"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
U.S. law and the United Nations Convention and Protocol Relating to the Status of Refugees also require the United States to accept political asylum claims presented at the U.S. border and to not return applicants to a place where their “life or freedom would be threatened.” These conditions were, of course, not met with respect to El Salvador, Guatemala, and Honduras. The Trump administration later ceased referring to the agreements with these Central American countries as “Safe Third Country” agreements and used the term “Asylum Cooperation Agreements,” perhaps in a cynical attempt to avoid U.S. law and regulations.
What Murphy’s Complaint Reveals
According to his whistleblower complaint (footnote 1 at pages 9-10) and earlier anonymous reports he filed with the DHS Office of Inspector General, career DHS intelligence official Brian Murphy presented intelligence reports to political appointees in DHS which found “high levels of corruption, violence, and poor economic conditions” in all three countries. It was no surprise that Murphy’s complaint recounts that in December 2019, as the Trump administration was sending the first asylum seekers to Central America, then Acting Assistant Secretary of DHS Ken Cuccinelli ordered Murphy to change those reports.
According to Murphy, Cuccinelli not only claimed the reports must be false, but also attributed them to forces within the intelligence community hostile to the President. He accused “unknown ‘deep state intelligence analysts’ of compiling intelligence information to undermine President Donald J. Trump’s policy objectives with respect to asylum.” According to Murphy, Cuccinelli further ordered him to identify those “who compiled the intelligence reports and to either fire or reassign them immediately” (see page 9 of Murphy’s complaint).
With respect to the policy rationale to support spending millions of dollars on a border wall, Murphy’s complaint recounts how he was asked to reinterpret and rewrite intelligence reports about Known or Suspected Terrorists (KSTs) attempting to enter the United States from Mexico to fit the White House’s policy arguments about the need for a wall. In several meetings during 2018 and 2019, Murphy delivered intelligence to then DHS-Secretary Kirstjen Nielsen and other officials that the actual number of individually-documented KSTs was very tiny. Despite Murphy’s briefings, Nielsen and other officials in DHS issued documents and gave congressional briefings in which they greatly exaggerated the numbers, inflating a figure of 3 KSTs to over 3,000. (Murphy’s attorney has provided an amended complaint to correct an error in the original version of these events.) At one meeting in December 2019, after Murphy contradicted his superiors regarding the number of KSTs crossing into the United States, he was removed from the meeting by now interim DHS Secretary Chad Wolf (as noted in his amended complaint at pages 5-8).
Brian Murphy’s Whistleblower complaint confirms what the public has seen so often: White House officials and political appointees in federal agencies willing to hide carefully investigated and proven facts in order to substitute lies more in keeping with White House policy goals.
DHS Secretary-designate Chad Wolf is supposed to testify before a House panel later this week. Let’s hope he gives truthful answers to all the questions raised in Brian Murphy’s complaint.
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Read the rest of Susan’s article at the link.
Hey, 3 known “suspected” terrorists vs 3,000!What’s the big deal? They both contain the number “3.”
This is the type of demonstrable nonsense that the Supremes’ majority disingenuously accepts in letting the regime declare bogus “immigration emergencies” and stomp all over the legal and constitutional rights of asylum seekers! Real people die, get tortured, and have their lives destroyedbecause elitist judges have removed themselves from humanity and kowtow to a scofflaw, corrupt, immoral Executive. This is what a failing democracy and a complicit judiciary look like.
I appreciate Susan’s optimistic hope in the last paragraph. But, the chance “Wolfman,” an “illegal,” will tell Congress the truth under oath is zero.
All three branches of our failing Government have conspired to insure that his lies and illegal actions will have no meaningful consequences for him or any of his co-conspirators. Only the health, safety, and lives of his, Trump’s, Miller’s, Barr’s, Session’s, and “Cooch’s” victims are on the line.
In the meantime, refugees entitled to protection under U.S. and international law continue to be returned to dangerous and deadly conditions in the Northern Triangle without due process or indeed any process whatsoever. Indeed, with the help of disingenuous Federal Courts, the regime has effectively repealed U.S. protection laws without enacting a single piece of legislation!
One of many unfortunate “practical consequences” of the Article IIIs overall lack of critical review: In addition to having to fight the unethical and often frivolous litigation “strategies and gimmicks” of the regime and the DOJ, advocates, often serving pro bono or low bono, now bear the burden of preparing their own “Country Reports” to rebut the falsified, misleading, and highly politicized versions of country conditions presented in DOS “Country Reports.”
The latter used to be considered the “international gold standard” for determining country conditions in asylum and refugee adjudications (although true expert judges and adjudicators still viewed them critically). Now, they are little more than “political propaganda screeds” for a corrupt, White Nationalist, bigoted regime.
But, most Article IIIs have been intentionally or negligently “asleep at the switch,” still disingenuously “deferring” to these deeply defective and intentionally misleading, sometimes fictionalized, accounts. For example, almost any legitimate asylum expert would say that Jeff “Gonzo Apocalypto” Sessions’s largely fictionalized account of conditions for women in El Salvador, presented in Matter of A-B-, 27 I&N Dec. 316 (AG 2018), bears little resemble to reality.
Of course, the political branches have authority to set policy — but only within Constitutional and legal limits. Clearly, that authority to direct the activities of civil servants does not include authority to ignore facts and create false narratives in support of overtly racist, religiously bigoted, or improperly politically punitive agendas. Any Federal Judge who looks the other way when such overtly invidious objectives and motives are at work is derelict in his or her duty.
Our democracy is in deep trouble. And, to get it fully functioning and finally achieve the promise of equal justice under law, we eventually will need a better qualified Article III Judiciary.
The sooner that process starts, the better. It will take years or even generations to reform the life-tenured judiciary and get better qualified women and men on the bench. Judges who actually reflect the diversity of America and are unswervingly committed to equal justice for all under our laws.
We need Federal Judges, at all levels from the Supremes to the Immigration Courts, who actually know and understand asylum and human rights laws and their human dimension. Judges who have the courage and integrity to stand up for the rights of all persons for due process, fundamental fairness, and to be treated with human dignity, free of the overt racist bias demonstrated by Trump, Miller, and others.
In the end, the rights of foreign nationals to be treated as “persons” under our law are all of our rights! The dehumanization and “Dred Scottification” of asylum seekers by the regime and the Federal Courts diminishes each of us, including those complicit “go along to get along” judges who fail to see their own humanity in the faces and lives of those they oppress and fail to protect.
For now, they are largely getting away with it. But, eventually, somewhere down the line, there will be a “judgement of history” for their inhumanity and dereliction of duty. Of that, I am certain!
Trump Regime Chad “Wolfman” Wolf Wanted for Impersonating a Cabinet Officer Creative Commons License Credit: DonkeyHotey at https://flickr.com/photos/47422005@N04/50216420106.
If you see this man, don’t approach! Call ACLU immediately!
(CNN)A federal judge in Maryland on Friday ruled that Chad Wolf is likely unlawfully serving as acting secretary of the Department of Homeland Security and temporarily barred the Trump administration from enforcing new asylum restrictions on members of two immigration advocacy groups, according to court documents.
“In sum, the Court concludes that Plaintiffs are likely to demonstrate (former acting Homeland Security Secretary Kevin) McAleenan’s appointment was invalid under the agency’s applicable order of succession, and so he lacked the authority to amend the order of succession to ensure Wolf’s installation as Acting Secretary,” Judge Paula Xinis’ 69-page ruling said.
Xinis also wrote that “by extension, because Wolf filled the role of Acting Secretary without authority, he promulgated the challenged rules also ‘in excess of…authority,’ and not ‘in accordance with the law.'”
CNN has reached out to the department for comment.
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The preliminary finding that Wolf is likely unlawfully serving in his position came as a part of temporarily blocking two asylum rules while the lawsuit over those rules is heard. The case is ongoing.
CNN has previously reported that the Government Accountability Office found that Wolf and Ken Cuccinelli, the senior official performing the duties of deputy secretary, were appointed as part of an invalid order of succession.
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Read the rest of the article at the link.
A cruel, inhuman, and lawless regime targets America and humanity with its illegal, inhuman, racist agenda, spearheaded by a dangerous “illegal.”
The case is Casa De Maryland, Inc. v. Wolf.
Due Process Forever. The “illegals” of the Trump regime never!
Don Ayer American Lawyer Former U.S. Deputy Attorney GeneralHonorable Mimi Tsankov U.S. Immigration Judge Eastern Region Vice President National Association of Immigration Judges (“NAIJ”)Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
Elizabeth Gibson, New Due Process Army Superstar & Editor Publisher Of The Renowned Weekly “Gibson Report”reports:
Hi Everyone,
I want to flag an upcoming NYCBA webinar series on Preserving the Rule of Law in an Age of Disruption. Full disclosure, I’m on the taskforce organizing the event, but I highly recommend it. The speaker list is top-notch.
