9th Circuit – Page 18 – immigrationcourtside.com

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

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

Maura Dolan reports for the LA Times:

By

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

. . .

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

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

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

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

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

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

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

Magana-Ortiz-9thReinhardt17-16014

PWS

03-30-18

HON. JEFFREY CHASE RETURNS WITH MORE ANALYSIS OF RETIRED JUDGES’ AMICUS BRIEF IN C.J.L.G. V. SESSIONS

https://www.jeffreyschase.com/blog/2018/3/21/amicus-brief-filed-in-cjlg-v-sessions

Mar 21 Amicus Brief Filed in C.J.L.G. v. Sessions

On March 15, lawyers with the firm of Simpson, Thacher & Bartlett filed an amicus brief with the U.S. Court of Appeals for the Ninth Circuit on behalf of 11 former immigration judges and BIA Board members in the case of C.J.L.G. v. Sessions. The case involves a child from Honduras who appeared in immigration court accompanied only by his mother. As the respondent could not obtain a lawyer in the time afforded, the immigration judge went forward with the hearing, informing the mother that she would “represent” her son.

The respondent is an asylum applicant whose gang-related claim rested on his ability to precisely delineate a particular social group pursuant to requirements complex enough to stump most attorneys. As his mother lacked any legal training, his hearing did not go well. On appeal, the BIA affirmed the IJ’s denial of the claim. In its decision, the BIA determined that the respondent did not suffer past persecution when at the age of 13, members of MS-13, a brutal, multinational gang, threatened to kill him, his mother, and his aunt if he refused to join their ranks, put a gun to his head to emphasize their point, and told him that he had one day to decide. The BIA also found the hearing before the IJ to have been fair, and that the respondent was not denied due process because the immigration laws do not require the appointment of counsel in removal proceedings.

Hon. Dana Marks, an outstanding jurist and president emeritus of the National Association of Immigration Judges, often states that immigration judges hear “death penalty cases under traffic court conditions.” What she means by this is that a genuine asylum seeker who is denied relief and deported faces the risk of death in the country from which he or she fled. Yet the conditions under which such life-or-death claims are heard are inadequate; the limited time and resources afforded to the judges hearing such claims are better suited for a court hearing much lower stakes matters such as traffic tickets. Courts hearing cases involving matters of life and liberty have a higher obligation to afford due process. First and foremost, a defendant facing criminal charges in a state or federal court is entitled to assigned counsel. However, although the stakes may be higher in an asylum case, respondents in immigration court have no such entitlement. Although the respondent in C.J.L.G. may face death if deported, having a judge determine it was fine to proceed, and telling his mother that she would represent him sounds like something that might be appropriate in traffic court.

A three-judge panel of the Ninth Circuit denied the respondent’s petition for review. Interestingly, the respondent was found credible in his recounting of the death threats he suffered and as to his fear of return; the court accepted the statistics provided by respondent’s counsel that unrepresented respondents succeed on their claims only 10 percent of the time, whereas as represented minors enjoy a 47 percent success rate. The court also assumed that the respondent qualifies as an indigent (due to his mother’s inability to afford private counsel), and that ordering him removed would send him “back to a hostile environment where he has faced death threats in the past implicates his freedom.” The court further acknowledged that the immigration laws and regulations include assuring minors “the right to a ‘full and fair hearing,’ which includes the ‘opportunity to present evidence and testimony on one’s behalf,’ cross-examine witnesses, and examine and object to adverse evidence.” It would be difficult to argue that an unrepresented minor is capable of exercising such rights.

In spite of this, the court denied the petition, determining that there was no Constitutional right to assigned counsel at government expense to minors in removal proceedings. The court further found that the respondent had not demonstrated prejudice, as he had not established a nexus to a protected ground as required to establish eligibility.

The ACLU has filed a petition for the Ninth Circuit to rehear the case en banc. It is in support of this latest petition that the latest amicus brief was filed. I am one of the former IJs included in the brief; I join my colleagues in being proud to assist in such a noble effort as securing assigned counsel for immigrant children facing the legal complexities and dire consequences of immigration proceedings. In a nutshell, the brief argues that the efforts of an immigration judge to provide a fair hearing is no substitute for counsel. Immigration judges can only do so much faced with “overburdened and growing dockets, the complexity of immigration law, and, as Department of Justice (DOJ) employees, the constraints of administrative policy.”

The problem is compounded in cases in which the asylum claim is based on membership in a particular social group. The BIA has recently held that an asylum applicant must specifically delineate such group, a requirement that is clearly beyond the ability of a child (or his or her mother) to do. As the brief points out, in this case, the respondent “ and his mother showed no understanding of why a gang-related threat alone would not warrant asylum, but the IJ’s cursory inquiry ended without seeking the motivation for the threat.”

Of course, the entire issue could be resolved by the Department of Justice choosing to do what is right by agreeing to provide assigned counsel at government expense to this most vulnerable group.

Heartfelt thanks to partner Harrison J. “Buzz” Frahn and associate Lee Brand of the law firm of Simpson Thacher & Bartlett for their dedication and effort in drafting the excellent brief.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

JEFF CHASE
Mar 10 The AG’s Strange Decision in Matter of E-F-H-L-
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Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First. He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

Blog Archive Contact

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As pointed out by Jeffrey, this is an incredibly important case for Due Process under our Constitution! Let’s hope that the en banc Ninth gives it a close look.

PWS

03-22-18

RETIRED US IMMIGRATION JUDGES FILE AMICUS BRIEF IN SUPPORT OF MINOR RESPONDENT’S RIGHT TO COUNSEL IN 9TH CIRCUIT EN BANC REQUEST – C.J.L.G. v. Sessions, 9th Cir., Filed March 15, 2018 – Read It Here!

FIRST, AND FOREMOST, A BIG THANKS TO THE “REAL HEROES” AT SIMPSON THACHER & BARTLETT LLP, SAN FRANCISCO, AND THEIR OUTSTANDING SUPPORT TEAM, WHO DID ALL THE “HEAVY LIFTING:”

Harrison J. (Buzz) Frahn, Partner

Lee Brand, Associate

HERE’S THE TABLE OF CONTENTS:

TABLE OF CONTENTS Page

IDENTITY AND INTEREST OF AMICI CURIAE ………………………………………….. 1 SUMMARY OF ARGUMENT ……………………………………………………………………… 3 ARGUMENT ………………………………………………………………………………………………. 4

I. Immigration Judges Cannot Independently Develop a Child’s Case to Permit the Fair Adjudication that Due Process Requires ……………………………………..

4 A. Immigration Judges Are Overwhelmed ………………………………………… 5

B. DOJ Policy Mandates Efficiency and Skepticism ………………………….. 7

C. Immigration Law Is Exceedingly Complex …………………………………… 9

D. Counsel Dramatically Improve Outcomes …………………………………… 12

II. The Panel Vastly Overstates the Value of Existing Procedures for Unrepresented Minors ……………………………………………………………………….. 13

A. The Duty to Develop the Record Does Not Obviate the Need for Counsel …………………………………………………………………………………… 13

B. A Parent Does Not Obviate the Need for Counsel ………………………… 17

C. A Pro Bono List Does Not Obviate the Need for Counsel …………….. 18

CONCLUSION ………………………………………………………………………………………….. 19

HERE’S THE “CAST OF CHARACTERS” & THE SUMMARY OF ARGUMENT:

IDENTITY AND INTEREST OF AMICI CURIAE

Amici curiae are former Immigration Judges (IJs) who collectively have over 175 years’ experience adjudicating immigration cases, including thousands of cases involving children. A complete list of amici is as follows:

Sarah M. Burr served as an IJ in New York from 1994 to 2012 and as Assistant Chief Immigration Judge for New York from 2006 to 2011. She currently serves on the board of Immigrant Justice Corps.

Jeffrey S. Chase served as an IJ in New York from 1995 to 2007 and as an advisor at the Board of Immigration Appeals (BIA) from 2007 to 2017. Previously, he chaired the Asylum Reform Task Force of the American Immigration Lawyers Association (AILA) and received AILA’s pro bono award.

George T. Chew served as an IJ in New York from 1995 to 2017. Previously, he served as a trial attorney at the INS.

Cecelia M. Espenoza served as a member of the BIA from 2000 to 2003 and as Senior Associate General Counsel at the Executive Office for Immigration Review (EOIR) from 2003 to 2017.

Noel Ferris served as an IJ in New York from 1994 to 2013 and as an advisor at the BIA from 2013 to 2016. Previously, she led the Immigration Unit of the U.S. Attorney’s Office for the Southern District of New York. 2

John F. Gossart, Jr. served as an IJ from 1982 to 2013. Previously, he served in various positions at the INS. Judge Gossart served as president of the National Association of Immigration Judges, co-authored the National Immigration Court Practice Manual, and received the Attorney General Medal.

Eliza Klein served as an IJ in Miami, Boston, and Chicago from 1994 to 2015.

Lory D. Rosenberg served as a member of the BIA from 1995 to 2002. Previously, she served on the board of AILA and received multiple AILA awards. Judge Rosenberg co-authored the treatise Immigration Law and Crimes.

Susan G. Roy served as an IJ in Newark. Previously, she served as a Staff Attorney at the BIA and in various positions at the INS and its successor Immigration and Customs Enforcement.

Paul W. Schmidt served as chair of the BIA from 1995 to 2001, as a member of the BIA from 2001 to 2003, and as an IJ in Arlington from 2003 to 2016. Previously, he served as acting General Counsel and Deputy General Counsel at the INS.

Polly A. Webber served as an IJ in San Francisco from 1995 to 2016, with details in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando. Previously, she served a term as National President of AILA. 3

Amici have dedicated their careers to improving the fairness of the immigration system, particularly in the administration of justice to children. In amici’s personal judicial experience, children are incapable of meaningfully representing themselves in this nation’s labyrinthine immigration system. Absent legal representation, IJs cannot independently develop a child’s case to permit the fair adjudication that due process requires. Accordingly, amici have a profound interest in the resolution of this case.1

SUMMARY OF ARGUMENT

Respectfully, the Panel erred in determining that IJs can and will ensure the due process rights of pro se children without the aid of counsel. This error is painfully clear from the vantage point of IJs, who face overburdened and ever-growing dockets, the complexity of immigration law, and, as Department of Justice (DOJ) employees, the constraints of administrative policy. As such, and as demonstrated by the impact of counsel on a child’s likelihood of success in immigration court, IJs lack the necessary time, resources, and power to ensure that unrepresented minors receive meaningful adjudication of their eligibility to remain in this country. 1 No party’s counsel authored this brief in whole or in part; no party, party’s counsel, nor anyone other than amici or their counsel contributed money that was intended to fund preparing or submitting this brief. All parties have consented to the filing of this brief. 4

The Panel further erred in vastly overstating the value to pro se children of certain extant procedural safeguards. While the Panel correctly identifies an IJ’s duty to develop the record, it fails to understand the practical and procedural limits of this duty in the context of an adversarial proceeding, and wrongly transforms it into a cure-all for the otherwise overwhelming lack of due process an unrepresented minor would receive. The Panel similarly holds up the hypothetical availability of pro bono counsel as a potential due process panacea, and Judge Owens’s concurrence suggests the same of the presence of a parent. But these factors also fall far short of remedying the basic unfairness of forcing children to represent themselves in immigration court.

If the Panel’s decision is not revisited, thousands of minors will be forced to navigate the complex immigration system without representation. In many instances, these children will be returned to life-threatening circumstances despite their eligibility to legally remain in this country. It is hard to imagine a question of more exceptional importance.

HERE’S A LINK TO THE COMPLETE BRIEF FOR YOUR ENTERTAINMENT, EDUCATION, AND READING ENJOYMENT:

2018.03.15 CJLG Amicus Brief of IJs

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A special “shout out” of appreciation to my 10 wonderful colleagues who joined in this critically important effort. It’s an honor to work with you and to be a part of this group.

DUE PROCESS FOREVER!

PWS

03-20-18

SUPREMES AGREE TO TAKE ANOTHER DETENTION CASE — This One Involves The “When Released” Issue For Mandatory Detention – Nielsen v. Preap, 9th Cir.

http://www.scotusblog.com/case-files/cases/nielsen-v-preap/

SCOTUS BLOG REPORTS

Nielsen v. Preap

Docket No. Op. Below Argument Opinion Vote Author Term

16-1363 9th Cir. TBD TBD TBD TBD OT 2018

Issue: Whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.

SCOTUSblog Coverage

Justices decline to weigh in on constitutionality of death penalty (Amy Howe)

Petitions of the day (Aurora Barnes)

Date Proceedings and Orders

Mar 31 2017 Application (16A944) to extend the time to file a petition for a writ of certiorari from April 11, 2017 to May 11, 2017, submitted to Justice Kennedy.

Apr 07 2017 Application (16A944) granted by Justice Kennedy extending the time to file until May 11, 2017.

May 11 2017 Petition for a writ of certiorari filed. (Response due June 12, 2017)

May 18 2017 Order extending time to file response to petition to and including July 12, 2017, for all respondents.

Jun 26 2017 Order further extending time to file response to petition to and including August 11, 2017.

Aug 08 2017 Brief of respondents Mony Preap, et al. in opposition filed.

Aug 23 2017 DISTRIBUTED for Conference of 9/25/2017.

Aug 23 2017 Reply of petitioners Elaine C. Duke, Acting Secretary of Homeland Security, et al. filed. (Distributed)

Feb 27 2018 DISTRIBUTED for Conference of 3/2/2018.

Mar 12 2018 DISTRIBUTED for Conference of 3/16/2018.

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
16-1363	9th Cir.	TBD	TBD	TBD	TBD	OT 2018

Date	Proceedings and Orders
Mar 31 2017	Application (16A944) to extend the time to file a petition for a writ of certiorari from April 11, 2017 to May 11, 2017, submitted to Justice Kennedy.
Apr 07 2017	Application (16A944) granted by Justice Kennedy extending the time to file until May 11, 2017.
May 11 2017	Petition for a writ of certiorari filed. (Response due June 12, 2017)
May 18 2017	Order extending time to file response to petition to and including July 12, 2017, for all respondents.
Jun 26 2017	Order further extending time to file response to petition to and including August 11, 2017.
Aug 08 2017	Brief of respondents Mony Preap, et al. in opposition filed.
Aug 23 2017	DISTRIBUTED for Conference of 9/25/2017.
Aug 23 2017	Reply of petitioners Elaine C. Duke, Acting Secretary of Homeland Security, et al. filed. (Distributed)
Feb 27 2018	DISTRIBUTED for Conference of 3/2/2018.
Mar 12 2018	DISTRIBUTED for Conference of 3/16/2018.

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Supremes have taken lots of immigration detention cases. The results have been all over the place, but generally more favorable to migrants than to the Government. However, in the last case, Jennings v. Rodriguez, not so much. Stay tuned.

PWS

03=20-18

VICTORY ON THE WESTERN FRONT: “Western Brigade Of The NDPA” (A/K/A Pangea Legal Services) wins Key Bond Battle! — “An immigration court should not serve to merely justify an immigrant’s deportation, but rather it should be there to serve justice. . . . We hope Floricel’s case serves as a lesson for all immigration judges across the United States.”

https://static1.squarespace.com/static/50b1609de4b054abacd5ab6c/t/5aab2aac758d467bf8761e84/1521167020690/Habeas+Order,+Floricel+Liborio+Ramos+v.+Sessions,+2018.03.13.pdf

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FEDERAL DISTRICT COURT’S ORDER FREEING FLORICEL LIBORIO SHOULD SERVE AS A LESSON TO ALL IMMIGRATION JUDGES ACROSS THE U.S.

March 15, 2018
by Pangea Team

On Wednesday, March 14, 2018, Pangea client, Floricel Liborio Ramos, was freed from immigration detention after substantial litigation, multiple appeals, and requests for her release. Today, on her first day free after 11 months, Floricel came out to speak in gratitude for the massive community love and support she received throughout her detention. We hope that her case can set a positive example for judges and courts across the United States. Read the Federal District Court’s order here.

Community members from Faith in Action, RISE, California Immigrant Youth Justice Alliance, the Immigrant Liberation Movement, and others out in support of Floricel’s hearing at the Federal District Court in Northern California (San Francisco, March 13, 2017)

Federal District Court’s Order Freeing Floricel Liborio Should Serve as a Lesson to All Immigration Judges Across the U.S.

IMMIGRANT RIGHTS ACTIVISTS CELEBRATE THE MOMENTOUS REUNITING OF FLORICEL LIBORIO RAMOS WITH HER FAMILY AFTER ORDER BY UNITED STATES DISTRICT COURT JUDGE JON S. TIGAR REQUIRING HER RELEASE. THE ORDER SHOULD SERVE AS A LESSON TO IMMIGRATION JUDGES THAT THEY CANNOT DENY BOND TO IMMIGRANTS SIMPLY BECAUSE OF A DUI.

WHAT: Press conference in celebration of Floricel’s returning home to her children after over 11 months in immigration custody

WHERE: Phillip Burton Federal Building, 450 Golden Gate Ave., San Francisco, CA 94111

WHEN: 11:30am on Thursday, March 15, 2018

WHO: Floricel, immigrant rights activists, faith leaders and other supporters

San Francisco, CA- Immigrant rights activists hold press conference at SF Federal District Court Building welcoming Floricel Liborio Ramos after she was released on Wednesday following a District Court order granting her immediate release from the West County Detention Facility. Ms. Liborio Ramos detention comes to a celebrated closure after District Court Judge Jon S. Tigar ruled that the Government failed to meet its burden to demonstrate by clear and convincing evidence that Ms. Liborio Ramos poses a threat to the community.

Judge Tigar found Immigration Judge Burch had erred when she unfairly ruled that Floricel was a danger to the community given her previous DUIs, “The IJ’s decision not to release Liborio Ramos rests firmly on Liborio Ramos’s two DUI convictions.[…] while an immigrant’s criminal history is relevant, ‘criminal history alone will not always be sufficient to justify denial of bond on the basis of dangerousness.’”

“[T]wo non-violent [DUI] misdemeanors in which no one was injured, in light of the other facts in this record, simply do not justify indefinite detention,” Judge Tigar’s ruling continued. In a few days, Ms. Liborio Ramos would have been detained for nearly a year, more than the longest sentence she could have served under California law for a misdemeanor DUI.

“We’re seeing undocumented immigrants punished twice by the immigration courts,” claimed Jehan Laner Romero, Ms. Liborio Ramos’ attorney at Pangea Legal Services. “This was the case with Floricel, who was complying with the criminal court order for her prior DUI conviction.”

Community supporters of Ms. Liborio have much to celebrate after 8 months of arduous efforts to support her case by packing the courtroom during her hearings, holding rallies and uplifting their support for Floricel. Immigration Judge Valerie A. Burch had denied her bond on two different occasions, even though the Government failed to sustain its burden to prove Ms. Liborio Ramos was a danger to the community. To many, this only highlights the unjust practices of some immigration courts — and the importance of higher courts and community members to hold immigration judges accountable. “An immigration court should not serve to merely justify an immigrant’s deportation, but rather it should be there to serve justice,” said Blanca Vazquez, one of the organizers supporting Ms. Liborio Ramos’ case with the Immigrant Liberation Movement. “We hope Floricel’s case serves as a lesson for all immigration judges across the United States.”

Floricel speaks at press conference before the court that ordered her release (San Francisco, March 15, 2018)

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STEVE VLADECK @ JUST SECURITY: 9th Circuit Expedited Removal Case Might Further The “Dredscottification” Of Migrants — Are They Becoming “Non-Persons” Under Our Constitution? – What’s The Ultimate Cost To Us Of “Selective Application” Of Constitutional Protections?

https://www.justsecurity.org/53822/trouble-undocumented-immigrants-suspension-clause/

Steve writes:

“Back in August 2016, I wrote a lengthy post about the Third Circuit’s decision in Castro v. Department of Homeland Security, which held that recently-arrived undocumented immigrants, who are physically but not lawfully within the territorial United States, are not protected by the Constitution’s Suspension Clause—and therefore have no right to judicial review of their detention (or removal). Among many other problems with the Third Circuit’s analysis (see my original post for more), it created the anomalous result that enemy combatants held at Guantánamo, who have never set foot on U.S. soil, have more of an entitlement to judicial review than Central American women and their minor children in immigration detention in the United States who are seeking asylum (the petitioners in Castro).

The one saving grace to Castro was that it was only the law of the Third Circuit—Delaware, New Jersey, Pennsylvania, and, yes, the U.S. Virgin Islands. But a new case flying almost entirely under the radar in the Ninth Circuit has raised the same issue, and, thus far, has produced results no different from Castro. As I explain in the brief post that follows, if the Ninth Circuit disagrees with the Third Circuit’s deeply problematic reasoning in Castro, and believes that undocumented immigrants seeking asylum have a right to meaningful judicial review of their asylum claim before their removal, it needs to stay the removal of Vijayakumar Thuraissigiam, and use his case to give plenary review to the jurisdictional (and constitutional) question.

Thuraissigiam is a Tamil from Sri Lanka who was tortured in his home country by individuals he has identified as government intelligence officers before fleeing and eventually attempting to enter the United States—surreptitiously—across the U.S.-Mexico border. He was apprehended shortly after crossing the border (on U.S. soil), and then issued an expedited removal order after the government determined (with no judicial review) that he didn’t have a credible fear of persecution if returned to Sri Lanka.

Thuraissigiam attempted to challenge his expedited removal (and the credible-fear determination) through a habeas petition, and also sought an emergency stay of removal pending the disposition of his habeas petition. On March 8, the district court dismissed the petition for lack of jurisdiction, holding that the unavailability of habeas for non-citizens subject to expedited removal did not violate the Suspension Clause, largely because of Castro, the “analysis and ultimate conclusion [of which] are incredibly persuasive to the Court.” And because the court lacked jurisdiction over Thuraissigiam’s habeas petition, it also denied his motion for an emergency stay of removal.

Thuraissigiam appealed to the Ninth Circuit and renewed his motion for an emergency stay of removal. On March 12, a two-judge motions panel (Silverman & Christen, JJ.) denied the motion without meaningful discussion, leaving intact the original appellate briefing schedule (which would have opening briefs due on May 8). Of course, it’s possible that, once the case is fully briefed and argued before a merits panel, the Ninth Circuit will have a full opportunity to consider Castro‘s many flaws—and to hold that the Suspension Clause requires meaningful judicial review of these kinds of asylum claims, even when brought by undocumented immigrants who surreptitiously enter the United States.

The problem is that the case may well be moot by then, as, without a stay of removal, Thuraissigiam could well be sent back to Sri Lanka in the interim. And although Thuraissigiam sought reconsideration en banc, the Ninth Circuit’s General Orders only require such requests to be referred to staff attorneys, not to the full court. So it was, late last night, that the two-judge panel noted that the motion for en banc reconsideration was “referred to the Court” and denied.

That leaves emergency relief from Justice Kennedy (or the full Supreme Court) as the only remaining means for Thuraissigiam to stay his removal pending the Ninth Circuit’s resolution of the merits. (The Ninth Circuit could also expedite its consideration of the merits to moot the need for a stay, but it hasn’t yet…) Unless such relief is granted, the Ninth Circuit may never have a proper opportunity to decide whether or not to follow the Third Circuit down Castro‘s rabbit hole. And without such a ruling, it stands to reason that there will be more cases like Thuraissigiam’s, in which Castro serves to practically foreclose review, even if it’s not the law of the relevant circuit.

That’s no way to run a railroad, especially when the result is to send individuals back to countries in which they very well may credibly fear persecution (or worse).

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The only thing I take issue with in Steve’s outstanding analysis is his statement in the last paragraph “That’s no way to run a railroad!”

No, that exactly how Jeff “Gonzo Apocalypto” Sessions wants to and is running the “Deportation Railroad.” He’d love to apply “expedited removal” with no due process and no review to everyone in the United States.

I figure that once he gets done “crashing” the U.S. Immigration Court system, he’ll be asking Congress for “Universal Summary Removal,” having proved that due process for foreign nationals, or those believed by DHS to be foreign nationals, is simply too convoluted and impractical. This ties in nicely with the Administration’s view that the Due Process clause protects only the U.S. Government and Administration political officials.

Disturbingly, to date, I can find little evidence that the Courts of Appeals or the majority of the Supremes care about what happens to asylum applicants at the border and whether they are imprisoned or railroaded while here and sent back to death or torture abroad. As long as nobody on the Court of Appeals or nobody that they care about or consider human is affected, the Constitutional problems appear to be “out of sight, out of mind.”

Now, that might be “No way to run a railroad.”

