Supreme Court – Page 7 – immigrationcourtside.com

DEPORTATIONS RISE UNDER TRUMP, BUT BORDER CROSSINGS ALSO CONTINUE TO TICK UPWARDS! — Read My OpEssay: “Due Process Disaster Is Brewing In The U.S. Immigration Courts — Is Anybody Paying Attention?”

https://www.washingtonpost.com/local/immigration/deportation-orders-up-under-trump-fewer-prevail-in-immigration-court/2017/08/08/d3f0a6a6-7c74-11e7-9d08-b79f191668ed_story.html?utm_term=.848b8a83c250&wpisrc=nl_daily202&wpmm=1

Maria Sacchetti reports in the Washington Post:

“Federal immigration courts ordered 57,069 people to leave the United States in the first six months of the Trump administration, up nearly 31 percent over the same period last year, the Justice Department announced Tuesday.

Additionally, 16,058 people prevailed in their immigration cases, or had them closed, allowing them to stay in the United States, according to the data, which tallied orders issued from Feb. 1 to July 31. That total marked a 20.7 percent drop from the 20,255 immigrants who prevailed at the same time last year.

In a news release, the Justice Department said the notoriously backlogged court system is making a return to the “rule of law” under President Trump, who has vowed to speed deportations. But officials did not say how many of the orders were issued in absentia, meaning to immigrants who did not attend their hearings and therefore could not immediately be deported.

The Washington Post reported last week that thousands of immigrants, some seeking protection from violence in their homelands, have missed their court dates in recent years, often because they did not know about them or were afraid to show up. Advocates for immigrants have also raised concern about the lack of legal aid for immigrants, especially for those in immigration jails.

Last month, the president of the National Association of Immigration Judges said courts are severely understaffed, with about 300 immigration judges juggling a quickly rising caseload. An estimated 600,000 cases are pending nationwide.

United We Dream, an immigrant youth-led organization, protested ICE raids at Lafayette Square near the White House in February. (Linda Davidson/The Washington Post)

Unlike the traditional federal court system, which is independent of the executive branch of government, immigration courts are administered by the Justice Department.

That agency said that from Feb. 1 to July 31, judges issued 73,127 final immigration decisions, an increase of 14.5 percent over the same period in 2016.

Of those decisions, 49,983 were deportation orders, an increase of nearly 28 percent from the same period in 2016. The rest were orders to leave the United States voluntarily, a process by which immigrants generally face fewer barriers if they wish to apply to return to the United States in the future.

Federal officials attributed the increase in case completions to Trump’s Jan. 25 executive order dispatching more than 100 immigration judges to immigration jails across the country. More than 90 percent of cases heard in jails have led to orders to leave the United States. The department has also hired 54 new judges to work in immigration courts since Trump took office. More are being hired every month.

Dana Leigh Marks, an immigration judge based in San Francisco who heads the national association, wrote in Newsday last month that immigration courts should be separated from the Justice Department to ensure “judicial independence and protection from political influences.”

“More skilled court management, provided by experienced court administrators, rather than a law enforcement agency with priorities other than fairness and efficiency, would greatly enhance our ability to complete the tasks,” she wrote. “For example, cases would not be docketed to make political statements or serve as a show of force by the U.S. government.”

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

Due Process Disaster Is Brewing In The U.S. Immigration Courts — Is Anybody Paying Attention?

by Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Meanwhile, according to CQ Roll Call, arrests of undocumented individuals at the Southern Border rose 13.1% in July, the second consecutive monthly increase. Overall, DHS’s CBP reports arresting more family units and fewer unaccompanied children during the first 10 months of FY 2017.

While CBP “fobs off” the increases as “seasonal,” they do cast some doubt on whether the Trump Administration’s “send ’em all back asap” enforcement approach is really going to decrease undocumented migration in the long run. It might simply be a case of professional human smuggling operations revising their methods and raising their prices to adjust to higher risk factors and the “market” taking time to adjust to the changing practices and price increases. Moreover, to date, neither increases in removal orders, some as noted by Horwitz undoubtedly “in absentia orders” issued without full due process protections, nor increases in the number of U.S. Immigration Judges has stopped the growth of the backlog of cases before the U.S. Immigration Courts, currently estimated at more than 610,000 pending cases!

Apparently, under the Trump/Sessions regime success in the U.S. Immigration Court System is no longer measured by improvements in due process and fairness or by insuring that the individuals coming before the court get the protections and relief to which they are entitled under the law. Nope! The “rule of law” in Immigration Court now appears synonymous with turning that Court System into a “deportation mill” — just another whistle stop on the “deportation express.”

In other words, we’ve now come “full circle” since 1983. Then, EOIR was created to get the Immigration Courts out of INS to enhance due process and overcome a public perception that the courts were merely functioning as adjuncts of INS enforcement. The U.S. Immigration Courts and EOIR essentially have been “recaptured” by DHS enforcement.

EOIR has once again become an insulated “inbred” agency. Judicial appointments are made by DOJ politicos almost exclusively from the ranks of government attorneys, primarily DHS and DOJ prosecutors, just like when the “Legacy INS” ran the courts. Dockets are out of control, management is haphazard, technology is outdated and inadequate, and clerical staffing shortages are chronic. Staffing and docketing priorities are designed to accommodate enforcement priorities and to maximize removals, rather than to promote due process and fairness. Training and attention to the real “rule of law” are afterthoughts. Public service is a dirty word.

Morale among those at EOIR who care about the due process judicial mission has been steadily declining even as already sky-high stress levels continue to ratchet up. Numbers and removals have replaced fairness, professionalism, and unbiased decision making as objectives.

There are rumors that the Immigration Courts are going to be taken out of the DOJ and “reintegrated” into DHS to reflect their “true function” as part of the deportation mechanism. I think it’s unlikely unless Sessions becomes the new Secretary of DHS. But, really, what difference would it make? Sessions basically “reassumed” the immigration enforcement functions that once were in the Attorney General’s portfolio but were sent over to DHS when it was created after 9-11. Kelly merely signed off and nodded agreement to what Sessions told him to do.

A move by the DOJ apparently is afoot to revamp the judicial “evaluation system” to rate Immigration Judges more like “lower level DOJ attorneys” rather than judicial officials exercising independent judgment. Such bureaucratic ratings systems often elevate “productivity” above quality, value “following agency priorities” over exercising independent judgment, and serve to give the politicos at the DOJ more control and leverage over the day to day functioning of what is supposed to be a judiciary free from political influence or intimidation. Moreover, such ratings are often prepared by “supervisory judges” many of whom hear no cases and most of whom have little daily contact with the Immigration Judges they nominally “supervise.” In a well-functioning judicial system, the local “Chief Judge” is a leader and problem solver, not a “supervisor” of her or his peers.

At this point, the Trump Administration clearly has no interest in fixing the festering problems in the U.S. Immigration Courts; they are determined to make things worse. While there is some bipartisan support in Congress for an independent Article I U.S. Immigration Court, to date it hasn’t coalesced into any specific, politically viable legislation.

