Litigation – Page 105 – immigrationcourtside.com

DECONSTRUCTION OF U.S. IMMIGRATION COURTS CONTINUES: IJ Benchbook Latest Casualty — No Time For Law!

Dan Kowalski at LexisNexis and Heidi Altman at the Heartland Alliance sent in the following:

Heidi Altman, Director of Policy
National Immigrant Justice Center
A HEARTLAND ALLIANCE Program
Washington, DC Office
Tel: 312-718-5021
Email: haltman@heartlandalliance.org
From: Daniel Kowalski <dkowalski@allott.com<mailto:dkowalski@allott.com>>
Date: July 19, 2017 at 6:01:16 PM EDT
To: “immprof@lists.ucla.edu<mailto:immprof@lists.ucla.edu>” <immprof@lists.ucla.edu<mailto:immprof@lists.ucla.edu>>
Subject: [immprof] EOIR IJ Benchbook No Longer In Use (July 19, 2017) – AILA

EOIR IJ Benchbook No Longer In Use (July 19, 2017)
“EOIR confirmed that the EOIR Immigration Judge (IJ) Benchbook has been removed from EOIR’s webpage and is no longer being utilized. According to the agency, use of the IJ Benchbook was discontinued due to challenges in keeping the publication up to date with current case law.
Please note that AILALink<http://ailalink.aila.org/> now contains a copy of the IJ Benchbook as it appeared on the EOIR website as of April 27, 2017.”

Daniel M. Kowalski
Editor-in-Chief
Bender’s Immigration Bulletin (LexisNexis)

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Even for EOIR this is extreme BS. No time to keep up on the law? Just like no time for Immigration Judge training.

Just another degradation in due process, uniformity, and training. Ridiculous!

PWS

07-20-17

IN IMMIGRATION CIRCLES, THE ATLANTA COURT IS KNOWN AS “WHERE DUE PROCESS GOES TO DIE” –WILL IT BE THE “NEW NORM?” — The Asylumist, Jason Dzubow, Says “We’re All In Atlanta Now!”

We’re All in Atlanta Now
by JASON DZUBOW on JULY 19, 2017
Atlanta, Georgia is generally considered to have the most difficult Immigration Court in the country. Now, the Trump Administration has tapped attorneys from the Atlanta Office of the Chief Counsel (the “prosecutors” in Immigration Court) to take charge of the Immigration Courts and the “prosecutors” offices for the entire United States. A third Atlanta attorney has been appointed to a key policy-making position at the Department of Homeland Security (“DHS”).

If you’re feeling down about Georgia exports, here’s something to love.
Before we get to those attorneys, let’s first talk about Atlanta. The average grant rate for asylum cases across the U.S. is just under 50%. The asylum grant rate at the Atlanta Immigration Court is less than 9%. Also, immigrant advocates have frequently complained about due process issues and the treatment of litigants in the Atlanta court.

It’s true that the Office of the Chief Counsel (“OCC”) and the Immigration Court are independent of each other, but I think we can safely glean a few things about the Atlanta OCC from what we know of the Court.

For one, since Immigration Judges will usually grant cases where the parties agree on relief, it seems likely that OCC attorneys in Atlanta rarely determine that a case should be approved for asylum. Of course, we do not know about the quality of the asylum cases in Atlanta—maybe they are unusually weak (a real possibility since sophisticated litigants will avoid Atlanta due to its low grant rate). But it would be strange indeed if almost no cases there meet the relatively low threshold required for asylum. The fact that the OCC is not stipulating to asylum on occasion indicates that they are taking a very hard line against such cases (this contrasts with many other jurisdictions, where the local OCCs regularly conclude that applicants qualify for asylum). The job of OCC attorneys is not merely to deport as many people as possible; they are supposed to do justice. This means agreeing to relief where it is appropriate. The low grant rate in Atlanta may indicate that OCC lawyers there are prioritizing “winning” over doing justice, and ideology above the law—all worrying signs as these attorneys move into national leadership positions.

Second, whether the asylum cases in Atlanta are strong or weak, I suspect that the high denial rate there colors the view of the OCC attorneys. If those attorneys believe that over 90% of asylum seekers are unworthy of relief—either because they do not meet the requirements for asylum or because they are lying about their claims—it seems likely that these attorneys will develop a jaundiced view of such cases, and maybe of immigrants in general.

