Category: 9th Circuit

HON. JEFFREY S. CHASE: The Latest On The “Pereira Controversy”

https://www.jeffreyschase.com/blog/2019/6/3/latest-pereira-developments

Latest Pereira Developments

I have previously discussed the implications of the Supreme Court’s 2018 decision in Pereira v. Sessions here and here.  There are two aspects to the Pereira decision.  The first is the narrow issue presented to the Supreme Court, concerning whether the service of a purported charging document (known as a Notice to Appear, or “NTA”) that is defective in its lack of a time and date as required by statute triggers what is known as the “stop-time rule.” That rule prevents a non-citizen from accruing additional continuous residence towards the 10 years needed to be able to apply for a relief known as Cancellation of Removal.  If the time was not stopped by the defective NTA, non-citizens continue to accrue time towards the ten-year requirement, eventually allowing many to apply for that additional form of relief that would have otherwise been closed to them. The second aspect of Pereira (and the one discussed in my prior posts, which has captured the imagination of many immigration practitioners) concerns whether the particular language employed by the Supreme Court in holding that no, the defective document does not trigger the stop-time rule because by virtue of its defect, the document isn’t in fact an NTA, can be interpreted to more broadly undermine the legitimacy of every case, past and present, that was initiated by DHS with such a defective document.

In spite of high hopes regarding the second issue (which were raised by the termination of 9,000 removal cases by immigration judges in just the first two months following the Pereira decision), the tide turned with the issuance of decisions to the contrary, first by the BIA in Matter of Bermudez-Cota, and then by decisions from the U.S. Courts of Appeals for the Sixth, Ninth, and Second Circuits affirming the BIA’s ruling.

Although a recent decision of the Seventh Circuit also refused to terminate the petitioner’s proceedings, it did so in a unique way that is worth discussing.  In Ortiz-Santiago v. Barr,  the court disagreed with the view of its sister circuits that Pereira’s holding was limited to the narrow issue of the stop-time rule, and that the NTA’s requirements are satisfied by the two-step process of the service of a defective NTA followed by the immigration court’s mailing of a notice providing the missing information.  The Seventh Circuit found that “Pereira is not a one-way, one-day train ticket,” in that its holding has broader implications than merely the stop-time rule.  The court rejected as “absurd” the Government’s argument that the NTA referenced in the statute is a different document from the one referenced in the regulations.  (It bears noting that the 6th Circuit adopted this argument in footnote 4 of its decision in Santos-Santos v. Barr).  The 7th Cir. was also unpersuaded by the two-step compliance approach of the BIA in Bermudez-Cota (which the other three circuits deferred to).  The 7th Circuit stated that Bermudez-Cota “brushed too quickly over the Supreme Court’s rationale in Pereira and tracked the dissenting opinion rather than the majority.”  The court added that “Congress itself appears to have rejected the two-step approach” when it passed the legislation that created the NTA.

The Seventh Circuit then turned to the issue of what should result from a finding that an NTA did not comply with the statute.  Here the decision takes an interesting turn. The court stated that the fact that the regulation states that “jurisdiction vests” upon the service of an NTA isn’t read as “jurisdiction” “in the same sense that complete diversity or the existence of a federal question is for a district court.”  Instead, the court interpreted the question of “jurisdiction” in an agency regulation as what it termed a “claim-processing rule,” which the court defined as a rule “that seeks to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.”  The court noted that the failure to comply with a claim-processing rule may result in termination of the case, but only if a timely objection is raised. In the absence of such timely objection, the failure to comply “may…be waived or forfeited by the opposing party.” The court turned to the question of whether the lack of such timely objection in the case before it constituted such forfeiture, or (1) whether the fact that doing so at the time would have been futile under existing circuit case law, and (2) the major legal change that the Pereira decision constituted, allowed for the late raising of such objection.  The court answered this last question in the negative, concluding that the petitioner could have gleaned even pre-Pereira that a potential problem existed, as portended from the stand-alone position of the Third Circuit’s 2016 decision in Orozco-Velasquez v. Holder, which created the circuit court split that led the matter to eventually be taken up by the Supreme Court in Pereira.

Although the Ortiz-Santiago decision ultimately denied the motion for termination, it created a new road map for analyzing such claims.  Most notably, it rejected the BIA’s analysis of the issue in Bermudez-Cota.  It is wondered whether another circuit might be persuaded to adopt the reasoning of this decision (which I liken to a ball that looks like it might be a home run before hooking foul at the last moment) but differ on whether the issuance of the Pereira decision would form a legitimate basis for allowing the raising a late objection.

Not content with its ruling on the jurisdictional issue, the BIA returned to the narrower issue in Pereira in a May 1 precedent, Matter of Mendoza-Hernandez and Capula-Cortez, in which the Board held that the two-step rule rejected in Pereira is not only sufficient for broader jurisdictional purposes, but remarkably, is also sufficient to trigger the stop-time rule.  The degree of chutzpah involved in reaching a decision directly at odds with the Supreme Court’s holding was so great that a sharply-divided Board made the case its first en banc decision in 10 years, revealing a 9 to 6 split among its permanent judges.

In the current issue of the American Bar Association’s Judges’ Journal, Richard J. Pierce, Jr., a law professor at George Washington University discusses the right of the president to remove officers within the federal government at will. (The article has been reprinted here on the website of my friend and colleague Paul Schmidt).   Using the example of immigration judges, Prof. Pierce argues of the need to protect those performing an adjudicatory function from at-will removal “in order to reduce the risk that they will adjudicatory hearings in ways that reflect pro-government bias in violation of due process.”  Prof. Pierce cites the present danger under a president and attorney general who have expressed strong anti-immigrant views “and have applied extraordinary pressure on IJs to deny applications for asylum.” Prof. Pierce opines that it is unrealistic to expect all immigration judges to be able to withstand such pressure.  I believe that Mendoza-Hernandez is a perfect example of this.  If only two of the nine Board Members in the majority ruled as they did out of fear of repercussions from the Attorney General, such pressure effectively changed the outcome of the decision.  I feel strongly that this in fact happened.

The Ninth Circuit took only three weeks to reverse the Board’s decision.  The circuit court ruled to the contrary that a subsequent hearing notice does not trigger the stop-time rule.  The court also held that it owes no deference to the BIA’s interpretation of Supreme Court decisions; that the BIA ignored the plain text of the statute it claimed to be interpreting; and that the BIA relied on case law that could not be reconciled with the Supreme Court’s decision in Pereira.  As the BIA will undoubtedly continue to apply its erroneous decision outside of the Ninth Circuit, it is hoped that the other circuits will quickly follow the Ninth Circuit’s lead.    Sadly, the majority of the BIA’s judges have signaled that they will not act as neutral arbiters and afford due process. It is left to the circuit courts to provide the necessary correction.

 

 

 

 

 

For my recent commentary on the BIA’s Pereira interpretations and the Ninth Circuit’s rough treatment of Hernandez-Mendoza see:COURTS: As BIA Continues To Squeeze The Life Out Of Pereira, 9th Circuit Finally Pushes Back — Why The “Lost Art” Of BIA En Banc Review & Dissent Is So Essential To Due Process & Fundamental Fairness!May 28, 2019

Related posts:

  1. COURTS: As BIA Continues To Squeeze The Life Out Of Pereira, 9th Circuit Finally Pushes Back — Why The “Lost Art” Of BIA En Banc Review & Dissent Is So Essential To Due Process & Fundamental Fairness!
  2. AMERICA’S SHAME: Congress Dithers, Life-Tenured Article III Circuit Judges & Supreme Court Justices Shirk Their Duty, While Trump’s “False Courts” Violate Constitutional, Statutory, Treaty, & Human Rights On A Daily Basis With Impunity! — History Will Remember Those Who Are Complicit In & Who Are Morally Responsible For Unlawful Killings & Other Unspeakable Acts Committed Against Those Most Vulnerable Who Are Merely Seeking Fairness Under Our Broken & Fraudulent Justice System!
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  4. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

COURTS: As BIA Continues To Squeeze The Life Out Of Pereira, 9th Circuit Finally Pushes Back — Why The “Lost Art” Of BIA En Banc Review & Dissent Is So Essential To Due Process & Fundamental Fairness!

Here are the head notes from two new BIA decisions distinguishing Pereira:

https://www.justice.gov/eoir/page/file/1164976/download

Matter of Lourdes Suyapa PENA-MEJIA, Respondent

27 I&N Dec. 546 (BIA 2019)

Decided May 22, 2019
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

Neither rescission of an in absentia order of removal nor termination of the proceedings is required where an alien did not appear at a scheduled hearing after being served with a notice to appear that did not specify the time and place of the initial removal hearing, so long as a subsequent notice of hearing specifying that information was properly sent to the alien. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.
FOR RESPONDENT: Daniel A. Meyer, Esquire, Jackson Heights, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jonathan Graham, Assistant Chief Counsel
BEFORE: Board Panel: GUENDELSBERGER, GRANT, and KENDALL CLARK, Board Members
GRANT, Board Member, with the opinion

https://www.justice.gov/eoir/page/file/1164981/download

Matter of Renata MIRANDA-CORDIERO, Respondent

27 I&B Dec. 551 (BIA 2019)
Decided May 22, 2019
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

Pursuant to section 240(b)(5)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(B) (2012), neither rescission of an in absentia order of removal nor termination of the proceedings is required where an alien who was served with a notice to appear that did not specify the time and place of the initial removal hearing failed to provide an address where a notice of hearing could be sent. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.
FOR RESPONDENT: Renee LaRosee, Esquire, Elizabeth, New Jersey
BEFORE: Board Panel: GUENDELSBERGER, GRANT, and KENDALL CLARK, Board Members
GRANT, Board Member, with the opinion

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

But here’s some better news from a split 9th Circuit:

Isaias Lorenzo Lopez v. William P. Barr, 9th Cir., 05-22-19, published

15-72406

Before: Dorothy W. Nelson and Consuelo M. Callahan,
Circuit Judges, and Edward R. Korman,* District Judge. Opinion by Judge Korman;
Dissent by Judge Callahan
* The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.

SUMMARY BY COURT STAFF:

SUMMARY** Immigration
Granting Isaias Lorenzo Lopez’s petition for review of a decision of the Board of Immigration Appeals, the panel held that a Notice to Appear that is defective under Pereira v. Sessions, 138 S. Ct. 2105 (2018), cannot be cured by a subsequent Notice of Hearing and therefore does not terminate the residence period required for cancellation of removal.
Lorenzo sought cancellation of removal, a form of relief from removal that requires that an applicant must, among other requirements, reside in the United States continuously for seven years after having been admitted in any status. However, under the “stop-time” rule, as relevant here, the service of a Notice to Appear under 8 U.S.C. § 1229(a) terminates an alien’s residence. In Lorenzo’s case, an immigration judge and the BIA found him ineligible for cancellation because his March 2008 Notice to Appear terminated his residence period before he had accrued the requisite seven years.
In Pereira v. Sessions, 138 S. Ct. 2105 (2018), the Supreme Court held that a Notice to Appear, as defined in 8 U.S.C. § 1229(a), must contain the time and place at which removal proceedings will be held to trigger the stop-time rule. The panel concluded that Lorenzo’s Notice to Appear
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

LORENZO LOPEZ V. BARR 3
did not terminate his residence because it lacked time-and- place information.
However, because Lorenzo also received a subsequent Notice of Hearing that advised him of the time and place of his proceedings, the Attorney General argued that the Notice of Hearing cured the defective Notice to Appear and triggered the stop-time rule. The Attorney General relied on Popa v. Holder, 571 F.3d 890 (9th Cir. 2009), which held that a Notice to Appear that fails to include the date and time of an alien’s deportation hearing, but that states that a date and time will be set later, is not defective so long as a notice of the hearing is later sent to the alien.
The panel held that a Notice to Appear that is defective under Pereira cannot be cured by a subsequent Notice of Hearing, explaining that the plain language of the statute foreclosed the Attorney General’s argument and that Pereira had effectively overruled Popa.
The panel noted that the BIA reached a conclusion contrary to the panel’s holding in Matter of Mendoza- Hernandez, 27 I. & N. Dec. 520 (BIA 2019) (en banc), where, over a vigorous dissent, a closely divided BIA held that a Notice of Hearing that contains time-and-place information perfects a deficient Notice to Appear and triggers the stop-time rule. However, the panel declined to defer to that conclusion because: (1) the BIA acknowledged that Pereira could be read to reach a different result, and the courts owe no deference to agency interpretations of Supreme Court opinions; (2) the BIA ignored the plain text of the statute; and (3) the BIA relied on cases that cannot be reconciled with Pereira.
Thus, the panel concluded that, because Lorenzo never received a valid Notice to Appear, his residency continued

4 LORENZO LOPEZ V. BARR
beyond 2008 and, accordingly, he has resided in the United States for over seven years and is eligible for cancellation of removal.
Dissenting, Judge Callahan wrote that she does not read Pereira as holding that the notice of the time and place must be provided in a single document. Rather, Judge Callahan reads Pereira as allowing the Department of Homeland Security to cure a deficient notice to appear by subsequently providing a noncitizen with actual notice of the time and place of the removal proceedings, with the result that the stop-time rule is triggered upon the noncitizen’s receipt of the supplemental notice.

