Category: Judicial Review

AN “OPEN LETTER PROPOSAL” FROM TWO UW LAW ‘73 RETIRED JUDGES — We’ve Spent 90+ Collective Years Working To Improve The Quality & Delivery Of Justice In America On Both The State & Federal Levels, In The Private & Public Sectors — What We’re Seeing Now Is Shocking, Heartbreaking, Inexcusable, & Unnecessary — It’s Time For Legislators & Policy Makers To Start Listening To Those Of Us With New Ideas Based On “Real Life” Experiences & Observation!

Thomas Lister
Hon. Thomas Lister
Retired Jackson County (WI) Circuit Judge
Me
Me

A CONCEPTUAL PROPOSAL FOR AN AUXILIARY IMMIGRATION JUDICIARY

 

By

 

Paul Wickham Schmidt, Retired U.S. Immigraton Judge and Former Chair, U.S. Board Of Immigration Appeals

 

&

 

Thomas Lister, Retired Wisconsin Circuit Judge

 

 

 

Drawing on our judicial expertise gained over decades of working in both Federal and State judicial system, we respectfully set forth a concept for those working in the legislative, political, legal, and judicial systems to use and further develop to promote better, fairer, and more efficient judicial decision-making and to make better use of existing and future judicial resources both in and outside the U.S. Immigration Court system.

To save time, and since neither of us purports to be a legislative draftsperson, instead of submitting a “draft bill,” or the “outline” of such a bill, we advance an idea and the conceptual and practical justifications for it for your consideration and future use in drafting actual legislation.

 

No knowledgeable individual thinks the current dysfunctional U.S. Immigration Court system can continue without imploding. Just feeding more new, permanent Immigration Judges into an unfair and broken system actually is making things worse as well as outrageously wasting our taxpayer money at a time when deficits are skyrocketing.

 

All too many newly hired Immigration Judges appear to be neither the best qualified to be judges nor, even if qualified on paper, properly trained in how to deliver “full due process with efficiency” under the immigration laws and in strict compliance with the Due Process Clause of our Constitution.

 

On the other hand, many retired judges from other Federal and State systems have proven expertise and track records that would allow a competent judicial administrator (there are, to our knowledge, NONE of these currently in DOJ or EOIR) to determine if they are suitable for emergency service and how they could best be trained to effectively and efficiently use their skills as “Auxiliary Immigration Judges” to augment the current and future Immigration Judiciary. 

 

Moreover, since most retired Federal and State judges already have adequate pensions or other means of support, asking them to volunteer to serve on the basis of limited compensation, or even just reimbursement for out of pocket expenses, would not be unreasonable.

 

We are offering this idea as a way in which those of us with lifetime legal and judicial expertise can use it to improve the delivery of justice in America; it is not intended as a means of enriching or offering alternative full-time employment to current retired judges, from any system.

 

To name just a few areas of “low hanging fruit,” we believe that:

 

•       Most bonds;

•       Initial “Master Calendars” (arraignments);

•       Master Calendar scheduling for Individual Hearings;

•       Motions Calendars;

•       “Status” Calendars;

•       Stipulated Final Order and Withdrawal Calendars;

•       Individual Hearings on Cancellation of Removal for long-time lawful and unlawful residents;

•       Uncontested Adjustments of Status and other types of equitable waivers; and

•       Voluntary Departure as the sole application cases

 

have elements in common with most other types of judicial work.

 

Using Auxiliary Judges for such cases would allow those judges, from any Federal or State system, with sound work records, that is, those with impeccable reputations for fairness, professionalism, judicial efficiency, and impartiality, to handle these types of immigration adjudications with a modest amount of additional training and in close consultation and cooperation with the sitting Immigration Judges in a particular location.

 

In this respect, our emphasis would always be on aiding existing, sitting U.S. Immigration Judges, in cooperation with them and at their request, in the ways those sitting judges deem most helpful, fair, and effective.

 

It would never be on fulfilling inappropriate and unethical “production quotas,” numerical goals, or pandering to interests who want to use the judicial system to fulfill political or law enforcement objectives inconsistent with Due Process, fundamental fairness, or sound judicial administration.

 

We do not propose that “Auxiliary Judges” ever work directly for or under the supervision of non-judicial political officials as is now, disturbingly, the case in our Immigration Court System. Indeed, the current unwarranted attack on the independence and professionalism of Immigration Judges by unqualified political officials seeking to “decertify” the Immigration Judges’ professional association, the National Association of Immigration Judges, is a prime example of the type of counterproductive activity in which “Auxiliary Judges” should never be allowed to participate, in any way.

 

By contrast with the types of more straightforward judicial work described above as potential “low hanging fruit,” Asylum Cases, Withholding of Removal Cases, and applications for protection under the Convention Against Torture involve complex legal and factual issues. These are matters that should NOT be delegated to retired judges from other fields.

 

Indeed, one huge advantage of our proposal is that it would allow existing and future Immigration Judges to spend adequate time (a contested fair hearing on any of these aforementioned protection matters would take a well-trained judge 3-4 hours, minimum) on these types of cases and to receive more and better training on how to fairly and timely adjudicate, consistent with Constitutional Due Process, claims for protection under these laws and International Conventions.

 

Of course, there would be some administrative costs involved with training and maintaining a list of those willing to serve as “Auxiliary Immigration Judges.” But, they pale in relation to the costs of continuing to throw new permanent positions into a badly broken and dysfunctional system.

 

Indeed, some, such as the ABA Commission on Immigration, have observed that additional Immigration Judge hiring under current conditions has demonstrably been a waste of taxpayer money that has actually made the system worse and further impaired the delivery of Due Process to those vulnerable individuals whose lives depend on fair, professional, and efficient administration of Due Process and fundamental fairness in our Immigration Courts.

 

Sadly, we surmise that significant amounts of the “assembly line (in)justice” currently being encouraged and delivered to represented individuals in today’s Immigration Courts will eventually have to be re-adjudicated by orders of the Article III reviewing courts because of legal and/or factual errors. The only reason we don’t include unrepresented individuals in our equation is that these, unfortunately, are often “railroaded” out of our country without realistic access to the Article III Courts.

 

As lawyers with a combined 90 years of experience working in State and Federal justice systems, as prosecutors, judges, private litigators, educators, and government officials, at both the national and local level, we cannot in good conscience watch the continued deterioration of justice in the Immigration Courts while constructive ideas for improvements and efficiency and fairness are ignored or left unaddressed.

 

The concept of using retired State and Federal Judges outside the Immigration System to do certain types of cases to augment justice and relieve the incredible stress on full time Immigration Judges, in times of emergency or workload surges, without all the problems inherent in the current hiring of permanent judges by the DOJ, easily could be incorporated into one of the “Independent Article I Immigration Court” bills being advocated and advanced by groups such as the ABA, FBA, AILA, and the National Association of Immigration Judges (“NAIJ”).

 

The current system is dying before our eyes. We need to “pull out all the stops,” consider “every potential concept,” and utilize “positive professional creativity” (the antithesis of the negative energy devoted to cruel and counterproductive “gimmicks” and outright illegal actions) designed to enhance, rather than denigrate, Due Process, fundamental fairness, and judicial efficiency without sacrificing quality.

 

It is in that spirit that we respectfully request those involved in legislative reform of our Immigration Court system to consider incorporating our concept of an “Auxiliary Immigration Judiciary” into overall legislative proposals for positive reform of the Immigration Courts now being advanced by all of the leading voices in the field.

Respectfully submitted,

Thomas Lister, Middleton, WI

Paul Wickham Schmidt, Alexandria, VA

August 19, 2019

 

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JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”

 

New from JMHS | An Overview and Critique of US Immigration and Asylum Policies in the Trump Era
View this email in your browser
A publication of the Center for Migration Studies
Donald Kerwin, Executive Editor
John Hoeffner and Michele Pistone, Associate Editors

An Overview and Critique of US Immigration and Asylum Policies in the Trump Era

By Paul Wickham Schmidt (Georgetown Law)

This paper critiques US immigration and asylum policies from perspective of the author’s 46 years as a public servant. It also offers a taxonomy of the US immigration system by positing different categories of membership: full members of the “club” (US citizens); “associate members” (lawful permanent residents, refugees and asylees); “friends” (non-immigrants and holders of temporary status); and, persons outside the club (the undocumented). It describes the legal framework that applies to these distinct populations, as well as recent developments in federal law and policy that relate to them. It also identifies a series of cross-cutting issues that affect these populations, including immigrant detention, immigration court backlogs, state and local immigration policies, and Constitutional rights that extend to non-citizens. It makes the following asylum reform proposals, relying (mostly) on existing laws designed to address situations of larger-scale migration:

  • The Department of Homeland Security (DHS) and, in particular, US Citizenship and Immigration Services (USCIS) should send far more Asylum Officers to conduct credible fear interviews at the border.
  • Law firms, pro bono attorneys, and charitable legal agencies should attempt to represent all arriving migrants before both the Asylum Office and the Immigration Courts.
  • USCIS Asylum Officers should be permitted to grant temporary withholding of removal under the Convention Against Torture (CAT) to applicants likely to face torture if returned to their countries of origin.
  • Immigration Judges should put the asylum claims of those granted CAT withholding on the “back burner” — thus keeping these cases from clogging the Immigration Courts — while working with the UNHCR and other counties in the Hemisphere on more durable solutions for those fleeing the Northern Triangle states of Central America.
  • Individuals found to have a “credible fear” should be released on minimal bonds and be allowed to move to locations where they will be represented by pro bono lawyers.
  • Asylum Officers should be vested with the authority to grant asylum in the first instance, thus keeping more asylum cases out of Immigration Court.
  • If the Administration wants to prioritize the cases of recent arrivals, it should do so without creating more docket reshuffling, inefficiencies, and longer backlogs

Download the PDF of the article

 

Read more JMHS articles at http://cmsny.org/jmhs/

Want to learn more about access to asylum on the US-Mexico border? Join the Center for Migration Studies for our annual Academic and Policy Symposium on October 17.

 

 

 

 

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

My long-time friend Don Kerwin, Executive Director of CMS, has been a “Lt. General of the New Due Process Army” since long before there even was a “New Due Process Army” (“NDPA”). Talk about someone who has spent his entire career increasing human understanding and making the world a better place! Don is a great role model and example for newer members of the NDPA, proving that one can make a difference, as well as a living, in our world by doing great things and good works! Not surprisingly, Don’s career achievements and contributions bear great resemblance to those of our mutual friend, the late Juan Osuna.

 

So, when Don asked me to consider turning some of my past speeches about our immigration system and how it should work into an article to honor Juan, I couldn’t say no. But, I never would have gotten it “across the finish line” without Don’s inspiration, encouragement, editing, and significant substantive suggestions for improvement, as well as that of the talented peer reviewers and editorial staff of JMHS. Like most achievements in life, it truly was a “team effort” for which I thank all involved.

 

Those of you who might have attended my Boynton Society Lecture last Saturday, August 10, at the beautiful and inspiring Bjorklunden Campus of Lawrence University on the shores of Lake Michigan at Bailey’s Harbor, WI, will see that portions of this article were “reconverted” and incorporated into that speech.

 

Also, those who might have taken the class “American Immigration, a Cultural, Legal, and Anthropological Approach” at the Bjorklunden Seminar Series the previous week, co-taught by my friend Professor Jenn Esperanza of The Beloit College Anthropology Department, and me had the then-unpublished manuscript in their course materials, and will no doubt recognize many of the themes that Jenn and I stressed during that week.

 

Perhaps the only “comment that really mattered” was passed on to me by Don shortly after this article was released. It was from Juan’s wife, the also amazing and inspiring Wendy Young, President of Kids In Need of Defense (“KIND”):“Juan would be truly honored.”

Donald M. Kerwin
Donald M. Kerwin
Executive Director
Center for Migration Studies
Juan P. Osuna
Juan P. Osuna (1963-2017)
Judge, Executive, Scholar, Teacher, Defender of Due Process
Wendy Young
Wendy Young
President, Kids In Need of Defense (“KIND”)
Me
Me

 

PWS

 

08-19-19

 

 

 

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  3. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  4. EOIR TARGETS UNACCOMPANIED KIDS FOR DEPORATION RAILROAD!

HON. JEFFREY CHASE: Barr Intended To Attack The “Quintessential Particular Social Group In Society” — The Family — As Part Of His Restrictionist Deconstruction of Asylum Protections For Vulnerable Refugees — But, Can He Really Rewrite Reality? — Chase On Matter of L-E-A-!

Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog

https://www.jeffreyschase.com/blog/2019/8/11/l-e-a-how-much-did-the-ag-change

Aug 11 L-E-A-: How Much Did the AG Change?

In June 2018, the Attorney General issued his precedent decision in Matter of A-B-.  The AG intended his decision to lead to the denial of asylum claims based on domestic violence and gang violence by asylum officers, immigration judges, the BIA, and the circuit courts.  The decision also aimed to compel asylum officers to find those arriving at the southern border to lack the credible fear necessary for entry into the court system, allowing for their immediate deportation.

However, the decision failed to achieve these goals.  A U.S. District Court decision, Grace v. Whitaker, prohibited USCIS from applying A-B- in credible fear determinations. And Immigration Judges have continued to grant significant numbers of domestic violence claims, concluding that A-B- did not prevent them from doing so, but only required their decisions to contain an in-depth analysis of their reasoning.  The case of A-B- herself presently remains pending before the BIA.

More recently, the Attorney General took the same approach to the question of whether family may constitute a particular social group.  While once again, the administration’s goal is to prevent such claims from passing credible fear interviews and from being granted asylum, the effort also seems likely to fail.

                         *                *                    *

“There can, in fact, be no plainer example of a social group based on common, identifiable and immutable characteristics than that of the nuclear family.  Indeed, quoting the Ninth Circuit, we recently stated that ‘a prototypical example of a “particular social group” would consist of the immediate members of a certain family, the family being a focus of fundamental affiliational concerns and common interests for most people.'”

The above language is from a 1994 decision of the U.S. Court of Appeals for the First Circuit, Gebremichael v. INS, 10 F.3d 28 (1st Cir. 1994).  It pretty much reflects the view of every circuit court over the past 25 years.  Since Gebremichael, the BIA has added additional requirements of particularity and social distinction to the particular social group (“PSG”) requirements in a series of six precedent decisions issued between 2006 and 2014.  But as a recent practice advisory of CLINIC points out, the First, Second, Third, Fourth, Sixth, Seventh, Eighth, and Ninth Circuits have all recognized that family can constitute a PSG, and all have reiterated that opinion in decisions issued in 2014 or later, meaning that those courts have not found the BIA’s subsequent requirements to alter their longstanding view on the matter.

For this reason, when L-E-A- was first decided by the BIA in 2017, the parties were not in disagreement on this point – the issue had acquired a “the sky is blue” certainty.  The issue before the BIA was rather about nexus – i.e.  what was required to show that one’s feared persecution was in fact “on account of” such family membership.  The Board settled on a highly restrictive standard for establishing nexus, illustrated by the single example of the Romanov family in 1918 Russia.

Possibly fearing an influx of asylum-seeking Romanovs, Matthew Whitaker, during his very brief tenure as Acting Attorney General, felt the need to certify the decision to himself.  And on July 29, his successor, WIlliam Barr, issued a decision very reminiscent of A-B-.

As in A-B-, Barr justified vacating the Board’s decision because it relied on the parties’ stipulation to the issue in question.   In Barr’s view, this caused the resulting decision to lack the rigorous analysis deserving of a precedent decision.  While it remains unclear why rigorous legal analysis is required where everyone agrees to the correctness of the assertion (do we require rigorous mathematical analysis to the proposition that 2+2 = 4?), it should be noted that unlike Matter of A-R-C-G-, which was the single precedent decision holding that victims of domestic violence could be eligible for asylum, there is 25 years worth of circuit court case law on this point, plus the BIA’s own statement in Matter of Acosta that kinship could be a basis for a PSG, which dates to 1985, a point that the BIA reaffirmed over the next three decades, in Matter of C-A- (2006), and then, by reference to that case, in Matter of M-E-V-G- (2014).  Barr’s excuse is that, in his view, multiple circuits “have relied upon outdated dicta from the Board’s early cases.”

As in A-B-, the AG’s decision affects no change in the applicable legal standard.  The holding is quite narrow, simply overruling the part of the BIA’s decision discussing the cognizability of family as a PSG.  The decision doesn’t preclude such findings, but rather requires adjudicators to spend more time on each case, providing a detailed, step-by-step analysis before granting relief.  This is a critical point, as at least one IJ has said that L-E-A- has closed the door on family-based PSGs.  IJs had a similar reaction in the immediate aftermath of A-B-, stating that they can no longer grant domestic violence claims, only to realize otherwise over time.  Barr specifically states that his decision “does not bar all family-based social groups from qualifying for asylum,” adding “[t]o the contrary, in some societies, an applicant may present specific kinship groups or clans that, based on the evidence in the applicant’s case, are particular and socially distinct.”  He also cautions adjudicators to “be skeptical of social groups that appear to be “defined principally, if not exclusively, for the purposes of [litigation] . . . without regard to the question of whether anyone in [a given country] perceives [those] group[s] to exist in any form whatsoever.”  These are restatements of long-existing law.  Of course, the concept of family was not artificially created for litigation purposes.

In L-E-A-, Barr specifically referenced the canon of ejusdem generis, which the BIA applied in Matter of Acosta to conclude that a particular social group should not be interpreted more broadly than the other four terms (race, religion, nationality, and political opinion) that surround it in the statute.1  As the canon was applied to counter the argument that the legislative intent of the PSG ground was to serve as a broad, catch-all “safety net” for those deserving of protection but unable to fit within the other four protected categories, the AG is happy to rely on the premise in his decision as well.

However, ejusdem generis is a two-edged sword.  In the same way as it prevents the PSG category from being interpreted more broadly than its fellow protected grounds, it similarly prevents those other categories from being interpreted more broadly than PSG.

And therein lies the flaw in Barr’s argument that “as almost every [noncitizen] is a member of a family of some kind, categorically recognizing families as particular social groups would render virtually every [noncitizen] a member of a particular social group. There is no evidence that Congress intended the term “particular social group” to cast so wide a net.”

Every noncitizen is also a member of a race and a nationality.  And most believe in a religion of some type.  But no court has suggested that those categories are therefore too wide to form a protected ground for asylum purposes.  Barr fails to explain that belonging to a protected ground does not make one a refugee; everyone in the world belongs to one or more such categories; many of us belong to all five.  Asylum requires persecution (either suffered in the past, or a sufficient likelihood of suffering in the future), as well as a showing that such persecution was motivated more than tangentially in the persecutor’s view by the victim’s possessing one or more of the protected bases.  When one also considers how extreme the harm must be to be constitute persecution; that such harm must either be by the government, or by a person or group that the government is unable or unwilling to control, and that the asylum seeker must not be able to avoid such harm through reasonable relocation to a safer place within their own country, it is not an easy standard to satisfy.

Barr then further errs in claiming that the test for social distinction is not whether the nuclear family carries societal importance (which in fact is the test), but rather, whether the applicant’s “specific nuclear family would be ‘recognizable by society at large.’”  In that sentence, Barr supported his erroneous claim by misquoting Jeff Sessions in Matter of A-B-, by omitting the word “classes.”  The actual quote, “social groups must be classes recognizable by society at large,” actually supports the argument that nuclear families would enjoy social distinction.  By manipulating the language of case law, Barr attempts to equate “social distinction” with fame.  Under his proposed interpretation, an asylum seeker must be a Kardashian to satisfy the PSG standard, and a Romanov to then prove nexus.  (While such interpretation is clearly incorrect, I am nevertheless coining the term “Czardashian” here).

The true test for social distinction is whether the proposed group is consistent with how society divides itself.  And families are the most basic way that society divides itself into groups.  We are often identified in society as someone’s child, spouse, parent, or sibling.  When we meet someone with a familiar last name, the first thing we ask is “are you related to so and so?”  The reason we care to ask such question is precisely because families are socially distinct.  By comparison, no one has ever asked me if I’m a member of the group of “tall, gray-haired, left-handed immigration lawyers with glasses,” because that is the type of artificially concocted group that in no way reflects how society divides itself.

Barr’s statement that “unless an immediate family carries greater societal import, it is unlikely that a proposed family-based group will be ‘distinct’ in the way required by the INA for purposes of asylum” is nonbinding dicta, expressing the likelihood of success in claims not before him.2  Nevertheless, his statement also overlooks an important aspect of PSG analysis: the impact of persecution on public perception.  Social distinction is measured not in the eyes of the persecutors, but of society.  But as UNHCR points out in its 2002 Particular Social Group Guidelines, at para. 14, even though left-handed people are not a particular social group, “if they were persecuted because they were left-handed, they would no doubt quickly become recognizable in their society as a particular social group.”  So even if we were to accept Barr’s flawed premise that a regular, non-celebrity family lacks his misconstrued version of social distinction, as word spread of the targeting of its members, that family would gain social recognition pretty quickly.

And as CLINIC’s practice advisory astutely notes, societies accord social distinction to even non-famous families in its laws determining how property is inherited, or to whom guardianship of surviving children is determined.

Notes:

  1. For a highly detailed analysis of the Chevron deference test as applied to Matter of A-B-, including the use of ejusdem generis as a canon of construction in step one of Chevron, see Kelley-Widmer, Jaclyn and Rich, Hillary, A Step Too Far: Matter of A-B-, ‘Particular Social Group,’ and Chevron (July 15, 2019). Cornell Legal Studies Research Paper No. 19-30. Available at SSRN: https://ssrn.com/abstract=3410556 or http://dx.doi.org/10.2139/ssrn.3410556
  2. See CLINIC’s Practice Advisory at 3. Much thanks to CLINIC attorneys Victoria Neilson, Bradley Jenkins, and Rebecca Scholtz for so quickly authoring this excellent guide.

Copyright 2019 Jeffrey S. Chase.  All rights reserved.

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

There can be no doubt of Bill Barr’s anti-asylum bias, his poor lawyering skills, his lack of ethics, and his willingness to serve as a weapon of White Nationalist racist nonsense.  If you serve the cause like a toady, whether or not you “truly believe” becomes irrelevant. 

But, as Jeffrey points out, no matter how much the Barrs of the world would like to rewrite the law without going through the legislative or regulatory process, there is a long history of Article III Courts and the Immigration Courts themselves recognizing family-based asylum cases. 

There is also an irreducible truth staring Barr and his fellow restrictionists in the face: folks have been identifying themselves based on kinship ties from the beginning of history and other folks have been protecting, rejecting, joining, or excluding themselves from those family-based kinship groups since humans first walked the earth. Sometimes these processes have been peaceful, other times violent, sometimes cooperative, and sometimes coercive.

But, the reality is that family-based persecution happens every day of the week, through out our world.  In many many  instances it’s “at least one central reason” for the persecution.

Ironically, folks like Trump and Barr are doing their best to divide our country into as many hostile and sometimes violent, ethnic, racial and social groups as it can. But, in the end, whether within my lifetime or not, the truth will “eat up” the lies and false ideologies that drive Barr and the rest of the Trumpists. Sadly, however, by the time they are rightfully dislodged from power, too many will have died or been irrevocably harmed by their false doctrines and conscious disregard for human life, human decency, and well-established truths of human history.

PWS

08-17-19

Related posts:

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  3. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”
  4. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”

FRAUD, WASTE, & ABUSE @ “JUSTICE” – Barr & Co. Seek To Punish National Association of Immigration Judges (”NAIJ”) For Daring To Stand Up For Due Process & Judicial Independence!

https://www.nytimes.com/2019/08/10/us/immigration-judges-union-justice-department.html?searchResultPosition=1

Christina Goldbaum
Christina Goldbaum
Immigration Reporter
NY Times

Christina Goldbaum reports for the NY Times:

By Christina Goldbaum

  • 10, 2019

The Justice Department has moved to decertify the union of immigration judges, a maneuver that could muffle an organization whose members have sometimes been openly critical of the Trump administration’s immigration enforcement agenda.

The department filed a petition on Friday asking the Federal Labor Relations Authority to determine whether the union, the National Association of Immigration Judges, should have its certification revoked because its members are considered “management officials” ineligible to collectively organize, according to a Justice Department spokesman.

The move suggested escalating tensions between overwhelmed immigration judges desperate for greater resources and a Justice Department pushing them to quickly address a backlog of immigration cases.

“This is a misguided effort to minimize our impact,” said Judge Amiena Khan, vice president of the judges’ union, which has publicly criticized the use of a quota system in immigration court and other attempts to speed up proceedings.

“We serve as a check and balance on management prerogatives and that’s why they are doing this to us,” said Judge Khan.

