"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
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
“Immigration arrests rose 32.6 percent in the first weeks of the Trump administration, with newly empowered federal agents intensifying their pursuit of not just undocumented immigrants with criminal records, but also thousands of illegal immigrants who have been otherwise law-abiding.
U.S. Immigration and Customs Enforcement arrested 21,362 immigrants, mostly convicted criminals, from January through mid-March, compared to 16,104 during the same period last year, according to statistics requested by The Washington Post.
Arrests of immigrants with no criminal records more than doubled to 5,441, the clearest sign yet that President Trump has ditched his predecessor’s protective stance toward most of the 11 million undocumented immigrants in the United States.
Advocates for immigrants say the unbridled enforcement has led to a sharp drop in reports from Latinos of sexual assaults and other crimes in Houston and Los Angeles, and terrified immigrant communities across the United States. A prosecutor said the presence of immigration agents in state and local courthouses, which advocates say has increased under the Trump administration, makes it harder to prosecute crime.
“My sense is that ICE is emboldened in a way that I have never seen,” Dan Satterberg, the top prosecutor in Washington state’s King County, which includes Seattle, said Thursday. “The federal government, in really just a couple of months, has undone decades of work that we have done to build this trust.”
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Unfocused enforcement pouring cases into an already “saturated” U.S. Immigration Court system is a prescription for disaster. Moreover, because it would be impossible to remove all of the approximately 11 million individuals here without authorization, just arresting anyone an agent might encounter who is potentially removable will be highly arbitrary.
PWS
04-16-17
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
First, the Washington Post ripped Sessions’s “embarrassing” withdrawal of support from African Americans and other minorities challenging the State of Texas’s scheme to disenfranchise them. A Federal Judge has twice found in favor of the plaintiffs — once with the DOJ’s support and once without!
“BLASTING “A PATTERN of conduct unexplainable on nonracial grounds, to suppress minority voting,” U.S. District Court Judge Nelva Gonzales Ramos on Monday repudiated Texas’s voter-ID law, the strictest in the country. Asked by appeals court judges to reconsider her expansive 2014 ruling against the law using slightly different evidence, Ms. Ramos reaffirmed her previous determination that “the law places a substantial burden on the right to vote, which is hardly offset by Texas’s claimed benefits to voting integrity.” She found that racial discrimination was at least a partial motivation for the law, a step toward reestablishing federal supervision over Texas’s voting procedures, per the Voting Rights Act.
Given the ruling and the mountain of evidence, it is embarrassing that the Trump Justice Department dropped its support for the contention that the Texas voter law is purposely discriminatory.
The legal question is not close. “There has been a clear and disturbing pattern of discrimination in the name of combating voter fraud,” Ms. Ramos wrote in 2014. The only type of fraud the law could combat — voter impersonation — hardly ever happens. Meanwhile, the law’s backers knew it would disproportionately impact minority voters; in fact, they designed it so. “The Texas Legislature accepted amendments that would broaden Anglo voting and rejected amendments that would broaden minority voting,” Ms. Ramos found in her 2014 examination. Texas accepts relatively few forms of identification at the polls, and those it does accept, such as gun licenses, are those white Texans tend to hold. Unlike many voter-ID states, Texas does not relax ID rules much for the elderly or the indigent, though obtaining an accepted ID can be surprisingly time-consuming and expensive.”
Read the complete editorial here: https://www.washingtonpost.com/opinions/its-time-for-the-justice-department-to-disown-texass-discriminatory-voting-law/2017/04/13/ee63a0e0-1ef7-11e7-ad74-3a742a6e93a7_story.html
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Meanwhile, A NY Times editorial slammed Session’s disingenuous plan to make immigrants the “#1 target” of law enforcement in the “Trump era.” The emphasis is mine.
Here’s the full editorial:
Attorney General Jeff Sessions went to the border in Arizona on Tuesday and declared it a hellscape, a “ground zero” of death and violence where Americans must “take our stand” against a tide of evil flooding up from Mexico.
It was familiar Sessions-speak, about drug cartels and “transnational gangs” poisoning and raping and chopping off heads, things he said for years on the Senate floor as the gentleman from Alabama. But with a big difference: Now he controls the machinery of federal law enforcement, and his gonzo-apocalypto vision of immigration suddenly has force and weight behind it, from the officers and prosecutors and judges who answer to him.
When Mr. Sessions got to the part about the “criminal aliens and the coyotes and the document forgers” overthrowing our immigration system, the American flag behind him had clearly heard enough — it leaned back and fell over as if in a stupor. An agent rushed to rescue it, and stood there for the rest of the speech: a human flag stand and metaphor. A guy with a uniform and gun, wrapped in Old Glory, helping to give the Trump administration’s nativist policies a patriotic sheen.
