"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.
FALLS CHURCH, VA – The Executive Office for Immigration Review (EOIR) today announced the appointment of Katharine E. Clark as a Board Member of EOIR’s Board of Immigration Appeals (BIA).
The BIA is the highest administrative body for interpreting and applying immigration laws, having nationwide jurisdiction to hear appeals of decisions by adjudicators, including Immigration Judges.
Biographical information follows:
Katharine E. Clark, Appellate Immigration Judge
Attorney General Merrick Garland appointed Katharine E. Clark as an Appellate Immigration Judge in August 2023. Judge Clark earned a Bachelor of Arts, magna cum laude, in 2003 from Brown University and a Juris Doctorate in 2006 from Georgetown University Law Center. From 2022 to 2023, and 2007 to 2018, she served as a senior litigation counsel and trial attorney at the Office of Immigration Litigation, Civil Division, Department of Justice. From 2019 to 2021, she was a managing attorney at Ayuda in Silver Spring, Maryland, where she also handled cases on a pro bono basis. From 2018 to 2019, she was counsel for the U.S. Senate Judiciary Committee. From 2006 to 2007, she served as a Judicial Law Clerk at the Boston Immigration Court, entering on duty through the Attorney General’s Honors Program. Judge Clark is a member of the Maryland State Bar and the Pennsylvania State Bar.
— EOIR —
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Proud to say Judge Clark is a graduate of not only Georgetown Law (where I am an Adjunct), but one of many distinguished alums of the Legacy Arlington Immigraton Court Internship Program, established by my good friend and colleague Retired U.S. Immigraton Judge Mario Christopher Grant. I later inherited the “Mentor Judge” position upon Judge Grant’s retirement. Judge Clark is the first, hopefully of many, of those we mentored to be appointed to the BIA.
I am also a member of the Advisory Board at AYUDA, where Judge Clark worked as a supervisory attorney from 2019-21.
Judge Clark’s experiences give her an exceptionally broad, varied perspective. She has seen the system from the inside, at EOIR, as an NGO advocate assisting those struggling to deal with EOIR’s dysfunction and institutional unfairness, as an OIL attorney defending EOIR’s work, and as a legislative aide attempting to address the system’s many shortcomings.
She is well positioned to help the BIA and EOIR move beyond the flawed decision-making, unrealistic guidance, and backlog-building “Aimless Docket Reshuffling” that has plagued the Immigration Court System over the past two decades. Hopefully she will be a force in returning EOIR to it’s proper (though long-abandoned) vision of: Through teamwork and innovation, becoming the world’s best administrative tribunals, guaranteeing fairness and due process for all!
It’s far away from that now! But, there are some judges at EOIR like Judge Clark qualified and capable of leading a “due process renaissance” at the beleaguered tribunals. Whether and to what extent they will be able to do so remains to be seen.
Congratulations again and good luck to Judge Clark!
Immigration law rocks with “Professor Stevie & His Ramblin’ Band of Experts!” Public Realm
Immigration Reform: Lessons Learned and a Path Forward
Congress has been unable to enact comprehensive immigration reform for over 30 years.
Employers face an unprecedented shortage of workers.
The Dreamers, long-contributing members of our society, face uncertainty due to litigation questioning the legality of the DACA program.
And border security concerns everyone.
Polls suggest Americans want immigration reform. But the conventional wisdom is that “comprehensive immigration reform” is impossible in a divided Congress.
This conference will explore targeted legislation and other policy changes that could be enacted in 2023, focusing on work visa changes to help alleviate our labor shortages, border security and asylum reforms, and a permanent path forward for Dreamers, farmworkers.
Sponsored by the Cornell Law School Immigration Law and Policy Research Program and cosponsored by the Cornell Migrations Initiative.
While we encourage in-person attendance, the conference will be webcast live from the National Press Club. Mark your calendars now for this important event!
Panelists from the following organizations:
American Action Forum, American Business Immigration Coalition, AmericanHort, Bipartisan Policy Center, Compete America, Cornell Law School, Migration Policy Institute, National Association of Evangelicals, National Immigration Forum, Niskanen Center, Service Employees International Union,
Texas Association of Business, TheDream.US, UnidosUS,
United Farm Workers of America, U.S. Chamber of Commerce
A special thanks to the Charles Koch Foundation for sponsoring this event.
This is a promising idea. Hope it works! I have to wonder, however, why a coordinated effort like this wasn’t implemented for asylum seekers arriving at the Southern Border?
You can register (free) for the Cornell Conference, where this and other timely topics will be discussed by the experts!
Subject: Victory for Immigrants and Their Advocates!
All,
I am proud to share that NYLAG and co-counsel Public Citizen reached a historic settlement in NYLAG v. Board of Immigration Appeals (18 Civ. 9495 (S.D.N.Y.)). Under the settlement entered last night, the Board of Immigration Appeals (BIA) will for the first time make the vast majority of its decisions available to the public by publishing them online, helping to level the playing field for immigrants.
NYLAG brought this case to challenge the BIA’s longstanding failure to make its judicial decisions publicly available, which meant that neither immigrants nor their attorneys could access these crucial documents to help them defend their cases and seek relief. This gave an unfair advantage to the government’s lawyers, who could access these same decisions to advocate for removal of NYLAG’s clients and immigrants across the country, in proceedings already stacked against them. To challenge this practice, NYLAG made a request under the Freedom of Information Act (FOIA) that BIA post all of its final orders in immigration cases in its electronic reading room– which FOIA has required since 1996 for all federal agencies.
Last February, NYLAG and co-counsel Public Citizen won a critical victory in the case, when the U.S. Court of Appeals for the Second Circuit ruled that people can sue to enforce the FOIA requirement that federal agencies post certain documents online so that they are accessible to the public.
Last night, the United States District Court for the Southern District of New York approved the settlement agreement between NYLAG and the BIA, under which the BIA has agreed to place nearly all its opinions into an online reading room. This will ensure that immigrants and immigration advocates across the country (including NYLAG’s own Immigrant Protection Unit’s staff and clients) will have access to these opinions within six months of when they are issued. The Board also must post prior decisions dating back to 2016.