Unlike other federal judges who are part of the judicial branch, immigration judges are appointed by the attorney general and are employees of the Justice Department. Though sitting judges are prohibited from speaking publicly about issues that could be considered political, representatives of the immigration judges’ union can speak publicly about Justice Department policies on behalf of its members.

This is not the first time an administration has challenged the organization. The Clinton administration also tried to decertify the immigration judges’ union, a move that the Federal Labor Relations Authority rejected, according to former immigration judges.

Both Judge Khan and the union president, Judge Ashley Tabaddor, have spoken out repeatedly against what they say is an attempt to turn immigration judges from neutral arbiters of the law to law enforcement agents enacting the White House’s policies. They have called for immigration judges to be independent of the Justice Department.

Last year, the union criticized the department’s quota system, which required immigration judges to complete 700 cases per year, as well as a move to bar judges from an administrative tool they had previously used to reduce their caseloads. The union says the focus on efficiency impedes judges’ ability to work through complicated cases and could affect the due process rights of immigrants in court.

The pressure to hear more cases more quickly amounts to “psychological warfare,” Judge Tabaddor said last year.

Addressing some of the union’s concerns, the Justice Department has tried to tackle the backlog, which now totals more than 830,000 cases, by hiring more immigration judges. Judges appointed by President Trump now make up 43 percent of the nation’s immigration judges, a larger share than under any of his five predecessors, according to a recent analysis by The Associated Press. A large number of his appointees are former military or Immigration and Customs Enforcement lawyers, the analysis found.

But that hiring has not been accompanied by other necessary support, Judge Khan said.

“I can’t work alone, I am reliant on support staff,” said Judge Khan. “Right now there are two judges to one support staff person,” which has delayed the progress of cases despite the additional judges, she said.

The judges’ union plans to officially respond to the Justice Department’s petition once it receives official notification from the Federal Labor Relations Authority.

If the attempt to decertify the union is successful, it could leave judges without recourse for their already overwhelming workload, judges said.

“The union won’t be able to help judges with overall working conditions at a time when most all judges would tell you working conditions are worse now than they have ever been,” said Paul Schmidt, a former immigration judge.

Judge Khan called the Justice Department’s petition part of “a systematic attack on unions” representing federal employees under the Trump administration. Last year, Mr. Trump signed a series of executive orders that rolled back the workplace role of unions for at least two million federal workers and made it easier to fire them. The administration said the move would make the government more efficient.

The Justice Department’s recent petition will most likely prompt an investigation by the Federal Labor Relations Authority, according to a department spokesman.

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

 

Seems like the investigation ought to be into ethical violations and attempts to misuse Federal labor laws by Bill Barr. A substantially identical challenge to the NAIJ was soundly rejected by the same agency, the FLRA, back in the late 1990’s under the Clinton administration.

 

Since then, over the strong objection of the NAIJ, the status of Immigration Judges has been even farther reduced to that of glorified “deportation clerks.” The idea that individuals whose little remining discretion has been removed have somehow morphed into “management officials” is both totally absurd and a confirmation that so-called “management officials” in the Federal Government under the Trump Administration have nothing to manage.

 

Seems like this clear abuse of our legal system by Barr and his cronies should be a subject for investigation by the House Judiciary Committee and would warrant commencement of impeachment proceedings against arrogant, anti-American scofflaw Bill Barr. Not that Barr hasn’t already been found in contempt of Congress and the American people – he has. He’s a disgusting character – a disgrace to public service and the legal profession.

 

I suppose he will escape accountability in his lifetime. But, the “Jefferson Davis of the Justice Department” will certainly receive the judgement of history against him for his betrayal of his country and his racist, White Nationalist misconduct clothed in a thin veneer of undeserved credibility based on his success in the corporate legal world. If anything, that a sleazy and corrupt character like Barr could prosper in the world of “white shoe corporate law” is an indictment of that system and its total lack of values and ethical standards.

 

Meanwhile, it appears that the actions of the NAIJ have been successful in striking a nerve among the DOJ kakistocracy. As with the corrupt, inept, and racist-infested DHS, the current inability of the DOJ as an institution to stand up to Barr’s dishonesty, corruption, and lawless behavior certainly merits a reexamination of the role and structure of the DOJ down the line with an eye toward determining how an institution supposedly staffed with “officers of the court” could be so cowardly and inept when it comes to standing up against internal abuses and contempt for our Constitution.

 

In addition, the latest abuse of authority by Barr emphasizes the need for immediate removal of the Immigration Courts from Barr’s control and a reversal of the “Chevron doctrine” of “judicial task avoidance” that has granted the DOJ’s immigration kakistocracy clearly unwarranted and unjustified “deference.”

 

Finally, I pass along my favorite quip from one of my former colleagues about the exalted “management role” of today’s Immigration Judges: “I often say I am not even permitted to manage the pencils in my courtroom.”

 

While there is a certain type of “dark humor” in the actions of Barr and the other “malicious incompetents” in the Trump Administration, there is nothing funny about the innocent lives being lost or threatened by their actions or the damage that these “evil clowns” are inflicting on our Constitution and our instructions.

 

PWS

 

08-10-19

 

 

 

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. IMMIGRATION COURTS: After Two Years Of Trump Administration Anti-Immigrant Shenanigans At EOIR, The Backlog Has Mushroomed To 975,298, Morale Has Hit Rock Bottom, & Due Process Is Mocked Every Day — There Is A Solution, But Will Our Republic Survive Enough To Reach It?
  3. MOLLY HENNESSY-FISKE @ LA TIMES:  Conscientious Immigration Judges Continue To Jump Ship As Regime Turns Immigration “Courts” Into DHS Deportation Offices, Where Due Process & Humanity Die Under A White Nationalist Agenda
  4. THE “MAINSTREAM MEDIA” HAS FALLEN FOR BILLY BARR’S LATEST “CON JOB” HOOK, LINE & SINKER — But YOU Shouldn’t — Bess Levin @! Vanity Fair Decodes Billy’s Real Message to His Don: “Let [me] turn the judicial branch into your own personal score-settling operation in peace!“  — Plus, My Bonus “Friday Essay” — “Don’t Believe A Word Billy Barr Says!”

COURAGEOUS U.S IMMIGRATION JUDGES LIKE PAUL GAGNON OF THE BOSTON IMMIGRATION COURT CONTINUE TO PROTECT ABUSED REFUGEE WOMEN UNDER THE LAW DESPITE SESSIONS’S EXTRALEGAL ATTEMPT TO ELIMINATE PROTECTION IN MATTER OF A-B- — Continuing Threats By Bill Barr & EOIR Against Judges Who Act Fairly & Impartially Fail To Deter Some From Upholding Their Oaths Of Office — Of Course, “Women in Guatemala” are a “Particular Social Group,” As Beautifully & Convincingly Set Forth By Judge Gagnon’s Recent Decision, A Primer On The Proper Application Of Asylum Law That Carries Out The Intent Of The Supreme’s 1987 Decision in Cardoza-Fonseca!

Boston Judge Gagnon Decision

Thanks to Judge Jeffrey Chase, leader of our Roundtable of Former Immigration Judges for sending this to me.

Also, I join Judge Chase in congratulating Gerald D. Wall and the Greater Boston Legal Services (a clinical program of Harvard Law School) for providing pro bono representation in this case.

Note how succinct, straightforward, logical, and well-supported by authority Judge Gagnon’s decision is. Compare that with the nearly incomprehensible 30+ page anti-asylum, lie-filled, intellectually dishonest, and legally incorrect screed written by Sessions in support of his cowardly extralegal attack on some of the most vulnerable and deserving of protection among us in his Matter of A-B- atrocity.

Now think of how the system could work if Judge Gagnon’s correct decision were the precedent and all asylum applicants had access to qualified pro bono counsel.

Many cases could be promptly granted by an honest USCIS Asylum Office committed to properly applying protection law.  They would not even have to reach the backlogged Immigration Courts or be subjected to toxic, counterproductive “gimmicks” like “Let ‘Em Die in Mexico” or absurdities like claiming that everyone should apply in Guatemala, from which this respondent was fleeing for her life and which has neither a functional government nor a credible asylum system.

That, plus perhaps using retired judges from all types of courts and bringing back retired Asylum Officers and adjudicators trained to recognize and quickly grant “slam dunk” asylum cases like this would be the key to establishing a credible, independent, Immigration Court and a reestablishing a functioning asylum system of which we all could be proud.

Instead, our current maliciously incompetent White Nationalist regime continues to ignore our laws, our Constitution, and our international obligations in leading a cowardly and disreputable “race to the bottom” in which the richest and most powerful country in the world conducts itself as a “Banana Republic” led by a tinhorn dictator.

PWS

08-08-19

 

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. THREE THANKSGIVING CHEERS FOR IMMIGRATION JUDGE JULIE NELSON (SF) & APPELLATE IMMIGRATION JUDGE ELLEN LIEBOWITZ (BIA) — Doing Justice, Granting Asylum, Saving Lives In The Age Of Trump!

THE ROUNDTABLE IN ACTION: HON. ILYCE SHUGALL DELIVERS POWERFUL STATEMENT IN THE LA TIMES ON WHY SHE COULD NO LONGER SERVE AS A JUDGE IN OUR OBSCENELY DISTORTED AND UNFAIR U.S. IMMIGRATON COURT SYSTEM – “But nothing prepared me for the unprecedented, unfair and unworkable policies the Trump administration imposed on the courts and the immigration process.”

https://www.latimes.com/opinion/story/2019-08-03/immigration-court-judge-asylum-trump-policies

Hon. Ilyce Shugall
Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Director, Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.

By ILYCE SHUGALL

LA Times

AUG. 4, 2019

 

I have been an immigration lawyer dedicated to fairness and due process for immigrants my entire career. In 2015, convinced that my 18 years of experience as an advocate would make me a good immigration judge, I applied for the job.

Most immigration judges are former attorneys from the chief counsel’s office of U.S. Immigration and Customs Enforcement, former assistant U.S. attorneys or former attorneys from other federal government agencies. Former advocates are appointed less frequently, but I believed in the importance of having judges from varied backgrounds on the bench and therefore applied.

I made it through the application and vetting process and was appointed to the bench in September 2017. I resigned this March because I could no longer in good conscience work as an immigration judge in the Trump administration.

I knew when I joined the bench that there would be frustrations, as immigration courts are governed by the Justice Department and lack the independence of other courts in the federal judicial system. But nothing prepared me for the unprecedented, unfair and unworkable policies the Trump administration imposed on the courts and the immigration process.

I believed it was my job to ensure that all people who appeared before me understood their rights and had the opportunity to fully present their cases. I found the job fulfilling when I was hearing cases. I enjoyed learning about the lives of people from all over the world and analyzing complex legal issues. It was also heartbreaking. I heard stories of horrific violence, terror and pain. I was moved by the struggles and resolve of those who leave everything behind to seek safety and refuge, those who dedicate their lives to caring for family members, and those who overcome incredible obstacles to make a better future for themselves and their families.

In 2018, Atty. Gen. Jeff Sessions and the director of the Executive Office for Immigration Review, which oversees the immigration courts, began imposing quotas and performance metrics that affected the day-to-day function and independence of the judges. We were notified that all judges were expected to complete 700 cases a year to receive a satisfactory performance review. EOIR also published performance metrics for the judges that established specific timelines for adjudication of cases and motions.

During a conference of immigration judges in June 2018, agency leadership informed us that the quota policy would go into effect in October. Sessions, during his keynote speech at the conference, announced that he would be issuing his decision in the case of Matter of A-B-, which dealt with asylum claims based on domestic violence. His decision to prohibit grants of asylum for victims of domestic violence and persecution perpetrated by other nongovernment actors was announced later that day. I left the conference extremely demoralized.

My colleagues and I felt the impact of the case quotas on our ability to render correct and well-reasoned decisions. My calendar was fully booked with cases through 2021. The judges in San Francisco, where I served, were told we could not schedule any cases in 2022 until our calendars showed that three cases were scheduled every day through the end of 2021.

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This meant that the judges were forced to schedule at least two cases in one time slot (there being two slots a day) — regardless of whether it was possible to hear two cases in such a short time frame or whether this would allow a judge to consider fully the merits of each case, which often involved determining life or death issues.

This was the way to push us to complete 700 cases a year. Failure to hit the quota would also result in failing to meet other performance metrics. In August 2018, Sessions also issued a decision limiting continuances of cases in immigration court.

Shortly after we were told to hear three cases a day, we were also told we could not schedule interpreters for two different languages in each of the morning or afternoon sessions. We were told we needed to match languages or pair English-language cases with other languages, though we had no tools to assist us in coordinating languages.