It was in the details of Mr. Sessions’s oratory that his game was exposed. He talked of cities and suburbs as immigrant-afflicted “war zones,” but the crackdown he seeks focuses overwhelmingly on nonviolent offenses, the document fraud and unauthorized entry and other misdeeds that implicate many people who fit no sane definition of brutal criminal or threat to the homeland.
The problem with Mr. Sessions’s turbocharging of the Justice Department’s efforts against what he paints as machete-wielding “depravity” is how grossly it distorts the bigger picture. It reflects his long fixation — shared by his boss, President Trump — on immigration not as an often unruly, essentially salutary force in American history, but as a dire threat. It denies the existence of millions of people who are a force for good, economic mainstays and community assets, less prone to crime than the native-born — workers, parents, children, neighbors and, above all, human beings deserving of dignity and fair treatment under the law.
Mr. Sessions is ordering his prosecutors to make immigration a priority, to consider prosecution in any case involving “transportation and harboring of aliens” and to consider felony charges for an extended menu of offenses, like trying to re-enter after deportation, “aggravated identity theft” and fraudulent marriage.
He said the government was now detaining every adult stopped at the border, and vowed to “surge” the supply of immigration judges, to increase the flow of unauthorized immigrants through the courts and out of the country. He has ordered all 94 United States attorney’s offices to designate “border security coordinators,” no matter how far from “ground zero” they are.
Mr. Sessions and the administration are being led by their bleak vision to the dark side of the law. The pieces are falling into place for the indiscriminate “deportation force” that the president promised. Mr. Sessions and the homeland security secretary, John Kelly, have attacked cities and states that decline to participate in the crackdown. Mr. Sessions has threatened these “sanctuary” locales with loss of criminal-justice funding, on the false assertion that they are defying the law. (In fact, “sanctuary” cities are upholding law and order. They recognize that enlisting state and local law enforcement for deportation undermines community trust, local policing and public safety.)
Mr. Kelly recently told a Senate committee that all unauthorized immigrants are now potential targets for arrest and deportation. And so an administration that talks about machete-waving narco killers is also busily trying to deport people like Maribel Trujillo-Diaz, of Fairfield, Ohio, the mother of four citizen children, who has no criminal record.
“Be forewarned,” Mr. Sessions said in Arizona. “This is a new era. This is the Trump era.”
Let’s talk about this era. It’s an era when the illegal border flow, particularly from Mexico, has been falling for 20 years. When many of those arriving from Central America immediately surrender to border agents — having fled to the United States to find safety, not to do it harm. When American border cities enjoy safety and vitality, thanks to immigrants. When a large portion of the unauthorized population has lived here for years, if not decades, with clean records and strong roots. When polls show that Americans back reasonable and humane immigration policies giving millions a chance to get right with the law.
President Trump has shown his mind to be a place where ideas and principles can morph without warning or explanation. It is a vacuum that allows ideologues like Mr. Sessions — who know their minds — to do their worst. On immigration, that is a frightening thing to contemplate.
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“Gonzo-Apocalypto” has to be the “word of the day.” What a perfect term to describe Jeff Sessions.
In a grotesque display of disingenuous hypocrisy, Sessions referred to “drug cartels and ‘transnational gangs’ poisoning and raping and chopping off heads.” These are exactly the things causing scared, defenseless women and children to flee for their lives from the Northern Triangle and seek refuge in the U.S. But, instead of refuge they find: well, Jeff Sessions, Donald Trump, Steve Bannon, Stephen Miller, Gen. John Kelly and others anxious to stomp out their humanity in the false name of “law enforcement.”
Turning to civil rights, I watched on the TV news last night two clips of brutal beatings and stompings of African Americans by white police officers. One victim was accused of “jaywalking” — that’s right, “jaywalking.” The other was “driving without a license plate.” I was wondering how, after all the recent publicity, those officers could have engaged in such conduct, “on camera” no less.
Unfortunately, the answer is pretty simple “Black Lives Don’t Matter,” an attitude that obviously has just become instinctive for too many U.S. police officers. I couldn’t imagine a white pedestrian or a white motorist being treated that way in our multi-racial but predominantly white neighborhood.
Yes, the officers involved were disciplined. I believe that most or all of them were either fired, prosecuted, or both. But, that’s not the point!
The object is to prevent misuse of force by police, not to fire, prosecute, or otherwise discipline more policemen. And, prevention without compromising effectiveness of policing is exactly what the carefully crafted “consent decrees” with some problematic cities developed by the Civil Rights Division under AGs Loretta Lynch and Eric Holder achieved.
Those are the very decrees that Sessions immediately announced an intent to “review” with an obvious eye toward withdrawing or undermining them. Look at the childish behavior in the U.S. District Court in Baltimore, MD, when DOJ attorneys, acting on Sessions’s behalf, withdrew their support from the consent decree and basically refused to participate in a long-scheduled public hearing. Fortunately, the judge has the good sense to go ahead and approve and finalize the consent decree without any participation by DOJ, leading to even more childish whining from Sessions about the horrors of infringing on local law enforcement in the name of African American citizen’s constitutional rights.
The very public “green light” that Sessions has given to law enforcement to run over citizen’s rights as they please, without any fear of DOJ intervention, so long as they are “enforcing the law” — like busting jaywalkers, license plate violators, and presumably undocumented aliens — no doubt plays a role in the continuing anti-minority policing being conducted by some law enforcement agencies.
Sessions “bristles” when anyone uses the term “racist” to describe him. Sessions was given a chance to make good on his (obviously false) promise during his confirmation hearings to turn over a new leaf and look at the responsibilities of being Attorney General for all Americans differently from representing Alabama in the U.S. Senate.
Unfortunately, his actions have proved that all of the charges his detractors made against him are as true now as they were when he was, quite properly, denied a U.S. judgeship many decades ago. If the shoe fits, wear it. And, sadly, this “shoe” fits Sessions “like a glove.” Liz was “right on.”
Finally, DHS Secretary John Kelly will see his distinguished career in public service end in ignomany if he continues “toadying up” to the ethno-nationalist views of the Sessions-Bannon-Miller crowd on immigration enforcement. Most of the arrests, deportations, detentions, denials of asylum, and removals Sessions is touting in his haste to become the new “Immigration Czar,” actually are within the jurisdiction of DHS. But, these days, you’d hardly know that Sessions isn’t in charge of DHS enforcement as well as Justice. If Kelly isn’t careful, he’s going to develop a neck injury from constantly nodding his head to every absurd “gonzo-apocalypto” immigration enforcement initiative announced by Sessions.
PWS
04-14-17
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
Reliable sources have now confirmed what I reported in this blog earlier this week (http://wp.me/p8eeJm-Ge): the DOJ has eliminated the U.S. Immigration Court’s only formal annual training. U.S. Immigration Judges have been ordered to schedule cases during the week normally reserved for advanced training, continuing judicial education, and professional development.
This news couldn’t come at a worse time for the beleaguered U.S. Immigration Courts. Dozens of new U.S. Immigration Judges have been appointed in the last year, most of whom have never met their judicial colleagues across the nation.
Moreover, this would be their only opportunity beyond some brief “basic training” to pursue continuing judicial education in this complex, controversial, and ever-changing field. It’s also an opportunity to “catch jump” on what all the Circuit Courts of Appeals are doing, as well as to hear from BIA Appellate Immigration Judges about developments at the Board. Additionally, it is a key opportunity to address the disturbing, continuing problem of inexplicable discrepancies in asylum adjudication (84% grant rate in one Immigration Court; 2% grant rate in another) within the Immigration Court system.
Some of the training at the Annual Conference is statutorily required, such as updates under the International Religious Freedom Act, which, perhaps ironically, often highlights the persecution faced by Christian groups in China and the Middle East, a subject on which the Administration has expressed concern. Other sessions cover ethics training required by DOJ regulations.
In addition, the DOJ considers U.S. Immigration Judges to be “DOJ attorneys.” As a consequence, judges are required to maintain “active” status in at least one state bar, even though they perform only quasi-judicial duties and therefore would be eligible for “active judicial status” in many states.
The Annual Conference usually meets the “mandatory CLE” requirements of various state bars. But, when there is no Annual Conference, individual judges must take leave from the bench to complete the coursework required by their respective state bars. Therefore, Immigration Judges are off the bench learning about state real estate transactions and changes in tort law, when they could instead be advancing their knowledge in immigration and refugee law as well as “best judicial practices” in Federal Courts.
I get frequent reports of cratering morale among Immigration Judges and court staff, increases in the already extraordinary levels of stress, and impending retirements of some of the best and most experienced judges. Some Immigration Judges returning from details to hastily thrown together so-called “Immigration Courts” in DHS detention centers were shocked, upset, and angered to see with their own eyes that individuals with viable claims for relief, most of them asylum or related protection, were being “duressed” by the coercive conditions and atmosphere in DHS detention to abandon their claims and take “final orders of removal,” just to be out of detention. And, the Administration is just getting started on its plans for “Incarceration Nation.”
