Congress – Page 158 – immigrationcourtside.com

Positive News: A Bipartisan Group Of “Good Guy Pols” Work To Keep America Great!

https://www.washingtonpost.com/politics/8-politicians-who-will-make-you-feel-good-about-politics/2017/01/22/52e242e6-e0ba-11e6-879b-356663383f1b_story.html?hpid=hp_regional-hp-cards_rhp-card-politics%3Ahomepage%2Fcard&utm_term=.39f82245e7bf

Chris Cillizza writes in the Washington Post:

“The first 96 hours of President Trump’s tenure have been filled with claims, counterclaims, accusations of bias, outright falsehoods and lots of other things that make people hate politics, politicians and everything about Washington.

It’s enough even for me — a political junkie through and through — to wonder what we are even doing out here. It all feels terrible, unwatchable, nauseating.

But not all of politics — or all politicians — operates like this. There are lots of politicians doing it — by and large — right, working to represent their constituents and views with a modicum of humility and humor, not to mention a commitment to finding solutions, not just calling out problems.

It does the heart good to read about these folks. So here are a few politicians who should make you believe, again, in public service — even in these tempestuous times.”

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Find out who they are and more by clicking the link.

PWS

01/22/17

Uniting America, Trump Style — I Never Found Much Common Ground With George Will (Except, Sometimes, On Baseball) — But, I Woke Up The Morning After To Find We Were “Brothers!”

https://www.washingtonpost.com/blogs/post-partisan/wp/2017/01/20/a-most-dreadful-inaugural-address/?utm_term=.36d0d9ef923f

George Will writes in the op-ed page of today’s Washington Post:

“A most dreadful inaugural address
Trump’s inaugural address in three minutes

Play Video2:59

On Jan. 20, 2017, President Trump took the oath of office, pledging in his inaugural address to embark on a strategy of “America first.” Here are key moments from that speech. (Sarah Parnass/The Washington Post)

Twenty minutes into his presidency, Donald Trump, who is always claiming to have made, or to be about to make, astonishing history, had done so. Living down to expectations, he had delivered the most dreadful inaugural address in history.

Kellyanne Conway, Trump’s White House counselor, had promised that the speech would be “elegant.” This is not the adjective that came to mind as he described “American carnage.” That was a phrase the likes of which has never hitherto been spoken at an inauguration.

Oblivious to the moment and the setting, the always remarkable Trump proved that something dystopian can be strangely exhilarating: In what should have been a civic liturgy serving national unity and confidence, he vindicated his severest critics by serving up reheated campaign rhetoric about “rusted out factories scattered like tombstones across the landscape” and an education system producing students “deprived of all knowledge.” Yes, all.
But cheer up, because the carnage will vanish if we “follow two simple rules: Buy American and hire American.” “Simple” is the right word.

Because in 1981 the inauguration ceremony for a cheerful man from the American West was moved from the Capitol’s East Portico to its West Front, Trump stood facing west, down the Mall with its stately monuments celebrating some of those who made America great — Washington, Jefferson, Lincoln. Looking out toward where the fields of the republic roll on, Trump, a Gatsby-for-our-time, said: “What truly matters is not which party controls our government but whether our government is controlled by the people.” Well.

“A dependence on the people,” James Madison wrote, “is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” He meant the checks and balances of our constitutional architecture. They are necessary because, as Madison anticipated and as the nation was reminded on Friday, “Enlightened statesmen will not always be at the helm.”

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Right on, George, you “nailed” it this time!

And, he was by no means the only one. Perhaps predictably, the “headliner” on the lead Washington Post Editorial was: “In his inaugural address, Trump leaves America’s better angels behind.” Wow, how “presidential” does it get?

https://www.washingtonpost.com/opinions/in-his-inaugural-address-trump-leaves-americas-better-angels-behind/2017/01/20/d0f06378-df40-11e6-ad42-f3375f271c9c_story.html?utm_term=.a2e4249340c

Even the Wall Street Journal, by no means a shill for progressive liberalism, had to remark on President Trump’s complete failure to acknowledge the Constitutional limits on his power or to recognize that he will need to work with another Constitutional Branch of Government, the U.S. Congress (and, probably not just the Republicans there) to get things accomplished. And, in the spirit of the “new unity,” I acknowledge that the Wall Street Journal has always had a very clear understanding of the essential contributions of immigrants, regardless of status upon arrival, to America’s economic, social, and political success. Although I often disagree with its stances, I find that the Journal’s overall optimism about America and our future stands in stark contrast to the dark, sinister caricature of America set forth by President Trump yesterday.

Here is the link to the WSJ editorial:

http://www.wsj.com/articles/trumps-populist-manifesto-1484957386

Remarkably, President Trump appears to view himself as not just the representative of the American people (which, as President, he is) but also the very embodiment of the American people. That’s a very odd assertion for a leader who came into power while losing the popular vote by 2.8 million. Such appeals to narrow, totally self-interested nationalism are not new for world leaders past and present; however, they are seldom heard from leaders of true republican democracies. Does President Trump really understand how unbridled nationalism caused two disastrous world wars along with genocides and mass political exterminations during the past century?

Even more disturbing, President Trump’s definition of the “American people” seems inappropriately narrow: it excludes not only the majority of American voters who favored his opponent, but also doesn’t appear to fully acknowledge the existence of many Americans who can’t vote, such as children and, in particular, immigrants, regardless of status, whose interests, according to the U.S. Supreme Court, are entitled, along with those of other non-voters, to fair representation by our elected officials all the way up to our President. That’s why the Supreme Court upheld apportionment by total population, not just the population of U.S. citizens or registered voters. For example, the large number of electoral votes that President Trump picked up in Texas owes, in no small measure, to the large number of immigrants, legal and undocumented, who have fueled Texas’s overall population surge at the expense of other states in the East and Midwest with dwindling populations.