The impact of these administrative policies, while bad on judges’ morale and workloads, was worse for the immigrants appearing at court. The pressure to complete cases made me less patient and less able to uphold the constitutional protections required to properly adjudicate cases.

In addition to these policies, the Trump administration announced several new policy changes to limit the rights of noncitizens to apply for asylum. One was the “Remain in Mexico” policy, which required asylum applicants to stay in Mexico while awaiting their court hearings. Another was the administration’s attempt to eliminate eligibility for asylum for individuals who did not present themselves at a port of entry while simultaneously preventing asylum seekers from being processed at the ports of entry.

In November 2018, the EOIR director issued a memorandum to push through cases of “family units” on a fast track. These cases continue to be docketed and heard on an expedited basis. This policy prevents indigent noncitizens from having adequate time to secure counsel or evidence to support their cases. And it often leads to individuals being ordered removed without a hearing because clerical errors caused hearing notices to be sent to incorrect addresses.

As more policies were issued, it became clear that this administration’s attack on immigrants and the independence and functioning of the immigration courts would only get worse.

As I expected, the attacks continued. Since I resigned, the Department of Homeland Security has expanded expedited removal. Recently, EOIR began using a video to comply with federal regulations requiring that all noncitizens be advised of their rights and responsibilities in court. The video, which replaces in-person interpreters, will inevitably cause confusion and make it far harder for individuals to defend themselves.

Just last week, Atty. Gen. William Barr issued a decision that largely eliminates asylum eligibility for those facing persecution because of family ties. This ruling could affect thousands of legitimate asylum seekers fleeing violence in Mexico and Central American countries, as well as other parts of the world.

I expect the Trump administration’s relentless attacks against immigrants and the immigration system to continue. The way to limit the damage is to establish an independent immigration court that is outside the Justice Department. Until that happens, the immigration courts will be subject to the politics driving the administration rather than the principles of justice immigration judges are sworn to uphold.

Ilyce Shugall is the director of the Immigrant Legal Defense Program at the Justice & Diversity Center of the Bar Assn. of San Francisco.

OPINIONOP-ED

Hon.

MORE FROM THE LOS ANGELES TIMES

 

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

 Well said, Judge Shugall, my friend, colleague, and fellow member of the Roundtable of Former Immigration Judges!

 

Ilyce explains and gives “real life examples” of two concepts that I discuss often at “Courtside:”

 

  • AIMLESS DOCKET RESHUFFLING (“ADR”): Arbitrarily or maliciously moving cases around without actually deciding them to the disadvantage of the respondents, their lawyers, the judges, court staff, and often even ICE counsel (who, as far as I can tell, are never consulted in advance or given meaningful input on major policy changes at DHS, despite probably being the best qualified individuals in the agency to understand the real legal framework and practical implications of various policy decisions imposed “from above”);

  • MALICIOUS INCOMPETENCE (“MI”): Using White Nationalist restrictionist policies, not based on either the law or empirical data, usually irrational and impractical, to limit the ability of migrants to exercise their legal rights, create chaos in the court system, and ultimately to destroy the system and replace it with something even more draconian and more completely unfair.

 

PWS

08-04-19

 

 

 

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. EOIR TARGETS UNACCOMPANIED KIDS FOR DEPORATION RAILROAD!
  4. COURTSIDE HAS BEEN AT THE FOREFRONT OF EXPOSING THE “CRIMES AGAINST HUMANITY” COMMITTED BY THE REGIME AND THE MORAL CULPABILITY OF THOSE WHO WILLFULLY CARRY OUT & ENABLE THESE ATROCITIES — The “Mainstream Media” Is Now Channeling Courtside! — “In the meantime, no government has the right to treat people with such abject inhumanity. History will remember Trump for this, but it will also remember the people who enable such atrocious acts.”

SEN. KIRSTEN GILLIBRAND (D-NY) INTRODUCES BILL TO PROVIDE ATTORNEYS FOR ASYUM SEEKERS – Other Dems Sign On

https://apple.news/AgrY1IyNUTySuACBpvrL_aQ

Veronica Stracqualursi
Veronica Stracqualursi
Politics Reporter
CNN
Kirsten Gillibrand
Sen. Kirsten Gillibrand
D-NY

Sen. Kirsten Gillibrand introduces new legislation that would provide asylum seekers with attorney

Veronica Stracqualursi

CNN

Updated 2:18 PM EDT August 2, 2019
Washington

2020 Democratic presidential candidate and New York Sen. Kirsten Gillibrandintroduced a bill Wednesday that would provide immigrants with an attorney as they seek asylum or other legal protections in the US as the Trump administration has been dramatically limiting the ability of Central American migrants to claim asylum.

Immigrants, for example, have the right to counsel and may hire a lawyer themselves, but unlike in the criminal justice system, representation is not guaranteed.

Under Gillibrand’s proposed bill, legal counsel would be required for eligible groups facing removal proceedings — including children, individuals with disabilities, victims of abuse, torture, and violence, and individuals at or below 200% of the federal poverty level.

The Funding Attorneys for Indigent Removal (FAIR) Proceedings Act “would ensure that some of the most vulnerable individuals in this process can be represented by an attorney,” Gillibrand said in a statement Friday.

“This would not only guarantee a more humane way to process asylum claims and other legal protections, but it would improve the efficiency of our immigration courts and help our country do a much better job of managing our immigration system,” Gillibrand said.

She accused the Trump administration of being “far too willing to fast-track deportation cases even when people have credible claims to asylum.”

Democratic Reps. Donald McEachin from Virginia and Zoe Lofgren from California have introduced a House companion to Gillibrand’s bill. Sens. Cory Booker and Bernie Sanders, two other 2020 Democratic presidential hopefuls, and Richard Blumenthal have also signed onto the Senate bill as co-sponsors.

The Trump administration has worked to limit immigration and toughen the US asylum process amid overcrowded conditions at border facilities and a spike in apprehensions at the US-Mexico border over the recent months.

Last month, the departments of Justice and Homeland Security also rolled out an interim rule that would prohibit migrants who have resided or “transited en route” in a third country from seeking asylum in the US, therefore barring migrants from Central America traveling through Mexico from being able to claim asylum and as a result, drastically limiting who’s eligible for asylum.

A federal judge blocked the asylum rulefrom going into effect, deeming it “likely invalid because it is inconsistent with the existing asylum laws.”

The Trump administration also moved to expanda procedure to speed up deportations to include undocumented immigrants anywhere in the US who cannot prove they’ve lived in the country continuously for two years or more.

The notice, filed in the Federal Register on July 22, casts a wider net of undocumented immigrants subject to the fast-track deportation procedure known as “expedited removal” which allows immigration authorities to remove an individual without a hearing before an immigration judge. The American Civil Liberties Union has said it will sue to block the policy.

© 2019 Cable News Network, Inc. A WarnerMedia Company. All Rights Reserved.

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

Competent lawyers have been beating the Trump Administration like a drum on immigration issues. That’s why corrupt officials like Trump, Barr, Miller, “Big Mac With Lies,” and “Cooch Cooch” are so desperate to railroad asylum applicants out of the country while unlawfully denying them access to even the limited number of pro bono lawyers available under current law.

The Federal Courts have also “tanked” on their constitutional duty to insure Due Process by requiring appointed counsel in immigration cases, something that should make the entire Article III judiciary hang their collective heads in shame. The Federal Courts have also been “asleep at the switch” by allowing the Trump Administration to use inhumane coercive detention in obscure places and other gimmicks intentionally designed to defeat asylum applicants’ right to counsel of their own choosing.

 

PWS

08-03-19

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. EOIR TARGETS UNACCOMPANIED KIDS FOR DEPORATION RAILROAD!
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

COURT OBSERVATION TEAMS EXPOSE SYSTEMATIC INJUSTICE IN AMERICA’S MOST IMPORTANT COMPLETELY DYSFUNCITONAL COURT SYSTEM – Our U.S. Immigration Courts, “Where The Rubber Meets The Road,” Are Running On Four Flat Tires, Leaving A Human Carnage Of Injured & Dying Victims In Its Wake! — This Is What “Irreparable Harm” Looks Like!

https://apple.news/AfkD4idrHPfKfrm2yLtDT1A

Rewire.News reports:

All eyes are on the border crisis our government has created.

The news of horrific conditions at immigrant detention centers, an onslaught of restrictions preventing refugees from seeking asylum, and reports of ICE raids have sent thousands of people to the streets to protest.

Amid these atrocities, many people in the United States are asking how they can help. For those who want to contribute, there is a simple way that doesn’t require donating money, living in a border town, or speaking Spanish: volunteering as a court observer.

Court observers attend asylum hearings to shed light on the immigration court system, which is among the least transparent institutions of the justice system. Qualifications are minimal—one needs only a valid government photo ID and the ability to observe in silence and take legible notes, since recording devices aren’t allowed. Volunteers can plug into different programs to share their observations, as well as discuss the process with family and friends or post their findings on social media. Collectively, this information can be used to highlight judges or courts that are particularly unfriendly to asylum seekers. It can also empower advocates pushing for systemic reform of the 50 immigration courts in 29 states, Puerto Rico, and the Northern Mariana Islands deciding the fate of every asylum seeker, many of whom are forced to return to the place they just barely escaped from.

“The immigration court system has been so insulated from public view,” Michele Garnett McKenzie, deputy director of The Advocates for Human Rights, an organization that has been running a court observation program since 2017, told Rewire.News. “It’s small, it’s under the radar, and it lulls us to thinking that there are a set of rules and if the rules are followed, justice will be done.”

Reports, however, are surfacing of judges who haven’t granted a single asylum out of 200 cases. Asylum seekers who are deported are sent back to a place where they might be tortured or killed.

Ariel Prado, who organizes the volunteer-based court watch program in Atlanta, Georgia, for Innovation Law Lab, hasn’t encountered a judge who has denied 100 percent of asylum cases. “But there are judges in Atlanta with a denial rate in the high 90s,” Prado told Rewire.News. 

These high denial rates don’t tell us the full story, Prado noted. “You might think [the judges] have a different understanding of the law or they have a constrained understanding of what asylum is or they apply the law differently,” Prado said. “In [immigration court], it’s a much more human level than that. You see women who describe sexual abuse, repeated rape over the span of the year, being in captivity, being forcefully drugged … and you watch mostly male judges almost doze off through the testimony and totally trivialize [the woman’s] experience in their summary.”

Other advocates echo similar frustrations. Emem Maurus is an immigration attorney for Al Otro Lado, a bi-national nonprofit serving asylum seekers who seek to migrate to the United States, in Tijuana, Mexico. The organization recently launched a court observation program to collect information and bring transparency to Migrant Protection Protocols. Without accountability, Maurus told Rewire.News, “it’s a black hole in terms of what’s happening” to asylum seekers. Maurus described a judge who asked an asylum seeker to designate the country of his removal in case his asylum was denied. “The man said, I can’t go back to Honduras,” said Maurus. The judge then asked the government lawyer for a recommendation. “[The government lawyer] very glumly said, ‘Honduras.’ And the judge said, ‘OK, Honduras,’” added Maurus.

Although Maurus finds these incidents difficult to observe, they believe it’s crucial to document “the human cost of [the collective policies] that Trump [has] enacted.”

Under the “Remain in Mexico” policy, asylum seekers are forced to wait in Mexico for their case to be heard, and when they eventually appear for court, most are unrepresented. Lack of representation can be detrimental to an asylum case.

As part of her court observation for Al Otro Lado, volunteer Sarah Gibb Millspaugh records whether asylum seekers appear with a lawyer and if they try to obtain council. Although the San Diego immigration court provides asylum seekers with a list of legal aid, only 5 percent of people she observed had legal representation. “When you’re living in shelters, [it is difficult] to find a lawyer across the border that will connect with you in Mexico,” Millspaugh told Rewire.News. “The list they had posted in the court were all in San Diego and not in Tijuana.”

Compounding the issue, many U.S.-based immigration law firms don’t answer phone calls from Mexico, according to Maurus. And there are other obstacles. In several immigration courts, interpreters communicate through video as they aren’t present. “So if the judge talks to the prosecutor, it doesn’t get interpreted for the asylum seeker,” said McKenzie. “The interpreters only translate questions addressed to the asylum seekers.” Given such circumstances and the lack of adequate representation, it is highly unlikely for asylum seekers to receive a fair trial.

