Litigation – Page 111 – immigrationcourtside.com

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.”

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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

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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.”

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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”

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

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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

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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

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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

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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.”

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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.”

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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.”

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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.

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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

PRECEDENT: BIA Finds “Assault with a deadly weapon or force likely to produce great bodily injury under California law is categorically a crime involving moral turpitude.” — Matter of Wu, 27 I&N Dec. 8 (BIA 2017)

Here’s the link to the full opinion:

https://www.justice.gov/file/957431/download

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BIA PANEL: Appellate Immigration Judges Malphrus, Mullane, & Creppy

OPINION BY: Judge Malphrus

PWS

04-14-17

Former State Department Visa Guru Jeff Gorsky Says Travel Ban Exceeds President’s Statutory Authority — “No Precedent” For This Type Of Overly Inclusive Use!

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/archive/2017/04/11/jeffrey-gorsky-an-alternative-legal-argument-against-trump-39-s-travel-ban.aspx?Redirected=true

From Lexis NexIs:

There is, however, another legal argument against the travel ban that does not require looking at evidence outside of the judicial record: The scope of the ban on its face is overly broad and exceeds the president’s legal authority under the Immigration and Nationality Act. Although the plaintiffs in the Hawaii case posed this argument, at this point none of the courts that have ruled on the legality of the executive order have analyzed this issue. The statutory authority for the travel ban derives from INA Section 212(f), 8 USC 1182(f), which authorizes the president by proclamation to suspend the entry or impose restrictions on the entry of any aliens or class of aliens to the United States. This is not a plenary grant of authority, but requires a finding that the entry of such aliens is “detrimental to the interests of the United States.” A ban that covers an entire nationality based on a concern that a few of those nationals pose a security or criminal threat to U.S. interest exceeds the statutory authority because there is no evidence or reasonable basis to believe that the entry of some or most of the nationals in the ban would be detrimental to U.S. interests.

During my 30-year career at the U.S. Department of State, I was involved in numerous 212(f) determinations. All were supported by carefully drafted memos and cited specific evidence of detriment to U.S. interests. The Trump travel bans do not. There is no dispute that the president has longstanding authority to deny or restrict the admission of certain aliens by proclamation; it is one of the oldest immigration provisions in U.S. law. The first law to authorize the president to limit immigration based on proclamation was the Alien Enemies Acts of 1798, one of the Alien and Sedition Acts enacted in the John Adams administration. That act empowered the president by public proclamation during a state of war to exclude enemy aliens as “necessary for public safety”.

This authority was not invoked until the 20th century, with the advent of World War I. An act of May 22, 1918, provided for the president to establish by proclamation immigration restrictions during a time of war for the purpose of public safety. Based on the Alien Enemies Act and the 1918 act, President Woodrow Wilson made a number of proclamations involving enemy aliens. While not a total ban on admission of aliens with Austrian-Hungarian nationality, these proclamations significantly restricted the admission of these enemy aliens.

This authority was revived during World War II, following the declaration of a national emergency on May 27, 1941. An amendment to the act provided that the president might, upon finding that the interests of the United States required it, impose additional restrictions and prohibitions on the entry into and departure of persons from the United States during the national emergency. This provision was upheld by the Supreme Court in the case United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537.

The 1950 “Report of the Senate Judiciary Committee,” the primary background document on the McCarran-Walter Act of 1952, discussed the history of the enemy aliens provisions at length, and concluded that this was a necessary authority. This authority was carried over into Section 212(e) (now f) and Section 215 of the INA.

In the past 35 years, this authority has been used 43 times but never as broad as with Trump’s executive orders. Most actions were limited to officials of foreign governments who engaged in specified policies considered detrimental to U.S. foreign policy or other U.S. interests — not blanket bans based solely on nationality.