PWS

03-15-18

PETER MARKOWITZ IN THE NYT: CA Can Thank The Late Justice Scalia For Likely Win On Sanctuary Case!

https://www.nytimes.com/2018/03/09/opinion/trump-california-sanctuary-movement.html

The Justice Department lawsuit emphasizes that immigration is a federal matter, that we must have a uniform scheme to oversee it and that this scheme is being undermined by sanctuary laws. In most states, federal immigration authorities are able to leverage state and local criminal justice systems. The Justice Department is arguing that California’s refusal to participate requires it to adapt and employ different enforcement strategies.
It is fair to ask whether states should have the power to abstain from federal law enforcement programs that they view as immoral or adverse to their local interests. It is not, however, a new question.
In fact, the question was decisively answered by the Supreme Court in 1997 in a case called Printz v. United States. That case involved a challenge to the federal Brady Act, which required local sheriffs to conduct background checks for gun purchasers. Some sheriffs resisted because they objected to the federal regulation of firearms. The Supreme Court, in a decision written by Justice Antonin Scalia, made clear that the sheriffs, and states generally, have a right to abstain from federal law enforcement schemes with which they disagreed.
It is this principle that distinguishes California’s decision to opt out of deportation efforts from Arizona’s decision to opt in.
The Justice Department is correct that the regulation of immigration is a federal matter. That’s why the Supreme Court made clear in the Arizona case that states may not insert themselves into immigration enforcement by directing its officers to arrest people on immigration charges. California, far from inserting itself, has extracted itself from federal immigration enforcement efforts in precisely the same way that the sheriffs in Printz extracted themselves from the federal effort to regulate the purchase of firearms.
Attorney General Sessions’s attempt to spin his attack on sanctuary laws as a logical extension of the Supreme Court’s Arizona decision is a transparent attempt to sidestep the clear rule established in Printz.
As California’s attorney general, Xavier Becerra, recently explained, “California is in the business of public safety, not in the business of deportations.” By exercising their constitutional right to stay out of the business of deportation, California and other sanctuary jurisdictions have been able to strengthen ties between local law enforcement and immigrant communities. Those ties, in turn, mean that immigrant witnesses and victims of crime are not fearful of coming forward to assist the local police. That is why a recent report by the Center for American Progress demonstrated that, contrary to Mr. Trump and Mr. Sessions’s heated rhetoric, sanctuary laws improve public safety by driving down overall crime rates.
This is precisely the type of legitimate justification for local abstention that the Supreme Court established as a bedrock principle of our federal system of government over two decades ago.
Follow The New York Times Opinion section on Facebook and Twitter (@NYTopinion), and sign up for the Opinion Today newsletter.
Peter L. Markowitz is a professor at the Benjamin N. Cardozo School of Law.

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

Interesting point. Strange bedfellows. Read the rest of Professor Markowitz’s article at the link.

PWS

03-10-18

OUT OF SIGHT, OUT OF MIND: It Didn’t Take This GOP Controlled Congress Long To Forget About Saving The “Dreamers!”

https://www.washingtonpost.com/powerpost/with-no-more-deadline-congress-has-stopped-talking-about-immigration/2018/03/01/12d66ad6-1c9d-11e8-b2d9-08e748f892c0_story.html

Paul Kane reports for the Washington Post:

“Take away a deadline, and Congress will simply lose its focus on any issue — even the heated debate around immigration.

At Tuesday morning’s House Republican briefing, just one of the five GOP leaders made a reference to the issue, and it was a passing one — a proposal meant mostly to placate conservatives, not a real solution that could get signed into law.

Across the Capitol, a few hours later, Senate Majority Leader Mitch McConnell (R-Ky.) and four senior Republicans did their weekly briefing. Topics ranged from gun background checks to the Winter Olympics. There was no immigration talk at all.

The four Senate Democrats who followed McConnell also made no mention of the looming Monday deadline to resolve the fate of 800,000 undocumented immigrants who have been shielded from the threat of deportation under an expiring executive order.

It’s understandable that most of the attention has shifted toward the fallout of the Valentine’s Day massacre of 17 students and faculty at a Florida high school, with the media intensely focused on gun laws and school violence.

Capitol Police remove a banner as members of the Catholic community and supporters of DACA recipients are arrested during a protest on Capitol Hill this week. (Saul Loeb/AFP/Getty Images)

All but one of the 17 questions fielded by House Speaker Paul D. Ryan (R-Wis.) and Senate Minority Leader Charles E. Schumer (D-N.Y.), at their separate press briefings, related in some way to the Parkland, Fla., shootings. The lone outlier focused on the memorial service for the Rev. Billy Graham.

This was supposed to be the week when Congress would force itself to resolve the dispute over the Obama administration’s Deferred Action for Childhood Arrivals (DACA) executive order, which President Trump announced in September he would revoke on March 5, giving Congress a six-month window to resolve the issue.

It was, in some ways, a masterful idea by the Trump West Wing, living up to his tough talk on immigration during the presidential campaign in 2016 but also foisting the issue into the laps of lawmakers.

But now, amid legislative and judicial gridlock, lawmakers and the media have moved on to other topics. First, the Senate failed two weeks ago to approve any compromise. Then, the Supreme Court declared it would not wade into the legal challenges to the DACA program until it plays out in lower federal court rulings — a legal process with no obvious end date in sight.

“We would be well advised to continue our work on it, but it seems to me that a lot of the air is out of the balloon here in the Capitol, and people don’t sense its urgency,” said Sen. John Cornyn (Tex.), the Republican whip who had been leading bipartisan talks.

Cornyn’s lead negotiating partner, Sen. Richard J. Durbin (Ill.), the Democratic whip, has declared helping the “dreamers,” as the undocumented immigrants who were brought here as children are known, an urgent, moral mandate. But even he understands why the issue has fallen off the radar.

Senate Majority Leader Mitch McConnell (R-Ky.) flanked by Sen. John Thune (R-S.D.), left, and Senate Majority Whip John Cornyn (R-Tex.), speaks with reporters this week about school safety measures in response to the Parkland, Fla., massacre that left 17 dead. The Republicans made no mention of immigration reform. (J. Scott Applewhite/AP)

“Along comes this tragedy, in the high school in Parkland, Florida, and the response of the young people and the national response of the subject, it blows away all other conversations about DACA and the Dream Act, North Korean nuclear threats,” Durbin said.

He and Cornyn have not held any serious immigration talks in weeks, he said — and he added that the same is true for a separate bipartisan group of centrist senators. And none are on tap.

“We talk but at this point we don’t have a plan,” he said.

Just like that, in the span of a few days — Senate gridlock, a madman’s bullets killing children and a judicial ruling — and the issue that consumed Washington for most of December, January and February is no longer worth a mention at a leadership news conference.

That’s not to say the issue has subsided from the political debate. Activists are trying to keep the pressure on Trump and Congress, with a rally planned for Sunday in Washington to draw attention to Monday’s DACA deadline that is set to pass without much fanfare.

In southwestern Pennsylvania, Republicans are furiously trying to stave off an embarrassing loss in a special election to fill a vacant House seat. The district tilted toward Trump by nearly 20 percentage points in 2016, a year in which Democrats did not even field a candidate against the longtime Republican incumbent, Tim Murphy, who resigned amid a scandal late last year.

Now, to halt the momentum for Democrat Conor Lamb, a GOP super PAC called the Congressional Leadership Fund has unleashed a new adthat ties Lamb to House Minority Leader Nancy Pelosi (D-Calif.) and her hometown San Francisco’s status as a “sanctuary city” for people in the country illegally.

“Conor Lamb wants to help Nancy Pelosi give amnesty to millions of illegal immigrants,” the narrator says. “Sanctuary cities and amnesty for illegals. Conor Lamb is a Pelosi liberal.”

Lamb, 33, a former assistant U.S. attorney, does support a path to citizenship for DACA recipients, but he has stated that he will not vote for Pelosi as speaker. That position was highlighted in a new ad he is running that calls for new leadership in both parties.

Clearly, Republicans believe the issue still has resonance with their conservative base voters, especially if it is mixed in with images of Pelosi. And Lamb seems to be aware of the threat.

But Republicans could face their own political dilemma if the federal courts rule that DACA was illegal, which would effectively reinstate Trump’s order and revoke protections from those 800,000 people. Deportations could begin quickly.

“I don’t believe that Senator McConnell and the Republicans want to see too many people deported out of Nevada and Arizona in the weeks and months ahead,” Durbin said.

He named two southwestern states with large dreamer populations where Republicans are trying to defend two Senate seats that could flip control of the Senate in the November midterm elections.

Republicans are well aware of the potential for a court ruling at any time.

“I’ve been working in and around courts long enough to know things can turn on a dime,” said Cornyn, who served as Texas attorney general, and on the state Supreme Court, before winning his Senate seat 15 years ago.

That said, Cornyn remains less than optimistic about congressional action until that court order arrives and forces action. Stating the obvious, he said: “We don’t do things around here unless there is a deadline.”

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

Given the ugliness surrounding the farcical “debate” about Dreamers in the Senate and pressure exerted by the White Nationalists/Bakuninists in the House, perhaps it’s just as well that Dreamers are “forgotten” for now.

My prediction: It will take “regime change” — however long that might take — to solve the “Dreamers’ dilemma” on a long-term basis. In the meantime, I think that their status and fate will be tied up in the courts for a long, long time — wasteful, but an unfortunate fact of life when we have “Gonzo Government” elected by a minority of voters.