Millspaugh found the immigration judges she observed to be compassionate. Even so, like other advocates, she thinks the law is unjust. “Some of the most emotional points were that [the judge] said we’ll review [the] case at the next hearing in September.” This meant the asylum seekers would have to live in Mexico shelters for another two-and-a-half months or on the streets of one of the most dangerous cities in the world, with no money or means to protect themselves. “A woman said a man had followed her twice, [while she was in Mexico awaiting her court hearing], [trying] to take her daughter,” Millspaugh added. “Her daughter was about three.” A man and his son who had been threatened in Mexico asked the judge if she could hold the hearing any sooner. Due to a backlog in cases, the judge was able to expedite the case by only two weeks.

Millspaugh observed another judge who asked asylum seekers to not bring their children to their court hearing. Afterwards, Millspaugh wrote the judge a letter stating that given the unstable and unsafe conditions in Mexico, asylum seekers have no choice but to bring their children to the court. “I wouldn’t leave my child in Mexico. I would bring my child,” said Millspaugh.

The advocates Rewire.News spoke to encouraged people of all backgrounds to volunteer as court observers. Given the background and different experiences of volunteers, McKenzie believes they can observe court hearings from different angles. “[We have] an amazing array of retired people who go [into the immigration courts] with 40 years of professional experience as a psychologist or a child protection worker,” she said.

Prado, who is helping develop an Immigration Court Watch browser-based app, believes who controls the narrative is important. “It’s all [up to] the community to investigate where the truth lies. Court observation is the core of truth finding and it’s meant to be a national project.”

Scheduled to launch in mid-August, the app uses standardized forms to document immigration judges’ conduct, the hearing outcome, and other factors. “That way we can compare the immigration judge conduct and hearing outcomes by more than just [what the government and the Department of Justice] is willing to share,” said Prado. The forms are uploaded onto the app, which will read responses, ask follow-up questions, and store the information in a centralized location.

“Court observation makes sure what happens [to asylum seekers] isn’t completely shrouded and opaque,” Prado said. There are times, however, that immigration judges determine a hearing should be closed to the public in order to protect the asylum seeker from having to share sensitive details in front of an audience. Other times a judge would rather not be scrutinized or might be concerned the observers will be disruptive. Prado noted it would be ill-advised for observers to challenge the judge. Instead they should document they were ordered to leave the immigration court along with any reasons the judge provides.

McKenzie believes court observation could help the justice system become accountable and even change the behavior of the judges. “The system is designed to operate for the benefit of the system and not the public,” McKenzie said. “Without public engagement there is no sunshine, no transparency. Transparency and accountability are fundamental to protecting the human rights of the people.”

When Millspaugh shared her experience as a volunteer court observer with friends, they were concerned that it is difficult to witness such heartbreaking proceedings. But Millspaugh is undeterred, as she feels contributing to stopping human rights violations is empowering. “There is something that’s very life-giving … about actually engaging in the system. When we know what’s happening and we’re not connecting with it, there is a helpless despair we can feel. We can do something. Even if we [don’t] stop it, we are mitigating the horrors that are inflicted.”

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

As this article aptly points out, every concerned American can take part in supporting the many traumatized individuals being sentenced to injustice in our disgracefully broken U.S. Immigration Courts. You don’t have to be a lawyer or a journalist. These “courts that function more like star chambers” have been “weaponized” by the Trump Administration against the very individuals they are supposed to be protecting against unlawful Government actions, Executive overreach, and the intentional misconstruction of the laws granting asylum and other immigration benefits.

This article also correctly points out that the so-called “border crisis,” largely created and totally aggravated by this “maliciously incompetent” Administration, has been used to divert attention from the gross violations of legal and human rights and basic morality that the Administration inflicts daily in the “captive” Immigraton Courts as it mocks constitutional Due Process and fundamental fairness.

History will record the intentional misdeeds, lack of human empathy, and the often life-threatening harm being cowardly and unfairly inflicted on those seeking mercy and refuge under our laws.

 

PWS

08-03-19

 

 

 

 

 

Related posts:

  1. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  2. “SITTING DUCKS” IN “UNSAFE THIRD COUNTRIES” — How The Supremes, The 9th Circuit, The 5th Circuit, & Other Complicit Federal Appellate Courts Aid & Abet The Trump Regime’s Human Rights Violations — Would The “Privileged Robed Ones” Take Due Process & The Rule Of Law More Seriously If It Were THEIR Kids & Grandkids Being Kidnapped & Held for Ransom For The “Crime” Of Seeking Protection Under U.S. Laws?  
  3. COURTSIDE HAS BEEN AT THE FOREFRONT OF EXPOSING THE “CRIMES AGAINST HUMANITY” COMMITTED BY THE REGIME AND THE MORAL CULPABILITY OF THOSE WHO WILLFULLY CARRY OUT & ENABLE THESE ATROCITIES — The “Mainstream Media” Is Now Channeling Courtside! — “In the meantime, no government has the right to treat people with such abject inhumanity. History will remember Trump for this, but it will also remember the people who enable such atrocious acts.”
  4. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

ACLU COURT EVIDENCE SUGGESTS McALEENAN LIED TO CONGRESS WHILE VIOLATING COURT ORDER ON CHILD SEPARATIONS — Continuing Separations Appear To Be Part Of Intentional Misapplication & Misinterpretation Of Narrow “Exception” — “Best Interests Of Child” Buried Beneath A Web Of Deception

https://www.washingtonpost.com/immigration/aclu-us-has-taken-nearly-1000-child-migrants-from-their-parents-since-judge-ordered-stop-to-border-separations/2019/07/30/bde452d8-b2d5-11e9-8949-5f36ff92706e_story.html

Maria Sacchetti
Maria Sacchetti
Immigration Reporter, Washington Post

Maria Sacchetti reports for the WashPost:

Lawyers for the American Civil Liberties Union told a federal judge Tuesday that the Trump administration has taken nearly 1,000 migrant children from their parents at the U.S.-Mexico border since the judge ordered the United States government to curtail the practice more than a year ago.

In a lengthy court filing in U.S. District Court in San Diego, lawyers wrote that one migrant lost his daughter because a U.S. Border Patrol agent claimed that he had failed to change the girl’s diaper. Another migrant lost his child because of a conviction on a charge of malicious destruction of property with alleged damage of $5. One father, who lawyers say has a speech impediment, was separated from his 4-year-old son because he could not clearly answer Customs and Border Protection agents’ questions.

Acting Homeland Security secretary Kevin McAleenan has said that family separations remain “extraordinarily rare” and happen only when the adults pose a risk to the child because of their criminal record, a communicable disease, abuse or neglect. Of tens of thousands of children taken into custody at the border, 911 children were separated since the June 26, 2018, court order according to the ACLU, which cited statistics as of June 29 that the organization received from the government as part of ongoing legal proceedings.

During a July 12 tour of a detention center in McAllen, Tex., reporters saw almost 400 men being held in cages. They allegedly crossed the border illegally. (The Washington Post)While the judge recognized that parents and children might still be separated when a parent is found to pose a risk to their child, the ACLU and others say federal immigration and border agents are splitting up families for minor alleged offenses — including traffic violations — and urged the judge Tuesday to clarify when such separations should be allowed.Approximately 20 percent of the new separations affected children under 5 years old, the ACLU said, compared with about 4 percent last year.

“They’re taking what was supposed to be a narrow exception for cases where the parent was genuinely a danger to the child and using it as a loophole to continue family separation,” ACLU lawyer Lee Gelernt said in an interview. “What everyone understands intuitively and what the medical evidence shows, this will have a devastating effect on the children and possibly cause permanent damage to these children, not to mention the toll on the parents.”

[Accused of gang ties, separated parents struggle to get their kids back]

The Justice Department and the Department of Homeland Security declined to comment Tuesday.

The tally of child separations adds to the approximately 2,700 children who were taken from their parents during a chaotic, six-week period from May to June 20 last year, when a Trump administration border crackdown triggered one of the worst crises of his presidency.

The policy sought to deter a crush of asylum seekers, who were surrendering as families at the U.S. southern border, by prosecuting parents for the crime of illegal entry and sending their children to federal shelters. Reports of traumatized, crying children led to widespread demands to reunite the families.

Venezuelan migrant mothers and their children turn themselves in to law enforcement officials to seek asylum after illegally crossing the Rio Grande near Mission, Tex., on July 25. (Loren Elliott/Reuters)

Trump ordered federal officials to stop separating families on June 20, 2018, and said it is the “policy of this Administration to maintain family unity” unless the parent poses “a risk” to the child.

Six days later in San Diego, U.S. District Judge Dana M. Sabraw, an appointee of President George W. Bush, ordered the Trump administration to reunite the families, a process that dragged on for months because the government had failed to track the parents and children after splitting them up. A still-unknown number of families were separated before the policy officially began.

McAleenan, who at the time signed off on the zero tolerance policy and carried it out as commissioner of U.S. Customs and Border Protection, told the Senate Homeland Security and Governmental Affairs Committee in May that family separations are “extraordinarily rare” and make up a tiny portion of the now more than 400,000 families taken into custody at the border since the court ruling.

Central American migrants walk along train tracks as they head toward the United States in Saltillo, Mexico, on July 24. (Daniel Becerril/Reuters)

At that time, he testified, about one to three family separations happened out of about 1,500 to 3,000 family members apprehended each day. He also said then that separations occur “under very controlled circumstances.”

Testifying before the U.S. House Oversight and Reform Committee on July 18, McAleenan emphasized that the separation process is “carefully governed by policy and by court order” to protect the children.

“This is in the interest of the child,” he said. “It’s overseen by a supervisor, and those decisions are made.”

[IG: Trump administration took thousands more migrant children from parents]

Of the 911 child separations, 678 were for alleged criminal history, the ACLU said Tuesday, citing government records. Offenses included drunken driving, assault and gang affiliation, as well as theft, disorderly conduct and minor property damage.

Many cases lacked details about the alleged crimes, the ACLU said, and several charges were decades old. Among those separated because of concerns about parental fitness were an HIV-positive father of three young daughters and a mother who broke her leg and required surgery.

Child advocates and medical professionals have repeatedly warned that separating children from their parents can lead to lasting severe physical and emotional disorders.

“Forcibly separating children from their parents is like setting a house on fire,” Jack Shonkoff, a pediatrics professor at Harvard Medical School, said in an affidavit included in the ACLU’s motion. “Prolonging that separation is like preventing the first responders from doing their job and letting the fire continue to burn.”

Jennifer Nagda, policy director of the Young Center for Immigrant Children’s Rights, a child advocate for unaccompanied and separated children, told the U.S. House Committee on Oversight and Reform that the group represented about 120 children and found that nearly all separations were “contrary to the best interests of the child.”

“DHS officials with no child welfare expertise are making split-second decisions, and these decisions have traumatic, lifelong consequences for the children and their families,” Nagda said in her testimony. She also filed an affidavit in the ACLU’s case Tuesday.

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

It’s with very good reason that I consider “Big Mac With Lies” to be one of the most dishonest and dangerous public officials in America.

Some reporters seem to mistakenly “cut him some slack” because he: 1) served in the Obama Administration (which had its own very dismal record on treatment of families and children seeking asylum); and 2) unlike folks such as  “Gonzo,”  “Cooch Cooch,” Miller, Kobach, et al., he’s not a “lifelong White Nationalist ideologue.” 

But, I don’t see how being a liar, apologist, “cover up artist,” and human rights abuser in support of a racist White Nationalist Administration is somehow “better” than being a “true believer” in White Nationalist racism. Falsely claiming that Guatemala and Mexico are “Safe Third Countries,” that asylum applicants won’t show up for hearings (when they almost always do, particularly when they are given access to lawyers and have the system properly explained to them), and falsifying stats to paint an untruly negative picture of asylum seekers from Central America is no less vile than Trump’s lies and racist tweets.

As a lawyer and a graduate of Amherst Collge and Chicago Law, “Big Mac” is cerainly smart enough to know that places like Guatemala and Mexico don’t come remotely close to satisfying the legal definition of a “Safe Third Country.” He also has enough Government immigration enforcement experience to know for sure that the extralegal, cruel, and ineffective “enforcement only” approach he disingenuously advocates as a “Trump toady” won’t come anywhere near to solving the problems driving forced migration or saving the lives of the vulnerable.

I actually have a better understanding of what drives the Trumps, “Gonzos,” Millers, and “Cooch Cooches” of the world than what drives corrupt public servants like McAleenan to violate their oaths of office and to pick on those whose rights and human dignity they should be standing up for, no matter how vile the leadership of the Administration they nominally serve (actually, they serve the American people, not any particular political leader) might be.”Big Mac” is a disgrace to honest Federal civil servants and to all Americans who believe in democracy and “good government.” History must hold him accountable.

