Litigation – Page 111 – immigrationcourtside.com

DUE PROCESS: Hold Those Thoughts! Professor Lenni Benson Tells Us How Due Process Could Be Achieved In Immigration Court!

http://cmsny.org/publications/jmhs-immigration-adjudication/

Here’s an Executive Summary of Lenni’s article in the Journal on Migration and Human Security:

“The United States spends more than $19 billion each year on border and immigration enforcement.[1] The Obama administration removed more people in eight years than the last four administrations combined.[2] Yet, to the Trump administration, enforcement is not yet robust enough. Among other measures, the administration favors more expedited and summary removals. More than 80 percent[3] of all removal orders are already issued outside the court process: When the Department of Homeland Security (DHS) uses summary removal processes, both access to counsel and an immigration judge can be nearly impossible. Advocates and policy analysts are equally concerned that a backlog of over 545,000 immigration court cases creates delay that harm people seeking asylum and other humanitarian protection. Recent use of priority or “rocket” dockets in immigration court and lack of appointed counsel also interfere with the fair adjudication of claims. Thus the administrative removal system is criticized both for being inefficient and moving too slowly, on the one hand, and for moving too quickly without adequate procedural safeguards, on the other. Both critiques have merit. The challenge is to design, implement, and most critically, maintain an appropriately balanced adjudication system.

While it is clear that US removal procedures need reform, process alone will not be able to address some of the systematic flaws within the system. Ultimately, the DHS will need to refine and prioritize the cases that are placed into the system and the government needs new tools, widely used in other adjudication systems, that can reduce backlogs, incentivize cooperation, and facilitate resolution. Congress should similarly reexamine the barriers to status and avenues for regularization or preservation of status. The paucity of equitable forms or relief and the lack of statutes of limitation place stress on the immigration court system. The lack of appointed counsel has a dramatic impact on case outcomes. Without counsel, the rule of law is barely a constraint on government authority. Conversely, a system of appointed counsel could lead to efficiencies and to a culture of negotiation and settlement within the immigration court system.

DHS has increasingly used every tool in its arsenal to expeditiously remove people from the United States and most of these tools bypass judicial hearings. In these “ministerial” or expedited forms of removal, there is no courtroom, there is no administrative judge, and there are rarely any opportunities for legal counsel to participate. Moreover, there is rarely an opportunity for federal judicial review. In these settings, the rule of law is entirely within the hands of Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP) officers who serve as both prosecutor and judge. There is little record keeping and almost no avenue for administrative or judicial review. This paper will argue that the rule of law is missing in the US removal adjudication system, and will propose ways in which it can be restored.

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[1] In fiscal year (FY) 2016, the budget for CBP and ICE was $19.3 billion. See analysis by the American Immigration Council (2017a) about the costs of immigration enforcement. The budget for the immigration court has grown only 30 percent in comparison with a 70 percent increase in the budget of the DHS enforcement.

[2] Taken from Obama removal data and comparison to past administrations (Arthur 2017).

[3] The DHS does not routinely publish full statistical data that allows a comparison of the forms of removal. In a recent report by the Congressional Research Service, the analyst concluded that 44 percent were expedited removals as described below, and an additional 39 percent were reinstatement of removals — 83 percent of all orders of removal were outside the full immigration court system (Congressional Research Service 2015).”

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And, here’s Lenni’s conclusion:

“Conclusion — A Dark Territory

Immigration law operates in the darkness beyond the reach of due process protections, accuracy, fairness, and transparency. Record numbers of immigrants live in the United States, but far too often they reside in a legal territory which the light does not reach. This essay has highlighted some of the characteristics of the US removal system. It outlines this system’s lack of substantive protections and its overreliance on hidden and expedited processes. It argues that this system needs to be redesigned to reflect the rule of law. The system needs to be exposed to the light of day.”

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Here is a link to Lenni’s complete article: Benson on Rule of Law.

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Before Jeff Sessions became the Attorney General, I wrote, with totally unjustified optimism and charity, that he could be the one person in Washington who could fix the due process problems in the U.S. Immigration Courts during the Trump Administration. http://wp.me/P8eeJm-ai.

But, sadly, it is now clear that Sessions, as his critics had predicted, is in fact “Gonzo-Apocalypto” — a relic of the past, wedded to a white nationalist, restrictionist, effectively racist (regardless of “actual intent”), anti-immigrant agenda.

So, there is no practical chance of the necessary due process reforms being made during the Trump Administration. Consequently, the “Gonzo-Apocalypto Agenda” will almost certainly drive the U.S. Immigration Court system into the ground. This will likely be followed by a “de facto receivership” of the Immigration Courts by the Article III Courts.

But, at some point in the future, the U.S. Immigration Court will “re-emerge from bankruptcy” in some form. Hopefully, those charged with running the reorganized system will remember the thoughtful ideas of Professor Benson and others who care about due process in America.

PWS

04-30-17

BIA PRECEDENT CHART — Latest Edition

https://www.justice.gov/eoir/bia-precedent-chart-ai-ca

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Many thanks to Nolan Rappaport for alerting me to this update of an essential research tool! And, Kudos to the BIA for making this helpful information available to the public!

PWS

04-30-17

HUFFPOST: How White Nationalist “Know Nothing” Jeff “Gonzo Apocalypto” Sessions Tanked Needed Police Reform In Chicago Without Even BOTHERING TO READ The DOJ’s 160 Page Report!

http://www.huffingtonpost.com/entry/doj-police-reform-jeff-sessions-chicago_us_58f50a77e4b0da2ff86254cf?ncid=inblnkushpmg00000 report on HuffPost:

Ryan J. Reilly & Kim Bellware report in HuffPost:

“CHICAGO ― In the final months of the Obama administration, the Justice Department’s Civil Rights Division scrambled to complete its biggest-ever investigation of a city police department: a 13-month probe of Chicago’s 12,000-strong police force that wrapped up just a week before President Donald Trump’s inauguration.

For more than a year, the division’s lawyers reviewed thousands of Chicago Police Department documents, visited all 22 police districts, went on 60 ride-alongs, reviewed 170 police shooting files, examined over 425 incidents of less-lethal force, interviewed 340 department members and talked to about 1,000 Chicago residents.

Their final report, issued Jan. 13, recognized the tough job officers had in Chicago as they dealt with spiking gun violence, and praised the “diligent efforts and brave actions of countless” officers. But a “breach in trust” eroded Chicago’s ability to prevent crime, because officers were able to escape accountability when they broke the law, the report found. Because “trust and effectiveness in combating violent crime are inextricably intertwined,” the report found “broad, fundamental reform” was needed in Chicago.

Without a formal legal agreement to reform — known as a consent decree — and independent monitoring, the report concluded, reform efforts in Chicago were “not likely to be successful.”