PWS

03-02-18

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

9th-Tovar-CSPA-Absurd

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

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

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

OPINION BY: Judge Stephen Reinhardt

SUMMARY (BY COURT STAFF):

“Immigration

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

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

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

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

RODRIGUEZ TOVAR V. SESSIONS 3

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

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

KEY QUOTE:

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

22 RODRIGUEZ TOVAR V. SESSIONS

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

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

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

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

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

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

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

PWS

03-01-18

TAL @ CNN: ADMINISTRATION “SPLITS A PAIR” OF USDC RULINGS IN CAL. – Blown Out Again On DACA, But A Victory On “The Wall!”

http://www.cnn.com/2018/02/27/politics/daca-revocation-ruling/index.html

Court hands DACA recipients another victory

By: Catherine E. Shoichet and Tal Kopan, CNN

Young immigrants brought illegally to the United States as children have won another legal victory.

A federal judge in California ruled Monday that the government can’t revoke DACA recipients’ work permits or other protections without giving them notice and a chance to defend themselves.

The ruling in a California district court marks the third time a lower court has ruled against the administration’s handling of the Deferred Action for Childhood Arrivals program. But this case, unlike the others, is not about President Donald Trump’s September decision to end the program.

US District Judge Philip Gutierrez’s preliminary injunction Monday addressed another aspect: government decisions to revoke protections from individual DACA recipients.

The Obama-era DACA program protected young immigrants brought illegally to the United States from deportation if they met certain criteria, paid fees, passed background checks and didn’t commit serious crimes.

The Trump administration announced it was ending the program last year, arguing that it was unconstitutional. A series of recent lower court rulings have thwarted that effort, requiring the government to continue renewing permits under the program while legal challenges make their way through the courts. On Monday, the US Supreme Court said it was staying out of the dispute for now.

Meanwhile, activists across the country have increasingly criticized government decisions to end DACA protections in individual cases.

Monday’s ruling came in a class action lawsuit filed by the American Civil Liberties Union. The suit argues that the government had revoked protections from DACA recipients who hadn’t been convicted of serious crimes without giving them any opportunity to defend themselves.

An example: Officials revoked the work permit of one of the plaintiffs, Jesus Arreola, after he was arrested on suspicion of immigrant smuggling. An immigration judge later found that allegation wasn’t credible, according to the ACLU’s complaint. Arreola says he was an Uber and Lyft driver who had picked up passengers for a friend without any knowledge of their immigration status.

Attorneys representing the government argue that the plaintiffs had “misused the trust given to them with the administrative grace of DACA.”

The judge said the Department of Homeland Security must restore protections to the group of DACA recipients who had them revoked “without notice, a reasoned explanation, or any opportunity to respond.”

The ruling also temporarily blocks officials from revoking DACA protections from others without following a procedure “which includes, at a minimum, notice, a reasoned explanation, and an opportunity to be heard prior to termination.”

The Justice Department did not immediately respond to a request for comment about Monday’s ruling.

According to DHS, officials had revoked or terminated 2,139 individuals’ DACA protections over the lifetime of the program as of August 2017.

The ruling came the same day the Supreme Court said it would stay out of the dispute over the termination of DACA for now, leaving renewals under the program in place for at least months.

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

http://www.cnn.com/2018/02/27/politics/border-wall-ruling-curiel/index.html

Judge Curiel, once attacked by Trump, rules border wall can proceed

By Tal Kopan, CNN

(CNN)US District Judge Gonzalo Curiel has cleared one potential obstacle to President Donald Trump’s long-promised border wall, ruling Tuesday that the administration has the authority to waive a host of environmental laws and other regulations to begin construction.

Curiel’s 100-page order does not mean construction of the wall will begin immediately. Congress has yet to authorize or provide funding for any new wall to begin the project. Thus far, the Department of Homeland Security has built several prototypes in San Diego — which was the focus of the lawsuit Curiel rejected.

Still, the ruling is a win for the administration as it seeks to get money to build its wall, a centerpiece of Trump’s campaign.

Curiel’s ruling left little doubt that the DHS has broad authority to issue waivers — authorized in a cluster of laws passed by Congress in the mid 1990s to 2000s — to expedite the construction of border barriers and infrastructure. His lengthy ruling went point-by-point through the challenges to DHS’ authority brought by environmental groups and the state of California and rejected all of them.

Judge criticized by Trump will hear case on border wall

Curiel was famously the target of Trump’s ire when he presided over a lawsuit against Trump University, which was ultimately settled after Trump won the White House.

Trump drew fierce criticism in June 2016 when he said that Curiel, who was born in Indiana, was biased against him due to his Mexican heritage.

In his ruling Tuesday, Curiel noted that the border wall is a highly contentious issue under this administration but said he did not factor that into his decision.

“The court is aware that the subject of these lawsuits, border barriers, is currently the subject of heated political debate in and between the United States and the Republic of Mexico as to the need, efficacy and the source of funding for such barriers,” Curiel wrote. “In its review of this case, the Court cannot and does not consider whether underlying decisions to construct the border barriers are politically wise or prudent.”

Not just Trump’s idea: A short history on famous walls and the environment

The groups had challenged DHS’ move to expedite construction of the prototypes and replacement fencing in San Diego on a number of grounds. The collection of lawsuits from the environmental advocacy organizations and the state of California argued that the Trump administration’s waiver wasn’t allowed by the law that created the overarching authority and that the authority itself violated the Constitution.

Curiel rejected each argument, saying the law and the nature of the border clearly give the DHS broad authority to build border barriers.

“Both Congress and the Executive share responsibilities in protecting the country from terrorists and contraband illegally entering at the borders. Border barriers, roads, and detection equipment help provide a measure of deterrence against illegal entries,” Curiel wrote. “With section 102, Congress delegated to its executive counterpart, the responsibility to construct border barriers as needed in areas of high illegal entry to detect and deter illegal entries. In an increasingly complex and changing world, this delegation avoids the need for Congress to pass a new law to authorize the construction of every border project.”

In addition to pro-immigration and civil liberties groups, environmental groups have opposed the construction of Trump’s border wall on the grounds that it would disturb sensitive wildlife and ecosystems.

One section of Trump’s proposed wall in Texas would run through a wildlife preserve.

The Justice Department, meanwhile, hailed the ruling.

“Border security is paramount to stemming the flow of illegal immigration that contributes to rising violent crime and to the drug crisis, and undermines national security,” said spokesman Devin O’Malley. “We are pleased DHS can continue this important work vital to our nation’s interests.”

One of the groups challenging the wall said it intended to appeal the decision.

“We intend to appeal this disappointing ruling, which would allow Trump to shrug off crucial environmental laws that protect people and wildlife,” said Brian Segee, a senior attorney at the Center for Biological Diversity. “The Trump administration has completely overreached its authority in its rush to build this destructive, senseless wall.”

California Attorney General Xavier Becerra said in a statement that he was considering his options.

“We remain unwavering in our belief that the Trump Administration is ignoring laws it doesn’t like in order to resuscitate a campaign talking point of building a wall on our southern border,” Becerra said. “We will evaluate all of our options and are prepared to do what is necessary to protect our people, our values, and our economy from federal overreach. A medieval wall along the US-Mexico border simply does not belong in the 21st century.”

The waiver authority to build barriers along the border has been used a number of times dating back to the George W. Bush administration, and it has been upheld by the courts every time it has been challenged.

Trump is scheduled to visit the border wall prototypes next month.

CNN’s Sara Sidner and Devan Cole contributed to this report.

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

I guess even Gonzo can’t lose ’em all. But, he certainly hasn’t taken his last beating on his counterproductive, ill-conceived, and wasteful “War on Dreamers.”

PWS

02-28-18

SPLINTERED SUPREMES PROVISIONALLY OK “NEW AMERICAN GULAG” — Trump/Sessions Successfully Fight To Preserve Obama Legacy Of Never-Ending “Civil” Immigration Detention — Case Remanded To Lower Court, But Alito & Fellow GOP Justices Show Scant Concern For Human (Non-Economic) Rights & Freedom Under Constitution!

Jennings v. Rodriguez, O2-27-18

MAJORITY: Chief Justice Roberts, Justices Kennedy, Thomas, Alito, Gorsuch

CONCURRING OPINION: Justice Thomas, joined by Justice Gorsuch

DISSENTING OPINION: Justice Breyer, joined by Justices Ginsburg, Sotomayor

NOT PARTICIPATING: Justice Kagan

HERE’S A COPY OF THE COURT’S FULL DECISION:

15-1204_f29g

ANALYSIS BY ERIC LEVITZ @ NEW YORK MAGAZINE:

“For much of his presidency, Donald Trump has appeared more committed to nullifying his predecessor’s legacy than to any affirmative political principle. The president campaigned on a promise to repeal Obamacare and expand access to affordable health insurance — but when these goals came into conflict, he opted for the former. Trump argued vociferously that rogue regimes must be blocked from acquiring nuclear weapons — then “decertified” an Obama-era nuclear agreement that did just that. He claimed to believe in regulatory policies that protect “clean air and clean water,” then rolled back Obama-era rules aimed at that objective. Trump praised Janet Yellen’s economic management — but still took the precedent-defying step of refusing to grant the Obama-appointed Federal Reserve chair a second term.