PWS

08-01-19

Related posts:

  1. FOUR TODDLERS RESCUED BY PRO BONO LAWYERS FROM DEADLY SITUATION IN CBP CUSTODY — Putrid, Unsanitary, Repressive Conditions Causing Lifetime Harm To Other Traumatized Kids — But, Border Patrol Chief Carla Provost Wants You To Know That She’s Not Taking Responsibility For The Humanitarian Disaster Intentionally Engineered On Her Watch!
  2. EUGENE ROBINSON @ WASHPOST: KID KILLERS ON THE LOOSE: “Sixteen-year-old Carlos Gregorio Hernandez Vasquez died horribly and needlessly. The Trump administration’s policy of deliberate, punishing cruelty toward Latin American migrants killed him.”
  3. [BUREAU] ‘CRATS CONTINUE TO FLEE SINKING DHS SHIP AS ABUSES, LIES, COVER-UPS MOUNT — John Sanders Latest To Exit — Trump Taps Mark Morgan, Eager Architect Of Administration’s Temporarily Aborted “Community Reign of Terror” (A/K/A/ “Operation Wetback ‘19”) Program As Next Acting CBP Chief — Expect More Mindless Cruelty, Lies, False Narratives, White Nationalist Racism, Violations Of Law & Human Rights!
  4. CATHERINE RAMPELL @ WASHPOST: Trump & His GOP’s Cowardly “War On Children” Should Outrage Every American! — Join The “New Due Process Army” & Fight To Save Humanity!

AILA CONDEMNS BARR’S LATEST COWARDLY EXTRALEGAL ATTACK ON VULNERABLE ASYLUM SEEKERS — “Matter of L-E-A- is a poorly-reasoned decision from an Administration that seems intent on ending legal asylum. AG Barr’s decision ignores decades of circuit court case law which has concluded that families are the ‘prototypical’ or ‘quintessential’ particular social group to qualify for asylum.”

Jeremy McKinney
Jeremy McKinney, Esquire
Greensboro, NC
AILA 2nd Vice President

 

AILA: AG’s Decision Ignores Precedent and Is the Latest Attempt to Restrict Asylum

AILA Doc. No. 19072905 | Dated July 29, 2019

CONTACTS:
George Tzamaras
202-507-7649
gtzamaras@aila.org		 Belle Woods
202-507-7675
bwoods@aila.org

 

WASHINGTON, DC — On July 29, 2019, Attorney General (AG) William Barr issued a precedent decision in Matter of L-E-A- and announced that in his view, families cannot be considered a particular social group (and thus grounds for asylum) unless they are recognized by society as such.

AILA Second Vice President Jeremy McKinney stated, “Matter of L-E-A- is a poorly-reasoned decision from an Administration that seems intent on ending legal asylum. AG Barr’s decision ignores decades of circuit court case law which has concluded that families are the ‘prototypical’ or ‘quintessential’ particular social group to qualify for asylum. Courts, like the 4th Circuit Court of Appeals in Richmond, Virginia, have voluminous case law directly contradicting the Attorney General’s decision today.

 

“The impact of AG Barr’s decision, along with the other decisions issued by his immediate predecessors on asylum and the nation’s immigration courts, cannot be overstated. Last summer, the AG issued Matter of A-B- attempting to end the category of persecution – essentially restricting domestic violence victims and other victims of crimes perpetrated by private, non-government actors from their ability to qualify for asylum. Today, the AG’s office further attempts to restrict asylum by targeting a new category of asylum seekers: families. This will cause irreparable harm. We know that these are some of the most vulnerable of asylum seekers as parents flee with their children in order to protect them from persecution. This decision unnecessarily makes asylum harder. Clearly, our nation needs an independent immigration court system separate from the Department of Justice.”

 

Cite as AILA Doc. No. 19072905.

Laura A. Lynch, Esq.

Senior Policy Counsel

Direct: 202.507.7627 I Email: llynch@aila.org

 

American Immigration Lawyers Association

Main: 202.507.7600 I Fax: 202.783.7853 I www.aila.org

1331 G Street NW, Suite 300, Washington, DC 20005

 

 

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

Cowardice is the very definition of when those in power whose job and solemn duty is to protect and vindicate the rights of others, particularly the most vulnerable among us like refugees, instead grossly abuse their power by picking on them, bullying them, and abusing them. Whether or not Barr and the other White Nationalist restrictionists in the Trump Administration are committing actual crimes under U.S. law, they are certainly guilty of “crimes against humanity” in any normal sense of the word.

 

It is for legal scholars, historians, and moral philosophers to insure that Trump, Pence, Barr, Sessions, “Cooch Cooch,” “Big Mac With Lies,” Miller, Nielsen, Kelly, Homan, Morgan, and others who have enthusiastically supported and enabled this debacle do not escape the negative judgements of history!

PWS

07-30-19

 

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”
  3. HALLOWEEN HORROR STORY: Opaque & Biased Politicized Judicial Hiring Denies Migrants The Fair & Impartial Adjudication To Which They Are Constitutionally Entitled – Given The Generous Legal Standards, A Worldwide Refugee Crisis, & Asylum Officers’ Positive Findings In Most Cases, Asylum Seekers Should Be Winning The Vast Majority Of Immigration Court Cases — Instead, They Are Being “Railroaded” By A Biased System & Complicit Article III Courts!
  4. TWO MORE FROM HON. JEFFREY CHASE EXPOSING TRUMP ADMINISTRATION’S CRIMES AGAINST HUMANITY & HOW THE COMPLICIT FEDERAL COURTS FURTHER THESE ABUSES! — “How innocent women and children resigning themselves to being severely beaten, raped, and killed in their home countries constitutes all problems being solved is beyond comprehension.”

HOW LOW CAN THEY GO? — Many Thought It Couldn’t Get Any Worse Than Sessions’s Targeting Of Abused Women Refugees — But, Barr Seeks To Outdo Him With Unprovoked Attack On Persecuted Families!

MATTER OF L-E-A-, 27 I&N Dec. 581 (A.G. 2019)

https://www.justice.gov/file/1187856/download

DOJ HEADNOTE:

(1) In Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), the Board of Immigration Appeals improperly recognized the respondent’s father’s immediate family as a “particular social group” for purposes of qualifying for asylum under the Immigration and Nationality Act.

(2) All asylum applicants seeking to establish membership in a “particular social group,” including groups defined by family or kinship ties, must establish that the group is (1) composed of members who share a common immutable characteristic; (2) defined with particularity; and (3) socially distinct within the society in question.

(3) While the Board has recognized certain clans and subclans as “particular social groups,” most nuclear families are not inherently socially distinct and therefore do not qualify as “particular social groups.”

(4) The portion of the Board’s decision recognizing the respondent’s proposed particular social group is overruled. See Matter of L-E-A-, 27 I&N Dec. at 42– 43 (Part II.A). The rest of the Board’s decision, including its analysis of the required nexus between alleged persecution and the alleged protected ground, is affirmed. See id. at 43–47 (Part II.B).

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

As my friend Dan Kowalski of LexisNexis has pointed out, the AG’s ruling conflicts with most Circuit Court precedents which have recognized the nuclear family as the “quintessential particular social group.” So, Barr’s latest assault on human rights and the rule of law is likely to engender years of unnecessary and wasteful litigation.

But, the New Due Process Army and the Roundtable will be leading the change for truth, justice, and the American way!

PWS

07-29-19

Related posts:

  1. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  2. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  3. AILA CONDEMNS BARR’S LATEST COWARDLY EXTRALEGAL ATTACK ON VULNERABLE ASYLUM SEEKERS — “Matter of L-E-A- is a poorly-reasoned decision from an Administration that seems intent on ending legal asylum. AG Barr’s decision ignores decades of circuit court case law which has concluded that families are the ‘prototypical’ or ‘quintessential’ particular social group to qualify for asylum.”
  4. TWO MORE FROM HON. JEFFREY CHASE EXPOSING TRUMP ADMINISTRATION’S CRIMES AGAINST HUMANITY & HOW THE COMPLICIT FEDERAL COURTS FURTHER THESE ABUSES! — “How innocent women and children resigning themselves to being severely beaten, raped, and killed in their home countries constitutes all problems being solved is beyond comprehension.”

FRAUD & ABUSE: TRUMP SEEKS DEATH AND DISRUPTION FOR REFUGEES: Claims To Have Duressed Guatemala, One Of The, Poorest, Most Corrupt, Most Dangerous REFUGEE SENDING Countries Into Outrageously Illegal “Safe Third Country” Agreement! — “Big Mac With Lies” Says Guatemala Not Much Different From U.S.!

https://www.washingtonpost.com/politics/trump-says-he-has-agreement-with-guatemala-to-help-stem-flow-of-migrants-at-the-border/2019/07/26/23bf0cba-afe3-11e9-b071-94a3f4d59021_story.html

Seung Min Kim
Seung Min Kim
White House Reporter
Washington Post
Kevin Sieff
Kevin Sieff
Latin American Correspondent, Washington Post
Abigail Hauslohner
Abigail Hauslohner
National Immigration Reporter, Washington Post

From the Washington Post:

By Seung Min Kim ,

Kevin Sieff and

Abigail Hauslohner

July 26 at 6:45 PM

President Trump on Friday said he has struck a deal that would designate Guatemala as a safe third country for people seeking asylum in the United States — a plan that is facing significant legal hurdles in the Central American country as the Trump administration continues to struggle with the high number of migrants arriving at the southern U.S. border.

The White House did not immediately release details of the agreement, and it is unclear how it would be implemented considering Guatemala’s constitutional court has ruled any safe third country agreement would require legislative approval and the proposal has been widely criticized there.

Trump announced the arrangement in a previously unscheduled appearance in the Oval Office with Enrique Degenhart, the Guatemalan minister of government, and acting homeland security secretary Kevin McAleenan.

“We’ve long been working with Guatemala, and now we can do it the right way,” Trump said Friday. He claimed the agreement will put “coyotes and the smugglers out of business.”

He added: “These are bad people.”

Trump said the agreement will offer safe harbor for asylum applicants deemed legitimate, and that he plans to sign agreements with other countries soon.

The announcement comes just days after Trump threatened retaliation against Guatemala as discussions stalled over designating the Central American nation as a safe third country, which means migrants traveling through the country on their journey to the United States would be directed to first seek protection there.

The Trump administration has been seeking to sign these agreements to cut down on the number of Central American migrants arriving at the U.S.-Mexico border, which officials say is overwhelming the U.S. immigration system. The administration has come under heavy criticism from Democrats and immigration advocates who argue asylum seekers and other migrants face inhumane conditions in the U.S. facilities where they are being housed.

On a call with reporters Friday, McAleenan said the agreement with Guatemala would “be up and running in August,” after the two governments had completed several steps to ratify the deal. Under the agreement, Salvadorans and Hondurans would need to seek asylum in Guatemala, McAleenan said.

“If you have, say, a Honduran family coming across through Guatemala to the U.S. border, we want them to feel safe to make an asylum claim at the earliest possible point,” he said. “If they do instead, in the hands of smugglers, make the journey all the way to the U.S. border, [they would] be removable back to Guatemala.”

Guatemala’s only public statement about the agreement did not explicitly say it would serve as a safe third country, but alluded vaguely to “a plan that will be applied to Salvadorans and Hondurans.”

The statement said the United States would allocate temporary agricultural work visas to Guatemalans, adding that country’s president, Jimmy Morales, negotiated the deal “to counter grave economic and social repercussions.”

A proposal to designate Guatemala as a safe third country is already facing significant legal and logistical challenges. For one, the deal would force thousands of Hondurans and Salvadorans to apply for asylum in Guatemala, one of the region’s poorest countries, which has in some cities struggled to defeat transnational gangs, including MS-13.

Last year, Guatemala received 259 asylum applications, a tiny number compared with the United States and even Mexico. Of those, not a single application was approved, in part because the country is still building institutions to review those cases.

“Guatemala’s asylum system isn’t prepared to increase its capacity to 50,000 in less than a year,” said one United Nations official, who spoke on the condition of anonymity because they weren’t authorized to speak publicly.

The United Nations High Commissioner for Refugees, which currently supports Guatemala’s fledgling asylum system, was not consulted as part of the negotiations, officials said. McAleenan also likened the third party agreement to arrangements between European countries and Turkey to stem the Syrian migrant crisis in 2015. He declined to say whether the U.S. government would be providing any assistance to Guatemala to improve safety and security for Honduran and Salvadoran refugees.