Jeff Sessions, Trump’s attorney general, disagrees. In recent weeks, Sessions has expressed deep skepticism about the role of the federal government in fixing broken police departments, leaving serious doubts about the ultimate outcome of the Justice Department’s work in Chicago.

Sessions wants the Justice Department to serve as the “leading advocate for law enforcement in America.” While admitting he hadn’t read the full Chicago report, he called it “anecdotal” and “not so scientifically based.” Earlier this month in Baltimore, a Justice Department lawyer said Sessions had “grave concerns” about an agreement previously reached between that city and the Obama administration. A federal judge signed off on the deal over Sessions’ objections.

In an interview with a conservative radio host this month, Sessions seemed to suggest that Justice Department investigations and consent decrees were resulting in “big crime increases.” In an op-ed for USA Today last week, Sessions wrote that consent decrees could amount to “harmful federal intrusion” that could “cost more lives by handcuffing the police instead of the criminals.” There’s too much focus on “a small number of police who are bad actors,” Sessions wrote, and “too many people believe the solution is to impose consent decrees that discourage the proactive policing that keeps our cities safe.”

Chicago has a serious violent crime problem. Last year was the deadliest in the city in two decades, with 762 homicides. But supporters of police reform like Jonathan Smith, a former official in the Justice Department’s Civil Rights Division, said that Sessions was “simply wrong” to suggest that crime goes up as a result of reform (or, in Chicago’s case, an investigation). DOJ investigations can increase community confidence in police departments and make people safer, Smith argued.

A protester takes part in a weekly nighttime peace march through the streets of a South Side Chicago neighborhood on September 16, 2016.

“In communities like Baltimore and Chicago where certain neighborhoods are experiencing gun violence, the problems long predate Justice Department involvement,” said Smith. “The issues in those communities are linked to weakened gun laws that create easy access to firearms, lack of opportunity for jobs and housing and a history of police misconduct that creates mistrust between police and the communities they serve. Lack of police accountability is often a significant contributing factor in a spike in crime because of community mistrust.”

Lorie Fridell, a criminologist and police bias expert from whom the Chicago’s Police Accountability Task Force solicited information for its report released last year, said DOJ investigations not only help to usher in badly need reforms to the specific departments probed, but other departments also rely on the reports to determine if their own departments are meeting constitutional standards.

“I think it’s very unfortunate the DOJ is no longer going to prioritize police reform,” Fridell said. ”The future of police reform is therefore going to have to come from the ground up. It’s going to be important for concerned individuals to demand high-quality policing.”

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Read the complete HuffPost article at the above link. And, for those of you who would like to be better informed than AG “Gonzo Apocalypto” about the need for serious police reform in Chicago, you can read the complete DOJ Civil Rights Division report here: https://www.justice.gov/opa/file/925846/download.

Sen. Liz Warren, Sen. Cory Booker, and others who opposed Sessions’s nomination to be AG, and told the truth about his white nationalist views (which he tried to conceal/downplay during his confirmation hearing, in addition to lying under oath about his Russian contacts) were right!

PWS

04-29-17

SUPREMES: “Chiefie” Incredulous At DOJ Position in Natz Case!

http://m.dailykos.com/stories/2017/4/27/1656715/–Oh-come-on-Supreme-Court-justices-incredulous-at-Justice-Department-immigration-argument?detail=emaildkre&link_id=1&can_id=aaabbf957f39adda3c39dd02432b2ad6&source=email-oh-come-on-supreme-court-justices-incredulous-at-justice-department-immigration-argument-2&email_referrer=oh-come-on-supreme-court-justices-incredulous-at-justice-department-immigration-argument-2___205999&email_subject=north-carolina-woman-voted-illegally-for-trump-but-wont-be-charged-for-compassionate-reasons

Laura Clawson writes at the Daily Kos:

“It, uh, doesn’t sound like the Trump-Sessions Justice Department is going to prevail in its argument to the U.S. Supreme Court that citizenship can be revoked over any misstatement or failure to disclose at all, however minor, that a person included (or didn’t include) on their citizenship application. Yes, Justices Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg were all vocally skeptical. But there was also this, from Chief Justice John Roberts:

“Some time ago, outside the statute of limitations, I drove 60 miles an hour in a 55-mile-an-hour zone,” the chief justice said, adding that he had not been caught.

The form that people seeking American citizenship must complete, he added, asks whether the applicant had ever committed a criminal offense, however minor, even if there was no arrest.

“If I answer that question no, 20 years after I was naturalized as a citizen, you can knock on my door and say, ‘Guess what, you’re not an American citizen after all’?” Chief Justice Roberts asked.

Robert A. Parker, a Justice Department lawyer, said the offense had to be disclosed. Chief Justice Roberts seemed shocked. “Oh, come on,” he said.

It sounds an awful lot like the Trump regime is looking for the right to revoke any naturalized person’s citizenship at any time, while creating an enormous new hoop for people seeking citizenship to jump through. Can you remember every single thing you’ve ever done?

Divna Maslenjak, the woman whose case prompted this exchange, could still face legal problems, since she had claimed that her husband had avoided military conscription in Bosnia when really he served in a unit that committed war crimes. But whatever the specific result for Maslenjak, it doesn’t seem likely that the Trump regime is going to get the far-ranging power it was effectively seeking:

Roberts added that it might not be a constitutional problem, but “it is certainly a problem of prosecutorial abuse.” Given the wide range of questions on the naturalization form, he observed, the government’s position would mean that government officials would have “the opportunity to denaturalize anyone they want, because everybody is going to have a situation where they didn’t put in something like that.” “And then the government can decide,” Roberts warned, “we are going to denaturalize you for reasons other than what might appear on your naturalization form, or we’re not.” For Roberts, giving that “extraordinary power, which essentially is unlimited power,” to the government would be “troublesome.”

Welcome to the Donald Trump presidency, Mr. Chief Justice.”

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For many years (at least as long as I’ve been in DC — since 1973) the DOJ, and in particular the Solicitor General’s Office, has occupied a position of unusual respect and credibility with the Supremes. Indeed, the Solicitor General is sometimes referred to as the “10th Justice” because the Supremes often defer to his or her judgment on whether a case merits certiorari.

But, with Jeff “Gonzo Apocalypto” Sessions at the helm, I wouldn’t be surprised to see the DOJ lose its vaunted reputation and be treated with the same degree of skepticism that other litigants face from the Supremes.

To be fair, however, the DOJ’s “boneheaded” position in Maslenjak originated in the Obama Administration which also, thanks in no small way to its tone deaf handling of many immigration cases (particularly those involving crimes) also “wore out its welcome,” so to speak, with the Supremes.

Perhaps, it’s just the general arrogance with which the Executive Branch and the DOJ have functioned over the last several Administrations of both parties. And, Congress, largely as a result of the GOP and its Tea Party wing, turning into “Bakuninists”– promoting anarchy and achieving almost nothing of value since the enactment of Obamacare, has not helped stem the tide of Executive overreach.