Lawyers report that they show up at Immigration Court with clients and witness in tow prepared for merits cases which have been pending for years, only to find out that the cases have been rescheduled to a dates several more years in the future, without advance notice, so that the Immigration Judges can be detailed to a detention centers in other parts of the country.
When is Congress finally going to step in and provide some meaningful oversight of the unfolding due process disaster in U.S. Immigration Courts? Regardless of where one stands on the philosophical issues surrounding immigration enforcement, providing due process and complying with constitutional, statutory, and international treaty obligations, including reasonable access to counsel (which is not available in most DHS detention center locations), should be a bipartisan priority.
Isn’t it time for a bipartisan group of GOP legislators concerned about the billions of dollars being mindlessly poured into immigration enforcement and Democrats who are concerned about due process getting together and holding the Trump Administration accountable for what’s really happening in our Immigration Courts?
PWS
04-13-17
https://populardemocracy.org/sites/default/files/DC_Access_to_Counsel_rev4_033117 (1).pdf
This report (see link) was prepared and issued by the Center For Popular Democracy. Here are some key findings:
Read the entire report which has some case histories in addition to charts and graphs.
The findings are disturbing because the Arlington and Baltimore Immigration Courts generally are considered among the best in the nation in striving to provide due process. The judges in each court are committed to representation and often go out of their way to encourage and facilitate the appearance of counsel. The ICE Chief Counsel’s Offices also appreciate and support pro bono representation.
Additionally, as noted in the report, the DC-Baltimore metropolitan area has a number of great organizations dedicated to providing pro bono lawyers, as well as local practitioners, “big law” firms, and numerous outstanding law school clinics, all of which support the pro bono program.
Yet even under these generally favorable conditions, the overwhelming majority of individuals on the detained dockets in both courts appear pro se, without a lawyer. And, the results with a lawyer are very significantly better than for those forced to represent themselves.
I fear that the new program of expanded immigration detention being planned by DHS, with courts operating in obscure, out of the way locations along the Southern Border, will further impede already limited access to counsel and therefore further degrade due process in our U.S. Immigration Courts.
Frankly, I have not seen any mention of the importance of due process or facilitating access to counsel in any of the many Trump Administration pronouncements on immigration. It’s all about enforcement, detention, removals, and prosecutions. Fairness and due process, which should always be paramount concerns, appear to be ignored.
In the end, it likely will be up to the already overworked and stressed pro bono bar, human rights groups, and community-based NGOs to enforce immigrants’ rights to counsel and to full due process. And, ultimately, that’s probably going to require litigation and intervention by the Article III Courts.
Thanks to Adina Appelbaum, who worked on this report, for bringing it to my attention.
PWS
04/13/17
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
http://www.reuters.com/article/us-usa-immigration-judges-idUSKBN17D2SI
Julia Edwards Ainsley and Kristina Cooke report in Reuters:
“Two U.S. immigration judges recently sent to the Mexico border to process asylum requests from migrant women and children are being recalled as they have so few cases to hear, according to two people familiar with the matter.
The dearth of cases at two Texas facilities where the judges are based can be traced to a sharp drop in illegal border crossings by women and children since U.S. President Donald Trump took office in January.
Eight immigration judges were reassigned from their regular courts to detention centers at the border beginning on March 20 as part of Trump’s executive order to curb illegal immigration.
Six of the judges have had full dockets, handling dozens of cases per week. But the two at detention centers housing women and children in Dilley and Karnes County, Texas had so few cases their presence was deemed a waste of resources by the U.S. Department of Justice, according to one of the sources.
The Department of Justice did not immediately respond to a request for comment.
The number of parents and children apprehended at the U.S. Mexico border in March dropped to just over 1,000, a 93 percent fall from December, the Department of Homeland Security reported last week.
The decline follows Trump’s harsh rhetoric on illegal immigration and policies which classify almost all illegal migrants as subject to deportation.
The judges were deployed to the border in an effort to quickly hear the claims of migrants seeking asylum so that those deemed ineligible could be deported.
In more than three weeks at the border, the judge in Dilley had no hearings and the judge in Karnes County had four, according to a spokeswoman for the U.S. Department of Justice’s Executive Office of Immigration Review. [emphasis added].
. . . .
The judges deployed to the border left behind scheduled hearings in their home courts. As of early March, immigration courts were weighed down by a record backlog of more than 542,000 cases.”
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Haste makes waste. Meddling by political officials with no understanding of how the Immigration Court system works and who are not committed to due process and fairness as “mission one” has no place in our U.S. Immigration Court system, or indeed in our American system of justice. America needs an independent Article I Immigration Court now!