That basically leaves it to the Article III Federal Courts to decide whether or not to fix the Immigration Courts. One possibility is that they will decide that it is too much: just forget due process for foreign nationals, rubber stamp the removal orders, stay above the fray, and become another “whistle stop on the deportation express.”

A more optimistic possibility is that they will draw the line on the due process nightmare in the U.S. Immigration Courts being promoted by the Administration. But, that will make the Article III Courts a major “track block” on the deportation express. The trains will derail and pile up on the doorstep, and the Article III Courts can count on little if any help or resources from Congress in untangling the mess and getting things back on track. Understandably, from a practical if not a legal point of view, some Article III Judges aren’t going to want to go there.

One thing is certain — things can’t continue they way they are going now. Something has got to give! And, when it does, the Article III Courts will be forced to do some self-examination and decide whether they are going to be part of the problem, or part of the solution. Are life-tenured Article III judgeships in essence about securing life sinecures, or about taking a perhaps unpopular and labor intensive stand for Constitutional Due Process for all, even the weakest and most vulnerable among us? We’ll soon find out!

PWS

08-09-17

GOBBLEDYGOOK CENTRAL: After 12 Years Kicking Around The System, 9th Circuit Declines Chevron Deference To Matter of Cortez Canales, 25 I. & N. Dec. 301 (BIA 2010) & Punts Issue Back To BIA — Lozano-Arredondo v. Sessions — Why “Chevron Must Go!” — Somewhere In This Judicially-Created Mess, It’s All About A 2-Decades Old “Petty Theft” Conviction!

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/08/11-72422.pdf

Key quote:

“We grant Lozano-Arredondo’s petition and remand to the BIA. We hold, first, that petit theft under Idaho law does not qualify categorically as a crime involving moral turpitude. We also hold that under the modified categorical approach, the record of conviction is inconclusive. Because the effect of that inconclusive record presents an open legal question now pending before another panel of this court, our analysis ends there. On remand, once this burden of proof question is resolved, the BIA should determine whether Lozano- Arredondo’s conviction qualifies as a crime involving moral turpitude under the modified categorical approach, unless the case is resolved on other grounds.

Second, we hold the BIA erred by deciding at Chevron step one that an “offense under” § 1227(a)(2)(A)(i) does not include the within-five-years element. Because the BIA “erroneously contends that Congress’ intent has been clearly

24 LOZANO-ARREDONDO V. SESSIONS

expressed and has rested on that ground, we remand to require the agency to consider the question afresh.” Delgado, 648 F.3d at 1103–04 n.12 (quoting Negusie, 555 U.S. at 523) (internal quotation marks omitted); see INS v. Ventura, 537 U.S. 12, 16–17 (2002). In light of this holding and the explanations we have given, the BIA must reconsider its interpretation of the phrase “offense under” in § 1229b(b)(1)(C).”

PANEL: Circuit Judges William A. Fletcher, Raymond C. Fisher and N. Randy Smith

OPINION BY: Judge Fisher

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

Com’ on Man! This case has been around the system since 2005 — 12 years! The conviction is now two decades old. The case depends on two legal questions.

The 9th Circuit should answer the legal questions and either 1) affirm the BIA’s final order of removal, or 2) remand the case to the BIA to apply the law that has been determined by the 9th Circuit to the facts of this case. The court’s prose is impenetrable; the court’s rationale, based on Chevron, is irrational.

It’s time for Chevron to go and for Article III Courts to do their job of deciding legal questions rather than bogging down the system with infinite delays through needless remands to have the BIA pass on difficult legal questions. That’s the Article III Courts’ Constitutional function; they have been avoiding it for years under the Supreme’s judge-made facade of Chevron and Brand X.

(Yes, I know the 9th Circuit is only following Chevron, as they are bound to do. This is something the Supremes need to address, sooner rather than later. The result in this case is pure legal obfuscation.)

Oh yeah, while we’re at it, if there is an “open legal question” before another panel of the 9th Circuit, why remand the case to the BIA which can’t resolve that? Why not send this case to the “other panel” or ask your colleagues on the other panel if they could expedite their consideration of this issue?

PWS

08-08-17

3rd Cir. “Just Says No” To DOJ Request For Remand To Give BIA Chance To Misconstrue Statute — PA misdemeanor count of obstructing the administration of law or other governmental function is categorically NOT a CIMT — Ildefonso-Candelario v. Atty. Gen.

http://www2.ca3.uscourts.gov/opinarch/163625p.pdf

Key quote:

“Instead of defending the conclusion that section 5101 is categorically a crime involving moral turpitude, the government requests a remand without decision to permit the BIA to reconsider its position in the matter. See Ren v. Gonzales, 440 F.3d 446, 448 (7th Cir. 2006); see generally SKF USA Inc. v. United States, 254 F.3d 1022, 1027-30 (Fed. Cir. 2001) (outlining approaches to agency remand requests). The government points out that the BIA is generally entitled to Chevron deference for reasonable interpretations of ambiguous terms, Mehboob, 549 F.3d at 275, and theorizes that the BIA might conjure up an interpretation of the term “moral turpitude” enabling a conclusion that section 5101 categorically involves “conduct that is inherently base, vile, or depraved,” Knapik, 384 F.3d at 89.

Yet the government has been unable, either in its brief or at oral argument, to articulate any understanding of the phrase “crime involving moral turpitude” that could plausibly encompass section 5101. This is not because of a failure of imagination. It instead reflects the simple fact that there is no conceivable way to describe the least culpable conduct covered by section 5101 — such as the illegal but nonviolent political protest described in Ripley — as inherently vile, or as “a reprehensible act committed with an appreciable level of consciousness or deliberation.” Partyka, 417 F.3d at 414. Moreover, no “emerging case law,” Ren, 440 F.3d at 448, involving either section 5101 or the definition of moral turpitude in other contexts calls for giving the BIA a second bite at the apple. See Jean-Louis, 582 F.3d at 469 (declining to remand where the relevant legal materials, including BIA decisions, “lead[] inexorably to the conclusion” that an offense is not morally turpitudinous).

Under the circumstances, we see no reason for remanding without correcting the legal error apparent on the face of the petition. See Mayorga v. Att’y Gen., 757 F.3d 126, 134 (3d Cir. 2014); cf. City of Arlington v. FCC, 133 S. Ct. 1863, 1874 (2013) (“[W]here Congress has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow.”). We thus deny the government’s request for a voluntary remand and hold that 18 Pa. Cons. Stat. § 5101 is not categorically a crime involving moral turpitude.”

PANEL: JORDAN, KRAUSE, Circuit Judges and STEARNS, District Judge.

OPINION BY: JUDGE STEARNS

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

Looks like the 3rd Circuit is starting to get the picture on how the BIA, under pressure from the politicos in the DOJ to produce more removals, has a strong tendency to construe the law against respondents and in favor of just about any DHS position that will facilitate removals.

