judge, says it’s important to hear out asylum applicants even if their case doesn’t look very solid on paper. Many of them—around 20% whose cases were decided in fiscal 2017—don’t have a lawyer, and are not familiar with the kind of information that should be included in the application. Others don’t even speak English. “You can’t always tell how the case is coming out just by looking at the application,” he said.
But another retired immigration judge, Andrew Arthur, welcomed the apparent change. “Given the fact that an asylum merits case can take anywhere between two hours and several days, this authority will allow those judges to streamline their dockets and complete more cases in a timely manner,” he wrote in a post for the Center for Immigration Studies, a think tank that advocates for reducing undocumented immigration.
Sessions’s decision also appears to target the asylum system in particular, which he’s said is being gamed by people with false claims. The precedent it sets is bound to make it more difficult for asylum seekers to make their case.
Administrative closure

Sessions’s sudden interest in E-F-H-L also appears to be related to a tool immigration judges often use referred to as “administrative closure.” That’s when a judge decides to put a case on the back burner instead of immediately deciding whether a person can stay in the US or should be deported.
There are several reasons why judges might delay a case’s decision. Sometimes rescheduling helps them organize their crowded docket; other times an immigrant may be in the middle of a visa application with US Citizen and Immigration Services, in which case it makes sense to wait until that process is completed, says Lenni Benson, a professor at New York Law School.
That appears to have been E-F-H-L’s case. In its decision, the BIA ordered the judge to give E-F-H-L a proper hearing, but by that time, he had applied for a family-based visa and didn’t want to follow through on his asylum claim. So the judge put the case in administrative closure. In his Monday decision, Sessions argued that since the immigrant is no longer applying for asylum, his case should be put back on the docket and resolved.
It seems odd that the head of the Justice Department would make time in his busy schedule to single out an obscure four-year-old case. But Benson says it fits within a broader effort to remove judges’ ability to put a case on hold.
Earlier this year, Sessions used his authority to pluck another case, this one involving a Guatemalan minor, to question the use of administrative closure. He is currently asking for input before taking any action, however. (Several groups, including the Safe Passage Project, a non-profit where Benson runs a program to train pro bono lawyers to represent immigrant youth, have filed a brief advocating for Sessions to keep the practice.)
If he doesn’t, the group of affected immigrants would be much broader than just asylum seekers. The use of administrative closure expanded during the Obama presidency. Because that administration’s focus was on criminals, the cases of many undocumented immigrants with a clean record became lower priorities. Administrative closure essentially took those immigrants off the list of deportation targets, even if their legal status remained unchanged.
The Trump administration, however, has made it clear it’s going after everyone who is in the country illegally. With efforts to change immigration law stalled in Congress, Sessions appears to be doing everything he can administratively to carry out Donald Trump’s vision.

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As Judge Arthur acknowledges, a “real” Due Process asylum merits hearing takes from two hours to two days — a big deal. So, his solution is to eliminate the hearing and thereby the respondent’s only chance to fully present her or his case.

Even if the respondent loses before the Immigration Judge, he or she is entitled to an appeal to the BIA and review in the Court of Appeals. Sometimes the BIA and more often the Circuit Courts disagree with the legal standards applied by the Immigration Judge. How does a respondent make a showing of what evidence supports his or her claim if not allowed to testify on that claim?

Haste makes waste. During the Ashcroft regime, there DOJ also attempted to short-circuit Due Process by “streamlining” cases, primarily at the BIA level. The result, as I have noted before, was a tremendous mess in the Circuit Courts, as court after court found that the records sent to them for review were rife with legal errors, incomplete, inadequate, or all three.

The result was tons of remands that essentially tied up large portions of the Federal Court System as well as the DOJ on cases that were “Not Quite Ready For Prime Time.” However, many individuals who did not have the resources to appeal their cases all the way to the Circuit Courts were illegally removed from the US without receiving the fair hearings guaranteed by statute or the Due Process guaranteed by our Constitution.

Sessions, with the encouragement of folks like Judge Arthur, seems to be determined to repeat this grotesque abuse of American justice. However, this time there is a “New Due Process Army” out there with some of the top legal minds in the country prepared to fight to stop Sessions and his cohorts from violating the Constitution, our statutes, our values, and the rights of the most vulnerable among us.

Harm to one is harm to all!

PWS

05-08-18

SESSIONS APPEARS TO BE MOUNTING ALL-OUT ATTACK ON DUE PROCESS AND THE RIGHTS OF VULNERABLE ASYLUM SEEKERS IN “CAPTIVE” U.S. IMMIGRATION COURTS — “Out Of The Blue” Certification Of Matter Of A-B- Could Turn Deadly For Those At Risk!

3918

Cite as 27 I&N Dec. 227 (A.G. 2018) Interim Decision #3918

Matter of A-B-, Respondent

Decided by Attorney General March 7, 2018

U.S. Department of Justice Office of the Attorney General

The Attorney General referred the decision of the Board of Immigration Appeals to himself for review of issues relating to whether being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum and withholding of removal, ordering that the case be stayed during the pendency of his review.

BEFORE THE ATTORNEY GENERAL

Pursuant to 8 C.F.R. § 1003.l(h)(l)(i) (2017), I direct the Board of Immigration Appeals (“Board”) to refer this case to me for review of its decision. The Board’s decision in this matter is automatically stayed pending my review. See Matter of Haddam, A.G. Order No. 2380-2001 (Jan. 19, 2001). To assist me in my review, I invite the parties to these proceedings and interested amici to submit briefs on points relevant to the disposition of this case, including:

Whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable “particular social group” for purposes of an application for asylum or withholding of removal.

The parties’ briefs shall not exceed 15,000 words and shall be filed on or before April 6, 2018. Interested amici may submit briefs not exceeding 9,000 words on or before April 13, 2018. The parties may submit reply briefs not exceeding 6,000 words on or before April 20, 2018. All filings shall be accompanied by proof of service and shall be submitted electronically to AGCertification@usdoj.gov, and in triplicate to:

United States Department of Justice Office of the Attorney General, Room 5114 950 Pennsylvania Avenue, NW Washington, DC 20530

All briefs must be both submitted electronically and postmarked on or before the pertinent deadlines. Requests for extensions are disfavored.

227

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Something pretty strange is going on here! The BIA has never, to my knowledge, held that “being a victim of private criminal activity constitutes a cognizable ‘particular social group.'” Quite to the contrary, the BIA has always found that “victims of crime” are not a PSG.

Moreover, “Matter of A-B-” is not a BIA precedent. In fact, it’s impossible to tell from the cryptic certification what facts or context the amici should address.

Stay tuned. But, given Sessions’s record of hostility and outright misrepresentations concerning asylum seekers, we could be heading for a monumental, years long battle in the Article III Federal Courts as to whether the U.S. will continue to honor our Constitutional, statutory, and international obligations to protect “refugees” applying for asylum.

PWS

03-07-18

WHEN EVERYTHING & EVERYBODY IS A PRIORITY, THERE ARE NO PRIORITIES — WHAT “GONZO” IMMIGRATION ENFORCEMENT IS REALLY ABOUT!

At CNN, the “Amazing Tal” has it all for you:

Happy Friday!
Hope you’re battening down the hatches during this Nor’easter.
You may have already seen, but wanted to send you my latest story this morning, a deep dive into immigration arrests.
Have a great weekend and stay safe!
Tal

http://www.cnn.com/2018/03/02/politics/ice-immigration-deportations/index.html

How Trump changed the rules to arrest more non-criminal immigrants
By Tal Kopan, CNN
A businessman and father from Ohio. An Arizona mother. The Indiana husband of a Trump supporter. They were unassuming members of their community, parents of US citizens and undocumented. And they were deported by the Trump administration.
It’s left many wondering why the US government is arresting and deporting a number of individuals who have often lived in the country for decades, checked in regularly with immigration officials and posed no danger to their community. Many have family members who are American citizens, including school-aged children.
President Donald Trump famously said in a presidential debate that his focus is getting the “bad hombres” and the “bad, bad people” out first to secure the border, but one of his first actions after taking office was an executive order that effectively granted immigration agents the authority to arrest and detain any undocumented immigrant they wanted.
Where the Obama administration focused deportation efforts almost exclusively on criminals and national security threats, as well as immigrants who recently arrived illegally, the Trump administration has also targeted immigrants with what are called final orders of removal — an order from a judge that a person can be deported and has no more appeals left.
In Trump’s first year, US Immigration and Customs Enforcement arrested 109,000 criminals and 46,000 people without criminal records — a 171% increase in the number of non-criminal individuals arrested over 2016.
The Trump administration regularly says its focus is criminals and safety threats, but has also repeatedly made clear that no one in the country illegally will be exempted from enforcement.
“We target criminal aliens, but we’re not going to exempt an entire class of (non)citizens,” Department of Homeland Security spokesman Tyler Houlton told reporters Wednesday.
“All of those in violation of immigration laws may be subject to immigration arrest, detention and, if found removable by final order, removal from the United States,” ICE spokeswoman Sarah Rodriguez added in a statement.
Critics say including people with decades-old final orders of removal as priorities is more about boosting numbers by targeting easily catchable individuals than about public safety threats.
“A final order of removal is absolutely not indicative of a person’s threat to public safety,” said former Obama administration ICE chief and DHS counsel John Sandweg. “You cannot equate convicted criminals with final orders of removal.”
Sandweg said that people with final orders, especially those who are checking in regularly with ICE, are easy to locate and can be immediately deported without much legal recourse. Identifying and locating criminals and gang members takes more investigative work.
There are more than 90,000 people on so-called orders of supervision who check in regularly with ICE officials, according to the agency. And there are more than 1 million who have removal proceedings pending or who have been ordered to leave the country but have not.
As a result of the change in ICE policy, headlines about heart-wrenching cases of deportation separating children from parents or caregivers have been a regular occurrence.
The story of Amer Adi, an Ohio businessman who lived in the US nearly 40 years, and has a wife and four daughters who are all American citizens, drew national media coverage last month. Through a complicated dispute about his first marriage, Adi lost his status and was ordered deported in 2009, but ICE never opted to remove him from the country. His congressman even introduced a bill to protect Adi, saying he was a “pillar” of the community, but last fall, ICE told Adi to prepare to be deported.
At a check-in on January 15, he was taken into custody and not allowed to see his family before being put on a plane back to his home country of Jordan on January 30.
“We shouldn’t spend one penny on low-hanging fruit,” said Sarah Saldana, the most recent director of ICE before Trump’s inauguration. “What we should be spending money is on getting people who are truly a threat to public safety.”

