Judge Stephen Reinhardt – immigrationcourtside.com

SUPREMES: DEAD JUDGES CAN’T VOTE! — Federal Judges Serve For Life, Not Eternity!

https://www.washingtonpost.com/politics/courts_law/judges-are-appointed-for-life-not-eternity-supreme-court-rules/2019/02/25/3278a54e-390b-11e9-a2cd-307b06d0257b_story.html

Robert Barnes for the Washington Post:

“Federal judges are appointed for life, not for eternity,” the Supreme Court concluded Monday, saying the late judge Stephen Reinhardt’s vote should not have been counted in a decision issued after his death.

In an unsigned opinion, the justices sent back a decision of the U.S. Court of Appeals for the 9th Circuit that found a practice of the Fresno County Office of Education violated the Equal Pay Act of 1963.

Reinhardt died March 29, 2018, but the 9th Circuit counted his vote after that. He was listed as the author of an en banc decision — one made by a majority of the full court — 11 days later.

“Without Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed,” the opinion stated. “Although the other five living judges concurred in the judgment, they did so for different reasons. The upshot is that Judge Reinhardt’s vote made a difference.”

The court decided that was unlawful.

“That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death,” the opinion said. “But federal judges are appointed for life, not for eternity.”

Because the opinion is unsigned, lost perhaps for eternity will be the identity of the justice who penned that line. But it was not Justice Sonia Sotomayor, who noted that she “concurs in the judgment.”

The case, Yovino v. Rizo, returns to the 9th Circuit.

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Sorry Judcge Reinhardt. The “Heavenly Bench” doesn’t get to vote on temporal matters.

Actually we had this rule at the “Old BIA:” The Appellate Judge’s vote didn’t count if he or she retired before the decision was actually issued by our Clerk’s Office. Thankfully, during my tenure, none of my judicial colleagues died on duty.

PWS

02-16-19

JUDGE STEPHEN REINHARDT 1931-2018 – Stalwart Defender Of US Constitution, Due Process, & Individual Rights Dies At 87 – “Unapologetic Liberal” Jurist Stood On Principle, Unfazed By Grenades Constantly Lobbed His Way By Right Wing & Supremes!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=92a5fc77-cf2b-4fbf-ac39-2ef3b89812fa

Maura Dolan reports for the LA Times:

By

Judge Stephen Reinhardt, the liberal face of the 9th U.S. Circuit Court of Appeals, died Thursday afternoon, a court spokesman said. He was 87.

The spokesman said Reinhardt died of a heart attack during a visit to a dermatologist in Los Angeles.

“All of us here at the 9th Circuit are shocked and deeply saddened by Judge Reinhardt’s death,” 9th Circuit Chief Judge Sidney R. Thomas said. “We have lost a wonderful colleague and friend.”

Thomas called Reinhardt “deeply principled, fiercely passionate about the law and fearless in his decisions.”

“He will be remembered as one of the giants of the federal bench. He had a great life that ended much too soon,” Thomas said.

Reinhardt, an appointee of former President Carter, was dubbed the “liberal lion” of the federal circuit courts.

His rulings in favor of criminal defendants, minorities and immigrants were often overturned by the more conservative U.S. Supreme Court.

Many lawyers have joked that Reinhardt’s name on a ruling was probably enough to get the attention of the conservatives on the Supreme Court. In 1996, after Reinhardt was reversed several times by the Supreme Court, The Times asked him if he was upset.

“Not in the slightest!” he boomed. “If they want to take away rights, that’s their privilege. But I’m not going to help them do it.”

No matter how many reversals he endured, Reinhardt used the bench to try to help the underdog. Just a few months ago, he called The Times to read a reporter a letter from a woman who had just been released from prison and who wanted to thank him for ruling in her favor.

“He was a giant not just on the 9th Circuit but within the law,” UC Berkeley law school Dean Erwin Chemerinsky said. “He also was a judge with a particular vision of the law, based on enforcing the Constitution to protect people.”

Reinhardt joined another judge in ruling that the words “under God” in the Pledge of Allegiance were unconstitutional, a decision that was later overturned.

He wrote a ruling that said laws prohibiting physician-assisted suicide were unconstitutional and another that overturned California’s previous ban on same-sex marriage.

Reinhardt also lamented Supreme Court rulings that limited judges’ ability to overturn convictions and sentences on habeas corpus and complained about the flaws in death penalty cases.

He was among the federal judges who decided that overcrowding in California’s prison system was unconstitutional.

“His view was to decide cases as he believed the law required, not to predict what the Supreme Court would do,” Chemerinsky said. “He was unapologetic about that.”

Conservatives often railed against Reinhardt, calling him lawless. They accused him of never voting to uphold a death sentence. Reinhardt, asked about that, said he was not sure.

He was particularly close to former 9th Circuit Judge Alex Kozinski, considered a conservative with libertarian views. They were dubbed the “odd couple.”

When Kozinski retired under pressure in December in response to sexual harassment allegations, Reinhardt bemoaned the departure. He said he kept a photograph of Kozinski planting a kiss on his cheek in his chambers.

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Read Dolan’s complete obit on Judge Reinhardt at the above link.

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My friend and former BIA colleague Judge Lory Diana Rosenberg added this heartfelt tribute:

I am heartbroken to learn of Judge Reinhardt’s dying. Just knowing he was alive and participating in our courts gave me deep hope that justice would prevail, at least in some quarters. I am so fortunate to have known him and to have spent a tiny bit of time with him and his wife at an international meeting years ago. He is a giant among judges. I will miss him.

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Here’s an excerpt from my favorite Judge Reinhardt concurring opinion in Magna-Ortiz v. Sessions:

The government’s insistence on expelling a good man from the country in which he has lived for the past 28 years deprives his children of their right to be with their father, his wife of her right to be with her husband, and our country of a productive and responsible member of our community. Magana Ortiz, who first entered the United States at 15, is now 43 years old, and during his almost three decades here has raised a family and built a successful life. All of his children, ages 12, 14, and 20, were born in this country and are American citizens, as is his wife. His eldest daughter currently attends the University of Hawaii, and he is paying for her education.

. . .