That’s why it’s time for the Article III Courts to put an end to Chevron and the pro-Government, anti-individual results that it favors. “Captive” administrative tribunals responsible to Executive Branch politicos can’t be trusted to fairly and independently construe ambiguous statutory language. That’s properly the job of the Article III Courts; they have been shirking it for far too long! The Supremes have essentially reversed the results of Chief Justice John Marshall’s “victory” over President Thomas Jefferson in Marbury v. Madison!

PWS

08-04-17

CIVIL RIGHTS: Sessions Discovers America’s REAL Civil Rights Crisis — Insufficient White Privilege — Every White Kid Should Have Have Preferred Admission (How Else Do You Think Trump & Some Of His Cronies Got Into Good Schools?) — Gonzo Wants To Use Taxpayer $$$ To Turn Civil Rights Laws Against Blacks & Other Minorities!

https://www.nytimes.com/2017/08/01/us/politics/trump-affirmative-action-universities.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region&region=top-news&WT.nav=top-news&_r=0

Charlie Savage reports for the NY Times:

“WASHINGTON — The Trump administration is preparing to redirect resources of the Justice Department’s civil rights division toward investigating and suing universities over affirmative action admissions policies deemed to discriminate against white applicants, according to a document obtained by The New York Times.

The document, an internal announcement to the civil rights division, seeks current lawyers interested in working for a new project on “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”

The announcement suggests that the project will be run out of the division’s front office, where the Trump administration’s political appointees work, rather than its Educational Opportunities Section, which is run by career civil servants and normally handles work involving schools and universities.

The document does not explicitly identify whom the Justice Department considers at risk of discrimination because of affirmative action admissions policies. But the phrasing it uses, “intentional race-based discrimination,” cuts to the heart of programs designed to bring more minority students to university campuses.

Supporters and critics of the project said it was clearly targeting admissions programs that can give members of generally disadvantaged groups, like black and Latino students, an edge over other applicants with comparable or higher test scores.

The project is another sign that the civil rights division is taking on a conservative tilt under President Trump and Attorney General Jeff Sessions. It follows other changes in Justice Department policy on voting rights, gay rights and police reforms.

. . . .

The pending start of the affirmative action project — division lawyers who want to work on it must submit their résumés by Aug. 9, the announcement said — joins a series of changes involving civil rights law since Mr. Trump’s inauguration.

In a lawsuit challenging Texas’ strict voter identification law, the Justice Department switched its position, dropping the claim that the law was intentionally discriminatory and later declaring that the law had been fixed. Mr. Sessions has also made clear he is not interested in using consent decrees to impose reforms on troubled police departments and has initiated a sweeping review of existing agreements.

Last week, the Justice Department, without being asked, filed a brief in a private employment discrimination lawsuit. It urged an appeals court not to interpret the ban on sex-based discrimination in the Civil Rights Act of 1964 as covering sexual orientation. The Obama administration had shied from taking a stand on that question.

Vanita Gupta, who ran the civil rights division in the Obama administration’s second term and is now president of the liberal Leadership Conference on Civil and Human Rights, noted that the briefs in the Texas voter identification and gay-rights cases were signed only by Trump administration political appointees, not career officials, just as the affirmative action project will apparently be run directly by the division’s front office.

“The fact that the position is in the political front office, and not in the career section that enforces antidiscrimination laws for education, suggests that this person will be carrying out an agenda aimed at undermining diversity in higher education without needing to say it,” Ms. Gupta said.

The civil rights division has been a recurring culture-war battleground as it passed between Democratic and Republican administrations.”

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

Wow! Talk about waste, fraud, and abuse by political officials at the DOJ! Oh, GAO, where art thou when the country needs you? Assuming that any minorities can still vote by the time Sessions and Trump get through — a big if — they might want to consider turning out for candidates who will support the “original intent” of Civil Rights laws, rather than perverting them to further entrench the White (Largely Male) GOP Establishment.

PWS

08-02-17

U.S. IMMIGRATION COURTS APEAR STACKED AGAINST CENTRAL AMERICAN ASYLUM APPLICANTS — Charlotte, NC Approval Rates Far Below Those Elsewhere In 4th Circuit — Is Precedent Being Misapplied?

https://www.washingtonpost.com/national/migrants-in-surge-fare-worse-in-immigration-court-than-other-groups/2017/07/30/e29eeacc-6e51-11e7-9c15-177740635e83_story.html?utm_term=.5d2ca3c80278

Julia Preston of The Marshall Project reports in the Washington Post:

CHARLOTTE — Toward the end of a recent morning hearing in immigration court, Judge V. Stuart Couch looked out from his bench on a nearly empty chamber. On one side sat the prosecutor. But at the table for the immigrants, the chairs were vacant.

From a stack of case files, Couch called out names of asylum seekers: Dina Marciela Baires from El Salvador and her three children. No answer. Lesley Carolina Cardoza from Honduras and her young daughter. Silence. After identifying 17 people who had failed to appear for their hearings, the judge ordered all of them to be deported.

The scene is replaying across the country as immigration courts resolve the asylum cases of families who streamed across the Southwest border since 2014. Tens of thousands of families from El Salvador, Honduras and Guatemala, and some from Mexico, came here citing their need for protection from predatory gangs and criminal violence. Now, they face the prospect of being sent back to countries they fear have not become any less dangerous.

Of nearly 100,000 parents and children who have come before the courts since 2014, most asking for refuge, judges have issued rulings in at least 32,500 cases, court records show. The majority — 70 percent — ended with deportation orders in absentia, pronounced by judges to empty courtrooms.

Their cases are failing just as President Trump is rapidly expanding deportations.

Immigration courts have long had high rates of in absentia rulings, with one-quarter of all cases resolved by such decisions last year. But the rate for families who came in the border surge stands out as far higher, according to the Justice Department office that runs the immigration courts and tracked the cases of those families over the past three years.

Many immigrants did not understand what they were supposed to do to pursue their claims and could not connect with lawyers to guide them. Some just stayed away, fearing they could be deported directly from courthouses and choosing instead to take their chances in the immigration underground.

New cohort of fugitives

As a result, migrants from the surge are faring worse in the courts than other groups. By late January, the courts had granted asylum or otherwise allowed migrants to remain legally in this country in 3,792, or 11 percent, of those cases involving families, the figures show. By contrast, in all asylum cases last year, 43 percent ended in approvals.

The large-scale failure of the families’ claims is the final unraveling of President Barack Obama’s strategy to deal with the asylum seekers.

Unlike most illegal border crossers, who can generally be swiftly deported, many recent migrants from Central America asserted that they had strong reasons for seeking protection in the United States. Rather than dodging the Border Patrol, they turned themselves in, saying they were afraid to return home. Under U.S. law, that starts an asylum proceeding in which courts evaluate claims that migrants faced dangerous persecution.