When read the State Department’s description of the security situation in Guatemala, which includes notations that murder is “common,” gang activity is “widespread” and police are ineffective, McAleenan, the Homeland secretary, said one should not “label an entire country as unsafe,” and likened Guatemala to parts of the United States.

The announcement prompted immediate backlash from Democratic lawmakers and human-rights groups who warned that Guatemala did not have the capacity to accept all the migrants who would now be required to apply for asylum there, nor is such an arrangement legal.

Sen. Tim Kaine (D-Va.), who along with Sen. Mazie Hirono (D-Hawaii) toured Border Patrol facilities in El Paso on Friday, noted that Guatemala has one of the world’s highest homicide rates and that they had visited with families earlier in the day who said they had fled the country because of the danger.

“It’s just Kafkaesque to say about that country, ‘Oh, safe third country,’ ” Kaine said. “You can’t just attach a label of safe third country and make it so.”

The Trump administration has taken a variety of unilateral actions to address the challenges at the border, and it has also received an additional $4.6 billion from Congress to deal with the crisis.

In June, Customs and Border Protection apprehended 94,000 migrants at the southern border, a 29 percent drop from the 133,000 who were detained in May. Border crossings tend to drop as the temperature rises in the summer, but administration officials have pointed to the lower figures as a sign that Trump’s border plan is working.

For months, Morales dispatched members of his administration from Guatemala to Washington to negotiate a safe third country agreement with the United States. But earlier this month, shortly before Morales was scheduled to sign the agreement in the White House, Guatemala’s constitutional court ruled he did not have the authority to sign the deal without legislative approval.

The meeting with Trump was canceled. In a statement, Morales then denied he had ever attempted to negotiate such an agreement. He is in the twilight of his scandal-ridden presidency, with elections scheduled for Aug. 11.

But when Trump threatened to impose tariffs on Guatemala and tax remittances, Morales resumed negotiations. Members of the country’s business community urged him on, raising alarm about the impact of tariffs, but most Guatemalans believe the country is wildly unprepared to offer asylum to thousands of Central Americans.

A number of Guatemalan congressmen and human rights officials said they would soon challenge the legality of Friday’s agreement in the country’s courts.

Jordán Rodas, Guatemala’s human rights prosecutor, said the country’s interior minister, who signed the deal on Friday, “does not have the power to sign an agreement of this nature.”

He said he was analyzing the agreement, and if he determined it was illegal, he would demand the constitutional court suspend its implementation.

“We are two weeks from an election,” said Edgar Gutierrez, one of five Guatemalan ex-foreign ministers who had earlier filed a petition in the court to block the signing of the agreement. “The signing of this accord will destabilize the country.”

Some Guatemalan analysts said the timeline for the agreement made it even more unrealistic.

“One month to be a safe country,” said Pedro Pablo Solares, a leading Guatemalan columnist who frequently writes about migration. “It couldn’t be more absurd.”

This year, for the first time in history, more Guatemalans have been apprehended at the U.S. border than citizens of any other country. It remains one of the region’s poorest countries, where migration is seen by many as the only way into a tiny middle class. In 2017, Guatemalans received a total of $8.2 billion in remittances, 11 percent of Guatemalan GDP.

Guatemalan politicians and analysts were taken aback by the agreement, which most discovered through a White House tweet.

“One characteristic of this government is that it does whatever it wants, in spite of what the law says. This is another example,” said Sandra Morán Reyes, a congresswoman from the Convergencia party.

Sieff reported from Mexico City. Mary Beth Sheridan in Mexico City and Bob Moore in El Paso contributed to this report.

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

Wow! Talk about turning the law, logic, and human morality on its head! “Safe Third Country” agreements are supposed to be between countries with fair, due process oriented asylum systems, like the existing agreement between the U.S. and Canada. They are not a gimmick for dishonest officials like Trump and McAleenan to “outsource” legal protection responsibilities to dangerous, poor, REFUGEE SENDING countries like Guatemala that can’t possibly live up to their international obligations under the U.N Convention. 

This is nothing short of high level fraud that will result in death, torture, and abuse of asylum seekers! Not to mention that the presence of lots of deported asylum seekers will further destabilize the already unstable country of Guatemala. Trump is about to create an unmitigated international disaster by grossly unlawful conduct. Will we be able to stop him before it’s to late for us and for the rest of humanity?

 

PWS

07-27-19

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ROUNDTABLE NEWS: Judge Jeff Chase & I Quoted By Nicole Narea In Law360 On How Trump’s Latest Assault On Immigrants’ Rights Could Go Belly Up Even With Some Statutory Support!

Nicole Narea
Nicole Narea
Reporter, Law360
Jeffrey S. Chase
Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Me
Me

https://www.law360.com/immigration/articles/1182014/deportation-rule-may-violate-due-process-procedural-law

Deportation Rule May Violate Due Process, Procedural Law

By Nicole Narea

Law360 (July 25, 2019, 8:31 PM EDT) — The Trump administration’s recent expansion of its power to fast-track deportations is likely to invite legal challenges if the new process is seen as a violation of administrative law and the Constitution’s due process guarantees.

Under a rule published Monday, unauthorized noncitizens across the entire U.S. — not just those apprehended within 100 air miles of a land border — who arrived in the last two years via a land border could be subject to expedited removal proceedings and deported without an immigration court hearing. The American Civil Liberties Union has vowed to challenge the rule, which went into effect Tuesday and, by the U.S. Department of Homeland Security’s estimates, will affect more than 20,000 immigrants a year.

Contrary to the Trump administration’s claims, however, the rule may not qualify for an exception to the Administrative Procedure Act’s public notice requirements that allows the DHS secretary to unilaterally change the scope of the agency’s expedited removal authority. It also raises due process concerns for individuals who may not be able to prove their period of residency in the U.S. and for asylum-seekers who might be erroneously subject to expedited deportation.

“Unleashed expedited removal undermines our immigration system and the rule of law,” said Shoba Wadhia, a professor at Penn State Law in University Park.

Administrative Procedure Act

To justify the rule, acting DHS Secretary Kevin McAleenan invoked his authority under the Immigration and Nationality Act to have “sole and unreviewable discretion” to alter the scope of expedited removal proceedings. The rule is therefore exempt from the Administrative Procedure Act’s requirement to give the public an opportunity to comment on it before it goes into effect, DHS said in its announcement.

But Paul Schmidt, former chairman of the Board of Immigration Appeals during the Clinton administration, said there “does not appear to be any legitimate reason” for noncompliance with the APA’s notice-and-comment requirements, especially given that the rule had such a long gestation period. Trump has been considering such a rule since the first days of his administration.

Wadhia said opponents of the rule could argue that the government failed to show “good cause” that invoking notice and comment is in fact “impracticable, unnecessary, or contrary to the public interest” as the APA requires.

“The government’s position that there is a ‘good cause’ lacks integrity,” she said.

Most lawsuits that have succeeded in challenging Trump immigration policies have brought claims under the APA, including the recent challenge to a question about citizenship status on the 2020 census. The U.S. Supreme Court ultimately found that the decision to include the question on the census did not abide by the APA’s requirement that agencies provide a reasoned explanation for their actions.

Due Process Issues

Ken Johnson, dean of University of California, Davis School of Law, said the new rule could also be subject to due process challenges in light of the Supreme Court’s 1982 case Landon v. Plasencia, in which the justices applied a balancing test of interests in deciding the constitutionality of immigration admission procedures. That decision established that the interests of a noncitizen who has lived in the country for two years are much weightier than the interest at stake for a noncitizen who has been in the country for only two weeks because they have stronger ties to their community, he said.

Since the new rule expands expedited removal to apply to individuals who have lived in the U.S. for up to two years, they may be entitled to a higher standard of due process. Trump’s expansion of expedited removal also appears to exceed the limits provided by the Immigration and Nationality Act, resulting in further due process concerns.

Jeff Chase, a former legal adviser to the BIA and immigration judge, said the original intent of expedited removal was to stem an increase of inadmissible noncitizens arriving at airports in the 1990s who were paroled into the U.S. after announcing they were seeking asylum. The new rule, however, far surpasses that purpose.

“The present rule extends the application well beyond the purpose of controlling entry to the country, and now threatens to deprive those already here of their rights to apply for relief,” he said.

He said he also anticipates that expedited removal will be mistakenly applied to those beyond the scope of the rule, impacting those with a period of residence longer than two years, whose “attempts to stay under the government’s radar will create difficulty meeting their burden of establishing their period of residence in the U.S.”

Wadhia said that genuine refugees may also be erroneously denied due process, turned away as opposed to referred to an asylum officer to determine whether they have fear of persecution in their home countries, as required by law. Even if they have a credible fear interview, they are unlikely to pass in light of reports that asylum officers have been pressured to significantly lower their credible fear approval rates, Chase said.

Even U.S. citizens, lawful permanent residents, unaccompanied children and others who are exempt from expedited removal by statute could be unfairly and unlawfully targeted by the DHS, Wadhia said.

“The opportunity for profiling and violations of due process by DHS is rampant,” she said.

–Editing by Breda Lund and Kelly Duncan.

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

The Government’s case for an “emergency” exemption to the APA is laughable. This bogus “immigration emergency” is actually a human rights tragedy that has been unfolding in “super slow motion” before us since before last Thanksgiving. Virtually every part of it is a predictable result of Trump’s “maliciously incompetent” racist-driven approach to migration situations. To say that it now requires an “emergency” exemption, when Trump announced the proposed policy change in an Executive Order over two years ago, and his incompetent agencies have been fiddling around with it ever since, is simply absurd.

The Constitutional problem raised by Dean Johnson and others is very real.

And, there is no question that Trump’s DHS will misuse this authority to detain and deport lawful permanent residents and even U.S. citizens. Indeed, it’s already happening even without the regulatory change. See, e.g., “Texas-Born Student Held In Immigration Custody For Weeks Released,” https://www.huffpost.com/entry/texas-student-immigration-custody-detention_n_5d36f637e4b020cd99498588.

Yes, some Federal Judges can be tone deaf to the plight of ordinary individuals, particularly when they wrongly think that they are “above the fray.”

Perhaps we need to hope that the DHS wrongfully detains a Federal Judge, a Federal Judge’s spouse, or the child of a Federal Judge so that the message about how Trump’s misguided policies affect ALL of us gets through to the “Judicial Ivory Tower” sooner, rather than later.

PWS

07-26-19

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SUPREMES’ CONSERVATIVE MAJORITY DELIVERS BRUTAL HIT TO CONSTITUTION: Uses Bogus “Cop Out” Standing Ground To OK Trump’s Fake “Emergency” Misappropriation Of Funds To Build Wall That Congress Pointedly Refused To Fund!

https://www.washingtonpost.com/politics/courts_law/supreme-court-says-trump-can-proceed-with-plan-to-spend-military-funds-for-border-wall-construction/2019/07/26/f2a63d48-aa55-11e9-a3a6-ab670962db05_story.html

Robert Barnes
Robert Barnes
Supreme Court Reporter
Washington Post

Robert Barnes reports for the Washington Post:

The Supreme Court Friday night on a 5 to 4 vote revived the Trump administration’s plan to use $2.5 billion in Pentagon funds to build part of the wall project along the southern border.

The court’s conservatives set aside a U.S. Court of Appeals for the 9th Circuit ruling for the Sierra Club and a coalition of border communities that said a reallocation of the Defense Department money would violate federal law.

The unsigned ruling by the Supreme Court said the government “made a sufficient showing at this stage” the groups did not have proper standing to challenge transfer of money.

In a 2-to-1 decision earlier this month, the 9th Circuit majority noted that a stalemate between Congress and President Trump over the issue prompted the longest government shutdown in history. The judges reasoned that Congress made its intentions clear by allocating only about $1.4 billion for enhanced border protection.

The lower court said the public interest was “best served by respecting the Constitution’s assignment of the power of the purse to Congress, and by deferring to Congress’s understanding of the public interest as reflected in its repeated denial of more funding for border barrier construction.

After Congress’s decision earlier this year, Trump announced plans to use more than $6 billion allocated for other purposes to fund the wall, which was the signature promise of his presidential campaign

Environmentalists and the Southern Border Communities Coalition immediately filed suit to block the transfer of funds. Democrats in the House of Representatives filed a brief supporting them.