PWS

04-29-17

POLITICO: Despite Mis-Steps & Bombast, Trump’s Immigration Enforcement Policies Are Having An Impact!

http://www.politico.com/story/2017/04/28/trump-immigration-crackdown-237719?lo=ap_c1

TED HESSON and SEUNG MIN KIM write in HuffPost:

“President Donald Trump has systematically engineered a major crackdown on immigration during his first 100 days in office — even as courts reject his executive orders and Congress nears a spending deal that will deny him funding for a wall along the southern border.

The number of arrests on the U.S.-Mexico border plummeted in March to the lowest level in 17 years — a strong suggestion that Trump’s anti-immigration rhetoric is scaring away foreigners who might otherwise try to enter the United States illegally. In addition, part of a lesser-known executive order that Trump signed in January gave federal immigration agents broad leeway to arrest virtually any undocumented immigrant they encounter.

Granted, Trump’s splashiest immigration promises — the border wall and two successive bans on immigrants from various majority-Muslim nations — have been stymied by Congress and the courts. And Tuesday, Trump received another setback when a district court judge blocked a directive denying federal funding to so-called sanctuary cities that refuse to help enforce federal immigration laws.

But the president has nonetheless reshaped the nation’s immigration policy substantially.

“Even without putting down one single brick,” said Dan Stein, president of the Federation for American Immigration Reform, a group that favors lower immigration levels, “Trump has dramatically altered the flow across the southern border.”

Businesses that use foreign workers, worried they’ll get singled out by federal agents during a visa review, are starting to explore the possibility of recruiting domestic labor. Trump’s enforcement policies are affecting higher education, too, with early signs suggesting foreign students are less likely to apply to U.S. colleges and universities. Nearly 40 percent of colleges and universities surveyed by the American Association of Collegiate Registrars and Admissions Officers reported a decline in international applications, and almost 80 percent said they fielded particular concerns from students in the Middle East. International students are, among other things, an important source of revenue for colleges, since typically they pay sticker price on tuition and fees.

To longtime advocates for undocumented immigrants, the change is less about numbers than about who’s being targeted.

The interior enforcement executive order that Trump signed during his first week in office dumped the Obama administration’s practice of prioritizing the arrests of serious criminals — a policy that allowed low-level immigration offenders to fly below the radar.

“The agents that I’ve talked to over the past few months have said that they feel that they can go out and enforce the law again, whereas they had many limitations on them over the past eight years,” said John Torres, chief operating officer at the consulting firm Guidepost Solutions and acting director of U.S. Immigration and Customs Enforcement during the George W. Bush administration. “If they encounter someone who is out of status, even though they are not targeting that person, they can now take them into custody.”

Early numbers reflect that shift. ICE arrested 21,362 immigrants from January through mid-March, a 32 percent increase over the same period last year. That tally included 5,441 non-criminals, double the number arrested a year earlier.

Trump, Department of Homeland Security Secretary John Kelly and Attorney General Jeff Sessions have all argued that the administration will target serious criminals first. But a steady stream of reports have shown otherwise.

An Ohio woman with four U.S. citizen children was recently deported to Mexico, despite the fact that she had been in the U.S. for 15 years and had no criminal record. Earlier this month, an Indiana restaurant owner with three U.S. citizen children, a two-decade history in the country, and no criminal record also was removed to Mexico.

“What’s really interesting here is how much of the difference seems to be rhetorical,” said Cecilia Muñoz, who was domestic policy director to formerPresident Barack Obama. “By talking tough, they have unleashed officers who now feel like they can do whatever they want.”

The threat of deportation even hangs over Dreamers in the Deferred Action for Childhood Arrivals program. That initiative, enacted by Obama in 2012, allows undocumented immigrants brought to the U.S. at a young age to apply for deportation relief and work permits.

More than 770,000 people are covered under DACA, which Trump threatened to kill during the campaign. Since taking office, he’s backed off on that pledge — yet infuriated immigration advocates say the administration’s enforcement tactics show Dreamers are in no way safe from deportation.

Earlier this month, Juan Manuel Montes, a DACA recipient who had lived in California, filed a lawsuit that claimed he was deported to Mexico despite his DACA status, the first known removal of its kind under the new administration. The facts of the case remain in dispute — DHS maintains that it has no record of the deportation in question and insists Montes left the U.S. without permission, which would invalidate his DACA protections.

Democrats say Trump’s reluctance to rescind the Obama-era initiative has been a rare silver lining to the new administration’s immigration policy. Still, they are by no means assured, pointing to the ramped-up enforcement by immigration agents across the nation.

“It fails to dispel the fear,” said Sen. Richard Blumenthal of Connecticut, noting the Montes deportation. “There’s just a variety of ways where the fear can be paralyzing and so insidious. So to have some clear, unambiguous system is so important, and it has been so lacking.”

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Read the full report over on Politico. This analysis, along with others I have posted, suggests that trump is “winning” the immigration war notwithstanding a string of “defeats” in the lower Federal Courts on “signature” immigration issues like the “travel ban” and “sanctions on sanctuary cities.”

PWS

04-29-17

INCARCERATION NATION: Private Prison Corps Win, Everyone Else Loses!

http://www.huffingtonpost.com/entry/trump-100-days-private-prisons_us_590203d8e4b0026db1def8fb

Dana Liebelson reports for HuffPost:

“WASHINGTON ― When Donald Trump was running for president, the private prison industry in the United States was down for the count. An undercover reporter exposed abuse at a private prison in Louisiana. A report from the Department of Justice’s Office of the Inspector General found private prisons had higher rates of assault than regular prisons.

The Obama administration announced in August that it was phasing out the use of private prisons to house federal inmates; private prison stock subsequently plunged. And Trump’s foe, Democratic candidate Hillary Clinton — who had received donations from private prison lobbyists — said she was “glad” to see the end of private prisons. “You shouldn’t have a profit motivation to fill prison cells with young Americans,” she added.

Then Trump won.

In his first 100 days, Trump has failed to fulfill the populist promises of his campaign, while industries like Wall Street have made big gains. But the private prison industry in the U.S. — which is heavily dependent on federal contracts from the Federal Bureau of Prisons, U.S. Immigration and Customs Enforcement and the U.S. Marshals Service — has had one of the biggest turnarounds of all, winning Justice Department approval, new and extended contracts, and an administration that is expected to bolster the demand for a lot of detention beds.

The Obama administration’s 2016 directive to reduce and ultimately end the use of privately operated prisons on the federal level “put these companies on the defensive in a way that we had not seen for at least 15 years,” Carl Takei, a staff attorney at the American Civil Liberties Union’s national prison project, told HuffPost. “But now, we face a total reversal of that situation.”