When the surge began in 2014, Obama administration officials, worried they could spur an even greater flow if they accepted the migrants as refugees, tried to detain them near the border and deport them. But federal courts curtailed the detention of children and their parents, and so the Obama administration funneled them into immigration courts to ask for asylum. Families and unaccompanied minors who passed a first stage of screening at the border were released to pursue their cases in courts around the country.

In many of those cases, judges in the overburdened courts are only now rendering their decisions — and families from the Central American surge are becoming a new cohort of immigrant fugitives.

In the past, an order of removal — the immigration equivalent of an arrest warrant — did not necessarily lead to swift expulsion. But the Trump administration has made it clear that anyone on the wrong side of immigration law can be tracked down and deported, whether or not they committed a serious crime.

María Arita and her children, Amilcar, left, and Allison, at their home in Charlotte. Arita came to the United States from Honduras in 2013 with her then-3-year-old son to escape a gang that was targeting her family. (Logan Cyrus/For The Washington Post)

‘Don’t stop in Charlotte!’

The fates of the asylum-seeking families are particularly stark in Charlotte. Three immigration judges, appointed by the U.S. attorney general, labor under a backlog of nearly 8,000 cases. The court, which covers both Carolinas, has an amply earned reputation as one of the toughest in which to win an asylum case.

María Arita discovered these realities only after she left Honduras in 2013, forded the Rio Grande in south Texas with her 3-year-old son, turned herself in to border authorities and was sent to Charlotte to join her husband, who had found work here after coming illegally a year earlier. She said a mara — a criminal gang — had taken a dislike to her husband, for reasons the family still does not fully understand. But the gang made its animus very clear.

“First they killed my brother-in-law,” Arita said, trying to remember the attacks in the correct order. “Then they killed my father-in-law. Then . . . they shot another brother-in-law. That’s when my husband realized he had to get out, and he left for the United States. Then they broke down the door of my house. I wasn’t home, but they left a message saying they were going to kidnap my son to make my husband come back.”

Unlike many asylum seekers in this region, Arita found a lawyer. But after she paid several thousand dollars in legal fees, she said, he dropped her case. Despite her family’s trail of death in Honduras, he told her, she wasn’t going to win in Charlotte.

A photo of María Arita from when she was living in Honduras, next to a school photo of her son, Amilcar. (Logan Cyrus/For The Washington Post)

Terrified of going back, she went by herself to a hearing this spring. Before it was over, the judge had denied her claim and given her a few weeks to pack up, take her son and leave the United States. Results like that are among many reasons immigrants nationwide have been failing to appear in court.

Some migrants came to this country more to escape poverty than violence, and they may have avoided court because they knew their asylum claims were likely to be rejected. But more than 85 percent of the families passed the first legal test for asylum, in which they had to show they had a “credible fear” of returning home, according to Department of Homeland Security figures.

For many of them, the law itself presents a problem. Migrants running from gangs do not easily fit into the classic categories for asylum, which offers protection to people fearing persecution based on race, religion, nationality or politics. Yet in some courts, artful lawyers have won for people from Central America by crafting cases to fit a fifth, more loosely defined category of persecution in the law, against members of a “particular social group.” In recent years, migrant women have also won if they were escaping extreme domestic violence.

But not in Charlotte. Couch and Judge — two out of three judges on the bench — have made it clear they view asylum as a narrow opportunity, and they regard claims stemming from gang violence as inconsistent with the letter of the law. Couch has scolded lawyers for trying to bend the statute like “silly putty” to make it work for Central American migrants.

Couch grants asylum in 18 percent of the cases he hears, while Pettinato grants 15 percent, both less than half the national rate, according to an analysis of court records by the Transactional Records Access Clearinghouse (TRAC), a data research group at Syracuse University. As sitting judges, Couch and Pettinato were not able to comment on their rulings.

“We should set up billboards on the highway for people coming from the border. Keep going, don’t stop in Charlotte!” said Viridiana Martínez, who works with Alerta Migratoria, a group in Durham, N.C., that helps immigrants fight deportation.”

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

Read Julia’s complete article at the link.

According to the FY 216 Statistics Yearbook, elsewhere in the Fourth Circuit the Baltimore Immigration Court granted 63% of asylum application while the Arlington Immigration Court was nearly identical with 62%. The Charlotte Immigration Court, on the other hand, was 17%.

The Supreme Court in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) and the BIA in Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987) both commanded that the “well-founded fear” standard for asylum be generously applied in favor of applicants! Although the BIA has not been as generous as it could and should have been in cases involving Central Americans needing protection from targeted gang violence, they have gone out of their way to reject notions that there should be any “presumption” against asylum grants from Central America. For example, in Matter of M-E-V-G-, 26 I&N Dec. 227, 251 (BIA 2014), the BIA cautioned their decisions “should not be read as a blanket rejection of all factual scenarios involving gangs. . . . . Social group determinations are made on a case-by-case basis.”

Moreover, established BIA precedents giving favorable treatment to LGBT individuals and those seeking protection from domestic violence frequently apply to cases of those fleeing Central America. See e.g., Matter of Tobaso-Alfonso, 20 I&N Dec. 819 (BIA 1990) (gays); Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014) (domestic violence). Additionally, the Fourth Circuit Court of Appeals has generally been protective of the substantive and procedural rights of asylum seekers. See, e.g., Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) (family members).

Something is seriously wrong in the Charlotte Immigration Court. Due process is not being fully protected. More seriously, nobody in “the system” — DOJ & EOIR — appears to care or be doing anything to correct the problems in Charlotte.

This is symptomatic of deeper problems in our U.S. Immigration Court system: 1) a weak BIA that fails to protect asylum seekers and require IJs to follow precedents favorable to asylum seekers; 2) lack of proper training compounded by the departure of experienced judges, hiring of new judges, and an inexplicable decision by the DOJ to cancel IJ training this year; and 3) a biased selection system that has systematically excluded private sector asylum expertise developed in representing applicants over this and the past three Administrations. Overall, it is what happens when a system lacks judicial independence and has not developed a merit selection system for judges.

The Immigration Judges in Charlotte can and should do better in providing fairness and due process for asylum seekers. Given the systemic failures, at present it appears to be up to those representing asylum seekers and the Fourth Circuit Court of Appeals to see that asylum seekers in the Charlotte Immigration Court receive the Constitutional due process to which they are entitled.

PWS

07-31-17

THE HUMAN COST OF GONZO POLICIES!

https://www.washingtonpost.com/local/trumps-travel-ban-is-leaving-these-orphans-stuck-in-refugee-camps/2017/07/28/58195d24-6d52-11e7-8fb5-d101fa38cebd_story.html?utm_term=.c1979f167906&wpisrc=nl_buzz&wpmm=1

Justin Wm. Moyer reports in the Washington Post:

“The tranquil home of James Isaacs, an Episcopal priest, and wife Maggie Brewinski Isaacs, a pediatrician, sits on a hill above a creek on 5½ wooded acres in suburban Maryland. Inside, an unoccupied bedroom awaits a refugee ready to join the family.