To further illustrate how money is being misdirected and due process undermined by the DOJ’s mal-administration of the U.S. Immigration Courts, I have heard “rumors” from several sources that the annual U.S. Immigration Judge Training Conference will be cancelled this year. This is despite some obvious quality control issues, such as gross disparities in asylum grant rates and and a gradual uptick in critical comments about the legal and factual quality of decisions by both trial and appellate judges made by some U.S. Courts of Appeals as they review removal orders. Moreover, with dozens of newly-hired Immigration Judges on board who have never attended a national training conference, there has never been a more critical time for effective, in-person training. While money is being poured down the drain on expensive, unneeded, and inappropriate details of judges, the real needs of the court system are going unmet by the DOJ.
PWS
04/12/17
Aruna Viswanatha reports in the WSJ:
“Attorney General Jeff Sessions directed federal prosecutors to pursue harsher charges against undocumented immigrants who commit crimes, or repeatedly cross into the U.S. illegally, and promised to add 125 immigration judges in the next two years to address a backlog of immigration cases.
The moves are part of the administration’s efforts to deter illegal immigration and is meant to target gangs and smugglers, though non-violent migrants could also face more severe prosecutions.
In a memo issued Tuesday, Mr. Sessions instructed prosecutors to make a series of immigration offenses “higher priorities,” including transporting or harboring illegal immigrants, illegally entering or reentering the country, or assaulting immigration enforcement agents.
In remarks to border patrol agents at the U.S.-Mexico border in Nogales, Arizona on Tuesday, Mr. Sessions spoke in stark terms about the threat he said illegal immigration poses.
“We mean criminal organizations that turn cities and suburbs into warzones, that rape and kill innocent citizens,” Mr. Sessions said, according to the text of his prepared remarks. “It is here, on this sliver of land, where we first take our stand against this filth.”
“This is a new era. This is the Trump era,” Mr. Sessions said.
Former prosecutors said they didn’t expect the memo to dramatically impact U.S. attorneys offices along the southern border, which already bring thousands of such cases each year. They said it could impact those further inland, which haven’t historically focused on immigration violations.
In the fiscal year that ended in September 2016, 52% of all federal criminal prosecutions involved immigration-related offenses, according to Justice Department data analyzed by Transactional Records Access Clearinghouse at Syracuse University.
. . . .
Immigration advocates said they worried that the memo and tone set by the administration was describing a closer link between criminal behavior and immigration than statistics show.
“We are seeing an over-emphasis on prosecuting, at the federal level, immigration, illegal entry and reentry cases, and far less paid to criminal violations that implicate public safety,” said Gregory Chen, director of advocacy for the American Immigration Lawyers Association.”
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On April 8, 2017, Sari Horowitz reported in the Washington Post on how Sessions’s enthusiastic plans to reinstitute the largely discredited “war on drugs” is likely to “jack up” Federal Prison populations:
“Crime is near historic lows in the United States, but Sessions says that the spike in homicides in several cities, including Chicago, is a harbinger of a “dangerous new trend” in America that requires a tough response.
“Our nation needs to say clearly once again that using drugs is bad,” Sessions said to law enforcement officials in a speech in Richmond last month. “It will destroy your life.”
Advocates of criminal justice reform argue that Sessions and Cook are going in the wrong direction — back to a strategy that tore apart families and sent low-level drug offenders, disproportionately minority citizens, to prison for long sentences.
“They are throwing decades of improved techniques and technologies out the window in favor of a failed approach,” said Kevin Ring, president of Families Against Mandatory Minimums (FAMM).”
. . . .
Cook and Sessions have also fought the winds of change on Capitol Hill, where a bipartisan group of lawmakers recently tried but failed to pass the first significant bill on criminal justice reform in decades.
The legislation, which had 37 sponsors in the Senate, including Sen. Charles E. Grassley (R-Iowa) and Mike Lee (R-Utah), and 79 members of the House, would have reduced some of the long mandatory minimum sentences for gun and drug crimes. It also would have given judges more flexibility in drug sentencing and made retroactive the law that reduced the large disparity between sentencing for crack cocaine and powder cocaine.
The bill, introduced in 2015, had support from outside groups as diverse as the Koch brothers and the NAACP. House Speaker Paul D. Ryan (R-Wis.) supported it, as well.
But then people such as Sessions and Cook spoke up. The longtime Republican senator from Alabama became a leading opponent, citing the spike in crime in several cities.
“Violent crime and murders have increased across the country at almost alarming rates in some areas. Drug use and overdoses are occurring and dramatically increasing,” said Sessions, one of five members of the Senate Judiciary Committee who voted against the legislation. “It is against this backdrop that we are considering a bill . . . to cut prison sentences for drug traffickers and even other violent criminals, including those currently in federal prison.”
Cook testified that it was the “wrong time to weaken the last tools available to federal prosecutors and law enforcement agents.”
After GOP lawmakers became nervous about passing legislation that might seem soft on crime, Senate Majority Leader Mitch McConnell (R-Ky.) declined to bring the bill to the floor for a vote.
“Sessions was the main reason that bill didn’t pass,” said Inimai M. Chettiar, the director of the Justice Program at the Brennan Center for Justice. “He came in at the last minute and really torpedoed the bipartisan effort.”
Now that he is attorney general, Sessions has signaled a new direction. As his first step, Sessions told his prosecutors in a memo last month to begin using “every tool we have” — language that evoked the strategy from the drug war of loading up charges to lengthen sentences.
And he quickly appointed Cook to be a senior official on the attorney general’s task force on crime reduction and public safety, which was created following a Trump executive order to address what the president has called “American carnage.”
“If there was a flickering candle of hope that remained for sentencing reform, Cook’s appointment was a fire hose,” said Ring, of FAMM. “There simply aren’t enough backhoes to build all the prisons it would take to realize Steve Cook’s vision for America.”
. . . .
Sessions’s aides stress that the attorney general does not want to completely upend every aspect of criminal justice policy.
“We are not just sweeping away everything that has come before us.” said Robyn Thiemann, the deputy assistant attorney general in the Office of Legal Policy, who is working with Cook and has been at the Justice Department for nearly 20 years. “The attorney general recognizes that there is good work out there.”
Still, Sessions’s remarks on the road reveal his continued fascination with an earlier era of crime fighting.
In the speech in Richmond, he said, “Psychologically, politically, morally, we need to say — as Nancy Reagan said — ‘Just say no.’ ”
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Not surprisingly, Sessions’s actions prompted a spate of critical commentary, the theme of which was the failure of the past “war on drugs” and “Just say no to Jeff Sessions.” You can search them on the internet, but here is a representative example, an excerpt from a posting by Rebecca Bergenstein Joseph in “Health Care Musings:”
“We Can’t Just Say No
Posted on April 9, 2017 by Rebecca Bergenstein Joseph
Three decades ago, Nancy Reagan launched her famous anti-drug campaign when she told American citizens, “Say yes to your life. And when it comes to alcohol and drugs, just say no.” 1 Last month, Attorney General Jeff Sessions invoked the former First Lady’s legacy in a speech to Virginia law enforcement when he said, “ I think we have too much tolerance for drug use– psychologically, politically, morally. We need to say, as Nancy Reagan said, ‘Just say no.’”2 As our nation is confronted on a daily basis with the tragic effects of the opioid epidemic, it is important that we understand just how dangerous it is to suggest that we return to the ‘just say no’ approach.
In the 1980s and 1990s, the ‘just say no’ curriculum became the dominant drug education program nationwide in the form of DARE.3 The DARE program– Drug Abuse Resistance Education– was developed in 1983 by the Los Angeles police chief in collaboration with a physician, Dr. Ruth Rich. The pair adapted a drug education curriculum that was in the development process at University of Southern California in order to create a program that would be taught by police officers and would teach students to resist the peer pressure to use alcohol and drugs. With the backdrop of the War on Drugs that had continued from the Nixon presidency into the Reagan era, DARE grew quickly. Communities understandably wanted to prevent their children from using alcohol and drugs. The program was soon being used in 75% of schools nationwide and had a multimillion dollar budget.3 In fact, I would bet that many of you reading this are DARE graduates. I certainly am.
It did not take long for there to be research showing that the ‘just say no’ approach used in DARE was not working. By the early 1990s there were multiple studies showing that DARE had no effect on its graduates choices regarding alcohol and drug use.4 The decision to ignore the research about DARE culminated when the National Institute of Justice evaluated the program in 1994, concluded that it was ineffective, and proceeded to not publish this finding. In the 10 years that followed, DARE was subjected to evaluation by the Department of Education, the U.S Surgeon General’s Office, and the Government Accountability Office.4 The combined effect of these evaluations was the eventual transformation of DARE into an evidence-based curriculum, Keepin’ It REAL, which was released in 2011.5 But this only happened after billions of dollars were spent on a program that did not work and millions of students received inadequate drug education.
And yet, here we are again. The top law enforcement officer in our nation is suggesting that we go back to the days where elementary and middle school students were told that all they needed to do was ‘just say no.’”
Read the complete post here:
https://sites.tufts.edu/cmph357/author/rjosep06/
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Finally, just yesterday, on April 10, 2017, Spenser S. Hsu reported in the Washington Post that Sessions was “canning” the “National Commission on Forensic Science, a roughly 30-member advisory panel of scientists, judges, crime lab leaders, prosecutors and defense lawyers chartered by the Obama administration in 2013” as a consultant to the DOJ on proper forensic standards.