In February, Attorney General Jeff Sessions withdrew the Obama-era directive, claiming that it “impaired the [Bureau of Prisons’] ability to meet the future needs of the federal correctional system.” One day after that announcement, CNN reported that the stocks of CoreCivic (previously called Corrections Corporation of America) and GEO Group, the two largest private prison operators, were up 140 percent and 98 percent, respectively, since Trump’s election.

“The attorney general’s announcement in February validated our position that the DOJ’s previous direction was not reflective of the high-quality services we have provided,” said Jonathan Burns, a spokesman for CoreCivic.

But the wins for private prison operators go further than the Trump administration’s reversal of the Obama administration’s memo, which technically only applied to a sliver of federal prisons, not state lockups or immigration detention facilities.

The Trump administration is also expected to implement tough-on-crime policies and large-scale deportations. Just this month, Sessions announced plans to weigh criminal charges for any person caught in the U.S. who has been previously deported, regardless of where they’re arrested.

CoreCivic does not draft legislation or lobby for proposals that might determine the basis or duration of a person’s incarceration, the company spokesman told HuffPost.

But private prison operators acknowledge that “new policies, priorities under the new administration [have helped create] an increased need for detention bed space,” as J. David Donahue, GEO Group senior vice president, told investors in February.

Donahue said his company was having ongoing discussions with ICE about its capabilities, which included “3,000 idle beds and 2,000 underutilized beds.” In April, GEO Group announced it had been awarded an ICE contract to build a new 1,000-bed detention center in Texas.

CoreCivic also announced a contract extension in April at a 1,000-bed detention facility in Texas. The company cited “ICE’s expected detention capacity needs” and “the ideal location of our facility on the southern border” as reasons ICE might extend its contract even further.

The Department of Homeland Security has identified 33,000 more detention beds available to house undocumented immigrants as it ramps up immigration enforcement, according to an internal memo obtained by The Washington Post and dated April 25.

“We can expect that the private prison industry will get rich off of any push by the Trump to expand the number of people in federal custody,” the ACLU’s Takei said.

If you’re determined to lock everybody up as long as possible, whether they’re dangerous or not, you need a place to put them and lots of money to pay for it.Molly Gill, director of federal legislative affairs at FAMM

In February, Trump re-emphasized his support for Kate’s Law, backed by Sen. Ted Cruz (R-Texas), which would establish a five-year mandatory minimum prison sentence for undocumented immigrants who re-enter the United States after being convicted twice for illegal re-entry. The ACLU has estimated that even the most limited version of Kate’s Law would require nine new federal prisons.

Sessions has also tapped Steven Cook, who previously headed a group that opposed the Obama administration efforts to implement sentencing reforms, for a key role in a task force that will re-evaluate how the federal government deals with crime. This suggests that the Trump administration is planning to fulfill its promises to prosecute more drug and gun cases federally.

“If you’re determined to lock everybody up as long as possible, whether they’re dangerous or not, you need a place to put them and lots of money to pay for it,” said Molly Gill, director of federal legislative affairs at FAMM, a group that opposes mandatory minimums.

Although the federal prison population has declined in recent years, federal prisons are still over capacity. Congress “does not seem to have much of a taste for building new prisons,” Gill noted, so “private prison contractors could make up the difference.”

Private prison critics claim that the industry has an incentive to spend less money on inmate services, as well as sufficient staffing, which can have disastrous human rights consequences including reliance on solitary confinement, poor mental health care, and violence. Private prisons are also not subject to the Freedom of Information Act, which means any misconduct is often shrouded in secrecy. (The CoreCivic spokesman said “the comments raised by critic groups are misinformed and neglect the history of our company.”)

A spokesman for GEO Group told HuffPost that the company believes the Obama administration decision to phase out private prisons last August “was based on a misrepresentation” of an Inspector General report that he said demonstrated that privately run facilities “are at least as equally safe, secure, and humane as publicly run facilities and in fact experienced lower rates of inmate deaths.”

In fact, investigators found that in “most key areas, contract prisons incurred more safety and security incidents per capita than comparable [Bureau of Prisons] institutions.” (At the time, GEO Group said higher incidents numbers could be chalked up to better reporting.)

Civil rights advocates, nonetheless, have deep concerns. “Handing control of prisons to for-profit companies is a recipe for abuse and neglect,” Takei argued. “We expect that even greater reliance on private prisons will lead to similar problems, but on a larger scale,” he added.”

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For more on the Administration’s plans for a “New American Gulag,” see my recent post: http://wp.me/p8eeJm-KN.

And, while individuals subject to so-called “civil” detention clearly are the biggest losers, along with our self-respect as a nation with humane values, don’t forget the U.S. taxpayers who, along with shelling out billions for unnecessary incarceration, will also likely be on the tab for some big legal fees and damage awards once folks start suffering actual harm from the Administration’s abandonment of appropriate standards and safeguards on conditions of detention.

PWS

04-28-17

NEW FROM 4TH CIRCUIT: Court Reviews Expedited Removal, Finds VA Statutory Burglary “Not Divisible” — CASTENDET-LEWIS v. SESSIONS!

http://www.ca4.uscourts.gov/Opinions/Published/152484.P.pdf

PANEL:

GREGORY, Chief Judge, KING, Circuit Judge, and DAVIS, Senior Circuit Judge.

OPINION BY: JUDGE KING

“In these circumstances, we must assess whether a Virginia statutory burglary constitutes an aggravated felony using the categorical approach. See Omargharib, 775 F.3d at 196. As the Attorney General concedes in this proceeding, the Virginia burglary statute is broader than the federal crime of generic burglary. In Taylor, the Supreme Court included in its definition of a generic burglary “an unlawful or unprivileged entry” into “a building or other structure,” and explained that state burglary statutes that “eliminat[e] the requirement that the entry be unlawful, or . . . includ[e] places, such as automobiles and vending machines, other than buildings,” fall outside the definition of generic burglary. See 495 U.S. at 598-99. As we noted above, the Virginia burglary statute is satisfied by various alternative means of entry, including one’s entry without breaking or one’s concealment after lawful entry. By proscribing such conduct, the statute falls outside the scope of generic burglary. The Virginia burglary statute also reaches several places that are not buildings or structures, such as ships, vessels, river craft, railroad cars, automobiles, trucks, and trailers. As the BIA recently recognized, the breadth of the statute means that it falls outside the definition of an aggravated felony. See In re H-M-F, __ I. & N. Dec. __ (BIA Mar. 29, 2017). Utilizing the categorical approach, we are also satisfied that the Virginia offense of statutory burglary criminalizes more conduct than the generic federal offense of burglary. The DHS therefore erred in classifying Castendet’s conviction as an aggravated felony.”

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Could the wheels be starting to come off the DHS’s “Expedited Removal Machine” before it even gets up to full throttle?

PWS

04-27-17

Supremes Engage On Naturalization Issue!

https://www.washingtonpost.com/politics/courts_law/supreme-court-fears-giving-government-too-much-power-to-revoke-naturalization/2017/04/26/13b7814e-2aac-11e7-be51-b3fc6ff7faee_story.html?utm_term=.6a9daea75352

Robert Barnes writes in the Washington Post:

“Chief Justice John G. Roberts Jr. said Wednesday he had grave worries about “prosecutorial abuse” if even a minor lie in the application process means the government can later strip a naturalized immigrant of her citizenship.

As the issues of immigration and deportation take center stage under the Trump administration, Roberts and other Supreme Court justices seemed hesitant to give the government unfettered power to remove naturalized citizens from the country.

The case involved a Bosnian native, Divna Maslenjak, who was criminally prosecuted for lying on her application about her husband’s military service. She was deported by the Obama administration, which held the broad view that any misrepresentation — whether relevant or not — was enough to give the government the right to consider revocation.

“It is troublesome to give that extraordinary power, which, essentially, is unlimited power, at least in most cases, to the government,” Roberts said. Because it would be easy in almost all cases to find some falsehood, the chief justice said, “the government will have the opportunity to denaturalize anyone they want.”

Roberts, who regularly warns about the discretionary power of prosecutors, and Justice Anthony M. Kennedy added a moment of drama to a lively hearing that was the Supreme Court’s last scheduled oral argument of the term.

They were not persuaded by Justice Department lawyer Robert A. Parker’s assertion that other safeguards are built into the system and that government lawyers had little reason to search through the millions of files of naturalized citizens to find trivial reasons to prosecute. Even denaturalization, Parker said, only returns a person to the status of lawful permanent resident and allows reapplication.

. . . .

Some justices noted that the statute does not specifically require that. “It seems like, linguistically, we have to do some somersaults to get where you want to go,” said Justice Neil M. Gorsuch, who testified during his recent confirmation hearings about sticking closely to the text of statutes.

And Justice Ruth Bader Ginsburg said Maslenjak’s misrepresentations appeared directly relevant to her application. She lied about what her husband was doing in Bosnia, Ginsburg said. “Under what circumstances would that be immaterial?”

. . . .

The case is Maslenjak v. United States.”

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PWS

04-26-17

BLOCKED: Federal Judge Rebuffs Trump On Sanctuary Cities –Trump/Sessions Undermine Own Position — Trump Remains Defiantly Clueless!

http://www.politico.com/story/2017/04/25/sanctuary-cities-trump-judge-blocks-237597

Josh Gerstein reports in Politico:

“A federal judge has blocked a directive from President Donald Trump seeking to deny federal funding to so-called “sanctuary cities” and other localities that decline to cooperate in enforcement of federal immigration laws.

San Francisco-based U.S. District Court Judge William Orrick issued a preliminary injunction Tuesday barring federal officials nationwide from carrying out the portion of a Jan. 25 Trump executive order aimed at cutting off grants to local governments that won’t provide assistance to federal authorities in locating and detaining undocumented immigrants.

Orrick cited public comments from Trump and Attorney General Jeff Sessions in concluding that the order appeared intended to sweep more broadly than allowed by federal law. The judge, an Obama appointee, called “not legally plausible” the Justice Department’s arguments that Trump was simply trying to secure compliance with current law.

“If there was doubt about the scope of the Order, the President and Attorney General have erased it with their public comments,” Orrick wrote. “The Constitution vests the spending power in Congress, not the President, so the Order cannot constitutionally place new conditions on federal funds.”

The White House late Tuesday condemned the ruling in harsh terms.

“Today, the rule of law suffered another blow, as an unelected judge unilaterally rewrote immigration policy for our Nation,” the press secretary’s office said in a statement, adding:

“Once again, a single district judge — this time in San Francisco — has ignored Federal immigration law to set a new immigration policy for the entire country. This decision occurred in the same sanctuary city that released the 5-time deported illegal immigrant who gunned down innocent Kate Steinle in her father’s arms. ”

The ruling is another high-profile blow to Trump’s efforts to use executive orders to carry out major policy moves— a drive his staff is highlighting as he approaches the 100-days-in-office mark. Courts have also blocked key portions of two of the president’s other immigration-related executive orders — his travel bans on citizens of several majority Muslim countries.

However, Orrick noted that his new injunction may not block much of what the Trump administration claimed in court it was trying to do through the portion of the Jan. 25 order targeting sanctuary cities. If all Trump wanted to do was cut off Justice Department grants to localities that are out of compliance with the law, he can still do that, the judge observed.

“This injunction does nothing more than implement the effect of the Government’s flawed interpretation of the Order,” Orrick wrote.

Justice Department spokesman Ian Prior did not say whether an appeal is planned, but he emphasized that the judge did not block the federal government from enforcing federal law as it now stands.

. . . .

The judge concluded that the California localities were correct to be concerned that their funding was in jeopardy and that the grants affected might be more than just the few the Justice Department said were covered by Trump’s order.

“Although Government counsel has represented that the Order will be implemented consistent with law, this assurance is undermined by Section 9(a)’s clearly unconstitutional directives. Further, through public statements, the President and Attorney General have appeared to endorse the broadest reading of the Order,” Orrick added.

“Is the Order merely a rhetorical device, as counsel suggested at the hearing, or a ‘weapon’ to defund the Counties and those who have implemented a different law enforcement strategy than the Government currently believes is desirable? The result of this schizophrenic approach to the Order is that the Counties’ worst fears are not allayed and the Counties reasonably fear enforcement under the Order,” the judge wrote.”

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

The complete report, along with a link to Judge Orrick’s full opinion can be found at the above link. The case is County of Santa Clara v. Trump.

PWS

04-26-17

PRECEDENT: BIA Opines On “Divisibility” In Agfel Cases — Matter of CHAIREZ-CASTREJON, 27 I&N Dec. 21 (BIA 2017)

https://www.justice.gov/eoir/page/file/959656/download

Here’s the BIA headnote:

“In determining whether a statute is divisible under Mathis v. United States, 136 S. Ct. 2243 (2016), Immigration Judges may consider or “peek” at an alien’s conviction record only to discern whether statutory alternatives define “elements” or “means,” provided State law does not otherwise resolve the question.”

PANEL: Appellate Immigration Judges Pauley, Greer, Malphrus

OPINION BY: Judge Pauley

CONCURRING OPINION BY: Judge Malphrus

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

This case is unusual because BIA Judges seldom file “separate opinions” in published decisions these days.

In his concurring opinion, Judge Garry D. Malphrus appears to be both questioning whether the Supreme Court’s approach to statutory “divisibility” analysis comports with congressional intent in immigration matters and inviting Congress to perhaps change the INA so that the BIA and the Immigration Judges could examine the facts of the case, as set forth in the record of conviction, to determine whether the individual should be removed. Judge Malphrus says in his conclusion:

“Here, we must presume that the respondent committed the least of the acts criminalized within the range of conduct punishable under his statute of conviction. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013). This is true even though the respondent’s plea agreement indicates that he did more—specifically, that he knowingly discharged a firearm at another, and thus he committed an aggravated felony crime of violence. See id.