**********************************
Significantly, the Ninth Circuit majority recognized the “vigorous” dissent of Judge John Guendelsberger in Matter of Mendoza-Hernandez, 27 I&N Dec. 520 (BIA 2019), which was joined by Vice Chair Adkins-Blanch and Appellate Immigration Judges Cole, Grant, Creppy, & Kendall Clark. The Ninth Circuit essentially adopted the dissenters’ opinion, quoting at length:

The reasoning of the Supreme Court in Pereira . . . leaves little room for doubt that the Court’s decision requires us to follow the plain language of the Act that the DHS must serve a [8 U.S.C. § 1229(a)(1)] “notice to appear” that includes the date, time, and place of hearing in order to trigger the “stop-time” rule. The Court in Pereira repeatedly emphasized the “plain text” of the “stop- time” rule and left no room for agency gap- filling as to whether an Immigration Court can “complete” or “cure” a putative “notice to appear” by subsequent issuance of a “notice of hearing” that would trigger the “stop-time” rule on the date of that event. Quite simply, . . . a “notice of hearing” is not a “notice to appear” and, therefore, it does not satisfy the requirement that the DHS serve a [Section 1229(a)(1)] “notice to appear” that specifies the date and time of hearing, in order to trigger the “stop-time” rule.

16 LORENZO LOPEZ V. BARR
27 I. & N. Dec. at 540–41 (dissenting opinion) (footnote omitted).

 

Prior to the “Ashcroft Purge, “ completed in 2003, en banc opinions in precedents and “vigorous dissents” were much more frequent at the BIA. I know, because I frequently was among the dissenters, particularly in the latter days of my BIA career.

Well done dissenters! Bravo!

Given the more or less “built in pro-Government bias” of an administrative “court” captive within the DOJ, the dissents often contained important alternative viewpoints that sometimes were more in accordance with the law as later interpreted by the “real” Article III Courts upon judicial review. The en banc process also forced every BIA Appellate Immigration Judge to take a public position on important issues.

In that way, it promoted both transparency and accountability, as well as “putting into play” alternative interpretations and results that the majority otherwise would  “blow by.” Accordingly, it also promoted more rigorous analysis by the majority.

Ashcroft basically removed the “gang of dissenters” from the BIA while “dumbing it down” by mandating mostly “single member panels,” discouraging en bancs, and supressing dissents. Since that time, the quality of the BIA decisions has suffered, and the positions of most individual BIA judges on most precedent issues has become a “mystery.” Not surprisingly, the BIA jurisprudence post-Ashcroft has become very one-sided in favor of the DHS.

The “vigorous en banc dissent” in Matter of Mendoza-Hernandez was striking to observers as the first one in recent memory. And, clearly it made a difference. The lack of meaningful dissent at the BIA is one of many things that have degraded due process, judicial independence, and decisional quality  at EOIR since the “Ashcroft Purge.” Worse yet, Barr’s ludicrous “proposed regulations” would further “dumb down” the BIA process.

The importance of dissents and transparency in a legitimate judicial system can’t be overstated. That’s why we need an independent, Article I U.S. Immigration Court that does not answer to the Attorney General.

PWS

05-28-19

 

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  4. 🛡⚔️BATTLING THE KAKISTOCRACY: KNIGHTESSES & KNIGHTS OF THE ROUND TABLE, NDPA PRO BONO REGIMENT FROM SULLIVAN & CROMWELL CONTEST DEFEATED REGIME’S CONTINUING TYRANNY AT COURT! — Latest 9th Circuit Amicus Brief Highlights Due Process Requirements For Developing Record In Immigration Courts! — PLUS “SATURDAY BONUS” — Time For The NDPA To Stand Up & Demand A Primary Leadership Role In Reforming EOIR & The Totally Corrupt Immigration Bureaucracy! — “Just Say No” To “Same Old, Same Old” By The Characters Who Sowed The Seeds Of Past Failures & Opened The Door For Miller & Co! ☠️🏴‍☠️🤮⚰️👎🏻

FRACTURED 9TH GIVES GO-AHEAD TO “REMAIN IN MEXICO” PROGRAM! — Innovation Law Lab v. McAleenan

Innovation Law Lab v. McAleenan, 9th Cir., 05-07-19, published

Innovation Law Lab 19-15716

DHS’s request for a stay GRANTED

PANEL: O’SCANNLAIN, W. FLETCHER, and WATFORD, Circuit Judges.

OPINION: Per Curiam with Concurring Opinions by Judges Watford & Fletcher

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

Lots of impenetrable legal gobbledegook. Pretty hard to see how Judges Fletcher and Watford concurred in a decision (which appears to have been “ghosted” by Judge O’Scannlain) they really didn’t agree with. But, hey, it’s only human lives at stake here.

Bottom line:  Trump wins, asylum seekers with a credible fear of persecution lose. Big Time!

But, in the end, it’s likely to be America and human values that lose here.

PWS

05-07-19

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TRUMP SCOFFLAWS STUFFED AGAIN BY COURT ON “SANCTUARY” ISSUES: Trump Keeps Trying To “Punish” Jurisdictions For Acting Legally!

https://apple.news/A47vetrPUSg2Xm8cqHJuFlQ

Sophie Weiner reports for Splinter:

Yet again the Trump administration has had one of their cruel immigration policies smacked down byfederal judges. This time, it was the administration’s attempt to prevent California from carrying out sanctuary laws which protect undocumented immigrants in the state, according to Bloomberg.

A three judge panel at the 9th U.S. Circuit Court of Appeals rejected the administration’s attempt to shut down California sanctuary policies. The panel affirmed a previous decision by a federal judge in Sacramento, who ruled that a 2017 immigrant sanctuary regulation, which restricts local police’s cooperation with federal immigration authorities, doesn’t conflict with constitutional law.

From Bloomberg:

The appeals court concluded that while Congress may have expected cooperation between state and federal authorities on immigration enforcement, Washington doesn’t have the constitutional power to require California’s assistance.

The decision regarded the California law SB 54, also known as the California Values Act, which was signed by former Governor Jerry Brown in 2017.

“SB 54 may well frustrate the federal government’s immigration enforcement efforts,” the court panel wrote. “However, whatever the wisdom of the underlying policy adopted by California, that frustration is permissible, because California has the right, pursuant to the anticommandeering rule, to refrain from assisting with federal efforts.”

The panel also upheld a state law that requires employers to inform workers before workplace inspections by federal immigration authorities, and told a lower court judge to take another look at a law that “authorizes the state attorney general to inspect facilities that house immigrants not detained for criminal offenses,” according to Bloomberg.

Many of the Trump administration’s attempts to harden immigration policy have met resistance in the courts. Most recently, the “Remain in Mexico” policy, which requires asylum seekers to wait in Mexico while their claims are processed, was blocked by a federal judge. Since then, the decision has been temporarily reversed.

It’s somewhat ironic that this decision would come down now, the week after it was made public that the Trump administration considered dumping undocumented people in these so-called “sanctuary cities.” After the absurd and cruel suggested policy was publicized, Trump threatened to do something similar, suggesting that immigrants who were caught crossing the border but couldn’t be detained should be sent to liberal cities with sanctuary laws like San Francisco.

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

In addition to being really stupid (you’re not going to get much useful cooperation from states and cities by suing them) this litigation borders on Constitutionally frivolous. It’s wasting the time of the Federal Courts.

Undoubtedly, a competent Administration with  rational immigration enforcement priorities could have reached accommodations with most jurisdictions on genuine law enforcement issues (not the mindless “deport anyone who is here without documents” program).

There was a time when professionals with some backbone at the DOJ and in the Solicitor General’s Office would have “just said no” to this type of “garbage litigation” being pushed by White House politicos. But, not today’s DOJ and today’s Solicitor General who see themselves as Trump’s sycophantic lawyers rather than upholding their oaths of office and serving the American people (who, after all, pay their salaries, not Trump — who apparently doesn’t even pay taxes). (Sessions’s downfall was that he saw himself more as an instrument of hate, racism, and xenophobia than as a personal protector of the Trumps.)

The Trump Kakistocracy has destroyed the remaining integrity of the DOJ and forced many of its best lawyers to leave, “go underground,” or become “hall walkers” to survive. That’s going to be bad for America long after Trump finally leaves office.

PWS

04-19-19

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BARR EXPANDS “NEW AMERICAN GULAG” — Indefinite Detention Without Bond Hearings For Those Who Establish Credible Fear Of Persecution — DHS Detention Capacity Already Outstripped, Requiring 90 Day Delay In Implementing!

Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019)

matter_m-s-_27_in_dec._509_a.g._2019_002

BIA HEADNOTE:

(1) Matter of X-K-, 23 I&N Dec. 731 (BIA 2005), was wrongly decided and is overruled.
(2) An alien who is transferred from expedited removal proceedings to full removal proceedings after establishing a credible fear of persecution or torture is ineligible for release on bond. Such an alien must be detained until his removal proceedings conclude, unless he is granted parole.

KEY QUOTE:

Because Matter of X-K- declared a sizable population of aliens to be eligible for bond, DHS indicates that my overruling that decision will have “an immediate and significant impact on [its] detention operations.” DHS Br. 23 n.16. DHS accordingly requests that I delay the effective date of this decision “so that DHS may conduct necessary operational planning.” Id. Federal circuit courts have discretion to delay the effective dates of their decisions, see Fed. R. App. P. 41(b), and I conclude that I have similar discretion. I will delay the effective date of this decision for 90 days so that DHS may conduct the necessary operational planning for additional detention and parole decisions.

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

Short Takes:

  • An increase in mandatory detention is sure to mean more “Aimless Docket Reshuffling” (“ADR”); as more detained cases are moved to the front of the docket, they will displace lower priority (but “ready to try”) non-detained cases which will be “shuffled off to Buffalo” thus increasing the already overwhelming backlog; as more Immigration Judges are sent to detention facilities near the border, they will “leave behind” already full dockets creating even more chaos in an already dysfunctional system;
  • Expanding mandatory detention raises the stakes even higher in the pending litigation on whether mandatory prehearing detention without recourse to individualized bond determinations by Immigration Judges violates the Due Process Clause of the Fifth Amendment — See Rodriguez v. Marin, https://immigrationcourtside.com/2018/11/27/our-gang-in-action-9th-cir-remands-jennings-v-rodriguez-keeps-injunction-in-effect-hints-that-administration-scofflaws-could-be-in-for-another-big-loss-will-we-see-th/
  • Obviously, planning for the result they asked for (and these days were almost certain to get from the AG) wasn’t part of the DHS program.

