Courts – Page 176 – immigrationcourtside.com

SURPRISE! – GONZO LIES: “2017 is on pace for the second-lowest crime rate since 1990 — and near-record low murders” — Sessions Fabricates “Crime Wave” To Support White Nationalist Anti-Hispanic, Anti-Black Political Narrative! –“It’s irresponsible to incite public panic based on falsehoods, and it makes our police officers’ jobs harder.”

https://www.washingtonpost.com/news/politics/wp/2017/09/06/2017-is-on-pace-to-have-the-second-lowest-crime-rate-since-1990-and-near-record-low-murders/?utm_term=.d5c197d6052e

Philip Bump reports in the Washington Post:

“At his swearing-in as the nation’s top law enforcement official in February, Attorney General Jeff Sessions picked up a thread that had run throughout Donald Trump’s campaign for president: America is experiencing an alarming crime wave.

“We have a crime problem,” Sessions said. “I wish the rise that we are seeing in crime in America today were some sort of aberration or a blip. My best judgment, having been involved in criminal law enforcement for many years, is that this is a dangerous, permanent trend that places the health and safety of the American people at risk.”

Preliminary analysis of crime data from the nation’s 30 largest cities released by the Brennan Center for Justice on Wednesday suggests that it isn’t. According to the center’s overview of crime and murder data, 2017 is on pace to have the second-lowest violent crime rate of any year since 1990.

From the report:

The overall crime rate is projected to drop by 1.8 percent to the second-lowest point since 1990.
The violent crime rate is projected to fall by 0.6 percent, also to the second-lowest point in over 25 years. (The lowest rate was in 2014.) “This result,” the report’s authors write, “is driven primarily by stabilization in Chicago and declines in Washington, D.C., two large cities that experienced increases in violence in recent years.”
The murder rate is projected to be down 2.5 percent, on-par with the rate in 2009.

Explore the center’s data for each of the country’s largest cities.

While there was indeed a national uptick in violent crime and murder during 2015 and 2016, one of the underrecognized drivers of those shifts was the sharp increase in killings in two cities, Chicago and Baltimore, which combined made up more than half of the increase in murders in large cities from 2014 to 2017. This year, the number of murders in Chicago alone is expected to drop 2.4 percent. But it’s declines in New York, Houston and Detroit that are driving the overall decrease.

Inimai Chettiar, director of the justice program at the center, told The Post that the analysis suggested two things.

“First, the long-term trend toward safer cities isn’t going anywhere,” Chettiar said over email. “The evidence conclusively shows there is currently no national crime wave. Second, short-term fluctuations in crime are often driven by local factors.”

There are several cities that reinforce that point. The murder rate in Charlotte, doubled over the first half of 2017, for example, even as it fell sharply in other places.

Chettiar addressed Sessions’s concerns directly.

“Our data leads us to believe that the upticks in 2015 and 2016 were likely short-term fluctuations,” she wrote, noting that “not enough research has been done to identify the exact catalyst.”

The center, which is a part of the New York University School of Law, shared its report with Ronal Serpas, a former New Orleans police superintendent who now co-chairs an organization focused on reducing incarceration rates.

“In contrast to what we have been hearing from the president and attorney general, this new data from police departments shows that all measures of crime and murder are in decline this year,” Serpas said in a statement provided to The Post. “It’s irresponsible to incite public panic based on falsehoods, and it makes our police officers’ jobs harder.” Both Serpas and Chettiar noted that in places where violent crime had increased the Trump administration’s focus was best placed on that crime — as opposed to immigration violations, for example.

Attorney General Jeff Sessions stands waiting during a meeting with the Fraternal Order of Police in the Roosevelt Room of the White House in March. (Jabin Botsford/The Washington Post)

As the Trump campaign and then the Trump presidency cited localized increases as examples of the crime threat that Trump pledged to solve, independent observers frequently noted that, despite the uptick in crime in recent years, overall levels were still near recent lows following the sharp drop of the last 20 years. The Brennan Center’s analysis suggests that this trend will continue, leading the administration to a no-doubt vexing problem:

Is it too soon to claim credit?

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I’ve noted many times before that Session’s disingenuous, xenophobic, White Nationalist focus on immigration enforcement actually makes the country less safe from crime. This report confirms that.

Moreover, with his “morbid fixation” on spreading a false narrative on immigration, Sessions has abandoned the real law enforcement functions of the DOJ, particularly in the areas of civil rights, voting rights, police brutality, prison reform, protection of the LGBTQ community, right-wing hate groups, domestic violence, and effectively combatting gangs, drug cartels, and human traffickers. As I’ve noted before, the latter three groups have been energized and empowered by Sessions’s focus on janitors, maids, gardeners, Dreamers and other “collaterals” — even dissing legal immigrants ands implicitly U.S. citizens of ethnic and immigrant heritage — rather than working on nuanced solutions to real law enforcement problems. By sowing unnecessary fear, mistrust, and terror among law-abiding productive members of migrant communities, he has basically “green-lighted” them as targets for crime, domestic violence, sexual exploitation, and gang recruitment. Ironically, this is a scenario I heard many times from individuals seeking refuge from third world countries: “I can’t go to the police because they won’t help and might even abuse or arrest me with impunity.”

Sessions is destroying the hard work of of community policing in ethnic communities in many cities throughout the U.S. One reason that many jurisdictions abandoned the “Safe Communities” program pushed by the Obama Administration is because they found it was a misnomer: busting undocumented workers and minor offenders actually did not make communities “safer.” Rather than learning from history, Sessions is doubling down on past failures. “Irresponsible” might be too kind a word to describe the Trump-Sessions White Nationalist legal agenda.

PWS

09-09-17

“JRUBE” IN WASHPOST: DEPT OF IN–JUSTICE: Under “Gonzo Apocalypto” White Nationalist, Xenophobic, Homophobic Political Agenda Replaces “Rule Of Law” — Latest DOJ Litigation Positions Fail “Straight Face” Test: “making up rules willy-nilly so as to show its rabid xenophobic base it is adhering to its promise of racial and ethnic exclusion!” — Read My “Mini-Essay” On How Advocates and U.S. Courts Could Restore Justice & Due Process To Our Broken U.S. Immigration Courts!

https://www.washingtonpost.com/blogs/right-turn/wp/2017/09/08/trump-is-getting-rotten-legal-advice-and-once-again-it-shows/?utm_term=.e34528c36b2c

Jennifer Rubin writes in “Right Turn” in the Washington Post:

“The 9th Circuit gave the back of the hand to the argument that the Trump administration could borrow a definition from another section of the immigration statute to exclude grandmothers. The Supreme Court had used mothers-in-law as an example of a close familial relationship it wanted to protect. The 9th Circuit judges wrote: “Plaintiffs correctly point out that the familial relationships the Government seeks to bar from entry are within the same ‘degree of kinship’ as a mother-in-law.” It’s hard to make a case that grandmothers would not qualify. It does not appear that the government even made a good-faith effort to apply the Supreme Court’s direction.

On one level, it’s shocking that a Republican administration that is supposed to be a defender of “family values” would take such a miserly position. But, of course, family values are of little consequence to an administration that is more than willing to repeal the Deferred Action for Childhood Arrivals program, auguring for the breakup of intimate family relations (e.g., one sibling gets deported but American-born siblings remain).

The 9th Circuit also looked at the administration’s argument that a refugee with a formal assurance of settlement lacks a bona fide relationship with some entity or individual in the United States. The court set out the laborious screening process refugees undertake (making a mockery of the notion these people are a security threat) and noted that after all those steps are completed the refugee gets a sponsorship assurance “from one of nine private non-profit organizations, known as resettlement agencies.” The 9th Circuit held: “The Government contends that a formal assurance does not create a bona fide relationship between a resettlement agency and a refugee, and stresses that ‘[t]he assurance is not an agreement between the resettlement agency and the refugee; rather, it is an agreement between the agency and the federal government.’ But the Supreme Court’s stay decision specifies that a qualifying relationship is one that is ‘formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the Executive Order].”’”

Again, one cannot help but come away with the impression that the government is throwing up every half-baked idea it can find to limit the number of people entering the country, regardless of the national security risk or the hardship its action inflicts. The Trump administration is plainly reasoning backward — deny as many people as possible admittance and then think up a reason to justify its position.

In its fixation with keeping as many immigrants out of the United States as possible, the Trump administration cannot claim to merely be following the dictates of the law. (Gosh it’s out of our hands — “Dreamers” and grandmas have to go!) It is making up rules willy-nilly so as to show its rabid xenophobic base it is adhering to its promise of racial and ethnic exclusion. It’s hard to believe seasoned career Justice Department lawyers agree with these arguments. In its oversight hearings Congress should start grilling Attorney General Jeff Sessions as to how he comes up with his cockamamie legal arguments and whether political appointees are running roughshod over career DOJ lawyers.

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Read Rubin’s full article at the link.

Mini-Essay:

TIME FOR ACTION ON THE BROKEN U.S. IMMIGRATION COURTS — IF CONGRESS WON’T ACT, THE FEDERAL COURTS MUST

Paul Wickham Schmidt

United States Immigration Judge (Retired)

If nothing else, the Trump Administration has given me a new appreciation for the Post’s “JRube.” She certainly has “dialed up” Gonzo’s number and exposed what’s behind his pompous, disingenuous misuse of the term “rule of law.”