President Trump has claimed that his immigration policies would target the “bad hombres.” The government’s decision to remove Magana Ortiz shows that even the “good hombres” are not safe.3 Magana Ortiz is by all accounts a pillar of his community and a devoted father and husband. It is difficult to see how the government’s decision to expel him is consistent with the President’s promise of an immigration system with “a lot of heart.” I find no such compassion in the government’s choice to deport Magana Ortiz.

We are unable to prevent Magana Ortiz’s removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government’s decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.

2 The family’s right to occupy their home will terminate upon Magana Ortiz’s removal.

3 On January 25, 2017, the President signed a series of executive orders dismantling the system of priorities that had previously guided Immigration and Customs Enforcement and Border Patrol in determining whom to deport. The orders also gave far greater authority to individual agents and officers, who are now removing non-citizens simply because they are here illegally, regardless of whether they have committed any offense. In light of the breadth of these orders and the lack of any apparent limit on agents’ discretion, the undocumented must now choose between going to work, school, hospitals, and even court, and the risk of being seized. See James Queally, ICE Agents Make Arrests at Courthouses, L.A. Times, March 16, 2017.

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I must say that I had the same feelings as Judge Reinhardt on a number of occasions in my judicial career, although I never expressed them as eloquently as he did.

The wastefulness and futility of spending Government time, money, and authority removing fine people who were making remarkable contributions to our country, our economy, and our society certainly was apparent at the Immigration Court level. That this Administration has cynically chosen to aggravate this inhumane and quite frankly stupid situation rather than to attempt to fix it is most disheartening as is the fact that by placing them and retaining them in power we all become complicit in their bias and injustice! Harm to the most vulnerable among us is harm to all!

You can read the 9th Circuit’s complete decision in Magana Ortiz v. Sessions including Judge Reinhardt’s concurrence at this link:

Magana-Ortiz-9thReinhardt17-16014

PWS

03-30-18

9TH STOMPS BIA’S “ABSURD” INTERPRETATION OF THE CHILD STATUS PROTECTION ACT (“CSPA”) IN Matter of Zamora-Molina, 25 I. & N. Dec. 606 (BIA 2011) – TOVAR V. SESSIONS – Congress Intended The CSPA To Help Immigrant Kids – But, You’d Never Know It From The Anti-Immigrant Interpretations Of DHS & The BIA!

9th-Tovar-CSPA-Absurd

Tovar v. Sessions, 9th Cir., 02-14-18, Published

PANEL: Dorothy W. Nelson and Stephen Reinhardt, Circuit Judges, and George Caram Steeh,* District Judge.

* The Honorable George Caram Steeh III, United States District Judge for the Eastern District of Michigan, sitting by designation.

OPINION BY: Judge Stephen Reinhardt

SUMMARY (BY COURT STAFF):

“Immigration

The panel granted and remanded Margarito Rodriguez Tovar’s petition for review of a Board of Immigration Appeals decision rejecting his application for adjustment of status.

Relying on the BIA’s published opinion in Matter of Zamora-Molina, 25 I. & N. Dec. 606 (BIA 2011), the immigration judge and BIA rejected Rodriguez Tovar’s application for adjustment of status. The agency held that, because Rodriguez Tovar was over 21 years old in biological age on the date of his father’s naturalization, his F2A visa petition (for a minor child of a lawful permanent resident) immediately converted to an F1 visa petition (for an adult child of a U.S. citizen), and not to an immediate relative petition. The agency came to this conclusion even though Rodriguez Tovar was classified by statute as under 21 years old for purposes of his F2A petition, pursuant to the age calculation formula set forth by the Child Status Protection Act. The BIA concluded that Rodriguez Tovar was not eligible for adjustment of status because no visa was immediately available and that Rodriguez Tovar would be subject to removal forthwith.

The panel observed that if Rodriguez Tovar’s father had remained an LPR instead of becoming a citizen, Rodriguez Tovar would have been eligible for a visa in the F2A category

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

RODRIGUEZ TOVAR V. SESSIONS 3

in 2007, at which point his age under the statute would have been 20. Similarly, had he been afforded his statutory age when his father became a citizen, he would have been eligible for a visa immediately. The panel also noted that the government’s position would lead to the absurd result that Rodriguez Tovar would have to wait in line for a visa abroad and not become eligible for an F1 visa until more than twenty years after he would have been eligible for an F2A visa but for his father’s naturalization.

Concluding that Congress had clear intent on the question at issue, the panel did not defer to the BIA’s opinion in Matter of Zamora-Molina. Reading the statue as a whole, the panel concluded that Congress intended “age of the alien on the date of the parent’s naturalization,” 8 U.S.C. § 1151(f)(2), to refer to statutory age—that is, age calculated according to 8 U.S.C. § 1153(h)(1). Under that statute, Rodriguez Tovar’s age was only 19 on the date of his father’s naturalization. Accordingly, the panel concluded that Rodriguez Tovar’s visa application must be treated as one for an immediate relative of a U.S. citizen, for which visas are always immediately available.”

KEY QUOTE:

“[I]nterpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982). Accordingly, we conclude “that Congress had a clear intent on the question at issue,” The Wilderness Soc’y, 353 F.3d at 1059: children of LPRs may take advantage of the age- calculation formula in 8 U.S.C. § 1153(h)(1) for purposes of converting to immediate relative status under § 1151(f)(2) when their parents naturalize.

22 RODRIGUEZ TOVAR V. SESSIONS

In other words, “age” in 8 U.S.C. § 1151(f)(2) refers unambiguously to age as calculated under 8 U.S.C. § 1153(h)(1). We reject the BIA’s contrary holding in Matter of Zamora-Molina, 25 I. & N. Dec. 606, as well as the district court’s parallel reasoning in Alcaraz v. Tillerson, No. 2:17- cv-457-ODW (C.D. Cal. July 26, 2017). The petition for review is granted and the case is remanded to the BIA with instructions to find that Rodriguez Tovar has an immediately available visa as the immediate relative of a U.S. citizen and to conduct further proceedings regarding the other requirements for adjustment of status.”

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As I have pointed out before, the BIA generally chooses the interpretation of law that is most favorable to DHS and least favorable to the individual. Rather than the BIA acting to protect individual rights under the Due Process clause of our Constitution, today’s BIA basically engages in a “tag team match” with the DHS to defeat individual interests, even those as compelling as the rights of immigrant families and children!