This victory is a testament to NYLAG’s ability to create large-scale change. Kudos to the NYLAG attorneys involved in this case – Danielle Tarantolo, Jessica Ranucci, and Jane Stevens (before her retirement) of SLU; and Jodi Ziesemer and Melissa Chua of IPU –and our dedicated co-counsel at Public Citizen. This victory could not have been achieved without their partnership, diligence, and hard work.
Beth
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Congrats to all concerned! As noted in Beth Goldman’s last paragraph, while Garland has been reluctant to make progressive changes and to bring much needed management and substantive reforms to EOIR, advocacy groups have been able to force some systemic improvements through litigation.
It seems like a wise AG would “clean out the deadwood” @ EOIR and bring in dynamic experts who can solve problems and make the necessary changes to restore due process to his ridiculously broken system. But, that apparently would be an AG “other than Garland.”
Born in 1921, Motley was the first Black woman to argue at the Supreme Court and the first to serve as a federal judge. Democratic presidents twice considered — and twice rejected — her for a seat on a federal appeals court.
Motley, who went by Connie, faced countless indignities. She graduated from New York University and Columbia Law School, and a Wall Street firm offered her a job interview based on her stellar academic record. But the firm wouldn’t even meet with her when she showed up for the appointment because she was Black. Instead, she took a job at the NAACP Legal Defense Fund.
She was the only female lawyer at the Fund for 15 years. During her employment interview in 1945 with then Legal Defense Fund boss Thurgood Marshall, the future Supreme Court justice asked her to climb a ladder next to a bookshelf. “He wanted to inspect her legs and feminine form,” writes Tomiko Brown-Nagin in her compelling and readable new biography of Motley, “Civil Rights Queen.” When Marshall stepped down to become a judge in 1961, he passed over Motley and picked a less experienced White man as his successor.
James Hohmann Columnist WashPost PHOTO: WashPost website
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Motley earned less than men who did the same work. Motley nonetheless won nine of the 10 cases she argued at the Supreme Court. As a new mother, struggling with postpartum depression, she drafted briefs for Brown v. Board of Education. Pursuing the implementation of the landmark decision turned out to be a decades-long slog. She successfully integrated the flagship universities in Georgia and Mississippi, where she was James Meredith’s attorney.
In 1965, Lyndon B. Johnson had intended to nominate Motley to take Marshall’s seat on the U.S. Court of Appeals for the 2nd Circuit when he resigned to become solicitor general — a stepping-stone to the Supreme Court in 1967. But then-Sen. Robert F. Kennedy (D-N.Y.), remembered by history as a civil rights champion, pressed Johnson to pick a White man over Motley for the appellate court. Kennedy called Attorney General Nicholas Katzenbach in July 1965 to complain that naming Motley would be too risky from a “political and public relations viewpoint.” Katzenbach summarized the call in a memo to Johnson. “I think there is merit in Sen. Kennedy’s assessment,” the attorney general told the president.
(Johnson nominated Motley to the District Court for the Southern District of New York a year later. The American Bar Association declined to give Motley a “highly qualified” rating on the dubious grounds that she lacked trial experience in New York, even though she’d litigated hundreds of cases in federal courts. Senate Judiciary Committee Chairman James O. Eastland (D-Miss.) accused her of being a communist sympathizer and held up Motley’s confirmation for seven months.)
A dozen years later, during Jimmy Carter’s presidency, Attorney General Griffin Bell had veto power over judicial nominations and opposed Motley’s elevation to the 2nd Circuit because they’d tangled when she was a lawyer for the Legal Defense Fund. Carter eventually nominated Amalya Kearse, a Black woman who was a partner at a major law firm and didn’t have critics inside his administration.
Along the way, Motley mentored Sonia Sotomayor after the future justice joined Motley’s court in 1992. Sotomayor, who in 1998 secured the 2nd Circuit appeals court seat that eluded Motley, famously wrote that “wise Latina” judges “would more often than not reach a better conclusion” than White male judges who lacked their lived experiences. Motley, who rejected being called a “feminist,” disagreed that female judges brought special insight to the bench. Instead, she argued for a more representative judiciary on the grounds that inclusion would strengthen democracy by increasing confidence in the rule of law among racial minorities.
Motley died in 2005 at 84, still believing in the ability of the third branch to help deliver on that promise. Biden’s pledge to name a Black woman to the Supreme Court is a validation of Motley’s enduring faith in a system that repeatedly passed her over.
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The Thurgood Marshall story shows that it wasn’t only White men who undervalued Black women. Black men displayed some of the same disgusting and condescending attitudes! Motley just kept on achieving and contributing, making the most of her opportunities, rather than stewing about what had unfairly (and probably illegally) been denied to her.
Obviously, the careers of guys like GOP Senators Wicker, Cruz, and Kennedy show that White guys still benefit from a system that still doesn’t hold them to the same standards imposed on women, particularly talented women of color.See, e.g.,https://apple.news/A-e_PL2khRhiEbrj_L7woCA
But, unlike these “snowflake right-wing whiners,” women of color are used to “plowing forward” and making their own way, despite systemic biases and obstacles placed in their path by men of limited ability who spread lies, show disgusting bias, and contribute little to the common good!
Folks, this is the same Ted Cruz who demonstrated his true character and lack of concern for his constituents by fleeing with his family to a cushy resort in Cancun while Texas was in crisis! He’s also someone who would deny legal refuge to those whose lives are actually in danger because they don’t “fit in” with his White Nationalist view of desirable demographics. (Compare “Cancun Ted’s” version of “refuge” with the camps in which real refugees and their families are rotting in Mexico thanks to righty-wing judges and GOP AGs.)
Perhaps the most interesting disconnect among the privileged GOP White guys who are opposing a Black woman nominee who hasn’t even been named yetis the juxtaposition with the performance of these dudes during the Kavanaugh confirmation hearings — an unending homage to the “birth privilege” of angry, entitled right-wing white guys. Here’s an apt quote from Chauncey Devega in Salon:
When Trump says “young men,” no adjective or modifier is needed. It is clear to everyone, given his inclinations, history, words and deeds, that “young men” of course means “white men”.
This reflects a larger sentiment in America at present. For too many white men — poor, working-class and middle-class — there is widespread anger at somehow being displaced by nonwhites and women who are “cutting ahead in line” because of “affirmative action” and other nonexistent “entitlements.”
These angry white men feel obsolete and marginalized in a changing America, frustrated by globalization and excluded by a more cosmopolitan country. But their anger is misdirected toward the groups they perceive to be receiving “special treatment.” Their collective anger would be better directed at men who look like them but who have created social inequality, injustice and immiseration in America and around the world.
President Biden should stick to his guns and nominate a talented and deserving Black woman. It’slong, long overdue! And, he should pay no attention whatsoever to the outrageous, totally disingenuous laminations of privileged guys like Cruz, Wicker, and Kennedy who have already “achieved” far above the level of their demonstrated merit, ability, or positive contributions to the common good.
We need Federal Judges and Justices who are wise, fair, talented, experienced contributors to society; we don’t need the advice or “stamp of approval” of insurrectionists and dividers who rely on racially biased myths to cover for their own all too obvious human inadequacies!
Hon. Sarah Burr Retired U.S. Immigration Judge Knightess of The Round Table Photo Source: Immigrant Justice Corps websiteHon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judgeship
Sir Jeffrey Chase reports:
Attached is the decision of U.S. District Judge Alison J. Nathan of the Southern District of New York ordering ICE to present detained noncitizens before an immigration judge within 10 days of their arrest. It was not unusual as recently as early last year for noncitizens detained by ICE who were eligible for release to wait weeks or months to see an IJ for the first time.
Sarah Burr filed a declaration in support of the litigation that counsel acknowledged was critical to the outcome. Congrats, Sarah, and thanks for your extraordinary efforts on behalf of due process!
Whether as individuals or a group, we continue to make a difference in important decisions.
Best, Jeff
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Thanks, and congrats, Sarah!
You are indeed one of the Round Table’s leading “warrior-princesses!”
Knightess of the Round Table
Your fighting spirit and lifelong dedication to the battle to achieve “due process for all” are a constant inspiration to all of us in the Round Table and the NDPA!
TWO NEW ITEMS FROM IMMIGRATIONPROF BLOG SHOW A MALICIOUSLY INCOMPETENT AND CORRUPT TRUMP REGIME IMMIGRATION BUREAUCRACY THAT BELIEVES AND FUNCTIONS LIKE IT IS ABOVE THE LAW, ACCOUNTABILITY, & HUMAN MORALITY!
McCord Pagan for Law360 reports that U.S. Customs and Border Protection (CBP) violated the law by taking funds designated by Congress for consumables and medical care for migrants and instead used some of the money for its canine program, dirt bikes and upgrades to its computer system, according to the U.S. Government Accountability Office (GAO).
While CBP spent some of the designated funds on baby products, food, defibrillators, and masks, CBP violated the law by spending certain funds meant for such migrant care on canines, boats, dirt bikes, ATVs, a vaccine program for its employees, and upgrades to its computer network, sewer system, as well as janitorial services, according to the GAO report.
The 2019 law providing supplemental funds to CBP to help address a surge of migrants crossing the U.S.-Mexico border designated about $112 million to CBP for “consumables and medical care.”
“We conclude that CBP violated the purpose statute when it obligated amounts expressly appropriated for consumables and medical care and establishing and operating migrant care and processing facilities for other purposes,” according to the GAO opinion. The Congressional watchdog is conducting an audit of CBP and the U.S. Department of Homeland Security on the care of the adults and children in its custody, it said.
In response to GAO’s findings, a CBP spokesperson sent Law360 a statement calling the violations “technical in nature” and said it will take prompt remedial action.
CNN reports the latest skirmish between the state courts and federal immigration enforcement.
U.S. District Judge Jed S. Rakoffissued an order yesterday blocking ICE from making arrests in New York courts, finding that the practice is illegal. The introductory paragraph of his ruling reads as follows:
“Recent events confirm the need for freely and fully functioning state courts, not least in the State of New York. But it is one thing for the state courts to try to deal with the impediments brought on by a pandemic, and quite another for them to have to grapple with disruptions and intimidations artificially imposed by an agency of the federal government in violation of long-standing privileges and fundamental principles of federalism and of separation of powers.”
State and local officials argue that when ICE officers apprehends immigrants at courthouses — where they are making appearances as defendants, witnesses or victims — it endangers public safety by making it harder to prosecute crimes.
Baby jails, stealing from kids, interfering with the administration of justice. Just another day in the Disunited Kakistocracy of Trump.
These situations result in part from a feckless Congress led by Mitch and a failed Supremes led by Roberts who won’t stand up for our Constitutional rights and restrain an obviously corrupt and lawless Executive with a racist agenda.
It’s no surprise that much of Trump’s wrongdoing is exposed by the Government’s own ”watchdogs.” Unlike GAO, which works for Congress, those in the Executive Branch often are then unethically fired by Trump as Congress and the Supremes fail to stand up for honesty in Government. Worse yet, they fail to protect public employees who courageously expose corruption.
And, the high ranking legislators and judges who have watched and enabled Trump’s scurrilous attacks on our Constitution and human values ultimately bear much of the responsibility! As my friend Ira Kurzban would say, “this is not normal.” “Normalizing” and “enabling” illegal, unethical, and racist-driven behavior is obscene. If “watchdogs” and U.S. District Court Judges can speak out against lawless actions and corruption, how is it that Mitch, Roberts, and the rest of the GOP have “swallowed the whistle?”
A federal judge has ordered the release of 10 people held by U.S. Immigration and Customs Enforcement in New Jersey county jails where COVID-19 has been confirmed, citing chronic medical conditions of the detainees that make them particularly vulnerable to the disease.
Those ordered freed range in age from 31 to 56 years of age and have medical conditions including diabetes, heart disease and obesity, and some with past histories that include pneumonia and smoking. Five were being held at Bergen County Jail, three at Hudson County Jail and the other two at Essex County Jail.