‘ICE fugitives’
The Trump administration has subtly blurred the distinction between criminals and those with final orders of removal, which is a civil, not criminal charge.
ICE has combined “ICE fugitives” — people who have been ordered to leave the country but haven’t yet — with convicted criminals who have pending criminal charges and reinstated final orders of removal, allowing the agency to say 92% of those arrested under Trump had criminal convictions or one of the other factors — when the number with criminal records is closer to 70%.
With an estimated 11 million undocumented immigrants in the US, ICE has typically had resources to arrest and deport only roughly 150,000-250,000 individuals per year — requiring the agency to make choices about who to prioritize to proactively seek out for arrest.
ICE says its mission is carrying out the law and that it “must” deport these individuals.
“The immigration laws of the United States allow an alien to pursue relief from removal; however, once they have exhausted all due process and appeals, they remain subject to a final order of removal from an immigration judge and that order must be carried out,” said Rodriguez. “Failing to carry out final orders of removal would be inconsistent with the entire federal framework of immigration enforcement established by Congress, and undermine the integrity of the US immigration system.”
Administration officials also argue the publicizing of these cases sends a message to would-be border crossers that undocumented immigrants are never safe in the US, even when sympathetic.
“If we don’t fix these loopholes, we’re going to entice others to make that dangerous journey,” ICE Director Tom Homan told the President at a roundtable earlier last month. “So it’s just not about law enforcement, it’s about saving lives.”

Limited resources
But Saldana and other former immigration officials question the prudence of going after that population indiscriminately, saying it diverts resources from more serious security concerns.
If 20 officers are assigned to identify targets with final orders, “those are 20 officers who won’t be out focused on finding gang members or criminals,” said Bo Cooper, a career official who served as general counsel of ICE’s predecessor, the Immigration and Naturalization Service, under Presidents Bill Clinton and George W. Bush.
“When there are a finite amount of resources, choices you make come at the expense of other choices,” Cooper said. “It really is a significant policy choice.”
Sandweg said the Obama administration in 2014 changed its priorities to move away from those with old removal orders in order to give itself more resources to pick up targets from jails, which can be hours away from ICE offices, when they get word that a criminal could be detained on immigration charges.
Sandweg and Cooper noted that other law enforcement agencies also prioritize — the Drug Enforcement Administration doesn’t bother with low-level marijuana possession, but focuses on cartels, Sandweg said — and it’s a part of agency culture.
“Setting enforcement priorities is not micromanagement, that’s what every law enforcement agency does,” agreed Cooper.
As for whether ICE was handcuffed during the Obama era, Saldana said that even in Trump’s executive order, there is room for discretion.
“That’s silly,” Saldana said. “Can you imagine having 11, 12 million in the system? The cost would be extraordinary, so you have to make priorities and work that way. … You can’t sweep everybody into one category. Not everyone is a contributor to society, and not everyone is a criminal.”

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Homan’s shtick about “saving lives” is as preposterous as it is insulting! The “dangers” of seeking to come to the US actually are well known by those making the journey. Whether they are educated or not, they are smart, brave, resourceful people — the kinds of folks we actually could use more of in America.

What Homan and others (including some of the jurists at all levels hearing these cases and getting the results wrong) fail to recognize is that the dangers of remaining in failed states controlled by gangs and corrupt politicos is much greater than the dangers of the journey and the chance of being returned. That being the case, folks have been coming and will continue to come, no matter how nasty and arbitrary we are and no matter how much we mock our Constitution, our own laws on asylum and protection, and the international standards to which we claim adherence.

Too many of those being returned were denied relief under arcane legal standards even when the judges hearing the cases acknowledged that they had established a likelihood of persecution or death upon return. But, they failed to show a “nexus to a protected ground” or “government acquiescence” as those terms are often intentionally restrictively defined by the BIA and some courts.

I know that I had such cases, and I can’t say as anyone ever understood why I was sending them back to possible severe harm or death. Homan and others like him don’t actually have to pronounce such judgments on other human beings face to face as do U.S. Immigration Judges. Neither do the Appellate Immigration Judges sitting in the “BIA Tower” in Falls Church, VA for that matter!

But, the DHS always has discretion as to whether to execute such an order. How on earth does sending productive members of our society and others who have committed no crimes back to be killed, extorted, raped, or forced to join gangs “save lives.” What total hypocrisy!

Indeed, the only “message” we’re actually sending to such folks is that they might as well join the gangs because their lives don’t matter to us. There will be a reckoning for such attitudes for Homan and others some day, even if its only that the judgement of history and the shame of future generations for their lack of empathy, intellectual honesty, common sense, and humanity!

We can diminish ourselves as a nation, but that won‘t stop human migration!

PWS

03-03-18

BIA EXPOSEE: DID THE BIA SUPPRESS EVIDENCE IN MATTER OF J-C-H-F- THAT WOULD HAVE DIRECTLY UNDERMINED THEIR ANTI-IMMIGRANT RULING? — HON. JEFFREY CHASE THINKS SO, & HE HAS THE EVIDENCE TO BACK UP HIS CHARGE!

https://www.jeffreyschase.com/blog/2018/3/2/matter-of-j-c-h-f-an-interesting-omission

Mar 2 Matter of J-C-H-F-: An Interesting Omission

In its decisions involving claims for protection under Article III of the U.N. Convention Against Torture, the BIA defines “government acquiescence” to include “willful blindness” by government officials.

In its recent decision in Matter of J-C-H-F-, the BIA addressed the criteria an immigration judge should use in assessing the reliability of a statement taken from a newly-arrived non-citizens at either an airport or the border. The BIA largely adopted the criteria set out by the U.S. Court of Appeals for the Second Circuit in its 2004 decision in Ramsameachire v. Ashcroft.

Ramsameachire set out four reasonable factors for consideration: (1) whether the record of the interview is verbatim or merely summarizes or paraphrases the respondent’s statements; (2) whether the questions asked were designed to elicit the details of the claim, and whether the interviewer asked follow-up questions to aid the respondent in developing the claim; whether the respondent appears to have been reluctant to reveal information because of prior interrogation or other coercive experiences in his or her home country; and (4) whether the responses to the questions suggest that the respondent did not understand the questions in either English or through the interpreter’s translation.

Both the Second Circuit in Ramsameachire and the BIA in J-C-H-F- applied these criteria to the statement in question in their respective cases; both found the statement reliable, which led to an adverse credibility finding due to discrepancies between the statement and later testimony. But there is a big difference between the two cases. Ramsameachire was decided one year before the U.S. Commission on International Religious Freedom (USCIRF), which is part of the U.S. government, published the first of its two reports (in 2005 and 2016) assessing the expedited removal system in which Bureau of Customs and Border Patrol (CBP) officers encounter arriving asylum seekers. USCIRF conducted field research over several years before issuing each report. As I wrote in an earlier blog post summarizing these reports, USCIRF’s first recommendation to EOIR was to “retrain immigration judges that the interview record created by CBP is not a verbatim transcript of the interview and does not document the individual’s entire asylum claim in detail, and should be weighed accordingly.”

As I already noted in my prior post, USCIRF described its findings of the airport interview process as “alarming.” It found that the reports were neither verbatim nor reliable; that they sometimes contained answers to questions that were never asked, that they indicate that information was conveyed when in fact it was not. USCIRF found that although the statements indicated that they were read back, they usually were not, and that a CBP officer explained that the respondent’s initials on each page merely indicated that he or she received a copy of each page, and not that the page was read back to the respondent and approved as to accuracy.

The Second Circuit in Ramsameachire would have no way of knowing any of this, and therefore reasonably considered the statement to be a verbatim transcript which had been read back to the respondent, whose initials on each page were deemed to indicate approval of the accuracy of its contents. But the BIA in 2018 could claim no such ignorance. USCIRF had specifically discussed its reports at a plenary session of the 2016 Immigration Judge Legal Training Conference in Washington D.C., where the report’s co-author told the audience that the statements were not verbatim transcripts in spite of their appearance to the contrary. As moderator of the panel, I pointed out the importance of this report in adjudicating asylum claims. The person in charge of BIA legal training at the time was present for the panel, and in fact, had the same panelists from USCIRF reprise its presentation two months later at the BIA for its Board Members and staff attorneys. I personally informed both the chair and vice-chair of the BIA of the report and its findings, and recommended that they order a hard copy of the report. The report was even posted on EOIR’s Virtual Law Library, which at the time was a component of the BIA, under the supervision of the vice-chair (along with training and publication). I can say this with authority, because I was the Senior Legal Advisor at the BIA in charge of the library, and I reported directly to the BIA vice-chair.

In spite of all of the above, J-C-H-F- simply treats the statement as if it is a verbatim transcript, and noted that the pages of the statement were initialed by the respondent; in summary, the Board panel acted as if the two USCIRF reports did not exist. Very interestingly, sometime in 2017, the USCIRF report was removed from the EOIR Virtual Law Library. Based on my experience overseeing the library, I can’t imagine any way this could have happened unless it was at the request of the BIA vice-chair. But why would he have required the report’s removal?

If any reader has information as to when J-C-H-F- was first considered for possible precedent status by the BIA, please let me know via the contact link below.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

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I can largely corroborate what Jeffrey is saying. I, of course, have been gone from “The Tower” for 15 years.

But I know 1) that BIA judges and staff were present during the USCIRF sessions at the Annual Immigration Judges Conference (in fact, I believe it was “required training” on religious asylum claims), 2) as an Immigration Judge I had access to the Annual Reports of the USCIRF and used them in my adjudications; 3) I was well aware, and believe that any competent EOIR judge would also have been aware, that airport statements and statements taken by the Border Patrol were a) not verbatim, and b) often unreliable for a host of reasons as pointed out by the USCIRF.

I am certainly as conscious as anyone of the precarious positions of BIA Appellate Immigration Judges as administrative judges working for the Attorney General. I’m also very well aware of the human desire for self-preservation, job preservation, and institutional survival, all of which are put in jeopardy these days by siding with immigrants against the DHS in the “Age of Trump & Sessions,” where “the only good migrant is a deported migrant.”

But, the job of a BIA Appellate Immigration Judge, or indeed any Immigration Judge, is not about any of these things. It’s about “guaranteeing fairness and due process for all.”

That means insuring that migrants’ rights, including of course, their precious right to Due Process under our Constitution, are fully protected. Further, an EOIR judge must insure that the generous standards for asylum set forth by the Supreme Court in Cardoza-Fonseca and by the BIA itself in Matter of Mogharrabi are fully realized, not just “rote cited.”

If standing up for migrants’ rights turns out to be job threatening or institutionally threatening, then so be it. Lives are at stake here, not just senior level US Government careers, as important as I realize those can be!

Unfortunately, I think today’s BIA has become more or less of a “shill” for the enforcement heavy views of Jeff Sessions, DHS, the Office of Immigration Litigation, and the Trump Administration in general.

What good is “required training” in adjudicating asylum requests based on religion if the BIA and Immigration Judges merely ignore what is presented? It isn’t like DHS or CBP had some “counterpresentation” that showed why their statements were reliable.

Indeed, I had very few DHS Assistant Chief Counsel seriously contest the potential reliability issues with statements taken at the border. And never in my 13 years on the bench did the DHS offer to bring in a Border Patrol Agent to testify as to the reliability or the process by which these statements are taken.

I can’t imagine any other court giving border statements the weight accorded by the BIA once the problems set forth in the USCIRF Report were placed in the record. And, I’m not aware that the DHS has ever set forth any rebuttal to the USCIRF report or made any serious attempt to remedy these glaring defects.

We need an independent Article I United States Immigration Court that guarantees Due Process and gives migrants a “fair shake.” Part of that must be an Appellate Division that functions like a true appellate court and holds the Government and the DHS fully accountable for complying with the law.

PWS

03-03-18

LAUREN MARKHAM IN THE NEW REPUBLIC: Why “Trumpism” Ultimately Will Fail – Those Ignorant of Human History & Unwilling To Learn From It Will Just Keep Repeating The Same Expensive Mistakes – “One tragic lesson of the extra-continentales is that no set of governments, however callous, can solve the migration crisis by closing its doors to refugees seeking shelter. . . . The doors will not hold, and neither will the fences. You can build a wall, but it will not work. Desperate people find a way.”

https://newrepublic.com/article/146919/this-route-doesnt-exist-map

“How efforts to block refugees and asylum-seekers from Europe have only made the global migration crisis more complex and harrowing

By LAUREN MARKHAM

February 26, 2018

By 7 p.m., the sun had set and groups of young men had begun to gather inside a small, nameless restaurant on a narrow street in Tapachula, Mexico. Anywhere else in the city, a hub of transit and commerce about ten miles north of the Guatemalan border, there would be no mistaking that you were in Latin America: The open colonial plaza, with its splaying palms and marimba players, men with megaphones announcing Jesus, and women hawking woven trinkets and small bags of cut fruit suggested as much. But inside the restaurant, the atmosphere was markedly different. The patrons hailed not from Mexico or points due south but from other far-flung and unexpected corners of the globe—India, Pakistan, Eritrea, Cameroon, Sierra Leone, Congo. Men, and all of the diners were men, gathered around tables, eating not Mexican or Central American fare but steaming plates of beef curry, yellow lentils, and blistered rounds of chapati. The restaurant’s proprietor, a stern, stocky Bangladeshi man in his thirties named Sadek, circulated among the diners. He stopped at one table of South Asian men and spoke to them in Hindi about how much they owed him for the items he’d collected on their tab. The waitress, patiently taking orders and maneuvering among the crowds of men, was the only Spanish speaker in the room.

Outside, dozens of other such men, travelers from around the world, mingled on the avenue. They reclined against the walls of restaurants and smoked cigarettes on the street-side balconies of cheap hotels. They’d all recently crossed into the country from Guatemala, and most had, until recently, been held in Tapachula’s migrant detention center, Siglo XXI. Just released, they had congregated in this packed migrants’ quarter as they prepared to continue their journeys out of Mexico and into the United States. They had traveled a great distance already: a transatlantic journey by airplane or ship to Brazil; by car, bus, or on foot to Peru, Ecuador, and Colombia; through Panama, Costa Rica, and Nicaragua; on to Honduras, Guatemala, and into Mexico. Again and again, I heard their itinerary repeated in an almost metronomic cadence, each country a link in a daunting, dangerous chain. They’d crossed oceans and continents; slogged through jungles and city slums; braved detention centers and robberies; and they were now, after many months, or even longer, tantalizingly close to their final goal of the United States and refugee status.

Police in Tapachula, a Mexican city used as a waypoint for migrants known as *extra-continentales*, patrol past a Cameroonian traveler (in a striped shirt).

They are the extreme outliers of a global migration crisis of enormous scale. Today, more than 65 million people around the world have been forced from their homes—a higher number than ever recorded, as people flee war, political upheaval, extreme poverty, natural disasters, and the impacts of climate change. Since 2014, nearly 2 million migrants have crossed into Europe by sea, typically landing in Italy or Greece. They hail from dozens of countries, but most are from Syria, Afghanistan, Iraq, and Nigeria—countries struggling with war, political repression, climate change, and endemic poverty.

Their passage to supposed safety, which takes them across Libya and the Sinai, as well as the Mediterranean, has become increasingly perilous. According to the United Nations High Commissioner for Refugees, nearly 150,000 people crossed the Mediterranean in 2017. More than 3,000 are believed to have drowned. Stories of detention in Libya, as well as physical and sexual abuse, are commonplace among those who manage to make it to Europe. A recent CNN report depicted a Libyan slave auction, where people were being sold for as little as $400. Even the lucky ones who wash up on Europe’s shores may end up stuck for years in transit camps and detention centers in the south of the continent, in some cases only in the end to be deported. In 2013, in an effort to curb migration and ease the burden of migrants within its borders, the European Union began ramping up deportations. In 2016, nearly 500,000 people were deported from Europe.

Globally, more than 65 million people have currently been forced from their homes—a higher number than ever recorded.

While the global drivers of migration have not subsided—devastation in Syria and Afghanistan, political repression in parts of sub-Saharan Africa—200,000 fewer migrants attempted to cross into Europe in 2017 than the year before. In response to the migrant crisis, European countries have sent strong messages that newcomers are no longer welcome; they’ve built fences to stop refugees from crossing their borders and elected far-right politicians with staunchly anti-immigrant messages. Meanwhile, most asylum cases are stalled in overburdened court systems, with slim prospects for any near-term resolution, which leaves many migrants stuck in the wicked limbo of a squalid, under-resourced refugee camp or austere detention facility. Today, European authorities have stiffened their resistance not only to new arrivals, but to the hundreds of thousands of asylum-seekers who arrived years before and remain in an eerie liminal zone: forbidden to live or work freely in Europe and unwilling, or often unable, to go home.

Because of the high risks of crossing and the low odds of being permitted to stay, more and more would-be asylum-seekers are now forgoing Europe, choosing instead to chance the journey through the Americas that brings them to Sadek’s restaurant in Tapachula. Each year, thousands of migrants from the Middle East, Africa, and Asia make their way to South America and then move northward, bound for the United States—and their numbers have been increasing steadily. It’s impossible to know how many migrants from outside the Americas begin the journey and do not make it to the United States, or how many make it to the country and slip through undetected. But the number of “irregular migrants”—they’re called extra-continentales in Tapachula—apprehended on the U.S. side of the border with Mexico has tripled since 2010.

They remain a tiny fraction of the hundreds of thousands of Mexicans and Central Americans crossing into the United States. But it is a hastening trickle that may well become a flood. “These ‘extra-continental’ migrants will probably increase,” said Roeland De Wilde, chief of mission for the International Organization for Migrationin Costa Rica, “given the increased difficulties in entering Europe, relative ease of entry in some South American countries, and smugglers’ increased organization across continents.”

A migrant from Bangladesh, Sadek (in a red shirt) is part restaurateur, part migratory middleman. He can help a traveler with a good meal—or a good travel agent or immigration attorney.

One tragic lesson of the extra-continentales is that no set of governments, however callous, can solve the migration crisis by closing its doors to refugees seeking shelter. All Europe has done is redirect the flow of vulnerable humanity, fostering the development of a global superhighway to move people over this great distance. The doors will not hold, and neither will the fences. You can build a wall, but it will not work. Desperate people find a way.

“Cette route,” a French-speaking man from Cameroon told me, one sweltering afternoon in Tapachula on the breezeless balcony of a hotel frequented by irregular migrants, “n’existe pas sur le map.” This route doesn’t exist on the map.”

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

Read Lauren’s much longer complete article at the above link. It’s one of the most incisive treatments of the worldwide migration phenomenon that I have seen recently. I highly recommend it.

Thanks to dedicated “Courtsider” Roxanne Lea Fantl of Richmond, VA for sending this item my way!

Shortly after I arrived at the Arlington Immigration Court, one of my wonderful colleagues told me “Paul, desperate people do desperate things. Don’t take it personally, and don’t blame them. We just do our jobs, as best we can under the circumstances.” Good advice, to be sure!

We can diminish ourselves as a nation, but that won’t stop human migration!

PWS

03-02-18

AMERICA THE UGLY: WHY ARE WE ALLOWING OUR GOVERNMENT TO ABUSE THE HUMAN RIGHTS OF FAMILIES & CHILDREN? — “This policy is tantamount to state-sponsored traumatization.”

https://www.nytimes.com/2018/02/28/opinion/immigrant-children-deportation-parents.html

DORA GALACATOS, ALAN SHAPIRO and BRETT STARK in the NY Times:

“The Department of Homeland Security may soon formalize the abhorrent practice of detaining the children of asylum-seekers separately from their parents. Immigrant families apprehended at the southwest border already endure a deeply flawed system in which they can be detained indefinitely. In this immigration system, detainees too often lack adequate access to counsel. But to unnecessarily tear apart families who cross the border to start a better life is immoral.

Sadly, such separations are already happening. The Florence Project in Arizona documented 155 such cases by October and other immigrant advocacy organizations report that children are being taken away from their parents. If the secretary orders this practice to be made standard procedure, thousands of families could face unnecessary separation.

The Trump administration’s goal is to strong-arm families into accepting deportation to get their children back. Kirstjen Nielsen, the secretary of homeland security, admitted this when she told the Senate on Jan. 16 that separating families may “discourage parents” from seeking refuge in America.

But the increasing informal use of family separation has not proved to be a deterrent. Last year, the number of family apprehensions at the southwestern border skyrocketed from 1,118 families in April to 8,120 in December.

Parents will continue to flee violence to protect their children and themselves. It is reprehensible to punish them for that basic human impulse. It is also despicable that the government would use children as bargaining chips. This policy is tantamount to state-sponsored traumatization.

Those of us who have seen the sites where families are detained and work directly with children and families who have gone through the system know what’s at stake.

The children we work with call the Border Patrol processing stations for migrants stopped at the border “iceboxes” (hieleras) and “dog kennels” (perreras). “I was wet from crossing the river and it was so cold I thought I would die,” one child said.

Another told us: “The lights were kept on day and night. I became disoriented and didn’t know how long I had been there.” A third said: “I was separated from my older sister. She is the closest person in my life. I couldn’t stop crying until I saw her again a few days later.”

In our work we have heard countless stories about detention. But the shock of bearing witness to them is hard to put into words. In McAllen, Tex., you enter a nondescript warehouse, the color of the dry barren landscape that surrounds it. It could be storage for just about anything, but is in actuality a cavernous, cold space holding hundreds upon hundreds of mostly women and children.

Chain-link fencing divides the harshly illuminated space into pens, one for boys, a second for girls and a third for their mothers and infant siblings. The pens are unusually quiet except for the crinkling of silver Mylar blankets. This is where family separation begins, as does the nightmare for parents and children.

The parents whose sons and daughters have been taken from them are given two options: either agree to return home with their children — or endure having those children sent on to shelters run by the Health and Human Services Department while they themselves languish in detention centers scattered around the country.

This country’s medical and mental health organizations have rightly recognized the trauma of this practice. The American Academy of Pediatrics has condemned immigrant family separation, and family detention overall, as “harsh and counterproductive.” The American Medical Association has denounced family separation as causing “unnecessary distress, depression and anxiety.”

Studies overwhelmingly demonstrate the irreparable harm to children caused by separation from their parents. A parent or caregiver’s role is to mitigate stress. Family separation robs children of that buffer and can create toxic stress, which can damage brain development and lead to chronic conditions like depression, post-traumatic stress disorder and heart disease. For that reason, more than 200 child welfare, juvenile justice and child development organizations signed a letterdemanding that the Trump administration abandon this ill-conceived policy.

Family separation is also unjustifiable legally, as “family unity” is central to our immigration laws and our longstanding policy of reuniting citizens and permanent residents with their relatives.

More fundamentally, family separation is anathema to basic decency and human rights. For our government to essentially hold immigrant children as hostages in exchange for the “ransom” of their parents’ deportation is simply despicable.

It is every parent’s nightmare to have a child snatched away. To adopt this as standard procedure to facilitate deportations is inhumane and does nothing to make Americans safer. This country, and Secretary Nielsen, must reject family separation.

LEGAL AID JUSTICE CENTER OF VIRGINIA HUGE WIN – USD Judge Brinkema Certifies Class & Orders Bond Hearings For Individuals In “Withholding Only Proceedings” — Rogelio Amilcar Cabrera Diaz v. Hott — Get Links To All The Essential Court Docs Here!

https://www.justice4all.org/2018/02/26/case-establishes-right-to-bond-hearings/

Case Establishes Right to Bond Hearings

Posted February 26, 2018 by Tim Wallace

FOR IMMEDIATE RELEASE

Legal Aid Justice Center has won an important first-in-the-nation class action case in federal court in Alexandria, establishing the right to bond hearings for a class of detained immigrants whom the government is holding in long-term no-bond detention.

When immigrants are deported to countries where human rights violations are rampant, they often find themselves subject to persecution, torture, or even death threats. And since the U.S. government almost never gives a visa to someone who has already been deported, these individuals may find themselves with no option other than to try to return to the United States and cross the border illegally to seek a form of legal protection from persecution known as “withholding of removal.”

Previously, ICE and the immigration courts refused to grant bond to these individuals, holding them in prison-like conditions in immigration detention centers for months if not years while they fought out their cases. Legal Aid Justice Center filed a lawsuit last year on behalf of five immigrants held in this prolonged no-bond detention, and won release for two of them, but the government refused to apply the decision more broadly to other similarly situated immigrants held in detention.

We then filed a first-in-the-nation class action, seeking access to bond hearings for all immigrants detained in Virginia who fall into this category. On February 26, 2018, federal district judge Leonie M. Brinkema granted our motions in full, giving our clients and the class members all of the relief we asked for. We understand that there are about 50 immigrants currently detained at the Farmville detention center who meet this description, with more being arrested every week. Now, they will have the chance to pay a bond and leave detention, reunite with their families, and resume normal lives while they fight their cases for protection.

Special thanks to our pro bono co-counsel at Mayer Brown LLP, Murray Osorio LLP, Law Office of James Reyes, and Blessinger Legal PLLC – we couldn’t possibly do it without you!

The judge’s opinion can be found here: Memorandum Opinion (PDF)

The judge’s order can be found here: Order (PDF)

The opinion applies to all immigrants who are in pending withholding-only proceedings, and “as of December 7, 2017 or at any time thereafter are detained within the Commonwealth of Virginia under the authority of [ICE].” The government has been ordered to notify all class members by March 13, 2018, and to provide them with a bond hearing (or a Joseph hearing, if appropriate) by March 28, 2018.

We will be monitoring compliance with this opinion, and want to hear from Virginia attorneys who represent a class member. If you represent a class member, or if you have questions as to whether your client might be a class member, please e-mail LAJC attorney Rachel McFarland at rmcfarland@justice4all.org to let us know.

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“Super Congrats” to Simon Y. Sandoval-Moshenberg—Director, Immigrant Advocacy Program & his team of Firms and pro bono attorneys for making this happy.

I am particularly delighted that one of my “star” former Georgetown Law RLP students, Rachel McFarland, has been involved in this case. Rachel is a “charter member” of the “New Due Process Army!”

PWS

02-28-18

CALLING ALL FORMER IMMIGRATION JUDGES & BIA APPELLATE JUDGES: DUE PROCESS FOR CHILDREN IS ON THE LINE: Join In An Amicus Brief Supporting A Right To Counsel For Children In Immigration Court — Motion For Rehearing En Banc in C.J.L.G. v. Sessions! —Judges Gossart, Klein, Rosenberg, & I Are Already On Board! — Please Join Us!

Hi Judges Klein, Schmidt, Rosenberg, and Gossart:

Hope all of you are well. Thanks so much for your help with an amicus brief in support of rehearing en banc in CJLG v. Sessions, our children’s right to appointed counsel case. I’m copying in Buzz Frahn and his team from Simpson Thacher, who have agreed to draft the amicus brief on your behalves. We’ve given Buzz the previous briefs submitted in JEFM, and he and his team are getting started.

I think all of you can take it from here. It would be great if we could get your help in reaching out to other former IJs or BIA members who may be interested in participating as amici in our case.

Please let me know if you have any questions, or if I can do anything else to help. We’ll be in touch with the Simpson Thacher folks regarding some issues that might be worth highlighting in the amicus, and I’m sure they’d welcome feedback from all of you as well. Thanks again and have a great weekend!

Stephen

Stephen B. Kang
Pronouns: he/him/his
Detention Attorney
ACLU Immigrants’ Rights Project
39 Drumm Street, San Francisco, CA 94111
415.343.0783 | skang@aclu.org
*********************

In C.J.L.G. v. Sessions, a 9th Circuit 3-Judge Panel found that: 1) the child respondent was denied due process at his Immigration Court hearing; 2) he suffered past persecution; 3) but there was no “prejudice” because he couldn’t establish “nexus.” Therefore, the panel rejected his claim that he had a right to appointed counsel.

The “no prejudice” finding is basically ludicrous! “Nexus” is such a complex and convoluted legal concept that judges at all levels get it wrong with regularity. How do we know that this child couldn’t show “nexus” when he and his mother didn’t have any idea of the legal and evidentiary standards they were required to meet?

On Friday, I attended a FBA Immigration/Asylum program at NYU Law. It was clear from the outstanding panel on Northern Triangle asylum that claims very similar, if not identical, to CJLG’s are being granted in many Immigration Courts.

But, it requires many hours of client interviews, extensive trial preparation, and the knowledge and ability to present claims often under alternative legal theories. No unrepresented child has a fair chance to make such a winning presentation on asylum or Convention Against Torture Withholding in Immigration Court, even though there are “life or death” stakes.

Here’s a link to my previous blog on C.J.L.G.:

https://wp.me/p8eeJm-22V

We would love to have your support in speaking out against this injustice and systemic denial of due process to our most vulnerable.

Please contact Judges Gossart, Klein, Rosenberg, or me if you wish to join our effort.

Best wishes and many thanks for considering this request.

PWS

02-25-18

BIGGIE ON GANG ASYLUM: PUBLISHED 4TH CIR. BLASTS BIA’S BOGUS APPROACH TO NEXUS IN GANG CASES — Court Eviscerates BIA’s Disingenuous Approach To Nexus In Matter of L-E-A- (Without Citing It!) – SALGADO-SOSA V. SESSIONS

4thGangsNexusSalgado-Sosa

Salgado-Sosa v. Sessions, 4th Cir., 04-13-18, Published

PANEL: GREGORY, Chief Judge, and FLOYD and HARRIS, Circuit Judges.

OPINION BY: JUDGE PAMELA HARRIS

SUMMARY OF HOLDING (From Court’s Opinion):

“Reynaldo Salgado-Sosa, a native and citizen of Honduras, seeks asylum, withholding of removal, and protection under the Convention Against Torture. If he is returned to Honduras, he fears, he will face persecution at the hands of the gang MS-13, which has repeatedly attacked his family for resisting extortion demands.

The agency proceedings focused on whether Salgado-Sosa could show, for purposes of both his asylum and withholding of removal claims, a nexus between MS-13’s threats and membership in a cognizable “particular social group” – here, Salgado-Sosa’s family. The Board of Immigration Appeals found that Salgado-Sosa could not establish the requisite nexus, and denied withholding of removal on that ground. The Board separately found that Salgado-Sosa’s asylum application was untimely, and that there was insufficient evidence to justify protection under the Convention Against Torture.

We conclude that the Board erred in holding that Salgado-Sosa did not meet the nexus requirement. The record compels the conclusion that at least one central reason for Salgado-Sosa’s persecution is membership in his family, a protected social group under the Immigration and Nationality Act. Accordingly, we vacate the denial of withholding of removal, and remand for further proceedings on that claim. On the asylum claim, we separately remand for consideration of whether our recent decision in Zambrano v. Sessions, 878 F.3d 84 (4th Cir. 2017), affects Salgado-Sosa’s argument that a statutory “changed circumstances” exception allows consideration of his untimely application.”

KEY QUOTE FROM OPINION:

“For three reasons, we are “compelled to conclude,” see Hernandez-Avalos, 784 F.3d at 948, that the IJ and the Board erred in finding that Salgado-Sosa has not shown that his kinship ties are “at least one central reason” for the harm he fears. First, the record manifestly establishes that MS-13 threatened Salgado-Sosa “on account of” his connection to his stepfather and to his family. Salgado-Sosa testified, for instance, that MS-13 attacked him because of his stepfather Merez-Merlo’s conflict with the gang, not his own. Merez-Merlo similarly testified that his refusal to give MS-13 “what they wanted, which was the war tax,” led the gang to repeatedly threaten to kill his wife and son. J.A. 236; see J.A. 234, 315–16. Other evidence also corroborates the centrality of family ties. For example, the family’s long-time neighbor submitted an affidavit averring

2 As before the IJ and Board, Salgado-Sosa’s argument in this court emphasizes evidence that he and his family were targeted because of his stepfather’s testimony against MS-13. But both on appeal and before the agency, Salgado-Sosa also has argued more generally that he fears persecution based on his membership in a “particular social[] group, as defined by Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011).” Appellant’s Br. at 5; see also A.R. 101, 478–79. And our holding in Crespin-Valladares was not limited to family members of witnesses, but instead established that family membership itself is a “prototypical example of a [cognizable] particular social group.” 632 F.3d at 125 (internal quotation marks omitted). The IJ and BIA accordingly considered not only whether Salgado-Sosa was persecuted for being a family member of a witness, but also whether he was persecuted because of his kinship ties generally. See A.R. 126 (finding that Salgado-Sosa “has not demonstrated” that any persecution “would be on account of a statutorily protected ground, be that family group membership, as witnesses, or any other potential protected ground”) (emphasis added). Following that lead, we also consider whether the evidence shows that Salgado-Sosa was threatened on account of his familial ties, regardless of the role played by his stepfather’s testimony.

10

that “the reason why the gang members wants [sic] to hurt [Salgado-Sosa]” is that he “defended his stepfather from the gang member[s]” when they assaulted the family. J.A. 537 (emphasis added). And the IJ, as noted above, did not doubt the credibility of any of this evidence.

Second, that Salgado-Sosa’s anticipated harm is on account of membership in his family follows from the IJ’s own factual findings, adopted by the BIA. The IJ herself determined that the central reasons for Salgado-Sosa’s feared persecution are his stepfather’s refusal to pay the gang and revenge on the family for resisting MS-13’s extortion. See J.A. 5–6, 126–27. On a proper reading of the nexus requirement and our cases applying it, that finding compels the conclusion that Salgado-Sosa’s kinship ties are a central reason for the harm he fears.

Our decision in Hernandez-Avalos v. Lynch is instructive. There, the petitioner applied for asylum after gang members in El Salvador threatened her for refusing to allow her son to join the gang. 784 F.3d at 947. The BIA rejected her assertion that the persecution was “on account of” familial ties, concluding that the petitioner “was not threatened because of her relationship to her son (i.e. family), but rather because she would not consent to her son engaging in a criminal activity.” Id. at 949. We found this distinction “meaningless” and “unreasonable” given that “[petitioner’s] relationship to her son is why she, and not another person, was threatened” by the gang. Id. at 950 (emphasis added). Thus, because the petitioner’s “family connection to her son” was at least one of “multiple central reasons” for the gang’s threats, we found the nexus

requirement satisfied, and rejected the BIA’s contrary determination as resting on “an 11

excessively narrow reading of the requirement that persecution be undertaken ‘on account of membership in a nuclear family.’” Id. at 949–50.

The same logic applies here. There is no meaningful distinction between whether Salgado-Sosa was threatened because of his connection to his stepfather, and whether Salgado-Sosa was threatened because MS-13 sought revenge on him for an act committed by his stepfather. See Hernandez-Avalos, 784 F.3d at 950. However characterized, Salgado-Sosa’s relationship to his stepfather (and to his family) is indisputably “why [he], and not another person, was threatened” by MS-13. See id. Thus, the IJ and BIA erred by focusing narrowly on the “immediate trigger” for MS-13’s assaults – greed or revenge – at the expense of Salgado-Sosa’s relationship to his stepfather and family, which were the very relationships that prompted the asserted persecution. See Oliva v. Lynch, 807 F.3d 53, 60 (4th Cir. 2015) (holding that the BIA drew “too fine a distinction” between the “immediate trigger” for persecution – breaking the rules imposed on former gang members – and what ultimately led to persecution – protected status as a former gang member). On the IJ’s own unchallenged account of the facts – that Salgado-Sosa’s fear of persecution arises from the actions of his stepfather and his family – the only reasonable conclusion is that family membership is “at least one central reason for [his] persecution.” See Hernandez-Avalos, 784 F.3d at 950.

Third and finally, the BIA’s decision improperly focused on whether Salgado- Sosa’s family was persecuted on account of a protected ground, rather than on whether Salgado-Sosa was persecuted because of a protected ground – here, his relationship to his

family. The critical fact, for the BIA, was that the motive for the attacks on Salgado- 12

Sosa’s family was “financial gain or personal vendettas,” neither of which is itself a protected ground under the INA. J.A. 6. But as we have explained before, it does not follow that if Salgado-Sosa’s family members were not targeted based on some protected ground, then Salgado-Sosa could not have been targeted based on his ties to his family. Cordova v. Holder, 759 F.3d 332, 339 (4th Cir. 2014) (rejecting argument that feared persecution is not on account of membership in family if attacks on family are not related to protected ground). Instead, “[t]he correct analysis focuses on [Salgado-Sosa himself] as the applicant, and asks whether [he] was targeted because of [his] membership in the social group consisting of [his] immediate family.” Villatoro v. Sessions, 680 F. App’x 212, 221 (4th Cir. 2017). And once the right question is asked, the record admits of only one answer: whatever MS-13’s motives for targeting Salgado-Sosa’s family, Salgado-Sosa himself was targeted because of his membership in that family.

For all these reasons, it is clear that Salgado-Sosa has shown the required nexus between anticipated persecution and membership in a particular social group consisting of his family. Specifically, Salgado-Sosa has demonstrated that “at least one central reason” for the harm he faces is his connection to his stepfather and family. See 8 U.S.C. §1158(b)(1)(B)(i). Because the IJ and BIA relied exclusively on an erroneous determination as to nexus in denying withholding of removal, we vacate that denial and remand for further proceedings regarding Salgado-Sosa’s application.”

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

First, congrats to Alfred Lincoln (“Rob”) Robertson, Jr., ROBERTSON LAW OFFICE, PLLC, Alexandria, Virginia, who successfully represented Mr. Salgado-Sosa before the Fourth Circuit. Rob was a “regular” in the Arlington Immigration Court, particularly on my always challenging detained docket. One of the things I liked about him is that he was willing to take “tough cases” — ones where the respondent had a decent argument but by no means a “slam dunk winner.” He also practiced before the local Virginia criminal courts, so was familiar with what “really happens” in criminal court as opposed to the “Alice in Wonderland Version” often presented in Immigration Court.

Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) lives! One of my all-time favorite cases, because I was the Immigration Judge incorrectly reversed by the BIA on an asylum grant. I was right on all sorts of things, and the BIA was wrong! But, hey, who remembers things like that?

This decision is good news for justice and due process for asylum seekers. It spells some bad news for the BIA’s highly contrived decision in Matter of L-E-A-, 27 I&n 40 (BIA 2017). There, the BIA looked beyond primary causation (the “but for” rule) of a family-based PSG to find a secondary cause, “criminal extortion” that did not relate to the protected ground. In other words, the BIA encouraged IJs to look for any way possible to twist facts to deny family-based PSG asylum claims. Indeed, the only lame example that the BIA could cite that might qualify under their bizarre analysis was the long-dead Romanov Family of Russia.

Both Judge Jeffrey Chase and I ripped the BIA’s anti-asylum, anti-Due Process machinations in previous blogs:

http://immigrationcourtside.com/2017/05/25/new-precedent-family-is-a-psg-but-beware-of-nexus-matter-of-l-e-a-27-in-dec-40-bia-2017-read-my-alternative-analysis/

http://immigrationcourtside.com/2017/06/03/introducing-new-commentator-hon-jeffrey-chase-matter-of-l-e-a-the-bias-missed-chance-original-for-immigrationcourtside/

What if EOIR concentrated on quality, Due Process, and fairness for asylum seekers, rather than merely looking for ways to deport more migrants (whether legally correct or not) in accordance with Sessions’s anti-migrant agenda? We need an independent Article I U.S. Immigration Court with an Appellate Division that acts like a U.S. Court of Appeals, not an extension of the Administration political agendas and DHS enforcement!

PWS

02-21-18

LA TIMES: NEW DHS ENFORCEMENT POLICIES SEEK TO PUNISH CHILDREN AND PARENTS SEEKING ASYLUM – Really, Is This What We’ve Become As a Nation In The “Age of Trump?”

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=371cd9b8-56d5-4cca-a96c-53e177ee2201

Molly Hennessy-Fiske reports for the LA Times

EL PASO — Thousands of parents who crossed illegally into the U.S. in recent years have been held with their children at immigration detention centers. But the case of a Brazilian woman and her son illustrates what migrant advocates call a harsher approach to immigration enforcement that aims to separate parents and children.

She’s being held in Texas, while her son was taken to a shelter in Illinois. The unspoken goal, advocates say, is to discourage parents from crossing illegally or attempting to request asylum.

The Brazilian mother — who asked to be identified only as Jocelyn because she was fleeing domestic violence — entered the U.S. in August with her 14-year-old son, who she said was being threatened by gangs. They hoped to apply for asylum.

Migrant families like Jocelyn’s are usually processed by immigration courts, an administrative process. Such families are detained together or released with notices to appear at later court proceedings. President Trump promised to end the practice, dismissing it as “catch and release.”

Historically, most border crossers were sent back to their home countries, but the Trump administration has threatened to prosecute some migrant parents because entering the country illegally is a federal crime. The first offense is a misdemeanor, with a maximum sentence of six months. Those caught a second time face a felony charge with a maximum sentence of up to 20 years, depending on their criminal record. Once a case becomes a criminal matter, parents and children are separated.

According to public defenders and immigrant advocates, more and more immigrant families who come to the southern border seeking asylum are being charged in federal criminal courts from El Paso to Arizona. Jocelyn was charged with a misdemeanor, and her son was sent to a shelter in Chicago. Comprehensive statistics do not exist, but activists and attorneys say anecdotal evidence suggests the practice is spreading.

“There’s not supposed to be blanket detention of people seeking asylum, but in reality, that’s what’s happening” in El Paso, said Dylan Corbett, director of the Hope Border Institute, a nonprofit social justice group. “We’re still in this limbo in our sector and across the border: What’s going on? What are the new policies?”

Last week, 75 congressional Democrats led by Rep. Lucille Roybal-Allard (D-Downey) sent a letter to the secretary of Homeland Security expressing outrage at increased family separations and demanding officials clarify their policies within two weeks.

“We are gravely concerned that these practices are expanding and worsening, further traumatizing families and impeding access to a fair process for seeking asylum,” they wrote.

Homeland Security won’t say it is targeting families but does say it is making procedural and policy changes to deter illegal immigration.

“The administration is committed to using all legal tools at its disposal to secure our nation’s borders,” said Tyler Houlton, a Homeland Security spokesman.

Jocelyn said she fled Brazil to escape an abusive husband. During a recent meeting at the El Paso detention center where she is being held, she lifted the sleeve of her white uniform to show scars on her arm that she said came from beatings by her husband, an armed security guard who refused to grant her a divorce.

She and her son flew to Mexico on Aug. 24, crossed the border two days later, turned themselves in to Border Patrol near El Paso and were told they would be separated.

“I didn’t know where they were taking him,” she said of her son. “They didn’t tell me. I asked many times. They just said ‘Don’t worry.’ ”

Elsewhere on the border, including Texas’ Rio Grande Valley to the east where most migrants cross illegally, many parents and children are still released together with notices to appear in immigration court.

To opponents of illegal immigration, the practice of charging migrants with criminal offenses is a good thing. Andrew Arthur, a former immigration judge now serving as a resident fellow at the conservative Washington-based Center for Immigration Studies, said criminal charges are a deterrent.

“The reason the children are there to begin with is this belief [among immigrants] that a parent with a child will not be detained,” Arthur said. He added that exposing children to smugglers who could abuse and kidnap them “borders frankly on child abuse.”

Last April, Atty. Gen. Jeff Sessions issued guidance to U.S. attorneys urging more aggressive prosecution of those illegally reentering the country. As the number of migrant families crossing illegally increased last summer, parents were detained by U.S. marshals, but their children were reclassified as unaccompanied minors and placed at shelters across the country by the Office of Refugee Resettlement.

Migrant advocates sued in federal court, arguing that when asylum seekers declare a fear of returning to their home country, federal law dictates that they be referred to an asylum officer, even if they crossed the border illegally, and their cases considered by immigration judges.

In October, El Paso immigrant advocates asked Border Patrol officials whether they were separating migrant parents from their children.

“They volunteered yes, we’re doing family separation,” Corbett recalled, adding that one agent “said it was standard practice locally here in the sector to separate all children 10 years and older from their family. We were all shocked.”

Afterward, Border Patrol attorney Lisa Donaldson emailed those who had attended the meeting, insisting that the “Border Patrol does not have a blanket policy requiring the separation of family units” and that any increase in separations “is due primarily to the increase in prosecutions of immigration-related crimes.”

Daryl Fields, a spokesman for the U.S. attorney’s office in western Texas, which files federal criminal charges, said each case is considered individually and that “we do not target individuals for prosecution based on their parental status.”

Federal public defenders said that criminally charging asylum seekers not only violates international treaties, it encourages migrants to plead guilty so they can end their case quickly, get deported and try to reunite with their children.

“It impacts the lawfulness or constitutionality of their guilty plea,” said Maureen Franco, the federal public defender for the western district of Texas. “They’re under the misconception ‘The quicker I get my case over with, the quicker I’ll get my children back.’ Any lawyer worth their salt will tell them it’s not like that.”

Franco’s office has asked a federal court to dismiss improper entry charges against four Central American parents and a grandmother whose children were removed after the adults were detained. A judge ruled in favor of the government Jan. 5. Federal public defenders are appealing.

Immigration attorney Bridget Cambria has handled 15 family separation cases, including several mothers charged and separated from their children in El Paso.

“There’s huge questions about whether it’s legal when they’re seeking asylum. They’re using the federal statutes as a reason to take their child,” Cambria said.

It’s not clear how many migrant parents like Jocelyn have been charged and separated from their children. Federal public defenders and U.S. district courts do not track them. U.S. Customs and Border Protection reported just five migrant family members referred for prosecution in federal criminal court this year fiscal year, which started in October. It reported seven last fiscal year and 21 the year before that.

Estimates from migrant advocacy groups are much higher.

In Arizona, the Tucson-based Florence Immigration and Refugee Rights Project saw 213 such cases last year, an increase from the 190 cases the year before. Legal director Laura St. John said the group has already served 23 separated families this year.

A dozen cases of family separation were reported by Washington-based Lutheran Immigration and Refugee Service. Hope Border Institute surveyed attorneys representing 90 asylum seekers in the El Paso area between June and November 2017 and found 94% had clients separated from their children.

In December, a host of immigrant advocacy groups filed a complaint with Homeland Security alleging that parents have been charged and separated from their children, “without a clear or reasonable justification, as a means of punishment and/or deterrence, and with few mechanisms to locate, contact, or reunite with family members.” The complaint is pending.

As for Jocelyn, a federal judge in Las Cruces found her guilty of crossing the border illegally, a misdemeanor, on Sept. 22. She received a suspended sentence and was transferred to immigration detention in El Paso. Instead of self-deporting, Jocelyn stayed to pursue her asylum claim.

She learned through the Brazilian Consulate that her son was at a Chicago shelter and she has since spoken to him by phone four times.

She said her son told her that other children of migrants in the shelter tried to run away because they missed their parents. Jocelyn urged her son to stay put. He promised he would.

She worries, but is hopeful. Immigration officials recently found she has a credible fear of returning home, the first step toward obtaining asylum, and a pro bono attorney is trying to get her released on bond.

She tried to reassure her son during a recent phone call. “As soon as I get out,” she said, “I will come get you.”

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

Wow! What a great way to spend U.S. Government funds! Picking on refugees — abused women and kids who have the audacity to seek to exercise their legal rights under our laws and International Conventions.

Let’s get down to the truth here. “Jocelyn” in the above article appears to be a legitimate refugee. Assuming she’s telling the truth — and she has the scars to prove it, she should be a “slam dunk” asylum grant under Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) (domestic violence can be a basis for asylum).

The logical way of proceeding would be to release her while making sure she gets linked up with a good pro bono organization who can assign a lawyer to investigate, confirm, and document her case and then file the asylum application with the Immigration Court. In my experience, a well-documented case like this could go on an “accelerated short docket.” There it could be granted, basically by stipulation of the parties, after short testimony to confirm key events and double-check for any criminal or security grounds. With adequate preparation, and cooperation between the pro bono lawyer and the DHS Assistant Chief Counsel, this case should take no more than 30 minutes, one hour “tops,” of precious hearing time.

No need for detention, clogging the Immigration Courts’ Individual Hearing dockets, or any other form of “Aimless Docket reshuffling.” Best of all, we’re in compliance with the laws and our Constitutional guarantees of Due Process. Sounds like a “winner” to me for all concerned.

I have no doubt that there are many “Jocelyns” out there among recent border arrivals. Even those who don’t technically have “grantable” asylum claims under the overly restrictive precedents, should, if credible, be able to document strong cases for relief under the Convention Against Torture given the breakdown in government authority and de facto control by gangs in most parts of the Northern Triangle, the source of most of today’s Southern Border asylum applicants.

So, why are we wasting money on detention and criminal prosecution to keep folks who seldom if ever present any threats to the United States from getting the protection to which our laws entitle them? Why are we trying to send (usually ineffective in any event) “don’t come” messages to people who have a right to seek protection under our laws? Why would we make it difficult for individuals to exercise their statutory right to be represented by counsel and to have adequate time to prepare their cases?

Sounds to me like DHS and the Administration are abusing our laws and our Constitutional guarantees and wasting lots of time and money in the process. Ultimately, that’s something of which we should be ashamed.

PWS

02-20-18

MEET THE GOOD GUYS: NOVA SUPERSTAR IMMIGRATION ATTORNEY AVA BENACH HELPS “DREAMER TYPES” & THEY HELP AMERICA – THIS IS THE WAY THE SYSTEM CAN WORK WHEN YOU GET BEYOND THE WHITE NATIONALIST XENOPHOBIA OF TRUMP, SESSIONS, & MILLER & WHEN GREAT LAWYERS GET INVOLVED!

https://www.washingtonpost.com/local/she-was-almost-deported-as-a-teen-now-she-helps-frightened-versions-of-herself/2018/02/15/b39969a8-1245-11e8-9065-e55346f6de81_story.html

Petula Dvorak writes in the Washington Post:

“She was almost deported as a teen. Now she helps frightened versions of herself.

Liana Montecinos is a senior paralegal at Benach Collopy in Washington. She was 17 and about to be deported when lawyer Ava Benach helped her win asylum. (Jahi Chikwendiu/The Washington Post)

By Petula Dvorak Columnist February 15 at 3:39 PM Email the author

On many days in the shiny, sleek law office — in her sharp suit and sweeping view of Washington — she revisits all the horrors most people would want to forget:

The drunk men bursting into her tiny, adobe home at night, terrorizing the 15 children who lived there.

The walk across three countries, fearing for her life the entire way.

The months of eating nothing but beans and rice.

These are the same stories Liana Montecinos hears just about every time the 29-year-old paralegal sits down with a client.

Ava Benach, from left, Satsita Muradova and Liana Montecinos chat at their law office. (Jahi Chikwendiu/The Washington Post)

She doesn’t have to go there. She’s an American citizen and a third-year law student with a great future in front of her. But instead of going into something lucrative — corporate law, for example — she’s sticking with the law firm that helped her get political asylum.

“Being an immigrant and serving immigrants, it’s a very special connection,” Montecinos said.

And by doing that, she spends her days with frightened versions of herself.

I wanted to tell Montecinos’s story as Congress grapples with the fate of 1.8 million “dreamers,” the undocumented immigrants who were brought to this country as children. They face deportation under President Trump unless Congress can find a way to reinstate the protection they were given by President Barack Obama.

Montecinos was brought across the border by a relative in 1999, when she was 11 years old, after walking — yes, actually walking — from Honduras, across Guatemala, then across Mexico, crossing the Rio Grande into the United States.

She joined her mother in Northern Virginia — they had been separated since she was an infant and she had been raised by her grandmother — and her life was transformed.

She played volleyball and basketball in her Falls Church high school. She was a cheerleader and soccer player. She took Advanced Placement classes.

But no matter how well she was doing in school and no matter how faint her accent became, she knew it could all fall apart any second.

[She can’t bear to leave her kids. But she doesn’t want to be a criminal.]

And it nearly did when she was 17 and applied for legal status. Instead, the government began removal proceedings. She was going to be deported.

But it didn’t stop her from graduating from high school and enrolling at George Mason University, where she received a scholarship to cover the triple-tuition she had to pay as an undocumented student.

The scholarship’s donor — Helen Ackerman — introduced Montecinos to D.C. immigration attorney Ava Benach, who took on her complex case. What followed was a 10-year struggle.

“I met Liana when she was 17 years old,” Benach said. “And I knew she was special. She was out there, trying to figure out her own immigration status. I felt a very parental desire to help her.”

So they took on the case together, with Montecinos never giving up.

“I’d be doing an all-nighter, knowing I had a hearing the next day and the judge could send me away and it would all be for nothing,” she said.

But she kept studying, striving and working. You know how folks are always saying “Why don’t they just get legal?” It’s not that easy.

[My parents were welcomed as refugees. That was the America of 1968, not today.]

It took 10 years of hearings and arguments to convince a judge that she faced threats and violence in Honduras, in that tiny, adobe house, and that her hard work in school, model citizenship and potential were enough to grant her a place in American society.

Asylum is granted only to someone who faces persecution in their home country. And that persecution has to be for one of five reasons: your race, religion, nationality, membership in a particular social group, or your political opinion.

“It has to fit in one of five boxes,” Benach said. And her life’s work is helping her frightened clients qualify.

Montecinos was granted asylum and citizenship on June 29, 2016.

“For many, becoming a U.S. citizen is the last part of the process,” Montecinos wrote on her Facebook page that day. “For others, like myself, it is the beginning to end 16 plus years of uncertainty and of fear of a forceful return to imminent harm.”

She called herself “extremely blessed and thankful for such a privilege, which is denied to many,” she said. “This path, however, was not easy. It was not short. It was not cheap.”

She is in her third year of law school at the University of the District of Columbia, where she received a Student Humanitarian and Civic Engagement award on Thursday.

In her spare time, you see, she runs a nonprofit group she founded, United for Social Justice, which helps low-income, first-generation Americans get access to higher education. Oh, and she coaches and plays on a bunch of soccer teams.

When she meets with the undocumented children who are like her, the ones she is fighting for, it reminds her of her struggle.

Though her own story is horrible — think of being 11 and scared, hiding your face with blankets as you cross strange villages where people are yelling “pollos mojados” (wet chickens) at you, not knowing where you’re going — her clients recount even more heart-stopping stories.

She hears from children who were kidnapped, who rode for days on top of speeding trains, afraid to fall asleep because they’d fall off, from a little girl who was gang-raped in front of her father.”

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

Ava has a “Major League” legal mind to go with a “heart of gold!” She and her colleagues from her firm appeared on many occasions before me at the Arlington Immigration Court.

This article aptly illustrates one of the points I often make. Asylum law has intentionally been “jacked” against Central Americans by a non-independent BIA working under pressure from politicos to limit protections to large groups. Nevertheless, with a good lawyer (e.g., one who isn’t afraid to argue the BIA’s — often otherwise ignored — favorable precedents back to them and to take wrong BIA denials to the Court of Appeals if necessary), resources to build and document a case, and persistence, most of the “Dreamers” probably could win some type of relief in Immigration Court if not at the Asylum Office or elsewhere at USCIS.

But, what rational reason could there be for forcing folks like Liana Montecinos who are already here, part of our society, and just want to become taxpaying citizens and REALLY “Make America Great” (not to be confused with the disingenuous racist slogan of Trump and his White Nationalist “base”) go through such a laborious process? And what possible rationale could there be for wasting the time of an already overburdened Immigration Court system with cases of individuals who clearly should be welcomed and accepted into American society without being placed in “Removal Proceedings?” Also, what would be the rationale for trying to artificially “speed up” complex cases like Liana’s and trying to make life difficult for talented lawyers like Ava?

The answer is clear: there is NO rationale for the “Gonzo” Immigration enforcement and “designed chaos and attack on Due Process in Immigration Court” that Trump, Miller, Sessions, Nielsen, Tom Homan and their ilk are trying to ram down our throats. Sessions is the problem for justice in our Immigration Courts; lawyers like Ava are a key part of the solution! Clearly, the U.S. Immigration Courts are too important to our system of justice to be left in the clutches of a biased, “enforcement only,” White Nationalist, xenophobic opponent of individual due process like Jeff Sessions! American needs an independent Article I U.S. Immigration Court! Harm to the least and most vulnerable among us is harm to all!

The good news is that folks like Ava and her fellow “Generals” of the “New Due Process Army” are out there to fight Trump, Sessions & Company and their White Nationalist, anti-American actions every step of the way and to vindicate the Constitutional and legal rights of great American migrants like Liliana and millions of others similarly situated. They are “American’s future!” Trump, Sessions, Miller, et al., are the ugly past of America that all decent Americans should be committed to “putting in the rear-view mirror” where the “Trumpsters” live and belong! And, it won’t be long before Liliana becomes an attorney and a “full-fledged member” of the “New Due Process Army!”

Go Ava! Go Liliana! Due Process Forever!

PWS

02-16-18

FORMER GOVERNMENT IMMIGRATION EXECUTIVES (INCLUDING ME) FILE AMICUS BRIEF IN HAMAMA V. HOMAN IN 6TH CIRCUIT (“The Iraqi Christian Case”)

Here’s a copy of the brief prepared by Michael P. Doss, Esquire, of Sidley & Austin, Chicago IL:

Filed stamped copy of amicus brief

HERE’S THE INTRODUCTION SETTING FORTH “THE PLAYERS:”

IDENTITY AND INTEREST OF AMICI CURIAE

Amici have served in the U.S. Department of Justice and senior positions in the federal agencies charged with enforcement of U.S. immigration laws, and in those capacities have played substantial roles in the development, implementation, and adjudication of federal immigration policy and laws. Amici thus have an interest in this case, and in the just and efficient operation of the U.S. immigration enforcement system.

Mónica Ramírez Almadani served in the U.S. Department of Justice as Counsel to the Assistant Attorney General for the Civil Rights Division from 2009 to 2012, and as Deputy Chief of Staff and Senior Counsel to the Deputy Attorney General from 2011 to 2012, during which time she, among other things, advised on immigration

1 Amici submit this brief pursuant to Federal Rule of Appellate Procedure 29(a)(2). The parties have consented to the filing of this brief. Amici further state, pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), that no counsel for a party authored this brief in whole or in part, and no person other than the amicus curiae or their counsel made a monetary contribution intended to fund the preparation or submission of this brief.

1

Case: 17-2171 Document: 43 Filed: 02/12/2018 Page: 6

policy and litigation and worked closely with the Executive Office of Immigration Review.

Seth Grossman served as Chief of Staff to the General Counsel of the U.S. Department of Homeland Security (“DHS”) from 2010 to 2011, as Deputy General Counsel of DHS from 2011 to 2013, and as Counselor to the Secretary of Homeland Security in 2013.

Stephen Legomsky served as Chief Counsel of U.S. Citizenship and Immigration Services from 2011 to 2013, and as Senior Counselor to the Secretary of Homeland Security in 2015.

Leon Rodriguez served as Director of U.S. Citizenship and Immigration Services from 2013 to 2017.

John Sandweg served as the Acting Director of U.S. Immigration and Customs Enforcement (“ICE”) in 2013 and 2014, and as the Acting General Counsel of DHS from 2012 to 2013.

Paul Wickham Schmidt served as an Immigration Judge for the U.S. Immigration Court from May 2003 until his retirement from the bench in June 2016. Before his Immigration Judge appointment, Judge Schmidt served as a Board Member and Board Chairman for the Board

of Immigration Appeals, Executive Office for Immigration Review, from 2

Case: 17-2171 Document: 43 Filed: 02/12/2018 Page: 7

1995 until 2003. Judge Schmidt also served as acting General Counsel of the former Immigration and Naturalization Service (INS) from 1979 to 1981 and again from 1986 to 1987, and as the Deputy General Counsel of INS from 1978 to 1987.

As former leaders of the nation’s primary immigration agencies and the U.S. Department of Justice, and a former longtime Immigration Judge, amici are familiar with the operation of the United States immigration enforcement system. Amici support the district court’s preliminary injunction order and urge this Court to affirm that decision. Amici focus here on two issues before this Court: (i) first, whether the “motion to reopen” process currently available before our immigration courts provides Petitioners with an “adequate and effective” substitute for habeas relief; and (ii) second, whether the public interest is served by briefly staying enforcement of removal orders regarding these Iraqi nationals so that the immigration courts have a fair opportunity to review their claims.

3

Case: 17-2171 Document: 43 Filed: 02/12/2018 Page: 8

Based on our experience helping to lead the federal agencies charged with enforcement of U.S. immigration laws, we are compelled to conclude that the district court reached the correct conclusion on both these issues. In particular, without the “breathing room” provided by the district court’s temporary stay of removal, our overburdened immigration courts are unable to provide an adequate and effective remedy for Petitioners having valid claims for protection from removal due to the likelihood they face persecution or torture on return to Iraq. In addition, given the clearly established changed circumstances in Iraq, which show that the Petitioners would have an objective well- founded fear of persecution if forced to return, the district court’s order furthers the public interest by affording aliens threatened with persecution on removal to Iraq a meaningful opportunity to have these claims heard. The some-1,400 Iraqi nationals impacted by the district court’s order represent a drop in the bucket compared to those subject to removal each year by immigration authorities, and a temporary stay of their removal to allow immigration courts time to assess their claims will not undermine the United States’ immigration enforcement system.

\

AND, HERE’S AN OUTLINE OF THE ARGUMENT:

ARGUMENT ……………………………………………………………………………….. 5

I. The District Court Was Correct In Finding That, Under Current Circumstances, The Immigration Courts Do Not Provide Petitioners with Adequate and Effective Alternatives To Habeas Relief…………………….5

A. The Immigration Courts System ……………………….. 5

B. Our Immigration Courts Are Overburdened and Underfunded………………………………………………………. 6

C. Emergency Stay Motions before Our Immigration Courts Do Not Currently Offer Petitioners an Adequate and Effective Alternative Remedy …..10

II. Allowing Petitioners Time to Obtain Review of Their Motions To Reopen Is In the Public Interest and Will Not Unreasonably Interfere with Immigration Enforcement ……………………………………………………………..15

A. The United States has a Strong Interest In Protecting from Removal Those Petitioners Who Will Face Persecution or Torture in Iraq…………15

B. The District Court’s Order Will Not Interfere With the United States’ Immigration Enforcement Scheme………………………………………..18

CONCLUSION…………………………………………………………………………… 21

CERTIFICATE OF COMPLIANCE…………………………………………….23

CERTIFICATE OF SERVICE…………………………………………………….24

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

Many thanks to my “Fellow Amici” and to Michael Doss & his team at Sidley & Austin for a “Super Outstanding Job!” May Due Process prevail!!!!

PWS

02-14-18

JAMES HOHMANN @ WASHPOST DAILY 202 — TRUMP, GOP DON’T APPEAR SERIOUS ABOUT PROTECTING DREAMERS OR IMMIGRATION REFORM — RATHER, SEEK WAYS TO ADVANCE INTENTIONALLY DIVISIVE, RACIALLY BIASED, “FACT-FREE” WHITE NATIONALIST AGENDA! — Plus, My Point By Point Analysis Of Why The Democrats Should “Hang Tough” On A Dreamer Deal!

Hohmann reports:

BY JAMES HOHMANN

with Breanne Deppisch and Joanie Greve

THE BIG IDEA: Democrats are so eager to shield young foreign-born “dreamers” from deportation that they’re now offering to make compromises that would have been hard to imagine a year ago. Republicans, who feel like they have them over the barrel, are demanding more.

Showing his pragmatic side, for instance, Bernie Sanders says he’s willing to pony up big for border security if that’s what it takes. “I would go much further than I think is right,” the Vermont senator said in an interview Tuesday afternoon. “Unwillingly. Unhappily. I think it’s a stupid thing to do. But we have to protect the dreamers. … I’m willing to make some painful concessions.”

Sanders said a wall is still a “totally absurd idea” and that there are better ways to secure the border with Mexico, but he also emphasized that there will be “a horrible moral stain” on the country if President Trump goes through with his order to end the Deferred Action for Childhood Arrivals (DACA) program next month.

— Anti-immigration hardliners are staking out a firm position because most of them are not actually concerned about the plight of the dreamers. They have never thought these young people, whose undocumented parents brought them to the United States as children, should be here anyway. They agitated for Trump to end the program.

This means they’ll be fine if no bill passes, and they know that gives them way more leverage to demand wholesale changes to the entire legal immigration system. “The president’s framework bill is not an opening bid for negotiations. It’s a best and final offer,” said Sen. Tom Cotton (R-Ark.), who has emerged as the leader of this group in the Senate. He made this comment yesterday on “Fox and Friends,” knowing the president watches. Sure enough, Trump echoed the same talking point on Twitter, calling this the “last chance” for action.

— Mitch McConnell wants to use this week’s immigration debate to force show votes that can be used to embarrass vulnerable Democratic senators from red states. For example, the majority leader introduced a measure yesterday that would penalize so-called sanctuary cities for not cooperating with federal immigration laws. This issue tests well in polls and focus groups in most of the 10 states Trump carried in 2016 where a Democrat is now up for reelection. GOP insiders on the Hill say that McConnell is mainly focused on doing whatever it takes to protect his majority now that 2018 has arrived, and he has a narrower majority after the loss in Alabama.

— Democrats stuck together to block the Senate from taking up the poison pill on sanctuary cities, but the fact that the debate has so quickly devolved into a fight over process offered another data point – if for some reason you needed one – of how dysfunctional the Senate has become.

Trump urges senators to back his immigration proposal

— “Most Republicans on Tuesday appeared to be rallying behind a proposal by Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) and six other GOP senators that fulfills Trump’s calls to legalize 1.8 million dreamers, immediately authorizes spending at least $25 billion to bolster defenses along the U.S.-Mexico border, makes changes to family-based legal immigration programs and ends a diversity lottery system used by immigrants from smaller countries,” Ed O’Keefe reports. Senate Minority Leader Chuck “Schumer said the Grassley plan unfairly targets family-based immigration and that making such broad changes as part of a plan to legalize just a few million people ‘makes no sense.’

“In a bid to soften Trump’s proposals and win over Democrats, Sen. Jeff Flake (R-Ariz.) unveiled a watered-down version of the GOP proposal — but had not won support from members of either party by late Tuesday. Sen. Lindsey O. Graham (R-S.C.), a longtime proponent of comprehensive immigration changes, said the Grassley proposal should be the focus of the Senate’s debate. … Schumer and other Democrats, meanwhile, voiced support for a plan by Sens. Christopher A. Coons (D-Del.) and John McCain (R-Ariz.) that would grant legal status to dreamers in the country since 2013 but would not immediately authorize money to build out southern border walls and fencing.”

