Department of Homeland Security – Page 232

NYT: Is The Trump Administration Creating A “New Underground” In America?

https://www.nytimes.com/2017/02/23/world/trump-migrants-deportation.html?mwrsm=Email&_r=0&mtrref=undefined

MAX FISHER and AMANDA TAUB report:

“New deportation rules proposed by the Trump administration risk creating an American underclass with parallels to others around the world: slum residents in India, guest workers in oil-rich Persian Gulf states and internal migrant workers in China.

Those groups provide a cautionary tale for what could happen if the 11 million undocumented immigrants in the United States, as well as their family members, are forced deep into the shadows.

Stuck in a gray zone outside the legal system, they are vulnerable to exploitation, including wage theft and sex trafficking. Because they are denied formal protections or services, informal alternatives take their place — creating an ideal space for corruption, gangs and other forms of criminality.

The result is often the precise opposite of what the administration is seeking: not a cohesive society but a fragmented one, not less crime but more, and, rather than ending undocumented immigration, deepening the secrecy that makes it difficult to manage.”

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Read the full article at the link.

PWS

02/26/17

WashPost VA POLITICS: Gov. McAuliffe Meets With DHS Sec. Kelly — Says DHS Assures No “Random Raids!”

https://www.washingtonpost.com/local/virginia-politics/mcauliffe-says-trump-administration-promises-no-random-immigration-arrests/2017/02/26/5d6a2722-fc5a-11e6-8f41-ea6ed597e4ca_story.html?hpid=hp_local-news_mcauliffe-0435pm%3Ahomepage%2Fstory&utm_term=.9d7c237ac950

Gregory S. Schneider reports:

“Virginia Gov. Terry McAuliffe (D) said Department of Homeland Security Secretary John F. Kelly assured him Sunday that immigration agents are not conducting random raids and will not target undocumented residents unless they are suspected of being involved in illegal activity.

“He explained to me what the new procedures were,” McAuliffe said Sunday after a private 45-minute briefing with Kelly, who is a retired general. “I do take a four-star U.S. Marine general at his word.”

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Sure seems like Gen. Kelly and the White House are giving different messages here.

PWS

02/26/17

Nolan Rappaport Comments On Expansion of Expedited Removal In “The Hill”

http://thehill.com/blogs/pundits-blog/immigration/321102-what-expedited-removal-really-means-for-illegal-immigrants-in

Nolan writes:

“Knowing that an alien in the United States who is charged with being deportable has a statutory right to a hearing before an immigration judge and that there is a backlog crisis in our immigration courts, I predicted that President Donald Trump would not be able to deport millions of undocumented immigrants.

Since then, the backlog has gotten even higher. As of the end of January 2017, it was 542,411 cases and the average wait time for a hearing was almost 700 days.

Even if the immigration judges did not receive any additional cases, it would take them more than two-and-a-half years to catch up.

But President Trump has finessed his way around this problem by implementing a little-known expedited removal provision in his executive order (EO), “Border Security and Immigration Enforcement Improvements.” The provision is section 235(b)(1)(A)(iii)(II) of the Immigration and Nationality Act (INA).

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 established expedited removal proceedings to deal with fraud and willful misrepresentations at ports of entry and to stop aliens with bogus asylum claims from being admitted for asylum hearings before an immigration judge. Many of them absconded instead of appearing at their hearings.
Under expedited removal proceedings, which are conducted by immigration officers, an alien who lacks proper documentation or has committed fraud or willful misrepresentation of facts to gain admission into the United States is inadmissible and may be removed without a hearing before an immigration judge. Aliens subject to expedited removal must be detained until they are removed and normally may only be released due to a medical emergency.”

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I agree with Nolan that the intent of the Trump Executive Order is to reduce the number of individuals who will be entitled to “full” removal hearings before an Immigration Judge. But, even if the Administration applies expedited removal in its broadest permissible form under the statute — to individuals who have been in the U.S. for less than two years, the vast majority of individuals in the U.S. without documentation will still be entitled to hearings in U.S. Immigration Court.

First, for a number of reasons, and quite contrary to the Trump Administration’s alarmist rhetoric, illegal entries have been declining over recent years. The overwhelming number of the estimated 11 million undocumented migrants in the U.S have been here at least two years and would therefore be entitled to full hearings.

The estimated number of undocumented migrants in the United States has actually dropped by one million, from approximately 12 million around 2007 to approximately 11 million today. And, although neither the Trump Administration nor most Republican legislators are willing to admit it, at least some of the credit belongs to the Obama Administration for increased border enforcement.

Moreover, the bulk of the undocumented arrivals over the past several years have been children, women, and families fleeing violence and corruption in the Northern Triangle of Central America. Most turn themselves in to the authorities at the border or shortly after crossing the border and seek asylum. The majority of those have been determined to have a “credible fear” of persecution and therefore have already been placed in removal proceedings.

As Nolan points out in his article, individuals who have not applied for asylum within one year of entry are prima facie barred from seeking asylum. However, there are exceptions to this rule for those who can demonstrate fundamentally changed circumstances or extraordinary circumstances directly related to the delay in filing.

Perhaps even more significantly, the one year bar does not apply to claims for protection under the withholding of removal provisions of the Immigration and Nationality Act, nor does it apply to claims under the Convention Against Torture. Other forms of relief under the Act also remain available to individuals who failed to timely file for asylum.

Additionally, even where an individual is subject to “expedited removal” she or he is still be entitled to a full removal hearing before an Immigration Judge if a DHS Asylum Officer finds that such individual has a “credible fear” of persecution.

As Nolan also points out, even where an Asylum Officer finds “no credible fear,” an individual may seek review by an Immigration Judge. Such reviews should take precedence over other types of detained hearings. Consequently, a dramatic increase in “credible fear” denials could well result in Immigration judges spending more time on such hearings and therefore having less time to conduct actual individual hearings on removability and relief.

While to date, the Article III Courts have seemed to accept the statutory limitations on their ability to review expedited removal and credible fear determinations, the Administration’s attempt to “ratchet up” summary removals is almost certainly going to draw more sophisticated constitutional challenges to the process from the advocacy community. And if, as is likely, the Administration “pushes the envelope” by attempting to remove individuals on an expedited basis without giving them a fair chance to obtain evidence that they have been present for two or more years, the Article III Courts are at some point likely to intervene to force at least some procedural due process into the system.

Consequently, notwithstanding efforts by the Trump Administration to circumvent the Immigration Court process, the new enforcement initiatives are still likely to put more than enough new cases before the Immigration Courts to crush an already overwhelmed system.

PWS

02/26/16

HuffPost: Sessions Reinstates Dangerous Private Prisons — Health & Safety of Inmates Takes Back Seat to Expediency And Profits For Private Prison Industry!

http://www.huffingtonpost.com/entry/doj-private-prisons-sessions_us_58af529ce4b0a8a9b780669a

Ryan J. Reilly a Ben Walsh report:

“WASHINGTON ― Attorney General Jeff Sessions on Thursday withdrew an Obama-era Justice Department memo that set a goal of reducing and ultimately ending the Justice Department’s use of private prisons.

In a one-page memo to the acting head of the Bureau of Prisons, Sessions wrote that the August 2016 memo by former Deputy Attorney General Sally Yates “changed long-standing policy and practice, and impaired the Bureau’s ability to meet the future needs of the federal correctional system.”

A Justice Department spokesman said Sessions’ memo “directs the Bureau of Prisons to return to its previous approach to the use of private prisons,” which would “restore BOP’s flexibility to manage the federal prison inmate population based on capacity needs.”

BOP currently has 12 private prison contracts that hold around 21,000 inmates. Yates had said that private prisons compared “poorly” to BOP prisons. Her memo followed a damning report from the Justice Department’s inspector general which found that privately run facilities were more dangerous than those run by BOP.

The two largest private prison companies have told investors that they have room to accommodate increased use of their prisons by federal or state and local authorities. On an earnings call with stock analysts this week, executives at GEO Group emphasized that their company has a total of 5,000 spots in its prisons that are presently either unused or underutilized.

GEO senior vice President David Donahue put it fairly bluntly, telling analysts that their idle and underutilized cells are “immediately available and meet ICE’s national detention standards.”

CoreCivic, formerly known as CCA, told investors on Feb. 17 that the company has nine idle prisons that can hold a total of 8,700 people. Those prisons are ready to accept inmates on short notice. “All of our idle facilities are modern and well maintained, and can be made available to potential state and federal partners without much, if any capital investment or the lead-time required for new construction,” CEO Damon Hininger said.

Indeed, Haninger said that CoreCivic was already holding more detained immigrants for the federal government than they anticipated. “Our financial performance in the fourth quarter of 2016 was well above our initial forecast due, in large part, to heightened utilization by ICE across the portfolio,” he said.

And, Haninger said, the Trump administration’s actions could boost financial performance even further. “When coupled with the above average rate crossings along the Southwest border, these executive orders appear likely to significantly increase the need for safe, humane and appropriate detention bed capacity that we have available in our existing real-estate portfolio,” he said. “We are well positioned,” to get more business from ICE, Haninger said.

David C. Fathi, who directs the American Civil Liberties Union’s National Prison Project, said that giving for-profit companies control of prisons is “a recipe for abuse and neglect.” He said the Sessions memo was a further sign the U.S. “may be headed for a new federal prison boom” under the Trump administration.”

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The disaster of Jeff Sessions as U.S. Attorney General continues to unfold. Contrary to what he told Senators during his contentious confirmation hearings, he’s the same old tone-deaf, insensitive, hard-liner he’s always been. There will be wrongful death suits in Sessions’s future naming him personally. While these so-called “Bivens actions” are usually a steep uphill climb for plaintiffs, given that Sessions acted with knowledge of both the Inspector General’s highly negative findings and his predecessor’s resulting action to curb private prison use, there could be a case there. I hope he took out personal liability insurance and got the highest amount of coverage. He might need it before his tenure is up.

And, as for the inmates and civil immigration detainees who are going to be kept in substandard conditions, I guess it’s just “tough noogies” as far as Sessions is concerned.

PWS

Zoe Tillman on BuzzFeed: U.S. Immigration Courts Are Overwhelmed — Administration’s New Enforcement Priorities Could Spell Disaster! (I’m Quoted In This Article, Along With Other Current & Former U.S. Immigration Judges)

https://www.buzzfeed.com/zoetillman/backlogged-immigration-courts-pose-problems-for-trumps-plans?utm_term=.pokrzE6BW#.wcMKevdYG

Zoe Tillman reports:

“ARLINGTON, Va. — In a small, windowless courtroom on the second floor of an office building, Judge Rodger Harris heard a string of bond requests on Tuesday morning from immigrants held in jail as they faced deportation.
The detainees appeared by video from detention facilities elsewhere in the state. Harris, an immigration judge since 2007, used a remote control to move the camera around in his courtroom so the detainees could see their lawyers appearing in-person before the judge, if they had one. The lawyers spoke about their clients’ family ties, job history, and forthcoming asylum petitions, and downplayed any previous criminal record.
In cases where Harris agreed to set bond — the amounts ranged from $8,000 to $20,000 — he had the same message for the detainees: if they paid bond and were set free until their next court date, it would mean a delay in their case. Hearings set for March or April would be pushed back until at least the summer, he said.
But a couple of months is nothing compared to timelines that some immigration cases are on now. Judges and lawyers interviewed by BuzzFeed News described hearings scheduled four, five, or even six years out. Already facing a crushing caseload, immigration judges are bracing for more strain as the Trump administration pushes ahead with an aggressive ramp-up of immigration enforcement with no public commitment so far to aid backlogged courts.
Immigration courts, despite their name, are actually an arm of the US Department of Justice. The DOJ seal — with the Latin motto “qui pro domina justitia sequitur,” which roughly translates to, “who prosecutes on behalf of justice” — hung on the wall behind Harris in his courtroom in Virginia. Lawyers from the US Department of Homeland Security prosecute cases. Rulings can be appealed to the Board of Immigration Appeals, which is also part of the Justice Department, and then to a federal appeals court.
As of the end of January, there were more than 540,000 cases pending in immigration courts. President Trump signed executive orders in late January that expanded immigration enforcement priorities and called for thousands of additional enforcement officers and border patrol officers. But the orders are largely silent on immigration courts, where there are dozens of vacant judgeships. And beyond filling the vacancies, the union of immigration judges says more judges are needed to handle the caseload, as well as more space, technological upgrades, and other resources.
Homeland Security Secretary John Kelly acknowledged the immigration court backlog in a memorandum released this week that provided new details about how the department would carry out Trump’s orders. Kelly lamented the “unacceptable delay” in immigration court cases that allowed individuals who illegally entered the United States to remain here for years.
The administration hasn’t announced plans to increase the number of immigration judges or to provide more funding and resources. It also isn’t clear yet if immigration judges and court staff are exempt from a government-wide hiring freeze that Trump signed shortly after he took office. There are 73 vacancies in immigration courts, out of 374 judgeships authorized by Congress.
“Everybody’s pretty stressed,” said Paul Schmidt, who retired as an immigration judge in June. “How are you going to throw more cases into a court with 530,000 pending cases? It isn’t going to work.”

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Zoe Tillman provides a well-reaserched and accurate description of the dire situation of justice in the U.S. Immigration Courts and the poorly conceived and uncoordinated enforcement initiatives of the Trump Administration. Sadly, lives and futures of “real life human beings” are at stake here.

Here’s a “shout out” to my good friend and former colleague Judge Rodger Harris who always does a great job of providing due process and justice on the highly stressful Televideo detained docket at the U.S. Immigration Court in Arlington, VA. Thanks for all you do for our system of justice and the cause of due process, Judge Harris.

PWS

02/24/17

Problems Mount For Administration On Travel Ban — Can’t Find Support For Their “Pre-Hatched” Conclusions — Stephen Miller Shoots Off Mouth Again — DOJ Litigators Undoubtedly Cringe As In-Court Statements Undermined!

https://www.washingtonpost.com/world/national-security/a-new-travel-ban-with-mostly-minor-technical-differences-that-probably-wont-cut-it-analysts-say/2017/02/22/8ae9d7e6-f918-11e6-bf01-d47f8cf9b643_story.html?utm_term=.e2b487b295a7

Matt Zapotsky writes in the Washington Post:

“Senior policy adviser Stephen Miller said President Trump’s revised travel ban will have “mostly minor technical differences” from the iteration frozen by the courts, and Americans would see “the same basic policy outcome for the country.”

That is not what the Justice Department has promised. And legal analysts say it might not go far enough to allay the judiciary’s concerns.

A senior White House official said Wednesday that Trump will issue a revised executive order on immigration next week, as the administration is working to make sure the implementation goes smoothly. Trump had said previously that the order would come this week. Neither the president nor his top advisers have detailed exactly what the new order will entail. Miller’s comments on Fox News, while vague, seem to suggest the changes might not be substantive. And that could hurt the administration’s bid to lift the court-imposed suspension on the ban, analysts said.

“If you’re trying to moot out litigation, which is to say, ‘Look, this litigation is no longer necessary,’ it is very bad to say our intent here is to engage in the prohibited outcome,” said Leon Fresco, who worked in the office of immigration litigation in President Barack Obama’s Justice Department.”

https://www.washingtonpost.com/blogs/right-turn/wp/2017/02/23/white-house-gives-plenty-of-ammunition-to-travel-bans-opponents/?utm_term=.9442c17ff14b

Jennifer Rubin writes in Right Turn in today’s Washington Post:

“Opponents of President Trump’s travel ban have one big advantage — the Trump White House. If not for the confusion, lack of staffing (nary a deputy, let alone an undersecretary or assistant secretary, has been named in national security-related departments), organizational disarray, policy differences or all of the above, the administration might have put together on its first try a legally enforceable executive order. It might by now even have come up with a new executive order, thanks to a road map provided by the 9th Circuit. However, the rollout has been pushed back to next week.

Understand that if this is such a matter of urgent concern, the president would have had his advisers working around the clock on this (not transgender bathroom assignments, plans to deport non-criminal illegal immigrants or haggling with Mexican officials over a wall that Trump insists they pay for). In fact, since the point of the ban is to initiate a review of our vetting procedures, you’d think that the Homeland Security Department would already have come up with its proposed “extreme vetting” recommendations.

Meanwhile, the president and his staff continue to provide legal ammunition to opponents of the ban. On Tuesday, senior adviser Stephen Miller in a Fox News interview boldly declared, “Fundamentally, you’re still going to have the same basic policy outcome for the country, but you’re going to be responsive to a lot of very technical issues that were brought up by the court.” Just to remind the courts of the administration’s arrogance, Miller proclaimed that there was nothing wrong with the first order.

“By saying that the policy effects of the new travel ban will be essentially the same as those of the travel ban that so many federal judges found constitutionally suspect, Miller is effectively inviting federal courts to suspend the new one as well, given that the religiously discriminatory history of the ban can’t be ignored, much less erased, simply by purporting to start over again,” Supreme Court litigator and professor Larry Tribe tells me. “If, as I am told, the new ban is a more artfully disguised version of [an] anti-Muslim measure, without explicit preferences for religious minorities in Muslim-majority countries (i.e., for Christians) written into the very text of the ban, then some judges might be less inclined to issue a temporary restraining order, but most federal judges would be savvy enough to recognize that they are being treated to a masquerade.”

http://www.cnn.com/2017/02/23/politics/white-house-effort-to-justify-travel-ban-causes-growing-concern-for-some-intel-officials/index.html

Meanwhile, Jake Tapper and Pamela Brown on CNN highlight more difficulties with the Administration’s “shoot first, ask questions later” approach:

“Washington (CNN)President Donald Trump has assigned the Department of Homeland Security, working with the Justice Department, to help build the legal case for its temporary travel ban on individuals from seven countries, a senior White House official tells CNN.

Other Trump administration sources tell CNN that this is an assignment that has caused concern among some administration intelligence officials, who see the White House charge as the politicization of intelligence — the notion of a conclusion in search of evidence to support it after being blocked by the courts. Still others in the intelligence community disagree with the conclusion and are finding their work disparaged by their own department.
“DHS and DOJ are working on an intelligence report that will demonstrate that the security threat for these seven countries is substantial and that these seven countries have all been exporters of terrorism into the United States,” the senior White House official told CNN. “The situation has gotten more dangerous in recent years, and more broadly, the refugee program has been a major incubator for terrorism.”

The report was requested in light of the Ninth Circuit Court of Appeals’ conclusion that the Trump administration “has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.” The seven counties are Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen.
The senior White House official said the desire to bolster the legal and public case that these seven countries pose a threat is a work in progress and as of now, it’s not clear if DHS and DOJ will offer separate reports or a joint report.
One of the ways the White House hopes to make its case is by using a more expansive definition of terrorist activity than has been used by other government agencies in the past. The senior White House official said he expects the report about the threat from individuals the seven countries to include not just those terrorist attacks that have been carried out causing loss of innocent American life, but also those that have resulted in injuries, as well as investigations into and convictions for the crimes of a host of terrorism-related actions, including attempting to join or provide support for a terrorist organization.
The White House did not offer an on-the-record comment for this story despite numerous requests.

. . . .

Asked about the report Thursday on “The Lead,” Rep. Dan Donovan, R-New York, emphasized that the intelligence community be nonpartisan.
“They should take data, take information, shouldn’t interpret it in a political way and provide the President the information he needs to make decisions to protect our country,” he said.
Also commenting on the report was Richard Haass, the president of the Council on Foreign Relations, who acknowledged that he hadn’t seen the specifics but “it looks wrong to me.”
“We ought to be doing the intel first, then set the policy and in large part based upon the intelligence,” Haass said. “If these reports are true, it’s yet another example where this administration is having real trouble ing a functional relationship with the intelligence community.”

[Emphasis supplied in all quotes]

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I was never a “line litigator.” But, I was involved in defending and prosecuting thousands of cases during the “Legacy INS Phase” of my career. I also participated in thousands more cases as an appellate and trial judge during the last 21 years at EOIR.

One of my jobs in providing litigation assistance as the Deputy General Counsel of the INS was to make sure my “institutional clients” did not comment on pending cases. Such comments both unnecessarily antagonized the judges hearing the cases and, on occasion, when folks didn’t heed my instructions, completely “tanked” our positions by giving our opponents new arguments.

As a sitting judge, I can guarantee that one of the least successful approaches was for a lawyer to insult my intelligence or integrity and then turn around and ask me to help out his or her client. Sure, in the end, I had to separate the law from the lawyer and do the right thing. But, it certainly interfered with the effectiveness of the lawyer’s communication and made it more difficult for me to get to the substance of his or her client’s case.

And, one thing that certainly infuriated all judges, including me, was for a lawyer to represent one thing in court and then have his or her client do something else. It made me lose confidence in the lawyer’s reliability and integrity and his or her ability to control and speak for the client. I can remember “chewing out” several lawyers at Master Calendar for misrepresenting facts or law to me in their briefs or oral arguments.

It appears that the Trump Administration’s combination of arrogance, ignorance, and disrespect for the court system and the role of judges is undermining both their credibility and the credibility of the Department of Justice career lawyers whose job is to represent them over and over again before most of the same judges. Once a judge loses faith in the credibility of a lawyer and/or her or his client, “bad things will happen” and they do.

PWS

02/23/17

WSJ: Trump, Kelly, Tillerson Continue On Different Pages Re Immigration Enforcement Program — Mexico Remains Skeptical!

https://www.wsj.com/articles/u-s-officials-on-tough-trip-in-mexico-trump-says-1487871849

FELICIA SCHWARTZ, JOSÉ DE CÓRDOBA and ROBBIE WHELAN write in the WSJ:

“MEXICO CITY—Top Trump administration officials tried Thursday to soften the message on expanded U.S. immigration-enforcement efforts during talks here, but Mexican officials signaled little progress had been made in bridging differences that threaten to further fray ties between the two countries.

Secretary of State Rex Tillerson and Homeland Security Secretary John Kelly faced a skeptical Mexican government as they sought to explain Washington’s decision to step up the enforcement of immigration laws, outlining policies to enlist local authorities in the U.S. to jail and deport more people and to send detainees back to Mexico—even if they aren’t Mexican.
Meanwhile in Washington, President Donald Trump made comments that seemed to sharpen the tone.

“All of a sudden for the first time we’re getting gang members out, we’re getting drug lords out, we’re getting really bad dudes out of this country at a rate that nobody’s ever seen before,” the president said during a White House event with manufacturing executives. “And it’s a military operation because they’re allowed to come into our country.”
“We’re going to have a good relationship with Mexico I hope,” Mr. Trump said. “And if we don’t, we don’t.”

In midday meetings in Mexico City, the U.S. cabinet members delivered two key assurances to their Mexican counterparts: that they wouldn’t institute “mass deportations,” and that the U.S. military wouldn’t take part in rounding up and ejecting illegal migrants.

Gabriela Cuevas, the head of the Mexican Senate’s foreign relations committee, said she was deeply troubled by the apparent discrepancy between what the U.S. envoys said in Mexico City and Mr. Trump’s actions and words.

“I see a different message coming from the White House and from the secretaries visiting here,” she said. “One doesn’t know if Secretary Tillerson and Secretary Kelly are telling the truth or not. It’s a problem of credibility. Did they come to tell lies? Or are they just not coordinating with their boss? Who do you believe?”

Later Thursday, the White House sought to walk back Mr. Trump’s use of the word “military” in reference to the immigration enforcement.

“The president was using that as an adjective. It’s happening with precision and in a manner in which it’s being done very, very clearly,” said Sean Spicer, the White House press secretary, at a news briefing. “The president was clearly describing the manner in which this was being done.”

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Lots of mixed messages here. I don’t see much chance at present that Mexico is going to agree to allow non-Mexican-citizens to wait for their U.S. immigration hearings in Mexico.

PWS

02/23/17

President Trump Might find That Mexico Has More Leverage Than He Anticipated — Beating Up On Your Friends & Neighbors To Score Political Points At Home Is Likely To Backfire!

https://www.washingtonpost.com/opinions/mexico-may-strike-back-heres-how/2017/02/22/5d1e8f56-f949-11e6-bf01-d47f8cf9b643_story.html?hpid=hp_no-name_opinion-card-d%3Ahomepage%2Fstory&utm_term=.12282059b

WashPost Editorial:

“PRESIDENT TRUMP has a good idea of the power the United States wields over Mexico, and the pain it may inflict — the construction of a wall Mexico fiercely opposes; taxes that could be slapped on Mexican imports, wreaking havoc on its economy; deportations of undocumented Mexican immigrants living in the United States, who would be thrust back into a country that would struggle to absorb them. Mr. Trump might have a fuzzier idea of the pain Mexico, its people furious and its pride wounded by his taunts and contempt, might inflict on the United States.

Start with those deportations. At least half of America’s 11 million unauthorized immigrants are Mexican, but many have no documents proving their nationality. For the Trump administration to deport them, it would need cooperation from Mexico, which cannot be forced to accept deportees without certifying that they are Mexicans. As former Mexican foreign minister Jorge G. Castañeda has already warned, Mr. Trump can round up hundreds of thousands or millions of migrants, but without Mexico’s cooperation, they could clog U.S. detention centers and immigration courts — at enormous cost and, conceivably, for years.

Consider, too, the effect on America’s southern border if Mexico were to loosen immigration controls on its own southern border — the one over which Central American refugees are already streaming north in near-record numbers. Even with what U.S. officials say are aggressive interdiction efforts by Mexican authorities, the Border Patrol detained more than 220,000 mainly Guatemalans, Hondurans and Salvadorans crossing from Mexico into the United States in the fiscal year ending last fall, exceeding the number of Mexicans apprehended, which has fallen to a 45-year low. If you think the Border Patrol is swamped now, as Homeland Security Secretary John F. Kelly insists, imagine if Mexico, which last year sent home more than 140,000 Central Americans, simply stepped aside.”

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Predictably, other countries take “sovereignty” just as seriously as we do.

PWS

02/22/17

DHS Trumpets The New Bureaucratic Doublespeak: You’re All Targets, But Don’t Worry Because We Don’t Have The Ability To Do What We Say We’ll Do — And, When We Do Deport You (Ideally, Without A Hearing & After Detaining You Just Because You’re You & We Can), We’ll Be Polite & Humane About It — We’ve Finally “Taken The Shackles” Of Restraint, Wisdom & Prudence Off Our Agents So That They Are Free To Be Nice & Reasonable — And We’re Planning To Bring On Thousands Of Minimally Trained New Agents And Local Cops To Do What We Can’t Do Now — But, Don’t Worry, It’ll All Work Out For You Back In Mexico, El Salvador, Somalia,Or Wherever You Belong

https://www.washingtonpost.com/politics/trump-administration-seeks-to-prevent-panic-over-new-immigration-enforcement-policies/2017/02/21/a2a695a8-f847-11e6-bf01-d47f8cf9b643_story.html?tid=hybrid_experimentrandom_3_na&utm_term=.20ca5c9e4384

David Nakamura Reports in the Washington Post:

“The Trump administration on Tuesday sought to allay growing fears among immigrant communities over wide-ranging new directives to ramp up enforcement against illegal immigrants, insisting the measures are not intended to produce “mass deportations.”

Federal officials cautioned that many of the changes detailed in a pair of memos from Homeland Security Secretary John F. Kelly will take time to implement because of costs and logistical challenges and that border patrol agents and immigration officers will use their expanded powers with care and discretion.

Yet the official public rollout of Kelly’s directives, first disclosed in media reports over the weekend, was met with outrage from immigrant rights advocates over concerns the new policies will result in widespread abuses as authorities attempt to fulfill President Trump’s goals of tightening border control.

Trump took a hard line against illegal immigration during his campaign, at times suggesting he would seek to create a nationwide “deportation force” to expel as many of the nation’s estimated 11 million unauthorized immigrants as possible.

In a conference call with reporters, a senior Department of Homeland Security official moved to avert what he called a “sense of panic” among immigrant communities.”

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Summary: Duh! So, we roll out this big new program in the first 35 days of the new Administration to great fanfare. But, nobody considered the resource and funding implications with Congress. So, it’s much ado about nothing (for now). But, don’t you dare lie about all the great things we’ve already accomplished. Watch for the biased media falsely claiming that it’s all smoke and mirrors or that we’re already rounding up some of the folks we said we’d deport. We mean what we say, but we’re not actually doing what we said we’d do. What kind of fools would panic about that?

PWS

02/22/17

Instant Summary Of New TRAC Immigration Court Reports By Dean Kevin Johnson On ImmigrationProf: Courts Are Peddling Faster But Going Backwards — Backlog Now Tops 542,000!

http://lawprofessors.typepad.com/immigration/2017/02/immigration-courts-deciding-more-cases-but-backlog-growing-.html

“Unfortunately, this growth in case completions has been insufficient to stem the growing backlog of cases still waiting for resolution before the Immigration Court. At the end of January 2017, the court’s backlog had increased to a record 542,411. Even if no additional cases were filed, the backlog now represents over a two and a half year workload for the court’s judges, based upon its current capacity to handle the matters before it.”

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Needless to say, the Trump Administrations’s ill-conceived “max enforcement – no common sense or judgment” program — as announced by DHS today — will completely “tank” what remains of due process in the U.S. Immigration Courts. Unless Congress steps in (highly unlikely) with legislation to establish an independent Article I Court which sets its own priorities, the entire immigration justice system is headed for collapse. Then, it will be up to the Article III courts to decide what, if anything, the Constitution requires for due process in immigration and what, if anything, the Executive Branch must do to reform the system. Stay tuned.

PWS

02/21/17

The Atlantic: The Eternal Wall — Even Two Terms Might Not Be Enough To Complete “Trump’s Folly!”

http://immigrationcourtside.com/2017/02/21/president-trump-takes-very-nuanced-approach-to-daca-retention-see-the-video-clip-from-cnn/

Nolan Rappaport forwarded this very interesting piece by ADRIENNE LAFRANCE in The Atlantic:

“The construction of a massive wall along the border of the United States and Mexico is one of President Donald Trump’s central campaign promises. And it’s a promise he intends to keep.

Within days of taking the oath of office in January, Trump began laying the groundwork for the construction of a series of walls and fences that would span some 1,250 miles along the border. On Monday, the Department of Homeland Security issued a memo outlining its commitment to “begin planning, design, construction and maintenance of a wall” to deter and prevent illegal entry into the United States. The memo follows an executive order in which Trump called for the wall’s “immediate construction.”

But how immediately can Trump’s wall be built?

One of the latest estimates, from an internal Department of Homeland Security report obtained by Reuters, is that the wall will take three-and-a-half years to build. The agency is aiming to seal the border in three phases of construction of fences and walls, completing its work by the end of 2020, Reuters reported.
But that estimate is almost certainly too ambitious, and for a few reasons. First and foremost, there’s the fact that Congress still has to approve the bulk of the money for a project that is likely to cost tens of billions of dollars, according to several estimates.

Even if lawmakers approved that kind of cash this week, the wall almost certainly wouldn’t be complete by the end of Trump’s first term—or even a potential second term. The “iron law” of infrastructural megaprojects, according to a paper by Bent Flyvbjerg published in the Project Management Journal in 2014, is that they will go “over budget, over time, over and over again.”

This is obviously the case in projects where everything that can go wrong seemingly does (think: Boston’s infamous Big Dig highway project). But even for well-managed megaprojects, building major infrastructure always seems to take longer than estimates suggest. Sometimes that’s because a time estimate only pertains to the actual construction—not the time leading up to it, says Andrew Natsios, the director of the Scowcroft Institute of International Affairs at Texas A&M University.”

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Gotta ask the obvious question: Why not repair bridges and highways to somewhere rather than build a wall to nowhere?

PWS

02/21/17

CNN: There Are Human Faces And Real Stories Of Horror, Pain, Perseverance, Belief, And Redemption Exposing The Trump Administration’s Wrong-Headed Attempt To Ban Refugees!

http://www.cnn.com/2017/02/21/us/travel-ban-somali-refugees-separated/index.html

Catherine E. Shoichet writes on CNN:

“For minutes that feel like hours, Abdalla and his family stand like statues in a line, their eyes laser focused on the set of escalators at Atlanta’s airport where waves of arriving passengers emerge.
Businessmen with briefcases, pilots in uniforms and families wearing winter coats come into view.
But so far, there’s no sign of Batulo.
Suddenly, Abdalla yells and bolts across the waiting area, past a bright red security line on the floor that says “DO NOT CROSS.”
Guards shout. He doesn’t hear them. To Abdalla, only one thing matters now. He sees his daughter’s face and sprints toward the light.
He sweeps Batulo into his arms and carries her like a running back toward a wall on the other side of the lobby. The rest of the family follows, like a trail behind a comet as it speeds through the sky.
Habibo sobs as she sits beside Batulo on the airport floor. They had feared this day would never come.
Habibo sobs as she sits beside Batulo on the airport floor. They had feared this day would never come.
Batulo is still wearing a plastic pouch around her neck, stuffed with a plane ticket and an ID card from the International Organization for Migration.
“I am a refugee from SOMALIA,” the card says. “I may not speak English and need help to find my next flight.”
Batulo flew more than 10,000 miles to get here, from Kakuma to Nairobi to Dubai to New York to Atlanta. American Airlines Flight 1687 brought her to a strange city, yet she is home.
Abdalla and his family sit on the airport floor, pressed together like puzzle pieces. They cling to each other, sobbing.
A new home
Batulo beams as she sips a can of Sprite through a straw.
Her sisters tug at her arms, pulling her from room to room as they show her their new home.
The living room floor is covered with plates stacked high with food that the family cooked together for hours as they awaited her arrival.
They sit in a circle, devouring baked chicken, fried fish, french fries and ugali, a cornmeal dish they prepared especially for Batulo.
Abdalla sends a voice message to Ramadhan, his oldest son, who’s still living in Kakuma. Batulo made it safely, he says.

Ramadhan replies that he’s relieved. “God willing,” he says, “someday I will make it, too.”
As they eat, Batulo’s family peppers her with questions.
Is there a still a mango hanging from the tree outside the transit center in Nairobi?
How many countries did you fly through to get here?
When we left, you didn’t look like this. Why are you so thin?
Ibrahim brings out some of his favorite new toys. Together, they sing the ABCs. He falls asleep, curled up on the floor beside his sister.
Abdalla yawns, then quickly gulps down a cup of coffee.
Exhaustion is starting to set in, but this is a moment he doesn’t want to miss. He leans back against the couch and listens to his daughters’ voices.
The only sound he hears is laughter.”

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Read the complete story and see the video and pictures at the link. Happy ending to this one, thanks to the U.S. Courts which stood up to President Trump and his minions. As you read the entire story, compare the real situation of real refugees, human beings in great need, with the “fake news” and fear mongering put forth by the Trump Administration in an attempt to justify the unjustifiable.

PWS

02/21/17

President Trump Takes Very Nuanced Approach To DACA Retention — See The Video Clip From CNN

http://www.cnn.com/2017/02/21/politics/dhs-immigration-guidance-detentions/index.html

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In the above video clip, President Trump takes a (perhaps surprisingly) very nuanced approach to the DACA kids. He realizes that most of them are wonderful and will do great things for America. He also sees the parallel with his own children and grandchildren.

I was encouraged that he appears to be listening to his own “better angels” here, rather than just to some of the “immigration hard-liners” surrounding him at the White House. And, he very correctly points out that one of the things he must do is sell his solution to Congress, including many members of his own party who might be skeptics.

Don’t know how this eventually will play out. But, overall, this shows a reflective side of the President that we don’t often see showcased or tweeted. Well worth the couple of minutes it takes to view.

PWS

02/21/17

BREAKING: DHS Releases Final Border Enforcement Memos — Get “Fact Sheet” & All The Links You Need Here!

Fact Sheet: Executive Order: Border Security and Immigration Enforcement Improvements | Homeland Sec

Highlights (sorry about the formatting — like a true “EOIR Vet” I did the best I could under the circumstances):

Actions

Enforcing the law. Under this executive order, with extremely limited exceptions, DHS will not exempt classes or categories of removal aliens from potential enforcement. All of those in violation of the immigration laws may be subject to enforcement proceedings, up to and including removal from the United States. The guidance makes clear, however, that ICE should prioritize several categories of removable aliens who have committed crimes, beginning with those convicted of a criminal offense.

Establishing policies regarding the apprehension and detention of aliens. U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) will release aliens from custody only under limited circumstances, such as when removing them from the country, when an alien obtains an order granting relief by statute, when it is determined that the alien is a U.S. citizen, legal permanent resident, refugee, or asylee, or that the alien holds another protected status, when an arriving alien has been found to have a credible fear of persecution or torture and the alien satisfactorily establishes his identity and that he is not a security or flight risk, or when otherwise required to do so by statute or order by a competent judicial or administrative authority.

Hiring more CBP agents and officers. CBP will immediately begin the process of hiring 5,000 additional Border Patrol agents, as well as 500 Air & Marine agents and officers, while ensuring consistency in training and standards.

Identifying and quantifying sources of aid to Mexico. The President has directed the heads of all executive departments to identify and quantify all sources of direct and indirect federal aid or assistance to the government of Mexico. DHS will identify all sources of aid for each of the last five fiscal years.

Expansion of the 287(g) program in the border region. Section 287(g) of the INA authorizes written agreements with a state or political subdivision to authorize qualified officers or employees to perform the functions of an immigration officer. Empowering state and local law enforcement agencies to assist in the enforcement of federal immigration law is critical to an effective enforcement strategy, and CBP and ICE will work with interested and eligible jurisdictions.

Commissioning a comprehensive study of border security. DHS will conduct a comprehensive study of the security of the southern border (air, land, and maritime) to identify vulnerabilities and provide recommendations to enhance border security. This will include all aspects of the current border security environment, including the availability of federal and state resources to develop and implement an effective border security strategy that will achieve complete operational control of the border.

Constructing and funding a border wall. DHS will immediately identify and allocate all sources of available funding for the planning, design, construction, and maintenance of a wall, including the attendant lighting, technology (including sensors), as well as patrol and access roads, and develop requirements for total ownership cost of this project.

Expanding expedited removal. The DHS Secretary has the authority to apply expedited removal provisions to aliens who have not been admitted or paroled into the United States, who are inadmissible, and who have been continuously physically present in the United States for the two-year period immediately prior to the determination of their inadmissibility, so that such aliens are immediately removed unless the alien is an unaccompanied minor, intends to apply for asylum or has a fear of persecution or torture in their home country, or claims to have lawful immigration status. To date, expedited removal has been exercised only for aliens encountered within 100 air miles of the border and 14 days of entry, and aliens who arrived in the United States by sea other than at a port of entry. The Department will publish in the Federal Register a new Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(a)(iii) of the Immigration and Nationality Act that expands the category of aliens

subject to expedited removal to the extent the DHS Secretary determines is appropriate, and CBP and ICE are directed to conform the use of expedited removal procedures to the designations made in this notice upon its publication.

Returning aliens to contiguous countries. When aliens apprehended do not pose a risk of a subsequent illegal entry, returning them to the foreign contiguous territory from which they arrived, pending the outcome of removal proceedings, saves DHS detention and adjudication resources for other priority aliens. CBP and ICE personnel shall, to the extent lawful, appropriate and reasonably practicable, return such aliens to such territories pending their hearings.

Enhancing Asylum Referrals and Credible Fear Determinations. U.S. Citizenship and Immigration Services (USCIS) officers will conduct credible fear interviews in a manner that allows the interviewing officer to elicit all relevant information from the alien as is necessary to make a legally sufficient determination. USCIS will also increase the operational capacity of the Fraud Detection and National Security Directorate.

Allocating resources and personnel to the southern border for detention of aliens and adjudication of claims. CBP and ICE will allocate available resources to expand detention capabilities and capacities at or near the border with Mexico to the greatest extent practicable. CBP will focus on short-term detention of 72 hours or less; ICE will focus on all other detention capabilities.

Properly using parole authority. Parole into the United States will be used sparingly and only in cases where, after careful consideration of the circumstances, parole is needed because of demonstrated urgent humanitarian reasons or significant public benefit.

Notwithstanding other more general implementation guidance, and pending further review by the Secretary and further guidance from the Director of ICE, the ICE policy directive with respect to parole for certain arriving aliens found to have a credible fear of persecution or torture shall remain in full force and effect.

Processing and treatment of unaccompanied alien minors encountered at the border. CBP, ICE, and USCIS will establish standardized review procedures to confirm that alien children who are initially determined to be unaccompanied alien children continue to fall within the statutory definition when being considered for the legal protections afforded to such children as they go through the removal process.

Putting into place accountability measures to protect alien children from exploitation and prevent abuses of immigration laws. The smuggling or trafficking of alien children into the United States puts those children at grave risk of violence and sexual exploitation. CBP and ICE will ensure the proper enforcement of our immigration laws against those who facilitate such smuggling or trafficking.

Prioritizing criminal prosecutions for immigration offenses committed at the border. To counter the ongoing threat to the security of the southern border, the directors of the Joint Task Forces- West, -East, and -Investigations, as well as the ICE-led Border Enforcement Security Task Forces (BESTs), are directed to plan and implement enhanced counter- network operations directed at disrupting transnational criminal organizations, focused on those involved in human smuggling.

Public Reporting of Border Apprehensions Data. In order to promote transparency, CBP and ICE will develop a standardized method for public reporting of

statistical data regarding aliens apprehended at or near the border for violating the immigration law.”

Full copy of the Fact sheet at the above link.

Link to previous “Memos Blog” here: http://immigrationcourtside.com/2017/02/18/breaking-washpost-dhs-memos-detail-ramped-up-enforcement-key-provisions-15000-more-agents-more-detention-expanded-expedited-removal-return-to-mexico-pending-hearings-target-u-s-parents-of/

Link to DHS Website giving helpful links to all relevant documents here:

https://www.dhs.gov/executive-orders-protecting-homeland

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No matter what one thinks about the substance, this time around, the DHS has done an outstanding job of providing a “one stop” web page collecting links to all the relevant DHS documents and explanations. And, it’s very defendable even for a “non-immigration-guru.”

PWS

02/21/17

Supremes Hear Case Today On Cross-Border Application Of U.S. Constitution!

https://www.washingtonpost.com/politics/courts_law/supreme-court-considers-case-of-a-shot-fired-in-us-that-killed-a-teenager-in-mexico/2017/02/19/c2935c36-f548-11e6-8d72-263470bf0401_story.html?hpid=hp_rhp-more-top-stories_no-name%3Ahomepage%2Fstory&utm_term=.47f4d29a4b1c

Robert Barnes writes in the Washington Post:

“The gun was fired in the United States. The bullet stopped 60 feet away in Mexico — tragically, in the head of a 15-year-old boy named Sergio Adrián Hernández Güereca.

Border patrol agent Jesus Mesa Jr. pulled the trigger that day six years ago in the wide concrete culvert that separates El Paso from Juarez, Mexico. On Tuesday, the Supreme Court will consider whether the Constitution gives Hernández’s parents the right to sue Mesa in American courts for killing their son.

The case comes amid a time of increasing tension and controversy over how this country polices the daily churn along the border, where essential international commerce takes place alongside narcotics trafficking and human smuggling.

Courts have struggled to deal with the national security and foreign policy implications of the case, and the Supreme Court’s precedents.

U.S. Border Patrol agent shoots Mexican teenager near border Play Video0:17
In 2010, U.S. Border Patrol Agent Jesus Mesa Jr. shot and killed 15-year-old Mexican national Sergio Hernandez while Hernandez was playing in a culvert separating Juarez, Mexico, from El Paso, Tex. A witness recorded the incident on their cell phone. (Outreach Strategists, LLC)
If Hernández had been killed inside the United States, then the case could proceed. Or if he had been a U.S. citizen, it would not have mattered that Mesa was on one side of the border and he was on the other.

But the courts so far in Hernández’s case have said the Constitution does not reach across the border — even 60 feet — to give rights to those without a previous connection to the United States.”

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The case is Hernandez v. Mesa, and either way the Court decides, it’s likely to play an important role in the effort to enhance U.S. border enforcement.

PWS

02/21/17

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