No chance that a GOP Senate with Chuck Grassley as Judiciary Chair is going to hold Gonzo accountable for his daily perversions of “justice.” But, at some point, Federal Courts could begin sanctioning DOJ lawyers for willful misrepresentations (the Hawaii arguments before the 9th contained several) and frivolous positions in litigation. It’s possible that some DOJ lawyers all the way up to Gonzo himself could be referred by Federal Judges to state bar authorities for a look at whether their multiple violations of ethical standards should result suspension of their law licenses.

Another thought kicking around inside my head is that Gonzo’s actions and his public statements are starting to make a plausible case for a due process challenge to the continued operation of the U.S. Immigration Courts.

As with school desegregation, prison reform, and voting rights, a Federal Court could find systematic bias and failure to protect due process. That could result in something like 1) a requirement that the DOJ submit a “due process restoration” plan to the court for approval, or 2) the court appointment of an independent “judicial monitor” to run the courts in a fair and unbiased manner consistent with due process, or 3) the Federal Courts could take over supervision of the US Immigration Courts pending the creation of an Article I (or Article III) replacement.

High on the list of constitutionally-required reforms would be ending the location of courts within DHS detention facilities. All courts should be located in areas where adequate pro bono counsel is reasonably available and accessible. Immigration Courts should be located outside of DHS facilities in buildings accessible to the public with reasonable security requirements. Immigration Judges must be required to continue cases until pro bono counsel can be retained. Alternatively, the Government could provide for appointed counsel.

Another obvious due process reform would be to strip the Attorney General of his (conflict of interest) authority to establish or review precedents and operating procedures for the U.S. Immigration Courts. Along with that, the DHS should be given an equal right to appeal adverse BIA appellate decisions to the Courts of Appeals (rather than seeking relief from the AG — clearly an interested party in relation to immigration enforcement).

There also should be an immediate end to the appointment and supervision of U.S. Immigration Judges by the politically-biased AG. U.S. Immigration Judges and BIA Appellate Immigration Judges should be appointed on a strict merit basis by either an independent judicial monitor or by the U.S. Courts of Appeals until Congress enacts statutory reforms.

The current U.S. Immigration Court system mocks justice in the same way that Jeff “Gonzo Apocalypto” Sessions mocks it almost every day. There might be no practical way to legally remove Gonzo at present, but the Federal Courts could step in to force the U.S. Immigration Courts to undertake due process reforms. The current situation is unacceptable from a constitutional due process standpoint. Something has to change for the better!

PWS

09-09-17\

GONZO’S LATEST TARGET: LGBTQ Americans — DO”J” Gratuitously Files “Embarrassing” Brief With Supremes SUPPORTING Homophobia: “politicized bigotry dressed up in inane legalese!”

http://www.slate.com/articles/news_and_politics/jurisprudence/2017/09/doj_s_cynical_embarrassing_brief_in_the_supreme_court_s_anti_gay_baker_case.html

Mark Joseph Stern reports in Slate:

“On Thursday afternoon, the Department of Justice filed an amicus brief in Masterpiece Cakeshop v. Civil Rights Commission, a constitutional challenge to LGBTQ nondiscrimination laws. The DOJ urged the Supreme Court to rule that laws barring businesses from refusing to serve gay couples may violate the First Amendment’s free speech guarantee. Its brief is an exercise in cynical dishonesty, one that’s difficult to read as anything less than politicized bigotry dressed up in inane legalese.

. . . .

Even worse, the brief does not explain why homophobia deserves special respect under the law. The Supreme Court has said that homosexuality is immutable, like race. Why, then, should animus toward same-sex couples be treated differently from animus toward interracial couples? And what about religious bigotry? Can a devout baker refuse to sell a cake to an interfaith couple, and can an atheist one say a Christian can’t buy cupcakes for a christening? Can a sexist baker refuse to serve a female customer? What if his misogyny is derived from religion? And why stop at a cake? Shouldn’t the preparation of other foods qualify as expressive conduct, too? Doesn’t every good or service involve some measure of expressive conduct or association that the First Amendment could theoretically protect?

In its brief, the DOJ implicitly raises all of these questions without answering them because it can’t answer them—not honestly, at least. The reality is that the courts cannot, with any logical coherence or consistency, deny civil rights protections to some groups but not others. Either nondiscrimination law are constitutional or they aren’t. The First Amendment does not grant greater rights to homophobic bakers than racist or sexist ones. Plenty of bigoted business owners wish they could assert a constitutional privilege not to associate with specific groups. If the courts open the door to one, they’ll open the door to all. Shopkeepers do not have a special right to turn away gays from their stores.

The brief strives to avoid this problem because it is, at bottom, a political document. Attorney General Jeff Sessions recently gave a speech to ADF thanking the organization for its “important work” defending “religious liberty.” Through Sessions, President Trump is discharging his obligation to appease the bigots in his base. The DOJ’s efforts, however, may prove counterproductive. This brief will delight the court’s reactionaries who favor religious supremacy and disdain gay rights. But it can only estrange Kennedy—who notably, has allowed an LGBTQ nondiscrimination policy to trump a First Amendment claim in the past. Kennedy is always eager to protect the “equal dignity” of same-sex couples; the DOJ now seeks to undermine it. The Trump administration might score political points with this brief, but it won’t win enough votes at the court.

One more thing
The Trump administration poses a unique threat to the rule of law. That’s why Slate has stepped up our legal coverage—watchdogging Jeff Sessions’ Justice Department, the Supreme Court, the crackdown on voting rights, and more.”

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Under Sessions, the Department of Justice has become purveyor of racism, bigotry, hate, voter suppression, xenophobia, White Nationalism, homophobia, and some incredibly bad and intellectually dishonest lawyering. Gonzo is a disgrace to his position and an insult to American justice. Liz was right. And let’s not forget how she was treated by the GOP when she tried to speak truth about Sessions in the Senate!

PWS

09-08-17

STATE OF HAWAII V. TRUMP — Read The 9th Circuit’s Full Opinion Here — See The Largely Unsupported Arguments Made By DOJ In Pushing For Extreme Scope of “Travel Ban 2.0” — Understand How & Why Court Blew Them Away!

Here’s the full text:

17-16426–Hawaii-9th-09-17

PANEL: Michael Daly Hawkins, Ronald M. Gould, and Richard A. Paez, Circuit Judges.

OPINION: Per Curiam

KEY QUOTE:

“We are asked to review the district court’s modified preliminary injunction,

which enjoins the Government from enforcing Executive Order 13780 against (1) grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States; and (2) refugees who have formal assurances from resettlement agencies or are in the U.S. Refugee Admissions Program (“USRAP”) through the Lautenberg Amendment.

For the reasons that follow, we conclude that in modifying the preliminary injunction to preserve the status quo, the district court carefully and correctly balanced the hardships and the equitable considerations as directed by the Supreme Court in Trump v. International Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017), and did not abuse its discretion. We affirm.

. . . .

The Government also raises concerns that because about 24,000 refugees have been assured, the district court’s ruling causes the Supreme Court’s stay order to “cover[] virtually no refugee” and renders the order inoperative. The Supreme Court’s stay considered the concrete hardship of U.S.-based persons and entities. See Trump, 137 S. Ct. at 2088–89. The Court’s equitable decision did not express concern about the number of refugees that would fall within the scope of the injunction; rather, the Court’s order clarifies that the Government is still enjoined from enforcing the 50,000-person cap of § 6(b) to exclude refugees who have a bona fide relationship with a U.S. person or entity and are otherwise eligible to enter the United States. Id. at 2089.

Furthermore, the Government’s assertion that the modified injunction renders the Court’s stay order inoperative is false. More than 175,000 refugees currently lack formal assurances. Without another bona fide relationship with a person or entity in the United States, the Executive Order suspends those refugees’ applications. See U.S. Dep’t of Homeland Security, Frequently Asked Questions on Protecting the Nation from Foreign Terrorist Entry into the United States at Q.27, https://www.dhs.gov/news/2017/06/29/frequently-asked-questions- protecting-nation-foreign-terrorist-entry-united-states (last visited Aug. 30, 2017)

(“USCIS officers have been instructed that they should not approve a refugee application unless the officer is satisfied that the applicant’s relationship complies with the requirement to have a credible claim of a bona fide relationship with a person or entity in the United States and was not formed for the purpose of evading the Executive Order.”).

Resettlement agencies will face concrete harms and burdens if refugees with formal assurances are not admitted. In the same way that the Court considered the harms of the U.S. citizen who wants to be reunited with his mother-in-law and the permanent resident who wants to be reunited with his wife, the employer that hired an employee, the university that admitted a student, and the American audience that invited a lecturer, the district court correctly considered the resettlement agency that has given a formal assurance for specific refugees. The district court did not abuse its discretion with regard to this portion of the modified preliminary injunction.

Our decision affirming the district court’s modified preliminary injunction will not take effect until the mandate issues, which would not ordinarily occur until at least 52 days after this opinion is filed. See Fed. R. App. P. 41; Fed. R. App. P. 40(a)(1).

Refugees’ lives remain in vulnerable limbo during the pendency of the Supreme Court’s stay. Refugees have only a narrow window of time to complete their travel, as certain security and medical checks expire and must then be re- initiated. Even short delays may prolong a refugee’s admittance.

Because this case is governed by equitable principles, and because many refugees without the benefit of the injunction are gravely imperiled, we shorten the time for the mandate to issue. See Fed. R. App. P. 41(b). The mandate shall issue five days after the filing of this opinion.

We affirm the district court’s order modifying the preliminary injunction. The mandate shall issue five days after the filing of this opinion.”

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

This is how the Trump-Sessions DOJ squanders taxpayer money and wastes U.S Courts’ time. Advancing positions unsupported by law or facts is also what “Gonzo Apocalypto” means when he disingenuously refers to “restoring the rule of law.” Meanwhile, Sessions ignores the real threats to America’s security posed by his buddy Bannon, his flunky Miller, and their White Supremacist allies.

I have predicted that the career DOJ Attorneys in the Solicitor General’s Office, the Office of Immigration Litigation, and elsewhere who are charged with defending Session’s gonzo and often disingenuous political agenda will have “zero credibility” by the time his reign at Justice is over. Problem is that our justice system and particularly our Immigration Courts will be in shambles by the time Sessions is done.

PWS

09-08-17

PETULA DVORAK IN WASHPOST: DISHONEST LEADERS SOW “FALSE FEARS” WHILE IGNORING REAL THREATS!

https://www.washingtonpost.com/local/what-happens-when-a-presidency-runs-on-fakefears-real-fears-are-ignored/2017/09/07/83ead004-93d1-11e7-8754-d478688d23b4_story.html

Dvorak writes:

Fake fear is our new leader.

Washington’s new ruling class is not governing with compassion, common sense, measured research, knowledge of history or the future. Theirs is a doctrine of fake fears. And these same people also have a problem with things we should actually be afraid of.

Let me explain.

Fake Fear: The “bad hombres” President Donald Trump talked about during the campaign last year begot this week’s DACA repeal thing. Trump wants us to be afraid of these immigrants, and he’s ready to trash the lives of more than 800,000 Americans looking for a path to legal residency by killing the Deferred Action for Childhood Arrivals program.

The truth is that these immigrants, brought here as children by their parents, “have lower incarceration rates than native-born Americans of the same age and education level,” according to a report issued last week by the nonpartisan CATO Institute.

Real Fear: Hurricanes. You know them — from Katrina to Harvey to Irma — millions of people and billions of dollars tell you hurricanes devastate lives, cities and industries.

But Trump refuses to fear them. Earlier this year, he proposed a budget that slashed about $667 million for the disaster preparedness programs run by the Federal Emergency Management Agency. That budget also proposed $6 billion in cuts to the Department of Housing and Urban Development, which helps rebuild homes and hospitals.

The fake fear administration also killed a post-Katrina rule requiring building projects eligible for federal funding to take such measures as elevating structures in flood zones away from the reach of rising water before they get government cash. And they did this just in time for hurricane season.

But hey, the $108 billion in damage and the 1,800 lives lost in Hurricane Katrina must not mean much when it your moral compass is fake fear.

Fake fear: The apparent crime wave that Attorney General Jeff Sessions keeps warning Americans about.

“We have a crime problem,” Sessions said in February. “I wish the rise that we are seeing in crime in America today were some sort of aberration or a blip. My best judgment, having been involved in criminal law enforcement for many years, is that this is a dangerous, permanent trend that places the health and safety of the American people at risk.”

But the facts say otherwise.

This year is on pace to have the second-lowest violent crime rate of any year since 1990, according to a report by the Brennan Center for Justice this week that analyzed statistics from the nation’s 30 largest cities.

Real fear: Though we’ve seen more and more horrifying videos of civilians being shot by police officers, we still have little comprehensive data that shows how often this happens and how agencies can prevent these tragedies.

“What we really need to know is how many times police shoot people, not just how many of those people die,” David A. Klinger, a criminal justice professor at the University of Missouri in St. Louis who studies police use of force, told The Washington Post earlier this summer.

The Post began compiling this information in 2015, relying on local news, social media and our own reporting.

This is a real fear for real people. This is true whether you’re a black man, such as beloved cafeteria worker Philando Castile, who was doing nothing wrong when he was killed in Minnesota last year by a nervous police officer. And it’s true if you’re a white woman, like nurse Alex Wubbels, who was seen in a viral video last week being roughed up and arrested by a Utah detective for simply doing her job. The fake fear people seem to have little interest in addressing this problem.

The FBI’s weak, self-reporting system that has been the only way to track this was called “embarrassing and ridiculous” by fired FBI director James B. Comey.

Fake fear: Muslims in America. Trump’s attempts at a travel ban, fulfilling his campaign promise of a “total and complete shutdown of Muslims entering the United States” have reinforced a growing and misplaced Islamophobia throughout our country. We’ve seen the fake-fear sentiment in workplaces, in small-town councils trying to mess with mosques that have been peaceful and unnoticed for years, and I even saw it one of my sons’ sports teams this summer.

The truth is, from 2008 to 2016, right-wing extremists carried out twice as many terrorist attacks on U.S. soil than Islamist extremists, according to a recent report from The Nation Institute’s Investigative Fund and The Center for Investigative Reporting’s Reveal.

Real Fear: White supremacists in America. The FBI and Department of Homeland Security issued a joint intelligence bulletin that said white supremacists “were responsible for 49 homicides in 26 attacks from 2000 to 2016 … more than any other domestic extremist movement.”

They issued this statement just a couple months before the protests in Charlottesville, where an avowed Nazi sympathizer was arrested after a car drove into a crowd, killing 32-year-old Heather Heyer and injuring 19 others. There is no mistaking that was real.

We deserve real care and real concern from our leaders when it comes to real fears. There’s no shortage of them.

Let’s start by calling out #FakeFears when we see them. Washington is full of those these days, too.

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Dvorak succinctly captures what White Nationalist governance and propaganda is all about: fear, loathing, lies. Too cowardly to address real problems because that might offend the “White Nationalist base” that put and keeps them in power.

PWS

09-08-17

ABA JOURNAL: “Dickie The P” Reportedly Quit 7th Over Rift With Colleagues About Treatment Of Pro Se Litigants — Perhaps He Should Check Out In Person How Sessions’s DOJ & Captive Immigration Courts Intentionally Abuse & Deny Due Process To Unrepresented Migrants!

http://www.abajournal.com/news/article/why_did_posner_retire_he_cites_difficulty_with_his_colleagues_on_one_issue/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email

Debra Cassens Weiss reports:

“Judge Richard Posner had intended to stay on the federal appellate bench until he reached 80, an age he believed to be the upper limit for federal judges.

But on Friday, at the age of 78, he abruptly announced his retirement from the Chicago-based 7th U.S. Circuit Court of Appeals, effective the next day. The reason is due to “difficulty” with his colleagues over the court’s treatment of people who represent themselves, he told the Chicago Daily Law Bulletin in an email.

“I was not getting along with the other judges because I was (and am) very concerned about how the court treats pro se litigants, who I believe deserve a better shake,” Posner said. The issue will be addressed in an upcoming book that will explain his views and those of his colleagues “in considerable detail,” Posner said.

Posner said he did not time his retirement to allow President Donald Trump to appoint his replacement. “I don’t think it’s proper for judges or justices to make their decision to retire depend on whom they think the president will appoint as replacements,” he told the Law Bulletin. With Posner’s retirement, the 7th Circuit has four vacancies.

Posner was appointed by President Ronald Reagan in 1981, and was widely considered a conservative. He has since written more than 3,300 judicial opinions, and not all please conservatives, according to the Law Bulletin. On the one hand, he struck down the Illinois ban on carrying weapons in public, called for fewer restrictions on domestic surveillance, and limited class certification in class-action lawsuits. But he has also written opinions favoring abortion rights and same-sex marriage.

In a 2012 interview with National Public Radio, Posner said he has become less conservative “since the Republican Party started becoming goofy.” But he won’t remain above the fray in politics.

He told the Law Bulletin that his retirement will allow him to assist his cat, Pixie, in a run for president in 2020. Above the Law had endorsed Pixie last year, but Posner was unable to participate in the campaign.”

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Perhaps “Dickie The P” can take some time away from Pixie to visit the kangaroo courts that DOJ has established in prisons intentionally located in out of the way places where traumatized individuals seeking refuge from life-threatening conditions are held in substandard conditions and forced to represent themselves in “death penalty cases” involving some off the most complex and (intentionally) obtuse concepts in modern American law.

Love him or loathe him (or both), Posner is a prolific writer and thinker whose views can’t be ignored or swept under the table. What’s happening in the U.S. Immigration Courts under Sessions is a national disgrace. A high profile legal commentator like Posner, who frankly doesn’t care whom he pisses off, could shed some light on the travesty now passing for due process in the Immigration Courts and how too many of his former Article III colleagues have turned their backs on their constitutional duties rather than taking a strong legal stand against intentional abuse of the most vulnerable by our legal system. A voice like Posner’s advocating for an Article I Court would be heard!

