Office of Immigration Litigation (“OIL”) – Page 8

CNN’S TAL KOPAN ON SANCTUARY CITIES: Trump Administration’s Statements Continue To Be a Goldmine Of Evidence For Opponents!

http://www.cnn.com/2017/07/07/politics/sanctuary-cities-trump-administration-words/index.html

Tal reports:

“Washington (CNN)The Trump administration does not shy away from tough rhetoric, and lawyers representing sanctuary cities are hoping that will come back to haunt it in court.

Attorneys representing Santa Clara County in California petitioned a federal judge late Thursday to enter a collection of statements made by members of the administration into the record in their case, saying that the administration’s public statements directly contradict what Justice Department lawyers are arguing before the court.

It’s the latest example of attorneys trying to use the public statements of the Trump administration against itself, a theme in court battles designed to try to block pieces of President Donald Trump’s agenda.

Santa Clara County is the lead plaintiff in a case challenging a piece of Trump’s January executive order on immigration that targeted sanctuary jurisdictions, a catch-all term generally used to describe states, cities and localities that do not fully cooperate with federal immigration enforcement.

The federal judge in the case in April blocked the administration from enforcing part of the order — a broad threat to take away federal funding from jurisdictions determined to be so-called sanctuaries.

Trump admin scales back threat to sanctuary cities

The judge allowed a narrow interpretation of the threat to be enforced, hinging on a small piece of US law that requires localities to transmit immigration information about individuals to the federal government when asked. The judge said the government could withhold a small subset of federal grants related to law enforcement if cities didn’t comply with that law — a requirement already put in place as a precondition for those grants late in the Obama administration.

Despite months of statements that the administration would seek to potentially take away more grant monies for a broader range of perceived noncooperation from jurisdictions, the Justice Department in May released guidance clarifying that the narrow range of actions allowed by the federal judge were the only punishment the government intended to pursue.

After that, the Justice Department asked the court to dismiss the case, based in part on the new guidance.

But attorneys for Santa Clara County are asking the court to not buy the government’s argument, pointing to statements since the guidance that go far beyond what it says.

Attorneys are asking the judge to allow them to file an additional argument in the case, which compiles those statements.

Examples include testimony of Immigration and Customs Enforcement acting Director Thomas Homan before Congress in June, where he said the government expects “not only sharing the information, but (to) allow us access to the jails” — the latter piece of which is not required by US law. The attorneys also note that Homeland Security Secretary John Kelly told Congress three days after the guidance memo: “With respect to ‘the Sanctuary Cities thing,’ he said: ‘Frankly, I don’t really know what it means. I don’t think anyone out there knows what it means.'”

Judge blocks part of Trump’s sanctuary cities executive order

The attorneys argue that because of the administration officials’ comments, the court can’t simply rely on the guidance memo from the Justice Department — accusing the administration of more than “moving the goalposts.”

“Defendants’ shifting positions, clarifications, and interpretations of the Executive Order make clear why the Court’s injunction is necessary,” the attorneys wrote. “Between counsel’s representations, the AG memorandum, relevant congressional testimony, and the President’s own statements, defendants aren’t merely moving the goalposts in this litigation; they’re switching sports entirely.”

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Read Tal’s complete article at the link.

Arrogance and ignorance are usually a toxic combination in litigation.

PWS

07-07-17

DHS MISTREATS KIDS: U.S. District Judge Dolly Gee Finds That DHS Has Blown Off Her Prior Orders & Continues To Mistreat Children In Detention!

http://immigrationimpact.com/2017/06/28/government-continues-ignore-rights-children-detention-court-finds/

Karolina Walters writes in Immigration Impact:

“Despite being among some of the most vulnerable, children seeking asylum in the United States often fare the worst. Upon entering the United States, children are often detained for extended periods in violation of a long-standing agreement known as the Flores settlement.

The Flores agreement essentially acts as a contract between the government and children held in immigration custody. On Tuesday, a federal district court judge ruled once again that the government is failing to meet its obligations to children held in immigration custody.

The court found a number of violations, including holding children too long in detention, in substandard conditions, and in non-licensed facilities. In addition, the court ruled that the government is required to look at each child’s case individually to determine whether release from custody is appropriate—the government may not rely on any blanket standard to avoid the responsibility of assessing each case individually.

The Flores agreement is a nationwide settlement reached in 1997. In this settlement, the government agreed that children taken into immigration custody would be placed in the “least restrictive setting appropriate to [their] age and special needs” and would be released “without unnecessary delay,” preferably to a parent. The settlement also requires that if a child is not released to a parent, adult relative, or an appropriate guardian, children must be placed in non-secure facilities licensed for the care of dependent children within five days of apprehension.

Two years ago, the Center for Human Rights and Constitutional Law (CHRCL), on behalf of immigrant children, brought suit to enforce the Flores settlement. In July and August of 2015, U.S. District Court Judge Dolly M. Gee said the government must apply the settlement to all minors, including those detained with family members. Tuesday’s order from Judge Gee outlines the particular ways in which the government is in breach of the Flores settlement and how the court seeks to ensure compliance going forward.”

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Read the complete article at the link.

While AG Jeff Sessions is out whipping up xenophobic frenzy and promoting the need for an “American Gulag” to support his “Gonzo Apocalypto” immigration enforcement agenda, he ignores his real legal and constitutional duties: Get General Kelly and the rest of the folks over at DHS to obey the law and stop mistreating kids!

That someone like Sessions with such totally warped values and lack of any sense of justice or decency should be in charge of our supposedly due process providing U.S. Immigration Court system is a continuing travesty of justice.

PWS

06-29-17

THE ASYLUMIST: Jason Dzubow Wins Key “Firm Resettlement” Case — Wonders Why BIA Won’t Publish When Failing System Cries Out For More Consistency!

http://www.asylumist.com/2017/06/22/the-bia-on-firm-resettlement-2/

“Ultimately, the BIA accepted one of several arguments we presented. The Board held:

The intent of the firm resettlement bar is to disqualify asylum applicants who have previously found another country of refuge, not another country in which he or she faces a danger of persecution…. Given respondent’s situation with regard to [the third country], we conclude that, even assuming she otherwise would be viewed as having firmly resettled in that country, she is not barred from asylum.

Id. (emphasis in original). Thus, the Board went beyond the analysis of Matter of A-G-G- and looked to the intent of the firm resettlement bar. The intent, the BIA says, was only to bar “aliens who had already found shelter and begun new lives in other countries.” Id. (emphasis in original) (citing Rosenberg v. Yee Chien Woo, 402 U.S. 49, 56 (1971)).

It seems to me that the Board’s emphasis on the intent of the bar is significant. If you only read the firm resettlement bar (INA § 208(b)(1)(B)(2)(vi)) and Matter of A-G-G-, you could reasonably conclude–like the DHS attorney and the IJ in my case–that once a person is firmly resettled, she is forever barred from asylum. But that is not the conclusion the Board has now reached.

I am glad for the result and for my clients, but I am disappointed that the BIA chose not to publish this decision. The issue that my clients faced–where the country of resettlement is unsafe–is not uncommon. A number of my clients have faced similar situations, and I suspect that they are not unique. A published decision would have helped clarify matters and provided better guidance to our country’s Immigration Judges.

Maybe I am asking for too much. Maybe I should just be happy with what we got. Maybe I am being a big jerk for looking this gift horse in the mouth. But I can’t help but think that if the BIA would publish more decisions–especially in cases where there is no existing precedent–our Immigration Court system would be more consistent and more efficient. And so while I am thankful that we received a good decision from the Board in this particular case, I am also thinking about how much more good the Board could do if it made a concerted effort to fulfill its role as “the highest administrative body for interpreting and applying immigration laws,” and if it would publish more cases.”

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I agree, Jason. As you know from our Asylumist interviews last summer, there was a time when the BIA published more cases. It was during the era of the “Schmidt Board.”

Many of the precedents involved controversial issues of first impression under IIRIRA. There was open dialogue with some separate opinions. Sometimes, the dissent better predicted the future development of the law than the majority opinion. Most were en banc, so every Board Appellate Judge had to take a public vote. And, some of them actually granted relief to the respondent.

But those days are long gone. Today’s Board exists 1) to push cases through the system to final orders of removal on more or less of an assembly line, 2) not to rock the boat, 3) to provide OIL with ways to defend the Government’s “party line” under Chevron, and 4) to preserve the institution and the jobs of the Appellate Judges.

You’ll notice that I didn’t mention anything about due process, fairness, best practices, consistency, law development, informative dialogue, justice, or even practicality. And, Jason, let’s face it. Who would want to publish a decision favorable to a respondent with Jeff “Gonzo Apocalypto” Sessions — a guy who basically never has a kind, humane, or generous word to say about any migrant, legal or not — as your boss?

In a functioning system, an appellate court that stood for fairness, due process, and best practices could be part of the solution. But, our current U.S. Immigration Court system is dysfunctional. And, mostly, the Board is just another part of the problem. Basically, if you don’t stand up for anything or anybody, you stand for nothing.

PWS

06-28-17

NO CHAOS: Matt Zapotosky Summarizes Supreme’s Travel Ban Decision — Former DOJ Immigration Litigator Leon Fresco Says Case Likely To Resolve Itself Before Argument In Fall!

https://www.washingtonpost.com/world/national-security/what-the-supreme-courts-travel-ban-ruling-means/2017/06/26/5e86e1cc-5a7e-11e7-9fc6-c7ef4bc58d13_story.html?utm_term=.13c35f5c2033

Zapotosky writes in the WashPost:

“The Supreme Court’s decision to allow portions of President Trump’s travel ban to take effect is a win for the administration, but the impact will be far less severe than President Trump’s initial version of the measure.

That is because the high court effectively allowed Trump to ban from coming to the United States only citizens of six majority-Muslim countries “who lack any bona fide relationship with a person or entity in the United States.” It also nudged the president to complete his promised review of vetting procedures, which might mean the issue is resolved by the time the court is set to fully consider the ban in its October term.