But the 16-year-old girl, blocked by the Trump administration’s travel ban, is stuck in an Ethiopian refugee camp and might never see the room.

“The children ask us when their big sister is going to arrive,” James Isaacs said of his sons, ages 4 and 2, one of whom was adopted from South Africa. “We are left in this time of uncertainty because of the administration and the Supreme Court decision.”

The girl, from the East African nation of Eritrea and identified to The Washington Post only by her initials “M.T.” to protect her privacy, is an “unaccompanied minor refugee” — a young, displaced person without a parent or guardian who is seeking refuge in the United States.

Jimmy Isaacs, 4, left, and his brother, Joseph, 2, play on the bed inside the room that the family prepared to foster an “unaccompanied minor refugee” from Africa. (Salwan Georges/The Washington Post)

A painting is seen inside the room that Irene Stevenson prepared to foster an “unaccompanied minor refugee” from Africa. (Salwan Georges/The Washington Post)

On July 19, the Supreme Court allowed the Trump administration’s travel ban to stand, leaving about 100 unaccompanied minor refugees stranded overseas. The decision comes after months of judicial back-and-forth over the ban, casting doubt on the children’s plans to live in the United States.

“They are youth that are on their own,” said Autumn Orme, a director at Lutheran Social Services of the National Capital Area, which works with unaccompanied minor refugees. “I find it pretty extraordinary that they are managing this all on their own. These are children that don’t have parents to care for them.”

[Supreme Court allows Trump refugee ban but backs broader exemptions for relatives]

The result: M.T., an orphan who fled child labor in Eritrea two years ago and was approved by the State Department to live in the United States, remains in legal limbo.

“Not only is she missing out now, we’re missing out,” Isaacs said.

The Isaacs family is not the only one with an empty bedroom after the ban.”

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

Read the rest of the stories at the link.

So what kind of country bars vulnerable kids in need while letting the real threats to our national security — Trump, his family, and his cronies — have free rein at the seat of Government? Trump, his family, and some of his advisers probably wouldn’t be able to pass the type of security screening to which overseas refugees are subjected.

PWS

07-28-17

COUNTING ON THE FEDERAL COURTS TO SAVE US FROM TRUMP’S EXCESSES? — Not So Fast — Trump Is Rapidly Reshaping Them In His Own Image, And The Results Will Be Felt For Decades After He Leaves Office — “Polemicists In Robes!”

https://www.washingtonpost.com/opinions/the-one-area-where-trump-has-been-wildly-successful/2017/07/19/56c5c7ee-6be7-11e7-b9e2-2056e768a7e5_story.html?utm_term=.cc543104398a

Ronald A. Klain writes in the Washington Post:

“Progressives breathed a sigh of relief recently when Justice Anthony M. Kennedy decided to remain on the Supreme Court for presumably at least one more year. But no matter how long Kennedy stays, a massive transformation is underway in how our fundamental rights are defined by the federal judiciary. For while President Trump is incompetent at countless aspects of his job, he is proving wildly successful in one respect: naming youthful conservative nominees to the federal bench in record-setting numbers.

Trump’s predecessors all slowly ramped up their judicial nominations during their first six months in office. Ronald Reagan named Sandra Day O’Connor to the Supreme Court and made five lower-court nominations in that period; George H.W. Bush made four lower-court nominations; Bill Clinton named Ruth Bader Ginsburg to the high court but no lower-court judges; and George W. Bush named four lower-court judges who were processed by the Senate (plus more than a dozen others sent back to him and later renominated). The most successful early actor, Barack Obama, named Sonia Sotomayor to the Supreme Court and nine lower-court judges who were confirmed.

What about Trump? He not only put Neil M. Gorsuch in the Supreme Court vacancy created by Merrick Garland’s blocked confirmation, but he also selected 27 lower-court judges as of mid-July. Twenty-seven! That’s three times Obama’s total and more than double the totals of Reagan, Bush 41 and Clinton — combined. For the Courts of Appeals — the final authority for 95 percent of federal cases — no president before Trump named more than three judges whose nominations were processed in his first six months; Trump has named nine. Trump is on pace to more than double the number of federal judges nominated by any president in his first year.

Moreover, Trump’s picks are astoundingly young. Obama’s early Court of Appeals nominees averaged age 55; Trump’s nine picks average 48. That means, on average, Trump’s appellate court nominees will sit through nearly two more presidential terms than Obama’s. Many of Trump’s judicial nominees will be deciding the scope of our civil liberties and the shape of civil rights laws in the year 2050 — and beyond.

How conservative are Trump’s picks? Dubbed “polemicists in robes” in a headline on a piece by Slate’s Dahlia Lithwick, Trump’s nominees are strikingly . . . Trumpian. One Trump nominee blogged that Kennedy was a “judicial prostitute” for trying to find a middle ground on the court, and said that he “strongly disagree[d]” with the court’s decision striking down prosecution of gay people under sodomy laws. Another equated the Supreme Court’s decision in Roe v. Wade, upholding a woman’s right to choose to have an abortion, to the court’s 19th-century Dred Scott finding that black people could not be U.S. citizens. Another advocated an Alabama law that denied counsel to death-row inmates.

Progressives who are increasingly counting on the federal courts to be a bulwark against Trump’s initiatives will increasingly find those courts stocked with judges picked by, and in sync with, Trump. With federal judges serving for life, one might think that the process of dramatically changing the makeup of the federal judiciary would take a long time. But given Trump’s unprecedented pace, in just one more year, one-eighth of all cases filed in federal court will be heard by a judge he appointed.

With the abolition of the filibuster, Trump’s nominees need only the votes of Republican senators to win confirmation. Yes, if Kennedy resigns and Trump nominates someone who might overturn Roe v. Wade, pro-choice Republicans could balk; and a few of Trump’s most outrageous lower-court nominations might be unnerving enough to attract GOP opposition. But the reality is that most of Trump’s rapid-fire, right-wing, youthful lower-court nominations are poised to make it to the bench. ”

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

Read the rest of Klain’s article at the link.

If you want to have a say in the shaping of the Federal Judiciary, you have to win the White House, the Senate, or, like the GOP did, both. Elections have consequences, particularly for the losers.

PWS

07-20-17

BREAKING: SPLIT DECISION — SUPREMES SAY YES TO GRANDPARENTS, DEMUR ON REFUGEES (FOR NOW)!

Here’s the report from NPR News:

Merrit Kennedy, reporting:

“The Supreme Court has upheld parts of a lower court order that had widened the definition of which citizens from the six Muslim-majority countries covered by the Trump administration’s travel ban are still eligible to travel to the U.S.

The order issued Wednesday leaves in place the action of a U.S. District Court judge in Hawaii who broadened the definition of close family to include categories such as the grandparents and cousins of a person in the U.S.

