Judicial Review – Page 72 – immigrationcourtside.com

READ ABOUT THE EXCITING LIFE & TIMES OF “OUR GANG” MEMBER JUDGE CHARLIE PAZAR – Special Feature in the “Memphis Lawyer”

https://issuu.com/memphisbarassociation/docs/ml_2018_volume_3

The article begins on page 8.

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Congrats Charlie on your outstanding career and all of your many contributions to scholarship, justice, and Due Process in America! And thanks for the plug on the activities of “Our Gang!”

If my memory serves correctly, I actually brought Charlie into the “immigration family” by offering him a job in the General Counsel’s Office of the “Legacy INS” in 1987, just before I departed for Jones Day! I always did have a pretty good “eye for legal talent” if I do say so myself. What a true pleasure to have an opportunity to work with Charlie and my other great colleagues again in retirement!

Due Process Forever!

PWS

11-05-18

SCOFFLAW KAKSITOCRACY: Trump Politicos Were Advised That “Zero Tolerance” & Family Separation Likely Illegal & Unconstitutional – They Went Ahead Anyway!

https://www.washingtonpost.com/news/posteverything/wp/2018/10/25/feature/civil-servants-said-separating-families-was-illegal-the-administration-ignored-us/

Scott Shuchart writes in the Washington Post:

The meeting was way overdue, and it wasn’t going well.

It was May 21. The Department of Homeland Security, where I worked as a senior adviser in the Office for Civil Rights and Civil Liberties, had been making a show of prosecuting undocumented immigrant parents for weeks, cleaving them from their children without paying much attention to where the family members went or setting up any procedure for tracking and reuniting them later.

My office had played a central role, for years, in Homeland Security’s treatment of families and children. But when a cadre of Trump administration political appointees put the family separation plan into motion, neither they nor the career staff in the immigration enforcement agencies under DHS consulted with the civil servants in my office. When media reports throughout April and May led us to understand what was going on, we had urgent questions: What exactly was the policy? What had DHS’s front-line agents in Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) been told to do? How had the department assessed the risk that litigation would interfere with the policy? How was this justified in light of our treaty obligations toward refugees? And why was the department pushing out transparently misleading — or simply false — statistics to justify these steps? We were obliged, under the law that created our office, to register our objections that the administration was knowingly violating people’s rights.

But the top political appointee at the May meeting — John Mitnick, the experienced, Senate-confirmed general counsel — and his deputy seemed confused that the civil rights office would see any cause for concern. The administration was claiming in public that a policy of prosecuting all border crossers didn’t target families as such, so it could not present any legal issues. And if there were any issues, they hadn’t been raised ahead of time.

That was false. The next day, I called around to colleagues who confirmed that there had been multiple interagency phone calls and documents, involving the State and Justice departments as well as DHS, making clear that lawyers throughout the government worried that deliberately separating families could violate migrants’ rights under humanitarian treaties or U.S. law. But the political appointees simply didn’t listen. And a few weeks later, I came across an April 24 memo — signed by the very officials I had met with a month later — acknowledging, but dismissing, the legal risks. Even worse, it encouraged indicting immigrants specifically because doing so would justify separating families, arguing that the government’s “legal position” on “separating adults and children through the immigration process . . . is likely strongest [when] separation occurs in connection with a referral of an adult family member for criminal prosecution.”

Mitnick, through a DHS spokeswoman contacted by The Washington Post, declined to comment for this story. That spokeswoman, Katie Waldman, said: “The Department of Homeland Security does not disclose or comment on privileged legal advice provided by our attorneys to the Secretary or other officials, and therefore, unfortunately, we are not in a position to refute false narratives put forward by a former employee. We note, however, that in order to address the crisis at the border, the Trump Administration made a decision to enforce long-standing U.S. law and refer for prosecution under 8 U.S.C. § 1325(a) adults who crossed into the United States illegally. As we have repeatedly stated, the policy was to enforce the law, not to separate families.”

She also sent a statement from Cameron Quinn, the Trump appointee who runs the office I worked in: “I participated in the meeting in question. It was a brief, general discussion, and Mr. Mitnick made it clear that he desired to work collegially with our office.”

By law, our job in that office was to ensure that “the civil rights and civil liberties of persons are not diminished” by DHS’s programs. When it became clear that the department would be tearing families apart and — thanks to incompetence, dishonesty and sheer disinterest — had no reasonable plan to put them back together, I realized I could not do that. A few weeks after that meeting, I quit my job and left public service, carrying a profound sense of failure.

Children and parents from Central America, part of a caravan trying to reach the United States, wait to apply for asylum in Mexico at a checkpoint in Ciudad Hidalgo on Oct. 20. (Ueslei Marcelino/Reuters)

The government formally announced the family separation policy in April. The point was clear, as several officials later admitted: By threatening to separate their children, the administration hoped to deter Central American asylum seekers from coming here in search of humanitarian protection. Then-Homeland Security Secretary John Kelly had suggested the practice during a CNN interview in March 2017, and it had been gaining support in the White House since then.

Many senior civil servants at DHS believed that the policy violated the civil and human rights of migrants. (Many of them, like me, were trained and licensed attorneys, though our role was to give policy advice, not legal advice.) Crossing the border to surrender immediately to authorities and claim asylum is protected by the United Nations refugee protocol signed by the United States. Even for families outside that protection, the substantive due process principle in the Constitution suggests that it is illegitimate to threaten to harm or abscond with someone’s children to deter the commission of a misdemeanor. (First-time unlawful entry is the lowest level of federal crime.)

During past surges in border crossings, such as in 2005, 2006 and 2007 under George W. Bush and 2014 under Barack Obama, the civil rights office was central to planning humane and effective protections for migrants as they were arrested, detained, screened and, if they passed initial “credible fear” screenings, placed into immigration court proceedings. But Trump appointees such as White House adviser Stephen Miller, Attorney General Jeff Sessions, DHS Secretary Kirstjen Nielsen, CBP Commissioner Kevin McAleenan and U.S. Citizenship and Immigration Services (USCIS) Director L. Francis Cissna — along with many deputies, assistants and enablers inside ICE and CBP who dreamed up the “zero tolerance” policy — didn’t consult career experts like me: not when it was being considered last year, not when it was unveiled and not for the critical weeks afterward, even as we begged to share our legal and policy analyses.

My job was to ensure that the government did not violate clearly established individual rights, and the Trump administration was pushing a policy whose principal aim was to do just that. My colleagues and I identified a number of constitutional provisions and related case law holding that parents had rights to due process that could limit the ability of the government to separate them from their children for civil immigration violations. That meant that once parents served their typically short criminal sentences for crossing the border illegally, they should have been reunited with their children. Our research also suggested that threatening to detain children separately, and threatening civil detention generally to deter future conduct, was probably unconstitutional.

In our capacity as a gateway for public complaints about DHS, my office was analyzing hundreds of incidents of family separation, including dozens sent over by career staff at the Department of Health and Human Services, which was taking custody of children who had been separated from their parents. We noticed early that CBP and ICE weren’t providing HHS with proper records to allow families to be reunited or pursue their immigration cases jointly. We recommended that officials tell parents promptly and clearly where their children were going, how they could be reached and how family members could get them out of government custody while the parents were detained. Perhaps most urgently, we tried to ensure that children with serious disabilities were not thrown into a system unprepared to care for them. As allegations emerged of chaotic separations and deliberate lies — parents being told that their children were headed to a shower when they were instead placed in another agency’s custody — we started drafting guidelines and training for the Border Patrol agents on the ground. Above all, we tried to ring the alarm that the legal, strategic and human dimensions of the policy hadn’t been thought through, needed fast improvement and posed a massive liability for the government.

My colleagues and I learned while reviewing internal DHS documents through April and May that CBP had, the previous fall, undertaken a pilot project of prosecuting parents with small children who crossed the border illegally near El Paso, leading to a wave of separated families. But when we asked the acting second-ranking CBP official about it, he denied having any information.

That was also false. The formal memo to Nielsen from CBP, ICE and USCIS recommending the family separation policy had justified it on the basis of this same El Paso project, including misleading statistics that had already been debunked by Vox when DHS tried to pass them off to reporters.

Every attempt to raise civil rights concerns led nowhere: a lengthy staff memo to my boss, the top civil rights official; efforts to explain in meetings the toll on our staff from investigating complaints of children and parents who had been separated, without any communication to get back together; multiple efforts to schedule, and reschedule, a briefing that James McCament, the head of the DHS Office of Policy, had promised near the start of the crisis but never convened. Civil servants advanced recommendations for mitigating the worst of the harm; we suggested improving record-keeping, giving separated parents and children better information, and permitting more regular phone calls among families.

After hundreds of complaints filed by migrant children, parents and advocates on their behalf, my office finally managed to arrange a meeting in June with CBP managers to understand how they were separating families and to present ideas about how to do it in a more humane way, if they insisted on doing it. My notes from the meeting record my boiling frustration with the absurd answers we received. Border Patrol agents dismissed our offer to train them on how to speak to children after ripping them from their families. “No,” we were told, “many of our agents are parents themselves. They are very empathetic to the child’s needs and will know what to do.” Had officials in Washington directed agents to record family members’ names and information, so they could later be reunited? “I think we sent an email.” Can we see the email so we know what agents were directed to do? “Um, I’d have to find it.” (The official never did.) Is there a written policy on how to determine whether children have suffered trauma or have some other condition that would mean separating them from their parents would do too much harm? “No, we have no need for written policy. It’s simply ingrained in law enforcement culture.”

The culture ingrained at CBP, though, is one where the Border Patrol’s union opened its podcast (“The Green Line”) with the oath of the Night’s Watch from “Game of Thrones” — the pledge of a band of warrior monks to protect a magical kingdom from an army of ice zombies. If federal law enforcement agents see Central American children as the moral equivalent of the frozen undead, we can’t expect them to understand intuitively how to detain and process them humanely without training, guidance and leadership. That’s why my colleagues and I were pushing for record-keeping, communication and other policies that Trump appointees ignored. (Representatives of the Border Patrol union did not immediately return requests for comment from The Post.)

A U.S. Border Patrol agent acknowledges a family that had illegally crossed the Rio Grande from Mexico in Fronton, Tex., on Oct. 18. (Adrees Latif/Reuters)

It would be easy to see all this as part of the federal sausage-making, the usual intentional delays and risk-managing memos that bureaucrats deploy. But this level of dishonesty and subterfuge was unusual. This month, the DHS inspector general released a report making clear that the incompetence in managing family separation was pervasive, from a lack of planning, to “information provided to alien parents [that] resulted in some parents not understanding that their children would be separated from them,” to false public claims of having a “central database” of parents and children.

The Department of Homeland Security is filled with excellent, dedicated public servants. But it also has enormous authority and the power to enforce thousands of laws well or badly. Its leaders have a responsibility to give their people orders that they can competently and ethically execute, and the tools and guidance to do so. The family separation crisis represented a new frontier in weaponizing DHS’s authority, and its borderline competence, to disastrous effect. Front-line officers weren’t given enough guidance, and their managers in the field didn’t do enough to help them figure it out. Only the administration’s naivete in failing to predict the bipartisan public outrage kept it from being worse.

But most culpable were the high-level appointees, unwilling to take ownership of what they’d decided to do; lying to their staffs in the expectation that nobody really cared what happened to poor Central American kids; cynical about the notion that most of us who swear an oath to uphold the Constitution actually mean it. I cast about for more to do, but within a month of that June meeting, I realized there was no way to keep my oath and my job.

I quit.

Outlook • Perspective

Scott Shuchart was a senior adviser at the Department of Homeland Security’s Office for Civil Rights and Civil Liberties from 2010 to 2018. He is a non-resident senior fellow at the Center for American Progress. Follow @scottshuchart

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Seems like these are precisely the type of knowingly lawless, extra-legal actions that personal liability under the “Bivens doctrine” is supposed to discourage and prevent. It remains to be seen whether the Federal Courts, particularly the Supremes, will have the backbone to hold scofflaw Government officials like Sessions, Nielsen, Miller, & co. personally accountable for their intentional perversions of the rule of law. Recently, the Supremes have indicated that a majority would like to narrowly limit or even abolish Bivens liability. Just when the country needs it most to rein in an out of control Administration!