I try to remain optimistic. I approach the news each day with the hope, however slim, that I will discover some evidence that our President understands the real America out there and his responsibilities to represent and inspire all Americans, not just the minority who happen to agree with him. (I also heard and read enough “anecdotal” interviews with Trump voters after the election to know that some of them don’t necessarily share his dark and exclusive vision of America; they just want some change and hope that as a successful businessman President Trump will bring them and their communities at least some of the same material success that he has accumulated over a lifetime.)

But, as one of my “around 70” friends said to me recently, “Schmidt, at our ages we are what we are; what you see is pretty much what you get.” And, President Trump has been around even longer than we have. That’s something that might not bode well for the real America out there. We’ll just have to hope for the best, for all Americans.

Celebrate the really great America, every day!

Due process forever!

PWS

01/21/17

Obama DOJ’s Failed Priorities Leave Backlogs, “Frontlogs,” And Overall Docket Chaos As Legacy To United States Immigration Courts!

http://trac.syr.edu/whatsnew/email.170117.html

TRAC Immigration writes:

“(17 Jan 2017) The number of judges is still insufficient to handle the growing backlog in the Immigration Court. The court’s crushing workload reached a record-breaking 533,909 pending cases as the court closed out calendar year 2016, up 4.2 percent in just the last four months.
The problem is particularly acute for priority cases involving women with children according to the latest court data updated through the end of December 2016 and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. Pending priority cases for these families jumped by more than 20 percent (21.9%) in just the last four months. The backlog of these family cases alone totaled 102,342 last month, surpassing 100,000 cases for the first time.

The number of pending priority cases involving unaccompanied children also has continued to climb, reaching 75,582 at the December 2016. Together with family cases, this priority workload now accounts for fully one third (33%) of the court’s overall record backlog.”

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How totally sad and disappointing for those of us who care deeply about the due process mission of our United States Immigration Courts! The Obama Administration had eight full years to make the necessary reforms to put the United States Immigration Courts back on track to achieving their “due process vision.” Instead, alternating indifference to and interference with the due process mission of the Immigration Courts made a bad situation even worse. And, unlike the Article III Courts, the U.S. Immigration Courts are a “wholly-owned subsidiary” of the DOJ and the Administration. So, Republicans can’t be blamed for this one. In fact, recently the Republican-controlled Congress provided strong bi-partisan support for the Immigration Courts by authorizing and funding additional U.S. Immigration Judge positions (many of which, however, remained unfilled at the end of the Obama Administration).

We’ll see what happens next. But, if the results aren’t happy for due process, Democrats are going to have to shoulder much of the blame.

PWS

01/20/17

Another Installment In The Schmidt Making America Really Great Series: “Refugees And Due Process Make America Really Great” — Read My Speech From Last Night’s “Refugee Ball”

REFUGEES AND DUE PROCESS MAKE AMERICA REALLY GREAT

Remarks by Paul Wickham Schmidt,

Retired United States Immigration Judge

The Refugee Ball

Sixth & I Synagogue 600 I Street, N.W. Washington, DC 20001

Tuesday, January 17, 2017 from 5:00 to 9:00 PM

Good evening, everyone. I’m honored to be here. Lets have a big round of applause for Jason Dzubow and his staff for coming up with the idea and putting this together!

As you can probably tell, it was a battle getting into my “Jones Day Spring Prom Era Tux” tonight. As I walked out the door, my wife Cathy said: “Are you actually going to be able to breathe, let alone speak, in that thing?”

As a “regular” at the Arlington Immigration Court, Jason obviously is quite familiar with my habits. I noted that on the advance program he took the extreme precaution of not only putting me in a “10-minute slot” near the end of the program, but also adding in parentheses in big bold letters “10 minutes max.” So, I get the picture, Jason. I’m going to briefly address two things that make America great: refugees and due process.

I’m pleased to back in the old ‘hood, although it’s hard to recognize. For about twelve years in the 1970s and 1980s I worked in the General Counsel’s Office of the “Legacy INS” in the famous Chester Arthur Building – the only monument in Washington to our great 21^st President –— at 425 Eye St., NW, just down the street. And, one of my most memorable accomplishments during that time was being part of the “team” that helped the Refugee Act of 1980 become law. It was a chance to make a positive difference in America’s future, indeed in the world’s future, while coming into contact with some of the finest intellects in the business: David Martin, Alex Aleinikoff, Doris Meissner, the late Jerry Tinker, and the late Jack Perkins come immediately to mind. So, I have what you might call a “vested interest” in U.S. refugee and asylum system.

I worked with refugees and their cases almost every workday for more than 21 years during my tenure as a trial and appellate judge with the United States Immigration Courts. And, I’ll admit that on many of my “off days” the challenges, stories, human drama, triumph, and trauma of refugees and refugee law bounced around in my head, much to the dismay of my wonderful wife, Cathy.

Although I have the greatest respect and admiration for the inspiring life stories of refugees and their contributions to the United States, I have never, for even one second, wanted to be a refugee. Like all of the speakers tonight, I see refugees as a huge asset to our country. It says something about us as a nation that so many great people from all over the world want to make this their home and to contribute their talents, some of which were on display here tonight, to the greatness of America. So, to all of you out there who came as refugees or asylees, thank you for coming, for your service, and for your dedication to making our great country even greater.

The other topic I want to address briefly, that is near and dear to me personally, is the overriding importance of due process in our refugee and asylum system. Each of you who came as a refugee or asylee is here because an adjudicator at some level of our system carefully and fairly gave you a chance to state your claim, listened to and reviewed the support you provided for your claim, and made a favorable decision in your case.

