JUDGE STEPHEN REINHARDT 1931-2018 – Stalwart Defender Of US Constitution, Due Process, & Individual Rights Dies At 87 – “Unapologetic Liberal” Jurist Stood On Principle, Unfazed By Grenades Constantly Lobbed His Way By Right Wing & Supremes!

http://enewspaper.latimes.com/infinity/article_share.aspx?guid=92a5fc77-cf2b-4fbf-ac39-2ef3b89812fa

Maura Dolan reports for the LA Times:

By

Judge Stephen Reinhardt, the liberal face of the 9th U.S. Circuit Court of Appeals, died Thursday afternoon, a court spokesman said. He was 87.

The spokesman said Reinhardt died of a heart attack during a visit to a dermatologist in Los Angeles.

“All of us here at the 9th Circuit are shocked and deeply saddened by Judge Reinhardt’s death,” 9th Circuit Chief Judge Sidney R. Thomas said. “We have lost a wonderful colleague and friend.”

Thomas called Reinhardt “deeply principled, fiercely passionate about the law and fearless in his decisions.”

“He will be remembered as one of the giants of the federal bench. He had a great life that ended much too soon,” Thomas said.

Reinhardt, an appointee of former President Carter, was dubbed the “liberal lion” of the federal circuit courts.

His rulings in favor of criminal defendants, minorities and immigrants were often overturned by the more conservative U.S. Supreme Court.

Many lawyers have joked that Reinhardt’s name on a ruling was probably enough to get the attention of the conservatives on the Supreme Court. In 1996, after Reinhardt was reversed several times by the Supreme Court, The Times asked him if he was upset.

“Not in the slightest!” he boomed. “If they want to take away rights, that’s their privilege. But I’m not going to help them do it.”

No matter how many reversals he endured, Reinhardt used the bench to try to help the underdog. Just a few months ago, he called The Times to read a reporter a letter from a woman who had just been released from prison and who wanted to thank him for ruling in her favor.

“He was a giant not just on the 9th Circuit but within the law,” UC Berkeley law school Dean Erwin Chemerinsky said. “He also was a judge with a particular vision of the law, based on enforcing the Constitution to protect people.”

Reinhardt joined another judge in ruling that the words “under God” in the Pledge of Allegiance were unconstitutional, a decision that was later overturned.

He wrote a ruling that said laws prohibiting physician-assisted suicide were unconstitutional and another that overturned California’s previous ban on same-sex marriage.

Reinhardt also lamented Supreme Court rulings that limited judges’ ability to overturn convictions and sentences on habeas corpus and complained about the flaws in death penalty cases.

He was among the federal judges who decided that overcrowding in California’s prison system was unconstitutional.

“His view was to decide cases as he believed the law required, not to predict what the Supreme Court would do,” Chemerinsky said. “He was unapologetic about that.”

Conservatives often railed against Reinhardt, calling him lawless. They accused him of never voting to uphold a death sentence. Reinhardt, asked about that, said he was not sure.

He was particularly close to former 9th Circuit Judge Alex Kozinski, considered a conservative with libertarian views. They were dubbed the “odd couple.”

When Kozinski retired under pressure in December in response to sexual harassment allegations, Reinhardt bemoaned the departure. He said he kept a photograph of Kozinski planting a kiss on his cheek in his chambers.

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Read Dolan’s complete obit on Judge Reinhardt at the above link.

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My friend and former BIA colleague Judge Lory Diana Rosenberg added this heartfelt tribute:

I am heartbroken to learn of Judge Reinhardt’s dying. Just knowing he was alive and participating in our courts gave me deep hope that justice would prevail, at least in some quarters. I am so fortunate to have known him and to have spent a tiny bit of time with him and his wife at an international meeting years ago. He is a giant among judges. I will miss him.

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Here’s an excerpt from my favorite Judge Reinhardt concurring opinion in Magna-Ortiz v. Sessions:

The government’s insistence on expelling a good man from the country in which he has lived for the past 28 years deprives his children of their right to be with their father, his wife of her right to be with her husband, and our country of a productive and responsible member of our community. Magana Ortiz, who first entered the United States at 15, is now 43 years old, and during his almost three decades here has raised a family and built a successful life. All of his children, ages 12, 14, and 20, were born in this country and are American citizens, as is his wife. His eldest daughter currently attends the University of Hawaii, and he is paying for her education.

. . .

President Trump has claimed that his immigration policies would target the “bad hombres.” The government’s decision to remove Magana Ortiz shows that even the “good hombres” are not safe.3 Magana Ortiz is by all accounts a pillar of his community and a devoted father and husband. It is difficult to see how the government’s decision to expel him is consistent with the President’s promise of an immigration system with “a lot of heart.” I find no such compassion in the government’s choice to deport Magana Ortiz.

We are unable to prevent Magana Ortiz’s removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government’s decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.

2 The family’s right to occupy their home will terminate upon Magana Ortiz’s removal.

3 On January 25, 2017, the President signed a series of executive orders dismantling the system of priorities that had previously guided Immigration and Customs Enforcement and Border Patrol in determining whom to deport. The orders also gave far greater authority to individual agents and officers, who are now removing non-citizens simply because they are here illegally, regardless of whether they have committed any offense. In light of the breadth of these orders and the lack of any apparent limit on agents’ discretion, the undocumented must now choose between going to work, school, hospitals, and even court, and the risk of being seized. See James Queally, ICE Agents Make Arrests at Courthouses, L.A. Times, March 16, 2017.

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I must say that I had the same feelings as Judge Reinhardt on a number of occasions in my judicial career, although I never expressed them as eloquently as he did.

The wastefulness and futility of spending Government time, money, and authority removing fine people who were making remarkable contributions to our country, our economy, and our society certainly was apparent at the Immigration Court level. That this Administration has cynically chosen to aggravate this inhumane and quite frankly stupid situation rather than to attempt to fix it is most disheartening as is the fact that by placing them and retaining them in power we all become complicit in their bias and injustice! Harm to the most vulnerable among us is harm to all!

You can read the 9th Circuit’s complete decision in Magana Ortiz v. Sessions including Judge Reinhardt’s concurrence at this link:

Magana-Ortiz-9thReinhardt17-16014

PWS

03-30-18

 

 

 

 

NPR: Sessions Out To Destroy US Immigration Court System — “All the more reason why we need an independent Article I U.S. Immigration Court removed from the political shenanigans and enforcement bias of Sessions and his DOJ!”

https://www.npr.org/2018/03/29/597863489/sessions-want-to-overrule-judges-who-put-deportation-cases-on-hold

Joel Rose reports for NPR:

The Trump administration has been trying to ramp up deportations of immigrants in the country illegally. But one thing has been standing in its way: Immigration judges often put these cases on hold.

Now Attorney General Jeff Sessions is considering overruling the judges.

One practice that is particularly infuriating to Sessions and other immigration hard-liners is called administrative closure. It allows judges to put deportation proceedings on hold indefinitely.

“Basically they have legalized the person who was coming to court, because they were illegally in the country,” Sessions said during a speech in December.

Sessions is using his authority over the immigration court system to review a number of judicial decisions. If he overturns those decisions, thousands of other cases could be affected. In this way, he is expected to end administrative closure, or scale it back.

The attorney general may also limit when judges can grant continuances and who qualifies for asylum in the United States.

This could reshape the nation’s immigration courts, which are overseen by the Justice Department, and make them move faster. Sessions says he is trying to clear a massive backlog of cases that is clogging the docket.

But critics say he is weighing changes that would threaten the due process rights of immigrants, and the integrity of immigration courts.

“What he wants is an immigration court system which is rapid, and leads to lots of deportations,” said Nancy Morawetz, who teaches the Immigrant Rights Clinic at New York University School of Law.

“It’s really just an unprecedented move by the attorney general to change the way the whole system works,” she said.

It’s rare for an attorney general to exercise this power, but Sessions has done it four times in the past three months.

Separately, for the first time, the Justice Department is setting quotas for immigration judges, pushing them to resolve cases quickly in order to meet performance standards.

It’s not just immigration lawyers who are worried about the effect of any changes. The union that represents immigration judges is concerned, too.

“A lot of what they are doing raises very serious concerns about the integrity of the system,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges, “judges are supposed to be free from these external pressures.”

The attorney general insists he’s trying to make sure that judges are deciding cases “fairly and efficiently.” And says he is trying to clear a backlog of nearly 700,000 cases.

That is in addition to the hundreds of thousands of cases in administrative closure. Nearly 200,000 immigration cases have been put on hold in this way in the past five years alone.

“Far and away, administrative closure was being abused,” said Cheryl David, a former immigration judge who is now a fellow at the Center for Immigration Studies, which advocates for lower levels of immigration.

He says many of those cases should have ended in deportation. “But rather than actually going through that process, the Obama administration simply administratively closed them. And took them off the docket to be forgotten,” he said.

Sessions has chosen to personally review the case of an undocumented immigrant named Reynaldo Castro-Tum who didn’t show up for his removal hearing. The judge wondered whether the man ever got the notice to appear in court and put his deportation proceedings on hold.

In a legal filing in January, Sessions asked whether judges have the authority to order administrative closure and under what circumstances.

Immigration lawyers and judges say there are legitimate reasons to administratively close a case. For instance, some immigrants are waiting for a final decision on visa or green card applications.

There is a backlog for those applications, too. They’re granted by U.S. Citizenship and Immigration Services, which is separate from immigration court. And that can take months, if not years.

Immigration lawyers and judges are worried that undocumented immigrants could be deported in the meantime.

“You know this is not the private sector where you pay extra money and you can get it done in two days,” said Cheryl David, an immigration lawyer in New York.

David represents hundreds of undocumented immigrants who are facing deportation. She often asks judges to put the proceedings on hold.

“It gives our clients some wiggle room to try and move forward on applications,” she said. “These are human beings, they’re not files.”

Immigration lawyers say these changes could affect immigrants across the country.

Brenda DeLeon has applied for a special visa for crime victims who are undocumented. She says her boyfriend beat her up, and she went to the police.

She came to the U.S. illegally from El Salvador in 2015, fleeing gang violence, and settled in North Carolina.

“If I go back, then my life is in danger,” DeLeon said through a translator. “And not only mine, but my children’s lives too.”

For now, a judge has put DeLeon’s deportation case on hold while she waits for an answer on her visa application.

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Get the full audio version from NPR at the above link.

Haste makes waste! Gimmicks to cut corners, deny due process, and cover up the Administration’s own incompetent and politically driven mal-administration of the Immigration Courts is likely to cause an adverse reaction by the “real courts” — the Article III Courts of Appeals — who ultimately have to “sign off” on the railroading of individuals back to potentially deadly situations.

I also have some comments on this article.

  • In Castro-Tum, on appeal the BIA panel corrected the Immigration Judge’s error in administratively closing the case. Consequently, there was no valid reason for the Attorney General’s “certification” and using the case for a wide ranging inquiry into administrative closing that was almost completely divorced from the facts of Castro-Tum.
  • I also question Judge Arthur’s unsupported assertion that “Far and away administrative closing was being abused.”
    • According to TRAC Immigration, administrative closing of cases as an exercise of “prosecutorial discretion” by the DHS Assistant Chief Counsel accounted for a mere 6.7% of total administrative closings during the four-year period ending in FY 2015.
    • In Arlington where I sat, administrative closing by the Assistant Chief Counsel was a very rigorous process that required the respondent to document good conduct, length of residence, family ties, employment, school records, payment of taxes, community involvement, and other equities and contributions to the U.S. With 10 to 11 million so-called “undocumented” individuals in the U.S., removing such individuals, who were actually contributing to their communities, would have been a complete waste of time and limited resources.
    • The largest number of administrative closings in Arlington probably resulted from individuals in Immigration Court who:
      • Had been granted DACA status by USCIS;
      • Had been granted TPS by USCIS;
      • Had approved “U” nonimmigrant visas as “victims of crime,” but were waiting for the allocation of a visa number by the USCIS;
      • Had visa petitions or other applications that could ultimately have qualified them for permanent legal immigration pending adjudication by the USCIS.
    • Contrary to Judge Arthur’s claim, the foregoing types of cases either had legitimate claims for relief that could only be granted by or with some action by the USCIS, or, as in the case of TPS and DACA, the individuals were not then removable. Administrative closing of such cases was not an “abuse,” but rather eminently reasonable.
    • Moreover, individuals whose applications or petitions ultimately were denied by the USCIS, or who violated the terms under which the case had been closed by failing to appear for a scheduled interview or being picked up for a criminal offense were restored to the Immigration Court’s “active docket” upon motion of the DHS.

There are almost 700,000 cases now on the Immigration Courts’ docket — representing many years of work even if there were no new filings and new judges were added. Moreover, the cases are continuing to be filed in a haphazard manner with neither judgement nor restraint by an irresponsible Administration which is allowing DHS Enforcement to “go Gonzo.” To this existing mess, Sessions and Arthur propose adding hundreds of thousands of previously administratively closed cases, most of which shouldn’t have been on the docket in the first place.

So, if they had their way, we’d be up over one million cases in Immigration Court without any transparent, rational plan for adjudicating them fairly and in conformity with due process at any time in the foreseeable future. Sure sounds like fraud, waste, and abuse of the system by Sessions and DHS to me. All the more reason why we need an independent Article I U.S. Immigration Court removed from the political shenanigans and enforcement bias of Sessions and his DOJ. We need this reform sooner, rather than later!

PWS

03-30-18

 

 

 

 

 

STEVE VLADECK: How U.S. Courts Undermine Our Constitution — A Constitution Without Remedy For Violations Is An Empty Document!

https://www.nytimes.com/2018/03/27/opinion/increasingly-unenforceable-constitution.html

Vladeck writes in a New York Times op-ed:

For all of the attention that we pay to our constitutional rights, we devote stunningly little attention to the more legalistic — but no less important — topic of how those rights are enforced. And as a largely unnoticed rulinglast week by the full United States Court of Appeals for the Fifth Circuit demonstrates, the Supreme Court has quietly made it all but impossible for most victims of constitutional violations by the federal government to obtain relief.

Not only is this development antithetical to the core purpose of having an independent judiciary, but it will almost certainly lead to more unconstitutional conduct by even the most well-meaning federal officers, who, in most cases, no longer have to seriously worry about the specter of judicial review.

Image
Maria Guadalupe Guereca’s son was shot dead in Mexico near the border by a patrol agent on the U.S. side.CreditYuri Cortez/Agence France-Presse — Getty Images

The case that the New Orleans-based federal appeals court ruled on involved the fatal cross-border shooting of an unarmed 15-year-old Mexican national on Mexican soil by a United States Border Patrol agent standing on American soil. The family of the victim, Sergio Hernández, sued the responsible agent, Jesus Mesa, claiming that the shooting was unprovoked and violated the teenager’s rights under the Fourth and Fifth Amendments. Whether the Constitution protects a foreign national standing on foreign soil in a case like this is an interesting and still-open question. But rather than resolving that issue, the Court of Appeals held, by a 13-2 vote, that it didn’t matter; even if the shooting violated clearly established constitutional rights, the majority concluded, the federal courts should not recognize a remedy of damages for fear of intruding upon the legislative and executive branches of government.

. . . .

That’s a troubling conclusion, because government officers like Agent Mesa will have less of a reason to worry about the constitutional rights of those with whom they interact. But at a deeper level, our constitutional rights aren’t worth all that much if there’s no mechanism for enforcing them. One can only hope that sometime soon the Supreme Court comes to its senses and agrees.

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Go on over to the NYT at the link for the full op-ed.

I decried the Fifth Circuit’s dereliction of duty in a recent blog focusing on the much more persuasively reasoned and powerful dissent by Judge Edward Prado.  But, only one of his other 14 black-robed Ivory Towerists were willing to join Judge Prado, step up to the plate, and defend our constitutional rights. What kind of folks and jurists are getting these lifetime sinecures just to avoid controversy and not to stand up for what’s right?

Yup. Today it’s just some Mexican kid (who also happened to be a human being and someone’s son) who was shot by the Border Patrol. But, tomorrow it might be your son or daughter or you yourself whose rights are violated. And, who is going to step up and vindicate your constitutional rights? Certainly not the 13 judges of the Fifth Circuit majority in Hernandez v. Mesa who looked for and found ways to avoid their collective duty to uphold our Constitution.

PWS

03-29-18

JOSHUA MATZ IN WASHPOST: The Litigating Strategy Of Unrelenting Animus – Will It Eventually Win For The Trumpsters, Even While Destroying Our Legal System?

https://www.washingtonpost.com/opinions/getting-deja-vu-on-trumps-transgender-ban-youre-not-alone/2018/03/27/4e78091e-312e-11e8-8bdd-cdb33a5eef83_story.html

March 27 at 7:14 PM

Joshua Matz is a constitutional lawyer based in the District. He is also the publisher of the legal analysis blog Take Care.

President Trump is hard at work making animus the law of the land. Justice Department lawyers revealed his latest effort Friday night, announcing a revised plan to exclude nearly all transgender soldiers from the armed forces.

As many commentators haveobserved, the reasoning offered to support Trump’s policy is riddled with empirical errors and anti-trans stereotypes. It comes nowhere close to disproving the comprehensive study in 2016 that recommended allowing transgender people to serve openly. Like so many other missives from this White House, it makes only a token effort to conceal the disdain and disgust that underlie it.

Trump’s original “transgender ban” was blocked byfourfederal courts. After two of those rulings were affirmed on appeal, the administration decided against seeking Supreme Court review. It’s therefore safe to assume that Trump’s latest order will not go into effect unless it survives constitutional challenges.

And in thinking about that litigation, it’s hard to escape a feeling of deja vu. A little more than 14 months into Trump’s presidency, a pattern has emerged in cases challenging some of his most despicable decisions.

. . . .

It remains to be seen when and where these arguments will succeed. As a logical matter, there must be some limits. Evidence that Trump originally acted with impermissible motives cannot (and should not) permanently preclude him from making policy.

But that isn’t the situation we confront. Trump has made no effort whatsoever to dispel or deny the aura of animus that envelops so many of his orders. To the contrary, he and his advisers have leaned into the hate. With each passing day, it spreads like a poison.

We thus live in a strange new world, where bigots serve openly and soldiers are forced into closets.

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Go on over to the WashPost at the link for the complete article.
The problem, as noted by Matz, is that our system isn’t designed to deal with unremitting hate and bias from it’s most active, and supposedly most responsible, litigant, the U.S. Government. Usually, after a few “warning shots across the bow,” the Executive gets the picture and changes strategies.
But, led by White Nationalists like Trump and Sessions, this Administration simply “doubles down” on thinly disguised hate and bias motivated policies. At some point, the Article III courts are likely to become both frustrated and exhausted. By continuing to “knock down” bias-based policies and actions, the Article IIIs become part of the political fray, which makes them uncomfortable. Perhaps at that point, they will just start giving Trump & Co. “free passes.” Indeed, some Federal Courts, including perhaps the Supremes, already appear prepared to “punt” on the daily dose of  legally questionable and indecent legal positions spewed forth by this Administration.
PWS
03-29-18

BIA IN FANTASYLAND: Evidence Continues To Mount That BIA’s Deference To Border Statements In Matter of J-C-H-F- Was a Flight of Fantasy That No Reasonable Fact Finder Would Have Reached – How You Can Fight Back Against This Blatant Perversion Of Justice!

http://immigrationimpact.com/2018/03/26/uscis-records-abusing-asylum-seekers/

AARON REICHLIN-MELNICK writes in Immigration Impact:

As thousands of Central American families arrived at the U.S.-Mexico border asking for asylum in 2014, human rights organizations raised alarms about asylum seekers’ treatment by Customs and Border Protection officials. But these organizations were not the only ones expressing concern—asylum officers within U.S. Citizenship and Immigration Services also raised alarms about CBP misbehavior.

A new Freedom of Information Act lawsuit hopes to reveal how asylum officials’ repeated concerns about CBP officer misconduct were left unaddressed. The lawsuit, filed by Human Rights Watch and Nixon Peabody LLP, seeks information about such misbehavior, including hundreds of reports that CBP failed to properly screen asylum seekers.

This lawsuit comes after Human Rights Watch, along with the American Immigration Council, filed a FOIA request asking for records of complaints made by officers in USCIS’s Asylum Division. The lawsuit asks USCIS to turn over all records of complaints about CBP misconduct from 2006 to 2015, arguing that the agency violated FOIA by failing to provide requested key documents following the original request. These documents included a spreadsheet where asylum officers purportedly documented hundreds of instances of “problematic Border Patrol practices.”

CBP officers at ports of entry and along the U.S. border are generally the first to encounter newly arriving asylum seekers. When asylum seekers express a fear of returning to their home country to a CBP officer, the officer is required to refer them to an asylum officer with USCIS for an interview. The asylum officer decides whether the asylum seeker has a “credible fear” of persecution, a determination which allows the asylum seeker to pursue an asylum case in immigration court.

Because these credible fear interviews occur after an asylum seeker has already been processed by CBP officers at the border or ports of entry, asylum officers are able to ask about any encounters with CBP. The limited records USCIS offered in response to the FOIA show that asylum officers often had serious concerns about the behavior of its sister agency.

The documents produced to date demonstrate how grave the problem is:

  1. One email from an asylum officer to a supervisor expresses a belief that there are “significant issues in how some Border Patrol officers are screening individuals.”
  2. A second email discusses an incident where “CBP mocked a transgender woman for hours and refused to record her fear” of returning to her home country. These internal reports of CBP abuse match the reports of many asylum seekers who encountered abuse at the hands of CBP officers during the same time period.
  3. A third email from an asylum officer expressed concerns that an asylum seeker was coerced into withdrawing his request for asylum, with the officer writing that: “What is especially disturbing about this is that … the record indicates that [the asylum seeker] has been subjected to harassment, intimidation, and physical mistreatment by CBP upon his recent entry into the United States, and this mistreatment. . . affected his decision to dissolve his case.”

Records of CBP’s mistreatment of asylum seekers is especially important as the numbers of asylum-seekers at the border continue to rise. Last year, groups sued CBP, alleging a pattern or practice of unlawfully turning away asylum seekers who arrived at ports of entry and requested asylum. In light of CBP’s own inadequate complaint system, this new lawsuit could substantiate the many reports of the agency’s misconduct.

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Both Judge Jeffrey Chase and I have “roasted” in prior blogs the BIA’s disingenuous and “clearly erroneous greenlighting” of Border Patrol statements in Matter of J-C-H-F, 27 I&N Dec. 211 (BIA 2018). Quite contrary to the BIA’s unjustified “head in the sand” presumption of regularity given these flawed statements, there is clear public evidence, compiled over more than a decade, that such statements should be considered “presumptively unreliable.”

In addition to addressing the elements of the bogus “test” enunciated by the BIA in J-C-H-F- what should advocates do to fight this type of clearly biased, largely “fact free,” unwarranted pro-DHS decision-making by the BIA?

  • First, as Jeffrey and I have pointed out, get the publicly available reports of the U.S. Commission on International Religious Freedom (“USCIRF”) which show that glaring errors in accuracy and reliability raised as long ago as 2006 remained unaddressed as of 2016.
  • Second, use the additional materials cited in the above article to show how DHS has suppressed its own internal documents establishing the unreliability of the Border Patrol statements.
  • Third, get in touch with Human Rights Watch and the American Immigration Council to see if any additional FOIA materials have been made available which establish unreliability.
  • Fourth, ask someone from Human Rights Watch about a database I have heard they are establishing to provide “hard evidence” to challenge the reliability of Border Patrol statements.

In the “Age of Sessions,” I wouldn’t hold my breath for the “captive” BIA to recede from its travesty in J-C-H-F-. That’s why it’s critically important for advocates to do a great job of “setting the record straight” in the Courts of Appeals.

But, to do that, evidence challenging the Border Patrol statements must be offered at the trial stage before the Immigration Judge. Documenting and exposing the BIA’s disingenuous decision-making will also undermine the BIA’s overall credibility before the Courts of Appeals and perhaps eventually lead to a reversal of the unjustified “Chevron deference” the Board currently receives.

Today’s Board masquerades as a deliberative “expert tribunal” that neither publicly deliberates nor possesses any obvious expertise — a situation aggravated because nobody who works for the biased White Nationalist xenophobe Jeff Sessions can legitimately be considered “unbiased” or “impartial” when it comes to adjudication of migrants rights. Don’t forget, even if the BIA rules in the respondent’s favor, something that happens less and less these days, each an every BIA decision is subject to an inappropriate “certification and reversal” process by Sessions that he has shown little hesitation in invoking recently.

How can a respondent receive a “fair hearing” from a “court” where the Government’s leading enforcement figure holds all the cards? Obviously, he or she can’t! You can help make a record that eventually should force the “Article III’s” to shut down this “caricature of American justice.”

Due Process Forever!

PWS

03-28-17

 

TAL @ CNN: Administration’s Plan To Request Citizenship Information In Census Provokes New Litigation!

http://www.cnn.com/2018/03/27/politics/census-commerce-department-immigration-california/index.html

 

California sues over Census citizenship question

By Tal Kopan, CNN

Progressives, states and civil rights advocates are preparing a flurry of legal challenges to the Trump administration’s decision to add a question about citizenship to the next census, saying the move will penalize immigrants and threaten civil rights.

The late Monday move from the Commerce Department, which it said came in response a request by the Justice Department, would restore a question about citizenship that has not appeared on the census since the 1950s. The administration said the data was necessary to enforce the 1965 Voting Rights Act.

The state of California immediately challenged the plan in federal court.

California Attorney General Xavier Becerra and Secretary of State Alex Padilla trashed the move as anti-immigrant.

“The citizenship question is the latest attempt by President Trump to stoke the fires of anti-immigrant hostility,” Padilla said in a statement. “Now, in one fell swoop, the US Commerce Department has ignored its own protocols and years of preparation in a concerted effort to suppress a fair and accurate census count from our diverse communities. The administration’s claim that it is simply seeking to protect voting rights is not only laughable, but contemptible.”

Former Obama administration Attorney General Eric Holder also blasted the move and said his organization, which focuses on voting enfranchisement and redistricting, would also pursue litigation against what he called an “irresponsible decision.”

Holder said contrary to the rationale presented by the Justice Department, Holder said he and other modern-era attorneys general were “perfectly” able to handle those legal matters without such a question on the Census.

“The addition of a citizenship question to the census questionnaire is a direct attack on our representative democracy,” Holder said in a statement. “Make no mistake — this decision is motivated purely by politics. In deciding to add this question without even testing its effects, the administration is departing from decades of census policy and ignoring the warnings of census experts.”

Critics of the move say that including such a question on a government survey will scare non-citizens and vulnerable immigrant communities into under-reporting. By undercounting these populations, they argue, there will be a major impact that follows on voting and federal funds.

Because the once-a-decade census is used to determine congressional and political districts and to dole out federal resources, an undercount in heavily immigrant areas could substantially impact certain states and major cities and potentially their representation at the federal level.

The question has not been on the full census since the 1950s, but does appear on the yearly American Community Survey administered by the Census Bureau to give a fuller picture of life in America and the population.

The Commerce Department said the decision came after a “thorough review” of the request from the Justice Department. The priority, Commerce said, was “obtaining complete and accurate data.”

“Having citizenship data at the census block level will permit more effective enforcement of the VRA, and Secretary Ross determined that obtaining complete and accurate information to meet this legitimate government purpose outweighed the limited potential adverse impacts,” the statement said.

Becerra and his state have been central to virtually every legal challenge of the Trump administration on issues ranging from immigration, to the environment, to health care. The Justice Department has also sued California over its so-called sanctuary policies to protect immigrants.

More challenges could soon follow.

Wendy Weiser, director of the Brennan Center’s Democracy Program, a nonprofit that works on issues of justice and civil rights, said the question had no place in the Census.

“Our Constitution requires a complete and accurate count of everyone living in the country, no matter her or his citizenship status. The administration’s decision to add a citizenship question is at best a dramatic misstep, and at worst a politically-motivated move that will undermine a fair and accurate census,” Weiser said. “This question is a dangerous move that could lead to a serious skewing of the final census results, which would have a deleterious effect on our system of representative democracy. We urge the administration to reconsider.”

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The idea that the Justice Department under Jeff Sessions wants this information to enforce the Voting Rights Act (“VRA”) is preposterous on its face! So far, the only interest that Sessions and his crew at the DOJ have shown in the VRA is to insure that White GOP voters are enfranchised and that African-Americans and other minorities are disenfranchised.

Because all individuals in a congressional district are entitled to representation, regardless of citizenship status or other legal status, promoting an undercount (which is what the Administration obviously intends) will work to the disadvantage of those districts with large populations of immigrants, whether legal or illegal.

Stay tuned. There probably are many more similar suits to come, and “Tal is on the ball” to keep us completely informed.

PWS

03-27-18

JUDGE EDWARD C. PRADO DISSENTS FROM 5TH CIRCUIT’S ABANDONMENT OF CONSTITUTION IN BIVENS CASE — HERNANDEZ V. MESA

Hernandezv.Mesa,Bivens,5th

Hernandez v. Mesa, 5th Cir., 03-20-18, published

On remand from the U.S. Supreme Court

BEFORE 5TH CIRCUIT EN BANC:  STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, and COSTA, Circuit Judges.

MAJORITY OPINION: EDITH H. JONES, Circuit Judge, joined by STEWART, Chief Judge, JOLLY, DAVIS, SMITH, DENNIS,** CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES,*** HIGGINSON, and COSTA, Circuit Judges.

** Judge Dennis concurs in the judgment.
*** Judge Haynes concurs in the judgment and with the majority opinion’s conclusion that Bivens should not extend to the circumstances of this case.

DISSENTING OPINION: EDWARD C. PRADO, Circuit Judge, joined by GRAVES, Circuit Judge, dissenting.

EXCEPTS FROM JUDGE PRADO’S DISSENT:

“Today’s en banc majority denies Sergio Hernandez’s parents a Bivens remedy for the loss of their son at the hands of a United States Border Patrol agent. The majority asserts that the transnational nature of this case presents a new context under Bivens and that special factors counsel against this Court’s interference. While I agree that this case presents a new context, I would find that no special factors counsel hesitation in recognizing a Bivens remedy because this case centers on an individual federal officer acting in his law enforcement capacity. I respectfully dissent.

. . . .

In sum, this Court is more than qualified to consider and weigh the costs and benefits of allowing a damages action to proceed. This case simply involves a federal official engaged in his law enforcement duties acting on United States soil who shot and killed an unarmed fifteen-year-old boy standing a few feet away. I would elect to recognize a damages remedy for this tragic injury. As Chief Justice John Marshall wrote, “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison, 5 U.S. 137, 163 (1803). In this case, I would recognize a Bivens remedy for this senseless cross-border shooting at the hands of a federal law enforcement officer. Therefore, I respectfully dissent.”

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Judge Edward C. Prado is nor just “any” U.S. Circuit Judge. Among other things in his long and distinguished career, Judge Prado was the U.S. Attorney for the Western District of Texas during the Reagan Administration. I dealt with him on some immigration issues during my as the Deputy General Counsel in the “Legacy INS” during that time.  He is a gentleman and a scholar.

Perhaps appropriately, this is likely to be Judge Prado’s last major published opinion. On March 22, 2018, he was confirmed by the Senate as the U.S. Ambassador to Argentina. Congratulations Ambassador Prado; thanks for leaving us this great dissent as a reminder of how the law should be interpreted and applied!

PWS

03-25-18

 

 

HON. JEFFREY CHASE RETURNS WITH MORE ANALYSIS OF RETIRED JUDGES’ AMICUS BRIEF IN C.J.L.G. V. SESSIONS

https://www.jeffreyschase.com/blog/2018/3/21/amicus-brief-filed-in-cjlg-v-sessions

 

Mar 21 Amicus Brief Filed in C.J.L.G. v. Sessions

On March 15, lawyers with the firm of Simpson, Thacher & Bartlett filed an amicus brief with the U.S. Court of Appeals for the Ninth Circuit on behalf of 11 former immigration judges and BIA Board members in the case of C.J.L.G. v. Sessions. The case involves a child from Honduras who appeared in immigration court accompanied only by his mother. As the respondent could not obtain a lawyer in the time afforded, the immigration judge went forward with the hearing, informing the mother that she would “represent” her son.

The respondent is an asylum applicant whose gang-related claim rested on his ability to precisely delineate a particular social group pursuant to requirements complex enough to stump most attorneys. As his mother lacked any legal training, his hearing did not go well. On appeal, the BIA affirmed the IJ’s denial of the claim. In its decision, the BIA determined that the respondent did not suffer past persecution when at the age of 13, members of MS-13, a brutal, multinational gang, threatened to kill him, his mother, and his aunt if he refused to join their ranks, put a gun to his head to emphasize their point, and told him that he had one day to decide. The BIA also found the hearing before the IJ to have been fair, and that the respondent was not denied due process because the immigration laws do not require the appointment of counsel in removal proceedings.

Hon. Dana Marks, an outstanding jurist and president emeritus of the National Association of Immigration Judges, often states that immigration judges hear “death penalty cases under traffic court conditions.” What she means by this is that a genuine asylum seeker who is denied relief and deported faces the risk of death in the country from which he or she fled. Yet the conditions under which such life-or-death claims are heard are inadequate; the limited time and resources afforded to the judges hearing such claims are better suited for a court hearing much lower stakes matters such as traffic tickets. Courts hearing cases involving matters of life and liberty have a higher obligation to afford due process. First and foremost, a defendant facing criminal charges in a state or federal court is entitled to assigned counsel. However, although the stakes may be higher in an asylum case, respondents in immigration court have no such entitlement. Although the respondent in C.J.L.G. may face death if deported, having a judge determine it was fine to proceed, and telling his mother that she would represent him sounds like something that might be appropriate in traffic court.

A three-judge panel of the Ninth Circuit denied the respondent’s petition for review. Interestingly, the respondent was found credible in his recounting of the death threats he suffered and as to his fear of return; the court accepted the statistics provided by respondent’s counsel that unrepresented respondents succeed on their claims only 10 percent of the time, whereas as represented minors enjoy a 47 percent success rate. The court also assumed that the respondent qualifies as an indigent (due to his mother’s inability to afford private counsel), and that ordering him removed would send him “back to a hostile environment where he has faced death threats in the past implicates his freedom.” The court further acknowledged that the immigration laws and regulations include assuring minors “the right to a ‘full and fair hearing,’ which includes the ‘opportunity to present evidence and testimony on one’s behalf,’ cross-examine witnesses, and examine and object to adverse evidence.” It would be difficult to argue that an unrepresented minor is capable of exercising such rights.

In spite of this, the court denied the petition, determining that there was no Constitutional right to assigned counsel at government expense to minors in removal proceedings. The court further found that the respondent had not demonstrated prejudice, as he had not established a nexus to a protected ground as required to establish eligibility.

The ACLU has filed a petition for the Ninth Circuit to rehear the case en banc. It is in support of this latest petition that the latest amicus brief was filed. I am one of the former IJs included in the brief; I join my colleagues in being proud to assist in such a noble effort as securing assigned counsel for immigrant children facing the legal complexities and dire consequences of immigration proceedings. In a nutshell, the brief argues that the efforts of an immigration judge to provide a fair hearing is no substitute for counsel. Immigration judges can only do so much faced with “overburdened and growing dockets, the complexity of immigration law, and, as Department of Justice (DOJ) employees, the constraints of administrative policy.”

The problem is compounded in cases in which the asylum claim is based on membership in a particular social group. The BIA has recently held that an asylum applicant must specifically delineate such group, a requirement that is clearly beyond the ability of a child (or his or her mother) to do. As the brief points out, in this case, the respondent “ and his mother showed no understanding of why a gang-related threat alone would not warrant asylum, but the IJ’s cursory inquiry ended without seeking the motivation for the threat.”

Of course, the entire issue could be resolved by the Department of Justice choosing to do what is right by agreeing to provide assigned counsel at government expense to this most vulnerable group.

Heartfelt thanks to partner Harrison J. “Buzz” Frahn and associate Lee Brand of the law firm of Simpson Thacher & Bartlett for their dedication and effort in drafting the excellent brief.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

JEFF CHASE
Mar 10 The AG’s Strange Decision in Matter of E-F-H-L-
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Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First. He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

Blog Archive Contact

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As pointed out by Jeffrey, this is an incredibly important case for Due Process under our Constitution! Let’s hope that the en banc Ninth gives it a close look.

PWS

03-22-18

 

 

 

ANOTHER WASHPOST LEAD EDITORIAL RIPS CRUEL, INHUMANE, ADMINISTRATION POLICIES ON SEPARATING CHILDREN – In Plain Terms, Our Government Is Engaging in Child Abuse!

https://www.washingtonpost.com/opinions/dhs-keeps-separating-kids-from-their-parents–but-officials-wont-say-why-or-how-often/2018/03/20/0c7b3452-2bb4-11e8-8ad6-fbc50284fce8_story.html?utm_term=.8fe0d0d7b420

DHS keeps separating kids from their parents — but officials won’t say why or how often


Immigration and Customs Enforcement headquarters in Washington. (Salwan Georges/The Washington Post)
March 20 at 7:31 PM

LAST FRIDAY night, a 7-year-old Congolese girl was reunited with her mother in Chicago, four months after immigration agents of the Department of Homeland Security separated them for no defensible reason. When the little girl, known in court filings as S.S., was delivered by a case worker to her mom, the two collapsed to the floor, clutching each other and sobbing. According to the mother’s lawyer, who was in the room, S.S., overwhelmed, cried for the longest time.

That sounds like a happy ending to a horrific story. In fact, according to immigrant advocates, such separations are happening with increasingly frequency — with no credible justification.

In the case of S.S. and her mother, known in court filings as Ms. L., the trauma visited on a little girl — wrenched from her mother, who was detained in San Diego, and flown nearly 2,000 miles to Chicago — was gratuitous. A U.S. official who interviewed Ms. L. after she crossed the border into California determined she had a reasonable asylum claim based on fear for her life in her native Congo. Despite that, mother and daughter were torn apart on the say-so of an immigration agent, and without explanation.

A DHS spokesman, Tyler Houlton , says separating children from their parents is justified when paternity or maternity is in doubt, or when it is in a child’s best interest. However, in court filings, officials present no cause for doubt about Ms. L.’s maternity, nor evidence that it was in S.S.’s “best interest” to be taken from her mother last November, when she was 6 years old.

Rather, in court filings, an official from Immigration and Customs Enforcement, a DHS agency, lists some documentary discrepancies on Ms. L.’s part, in which officials in Angola, Panama and Colombia recorded different versions of her name. Never mind the translation problems she may have encountered in Latin America as a speaker of Lingala, a language spoken only in central Africa.

Even if Ms. L. fudged her identity, how would that justify taking away her child? And if there were doubts about Ms. L.’s maternity, why didn’t ICE request a DNA test at the outset, before sundering mother and child? When a DNA test was finally done — four months later — it immediately established Ms. L.’s maternity.

Immigrant advocates say DHS has separated children from immigrant parents scores of times in recent months, perhaps to deter other asylum seekers by trying to convince them the United States is even more cruel than their native countries. Officials at DHS have floated that idea publicly in the past year. They insist it is not their policy. However, they also have declined to provide statistics showing the frequency of separations.

Responding to a class-action lawsuit filed by the American Civil Liberties Union on behalf of parents separated from their children, ICE insists it has done nothing so outrageous that it “shocks the conscience” — a Supreme Court standard for measuring the denial of due-process rights.

Here’s a question for Homeland Security Secretary Kirstjen Nielsen: If it does not “shock the conscience” to traumatize a little girl by removing her from her mother for four months in a land where she knows no one and speaks no English, what does “shock the conscience”?

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Stop the Trump Administration’s program of turning America into a reviled human rights abuser! What about “Gonzo Apocalyto’s” policies of turning our Immigration Courts into “enforcement deterrents” rather than protectors of fairness and Due Process?

Join the New Due Process Army now! Resist in the “real’ courts. Vote Trump, his abusers, and his enablers out of office! 

Harm to the most vulnerable among us is harm to all of us. Due Process Forever!

PWS

03-21-18

VIEWS YOU CAN USE: SOPHIA GENOVESE SETS FORTH A BLUEPRINT FOR LEGAL RESISTANCE TO WHITE NATIONALIST XENOPHOBIA & SESSIONS’S ASSAULT ON HUMAN RIGHTS & THE RULE OF LAW FOR ASYLUM SEEKERS!

https://www.lexisnexis.com/legalnewsroom/immigration/b/immigration-law-blog/archive/2018/03/20/sessions-likely-to-end-asylum-eligibility-for-victims-of-domestic-violence-how-courts-can-resist.aspx?Redirected=true

Sophia writes at LexisNexis Immigration Communities:

“Violence against women is the most pervasive and underreported human rights violation in the world. Whether you live on the Upper East Side or in Gugulethu, South Africa, you likely know a woman or girl who has been the victim of sexual or gender-based violence. Maybe you are that woman or girl.[i]

International asylum frameworks have long grappled with how to address this gender-based persecution. After years of debating whether victims of domestic violence have a legitimate claim to asylum, the US Board of Immigration Appeals (BIA) finally recognized in 2014 that married women who are unable to leave their relationships may constitute a cognizable particular social group for the purposes of seeking asylum. Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014); see also Matter of D-M-R- (BIA June 9, 2015) (clarifying that a victim of domestic violence need not be married to her abuser). Although some advocates argue the decision does not go far enough, the protections and opportunities that Matter of A-R-C-G– have provided to thousands of women cannot be understated. Despite these advancements, Attorney General Jeff Sessions has questioned whether such claims to asylum are legitimate by referring to himself a BIA case, Matter of A-B- (BIA Dec. 8, 2016), where the Board found that a victim of domestic violence was indeed eligible for asylum. Pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2017), Sessions may refer a case to himself for review, and has asked each party to submit briefs on “[w]hether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” Matter of A-B-, I&N Dec. 227 (A.G. 2018).

As brief background, in order to be granted asylum, the applicant must show that they have suffered past persecution or have a well-founded fear of future persecution on account of their race, religion, nationality, membership in a particular social group, or political opinion, and that he or she is unable or unwilling to return to, or avail himself or herself of the protection of, their country of origin owing to such persecution. 8 C.F.R. § 1208.13(b)(1) & (2). To be granted asylum based on one’s membership in a particular social group, the applicant must show that the group is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” Matter of A-R-C-G-, 26 I. & N. at 392. As set forth in Matter of Acosta, 19 I&N Dec. 211, 212 (BIA 1985), a “common immutable characteristic” is defined as “a characteristic that either is beyond the power of the individual members of the group to change or is so fundamental to their identities or consciences that it ought not be required to be changed.” Under  Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) and clarified in Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014), the social group must be defined with “particularity,” or be defined by boundaries of who is actually a member of the group. Finally, as explained in Matter of W-G-R-, “social distinction” is defined as the ‘recognition’ or ‘perception’ of the particular social group in society. 26 I&N Dec. at 216. The applicant must also show that her persecution was on account of her membership in the social group, and that the government in her country of origin is unable or unwilling to afford her protection from such persecution.

In Matter of A-R-C-G-, the Board found that the lead respondent had met her burden in establishing eligibility for asylum, and held that “[d]epending on the facts and evidence in an individual case, ‘married women in Guatemala who are unable to leave their relationship’ can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal.” 36 I&N Dec. at 388. In this case, the lead respondent was married to a man who regularly beat her, raped her, and on one occasion, burned her. She had contacted local authorities several times to escape her abuser, but was told that the police would not interfere with domestic matters. The respondent had even moved out, but her husband found her and threatened to kill her if she did return. Fearing for her life, and knowing that she could not be safe if she stayed in Guatemala, the respondent fled to the United States.

The Immigration Judge in Matter of A-R-C-G- found that the respondent’s abuse was the result of “criminal acts, not persecution,” and further found that the respondent was not eligible for asylum. On appeal, the BIA found that “married women in Guatemala who are unable to leave their relationship” is indeed a cognizable social group. First, the BIA asserted that the immutable characteristic in this matter was “gender,” and also found the marital status would satisfy the requirement where the woman is unable to leave the relationship. Second, the BIA found that the particular social group had been defined with particularity, where “married,” “women,” “who are unable to leave their relationship” have commonly accepted definitions in Guatemala, stating that it was particularly significant that the respondent had sought protection from the police but was denied protection due to her social group. Finally, the BIA found that the group was socially distinct in society, where Guatemala has a culture of “machismo and family violence,” where the respondent’s social group is easily perceived and recognized in Guatemalan society, and where Guatemala has created laws to protect the respondent’s social group, but has failed to successfully implement them. The BIA cautioned in their decision that particular social group analyses in cases that involve victims of domestic violence will depend heavily on the facts, including country conditions.

. . . .

Despite the BIA’s findings, and decades of tireless efforts by advocates, Attorney General Sessions now refers the case to himself and has asked parties to submit briefs on “whether, and under what circumstances, being a victim of private criminal activity constitutes a cognizable ‘particular social group’ for purposes of an application for asylum or withholding of removal.” Matter of A-B-, 27 I&N Dec. 227 (A.G. 2018). There may have been bad faith on the part of the Immigration Judge below who held up A-B-’s case on remand, then sent it back to the BIA eight months later by raising a “facially bogus legal issue,” only to have AG Sessions refer the case to himself and stripping the BIA of jurisdiction.

Sessions has made clear his animus against immigrants, especially those fleeing persecution and seeking asylum in the United States, along with their ‘dirty’ immigration lawyers. The referral of the A-B- case to himself is yet another instance of such xenophobia on full display, where he seeks to deny protection to some of the most vulnerable populations in the world. While we hope this is not the case, Sessions will likely reverse the BIA’s findings on the Matter of A-B- case and declare that victims of domestic violence are no longer eligible for asylum in the United States, thus uprooting Matter of A-R-C-G- and particular social group claims based on domestic violence. Indeed, attempting to reverse the ability of a victim of domestic violence to seek asylum goes beyond being anti-immigrant. It is a full-frontal attack on human rights and undermines international obligations to provide protection to people fleeing persecution.  The respondent in Matter of A-B- will thus need to appeal to a federal appellate court to overrule Sessions.

One can hope that if successful on appeal, Matter of A-B- has the potential to broaden asylum eligibility for victims of domestic violence by returning to the Acosta definition of particular social group, and clarify what Matter of A-R-C-G- left untouched, such as the nexus requirement and the inability or unwillingness of governments to provide victims protection from their abuses.

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Go on over to LexisNexis at the above link for Sophia’s much longer full article.

More and more individuals are publicly “outing” the clear bias, White Nationalism, lifelong xenophobia, and disingenuous misstatements of facts, manipulation of the process, and disrespect for the true rule of law and our Constitutional guarantees of Due Process for all, which should have disqualified Jeff “Gonzo Apocalypto” Sessions from ever becoming the Attorney General and assuming control over the US. Immigration Courts. But, as Sophia cogently points out, by winning cases in the Article III Courts, the “NDPA” can actually turn the tables on Sessions and his restrictionist cronies by putting important principles of immigration law and fairness beyond their biased grasp.

Harm to the most vulnerable among us is harm to all of us! Go New Due Process Army! Due Process Forever!

 

PWS

03-21-18

RETIRED US IMMIGRATION JUDGES FILE AMICUS BRIEF IN SUPPORT OF MINOR RESPONDENT’S RIGHT TO COUNSEL IN 9TH CIRCUIT EN BANC REQUEST – C.J.L.G. v. Sessions, 9th Cir., Filed March 15, 2018 – Read It Here!

FIRST, AND FOREMOST, A BIG THANKS TO THE “REAL HEROES” AT SIMPSON THACHER & BARTLETT LLP, SAN FRANCISCO, AND THEIR OUTSTANDING SUPPORT TEAM, WHO DID ALL THE “HEAVY LIFTING:”

Harrison J. (Buzz) Frahn, Partner

Lee Brand, Associate

HERE’S THE TABLE OF CONTENTS:

TABLE OF CONTENTS Page

IDENTITY AND INTEREST OF AMICI CURIAE ………………………………………….. 1 SUMMARY OF ARGUMENT ……………………………………………………………………… 3 ARGUMENT ………………………………………………………………………………………………. 4

I. Immigration Judges Cannot Independently Develop a Child’s Case to Permit the Fair Adjudication that Due Process Requires ……………………………………..

4 A. Immigration Judges Are Overwhelmed ………………………………………… 5

B. DOJ Policy Mandates Efficiency and Skepticism ………………………….. 7

C. Immigration Law Is Exceedingly Complex …………………………………… 9

D. Counsel Dramatically Improve Outcomes …………………………………… 12

II. The Panel Vastly Overstates the Value of Existing Procedures for Unrepresented Minors ……………………………………………………………………….. 13

A. The Duty to Develop the Record Does Not Obviate the Need for Counsel …………………………………………………………………………………… 13

B. A Parent Does Not Obviate the Need for Counsel ………………………… 17

C. A Pro Bono List Does Not Obviate the Need for Counsel …………….. 18

CONCLUSION ………………………………………………………………………………………….. 19

HERE’S THE “CAST OF CHARACTERS” & THE SUMMARY OF ARGUMENT:

IDENTITY AND INTEREST OF AMICI CURIAE

Amici curiae are former Immigration Judges (IJs) who collectively have over 175 years’ experience adjudicating immigration cases, including thousands of cases involving children. A complete list of amici is as follows:

Sarah M. Burr served as an IJ in New York from 1994 to 2012 and as Assistant Chief Immigration Judge for New York from 2006 to 2011. She currently serves on the board of Immigrant Justice Corps.

Jeffrey S. Chase served as an IJ in New York from 1995 to 2007 and as an advisor at the Board of Immigration Appeals (BIA) from 2007 to 2017. Previously, he chaired the Asylum Reform Task Force of the American Immigration Lawyers Association (AILA) and received AILA’s pro bono award.

George T. Chew served as an IJ in New York from 1995 to 2017. Previously, he served as a trial attorney at the INS.

Cecelia M. Espenoza served as a member of the BIA from 2000 to 2003 and as Senior Associate General Counsel at the Executive Office for Immigration Review (EOIR) from 2003 to 2017.

Noel Ferris served as an IJ in New York from 1994 to 2013 and as an advisor at the BIA from 2013 to 2016. Previously, she led the Immigration Unit of the U.S. Attorney’s Office for the Southern District of New York. 2

John F. Gossart, Jr. served as an IJ from 1982 to 2013. Previously, he served in various positions at the INS. Judge Gossart served as president of the National Association of Immigration Judges, co-authored the National Immigration Court Practice Manual, and received the Attorney General Medal.

Eliza Klein served as an IJ in Miami, Boston, and Chicago from 1994 to 2015.

Lory D. Rosenberg served as a member of the BIA from 1995 to 2002. Previously, she served on the board of AILA and received multiple AILA awards. Judge Rosenberg co-authored the treatise Immigration Law and Crimes.

Susan G. Roy served as an IJ in Newark. Previously, she served as a Staff Attorney at the BIA and in various positions at the INS and its successor Immigration and Customs Enforcement.

Paul W. Schmidt served as chair of the BIA from 1995 to 2001, as a member of the BIA from 2001 to 2003, and as an IJ in Arlington from 2003 to 2016. Previously, he served as acting General Counsel and Deputy General Counsel at the INS.

Polly A. Webber served as an IJ in San Francisco from 1995 to 2016, with details in Tacoma, Port Isabel, Boise, Houston, Atlanta, Philadelphia, and Orlando. Previously, she served a term as National President of AILA. 3

Amici have dedicated their careers to improving the fairness of the immigration system, particularly in the administration of justice to children. In amici’s personal judicial experience, children are incapable of meaningfully representing themselves in this nation’s labyrinthine immigration system. Absent legal representation, IJs cannot independently develop a child’s case to permit the fair adjudication that due process requires. Accordingly, amici have a profound interest in the resolution of this case.1

SUMMARY OF ARGUMENT

Respectfully, the Panel erred in determining that IJs can and will ensure the due process rights of pro se children without the aid of counsel. This error is painfully clear from the vantage point of IJs, who face overburdened and ever-growing dockets, the complexity of immigration law, and, as Department of Justice (DOJ) employees, the constraints of administrative policy. As such, and as demonstrated by the impact of counsel on a child’s likelihood of success in immigration court, IJs lack the necessary time, resources, and power to ensure that unrepresented minors receive meaningful adjudication of their eligibility to remain in this country. 1 No party’s counsel authored this brief in whole or in part; no party, party’s counsel, nor anyone other than amici or their counsel contributed money that was intended to fund preparing or submitting this brief. All parties have consented to the filing of this brief. 4

The Panel further erred in vastly overstating the value to pro se children of certain extant procedural safeguards. While the Panel correctly identifies an IJ’s duty to develop the record, it fails to understand the practical and procedural limits of this duty in the context of an adversarial proceeding, and wrongly transforms it into a cure-all for the otherwise overwhelming lack of due process an unrepresented minor would receive. The Panel similarly holds up the hypothetical availability of pro bono counsel as a potential due process panacea, and Judge Owens’s concurrence suggests the same of the presence of a parent. But these factors also fall far short of remedying the basic unfairness of forcing children to represent themselves in immigration court.

If the Panel’s decision is not revisited, thousands of minors will be forced to navigate the complex immigration system without representation. In many instances, these children will be returned to life-threatening circumstances despite their eligibility to legally remain in this country. It is hard to imagine a question of more exceptional importance.

HERE’S A LINK TO THE COMPLETE BRIEF FOR YOUR ENTERTAINMENT, EDUCATION, AND READING ENJOYMENT:

2018.03.15 CJLG Amicus Brief of IJs

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A special “shout out” of appreciation to my 10 wonderful colleagues who joined in this critically important effort. It’s an honor to work with you and to be a part of this group.

DUE PROCESS FOREVER!

PWS

03-20-18

WASHPOST: MICHAEL E. MILLER & JON GERBERG REPORT — Nation Of Shame — How The Trump Administration Stomps On The Human Rights Of The Most Vulnerable Refugees Every Day!

https://www.washingtonpost.com/local/wheres-mommy-a-family-fled-death-threats-only-to-face-separation-at-the-border/2018/03/18/94e227ea-2675-11e8-874b-d517e912f125_story.html

Miller & Gerberg report:

They had come so far together, almost 3,000 miles across three countries and three borders: a mother with three children, fleeing a gang in El Salvador that had tried to kill her teenage son.

But now, in a frigid Border Patrol facility in Arizona where they were seeking asylum, Silvana Bermudez was told she had to say goodbye.

Her kids were being taken from her.

She handed her sleeping preschooler to her oldest, a 16-year-old with a whisper of a mustache whose life had been baseball and anime until a gun was pointed at his head.

“My love, take care of your little brother,” she told him on Dec. 17.

“Bye, Mommy,” said her 11-year-old daughter, sobbing.

And then her children were gone.

Once a rarity, family separations at the border have soared under President Trump, according to advocacy groups and immigration lawyers.

The administration first put forth the idea a year ago, when John F. Kelly, then secretary of the Department of Homeland Security, said he was considering separating parents from their children as a deterrent to illegal immigration.

Kelly, now the White House chief of staff, quickly walked back his comments after they triggered public outrage, and the controversy ebbed as illegal immigration plunged to historic lows.

But when border apprehensions began to rise again late last year, so, too, did reports of children being stripped from their parents by Border Patrol or Immigration and Customs Enforcement agents.

“Separating children from their parents is unconscionable and contradicts the most basic of American family values,” 71 Democratic lawmakers said in a letter to DHS in February.

The separation of a Congolese mother from her 7-year-old daughter generated headlines and spurred a class-action lawsuit by the American Civil Liberties Union this month.

“We are hearing about hundreds of families,” said Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project.

“DHS does not currently have a policy of separating women and children,” according to an agency statement released this month, but retains the authority to do so in certain circumstances, “particularly to protect a child from potential smuggling and trafficking activities.”

“The truth is that whether they call it a policy or not, they are doing it,” Gelernt said.

For Silvana’s children, the separation was bewildering and frightening.

They had no idea where their mother was. Did their father, who had fled to the United States months earlier, know where they were? They were told they’d join their family in a few days, but days turned into weeks.

Surrounded by strangers in a strange place, they wondered: Would they ever see their parents again?

‘My soul left me’

The family’s crisis began a year ago, when Silvana’s husband, Yulio Bermudez, refused to help MS-13 members in San Salvador escape from police in his taxi. The gang beat him and threatened to kill him.


Silvana Bermudez weeps on March 16 as she watches a video of her children during their separation. (Michael Stravato/For The Washington Post)

Yulio fled north and crossed illegally into Texas, where the 34-year-old claimed asylum and eventually joined relatives.

Then one night in November, Silvana sent her oldest son — Yulio’s stepson — to a pupuseria down the block. As he was walking, the teenager saw a car pull up. A member of MS-13’s rival, the 18th Street gang, peppered the restaurant with gunfire.

The gang member then turned his gun on the teen, who was frozen with fear. But when he pulled the trigger, there was only the click of an empty chamber.

“Must be your lucky day,” the gangster said and sped off.

Silvana, 33, and her son reported the incident to police, also describing Yulio’s run-in with MS-13. Within days, MS-13 members showed up to their door to tell Silvana she’d pay for snitching, she would later tell U.S. immigration officials. And when the 18th Street member saw her in the street, he pointed his finger at her like a gun.

“It was a clear sign that he was on to us and he wanted to hurt me and my child,” she said in immigration court filings.

Relatives drove Silvana and her kids to the border with Guatemala, where they caught the first of many buses on their way to America.

When they arrived at the U.S.-Mexico border several days later, Silvana and her children followed a group of migrants through the night to a tall brick wall.

“When I saw they were jumping a wall, I said, ‘Oh my God, where do I go from here?’ ” Silvana recalled in an interview. But it was too late to turn back, so she ushered her daughter forward and watched as the 11-year-old disappeared over the wall. Then she handed up her 3-year-old.

“My soul left me, because the wall was very high,” she recalled. Out of sight on the other side of the wall, migrants caught the boy using a blanket.

They had been walking through the desert for a few minutes when they were caught and taken to a “hielera,” or ice box, the nickname for the cold, barren Border Patrol facilities along the frontier where detained migrants sleep dozens to a room.

There, Silvana was told she was being separated from her kids because she had tried to enter the country illegally a decade earlier. Border Patrol agents said she would be charged with “illegal reentry” — a felony punishable by up to 20 years in prison — and that her children could not join her in court, she recalled later. (The Washington Post is not naming the children because of the family’s fears about their safety.)

Instead, the kids were loaded onto a van and driven for four hours. As his baby brother slept in his arms, the 16-year-old could hear his sister crying out for their mom. He tried to comfort her, but a metal divider stood between them.

The desert gave way to neighborhoods, and the 11-year-old said she began to believe they were being taken to their dad’s house. When the van finally stopped in front of a large building on the outskirts of Phoenix, she thought: My dad lives in a hotel?

But the building wasn’t a hotel. It was La Hacienda del Sol, one of dozens of shelters around the country for unaccompanied minors. And it was surrounded by a six-foot fence.

Silvana’s sons were given bunk beds in a room with several other boys. The windows were equipped with alarms, which often went off during the night. Each evening, the 16-year-old would lie awake worrying about their fate.

And each morning, the 3-year-old would wake up and ask the same question.

“Where’s Mommy?”

“She had to go to work,” his older brother would say. “She had to go shopping.”


Silvana’s Bermudez’s 3-year-old son kept asking, “Where’s Mommy?” during their long separation. (Michael E Miller/The Washington Post)

The boys had each other, but their sister was by herself in a wing for girls. They only saw her at meals and for a few hours in the evening, when they would play Battleship or Connect 4.

Silvana had given her oldest son a scrap of paper with his stepdad’s phone number on it. But he’d lost it. There was no Internet at the shelter, and when the teen asked to access Facebook to contact Yulio, he said he was told he’d have to make an official request.

Days passed as the children waited for Yulio or Silvana to find them. They took classes, spoke to therapists and received vaccinations. All the while, there was a constant churn of children around them. They would make new friends, only to lose them a few days later, writing their names in notebooks in the hopes of one day re-connecting.

At one point, the 11-year-old’s only roommate was a 4-year-old. Shelter employees asked her to help care for the girl by warming up her bottle and putting her to sleep.

“She was alone,” Silvana’s daughter said. “Without her mom. Without anyone.”

Christmas arrived without word from their parents. Instead of dinner with family and fireworks in the streets of San Salvador, there was pizza and a shelter employee dressed as Santa Claus dispensing winter hats and plastic yo-yos. When Silvana’s daughter began shimmying to Latin music like she had in her dance troupe in El Salvador, she was told to tone it down. And a no-touching rule meant she wasn’t allowed to hug her older brother, even when the clock struck midnight on New Year’s Eve.

The 11-year-old began to despair.

“At first I thought it’d only be a few days before I saw my dad,” she recalled. “But after a month there, I was going crazy, thinking, When? When? When?”

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

Go to the link to read the rest of the article.

This story should be appalling to every American on two levels. First, the unnecessarily cruel policy of separating families, which has frequently been in the news lately.

But, additionally, these folks are refugees who should be granted protection under U.S laws. However, because of unrealistically restrictive politically influenced decisions by the “captive” Board of Immigration Appeals (“BIA”) in the U.S. Department of Justice, and undue deference given to BIA by the Federal Courts under the so-called “Chevron doctrine,” individuals like this basically face a “crap shoot” as to whether protection will in fact be granted.

With a good lawyer, time to prepare and document their case, the right U.S. Immigration Judge, the right BIA “appellate panel,” and the right Court of Appeals panel, protection can be granted under the law in these cases. But, because there are no appointed counsel in Immigration Court cases, most families like this don’t get the top flight legal help that they need to understand the unduly and intentionally overcomplicated law and prepare a winning case. Moreover, too many Immigration Judges at both the trial and appellate levels are biased against or unreceptive to asylum cases from the so-called “Northern Triangle” involving gang violence. Some Circuit Court of Appeals panels care and take the time to carefully review BIA findings; others view their “Ivory Tower Sinecures” as an excuse to merely “rubber stamp” the BIA result without giving it much, if any, apparent thought. And this was happening before the Trump Administration took over.

Now, with the biased, White Nationalist, anti-asylum, restrictionist Jeff Sessions actually in charge of our Immigration Courts it’s basically “open season” on the most vulnerable asylum seekers. Sessions rapidly is moving to make the entire U.S. asylum process basically a “Death Train” with the Immigration Courts and the BIA as mere “whistle stops on the deportation railway.”

Outrageously and shamelessly, Sessions has moved to make it difficult or impossible for individuals to obtain counsel by detaining them in out-of-the-way locations specifically selected for lack of availability of legal services and harsh conditions; separated families to demoralize, punish, and terrorize applicants; cranked up the pressure on already overburdened U.S. Immigration Judges in a system already collapsing under 670,000 pending cases to turn out more mindless removal orders; limited the rights of asylum applicants to full hearings — for all practical purposes a “death sentence” for the majority of those who are unrepresented; and indicated an intention to strip particularly vulnerable women, children, gays, and other asylum applicants similar to this family of the bulk of the already merger substantive legal protections they now possess.

Yes, Sessions’s evil and idiotic plan — which reverses decades of settled administrative precedents — is likely to tie up the Federal Courts for years if not generations. But, not everyone in the position of these families has the time, resources, and know how to navigate the Courts of Appeals to obtain justice. That’s particularly true when folks are held in detention in deliberately substandard conditions.

Because Congressional Republicans have long since abandoned any pretensions to human decency or to care about the Constitutional and statutory rights of migrants, Sessions is running roughshod over the laws, the Constitution, and human rights, and wasting taxpayer money by grossly mismanaging the Immigration Courts, without any meaningful oversight whatsoever.

No, folks like the Bermudez family aren’t “fraudsters,” “terrorists,” “frivolous filers,” “economic refugees,” “job stealers,” “system abusers,” “dangerous criminals,” “gangsters” or any of the other litany of false and derogatory terms that Sessions and his ilk intentionally and disingenuously use to describe refugees and asylum seekers. They are frightened, yet courageous, human beings fighting for their legal rights and their very lives in a system already intentionally and unfairly stacked against them. 

Through articles like this and court cases, we are making a record of the human rights abuses of Sessions and the rest of the Trump Administration. The “New Due Process Army” will continue to fight injustice throughout our country! For those supporting, enabling, or consciously ignoring this Administration’s human rights atrocities, history will be the judge. Harm to the most vulnerable among us is harm to all!

Due Process Forever!

PWS

03-20-19

 

SUPREMES AGREE TO TAKE ANOTHER DETENTION CASE — This One Involves The “When Released” Issue For Mandatory Detention – Nielsen v. Preap, 9th Cir.

http://www.scotusblog.com/case-files/cases/nielsen-v-preap/

SCOTUS BLOG REPORTS

Nielsen v. Preap

Docket No. Op. Below Argument Opinion Vote Author Term
16-1363 9th Cir. TBD TBD TBD TBD OT 2018

Issue: Whether a criminal alien becomes exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.

SCOTUSblog Coverage

Date Proceedings and Orders
Mar 31 2017 Application (16A944) to extend the time to file a petition for a writ of certiorari from April 11, 2017 to May 11, 2017, submitted to Justice Kennedy.
Apr 07 2017 Application (16A944) granted by Justice Kennedy extending the time to file until May 11, 2017.
May 11 2017 Petition for a writ of certiorari filed. (Response due June 12, 2017)
May 18 2017 Order extending time to file response to petition to and including July 12, 2017, for all respondents.
Jun 26 2017 Order further extending time to file response to petition to and including August 11, 2017.
Aug 08 2017 Brief of respondents Mony Preap, et al. in opposition filed.
Aug 23 2017 DISTRIBUTED for Conference of 9/25/2017.
Aug 23 2017 Reply of petitioners Elaine C. Duke, Acting Secretary of Homeland Security, et al. filed. (Distributed)
Feb 27 2018 DISTRIBUTED for Conference of 3/2/2018.
Mar 12 2018 DISTRIBUTED for Conference of 3/16/2018.
*********************************************
Supremes have taken lots of immigration detention cases. The results have been all over the place, but generally more favorable to migrants than to the Government. However, in the last case, Jennings v. Rodriguez, not so much. Stay tuned.
PWS
03=20-18

 

VICTORY ON THE WESTERN FRONT: “Western Brigade Of The NDPA” (A/K/A Pangea Legal Services) wins Key Bond Battle! — “An immigration court should not serve to merely justify an immigrant’s deportation, but rather it should be there to serve justice. . . . We hope Floricel’s case serves as a lesson for all immigration judges across the United States.” 

https://static1.squarespace.com/static/50b1609de4b054abacd5ab6c/t/5aab2aac758d467bf8761e84/1521167020690/Habeas+Order,+Floricel+Liborio+Ramos+v.+Sessions,+2018.03.13.pdf

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On Wednesday, March 14, 2018, Pangea client, Floricel Liborio Ramos, was freed from immigration detention after substantial litigation, multiple appeals, and requests for her release. Today, on her first day free after 11 months, Floricel came out to speak in gratitude for the massive community love and support she received throughout her detention. We hope that her case can set a positive example for judges and courts across the United States.  Read the Federal District Court’s order here.

Community members from Faith in Action, RISE, California Immigrant Youth Justice Alliance, the Immigrant Liberation Movement, and others out in support of Floricel’s hearing at the Federal District Court in Northern California (San Francisco, March 13, 2017)

 

Federal District Court’s Order Freeing Floricel Liborio Should Serve as a Lesson to All Immigration Judges Across the U.S.

 IMMIGRANT RIGHTS ACTIVISTS CELEBRATE THE MOMENTOUS REUNITING OF FLORICEL LIBORIO RAMOS WITH HER FAMILY AFTER ORDER BY UNITED STATES DISTRICT COURT JUDGE JON S. TIGAR REQUIRING HER RELEASE. THE ORDER SHOULD SERVE AS A LESSON TO IMMIGRATION JUDGES THAT THEY CANNOT DENY BOND TO IMMIGRANTS SIMPLY BECAUSE OF A DUI.

WHAT: Press conference in celebration of Floricel’s returning home to her children after over 11 months in immigration custody

WHERE: Phillip Burton Federal Building, 450 Golden Gate Ave., San Francisco, CA 94111

WHEN: 11:30am on Thursday, March 15, 2018

WHO: Floricel, immigrant rights activists, faith leaders and other supporters

San Francisco, CA- Immigrant rights activists hold press conference at SF Federal District Court Building welcoming Floricel Liborio Ramos after she was released on Wednesday following a District Court order granting her immediate release from the West County Detention Facility.  Ms. Liborio Ramos detention comes to a celebrated closure after District Court Judge Jon S. Tigar ruled that the Government failed to meet its burden to demonstrate by clear and convincing evidence that Ms. Liborio Ramos poses a threat to the community.

Judge Tigar found Immigration Judge Burch had erred when she unfairly ruled that Floricel was a danger to the community given her previous DUIs, “The IJ’s decision not to release Liborio Ramos rests firmly on Liborio Ramos’s two DUI convictions.[…] while an immigrant’s criminal history is relevant, ‘criminal history alone will not always be sufficient to justify denial of bond on the basis of dangerousness.’”

“[T]wo non-violent [DUI] misdemeanors in which no one was injured, in light of the other facts in this record, simply do not justify indefinite detention,” Judge Tigar’s ruling continued. In a few days, Ms. Liborio Ramos would have been detained for nearly a year, more than the longest sentence she could have served under California law for a misdemeanor DUI.

“We’re seeing undocumented immigrants punished twice by the immigration courts,” claimed Jehan Laner Romero, Ms. Liborio Ramos’ attorney at Pangea Legal Services. “This was the case with Floricel, who was complying with the criminal court order for her prior DUI conviction.”

Community supporters of Ms. Liborio have much to celebrate after 8 months of arduous efforts to support her case by packing the courtroom during her hearings, holding rallies and uplifting their support for Floricel. Immigration Judge Valerie A. Burch had denied her bond on two different occasions, even though the Government failed to sustain its burden to prove Ms. Liborio Ramos was a danger to the community. To many, this only highlights the unjust practices of some immigration courts — and the importance of higher courts and community members to hold immigration judges accountable. “An immigration court should not serve to merely justify an immigrant’s deportation, but rather it should be there to serve justice,” said Blanca Vazquez, one of the organizers supporting Ms. Liborio Ramos’ case with the Immigrant Liberation Movement. “We hope Floricel’s case serves as a lesson for all immigration judges across the United States.” 

Floricel speaks at press conference before the court that ordered her release (San Francisco, March 15, 2018)

 

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ROBIN UREVICH TAKES US INSIDE THE DEADLY “NEW AMERICAN GULAG” OPERATED BY THE DHS — “Civil Detainees” Are Dying At A Rate Of About One Per Month In The Hands Of Our Government — Many Think Some Of These Deaths Were Preventable!

The fabulous investigative reporter Robin Urevich with continuing coverage from Capitol & Main’s “Deadly Detention Series:”

https://capitalandmain.com/deadly-detention-self-portrait-of-a-tragedy-0314

“Deadly Detention: Self-Portrait of a Tragedy

Co-published by International Business Times
The missteps and errors of ICE and its contractors have led to concerns about the safety of immigrant detainees with mental health issues.

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Robin Urevich

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A suicidal detainee never got the mental health care he needed and was placed in a cell that contained a known suicide hazard,
a ceiling sprinkler head.


Co-published by International Business Times

Sometime after midnight in mid-May of 2017, 27-year old JeanCarlo Jimenez Joseph fashioned a noose from a bed sheet and hanged himself in his solitary confinement cell at the Stewart Detention Center, located in the pine woods of southwest Georgia. Stewart’s low-slung complex lies behind two tall chain-linked fences, each crowned with huge spirals of glinting barbed wire. Beginning in 2006, the facility began to house undocumented immigrants detained by U.S. Immigration and Customs Enforcement.

Jimenez’s fall sounded like a sledgehammer blow, said 20-year-old Abel Ramirez Blanco, who was also in segregation at Stewart that night. Another detainee, Miguel Montilla, had peered through the metal grate on his door and saw guard Freddy Wims frantically knocking at Jimenez’s cell door. “He got on the walkie-talkie and started screaming,” Montilla said.

“I looked in the door and I didn’t see him,” Wims would later remember. Wims scanned the small cell until, he said, “I looked over in the corner by the commode and he was hanging there by the sheet.”

Within hours, Georgia Bureau of Investigation agents descended on Stewart, about 140 miles south of Atlanta, to find out if foul play had been involved in Jimenez’s death. It wasn’t. But the investigation, which generated audio interviews of Stewart staff and detainees, along with recordings of Jimenez’s personal phone calls and official documents, revealed that CoreCivic, the for-profit prison company that operates Stewart for ICE, and ICE Health Services Corps, which provides health care at Stewart, cut corners and skirted federal detention rules. The organizations’ missteps and errors have led to concerns about the safety of immigrant detainees with mental health issues.

Also Read: “Hell in the Middle of a Pine Forest”

The probe disclosed that Jimenez repeatedly displayed suicidal behavior, but never got the mental health care he needed. He was also placed in a cell that contained a known suicide hazard, a ceiling sprinkler head, upon which he affixed his makeshift noose. Freddy Wims was assigned to check Jimenez’s cell every half hour, but didn’t do so. Instead, he falsified his logs to make it appear he had, and he was later fired. Stewart’s warden, Bill Spivey, retired after Jimenez’s death; a CoreCivic spokesman told The Atlanta Journal-Constitution that the two events were unrelated. Spivey couldn’t be reached for comment for this article.


Psychiatrist: Placing a suicidal prisoner in solitary confinement is like placing someone with bad asthma in a burning building.


CoreCivic’s spokesman, Jonathan Burns, didn’t respond to questions about Jimenez’s death and detention. Instead, he wrote in an email, “CoreCivic is deeply committed to providing a safe, humane and appropriate environment for those entrusted to our care, while also delivering cost-effective solutions to the challenges our government partners face.” ICE spokeswoman Tamara Spicer wrote in an email that she couldn’t answer questions about the case because it is “still undergoing a comprehensive review that has not been released.”

Jimenez had been in solitary for 19 days at the time of his death — punishment for what his sister would tell investigators was an earlier suicide attempt. He had leapt from a second-floor walkway in his dormitory, and later repeatedly told detention center personnel, “I am Julius Caesar for real.” He was physically unhurt, but Stewart staff were aware he was suffering from mental illness and had a history of suicide attempts, documents show. Still, after his jump, Jimenez saw a nurse who quickly cleared him for placement in a 13-by-7-foot segregation cell alone for 23 hours a day. After that, his suffering seemed to intensify.

“Placing a suicidal prisoner in segregation is like placing someone with bad asthma in a burning building,” Terry Kupers, a Bay Area psychiatrist who has studied solitary confinement and who reviewed some of the documents in Jimenez’s case, noted in an email. He added that half of successful prison suicides occur among the three to eight percent of prisoners in solitary confinement.

Jimenez wasn’t put on suicide watch, or even ordered monitored more frequently than the normal half-hour checks. He continued to display alarming behavior. Montilla told the GBI that he and a guard had heard Jimenez screaming and banging on his cell wall two weeks before his death. “Man, I’m suffering from psychosis and I hear voices talking to me and they’re bothering the shit out of me,” Montilla recalled Jimenez saying.

Registered Nurse Shuntelle Anderson told a GBI agent that some five days before his death, she saw Jimenez banging the metal mirror in his cell. He told her, “These fucking voices, they won’t leave me the fuck alone …They’re telling me to commit suicide…but I don’t want to harm myself.”


See Interactive Map of U.S. Detention Deaths


Jimenez asked Anderson for a higher dose of the anti-psychotic drug Risperidone, which he’d previously been prescribed at a North Carolina mental health facility. It was at least the second such request he’d made at Stewart — where he received only a fourth of his normal dosage.

Anderson told investigators she left a note for the facility’s behavioral health counselor, Kimberly Calvery, saying that Jimenez wanted more medication. Calvery arranged for him to speak with the detention center’s psychiatrist but Jimenez didn’t live long enough to keep the appointment, which was scheduled later in the morning he died. Calvery later told investigators that Jimenez “never showed any suicidal tendencies at the Stewart Detention Center.”


Homeland Security reported that at the Stewart Detention Center solitary confinement, which  isn’t supposed to be punitive, appeared to be sometimes used to punish trivial offenses.

 


“He was such a good kid,” Anderson told investigators in the hours after Jimenez’s death. Earlier that night, she’d given him medication and he’d shared a self-portrait he’d been working on. “It was very nice, very detailed and last night, when I went down there, he said, ‘Look, I finished it.’” Anderson said. Guards and detainees also described Jimenez as mostly lucid and friendly, despite his occasional outbursts, quirky comments and a propensity to call himself Julius Caesar.

In a December 2017 report, “Concerns about ICE Detainee Treatment and Care at Detention Facilities,” the Homeland Security inspector general wrote that at Stewart and three other facilities (which are operated by county governments), “We identified problems that undermine the protection of detainees’ rights, their humane treatment, and the provision of a safe and healthy environment.” The IG’s staff wrote that immigration detention isn’t supposed to be punitive, and noted that at three of the facilities, including Stewart, segregation or solitary confinement appeared to be sometimes used to punish trivial offenses. At Stewart, the inspectors also found that showers were moldy and lacked cold water in some cases, and some bathrooms had no hot water, and that medical care, even for painful conditions, had been delayed for detainees.


Since 2003, 179 immigrant detainees have died in custody, many from preventable causes, like pneumonia and alcohol withdrawal.


Additionally, despite Jimenez’s nonviolent crimes, he was classified as a high-risk detainee. He had been convicted of marijuana possession, petty theft and an assault charge that arose from an unwanted hug he gave a woman in Raleigh, North Carolina. He was issued a red jumpsuit to signal his danger level and housed with others who were similarly classified. The inspector general’s report flagged misclassification of detainees as a problem at Stewart. While there, Jimenez wavered between wanting to wage a court battle to stay in the U.S., and paying for his own return to Panama through a process called voluntary departure. But, before he could take the first steps to fight his case, he ran into roadblocks, including the failure of the detention center to send a set of documents that Jimenez’s attorney had requested.

 Since 2003, 179 immigrant detainees have died in custody, many from preventable causes, like pneumonia and alcohol withdrawal. Human rights groups point to dozens of others who endure painful medical conditions and must wait for care or never receive it at all.

Like Jimenez, they’ve been dropped into a ballooning system whose rapid growth and diffuse nature would make it hard for the government to closely monitor, even if it attempted to do so.

ICE had fewer than 7,500 detention beds in 1995. Now the system is 500 percent bigger, with nearly 40,000 beds nationwide in 200 facilities that operate under three different sets of government standards. The Trump administration plans to add 12,000 more beds this year alone even as vulnerable detainees currently fall through the cracks.


JeanCarlo Jimenez completed his self-portrait and tied knots in a white bed sheet to shorten it. A guard  observed him jumping rope with it.


Federal officials largely maintain a hands-off approach, leaving it to private prison companies like CoreCivic and the GEO Group to run day-to-day affairs. The companies tend to run them like prisons and not as the civil detention facilities that the law says they are.

Photo: Robin Urevich

“Contractors operating facilities for ICE typically have backgrounds in corrections, and this shapes how they administer their ICE detention facilities,” said Kevin Landy, who led the Obama administration’s immigration detention reform efforts as the head of ICE’s Office of Detention Policy and Planning.

“Problems such as medical care, the way disciplinary proceedings are administered, the lack of sensitivity to detainee needs, and conditions generally reflect the problems writ large in our correctional system,” Landy said.

At Stewart, these problems have been particularly acute, said attorney Azadeh Shahshahani, whose group, Project South, monitors conditions at Stewart. “The facility needs to be shut down. It’s beyond redemption.”

Jimenez had come to the United States from Panama when he was 10, graduated from high school in Kansas, and considered himself American, even though he lived in the U.S. without documents most of his life. Public records show he even registered to vote in North Carolina — as a Republican.

“When I heard what happened, it blew my mind,” said Matt Schott, who was about four years older than Jean Jimenez and now works for an oil and gas exploration company in Kansas. Jimenez was 19 when he and his sister, Karina Kelly, came to Matt’s church, and they became friends 12 years ago. “He brought a lot of laughter to everybody,” Schott said, recalling Jean’s huge open smile. In photos, he’s beaming, showing a mouthful of teeth and wearing a big afro.

“Jean would just show up at the house. We’d play Christian worship music, and be up till 3 or 4 in the morning. We would get a bunch of food and go to a park,” Schott remembered. A video on Jean’s Facebook page shows him executing expert dance moves as friends play instruments outdoors.

Schott said when they began to share more of their lives, Jean tearfully told Matt he was undocumented and had to hide in plain sight. “He had big dreams. He wanted to start an architecture firm and had already named it — Eyes Design.”

Except for a few Facebook messages they exchanged, Schott lost track of Jimenez after the latter moved to North Carolina with his mother and stepfather about eight years ago. While there, Jimenez had obtained protection from deportation through the Obama administration’s DACA or Deferred Action for Childhood Arrivals program.

But, in the six months before he was detained, his mental health declined. He was hospitalized twice for psychotic episodes and lost his DACA status. Jimenez also had the misfortune of being arrested just as President Trump took office. The new administration had declared that anyone in the country illegally was fair game for immigration enforcement, even if they’d committed no crime or if their crimes were as minor as Jimenez’s. He was transferred to ICE custody.

For Jimenez the prospect of deportation to Panama, a country he had left behind as a child, was scary, his sister Karina wrote in a chronology of conversations with her brother that she sent to the family’s attorney. “Game is over,” Kelly recalled Jimenez saying. But before being shipped to Panama, he would be held at Stewart, arguably one of the most troubled detention centers in the country.

About six weeks into his detention a fellow detainee punched Jimenez in the groin and busted his lip. Jimenez was punished with his first stint in solitary — even though he was the victim in the attack and the detention center’s camera shows he didn’t fight back.

“I’m tired of this life,” Jimenez told his stepfather Gilberto Rodriguez in a recorded phone call soon after, his voice sounding uncharacteristically weary.

“Don’t give up, you can start over,” Rodriguez counseled. “In God’s name you’re getting out…we have to do this together.”

Just two days before his death, Jimenez’s mother, Nerina Joseph, and Rodriguez made the trip from Raleigh, North Carolina, to visit him. “She reported that he was so happy to see them, and they had the best 60 minutes a mother in her shoes could ever ask for,” Karina Kelly wrote.

Still, Jimenez’s mother was concerned about his well-being, and stopped by El Refugio, a hospitality center in Lumpkin, Georgia, where detention center visitors can find a meal and place to sleep. El Refugio volunteers also visit detainees, and Joseph requested that someone check on Jimenez. A volunteer attempted to see him the next day, but was turned away because Stewart personnel mistakenly said Jimenez couldn’t receive visitors. Records show there were no such restrictions on Jimenez’s visits.

Later that night, Jimenez completed his self-portrait, and tied knots in a white bed sheet to shorten it. A guard even observed him jumping rope with the sheet a few hours before he died and asked him about it. Jimenez replied he was staying in shape and the guard took no further action.

Ten days after Jimenez’s suicide, a fellow detainee, Abel Ramirez Blanco, told GBI investigator Justin Lowthorpe that he had listened in his cell as guards, nurses and finally paramedics labored over Jimenez’s lifeless body, and an automatic defibrillator blared robotic CPR instructions.

A videotape of the scene inside Jimenez’s cell shows nurses Shuntelle Anderson and Davis English desperately trying to resuscitate Jimenez. Anderson yells for guards to call 911. “I’m calling an ambulance,” a voice answers. Records from a regional 911 center show paramedics were called six minutes after Wims radioed a medical emergency, and arrived in Jimenez’s cell some seven minutes after they were called.

ICE inspectors haven’t yet weighed in on Jimenez’s case. But in studying a 2013 suicide, ICE reviewers criticized staff at a Pennsylvania facility for waiting four minutes to call 911, writing that the Mayo Clinic and the American Heart Association recommend calling 911 before beginning CPR.

Jimenez was eventually taken to a hospital where he was pronounced dead less than 15 minutes after his arrival.

Red caution tape was placed in the shape of a large X on Jimenez’s cell door. Inside the cell, steel shelves held his art supplies, his artwork and a plastic instant-noodle soup bowl with some of the broth still in it. On his wall Jimenez had written, “The grave cometh. Halleluyah.”

A death like Jimenez’s “could have happened to me,” Ramirez told GBI agent Lowthorpe, because of his own anxiety and depression. Ramirez said Stewart staff didn’t help him when he reported those symptoms. Instead, he was thrown in segregation where he witnessed Jimenez’s suicide, and began to feel even more desperate.

Matt Schott struggled to reconcile his friend’s death with his Christian faith. “People believe you commit suicide and you go to hell,” Schott said. “I can’t believe that about Jean because I knew who he really was. I love the guy and I believe one day I’ll see him again.”

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

https://capitalandmain.com/deadly-detention-hell-middle-pine-forest-0314

“DEADLY DETENTION

Deadly Detention: Hell in the Middle of a Pine Forest

Immigrant detainees represent more than $38 million a year for CoreCivic, a for-profit prison company that is the largest employer in one of Georgia’s poorest counties.

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Robin Urevich

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Former ICE Guard: “They’re always putting them in the hole — in segregation. And they manhandle people.”


Deep in a Georgia pine forest, two hours south of Atlanta, early morning mist rises in wisps over the Stewart Detention Center, a facility run by CoreCivic, one of the nation’s largest for-profit prison companies. The bucolic scene clashes with the tall, barbed wire-topped chain-link fences surrounding the center, and the echoing shouts, crackling radios and slamming doors inside the walls. Technically, the roughly 1,700 men here aren’t prisoners, but civil detainees being held for U.S. Immigration and Customs Enforcement as they plead their cases to remain in the United States, or as the government prepares their deportations.

Also Read: “Self-Portrait of a Tragedy”

The detainees represent more than $38 million a year for CoreCivic — the government pays the company nearly $62 a day per man. It is the largest employer in Stewart County, one of Georgia’s poorest.

Immigrant rights groups have charged that the conditions here are not only indistinguishable from those in prison, they are downright abusive. In fact, a December 2017 Homeland Security Inspector General’s report expressed concerns about human rights abuses and, last month, Joseph Romero, a retired ICE officer who served as a guard, told Capital & Main that he resigned a supervisor job at Stewart in 2016 because he didn’t like the way people were treated.


Guatemalan Asylum Seeker: “It is hell in here. I wouldn’t even recommend it to a person I hate.”


“They’re always putting them in the hole — in segregation,” Romero said. “And they manhandle people. They think they can take care of their problems like that.” Romero noted that few officers speak Spanish, so there is little understanding or communication between guards and detainees.

JeanCarlo Jimenez Joseph’s suicide by hanging while in solitary confinement last May and 33-year-old Cuban national Yulio Castro Garrido’s death from pneumonia last December have brought these concerns to the fore.

Jimenez was mentally ill and had been in solitary for 19 days when he died — four days longer than the United Nations Rapporteur on Torture considers torture.


See Interactive Map of U.S. Detention Deaths


“It is hell in here. I wouldn’t even recommend it to a person I hate,” said Wilhen Hill Barrientos, a 23-year-old Guatemalan asylum seeker who has been in detention — at Stewart, the Atlanta Detention Center and at the Irwin Detention Center in Ocilla, Georgia — since 2015.

In addition to many other abuses that he alleges — rotten food, forced work and abuse by guards — Hill has also served 60 days in isolation. He said it was retaliation for a grievance he’d filed. He was placed in solitary, ostensibly because he’d been exposed to chickenpox; however, other detainees who, like Hill, reported they’d had the disease as children were released.


CoreCivic documents show that detainees were in isolation for such offenses as “horse playing.”


ICE detention standards specify that isolation is to be used only to punish the three most serious categories of rule violations, and only “when alternative dispositions may inadequately regulate the detainee’s behavior.”

But CoreCivic documents released after Jimenez’s suicide show that on the day that he died, detainees were in isolation for such offenses as “horse playing,” “refusal to obey staff” or “conduct that disrupts.” Four men had been in solitary for more than 60 days. One of them, Sylvester Smith, who was deported to Sierra Leone at the end of 2017, served at least four months in isolation. His charges were variously listed as “being found guilty of a combination of th…” (the word is cut off on CoreCivic’s restricted housing roster) and “failure to obey.”

After Jimenez died, however, then-warden Bill Spivey held weekly meetings aimed at reducing the number of people in solitary. By October 2017, documents show, there were just 10 people in isolation, but when Spivey retired and an assistant warden took over, the census more than doubled. CoreCivic spokesman Jonathan Burns didn’t respond to emailed questions about the current number of men in segregation.

Joseph Romero, the former ICE officer who worked at Stewart, is tall and graying with a full mustache and beard. He is proud of his ICE career but thinks the for-profit detention model the government has adopted has to go.

“They should go back and have these detention centers run by Immigration, not by private contractors,” Romero said. ICE officers treat people better, because they value their careers, Romero said. “You’re making a lot more money, you have retirement and better benefits. After 20 years, you can retire. At CCA [now known as CoreCivic], you have nothing.”


A detainee says guards call detainees “wetbacks” and “dogs,” and have greeted each other with Nazi salutes.


What’s more, Romero said, Stewart was understaffed: It wasn’t uncommon for officers to work double shifts and return to work eight hours later. “That’s why they’re so irritated,” he said. Equipment was also substandard, Romero claimed. He describes gun holsters that lack the safety snap that prevents a gun from being snatched by a thief or would-be attacker.

Romero said he wanted to try to change conditions for the better at Stewart, but found resistance from a tight, insular group that ran the place, and realized he could do little. Then he witnessed an incident that convinced him it was time to leave.

He saw two guards walking a handcuffed detainee to segregation. One of them “got in the guy’s face,” Romero recalled, and the detainee head-butted the guard. “The next thing you know the guard starting punching on the guy,” Romero said. He later watched a video of the beating with his co-workers, and Romero was taken aback by their reaction. “They said he asked for it, and I’m like wait a sec… If you’re in handcuffs why would I hit you? I have total control of you.”

The guard who threw the punch got fired, and a training session followed. But Romero doesn’t know if it had any effect because he left shortly thereafter.

Hill Barrientos said from his vantage point as a detainee, Stewart is worse than it was in 2016 when Romero was there. He believes Trump’s election signaled to detention officers that they could disrespect detainees with impunity.

Guards call detainees “wetbacks” and “dogs,” Hill Barrientos charged. He said that he’s even seen white detention officers greet each other with a Nazi salute. Health care is hard for detainees to obtain, Hill Barrientos said. He worked in the kitchen with Castro Garrido, who, he said, grew increasingly sicker because he was required to work instead of being allowed time to seek medical attention. ICE initially reported in its news release about Castro’s death that he had refused medical attention, an account that was widely reported. But the agency later corrected its news release to say that Castro’s case “was resistant to some forms of medical intervention.”

Hill’s lawyer, Glenn Fogle, thinks poor detention conditions are part of the government’s aggressive deportation strategy. “That’s the whole idea — to hold people in those horrible places to make them give up,” Fogle said.

Hill said he cannot give up — he would be killed by gang members who had threatened and extorted him if he is returned to Guatemala. His case is virtually identical to that of his two brothers and a sister, all of whom have already been granted asylum, Fogle said. Still, his case has been denied. Judges at Stewart grant asylum in few cases, so Hill Barrientos now pins his hopes on the Bureau of Immigration Appeals, which is currently considering his case.

“The people that give me strength are my mother and my daughter,” Hill Barrientos said. “So I keep fighting.”

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Please hit the above links to get the great graphics accompanying Robin’s articles at Capital & Main! Many thanks, Robin, for your courageous and timely reporting!

This is the “New American Gulag” (“NAG”)!

It certainly had its antecedents in prior Administrations of both political parties. But, the Trump/Sessions/Miller/Kelly/Nielsen/Homan crew have taken it to new depths!

What kind of country does this to individuals whose only “crime” is to want to exercise their statutory and constitutional rights to a fair hearing and a fair adjudication of claims that their lives and safety will be endangered if returned to their native countries?

Is the NAG really how we want to be remembered by our children and grandchildren? If not, get out there and vote for politicians who have the backbone and moral courage to end this kind of Neo-Nazi, Neo-Stalinist approach to human rights! And, send those who have helped fund and promote these affronts to American values into permanent retirement. 

Also, don’t forget this, in part, is the disgraceful result of the Supreme Court majority’s failure to step up and defend our Constitution in Jennings v. Rodriguez. What if it were their relatives dying in the NAG? Time for judges at all levels of our justice system to get out of the “Ivory Tower” and start applying the law in the enlightened HUMAN terms that the Founding Fathers might have envisioned. 

PWS

03-16-18