"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Category: United States District Judge Manuel Real
Pulitzer Prize Winning journalist Michael Hiltzik reports for the LA Times:
Another judge slaps down Jeff Sessions for trying to punish ‘sanctuary’ cities like L.A.
Atty. Gen. Jeff Sessions just can’t win in his attempts to punish local communities for “sanctuary” laws. (Aaron P. Bernstein / Getty Images)
Atty. Gen. Jeff Sessions must be getting tired of so much winning in his campaign to punish cities and states with the temerity to challenge his attempted crackdown on immigration.
In the latest episode, U.S. Judge Manuel L. Real of Los Angeles enjoined him from withholding more than $1 million in federal law enforcement assistance funding from L.A. because the city declared itself a “sanctuary” community. Real ruled that Sessions was way out of line in attempting to add conditions to a federal grant program designed to be based strictly on a community’s population and crime rates.
Real’s injunction tracks a nationwide injunction issued in April by the U.S. 7th Circuit Court of Appeals in Chicago. In that case, brought by the city of Chicago, the appellate panel ruled 2-1 that Sessions’ actions “evince … a disturbing disregard for the separation of powers” principle enshrined in the Constitution.
The Attorney General repeatedly characterizes the issue as whether localities can be allowed to thwart federal law enforcement. That is a red herring.
7TH CIRCUIT COURT OF APPEALS
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“The power of the purse does not belong to the Executive Branch,” the majority reminded Sessions. “It rests in the Legislative Branch,” which in this case didn’t delegate to Sessions the authority to impose conditions on the law enforcement grants.
Several federal courts have slapped down Sessions’ efforts to bludgeon local communities into doing the federal government’s dirty work of immigration enforcement, so it’s proper to take a quick look at Sessions’ viewpoint.
Sessions started throwing conniptions about sanctuary communities in March 2017, a couple of months after President Trump issued an executive order calling for federal funds to be withheld from communities that he said were out to thwart immigration agents. “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States,” Trump asserted.
Trump’s order recognized that the law might constrain how the Department of Justice might act, so Sessions attempted to gin up a legal rationale. He asserted that jurisdictions across the nation were actively violating federal immigration laws, pumping undocumented immigrants back onto the streets even after their convictions for serious crimes. Sessions has cited two provisions of federal law, “Section 1373” and immigration detainers.
The first, enacted in 1996 under Bill Clinton, prohibits anyone from interfering with the exchange of information with federal authorities about the immigration status of any person. The law says merely that once local officials have that information, they can’t be stopped from trading it to the feds. Nothing in the law, however, requires local officials to collect information about the immigration status of anyone they have in custody in the first place.
“Detainers” are requests by immigration officials that local police hold immigrants who are in the U.S. illegally and suspected or accused of a serious crime for 48 hours, or until the immigration authorities can decide if they want to take further action themselves. The Congressional Research Service found in 2015 that local policies vary widely about when to honor detainers, with many honoring those for people held for serious felonies but not for suspects in minor misdemeanor cases. Some require commitments from the federal government to cover the cost of detention or even the locality’s legal liability. Demanding compliance with all detainers, some experts say, raises the possibility of federal commandeering of local resources for federal purposes, which happens to be unconstitutional.
Since Sessions began griping about sanctuary laws — many of which were enacted decades before Trump became president — federal judges have recognized consistently that localities have a legitimate interest in creating a trustful relationship between the police and the communities they serve. In communities with large populations of immigrants, that relationship can be easily destroyed if the cops become viewed as immigration agents. Residents will be reluctant to report crimes, much less help police find wrongdoers or testify against them. The result is more dangerous, not safer, communities.
In July, for example, Federal Judge John Mendez of Sacramento rejected the administration’s attempt to block three sanctuary laws enacted by the state Legislature in 2017. Mendez found that for the most part the laws fell squarely within the state’s authority to manage its own law enforcement resources and keep them from being “commandeered” by the federal government for its own purposes.