For now, if you are not a U.S. citizen and have a relative here, have been hired by a U.S. employer or admitted to an American university, you can still probably get a visa. But if you’re applying cold as a visitor or through the diversity visa program, you probably can’t.

. . . .

The Supreme Court wrote that the government now should be able to do its work. “We fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of [the order],” the justices wrote.

The court said it would take up the travel ban fully in its October term; their ruling Monday only partially lifted lower courts’ stays on the measure. By that time, the 90-day period will have run, and Fresco said the administration will be pressed to come up with good reasons for imposing a ban.

“If there is not an answer to the question on the first day of oral arguments about why this ban is still in place, that is going to make the court much more skeptical about the government’s reasons for having this ban,” Fresco said.”

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Read the complete analysis at the link.

According to this analysis, the six Justices in the majority apparently have skillfully maneuvered the Trump Administration into a “put up or shut up” situation. They have alleviated the greatest hardships caused by the ban by allowing individuals with bona fide connections to the U.S. to continue to come. At the same time, they have pressured the Trump Administration into completing its “study” before Fall and lifting the “temporary ban,” thus largely mooting the case. As Fresco points out, if the Administration attempts to continue the ban after its scheduled expiration, they will likely have to come up with a much more convincing explanation that they have provided to date. Otherwise, the whole thing is going to look like a “pretext” for a blanket “Muslim ban,” which is what the plaintiffs have been arguing all along. Actually, sounds to me like the kind of practical solution that Chief Justice Roberts sometimes devises to avoid ugly showdowns between the three branches of Government. Interesting.

PWS

06-26-17

BREAKING: SUPREMES BODY SLAM DOJ IN NATZ CASE — MISREPRESENTATION MUST BE “MATERIAL” — Maslenjak v. United States — Total Justices Voting For DOJ Position = 0 (ZERO)!

Here’s the Court’s Syllabus (NOT part of the decision);

SUPREME COURT OF THE UNITED STATES

Syllabus

MASLENJAK v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 16–309. Argued April 26, 2017—Decided June 22, 2017

Petitioner Divna Maslenjak is an ethnic Serb who resided in Bosnia during the 1990’s, when a civil war divided the new country. In 1998, she and her family sought refugee status in the United States. In- terviewed under oath, Maslenjak explained that the family feared persecution from both sides of the national rift: Muslims would mis- treat them because of their ethnicity, and Serbs would abuse them because Maslenjak’s husband had evaded service in the Bosnian Serb Army by absconding to Serbia. Persuaded of the Maslenjaks’ plight, American officials granted them refugee status. Years later, Maslenjak applied for U. S. citizenship. In the application process, she swore that she had never given false information to a government of- ficial while applying for an immigration benefit or lied to an official to gain entry into the United States. She was naturalized as a U. S. cit- izen. But it soon emerged that her professions of honesty were false: Maslenjak had known all along that her husband spent the war years not secreted in Serbia, but serving as an officer in the Bosnian Serb Army.

The Government charged Maslenjak with knowingly “procur[ing], contrary to law, [her] naturalization,” in violation of 18 U. S. C. §1425(a). According to the Government’s theory, Maslenjak violated §1425(a) because, in the course of procuring her naturalization, she broke another law: 18 U. S. C. §1015(a), which prohibits knowingly making a false statement under oath in a naturalization proceeding. The District Court instructed the jury that, to secure a conviction un- der §1425(a), the Government need not prove that Maslenjak’s false statements were material to, or influenced, the decision to approve her citizenship application. The Sixth Circuit affirmed the convic- tion, holding that if Maslenjak made false statements violating

2 MASLENJAK v. UNITED STATES Syllabus

§1015(a) and procured naturalization, then she also violated §1425(a).

Held:
1. The text of §1425(a) makes clear that, to secure a conviction, the

Government must establish that the defendant’s illegal act played a role in her acquisition of citizenship. To “procure . . . naturalization” means to obtain it. And the adverbial phrase “contrary to law” speci- fies how a person must procure naturalization so as to run afoul of the statute: illegally. Thus, someone “procure[s], contrary to law, naturalization” when she obtains citizenship illegally. As ordinary usage demonstrates, the most natural understanding of that phrase is that the illegal act must have somehow contributed to the obtain- ing of citizenship. To get citizenship unlawfully is to get it through an unlawful means—and that is just to say that an illegality played some role in its acquisition.

The Government’s contrary view—that §1425(a) requires only a vi- olation in the course of procuring naturalization—falters on the way language naturally works. Suppose that an applicant for citizenship fills out the paperwork in a government office with a knife tucked away in her handbag. She has violated the law against possessing a weapon in a federal building, and she has done so in the course of procuring citizenship, but nobody would say she has “procure[d]” her citizenship “contrary to law.” That is because the violation of law and the acquisition of citizenship in that example are merely coincidental: The one has no causal relation to the other. Although the Govern- ment attempts to define such examples out of the statute, that effort falls short for multiple reasons. Most important, the Government’s attempted carve-out does nothing to alter the linguistic understand- ing that gives force to the examples the Government would exclude. Under ordinary rules of language usage, §1425(a) demands a causal or means-end connection between a legal violation and naturaliza- tion.

The broader statutory context reinforces the point, because the Government’s reading would create a profound mismatch between the requirements for naturalization and those for denaturalization: Some legal violations that do not justify denying citizenship would nonetheless justify revoking it later. For example, lies told out of “embarrassment, fear, or a desire for privacy” (rather than “for the purpose of obtaining [immigration] benefits”) are not generally dis- qualifying under the statutory requirement of “good moral charac- ter.” Kungys v. United States, 485 U. S. 759, 780; 8 U. S. C. §1101(f)(6). But under the Government’s reading of §1425(a), any lie told in the naturalization process would provide a basis for rescinding citizenship. The Government could thus take away on one day what

Cite as: 582 U. S. ____ (2017) 3

Syllabus

it was required to give the day before. And by so unmooring the rev- ocation of citizenship from its award, the Government opens the door to a world of disquieting consequences—which this Court would need far stronger textual support to believe Congress intended. The stat- ute Congress passed, most naturally read, strips a person of citizenship not when she committed any illegal act during the naturaliza- tion process, but only when that act played some role in her naturalization. Pp. 4–9.

2. When the underlying illegality alleged in a §1425(a) prosecution is a false statement to government officials, a jury must decide whether the false statement so altered the naturalization process as to have influenced an award of citizenship. Because the entire naturalization process is set up to provide little room for subjective pref- erences or personal whims, that inquiry is properly framed in objec- tive terms: To decide whether a defendant acquired citizenship by means of a lie, a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.

If the facts the defendant misrepresented are themselves legally disqualifying for citizenship, the jury can make quick work of that inquiry. In such a case, the defendant’s lie must have played a role in her naturalization. But that is not the only time a jury can find that a defendant’s lies had the requisite bearing on a naturalization decision, because lies can also throw investigators off a trail leading to disqualifying facts. When relying on such an investigation-based theory, the Government must make a two-part showing. Initially, the Government must prove that the misrepresented fact was suffi- ciently relevant to a naturalization criterion that it would have prompted reasonable officials, “seeking only evidence concerning citizenship qualifications,” to undertake further investigation. Kungys, 485 U. S., at 774, n. 9. If that much is true, the inquiry turns to the prospect that such an investigation would have borne disqualifying fruit. The Government need not show definitively that its investiga- tion would have unearthed a disqualifying fact. It need only estab- lish that the investigation “would predictably have disclosed” some legal disqualification. Id., at 774. If that is so, the defendant’s mis- representation contributed to the citizenship award in the way §1425(a) requires. This demanding but still practicable causal standard reflects the real-world attributes of cases premised on what an unhindered investigation would have found.

When the Government can make its two-part showing, the defend- ant may overcome it by establishing that she was qualified for citizenship (even though she misrepresented facts that suggested the opposite). Thus, whatever the Government shows with respect to a

MASLENJAK v. UNITED STATES Syllabus

thwarted investigation, qualification for citizenship is a complete defense to a prosecution under §1425(a). Pp. 10–15.

3. Measured against this analysis, the jury instructions in this case were in error. The jury needed to find more than an unlawful false statement. However, it was not asked to—and so did not—make any of the necessary determinations. The Government’s assertion that any instructional error was harmless is left for resolution on remand. Pp. 15–16.

821 F. 3d 675, vacated and remanded.

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. GORSUCH, J., filed an opinion concurring in part and concurring in the judgment, in which THOMAS, J., joined. ALITO, J., filed an opinion concurring in the judgment.

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Interestingly, Justice Gorsuch, in his first immigration-related decision, wrote a separate concurring opinion agreeing with the majority that a misrepresentation must be “material” but indicating that he would not have gone on to attempt to articulate a test for “materiality.”

Doubt that the Government’s max-enforcement effort in the Federal Courts is out of touch with reality and the law? Try this: With a supposedly conservative majority Supreme Court, the Gov has lost two recent cases this one and Esquivel-Quintana v. Sessions(http://immigrationcourtside.com/2017/05/31/led-by-justice-thomas-unanimous-supremes-reject-usgs-attempt-to-deport-mexican-man-for-consensual-sex-with-a-minor-strict-interpretation-carries-the-day/) by a total vote of 17-0. Yes, that’s right, 17-0! Not one Justice has sided with any of the nonsense that the Solicitor General has advanced on behalf of Government overreach on immigration enforcement. Justice Thomas even wrote the unanimous opinion in Esquivel (Justice Gorsuch sat that one out).

And, remember that these were positions developed and defended by the DOJ under the Obama Administration.

PWS

06-22-17

Here’s My Keynote Address From Today’s FBA Immigration Law Conference In Denver, CO!

