⚖️ SUPREMES TOSS GOP AGS’ EFFORTS TO OVERRULE IMMIGRATION POLICIES, ON STANDING GROUNDS — U.S. v. Texas  — A Look Back At Prosecutorial Discretion (“PD”) Over Five Decades — GOP’s Nativist “Open Borders BS” Continues To Dominate Political Debate! 🤯🏴‍☠️

Jhttps://www.politico.com/news/2023/06/23/supreme-court-states-cant-sue-over-bidens-immigration-policies-00103417

Josh Gerstein
Josh Gerstein
White House Reporter
Politico

Josh Gerstein reports for Politico:

States can’t use the federal courts to try to force the federal government to arrest and deport more people who are in the country illegally, the Supreme Court ruled Friday.

The 8-1 decision could cut down on a flood of lawsuits recent administrations have faced from state attorneys general and governors who disagree with Washington on immigration and crime policy.

The high court’s ruling found that Texas and Louisiana lacked standing to pursue litigation challenging immigration enforcement priorities established by President Joe Biden’s administration soon after he took office.

It’s the second decision in eight days in which the Supreme Court has rejected lawsuits from Texas on standing grounds. Last week, the court ruled that the state did not have standing to challenge a federal law that gives preferences to Native American families in the adoptions of Native children.

State standing is a key question in another major issue still awaiting decision from the court in the coming days: the legality of Biden’s decision to wipe out billions of dollars in student debt.

Six states are challenging the debt-relief plan, but it’s not clear if the states have suffered the sort of concrete harm that is typically necessary to challenge a policy in court. (In a separate case, two student-loan borrowers who oppose the plan are also suing. Their legal standing is also contested.)

In the immigration case, critics of the states’ approach said their claim of likely financial injury from unwarranted release of undocumented migrants was murky. But the court’s majority opinion written, by Justice Brett Kavanaugh, took a different tack and said the case was flawed because of a general principle against suits trying to force the executive branch to enforce the law against someone else.

“This Court has consistently recognized that federal courts are generally not the proper forum for resolving claims that the Executive Branch should make more arrests or bring more prosecutions,” Kavanaugh wrote, in an opinion joined by Chief Justice John Roberts and the court’s three liberals. “If the Court green-lighted this suit, we could anticipate complaints in future years about alleged Executive Branch under-enforcement of any similarly worded laws — whether they be drug laws, gun laws, obstruction of justice laws, or the like. We decline to start the Federal Judiciary down that uncharted path.”

. . . .

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

Read Josh’s complete article at the above link. The aptly titled case is United States v. Texas, and here’s a link to the full opinion:   https://www.supremecourt.gov/opinions/22pdf/22-58_i425.pdf 

I suppose whether you “like” or “hate” this decision depends on who is in power and what you think about them. As my friend and immigration commentator Nolan Rappaport told me, immigrants’ rights advocates might cheer this decision today, but will not be happy if Trump is elected and they can no longer team up with Democrat State AGs to challenge alleged abuses of prosecutorial authority by Trump’s Administration.

Recognizing Nolan’s point that the “sword cuts both ways,” I think this is the correct result. Perhaps, that’s because it’s a derivation of a long line of cases on prosecutorial discretion that we often successfully invoked during my time in the “Legacy INS” OGC. Also, it seems correct from a “separation of powers” standpoint.  

One of the cases that the Court relied upon is Linda R. S. v. Richard D., 410 U. S. 614 (1973). Interestingly, that case, then relatively recently decided, was one of the many I cited in the July 15, 1976 opinion that I drafted for then General Counsel Sam Bernsen approving the INS’s use of prosecutorial discretion.  See https://immigrationcourtside.com/wp-content/uploads/2018/02/Bernsen-Memo-service-exercise-pd.pdf.

Prosecutorial discretion was also an issue at the heart of the immigration case of John Lennon, which was recently in the news again because of the death of his legendary immigration counsel, Leon Wildes. See, e.g., https://immigrationcourtside.com/2024/01/09/😇-obit-leon-wildes-90-legendary-immigration-lawyer-educator-a-fond-remembrance-appreciation-from-careen-shannon-🗽/.

The “Bernsen opinion” (FN 8) cited the various Lennon cases and made reference to Leon’s article in Interpreter Releases (1976) on the topic.

After five decades of working in the immigration field in different positions and different levels, I think it’s always interesting how things from my “early career” still have relevance today!

U.S. v. Texas could also spell bad news for Texas GOP insurrectionists Gov. Greg Abbott and AG Ken Paxton in their lawless attempts to impede the U.S. Border Patrol enforcement at the border. See, e.g., https://www.cnn.com/2024/01/17/us/texas-border-patrol-us-mexico?cid=ios_app.

Indeed, although you wouldn’t know it from the mainstream media and the “alternate universe debate” now going on in Congress, the GOP claims of “open borders” and lack of immigration enforcement are total BS. In fact, the Biden Administration has far “out-deported” and “out-enforced” the Trump Administration. See, e.g., https://amsterdamnews.com/news/2024/01/03/deportation-numbers-under-biden-surpass-trumps-record/.

As experts and those who actually work with migrants at the border know, “enforcement only” doesn’t work at the border or anywhere else, although it does fuel political movements and powerful corporate interests. See, e.g., .https://open.substack.com/pub/theborderchronicle/p/prepare-yourselves-for-the-2024-border?r=1se78m&utm_medium=ios&utm_campaign=post. But, truth, rationality, humanity, expertise, and the rule of law are largely absent from today’s one-sided immigration discussions. That doesn’t bode well for the future of our nation or the world.

🇺🇸 Due Process Forever!

PWS

01-18-24

⚖️👏😎 BREAKING: SUPREME RELIEF: Court Reaffirms Executive’s Authority To Set Sane Immigration Enforcement Policies! — “Standing” Key! — Baseless Attacks By GOP In Texas & Louisiana Thwarted (For Now)  — 8-1 Win For Administration, Opinion by Justice Kavanaugh, 3 Concurring, Alito Lone Dissenter! — U.S. v. Texas

Here’s a copy of the full decision:

 https://www.supremecourt.gov/opinions/22pdf/22-58_i425.pdf

Here’s the syllabus (NOT part of the decision):

UNITED STATES ET AL. v. TEXAS ET AL. CERTIORARI BEFORE JUDGMENT TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 22–58. Argued November 29, 2022—Decided June 23, 2023

In 2021, the Secretary of Homeland Security promulgated new immigra- tion-enforcement guidelines (Guidelines for the Enforcement of Civil Immigration Law) that prioritize the arrest and removal from the United States of noncitizens who are suspected terrorists or dangerous criminals or who have unlawfully entered the country only recently, for example. The States of Texas and Louisiana claim that the Guide- lines contravene two federal statutes that they read to require the ar- rest of certain noncitizens upon their release from prison (8 U. S. C. §1226(c)) or entry of a final order of removal (§1231(a)(2)). The District Court found that the States would incur costs due to the Executive’s failure to comply with those alleged statutory mandates, and that the States had standing to sue based on those costs. On the merits, the District Court found the Guidelines unlawful and vacated them. The Fifth Circuit declined to stay the District Court’s judgment, and this Court granted certiorari before judgment.

Held: Texas and Louisiana lack Article III standing to challenge the Guidelines. Pp. 3–14.

(a) Under Article III, a plaintiff must have standing to sue. This bedrock constitutional requirement has its roots in the separation of powers. So the threshold question here is whether the States have standing to maintain this suit. Based on this Court’s precedents and longstanding historical practice, the answer is no.

To establish standing, a plaintiff must show an injury in fact caused by the defendant and redressable by a court order. The District Court found that the States would incur additional costs due to the chal- lenged arrest policy. And monetary costs are an injury. But this Court has stressed that the alleged injury must also “be legally and judicially cognizable.” Raines v. Byrd, 521 U. S. 811, 819. That requires that

2

UNITED STATES v. TEXAS Syllabus

the dispute is “traditionally thought to be capable of resolution through the judicial process.” Ibid. Here, the States cite no precedent, history, or tradition of federal courts entertaining lawsuits of this kind. On the contrary, this Court has previously ruled that a plaintiff lacks standing to bring such a suit “when he himself is neither prosecuted nor threatened with prosecution.” See Linda R. S. v. Richard D., 410 U. S. 614, 619. The Linda R. S. Article III standing principle remains the law today, and the States have pointed to no case or historical prac- tice holding otherwise. Pp. 3–6.