However, the Supreme Court blocked another part of the lower court order that said citizens with formal assurances from a U.S. refugee resettlement agency are eligible.

Since the travel ban was introduced, defining which citizens from the six countries are exempt has been redefined multiple times.

Last month, as we reported, the Supreme Court ruled that parts of the Trump administration’s ban can take effect while the justices prepare to hear oral arguments on the case later this year.

But the court said people from the six countries — Iran, Libya, Somalia, Sudan, Syria and Yemen — can be exempted from the ban if they have a “bona fide relationship” with a person in the U.S., including close family members.

The legal question here is centered on how to define a “bona fide relationship.” As we reported, the Trump administration argued that assurances from a refugee agency are “not sufficient” to constitute this relationship.

However, the judge in Hawaii rejected this argument. “An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones: it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations,” District Court Judge Derrick Watson wrote. “Bona fide does not get any more bona fide than that.”

The Supreme Court justices, however, stayed that portion of the judge’s order without elaborating. It sent the case back to the 9th U.S. Circuit Court of Appeals for a ruling. The Trump administration had asked the high court to settle the dispute, leapfrogging the 9th Circuit, which the justices denied without comment.

The order said Justices Clarence Thomas, Samuel Alito and Neil Gorsuch would have stayed the entire lower court order, including the broadening of close family categories.

Naureen Shah, Amnesty International USA senior director of campaigns, stated that Wednesday’s order “jeopardizes the safety of thousands of people across the world including vulnerable families fleeing war and violence.”

Earlier this week, the State Department released new instructions to U.S. embassies and consulates to implement the Hawaii federal court’s order expanded definition of close family to include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts and uncles, nephews and nieces, and cousins.”

Here is link to copy of the brief per curium order:

https://www.supremecourt.gov/orders/courtorders/071917zr_o7jp.pdf

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

Six Justices of the Court appear ready to “just say no” to some parts of the “blanket ban” on the current record. However, they obviously deem “refugees” a closer case, leaving that for the Ninth Circuit to review first. So, there is still a chance that refugees ultimately will prevail. But, as I’ve said many times before, it’s one of the worst times in recent history to be a refugee.

PWS

07-19-17

UNDER THE RADAR: Trump Administration Implementing “Muslim Ban” Without Fanfare!

https://www.nytimes.com/2017/07/18/opinion/trump-muslim-ban-supreme-court.html?em_pos=small&emc=edit_ty_20170718&nl=opinion-today&nl_art=3&nlid=79213886&ref=headline&te=1&_r=0

FARHANA KHERA and JOHNATHAN J. SMITH write in a NY Times Op-Ed

“Lost amid the uproar over the Trump administration’s travel restrictions on citizens from Muslim-majority countries and the impending showdown at the Supreme Court are the insidious ways that the government has already begun to impose a Muslim ban.

It’s doing so through deceptively boring means: increasing administrative hurdles and cementing or even expanding the current travel restrictions that are not under review at the court. The collective impact of these changes will be that a permanent Muslim ban is enshrined into American immigration policy.

. . . .

The Twitterverse and cable news pundits are unlikely to be mobilized by policy changes that come about through these types of bureaucratic processes. Most people are not closely following the intricacies of visa vetting and screening.

That’s a shame because there is already evidence that they are working. The number of visas issued to citizens from Muslim-majority countries has decreased by double digits. Among nearly 50 Muslim-majority countries, nonimmigrant visas declined almost 20 percent in April, compared with the monthly average from 2016. Visas issued to people from Iran, Syria, Sudan, Somalia, Libya and Yemen, the six countries on the travel ban list, were down 55 percent. Those figures will continue to get worse if these other provisions are implemented.

Finally, consider an embarrassing incident. An Afghan girls’ robotics team was initially denied entry into the United States to participate in a science competition. It was only after public outcry and an intervention by President Trump that they were granted passage. Situations like that are also likely to have a chilling effect on people from Muslim-majority countries, resulting in further decreases.

A Muslim ban, even when implemented through seemingly mundane bureaucratic processes, simply has no place in our country.

BIA/DURESS DEFENSE — NEW COMMENTARY FROM JUDGE JEFFREY S. CHASE: “Former IJs and Board Members File Amicus Brief in Negusie Remand”

https://www.jeffreyschase.com/blog/2017/7/17/former-ijs-and-board-members-file-amicus-brief-in-negusie-remand

Jeffrey writes:

“An Amicus brief was recently filed with the BIA on behalf of seven former immigration judges (including myself) and a former BIA board member in the case of Negusie v. Holder. (In addition to the former Board member, one of the included IJs also served as a temporary Board member). The case was remanded by the U.S. Supreme Court in order for the Board to determine whether there is a duress exception to the bar to asylum which applies to those who have persecuted others on account of a protected ground.

The context for the brief is as follows. After initially ceding a limited duress exception to the Board, DHS recently changed its position. In now opposing such exception, DHS relies in part on its contention that the complex analysis such determinations require would overburden the currently backloggedimmigration courts.

The amicus brief on behalf of the former IJs and Board member offers three primary points in rebuttal to this portion of DHS’s claim. First, the brief points out that the immigration courts’ present backlog is largely the result of policy decisions made by both EOIR and DHS itself. As the brief argues, it is disingenuous for DHS to create policies that contribute to the immigration courts’ backlog, and then argue to limit immigration judge’s decision-making authority as a means of alleviating its self-created burden. The brief adds that such “bureaucratic failures resulting in the immigration court backlog cannot be a reason to deny people their right to a fair and just outcome.”

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

Read Jeffrey’s complete analysis over on his own website at the above link.

Why the “Chevron Doctrine” has gotta go:

Folks, the Supremes remanded the Negusie case in 2009 — that’s right, approximately eight years ago! Since that time, the supposedly “expert” BIA has been screwing around trying to came up with guidance.

It was obvious from the Supreme’s decision that they all had firm opinions on the correct answer (notwithstanding some very disingenuous protests to the contrary). So, why send the case back several levels in the system, all the way to a non-Article III administrative tribunal to make a decision that the BIA is either unwilling or incapable of making in a timely manner?

It’s time for the Supremes to step up to the plate and decide difficult and controversial issues when they are presented to them, not “punt” back to lesser qualified Executive agencies that lack the necessary judicial independence to make the best and fairest decisions. Why have a Supreme Court that is afraid to decide important legal issues?

In the meantime, lives are in the balance as the BIA flounders about trying to reach a decision. U.S. Immigration Judges and lower Federal Courts have had to “go it alone” on real-life cases while the BIA ruminates. Indeed, I had to decide such cases at the trial level on several occasions without any meaningful guidance from the BIA.

Moreover, the obvious unfairness of these delays is well illustrated here. During the eight years at the BIA, the Administration has changed and is now taking a much more restrictive position. But, if the BIA had done its job, the precedent, presumably more generous, would have been established years ago, and many cases would already have been finally determined thereunder.