LIFE AT EOIR – PAST, PRESENT, AND FUTURE

Paul Wickham Schmidt

Retired U.S. Immigration Judge

Keynote Address

2017 Immigration Law Conference

Denver, CO

May 12, 2017

INTRODUCTION

Good afternoon. Thank you so much for inviting me. It’s an honor to appear before you.

Funny thing happened to me on the way to this conference. When I arrived at the airport yesterday afternoon, my good friend Judge Lory Rosenberg rushed up to me at baggage claim and said “Oh, I see we’re having you for lunch!” I said “What?” She said “You’re our keynote speaker at lunch tomorrow.” I scoffed at the idea, saying I might be on the after lunch panel with her, but that was it. However, when I actually took the time to look at the program I saw that certainly not for the first time, Lory was right. Unbeknownst to me I was, in fact, listed as the keynote speaker.

I’ve composed this speech on my I-pad, which I’m using as a teleprompter. As you know, those of us who worked at EOIR aren’t used to this new-fangled technology. So, please bear with me.

As we get started, I’d like all of you to join me in recognizing my friend and former colleague Judge Larry Burman for his tireless efforts to make the ILS the best section in the FBA. In the later years, I tried very hard to avoid being at court at nights, weekends, and holidays. But, occasionally I had to go pick up my cellphone or something else I had inadvertently left in my office. And, who should be there but Larry. And he was always working on a FBA project, the Green Card, Conference Planning, recruiting new members, etc. So, please join me in a round of applause for Judge Burman for all he has done for promoting productive dialogue and improving the practice of immigration law.

Now, this is when I used to give my comprehensive disclaimer providing “plausible deniability” for everyone in the Immigration Court System if I happened to say anything inconvenient or controversial. But, now that I’m retired, we can skip that part.

My speech is entitled: “Life At EOIR, Past Present, and Future.” I will start by introducing myself to you and telling you a bit about how my life and career have been intertwined with EOIR. Then I will briefly address five things: the court system’s vision, the judge’s role, my judicial philosophy, what needs to be done to reclaim the due process vision of the Immigration Courts, and how you can get involved.

CAREER SUMMARY

I graduated in 1970 from Lawrence University a small liberal arts college in Appleton, Wisconsin, where I majored in history. My broad liberal arts education and the intensive writing and intellectual dialogue involved were the best possible preparation for all that followed.

I then attended the University of Wisconsin School of Law in Madison, Wisconsin, graduating in 1973. Go Badgers!

I began my legal career in 1973 as an Attorney Advisor at the Board of Immigration Appeals (“BIA”) at the U.S. Department of Justice (“DOJ”) under the Attorney General’s Honors Program. Admittedly, however, the BIA’s Executive Assistant culled my resume from the “Honors Program reject pile.” One of my staff colleagues at that time, now retired U.S Immigration Judge Joan Churchill, is right here in the audience.

At that time, before the creation of the Executive Office for Immigration Review – “EOIR” for you Winnie the Pooh fans — the Board had only five members and nine staff attorneys, as compared to today’s cast of thousands. Among other things, I worked on the famous, or infamous, John Lennon case, which eventually was reversed by the Second Circuit in an opinion by the late Chief Judge Irving Kaufman.^[1] As an interesting historical footnote, that case was argued in the Circuit by then Special Assistant U.S. Attorney Mary Maguire Dunne, who went on to become a distinguished Member of the BIA and one of my Vice Chairs during my tenure as Chairman.

I also shared an office with my good friend, the late Lauri Steven Filppu, who later became a Deputy Director of the Office of Immigration Litigation (“OIL”) in the DOJ’s Civil Division and subsequently served with me on the BIA. The Chairman of the BIA at that time was the legendary “immigration guru” Maurice A. “Maury” Roberts. Chairman Roberts took Lauri and me under this wing and shared with us his love of immigration law, his focus on sound scholarship, his affinity for clear, effective legal writing, and his humane sense of fairness and justice for the individuals coming before the BIA.

In 1976, I moved to the Office of General Counsel at the “Legacy” Immigration and Naturalization Service (“INS”). There, I worked for another legendary figure in immigration law, then General Counsel Sam Bernsen. Sam was a naturalized citizen who started his career as a 17-year-old messenger at Ellis Island and worked his way to the top of the Civil Service ranks. Perhaps not incidentally, he was also a good friend of Chairman Roberts.

At that time, the Office of General Counsel was very small, with a staff of only three attorneys in addition to the General Counsel and his Deputy, another mentor and immigration guru, Ralph Farb. At one time, all three of us on the staff sat in the same office! In 1978, Ralph was appointed to the BIA, and I succeeded him as Deputy General Counsel. I also served as the Acting General Counsel for several very lengthy periods in both the Carter and Reagan Administrations.

Not long after I arrived, the General Counsel position became political. The incoming Administration encouraged Sam to retire, and he went on to become a name and Managing Partner of the Washington, D.C. office of the powerhouse immigration boutique Fragomen, Del Rey, and Bernsen. He was replaced by my good friend and colleague David Crosland, now an Immigration Judge in Baltimore, who selected me as his Deputy. Dave was also the Acting Commissioner of Immigration during the second half of the Carter Administration, one of the periods when I was the Acting General Counsel.

The third General Counsel that I served under was one of my most “unforgettable characters:” the late, great Maurice C. “Mike” Inman, Jr. He was known, not always affectionately, as “Iron Mike.” His management style was something of a cross between the famous coach of the Green Bay Packers, Vince Lombardi, and the fictional Mafia chieftain, Don Corleone. As my one of my colleagues said of “Iron Mike:” “He consistently and unreasonably demanded that we do the impossible, and most of the time we succeeded.” Although we were totally different personalities, Mike and I made a good team, and we accomplished amazing things. It was more or less a “good cop, bad cop” routine, and I’ll let you guess who played which role. You can check the “Inman era” out with retired Immigration Judge William P. Joyce, who is sitting in the audience and shared the experience with me.

Among other things, I worked on the Iranian Hostage Crisis, the Cuban Boatlift, the Refugee Act of 1980, the Immigration Reform and Control Act of 1986 (“IRCA”), the creation of the Office of Immigration Litigation (“OIL”), and establishing what has evolved into the modern Chief Counsel system at Department of Homeland Security (“DHS”).

I also worked on the creation of EOIR, which combined the Immigration Courts, which had previously been part of the INS, with the BIA to improve judicial independence. Interestingly, and perhaps ironically, the leadership and impetus for getting the Immigration Judges into a separate organization came from Mike and the late Al Nelson, who was then the Commissioner of Immigration. Prosecutors by position and litigators by trade, they saw the inherent conflicts and overall undesirability, from a due process and credibility standpoint, of having immigration enforcement and impartial court adjudication in the same division. I find it troubling that officials at today’s DOJ aren’t able to understand and act appropriately on the glaring conflict of interest currently staring them in their collective faces.

By the time I left in 1987, the General Counsel’s Office, largely as a result of the enactment of IRCA and new employer sanctions provisions, had dozens of attorneys, organized into divisions, and approximately 600 attorneys in the field program, the vast majority of whom had been hired during my tenure.

In 1987, I left INS and joined Jones Day’s DC Office, a job that I got largely because of my wife Cathy and her “old girl network.” I eventually became a partner specializing in business immigration, multinational executives, and religious workers. Among my major legislative projects on behalf of our clients were the special religious worker provisions added to the law by the Immigration Act of 1990 and the “Special Immigrant Juvenile” provisions of the INA with which some of you might be familiar.

Following my time at Jones Day, I succeeded my former boss and mentor Sam Bernsen as the Managing Partner of the DC Office of Fragomen, Del Rey & Bernsen, the leading national immigration boutique, where I continued to concentrate on business immigration. You will note that immigration is a small community; you need to be nice to everyone because you keep running into the same folks over and over again in your career. While at Fragomen, I also assisted the American Immigration Lawyers Association (“AILA”) on a number of projects and was an adviser to the Lawyers’ Committee, now known as Human Rights First.

In 1995, then Attorney General Janet Reno appointed me Chairman of the BIA. Not surprisingly, Janet Reno, who recently died, was my favorite among all of the Attorneys General I worked under. I felt that she supported me personally, and she supported the concept of an independent judiciary, even though she didn’t always agree with our decisions and vice versa.

She was the only Attorney General who consistently came to our Investitures and Immigration Judge Conferences in person and mixed and mingled with the group. She was also kind to our clerical staff and invited them downtown to meet personally with her. She had a saying “equal justice for all” that she worked into almost all of her speeches, and which I found quite inspirational. She was also hands down the funniest former Attorney General to appear on “Saturday Night Live,” doing her famous “Janet Reno Dance Party” routine with Will Farrell immediately following the end of her lengthy tenure at the DOJ.

Among other things, I oversaw an expansion of the Board from the historical five members to more than 20 members, a more open selection system that gave some outside experts a chance to serve as appellate judges on the Board, the creation of a supervisory structure for the expanding staff, the establishment of a unified Clerk’s Office to process appeals, implementation of a true judicial format for published opinions, institution of bar coding for the tens of thousands of files, the establishment of a pro bono program to assist unrepresented respondents on appeal, the founding of the Virtual Law Library, electronic en banc voting and e-distribution of decisions to Immigration Judges, and the publication of the first BIA Practice Manual, which actually won a “Plain Language Award” from then Vice President Gore.

I also wrote the majority opinion in my favorite case, Matter of Kasinga, establishing for the first time that the practice of female genital mutilation (“FGM”) is “persecution” for asylum purposes.^[2] As another historical footnote, the “losing” attorney in that case was none other than my good friend, then INS General Counsel David A. Martin, a famous immigration professor at the University of Virginia Law who personally argued before the Board.

In reality, however, by nominally “losing” the case, David actually won the war for both of us, and more important, for the cause of suffering women throughout the world. We really were on the same side in Kasinga. Without David’s help, who knows if I would have been able to get an almost-united Board to make such a strong statement on protection of vulnerable women.

During my tenure as Chairman, then Chief Immigration Judge (now BIA Member) Michael J. Creppy and I were founding members of the International Association of Refugee Law Judges (“IARLJ”). This organization, today headquartered in The Hague, promotes open dialogue and exchange of information among judges from many different countries adjudicating claims under the Geneva Convention on Refugees. Since my retirement, I have rejoined the IARLJ as a Vice President for the Americas.

In 2001, at the beginning of the Bush Administration, I stepped down as BIA Chairman, but remained as a Board Member until April 2003. At that time, then Attorney General John Ashcroft, who was not a fan of my opinions, invited me to vacate the Board and finish my career at the Arlington Immigration Court, where I remained until my retirement on June 30 of last year. So, I’m one of the few ever to become an Immigration Judge without applying for the job. Or, maybe my opinions, particularly the dissents, were my application and I just didn’t recognize it at the time. But, it turned out to be a great fit, and I truly enjoyed my time at the Arlington Court.

I have also taught Immigration Law at George Mason School of Law in 1989 and “Refugee Law and Policy” at Georgetown Law from 2012 through 2014. I’ve just agreed to resume my Adjunct position with Georgetown Law for a “compressed summer course” in “Immigration Law & Policy.”

Please keep in mind that if everyone agreed with me, my career wouldn’t have turned out the way it did. On the other hand, if nobody agreed with me, my career wouldn’t have turned out the way it did. In bureaucratic terms, I was a “survivor.” I have also, at some point in my career, probably been on both sides of many of the important issues in U.S. immigration law.

One of the challenges that lawyers will face in Immigration Court is that different judges have distinct styles, philosophies, and preferences. I always felt that although we might differ in personality and approach, at least in Arlington we all shared a commitment to achieving fairness and justice.

As a sitting judge, I encouraged meticulous preparation and advance consultation with the DHS Assistant Chief Counsel to stipulate or otherwise narrow issues. In Arlington, for example, even with a new high of 10 Immigration Judges, the average docket is still 3,000 cases per judge. There currently are more than 30,000 pending cases at the Arlington Court. Because of this overwhelming workload, efficiency and focusing on the disputed issues in court are particularly critical.

THE DUE PROCESS VISION

Now, let’s move on to the other topics: First, vision. The “EOIR Vision” is: “Through teamwork and innovation, be the world’s best administrative tribunals, guaranteeing fairness and due process for all.” In one of my prior incarnations, I was part of the group that developed that vision statement. Perhaps not surprisingly given the timing, that vision echoed the late Janet Reno’s “equal justice for all” theme.

Sadly, the Immigration Court System is moving further away from that due process vision. Instead, years of neglect, misunderstanding, mismanagement, and misguided priorities imposed by the U.S. Department of Justice have created judicial chaos with an expanding backlog now approaching an astounding 600,000 cases and no clear plan for resolving them in the foreseeable future. There are now more pending cases in Immigration Court than in the entire U.S. District Court System, including both Civil and Criminal dockets, with fewer than half as many U.S. Immigration Judges currently on board as U.S. District Judges.

And, the new Administration promises to add hundreds of thousands, if not millions, of new cases to the Immigration Court docket, again without any transparent plan for completing the half million already pending cases consistent with due process and fairness. In fact, notably, and most troubling, concern for fairness and due process in the immigration hearing process has not appeared anywhere in the Administration’s many pronouncements on immigration.

Nobody has been hit harder by this preventable disaster than asylum seekers, particularly scared women and children fleeing for their lives from the Northern Triangle of Central America. In Immigration Court, notwithstanding the life or death issues at stake, unlike criminal court there is no right to an appointed lawyer. Individuals who can’t afford a lawyer must rely on practicing lawyers who donate their time or on nonprofit community organizations to find free or low cost legal representation. Although the Government stubbornly resists the notion that all asylum seekers should be represented, studies show that represented asylum seekers are at least five times more likely to succeed than those who must represent themselves. For recently arrived women with children, the success differential is an astounding fourteen times!^[3]

You might have read about the unfortunate statement of an Assistant Chief Judge for Training who claimed that he could teach immigration law to unrepresented toddlers appearing in Immigration Court. Issues concerning representation of so-called “vulnerable populations” continue to challenge our Court System. Even with Clinics and Non-Governmental Organizations pitching in, there simply are not enough free or low cost lawyers available to handle the overwhelming need. In fact, soon to be former EOIR Director Juan Osuna once declared in an officially-sanctioned TV interview that the current system is “broken.”^[4]

Notwithstanding the admitted problems, I still believe in the EOIR vision. Later in this speech I’m going to share with you some of my ideas for reclaiming this noble due process vision.

THE ROLE OF THE IMMIGRATION JUDGE

Changing subjects, to the role of the Immigration Judge: What’s it like to be an Immigration Judge? As an Immigration Judge, I was an administrative judge. I was not part of the Judicial Branch established under Article III of the Constitution. The Attorney General, part of the Executive Branch, appointed me, and my authority was subject to her regulations.

We should all be concerned that the U.S. Immigration Court system is now totally under the control of Attorney General Jeff Sessions, who has consistently taken a negative view of immigrants, both legal and undocumented, and has failed to recognize the many essential, positive contributions that immigrants make to our country.

Perhaps ironically, the late Judge Terence T. Evans of the Seventh Circuit Court of Appeals offered one of the best descriptions of what it’s like to be an Immigration Judge. Judge Evans was not one of us, but saw plenty of our work during his lifetime. Judge Evans said:

“Because 100 percent of asylum petitioners want to stay in this country, but less than 100 percent are entitled to asylum, an immigration judge must be alert to the fact that some petitioners will embellish their claims to increase their chances of success. On the other hand, an immigration judge must be sensitive to the suffering and fears of petitioners who are genuinely entitled to asylum in this country. A healthy balance of sympathy and skepticism is a job requirement for a good immigration judge. Attaining that balance is what makes the job of an immigration judge, in my view, excruciatingly difficult.”^[5]

My Arlington Immigration Court colleague Judge Thomas G. Snow also gives a very moving and accurate glimpse of an Immigration Judge’s life in a recent article from USA Today:

” Immigration judges make these decisions alone. Many are made following distraught or shame-filled testimony covering almost unimaginable acts of inhumanity. And we make them several times a day, day after day, year after year.

We take every decision we make very seriously. We do our best to be fair to every person who comes before us. We judge each case on its own merits, no matter how many times we’ve seen similar fact patterns before.

We are not policymakers. We are not legislators. We are judges. Although we are employees of the U.S. Department of Justice who act under the delegated authority of the attorney general, no one tells us how to decide a case. I have been an immigration judge for more than 11 years, and nobody has ever tried to influence a single one of my thousands of decisions

And finally, because we are judges, we do our best to follow the law and apply it impartially to the people who appear before us. I know I do so, even when it breaks my heart.^[6]

My good friend and colleague, Judge Dana Leigh Marks of the San Francisco Immigration Court, who is the President of the National Association of Immigration Judges, offers a somewhat pithier description: “[I]mmigration judges often feel asylum hearings are ‘like holding death penalty cases in traffic court.’”^[7]

Another historical footnote: as a young lawyer, then known as Dana Marks Keener, Judge Marks successfully argued the landmark Supreme Court case INS v. Cardoza Fonseca, establishing the generous “well-founded fear” standard for asylum, while I helped the Solicitor General’s office develop the unsuccessful opposing arguments for INS.^[8] Therefore, I sometimes refer to Judge Marks as one of the “founding mothers” of U.S. asylum law.

From my perspective, as an Immigration Judge I was half scholar, half performing artist. An Immigration Judge is always on public display, particularly in this “age of the Internet.” His or her words, actions, attitudes, and even body language, send powerful messages, positive or negative, about our court system and our national values. Perhaps not surprisingly, the majority of those who fail at the job do so because they do not recognize and master the “performing artist” aspect, rather than from a lack of pertinent legal knowledge.

One of the keys to the Immigration Judge’s job is issuing scholarly, practical, well-written opinions in the most difficult cases. That ties directly into the job of the Immigration Court’s amazing Judicial Law Clerks (“JLCs”) assisted by all-star legal interns from local law schools. The JLC’s job is, of course, “to make the judge look smart,” no matter how difficult or challenging that might be in a particular case.

MY JUDICIAL PHILOSOPHY

Next, I’ll say a few words about my philosophy. In all aspects of my career, I have found five essential elements for success: fairness, scholarship, timeliness, respect, and teamwork.

Obviously, fairness to the parties is an essential element of judging. Scholarship in the law is what allows us to fairly apply the rules in particular cases. However, sometimes attempts to be fair or scholarly can be ineffective unless timely. In some cases, untimeliness can amount to unfairness no matter how smart or knowledgeable you are.

Respect for the parties, the public, colleagues, and appellate courts is absolutely necessary for our system to function. Finally, I view the whole judging process as a team exercise that involves a coordinated and cooperative effort among judges, respondents, counsel, interpreters, court clerks, security officers, administrators, law clerks and interns working behind the scenes, to get the job done correctly. Notwithstanding different roles, we all share a common interest in seeing that our justice system works.

Are the five elements that I just mentioned limited to Immigration Court? They are not only essential legal skills, they are also necessary life skills, whether you are running a courtroom, a law firm, a family, a PTA meeting, a book club, or a soccer team. As you might imagine, I am a huge fan of clinical experience as an essential part of the law school curriculum. Not only do clinical programs make important actual contributions to our justice system – due process in action – but they teach exactly the type of intellectual and practical values and skills that I have just described.

RECLAIMING THE VISION

Our Immigration Courts are going through an existential crisis that threatens the very foundations of our American Justice System. Earlier, I told you about my dismay that the noble due process vision of our Immigration Courts has been derailed. What can be done to get it back on track?

First, and foremost, the Immigration Courts must return to the focus on due process as the one and only mission. The improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers, which are highly ineffective in any event, must end. That’s unlikely to happen under the DOJ – as proved by over three decades of history, particularly recent history. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the ABA and the FBA, would be best.

Clearly, the due process focus was lost during the last Administration when officials outside EOIR forced ill-advised “prioritization” and attempts to “expedite” the cases of frightened women and children from the Northern Triangle who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases was not only unfair to all, but has created what I call “aimless docket reshuffling” — “ADR” — that has thrown the Immigration Court system into chaos and dramatically increased the backlogs.

Although those misguided Obama Administration priorities have been rescinded, the reprieve is only fleeting. The Trump Administration has announced plans to greatly expand the “priority” targets for removal to include even those who were merely accused of committing any crime. The Administration also plans a new and greatly expanded “immigration detention empire,” likely to be situated in remote locations near the Southern Border, relying largely on discredited private “for profit” prisons. The Administration also wants to make it more difficult for individuals to get full Immigration Court hearings on asylum claims and to expand the use of so-called “expedited removal,” thereby seeking to completely avoid the Immigration Court process.

Evidently, the idea, similar to that of the Obama Administration, is to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we don’t want you” message to asylum seekers.

Second, there must be structural changes so that the Immigration Courts are organized and run like a real court system, not a highly bureaucratic agency. This means that sitting Immigration Judges, like in all other court systems, must control their dockets. The practice of having administrators in Falls Church and bureaucrats in Washington, D.C., none of whom are sitting judges responsible for daily court hearings, manipulate and rearrange local dockets in a vain attempt to achieve policy goals unrelated to fairness and due process for individuals coming before the Immigration Courts must end.

If there are to be nationwide policies and practices, they should be developed by an “Immigration Judicial Conference,” patterned along the lines of the Federal Judicial Conference. That would be composed of sitting Immigration Judges representing a cross-section of the country, several Appellate Immigration Judges from the BIA, and probably some U.S. Circuit Judges, since the Circuits are one of the primary “consumers” of the court’s “product.”

Third, there must be a new administrative organization to serve the courts, much like the Administrative Office of the U.S. Courts. This office would naturally be subordinate to the Immigration Judicial Conference. Currently, the glacial hiring process, inadequate courtroom space planning and acquisition, and unreliable, often-outdated technology are simply not up to the needs of a rapidly expanding court system.

In particular, the judicial hiring process over the past 16 years has failed to produce the necessary balance because judicial selectees from private sector backgrounds – particularly those with expertise in asylum and refugee law – have been so few and far between. Indeed, during the last Administration nearly 90% of the judicial appointments were from Government backgrounds. And, there is no reason to believe that pattern will change under the current Administration. In fact, only one of the seven most recent appointments by Attorney General’s Sessions came from a private sector background.

Fourth, I would repeal all of the so-called “Ashcroft reforms” at the BIA and put the BIA back on track to being a real appellate court. A properly comprised and well-functioning BIA should transparently debate and decide important, potentially controversial, issues, publishing dissenting opinions when appropriate. All BIA Appellate Judges should be required to vote and take a public position on all important precedent decisions. The BIA must also “rein in” those Immigration Courts with asylum grant rates so incredibly low as to make it clear that the generous dictates of the Supreme Court in Cardoza-Fonseca^[9] and the BIA itself in Mogharrabi^[10] are not being followed.

Nearly a decade has passed since Professors Andy Schoenholtz, Phil Shrag, and Jaya Ramji-Nogales published their seminal work Refugee Roulette, documenting the large disparities among Immigration Judges in asylum grant rates.^[11] While there has been some improvement, the BIA, the only body that can effectively establish and enforce due process within the Immigration Court system, has not adequately addressed this situation.

For example, let’s take a brief “asylum magical mystery tour” down the East Coast.^[12] In New York, 84% of the asylum applications are granted. Cross the Hudson River to Newark and that rate sinks to 48%, still respectable in light of the 47% national average but inexplicably 36% lower than New York. Move over to the Elizabeth Detention Center Court, where you might expect a further reduction, and the grant rate rises again to 59%. Get to Baltimore, and the grant rate drops to 43%. But, move down the BW Parkway a few miles to Arlington, still within the Fourth Circuit like Baltimore, and it rises again to 63%. Then, cross the border into North Carolina, still in the Fourth Circuit, and it drops remarkably to 13%. But, things could be worse. Travel a little further south to Atlanta and the grant rate bottoms out at an astounding 2%.

In other words, by lunchtime some days the Immigration Judges sitting in New York granted more than the five asylum cases granted in Atlanta during the entire Fiscal Year 2015! An 84% to 2% differential in fewer than 900 miles! Three other major non-detained Immigration Courts, Dallas, Houston, and Las Vegas, have asylum grants rates at or below 10%.

Indeed a recent 2017 study of the Atlanta Immigration Court by Emory Law and the Southern Poverty Law Center found:

[S]ome of the Immigration Judges do not respect rule of law principles and maintain practices that undermine the fair administration of justice. During the course of our observations, we witnessed the following [issue, among others]. Immigration Judges made prejudicial statements and expressed significant disinterest or even hostility towards respondents in their courts. In at least one instance, an Immigration Judge actively refused to listen to an attorney’s legal arguments. In another instance, an Immigration Judge failed to apply the correct standard of law in an asylum case. ^[13]

This is hardly “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all!” These unusually low asylum grant rates are impossible to justify in light of the generous standard for well-founded fear established by the Supreme Court in Cardoza-Fonseca and the BIA in Mogharrabi, and the regulatory presumption of future fear arising out of past persecution that applies in many asylum cases.^[14] Yet, the BIA has only recently and fairly timidly addressed the manifest lack of respect for asylum seekers and failure to guarantee fairness and due process for such vulnerable individuals in some cases arising in Atlanta and other courts with unrealistically low grant rates.^[15]

Over the past 16 years, the BIA’s inability or unwillingness to aggressively stand up for the due process rights of asylum seekers and to enforce the fair and generous standards required by American law have robbed our Immigration Court System of credibility and public support, as well as ruined the lives of many who were denied protection that should have been granted. We need a BIA which functions like a Federal Appellate Court and whose overriding mission is to ensure that the due process vision of the Immigration Courts becomes a reality rather than an unfulfilled promise.

Fifth, and finally, the Immigration Courts need e-filing NOW! Without it, the courts are condemned to “files in the aisles,” misplaced filings, lost exhibits, and exorbitant courier charges. Also, because of the absence of e-filing, the public receives a level of service disturbingly below that of any other major court system. That gives the Immigration Courts an “amateur night” aura totally inconsistent with the dignity of the process, the critical importance of the mission, and the expertise, hard work, and dedication of the judges and court staff who make up our court.

GETTING INVOLVED

Keep these thoughts in mind. Sadly, based on actions to date, I have little hope that Attorney General Sessions will support due process reforms or an independent U.S. Immigration Court, although it would be in his best interests as well as those of our country if he did. However, eventually our opportunity will come. When it does, those of us who believe in the primary importance of constitutional due process must be ready with concrete reforms.

So, do we abandon all hope? No, of course not! Because there are hundreds of newer lawyers out there who are former Arlington JLCs, interns, my former student, and those who have practiced before the Arlington Immigration Court.

They form what I call the “New Due Process Army!” And, while my time on the battlefield is winding down, they are just beginning the fight! They will keep at it for years, decades, or generations — whatever it takes to force the U.S. immigration judicial system to live up to its promise of “guaranteeing fairness and due process for all!”

What can you do to get involved now? The overriding due process need is for competent representation of individuals claiming asylum and/or facing removal from the United States. Currently, there are not nearly enough pro bono lawyers to insure that everyone in Immigration Court gets represented.

And the situation is getting worse. With the Administration’s expansion of so-called “expedited removal,” lawyers are needed at earlier points in the process to insure that those with defenses or plausible claims for relief even get into the Immigration Court process, rather than being summarily removed with little, if any, recourse.

Additionally, given the pressure that the Administration is likely to exert through the Department of Justice to “move” cases quickly through the Immigration Court system with little regard for due process and fundamental fairness, resort to the Article III Courts to require fair proceedings and an unbiased application of the laws becomes even more essential. Litigation in the U.S. District and Appellate Courts has turned out to be effective in forcing systemic change. However, virtually no unrepresented individual is going to be capable of getting to the Court of Appeals, let alone prevailing on a claim.

I have been working with groups looking for ways to expand the “accredited representative” program, which allows properly trained and certified individuals who are not lawyers to handle cases before the DHS and the Immigration Courts while working for certain nonprofit community organizations, on either a staff or volunteer basis. Notwithstanding some recently publicized problems with policing the system, which I wrote about on my blog immigrationrcourtside.com, this is a critically important program for expanding representation in Immigration Courts. The “accredited representative” program is also an outstanding opportunity for retired individuals, like professors, who are not lawyers to qualify to provide pro bono representation in Immigration Court to needy migrants thorough properly recognized religious and community organizations.

Even if you are not practicing or do not intend to practice immigration law, there are many outstanding opportunities to contribute by taking pro bono cases. Indeed, in my experience in Arlington, “big law” firms were some of the major contributors to highly effective pro bono representation. It was also great “hands on” experience for those seeking to hone their litigation skills.

Those of you with language and teaching skills can help out in English Language Learning programs for migrants. I have observed first hand that the better that individuals understand the language and culture of the US, the more successful they are in navigating our Immigration Court system and both assisting, and when necessary, challenging their representatives to perform at the highest levels. In other words, they are in a better position to be “informed consumers” of legal services.

Another critical area for focus is funding of nonprofit community-based organizations and religious groups that assist migrants for little or no charge. Never has the need for such services been greater.

But, many of these organizations receive at least some government funding for outreach efforts. We have already seen how the President has directed the DHS to “defund” outreach efforts and use the money instead for a program to assist victims of crimes committed by undocumented individuals.

Undoubtedly, with the huge emphases on military expansion and immigration enforcement, to the exclusion of other important programs, virtually all forms of funding for outreach efforts to migrants are likely to disappear in the very near future. Those who care about helping others will have to make up the deficit. So, at giving time, remember your community nonprofit organizations that are assisting foreign nationals.

Finally, as an informed voter and participant in our political process, you can advance the cause of Immigration Court reform and due process. For the last 16 years politicians of both parties have largely stood by and watched the unfolding due process disaster in the U.S. Immigration Courts without doing anything about it, and in some cases actually making it worse.

The notion that Immigration Court reform must be part of so-called “comprehensive immigration reform” is simply wrong. The Immigration Courts can and must be fixed sooner rather than later, regardless of what happens with overall immigration reform. It’s time to let your Senators and Representatives know that we need due process reforms in the Immigration Courts as one of our highest national priorities.

Folks, the U.S Immigration Court system is on the verge of collapse. And, there is every reason to believe that the misguided “enforce and detain to the max” policies being pursued by this Administration will drive the Immigration Courts over the edge. When that happens, a large chunk of the entire American justice system and the due process guarantees that make American great and different from most of the rest of the world will go down with it.

CONCLUSION

In conclusion, I have introduced you to one of America’s largest and most important, yet least understood and appreciated, court systems: the United States Immigration Court. I have shared with you the Court’s noble due process vision and my view that it is not currently being fulfilled. I have also shared with you my ideas for effective court reform that would achieve the due process vision and how you can become involved in improving the process. Now is the time to take a stand for fundamental fairness’! Join the New Due Process Army! Due process forever!

Thanks again for inviting me and for listening. Have a great conference!

(05/12/17)

^[1] Matter of Lennon, 15 I&N Dec. 9 (BIA 1974), rev’d Lennon v. INS, 527 F.2d 187 (2d Cir. 1975).

^[2] Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).

^[3] TRAC Immigration, “Representation is Key in Immigration Proceedings Involving Women with Children,” Feb. 18, 2015, available online at http://trac.syr.edu/immigration/reports/377/.

^[4] “Immigration Director Calls for Overhaul of Broken System,” NBC Bay Area News, May 27, 2015, available online.

^[5] Guchshenkov v. Ashcroft, 366 F.3d 554 (7th Cir. 2004) (Evans, J., concurring).
^[6] Hon. Thomas G. Snow, “The gut-wrenching life of an immigration judge,” USA Today, Dec. 12, 2106, available online at http://www.usatoday.com/story/opinion/2016/12/12/immigration-judge-gut-wrenching-decisions-column/95308118/

^[7] Julia Preston, “Lawyers Back Creating New Immigration Courts,” NY Times, Feb. 6, 2010.

^[8] INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

^[9] INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

^[10] Matter of Mogharrabi, 19 I&N Dec. 4379(BIA 1987).

^[11] Jaya Ramji-Nogales, Andrew I. Schoenholtz, and Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295 (2007);

^[12] All statistics are from the EOIR FY 2015 Statistics Yearbook, available online at https://www.justice.gov/eoir/page/file/fysb15/download,

^[13] See Emory Law/SPLC Observation Study Rips Due Process Violations At Atlanta Immigration Court — Why Is The BIA “Asleep At The Switch” In Enforcing Due Process? What Happened To The EOIR’s “Due Process Vision?” in immigrationcourtside.com, available online at http://immigrationcourtside.com/2017/03/02/emory-lawsplc-observation-study-rips-due-process-violations-at-atlanta-immigration-court-why-is-the-bia-asleep-at-the-switch-in-enforcing-due-process-what-happened-to-the-eoirs-due-proces/

^[14] See 8 C.F.R. § 1208.13(b)(1).

^[15] See, e.g., Matter of Y-S-L-C-, 26 I&N Dec. 688 (BIA 2015) (denial of due process where IJ tried to bar the testimony of minor respondent by disqualifying him as an expert witness under the Federal Rules of Evidence). While the BIA finally stepped in with this precedent, the behavior of this Judge shows a system where some Judges have abandoned any discernable concept of “guaranteeing fairness and due process.” The BIA’s “permissive” attitude toward Judges who consistently deny nearly all asylum applications has allowed this to happen. Indeed the Washington Post recently carried a poignant story of a young immigration lawyer who was driven out of the practice by the negative attitudes and treatment by the Immigration Judges at the Atlanta Immigration Court. Harlan, Chico, “In an Immigration Court that nearly always says no, a lawyer’s spirit is broken,” Washington Post, Oct. 11, 2016, available online at https://www.washingtonpost.com/business/economy/in-an-immigration-court-that-nearly-always-says-no-a-lawyers-spirit-is-broken/2016/10/11/05f43a8e-8eee-11e6-a6a3-d50061aa9fae_story.html

How does this live up to the EOIR Vision of “through teamwork and innovation being the world’s best administrative tribunals guaranteeing fairness and due process for all?” Does this represent the best that American justice has to offer?

New From 9th Circuit: Ayala v. Sessions — Reaffirming “economic extortion on the basis of a protected characteristic can constitute persecution!” — Judicial Review of Credible Fear/Reinstatement — “Extortion Plus” Reaffirmed!

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/01/13-72250.pdf

“The IJ abused his discretion in concluding that there was no legal error in his previous opinion affirming the negative reasonable fear determination.5 Contrary to the IJ’s holding, our precedents make clear that economic extortion on the basis of a protected characteristic can constitute persecution.

5 We review the legal error de novo and conclude that the IJ abused his discretion in reaching the result he did. See Popa v. Holder, 571 F.3d 890, 894 (9th Cir. 2009) (“An IJ abuses his discretion when he acts arbitrarily, irrationally, or contrary to law.”) (citations and quotation marks omitted); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990) (“A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.”).

AYALA V. SESSIONS 17

Borja, 175 F.3d at 736; Barajas-Romero, 846 F.3d at 357 & n.5 (“A person seeking withholding of removal must prove not only that his life or freedom will be threatened in his home country, but also that the threat is ‘because of’ one of the five listed reasons:” race, religion, nationality, membership in a particular social group, or political opinion) (citing 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)). In Borja, for example, the petitioner suffered past persecution on account of her political opinion when she was extorted partly for economic reasons and partly on the basis of her political statements. 175 F.3d at 736. We described this type of persecution as “extortion plus”—that is, extortion, with the threat of violence, on the basis of a protected characteristic. Id.

Here, Ayala testified that she suffered this type of persecution by stating that she faced extortion, and threats of violence, not only for economic reasons, but also because of her family ties. Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015) (“[T]he family remains the quintessential particular social group.”). Whatever the merits of her claim, it was legal error for the IJ to hold that extortion could not constitute persecution for the purposes of withholding of removal: where the petitioner’s membership in a particular social group (in this case, a family) is at least “a reason” for the extortion, it is sufficient to meet the nexus requirement for withholding of removal. See Barajas-Romero, 846 F.3d at 360 (Post REAL-ID withholding claims are not governed by the “one central reason” test that applies to asylum claims, but instead require only that a protected ground was “a reason” for persecution, which “is a less demanding standard.”).

18 AYALA V. SESSIONS

Therefore, we grant Ayala’s petition for review, and remand for the IJ to address whether Ayala has established a reasonable fear based on her extortion-plus claim of persecution.

CONCLUSION

We have jurisdiction to review the IJ’s negative reasonable fear determination relating to the reinstatement of Ayala’s expedited removal order. The BIA’s dismissal of Ayala’s appeal for lack of jurisdiction was the final order of removal; therefore, Ayala’s petition for review is timely because it was filed less than 30 days after that order.

We hold that the IJ abused his discretion in concluding that extortion could not constitute past persecution, and in failing to consider the question of Ayala’s family ties. Therefore, we GRANT Ayala’s petition for review and REMAND for proceedings consistent with this opinion.”

PANEL:

Stephen Reinhardt and Kim McLane Wardlaw, Circuit Judges, and Edward R. Korman,* District Judge. (*The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation.)

OPINION BY: Judge Reinhardt

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

In my experience, U.S. Immigration Judges, the BIA, and some Courts of Appeals make the mistake highlighted by the 9th Circuit in far too many instances by summarily disregarding credible claims of persecution based on extortion. That’s why the Trump Administration’s effort to “heighten” the standards for “credible fear” and “reasonable fear” of persecution will almost certainly compromise due process and fairness.

PWS

05-01-17

FEAR WORKING? — Trump Showing Doubters That “Tough Talk & Actions” Can Alter Migration Patterns!

https://www.washingtonpost.com/politics/amid-immigration-setbacks-one-trump-strategy-seems-to-be-working-fear/2017/04/30/62af1620-2b4e-11e7-a616-d7c8a68c1a66_story.html?hpid=hp_rhp-top-table-main_trumpimmigration-710pm-1%3Ahomepage%2Fstory&utm_term=.f8b003fef8f7

David Nkamura writes in the Washington Post:

“In many ways, President Trump’s attempts to implement his hard-line immigration policies have not gone very well in his first three months. His travel ban aimed at some Muslim-majority countries has been blocked by the courts, his U.S.-Mexico border wall has gone nowhere in Congress, and he has retreated, at least for now, on his vow to target illegal immigrants brought here as children.

But one strategy that seems to be working well is fear. The number of migrants, legal and illegal, crossing into the United States has dropped markedly since Trump took office, while recent declines in the number of deportations have been reversed.

Many experts on both sides of the immigration debate attribute at least part of this shift to the use of sharp, unwelcoming rhetoric by Trump and his aides, as well as the administration’s showy use of enforcement raids and public spotlighting of crimes committed by immigrants. The tactics were aimed at sending a political message to those in the country illegally or those thinking about trying to come.

“The world is getting the message,” Trump said last week during a speech at the National Rifle Association leadership forum in Atlanta. “They know our border is no longer open to illegal immigration, and if they try to break in you’ll be caught and you’ll be returned to your home. You’re not staying any longer. If you keep coming back illegally after deportation, you’ll be arrested and prosecuted and put behind bars. Otherwise it will never end.”

The most vivid evidence that Trump’s tactics have had an effect has come at the southern border with Mexico, where the number of apprehensions made by Customs and Border Patrol agents plummeted from more than 40,000 per month at the end of 2016 to just 12,193 in March, according to federal data.

[Blame game: Trump casts immigrants as dangerous criminals, but the evidence shows otherwise]

Immigrant rights advocates and restrictionist groups said there is little doubt that the Trump administration’s tough talk has had impact.

“The bottom line is that they have entirely changed the narrative around immigration,” said Doris Meissner, who served as the commissioner of the U.S. Immigration and Naturalization Service in the Clinton administration. “The result of that is that, yes, you can call it words and rhetoric, and it certainly is, but it is changing behavior. It is changing the way the United States is viewed around the world, as well as the way we’re talking about and reacting to immigration within the country.”

. . . .

“One thing this administration has done that the Democrats’ message has to recalibrate for is that it’s not credible to the American people to say enforcement plays no role in [reducing] the numbers of immigrants coming illegally,” Fresco said. “Some have tried to perpetuate a myth that it is not linked. To the extent the numbers stay low, one thing the Trump administration has been able to say that is a correct statement is that enforcement does factor into the calculus.”

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Read the entire article at the above link. President Trump might be losing the battles, but winning the war. That, in turn, might force Democrats to revise their views on immigration enforcement as part of long-term immigration reform.

PWS

05-01-17

“Send Lawyers, Guns, and Money . . . .” — But, Bipartisan Legalization Is What Undocumented Residents REALLY Need, Says N. Rappaport in THE HILL!

Quote from “Lawyers, Guns and Money,” by Warren Zevon, check it out here: http://www.lyricsmode.com/lyrics/w/warren_zevon/lawyers_guns_and_money.html

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http://thehill.com/blogs/pundits-blog/immigration/329310-noncriminal-immigrants-facing-deportation-need-legalization

Nolan writes in a recent op-ed from The Hill:

“The absence of due process protections is permissible because IIRIA “clarified” that aliens who are in the United States without inspection are deemed to be “arriving.” In other words, they are not entitled to the rights enjoyed by aliens who have been admitted to the United States because, technically, they are not in the United States. This legal fiction has been accepted now for more than 20 years.

Previous administrations arbitrarily have limited expedited removal proceedings to aliens at the border and aliens who entered without inspection and were apprehended no more than 100 miles from the border after spending less than 14 days in the country.

But Section 235(b)(1)(A)(iii)(ll) of the Immigration and Nationality Act (INA) authorizes expedited removal proceedings for any alien “who has not been admitted or paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility.”

President Trump can use expedited removal proceedings to deport millions of noncriminal aliens without hearings before an immigration judge or the right to appeal removal orders to the Board of Immigration Appeals.

The only way to stop him is to find a way to work with him on a comprehensive immigration reform bill that includes a legalization program. And time is running out.

The Trump administration is quickly identifying ways to assemble the nationwide deportation force that President Trump promised on the campaign trail.

Preparations are being made for U.S. Customs and Border Protection (CBP) to hire 5,000 new officers and for U.S. Immigration and Customs Enforcement (ICE) to hire an additional 10,000. Also, ICE has identified 27 potential locations that could increase its detention space by 21,000 beds, and CBP plans to expand its detention capacity by 12,500 spaces.

But it is not too late to work on a deal that would meet the essential political needs of both parties … yet.”

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

Go over to The Hill at the link to read Nolan’s complete op-ed.

I agree with Nolan that given the huge backlogs in the U.S. Immigration Courts, the Administration will use every device at its disposal to avoid the Immigration Courts and completely eliminate due process protections for as many individuals as possible. Moreover, as I have pointed out in a recent blog, to date the Article III Courts have been willing to turn a blind eye to the rather obvious due process and statutory issues involved in expedited removal. See http://wp.me/p8eeJm-IG.

To state the obvious: “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum” is meaningless without a fair opportunity to be heard on the asylum application before an impartial adjudicator, with a meaningful opportunity to present evidence, and represented by counsel of one’s choice. And, the idea that individuals who have spent months in detention in the U.S. aren’t entitled to “due process” in connection with their asylum applications (which are “life or death” applications) is facially absurd.

Yeah, I know that the Third Circuit in Castro v. DHS spent the whole decision on a turgidly opaque discussion of jurisdiction and and “suspension of habeas.” Surprising how folks living in the “ivory tower” with lifetime job security can sometimes drain all of the humanity out of “real life” tragedies.

But, frankly, in four decades of being a “highly interested observer” of immigration litigation, I’ve never seen an Article III Court, including the Supremes, be deterred from running over supposed statutory limitations on judicial review when motivated to do so. Perhaps it will take some Federal Judge’s nanny, maid, gardener, driver, handyman, neighbor, fellow church member, student, or in-law being swept up in the new “DHS dragnet” to “motivate” the courts here.

In the meantime, as pointed out to me by Nolan in a different conversation, there is some hope for due process in the Third Circuit’s dictum in Castro. In “footnote 13,” the court actually indicates that there might be a “constitutional break point” for review of expedited removal:

“Of course, even though our construction of § 1252 means that courts in the future will almost certainly lack statutory jurisdiction to review claims that the government has committed even more egregious violations of the expedited removal statute than those alleged by Petitioners, this does not necessarily mean that all aliens wishing to raise such claims will be without a remedy. For instance, consider the case of an alien who has been living continuously for several years in the United States before being ordered removed under § 1225(b)(1). Even though the statute would prevent him from seeking judicial review of a claim, say, that he was never granted a credible fear interview, under our analysis of the Suspension Clause below, the statute could very well be unconstitutional as applied to him (though we by no means undertake to so hold in this opinion). Suffice it to say, at least some of the arguably troubling implications of our reading of § 1252 may be tempered by the Constitution’s requirement that habeas review be available in some circumstances and for some people.”

I suspect that the Administration eventually will push expedited removal and credible fear denials to the point where there will be some meaningful judicial review. But, lots of folks rights are likely to be trampled upon before we reach that point.

Nolan’s suggestion for a bipartisan legislative solution certainly seems reasonable and highly appropriate from the viewpoint of both sides. The Administration is about to invest lots of resources and credibility in a “war to deport or intimidate just about everybody” that it is likely to lose in the long run. But, advocates are likely to be bleeding resources and losing individual battles for some time before the tide eventually turns, if it ever does. Anything that depends on litigation as the solution has many risks and unpredictable outcomes that might leave both sides unsatisfied with the results.

Sadly, nobody in the Administration seems interested in solving this issue. The policy appears to be driven by Attorney General Jeff Sessions, a lifelong opponent of immigration reform who seldom if ever has a kind word to say about any immigrant, legal or undocumented.

Secretary Kelly has become “Sessions’s Parrot,” apparently devoid of any original or constructive thoughts on the subject of immigration. In particular, his recent “put up or shut up” outburst directed at Congressional Democrats who sought some meaningful oversight and clarification of his enforcement policies did not seem to be an entree for better dialogue.

Although there almost certainly is a majority of Democrats and Republicans in favor of reasonable immigration reform, which the majority of the country would also like to see, leadership of both parties seems fairly discombobulated. There seems to be “zero interest” in putting together a legislative coalition consisting of Democrats and a minority of Republicans to get anything done. And, even if such a coalition were to coalesce, President Trump likely would veto any constructive result in the area of immigration.

As I’ve pointed out before, there are a number of reasons why folks don’t always act in their best interests or the best interests of the country. But, I appreciate Nolan’s efforts to promote “thinking beyond conflict.” I want to think that it can come to fruition.

PWS

04-20-17

Oral Argument Set For May 8 In International Refugee Assistance Project v. Trump — 4th Cir. Grants Gov’s Request to Expedite!

http://www.nationallawjournal.com/home/id=1202781955190/Fourth-Circuit-Expedites-Travel-Ban-Case-Sets-May-8-Hearing?mcode=1202617074964&curindex=0&slreturn=20170225010630

The National Law Journal reports:

“The U.S. Court of Appeals for the Fourth Circuit agreed Thursday to expedite a challenge to President Donald Trump’s travel ban executive order, setting oral arguments in the case for May 8 at the court in Richmond.
The government appealed a Maryland U.S. district court’s order last week that blocked a portion of the president’s March 6 executive order restricting travel from six majority-Muslim countries. On Wednesday, the Justice Department requested the court expedite the briefing schedule for the appeal, arguing that lower courts and the Ninth Circuit all expedited litigation surrounding both the March 6 executive order and the first order, now revoked, which was issued Jan. 28.
The government had also indicated in its request to expedite the process that it intends to file a motion to stay the injunction pending appeal. According to the court’s schedule, the government plans to file that motion Friday. The plaintiff’s response will be due March 31, with the government’s reply due April 5.
The government said the issue is “of national importance” and has national security implications, making it worthy of a speedy schedule. According to the filing, the plaintiffs disagreed with the government’s proposed schedule, and requested a May 10 deadline for their briefs. The Fourth Circuit originally issued a briefing schedule requiring the government to file its opening brief April 26, with the briefing completed by June 9.”

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

PWS

03/25/17

WashPost OPINION: David Cole Lays Out The Case For Rejecting “Travel Ban 2.0” — Why Judges Should Look Behind The Language OF The EO To Determine “Intent”

https://www.washingtonpost.com/opinions/judges-shouldnt-ignore-what-we-all-know-trumps-travel-ban-is-really-about/2017/03/22/4ad23ce2-0f21-11e7-ab07-07d9f521f6b5_story.html?utm_term=.e93e1d53f89f

Cole writes:

“So does the immigration or the establishment-clause test govern? The answer should depend on the nature of the government’s action. Deference is proper when the political branches draw customary and “bona fide” immigration lines, especially when there is no suggestion of an improper purpose. It makes sense to defer to immigration decisions based on family ties or adherence to visa conditions, because it is next to impossible to regulate immigration without drawing such lines. But the Trump administration has advanced no reason immigration law should be a tool for denigrating religion.

Establishing religion has never been a proper goal of immigration law — or any law. Targeting Islam violates the rights of Americans, whatever form it takes; there is no justification for giving the government a pass because it is regulating the border. When Trump signed the first travel ban, he said, “We all know what that means.” We do, indeed. And judges, no less than the rest of us, must not blind themselves to what “we all know.”

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Curmudgeonly Observation Of The Day

As noted in his op-ed, Professor Cole wears “many hats,” one of which is as the attorney for the plaintiffs in International Refugee Assistance Project v. Trump, currently pending on appeal by the Government in the U.S. Court of Appeals for the Fourth Circuit.

I’m not saying that there is anything unethical or improper about Cole writing this article. Attorneys seem to do it all the time, although more often from the private than from the Governmental side. As long as the judge hasn’t entered a “gag order,”(very rare in civil litigation like this) it’s perfectly legit.

It’s probably just me being an “old guy” and having spent two decades toiling away on appellate and trial benches at the administrative level (certainly not the exalted level of the U.S. District Court or the Fourth Circuit). Nevertheless, as I indicated in my recent blogs about extra-judicial statements by Trump and his advisors, I continue to think it is a “bad practice” for parties and attorneys with pending cases to take the argument “out of court and into the media.”

In my judicial career I presided over a number of so-called “high profile” cases. As a judge, I never appreciated seeing articles or statements in the press by the attorneys of record or parties while the matter was pending before me (or “us” in the case of the BIA).

To me, it always seemed to indicate a curious desire by the party to have the case tried in a forum “other than the one I was presiding over.” That didn’t necessarily warm my heart or increase my respect for the party.

Of course, as I judge I had to “get over it” (in the words of my esteemed former colleague, now retired, Judge Wayne R. Iskra) along with lots of other annoying “peripheral stuff” to treat the parties fairly and make a just decision on the law and facts. But, I always wondered: “Why even put that seemingly unnecessary ‘hurdle’ in front of me.”

Sure, nothing takes the place of “real life” reflections from those involved in big cases. That’s what “after the fact” articles, press conferences, law review pieces, books, and even movies are for. But, I think that it is most prudent for those actively involved in pending litigation to let their statements and filings in court speak for them. Surely, there are others in academia and the NGO community who could have written the same article that Cole did based on what is already in the public record.

PWS

03/24/17

DOJ’s Travel Ban Litigating Strategy Discussed — The Rush Appears To Be “Off!”

https://www.washingtonpost.com/news/post-nation/wp/2017/03/23/trump-said-dangerous-people-might-be-pouring-in-without-his-travel-ban-but-hes-not-rushing-to-restore-it/?utm_term=.91d750428250

Matt Zapotosky reports in the Washington Post:

“Legal analysts and opponents say the Justice Department is likely pursuing a more methodical, strategic approach in hopes of a long-term victory — although in the process, the administration is hurting its case that the order is needed for urgent national security.

“If they don’t try to move the case as quickly as possible,” said Leon Fresco, deputy assistant attorney general for the Office of Immigration Litigation in President Barack Obama’s Justice Department, “it does undermine the security rationale.”

Trump’s new travel order — which suspended the U.S. refugee program for 120 days and blocked the issuance of new visas to citizens of Iran, Sudan, Somalia, Libya, Somalia and Syria for 90 days — was supposed to take effect March 16, but U.S. District Judge Derrick K. Watson in Hawaii blocked the administration from enforcing the critical sections of it. Early the next day, a federal judge in Maryland issued a similar ruling — leaving the administration with two different cases, in two different appellate circuits, that they would need to get overturned before they could begin carrying out the president’s directive. All roads seemed to lead to the Supreme Court.
But now it seems all but certain that the president’s revised entry ban will stay suspended at least into April, and possibly longer.

Lawyers for the Justice Department filed a notice of appeal in the Maryland case a day after the judge there ruled, but — unlike last time — they did not ask the higher court to immediately set aside the freeze on the new ban. They said they will do so Friday, but those challenging the ban will have a week to respond, and the Justice Department will then be allowed to file more written arguments by April 5.

The Trump administration has been content to let the court battle play out even more slowly in Hawaii, not elevating the dispute beyond a lower-court judge. The Justice Department has not filed a notice of its intent to appeal the ruling, and the next hearing in that case is set for March 29. Justice Department lawyers wrote Thursday that they would appeal to a higher court if that hearing doesn’t resolve in their favor. The courts will ultimately have to decide important questions, including how much authority they have to weigh in on the president’s national security determinations, whether Trump’s order was meant to discriminate against Muslims, and whether and how the president’s and his advisers’ own comments can be used against them.

There could be strategic reasons for pumping the brakes. Stephen W. Yale-Loehr, a professor of immigration law at Cornell Law School, said the Justice Department might be hoping for a favorable ruling from the U.S. Court of Appeals for the 4th Circuit, of which Maryland is a part, before they bring a case before the 9th Circuit, of which Hawaii is a part. A three-judge panel in the 9th Circuit unanimously rejected the administration’s bid to restore Trump’s first entry ban after it was frozen. The 4th Circuit on Thursday scheduled oral argument in its case for May 8.

And the Justice Department could be playing an even longer game, hoping that by the time the case makes its way to the Supreme Court, Neil Gorsuch will have joined the justices and brought to an end what many see as a 4-to-4 split along ideological lines, said Jonathan E. Meyer, a former deputy general counsel in the Department of Homeland Security under Obama who now works in private practice at Sheppard Mullin.”

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

Even assuming that the Supremes eventually take the case, by no means a “gimme,” it probably would not be heard by the Court until some time in 2018 with a decision perhaps months after the argument. During that time, it is highly likely that the Travel Ban will remain enjoined.

From a government standpoint, it’s always prudent to 1) think carefully before taking on issues that can be litigated in U.S. District Courts which have authority to issue nationwide injunctions which require only a preliminary showing and are very difficult to “undo” (by contrast, “Removal Cases” usually can only be litigated in Circuit Courts of Appeal, which, although higher on the “judicial totem pole” than USDCs, lack authority to issue nationwide injunctions in connection with such individual case judicial review); and 2) always have “Plan B.” Here, “Plan B” might be the more stringent requirements for screening and issuing visas from countries where terrorist activity has taken place set forth in Secretary of State Tillerson’s recent instructions discussed in my previous blog:

http://wp.me/p8eeJm-xN

PWS

03/23/17

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

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

Matt Zapotsky writes in the Washington Post:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

. . . .

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

[Emphasis supplied in all quotes]

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

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

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

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

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

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

PWS

02/23/17

Wow! Even Professor John “Johnny Waterboard” Yoo Thinks That Four Years Of Trump’s “‘So-called’ Judgement” Could Be Torture!

https://www.wsj.com/articles/trumps-so-called-judgment-1486941557

Yoo, author of the notorious “Torture Memos” under the Bush II DOJ, and his colleague Professor Sai Prakash (who, as far as I know, had nothing whatsoever to do with said Torture Memo) write in today’s Washington Post:

“But if presidential attacks on the courts are nothing new, the history also underscores the smallness of Mr. Trump’s vision. Jefferson, Lincoln and FDR knew when to speak and when to keep silent. They invoked the great powers of the presidency to oppose the Supreme Court only when fundamental constitutional questions were at stake: the punishment of political dissent; secession and slavery; Congress’s power to regulate the economy. The occasion for Mr. Trump’s fury is a temporary restraining order of a temporary suspension of immigration from seven countries. Mr. Trump still has the opportunity to prevail on the merits. He hasn’t lost the case—at least not yet.

The Trump administration will often appear in court over the next four or eight years. It will lose plenty of cases, because, like its predecessors, it will push the legal envelope. If the president publicly vents every time he loses a ruling, his complaints will recede into background noise.

Questioning judicial decisions, and even the judiciary’s legitimacy, is entirely proper. But a wise president will reserve such attacks for extraordinary matters of state involving the highest constitutional principles. To do otherwise risks dissipating the executive’s energy, weakening the president’s agenda, and wasting his political capital. When criticizing the Supreme Court for upholding the Bank of the United States, declaring Dred Scott a slave, or striking down the New Deal, presidents were advancing constitutional agendas worthy of a fierce attack on the courts. Mr. Trump is upset about losing a minor procedural test of a temporary executive order. If he doesn’t learn to be more judicious, we’re in for a long four years.”

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Kinda says it all. Yoo and Prakash are right. All Administrations lose cases on a daily basis in Federal Courts throughout the county — literally thousands of them over a full Administration.

I know, because one of my duties as the Deputy General Counsel of the “Legacy INS” was to to write or supervise the writing of “Adverse Decision Reports” (known in the DOJ litigation business as “Tombstones”) to the Solicitor General’s Office. It could have been almost a full time job (without some “help from my friends” in the office and the field).

And, of course, the INS was only one of many Government agencies litigating in the Federal Courts every day. We at the “Legacy INS” even had our own “dedicated litigation division,” known as the “Office of Immigration Litigation (“OIL”)” within the Civil Division. Also, no (or almost no) term of the Supreme Court goes by without the USG being on the “losing” side of one or more major decisions.

So, the Prez better get used to it. He could start by paying more attention to the career “Federal Court Pros” in the Solicitor General’s Office and OIL and less attention to the views of guys like Stephen Miller, Steve Bannon, and even VP Mike Pence who are totally clueless as to how to conduct winning Federal litigation. Indeed, as Governor of Indiana, Pence got “totally creamed” in his disingenuous, mean-spirited, and illegal attempt to bar the resettlement of well-screened Syrian refugee families in Indiana. But, some folks never learn (and. perhaps, never will).

PWS

02/13/17

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