"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Maria Sacchetti Immigration Reporter, Washington Post, Photo: WashPostArelis R. Hernandez Southern Border Reporter Washington Post, Photo: WashPost
By Maria Sacchetti and Arelis R. Hernández in WashPost:
Prominent Black lawmakers are urging the Biden administration to stop expelling migrants to nations such as Haiti that are engulfed in political turmoil, fearing that they could be harmed or killed.
Hundreds of immigrants have been swept out of the United States in recent days, a blow to groups that had been counting on President Biden and Vice President Harris, the daughter of immigrants and the first Black vice president, to halt deportations and overturn the Trump administration’s hard-line immigration policies.
Biden attempted to pause most deportations on Jan. 20, but a federal judge temporarily blocked the move. Immigration officials say the recent removals match Biden’s new enforcement priorities — such as people who recently crossed the border or who were convicted of serious crimes — but advocates say immigrants are being sent to nations where they could face danger.
“The community should not still be in panic across this nation when we have an administration that is willing to do the work of stopping these deportations,” Rep. Ilhan Omar (D-Minn.) said Friday in a call with reporters. “They have the authority to say no more flights will leave the United States.”
Migrants who cross the border are still being removed under a Trump administration order that allowed the expulsion of recently arrived people under Title 42, Section 265, of the public health law that aims to prevent the spread of the coronavirus. Advocates for immigrants tracking the flights say Immigration and Customs Enforcement has expelled approximately 900 Haitians, including dozens of children, in the past two weeks.
Advocates for immigrants say the situation is urgent, as Haiti and nations in Africa are facing varying threats. Haiti, the Western Hemisphere’s poorest country, has seen its democracy plunge into a constitutional crisis with allegations of a coup attempt and conflicting claims to the presidency.
. . . .
ICE deported New York resident Paul Pierrilus to Haiti on Feb. 2, even though he has never been to that country and has lived 35 of his 40 years in the United States.
He had fought deportation since 2004 after a drug conviction. His parents are of Haitian descent, but they are U.S. citizens and Pierrilus was born on the Caribbean island of St. Martin.
Haiti had never recognized him as a citizen, he said, but an immigration judge ordered him deported more than 16 years ago and he lost his appeals.
In an interview, Pierrilus described how he had to be dragged off the airplane. He wore the parka he used to wear in New York into the tropical 85-degree air. He said he is stunned and defeated.
“I’m not a Haitian citizen! I’m not a Haitian citizen!” Pierrilus recalled yelling as local officials pushed him onto a bus. “I felt helpless because it’s a situation out of my control. It’s a situation I can’t do anything about. No one is hearing what I’m saying.”
. . . .
*********************
Read the complete article at the link.
The Pierrilus story is particularly indicative of ICE’s attitude toward people of color: If he’s black send him to Haiti, ask questions later!
Courtside was “on top” of Ed Pilkington’s recent Guardian article on deporting babies and children to total disorder and danger in Haiti.
Remember, creating an atmosphere of fear and terror in ethnic communities throughout the United States was a key priority of the Trump White Nationalist kakistocracy — with a some help from the Supremes’ majority. It has been very successful. In fact, as noted by Vice President Harris, hate crimes directed against Asian Americans are up astronomically.
But, of course, there aren’t any Asian American Justices, are there? So, out of sight out of mind for perhaps Ameria’s “least representative” court (with the possible exception of the EOIR “courts”).
I’ve consistently been making several points that others are finally starting to pick up on and that will be essential for Biden Administration policy makers to keep in mind:
The issues of racial justice and immigrant justice are deeply intertwined — one can’t be solved without addressing the other;
Dehumanization of “the other” (Black, Latino, Asian-American, women, immigrants, asylum seekers, etc.) — “Dred Scottification” — has been promoted over the past four years and essentially endorsed and furthered by a tone-deaf Supremes’ majority;
Racist attitudes and misogyny are deeply ingrained in the current DHS and EOIR (now operating as an adjunct of DHS Enforcement) enforcement mechanisms and in some of the personnel carrying out enforcement policies, including some EOIR judges;
An aura of impunity and unaccountability infects both DHS and DOJ;
Racial justice and equal justice under law will not be achieved without significant personnel and attitude changes at the “retail level” of both DHS and EOIR.
Finally, complaining is a start. But, it won’t result in the necessary systemic changes.
The only way that African-American, Hispanic-American, Asian-American, and female lawmakers are going to get durable change is by prevailing on their colleagues to recognize the humanity of all persons in the United States and to make the necessary statutory changes in the immigration laws, beginning, but not ending, with an independent Article I Immigration Court.
Make no mistake: Democracy may have survived this year, but President Biden and Vice President Harris were elected despite, not thanks to, weakened electoral systems. Together with the Democratic Congress, they now have the opportunity to implement reforms that reaffirm our nation’s promises that our country represents and works for everyone. We as Democrats must act before it is too late.
Our democratic system faces extraordinary threats today because of sustained attacks from Republican leaders who throw up roadblocks to voting and, among the worst actors, stoke the flames of white supremacy and hyper-nationalism to cling to power. There can be no clearer example than the covid-19 pandemic. The deaths of more than 450,000 people in the richest country in the world are symptomatic of a democracy in crisis and a political system that rewards cronyism over competence. Despite strong public support for the Centers for Disease Control’s work, the Affordable Care Act, and other economic justice and safety-net policies that could save lives, millions nevertheless continue to contract the disease without adequate access to health care.
No thinking person can deny that the communities of color disproportionately suffering and dying from this pandemic are also the people whose votes — and ability to hold failed leaders accountable — have been continuously suppressed.
The pandemic has been a collision of tragedy and corroded institutions, and the challenge is in how we respond. We can either engage in collective amnesia about what we have just lived through, and leave an unaccountable government in place, or we can rise to meet this moment by fixing the broken social compact. Defeating Trump was not enough. Meaningful progress on health care, racial justice and the economy requires aggressive action on voting rights, partisan gerrymandering and campaign finance.
One of the first steps must be an overhaul of the Senate filibuster, which has long been wielded as a cudgel against the needs of millions who struggle. Today, the parliamentary trick creates a more sinister threat to our nation: the ability of a minority of senators, who represent 41.5 million fewer people than the Senate majority, to block progress favored by most Americans.
Democrats in Congress must fully embrace their mandate to fast-track democracy reforms that give voters a fair fight, rather than allowing undemocratic systems to be used as tools and excuses to perpetuate that same system. This is a moment of both historic imperative and, with unified Democratic control of the White House and Congress, historic opportunity.
The agenda to restore democracy also includes passing the For the People Act to protect and expand voting rights, fight gerrymandering and reduce the influence of money in politics; the John Lewis Voting Rights Advancement Act to restore the full protections of the 1965 Voting Rights Act; and the Protecting Our Democracy Act to constrain the corruption of future presidents who deem themselves above the law. These landmark bills have broad-based support, and would have passed long ago were it not for obstructionist leaders who fear losing their own influence if the American people have more power of their own.
. . . .
********************
The Trump GOP lies, insurrections, and blatantly false claims attempting to undermine the very clear Biden-Harris victory have been a smokescreen for the real voting problems — the unrelenting efforts of the GOP — “The Party of the New Jim Crow” — to suppress the votes of Americans of color. Read the rest of Abrams’s op-ed at the link.
And, as Abrams cogently points out, one reason for the denial, downplaying, and maliciously incompetent mishandling of the pandemic by the Trump regime was that so many of the victims were among communities of color — those they never cared about and whose humanity they continuously tried to deny and disparage. Death is a great way of disenfranchising minority voters. Not to mention a little fear and intimidation thrown in for a good measure.
There is a very clear connection between the dehumanization of asylum seekers and other migrants and the disenfranchisement of voters of color. It’s all part of “Dred Scottification” — a disgraceful practice sanctioned by none other than the GOP’s Supremes’ majority!
Our future as a nation depends on Judge Garland, Vanita Gupta, and their incoming team at DOJ “connecting the dots” — beginning with dismantling and replacing the White Nationalist nativist kakistocracy at EOIR. Immigrants’ rights are civil rights are human rights!The GOP actually “gets” that (in a purely negative way)! Will the Dems finally show that they do too!
Vanita Gupta Nominee for Associate AG Photo: Brookings Institution, Paul Morigi, Creative Commons LicenseKristin Clarke Nominee for Assistant AG, Civil Rights Photo: NAACP, Creative Commons License
Meet the courageous, dynamic , outspoken, new human-rights-oriented leaders looking to fulfill the Constitution and make “equal justice for all” a reality @ the DOJ and for America.Sam Levine reports for The Guardian.
On her last day at the justice department in 2017, Vanita Gupta considered taking a picture as she left the agency’s headquarters on Pennsylvania Avenue. But she decided against it. Gupta, the outgoing head of the department’s civil rights division, once described as the “crown jewel” of the agency, didn’t really want to remember the moment, she told a reporter who was shadowing her for the day.
Jeff Sessions, then the incoming attorney general, was poised to unwind much of the painstaking progress Gupta, 46, and her colleagues had spent the last four years building. It was no secret that Sessions opposed the kind of court agreements the justice department used to fix unconstitutional policing policies across the country (“dangerous” and an “exercise of raw power” in Sessions’ eyes). Nor were there any illusions that Sessions would try very hard to enforce the Voting Rights Act, already on its last legs after the supreme court gutted a key provision in 2013 (Sessions described the landmark civil rights law as “intrusive”).
Many of those concerns came to pass. Trump’s justice department not only did little to enforce some of the country’s most powerful civil rights protections for minority groups, but in several cases it opposed them. It filed almost no voting rights cases and defended restrictive voting laws, tried to undermine the census, challenged affirmative action policies, sought to roll back protections for LGBTQ+ Americans, and limited the use of consent decrees to curb illegal policing practices. Gupta took a job as the head of the Leadership Conference on Civil and Human Rights, a coalition of civil rights groups across the country, where she became one of the leading figures pushing back on the Trump administration.