Finally, there exists at least one instance of the Atlanta OCC taking an overly-aggressive position in a case involving alleged racial profiling by ICE (if OCC attorneys are the prosecutors, ICE officers are the police). In that case, an Immigration Judge in Atlanta ordered the OCC to produce an ICE agent accused of racial profiling. The OCC refused to produce the agent, and ultimately, the Judge ruled that the agents had engaged in “egregious” racial profiling and the OCC attorneys had committed “willful misconduct” by refusing to bring the agents to court. While the three OCC attorneys at issue here had left the Atlanta office by the time of this case, the OCC’s position again points to an agency willing to put “winning” ahead of justice.

With this background in mind, let’s turn to the alumnus of the Atlanta OCC who will be taking charge of our immigration system.

Tracy Short – ICE Principal Legal Advisor: Tracy Short is the new Principal Legal Advisor for ICE. In that capacity, he “oversees the Office of the Principal Legal Advisor, the largest legal program within the Department of Homeland Security, comprised of more than 1,100 attorneys and 300 support professionals throughout the United States.” These are the attorneys who serve as “prosecutors” in Immigration Court, among their other tasks. According to his ICE biography, “From 2009 to 2015, Mr. Short served as the Deputy Chief Counsel in the ICE Atlanta Office of Chief Counsel.” Mr. Short also served on the committee staff for Congressman Bob Goodlatte, the staunch anti-immigration representative from Virginia.

While Mr. Short has impressive litigation experience, he has almost no management experience (as Deputy Chief Counsel, he might have supervised a few dozen people, at most). But now, under the Trump Administration, he is overseeing more than 1,400 lawyers and staff. Like his fellow veterans of the Atlanta OCC, I suspect he was chosen more for his ideological views than for his management background.

James McHenry – Acting Director of the Executive Office for Immigration Review (“EOIR”): In a move characterized as “unusual” by retired Immigration Judge and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt, the Attorney General has appointed James McHenry as the new Acting Director of EOIR, the office that oversees the nation’s immigration court system. Judge Schmidt notes that, “While Judge McHenry has stellar academic and professional credentials, and is an ‘EOIR vet,’ having served as a Judicial Law Clerk/Attorney Adviser in the Buffalo and Baltimore Immigration Courts, it is unusual in my experience for the acting head of EOIR to come from outside the ranks of current or former members of the Senior Executive Service, since it is a major executive job within the DOJ.” In other words, while Judge McHenry has had significant legal experience, he has very little leadership experience, especially at EOIR.

Indeed, Judge Schmidt’s characterization of Judge McHenry as an “EOIR vet” seems overly generous. He served as a Judicial Law Clerk, which is basically a one or two year gig for new law school graduates working as an assistant to Immigration Judges (I myself was a JLC back in the prediluvian era) and he has a few months experience as an Administrative Law Judge for the Office of Chief Administrative Hearing Officer, an office at EOIR that reviews certain employment cases involving immigrants.

Like Mr. Short, Judge McHenry worked for the Atlanta OCC. He served as an Assistant Chief Counsel for ICE in that office from 2005 to 2010.

Whether Judge McHenry’s “acting” role as Director of EOIR will become permanent, we do not know. But I agree with Judge Schmidt that it is highly unusual for a person with such limited management experience to be picked to head our country’s immigration court system, with hundreds of judges and support personnel to oversee.

Gene Hamilton – Counsel to DHS Secretary: Gene Hamilton was appointed as counsel to DHS Secretary John Kelly. Along with Stephen Miller, he was apparently a key architect of the Trump Administration’s travel ban against people from several majority-Muslim countries. He also served as a trial attorney at the Atlanta OCC in about 2014 and 2015, though I could not verify his length of service there. In addition, Mr. Hamilton served on the staff of Senator Jefferson Beauregard Sessions before he was appointed Attorney General. Mr. Sessions, of course, is well known for his regressive views on immigration, civil rights, and just about everything else.

So there you have it. Three veterans of the Atlanta OCC who together will be exercising significant control over our country’s immigration system. Given their backgrounds and experience (or lack thereof), it’s difficult to be optimistic about how that system will fare under their watch.

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Somewhat predictable for an Administration that has little or no regard for Constitutional Due Process. That’s why folks need to join the “New Due Process Army” and carry on the fight until better times arrive (and they eventually will)!

As always, thanks to Jason for his incisive analysis!

PWS

07-20-17

NEWSDAY: Judge Dana Leigh Marks Says Independence Is Only Solution For Beleaguered U.S. Immigration Courts! — Years of Political Interference and Mismanagement By Justice Department Have Taken A Toll On Due Process!