For some of you, that decision was made by a DHS Refugee Officer or an Asylum Officer. Others of you had to rely on different levels of our system – a U.S. Immigration Judge, the Board of Immigration Appeals, or in some cases, a U.S. Court of Appeals to have your status granted. In all of these instances you received something very precious under our Constitution: due process of law.

Unfortunately, there currently is a “due process crisis” in our overloaded Immigration Court System. With over one-half million pending cases and waiting times of many years in some courts for final hearings to be held, our Immigration Court System is under intense pressure.

Sometimes, that results in approaches that generally have a favorable impact for individuals seeking protection. For example, grants of Temporary Protected Status and work authorization take many cases off the Immigration Court docket and legislation such as NACARA for Central Americans or HIRIFA for Haitians permanently resolves many cases favorably at the DHS without requiring a full-blown asylum hearing before an U.S. Immigration Judge.

But, when backlogs build up and enforcement pressures mount on our Government, less benign approaches and suggestions sometimes come to the fore. Adjudicators can be pressured to do counterproductive things like decide more cases in less time, limit evidence to shorten hearings, and make “blanket denials” based on supposed improvements in country conditions.

Other times, placing more individuals in civil immigration detention is looked at as a way of both expediting case processing and actively discouraging individuals from coming to the United States and making claims for refuge under our laws in the first place. Or, moving cases though the system so quickly that applicants can’t find pro bono lawyers to represent them is sometimes incorrectly viewed as an acceptable method for shortening adjudication times, thereby reducing backlogs.

Another method far too often used for discouraging asylum claims and inhibiting due process is placing asylum applicants in DHS Detention Centers, often privately operated, with “imbedded” Immigration Courts in obscure out of the way locations like Dilley, Texas and Lumpkin, Georgia where access to pro bono attorneys, family members, and other sources of support is severely limited or nonexistent.

When these things happen, due process suffers. So, while I’m always hoping for the best, it is critical for all of us in this room to zealously protect the due process rights of all migrants and insist on full due process being maintained, and, ideally, even enhanced. This includes both supporting individuals in the system by helping them obtain effective legal representation and, where appropriate, vigorously asserting the due process rights of refugees, asylum seekers, and other migrants in the Article III Federal Courts.

Only by insisting on due process for those already in the system will we be able to insure a fair and effective system for future refugees. And, welcoming and fairly treating future refugees is a key to making and keeping America great.

So, that’s my message: due process can’t be taken for granted! It must be nurtured, protected, expanded, and vigorously and proudly asserted! Thanks for listening, good luck, do great things, and due process forever!

(Rev. 01/18/17)

Rappaport — Trump Will Inherit A Mess In the U.S. Immigration Courts — Former GOP Hill Staffer Peter Levinson Tells Us In One Sentence Why The Current System Is “Built To Fail” — Can Anyone Fix this Mess Before It’s Too Late For Our Country And The Millions Whose Lives And Futures Depend Our Immigration Court’s Ability To Guarantee Fairness And Deliver Due Process? Read My Commentary — “We Need An Article I United States Immigration Court — NOW — Could The Impetus Come From An Unlikely Source?” — Below!

http://thehill.com/blogs/pundits-blog/immigration/314238-our-immigration-court-crisis-will-be-trumps-lasting-headache

We Need An Article I United States Immigration Court — NOW — Could The Impetus Come From An Unlikely Source?

By Paul Wickham Schmidt

Writing in The Hill, my friend Nolan Rappaport says:

“President-elect Donald Trump will have to deal with this situation before he can begin his promised enforcement program.
Realistically, he is going to have to consider asking Congress for a legalization program to reduce the undocumented population but it does not have to be the kind of legalization program that the Democrats have been proposing.”

That makes lots of sense to me. It will certainly help the Immigration Courts to quickly remove many “non priority” cases from the docket without compromising due process. But, it’s not a complete solution to the problems facing our Immigration Courts.

And, well-respected scholar, gentleman, and former GOP Hill Immigration Staffer Peter Levinsion succinctly tells us why just fiddling around with the administrative process within the DOJ won’t get the job done:

“”The Attorney General’s ability to review Board decisions inappropriately injects a law enforcement official into a quasi-judicial appellate process, creates an unnecessary layer of review, compromises the appearance of independent Board decision-making, and undermines the Board’s stature generally.””

Yup, folks, the U.S. Immigration Courts, including the all-important Appellate Division (the Board of Immigration Appeals, or the “BIA”), where hundreds of thousands of individuals are awaiting the fair, independent due process hearings guaranteed to them by the U.S. Constitution, are actually a wholly owned subsidiary of the chief prosecutor and law enforcement officer of the U.S. — the Attorney General.

Who wouldn’t like to own a court system where your only client — the U.S. Government — is an interested party in every single case? Who wouldn’t, indeed, unless that court system is in the sad circumstances of the current U.S. Immigration Court system — overworked, understaffed, over-prioritized, under-appreciated, laboring under outdated systems and technology abandoned by most other courts decades ago, and generally out of control. Other than that, what’s the problem?

The answer, as proposed by Nolan and Peter, and many others including the Federal Bar Association, the American Bar Association, the National Association of Immigration Judges, and many other nonpartisan judicial experts is an independent Article I (or even Article III) Immigration Court, including the Appellate Division.

“Impossible,” you say, “Congress and President Trump will never go for it. Nobody in the Washington ‘power curve’ could sell this idea.” But, I beg to disagree.

There is one person in Washington who could sell this long overdue idea to President Trump and legislators from both sides of the aisle. His name is Jeff Sessions. And, he’s about to become the next Attorney General of the United Sates.

Why would Attorney General Jeff Sessions suddenly become an advocate for due process and “good government?” Well, I can think of at least three obvious reasons.