The approach to divisibility required by Descamps and Mathis will result in immigration proceedings being terminated for many aliens who have committed serious crimes in the United States. See, e.g., Ramirez v. Lynch, 810 F.3d 1127, 1134–38 (9th Cir. 2016) (reversing the order of removal upon concluding that the California statute proscribing felony child abuse was not divisible, and thus it was improper to consider the conviction records in determining whether the alien’s conviction constituted an aggravated felony crime of violence). [footnote omitted]. It is for Congress to determine whether this approach is consistent with its intent regarding the immigration consequences of such criminal conduct.”

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

Another observation: How could an unrepresented respondent charged under this section possibly defend himself consistent with due process when the law is so complex and convoluted. This particular respondent was fortunate enough to have a lawyer, and as we can see, he was able to achieve a favorable result. But, recent studies have shown that the overwhelming number of respondents in detention (as individuals charged as “agfels” must be) must proceed without counsel. http://wp.me/p8eeJm-Gv

PWS

04-24-17

Is Jeff Sessions About To Go After Tax Credits For U.S. Citizen Kids To Fund “The Wall?” — Sessions’s Motives Questioned — CA Girds For Legal Battle With USDOJ! — Trump Administration Fuels Federal Civil Litigation Bonanza!

http://theweek.com/speedreads/694129/sessions-says-mexicans-pay-border-wall-way-another

Bonnie Kristian reports in TheWeek.com:

“We’re going to get paid for it one way or the other,” Attorney General Jeff Sessions said of President Trump’s proposed border wall while speaking with ABC’s George Stephanopoulos on Sunday. After raising the issue, Stephanopoulos asked if Sessions has any evidence Mexico will fund construction, as Trump repeatedly promised on the campaign trail.

Sessions conceded he does not expect the government of Mexico to “appropriate money,” but maintained the United States has other options to get money from Mexicans. We could “deal with our trade situation to create the revenue,” he suggested, or, “I know there’s $4 billion a year in excess payments,” Sessions continued, “tax credits that they shouldn’t get. Now, these are mostly Mexicans. And those kind of things add up — $4 billion a year for 10 years is $40 billion.”

Sessions appears to be referencing a 2011 audit report Trump also cited while campaigning. As Politifact explains, the report said that in 2011, $4.2 billion in child tax credits was paid to people filing income taxes using an Individual Taxpayer Identification Number (ITIN) instead of a Social Security number. Some of these filers are illegal immigrants, but many are legal foreign workers, and the audit did not say how many are Mexican.

“The vast majority of that $4.2 billion, the filer may be undocumented, but you have to have a child to receive it,” said Bob Greenstein of the Center on Budget and Policy Priorities. “And the children are overwhelmingly U.S. citizens.” Watch an excerpt of Sessions’ remarks below. Bonnie Kristian”

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

Go to the above link to see the ABC clip that Kristian references at the end of her article.

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

Reaction from Daily Kos wasn’t very subtile. Here’s Gabe Ortiz’s “headliner:”

“Racist-as-all-hell Sessions: Child tax credits going to ‘mostly Mexicans’ can pay for the wall”

Read Ortiz’s article here:

http://www.dailykos.com/story/2017/04/24/1655786/-Racist-as-all-hell-Sessions-Tax-credits-to-mostly-Mexicans-can-pay-for-the-wall

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

Ortiz isn’t the only one to publicly “call out” Sessions’s motivation for his almost daily attacks on immigrants. Here’s what California State Senate leader Kevin de Leon (D-Los Angeles) had to say, as reported in the L.A. Times: “It has become abundantly clear that Atty. Gen. [Jeff] Sessions and the Trump administration are basing their law enforcement policies on principles of white supremacy — not American values. . . .”

Read the full L.A. Times article, including Republican reaction to de Leon’s remarks, here:

http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-california-senate-leader-says-white-1492803106-htmlstory.html?utm_source=Politics&utm_campaign=b41d4376f3-EMAIL_CAMPAIGN_2017_01_03&utm_medium=email&utm_term=0_db59b9bd47-b41d4376f3-81147225

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

De Leon was not the only California public official to strike back at Sessions’s attack on so-called “Sanctuary cities” last week. As reported in the L.A. Times, in a “Battle of the AGs:”

“[California Attorney General Xavier] Becerra said on Friday that threats to withhold federal funds from states and cities that limit cooperation with federal immigration authorities are reckless and undermine public safety.

. . . .

Becerra said Sunday that California is ready to fight any attempt to withhold federal funds.

“Whoever wants to come at us, that’s hostility, we’ll be ready,” Becerra said. “We’re going to continue to abide by federal law and the U.S. Constitution. And we’re hoping the federal government will also abide by the U.S. Constitution, which gives my state the right to decide how to do public safety.”

The state attorney general was skeptical about comments by President Trump in recent days that so-called Dreamers —young immigrants brought to this country illegally by a parent — will not be targeted for immigration enforcement.

“It’s not clear what we can trust, what statement we can believe in, and that causes a great deal of not just anxiety, but confusion — not just for those immigrant families, but for our law enforcement personnel,” Becerra said.

He also denounced the Trump proposal to build a wall at the U.S.-Mexico border as a “medieval solution” to immigration issues, adding that neither U.S. taxpayers nor Mexico want to pay for the proposal.”

Read there full report here:

http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-u-s-atty-gen-sessions-disputes-1492964508-htmlstory.html?utm_source=Politics&utm_campaign=b41d4376f3-EMAIL_CAMPAIGN_2017_01_03&utm_medium=email&utm_term=0_db59b9bd47-b41d4376f3-81147225

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

I reported some time ago that California was “lawyering up” by hiring none other than former U.S. Attorney General Eric Holder to advise on litigation strategies to resist the Fed’s efforts to punish “sanctuary jurisdictions.” Here’s a link to my earlier blog: http://wp.me/p8eeJm-4w.

Lots of Attorneys General and former Attorneys General could be involved in this one before it’s over! As I’ve said from the beginning, whatever he might do for U.S. workers, President Trump is a huge boon to the legal industry! If you doubt this, just go on over to TRAC Immigration and see how civil immigration litigation has increased dramatically under Trump. http://trac.syr.edu/immigration/reports/467/ . (Thanks to Nolan Rappaport for forwarding this to me!)

Instead of solving legal problems, it appears that A.G. Jeff “Gonzo-Apocalypto” Sessions is fixated on going to war with the “other America” that doesn’t share his and Trump’s negative views of immigrants. Stay tuned!