(b) There are good reasons why federal courts have not traditionally entertained lawsuits of this kind. For one, when the Executive Branch elects not to arrest or prosecute, it does not exercise coercive power over an individual’s liberty or property, and thus does not infringe upon interests that courts often are called upon to protect. Moreover, such lawsuits run up against the Executive’s Article II authority to decide “how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.” TransUnion LLC v. Ramirez, 594 U. S. ___, ___. The principle of Executive Branch enforcement dis- cretion over arrests and prosecutions extends to the immigration con- text. Courts also generally lack meaningful standards for assessing the propriety of enforcement choices in this area, which are invariably affected by resource constraints and regularly changing public-safety and public-welfare needs. That is why this Court has recognized that federal courts are generally not the proper forum for resolving claims that the Executive Branch should make more arrests or bring more prosecutions. Pp. 6–9.

(c) This holding does not suggest that federal courts may never en- tertain cases involving the Executive Branch’s alleged failure to make more arrests or bring more prosecutions. First, the Court has adjudi- cated selective-prosecution claims under the Equal Protection Clause in which a plaintiff typically seeks to prevent his or her own prosecu- tion. Second, the standing analysis might differ when Congress ele- vates de facto injuries to the status of legally cognizable injuries re- dressable by a federal court. Third, the standing calculus might change if the Executive Branch wholly abandoned its statutory respon- sibilities to make arrests or bring prosecutions. Fourth, a challenge to an Executive Branch policy that involves both arrest or prosecution priorities and the provision of legal benefits or legal status could lead to a different standing analysis. Fifth, policies governing the contin- ued detention of noncitizens who have already been arrested arguably might raise a different standing question than arrest or prosecution policies. But this case presents none of those scenarios. Pp. 9–12.

(d) The discrete standing question raised by this case rarely arises because federal statutes that purport to require the Executive Branch

Cite as: 599 U. S. ____ (2023) 3 Syllabus

to make arrests or bring prosecutions are rare. This case is different from those in which the Federal Judiciary decides justiciable cases in- volving statutory requirements or prohibitions on the Executive, be- cause it implicates the Executive Branch’s enforcement discretion and raises the distinct question of whether the Federal Judiciary may in effect order the Executive Branch to take enforcement actions. The Court’s decision does not indicate any view on whether the Executive is complying with its statutory obligations. Nor does the Court’s nar- row holding signal any change in the balance of powers between Con- gress and the Executive. Pp. 12–14.

606 F. Supp. 3d 437, reversed.

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, and JACKSON, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS and BAR- RETT, JJ., joined. BARRETT, J., filed an opinion concurring in the judg- ment, in which GORSUCH, J., joined. ALITO, J., filed a dissenting opinion.

Key quotes from Justice Kavanaugh’s majority opinion:

In short, this Court’s precedents and longstanding

historical practice establish that the States’ suit here is not the kind redressable by a federal court.

B

Several good reasons explain why, as Linda R. S. held, federal courts have not traditionally entertained lawsuits of this kind.

To begin with, when the Executive Branch elects not to arrest or prosecute, it does not exercise coercive power over an individual’s liberty or property, and thus does not infringe upon interests that courts often are called upon to protect. See Lujan, 504 U. S., at 561–562. And for standing purposes, the absence of coercive power over the plaintiff makes a difference: When “a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed” to establish standing. Id., at 562 (emphasis deleted).2

Moreover, lawsuits alleging that the Executive Branch has made an insufficient number of arrests or brought an insufficient number of prosecutions run up against the Executive’s Article II authority to enforce federal law. Article II of the Constitution assigns the “executive Power” to the President and provides that the President “shall take Care that the Laws be faithfully executed.” U. S. Const., Art. II, §1, cl. 1; §3. Under Article II, the Executive Branch possesses authority to decide “how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.” TransUnion LLC, 594 U. S., at ___ (slip op., at 13); see Lujan, 504 U. S., at 576–578; Allen, 468

——————

2 By contrast, when “the plaintiff is himself an object of the action (or

forgone action) at issue,” “there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.” Lujan, 504 U. S., at 561–562.

Cite as: 599 U. S. ____ (2023) 7

Opinion of the Court

U.S., at 760–761. The Executive Branch—not the Judiciary—makes arrests and prosecutes offenses on behalf of the United States. See United States v. Nixon, 418 U. S. 683, 693 (1974) (“the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case”); Printz v. United States, 521 U. S. 898, 922–923 (1997) (Brady Act provisions held unconstitutional because, among other things, they transferred power to execute federal law to state officials); United States v. Armstrong, 517 U. S. 456, 464 (1996) (decisions about enforcement of “the Nation’s criminal laws” lie within the “special province of the Executive” (internal quotation marks omitted)); Buckley v. Valeo, 424 U. S. 1, 138 (1976) (“A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully executed’” (quoting U.S. Const., Art. II, §3)); see also United States v. Cox, 342 F. 2d 167, 171 (CA5 1965).

That principle of enforcement discretion over arrests and prosecutions extends to the immigration context, where the Court has stressed that the Executive’s enforcement discretion implicates not only “normal domestic law enforcement priorities” but also “foreign-policy objectives.” Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 490–491 (1999). In line with those principles, this Court has declared that the Executive Branch also retains discretion over whether to remove a noncitizen from the United States. Arizona v. United States, 567 U. S. 387, 396 (2012) (“Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all”).

In addition to the Article II problems raised by judicial review of the Executive Branch’s arrest and prosecution policies, courts generally lack meaningful standards for assessing the propriety of enforcement choices in this area. After all, the Executive Branch must prioritize its

8 UNITED STATES v. TEXAS Opinion of the Court

enforcement efforts. See Wayte v. United States, 470 U. S. 598, 607–608 (1985). That is because the Executive Branch (i) invariably lacks the resources to arrest and prosecute every violator of every law and (ii) must constantly react and adjust to the ever-shifting public-safety and public- welfare needs of the American people.

This case illustrates the point. As the District Court found, the Executive Branch does not possess the resources necessary to arrest or remove all of the noncitizens covered by §1226(c) and §1231(a)(2). That reality is not an anomaly—it is a constant. For the last 27 years since §1226(c) and §1231(a)(2) were enacted in their current form, all five Presidential administrations have determined that resource constraints necessitated prioritization in making immigration arrests.

In light of inevitable resource constraints and regularly changing public-safety and public-welfare needs, the Executive Branch must balance many factors when devising arrest and prosecution policies. That complicated balancing process in turn leaves courts without meaningful standards for assessing those policies. Cf. Heckler v. Chaney, 470 U. S. 821, 830–832 (1985); Lincoln v. Vigil, 508 U. S. 182, 190–192 (1993). Therefore, in both Article III cases and Administrative Procedure Act cases, this Court has consistently recognized that federal courts are generally not the proper forum for resolving claims that the Executive Branch should make more arrests or bring more prosecutions. See Linda R. S., 410 U. S., at 619; cf. Heckler, 470 U. S., at 831 (recognizing the “general unsuitability for judicial review of agency decisions to refuse enforcement”); ICC v. Locomotive Engineers, 482 U. S. 270, 283 (1987) (“it is entirely clear that the refusal to prosecute cannot be the subject of judicial review”).3

——————

3 Also, the plaintiffs here are States, and federal courts must remain

mindful of bedrock Article III constraints in cases brought by States

Cite as: 599 U. S. ____ (2023) 9

Opinion of the Court

All of those considerations help explain why federal courts have not traditionally entertained lawsuits of this kind. By concluding that Texas and Louisiana lack standing here, we abide by and reinforce the proper role of the Federal Judiciary under Article III. The States’ novel standing argument, if accepted, would entail expansive judicial direction of the Department’s arrest policies. If the Court green-lighted this suit, we could anticipate complaints in future years about alleged Executive Branch under-enforcement of any similarly worded laws—whether they be drug laws, gun laws, obstruction of justice laws, or the like. We decline to start the Federal Judiciary down that uncharted path. Our constitutional system of separation of powers “contemplates a more restricted role for Article III courts.” Raines, 521 U. S., at 828.

C

In holding that Texas and Louisiana lack standing, we do not suggest that federal courts may never entertain cases involving the Executive Branch’s alleged failure to make more arrests or bring more prosecutions.

First, the Court has adjudicated selective-prosecution claims under the Equal Protection Clause. In those cases, however, a party typically seeks to prevent his or her own prosecution, not to mandate additional prosecutions

——————

against an executive agency or officer. To be sure, States sometimes have standing to sue the United States or an executive agency or officer. See, e.g., New York v. United States, 505 U. S. 144 (1992). But in our system of dual federal and state sovereignty, federal policies frequently generate indirect effects on state revenues or state spending. And when a State asserts, for example, that a federal law has produced only those kinds of indirect effects, the State’s claim for standing can become more attenuated. See Massachusetts v. Laird, 400 U. S. 886 (1970); Florida v. Mellon, 273 U. S. 12, 16–18 (1927); cf. Lujan, 504 U. S., at 561–562. In short, none of the various theories of standing asserted by the States in this case overcomes the fundamental Article III problem with this lawsuit.

10 UNITED STATES v. TEXAS Opinion of the Court

against other possible defendants. See, e.g., Wayte, 470 U. S., at 604; Armstrong, 517 U. S., at 459, 463.

Second, as the Solicitor General points out, the standing analysis might differ when Congress elevates defacto injuries to the status of legally cognizable injuries redressable by a federal court. See Brief for Petitioners 20, n. 3; cf. TransUnion LLC, 594 U. S., at ___–___ (slip op., at 10–11); Federal Election Comm’n v. Akins, 524 U. S. 11, 20 (1998); Raines, 521 U. S., at 820, n. 3; Lujan, 504 U. S., at 578; Linda R. S., 410 U. S., at 617, n. 3. For example, Congress might (i) specifically authorize suits against the Executive Branch by a defined set of plaintiffs who have suffered concrete harms from executive under-enforcement and (ii) specifically authorize the Judiciary to enter appropriate orders requiring additional arrests or prosecutions by the Executive Branch.

Here, however, the relevant statutes do not supply such specific authorization. The statutes, even under the States’ own reading, simply say that the Department “shall” arrest certain noncitizens. Given the “deep-rooted nature of law- enforcement discretion,” a purported statutory arrest mandate, without more, does not entitle any particular plaintiff to enforce that mandate in federal court. Castle Rock, 545 U. S., at 761, 764–765, 767, n. 13; cf. Heckler, 470 U. S., at 835. For an arrest mandate to be enforceable in federal court, we would need at least a “stronger indication” from Congress that judicial review of enforcement discretion is appropriate—for example, specific authorization for particular plaintiffs to sue and for federal courts to order more arrests or prosecutions by the Executive. Castle Rock, 545 U. S., at 761. We do not take a position on whether such a statute would suffice for Article III purposes; our only point is that no such statute is present in this case.4

——————

4 As the Solicitor General noted, those kinds of statutes, by infringing

Cite as: 599 U. S. ____ (2023) 11 Opinion of the Court

Third, the standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions. Under the Administrative Procedure Act, a plaintiff arguably could obtain review of agency non-enforcement if an agency “has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” Heckler, 470 U. S., at 833, n. 4 (internal quotation marks omitted); see id., at 839 (Brennan, J., concurring); cf. 5 U. S. C. §706(1). So too, an extreme case of non-enforcement arguably could exceed the bounds of enforcement discretion and support Article III standing. But the States have not advanced a Heckler-style “abdication” argument in this case or argued that the Executive has entirely ceased enforcing the relevant statutes. Therefore, we do not analyze the standing ramifications of such a hypothetical scenario.

Fourth, a challenge to an Executive Branch policy that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status could lead to a different standing analysis. That is because the challenged policy might implicate more than simply the Executive’s traditional enforcement discretion. Cf. Department of Homeland Security v. Regents of Univ. of Cal., 591 U. S. ___, ___–___ (2020) (slip op., at 11–12) (benefits such as work authorization and Medicare eligibility accompanied by non- enforcement meant that the policy was “more than simply a non-enforcement policy”); Texas v. United States, 809 F. 3d 134, 154 (CA5 2015) (Linda R. S. “concerned only nonprosecution,” which is distinct from “both nonprosecution and the conferral of benefits”), aff ’d by an equally divided Court, 579 U. S. 547 (2016). Again, we need

——————

on the Executive’s enforcement discretion, could also raise Article II issues. See Tr. of Oral Arg. 24–25.

12 UNITED STATES v. TEXAS Opinion of the Court

not resolve the Article III consequences of such a policy. Fifth, policies governing the continued detention of noncitizens who have already been arrested arguably might raise a different standing question than arrest or prosecution policies. Cf. Biden v. Texas, 597 U. S. ___ (2022). But this case does not concern a detention policy, so

we do not address the issue here.5

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

Given the narrow resolution on standing grounds, and the reservations set forth in Section C of Justice Kavanaugh’s opinion, in addition to the somewhat different approach of the three concurring Justices, Gorsuch, Thomas, and Barrett, it’s unpredictable what this decision might mean if the DACA challenge now pending before U.S. District Judge Hanen eventually reaches the Supremes. In “point four” of “Section C,” Justice Kavanaugh goes to some length to distinguish a situation “that involves both the Executive Branch’s arrest or prosecution priorities and the Executive Branch’s provision of legal benefits or legal status,” citing the Court’s earlier decision in DHS v. Regents, involving a DACA challenge that was decided on APA technical grounds.

Still, this is a strong statement rejecting the attempt of GOP States and GOP lower Federal Court Judges to take over Federal immigration enforcement! And, with Immigration Courts overwhelmed with a largely artificially-inflated 2 million case backlog, many consisting of cases in which relief should be granted elsewhere (like at USCIS) or where removal would actually be detrimental to the interests of the U.S., a reaffirmation of the Executive’s historical authority to set reasonable, practical immigration enforcement priorities could not come soon enough. 

In that light, it’s curious why in a case where the ultimate result was lopsided, the Court DENIED the Administration’s motion for a stay pending review of the Fifth Circuit’s and USDC’s wrong orders! This unnecessarily created months of “enforcement chaos” which has been damaging both to individuals and to our national interests.

I also find it interesting that Justice Kavanaugh cited and in part relied upon the Executive’s Article II authority to enforce the law. This was also part of the rationale I used in a 1976 legal opinion written for then General Counsel Sam Bernsen reaffirming the “Legacy” INS’s authority to exercise prosecutorial discretion in designating some cases as “non priority.” 

That memo stated:

The ultimate source for the exercise of prosecutorial discretion in the Federal Government is the power of the President. Under Article II, Section 1 of the Constitution, the executive power is vested in the President. Article II, Section 3, states that the President “shall take care that the laws be faithfully executed.”

. . . .

The reasons for the exercise of prosecutorial discretion are both practical and humanitarian. There simply are not enough resources to enforce all of the laws and regulations presently on the books. As a practical matter, therefore, law enforcement officials have to make policy choices as to the most effective and desirable way in which to deploy their limited resources. Thus, for example, police and prosecutors may choose to concentrate on apprehension and prosecution of perpetrators of violent crimes, while choosing not to proceed against those committing so-called “victimless crimes,” such as certain consensual sex acts and possession of small amounts of marihuana. In addition, there are times when defects in the quality, quantity, or method of gathering evidence will make it difficult to prove the matter before a court.

Aside from purely practical considerations, it is also obvious that in enacting a statute the legislature cannot possibly contemplate all of the possible circumstances in which the statute may be applied. In some situations, application of the literal letter of the law would simply be unconscionable and would serve no useful purpose. For instance, a prosecutor may well decide not to proceed against a terminally ill individual, even in the presence of overwhelming evidence of guilt.

You can find a copy of that legal opinion here: https://wp.me/p8eeJm-260. Still relevant, after nearly half a century!

🇺🇸 Due Process Forever!

PWS

06-23-23

HISTORICAL TRIBUTE: SAM BERNSEN (1919-2020) GIANT OF AMERICAN IMMIGRATION — By Kyle Swenson, As Told By Stuart Bernsen (Sam’s Son) in WashPost

Sam & Paul
Sam & Me at his FDP, DC Retirement, June 4, 1993
Photo by Betty Bernsen
PWS Archives

 

 

 

 

 

When Sam Bernsen was born in the summer of 1919, the world was still in the throes of an influenza pandemic. One hundred and one years later, he died in Bethesda after contracting another virus that ballooned into a global pandemic. But between those two world-shaking health events, Bernsen lived a full life packed with public service, baseball and family.