U.S. District Judge Analisa Torres in the Southern District of New York granted a temporary restraining order against the inmates’ continued detention while awaiting removal proceedings, writing: “Each of the jails where a Petitioner is being housed has reported confirmed cases of COVID-19. This includes two detainees and one correctional officer in the Hudson County Jail, one detainee at the Bergen County Jail, and a ‘superior officer’ at the Essex County Jail.”
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Congrats to Brooklyn Defender Services!The complete article including a copy of the complete decision in available at the link.
This past Friday, the Department of Homeland Security’s random policy change deeming youths between the ages of 18 and 20 years old ineligible for special immigration protection ran into a brick wall in the form of the U.S. District Court for the Southern District of New York. In his decision in R.F.M. v. Nielsen, Judge John G. Koeltl held that DHS’s sudden policy shift denying Special Immigrant Juvenile Status (or SIJS, for short) to qualified youths over the age of 18, a group that it had previously approved under the same statute for nearly three decades, (1) was contrary to the plain language of the statute it claimed to interpret; (2) lacked a reasonable explanation, (3) was premised on an erroneous interpretation of state law, and (4) was not enacted with adequate notice, as required by the Administrative Procedures Act. For these reasons and more, Judge Koeltl concluded that the policy shift was arbitrary and capricious, in excess of statutory jurisdiction, and without observance of the procedure required by law. The judge further granted the plaintiffs’ motions for class certification and for summary judgment.
What exactly did DHS do to invoke such a strong judicial rebuke? SIJS was created by Congress in 1990 to provide a path to legal residence for immigrant youths who have suffered abuse, neglect, or abandonment. The statute defines juveniles eligible for such benefit as those under the age of 21, and applicants under that cut-off age were generally afforded such status. However, in early 2018, the present administration suddenly and without warning began denying applications involving applicants over the age of 18. Sounding very much like Herr Zeller in The Sound of Music claiming that “nothing in Austria has changed,” government counsel attempted to argue that there had been no change in policy, a claim that Judge Koeltl outright rejected in light of clear evidence to the contrary. As the L.A. TImes reported in January, the impact of the policy shift was magnified by another DHS policy directive to commence deportation proceedings against those whose applications for benefits are denied, an action that had previously rarely been taken against juvenile applicants.
What immediately struck me about the new DHS policy at the time of the shift was its position that the New York Family Court lacked jurisdiction over youths who had reached the age of 18 as a basis for denying the petitions. How could a federal agency feel it had the right to rule on a state court’s jurisdiction over a matter of state law? Of course, Judge Koeltl noted in his decision that in spite of a USCIS Policy Manual requiring the agency to rely on the state court’s expertise on such matters, and prohibiting the agency from reweighing the evidence itself or substituting its own interpretation of state law for that of the state court, DHS nevertheless did exactly that, substituting its own interpretation of New York law for that of the New York Family Court in arguing for that court’s lack of jurisdiction. Of course, DHS’s improper interpretation wasn’t even a correct one; with the judge finding that DHS’s conclusion “is based on a misunderstanding of New York State law.”
Just in case there was any doubt as to its bad faith, the Government even opposed the motion that the young Plaintiffs be allowed to proceed anonymously in the action, identified only by their initials. What possible reason other than harassment could DHS have in opposing such motion made by young plaintiffs who had suffered abuse or abandonment?
Not coincidentally, there has been a surge in SIJS-eligible youth arriving at the border in recent years, with most coming from the besieged Northern Triangle countries of El Salvador, Guatemala, and Honduras. Youths in those countries run a shockingly high risk of being targeted for domestic violence, forced gang recruitment, and other physical and psychological harm. These are children that we are talking about. Nevertheless, the Trump Administration has consistently targeted citizens of these countries, inaccurately labeling them as criminals and deriding the legitimacy of their motives for seeking refuge in this country. And, like pieces in a puzzle, the shift in SIJS policy is just one more way that the Trump Administration has created obstacles for a group it should be seeking to protect.
Hats off to the Legal Aid Society and the law firm of Latham and Watkins for their outstanding representation of the plaintiffs.
Copyright 2019 Jeffrey S. Chase. All rights reserved.
Here’s a link to the “full text” of the case Jeffrey discusses, courtesy of our good friend Dan Kowalski over at ltl G. Koeltl
What about the DOJ attorneys who are defending these patently illegal actions in court, often without providing any rationale that would pass the “straight face test?” Why is it OK to present “pretextual” reasons for policies that publicly available information shows are actually based on bias, undue outside influence, ignoring facts, and sometime outright racism, and xenophobia? Why are DOJ attorneys and their supervisors, who are also members of the bar, allowed to operate in an “ethics free zone?”
Don’t expect any help from newly minted Trump sycophant AG Bill Barr. Despite his “Big Law Corporate Patina” and his bogus claim that he seeks to “restore confidence” in the DOJ, his first project is reputed to be a scurrilous Trump-type attack on Federal Judges issuing nationwide injunctions who are among those (the private, often pro bono, bar and NGOs being others) having the courage to stand up for the rule of law and our Constitution against the outrageous onslaughts of Trump, his cronies, and his team of disingenuous lawyers who seem to believe that they have been immunized from the normal rules of ethical and professional conduct.
No, Barr isn’t just a “conservative lawyer.” I actually worked for a number of very “conservative” lawyers both in and out of Government. While I didn’t always agree with their policies and their legal arguments (that wasn’t a job requirement), I did find them willing to listen and consider “other views” and occasionally be persuaded. Moreover, they all had a respect for both our legal system and the Constitution, as well as Federal Judges and those on “the other side” of issues that I find completely, and disturbingly lacking in the Trump Administration and its “ethnics free” legal team.
Not only are the efforts of the Trump Administration to “undo” provisions of our law that “work,” promote justice, and save lives illegal and immoral, they also are tying up rousources with frivolous and unnecessary litigation. What if all of that time and effort were put into solving problems and making our country better, rather than destroying it?
White nationalism lost in federal court yesterday.
Judge Jesse Furman blocked the Trump administration’s attempt to add a question to the 2020 census asking about citizenship status. Furman “found that Commerce Secretary Wilbur Ross violated federal law by misleading the public — and his own department — about the reasons for adding the question,” Dara Lind of Vox writes.
Ross claimed, laughably, that the citizenship question would help the Trump administration enforce voting rights. In truth, it was designed to intimidate Latinos — both legal and illegal — into not responding to the census. The resulting undercount would then reduce the political representation of immigrant-heavy regions and cause them to receive less federal funding.
The citizenship question, Paul Waldman writes in The Washington Post, is part of “a broader effort on the part of Republicans to put a thumb on the electoral scale in every way they possibly can, whether it’s extreme gerrymandering, voter suppression efforts targeted at minorities, or the use of the census to make Republican victories just that much more likely.”
Yesterday’s ruling isn’t the final word. The Trump administration will likely appeal, and the appeal will likely reach the Supreme Court, where Republican-appointed justices hold a five-to-four majority.
But there is some reason to hope the justices will avoid an obviously partisan decision. Neil Gorsuch and Brett Kavanaugh, the two newest conservative justices, have previously taken a dim view of federal officials who exceed limits on their power, The Daily Beast’s Jay Michaelson explains. “While it’s always possible that the Court’s conservatives will vote ideology over principle … their particular judicial philosophies do not bode well for the Trump administration’s brazen defiance of administrative law,” Michaelson writes.
A side note: Given the combination of his census exploits, his lies about those exploits and his shady stock trades, Ross may now deserve consideration if my colleague Gail Collins revisits her analysis of the worst Trump Cabinet member. His case is helped by the fact that some of his even more corrupt colleagues have recently departed the administration.
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Seems to me that the Government attorneys representing liars like Ross and his dishonest positions in court are violating ethical rules. Why would a case like this be on the way to the Supremes, rather than Ross being on his way to jail for conspiring to violate civl rights? And, as Leonhardt points out, some of his departed Cabinet colleagues were even more corrupt and dishonest.
Kouadio v. Decker, USDC SDNY, Judge Alvin K. Hellerstein, 12-27-18
KEY QUOTE:
“This nation prides itself on its humanity and openness with which it treats those who seek refuge at its gates. By contrast, the autocracies of the world have been marked by harsh regimes of exclusion and detention. Our notions of due process nourish the former spirit and brace us against the latter. The statutory framework governing those who seek refuge, and its provisions for detention, cannot be extended to deny all right to bail.”
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Check out the full opinion. One interesting aspect concerns the administrative history. Over his 34 months of detention, the respondent’s asylum hearing was continued at least nine times. At least six of those continuances were caused by DHS or EOIR for a variety of mostly avoidable reasons including failure to have the correct interpreter, failure to produce the respondent, and insufficient time to complete the hearing. By contrast, the respondent’s conginuances were all well justified and directly related to Due Process — basically getting an attorney and sufficient time to prepare his case.
Remember, this was supposedly a “priority detained” case. Yet this grotesquely mismanaged parody of a court system bumbled along like an episode of the Keystone Cops.
This is an example of the “Aimless Docket Reshuffling” that has become chronic in Immigration Court. Yet, instead of placing primary blame where it squarely belongs on DHS and DOJ, and making good faith attempts to solve the problems they created, corrupt officials like Sessions and Nielsen tried to shift the blame to the victims: the respondents and their attorneys and often the Immigration Judges themselves.
We need an independent Article I Immigration Court under honest, competent, impartial, apolitical, professional judicial administration. And, we need an Immigration Court that will treat both parties fairly and equally, rather than treating DHS as a “partner” and the “boss” and the respondents and their attorneys as “enemies.”
The ruling from U.S. District Judge Jesse Furman came in response to a request that he halt further proceedings in the trial until the U.S. Supreme Court ruled on what evidence he could consider. The Supreme Court had rejected a very similar request to temporarily stop the litigation just weeks ago, the judge noted.
The judge, who sits in the Southern District of New York, did not hold back his frustration in his 7-page opinion, noting that the Department of Justice had submitted 12 separate requests to delay the proceedings since the Labor Day weekend.
“Unless burdening Plaintiffs and the federal courts with make-work is a feature of Defendants’ litigation strategy, as opposed to a bug, it is hard to see the point,” Furman wrote.
All along, the judge has expressed a desire to move the case along quickly, recognizing that any decision he makes is likely to be appealed to higher courts and that the issue needs to be resolved quickly so that the Census Bureau has time to print the census forms.
“Enough is enough,” Furman wrote in his Tuesday ruling.
The lawsuit ― brought by 18 states, the District of Columbia, several cities and a handful of immigrant groups ― argues that the decision to add the citizenship question was motivated by discriminatory intent. They also say the decision should be set aside on the grounds that it was “arbitrary and capricious.”
In this latest effort to stall the proceedings, the Justice Department said that doing so would help conserve judicial resources, an argument the judge dismissed as “galling.”
“If Defendants were truly interested in conserving judicial resources, they could have avoided burdening this Court, the Second Circuit, and the Supreme Court with twelve stay applications over the last eleven weeks that, with one narrow exception, have been repeatedly rejected as meritless,” Furman wrote. “Instead, Defendants would have focused their attention on the ultimate issues in this case, where the attention of the parties and the Court now belongs.”
Kelly Laco, a Justice Department spokeswoman, declined to comment on Furman’s ruling.
The Justice Department appealed this latest motion to the U.S. Court of Appeals for the 2nd Circuit even before Furman had ruled on it ― a highly unusual move that clearly annoyed the judge, who suggested the department’s conduct in the case was sanctionable.
“Defendants’ motion makes so little sense, even on its own terms, that it is hard to understand as anything but an attempt to avoid a timely decision on the merits altogether,” the judge wrote. “That conclusion is reinforced by the fact that Defendants, once again, appealed to the Second Circuit even before this Court had heard from Plaintiffs, let alone issued this ruling on the motion.”
Furman also noted that the 2nd Circuit had already denied that appeal as “premature.”
Amy Spitalnick, a spokeswoman for New York Attorney General Barbara Underwood, who is leading the case for the plaintiffs, praised Furman’s decision.
“We agree with Judge Furman: enough is enough,” Spitalnick said in a statement.
Seems like it’s past time for the courts and bar associations to impose sanctions on the DOJ attorneys for their widespread unethical behavior and bad faith in conducting litigation in behalf of this scofflaw Administration!
The rescission of DACA—based as it was solely on a misconceived view of the law—is reviewable, and plaintiffs are likely to succeed on their claim that it must be set aside under the APA. We therefore affirm the district court’s entry of a preliminary injunction.31 The district court also properly dismissed plaintiffs’ APA notice-and-comment claim, and their claim that the DACA rescission violates their substantive due process rights. The district court also properly denied the government’s motion to dismiss plaintiffs’ APA arbitrary-and-capricious claim, their claim that the new information-sharing policy violates their due process rights, and their claim that the DACA rescission violates their right to equal protection.
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The Executive wields awesome power in the enforcement of our nation’s immigration laws. Our decision today does not curb that power, but rather enables its exercise in a manner that is free from legal misconceptions and is democratically accountable to the public. Whether Dulce Garcia and the hundreds of thousands of other young dreamers like her may continue to live productively in the only country they have ever known is, ultimately, a choice for the political branches of our constitutional government. With the power to make that choice, however, must come accountability for the consequences.
Here’s a link to the full decision by the 9th Circuit:
After Mr. Ross’s explanation for the citizenship question’s origin shifted, Judge Furman said it appeared that the Commerce Department had acted in “bad faith” in deciding to add the question.
Mr. Ross said in a statement on March 26 that the Justice Department, which oversees enforcement of the Voting Rights Act, had asked that the question be placed on census forms. But late last month he reversed course, stating in a memo that he actually had been discussing the citizenship question “with other government officials” since shortly after taking office in February 2017 — and that the Justice Department had made its request only after he or his aides asked it to.
Judge Furman called Mr. Ross’s March explanation of his decision both “potentially untrue” and improbable because, he said, the Justice Department “has shown little interest in enforcing the Voting Rights Act.”
In an emailed response to questions, a Commerce Department spokeswoman, Rebecca Glover, said there was no inconsistency between the two statements. “Characterizations of the secretary’s prior public statements as somehow misleading are false,” she wrote. Whatever the run-up to the Justice Department’s request, she said, it remained the trigger that led to Mr. Ross’s “thorough and transparent assessment” of the need for a citizenship question.
Terri Ann Lowenthal, a former congressional expert on the census who is a private consultant to groups seeking an accurate 2020 count, called Mr. Ross’s revised timeline “disappointing and deeply troubling.”
“This seems to confirm that the Justice Department request for the citizenship question was a pretense to achieve a political goal through the census,” she said. “The pieces of the puzzle are starting to fit together, going back to when President Trump took office.”
In their lawsuit, which is led by the New York attorney general, Barbara D. Underwood, the plaintiffs imply that enforcing the Voting Rights Act was a pretext for another goal: ensuring that the nation’s 11 million-plus undocumented immigrants are not counted for the purpose of drawing congressional and other political districts, which are required to have equal populations.
The practical impact would be to reduce the number of congressional districts, and therefore Electoral College votes, in states with large numbers of noncitizens — often, though not always, Democratic strongholds.
Mr. Ross has not named the administration officials with whom he discussed the citizenship question after taking office. But other lawsuit documents released last month show that Mr. Ross received an email in July 2017 from Kris W. Kobach, the Kansas secretary of state who has taken a strong position against illegal immigration. Mr. Kobach urged Mr. Ross to add the citizenship question to the 2020 census because undocumented immigrants “do not actually ‘reside’ in the United States” but are counted for reapportionment purposes.
Mr. Kobach noted in the email that he had recently reached out to Mr. Ross “on the direction of Steve Bannon,” who was then the White House chief strategist. Documenting the extent of outsiders’ role in the citizenship decision will be a priority when the plaintiffs’ search for new evidence begins, experts said.
“That suggests very strongly that the directive here was ultimately a directive that came from the White House,” said Thomas Wolf, counsel at the democracy program of the Brennan Center for Justice at N.Y.U. School of Law.
The census tally, which includes everyone living in the United States regardless of immigration status, is used to reapportion political boundaries every 10 years to account for population changes. But a growing movement on the far right seeks to exclude undocumented immigrants from being counted during reapportionment; Alabama’s Republican secretary of state filed a lawsuit in May seeking to do exactly that.
If only citizens were counted for reapportionment, “California would give up several congressional seats to states that actually honor our Constitution and federal law,” one leader of the anti-immigrant movement, Representative Steve King, Republican of Iowa, said in February.
That is, for now, a distant prospect. But some experts say they believe asking about citizenship could accomplish the same goal by discouraging undocumented immigrants, even legal ones, from being counted.
“Their actions can produce a census that leaves out many of the people they don’t want counted for political representation,” Ms. Lowenthal said. “And there will be consequences, perhaps, well beyond what immigration hard-liners believe will only be reduced numbers in selected states.”
Tyler Blint-Welsh contributed reporting from New York.
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Read the complete article at the link.
These guys are totally disgusting. Sessions’s “we’ve gotta enforce the law” blather has always been totally bogo. Sessions is interested in enforcing only those laws that happen to support his racist, White Nationalist agenda. Even then, he lies, twists the meaning, and intentionally misuses statistics to support his perverted Jim Crow outlook.
My question is why the DOJ attorneys presenting these obviously untrue and dishonest positions in Federal Court haven’t been referred to their state bars for disciplinary proceedings and possible revocation of their law licenses? And, why isn’t our biased “chief lawyer” Jeff Sessions the subject of ethics and disciplinary procedures given his clear record of bias against people of color and his pushing of unlawful political/racial agendas based on lies before the Federal Courts?
Private attorneys who conducted themselves the way Sessions and his DOJ crew do before Federal Courts would be in deep trouble by now? Why are they getting away with it?
The events occurring now on our border with Mexico, where children are being removed from the arms of their mothers and fathers and sent to foster families or “shelters”, make me weep and gnash my teeth with sadness and rage. I know what they are going through. When we were children, my two siblings and I were also taken from our parents. And the problems we’ve experienced since then portend the terrible things that many of these children are bound to suffer.
My family was Jewish, living in 1942 in the Netherlands when the country was occupied by the Nazis. We children were sent into hiding, with foster families who risked arrest and death by taking us in. They protected us, they loved us, and we were extremely lucky to have survived the war and been well cared for.
Yet the lasting damage inflicted by that separation reverberates to this day, decades hence.
Have you heard the screams and seen the panic of a three-year-old when it has lost sight of its mother in a supermarket? That scream subsides when mother reappears around the end of the aisle.
This is my brother writing in recent years. He tries to deal with his lasting pain through memoir. It’s been 76 years, yet he revisits the separation obsessively. He still writes about it in the present tense:
In the first home I scream for six weeks. Then I am moved to another family, and I stop screaming. I give up. Nothing around me is known to me. All those around me are strangers. I have no past. I have no future. I have no identity. I am nowhere. I am frozen in fear. It is the only emotion I possess now. As a three-year-old child, I believe that I must have made some terrible mistake to have caused my known world to disappear. I spend the rest of my life trying desperately not to make another mistake.
My brother’s second foster family cared deeply about him and has kept in touch with him all these years. Even so, he is almost 80 years old now and is still trying to understand what made him the anxious and dysfunctional person he turned into as a child and has remained for the rest of his life: a man with charm and intelligence, yet who could never keep a job because of his inability to complete tasks. After all, if he persisted he might make a mistake again, and that would bring his world to another end.
My younger sister was separated from our parents at five. She had no understanding of what was going on and why she suddenly had to live with a strange set of adults. She suffered thereafter from lifelong, profound depression.
I was older: seven. I was more able than my siblings to understand what was happening and why. I spent most of the war with Dick and Ella Rijnders. Dick was mayor of a small, rural village, and he and Ella lived in a beautiful house next to a wide waterway. Ella had a warm smile and Dick referred to me as his “oldest daughter”. I was able to go to school normally, make friends, and became part of village life. I was extraordinarily lucky, but I was not with my own parents, sister, and brother. And, eventually, I also had to leave the Rijnders, my loving second “family”. I was returning to my own family, but this meant another separation.
In later life, I was never able to really settle down. I lived in different countries and was successful in work, but never able to form lasting relationships with partners. I never married. I almost forgot to mention my own anxiety and depression, and my many years in psychotherapy.
My grief and anger about today’s southern border come not just from my personal life. As a retired psychotherapist who has worked extensively with victims of childhood trauma, I know all too well what awaits many of the thousands of children, taken by our government at the border, who are now in “processing centers” and foster homes – no matter how decent and caring those places might be. We can expect thousands of lives to be damaged, for many years or for ever, by “zero tolerance”. We can expect old men and women, decades from now, still suffering, still remembering, still writing in the present tense.
What is happening in our own backyard today is as evil and criminal as what happened to me and my siblings as children in Nazi Europe. It needs to be stopped immediately.
This about race. It is no accident that virtually all of the separated parents and kids are Hispanic and the few others affected are almost all “of color.” We wouldn’t be having all this ruckus if the arrivals were White. Trump, Sessions, and Miller are White Nationalists in the “Bannon Mode.” Kelly and Nielsen have decided to come out of the closet and reveal their racist sympathies.
The harm is permanent. All experts say that the harm intentionally inflicted in these kids will be permanently disabling. More blogging on that later.
We’re sending these families to concentration camps masquerading as countries. Make no mistake about it, most of these folks are refugees fleeing persecution and torture at the hands of gangs and cartels that basically are the government in much of the Northern Triangle. Sessions & Trump have intentionally misconstrued the law, misrepresented facts, and violated Constitutional Due Process to artificially deny most of these individuals legal protections they deserve. Their return is likely to mean death, torture, a lifetime of abuse, extortion, rape, sexual enslavement, forced drug trafficking, or prostitution. Others will be forcibly impressed into a life of serving the gangs because we have turned our collective backs on them. Inhumanity is inhumanity; it’s only a matter of degree. And, that the Nazis were even worse in no way makes any difference to those we are sentencing to death, torture, or a lifetime of abuse. Dead is dead. Tortured is tortured. Decapitated is functionally the same as shot or gassed.
Sessions keeps parroting that misdemeanor unlawful entry “isn’t a victimless crime.” Perhaps he’s right. The “victims” here are the migrants and their families seeking to exercise legal rights to apply for asylum. The “criminals” are Sessions, Trump, Nielsen, Miller, Kelly and other Administration hard liners who engage in child abuse rather than protection. And, they lie about what and why they are doing it. Who will eventually bring the real criminals to justice?
From right, Rene Bermudez wipes away tears as he holds his 4-year-old daughter Danyca during a protest on behalf of his wife Liliana Cruz Mendez on May 23.
Jim Watson/AFP/Getty Images
“Donald Trump hasn’t created the massive “deportation force” he promised as a candidate for president. But he has done the next best thing—boosting, bolstering, and unleashing the Immigration and Customs Enforcement agency, giving it broad authority to act at its own discretion. The result? An empowered and authoritarian agency that operates with impunity, whose chief attribute is unapologetic cruelty.
Under President Obama, who ramped up immigration enforcement even as he sought to protect large categories of unauthorized immigrants from deportation, ICE was a controversial agency whose practices came under heavy scrutiny from activists and some fellow Democrats. But in the year since Trump’s election, ICE has become something far more sinister: a draconian force for harassing and detaining people who pose no threat to the United States or its citizens.
And in keeping with one of President Trump’s first executive orders, which drastically expanded who the federal government considered a priority for deportation, the most striking aspect of ICE under this administration has been its refusal to distinguish between law-abiding immigrants, whose undocumented status obscures their integration into American life, and those with active criminal records—the “bad hombres” of the president’s rhetoric.