It’s time to put an end to the absurdly “undue deference” that the Supremes give to non-Article III decision makers on questions of law under Chevron.

PWS

07-17-17

TRUMP ADMINISTRATION ASKS SUPREMES TO INTERVENE (AGAIN) IN TRAVEL BAN CASE!

http://www.huffingtonpost.com/entry/trump-supreme-court-travel-appeal_us_596980fde4b017418627ad08

HuffPost reports:

“The U.S. Justice Department on Friday asked the Supreme Court to block a judge’s ruling that prevented President Donald Trump’s travel ban from being applied to grandparents of U.S. citizens and refugees already being processed by resettlement agencies.

In a court filing, the administration asked the justices to overturn Thursday’s decision by a U.S. district judge in Hawaii, which limited the scope of the administration’s temporary ban on refugees and travelers from six Muslim-majority countries.

The latest round in the fight over Trump’s March 6 executive order, which he says is needed for national security reasons, came after the Supreme Court intervened last month to partially revive the two bans, which were blocked by lower courts.

The Supreme Court said then that the ban could take effect, but that people with a “bona fide relationship” to a U.S. person or entity could not be barred.

The administration had narrowly interpreted that language, saying the ban would apply to grandparents and other family members, prompting the state of Hawaii to ask Hawaii-based U.S. District Judge Derrick Watson to expand the definition of who could be admitted. He ruled for the state late on Thursday.

In the court filing, the Justice Department said the judge’s ruling “empties the (Supreme) Court’s decision of meaning, as it encompasses not just “close” family members but virtually all family members.

The conservative-leaning Supreme Court is not currently in session but the justices can handle emergency requests. The administration’s application could be directed either to Justice Anthony Kennedy, who has responsibility for emergency requests from western states, or to the nine justices as a whole. If the court as a whole is asked to weigh in, five votes are needed to grant such a request.

“The truth here is that the government’s interpretation of the Supreme Court’s stay order defies common sense,” said Omar Jadwat, a lawyer with the American Civil Liberties Union involved in challenging the ban. “That’s what the district court correctly found and the attorney general’s misleading attacks on its decision can’t change that fact.”

In his decision, Watson harshly criticized the government’s definition of close family relations as “the antithesis of common sense.”

Watson also ruled that the assurance by a resettlement agency to provide basic services to a newly arrived refugee constitutes an adequate connection to the United States because it is a sufficiently formal and documented agreement that triggers responsibilities and compensation.”

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

Read the complete article at the link.

Wow, for a group that despises and disses Federal Judges on a regular basis, the Trumpsters seem to be always calling on them for help!

Hard to see what the “emergency” would be that can’t wait till October.

PWS

07-14-17

BREAKING: GRANDPARENTS, REFUGEES WIN, TRUMP LOSES (AGAIN) — JUDGE WATSON EXPANDS TRAVEL BAN EXCEPTIONS!

Here’s U.S. District Judge Derrick Watson’s full opinion:

https://assets.documentcloud.org/documents/3894503/Hawaii-v-Trump-Motify-Injunction-Order.pdf

KEY EXCERPTS

“PREDETERMINED AND UNDULY RESTRICTIVE:”

“First, the Government’s utilization of the specific, family-based visa provisions of the INA identified above constitutes cherry-picking and resulted in a

predetermined and unduly restrictive reading of “close familial relationship.” Other, equally relevant federal immigration statutes define a close family in a much broader manner.”

“ANTHESIS OF COMMON SENSE:”

“In sum, the Government’s definition of “close familial relationship” is not only not compelled by the Supreme Court’s June 26 decision, but contradicts it.

Equally problematic, the Government’s definition represents the antithesis of common sense. Common sense, for instance, dictates that close family members be defined to include grandparents. Indeed, grandparents are the epitome of close family members. The Government’s definition excludes them. That simply cannot be. See generally Klayman v. Obama, 142 F. Supp. 3d 172, 188 (D.D.C. 2015) (noting that courts should not “abandon all common sense” when considering injunctive relief).”

“BONA FIDE DOES NOT GET ANY MORE BONA FIDE THAN THAT:”

“Nothing in the Supreme Court’s decision requires a refugee to enter into a contract with a United States entity in order to demonstrate the type of formal relationship necessary to avoid the effects of EO-2. An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones: it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, including compensation, it is issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security, and it is issued in the ordinary course, and historically has been for decades. See Slip Op. at 12. Bona fide does not get any more bona fide than that.11 Accordingly, Plaintiffs’ Motion is granted with respect to this specific request for injunctive relief.”

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

PWS

07-14-17

9th Stuffs Hawaii On Travel Ban 2.0 — No Jurisdiction!

http://thehill.com/policy/national-security/341072-hawaii-loses-final-appeal-to-narrow-scope-of-travel-ban

Alicia Cohn reports in The Hill:

“Hawaii must wait on the Supreme Court to rule on President Trump’s so-called travel ban after losing a Friday appeal on an emergency motion to narrow the scope of the ban.

The 9th U.S. Circuit Court of Appeals in San Francisco ruled it does not have jurisdiction to clarify the U.S. Supreme Court’s decision regarding the ban, Reuters reported.

The Supreme Court last month granted the Trump administration’s request to implement part of the travel ban meant to temporarily block people from six predominantly Muslim countries from entering the United States.

The ban as currently implemented prevents travelers from six predominately Muslim countries entering the country if they lack a “bona fide relationship with any person or entity in the United States.”

Trump called the Supreme Court order a “clear victory for our national security.”

Hawaii challenged the ban in its current form this week, asking the U.S. District Court of the District of Hawaii to narrow its scope to define “bona fide relationship.” The state called it “preposterous” that the phrase does not appear to include fiances or grandparents.

However, a federal court judge said the state will have to turn to the Supreme Court for clarity.

“Because plaintiffs seek clarification of the June 26, 2017 injunction modifications authored by the Supreme Court, clarification should be sought there, not here,” District Court Judge Derrick K. Watson of the District Court of the District of Hawaii wrote.

Hawaii then filed an appeal Friday that was also denied.

The Supreme Court will hear the travel ban case when it returns for the fall term, which begins in October.”

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

Looks like the DHS definitions will remain in effect at least until the Fall.

PWS

07-09-17

TRAVEL BAN UPDATE: Hawaii Federal Judge Rebuffs Plaintiffs’ Attempt To Broaden Travel Ban Exception — Only The Supremes Can Clarify — Grandparents Of Americans Stiffed!

https://www.washingtonpost.com/national/religion/us-judge-in-hawaii-leaves-trumps-travel-ban-rules-in-place/2017/07/06/dedcf73a-62b7-11e7-80a2-8c226031ac3f_story.html?utm_term=.4b44cb00533

Audrey McEvoy of AP reports in the Washington Post:

“HONOLULU — A federal judge in Hawaii on Thursday left Trump administration rules in place for a travel ban on citizens from six majority-Muslim countries.

U.S. District Court Judge Derrick Watson denied an emergency motion filed by Hawaii asking him to clarify what the U.S. Supreme Court meant by a “bona fide” relationship in its ruling last month.

The Supreme Court ruled the administration could mostly enforce its travel ban, but said those “with a credible claim of a bona fide relationship with a person or entity in the United States” could enter.

Watson says the relationship question would be better posed to the Supreme Court, not him.

“This court will not upset the Supreme Court’s careful balancing and ‘equitable judgment,’” Watson said in his order.

Hawaii attorney general Doug Chin objected to the administration’s omission of grandparents, aunts and uncles from its list of people meeting the definition of a close relationship.

The Trump administration has said the exemption to the ban would apply to citizens of the six countries with a parent, spouse, child, adult son or daughter, son-in-law, daughter-in-law or sibling already in the U.S.

The U.S. Department of Justice said in an emailed statement that it was pleased with the decision.

“If the plaintiffs elect to proceed, we are confident that the U.S. Supreme Court will again vindicate the President and his constitutional duty to protect the national security of the United States,” the department said.

The Hawaii Attorney General’s Office noted after the ruling that the district court did not address the substance of either party’s arguments and instead focused on the procedural question about which court is the appropriate forum to decide the issue.

“The scope of the travel and refugee bans badly needs to be resolved and not just according to the Trump administration’s interpretation,” Chin said.

Hakim Ouansafi, president of the Muslim Association of Hawaii, said he respects Watson’s ruling but thinks there will be more opportunities to ensure the ban does not exclude grandparents and others close family members.

“We will have people directly affected by this, for sure,” Ouansafi said. “When you exclude that many people, the circle is much wider.”

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

Read the complete story at the link.

One problem when an appellate court emasculates the trial judge at a preliminary stage of the case is that the higher court then “owns” the case. But, in this particular situation, the Supremes are out to recess until Fall. So, the Trump Administration appears to have won this round because right now the plaintiffs realistically have no forum for their complaint. We can all sleep better knowing that we are protected from a few grandparents of U.S. citizens!

PWS

07-07-17

CHIEF JUSTICE JOHN ROBERTS OFFERS SAGE ADVICE TO THE NEXT GENERATION! — Who Knew The Chief Is A Bob Dylan Fan?

https://www.washingtonpost.com/politics/courts_law/the-best-thing-chief-justice-roberts-wrote-this-term-wasnt-a-supreme-court-opinion/2017/07/02/b80a5afa-5e6e-11e7-9fc6-c7ef4bc58d13_story.html?hpid=hp_regional-hp-cards_rhp-card-politics:homepage/card&utm_term=.e2bd08831f97

Robert Barnes reports in the Washington Post:

“It was the ninth-grade commencement address for the Cardigan Mountain School, an elite boarding school for boys grades six through nine. Sitting up front under a large white tent as John Glover Roberts Jr. took the stage was graduating student John Glover Roberts III.

. . . .

Roberts’s commencement address was not publicized in advance, but it was recorded by the school, uploaded to YouTube and is slowly gaining attention. Several readers emailed the link to me. One person wrote, “I’m a Democrat and I can’t stand the guy’s views, but I was in tears.”

There is nothing about the Supreme Court or the law in the short speech, although each graduating Cougar received an autographed, pocket-size Constitution along with his certificate.

Instead, the address was personal, understated and popular probably because it touched on universal themes, such as a parent’s worry about whether he or she is making the right decisions for their child.

Driving through the gates after leaving a student at Cardigan, Roberts said, parents travel a “trail of tears” to an “emptier and lonelier house.”

Roberts is considered one of the Supreme Court’s better writers, and his public addresses show a quick wit and professional timing. He first asked the Cardigan students to turn and applaud their parents and others who had guided them.

He joked that he would later be able to report that his speech was “interrupted by applause.”

Success, he reminded them, comes to those who are unafraid to fail. “And if you did fail, you got up and tried again. And if you failed again, you got up and tried again. And if you failed again — it might be time to think about doing something else.”

Roberts said commencement addresses customarily wish graduates success. He thought it better for them to experience challenges.

“From time to time in the years to come, I hope you will be treated unfairly,” Roberts said, “so that you will come to learn the value of justice.”

Betrayal “will teach you the importance of loyalty.” Loneliness will instruct people not to “take friends for granted.” Pain will cause someone “to learn compassion.”

“I wish you bad luck — again, from time to time — so that you will be conscious of the role of chance in life,” Roberts said. “And understand that your success is not completely deserved, and that the failure of others is not completely deserved, either.”

A commencement speech is supposed to offer “grand advice,” Roberts said, so his first was to recognize the exalted perch from which they started — a school with a 4-to-1 student-teacher ratio, where students dine in jackets and ties, and tuition and board cost about $55,000.

Through his son, Roberts had come to know many of the students, he said, and “I know you are good guys.”

“But you are also privileged young men, and if you weren’t privileged when you came here, you’re privileged now because you have been here,” Roberts said. “My advice is: Don’t act like it.”

He urged them, at their next school, to introduce themselves to the people “raking the leaves, shoveling the snow or emptying the trash.” Learn their names, smile and call them by name. “The worst thing that will happen is you will become known as the young man who smiles and says hello,” he said.

Another thing:

“You’ve been at a school with just boys. Most of you will be going to a school with girls,” Roberts said.

Long pause.

“I have no advice for you.”

In his speech, Roberts quoted Socrates and, not surprisingly, he ended it with the words of “the great American philosopher, Bob Dylan.”

Roberts has quoted Dylan in judicial opinions, and he’s not alone. The New York Times a few years ago noted a study that found Dylan the most-quoted songwriter in judicial opinions, and said Roberts had “opened the floodgates” by quoting the Bard of Minnesota in a 2008 dissent.

The song he quoted at the commencement speech was “Forever Young.” Roberts is an unusual parent. Now 62, he and Jane married rather late in life. Their contemporaries are welcoming grandchildren, while they have two high-schoolers, Jack and his sister Josephine.

“May you build a ladder to the stars

And climb on every rung

May you stay forever young.”

The wishes expressed by Dylan for his son, Jesse, are “beautiful, they’re timeless, they’re universal,” Roberts said.

But the phrase that gives the song its title and refrain — forever young — is unrealistic, the chief justice said. It can’t come true.

“That wish is a parent’s lament,” he said.”

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

Read the full report at the link.

I agree with some of the Chief Justice’s opinions, others not so much. Gosh, I have to wonder why all of his jurisprudence doesn’t show the same empathy, humor, understanding of the “underdog,” and acknowledgement of the role of privilege in our society (which is often mistaken for “pure merit” by the “privileged”) as demonstrated by this speech. Just look at the number of GOP politicians and even judges today who use their privileged positions to “dump on” the less fortunate rather than compassionately addressing their problems. At the same time, many of these same individuals use their their own privileged positions to further enrich the privileged and further empower the powerful at the expense of the rest of society. Go figure.

PWS

07-05-17

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts: