"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
The last time Sandra Rodríguez saw her son Gerson, she bent down to look him in the eye. “Be good,” she said, instructing him to behave when he encountered Border Patrol agents on the other side of the river in the United States, and when he was reunited with his uncle in Houston.
The 10-year-old nodded, giving his mother one last squinty smile. Tears caught in his dimples, she recalled, as he climbed into a raft and pushed out across the Rio Grande toward Texas from Mexico, guided by a stranger who was also trying to reach the United States.
Ms. Rodríguez expected that Gerson would be held by the Border Patrol for a few days and then transferred to a government shelter for migrant children, from which her brother in Houston would eventually be able to claim him. But Gerson seemed to disappear on the other side of the river. For six frantic days, she heard nothing about her son — no word that he had been taken into custody, no contact with the uncle in Houston.
Finally, she received a panicked phone call from a cousin in Honduras who said that Gerson was with her. The little boy was crying and disoriented, his relatives said; he seemed confused about how he had ended up back in the dangerous place he had fled.
Hundreds of migrant children and teenagers have been swiftly deported by American authorities amid the coronavirus pandemic without the opportunity to speak to a social worker or plea for asylum from the violence in their home countries — a reversal of years of established practice for dealing with young foreigners who arrive in the United States.
The deportations represent an extraordinary shift in policy that has been unfolding in recent weeks on the southwestern border, under which safeguards that have for decades been granted to migrant children by both Democratic and Republican administrations appear to have been abandoned.
Historically, young migrants who showed up at the border without adult guardians were provided with shelter, education, medical care and a lengthy administrative process that allowed them to make a case for staying in the United States. Those who were eventually deported were sent home only after arrangements had been made to assure they had a safe place to return to.
That process appears to have been abruptly thrown out under President Trump’s latest border decrees. Some young migrants have been deported within hours of setting foot on American soil. Others have been rousted from their beds in the middle of the night in U.S. government shelters and put on planes out of the country without any notification to their families.
The Trump administration is justifying the new practices under a 1944 law that grants the president broad power to block foreigners from entering the country in order to prevent the “serious threat” of a dangerous disease. But immigration officials in recent weeks have also been abruptly expelling migrant children and teenagers who were already in the United States when the pandemic-related order came down in late March.
Since the decree was put in effect, hundreds of young migrants have been deported, including some who had asylum appeals pending in the court system.
Some of the young people have been flown back to Central America, while others have been pushed back into Mexico, where thousands of migrants are living in filthy tent camps and overrun shelters.
In March and April, the most recent period for which data was available, 915 young migrants were expelled shortly after reaching the American border, and 60 were shipped home from the interior of the country.
During the same period, at least 166 young migrants were allowed into the United States and afforded the safeguards that were once customary. But in another unusual departure, Customs and Border Protection has refused to disclose how the government was determining which legal standards to apply to which children.
“We just can’t put it out there,” said Matthew Dyman, a public affairs specialist with the agency, citing concerns that human smugglers would exploit the information to traffic more people into the country if they knew how the laws were being applied.
On Tuesday, the Trump administration extended the stepped-up border security that allows for young migrants to be expelled at the border, saying the policy would remain in place indefinitely and be reviewed every 30 days.
Chad F. Wolf, the acting secretary of the Department of Homeland Security, said the policy had been “one of the most critical tools the department has used to prevent the further spread of the virus and to protect the American people, D.H.S. front-line officers and those in their care and custody from Covid-19.”
An agency spokesman said its policies for deporting children from within the interior of the country had not changed.
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Read the rest of Caitlin’s article at the above link.
Thanks to my friend, the amazing “Due Process Warrior Queen,” 👸🏼 👑 ⚔️🛡Deb Sanders for bringing Caitlin’s article to my attention.
Kids suffer, the law is ignored, corrupt bureaucrats like Chad Wolf continue to wander around spreading lies. There is no evidence that any of those kids “rocketed” out of the country in violation of laws and human rights had coronavirus.
And if they did, returning them to a poorer nation with even fewer resources to fight the pandemic without taking proper precautions and safeguards would be totally irresponsible, inhumane, and ultimately counterproductive. What goes around, comes around!
This has absolutely nothing to do with “protecting” the U.S. from coronavirus (something that Trump otherwise largely eschews) and everything to do with advancing a racist, xenophobic, White Nationalist political agenda designed to appeal to a relatively narrow slice of Trump voters. So, how does this pass “legal muster?” Clearly, “It doesn’t!”
How do folks like Trump, Miller, Wolf, and their accomplices get away with it? Easy when GOP legislators and life-tenured Federal Judges look the other way rather than forcing the regime to comply with the rule of law and simple human decency.
Congressional letters, particularly to a lawless regime, are useless unless accompanied by veto-proof legislation. Courts that fail to take a unified “Just Say No” approach to Trump’s systemic abuses, all the way up to the Supremes, and which rule without holding the officials and lawyers masterminding these abuses legally accountable are basically feckless!
These are not difficult questions from either a legal or moral standpoint. What the Administration is doing is wrong! Period! Those who say otherwise are wrong! Period!
The Trump regime disguises their vicious attacks on human dignity and the rule of law as bogus “legal issues.” And, the Federal Courts encourage them by going along with the charade. This is no “normal Executive.” It’s a “rogue regime” and must be treated as such!
The failure to end these disgraceful practices and hold those who are abusing their authority accountable says much about the current state of our democratic institutions, justice system, civil servants, and the inadequacy and moral complacency of many of our current GOP legislators and Federal Judges.
This November, vote like your life and your humanity depends on it! Because it does!
Born in 1993, Marica was raised in Maryland and earned a B.A. in Sociology from Rice University. Marica worked in the past as a paralegal at Hudson Legal in Ann Arbor and most recently explored eGovernance based infrastructure projects on the Dorot Fellowship. In the past, she received the Wagoner Fellowship, from the Higher School of Economics in Saint Petersburg, Russia, where she completed a year long ethnographic research project. She is fluent in Russian and proficient in Spanish and Hebrew.
Hon. Paul Wickham Schmidt U.S. Immigraton Judge (Ret.) Adjunct Professor, Georgetown Law Blogger, immigrationcourtside.com
Judge (Retired) Paul Wickham Schmidt
Judge Schmidt was appointed as an Immigration Judge at the U.S. Immigration Court in Arlington, Virginia, in May 2003 and retired from the bench on June 30, 2016. Prior to his appointment as an Immigration Judge, he served as a Board Member for the Board of Immigration Appeals, Executive Office for Immigration Review, in Falls Church, VA, since February 12, 1995. Judge Schmidt served as Board Chairman from February 12, 1995, until April 9, 2001, when he chose to step down as Chairman to adjudicate cases full-time. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), extending asylum protection to victims of female genital mutilation.He received a Bachelor of Arts degree from Lawrence University in 1970 (cum laude), and a Juris Doctorate from the University of Wisconsin School of Law in 1973 (cum laude; Order of the Coif). While at the University of Wisconsin, he served as an editor of the Wisconsin Law Review. Judge Schmidt served as acting General Counsel of the former Immigration and Naturalization Service (INS) (1986-1987; 1979-1981), where he was instrumental in developing the rules and procedures to implement the Immigration Reform and Control Act of 1986. He also served as the Deputy General Counsel of INS for 10 years (1978-1987). He was the managing partner of the Washington, DC, office of Fragomen, Del Rey & Bernsen (1993-95), and also practiced business immigration law with the Washington, DC, office of Jones, Day, Reavis and Pogue from 1987-92 (partner, 1990-92). Judge Schmidt also served as an adjunct professor of law at George Mason University School of Law in 1989 and at Georgetown University Law Center (2012-14; 2017–). He has authored numerous articles on immigration law, and has written extensively for the American Immigration Lawyers Association. Judge Schmidt is a member of the American Bar Association, the Federal Bar Association, and the Wisconsin and District of Columbia Bars. Judge Schmidt was one of the founding members of the International Association of Refugee Law Judges (“IARLJ”).In June 2010, Judge Schmidt received the Lucia R. Briggs Distinguished Achievement Award from the Lawrence University Alumni Association in recognition of his notable career achievements in the field of immigration law. Since retiring, in addition to resuming his Adjunct Professor position at Georgetown Law, Judge Schmidt has established the blog immigrationcourtside.com, is an Americas Vice President of the IARLJ, serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects, as well as speaking, lecturing, and writing in forums throughout the country on contemporary immigration issues, due process, and U.S. Immigration Court reform.
So, what now? Will the intentional cruelty, “Dred Scottification,” false narratives, and demonization of “the other,” particularly women, children, and people of color, by presidential advisor Stephen Miller and his White Nationalists become the “future face” of America? Or, will “Our Better Angels” help us reclaim the vision of America as the “Shining City on the Hill,” welcoming immigrants and protecting refugees, in good times and bad, while “leading by example” toward a more just and equal world?
The Refugee Act of 1980 feels like a huge success…for a short amount of time. The first test of the act comes when Fidel Castro opens Cuba’s borders (and Cuba’s prisons) and hundreds of refugees arrive on Florida shores. The Mariel Boatlift Crisis forced the U.S. government to realize that not all asylum processing can happen abroad. Unfortunately, it also left the public with the impression that “Open arms and open hearts” leads only to crisis.
The year is 1980 and the war in Vietnam has displaced hundreds and thousands of people. The system of presidential parole doesn’t seem like it can handle the growing global refugee crisis. What is the answer to this ballooning need? Process most refugees abroad to streamline their entrance to the U.S. Codify asylum in the U.S. in legislation that puts human rights first. Increase prestige, improve overall government coordination, provide a permanent source of funding, and institutionalize refugee resettlement programs and assimilation. Have Ted Kennedy be the face of the effort. For once, things are actually working out for humanity.