PWS

09-08-15

TRUMP ADMINISTRATION LOSES AGAIN ON TRAVEL BAN 2.0. — 9th Circuit Sides With Plaintiffs, District Court!

http://abcnews.go.com/Politics/wireStory/appeals-court-grandparents-part-trumps-travel-ban-49689664

ABC News reports:

By GENE JOHNSON, ASSOCIATED PRESS
SEATTLE — Sep 7, 2017, 6:37 PM ET
Email
A federal appeals court on Thursday rejected the Trump administration’s limited view of who is allowed into the United States under the president’s travel ban, saying grandparents, cousins and similarly close relations of people in the U.S. should not be prevented from coming to the country.

The unanimous ruling from three judges on the 9th U.S. Circuit Court of Appeals also said refugees accepted by a resettlement agency should not be banned. The decision upheld a ruling by a federal judge in Hawaii who found the administration’s view too strict.

“Stated simply, the government does not offer a persuasive explanation for why a mother-in-law is clearly a bona fide relationship, in the Supreme Court’s prior reasoning, but a grandparent, grandchild, aunt, uncle, niece, nephew, or cousin is not,” the ruling said.

The U.S. Supreme Court said in June that President Donald Trump’s 90-day ban on visitors from Iran, Libya, Somalia, Sudan, Syria and Yemen can be enforced pending arguments scheduled for October. But the justices said it should not apply to visitors who have a “bona fide relationship” with people or organizations in the U.S., such as close family ties or a job offer.

The government interpreted such family relations to include immediate family members and in-laws, but not grandparents, cousins, aunts and uncles. The judge in Hawaii overruled that interpretation, expanding the definition of who can enter the country to the other categories of relatives.”

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Read the complete story at the link.

Not very surprising. The Trump Administration continues to undermine the rule of law to advance their bogus agenda on security and terrorism.

PWS

09-07-17

3RD CIR FINDS BIA ERRED IN CLASSIFYING BANGLADESH BNP AS “LEVEL III TERRORIST ORGANIZATION” — DECRIES BIA PANEL INCONSISTENCIES, LACK OF ACCESS TO UNPUBLISHED DECISIONS — Uddin v. Attorney General

171056p-Uddin

Uddin v. Attorney General, 3rd Cir., Sept. 6, 2017

BEFORE: GREENAWAY, JR., SHWARTZ, and RENDELL, Circuit Judges

OPINION BY: Judge Rendell

KEY QUOTE:

“While we will deny the petition for review challenging the Board’s ruling dismissing Uddin’s Convention Against Torture (“CAT”) claim, we will grant the petition in part and remand on his withholding of removal claim. The Board has pointed to terrorist acts by BNP members. But it did not find that BNP leadership authorized any of the terrorist activity committed by party members. Today, we join the reasoning of the Seventh Circuit and the Board in many of its own opinions by holding as follows: unless the agency finds that party leaders authorized terrorist activity committed by its members, an entity such as the BNP cannot be deemed a Tier III terrorist organization.

. . . .

Second, the rule we announce mirrors the Board’s own reasoning in the mine-run of its cases involving the BNP’s status as a Tier III organization. In fact, in some cases where IJs did not make a finding as to BNP leaders’ authorization of allegedly terrorist acts, the Board found error in the IJs’ omissions, and remanded to the IJs to take up that very question of authorization. In such cases, the Board bolstered

used the RAB to conduct numerous extra-judicial killings of BNP members. Thus, for purposes of the BNP’s status as a terrorist organization, the RAB’s conduct cannot be ascribed to that group during the time period relevant to Uddin’s case.

its reasoning by referencing Seventh Circuit opinions suggesting that some finding on authorization is necessary to assign a group Tier III status. See Khan v. Holder, 766 F.3d 689, 699 (7th Cir. 2014) (“An entire organization does not automatically become a terrorist organization just because some members of the group commit terrorist acts. The question is one of authorization.”); Hussain v. Mukasey, 518 F.3d 534, 538 (7th Cir. 2008) (“An organization is not a terrorist organization just because one of its members commits an act of armed violence without direct or indirect authorization . . . .”).

. . . .

Further, today’s ruling should help provide the Board a principled method of adjudicating Tier III cases, an area of law with little guidance from the Courts of Appeals. This dearth of precedential opinions has resulted in highly inconsistent results regarding the BNP’s status as a terrorist organization: our preliminary research in preparation for oral argument turned up several Board rulings concluding that the BNP was not in fact a terrorist organization. These conclusions were in stark contrast to the Board’s finding in Uddin’s case.

Faced with these contradictory opinions, in advance of oral argument we asked the Government to submit all Board opinions from 2015-2017 addressing the terrorism bar as it applies to the BNP. (Those opinions are not all publicly available.) The Government’s submission—fifty-four opinions in total—did not bolster our confidence in the Board’s adjudication of these cases.

In six of the opinions, the Board agreed with the IJ that the BNP qualified as a terrorist organization based on the record in that case. But in at least ten, the Board concluded that the BNP was not a terrorist organization. In at least five cases, the Government did not challenge the IJ’s determination that the BNP is not a terrorist organization. And in one case, the Board reversed its own prior determination, finding that that “the Board’s last decision incorrectly affirmed the Immigration Judge’s finding that the BNP is a Tier III terrorist organization.” Many of the cases discussed the BNP’s terrorist status during the same time periods, reaching radically different results.

We recognize that the Board’s decisions are unpublished, and thus lack precedential value. We also note the Government’s argument that the BNP’s status as an undesignated terrorist organization is a “case-specific” determination based on the facts presented. That said, something is amiss where, time and time again, the Board finds the BNP is a terrorist organization one day, and reaches the exact opposite conclusion the next.

Even more concerning, the IJ in this case stated that he was “aware of no BIA or circuit court decision to date which has considered whether the BNP constitutes a terrorist organization.” AR 68. At the time the IJ ruled, there were several such decisions, and now there are dozens. When asked at oral argument whether the IJ could access unpublished Board decisions regarding BNP’s terrorist status, the Government’s Attorney responded that he did not know. This is a troubling state of affairs.”

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Gee whiz, the Article III’s are finally starting to figure out some of the problems with having a supposedly due-process focused Appellate Court resident in an agency of the U.S. Department of Justice. And the quality and consistency of administrative justice in immigration is hardly likely to improve under the Sessions “just peddle faster and deport more folks while we mindlessly fill the system with DACA immigrants” program.

The Third Circuit arguably now knows more about what the BIA is doing in this area than then BIA itself. And, I can guarantee that they know more than Jeff Sessions or anyone at the DOJ.

Oh yeah, and hiring more Immigration Judges, giving them less training, moving them around for enforcement purposes, and giving them less time to turn out quality decisions isn’t likely to improve this “troubling state of affairs.” Moreover, by failing to provide and enforce uniform guidance, the BIA encourages the DHS to abuse the system by “rolling the dice” on cases (like this one) they clearly should lose, but could win, at the Immigration Court, rather than being required to settle cases and exercise prosecutorial discretion in the way almost all other prosecutors do, on every level of the U.S. system except the Immigration Court. What Sessions disingenuously calls “enforcing the rule of law” is actually, in the words of Jason Dzubow, a “mixture of cruelty and incompetence” (with some just plain old stupidity thrown in).

The only thing that will improve the quality of justice in the U.S. Immigration Court system is to get it out of the Executive Branch and into an independent structure forthwith. Otherwise, the Article III’s are going to find themselves between a rock an a hard place: rubber stamp the BIA’s questionable work product or take over the BIA’s function and insist that constitutional due process be satisfied.

PWS

09-07-17

3RD CIR REAFFIRMS THAT 18 USC 16(B) “CRIME OF VIOLENCE” AS INCORPORATED INTO THE INA IS UNCONSTITUTIONALLY VAGUE: Mateo v. Attorney General — Supremes Remain MIA

151160p

Before: McKEE, JORDAN, and VANASKIE, Circuit Judges.

OPINION BY: JUDGE VANASKIE

KEY QUOTE:

“The petitioner in Baptiste, like Mateo, faced removal on the basis of his purported status as an alien convicted of a crime of violence under § 16(b). As stated previously, § 16(b) defines a crime of violence as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In order to determine whether the crime of conviction is a crime of violence under § 16(b), courts utilize the same categorical approach that was applied to the ACCA’s residual clause. Baptiste, 841 F.3d at 617. The petitioner in Baptiste argued that the Supreme Court’s holding in Johnson striking down the residual clause should apply to negate § 16(b). After comparing the features of the § 16(b) analysis to those found to contribute to the unconstitutionality of the residual clause in Johnson, we agreed that the same defects were present in § 16(b), rendering the provision unconstitutional. Regarding the first feature, we recognized that the same “ordinary case inquiry” is used when applying the categorical approach in both contexts. Id. Like the residual clause, § 16(b) “offers no reliable way to choose between . . . competing accounts of what” that “judge- imagined abstraction” of the crime involves. Johnson, 135 S.Ct. at 2558. Thus, we concluded in Baptiste that “the ordinary case inquiry is as indeterminate in the § 16(b) context as it was in the residual clause context.” 841 F.3d at 617. Turning to the second feature—the risk inquiry—we observed that despite slight linguistic differences between the provisions, the same indeterminacy inherent in the residual clause was present in § 16(b). Id. “[B]ecause the two inquiries under the residual clause that the Supreme Court found to be indeterminate—the ordinary case inquiry and the serious potential risk inquiry—are materially the same as the inquiries under § 16(b),” we concluded that “§ 16(b) is unconstitutionally vague.” Id. at 621. This conclusion applies equally to Mateo’s petition. Our treatment of § 16(b) is in step with the Sixth, Ninth, and Eleventh Circuits, which have all similarly deemed the provision to be void for vagueness in immigration cases. See Shuti, 828 F.3d at 451; Dimaya, 803 F.3d at 1120; Golicov v. Lynch, 837 F.3d 1065, 1072 (10th Cir. 2016). The Seventh Circuit has also taken this position in the criminal context. See United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 2015). In fact, the only circuit that has broken stride is the Fifth Circuit.7 See United States v. Gonzalez-Longoria, 831 F.3d 670, 677 (5th Cir. 2016) (en banc). In the meantime, we await the Supreme Court’s decision in the appeal of Dimaya.”

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The Dimaya case before the Supremes (again) should be a good test of whether newest Justice Gorsuch will adhere to his strict constructionist principles where they will produce a favorable result for a migrant under the immigration laws.

The Johnson case, relied on by the Third Circuit, was written by none other than the late Justice Antonin Scalia, a leading strict constructionist and conservative judicial icon, who nevertheless found that his path sometimes assisted migrants in avoiding removal. So, on paper, this should be a “no brainer” for Justice Gorsuch, who has also been critical of some of the BIA’s “Chevron overreach” and non-responsiveness to Article III Courts.

PWS

09-07-17

IN THE LAWLESS REGIME OF TRUMP & SESSIONS, “RULE OF LAW” REFERS MOSTLY TO LAWS AIMED AT MINORITIES — REGIME PARDONS CONTEMPTOUS, RACIST SCOFFLAW “SHERIFF JOE,” MOCKS ENVIRONMENTAL PROTECTIONS, DISREGARDS ETHICS RULES, UNDERMINES HEALTHCARE LAWS, INSULTS FEDERAL JUDGES, TRIES TO INFLUENCE CRIMINAL INVESTIGATIONS OF BUDDIES, IGNORES POLICE MISCONDUCT, & DITCHES PROTECTIONS FOR INNOCENT DEFENDANTS, WHILE THREATENING TO STRIP LAW ABIDING DREAMERS OF LEGAL PROTECTIONS!

http://www.slate.com/articles/news_and_politics/politics/2017/09/the_law_is_just_a_smokescreen_for_trump_ending_daca.html

Jamelle Bouie writes in Slate:

“When President Trump pardoned former Maricopa County Sheriff Joe Arpaio—then under contempt of court for bucking a federal injunction—he defended the action as necessary for the preservation of law and order. Lawmakers and advocacy groups expressed outrage, and for good reason. Arpaio hadn’t been a force for either law or order. Throughout his career, he repeatedly and flagrantly violated the constitutional rights of the men and women in his jails, to say nothing of his racial profiling, measures that consumed resources at the expense of actual crime in his community. Celebrated for his cruelty, Arpaio embodied a homegrown authoritarianism defined by its racism. And in shielding the Arizona sheriff from the legal consequences of his actions, Trump undermined actual rule of law, subjecting it to his whims and prejudices.

It was ironic, then, to see the president cite the rule of law in criticizing Deferred Action for Childhood Arrivals, an Obama-era executive decree that shielded unauthorized immigrants who had come as children from deportation provided they paid a fee, met certain requirements, and registered with the government. Announced in 2012, almost two years after a successful Republican filibuster of legislation that would have the same effect, the consensus among legal scholars is that the action was legal. But President Trump disagrees. “As President, my highest duty to defend the American people and the Constitution of the United States of America,” he said in an official statement. “At the same time, I do not favor punishing children, most of whom are now adults, for the actions of their parents. But we must also recognize that we are [a] nation of opportunity because we are a nation of laws.”

His attorney general, Jeff Sessions, echoed Trump’s concerns in announcing the end of DACA. “No greater good can be done for the overall health and well-being of our republic, than preserving and strengthening the impartial rule of law,” said Sessions. “To have a lawful system of immigration that serves the national interest, we cannot admit everyone who would like to come here.”

But both odes to the rule of law are difficult to square with the rationale for the Arpaio pardon, even if the pardon was clearly permissible under the president’s broad powers. The former sheriff didn’t just break the law: He violated the constitutional rights of American citizens and disobeyed a court order to cease that conduct. A president seriously concerned with rule of law would not claim Arpaio as an ally (as Trump did) much less pardon him of his offenses.

The natural explanation for this inconsistency is that “rule of law” is a smokescreen meant to obscure the actual reason for ending DACA. That reason is Trump’s own nativism—a driving force of his campaign for president, reflected in the cultural and racial anxiety of his voters—and the anti-immigrant ideologies of key advisers like Sessions and Stephen Miller (who was mentored by Sessions in the Senate). Both men hold deeply nativist worldviews and highly restrictionist agendas for immigration, with the goal of limiting and removing as many immigrants as possible, and creating an inhospitable environment for those who remain.

“Law and order” is just a smokescreen for exclusion.
The official statements from Sessions and the White House illustrate those views. The attorney general, for example, stated that DACA—which he called an “open-ended circumvention of immigration laws”—denied jobs to “hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens,” a claim with no basis in fact but in the myth that immigrants take jobs from Americans. Later, Sessions declares that the failure to enforce immigration laws puts “our nation at risk of crime, violence and even terrorism.” This may be true in the general sense, but it has no relevance to the actual policy in question, which deals with those undocumented immigrants who came to the United States through no act of their own, and who seek to live and work in peace. The statement simply serves to associate immigrants with crime and disorder.

The White House statement is even more reliant on anti-immigrant myths. Trump says that DACA contributed to a “massive surge of unaccompanied minors from Central America” that included “young people who would become members of violent gangs throughout our country, such as MS-13.” This, my colleague Mark Joseph Stern finds, is simply false, an allegation “touted by far-right xenophobes.” Later, the president—like Sessions—connects DACA to a “decades-long failure” to enforce immigration law that has led to “the illicit entry of dangerous drugs and criminal cartels” in addition to other ills. Again, there’s little to support this claim other than familiar anti-immigrant tropes.”

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

Read the entire article at the link.

Any time you hear a xenophobic modern day “Jim Crow” like Sessions mention the “rule of law” (which I guess doesn’t apply to sworn testimony before Congress), it’s time to reach for the barf bag (because, according to the law of Sessions, laughing is unlawful). It’s usually followed by some false anti-some-minority narrative read off cue cards written by nativists, Breitbart news, or Stephen Miller (as if there were a distinction).

PWS

09-07-17

BIA SHOWS AGAIN HOW YOU DON’T HAVE TO BE CONVICTED TO BE “CONVICTED” UNDER THE INA: Matter of Mohamed, 27 I&N Dec. 92 (BIA 2017)

3900

BIA HEADNOTE:

“Entry into a pretrial intervention agreement under Texas law qualifies as a “conviction” for immigration purposes under section 101(a)(48)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(48)(A) (2012), where (1) a respondent admits sufficient facts to warrant a finding of guilt at the time of his entry into the agreement, and (2) a judge authorizes an agreement ordering the respondent to participate in a pretrial intervention program, under which he is required to complete community supervision and community service, pay fees and restitution, and comply with a no-contact order.”

PANEL: BIA APPELLATE IMMIGRATION JUDGES GRANT, PAULEY, MANN

OPINION BY: JUDGE GRANT

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Under the INA state criminal proceedings cannot be “relitigated” in U.S. Immigration Court. States go to great lengths to relieve certain first or minor offenders of the legal consequences of a conviction. But, at that point, the INA ditches out state determinations and imposes its own broad definition of “conviction.” Rule: Whatever is necessary to screw the migrant!

PWS

09-07-17

CNN’S TAL KOPAN: The Good Guys Take The Field — File Suit To Protect Dreamers!

http://www.cnn.com/2017/09/06/politics/daca-trump-states-lawsuits/index.html

Tal reports:

“Washington (CNN)Conservative states may have boxed President Donald Trump into announcing an end for the Deferred Action for Childhood Arrivals program — but Democratic state attorneys general are already fighting back.

A coalition of 16 Democratic and nonpartisan state attorneys general filed suit in New York federal court on Wednesday to stop Trump’s sunset of DACA — the Obama-era program that protected young undocumented immigrants brought to the US as children from being deported — and they say Trump’s comments about Mexicans should be used against him.
The groups laid out five different constitutional arguments against Trump’s move, saying it was motivated by discriminatory reasons, that it violated due process by being “fundamentally unfair,” and that it violated laws that dictate procedures for federal regulations.
The lawyers note that most DACA recipients are of Mexican origin and devote a whole section to inflammatory statements Trump has made about Mexicans, including his attacks on a federal judge of Mexican descent.
“As President Trump’s statements about Mexico and those with Mexican roots show, the President has demonstrated a willingness to disparage Mexicans in a misguided attempt to secure support from his constituency, even when such impulses are impermissible motives for directing governmental policy,” the attorneys general wrote.
Trump’s statements as a candidate and President have been used against him in previous lawsuits, most notably challenges against his travel ban earlier this year.
The lawsuit also devotes a section to Texas, the state that pushed Trump to end the program, using a section to describe Texas as “a state found to have discriminated against Latinos/Hispanics nine times since 2012.”

