Expedited Removal is Not the Answer to the Backlog
With the immigration court backlog at over 600,000 cases and rising, immigration law commentator (and fellow BIA alum) Nolan Rappaport recently suggested that the present administration might view the increased use of expedited removal as “the only viable alternative” to shrink the swelling tide of cases. My fellow blogger Paul Schmidt has opposed such approach; I wish to join him in adding my arguments as to why the expansion of expedited removal would be unacceptable.
If the criminal court system were to be flooded to the breaking point, the solution could not be to let supervisory police officers decide which defendants might have a reasonable enough chance of being found innocent and get to go to court, and just find the rest guilty without the right to a trial. However, that is pretty much the premise of expedited removal. An overwhelming volume of cases cannot be used to justify the stripping away of due process protections.
Our immigration courts have evolved significantly over the decades. Deportation hearings were once conducted by “special inquiry officers,” who were attorneys working for the INS. Beginning in 1973, immigration judges began presiding over hearings. In 1983, those judges were separated from the INS into a separate adjudicatory agency, EOIR. In 2002, INS was moved into three components within the newly-created DHS, while EOIR remained in the Department of Justice. The strong motive behind these developments was that the agency charged with enforcement was not suited to serve as a neutral factfinder and decision maker. Increasing the scale of expedited removal would undo the above progress and return decision-making into the hands of the enforcement branch – the legal equivalent of having the fox guard the hen house.
Immigration judges render decisions independently, with no pressure or influence from their higher-ups. This is not true of asylum officers. I had one case years ago in which the asylum officer’s supervisor so adamantly opposed the grant of asylum that the officer had to wait until the supervisor went on vacation, and then had the acting supervisor sign off approving the grant. I have also heard of an asylum office director pressuring the staff to grant fewer cases in order to bring the office’s grant rate closer to the lower grant rate of another asylum office. Furthermore, to the extent that those seeking expedited removal are able to obtain counsel in the short time frame provided (and while detained, sometimes in remote settings), asylum officers allow attorneys a greatly reduced role in the process. In immigration court, the attorney makes legal arguments and objections, questions the respondent, and lays the foundation for documents to be offered into evidence. Even in full asylum office interviews, attorneys are relegated to sitting in the back row and taking notes. As the government’s own statistics show that represented asylum seekers are twice as likely to be granted relief, the asylum office’s minimizing of the attorney’s role clearly lessens the asylum seeker’s chance of success.
Expedited removal has really never worked well. In opposing its implementation in the mid-1990s, myself and other advocates argued that the legal threshold – the newly-created “credible fear” standard – was problematic. When the 1980 Refugee Act adopted the legal standard of “well-founded fear” for asylum claims, INS interpreted the term to mean “more likely than not;” it took seven years of litigation and a decision of the U.S. Supreme Court to correctly define the standard as requiring only a 10 percent chance of persecution. But expedited removal asked us to trust the same INS to properly interpret the vague new “credible fear” standard, and this time without the right to seek judicial review. Not surprisingly, so many mistakes were made after the standard was implemented that by mid-1997, the then INS director of asylum instructed asylum officers to simply find all applicants professing a fear of persecution to have met the credible fear standard. Those who claimed no fear in their countries were summarily removed; INS claimed that the majority of arrivees were in this latter group.
But where they really? A person arriving in this country only gets a credible fear interview if they indicate to the Customs and Border Patrol (CBP) officer who first encounters them that they fear return to their country. Two studies conducted over a decade apart by the U.S. Commission on International Religious Freedom, a government entity, found serious problems with the screening process of those arriving but not found admissible to the U.S. According to USCIRF, some arrivees were never asked whether they feared return; others who were asked and responded in the affirmative had “no” recorded in their statements, which were often not read back to them. The USCIRF report cited instances in which those wishing to seek asylum were pressured into signing inaccurate statements, or even into retracting their fear claims and withdrawing their applications for admission.
The answer to the immigration court backlog is clearly not to subject more people to the flawed and biased expedited removal system in lieu of removal hearings. To my knowledge, every other high volume court employs prosecutorial discretion and stipulated settlements to lessen the case load. Plea bargains are employed in everything from murder to traffic court cases. Under the Obama administration, prosecutorial discretion was employed in immigration court and significantly helped prosecutors and judges deal with the caseload. For unknown reasons, the present administration has ended this useful practice. DHS attorneys are also being instructed to oppose requests to terminate proceedings made by those wishing to leave the U.S. to attend immigrant visas abroad. These intending immigrants want to leave the country, and will only be allowed to return legally if they are found by a U.S. consular officer to be qualified and admissible to this country; under the prior administration, termination under these circumstances was readily agreed to by DHS. At the same time DHS is forcing so many immigrants to unnecessarily remain in removal proceedings, the agency will not put into proceedings those who want to be there in order to apply for certain types of relief that may only be granted by an immigration judge, such as cancellation of removal. Preventing immigrants from obtaining legal status to which they might be entitled seems suspiciously consistent with the present administration’s desire to stem the pace of naturalization in order to preserve the voting bloc that brought them to office last year.
Copyright 2017 Jeffrey S. Chase. All rights reserved.
Category: Immigration & Customs Enforcement (“ICE”)
DETENTION/BOND: THE “NEW DUE PROCESS ARMY” WINS A BIG ONE IN THE EDVA – Judge Brinkema Orders Individualized Bond Hearings For Four Individuals With “Reinstated” Removal Orders Now In “Withholding Only Proceedings!” — Romero v. Evans, ___ F. Supp. 3d ___, 2017 WL 5560659 (EDVA 11-17-17) (published)
Romero v. Evans, ___ F. Supp. 3d ___, 2017 WL 5560659 (EDVA 11-17-17) (published)
U.S. District Judge Leonie M. Brinkema
ATTORNEYS FOR RESPONDENTS: Ivan Yacub, Yacub Law Office, Woodbridge, VA, Nicholas Cooper Marritz, Legal Aid Justice Center, Falls Church, VA, Simon Yehuda Sandoval–Moshenberg, Simon Sandoval Moshenburg, Falls Church, VA, Rachel Colleen McFarland, Legal Aid Justice Center, Charlottesville, VA, Mark Alastair Stevens, Murray Osorio PLLC, Fairfax, VA, for Cristian Flores Romero, et al., Petitioners
KEY QUOTES (From Westlaw Version):
“Moreover, Congress clearly intended to have § 1231 govern only the final logistical period, in which the government has actual authority to remove the alien and need only schedule and execute the deportation. Congress has specifically limited the normal “removal period” to 90 days, a limitation that makes sense if the removal period is only meant to govern the final logistical steps of physically removing an alien. Based on the length of petitioners’ detentions to date, it is obvious that withholding-only proceedings take substantially longer than 90 days. As such, it would be contrary to congressional intent to shoehorn a class of aliens whose proceedings will typically far exceed 90 days into the “removal period” for which Congress has specifically intended a 90–day limit.”