PWS

10-29-18

TAL @ SF CHRONICLE: Administration “Discovers” More Separated Children — Have Others “Slipped Through The Cracks?”

New questions raised on Trump’s family separations as 14 children discovered

By Tal Kopan

WASHINGTON — The Trump administration failed to recognize that 14 children in its care for months had been separated from their families at the Mexican border, officials conceded in a court filing late Thursday.

The disclosure raises fresh questions about whether the administration neglected to account for additional children after separating them from their parents under its “zero tolerance” immigration policy this spring. Two recent government reports faulted the administration’s tracking efforts, and one said officials feel no obligation to find children who were released to other homes before a judge ordered an accounting of the youths, suggesting the total separated under the policy may never be known.

Seven of the 14 children’s parents have criminal histories that disqualify them from reunification, officials with the Health and Human Services Department told a federal judge in San Diego. The judge demanded in June that the administration account for every child separated under the enforcement strategy ordered by Attorney General Jeff Sessions.

All of the newly discovered children are 5 years old or older.

More:

https://www.sfchronicle.com/politics/article/New-questions-raised-on-Trump-s-family-13338722.php

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While still picking up the pieces of their last border enforcement fiasco, the Administration is off and running on new policies that potentially will be found to be in violation of law.

PWS

10-26-18

ASHCROFT EVISCERATED THE BIA – NOW SESSIONS PLANS TO POUND THE LAST NAIL INTO THE COFFIN! — Quotes BY “Our Gang” Member Judge Jeffrey Chase!

https://thehill.com/regulation/court-battles/412571-sessions-seeks-to-expand-power-on-immigration-cases

Lydia Wheeler writes The Hill:

Attorney General Jeff Sessions appears to be exploring a rule that would expand his judicial power, and that some say would allow him to drastically reshape federal immigration policy.

In a notice posted this fall, the Department of Justice (DOJ) announced it is planning to propose a change to the circumstances in which the attorney general can take and rule on immigration cases.

Under past practice, immigration experts say attorneys general have only stepped in to affirm or overturn cases once the Board of Immigration Appeals (BIA) has given a ruling. Such interventions by attorneys general have also been rare.

Under the new proposal, the attorney general could make rulings on immigration cases before they get to the BIA.

“It’s very disturbing,” said Thomas Saenz, president and general counsel at MALDEF, the Mexican American Legal Defense and Educational Fund.

He argued the proposed change, which was included in the fall semiannual regulatory agenda released by the White House, would give the attorney general too much power.

“This is an attorney general that has already demonstrated when he has done this under existing rules that he is biased, inhumane and, frankly, probably influenced by some racist views,” Saenz said.

DOJ spokeswoman Sarah Sutton called Saenz’s characterization “absurd and woefully ignorant.”

“It is widely acknowledged that our immigration system is broken and the attorney general has been steadfast in his pursuit of a lawful and functional immigration system where all Americans can thrive,” she said.

“The Department of Justice’s record demonstrates a commitment to the safety and security of all Americans while treating all persons with fairness and dignity. To suggest otherwise is to ignore facts.”

The notice in the regulatory agenda, which maps out agency actions for the coming year, said the cases where the attorney general could intervene would include “those pending before the Board of Immigration Appeals but not yet decided and certain immigration judge decisions regardless of whether those decisions have been appealed to the BIA.”

Plans for the proposed rule were first listed on the spring regulatory agenda released in May. At that time, the expected release date was September 2018. The action has now been delayed until March.

Sessions has already been aggressive in getting involved with BIA cases even without the proposed rule change.

Since taking office in February 2017, Sessions has stepped in seven times after the BIA has made a decision, and offered five rulings — each adverse to the immigrant.

By comparison, the two attorneys general who served during former President Obama’s eight years in office took over just four cases, said Katrina Eiland, a staff attorney with the American Civil Liberties Union’s Immigrants’ Rights Project.

Rulings from the attorney general are enormously consequential because they set precedent for immigration judges to follow.

In June, Sessions essentially made it impossible for victims of domestic or gang violence to qualify for asylum by overturning a BIA decision to grant asylum to a Salvadoran woman who said she was a victim of domestic abuse.

“The mere fact that a country may have problems effectively policing certain crimes—such as domestic violence or gang violence—or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim,” he wrote in his opinion.

Some have argued this authority to adjudicate immigration cases is a way for attorneys general to advance immigration policy.

Alberto Gonzales, who served as attorney general under former President George W. Bush, suggested in a 2016 Iowa Law Review article he co-wrote that it could have been a less controversial way for Obama to roll out his Deferred Action for Childhood Arrivals program.

“This authority, which gives the Attorney General the ability ‘to assert control over the BIA and effect profound changes in legal doctrine,’ while providing ‘the Department of Justice final say in adjudicated matters of immigration policy,’ represents an additional avenue for the advancement of executive branch immigration policy that is already firmly embodied in practice and regulations,” the article said, quoting a Fordham Law Review article written by Joseph Landau.

Jeffrey Chase, who served as an immigration judge and a senior legal immigration adviser at the BIA under former President Clinton, said the DOJ’s rule would give Sessions free range to change the law in whatever way he feels, whenever he wants.

He said it would bring the system into an era of uncertainty over what is settled law.

Unlike federal district and circuit courts that are part of the federal judiciary branch, immigration courts fall under DOJ control. Immigration judges are DOJ employees and do not serve lifetime appointments like federal district and circuit court judges.

Immigration advocates say Sessions has already taken steps to cut away at their judicial independence.

DOJ announced in an April memo obtained by The Wall Street Journal that it was setting quotas to expedite immigration cases and NPR Newsreported in May that Sessions had ordered judges to stop putting deportations on hold by closing out cases while immigrants apply for visas and green cards.

Immigration advocates say the plan in the regulatory agenda appears to be another step to further cut back their power.

“It appears to be another move to further control the immigration courts and that’s problematic for due process and fairness in giving immigrants a fair shake in their immigration proceedings,” Eiland said.

Chase said the good news, from his perspective, is the policies set through rulings from the attorney general can be easily undone by a new administration.

Still, experts are alarmed by what they see as a broader effort by Sessions to rewrite immigration law.

“It seems transparent the intent to allow the attorney general to manipulate and distort the process by short-circuiting the normal procedures in order to impose the outcome he seeks,” said Lucas Guttentag, who served as senior counsel to Secretary of Homeland Security under the Obama administration.

But there is a question as to whether DOJ can legally do what it’s planning.

“I don’t know if they’ll get away with it,” Saenz said. “I think there are limits to his discretion and this would probably be very troubling to a court because it circumvents the due process provided in the immigration system.”

Decisions from the BIA and final rulings from the attorney general can be appealed to a federal circuit court, but Chase said Sessions’s rulings have not been final. He has instead sent cases back to immigration judges for further action, which delays the opportunity to appeal.

“He’s been very clever about not leaving any case in a position where it could be [directly] appealed,” Chase said.

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So, Sessions proposes to essentially strip the BIA of its authority to render major legal precedents. Their primary role would become insuring that U.S. Immigration Judges “toe the White Nationalist lines” laid down by Sessions or his successors. So much for the “expertise” of the BIA or the importance of developing policies through case-by-case litigation. I guess Sessions’s “precedents” have all been “cooked” in advance by restrictionist groups. No need to pay attention to facts or legal arguments that conflict with Sessions’s long-held racist-restrictionist views on immigration.

Session’s proposed “takeover” of the BIA’s appellate functions also raises some interesting issues:

In view of his political statements, can he function as an independent quasi-judicial adjudicator in individual cases? Article IIIs have applied judicial rules of conflict and disqualification to individual IJs and BIA Members. (Indeed, I seem to remember a case in which an Article III got upset because then-Chair Dave Milhollan unwittingly voted in a case that had passed through Appellate.Counsel while he was at INS.) If IJs or BIA Members made political statements and prejudgements of pending issues they would be disqualified from individual cases. Why not Sessions? Judges are not supposed to have prosecutorial roles. But Sessions clearly fancies himself the “chief prosecutor!”
Since he isn’t a true “independent quasi-judicial adjudicator,” and has no particular expertise in immigration adjudication, why should Sessions get Chevron deference?
He’ll probably be gone soon. But, that doesn’t mean his successor will abandon the restrictionist immigration agenda. Indeed, it is almost inconceivable that Trump would nominate anyone who is not a committed White Nationalist restrictionist as a replacement.

Meanwhile, what’s the purpose of an appellate board whose primary function appears to be rubber stamping one-sided political decisions?

PWS

10-24-18

LEXISNEXIS: New Suit Highlights How Sessions & Other Trumpsters Knowingly & Intentionally Violate U.S. Asylum Laws!

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/outsidenews/posts/new-legal-filing-links-high-level-trump-officials-to-asylum-turnback-policy—al-otro-lado-inc-v-nielsen

Posted by Dan Kowalski @ LexisNexis:

New Legal Filing Links High-level Trump Officials to Asylum “Turnback Policy” – Al Otro Lado, Inc. v. Nielsen

American Immigration Council, Oct. 16, 2018 – “In a new court filing, asylum seekers and an immigrant rights group are challenging the Trump administration’s policy and practice of turning back asylum seekers at ports of entry along the U.S.-Mexico border. Friday’s filing directly links high-level Trump administration officials to an official “Turnback Policy,” ordering U.S. Customs and Border Protection (CBP) officials to restrict the number of asylum seekers who can access the asylum process at ports of entry. The Turnback Policy compounds other longstanding border-wide tactics CBP has implemented to prevent migrants from applying for asylum in the U.S., including lies, intimidation, coercion, verbal abuse, physical force, outright denials of access, unreasonable delay, and threats—including family separation.

The new filing was brought by the Los Angeles and Tijuana-based organization Al Otro Lado, Inc. and individual asylum seekers who are collectively represented by the Center for Constitutional Rights, the Southern Poverty Law Center, and the American Immigration Council. The attorneys allege that the Trump administration policy and practice violate U.S. and international law and subject vulnerable asylum seekers to imminent danger, deportation, or death.

“Every day we work with survivors of horrific physical and sexual violence, doing our best to provide the necessary resources to extremely vulnerable individuals. They come to our border to seek safety for themselves and their children. The United States, in implementing the Turnback Policy, cavalierly rejects thousands of these individuals, retraumatizing them and stranding them alone and destitute. It is hard to overstate the cruelty with which CBP operates,” said Nicole Ramos, Border Rights Project director at Al Otro Lado.

Attorneys say practices under the Turnback Policy are directly attributable to high-level Trump administration officials, including Attorney General Jeff Sessions and Department of Homeland Security Secretary Kirstjen Nielsen. The filing cites Sessions’ characterization of asylum seekers as deliberately attempting to “undermine our laws and overwhelm our system,” and Nielsen’s reference to the legally required process of receiving and processing asylum seekers at the border as a “loophole.” The filing also quotes U.S. Customs and Border Protection officers as stating, “We have orders not to let anybody in.”

“Internal CBP documents released in this case reveal that high-level CBP officials authorized a Turnback Policy as early as 2016 to restrict the flow of asylum seekers to the U.S-Mexico border,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “The Turnback Policy has escalated under the Trump administration and has been buttressed by a wide range of unlawful tactics that CBP uses to deny asylum seekers access to the protection they deserve.”

Said Baher Azmy, legal director of the Center for Constitutional Rights, “Ever since the horrors of World War II, the world’s nations have committed to giving asylum seekers the opportunity to seek safe haven. The Trump administration has turned its back on this most elementary humanitarian principle, in violation of U.S. and international law, and is subjecting vulnerable men, women and children who are fleeing horrific conditions at home to continued terror, violence and in some cases, death.”

Asylum seekers are fleeing persecution in their home countries, and suffer unspeakable harm en route to the United States at the hands of Mexican government officials, cartels, and gangs. When they are turned away at ports of entry, the lawsuit alleges, they are compelled to either enter the U.S. illegally and be prosecuted, stay trapped in Mexico where they are targeted by criminal groups, or return home to face persecution and death. The filing recounts an extensive array of inaccurate information and abusive treatment those seeking asylum have faced at the hands of U.S. border officials, including that the U.S. is no longer providing asylum or that people from specific countries are not eligible; yelling at, harassing, and assaulting asylum seekers and their children; threatening to take children away from their parents; and setting up “pre-checkpoints” that prevent asylum seekers from reaching the U.S. border. Over four consecutive days in March, CBP officials turned away Guatemalan asylum seekers, saying “Guatemalans make us sick.”

