Department of Justice – Page 285 – immigrationcourtside.com

Judge Posner Slams BIA For Ignoring Evidence Of Worsening Conditions In South Sudan — Deng Arej v. Sessions — 7th Cir.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D03-28/C:15-2061:J:Posner:aut:T:fnOp:N:1937333:S:0

“Arej has conceded that he qualifies as a criminal alien under 8 U.S.C. § 1252(a)(2)(C), so our review of the Board’s decision is limited to issues of law. 8 U.S.C. § 1252(a)(2)(D). But it was a serious legal error for the Board to have ignored Arej’s evidence. As we noted in Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008), the Board cannot make a reasoned decision to deny a motion to reopen if it ignores the evidence that a petitioner presents.

Furthermore, a competent immigration service would not ignore world events. The dramatically worsening conditions in South Sudan have been widely reported, with the young nation described as “cracking apart” and United Nations officials raising concerns about genocide. See, e.g., Jeffrey Gettleman, “War Consumes South Sudan, a Young Nation Cracking Apart,” New York Times, March 4, 2017, https://nyti.ms/2lHeELw. “Tens of thousands of civilians have been killed”; “every major cease‐fire that has been

No. 15‐2061 5

painstakingly negotiated by African and Western officials has been violated”; and “dangerous fissures are opening up within the South Sudanese military.” Id. And time doesn’t stand still. The Board’s order dismissing Arej’s appeal from the immigration judge’s denial of his motion to reopen was issued on May 8, 2015—almost two years ago. Considering that Arej has not yet been removed and that the order was perfunctory, the Board should consider whether he should be allowed to present evidence concerning current conditions in the two Sudans. See 8 C.F.R. § 1003.2(a).

The petition for review is therefore granted, the decision of the Board vacated, and the case remanded to the Board for further proceedings consistent with this opinion.”

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Seems like a South Sudan case would be a “no brainer” for reopening by the BIA. Not sure we even deport folks there. And, actually reviewing the evidence carefully would be a great first step toward becoming “the world’s best administrative tribunals, guaranteeing fairness and due process for all.” Or, has the vision become just a slogan from bygone years? He’s probably only eligible to apply for withholding or CAT, though, because of the nature of his criminal conviction.

PWS

03/29/17

Supremes Struggle With Immigrant’s Ineffective Assistance Case — OA Inconclusive!

https://www.washingtonpost.com/politics/courts_law/supreme-court-weighs-deportation-case-after-an-attorney-dished-out-bad-advice/2017/03/28/ef6bfae2-13f2-11e7-9e4f-09aa75d3ec57_story.html?utm_term=.49ad57f5504e

Robert Barnes writes in the Washington Post:

“Everyone agrees that Jae Lee pleaded guilty to a drug charge and now faces deportation to South Korea because of bad lawyering.

The Tennessee restaurateur, who came to the United States as a child in 1982, was told if he took the plea he’d serve a year in prison. But his lawyer Larry Fitzgerald told him there was no chance that a longtime legal permanent resident like him would be deported. Fitzgerald was wrong.

But does Fitzgerald’s mistake make any difference if the evidence against Lee was so strong that he almost certainly would have been convicted had he rejected the deal and gone to trial? As the appeals court that ruled against him noted, he would still be deportable.

The Supreme Court struggled with the issue Tuesday. Does Lee deserve a second chance, because of his lawyer’s mistake, to either seek a plea deal that would not result in his deportation or roll the dice with a jury and hope that somehow he is not convicted?

The answer could be important, as the Trump administration promises a new vigor in deporting immigrants convicted of crimes.”

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The Justices appeared to be sympathetic to Mr. Lee. But, that might not be enough to add up to a victory for him.

PWS

03/29/17

WashPost PROFILE: Elena Albamonte, Due Process Heroine — As DHS Prosecutor She Saw The Problems — After Retirement, She’s Fixing Them One Tough Case At a Time — And, She’s Doing It At The Stewart (Detention Facility) Immigration Court In Lumpkin, GA, One Of America’s Least Hospitable Environments For Asylum Seekers!

https://www.washingtonpost.com/local/she-helped-deport-hundreds-of-undocumented-immigrants-now-shes-fighting-for-them/2017/03/27/9dc59cc6-04e7-11e7-b9fa-ed727b644a0b_story.html

Steve Hendrix writes:

“STEWART DETENTION CENTER, LUMPKIN, Ga. — In a tiny hearing room at one of the country’s most remote and unforgiving immigration courts, Elena Albamonte walked right past the table she had used for years as the government’s highest-ranking prosecutor here. Instead, she put her briefcase on the other table, taking a seat next to an Armenian man in prison garb who had illegally crossed into the United States.

After a three-decade career overseeing deportations as a government immigration lawyer, Albamonte has switched sides.

“Ready, your honor,” Albamonte said to immigration court Judge Dan Trimble after tidying a thick file of legal documents.

She knew her chances of persuading Trimble to grant her client political asylum were awful. Even before President Trump’s crackdown on the nation’s 11 million undocumented immigrants, the judges at Stewart had been deporting detainees at startlingly high rates. Trimble had turned down 95 percent of those seeking asylum from fiscal 2011 to 2016, according to a study of immigration judges by Syracuse University.

But for 40 minutes, Albamonte gamely made the case for Geregin Abrahamyan, a 33-year-old who said he was repeatedly beaten and threatened because of his political activity in Armenia.

Abrahamyan had been in Immigration and Customs Enforcement custody since the day he and his pregnant partner and their 3-year-old daughter crossed from Mexico seven months earlier and turned themselves in at a Border Patrol office. Mother and daughter were quickly granted parole and live with Abrahamyan’s parents in California. But Abrahamyan was shipped across the country and had yet to meet his son, who was born in August.
Albamonte, 60, argued that he was eligible for asylum despite being turned down once before and that he had suffered additional beatings in Armenia that the court should know about.”

. . . .

She doesn’t apologize for prosecuting hundreds of asylum cases that ended in deportation.

“Not everyone has a right to asylum under the law as it is written,” she said. “But everybody does deserve competent, fair representation. That’s how the system is supposed to work.”

And that is how she wound up staying here, far from her home in the Washington suburbs, living in a tiny Southern town and working on the opposite side of the issue that defined her career.

“I never expected any of this,” she said.

. . . .

She doesn’t apologize for prosecuting hundreds of asylum cases that ended in deportation.

“Not everyone has a right to asylum under the law as it is written,” she said. “But everybody does deserve competent, fair representation. That’s how the system is supposed to work.”

And that is how she wound up staying here, far from her home in the Washington suburbs, living in a tiny Southern town and working on the opposite side of the issue that defined her career.

“I never expected any of this,” she said.”

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Hendrix’s full-page, in depth profile of Elena and her amazing career is a “must read” for anyone seeking to understand the challenges of providing due process in today’s U.S. Immigration Court system. And, Elena is a truly inspiring role model for young lawyers seeking to enter the immigration field. Elena’s career demonstrates the importance of combining knowledge with flexibility and interpersonal skills and caring. As pictured in this article, Elena treats everyone she comes in contact with clients, staff, court personnel, opponents, and Immigration Judges with respect, conviviality, and genuine humanity. She recognizes an essential truth — the law is complex and often difficult, but it is the people who will make or break you in practicing law.

I’m proud to say that Elena once worked for me during my tenure as Chair of the BIA. Our paths later crossed when she was detailed to the Arlington Immigration Court as an Assistant Chief Counsel several years before my retirement. I think I told her at that time that a number of my colleagues had remarked on how much we appreciated her skills as a trial lawyer and enjoyed having her appear before us. Obviously, she’s taken those skills with her into private practice.

I’ve also commented previously about the inherent unfairness of the U.S. Immigration Court agreeing to locate “captive courts” within detention centers where effective representation is often unavailable, public access (and therefore transparency) is limited, and the atmosphere is not conducive to the impartial delivery of justice. Clearly, this Administration intends to double down on this unfortunate practice rather than seeking to end or phase it out.

Don’t think that representation by someone like Elena makes a difference for a respondent? Well, by my count, she’s succeeded in six of her seven cases where decisions have been rendered by the Immigration Judge. That’s a success rate of about 85% in a location where the average asylum grant rate is 5% — an astounding 1,700% difference.

Thanks, Elena, for all you have accomplished for the cause of justice during your career and for your continuing commitment to providing due process for the most needy and vulnerable among us! You are truly an inspiration to all of us!

PWS

03/29/17

POLITICO LITIGATION: DOJ In “Stall Mode” In Hawaii Travel Ban Case — “Dire Emergency” Threatening The Republic Subsides As Curiously As It Arose, Leaving Experts To Ponder The Meaning Of The Administration’s Changed Strategy!

http://www.politico.com/blogs/under-the-radar/2017/03/donald-trump-travel-ban-ninth-circuit-appeal-236575

Josh Gerstein writes in Politico:

“When President Donald Trump’s first travel ban executive order was effectively shut down by a federal judge, the Trump administration seemed to be in a huge rush to get the policy back on track.

This time? Not so much.

It took less than a day for Justice Department lawyers to file an appeal last month after U.S. District Court Judge James Robart blocked the key parts of Trump’s directive.

A few hours later — just after midnight Eastern Time — the federal government filed an emergency motion asking the San Francisco-based 9th Circuit to allow the president to move forward with his plan to halt travel to the U.S. from seven majority-Muslim countries and to suspend refugee admissions from across the globe.

A three-judge 9th Circuit panel unanimously turned down Trump’s request, prompting the president to redraft the executive order, dropping Iraq from the roster of affected countries and exempting existing visa-holders from the directive.

But when a federal judge in Hawaii issued a broad block on the new order March 15, just hours before it was set to kick in, there was no immediate appeal. In fact, nearly two weeks later, the Justice Department is still tangling with Honolulu U.S. District Court Judge Derrick Watson and has yet to take the issue back to the 9th Circuit.

The delay has puzzled many lawyers tracking the litigation, particularly given Trump’s public warning that “many very bad and dangerous people may be pouring into our country” as a result of the courts’ interference with his first travel ban directive. A total of two months have now passed since Trump signed his first order.

“A lot of people have talked about that,” said University of Richmond law professor Carl Tobias. “It seems hard to wait on this without undercutting the argument” that the travel ban order is needed to address an urgent national security threat, he added.

Some attorneys believe the Justice Department is intentionally dragging its feet in the Hawaii case because the 9th Circuit rotates the three-judge panels assigned to motions every month, with the next swap-out due Saturday. The 9th Circuit also announces the panels publicly, although not in advance. This month’s consists of two Obama-appointed judges — Morgan Christen and John Owens — along with George W. Bush appointee Milan Smith.”

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Interesting that Gerstein reports later in his article that the 4th Circuit might “bypass” the panel stage and just send the “Maryland case” directly to the en banc court. I hadn’t picked up on that. Sounds unusual.

As I have speculated before, no matter what happens in the 4th Circuit, if this issue does get to the Supremes, it’s unlikely to be decided until some time in 2018. So, barring something pretty unusual, the Travel Ban will be “banned” for the foreseeable future.

I suspect that by then, the Administration will have discovered that it doesn’t need an Executive Order and all this hoopla to quietly and gradually “beef up” visa and refugee vetting in individual cases or groups of cases where it is warranted. They have already started that process, as I previously reported. I think the scope, method, publicity, and “in your face” tone of the two EOs are what got them into difficulty with the courts.

PWS

03/29/17

PETULA DVORAK IN THE WashPost: Forget The Administration’s Fear-Mongering — There Are Many Amazing Kids In Our Midst Seeking Survival & A Chance To Contribute! These Are The Kids I Met In Immigration Court — And I Am Still Moved & Inspired By What Many Of Them Have Achieved & Their Potential!

https://www.washingtonpost.com/local/theyve-survived-untold-horrors-undocumented-teens-dont-deserve-to-be-demonized/2017/03/27/518dcebe-09b5-11e7-a15f-a58d4a988474_story.html?hpid=hp_regional-hp-cards_rhp-card-columnists%3Ahomepage%2Fcard&utm_term=.346ab2350bee

Petula Dvorak writes in her regular local column in the Washington Post:

“Their dreams — to become a lawyer, an interior decorator, a sailor in the Navy — are a lot like the dreams that other kids at their Maryland high school have.

It’s their nightmares — seeing relatives killed, paying off coyotes, being raped at the border, spending weeks in a detention center, being homeless in a new country — that make them so different.

“They’ve survived untold horrors,” said Alicia Wilson, the executive director at La Clinica Del Pueblo, which is working with Northwestern High School to help these teenagers.

The Hyattsville school has absorbed dozens of these students — part of a wave of more than 150,000 kids who have crossed the U.S. border over the past three years fleeing violence in Central America.

We usually hear about these young immigrants only when they’re accused of committing heinous crimes — such as the two undocumented students charged with raping a 14-year-old classmate in a bathroom at Rockville High School. Or when they become victims of heinous crimes — such as Damaris Reyes Rivas, 15, whose mother wanted to protect her from MS-13 in El Salvador but lost her to the gang in Maryland.

In country with a growing compassion deficit, plenty of people resent these kids, demonizing them along with other undocumented immigrants. But I wish those folks got to spend the time with them that I did. They’re funny, vulnerable, hard-working and stunningly resilient.”