In plain terms, in Session’s haste to rack up more criminal convictions and appear “tough on crime,” the quality of the evidence or the actual guilt or innocence of those charged becomes merely “collateral damage” in the “war on crime.”
Here’s a portion of what Hsu had to say:
“Several commission members who have worked in criminal courts and supported the input of independent scientists said the department risks retreating into insularity and repeating past mistakes, saying that no matter how well-intentioned, prosecutors lack scientists’ objectivity and training.
U.S. District Judge Jed S. Rakoff of New York, the only federal judge on the commission, said, “It is unrealistic to expect that truly objective, scientifically sound standards for the use of forensic science . . . can be arrived at by entities centered solely within the Department of Justice.”
In suspending reviews of past testimony and the development of standards for future reporting, “the department has literally decided to suspend the search for the truth,” said Peter S. Neufeld, co-founder of the Innocence Project, which has reported that nearly half of 349 DNA exonerations involved misapplications of forensic science. “As a consequence innocent people will languish in prison or, God forbid, could be executed,” he said.
However, the National District Attorneys Association, which represents prosecutors, applauded the end of the commission and called for it to be replaced by an Office of Forensic Science inside the Justice Department. Disagreements between crime lab practitioners and defense community representatives on the commission had reduced it to “a think tank,” yielding few accomplishments and wasted tax dollars, the association said.
The commission was created after critical reports by the National Academy of Sciences about a dearth of standards and funding for crime labs, examiners and researchers, problems it partly traced to law enforcement control over the system.
Although examiners had long claimed to be able to match pattern evidence — such as with firearms or bite marks — to a source with “absolute” or “scientific” certainty, only DNA analysis had been validated through statistical research, scientists reported.
In one case, the FBI lab in 2005 abandoned its four-decade-long practice of tracing bullets to a specific manufacturer’s batch through chemical analyses after its method were scientifically debunked. In 2015, the department and bureau reported that nearly every examiner in an elite hair-analysis unit gave scientifically flawed or overstated testimony in 90 percent of cases for two decades before 2000.
The cases include 32 defendants sentenced to death. Of those, 14 have been executed or died in prison.”
Here is a link to the full article by Hsu: https://www.washingtonpost.com/local/public-safety/sessions-orders-justice-dept-to-end-forensic-science-commission-suspend-review-policy/2017/04/10/2dada0ca-1c96-11e7-9887-1a5314b56a08_story.html?utm_term=.97b814db4eac&wpisrc=nl_buzz&wpmm=1
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I “get” that some of the advocacy groups quoted in these articles could be considered “interested parties” and/or “soft on crime” in the world of hard-core prosecutors. But, Senate Judiciary Committee Chairman Chuck Grassley (R-IA), Sen. Mike Lee (R-UT), Speaker Paul Ryan (R-WI), and the Koch brothers “soft on crime?” Come on, man!
Capitalist theory says that as long as there is a nearly insatiable “market” in the United States for illegal drugs, and a nearly inexhaustible “supply” abroad, there is going to be drug-related crime. Harsher sentences might increase risks and therefore “jack up market prices” for “consumers” of “product,” while creating “new job opportunities” for “middlemen” who will have to take (and be compensated for) more risks and invest in more expensive business practices (such as bribery, or manipulation of the legal system) to get the product “to market.”
But, you can bet that until we deal with the “end causes” in a constructive manner, neither drug trafficking nor trafficking in undocumented individuals is likely to change much in the long run.
Indeed, authorities have been cutting off heads, hands, feet, and other appendages, drawing and quartering, hanging, crucifying, shooting, gassing, injecting, racking, mutilating, imprisoning in dungeons, transporting, banishing, and working to death those who have committed crimes, both serious and not so serious, for centuries. But, strangely, such harsh practices, while certainly diminishing the humanity of those who inflict them, have had little historical effect on crime. The most obvious effects have been more dead and damaged individuals, overcrowded prisons, and angry disaffected families.
125 new U.S. Immigration Judges should be good news for the beleaguered U.S. Immigration Courts. But, even assuming that Congress goes along, at the glacial pace the DOJ and EOIR have been hiring Immigration Judges over the past two Administrations, it could take all four years of Trump’s current term to get them on board and actually deciding cases.