. . . .
All told, this petition presents a difficult question of statutory interpretation. Although respondents’ arguments have some merit, petitioners’ position, which attempts to harmonize § 1226 and § 1231 by locating the dividing line between the two sections as the moment when the government has final legal authority to remove the alien, better accords with the text, structure, and intent of the relevant provisions. Accordingly, the Court concludes that petitioners are detained under § 1226(a), not § 1231, and therefore are entitled to individualized bond hearings. For the reasons stated above, respondents’ Motion to Dismiss in Part will be granted, petitioners’ Motion for Summary Judgment will be granted, and respondents’ Motion for Summary Judgment will be denied by an appropriate Order to be issued with this Memorandum Opinion.”
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Those with full Westlaw and/or PACER access can get Judge Brinkema’s full opinion at those sites.
There were quite a few of these “Withholding Only” cases on the Detained Docket when I was at the Arlington Immigration Court. I imagine there are even more now. So, this decision could have a major impact.
Judge Brinkema noted quite correctly that “withholding-only proceedings take substantially longer than 90 days.” In other words, “real due process” can’t be rolled off the “judicial assembly line” like it is in some Border Detention Courts where most of the respondents are unrepresented and many are essentially “duressed” by prolonged detention in poor conditions, intentional lack of access to legal assistance, and orchestrated inaccessibility of material evidence into giving up viable claims for protection under our laws.
Nice work by the NDPA “Legal Team!” I know each of the attorneys personally from their work in my courtroom, my classroom, or my “CLE outreach” since retirement. This just continues to demonstrate how “good lawyering” from “outstanding attorneys” can turn potential losers into “winners.”
That’s why the “Sessions Proposals” to “speed up” the U.S. Immigration Judges and put more roadblocks in the way of pro bono legal representation and full due process hearings are so invidious. We need an independent Article I Immigration Court fully committed to Constitutional Due Process! And, we need it now!
PWS
11-22-17
WALL? WHAT WALL? – BUREAUCRATIC BARRIERS BEST BAR TO (NEEDED) IMMIGRATION (Hey, I Could’ve Told ‘Em That!) – But, White Nationalist Goal Of Returning To A “White America” Ultimately Doomed — “You can slow the rate of Latino and Asian immigration, but it won’t make the population whiter,”. . . “It will just become less white at a slower pace.”
Maria Sacchetti and Nick Miroff report in the Washington Post:
“President Trump’s vision of a “big, beautiful” wall along the Mexican border may never be realized, and almost certainly not as a 2,000-mile physical structure spanning sea to sea.
But in a systematic and less visible way, his administration is following a blueprint to reduce the number of foreigners living in the United States — those who are undocumented and those here legally — and overhaul the U.S. immigration system for generations to come.
Across agencies and programs, federal officials are wielding executive authority to assemble a bureaucratic wall that could be more effective than any concrete and metal one. While some actions have drawn widespread attention, others have been put in place more quietly.
The administration has moved to slash the number of refugees, accelerate deportations and terminate the provisional residency of more than a million people, among other measures. On Monday, the Department of Homeland Security said nearly 60,000 Haitians allowed to stay in the United States after a devastating 2010 earthquake have until July 2019 to leave or obtain another form of legal status.
. . . .
Even as they fight court orders seeking to halt parts of Trump’s immigration agenda, Sessions, White House senior adviser Stephen Miller and other key players are finding ways to shrink the immigration system. Miller was an aide to Sessions before both men joined the administration; in less than a year, their immigration policy prescriptions have moved from the realm of think-tank wish lists to White House executive orders.
In October, the White House — in a plan led by Miller — said it had conducted a “bottom-up review of all immigration policies” and found “dangerous loopholes, outdated laws, and easily exploited vulnerabilities in our immigration system — current policies that are harming our country and our communities.”
. . . .
Trump’s tough talk alone appears to be one of the administration’s best bulwarks: Illegal crossings along the border with Mexico have plunged to their lowest level in 45 years, and U.S. agents are catching a far greater share of those attempting to sneak in. Applications for H-1B skilled visas and new foreign-student enrollment have also declined.
William Frey, a demographer at the Brookings Institution, said that until now U.S. immigration rates have largely spared the country from the challenges facing advanced industrial nations such as Japan and Germany that can’t replace aging workers fast enough. By slashing immigration, Frey said, the country could end up with labor shortages and other workforce issues.
But although some of Trump’s most fervent supporters see curbing immigration as a way to turn back the United States’ rapid racial and ethnic transformation, Frey said it is an unrealistic goal. By 2020, census projections show minorities will account for more than half of the under-18 U.S. population, because of higher birthrates in nonwhite populations. And by 2026, the number of whites is projected to begin declining in absolute numbers, he said, as deaths exceed births.
“You can slow the rate of Latino and Asian immigration, but it won’t make the population whiter,” Frey said. “It will just become less white at a slower pace.”
Trump continues to insist his administration will build a border wall, despite exorbitant cost projections and senior DHS officials saying a 2,000-mile structure is impractical. His supporters say they admire the president for plowing ahead in his overhaul efforts and see a historic, generational shift underway.
“There is more than one way to get to the goal,” Dane said. “Legislative solutions are all great, but clearly the administration has done things behind the scenes. . . . The results have been dramatic.”
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Read the full article at the link.
It’s no surprise that guys like Jeff “Gonzo Apocalypto” Sessions and his henchman Stephen Miller are leading this racist-inspired, xenophobic “race to the bottom” that if successful would likely tank our economy and cause even more inequality and social unrest as well as inflicting all sorts of unnecessary pain and suffering on long time residents, needed and productive workers, and the most vulnerable individuals seeking protection under U.S. and international laws. Really, hard to see how guys like this with retrograde ideas that come right from the “Jim Crow era” of American history get into positions of power for which they are so totally unqualified, both by background and temperament. But, then again, look at whom we have elected our President to represent us on the international scene.
The good news for the majority of Americans is that the “turn back the clock” plan is ultimately likely to fail. We will eventually move forward again as a diverse, productive, “country of immigrants,” and restore humane and humanitarian values to our national and international profile.