PWS

04-16-19

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  2. CONSTITUTIONAL SCOFFLAW BARR “OUTED” AGAIN: U.S. District Judge Marsha Pechman (WD WA) Rips AG’s Unconstitutional Denial Of Bonds To Asylum Seekers – Finds Matter of M-S- Unlawful!
  3. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

9TH CIR. TEMPORARILY STAYS ORDER BARRING “REMAIN IN MEXICO”

https://www.nytimes.com/2019/04/12/us/trump-asylum-seekers-mexico.html?smid=nytcore-ios-share

Mihir Zaveri reports for the NY Times:

A federal appeals court said Friday that the Trump administration could temporarily continue to force migrants seeking asylum in the United States to wait in Mexico while their cases are decided.

A three-judge panel of the United States Court of Appeals for the Ninth Circuit issued a stay of a lower-court ruling four days earlier that blocked the administration’s protocol. The appeals court will consider next week whether to extend that stay — and allow the Trump administration policy to remain in effect for longer.

The administration in December announced its new policy, called the migration protection protocols, arguing that it would help stop people from using the asylum process to enter the country and remain there illegally. President Trump has long been angered by so-called catch and release policies, under which asylum seekers are temporarily allowed in the United States while they wait for their court hearings.

On Monday, Judge Richard Seeborg of the United States District Court for the Northern District of California issued an injunction against Mr. Trump’s new protocols, saying that the president did not have the power to enforce them and that they violated immigration laws.

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

No dull moments. Stay tuned.

PWS

04-13-19

 

Related posts:

  1. AMERICA’S “MASS ATROCITY” — Professor Kate Cronin-Furman Says Don’t Kid Yourself About What The Trump Administration Is Doing In Your Name & How “Ordinary Civil Servants” Carry Out The Unthinkable & Unacceptable!
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. TRUMP’S MALICIOUS INCOMPETENCE IS THE REAL “SOUTHERN BORDER CRISIS” — AND, A GENUINE HUMAN TRAGEDY — The Legal Tools To Address The Crisis In The Northern Triangle Causing A Refugee Flow Exist; This Administration Stubbornly Refuses To Use Them!
  4. 9TH CIRCUIT JUDGES COMPLICIT IN HUMAN RIGHTS & LEGAL VIOLATIONS INFLICTED ON TERRIFIED TEEN ASYLUM APPLICANTS: Reuters Study Exposes How Disingenuous Article III Judges Are Letting Trump Administration “Get Away With Potential Murder” Under Clearly Illegal, Unconstitutional, & Incompetently Administered “Remain In Mexico” Abomination!

PODCAST “REVEALS” DUE PROCESS DISASTER IN IMMIGRATION COURTS, PARTICULARLY FOR TRANSGENDER INDIVIDUALS — Deep Seated Problems Existed — This Administration Made Them Worse!

https://www.revealnews.org/episodes/trans-national-migration/

Trans National Migration

Co-produced with PRX Logo

We examine the record of one of the toughest immigration judges in the country, including the surprising way her decisions benefited transgender asylum-seekers. Then we follow one transgender woman who flees El Salvador for the United States to try to claim asylum.

Our final story takes us to Turkey, and focuses on a small but growing group of refugees seeking a new life: young Afghan women fleeing abuse, forced marriage and persecution in their homeland. Reporter Fariba Nawa tells the story of Hoor, who made the dangerous journey into Turkey alone, only to be assaulted by an Afghan man in Istanbul. Against all odds, Hoor sought justice for her abuser and ultimately prevailed.

Credits

Our first story about an immigration judge who ruled on hundreds of cases involving transgender asylum seekers was reported and produced by Patrick Michels and edited by Brett Myers.

Our second story about a transgender woman who fled El Salvador was reported by Alice Driver. It was produced by Casey Minor with help from Emily Harris and Amy Isackson and was edited by Brett Myers.

Our story about Afghan female migrants was reported and produced by Fariba Nawa and edited by Taki Telonidis.

Our production manager is Najib Aminy. Original score and sound design by Jim Briggs and Fernando Arruda, who had help from Kaitlin Benz and Katherine Rae Mondo.

Support for Reveal is provided by the Reva and David Logan Foundation, the Ford Foundation, the John D. and Catherine T. MacArthur Foundation, the John S. And James L. Knight Foundation, the Heising-Simons Foundation and the Ethics and Excellence in Journalism Foundation.

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

Please click the link at the top to listen.

My takeaways:

  • The lack of sensitivity training and proper application of the legal standards for asylum that was allowed to go on for many years in this Immigration Courtroom is appalling;
  • The BIA, whose job is supposed be insuring that individuals’ Due Process rights are respected and asylum law is applied in a fair and impartial manner, failed to do its job;
  • The qualification of individuals for asylum based on gender classifications has been well established since Matter of Tobago-Alfonso, 20 I&N Dec. 819 (BIA 1990) was published (at the direction of then-Attorney General Janet Reno) in 1994;
  • LGBTQ cases were well-documented, credible, and routinely granted by the U.S Immigration Judges at the Arlington Immigration Court during my tenure there;
  • I don’t remember ever denying a transgender case — most were either stipulated or agreed upon by the DHS Office of Chief Counsel — yet EOIR failed to institutionalize those “best practices” that would have promoted justice, consistency, and efficiency;
  • Immigration Judges are bound to follow not only BIA precedents, but also the precedents by the U.S. Circuit Courts in the jurisdiction where they sit — that obviously was not happening here — a clear violation of both law and ethics;
  • You can see the difference when an Immigration Judge does listen, properly applies the law in the generous manner dictated by the Supreme Court in INS v. Cardoza-Fonseca and the BIA in Matter of Mogharrabi, and gives the respondent “the benefit of the doubt” as set forth in the U.N. Handbook on the Refugee Convention;
  • The difference in people’s lives and the benefits to the U.S. when judges properly apply asylum law to protect individuals, as intended, is obvious;
  • Those without lawyers and those held in long-term detention are being treated unfairly and not in accordance with Due Process;
  • This system needs reform so that it operates independently, impartially, and under the legal standards established by law and by Article III Circuit Courts;
  • Immigration Judges who are biased against asylum seekers must be uniformly reversed and “outed” by a real Appellate Tribunal, not the current “go along to get along” version of the BIA;
  • Judges who unwilling to threat asylum applicants and other foreign nationals fairly should not be reappointed to the bench in a competitive, merit-based process;
  • Trump’s recent “we don’t need no stinkin’ judges for asylum cases” rhetoric is as absurd as it is ignorant, unconstitutional, and damaging to both our precious  justice system and vulnerable human beings who need and are legally entitled to our protection.

Many thanks to Lawrence University Scarff Professor of Government Jason Brozek for bringing this highly relevant podcast to my attention.

I am at Lawrence University (my alma mater) in Appleton, WI for two weeks as the Scarff Family Distinguished Visiting Professor. Jason and I currently are teaching a “mini-seminar” in Kasinga/FGM/Gender-Based Asylum in the Government Department at Lawrence. This podcast is directly relevant and “breathes life” into the issues we have been discussing with the wonderfully talented and engaged students in our class.

PWS

04-07-19

 

 

 

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”
  3. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

DR. EDITH BRACHO-SANCHEZ @ CNN: Traumatizing Youth — Trump Administration Routinely Violates Wilberforce Act Protections For Vulnerable Kids — Their Outrageous Solution — Eliminate The Law!

https://www.cnn.com/2019/03/28/health/unaccompanied-minors-18th-birthday/index.html

Dr. Bracho-Sanchez writes for CNN:

(CNN)On your 18th birthday, immigration officials will come for you, a lawyer explained. You will be shackled, you will be placed in an orange jumpsuit, and you will be taken to jail. “But I need you to know you are not a criminal.”

This is how Allison Norris, toll litigation staff attorney at Americans for Immigrant Justice, prepares her teenage clients in federal migrant detention shelters who are nearing age 18 without the prospects of a suitable sponsor to whom they can be released.
One of these clients is Veronica, whose name has been changed to protect her identity for fear of retribution. At age 17, she arrived in the United States alone, fleeing sexual predators in El Salvador.
Between the time Veronica arrived and when she turned 18, just over four months, Norris says, she attempted to find a sponsor. But none of the family friends who applied met the extensive list of requirements of the Office of Refugee Resettlement in order for her to be released from the shelter for migrant children in South Florida where she was detained.

ICE arrested 170 potential sponsors of unaccompanied migrant children

ICE arrested 170 potential sponsors of unaccompanied migrant children
On her 18th birthday, she woke up scared, wondering what would happen to her, Veronica said. Norris’ detailed warnings had not exactly calmed her down.
At 8 a.m. on her birthday, immigration officials arrived at the shelter. She was placed in ankle shackles and put in a “very cold room” for hours before being taken into adult detention, Veronica said.
In the months that followed, Veronica describes feeling depressed, crying every day and losing hope. Because she wasn’t serving a specific sentence, she had no idea how long she’d spend in detention.
With hours to fill in a cell she shared with three older women, she relived in her mind the attacks she suffered in El Salvador.
“I didn’t know what was worse: to have died in El Salvador or to be locked up,” she said.
Veronica is part of a group of kids known as ORR age-outs. When unaccompanied minors arrive in the United States, they are placed in the custody of the Office of Refugee Resettlement, part of the US Department of Health and Human Services, a humanitarian agency in nature.
Unaccompanied minors risk life for American dream
Once they turn 18, teens are moved into the custody of the Department of Homeland Security — more specifically, US Immigration and Customs Enforcement, a law enforcement agency known as ICE. Migrant youth cannot, by law, stay in the shelters that housed them before they turned 18.
“I have interviewed the children right before they turn 18 and they go into these facilities,” said Yenis Castillo, a forensic psychologist with the nonprofit advocacy group Physicians for Human Rights. “All the kids I interview are terrified.”
In the weeks leading up to their 18th birthdays, Castillo said, she has seen teens act out, develop chronic headaches or high blood pressure, become depressed and even become suicidal.
“When people undergo trauma, they live in a constant state of alert, and on top of that, then we are sending them to prison,” she said.
Neha Desai, director for immigration at the National Center for Youth Law, has toured immigrant child detention centers across the country. “Everywhere I go, the kids that are in most extreme and visible distress are the ones that are approaching age-out. There’s so much anxiety in that period of time,” she said.
The Trafficking Victims Protection Reauthorization Act, passed in 2000 and reauthorized in 2008 and 2013, states that when unaccompanied immigrant children in the custody of the Office of Refugee Resettlement turn 18, ICE “shall consider placement in the least restrictive setting available after taking into account the [individual’s] danger to self, danger to the community, and risk of flight.”
“What we’ve seen is that they very rarely do,” said Xiaorong Jajah Wu, immigration attorney and deputy program director at the Young Center for Immigrant Children’s Rights. Wu oversees offices in Houston and Chicago, where she says it is the child’s attorney or child advocates who put forth alternatives to adult detention, “basically begging ICE not to take these kids on their 18th birthday.”
Wu said her team has not seen what they’d consider “any level of thought” being put into the decision of whether to take a migrant youth into adult detention.
In California, Lindsay Toczylowski, an immigration attorney and founder and executive director of the immigrant Defenders Law Center, says the move into adult detention has become the norm rather than the exception for teens over the past two years.
“What we’ve seen is a lack of discussion for ICE when deciding whether or not they are going to take a kid into custody,” she said. Toczylowski also worries about the way in which this is done, which she describes as “overkill,” considering that these are typically petite teens from rural communities in Central America who have committed no crimes.