2017-7-17-Newsday-DLM-Immigration-Courts-Need-Independence

Judge Marks writes:

“Immigration courts nationwide have a backlog of more than 598,900 cases. In some of our nation’s busiest courts, such cases remain pending more than 500 days. Just more than 300 immigration judges nationwide grapple with this backlog, which increased by 100,000 in the last year alone.

Even more troubling, as the caseload rises, the rate of completing cases has been dropping. And while there are several reasons for this, our courts have been left in the lurch by ineffective management that has failed to provide adequate support staff and strategic planning.

In the past five years, immigration judges have decided more than 1,329,950 cases, but we can do even better. The key is assuring judicial independence and protection from political influences. Removing the immigration courts from the Department of Justice, where the courts are run by politically appointed law enforcement managers subject to the pressures of politics, and placing them in an independent court structure, would insulate them from those pressures and allow them to concentrate on completing cases in a fair way.

When cases are conducted fairly, there is less likelihood of appeal or political attack. More skilled court management, provided by experienced court administrators, rather than a law enforcement agency with priorities other than fairness and efficiency, would greatly enhance our ability to complete the tasks. For example, cases would not be docketed to make political statements or serve as a show of force by our government. Rather, they would be on the calendar based on due process needs. Judges need to be allowed to apply their expertise to make their dockets run smoothly and fairly.

Restructuring immigration courts would be a win-win, a solution that would ease the pressures on an overwhelmed system and facilitate timely and fair decisions. Structural reform would go a long way toward assuring we are able to answer the challenges that surely will continue.

Dana Leigh Marks is an immigration judge in San Francisco and president of the National Association of Immigration Judges. The views expressed here are solely those of the author in consultation with the NAIJ.”

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Read Judge Marks’s full, article, which has an excellent succinct description of the important work performed by U.S. Immigration Judges, at the above link.

I agree totally with my good friend and former colleague Dana that an independent Immigration Court is a “win-win.” Pouring more Immigration Judges (particularly with little or no training) into an already dysfunctional system has actually resulted in fewer completions and is almost certain to increase the already disturbing discrepancies in asylum grant rates, etc.

But, getting officials in today’s highly politicized Department of Justice to support such a move is difficult. As I pointed out in an earlier post/article, http://immigrationcourtside.com/we-need-an-article-i-united-states-immigration-court-now/ one of the two reasons that Government officials sometimes fail to act in their own and the country’s best interests is “uncompromising philosophy.”

Jeff Sessions’s extreme anti-immigrant philosophy has led him to eschew “smart” immigration enforcement in favor of a “gonzo” policy of indiscriminate prosecution, jailing, detaining, deporting, and using the Immigration Courts as an adjunct of DHS enforcement, while trying to avoid the Immigration Court system entirely through a policy of increased “expedited removal.” Ultimately, this program, which lacks both credibility and due process, is very likely to fail and lead to a logjam in the Article III Courts. This, in turn, will result in almost nobody getting removed and Article III Judges making decisions about how the Immigration Court system should be run.

I don’t share Dana’s optimism that Sessions could be persuaded to cede his total control over the staffing and functioning of the U.S. Immigration Courts to an independent authority who would run it in accordance with due process. Although that would be in his best interests, I see no evidence that he is reflective enough to get beyond his long history of immigrant bashing and furthering a white nationalist agenda. I’d like to be proved wrong on this, but I wouldn’t hold my breath.

As I have pointed out several times before, when a system with over 600,000 pending cases finally “crashes and burns,” it’s going to take a big chunk of the American justice system with it. Maybe, just maybe, at that point legislators will finally have to do their jobs, step in, and create an independent Immigration Court, with or without the support of the Administration and the DOJ.

PWS

07-19-17

BREAKING: SPLIT DECISION — SUPREMES SAY YES TO GRANDPARENTS, DEMUR ON REFUGEES (FOR NOW)!

Here’s the report from NPR News:

Merrit Kennedy, reporting:

“The Supreme Court has upheld parts of a lower court order that had widened the definition of which citizens from the six Muslim-majority countries covered by the Trump administration’s travel ban are still eligible to travel to the U.S.

The order issued Wednesday leaves in place the action of a U.S. District Court judge in Hawaii who broadened the definition of close family to include categories such as the grandparents and cousins of a person in the U.S.

However, the Supreme Court blocked another part of the lower court order that said citizens with formal assurances from a U.S. refugee resettlement agency are eligible.

Since the travel ban was introduced, defining which citizens from the six countries are exempt has been redefined multiple times.

Last month, as we reported, the Supreme Court ruled that parts of the Trump administration’s ban can take effect while the justices prepare to hear oral arguments on the case later this year.

