"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Hon. Cecelia M.Espenoza Former Appellate Immigration Judge, BIA Source: Denverdemocrats.org
DISTRICT 4:
Candidate
Total Votes
% Votes
Cecelia Espenoza (D)
20,806
80.5%
Jack Daus (R)
5,042
19.5%
SOURCE: AZCENTRAL.com
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You go, my friend and colleague! Thanks for running and for standing up for a better, fairer America! Building a “values based movement” starts at the “grass roots level.” You’re getting it done, Cecelia!
I have spent my life serving our community by trying to create a more just, equitable and inclusive world. From my work as a judge striving to give everyone an equal opportunity for justice, to my work as a law professor training the next generation of legal minds, to my work as a local Democratic Party leader helping to elect progressive candidates, I have always answered the call to serve.
I am Cecelia Espenoza, and I am thrilled to announce that I have officially filed to represent North and West Denver in the Colorado State House!
I have seen the amazing results when the community works together to make a difference. My parents were migrant farmworkers who became small business owners. My father became a community icon as the first licensed Mexican-American barber. He created a space for all in our community to gather and enjoy life, even when things were hard. I promise that I will work to unite our community toward our shared goals and values: fairness, equality, and progress for all.
We face so many issues in Colorado that make it harder for people to thrive. Our rent and housing costs have skyrocketed, leaving many of us without a safe and secure place to live. Our wages have not kept up with the spike in the cost-of-living. Too many of us lack access to affordable healthcare; adequate food; or the ability to pay down student loans. All of this while right-wing politicians try to undermine basic rights around reproductive healthcare, the LGBTQIA community, and access to the ballot box.
I’m running because the voters of House District 4 deserve a representative who will work to serve them and address issues, not serve themselves by posturing on social media and seeking the limelight. The real problems our community faces like gun-violence, housing costs, climate change, educational inequity, racism, and healthcare access demand a clear, mature, and reasoned look at changing policy. I promise that I will be a representative who puts the people of our community first.
I am proud of my record of getting things done to help others. I am proud to be a Democrat and to have helped so many other great candidates achieve success throughout my life. Now I need your help as an inaugural member of my team.
If there are any questions that aren’t answered by my website, or if you just want to grab a cup of coffee, you can call or text my cell phone at 703-989-9261 or email me at cecelia@cecelia4colorado.com
A HUGE congratulations to RMIAN and Laura Lunn on today’s 10th Circuit win in Arostegui-Maldonado v. Garland. I was lucky enough to be in the court at oral argument to watch Laura expertly navigate tough questions from a difficult panel and today the published decision came out holding (1) that the PFR filed within 30 days of the BIA order affirming the IJ denial of relief in withholding-only proceedings is timely filed and (2) that the IJ and BIA “defied logic and law” in misapplying the under-color-of-law element of the CAT claim, requiring remand.
Incredible work to Laura and all others involved!
Please note that you can contact your attorney and paralegal at their direct phone lines. For all future phone communications, please contact us directly instead of using the main phone number. Our direct phone lines are listed at the bottom of our emails, located in our signature blocks.
Folks, the IJ’s “reasoning to denial” in this case was beyond totally absurd! It’s an example of the type of judicial misconduct and incompetence that still flourishes in parts of Garland’s “any reason to deny” dysfunctional EOIR!
AG Merrick Garland thinks it’s fine to play “roulette” with human lives in his arbitrary, capricious, and dysfunctional EOIR. Those trying to help his victims obtain justice disagree! Is this REALLY the way things ran when Garland was on the D.C. Circuit? If not, why is it “good enough for Immigration Court?” IMAGE: tvtropes
After more than two years of the Biden Administration under Garland, we still have not seen the type of systemic, merit-based “house cleaning” of biased and incompetent judges and the replacement of deadwood (and worse) at the totally unjust and dysfunctional EOIR that could and should have been a “day one priority” for Garland’s DOJ.
There is simply no excuse for this type of disingenuous, life-threatening performance by both EOIR and OIL under Garland’s deficient leadership! There are literally thousands of qualified experts out here who could have done a better job than the IJ and the BIA in this case!
It’s Garland’s job to get better judges on the EOIR bench — judges who will be fair, impartial, due-process focused, and experts in all facets of immigration and human rights laws! His failure to do his job is undermining our justice system and endangering human lives! How is this “OK?”
In the “real world,” folks who “can’t do their jobs” find themselves “out of a job!” Why is Garland’s DOJ an “exception,” with lives and the future of American justice on the line? Isn’t it past time to “just say no” to continuing to treat the ongoing national disgrace at EOIR as “just an afterthought” in the elitist, disconnected world of Garland’s DOJ, where the human lives being destroyed by DOJ’s failures are treated as “somebody else’s problem?”
“The DOJ issues a hollow statement condemning FGM. But, when it comes to building on a 27-yr-old precedent to help gender-based refugees, they have been largely indifferent to suffering and the dire need for protection.” PHOTO: Creative Commons 4.0
Dan Kowalski from LexisNexis Immigration Community sent in this recent asylum victory from the Denver Immigration Court:
Hats off to Judge Burgie and Attorney Alexandra Katsiaficas for showing how effective advocacy and good judging can save lives and “move” cases at the “retail level” of EOIR.
This decision is comprehensive, straightforward, understandable, and logical. This is exactly the type of precedent that the BIA should be (but isn’t) issuing and enforcing on a consistent, nationwide basis! Why isn’t EOIR getting the job done under Garland?
While Judge Burgie didn’t cite Matter of A-R-C-G- on asylum based on domestic violence, she did cite a number of my “favorite precedents” from the long-gone but not totally forgotten “Schmidt-Board:” Matter of Kasinga, Matter of O-Z- & I-Z-, Matter of D-V-, and Matter of S-P-, as well as the BIA’s oft-cited but seldom followed “seminal” asylum case Matter of Acosta, which was the starting point for Kasinga and other favorable asylum precedents of the past.
Judge Burgie also cited and followed favorable 10th Circuit precedent. She got the “unwilling or unable to protect,” “internal relocation,” and “nexus” issues correct. She used the regulatory presumption based on past persecution effectively. Significantly, she also included a correct additional analysis of why this case, and others like it, should be granted based on “egregious past persecution” (“Chen grant”) even in the absence of a current well-founded-fear. Most of these cases should be “easy grants” preferably at the Asylum Office, but if not, at EOIR.
Instead, some IJs and many BIA panels “invent” reasons to deny that mock asylum law and distort the reality of conditions for women in the Northern Traingle and elsewhere!
I recently commented elsewhere on the irony of Garland’s DOJ issuing a “pro forma declaration” endorsing “Zero Tolerance for FGM Day,” while doing such a poor overall job of actually protecting those who have suffered that and other forms of gender based persecution. Action over hollow rhetoric, please!
Seems to me EOIR didn’t do a very good job of “building on the saving potential” of Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), my “landmark” opinion finding that FGM could be a basis for granting asylum. Indeed, after the “Ashcroft purge” removed those of us BIA judges committed to protecting refugees suffering from gender based persecution, the BIA intentionally misconstrued Kasinga and shamefully tried to limit it.
So transparently horrible was this effort that one of Ashcroft’s Bush II successors, AG Mukasey, hardly a voice for progressive jurisprudence and women’s human rights, finally had to intervene to put a stop to the BIA’s deadly nonsense. See Matter of A-T-, 24 I&N Dec. 617 (A.G. 2008). This was only after after blistering criticism of the “post-purge” BIA’s disingenuous approach by some of Judge Mukasey’s “former Article III superiors” on the Second Circuit.SeeBah v. Mukasey, 529 F.3d 99, 124 (2d Cir. 2008) (“The BIA refers, in passing, to the act of female genital mutilation as “reprehensible,” . . . but its entirely dismissive treatment of such claims in these cases belies any sentiment to that effect.” Straub, Circuit Judge concurring).
Judge Staub’s criticism of the BIA’s shallow and disingenuous treatment of too many asylum claims, particularly those based on gender persecution, remains just as true today under Garland as it was then. “Throwaway lines” — basically “boilerplate” —disingenuously expressing sympathy, but then misconstruing facts and law to deny life-saving protection, are no substitute for competent, fair judging at EOIR!