Joining Gupta in that effort was Kristen Clarke, a 47-year-old former justice department lawyer who leads the Lawyers’ Committee for Civil Rights Under Law, founded in 1963 to help attorneys in private practice enforce civil rights. As her group filed voting rights and anti-discrimination lawsuits across the country over the last few years, Clarke spent hours nearly every election day briefing journalists on reports of incoming voting problems. Reports of long lines, voting machine malfunctions, translator issues – no problem was too small. The monitoring sent a message that civil rights groups would move swiftly against any whiff of voter suppression.
Now, after years of leading the fight for civil rights from outside the justice department, both women are poised to return to its top levels, where they can deploy the unmatchable resources of the federal government. Last month, Joe Biden tapped Gupta to serve as his associate attorney general, the No 3 official at the department, and Clarke to lead the civil rights division. If confirmed by the Senate, Gupta would be the first woman of color to be the associate attorney general; Clarke would be the first Black woman in her role.
“They are both independently legit civil rights champions with a long deep history,” said Justin Levitt, who worked with Gupta at the justice department and knows both women well. “They’re going to make a really spectacular, really powerful team.”
Picking two career civil rights lawyers for two of the top positions at the justice department sends an unmistakable signal that civil rights enforcement will be a top priority for the agency over the next four years. Civil rights leaders said they could not remember a prior administration in which two of the department’s highest positions were filled by civil rights attorneys, especially two such as Clarke and Gupta.
“It’s going to be really important and energizing and exciting to be able to be in conversation and discussion with people who understand the department’s role in civil rights enforcement,” said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund (LDF), who has worked closely with both women. “But it’s also going to be exciting, and as a matter of resources, to have the department actually do civil rights enforcement.”
. . . .
********************
Read the rest of these inspiring American profiles 🇺🇸🌟at the link. Don’t you think we need the “Vanita & Kristen” of immigration and human rights to lead the restoration effort at EOIR and the BIA?
Here are the “keys to success:”
Immigrants’ rights are human rights;
Human rights are civil rights;
There can be neither racial justice nor equal justice in America until migrants are not only fully recognized as “persons” under our Constitution, but actually treated as such (as opposed to the active “dehumanization” and “Dred Scottification” of migrants and persons of color by the Trump regime and the GOP majority on the Roberts’ Court);
You can’t possibly “win the game” with the same players who “batted for the White Nationalists” over the past four years.
And, speaking of “Jewel in the Crown.”👑 That’s exactly how many of us in the “Round Table of Former Immigration Judges” 🛡⚔️ once viewed EOIR. The “EOIR Vision” was: “Through teamwork and innovation be the worlds’s best tribunals, guaranteeing fairness and due process for all.”
So, Vanita, and I hope Kristen also, can imagine the anger and determination to fight with which our Round Table viewed the dismemberment of due process and weaponization of the Immigration Courts under Sessions, Whitaker, and Barr. From aspiring to be the “world’s best tribunals” to “Star Chambers” and a grotesque, dysfunctional national disgrace!
On the plus side: Both Gupta and Clarke are the daughters of immigrants. Both have written and advocated for immigrants’ rights as part of their civil rights leadership.
Caution. Obama Attorneys General Eric Holder and Loretta Lynch were “facially aggressive” on protecting voting rights and police reforms. Yet, at the same time they: helped DHS set deportation records; allowed EOIR to spiral toward dysfunction (to a large extent through failure to procure and properly manage resources and an indolent judicial hiring program that was both “closed and non-diverse in nature” and glacial in operation (2 years to fill an average judicial vacancy!)); supported “baby jails,” the “family gulag,” and toddlers representing themselves on asylum cases in Immigration Court; looked the other way as private prisons treated asylum seekers and migrants worse than convicted criminals; and “went along to get along” with the Administration’s misuse of the Immigration Courts as (a highly ineffective) deterrent to applications for asylum.
Sessions, Whitaker, and Barr might have been the “Kings of Aimless Docket Reshuffling” at EOIR that helped produce an astounding 1.3 million case plus “backlog.” But, it started in earnest under the Obama Administration.
That’s what I mean by the “two headed policy:” arguing for voting rights for minorities in one courtroom while simultaneously ignoring the human and civil rights of migrants in the next courtroom. Arguing for the right to vote in one case, while arguing (apparently with a straight face) that toddlers who can’t speak English have no right to legal representation in the next case.
Not only that, but with the Biden Administration apparently looking to rapidly fill upcoming Article III vacancies, the Obama DOJ’s mishandling of the Immigration Courts has deprived President Biden of the chance to draw from a diverse group of younger, progressive Immigration Judges whose practical scholarship, commitment to human rights and due process, courage, and proven ability to function in a “high stress” judicial setting would make them strong candidates for the now-reeling Article III Judiciary.
That’s certainly not to say that there aren’t some potential progressive candidates for the Article III Judiciary among today’s present, and particularly recently “retired,” (some essentially “forced out” at relatively young ages as a “matter of conscience”) Immigration Judges. There are! But, only a fraction of the number there would have been if the Obama Administration had taken the Immigration Courts with proper seriousness.
And, that’s leaving aside the lives that could have been saved and better jurisprudence that could have been “institutionalized” with better, merit-based, judicial selections at EOIR during the Obama Administration!
I sincerely hope that Vanita Gupta and Kristen Clarke can help Judge Garland get the job done at Justice. The “human rights/immigration world” will be cheering for you. Getting some of the folks from the New Due Process Army(“NDPA”) into key positions at EOIR and the rest of the DOJ will be an “early signal” of whether or not “Team Garland gets it.”
Removing McHenry at EOIR was a good start! But, it’s only a small step in what has to be done to make racial justice and immigrant justice a reality at the DOJ. The “brooms and plungers” 🧹🚽 need to come out, and the sweeping and plunging has to be quick and widespread.
On the other hand, there is “no patience for another Obama Administration” out here in the real world. Every day, EOIR and DOJ are killing folks, ruining lives, and abusing the brave and dedicated attorneys of the NDPA! If the rhetoric doesn’t produce short term results and drastic improvements, you can expect the same type of aggressive litigation from the NDPA that stopped the defeated regime from completely destroying the U.S. justice system.
“[W]e conclude that the BIA abused its discretion by denying E.A.’s motion to reopen. E.A.’s mother’s recent childbirth is a serious medical event, which coupled with E.A.’s minor age, her difficulty obtaining transportation, and her difficulty navigating the immigration system without assistance, constitute “exceptional circumstances” necessitating rescission of the in absentia removal order. … The BIA’s decision was also contrary to law, and therefore an abuse of discretion. … First, the BIA improperly considered E.A.’s age separately, rather than considering age alongside other factors, when determining that she had not shown that exceptional circumstances justified her failure to appear. Second, the BIA erred when it dismissed without adequate explanation E.A.’s evidence that she is eligible for SIJS. Finally, the BIA improperly stated that E.A. was required to present prima facie evidence that she was eligible for immigration relief as part of her motion to reopen. … For the foregoing reasons, we GRANT the petition for review, VACATE the removal order, and REMAND for further proceedings consistent with this opinion.”
[Hats way off to Rachel Naggar! Here is a link to the audio of the oral argument.]
“Salim Al Amiri, an Iraqi citizen, seeks relief from removal on the grounds of asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”). He premises his requests for such relief on the harm that he fears that he would be subjected to in Iraq at the hands of members of Iraq’s military or civilian insurgents operating in that country. Al Amiri contends that he has reason to fear he would be subjected to that harm on account of his work as a paid contractor for the United States Army during the war in Iraq, as in that role he educated U.S. soldiers about Iraqi customs and practices as they prepared for their deployment. We vacate and remand the ruling of the Board of Immigration Appeals (“BIA”) denying his claims for asylum and withholding of removal, but we deny his petition insofar as it challenges the BIA’s ruling rejecting his CAT claim.”
Think how much better this system would function with expertjudges who treated asylum applicants fairly from the “git go,” granted protection wherever possible in accordance with the the Refugee Act of 1980 and the (more “woke”) Supremes’ precedent in Cardoza-Fonseca, provided clear, positive guidance on how valid claims could be documented and granted, and promoted and consistently applied best practices to achieve efficiency with maximum due process.
At first glance, although the issue is reopening rather than a continuance, E.A.C.A. undercuts McHenry’s nativist, insanely wasteful, and totally dishonest attempt to “raise the bar” for routine continuances for asylum applicants who need time to properly document and prepare their cases.
The “Deny – Deny Program” — deny due process, deny relief — that infects EOIR’s “Star Chambers” (impersonating “courts”) is a huge backlog builder that kills people and screws up Court of Appeals dockets in the process.
Reopening cases that should be reopened, getting to the merits, and getting the many properly grantable asylum cases represented, documented, and prioritized would be a huge step in reducing EOIR’s largely self-created and unnecessary “bogus backlog.”
Ultimately, many of the clearly grantable asylum cases being mishandled and wrongly denied at EOIR, at great waste of time and resources, not to mention unnecessary human trauma, could, with real expert judges at EOIR setting and consistently enforcing the precedents, be granted more efficiently and expeditiously at the Asylum Office and ultimately shifted to a more robust and properly run Refugee Program.
In the longer run, once EOIR is redesigned and rebuilt as a proper court with real, independent, expert judges, it might be appropriate to place the Asylum Offices under judicial supervision, given the grotesque abuses and corrupt, perhaps criminal, mismanagement of the Asylum Offices by USCIS toadies carrying out the regime’s racist, White Nationalist, unconstitutional agenda of hate and waste.
NOTE TO JUDGE GARLAND👨🏻⚖️:Please fix the EOIR mess, Your Honor, before it brings you and the entire US justice system crashing down with it! This is a national emergency, and a damaging national disgrace, NOT a “back burner” issue!
Here’s some additional E.A.C.A. analysis by my good friend and NDPA “warrior queen” 👸🏽Michelle Mendez @ CLINIC!
Michelle Mendez Defending Vulnerable Populations Director Catholic Legal Immigration Network, Inc. (“CLINIC”)
Subject: CLINIC MTR In Absentia Win at the CA6 on behalf of SIJS-Seeking UC (E. A. C. A. v. Jeffrey Rosen)
Greetings,
Sharing this win, E. A. C. A. v. Jeffrey Rosen, out of the CA6 by my amazing colleague Rachel Naggar who manages our BIA Pro Bono Project. This was an appeal of an IJ (Memphis) denial of an in absentia motion to reopen for a 13-year old unaccompanied child.
Interestingly, after oral argument, OIL filed a motion to remand the case (which Rachel opposed) and the CA6 denied that motion. Seems the CA6 really wanted to issue a decision on the merits and we are grateful for the decision. Here are some highlights from the decision:
SIJS
· “Notably, the IJ’s decision does not mention E.A.’s claims that she was eligible for SIJS.”
· FN 1: “As of the December 2020 Visa Bulletin, visas are available for special immigrants (category EB4) from El Salvador to adjust their status if their priority date is prior to February 2018. If DHS removes E.A. prior to approving her visa, she will be unable to apply for adjustment of status. See 8 U.S.C. § 1101(a)(27)(J).”
Totality of the Circumstances
· “Based on the totality of the circumstances, including E.A. mother’s recent childbirth, E.A.’s young age, E.A.’s mother’s failed attempts to obtain counsel to help change the address of E.A.’s hearing, and E.A.’s inability to travel from New York to Memphis for the hearing, we hold that E.A. established exceptional circumstances.”
· “Under the totality of the circumstances, E.A.’s young age is an important factor in determining whether exceptional circumstances exist.”
Exceptional Circumstances
· “E.A.’s mother’s recent childbirth is a serious medical condition that supports reopening. The statute defining ‘exceptional circumstances’ that justify reopening an immigration proceeding lists the ‘serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien’ as an example. 8 U.S.C. § 1229a(e)(1). Childbirth is a serious medical event that necessitates a recovery period.”
· “Instead of recognizing that childbirth is a serious medical condition, the BIA minimized the seriousness of childbirth and its impact on E.A.’s mother’s ability to bring E.A. to Memphis. […] Recovery from childbirth is exactly the type of circumstance that § 1229a(e)(1) was intended to cover.”
Prima Facie Eligibility
· “Finally, the BIA erred by stating that E.A. was required to prove prima facie eligibility for immigration relief. The BIA’s decision improperly states that E.A. is required to show at this stage prima facie eligibility for relief. The statute governing motions to reopen removal orders entered in absentia provides that the petitioner must ‘demonstrate[] that the failure to appear was because of exceptional circumstances.’ 8 U.S.C. § 1229a(b)(5)(C). In general, we have stated that ‘[a] prima facie showing of eligibility for relief is required in motions to reopen.’ Alizoti, 477 F.3d at 451–52. In the case of a motion to rescind a removal order entered in absentia, however, the BIA has held that ‘an alien is not required to show prejudice in order to rescind an order of deportation” or removal. In re Grijalva-Barrera, 21 I. & N. Dec. 472, 473 n.2 (BIA 1996); see also In re Rivera-Claros, 21 I. & N. Dec. 599, 603 n.1 (BIA 1996). This is consistent with the statute governing motions to rescind removal orders entered in absentia, 8 U.S.C. § 1229a(b)(5)(C), which does not list a showing of prima facie eligibility for relief from removal as a requirement to rescind in absentia removal orders. Rivera-Claros, 21 I. & N. Dec. at 603 n.1; see also Galvez-Vergara v. Gonzales, 484 F.3d 798, 803 n.6 (5th Cir. 2007) (declining ‘to affirm the IJ’s decision on the grounds that [the petitioner] has not shown that he was prejudiced by his counsel’s performance’ because ‘In re Grijalva-Barrera, 21 I. & N. Dec. at 473 n.2, provides that an alien need not demonstrate prejudice for his counsel’s erroneous advice to constitute an ‘exceptional circumstance’ justifying rescission of an in absentia removal order’); Lo v. Ashcroft, 341 F.3d 934, 939 n.6 (9th Cir. 2003) (‘follow[ing] the BIA’s usual practice of not requiring a showing of prejudice’ to rescind an in absentia order of removal). We now join our sister circuits and hold that E.A. is not required to make a prima facie showing of eligibility for relief in order to obtain rescission under 8 U.S.C. § 1229a(b)(5) of the in absentia order of removal.”
Thanks to our entire Defending Vulnerable Populations team for supporting Rachel on the briefing, oral argument, and negotiations with OIL.
Gratefully,
Michelle N. Mendez | she/her/ella/elle
Director, Defending Vulnerable Populations Program
Catholic Legal Immigration Network, Inc. (CLINIC)
**********************
In addition to the “normal” overall White Nationalist, racist agenda that EOIR “management” has carried out under the defeated regime, there was a good deal of misogyny 🤮 involved in the BIA’s gross mishandling of the “pregnancy issue,” as described by the Sixth Circuit. This misogynistic trend can be traced back directly to the unconstitutional and unethical actions of mysogynist White Nationalist AG Jeff Sessions 🤮 🦹🏿♂️🤡in the “Matter of A-B- Abomination.” ☠️⚰️🏴☠️👎🏻
Biased, anti-migrant decision-making in support of bogus enforcement gimmicks and White Nationalist anti-democracy agendas builds backlogs and kills, maims, and tortures “real” people! Migrants are people and persons, not “threats” and “bogus statistics.”
The “dehumanization” and “de-personification” of migrants, with the connivance of the tone-deaf and spineless GOP Supremes’ majority, is a serious, continuing threat to American democracy! It must stop! Justices who won’t treat migrants physically present in the U.S. or at our borders as “persons” under our Constitution — which they clearly are — do not belong on the Supremes! ⚖️🗽🇺🇸
I can also draw the lines connecting George Floyd, institutionalized racial injustice, voter suppression, riots at the Capitol, and the “Dred Scottification” of asylum seekers and other migrants by EOIR!
HINT TO JUDGE GARLAND:Michelle Mendez would be an outstanding choice to lead the “clean up and rebuild” program at EOIR and the BIA once the “Clown Show” 🤡🦹🏿♂️ is removed!🪠🧹 Put experts with practical experience like Rachel Nagger and Christopher Linas onto the bench, on the BIA, the Immigration Courts, and the Article III Judiciary to get the American Justice system functioning again!
The “judicial selection system” for the Immigration Courts and the Article III Judiciary has failed American democracy — big time — over the past four years. Fixing it must be part of your legacy!
The folks who preserved due process and our Constitution in the face of tyranny are mostly “on the outside looking in.” You need to get them “inside Government” — on the bench and in other key policy positions — and empower them to start cleaning up the ungodly mess left by four years of regime kakistocracy🤮☠️🤡⚰️👎🏻. “Same old, same old” (sadly, a tradition of Dem Administrations) won’t get the job done, now any more than it has in the past! New faces for a new start!
And, it starts with better judges @ EOIR, which is entirely under YOUR control!An EOIR that actually fulfills its noble, one-time vision of “Through teamwork and innovation being the world’s best tribunals guaranteeing fairness and due process for all” will be a model for fixing our failing Federal Courts — all the way up to the leaderless and complicit Supremes who failed, particularly in immigration, human rights, voting rights, and racial justice, to effectively and courageously stand up to the Trump-Miller White Nationalist agenda of hate and tyranny!
We are where we are today as a nation, to a large extent, because of the Supremes’ majority’s gross mishandling of the “Muslim Ban” cases which set a sorry standard for complicity and total lack of accountability for unconstitutional actions, racism, dishonesty, cowardly official bullying, and abandonment of ethics by the Executive that has brought our nation to the precipice! Life tenure was actually supposed to protect us from judges who wouldn’t protect our individual rights. In this case, it hasn’t gotten the job done! Better judges for a better America!
🇺🇸⚖️🗽👍🏼Due Process Forever! The EOIR Clown Show🤡🦹🏿♂️ ☠️⚰️Never!
The Biden transition has officially announced: Merrick Garland, nominee for Attorney General; Lisa Monaco, nominee for Deputy Attorney General; Vanita Gupta, nominee for Assoc. Attorney General; and Kristen Clarke, nominee for Asst. Attorney General for the Civil Rights Division.
*********************
Gupta and Clarke have strong social justice backgrounds.
Monaco, on the other hand, served as a Homeland Security Assistant to President Obama, and has a primarily prosecutorial/national security background. That could be troubling, given the marked tendency of Administrations of both parties to use bogus or exaggerated “national security myths” and overwrought “get tough prosecutorial stances” to violate both the civil and human rights of asylum seekers and other migrants.
I frankly had hoped for someone with a better demonstrated understanding of, and commitment to, human rights, social justice, and the essential prerequisites they both are for achieving true national security. Unlike Judge Garland, I see little if anything in Monaco’s background that would qualify her to have a role in administering one of the nation’s largest, and perhaps most important, “court” systems: the U.S. Immigration Courts, now in total disarray and complete meltdown.
But, in the end, she’s President Biden’s choice and will be confirmed. Hopefully, we can work with her. At the same time, the NDPA should be prepared to “raise holy hell” if she performs like the Obama DOJ officials who abused, mismanaged, and helped destroy due process in the Immigration Courts.
The assignment of supervision of the Immigration Court function under the AG varies from Administration to Administration. In this case, incoming AssociateAG Vanita Gupta, a strong supporter of immigrants’ rights who understands their connection to civil rights, human rights, and racial justice, currently President and CEO of the Leadership Conference on Civil and Human Rights, would be a far better choice than Monaco to work on rebuilding EOIR into the due-process focused court system it was supposed to be.
Here are bios:
Biography
Lisa Monaco assumed her duties as Assistant to the President for Homeland Security and Counterterrorism on March 8, 2013. As President Barack Obama’s Homeland Security and Counterterrorism Advisor, she was responsible for advising the President on all aspects of counterterrorism policy and strategy and coordinating homeland security-related activities throughout the Executive Branch. She chaired meetings of the Cabinet-level Homeland Security Principals Committee, which advised the President on homeland security policy issues and crises. Ms. Monaco was responsible for policy coordination and crisis management on issues ranging from terrorist attacks at home and abroad to cybersecurity and natural disasters.
Prior to the White House, Ms. Monaco spent 15 years at the Department of Justice, the majority of that time serving as a career federal prosecutor, and in senior management positions in the Justice Department and the FBI. She has extensive experience at the senior most levels of law enforcement and the Justice Department. She served for three years as counsel to and then Chief of Staff at the FBI, helping then Director Robert S. Mueller, III, transform the FBI after 9/11 into a national security organization focused on preventing terrorist attacks on the United States. In 2009, she returned to the Department of Justice to serve in the senior leadership of the Deputy Attorney General’s office, responsible for management of the Justice Department and its more than 100,000 employees. She served as Principal Associate Deputy Attorney General, the Deputy Attorney General’s primary advisor on criminal policy, law enforcement, national security and civil litigation matters. In that role she was responsible for assisting the Attorney General and Deputy Attorney General in overall management and supervision of the Department and its components, including the nation’s 94 United States Attorney Offices. In 2011, she was nominated by the President and confirmed by the United States Senate to serve as Assistant Attorney General for National Security, the first woman to serve in that position. In this role, she led the Justice Department’s National Security Division (NSD) which was created after the attacks of September 11, 2001, in order to integrate intelligence and law enforcement functions across the Justice Department. At NSD, she oversaw all federal terrorism and national security prosecutions nationwide and led a division of more than 350 lawyers and professional staff. Ms. Monaco made investigating and prosecuting national security cyber threats a top priority during her tenure and under her leadership, a nationwide network of national security cyber prosecutors was created.
Ms. Monaco began her legal career as a law clerk to the Honorable Jane R. Roth on the United States Court of Appeals for the Third Circuit. She later served as Counsel to the Attorney General and then as a Federal prosecutor. She served for six years as an Assistant United States Attorney in the U.S. Attorney’s Office for the District of Columbia prosecuting a range of crimes from violent crime to fraud and public corruption cases. Her career as a Federal prosecutor includes service on the Enron Task Force, a group of federal prosecutors drawn from around the country to investigate and prosecute the fraud at the Enron Corporation.
Ms. Monaco is a recipient of the Attorney General’s Award for Exceptional Service, the Justice Department’s highest award, for her work on the Enron Task Force, as well as the Edmund J. Randolph Award, which is awarded by the Attorney General in recognition of outstanding contributions to the accomplishment of the Department of Justice’s mission. She is a graduate of Harvard University and the University of Chicago Law School.
Vanita Gupta is an experienced leader and litigator who has devoted her entire career to civil rights work. Most recently, from October 15, 2014, to January 20, 2017, she served as Acting Assistant Attorney General and Head of the U.S. Department of Justice’s Civil Rights Division. Appointed by President Barack Obama as the chief civil rights prosecutor for the United States, Gupta oversaw a wide range of criminal and civil enforcement efforts to ensure equal justice and protect equal opportunity for all during one of the most consequential periods for the division.
Under Gupta’s leadership, the division did critical work in a number of areas, including advancing constitutional policing and criminal justice reform; prosecuting hate crimes and human trafficking; promoting disability rights; protecting the rights of LGBTQ individuals; ensuring voting rights for all; and combating discrimination in education, housing, employment, lending, and religious exercise. She regularly engaged with a broad range of stakeholders in the course of this work.
Selected high profile matters during her tenure included the investigations of the Ferguson, Baltimore, and Chicago police departments; the appeals of the Texas and North Carolina voter ID cases; the challenge to North Carolina’s HB2 law and other transgender rights litigation; enforcement of education, land use, hate crimes, and other statutes to combat Islamophobia and other forms of religious discrimination; the issuance of statements of interest on bail and indigent defense reform, and letters to state and local court judges and administrators on the unlawful imposition of fines and fees in criminal justice system; and the Administration’s report on solitary confinement.
Prior to joining the Justice Department, Gupta served as Deputy Legal Director and the Director of the Center for Justice at the American Civil Liberties Union (ACLU). She joined the ACLU in 2006 as a staff attorney, where she subsequently secured a landmark settlement on behalf of immigrant children from around the world detained in a privately-run prison in Texas that ultimately led to the end of “family detention” at the facility. In addition to managing a robust litigation docket at the ACLU, Gupta created and led the organization’s Smart Justice Campaign aimed at ending mass incarceration while keeping communities safe. She worked with law enforcement agencies, corrections officials, advocates, stakeholders, and elected officials across the political spectrum to build collaborative support for pretrial, drug, and sentencing policies that make our federal, state, and local criminal justice systems more effective and more just.
Gupta began her legal career as an attorney at the NAACP Legal Defense & Educational Fund, where she successfully led the effort to overturn the wrongful drug convictions of 38 individuals in Tulia, Texas, who were ultimately pardoned by Governor Rick Perry. She then helped negotiate a $6 million settlement on behalf of her clients. She also consulted with European civil society organizations working to advance the rights of the Roma.
Gupta graduated magna cum laude from Yale University and received her law degree from New York University School of Law, where later she taught a civil rights litigation clinic for several years.
She is married to Chinh Q. Le, legal director of the Legal Aid Society of the District of Columbia, and has two young sons.
SOURCE: Leadership Conference on Civil and Human Rights
The Next-Level Shamelessness of the COVID Security Regs
On December 23, EOIR and USCIS published final rules designed to brand most people a “security risk,” and thus ineligible for asylum. The rules won’t become effective until January 22 (i.e. after the Biden Administration is in office), so will presumably be pulled back before they hurt anyone other than the reputations and careers of those responsible for their publication. Nevertheless, it seems worthwhile to refute the present administration’s claimed justification for such a rule. First, there will certainly be other bad administrations in our future, and as we’ve seen with the present one, they might look to the past for inspiration.
Furthermore, even without the rule going into effect, individual immigration judges will still be faced with interpreting the clause it invokes on a case-by-case basis. I’m hoping the following analysis will prove useful, as I’m pretty sure it wasn’t covered in the judges’ training.
But most importantly, the assaults of the past four years on facts and reason have taught us the need to constantly reinforce what those presently in charge hope to make us forget: that there are laws passed by Congress; that the Judiciary has created strict rules governing their interpretation, and that executive agencies are not free to simply ignore or reinvent the meaning of those laws to their own liking.
The regulations in question seek to take advantage of the present pandemic to render any asylum seeker who either exhibits symptoms of the virus, has come in contact with it, or has traveled from or through a country or region where the disease is prevalent ineligible for asylum. The administration seeks to justify this by claiming that there are reasonable grounds for regarding the above a danger to the security of the United States.
The “danger to the security of the United States” bar to asylum1 which the new regulations reference derives from Article 33(2) of the 1951 Convention Relating to the Status of Refugees, which serves as the international law basis for our asylum laws. That treaty (which is binding on the U.S.) states that the prohibition against returning refugees shall not apply to those “whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
However, Article 33(2) applies to those who have already been recognized as refugees, and have then committed crimes in the country of refuge, which is not the class to whom the new regulations would apply. The bases for excluding those seeking refugee status for reasons arising prior to their arrival are found under Article 1D through 1F of the 1951 Convention. The prohibitions found there cover three groups: those who are already receiving protection or assistance (Article 1D); those who are not considered to be in need of protection (Article 1E); and those “categories of persons who are not considered to be deserving of international protection (Article 1F).2 Individuals posing a danger to the community fall into the final category.
No ground contained in the 1951 Convention excludes those in need of protection for health-related purposes. To understand why, let’s look closer at the Convention’s use of the word “deserving” as it relates to refugee protection. In 1997, UNHCR published a note providing additional insight into the Article 1F “exclusion grounds.” Explaining that “the idea of an individual ‘not deserving’ protection as a refugee is related to the intrinsic links between ideas of humanity, equity, and the concept of refuge,” the note explains that the primary purpose of the clauses “are to deprive the perpetrators of heinous acts and serious common crimes, of such protection.” The note explains that to do otherwise “would be in direct conflict with national and international law, and would contradict the humanitarian and peaceful nature of the concept of asylum.”
The European Council on Refugees and Exiles covered this same issue in its 2004 position paper on Exclusion from Refugee Status. At page 8, the ECRE stated that the “main aim” of Article 1F was not “to protect the host community from serious criminals,” but rather to preserve the integrity of the international refugee system by preventing it from being used to “shelter serious criminals from justice.” These sources make it extremely clear that the intent was certainly not to exclude someone who might have been exposed to a virus.
In including six exceptions to eligibility in our asylum statute,3 Congress followed the lead of the 1951 Convention, as all six domestic clauses fall within the three categories listed in paragraph 140 of the UNHCR Handbook as listed above. Of the six grounds listed under U.S. law, the last one, regarding persons firmly resettled in another country prior to arrival in the U.S., is covered by the Convention categories of those already receiving assistance or not in need of assistance.
The remaining five exceptions under U.S. law fall within the category of those not considered to be deserving of protection (Article 1F). The statute lists those categories as: (i) persecutors of others; (ii) persons posing a danger to the community of the U.S. by virtue of having been convicted of a particularly serious crime; (iii) persons whom there are serious reasons to believe committed serious nonpolitical crimes prior to their arrival in the U.S.; (iv) persons whom “there are reasonable grounds for regarding…as a danger to the security of the United States,” and (v) persons engaged in terrorist activity.
Agencies may only apply their own interpretation to the term “as a danger to the security of the United States” to the extent such term is ambiguous. But the courts have instructed that in determining whether a statute is in fact ambiguous, traditional tools of construction must be employed, including canons.4 The Supreme Court has recently applied one such canon, ejusdem generis, for this purpose.5 In its decision, the Court explained that “where, as here, a more general term follows more specific terms in a list, the general term is usually understood to ‘ “embrace only objects similar in nature to those objects enumerated by the preceding specific words.”’”6
Former Attorney General Barr himself recently applied the ejusdem generis canon to the term “particular social group,” stating that pursuant to the canon, the term “must be read in conjunction with the terms preceding it, which cabin its reach…rather than as an “omnibus catch-all” for everyone who does not qualify under one of the other grounds for asylum.”7
A very similar canon to ejusdem generis is noscitur a sociis (the “associated words” canon). Whereas ejusdem generis requires a term to be interpreted similarly to more specific terms surrounding it in a list, noscitur a sociis applies the same concept to more specific terms across the same statute.8
In 8 U.S.C. § 1158(b)(2)(A), the more general term “danger to the security of the United States” is surrounded by the more specific terminology describing the accompanying grounds of asylum ineligibility. When thus “cabined” by the more specific classes of persecutors of others, those convicted of serious crimes, and those engaged in terrorist activities, it is clear that Congress intended a “risk to security” to relate to similar types of criminal activity, and not to health grounds. As the intent of Congress is clear, the term “threat to the security of the United States” is not open to any interpretation the agencies might wish to apply to it. Yet in its published rule, EOIR and USCIS here create the type of “omnibus catch-all” that the Attorney General himself has elsewhere declared to be impermissible.
The rule is further at odds with circuit case law in its application to those who simply “may” pose a risk. The Third Circuit has found the statutory language of the clause in question to unambiguously require that the asylum-seeker pose an actual, rather than merely a possible, threat to national security.9 Even if it were assumed that COVID could somehow fit into the category of security risk, simply having traveled from or through an area where the virus is prevalent doesn’t establish that the individual presents an actual risk.
There is also the issue of the transient nature of the risk. In the same decision referenced above, the Third Circuit relied on the Refugee Act’s legislative history to conclude “that Congress intended to protect refugees to the fullest extent of our Nation’s international obligations,” allowing for exceptions “only in a narrow set of circumstances.”10 This is obviously a correct reading where exclusion can lead to death, rape, or indefinite imprisonment. The other classes deemed undeserving of asylum are defined by more permanent characteristics. In other words, the attribute of being a terrorist, a persecutor, or a serious criminal will not wear off in two weeks time. To the contrary, any risk posed by one exposed to COVID-19 is likely to pass within that same time frame. Wouldn’t the “fullest extent” of our obligations call for simple quarantining for the brief period in question?
These issues were all raised in comments to the proposed regs. And of course, dubious reasons were employed to dismiss these arguments. For example, the agencies acknowledged the need for the danger posed be an actual rather than a merely possible one. But somehow, that requirement was dismissed by the inadequate excuse that the danger posed by a pandemic is “unique.”
The rule stands as one of the final examples of the extremes this administration will go to in order to circumvent our asylum laws and turn away those entitled to avail themselves of our immigration courts in order to determine if they are entitled to protection. As demonstrated here, the degree to which this administration veered from the actual intent of the statute in interpreting the security bar wouldn’t have been much greater if it attempted to deny asylum to those wearing white after Labor Day.11 The law must not be twisted or ignored by executive branch agencies when it conflicts with an administration’s policy objectives.
Notes:
8 U.S.C. § 1158(b)(2)(A).
UNHCR Handbook at ❡ 140.
8 U.S.C. § 1158(b)(2)(A).
See, e.g., Arangure Jasso v. Whitaker, 911 F.3d 333, 338-39 (6th Cir. 2018).
See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1625 (2018).
Ibid (citing Circuit City Stores, Inc. v. Adams, 121 S.Ct. 1302, 149 (2001); National Assn. of Mfrs. v. Department of Defense,138 S.Ct. 617, 628–629 (2018)).
Matter of L-E-A-, 27 I&N Dec. 581, 592 (A.G. 2019).
Thanks to Prof. Jaclyn Kelley-Widmer for sharing her expertise on these terms. See Jaclyn Kelley-Widmer and Hillary Rich, “A Step Too Far: Matter of A-B-, Particular Social Group, and Chevron,” 29 Cornell J. of Law and Public Policy 345, 373 (2019).
Yusupov v. Att’y Gen. of U.S., 518 F.3d 185, 201 (3d Cir. 2008).
Id. at 203-204.
If it had done so, EOIR would undoubtedly have defended the move through the traditional, completely acceptable, totally normal method of issuing a “Myths vs. Facts” sheet. The document might contain the following entry: “Myth: EOIR issued a rule banning asylum to anyone wearing any color at any time. Fact: That’s completely absurd! Only those wearing white (which technically might not even be a color) are banned, and even then, only after Labor Day. As Pantone lists 1,867 colors, white consists of .05 percent of all colors one could wear. And that’s only if white is in fact a color. And, again, only after Labor Day.”
Copyright 2021 Jeffrey S. Chase. All rights reserved.
Republished by permission.
*********************
Jeffrey’s article points out how deeply the corruption and racism of the regime have penetrated into the Federal Bureaucracy, even infecting supposedly “professional and apolitical” agencies like CDC. Fixing this will be a formidable task for the Biden-Harris Administration.
But, there is a larger issue here: Why has the Supremes’ GOP majority “lapped up” the transparent pretexts for unconstitutional actions presented by the regime’s ethics-challenged DOJ lawyers?While an impressive array of U.S. District Court Judges, from both parties, have generally courageously stood tall for the rule of law against White Nationalist abuses, not so the GOP majority of the Supremes!
Let’s go back to the beginning of the regime. After a string of lower Federal Court defeats, “ethics-free” DOJ lawyers massaged and slightly watered down Trump’s “Muslim Ban” and repackaged it as a bogus “national security” measure. But, even as these disingenuous lawyers were advancing this bogus pretext in court, Trump was reassuring his White Nationalist base that this was indeed the “Muslim Ban” he had promised to his supporters.
Nevertheless, the Supremes’ GOP majority “bought into” the patently (and demonstrably) bogus “national security” pretext, hook, line, and sinker:
Of the Supreme Court’s decision on Muslim ban 3.0, Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said, “This ruling will go down in history as one of the Supreme Court’s great failures. It repeats the mistakes of the Korematsu decision upholding Japanese-American imprisonment and swallows wholesale government lawyers’ flimsy national security excuse for the ban instead of taking seriously the president’s own explanation for his action.”
“It is ultimately the people of this country who will determine its character and future. The court failed today, and so the public is needed more than ever. We must make it crystal clear to our elected representatives: If you are not taking actions to rescind and dismantle Trump’s Muslim ban, you are not upholding this country’s most basic principles of freedom and equality.”
In doing so, the GOP Supremes’ associated themselves with a long line of racially biased pretexts used by courts to uphold invidious discrimination that violated our Constitution
Internment of Japanese-Americans (but not German-Americans) is about national security.
Truth: Dehumanize, punish, and dispossess Japanese Americans on the West Coast;
Poll taxes are about raising revenue.
Truth: Preventing African-Americans from voting;
Literacy tests (“grandfathering” ignorant White guys) are about insuring an informed electorate.
Truth: Excluding African-American voters;
Separate is equal.
Truth: Insuring that African-Americans will be educationally disadvantaged;
Voter ID laws are about election integrity.
Truth: Designed by a primarily White GOP ruling class to suppress African American, Latino, and other minority voters who tend to support Democrats;
Gerrymandering to favor the GOP can be solved through the political process.
Truth: Gerrymandering is intended by the GOP to rig the political process so that voters of color will never achieve political representation proportional to their numbers.
These are just a few of the obvious examples of how the “legal power structure” has often been on the “wrong side of history.” Sadly, it continues with today’s GOP Supremes’ majority which often embraces obvious pretexts and bogus “right wing legal gobbledygook” to systematically dump on vulnerable minorities and others whose political power and humanity they refuse to recognize.
Finally, to reinforce what Jeffrey and others have said, we have a legal obligation to protect refugees.Article 33 of the Convention to which we are party, now incorporated into the INA, is mandatory, not “optional” or “discretionary.”
As I pointed out before, refugees more often than not arrive in times of international crisis and turmoil. “Tough times” or internal problems (in this case aggravated and magnified by a maliciously incompetent regime) are NOT a legal (not to mention moral) basis for us to jettison our legal obligation to offer them protection.
Had the Supremes courageously and unanimously stood up for the Constitution, rule of law, and simple human decency against the regime’s obvious lies, false narratives, overt racism, religious bigotry, and general disregard for the rule of law (now in full, foul bloom every day), the last four years might have been very different. Lives lost forever could have been saved.
Folks, here we are, two decades into the 21st Century. Yet, we have a highly “un-representative” Supremes’ GOP majority that has willingly promoted the anti-democracy antics of, and carried water for, a patently corrupt White Nationalist regime seeking to “Dred Scottify” tens of millions of persons of color, religious minorities, and those “suspected” of not supporting the GOP.
Even if many would like to, this is not something that can simply be swept under the table (again). Failure of the Supremes majority to stand up for the individual rights and human dignity of all persons in America is something that will haunt us until it is fixed or we disappear as a nation!
Lousy judging has a huge cost for humanity and democracy. We need and deserve better from the highest levels of our privileged, yet too often ineffective andfeckless in the face of tyranny, life-tenured judges!
Better Judges for a Better, Fairer America.🇺🇸 Make Equal Justice Under Law ⚖️ A Reality Rather Than an Ongoing, Judicially-Enabled, Charade!
Watching the Trump campaign’s attacks on the election results, I now see what might have happened if, rather than nip and tuck the Trump agenda, responsible Justice Department attorneys had collectively — ethically, lawfully — refused to participate in President Trump’s systematic attacks on our democracy from the beginning. The attacks would have failed.
. . . .
*******************
Read the full op-ed at the link. That’s right Erica. Lack of ethics, morality, and failing to uphold the Constitution and the rule of law have consequences. Helping to “custom design” obvious pretexts for racist and hate inspired policies, for consumption by right-wing judges who only seek “cover” for going along to get along with fascism, is wrong. Duh!
It’s no surprise that the clearly unconstitutional and racially and religiously bigoted “Travel Ban,” willingly embraced by an intellectually dishonest and morally compromised Supremes majority, was first on the list in Erica’s “confession.”
But, don’t expect any apologies from the vast majority of Trumpist lawyer/enablers who violated their oaths of office or from the big time law firms (one where I was formerly a partner) who have granted them undeserved refuge at fat salaries! Nor should we expect large-scale redemption from the legions of Government lawyers in DOJ, DHS, and elsewhere who will assert the “Nuremberg defense” of “just following orders.”But, that doesn’t mean that the rest of us can’t demand some accountability for participation inwhat are essentially “crimes against humanity.”
Erica’s article largely echoes what my friend and colleague Judge Jeffrey Chase, many of our colleagues in the Round Table of Former Immigration Judges, ⚔️🛡 and numerous members of the New Due Process Army (“NDPA”) have been saying throughout this Administration. Indeed, I frequently have noted that the once-respected Solicitor General’s Office and EOIR operated as basically “ethics free zones” under the disgraced “leadership” of Sessions, Whitaker, and Barr.
It’s also why the the Biden-Harris team that takes over at DOJ must:
immediately remove all the current “executives” (and I use that term lightly) at EOIR as well as all members of the BIA and transfer them to positions where they can do no further damage to asylum seekers, migrants, their (often pro bono or low bono) lawyers, or the rest of humanity;
replace them with qualified individuals from the NDPA; and
be circumspect in eventually making retention decisions for Immigration Judges, taking into account public input as to the the degree to which each such judge’s jurisprudence during the Trump kakistocracy continued to reflect adherence to constitutionally required due process and fundamental fairness to migrants, respect for migrants and their representatives, best practices, and interpretations that blunted wherever reasonably possible the impact of the kakistocracy’s xenophobic, racist, White Nationalist policies.
American justice has been ill-served by the DOJ and the Immigration Courts over the past four years. That’s something that must not be swept under the carpet (as is the habit with most incoming Administrations).
The career Civil Service overall, and particularly complicit and often ethics-free government lawyers,failed to put up the necessary resistance to an overtly anti-American regime with an illegal and immoral agenda. Lives were lost or irreparably ruined as a result. That’s a big-time problem that if not addressed and resolved will likely make continuance of our national democratic republic impossible.
⚖️🗽🧑🏽⚖️👍🏼🇺🇸Due Process Forever! Complicity Never☠️🤮🏴☠️👎🏻!
PWS
12-21-20
“EOIR Clown Show Must Go” T-Shirt Custom Design Concept
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”“Justice” Star Chamber StyleMe
Friends, you know, and I know, what is the biggest crisis facing the American justice system today. One that undermines and threatens racial justice, social justice, equality before the law, voting rights, American values, and indeed the very foundations of our democratic institutions and our justice system.
It’s imperative that our incoming Administration and its leaders fully recognize the overwhelming importance and extreme urgency of immediately ending the ongoing, deadly, and dangerous “Clown Show” at EOIR – the Executive Office for Immigration Review.
Under the defeated but not yet departed regime, EOIR has been weaponized by White Nationalist nativists to function as America’s Star Chambers. Once envisioned by its founders, including me, as a potential “jewel in the crown” of American justice, EOIR now has become an ungodly nightmare of anti-due process, anti-immigrant propaganda, bad judges, bogus stats, uncontrollable backlogs, malicious incompetence, stupid regulations, daily doses of irrationality, abuse of private attorneys, and institution of “worst practices.” But, it doesn’t have to be that way! No, not at all!
With courage, bold action, and, most important, the right people in place in leadership and key judicial positions, EOIR can be fixed: sooner, not later. The Immigration Courts can, indeed, through teamwork and innovation become the world’s best courts guaranteeing fairness and due process for all, promoting a model of best practices for the Federal Judiciary as a whole, and providing a trained and ready source of due-process oriented judges with strong immigration, human rights, and equal justice backgrounds for the Article III Judiciary and public policy positions.
EOIR will then be positioned for the essential transition to an Article I independent U.S. Immigration Court when we have the votes.
But, it will require a far more progressive, visionary, and aggressive approach than past Democratic Administrations. We must immediately (and legally) clear out the deadwood and get the problem solvers from the New Due Process Army (“NDPA”) — mostly now in the NGO, clinical, and private sectors, folks like you and your colleagues — in place to fix this horribly broken system.
Dahlia: I wonder what you thought of Barrett’s statement, about how she reads each of her opinions through the eyes of the losing party. As you have written, the losing party tends to be the prisoners, the Black worker, the teen seeking abortion, the asylum seeker. It reminded me of Justice Samuel Alito testifying at his hearings about his great solicitude for immigrants.
Mark: Barrett’s opening statement made me think about one of her worst decisions (so far), in which she approved the deportation of an asylum seeker because there were small, trivial variations in his account of persecution. Over a dissent, Barrett said, yep, this asylum seeker must be sent home to be tortured and murdered because tiny details in his story changed over time. Would a judge who views the case through the eyes of the asylum seeker really dismiss his claims so cavalierly? I doubt it.
. . . .
************************
Read the complete dialogue at the link.
So much for intellectual honesty! It also shows Barrett’s fundamental lack of experience and legal understanding of what Immigration “Courts” really are and how they have been politicized and weaponized against asylum seekers by “judges” who report to overtly biased and xenophobic politicos in the Executive Branch. Just how would this “naked farce” satisfy any rudimentary concept of Due Process? Clearly it doesn’t. And just as clearly, intentionally tone-deaf judges like Barrett don’t care!They lack the guts, relevant experience representing migrants, and the intellectual presence to stand up for the Constitutional and human rights of “the other.”
How would YOU like to be sentenced to torture and/or death based on trivial inconsistencies found by an Immigration “Judge” working directly for the Attorney General and his regime in a badly flawed assembly line process designed to achieve political policy objectives, not justice?
Also, did anyone else pick up the facial absurdity of Barrett’s disingenuous claim to be “apolitical” while pledging allegiance to GOP “superhero” the late Justice Antonin Scalia, probably the most overtly “political Justice” of modern times?
Bottom Line:Once you’re out of the womb, this is one mother you don’t want on your case!🏴☠️☠️⚰️
Better Judges For A Better America! Judge/Justice Barrett is part of the problem, not the solution! The best way to insure that she is among the last, far-right, anti-democracy, inhumane judges given life tenure on the Supremes or anywhere else, vote ‘em out, vote ‘em out! Then, we’ll discover the “true meaning” of Barrett’s “I’m not there to make policy nonsense!” (Indeed, I would submit that the sole reason for her appointment was the GOP’s belief and expectation that she will reliably elevate disingenuous right-wing policies, biases, and prejudices over the Constitutional, individual, and human rights of individuals and that she will be a steadfast opponent of Constitutionally-required equal justice under law.)
Justice for the George Floyds, Breonna Taylors, dehumanized dead asylum seekers, and wrongfully imprisoned migrant kids of the world (e.g., the end of unconstitutional “Baby Jails”) will require a different type of “Justice” than Amy Coney Barrett in the future! Far from being truly “independent” and “apolitical,” Barrett is likely to be the perfect representative of the warped man who appointed her and his anti-democracy party. And, that’s likely to cause problems for all Americans of good will far into the future!
Sorry for the small print. But, well worth the read.
Compare the courage and fidelity to due process, fundamental fairness, equal justice for all, and defense of human dignity demonstrated by brilliant lawyers like Michelle Mendez, Aimee Mayer Salins (former BIA JLC), and the terrific CAIR litigators with the warped right wing, anti-constitutional, anti-humanity jurisprudence of Trump’s Supreme Court choice, Judge Amy Coney Barrett:
Faced with two plausible readings of a law, fact, or precedent, Barrett always seems to choose the harsher, stingier interpretation. Can job applicants sue employers whose policies have a disproportionately deleterious impact on older people? Barrett said no. Should courts halt the deportation of an immigrant who faced torture at home? Barrett said no. Should they protect refugees denied asylum on the basis of xenophobic prejudice? Barrett said no. Should they shield prisoners from unjustified violence by correctional officers? Barrett said no. Should minors be allowed to terminate a pregnancy without telling their parents if a judge has found that they’re mature enough to make the decision? Barrett said no. Should women be permitted to obtain an abortion upon discovering a severe fetal abnormality? Barrett said no.
There is no question that, if confirmed, Barrett would cast the fifth vote to either hollow out Roe v. Wade or overturn it altogether. Similarly, there is no doubt that Barrett would dramatically expand the Second Amendment, invalidating gun control measures around the country. It’s quite possible, perhaps even likely, that within a year of her confirmation, Americans will be forbidden from terminating a pregnancy in 21 states—but permitted to purchase assault weapons and carry firearms in public in every state.
In other words, guns yes; human rights and human dignity, no! Some lawyers spend their lives saving lives and advancing humanity; others spend them pursuing and spreading anti-humanitarian, right wing dogmas. Why are commitments to cruelty, inhumanity, and a fundamentally unjust society things to “tout” in a judicial candidate? You need to look inside the deep perversity of the GOP minority who control our nation and are running it into the ground to get the answer.
There are thousands of progressive lawyers, many of them women and minorities, committed to standing up for equal justice for all who are better qualified than Judge Barrett. There is something wrong with a system that elevates the wrong people to the judiciary and other high offices.
It’s time to establish meritocracy and save our democracy. Vote to throw the GOP out of office and end the selection of far-right judges whose reactionary views and lack of empathy for the most vulnerable in society are far outside both the reality of our diverse nation and our future as a vibrant, progressive democracy that will promote equal justice and human rights at home and abroad!
Keep the future Judge Barretts where they belong — on the sidelines and in the margins of our legal system, while those with a better view of the Constitution, the rule of law, and human progress take their rightful places in positions of power and progressive influence in all there branches of our Government.
Judge Barrett parrots great admiration for RBG while aiming to trash her legacy of fairness and equality with a far-right, exclusive, intolerant agenda. In the future, we need Federal Judges who will constantly confront Judge Barrett, her soon-to-be-fellow GOP Supremes, and other righty judges bent on taking us back to the darkest corners of our past. Make them face the truly courageous and enlightened legacy of RBG and others like her. Force the “Barretts of the world” to reckon with their own smugly disingenuous jurisprudence and their lack of commmitment to humanity and true equality before the law for all persons in the U.S.! Constantly confront complicit courts for change!
Better judges for a better, fairer America!
This Fall, vote like your life and the future of humanity depend on it! Because they do!
BY DEVLIN BARRETT AND MATT ZAPOTOSKY report for WashPost:
Attorney General William P. Barr delivered a scathing critique of his own Justice Department Wednesday night, insisting on his absolute authority to overrule career staff, whom he said too often injected themselves into politics and went “headhunting” for high profile targets.
Speaking at an event hosted by Hillsdale College, a school with deep ties to conservative politics, Barr directly addressed the criticism that has been building for months inside the department toward his heavy hand in politically sensitive cases, particularly those involving associates of President Trump.
“What exactly am I interfering with?” he asked. “Under the law, all prosecutorial power is invested in the attorney general.”
Barr’s comments were remarkable, in that the head of the Justice Department catalogued all of the ways in which he thought his agency had gone astray over the years, and in its current formulation harms the body politic. Barr has drawn considerable criticism for intervening in criminal cases in ways that help benefit the president’s friends.
Barr said it was he, not career officials, who have the ultimate authority to decide how cases should be handled, and derided less-experienced, less-senior bureaucrats who current and former prosecutors have long insisted should be left to handle their cases free from interference from political appointees.
Barr said that argument, in essence, means “the will of the most junior member of the organization” would make decisions, but he insisted he would not “blindly” defer to “whatever those subordinates want to do.”
“Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it is no way to run a federal agency,” Barr said.
The attorney general, the nation’s top law enforcement official, spent much of the speech eviscerating the idea of the Justice Department as a place where nonpolitical career prosecutors should be left to decide how sensitive cases are resolved.
. . . .
*****************
Read the rest of the article at the link.
I’m sure this does wonders for morale at the DOJ! But, demoralizing all the career lawyers and pushing them out the door appears to be part of the program. After all, the regime initially tried to “buy out” the holdover members of the BIA. Morale at the Immigration “Courts” is already at an all-time low!
Career civil servants at the DOJ and elsewhere actually work for the people of the U.S., not personally for Billy, other political appointees, or the President. Government employees take an oath to uphold the Constitution, not of loyalty to the President, the AG, or any other political official.
Billy clearly has been running the Immigration “Courts” as a politically weaponized part of the regime’s White Nationalist, authoritarian, race-driven immigration enforcement agenda. Funny how long it has taken the overall legal community to see that Barr basically considers the entire legal system, including the Article III Courts, as just as subservient as the Immigration “Courts.” And, to date, the Supremes have done little to discourage that view.
He is carrying out a personal agenda of replacing representative democracy with an authoritarian state where everybody and everything is subservient to an all-powerful totally unconstitutional “Unitary Executive” (actually a bogus right-wing “invented concept” with no actual legitimate basis in American political history, as cogently “debunked” by Ayer in his podcast). That certainly makes him one of the two most dangerous men in America!
Billy did say one thing I agree with. Politicos, particularly hacks like Billy and Trump, can be held accountable at the ballot box. Indeed, given the feckless performance of the GOP Senate and the overall failure of the Federal Courts to stand up to tyranny, that appears to be the very last hope for our democracy.
Had enough of the Liar in Chief, Billy the Bigot, Moscow Mitch, & Co? Vote the GOP out of every public office at every level this Fall, while there is still a chance to save our democracy!
This Fall, vote like your life and the continued existence of American democracy depend on it! Because they do!
Don Ayer American Lawyer Former U.S. Deputy Attorney General — Photo www.ali.orgDahlia Lithwick Supreme Court Reporter Slate Wikimedia Commons — Public Domain
Has Bill Barr Broken the Department of Justice Forever?
Bill Barr is not simply doing the president’s bidding, he is following his long-held beliefs about America.
What is Bill Barr doing, and why is he doing it? Donald Ayer, former U.S. attorney and principal deputy solicitor general in the Reagan administration and deputy attorney general under George H.W. Bush, on the attorney general’s ideology, how it predates Trumpism, and why it’s so dangerous.
In the Slate Plus segment, Mark Joseph Stern breaks down the latest voting breakdown in Wisconsin’s Supreme Court, the latest Census case dead end, and the stupidity of Trump’s latest SCOTUS list.
************
How timely! Just yesterday on Courtside, I gave Billy the Bigot the nod over Jeff “Gonzo Apocalypto” Sessions and “John the Con” Mitchell in the hotly contested race for “The Worst AG in Modern American History.”
I still think that Gonzo could have pulled it out if he had only been given some more time! His overt racism, misogyny, intellectual dishonesty, fraud, stupidity, bias, and “crimes against humanity” set a standard for morally corrupt officials that seemed unassailable until Billy the Bigot went into “full destructo mode.”
As someone who started working at the DOJ in 1973, I witnessed (if only from the crowd standing outside the Great Hall) the “voluntary departure” of Elliot Richardson following the “Saturday Night Massacre,” where he resigned rather than carry out President T. Dick Nixon’s inappropriate demand that he fire the Watergate Special Prosecutor. Could you imagine Billy the Bigot refusing any demand from “His Don,” no matter how illegal, unethical, and/or outrageous? When it comes to the history of Government corruption and the DOJ, I know what I’m talking about.
Heck, I even survived long enough to get “purged” myself by Ashcroft in 2003, during my “DOJ reincarnation.” So, I’m no stranger to the imperfections and shortcomings in the supposed “independence” of the DOJ.
Nevertheless, I heartily agree with Don Ayer that the dishonesty, deceit, bias, bigotry, racism, and scofflaw attitudes installed into DOJ operations by Gonzo and Billy are light years beyond prior abuses I have witnessed during my nearly five decades in the law.
Don Ayer, my former DOJ colleague and partner at Jones Day DC, confirms what I have been saying for a long time on Courtside about Billy the Bigot’s unconstitutional and unethical control of the Immigration Courts.
Listen to this podcast and ask yourself: “How could any foreign national, particularly an asylum seeker, non-Christian, or person of color get a fundamentally fair and impartial hearing before ‘judges’ selected, directed, evaluated, and governed by Billy?” If that’s not enough, if the foreign national does happen to win, Billy just unilaterally intervenes and changes the results, even in cases completed back in the Bush II Administration!
Obviously, this isn’t justice; to use Don Ayer’s term, this is “Banana Republic” authoritarian injustice.
So, how have Congress and the Roberts-led Supremes let Billy get away with this disgraceful unconstitutional mockery of everything our nation stands for? Good question with no happy answer.
During Watergate, it took a concerted effort by a bipartisan Congress, the Federal Courts including the Supremes, and independent lawyers and investigators working for the Watergate Special Prosecutor within the DOJ to bring about Nixon’s forced resignation in the face of inevitable impeachment and conviction.
By contrast, today’s GOP Senate and the GOP-appointed “JR Five” on the Supremes have shown themselves to be shameless toadies, sycophants, and enablers in the face of clearly abusive Executive overreach and tyranny. The post-Watergate ethical reforms, checks, and balances put in place by former GOP-appointed AG Ed Levi, cited by Don, have been completely dismantled in broad daylight by the Trump regime with no pushback from Congress or the Supremes. This serious, entirely preventable, deterioration and abandonment of the rule of law and ethical norms cuts across all three Branches of Government and threatens the very foundations of our democracy.
Assuming (by no means a certainty) that our nation puts it together this Fall to remove the Trump kakistocracy, we need a careful and thoughtful re-examination of the types of individuals we are rewarding with life-tenured judicial appointments and why those now on the bench, as a group, failed so miserably to uphold the Constitution, protect human dignity and decency, and thwart the outrageous scofflaw agenda of Trump and his cronies like Billy the Bigot and neo-Nazi Stephen Miller.
Don Ayer specifically mentions the outrageous “Wall Charade” where Trump illegally and unethically steamrolled legislation, the Constitution, the public purse, and common sense to divert money to his “Political Wall” using a patently bogus and fabricated “national security” pretext.
But, here’s the rest of the story: When Trump-owned Solicitor General Noel Francisco presented this “false claim” to the Supremes, disingenuously asserting a clearly fabricated “emergency” he got the JR Five to roll over! Instead of upholding the lower court’s correct injunction and referring Francisco to bar authorities for unethical conduct, they actually approved this farce, by a 5-4 “party line vote.” Of course, that spineless performance has greenlighted other racist-driven White Nationalist policies and an aura of impunity among the Trump regime kakistocracy.
Gee wiz, a Federal Court actually determined some time ago that DHS honchos Chad “Wolfman” Wolf and Ken “Cooch Cooch” Cuccinelli are both illegally serving in their current positions. But, in the “no consequences no accountability” atmosphere established by the Roberts Court, Cooch and Wolfie continue to abuse migrants with arrogant impunity. They obviously have no fear of accountability. Even if they got in trouble, Trump would simply run over the Constitution to pardon them.
As I constantly say, “it’s not rocket science.” There are scores of talented courageous lawyers out there in the private, NGO, and academic sectors who could have out-performed the “JR Five” in protecting our republic. Why are they stuck in the trenches rather than sitting on the Federal Benches?
When Congress and the Executive fail, the nation turns to the supposedly independent Article III Courts as democracy’s last defender. But, Roberts & Co. have been more than “MIA” — they have actively contributed to the downfall with outrageous derelictions of duty on voting rights, civil rights, and grotesque, unconstitutional “Dred Scottifiction” of migrants of color that actually harms, maims, and kills innocent humans almost every day.
Think that “Dred Scottification” couldn’t happen to you? Guess again! Don Ayer says all of our freedoms and democratic norms will be on the line if Billy and “His Don” get another four years to complete their destruction. Believe him!
This Fall, vote like your life depends on it! Because it does!
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
******************
☠️⚠️‼️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)
Opinion by the Editorial Board August 4 at 6:20 PM ET
COVID-19 has exploded at migrant detention centers nationwide, infecting detainees and employees alike and seeding the disease aboard deportation flights to countries ill-equipped to respond, especially in Latin America. The facilities, run by U.S. Immigration and Customs Enforcement, are petri dishes of contagion, and the residents — many of whom have no serious criminal record — are sitting ducks in the crosshairs of an inhumane policy. A federal judge has ordered the release of migrant children at two ICE family detention centers in Texas and one in Pennsylvania, having found them at risk to the virus and to spotty enforcement of safety measures. But across the country, scores more facilities have been hit hard by the pandemic, and ICE has been unable to contain it. [Full coverage of the coronavirus pandemic] Roughly 1,000 new covid-19 cases have been diagnosed in ICE facilities since early July, bringing the number who have tested positive for the disease since March to roughly 4,000. That’s roughly a fifth of all those who have been tested, though some were infected before ICE took them into custody. Courts have ordered more than 500 at-risk detainees released, and ICE has released an additional 900 at its own initiative. Those reductions, along with ongoing deportations, have cut the detainee population by 40 percent since March, to roughly 22,000 now. That’s good, but it is clear that the agency’s steps to mitigate the outbreak have been inadequate. It is also clear that testing at the facilities has lagged, proper distancing at some is insufficient, and health care is not equal to the task of containment. At the Farmville Detention Center in Virginia, west of Richmond, nearly two-thirds of 400 detainees have tested positive for the virus in recent weeks. Moreover, ICE has been complicit in accelerating the pandemic’s reach into Central America, the Caribbean and elsewhere, by deporting tens of thousands of migrants since the spring, including some who were infected. At least a dozen countries assert that deportees arrived with the virus. Many were not tested before boarding the flights. On one deportation flight to India in May, 22 passengers — about 15 percent of those onboard — tested positive upon arriving in India. In Guatemala, authorities say more than 160 deportees who have arrived since April tested positive for the virus. “We understand the United States wants to deport people,” said Guatemalan President Alejandro Giammattei in May. “What we don’t understand is why they send us all these contaminated flights.” [We are interested in hearing about how the struggle to reopen amid the pandemic is affecting people’s lives. Please tell us yours.] Advocates and public health officials have urged ICE to accelerate the release of at-risk detainees, who can be fitted with ankle monitors to encourage their appearance at immigration court proceedings. ICE has done some of that; it is critical that it do more. To continue detaining nonviolent detainees as the virus tightens its grip on ICE facilities is pointless and dangerous — for detainees and for employees, scores of whom have been infected with covid-19. It’s past time for ICE to intensify the fight against covid-19, and reassess a policy that has failed to contain a pandemic behind bars.
************************
ICE is a White Nationalist enabler operating within a White Nationalist kakistocracy.
Expecting ICE to do the right thing without being ordered to do so by Congress or the Federal Courts is absurd. We’re in the middle of a deadly meltdown of our democratic institutions.
And, led by the Roberts’ Court’s spineless complicity in the face of clear unconstitutionality, illegality, immorality, and inhumanity from the Trump regime, the failure of the Federal Courts to take a strong, unified approach against the “crimes against humanity” committed by the Trump regime on migrants and others is a national disgrace. Something we have to consider as a nation moving forward.
Better judges for a better America! Time to stop appointing “Dred Scottifyers” and non-believers in due process, human rights, and equal justice for all to our life-tenured courts! The damage they have done will take decades to repair. We can’t afford to continue the GOP’s recent tradition of elevating bad judges who won’t stand up for and don’t believe in American democracy.
When our nation is experiencing massive and deadly institutional failure and a failure of legal and moral leadership, we must start looking at the qualifications and values (or in some cases the rather obvious lack thereof) of the folks in those failing institutions! In a democracy, bad leadership doesn’t “drop out of the sky.” It’s a product of bad decisions and apathy among those with the power to select our leaders. That means all of us who can vote or encourage others to vote.
This November, vote like your life and the future of our democracy depend on it! Because they do!
Atty. Gen. William Barr left us with a terrifying certainty in the wake of his testimony Tuesday in front of the House Judiciary Committee: Under him, the Department of Justice stands ready to advance any pro-Trump policy, justifying it on the basis of a blinkered, tenuous view of the facts and the law, or maybe just Barr’s personal ideological intuitions.
For all its finger-wagging, the Judiciary Committee is not in a position to constrain the attorney general. There is no real brake on Barr’s conduct short of a Trump loss in November. Or, to adopt Barr’s own unsettling gloss, a Trump loss that is sufficiently “clear” that he and his boss would accept it.
Since the hearing, commentators have seized on a couple of blows that Democrats on the Judiciary Committee — Reps. Eric Swalwell (D-Dublin) and Pramila Jayapal (D-Wash.) primarily — landed on the attorney general. But there was nothing close to a knockdown, and the hard facts remain: The House will not impeach Barr and President Trump will continue to give him full rein.
It’s no secret that the Democrats in Congress (and more than half of the country) view Barr as Mephistopheles — dishonest, partisan, corrupt, even racist. He did nothing Tuesday to try to revise that view; in fact, he seemed indifferent to it.
Norms of evenhandedness, professionalism and especially political disinterest, which traditionally check U.S. attorneys general, do not moderate his conduct. He championed every partisan act his DOJ has taken on the president’s behalf, blandly claiming they reflected the faithful application of the rule of law.
For example, when he defended the highly unusual deployment of federal agents in Portland, Ore., Barr described a “Batman”-like dystopia in which a few U.S. marshals were beset by a marauding horde of uncontrollable professional anarchists. If that were accurate, it would be hard to quibble with sending in the feds.
But the justification dries up immediately if the protests were, as a lot of the reporting on the ground indicates, largely peaceful, and if local law enforcement were capable of defending the Portland federal courthouse and separating lawbreakers from peaceful protestors. (The announcement Wednesday that the Department of Homeland Security’s mystery troops were withdrawing suggests the argument for the invasion was tenuous all along.)
Or consider Barr’s legally tortured defense of the president’s memo attempting to exclude immigrants who are in the U.S. illegally from the 2020 census. The plain language of the 14th Amendment, as well as a unanimous opinion of the Supreme Court, leaves no room for argument: Everyone who “inhabits” the U.S. must be counted.
But Barr claims that Congress has delegated to the Commerce Department an ability to advance an Orwellian definition of “inhabitant.” He called it an “arguable position.” It isn’t arguable; it’s wrong.
And given that it is the attorney general’s job to uphold the law of the land, he shouldn’t even bring up the theory, regardless of the half- or quarter-baked views of the president.
Barr’s partisan proclamations went on and on, with this whopper as a high point: “From my experience, the president has played a role properly and traditionally played by presidents.”
. . . .
********************
Read the rest of the op-ed at the link.
Beyond Congressional fecklessness, perhaps the most disturbing and scary aspect of Billy’s anti-democracy, anti-humanity, racist agenda is that it has received only “light pushback” from the supposedly independent Article III Courts, particularly the Supremes’ majority led by Roberts.
Private practitioners who made the types of specious, disingenuous, and wrong arguments to Federal Courts advanced by Billy and fellow Trump toady Solicitor General Noel Francisco and their minions would probably have been disbarred or even in jail by now. Not only do these guys continue their wanton destruction of our legal system, but Roberts & Co. sometimes actually reward the DOJ’s fraud, racism, and bad faith.
Crooked and corrupt politicos are one thing. But, Supreme Court Justices who won’t call them out for their invidious motivations, won’t stand up for equal justice under law, allow racist abuses in the guise of patently bogus “national security” and Executive prerogative pretexts, won’t protect refugees, asylum seekers, children, or migrants of color, favor tyranny over humanity, and allow their courts to be paralyzed by frivolous Government litigation, dilatory appeals, and transparently bogus procedural gimmicks are the real problem here!
As Litman points out, despite the “smokescreens” thrown up by Barr and complicit courts, there’s really no ambiguity about what’s happening here. It’s straightforward! It’s a full scale attack on our justice system, our democracy, and our humanity by a bunch of would-be facist thugs operating out of the Executive Branch of our Government. America needs better Justices and Federal Judges who will cut through the legalistic BS, show courage, have integrity, and stand up for democracy, humanity, and equal justice for all!