Trump on Tuesday moved to sunset the DACA program, acting in response to a threat from 10 states led by Texas Attorney General Ken Paxton sent in late June, threatening Trump that they’d sue in an unfriendly court if the President didn’t end the program by September 5.
The President said his administration would not accept any new DACA applications from Tuesday onward and that any two-year DACA permits expiring after March 5, 2018, would not be renewed.
Now, those state officials’ Democratic counterparts are hoping they can have the opposite effect on the administration, succeeding in the courts to reinstate the program that has protected nearly 800,000 young people in its time and currently has nearly 700,000 people enrolled.
“Immigration is the lifeblood of New York State,” New York Attorney General Eric Schneiderman said in a statement. “The Trump administration’s decision to end DACA is cruel, inhumane, and devastating to the 42,000 New Yorkers who have been able to come out of the shadows and live a full life as a result of the program.”
“I filed suit against President Trump and his administration to protect DACA because Dreamers are just as American as first lady Melania Trump,” New Mexico Attorney General Hector Balderas said in a statement.

Justice Department spokesman Devin O’Malley said the department is ready to defend itself.
“As the attorney general said yesterday: ‘No greater good can be done for the overall health and well-being of our Republic, than preserving and strengthening the impartial rule of law,'” O’Malley said. “While the plaintiffs in today’s lawsuits may believe that an arbitrary circumvention of Congress is lawful, the Department of Justice looks forward to defending this administration’s position.”

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

Read Tal’s complete article at the link.

I agree with Steve Yale-Loehr and other experts that Federal Courts (other, of course, than Judge Hanen in Texas) usually are reluctant to get into the area of prosecutorial discretion (“PD”). During my “Legacy INS” days, we successfully fended off numerous attempts to judicially review PD.

There were two areas, however, where we sometimes got “pushback” from Federal Judges. One involved claims of systematic racial, political, or nationality bias in PD decisions. The other involved claims that the Government had promised foreign nationals PD as an inducement for testimony or evidence in connection with criminal investigations.

Both of these appear to be implicated here. Indeed, Sessions’s anti-immigrant, anti-Latino rant from yesterday, replete with demonstrable misrepresentations and unfounded innuendo, should be a “treasure trove” for plaintiffs.

Additionally, as I pointed out in a blog from earlier this week, some Federal Judges are already on record as finding unfairness in the DHS practice of soliciting applications for humanitarian relief and then using the application information as proof of removability. The overwhelming majority of DACA applicants were not in enforcement proceedings. The came forward to USCIS voluntarily in response to a Government campaign urging them to apply and promising that application information would not be used against them.

In the past, the racially charged bombastic statements of Trump and his minions have been very useful to plaintiffs in making out a case of invidious motivation.

Finally, the claim that the Sessions DOJ is interested in preserving and strengthening the rule of law might well provoke laughter in the courtroom. And, Sessions won’t be able to prosecute Federal Judges for reacting to his disingenuous claims the same way he can threaten his activist critics. Indeed, I can only hope that the Federal Judge assigned to this case is astute enough to note that such a ridiculous claim is being made in behalf of a President who consistently disrespects the Federal Judiciary and whose sole act of clemency to date has been to pardon the notorious racist scofflaw “Sheriff Joe” who was held in contempt of Federal Court. “Rule of law” indeed!

PWS

09-06-17

COURTSIDE COMMENTARY/ANALYSIS: AG Jeff “Gonzo Apocalypto” Sessions Might Be A Clown 🤡 — But His White Nationalist Plan To Destroy The American Justice System Is No Joke — He Has Already Done Untold Damage To Our Country & Our Rights — And, He And His White Supremacist Buddy Steve Bannon, The Alt-Right, And Other Haters Are Just Getting Started On Their Plan To Turn America Into A “Whites Only” Paradise!

Three articles from today show the “clear and present danger” to American democracy, our national security, and our fundamental values stemming from Jeff “Gonzo Apocalypto” Sessions and his radical right — some would say fascist is more accurate — cabal.

While Trump increasingly appears to be a looney incompetent functioning primarily in the early morning “tweetosphere,” Sessions & Co. know a thing or two about how to take over and sabotage government of the people, by the people, and for the people. (Ironically, the “Party of Lincoln” has morphed into the “anti-Lincoln,” opposed to equality, generosity, democracy, and inclusion.)

First, Dana Milbank in the Washington Post describes “Gonzo the Clown’s” ludicrous attempts to use and abuse criminal law to suppress free public expression of opinions:

“Did you hear the one about Jeff Sessions?

I’d like to tell you, but I can’t. You see, it’s illegal to laugh at the attorney general, the man who on Tuesday morning announced that the 800,000 “dreamers” — immigrants brought here illegally as children — could soon be deported. If you were to find my Sessions jest funny, I would be an accessory to mirth.

This is no joke, because liberal activist Desiree Fairooz is now being put on trial a second time by the Justice Department — Jeff Sessions’s Justice Department — because she laughed at Sessions during his confirmation hearing. Specifically, she laughed at a line about Sessions “treating all Americans equally under the law” (which is, objectively, kind of funny).”

Yeah, I guess what Sessions, a well-established liar, probably a perjurer, really meant was “all Americans except Blacks, Hispanics, Asian Americans, immigrants, migrants, Dreamers, gays, lesbians, transgendered, bisexual, criminal defendants, Democrats, non-Christians, protestors, non-GOP women, and the poor.” Read the rest of Dana’s article here:

https://www.washingtonpost.com/opinions/apparently-its-illegal-to-laugh-at-jeff-sessions/2017/09/05/86b6e48a-9278-11e7-aace-04b862b2b3f3_story.html?hpid=hp_no-name_opinion-card-b%3Ahomepage%2Fstory&utm_term=.c6b057add449

But, the following list of hostile actions that Sessions has already taken at Justice, compiled by CNN’s Gregory Krieg, are no laughing matter:

“*Directed federal prosecutors to pursue the stiffest possible charge in every single criminal case — potentially triggering draconian mandatory minimum sentences the Obama administration tried to avoid on fairness grounds for non-violent offenders.

*Withdrawn an Obama administration directive offering protections for transgender students who wanted to use bathrooms corresponding to their gender identity.

*Reversed an Obama DOJ order that the federal Bureau of Prisons back off new deals with private facilities. “I direct the Bureau to return to its previous approach,” Sessions said in a memo citing concerns that the “future needs of the federal correctional system” would be “impaired.”

*Launched a broad-based effort to reduce federal oversight of local police departments, like those put under increased scrutiny following investigations into alleged abuses. The deputy attorney general and associate attorney general were ordered to review lots of things, including all “contemplated consent decrees.”

*In a move criticized by voting rights advocates, asked state election officials in June to lay out their processes for purging voter rolls of individuals who have become ineligible due to, among other reasons, “death or change of residence.”

*Put in place a policy that could pave the way for an increase in a certain kind of civil asset forfeiture, a controversial practice — in this case a joint federal, state and local version that some departments were accused of using to get around state law — that allows police to seize money or property from suspects who haven’t been convicted of a crime. (The DOJ says it has put new safeguards in place to prevent abuse.)

And more.
Consider Trump’s plan to end DACA. When it came down to it, the President steered clear of the spotlight and let Sessions be the public face of a decision officials from both parties have described as unfair or even cruel.
It’s not the first time Trump has been happy enough — or detached enough, depending on your assessment of the his mindset on these issues — to defer to Sessions or, in cases where executive action is required, follow his lead. Where Trump is primarily focused on how he’s covered in the press and how his actions play with “the base,” officials like Sessions and EPA Administrator Scott Pruitt have shown themselves to be laser-focused on very specific policy points.

. . . .

By his side? None other than a once anonymous aide turned top Trump White House official: Stephen Miller.”

Read Gregory’s complete article here:

http://www.cnn.com/2017/09/06/politics/jeff-sessions-donald-trump-daca-policy/index.html

And, in the Washington Post, Sarah Posner puts it all in scary context by describing the Bannon-led White Nationalist’s larger program to turn America into a White Theo-Fascist State:

“Now that he is out of the White House, Bannon’s ambitions, if anything, appear to seek an even more enduring footprint on Republican politics. His grand plan is to remake American conservatism, by shifting it away from its long-standing “three-legged stool” coalition of tax-cutters, defense hawks and the religious right. His strategy is to peel away Christian conservatives from that coalition, and to build a new coalition with anti-immigrant, anti-Muslim, far-right nationalists, in order to make the Trump revolution permanent, even after Trump has left the White House.
Consider the headline on a prominently placed “exclusive” published on the site late last night, which heaps the most coveted of Breitbartian praise on Moore: “Judge Roy Moore Embodies Jeff Sessions.” In an interview with Breitbart, Moore says he shares Sessions’s views on immigration and trade, and that he, too, is a “very strict constructionist of the Constitution.” He says he favors impeaching federal judges, even Supreme Court justices, and singles out Obergefell v. Hodges , the landmark 2015 case legalizing same-sex marriage, as warranting impeachment.
Bannon hinted at some of his designs in an interview with me last year. He said that, without the religious right, his base alone lacks the numbers to “to ever compete against the progressive left.”
In Moore, Bannon has found an unabashed proponent of “biblical law.” Bannon doesn’t appear to care much about “biblical law,” but Moore’s overheated depiction of the overreach of the federal government dovetails with the Bannon goal of “the deconstruction of the administrative state.”
Indeed, the Breitbart-Moore alliance is the most vivid example to date of the anti-government, white-nationalist Breitbart forces teaming up with a candidate with shared views on issues such as immigration and the role of the federal government, but which are driven by outwardly theocratic aspirations. Bannon is not seen as an overtly religious figure, but he has actively sought the religious right’s imprimatur for purely political purposes.
As Politico reports, Bannon himself is now using Breitbart to help “orchestrate the push” for Moore’s candidacy in high-level meetings with influential conservative groups.
There is a good deal of overlap between Bannon’s depiction of Trumpism as a revolt against global elites and Moore’s own rhetoric. Moore has long railed at elitists and “tyrannical” government overreach, albeit from a theocratic point of view. He first became a national hero to the religious right over a decade ago, after he was stripped of his post as chief justice of the Alabama Supreme Court for defying a federal court order to remove a 2.6-ton Ten Commandments monument from the state courthouse, because it violated the separation of church and state.
Undeterred, Moore ran unsuccessfully for governor and then again for his state’s top judicial post, regaining his seat in 2012. After a federal court struck down the state’s ban on same-sex marriage in early 2015, Moore pointedly told Alabama’s governor that complying with the federal court order could violate God’s law.
Although Breitbart hardly teems with religious language, Moore shares its conspiratorially dark vision of America, and particularly America’s perceived enemies. When I saw him speak in 2011, when Barack Obama was still president, Moore maintained: “Our government is infiltrated with communists, we’ve got Muslims coming in and taking over where we should be having the say about our principles.” On immigration, he said the government was failing “to protect against invasions” and was “letting anybody come in!”
Ultimately, the Breitbart-Moore alliance offers a hint at where the Trump base is headed. If Bannon has his way, it will evolve into a kind of coalition of anti-immigrant, anti-Muslim white nationalists seeking to disrupt the GOP from within by joining forces with the Christian right, long an essential component of the GOP base. Whether or not Moore wins, if Bannon can keep pushing the Trumpist base in that direction by continuing to solidify that coalition, we can only guess at the consequences that will have for the GOP over the long term.”

Consequences for the GOP, Sarah? What about the consequences for the world and humanity of turning America into a White Fascist State incorporating the worst parts of Christian mythology, while leaving the kind, merciful, inclusive, and forgiving message of Jesus Christ in the dust?

In the first place, fortunately, only a minority of Americans share the Bannon-Sessions White Nationalist dream. So, making it come to fruition has to involve suppressing and overcoming by unlawful or unconstitutional means the will and rights of those of us in the majority.

That’s an old Bolshevik trick. And, indeed, Bannon is a self-proclaimed “Leninist revolutionary” — Sessions is his Trotsky. (Can’t really picture Stephen Miller as Stalin — but his ability to concoct lies at a moment’s notice and his cold lack of humanity or any discernible decency or human values, along with his disdain for representative government and love of the dictatorial model certainly fits “Papa Joe” to a tee. You could definitely imagine Miller as leader of a Trump “personality cult” in a fascist regime.)

Read Sarah’s complete article here:

https://www.washingtonpost.com/blogs/plum-line/wp/2017/09/05/steve-bannons-grand-disruptive-designs-are-only-getting-started/?utm_term=.80ddcfa9f294

But, that’s not all folks! Intentionally cruel, racist, and gonzo as Sessions’s grand plan of “ethnic cleansing” of Dreamers might be, it would actually cost the US economy an astounding $215 billion, and that’s a conservative estimate that doesn’t even factor in the billions that would be wasted by DHS and EOIR in arresting and deporting America’s future stars (basically, because they aren’t White. As I’ve said before, no sane person thinks we’d be having this orchestrated “immigration debate” if the migrant population were predominantly white, English as a first language, Christians)!

According to Vanessa Wang in Buzzfeed:

“Reversing the Deferred Action for Childhood Arrivals program could cost the economy $215 billion in lost GDP and cost the federal government $60 billion in lost revenue over ten years, according to the libertarian think tank the Cato Institute.
Ike Brannon, a visiting fellow at Cato, wrote in a recent blog post: “It is important to note that these estimates are conservative, as DACA recipients will likely end up being more productive than their current salaries indicate, as they complete their degrees and gain experience in the workplace. Nor does this analysis factor in the enforcement cost of physically deporting recipients should the program be eliminated, which we believe would be significant.”
California, New York and Florida would bear the greatest costs, according to the Cato Institute’s analysis.
The New American Economy — a coalition of business leaders and mayors “who support immigration reforms that will help create jobs for Americans today” — estimated that the DACA-eligible population earns almost $19.9 billion in total income annually, contributes more than $1.4 billion to federal taxes, more than $1.6 billion to state and local taxes and represent almost $16.8 billion in spending power.
“Despite the rhetoric claiming undocumented youths are a drain on the U.S. economy, 90% of the DACA-eligible population who are at least 16 years old are employed” and contribute meaningfully to the economy, the coalition wrote in a brief.
“Ending DACA will disrupt hundreds of thousands of promising careers and cost the US economy dearly,” said John Feinblatt, President of New American Economy in a statement on Tuesday.
On Tuesday, the Department of Homeland Security said it would shut down DACA in six months, potentially giving Congress some time for a legislative solution. House Speaker Paul Ryan has said there are DREAMers “who know no other country, who were brought here by their parents and don’t know another home. And so I really do believe there that there needs to be a legislative solution.”
“Now it’s imperative for Congress to do what’s right and economically smart – protect the young achievers who know no home but America,” said Feinblatt.”

That’s right folks! The Bannon-Sessions White Nationalists would be willing to damage our economy to the the tune of probably a quarter of a trillion dollars for the sheer joy of ruining human lives and entrenching their White Power structure. In most other contexts, there would be a name for such conduct: “domestic terrorism!”

Here’s a link to Vanessa’s article:

https://www.buzzfeed.com/venessawong/scrapping-daca-could-cost-the-economy-as-much-as-215-billion?utm_term=.xdw9nKYOa#.liAZ2w8Y5

Finally, a number folks have noted that DACA is a DHS/USCIS program. So, why was the Attorney General, who pointedly was stripped of his immigration deportation functions and responsibilities by the Act creating DHS, out there acting like he is the deporter-in-chief and administrator of the DHS (which, by statute, he no longer is.)

Well, not suprisingly, I’m not in the Trump Administration’s “inner circle.” So, who knows for sure.

But, to me two things were evident. First, Donald Trump is a coward who didn’t have the guts to be the front man for his own inhumane policy — particularly since Sessions contradicted Trump’s public assurances that he “loved Dreamers,” understood their plight, and that they had “nothing to fear” from him and his Administration because he was going to come up with a”great solution” to their situation.

Second, Sessions has never accepted his secondary statutory and Constitutional role in immigration enforcement. With the weak Gen. Kelly in charge of DHS, Sessions simply pretended like the AG was back at the helm of immigration enforcement. After all, Sessions has spent a lifetime attempting to turn back the clock. This is just the first time that he has gotten away with it without any real opposition.

Kelly was a “bobblehead,” meekly agreeing with Sessions’s most outrageous, unlawful, and inhumane statements. He even lent his name to an infamous Sessions-Miller contrived “letter” asking the President for Travel Ban 2.0 and citing facially bogus statistics and disingenuous arguments attempting to tie individuals from Muslim countries to unrelated terrorist threats. In other words, on immigration enforcement, Kelly’s “substance” was about 1/16″ deep, and I’m being generous.

Obviously, killing the Dreamers’ future while heaping scorn on them was Session’s version of “Super Bowl Sunday:” a chance to publicly reclaim the role of deporter-in-chief, while inflicting gratuitous harm on a gallant but vulnerable (largely non-White) group of young people, and tossing in some gratuitous racist insults and nativist lies in the process. For a guy who has spent a lifetime heretofore unsuccessfully trying to “get back to Jim Crow” (where not coincentally, bogus “rule of law” arguments and “state’s rights” were used by Sessions’s Alabama antecedents to deny Black Americans not only their constitutional rights but in many cases their very lives in the process) this had to be “hog heaven.” Let’s not forget that Sessions has endorsed the blatantly racist and anti-semitic “Immigration Act of 1924” as a model for White Nationalist restrictionist policies. See, e.g.: http://www.slate.com/blogs/the_slatest/2017/09/05/jeff_sessions_praise_of_1924_eugenics_immigration_law_remains_insane.html

I’m sure Gonzo pines for the “good old days” of the Chinese Exclusion Laws when America knew how to use the “rule of law” and just how to treat the folks who built the trans-continental railroad, most of California, lots of New York, and points in between. Declare them to be an “inferior race” — a threat to our cultural integrity — and throw them out before they can displace the White Americans who exploited their ingenuity and hard labor.

Also, make no mistake about it, if Sessions were able to carry out his gonzo plans to deport Dreamers to foreign lands that most of them have hardly lived in, some will actually die in the process. But, hey, the lives of non-Whites are just “collateral damage” in the Bannon-Sessions world vision.

Sessions is part of our nation’s racist, White Supremacist past that we will need to get beyond to continue to prosper as a country and to lead the free world. The Dreamers can help us do that! The only question for the rest of us is what legal channels are available to move Sessions and his cohorts out of the way so that the Dreamers, along with other immigrants and minorities, can help lead us to a brighter future as a proudly diverse, humane, and powerful nation.