PWS

04-24-17

Trump “Channels A.R.” — Tells “Dreamers” To R-E-L-A-X, Nothing Bad Is Going To Happen — But, Should They Believe Him? — Sessions Has A Different Message: Nobody Is Protected!

https://apnews.com/85c427bf25c747ce85d837caccd90648

Julie Pace reports for AP:

“WASHINGTON (AP) — Young immigrants brought to the U.S. as children and now here illegally can “rest easy,” President Donald Trump said Friday, telling the “dreamers” they will not be targets for deportation under his immigration policies.

Trump, in a wide-ranging interview with The Associated Press, said his administration is “not after the dreamers, we are after the criminals.”

The president, who took a hard line on immigration as a candidate, vowed anew to fulfill his promise to construct a wall along the U.S.-Mexico border. But he stopped short of demanding that funding for the project be included in a spending bill Congress must pass by the end of next week in order to keep the government running.

. . . .

As a candidate, Trump strongly criticized President Barack Obama for “illegal executive amnesties,” including actions to spare from deportation young people who were brought to the country as children and now are here illegally. But after the election, Trump started speaking more favorably about these immigrants, popularly dubbed “dreamers.”

On Friday, he said that when it comes to them, “This is a case of heart.”

This week, attorneys for Juan Manuel Montes said the 23-year-old was recently deported to Mexico despite having qualified for deferred deportation. Trump said Montes’ case is “a little different than the dreamer case,” though he did not specify why.

The Deferred Action for Childhood Arrivals program was launched in 2012 as a stopgap to protect some young immigrants from deportation while the administration continued to push for a broader immigration overhaul in Congress.

Obama’s administrative program offered a reprieve from deportation to those immigrants in the country illegally who could prove they arrived before they were 16, had been in the United States for several years and had not committed a crime since being here. It mimicked versions of the so-called DREAM Act, which would have provided legal status for young immigrants but was never passed by Congress.

DACA also provides work permits for the immigrants and is renewable every two years. As of December, about 770,000 young immigrants had been approved for the program.”

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

Meanwhile, back at the ranch, “Fear Monger in Chief” Jeff Sessions had a somewhat less reassuring message for young people and their families:

As reported by Ted Hesson in Politico:

“Attorney General Jeff Sessions could not promise that so-called Dreamers, or participants in the Deferred Action for Childhood Arrivals program, will not be deported, when he was interviewed Wednesday morning on Fox News.

Sessions fielded questions from host Jenna Lee about an undocumented immigrant who claims he was deported to Mexico despite his enrollment in the program, which was created through administrative action during the Obama administration.

The program allows undocumented immigrants brought to the U.S. at a young age to apply for deportation relief and work permits. In a federal lawsuit filed Tuesday, Juan Manuel Montes, a 23-year-old enrollee in the program, claimed he was sent to Mexico in February despite active DACA status.

“DACA enrollees are not being targeted,” Sessions said on Fox. “I don’t know why this individual was picked up.” But when pressed, Sessions said, “The policy is that if people are here unlawfully, they’re subject to being deported.”

“We can’t promise people who are here unlawfully that they’re not going to be deported,” Sessions added.”

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

Neither Trump nor Sessions, or for that matter anyone else in the Trump Administration, has much credibility on anything, particularly immigration policy. In reality, however, it appears that very few, if any, “Dreamers” have actually been removed.

The facts of the “Montes case” are still rather murky. He appears to have reentered the U.S. illegally, which generally would subject even a green card holder to removal. Montes reportedly is asserting an earlier “illegal removal” to Mexico. But, even if proved, that wouldn’t necessarily justify an illegal return. We’ll have to see how this case “plays out” in Federal Court, before the same judge who had the “Trump University” case.

But, the situation seems unusual enough that I would not draw any conclusion that it represents a policy change. Indeed, most “Dreamers” of whom I am aware do not actually have “final orders of removal.”

If they had pending U.S. Immigration Court cases, such cases were “administratively closed” and removed from the docket. Removal of such a “former Dreamer” would require the DHS to submit a “motion to re-calendar” to the U.S. Immigration Judge.

Once re-calendared, the case would proceed in the “normal manner,” whatever that might mean in the zany world of today’s U.S. Immigration Court. Generally, however, if the “former Dreamer” were not detained, he or she would go to the “end” of the 542,000 pending cases.

In most Immigration Courts, that would mean an “Individual Hearing” date after 2020, the end of Trump’s first term. And, as I have pointed out before, absent some “smart reforms” of the Immigration Court by Congress or the Administration to restore sanity and an emphasis on due process, the 125 new U.S. Immigration Judges proposed by Sessions will not eliminate the docket backlog at any time in the near future.http://wp.me/p8eeJm-Jf

However, notwithstanding what sometimes is called “Docket TPS,” former Dreamers could face another major obstacle: lack of “employment authorization” which was included in the DACA program. Without such authorization, continuing employment could cause major legal problems for both former Dreamers and their U.S. employers.

One possible solution would be for the “former Dreamer” to file an application for immigration benefits that carries with it the opportunity to qualify for a new employment authorization. The most likely application is probably asylum, although some who have never previously been in Removal Proceedings might also qualify to file for “cancellation of removal” or other forms of regularization of status.

Indeed, many of the dreamers who were on my docket when DACA was granted by USCIS had asylum applications pending, either on their own or as a dependent on a parent’s or spouse’s application, at the time the case was “administratively closed” and removed from my docket. The complexity of individual situations makes the prospect of mass removal of Dreamers even more unlikely.

Stay tuned!

PWS

04-22-17

THE ATLANTIC: Priscilla Alvarez Exposes Nation’s Largest Failing Court System: U.S. Immigration Court — Quoting Me: “A fully trained judge, which new judges won’t be, can do about 750 cases a year. So 125 new judges could do fewer than 100,000 cases a year once they’re up and trained, . . . .” — No Amount Of Resources Can Overcome Screwed Up Priorities, Political Meddling, & Management Problems Inherent In The Current “Designed To Fail” System — Due Processes Takes A Back Seat!

https://www.theatlantic.com/politics/archive/2017/04/trump-immigration-court-ice/523557/

Priscilla writes in an article that also contains quotes from highly respected DC area immigration practitioner Dree Collopy (emphasis added in below excerpt):

“Responding to the 2014 migrant wave, the Obama administration temporarily redirected immigration judges to the southern border to preside over removal proceedings and bond hearings, and review whether any individuals’ claims of fear of persecution were credible. Immigration cases being heard in other parts of the United States had to be put on hold, said Jeremy McKinney, an attorney and board member of the American Immigration Lawyers Association. “The surge was the first time we saw a deployment of immigration judges to the border, resulting in non-detained dockets in the United States getting much worse,” McKinney said, referring to cases that do not require detention. “That situation already put a strain on the interior immigration courts.”

The Justice Department, which hires judges for immigration courts, was also tied up by the budget sequester from 2011 to 2014, so there weren’t enough judges to try cases, he added. Over time, the backlog grew from around 327,000 cases at the end of the 2012 fiscal year to half a million in 2016.