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Exactly what I found in more than a decade as a trial judge at the Arlington Immigration Court. The young people were among the most memorable of the thousands of lives that passed through my courtroom. “Funny, vulnerable, hard-working and stunningly resilient,” yes they were all of those things. To that, I would add smart, courageous, talented, motivated, and caring.

Many appeared at the first Master Calendar speaking only a few words of English. By the time the second Master rolled around (often 9-12 months on my overcrowded docket) they were basically fluent. And, they often were assisting others in the family to understand the system, as well as taking on major family responsibilities with parents or guardians holding down two, or sometimes three jobs.

I checked their grades and urged/cajoled them to turn the Cs into Bs and the Bs into As. Many brought their report cards to the next haring to show me that they had done it.

I recognized the many athletes, musicians, chess players, science clubbers, and artists who were representing their schools. But, I also recognized those who were contributing by helping at home, the church, with younger siblings, etc.

Just lots of very impressive young people who had managed to put incredible pain, suffering, and uncertainty largely behind them in an effort to succeed and fit in with an strange new environment. They just wanted a chance to live in relative safety and security and to be able to lead productive, meaningful lives, contributing to society. Pretty much the same things that most off us want for ourselves and our loved ones.

More often than not, with the help of talented, caring attorneys, many of them serving in a pro bono capacity, and kind, considerate Assistant Chief Counsel we were able to fit them into “the system” in a variety of ways. Not always, But, most of the time. Those who got to stay were always grateful, gracious, and appreciative.

Even those we had to turn away I hope left with something of value — perhaps an education — and the feeling that they had been treated fairly and with respect, that I had carefully listened and considered their claim to stay, and that I had explained, to the best of my ability, in understandable language, why I couldn’t help them. Being a U.S. Immigration Judge was not an easy job.

Overall, I felt very inspired when I could play a positive role in the lives of these fine young people. “Building America’s future, one life at a time, one case at a time,” as I used to say.

PWS

03/28/17

WashPost: 3 Iraqi Refugees in VA Charged with Immigration Fraud — Allegedly Hid Family Ties & Made Up Stories Of Abuse

https://www.washingtonpost.com/local/public-safety/iraqi-refugees-in-va-accused-of-hiding-tie-to-a-kidnapper-to-get-into-us/2017/03/28/2997716e-13c2-11e7-833c-503e1f6394c9_story.html?utm_term=.b05079ddbe27&wpisrc=nl_buzz&wpmm=1

Rachel Weiner reports:

“When Yousif Al Mashhadani came to the United States as a refugee in 2008, he told officials he had been kidnapped in his native Iraq because of his anti-corruption efforts and wanted to come to America for his own safety.

Now, prosecutors in the Eastern District of Virginia say Al Mashhadani lied about being kidnapped and about his own connection to a vicious kidnapper.

On Tuesday, Al Mashhadani, his brother Adil Hasan, and Hasan’s wife, Enas Ibrahim, appeared in court on charges of naturalization fraud.

All three live in Fairfax County; they moved here from Iraq in 2008. But when they applied to become lawful permanent U.S. residents, none of them acknowledged a relationship to Majid Al Mashhadani, a convicted kidnapper who is Yousif Al Mashhadani and Hasan’s brother, an affidavit from FBI agent Sean MacDougal said.”

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Obviously, the defendants are innocent until proven guilty. But, if the Government does prove these charges, then these three individuals have not only compromised the integrity of the U.S. refugee system, but also endangered the lives of many Iraqis who legitimately qualify for protection, but are caught up in the anti-refugee hysteria being promoted by the Trump Administration. Cases like this damage the chances of all legitimate refugees to receive the life-saving protection which they need and deserve.

I’d also like to put in a good word for the DHS criminal enforcement operation. Taking apart complicated cases like this and developing them into viable criminal prosecutions takes skill, sophisticated knowledge, perseverance, and dogged attention to detail.

My personal experience has been that the DHS generally does an outstanding job of ferreting out and prosecuting refugee and asylum fraud, even when, as here, the cases takes years to develop. Then, cases that shouldn’t have been granted are reopened, status is revoked, and removal proceedings are instituted.

During my time at the Arlington Immigration Court, the DHS and the U.S. Attorney’s Office in Alexandria “broke” major asylum fraud cases relating to Indonesians and Cameroonians. The principals went to jail and those who knowingly participated in the fraud had their status revoked and were removed from the United States. So, in the end, the DHS did their job well, and justice was served.

As a judge, I was an adjudicator, not an investigator. So, I appreciated the investigative skills of those who brought the truth to light and thereby helped us keep our system honest.

PWS

03/28/17

IMMIGRATION COURT REPORT: “ADR” In Full Swing Again At EOIR — Detailed U.S. Immigration Judges Twiddle Thumbs As Home Dockets Suffer!

ADR = “Aimless Docket Reshuffling,” a phenomenon that occurs when political officials at the DOJ direct EOIR to “reprioritize” existing U.S. Immigration Court dockets to meet politically-driven enforcement goals. Results in U.S. Immigration Judges being reassigned from regularly scheduled largely “ready for trial” pending cases to “priority cases” that often are NQRFPT. Therefore almost nothing gets completed, but the court staff is overburdened and the private bar and individual respondents as well as the DHS Assistant Chief Counsel see already prepared cases reassigned to new judges who don’t have time to hear them or “orbited” to spots at the end of the docket several years from now. Results in growing backlogs even with more judges employed in the system.

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As reported in LexisNexis Immigration https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/2017/03/27/eoir-posts-new-hearing-location-details.aspx?Redirected=true EOIR has announced several rounds of details of U.S. Immigration Judges to “detained locations” as part of its “implementation of President Trump’s January 25th Executive Orders.” Julia Edwards Ainsley previously reported on this development in Reuters http://wp.me/p8eeJm-vF.

However, according to several sources, once at the “detail court” these judges often have precious little to do.

To paraphrase some familiar with the system, “The only ‘surge’ happening here is a surge of judges. There’s no surge of cases.” But, you can bet that there was a “surge in frustration” from those whose previously scheduled cases were rescheduled to accommodate these unneeded details.

Just another “keystone cops” episode at DOJ? Tempting analysis, but not so funny when you consider that human lives and futures are being affected. Also, transferring busy judges from already jam-packed dockets to do little or nothing at the border to keep the “political bosses” satisfied wastes the taxpayers’ money and undermines the credibility of the Immigration Court. That’s bad for everyone.

Most Immigration Judges I know are 1) busy all the time (unlike many other judges, Immigration Judges are expected to schedule cases eight hours/day, every work day of the week except for four hours/week of “administrative time” for case preparation, decision writing, and continuing education); 2) fanatic about wanting to complete the cases on their daily dockets.

Consequently, I doubt that any sitting Immigration Judge would have thought it was a good idea to cancel or reassign their regular dockets to do a minute number of cases as a detailed judge.

Moreover, because the Immigration Court is not “automated,” detailed Immigration Judges who have extra time have no access to pending motions that are piling up in their chambers during details. So, unlike the “home court” where a judge often can find “chambers work” to do during unanticipated “down time,” on detail “down time” is just that — wasted time.

Finally, there is the obvious question. What is a supposedly impartial, due process oriented court system doing mindlessly carrying out the President’s Executive Order on immigration enforcement to the derogation of its own already-pending cases? We need an independent Article I United States Immigration Court!

PWS

03/28/17

WashPost: AG Sessions Claims Bogus Link Between MD HS Rape & Proposed “Trust Act” — WashPost Editorial Begs To Differ!

https://www.washingtonpost.com/local/md-politics/ag-jeff-sessions-marylands-trust-act-would-put-residents-at-risk/2017/03/27/36527088-1319-11e7-833c-503e1f6394c9_story.html?utm_term=.eb64ae97731b&wpisrc=nl_buzz&wpmm=1

“That would be such a mistake,” he said of the bill. “I would plead with the people of Maryland to understand that this makes the state of Maryland more at risk for violence and crime, that it’s not good policy.”

Del. Kathleen M. Dumais (D-Montgomery), who is a co-sponsor of the legislation and defended it during floor debates, said the measure does not prevent corrections officers or local law enforcement from cooperating with federal agents when undocumented immigrants have committed serious crimes.

“Before criticizing proposed legislation, I suggest that Attorney General Sessions take time to actually read the bill,” she said. “The Trust Act certainly does not make Maryland more at risk for crime and violence. Anyone who commits a crime or violence in Maryland should be and is prosecuted to the full extent of the law, regardless of immigration status.”

The Trust Act is similar in many respects to uncodified policies for handling illegal immigrants in place in Montgomery County and other Maryland suburbs.”

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Sessions’s attempt to link the rape with the proposed Trust Act is totally bogus. Most obviously, the Trust Act is not in force, and might never be, so it could not have had any effect on the rape case.

But, more significantly, neither of the alleged perpetrators had any prior criminal record and neither had ever been in the custody of the State of Maryland. Needless to say, the DHS had therefore never lodged a detainer with the State, nor had the State declined to cooperate with the DHS in any way.