“I consider myself the luckiest person in the world having him as a father,” son Stuart Bernsen said. “He was full of love for his family and his extended family and his friends. He was a wonderful and optimistic person.”

Sam Bernsen died of covid-19 on July 26.

[Those we have lost to the coronavirus in Virginia, Maryland and D.C.]

His family emigrated from Eastern Europe in 1900, his son said. He was born in the Bronx on July 13, 1919. He was the youngest of seven children. “He was kind of raised by his sisters,” Stuart said.

Bernsen’s father was a tailor, and the family was poor. Growing up, Bernsen and the youths from the neighborhood took joy in the success of their hometown New York Yankees, then fielding a mythic squad anchored by sluggers Babe Ruth and Lou Gehrig — Bernsen’s favorite player.

There was no way the children of immigrants scraping out a life in the city could afford tickets to the games, so Bernsen and his friends would climb to the roof of a building overlooking the outfield near Yankee Stadium and watch the games from there.

. . . .

Bernsen later served as the general counsel for the Immigration and Naturalization Service from 1974 to 1977.

“He knew the policies and the stories behind every regulation and operating instruction, as well as the history of all the immigration statutes from the 1924 Act on,” retired immigration judge Paul Wickham Schmidt, a friend and former colleague, wrote in an online remembrance, adding, “Sam had progressive views on using court decisions and common sense to make the immigration laws function better and easier to administer for everyone, at least in some small ways.”

. . . .

https://www.washingtonpost.com/dc-md-va/2021/04/06/sam-bernsen-dies-covid-19/

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

Read the entire obit at the above link.

Here’s my tribute to Sam from Courtside, written last summer at the time of his death:

https://immigrationcourtside.com/2020/07/30/%EF%B8%8Fa-legal-giant-passes-sam-bernsen-1919-2020-public-servant-law-partner-teacher-scholar-mentor-humanitarian-advocate-for-due-pr/

Also, from “the archives,” courtesy of Stuart, here’s a copy of my thank you note to Sam for being the “keynote speaker” at my investiture at the Arlington Immigration Court in June 2003:

LtrPaulSchmidt to SamB on InvestitureRemarks June 2003 Scan_20201128

RIP, my friend, mentor, and law partner!

PWS

04-07-21

🇺🇸🗽⚖️A LEGAL GIANT PASSES: SAM BERNSEN (1919 – 2020) — Public Servant, Law Partner, Teacher, Scholar, Mentor, Humanitarian, Advocate For Due Process — He Helped Change The Face Of America For The Better!

Sam Bernsen
Sam Bernsen
1919 – 2020
Immigration Official, Law Partner, Educator, Mentor

A LEGAL GIANT PASSES: SAM BERNSEN (1919 – 2020) — Public Servant, Law Partner, Teacher, Scholar, Mentor, Humanitarian, Advocate For Due Process — He Helped Change The Face Of America For The Better!

By Paul Wickham Schmidt

Courtside Exclusive

July 30, 2020.  I’d seen his name on briefs and old court cases (See, e.g., Vaccaro v. Bernsen, 267 F.2d 265 (5th Cir. 1959)). But, the first time I met Sam Bernsen was in January 1976, when I reported for work at the “Legacy” Immigration & Naturalization (“INS”) Office of General Counsel at the Chester Arthur Building in a rather run-down neighborhood within walking distance of the U.S. Capitol. 

That building was perhaps a suitably shabby tribute to the “stepchild” status of INS within the hierarchy of the U.S. Department of Justice (“DOJ”). The carpet was shopworn, elevators slow, and the corridors dim as a result of the Ford Administration’s “Whip Inflation Now” (“WIN”) austerity program that had removed every other fluorescent lightbulb from the fixtures.

The office was a far cry from today’s Department of Homeland Security (“DHS”) massive legal operations: Just Sam, then the General Counsel, his Deputy, Ralph Farb, and two other “General Attorneys,” Stuart Shelby and Janice Podolny. Stu, Janice, and I actually shared an office with three desks (but only two telephones).

And it was always “Sam” not “Samuel.” Sam was his legal name, and he was very proud of it. Perhaps he connected it with “Uncle Sam.”

In any event, one of his “pet peeves” was when unknowing folks addressed him as “Samuel” in memos or on legal documents. I remember him vigorously “blacking out” the offending “uel” with his pen. His other pet peeve was when the server put parmesan cheese on his daily lunchtime bowl of minestrone soup at the GAO cafeteria!

Remarkably, I had gotten the job without personal interview by Sam. I attributed this to recommendations by Sam’s good friend and my first mentor Maury Roberts, then Chairman of the Board of Immigration Appeals (“BIA”), and another friend of Sam’s, Leon Ullman, then Deputy Assistant Attorney General at the DOJ Office of Legal Counsel.

Working for Sam was like having a personal daily seminar in American immigration law from a really great professor. Sam had done it all. And, he took the time to explain everything to those working with him. 

During his teens, Sam started at the very bottom of the Civil Service system as an “assistant messenger” with the U.S. Attorney in New York and then the INS on Ellis Island. According to Sam, he never he never made “full messenger.” But, he did rise to the top of the ranks of Civil Servants as General Counsel. 

In between, Sam was an immigration inspector, chair of a board of special inquiry (the predecessor to today’s Immigration Courts), chief adjudicator, Assistant Commissioner for Adjudications, and District Director in New Orleans as well as serving in the Army during World War II and later as a Major in the Air Force Reserve. He knew the policies and the stories behind every regulation and operating instruction, as well as the history of all the immigration statutes from the 1924 Act on.

America’s immigrant heritage that Sam observed at Ellis Island and in his childhood neighborhood in Brooklyn greatly influenced his life. The 1975 movie “Hester Street,” about Jewish immigrants in New York in the early 20th century, was one Sam’s and his wife Betty’s favorites.

Sam loved providing clear, concise, practical, understandable legal advice to the INS Commissioner (then General Leonard Chapman, Jr., former Commandant of the Marine Corps) and various “operating divisions” of the INS in what was then known as the Central Office (“CO”). It likely came from his experience as a field officer who had to make decisions based on what came out of the CO. Gen. Chapman had Sam on “constant call” for legal advice.

Although Sam’s background was “old school up through the ranks,” he had a “new school” attitude and vision about the future of immigration law. Like his friend Maury Roberts at the BIA, Sam pioneered the use of the “Attorney General’s Honors Program” (of which I was a product) to bring a “new generation” of younger attorneys into the INS. That was later expanded by his immediate successors as General Counsel, David Crosland (Carter Administration) and Maurice C. “Mike” Inman, Jr. (Reagan Administration).

Sam had progressive views on using court decisions and common sense to make the immigration laws function better and easier to administer for everyone, at least in some small ways. One of the things we worked on was the “INS Efficiency Act,” originally introduced by Senator Ted Kennedy (D-MA) in 1979 and eventually incorporated into the “Immigration & Nationality Act Amendments of 1981,” enacted into law by P.L. 97-116 (Dec. 29, 1981). 

This made a number of “common sense” fixes that Sam had noted over the years both by studying appellate court decisions and from answering recurring questions from INS operating divisions and DOJ litigation divisions handling our cases. It harkens back to a bygone time when public service in immigration was about “doing the right thing” and “promoting the common good” rather than advancing restrictionist ideological agendas.

My all-time favorite project with Sam was the July 1976 legal opinion approving and recommending the use of “prosecutorial discretion” by INS enforcement officials. This provided a sound legal basis for the INS’s “deferred action” program. Later, it formed part of the basis for the Deferred Action for Childhood Arrivals (“DACA”) program that has so greatly benefitted both America and deserving young people while, at least for a short time, helping to bring some badly needed rationality, humanity, uniformity, and proper prioritization of resources to an all too often scattershot and out of control DHS enforcement program.

Although written by me, that opinion reflects the “essence of Sam” — enforcement with rationality, humanity, prudence, fairness, attention to the views of courts, and standards to prevent arbitrariness. A full copy of that 1976 memorandum is linked below. My initials are at the bottom of the last page. 

In light of all the nonsense making the rounds today, our conclusion is worth keeping in mind:

The power of various officers of the Executive Branch to exercise prosecutorial discretion is inherent and does not depend on express statutory authorization. . . . [T]he Service’s attempts to set forth some standards for the exercise of prosecutorial discretion are particularly appropriate.

My time in the General Counsel’s Office with Sam was all too short. He retired in 1977. At the time, he had 38 years of Federal service, but was only 57-years-old, with several more distinguished careers in front of him. 

Sam went on to become one of the “founding partners” and managing partner of the Washington, D.C. Office of the powerhouse national immigration firm Fragomen, Del Rey, & Bernsen, now the international law firm known as “Fragomen.” He also became a noted educator in the field, lecturing and writing for the American Immigration Lawyers Association (“AILA”) and serving as an Adjunct Professor of Law at Catholic University and American University. I hired some of his former students in various capacities in some of my “future incarnations.”

Along the way, Sam tried to “recruit” me for his firm. But, I wasn’t quite ready to make the jump. Later, however, we did “reunite” for a short “transition period” when I succeeded him as the managing partner of Fragomen DC in 1993. 

What I remember most about Sam from our stint in private practice was how loyal his clients were and how much they trusted him with their fate and future. One of his greatest joys was working with students, young professionals, and student advisors on issues relating to F-1, J-1, and H-1 non-immigrant visas. We also did some projects relating to the interpretation of statutes and regulations that we had a role in drafting and enacting back in the General Counsel days. His clients and the Government officials he dealt with regarded Sam with reverence, as both the “ultimate authority” and the “total straight shooter,” a somewhat unusual combination for a lawyer in private practice.

Sam and I kept in touch for many years at AILA Conferences and other educational events, even after I rejoined Government in 1995 as Chair of the BIA. Sam was an avid tennis player, and from time to time I would run into folks who had met him in courts of both the tennis and legal variety. Indeed, Sam kindly served as the “featured speaker,” at my investiture as an Immigration Judge at the Arlington Immigration Court in June 2003. 

Along with folks like Maury Roberts, Ralph Farb, Charlie Gordon, Irv Applemen, and Louisa Wilson, Sam was one of my mentors and one of the all-time greats of American law. He represented a constructive, scholarly, and humane view of public service that has all but disappeared from the scene. Yet, he also saw into the future and was able to “reinvent himself” in new and dynamic ways after leaving public service. I had to do some of the same  and always looked to Sam as a role model.

Sam’s decisions, opinions, scholarship, and humanity helped shape generations of American immigration law. His work both in and out of Government changed the lives of thousands of immigrants for the better and helped build our nation into the diverse country it is today. His many students and those he mentored over the years, like me, continued his legacy and formed the forerunner of the “New Due Process Army.”

America and the world are richer and better because of Sam’s life and contributions. Sam knew the law, perhaps better than any other, and he used it to further humane goals whenever possible. Would that we had more role models like Sam in positions of responsibility and authority today! Sam, thanks for everything, and may you rest in peace after a “life very well lived!” 

Here is a link to our 1976 legal opinion on prosecutorial discretion:

Bernsen-Memo-service-exercise-pd

Here’s a link to Sam’s full obituary in the Washington Post:

https://www.legacy.com/obituaries/washingtonpost/obituary.aspx?n=sam-bernsen&pid=196559901&fhid=10909

PWS

07-30-20

🏴‍☠️AFFIRMATIVE MISCONDUCT — 2d Cir. Calls Out DHS Misconduct, Reacts To DOJ’s Questionable Litigating “Strategy” In Equitable Estoppel Case — Schwebel v. Crandall

 

Jeffrey Feinbloom
Jeffrey Feinbloom
Partner
Feinbloom Bertisch LLP
NY, NY

Schwebel v. Crandall, 18-3391 (2d Cir. July 22, 2020)

https://scholar.google.com/scholar_case?case=1950544751001345123&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Attorney Jeffrey Feinbloom reports:

I am pleased to announce a big win today before the Second Circuit.  The Opinion is attached.

 

The Court held that the government is equitably estopped from denying an application for adjustment of status where:  (1) it commits “affirmative misconduct” by failing to comply with an affirmatively required procedure – in this case, the failure to issue a Receipt or Rejection Notice in response to an attempted filing; (2) the applicant reasonably relies on the agency’s misconduct/inaction; and (3) the applicant is prejudiced thereby.

 

The interesting twist in this case is that the Court declined to reach the underlying statutory issue – concerning the CSPA – on which the District Court ruled in our favor.  My take, having litigated and argued the case in both courts, is that the panel was genuinely flabbergasted that the government was pursuing the appeal and took the opportunity to stick it to DHS and issue a ruling on estoppel.  The District Court did not even address estoppel, which was my alternative argument and occupied less than 5% of my briefing.  My understanding is that the District Court decision – affirmed on other grounds – can still be cited for the substantive/legal conclusions it made regarding the CSPA.  (Please correct me if I am wrong).

 

­­­­­­­­­__________________________________

­­­­­­­­­­­Jeffrey A. Feinbloom

FEINBLOOM BERTISCH LLP

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

Thanks, Jeffrey.  The term “Affirmative Misconduct” could be used to describe the overall conduct of DHS and the entire immigraton kakistocracy under the Trump regime.

Historical Footnote: I worked on Corniel-Rodriguez v. INS, 532 F.2d 301, 306-07 (2d Cir. 1976) (holding that government official’s “noncompliance with an affirmatively required procedure” constituted “severe” misconduct, and reversing Board of Immigration Appeal’s (“BIA”) order of deportation without remanding to agency for fact-finding or further proceedings) when I was a young attorney in the “Legacy INS” Office of General Counsel, then headed by the legendary immigration guru Sam Bernsen, in 1976. 

The Corniel-Rodriguez case led directly to the eventual creation of the section 212(k) waiver for innocent misrepresentations on visa applications as part of a larger “INS Efficiency Bill” proposed by our Office and eventually enacted by Congress. Just shows that there was a time when those running the U.S. immigration system actually “did the right thing,” at least on some occasions. Perhaps not surprisingly, “doing the right thing” often also proved to be the “efficient thing” by promoting justice and avoiding unnecessary, and often losing, litigation.

Those days, of course, are long gone. The Government immigration system is now run by hacks lacking both expertise and values and who, with the assistance of the DOJ, intentionally clog the Federal Courts with litigation that likely would have been deemed frivolous, unethical, or at least not in the best interests of the public in earlier times. 

It also highlights a severe deterioration in the performance of the Solicitor General’s Office in the DOJ. That office used to encourage all Federal agencies to develop administrative solutions in cases where, after review of the Article III Courts’ “adverse decisions,” the agency position below appeared to be indefensible in future litigation. 

Now, the Solicitor General is actually a “cheerleader” for some racially motivated appeals against lower court decisions correctly favoring immigrants and asylum seekers. These appeals are often “supported” by very obvious pretexts for invidious actions by the regime. Given the lack of integrity, courage, and commitment to racial justice on the current Supremes’ majority, the “bad guys” sometimes improperly prevail. 

But, it’s actually no more mystery to outgoing Solicitor General Noel Francisco what motivates Stephen Miller & co. than it is to the rest of us. It’s just that Francisco has consciously chosen to be “part of the problem,” something that should be remembered when the history of his disgraceful tenure in office is written. 

It also shows that whenever we finally get a return to “Good Government,” a “cleanout” of EOIR and creation of an Article I Immigration Court needs to be the first thing on the list; but, a thorough re-examination of the role of every part of a corrupt DOJ that has failed to act independently and has furthered a program of overt racism, inequality, and injustice, and often argued disingenuously for “worst practices and worst interpretations,” is also an absolute necessity.

To state the obvious, the fairness and efficiency of our immigration system as well as our entire U.S. Justice system is actually in full throttle reverse under the Trump kakistocracy.

Due Process Forever!

PWS

07-23-20

IT’S HERE! — IMMIGRATION HISTORY AT ITS BEST! — Months In The Making, The “Schmidtcast,” A 7-Part Series Featuring Podcaster Marica Sharashenidze Interviewing Me About My Legal Career “American Immigration From Mariel to Miller” — Tune In Now!

Marica Sharashenidze
Marica Sharashenidze
Podcaster Extraordinaire

Marica Sharashenidze

Born in 1993, Marica was raised in Maryland and earned a B.A. in Sociology from Rice University. Marica worked in the past as a paralegal at Hudson Legal in Ann Arbor and most recently explored eGovernance based infrastructure projects on the Dorot Fellowship. In the past, she received the Wagoner Fellowship, from the Higher School of Economics in Saint Petersburg, Russia, where she completed a year long ethnographic research project. She is fluent in Russian and proficient in Spanish and Hebrew.

Hon. Paul Wickham Schmidt
Hon. Paul Wickham Schmidt
U.S. Immigraton Judge (Ret.)
Adjunct Professor, Georgetown Law
Blogger, immigrationcourtside.com

Judge (Retired) Paul Wickham Schmidt 

Judge Schmidt was appointed as an Immigration Judge at the U.S. Immigration Court in Arlington, Virginia, in May 2003 and retired from the bench on June 30, 2016. Prior to his appointment as an Immigration Judge, he served as a Board Member for the Board of Immigration Appeals, Executive Office for Immigration Review, in Falls Church, VA, since February 12, 1995. Judge Schmidt served as Board Chairman from February 12, 1995, until April 9, 2001, when he chose to step down as Chairman to adjudicate cases full-time. He authored the landmark decision Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996), extending asylum protection to victims of female genital mutilation.  He received a Bachelor of Arts degree from Lawrence University in 1970 (cum laude), and a Juris Doctorate from the University of Wisconsin School of Law in 1973 (cum laude; Order of the Coif). While at the University of Wisconsin, he served as an editor of the Wisconsin Law Review. Judge Schmidt served as acting General Counsel of the former Immigration and Naturalization Service (INS) (1986-1987; 1979-1981), where he was instrumental in developing the rules and procedures to implement the Immigration Reform and Control Act of 1986. He also served as the Deputy General Counsel of INS for 10 years (1978-1987). He was the managing partner of the Washington, DC, office of Fragomen, Del Rey & Bernsen (1993-95), and also practiced business immigration law with the Washington, DC, office of Jones, Day, Reavis and Pogue from 1987-92 (partner, 1990-92). Judge Schmidt also served as an adjunct professor of law at George Mason University School of Law in 1989 and at Georgetown University Law Center (2012-14; 2017–). He has authored numerous articles on immigration law, and has written extensively for the American Immigration Lawyers Association. Judge Schmidt is a member of the American Bar Association, the Federal Bar Association, and the Wisconsin and District of Columbia Bars. Judge Schmidt was one of the founding members of the International Association of Refugee Law Judges (“IARLJ”).  In June 2010, Judge Schmidt received the Lucia R. Briggs Distinguished Achievement Award from the Lawrence University Alumni Association in recognition of his notable career achievements in the field of immigration law. Since retiring, in addition to resuming his Adjunct Professor position at Georgetown Law, Judge Schmidt has established the blog immigrationcourtside.com, is an Americas Vice President of the IARLJ, serves on the Advisory Board of AYUDA, and assists the National Immigrant Justice Center/Heartland Alliance on various projects, as well as speaking, lecturing, and writing in forums throughout the country on contemporary immigration issues, due process, and U.S. Immigration Court reform.

Here are links:

https://pws.transistor.fm/

https://feeds.transistor.fm/the-life-and-times-of-the-honorable-paul-wickham-schmidt

And here are some “Previews with links to each episode:”

 

Concluding Remarks

So, what now? Will the intentional cruelty, “Dred Scottification,” false narratives, and demonization of “the other,” particularly women, children, and people of color, by presidential advisor Stephen Miller and his White Nationalists become the “future face” of America? Or, will “Our Better Angels” help us reclaim the vision of America as the “Shining City on the Hill,” welcoming immigrants and protecting refugees, in good times and bad, while “leading by example” toward a more just and equal world?

The Mariel Boatlift Crisis

The Refugee Act of 1980 feels like a huge success…for a short amount of time. The first test of the act comes when Fidel Castro opens Cuba’s borders (and Cuba’s prisons) and hundreds of refugees arrive on Florida shores. The Mariel Boatlift Crisis forced the U.S. government to realize that not all asylum processing can happen abroad. Unfortunately, it also left the public with the impression that “Open arms and open hearts” leads only to crisis.

The Refugee Act of 1980

The year is 1980 and the war in Vietnam has displaced hundreds and thousands of people. The system of presidential parole doesn’t seem like it can handle the growing global refugee crisis. What is the answer to this ballooning need? Process most refugees abroad to streamline their entrance to the U.S. Codify asylum in the U.S. in legislation that puts human rights first. Increase prestige, improve overall government coordination, provide a permanent source of funding, and institutionalize refugee resettlement programs and assimilation. Have Ted Kennedy be the face of the effort. For once, things are actually working out for humanity.

The 1990s BIA

In the 1990s, Judge Schmidt was BIA Chairman Schmidt. With the support of then Attorney General Janel Reno, he aspired to “open up” appellate judgeships to all immigration experts, and to lead the BIA to much-needed progressive steps towards humane asylum law, better scholarship, improved public service, transparency, and streamlined efficiency to reduce the backlog. However, progress seemed to stall at several points and certain types of behavior tended to be rewarded. The Board sits at the intersection between a court and an agency within the administration, which means its hurdles come both from structural issues with the U.S. Justice System and with entrenched government bureaucracy.

Creating EOIR

In the 1980s, critics claimed that the federal agency in charge of immigration enforcement, the “Legacy” Immigration and Naturalization Service (“INS”), could not process quasi-judicial cases in a fair and just manner due to limited autonomy, non-existent technology, insufficient resources, haphazard management, poor judicial selection processes, and backlogs. The solution? Create a sub-agency of the Department of Justice (“DOJ”) just for the immigration courts, focused on “due process with efficiency” and organizationally separate from the agency charged with immigration enforcement. The Executive Office of Immigration Review (“EOIR”) was an ambitious and noble endeavor, meant to be an independent court system operating inside of a Federal Cabinet agency. Spoiler: despite significant initial progress it did not work out that way in the long run.

The Immigration Reform and Control Act

In 1986, the United States was facing an immigration crisis with an overwhelmed INS and a record number of undocumented folks in the country. IRCA, a bipartisan bill, was created to solve the immigration crisis through a three-pronged approach: legalization, enforcement and employer accountability. However, it soon became apparent that some parts of IRCA were more successful than others. IRCA taught us relevant lessons for going forward. Because while pathways to citizenship are self-sustaining, enforcing borders is not.

The Ashcroft Purge

Judges are meant to be impartial; but, U.S. Immigration Judges have political bosses who are willing and able to fire them while making little secret of their pro-enforcement, anti-immigrant political agenda. What are the public consequences of an Immigration Court with limited autonomy from the Executive Branch? We begin the podcast at one of the “turning points,” when Attorney General John Ashcroft fired almost all the most “liberal” Board Members of the BIA, all of whom were appointed during the Clinton Administration. What followed created havoc among the U.S. Courts of Appeals who review BIA decisions. The situation has continually deteriorated into the “worst ever,” with “rock bottom” morale, overwhelming backlogs, fading decisional quality, and the “weaponized”Immigration Courts now tasked with carrying out the Trump Administration’s extreme enforcement policies.

 

You should also be able to search for the podcast on iTunes, Stitcher or Spotify just by searching “American Immigration From Mariel to Miller”.

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

Many, many thanks to Marica for persuading me to do this project and for doing all the “hard stuff.” I just “rambled on” — her questions and expert editing provided the context and “framework.”  And, of course, Marica provided all the equipment (the day her brother “borrowed” her batteries) and the accompanying audio clips and written introductions. 

Also, many thanks to my wife Cathy for the many hours that she and “Luna the Dog” (a huge “Marica fan”) spent trying not to listen to us working in the dining room, while adding many helpful suggestions to me, starting with “you sound too rehearsed” and “lose the ‘uhs’ and ‘you knows.’” She even put up with me playing some of the “original takes” while we were “on the road” to Wisconsin or Maine.

Happy listening!

Due Process Forever!

PWS😎

05-19-20

SCOFFLAW SESSIONS SLAMMED AGAIN BY FEDERAL JUDGE! — WHITE NATIONALIST OBSESSION WITH PUNISHING “SANCTUARY CITIES” UNLAWFUL AS WELL AS STUPID — “For a federal officer charged with upholding the law, Jeff Sessions seems to need an awful lot of reminding of what the law says. It’s time he took the lessons he’s getting from federal courts to heart.”

http://www.latimes.com/business/hiltzik/la-fi-hiltzik-sessions-sanctuary-20180917-story.html

Pulitzer Prize Winning journalist Michael Hiltzik reports for the LA Times:

Another judge slaps down Jeff Sessions for trying to punish ‘sanctuary’ cities like L.A.

Another judge slaps down Jeff Sessions for trying to punish 'sanctuary' cities like L.A.
Atty. Gen. Jeff Sessions just can’t win in his attempts to punish local communities for “sanctuary” laws. (Aaron P. Bernstein / Getty Images)

Atty. Gen. Jeff Sessions must be getting tired of so much winning in his campaign to punish cities and states with the temerity to challenge his attempted crackdown on immigration.

In the latest episode, U.S. Judge Manuel L. Real of Los Angeles enjoined him from withholding more than $1 million in federal law enforcement assistance funding from L.A. because the city declared itself a “sanctuary” community. Real ruled that Sessions was way out of line in attempting to add conditions to a federal grant program designed to be based strictly on a community’s population and crime rates.

Real’s injunction tracks a nationwide injunction issued in April by the U.S. 7th Circuit Court of Appeals in Chicago. In that case, brought by the city of Chicago, the appellate panel ruled 2-1 that Sessions’ actions “evince … a disturbing disregard for the separation of powers” principle enshrined in the Constitution.

The Attorney General repeatedly characterizes the issue as whether localities can be allowed to thwart federal law enforcement. That is a red herring.


Share quote & link

“The power of the purse does not belong to the Executive Branch,” the majority reminded Sessions. “It rests in the Legislative Branch,” which in this case didn’t delegate to Sessions the authority to impose conditions on the law enforcement grants.

Several federal courts have slapped down Sessions’ efforts to bludgeon local communities into doing the federal government’s dirty work of immigration enforcement, so it’s proper to take a quick look at Sessions’ viewpoint.

Sessions started throwing conniptions about sanctuary communities in March 2017, a couple of months after President Trump issued an executive order calling for federal funds to be withheld from communities that he said were out to thwart immigration agents. “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States,” Trump asserted.

Trump’s order recognized that the law might constrain how the Department of Justice might act, so Sessions attempted to gin up a legal rationale. He asserted that jurisdictions across the nation were actively violating federal immigration laws, pumping undocumented immigrants back onto the streets even after their convictions for serious crimes. Sessions has cited two provisions of federal law, “Section 1373” and immigration detainers.

The first, enacted in 1996 under Bill Clinton, prohibits anyone from interfering with the exchange of information with federal authorities about the immigration status of any person. The law says merely that once local officials have that information, they can’t be stopped from trading it to the feds. Nothing in the law, however, requires local officials to collect information about the immigration status of anyone they have in custody in the first place.

“Detainers” are requests by immigration officials that local police hold immigrants who are in the U.S. illegally and suspected or accused of a serious crime for 48 hours, or until the immigration authorities can decide if they want to take further action themselves. The Congressional Research Service found in 2015 that local policies vary widely about when to honor detainers, with many honoring those for people held for serious felonies but not for suspects in minor misdemeanor cases. Some require commitments from the federal government to cover the cost of detention or even the locality’s legal liability. Demanding compliance with all detainers, some experts say, raises the possibility of federal commandeering of local resources for federal purposes, which happens to be unconstitutional.

Since Sessions began griping about sanctuary laws — many of which were enacted decades before Trump became president — federal judges have recognized consistently that localities have a legitimate interest in creating a trustful relationship between the police and the communities they serve. In communities with large populations of immigrants, that relationship can be easily destroyed if the cops become viewed as immigration agents. Residents will be reluctant to report crimes, much less help police find wrongdoers or testify against them. The result is more dangerous, not safer, communities.

In July, for example, Federal Judge John Mendez of Sacramento rejected the administration’s attempt to block three sanctuary laws enacted by the state Legislature in 2017. Mendez found that for the most part the laws fell squarely within the state’s authority to manage its own law enforcement resources and keep them from being “commandeered” by the federal government for its own purposes.

Nothing in the sanctuary laws “actively obstructs” federal officials, Mendez found; they only required state officials not to participate in federal immigration enforcement, except on their own terms. “Standing aside,” he wrote, “does not equate to standing in the way.”

Sessions hasn’t had any more success in trying to block federal funds for sanctuary cities. That’s the subject of the appeals court and Los Angeles cases. Both pertain to the Edward Byrne Memorial Justice Assistance Grant, a federal program enacted in 2005 and named after a New York police officer slain while guarding an immigrant who had agreed to testify against drug dealers.

Congress established a strict formula for the Byrne funds, requiring that 50% be disbursed each year to states in amounts proportionate to their population and crime levels, with the remaining 50% tied to states’ proportions of violent crime. The city and county of Los Angeles, which were to receive a combined $1.9 million in the current fiscal year, planned to use the money for anti-gang programs, among other things.

Before making the disbursements, however, the DOJ said that applicants would have to certify their compliance with Section 1373 and agree to other forms of cooperation with immigration officials.

The appeals court in Chicago thought little of the DOJ’s arguments. “The Attorney General repeatedly characterizes the issue as whether localities can be allowed to thwart federal law enforcement,” the majority observed. “That is a red herring.” They ridiculed Sessions for being “incredulous that localities receiving federal funds can complain about conditions attached to the distribution of those funds.” But that was just too bad, they concluded: He simply doesn’t have the authority to attach any conditions to the program, other than those dictated by the formula.

Judge Real came to the same conclusion. Sessions’ policy faced Los Angeles with “an impossible choice: Either it must certify compliance with unconstitutional and unlawful directives that impinge on the City’s sovereignty, damage community trust, and harm public safety, or it will lose congressionally authorized Byrne JAG funding.” Real wasn’t inclined to force the city to make that choice.

For a federal officer charged with upholding the law, Jeff Sessions seems to need an awful lot of reminding of what the law says. It’s time he took the lessons he’s getting from federal courts to heart.

Michael Hiltzik

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

Once upon a time, many years ago, I worked at a U.S. Department of Justice that functioned like “America’s law firm.” Every adverse decision was carefully studied by the agency, the litigator, and the Solicitor General’s Office. When the reviewing  court appeared to have “the better view of the law,” or when the agency position was repeatedly rejected and there was no “Circuit split,” the rules, regulations, BIA interpretations, and even the statute sometimes were changed to adopt the Federal Courts’ “better-reasoned view of the law.”

Indeed, while serving in the Legacy INS General Counsel’s Office under then General Counsel Sam Bernsen, I remember drafting successfully enacted legislation (known as the “INS Efficiency Act”) that actually adopted into law some Federal Court decisions that had reversed INS and also tried to fashion some “legislative compromises” that we thought would pass muster in the Article IIIs. Amazingly, it was enacted into law with only minor modifications to my original draft.

Yup, it wasn’t always popular with the “operating divisions” of the INS. But, it was the job of “us lawyers” to “sell them” on why compliance with legal standards was important. And, indeed, I remember getting the essential support of “upper level management” — at that time the Commissioner, General Leonard Chapman, Jr., and his Deputy Jim Greene, certainly supporters of strong immigration enforcement, for the legislative changes our Office drafted.

In other words, we were trying to make Government work effectively within legal boundaries rather than continuing to bother the Federal Courts with untenable or legally weak positions. Folks committed to “Good Government.” Imagine that!

Nowadays, under Jeff Sessions, the DOJ has abandoned any semblance of good lawyering or legal excellence and has, with a few exceptions (possibly Bob Mueller’s operation and the FBI under Director Chris Wray), been turned into a “White Nationalist propaganda factory.” Today’s hollow semblance of a DOJ consistently presents “jaw dropping” legal positions that are both bad policy and supported by weak to nonexistent legal arguments that sometimes fail to pass the “straight fact test.”

That’s because Jeff Sessions doesn’t operate as a lawyer. No, he’s a “Minister of Propaganda” who spreads racially-driven bogus views, false narratives, and misleading statistics, then feigns shock and outrage when the “real” Federal Courts consistently “stuff” him and apply the actual law and Constitution. When your legal  positions are not drawn from the law, the Constitution, input from career lawyers, and consultation with experts in the field, but rather taken from “cue cards” prepared by widely discredited White Nationalist restrictionist groups, the results are bound to be ugly.

The only surprising thing is that such a stunningly biased and unqualified individuals as Jeff Sessions has been given the opportunity to destroy the integrity of the U.S. Department of Justice and to make it a subservient tool of his attack on American values and our entire justice system. Sen. Liz Warren tried to tell ’em. But they wouldn’t listen. Now, Jeff Sessions is dragging all of America down in the muck with him.

PWS

09-18-18

CRISTIAN FARIAS @ NEW YORK MAGGIE – THE HISTORY OF PROSECUTORIAL DISCRETION IN IMMIGRATION GOING ALL THE WAY BACK TO THE “BERNSEN MEMO” – WHY, CONTRARY TO SESSIONS & THE RESTRICTIONISTS, IT IS A SOUND LEGAL CONCEPT – AND WHY THE SUPREMES SHOULD STAY OUT OF THE DACA ISSUE IN THE LOWER COURTS! – PLUS BONUS TRIVIA! – “Who REALLY wrote that four decades old memo?

http://nymag.com/daily/intelligencer/2018/02/scotus-would-be-crazy-to-jump-into-the-daca-dispute.html

Cristian writes:

“The earliest, highest-profile critic of granting an executive reprieve to Dreamers was none other than Justice Antonin Scalia. The plight of young immigrants brought to the United States as children was not something the Supreme Court was concerned with in 2012, but the late justice somehow felt the need to protest, in open court, President Obama’s then weeks-old decision to not deport them for humanitarian reasons. “The president has said that the new program is, quote, the right thing to do, close quote, in light of Congress’ failure to pass the administration’s proposed revision of the immigration laws,” he said as he read from a summary of his partial dissent in Arizona v. United States. That case and decision had nothing to do with Dreamers.

Maybe Scalia’s real qualm was with the sitting president and not the recipients of the Deferred Action for Childhood Arrivals program, better known as DACA. But his broader point, which a Supreme Court majority rejected, was that states should have leeway in enforcing federal immigration laws, since they — and not undocumented immigrants — face the “human realities” of a broken immigration system. The citizens of border states like Arizona “feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy,” Scalia complained. Somewhere, a future President Trump may have been taking notes.

More than five years since that screed, the Supreme Court could soon get a chance to judge the propriety, if not the legality, of Trump’s decision last September to pull the plug on DACA. A federal judge in California in January ordered the reinstatement of the program, reasoning that its rescission rested on a “flawed legal premise” — namely, Jeff Sessions’s paper-thin conclusion that DACA was illegal the moment it was conceived. The judge also rejected as “spin” and “post-hoc rationalization” the Trump administration’s contention that DACA was vulnerable to a legal challenge by Texas and other states, which had threatened Sessions with a lawsuit if he didn’t kill the initiative outright. “The agency action was not in accordance with law because it was based on the flawed legal premise that the agency lacked authority to implement DACA,” wrote the judge, William Alsup, in a ruling that effectively brought DACA back from the dead. Days later, the administration began accepting renewal applications as if the rollback had never happened.

Legal scholars weren’t impressed with the ruling. And Sessions, not one to give up on Trump’s anti-immigrant crusade, then took the “rare step” of appealing Alsup’s decision directly to the Supreme Court — and why not? The Ninth Circuit, Trump’s least favorite appeals court, is unruly, liberal, and anti-Trump, anyway; leapfrogging it seemed the smart thing to do. What’s more, Sessions wanted the justices to act expeditiously — his solicitor general filed an additional request to decide the case before the end of June. Not doing so, he suggested, would be the same as blessing “indefinitely an ongoing violation of federal law being committed by nearly 700,000 aliens.” So much for Trump’s wish to treat Dreamers “with heart.” There was only one problem: The Supreme Court rarely, if ever, lets anyone skip over the regular appeals process. And if Sessions is in such a hurry, why didn’t the administration seek to block Alsup’s ruling rather than comply with it? Last Friday, a coalition that includes the University of California, several states, a local chapter of the SEIU, and a number of Dreamers told the Supreme Court to reject the Trump administration’s request to hear the case. The DACA mess, this alliance broadly contended, is Trump’s and Congress’s to own, and the justices shouldn’t be the ones fixing it, at least not with the urgency Sessions is demanding.

. . . .

The principle of prosecutorial discretion, which is what holds DACA together, was never once discussed by Sessions when he announced the wind-down of DACA. He didn’t even try. Prosecutorial discretion wasn’t some novelty that Napolitano came up with at the time, let alone a quirk of immigration law. In a path-breaking memorandum written some 40 years ago, Sam Bernsen, the general counsel of the now-defunct Immigration and Naturalization Service, advised the agency’s commissioner that the “ultimate source for the exercise of prosecutorial discretion” lies with the inherent powers of the presidency. “Under Article II, Section 1 of the Constitution, the executive power is vested in the President,” Bernsen wrote in what is believed to be the first in a long string of government memos justifying prosecutorial discretion in the immigration realm. “Article II, Section 3, states that the President ‘shall take care that the laws be faithfully executed.’” Ironically, conservatives would later seize on this “take care” language to argue breathlessly that Obama’s immigration actions were an affront to the constitutional text, but no judge took that argument seriously.

Far and wide, executive officers enjoy similar discretion to enforce the law. From the president down to a lowly street cop, every law enforcer, state or federal, exercises some form of prosecutorial discretion over the laws they’re entrusted to oversee. It’s the reason you don’t always get ticketed for jaywalking or pulled over for doing 65 on a 55, even in instances where you happen to do those things in full view of the police: The government has ample discretion to not go after you if it feels you’re a low-priority lawbreaker. Maybe the 75-miles-per-hour driver is the bigger fish. Whichever the case, the decision is, by and large, unchallengeable. “Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all,” wrote Justice Anthony Kennedy in the same immigration ruling that Scalia assailed in 2012. “Discretion in the enforcement of immigration law embraces immediate human concerns,” he added.

Kirstjen Nielsen, the new DHS secretary, and Trump himself have all but conceded the point in recent weeks. In an interview with CBS’s John Dickerson, Nielsen said that it’s “not the policy of DHS” to go after Dreamers who are DACA recipients, even if the current legislative talks fail and the program isn’t renewed. “It’s not going to be a priority of the Immigration and Customs Enforcement to prioritize their removal,” Nielsen clarified, directly contradicting the Department of Justice’s position on DACA before the Supreme Court. (Dreamers and immigration advocates know better than to trust Nielsen’s assurances.) Asked last month if he might extend the arbitrary March 5 end date of the DACA rollback process — which is no longer the end date as a result of Judge Alsup’s ruling — Trump spoke as if he never truly believed, like Sessions did, that deferred action was unlawful: “I certainly have the right to do that if I want.”

In this climate, and with Trump still fielding immigration offers as Congress faces yet another deadline to fund the government, the Supreme Court would be crazy to jump into the DACA controversy. “I think for the Supreme Court to reach down to a district court decision and not allow the normal appellate process to proceed would necessarily, under the circumstances, involve or indicate that the Supreme Court is signaling its involvement in a deeply political matter,” Napolitano told me. Scalia may have felt comfortable criticizing policy choices from the bench, but that doesn’t mean Chief Justice John Roberts and his colleagues have to take the bait. For their own peace of mind and that of Dreamers, the Court is better off staying as far away as possible, and letting Trump take care of the laws that give him broad authority to spare young undocumented immigrants if he really wants to.”

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Read the rest of Cristian’s analysis, including his detailed interview with former DHS Secretary Janet Napolitano, now President of the University of California System and a plaintiff in the District Court case, over at New York at the above link.

SPECIAL BONUS:

From the “archives” here’s a copy of the famous “Bernsen Memo” of July 15, 1976:

Bernsen Memo service-exercise-pd

YOUR TOSSUP IMMIGRATION TRIVIA QUESTION OF THE DAY:

Who actually wrote the “Bernsen Memo?”  

(Hint: Look at the bottom of the last page.)