Judge Paul Schmidt, who was appointed in 2003 by Attorney General John Ashcroft, had around 10,000 immigration cases pending when he left his job last year. “When I retired, I was sending cases to 2022,” he told me. Schmidt, who primarily served in the Arlington Immigration Court in northern Virginia, was assigned to those not considered a priority—say, people who had traffic violations. The current national backlog, Schmidt said, largely consists of cases like the ones he handled.

The Trump administration has taken steps that could quicken the courts’ work. For one, ICE officers can now deport someone immediately, without a hearing, if they fit certain criteria and have lived in the United States for up to two years. Under the last administration, that timeline was up to two weeks, and the individual needed to be within 100 miles of the border.

Attorney General Jeff Sessions also announced, in a speech on the Arizona-Mexico border, that the Department of Justice will add 125 immigration judges to the bench over the next two years: 50 this year and 75 in 2018. He urged federal prosecutors to prioritize the enforcement of immigration laws. “This is a new era. This is the Trump era,” Sessions said. “The lawlessness, the abdication of the duty to enforce our immigration laws, and the catch-and-release practices of old are over.”

“You have to give Sessions credit for this,” Schmidt said. “He took note of the 18-to-24-month cycle for filling judges and said he was going to streamline that.” The math still doesn’t exactly work out, however. “A fully trained judge, which new judges won’t be, can do about 750 cases a year. So 125 new judges could do fewer than 100,000 cases a year once they’re up and trained,” he said. Factor in the fact that it takes up to two years to become “fully productive,” he said, and altogether, it could take five to six years for the 125 new judges to cut down the backlog.

All the while, new cases will continue to come in as the administration enforces its new, broader policies on deportation. Newly detained individuals will be prioritized over other cases, which will be pushed further down the road. “I think it has a particular impact on asylum-seekers, because the sense of being in limbo really seems to prolong their trauma and their sense of statelessness that they have,” said Dree Collopy, an immigration lawyer in Washington, D.C. And hearing delays can affect asylum-seekers’ credibility, as well as evidence to support their cases: “Over time, especially when trauma is involved, memories begin to fade.” If a person can’t testify until years after entering the United States, “that can obviously cause problems.”

When Collopy first started practicing immigration law in 2007, cases generally would take about a year or two to complete. That’s no longer the case: “Now, it’s taking four or five years on average,” she told me. With the Trump administration rounding up undocumented immigrants quicker than courts can process cases, that delay isn’t likely to shorten.”

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

Read Priscilla’s full article at the above link.

A “smart” strategy would address the 542,000 pending cases before piling on new priorities. Under a more rational policy, those in the current backlog with equities in the U.S., “clean records,” or only minor criminal histories, could be offered “prosecutorial discretion” (“PD”) and taken off the Immigration Court’s docket to make room for higher priority cases.

However, instead of encouraging more use of PD, which was starting to make some difference by the end of the Obama Administration, the Trump Administration has basically made “everything” a potential “priority.” Moreover, as a “double whammy” the Administration has basically “disempowered” those at DHS who know the Immigration Court system the best, the local ICE Assistant Chief Counsel, from freely exercising PD to take non-criminal cases off the docket.

Ironically, at the same time, DHS appears to be giving line enforcement agents the “green light” to arrest just about anyone who might be removable for any reason. However, the line agents unlikely to understand the limitations of the current Immigration Court system and what is already “on the docket.”

The Immigration Court system is basically the opposite of most other law enforcement systems where prosecutors, rather than policemen or agents, determine what cases will be brought before the court. And, in most functioning court systems, the individual sitting judges control their own dockets, rather than having priorities set by politically-driven non-judicial bureaucrats in other places. It certainly appears to be a prescription for disaster. Stay tuned!

PWS

04-21-17

NOTE: In an earlier version of this article I “blew” Priscilla’s name by calling her “Patricia.” My apologies. I’ve now corrected it.

PRECEDENT: BIA Gives Guidance On Admin Closing & Avetisyan — PD Should Not Be A Factor Unless Parties Agree — Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017)

https://www.justice.gov/eoir/page/file/958526/download

BIA Headnotes:

“(1) The primary consideration for an Immigration Judge in evaluating whether to administratively close or recalendar proceedings is whether the party opposing administrative closure has provided a persuasive reason for the case to proceed and be resolved on the merits. Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012), clarified.

(2) In considering administrative closure, an Immigration Judge cannot review whether an alien falls within the enforcement priorities of the Department of Homeland Security, which has exclusive jurisdiction over matters of prosecutorial discretion.”

Panel: Appellate Immigration Judges Malphrus, Mullane, & Creppy

Opinion by Judge Malphrus.

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

While at first blush it might appear that the unrepresented respondent “won” this appeal, the victory is likely to be phyrric at best.

There was a time (now apparently gone) when the DHS gave individual Assistant Chief Counsel broader authority to offer prosecutorial discretion (“PD”) in cases that were not enforcement priorities.

In Arlington, where I was an Immigration Judge, the Assistant Chief Counsel were very reasonable and fair, and usually agreed to “short docket” hearings on well-documented asylum cases that fell squarely within the BIA precedents. Consequently, when they offered “PD” in an asylum case it usually was a “signal” that they saw the equities in the case, but also had difficulties with the asylum application that would require them to fully litigate the case and probably appeal a grant. Since the Assistant Chief Counsel in Arlington did not normally contest asylum cases unless there were significant proof or legal issues involved, their views had great credibility with both the private bar and with me.

Generally, in such situations I “suggested” that counsel accept the proffer of PD and continue to work with the Assistant Chief Counsel on overcoming her or his problem with the asylum case. If the parties eventually were able to reach agreement that the case could be heard on the “short docket” (30 minutes or less), I would be happy to restore the case to the docket upon joint motion. Usually, counsel got my “message.”

The few cases that went forward after “PD” had been turned down by counsel usually proved to be “losers” for the respondent, either before me or before the BIA. In a couple of cases, where I could see the respondent’s case “going south in a hurry,” I simply stopped the hearing and granted the DHS motion for Administrative Closing for PD over the respondent’s objection. I don’t think anyone ever appealed. But, under Matter of W-Y-U-, I probably could not have done that.

I suspect that when this unrepresented respondent eventually gets his wish and has a merits asylum hearing, he will lose. At that point, the DHS, even prior to the Trump Administration, would be unlikely to exercise PD, even if there were outstanding equities.

Sometimes in litigation you get what you ask for, and later wish you hadn’t asked.

PWS

04-19-17

HERE IT IS! — The “Gibson Report” For April 17, 2017!

Gibson Report — April 17, 2017

Thanks again to Elizabeth Gibson, former Arlington Immigration Court Intern and “Georgetown Law RLP’er” now Immigrant Justice Corps Fellow/Staff Attorney, Immigrant Protection Unit, New York Legal Assistance Group!

PWS

04-17-17

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