The current travel ban, therefore, is unprecedented in its scope. Even if it is accepted that the specified countries pose a threat to the United States, the inclusion in the ban of all nationals from those countries is not reasonable, since there is no evidence that the admission of many or most such aliens would be detrimental to U.S. interests. For example, the ban includes babies and minor children, although they have neither the physical or legal capacity to commit acts of terrorism or criminality that would be detrimental to U.S. interests. While the executive order allows for a case-by-case discretionary waiver for minors, the availability of a discretionary waiver requiring a finding that the admission of such alien “would be in the national interest” does not cure the underlying lack of legal authority under 212(f) to bar persons such as young children who do not pose a credible threat to U.S. interests.

If the president can bar all nationals of a country based on speculative and vague concerns, absent any evidence relating to the specific individual who is barred admission, the president would have virtually absolute authority to bar all aliens from admission to the U.S. Every country in the world, including countries that would not normally be considered to pose a security threat to the U.S., like Japan and the United Kingdom, have some nationals who could theoretically pose a terrorist or criminal threat that could be used as a pretext to ban all nationals from that country. Such sweeping plenary authority does not exist in any other portion of the INA. In the over 200 years in which the president has had authority to limit the admission of aliens by proclamation, no president has ever before claimed this broad an authority.”

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In prior lives, I had the pleasure of working with Jeff on a number of issues. Smart guy, nice guy, always very helpful. Doesn’t mean he’s right or wrong on this, but his point makes sense to me.

PWS

04-13-17

POLITICO: Immigration Advocates Find Area Of Agreement With AG Sessions: Plan To Boost Troubled Immigration Courts — But, Concerns Remain That Judicial Hiring Could Again Be Politicized — Those Who Care About Due Process Should Carefully Watch The Results Of The “Streamlined” Judicial Vetting System!

http://www.politico.com/agenda/story/2017/04/the-one-area-jeff-sessions-and-immigration-advocates-agree-000411

Danny Vinik reports:

“Attorney General Jeff Sessions directed attorneys from the Department of Justice on Tuesday to increase the enforcement of U.S. immigration laws, including laws against unlawful entry, human smuggling and identity fraud. It was yet another escalation of the Trump administration’s crackdown on undocumented immigrants, and immigrant-rights groups blasted the policy changes as ineffective and potentially illegal.

For all their opposition to the Trump administration’s immigration agenda, though, advocates actually back one of the new policies: the increased support for the immigration courts.

Sessions announced that DOJ will seek to add 75 immigration judges to the courts over the next year and will implement reforms to speed up the hiring process. These changes address a real problem with the immigration system—a nearly 600,000-case backlog at the immigration courts—and the move was a rare occasion in which advocates applauded the administration, though they were concerned how Sessions would implement the changes.

“We are very happy at the notion of increasing the amount of immigration judges and being able to address the backlog,” said Jennifer Quigley, an immigration expert at Human Rights First. “But as a senator and now as AG, we’ve always had concerns that Sessions’ motivation is to increase the number of deportations.”

. . . .

Experts largely blame Congress for the backlog, since lawmakers significantly increased resources for immigration enforcement without a commensurate increase in funding for the immigration courts. But in recent years, Congress has increased the number of authorized immigration judges, most recently in 2016 when it provide funding for an additional 55 judges, raising the authorized number from 319 to 374. However, even with enough money, EOIR has struggled to quickly hire judges, as the hiring process can take more than a year and retirements have created additional openings. Currently, there are 312 immigration judges nationwide, a significant increase over a year ago but still far below authorized levels. Trump’s budget blueprint proposed funding 449 judges in fiscal 2018, a significant increase that could find bipartisan support on Capitol Hill.

More important than the request for additional judges, however, may be the hiring reforms. EOIR and DOJ both declined to comment on how the Justice Department was reforming the hiring process for immigration judges. Speaking to border patrol personnel at the U.S.-Mexico border Tuesday, Sessions provided few details. “Today, I have implemented a new, streamlined hiring plan,” he said. “It requires just as much vetting as before, but reduces the timeline, reflecting the dire need to reduce the backlogs in our immigration courts.”

Advocates worry that the hiring process could become politicized, with judges brought on who want to implement specific policies instead of fairly enforcing the law. “The idea of onboarding judges quicker and having more judges is a great thing,” said Joshua Breisblatt, a policy analyst at the American Immigration Council. “But we need to see what it looks like, that it won’t be political.” The language in the budget blueprint was particularly concerning, advocates said, because it seemed to indicate that the courts are a tool for increasing deportations rather than a neutral arbiter of immigration claims.

“We were not happy with the way it was framed,” said Quigley.

It’s not an unrealistic concern. Immigration judges are technically employees of the Department of Justice, a structure that inherently creates a conflict of interest, since their job is to rule on immigration cases that are pushed by DOJ prosecutors, whereas most of the judiciary is independent. Advocates and the immigration judges union have long pushed to remove the immigration courts from the DOJ. And during the Bush administration, a DOJ investigation found that several immigration judges received their jobs due to their political connections, a scandal that serves as a warning today.

Despite those concerns, experts hope that Sessions and EOIR will undertake the hiring process in a timely and impartial manner, filling the bench with qualified judges who have enough time to understand the cases before them. As Sandweg said, “It’s something that’s long overdue.” In such a world, the additional judges could reduce the backlog, increasing the number of deportations, while spending more time on complicated asylum cases, giving asylum seekers more time to fairly present their cases and receive careful consideration.

In such a world, it’s possible that both the Trump administration and advocates could come out happy—a scenario almost impossible to imagine today.”

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Sessions is certainly right to address the ridiculous 18-24 month hiring cycle for U.S. Immigration Judges, and should get credit for making reform one of his top priorities. He also should be credited with focusing attention on the 542,000 case backlog, something that the Obama Administration seemed to have preferred to ignore as it mushroomed in front of their eyes. (As I said in this blog yesterday, I’m not convinced that even the 125 additional Immigration Judges proposed by Sessions over the next two years will effectively address a pending docket of that magnitude: http://wp.me/p8eeJm-FQ. But, it’s a start.)

However, the devil is in the details. And, the details of Session’s “streamlined judicial hiring” have not been made public, although the Attorney General said they were “implemented” on April 11.

Remarkably, I have learned that as of today, April 12, both EOIR Management and the union representing U.S. Immigration Judges (of which I am a retired member) were “totally in the dark” about the contents of the plan. That means it was “hatched’ at the DOJ without any meaningful input from those in the U.S. Immigration Court system or the court’s “stakeholders” — those representing the interests of the hundred of thousands of individuals with cases currently before the court or who might come before the court in the future. That’s troubling. It also appears that members of Congress had not been briefed on the hiring changes.

What’s even more troubling is that it’s not just about the inexcusably slow and bureaucratic hiring practices of the DOJ and EOIR. It’s also about results. During the Obama Administration, although officials claimed that the system was “merit-based” the results suggest that it was anything but.

According to informed sources who have done the math, an amazing 88% of those selected were from government backgrounds and 64% were from ICE, which prosecutes cases before the Immigration Court. I have had reports of numerous superbly qualified individuals from the private sector whose applications were rejected or put on indefinite hold without any explanation.

So, it looks like the many-layered, glacially slow, inefficient, overly bureaucratized process used by the DOJ and EOIR was actually an elaborate “smokescreen” for a system that was heavily weighted toward selecting “government insiders” and against selecting those who had gained experience by representing immigrants or advocating for their rights. The “Appellate Division” of the U.S. Immigration Court, the BIA — which is supposed to be the “top administrative court” in immigration — hasn’t had a judge appointed from outside the Government since 2000, more than 16 years and two full administrations ago!

Based on performance to date, I’m not particularly optimistic that AG Jeff Sessions is going to make the changes necessary to establish a true merit-based system for Immigration Judge hiring that, in turn, will create an immigration judiciary representing more diverse backgrounds and experiences. But, hope springs eternal, and I’d be happy if he proves my skepticism to be wrong.

Only time will tell. But, the quality and composition of the “Sessions era” immigration judiciary is something that everyone who cares about due process and justice in America should watch closely.

PWS

04/12/17

“THE GIBSON REPORT” — From “Rolling Stone” To The “Ft. Worth Star Telegram” — Immigration Links For All!

GibsonRpt041017

For those who don’t know her, the amazing Elizabeth Gibson is one of my all-star Georgetown Law Refugee Law & Policy students, a distinguished alum of the Arlington Immigration Court intern program, and a former Judicial Law Clerk at the New York Immigration Court. She now works as an Immigrant Justice Corps Fellow/Staff Attorney with the Immigrant Protection Unit at the New York Legal Assistance Group.

Elizabeth was good enough to make her weekly news link update for April 10, 2017 available to us. In reformatting it for the blog, I might have lost the “connectivity” for several links. However, I’m sure you will find it an amazing resource. Great job Elizabeth! Thanks for all you do!

PWS

04-10-17

U.S. Judge Stiffs DOJ, Enters Consent Decree In Baltimore Police Case — Sessions Remains Skeptical!

https://www.washingtonpost.com/e8184a66-1c21-11e7-8598-9a99da559f9e_story.html?utm_term=.4b449e499221

Juliet Linderman (AP) reports in the Washington Post:

“BALTIMORE — A federal judge has approved an agreement negotiated under the Obama administration to overhaul the troubled Baltimore police force, sweeping aside objections from the Trump Justice Department.

President Donald Trump’s attorney general, Jeff Sessions, promptly warned that the agreement may result in “a less safe city.”

U.S. District Judge James Bredar signed the so-called consent decree Friday, a day after a hearing to solicit comments from Baltimore residents, calling the plan “comprehensive, detailed and precise.”

He denied a request to delay the signing to give the Trump administration more time to review the agreement. At Thursday’s hearing, a Justice Department attorney expressed “grave concerns” about the plan, aimed at rooting out racist practices.

The consent decree was negotiated during the closing days of the Obama administration after a federal investigation found rampant abuse by Baltimore police, including unlawful stops and use of excessive force against black people.

The investigation was prompted by the 2015 death of Freddie Gray, a 25-year-old black man whose neck was broken during a lurching ride in the back of a police van, where he had been left unbuckled, his hands and legs shackled. Gray’s death touched off the worst rioting in Baltimore in decades.

In a memo made public earlier this week, the Trump Justice Department signaled that it may retreat from the consent decrees that have been put in place in recent years in such cities as Cleveland; Ferguson, Missouri; Miami; and Newark, New Jersey.

Sessions said in a statement Friday that the Baltimore agreement shows “clear departures from many proven principles of good policing that we fear will result in more crime.”

“The decree was negotiated during a rushed process by the previous administration and signed only days before they left office,” Sessions said. “While the Department of Justice continues to fully support police reform in Baltimore, I have grave concerns that some provisions of this decree will reduce the lawful powers of the police department and result in a less safe city.”

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While the consent decree process was probably accelerated by the Obama Administration’s accurate belief that the Trump Administration would be unlikely to uphold civil rights, particularly for African Americans, the decree was based on a detailed 163 page report that was accepted and incorporated by U.S. District Judge Bredar. Here’s a link to that report: https://www.justice.gov/opa/file/883366/download.

By contrast, Session’s memorandum calling for DOJ review of consent decrees, among other things, was less than two pages, phrased in conclusory stock language, and contained no factual basis whatsoever for the review. Nor has Sessions ever explained what the problem might be with the detailed report prepared as a result of an investigation by his predecessor, Attorney General Loretta Lynch.

Remarkably, Sessions obstinance comes in the same week that a court-appointed monitor found that a similar consent decree in Seattle had resulted in a dramatic reduction in incidents of police use of force against citizens while increasing neither crime nor injuries to police officers. See prior blog here: http://wp.me/p8eeJm-El.

PWS

04/09/17

4th Cir. Judges File Separate Opinion Praising Bravery Of Transgender Teen — Take Shot At Those On The “Wrong Side Of History!”