First, being the “father” of an Article I Immigration Court would be a lasting positive contribution to our system of justice — not a bad legacy for a man who has been “on the wrong side of history” for much of his four decades of public service. Second, it would silence many of the critics who have doubted Sessions’s claims that he can overcome his “out of the mainstream” views of the past and protect and vindicate the rights of everyone in America, particularly in the sensitive areas of immigration and civil rights. Third, and perhaps most important, by creating an independent, credible, modern, due process oriented Immigration Court outside the Department of Justice, Sessions would pave the way for a more effective immigration enforcement strategy by the Administration while dramatically increasing the likelihood that removal orders will pass muster in the Article III Courts.

Sure sounds like a “win-win-win” to me. I’ve observed that the majority of the time, people act in accordance with their own best interests which frequently line up with the best interests of our country as a whole. Yes, there will always be a substantial minority of instances where people act against their best interests. Usually, that’s when they are blinded by an uncompromising philosophy or personal animus.

I can’t find much of the latter in Senator Sessions. He seems like a genuinely genial personality who makes it a point to get along with folks and treat them politely even when they disagree with his views. The former could be a problem for Sessions, however. Can he get beyond his highly restrictive outlook on immigration and adopt big-picture reforms? Only time will tell. But there is a precedent.

EOIR was actually created during the Presidency of Ronald Reagan. It was two “strong enforcement types,” then INS Commissioner Al Nelson and General Counsel “Iron Mike” Inman, Jr., part of the so-called “California Mafia,” who persuaded then Attorney General William French Smith to remove the Immigration Judges from the “Legacy INS,” and combine them with the Board of Immigration Appeals to form EOIR, with then-BIA Chairman David Milhollan as the first EOIR Director. Smith selected as the first Chief Immigration Judge a well-respected (even if not universally beloved) apolitical Senior Executive, William R. Robie, who had run the Department’s Office of Attorney Personnel Management and had a well-deserved reputation in the Washington legal community for “getting the trains running on time.”

It was one of the few times in my more that three decades in Government that I witnessed Senior Political Executives actually arguing for a needed transfer of functions and personnel out of their own agency. Traditionally, agency heads battled furiously to hang on to any piece of “turf,” no matter how problematic its performance or how tangental it was to the agency’s mission. But, Nelson and Inman, who were litigators and certainly no “softies” on immigration enforcement, appreciated that for victories in Immigration Court to be meaningful and to stand up on further judicial review, the Immigration Court needed to be a level playing field that would be credible to those outside the Department of Justice.

Unfortunately, the immediate improvements in due process and court management achieved by making the Immigration Courts independent from the “Legacy INS” have long since “played out.” The system within the DOJ not only reached a point of diminishing returns, but has actually been spiraling downward over the past two Administrations. Sadly, Nelson, Inman, Milhollan, and Robie have all died in the interim. But, it would be a great way to honor their memories, in the spirit of bipartisan reform and “smart government,” if an Article I Immigration Court were high on Attorney General Sessions’s agenda.

PWS

01/17/17

Good News For Dreamers? — Speaker Paul Ryan (R-WI) Recognizes Moral, Human, And Practical Imperatives In Retaining DACA!

https://www.washingtonpost.com/blogs/plum-line/wp/2017/01/13/in-remarkable-exchange-with-undocumented-mom-paul-ryan-exposes-cruelty-of-trumpism/?utm_term=.01a68f26de2a

As reported by Greg Sargent in his “The Morning Plum” in today’s Post, speaker Ryan had an exchange with an undocumented mother which got right to the heart of the human beings whose lives are in play in the DACA debate:

“In a remarkable exchange with an undocumented mother last night at a CNN town hall, House Speaker Paul Ryan strongly suggested to her that the revocation of protections for the DREAMers brought here as children will not be carried out. That’s newsworthy on its own. But beyond that, the exchange also exposed the cruelty of stepped-up mass deportations for many other low-level undocumented offenders:

It’s a powerful moment, but the policy details lurking underneath the emotion are also extremely important. A woman brought here illegally as an 11-year-old child “through no fault of her own,” as CNN’s Jake Tapper put it, asked whether she and “many families in my situation” should face deportation. “No,” Ryan responded. After noting her love for her daughter, Ryan added:

“What we have to do is find a way to make sure that you can get right with the law. And we’ve got to do this so that the rug doesn’t get pulled out from under you and your family gets separated. That’s the way we feel. And that is exactly what our new, incoming president has stated he wants to do….I’m sure you’re a great contributor to [your] community.”

This might be a reference to the fact that Trump recently seemed to back off his pledge to reverse President Obama’s executive action protecting DREAMers from deportation, saying instead that “we’re going to work something out” for them. Indeed, under subsequent questioning from Tapper, Ryan explicitly said he and the Trump transition team were working on a “good, humane solution” for the hundreds of thousands currently benefiting from that executive action.”

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I hope that Speaker Ryan, a powerful person on the Washington scene, will be able to follow through on persuading President Trump and his GOP Congressional colleagues to “do the right thing” here. Combined with soon to be DHS Secretary Gen. John Kelly’s non-polemical statements on DACA and enforcement priorities, there seems to be some hope of a reasonable solution to this difficult human situation.

PWS

01/13/17

House GOP Ramps Up Assault On Our Government — Bill Would End Merit Civil Service And Reinstate Spoils System And Political Hackery — “Draining The Swamp?” — Heck No, The Alligators Are Crawling Out Of The Swamp And Threatening To Chew Up The Foundations Of Our Democracy!

https://www.washingtonpost.com/news/powerpost/wp/2017/01/12/new-feds-could-be-fired-for-no-cause-at-all-under-planned-legislation/?hpid=hp_regional-hp-cards_rhp-card-fedgov:homepage/card&utm_term=.ceb404b7559d

Here’s what Post Fed columnist Joe Davidson had to say about Rep. Todd Rokita’s (R-IN) bill to stifle the Federal workforce:

“Rokita’s bill makes the meaning of at-will status clear: “Such an employee may be removed or suspended, without notice or right to appeal, from service by the head of the agency at which such employee is employed for good cause, bad cause, or no cause at all.”

Think about that.

Political appointees could fire civil servants for “no cause at all.”

That’s dangerous.

Civil service procedures can be long and frustrating, but they are designed to guard against arbitrary actions. Federal law governing the workforce permits disciplinary actions for “such cause as will promote the efficiency of the service.” At odds with the “at-will” power Rokita advocates, among the government’s long-standing merit system principles is one designed to “protect employees against favoritism, political coercion and arbitrary action and prohibit abuse of authority.”

The protections are not just there to protect federal employees. In fact, the most important beneficiaries of these protections are the nation’s citizens, taxpayers and residents. Civil service protections are designed to protect everyone against favoritism by political officials and politicized agencies. While political appointees carry out policies designed by elected leaders, federal agencies are charged with serving everyone without regard to their political affiliations. Allowing political officials to fire feds for no reason seriously damages the principle of a nonpartisan civil service.

Rokita introduced the legislation last year and said he plans to offer substantially the same measure soon.

Rep. Elijah E. Cummings (D-Md.), the top Democrat on the Oversight Committee, called the bill a “shortsighted, blatant attempt to undermine a merit-based workforce that would … usher in a return to the spoils system and mean the end of a professional, non-partisan federal workforce dedicated to serving everyone, not just political allies.”

Rokita argued that at-will employment is how the rest of America works. But the federal government is not just another enterprise. The government is a monopoly providing services, many involving life and death, to and funded by all Americans. They cannot take their business elsewhere if treated badly because they are blue when the red team is in power — or vice versa.”

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So, while middle class Feds works hard every day to keep Social Security, health care, law enforcement, justice, transportation safety, financial accountability, recreation, education, etc. flowing out to the public at large, the guys who are supposed to be in charge of the “big picture” spend their time dissing, undermining, attacking and trying to create a system where tax dollars can be handed out to their cronies in a non-merit-based spoils system.

I remember when I was growing up, Federal Government employment was looked at as a model, with merit based selection and career advancement, decent, predictable benefits, reasonable, but by no means extravagant, pay, good working conditions, and overall teamwork between civil servants and their political leaders that should set an example for state and local governments and other American employers to emulate. Today’s GOP advocates a “race to the bottom” approach whereby the Feds should adopt the least attractive practices of private industry to drive the best people into the private sector, thereby leaving the remaining jobs for GOP politicos to fill with their chosen hacks. And this is “progress?”

PWS

01/13/17

Senator Grassley Asks About BIA Review At Sessions’s Confirmation Hearing

http://immigrationimpact.com/2017/01/12/jeff-sessions-affirms-anti-immigrant-views-confirmation-hearing/

Joshua Briesblatt over at Immigration Impact gives us this interesting nugget from the Sessions Confirmation hearing:

“Lastly, Senator Grassley asked Senator Sessions if he would review all the decisions coming out of the Board of Immigration Appeals (BIA). The Attorney General has the authority to unilaterally revoke decisions of the BIA. Much of current asylum law is based on decisions by the BIA including those that determine what groups must receive protection from persecution in their home. As Attorney General, he would have the authority to make asylum vastly more difficult for those around the world who flee to the United States to avoid violence. Senator Sessions said that he “does appear” to have that authority and that he has “not thoroughly studied” the issue.”

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Interesting. Was Chairman Grassley (R-IA) actually trying to suggest that this is something Senator Sessions should undertake as AG? Actually, I think that if and when he gets around to studying it, AG Sessions will find that he does, in fact, have authority to review any BIA decision. But, if he reviewed all of them — that would be about 35,000 per year — I don’t think he’d have much time left over for anything else, including sleeping and eating. Most AG’S review, at most, one or two BIA decisions per year.

Still, it indicates a fundamental due process problem with having the Immigration Courts and the BIA lodged in the Department of Justice. As the chief law enforcement officer and litigator for the U.S., the Attorney General has no business reviewing any BIA decision — it’s a colossal conflict of interest, even by today’s evolving ethics standards. That’s why the Immigration Court System must, at some point, become truly independent which means removing it from the DOJ and establishing it as some type of independent entity — an independent agency or and Article I or Article III Court. Until then, true due process in the Immigration Courts may be elusive.

Notably, notwithstanding lots of recent publicity about the exploding docket and the problems crippling the nation’s Immigration Courts, neither Chairman Grassley nor Senator Sessions seemed to be particularly “up” on the issue or to have much idea of the reality of life in the Immigration Courts. That’s not very encouraging.

PWS

01/13/17

Senator Cory Booker Is Skeptical That Jeff Sessions Will “Seek Justice For All” As AG!

https://www.washingtonpost.com/world/national-security/jeff-sessions-has-made-his-case-to-be-the-attorney-general-now-the-senate-will-hear-from-supporters-and-detractors/2017/01/10/5683ce24-d796-11e6-9a36-1d296534b31e_story.html?hpid=hp_rhp-top-table-main_sessions-1225p%3Ahomepage%2Fstory&utm_term=.60a27c7babe2

In an unprecedented move, Senator Cory Booker (D-NJ) became the first U.S. Senator ever to testify against a colleague during a confirmation hearing. In the above account from the Washington Post, Senator Booker charged that:

“If confirmed, Sen. Sessions will be required to pursue justice for women, but his record indicates that he won’t,” Booker said. “He will be expected to defend the equal rights of gay and lesbian and transgender Americans, but his record indicates that he won’t. He will be expected to defend voting rights, but his record indicates that he won’t. He will be expected to defend the rights of immigrants and affirm their human dignity, but the record indicates that he won’t.”

The Senate Judiciary Committee also heard testimony from a number of Sessions’s supporters, including former Attorney General Michael Mukasey, who said, according to the Post:

“Sessions is “thoroughly dedicated to the rule of law and the mission of the [Justice] department.”

The Post also reported that the Committee heard testimony from Oscar Vasquez, a former undocumented individual, who expressed the fear of many so-called “Dreamers” that as Attorney General Sessions will support the revocation of their protected status and use the information that they voluntarily furnished to the USCIS to institute removal proceedings.

During yesterday’s hearing, Senator Sessions took a somewhat ambiguous position on Dreamers. He indicated he would have no problem if President Trump decided to revoke the Executive Order establishing the DACA program, while at the same time acknowledging that there was no plan in the offing to actually place Dreamers into removal proceedings.

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Notwithstanding Senator Booker’s reservations, and those of many others in the civil rights, human rights, women’s rights, and immigrants’ rights communities, Senator Sessions will be the next Attorney General. At best, therefore, Senator Booker’s testimony was a “marker” in the event that once confirmed, Senator Sessions abandons his promise to seek justice for all Americans (which includes lawfully resident immigrants and undocumented individuals residing in the United States) and returns to the much narrower view of civil rights, human rights, women’s rights, and immigrants’ rights that he has often expressed and defended during his long Senate career.

It’s a tall order for Senator Sessions to rise above the limitations of his past and take a broader, more inclusive, more humane view of the U.S. legal system. But, for the sake of all Americans, I sincerely hope he can pull it off.

PWS

01/11/17

Sessions Gives Few Specifics About Immigration Role During First Day of Hearings — Offers Neither Support Nor Solution For Dreamers, But Doesn’t Consider Them Removal Priorities — Defends Hard Line Positions, But Says He Would Like To Work Together On Solving Difficult Problem In Compassionate Manner

http://www.huffingtonpost.com/entry/jeff-sessions-dick-durbin-immigration_us_58751aa5e4b02b5f858b5c4a

“The attorney general is not in charge of most deportation efforts ― that falls to the Department of Homeland Security. But should he be confirmed, Sessions would still have plenty of power to affect immigration matters, from shaping the resources immigration courts receive and how they make decisions to pressuring local law enforcement to assist in deportation efforts.

Sessions said that Durbin was “wrong” about what his record indicates he’d do as attorney general, but he also defended his support of limiting immigration and increasing deportations.

“I believe the American people spoke clearly in this election,” Sessions said. “I believe they agreed with my basic view and I think it’s a good view, a decent view, a solid legal view for the United States of America that we create a lawful system of immigration that allows people to apply to this country and if they’re accepted, they get in; if they’re not accepted, they don’t get in.”

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Senator Sessions seemed neither sympathetic to, nor understanding of, the difficult situation of “Dreamers.” On the plus side, he seemed to recognize that the Dreamers, and similarly situated individuals who have successfully integrated into the community of the United States, probably aren’t going anywhere, but offered no specific suggestions as to how they should be treated if DACA is withdrawn.

I was somewhat encouraged by the Senator’s recognition of the complexity of the immigration issue — something many enforcement-oriented individuals refuse to acknowledge — the need to work together to solve problems, ideally through legislation, and his use of the term “compassionate.” He also seems to appreciate that being the Attorney General of the United States is a markedly different role than representing Alabama in the Senate — it’s a bigger picture with a much border, more diverse constituency.

As far as I can tell from reading press accounts, Senator Sessions was neither asked about nor did he reveal his plans for what is probably going to be his biggest problem when he assumes the leadership of the Department of Justice — the total meltdown of the U.S. Immigration Court System.

PWS

01-11-17

Post Editorial Slams Total Due Process Meltdown In U.S. Immigration Courts! Why We Need An Independent Article I Immigration Court — Now!

https://www.washingtonpost.com/opinions/americas-immigration-courts-are-a-diorama-of-dysfunction/2017/01/09/38c59cf6-ceda-11e6-b8a2-8c2a61b0436f_story.html?utm_term=.2597096ea1d8

“The nation’s 58 immigration courts, administered not by the judiciary but by the Justice Department, are places of Dickensian impenetrability, operating under comically antiquated conditions. Case files are scarcely digitized. Clerks are outmatched by mountains of paper files. Translators struggle to convey evidence and legal concepts across linguistic and cultural barriers.
Disgracefully, wild disparities in outcomes and legal standards characterize the various courts, meaning that asylum seekers who appear before immigration judges in Atlanta face almost impossibly long odds and are generally ordered deported, while those in New York are usually granted relief and allowed to remain in the country.

In these courts, the idea of justice itself is so degraded, and the burnout rate so high, that some immigration lawyers have simply thrown in the towel. One of them, movingly profiled by The Post’s Chico Harlan, got sick of the charade and finally quit. “I genuinely believed these people could die if they’re sent back” to their home countries, said Elizabeth Matherne, who once represented asylum seekers. “And you’re talking to somebody” — the judge — “who is not listening.”

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Why We Need An Independent Article I Immigration Court — Now!

By Paul Wickham Schmidt

Not a pretty picture of Due Process in America, especially for a Court System whose noble, but forgotten, “Vision” is supposed to be “though teamwork and innovation be the world’s best administrative tribunals, guaranteeing fairness and due process for all.”

Undoubtedly, this downward spiral into judicial dysfunction started with the politically-motivated manipulation of the Immigration Courts and the selection system for Immigration Judges and Board of Immigration Appeals Members during the Bush Administration.

But, the Obama Administration had eight years to clean up this mess. Not only has it failed to act, but in some ways has made it even worse. Even in the disastrous Bush years, the backlog of pending cases never approached today’s level of more than 530,000, and it’s growing every day.

The Justice Department has no plausible plan for dealing with this morass, which directly affects the lives and futures of millions of “real people.” Nor is there even a rudimentary plan in place to implement an e-filing system — a staple of virtually every other Federal Court System. Under the Department of Justice, the Executive Office for Immigration Review (“EOIR”), which is charged with administering the Immigration Courts, began “studying” the process for e-filing more than 15 years ago — so far, without achieving any visible success.

Yes, Congress has failed to pass practical, badly needed reforms of the immigration system, unnecessarily compounding the Immigration Courts’ burdens. And, yes, the Congressional approach to appropriating needed resources for the Immigration Courts has been inconsistent and all too often has lagged far beyond funding for immigration enforcement.

But, for the most part, the Immigration Courts are the responsibility of the Executive Branch and the Justice Department. The structure, supervision, and operation of the Immigration Courts is almost entirely a matter of Justice Department regulations. Judicial selections do not have to go through the cumbersome Senate confirmation process.

The Justice Department has shown neither enthusiasm nor the ability to promptly fill existing judicial vacancies through a transparent merit selection system, nor has sufficient attention been paid to locating the necessary courtroom space or planning for painfully obvious expansion needs. Even if all the existing judicial vacancies were filled, as of today there is no place to put the extra Immigration Judges. Effective judicial administration, never a point of expertise for the Justice Department, has completely disintegrated over the past decade and one-half under Administrations of both parties and a succession of Attorneys General who simply failed in their duty to run a fair, efficient, highly professional Immigration Court system.

We have not yet seen the Trump Administration’s and Attorney General Sessions’s plans for how to restore justice to the Immigration Court system. But, the preliminary rhetoric isn’t encouraging — lots of tough talk about immigration enforcement, but neither acknowledgement of nor emphasis on the accompanying equally important need for achieving and protecting due process in the Immigration Courts.

After more than three decades in the Justice Department, the Immigration Courts have not developed in a way that fulfills their essential role in insuring fairness and guaranteeing due process in the removal hearing process. Waiting for the Justice Department to appropriately reform the system is like “Waiting for Godot.” It’s more than time for bipartisan action in Congress to remove the Immigration Courts from the Department of Justice and create an independent, well-functioning Article I Immigration Court. Only then, will the Immigration Courts be able to achieve their “noble vision” of “through teamwork and innovation be the world’s best tribunals guaranteeing fairness and due process for all.”

PWS

01/10/17

House GOP Pushes To Punish Sanctuary Cities — DC Establishes Legal Defense Fund To Aid Migrants

http://www.huffingtonpost.com/entry/gop-sanctuary-cities-funds_us_58730858e4b02b5f85898d46

“House Republicans are moving swiftly to punish so-called sanctuary cities, and have already introduced at least three measures to block federal funds for municipalities or college campuses that limit their cooperation with federal officials on deporting undocumented immigrants.

Rep. Lou Barletta (R-Pa.) introduced HR 83, known as the Mobilizing Against Sanctuary Cities Act, last week to strip federal funding from such jurisdictions. As mayor of Hazleton, Pennsylvania, Barletta gained a national profile for approving ordinances aimed at driving out undocumented immigrants, most of which were found unconstitutional.

“Too many mayors and local governments think that they are above federal law and place their own ideology ahead of the safety of their residents,” he told Hazleton’s Standard-Speaker. “One of the principal duties of the government is to protect its citizens, and the idea of sanctuary cities runs completely counter to that responsibility.”

Supporters of sanctuary cities argue, however, that they improve public safety by making undocumented people more willing to come forward if they witness or are victims of a crime, and sbay it can be costly or even illegal to hold arrestees longer based on Immigration and Customs Enforcement’s requests.”

Meanwhile, the Washington Post reports that DC will,be setting up a Legal Defense Fund for migrants residing in the District:

https://www.washingtonpost.com/local/dc-politics/dc-will-go-beyond-sanctuary-create-legal-defense-fund-for-illegal-immigrants/2017/01/09/0d6c7adc-d68e-11e6-9f9f-5cdb4b7f8dd7_story.html

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In a previous post, Nolan Rapport suggested that setting up a Legal Defense Fund not only helps the system function but also represents a “smarter approach” to helping migrants than a policy of non-cooperation with Federal immigration enforcement. Here’s a link to Nolan’s post:

http://wp.me/p8eeJm-4W

PWS

01/09/17

Fears Grow Among U.S. Civil Servants In The Face of Overt Hostility and Disrespect From Incoming Administration And Congress — In Bizarre Twist, U.S. Government Threatens To Attack And Dismember Itself! Who Will Be Left To Carry Out Deportations, Bust Druggies, Or Support The Military? Not Everything Can Be “Outsourced” To Your Buddies!

https://www.washingtonpost.com/local/fear-among-federal-workers-flourishes-as-they-face-a-hostile-trump-presidency/2017/01/09/7bf558fc-d67a-11e6-9f9f-5cdb4b7f8dd7_story.html?utm_term=.6708ec49824e&wpisrc=nl_buzz&wpmm=1

Petula Dvorak writes in her local column in the Washington Post:

“This workforce that’s supposedly as bloated and unwieldy as the Sta Puft Marshmallow Man? It was about the same size in 1950. (You know, around the time so many folks think America was great?)

It also has been slowly shrinking and is now a little smaller than it was under Ronald Reagan.

So let’s stop pretending that this hostility toward federal workers is about cost-cutting.

Trump already has promised a huge building up of the military — at least 500,000 more in the Army alone. So money is not something that the federal government is looking to save.

This new Washington (or New York on the Potomac) has plenty of plans for our taxpayer dollars.

Trump is promising lots of nonmilitary jobs.

There’s The Wall! Imagine the work that’s going to create.

Construction workers, managers to deal with thousands of miles of worksite along the U.S.-Mexico border, paper pushers to get all the materials sorted and the laborers paid. Of course, that money will probably wind up going to private contractors, the guys who command $500 billion in taxpayer money every year, but aren’t counted as part of the federal workforce.

Maybe The Wall isn’t going to cost U.S. taxpayers anything because the workers aren’t really going to get paid. Just ask the guys at Magnolia Plumbing D.C. or AES Electric in Laurel, Md.

There’s also the promised deportation of about 3 million to 4 million undocumented immigrants. Imagine the federal workers required for that effort, given the current backlog of 500,000 deportation cases.”

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I have previously blogged about the unprecedented (at least during my 43+ years in Washington) hostility toward Federal career civil servants being promised by the Trump Administration and the GOP-controlled Congress: http://wp.me/p8eeJm-5A

http://wp.me/p8eeJm-4O

PWS

01/09/17

Are We On The Verge Of A “Winner Take All” Supreme Court? Will Senate Control Be Required For Future Presidents To Appoint New Justices?

https://www.bloomberg.com/view/articles/2017-01-05/the-incredible-shrinking-supreme-court

Noah Feldman, columnist and Harvard Law Professor, writes in BloombergView:

“If the incredible shrinking Supreme Court sounds unimaginable, that should count as a reason to expect the Senate Republicans to break the filibuster. But an eight-justice court seemed pretty unimaginable when Justice Scalia died last February — and it’s become a reality, at least for the moment.

Even if the filibuster is overcome, there already seems to have been long-term change in the way Supreme Court seats are filled. If the Democrats had a majority in the Senate today, it seems entirely possible that they would be saying they’d refuse to vote on Trump’s nominee for the next four years. Some version of winner-take-all confirmation politics may already be with us.”

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After reading Professor Feldman’s article, seems to me that a very plausible scenario is that if the Democrats try to block a Trump nominee, the Republicans will retaliate by extending the “nuclear option ” to Supreme Court appointments, thereby allowing Trump nominees to get through the confirmation process with a “bare majority” vote of 51. The Republicans now have 52 votes in the Senate.

Thereafter, it’s hard to imagine circumstances under which a President whose party is in the Senate minority will be able to fill any Supreme Court vacancies. Additionally, the minority party (of course, Democrats at present) will lack “leverage” to force a President to appoint so-called “mainstream” candidates. As long as all, or almost all, of the Senators in the majority party are willing to support the candidate, he or she will be confirmed, no matter how “extreme ” his or her views might be considered by the minority.

This would 1) make the Supreme Court an even bigger issue in Presidential and Senatorial elections than it is now (and it’s big right now); and 2) lead to a more polarized Supreme Court, since the only limit on a President would be his or her ability to “sell” the nominee to his own party.

Finally, I don’t see any reason why this development would stop at the Supreme Court. Why wouldn’t the Senate majority party block a President from the opposing party from appointing Federal Circuit Court and even U.S. District Judges, hoping to be able to “run the table” and fill huge numbers of vacancies if they can win back the Presidency?

PWS

01/07/17

Post Editorial Decries GOP’s Unprovoked Attack On Civil Service Merit System!

https://www.washingtonpost.com/opinions/a-resurrected-house-rule-threatens-open-season-on-the-civil-service/2017/01/06/89881132-d448-11e6-a783-cd3fa950f2fd_story.html?utm_term=.a8262ed56f2c

“The move follows efforts by President-elect Donald Trump’s transition team to identify employees in the Energy Department who work on climate change and jobs in the State Department devoted to gay and women’s rights. The combination of events underscores the inherent danger. Competence and performance — not adherence to ideology — should be the basis for federal employment. That is why the civil service replaced the system of political spoils.

If members of Congress don’t like particular programs — Mr. Griffith is apparently peeved by a federal program that pays for the care of wild horses on federal land in the West — they can choose not to appropriate funds to implement them. If they want to change civil-service rules to target poor performance or reward good work, they have that power too. If they are incapable of properly exercising these constitutional authorities, maybe it is their salaries that should be slashed to $1.”

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In the previous blog posting, http://wp.me/p8eeJm-5v Jason Dzubow (“The Asylumist”) noted the falling morale and apprehension among civil servants involved in immigration enforcement and adjudication. He urged them to to remain at their posts and continue working for the ideals of fair and competent administration of some very difficult laws and overall “good government.”

But, as noted here and in my previous blog, http://wp.me/p8eeJm-4O these could be challenging times for the dedicated public servants whose hard work keeps our immigration system afloat and our Government functioning, in light of the unbridled hostility toward our own Government shown by the GOP at both the Congressional and Administration levels.

I agree with Jason. I hope that the numerous great folks that I came in contact with during my many years of public service “hang in there” and continue to strive to “do the right thing” every day. But, that’s easy for me to say from my current vantage point as a retiree. It’s much harder for those who are actually trying to get the job done with neither support nor appreciation from those who should be most grateful.

As an Immigration Judge at both the trial and appellate levels, I was often struck with how the fundamental difference between the countries people were fleeing and the United States was honest, reliable government committed to the common good. In most repressive countries, the government at all levels was staffed by political cronies or supporters of the ruler who viewed their government positions as a license to extort, steal, abuse, and even sometimes kill, those “on the outs” with the powers the be. Many applicants were skeptical of all governments, including our own. The concept that government officials would treat them fairly and listen to their claims with an open mind, rather than just seeking to carry out a political or personal agenda, simply wasn’t in their sphere of experience.

The Federal Civil Service isn’t perfect. It can and should be improved. But, it remains one of the “crown jewels” of our democratic republic. The hostility of some of those who comprise the political arms of our government to the concept and operation of a merit-based, nonpartisan, nonpolitical Civil Service should be of deep concern to all of us.

PWS

01/07/16

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