More bad news: Added to the approximately 375 Immigration Judges currently authorized (but, only about 319 actually on the bench), that would bring the total to 500 Immigration Judges. Working at the current 750 completions/year (50% above the “optimum” of 500 completions/year) the currently authorized 375 Immigration Judges could complete fewer than 300,000 cases/year consistent with due process — barely enough to keep up with historic receipts, let alone the “enhanced enforcement” promised by the Trump Administration. They would not have to capacity to address the current “backlog” of approximately 550,000 cases.
If receipts remained “flat,” the 125 “new” Immigration Judges contemplated by AG Sessions could go to work on on the backlog. But, it would take them about 6 years to wipe out the 550,000 case existing backlog.
PWS
04/11/17
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
Dean Kevin Johnson writes:
“The Vera Institute of Justice and partner organizations today announced that detained New Yorkers in all upstate immigration courts will now be eligible to receive legal counsel during deportation proceedings. The 2018 New York State budget included a grant of $4 million to significantly expand the New York Immigrant Family Unity Project (NYIFUP), a groundbreaking public defense program for immigrants facing deportation that was launched in New York City in 2013.
New York has become the first state to ensure that no immigrant will be detained and permanently separated from his or her family solely because of the inability to afford a lawyer. Without counsel, a study shows, only 3% of detained, unrepresented immigrants avoid deportation, but providing public defenders can improve an immigrant’s chance of winning and remaining in the United States by as much as 1000%.
NYIFUP has been operating in two of the four affected upstate immigration courts on a limited basis since 2014 with funding from the New York State Assembly and the IDC. In the just-ended fiscal year, the funding was sufficient to meet less than 20% of the need upstate. In New York City, NYIFUP has been representing all financially eligible, otherwise unrepresented detained immigrants since 2014 with funding from the City Council.
Research has shown that keeping immigrant families together saves money for the state’s taxpayers in increased tax revenues and less need for families left behind to draw on the social safety net. New York State employers also receive significant economic benefits from avoiding the loss of productivity when their employees are detained and deported, and the consequent need to identify and train replacement workers.
The first public defender program in the country for immigrants facing deportation, the NYIFUP Coalition includes Vera, the Immigration Justice Clinic of Cardozo Law School, the Northern Manhattan Coalition for Immigrant Rights, Make the Road New York, and The Center for Popular Democracy. The Erie County Bar Association Volunteer Lawyers Project is a NYIFUP Coalition partner upstate. Brooklyn Defender Services, the Legal Aid Society, and The Bronx Defenders are Coalition partners in New York City.
Several cities and states, including Los Angeles, San Francisco, Chicago, Washington, D.C., and California have recently begun efforts to design similar programs.”
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Good for New York! I hope that other states follow suit.
Representation is the most important contribution that those “outside the system” can make to improving due process in the U.S. Immigration Courts. And, nowhere is it needed more than in often out of the way detention centers. As noted in the article, there is no doubt that representation makes a difference in outcome — a huge difference.
In fact, the statistical difference is so great that one might think that those officials responsible for the U.S. Immigration Court system would long ago have determined that no case could proceed in accordance with due process unless and until the respondent had a lawyer. But, that would be some other place, some other time.
In the meantime, let’s all be thankful for the outstanding example that New York has set!
PWS
04/10/17
http://www.post-journal.com/opinion/2017/04/bridging-the-gap-between-us-and-immigrants/
“As third-year law students and student-attorneys of the Immigration Clinic at The George Washington University Law School, we have the honor of representing immigrants from around the world while guiding them through our very complex immigration system.
Through this experience, we’ve learned that immigrants are just like us. They share our values of family and community; education and opportunity; freedom and security. They’re individuals who are trying to make the best decisions for themselves and for their loved ones.
But in many ways immigrants are not like us. There are some things that you and I will never fully understand. There are some things that we, having grown up under the cloak of privilege afforded us by our status as natural born citizens of the United States, will never have to endure.
So how do we bridge this gap? Why should we take time from our uniquely challenging lives to appreciate and understand our privilege? To what end?
For many student-attorneys, the answer is simple: I am an immigrant. I was an immigrant. My parents are or were immigrants. For the two of us, and countless others, however, what we view as our obligation to welcome and accommodate immigrants has been challenged regularly by our government, our communities, and even our families.
. . . .
We have learned countless lessons from working in the Immigration Clinic. Not the least, we have learned that, although our privilege may protect us from ever having to stand in the shoes of our clients, it has afforded us the extraordinary opportunity to confront the status quo and encourage reconciliation.”
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I encourage everyone to read the complete article at the link. Thanks to Professor Alberto Benitez of the GW Immigration Clinic for bringing this to my attention. And, thanks to Sarah and Maley for your caring, your insights, and all that you are doing for America.
PWS
04-09-17
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
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.
The case is G.G. v. Gloucester County School Board.
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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