But the court said people from the six countries — Iran, Libya, Somalia, Sudan, Syria and Yemen — can be exempted from the ban if they have a “bona fide relationship” with a person in the U.S., including close family members.

The legal question here is centered on how to define a “bona fide relationship.” As we reported, the Trump administration argued that assurances from a refugee agency are “not sufficient” to constitute this relationship.

However, the judge in Hawaii rejected this argument. “An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones: it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations,” District Court Judge Derrick Watson wrote. “Bona fide does not get any more bona fide than that.”

The Supreme Court justices, however, stayed that portion of the judge’s order without elaborating. It sent the case back to the 9th U.S. Circuit Court of Appeals for a ruling. The Trump administration had asked the high court to settle the dispute, leapfrogging the 9th Circuit, which the justices denied without comment.

The order said Justices Clarence Thomas, Samuel Alito and Neil Gorsuch would have stayed the entire lower court order, including the broadening of close family categories.

Naureen Shah, Amnesty International USA senior director of campaigns, stated that Wednesday’s order “jeopardizes the safety of thousands of people across the world including vulnerable families fleeing war and violence.”

Earlier this week, the State Department released new instructions to U.S. embassies and consulates to implement the Hawaii federal court’s order expanded definition of close family to include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts and uncles, nephews and nieces, and cousins.”

Here is link to copy of the brief per curium order:

https://www.supremecourt.gov/orders/courtorders/071917zr_o7jp.pdf

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Six Justices of the Court appear ready to “just say no” to some parts of the “blanket ban” on the current record. However, they obviously deem “refugees” a closer case, leaving that for the Ninth Circuit to review first. So, there is still a chance that refugees ultimately will prevail. But, as I’ve said many times before, it’s one of the worst times in recent history to be a refugee.

PWS

07-19-17

TRAC: More Judges, Fewer Completions, More Backlog — Now Topping 610,000 — Trump’s Gonzo Immigration Policies Adversely Affecting Immigration Courts!

Subject: Immigration Court Dispositions Drop 9.3 Percent Under Trump

==========================================
Transactional Records Access Clearinghouse
==========================================

FOR IMMEDIATE RELEASE

Greetings. The latest available case-by-case data indicate that Immigration Court dispositions have dropped by 9.3 percent since President Trump assumed office. While a larger proportion of this declining total consist of removal orders, cases closed during the past five months (February 2017-June 2017) totaled only 77,084 cases as compared with 84,956 for the same five-month period during 2016.

Under President Trump discretion to defer deporting individuals – irrespective of their circumstances — has largely been abolished. During the first five months of the Trump Administration prosecutorial discretion closures precipitously dropped to fewer than 100 per month from an average of around 2,400 per month during the same five month period in 2016. This decline has contributed to the court’s growing backlog of cases. The backlog reached a record 610,524 cases as of June 30, 2017. This is up from 598,943 at the end of May.

These findings are based upon the very latest case-by-case court records-current through the end of June 2017-that were obtained under the Freedom of information Act and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

To read the full report, please go to:

http://trac.syr.edu/immigration/reports/474/

In addition, many of TRAC’s free query tools – which track the court’ backlog, new DHS filings, court dispositions, the handling of juvenile cases and much more – have now been updated through June 2017. For an index to the full list of TRAC’s immigration tools go to:

http://trac.syr.edu/imm/tools/

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

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

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

http://facebook.com/tracreports

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

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

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

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The results speak for themselves as Trump’s gonzo enforcement strategy and gross mismanagement of the U.S. Immigration Courts by the Sessions-led DOJ continue to destroy due process in Immigration Court and burden both taxpayers and the rest of the justice system. Go over to TRAC for the full report.

The Trump Administration is taking ADR — Aimless Docket Reschuffling — to new levels of waste and abuse.

Thanks to Nolan Rappaport for bringing g this to my attention.

PWS

07-18-17

The “Gibson Report” — July 17, 2017

The Gibson Report, July 17, 2017

PWS

07-17-17

BIA/DURESS DEFENSE — NEW COMMENTARY FROM JUDGE JEFFREY S. CHASE: “Former IJs and Board Members File Amicus Brief in Negusie Remand”

https://www.jeffreyschase.com/blog/2017/7/17/former-ijs-and-board-members-file-amicus-brief-in-negusie-remand

Jeffrey writes:

“An Amicus brief was recently filed with the BIA on behalf of seven former immigration judges (including myself) and a former BIA board member in the case of Negusie v. Holder. (In addition to the former Board member, one of the included IJs also served as a temporary Board member). The case was remanded by the U.S. Supreme Court in order for the Board to determine whether there is a duress exception to the bar to asylum which applies to those who have persecuted others on account of a protected ground.

The context for the brief is as follows. After initially ceding a limited duress exception to the Board, DHS recently changed its position. In now opposing such exception, DHS relies in part on its contention that the complex analysis such determinations require would overburden the currently backloggedimmigration courts.

The amicus brief on behalf of the former IJs and Board member offers three primary points in rebuttal to this portion of DHS’s claim. First, the brief points out that the immigration courts’ present backlog is largely the result of policy decisions made by both EOIR and DHS itself. As the brief argues, it is disingenuous for DHS to create policies that contribute to the immigration courts’ backlog, and then argue to limit immigration judge’s decision-making authority as a means of alleviating its self-created burden. The brief adds that such “bureaucratic failures resulting in the immigration court backlog cannot be a reason to deny people their right to a fair and just outcome.”

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Read Jeffrey’s complete analysis over on his own website at the above link.

Why the “Chevron Doctrine” has gotta go:

Folks, the Supremes remanded the Negusie case in 2009 — that’s right, approximately eight years ago! Since that time, the supposedly “expert” BIA has been screwing around trying to came up with guidance.

It was obvious from the Supreme’s decision that they all had firm opinions on the correct answer (notwithstanding some very disingenuous protests to the contrary). So, why send the case back several levels in the system, all the way to a non-Article III administrative tribunal to make a decision that the BIA is either unwilling or incapable of making in a timely manner?

It’s time for the Supremes to step up to the plate and decide difficult and controversial issues when they are presented to them, not “punt” back to lesser qualified Executive agencies that lack the necessary judicial independence to make the best and fairest decisions. Why have a Supreme Court that is afraid to decide important legal issues?

In the meantime, lives are in the balance as the BIA flounders about trying to reach a decision. U.S. Immigration Judges and lower Federal Courts have had to “go it alone” on real-life cases while the BIA ruminates. Indeed, I had to decide such cases at the trial level on several occasions without any meaningful guidance from the BIA.

Moreover, the obvious unfairness of these delays is well illustrated here. During the eight years at the BIA, the Administration has changed and is now taking a much more restrictive position. But, if the BIA had done its job, the precedent, presumably more generous, would have been established years ago, and many cases would already have been finally determined thereunder.

It’s time to put an end to the absurdly “undue deference” that the Supremes give to non-Article III decision makers on questions of law under Chevron.

PWS

07-17-17

JUDGES JOURNAL, SUMMER 2017: “IN BORROWED ROBES — A Day in the Life of an IMMIGRATION JUDGE” By Judge Dorothy A. Harbeck

JJ_SUM17_56_3_Harbeck

Excerpt:

“It was a Sunday afternoon of particular autumn splendor when I found myself trying on vampire capes for work. I had been three-quarters of the way to the York County Correctional Facility in Pennsylvania, a detention center, for my week-long detail of hearing removal cases of noncitizens when I realized I had forgotten my judicial robe. I was supposed to be on the bench in the immigration court the next morning. I was a new immigration judge (IJ), assigned to a detention facility in Eliz- abeth, New Jersey, and I did not want any problems on my detail to York. I gured forgetting my robe was a rookie move, and I wanted to project authority. Also, there is a specific Operating Policy and Procedure Memorandum (OPPM) on the subject. That OPPM requires that I wear a robe when presiding over cases so that I convey the proper dignity of the court and foster the aims of due process and a fair hearing.”

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Read the entire, wonderful first-hand account of a trial judge’s life at the “retail level” of our immigration system by my good friend Judge Dorothy Harbeck of the Elizabeth, N.J. Immigrant Court.

PWS

07-17-17

House Appropriations Adds 65 New U.S. Immigration Judge Positions!

According to Congressional Quarterly, on July 14, 2017, the House Appropriations committee voted to add 65 new U.S. Immigration Judge positions to the DOJ’s FY 2018 spending bill.

PWS

07-16-17

TRUMP ADMINISTRATION ASKS SUPREMES TO INTERVENE (AGAIN) IN TRAVEL BAN CASE!

http://www.huffingtonpost.com/entry/trump-supreme-court-travel-appeal_us_596980fde4b017418627ad08

HuffPost reports:

“The U.S. Justice Department on Friday asked the Supreme Court to block a judge’s ruling that prevented President Donald Trump’s travel ban from being applied to grandparents of U.S. citizens and refugees already being processed by resettlement agencies.

In a court filing, the administration asked the justices to overturn Thursday’s decision by a U.S. district judge in Hawaii, which limited the scope of the administration’s temporary ban on refugees and travelers from six Muslim-majority countries.

The latest round in the fight over Trump’s March 6 executive order, which he says is needed for national security reasons, came after the Supreme Court intervened last month to partially revive the two bans, which were blocked by lower courts.

The Supreme Court said then that the ban could take effect, but that people with a “bona fide relationship” to a U.S. person or entity could not be barred.

The administration had narrowly interpreted that language, saying the ban would apply to grandparents and other family members, prompting the state of Hawaii to ask Hawaii-based U.S. District Judge Derrick Watson to expand the definition of who could be admitted. He ruled for the state late on Thursday.

In the court filing, the Justice Department said the judge’s ruling “empties the (Supreme) Court’s decision of meaning, as it encompasses not just “close” family members but virtually all family members.

The conservative-leaning Supreme Court is not currently in session but the justices can handle emergency requests. The administration’s application could be directed either to Justice Anthony Kennedy, who has responsibility for emergency requests from western states, or to the nine justices as a whole. If the court as a whole is asked to weigh in, five votes are needed to grant such a request.

“The truth here is that the government’s interpretation of the Supreme Court’s stay order defies common sense,” said Omar Jadwat, a lawyer with the American Civil Liberties Union involved in challenging the ban. “That’s what the district court correctly found and the attorney general’s misleading attacks on its decision can’t change that fact.”

In his decision, Watson harshly criticized the government’s definition of close family relations as “the antithesis of common sense.”

Watson also ruled that the assurance by a resettlement agency to provide basic services to a newly arrived refugee constitutes an adequate connection to the United States because it is a sufficiently formal and documented agreement that triggers responsibilities and compensation.”

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Read the complete article at the link.

Wow, for a group that despises and disses Federal Judges on a regular basis, the Trumpsters seem to be always calling on them for help!

Hard to see what the “emergency” would be that can’t wait till October.

PWS

07-14-17

Administration Mulls Expansion Of Expedited Removal

https://www.washingtonpost.com/world/national-security/in-memo-trump-administration-weighs-expanding-the-expedited-deportation-powers-of-dhs/2017/07/14/ce5f16b4-68ba-11e7-9928-22d00a47778f_story.html?hpid=hp_rhp-top-table-main_dhsmemo-810pm:homepage/story&utm_term=.793d4747b053

The Washington Post reports:

“The Trump administration is weighing a new policy to dramatically expand the Department of Homeland Security’s powers to expedite the deportations of some illegal immigrants.

Since 2004, the agency has been authorized to bypass immigration courts only for immigrants who had been living in the country illegally for less than two weeks and were apprehended within 100 miles of the border.

Under the proposal, the agency would be empowered to seek the expedited removal of illegal immigrants apprehended anywhere in the United States who cannot prove they have lived in the country continuously for more than 90 days, according to a 13-page internal agency memo obtained by The Washington Post.

The new guidelines, if enacted, would represent a major expansion of the agency’s authority to speed up deportations under President Trump, who has made border security a top priority.

Two administration officials confirmed that the proposed new policy, which would not require congressional approval, is under review. The memo was circulated at the White House in May, and DHS is reviewing comments on the document from the Office of Management and Budget, according to one administration official familiar with the process who spoke on the condition of anonymity.

Joanne F. Talbot, a DHS spokeswoman, said she had not seen the memo. She described it as a draft and emphasized that no final decisions have been made by Homeland Security Secretary John F. Kelly.

“The potential changes would allow DHS to more efficiently use resources to remove persons who have been illegally present for relatively brief periods of time while still observing due-process requirements,” Talbot said.

Immigrant rights advocates denounced the proposed expansion of the expedited deportation authority, warning that the policy would strip more immigrants of due-process rights to seek asylum or other legal protections that would allow them to remain in the country.”

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Read the complete article at the link.

This should come as no surprise, since one of Trump’s Executive Orders on immigration called for such an expansion. The only surprises are 1) that it has taken them so long to get around to it, and 2) that the expansion is limited to those who have been here 90 days or less, rather than “pushing the envelope” to the maximum two-year limit in the statute.

Additionally, the Administration is no doubt aware that Article III judges have lacked the spine to stand up for due process and find the statute unconstitutional. Expedited removal is a travesty of due process. So, this will be a test whether the Article III judiciary is willing to stand up for the Constitution. So far, the prospects for the Constitution are not encouraging.

It’s not surprising that the Administration’s approach to the due process mess in the U.S. Immigration Courts is to avoid due process rather than fix the existing system. But, these measures are unlikely to help much. Almost all of the approximately 600,000 individuals currently in Immigration Court, and probably 95% of the 10-11 million plus individuals already in the U.S., have been here for 90 days or more.

PWS

07-14-17

BREAKING: GRANDPARENTS, REFUGEES WIN, TRUMP LOSES (AGAIN) — JUDGE WATSON EXPANDS TRAVEL BAN EXCEPTIONS!

Here’s U.S. District Judge Derrick Watson’s full opinion:

https://assets.documentcloud.org/documents/3894503/Hawaii-v-Trump-Motify-Injunction-Order.pdf

KEY EXCERPTS

“PREDETERMINED AND UNDULY RESTRICTIVE:”

“First, the Government’s utilization of the specific, family-based visa provisions of the INA identified above constitutes cherry-picking and resulted in a

predetermined and unduly restrictive reading of “close familial relationship.” Other, equally relevant federal immigration statutes define a close family in a much broader manner.”

“ANTHESIS OF COMMON SENSE:”

“In sum, the Government’s definition of “close familial relationship” is not only not compelled by the Supreme Court’s June 26 decision, but contradicts it.

Equally problematic, the Government’s definition represents the antithesis of common sense. Common sense, for instance, dictates that close family members be defined to include grandparents. Indeed, grandparents are the epitome of close family members. The Government’s definition excludes them. That simply cannot be. See generally Klayman v. Obama, 142 F. Supp. 3d 172, 188 (D.D.C. 2015) (noting that courts should not “abandon all common sense” when considering injunctive relief).”

“BONA FIDE DOES NOT GET ANY MORE BONA FIDE THAN THAT:”

“Nothing in the Supreme Court’s decision requires a refugee to enter into a contract with a United States entity in order to demonstrate the type of formal relationship necessary to avoid the effects of EO-2. An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones: it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, including compensation, it is issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security, and it is issued in the ordinary course, and historically has been for decades. See Slip Op. at 12. Bona fide does not get any more bona fide than that.11 Accordingly, Plaintiffs’ Motion is granted with respect to this specific request for injunctive relief.”

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PWS

07-14-17

7th Slams IJ, BIA For Mishandling Of Credibility, Corroboration Issues In Moldovan Asylum Case — COJOCARI V. SESSIONS!

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D07-11/C:16-3941:J:Hamilton:aut:T:fnOp:N:1992923:S:0

Key quote:

“We do not often see a timely asylum case where the applicant is a citizen of a country infamous for corruption and political oppression and presents a broadly consistent narrative and substantial corroboration. Yet Cojocari has done just that.

No. 16‐3941 27

Granted, his testimony includes a handful of minor discrep‐ ancies, and a couple of these—notably the timeline involving his university enrollment and the details of his October 2009 hospitalization—might have supported a plausible adverse credibility finding. But most of the discrepancies on which the immigration judge relied are so trivial or illusory that we have no confidence in her analysis or in the Board’s decision resting on that analysis.

Cojocari is entitled to a fresh look at his prior testimony and the evidence he supplied in support of his application for asylum, withholding of removal, and protection under the CAT. We therefore grant the petition for review. We urge the Board to assign this case to a different immigration judge for the remand proceedings. That is the best way to ensure that Cojocari gets the fair shake he deserves. E.g., Castilho de Oliveira v. Holder, 564 F.3d 892, 900 (7th Cir. 2009); Tadesse v. Gonzales, 492 F.3d 905, 912 (7th Cir. 2007); Bace v. Ashcroft, 352 F.3d 1133, 1141 (7th Cir. 2003); cf. Cir. R. 36 (7th Cir. 2016) (cases remanded for new trial are presumptively assigned to a different district judge).

On remand, the immigration judge should allow counsel for both sides to supplement the record if there is additional evidence (such as Cojocari’s medical book or an updated re‐ port on the political landscape in Moldova) that would assist the judge in assessing the risk of persecution or torture that Cojocari would face if deported.

The petition for review is GRANTED, the decision of the Board of Immigration Appeals is VACATED, and the case is REMANDED to the Board for further proceedings consistent with this opinion.”

PANEL: Chief Judge Wood, Circuit Judges Manion and Hamilton.

OPINION BY: Judge Hamilton

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Gee, who needs training when things like this can get through the system?

PWS

07-13-17

NEW SUIT IN CAL. ALLEGES THAT DHS FLOUTS ASYLUM LAW AT BORDER!

https://www.buzzfeed.com/adolfoflores/us-officials-accused-of-intimidating-asylum-seekers?utm_te

Adolfo Flores writes in BuzzFeed News:

“Border agents are systematically intimidating and turning away asylum seekers at the US–Mexico border, a lawsuit filed on Wednesday alleges.

The federal class-action lawsuit filed in US District Court in California by immigrant rights groups alleges that US Customs and Border Protection agents have told migrants that “Donald Trump just signed new laws saying there is no asylum for anyone.” They have also allegedly coerced asylum seekers into signing forms abandoning their claims by threatening to take their children away.

“CBP’s illegal conduct is occurring as a humanitarian crisis drives vulnerable people experiencing persecution in their home countries to seek refugee protection in the United States,” the complaint states.

CBP said in a statement that it does not comment on pending litigation.

One of the plaintiffs, identified as Abigail Doe in the complaint, is a Mexican native with two children under the age of 10. She attempted to flee Mexico after the cartels threatened to kill her family.

She arrived in Tijuana with her two kids and approached border agents at the San Ysidro point of entry. The lawsuit states CBP agents coerced her into recanting her fear of staying in Mexico and signing a form withdrawing her application for admission to the US.

Abigail Doe and other women in the lawsuit said they were told by agents that if they continued to pursue their asylum claims they would be separated from their children.

“As a result of this coercion, the form falsely states that [Abigail Doe] and her children were unable to access the asylum process and were forced to return to Tijuana, where they remain in fear for their lives,” the lawsuit states.

Another woman, identified as Dinora Doe from Honduras, presented herself to US border authorities after her and her 18-year-old daughter were threatened and repeatedly raped by MS-13 gang members. The complaint accuses CBP officials of misinforming Dinora Doe of her rights under US law, and denying her the chance to apply for asylum.

The lawsuit also names Al Otro Lado, a legal aid organization that helps migrants on both sides of the border, as a plaintiff because it has allegedly been forced to divert significant resources to counteract CBP’s actions.”

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The article with a copy of the plaintiffs’ filing is at the link.

While the Trump Administration often disingenuously pontificates about the “rule of law,” in fact, they appear to have little concern for the Constitution, the Immigration and Nationality Act, International Treaties and Conventions, and a host of other legal requirements.

PWS

07-12-17

ANOTHER SETBACK FOR TRUMP ADMINISTRATION AS U.S. JUDGE IN DETROIT BLOCKS IRAQI DEPORTATIONS!

https://patch.com/michigan/detroit/u-s-iraqi-deportation-hold-until-court-review-detroit-judge

AP reports:

“DETROIT, MI — A federal judge Tuesday halted the deportation of 1,400 Iraqi nationals, including many Christians fearing persecution, while courts review the orders to remove them from the U.S. Judge Mark Goldsmith issued a 24-page opinion asserting jurisdiction in the case over the objection of the Justice Department, which argued U.S. district judges do not have jurisdiction.

“This Court concludes that to enforce the Congressional mandate that district courts lack jurisdiction — despite the compelling context of this case — would expose Petitioners to the substantiated risk of death, torture, or other grave persecution before their legal claims can be tested in a court,” Goldsmith wrote in a 24-page opinion.

Goldsmith earlier blocked the deportations while he considered whether he had jurisdiction over the case. (For more local news, click here to sign up for real-time news alerts and newsletters from Detroit Patch, click here to find your local Michigan Patch. Also, like us on Facebook, and if you have an iPhone, click here to get the free Patch iPhone app.)

Many of the Iraqis, including 114 rounded up in the Detroit area last month who are mostly Christians, fear attacks over their religion if returned to Iraq. The government says they face deportation because they committed crimes in the U.S.

Goldsmith earlier extended a ruling suspending the deportation of the 114 while he considered jurisdiction to all Iraqi nationals in the U.S.

Trump Jr.’s ‘Nothing’; Iraqis Can Stay; Hotel Hack: Patch Morning Briefing

Also: sharing streaming passwords, a violent riptide, and a teen dies using her cellphone in the bath.

The U.S. government said 1,400 Iraqis are under deportation orders nationwide, though most are not in custody. Some have been under orders for years because they committed crimes in the U.S. But legal action over deportations took on new urgency because Iraq has agreed to accept them.

The American Civil Liberties Union said a suspension is necessary so Iraqi nationals can go to immigration court and argue that their lives would be in jeopardy if returned to their native country. Without some intervention, the ACLU contends that people could be deported before their case is called.

Goldsmith scheduled a Wednesday hearing to discuss several matters in the case, including a request from the Iraqis for a preliminary injunction barring the deportations.”

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Seems like these folks should have their cases reviewed by a U.S. Immigration Judge based on current conditions in Iraq.

PWS

07-12-17

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