Record numbers of migrant children are in US custody, hoping they won't be forgotten

Record numbers of migrant children are in US custody, hoping they won’t be forgotten
Kate Melloy Goettel, senior litigation attorney at the National Immigrant Justice Center, noted that “Congress really understood that these kids are vulnerable. And now we are just trying to get ICE to understand that they have obligations under the law to really try to find options other than detention.”
These options, Goettel explains, includes placement with family members, non-family sponsors, shelters, group homes and institutional placement.
Jennifer Elzea, press secretary for ICE, wrote in an email that “custody determination is made by ICE on a case-by-case basis, taking into account the totality of the individual’s circumstance, to include flight risk, threat to the public and threat to themselves.” Elzea acknowledged understanding the requirement that the agency consider the least restrictive setting available and to consider alternatives to detention.
Goettel is part of the team of attorneys at the National Immigrant Justice Center who, in March 2018, sued Homeland Security and ICE on behalf of two migrant teens who were placed in adult prisons when they turned 18. The lawsuit alleges that ICE “failed to consider them for placement in ‘the least restrictive setting available’ and to provide them with meaningful alternatives to detention, as required by amendments to the Trafficking Victims Protection Reauthorization Act.”
According to documents obtained from the Office of Refugee Resettlement as part of the class-action lawsuit, 528 children aged out of custody in 2015. The number doubled to 1,044 in 2016, remained about the same at 1,091 in 2017 and, in the first half of 2018 alone, included 1,240 kids.

Record 14,000 unaccompanied immigrant children in US custody, HHS confirms

Record 14,000 unaccompanied immigrant children in US custody, HHS confirms
In November, Health and Human Services confirmed that there were a record 14,000 unaccompanied children in Office of Refugee Resettlement custody.
Since the lawsuit was filed, a judge required ICE to reassess the custody of the two original teens and place them in the “least restrictive setting possible.” In August, the court granted a motion for class action certification, meaning the lawsuit against Homeland Security is now on behalf of all unaccompanied migrant children in custody of the Office of Refugee Resettlement who “age out” when they turn 18.
When asked about the lawsuit, Elzea said, “ICE does not comment on pending litigation”
As for Veronica, she spent just over two months in adult detention. Norris, her attorney, says that a family friend with lawful status was able to get all required documents quickly, and Homeland Security released Veronica to live with her.
Get CNN Health’s weekly newsletter

Sign up here to get The Results Are In with Dr. Sanjay Gupta every Tuesday from the CNN Health team.

But, Norris says, the process can take much longer for other teens, many of whom lose hope while in detention and ask to be sent back to their home countries.
“They fought all this way to come here, raised all this money to go on this very dangerous journey to escape horrific violence, and all of a sudden they’ve been in detention for three months, and they’re like ‘just send me back. I can’t take it anymore,’ ” she said.
    • ****************************************

    The obvious solution:  protect the kids; resist the Trump  Kakistocracy. That’s what the New Due Process Army does!

    PWS

    03-31-19

Related posts:

  1. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  2. TWO LA TIMES EDITORIALS “SPOT ON” IN CALLING OUT TRUMP’S FAILED BORDER POLICIES, BOGUS EMERGENCY, & ABUSE OF IMMIGRATION ENFORCEMENT AUTHORITY!
  3. [BUREAU] ‘CRATS CONTINUE TO FLEE SINKING DHS SHIP AS ABUSES, LIES, COVER-UPS MOUNT — John Sanders Latest To Exit — Trump Taps Mark Morgan, Eager Architect Of Administration’s Temporarily Aborted “Community Reign of Terror” (A/K/A/ “Operation Wetback ‘19”) Program As Next Acting CBP Chief — Expect More Mindless Cruelty, Lies, False Narratives, White Nationalist Racism, Violations Of Law & Human Rights!
  4. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”

SUPREMES BOOST ADMINISTRATION’S “GULAG” WITH SPLIT DECISION ON MANDATORY DETENTION STATUTE — NIELSEN V. PREAP — Why Both Sides “Live To Fight Another Day”

HERE’S THE “FULL TEXT” OF THE DECISION:

PREAP-16-1363_a86c

SYLLABUS BY COURT STAFF (NOT PART OF THE OPINION):

NIELSEN, SECRETARY OF HOMELAND SECURITY,

ET AL. v. PREAP ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 16–1363. Argued October 10, 2018—Decided March 19, 2019*

Federal immigration law empowers the Secretary of Homeland Security to arrest and hold a deportable alien pending a removal decision, and generally gives the Secretary the discretion either to detain the alien or to release him on bond or parole. 8 U. S. C. §1226(a). Another provision, §1226(c)—enacted out of “concer[n] that deportable crimi- nal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings,” Demore v. Kim, 538 U. S. 510, 513—sets out four categories of aliens who are inadmissible or de- portable for bearing certain links to terrorism or for committing spec- ified crimes. Section 1226(c)(1) directs the Secretary to arrest any such criminal alien “when the alien is released” from jail, and §1226(c)(2) forbids the Secretary to release any “alien described in paragraph (1)” pending a determination on removal (with one excep- tion not relevant here).

Respondents, two classes of aliens detained under §1226(c)(2), al- lege that because they were not immediately detained by immigra- tion officials after their release from criminal custody, they are not aliens “described in paragraph (1),” even though all of them fall into at least one of the four categories covered by §§1226(c)(1)(A)–(D). Be- cause the Government must rely on §1226(a) for their detention, re- spondents argue, they are entitled to bond hearings to determine if they should be released pending a decision on their status. The Dis- trict Courts ruled for respondents, and the Ninth Circuit affirmed.

——————

* Together with Wilcox, Acting Field Office Director, Immigration and Customs Enforcement, et al. v. Khoury et al. (see this Court’s Rule 12.4), also on certiorari to the same court.

2 NIELSEN v. PREAP Syllabus

Held: The judgments are reversed, and the cases are remanded.

831 F. 3d 1193 and 667 Fed. Appx. 966, reversed and remanded. JUSTICE ALITO delivered the opinion of the Court with respect to Parts I, III–A, III–B–1, and IV, concluding that the Ninth Circuit’s interpretation of §1226(c) is contrary to the plain text and structure

of the statute. Pp. 10–17, 20–26.
(a) The statute’s text does not support the argument that because

respondents were not arrested immediately after their release, they are not “described in” §1226(c)(1). Since an adverb cannot modify a noun, §1226(c)(1)’s adverbial clause “when . . . released” does not modify the noun “alien,” which is modified instead by the adjectival clauses appearing in subparagraphs (A)–(D). Respondents contend that an adverb can “describe” a person even though it cannot modify the noun used to denote that person, but this Court’s interpretation is not dependent on a rule of grammar. The grammar merely com- plements what is conclusive here: the meaning of “described” as it appears in §1226(c)(2)—namely, “to communicate verbally . . . an ac- count of salient identifying features,” Webster’s Third New Interna- tional Dictionary 610. That is the relevant definition since the indis- putable job of the “descri[ption] in paragraph (1)” is to “identif[y]” for the Secretary which aliens she must arrest immediately “when [they are] released.” Yet the “when . . . released” clause could not possibly describe aliens in that sense. If it did, the directive given to the Sec- retary in §1226(c)(1) would be incoherent. Moreover, Congress’s use of the definite article in “when the alien is released” indicates that the scope of the word “alien” “has been previously specified in con- text.” Merriam-Webster’s Collegiate Dictionary 1294. For that noun to have been previously specified, its scope must have been settled by the time the “when . . . released” clause appears at the end of para- graph (1). Thus, the class of people to whom “the alien” refers must be fixed by the predicate offenses identified in subparagraphs (A)– (D). Pp. 10–14.

(b) Subsections (a) and (c) do not establish separate sources of ar- rest and release authority; subsection (c) is a limit on the authority conferred by subsection (a). Accordingly, all the relevant detainees will have been arrested by authority that springs from subsection (a), and that fact alone will not spare them from subsection (c)(2)’s prohi- bition on release. The text of §1226 itself contemplates that aliens arrested under subsection (a) may face mandatory detention under subsection (c). If §1226(c)’s detention mandate applied only to those arrested pursuant to subsection (c)(1), there would have been no need for subsection (a)’s sentence on the release of aliens to include the words “[e]xcept as provided in subsection (c).” It is also telling that subsection (c)(2) does not limit mandatory detention to those arrested

Cite as: 586 U. S. ____ (2019) 3

Syllabus

“pursuant to” subsection (c)(1) or “under authority created by” sub- section (c)(1), but to anyone so much as “described in” subsection (c)(1). Pp. 15–17.

(c) This reading of §1226(c) does not flout the interpretative canon against surplusage. The “when . . . released” clause still functions to clarify when the duty to arrest is triggered and to exhort the Secre- tary to act quickly. Nor does this reading have the incongruous re- sult of forbidding the release of a set of aliens whom there is no duty to arrest in the first place. Finally, the canon of constitutional avoid- ance does not apply where there is no ambiguity. See Warger v.Shauers, 574 U. S. 40, 50. Pp. 20–26.

JUSTICE ALITO, joined by THE CHIEF JUSTICE and JUSTICEKAVANAUGH, concluded in Parts II and III–B–2:

(a) This Court has jurisdiction to hear these cases. The limitation on review in §1226(e) applies only to “discretionary” decisions about the “application” of §1226 to particular cases. It does not block law- suits over “the extent of the Government’s detention authority under the ‘statutory framework’ as a whole.” Jennings v. Rodriguez, 583 U. S. ___, ___. For reasons stated in Jennings, “§1252(b)(9) does not present a jurisdictional bar.” See id., at ___. Whether the District Court in the Preap case had jurisdiction under §1252(f)(1) to grant in- junctive relief is irrelevant because the court had jurisdiction to en- tertain the plaintiffs’ request for declaratory relief. And, the fact that by the time of class certification the named plaintiffs had obtained ei- ther cancellation of removal or bond hearings did not make these cases moot. At least one named plaintiff in both cases could have been returned to detention and then denied a subsequent bond hear- ing. Even if that had not been so, these cases would not be moot be- cause the harms alleged are transitory enough to elude review.County of Riverside v. McLaughlin, 500 U. S. 44, 52. Pp. 7–10.

(b) Even assuming that §1226(c)(1) requires immediate arrest, the result below would be wrong, because a statutory rule that officials “‘shall’ act within a specified time” does not by itself “preclud[e] ac- tion later,” Barnhart v. Peabody Coal Co., 537 U. S. 149, 158. This principle for interpreting time limits on statutory mandates was a fixture of the legal backdrop when Congress enacted §1226(c). Cf.Woodford v. Garceau, 538 U. S. 202, 209. Pp. 17–20.

JUSTICE THOMAS, joined by JUSTICE GORSUCH, concluded that three statutory provisions—8 U. S. C. §§1252(b)(9), 1226(e), and 1252(f)(1)—limit judicial review in these cases and it is unlikely that the District Courts had Article III jurisdiction to certify the classes. Pp. 1–6.

ALITO, J., announced the judgment of the Court and delivered the

4 NIELSEN v. PREAP Syllabus

opinion of the Court with respect to Parts I, III–A, III–B–1, and IV, in which ROBERTS, C. J., and THOMAS, GORSUCH, and KAVANAUGH, JJ., joined, and an opinion with respect to Parts II and III–B–2, in which ROBERTS, C. J., and KAVANAUGH, J., joined. KAVANAUGH, J., filed a con- curring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which GORSUCH, J., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

WHY THE SOLICITOR GENERAL’S OFFICE SHOULD BE HAPPY: 

🙂  They won;

🙂  They whipped the detested Ninth Circuit and bested several of those “liberal West Coast District Judges” who are always meddling, and also whacked the ACLU who was representing the plaintiffs;

🙂  While the issue regarding the constitutionality of mandatory indefinite detention without bond remains, there is some reason to believe that the Supremes will eventually take that issue and the “breakdown” will be the same, thus resulting in another Government victory;

🙂  For now, except in the 9th Circuit, the DHS is free to “slammerize” indefinitely without recourse any foreign national convicted of certain deportable crimes, even if the conviction was long ago, the sentence has been completed, and the individual has stayed out of trouble since release;

🙂 The longer the constitutional issue kicks around the lower Federal Courts, the more “Trumpy” those courts are likely to get.

WHY THE ACLU AND THEIR ALLIES SHOULD ALSO BE HAPPY: 

🙂  They prevailed on the issue of the Court’s jurisdiction to decide the claim;

🙂  This case was decided on a very narrow statutory basis involving rather arcane linguistic analysis;

🙂  The issue of the constitutionality of the mandatory detention statute remains very much “alive” in the lower Federal Courts;

🙂  The ACLU and other plaintiffs have preliminarily won on the constitutional issue in the Ninth Circuit (Rodriguez v. Marin) following a Supreme Court remand (Jennings v. Rodriguez); therefore, an injunction in the Ninth Circuit remains in effect requiring bond hearings every six months for those mandatorily detained pending further proceedings in the U.S. District Court;

🙂 The ACLU is likely to prevail on the constitutional issue in the District Court and the Ninth Circuit; depending on the pace of the lower court proceedings, Rodriguez might not come up for decision by the Supremes until after the 2020 election;

🙂  If the Democrats were to sweep the 2020s (a big “if,” to be sure, particularly after 2016), the ACLU might be able to convince a Democratic President and Congress to solve the problem with legislation mitigating mandatory detention without review, thereby perhaps “mooting” the Supreme Court case before decision;

🙁 But, keep in mind that once in power, Obama and other Democratic Administrations embraced mandatory detention and were more than happy to defend it in court and employ it in practice;

🙂  On the other hand, the ACLU probably can count on the Trump Administration to continue to pile up a record of detention abuses that will “rev up” more Democratic political sentiment for at least some statutory restraints on, if not outright abolition of, long-term civil immigration detention.

Stay tuned!

PWS

03-18-19

 

Related posts:

  1. “OUR GANG” IN ACTION: 9th CIR. REMANDS JENNINGS V. RODRIGUEZ, KEEPS INJUNCTION IN EFFECT, HINTS THAT ADMINISTRATION SCOFFLAWS COULD BE IN FOR ANOTHER BIG LOSS! – Will We See The End Of Indefinite Mandatory Immigration Detention & A Resurgence Of The Fifth Amendment?
  2. CONTINUING JUDICIAL EDUCATION FOR ARTICLE III JUDGES: “Kids In Cages” Ought To Be Displayed Outside Every Federal Courthouse & The Supremes So That “Robed Enablers” Can See The Results Of Their Abdication Of Constitutional Duties!
  3. DUE PROCESS IN ACTION: WHAT HAPPENS WHEN AN INDEPENDENT ARTICLE III COURT ACTS TO ENFORCE CONSTITUTIONAL RIGHTS BEING IGNORED BY DHS & DOJ: Here’s One Family’s “Human Story” About How the 9th Circuit’s Decision In Jennings v. Rodriguez Saved Them (And Also Us)! — Bond Hearings Can Mean EVERYTHING To A Detained Immigrant & Family!
  4. ROBIN UREVICH TAKES US INSIDE THE DEADLY “NEW AMERICAN GULAG” OPERATED BY THE DHS — “Civil Detainees” Are Dying At A Rate Of About One Per Month In The Hands Of Our Government — Many Think Some Of These Deaths Were Preventable!

TWO LA TIMES EDITORIALS “SPOT ON” IN CALLING OUT TRUMP’S FAILED BORDER POLICIES, BOGUS EMERGENCY, & ABUSE OF IMMIGRATION ENFORCEMENT AUTHORITY!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=d85e48a2-1a59-4182-854b-dfd9a146177c

TThe numbers are sobering. The federal government reported Tuesday that immigration agents apprehended 76,000 people — most of them families or unaccompanied minors — at the U.S.-Mexico border in February, twice the level of the previous year and the highest for February in 11 years. The increase continues a trend that began in the fall, and offers direct evidence that President Trump’s strategy of maximal enforcement at the border is not reducing the flow of migrants.

And no, the answer is not “a big, beautiful wall.” Most of those apprehended weren’t trying to sneak past border agents; instead, they sought out agents once they reached the border and turned themselves in, hoping to receive permission to stay.

Furthermore, the situation isn’t a national security emergency, as he has declared in an effort to spend more on his border wall than Congress provided. It’s a complex humanitarian crisis that appears to be worsening, and it’s going to take creative analytical minds to address.

For instance, the vast majority of the families flowing north in recent months come from poor regions of Guatemala, where food insecurity and local conflicts over land rights and environmental protections are pushing more people off their farms and into even deeper poverty, according to human rights observers and U.S. Customs and Border Protection. Just months earlier, gang violence in urbanized areas were pushing people north to the United States; increasingly now, it’s economics.

But Trump’s rhetoric may be playing a role too. The more he threatens draconian enforcement and cutbacks in legal immigration, the more people contemplating moving north are pushed to go sooner, before it gets even harder to reach the U.S. Similarly, more migrants are arriving at more treacherous and remote stretches of the border to avoid getting stuck in Tijuana or other border cities where the U.S. government has reduced the number of asylum seekers it will allow in, claiming an inability to process the requests.

The system is overwhelmed. But the solution isn’t to build a wall, incarcerate more people, separate children from their parents or deny people their legal right to seek asylum. The solution is to improve the efficiency and capacity of the system to deal with the changed migrant demographics. A decade ago, about 1 in 100 border crossers was an unaccompanied minor or asylum seeker; now about a third are.

More judges and support staffs are necessary for the immigration court system, as the Trump administration has sought from Congress. Yet the case backlog there has continued to grow — in part because the increase in enforcement actions, in part because the Justice Department ordered the courts to reopen cases that had been closed administratively without deportations, often because the migrant was in the process of obtaining a visa. A faster and fair process would give those deserving asylum the answer they need sooner, cutting back on the years they spend in limbo, while no longer incentivizing those unqualified for asylum to try anyway.

The Migration Policy Institute, a think tank, has suggested one partial fix. Currently, migrants claiming asylum have a near-immediate initial “credible fear” hearing with an asylum officer from U.S. Citizenship and Immigration Services, who determines whether the migrant has a significant potential to make a successful asylum claim. Most migrants pass that low threshold and are then directed to the immigration courts to make the formal case, a more involved process that can take years. Keeping those cases within the citizenship and immigration branch for an administrative hearing instead of sending them to immigration court could lead to faster decisions for the deserving at a lower cost — a single asylum agent is cheaper than a court staff — while preserving legal rights by giving those denied asylum a chance to appeal to the immigration courts. That’s a process worth contemplating.

More fundamentally, the current system hasn’t worked for years, and under Trump’s enforcement strategy it has gotten worse. It’s a big ask, but Congress and the president need to work together to develop a more capable system that manages the many different aspects of immigration in the best interests of the nation while accommodating the rights of the persecuted to seek asylum.

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=1cbd9b3d-f2d0-4249-b602-37223ff3f407

The U.S. government is reportedly compiling dossiers on journalists, lawyers and activists at the border.

ASan Diego television station recently obtained some troubling documents that seem to show that the U.S. government, working with Mexican officials under a program called Operation Secure Line, has created and shared dossiers on journalists, immigrant rights lawyers and activists covering or involved with the so-called caravans of migrants moving from Central America to the U.S.-Mexico border.

Worse yet, the government then detained some of these people for questioning (one photojournalist was held for 13 hours), barred some of them from crossing the border and interfered with their legitimate efforts to do their jobs. NBC 7 also received a copy of a purported government dossier on lawyer Nicole Ramos, refugee program director for a migrant rights group, that included a description of her car, her mother’s name, and details on her work and travel history. That’s not border security, that’s an intelligence operation and, as the American Civil Liberties Union pointed out, “an outrageous violation of the First Amendment.”

The ACLU noted correctly that it is impermissible for the government to use “the pretext of the border to target activists critical of its policies, lawyers providing legal representation, or journalists simply doing their jobs.”

It’s unclear when the intelligence gathering began, or how widespread it is, but the Committee to Protect Journalists reported in October that U.S. border agents, using the broad power the law gives them to question people entering the country, seemingly singled out journalists for in-depth examinations, including searching their phones, laptops and cameras — all without warrants, because they’re generally not required at the border. These are troubling developments deserving of close scrutiny by Congress and, if warranted, the courts.

The Department of Homeland Security is responsible for controlling the flow of people across U.S. borders and has broad and court-recognized authority to search for contraband. But the government should not use that authority as a pretext to try to gain information to which it would not otherwise be entitled. And it certainly doesn’t give it a framework for harassing or maintaining secret files on journalists, lawyers and activists who are covering, representing or working with activists.

Homeland Security defended the targeting by linking the intelligence operation to the agency’s investigation of efforts this winter by some Central American migrants to cross the wall near San Ysidro, Calif. It said also that all the people entered into the database had witnessed border violence. That sounds an awful lot like a criminal investigation, not a border security operation.

The name of the report leaked to NBC 7 was “Migrant Caravan FY-2019: Suspected Organizers, Coordinators, Instigators, and Media.” The only thing suspect here is the government’s actions.

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

Unfortunately, the second editorial on the “enemies list” shows why the first one on solving the Central American forced migration issue in a sensible, legal, and humanitarian manner simply isn’t in the cards without “regime change.”

First, the Trump Administration simply lacks the competence, professionalism, and expertise to solve real problems. The absolutely stunning incompetence of Nielsen and the rest of the politicos who supposedly run immigration and national security policy these days was on full display this week. America’s “real” enemies must have been watching with glee at this public demonstration of lack of competence and concern for any of the actual national security issues facing our nation.

Career civil servants who have the knowledge, expertise, motivation, and ability to solve migration problems have been forced out, buried in make-work “hallwalker jobs” deep in the bowls of the bureaucracy, or simply silenced and ignored. The Administration has also declared war on facts, knowledge, human decency and scorns the humanitarian expertise available in the private and NGO sectors.

Second, there is zip motivation within the Trump Kakistocracy to solve to the problem. As long as neo-Nazi Stephen Miller is in charge of immigration policy, we’ll get nothing but White Nationalist, racist nonsense. Miller and the White Nationalist restrictionists (like Trump & Sessions) have no motivation to solve immigration problems in a practical, humane, legal manner.

No, the White Nationalist agenda is to use lies, intentionally false narratives, racial and ethnic stereotypes, bogus statistics, and outright attacks on our legal system to further an agenda of hate, intolerance, and division in America intended to enfranchise a largely White GOP kakistocracy while disenfranchising everyone else. It plays to a certain unhappy and ill-informed political “base” that has enabled a minority who cares not a whit about the common good to seize control of our country.

While the forces of evil, division, and Constitutional nihilism can be resisted in the courts, the press, and now the House of Representatives, the reign of “malicious incompetence” can only be ended at the ballot box. If it doesn’t happen in 2020, and there is certainly no guarantee that it will, it might well be too late for the future of our republic.

PWS

03-07-19

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. AMERICA’S “MASS ATROCITY” — Professor Kate Cronin-Furman Says Don’t Kid Yourself About What The Trump Administration Is Doing In Your Name & How “Ordinary Civil Servants” Carry Out The Unthinkable & Unacceptable!
  3. COURTSIDE HAS BEEN AT THE FOREFRONT OF EXPOSING THE “CRIMES AGAINST HUMANITY” COMMITTED BY THE REGIME AND THE MORAL CULPABILITY OF THOSE WHO WILLFULLY CARRY OUT & ENABLE THESE ATROCITIES — The “Mainstream Media” Is Now Channeling Courtside! — “In the meantime, no government has the right to treat people with such abject inhumanity. History will remember Trump for this, but it will also remember the people who enable such atrocious acts.”
  4. HISTORICAL PERSPECTIVE: CLYDE W. FORD @ LA TIMES: “Opinion: The immigration crisis and the racism driving it have roots in Hitler’s ‘bible’”

9TH CIR. SAYS STATUTE BARRING MEANINGFUL JUDICIAL REVIEW OF EXPEDITED REMOVAL PROCESS VIOLATES CONSTITUTION‘S SUSPENSION CLAUSE — Throws “Monkey Wrench” Into Administration’s “Deportation Railroad” On West Coast — THURAISSIGIAM v. USDHS

https://www.nytimes.com/2019/03/07/us/asylum-seekers-ninth-circuit.html

Miriam Jordan reports for the NY Times:

LOS ANGELES — Creating yet another roadblock to the Trump administration’s efforts to deport ineligible migrants, a federal appeals court ruled on Thursday that immigration authorities can no longer swiftly deport asylum seekers who fail an initial screening, opening the door for thousands of migrants a year to get another shot in the federal courts to win asylum in the United States.

The ruling broadens constitutional protections for undocumented immigrants at the border and opens a new legal gateway for some of them to appeal for permission to stay in the country, even when an asylum officer and an immigration judge have made a determination that they do not have a credible fear of persecution in their homeland.

“The historical and practical importance of this ruling cannot be overstated,” said Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project, who argued the appeal on behalf of a Sri Lankan migrant who had been turned away at California’s border with Mexico in 2017. He said the ruling “reaffirms the Constitution’s foundational principle that individuals deprived of their liberty must have access to a federal court.”

After dropping precipitously over five decades, the number of migrants intercepted at the southern border — the key indicator of how many undocumented people are entering the United States — is soaring again, driven by an influx of families from Central America fleeing violence and poverty. Immigration authorities received more than 99,000 requests for asylum interviews during the 2018 fiscal year, including more than 54,000 submitted at the southwest border.

[Read the latest edition of Crossing the Border, a limited-run newsletter about life where the United States and Mexico meet. Sign up here to receive the next issue in your inbox.]

President Trump has said that migrants are exploiting the asylum system by making baseless and fraudulent claims in order to remain in the United States, and his administration has taken a number of steps to make the process harder, including narrowing the grounds for winning asylum, limiting the number of asylum seekers who can be processed at the border each day and requiring some applicants to wait in Mexico while their cases make their way through the courts.

In 2016, the most recent year for which data is available, an estimated 7,200 migrants were denied permission to apply for asylum after their initial interviews and were placed in expedited deportation proceedings. An analysis by the Transactional Records Access Clearinghouse at Syracuse University found that in June 2018, only 15 percent of initial asylum reviews found that the asylum seeker had a credible fear of persecution, about half the proportion that had prevailed a year earlier.

Thursday’s court decision will most likely send that trend in the other direction, legal analysts said.

“This is a historic decision,” said Stephen Yale-Loehr, an immigration scholar at Cornell Law School. “But the government will surely appeal this to the Supreme Court.”

The opinion, from the United States Court of Appeals for the Ninth Circuit, extends constitutional habeas corpus guarantees to those applying for asylum at the border and provides that they can seek a hearing in the federal courts before being summarily deported — though the court did not specify what standards the courts must use to evaluate such petitions.

The ruling applies to asylum seekers in the five states included in the court’s jurisdiction — California, Arizona, Washington, Oregon and Hawaii — and, because it conflicts with an earlier ruling rejecting such legal protections in the Third Circuit, the issue is likely to be resolved ultimately by the Supreme Court. In the meantime, legal analysts said, the western court’s decision is likely to have sweeping implications for immigration deterrence efforts by enabling thousands to remain in the country while they seek the court review.

Under current procedure, every migrant who arrives at the border and expresses a fear of persecution in his or her homeland is referred for an interview with an asylum officer. Those who succeed in convincing the officer that they have a credible fear are allowed to enter the country and proceed with their asylum cases in the immigration courts. Those who don’t can request a review by an immigration judge, but it is usually cursory and favorable decisions are rare. There is usually no access to a lawyer, and no opportunity to challenge the decision; deportation quickly ensues.

In the case before the appeals court, Vijayakumar Thuraissigiam, a member of Sri Lanka’s Tamil ethnic minority, was arrested about 25 yards north of the border near San Ysidro, Calif., and told an asylum officer that he was fearful of returning to his homeland. The officer found no credible fear, and that finding was upheld by a supervisor and an immigration judge.

Mr. Thuraissigiam was in deportation proceedings when he filed a habeas corpus petition in the federal court. He argued that the asylum officer had failed to elicit important background about his case, including that he had been detained and beaten by Sri Lankan army officers on two occasions, and at one point had been lowered into a well and nearly drowned. He also said there were communication problems between the translator and both the asylum officer and the immigration judge.

As a result, his lawyers argued, he was deprived of “a meaningful right to apply for asylum.”

A district court judge in Los Angeles rejected that argument, but the three-judge appeals court panel, sitting in San Francisco, held that even though an asylum seeker may lack the right to a full trial in immigration court, the Constitution requires a more complete review than what immigration law currently provides.

At its “historical core,” said the 48-page opinion written by Judge A. Wallace Tashima, “the writ of habeas corpus has served as a means of reviewing the legality of executive detention, and it is in that context that its protections have been strongest.”

Here’s the full text of the 9th Circuit’s decision.

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/03/07/18-55313.pdf

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

As noted in the article, this issue is likely to end up with the Supremes, although perhaps not as quickly as the Administration might wish.

If anyone ever gets around to looking at the “rubber stamp review” by Immigration Judges that Sessions encouraged, it’s not going to be pretty for those judges giving short shrift to Due Process for asylum seekers.

Stay tuned.

PWS

03-07-19

 

 

Related posts:

  1. SCOFFLAWS OUTED AGAIN: U.S. DISTRICT JUDGE BLOCKS TRUMP’S ILLEGAL ATTACK ON ASYLUM LAW: ORDERS PROCESSING OF ALL WHO APPLY TO RESUME! — “Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden!”
  2. AMERICA’S “MASS ATROCITY” — Professor Kate Cronin-Furman Says Don’t Kid Yourself About What The Trump Administration Is Doing In Your Name & How “Ordinary Civil Servants” Carry Out The Unthinkable & Unacceptable!
  3. WHILE LIFE-TENURED FEDERAL JUDGES CHICKEN OUT, FORMER ASYLUM OFFICER DOUG STEPHENS SPEAKS OUT IN NYT VIDEO EDITORIAL AGAINST JUDICIALLY-ENABLED NATIONAL DISGRACE OF “LET ‘EM DIE IN MEXICO” — “A former asylum officer says ‘remain in Mexico’ and other policies undermining asylum aren’t just racist, they’re illegal.”
  4. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

THE GIBSON REPORT — 03-04-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

THE GIBSON REPORT — 03-04-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

TOP UPDATES

 

Rand Paul Says He’ll Vote Against Trump’s Border Emergency, Likely Forcing A Veto

NPR: Senator Rand Paul of Kentucky says he’ll vote in favor of a resolution to terminate President Trump’s national emergency declaration with regards to the U.S.-Mexico border. Paul’s support means the resolution will likely pass the Senate with bipartisan support and could force the president to issue his first veto.

 

‘Remain in Mexico’ gets an expansion

Politico: A Homeland Security official alerted POLITICO’s Ted Hesson [on 2/28/19] that the Trump administration will today expand its “remain in Mexico” policy — which requires asylum seekers to stay in Mexico while awaiting resolution of their cases — to ports of entry in El Paso, San Diego, and Calexico, Calif. Olga Sánchez Cordero, Mexico’s interior minister, said Thursday that approximately 150 asylum seekers have thus far been returned to Mexico under the program. That’s a fraction of the tens of thousands who arrive at the border each month.

 

29 parents separated from their children and deported last year cross U.S. border to request asylum

WaPo: The group of parents quietly traveled north over the past month, assisted by a team of immigration lawyers who hatched a high-stakes plan to reunify families divided by the Trump administration’s family separation policy last year. The 29 parents were among those deported without their children, who remain in the United States in shelters, in foster homes or with relatives.

 

28 women may have miscarried in ICE custody over the past 2 years

AZ Rep: The delivery of a stillborn baby at an immigration detention center in Texas comes after the Trump administration ended an Obama-era policy against holding pregnant women in detention centers.

 

HHS docs show thousands of alleged incidents of sexual abuse against unaccompanied minors in custody

CNN: The Department of Health and Human Services received more than 4,500 complaints of sexual abuse against unaccompanied minors from 2014-2018, according to internal agency documents released Tuesday by Florida Democratic Rep. Ted Deutch.

 

Data from the Center for Migration Studies Shows Sharp Multiyear Decline in Undocumented Immigration

CMS: [T]he Center for Migration Studies of New York (CMS) reports that the US undocumented population has declined by one million since 2010; illegal entries have plummeted to historic lows; and, in recent years, only one third of newly undocumented residents entered this population by crossing the US-Mexico border.

 

Southern Poverty Law Center Launches ‘Immigrant Songs’ Campaign: Listen

Billboard: The Southern Poverty Law Center has launched a campaign to provide legal information and to “protect and advance immigrant rights” through song. “El Corrido de David y Goliat,” by Flor de Toloache, is the first single released as part of the SPLC’s Immigrant Songs campaign.

 

It’s so dangerous to police MS-13 in El Salvador that officers are fleeing the country

WaPo: There is no list in either El Salvador or the United States of Salvadoran police officers who have fled the country. But The Washington Post has identified 15 officers in the process of being resettled as refugees by the United Nations and six officers who have either recently received asylum or have scheduled asylum hearings in U.S. immigration courts. In WhatsApp groups, police officers have begun discussing the possibility of a migrant caravan composed entirely of Salvadoran police — a caravana policial, the officers call it.

 

Physicians for Human Rights Sends Letter Detailing the Health Risks for Infants in Detention

On February 28, 2019, Physicians for Human Rights sent a letter to DHS Secretary Kirstjen Nielsen regarding the inherent health risks for infants in detention. AILA Doc. No. 19022837

 

Immigration Courts’ Growing Reliance on Videoconference Hearings Is Being Challenged

AIC: In some parts of the country, it has long been the practice for detained immigrants to appear for their immigration court hearings via video teleconference (“VTC”), rather than in-person. This is especially the case for immigrants being held in remote detention centers, hours from the nearest immigration court. However, under the Trump administration, immigration courts are increasingly relying on VTC.

 

Brooklyn DA supports plan to give driver’s licenses to illegal immigrants

NYPost: There is already state legislation pending, and the Fiscal Policy Institute estimates 265,000 immigrants would be eligible to apply if the measure passes.

 

Americans’ immigration emergency: Their spouses could be deported or exiled if they seek green cards

PRI: Enough families have already been hurt by the law, with its mandatory “bars,” or exile, that can last 10 years, 20 years, even a lifetime, depending on the spouse’s immigration history, as the Center for Public Integrity has reported in multiple stories. But with Trump insisting there’s a “national emergency” on the southern border—despite record low crossings—these US citizens want to let their fellow Americans know that they’re suffering an emergency every day.

 

U.S. denied tens of thousands more visas in 2018 due to travel ban: data

Reuters: The U.S. State Department refused more than 37,000 visa applications in 2018 due to the Trump administration’s travel ban, up from less than 1,000 the previous year when the ban had not fully taken effect, according to agency data released on Tuesday.

 

40 Years After The Vietnam War, Some Refugees Face Deportation Under Trump

NPR: More than four decades after the Vietnam War brought waves of expatriates to the United States, the Trump administration wants to deport thousands of Vietnamese immigrants, including many refugees, because of years-old criminal convictions. U.S. officials have been working behind the scenes to convince the Vietnamese government to repatriate more than 7,000 Vietnamese immigrants with criminal convictions. They have all been ordered removed from the U.S. by a judge.

 

Human Smugglers Are Thriving Under Trump

Atlantic: Trump’s “zero tolerance” immigration policies have made America’s historically weak anti-smuggling efforts even weaker. Over the past two years, as smuggling networks have thrived, the Department of Homeland Security has shifted money and manpower away from more complex investigations to support the administration’s all-out push to arrest, detain, and deport immigrants here illegally.

 

Emails Show US Border Officials Didn’t Receive “Zero Tolerance” Guidance Until After The Policy Was Enacted

BuzzFeed: US border officials didn’t receive guidance from the Trump administration on how to implement its “zero tolerance” policy that led to separations of migrant families until after Department of Homeland Security Secretary Kirstjen Nielsen signed a memo enacting it, according to emails obtained by Democracy Forward through a Freedom of Information Act request.

 

When Trump declared national emergency, most detained immigrants were not criminals

WaPo: According to new U.S. Immigration and Customs Enforcement figures obtained by The Washington Post, the nation’s immigration jails were not filled with such criminals. As of Feb. 9, days before the president’s declaration, nearly 63 percent of the detainees in ICE jails had not been convicted of any crime.

 

He Exposed Abuse At A Florida Immigrant Detention Center. Now He’s In Prison

WLRN: Weeks after a documentary exposing injustices at a South Florida for-profit immigration detention center debuted at a national film festival, Claudio Rojas— the film’s inside source— was arrested by U.S. Immigration and Customs Enforcement in Miramar during his annual visa check-in, records show.

 

LITIGATION/CASELAW/RULES/MEMOS

 

Trump Administration Forced To Extend TPS Protections To More Than 250,000 Immigrants Due To Court Injunction

Newsweek: The Department of Homeland Security announced on Thursday that to comply with a court injunction it would extend the Temporary Protected Status it sought to terminate for hundreds of thousands of immigrants from El Salvador, Nicaragua, Haiti and Sudan.

 

Exasperated Federal Judge Pokes Holes In Trump Administration’s Refusal To Protect Young Immigrants

Gothamist: A federal judge in Manhattan heard arguments Monday on a class action case that could determine whether undocumented immigrants in New York between the ages of 18 and 21 can stay in the country legally if they’ve been abused or abandoned by a parent.

 

ICE Detention Center Says It’s Not Responsible for Staff’s Sexual Abuse of Detainees

ACLU: Although the employee pled guilty to criminal institutional sexual assault under Pennsylvania law, the defendants contend that they should not be liable for any constitutional violations. Their argument rests in part on their assessment that the sexual abuse was “consensual” and that they should be held to a different standard because the Berks Family Residential Center is an immigration detention facility rather than a jail or prison.

 

The Government Is Hiding Information About How It Deports People – This Lawsuit Seeks to Expose That

AIC: The lawsuit demands the Executive Office for Immigration Review and the Department of Justice release to the public information on how immigration court stays of removal are decided.

 

Judge grants citizenship to twin son of gay couple

AP: A federal judge in California ruled Thursday that a twin son of a gay married couple has been an American citizen since birth, handing a defeat to the U.S. government, which had only granted the status to his brother. The State Department was wrong to deny citizenship to 2-year-old Ethan Dvash-Banks because U.S. law does not require a child to show a biological relationship with their parents if their parents were married at the time of their birth, District Judge John F. Walter found.

 

At Least Nine Babies Are Being Detained by U.S. Immigration Authorities, a Complaint Says

Buzzfeed News reports that according to a complaint filed by AILA, the American Immigration Council, and CLINIC, at least nine infants under the age of 1, and some as young as 6 months, have been detained by ICE at a Texas detention center where they lack adequate medical care. AILA Doc. No. 19030136

 

ICE Releases Guidance on Migrant Protection Protocols

ICE released a memo providing guidance to impacted Enforcement and Removal Operations (ERO) field offices on implementation of the Migrant Protection Protocols. AILA Doc. No. 19022870

 

Presidential Proclamation on Declaring a National Emergency Concerning the Southern Border of the United States

President Trump issued a presidential proclamation on 2/15/19 declaring a national emergency along the southern border. (84 FR 4949, 2/20/19) AILA Doc. No. 19021539

 

USCIS Releases Q&As from Teleconference Discussing USCIS Intercountry Adoption Policy Guidance

USCIS provided background and effective dates, as well as Q&As, from the 1/22/19 teleconference on determining suitability of prospective adoptive parents for intercountry adoption policy guidance that USCIS issued on 11/9/18. AILA Doc. No. 19011400

 

USCIS Provides Q&As from Teleconference on N-648 Changes

USCIS provided the Q&As from the 2/12/19 teleconference discussing USCIS policy guidance on Form N-648, Medical Certification for Disability Exceptions. The Q&As covered the effective date, N-648 requirements, policy highlights, and more. AILA Doc. No. 19012835

 

USCIS to Publish Revised Form I-539 and New Form I-539A

USCIS announced that on 3/11/19, it will publish a revised Form I-539, Application to Extend/Change Nonimmigrant Status, and a new Form I-539A to replace the Supplement A in previous versions of Form I-539. Starting on 3/11/19, USCIS will only accept I-539s with a 2/4/19 edition date. AILA Doc. No. 19021137

 

USCIS Processing Delays Soared While Application Rates Fell

AILA Policy Counsel Jason Boyd highlights newly released USCIS data and shows how the new information “has cast an even harsher glare on the agency’s well-documented failure to process its caseload in a timely fashion.” AILA Doc. No. 19030137

 

RESOURCES

 

 

EVENTS

 

 

ImmProf

 

Monday, March 4, 2019

Sunday, March 3, 2019

Saturday, March 2, 2019

Friday, March 1, 2019

Thursday, February 28, 2019

Wednesday, February 27, 2019

Tuesday, February 26, 2019

Monday, February 25, 2019

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

Thanks, Elizabeth!

 

PWS

03-05-19

Related posts:

  1. THE GIBSON REPORT — 04-09-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Project — Why Acting DHS Secretary Kevin McAleenan Should End Up In Jail If He Follows Trump’s Unlawful & Unconstitutional Plans!
  2. ⚖️THE GIBSON REPORT — 03-15-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group — Keep Up To Date On The Biden Administration’s Immigration Plans & Actions!
  3. BIA SEEKS TO REPEAL CAT BY MISINTERPRETATION; MUSALO’S FACT FINDING MISSION TO EL SALVADOR SHOWS MALICIOUS ABSURDITY OF REGIME’S BOGUS “SAFE THIRD COUNTRY” ASSAULT ON HUMAN RIGHTS; 9th & 11th CIRCUITS CONTINUE TO TANK ON THE RULE OF LAW; & OTHER LEGAL NEWS ABOUT THE WHITE NATIONALIST REGIME & THE RESISTANCE — The Gibson Report — 12-10-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group
  4. THE GIBSON REPORT — 02-21-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

SYSTEMIC FAILURE: 9TH Circuit’s Most Recent Reversal Of BIA Demonstrates Disturbing Lack Of Basic Judicial Competence At All Levels Of EOIR – But, Even The 9th’s Rebuke Misses The Real Point – There Can Be No Due Process In Complex Cases Of This Type Without Legal Representation! – Arrey v. Barr

Arrey v Barr — 9th — Firm Resettlement

Arrey v. Barr, 9th Cir., 02-16-19, Published

SUMMARY BY COURT STAFF:

The panel granted in part a petition for review of the Board of Immigration Appeals’ decision affirming an immigration judge’s denial of asylum, withholding of removal, and protection under the Convention Against Torture to a citizen of Cameroon, and remanded.

The panel rejected petitioner’s contention that she was deprived of her due process right to a full and fair hearing based on the denial of her right to retained counsel and an unbiased fact finder. The panel held that the IJ in this case provided petitioner reasonable time to locate an attorney, where the IJ provided several continuances so she could do so, warned her repeatedly that he would not grant further continuances, and attempted to call her attorney when he failed to appear on the day of her merits hearing. The panel also held that although the IJ was rude and harsh with petitioner, petitioner failed to establish that the IJ’s conduct prejudiced her, where the IJ held a complete hearing and made a thorough decision that fully examined the underlying factual matters, and any potential prejudice caused by the IJ’s questionable adverse credibility determination was cured by the Board’s subsequent decision assuming the credibility of petitioner’s testimony in full.

The panel held that the Board committed three legal errors in its application of the firm resettlement bar, which precludes asylum relief if an applicant was firmly resettled in another country prior to arriving in the United States. First, the panel held that the Board erred by failing to consider whether the conditions of petitioner’s offer of resettlement in South Africa were too restricted for her to be firmly resettled. Second, the panel held that the Board erred by applying the firm resettlement rule not as a mandatory bar to petitioner’s asylum claim, but instead as a limitation on the evidence the Board considered in support of her claim for relief from removal to Cameroon, thus causing the Board to improperly ignore evidence of the abuse petitioner suffered in Cameroon before fleeing to South Africa, as well as evidence of the nature of her relationship with her abuser. Third, the panel held that the Board erred by applying the firm resettlement bar to petitioner’s withholding of removal claim, which is not subject to the firm resettlement bar.

Turning to petitioner’s CAT claim, the panel held that substantial evidence did not support the Board’s determination that petitioner could avoid future harm through internal relocation in Cameroon.

The panel remanded petitioner’s asylum, withholding, and CAT claims for further proceedings consistent with its opinion.

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

 

PANEL: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block,* District Judge.

* The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation.

OPINION BY:  Judge Gould

KEY QUOTE:

Petitioner Delphine Arrey petitions for review of the Board of Immigration Appeals’ (“BIA” or “Board”) decision dismissing her appeal of an immigration judge’s (“IJ”) denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We conclude that the IJ did not deny Arrey her due process rights to counsel and an unbiased factfinder. As to Arrey’s asylum and withholding of removal claims, we conclude that the Board erred as a matter of law in its analysis and application of the “firm resettlement” rule. As to Arrey’s claim for relief under CAT, we conclude that substantial evidence does not support the Board’s determination that Arrey could safely relocate in another area of Cameroon. We grant the petition in part and remand for reconsideration of Arrey’s claims consistent with our opinion.

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

Even the 9th Circuit “blew” the fundamental issue here: No matter how annoying the respondent’s conduct might have been, there was no way to conduct a fair hearing in a case of this complexity without counsel present.  

From this recitation of facts, it’s pretty obvious that the respondent had no idea what “firm resettlement” was or how the process for proving or disproving it worked. Going ahead with the hearing created a miscarriage of justice that simply wasted time by going all the way the 9th Circuit and then being returned for competent judicial adjudication applying the correct standards. Haste makes waste.

And the overwhelming backlog that obviously was on the judge’s mind here was not created by this respondent and her attorney; no, it primarily results from “aimless docket reshuffling,” poor administration, Congressional neglect, and “designed to fail policies” by politicos in the DOJ (under the improper and unethical political influence of the DHS) which went into “overdrive” under Sessions.

Getting to the merits, beyond apparently correctly setting forth the respondent’s name and “A number,” the Immigration Judge and the BIA got largely everything else in this case wrong! The basic errors range from a “clearly erroneous” adverse credibility ruling, to a legally incorrect standard for “firm resettlement,” to an idiotically nonsensical ruling that “threats and one attempted assault of rape” did not “rise to the level of persecution” (cases involving these facts were routinely granted by the BIA during my tenure and, to my knowledge, were uniformly granted by IJs in Arlington; indeed, I can’t even imagine an ICE Assistant Chief Counsel during my tenure in Arlington arguing the contrary), to wrong evidentiary determinations, to another completely nonsensical finding on internal relocation.

In other words, this was a “rubber stamp” by BIA “judges” of a staff attorney’s writeup with canned “any reason to deny” language. It was not a fair and impartial adjudication by an “expert” group of appellate judges.

Far from it. If a student had turned this in as an exam answer to a hypothetical case on my Georgetown Law final exam, it would have received “zero credit.” So, how is it “OK” to have a system where individuals in what are supposed to be senior judicial positions, requiring great expertise in immigration, asylum, and human rights law, perform in a manner that would have been deemed unacceptable for L2s and L3s?

It isn’t; and it’s up to the Article III Courts and Congress to get some backbone and some integrity and put an end to this travesty. Yeah, this is “only one case.” But, it involves a human life. Cameroon is a horrible country; credible Cameroonian asylum cases were routinely granted in the Arlington Immigration Court, normally without appeal by ICE.

And for every case where a respondent is lucky enough to get a “Court of Appeals intervention,” dozens of individuals, many without lawyers or the faintest knowledge of what’s happening, are “railroaded” through this fundamentally unfair and constitutionally defective system. This, rather than the bogus wall, or an influx of desperate refugee families seeking asylum, is our true “national emergency” involving immigration: The disdain by our current Administration for the rule of law, human rights, judicial quality, simple human decency, and Due Process of Law under our Constitution! 

Congrats to Attorney Ron Richey, an “Arlington Immigration Court regular,” who appeared before me many times, for fighting for due process and justice in another jurisdiction. You are an inspiration to all of us in the “New Due Process Army!”

PWS

03-01-19

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  4. GONZO’S WORLD: RECENT ARTICLES SHOW HOW SESSIONS’S SHOCKINGLY INAPPROPRIATE REMARKS TO NEW IMMIGRATION JUDGES VIOLATED EOIR CODE OF JUDICIAL ETHICS, SHOWED DISRESPECT FOR THE LAW, AND VIOLATED THE FUNDAMENTAL RULES OF GOOD IMMIGRATION JUDGING BY DIRECTING JUDGES NOT TO BE SYMPATHETIC TO REFUGEES! – TURNING REFUGEE LAW AND HISTORY ON ITS HEAD!

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.”

“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.

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

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

Related posts:

  1. SUPREMES HEAR ARGUMENTS ON LONG-TERM PRE-HEARING IMMIGRATION DETENTION! — JENNINGS V. RODRIGUEZ
  2. 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!
  3. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!
  4. TRUMP ADMINISTRATION SCOFFLAWS’ LATEST PLOT AGINST ASYLUM SEEKERS SURE TO CAUSE INTERNATIONAL CHAOS & DRAW NEW LEGAL CHALLENGES – No Wonder These Immoral Cowards Have Such Fear Of Truly Independent Judges (Not To Be Confused With EOIR’s “Captive Judges”)

LITHWICK & STERN @ SLATE: Will California’s Appeal To Conservative Jurisprudence Convince Conservative Judges In Litigation Against Trump’s Fake National Emergency?

https://slate.com/news-and-politics/2019/02/california-lawsuit-trump-emergency-wall-conservative-gorsuch.html

Dahlia Lithwick and Mark Joseph Stern write in Slate:

Last Friday, President Donald Trump declared a national state of emergency at the southern border, adding that it wasn’t one of those emergencies he actually “needed” to declare and then saying a bunch of other things. As he predicted, a coalition of 16 states filed a federal lawsuit on Monday night, seeking a preliminary injunction to prevent the president from acting on his emergency declaration. As he also predicted, that suit was filed in federal district court in California.

What Trump did not predict—and probably could not, given his tenuous grasp on the legal limitations of executive authority—is that Monday’s lawsuit is, at bottom, extremely conservative. The suit does not appeal to the justices’ empathy for vulnerable immigrants or question whether Trump’s racist motives might undermine the declaration’s legality. Instead, it relies upon ancient principles of separation of powers to make a very strong case that Trump has short-circuited the Constitution. It is not a lawsuit about equality, or dignity, but about the nuts and bolts that undergird the constitutional lawmaking process. It is wonky, and formal, terse, and unromantic. And if the Supreme Court’s conservatives have any consistency, Monday’s lawsuit should persuade them to block Trump’s wall.

The 16 plaintiff states center their 57-page complaint around a basic argument: that the president has violated the cardinal principle of separation of powers by trammeling Congress’ will to achieve his policy preferences. Trump, the lawsuit alleges, “has used the pretext of a manufactured ‘crisis’ of unlawful immigration to declare a national emergency and redirect federal dollars appropriated for drug interdiction, military construction, and law enforcement initiatives toward building a wall on the United States-Mexico border.” There is “no objective basis” for this declaration, as Trump himself has essentially admitted. Further, “[t]he federal government’s own data prove there is no national emergency at the southern border that warrants construction of a wall,” and unauthorized entries are “near 45-year lows.”

Much of the complaint details funding that will be diverted from National Guard and drug-interception projects favored by the states in order to build the wall instead. The plaintiffs say that grants them standing to sue in federal court since the president is redirecting money that would benefit their interests to a project that will not. But the states aren’t simply upset because they would have preferred that the money be used for military construction and law enforcement. They are upset because, they allege, the money has been taken from these projects and from their citizens to be used illegally.

Trump, the plaintiff states write, has “violated the United States Constitution’s separation of powers doctrine by taking executive action to fund a border wall for which Congress has refused to appropriate funding.” By “unilaterally diverting funding that Congress already appropriated for other purposes to fund a border wall for which Congress has provided no appropriations,” the president has run afoul of the Presentment Clause.

This lawsuit joins a series of others that have already been filed by watchdog groups. While they all argue that there is no actual emergency at the southern border, that is not the gravamen of their complaint. Instead of asking the courts to second-guess Trump’s intent, these challengers ask them to decide whether Trump had authority to act in the first place.

The answer, they assert, is no. The Presentment Clause is straightforward: For a bill to become law, it must pass both houses of Congress, then be presented to the president for approval. Yet Congress never passed a bill authorizing and funding the border wall Trump now demands. It never presented such legislation to the president for his signature. This is the stuff of Civics 101. Whatever powers the National Emergencies Act may grant to the president, a federal statute cannot override the Constitution. The executive cannot use funds Congress did not appropriate. He cannot amend statutes himself to create money for pet projects. Trump asked Congress for a large sum of money to construct a border wall; Congress resoundingly and provably said no. The National Emergencies Act does not give him leeway to contravene Congress’ commands.

These problems ought to be catnip for SCOTUS’ conservative justices—particularly Justice Neil Gorsuch. In his very first dissent on the Supreme Court, Gorsuch extolled the virtues of this pristine constitutional system. “If a statute needs repair,” he wrote, “there’s a constitutionally prescribed way to do it. It’s called legislation.” Gorsuch continued:

To be sure, the demands of bicameralism and presentment are real and the process can be protracted. But the difficulty of making new laws isn’t some bug in the constitutional design: it’s the point of the design, the better to preserve liberty.

A year later, in his rightly celebrated opinion in Sessions v. Dimaya, Gorsuch hammered this same point home again. “Under the Constitution,” he wrote, “the adoption of new laws restricting liberty is supposed to be a hard business, the product of an open and public debate among a large and diverse number of elected representatives.” The courts abdicate their responsibility when they ignore the Constitution’s “division of duties” between the branches of government. These “structural worries” form the bedrock of American constitutional governance, whose ultimate goal is to safeguard “ordered liberty.” These new challenges demonstrate that Trump is circumventing these “structural worries” and harming “ordered liberty” in the process.

There’s also clear precedent for allowing states to take up this kind of challenge. When President Barack Obama tried to defer deportation for the undocumented parents of American citizens and legal residents, the Supreme Court’s conservatives threw a fit. They accused the president of legislating from the Oval Office and acting without congressional approval. And they succeeded in blocking that program after Texas and 25 other states sued based on an allegation of the flimsiest of hypothetical harms. In that case, Obama was merely executing a statute that allowed him to set “national immigration enforcement policies and priorities,” not building a border wall by fiat in defiance of congressional appropriators. If a president can violate the cardinal principle of separation of powers by stretching congressional guidance, and the states can sue him for it, surely he commits the same constitutional sin against those states by flouting congressional commands.

Litigants have learned well, after two long years of arguing over the travel ban, that the five conservatives have little to no interest in probing what lies in the president’s heart. They simply don’t care about what might or might not be a pretext, or whether tweets should count. They want clinical analysis of formal constitutional authority and presidential power. California v. Trump offers that up on a silver platter: Whatever the president can do—whether his name is Obama or Trump—he cannot take funds Congress refused to appropriate and use them to thwart the will of Congress. No tears, no drama, no probing of the executive’s soul. Just the cornerstone of the Framers’ plan.

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

The appeal to “conservative jurisprudence” certainly appeared to “score” with Circuit Judge Jay Bybee of the 9th Circuit and Chief Justice John Roberts in the recent East Bay Sanctuary case (asylum regulations). Can it bring over Justice Neil Gorsuch and others in California v. Trump?

On the other hand, Professor Aziz Huq, writing in Politico says the case is already over and Trump has won because of the Supremes’ prior “what me worry” tank job in Hawaii v. Trump, the so-called “Travel Ban 3.0 Case” which also involved a “Trumped up bogus national emergency” to fulfill a political campaign promise. https://www.politico.com/magazine/story/2019/02/19/trump-national-emergency-border-wall-225164

With due respect to Professor Huq, I think this case is different because Congress specifically considered Trump’s request and “reasoning” for wanting more “Wall money” and rejected it. Whether that difference “makes a difference,” in terms of result, remains to be seen.  Stay tuned!

PWS

02-20-19

NOTE: An earlier version of this post misidentified the subject of the East Bay Sanctuary case — it was about the Trump Administration’s attempt to circumvent the asylum statute, NOT DACA, in which the Court has taken no action on the Government’s pending petition.

Related posts:

  1. 16 STATES SUE TRUMP ON BOGUS NATIONAL EMERGENCY — Nolan Says Trump Ultimately Likely To Prevail — “Slate 3” Appear To Agree!
  2. MARK JOSEPH STERN @ SLATE ON WHY JUDGE BYBEE’S 65-PAGE EVISCERATION OF TRUMP’S LAWLESS ASYLUM ORDER IS SO IMPORTANT: “The next time Trump floats a flagrantly lawless idea, then, it’s worth remembering that nativist bluster cannot transmogrify an illegitimate command into a permissible executive order. Just because the president considers ending citizenship for the children of unauthorized immigrants, for instance, does not mean he can actually get away with it. Like the INA, the Constitution grants certain rights that the president cannot unilaterally rescind—including birthright citizenship. Bybee felt no compunction to pretend that Trump’s illicit scheme has any legitimacy. Neither should the rest of us.”
  3. SUPREME TANK: COMPLICIT COURT ENDS U.S. ASYLUM PROTECTIONS BY 7-2 VOTE — Endorses Trump’s White Nationalist Racist Attack On Human Rights & Eradication Of Refugee Act Of 1980 — On 09-11-19, Supremes Celebrate By Joining Trump’s Attack On America & Humanity! — Only Justices Ginsburg & Sotomayor Have Guts To Stand Up For Constitution & Rule Of Law!
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?”