Nevertheless, for all his policy nihilism, the president can still occasionally put substance over spite, and admit that on this or that specific issue, Barack Obama actually had a point. Thus, on Tuesday the Trump administration celebrated the preservation of one piece of Obama’s legacy.

In 2014, a federal district court ruled that immigrants detained while awaiting deportation proceedings were entitled to periodic bond hearings. The lead plaintiff in the case was a legal permanent resident of the United States, Alejandro Rodriguez, who was arrested as a teenager for joyriding and misdemeanor drug possession – and then jailed for three years, without ever receiving a bond hearing, as his lawyers (successfully) contested his deportation. The federal judge ruled that Rodriguez had a legal right to request to await trial outside of a detention facility. The Obama administration disagreed, arguing that the federal government has the authority to decide whether any individual immigrant should be afforded that right – or whether he or she is simply too dangerous for such due process – even if the person in question is a legal permanent resident or asylum-seeker.

Upon his election, Trump set aside his differences with Obama, and continued his predecessor’s appeal. Even when the Ninth Circuit upheld the lower court’s ruling, Jeff Sessions & Co. persisted in their defense of the Obama Justice Department’s position.

And on Tuesday, the Supreme Court’s conservative majority sided with the government in a narrow ruling: The justices did not rule that detained immigrants have no right to bond hearings under the Constitution; rather, they merely ruled that immigrants had no such rights under federal immigration law. As the New York Times explains:

The Ninth Circuit had ruled that bond hearings are required after six months to determine whether detainees who do not pose flight risks or a danger to public safety may be released while their cases proceed. The court based its ruling on an interpretation of the federal immigration laws, not the Constitution, though it said its reading was required to avoid constitutional difficulties.

Justice Samuel A. Alito Jr., writing for the majority on Tuesday, said that this interpretive approach, called “constitutional avoidance,” was unavailable here, as the words of the immigration laws were plain. “The meaning of the relevant statutory provisions is clear — and clearly contrary to the decision of the court of appeals,” Justice Alito wrote.
This ruling will send the case back to the Ninth Circuit, which will have the opportunity to assess whether the Constitution requires bond hearings for detained immigrants.

Three of the court’s liberals opposed the decision, while Elena Kagan recused herself (due to relevant work she had performed as Obama’s solicitor general). In an impassioned dissent, Justice Stephen Breyer insisted that the court should have reached a determination on the underlying Constitutional question – and ruled that all human beings in the United States are entitled to our founding document’s basic protections.

“[W]ould the Constitution leave the Government free to starve, beat, or lash those held within our boundaries?” the Justice asked. “If not, then, whatever the [legal] fiction, how can the Constitution authorize the Government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States?”

“We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have ‘certain unalienable Rights,’ and that among them is the right to ‘Liberty,’” Breyer wrote.

But thanks to the bipartisan efforts of the patriots in our Justice Department, the Trump administration will remain free, for the moment, to indefinitely imprison any legal immigrants and asylum-seekers it wishes to deport.

And Trump wishes to deport quite a few — although he’ll need to get much more aggressive on that front, if he wishes to preserve the pace of deportations set by his predecessor.

But, as Tuesday’s ruling demonstrated, with enough will and bipartisan cooperation, there’s little the American government cannot do.”

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

HERE’S WHAT JUSTICE ALITO, JUSTICE THOMAS & THEIR BUDDIES REALLY ARE SAYING BEYOND THE LEGAL GOBBLEDYGOOK:

The plaintiffs are neither corporations nor guns. They are mere human beings. Therefore, they are entitled to no Constitutional protections that we care to enforce.

FROM JUSTICE BREYER’S DISSENT:

The relevant constitutional language, purposes, history, traditions, context, and case law, taken together, make it likely that, where confinement of the noncitizens before us is prolonged (presumptively longer than six months), bail proceedings are constitutionally required. Given this serious constitutional problem, I would interpret the statutory provisions before us as authorizing bail. Their language permits that reading, it furthers their basic purposes, and it is consistent with the history, tradition, and constitutional values associated with bail proceedings. I believe that those bail proceedings should take place in accordance with customary rules of procedure and burdens of proof rather than the special rules that the Ninth Cir cuit imposed.

The bail questions before us are technical but at heart they are simple. We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.” We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbi trary deprivation. And we need just keep in mind the fact that, since Blackstone’s time and long before, liberty has included the right of a confined person to seek release on bail. It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right. I would find it far more difficult, indeed, I would find it alarming, to believe that Congress wrote these statutory words in order to put thousands of individuals at risk of lengthy confinement all within the United States but all without hope of bail. I would read the statutory words as consistent with, indeed as requiring protection of, the basic right to seek bail.
Because the majority does not do so, with respect, I dissent.

ONE POINT THAT ALL EIGHT JUSTICES AGREED ON:

The 9th Circuit was without authority to rewrite the statute to require bond hearings at 6 month intervals with the DHS bearing the burden of proof on continuing detention.

PWS

02-27-18

WELCOME TO BIA-LAND! – Where You Might Be Better Off Committing A Felony Than Concealing It – Matter of Mendez, 27 I&N Dec. 219 (BIA 2018)

3916

Matter of Mendez, 27 I&N Dec. 219 (BIA 2018)

BIA HEADNOTE:

“Misprision of felony in violation of 18 U.S.C. § 4 (2006) is categorically a crime involving moral turpitude. Matter of Robles, 24 I&N Dec. 22 (BIA 2006), reaffirmed. Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), followed in jurisdiction only.”

PANEL: BIA APPELLATE IMMIGRATION JUDGES PAULEY, GUENDELSBERGER, and MALPHRUS

OPINION BY: Judge Roger A. Pauley

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

Pretty straight forward. There was a so-called “Circuit split.” Given alternative choices, the BIA almost always chooses the interpretation most favorable to the DHS and least favorable to the respondent.

Hence, the respondent loses, the BIA doesn’t “rock the boat,” the Office of Immigration Litigation can defend the most restrictive position in the Courts of Appeals and, if necessary, before the Supremes, Jeff Sessions remains happy, and BIA judges retain their jobs.

The only losers: Due Process, fairness, and the respondent. But, who cares about them anyway? It’s all about maximizing removals.

PWS

02-27-18

“GO POUND SAND” SUPREMES TELL TRUMP & SESSIONS ON DACA – HIGH COURT STIFFARMS DOJ’S FRIVOLOUS TRY TO END RUN LEGAL PROCESS!

https://www.cnn.com/2018/02/26/politics/daca-supreme-court/index.html

Ariane de Vogue and Tal Kopan report for CNN”

“Washington (CNN)The Supreme Court said on Monday that it will stay out of the dispute concerning the Deferred Action for Childhood Arrivals program for now, meaning the Trump administration may not be able to end the program March 5 as planned.

The move will also lessen pressure on Congress to act on a permanent solution for DACA and its roughly 700,000 participants — undocumented immigrants who came to the US as children.

Lawmakers had often cited the March 5 deadline as their own deadline for action. But the Senate failed to advance any bill during a debate earlier this month, and no bipartisan measure has emerged since.

Originally, the Trump administration had terminated DACA but allowed a six-month grace period for anyone with status expiring in that window to renew. After that date, March 5, any DACA recipient whose status expired would no longer be able to receive protections.

Monday’s action by the court, submitted without comment from the justices, is not a ruling on the merits of the DACA program or the Trump administration’s effort to end it.

At issue is a ruling by federal District Judge William Alsup of the US District Court for the Northern District of California, who blocked the plan to end DACA and held that the Trump administration must resume accepting renewal applications. The action means the case will continue going through the lower courts.

Alsup said a nationwide injunction was “appropriate” because “our country has a strong interest in the uniform application of immigration law and policy.”

“Plaintiffs have established injury that reaches beyond the geographical bounds of the Northern District of California. The problem affects every state and territory of the United States,” he wrote.

The 9th US Circuit Court of Appeals has generally allowed nationwide injunctions against the Trump administration actions from lower court judges under this President to stand, meaning the DACA program could be spared a year or more until the Supreme Court could take up the case in next year’s term, given the likely realities of the calendar.

Justice Department spokesman Devin O’Malley said the administration’s appeal to the Supreme Court was an uphill climb, given it came before the 9th Circuit ruled.

“While we were hopeful for a different outcome, the Supreme Court very rarely grants certiorari before judgment, though in our view, it was warranted for the extraordinary injunction requiring the Department of Homeland Security to maintain DACA,” O’Malley said. “We will continue to defend DHS’s lawful authority to wind down DACA in an orderly manner.”

University of Texas professor law and CNN legal analyst Stephen Vladeck said justices normally don’t weigh in at this stage.

“The justices have not granted such a request since 2004, but the government claimed that the urgency of settling the legal status of DACA, and the potential for nationwide confusion, justified such an extraordinary measure,” Vladeck said.”

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

Good news for America on a number of fronts:

DACA immigrants get to keep their status and work authorization for now. While the Administration claimed (disingenuously) that removal of DACA recipients would not be a “priority,” loss of DACA status would mean loss of work authorization (and therefore jobs) for many and loss of in-state tuition eligibility for college for others. Thus, they would have been driven “into the underground.” Honest employers who insisted on following work authorization laws would have been penalized by loss of important, talented workers. Meanwhile, unscrupulous employers willing to overlook lack of work authorization or pay “under the table” at substandard wages would have been empowered by the Administration’s bone-headed actions to exploit Dreamers and U.S. workers alike.
Supremes rebuffed the arrogant Trump/Sessions attitude of entitlement. Whatever their disingenuous explanations might be today, in attempting to circumvent the Courts of Appeals to the Supremes, the Administration basically was touting that the GOP had “bought and paid for” five seats on the Supremes and that they expected their “wholly-owned Justices,” including of course the recently appointed Justice Gorsuch, to deliver on their demand for unprecedented special treatment. By forcing the Administration to follow the rules like everyone else, at least for now, the Supremes maintained some degree of dignity and judicial independence in the context of an Administration that publicly holds itself above the law and states that the only acceptable role of Federal Judges (particularly GOP appointees) is to “rubber stamp” Administration positions.
Litigation in the Courts of Appeals will further expose the absurdity of Session’s “legal position” on DACA. In the DACA litigation, the DOJ is incredibly asking the Federal Courts to invalidate the Executive’s own legal authority to exercise prosecutorial discretion on a consistent and disciplined basis. While courts have acknowledged that there are likely ways in which the Administration could go about terminating DACA, claiming that it is “illegal” isn’t one of them. Session’s bogus claim that an Administration doesn’t have authority to exercise prosecutorial discretion on a widespread basis is both disingenuous and absurd on its face. Obviously, this Administration has already chosen to exercise lots of prosecutorial discretion not to enforce environmental, health care, civil rights, ethics, and other “laws on the books” when it suited their purposes.
If the lower court rulings stand, Trump will have difficulty coming up with a “rational reason” to terminate DACA “on the merits.” Trump himself, as well as other Administration officials and politicos from both parties have widely and publicly praised DACA youth and their contributions to the United States. There is neither a legal nor a rational basis for terminating DACA. While Trump & Sessions might well attempt to do so, those attempts are also likely to be tied up in the Federal Courts for a long time. DACA created “settled expectations” on the part of the recipients, their employers, their schools, and even their U.S. families of continuing ability to, at a minimum, remain, work, and study in the United States, assuming continued “good behavior.” In my long experience in Government, Federal Courts have more often than not been anxious to find ways to protect such “settled expectations.”
Congress was going to “punt” on DACA anyway. I detected little if any interest on the part of GOP “leadership” in the House and Senate to fix DACA on a temporary or permanent basis for now. It’s going to take “regime change” — eventually replacing recalcitrant GOP legislators with Democrats more interested in governing in the public interest, including solving the Dreamer issue on a long-term basis (without otherwise damaging our permanent immigration system or further enabling lawless behavior by DHS). That’s going to take time, just like the litigation. In this case, time is the Dreamer’s and the bulk of America’s friend.

PWS

02-26-18

CALLING ALL FORMER IMMIGRATION JUDGES & BIA APPELLATE JUDGES: DUE PROCESS FOR CHILDREN IS ON THE LINE: Join In An Amicus Brief Supporting A Right To Counsel For Children In Immigration Court — Motion For Rehearing En Banc in C.J.L.G. v. Sessions! —Judges Gossart, Klein, Rosenberg, & I Are Already On Board! — Please Join Us!

Hi Judges Klein, Schmidt, Rosenberg, and Gossart:

Hope all of you are well. Thanks so much for your help with an amicus brief in support of rehearing en banc in CJLG v. Sessions, our children’s right to appointed counsel case. I’m copying in Buzz Frahn and his team from Simpson Thacher, who have agreed to draft the amicus brief on your behalves. We’ve given Buzz the previous briefs submitted in JEFM, and he and his team are getting started.

I think all of you can take it from here. It would be great if we could get your help in reaching out to other former IJs or BIA members who may be interested in participating as amici in our case.

Please let me know if you have any questions, or if I can do anything else to help. We’ll be in touch with the Simpson Thacher folks regarding some issues that might be worth highlighting in the amicus, and I’m sure they’d welcome feedback from all of you as well. Thanks again and have a great weekend!

Stephen

Stephen B. Kang
Pronouns: he/him/his
Detention Attorney
ACLU Immigrants’ Rights Project
39 Drumm Street, San Francisco, CA 94111
415.343.0783 | skang@aclu.org
*********************

In C.J.L.G. v. Sessions, a 9th Circuit 3-Judge Panel found that: 1) the child respondent was denied due process at his Immigration Court hearing; 2) he suffered past persecution; 3) but there was no “prejudice” because he couldn’t establish “nexus.” Therefore, the panel rejected his claim that he had a right to appointed counsel.

The “no prejudice” finding is basically ludicrous! “Nexus” is such a complex and convoluted legal concept that judges at all levels get it wrong with regularity. How do we know that this child couldn’t show “nexus” when he and his mother didn’t have any idea of the legal and evidentiary standards they were required to meet?

On Friday, I attended a FBA Immigration/Asylum program at NYU Law. It was clear from the outstanding panel on Northern Triangle asylum that claims very similar, if not identical, to CJLG’s are being granted in many Immigration Courts.

But, it requires many hours of client interviews, extensive trial preparation, and the knowledge and ability to present claims often under alternative legal theories. No unrepresented child has a fair chance to make such a winning presentation on asylum or Convention Against Torture Withholding in Immigration Court, even though there are “life or death” stakes.

Here’s a link to my previous blog on C.J.L.G.:

https://wp.me/p8eeJm-22V

We would love to have your support in speaking out against this injustice and systemic denial of due process to our most vulnerable.

Please contact Judges Gossart, Klein, Rosenberg, or me if you wish to join our effort.

Best wishes and many thanks for considering this request.

PWS

02-25-18

CRISTIAN FARIAS @ NEW YORK MAGGIE – THE HISTORY OF PROSECUTORIAL DISCRETION IN IMMIGRATION GOING ALL THE WAY BACK TO THE “BERNSEN MEMO” – WHY, CONTRARY TO SESSIONS & THE RESTRICTIONISTS, IT IS A SOUND LEGAL CONCEPT – AND WHY THE SUPREMES SHOULD STAY OUT OF THE DACA ISSUE IN THE LOWER COURTS! – PLUS BONUS TRIVIA! – “Who REALLY wrote that four decades old memo?

http://nymag.com/daily/intelligencer/2018/02/scotus-would-be-crazy-to-jump-into-the-daca-dispute.html

Cristian writes:

“The earliest, highest-profile critic of granting an executive reprieve to Dreamers was none other than Justice Antonin Scalia. The plight of young immigrants brought to the United States as children was not something the Supreme Court was concerned with in 2012, but the late justice somehow felt the need to protest, in open court, President Obama’s then weeks-old decision to not deport them for humanitarian reasons. “The president has said that the new program is, quote, the right thing to do, close quote, in light of Congress’ failure to pass the administration’s proposed revision of the immigration laws,” he said as he read from a summary of his partial dissent in Arizona v. United States. That case and decision had nothing to do with Dreamers.

Maybe Scalia’s real qualm was with the sitting president and not the recipients of the Deferred Action for Childhood Arrivals program, better known as DACA. But his broader point, which a Supreme Court majority rejected, was that states should have leeway in enforcing federal immigration laws, since they — and not undocumented immigrants — face the “human realities” of a broken immigration system. The citizens of border states like Arizona “feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy,” Scalia complained. Somewhere, a future President Trump may have been taking notes.

More than five years since that screed, the Supreme Court could soon get a chance to judge the propriety, if not the legality, of Trump’s decision last September to pull the plug on DACA. A federal judge in California in January ordered the reinstatement of the program, reasoning that its rescission rested on a “flawed legal premise” — namely, Jeff Sessions’s paper-thin conclusion that DACA was illegal the moment it was conceived. The judge also rejected as “spin” and “post-hoc rationalization” the Trump administration’s contention that DACA was vulnerable to a legal challenge by Texas and other states, which had threatened Sessions with a lawsuit if he didn’t kill the initiative outright. “The agency action was not in accordance with law because it was based on the flawed legal premise that the agency lacked authority to implement DACA,” wrote the judge, William Alsup, in a ruling that effectively brought DACA back from the dead. Days later, the administration began accepting renewal applications as if the rollback had never happened.

Legal scholars weren’t impressed with the ruling. And Sessions, not one to give up on Trump’s anti-immigrant crusade, then took the “rare step” of appealing Alsup’s decision directly to the Supreme Court — and why not? The Ninth Circuit, Trump’s least favorite appeals court, is unruly, liberal, and anti-Trump, anyway; leapfrogging it seemed the smart thing to do. What’s more, Sessions wanted the justices to act expeditiously — his solicitor general filed an additional request to decide the case before the end of June. Not doing so, he suggested, would be the same as blessing “indefinitely an ongoing violation of federal law being committed by nearly 700,000 aliens.” So much for Trump’s wish to treat Dreamers “with heart.” There was only one problem: The Supreme Court rarely, if ever, lets anyone skip over the regular appeals process. And if Sessions is in such a hurry, why didn’t the administration seek to block Alsup’s ruling rather than comply with it? Last Friday, a coalition that includes the University of California, several states, a local chapter of the SEIU, and a number of Dreamers told the Supreme Court to reject the Trump administration’s request to hear the case. The DACA mess, this alliance broadly contended, is Trump’s and Congress’s to own, and the justices shouldn’t be the ones fixing it, at least not with the urgency Sessions is demanding.

. . . .

The principle of prosecutorial discretion, which is what holds DACA together, was never once discussed by Sessions when he announced the wind-down of DACA. He didn’t even try. Prosecutorial discretion wasn’t some novelty that Napolitano came up with at the time, let alone a quirk of immigration law. In a path-breaking memorandum written some 40 years ago, Sam Bernsen, the general counsel of the now-defunct Immigration and Naturalization Service, advised the agency’s commissioner that the “ultimate source for the exercise of prosecutorial discretion” lies with the inherent powers of the presidency. “Under Article II, Section 1 of the Constitution, the executive power is vested in the President,” Bernsen wrote in what is believed to be the first in a long string of government memos justifying prosecutorial discretion in the immigration realm. “Article II, Section 3, states that the President ‘shall take care that the laws be faithfully executed.’” Ironically, conservatives would later seize on this “take care” language to argue breathlessly that Obama’s immigration actions were an affront to the constitutional text, but no judge took that argument seriously.

Far and wide, executive officers enjoy similar discretion to enforce the law. From the president down to a lowly street cop, every law enforcer, state or federal, exercises some form of prosecutorial discretion over the laws they’re entrusted to oversee. It’s the reason you don’t always get ticketed for jaywalking or pulled over for doing 65 on a 55, even in instances where you happen to do those things in full view of the police: The government has ample discretion to not go after you if it feels you’re a low-priority lawbreaker. Maybe the 75-miles-per-hour driver is the bigger fish. Whichever the case, the decision is, by and large, unchallengeable. “Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all,” wrote Justice Anthony Kennedy in the same immigration ruling that Scalia assailed in 2012. “Discretion in the enforcement of immigration law embraces immediate human concerns,” he added.

Kirstjen Nielsen, the new DHS secretary, and Trump himself have all but conceded the point in recent weeks. In an interview with CBS’s John Dickerson, Nielsen said that it’s “not the policy of DHS” to go after Dreamers who are DACA recipients, even if the current legislative talks fail and the program isn’t renewed. “It’s not going to be a priority of the Immigration and Customs Enforcement to prioritize their removal,” Nielsen clarified, directly contradicting the Department of Justice’s position on DACA before the Supreme Court. (Dreamers and immigration advocates know better than to trust Nielsen’s assurances.) Asked last month if he might extend the arbitrary March 5 end date of the DACA rollback process — which is no longer the end date as a result of Judge Alsup’s ruling — Trump spoke as if he never truly believed, like Sessions did, that deferred action was unlawful: “I certainly have the right to do that if I want.”

In this climate, and with Trump still fielding immigration offers as Congress faces yet another deadline to fund the government, the Supreme Court would be crazy to jump into the DACA controversy. “I think for the Supreme Court to reach down to a district court decision and not allow the normal appellate process to proceed would necessarily, under the circumstances, involve or indicate that the Supreme Court is signaling its involvement in a deeply political matter,” Napolitano told me. Scalia may have felt comfortable criticizing policy choices from the bench, but that doesn’t mean Chief Justice John Roberts and his colleagues have to take the bait. For their own peace of mind and that of Dreamers, the Court is better off staying as far away as possible, and letting Trump take care of the laws that give him broad authority to spare young undocumented immigrants if he really wants to.”

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

Read the rest of Cristian’s analysis, including his detailed interview with former DHS Secretary Janet Napolitano, now President of the University of California System and a plaintiff in the District Court case, over at New York at the above link.

SPECIAL BONUS:

From the “archives” here’s a copy of the famous “Bernsen Memo” of July 15, 1976:

Bernsen Memo service-exercise-pd

YOUR TOSSUP IMMIGRATION TRIVIA QUESTION OF THE DAY:

Who actually wrote the “Bernsen Memo?”

(Hint: Look at the bottom of the last page.)

Category: 9th Circuit

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!

HON. JEFFREY CHASE RETURNS WITH MORE ANALYSIS OF RETIRED JUDGES’ AMICUS BRIEF IN C.J.L.G. V. SESSIONS

SUPREMES AGREE TO TAKE ANOTHER DETENTION CASE — This One Involves The “When Released” Issue For Mandatory Detention – Nielsen v. Preap, 9th Cir.

Nielsen v. Preap

SCOTUSblog Coverage

FEDERAL DISTRICT COURT’S ORDER FREEING FLORICEL LIBORIO SHOULD SERVE AS A LESSON TO ALL IMMIGRATION JUDGES ACROSS THE U.S.

Federal District Court’s Order Freeing Floricel Liborio Should Serve as a Lesson to All Immigration Judges Across the U.S.

SANTA CLARA OFFICE

SAN FRANCISCO OFFICE

STEVE VLADECK @ JUST SECURITY: 9th Circuit Expedited Removal Case Might Further The “Dredscottification” Of Migrants — Are They Becoming “Non-Persons” Under Our Constitution? – What’s The Ultimate Cost To Us Of “Selective Application” Of Constitutional Protections?

PETER MARKOWITZ IN THE NYT: CA Can Thank The Late Justice Scalia For Likely Win On Sanctuary Case!

OUT OF SIGHT, OUT OF MIND: It Didn’t Take This GOP Controlled Congress Long To Forget About Saving The “Dreamers!”

TAL @ CNN: ADMINISTRATION “SPLITS A PAIR” OF USDC RULINGS IN CAL. – Blown Out Again On DACA, But A Victory On “The Wall!”

Judge Curiel, once attacked by Trump, rules border wall can proceed

By Tal Kopan, CNN

WELCOME TO BIA-LAND! – Where You Might Be Better Off Committing A Felony Than Concealing It – Matter of Mendez, 27 I&N Dec. 219 (BIA 2018)

“GO POUND SAND” SUPREMES TELL TRUMP & SESSIONS ON DACA – HIGH COURT STIFFARMS DOJ’S FRIVOLOUS TRY TO END RUN LEGAL PROCESS!

SPECIAL BONUS:

YOUR TOSSUP IMMIGRATION TRIVIA QUESTION OF THE DAY:

Who actually wrote the “Bernsen Memo?”

Related posts:

Related posts:

Harrison J. (Buzz) Frahn, Partner

Lee Brand, Associate

HERE’S THE TABLE OF CONTENTS:

HERE’S THE “CAST OF CHARACTERS” & THE SUMMARY OF ARGUMENT:

HERE’S A LINK TO THE COMPLETE BRIEF FOR YOUR ENTERTAINMENT, EDUCATION, AND READING ENJOYMENT:

DUE PROCESS FOREVER!

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Nielsen v. Preap

SCOTUSblog Coverage

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FEDERAL DISTRICT COURT’S ORDER FREEING FLORICEL LIBORIO SHOULD SERVE AS A LESSON TO ALL IMMIGRATION JUDGES ACROSS THE U.S.

Federal District Court’s Order Freeing Floricel Liborio Should Serve as a Lesson to All Immigration Judges Across the U.S.

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Judge Curiel, once attacked by Trump, rules border wall can proceed

By Tal Kopan, CNN

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SPECIAL BONUS:

YOUR TOSSUP IMMIGRATION TRIVIA QUESTION OF THE DAY:

Who actually wrote the “Bernsen Memo?”

Related posts: