9th Circuit – Page 24 – immigrationcourtside.com

9th Cir. En Banc — After 80 Pages, 9-2 Majority Finds Mexican Gov. “Unwilling Or Unable To Prevent” Persecution Of Gays — Dissent Bemoans “Usurpation” Of BIA’s Fact-Finding Authority — BRINGAS-RODRIGUEZ V. SESSIONS

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/08/13-72682.pdf

Judge Wardlaw for the majority:

“In Castro-Martinez, we also failed to consider the difference between a country’s enactment of remedial laws and the eradication of persecutory practices, often long ingrained in a country’s culture. Rejecting Castro’s claim that, in Mexico, a systematic pattern or practice of persecution against homosexuals remained, we found Castro’s evidence unpersuasive “in light of recent country reports,” which showed that the “Mexican government’s efforts to prevent violence and discrimination against homosexuals . . . ha[d] increased in recent years.” Castro- Martinez, 674 F.3d at 1082.

Mexico is to be lauded for its efforts. But it is well recognized that a country’s laws are not always reflective of actual country conditions. It is not unusual that a country’s “de jure commitments to LGBTI protection do not align with the de facto reality of whether the State is able and willing to provide protection.” Brief for UNHCR as Amicus Curiae at 4. And we have recently recognized that Mexico has experienced “an increase in violence against gay, lesbian, and transgender individuals during the years in which greater legal protections have been extended to these communities.” Avendano-Hernandez v. Lynch, 800 F.3d 1072, 1081 (9th Cir. 2015) (emphasis in original).

Moreover, the anti-discrimination efforts discussed in Castro-Martinez seem to have been made by the national government, and thus do not necessarily reveal anything about the practices within state or municipal jurisdictions. See Madrigal v. Holder, 716 F.3d 499, 507 (9th Cir. 2013) (noting that while Mexico’s national government was willing to control the drug cartel that attacked the petitioner, it was not necessarily able to do so, in part because state and local officials were involved with drug traffickers).”

Writing for the dissent, Judge Bea (who claims to be the only U.S. Circuit Judge to actually have been the subject of deportation proceedings), joined by Judge O’Scannlain:

“I respectfully dissent from the majority opinion because it usurps the power of the Board of Immigration Appeals (BIA) to determine facts. It does this by reciting, but ultimately departing, from the “substantial evidence” standard which states that agency “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (emphasis added).”

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The Administration apparently believes that cases like this are going to be resolved on an “assembly line” operation with U.S. Immigration Judges sitting in “shifts” in detention centers from 6 AM until 10 PM.

While notable for its potential precedential effect, this case is not particularly unusual in terms of the difficult factual and legal issues that arise daily in U.S. Immigration Court in asylum cases coming from countries “south of our border.” This happened to be Mexico, but LGBT cases involving individuals from the Northern Triangle are quite common, even in jurisdictions like the Arlington Immigration Court.

I note that the amicus views of the UNHCR fare much better in the majority’s decision than they typically do these days at the BIA. For example, in Matter of M-E-V-G-, 26 I&N Dec. 227, 248 (BIA 2014), the BIA summarily “blew off” the views of the UNHCR on the issue of “particular social group.”

It’s also interesting that notwithstanding the dissent, the BIA actually lacks de novo fact finding authority of its own. Following a regulation change during the “Ashcroft era,” that authority belongs to the Immigration Judge with review by the BIA for “clear error.”

PWS

03/14/17

THE HILL: Nolan Rappaport Takes Apart Hawaii’s Case Against Travel Ban

http://thehill.com/blogs/pundits-blog/immigration/323948-hawaiis-case-against-trumps-travel-ban-debunked

After discussing and dismissing the four bases cited by Hawaii, Nolan concludes:

“Hawaii’s four claims against the president’s travel ban are thus unfounded and the state is going to fail in its attempt to stop the travel ban.”

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Read Nolan’s full article with citations in The Hill at the link. The case is State of Hawaii v. Trump, USDC, HI.

PWS

03/14/17

EAST BAY EXPRESS: Are U.S. Immigration Court Hearings For Unrepresented Individuals Unconstitutional? Darwin BondGrahm Seems To Think So — Perhaps Darwin Is Right!

http://www.eastbayexpress.com/oakland/inside-immigration-court-are-deportation-hearings-in-the-bay-area-unconstitutional/Content?oid=5642504

Darwin BondGraham reports in a profile of justice at the U.S. Immigration Court in San Francisco, CA:

“Ilyce Shugall can rattle off a similarly long list of due-process problems. The directing attorney of Community Legal Services in East Palo Alto, Shugall is one of a couple dozen pro-bono lawyers who try to provide counsel to a fraction of the people facing deportation in San Francisco.

“Procedural protections don’t really exist, despite the consequences of banishment,” she said at a recent legal symposium held by the Thelton E. Henderson Center for Social Justice in Berkeley. “There’s no right to an attorney, but the government is represented in every case by an ICE attorney.”

As Shugall sees it, the ICE attorney also has a kind of home-field advantage: Being in the same courtrooms day-in, day-out, allows an attorney to establish better rapport with judges.

And the judges and ICE attorneys all have the same boss: The President of the United States.

The immigration judges are employees of the Executive Office for Immigration Review, which is overseen by the attorney general — they’re not members of the independent judicial branch of government. The ICE attorneys work for the Department of Homeland Security.

Over her career practicing immigration law, Shugall said she’s seen ICE attorneys frequently miss filing deadlines without consequences; file motions on the day of a hearing, preventing review by the defense; and withhold records in a case from the person being targeted for deportation, thereby forcing them to file a burdensome Freedom of Information Act request to get the documents.

She’s also seen extended detention result, countless times, in what Mr. Gonzales apparently did in Judge Murry’s courtroom this past December: Give up on his case and beg to be deported, just to get escape the misery of jail.”

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The full article, which I found through ImmigrationProf Blog, is well worth a read.

I think that the Administration’s ill-advised “pedal to the metal” detention and removal plans, combined with elimination of funding for various Government sponsored outreach, information, and self-help programs is very likely to bring the due process weaknesses of the current U.S. Immigration Court system to a head.

I would not be surprised if a U.S. District Judge somewhere issues a TRO preventing the Government from proceeding in certain types of cases unless the individual is represented. After all, the Government was recently blocked in the 9th Circuit from proceeding against incompetent individuals without establishing some viable system for determining competency and representing those determined to be incompetent.

I also predict that the Administration’s ill-conceived plan to “jack up” detention, particularly by using private facilities which have been determined to have a greater incidence of problematic conditions, is likely to result in major “conditions of detention” litigation and, perhaps, further intervention by the Article III Courts.

Rather than studying the situation and looking for ways to fix our broken immigration justice system so that individuals receive the due process to which they are entitled, the Trump Administration seems determined to make matters worse by turning up the volume. That’s likely to have unhappy consequences not only for the individuals, but also for the Administration.

PWS

03/13/17

THE HILL: Nolan Rappaport Says New Trump Travel Ban A Slam Dunk Winner In Court! Get Link Here!

http://thehill.com/blogs/pundits-blog/immigration/322720-trumps-travel-ban-legally-sound-defensible-all-the-way-to-the

Nolan writes:

“The Trump administration released Monday a revised version of its immigration Executive Order to address the concerns raised in an appeals court decision, but those criticisms were always fundamentally irrational and not based in the text of the Order.”

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Read Nolan’s complete article in The Hill at link.

As I indicated in my posts yesterday, the new travel ban appears to me just as bogus as the first one. Rather than being designed to solve a real national security problem, it is fear-mongering designed primarily to rev up public opinion, particularly among Trump’s base, against Muslims and refugees, neither of which pose a significant threat to the U.S. at present.

I noted that the Post “Fact-Checker” has already awarded “Three Pinocchios” to the misleading statistics that Secretary Kelly and AG Sessions cited in their “staged dialogue” asking the President to reimpose the travel ban. And, this is from a President and an Administration that already have pretty much zero credibility.

That being said, I don’t necessarily disagree with Nolan’s bottom line that Trump might well win this one if it even gets to the Supremes. This time, following the advice of Government litigators, he has applied the ban prospectively only to those foreign nationals overseas who have not previously been admitted or already documented to enter the U.S. He’s also eliminated the overt mention of religion.

Given that the standard for overseas visa denials is a “facially legitimate and bona fide reason,” the Administration might well be home free. Although the stated rationale might not stand up to a rigorous examination, it is unlikely that the Supremes, or even most lower Federal Courts, view engaging in a testing of the factual basis for this type of order affecting individuals overseas as something that can properly be adjudicated by Article III judges.

See my previous posts here:

http://wp.me/p8eeJm-ry

http://wp.me/p8eeJm-rH

PWS

03/07/17

Here Are All The Official Documents On The “New” Travel Ban From LexisNexis

For the new Executive Order click here:

https://www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlines/archive/2017/03/06/trump-travel-ban-2-0-mar-6-2017.aspx?Redirected=true

For other materials from DHS relating to the travel ban click here:

https://www.lexisnexis.com/legalnewsroom/immigration/b/newsheadlines/archive/2017/03/06/4-dhs-documents-re-travel-ban-2-0-mar-6-2017.aspx?Redirected=true

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PWS

03/06/17

New Administration “Travel Ban” Likely On Wednesday — Revisions Will Address Some Issues That Troubled Courts

https://www.washingtonpost.com/world/national-security/new-travel-ban-will-exempt-current-visa-holders/2017/02/28/42ac1f3a-fe03-11e6-99b4-9e613afeb09f_story.html?hpid=hp_rhp-top-table-main_trumpban-0608pm%3Ahomepage%2Fstory&utm_term=.33edc3e29145

Matt Zapotosky reports in the Washington Post:

“Barring any last minute changes, President Trump will sign a revised travel ban that exempts current visa holders, according to a person familiar with the matter.

The revision marks a significant departure from the now-frozen first executive order, which temporarily barred refugees and citizens of seven Muslim-majority countries from entering the United States, and resulted in the State Department unilaterally revoking tens of thousands of visas. Justice Department lawyers hope the new order will be more likely to withstand legal challenges and will not leave any travelers detained at U.S. airports.

The new order also removes an exception to the refugee prohibition for religion minorities, the person said. Critics of the order had said that exception proved it was meant to discriminate on the basis of religion, because it allowed only Christians into the country.
The new order, the details of which were first reported by the Wall Street Journal, is expected to be signed Wednesday. The person who described it to The Post did so on the condition of anonymity because the administration had not authorized the release of details.”

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I would expect advocates to quickly challenge the new order. If the Administration backs up the order with some evidence supporting its actions, the legal challenges might be more difficult this time around.

PWS

02/28/17

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UPDATE: NBC News reports Wednesday morning that the White House now says that the new Travel Ban Order will be further delayed.

PWS

03/01/17

Problems Mount For Administration On Travel Ban — Can’t Find Support For Their “Pre-Hatched” Conclusions — Stephen Miller Shoots Off Mouth Again — DOJ Litigators Undoubtedly Cringe As In-Court Statements Undermined!

https://www.washingtonpost.com/world/national-security/a-new-travel-ban-with-mostly-minor-technical-differences-that-probably-wont-cut-it-analysts-say/2017/02/22/8ae9d7e6-f918-11e6-bf01-d47f8cf9b643_story.html?utm_term=.e2b487b295a7

Matt Zapotsky writes in the Washington Post:

“Senior policy adviser Stephen Miller said President Trump’s revised travel ban will have “mostly minor technical differences” from the iteration frozen by the courts, and Americans would see “the same basic policy outcome for the country.”

That is not what the Justice Department has promised. And legal analysts say it might not go far enough to allay the judiciary’s concerns.

A senior White House official said Wednesday that Trump will issue a revised executive order on immigration next week, as the administration is working to make sure the implementation goes smoothly. Trump had said previously that the order would come this week. Neither the president nor his top advisers have detailed exactly what the new order will entail. Miller’s comments on Fox News, while vague, seem to suggest the changes might not be substantive. And that could hurt the administration’s bid to lift the court-imposed suspension on the ban, analysts said.

“If you’re trying to moot out litigation, which is to say, ‘Look, this litigation is no longer necessary,’ it is very bad to say our intent here is to engage in the prohibited outcome,” said Leon Fresco, who worked in the office of immigration litigation in President Barack Obama’s Justice Department.”

https://www.washingtonpost.com/blogs/right-turn/wp/2017/02/23/white-house-gives-plenty-of-ammunition-to-travel-bans-opponents/?utm_term=.9442c17ff14b

Jennifer Rubin writes in Right Turn in today’s Washington Post:

“Opponents of President Trump’s travel ban have one big advantage — the Trump White House. If not for the confusion, lack of staffing (nary a deputy, let alone an undersecretary or assistant secretary, has been named in national security-related departments), organizational disarray, policy differences or all of the above, the administration might have put together on its first try a legally enforceable executive order. It might by now even have come up with a new executive order, thanks to a road map provided by the 9th Circuit. However, the rollout has been pushed back to next week.

Understand that if this is such a matter of urgent concern, the president would have had his advisers working around the clock on this (not transgender bathroom assignments, plans to deport non-criminal illegal immigrants or haggling with Mexican officials over a wall that Trump insists they pay for). In fact, since the point of the ban is to initiate a review of our vetting procedures, you’d think that the Homeland Security Department would already have come up with its proposed “extreme vetting” recommendations.

Meanwhile, the president and his staff continue to provide legal ammunition to opponents of the ban. On Tuesday, senior adviser Stephen Miller in a Fox News interview boldly declared, “Fundamentally, you’re still going to have the same basic policy outcome for the country, but you’re going to be responsive to a lot of very technical issues that were brought up by the court.” Just to remind the courts of the administration’s arrogance, Miller proclaimed that there was nothing wrong with the first order.

“By saying that the policy effects of the new travel ban will be essentially the same as those of the travel ban that so many federal judges found constitutionally suspect, Miller is effectively inviting federal courts to suspend the new one as well, given that the religiously discriminatory history of the ban can’t be ignored, much less erased, simply by purporting to start over again,” Supreme Court litigator and professor Larry Tribe tells me. “If, as I am told, the new ban is a more artfully disguised version of [an] anti-Muslim measure, without explicit preferences for religious minorities in Muslim-majority countries (i.e., for Christians) written into the very text of the ban, then some judges might be less inclined to issue a temporary restraining order, but most federal judges would be savvy enough to recognize that they are being treated to a masquerade.”

http://www.cnn.com/2017/02/23/politics/white-house-effort-to-justify-travel-ban-causes-growing-concern-for-some-intel-officials/index.html

Meanwhile, Jake Tapper and Pamela Brown on CNN highlight more difficulties with the Administration’s “shoot first, ask questions later” approach:

“Washington (CNN)President Donald Trump has assigned the Department of Homeland Security, working with the Justice Department, to help build the legal case for its temporary travel ban on individuals from seven countries, a senior White House official tells CNN.

Other Trump administration sources tell CNN that this is an assignment that has caused concern among some administration intelligence officials, who see the White House charge as the politicization of intelligence — the notion of a conclusion in search of evidence to support it after being blocked by the courts. Still others in the intelligence community disagree with the conclusion and are finding their work disparaged by their own department.
“DHS and DOJ are working on an intelligence report that will demonstrate that the security threat for these seven countries is substantial and that these seven countries have all been exporters of terrorism into the United States,” the senior White House official told CNN. “The situation has gotten more dangerous in recent years, and more broadly, the refugee program has been a major incubator for terrorism.”

The report was requested in light of the Ninth Circuit Court of Appeals’ conclusion that the Trump administration “has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.” The seven counties are Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen.
The senior White House official said the desire to bolster the legal and public case that these seven countries pose a threat is a work in progress and as of now, it’s not clear if DHS and DOJ will offer separate reports or a joint report.
One of the ways the White House hopes to make its case is by using a more expansive definition of terrorist activity than has been used by other government agencies in the past. The senior White House official said he expects the report about the threat from individuals the seven countries to include not just those terrorist attacks that have been carried out causing loss of innocent American life, but also those that have resulted in injuries, as well as investigations into and convictions for the crimes of a host of terrorism-related actions, including attempting to join or provide support for a terrorist organization.
The White House did not offer an on-the-record comment for this story despite numerous requests.

. . . .

Asked about the report Thursday on “The Lead,” Rep. Dan Donovan, R-New York, emphasized that the intelligence community be nonpartisan.
“They should take data, take information, shouldn’t interpret it in a political way and provide the President the information he needs to make decisions to protect our country,” he said.
Also commenting on the report was Richard Haass, the president of the Council on Foreign Relations, who acknowledged that he hadn’t seen the specifics but “it looks wrong to me.”
“We ought to be doing the intel first, then set the policy and in large part based upon the intelligence,” Haass said. “If these reports are true, it’s yet another example where this administration is having real trouble ing a functional relationship with the intelligence community.”

[Emphasis supplied in all quotes]

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I was never a “line litigator.” But, I was involved in defending and prosecuting thousands of cases during the “Legacy INS Phase” of my career. I also participated in thousands more cases as an appellate and trial judge during the last 21 years at EOIR.

One of my jobs in providing litigation assistance as the Deputy General Counsel of the INS was to make sure my “institutional clients” did not comment on pending cases. Such comments both unnecessarily antagonized the judges hearing the cases and, on occasion, when folks didn’t heed my instructions, completely “tanked” our positions by giving our opponents new arguments.

As a sitting judge, I can guarantee that one of the least successful approaches was for a lawyer to insult my intelligence or integrity and then turn around and ask me to help out his or her client. Sure, in the end, I had to separate the law from the lawyer and do the right thing. But, it certainly interfered with the effectiveness of the lawyer’s communication and made it more difficult for me to get to the substance of his or her client’s case.

And, one thing that certainly infuriated all judges, including me, was for a lawyer to represent one thing in court and then have his or her client do something else. It made me lose confidence in the lawyer’s reliability and integrity and his or her ability to control and speak for the client. I can remember “chewing out” several lawyers at Master Calendar for misrepresenting facts or law to me in their briefs or oral arguments.

It appears that the Trump Administration’s combination of arrogance, ignorance, and disrespect for the court system and the role of judges is undermining both their credibility and the credibility of the Department of Justice career lawyers whose job is to represent them over and over again before most of the same judges. Once a judge loses faith in the credibility of a lawyer and/or her or his client, “bad things will happen” and they do.

PWS

02/23/17

CNN: There Are Human Faces And Real Stories Of Horror, Pain, Perseverance, Belief, And Redemption Exposing The Trump Administration’s Wrong-Headed Attempt To Ban Refugees!

http://www.cnn.com/2017/02/21/us/travel-ban-somali-refugees-separated/index.html

Catherine E. Shoichet writes on CNN:

“For minutes that feel like hours, Abdalla and his family stand like statues in a line, their eyes laser focused on the set of escalators at Atlanta’s airport where waves of arriving passengers emerge.
Businessmen with briefcases, pilots in uniforms and families wearing winter coats come into view.
But so far, there’s no sign of Batulo.
Suddenly, Abdalla yells and bolts across the waiting area, past a bright red security line on the floor that says “DO NOT CROSS.”
Guards shout. He doesn’t hear them. To Abdalla, only one thing matters now. He sees his daughter’s face and sprints toward the light.
He sweeps Batulo into his arms and carries her like a running back toward a wall on the other side of the lobby. The rest of the family follows, like a trail behind a comet as it speeds through the sky.
Habibo sobs as she sits beside Batulo on the airport floor. They had feared this day would never come.
Habibo sobs as she sits beside Batulo on the airport floor. They had feared this day would never come.
Batulo is still wearing a plastic pouch around her neck, stuffed with a plane ticket and an ID card from the International Organization for Migration.
“I am a refugee from SOMALIA,” the card says. “I may not speak English and need help to find my next flight.”
Batulo flew more than 10,000 miles to get here, from Kakuma to Nairobi to Dubai to New York to Atlanta. American Airlines Flight 1687 brought her to a strange city, yet she is home.
Abdalla and his family sit on the airport floor, pressed together like puzzle pieces. They cling to each other, sobbing.
A new home
Batulo beams as she sips a can of Sprite through a straw.
Her sisters tug at her arms, pulling her from room to room as they show her their new home.
The living room floor is covered with plates stacked high with food that the family cooked together for hours as they awaited her arrival.
They sit in a circle, devouring baked chicken, fried fish, french fries and ugali, a cornmeal dish they prepared especially for Batulo.
Abdalla sends a voice message to Ramadhan, his oldest son, who’s still living in Kakuma. Batulo made it safely, he says.

Ramadhan replies that he’s relieved. “God willing,” he says, “someday I will make it, too.”
As they eat, Batulo’s family peppers her with questions.
Is there a still a mango hanging from the tree outside the transit center in Nairobi?
How many countries did you fly through to get here?
When we left, you didn’t look like this. Why are you so thin?
Ibrahim brings out some of his favorite new toys. Together, they sing the ABCs. He falls asleep, curled up on the floor beside his sister.
Abdalla yawns, then quickly gulps down a cup of coffee.
Exhaustion is starting to set in, but this is a moment he doesn’t want to miss. He leans back against the couch and listens to his daughters’ voices.
The only sound he hears is laughter.”

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Read the complete story and see the video and pictures at the link. Happy ending to this one, thanks to the U.S. Courts which stood up to President Trump and his minions. As you read the entire story, compare the real situation of real refugees, human beings in great need, with the “fake news” and fear mongering put forth by the Trump Administration in an attempt to justify the unjustifiable.

PWS

02/21/17

Trump Administration Quietly Drops 9th Circuit Fight In Washington v. Trump — Will Rescind 1st Travel Ban EO And Issue Another!

http://www.vox.com/2017/2/16/14640676/trump-muslim-ban-new-replace

Dara Lind reports on VOX:

“The first thing President Donald Trump repeals and replaces is going to be his own executive order on immigration.

Both Trump, in a press conference, and the Department of Justice, in a court filing, said Thursday that the president is abandoning the order he signed January 27, banning all visa holders from seven majority-Muslim countries and nearly all refugees from entering the United States.

The ban was only in effect for a week before being put on hold by a federal court — and judges around the country have been less than sympathetic to the administration’s arguments for its constitutionality. President Trump continues to believe the judges’ ruling was “a bad decision.” But he’s buckling to it anyway.”

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The Department of Justice asked the full 9th Circuit to hold the case (Washington v. Trump) in abeyance until a new Executive Order is issued. Presumably, the Department will then argue that the new EO “moots” the case and that the full court therefore should vacate the decision of the 9th Circuit panel temporarily restraining the first Executive Order. In other words, there would no longer be a “case or controversy” once the first EO is rescinded.

There may well be challenges to the new Executive Order. We will just have to wait and see what it looks like. Most observers expect that the new order will be limited to individuals who have never entered the United States. It might therefore be more difficult to formulate a successful constitutional challenge.

However a separate suite before Judge Brinkema in the EDVA, Aziz v. Trump, analyzed in earlier blogs, had a “religious discrimination” finding that might have a better chance of applying to those whose relatives or businesses are affected by a new EO.

The full article at the link contains a further link to the relevant section of the Department’s latest filing in the 9th Circuit.

Late Breaking Update:

Reuters reports that the 9th Circuit has agreed to hold action on Washington v. Trump pending “further developments.”

http://www.huffingtonpost.com/entry/appeals-court-suspends-travel-ban-proceedings_us_58a655e0e4b07602ad532f2a?68v1jx9ghrb43g14i&

PWS

02/16/17

WashPost: Professors (And Former USG Senior Execs) Martin & Legomsky Analyze Judge Brinkema’s Travel Ban Decision — Religious Discrimination Finding Might Be Key To Opponents’ Future Success (Or Not)!

https://www.washingtonpost.com/local/public-safety/why-virginia-matters-in-the-travel-ban-fight/2017/02/14/27cfff3c-f2ec-11e6-b9c9-e83fce42fb61_story.html?utm_term=.880047c24800

Rachel Weiner reports:

“’Judge Brinkema spells out a lot more; she really fleshes out one of the possible claims, and that’s the religious discrimination claim,’” said David Martin, a professor at the University of Virginia who, for many years, helped shape immigration policy inside the government. ‘That may well prove to be the strongest or more fruitful line of inquiry for the plaintiffs in these various cases, particularly if they’re trying to reach past green-card holders or people on immigrant visas. It’s hard to get there without a religious discrimination case of some kind.’”

. . . .

“’It was a very well-reasoned, thoughtful decision. Frankly, I think, a more careful decision than the 9th Circuit decision,’ said Steve Legomsky, former chief counsel for immigration services in the Department of Homeland Security. In her opinion, Legomsky said, Brinkema ‘pretty methodically went through the various statements by Trump. . . . They put great weight on the opinions of the former national security officials to show the absence of counterevidence from the Trump administration. For both of those reasons, I think the Virginia opinion is very important.’
Brinkema also brings to the case extensive national security experience. She presided over the trial of Sept. 11, 2001, conspirator Zacarias Moussaoui, among other high-profile cases.

‘It was a thoughtful opinion, it’s well considered, it wasn’t hastily done like some of these other decisions had to be in light of circumstances,’ said Justin Cox of the National Immigration Law Center. His group is involved in several lawsuits against the ban, including one filed in Maryland last week focused on refugees. That case is specifically focused on religious discrimination.

‘Legally [the Virginia ruling] is actually quite significant because it’s the first court to squarely hold that the executive order violates the establishment clause,’ Cox said.

The danger for opponents of the ban is that, should the Justice Department appeal Brinkema’s decision, they will face the more conservative 4th Circuit rather than the left-leaning 9th Circuit.

‘It would be a close call,’ Legomsky said. ‘There is such strong evidence of religious discrimination — it’s really hard to know.’”

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As noted in this article, in addition to being leading academic “immigration gurus,” both Professor Martin and Professor Legomsky have lived in the “real world” of shaping Government policies and managing programs that actually implement those policies.

As they point out, while many of the objections to the “travel ban” could be eliminated by applying it just prospectively to those outside the U.S. who have not previously been admitted, that wouldn’t necessarily overcome Judge Brinkema’s finding that the “national security” reasons asserted by the Government in her court were merely “pretext” for unconstitutional religious discrimination.

While Justin Cox might be correct that the Fourth Circuit is not as liberal as the Ninth Circuit, that distinction probably would apply to every other Circuit Court of Appeals. Having spent 13 years as an Immigration Judge in Arlington, where my decisions ultimately could be reviewed by the Fourth Circuit and Fourth Circuit law applied, I found their immigration rulings very balanced. Indeed, they sometimes cited Ninth Circuit precedent and even were ahead of the Ninth in recognizing some migrants’ rights.

While the Fourth Circuit affirmed the overwhelming majority of BIA and Immigration Judge decisions in unpublished, non-precedential decisions, when they spoke in published precedents they always had important guidance to offer. The Fourth Circuit also was not afraid to stand up to the Government and “call them out” when necessary in the field of immigration.

And, at least in the Arlington Immigration Court, we trial judges paid close attention. I think that the Fourth Circuit’s very fair and well-reasoned asylum jurisprudence, in some significant ways more faithful to the asylum law and regulations than rulings of the BIA, was one reason why asylum applicants were often successful in Arlington. That’s also why many asylum cases in Arlington could be resolved by the parties in “short hearings” based on extensive written documentation and application of the Fourth Circuit law.

There is also a wonderful pastel portrait of Judge Brinkema in her court with the full article at the link. Check it out!

PWS

02/16/17

BREAKING: Judge Brinkema (EDVA) Issues Preliminary Injunction Against Parts Of Trump Travel Ban — Finds “National Security” A Pretext For Unconstitutional Religious Discrimination! (Updated With A Copy Of Judge Brinkema’s 22-Page Order, Courtesy Of Politico)

https://www.washingtonpost.com/local/public-safety/judge-in-virginia-grants-preliminary-injunction-against-travel-ban/2017/02/13/a6164bfe-f255-11e6-a9b0-ecee7ce475fc_story.html?utm_term=.99968d12d9cf

The Washington Post reports:

“The executive order, Judge Leonie M. Brinkema concluded, probably violates the First Amendment’s protections for freedom of religion.

Brinkema’s order applies only to Virginia residents and students, or employees of Virginia schools. A nationwide freeze has been in place for several days, having been issued in Washington state and upheld by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit.

In her opinion, Brinkema wrote that the Commonwealth of Virginia “has produced unrebutted evidence” that the order “was not motivated by rational national security concerns” but “religious prejudice” toward Muslims. She cited Trump’s statements before taking office, as well as an interview in which former New York City mayor Rudolph W. Giuliani (R) said that the president wanted a “Muslim ban.”

“The ‘Muslim Ban’ was a centerpiece of the president’s campaign for months, and the press release calling for it was still available on his website as of the day this Memorandum Opinion is being entered,” Brinkema wrote.

The case against the order in Virginia is being litigated by the state’s attorney general, Mark R. Herring (D). It was originally brought by lawyers for the Legal Aid Justice Center who were representing two Yemeni brothers turned away after landing at Dulles International Airport. The brothers have since been allowed into the country.

“I saw this unlawful, unconstitutional and unAmerican ban for what it is, and I’m glad the court did too,” Herring said Monday night. He said the decision “lays out in stunning detail the extent to which the Court finds this order to likely violate the First Amendment of the U.S. Constitution.”

Simon Sandoval-Moshenberg, an attorney for the brothers, Tareq and Ammar Aziz, said the judge was “calling out the ban for what it really is, a Muslim ban.”

The decision is significant, he noted, because a preliminary injunction requires a higher burden of proof than the temporary restraining order issued in Washington.

. . . .

Brinkema rejected that [the Government’s] argument. “Maximum power does not mean absolute power,” she wrote. “Every presidential action must still comply with the limits set by Congress’ delegation of power and the constraints of the Constitution, including the Bill of Rights.”

She also dismissed the idea that a halt on the ban would cause any harm. On the other hand, she said, the Commonwealth produced evidence that the ban is having a negative impact on students and faculty who can no longer leave the country for fear of losing their visas or who are no longer sure they can study in the state.

“Ironically, the only evidence in this record concerning national security indicates that the [order] may actually make the country less safe,” Brinkema wrote, a reference to a letter from a bipartisan group of national security professionals decrying the impact of the ban abroad.”

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

Here is Judge Brinkema’s 22-page order granting the preliminary injunction issued yesterday, Feb. 13, 2017 in Aziz v. Trump. (courtesy of Politico).

http://www.politico.com/f/?id=0000015a-3a0e-d784-a5fb-3ebe82c60000

PWS

02/14/17

Morning Joe: “Stephen Miller’s weekend performance: That was horrendous and an embarrassment!” — Other Than That, He Loves The Guy!

https://www.washingtonpost.com/news/the-fix/wp/2017/02/13/joe-scarborough-is-trying-to-make-trump-turn-on-stephen-miller/?utm_term=.8c119ea36330

Callum Borchers Wirtes in “The Fix” in today’s Washington Post:

“Joe Scarborough is trying to use whatever influence he has over Donald Trump to change the president’s mind about Stephen Miller. It hasn’t worked so far.

The MSNBC host previously blamed Miller for mishandling the rollout of the travel ban and on Monday resumed his campaign against Trump’s senior policy adviser, who made a series of breathtakingly forceful statements on the Sunday political talk shows, including:

“Our opponents, the media and the whole world will soon see, as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned.”
“Sean Spicer, as always, is a hundred percent correct.”
“It is a fact, and you will not deny it, that there are massive numbers of noncitizens in this country who are registered to vote.”

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

The video clips on this one (see link) are truly amazing. Miller is the “Perfect Storm” of arrogance, ignorance, and intolerance all wrapped into a package of smart-ass, off-putting demeanor, lack of gravitas, and robotic delivery. Hopefully, they never let this guy into a courtroom. Or, perhaps they should . . . .

Come to think of it, I’d love to see him go “toe to toe” with Judge Richard Posner of the Seventh Circuit. Nothing Judge P loves better than being told “who’s in charge.” And, as for the “I’m from the White House come to tell you about your authority, you robed boob” tone, let’s just say it wouldn’t be pretty. On the other hand, couldn’t happen to a more deserving guy.

PWS

02/13/17

The Hill: N. Rappaport Predicts That Trump Will Have Slam Dunk Win If “Travel Ban” Case Gets To Supremes!

http://thehill.com/blogs/pundits-blog/immigration/319212-if-immigration-ban-goes-to-supreme-court-trump-is-is-shoo-in

“Two states challenged President Donald Trump’s executive order, Protecting the Nation from Foreign Terrorist Entry into the United States, in a U.S. District Court. The District Court preliminarily ruled in their favor and temporarily enjoined enforcement of the order.

The government appealed to the U.S. Court of Appeals for the Ninth Circuit and filed a motion for an emergency stay to reinstate the order while its appeal from the District Court’s decision proceeds.
The court denied the government’s motion because it was not convinced that the government is likely to prevail on the states’ due process claim when the case is adjudicated on its merits. The court reserved consideration, however, on the states’ religious discrimination claim until the merits of the appeal have been fully briefed.

I have found no merit in the States arguments in support of either of those claims.”

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

Read Nolan’s complete article at the link which gives his reasons for finding both the Due Process and Religious Discrimination Claims under the Constitution without merit. Additionally, Nolan wrote an earlier article in The Hill on February 8, 2017, which I inadvertently missed, expanding upon his views of the nature of Presidential authority in this area:

http://thehill.com/blogs/pundits-blog/immigration/318540-exactly-how-much-immigration-authority-does-trump-have-well

I doubt that this case will reach the Supremes in its current posture for four reasons: 1) the Court generally does not review cases at the TRO stage; 2) with only eight Justices and having split evenly on the last major challenge to Executive Power (involving the Obama Administrations so-called DAPA program) I doubt the Court wants to take this on right now; 3) at the TRO stage, the record is very sparse and the Court often looks through the record for some non-Constitutional basis to avoid sweeping rulings; 4) the Court has complete discretion as to whether to grant review in this situation and does not have to provide any reasons for denying review.

As to the merits, I doubt that the EO as currently drafted can pass constitutional muster. For example, as noted by the 9th Circuit panel, a returning lawful permanent resident alien is entitled to full due process under Supreme Court rulings. Whatever that might mean in the section 212(f) context, it has to involve, at a minimum, a hearing before a quasi- judicial official with some type of Article III judicial review. To the extent that Nolan suggests that the President himself can make such determinations or delegate them to non-quasi-judicial officials I disagree.

Also, someone coming to the U.S. with a positive overseas refugee determination would clearly be entitled to a fundamentally fair forum in which to make claims for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Indeed, anyone arriving in the United States has such a right.

I recognize the Sierra Leonian example cited by Nolan in his 02/08/17 article, and apparently that case was affirmed by the BIA and the 2d Circuit in unpublished decisions. However, it seems to me that under the CAT, a full due process hearing is required before returning individuals to a country where they might be tortured, even where that country has given “diplomatic assurances” that the individual will not be tortured. See Khouzam v. Attorney General, 549 F.3d 235 (3d Cir. 2008). I also doubt that withholding of removal, which can be granted to someone arriving at a land border after an order of removal has been entered, really is an “entry” under the INA.

These are just the most glaring examples of the lack of thought, judgement, and legal analysis that went into this ill-advised Executive Order. Haste makes waste. Bad cases make bad law, etc.

I’m inclined to believe, however, that it is likely that a carefully drafted and properly vetted Executive Order which applies only to individuals overseas who have never been admitted to the U.S., and which provides at least some type of “facially legitimate” factual basis to support it (and I don’t mean the idea that prior Congressional and Executive actions on the entirely different issue of whether an individual who was not from one of these countries, but who had visited one of these countries, could come in under a waiver of any visa vetting at all — “visa waiver”) would likely be upheld by the Court.

But, that’s probably not going to happen under this Administration. Indeed, President Trump is making the strongest possible case that our doctrine of separation of powers and the continued existence of our very constitutional republic will require, if anything, an even higher degree of judicial scrutiny of almost all Executive actions. A President who surrounds himself with such obviously unqualified individuals as Steve Bannon, Stephen Miller, and Mike Flynn shows just why the President’s judgement is not to be trusted — on this or almost anything else.

There is a reason why this issue hasn’t come up before in our history. It’s called wise and prudent Executive judgement. And, it’s sorely lacking in this Administration.

PWS

02/13/17

Wow! Even Professor John “Johnny Waterboard” Yoo Thinks That Four Years Of Trump’s “‘So-called’ Judgement” Could Be Torture!

https://www.wsj.com/articles/trumps-so-called-judgment-1486941557

Yoo, author of the notorious “Torture Memos” under the Bush II DOJ, and his colleague Professor Sai Prakash (who, as far as I know, had nothing whatsoever to do with said Torture Memo) write in today’s Washington Post:

“But if presidential attacks on the courts are nothing new, the history also underscores the smallness of Mr. Trump’s vision. Jefferson, Lincoln and FDR knew when to speak and when to keep silent. They invoked the great powers of the presidency to oppose the Supreme Court only when fundamental constitutional questions were at stake: the punishment of political dissent; secession and slavery; Congress’s power to regulate the economy. The occasion for Mr. Trump’s fury is a temporary restraining order of a temporary suspension of immigration from seven countries. Mr. Trump still has the opportunity to prevail on the merits. He hasn’t lost the case—at least not yet.

The Trump administration will often appear in court over the next four or eight years. It will lose plenty of cases, because, like its predecessors, it will push the legal envelope. If the president publicly vents every time he loses a ruling, his complaints will recede into background noise.

Questioning judicial decisions, and even the judiciary’s legitimacy, is entirely proper. But a wise president will reserve such attacks for extraordinary matters of state involving the highest constitutional principles. To do otherwise risks dissipating the executive’s energy, weakening the president’s agenda, and wasting his political capital. When criticizing the Supreme Court for upholding the Bank of the United States, declaring Dred Scott a slave, or striking down the New Deal, presidents were advancing constitutional agendas worthy of a fierce attack on the courts. Mr. Trump is upset about losing a minor procedural test of a temporary executive order. If he doesn’t learn to be more judicious, we’re in for a long four years.”

****************************
Kinda says it all. Yoo and Prakash are right. All Administrations lose cases on a daily basis in Federal Courts throughout the county — literally thousands of them over a full Administration.

I know, because one of my duties as the Deputy General Counsel of the “Legacy INS” was to to write or supervise the writing of “Adverse Decision Reports” (known in the DOJ litigation business as “Tombstones”) to the Solicitor General’s Office. It could have been almost a full time job (without some “help from my friends” in the office and the field).

And, of course, the INS was only one of many Government agencies litigating in the Federal Courts every day. We at the “Legacy INS” even had our own “dedicated litigation division,” known as the “Office of Immigration Litigation (“OIL”)” within the Civil Division. Also, no (or almost no) term of the Supreme Court goes by without the USG being on the “losing” side of one or more major decisions.

So, the Prez better get used to it. He could start by paying more attention to the career “Federal Court Pros” in the Solicitor General’s Office and OIL and less attention to the views of guys like Stephen Miller, Steve Bannon, and even VP Mike Pence who are totally clueless as to how to conduct winning Federal litigation. Indeed, as Governor of Indiana, Pence got “totally creamed” in his disingenuous, mean-spirited, and illegal attempt to bar the resettlement of well-screened Syrian refugee families in Indiana. But, some folks never learn (and. perhaps, never will).

PWS

02/13/17

Trump Mulls Travel Ban Options — Rewrite of Exec Order Possible — Might Forego Request For Supremes’ Intervention Now!

https://www.washingtonpost.com/world/national-security/white-house-considers-rewriting-trumps-immigration-order/2017/02/10/ddcf5a6a-efb5-11e6-b4ff-ac2cf509efe5_story.html?hpid=hp_rhp-top-table-main_trumpban-408pm%3Ahomepage%2Fstory&utm_term=.c2de193b26a6

From the Washington Post:

“President Trump said Friday that he is considering rewriting his executive order temporarily barring refugees and citizens of seven Muslim-majority countries from entering the country, indicating that the administration may try to quickly restore some aspects of the now-frozen travel ban or replace it with other measures.

Trump told reporters aboard Air Force One that he would probably wait until Monday or Tuesday to take any action, and White House Chief of Staff Reince Priebus said several options — including taking the case to the Supreme Court — were still on the table.

Trump hinted that the ongoing legal wrangling might move too slowly for his taste, though he thought he would ultimately prevail in court.”

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

Many commentators have suggested that the Administration could have avoided most of the constitutional issues that have bothered the courts by simply making the order applicable solely to those abroad who have not been admitted to the U.S. as refugees or with visas.

The Solicitor General’s Office at the DOJ (even though there is no appointed “SG” for now, there are plenty of career “Supreme Court pros” on the staff) doesn’t like to “look bad” before the Supreme Court. Normally, the Solicitor General must approve and sign off on all Government filings before the Supreme Court. It’s possible that the SG’s Office thinks that the Administration’s case is unlikely to prevail in its current posture, and is therefore trying to persuade the Administration not to file for Supreme Court review right now.

PWS

02/10/17

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