For immigration practitioners in particular, Session 4will feature IJ Tsankov, representing NAIJ, and the session will discuss “deteriorations of voting rights, asylum rights and incarceration policies, the militarization of policing and the disparate treatment of minorities by police and prosecutors, and the use of libel litigation to inflict costs on individuals and media outlets who challenge or criticize officeholders.”
It’s free for NYCBA members, $15 for other lawyers, and free for the general public (including law students and fellows). Please circulate widely.
New York City Bar Association Announces Five-Part Forum on the Rule of Law
Fall Series to Feature Former Officials, Judges, Scholars and More
New York, August 10, 2020 – The New York City Bar Association has announced a five-part Forum on the Rule of Law, to take place this fall beginning on September 15. (Full schedule and speaker list below.)
The “Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption” will feature panels of respected experts from across the political spectrum – including former government officials, judges and scholars – who will identify current challenges and threats to the rule of law in America, discuss why they matter and propose remedies. Participants will include Nicole Austin-Hillery, Donald Ayer, Mitchell Bernard, Preet Bharara, Robert Cusumano, Hon. Mary McGowan Davis, John Feerick, Charles Fried, Daniel Goldman, Harold Hongju Koh, Errol Louis, Margaret Colgate Love, David McCraw, Barbara McQuade, Dennis Parker, Myrna Perez, Hon. Jed Rakoff; Anthony Romero, Cass Sunstein, Hon. Mimi Tsankov,Joyce Vance, and Cecilia Wang. City Bar President Sheila S. Boston will introduce the series, and Professor Timothy Snyder of Yale University, author of On Tyranny and The Road to Unfreedom, will kick off the opening session with a survey of the “Threats to the Rule of Law in America.”
All sessions will be carried live on Zoom and will be open to the public free of charge ($15 for non-member lawyers):
Session 1: Threats to the Rule of Law in America: A Survey
(Sept 15, 1:00 p.m. – 4:00 p.m.)
Session 2: Checks, Balances and Oversight — the Distribution of Governmental Power and Information
(Sept 22, 1:00 p.m. – 4:00 p.m.)
Session 3: Interference with Judicial Independence and Local Law Enforcement
(October 8, 11:00 a.m. – 2:00 p.m.)
Session 4: Threats to Individual and Societal Rights
(Oct 21, 1:00 p.m. – 4:00 p.m.)
Session 5: Rebuilding the Rule of Law in America: What Can and Should the Legal Profession, Individual Lawyers and Citizens Do?
(Nov 18, 1:00 p.m. – 4:00 p.m.)
“The rule of law is the foundation of our democracy,” said City Bar President Sheila S. Boston. “It’s at the core of our Constitution that sets forth the powers of our government and the rights of our people, and the supremacy of the law in our nation ensures that no one can claim to be above it. The rule of law is what provides for transparency and equity in our society, enables us to confront challenges, foreign or domestic, and protects our security and welfare so that the right to life, liberty and the pursuit of happiness exists for us all.”
“While we hope these individual reports have been useful to our members and the public, they illustrate a broader theme – threats to the Rule of Law itself – that we believe has not received sufficient in-depth attention in either the public or the legal profession,” said Stephen L. Kass, Chair of the Task Force. “Our goal is to create an ongoing and thought-provoking discussion among the legal profession, the academic community and the public about what can and should be done to assure that America remains a nation governed by law even in a time of crisis – or especially in a time of crisis – and to identify the actions necessary for our justice system to promote the impartial, equitable and effective enforcement of those laws.”
In addition to the work of the Task Force on the Rule of Law, the City Bar has been speaking out on rule-of-law issues for decades through its committees on Federal Courts, Government Ethics, Immigration and Nationality Law, and its Task Force on National Security and Rule of Law (the predecessor of the Task Force on the Rule of Law).
Full Schedule:
Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption
This session will broadly survey recent developments that implicate, and may signal rejection of, traditional Constitutional roles and customary norms of behavior within the national government and each of its branches. Session 1 will also take an inventory of recent challenges to laws and norms involving the impartial administration of justice by law enforcement, prosecutors, the courts and the Executive, as well as threats to individual and societal rights generally and to marginalized communities in particular. Individual speakers will focus on constitutional checks and balances, politicization of the administration of justice, dramatic changes in how governmental agencies ascertain facts and make decisions, and trends in derogation of individual and societal rights, including voting rights and the promise of impartial justice for all.
Introduction: Sheila S. Boston, President, New York City Bar Association
Keynote Speaker: TimothySnyder, Professor of History, Yale University; author, Tyranny and The Road to Unfreedom
Dennis Parker, Director, National Center for Law and Economic Justice
Cass Sunstein, Professor of Law, Harvard Law School
Joyce Vance, Professor of Law, University of Alabama School of Law; former U.S. Attorney for the Northern District of Alabama
This session will focus in depth on the rule of law challenges arising out of disruption of traditional “checks and balances” among the branches of the government, the ideas of “independence” and “oversight” among the agencies of government, and the ability of the Congress or Inspectors General and “whistleblowers” to perform their functions in the face of Executive secrecy, limits on Congressional subpoena power, governmental job insecurity and public statements critical of the bureaucratic levers of government.
Keynote Speaker: Donald Ayer, Partner at Jones Day; former U.S. Deputy Attorney General under President George H.W. Bush; former Principal Deputy Solicitor General under Solicitor General Charles Fried.
Moderator: Errol Louis, CNN Political Analyst; Host of NY1’s “Inside City Hall”
Mitchell Bernard, Executive Director, National Resources Defense Council
Preet Bharara, former U .S. Attorney for the Southern District of New York
Daniel Goldman, Counsel to the House Intelligence Committee
Barbara McQuade, Professor of Law, University of Michigan Law School; former U.S. Attorney for the Eastern District of Michigan
This session will explore the effects of Executive disruption of several distinct justice systems – civil and criminal courts, the immigration court system and local law enforcement. Speakers will explore the implications of Executive interference with investigations and trials, castigation of individual judges and jurors, the deployment of military and/or federal forces in connection with local law enforcement and the issuance of pardons without traditional due diligence for civilian and military crimes.
Keynote Speaker: Charles Fried,Professor of Law at Harvard Law School; former U.S. Solicitor General under President Ronald Reagan
Margaret Colgate Love, Executive Director, Collateral Consequences Resource Center; former U.S. Pardon Attorney
Harold Hongju Koh, Sterling Professor of International Law and former Dean, Yale Law School; former Legal Adviser of the U.S. Department of State
Hon. Jed Rakoff, Senior U.S. District Court Judge, Southern District of New York
This session will survey recent trends that question the role of law and courts in the pursuit of a just and democratic society. Is adherence to the rule of law deteriorating and, if so, is that because of limitations on the ability (or inclination) of citizens and courts to prevent violations of individual rights or, more broadly, the rules governing a functioning democracy? Speakers will discuss the most salient of the deteriorations of voting rights, asylum rights and incarceration policies, the militarization of policing and the disparate treatment of minorities by police and prosecutors, and the use of libel litigation to inflict costs on individuals and media outlets who challenge or criticize officeholders.
Keynote Speaker: Anthony Romero, Executive Director, American Civil Liberties Union
Nicole Austin-Hillary, Executive Director, Human Rights Watch U.S. Program
David McCraw, Senior Vice-President and Deputy General Counsel, New York Times
Myrna Perez, Director, Voting Rights and Elections Program, Brennan Center for Justice
Hon. Mimi Tsankov, Vice President, Eastern Region, National Association of Immigration Judges
Cecilia Wang, Deputy Legal Director and Director of the Center for Democracy, American Civil Liberties Union
This session will explore the role of individual lawyers, professional organizations and citizens in protecting the rule of law as a guiding principle in American public life and in restoring the norms and standards by which we may remain a society governed by transparent rules equitably applied. Speakers will discuss the history of efforts by the organized bar to support and sustain impartial justice, the scope of pro bono work by the private bar and the private sector, the ethical standards guiding government officials and the education of the public about the necessity of acting to protect a fair and equitable rule of law. Speakers will draw on their own experience to offer lessons for members of the bar on building on one’s own background and training to promote the rule of law domestically and abroad.
Keynote Speaker: John Feerick, Fordham Law Dean Emeritus and Norris Professor of Law, Fordham Law School
Robert Cusumano, founder and CEO, Legal Horizons Foundation; former Corporate General Counsel
Harold Hongju Koh, Sterling Professor of International Law and former Dean, Yale Law School; former Legal Adviser of the U.S. Department of State
Hon. Mary McGowan Davis, Former New York Supreme Court Justice; Member, UN Committees of Independent Experts in International Humanitarian and Human Rights Law
The mission of the New York City Bar Association, which was founded in 1870 and has 25,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world.www.nycbar.org
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☠️⚠️‼️DISCLAIMER: Of course, the following are just my views, not the views of anyone on the All-Star cast of speakers at this upcoming event, the NYCBA, or anyone else of any importance whatsoever!
Don is my former partner at Jones Day and a long time colleague going back to our days together at a “Better DOJ.” Mimi and I have been friends and colleagues for years in the NAIJ, the FBA, and on the Immigration Court.
Elizabeth is my former student at Georgetown Law, a former intern at the Arlington Immigration Court, a former Judicial Law Clerk at the NY Immigration Court, and a “charter member” and leader of the “New Due Process Army” (“NDPA”). She’s still early in her career, but already establishing herself as one of the “best legal minds” in the business — in immigration, human rights, Constitutional Law, or any any other field. Elizabeth and others like her are indeed “the future of American law and the nation!”
In nearly five decades as a lawyer in the public, private, and academic sectors, I have never seen such a concerted attack on the rule of law and the institutional underpinnings of American democracy as that being carried our by the Trump regime.
Perhaps most shocking and disappointing to me has been the ineffective “pushback” and often outright complicity or encouragement offered to “the scofflaw destroyers” by our supposedly independent Article III Judiciary.
Let’s cut to the chase! The only real role of the Federal Judiciary is to protect our nation from tyranny and overreach from the the other two branches of Government. That’s it in a nutshell! If they can’t do that, they really have no purpose that couldn’t be fulfilled by the State and Local Courts.
In this role, the Article IIIs have failed — miserably! With a “disappearing Congress,” the Article IIIs, starting with the lousy performance of the Supremes, overall have been unwilling effectively to stand up to Trump’s corrupt, overtly racist, divisive, and illegal White Nationalist agenda. An agenda that is destroying our society and mockingthe Constitutional guarantees of “equal justice for all.”
I call the regime’s strategy “Dred Scottification” or “dehumanization of the other before the law.”It targets people of color, particularly immigrants and asylum seekers.
Outrageously, rather than emphatically rejecting this clearly unconstitutional “throwback to Jim Crow,” a Supremes’ majority has embraced and furthered it:from the “Muslim Bam;” to illegally letting legitimate asylum applicants rot, be abused, and die in Mexico; to allowing a deadly irrational, racist attack on the health and public benefits of the legal immigrant community; to turning their back on refugees who are are potentially being sentenced to death without any recognizable legal process; to allowing GOP politicos to blatantly suppress Black and Hispanic voting rights for corrupt political gain, the “tone-deaf” and spineless Supremes’ majority has misused its life tenure to clearly install itself on the wrong side of history — with racists and human rights abusers of the past!
We see it playing out every day; it will continue to get worse if we don’t get “regime change.” We need a functional Congress, without Mitch McConnell’s poisonous intransigence, and better Federal Judges, at all levels. Judges who actually believe in equal justice for allunder our Constitution and have the guts and intellectual integrity to stand up for it — whether the issue is voting rights, criminal justice, rights of asylum seekers, immigrants’ rights, effective Congressional oversight of the Executive, or putting an end to the “due process parody” going on daily in the “weaponized and politicized” Immigration “Courts” (that are not “courts” at all by any commonly understood meaning of the word).
For example, as American justice implodes, AG Billy Barr and several GOP Supremes have decided that the “real enemy” is “nationwide injunctions” by US District Court Judges. This is nothing short of “legal absurdism” being spouted by folks who are supposed to be functioning as “responsible public officials!”
As those who live in the “real world” of the law, peopled by actual human beings, nationwide injunctions are one of the few effective tools that defenders of our Constitution (many serving pro bono) have to stop life-threatening illegal attacks by the regime on individual rights, particularly in the field of immigration and human rights. Otherwise, the regime’s “violate the law at will and fill the courts with frivolous litigation strategy,” adopted by the DOJ and furthered by the Supremes, would simply bury and overwhelm the defenders of individual rights and the rule of law.
Without nationwide injunctions against illegal Executive actions, by the time the regime’s legal transgressions worked their way to the Supremes, most of the bodies would be dead and buried. ⚰️⚰️Indeed, we see the results of this illegal abrogation of U.S. asylum law and international protections, sans legislation or legitimate rationale, which daily returns legitimate refugees, many women and children, to harm, torture, or death, without any process whatsoever, let alone the “due process” required by the Constitution. ☠️🤮⚰️🏴☠️
You might ask yourself what purpose is served by a Supremes’ majority that has encouraged and facilitated this type of deadly “outlaw behavior” that will stain our nation’s soul and reputation forever in the eyes of history? It’s not “rocket science” — really just Con Law 101, common sense, and human decency, which seem to have fled the scene at our highest Court.
The complete breakdown of professional and ethical standards within the Executive, particularly the DOJ, that used to govern positions taken, arguments made, and evidence submitted to Federal Courts also is shocking to those of us who once served in the DOJ. Likewise, the overall failure of the Federal Courts to enforce even minimal standards of professionalism and the duty of “candor to a tribunal” for Government lawyers is surprising and disheartening.
Yes, Federal Judges sometimes “pan” or “wring their hands” about the bogus positions, disingenuous reasoning, and contemptuous actions of agencies and Government lawyers. But, they seldom, if ever, take meaningful corrective action. For Pete’s sake, both “Wolfman” and “Cooch Cooch” have been held by a Federal Judge to have been illegally appointed to their acting positions!Yet every day, these “illegals” continue to mete out injustice, and racist-driven policies on largely defenseless migrants . What kind of judiciary allows this kind of “in your face nonsense” to continue unabated?
This judicial fecklessness hasn’t been lost on folks like Billy Barr, Chad “Wolfman” Wolf, Stephen Miller, “Cooch Cooch,” Mark Morgan, Noel Francisco, and other Trump sycophants who continue to flood the Federal Courts with false narratives, bogus positions, and what many would characterize as “unadulterated BS” without meaningful consequences, other than to stretch the “battle lines” of the pro bono opposition to the breaking point. Indeed, as many fearless immigration and human rights litigators will confirm, it has become the burden of the private, usually pro bono or “low bono,” bar to “fact check” and disprove the false narratives and incomplete or misleading accounts submitted by the DOJ to the Federal Courts.
How does this “misplacing of the burden” further the interests of justice and encourage representation of the most vulnerable in our society? Clearly, it doesn’t, which is the entire point of the DOJ’s destructive and unprofessional “strategy!” Certainly, these are unmistakable signs of widespread systemic breakdown in our Federal justice system.
I urge everyone to attend and learn more about why the rule of law is “on the ropes” in today’s America, what efforts are being made to save and preserve it, and to ponder the consequences ofwhat another four years of a corrupt, scofflaw, White Nationalist regime and complicit Federal Judges could mean for everyone in America and perhaps the world!
Due Process Forever! If you don’t stand up for it, you’ll find yourself living in the “world’s highest-GNP failed state,” governed by a hereditary kakistocracy enabled by feckless “judges” more interested in their life tenure than in YOUR rights under the law!🤮☠️🏴☠️👎
“Due Process of Law”
As Reenvisioned By Trump & Billy Barr
This is what “Dred Scottification” or the “end of the rule of law” as promoted by Trump, Miller, Barr and their cronies, and enabled by a tone-deaf and “insulated from the human suffering they cause” Supremes’ majority looks like:
“Floaters — How The World’s Richest Country Responds To Asylum Seekers” EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)
“POPPYCOCK!” — U.S. District Judge Richard Leon’s Characterization Of Trump Regime’s Defense Of Asylum Seeker Abuse By DHS & Barr’s Unethical & Frivolous Arguments!
Jacqueline Thomsen Courts Reporter National Law Journal & Legal Clairvoyant
Due Process “Legal Eagle” Jacqueline Thompsen reports for the National Law Journal’:
. . . .
The federal immigration law requires that officers who conduct the interviews—in which migrants must show they face at least a 10% chance of persecution due to certain factors in order to be eligible for asylum—receive significant training on handling the applications
In responding to the administration’s claims that the border patrol agents received similar training as asylum officers, Leon wrote, “Poppycock! The training requirements cited in the government’s declaration do not come close to being ‘comparable’ to the training requirements of full asylum officers.”
“To make matters worse, the January MOA precludes any individual CBP agent from conducting credible fear interviews for longer than 180 days, meaning that CBP agents cannot gain the experience necessary to appropriately apply the complex asylum laws and regulations,” the judge added. “These procedures plainly violate Congress’s requirements.”
The Trump administration has administered a widespread crackdown on asylum proceedings, adopting a slew of policies that make it more difficult for migrants fleeing persecution in other countries to obtain protections in the United States.
The ruling comes in a lawsuit filed by attorneys with Tahirih Justice Center and the Constitutional Accountability Center, on behalf of four mothers and their seven children from Honduras, Ecuador and Mexico seeking asylum in the U.S. All of the migrants failed to pass the credible fear assessment conducted by CBP agents, which were upheld by immigration judges.
Leon also found in Monday’s ruling that it “would certainly seem unlikely” that CBP agent interviews of migrants could be considered to be “nonadversarial proceedings with a neutral decision-maker,” as required under federal regulations and guidelines. He noted that border patrol agents are considered law enforcement, and said federal authorities’ statements on measures they have taken to minimize the possibility of the interviews becoming adversarial “hardly seems sufficient.”
Leon wrote the training requirements for those conducting the credible fear assessments “are essential for a functioning asylum process, which is why Congress required them,” describing the legal framework surrounding U.S. immigration, asylum, and other similar processes as “complex, to say the least.”
“After all, an asylum officer who is not adequately trained in the applicable legal requirements is less likely to ask the right questions of an asylum seeker, or for that matter, to gather the facts necessary to make an accurate determination of whether an asylum seeker has a credible fear of persecution,” he continued. “Indeed, the record here contains several examples of the effects of inadequate training: one CBP agent failed to follow up with questions about an asylum-seeking plaintiff’s sexual abuse, and another failed to inquire into another asylum-seeking plaintiffs husband’s murder investigation.”
Leon also found the immigrants in the case would face irreparable harm, if he did not issue a preliminary injunction to block their removal from the U.S.
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Why isn’t it an ethical and professional problem for “Billy the Bigot’s” DOJ to make nonsense arguments to a Federal Judge in support of unlawful actions? Private members of the bar arguing “poppycock” in a civil case could well find themselves referred for disciplinary action. Why are Cabinet Officials and their attorneys exempt from normal professional and ethical considerations?
If only more judges at all levels could write with such clarity and in plain English!
The rejection at the “credible fear” stage of the bona fide asylum claims described by Judge Leon is beyond appalling! These are essentially totally and intentionally unqualified and biased U.S. Government employees committing “crimes against humanity” and getting away with it! These aren’t “legal errors.” It’s systemic malfeasance, otherwise known as “malicious incompetence” with a heavy dose of racism and misogyny thrown in for a good measure!
If substantiated during the immigration hearing process that should have taken place, all these applicants should have been “slam dunk” grants of asylum, withholding of removal, and/or relief under the Convention Against Torture in a properly functioning justice system. Instead, but for the efforts of pro bono counsel, they would have been illegally returned to harm, torture, and/or death with no legitimate process at all!
No wonder “Billy the Bigot’s” Immigration Courts are out of control and the borders are a deadly mess when individuals who with proper screening and access to competent counsel should have been quickly legally admitted to the U.S. under protection laws are instead being “rejected” by biased and unqualified Border Patrol Agents impersonating Asylum Officers!
Here’s my favorite quote (among many) from Judge Leon’s decision:
Of course, the Government has a strong interest in the “prompt execution of removal orders.” Nken,556 U.S. at 436. However, the Government and public can have little interest in executing removal orders that are based on statutory violations, League of Women Voters of U.S. v. I,{ewby,838 F.3d l,12 (D.C. Cir. 2016) (“There is generally no public interest in the perpetuation of unlawful agency action.”), especially where those statutory violations may compromise the accuracy of such removal orders. R.I.L.-R. v Johnson, 80 F. Supp. 3d 164, 191 (D.D.C. 2015); Grace, 344 F. Supp. 3d at 14144 Indeed, the public has an interest “in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm.” Nken,556 U.S. at 436. As such, the balance of interests here weighs in favor of preliminary injunctive relief.
The last point, “the public has an interest ‘in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm,’” Nken,556 U.S. at 436, has basically been ignored by the Supremes’ majority recently in sending refugees to their death or into harm’s way without any semblance of due process, based on various lies, distortions, and racist schemes by the Trump regime intentionally mischaracterizing “national security” and “national emergency.” As Judge Leon would say: “Poppycock!”
Perversely, the Trump regime and the Supremes’ have made execution of illegal removal orders, resulting from racist White Nationalist schemes, a “national priority.” Truly, this is a system broken from the top down in need of immediate repair and injections of intellectually honesty, moral courage, and ethics — something that seems “out of vogue” in all three branches of our failing democracy these days
I recently had a conversation with Jacqueline in which she basically predicted this decision based on her study of the arguments and trends among U.S. District Judges, regardless of philosophy or appointing party, in DC. Nice going Jacqueline! Congrats on your clairvoyance!
Those with NLJ access (anyone can get “three free” per month by registering) can read the complete article at the link.
Judge Leon’s linear, straightforward, and “no BS” treatment of the regime’s absurdist, unethical, and scofflaw legal “defense” of essentially “crimes against humanity” contrasts sharply with the disingenuous and essentially “brain dead” treatment of similar BS by the “JR Five” on the Supremes. There, the patently unconstitutional and illegal (not to mention immoral) agenda of neo-Nazi racist Stephen Miller and the unethical maneuvers of SG Noel Francisco are often wrongfully rewarded. By contrast, the the Supremes’ majority routinely trashes the legal and constitutional rights of vulnerable people of color, particularly asylum seekers, migrants, and voters beneath an avalanche of bogus “Dred Scottification” jurisprudence.
Additionally, Judge Leon is “onto something” that has been swept under the carpet by the Supremes and the Circuit Courts when he questions “whether CBP agents could ever lawfully be given authority to conduct asylum interviews and adjudicate asylum claims, see Compl. ‘]Tfl 108-09, it would certainly seem unlikely under these circumstances. After all, law enforcement officers typically “function as adversaries” whose role is “to investigate criminal activity, to locate and arrest those who violate our laws, and to facilitate the charging and bringing of such persons to trial.” New Jersey v T.L.O.,469 U.S. 325,349 (1985) (Powell, J., concurring).”
Similarly, many of us have argued that Immigration “Judges” who work for uber-enforcer and Trump shill “Billy the Bigot” and have been “repurposed” and “weaponized” into DHS enforcement support staff can not possibly be the “fair and impartial” quasi-judicial adjudicators required by the Due Process Clause of the Fifth Amendment!
Better Justices and better Federal Judges for a better America, particularly for people of color and other minorities. It’s actually quite simple and straightforward. It starts with throwing Trump and the GOP out of every political office this Fall.
Then, we need some real Justices and Federal Judges who will stand against systemic racism and enforce equal justice in America!Not, rocket science! Just knowledge of the Constitution, awareness of human rights and immigrants’ rights, a focus on racial justice, courage to speak truth to power, and a demonstrated commitment to human dignity and human decency.One could easily wonder why those haven’t been the minimal requirements for Federal judicial service in the past.
Past is past, particularly for life-tenured judges. But, America can’t afford any more disastrous judicial appointments, at any level, who lack the guts and human decency to stand up to scofflaw, neo-fascist racists like Trump, Miller, and their cronies.
The top to bottom overall failure of the American judiciary to put an end to unconstitutional and unfair racism and “Dred Scottification” of “the other” in our society is aiding and abetting the dark, lawless forces aligned with the regime destabilizing our country and ripping it apart! No more!
She was one of the most recognizable activists in Nicaragua, protesting a government that has jailed and killed its opponents. Her photo ran in national newspapers; one called her the “face of the rebellion.” Her video of police firing at student protesters went viral. Her confrontations with the government were cited by the U.S. State Department.
Valeska Alemán, 22, paid a price for that notoriety. She was detained twice. Interrogators pried off her toenails. When she decided to leave the country, the United States seemed a natural destination: The Trump administration has been vocal in its opposition to Nicaragua’s crackdown — and its support of the country’s young protesters.
But by the time Alemán arrived at the U.S. border in July, the administration had launched a pandemic-era policy that sends Nicaraguans directly back to their country without letting them apply for asylum. Seventeen days after crossing into Texas, she was put on a plane back to Managua with more than 100 other Nicaraguans, almost all of them opponents of President Daniel Ortega.
Her backpack was full of documents to show U.S. immigration officials that the government appeared ready to kill her. The officials wouldn’t look at them. When she landed back in Nicaragua, it felt as if she was carrying a ticking bomb, proof that she was trying to flee and accuse the government of abuse.
“I thought, ‘Okay, so they’re going to throw me straight back in jail,’ ” Alemán said. “ ‘I’m going to be tortured all over again.’ ”
Another expelled asylum seeker, Moises Alberto Ortega Valdivia, 38, swallowed five pages of his asylum paperwork, panicked that Nicaraguan police would find it.
Since taking control in 2017, the Trump administration has narrowed the pool of people who qualify for asylum and sent tens of thousands of applicants back to Mexico to await their hearings from squalid tent camps and shelters.
During the coronavirus pandemic, the administration has gone further, effectively shutting the asylum system down. Most Central American applicants are simply escorted back to Mexico. But Nicaraguans — including political protesters to whom the United States has given rhetorical support — are flown back to the country they tried to escape.
The administration is using a public health order known as 42 U.S.C. that cites “the danger to the public health” of migrants to justify the asylum system’s closure. Mexico has agreed to accept Salvadorans, Guatemalans and Hondurans. Other nations, such as Cuba and Venezuela, have refused to accept chartered U.S. deportation flights of their own citizens.
In the case of Nicaragua, the United States is sending asylum seekers back to a country the State Department describes as violently repressive.
“Throughout Nicaragua, armed and violent uniformed police or civilians in plain clothes acting as police (‘para-police’) continue to target anyone considered to be in opposition to the rule of President Ortega,” the department says in a travel warning. “The government and its affiliated armed groups have been reported to arbitrarily detain pro-democracy protestors, with credible claims of torture and disappearances.”
U.S. Customs and Border Protection did not respond to multiple requests for comment. In a statement, the State Department said it “condemns all forms of political oppression, especially that orchestrated by the corrupt Ortega regime.” But it would not comment on the expulsion of Nicaraguan asylum seekers.
Alemán traveled with a family of Nicaraguan asylum seekers to the Texas border. All were university graduates and students of international affairs. Before they left, they reviewed the asylum laws on a U.S. government website.
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Read the rest of Kevin’s article at the link.
Section 208 of the Immigration & Nationality Act says:
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.
Very clear. What happened to refugee Valeska Alemán and other asylum seekers at the hands of the Trump regime was totally illegal (not to mention immoral); essentially a “crime against humanity” for which Trump, Miller, Wolfman, and the other “perps” should be held accountable.
But, this is Trump’s America where a majority of the Roberts’ Court favors White Supremacy, racism, and crimes against humanity over the Constitutional, statutory, and human rights of people of color. It’s called “Dred Scottification.”It’s a national and international disgrace that will stain our nation forever!
Think racial justice and equal justice in America will be achieved without a better Executive, throwing the GOP out of legislative power, and better Federal Judges? Guess again!
Michelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network, Inc. (“CLINIC”)
NDPA Superstar ⭐️ Michelle Mendez 🎖 reports for CLINIC 🏆:
New Legal Challenge: CARECEN v. Cuccinelli
Greetings,
Representing the CARECEN and seven people with Temporary Protected Status, CLINIC, Democracy Forward, Montagut & Sobral PC and Debevoise & Plimpton LLP sued the Trump administration to block a policy issued by an unauthorized federal executive, U.S. Citizenship and Immigration Services’ Acting Director Ken Cuccinelli. The lawsuit, filed today in the U.S. District Court for the District of Columbia, seeks to stop the Trump administration from denying access to lawful permanent residency to people with TPS who legally qualify for green cards thanks to their U.S. citizen spouse or child. Cuccinelli’s action, couched as a mere “update” to the agency’s policy manual, eliminates the ability for TPS beneficiaries with prior removal orders to apply to adjust status with USCIS even though they departed the United States and returned with USCIS permission. The suit challenges the policy change as unlawful under the Administrative Procedure Act and the Constitution’s Due Process Clause, and because its author, Ken Cuccinelli, was not legally appointed to direct USCIS.
Embracing the Gospel value of welcoming the stranger, CLINIC promotes the dignity and protects the rights of immigrants in partnership with a dedicated network of Catholic and community legal immigration programs.
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Remember, folks, no human being is illegal. But, Ken “Cooch Cooch” Cuccinelli is an “illegal” serving in a rogue regime!
Many thanks to all of our NDPA fighters who brought this much needed suit!
And, think of the grotesque stupidity, not to mention cruelty and illegality, behind this USCIS “policy.” Those in TPS are part of our community. Many have been here for years, even decades, working, paying taxes, and raising families (including many US citizens). Many are now fully qualified to adjust to “green card” status under existing law, thereby regularizing their status and getting out of “limbo.”
With LPR status, and eventually US citizenship, they can reach their full potential as humans and as members of our society. That’s a “win-win” that helps us move forward and prosper as a nation.
Yet, “Cooch Cooch” and the rest of the maliciously incompetent kakistocracy at DHS stay up nights thinking of ways to “stiff” our friends and neighbors in the TPS community and to keep them from regularizing their status and achieving their full human and economic potential, not to mention traumatizing US citizen family members. Talk about fraud, waste, and abuse in Government!
Incidentally, current TPS holders would all be entitled to full Immigration Court hearings if the regime attempted to expel them by force after ending TPS. Most have strong claims to relief, from cancellation of removal to asylum and other forms of protection.
Many could apply for adjustment of status in Immigration Court and individually litigate no matter what the USCIS “policy.” With a known backlog of approximately 1.5 million cases and perhaps another 500,000 to 1 million “lost in the docket dysfunction at EOIR,” their Immigration Court dates could easily be a decade, or “2.5 Administrations” from now. So, the Cuccinelli policy is basically a way of inflicting some cruelty and racist harassment on TPS’ers eligible to immigrate, without any realistic chance of “enforced removal.” Wow, talk about using a system already FUBAR’ed, to a major extent by this regime, as an illegal “weapon against humanity!”
Where, or where, have the Article IIIs been in taking a strong, unified stand against racism and stupidity (legal term “unreasonable behavior”) by the Trump immigration regime? Cooch Cooch was determined by a Federal Court to be illegally serving at USCIS! Yet, he contemptuously remains in office inflicting illegal harm and suffering on migrants, chewing up legal resources, and insultingly wasting the time of the Federal Courts.
I sort of understand the feckless performance of the Immigration Courts, wholly owned by “Billy the Bigot.” But, what’s the purpose of an independent Article III Judiciary that performs like it’s the “King’s Court” — unwilling or unable to defend our Constitution, humanity, or even their own prerogatives against the tyranny of a dangerous scofflaw moron like Trump?
What’s their excuse for drawing their salaries? The overall systemic failure of the Article III Judiciary, starting with a tone-deaf, racially insensitive, and often eagerly complicit Supreme’s majority, in the face of Trump’s White Nationalist authoritarianism, demands serious national re-examination of the role, qualities, and character we should expect from our Article III Judiciary, assuming that our nation survives the current legal and moral debacle led by Trump and enabled by judges who failed to do their duties!
“When the Trump Administration attacks families, we will hold it accountable, be it for the next few months or the next 4 years.”
That’s the key! With far too many public officials in all three branches spinelessly “tanking” on their constitutional duties to protect our rights and defend humanity from tyranny, the soldiers of the NDPA are among the courageous defenders of democracy and leaders of the long and challenging climb to equal justice and national decency. Support them by throwing the GOP — the anti-American party of bias, hate, lies, racism, institutionalized stupidity, and chaos — out at every level of government!
We’ll never get to equal justice for all with politicos, legislators, judges, and bureaucrats who don’t believe in it! Folks who quote and “honor” MLK, Jr., one day of the year and spend the rest of it trampling on his dreams and trashing his values!
Thanks to my good friend, colleague, and “NDPA General” Michelle and others for standing up to “Cooch the Illegal” and his toxic anti-American, scofflaw efforts to destroy our nation!
The Round Table of Former Immigration Judges is composed of 46 former Immigration Judges and Appellate Immigration Judges of the Board of Immigration Appeals. We were appointed and served under both Republican and Democratic administrations. We have centuries of combined experience adjudicating asylum applications and appeals. Our members include nationally- respected experts on asylum law; many regularly lecture at law schools and conferences and author articles on the topic.
We view the proposed rule as an improper attempt to legislate through rule making. The proposed rule is inconsistent with Congressional intent and with our nation’s obligations under international law. The rule is also overly broad, and as worded, could be applied to virtually anyone. It requires determinations to be made based on pure speculation by officials lacking any required expertise in the subject. And the rule fails to consider much lesser, more humane approaches to address the issue.
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Read our complete comment at the above link.
Gimmicks, cruelty, illegally, gimmicks, cruelty, illegality. Over and over the regime targets asylum seekers with “crimes against humanity.”
Although all DHS statistics should be regarded as suspect, the recent assertions that the regime”s killer tactics are protecting America against COVID appear particularly bogus — especially given the Trump regime’s gross failure to protect Americans from the pandemic and the frequent myths and false claims blabbered by Trump in a pathetic attempt to downplay the disaster caused by his stupidity and malicious incompetence.
The net result of all these “Miller-hatched” cruel gimmicks to eliminate legal immigration (without legislative authority) appears to be steadily increasing levels of extralegal immigration. And that’s just the folks who get caught. Who knows how many get through and simply get lost in the interior?So, instead of a rational legal immigration and refugee system that encourages screening, testing where necessary, taxpaying, and data collection, thanks to the stupidity and cruelty of Trump and Miller, the fecklessness of Congress, and the complicity of the Supremes, we have created a larger than ever extralegal immigration system.
Diminishing ourselves as a nation,🤮 won’t stop human migration🗽!
Richard A. Clarke served on the National Security Council for Presidents George H.W. Bush, Bill Clinton and George W. Bush.
President Trump has, often intentionally, damaged essential federal departments and agencies, driving from their ranks thousands of career civil servants who are global experts and national treasures. The country is seeing the results play out at the Centers for Disease Control and Prevention, but such damage has happened across the federal bureaucracy.
No national institution has been more damaged than the Department of Homeland Security. The youngest of the federal departments, the DHS is among the largest by employee count, ranking just below the Defense Department and Veterans Affairs. It was created in 2003 by smashing together 17 agencies from five departments in an ill-conceived response to the 9/11 terrorist attacks. Its divisions and agencies are now largely leaderless, because the White House refuses to nominate senior managers to replace those who have left. Quick, who is the secretary of homeland security?
You get my point.
Trump has done far more damage to the DHS, however, than leaving it leaderless. He has branded it as the department that cages children, swoops innocent citizens off U.S. streets, sends warriors dressed for the apocalypse to deal with protests, hunts down hard-working people doing “essential jobs” to forcibly deport them, and harasses foreign students at leading universities. The DHS has become synonymous with unsympathetic government overreach, malevolence and dysfunction.
For the patriotic, underpaid Americans working hard in the agencies of the DHS, what Trump has done to their reputations is a tragedy. The department, however, was doomed from the start. When such an agency was proposed before the Sept. 11 attacks, I was working in the White House, where I coordinated many “homeland” issues for almost a decade under President Bill Clinton and, later, President George W. Bush. Blocking the creation of the DHS was one of the few things on which Vice President Dick Cheney and I agreed. We thought that such a department would be too large, too diverse in function and too difficult to integrate into a well-functioning institution.
Congressional leaders, however, wanted to “do something” after 9/11, and it became impossible for the Bush administration to maintain its opposition to the idea of a homeland security agency. Instead, the Bush administration embraced it and quickly merged a raft of agencies ripped from their home departments. The new department never really came together.
For more than a decade, reports from the Government Accountability Office, think tanks and congressional committees have documented the failures of the DHS to coalesce into an effective entity. Its image steadily declined and was not helped by the popular television series “Homeland,” which despite its name depicted a dark world of CIA intrigue, portraying missions and functions that the DHS never actually had.. Contrary to popular belief, Homeland Security has never been the government’s lead counterterrorism entity. The FBI, part of the Justice Department, leads counterterrorism efforts within the United States.
The next administration would be well advised not to try to make the existing DHS structure work, for it will end up as another presidential administration that has failed in that task. Instead, the department should be reimagined — perhaps as part of a Reinventing Government effort, the first of which was led by then-Vice President Al Gore — with more manageable and mission-consistent entities. It should also shed its Orwellian name.
Federal departments and agencies develop personalities and images from their mission, and they attract people who identify with those personas. These identities are almost immutable, but new organizational designs and branding can reinvigorate and redirect agencies. Breaking up the DHS could have positive results.
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Read the rest of the article at the link.
You read it Courtside long ago: No mission, no leadership, no values, no discipline, no decency.DHS as currently constituted is a dysfunctional mess that America won’t miss.
Break it up, reassign the truly necessary functions, reduce the funding, and use the money saved by eliminating detention, grotesque mismanagement and maladministration, stupid walls, undisciplined and counterproductive, “civil” enforcement, and other demonstrably destructive functions for something more constructive. Yes, if you strip out the neo-Nazi wannabes, racists, and incompetents, there is some real talent there. Some of that talent passed through my courtroom in Arlington. Some of it is in the Asylum Office and at USCIS. There is some in the anti-smuggling and fraud detection programs. But, it’s totally wasted in the current corrupt dysfunctional configuration. Indeed, the totally toxic reputation of DHS under Trump actually hinders the useful functions.
This November, vote like your life depends on it! Because it does!
Trump administration officials said during a federal court hearing Friday that they have not “granted nor rejected” any applications for a program designed to protect young undocumented immigrants from deportation, but rather have put them “on hold” as the government discusses the future of the program.
The virtual hearing in the U.S. District Court in Maryland was the first time the administration addressed reports that the Department of Homeland Security was not accepting applications for the Deferred Action for Childhood Arrivals (DACA) program — despite a recent Supreme Court ruling and a federal judge’s order requiring the government to resume accepting applications.
“Although the applications will be received by the department, they will be neither granted nor rejected, and instead will be held, placed into a bucket pending a policy consideration that takes place and that now I can tell you is still ongoing at the department,” said Stephen Pezzi, a lawyer with the Justice Department.
Pezzi also said that “some or all” of the applications from DACA beneficiaries looking to leave the country and return lawfully had been wrongly rejected when they should have been held.
“Going forward, in just the last few hours, it has been straightened out at least prospectively such that any request for DACA-based advance parole will also be held in the pending bucket,” Pezzi said.
[[Supreme Court blocks Trump’s bid to end DACA, a win for undocumented ‘dreamers’]]
U.S. District Judge Paul Grimm, who ordered last week that the government comply with court directives to restore the DACA program, ruled Friday that the Trump administration must clarify the program’s status to the public within 30 days. He instructed Pezzi to confirm by next Friday whether the government could commit to updating its U.S. Citizenship and Immigration Services website and sending receipts to DACA applicants who are confused about whether their applications have been processed.
Grimm also instructed the plaintiffs and defendants to propose a schedule for a briefing on whether the government should be held in contempt.
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Read the rest of Emily’s article at the link.
Emily, a former Post intern, is a relatively new addition to the reporting staff, but already showing “superstar potential.” She has shared in a Pulitzer Prize as part of a Team for Breaking News Reporting. Let’s hope that she keeps reporting on immigration issues as part of her local news beat!
Time to start taking names and throwing the criminals on the DHS payroll in jail! Their overall performance on DACA — a highly beneficial program favored by the vast majority of Americans that is actually helping us get through the pandemic — would have been a “no brainer” for a competent Administration. Instead, the “malicious incompetents” at DHS are showing why under their rancid leadership USCIS has become morally as well as fiscally bankrupt.
“Humanity in a bucket” is a very accurate description of the Trump regime’s racist, xenophobic, intentionally cruel, and, perhaps most of all, dehumanizing immigration polices. They diminish the humanity of every American every day they remain in office.
CASA court just ordered DHS to comply with SCOTUS decision and begin accepting new DACA immediately!
The Court ADJUDGES AND DECLARES that the DACA rescission and actions taken by Defendants to rescind the DACA policy are arbitrary and capricious, in violation of 5 U.S.C. § 706(2)(A);1
The rescission of the DACA policy is VACATED, and the policy is restored to its pre-September 5, 2017 status;2
Defendants and their agents, servants, employees, attorneys, and all persons in active concert or participation with any of them, are ENJOINED from implementing or enforcing the DACA rescission and from taking any other action to rescind DACA that is not in compliance with applicable law;3
Plaintiff’s estoppel claim and request for an injunction as it pertains to DACA’s information-sharing policies are DENIED;4
Right now, USCIS isn’t adjudicating much of anything. So, it might take throwing Wolf, Cuccinelli, and other DHS scofflaws in jail for contempt to get this program off the ground.
President Trump is venturing onto increasingly shaky legal ground as officials reject new applications for the Deferred Action for Childhood Arrivals program, sidestepping a Supreme Court ruling reinstating DACA, legal experts and lawmakers say.
The court ruled last month that the Trump administration hadn’t followed federal procedural law or justified terminating DACA in 2017, calling the rescission “arbitrary and capricious.”
The court did not decide on Trump’s executive authority to rescind DACA, and offered the administration a road map for how to try to end it for good.
But despite threatening another attempt to shut down the program, the president hasn’t tried again. Monday, 25 days after the ruling, was the deadline for the administration to file for a rehearing — it didn’t.
The White House’s refusal to either act or restart the program sets up a potential showdown with the court with little precedent, says Muneer Ahmad, clinical professor at Yale Law School, who was involved in a New York-based DACA suit against the administration.
“The longer the administration refuses to accept and adjudicate new applications and declines to issue a new rescission order,” said Ahmad, “the more of a legal concern that becomes.”
The White House declined to respond to requests for comment Thursday, and the Justice Department did not immediately respond.
Immediately after the court ruled, Trump and his officials rejected the decision as “politically charged.”
“The Supreme Court asked us to resubmit on DACA, nothing was lost or won,” Trump tweeted, trying to reframe the high-profile defeat on immigration, his signature campaign issue.
Since then, the administration has refused to process new DACA applications, advocates and lawmakers say, despite widespread legal consensus — including from Trump’s supporters and former officials — that slow-rolling the restarting of the program violates the court’s order.
On Tuesday, Democratic Sens. Kamala Harris of California and Dick Durbin of Illinois, as well as 31 other senators, wrote to the acting Homeland Security secretary demanding the department “immediately comply” with the court’s ruling and “fully reinstate DACA protections, as the Court’s decision unequivocally requires.”
The Citizenship and Immigration Services agency — which administers DACA — has rejected new applications, or confirmed receipt but then not acted on them, according to lawyers. Jaclyn Kelley-Widmer, associate clinical professor of law at Cornell law school and an immigration attorney, said USCIS is sending these new applicants notices saying the agency is “not accepting initial filings.”
Meanwhile, other USCIS employees say they’ve received no guidance on the Supreme Court ruling or new DACA applications. The agency did not immediately respond to requests for comment Thursday.
The Trump administration has eschewed traditional policymaking and repeatedly sought to end-run Congress with immigration orders. Yet the president’s comments in recent days have only added to the confusion.
Last Friday in an interview with Telemundo, he contradicted himself, saying he would be issuing an executive order on DACA, then saying instead it was a bill that would “give them a road to citizenship.” The White House followed up with a statement saying Trump supports a legislative solution for DACA, potentially including citizenship, but not “amnesty.”
Then on Tuesday in a Rose Garden press conference, Trump said he’s working on DACA “because we want to make people happy.”
“We’ll be taking care of people from DACA in a very Republican way,” he said. “I’ve spoken to many Republicans, and some would like to leave it out, but, really, they understand that it’s the right thing to do.”
In 2017, then-Atty. Gen. Jeff Sessions declared DACA unconstitutional and lower courts issued orders that froze the program while the Trump administration appealed directly to the Supreme Court.
In a statement published the day after the ruling, USCIS deputy director for policy Joseph Edlow said that the decision “merely delays the President’s lawful ability to end the illegal Deferred Action for Childhood Arrivals amnesty program.”
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Read the rest of Molly’s article at the link.
Pretty much what one might expect from a scofflaw and often openly contemptuous regime. So far, Justices Alito, Thomas, Gorsuch, and Kavanaugh (and sometimes CJ Roberts, although not in this particular case) have fairly consistently been more than willing to “paper over” the various obvious pretexts for the Trump regime’s racist attacks on asylum seekers and migrants of color. At a point where it boils over into direct contempt for the Article IIIs, will they continue to cover up?
Of course, the real problem here is that there never has been any legitimate reason for terminating DACA. None! That’s going to present a problem if and when the regime gets to cooking up its bogus reasons and obvious pretexts for their racist scheme to dump on Dreamers. At least it will in some lower Federal Courts.
On the other hand, to date, the Supremes’ majority has taken a “head in the sand” approach to invidious discrimination and blatant racism in the actions of the Trump regime, particularly as it relates too migrants.
Here’s the deal. America is reelingfrom Trump’s mishandling of the pandemic, his divisive racist rhetoric, and his lack of a coherent plan for reopening schools. But, in the midst of these unresolved crises, Trump’s White Nationalist, xenophobic regime found time to issue, without consultation, absurdist rules threatening foreign students whose schools offered only online leaning because of legitimate health and safety concerns for the students, faculty, and staff.
This idiotic, illegal missive threatened to upend the U.S. higher education system and put a $40 billion hit on our economy during a period of unprecedented unemployment and economic disruption. Consequently, numerous educational institutions across America banded together, developed emergency legal strategies, and filed suits against the Trump kakistocracy in numerous Federal Courts.
This, in turn, tied up legal resources that could have been used more productively, as well as further clogging Federal Court dockets already overwhelmed with various unnecessary suits caused by Trump’s maliciously incompetent attack on immigration. It also tied up Government resources that might better have been used solving real problems.
In the meantime, the problem of abuse of our legal system and the organs of Government by a maliciously incompetent Administration advancing a toxic and unconstitutional White Nationalist agenda remains unresolved. Indeed, the often tone-deaf approach of the Supremes to these gross abuses, particularly in the areas of immigration and human rights, has actually been a large part of the problem.
What could we accomplish if the time and resources now used to prevent a “rogue Government” from destroying democracy were instead devoted to developing constructive, cooperative solutions to our festering national problems? What if we harnessed the power of migration for human progress, rather than futilely and wastefully working at cross purposes with perhaps the oldest and most powerful human phenomenon?🗽⚖️
This November, say “No” to the White Nationalist Kakistocracy!
In their introduction, the proposed regulations misstate the Congressional intent behind our asylum laws.2 Since 1980, our nation’s asylum laws are neither an expression of foreign policy nor an assertion of the right to protect resources or citizens. It is for this reason that the notice of proposed rulemaking must cite a case from 1972 that did not address asylum at all in order to find support for its claim.
The intent of Congress in enacting the 1980 Refugee Act was to bring our country’s asylum laws into accordance with our international treaty obligations, specifically by eliminating the above- stated biases from such determinations. For the past 40 years, our laws require us to grant asylum to all who qualify regardless of foreign policy or other concerns. Furthermore, the international treaties were intentionally left broad enough in their language to allow adjudicators flexibility to provide protection in response to whatever types of harm creative persecutors might de- vise. In choosing to adopt the precise language of those treaties, Congress adopted the same flexibility. See e.g. Murray v. The Schooner Charming Betsy, 6 U.S. 64 (1804), pursuant to which national statutes should be interpreted in such a way as to not conflict with international laws.
The proposed rules are impermissibly arbitrary and capricious. They attempt to overcome, as opposed to interpret, the clear meaning of our asylum statutes. Rather than interpret the views of Congress, the proposed rules seek to replace them in furtherance of the strongly anti-immigrant views of the administration they serve.3 And that they seek to do so in an election year, for political gain, is clear.
In attempting to stifle clear Congressional intent in service of its own political motives, the ad- ministration has proposed rules that are ultra vires to the statute.
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Read our full comment at the above link.
Special thanks to the following Round Table Team that took the lead in drafting this comment (listed alphabetically):
Judge Jeffrey Chase
Judge Bruce Einhorn
Judge Rebecca Jamil
Judge Carol King
Judge Lory Diana Rosenberg
Judge Ilyce Shugall
Due Process Forever! Crimes Against Humanity, Never!
The Trump administration is turning legal immigrants into undocumented ones.
That is, the “show me your papers” administration has literally switched off printers needed to generate those “papers.”
Without telling Congress, the administration has scaled back the printing of documents it has already promised to immigrants — including green cards, the wallet-size I.D.’s legal permanent residents must carry everywhere to prove they are in the United States lawfully.
In mid-June, U.S. Citizenship and Immigration Services’ contract ended with the company that had been printing these documents. Production was slated to be insourced, but “the agency’s financial situation,” USCIS said Thursday, prompted a hiring freeze that required it to ratchet down printing.
. . . .
USCIS, which is funded almost entirely by fees, is undergoing a budget crisis, largely caused by financial mismanagement by political leadership. The printing disruptions are no doubt a preview of chaos to come if the agency furloughs about 70 percent of its workforce, as it has said it will do in a few weeks absent a congressional bailout.
In recent conversations with congressional staffers about cutting contracts to save money, USCIS mentioned only one contract, for a different division, that was being reduced — and made no reference to this printing contract, according to a person who took part in those discussions. The company that had this contract, Logistics Systems Inc., did not respond to emails and calls this week requesting comment.
The administration has taken other steps in recent months that curb immigration. Presidential executive orders have almost entirely ended issuance of green cards and work-based visas for people applying from outside the country; red tape and bureaucracy have slowed the process for those applying from within U.S. borders. For a while, the agency refused to forward files from one office to another. The centers that collect necessary biometric data remain shuttered.
These pipeline delays are likely to dramatically reduce the number of green cards ultimately approved and issued this year.
Under normal circumstances, immigrants who need proof of legal residency but haven’t yet received their green card would have an alternative: get a special passport stamp from USCIS. But amid covid-related changes, applicants must provide evidence of a “critical need,” with little guidance about what that means.
“The bottom line is that applicants pay huge filing fees, and it appears that these fees have apparently been either squandered through mismanagement or diverted to enforcement-focused initiatives, to the great detriment of applicants as well as the overall efficiency of the immigration process,” says Anis Saleh, an immigration attorney in Coral Gables, Fla. “The administration has accomplished its goal of shutting down legal immigration without actually changing the law.”
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Read the rest of Catherine’s article at the link.
It should come as no surprise that an agency under unqualified White Nationalist Ken “Cooch Cooch” Cuccinelli is being run into the ground and has lost its mission through misdirection and mismanagement. That’s basically Cooch’s story in a nutshell as those of us know in Virginia, where we count ourselves most fortunate not to have him as our Governor.
I have written previously about how the regime’s “malicious incompetence” has bankrupted once self-sustaining USCIS while destroying our legal immigration and asylum systems that benefit the US and individual migrants and refugees in numerous ways. I made the rather obvious point that the House Dems should not bail out this regime on USCIS, but rather require that the money be found by reprograming funds from bloated, wasteful, ineffective, and inhumane DHS enforcement programs, starting with the wall.
The solution to maliciously incompetent freeloaders like the Trump immigration kakistocracy is not to provide more bailouts as rewards for their misconduct and mismanagement.
And, we haven’t really gotten much return on that investment, Here’s a key quote from the AIC Report:
What has this spending bought? The United States currently has roughly 700 miles of fencing along the Southern border, record levels of staff for ICE and CBP, as well as a fleet of drones, among other resources. Some of these resources have been spent on ill-conceived projects, such as the $1 billion attempt to construct a “virtual fence” along the Southwest border, a project initiated in 2005 that was later scrapped for being ineffective and too costly. CBP announced a similar project in July 2020 to install a total of 200 “Autonomous Surveillance Towers” along remote areas of the southern border at a reported cost of several hundred million dollars.
Even with record level spending on enforcement, enforcement alone is not sufficient to address the challenges of undocumented migration. It also has significant unintended consequences; according to U.S. Border Patrol statistics, the Southwest border witnesses close to one death per day. All of these efforts that have accumulated in the name of security, however, do not necessarily measure border security properly, or make the border more secure. It is past time for the United States to turn away from costly and haphazard efforts to secure the border and instead focus on reining in the costs of border enforcement.
I argue that the regime’s focus on removing folks who were peacefully residing in the U.S. and contributing to our economy, many with U.S. citizen family members who are then left in dire straits, has actually been detrimental to America, in addition to killing the Immigration Courts.
Likewise, the shutdown of our legal refugee, asylum, and immigration systems without legislation has not only placed our nation among the ranks of human rights violators and harmed or endangered human lives, but also deprived us of individuals with a powerful history of making outsized contributions to our society and our economy.
I doubt that a rational immigration policy and system that looked at the real national interest, rather than the mythologized White Nationalist, fundamentally racist version of it, would require such a huge, yet largely counterproductive, enforcement apparatus. At a minimum, costs for civil detention and removals could be cut substantially in a better system.
Due Process Forever! More public welfare handouts for the kakistocracy, never!
CANAL A MEDIA HOLDING, LLC v. USCIS, 11th Cir., 07-09-20, published
PANEL: MARTIN and NEWSOM, Circuit Judges, and WATKINS,* District Judge.
MARTIN, Circuit Judge:
Honorable W. Keith Watkins, United States District Judge for the Middle District of Alabama, sitting by designation.
OPINION BY: Judge Martin
CONCURRING OPINION: Judge Newsom
KEY QUOTE:
Plaintiffs Canal A Media Holding, LLC (“Canal A Media”) and Erick Archila appeal the District Court’s dismissal of their amended complaint for lack of subject-matter jurisdiction. They seek to challenge the decision by the United States Citizenship and Immigration Services (“USCIS”) to deny Canal A Media’s petition for a work visa for Mr. Archila. Having carefully reviewed this case, and with the benefit of oral argument, we have decided that the denial of Canal A Media’s visa petition was final agency action under the Administrative Procedure Act (“APA”). Also, we hold that 8 U.S.C. § 1252(b)(9) and (g) do not bar the Plaintiffs’ challenge to the visa petition denial. In keeping with these decisions, we reverse the District Court’s dismissal of the Plaintiffs’ claims.
JUDGE NEWSOM’S FULL CONCURRING OPINION:
I join the Court’s opinion in full. I write separately only to emphasize (what is to me, anyway) the obvious correctness of the Court’s holding that USCIS’s denial of Canal A Media’s Form I-129 visa petition constituted “final agency action” within the meaning of § 704 of the Administrative Procedure Act. See 5 U.S.C. § 704.
In determining whether agency action is “final” for APA purposes, the Supreme Court has emphasized, first and foremost, that “the action must mark the consummation of the agency’s decisionmaking process,” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (emphasis added) (quotation omitted), or, alternatively, that “the agency has completed its decisionmaking process,” Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) (emphasis added). Those formulations tee up an important—and here, apparently dispositive—question: What is the relevant “agency”? It seems to me self-evident—and so far as I can tell, all agree—that the “agency” whose “decisionmaking process” we have to evaluate here is USCIS, the instrumentality of the federal government responsible for evaluating I-129 petitions. See 8 C.F.R. § 214.2(l).
The government contends here—and the district court held—that USCIS’s denial of Canal A Media’s I-129 petition didn’t constitute “final agency action” because Mr. Archila, on whose behalf Canal A Media sought the I-129, was still in
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the middle of removal proceedings before an immigration judge. That is triply wrong—and, it seems to me, at the most basic level(s).
First, the government asks us to agency-jump. USCIS’s decisionmaking process hasn’t run its course, the government says, because an immigration judge is still working. But USCIS and the immigration court are altogether different “agenc[ies].” Cf. 5 U.S.C. § 701(b)(1) (defining “agency” to mean “each authority of the Government of the United States, whether or not it is within or subject to review by another agency”). More than that, they are housed in altogether different departments—USCIS exists within the Department of Homeland Security,1 whereas the immigration court operates under the auspices of the Department of Justice.2 The executive branch has an architecture—granted, not always perfectly elegant, but an architecture nonetheless—and the government’s position defies it.
Second, not only are the agencies themselves different, the participants in the proceedings before them are different. The only party properly before USCIS was Canal A Media, the visa petitioner; Mr. Archila, although the petition’s intended beneficiary, was not a party to the I-129 proceedings. See 8 C.F.R.
1 See Operational and Support Components, U.S. Dep’t of Homeland Sec., https://www.dhs.gov/operational-and-support-components (last visited July 7, 2020).
2 See Executive Office for Immigration Review, U.S. Dep’t of Justice, https://www.justice.gov/eoir (last visited July 7, 2020).
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§ 103.2(a)(3). Conversely, in the ongoing removal proceedings before the IJ, Mr. Archila is the lone participant; Canal A Media has no right to appear.
Finally, not only are the agencies different, and the parties before them different, but their respective jurisdictions—for purposes of this case, anyway—are different, as well. While USCIS and immigration courts share jurisdiction over a limited range of issues—for instance, eligibility for Temporary Protected Status, see, e.g., Mejia Rodriguez v. U.S. Dep’t of Homeland Sec., 562 F.3d 1137, 1140 (11th Cir. 2009)—only USCIS has authority to decide Canal A Media’s I-129 visa petition, see 8 C.F.R. § 214.2(l)(1)(i); Matter of Aurelio, 19 I. & N. Dec. 458, 460 (BIA 1987). The IJ handling Mr. Archila’s removal proceedings has no jurisdiction to consider, grant, or deny Canal A Media’s petition, let alone to review USCIS’s denial.
At 30,000 feet, then, the government’s position just can’t be right. USCIS’s rejection of Canal A Media’s I-129 petition is not non-“final” simply because a different agency that is housed in a different executive-branch department and is vested with jurisdiction over different issues and is presiding over a different proceeding involving a different party hasn’t finished its different business.
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My take:
Congrats to Ira Kurzban one of the true giants of modern U.S. immigration law (and someonewith whom I did battle numerous times during my 12 years in the “Legacy INS” Office of General Counsel);
It’s hard to beat the Government on an immigration case in the normally pro-Government 11th Cir.;
The Government has consistently been losing APA cases under the Trump regime all the way up to the Supremes;
Is it really THAT hard to read the APA and comply?
Judge Newsom’s concurring opinion points out that the Government’s position in this case is misleading at best, dishonest at worst, and totally frivolous in any event.
So where are the sanctions, warnings, or rebukes of DOJ attorneys for frivolous litigation and/or lack of candor to tribunals, both of which are violations of basic ethical requirements?
Frivolous litigation has become a staple of the Trump Administration. It’s used for dilatory purposes and to wear down, discourage, and punish private parties.
What’s wrong with Federal Courts that allow this type of unprofessional and unethical conduct by DOJ litigators to continue unabated?
For the Federal Courts to treat this lawless and contemptuous gang of scofflaws and thugs known as the “Trump Administration” as “normal” when it is nothing of the sort is both a dis-service to the public and a threat to our nation’s continued existence!