Erasing that distinction is how we get the arrest and detention of Lukasz Niec, a Polish immigrant and green card holder who was brought to the United States as a young child. Last week, ICE agents arrested Niec at his home in Michigan, citing two misdemeanor convictions for offenses that were committed when he was a teenager, according to the Washington Post. Although one of the convictions had been scrubbed from his record, it can still be used to remove him from the country. A practicing physician, Niec now sits in a county jail, awaiting possible deportation.
Niec’s standing as an affluent professional makes him an unusual case. More typical is the plight of Jorge Garcia, a 30-year resident of the United States who was recently deported to Mexico after his arrest by ICE. Married with two American-born children, Garcia was brought to the country as a child. He was working to secure legal status when, following Trump’s election, he was ordered to leave the country. In a statement to CBS News, ICE explained that anyone violating immigration laws “may be subject to immigration arrest, detention and … removal from the United States.” Despite its ability to exercise discretion, ICE has opted for an indiscriminate approach to immigration enforcement, arresting and detaining unauthorized residents regardless of whether they pose a threat to the public.
In its drive to remove as many undocumented residents as possible, ICE has begun deporting immigrants who make routine check-ins to their offices, even if those people are simply awaiting visas or green cards that would allow them to stay. Vice News recounts the story of Andre Browne, a Barbados native married to an American citizen. At a recent check-in with ICE agents, he was “arrested and forced to surrender all personal belongings.” He was jailed and now faces deportation. Similarly, in Virginia, a mother of two, Liliana Cruz Mendez, was detained following her regular check-in with immigration officials. Her offense? A traffic misdemeanor.
ICE’s tactics can have life-changing effects, even when its targets are spared deportation. The New Yorker tells of Alejandra Ruiz, brought to the United States as an infant. Last March, she was arrested by ICE agents citing a deportation order issued when she was a toddler. She was shackled and sent to an immigrant-detention facility operated by a private-prison firm. Ruiz was eventually released—she had filed a motion to reopen her childhood case for asylum—but it came at the cost of her livelihood: She lost her job as a senior care worker.
In addition to these activities, ICE is ramping up its mass raids in an effort to spread paranoia and uncertainty in cities with large undocumented populations. The agency is deliberately targeting these “sanctuary cities,” hoping to compel cooperation with their newly aggressive enforcement operations. This is all part of a larger strategy to create an atmosphere of fear and desperation for unauthorized immigrants. It’s behind President Trump’s decision to rescind Deferred Action for Childhood Arrivals and end deportation protections for immigrants from Haiti and El Salvador. Vox’s Dara Lind describes it as “a combination of policy and messaging to keep the threat of deportation hanging over immigrants’ heads” meant to make sure “they don’t get too comfortable here because they could be taken at any minute.”
Anti-immigration hard-liners describe these incidents in the bloodless language of “immigration enforcement,” but that obscures the violence and trauma of what’s happening on the ground: ICE is whisking people away to jails or private prisons and then exiling them from their homes and communities with little chance of recourse or recompense. And the pace is only increasing. While the overall number of “border removals”—those caught trying to cross the border—dropped last year, as a result of economic trends and Trump’s hard-line policies, the proportion of “interior removals” undertaken by ICE increased. Most deportations still involve immigrants from a handful of Latin American countries, but “[t]he number of deportees from other nations rose 24 percent in Trump’s first year,” reports NPR.
The administration is still hoping to increase those efforts. A proposal released by the White House last week asked Congress to grant additional funds to hire more ICE agents as part of an overall increase in “border security” that would be effectively traded for a path to citizenship for more than 1 million Dreamers.
It will be up to Democrats to block those additional funds and, perhaps, to build a broader case against ICE and its tactics. Some high-profile Democrats, like Sen. Kamala Harris of California, have already publicly condemned the agency. “ICE raids across the country have torn mothers apart from their children. The raids lack transparency, spread fear, and harm public safety,” she said last year in a Facebook post. More recently, following a report that ICE was planning raids in retaliation to a new California law limiting cooperation between local law enforcement and federal immigration authorities, Harris said that such raids would be “an abhorrent abuse of power.”
Given the extent to which Democrats have helped build the architecture for today’s ICE, Harris’ statements—as well as similar ones by House Minority Leader Nancy Pelosi—may mark the beginning of a new and needed skepticism toward the agency. And if so, then the logic of their critique doesn’t just point toward reform—it points toward a fundamental rethinking of immigration enforcement and a move away from the authoritarianism of ICE as it exists.
What the country needs, in other words, is an honest discussion about whether ICE can be effectively reformed or if it must be abolished and replaced by an agency that can carry out its mission in a more effective and humane way.”
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Meanwhile, over in the Southern District of New York, U.S. District Judge Katherine B. Forrest had enough of ICE’s “Gonzo” tactics following the mindless arrest of immigration activist Ravi Ragbir. She blasted ICE’s actions in ordering Ragbir’s release to say good-bye to his family and wind up his affairs. Judge Forrest characterized ICE’s actions in detaining Ragbir as “unnecessarily cruel.”
Here is a copy of Judge Forrest’s order in Ragbir v Sessions:
Useless, counterproductive removals, waste of Government enforcement resources, irrationality, and unnecessary cruelty are, of course, at the heart of the Trump/Sessions/Miller immigration enforcement program. Certainly, the performance of ICE under Trump — not especially good at removing real criminals and threats or any other type of legitimate law enforcement — much better at busting minor offenders and law-abiding community members and sowing terror in ethnic communities — provides a compelling argument that DHS does not need any additional enforcement agents.
Indeed, I have hypothesized that what Trump, Sessions, Miller, and the White Nationalists are really doing is building the DHS into an internal security police force that will be used against all of those the Administration fears or views as opponents of their “Totalitarian-Wannabe State.”
In the meantime, arbitrary use of force and calculated unnecessary cruelty are likely to remain staples of the DHS under Trump. That’s why ICE is fast becoming American’s most loathed, mistrusted, and unprofessional police force. Bouie might well be right. Assuming that America recovers from the Trump regime, unfortunately not necessarily a given, ICE might well need to be abolished and “replaced by an agency that can carry out its mission in a more effective and humane way.”