PWS
11-22-17
SLAM DUNKED AGAIN: SF FEDERAL JUDGE ORRICK ISSUES NATIONWIDE INJUNCTION AGAINST ADMINISTRATION’S ATTACK ON “SANCTUARY CITIES!”
http://www.chicagotribune.com/news/immigration/ct-trump-sanctuary-cities-funding-ruling-20171120-story.html
Sudhin Thanawala reports for the Associated Press in the Chicago Tribune:
“A federal judge on Monday permanently blocked President Donald Trump’s executive order to cut funding from cities that limit cooperation with U.S. immigration authorities.
U.S. District Court Judge William Orrick rejected the administration’s argument that the executive order applies only to a relatively small pot of money and said Trump cannot set new conditions on spending approved by Congress.
The judge had previously made the same arguments in a ruling that put a temporary hold on the executive order targeting so-called sanctuary cities. The Trump administration has appealed that decision to the 9th U.S. Circuit Court of Appeals.
“The District Court exceeded its authority today when it barred the President from instructing his cabinet members to enforce existing law,” Department of Justice spokesman Devin O’Malley said in a statement late Monday. “The Justice Department will vindicate the President’s lawful authority to direct the executive branch.”
Orrick’s ruling came in lawsuits brought by two California counties, San Francisco and Santa Clara.
San Francisco City Attorney Dennis Herrera said the ruling was “a victory for the American people and the rule of law.”
“President Trump might be able to tweet whatever comes to mind, but he can’t grant himself new authority because he feels like it,” he said in a statement.
A lawyer for the DOJ argued during a hearing before Orrick in April that the executive order applied to only a few grants that would affect less than $1 million for Santa Clara County and possibly no money for San Francisco.
Judge in Chicago refuses to change ruling on sanctuary cities
But the judge disagreed, saying in his rulings that the order was written broadly to “reach all federal grants” and potentially jeopardized hundreds of millions of dollars in funding to San Francisco and Santa Clara.He cited comments by the president and Attorney General Jeff Sessions as evidence that the order was intended to target a wide array of federal funding. And he said the president himself had called it a “weapon” to use against recalcitrant cities.
The Trump administration separately has also moved to withhold one particular law enforcement grant from sanctuary cities, prompting a new round of lawsuits that are pending.”
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WORTHY OF NOTE:
- Trump’s tweets and Sessions’s bombastic, anti-immigrant public agenda continue to haunt them in litigation.
- Continuing a recent trend, Judge Orrick basically found the DOJ’s legal position “not credible.”
- An Administration that (rather hollowly) claims to be interested in effective law enforcement refuses to work cooperatively with many major cities and threatens to withhold law enforcement funds.
- Clearly, this case is headed “up the line,” probably eventually to the Supremes.
PWS
11-21-17
A DECADE AFTER THE “GEORGETOWN 3” PUBLISHED “REFUGEE ROULETTE” THE PROBLEM OF GROSS DISPARITIES IN ASYLUM ADJUDICATION PERSIST – NEW TRAC STUDY!
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Transactional Records Access Clearinghouse
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FOR IMMEDIATE RELEASEGreetings. Very recent data from the Immigration Courts, current through September 2017, reveals that the outcome for asylum seekers continues to depend on the identity of the immigration judge assigned to hear the case. In the San Francisco as well as the Newark Immigration Courts, for example, the odds of being granted asylum during FY 2012 – FY 2017 ranged between a high of 90 percent down to a low of only 3 percent depending upon which immigration judge the asylum seeker was assigned.
The two courts with the largest number of asylum cases, New York and Los Angeles, also had sizable judge-to-judge differences in asylum outcomes. In the New York Immigration Court judge denial rates ranged from a low of 3.0 percent up to a high of 58.5 percent. The disparity in asylum denial rates among the judges on the Los Angeles court ranged from a low of 29.4 percent denied to a high of 97.5 percent.
Immigration judge-to-judge decision disparities have long existed and are well documented. Despite widespread concern about this problem, between 2010 and 2016 judge-to-judge decision disparities actually increased. This year’s report, updated through FY 2017, shows that disparity levels had become more extreme on both the Newark and San Francisco courts. Judge-to-judge differences for the Chicago Immigration Court also increased. The Los Angeles and San Diego courts saw modest improvement.
To view results for the complete list of courts see the full report at:
http://trac.syr.edu/immigration/reports/490/
To view a particular judge’s report, go to:
http://trac.syr.edu/immigration/reports/judgereports/
In addition, many of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through October 2017. For an index to the full list of TRAC’s immigration tools go to:
http://trac.syr.edu/imm/tools/
If you want to be sure to receive notifications whenever updated data become available, sign up at:
http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm
or follow us on Twitter @tracreports or like us on Facebook:
http://facebook.com/tracreports
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:
http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563———————————————————————————
The Transactional Records Access Clearinghouse is a nonpartisan joint research center of the Whitman School of Management (http://whitman.syr.edu) and the Newhouse School of Public Communications (http://newhouse.syr.edu) at Syracuse University. If you know someone who would like to sign up to receive occasional email announcements and press releases, they may go to http://trac.syr.edu and click on the E-mail Alerts link at the bottom of the page. If you do not wish to receive future email announcements and wish to be removed from our list, please send an email to trac@syr.edu with REMOVE as the subject.
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More than a decade ago, three universally respected “scholar litigators,” my good friends and Georgetown Law colleagues Professors Andy Schoenholtz, Phil Schrag, and Jaya Ramirez-Nogales (now at Temple Law) exposed this problem. While there have been some attempts to address it, and results actually appeared to be improving for a time, the problem persists.
Whatever the solution is, I’m sure of what it isn’t: running more cases through the Immigration Court System faster, hiring more Immigration Judges without giving them sufficient training, a weak Appellate Board that won’t speak up for the rights of asylum seekers, and putting “production quotas” on Immigration Judges.
“Haste makes waste” so-called “solutions” only make things worse. Promoting quality decision-making is a more nuanced and painstaking process.
I have no doubt that this system still denies asylum and other forms of legal protection in far too many cases. A more realistic and appropriately generous approach to asylum would force the DHS to grant more of these cases at the Asylum Office and would shorten hearing times for certain types of “clearly grantable” cases.
PWS
11-20-17
GONZO’S WORLD: Sessions Gives Congress The “Scarface Treatment” Again — Then He Jokes About Russia — Will Mueller Eventually Wipe The Smirk Off Gonzo’s Face?
http://nymag.com/daily/intelligencer/2017/11/jeff-sessions-has-a-strangely-selective-memory.html
Eric Levitz writes in NY Maggie:
“Jeff Sessions’s memory works in mysterious ways. He has “no clear recollection” of the March 2016 meeting where George Papadopoulos offered to set up a meeting between Donald Trump and Vladimir Putin — but the attorney general does remember shooting down the campaign aide’s unseemly suggestion.
Or, so Sessions tells the House Judiciary Committee.
In October, Sessions testified to the Senate that he did not have any “continuing exchange of information” with Russian operatives — and that he wasn’t “aware of anyone else [on the Trump campaign] that did.” Weeks later, Special Counsel Robert Mueller revealed
“Papadopoulos’s confession to the crime of lying to the FBI. In that written statement, the former Trump campaign national security adviser claimed that he had told Sessions about “connections” he had that “could help arrange a meeting between then-candidate Trump and President Putin” in March of last year. In his testimony before Congress Tuesday, Sessions tried to account for this apparent discrepancy.
“I do now recall the March 2016 meeting at Trump Hotel that Mr. Papadopoulos attended, but I have no clear recollection of the details of what he said at that meeting,” Sessions explained. “After reading his account, and to the best of my recollection, I believe that I wanted to make clear to him that he was not authorized to represent the campaign with the Russian government, or any other foreign government, for that matter.”
Later, Sessions said more firmly, “At the meeting, I pushed back.”
So, the attorney general has no clear memory of the meeting, but has a vivid recollection of behaving admirably during it.
This isn’t the first time that Sessions’s memories of last year have failed him. In January, the attorney general testified to the Senate that he had not “been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day.” Months later, the Washington Post revealed that Sessions had met with the Russian ambassador to the United States multiple times during the 2016 campaign. Sessions responded to these revelations by insisting that he’d met with Ambassador Sergey Kislyak in his capacity as U.S. senator (not as a Trump surrogate), and that they did not discuss the 2016 election. Sessions later conceded that it was “possible” that Trump’s positions on U.S.-Russia relations came up in his discussions with Kislyak.
Some Democrats have suggested that Sessions’s multiple false statements to Congress this year were conscious lies. The former senator responded to such charges with indignation Tuesday.
“My answers have not changed,” Sessions said. “I have always told the truth, and I have answered every question as I understood them and to the best of my recollection, as I will continue to do today … I will not accept and reject accusations that I have ever lied under oath. That is a lie.”
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Meanwhile, speaking to a friendly audience over at the Heritage Foundation, Gonzo treated the Russia investigation as a joke. Mary Papenfuss reports for HuffPost:
“Attorney General Jeff Sessions had lawyers rolling in the aisles with a surprising string of Russian quips at the start of a speech he gave Friday.
Sessions was the keynote speaker at the National Lawyers Convention at Washington’s Mayflower Hotel hosted by the conservative Federalist Society.
He thanked the applauding crowd for welcoming him. Then, smiling mischievously, he added: “But I just was thinking, you know, I should ― I want to ask you. Is Ambassador Kislyak in the room? Before I get started ― any Russians?” As the laughs grew louder, he continued: “Anybody been to Russia? Got a cousin in Russia?” The audience roared.
The jarring jokes came just three days after Sessions was pressed in Congress on apparent discrepancies in his previous testimony about Trump associates’ meetings with Russians during the 2016 campaign.
Sergey Kislyak, then Russia’s ambassador to the U.S., met with several members of Donald Trump’s campaign during the Republican National Convention, Kislyak and some Trump associates have revealed. Kislyak was widely believed a top spy recruiter.
Kislyak has said he discussed Trump’s policy positions during the campaign with Sessions, an early Trump supporter who was an Alabama senator at the time, The Washington Post reported.
But during his confirmation hearings to become attorney general ― before the Post report ― Sessions said he “never met with or had any conversations with any Russians or any foreign officials concerning any type of interference with any campaign or election.”
Sessions later recused himself from Special Counsel Robert Mueller’s probe into Russian interference in the U.S. election.
Critics were stunned by Sessions’ attitude in the lawyers’ speech.
Sessions “still doesn’t get it” — he’s “in trouble,” Rep. Ted Lieu (D-Calif.) told Wolf Blitzer later on CNN.
“He’s not in trouble where he happened to be in places where there are Russians,” said Lieu, a member of the House Judiciary Committee who grilled Sessions this week. “He is in trouble because he had a nearly hour-long meeting with Ambassador Kislyak — also a spy — and then he failed to disclose the existence of that meeting under oath to the U.S. Senate. That’s why Jeff Sessions is in trouble.”
Blitzer noted that Kislyak “now says he spoke with so many Trump officials it would take him more than 20 minutes to name them all.”
https://www.huffingtonpost.com/entry/sessions-russian-lawyers_us_5a0fb5dee4b045cf43718e96?ncid=APPLENEWS00001
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PWS
11-19-17
BIA SAYS CATEGORICAL APPROACH INAPPLICABLE TO VIOLATION OF A PROTECTIVE ORDER — MATTER OF OBSHATKO, 27 I&N Dec. 173 (BIA 2017)
Matter of OBSHATKO, 27 I&N Dec. 173 (BIA 2017)
BIA HEADNOTE:
“Whether a violation of a protection order renders an alien removable under section 237(a)(2)(E)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(ii) (2012), is not governed by the categorical approach, even if a conviction underlies the charge; instead, an Immigration Judge should consider the probative and reliable evidence regarding what a State court has determined about the alien’s violation. Matter of Strydom, 25 I&N Dec. 507 (BIA 2011), clarified.”
PANEL: BIA APPELLATE IMMIGRATION JUDGES PAULEY, MALPHRUS, GREER
OPINION BY: JUDGE PAULEY
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COMMON THREAD: The Respondent loses, even though he prevailed before the Immigration Judge.
PWS
11-18-17
ASYLUM: LAW YOU CAN USE: All-Star Professor Michele Pistone Of Villanova Law Writes & Directs “Must See TV” — “Best Practices in Representing Asylum Seekers”
Go on over to Dan Kowalski’s LexisNexis Immigration Community here for all the links to the 19-part series on You Tube made possible by the American Law Institute with an introduction by none other than Justice Sandra Day O’Connor:
Thanks, Michele, for all you do for the cause of Due Process for migrants and better Immigration Court practices!
PWS
11-17-17
THE HILL: N. RAPPAPORT SAYS THAT EXPEDITED REMOVAL IS THE ANSWER TO IMMIGRATION COURT BACKLOGS – I DISAGREE!
Nolan writes:
“Trump has acknowledged that the immigration court’s enormous backlog cripples his ability to remove illegal immigrants in a timely manner, but his plan to deal with the backlog isn’t going to work.
This chart from the Executive Office for Immigration Review’s (EOIR) FY2016 Statistics Yearbook shows that the immigration judges (IJs) have not been making any progress on reducing the backlog.
At a recent Center for Immigration Studies panel discussion on the backlog, Judge Larry Burman said, “I cannot give you a merits hearing on my docket unless I take another case off. My docket is full through 2020, and I was instructed by my assistant chief immigration judge not to set any cases past 2020.”
By the end of September 2016, the backlog was up to 516,031 cases. A year later, it had grown to 629,051.
. . . .
If Trump relies on hiring more IJs to deal with the backlog crisis, his enforcement program will be a dismal failure.
His only viable alternative is to reduce the size of the immigration court’s docket, which he can do by promulgating regulations making IJ hearings unavailable to aliens whose cases can be handled in expedited removal proceedings.
He seems to have had this in mind when he directed DHS to use expedited removal proceedings to the full extent authorized by law, which would include most of the undocumented aliens in the United States who were not lawfully admitted, unless they can establish that they have been here for two years.
In expedited removal proceedings, which are conducted by immigration officers, aliens can be deported without IJ hearings unless they have a credible fear of persecution. If they establish a credible fear of persecution, they are entitled to an asylum hearing before an IJ.
But would the courts stop him?”
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Go on over to The Hill at the link to read Nolan’s complete article.
Expedited removal is the wrong solution to the Immigration Court backlog!
- As I have noted in recent blogs, recent studies show that Immigration Court hearings area already falling substantially short of providing real due process because of lack of available counsel and overuse of immigration detention. Expedited removal would aggravate that problem tenfold.
- Expedited removal couldn’t begin to solve the current backlog problems because the vast majority of the estimated 11 million individuals already here have been here for more than two years and can prove it, most from Government records. Indeed, I’d wager that the vast majority of individuals in Removal Proceedings in U.S. Immigration Court have had their cases pending for two or more years.
- The problems in Immigration Court were caused by “Aimless Docket Reshuffling” by the last three Administrations emanating from undue political influence from the Department of Justice, DHS, and the White House. Only an independent Immigration Court that places control of the dockets in individual Immigration Judges, where it belongs, can address those problems.
- The answer to hiring problems resulting from poor management and political hiring from the DOJ is certainly not to “get rid of” any existing U.S. Immigration Judges. Whether the hiring was done properly or not, there is no reason to believe that any of the currently sitting local U.S. Immigration Judges did anything wrong or participated in the hiring process other than by applying for the jobs. The system needs all the experienced judges it currently has.
- The problem of inconsistency will only be solved by having an independent BIA that acts in the manner of an independent appellate court, cracking down on those judges who are not correctly applying legal standards. That’s how all other court systems address consistency issues — through precedent and independent appellate review. Numerous examples have been documented of Immigration Judges in courts like Atlanta, Stewart, and Charlotte, to name three of the most notorious ones, improperly denying asylum claims and mistreating asylum applicants. The BIA has failed to function in a proper, independent manner ever since the “Ashcroft Purge.” The only way to get it doing its job is by creating true judicial independence.
- “Haste makes waste” is never the right solution! It’s been done in the past and each time has resulted in increased backlogs and, more importantly, serious lapses in due process.
- The docket does need to be trimmed. The Obama Administration was at least starting the process by a more widespread use of prosecutorial discretion or “PD” as in all other major law enforcement prosecutorial offices. Most of the individuals currently in the country without status are assets to the country, who have built up substantial equities, and do not belong in removal proceedings. No system can function with the type of unregulated, irrational, “gonzo” enforcement this Administration is pursuing.
- The reasonable solution is to do what is necessary to build a well-functioning system that provides due process efficiently, as it is supposed to do. The elements are reasonable access to lawyers for everyone in proceedings, reducing expensive, wasteful, and fundamentally unfair use of detention, better merit hiring and training procedures for Immigration Judges, modern technology, better use of prosecutorial discretion by the DHS, legislation to grant legal status to law-abiding productive individuals currently present in the US without status, and a truly independent judicial system that can develop in the way judicial systems are supposed to — without political meddling and without more “haste makes waste” schemes like “expedited removal!”
PWS
11-14-17
JOE PATRICE @ ABOVE THE LAW: WE NOW HAVE “SCIENTIFIC PROOF” THAT IMMIGRATION LAWYERS ARE “INCREDIBLY USEFUL” — IN FACT, THEY ARE ESSENTIAL TO DUE PROCESS — So, Why Are Sessions & His Minions Smearing Lawyers & Trying To Railroad More Migrants Through The System Without Fair Hearings?
https://abovethelaw.com/2017/11/we-have-scientific-proof-that-lawyers-are-incredibly-useful/
Patrice writes:
“So instead of fighting whether or not the feds can order cops to bust up the local Motel 6, cities can just hire some lawyers.
This is the lie of every talking head that praises building a wall but adds, with all faux sincerity, that they have “no problem with legal immigrants.” Almost half of the people shuttled through assembly line deportation hearings actually fit within legal immigration protections, but the complexity of the system — not to mention language barriers — make them victims of the bureaucracy.
If that projection is correct, NYIFUP cases result in immigrant victories 48 percent of the time. As Oren Root, director of the Vera Institute’s Center for Immigration and Justice, puts it, that means that of every 12 immigrants who are winning at Varick Street right now, 11 would have been deported without a lawyer.
That finding challenges a widely held assumption about immigration court: that most immigrants who go through it don’t qualify for the types of protection that Congress has laid out for particularly compelling cases. The Vera finding implies that, in fact, many immigrants do deserve relief as Congress and the executive branch have established it — but that hundreds of thousands of them have been deported without getting the chance to pursue those claims.
New York’s program has inspired 12 more cities to adopt the program. It’s put up or shut up time for the Department of Justice — if they’re really committed to proving some undocumented migrant is in violation of the law, then stand up and make that case in court.
Against a real attorney.
Unless they’re chicken.”
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Read the complete article at the link. I have previously reported on the VOX News Article and the Vera study.
I think Patrice has hit the nail on the head. Sessions, Miller, Bannon and the White Nationalist crowd are biased bullies picking on the most vulnerable and disadvantaged. Like all bullies, they have absolutely no desire to compete fairly on a level playing field.
The Vera report confirms what many of us involved in the field have been saying for years: a significant portion of those going through Immigration Court, probably 50% or more are entitled to be in the US. Without lawyers, such individuals have little or no chance of making and succeeding on claims that would allow them to stay. Since at least one-third of individuals (and a much higher percentage of detained individuals) are unrepresented, we are unlawfully removing tens of thousands of individuals each year, in violation of due process. And nothing aggravates this unfairness more than unnecessary detention (in other words, the majority of immigration detention which involves individuals who are not criminals, security threats, or threats to abscond if they are represented and understand the system).
A competent and conscientious Attoyney General would work cooperatively with private bar groups, NGOs, and localities to solve the representation crisis and drastically reduce the use of expensive and inhumane immigration detention. But, Sessions is moving in exactly the opposite direction, in violation of constitutional principles of due process, practical efficiency, and basic human decency.
PWS
11-13-17
LA TIMES: MAJORITY OF CALIFORNIANS VALUE MIGRANTS (REGARDLESS OF STATUS) — OPPOSE TRUMP ADMINISTRATION’S “GONZO” IMMIGRATION ENFORCEMENT!
Jasmine Ulloa reports for the LA Times:
“Despite the Trump administration’s repeated attempts to frame illegal immigration as a threat to public safety, the poll also found an overwhelming majority believe that people without legal residency help revitalize cities as opposed to increasing crime.
The survey results, poll analysts and policy experts said, reflect ongoing trends in California, where through the decades the public has tended to support immigrants in the country illegally, even when federal or state political leaders have stoked anti-immigrant sentiment to rally their bases.
“We have seen this in California forever,” said Jill Darling, the survey director for the Center for Economic and Social Research at USC. “People, including Republicans, have been more supportive of immigrants and reform, even to the point of supporting a path to citizenship, more so than Republican leadership.”
Most poll participants also expressed positive perceptions of people without legal residency in the country.
Nearly 63% of people surveyed said they believed immigrants without legal status strengthened the economy, as opposed to roughly 38% who said they took away jobs. Sixty-six percent said immigrants in the country illegally helped revitalize cities, and about 34% — including more than 72% of Republicans — believed they increased crime.
Policy experts said the poll results reflect the explosive growth of Latinos, Asians and other minority communities that tend to lean Democratic. California’s families are so diverse, they said, that nearly everyone knows someone who came to the country as an immigrant — legally or illegally.
It also reflects a shift away from the “us-versus-them” rhetoric that damaged the Republican brand in the 1990s, political consultants and immigration policy experts said. During that time, Gov. Pete Wilson was criticized for using footage of people running across the border to dramatize the problem of illegal immigration, and voters passed propositions to bar immigrants in the country illegally from public benefits, outlaw affirmative action programs and teach only English in schools.
That “no longer reflects our reality,” said Mindy Romero, director of the California Civic Engagement Project. “In a state like California, immigrants are us.”
Andrew Medina, state policy manager for Asian Americans Advancing Justice, said he wasn’t surprised by the results of the poll — or by the approval among California residents for the sanctuary state law. A study released in February by the Public Policy Institute of California found that a solid majority of Californians believe the state and local governments should make their own policies and take action to protect the rights of immigrants who are here illegally.
The final language of the sanctuary state law was the result of months of tough negotiations among Gov. Jerry Brown, Senate leader and bill author Kevin de León (D-Los Angeles), and law enforcement officials.
It will largely prohibit state and local law enforcement agencies from holding or sharing information about people with federal immigration agents unless those individuals have been convicted of one or more offenses from a list of 800 crimes outlined in a 2013 state law.
Federal immigration authorities still will be able to work with state corrections officials — a key concession Brown had demanded — and will be able to enter county jails to question immigrants. But the state attorney general’s office will be required to publish guidelines and training recommendations to limit immigration agents’ access to personal information.
“It is positive that these polls show that there is support for immigrant communities, and it is especially positive in this era,” Medina said.
Still, Romero advised caution.
“Discrimination against immigrants is very real and a danger,” she said, pointing to anti-immigrant rhetoric at the national level. “I think we can’t rest on a changing landscape in California and just assume that things will continue to be more receptive and open.”
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Read the complete article at the link.
The Trump-Sessions-Miller-Bannon bogus White Nationalist program of portraying bigotry and racism as “law enforcement” ultimately will fail. Truth will win out. But, that doesn’t mean that lots of damage won’t be inflicted along the way by restrictionists on vulnerable individuals, their defenders, our society, our economy, and our international leadership and reputation.
Resist the false messages with truth! Support truth with action!
PWS
11-12-17
ROGUE U.S. IMMIGRATION JUDGE IN CHARLOTTE, NC? — BIA TWICE ORDERS JUDGE TO FOLLOW PRECEDENT & GIVE DUE PROCESS TO ASYLUM SEEKER!
Dan Kowalski reports at LexisNexis Immigration Community (quoting Respondent’s attorney Humza Kuzma):
“We appealed to the BIA, stating that the IJ was ignoring the law of the case and his direct instructions from a higher court. As Hassan noted in his FB post, we included redacted cases from a FOIA request another attorney had conducted, showing the various instances in the past two years where the IJ had been remanded in asylum proceedings. Yesterday, we got the remand, which reconfirmed that the prior rulings in the case were vacated and relying upon them was in judicial error, and instructed the IJ to grant our client a completely new hearing with an open record, and issue a new decision.”
BIA PANEL: Appellate Immigration Judges Guendelsberger, Kendall Clark, Grant
OPINION BY: Judge Edward R. Grant
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Read the full report and the BIA’s unpublished opinion at the link.
- Why wasn’t this decision published?
- Why wasn’t this Immigration Judge who is showing contempt for the BIA, precedent, asylum seekers, and Due Process named in the decision (a technique used by Article III Courts to deal with recalcitrant Judges)?
- Why wasn’t this case remanded to a different Immigration Judge?
- Why don’t we see more precedent decisions from appellate panels like this one which appears committed to a fair application of asylum law and reigning in rogue judges like this one?
- How would an unrepresented individual ever be able to vindicate his or her statutory and constitutional rights before a biased and abusive judge like this?
- What can be done to improve merit selection procedures for U.S. Immigration Judges so that individuals who are biased against migrants, unwilling comply with orders of higher tribunals, and uncommitted to Due Process will no longer be placed in judicial positions?
PWS
11-11-17
LPR CANCELLATION: Split 9th Follows 5th — Holds That “Admission In Any Status” Includes Unlawful Status — Saldivar v. Sessions!
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/07/13-72643.pdf
Saldivar v. Sessions, 9th Cir., 11-07-17, published
PANEL: Stephen Reinhardt, Alex Kozinski, and Kim McLane Wardlaw, Circuit Judges.
OPINION BY: Judge Reinhardt
DISSENT: Judge Kozinski
KEY QUOTE:
“The structure of § 1229b thus confirms what was already unambiguously clear from the plain meaning of the text: the statute requires continuous presence for seven years after a procedurally lawful admission in any immigration status, lawful or unlawful.8 Perhaps, had Congress required admission “in any status whatsoever” in § 1229b(a)(2), the government might have acknowledged that unlawful status was covered by the phrase it now finds ambiguous. However, as we have explained, the term “any,” in its plain meaning, is all-inclusive and any further language would be pure surplusage. In short, any is any, and a status is a status, be it lawful or unlawful.”
JUDGE KOZINSKI, DISSENTING, WAS UNIMPRESSED:
“My colleagues misread the INA, trample our precedent and turn their backs on Chevron, all to create a giant loophole that will enable thousands to lie their way to relief that Congress never intended them to have. The Fifth Circuit got it wrong and the Ninth now follows them down the rabbit hole. It’s time for another opinion.”
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Read the complete opinion at the link.
The 9th Circuit majority declines to give the “Chevron deference” to the BIA precedent Matter of Blancas- Lara, 23 I. & N. Dec. 458, 460 (BIA 2002) by finding the statute “unambiguous.” So far, no “Circuit split.”
Undoubtedly, migrants without visas arriving at the border have lots of reasons to lie or otherwise misrepresent. However, with due deference to Judge Kozinski, it seems highly unlikely that the off-chance of applying for discretionary relief 10 years in the future would be one of them.
I find it interesting that it has taken 15 years since the BIA’s decision in Blancas-Lara for the Article IIIs to come to grips with the issue.
PWS
11-11-17
REAL DUE PROCESS MAKES A STUNNING DIFFERENCE! – NY PROJECT FINDS THAT REPRESENTED IMMIGRANTS ARE 12X MORE LIKELY TO WIN CASES!
https://www.vox.com/policy-and-politics/2017/11/9/16623906/immigration-court-lawyer
Dara Lind reports for VOX
“Omar Siagha has been in the US for 52 years. He’s a legal permanent resident with three children. He’d never been to prison, he says, before he was taken into Immigration and Customs Enforcement detention — faced with the loss of his green card for a misdemeanor.
His brother tried to seek out lawyers who could help Siagha, but all they offered, in his words, were “high numbers and no hope” — no guarantee, in other words, that they’d be able to get him out of detention for all the money they were charging.
Then he met lawyers from Brooklyn Defender Services — part of the New York Immigrant Family Unity Project, an effort to guarantee legal representation for detained immigrants. They demanded only one thing of him, he recalls: “Omar, you’ve got to tell us the truth.”
But Siagha’s access to a lawyer in immigration court is the exception.
There’s no right to counsel in immigration court, which is part of the executive branch rather than the judiciary. Often, an immigrant’s only shot at legal assistance before they’re marched in front of a judge is the pro bono or legal aid clinic that happens to have attorneys at that courthouse. Those clinics have such limited resources that they try to select only the cases they think have the best shot of winning — which can be extremely difficult to ascertain in a 15-minute interview.
But advocates and local governments are trying to make cases like Siagha’s the rule, not the exception. Soon, every eligible immigrant who gets detained in one of a dozen cities — including New York, Chicago, Oakland, California, and Atlanta — will have access to a lawyer to help fight their immigration court case.
The change started at Varick Street. The New York Immigrant Family Unity Project started in New York City in 2013, guaranteeing access to counsel for detained immigrants.
According to a study released Thursday by the Vera Institute for Justice (which is now helping fund the representation efforts in the other cities, under the auspices of the Safe Cities Network), the results were stunning. With guaranteed legal representation, up to 12 times as many immigrants have been able to win their cases: either able to get legal relief from deportation or at least able to persuade ICE to drop the attempt to deport them this time.
So far, cities have been trying to protect their immigrant populations through inaction — refusing to help with certain federal requests. Giving immigrants lawyers, on the other hand, seemingly makes the system work better. And if it works, it could leave the Trump administration — which is already upset with the amount of time it takes to resolve an immigration court case — very frustrated indeed. (The Department of Justice, which runs immigration courts, didn’t respond to a request for comment.)
Immigration court is supposed to give immigrants a chance for relief. In reality … it depends.
As federal immigration enforcement has ramped up over the past 15 years, nearly every component of it has gotten a sleek bureaucratic upgrade, a boatload of money, and heightened interest and oversight from Congress. But immigration court has been overlooked as everything else has been built up around it.
The reason is simple. Chronologically, most immigrants have to go through immigration court after being apprehended and before being deported. But bureaucratically, immigration courts are run by the Executive Office for Immigration Review, housed in the Justice Department instead of by the Department of Homeland Security. And when it comes to money and bureaucratic attention, that makes all the difference in the world.
From the outside, the striking thing about immigration court is how slow it is — lawyers already report that hearings for those apprehended today are scheduled in 2021. That’s also the Trump administration’s problem with it; the federal government is sweeping up more immigrants than it did in 2016 but deporting fewer of them.
But it doesn’t seem that way from the inside, to an immigrant who doesn’t have any idea what’s going on — especially one who’s being kept in detention.
This is the scene that Peter Markowitz accustomed himself to, as a young immigration lawyer at the Varick Street courtroom in New York: “People brought in, in shackles, with their feet and hands shackled to their waist, often not understanding the language of the proceedings, having no idea of the legal norms that were controlling their fate — being deported hand over fist.”
I know he’s not exaggerating; in my first morning watching immigration court proceedings in Minneapolis in 2008, I saw at least 10 detainees get issued deportation orders before lunch. Almost none had lawyers. Sometimes the judge would pause and explain to the detainee, in plain English, what was really going on — but she didn’t have to, and sometimes she wouldn’t bother.”
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Read Dara’s full article at the link.
No lawyer = no due process. Rather than trying to hustle folks out of the country without a full and effective chance for them to be heard — in other words, true Due Process — Jeff Sessions should be changing the Immigration Court system to put less reliance on detention and detention center “kangaroo courts” and more emphasis on insuring that each individual scheduled for a hearing has fair and reasonable access to competent counsel.
I totally agree that due process can’t be put on a “timetable,” as Sessions and his crew at the DOJ seem to want. As observed by none other than Chief Justice John Roberts — certainly no “bleeding heart liberal” —“It takes time to decide a case on appeal. Sometimes a little; sometimes a lot.” Nken v. Holder, 556 U.s. 418 (2009). That’s even more true on the trial level.
I have a somewhat different take on whether representation and providing full due process will ultimately slow down the system. In the short run, represented cases might take longer than unrepresented ones (although I personally found that not invariably true). However, as noted by Chief Judge Katzmann, lack of representation both promotes wrong, and therefore unfair, results, but also inhibits the proper development of the law. (Perhaps not incidentally, I note that Chief Judge Katzmann actually took time to attend and participate in Annual Immigration Judge Training Conferences back in the day when the “powers that be” at DOJ and EOIR deemed such training to be a necessary ingredient of a fair judicial system — something that was eliminated by Sessions’s DOJ this year. Apparently, new, untrained Immigration Judges can be expected to “crank out” more final orders of removal than trained judges.)
