"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
“Hipppity, hippity, hop! Deny, deny, deny! For any reason, in any season, or for no reason at all! Hippity, hippity, hop!” https://www.flickr.com/photos/rasputin243/ Creative Commons License
Dan Kowalski reports for LexisNexis Immigration Community:
Fwd: CA2 Vacates Matter of Y-I-M-, 27 I. & N. Dec. 724 (B.I.A. 2019)
“Petitioner, a native and citizen of Ukraine, seeks review of a December 12, 2019 decision of the Board of Immigration Appeals (“BIA”) affirming the denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Based on ostensible inconsistencies in Petitioner’s testimony and a purported failure to submit corroborating evidence, an Immigration Judge (“IJ”) entered an adverse credibility finding. However, we conclude that the adverse credibility finding is not supported by substantial evidence and that the IJ unjustifiably refused to allow Petitioner to present readily available witness testimony, thereby depriving him of a full and fair hearing. As such, we GRANT the petition for review, VACATE the BIA’s decision, and REMAND the case for further proceedings consistent with this opinion.”
First, many congrats to NDPA super lawyer John Giammatteo! Obviously (to everyone but Garland), experts like John belong on the Immigration Bench, not just in front of it!
Something is horribly wrong with a system that designates fabrications and denials of due process as “precedents” to guide other judges! Something is also disturbingly wrong with an Attorney General, a former Article III Federal Appeals Judge no less, who has failed to bring in real expert progressive judges to run EOIR, redo defective precedents as proper legal guidance, eradicate the disgraceful anti-asylum bias, and enforce due process, fundamental fairness, and decisional excellence in America’s most important “retail level” court system!
There currently are opportunities for better judges to get into the system, start eradicating bad judging like this, and replacing it with expert, due process focused, efficient, “real judging” by better judges. Get those applications in!
The “message” of Matter of Y-I-M- is clear: make it up, ignore it, cut it off, hustle off to lunch — whatever it takes to “get to no” — we’ll have your back!
“The decision is scorching,” says Dan Kowalski. And, well it should be! This is a disgusting,institutionalized travesty of justice 🤮, in life or death cases ☠️, going on right under AG Merrick Garland’s nose! It’s undermining American democracy! And, it’s totally preventable!
Remarkably, the BIA selected this pathetically bad adjudication — one that raises questions as to whether anyone at EOIR even read the record — combined with a horrendous denial of due process, and an IJ who obviously felt “empowered” to elevate time over fairness and substance — as a precedent! That means it was supposed to be a “model” for IJs — essentially a message that you should go ahead and deny asylum for any reason — even if largely fabricated — and the BIA will give you a “pass.” This actually raises some serious ethical problems with the whole EOIR mess and Garland’s indolent stewardship over this critical part of our justice system!
The IJ actually said this: “So, don’t get frustrated if I shutdown your arguments. It’s just that —we’re now at 12:00, and we’re nowhere . . . near done in the case.”
Amazingly, this IJ “touted” that cutting off relevant testimony, actually “helped” the respondent by giving him more possible reasons to appeal! Does this sound like a system that encourages “efficiency” and “excellence?”
No wonder they have backlogs coming out the wazoo! Yet, rather than slamming this IJ and using it as a precedent of how NOT to handle an asylum case, the BIA basically “greenlighted” an egregiously defective performance and made it a “model” for other judges! Outrageous!
It’s an example of why this system needs progressive, due process oriented leadership and radical reforms! Now!
A competent IJ could have granted this corroborated case and still have made their “noon lunch date!” Recognizing and institutionalizing consistent grants of relief is what “moves” the Immigration Court system without violating anyone’s rights and without tying up the Article III Courts!
Instead, because of the unchecked “culture of denial” and the incompetence allowed to flourish at EOIR, after four years this case is still bouncing around the system. That’s a key reason why EOIR is dysfunctional and their backlogs are out of control!
Correct, positive precedents establishing and enforcing best practices are essential to due process and fundamental fairness — once, but no longer, EOIR’s “vision.”
One of the “uninitiated” might logically expect that having exposed and eliminated this disingenuous “any reason to deny asylum” precedent, advocates for due process and fundamental fairness have “won this battle.” Not so in the “parallel universe” of Garland’s EOIR!
As pointed out by Hon. “Sir Jeffrey” Chase of the Round Table:
If they follow past practice, the BIA will continue to apply this decision as a model for IJs in every circuit but the 2d.
Come on, man!
The author of the Second Circuit decision, U.S. District Judge Gary Brown has an interesting background, according to “Sir Jeffrey:”
Also, the judge who wrote the decision for the panel, Gary Brown, is a Trump appointee to the Eastern District of NY sitting by designation on this panel. When John’s argument was being mooted, we actually discovered that Judge Brown is also a renowned magician, who invented an effect called the Viking Spirit Trumpet.
Actually, Judge Brown was nominated for the bench by both President Obama and President Trump! Wonder if he has any magic spells up his sleeve that would make EOIR disappear and reappear as a real, due-process-focused court!
Magic Hat & Wand Could U.S. District Judge Gary Brown, also a famous magician, conjure up a spell that would make due process “reappear” at EOIR? PHOTO: Public Realm
Amazing how busy Article III Judges can take the time to read and understand records in asylum cases, but the BIA can’t! This system is broken!
Meaningful reform starts with a new, better qualified, expert BIA focused solely on due process, fundamental fairness, and decisional excellence. It’s very straightforward! Why doesn’t Garland “get it?” How many more will be wrongfully denied while our disconnected AG floats around in his surreal, yet deadly, “intellectual never never land?”
Lost in an intellectual fog, and far removed from the “retail level of justice,” AG Merrick Garland can’t be bothered with the injustices heaped on asylum seekers and their dedicated representatives in his dysfunctional, deny for any reason, Immigration Courts! PHOTO: Wikipedia Commons
Every time I read this decision I get more and more outraged about the continuing horrors of EOIR! Attorneys could face sanctions for making material misrepresentations in briefs. Yet, nothing happens to EOIR Judges who “make it up as they go along” to deny asylum!
I was told by some withknowledge of the EOIR disaster that, at least until recently, those at higher levels of the Administration who (curiously) are “pulling the strings” at EOIR were unaware that Immigration Judges are not automatically “packaged” with Judicial Law Clerks! Duh! Anybody who has actually worked at the “line level” of EOIR as well as a whole bunch of widely available reports and studies could have told them that!
So, according to my sources, in at least some locations “flooded” with new IJs, the already poor IJ to JLC ratio has gotten much, much worse!
Just another piece of “low hanging fruit” that Garland has failed to “harvest.” I’ve also been told that problems with grade levels discourage individuals from making a career out of working in the law clerk program.
All of this makes it critical that new Immigration Judges be experts in immigration law with “hands on” experience. So, NDPA practical scholars, get those applications for judgeships in NOW! Indolence about due process at the top creates opportunities for spreading and institutionalizing due process at the “retail level!” But, that requires great judges with the right experience. So, don’t wait! Apply today!🗽⚖️👨🏾⚖️👨🏼⚖️👩🏾⚖️🧑🏻⚖️
Felicia Rangel-Samporano and Victor Cavazos founded The Sidewalk School, then a migrant shelter in Mexico. Now they also provide tech-support for a flawed U.S. immigration app.
Since opening, the school has also expanded to the neighboring Mexican border city of Reynosa. Because life in the migrant camps is transitory, The Sidewalk School’s teachers came and went, sometimes within weeks, said Rangel-Samponaro. They decided it would be easier to hire educators from Mexican border communities instead. Residents also understand better how to navigate the complicated dynamics at play in cities like Matamoros and Reynosa, which are riven by cartel-related crime—most recently, the kidnapping of four U.S. citizens in Matamoros, two of whom were shot and killed by cartel gunmen.
The Sidewalk School teaches based on the U.S. school calendar. In February they celebrated Black History Month, for example, she said. They focus on reading, writing, drawing, and play activities. Classes are typically held from 10:00 a.m. to 3:00 p.m. They currently have 10 people on staff in Matamoros and Reynosa. “We need even more staff,” Rangel-Samponaro said. “In both cities.”
Frontline Responders
As elected leaders in both Mexico and the United States fail to acknowledge the seismic shift in global displacement due to climate change, Covid-19, and other factors, migrant camps continue to appear up and down the Mexican border.
Border residents have been frontline responders, adapting to the most pressing needs in the camps, one of which is housing. Recently, The Sidewalk School joined the church group Kaleo International to build a shelter in Reynosa. The shelter houses mostly Haitian and African migrants, who are some of the most vulnerable since they are routinely targeted for kidnapping and persecution in Mexico.
But one of the biggest surprises, said Rangel-Samponaro, is that they now serve as tech support for the CBP One app, which was rolled out in January by the U.S. government for migrants to apply for asylum, as an exemption to Title 42. The app has been plagued with errors. And humanitarian groups have complained that the app, which requires that each person upload a selfie to begin the asylum process, often won’t accept photos of darker-skinned applicants.
Currently, there are thousands of Haitians in both Reynosa and Matamoros, as well as other darker-skinned asylum seekers, who are stuck because they can’t get the app to accept their photos. (The manual on the app, which Sidewalk School employees consult daily is 73 -pages long).
I visited Reynosa and The Sidewalk School in late February and spoke with several Haitian families who had tried to use the CBP One app.
I was quickly surrounded by frustrated parents who said they’d been trying for weeks to make the app work. Living in makeshift shelters made of tarps and cardboard and having little to no access to the internet, parents were waking up at 3:00 a.m. in the morning to find a place with an internet connection, then registering, and trying to take and upload their photo before 8:00 a.m., when the app began accepting daily applications.
“I have an appointment,” one father told me. “But the app won’t accept the photos of my children, so I can’t get appointments for them.”
The app often timed out, crashed, or gave error messages, they said. “It’s a disaster,” one man said, after I asked him to sum up his experience trying to use the app.
“People don’t like hearing it, much less acknowledging what is happening to Black asylum seekers,” Rangel-Samponaro said. “They are stuck inside these encampments for months compared to people of Latin descent, who are at the camps for maybe two weeks or a month.”
I spoke with at least 10 different Haitian families, and they all told me that they’d been living in the migrant camp in Reynosa for at least five months.
“We don’t have enough food,” a Haitian boy told me in Spanish, who said he was 11 years old. “And I have this rash on my face.” He pointed to his cheek. Open sewers and trash littered the area around the camps. And the families, who said they couldn’t work and were struggling to buy food, said they were growing desperate.
Felicia Rangel-Samporano visiting a migrant camp in Reynosa with mostly Haitian and Venezuelan asylum seekers. (Photo: Melissa del Bosque)
So desperate that families were considering splitting up. Rangel-Samponaro said there had been anguished meetings with parents who were considering sending their children across as unaccompanied minors. If the parents could get appointments through the app, they would reclaim their children once they arrived in the United States. At least that’s what they hoped.
Recently, The Sidewalk School brought in an immigration attorney to explain to parents how difficult it can be to find a child once they have been designated as unaccompanied in the U.S. immigration system. Children are held by CBP, then transferred to a shelter run by the Office of Refugee Resettlement somewhere in the country. “We’ve explained to them that it’s unlikely that they will cross, and their child will be there waiting for them,” she said.
And once people are accepted by the app for an appointment, they are extensively vetted through a series of law enforcement databases, and some are turned back, she said. “Just because you’ve got an appointment doesn’t mean they’re going to let you in to the United States.”
Rangel-Samponaro, like many others who provide humanitarian services in Mexico, is in frequent contact with CBP about problems with the app. In early March, she said, the agency updated the app so that it only requires one member of the family to submit a photo. But there are still not enough appointments for every member of the family, she said, so families are still splitting up and sending their children across as unaccompanied minors.
The Border Chronicle requested a response from CBP about the app. Tammy Melvin, a CBP press officer, replied in an email that the agency “continues to make improvements to the app based on stakeholder feedback.”
She said that “appointments will only be shown if enough slots for each member in the profile is available.”
And Melvin added in the email that they’ve not seen any issues linked to ethnicity. “CBP One is not conducting facial recognition that compares photos submitted in the application against any other reference system to identify someone,” She wrote. “CBP is not seeing any issues with the capture of the liveness photos due to ethnicity.”
Rangel-Samponaro and others disagree. “We’ve invited the app developers to Reynosa and Matamoros to see the problems we’re having firsthand, but they’ve declined to visit,” she said.
Meanwhile, the hardships keep growing for asylum seekers. Recently, the Biden Administration announced, beginning in May after Title 42 is lifted, that asylum seekers must apply for asylum in the first country they enter, rather than at the U.S.-Mexico border.
Rangel-Samponaro said The Sidewalk School is doing everything it can to help, as even more people will likely be stuck in limbo after the policy change in May. They’re providing educational programs, running a shelter, and now providing tech support, and helping people navigate the U.S. government’s glitch-filled app. “I struggle to categorize everything that we do now,” she said.
Just one of the many error messages encountered while using the CBP One app that Rangel-Samponaro and others try to troubleshoot for asylum seekers. [The “error messages” are all too real! The CBP denial that there is a problem is surreal!]
The first two years were rough going, she said, and she and Cavazos spent their own money to keep The Sidewalk School afloat. Now they’re receiving some grants and donations. But it’s always a struggle, she said. “We need more volunteers, more funding,” she said. “Because the need never stops.”
For volunteer opportunities and to learn more about The Sidewalk School click here.
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Read Melissa’s full article at the link.
How’s this for “contrast?” Felicia Rangel-Samporano and Victor Cavazos, private citizens, gave up comfortable lives in the U.S. and invested their own time and money in addressing the needs of children and families essentially “tashed” by lawless inhumane policies of both the Trump and Biden Administrations. Meanwhile, racist, cowardly, bullying Gov. Greg Abbott (R-TX) is leading a clearly unconstitutional effort to deny children in Texas U.S. the public education to which they are entitled under Supreme Court precedent. Have to ask what’s wrong with a state that puts a horrible person like Abbott, who doesn’t even govern very well in emergencies or other areas, in charge? They also enabled Texas Attorney General Ken Paxton (R), another bullying, lawless, coward who is basically the “bottom of the barrel!”
What the major networks and “mainstream”nmedia aren’t telling you:
“[E]lected leaders in both Mexico and the United States fail to acknowledge the seismic shift in global displacement due to climate change, Covid-19, and other factors;”
“Same old, same old” deterrence and officially-sanctioned cruelty, even in large, expensive, wasteful doses will NOT “solve” refugee flows;
The U.S. “system,” such as it is, systematically mistreats Black asylum seekers;
“CBP One” is defective technology that should never have been put into operation without testing and approval from the humanitarians actually working in the camps in Mexico;
So bad is CBP One that it is encouraging family separation;
The “requirement” that every family member obtain a separate appointment throughCBP One is totally insane;
Even when asylum applicants get an appointment, it’s still a “crap shoot” because the Administration functions in a lawless, opaque, and arbitrary fashion without the necessary legal and practical expertise and safeguards in place;
The very idea that Mexico is a “safe” place to send non-Mexicans rejected at the border, under the totally irrational and illegal “presumption of denial” proposed by the Administration, is beyond preposterous;
The Biden Administration has failed to heed the advice of experts who have actually worked on the border and who have constructive ideas for making the law work.
I’m not just getting the above from this article. I have recently had a chance to hear from individuals actually providing legal and humanitarian services at the border who basically said that the situation there is “beyond FUBAR” and that the Administration officials “crafting” border policies are out of touch with reality and not up to their jobs! In some cases, they are just paying no attention to the law or the advice of those who actually understand the system, both in and out of Government.
That seems exactly what we voted out of office when the Trump kakistocracy was removed. Why, then, does Biden think that ignorance, bias, cruelty, and incompetence on human rights and racial justice is now a “winner?” Why is he aligning himself and his Administration with GOP nativist zealots like Abbott, Paxton, DeSantis, Trump, and Miller, rather than with folks like Rangel-Samporano and Cavazos who actually represent the humane, practical, problem-solving values that the Dems ran on in 2020?🤯
With human lives at stake every day, one would think that our Government’s massive violations of human rights and cavalier dismissal of legal rights recognized for more than four decades, would be of great interest to the so-called “mainstream media” and that all Democrats would be demanding changes in human rights/immigration leadership (obviously, Mayorkas & Garland are the wrong folks) and a competent, legal, humane approach from the Biden Administration. But, unfortunately, you would be wrong! Dead wrong, in some cases! ☠️⚰️
A longtime Nassau County, New York, district court judge and New York Supreme Court justice, Feuerstein was appointed to the federal bench by former President George W. Bush in 2003 and was serving as a judge in the Eastern District of New York in Central Islip. She and her mother, Judge Annette Elstein, who died in 2020, made history as the first mother and daughter in the United States to serve as judges as the same time.
At the time of her death, Feuerstein was presiding over a high-profile murder-for-hire case in which a former New York Police Department officer is accused of hiring a hitman to kill her estranged husband. It’s unclear how Feuerstein’s death will impact the case.
Mark Lesko, the acting U.S. attorney for the Eastern District of New York, issued a statement expressing condolences to Feuerstein’s family.
“As we mourn her tragic death,” Lesko said, “we also remember Judge Feuerstein’s unwavering commitment to justice and service to the people of our district and our nation.”
ABC News’ Benjamin Stein contributed to this report.
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Judge Feuerstein’s mother, the late Judge Annette Elstein of the N.Y. Immigration Court was deeply beloved for her legal acumen, energy, kindness, and compassion by all who knew her, appeared before her, or had the privilege of learning from her. Judge Feuerstein was 75 years old.
The hearts of all of us in the Round Table of Former Immigration Judges go out to Judge Feuerstein’s family.
A federal judge on Friday ordered the Trump administration to fully restore an Obama-era initiative that protects undocumented immigrants brought to the U.S. as children from deportation, requiring officials to open the program to new applicants for the first time since 2017.
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Read the rest of the article at the link. Here’s Judge NICHOLAS G. GARAUFIS’s decision:
Here’s the most telling quote from that decision describing Wolfman’s continuing scofflaw shenanigans:
2 The court believes it made clear that the subsequent attempts of Admin- istrator Peter Gaynor to reinstate Kevin McAleenan’s unauthorized “November Delegation” and Mr. Wolf’s attempt to ratify his prior actions are dead letter. See Batalla Vidal, 2020 WL 6695076 at ,·,9_ Administrator Gaynor, undeterred, issued yet another “Succession Order” just hours after the court issued its opinion on November 14, and Mr. Wolf once again attempted to ratify his prior actions as Acting Secretary on November 16. (See Gaynor Order of Nov. 14, 2020 (Dkt. 348-2); Wolf Ratification of Nov. 16, 2020 (Dkt. 348-3).) Of course, for the exact same reasons, those doc- uments have no legal significance. Neither Administrator Gaynor nor Mr. Wolf currently possesses, nor have they ever possessed, the powers of the Acting Secretary of Homeland Security. See Batalla Vidal, 2020 WL 6695076 at *9.
Says it all. Obviously, ethics have become “optional,” at best, at DOJ and DHS. That’s certainly going to be a problem for the incoming Biden Administration.
This is “civil” litigation, where the Government and its corrupt officials like “Wolfman the Illegal” have no right to a “day in court” to defend their frivolous positions. For the last four years, Government lawyers have regularly been putting forth obvious pretexts, false narratives, and frivolous positions in defense of the regime’s racist immigration agenda. Basic “due diligence” on some of the outlandish assertions by regime officials has become a forgotten concept.
The breakdown in ethics, and the general unwillingness of Federal Judges to enforce ethical requirements on Government lawyers and Trump’s personal lawyers to the same extent they would on the private bar, has become a potentially debilitating legal scandal emerging from four years of kakistocracy!
For the last month, we have been subjected to a barrage of totally frivolous litigation openly pursued by Rudy and the other clowns on “the Big Loser’s” so-called “litigation team” designed for the dual purposes of 1) undermining our democracy, and, 2) assisting in a fundraising scam being conducted from the Oval Office to corruptly line the pockets of the Trump family. These aren’t “state secrets.” The fraud and disloyalty to our nation and our constitutional institutions is right out there in plain view!
Yet Rudy and his buddies aren’t in jail. Stunningly, after publicly conducting a nationwide losing scheme of frivolous litigation and lies, they are still licensed to practice law!
The good news: DACA kids get another shot! And, the incoming Biden-Harris Administration has vowed to protect them. The regime’s disgusting four-year White Nationalist effort to dump on them, led by notorious racists like “Gonzo” Sessions, Miller, Cooch, and Wolfman, has gone down in a blaze of scofflaw behavior and “malicious incompetence.” Like the “Big Loser.”
Accusing the Trump administration of being motivated by politics and not facts, a second U.S. federal judge is blocking the U.S. Department of Homeland Security from forcing tens of thousands of Haitians to return to Haiti by ending their temporary legal protection.
In a 145-page federal ruling, U.S. District Judge William F. Kuntz of the Eastern District of New York issued a nationwide temporary injunction preventing DHS from terminating Temporary Protected Status, TPS, for Haitians. Kuntz said 50,000 to 60,000 Haitians and their U.S.-born children would suffer “irreparable harm” if the legal protection ended and they were forced to return to a country that is not safe.
Kuntz’s detailed ruling came out of a lawsuit filed by Haitians in Florida and New York, challenging the Trump administration’s decision to end TPS granted to Haiti by the Obama administration after its 2010 devastating earthquake. The administration has rescinded the protection for Central America and some African nations as well, sparking several lawsuits around the country.
“It’s a sweeping indictment of the political manner in which the Trump administration at the very highest levels of the government illegally terminated Protected Status for Haitians,” said Miami immigration attorney Ira Kurzban, one of several lawyers who filed the lawsuit.
In October, a federal judge in California granted a temporary injunction blocking the administration from deporting Haitian TPS holders and others as their termination deadlines approach. U.S. District Judge Edward Chen granted the temporary injunction as part of a California lawsuit filed by lawyers on behalf of TPS recipients from Haiti, Nicaragua, El Salvador and Sudan who have U.S.-born children. The decision is being appealed by the government.
Kurzban noted that unlike the California case, which had not yet gone to trial when Chen issued his decision, Kuntz’s decision is the result of a full-blown trial. The New York lawsuit was the first of the five to go to trial.
“It’s far more detailed in its reasoning in respect to why what the government did was completely illegal,” Kurzban said of Kuntz’s decision. “It found findings on discrimination. … It found very clearly that the government’s decision was not only an arbitrary decision, but they violated their own procedures in reaching the conclusion that they reached.
“This is a direct and very detailed account of how the government acted in a completely arbitrary way,” he added.
During the trial, lawyers for the plaintiffs argued that then-Acting DHS Secretary Elaine Duke violated procedures and TPS holders’ due process when she ended the program for Haiti. They also cited emails and other internal government documents, including Duke’s handwritten November 2017 notes, to bolster the plaintiffs’ argument: that the White House was not interested in the facts about conditions in Haiti as DHS officials mulled over whether to continue to shield up to 60,000 Haitians from deportations, and Duke was under repeated pressure to terminate the program.
The decision, the suit alleged, was also rooted in the president’s “racially discriminatory attitude toward all brown and black people.”
“Clearly political motivations influenced Secretary Duke’s decision to terminate TPS for Haiti,” Kuntz said in his findings. “A TPS termination should not be a political decision made to carry out political motivations. Ultimately, the potential political ramifications should not have factored into the decision to terminate Haiti’s TPS.”
Kuntz said he could not issue a final injunction, only a temporary one, because Haiti’s TPS designation, which was supposed to end on July 22 but was recently extended by DHS until January 2020 due to the legal challenges, has not yet expired.
Steve Forester, an immigration advocate who has been championing the rights of Haitians enrolled in the TPS program, said it was “a victory demonstrating the government’s unlawful and unconstitutional behavior in reaching its decision to terminate Haiti TPS.”
“It’s a resounding condemnation of unlawful government behavior,” added Forester, who works as policy coordinator for the Boston-based Institute for Justice & Democracy in Haiti.
The government is expected to appeal.
Read more here: https://www.miamiherald.com/news/nation-world/world/americas/haiti/article229151574.html#storylink=cpy
The Trump Administration plans to tie up the Federal Courts with more frivolous litigation based on their knowingly and intentionally unlawful actions. That’s even as today, Trump refuted reports that he had discarded the idea of unlawfully “dumping” asylum applicants on so-called “sanctuary cities” as punishment to Democrats who have opposed his lawless regime. The Administration’s own lawyers say what Trump wants to do is illegal.
The lies come so fast and furious from Trump and his cronies that the White House “flacks” can’t even keep their fictional “cover stories” straight.
This morning, the trial begin in Saget v. Trump, before District Judge William Kuntz in the Eastern District of New York. As your Brooklyn observer, I attended the opening hours of what is likely to be a two or three day trial.
The basis for the case is the Trump administration’s termination of Temporary Protected Status (“TPS”) for Haitians who have been present in the U.S. since January 12, 2011, and remain unable to return due to conditions in that country following a massive earthquake in 2010, a 2016 hurricane, and a major cholera epidemic. 59,000 Haitians in the U.S. are presently in TPS status, a number too large for the Haitian government to presently absorb if returned en masse.
TPS is not asylum, and offers no permanent status in this country. It was created by Congress in 1990 to afford blanket protection to nationals of countries to which return is currently untenable for a variety of reasons, including armed conflict, natural disaster, rampant disease, or the inability of the country to absorb the mass repatriation of its nationals. Such designation is granted in intervals of 6 to 18 months, and is reviewed by the Department of Homeland Security (“DHS”) at least 60 days before the end of each designated period. The law only allows TPS status to be terminated where such review finds that the conditions for designation no longer exist in the country; otherwise, the period of TPS is to be extended. In the case of Haiti, after being designated for TPS in early 2010, such designation was extended in 18-month increments continually until the coming of the Trump Administration in 2017.
DHS, within its subcomponent, USCIS, has a Country Conditions Unit. I know that unit’s director, LeRoy Potts, and met with him and some of his senior staff when I oversaw EOIR’s country conditions database during my time at the BIA. They are knowledgeable, fair-minded, and in my experience, issued accurate reports free of political influence. The Country Conditions Unit is generally consulted in TPS decisions. As it had in the past, the Unit again drafted a report finding serious problems in Haiti that would call for an extension of TPS.
However, as the Plaintiffs’ counsel noted in his opening statement, Robert T. Law, previously director of the vehemently anti-immigration lobby group ironically known by the acronym FAIR, who under the Trump administration was made a senior policy advisor to USCIS (which is mind-boggling on its own), decided that the Country Condition Unit’s memo was “overwhelmingly weighted for extension which I do not think is the conclusion we are looking for.” According to petitioner’s counsel, Law edited the document (with the blessing of the USCIS chief policy strategist, Kathy Nuebel Kovarik) in 35 minutes, without further research. https://nationaltpsalliance.org/wp-content/uploads/2018/08/DPP-3349-EX-3.pdf According to the opening statement, the only research requested by the administration was for evidence that Haitians in the U.S. had criminal records or received public assistance, a clear attempt to discredit a nationality using racial stereotypes. Plaintiff’s counsel stated that the USCIS Country Conditions Unit characterized DHS’s final version of the report used to justify its termination of TPS for Haiti as “complete fiction.”
The Plaintiffs called as their first witness Ellie Happel, an expert on country conditions in Haiti and resident of that country from 2011 to 2017, who took apart the DHS memo sentence by sentence. For example, Happel explained the meaninglessness of DHS’s claim that 98 percent of internal displacement camps (“IDPs”) in Haiti have been closed. Happel stated that the majority who left the camps did so due to actual or threatened forced eviction, and many did not return to durable housing. When one settlement, Canaan, was decertified as an IDP camp, it statistically eliminated 50,000 people from the list of those internally displaced. However, those 50,000 people continue to live on the site of the former camp, a windswept, previously uninhabited land far from government services.
Happel cited a report (also referenced in the USCIS report) that a minimum of 500,000 homes would have to be constructed to meet the housing needs of the Haitian population. Happel also testified in convincing detail to continued food insecurity, political instability, an economy marred by a 2 billion dollar debt to Venezuela caused by misappropriation or embezzlement of funds by government officials, and a continued susceptibility to cholera following one of the worst epidemics of the disease in recent history.