U.S. Solicitor General Noel Francisco told the Supreme Court that the 9th Circuit ruling was wrong. “The sole basis for the injunction — that the Acting Secretary exceeded his statutory authority in transferring the funds — rests on a misreading of the statutory text,” Francisco wrote. He was referring to Patrick M. Shanahan, who was acting secretary at the time.

Francisco said that the challengers did not have proper legal standing to challenge the transfer of funds. He added that even if they did, their “interests in hiking, birdwatching, and fishing in designated drug-smuggling corridors do not outweigh the harm to the public from halting the government’s efforts to construct barriers to stanch the flow of illegal narcotics across the southern border.”

The money was transferred from DOD personnel funds in response to a request from the Department of Homeland Security. Federal law allows such transfers for “unforeseen” reasons and for expenditures not previously “denied by the Congress.”

The administration contends that Congress did not reject the specific expenditures at issue, which would fund projects in California, New Mexico and Arizona.

The challengers said Congress was clear.

pastedGraphic.png

“Congress recently considered, and rejected, the same argument defendants [the government] make here: that a border wall is urgently needed to combat drugs,” said the brief from lawyers at the American Civil Liberties Union, which represented the groups.

“If defendants were nonetheless permitted to obligate taxpayer funds and commence construction, the status quo would be radically and irrevocably altered.”

The brief from the U.S. House of Representatives agreed.

“The administration refuses to accept this limitation on its authority, as clearly demonstrated by Acting White House Chief of Staff Mick Mulvaney’s statement that President Trump’s border wall ‘is going to get built with or without Congress,’ ” House General Counsel Douglas N. Letter wrote. “Under our constitutional scheme, an immense wall along our border simply cannot be constructed without funds appropriated by Congress for that purpose.”

And Letter said that the administration’s view of who is within the “zone of interest” to have standing to sue is “in reality, an argument that no one can challenge the conduct at issue here.”

Francisco moved quickly after the 9th Circuit’s July 3 ruling to ask the Supreme Court to dissolve the lower court’s injunction. It asked the justices to rule before July 26, so the Defense Department would have time to finalize construction contracts before the end of the fiscal year on Sept. 30.

Otherwise, he said, “the remaining unobligated funds will become unavailable.”

The challengers said the money already was unavailable.

The brief filed by the House said the money would not be lost, but would simply go back into the treasury, where the administration would again be free to make its request to Congress.

It noted there was no rush. “The administration has apparently completed only 1.7 of the 95 miles of border fencing Congress approved and appropriated funds for in fiscal year 2018,” it said.

The case is Trump v. Sierra Club, et al.

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

For those outside the legal community, “lack of standing” is often a legalistic ruse used by spineless judges who want to reach a particular result without explaining any real rationale on the actual merits of the case.

I just read another article by Andrew Sullivan about how our system is failing to hold Trump accountable for his lawless actions. http://nymag.com/intelligencer/2019/07/andrew-sullivan-the-american-system-is-already-failing.html.

I don’t agree with everything Sullivan says. In particular, his criticism of Democrats seems over the top. While the party has its failings, they only control 1/6 of the Government. Trying to leverage that into a strategy that preserves the American Republic by defeating Trump in 2020 is an essential endeavor, not an exercise in tilting at windmills. 

But, Sullivan’s “bottom line” might be disturbingly “on point:” 

The awful truth is that the American constitutional system is failing on almost every level. The system, it turns out, is not even strong enough to withstand one Trump term, let alone two. Trump intuited this in 2016, and if he wins reelection, as he now has a good chance of doing, what’s left of liberal democracy will be under acute duress.

The “extinction-level event” that I feared in the spring of 2016 is already here. Look around you. And it wasn’t even a fight.

The Supremes’ majority’s failure to call out Trump both for his contempt for Constitutional separation of powers and his constant use of the S

upremes themselves to “short circuit” the lower Federal Courts in an unprecedented manner contributes mightily to the demise of the rule of law.

Chief Justice Roberts might self-righteously and self-servingly proclaim that there are no “Democratic Judges” or “Republican Judges.” But, actions speak louder than words, Chiefie!

The pathetic performance of Roberts and his fellow GOP appointees in this case gives lie to his claim. And Trump, for all his failings, sees and is willing to use the sad truth that Roberts denies in a never ending attack on our country and our supposedly governing principles.

It started with the “conservative” Justices’ outrageous abdication of duty in the “Travel Ban Case.” Rather than standing up to a President who spewed obvious lies, racism, and anti-Muslim venom in support of a political agenda that clearly violated Constitutional norms, the majority signaled that as long as Trump gave them “cover” by asserting clearly contrived and fabricated “national security” grounds, they would give him a free hand to destroy the nation. These “cowardly false conservatives” now find themselves presiding over the demise of our legal system.  

And, while they might feel that they are above paying attention to the human carnage caused by the their intransigence and dereliction of duty, that misbegotten “Travel Ban” majority opinion has caused, and continues to cause, trauma and probably death to innocent refugees caught up in Trump’s unconstitutional racist onslaught.

Trump has a history of turning against those who have served him, but outlive their usefulness. Who will the “GOP Gang of Five Justices” look to for protection when the screw turns again and they become the “aliens,” stripped of their rights and humanity in Trump’s (Not So) “Brave New World?”

Those who fail to stand up to tyranny and protect the rights of others might find themselves unprotected in their hour of need!

PWS

07-27-19

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TAL @ SF CHRON: 9TH CIR. STICKS A FORK IN CORE OF “GONZO APOCALYPTO” SESSIONS’S CHILD ABUSE PROGRAM — Many Of DOJ’s Wasteful “Criminal” Prosecutions Of Harmless Asylum Seekers Were Illegal — Conservative Icon Judge Jay Bybee Becoming A Key Judicial Voice For The Rule Of Law Against Trump & Co’s Executive Abuses!

Tal Kopan
Tal Kopan
Washington Reporter, SF Chronicle

https://www.sfchronicle.com/politics/article/Ninth-Circuit-ruling-could-wipe-out-hundreds-of-14152171.php

 

Ninth Circuit ruling could wipe out hundreds of family separations convictions

By Tal Kopan

WASHINGTON — A federal appeals court in California substantially narrowed the government’s ability to charge people for crossing the border illegally — a case that could invalidate hundreds of prosecutions that were at the core of the Trump administration’s separations of migrant families last year.

The ruling comes as the federal law in the case, which makes it a crime to cross the border without authorization, is under scrutiny in the Democratic presidential campaign, with several candidates arguing it should be done away with altogether.

Wednesday’s ruling by a three-judge panel of the Ninth U.S. Circuit Court of Appeals in Pasadena could bolster the Democrats’ argument that the Trump administration is misusing the law to criminalize well-intentioned immigrants seeking asylum. It also adds further questions to the administration’s widely criticized prosecutions that resulted in thousands of family separations last year.

The Justice Department did not respond to a request for comment Thursday.

The 2-1 decision overturning a lower court ruling concerned the provision of U.S. law that makes improper entry to the country a misdemeanor, punishable by up to six months in jail. The law has three parts: entering the U.S. at an improper time or place, eluding immigration officers or entering the U.S. using false pretenses.

In an opinion written by Judge Jay Bybee, a George W. Bush-appointee, the court decided that the second part — eluding officers — could only apply to immigrants who are at a valid border crossing but who try to enter by evading detection, not immigrants picked up on the U.S. side having crossed somewhere else. That was the case with Oracio Corrales-Vazquez, a Mexican national whom officers found hiding in bushes miles from the border, whose conviction the court overturned.

Because part one of the statute already covers immigrants who surreptitiously enter where there is no legal crossing, the court held, the second part must exist to cover some separate activity. Otherwise, the court said, it would be redundant.

Circuit has already held that part one of the illegal-entry crime — entering at an improper time or place — does not apply to people who cross the border where officials can see them, in person or over cameras, and then seek out an officer and claim asylum. Those migrants are clearly not trying to avoid detection, court rulings have held.

It has become standard practice for federal authorities in Southern California to charge border crossers only using part two to avoid the defense to part one, said Kara Hartzler, an attorney with the nonprofit San Diego Federal Defenders who brought the case. Now, federal attorneys will not have part two as a back door to charge asylum seekers with illegal entry.

The court ruling means thousands of similar convictions could be thrown out, including hundreds that were the basis for family separations the Trump administration carried out last summer in the name of prosecuting a crime.

“All of the criminal cases that led to being separated from their families, … at least in San Diego, are at least convictions where the person was actually innocent because of this ruling,” Hartzler said.

David Leopold, a former president and general counsel of the American Immigration Lawyers Association, recalled then-Homeland Security Secretary Kirstjen Nielsen telling Congress the family separations were justified because the adults taken into custody had been charged with illegal-entry crimes.

“Well, here they weren’t even prosecuting those cases correctly,” Leopold said. “It puts a question mark next to every one of those convictions, which led to separation of children and in some cases the permanent separation of child from parent.”

The Trump administration separated thousands of families in the two months the program was in effect, before the president stopped it and a federal judge in San Diego ruled the practice was unconstitutional. In hundreds of those cases, parents were deported without their children, many of whom will not be reunited as the youths pursue a right to stay in the U.S.

The Justice Department does not make prosecution data public that would identify how many separated families could be affected by Wednesday’s ruling, but there could be hundreds of such cases. Nearly 4,000 immigration-related offenses were brought in the Southern District of California in 2018, according to court data, of which the most common charge is illegal entry.

The ruling also comes as some Democrats are attacking the notion that crossing the border should be a criminal rather than civil offense. Former Housing Secretary Julián Castro has made repealing the law a central focus of his presidential campaign, pointing to the Trump administration’s use of the law as a justification for separating the families last year. Twelve Democratic candidates have embraced the idea, according to a Politico tracker.

Castro and other critics of the law say it criminalizes asylum seeking. Other parts of the law make clear that an immigrant can file an asylum claim regardless of whether they entered the country legally.

Bill Hing, professor of law and migration studies at University of San Francisco, supports Castro’s arguments to remove the criminal part of the law, saying deportation is “already a pretty severe penalty” for anyone found not to have a valid asylum claim.

“Especially now, the vast majority of people gathered at the border are coming to seek protection — why criminalize that activity?” Hing said. “The statute should require something much more criminal in intent, and when it’s just simply to cross the border to seek protection, I think there’s a good argument that we should decriminalize that activity.”

The ruling applies only to the nine states covered by the Ninth Circuit, including California and Arizona along the Mexican border. But Hing says lawyers could seek similar rulings in other border states.

“Conceptually it actually makes sense,” Hing said. “It doesn’t make sense to have two parts of a law where the same act could qualify for the violation of both.”

 

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

Appointed by President George W. Bush, Judge Jay Bybee has been a controversial figure. His confirmation was strongly opposed by many Human Rights and Civil Rights groups because of his role in justifying torture while serving in the Bush DOJ.

Nevertheless, in this case, and in the earlier case of East Bay Sanctuary Covenant v. Trump, blocking an illegal attempt by Trump to bar Central American asylum seekers, Judge Bybee has been a strong and courageous voice for the rule of law, reason, and Constitutional separation of powers in the face of Trump’s intentional overreach in the area of immigration. https://immigrationcourtside.com/2018/12/10/mark-joseph-stern-slate-on-why-judge-bybees-65-page-evisceration-of-trumps-lawless-asylum-order-is-so-important-the-next-time-trump-floats-a-flagrantly-lawless-idea-then/.

Indeed, many observers believe that Judge Bybee’s scholarly opinion in East Bay Sanctuary was key to Chief Justice Roberts voting with the Supremes’ so-called “liberal wing” to reject the Administration’s bogus attempt to “end run” the system in that case by going directly to the Supremes without allowing the lower court proceedings to be completed. https://immigrationcourtside.com/2018/12/21/i-was-right-barely-chief-justice-roberts-saves-asylum-rule-of-law-administrations-request-to-implement-order-truncating-asylum-law-turned-down-5-4/.

Unfortunately, this much needed decision comes too late for many families who have been irreparably damaged by “Gonzo Apolcalypto’s” vile illegal and immoral abuse of Government prosecutorial authority. It’s too bad that there does not appear to be any way of holding “Gonzo Apocalypto” Sessions personally liable for his abuse of office, unconscionable distortion of our justice system, and the lifetime damage he inflicted on so many innocent children and families.

The case is  US v. Oracio Corrales-Vazquez, and here’s a link to the full opinion: https://www.courtlistener.com/pdf/2019/07/24/united_states_v._oracio_corrales-Vazquez.pdf

And, of course, thanks to Tal for her continued incisive reporting on the most important issues facing America!

PWS

07-26-19

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