Moreover, even if the Trust Act were in effect, and the suspects were convicted, Maryland would honor a DHS detainer upon their release from incarceration with the filing of a Warrant of Arrest, which could easily be obtained in such a case.

Under the known circumstances, no legal action by the State of Maryland or by the DHS, for that matter, would have prevented this horrible incident. Even with the “Trump priorities” and the Administration’s expanded concept of “criminal alien” in effect, neither of the suspects, who apparently had no prior criminal involvement anywhere in the world, would have been candidates for expedited hearings. Moreover, given their family ties in Maryland and their lack of a criminal record, they probably would have been properly released on bond had the DHS tried to detain them prior to their arrest for the rape.

This situation is certainly tragic for the victim and for the school community. But, it has nothing to do with the “Maryland Trust Act.”

Ironically, prior to Sessions’s statement, the Washington Post ran an editorial pointing out that the Trust Act was actually a reasonable compromise between the needs of Federal immigration and state law enforcement authorities:

“Mr. Hogan is exercised that the bill would prohibit most localities from holding undocumented immigrants in jail for 48 hours after their scheduled release date at the request of U.S. Immigration and Customs Enforcement, so they can be transferred directly to federal custody. But nothing in the amended legislation would bar those localities from informing ICE of release dates so that federal officials could detain inmates when they walk out of jail.
Similarly, the bill requires localities to comply with any warrant to hold undocumented immigrants issued by federal courts on the basis of probable cause. Such a warrant would be easily obtainable by ICE in the case of prisoners who pose a danger to public safety or national security. Despite Mr. Hogan’s assertions, nothing in the bill blocks local officials from sharing information with federal authorities about an undocumented immigrant’s criminal record or responding to subpoenas. And jurisdictions that have decided to cooperate even more closely with the feds, including Frederick, Harford and Anne Arundel counties, could continue doing so.

The bill strikes a symbolic blow against the Trump administration by pledging the state’s refusal to help compile a Muslim registry, as Donald Trump, as a candidate, said he might do. But such a registry would face enormous legal obstacles before it ever become federal law. The bill prohibits local police from asking people on the street randomly about their immigration status, which is largely barred in the state anyway.

If adopted by the state Senate, the bill would represent that increasingly rare legislative thing: a compromise.”

PWS

03/27/17

ABA JOURNAL: Superstar Reporter Lorelei Laird Exposes The Impending Disaster In The U.S. Immigration Courts! (I Am One Of Her Quoted Sources)

http://www.abajournal.com/magazine/article/legal_logjam_immigration_court

Lorelei reports:

“In the fall of 2016, the Executive Office for Immigration Review was busy addressing these problems by hiring aggressively, spokeswoman Kathryn Mattingly said.

As of March, she said the agency had 301 seated judges and had requested authorization for a total of 399 judgeships. Those new judges are welcomed by legal and immigration groups—including the ABA, which called for more immigration judges with 2010’s Resolution 114B.

But that effort may be overwhelmed by changes under the Trump administration. Trump’s actions since taking office emphasize enforcement; his executive orders call for 10,000 more ICE agents and 5,000 more CBP officers, and they substantially reduce use of prosecutorial discretion. In his first months in office, there were several high-profile deportations of immigrants who had previously benefited from prosecutorial discretion and had little or no criminal record.

Although the DOJ eventually said immigration judges weren’t subject to the hiring freeze, it’s unclear whether immigration courts will be funded enough to handle all the additional cases. If not, Schmidt says, wait times will only worsen.

“If they really put a lot more people in proceedings, then it seems to me the backlog’s going to continue to grow,” he says. “How are they going to take on more work with the number of cases that are already there?”

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This is just a small sample. Read Lorelei’s much lengthier and complete analysis of all of the problems, including interviews with a number of other experts and a cross-reference to the ABA’s previous work predicting just such a docket disaster at the above link.

In my view, the Trump Administration is aggravating the problem, rather than seeking to improve the delivery of due process. Given the nature of the system, they might get away with it for awhile. But, eventually, one way or another, these chickens are coming home to roost. And, when they do, it won’t be pretty for the Administration, for anyone involved with the U.S. Immigration Court system, and for the American system of justice.

PWS

03/27/17

US Immigration Judge Samuel Cole (CHI) Grants Asylum To Singapore Dissident

https://www.nytimes.com/aponline/2017/03/25/us/ap-us-singapore-us-teen-asylum-seeker-.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=second-column-region®ion=top-news&WT.nav=top-news

The AP reports in the NY Times:

“A blogger from Singapore who was jailed for his online posts blasting his government was granted asylum to remain in the United States, an immigration judge ruled.

Amos Yee, 18, has been detained by federal immigration authorities since December when he was taken into custody at Chicago’s O’Hare International Airport. Attorneys said he could be released from a Wisconsin detention center as early as Monday.

Judge Samuel Cole issued a 13-page decision Friday, more than two weeks after Yee’s closed-door hearing on the asylum application.

“Yee has met his burden of showing that he suffered past persecution on account of his political opinion and has a well-founded fear of future persecution in Singapore,” Cole wrote.

Yee left Singapore with the intention of seeking asylum in the U.S. after being jailed for several weeks in 2015 and 2016. He was accused of hurting the religious feelings of Muslims and Christians in the multiethnic city-state. Yee is an atheist.

Many of his blog and social media posts criticized Singapore’s leaders. He created controversy in 2015 as the city-state was mourning the death of its first prime minister and he posted an expletive-laden video about Prime Minister Lee Kuan Yew just after his death.

Such open criticism of political leaders is discouraged in Singapore. The case raised questions about free speech and censorship and has been closely watched abroad.

Cole said testimony during Yee’s hearing showed that while the Singapore government’s stated reason for punishing him involved religion, “its real purpose was to stifle Yee’s political speech.” He said Yee’s prison sentence was “unusually long and harsh” especially for his age.

Singapore’s government criticized the decision.”

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Mr. Yee was successfully represented by Maryland immigration attorney Sandra Grossman of Grossman Law LLC.

As I have mentioned before in this blog, most fully litigated U.S. Immigration Court cases today, particularly those involving asylum or criminal law, involve exceptionally complex, and often sensitive, issues of law and fact which can’t be fairly resolved in a one to two hour time block. Yet, most of the Administration’s recent enforcement initiatives seem to assume that Immigration Court is an “assembly line” and that U.S. Immigration Judges are more or less “assembly line workers” who can be detailed to obscure locations on demand and perhaps required to work “night shifts” to keep the “deportation railroad running at full throttle.”

But, due process is not an assembly line operation. It usually takes time, expertise, careful scholarship, and detailed fact-finding for U.S. Immigration Judges to produce fair decisions that will pass muster upon judicial review in the Circuit Courts of Appeals. (I note that the Administration’s first, high-profile attempt to “ram” an immigration case — “Travel Ban 1.0” — through a Court of Appeals was spectacularly unsuccessful.)

These days, most individuals who are represented by competent counsel and reach the “Individual (Merits) Hearing” stage have at least some plausible defenses to removal. Indeed, a 2016 study by TRAC Immigration showed that more than half (57%) of the total dispositions in U.S. Immigration Court favored the individual. http://trac.syr.edu/immigration/reports/435/

And, this was during the Obama Administration which already was prioritizing so-called “serious criminals.” By expanding the “criminal alien” definition to include minor criminals and non-criminals, the Trump Administration will probably be taking on even more cases where it ultimately will fail to get a “final order of removal” unless concerted attempts are made to “game the system” to insure that individuals lose (for example, by denying individuals fair access to counsel or using prolonged detention in poor conditions as a device to persuade individuals to abandon their claims to remain in the US).

PWS

03/26/17

Supremes To Hear OA In Immigrant’s Ineffective Assistance/Prejudice Case On Tues. March 28!

http://www.huffingtonpost.com/entry/raw-deal-for-immigrant-at-us-supreme-court_us_58d55dabe4b0c0980ac0e5a2

Manny Vaargas, Senior Counsel at the Immigrant Defense Project writes:

“Mr. Lee is now asking the U.S. Supreme Court to reopen his criminal case to allow him to withdraw his ill-advised guilty plea. The government’s lawyers agree that Mr. Lee was incorrectly advised. Nevertheless, despite the fact that Mr. Lee has lived in the United States now for 35 years and faces deportation to a country that he has not been in since he was a small child, the government argues that Mr. Lee was not prejudiced by the incorrect advice. The government claims that no one in Mr. Lee’s shoes facing the evidence of guilt he allegedly faced could have rationally chosen to decline to plead guilty and risk a longer prison sentence if convicted after trial.

The government’s position completely ignores how important avoiding deportation can be to individuals like Mr. Lee with deep ties to this country. Indeed, showing just how paramount a concern avoiding deportation was and continues to be for Mr. Lee, he did not submit to deportation after completing his one year prison sentence, and instead has remained in federal custody for a total of seven years while fighting for permission to withdraw his plea. This is significantly longer than the three to five year term that he had been told he risked if his case had gone to trial and he lost. What more compelling evidence can there be of how important avoiding deportation can be to someone like Mr. Lee with deep roots in the United States?

Moreover, the government’s position ignores that there is a real possibility that someone like Mr. Lee, had he declined to plead guilty to the charged offense, might have been able to negotiate a different plea that would not have triggered mandatory deportation. Defense lawyers, aware or advised about relevant immigration law, often are able to work out alternative dispositions that satisfy prosecutors and avoid disproportionate immigration penalties in cases such as his. Or, failing that, Mr. Lee might have exercised his right to a trial and defeated the distribution charge.

The Supreme Court will hear argument in Mr. Lee’s case on Tuesday (March 28). All Mr. Lee asks of the Court is that it reopen his criminal case so that it can be resolved properly and fairly based on correct information regarding the critical immigration implications for him of different possible dispositions of his case. To give due respect to the Constitution’s important right to effective counsel, the Court should grant this modest request given the clearly inadequate counsel Mr. Lee received and the undeniable prejudice he has suffered as a result.”

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

The case is Lee v. U.S.

PWS

03/25/17

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.”

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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.”

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

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

Land Grab — DOJ “Lawyers Up” To Seize Private Property From Trump Supporters Along S. Border — Wall Trumps Property Rights!

https://www.washingtonpost.com/news/wonk/wp/2017/03/21/trumps-big-beautiful-wall-will-require-him-to-take-big-swaths-of-other-peoples-land/

Tracy Jan reports in the Washington Post:

“It’s going to be time consuming and costly,” said Tony Martinez, an attorney who is mayor of the border town of Brownsville, Tex. “From a political perspective, you have a lot of rich landowners who were his supporters.”

Trump, in his recent budget proposal, is calling for the addition of 20 Justice Department attorneys to “pursue federal efforts to obtain the land and holdings necessary to secure the southwest border.” The Justice Department would not expand upon the details. Of the department’s 11,000 attorneys, fewer than 20 currently work in land acquisition. Trump’s budget would double that.

The battle has been fought before. The last wave of eminent domain cases over southern border properties dates back to the 2006 Secure Fence Act authorizing President George W. Bush to erect 700 miles of fencing.

Of the roughly 400 condemnation cases stemming from that era, about 90 remain open a decade later, according to the Justice Department. Nearly all are in the Rio Grande Valley in southwest Texas.

The U.S. government has already spent $78 million compensating private landowners for 600 tracts of property for the construction of the existing pedestrian and vehicle fence, according to Customs and Border Protection. The agency estimates that it will spend another $21 million in real estate expenses associated with the remaining condemnation cases — not including approximately $4 million in Justice Department litigation costs.

. . . .

“It’s not like if you build a wall your problem is gone,” Barnard said. “We need more boots on the ground. More boats, more sensors, more drones that would be more efficient and more productive.”

It remains an open question how much sympathy Trump would have for Barnard’s situation — or that of any other private landowner standing in the way of Trump’s wall.

As a developer, Trump has wielded the power of eminent domain to make way for his properties. In Scotland, he pursued compulsory purchase to force neighbors out of their homes for the Trump International Golf Links near Aberdeen. When that didn’t work, he built a five-foot-tall wooden fence — then tried to make his neighbors pay for it.

Trump also famously tried seizing the property of an elderly Atlantic City widow to make way for a limousine parking lot for his hotel and casino. He has a consistent history supporting the use of eminent domain and praised the 2005 Supreme Court decision — denounced widely by conservatives — that said the government could force property owners to sell their land to make way for private economic developments that benefit the public.

“I happen to agree with it 100 percent,” Trump said during a 2005 Fox News interview. “If you have a person living in an area that’s not even necessarily a good area, and … government wants to build a tremendous economic development, where a lot of people are going to be put to work and … create thousands upon thousands of jobs and beautification and lots of other things, I think it happens to be good.”

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Duh, I thought conservatives had this “thing” about private property and government intrusions.

My prediction: Trump will long be gone, and they will still be litigating, negotiating, and wrangling over the right of way. And, as with many such “eminent domain” projects, by the time the government actually spends the time, money, and loss of good will to obtain the property, the original project will have long become obsolete (as this one in fact already is) and will be consigned to the dustbin, thus making the entire exercise a costly “wild goose chase.” Talk about waste, fraud, and abuse!

PWS

03/22/17

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