When I was in Arlington, the vast majority of the non-detained respondents were represented, and the majority of those got some sort of relief — in other words, won their cases to some extent. As time went on, this development required the DHS to adjust its position and to stop “fully litigating” issues that experience and the law told them they were going to lose.
That, in turn, led to more efficient and focused hearings as well as decisions to drop certain types of cases as an exercise of prosecutorial discretion. Had that process been allowed to continue, rather than being artificially arrested by the Trump regime, it could well have eventually led to more efficient use of docket time and alternate means of disposing of cases that were “likely losers” or of no particular enforcement value to the DHS or the country at large.
By contrast, “haste makes waste” attempts to force cases through the system without representation or otherwise in violation of Due Process often led to appellate reversals, “do-overs,” and re-openings, all of which were less efficient for the system than “doing it right in the first place” would have been!
In my view (echoed at least to some extent by my colleague retired Judge Jeffrey Chase), more conscientious publication of BIA precedents granting asylum could and should have taken large blocks of asylum cases off the “full merits” dockets of Immigration Judges — either by allowing them to be “short docketed” with the use of stipulations or allowing them to be favorably disposed of by the DHS Asylum Offices.
No system that I’m aware of can fully litigate every single possible law violation. Indeed, our entire criminal justice system works overwhelmingly from “plea bargaining” that often bears little if any resemblance to “what actually happened.” Plea bargaining is a practical response that reflects the reality of our justice system and the inherent limitations on judicial time. And effective plea bargaining requires lawyers on both sides as well as appropriate law development as guidance that can only happen when parties are represented. The absurd claim of Sessions and the DHS that the law allows them no discretion as to whether or not to bring certain categories of removal cases is just that — absurd and in direct contradiction of the rest of the U.S. justice system.
The current policies of the DHS and the DOJ, which work against Due Process, rather than seeking to take advantage of and actively promote it, are ultimately doomed to failure. The only question is how much of a mess, how many wasted resources, and how much pain and unfairness they will create in the process of failing.
Andrea Saenz, mentioned in the article is a former Judicial Law clerk at the New York Immigration Court. I have always admired her clear, concise, “accessible” legal writing — much like that of Judge Jeffrey Chase — and have told her so.
I am also proud that a number of attorneys involved in the “New York Project” and the Brooklyn Defenders are alums of the Arlington Immigration Court or my Georgetown Law RLP class — in other words, charter members of the “New Due Process Army!” They are literally changing our system, one case and one individual life at a time. And, they and their successors will still be at it long after guys like Jeff Sessions and his restrictionist cronies and their legally and morally bankrupt philosophies have faded from the scene.
Thanks to my friend the amazing Professor Alberto Benítez from the GW Law Immigration Clinic for sending me this item!
PWS
11-10-17
KELLY TRIED TO BULLY ACTING DHS DIRECTOR ELAINE DUKE INTO TERMINATING TPS FOR HONDURANS – SHE WOULD HAVE NONE OF IT!
http://www.cnn.com/2017/11/09/politics/elaine-duke-hondurous-immigrants/index.html
“By: Tal Kopan, Abby Phillip and Miranda Green, CNN
White House chief of staff John Kelly pressured acting Homeland Security Secretary Elaine Duke to terminate protections for tens of thousands of Honduran immigrants currently living in the US, sources tell CNN.
Duke received multiple calls from Kelly pressuring her, in Duke’s perception, to end Temporary Protected Status for Honduran immigrants on Monday’s decision day, leaving Duke “distraught and disappointed” and ready to leave the department, according to a source familiar with Duke’s thinking.
The Trump administration characterized the call as Kelly weighing in through a normal process and said Duke was committed to remaining at her post.
The Washington Post first reported on the call.
TPS is an immigration status allowed by law for certain countries experiencing dire conditions, such as a natural disaster, epidemic or war, and protects individuals from deportation and authorizes them to work in the US.
Monday was the deadline for a decision on the protected status for the roughly 86,000 Hondurans. DHS instead announced that Duke had not found there was enough information to make a formal decision, a move that triggered a six-month extension of the protected status. The administration did terminate protections for Nicaraguans, about 5,300 of which live in the US. Both populations have lived in the US for nearly two decades.
According to the source familiar with Duke’s thinking, Kelly and the administration wanted Homeland Security secretary nominee Kirstjen Nielsen to avoid questions about the issue at her Senate confirmation hearing on Wednesday, and wanted to her confirmed quickly enough that she would be the one to make a decision on temporary protected status for Haitians, which is due at the end of the month and which will likely be ended.
According to the source familiar, Duke had decided over the weekend that she did not have enough information to end the protections for the Hondurans, which is what the department announced late Monday evening.
“I think she’s very distraught and disappointed at Kelly and the whole apparatus,” the source said. “She’s out there alone, you know? It’s like, ‘Why do I keep doing this if you guys are just going to beat me up?'”
The source confirmed that she made reference to resigning during the back-and-forth and is inclined to leave the job.
The source described the back-and-forth as a “forceful, directive conversation.”
“It was a loud conversation, it wasn’t a quiet conversation,” the source said.”
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Read the rest of the story from Tal & Co at the link. No wonder Gonzo’s DOJ is trying (unethically) to “retaliate” against CNN by abusing the anti-trust laws! Very “Third World” — a perfect term to describe the Trump Administration — corruptly using government power to reward cronies, intimidate the public, and punish opposition. Those of us who have had to deal with Third World dictatorships and kleptocracies and their carnage for decades know the characteristics all too well.
So, long time Honduran residents of the US (and their families, employers, employees, colleagues, friends, and neighbors) owe their “six month reprieve” from insane chaos totally to one career Senior Executive with the backbone and integrity (a word seldom heard in connection with the Trump Administration) to stand up to the “Trump Mafia.” Cheers for Elaine Duke!
Kelly sinks deeper into “The Swamp” every day with each new revelation of his sleazy conduct and reactionary views. I suspect that Duke’s DHS career will come to an end shortly. And, there is some reason to suspect that her permanent replacement, Kirstjen Nielsen, is being put over at DHS to be a “yes-woman” for the Trump, Sessions, Kelly, Miller, Bannon (in absentia) White Nationalist crew operating out of the White House and the DOJ. Whether she will live up to their “low expectations,” however, is another matter entirely.
PWS
11-10-17