In the 1990s, Judge Schmidt was BIA Chairman Schmidt. With the support of then Attorney General Janel Reno, he aspired to “open up” appellate judgeships to all immigration experts, and to lead the BIA to much-needed progressive steps towards humane asylum law, better scholarship, improved public service, transparency, and streamlined efficiency to reduce the backlog. However, progress seemed to stall at several points and certain types of behavior tended to be rewarded. The Board sits at the intersection between a court and an agency within the administration, which means its hurdles come both from structural issues with the U.S. Justice System and with entrenched government bureaucracy.
In the 1980s, critics claimed that the federal agency in charge of immigration enforcement, the “Legacy” Immigration and Naturalization Service (“INS”), could not process quasi-judicial cases in a fair and just manner due to limited autonomy, non-existent technology, insufficient resources, haphazard management, poor judicial selection processes, and backlogs. The solution? Create a sub-agency of the Department of Justice (“DOJ”) just for the immigration courts, focused on “due process with efficiency” and organizationally separate from the agency charged with immigration enforcement. The Executive Office of Immigration Review (“EOIR”) was an ambitious and noble endeavor, meant to be an independent court system operating inside of a Federal Cabinet agency. Spoiler: despite significant initial progress it did not work out that way in the long run.
In 1986, the United States was facing an immigration crisis with an overwhelmed INS and a record number of undocumented folks in the country. IRCA, a bipartisan bill, was created to solve the immigration crisis through a three-pronged approach: legalization, enforcement and employer accountability. However, it soon became apparent that some parts of IRCA were more successful than others. IRCA taught us relevant lessons for going forward. Because while pathways to citizenship are self-sustaining, enforcing borders is not.
Judges are meant to be impartial; but, U.S. Immigration Judges have political bosses who are willing and able to fire them while making little secret of their pro-enforcement, anti-immigrant political agenda. What are the public consequences of an Immigration Court with limited autonomy from the Executive Branch? We begin the podcast at one of the “turning points,” when Attorney General John Ashcroft fired almost all the most “liberal” Board Members of the BIA, all of whom were appointed during the Clinton Administration. What followed created havoc among the U.S. Courts of Appeals who review BIA decisions. The situation has continually deteriorated into the “worst ever,” with “rock bottom” morale, overwhelming backlogs, fading decisional quality, and the “weaponized”Immigration Courts now tasked with carrying out the Trump Administration’s extreme enforcement policies.
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Many, many thanks to Marica for persuading me to do this project and for doing all the “hard stuff.” I just “rambled on” — her questions and expert editing provided the context and “framework.”And, of course, Marica provided all the equipment (the day her brother “borrowed” her batteries) and the accompanying audio clips and written introductions.
Also, many thanks to my wife Cathy for the many hours that she and “Luna the Dog” (a huge “Marica fan”) spent trying not to listen to us working in the dining room, while adding many helpful suggestions to me, starting with “you sound too rehearsed” and “lose the ‘uhs’ and ‘you knows.’” She even put up with me playing some of the “original takes” while we were “on the road” to Wisconsin or Maine.
Immigration courts in ‘chaos,’ with coronavirus effects to last years
By Tal Kopan
WASHINGTON — Raquel and her sons fled gang threats in El Salvador, survived the weeks-long journey to the U.S., and then endured the Trump administration’s 2018 separations at the southern border.
This month, she was finally going to get her chance to convince an immigration judge in San Francisco that she should be granted permanent asylum in the U.S., ending the agony of having to prepare for her court date by reliving the danger in her native country and her weeks of detention at the border.
Thanks to the coronavirus, she will have to endure the wait for three more years.
“It’s really traumatizing, because I have to keep telling them the same thing,” Raquel said. “I thought I had gotten over everything that had happened to me … but every time I remember, I can’t help crying.”
Raquel’s case is one of hundreds of thousands in the immigration courts that are being delayed by the pandemic. The courts, run by the Justice Department, have been closed for health reasons in the same way that much of U.S. public life has been on hold. But many of those who work in the system say the Trump administration has handled the shutdown in an especially haphazard manner, increasing the stress on judges and attorneys in addition to immigrants and making it harder for the courts to bounce back.
“There isn’t a day that goes by that there isn’t mass chaos behind this veil of business as usual,” said Ashley Tabaddor, president of the National Association of Immigration Judges.
The Justice Department began postponing hearings for immigrants who are not in detention on March 18, and the delays have been extended every few weeks. Hearings are now set to resume June 15. But many courts technically remain open, including the one in San Francisco, with frequently changing statuses announced on social media and a website. It also took weeks for all judges to get laptops that would allow them to work remotely, said Tabaddor, who hears immigration cases in Los Angeles.
The scattershot communications make it difficult to prepare for if and when the hearings are held, immigrants say. And it’s worse for those who have no lawyer who can help navigate the changes. About one-third of immigrants with pending cases have no representation, according to Justice Department statistics, and missing a hearing is grounds for deportation.
The Justice Department says it is being proactive in balancing safety with immigrants’ rights. A spokeswoman said the agency is “deeply concerned” for the health of its staff and the public.
In a recent legal filing, the director of the immigration courts, James McHenry, said a “one size fits all” approach to court closures and procedures wouldn’t work, given varying situations at different locations.
With postponements happening on short notice, most immigrants fighting deportation feel they must prepare for court even if pandemic-caused delays seem likely. But doing so can force them to revisit the terrifying situations they say they came to the U.S. to escape.
None who spoke with The Chronicle said they wanted to risk their health by keeping the courts open. But they and their attorneys said they wished the administration was doing more to take immigrants’ and staffers’ needs into account.
Because the immigration courts already have a backlog of more than 1 million cases, it can take years for an asylum applicant such as Raquel to go before a judge. In the meantime, they build lives here, knowing that can be yanked away if they’re ordered deported.
Raquel and others whose hearings have been postponed won’t go first when the courts reopen — they go to the back of the line. The alternative for the immigration courts would be a logistical nightmare of rescheduling everyone else’s hearings, which are now booked years in advance.
The Trump administration ended the practice of prioritizing cases of criminal immigrants or recent arrivals, and has curtailed judges’ ability to simply close the case of a low-risk migrant less deserving of deportation, which would clear court schedules for more serious cases.
The Justice Department declined to say how many hearings have been postponed because of the pandemic. But a nonprofit statistics clearinghouse estimated that the government shutdown of 2018-19 resulted in the cancellation of 15,000 to 20,000 cases per week.
Raquel’s case is emblematic of the thousands that are now in limbo. The Chronicle has agreed not to use her real name out of her concern for her safety, in accordance with its anonymous sourcing policy.
Raquel says she came to the U.S. in 2018 because a gang in the area of El Salvador where she lived threatened her family after her two sons refused to join.
She was among the immigrant families that were forcibly separated at the border. She spent a month and a half apart from her teenage son as she was shuffled between detention centers and jails. She says she endured numerous indignities, including having to shower in front of guards and being shackled by her wrists and ankles.
“It was the most bitter experience I’ve ever had,” she said in Spanish.
After finally being reunited with her son and released, Raquel rejoined her husband and other son who had come here previously, settling in San Francisco. She was ordered to wear an ankle monitor, which again made her feel like “a prisoner.”
“I had never felt so hurt like I did in this country, which hurt me so much just for crossing a border illegally,” Raquel said. “That was the sin and the crime that we committed, and we paid a high price.”
Raquel spoke with The Chronicle before receiving word that her May hearing was canceled. She and her attorney had felt forced to prepare despite a high likelihood of postponement, just in case the Justice Department forged ahead.
San Francisco attorneys who are working with immigrants during the pandemic say it is an acute challenge. Stay-at-home orders complicate preparing for cases that could have life-and-death consequences for those who fled violence back home.
Difficulties include trying to submit 1,000-page filings from home, needing to discuss traumatic stories of domestic and sexual violence with immigrants who are sharing one-bedroom apartments with 10 other people, and navigating courts’ changing status on Twitter.
“It’s taking an already not-user-friendly system and spinning it into chaos to the extent that even savvy practitioners don’t know how to get information, let alone the applicant,” said Erin Quinn, an attorney in San Francisco with the Immigrant Legal Resource Center.
She added, “The stakes are high, and at the same time, a comment I got yesterday from a practitioner was, ‘I’m tired of trying to figure out what to do with my practice based on tweets.’”
Judges and court staffers are also frustrated. On March 22, an unprecedented partnership was formed among the unions representing Immigration and Customs Enforcement attorneys who serve as prosecutors in the courts, judges and the association for attorneys who represent immigrants. They wrote a letter to the Justice Department demanding it close all the courts, not just postpone hearings for immigrants who are not in detention. The agency later expanded the ability of attorneys to appear by telephone and for some judges to work from home.
Even now, however, the Justice Department is requiring some judges and staff to come in to court to handle cases of immigrants who are being detained — those hearings have not been canceled — or to process filings.
“It is very, very upsetting. Employees do not feel like they are, No. 1, being protected and, No. 2, you don’t feel respected and valued,” said Immigration Judge Dana Leigh Marks, president emerita of the judges’ union.
Marks and Tabaddor say it’s part of a Trump administration pattern of stripping immigration judges of their independence at the expense of fair proceedings— an example of “haste makes waste,” Marks said. The Justice Department has set performance metrics to push judges to complete more cases, and Trump’s attorneys general have issued rulings that made it more difficult for judges to prioritize their caseloads.