The filing amends a previous filing challenging CBP’s turnbacks of asylum seekers at ports of entry. The challenged practices were initially implemented in 2016 and greatly exacerbated by the Trump administration.

Read the filing here.

For more information, visit CCR’s case page and the American Immigration Council.

American Immigration Council, Oct. 16, 2018 – “In a new court filing, asylum seekers and an immigrant rights group are challenging the Trump administration’s policy and practice of turning back asylum seekers at ports of entry along the U.S.-Mexico border. Friday’s filing directly links high-level Trump administration officials to an official “Turnback Policy,” ordering U.S. Customs and Border Protection (CBP) officials to restrict the number of asylum seekers who can access the asylum process at ports of entry. The Turnback Policy compounds other longstanding border-wide tactics CBP has implemented to prevent migrants from applying for asylum in the U.S., including lies, intimidation, coercion, verbal abuse, physical force, outright denials of access, unreasonable delay, and threats—including family separation.

The new filing was brought by the Los Angeles and Tijuana-based organization Al Otro Lado, Inc. and individual asylum seekers who are collectively represented by the Center for Constitutional Rights, the Southern Poverty Law Center, and the American Immigration Council. The attorneys allege that the Trump administration policy and practice violate U.S. and international law and subject vulnerable asylum seekers to imminent danger, deportation, or death.

“Every day we work with survivors of horrific physical and sexual violence, doing our best to provide the necessary resources to extremely vulnerable individuals. They come to our border to seek safety for themselves and their children. The United States, in implementing the Turnback Policy, cavalierly rejects thousands of these individuals, retraumatizing them and stranding them alone and destitute. It is hard to overstate the cruelty with which CBP operates,” said Nicole Ramos, Border Rights Project director at Al Otro Lado.

Attorneys say practices under the Turnback Policy are directly attributable to high-level Trump administration officials, including Attorney General Jeff Sessions and Department of Homeland Security Secretary Kirstjen Nielsen. The filing cites Sessions’ characterization of asylum seekers as deliberately attempting to “undermine our laws and overwhelm our system,” and Nielsen’s reference to the legally required process of receiving and processing asylum seekers at the border as a “loophole.” The filing also quotes U.S. Customs and Border Protection officers as stating, “We have orders not to let anybody in.”

“Internal CBP documents released in this case reveal that high-level CBP officials authorized a Turnback Policy as early as 2016 to restrict the flow of asylum seekers to the U.S-Mexico border,” said Melissa Crow, senior supervising attorney with the Southern Poverty Law Center’s Immigrant Justice Project. “The Turnback Policy has escalated under the Trump administration and has been buttressed by a wide range of unlawful tactics that CBP uses to deny asylum seekers access to the protection they deserve.”

Said Baher Azmy, legal director of the Center for Constitutional Rights, “Ever since the horrors of World War II, the world’s nations have committed to giving asylum seekers the opportunity to seek safe haven. The Trump administration has turned its back on this most elementary humanitarian principle, in violation of U.S. and international law, and is subjecting vulnerable men, women and children who are fleeing horrific conditions at home to continued terror, violence and in some cases, death.”

Asylum seekers are fleeing persecution in their home countries, and suffer unspeakable harm en route to the United States at the hands of Mexican government officials, cartels, and gangs. When they are turned away at ports of entry, the lawsuit alleges, they are compelled to either enter the U.S. illegally and be prosecuted, stay trapped in Mexico where they are targeted by criminal groups, or return home to face persecution and death. The filing recounts an extensive array of inaccurate information and abusive treatment those seeking asylum have faced at the hands of U.S. border officials, including that the U.S. is no longer providing asylum or that people from specific countries are not eligible; yelling at, harassing, and assaulting asylum seekers and their children; threatening to take children away from their parents; and setting up “pre-checkpoints” that prevent asylum seekers from reaching the U.S. border. Over four consecutive days in March, CBP officials turned away Guatemalan asylum seekers, saying “Guatemalans make us sick.”

The filing amends a previous filing challenging CBP’s turnbacks of asylum seekers at ports of entry. The challenged practices were initially implemented in 2016 and greatly exacerbated by the Trump administration.

Read the filing here.

For more information, visit CCR’s case page and the American Immigration Council.

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It’s a strange system where the victims of law violations are punished while the “perps” — folks like Sessions, Nielsen, Miller, etc — walk free and are allowed to continue their lawless behavior.

Even stranger: A guy like Sessions — a scofflaw “Jim Crow Throwback” if there ever was one — has the absolute audacity to whine, complain, and even threaten when occasionally Federal Judges intervene in relatively limited ways to force him and even Trump to comply with our country’s laws and our Constitution. But, I suppose that’s what free speech is all about. Nevertheless, Sessions’s freedom to express his opinions that mock, distort, and mischaracterize our laws doesn’t necessarily entitle him to act on those opinions in a manner inconsistent with those law.

PWS

10-18-18

READE LEVINSON & KRISTINA COOKE @ REUTERS: HASTE MAKES WASTE: Administration’s Short- Sighted Legal Strategies & Mismanagement Continue To Create Unnecessary Chaos In Already Highly Dysfunctional U.S. Immigration Court System!

http://flip.it/3.h7Lq

Reade Levinson & Kristinas Cooke report for Reuters:

(Reuters) – Liliana Barrios was working in a California bakery in July and facing possible deportation when she got a call from her immigration attorney with some good news.

The notice to appear in court that Barrios had received in her deportation case hadn’t specified a time or date for her first hearing, noting that they would be determined later. Her lawyer was calling to say that the U.S. Supreme Court had just issued a ruling that might open the door for her case, along with thousands of others, to be dismissed.

The Supreme Court case involved Wescley Fonseca Pereira, a Brazilian immigrant who overstayed his visa and was put into deportation proceedings in 2006. The initial paperwork he was sent did not state a date and time of appearance, however, and Pereira said he did not receive a subsequent notice telling him where and when to appear. When he failed to show up in court, he was ordered deported.

The Supreme Court ruled that paperwork failing to designate a time and place didn’t constitute a legal notice to appear in court.

The ruling sparked a frenzy of immigration court filings. Over ten weeks this summer, a record 9,000 deportation cases, including Barrios’, were terminated as immigration attorneys raced to court with challenges to the paperwork their clients had received, a Reuters analysis of data from the Executive Office for Immigration Review shows. The number represents a 160 percent increase from the same time period a year earlier and the highest number of terminations per month ever.

For a graph of the trend, click here: tmsnrt.rs/2QCbeJZ

Then, just as suddenly as they began, the wave of case terminations stopped. On August 31, in a different case, the Board of Immigration Appeals (BIA) ruled that charging documents issued without a date and time were valid so long as the immigrant received a subsequent hearing notice filling in the details, as is the usual procedure.

A Department of Justice official said that as a result of the BIA decision, the issues “have been solved.”

The Department of Homeland Security (DHS) did not respond to requests for comment, but the agency laid out its thoughts on the terminations in court documents opposing the motions to terminate. In a San Diego case, DHS wrote that the motions were based on a “misreading” of the Supreme Court decision. “If read in a manner most favorable to the respondent, the practical impact would be to terminate virtually all immigration proceedings.” The Supreme Court decision “nowhere purports to invalidate the underlying removal proceedings,” DHS wrote.

The dueling interpretations will now be weighed by a federal appeals court, which could uphold or overturn the BIA decision in coming months. The case could ultimately end up before the Supreme Court.

“ONE GASP”

Having a removal case terminated, as Liliana Barrios and many others did over the summer, does not confer legal status, but it does remove the threat of imminent deportation and provide an immigrant time to pursue legal ways of staying in the country, such as asylum or by accruing enough time in the country to be eligible to stay through a process known as cancellation of removal.

The Supreme Court ruling provided a “brief glimmer of hope”, said immigration lawyer Aaron Chenault, “like when you are almost drowning and you get one gasp.”

The Department of Homeland Security can appeal the case dismissals or it can restart deportation proceedings by issuing a new notice to appear. By the end of August, the most recent date for which records are available, government attorneys had appealed only 2,100 of the cases terminated in the wake of the decision, according to a Reuters analysis.

Roxie Rawls-de Santiago, an immigration attorney in New Mexico, said that for some of her clients, even a few months of not being in active deportation proceedings could make a difference. One woman whose case was terminated, for example, has a U.S. citizen daughter who turns 21 next year, the age at which she can sponsor her mother for permanent residency, and the woman is now hopeful she can stave off deportation proceedings until then.

CHAOS IN THE COURTS

At the Department of Justice, which administers the immigration courts, chaos reigned in the weeks following the June decision. Immigration judges and officials struggled to agree on an interpretation of the Supreme Court ruling, according to internal emails obtained through a Freedom of Information Act request by immigration attorney Matthew Hoppock and shared with Reuters.

“The issue has VERY large implications, in that DHS has put the actual “time and date” on VERY, VERY few NTA’s, if any. Any guidance would be helpful,” wrote Memphis immigration judge Richard Averwater in an email to an assistant chief immigration judge days after the ruling. Averwater declined to discuss the email further.

In San Francisco alone, immigration judges terminated 2,000 cases between June 21 and August 31, sometimes more than 100 a day, according to a Reuters analysis. In San Antonio, more than 1,200 cases were terminated.

“The court was getting dozens and dozens and dozens of those a day,” said Ashley Tabaddor, president of the immigration judges’ union. “The large number of terminations that happened were directly a result of Pereira.”

The door to mass dismissals for such cases could be reopened or remain closed depending on how the 9th U.S. Circuit Court of Appeals rules on the Board of Immigration Appeals decision that stopped them.

For Barrios, 20, who was caught crossing the Southern border illegally with her toddler two years ago, her dismissal has meant more time to file for a special visa for immigrants under the age of 21 who have been abandoned or neglected. Barrios said she was abandoned by her mother.

Having her case terminated “lifted the pressure a bit,” said Barrios, who makes cream for cookies at a wholesale bakery in California during the day and studies English at night. The Department of Homeland Security has appealed her case termination.

Reporting by Kristina Cooke and Reade Levinson; Editing by Sue Horton and Paul Thomasch

Our Standards:The Thomson Reuters Trust Principles.

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Gee whiz, my time of solving Immigration Enforcement’s legal problems for them ended over three decades ago. But it sure seems to me that taking the following very “doable” steps would have forestalled this mess:

Conceding the respondent’s jurisdictional point “arguendo” (in other words, without taking a position on whether it was legally correct or not);
Immediately reissuing and serving the Notice to Appear (“NTA”) containing a correct time, date, and place of hearing; and
Sitting down with EOIR officials and getting back “online” the formerly existing “interactive scheduling system” that allowed DHS officials issuing NTAs to essentially reserve certain actually available court times and dates to place on the NTAs at time of issuance.

I don’t understand how continuing to litigate this jurisdictional issue or, as some DHS offices have bone-headedly done, issuing NTAs with obviously “fake” dates (like Christmas, weekends, or other holidays) advances either DHS’s particular enforcement needs or the need for an orderly system.

Both Judge Jeffrey Chase and I have commented previously on the problematic nature of the BIA’s decision in Matter of Bermudez-Cota, 27 I&N 441 (BIA 2018), that mindlessly “blew off” the Supreme’s reasoning, hints, and suggestions and enabled yet a new round of somewhat mindless and totally unnecessary litigation. http://immigrationcourtside.com/2018/09/18/supremes-sleeper-case-pereira-v-sessions-roiling-the-waters-in-immigration-courts-dhss-eoirs-questionable-approach-in-thumbing-their-noses-at/

http://immigrationcourtside.com/2018/09/02/hon-jeffrey-chase-on-how-the-bia-blew-off-the-supremes-matter-of-bermudez-cota-27-in-dec-441-bia-2018-is-the-bia-risking-docket-disaster-to/

Nor do I think we can assume that this is “slam dunk winner” for the Administration, even with a supposedly “more conservative” Supreme Court. Indeed, a “plain meaning” or “strict textualist” reading of the INA appears to support the respondents’ position rather than DHS’s. The BIA essentially “rewrote the statute” to reach its result in Bermudez. They certainly weren’t implementing the “plain language” of the statute which clearly and specifically defines what a “Notice to Appear” shall contain.

Sometimes (as I can attest from years of experience) the law is inconvenient for the Government bureaucracy. But, that doesn’t mean it’s not the law. And, it’s always better to “do it right the first time” rather than being forced into “redos” by the Federal Courts.

PWS

10-16-18

BIASED COURTS: EL PASO’S “HANGING JUDGES” ARE DEATH TO ASYLUM CLAIMS, EVEN THOSE THAT ARE BEING GRANTED IN MANY OTHER IMMIGRATION COURTS – The Due Process Problems In The U.S. Immigration Courts Go Much Deeper Than Jeff Sessions’s Outrageous White Nationalist Policies! — Author Justine van der Leun Presents A Meticulously Researched, Moving Report Of Unfairness That “Scotches” All Of The DOJ/EOIR “Bogus Excuses” & Exposes The Deep, Unacceptable Bias That Makes Our Immigration Courts A National Disgrace!

https://www.vqronline.org/reporting-articles/2018/10/culture-no

Here’s an excerpt from Justine van der Luen’s much longer article “A Culture of No,” published in the Fall 2018 issue of VQR (quoting me, among many others).

. . . .

“Here in the US, there is democracy, but we still have fear,” he said. “I got asylum but if they want to make a problem, they can do it.” He was terrified that the smallest misstep, no matter how apparently meaningless, how accidental or random, could signal the difference between freedom and imprisonment—and from there, between life and death.

To beat the extreme odds in El Paso, Isaac had spent fifteen months in detention and paid thousands of dollars in legal fees to an elite lawyer who then worked dozens of pro bono hours on his appeal. This feat required an enormous amount of translated and notarized evidence discretely sent overseas by family members in Syria, the emotional and financial support of his brother and his lawyer, and the wherewithal to withstand a complex, taxing, humiliating process. How many asylum seekers could or should have to endure such an ordeal in order to gain internationally recognized rights meant to protect the persecuted?

As Isaac started over in America, other asylum seekers I had been tracking were less fortunate. Jesus Rodriguez Mendoza, the Venezuelan, had been transferred to a notorious detention center in Miami, which his legal team believed was punishment for his public protests; he remained on the El Paso docket, but now was physically separated from his lawyers, his fourth parole request denied. Berta Arias, the Honduran grandmother whose relief Judge Abbott had granted and then quickly rescinded, lost her appeal and was deported without the granddaughter she had raised. The Central American man whose brother, with an identical case, had won protection in New York City, remained in the Camp. It wasn’t only those from the Americas who were out of luck. Cambodians, Cameroonians, Guineans, and Kenyans I’d followed all had their claims denied; they had since been deported or were waiting on appeals.

One young Central American woman who had been repeatedly raped had managed to win relief, but only after her lawyer, unable to bear the thought of her client being sent home to be violated yet again, paid over $2,000 from her own pocket to fly two expert witnesses into Texas to clinch the case.

“I think in El Paso, they want to see that people died,” a young Salvadoran asylum seeker told me. He was an Evangelical Christian, who preached to local kids. Members of MS-13 had shot at him with a machine gun, killing a pedestrian who happened to be standing nearby, and kidnapped and murdered his fifteen-year-old friend who had joined him in proselytizing. The young man, his mother, and his brother made their way to the US. Despite having a devoted pro bono lawyer, he lost his asylum case, as well as his appeal, on the grounds of credibility (the judge believed he was simply an economic migrant who had invented the threats); his mother also struggled to find legal relief in El Paso.

“Maybe if I died, and then my mom asked for asylum, maybe then she can get protection,” he told me calmly. “They tried to kill me, but I didn’t die, so it’s not good enough for them.”

Justine van der Leun

Justine van der Leun is the author of several books, including We Are Not Such Things (Random House, 2016), a New York Times Editors’ Choice and Spectator Book of the Year. Her work has appeared in theNew York Times, Harper’s, the Guardian, and Oprah Magazine. She is an International Women’s Media Foundation reporting fellow and a grantee of the Investigative Fund at the Nation Institute.

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

I encourage you to read the full article at the above link, which is accompanied by some great original illustrations by Alan Vest!

Justine highlights the real role of attorneys in our asylum system. Many of them are working on a pro bono or low fee basis or actually paying out of their own pockets! They persist under horrible working conditions and often rude, insensitive, and unprofessional treatment from judges and other government officials that would persuade most other professionals to take up another line of work. The cases are complicated and (unnecessarily) fact intensive, often requiring not only extensive research and legal knowledge, but also skilled use of expert testimony and sources translated from foreign languages.

In courts like El Paso, getting a fair result in an asylum case too often depends on making the record below and then taking an appeal — the latter itself a time-consuming “hit or miss” proposition depending on the BIA “panel” (it could be a single judge) or the Circuit in which the case arose (sadly, the 5th Circuit is notorious for taking a cavalier and tone-deaf attitude toward the law and fundamental fairness in immigration matters).

Indeed, conscientious, dedicated attorneys are far more interested in making the system function in a fair and efficient manner consistent with our Constitution than the DOJ politicos who run today’s broken court system.

Compare the reality with the intentionally false and totally disingenuous picture painted by our White Nationalist Attorney General Jeff Sessions. He refers to “dirty lawyers” who are “gaming” the system.

Apparently, Sessions’s view of “gaming” means providing vigorous and effective representation and forcing him and some of the anti-asylum judges working for him to comply with asylum law!

It’s also painfully clear that no unrepresented asylum applicant would have any chance whatsoever of receiving fairness and Due Process in El Paso.

But, instead of working with the private bar to facilitate representation and repair the damage to the Immigration Courts, Sessions has gone to great lengths to prevent effective representation of asylum seekers. He has arranged for the detention of asylum seekers in horrible conditions in obscure places where there are no lawyers; he has “speeded up” the system to make it more difficult for lawyers to effectively represent their clients; he has used unconstitutional intentional family separation to duress individuals with valid claims into abandoning them; he has made pejorative remarks about asylum seekers and their lawyers in front of Immigration Judges; and he has manipulated the substantive law against bona fide asylum seekers.

Yes, many, many Immigration Judges “buck the odds” to honor their oaths of office and guarantee fairness and Due Process for asylum seekers and other respondents. Justine points out how results differ dramatically in Immigration Courts where judges apply the law and treat respondents and their lawyers in a fair and impartial manner.

So, how can I be such a strong advocate for independence of a system that I know is badly flawed? Those of us who have actually worked in the system know that it can’t be fixed overnight.

But, getting the system out of the hands of Sessions and the DOJ politicos is an absolutely essential first step. With the advent of a true merit judicial hiring system, such as that recommended by Professor Andy Schoenholtz and others, and the establishment of a more diverse and representative Appellate Division that acts like an independent Federal Court to rein in those judges who are unfairly treating asylum applicants and force them to correctly and fairly apply the law, there will be a return of meaningful judicial dialogue and deliberation which leads to progress over time.

Notably, in Isaac’s case, the system actually worked! After many months of expensive, wasteful, and unnecessary detention and an incorrect decision below, the BIA summarily corrected the Immigration Judge’s clearly erroneous denial of Isaac’s asylum case. But corrective action by the BIA to bring anti-asylum judicial “outliers” under control is exactly what Sessions has disabled in his decision in Matter of A-B-. He basically encourages “worst practices” and enables biased Immigration Judges while criticizing the BIA’s modest attempts to bring legality and order to an out of control system. What an outrageous perversion of justice and Due Process by someone who constantly makes bogus claims to be “enforcing the rule of law!”

Additionally, by returning control over dockets and court administration to sitting judges, rather than non-judicial DOJ politicos and their agency subordinates, an independent Immigration Court can make progress toward reducing backlogs while promoting, rather than “demoting,” Due Process.

The current Immigration Court System is a farce that should outrage and disgust every fair-minded American! It will continue to malfunction and deny Due Process until we have an independent Immigration Court where all judges are required to respect the Constitution and the individual rights of those coming before them.

Join the “New Due Process Army” and force the Immigration Courts and the Article IIIs to live up to their unfilled promise of “guaranteeing fairness and Due Process for all!”

PWS

10-09-18

RAFAEL BERNAL IN THE HILL: Federal Courts Are Homing In On The Racism, Dishonesty, & Lawlessness Driving Many Of Trump, Nielsen, & Sessions’s Cruelest & Dumbest Immigration Policies!

https://thehill.com/latino/410012-trump-immigration-measures-struggle-in-the-courts

Bernal writes:

A federal judge’s ruling blocking a Trump administration order to end immigration benefits for nearly 300,000 foreign nationals is the latest in a series of judicial setbacks for the Trump administration’s immigration policies.

Federal District Judge Edward Chen late Wednesday blocked the Department of Homeland Security’s (DHS) order to end Temporary Protected Status (TPS) that allows citizens of Sudan, El Salvador, Haiti and Nicaragua to live and work in the United States, raising hopes for activists who have fought to make the program permanent.

The preliminary injunction granted by Chen, an appointee of President Obama, follows a trend of court reversals that have slowed the administration’s proposed overhaul of American immigration laws.

The administration’s first judicial setbacks on immigration came weeks into Trump’s presidency, as a New York court stopped in January of 2017 the application of the first version of a travel ban that blocked immigrants and visitors from seven majority-Muslim countries.

After a series of court battles, a third version of the travel ban — which includes non-Muslim countries North Korea and Venezuela — was eventually upheld by the Supreme Court in June of this year.

Trump’s termination of the Deferred Action for Childhood Arrival (DACA) program is still up in the air.

Because of court action, DHS is still receiving DACA renewal applications, which under Trump’s original order should have ended in October of 2017.

Both the travel ban and termination of DACA tied into Trump’s campaign promises on immigration, but TPS is a relatively obscure program that had been more or less summarily renewed by both Republican and Democratic administrations.

Under TPS, nationals of countries that undergo natural or man-made disasters are allowed to live and work in the United States until their home countries recover.

Chen’s decision only blocks the DHS orders while the lawsuit is in place, but he hinted in his decision that he’s unlikely to change his mind in the final ruling.

The decision came as a surprise, as TPS statute gives a wide berth to the secretary of Homeland Security to determine who receives its benefits.

DHS declined to comment on the case, but Department of Justice spokesman Devin O’Malley panned Chan’s decision, saying it “usurps the role of the executive branch in our constitutional order.”

Emi Maclean, an attorney with the National Day Laborer Organizing Network (NDLON), called it “an extraordinary decision.”

“This is the first time in the history of the TPS statute, a statute from 1990, that there has been a court order halt for any TPS determination,” said Maclean.

“It’s hugely important in what it says about the Trump administration making policies in the arena of immigration, and it’s obviously important for hundreds of thousands of people and their families and communities,” she added.

In his decision, Chen referred to the “animus” behind the administration’s TPS strategy, echoing district and appeals courts decisions on the travel ban, which used Trump’s campaign rhetoric as evidence of discriminatory intent.

Chan said he found “evidence that this may have been done in order to implement and justify a pre-ordained result desired by the White House.”

“Plaintiffs have also raised serious questions whether the actions taken by the Acting Secretary or Secretary was influenced by the White House and based on animus against non-white, non-European immigrants in violation of Equal Protection guaranteed by the Constitution,” he added.

Justice took a different view.

“The Justice Department completely rejects the notion that the White House or the Department of Homeland Security did anything improper. We will continue to fight for the integrity of our immigration laws and our national security,” said O’Malley.

Although the decision is only a temporary setback for the administration, TPS activists — who want to turn their TPS benefits into permanent residency permits — say they’re encouraged to raise the political profile of the program and its beneficiaries.

“While this decision helps us to at least breathe and be comfortable that our friends with TPS are not going to lose immigration status, it also motivates us to continue organizing and hoping that Congress will understand the importance of this,” Jose Palma, the Massachusetts coordinator for the National TPS Alliance, said in a call with reporters.

Immigration causes have been front and center in U.S. politics during the Trump administration.

But TPS has received relatively little attention.

“We were doing some lobbying and some Congresspeople didn’t know what TPS was,” said Palma. “We were asking for support for TPS and they were asking, ‘What is TPS? We don’t know,’”

And while TPS recipients had been included in previous attempts at comprehensive immigration reform, most bills that got traction in 2018 focused solely on Dreamers.

The exception was a bipartisan bill proposed by Sens. Lindsey Graham (R-S.C.) and Dick Durbin (D-Ill.), which would have pulled immigrant visas from the diversity visa program to grant permanent residency to certain TPS holders, including some from Haiti.

That bill was shot down in January by Trump at a White House meeting with Graham and Durbin, where he allegedly called Haiti and some African countries “shithole countries.”

Still, TPS advocates say they’ve been able to raise awareness for the program since Haiti’s designation was terminated in November.

Palma pointed to seven legislative proposals in the current Congress that would either extend TPS benefits or give current beneficiaries permanent residency.

Another proposal from Rep. Mo Brooks (R-Ala.) would transfer the responsibility of designation from DHS to Congress and restrict access of undocumented immigrants to TPS.

Palma added that the ultimate goal of many TPS recipients, particularly those who have been in the United States for long periods of time, is to achieve permanent residency.

“If we’re going to take the future of this campaign based on what we have achieved from there to now, I feel confident that it’s not going to be easy but it’s something we can definitely achieve,” he said.

Chen’s order covers only El Salvador, Haiti, Nicaragua and Sudan, which account for a majority of TPS holders.

The most numerically significant TPS countries not included in the lawsuit are Honduras, which has about 57,000 citizens in the program, and Nepal, which has about 9,000. They are not included because their terminations had not been announced at the time the lawsuit was filed.

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

What is missing here is decisive, bipartisan Congressional action to resolve some of these issues in a way that the Trump White Nationalists can’t easily undo. Barring that, various aspects of the White Nationalist anti-immigrant agenda will continue to “bop along” through the lower Federal Courts: sometimes winning, but often losing.

While the GOP right is obviously feeling a sense of invincibility with the likely advent of Justice Kavanaugh, Trump can’t necessarily count on the Supremes to bail him out by intervening in controversial immigration cases. It would be better for the Court, and particularly for Chief Justice Roberts, presumptive Justice Kavanaugh, and the other “GOP Justices” to take on some less controversial issues — ones where they might actually achieve unanimity or near-unanimity first, and save the inevitable, partisan “5-4s” for a later date. That might mean that he fate of many of Trump’s most controversial immigration schemes could remain in the hands of the lower Federal Courts until sometime after October 2019.

Of course, that isn’t necessarily good news for those opposing the Trump agenda: Trump is quickly turning the lower Federal Courts into bastions of right-wing doctrinaire jurisprudence, just as the Heritage Foundation, the Federalist Society, and other right-leaning legal groups have mapped it out.

PWS

10-05-18

TRUMP SCOFFLAWS BLOCKED AGAIN: US Judge Temporarily Enjoins End Of TPS Programs!

https://www.cnn.com/2018/10/03/politics/tps-preliminary-injunction/index.html

Catherine Shoichet reports for CNN:

(CNN)Hundreds of thousands of immigrants who feared they could soon be facing deportation got a reprieve Wednesday, when a federal judge in California temporarily blocked one of the Trump administration’s major immigration moves.

US District Judge Edward Chen granted a preliminary injunction stopping the government from terminating temporary protected status, or TPS, for immigrants from Sudan, El Salvador, Haiti and Nicaragua.

Chen ruled that the government must maintain TPS, and employment authorizations for TPS beneficiaries from those countries, while a lawsuit challenging the government’s decision to eliminate their protections continues.

TPS protects migrants in the United States from countries that have been hit by dire conditions, such as epidemics, war or natural disaster. Previous administrations had opted to extend the protections for most of the countries involved every few years when they came up for review, but the Trump administration has moved toward ending protections for the majority of immigrants under the program, arguing that the initial conditions that necessitated them are no longer present.

The judge’s decision comes a week after a hearing in the case. It goes into effect immediately and is particularly welcome news for TPS recipients from Sudan, who were less than a month away from losing their protections.

“I’m still trying to wrap my mind around it,” said Salma Ahmed of Chicago.

The 21-year-old, who was born in Sudan and lived in the United States since she was 2, attended last week’s court hearing in San Francisco and was heartened to hear the judge recognize the urgency of the situation she and many others face.

“My hopes just got higher and higher,” she told CNN Wednesday night. “I wasn’t expecting it right now, but this is good.”

Developing story – more to come

CNN’s Vanessa Yurkevich contributed to this report.

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

Information obtained under the FOIA had previously disclosed that nobody recommended or wanted the termination of these grants of TPS except a hard core of White Nationalist restrictionists in the Trump Administration. As has been reported elsewhere, they suppressed and mischaracterized evidence — all of which supported a continuation of TPS — to terminate these important programs to achieve a predetermined racially-driven, restrictionist agenda.

The Trump Administration is continually occupying the Federal Courts with unnecessary litigation that a responsible Administration would avoid, for the good of the country. As you might remember, I predicted early on that the Trump Administration’s often lawless and otherwise largely imprudent litigation positions would mean “full employment for lawyers” — both inside and outside Government — if nothing else.

PWS

10-03-18

“A new and dark era as Immigration Judges,” Says Judge A. Ashley Tabaddor, NAIJ President!

Dear Colleagues,

October 1^st marked a new and dark era as Immigration Judges. The Agency is now subjecting us to quotas and deadlines as part of our individual performance evaluations, something that is inherently in conflict with our oath of office(which is the very reason why Congress explicitly excluded ANY individual performance measures for Administrative Law Judges). NAIJ has largely concluded the bargaining with the Agency on “impact and implementation” of these quotas and deadlines and continues to express (to the Agency and the public) our strenuous disagreement with the concept of quotas and deadlines as a matter of principle. However, to the extent that we remain a part of the Department of Justice and are treated as DOJ attorneys (in spite of being judges in our duties and responsibilities), our legal recourse of action is confined to labor laws, which are designed for traditional labor/management relationships and do not deal with issues of judicial independence. Thus, unless and until the Agency takes an adverse action against a particular judge (or Congress steps in with the durable solution of removing the Immigration Court from the Justice Department), we cannot file any grievance or complaints (including the suggestion of several of our judges to file for intentional infliction of emotional distress, which appears to be prohibited by the Federal Torts Claims Act). Thus, we have spent many hours in the past months in bargaining and informal discussions to minimize the impact of this ill-conceived program. We have been able to help craft more favorable interpretations of what will satisfy the metrics, improved the content and design of the Dashboard to make it more user friendly, and been able to point out shortcomings and flaws which we still seek to improve or eliminate. The MOU you will see shortly has been negotiated as an adjunct to Article 22 of the Collective Bargaining Agreement which provides protections for judges in the performance evaluation process. We entered into the MOU in the hopes of improving the position of judges by clarifying that the quotas and deadlines do not stand alone, but must be read in conjunction with specific consideration of each judge’s docket and consistent with Article 22.3.h. We expect the MOU will help provide judges with a measure of protection and help reconcile the quotas and deadlines with the individual demands of our individual dockets and courts. Additionally, the MOU provides for a continuing forum for the NAIJ to raise concerns with the Agency about the operation of the Dashboard or application of performance measures, both on a general level and on behalf of any individual judge. So your continued feedback to NAIJ is a critical part of this process.

Meanwhile I cannot emphasize enough that your oath of office should be your guiding principle throughout these challenging times. As I have said many times before, so long as you put in an honest day’s work and stay true to your oath of office, we will stand by you 100% of the time. “Due process” is the beginning and the end of the conversation. Period. Full Stop.

Thank you for those of you who have been sharing with us your experiences with the Dashboard and your ACIJs regarding the CBA Article 22.3.h. Please keep them coming as we want to make sure that any problematic patterns or practices of the Agency are noted and resolved early.

We also understand that many of you are seeking guidance on how to best navigate this new system. We do have some suggestions for you which we plan to share in our upcoming Q&A sessions on the implementation of the Quotas and Deadlines. I have included a couple of attachments that may also be of help to you in identifying the data entry error or track the 22.3.h factors that your ACIJs should be considering. So please mark your calendars, and plan on joining us for at least one of the sessions.

Wednesday, October 10^th 8:00 a.m. PT, 9:00 a.m. MT, 10:00 a.m. CT, 11:00 a.m. ET

Wednesday, October 10^th 9:00 a.m. PT, 10:00 a.m. MT, 11:00 a.m. CT, 12:00 p.m. ET

Wednesday, October 10^th, 10:00 a.m. PT, 11:00 a.m. MT, noon CT, 1:00 p.m. ET

Thursday, October 11^th, 11:00 a.m. PT, noon MT, 1:00 p.m. CT, 2:00 p.m. ET

Thursday, October 11^th, noon PT, 1:00 p.m. MT, 2:00 p.m. CT, 3:00 p.m. ET

The call-in information for each of the scheduled sessions is as follows: (605) 475-4001 & passcode: 765103#

If you have any questions in advance that you would like for us to address during a meeting, feel free to forward it to my attention.

Thank you for all of your hard work.

Ashley

The Honorable A. Ashley Tabaddor, President

National Association of Immigration Judges

606 S. Olive St., 15^th floor

www.naij-usa.org

213-534-4491 (direct office line)

BEST E-MAIL: ashleytabaddor@gmail.com

DISCLAIMER: The author is the President of the National Association of Immigration Judges. The views expressed here do not necessarily represent the official position of the United States Department of Justice, the Attorney General, or the Executive Office for Immigration Review. The views represent the author’s personal opinions, which were formed after extensive consultation with the membership of NAIJ.

P.S. Please let your fellow NAIJ members know about these call-in session. Should you hear of any NAIJ member who may not have received this email, please let me knowasap and feel free to forward to them as well. Thank you.

From: Ortiz-Ang, Susana (EOIR)
Sent: Monday, October 01, 2018 3:07 PM
To: All of Judges (EOIR) <All_of_Judges@EOIR.USDOJ.GOV>
Cc: Keller, Mary Beth (EOIR) <MaryBeth.Keller@EOIR.USDOJ.GOV>; Wilson, Donna L. (EOIR) <Donna.Wilson@EOIR.USDOJ.GOV>
Subject: New Performance Measures (On Behalf of Mary Beth Keller, Chief Immigration Judge)

Judges,

Please see the below and attached.

Today, the new performance measures, as incorporated in Element 3 of your Performance Work Plan, become effective. The new Element 3 is attached to this e-mail and will be appended to each of your PWPs. The implementation of these new performance measures is part of a larger effort to make changes across the Agency to better enable us to meet our mission, to fairly and expeditiously adjudicate immigration cases. You are and always have been a dedicated and professional corps, with the competence and integrity to render decisions that are both “timely and impartial,” as required by the regulations. Historically, IJs have been held accountable in performance Element 3 to make timely rulings and decisions as well as to manage calendars efficiently. These measures simply define these goals more specifically in the present day.

I wanted to emphasize a few important points that you also may have heard from your ACIJ during your court meetings:

-Decisions should not be made on individual matters based solely on the performance measures. We remain committed to ensuring due process in each case.

– I hope that each of you has taken an opportunity to review the IJ Performance Data Dashboard (“Dashboard”), which is linked to the OCIJ intranet page under “Quick Links.” Please keep in mind that the Dashboard is not your performance rating. It displays data from CASE as it relates to your progress towards meeting the established goals and benchmarks in Element 3 of the PWP. The new measures apply to your performance for the second year of this cycle, from Oct. 1, 2018 to September 30, 2019. Your overall performance rating will be determined at the end of the two-year rating cycle (ending September 30, 2019), considering your performance in all three elements of the PWP.

– The Dashboard is one day behind. Therefore today it shows data as of September 30, 2018. Tomorrow, it will “zero out,” and show data as of October 1. As of tomorrow, only actions you take from October 1 forward should appear on the Dashboard.

– In addition to the Definitions document that I circulated on September 10 (and attached again here), with the input of NAIJ, we have developed a Frequently Asked Questions (“FAQ”) document, which I have attached here as well. We continue to tweak the data captured in the Dashboard to ensure that it accurately reflects the Definitions document and the FAQ document. We encourage you to bring data issues to the attention of your ACIJ.

– Please carefully review not only the new PWP Element 3, but also Article 22 of the Collective Bargaining Agreement between the Agency and NAIJ. In particular, in Article 22.3.h., the Agency has agreed to take into account a number of factors that may affect an IJ’s ability to meet the performance standards, including factors not in control of the IJ.

– We have concluded our discussions with NAIJ, and in the near future, we will publish on the intranet the Memorandum of Understanding that both parties agreed to at the conclusion of bargaining. Please review this document carefully when it becomes available.

– We welcome your input throughout the year. We want to hear about the circumstances you feel are hindering your efforts to reach the goals and benchmarks. We also want to hear your suggestions for making the courts and our processes more efficient, and more generally how the courts can better meet our mission.

– If there is something systemic or frequently recurring that you believe is interfering with your ability to meet the measures, please raise your concern with your ACIJ.

– Please be patient, especially during the rollout and at the end of the first quarter, when numbers are likely to be low due to holidays and leave.

Thank you.

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

So, Chief Immigration Judge Marybeth Keller says decisions shouldn’t be made based “solely on the performance measures.” In other words, performance measures can be a basis for decisions so long as the IJ doesn’t identify them as the “sole” basis.

There would be no need for “performance measures” at all unless those imposing them intended that they influence or control results. What kind of “performance measure” isn’t geared at influencing or shaping the “end product” of the “performance.” Or, perhaps the theory of DOJ/EOIR management is that IJs as a group are a bunch of lazy work shirkers who won’t put in a full day’s effort unless watched and threatened at all times with sophomoric “big brother type performance dashboards.”

Maybe that is the purpose of the “IJ Performance Data Dashboard.” This “Dashboard” is a remarkable achievement for an agency that still hasn’t been able to roll out a finalized version of an e-filing system. Clearly it’s a matter of “priorities;” fair adjudication and service to the public obviously aren’t among them!

The purpose of the Dashboard is appparently to insure that the stress levels build and that “judges” remain focused on achieving their “performance goals” (and hence keeping their jobs) rather than on the merits or justice in a particular case. Indeed, in a “real” court system judges would be encouraged to focus solely on providing fair and impartial adjudications in accordance with Due Process and the technology would be devoted exclusively to that end. “Production data,” while perhaps interesting from an intellectual or self-evaluation standpoint, actually has little or nothing to do with justice in a particular case.

Everyone who loses a case in this amazingly depressing “kangaroo court” system should file a petition for review citing the inherent Due Process flaw in having a “judge” who can’t possibly function as an “impartial” adjudicator as required both by the Constitution and by DOJ regulations. Maybe at some point the Article IIIs will fully understand the judicial farce in which they are complicit and act accordingly.

PWS

10-03-18

ANGELO PAPARELLI: The Real “Con Job” Is An Immigration “Court” Lacking Independent Jurists & Run By A Closed Minded Anti-Immigrant Partisan Politico!

https://www.nationofimmigrators.com/immigration-courts/the-long-lived-con-job-structural-injustice-in-the-immigration-courts/

Last week, President Trump held an 81-minute press conference. He traversed wide-ranging territory, including his notions of procedural due process. Discussing the importance of fundamental fairness when trying to distinguish facts from falsehoods, he said:PRES. TRUMP:

Somebody could come and say 30 years ago, 25 years ago, 10 years ago, 5 years ago, he did a horrible thing to me. He did this, he did that, he did that and, honestly, it’s a very dangerous period in our country. And it’s being perpetuated by some very evil people — some of them are Democrats, I must say — because some of them know that this is just a game that they’re playing. It’s a con game. It’s at the highest level. We’re talking about the United States Supreme Court. . . .

I’ve used much worse language in my life than “con job.” That’s like probably the nicest phrase I’ve ever used. I mean con job — it is. It’s a con job. You know confidence. It’s a confidence job, but they — it’s a con job by the Democrats. They know it.

Although clearly referring to recent charges of decades-old sexual wrongdoing against Supreme Court nominee, Judge Brett Kavanaugh, the president could have been discussing credibility determinations that arise every business day in our nation’s administrative tribunals that are euphemistically called immigration “courts.” The hearings and proceedings in the immigration courts raise one of the highest of stakes, deportation (or as it’s technically termed, removal) from the United States, a process which the Supreme Court in Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948), described as “a drastic measure and at times the equivalent of banishment or exile,” and in Ng Fung Ho v. White, 259 U.S. 276, 284 (1922), as a theft of liberty that “may result … in loss of both property and life, or of all that makes life worth living.”

Yet immigration hearings are all too often a con job — not necessarily for any lack of effort at fairness and truth-ferreting by the actual participants, the immigration judges, and the attorneys representing the federal government and the hapless noncitizen known as the “respondent” who must appear in person and respond to one or more allegations that s/he is in the U.S. unlawfully and thus deportable. No, the unfairness is baked into the immigration court system; it’s a feature, not a bug. It was willfully designed by a long-forgotten Congress to be structurally unfair, and intentionally to omit the essential requirement of procedural due process. That is, that the fact-finder — the judge — must be independent and impartial, leaning neither in favor nor against one side or the other. In immigration courts, however, the immigration judge and the “trial attorney,” or counsel for the government, are both Executive-Branch employees. Immigration judges are Department of Justice lawyers appointed by the U.S. Attorney General. Trial attorneys – who often later become immigration judges – are employed by the Department of Homeland Security and are part of U.S. Customs and Immigration Enforcement.

The Attorney General has the power to fire and remove immigration judges, or, on his unexplained whimsy, to punitively relocate them to hear cases at remote detention facilities in the U.S. hinterlands. As seen in recent months by the incumbent Attorney General Jeff Sessions, the AG has approved the imposition of work load production quotas on immigration judges, which inevitably will lead to even more abbreviated hearings, rushed oral and written decisions by immigration judges, and – all too often – reversible errors that must be rectified by the Board of Immigration Appeals and the federal appellate courts, including the Supreme Court.

The present AG has gone even further in advancing his activist agenda, e.g., on August 16 in Matter of L-A-B-R- et al., 27 I&N Dec. 405 (A.G. 2018), by limiting the authority of immigration judges to find good cause to grant continuances, and on June 11, in Matter of A- B,  27 I&N Dec. 316 (A.G. 2018), by taking away the power of immigration judges to find female victims of domestic violence abroad whom the foreign police will not or cannot protect as a social group deserving of protection under the asylum laws of the United States.

Indeed, the con job is even more atrocious because the power of the Attorney General in the Immigration and Nationality Act (INA) seems to have been inspired by no less a legal authority than Humpty Dumpty:

‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’

Alice in Wonderland, by Lewis Carroll (Ch. 6)(italics in the original).

The “master” — according to INA § 103(a)(1)  — the arbiter of the meaning of words carrying immigration-related legal consequences, at least for now, is the incumbent, AG Jeff Sessions:

The Attorney General shall be charged with the administration and enforcement of this Act and all other laws relating to the immigration and naturalization of aliens, except insofar as this Act or such laws relate to the powers, functions, and duties conferred upon the President, the Secretary of State, the officers of the Department of State, or diplomatic or consular officers: Provided, however, That determination and ruling by the Attorney General with respect to all questions of law shall be controlling (emphasis added).

Many respected commissions, organizations and individuals have long assailed the systemic deficiencies that make our nation’s administrative system for procedural fairness in deportation proceedings unfair and ineffective (including, Kip T. Bollins, The President of the Federal Bar Association which has proposed model legislation, the Board of Governors of the American Immigration Lawyers Association, the Alliance of Business Immigration Lawyers, the National Immigrant Justice Center, and Ashley Tabaddor, President of the National Association of Immigration Judges, in recent congressional testimony) – a broken and unjust process that by now can only be seen as a con job.

In 1981, Rev. Theodore M. Hesburgh, President of the University of Notre Dame, chaired the Select Commission on U.S. Immigration and Refugee Policy, which issued a 467-page report. The report contained a recommendation (23 VII.C.I.) on the re-positioning of the immigration court from the Justice Department into an independent judicial tribunal:  “The Select Commission recommends that existing law be amended to create an immigration court under Article I of the U.S. Constitution.” The Commission explained its reasoning in Article 23 VII.C.I., page 248, entitled “Structure for Immigration Hearings and Appeals”:

The Select Commission is convinced of the need for a more equitable and efficient method of processing exclusion and deportation cases. Some Commissioners believe that the answer lies in the creation of a U.S. Immigration Board, with statutory independence from INS [Immigration and Naturalization Service] and the Attorney General, subject to the requirements of the Administrative Procedures Act. Such a mechanism, the Commission members argue, would also be an ideal body for adjudicating noncriminal actions taken against employers under an employer sanctions system. A majority of Commissioners, however, is of the view that such a solution would still suffer from many of the current administrative inadequacies. The institution of an Immigration Court under Article I of the U.S. Constitution, they believe, would result in more efficient and uniform processing of cases. . . .

The Immigration Court recommended by the Commission will include a trial division to hear and decide exclusion and deportation cases and an appellate division to correct hearing errors and permit definitive, nationally binding resolutions of exclusion and deportation cases.* The new court also offers the potential for introducing judicial uniformity into the review of denials of applications and petitions — matters that now occupy the attention of district courts around the country. The elimination of potential disparate rulings by courts of appeals should discourage further litigation. The Commission majority is also of the view that an Article I Immigration Court is more likely to attract outstanding adjudicators. Improvements in the caliber of personnel will enhance the quality of decisions and generally: eliminate any need for further review. Some Commissioners believe that if the Article I Court cannot be instituted for several years, interim measures should be taken to improve the competency of the existing INS.

*The remedy of Supreme Court review by petition for certiorari would remain available for the rare immigration case of great national importance; review of immigration decisions, by U.S. Courts of Appeals would be eliminated.

Congress should of course consider and debate the merits of the Commission’s sub-recommendations. (I would not eliminate the right of petition to the federal appeals courts for the very reason that many immigration rulings are of great national importance and the U.S. Supreme Court’s docket cannot accommodate them.) Still, the fundamental proposition urged by the Select Commission – to remove the immigration courts from the oversight of the Attorney General, and instead structure it as an Article I court – is supported by a multitude of contemporary stakeholders.

One leading voice is Hilarie Bass, President of the American Bar Association (ABA), who offered in her April 18, 2018 Statement submitted to the Senate Judiciary Committee’s Subcommittee on Border Security and Immigration Committee, “Strengthening And Reforming America’s Immigration Court System,” the ABA’s compelling reasons:

[The ABA] determined that the Article I model presented the best option for meeting the goals and needs of the system. The Article I model is likely to be viewed as more independent than an agency because it would be a true judicial body; is likely as such to engender the greatest level of confidence in its results; can use its greater prestige to attract the best candidates for judgeships; and offers the best balance between independence and accountability to the political branches of the federal government. Given these advantages, in our view, the Article I court model is the preferred option.

. . . Removing the adjudication system from the Department of Justice, whose primary function is a law enforcement agency, is vital to assuaging concerns about fairness and the perception of fairness. As a wholly judicial body, an Article I court is likely to engender the greatest level of confidence in the results of adjudication.

An Article I court also should attract highly-qualified judicial candidates and help to further professionalize the immigration judiciary. History has shown the potential for the politicization of the hiring process and an inherent bias toward the hiring of current or former government employees. Removing the hiring function from the Department of Justice also may increase the diversity of the candidate pool. Providing for a set term of sufficient length, along with protections against removal without cause, will similarly protect decisional independence and
make Article I judgeships more attractive. By attracting and selecting the highest quality lawyers as judges, an Article I court is more likely to produce well-reasoned decisions. Such decisions, as well as the handling of the proceedings in a professional manner, should improve the perception of the fairness and accuracy of the result. Perceived fairness, in turn, should lead to greater acceptance of the decision without the need to appeal to a higher tribunal. When appeals are taken, more articulate decisions should enable the reviewing body at each level to be more efficient in its review and decision-making and should result in fewer remands requesting additional explanations or fact-finding.

Unfortunately, Attorney General Sessions seems mired in a false equivalency, asserting that anyone opposing his views on immigration must ipso facto be a proponent of unregulated open borders. He made this clear recently in his remarks welcoming 44 new immigration judges, characterizing immigration lawyers not as officers of the court but as single-objective advocates (essentially as mouthpieces) who will do or say anything to win in immigration court:

Good lawyers, using all of their talents and skill, work every day – like water seeping through an earthen dam – to get around the plain words of the INA to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the [INA]. That is our most serious duty.

He said other disturbing things as well in addressing the new immigration judges:

You have an obligation to decide cases efficiently and to keep our federal laws functioning effectively, fairly, and consistently.

And, as the statute states, Immigration Judges conduct designated proceedings “subject to such supervision and shall perform such duties as the Attorney General shall prescribe”.

This last provision gives me responsibility to ensure that our immigration system operates in an effective and efficient manner consistent with law enacted by Congress. Many in this country take a different view. They object to any enforcement that works. They evidence an open borders philosophy. . . .

As you take on this critically important role, I hope that you will be imaginative and inventive in order to manage a high-volume caseload. I do not apologize for expecting you to perform, at a high level, efficiently and effectively.

Your role requires great legal skill. Many of the cases present complex legal issues, but like anyone acting as a judge, you must manage your docket and support staff well.Cases must be moved to conclusion.

And as members of the Executive Branch, it is our duty to “take care that the laws be faithfully executed.” When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation. Your job is to apply the law—even in tough cases.

As we work to restore rule of law in our immigration system, we will send a clear message to the world that the lawless practices of the past are over. The world will know what our rules are, and great numbers will no longer undertake this dangerous journey.

To be sure, the world — indeed, the American people — should know what our rules are. They should also know Lord that their ability to make the arduous journey to settle in America pursuing their opportunity under the facts in their case and our immigration laws to live out the American Dream will be decided by an impartial jurist in an independent tribunal. This is not our fathers’ immigration system. It cannot be learned by a three-year-old. Its laws should not be declared by any Attorney General. Congress must end this con job.

PWS

10-02-18

THE GIBSON REPORT — 10-01-18 — Compiled By Elizabeth Gibson, Esq., NY Legal Assistance Project

TOP UPDATES

USCIS to Begin Implementing New Policy Memorandum on Notices to Appear

USCIS: USCIS will take an incremental approach to implement this memo… The June 2018 NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. Existing guidance for these case types will remain in effect.

Proposed I-912 Fee Waiver Form Revision

USCIS: USCIS is proposing to revise our Form I-912, Request for Fee Waiver, to remove the receipt of means-tested benefits from the eligibility criteria… Eligibility for these benefits can vary from state to state, depending on the state’s income level guidelines. As a result, individuals who would not otherwise qualify under the poverty-guideline threshold and financial hardship criteria have been granted fee waivers by USCIS.

EOIR Announces Largest Ever Immigration Judge Investiture

DOJ: The Executive Office for Immigration Review (EOIR) announces the investiture of 46 immigration judges, including two assistant chief immigration judges, marking for the second month in a row the largest class in the agency’s history. IJ bios here.

Samuel M. Factor, Immigration Judge, New York City Immigration Court

Brian T. Palmer, Immigration Judge, New York Immigration Court

Oshea Denise Spencer, Immigration Judge, New York City Immigration Court

AILA, CLINIC, and NILC Provides Update on FAM Changes to Public Charge

AILA, CLINIC, and NILC provided a summary of issues discussed during a 9/12/18 telephonic call with representatives from DOS concerning FAM changes and consulates’ public charge determinations and associated Form I-601A revocations. AILA Doc. No. 18092632

Which Immigration Cases Will the Supreme Court Hear This Term?

AIC: Although only one immigration case is currently scheduled to be heard, challenges to President Trump’s immigration policies will likely end up in front of the Court by the end of the term.

Policy Brief: S. 3478 Would Codify Cruelty Against Arriving Children

In this policy brief, AILA expresses its opposition to S. 3478, which would eviscerate long-standing legal standards and protections for immigrant children and families seeking asylum who arrive at the U.S. border. AILA Doc. No. 18092500

Tracking Over 2 Million ICE Arrests: A First Look

TRAC: Historically, the vast majority of ICE arrests occur when the agency assumes custody of immigrants from another law enforcement agency. Since Trump assumed office, roughly three out of four ICE arrests were what ICE refers to as “custodial” arrests…The remaining one-quarter (25%) were individuals arrested at their home, place of work, or elsewhere in the wider community including at courthouses or at DHS offices when the immigrant had appeared for an appointment.

New Immigration Policy Gives USCIS Adjudicators Full Discretion to Deny Cases Without Issuing RFE

AILA member Taymoor Pilhevar discusses USCIS’s policy memorandum issued on 7/13/18 on the rescission of the standing policy that RFEs and NOIDs must be issued before a denial is issued. AILA Doc. No. 18092730

Dozens of Doctors Who Screen Immigrants Have Record of ‘Egregious Infractions,’ Report Says

NYT: The report looked at more than 5,500 doctors across the country used by United States Citizenship and Immigration Services as of June 2017 to examine those seeking green cards. More than 130 had some background of wrongdoing, including one who sexually exploited female patients and another who tried to have a dissatisfied patient killed, the report said.

In the Face of a Shutdown, Trump and Congress Delay Border Wall Fight Until December

AIC: This continuing resolution sets up a potential major battle over immigration enforcement, border wall funding, and other immigration issues—which could all come to a head in the face of a December government shutdown.

An Illinois Priest Living Legally in the U.S. for 14 years Is Being Deported – Over a Single Vote He Shouldn’t Have Cast

WaPo: Boase was placed in removal proceedings last month, roughly a year after he admitted during his citizenship interview with U.S. Citizenship and Immigration Services that, yes, he once registered to vote, and yes, he once cast a vote.

LITIGATION/CASELAW/RULES/MEMOS

Class Action Lawsuit Filed Challenging Termination of TPS for El Salvador, Haiti, Nicaragua, and Sudan

The plaintiffs filed a class action suit and motion for preliminary injunction to force the government to preserve TPS for more than 200,000 individuals, stating that TPS terminations was unconstitutional and violated the Administrative Procedure Act. (Ramos et al. v. Nielsen et al, 3/12/18) AILA Doc. No. 18092833

CA9 Holds CBP Officer Is Not Entitled to Qualified Immunity and Holds BivensCan Be Extended

The court held that, taking the facts as alleged in the complaint, CBP officer is not entitled to qualified immunity due to violation of clearly established unreasonable seizure, and can be subject to a Bivens claim by mother of the deceased. (Rodriguez v. Swartz, 8/7/18) AILA Doc. No. 18092534

CA9 Holds BIA Erred in Denying Cancellation Based on Incorrect Application of Categorical and Modified Categorical Approaches for CIMT

The court held BIA erred in concluding OR witness tampering statute was categorically CIMT and that statute was not divisible; under modified categorical approach, court found statute was divisible and applicable subsection also not categorically CIMT. (Vasquez-Valle v. Sessions, 8/10/18) AILA Doc. No. 18092536

C.D. Cal. Grant Injunctive and Declaratory Relief Pursuant to FloresSettlement

Plaintiffs seek class certification to have ORR policies/practices be declared unlawful and to enjoin due process violations in evaluating fitness of custodians, placement in secure facilities, administering psychotropic drugs, and lack of access to counsel. (Lucas R. v. Azar, 6/29/18) AILA Doc. No. 18092670

C.D. Cal. Grants Class Certification to Certain Cambodian Nationals Affected by New ICE Re-Detention Policy

The court granted class certification to putative class of 1900 individuals subject to an October 2017 ICE policy of re-detention without notice or individual analysis to determine necessity of re-detention; class seeks injunctive and declaratory relief. (Chhoeun v. Marin, 8/14/18) AILA Doc. No. 18092537

C.D. Cal. Receives APA and Mandamus Complaint of Honorably Discharged Noncitizen Vet Who Claims Unreasonable Delay in Naturalization Application

Complaint alleges unreasonable delay of naturalization application that was part of DOD’s MANVI program; seeks mandamus compelling government action. Lack of adjudication within normal processing times and under policies to expedite military applications violate APA. (Sea v. DHS, 7/19/18) AILA Doc. No. 18092701

E.D. Wash. Grants Motion to Dismiss, Holds IJ Deportation Decision Void for Lack of Proper Notice Due to Deficient NTA

The court found that despite a timely delivery to hearing due to being in custody, defendant was deprived of proper notice because NTA failed to state time and date of hearing; IJ, thus, had no jurisdiction to enter deportation order. (U.S. v. Virgen-Ponce, 7/26/18) AILA Doc. No. 18092731

W.D. Wash. Grants Summary Judgment for Noncitizen’s APA Claim, Reinstates LPR Status Until Removal Proceedings Are Complete

The court held that revocation of green card/LPR status as void ab initio outside of INA’s five-year rescission period without a hearing was a due process violation and an agency action “not in accordance with law”; ordered status reinstated until hearing complete. (Lai v. U.S., 7/17/18) AILA Doc. No. 18092702

N.J. Grants TRO to Stay Removal and Habeas to Release Petitioner from Detention While Pursuing Provisional Unlawful Presence Waiver

The court held that detention and attempted deportation of petitioner while he pursued a provisional unlawful presence waiver violated the APA and Fifth Amendment. Formal opinion forthcoming. (Martinez v. Nielsen, 8/3/18) AILA Doc. No. 18092601

CA DC Reverses and Remands, Vacating USCIS Determination that USC Lacked “Intention” to Relinquish U.S. Nationality

The court held USCIS did not properly interpret “intention” in 8 USC §1481(a), stating that a USC’s potential inability to leave and be admitted elsewhere did not mean USC lacked “intention” to relinquish nationality under the domestic-renunciation provision. (Kaufman v. Nielsen, 7/20/18) AILA Doc. No. 18092602

DHS OIG Finds USCIS’s Medical Admissibility Screening Process Needs Improvement

DHS OIG found that USCIS has inadequate controls for verifying that foreign nationals seeking LPR status met health-related standards for admissibility. DHS OIG made recommendations that, when implemented, will improve USCIS selection and oversight of physicians and its review of medical forms. AILA Doc. No. 18092573

USCIS Issues Policy Alert on Special Naturalization Provisions for Children

USCIS issued a policy alert updating the USCIS Policy Manual with guidance to clarify certain special naturalization provisions for children. This guidance is effective 9/26/18, and is controlling and supersedes any prior guidance. Comments are due by 10/9/18. AILA Doc. No. 18092605

Congress Urges DHS Inspector General to Investigate Allegations of Coercion and Abuse Against Separated Immigrant Parents

On 9/26/18, members of the House and Senate sent a letter to the Department of Homeland Security’s Acting Inspector General, urging for an investigation of allegations of coercion and abuse by DHS officers against immigrant parents separated from their children at the border. AILA Doc. No. 18092633

RESOURCES

An Attorney’s Ethical and Legal Obligations to Pereira-Affected Clients

UC Hastings CGRS Announces Launch of New Expert Witness Database

Practice Pointer: Submitting an Attorney Change of Address

NYIC on Public Charge

The Surgery Center for Female Genital Mutilation: The Surgery Center for FGM is the nation’s first and only non-profit center for treatment of FGM. Our efforts are funded completely by donations and grants which allow us to provide our services at no cost to the patient. We specialize in reversal of FGM by reconstructing the genitalia surgically. Our Center also offers psychological counselling and educational training for medical personnel.

EVENTS

10/1/18 MPI: Immigration Law & Policy Conference

10/2/18Bronx DV Roundtable Immigration Symposium

10/4/18 Department of Justice Recognition and Accreditation & Immigration Legal Services for Abused Immigrants

10/2/18-11/13/18 Introduction to Immigration Law Practice: A Course for New Practitioners

10/5/18 DACA Conference at New York City Bar Association

10/9/18 Citizenship in an Era of Record Migration and Growing Nationalism

10/9/18Stress Testing International Refugee Law: A Time of Gulag Archipelagos, Moats, and Walls

10/10/18 National Context: The Legal Fights over Sanctuary Policies

10/10/18 Immigrant Women, Labor, and the Quest for Gender Justice

10/13/18 The Economics and Ethics of Immigration

10/17/18Lives in the Balance: Eviscerating Asylum Protection for Victims of Gender Violence

10/18/18Temporary Protected Status Beneficiaries: What’s Next?

10/26/18 A Nation of Immigrants? 50 Years of the New Immigration

11/26-28/18 CLINIC & NITA “Advocacy in Immigration Matters”

2/8/19 Asylum, Special Immigrant Juvenile Status, Crime Victim, and Other Immigration Relief 2019

ImmProf

Monday, October 1, 2018

Marty Lederman: Return to Garza: How ORR is acting without statutory authority (and why DOJ’s arguments haven’t gotten any better since last year)

Sunday, September 30, 2018

Spotlight on Chobani founder Hamdi Ulukaya

Saturday, September 29, 2018

From the Bookshelves: Patriot Number One: American Dreams in Chinatown by Lauren Hilgers

Backlog of Pending Cases in Immigration Courts as of August 2018

Immigration Article of the Day: Invoking Common Law Defenses in Immigration Cases by Fatma Marouf

U.S. Government Targets Asylum Mills’ Clients

Friday, September 28, 2018

Immigration Article of the Day: State Anti-Sanctuary & Immigration Localism by Pratheepan Gulasekaram, Rick Su, and Rose Cuison Villazor

Former owner and manager of Long Island catering hall pleads guilty to forced labor charges

Trump’s latest immigration proposal is a looming public health crisis

Thursday, September 27, 2018

Should Credit Scores Impact Immigration?

Wednesday, September 26, 2018

NPR Tackles the Money Behind Immigration Enforcement

Tuesday, September 25, 2018

Susan Akram: The Trump administration is trying to reduce the number of Palestinian refugees, here’s why it won’t work

Editorial Cartoon by Matt Davies

At the Movies: Letters from Our Elders

Monday, September 24, 2018

Viet Thanh Nguyen on “Good” and “Bad” Immigrants, Race, Storytelling and Activism

From the Bookshelves: Sarah Song, Immigration and Democracy

Call for Papers – “Border Myths” Symposium Issue

AILA NEWS UPDATE

http://www.aila.org/advo-media/news/clips

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

Thanks, Elizabeth!

Check out the “Litigation Section” to see how “real” Article III Courts continue to reject the legal arguments pushed by the Sessions DOJ.

Perhaps the “sleeper” here is US v. Virgen-Ponce, ED WA. The District Judge rejected the BIA’s position in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018) that a “Notice to Appear” that fails to specify the actual time, date, and place of hearing is sufficient to vest jurisdiction with an Immigration Judge. The “boneheaded” position taken by the BIA and DHS under Sessions (rejecting the Supreme Court’s interpretation) could, if rejected by more Article III Courts and ultimately the Supremes, invalidate most of the 760,000 cases now pending in Immigration Court! Read my colleague Judge Jeffrey Chase’s outstanding blog about the BIA’s “dereliction of duty” in Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018) http://immigrationcourtside.com/2018/09/02/hon-jeffrey-chase-on-how-the-bia-blew-off-the-supremes-matter-of-bermudez-cota-27-in-dec-441-bia-2018-is-the-bia-risking-docket-disaster-to/

While this is only one District Court, the legal argument is being pursued across the country. This could potentially effectively “invalidate” the entire Immigration Court System. Given the toxic, lawless actions of AG Jeff Sessions, a “complete restart” under a neutral and competent court-appointed “Special Master” could be the country’s only salvation until Congress establishes an independent Immigration Court that actually complies with our Constitution.

Given such a chance at restart, probably 60% -75% of today’s Immigration Court docket could be left off docket pending a rational legalization program of some type.

With a remaining docket of 200,000 to 350,000 cases that actually need to be litigated, and a more disciplined and professional DHS that respects court time and follows the same type of prosecutorial discretion guidelines as almost every other law enforcement agency in America, an independent Immigration Court with today’s number of Immigration Judges could actually maintain an ideal 6-18 month “decision cycle” without building new backlog, and most importantly, without denying Due Process or fundamental fairness to anyone. It actually could fulfill it’s once-stated (but forgotten under Bush and Obama and then trashed by Sessions) vision of “being the world’s best tribunals, guaranteeing fairness and Due Process for all.”

What a difference honest, rational administration that actually encouraged compliance with the laws (including asylum and other protection laws) and our Constitution, instead of mocking and violating them, could make!

PWS

10-01-18

JOIN THE NEW DUE PROCESS ARMY (“NDPA”) & FIGHT AGAINST JEFF SESSIONS & HIS WHITE NATIONALIST ATTACK ON DUE PROCESS IN OUR IMMIGRATION COURTS! — Attend This Free Panel @ GW Law Tomorrow, Tuesday, Oct. 2 @ 3 PM

Immigration, Family Separation, Detention and Beyond: Where is the US Heading?
Alberto M. Benitez
Professor of Clinical Law Director of Immigration Clinic, GW Law
Michelle Brane
Director, Migrant Rights and Justice Program, Women’s Refugee Commission
Royce B. Murray
Policy Director American Immigration Council
This panel will discuss current issues related to the enforcement of immigration laws in the United States. The panelists will shed light on recent matters that have attracted significant media coverage, such as family separation policies, the practice of detaining families seeking asylum, and the plan advanced by the Trump Administration affecting immigrants seeking welfare benefits. The panel will discuss the domestic law implications of these issues, as well as their international law repercussions.
Closing Remarks: Paulina Vera, Supervisory Attorney, Immigration Law Clinic, GW Law Moderator: Rosa Celorio, Associate Dean, International & Comparative Legal Studies, GW Law
Tuesday, October 2, 2018 3:00-4:30 p.m.
Jacob Burns Moot Court Room [Lerner 101] Light Refreshments

GONZO’S WORLD: HE FIDDLES AS ROME BURNS! — Threats To Judges, Xenophobia, Racism, Cutting Corners, Dissing Respondents & Their Lawyers, Bogus Numbers, Aimlessly Adding Bodies Fail To Stem Tide Of Backlogged Cases In An Obviously Broken System — When Will Congress &/Or The Article IIIs Do Their Jobs By Restoring Due Process, Impartiality, & Competent, Apolitical Court Management To This Sorry Caricature Of A Court System?

Here’s the latest from TRAC:

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Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASE

Greetings. In August 2018, Immigration Courts remained overwhelmed with record numbers of cases awaiting decision. As of August 31, 2018, the number had reached 764,561. In July, the number of cases awaiting decision was 746,049 cases. This is a significant increase – up 41 percent – compared to the 542,411 cases pending at the end of January 2017, when President Trump took office.

California, Texas, and New York have the largest backlogs in the nation at 142,260, 112,733, and 103,054 pending caseloads respectively. While California is the state with the most pending cases, New York City’s immigration court topped the list of immigration courts with highest number at 99,919 pending cases at the end of August.

To view further details see TRAC’s immigration court backlog tool:

http://trac.syr.edu/phptools/immigration/court_backlog/

In addition to these most recent overall figures, TRAC continues to offer free monthly reports on selected government agencies such as the FBI, ATF, DHS and the IRS. TRAC’s reports also monitor program categories such as official corruption, drugs, weapons, white collar crime and terrorism. For the latest information on prosecutions and convictions through July 2018, go to:

http://trac.syr.edu/tracreports/bulletins/

Even more detailed criminal enforcement information for the period from FY 1986 through August 2018 is available to TRACFed subscribers via the Express and Going Deeper tools. Go to http://tracfed.syr.edu for more information. Customized reports for a specific agency, district, program, lead charge or judge are available via the TRAC Data Interpreter, either as part of a TRACFed subscription or on a per-report basis. Go to http://trac.syr.edu/interpreter to start.

If you want to be sure to receive notifications whenever updated data become available, sign up at:

http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the US Federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563

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At approximately 20,000 more backlogged cases per month, the “Gonzo-ized” version of the US Immigration Courts are on track to jack the backlog up to 1 million by the end of FY 2019! Talk about self-inflicted, totally unnecessary chaos!

Hiring more new Immigration Judges won’t solve the problem because 1) if they do the job right, they will be slow and deliberative, 2) if they are slow, they will be fired, 3) but if they do it “Gonzo’s way” and give Due Process a pass, many of their cases will be sent back by the Courts of Appeals, adding to the mess.

Gonzo’s recent “My Way or the Highway” speech to new IJs where he unethically urged them to violate their oaths of office by ignoring relevant humanitarian factors in asylum cases (which actually are supposed to be humanitarian adjudications) and just crank out more removal orders to carry out the Administration’s White Nationalist agenda is a prime example of why more judicial bodies can’t solve the problem without a complete overhaul of the system to refocus it on Due Process — and only Due Process.

Someday, the Immigration Courts will become independent of the DOJ. That should include a professionally-administered, transparent, merit-based, judicial selection and retention system with provision for meaningful public input. (Such systems now are used for selection and retention of US Bankruptcy Judges and US Magistrate Judges.) When that happens, those Immigration Judges who “went along to get along” with Gonzo’s xenophobic, anti-immigrant, ignore Due Process system might be challenged to explain why they are best qualified to be retained in a new system that requires fair, impartial, and scholarly judges.

This court system can be fixed, but not by the likes of Gonzo Apocalypto; also, not without giving the Immigration Judges back authority over their dockets and leverage to rein in a totally undisciplined, irresponsible, unprofessional, and out of control ICE. (Responsible, professional, practical, humane leadership at DHS and ICE is also a key ingredient for a well-functioning and efficient court system.)

PWS

09-27-18

LA TO GET MORE US IMMIGRATION JUDGES: But, Head Of Judges’ Association Says Throwing Bodies At Broken, Politicized, Demoralized Court System Won’t Solve The Due Process Crisis!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=8c9f4727-d315-41f8-bab7-12cef47a2f5d

Andrea Castillo reports for the LA Times:

Amid huge backlog, L.A. will get more immigration judges

Head of national jurist group says they’re ‘being used … as a political tool.’

By Andrea Castillo

Los Angeles has the nation’s second-largest immigration court backlog, with 29 judges handling 72,000 pending cases.

That’s including four judges who started within the last few months. An additional 10 were expected to be sworn in this week, according to Judge Ashley Tabaddor, who leads the National Assn. of Immigration Judges.

But she says that won’t fix the problem.

“We’re just transparently being used as an extension of the executive branch’s law-enforcement policies, and as a political tool,” she said.

U.S. Atty. Gen. Jeff Sessions welcomed 44 new judges earlier this month, addressing them at a kickoff for their training with the Executive Office for Immigration Review. He said the administration’s goal is to double the number of judges active when President Trump took office.

“As you take on this critically important role, I hope that you will be imaginative and inventive in order to manage a high-volume caseload,” Sessions told them. “I do not apologize for expecting you to perform, at a high level, efficiently and effectively.”

There are 351 judges in about 60 courts around the country — up from 273 judges in 2016. These judges manage a backlog of nearly 750,000 cases,a figure that has grown from a low of less than 125,000 in 1999. Last year, Sessions introduced a “streamlined hiring plan” that cut the hiring timefor immigration judge candidates by more than half.

The EOIR has the funding for 484 judges by the end of the year, spokeswoman Kathryn Mattingly said.

Tabaddor said the impending quotas and production deadlines, which take effect next month, have caused severe anxiety among judges. Justice Department directives that were announced in April outlined a quota system tied to performance evaluations under which judges will be expected to complete 700 cases a year to receive a “satisfactory” rating.

Hiring more judges won’t be enough to alleviate the pressure they’re all under, Tabaddor said.

“It’s pitting the judges’ livelihood against their oath of office, which is to be impartial decision-makers,” she said, calling it an “assembly-line formula.”

Tabaddor said there also isn’t enough space for new judges, so some might not start right away. She described the downtown L.A. offices as cramped, with law clerks sharing offices or cubicles. And she said additional support staff members have yet to be hired.

andrea.castillo@latimes.com

Twitter: @andreamcastillo

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Yup! As long as the Immigration Courts are under DOJ, and particularly under the rule of “Gonzo Apocalypto,” it will be an exercise in “throwing good money after bad.” As I’ve said before (perhaps in the LA Times?), what Sessions is doing is like “taking an assembly line that is producing defective cars and making it run faster so that it will produce even more defective cars.” More or less the definition of insanity, or at least “fraud, waste, and abuse” of Government resources. But, accountability went out the window as soon as Trump took over and the GOP controlled both the Executive and Congress.

For a glimpse of what Immigration Court will look like under the new “Gonzo Quotas,” check out this great video:

https://www.youtube.com/watch?v=HnbNcQlzV-4

We need regime change!

PWS

09-26-18

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I wanted to emphasize a few important points that you also may have heard from your ACIJ during your court meetings:

– We have concluded our discussions with NAIJ, and in the near future, we will publish on the intranet the Memorandum of Understanding that both parties agreed to at the conclusion of bargaining. Please review this document carefully when it becomes available.

– Please be patient, especially during the rollout and at the end of the first quarter, when numbers are likely to be low due to holidays and leave.

Thank you.

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