Senior Judge Davis, joined by Judge Floyd said this in a published separate opinion:

“Our country has a long and ignominious history of discriminating against our most vulnerable and powerless. We have an equally long history, however, of brave individuals—Dred Scott, Fred Korematsu, Linda Brown, Mildred and Richard Loving, Edie Windsor, and Jim Obergefell, to name just a few—who refused to accept quietly the injustices that were perpetuated against them. It is unsurprising, of course, that the burden of confronting and remedying injustice falls on the shoulders of the oppressed. These individuals looked to the federal courts to vindicate their claims to human dignity, but as the names listed above make clear, the judiciary’s response has been decidedly mixed. Today, G.G. adds his name to the list of plaintiffs whose struggle for justice has been delayed and rebuffed; as Dr. King reminded us, however, “the arc of the moral universe is long, but it bends toward justice.” G.G.’s journey is delayed but not finished.

G.G.’s case is about much more than bathrooms. It’s about a boy asking his school to treat him just like any other boy. It’s about protecting the rights of transgender people in public spaces and not forcing them to exist on the margins. It’s about governmental validation of the existence and experiences of transgender people, as well as the simple recognition of their humanity. His case is part of a larger movement that is redefining and broadening the scope of civil and human rights so that they extend to a vulnerable group that has traditionally been unrecognized, unrepresented, and unprotected.

. . . .

G.G.’s lawsuit also has demonstrated that some entities will not protect the rights of others unless compelled to do so. Today, hatred, intolerance, and discrimination persist — and are sometimes even promoted — but by challenging unjust policies rooted in invidious discrimination, G.G. takes his place among other modern-day human rights leaders who strive to ensure that, one day, equality will prevail, and that the core dignity of every one of our brothers and sisters is respected by lawmakers and others who wield power over their lives.”

The full opinion is well worth a read. Here’s a link: 161733R1.P-4th Circuit GG

Judge Davis incorporates this poem,

Famous by N.S. Nye:

The river is famous to the fish.

The loud voice is famous to silence, which knew it would inherit the earth before anybody said so.

The cat sleeping on the fence is famous to the birds watching him from the birdhouse.

The tear is famous, briefly, to the cheek.

The idea you carry close to your bosom is famous to your bosom.

The boot is famous to the earth, more famous than the dress shoe, which is famous only to floors.

The bent photograph is famous to the one who carries it and not at all famous to the one who is pictured.

I want to be famous to shuffling men who smile while crossing streets, sticky children in grocery lines, famous as the one who smiled back.

I want to be famous in the way a pulley is famous,
or a buttonhole, not because it did anything spectacular, but because it never forgot what it could do.

Here’s an article from yesterday’s Washington Post explaining the context of the 4th Circuit’s procedural decision and why the published, signed separate opinion is unusual.

https://www.washingtonpost.com/local/public-safety/judges-hail-transgender-teen-gavin-grimm-as-human-rights-leader/2017/04/07/ade47f12-1bc8-11e7-bcc2-7d1a0973e7b2_story.html?utm_term=.11ce2b2d3a58

The case is G.G. v. Gloucester County School Board.

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

The Trump Administration’s attacks on vulnerable individuals such as Muslims, migrants, and now transgender students have given rise to an interesting new phenomenon in the U.S. Courts of Appeals: separate published opinions vigorously commenting on or dissenting from what normally would be routine, unsigned, unpublished, barely noticed, procedural orders.

Another good example was the recent spate of published opinions dissenting and concurring with the granting of an uncontested motion by the Government to dismiss the appeal from the TRO in State of Washington v. Trump (“Travel Ban 1.0”) which I discussed in an earlier blog: http://wp.me/p8eeJm-vM

In the 9th Circuit case, several judges used separate opinions to lash out at their colleagues and show their support for the Trump Administration’s “Travel Ban 1.0.” This drew a reaction from some of their colleagues who accused the dissenters of using the forum and device of the separate opinions to deliver a message to politicians, other courts, and the parties for use in future litigation that was not yet before the court. In other words, to influence matters that were not part of the the actual “case or controversy” before the court, which was being dismissed without objection by either party.

In any event, in just a short time in office, the Trump Administration has “gotten the attention” of normally aloof and “ivory towerish” Federal Appellate Judges who seem to be energized and eager to engage in the fray with the Administration, its detractors, and each other.

PWS

04-09-17

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