The Justice Department, for its part, says it is making the courts more efficient. In November, McHenry testified before Congress that his agency had “made considerable progress in restoring (the courts’) reputation as a fully functioning, efficient and impartial administrative court system fully capable of rendering timely decisions consistent with due process.”
Quinn, the San Francisco attorney, said the Justice Department should work more closely with immigrants’ lawyers like Raquel’s to prioritize cases that are ready to move forward.
“Everything this administration has done to speed up or deal with the backlog are actually actions that limit the meting out of justice in the courts, which even before this crisis have been gumming up the system further,” Quinn said. “We will see the impact of that now as we try to come out of this crisis.”
Meanwhile, for immigrants like Raquel, the wait will continue. Even with the hardship, she says coming to the U.S. was worth the risks.
“It’s about protecting my children,” she said. “I’ve always told my sons, if God let us get here, they have to take advantage of it. … In my country, someone walks down the block and they get assaulted or kidnapped and nobody ever finds them. But not here. Here you feel safe.”
San Francisco Chronicle staff writer Alexei Koseff contributed to this report.
It’s great to have you back, Tal! We’ve missed you!
It’s well worth going to the link to read Tal’s full article! Also, you’ll see some great pictures from the “home chambers” of my good friend and colleague Judge Dana Leigh Marks of the San Francisco Immigration Court, a Past President of the NAIJ.
What also would be great is if the dire situation in the U.S. Immigration Courts had actually improved over the past few months. But, predictably, the “downward spiral” has only accelerated.
Tal’s article brings to life the “human trauma” inflicted not only on those poor souls whose constitutional due process rights have been “sold down the river” by this “maliciously incompetent” regime, but also the unnecessary trauma inflicted on everyone touched by this disgraceful system: private and pro bono counsel, judges, interpreters, clerical staff, government counsel, and their families all get to partake of the unnecessary pain and suffering.
While it undoubtedly would take years to restore due process, fundamental fairness, and some measure of efficiency to this dysfunctional mess, the starting points aren’t “rocket science” – they are deceptively simple. One was eloquently stated by Erin Quinn, an attorney with the Immigrant Legal Resource Center in San Francisco who “said the Justice Department should work more closely with immigrants’ lawyers like Raquel’s to prioritize cases that are ready to move forward.” That’s actually how it used to be done in places like Arlington.
As Judge Marks points out, a host of “haste makes waste” gimmicks and enforcement schemes by this Administration (and to a lesser extent by the Obama Administration) have resulted in massive “Aimless Docket Reshuffling” and total chaos as politicos in at the DOJ and bureaucrats in EOIR HQ “redesign and reshuffle” dockets to achieve political objectives and “send messages” without any meaningful input from the Immigration Judges and attorneys (on both sides) who actually do the work and understand the dynamics of a particular docket.
In particular, under a fair and unbiased application of legal standards there are thousands of well-documented meritorious asylum and cancellation of removal cases that could be handled in “short hearings.”Other individuals could be removed from the docket to pursue U and T nonimmigrant visas or “stateside processing” permanent immigration with USCIS. Still others have documentation establishing that they are productive, law-abiding tax-paying members of their communities, often with U.S.citizen family, who should be removed from the dockets through the type of sensible, mutually beneficial “prosecutorial discretion” (“PD”) programs that were beginning to show meaningful results before being arbitrarily terminated by this Administration.
This is just the “tip of the iceberg.” There are many more improvements in efficiency, without sacrificing due process, and “best practices” that could be made if this were operated as a fair and impartial court system, rather than an appendage of DHS Enforcement committed to Stephen Miller’s nativist agenda.
The other necessary piece is the one promoted by Judge Tabaddor and the NAIJ and endorsed by nearly all “non-restrictionist” experts in the field: establishing an independent Immigration Court outside of the Executive Branch. That’s not likely to happen without “regime change.”
Moreover, it’s clear from his recent actions that Billy Barr, who is currently running the Immigration Courts into the ground, actually aspires to “kneecap” the Article III Judiciary in behalf of his lord and master, Trump. Barr would be delighted if all Federal,Courts, including the Article IIIs, were functionaries of the all powerful “Unitary Executive.” Given the Supremes’ failure to stand up for immigrants’ and asylum seekers’ legal rights as they are systematically dismantled by the regime, Barr is already a ways down that road!
Tal’s article also highlights another glaring deficiency: the lack of a diverse, merit-based Immigration Judiciary committed solely to “due process with efficiency” and fair and impartial adjudications under the law, particularly the asylum laws. Experts like Erin Quinn, folks with a deep scholarly understanding of immigration and asylum laws and experience representing the individuals whose lives are caught up in this system, should be on the Immigration Bench. They are the ones with the knowledge and experience in making “hard but fair” choices and how to achieve “practical efficiency” without sacrificing due process.
Rather than actively recruiting those outstanding candidates from the private, academic, and NGO sectors with asylum experience and knowledge, so that they could interact and share their expertise and practical experiences with other judicial colleagues, the current system draws almost exclusively from the ranks of “insiders” and government prosecutors. They apparently are hired with the expectation that they will churn out orders of removals in support of DHS Enforcement without “rocking the boat.” To some extent this was also true under the Obama Administration, which also hired lopsidedly from among government attorneys.
Indeed, prior immigration experience is not even a job requirement right now. The hiring tends to favor those with high volume litigation skills, primarily gained through prosecution. That doesn’t necessarily translate into fair and scholarly judging, although it might and has in some instances.
Of course, a few do defy expectations and stand up for the legal and due process rights of respondents. But, that’s not the expectation of the politicos and bureaucrats who do the hiring. And the two-year probation period for newly hired Immigration Judges gives Administration politicos and their EOIR subordinates “leverage” on the new judges that they might not have on those who are more established in the system, particularly those who are “retirement eligible.”
Moreover, the BIA has now been “stocked” with judges with reputations for favoring enforcement and ruling against asylum seekers in an unusually high percentage of cases.The design appears to be to insure that even those who “beat the odds” and are granted asylum by an Immigration Judge get “zapped” when the DHS appeals. Even if the BIA dared not to enforce the “restrictionist party line,” the Attorney General can and does intervene in individual cases to change the result to favor DHS and then to make it a “precedent” for future cases.Could there be a clearer violation of due process and judicial ethics? I doubt it. But, the Courts of Appeals largely pretend not to see or understand the reality of what’s happening in the Immigration Courts.
Beyond that, the Immigration Judge job, intentionally in my view, has been made so unattractive for those who believe in due process for individuals and a fair application of asylum laws, that few would want to serve in the current environment. Indeed, a number of fine Immigration Judges have resigned or retired as matters of conscience because they felt unable to square “system expectations” with their oaths of office.
To state the obvious, the current version of Congress has become a feckless bystander to this ongoing human rights, constitutional, ethical, and fiscal disaster. But, the real question is whatever happened to the existing independent Article III Judiciary? They continue to remain largely above the fray and look the other way as the Constitution they are sworn to uphold is further ground into the turf every day and the screams of the abused and dehumanized (“Dred-Scottified”) emanating from this charade of a “court system” get louder and louder.Will they ever get loud enough to reach the refined ears of those ensconced in the “ivory tower” of the Article III Judiciary?
Someday! But, the impetus for the necessary changes to make Due Process, fundamental fairness, and equal justice for all a reality rather than a cruel, intellectually dishonest, and unfulfilled promise is going to have to come from outside the current broken and intentionally unfair system and those complicit in its continuing and worsening abuses of the law and humanity!
Judge John “Maximum John” Sirica 1904-1992 US District Court, D.C. 1957-1992Hon. Emmet G. Sullivan US District Judge DC
HISTORICAL PERSPECTIVE: Will Judge Emmet Sullivan Become The Judge John Sirica of “Trumpgate?” — “No Nincompoops!”
By Paul Wickham Schmidt
Courtside Exclusive
May 17, 2020.Nearly five decades ago, a tough-mindedU.S. District Judge in Washington, D.C., refused to “go along to get along.” Judge “Maximum John” Sirica saw through the corrupt B.S. being put forth by defendants (“The Plumbers”) who pleaded guilty in attempting to “cover up” the badly bungled Watergate burglary of DNC headquarters in the Watergate Hotel. So, Sirica did some digging on his own.
One of his most famous quotes — the “No Nincompoops Rule”was set forth in his New York Times obit:
None other than former Attorney General John Mitchell had been involved in orchestrating the Watergate caper, and the “cover-up” trail eventually led all the way to the Oval Office and President Nixon. Nixon eventually resigned with impeachment, conviction, and removal staring him in the face.
The scandal involved some truly bizarre moments such as the “kidnapping” of Mitchell’s eccentric, talkative, estranged wife Martha and White House Counsel John Dean being told to “deep six” potentially incriminating documents by throwing them off the 14th Street Bridge on the way home to his Alexandria townhouse. It added to our vocabulary colorful terms like “stonewalling,” “twisting slowly in the wind,” “Deep Throat,” and more, in addition, of course, to “deep six.” John “The Con” Mitchell was convicted of conspiracy, perjury, and obstruction of justice (although never charged with Martha’s kidnapping) and served time in a Federal Penitentiary. Judge Sirica was named Time’s “Man of the Year.”
Watergate also resulted in changes in ethical rules and an effort to insulate the DOJ investigative and prosecution functions from political influence, particularly interference from the White House. With AG Billy Barr’s assistance, Trump has basically blown away all ethical safeguards and politicized and “weaponized” government institutions to a degree that probably exceeds Watergate.
Now, Billy Barr is trying to further Trump’s agenda by making the Flynn prosecution go away. That’s after Flynn actually pleaded guilty to the charges before Judge Emmet G. Sullivan. At least initially, Judge Sullivan appears skeptical about the sudden change of course by DOJ prosecutors. It’s a move that led to the withdrawal of the career prosecutors involved in the case and a demand from a bipartisan group of more than 2,000 former DOJ officials (including me and many colleagues from the Round Table of Retired Judges) that Barr resign.
Judge Sullivan has a reputation for independence and not suffering fools lightly. He has appointed private counsel to argue against dismissal of the charges. We’ll have to see what, if anything, comes of it all.
It’s also unclear whether a lone Federal Judge of courage and integrity still can “make a difference” in today’s rapidly deteriorating legal and political environment. During Watergate, a unanimous Supremes (with Chief Justice Rehnquist recused) stood up to Nixon and rejected his bogus executive privilege claim on incriminating tapes. GOP Congressional leaders eventually joined those voices urging Nixon to resign.
So far, by contrast, the Roberts-led Supremes’ majority hasn’t shown an inclination to stand up to Trump on any major issue of Executive overreach. And, GOP legislators have shown themselves to be so scared of Trump and so far inside his pocket that they can’t see the light of day. Indeed, they appear to have lost ambition to do anything other than help Trump and cover up his corruption and “malicious incompetence.”
Even if Sullivan does uncover something shady, it’s likely that Roberts and the GOP will leap to help Trump and Barr suppress and cover up any evidence of wrongdoing by blocking or obstructing any further investigation by House Democrats. Times have changed. And, right now, that doesn’t appear to be for the better for our justice system or our nation.
Three years ago, President Donald Trump appeared to be politically wounded and legally encircled. On May 17, 2017, eight days after Trump had fired James Comey, then the F.B.I. director, Robert Mueller was appointed as special counsel, to investigate ties between the Trump campaign and Russia. Memos written by Comey stated that Trump had asked him to “let go” of the F.B.I. investigation of Michael Flynn, Trump’s national-security adviser, who had been fired after he lied to Vice-President Mike Pence and other officials about the nature of a phone call that he’d had with the Russian Ambassador. As 2017 came to a close, Flynn pleaded guilty to lying to F.B.I. agents about the call and agreed to serve as a coöperating witness for Mueller’s investigation. Trump’s effort to flout post-Watergate reforms, which were designed to prevent a President from pressuring the F.B.I. into halting a politically embarrassing investigation, appeared to have failed.
Yet now, six months before he faces reëlection, Trump, with the help of Attorney General William Barr, is successfully rewriting that history. Last Thursday, Barr dismissed the charges against Flynn, declaring him the victim of an F.B.I. plot. (The federal judge who oversaw Flynn’s case said that he would appoint a retired judge to review Barr’s action, and whether Flynn should now be charged with perjury.) At Barr’s direction, the Justice Department is conducting a criminal investigation of Comey, the F.B.I. officials who investigated the Trump campaign, and the C.I.A. officials who concluded that Russia had intervened in the 2016 election on Trump’s behalf. Barr is flatly rejecting the findings of Mueller and the Justice Department’s inspector general: that the F.B.I was justified in investigating the highly unusual contacts between the Trump campaign and a hostile foreign government—which did, in fact, intervene in the race on Trump’s behalf—and that Trump and his aides had welcomed that aid and repeatedly lied about their own actions.
Instead, Barr, in an extraordinary act by an Attorney General, declared, last month, that the F.B.I. investigation of the Trump campaign was “without any basis,” an attempt to “sabotage the Presidency,” and “one of the greatest travesties in American history.” He added, in reference to his department’s new investigation—but without citing any specifics—that “the evidence shows that we are not dealing with just mistakes or sloppiness” but that “there was something far more troubling here.” Those statements violated a long-standing Justice Department practice of not commenting on investigations before they have been completed. In a subsequent interview, Barr hinted that he might release the results of the ongoing probe, led by a federal prosecutor, John Durham, before the election. Barr said that a Justice Department policy prohibiting prosecutors from filing criminal charges or taking investigative steps to impact elections did not apply. “The idea is you don’t go after candidates,” Barr said. “But, you know, as I say, I don’t think any of the people whose actions are under review by Durham fall into that category.”
On Wednesday, the acting director of National Intelligence, Richard Grenell, gave Republican senators records he had declassified that listed the names of three dozen Obama Administration officials, including Joe Biden, who requested to know the identity of an American citizen who had had a series of phone calls with foreign officials after Trump won the election. The citizen was Flynn. On Wednesday, those senators released the names of the officials and accused the former Vice-President of participating in a plot to entrap Flynn. Former national-security officials said that it is routine to request, or “unmask,” the names of Americans whose conversations with foreign officials contain intelligence, and noted that the practice has increased by seventy-five per cent under Trump. Ben Rhodes, a former top Obama adviser, tweeted, “The unconfirmed, acting DNI using his position to criminalize routine intelligence work to help re-elect the president and obscure Russian intervention in our democracy would normally be the scandal here.” Grenell replied in a tweet, “Transparency is not political. But I will give you that it isn’t popular in Washington DC.”
Next Tuesday, the Senate Intelligence Committee is expected to approve the nomination of John Ratcliffe, a pro-Trump Republican congressman from Texas, to replace Grenell as the director of National Intelligence. Ratcliffe caught Trump’s eye when he assailed Mueller on national television during the former special counsel’s testimony before Congress. An individual involved in Ratcliffe’s confirmation effort said that “the fact that the President trusts Congressman Ratcliffe—not because they are friends but because he’s observed his good judgment and the way he handles himself—that affords a great opportunity to strengthen the relationship between the President and the intelligence community.”
Former Justice Department and intelligence officials have expressed alarm at Trump’s success at appointing partisan loyalists who they say echo the Presidents political messaging. David Laufman, a former head of the Justice Department’s counterintelligence section, who worked on the Trump-Russia investigation, told me, “I think we need to be careful not to be too lackadaisical in recognizing the significance of what is happening throughout our government, not just in law enforcement and intelligence but the attempted politicization of our public health system,” citing attacks by Trump supporters on Dr. Anthony Fauci, one of the government’s top infectious-disease experts. “It’s everywhere, and it matters in ways that are increasingly important to the well-being of people in our country.”
The transformation has been most striking at the Justice Department, an institution that, after Watergate, both Republicans and Democrats agreed should strive to remain politically neutral. Stephen Gillers, a professor of legal ethics at New York University, said that, more than any other modern Attorney General, Barr has enabled the President to use the department for his own purposes. “I’ve lived through Attorneys General Mitchell and Meese,” Gillers said, referring to John Mitchell and Edwin Meese, who served as Attorneys General in the Nixon and Reagan Administrations, respectively. “Those guys were choir boys next to Barr.” (A spokeswoman for Barr did not respond to a request for comment.)
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Read the rest of Rohde’s article at the link.
Ethics certainly has taken a holiday, a long one, during the Trump regime! Talk about someone “stocking the swamp!”🐊 On the “choirboy front,” remember that “John the Con” Mitchell actually served time in a Federal Pen for his role in Watergate. So, it’s “no mean feat” for Billy to achieve a higher “corruption rating” than “The Con” from Professor Gillers!
As someone who “came to Washington” during Watergate, I was shocked by the ease with which Trump and his cronies did away with all the ethical rules and protections put in place in the aftermath.
I’m still stunned and saddened by the lack of integrity and courage shown by the Article III Federal Judiciary under the spineless leadership and kowtowing to Executive authority of John Roberts. I actually thought he was better than that. But, hey, I was wrong to give him the “benefit of the doubt.”
I’m also surprised by the complete corruption of today’s GOP. During Watergate, Nixon certainly had his GOP defenders, particularly at first. But, as the evidence against him mounted, many members of the GOP joined in pressuring him to “do the right thing” and resign before being impeached and removed. And, Nixon, for all his quirks, biases, cover-ups, and total lack of personal charisma was still a better and more effective leader, even at the end, than Trump ever has been or will be.
Also, the “meltdown” at Justice stands out. During Watergate, Nixon had to get down to the #3 politico at the DOJ, Solicitor General Robert Bork, to fire the Watergate Prosecutor, after AG Elliot Richardson and DAG William Ruckelshaus resigned rather than violate their oaths of office. And, Bork’s questionable decision to comply with Nixon’s order probably helped cost him a seat on the Supremes.
Today, by contrast, the “5th Floor” of the DOJ is teeming with unethical sycophants, starting with Barr, who seem to be competing with each other to “out-Trump Trump.”
Another interesting thing is how Billy managed to hide his far-right extremism, intellectual dishonesty, contempt for American Justice and rule of law beneath a veneer of “corporate respectability” in the ranks of “Big Law” for many years. At Billy’s confirmation hearing, perhaps glad to finally be rid of “Gonzo Apocalypto,” many seemed to “take him at his word” as he skirted the big questions and lied his way to the head position at one of the “nerve centers” of American Justice.
This November, vote like your life depends on it. Because it (and the future of our nation) does!
WASHINGTON — Several immigrant rights organizations are outraged by a new choice U.S. Immigration and Customs Enforcement is presenting to migrant parents: Separate from your child or stay together in detention indefinitely.
Starting on Thursday, the groups claim, ICE began distributing a form in all three of its family detention centers that would allow parents to apply for their minor children to be released. The form, a copy of which was obtained by NBC News, states that it is in compliance with the Flores court agreement, which prohibits ICE from holding minors for more than 20 days.
The released children are placed with family members, sponsors or placed in the custody of the Department of Health and Human Services.
The Trump administration faced intense criticism for a Zero Tolerance policy in 2018 in which undocumented migrant children were separated from parents who had illegally crossed the order. The policy was implemented in May 2018 but reversed after an outcry in June.
The current, “voluntary” concept was previously termed “binary choice,” but has never been fully implemented. Now, lawyers representing clients in ICE family detention say parents may be persuaded to separate from their children if they are worried about exposing them to COVID-19 in detention.
The timing is no coincidence, said Shayln Fluharty, director of the Dilley Pro Bono Project, which provides legal services for families in detention in Dilley, Texas. A federal judge recently told ICE it was not in compliance with the Flores agreement, and the forms, said Fluharty, are a way for ICE to show that these parents have chosen to keep their children in detention.
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Read the rest of Julia’s article at the link.
Just another “in your face” unlawful move by DHS officials sending a strong message of contempt to the Federal Judges handling various aspects of the regime’s intentional child abuse, family separation, and punishing asylum seeking families by needless imprisonment in the New American Gulag (“NAG”).
Yes, the District Court Judges handling these matters have ordered the Government to take various forms of corrective action. But, even where the judges use forceful language, it’s largely ineffective to change illegal policies. The regime and its officials just play “hide the ball” and develop schemes and “work arounds” to violate the law and court orders in other ways. That they continue to do this over and over – a strategy known as “malicious compliance” – shows their total disrespect for the Federal Courts and that they share Trump and Miller’s belief that they are above the law.
So far, particularly in the immigration and refugee area, the scofflaws have largely prevailed.They have dismembered immigration and asylum laws with neither legislative enactments nor meaningful judicial consequences. They have publicly and arrogantly “thumbed their noses” at court orders they don’t like. Unless and until the Federal Judges back up their orders by holding Chad Wolf and other scofflaw officials in contempt – real contempt – jail time not just meaningless fines – the abuse and the open disregard for the rule of law and for the authority of Federal Judges will continue.
The law, our Constitution, and human rights will continue to be mocked. Even the best of Federal Judges will appear feckless unless and until they start treating immigration officials as the lawless criminals they actually are!
Undoubtedly, some of the children and families intentionally being abused, dehumanized, and punished by the Trump regime as Federal Courts play bystander won’t survive long enough to tell their stories. But, some will. While those officials, legislators, and judges enabling, or in some cases masterminding and encouraging, these abuses appear likely to escape “temporal” legal accountability for their actions, moral and historical accountability are a different matter altogether. Lots of folks who believe they are “operating under the radar screen” are going to look very bad when the light of history shines on the grotesque human rights, moral, and constitutional violations at our borders and in our Gulags and those who carried them out or failed to effectively halt them.
THE WORLD CHANNELS “COURTSIDE” — A Shocked & Dismayed World Now Sees America Under The Trump Clown 🤡🤡 Kakistocracy For What It Is: A Rich, Arrogant, Willfully Ignorant, Dishonest, Dangerous “Failing State” To Be Pitied — Not To Be Trusted, Followed, Or Admired — “But there is one emotion that has never been directed towards the US until now: pity.”
The Trump administration has repeatedly claimed that the US is “leading the world” with its response to the pandemic, but it does not seem to be going in any direction the world wants to follow.
Across Europe, Asia, Africa and Latin America, views of the US handling of the coronavirus crisis are uniformly negative and range from horror through derision to sympathy. Donald Trump’s musings from the White House briefing room, particularly his thoughts on injecting disinfectant, have drawn the attention of the planet.
“Over more than two centuries, the United States has stirred a very wide range of feelings in the rest of the world: love and hatred, fear and hope, envy and contempt, awe and anger,” the columnist Fintan O’Toole wrote in the Irish Times. “But there is one emotion that has never been directed towards the US until now: pity.”
The missing six weeks: how Trump failed the biggest test of his life
The US has emerged as a global hotspot for the pandemic, a giant petri dish for the Sars-CoV-2 virus. As the death toll rises, Trump’s claims to global leadership have became more far-fetched. He told Republicans last week that he had had a round of phone calls with Angela Merkel, Shinzo Abe and other unnamed world leaders and insisted “so many of them, almost all of them, I would say all of them” believe the US is leading the way.
None of the leaders he mentioned has said anything to suggest that was true. At each milestone of the crisis, European leaders have been taken aback by Trump’s lack of consultation with them – when he suspended travel to the US from Europe on 12 March without warning Brussels, for example. A week later, politicians in Berlin accused Trump of an “unfriendly act” for offering “large sums of money” to get a German company developing a vaccine to move its research wing to the US.
People gather to protest the stay-at-home orders outside the state capitol building in Sacramento, California, this month. Photograph: Josh Edelson/AFP via Getty Images
The president’s abrupt decision to cut funding to the World Health Organization last month also came as a shock. The EU’s foreign policy chief, Josep Borrell, a former Spanish foreign minister, wrote on Twitter: “There is no reason justifying this move at a moment when their efforts are needed more than ever to help contain & mitigate the coronavirus pandemic.”
A poll in France last week found Merkel to be far and away the most trusted world leader. Just 2% had confidence Trump was leading the world in the right direction. Only Boris Johnson and Xi Jinping inspired less faith.
A survey this week by the British Foreign Policy Group found 28% of Britons trusted the US to act responsibly on the world stage, a drop of 13 percentage points since January, with the biggest drop in confidence coming among Conservative voters.
Dacian Cioloș, a former prime minister of Romania who now leads the Renew Europe group in the European parliament, captured a general European view this week as the latest statistics on deaths in the US were reported.
“Post-truth communication techniques used by rightwing populism movements simply do not work to beat Covid-19,” he told the Guardian. “And we see that populism cost lives.”
Around the globe, the “America first” response pursued by the Trump administration has alienated close allies. In Canada, it was the White House order in April to halt shipments of critical N95 protective masks to Canadian hospitals that was the breaking point.
The Ontario premier, Doug Ford, who had previously spoken out in support of Trump on several occasions, said the decision was like letting a family member “starve” during a crisis.
‘It will disappear’: the disinformation Trump spread about the coronavirus – timeline
“When the cards are down, you see who your friends are,” said Ford. “And I think it’s been very clear over the last couple of days who our friends are.”
In countries known for chronic problems of governance, there has been a sense of wonder that the US appears to have joined their ranks.
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Read the full article at the above link.
Are we still “to be feared,” even if no longer admired or respected?Good question!
Probably, insofar as our collapse would take down a chunk of the world’s economy with it, leave a leadership vacuum, and change the balance of power, perhaps in favor of China, Russia, South Korea, Canada, and India. We also still have a big military and lots of sophisticated weapons, although modern terrorism has shown that sophistication in expensive weaponry is not always the “be all and end all” either for winning wars or causing mass disorder, death, and mayhem.
Still, as our civil governance and international influence disintegrates, what happens with and to our military is a huge concern and a “big X factor.” Will the tradition of “civilian control over the military” also fall victim to the kakistocracy and the failure of civilian governing institutions? What’s happened to our intelligence community under the Trump kakistocracy is likely a bad omen.
Who would have thought that Trump could do so much permanent or at least long-term damage in such a short period of time? And who would have believed that our centuries-old constitutional and democratic institutions, meant to protect individual rights, enforce the rule of law, and check unrestrained abuses of power by a megalomaniac, yet highly incompetent, dishonest, dangerous, and evil Executive would have crumbled so quickly and performed so haplessly when confronted by a President and an unscrupulous, corrupt, authoritarian regime and party of toadies perfectly willing to press aggressively inane and illegal policies and false narratives to destroy the nation and everyone in it as a means of pillaging and enhancing their own power?
Yet, here we are! Much of the rest of the world appears to “get” it. Yet tens of millions of Americans who continue to support and enable the kakistocracy don’t, or they simply don’t care about our nation and the common good.
This November, vote like your life depends on it! Because it does!
For the foregoing reasons, in the absence of clear and convincing evidence that his release would endanger the public or that he is a flight risk, coupled with the known risks associated with the presence of COVID-19 at Pulaski, this Court concludes that Galan-Reyes’ continued indefinite detention violates his Fifth Amendment right to due process. The government’s interests in continuing his detention must therefore yield to his liberty and safety interests.6
Disposition
IT IS HEREBY ORDERED that the Petition for writ of habeas corpus is GRANTED.
Respondents are ORDERED to IMMEDIATELY RELEASE Omar Galan-Reyes, pursuant to the following conditions:
1. Petitioner will reside at a certain residence, will provide his address and telephone contact information to Respondents, and will quarantine there for at least the first 14 days of his release;
2. If Department of Homeland Security (DHS) determines that Petitioner is an appropriate candidate for Alternatives to Detention (ATD), then Petitioner will comply with DHS instructions as to any ATD conditions;
3. Petitioner will comply with national, state, and local guidance regarding staying at home, sheltering in place, and social distancing and shall be placed on home detention;
4. The Court’s order for release from detention shall be revoked should Petitioner fail to comply with this order of release;
5. This Order does not prevent Respondents from taking Petitioner back into custody should Petitioner commit any crimes that render him a threat to public safety or otherwise violate the terms of release;
6. Petitioner will be transported from Pulaski County Detention Center to his home by identified third persons;
7. Petitioner will not violate any federal, state, or local laws; and
8. At the discretion of DHS and/or ICE, to enforce the above restrictions, Petitioner’s whereabouts will be monitored by telephonic and/or electronic and/or GPS monitoring and/or location verification system and/or an automated identification system.
The Clerk of Court is DIRECTED to close this case and enter judgment accordingly.
6 In light of the Court’s conclusion on Petitioner’s due process claim, it is not necessary to address his Administrative Procedures Act claim.
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Many thanks to Dan Kowalski over at LexisNexis for passing this along. And congrats to NDPA members A. Ross Cunningham, Esquire, and Jake Briskman, Esquire, for their representation of the prisoner rotting in the New American Gulag (“NAG”) in this case!
This decision reads like an indictment of the entire badly failed and fundamentally unfair DHS Enforcement and Immigration Court systems as mismanaged, weaponized, and politicized by the Trump regime Politicos and their toadies:
Abuse of detention system by detaining non-dangerous individuals who are not flight risks;
Uselessness of bond determinations by Immigration Judges who are functioning like enforcement officers, not independent judicial decision-makers;
Extraordinarily poor judgment by DHS Detention officials;
Delays caused by backlogged dockets driven by failure of DHS Enforcement to exercise prioritization and reasonable prosecutorial discretion compounded by the Immigration Judges who lack the authority, and in some cases the will, to control their dockets — dockets structured by politicos for political, rather than practical or legal, reasons (see, e.g., “Aimless Docket Reshuffling” or “ADR”);
Adangerously useless BIA that fails to set reasonable national bond criteria and fails to properly and competently consider Due Process interests in bond cases;
The importance of placing the burden of proof in bond cases where it constitutionally belongs: on DHS, rather than on the individual as is done in Immigration Court;
In this case, the US District Judge had to do the careful analytical work of individual decision making that should have been done by the Immigration Court, and which the Immigration Court should have, but has failed to, require DHS to adopt;
Leaving the big question: Why have Immigration Courts at all if the meaningful work has to be done by the U.S. Courts and U.S. Magistrates?
Why not “cut out the useless middleman” and just have U.S. Magistrate Judges under the supervision of U.S. District Judges conduct all removal and bond proceedings in accordance with the law, Due Process, and the Eighth Amendment until Congress replaces the current constitutionally flawed Immigration Courts with an independent immigration judiciary that can do the job and that functions as a “real court” rather than an arm of DHS Enforcement thinly disguised as a “court?”
The Trump administration’s emergency coronavirus restrictions have shut the U.S. immigration system so tight that since March 21 just two people seeking humanitarian protection at the southern border have been allowed to stay, according to unpublished U.S. Citizenship and Immigration Services data obtained by The Washington Post.
Citing the threat to public health from the coronavirus, the Trump administration has suspended most due-process rights for migrants, including children and asylum seekers, while “expelling” more than 20,000 unauthorized border-crossers to Mexico under a provision of U.S. code known as Title 42.
Department of Homeland Security officials say the emergency protocols are needed to protect Americans — and migrants — by reducing the number of detainees in U.S. Border Patrol holding cells and immigration jails where infection spreads easily. But the administration has yet to publish statistics showing the impact of the measures on the thousands of migrants who arrive in the United States each year as they flee religious, political or ethnic persecution, gang violence or other urgent threats.
AD
The statistics show that USCIS conducted just 59 screening interviews between March 21 and Wednesday under the Convention Against Torture, effectively the only category of protection in the United States that is still available to those who express a fear of grave harm if rejected. USCIS rejected 54 applicants and three cases are pending, according to the data, which does not indicate the nationality of those screened or other demographic information.
U.S. deportees go through ‘disinfection tunnel’ in Mexico
Mexican authorities sent U.S. deportees through “disinfection tunnels” on April 16 at a border crossing in Reynosa, Mexico. (Tamaulipas Migrant Institute)
Lucas Guttentag, an immigration-law scholar who served in the Obama administration and now teaches at Stanford and Yale universities, said the border measures “are designed to pay lip service” to U.S. law and international treaty obligations “without providing any actual protection or screening.”
“The whole purpose of asylum law is to give exhausted, traumatized and uninformed individuals a chance to get to a full hearing in U.S. immigration courts, and this makes that almost impossible,” Guttentag said. “It’s a shameful farce.”
Among migrants who sought protection to avoid being deported, U.S. immigration courts granted asylum to 13,248 in 2018, according to the most recent DHS statistics.
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Read the rest of Nick’s article at the link.
A “shameful farce” to be sure, as Lucas Guttentag says. But, with those whose job it is to protect the rule of law from a corrupt Executive’s overreach having largely “fled the field,” or “buried their heads in the sand,” it’s a farce that isn’t likely to abate until we get “regime change.”
This November, vote like your life depends on it! Because it does!
The absence of a checked alien classification box on a Notice to Appear (Form I-862) does not, by itself, render the notice to appear fatally deficient or otherwise preclude an Immigration Judge from exercising jurisdiction over removal proceedings, and it is therefore not a basis to terminate the proceedings of an alien who has been returned to Mexico under the Migrant Protection Protocols. Matter of J.J. Rodriguez, 27 I&N Dec. 762 (BIA 2020), followed.
The lesson of this case: The DHS intentionally puts superfluous information on its form NTA so it doesn’t make any difference whether they fill it in or not. The BIA is there to “fill in the blanks” and help their DHS buddies rack up maximo removals, preferably without in person hearings because it’s faster and helps fulfill “quotas,” under the Let ‘Em Die in Mexico Program (a/k/a “jokingly” as the “Migrant ‘Protection’ Protocols” (“MPP”) — which, of course, serve to intentionally endanger and discourage, not protect, asylum seekers).
This follows Matter of J.J. Rodriguezwhere the BIA found that the DHS wasn’t required to put a usable mailing address for the respondent on the NTA. I can only imagine what would have happened in the Arlington Immigration Court if a respondent had given me “Fairfax County, Virginia, USA” as his one and only address! The former is actually probably a “better” address than “Known Domicile, Tijuana, Baja California, Mexico” which was used in this case. What a farce! But, of course, it’s not very funny when it’s your life, or that of a loved one or client that is going down the tubes☠️.
There actually is an old legal axiom of construing problems against the drafter of a document, particularly when the drafter is in a more powerful position than the recipient. It even has a fancy legal name: Contra proferentem. But, today’s EOIR follows a much simpler maxim: The respondent always loses, particularly in precedent decisions.
I suppose at some point the BIA will be called upon to enter an in absentia removal order in a case where the NTA is blank except for the respondent’s name. I have no doubt, however, that they will be “up to the job.”
To his credit, Judge Edward Kelly entered a brief “concurring opinion” specifically noting that the statutory or constitutional authority for the so-called MPP was not at issue. In plain terms, that means, thanks in large measure to a complicit Supremes’ majority, even if that program, certainly a illegal and unconstitutional hoax, were later found to be unconstitutional, it would be far too late for those already removed, extorted, kidnapped, maimed, tortured, sickened 🤮, or dead ⚰️ thereunder. But, of course, the BIA, like Trump himself, will take no responsibility for any of the deadly fallout of their actions.
Great way to run a government! But, it’s the “New America” under Trump. Most of those in a position to stop the abuse merely shrug their shoulders, look the other way, and plug their ears so as not to have their serenity and complicity, as well as their paychecks, bothered by the screams and fruitless pleas of the abused. Except, of course, for true sadists ☠️ like Stephen Miller and his White Nationalist cronies 🏴☠️ who actually “get off” on the death, ⚰️ torture, abuse, and suffering of “others” they believe to be of “inferior stock” and therefore deserving of dehumanization and death⚰️.
Apparently, the “Tower Rumor Mill” @ EOIR HQ says that Acting Chief Immigration Judge Christopher Santoro will soon be replaced by a permanent Chief Immigration Judge hand selected from among DOJ political hacks by none other than one of the American taxpayers’ most highly paid, unelected White Nationalists, White House Advisor Stephen Miller. The name of Gene Hamilton, like Miller an uber restrictionist former sidekick of “Gonzo Apocalypto” Sessions, still kicking around the DOJ, has been bandied about. However, other parts of the “rumor mill” have expressed skepticism about whether Hamilton really wants the job. He might be able to score more “kills” from his current job, whatever it is.
Stay tuned! In the absence of a functioning Congress or a courageous Federal Judiciary, the “killing fields”⚰️⚰️⚰️⚰️⚰️👎 are just getting rolling @ EOIR. Under the Trump regime, EOIR is now on a breakneck pace to write one of the most dismal, disgusting🤮, and disturbing 😰chapters in modern American legal history involving a catastrophic failure of integrity, courage, and humanity spanning all three rapidly disintegrating branches of our flailing democracy.
For more than a month, under the guise of fighting the coronavirus, the Trump administration has used the nation’s public health laws as a pretext for summarily deporting refugees and children at the border.
This new border policy runs roughshod over legal rights, distracts from meaningful measures to prevent spread of the coronavirus and undermines confidence in the Centers for Disease Control and Prevention, the nation’s top health protection agency, which delivered the directive that imposes these deportations.
The administration has weaponized an arcane provision of a quarantine law first enacted in 1893 and revised in 1944 to order the blanket deportation of asylum-seekers and unaccompanied minors at the Mexican border without any testing or finding of disease or contagion. Legal rights to hearings, appeals, asylum screening and the child-specific procedures are all ignored.
More than 20,000 people have been deported under the order, including at least 400 children in just the first few weeks, according to the administration and news reports. Though the order was justified as a short-term emergency measure, the indiscriminate deportations continue unchecked and the authorization has been extended and is subject to continued renewal.
The deportation policy was issued by the C.D.C. based on an unprecedented interpretation of the public health laws. The policy bears the unmistakable markings of a White House strategy imposed on the C.D.C. and designed to circumvent prior court rulings to achieve the administration’s political goals.
The Border Patrol is carrying out the C.D.C. directive by “expulsion” of anyone who arrives at U.S. land borders without valid documents or crosses the border illegally, not because they are contagious or sick but because they come from Mexico or Canada, regardless of their country of origin. The deportations violate the legal right to apply for asylum and ignore the special procedures for unaccompanied children.
Our immigration laws guarantee that any noncitizen “irrespective” of status, no matter how they arrive, is entitled to an asylum process. U.S. law has adopted the international obligation that refugees cannot be returned “in any manner whatsoever” to a place where they risk persecution. The courts have protected these rights again and again. When the administration tried to impose an asylum ban more than a year ago, the U.S. Court of Appeals for the Ninth Circuit blocked it, calling it an “end-run” around Congress, a decision the Supreme Court refused to overturn.
Now, with the C.D.C. directive, the administration is imposing an even more sweeping prohibition on asylum by exploiting pandemic fears, and U.S. Border and Customs Protection is labeling the policy a public health “expulsion” instead of an immigration deportation.
Despite what the administration says, the order is not part of any coherent plan to stop border travel or prevent introduction or spread of contagious people or the virus, which is already widespread in the United States. Nothing limits travel from Mexico or Canada by truck drivers, those traveling for commercial or educational purposes, and many others, including green card holders and U.S. citizens. And the restrictions that exist do not apply at all to travel if it’s by airplane.
. . . .
The administration’s order expelling refugees and children tarnishes the C.D.C., does nothing to protect public health, targets the most vulnerable, tramples their rights and cloaks the deportations as fighting the coronavirus in order to escape accountability. “Flattening the curve” should not be an excuse for dismantling the law.
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Read the full op-ed at the link.
While the authors quite legitimately “out” the CDC for its corrupt performance, the real problem here goes much higher and cuts much more broadly across our failing democratic institutions of government. A feckless Congress, under the control of Moscow Mitch and the GOP, and the “J.R. Five” on the Supremes have given the “green light” to the Trump regime’s White Nationalist assault on the rights of asylum seekers and migrants. It’s “Dred Scottification” at its worst, and it threatens the continued existence of our nation and the lives and well-being of many of our fellow Americans.
They are a huge part of the problem: an institution charged with protecting our legal rights, including the rights of the most vulnerable among us, supposedly immune from partisan politics, that has abdicated that duty while hiding behind a barrage of right-wing legal gobbledygook.
Why is it only the four “moderate to liberal” justices that have an obligation to cross over and help the conservatives, Charlie, my man? Where was Chief Justice Roberts when the regime carried out the “Miller White Nationalist plan” running roughshod over decades of well-established legal and constitutional rights of refugees, asylum seekers, children, and other migrants, usingrationales so thin, fabricated, and totally dishonest that most high school civics students could have seen right through them. How does a bogus Immigration “Court” system run by uber partisan politicos like Jeff “Gonzo Apocalypto” Sessions and now Billy Barr come anywhere close to complying with the Due Process Clause of the Fifth Amendment?
Pretending like the Supremes aren’t a broken, politicized institution won’t help fix the problem. Even “regime change” in November won’t get the job done overnight.
The damage is deep, severe, life-tenured, and ultimately life-threatening. But, insuring that corrupt kakistocrats like Trump and Mitch won’t be in charge of future appointments to the Supremes and rest of the Federal Judiciary is an essential starting place.
A failure to vote this regime out of office in November likely spells the end of American democracy, at least as the majority of us have lived and understand it. And, even though they obviously, and arrogantly, believe themselves to be above the fray and accountability for their actions, the “J.R. Five” eventually would go down in the heap with the rest of our nation.
If nothing else, Trump has made it very clear that HE is the only “judge” he needs, wants, or will tolerate. We have only to look as far as the failed and flailing Immigration “Courts” under Billy Barr to see what the “ideal Trump judiciary” would look and act like.
This November, vote like your life depends on it. Because it does!
Richard W. Mark, Esquire Partner Gibson Dunn New YorkAmer S. Ahmed, Esquire Partner Gibson Dunn New YorkHon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Retired Immigration JudgesKnightess of the Round Table
It is an axiom of due process that a party charged to defend against a legal proceeding must receive notice of the time and place of the proceeding and an opportunity to be heard. This Court’s ruling in Pereira v. Sessions, 138 S. Ct. 2105 (2018), reflects that axiom in the context of initiating removal proceedings by “notice to appear.”
This petition presents a straightforward question of enormous practical significance that has divided the five courts of appeals to have considered the issue: Must the initial written notice served on noncitizens to commence their removal proceedings provide—in
1 All parties have consented to the filing of this brief. Amici state that this brief was not authored in whole or in part by counsel for any party, and that no person or entity other than amici or their counsel made a monetary contribution intended to fund the preparation or submission of this brief.
2 The appendix provides a complete list of signatories.
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one document—the “time and place at which the proceedings will be held” (along with charges and other specified information) in order to satisfy the require- ments of 8 U.S.C. § 1229(a), or does the statute allow the government to cobble together the required elements of a “notice to appear” from multiple documents, issued at different times, none of which alone contain all of the statutorily required information?
Resolution of this issue will affect thousands of people in the immigration system. For noncitizens applying for cancellation of removal, service of a valid “notice to appear” triggers the so-called “stop-time” rule, which terminates the period of continuous pres- ence required for cancellation eligibility. For noncitizens ordered removed in absentia, whether that se- vere penalty is proper depends on whether the notice served on the noncitizen satisfied the requirements of § 1229(a).
This Court should grant review to resolve the accelerating circuit split over this issue. The Fifth Circuit, agreeing with the Sixth Circuit, held that a defective “notice to appear” lacking the statutorily required time-and-place information could be “cured” by a subsequent “notice of hearing” containing that information, such that the separate documents considered together become “a notice to appear,” with the stop- time rule being triggered upon later service of the “curative” notice of hearing. See Yanez-Pena v. Barr, 952 F.3d 239 (5th Cir. 2020); Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019). The Third and Tenth Circuits, based on the plain language of § 1229(a) and this Court’s decision in Pereira, 138 S. Ct. at 2105, have reached the opposite conclusion. See Guadalupe v. Atty. Gen., 951 F.3d 161 (3d Cir. 2020); Banuelos v. Barr, 953 F.3d 1176 (10th Cir. 2020). A divided panel
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of the Ninth Circuit was in accord with the Third and Tenth Circuits, before that court granted rehearing en banc. See Lopez v. Barr, 925 F.3d 396, 405 (9th Cir. 2019), vacated and reh’g en banc granted, 948 F.3d 989 (9th Cir. 2020).
This Court should bring harmony to federal law by granting certiorari, reversing the Fifth Circuit, and restoring the common-sense interpretation of § 1229(a) as requiring one document that satisfies the statute’s requirements.
I. The question presented affects many thousands of people across the country. As the government told this Court in 2018, “almost 100 percent” of putative notices to appear omit the required time-and-place in- formation. Pereira, 138 S. Ct. at 2111. Hundreds of thousands of notices to appear are served each year; a dispute about validity is embedded in every proceed- ing initiated with a notice that lacks time-and-place information. Indeed, tens of thousands of cancellation applications remain pending, each one requiring an IJ to determine whether the stop-time rule was triggered by § 1229(a) notice. Similarly, tens of thousands of in absentia removal orders are issued every year, each one dependent on whether proceedings began with the noncitizen’s being served a notice to appear that com- plies with § 1229(a).
This case involves the application of § 1229(a) in both the cancellation of removal and in absentia removal contexts, thus presenting an optimal vehicle to address the question presented. See Petition for a Writ of Certiorari (“Pet.”) at 22-24.
II. Deciding the question presented will also pro- mote uniformity in the nation’s immigration laws. Uniformity in this sphere is a foundational principle
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of American law, with the Constitution explicitly directing Congress “[t]o establish an uniform Rule of Naturalization.” U.S. Const. art. I, § 8, cl. 4. But there can be no uniform law if basic questions affect- ing the right of an individual to remain in the country get an answer that varies among the circuits. Such a regime would result in divergent outcomes based on geography alone, not the merits of any particular noncitizen’s case.
This unfairness may be exacerbated by the Department of Homeland Security’s (“DHS”) discretion to select the venue for a removal proceeding, and thus the law that governs the case. DHS’s ability to choose the venue, coupled with its ability to transfer detainees wherever it sees fit, opens the door to unfair forum shopping for the circuit law it prefers.
III. Requiring DHS to work with the Executive Office for Immigration Review (“EOIR”) to obtain time-and-place information before serving a notice to appear—and including such information in that document, as § 1229(a) and Pereira require—is practical and will reduce administrative inefficiency and error. Doing so will also achieve the legislative purpose of the Illegal Immigration Reform and Immigration Responsibility Act (“IIRIRA”), Pub. L. 104-208, Div. C, 110 Stat. 3009-546, of which § 1229(a) was a part, by instituting a “single form of notice” to “simplify procedures for initiating removal proceedings.” H.R. Rep. 104-469(I), 1996 WL 168955 at *159.
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Many thanks to our GOOD friends Richard W. Mark and Amer S. Ahmed and their team over at the NY Office of Gibson Dunn for their extraordinary pro bono assistance in drafting our brief.
PRESIDENT TRUMP promised that the $2 trillion economic stimulus bill he signed in March, providing direct payments to tens of millions of Americans, would “deliver urgently needed relief to our nation’s families, workers and businesses.” But more out of spite than in the furtherance of any rational policy goal, several million Americans were specifically excluded from the relief plan: U.S. citizens who are children or spouses of undocumented immigrants.
In the midst of a pandemic ravaging the nation, lawmakers and the administration saw fit to insert and enact that provision of the law, for no apparent reason beyond its punitive effect. The vast majority of the nation’s babies, toddlers, middle-schoolers and teenagers younger than 17 are eligible for $500 payments — generally rendered to their parents — but not if either their mother or father is an unauthorized immigrant.
Nor can U.S. citizen parents receive the $1,200 payment to which they would otherwise be entitled if they file taxes jointly with an undocumented spouse. A household consisting of a married couple with two U.S. citizen children, which would otherwise qualify for $3,400 in benefits, would receive nothing if the undocumented mother filed a joint return with her citizen husband.
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Singling out children for punishment arising from their parents’ immigration status is a senseless act of vengeance. The Trump administration’s attitudes toward legal and illegal immigrants are morally odious and pragmatically misguided, yet this policy stands out as uniquely cruel given that the immigration status of parents does not exclude their U.S. citizen children from receiving a host of other federal benefits, including welfare, food stamps and housing assistance.
What’s particularly senseless is that the administration’s policy of impoverishing households that include undocumented immigrants coincides with a moment in which the nation’s food supply — heavily dependent on those very immigrants — is in peril. By the government’s own estimate, half of all field hands in the country, more than 1 million workers, are illegal immigrants whose labor has been deemed “essential” to keeping grocery shelves stocked with meat and produce. Other such immigrants may have lost jobs this spring in restaurants or as custodians and child-care workers, and are already struggling to care for their children.
A lawsuit has been filed in federal court in Maryland by advocates at Georgetown University Law Center on behalf of the citizen children of unauthorized immigrants. The plaintiffs include a 7-month-old girl, a 9-year-old girl and an 8-year-old boy. The punitive policy will make it more difficult for the children to be adequately fed, housed and clothed at a time of economic duress.
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The effect of the measure is to make second-class citizens of several million American children, nearly all born in this country, and to intensify their family’s suffering even as unemployment tightens its grip. The unconstitutionality of such a discriminatory policy, which flies in the face of the Fifth Amendment’s guarantee of due process, is rivaled only by its mean-spiritedness.
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It’s what happens when Congress and the Courts fail to stand up to irrationality and tyranny.
This November, vote like your life depends on it! Because it does!
Former GULG prisoner Nicholas Morales writes in the LA Times:
I consider myself an American. I came to the United States from Mexico when I was a teenager. I’m now 37 years old. My wife and son are U.S. citizens. For years, I ran my own mechanic shop in New Jersey. I have paid taxes and nearly all my family members live in and around New Jersey, including my brothers, mother, cousins, nephews and nieces. This is the only home I know.
My life shattered on Nov. 21, 2019, when immigration officers picked me up right after I had dropped off my 5-year-old son at school. Although I had been living in the U.S. for almost 20 years, I had not managed to get the right paperwork to be here. The immigration officers took me to the Elizabeth Detention Center — a prison-like structure run by the private corporation CoreCivic. I didn’t have a chance to say goodbye to my son or my wife.
I spent five months at the Elizabeth Detention Center. As the coronavirus pandemic hit our nation and New Jersey became an epicenter, I grew increasingly worried because neither I nor hundreds of immigration detainees had any way to protect ourselves from getting sick.
I first heard rumors of COVID-19 in February. I heard it was a highly contagious illness, that it was worse than the flu, and that it was killing many people. The detention center personnel told us nothing. An Immigration and Customs Enforcement supervisor told us not to believe the news, that the danger of the virus was exaggerated. But by mid-March, we started hearing that someone in the medical unit was showing symptoms.
The Elizabeth Detention Center has capacity for just over 300 people. At nearly all times, I was packed into a large room with other immigrants. Our beds were close together, with only two to three feet between them. We shared toilets, showers, sinks, communal surfaces and breathing air. We did not have hand sanitizer or masks. We could not disinfect our shared surfaces. We could not maintain any meaningful distance among us, let alone six feet of distance. We were never permitted outside; there is no meaningful outdoor space.
As the days passed, we grew increasingly anxious about COVID-19, especially those of us who had health issues or were older. I have bad asthma and I wasn’t alone in wanting to get out. Everyone wanted out. I didn’t have a lawyer, but I was in regular contact with pro bono attorneys who wanted to help me.
Then, on March 13, the detention center halted all visitations, including by attorneys. On March 19, an ICE employee at the facility tested positive for the virus. Still, the facility staff refused to communicate with us about the pandemic, their plans to keep us safe, or whether we might be released. We still did not have access to hand sanitizer or masks to protect ourselves. The facility’s supervisors told us that we couldn’t have any hand sanitizer. The dormitories were still packed with approximately 40 people per unit.
One day in March, I watched a detainee collapse. He was taken away. I do not know if he had the virus. In mid-March, I was diagnosed with bronchitis. I could hear rattling noises in my chest and could not seem to get enough air.
My fellow detainees and I worried we were being left to die. Some of us, in desperation, decided to go on a hunger strike on March 20. The guards then put me in isolation to punish me. While in the box, I felt some relief to be away from the masses.
My breathing continued to worsen. I finally ate food again on March 25, hoping that would improve my condition. On March 31, a pro bono lawyer made an emergency request for my release, which immigration officials denied even though I had such trouble breathing that I needed treatment with an albuterol machine. On April 3, an immigration judge denied my request for release on bond.
Every way I turned seemed to be another dead end. The guards commented disapprovingly when they heard I had been talking to the media about our dire predicament. No help came for us.
I had one last hope for release. I had been included in a group habeas petition filed before the federal district court in New Jersey. Thankfully, I was let out on April 20 because a federal judge determined that COVID-19 posed a particularly serious health risk to me and four others and ordered our immediate release.
I have since returned to my family and isolated myself for 14 days. I lost my mechanic shop while I was in detention because I wasn’t able to pay rent, but I am grateful to be released. I’m now in the process of appealing my deportation order.
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Read the rest of this first-hand account at the link.
Many, many thanks to the pro bono attorneys from the “New Due Process Army” (“NDPA”) who stepped in to save Nicholas’s life snd the lives of many others abandoned in the Gulag. You are the real “warriors” and heroes of our age!🏅🥇😇 Hats off!🎩
It’s clear from accounts like this across the country that the only “real” bond hearings for Gulag inmates that comply with Due Process take place before U.S. District Judges or the U.S. Magistrate Judges who work for them.
So what’s the purpose of a bogus “Court System” run by Sessions and now Billy Barr to function as a subservient branch of DHS Enforcement? None, obviously!
But, it’s worse than that. Because of the outward trappings of a judiciary, the Immigration “Courts” put a “false veneer of justice” on an inherently tainted and unfair process. This wastes time, unnecessarily prolongs detention, squanders public funds, and sometimes leads Article III Judges who are unwilling or unable to understand the process to give “undeserved deference” to the decisions of these kangaroo 🦘courts.
An independent Article I Immigration Court could provide the expertise and efficiency necessary for fair impartial adjudications that comply with due process and develop “best practices.” This, in turn, would relieve the Article III Courts of the burden of having to constantly intervene to correct basic errors in legal analysis, judgment, and process inevitably caused by the improper political objectives driving EOIR’s dysfunction.
Going on five decades in the law has shown me that problems are best corrected by getting things right at the earliest point in the system. That’s clearly not happening with today’s inept, inefficient, and intentionally unjust, politicized, and weaponized Immigration “Courts.”
Until Congress and/or the Article IIIs do their jobs and put an end to this deadly nonsense, it will continue to endanger lives☠️⚰️, burden the justice system⚓️⚖️, and waste public funds 🔥💰.
Immigrant advocates are arguing in court that American citizens who are married to unauthorized immigrants should still be eligible for stimulus checks along with their children.
The $2 trillion Coronavirus Aid, Relief, and Economic Security Act, or CARES Act, gives most taxpayers up to $1,200 and $500 for each of their children under the age of 17. But even if they pay taxes, unauthorized immigrants are not eligible for the stimulus checks, which the government started sending out in April. Neither is anyone else in their household, including their spouses and children, even if their spouses and children are US citizens.
Advocates from Georgetown Law and Villanova Law filed a class action lawsuit in Maryland federal court on Wednesday challenging the CARES Act on behalf of seven US citizen children of unauthorized immigrant taxpayers. They argued that it unfairly discriminates against these children based on their parents’ immigration status and denies them equal protection under the law in violation of the US Constitution’s due process clause.
Immigrant advocates at the Mexican American Legal Defense and Education Fund also filed a lawsuit last week arguing that the CARES Act is unconstitutional because it “discriminates against mixed-status couples.”
“The refusal to distribute this benefit to US citizen children undermines the CARES Act’s goals of providing assistance to Americans in need, frustrates the Act’s efforts to jumpstart the economy, and punishes citizen children for their parents’ status — punishment that is particularly nonsensical given that undocumented immigrants, collectively, pay billions of dollars each year in taxes,” Mary McCord, legal director of Georgetown Law’s Institute for Constitutional Advocacy and Protection, said in a statement.
How the CARES Act penalizes unauthorized immigrants and their families
The bill excludes those in households with people of mixed immigration status, where some tax filers or their children may use what’s called an Individual Taxpayer Identification Number (ITIN).
The IRS issues ITINs to unauthorized immigrants so they can pay taxes, even though they don’t have a Social Security number. If anyone in the household uses an ITIN — either a spouse or a dependent child — that means no one in the household will qualify for the stimulus checks unless one spouse served in the military in 2019.
If the law is allowed to stand, it could impact an estimated 16.7 million people who live in mixed-status households nationwide, including 8.2 million US-born or naturalized citizens.
The exclusion for mixed-status households defies current practices: Many other federal programs are designed in such a way that US citizen children of unauthorized immigrants can access necessary benefits, including the child tax credit, food stamps, housing assistance, welfare benefits, and benefits from the Special Supplemental Nutrition Program for Women, Infants, and Children.
But there is a precedent for this kind of exclusion. Amid the global financial crisis in 2008, Congress handed out tax rebates to most American taxpayers, except for the spouses of immigrants who didn’t have Social Security numbers.
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Read the rest of Nicole’s outstanding analysis at the link.