Nothing in the sanctuary laws “actively obstructs” federal officials, Mendez found; they only required state officials not to participate in federal immigration enforcement, except on their own terms. “Standing aside,” he wrote, “does not equate to standing in the way.”
Sessions hasn’t had any more success in trying to block federal funds for sanctuary cities. That’s the subject of the appeals court and Los Angeles cases. Both pertain to the Edward Byrne Memorial Justice Assistance Grant, a federal program enacted in 2005 and named after a New York police officer slain while guarding an immigrant who had agreed to testify against drug dealers.
Congress established a strict formula for the Byrne funds, requiring that 50% be disbursed each year to states in amounts proportionate to their population and crime levels, with the remaining 50% tied to states’ proportions of violent crime. The city and county of Los Angeles, which were to receive a combined $1.9 million in the current fiscal year, planned to use the money for anti-gang programs, among other things.
Before making the disbursements, however, the DOJ said that applicants would have to certify their compliance with Section 1373 and agree to other forms of cooperation with immigration officials.
The appeals court in Chicago thought little of the DOJ’s arguments. “The Attorney General repeatedly characterizes the issue as whether localities can be allowed to thwart federal law enforcement,” the majority observed. “That is a red herring.” They ridiculed Sessions for being “incredulous that localities receiving federal funds can complain about conditions attached to the distribution of those funds.” But that was just too bad, they concluded: He simply doesn’t have the authority to attach any conditions to the program, other than those dictated by the formula.
Judge Real came to the same conclusion. Sessions’ policy faced Los Angeles with “an impossible choice: Either it must certify compliance with unconstitutional and unlawful directives that impinge on the City’s sovereignty, damage community trust, and harm public safety, or it will lose congressionally authorized Byrne JAG funding.” Real wasn’t inclined to force the city to make that choice.
For a federal officer charged with upholding the law, Jeff Sessions seems to need an awful lot of reminding of what the law says. It’s time he took the lessons he’s getting from federal courts to heart.
Michael Hiltzik
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Pulitzer Prize-winning journalist Michael Hiltzik writes a daily blog appearing on latimes.com. His business column appears in print every Sunday, and occasionally on other days. As a member of the Los Angeles Times staff, he has been a financial and technology writer and a foreign correspondent. He is the author of six books, including “Dealers of Lightning: Xerox PARC and the Dawn of the Computer Age” and “The New Deal: A Modern History.” Hiltzik and colleague Chuck Philips shared the 1999 Pulitzer Prize for articles exposing corruption in the entertainment industry.
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Once upon a time, many years ago, I worked at a U.S. Department of Justice that functioned like “America’s law firm.” Every adverse decision was carefully studied by the agency, the litigator, and the Solicitor General’s Office. When the reviewing court appeared to have “the better view of the law,” or when the agency position was repeatedly rejected and there was no “Circuit split,” the rules, regulations, BIA interpretations, and even the statute sometimes were changed to adopt the Federal Courts’ “better-reasoned view of the law.”
Indeed, while serving in the Legacy INS General Counsel’s Office under then General Counsel Sam Bernsen, I remember drafting successfully enacted legislation (known as the “INS Efficiency Act”) that actually adopted into law some Federal Court decisions that had reversed INS and also tried to fashion some “legislative compromises” that we thought would pass muster in the Article IIIs. Amazingly, it was enacted into law with only minor modifications to my original draft.
Yup, it wasn’t always popular with the “operating divisions” of the INS. But, it was the job of “us lawyers” to “sell them” on why compliance with legal standards was important. And, indeed, I remember getting the essential support of “upper level management” — at that time the Commissioner, General Leonard Chapman, Jr., and his Deputy Jim Greene, certainly supporters of strong immigration enforcement, for the legislative changes our Office drafted.
In other words, we were trying to make Government work effectively within legal boundaries rather than continuing to bother the Federal Courts with untenable or legally weak positions. Folks committed to “Good Government.” Imagine that!
Nowadays, under Jeff Sessions, the DOJ has abandoned any semblance of good lawyering or legal excellence and has, with a few exceptions (possibly Bob Mueller’s operation and the FBI under Director Chris Wray), been turned into a “White Nationalist propaganda factory.” Today’s hollow semblance of a DOJ consistently presents “jaw dropping” legal positions that are both bad policy and supported by weak to nonexistent legal arguments that sometimes fail to pass the “straight fact test.”
That’s because Jeff Sessions doesn’t operate as a lawyer. No, he’s a “Minister of Propaganda” who spreads racially-driven bogus views, false narratives, and misleading statistics, then feigns shock and outrage when the “real” Federal Courts consistently “stuff” him and apply the actual law and Constitution. When your legal positions are not drawn from the law, the Constitution, input from career lawyers, and consultation with experts in the field, but rather taken from “cue cards” prepared by widely discredited White Nationalist restrictionist groups, the results are bound to be ugly.
The only surprising thing is that such a stunningly biased and unqualified individuals as Jeff Sessions has been given the opportunity to destroy the integrity of the U.S. Department of Justice and to make it a subservient tool of his attack on American values and our entire justice system. Sen. Liz Warren tried to tell ’em. But they wouldn’t listen. Now, Jeff Sessions is dragging all of America down in the muck with him.
LOS ANGELES — The Justice Department cannot require that local police departments help immigration agents in order to receive federal funding, a federal judge has ruled. The ruling is a significant victory for local governments that have opposed the Trump administration’s stance on immigration and vowed to stay out of enforcement efforts.
United States District Judge Manuel Real in Los Angeles issued a permanent, national injunction against the federal funding rules, giving the city an important win in a long-running legal battle with Attorney General Jeff Sessions and the White House.
The ruling is “a complete victory,” Mike Feuer, the Los Angeles city attorney, said Thursday. “This is yet another dagger in the heart of the administration’s efforts to use federal funds as a weapon to make local jurisdictions complicit in its civil immigration enforcement policies.”
A Justice Department spokesman, Devin M. O’Malley, suggested an appeal was likely.
The federal government is legally entitled to give priority in its grant funding to local governments “that prioritize the safety of their communities and their law enforcement officers when they promise to cooperate with federal immigration authorities seeking information about illegal aliens who have committed crimes,” he said in a statement.
“Unfortunately,” he added, “the court not only rejected this common-sense conclusion, but it chose to issue a permanent nationwide injunction that is overbroad and inconsistent with the rule of law. We look forward to continuing the strong defense of our position.”
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Los Angeles has received millions of dollars under a federal program to promote community policing.CreditMonica Almeida/The New York Times
The ruling handed down Wednesday came in one of several lawsuitsthat state and city officials in California have filed against the federal government arguing that it has overreached in trying to force local officers to help with immigration enforcement.
“The Trump administration cannot manipulate federal grant fund requirements to pressure states, counties or municipalities to enforce federal immigration laws,” Xavier Becerra, California’s attorney general, said last year when the state filed a lawsuit against the administration for denying funding to so-called sanctuary cities.
Last month, a federal district judge declined to issue a preliminary injunction against the federal government in that case, saying that the courts in other parts of the country had reached different conclusions and that “issues in this case will benefit from further development.”
After that ruling, the Trump administration filed its own lawsuit against California over its own “sanctuary state” law, which prevents the police in many cases from holding people at the request of federal immigration agents, and limits the sharing of information about the release of some county jail inmates who are in the country illegally. In its suit, the federal government argues that the law makes it impossible for immigration officers to do their jobs. A hearing in the case is scheduled for late June.
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Read the complete article at the link.
The losses just keep piling up for Gonzo & Co. And, not surprisingly, the inability of Gonzo to provide anything approaching a rational basis for his actions is a continuing problem.
He’s a guy whose career has been based on bias and racism. And, when that’s the only unstated rationale for a program, many Federal Courts are seeing right through the ruse. No, terrorizing communities and destroying relationships that have taken decades or more to build is not about effective law enforcement! It’s all about racism and bias.
Here’s a link to Judge Real’s decision in City of Los Angeles v. Sessions