More than a quarter-century after Kasinga, I still don’t see much commitment at DOJ/EOIR to consistently protecting women from gender-based persecution. That being said, some IJs, particularly (but not only) those with expertise gained by representing asylum seekers, like Judge Burgie, are doing a good job of applying Cardoza, Kasinga, A-R-C-G-, D-V-, O-Z-&I-Z-, the regulatory presumption, expert testimony, and an honest reading of country conditions to grant desperately-needed protection in gender-based cases. The BIA, not so much.
Also, while issuing this statement, DOJ is “sitting on” gender based regulations, promised by President Biden on “day 1” to be delivered by the Fall of 2021! Reportedly, there is considerable “Miller Lite” restrictionist opposition within the Administration to treating protection claims for gender-based refugees fairly, generously, and consistently. See, e.g., https://www.cbsnews.com/news/immigration-biden-asylum-limits-us-mexico-border-arrivals/.
Kind of makes me wonder what, if anything, Dems REALLY stand for when the chips are down, human lives are at stake, and courageous, informed, bold leadership is required! GOP White Nationalist nativist bullies are only too happy to express their disdain for the rights and contempt for the humanity of all vulnerable refugees. They specifically target women.
But, when it comes to standing up for the legal and human rights of asylum seekers, most of them already written into our laws, Dems often “hide underneath the table.” That’s particularly true of this Administration’s incredibly poor and spineless approach to asylum at the Southern Border and their failure to address the asylum disaster at EOIR.
And, it’s not that Biden’s morally and legally vapid approach to asylum seekers has won any support from the right, progressives, or independents. Almost everyone is suing or threatening to sue the Administration about some aspect of their hapless, mushy, often self-contradictory handling of asylum. It’s a traditional, perhaps endemic, problem that once elected, Dems have a hard time distinguishing friends from foes. At least on immigration, they spend far too much time catering to the views and bogus criticisms of the latter while ignoring the informed views and experiences of the former.
Judge Burgie is a Barr appointee, but has a diverse background that includes not only service as an EOIR JLC and fraud and abuse prevention counsel, but also time representing and advocating for refugees and asylum seekers. Her asylum grant rate has gone up steadily over three years on the bench and currently stands at approximately 75%, well within the range I’d expect from a competent, expertIJ handling a non-detained docket.
That’s about 2X the national average grant rate of 37.5%. And, the latter is “up” from its artificially suppressed rate under Trump! Better EOIR judges at the “grass roots level” can make a difference and save lives even in the absence of leadership from Falls Church and “Main Justice!”
As this case confirms, there is “substantial judicial potential” on the the EOIR bench, most of it at the trial level. That’s particularly true of some of Garland’s most recent appointments who are widely-recognized and universally-respected asylum experts — “practical scholars” if you will.
But, EOIR still has not reached the “critical mass” of outstanding jurists necessary to “turn this broken system around” in the absence of leadership, positive examples, and operational reforms “from the top!”
That’s why I advocate for “change from below as the way to go” to save some lives and institutionalize fair judging and best practices at EOIR. So, NDPA heroes, keep those applications flowing forupcoming vacancies on the Immigration Bench, at all levels. I want YOU to bring justice to the broken “retail level” of our legal system! See, https://immigrationcourtside.com/2023/01/12/-i-want-you-to-be-a-u-s-immigration-judge/.
The first 17 hires to the court system responsible for determining whether migrants get to remain in the country is filled with former prosecutors and counselors for Immigration and Customs Enforcement (ICE) as well as a few picks with little immigration experience.
Almost none have made their career representing migrants in court.
The Thursday announcement from the Department of Justice (DOJ) initially perplexed immigration attorneys, advocates and even some former immigration judges who wondered why the group so closely mirrored the jurists favored by the Trump administration.
. . . .
It’s also a surprising move for a president that has otherwise sought to quickly reverse a number of Trump immigration policies while calling for a more humane response to migration.
“This is a list I would have expected out of Bill Barr or Jeff Sessions, but they’re not the attorney general anymore. Elections are supposed to have consequences,” said Paul Schmidt, now an adjunct professor at Georgetown Law School after 21 years as an immigration judge. That included time serving as the chair of the Board of Immigration Appeals, the highest administrative body dealing with immigration cases.
“No one on that list is among the top 100 asylum authorities in the country, and that’s the kind of people they should be hiring — not prosecutorial re-treads,” he added.
. . . .
DOJ pushed back against criticism that the new judges would contribute to a pattern of rulings that favor government attorneys over immigrants, saying it “takes seriously any claims of unjustified and significant anomalies in adjudicator decision-making and takes steps to evaluate disparities.”
“Note also that the Executive Office for Immigration Review (EOIR) continually evaluates its processes and procedures to ensure that immigration cases are adjudicated fairly, impartially and expeditiously and that its immigration judges uniformly interpret and administer U.S. immigration laws,” the spokesperson said.
But Schmidt said diversifying the attorneys on the bench is what will be needed to have a greater impact.
“You need to get some progressive immigration experts into the system who recognize what good asylum claims are who can establish precedent for granting cases and then move those cases through the system,” he said.
“I haven’t seen much evidence to back up their initial claim they want to be fair and just to asylum seekers. It’s just Stephen Miller Lite.”
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The DOJ’s response is preposterous, further evidence Garland is the wrong person to bring “justice” back to “Justice!” No, and I mean NO, progressive immigration expert in America would call the DOJ’s judicial hiring practices under the Trump Administration fair and merit-based! These lists and the selection process were tainted by the Trump kakistocracy at DOJ. What kind of Attorney General perpetuates this utter nonsense!
Numerous detailed reports have criticized the Trump hiring plan that Garland mindlessly and insultingly furthered! Garland has access to all of these criticisms, most of which were delivered to the Biden Transition Team in one form or another. No excuses for Garland’s atrocious handling of EOIR to date!
The claim that EOIR takes claims of glaring discrepancies “seriously” is equally ridiculous and intellectually dishonest! Current TRAC Immigration data shows asylum grant rates for currently sitting Immigration Judges varying from more than 90% to 1% with a number of Immigration Judges, including several “rewarded” with appointments to the BIA under Barr, denying 98% or 99% of claims. Duh, you don’t need to be a statistician or have an Ivy League law degree to know that there is a skunk 🦨 in these woods!
These are major, unacceptable discrepancies first highlighted by my colleagues Professor Andy Schoenholtz, Professor Phil Schrag, and Professor and now Associate Dean (Temple Law) Jaya Ramji Nogales in their seminal work “Refugee Roulette” written more than a decade ago at Georgetown Law. The system is actually immeasurably worse now than it was then, as Sessions and Barr filled the Immigration Bench and packed the BIA with unqualified judges notorious for their lack of knowledge of asylum law and their anti-asylum bias. In some cases, they combined those shortcomings with allegations of rudeness and unprofessional behavior lodged by the private bar.
The NY Times figured out exactly what is wrong with the Immigration Courts — that they are not really “courts” at all by any normal measure and are operated by individualswho place immigration enforcement above due process and equal justice. Garland is certainly smart enough to have figured out what the NYT Editorial Writers had no difficulty in documenting and describing!
Neither Biden nor Garland would be in their current jobs without the efforts of progressive immigration litigators and scholars over the past four years and the energy and resources they injected into the Biden-Harris campaign when the chips were down! Progressives can’t allow the Biden Administration and Garland to continue to treat them as “chopped liver” while coddling Stephen Miller, Billy Barr, and, outrageously, even “AG for 5 minutes” “Monty Python” Wilkinson’s clearly unjustified and highly inappropriate judicial picks!
These are NOT bureaucratic jobs. “Conditional offers” aren’t “jobs,” particularly when made in the “excepted service” on the eve of or even after a hotly contested election where immigration and human rights were major issues! Immigration Judge positions are important life or death judicial positions in what is now America’s worst and most broken judiciary. In that context, Garland’s inappropriate judicial selections are totally outrageous and set a tone of continuing disrespect and disregard for some of the Democratic Party’s most loyal supporters, their expertise, and the important communities they represent!
Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Woman Being “Tried By Ordeal” 17th Century Woodcut Public Realm Source: Ancient Origins Website https://www.ancient-origins.net/history/trial-ordeal-life-or-death-method-judgement-004160Gender-based asylum experts like Professor Karen Musalo, who successfully argued the landmark case Matter of Kasinga before the “Schmidt BIA,” and her protégées are among the many progressive immigration/human rights experts systematically excluded from the “Immigration Judiciary” over the past two decades. Now Garland further demeans these experts by appointing “Billy Barr/Stephen Miller Lite unqualified bureaucrats” @ EOIR rather than reaching out and seeking help from Musalo and other progressive experts in long overdue reforms of the Immigration Courts to end institutionalized racism and a culture of misogyny in asylum adjudication @ EOIR! He then has the audacity to defend his error in judgment with unadulterated BS! Whatever happened to Lisa Monaco and Vanita Gupta, as Garland’s gross mishandling of EOIR turns loyal Biden supporters into vocal, energized opponents?
It’s time for the Biden Administration to pay attention to the progressive immigration/human rights/due process bar! Otherwise, perhaps it’s time for progressives to turn their energies and talents to opposing an Administration that neither represents their views nor values their expertise and tireless efforts in support of American democracy and equal justice for all!
I, for one, did not go to the polls last fall to help more “Billy the Bigot” picks off tainted, exclusionary lists, developed in a culture that actively discouraged progressives and minority attorneys from applying, get jobs as Immigration Judges for which there is no way that they are the best candidates available! And, I’ll bet that neither did other members of the NDPA! Enough is enough! End the EOIR Clown Show!☠️🤡 And, if Garland can’t or won’t do that, then Biden needs a new AG before Garland irrevocably splinters the Democratic base with his gross mishandling of EOIR!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Sent: Friday, July 31, 2020 4:16 PM
To: ICLINIC@LIST.MSU.EDU; Immigration Law Professors List
Subject: [immprof] FW: victory in Johnson v. Barr – Colorado possession statute overbroad and indivisble!!!
team,
a huge victory today for one of our clients, and hopefully many other folks in our community.
in Johnson v. Barr, the 10th circuit ruled that the Colorado statute of possession of a controlled substance is overboard as to the federal schedule and indivisible as to the particular controlled substance within a schedule.
the court honed in on the categorical approach, looking first to the plain language of the statute, the penalties assigned under the statute, its unpublished decision in Arellano, and persuasive state case law in deciding in our favor.
-this means that no conviction for possession of a schedule I or II CS can support the CS grounds of inadmissibility or deportability. this will hopefully help countless people who were found inadmissible, deportable, subject to mandatory detention, and ineligible for relief to seek redress of those legal errors.
-by extension, this decision is likely to apply to simply possession of a schedule III-V because it is also overbroad and structured nearly identically to the possession statute at issue in Johnson. moreover, due to legislative change last year classifying all PCS of schedule I-V CS as a DM1 offense starting in 2020, all future PCS offenses are likely also overbroad and indivisible.
this is definitely a day to celebrate. we will see whether the govt seeks rehearing or cert.
As noted by Hans, this decision could have “big-time” impact and result in numerous motions to reopen and “redos.” It’s just another example of how the gimmicks and misinterpretations used and encouraged by the Trump regime as part of their “haste makes waste” deport everyone policies actually create backlogs and waste resources while doing grave injustices.
America needs an independent Article I U.S. Immigration Court with real expert judges, with a commitment to human rights and due process,dedicated to seeing that individual results are fair and just, rather than carrying out a perverted, race and hate driven nativist political agenda to maximize deportations in disregard of the law.
Elizabeth Jordan Esquire Director, Immigration Detention Accountability Project (IDAP)Laura Lichter Lichter Immigration Denver, CO Past President, AILA
Hi all –
We filed an emergency motion about COVID-19 last night. It is system-wide, although filed in CD California, and includes evidence from Aurora thanks to Laura Lichter’s brave client.
By César Cuauhtémoc García Hernández and Carlos Moctezuma García in The NY Times:
Inside an immigration court in southern Texas this week, a judge asked one of us to stand at the far end of the courtroom and not submit any documents on behalf of a client, perhaps as a health precaution. Inside a nearby federal court, dozens of migrants were being processed for violating federal immigration law. The coronavirus has paused most of our lives. But for migrants, life under a pandemic looks a lot like life before it: suffering because President Trump has an insatiable appetite for imprisoning migrants.
It’s time to shut down immigration prisons.
Across the country, the federal government locks up tens of thousands of people every day who are suspected of violating immigration law. The Border Patrol crams people into holding cells that resemble large kennels. Immigration and Customs Enforcement runs a network of hundreds of prisons — from a county jail north of Boston to an 1,100-bed facility tucked in a southern Texas wildlife refuge. While it’s good that ICE will stop some immigration enforcement, it should release the detainees in its custody. Another government agency, the Marshals Service, holds thousands more who are being prosecuted for violating criminal immigration law.
No matter which agency is in charge, there are only two reasons recognized under U.S. law to confine these people: flight risk or dangerousness. But in this moment, the risks to life and public health that come with imprisoning migrants far outweigh either reason.
Image
A protest against migrant detention centers in Los Angeles last year.
Credit…
Ronen Tivony/SOPA Images — LightRocket, via Getty Images
Decades of research teaches us that crime goes down as the migrant population goes up. On top of that, pilot projects going back decades show that with the right support, migrants almost always do as they are asked. Inside immigration prisons, there are children too young even to tie their shoelaces. Families of asylum seekers hold on to the hope that in the United States, they might find refuge. There are longtime permanent residents with families, careers and homes here. Few have any history of violence. Most have powerful incentives to build lives just as ordinary as the rest of ours.
More than 3,000 medical professionals are calling on Immigration and Customs Enforcement (ICE) to release detainees amid the coronavirus pandemic.
In an open letter, the clinicians said the conditions inside detention facilities make it easy for the virus to spread and difficult for those in custody to seek medical attention.
“We strongly recommend that ICE implement community-based alternatives to detention to alleviate the mass overcrowding in detention facilities,” they said. “Individuals and families, particularly the most vulnerable—the elderly, pregnant women, people with serious mental illness, and those at higher risk of complications— should be released while their legal cases are being processed to avoid preventable deaths and mitigate the harm from a COVID-19 outbreak.”
The letter points to the spread of disease public health officials have seen in places like nursing homes, such as Life Care Center in Kirkland, Wash., where more than half of residents have tested positive for the virus and more than 20 percent have died in the past month.
“Considering the extreme risk presented by these conditions in light of the global COVID-19 epidemic, it is impossible to ensure that detainees will be in a ‘safe, secure and humane environment,’ as ICE’s own National Detention Standards state,” the letter added.
Since the start of the outbreak, some have raised concerns about immigration policies.
In February, Rep. Norma Torres (D-Calif.) wrote a letter to the administration’s coronavirus task force and later led a group of Democrats asking them to stop the implementation of the “public charge” rule amid the spread of COVID-19.
On Monday the American Civil Liberties Union (ACLU) filed a lawsuit against ICE, calling them to release migrants in civil detention at the Tacoma Northwest Detention Center who are at high risk for serious illness or death if a COVID-19 outbreak spreads to the facility.
. . . .
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Read both of the foregoing articles in their entirety at the respective links.
OK, here’s my prediction:DHS will hold migrants until coronavirus breaks out “big time” in the Gulag and folks start getting sick and dying. At that point, DHS will dump them on the streets to fend for themselves. DHS will disclaim any responsibility, blaming the deaths and public health risks on the victims, their attorneys, judges, asylum laws, “sanctuary cities,” Democrats, and countries that decline to accept deportees.
Politically biased, anti-asylum decision making by “judges” who work for the regime actually kills!
And, we should never forget that the Gulag, the BIA, and many other aspects of this politically biased, irrational, unconstitutional system that threatens human lives and debases humanity only continue to operate because of the fecklessness of Congress and the complicity of Article III Courts.
Due Process Forever! The New American Gulag Never!
PWS
03-19-20
UPDATE: FROM IMMPROF: U.S. Court in Seattle stuffs ACLU’s bid to spring vulnerable migrants from Gulag!
Let’s see. We know conditions are bad in DHS facilities, and 3,000 health professionals say that the Gulag is a “coronavirus trap” waiting to happen. Many localities are releasing nonviolent criminals as a prudent measure to prevent the spread of disease.
But, the judge thinks it’s a great idea to wait and see if the disaster happens and the bodies stack up. By then, of course, it will be too late to stop the spread. But, I guess the judge is very confident that ICE practices “social distancing” and carefully wipes everything down in their Gulags. What could possibly go wrong?
As an incidental point, how would you like to be on the staff of one these high-risk prisons?
Gotta hope the judge is right for everyone’s sake. But, I greatly fear he’s wrong. Dead wrong!
PWS
03-20-20
UPDATE:
From: Matt Adams, Northwest Immigrant Rights Project [mailto:matt@nwirp.org] Sent: Thursday, March 19, 2020 5:10 PM To: Dan Kowalski Subject: NWIRP and ACLU Statement on Court Refusal to Release People at High-Risk of COVID-19
FOR IMMEDIATE RELEASE
NWIRP and ACLU Statement on Court Refusal to Release People at High-Risk of COVID-19
SEATTLE, WA — A federal district court ruled today that it will not immediately release immigrants detained at the Tacoma Northwest Detention Center in Tacoma, Washington, as requested in a lawsuit filed Monday against U.S. Immigration and Customs Enforcement. The suit — filed by Northwest Immigrant Rights Project (NWIRP), the American Civil Liberties Union, and the ACLU of Washington — sought the release of people in civil detention who are at high risk for serious illness or death in the event of COVID-19 infection due to their age and / or underlying medical conditions. The court indicated that it would continue to consider the case, particularly as the situation related to COVID-19 rapidly evolves.
Public health experts have repeatedly warned that release of vulnerable people from custody is critical in light of the lack of a vaccine, treatment, or cure for COVID-19 — both for the health and safety of people in detention, as well as for the staff who work at these facilities and the communities they return home to every day. As the healthcare system in the Seattle-area is increasingly overwhelmed with COVID-19 cases, this step is urgent to reducing the toll on its infrastructure.
Matt Adams, legal director for NWIRP, issued the following statement:
“We strongly disagree with ICE’s assertion that the harm is not imminent simply because ICE has not yet publicly confirmed any cases of COVID 19 at the NWDC,” said Matt Adams. “We will continue pushing forward to challenge the detention of our vulnerable clients during this pandemic. I just hope our clients do not succumb to severe illness or death before we can procure their release.”
Eunice Cho, senior staff attorney at the ACLU’s National Prison Project, issued the following statement:
“We will continue to fight for our clients, who face tremendous danger to their health while in detention. Public health officials are in agreement — it is not a matter of if there is a COVID-19 outbreak in immigrant detention centers, but when. ICE should heed their warning. By refusing to immediately release our clients, ICE is jeopardizing their lives and the lives of its staff and their families.”
Northwest Immigrant Rights Project (NWIRP) is a nationally-recognized legal services organization founded in 1984. Each year, NWIRP provides direct legal assistance in immigration matters to over 10,000 low-income people from over 130 countries, speaking over 60 languages and dialects. NWIRP also strives to achieve systemic change to policies and practices affecting immigrants through impact litigation, public policy work, and community education. Visit their website at www.nwirp.org and follow them on Twitter @nwirp.
JUSTICE PREVAILS AGAIN INIMMIGRATION COURTS EVEN IN THE “POST-A-B-“ ERA — Outstanding Analysis By Judge Eileen Trujillo Of The U.S. Immigration Court In Denver, CO, Recognizes “Women In Mexico” As PSG, Finds Nexus, Grants Asylum, Distinguishes A-B-
Congrats to NDPA warrior (and former EOIR JLC) Camila Palmer of Elkind Alterman Harston, PC in Denver who represented the respondents! Great representation makes a difference; it saves lives!
Conversely, the DOJ EOIR policies that inhibit representation, discourage full and fair hearings, and hinder sound scholarship by U.S. Immigration Judges, thereby making it more challenging for judges to produce carefully researched and written decisions (rather than haphazard contemporaneous oral decisions which often lack professional legal analysis) are a direct attack on Due Process by Government organizations that are supposed to be committed to upholding and insuring it.
Go to this link for a redacted copy of Judge Trujillo’s decision:
U.S. Immigration Judges are not trained in how to recognize and grant asylum cases (or anything else, favor that matter — judicial training was a recent “casualty” of budget mismanagement by DOJ & EOIR). The BIA, always reluctant to publish “positive precedents” on asylum, is keeping a low profile after its emasculation by former AG Sessions. So these cases actually become “de facto precedents” for advocates to use in assisting Immigration Judges and DHS Assistant Chief Counsel in “doing the right thing” in critically examining and completing cases efficiently in the face of the “hostile environment” for Due Process and cooperation in court that has been created by EOIR and DOJ.
It’s a huge “plus” that Judge Trujillo was familiar with and used Judge Sullivan’s outstanding opinion in Grace v. Whitaker which “abrogated” (in Judge Trujillo’s words) or “dismantled and discredited” (my words) Sessions’s biased and legally incorrect decision in Matter of A-B-. Shockingly, during the recent FBA Asylum Conference in New York, Judge Jeffrey Chase and I learned from participants that some U.S. Immigration Judges weren’t even aware of Grace v. Whitaker until counsel informed them! Talk about a system in failure! But, the “bright side” is once aware of the decision, Immigration Judges almost everywhere reportedly were appreciative of the information and eager to hear arguments about how its reasoning applied to the cases before them.
It’s important to remember that in the perverse world of today’s EOIR, fairness, scholarship, teamwork, respect, and correct decision-making — in other words, Due Process of law — have been replaced by expediency, focus on “numbers,” churning out orders of removal, and assisting DHS with its “gonzo” and ever-changing enforcement efforts. What real court operates as an adjunct of the prosecutor’s office? Well, that’s what happens in most of the third word countries and authoritarian states that send us refugees. But, in the United States, courts are supposed to operate independently of the prosecutor.
That’s why EOIR, in its present form of a “captive” highly politicized immigration enforcement organization “must go” and be replaced by an independent Article I Court. Until then, everybody who relies on this system, including ironically not only individuals, but DHS enforcement, Article III Courts, and the Immigration Judges and BIA Judges themselves, will continue to suffer from the dysfunction created by “malicious incompetence” and “Aimless Docket Reshuffling.”
Thanks again and congrats to Camila for adding to the growing body of correct asylum jurisprudence available on the internet for all to use. Just think what could be accomplished if we had a Government devoted to “using best practices to guarantee fairness and Due Process for all!”
A coalition of 16 states filed a federal lawsuit Monday to block President Trump’s plan to build a border wall without permission from Congress, arguing that the president’s decision to declare a national emergency is unconstitutional.
The lawsuit, brought by states with Democratic governors — except one, Maryland — seeks a preliminary injunction that would prevent the president from acting on his emergency declaration while the case plays out in the courts.
The complaint was filed in the U.S. District Court for the Northern District of California, a San Francisco-based court whose judges have ruled against an array of other Trump administration policies, including on immigration and the environment.
Accusing the president of “an unconstitutional and unlawful scheme,” the suit says the states are trying “to protect their residents, natural resources, and economic interests from President Donald J. Trump’s flagrant disregard of fundamental separation of powers principles engrained in the United States Constitution.”
. . . .
Read the rest of Amy’s article at the above link.
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But, over at TheHill, Nolan Rappaport predicts that Trump ultimately will prevail:
Family Pictures
Nolan writes:
House Speaker Nancy Pelosi (D-Calif.) and Senate Democratic Leader Chuck Schumerclaim that President Donald Trump’s Southern Border National Emergency Proclamation is an unlawful declaration over a crisis that does not exist, and that it steals from urgently needed defense funds — that it is a power grab by a disappointed president who has gone outside the bounds of the law to try to get what he failed to achieve through the constitutional legislative process.
In fact, this isn’t about the Constitution or the bounds of the law, and — in fact — there is a very real crisis at the border, though not necessarily what Trump often describes. It helps to understand a bit of the history of “national emergencies.”
As of 1973, congress had passed more than 470 statutes granting national emergency powers to the president. National emergency declarations under those statutes were rarely challenged in court.
n Youngstown Sheet & Tube Co. v. Sawyer, which was decided in 1952, the Supreme Court overturned President Harry S. Truman’s proclamation seizing privately owned steel mills to preempt a national steelworker strike during the Korean War. But Truman didn’t have congressional authority to declare a national emergency. He relied on inherent powers which were not spelled out in the Constitution.
Trump, however, is using specific statutory authority that congress created for the president.
In 1976, Congress passed the National Emergencies Act (NEA), which permits the president to declare a national emergency when he considers it appropriate to do so. The NEA does not provide any specific emergency authorities. It relies on emergency authorities provided in other statutes. The declaration must specifically identify the authorities that it is activating.
We’ll see what happens. While the arguments made by Trump in support of his “Bogus National Emergency” were totally frivolous (and, perhaps, intentionally so), the points made by Rappaport, Hemel, Shane, and Lithwick aren’t. That could spell big trouble for our country’s future!
Trump doesn’t have a “sure fire legal winner” here; he might or might not have the majority of the Supremes “in his pocket” as he often arrogantly and disrespectfully claims. Nevertheless, there may be a better legal defense for the national emergency than his opponents had counted on.
Certainly, Trump is likely to benefit from having a “real lawyer,” AG Bill Barr, advancing his White Nationalist agenda at the “Justice” Department rather than the transparently biased and incompetent Sessions. While Barr might be “Sessions at heart,” unlike Sessions he certainly had the high-level professional legal skills, respect, and the “human face” necessary to prosper in the Big Law/Corporate world for decades.
Big Law/Corporate America isn’t necessarily the most diverse place, even today. Nevertheless, during my 7-year tenure there decades ago I saw that overt racism and xenophobia generally were frowned upon as being “bad for business.” That’s particularly true if the “business” included representing some of the largest multinational corporations in the world.
Who knows, Barr might even choose to advance the Trump agenda without explicitly ordering the DOJ to use the demeaning, and dehumanizing term “illegals” to refer to fellow human beings, many of them actually here with Government permission, seeking to attain legal status, and often to save their own lives and those of family members, through our legal system.
Many of them perform relatively thankless, yet essential, jobs that are key to our national economic success. Indeed, it’s no exaggeration to say that like the Trump Family and recently exposed former U.N Ambassador nominee Heather Nauert, almost all of us privileged and lucky enough to be U.S. citizens who have prospered from an expanding economy have been doing so on the backs of immigrants, both documented and undocumented. Additionally, migrants are some of the dwindling number of individuals in our country who actually believe in and trust the system to be fair and “do the right thing.”
But, a change in tone, even if welcome, should never be confused with a change in policy or actually respecting the due process rights of others and the rule of law as applied to those seeking legally available benefits in our immigration system. That’s just not part of the White Nationalist agenda that Barr so eagerly signed up to defend and advance
It’s likely to a long time, if ever, before “justice” reasserts itself in the mission of the Department of Justice.
PWS
02-19-19
NOTE: An earlier version of this post contained the wrong article from Dahlia Lithwick. Sorry for any confusion.
Here’s a timely update from Jennifer Casey, Partner at Kolko & Associates in Denver, CO:
Lawsuit Challenges Power of Immigration Judges to Hear Cases Due to Unlawful Designation of their Delegating Authority: Acting Attorney General Matthew Whitaker
On December 4, 2018, Mr. Carlos Rojo-Ramirez, of Colorado, through his attorneys David. L. Kolko and Jennifer Casey (Kolko & Associates, P.C.), challenged President Trump’s unlawful designation of Matthew G. Whitaker as Acting Attorney General of the United States.
In, Rojo-Ramirez v. Trump, et. al., (18-cv-03125), filed in the U.S. District Court for the District of Colorado, Mr. Rojo-Ramirez asserted that U.S. Immigration Judges are temporarily operating without any legal authority because their power over individuals in immigration removal proceedings is based solely on a delegation of authority from a (lawfully appointed) Attorney General of the United States.
On November 7, 2018, President Trump announced via Twitter that he designated Matthew Whitaker to serve as the Acting Attorney General of the United States. The designation was made without Senate confirmation as required by the Appointments Clause of the U.S. Constitution, and was executed in violation of the Attorney General Succession Act and Federal Vacancies Reform Act.
This follows other legal actions brought by the State of Maryland and Senators Blumenthal, Whitehouse and Hirono, as well as an amicus brief in Matter of Negusie, 27 I&N Dec. 481 (A.G.) by the American Immigration Council, each of which challenge the unconstitutional appointment of the Acting Attorney General and the resulting legal implications from the unlawful designation.
The Immigration Judges serving at the Executive Office of Immigration Review (EOIR) are not independent administrative judges, and operate solely by statute and regulation as delegates of the Attorney General. Plaintiff’s counsel asserts that because Whitaker has not been constitutionally appointed, he does not hold any power to delegate the authority of the office of the Attorney General to the Immigration Judges serving at the EOIR. As a result, these Immigration Judges do not presently have legal authority to preside over the cases before them.
Due to the unique legal structure of the EOIR, with Immigration Judges acting as delegates of a (lawfully appointed) Attorney General, this case calls in to question the legal authority of any actions by the EOIR’s Immigration Judges after November 7, 2018. Nationwide, there are over one million cases pending before approximately 400 Immigration Judges serving in 62 Immigration Courts.
The Plaintiff’s legal challenge includes a request for declaratory judgment and injunction until such time as a lawfully appointed Attorney General is serving in this role, and is able to lawfully delegate the authority of that office to the Immigration Judges of the United States.
For more information, please contact David Kolko or Jennifer Casey at Kolko & Associates, P.C.
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As usual, Trump has taken the most idiotic approach to governing. He could have gotten rid of Sessions (hard to argue with that, no matter what his reason) and avoided any problems by 1) appointing the duly confirmed Deputy, Rod Rosenstein, as Acting AG; and 2) having another suitable candidate, such as former AG Bill Barr, ready to submit to Congress. I suspect that Barr would have been easily confirmed during the “lame duck” session. But, making government function in a reasonable and lawful manner isn’t what Trump and his cronies are about.
“I think Jeff Sessions has forgotten about the constitution and the tenth amendment,” California Republican Dana Rohrabacher said in a Thursday press call with four other pro-marijuana legalization congresspeople. The call was in response to the announcement that day by Attorney General Jeff Sessions to withdraw the Cole memo, an Obama-era policy that effectively instructed feds to lay off marijuana businesses in states that have legalized the drug except in cases where, for instance, dealers were sending pot across state lines. Under Sessions’s new policy, US attorneys have the discretion to prosecute weed cases.
“Do you know anyone who supports the attorney general’s decision?” a reporter asked during the call. No, replied members of the Cannabis Caucus.
As the bipartisan group of lawmakers emphasized throughout the call, the idea of the Department of Justice going after legal marijuana businesses in the eight states—and the District of Colombia—that have voted to legalize the drug infringes on states’ rights and goes against the will of the people. It can’t be emphasized enough that prosecuting marijuana cases is unpopular: 64 percent of Americans, and 51 percent of Republicans, favor federal legislation.
The reasons are obvious enough. “Marijuana is a lot better than alcohol. I want to stress that because alcohol creates violence, and I’ve seen great people cut somebody’s head off drunk. You don’t see that with marijuana. I’m not condoning it. I’m saying that was the effect upon them, and now they smoke,” Alaska Congressman Don Young, told me last April.
Studies have shown that it’s safer to consume than alcohol or tobacco, two drugs that are legal to use in the United States. Nevertheless, in Sessions’s reversal of the Cole memo, he asserted, “Marijuana is a dangerous drug and… marijuana activity is a serious crime.” (Sessions once reportedly quipped that he used to think Klu Klux Klan “were OK until I found out they smoked pot.”)
Congress has been quick to condemn Sessions’s latest anti-legal marijuana decree. Cory Gardner, Colorado’s Republican senator, vowed to hold up “DOJ nominees, until the Attorney General lives up to the commitment he made to me prior to his confirmation.” (The commitment being that he would leave legal weed alone.)
“Effectively, this leaves the legal status of marijuana up to 93 US attorneys across the country. Whatever side of the bed these government bureaucrats wake up on can literally determine the freedom and liberty or the imprisonment of hundreds of thousands of American citizens,” Colorado Democrat Jared Polis explained during Thursday’s call.
“I’m convinced that the backlash that a number of my colleagues have talked about is going to be felt. I think the Attorney General is actually creating problems for the Trump administration,” Oregon Democrat Earl Blumenauer added.
Even members of Congress who hadn’t been explicitly pro-marijuana legalization before this move spoke out in support of state marijuana laws. “Although I did not support the 2014 ballot initiative to legalize marijuana, it strongly passed and I passionately believe in democracy and the principles of states’ rights,” Senator Dan Sullivan, an Alaska Republican, wrote in a press release on Thursday. “Today’s action by the Department of Justice…could be the impetus necessary for Congress to find a permanent legislative solution for states that have chosen to regulate the production, sale and use of marijuana.”
I couldn’t find any senator or representative who has gone on the record supporting Sessions’s latest move, though it was cheered by anti-marijuana groups like Smart Approaches to Marijuana (SAM). “This is a good day for public health. The days of safe harbor for multi-million dollar pot investments are over,” SAM president Kevin A. Sabet said in a press release. “DOJ’s move will slow down the rise of Big Marijuana.”
Although the congresspeople from states with legal weed are concerned about Sessions changing DOJ policy, they were quick to point out that even after the Cole memo was issued in 2013, Obama’s DOJ was still somewhat hostile to legal marijuana. The solution, they believe, is passing a bill that prevents the federal government from interfering with state marijuana rights, and ending federal marijuana prohibition.
“The Cole [memo] wasn’t going to make it any easier or anymore difficult to put into legislation those things that we really need to put in [to protect legal marijuana],” Rohrabacher said. “As we go back into the session, there would be no open discussion of it, and our constituencies wouldn’t have been alerted of it had the Cole memo not been withdrawn. So this is a big plus for our efforts.”
Meanwhile, in this video, Jimmy Kimmel graphically explains why Gonzo hates weed so much:
I guess that the GOP is OK with “Gonzo Enforcement Policies” as long as they just target the “usual suspects:” Blacks, Latinos, Foreigners, the LGBTQ Community, Women who seek to exercise their abortion rights, leftist protesters, Democrats, etc.
But when they start “hitting home” — particularly with profitable and popular industries in their own states — well, not so much. And, they are “surprised” that the Constitution and past promises mean nothing where Gonzo’s personal views on the law and policy are involved?
Ironically, Gonzo’s latest “tone deaf” decision to potentially waste resources on enforcement almost nobody wants could actually ignite the legislative process to remove marihuana prohibitions from Federal law.
As year-end funding decisions loom, a familiar pattern is repeating, with House conservative Republicans playing hardball to pull their colleagues to the right.
And moderates are increasingly tiring of it — especially after Tuesday’s repudiation of a candidate seen as emblematic of the GOP’s right flank in the Alabama special election.
Government funding and efforts to abolish Deferred Action for Childhood Arrivals, a popular program for young undocumented immigrants, have some moderates increasingly wondering: Why can’t we play hardball, too?
Moderate Republicans and House members in districts that are either generally competitive or which Hillary Clinton carried in the 2016 presidential election are starting to grow frustrated with the effectiveness of groups like the House Freedom Caucus in influencing legislation, often by withholding their votes as a bloc until demands are met.
“Yes,” Florida Republican Rep. Carlos Curbelo said with exasperation when CNN asked Wednesday if the time had come for centrists to borrow tactics from the far right.
“We cannot be spectators here,” Curbelo said. “Other groups have used their leverage to influence the process, and we must do so as well, especially when there are 800,000 lives which could be radically changed for the worse if we don’t take care of (DACA).”
“I think last night’s election’s going to cause a lot of people to re-think where we are and what we’re doing,” said New York Republican Rep. Pete King of Democrat Doug Jones’s victory in Alabama.
While the current focus is on passing tax reform, one Republican staffer said patience could be limited once it’s dispensed with, as vulnerable moderates are frustrated with being forced to take tough votes seen in many cases as messaging exercises to appease the conservative base.
“It’s the moderates who are going to have to run in tough elections on this sh**,” the staffer said.
But there remains skepticism that, despite the frustration, moderates can hold together as a group the way conservatives have been able to do, or are willing to stomach the tough tactics the right flank employs.
The conservative House Freedom Caucus, for example, almost tanked a procedural measure on tax reform in a public show of force on the House floor earlier this month to send a message to Speaker Paul Ryan about year-end funding.
And according to a Republican source, rumors have been building around the Capitol that the farther right lawmakers are prepared to challenge Ryan’s speakership immediately if he calls a stand-alone fix for DACA to the floor.
Nearly three dozen moderates, on the other hand, sent a carefully worded letter to Ryan urging him to move on a fix for DACA, which protects young undocumented immigrants brought to the US as children, by the end of the year, without making any concrete threats to withhold any votes on government funding.
Curbelo has committed to oppose government funding without clear progress toward a DACA fix, and is urging fellow Republicans to do the same.
Pennsylvania Rep. Charlie Dent, a moderate Republican who has decided to not seek reelection, said he agreed with Curbelo that a DACA fix should go on an upcoming must-pass bill, though it could potentially be in January.
“The power of 25 here can force a lot of things,” Dent said, referring to the GOP margin of the majority in the House. “And Freedom Caucus has been effective at it, they can put their votes together, and we need to do that from time to time, (though) we need to pick our fights carefully.”
But one conservative Republican source noted that moderates have always had difficulty being as united as more conservative groups. That sentiment was echoed by King, who referred to the group that former House Speaker John Boehner once called “legislative terrorist(s)” as “crazies” even as he distanced himself from moderates.
“I consider myself actually a blue-collar conservative, I’m not really in the moderate wing, I’m just against some of the crazies,” King told CNN, speaking of his unsuccessful fight against the GOP tax bill he sees as devastating for his state. “It’s hard to unify everybody.”
Some moderates gave credit to the Freedom Caucus, saying their effectiveness should only be a source of inspiration.
“I don’t fault anybody for doing what they believe is best in their way of representing their district,” said Washington Rep. Dan Newhouse, who helped organize the DACA letter. “I respect that. …(But) it’s also incumbent upon me to do the same thing.”
Washington (CNN)Democrats are increasingly grappling with the likelihood that Congress could push a decision on a popular immigration program into January, even as they’ve spent weeks saying it should be dealt with by the end of the year.
“To some extent, yes,” Congressional Hispanic Caucus member and Arizona Democrat Rep. Raúl Grijalva said Thursday on Capitol Hill when asked if there’s a growing realization that the issue will likely slip to January.
“Some of us are holdouts, but if you talk about reality, yeah,” he continued. “I mean, if leadership is not pushing it, they’re not holding the line with members and we have a CR that includes (children’s health funding), which is really, really important, funding for community health centers, then not seeing it before the end of the year becomes more and more precarious.”
Democrats and even some Republicans have not given up on trying to get done a deal to maintain a version of the Deferred Action for Childhood Arrivals program, which protected young undocumented immigrants brought to the US as children from deportation but which President Donald Trump has opted to terminate.
Advocates note the issue is more urgent than portrayed by the administration. More than 20,000 DACA recipients either did not renew or were rejected in the window the government offered, meaning more than 100 lose their status every day before the March 6 deadline the administration intended to set.
close dialog
But even as negotiations continue and intensify on both sides of the Capitol to reach a bipartisan compromise on the issue, the likelihood of being able to pass something by the end of the year is rapidly slipping away.
Illinois Sen. Dick Durbin, the No. 2 Democrat, hosted a meeting of the Senate negotiators on Thursday afternoon, including Republicans Lindsey Graham, James Lankford, Cory Gardner, Jeff Flake and staff from Sen. Thom Tillis. But all exiting the meeting said while negotiations progressed, no break-throughs have been reached yet. And while some wouldn’t rule it out as a possibility, none expressed much optimism it could be done by the end of the year.
“It’s starting to take form, but we’re still negotiating,” Durbin said.
Tillis, R-North Carolina, said earlier Thursday that negotiators are working on a consensus on how to handle the DACA component of the deal, reconciling different bill approaches that are out there.
“What we’re trying to do is figure out where we have common ground there,” Tillis said. “But we’ll be reaching a point pretty soon to where we have to have a discussion about chain migration, which is very important, the President’s told us, and border security and other things. I would say when we talk about ‘we’re close to an agreement,’ we’re only talking about one half of the broader agreement, so maybe we’re a third of the way there.”
“I think people are having good faith discussions,” he continued. “I can’t imagine it being done by year end.”
Strategic maneuvering
Democrats know that their greatest leverage for many of their priorities is on government funding, which expires a week from Friday. Republicans will likely need Democratic votes to pass a full year of funding, in the Senate and likely in the House where budget hawks traditionally reject domestic spending levels.
But they also have a laundry list of priorities for negotiation, including an overall deal on domestic spending, community health centers, children’s health insurance, pensions and immigration. And five legislative days before funding runs out.
The current plan, according to multiple lawmakers and aides, is for the House to pass a bill that would fund defense for a year, reauthorize children’s health insurance, and punt the rest into January. That bill is dead on arrival in the Senate, where 44 Democrats have gone on record opposing it. The belief is that the Senate will send something back to the House, likely with Obamacare payments or possibly just a short-term funding extension into January. All the while, parties negotiating a DACA deal in both chambers remain optimistic about the progress of talks.
Such a plan could squeeze Democrats, especially in the Senate, to weigh rejecting an opportunity to keep negotiating and risk the government shutting down, or to hold out for more offers from Republicans.
It’s possible that a short-term extension could pass the House without Democratic votes, taking pressure of House Minority Leader Nancy Pelosi, who with her caucus has been more vocal about rejecting anything that doesn’t include DACA by the end of the year. House Freedom Caucus Chairman Mark Meadows said many of his members, who are the more troublesome Republicans for the party on funding, could support a punt.
“If it’s just looking at a (continuing resolution) that gets us to January 19 where we can negotiate on a bigger omnibus, I think most of my members will support that,” Meadows, R-North Carolina, told reporters Thursday. “There are some who won’t, but most would be supportive of that.”
In the Senate, Democratic aides believe that January could be an option. They feel there would be no need to force a bad deal now, if a good deal is still attainable in a few weeks’ time. Senators have also been more cautious than their House colleagues.
“I’m hopeful that it will happen. And we’re not there yet on what will happen if it doesn’t happen,” Hawaii Sen. Mazie Hirono said at a press conference Thursday about pushing for all of Democrats’ priorities by the end of the year, asked whether members would reject a deal to keep making progress on some issues.
Warnings to Democratic leadership
Still, Democrats are warning their leadership that they can’t appear to surrender.
“I think there is a Plan A, a Plan B, a Plan C, a Plan D and a Plan E in the House, I can see that there are more heightened negotiations in the Senate, and I’m dedicated to working 24/7 and I have to say my caucus has been doing that,” Congressional Hispanic Caucus Chairwoman Michelle Lujan Grisham said Thursday. “We want something to vote on next week, and we are making that clear to leadership. … So I think we have to stay the course and any conversation that we can wait even 15 days is cruel, unjust, wrong and there’s real harm.”
“I’m not ready to wave the white flag and say let’s see what happens,” Grijalva echoed. “I think the pressure has to be constant on this thing or it will fail.”
The deputy chair of the Democratic Party, Minneosta Rep. Keith Ellison, said Democratic leadership should know that the party base will not accept less than a full fight.
“My advice to anybody in leadership in the House of Representatives is we better do everything imaginable to deliver on DACA or we better we be visibly shown to have done every single thing that could be done,” Ellison said. “Our grassroots base is expecting us to deliver on DACA, and that’s it. … I feel so strongly about this. We cannot fail on this.”
CNN’s Phil Mattingly contributed to this report.
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Tal is amazing! As you probably can tell, I’m a big fan of her reporting: Timely, informative, balanced, easy to read. I’m glad she is on the CNN “immigration beat” — particularly for the “Dreamers” story which is so critical to the fate of our nation (not to mention the Dreamers).
The “Freedom Caucus” is in fact the “Bakuninist Wing” of the GOP: Out to destroy American Government and perhaps take the world with it. They are an existential threat to every American, nearly on the same level as the Trump Administration itself.
Somewhere, Mikhail Alexandrovich Bakunin –– the “Grandaddy of all Anarchists — must be smiling at how these “valueless bad dudes” can actually “con” constituents into voting for their own (and everyone else’s destruction). Of course, on the way to destruction, they don’t mind freeloading off the public purse. They just mind it when others get their fair share of the pie.
The Dems need to peel off enough GOP moderate support to enact a decentDream Act. They definitely can’t go with the White Nationalist inspired — essentially racist (let’s be upfront about it) — end of so-called “chain migration.”
Chain migration is actually the White Nationalists’ misnomer for “Beneficial Family Migration” that has helped make America great and is essential to our future success. Yeah, they aren’t all White Christians who arrive with PhDs speaking English (although some family members undoubtedly fit this mold). And, that’s a good thing for both us and them that “they aren’t, and they don’t.”
While I can see a case for some additional immigration enforcement resources, increases should be limited to technology, management improvements, and increased legal resources for the ICE Offices of Chief Counsel.
Under NO circumstances should more immigration agents be authorizedunless and until DHS improves their current hiring and training practices; abandons “Gonzo enforcement” for a rationally tailored enforcement program along the lines of other law enforcement agencies; and closes down the majority of their unnecessary, wasteful, and counterproductive “American Gulag,” starting with substandard and corrupt private immigration detention facilities.
With the border largely under control, interior enforcement without any discernible plan, rational objectives, or meaningful results, and the U.S. Immigration Courts in complete disarray under Sessions, there is no need for yet more immigration agents at present.
What on earth would they do? “Bust” more janitors, maids, landscapers, mothers, and students who are helping America? Then what? Throw them into the collapsing Immigration Courts which already have enough work for the balance of this Administration?
It’s much more likely that White Nationalists Trump, Sessions, and their cronies would build up an internal security police, to be used against America, than that additional agents would be put to any reasonable, permissible, and constructive use. It’s a prescription for disaster. And, ironically, one that should worry the GOP “Bakuninists.” Hard to see how expanding Government domestic police resources without rational assignments or goals should be a priority for folks who want to “shrink government, then drown it in a teacup.”
And anyone who says that the so-called “Trump Executive Orders” (an exercise in “Gonzo racist irrationalism” if I’ve ever seen one) is some sort of “reasonable blueprint” has been smoking some stuff stronger than can legally be bought in Colorado. Yeah, Trump can issue any Executive Order he wants to. But, he can’t fund most of his unnecessary initiatives without Congressional permission. This is Congress’s chance to force some rationality back into the U.S. Immigration enforcement system, which has taken a decidedly irrational, racist, and xenophobic turn under Trump and Sessions.
THE TRUMP administration likes to justify its multi-front crusade against immigration and immigrants as a revival of the rule of law, or a recalibration of the rules to favor disadvantaged American workers. In fact, it is largely a resurrection of xenophobia that coincides with a spike, nearly 50 years in the making, in the number of foreign-born residents living in the United States.
“For decades,” Attorney General Jeff Sessions said in a speech in October, “the American people have been begging and pleading . . . for an immigration system that’s lawful and serves the national interest. Now we have a president who supports that.”
Mr. Sessions’s claims are specious. An embrace of legality is not the driving force behind the president’s decision to slash the admission of refugees to levels unseen in nearly 40 years. It is not what compelled Mr. Trump to endorse Republican legislation that would cut the annual allotment of green cards by a half-million, mainly by barring relatives of existing legal permanent residents of the United States. It is not why the Pentagon has considered ending a recruitment program that put skilled foreigners on a fast track for citizenship if they served in this country’s armed forces. And it is not why the administration favors ending the so-called diversity visa lottery program, under which immigrants are admitted from nations underrepresented in other programs.