Liz Warren was right! America is better than Jeff Sessions! It’s time we showed it!

PWS

09-05-17

BREAKING: “GONZO APOCALYPTO” IS POLITICAL POINT MAN FOR ENDING DACA — TRUMP HIDES DURING ANNOUNCEMENT — AG Doesn’t Know Enough Law To Defend African American Voters Or American Kids — Other AGs Able To Do Both — Time For A “Competency Check?”

https://www.washingtonpost.com/news/post-politics/wp/2017/09/05/trump-administration-announces-end-of-immigration-protection-program-for-dreamers/?hpid=hp_rhp-top-table-main_daca-1110a-duplicate%3Ahomepage%2Fstory&utm_term=.7cbb30e0641e

David Nakamura reports for the Washington Post:

“In announcing the decision at the Justice Department, Attorney General Sessions said that former president Barack Obama, who started the program in 2012 through executive action, “sought to achieve specifically what the legislative branch refused to do.”

He called it an “open-ended circumvention of immigration law through unconstitutional authority by the executive branch,” and said the program was unlikely to withstand court scrutiny.

The Department of Homeland Security said it would no longer accept new applications for Deferred Action for Childhood Arrivals, which has provided renewable, two-year work permits to nearly 800,000 dreamers. The agency said those currently enrolled in DACA will be able to continue working until their permits expire; those whose permits expire by March 5, 2018, will be permitted to apply for two-year renewals as long as they do so by Oct. 5.

New applications and renewal requests already received by DHS before Tuesday will be reviewed and validated on a case-by-case basis, even those for permits that expire after March 5, officials said.

Trump administration officials cast the decision as a humane way to unwind the program and called on lawmakers to provide a legislative solution to address the immigration status of the dreamers. Senior DHS officials emphasized that if Congress fails to act and work permits begin to expire, dreamers will not be high priorities for deportations — but they would be issued notices to appear at immigration court if they are encountered by federal immigration officers.

. . . .

Sessions wrote a memo Monday calling DACA unconstitutional, leading acting Homeland Security Secretary Elaine Duke to issue a memo Tuesday to phase out the program. The decision came on the day set by Texas and several other states to pursue a lawsuit against the Trump administration if it did not terminate DACA.

It is unclear whether the states will still move forward with legal action.

“As a result of recent litigation,” Duke said in a statement, “we were faced with two options: wind the program down in an orderly fashion that protects beneficiaries in the near-term while working with Congress to pass legislation; or allow the judiciary to potentially shut the program down completely and immediately. We chose the least disruptive option.”

. . . .

The fight now could shift to Congress to act on a bill to grant permanent legal status to the dreamers. A bill called the Dream Act that would have offered them a path to citizenship failed in the Senate in 2010. Several new proposals have been put forward, including the Bridge Act, a bipartisan bill with 25 co-sponsors that would allow extend DACA protections for three years to give Congress time to enact permanent legislation.

But the White House and conservative Republicans could hold out for additional provisions to boost border security, such as funding for Trump’s proposed border wall or new measures to restrict legal immigration.

If DACA is shuttered next year, more than 1,000 immigrants stand to lose their work permits each day once the program is rescinded, according to a recent study by the Center for American Progress, a liberal think tank. Business leaders from major companies, including Apple, Facebook and Google, had lobbied the White House not to terminate the program, citing the economic consequences.”

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

Gee, advance concern that a Federal Court might shut down a program is a new one for Gonzo and the Trumpsters. Didn’t seem to inhibit him from arguing some pretty off the wall positions in defense of the Travel Ban, Sanctuary Cities, or why the Voting Rights Act doesn’t protect voting rights.

And we all know how statements like “they aren’t an enforcement priority” work out in practice. The majority of this Administration’s removals are folks who aren’t “priorities.”

And, notably, neither Kelly nor Duke at DHS had the courage and backbone to rein in arbitrary, wasteful enforcement by immigration agents. So, in the end, it makes no difference what the DHS “fake priorities” are; the line agents will bust anybody the feel like busting — because they can. And, after all, busting law abiding members of the community, often when they show up at DHS to check in or seek relief, is easier than tracking down real criminals. Makes the numbers look good, particularly when you obscure the fact that behind each number is a human face that belongs to a real person. Mostly ordinary people, just like the rest of us.

Also, sticking them on the already overwhelmed Immigration Court dockets without some realistic court reform aimed at restoring due process and wise use of “prosecutorial discretion” to keep cases exactly like the Dreamers off the court dockets? It’s “gonzo!” Big time!

There was a time when the Attorney General and the U.S. Department of Justice stood up for justice for all Americans, including the most vulnerable. But, that was then, this is now. Liz was “right on.”

PWS

09-05-17

THE HILL: RAPPAPORT ON TEXAS INJUNCTION OF PARTS OF SB 4 — City of El Cenizo v. State of Texas

http://thehill.com/blogs/pundits-blog/immigration/349103-texas-courts-pro-sanctuary-cities-decision-can-cripple

Nolan writes:

“At the end of August, a federal district court in Texas ruled against that state, halting an immigration enforcement law shortly before it was to go into effect.

The court issued a preliminary (temporary) injunction to halt the implementation of five allegedly unconstitutional provisions in Texas’ anti-sanctuary city law, Senate Bill 4 (SB 4), including one that would require law enforcement agencies in Texas to “comply with, honor, and fulfill” any immigration detainer issued by U.S. Immigration and Customs Enforcement (ICE).

This means that the court found a substantial likelihood that the plaintiffs (in this case, the parties opposing the state of Texas) will succeed in establishing that those provisions are unconstitutional when a decision is rendered on the merits of the case.

If the decision on ICE detainers is correct, which seems to be the case, it could cripple ICE’s ability to prevent removable criminal aliens from absconding when they are released from custody by state and local law enforcement agencies.

. . . .

When Texas Governor Greg Abbott signed SB 4 into law, he said that denying detainer requests can have deadly consequences. This is illustrated by the case of Kate Steinle, who was shot dead by a criminal alien while she was walking with her father on a busy pier in San Francisco.

The alien was a repeat felon who had been deported five times, but the police department that had been holding him released him in disregard of a detainer request because San Francisco is a sanctuary city that does not honor detainer requests.

Preventing the use of detainers could have unintended consequences. If other federal courts agree with the decision’s disposition of the detainer issue; state and local police in every part of the country may have to stop honoring detainer requests, and ICE could use the time that would have been spent following up on detainers to go after noncriminal aliens.

ICE can encourage state and local police departments to participate in the federal 287(g) Program, which allows participants to enter into a partnership with ICE on the basis of a Memorandum of Agreement (MOA). They would receive training on immigration enforcement and delegated immigration authority, which includes the option of being able to detain aliens on the basis of detainers.

But ICE does not have the resources to train and supervise police in all of the state and local law enforcement agencies in the country.

The only solution is for Congress to grant state and local police the authority to detain aliens on the basis of an ICE detainer.”

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

Read Nolan’s complete analysis over at The Hill at the link.

I agree with Nolan that the Chief District Judge Orlando L. Garcia’s analysis of SB 4’s constitutional infirmities appears to be correct. I also agree that rationale should eventually require DHS to change its detainer policy nationwide to meet constitutional standards.

That means that a battery of DHS and DOJ attorneys, of which there is no shortage, will have to work with the enforcement branches to come up with effective enforcement methods that comply with our Constitution. Stuff like that happens all the time. That’s why the Government needs good lawyers.

I don’t agree with Nolan that the only way for DHS to function is for Congress to pass legislation turning untrained local cops into immigration officers for the purpose of honoring detainers. Seems like you end up with the same problem, just “dressed up” differently.

I spent over a decade working for the Legacy INS on immigration enforcement matters. Nobody ever doubted that immigration officers could effectively carry out their duties 1) in full compliance with the U.S. Constitution, and 2) without relying on state and local officials. Indeed, the “mantra” of INS Enforcement in those days was “we’re the immigration pros, leave enforcement to us.” I guess times must have changed; but not that much. And, the Fourth Amendment hasn’t changed at all.

I also don’t buy the claim that Abbott was interested in protecting Texans from dangerous crime. No, this was about a White Nationalist agenda designed to put down minorities, particularly in the Latino community, and prevent them from getting their fair share of political power. That’s why, although Latinos make up a large proportion of Texas’s population, Latino leaders generally opposed the GOP’s and Abbott’s racially divisive action.

A bill really aimed at protecting all Texans, regardless of ethnicity or status, from violent crime would have received support from about 98% of residents (who really wants to be a victim of violent crime — almost nobody, as the BIA has observed on a number of occasions) including the overwhelming number of Latinos. That it didn’t, and that a majority-Latino jurisdiction like El Cenizo is the lead plaintiff opposing the bill says all you need to know about the SB 4’s White Nationalist intent.

There will come a day when the Abbotts, Paxtons, and other denizens of the Texas White GOP will have to share power equitably with Latino and other minority Texans. When that happens, they can only hope that Latino leaders and politicians will have short memories, forgive the racism of the past, and move on to the future treating them with greater respect and consideration than they deserve based on their recent “sharp stick in the eyes” words and actions.

Until that happens — well, as I’ve said before, lots of work for lawyers and judges.

PWS

09-04-17

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