— Democrats would like to pass a narrow bill that only protects DACA recipients, but they know that’s not possible with Republicans in control of Congress and the presidency. To get the 60 votes needed to break a filibuster, they’re conceding on at least some of Trump’s demands related to security. Sanders said there are between 55 to 57 votes for a compromise that would save the dreamers and fund border protections. “We are scrambling now for three to five more votes,” he said.

— The Senate will convene at 10 a.m. to continue debate, as negotiations behind the scenes continue. Somewhat counterintuitively, conservative hardliners believe that Latinos will be less likely to turn out this November if nothing passes in Congress because activists will blame Democrats for not delivering.

Bernie Sanders heads to a Democratic caucus meeting in the Capitol. (Oliver Contreras for The Washington Post)

— Despite concerted efforts by Trump and McConnell to drive a wedge through the Democratic caucus, there remains a remarkable degree of unity. This highlights how much the terms of the immigration debate have shifted over the past decade. Every Democrat in Congress now wants to protect DACA recipients. It wasn’t always this way. The House passed a Dream Act in 2010 that would have allowed undocumented immigrants to apply for citizenship if they entered the United States as children, graduated from high school or got an equivalent degree, and had been in the United States for at least five years. Five moderate Democrats in the Senate voted no. If each of them had supported it, the bill would have become law, and DACA would have been unnecessary. Sen. Jon Tester (D-Mont.) is the only one of those five Democrats still left. (The others retired or lost.) Now Tester speaks out against the president’s decision to end DACA. (I explored this dynamic in-depth last September.)

Sanders marveled during our interview at how much the polling has shifted in recent years toward protecting dreamers, with some public surveys showing that as many 90 percent of Americans don’t think they should be deported. The share who think they should also have a pathway to become U.S. citizens has also risen. “If we talked a year or two ago, I’m not sure I would have thought that would be possible,” he said.

Hillary Clinton relentlessly attacked Bernie during the debates in 2016 for voting to kill comprehensive immigration reform in 2007. Sanders – working closely with some of the leading unions – expressed concern back then that the bill would drive down wages for native-born workers by flooding the labor market with cheap foreign workers. This position caused him problems with Hispanics during his presidential bid.

Sanders rejects the idea that his views have changed since 2007, and he still defends his 11-year-old vote. He noted that the League of United Latin American Citizens (LULAC) opposed that bill, as did the Southern Poverty Law Center, because it included a guest worker program that was “akin to slavery.” He said he remains just as concerned about guest worker programs as he was back then, but that he’s always favored a comprehensive solution that includes legal protections for the more than 11 million undocumented immigrants who live here. “You can say you support immigration reform, but obviously the devil is in the details on what that means,” the senator explained. “I stood with progressive organizations who said you don’t want to bring indentured servitude.”

Sanders criticized a guest worker program in his home state that allows resorts to hire ski instructors from Europe instead of native Vermonters. “Now do you not think we can find young people in Vermont who know how to ski and snowboard? But if you go to some of the resorts, that’s what you would find,” he said. “When I was a kid, we worked at summer jobs to help pay for college. … So I think we want to take a hard look at guest worker programs. Some of them remain very unfair.”

— After coming surprisingly close to toppling Clinton and winning the Democratic nomination two years ago, Sanders is at or near the top of the pack in every poll of potential 2020 primary match-ups. He’s going to Des Moines next Friday for a rally with congressional candidate Pete D’Alessandro, his first visit to Iowa this year. Sanders will also go to Wisconsin for Randy Bryce, who is running against Speaker Paul Ryan, and Illinois, where he’ll boost Chuy Garcia’s bid for retiring Rep. Luis Gutierrez’s open seat. A few weeks after that, he plans a tour of the Southwest. “I’m going to do everything I can to help people in 2018,” Sanders said.

Lobbying for their lives

— Republicans have gone the other direction. Before Trump came on the scene, the party was divided but GOP elites agreed that, for the long-term survival of the party, they needed to embrace more inclusive policies. Losses in 2012 prompted many Senate Republicans to endorse a comprehensive bill the next year (Sanders voted for it too), but the legislation was doomed in the House after Majority Leader Eric Cantor went down in a Virginia primary partly because of his perceived softness on the issue.

Elected Republicans used to insist adamantly that they were not anti-immigration but anti-illegal immigration. That’s changed. At the behest of Trump and Attorney General Jeff Sessions, Republicans are rallying around the idea of dramatic reductions in legal immigration. Two years ago, this was an extreme idea that most GOP senators would have quickly distanced themselves from. Now it’s considered mainstream and the centerpiece of the bill that McConnell has rallied his members behind.

To put it in perspective: By cutting the rate of legal immigration, Trump’s proposal – codified in Grassley’s bill — would delay the date that white Americans become a minority of the population by as many as five additional years, according to expert analysis.

“What’s very sad, but not unusual given the moment we’re living in, is that Republicans are more concerned about their right-wing, extremist, xenophobic base,” said Sanders. “You would think that, with 85 to 90 percent of people supporting protections for the dreamers, that it would not take a profile in courage to pass legislation to protect them.”

Kelly: ‘Dreamers’ who didn’t sign up for DACA were ‘too afraid’ or ‘too lazy’

— A dual-track fight over DACA is playing out in the courts. A federal judge in New York issued a preliminary injunction last night that keeps the program alive beyond Trump’s March 5 deadline so that legal challenges can play out. “A federal judge in California has issued a similar injunction, and the Supreme Court is expected this week to consider whether it will take up the fight over DACA,” Matt Zapotosky reports.

U.S. District Judge Nicholas Garaufis recognized that Trump “indisputably” has the authority to end the program put in place by Barack Obama, but he also called the administration’s arguments that DACA was unconstitutional and illegal under federal law flimsy. “Because that conclusion was erroneous, the decision to end the DACA program cannot stand,” he wrote.

— Happy Valentine’s Day. Don’t forget to get a gift.

— What I’m especially excited about this morning is baseball. Pitchers and catchers are reporting for spring tr

Listen to James’s quick summary of today’s Big Idea and the headlines you need to know to start your day:

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Contrary to most of the “chatter,” I think that the Dreamers and the Democrats have the upper hand in this one. I’ll tell you why below!

A “border security package,” could involve the Wall, technology and much needed management improvements at DHS (but certainly no additional detention money — stop the “New American Gulag” — or personnel for the Border Patrol until they full current vacancies and account for how they are currently are deploying agents).

Beyond that, the Dems probably could agree to a reallocation of diversity and some preference visas while maintaining current legal immigration levels. Cutting legal immigration levels, eliminating family immigration, or authorizing further denials of due process (the totally bogus and essentially evil claim that the current already inadequate protections for children and other vulnerable migrant’s are “loopholes”) should be “non-starters.”

If they can’t get the deal they want, the Dems can walk away and still win for the Dreamers in the long run. Here is why:

I doubt that Trump would actually veto a compromise bill passed by both Houses that protected Dreamers without his full “Four Pillars of White Nationalism” program.
- If he does, any Democrat who can’t make Trump and the GOP pay for such a dumb move in the next election cycle doesn’t deserve to be a Democrat.
- The “full Dreamer protection” trade for border security with no other changes should be a “no brainer.” If Trump or the GOP “tank” it over the restrictionist agenda, the Democrats should be able to make them pay at the polls.
Right now, the Administration is under two injunctions halting the repeal of the “core DACA” program.
- If the Supremes don’t intervene, that issue could be tied up in the lower Federal Courts for years.
  - It’s very clear that the Administration’s current position is ultimately a loser before the lower Federal Courts.
  - If the Administration tries to “short-circuit” the process by going through APA to promulgate a regulation to terminate DACA, that process also is likely to be successfully challenged in the Federal Courts.
    - The so-called “legal rationale” that Sessions has invoked for ending DACA has literally been “laughed out of court.”
    - Trump himself has said that there is really no reason to remove Dreamers from the U.S.
    - So, on the merits, an attempt to terminate DACA by regulation probably would be held “without any legal or rational basis” by the lower Federal Courts.
Even if the Supremes give the “green light” to terminate DACA, most “Dreamers” by now have plausible cases for other forms of relief.
- Many DACA recipients have never been in removal proceedings. If they have been here for at least 10 years, have clean criminal backgrounds, and have spouses or children who are U.S. citizens they can apply for “cancellation of removal.”
- “Former DACA” recipients appear to be a “particular social group” for asylum and withholding of removal purposes. They are “particularized, the characteristic of having DACA revoked is “immutable,” and they are highly “socially distinct.” Many of them come from countries with abysmal human rights records and ongoing, directed violence. They therefore would have plausible asylum or withholding claims, or claims under the Convention Against Torture (“CAT”).
- If ICE tries to use information voluntarily given by the Dreamers during the application process to establish removability or for any other adverse reason, that is likely to provoke a challenge that will be successful in at least some lower Federal Courts.
Safety in numbers.
- There is nothing that Trump, Sessions, and the DHS can actually do to remove 700,000+ Dreamers.
- The U.S. Immigration Courts are backed up for years, with nearly 700,000 already pending cases! Sessions is doing everything he can to make the backlog even worse. Dreamers will go to the “end of the line.”
- Sure Sessions would like to speed up the deportation “assembly line” (a/k/a “The Deportation Railway”).
  - But, his boneheaded and transparently unfair attempts to do that are highly likely to cause “big time” pushback from the Federal Courts and actually “tie up” the entire system — not just “Dreamers.”
  - The last time the DOJ tied to mindlessly accelerate the process, under AG John Ashcroft, the Courts of Appeals remanded defective deportation orders by the basket-load for various due process and legal violations — many with stinging published opinions.
    - Finally, even former Attorney General Alberto Gonzalez (“Gonzo I”), hardly a “Due Process Junkie” had enough and slowed down the train. It took years for the “haste makes waste” Circuit Court remands to work their way back through the system. Some might still be hanging around.
  - Because the GOP White Nationalists and Trump read off of “restrictionist cue cards” that don’t take account of the law, facts, or history, the Dems should have a huge advantage here if and when individual “Dreamer” removal cases get to the Federal Courts.
- Each “Dreamer removal case” should present the Democrats with excellent example of the cruelty, stupidity, and total wastefulness of the Trump/Sessions/DHS enforcement policies. Wasting money to “Make America Worse.” Come on, man!
- Bottom Line: Trump and Sessions have created a “false Dreamer emergency” that they can’t escape without some help from the Democrats. If the Democrats see an opportunity to make a “good deal” for the Dreamers, they should take it. But, they shouldn’t trade the Dreamers for the harmful White Nationalist restrictionist agenda! Eventually, the problem will be solved in a way that is favorable for most Dreamers, regardless of what the White Nationalists threaten right now. The Dreamers might just have to hang on longer until we get at least some degree of “regime change.”

PWS

02-13-18

Mar 10 The AG’s Strange Decision in Matter of E-F-H-L-

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