Those programs were all legally enacted and, by and large, carried out in compliance with the law. The animating force in targeting them, as the administration is now doing, is an effort to turn back the tide of foreigners in our midst and exorcise what the president evidently sees as the demon of diversity.
The administration’s goal is not to reshape America’s immigration policy but to prune immigration itself. While Mr. Trump backs a GOP plan that would give preference to immigrants with skills rather than family connections in the United States, the effect would be not simply to shift the mix while maintaining the current level of legal immigration but to drastically reduce overall numbers of admissions.”
. . . .
Unfortunately, Mr. Trump has poisoned the debate on immigration so thoroughly that he has twisted the frame through which many Americans see the issue. His slurs — labeling Mexican immigrants as rapists and Muslim immigrants as terrorists — form the context from which the administration’s policies arise. They are affronts to U.S. tradition and values.
They’re also an assault on what Mr. Sessions refers to as “the national interest” and specifically the United States’ economic well-being. Legions of employers dependent on immigrant workers, especially to fill low-skilled jobs for which native-born Americans are too well educated and in short supply, will be harmed by choking off the flow of immigrant labor. With unemployment at a 16-year low and approaching levels unseen in a half-century, the Trump policies threaten to sap the economy by depriving it of the energy of striving newcomers who have fueled this nation’s ambitions since its founding.
It is within the president’s discretion to intensify efforts at deportation, though the humanitarian price — in shattered communities and families, including those whose children, born in this country, are Americans — is high. It is reasonable to take steps to tighten border security, though with illegal crossings already at a 40-year low and the Border Patrol’s staffing having already been doubled since the George W. Bush administration, a significant new investment along those lines faces the risk of diminishing returns. The administration may arguably have had a valid legal basis for ending the Obama-era program granting deportation protection for “dreamers” — undocumented immigrants who entered the country as children, often brought by their parents — though only a smallish minority of Americans believes they should be removed from this country.
But what value, other than sheer bigotry, is served by reducing the resettlement of refugees in the United States at a time when the number of displaced people worldwide has soared to staggering levels? In a country founded and in many respects shaped by refugees — a country that has resettled some 3 million refugees since 1980, more than any other nation — why does the Trump administration insist on turning its back on them now, when some 17 million people have been displaced from their homes across international borders around the world due to conflict or persecution, the highest number in a quarter-century?
It is clearly jarring to some Americans that the foreign-born portion of the overall population has nearly tripled since 1970. Many communities, towns and cities have been transformed culturally and socially by that surge, about a third of which was driven by illegal immigrants.
In some places, local government budgets have strained to provide services for immigrants, particularly public education, and the economic dislocation felt by many working-class Americans is a fact. But that dislocation is not mostly caused by immigrants. The United States is a more prosperous place today than it was before the surge in immigration, and immigrants have fed that prosperity — by helping to harvest America’s crops, build its cities, care for its young and elderly, and found some of its most buoyant companies.
. . . .The Trump administration’s crusade against immigration and immigrants is not just a quest to diminish the influence of the “other”; it is an assault on the nation’s future and prospects.”
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Read the complete editorial at the link.
This is largely (not entirely — I believe that there is a sound legal basis for continuing DACA, for example) what I’ve been saying all along:
Jeff Sessions is a bigoted, xenophobic, anti-American scofflaw whose disingenuous, self-righteous claims to be restoring the “Rule of Law” (that would be the “Jim Crow laws” of Sessions’s Alabama past) are totally outrageous;
The real purpose of the Administration’s xenophobic program is to divide and weaken America by stirring up racial, religious, and ethnic animosities;
The “Gonzo,” arbitrary interior enforcement program serves no useful purpose other than playing to the “biases of the base” and the wishes of some (not all) disgruntled immigration enforcement agents for unbridled authority;
Our xenophobic anti-immigrant rhetoric and policies are costing us leadership and respect on the world scene (just this weekend, the Administration withdrew from the UN Global Migration Pact);
Our past strength as a nation and our future success and prosperity is based on immigration (and, the US clearly has benefitted from BOTH legal and “extra-legal” migration);
The Trump Administrations’s rhetoric and actions are preventing us from having the serious discussion we need: how we can better regulate (not cut off, diminish, or eliminate) future legal migration of all types to serve our national interest (and to be more “in tune” with “market realities” that drive much immigration), reflect our humanitarian values and the legitimate needs of current and future migrants, and encourage use of our legal immigration system, thereby diminishing the incentives for extra-legal migration.
As long as U.S. immigration policy remains in the hands of White Nationalist xenophobes like Trump, Sessions, Miller, and Bannon (yes, Stevie “Vlad the Lenin” has vacated his perch in the West Wing, but he continues to pull strings through his White Nationalist disciples Sessions and Miller and to stir the pot through his alt-right “news” apparatus Breitbart News) we won’t get the constructive dialogue and the humane, realistic “immigration reform” that we really need. In other words, under current leadership, the real “Rule of Law” will continue to be diminished.
PROFESSOR CÉSAR CUAUHTÉMOC GARCÍA HERNÁNDEZ writes in the NY Times:
“At the door of the Lindsey-Flanigan Courthouse in Denver one Friday in April, federal Immigration and Customs Enforcement agents tackled a man to the ground. A chilling video shows the man — who, according to his lawyer, was there to deal with a traffic ticket — yelling “No!” “My hand!” and “Why?” in Spanish. Sheriff’s deputies order passers-by to stand back, and the violent arrest continues.
The next month, ICE agents returned and arrested another man. His lawyer can be heard in a video of the incident asking the agents if they had a warrant. One responds, “Yes, sir.” The lawyer asks, “Can I see it?”
The agent’s response: “No, sir.”
Both men, according to their lawyers, were taken to immigration detention centers.
This type of arrest is on the rise. Lawyers and judges in Arizona, California, Colorado, Connecticut, New Jersey, New York, Oregon, Texas and Washington all reported in the first year of the Trump administration that immigration officials were breaking with tradition to descend upon their courthouses. Such arrests in New York have increased by 900 percent in 2017, according to the Immigrant Defense Project.
This is a deeply worrisome trend because arrests at courthouses don’t just derail the lives of the unsuspecting people who are detained, they threaten the very operation of our judicial system. Such arrests scare people away from the courts, keeping them, for example, from testifying at trials or seeking orders of protection. By using this tactic, the nation’s lead immigration law enforcement agency is undermining a pillar of our democracy.
. . . .
Courthouses have a special place in American society. It’s only in a court of law that we can be confident that disputes will be mediated deliberately, and according to a set of rules intended to ensure justice for all parties. As the Supreme Court declared in 1907: “The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government.”
The pursuit of justice depends on getting the parties in the same room. That’s why courts have the power to drag in unwilling participants with subpoenas. They can compel witnesses to testify or risk contempt charges. Courts rely on their hard-earned legitimacy as the rightful locations for resolution of disagreements.
Courthouse arrests by ICE deter not only undocumented immigrants but also people who are here legally but are nervous that they might have somehow compromised their status (or that an officer will think they have). That’s a nuance that is next to impossible for the average person to discern, and those complicated legal questions are exactly what immigration judges spend a lot of energy trying to answer.
. . . .
The harm this causes is bigger than the people whom ICE arrests. United States citizens are not immune to the impact of ICE activity in courthouses. All of us — including those of us who could easily prove our immigration status — depend on courts to do their job, and all of us suffer if the fear of ICE keeps people away.
ICE understands its actions can paralyze important institutions. Longstanding ICE policy discourages questioning or arresting people in schools and churches. It is time to add courthouses to that list. But top administration officials have vigorously defended courthouse arrests.
With no change to federal policy in sight, it is up to cities and states to push back. Elected officials must take seriously their legal obligation to keep courthouses accessible. In addition, the cities and states that own and operate most courthouses and ensure that no one uses their courts in a way that halts judicial business — protesters can’t block the doorway, bail bondsmen aren’t allowed to set up shop in the lobby — should do the same here for immigration agents.
ICE should no longer get free rein to tackle, handcuff and haul away immigrants, sending a message to others that they should think twice before trusting in the courts.