Meanwhile, as these glaring problems with pro-DHS bias and poor quality work from a supposedly “expert tribunal” fester, Sessions actively pushes to have Immigration Judges at all levels “pedal faster” so that more mistakes are made and more individuals are deported in violation of our laws. Remember, very few of the individuals wronged by poor work by Immigration Judges or the BIA can afford to go to the Courts of Appeals for vindication! The problems that my colleague Hon. Jeffrey Chase and I, along with others, have been highlighting are literally just the “tip of the iceberg” of the monumental legal quality and fairness issues working against individual migrants in today’s out of control, failing, U.S. Immigration Courts.

Another thing to consider: take a look at the complexity of this decision, charts and all. How would an unrepresented individual, particularly a child, fairly be able to represent him or herself in Immigration Court and before the BIA. The obvious answer: They wouldn’t!

How will these glaring Due Process, fairness, and quality control problems be solved by Sessions’s anti-Due Process “round ’em up and move ’em out” policies? Answer: They won’t!

We need an independent Article I U.S. Immigration Court. Harm to our most vulnerable is harm to all of us!

PWS

03-01-18

LPR CANCELLATION: Split 9th Follows 5th — Holds That “Admission In Any Status” Includes Unlawful Status — Saldivar v. Sessions!

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/07/13-72643.pdf

Saldivar v. Sessions, 9th Cir., 11-07-17, published

PANEL: Stephen Reinhardt, Alex Kozinski, and Kim McLane Wardlaw, Circuit Judges.

OPINION BY: Judge Reinhardt

DISSENT: Judge Kozinski

KEY QUOTE:

“The structure of § 1229b thus confirms what was already unambiguously clear from the plain meaning of the text: the statute requires continuous presence for seven years after a procedurally lawful admission in any immigration status, lawful or unlawful.8 Perhaps, had Congress required admission “in any status whatsoever” in § 1229b(a)(2), the government might have acknowledged that unlawful status was covered by the phrase it now finds ambiguous. However, as we have explained, the term “any,” in its plain meaning, is all-inclusive and any further language would be pure surplusage. In short, any is any, and a status is a status, be it lawful or unlawful.”

JUDGE KOZINSKI, DISSENTING, WAS UNIMPRESSED:

“My colleagues misread the INA, trample our precedent and turn their backs on Chevron, all to create a giant loophole that will enable thousands to lie their way to relief that Congress never intended them to have. The Fifth Circuit got it wrong and the Ninth now follows them down the rabbit hole. It’s time for another opinion.”

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Read the complete opinion at the link.

The 9th Circuit majority declines to give the “Chevron deference” to the BIA precedent Matter of Blancas- Lara, 23 I. & N. Dec. 458, 460 (BIA 2002) by finding the statute “unambiguous.” So far, no “Circuit split.”

Undoubtedly, migrants without visas arriving at the border have lots of reasons to lie or otherwise misrepresent. However, with due deference to Judge Kozinski, it seems highly unlikely that the off-chance of applying for discretionary relief 10 years in the future would be one of them.

I find it interesting that it has taken 15 years since the BIA’s decision in Blancas-Lara for the Article IIIs to come to grips with the issue.

PWS

11-11-17

DUE PROCESS WINS IN 9TH CIR! – DHS & IJS REQUIRED TO CONSIDER “ABILITY TO PAY” IN SETTING BOND! – HERNANDEZ V. SESSIONS

9TH-HERNANDEZ-BOND-2017

Hernandez v. Sessions, 9th Cir., 10-02-17 (Published)

PANEL: Stephen Reinhardt, Ferdinand F. Fernandez, and Kim McLane Wardlaw, Circuit Judges.

OPINION BY: Judge Reinhardt

CONCURRING & DISSENTING OPINION: Judge Fernandez

KEY QUOTE:

“Plaintiffs are likely to succeed on their challenge under the Due Process Clause to the government’s policy of allowing ICE and IJs to set immigration bond amounts without considering the detainees’ financial circumstances or alternative conditions of release. The government has failed to offer any convincing reason why these factors should not be considered in bond hearings for non-citizens who are determined not to be a danger to the community and not to be so great a flight risk as to require detention without bond. The irreparable harm to Plaintiffs of detention pursuant to bond amounts determined through a likely unconstitutional process far outweighs the minimal administrative burdens to the government of complying with the injunction while this case proceeds.

The district court’s order granting the preliminary injunction is AFFIRMED.

29 The government also challenges the requirement that it meet and confer with Plaintiffs to develop guidelines for future immigration hearings. According to the government, this requirement gives “Plaintiffs’ counsel veto authority over the terms and guidelines to be used in those bond proceedings, [which] violates Congress’s delegation of such authority to the Executive.” To the contrary, the district court retains authority to resolve any disputes between the parties regarding implementation of the injunction. The requirement that the parties meet and confer is merely an administrative mechanism to reduce unnecessary burdens on the district court’s resources. It is an entirely ordinary exercise of the district court’s authority to manage cases and to encourage cooperation before parties resort to asking the court to resolve a dispute. See, e.g., C.D. Cal. L.R. 7-3 (requiring parties to confer prior to filing most motions and to file the motion only if the parties are “unable to reach a resolution which eliminates the necessity for a hearing”).”

KEY QUOTE FROM JUDGE FERNANDEZ, CONCURRING & DISSENTING:

“I agree that the district court did not abuse its discretion when it decided to issue a preliminary injunction requiring the consideration of “financial ability” and “alternative conditions of supervision”1 in making determinations regarding the release of aliens who have been detained pursuant to 8 U.S.C. § 1226(a). However, I do not agree with the breadth of the injunctive order that was issued. Thus, I respectfully concur in part and dissent in part.”

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Read the full decision at the above link.

WHY IT’S IMPORTANT

With an estimated 10 to 11 million “undocumented migrants” currently in the U.S., hundreds of thousands of cases annually being added to the U.S. Immigration Courts’ already out of control docket of 630,000 cases, and the Trump Administration’s “gonzo” enforcement policy where line agents often arbitrarily decide which migrants to place in Immigration Court (presumably somewhat driven by the need to show “numbers” for budget and performance purposes), one thing is obvious: The system would collapse immediately if everyone apprehended by the DHS at the border and in the interior simply insisted on a full due process “Individual Merits” hearing. Thus, the migrants’s exercise of the Constitutional right to due process and a meaningful opportunity to be heard is the enemy of DHS’s out of control, “gonzo” enforcement.

So, what is DHS to do to suppress this dangerous exercise of constitutional rights? Here are DHS’s “strategies:”

Avoid the hearing process entirely by using some form of “expedited removal” which avoids Immigration Court altogether;
In absentia orders, often based on incomplete address information and inadequate warnings being given to migrants by DHS and/or on sloppy address recording and hearing notice procedures by DHS and EOIR resulting in individuals being clueless about their so-called “final orders” and therefore ill-equipped to exercise their statutory right to move for reopening;
Coercive detention, used to demoralize, discourage, and duress migrants into “waiving” their due process rights and agreeing to depart without a merits hearing either by so-called “voluntary departure” or an uncontested final order.

Obviously, setting reasonable bonds that allow-income migrants can actually pay interferes with the full coerciveness of detention. Once released, migrants have a better chance of locating an attorney, filing a plausible application for relief, and ultimately being granted permission to stay. Therefore, resisting and “monkey wrenching” reasonable release on bonds is a key element of the current DHS “gonzo” enforcement strategy.

One of the ways that most fair U.S. Immigration Judges combat this is by using various “arbitration and mediation skills” to encourage DHS to accept reasonable bonds and waive appeal. But, as previously reported, counsel across the country report that DHS is refusing to negotiate bonds and appealing many of those set by the IJ. In other words, DHS is hoping that the coercive effect of detention will force folks to leave without a hearing before they run out of detention space in the New American Gulag.

Thus, U.S. Immigration Judges have become somewhat feckless in the bond process. DHS simply “blows off” the IJs’ entreaties to negotiate because DHS knows that they can unilaterally block release pending appeal anyway. And, as I previously pointed out, the BIA routinely holds bond appeals pending the completion of detained merits hearings and then simply dismisses the bond appeal as “moot.” As one (now former) Assistant Chief Counsel in Arlington undiplomatically informed me during a bond hearing shortly after I took the bench in 2003: “You can enter any order you want Judge, but the Detention Officer is going to decide whether or not this respondent gets released.” That’s the point at which I became an “Article I convert.”

Consequently, an Article III (a/k/a “Real”) Court enforcing due process and also requiring the DHS to negotiate some reasonable criteria and procedures for release on bond is both essential to our Constitutional system of due process and justice and also is a direct threat to unbridled DHS “gonzo enforcement.” As you can see from “FN 29” above, DHS has absolutely no interest in settling this case on a reasonable basis, although urged to do so by both the US District Court and the Court of Appeals. They expect and want the Article III Courts to “just roll over” like the “captive” Immigration Courts do.

Consequently, we can expect the Administration to fight tooth and nail against all efforts to put meaning in the currently largely false promise of Due Process in Immigration Court! Expect a DHS appeal to the Supremes! Stay tuned!

PWS

10-03-17

IMMIGRATIONPROF: Dean Kevin Johnson Gives Us The Supreme’s “Immigration Lineup” For Oct. 2107 — It’s Much More Than Just The Travel Ban!

http://lawprofessors.typepad.com/immigration/2017/09/sessions-v-dimaya-oral-argument-october-2-jennings-v-rodriguez-oral-argument-oct-3-trump-v-intl-refugee-assistance-p.html

Dean Johnson writes:

”The Supreme Court will hear four oral argument in four cases in the first two weeks of the 2017 Term. And the cases raise challenging constitutional law issues that could forecever change immigration law. Watch this blog for previews of the oral arguments in the cases.

Sessions v. Dimaya, Oral Argument October 2. The U.S. Court of Appeals for the Ninth Circuit, in an opinion by the liberal lion Judge Stephen Reinhardt, held that a criminal removal provision, including the phrase “crime of violence,” was void for vagueness.

Jennings v. Rodriguez, Oral Argument, October 3. The Ninth Circuit, in an opinion by Judge Kim McLane Wardlaw, found that the indefinite detention of immigrants violated the U.S. Constitution.

Dimaya and Jennings are being re-argued, both having originally been argued before Justice Scalia. One can assume that the eight Justice Court was divided and that Justice Gorsuch may well be the tiebreaker.

The final two immigration cases are the “travel ban” cases arising out of President Trump’s March Executive Order:

Trump v. Int’l Refugee Assistance Project. Oral Argument October 10.

Trump v. Hawaii. Oral Argument October 10.”

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Go on over to ImmigrationProf Blog at the above link where they have working links that will let you learn about the issues in these cases.

PWS

09-18-17

9th Circuit Upholds Judge Gee’s Order Requiring Bond Hearings For Children! — Flores v. Sessions!

http://www.latimes.com/local/lanow/la-me-ln-minor-immigrants-9th-circuit-20170705-story.html

Maura Dolan reports in the LA Times

“Minors who enter the U.S. without permission must be given a court hearing to determine whether they can be released, a federal appeals court panel decided unanimously Wednesday.

A three-judge panel of the U.S. 9th Circuit Court of Appeals said immigration authorities continue to be bound by a 1997 lawsuit settlement that guaranteed court hearings for minor immigrants, set standards for their detention and established a policy in favor of their release.

Following that settlement, Congress passed two laws dealing with unaccompanied minor immigrants. The federal government argued those laws replaced the settlement and revoked the right to bond hearings.

The 9th Circuit disagreed.

“In the absence of such hearings, these children are held in bureaucratic limbo, left to rely upon the [government’s] alleged benevolence and opaque decision making,” Judge Stephen Reinhardt, a Carter appointee, wrote for the court.

The settlement of Flores vs. Janet Reno required that juveniles detained near the border or elsewhere without a parent must be given bond hearings.

The hearings gave minors the right to a lawyer, an opportunity to learn and challenge government evidence against them and the right to contest being locked up, the panel said.

The 9th Circuit cited evidence that the government has been holding minors for months or even years without hearings, even when parents are nearby and can care for them.

Among them was a boy identified only as Hector, who was detained in California at the age of 15 for 480 days, mostly in a locked facility in Yolo County. The ruling did not say why Hector was picked up.

In a declaration, Hector described the Yolo County facility as a prison, where minors were locked in cells at night to sleep on cement benches with mattresses.

During 16 months there, Hector was not given a lawyer or an explanation about why he was being held even though his mother in Los Angeles was seeking his release, the 9th Circuit said.

Without any explanation, the federal government released Hector in December “into the custody of the person who had been advocating for his freedom all along — his mother,” Reinhardt wrote.

The court cited evidence that some juveniles have agreed to deportation rather than face continued incarceration without their families.

“Unaccompanied minors today face an impossible choice between what is, in effect, indefinite detention in prison, and agreeing to their own removal and possible persecution” in their native countries, Reinhardt wrote.

The ruling upheld a decision by Los Angeles-based U.S. Dist. Judge Dolly M. Gee, an Obama appointee.

The government may appeal the panel’s decision to a larger 9th Circuit panel or to the U.S. Supreme Court.

Lawyers in the case could not be reached for comment.”

Here’s a link to the 9th Circuit’s full 40-page opinion:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/05/17-55208.pdf

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If you want to skip the legal gobbledygook (although the fact situations described are interesting and meaningful), the bottom lines are: 1) the last four Administrations have been to varying degrees tone-deaf to the needs of unaccompanied minors subject to immigration proceedings; 2) bond hearing before U.S. Immigration Judges play a critical role in protecting the rights of children and insuring due process.

PWS

07-05-17

Supremes Drop Back, Boot It Deep, J. Gorsuch Calls For Fair Catch, Play To Resume In Fall Quarter! — I.O.W. They “Punted” The 3 Remaining Immigration Cases On The Fall 2016 Docket!

Actually, only two of them”went to Gorsuch,” that is, were set for re-arguement next Fall, presumably because the Justices were tied 4-4. The other case was kicked back to the 9th Circuit to reconsider in light of Ziglar v. Abbasi, the Court’s recent decision on “Bivens actions.” Here’s a link to my prior Ziglar blog:

http://immigrationcourtside.com/2017/06/19/relax-cabinet-members-supremes-say-no-monetary-damages-for-unconstitutional-acts-ziglar-v-abbasi/

You can read all about it over on ImmigrationProf Blog in a short article by Dean Kevin Johnson at this link:

http://lawprofessors.typepad.com/immigration/2017/06/supreme-court-ends-2016-term-with-three-immigration-decisions.html

PWS

06-26-17

9th Circuit’s Judge Reinhardt Blasts Trump Enforcement Policies As Diminishing Judges’ “Dignity And Humanity!”

Magana Ortiz–Reinhardt

In a published concurring opinion from the denial of a stay of removal, Judge Reinhardt write, in part:

“We are unable to prevent Magana Ortiz’s removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government’s decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.”

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Judge Reinhardt is a well-know liberal jurist, so perhaps his candid remarks come as no surprise. Read his full opinion which gives the facts of Magana Ortiz’s situation.

During most of my career at Arlington, I felt that everyone in the courtroom had worked hard to reach the fairest and best possible result under the law. Basically, whenever we could legitimately save someone’s life in accordance with the law, we did. During my tenure, I received tremendous cooperation and support not only from the private immigration bar but also from the DHS Office of Chief Counsel, which often could help achieve reasonable solutions that would have been outside of my reach. But, sadly, from feedback I am getting, that spirit of teamwork and cooperation in achieving justice seems to have disappeared under the new regime.

Even in Arlington, however, there were a few days when I felt like Judge Reinhardt. I was entering orders of removal against folks who, while not legally entitled to remain, were actually assets to our country. In other words, by enforcing the law, I was actually making things worse, not only for the individual, but for his or her family, their community, and the overall interests of our country.

This has become particularly true as successive administrations have filled U.S. Immigration Court dockets with cases that there is no hope of completing in a timeframe that would produce a fair result. Yet, the cases, and the lives involved in them, linger and are passed from docket to docket, from court to court, from date to date, as one misguided set of “priorities” replaces another one in a system where political operatives ultimately pull all the strings.

This is what I call “Aimless Docket Reshuffling;” and it is close to bringing down the entire U.S. Immigration Court system, and a large chunk of the American justice system with it.

PWS

05-30-17

New From 9th Circuit: Ayala v. Sessions — Reaffirming “economic extortion on the basis of a protected characteristic can constitute persecution!” — Judicial Review of Credible Fear/Reinstatement — “Extortion Plus” Reaffirmed!

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/01/13-72250.pdf

“The IJ abused his discretion in concluding that there was no legal error in his previous opinion affirming the negative reasonable fear determination.5 Contrary to the IJ’s holding, our precedents make clear that economic extortion on the basis of a protected characteristic can constitute persecution.

5 We review the legal error de novo and conclude that the IJ abused his discretion in reaching the result he did. See Popa v. Holder, 571 F.3d 890, 894 (9th Cir. 2009) (“An IJ abuses his discretion when he acts arbitrarily, irrationally, or contrary to law.”) (citations and quotation marks omitted); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990) (“A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.”).

AYALA V. SESSIONS 17

Borja, 175 F.3d at 736; Barajas-Romero, 846 F.3d at 357 & n.5 (“A person seeking withholding of removal must prove not only that his life or freedom will be threatened in his home country, but also that the threat is ‘because of’ one of the five listed reasons:” race, religion, nationality, membership in a particular social group, or political opinion) (citing 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)). In Borja, for example, the petitioner suffered past persecution on account of her political opinion when she was extorted partly for economic reasons and partly on the basis of her political statements. 175 F.3d at 736. We described this type of persecution as “extortion plus”—that is, extortion, with the threat of violence, on the basis of a protected characteristic. Id.

Here, Ayala testified that she suffered this type of persecution by stating that she faced extortion, and threats of violence, not only for economic reasons, but also because of her family ties. Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015) (“[T]he family remains the quintessential particular social group.”). Whatever the merits of her claim, it was legal error for the IJ to hold that extortion could not constitute persecution for the purposes of withholding of removal: where the petitioner’s membership in a particular social group (in this case, a family) is at least “a reason” for the extortion, it is sufficient to meet the nexus requirement for withholding of removal. See Barajas-Romero, 846 F.3d at 360 (Post REAL-ID withholding claims are not governed by the “one central reason” test that applies to asylum claims, but instead require only that a protected ground was “a reason” for persecution, which “is a less demanding standard.”).

18 AYALA V. SESSIONS

Therefore, we grant Ayala’s petition for review, and remand for the IJ to address whether Ayala has established a reasonable fear based on her extortion-plus claim of persecution.

CONCLUSION

We have jurisdiction to review the IJ’s negative reasonable fear determination relating to the reinstatement of Ayala’s expedited removal order. The BIA’s dismissal of Ayala’s appeal for lack of jurisdiction was the final order of removal; therefore, Ayala’s petition for review is timely because it was filed less than 30 days after that order.

We hold that the IJ abused his discretion in concluding that extortion could not constitute past persecution, and in failing to consider the question of Ayala’s family ties. Therefore, we GRANT Ayala’s petition for review and REMAND for proceedings consistent with this opinion.”

PANEL:

Stephen Reinhardt and Kim McLane Wardlaw, Circuit Judges, and Edward R. Korman,* District Judge. (*The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.)

OPINION BY: Judge Reinhardt

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

In my experience, U.S. Immigration Judges, the BIA, and some Courts of Appeals make the mistake highlighted by the 9th Circuit in far too many instances by summarily disregarding credible claims of persecution based on extortion. That’s why the Trump Administration’s effort to “heighten” the standards for “credible fear” and “reasonable fear” of persecution will almost certainly compromise due process and fairness.

PWS

05-01-17

4th Cir. Judges File Separate Opinion Praising Bravery Of Transgender Teen — Take Shot At Those On The “Wrong Side Of History!”

Senior Judge Davis, joined by Judge Floyd said this in a published separate opinion:

“Our country has a long and ignominious history of discriminating against our most vulnerable and powerless. We have an equally long history, however, of brave individuals—Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell, to name just a few—who refused to accept quietly the injustices that were perpetuated against them. It is unsurprising, of course, that the burden of confronting and remedying injustice falls on the shoulders of the oppressed. These individuals looked to the federal courts to vindicate their claims to human dignity, but as the names listed above make clear, the judiciary’s response has been decidedly mixed. Today, G.G. adds his name to the list of plaintiffs whose struggle for justice has been delayed and rebuffed; as Dr. King reminded us, however, “the arc of the moral universe is long, but it bends toward justice.” G.G.’s journey is delayed but not finished.

G.G.’s case is about much more than bathrooms. It’s about a boy asking his school to treat him just like any other boy. It’s about protecting the rights of transgender people in public spaces and not forcing them to exist on the margins. It’s about governmental validation of the existence and experiences of transgender people, as well as the simple recognition of their humanity. His case is part of a larger movement that is redefining and broadening the scope of civil and human rights so that they extend to a vulnerable group that has traditionally been unrecognized, unrepresented, and unprotected.

. . . .

G.G.’s lawsuit also has demonstrated that some entities will not protect the rights of others unless compelled to do so. Today, hatred, intolerance, and discrimination persist — and are sometimes even promoted — but by challenging unjust policies rooted in invidious discrimination, G.G. takes his place among other modern-day human rights leaders who strive to ensure that, one day, equality will prevail, and that the core dignity of every one of our brothers and sisters is respected by lawmakers and others who wield power over their lives.”

The full opinion is well worth a read. Here’s a link: 161733R1.P-4th Circuit GG

Judge Davis incorporates this poem,

Famous by N.S. Nye:

The river is famous to the fish.

The loud voice is famous to silence, which knew it would inherit the earth before anybody said so.

The cat sleeping on the fence is famous to the birds watching him from the birdhouse.

The tear is famous, briefly, to the cheek.

The idea you carry close to your bosom is famous to your bosom.

The boot is famous to the earth, more famous than the dress shoe, which is famous only to floors.

The bent photograph is famous to the one who carries it and not at all famous to the one who is pictured.

I want to be famous to shuffling men who smile while crossing streets, sticky children in grocery lines, famous as the one who smiled back.

I want to be famous in the way a pulley is famous,
or a buttonhole, not because it did anything spectacular, but because it never forgot what it could do.

Here’s an article from yesterday’s Washington Post explaining the context of the 4th Circuit’s procedural decision and why the published, signed separate opinion is unusual.

https://www.washingtonpost.com/local/public-safety/judges-hail-transgender-teen-gavin-grimm-as-human-rights-leader/2017/04/07/ade47f12-1bc8-11e7-bcc2-7d1a0973e7b2_story.html?utm_term=.11ce2b2d3a58

The case is G.G. v. Gloucester County School Board.

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

The Trump Administration’s attacks on vulnerable individuals such as Muslims, migrants, and now transgender students have given rise to an interesting new phenomenon in the U.S. Courts of Appeals: separate published opinions vigorously commenting on or dissenting from what normally would be routine, unsigned, unpublished, barely noticed, procedural orders.

Another good example was the recent spate of published opinions dissenting and concurring with the granting of an uncontested motion by the Government to dismiss the appeal from the TRO in State of Washington v. Trump (“Travel Ban 1.0”) which I discussed in an earlier blog: http://wp.me/p8eeJm-vM

In the 9th Circuit case, several judges used separate opinions to lash out at their colleagues and show their support for the Trump Administration’s “Travel Ban 1.0.” This drew a reaction from some of their colleagues who accused the dissenters of using the forum and device of the separate opinions to deliver a message to politicians, other courts, and the parties for use in future litigation that was not yet before the court. In other words, to influence matters that were not part of the the actual “case or controversy” before the court, which was being dismissed without objection by either party.

In any event, in just a short time in office, the Trump Administration has “gotten the attention” of normally aloof and “ivory towerish” Federal Appellate Judges who seem to be energized and eager to engage in the fray with the Administration, its detractors, and each other.

PWS

04-09-17

TRAVEL BAN UPDATE: “SOPS” Continue To Flow From 9th Cir. Judges in Washington v. Trump — WSJ & WASHPOST Hang “Stupid But Constitutional” Tag On Trump — CNN’s Danny Cevallos Agrees With Rappaport That Trump Has Good Chance Of Ultimate Legal Win!

What’s a “SOP?” That was BIA lingo for “separate opinion,” a fairly frequent occurrence on the “Schmidt Board.”

There are now five separate opinions commenting on the refusal of the en banc 9th Circuit to vacate the panel’s decision in State of Washington v. Trump following the Government’s decision to withdraw it’s appeal form the TRO on “Travel Ban 1.0:”

“This order is being filed along with a concurrence from Judge Reinhardt, a concurrence from Judge Berzon, a dissent from Judge Kozinski, a dissent from Judge Bybee, and a dissent from Judge Bea. No further opinions will be filed.

Josh Gerstein explains in Politico:

“President Donald Trump’s travel ban has triggered an unusually caustic public spat among the judges of the federal appeals court that first took up the issue.

The disagreement began to play out publicly Wednesday when five 9th Circuit Court of Appeals judges publicly recorded their disagreement with a decision three of their colleagues issued last month refusing to allow Trump to reinstate the first version of his travel ban executive order.
The fight escalated dramatically on Friday with the five Republican-appointed judges filing another withering attack on the earlier opinion and two liberal judges accusing their conservative colleagues of trying to make an end-run around the traditional judicial process.

In the new opinion, Judge Alex Kozinski blasted the earlier ruling for essentially ignoring the fact that most of those affected by Trump’s initial travel ban have no constitutional rights.

“This St. Bernard is being wagged by a flea on its tail,” Kozinski wrote, joined by Judges Carlos Bea, Jay Bybee, Sandra Ikuta and Consuelo Callahan.

Kozinski’s opinion harshly criticized the earlier 9th Circuit decision for blessing the idea that courts could take account of Trump’s campaign-trail statements vowing to implement a Muslim ban.

“My colleagues err by failing to vacate this hasty opinion. The panel’s unnecessary statements on this subject will shape litigation near and far. We’ll quest aimlessly for true intentions across a sea of insults and hyperbole. It will be (as it were) a huge, total disaster,” Kozinski said, in an an apparent tip of the hat to Trump’s bombast.

That didn’t sit well with Judge Stephen Reinhardt, who accused his colleagues of trying to affect the ongoing litigation over Trump’s redrafted executive order.

“Judge Kozinski’s diatribe, filed today, confirms that a small group of judges, having failed in their effort to undo this court’s decision with respect to President Trump’s first Executive Order, now seek on their own, under the guise of a dissent from the denial of en banc rehearing of an order of voluntary dismissal, to decide the constitutionality of a second Executive Order that is not before this court,” wrote Reinhardt, an appointee of President Jimmy Carter. “That is hardly the way the judiciary functions. Peculiar indeed!”

Another liberal 9th Circuit judge, Marsha Berzon, weighed in Friday with a more restrained rejection of her colleagues’ efforts to undermine the earlier ruling.

“Judges are empowered to decide issues properly before them, not to express their personal views on legal questions no one has asked them. There is no appeal currently before us, and so no stay motion pending that appeal currently before us either,” wrote Berzon, an appointee of President Bill Clinton. “All the merits commentary in the dissents filed by a small minority of the judges of this court is entirely out of place.”
“My dissenting colleagues should not be engaging in a one-sided attack on a decision by a duly constituted panel of this court,” Berzon added. “We will have this discussion, or one like it. But not now.”

Kozinski responded by accusing his liberal colleagues of trying to silence the court’s public debate on the issue.”

“My colleagues’ effort to muzzle criticism of an egregiously wrong panel opinion betrays their insecurity about the opinion’s legal analysis,” wrote Kozinski, an appointee of President Ronald Reagan.”

Here’s the link to Gerstein’s article:

http://www.politico.com/story/2017/03/9th-circuit-judges-feud-trump-travel-ban-236211

And, here is the link to the court’s order containing all of the opinions, so you can judge for yourself:

http://cdn.ca9.uscourts.gov/datastore/general/2017/03/17/17-35105_Amd_Order.pdf

Meanwhile, the WSJ Editorial Board channeled a little of the late Justice Antonin Scalia:

“The late Supreme Court Justice Antonin Scalia once wished aloud that all federal judges be issued a stamp that said “Stupid but Constitutional.” Such a stamp would have been useful this week to the two federal judges who bounced President Trump’s revised travel ban that suspends immigration from six Muslim-majority countries that the Administration says pose particular terror risks.

Our view is that the ban is lousy policy, and any urgency that Mr. Trump’s first-week executive order once had is gone. But after the Ninth Circuit Court of Appeals blocked the original version, the White House went back to the drafting board and tailored the new order to address the court’s objections. The President has vast discretion over immigration, and the do-over is grounded both in statute and core presidential powers, which is when the Supreme Court’s Youngstown decision teaches that a President’s authority to act is strongest.”

Read the complete editorial here:

https://www.wsj.com/articles/the-trump-legal-exception-1489706694

On today’s editorial page, the Washington Post made much the same point, if only a little less emphatically with respect to the Administration’s legal position:

“THE SPEED and enthusiasm with which two federal courts halted President Trump’s latest travel executive order might suggest that the revised policy is as obviously problematic as the last, which was a sloppy rush job that the government poorly defended in court. In fact, the revised policy, while still more likely to harm than help national security, is legally far more defensible. Decades of precedent instruct judges to defer to the executive branch on immigration and national security matters such as this. It should surprise no one if the Supreme Court eventually allows the Trump administration to proceed.”

Read the complete Post editorial here:

https://www.washingtonpost.com/opinions/trumps-new-travel-order-is-self-defeating-and-maybe-legal-too/2017/03/17/95171a6c-0a93-11e7-93dc-00f9bdd74ed1_story.html?utm_term=.7cf47133cd49

Finally, CNN Legal Analyst Danny Cevallos makes many of the same points that Nolan Rappaport has made in his articles in The Hill in predicting that the Administration legally has a winner if they are ever able to get this issue to the Supremes:

“The president is in charge of immigration. Immigration policy, by its very definition, is a form of discrimination. The only truly nondiscriminatory immigration policy would be: Everyone come in, whenever you want. Anything short of that is discrimination in some form, and it’s generally within the president’s province. This is not some village rezoning policy. This is national immigration policy, and it’s different than any of the other Establishment Clause cases.
If courts can look into this particular President’s prior statements when considering the constitutionality of his actions, then every single executive action is potentially vulnerable. A gender-neutral executive order could be challenged as discriminatory against women. After all, this is the candidate who believes women can just be grabbed by the …, well, you know. A presidential action that is disability-neutral could be challenged on the basis that the candidate mocked a disabled reporter.
While the court in Hawaii cited established Supreme Court precedent in finding a probable Establishment Clause violation, the appellate courts could still find that Trump’s executive authority prevails. Yes, the district court cited some controlling authority, but an appellate court could distinguish those cases from the unique case before it — one that pits constitutional executive power head-to-head with the First Amendment.”

Read the full Cevallos analysis here:

http://www.cnn.com/2017/03/16/opinions/trump-win-travel-ban-appeal-danny-cevallos-opinion/index.html

Then, read Nolan’s previous articles from The Hill or as reposted on this blog.

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

Overall, I think it is a good thing when there is some spirited dissent and disagreement among members of a collegial court like the 9th Circuit. It shows that the Judges are engaged and that they care about the issues, as they should. Also, dissent is often directed at other courts (like the Supreme Court), at Congress, the Executive, or at educating the media and the public at large about important legal issues. Without dissent and the resulting dialogue it often provokes, you would have “a room full of people patting each other on the back.” And, what’s the purpose of a “deliberative” collegial court that doesn’t “deliberate?”

PWS

03/18/17

USG Bid To Max Criminal Deportation Law May Be On The Rocks Before The Supremes!

http://www.latimes.com/politics/la-na-supreme-court-deport-burglars-20170117-story.html

David G. Savage writes in the L.A. Times:

“The law in this area is not entirely clear. Beginning in 1988, Congress ordered deportation for noncitizens who are convicted of an “aggravated felony,” and it cited specific examples such as murder and rape. Later the law was expanded to include a general category of “crimes of violence.” This was defined to include offenses that involve a use of physical force or a “substantial risk” that force would be used.

Judges have been divided as to what crimes call for deportation. Looming over Tuesday’s argument was an opinion written two years ago by the late Justice Antonin Scalia. He spoke for an 8-to-1 majority in striking down part of a federal law known as the Armed Career Criminal Act. It called for extra years in prison for people convicted of more than one violent felony.

In that case, the extra prison term was triggered by the defendant’s possession of a shotgun. In frustration, Scalia and his colleagues said the law was unconstitutionally vague because they could not decide whether gun possession is itself evidence of a violent crime.

“You could say the exact same thing about burglary,” Justice Elena Kagan said Tuesday. A midday burglary of a home could result in violence, she said, but perhaps not if it were an empty garage or an abandoned house. “So it seems like we’re replicating the same kind of confusion,” she said.

Justice Stephen G. Breyer said judges have no way to decide which crimes typically or usually involve violence. “We’re just left guessing,” he said, suggesting a better approach would be “look at what the person did.”

But Deputy Solicitor Gen. Edwin Kneedler said a home burglary poses a risk of violence. And he said the court should defer to the government on matters of immigration. The law, he said, calls for a “broad delegation” of authority to executive officials.

This is the argument government lawyers made in defense of President Obama’s use of executive authority to try to shield millions of immigrants from deportation. It is also the argument that would call for upholding an aggressive deportation policy if pursued by the Trump administration.”

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

Interesting juxtaposition here! The key opinion relied on by the immigrant is an 8-1 decision in Johnson v. United States, 135 S.Ct. 2551 (2015), written by conservative judicial icon Justice Antonin Scalia in which he ripped apart on constitutional vagueness grounds a provision of the Armed Career Criminal Act that is virtually identical to the deportation statute.

The Obama Administration reacted by vigorously reasserting in the lower courts and the Immigration Courts its right to ignore Justice Scalia’s reasoning in the civil deportation context and continue to deport individuals convicted of residential burglary.

But, liberal judicial icon Judge Stephen Reinhardt and one of his colleagues on the Ninth Court of Appeals seized on Scalia’s opinion and applied it to the immigration law to block such deportations. The Seventh Circuit followed suit, but the Fifth Circuit did not, thereby setting up a “circuit split” — something that often convinces the Supreme Court to exercise its discretionary authority to intervene by granting a “writ of certiorari.”

The case is Lynch v. Dimaya, No. 15-1498 which, as pointed out by David Savage, will soon morph into Sessions v. Dimaya. Stay tuned for the results!

Did you know that: The Government’s lawyer in Dimaya, career Deputy Solicitor General Edwin Kneedler, a friend and an outstanding public servant, has argued more than 125 U.S. Supreme Court cases during his distinguished Government career, more than any other living lawyer!

Wow! Most lawyers would feel lucky and privileged to argue a single case before the Supreme Court. I know I sure would. Just think of the hours of preparation spent in preparing to argue well over 100 cases!

When I was Deputy General Counsel and Acting General Counsel of the Legacy INS, I used to help the Solicitor General’s Office prepare for oral arguments in immigration cases. So, I know how intensive the preparation process is.

At least once, I was asked to sit with the Deputy SG arguing the case at counsel table in the Court. That was as close as I ever got to appearing before the Court.

I remember one case that I observed — I can’t remember if I was at counsel table or in the audience — was the immigration classic INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) establishing the generous “well-founded fear = reasonable likelihood” standard for asylum, which I ended up having to apply thousands of times as a trial and appellate judge in the Immigration Courts. That day, however, we were on the “losing” side of the argument, having presented the case for a more stringent standard. Nevertheless, I think the Court got it completely right.

The “winning” lawyer before the Court that day was a young immigration attorney from San Francisco, Dana Marks Keener, now known as Judge Dana Leigh Marks of the San Francisco Immigration Court and the President of the National Association of Immigration Judges. Since then, of course, Dana and I have become judicial colleagues and great friends. I often refer to her as “the founding mother of modern U.S. asylum law.”

Small world.

PWS

01/18/17

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