Why would DHS’s leadership go to such lengths to fabricate a fictitious report to justify returning 59,000 Haitians to such conditions before it was advisable to do so? The plaintiffs pointed to the answer in the statements of President Trump himself, made a few months earlier to members of Congress, in which he referenced predominantly black nations as “shithole countries” (the presiding judge insisted on the use of the unedited quote), questioned “why do we need more Haitians? (whom he previously claimed “all have AIDS”); and stated his preference for immigrants from places such as Norway. The government’s attorney somehow managed to keep a straight face when claiming in response that DHS’s acting Secretary had reached the decision to terminate independent of Trump’s opinions.
Sadly, Haitians have suffered a long history of unfair treatment under our country’s immigration laws. In his excellent 1998 law review article “Race, the Immigration Laws, and Domestic Race Relations: A ‘Magic Mirror’ Into the Heart of Darkness,” Prof. Kevin R. Johnson wrote “No U.S. policy approached…the government’s extraordinary treatment of Black persons fleeing the political violence in Haiti.” When the U.S. Supreme Court in its 1993 decision in Sale v. Haitian Centers Council, Inc., upheld the policy initiated by President George H.W. Bush, and surprisingly continued under President Clinton, of repatriating intercepted Haitians without first screening the returnees to see if they qualified for refugee status, Justice Brennan argued in dissent that the Haitian refugees “demand only that the United States, land of refugees and guardian of freedom, cease forcibly driving them back to detention, abuse, and death. We should not close our ears to it.”
Sadly, 25 years later, our nation’s most openly racist president continues to advocate for policies of extraordinary cruelty towards Haitians. And seemingly without embarrassment, many of his underlings are happy to go to extreme lengths to carry out such policies, the admirable exception being the USCIS Country Conditions Unit.
It was heartwarming to see the large team of lawyers, paralegals, and expert witnesses united in Judge Kuntz’s courtroom to continue to fight against such cruelty. Among those in attendance were Ira Kurzban, one of the plaintiff’s lawyers, and Michael Posner, founder and former director of Human Rights First, both of whom were early defenders of Haitian rights in the 1980s. To see them working alongside a younger generation of attorneys and experts, such as Happel, the director of NYU Law School’s Haiti Project, and Florida attorney Kevin Gregg reminded this aging attorney that the struggle for immigrants’ rights will be passed on to most capable hearts and hands.
Copyright 2019 Jeffrey S. Chase. All rights reserved.
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Tal Kopan has unearthed some of this in an earlier post based on documents obtained under the FOIA. https://wp.me/p8eeJm-2rC
Gotta wonder about the ethics of DOJ lawyers defending the indefensible in Federal Court.
(CNN)A second federal judge Tuesday has temporarily blocked the Trump administration from ending the Deferred Action for Childhood Arrivals program.
Success for Harvard medical students in DACA could mean their parents are deported
Success for Harvard medical students in DACA could mean their parents are deported
Judge Nicholas G. Garaufis of the US District Court for the Eastern District of New York ruled that DACA participants and states are likely to succeed in their challenge that the way President Donald Trump terminated the Obama-era program was arbitrary and capricious.
Trump last year announced his plan to end DACA, the policy that allowed undocumented immigrants brought to the US as children to stay in the country, effective March 5. That deadline has become central in the congressional debate over immigration, but Democrats and Republicans are nowhere near a breakthrough.
Tuesday’s ruling, combined with a ruling from a California judge last month, means the program could end up going beyond the March 5 date. The ruling means DACA recipients can renew their status, but the administration will not have to hold the program open to those who never applied.
“Defendants indisputably can end the DACA program,” Garaufis wrote, referring to the Trump administration. “The question before the court is thus not whether defendants could end the DACA program, but whether they offered legally adequate reasons for doing so. Based on its review of the record before it, the court concludes that defendants have not done so.”
The judge said that the decision to end the program was based in part on the “plainly incorrect factual premise” that the program was illegal.
“Today’s ruling shows that courts across the country agree that Trump’s termination of DACA was not just immoral, but unlawful as well,” said Karen Tumlin of the National Immigration Law Center.
This week the Supreme Court is set to meet behind closed doors to discuss whether to take up the Trump administration’s appeal of the related case.
The Justice Department said it maintains that the administration acted “within its lawful authority” in deciding to end DACA and will “vigorously defend this position.”
“DACA was implemented unilaterally after Congress declined to extend these benefits to this same group of illegal aliens. As such, it was an unlawful circumvention of Congress,” the Justice Department said in a statement. “Promoting and enforcing the rule of law is vital to protecting a nation, its borders, and its citizens.”
Impact on immigration negotiations
Sen. Thom Tillis, R-North Carolina, urged lawmakers to “focus” on March 5, despite the two district court rulings blocking the DACA drawdown, but acknowledged there will be more time.
“We should still focus on the March 5 date,” Tillis said on Fox News Tuesday afternoon. “The reality is, unless there’s any action by the Supreme Court, looks like we have some number of weeks following March 5 to solve the problem.”
Judge brought up “Norway” comments
In fiery oral arguments last month, Garaufis gave a blistering critique of what he called the President’s “recurring, redundant drumbeat of anti-Latino commentary.”
“It’s not just an ad hoc comment that was overheard on an open mic,” the judge said. “It’s not just that somebody at INS said something derogatory about Mexicans. This came from the top.”
Garaufis was responding to a question regarding Trump’s comments in a closed-door meeting with senators in which the President asked why people from Haiti and more Africans were wanted in the US and added that the US should get more people from countries like Norway.
CNN’s Laura Jarrett contributed to this report.
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Who knows how this eventually will end if Congress doesn’t solve the problem? I certainly can imagine a conservative majority of the Supremes cooking up a way to empower Trump and dump on the Dreamers.
But, no matter how this comes out, it’s never been about the “rule of law,” border security, or protecting Americans. Indeed, every commentator who isn’t Jeff Sessions or one of his White Nationalist xenophobic buddies agrees that ending DACA and removing “Dreamers” would make America a worse place in every possible way.
No, it’s always been about White Nationalism, racism, xenophobia, dividing America, and the general alt right “agenda of hate and intolerance” which has been what Sessions and those like him are all about. And, he’s not even a very good lawyer, taking most of his bogus so-called “legal arguments” off of “cue cards” prepared for him by restrictionist interest groups.
And racist, xenophobic statements by Trump himself continue to undermine the DOJ attorneys’ arguments that there is some type of “rational basis” for Trump immigration policies.
“The Department of Homeland Security is “actively considering” delaying a looming deadline for so called-Dreamers to renew their status under the Deferred Action for Childhood Arrivals, a Justice Department attorney said at a court hearing Thursday, according to attendees and a government official.
Deputy Assistant Attorney General Brett Shumate cited the hurricanes that recently hit Texas, Florida and nearby states as grounds for the potential delay to the Oct. 5 deadline, while noting that no final decision had been made, an official said.
Word of the possible delay came as a federal judge signaled that he might postpone the cut-off date unless the Trump administration acted first, attendees at a Thursday court hearing said.
During the session, in federal court in Brooklyn, U.S. District Court Judge Nicholas Garaufis repeatedly labeled the deadline “arbitrary” and said he saw little harm in pushing it back, according to advocates.
“He focused quite a bit on the October 5 deadline and called it arbitrary,” said David Chen, a Yale law student helping litigate the issue, “and said essentially that so many people who are DACA recipients would face quite a lot of harm and experience quite a lot of chaos if they were unable to renew by the deadline.”
The Trump administration announced last week that it was winding down the Obama-era program known DACA, a mechanism used to give quasi-legal status and work permits to about 800,000 undocumented foreigners who arrived in the U.S. as children.
Homeland security officials announced that people whose work permits are set to expire between Sept. 5, 2017, and March 5 of next year must submit a renewal application by Oct. 5 to receive another two-year permit. After March 5, no more DACA permits will be granted, leading to a two-year phase-out of the program, officials said.”
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Read the complete article at the link.
Judges hate it when they can’t talk the USG into “voluntarily” doing the right thing!
“In Brooklyn, after a brief hearing in front of a small audience that filtered in from a crowd of hundreds outside, Donnelly determined that the risk of injury to those detained by being returned to their home countries necessitated the decision. She seemed to have little patience for the arguments presented by the government, which focused heavily on the fact that the two defendants named in the lawsuit had already been released. At one point, she visibly lost patience with a government attorney who was participating by phone.
Donnelly noted that those detained were suffering mostly from the bad fortune of traveling while the ban went into effect. “Our own government presumably approved their entry to the country,” she said at one point, noting that, had it been two days prior, those detained would have been granted admission without question.”
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I feel the Judge’s pain with the Government’s disingenuous arguments. Implementing such a draconian measure on a weekend with no notice is just plain stupid. And arguing that the Government would somehow be harmed by agreeing to stay the removal of meticulously pre-screened individuals with valid visas long enough for the Judge to fully consider the substantial constitutional arguments presented is beyond ludicrous.
I also feel for the poor AUSA stuck defending this kind of nonsense by an obstinate Administration that knows no compromise. I had to help defend a few of these in my Government career. At the time of my “first retirement” from the DOJ, one DOJ litigator said that he would miss me because I “was the best ever at providing reasonable explanations for my agency’s fundamentally irrational policies.”
The temporary restraining order issued by the Judge does not decide the merits of the dispute. It merely maintains the status quo so that the Judge can decide the case after full briefing and argument by the parties at a time other than a Saturday night. However, in addition to finding irreparable harm, Judge Donnelly also found a “strong likelihood” that the individual plaintiffs would prevail on their arguments based on Constitutional Due Process and Equal Protection. A copy of the order is at the link below. Stay tuned.
