@THE SUPREMES⚖️👩🏻‍⚖️: Round Table🛡, ACLU 🗽Push Back Against S.G. Francisco’s 🤮False/Misleading Narratives! – NO, Migrants Seeking Mandatory Protection From Persecution In “Withholding Only Proceedings” Are NOT “Just Like Any Other Deportable Individuals” – NO, Providing Due Process In Bond Hearings Will NOT “Overload” The System — It’s A Significant, Yet Routine, Part Of Any Immigration Judge’s Job! – What “Overloads” The System Is The Race-Driven “Malicious Incompetence” Of Trump’s DOJ/EOIR!

J Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges

Asher Stockler reports for Law360:

. . . .

But the government said that, even if these withholding claims succeed, it still retains the right to deport the group of immigrants to other countries that will accept them. Because deportation is still on the table regardless of the status of those claims, the administration argued, the group of immigrants should be treated identically to those who are about to be deported.

The ACLU rebutted that argument, saying that such third-country deportations are exceedingly rare. Because of this, the ACLU said the availability of a third-country option should not mean the

https://www.law360.com/articles/1327892/print?section=appellate 1/2

11/12/2020 Justices Told Of Due Process Issues Without Bond Hearings – Law360

deportation-ready provision of the law kicks in. According to the American Immigration Council, fewer than 2% of immigrants who received persecution-based relief in fiscal year 2017 were ultimately deported to a third country.

The Justice Department also raised the possibility that having to scrutinize the practical odds of removal from immigrant to immigrant would be “patently unworkable.”

“A case-by-case approach … would needlessly add to the burdens that are already ‘overwhelming our immigration system,'” the department said, quoting a prior case.

But a coalition of former immigration trial and appeals judges pushed back on that idea with their own amicus brief Thursday.

“Bond hearings in withholding of removal proceedings are no different than bond hearings in other contexts,” the group, representing 34 judges who have cumulatively overseen thousands of cases, wrote. “Contrary to [the administration’s] assertion, bond hearings in withholding of removal proceedings neither lead to a slowdown of cases that ‘thwart Congress’ objectives’ in enacting the immigration laws, nor impose an administrative burden on immigration courts.” The American Civil Liberties Union is represented by its own Michael Tan, Omar Jadwat, Judy Rabinovitz, Cecillia Wang and David D. Cole.

The coalition of former judges is represented by David Keyko, Robert Sills, Matthew Putorti, Daryl Kleiman, Patricia Rothenberg and Roland Reimers of Pillsbury Winthrop Shaw Pittman LLP.

The plaintiffs are represented by Paul Hughes, Michael Kimberly and Andrew Lyons-Berg of McDermott Will & Emery LLP, Simon Sandoval-Moshenberg and Rachel McFarland of the Legal Aid Justice Center, Mark Stevens of Murray Osorio PLLC, and Eugene Fidell of Yale Law School’s Supreme Court Clinic.

The Trump administration is represented by Noel Francisco, Jeffrey Wall, Edwin Kneedler and Vivek Suri of the U.S. Solicitor General’s Office and Lauren Fascett, Brian Ward and Joseph Hunt of the U.S. Department of Justice’s Civil Division.

The case is Tony H. Pham et al. v. Maria Angelica Guzman Chavez et al., case number 19-897, at the U.S. Supreme Court.

–Editing by Michael Watanabe.

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

Read the complete article over on Law360. The case comes from the Fourth Circuit. Hopefully, the Biden-Harris Administration will withdraw the SG’s disingenuous petition (if not already denied by the Supremes) and implement the Fourth Circuit’s correct decision nationwide.

That’s the way to promote due process and judicial efficiency instead of constantly promoting inhumanity, abuse of due process, judicial inefficiency (fair adjudication is hindered by unnecessary detention in the Gulag), and chaos!

Many, many, many thanks to our all-star pro bono team:

David Keyko, Robert Sills, Matthew Putorti, Daryl Kleiman, Patricia Rothenberg and Roland Reimers of Pillsbury Winthrop Shaw Pittman LLP.

Couldn’t have done it without you guys! You constantly “Make us look smart!”

You can read our complete amicus brief here:

19-897 bsac Immigration Judges

According to “Round Table Oracle,” Sir Jeffrey S. Chase, this is our sixth filed Supreme Court amicus brief, with another currently in the pipeline.

And, they do make a difference! For those who missed it, the Round Table amicus in Niz-Chavez v. Barr was specifically mentioned during oral argument before the Court: https://www.c-span.org/video/?471191-1/niz-chavez-v-barr-attorney-general-oral-argument

I also note with great pride the following “charter members” of the “New Due Process Army” who were on the plaintiffs’ legal team:

Rachel McFarland, my former Georgetown Law student;
Simon Sandoval-Moshenberg, who appeared before me at the Arlington Immigration Court, and is an occasional contributor to “Courtside;
Mark Stevens, who appeared before me at the Arlington Immigration Court.

Well done, fearless fighters for due process!

Rachel McFarland
Legal Aid Justice Center
Charter Member, New Due Process Army

This disgraceful performance by the Solicitor General’s Office (once revered, now reviled) has become “the norm” under Trump. Francisco’s arguments are those of an attorney who didn’t do “due diligence,” but doesn’t expect the Court to know or care what really happens in Immigration Court. And, unfortunately, with the exception of Justice Sotomayor and perhaps Justice Kagan, that may well be a correct assumption. But that doesn’t make it any less of a powerful and disturbing indictment of our entire U.S. Justice system in the age of Trump.

Reality check: I routinely did 10-15, sometimes more, bond hearings at a Detained Master Calendar in less than one hour. I treated everyone fairly, applied the correct legal criteria, and set reasonable bonds (usually around $5,000) for everyone legally eligible. Almost all represented asylum seekers and withholding seekers eligible for bond who had filed complete and well-documented asylum or withholding applications were released on bond. About 99% showed up for their merits hearings.

I encouraged attorneys on both sides to file documents in advance, discuss the case with each other, and present a proposed agreed bond amount or a range of amounts to me whenever possible. Bond hearings were really important (freedom from unnecessary restraint is one of our most fundamental rights), but they weren’t “rocket science.” Bond hearings actually ran like clockwork.

Indeed, if the attorneys were “really on the ball,” and ICE managed to find and present all the detainees timely, I could probably do 10-15 bond cases in 30 minutes, and get them all right. My courtroom and my approach weren’t any different from that of my other then-colleagues at Arlington. In thirteen years on the bench, I set thousands of bonds and probably had no more than six appeals to the BIA from my bond decisions. I also reviewed many bond appeals at the BIA. (Although, most bond appeals to the BIA were “mooted” by the issuance of a final order in the detained case before the bond appeal was adjudicated.) Most took fewer than 15 minutes.

Indeed, my past experience suggests that a system led (not necessarily “run”) by competent judicial professionals and staffed with real judges with expertise in immigration, asylum, and human rights and unswervingly committed to due process and fundamental fairness could establish “best practices” that would drastically increase efficiency, cut (rather than mindlessly and exponentially expand) backlogs, without cutting out anyone’s rights. In other words, EOIR potentially could be a “model American judiciary,” as it actually was once envisioned, rather than the slimy mass of disastrous incompetence and the national embarrassment that it is today!

The idea that doing something as straightforward as a bond hearing would tie the system in knots is pure poppycock and a stunning insult to all Immigration Judges delivered by a Solicitor General who has never done a bond case in his life!

Yes the system is overwhelmingly backlogged and dysfunctional! But that has nothing to do with giving respondents due process bond hearings.

It has everything to do with unconstitutional and just plain stupid “politicization” and “weaponization” of the courts under gross incompetence and mismanagement by political hacks at the DOJ who have installed their equally unqualified toadies at EOIR. It also has to do with a disingenuous Solicitor General who advances a White Nationalist political agenda, rather than constitutional rights, fundamental fairness, rationality, and best practices. It has to do with a Supreme Court majority unwilling to take a stand for the legal rights and human dignity of the most vulnerable, and often most deserving, among us in the face of bullying and abuse by a corrupt, would-be authoritarian, fundamentally anti-American and anti-democracy regime.

It has to do with allowing a corrupt, nativist, invidiously-motivated regime to manipulate and intentionally misapply asylum and protection laws at the co-opted and captive DHS Asylum Office; thousands of “grantable” asylum cases are wrongfully and unnecessarily shuffled off to the Immigration Courts, thus artificially inflating backlogs and leading to more pressure to cut corners and dispense with due process.

It also paints an intentionally false and misleading picture that the problem is asylum applicants rather than the maliciously incompetent White Nationalists who have seized control of our system and acted to destroy years of structural development and accumulated institutional expertise.

Good Government matters! Maliciously incompetent Government threatens to destroy our nation! (Doubt that, just look at the totally inappropriate, entirely dishonest, response of the Trump kakistocracy to their overwhelming election defeat by Biden-Harris and the unwillingness of both the GOP and supporters to comply with democratic norms and operate in the real world of facts, rather than false narratives.)

Due process, fundamental fairness, equal justice, simple human decency, and Good Government won’t happen until we get the White Nationalist hacks out of the DOJ and replace the “clown show” at EOIR with qualified members of the New Due Process Army. Problem solvers, rather than problem creators; over-achievers, rather than screw-ups!

The incoming Biden-Harris Administration is left with a stark, yet simple, choice: oust the malicious incompetents and bring in the “competents” from the NDPA to fix the system; or become part of the problem and have the resulting mess forever sully your Administration.

The Obama Administration (sadly) chose the latter. President Elect Biden appears bold, confident, self-aware, and flexible enough to recognize past mistakes. But, recognition without reconstruction (action) is useless! Don’t ruminate — govern! Like your life depends on it!

And, by no means is EOIR the only part of DOJ the needs “big time” reform and a thorough shake up. We must have a Solicitor General committed to following the rules of legal ethics and common human decency and who will insist on her or his staff doing likewise.

The next Solicitor General must also have demonstrated expertise in asylum, immigration, civil rights, and human rights laws and be committed to expanding due process, equal justice, racial justice, and fundamental fairness throughout the Government bureaucracy and “pushing” the Supremes to adopt and endorse best, rather than worst, practices in these areas.

American Justice and our court systems are in “free fall.” This is no time for more “amateur night at the Bijou.”

And here are some thoughts for the future if we really want to achieve “Good Government” and equal justice for all:

Every future Supreme Court Justice must have served a minimum of two years as a U.S. Immigration Judge with an “asylum grant rate” that is at or exceeds the national average for the U.S. Immigration Courts;
Every future Solicitor General must have done a minimum of ten pro bono asylum cases in U.S. Immigration Court.

Due Process Forever! Clown Show (With Lives & Humanity On The Line) Never!

PWS

11-14-20

PURE BS 💩 — TRUMP’S “BIG LIE” ABOUT MIGRANT APPEARANCES FOR HEARINGS BOGUS AS $3 BILL 🤮👎🏻— Replacing DHS/EOIR With Rational, Qualified, Fact-Based Governance & Real Judiciary Could Bring Appearance Rate Close To 100%! — Two Items From ImmigrationProf Blog!

Professor Ingrid Eagly
UCLA Law
Blogger, ImmigrationProf Blog
Picture from ImmmigrationProf Blog

First, from ImmmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2020/10/op-ed-when-trump-says-immigrants-dont-show-up-for-court-hearings-he-couldnt-be-more-wrong.html

ImmigrationProf blogger Ingrid Eagly and Steven Shafer in an op/ed in the Los Angeles Times take on President Trump who “[l]ast week, during the final presidential campaign debate, President Trump renewed a claim he has often made: Migrants with pending court dates rarely show up for their hearings. In response to the charge by his Democratic challenger, former Vice President Joe Biden, that the administration’s treatment of would-be immigrants was inhumane, Trump told debate watchers that the number who`come back’ to immigration court is `less than 1%.’

The government’s data, however, tell a far different story.”

Check out the op/ed and the take down of President.

[Dean] K[evin] J[ohnson]

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

Also from ImmigrationProf Blog:

https://lawprofessors.typepad.com/immigration/2020/10/new-fact-sheet-from-vera-institute-of-justice-on-immigration-court-appearance-rates.html

A new fact sheet by Nina Siulc and Noelle Smart of the Vera Institute of Justice summarizes new evidence showing that most immigrants appear for their immigration court hearings. The report includes data from Vera’s Safety and Fairness for Everyone (SAFE) Initiative that provides free representation through a universal access model of representation. Vera researchers found that 98 percent of SAFE clients released from custody have continued to appear for their court hearings. Read the full report for additional information on related research, including Vera’s ongoing evaluation of the New York Immigrant Family Unity Project (NYIFUP).

I[ngrid] E[agly]

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

Thanks, Ingrid and Steven! Our “Round Table” has used your scholarship in amicus briefs to educate Federal Courts at all levels about the realities of Immigration Court.

It’s particularly critical in an era where the politicized and “ethically challenged” DOJ often puts forth largely fictionalization versions of their self-manufactured “immigration emergency” that is actually little more than the outcome of studied ignorance, White Nationalism, “gonzo” enforcement, and maliciously incompetent administration of the Federal immigration bureaucracy.

And, as I pointed out yesterday, “Gruppenfuhrer Miller” and his gang of neo-Nazi thugs have every intention of “doubling down” on their crimes against humanity and anti-democracy agenda if they retain power after the upcoming election. https://immigrationcourtside.com/2020/10/30/%f0%9f%91%b9%f0%9f%8e%83halloween-horror-%f0%9f%8f%b4%e2%80%8d%e2%98%a0%ef%b8%8f%e2%98%a0%ef%b8%8f%f0%9f%a4%ae%e2%9a%b0%ef%b8%8f%f0%9f%91%8e%f0%9f%8f%bbreichsreport-gruppenfuhrer-miller-reveals/

Attribution: Stephen Miller Monster by Peter Kuper, PoliticalCartoons.com

If we kick out the kakistocracy next week, we could put qualified “practical scholars” like Ingrid and others like her in charge and remake both DHS and the Immigration Courts to actually operate as required by Due Process while also fulfilling legitimate law-enforcement objectives. To state the obvious, neither of these objectives is being realized at present. It’s bad for America and for humanity.

For far too long, the wrong individuals, lacking the necessary expertise in immigration and human rights, and also lacking a firm commitment to equal justice under law, have been “in charge” of the Government’s immigration policy and legal apparatus and appointed to the Federal Courts, at all levels. That’s particularly true at the Supremes where only Justices Sotomayor and (some days) Kagan appear “up to the job.”

We will never end institutionalized racism, achieve equal justice for all, and realize the true human and economic potential of America until we bring our broken immigration and refugee systems and our failing Federal Judicial System into line with our Constitutional and national values. That process must start, but certainly will not end, with this election!

Due Process Forever!

PWS

10-31-20

🏴‍☠️☠️⚰️🤮👎🏻THE TRUMP REGIME & A CORRUPT SOLICITOR GENERAL HAVE CONDUCTED A WAR OF ATTRITION AGAINST AMERICAN LAWYERS ON THE FRONT LINES OF THE BATTLE TO SAVE DEMOCRACY — John Roberts & His GOP Buddies On The Supremes Have Aided, Abetted, & Encouraged It! — Constant Improper & Ethically Questionable Interference With Thoughtful, Legally Correct Lower Court Rulings Holding The Regime Accountable Have Demoralized The Profession’s Best & Bravest! — The Answer Is Better Judges For A Better America!

https://prospect.org/justice/loneliness-of-the-immigration-lawyer/

Marcia Brown Reports in American Prospect:

Susan Church, an immigration attorney in Boston, ended the first week of the Trump administration arm in arm with protesters at Logan Airport, resisting an executive order banning travel from several predominantly Muslim countries. But what happened the next day, away from the public chants of “Let them stay!” was more typical of what the life of the former chair of the New England chapter of the American Immigration Lawyers Association (AILA) was to become under the Trump administration.

Church and an associate filed an emergency lawsuit to secure the release of immigrants from Customs and Border Protection (CBP) custody. “I got a federal judge on the phone, you know, on a Saturday night at eight o’clock.” The judge told Church to go to court immediately. An hour later, the attorneys were in court defending their clients.

“For me, that was the canary in the coal mine about what the rest of my four years under the Trump administration was going to be like,” Church said. “It’s just a nonstop series of emergency litigation filed to try to rescue one or 10 or 100 or 1,000 people, depending on which issue it is.” Eventually, the speed of the work, and the physical and mental exhaustion it triggered, landed Church in the hospital. “I thought I was having a heart attack,” she said.

More from Marcia Brown

Church stayed with the fight to reunite parents with their children. She described the process of taking affidavits from clients, which require she learn every harrowing detail of a client’s trauma. In one instance, CBP ripped away one woman’s eight-year-old daughter at the border. “She had to comb her daughter’s hair and change her daughter’s clothes and put her on a bus and say goodbye to her,” Church said through tears. The two were separated for nearly two months, even after the mother was released from detention.

Church was able to reunite her client with her child, but the episode—like many, many other cases—weighs heavy on her shoulders. “I don’t think I’ll ever be quite the same person that I was beforehand,” she said.

Four years into this migration crisis, there’s a parallel migration under way—of immigration lawyers out of the profession. Survey data and interviews the Prospect conducted with more than a dozen lawyers around the country reveal the physical, mental, and financial toll endured by members of the bar. Given the extreme violence, trauma, and inhumanity their clients often endure, immigration attorneys don’t like to talk about how it affects them. But secondary trauma also leaves a mark, making it impossible to continue for some attorneys. Although numerical data is limited, there is evidence that some attorneys are cutting back on some types of cases, such as deportation defense work, or even leaving immigration law altogether. Removal defense casework is one of the most time-intensive, emotional, and exigent parts of lawyers’ loads. It’s also where the administration has aimed much of its cruelest policymaking, severely limiting lawyers’ efficacy.

Under the Trump administration, immigration law has changed not only profoundly, but also so rapidly that it’s hard for immigration attorneys to keep up. Susan Church—and several other attorneys interviewed for this article—described combating Trump’s policies as a game of whack-a-mole.

. . . .

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

Read Marcia’s full article at the link.

Forget all the right wing BS and the “originalist hoax!” This is about “democracy (or the destruction thereof) in action.”

Remember, all of these cosmic “immigration law changes” have taken place without a single piece of major legislation enacted by Congress! Indeed, the Trump regime’s ham-handed attempt to force it’s nativist agenda down the throats of the Congress as part of the “Dreamer fiasco” fell flat on its face in both Houses! But, the Supremes have both encouraged and enabled Trump (actually notorious white supremacist Stephen Miller) to rewrite the law through. “Executive fiat.” Totally inappropriate, not to mention glaringly unconstitutional.

The Supremes’ majority has time and again improperly sided with the unethical, immoral, and Constitutionally bankrupt “Dred Scottification” of migrants, particularly asylum seekers. It’s not much different from what has happened to African Americans, Latinos, and other minorities following the Civil War. But, this is supposed to be the 21st Century where we have put “Jim Crow” behind us. Obviously, we haven’t!

Failing to protect “officers of the court” (lawyers) and their clients from a scheme of abuses heaped upon them by a corrupt, biased, out of control, overtly racist Executive and his sycophants is a gross dereliction of duty by the Supremes. It’s basically like allowing, and even encouraging, the badgering of a witness during trial!

It’s painfully obvious that we have many of the wrong folks on the bench — from the Immigration Courts to the Supremes. Indeed, the nation and the world would be much better served if many more of those courageous lawyers who serve the immigrant community and human rights experts were on the Federal Bench at all levels.

Trump, Roberts, and the GOP judicial misfits have also shown us first-hand the profiles of individuals who should not be serving in judicial positions. Let them litigate their “originalist,” “unitary Executive,” and other “far out” righty philosophies as lawyers appearing before real judges —“practical scholars” who live in the 21st Century and are committed to problem solving rather than problem creating. As Joe Biden has noted, the entire judicial selection system and particularly the Supremes need a thoughtful re-examination and reform.

Never again should we have Justices like Amy Coney Barrett and Clarence Thomas performing highly inappropriate and unethical televised “campaign stunts” for an incumbent President during an ongoing election. Geez! What kind of “impartial jurists” are they?

Most first year law students could tell you that’s a “no-go!” Why have we “normalized” and “accepted” such obvious bias, misbehavior, and lack of sound judgment at the highest levels of our (not Trump’s or Mitch’s personal) Judiciary?

It’s not “Rocket Science!” The fundamental building blocks of our society are immigration, human rights, and equal justice! Any lawyer who who doesn’t embody those virtues and doesn’t publicly embrace them should not in the future be given a lifetime appointment as a Federal Judge — at any level!

We need better judges for a better America! We will never achieve constitutionally-required “equal justice for all” for African Americans, Latinos, or anyone else, nor can we reach our diverse nation’s full potential, if we don’t start “pushing back” against Roberts and the GOP’s right wing judicial oligarchy, their obtuse legal gibberish, and their anti-democratic “jurisprudence.”

It starts with voting to take back our country from the far right. But, that’s just the beginning of the changes needed if equal justice for all is to become a reality, rather than an ever unfulfilled promise, limited to certain privileged (predominantly White) groups within our society!

And, all of society owes a debt of gratitude to Ms. Church and other brave lawyers like her who represent the best our country has to offer and have actually suffered for standing up for the rule of law and the legal and human rights of the most vulnerable among us. In other words, standing up for all of our rights against a tyranny!

Compare that with the utterly dismal composition of the “Trump kakistocracy” and its “Dred Scottification” of “the other.”

Due Process Forever!

PWS

1–29-20

🦘🏴‍☠️☠️⚰️⚖️👎🏻🤮“KANGAROO KOURTS” MUST GO: NY City Bar Blasts Billy The Bigot Barr’s Deadly Immigration Court Farce, Calls For Article I! — “This step is now more crucial than ever, as ‘the many steps that the current administration has taken to politicize the court…have frayed the bare threads of justice that existed before to the point of a complete rupture, leaving not even the appearance of justice or due process of law.’”

Kangaroos
https://www.flickr.com/photos/rasputin243/
Creative Commons License

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

City Bar Report Highlights Threats to Independence of Immigration Court System — Calls for Creation of Independent Article I Court

October 21, 2020

The New York City Bar Association has released a report on recent immigration policy changes “to highlight its concerns about their impact on the independence of the immigration court system as well as the due process rights of those who pass through the immigration system.”

The “Report on the Independence of the Immigration Courts” responds to an “inherent conflict of interest” in housing a judicial adjudicatory body such as the Executive Office for Immigration Review within the Department of Justice, “a federal agency primarily charged with law enforcement,” which the City Bar says has been exacerbated by various actions that DOJ has taken that “prioritize the administration’s political agenda over fairness in the immigration court system.”

According to the report, the DOJ “has taken several steps to reorganize immigration courts and the [Board of Immigration Appeals] in a way that aligns them more closely with the [current] administration’s goals of enforcing harsher and more restrictive immigration policies.” These steps include hiring practices that place judges “with records of much higher than average asylum denial rates” on the BIA; implementation of restrictive performance metrics for immigration judges, made in the name of efficiency but that in actuality “ignores the underlying reasons for the backlog;” a practice of reassigning cases “on a large scale in a manner that undermines judicial independence;” and a campaign to stifle immigration judges who speak up, including “efforts to decertify the union of IJs in a manner that further undermines the independence of the immigration courts.”

The report describes how Attorneys General in recent years have made use of “a previously rarely-used procedural tool, self-certification…to rewrite immigration court policies through changes in substantive case law, rather than following more traditional pathways of issuing regulations and legislative recommendations, both of which, notably, are more lengthy and transparent processes.” Moreover, the report details the ways in which “basic procedural mechanisms and immigration court scheduling functions are being limited or curtailed in a manner that promotes political objectives over due process,” by pushing judges to rush decisions or by restricting access to the courts and to appellate review with administrative barriers.

As detailed in the report, these legal and structural changes in the immigration judicial system have “turn[ed] its corridors into a maze. Without transparency and accountability, due process is inevitably eroded. The lack of transparency also impedes meaningful attempts at reform.” New policies have restricted public access to information, forced asylum seekers to mount their applications from outside the U.S., and prevented meaningful oversight from independent observers. All of these measures, according to the report, “tip the scales towards more and faster deportations, at the expense of due process.”

The report concludes that “moving the immigration court system out of the DOJ and making it into an independent Article I court would safeguard immigration law from being rewritten by each administration, and would thus ensure due process for the immigrants appearing before the courts.” This step is now more crucial than ever, as “the many steps that the current administration has taken to politicize the court…have frayed the bare threads of justice that existed before to the point of a complete rupture, leaving not even the appearance of justice or due process of law.”

The report can be read here: https://bit.ly/31tFEpm

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

Many thanks to my friend and NDPA stalwart Elizabeth Gibson of the NY Legal Assistance Group for distributing this.

“[N]ot even the appearance of justice or due process of law.” Yup! “Courtside” has been saying it for a long time!

There is a dual problem here. The failure of the Immigration Courts is a national disgrace. But, an even bigger disgrace is the failure of the GOP Senate and the Article III Judiciary to end this farce that kills people and is destroying the integrity of the entire U.S. Justice system while promoting racism and unequal justice.

Vote ‘Em out, vote ‘Em out. We need to get a start on saving democracy and getting better judges for a better America — from the Immigration Courts to the Supremes!

PWS

1-22-20

SUPREMES TO REVIEW TRUMP ADMINISTRATION’S ILLEGAL RACIST/WHITE NATIONALIST POLICIES THAT THEY ALREADY HAVE ENABLED!

Adam Liptak
Journalist
NY Times
Slowking4, CC BY-SA 2.5, via Wikimedia Commons
Creative Commons License

https://www.nytimes.com/2020/10/19/us/supreme-court-trump-wall-asylum.html

By Adam Liptak

Oct. 19, 2020
Updated 12:02 p.m. ET

WASHINGTON — The Supreme Court on Monday agreed to review two major Trump administration immigration initiatives: a program that has forced at least 60,000 asylum seekers to wait in Mexico while their requests are heard and the diversion of $2.5 billion in Pentagon money to build a barrier on the southwestern border.

Lower courts blocked both measures. But the Supreme Court, in earlier orders, allowed them to remain in effect while appeals moved forward.

The arguments in the two cases will not be heard until after the November election. Should President Trump’s Democratic opponent, Joseph R. Biden Jr., win, his administration could take steps to make the cases moot.

In the case on asylum seekers, an appeals court in February blocked the program, known as Remain in Mexico, saying it was at odds with both federal law and international treaties and was causing “extreme and irreversible harm.”

. . . .

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

Read the rest of the article at the link.

The losers in these cases have already been determined: the innocent human lives destroyed, the rule of law, the Constitution, human decency, and the Supremes’ reputation. If the Supremes’ majority hadn’t already “pre-judged” these cases in the regime’s favor, then their unwarranted and ethically questionable “early intervention” in the process to allow the abuses of humanity, Congressional authority, and the public fisc to continue would be even more unconscionable.

Indeed, both of these cases are examples of a democracy in danger, a judicial system in decay, and a Supremes who have established themselves as part of the problem, not the solution.

Better Federal Judges for a Better America! It starts at the polls!

Due Process Forever!

PWS

10-19-20

🏴‍☠️☠️🤮⚰️👎CRIMES AGAINST HUMANITY, “PERPS” ON THE LOOSE! — DOJ Internal Report Shows How “Gonzo Apocalypto” Sessions, Rosenstein, Hamilton Conspired To Separate Migrant Kids In Violation Of 5th Amendment — When Will These Criminals Be Charged & Prosecuted Under 18 USC 242? — NY Times Reports!

Sessions in a cage — Jeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com
Republished under license

https://www.nytimes.com/2020/10/06/us/politics/family-separation-border-immigration-jeff-sessions-rod-rosenstein.html?campaign_id=9&emc=edit_nn_20201007&instance_id=22889&nl=the-morning&regi_id=119096355&section_index=2&section_name=the_latest_news&segment_id=40077&te=1&user_id=70724c8ee3c2ebb50a6ef32ab050a46b

‘We Need to Take Away Children,’ No Matter How Young, Justice Dept. Officials Said

Top department officials were “a driving force” behind President Trump’s child separation policy, a draft investigation report said.

By Michael D. Shear, Katie Benner and Michael S. Schmidt

Oct. 6, 2020

505

WASHINGTON — The five U.S. attorneys along the border with Mexico, including three appointed by President Trump, recoiled in May 2018 against an order to prosecute all undocumented immigrants even if it meant separating children from their parents. They told top Justice Department officials they were “deeply concerned” about the children’s welfare.

But the attorney general at the time, Jeff Sessions, made it clear what Mr. Trump wanted on a conference call later that afternoon, according to a two-year inquiry by the Justice Department’s inspector general into Mr. Trump’s “zero tolerance” family separation policy.

“We need to take away children,” Mr. Sessions told the prosecutors, according to participants’ notes. One added in shorthand: “If care about kids, don’t bring them in. Won’t give amnesty to people with kids.”

Rod J. Rosenstein, then the deputy attorney general, went even further in a second call about a week later, telling the five prosecutors that it did not matter how young the children were. He said that government lawyers should not have refused to prosecute two cases simply because the children were barely more than infants.

“Those two cases should not have been declined,” John Bash, the departing U.S. attorney in western Texas, wrote to his staff immediately after the call. Mr. Bash had declined the cases, but Mr. Rosenstein “instructed that, per the A.G.’s policy, we should NOT be categorically declining immigration prosecutions of adults in family units because of the age of a child.”

The Justice Department’s top officials were “a driving force” behind the policy that spurred the separation of thousands of families, many of them fleeing violence in Central America and seeking asylum in the United States, before Mr. Trump abandoned it amid global outrage, according to a draft report of the results of the investigation by Michael E. Horowitz, the department’s inspector general.

The separation of migrant children from their parents, sometimes for months, was at the heart of the Trump administration’s assault on immigration. But the fierce backlash when the administration struggled to reunite the children turned it into one of the biggest policy debacles of the president’s term.

Though Mr. Sessions sought to distance himself from the policy, allowing Mr. Trump and Homeland Security Department officials to largely be blamed, he and other top law enforcement officials understood that “zero tolerance” meant that migrant families would be separated and wanted that to happen because they believed it would deter future illegal immigration, Mr. Horowitz wrote.

The draft report, citing more than 45 interviews with key officials, emails and other documents, provides the most complete look at the discussions inside the Justice Department as the family separation policy was developed, pushed and ultimately carried out with little concern for children.

This article is based on a review of the 86-page draft report and interviews with three government officials who read it in recent months and described its conclusions and many of the details in it. The officials, who spoke on the condition of anonymity because they had not been authorized to discuss it publicly, cautioned that the final report could change.

Before publishing the findings of its investigations, the inspector general’s office typically provides draft copies to Justice Department leaders and others mentioned in the reports to ensure that they are accurate.

Mr. Horowitz had been preparing to release his report since late summer, according to a person familiar with the investigation, though the process allowing for responses from current and former department officials whose conduct is under scrutiny is likely to delay its release until after the presidential election.

Mr. Sessions refused to be interviewed, the report noted. Mr. Rosenstein, who is now a lawyer in private practice, defended himself in his interview with investigators in response to questioning about his role, according to two of the officials. Mr. Rosenstein’s former office submitted a 64-page response to the report.

“If any United States attorney ever charged a defendant they did not personally believe warranted prosecution, they violated their oath of office,” Mr. Rosenstein said in a statement. “I never ordered anyone to prosecute a case.”

. . . .

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

Read the complete article at the link.

U.S. District Judge Dana Sabraw concluded that intentional separation of families was unconstitutional — a clear violation of Fifth Amendment due process. https://www.nytimes.com/2018/06/26/us/politics/family-separations-congress-states.html

The Government did not seriously question the correctness of this finding!

Intentionally violating Constitutional rights (not to mention lying and attempting to cover it up) is clearly a violation of 18 USC 242.

Here’s the text of that section from the DOJ’s own website:

TITLE 18, U.S.C., SECTION 242

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

https://www.justice.gov/crt/deprivation-rights-under-color-law

Sure looks like an”open and shut” case for prosecution.

The irony: Families and their kids have been traumatized for life, perhaps even killed or disabled by the actions of these criminal conspirators; however, the “perps” remain at large.

Hamilton is on the public dole continuing to wreak-havoc on the Constitution, the rule of law, the Immigration Courts, and human decency at the corrupt Barr DOJ; Rosenstein works for a “fat cat” law firm hauling down a six figure salary while he avoids justice and accountability for his misdeeds; “Gonzo” had the absolute audacity to try to reinsert himself onto the public dole by running for the Senate from Alabama (thankfully, unsuccessfully, even though he previously held the seat for years and misused it as a public forum to spread his racist ideas, xenophobic venom, lies, false narratives, and unrelenting cruelty).

Where’s the “justice” in a system that punishes victims while letting “perps” prosper and go free?

Due Process Forever!

PWS

10-07-20

THE SADNESS OF PROPHECY WITHOUT POWER: Two Years Ago, I Gave A Speech Warning Of The Consequences Of “1939 Germany” — Now, We’re In “Germany 1938” With 1939 Just An Election Away! — Moscow Mitch, Lindsey The Toad, Texas Ted & The Rest Of The GOP Fellow Travelers & Cultists Would Be Right At Home With Franz van Papen!

This morning, Joe Hagan wrote in The Hive For Vanity Fair:

On the latest episode of Inside the Hive, former Republican strategist Stuart Stevens described the GOP under Donald Trump as a party of cynics, stooges, racists, and obsequious enablers whose profiles in cowardice bear an uncomfortable resemblance to 1930s Germany. “When I talk to Republican politicians, I hear Franz von Papen,” he says, referencing the German chancellor who convinced Germans that so-called radical leftists were a far greater threat than Adolf Hitler. “They all know that Trump is an idiot. They all know that he’s uniquely unqualified to be president. But they convinced themselves that he was a necessity.”

https://www.vanityfair.com/news/2020/09/ex-republican-strategist-surveys-the-wreckage-of-trumps-gop

All too disturbingly true. For those who didn‘t notice, the GOP now has no platform. None! They are nakedly running on lies, racism, fear, White Supremacy, hate, misogyny, xenophobia, intentionally false narratives, anti-science, anti-intellectualism, and corruption. Sound familiar? It should to those of us who studied Modern European History and World War II.

Two years ago, before the International Association of Refugee & Migration Judges meeting at Georgetown Law, fresh from a visit to the Holocaust Museum in DC, I gave a speech warning of a return to “Eve of the Holocaust thinking.”

It was, of course, “extreme hubris and total self-delusion” to think anyone was paying attention. Nevertheless, it doesn’t lessen my “extreme sadness” of watching the disintegration of our nation, without being able to prevent it.

Here’s a “reprint” of that speech from the Summer of 2018:

JUST SAY NO TO 1939: HOW JUDGES CAN SAVE LIVES, UPHOLD THE CONVENTION, AND MAINTAIN INTEGRITY IN THE AGE OF OVERT GOVERNMENTAL BIAS TOWARD REFUGEES AND ASYLUM SEEKERS

IMPLICIT BIAS IARMJ 08-03-18

JUST SAY NO TO 1939: HOW JUDGES CAN SAVE LIVES, UPHOLD THE CONVENTION, AND MAINTAIN INTEGRITY IN THE AGE OF OVERT GOVERNMENTAL BIAS TOWARD REFUGEES AND ASYLUM SEEKERS

By Paul Wickham Schmidt,

U.S. Immigration Judge, Retired

Americas Conference

International Association of Refugee & Migration Judges

Georgetown Law

August 4, 2018

INTRODUCTION

Good afternoon. I am pleased to be here. Some twenty years ago, along with then Chief U.S. Immigration Judge Michael J. Creppy, I helped found this Association, in Warsaw. I believe that I’m the only “survivor” of that illustrious group of “Original Charter Signers” present today. And, whoever now has possession of that sacred Charter can attest that my signature today remains exactly as it was then, boldly scrawling over those of my colleagues and the last paragraph of the document.

As the Americas’ Chapter Vice President, welcome and thank you for coming, supporting, and contributing to our organization and this great conference. I also welcome you to the beautiful campus of Georgetown Law where I am on the adjunct faculty.

I thank Dean Treanor; my long-time friend and colleague Professor Andy Schoenholtz, and all the other wonderful members of our Georgetown family; the IARMJ; Associate Director Jennifer Higgins, Dimple Dhabalia, and the rest of their team at USCIS; and, of course, our Americas President Justice Russell Zinn and the amazing Ross Patee from the Canadian Immigration and Refugee Board who have been so supportive and worked so hard to make this conference a success.

I recognize that this is the coveted “immediately after lunch slot” when folks might rather be taking a nap. But, as the American country singer Toby Keith would say “It’s me, baby, with you wake up call!” In other words, I’m going to give you a glimpse into the “parallel universe” being operted in the United States.

In the past, at this point I would give my comprehensive disclaimer. Now that I’m retired, I can skip that part. But, I do want to “hold harmless” both the Association and Georgetown for my remarks. The views I express this afternoon are mine, and mine alone. I’m going to tell you exactly what I think. No “party line,” no “bureaucratic doublespeak,” so “sugar coating.” Just the truth, the whole truth, and nothing but the truth!

I have good news and bad news. The good news is that we don’t have an implicit bias problem in the U.S. asylum adjudication system. The bad news: The bias is now, unfortunately, quite explicit.

Here’s a quote about refugees: “I guarantee you they are bad. They are not going to be wonderful people who go on to work for the local milk people.”

Here’s another one: “We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order.”

Here’s another referencing the presence of an estimated 11 million undocumented residents of the U.S.: “Over the last 30 years, there have been many reasons for this failure. I’d like to talk about just one—the fraud and abuse in our asylum system.”

Here’s yet another: “We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence, therefore they are entitled to enter the United States. Well, that’s obviously false but some judges have gone along with that.”

You might think that these anti-asylum, and in many cases anti-Latino, anti-female, anti-child, anti-asylum seeker, de-humanizing statements were made by members of some fringe, xenophobic group. But no, the first two are from our President; the second two are from our Attorney General.

These are the very officials who should be insuring that the life-saving humanitarian protection purposes of the Refugee Act of 1980 and the Convention Against Torture are fully carried out and that our country fully complies with the letter and spirit of the 1951 Convention Relating to the Status of Refugees which is binding on our country under the 1967 Protocol.

Let me read you a quote that I published yesterday on my blog, immigrationcourtside.com, from a young civil servant resigning their position with “EOIR,” otherwise known as our Immigration Court system, or, alternatively, as the sad little donkey from Winnie the Pooh.

I was born and raised in a country that bears an indelible and shameful scar—the birth and spreading of fascism. An ideology that, through its different permutations, almost brought the world as we know it to an end. Sadly, history has taught me that good countries do bad things—sometimes indescribably atrocious things. So, I have very little tolerance for authoritarianism, extremism, and unilateral and undemocratic usurpations of Constitutional rights. I believe that DOJ-EOIR’s plan to implement individual annual numerical performance measures—i.e., quotas—on Immigration Judges violates the Due Process clause of the Fifth Amendment of the United States Constitution, and the DOJ’s own mission to “ensure the fair and impartial administration of justice.” This is not the job I signed up for. I strongly believe in the positive value of government, and that the legitimacy of our agency—and any other governmental institution for that matter—is given by “the People’s” belief in its integrity, fairness, and commitment to serve “the People.” But when the government, with its unparalleled might and coercive force, infringes on constitutionally enshrined rights, I only have two choices: (1) to become complicitous in what I believe is a flagrant constitutional violation, or (2) to resign and to hold the government accountable as a private citizen. I choose to resign because I cannot in good conscience continue serving my country within EOIR.

Strong words, my friends. But, words that are absolutely indicative of the travesty of justice unfolding daily in the U.S. Immigration Courts, particularly with respect to women, children, and other asylum seekers –- the most vulnerable among us. Indeed, the conspicuous absence from this conference of anyone currently serving as a judge in the U.S. Immigration Courts tells you all you really need to know about what’s happening in today’s U.S. justice system.

Today, as we meet to thoughtfully discuss how to save refugees, the reality is that U.S. Government officials are working feverishly at the White House and the U.S. Department of Justice on plans to end the U.S. refugee and asylum programs as we know them and to reduce U.S. legal immigration to about “zero.”

Sadly, the U.S. is not alone in these high-level attacks on the very foundations of our Convention and international protection. National leaders in Europe and other so-called “liberal democracies” — who appear to have erased the forces and circumstances that led to World War II and its aftermath from their collective memory banks — have made similar statements deriding the influence of immigrants and the arrival of desperate asylum seekers. In short, here and elsewhere our Convention and our entire international protection system are under attacks unprecedented during my career of more than four decades in the area of immigration and refugee protection.

As a result, judges and adjudicators throughout the world, like you, are under extreme pressure to narrow interpretations, expedite hearings, view asylum seekers in a negative manner, and produce more denials of protection.

So, how do we as adjudicators remain loyal to the principles of our Convention and retain our own integrity under such pressures? And, more to the point, what can I, as someone no longer involved in the day-to-day fray, contribute to you and this conference?

Of course, you could always do what I did — retire and fulfill a longtime dream of becoming an internet “gonzo journalist.” But, I recognize that not everyone is in a position to do that.

Moreover, if all the “good guys” who believe in our Convention, human rights, human dignity, and fair process leave the scene, who will be left to vindicate the rights of refugees and asylum seekers to protection? Certainly not the political folks who are nominally in charge of the protection system in the US and elsewhere.

So, this afternoon, I’m returning to that which brought this Association together two decades ago in Warsaw: our united commitment to the letter and spirit of the 1951 Convention; additionally, our commitment to fairness, education, international approaches, group problem solving, promoting best practices, and mutual support.

In the balance of my presentation, I’m going to tell you four things, taken from our Convention, that I hope will help you survive, prosper, and advance the aims of our Convention in an age of nationalist, anti-refugee, anti-asylum, anti-immigrant rhetoric.

BODY

Protect, Don’t Reject

First, “protect, don’t reject.” Our noble Convention was inspired by the horrors of World War II and its aftermath. Many of you will have a chance to see this first hand at the Holocaust Museum.

Our Convention is a solemn commitment not to repeat disgraceful incidents such as the vessel St. Louis, which has also been memorialized in that Museum. For those of you who don’t know, in 1939 just prior to the outbreak of World War II a ship of German Jewish refugees unsuccessfully sought refuge in Cuba, the United States, and Canada, only to be rejected for some of the same spurious and racist reasons we now hear on a regular basis used to describe, deride, and de-humanize refugees. As a result, they were forced to return to Europe on the eve of World War II, where hundreds who should and could have been saved instead perished in the Holocaust that followed.

Since the beginning of our Convention, the UNHCR has urged signatory countries to implement and carry out “a generous asylum policy!” Beyond that, paragraphs 26 and 27 of the UN Handbookreiterate “Recommendation E” of the Convention delegates. This is the hope that Convention refugee protections will be extended to those in flight who might not fully satisfy all of the technical requirements of the “refugee” definition.

Therefore, I call on each of you to be constantly looking for legitimate ways in which to extend, rather than restrict, the life-saving protections offered by our Convention.

Give The “Benefit Of The Doubt”

Second, “give the benefit of the doubt.” Throughout our Convention, there is a consistent theme of recognizing the difficult, often desperate, situation of refugees and asylum seekers and attendant difficulties in proof, recollection, and presentation of claims. Therefore, our Convention exhorts us in at least four separate paragraphs, to give the applicant “the benefit of the doubt” in assessing and adjudicating claims.

As a sitting judge, I found that this, along with the intentionally generous “well-founded fear” standard, enunciated in the “refugee” definition and reinforced in 1987 by the U.S. Supreme Court and early decisions of our Board of Immigration Appeals implementing the Supreme Court’s directive, often tipped the balance in favor of asylum seekers in “close cases.”

Don’t Blame The Victims

Third, “don’t blame the victims.” The purpose of our Convention is to protect victims of persecution, not to blame them for all societal ills, real and fabricated, that face a receiving signatory country. Too much of today’s heated rhetoric characterizes legitimate asylum seekers and their families as threats to the security, welfare, heath, and stability of some of the richest and most powerful countries in the world, based on scant to non-existent evidence and xenophobic myths.

In my experience, nobody really wants to be a refugee. Almost everyone would prefer living a peaceful, productive stable life in their country of nationality. But, for reasons beyond the refugee’s control, that is not always possible.

Yes, there are some instances of asylum fraud. But, my experience has been that our DHS does an excellent job of ferreting out, prosecuting, and taking down the major fraud operations. And, they seldom, if ever, involve the types of claims we’re now seeing at our Southern Border.

I’m also aware that receiving significant numbers of refugee claimants over a relatively short period of time can place burdens on receiving countries. But, the answer certainly is not to blame the desperate individuals fleeing for their lives and their often pro bono advocates!

The answer set forth in our Convention is for signatory countries to work together and with the UNHCR to address the issues that are causing refugee flows and to cooperate in distributing refugee populations and in achieving generous uniform interpretations of the Convention to discourage “forum shopping.” Clearly, cranking up denials, using inhumane and unnecessary detention, stirring up xenophobic fervor, and limiting or blocking proper access to the refugee and asylum adjudication system are neither appropriate nor effective solutions under our Convention.

Give Detailed, Well-Reasoned, Individualized Decisions

Fourth, and finally, “give detailed, well-reasoned, individualized decisions.” These are the types of decisions encouraged by our Convention and to promote which our Association was formed. Avoid stereotypes and generalities based on national origin; avoid personal judgments on the decision to flee or seek asylum; avoid political statements; be able to explain your decision in legally sufficient, yet plainly understandable terms to the applicant, and where necessary, to the national government.

Most of all, treat refugee and asylum applicants with impartiality and the uniform respect, sensitivity, and fairness to which each is entitled, regardless of whether or not their claim under our Convention succeeds.

CONCLUSION

In conclusion, I fully recognize that times are tough in the “refugee world.” Indeed, as I tell my Georgetown students, each morning when I wake up, I’m thankful for two things: first, that I woke up, never a given at my age; second, that I’m not a refugee.

But, I submit that tough times are exactly when great, independent, and courageous judging and adjudication are necessary to protect both applicants from harm and governments from doing unwise and sometimes illegal and immoral things that they will later regret.

I have offered you four fairly straightforward ways in which adhering to the spirit of our Convention can help you, as judges and adjudicators, retain integrity while complying with the law: protect, don’t reject; give the benefit of the doubt; don’t blame the victims; and give detailed, well-reasoned, individualized decisions.

Hopefully, these suggestions will also insure that all of you will still be around and employed for our next conference.

Thanks for listening, have a great rest of our conference, and do great things! May Due Process and the spirit of our noble Convention and our great organization guide you every day in your work and in your personal life! Due Process forever!

(08-06-18)

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

In addition to the Moscow Mitches, Grahams, and other corrupt GOP pols who have sold out our nation, the disgraceful performance of Chief Justice John Roberts and his GOP colleagues in the face of the regime’s overtly racist, White Nationalist, deadly abuses of asylum seekers in violation of the Due Process and Equal Protection clauses of the Constitution, the Refugee Act of 1980 (b/t/w, ignored and abrogated, but never repealed), the Geneva Refugee Convention and 1967 Protocol, and the Convention Against Torture will fit well within the “Judicial Aid and Complicity Section” of the future “Museum Honoring Victims of Crimes Against Humanity Committed By The Trump Regime.”

The Constitution is remarkably clear: All “persons” within the jurisdiction of the U.S. are entitled to due process and equal protection under our laws. Unquestionably, refugees seeking legal protection within our court system, some actually being detained, deported, or forced to relocate by our Government, are within our jurisdiction. An L1 law student knows that! It’s not rocket science!

So, the only way that the Supremes’ majority could abrogate legally required protections is through intentionally disingenuous “legal mumbo jumbo and gobbledygook” and ridiculous “legal fictions” that, at heart, convert refugees and migrants of color into “non-persons” under the law. Similar to their approach to the voting rights of African Americans and Latinos.

That’s how you abandon your duties to your fellow human beings and tank on your Constitutional oaths. Sounds pretty overtly racist to me. And, I must say, it sounds pretty racist to most lawyers who understand immigration and human rights laws.

Too bad and too late for those deserving justice and protection, men, women, children, members of the LGBTQ community, religious and political activists, most highly vulnerable and semi-defenseless in the face of lawless tyranny, whose lives have been sacrificed or ruined forever by lousy, ideological, tone-deaf, anti-human-dignity judging.

It’s too late for them. But, it’s not too late for America to turn away from 1939 and advance to a better 2021 with a commitment to making “equal justice for all” under the law a reality rather than a cruel, unfulfilled, bogus promise! That would at least honor the memory of the dead, tortured, raped, broken, mutilated, and ruined who have been unnecessarily sacrificed by the GOP and their complicit judges who failed in their duties to our Constitution and to humanity.

We can’t change yesterday. But, we can stop repeating its mistakes!

PWS

09-11-20

⭐️⭐️⭐️⭐️⭐️⚖️🗽🇺🇸FORMER DEPUTY AG DON AYER, JUDGE MIMI TSANKOV AMONG “HEADLINERS” AT TIMELY UPCOMING NY CITY BAR ASSN. EVENT: “Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption” — Register Now, Right Here!

Honorable Mimi Tsankov
U.S. Immigration Judge
Eastern Region Vice President
National Association of Immigration Judges (“NAIJ”)

Elizabeth Gibson, New Due Process Army Superstar & Editor Publisher Of The Renowned Weekly “Gibson Report” reports:

Hi Everyone,

I want to flag an upcoming NYCBA webinar series on Preserving the Rule of Law in an Age of Disruption. Full disclosure, I’m on the taskforce organizing the event, but I highly recommend it. The speaker list is top-notch.

For immigration practitioners in particular, Session 4 will feature IJ Tsankov, representing NAIJ, and the session will discuss “deteriorations of voting rights, asylum rights and incarceration policies, the militarization of policing and the disparate treatment of minorities by police and prosecutors, and the use of libel litigation to inflict costs on individuals and media outlets who challenge or criticize officeholders.”

It’s free for NYCBA members, $15 for other lawyers, and free for the general public (including law students and fellows). Please circulate widely.

Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption
Session 1: Threats to the Rule of Law in America: A Survey

Tuesday, September 15 | 1:00 p.m. – 4:00 p.m.
Session 2: Checks, Balances and Oversight — the Distribution of Governmental Power and Information

Tuesday, September 22 | 1:00 p.m. – 4:00 p.m.

Session 3: Interference with Judicial Independence and Local Law Enforcement

Thursday, October 8 | 11:00 a.m. -2:00 p.m.
Session 4: Threats to Individual and Societal Rights

Wednesday, October 21 | 1:00 p.m. – 4:00 p.m.
Session 5: Rebuilding the Rule of Law in America: What Can and Should the Legal Profession, Individual Lawyers and Citizens Do?

Wednesday, November 18 | 1:00 p.m. – 4:00 p.m.

FOR IMMEDIATE RELEASE

Contact: Eric Friedman
efriedman@nycbar.org

Eli Cohen
ecohen@nycbar.org

New York City Bar Association Announces Five-Part Forum on the Rule of Law

Fall Series to Feature Former Officials, Judges, Scholars and More

New York, August 10, 2020 – The New York City Bar Association has announced a five-part Forum on the Rule of Law, to take place this fall beginning on September 15. (Full schedule and speaker list below.)

The “Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption” will feature panels of respected experts from across the political spectrum – including former government officials, judges and scholars – who will identify current challenges and threats to the rule of law in America, discuss why they matter and propose remedies. Participants will include Nicole Austin-Hillery, Donald Ayer, Mitchell Bernard, Preet Bharara, Robert Cusumano, Hon. Mary McGowan Davis, John Feerick, Charles Fried, Daniel Goldman, Harold Hongju Koh, Errol Louis, Margaret Colgate Love, David McCraw, Barbara McQuade, Dennis Parker, Myrna Perez, Hon. Jed Rakoff; Anthony Romero, Cass Sunstein, Hon. Mimi Tsankov, Joyce Vance, and Cecilia Wang. City Bar President Sheila S. Boston will introduce the series, and Professor Timothy Snyder of Yale University, author of On Tyranny and The Road to Unfreedom, will kick off the opening session with a survey of the “Threats to the Rule of Law in America.”

All sessions will be carried live on Zoom and will be open to the public free of charge ($15 for non-member lawyers):

Session 1: Threats to the Rule of Law in America: A Survey

(Sept 15, 1:00 p.m. – 4:00 p.m.)

Session 2: Checks, Balances and Oversight — the Distribution of Governmental Power and Information

(Sept 22, 1:00 p.m. – 4:00 p.m.)

Session 3: Interference with Judicial Independence and Local Law Enforcement

(October 8, 11:00 a.m. – 2:00 p.m.)

Session 4: Threats to Individual and Societal Rights

(Oct 21, 1:00 p.m. – 4:00 p.m.)

Session 5: Rebuilding the Rule of Law in America: What Can and Should the Legal Profession, Individual Lawyers and Citizens Do?

(Nov 18, 1:00 p.m. – 4:00 p.m.)

“The rule of law is the foundation of our democracy,” said City Bar President Sheila S. Boston. “It’s at the core of our Constitution that sets forth the powers of our government and the rights of our people, and the supremacy of the law in our nation ensures that no one can claim to be above it. The rule of law is what provides for transparency and equity in our society, enables us to confront challenges, foreign or domestic, and protects our security and welfare so that the right to life, liberty and the pursuit of happiness exists for us all.”

The forum is produced by the City Bar’s Task Force on the Rule of Law, which, along with other relevant City Bar Committees, has issued a series of reports and statements relating to inappropriate actions by the Attorney General in a broad range of areas, Presidential dismissal of Inspectors General and interference in criminal and military trials, inappropriate action by the Secretary of State to undermine the International Criminal Court, the need for legislative reform of Presidential emergency powers, a proposal to replace Guantanamo’s military commissions with an Article III court and the improper use of federal security forces to clear peaceful demonstrators in Washington, D.C. and displace local law enforcement in Portland.

“While we hope these individual reports have been useful to our members and the public, they illustrate a broader theme – threats to the Rule of Law itself – that we believe has not received sufficient in-depth attention in either the public or the legal profession,” said Stephen L. Kass, Chair of the Task Force. “Our goal is to create an ongoing and thought-provoking discussion among the legal profession, the academic community and the public about what can and should be done to assure that America remains a nation governed by law even in a time of crisis – or especially in a time of crisis – and to identify the actions necessary for our justice system to promote the impartial, equitable and effective enforcement of those laws.”

In addition to the work of the Task Force on the Rule of Law, the City Bar has been speaking out on rule-of-law issues for decades through its committees on Federal Courts, Government Ethics, Immigration and Nationality Law, and its Task Force on National Security and Rule of Law (the predecessor of the Task Force on the Rule of Law).

Full Schedule:

Rule of Law Forum – Preserving the Rule of Law in an Age of Disruption

Session 1: Threats to the Rule of Law in America: A Survey

Tuesday, September 15 | 1:00 p.m. – 4:00 p.m.

This session will broadly survey recent developments that implicate, and may signal rejection of, traditional Constitutional roles and customary norms of behavior within the national government and each of its branches. Session 1 will also take an inventory of recent challenges to laws and norms involving the impartial administration of justice by law enforcement, prosecutors, the courts and the Executive, as well as threats to individual and societal rights generally and to marginalized communities in particular. Individual speakers will focus on constitutional checks and balances, politicization of the administration of justice, dramatic changes in how governmental agencies ascertain facts and make decisions, and trends in derogation of individual and societal rights, including voting rights and the promise of impartial justice for all.

Introduction: Sheila S. Boston, President, New York City Bar Association

Keynote Speaker: Timothy Snyder, Professor of History, Yale University; author, Tyranny and The Road to Unfreedom

Dennis Parker, Director, National Center for Law and Economic Justice

Cass Sunstein, Professor of Law, Harvard Law School

Joyce Vance, Professor of Law, University of Alabama School of Law; former U.S. Attorney for the Northern District of Alabama

Session 2: Checks, Balances and Oversight – the Distribution of Governmental Power and Information

Tuesday, September 22 | 1:00 p.m. – 4:00 p.m.

This session will focus in depth on the rule of law challenges arising out of disruption of traditional “checks and balances” among the branches of the government, the ideas of “independence” and “oversight” among the agencies of government, and the ability of the Congress or Inspectors General and “whistleblowers” to perform their functions in the face of Executive secrecy, limits on Congressional subpoena power, governmental job insecurity and public statements critical of the bureaucratic levers of government.

Keynote Speaker: Donald Ayer, Partner at Jones Day; former U.S. Deputy Attorney General under President George H.W. Bush; former Principal Deputy Solicitor General under Solicitor General Charles Fried.

Moderator: Errol Louis, CNN Political Analyst; Host of NY1’s “Inside City Hall”

Mitchell Bernard, Executive Director, National Resources Defense Council

Preet Bharara, former U .S. Attorney for the Southern District of New York

Daniel Goldman, Counsel to the House Intelligence Committee

Barbara McQuade, Professor of Law, University of Michigan Law School; former U.S. Attorney for the Eastern District of Michigan

Session 3: Interference with Judicial Independence and Local Law Enforcement
Thursday, October 8 | 11:00 a.m. -2:00 p.m.)

This session will explore the effects of Executive disruption of several distinct justice systems – civil and criminal courts, the immigration court system and local law enforcement. Speakers will explore the implications of Executive interference with investigations and trials, castigation of individual judges and jurors, the deployment of military and/or federal forces in connection with local law enforcement and the issuance of pardons without traditional due diligence for civilian and military crimes.

Keynote Speaker: Charles Fried, Professor of Law at Harvard Law School; former U.S. Solicitor General under President Ronald Reagan

Margaret Colgate Love, Executive Director, Collateral Consequences Resource Center; former U.S. Pardon Attorney

Harold Hongju Koh, Sterling Professor of International Law and former Dean, Yale Law School; former Legal Adviser of the U.S. Department of State

Hon. Jed Rakoff, Senior U.S. District Court Judge, Southern District of New York

Session 4: Threats to Individual and Societal Rights

Wednesday, October 21 | 1:00 p.m. – 4:00 p.m.

This session will survey recent trends that question the role of law and courts in the pursuit of a just and democratic society. Is adherence to the rule of law deteriorating and, if so, is that because of limitations on the ability (or inclination) of citizens and courts to prevent violations of individual rights or, more broadly, the rules governing a functioning democracy? Speakers will discuss the most salient of the deteriorations of voting rights, asylum rights and incarceration policies, the militarization of policing and the disparate treatment of minorities by police and prosecutors, and the use of libel litigation to inflict costs on individuals and media outlets who challenge or criticize officeholders.

Keynote Speaker: Anthony Romero, Executive Director, American Civil Liberties Union

Nicole Austin-Hillary, Executive Director, Human Rights Watch U.S. Program

David McCraw, Senior Vice-President and Deputy General Counsel, New York Times

Myrna Perez, Director, Voting Rights and Elections Program, Brennan Center for Justice

Hon. Mimi Tsankov, Vice President, Eastern Region, National Association of Immigration Judges

Cecilia Wang, Deputy Legal Director and Director of the Center for Democracy, American Civil Liberties Union

Session 5: Rebuilding the Rule of Law in America: What Can and Should the Legal Profession, Individual Lawyers and Citizens Do?

Wednesday, November 18 | 1:00 p.m. – 4:00 p.m.

This session will explore the role of individual lawyers, professional organizations and citizens in protecting the rule of law as a guiding principle in American public life and in restoring the norms and standards by which we may remain a society governed by transparent rules equitably applied. Speakers will discuss the history of efforts by the organized bar to support and sustain impartial justice, the scope of pro bono work by the private bar and the private sector, the ethical standards guiding government officials and the education of the public about the necessity of acting to protect a fair and equitable rule of law. Speakers will draw on their own experience to offer lessons for members of the bar on building on one’s own background and training to promote the rule of law domestically and abroad.

Keynote Speaker: John Feerick, Fordham Law Dean Emeritus and Norris Professor of Law, Fordham Law School

Robert Cusumano, founder and CEO, Legal Horizons Foundation; former Corporate General Counsel

Harold Hongju Koh, Sterling Professor of International Law and former Dean, Yale Law School; former Legal Adviser of the U.S. Department of State

Hon. Mary McGowan Davis, Former New York Supreme Court Justice; Member, UN Committees of Independent Experts in International Humanitarian and Human Rights Law

Interested media please email efriedman@nycbar.org for access to this event.

About the Association

The mission of the New York City Bar Association, which was founded in 1870 and has 25,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world. www.nycbar.org

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☠️⚠️‼️DISCLAIMER: Of course, the following are just my views, not the views of anyone on the All-Star cast of speakers at this upcoming event, the NYCBA, or anyone else of any importance whatsoever!

Don is my former partner at Jones Day and a long time colleague going back to our days together at a “Better DOJ.” Mimi and I have been friends and colleagues for years in the NAIJ, the FBA, and on the Immigration Court.

Elizabeth is my former student at Georgetown Law, a former intern at the Arlington Immigration Court, a former Judicial Law Clerk at the NY Immigration Court, and a “charter member” and leader of the “New Due Process Army” (“NDPA”). She’s still early in her career, but already establishing herself as one of the “best legal minds” in the business — in immigration, human rights, Constitutional Law, or any any other field. Elizabeth and others like her are indeed “the future of American law and the nation!”

In nearly five decades as a lawyer in the public, private, and academic sectors, I have never seen such a concerted attack on the rule of law and the institutional underpinnings of American democracy as that being carried our by the Trump regime.

Perhaps most shocking and disappointing to me has been the ineffective “pushback” and often outright complicity or encouragement offered to “the scofflaw destroyers” by our supposedly independent Article III Judiciary.

Let’s cut to the chase! The only real role of the Federal Judiciary is to protect our nation from tyranny and overreach from the the other two branches of Government. That’s it in a nutshell! If they can’t do that, they really have no purpose that couldn’t be fulfilled by the State and Local Courts.

In this role, the Article IIIs have failed — miserably! With a “disappearing Congress,” the Article IIIs, starting with the lousy performance of the Supremes, overall have been unwilling effectively to stand up to Trump’s corrupt, overtly racist, divisive, and illegal White Nationalist agenda. An agenda that is destroying our society and mocking the Constitutional guarantees of “equal justice for all.”

I call the regime’s strategy “Dred Scottification” or “dehumanization of the other before the law.” It targets people of color, particularly immigrants and asylum seekers.

Outrageously, rather than emphatically rejecting this clearly unconstitutional “throwback to Jim Crow,” a Supremes’ majority has embraced and furthered it: from the “Muslim Bam;” to illegally letting legitimate asylum applicants rot, be abused, and die in Mexico; to allowing a deadly irrational, racist attack on the health and public benefits of the legal immigrant community; to turning their back on refugees who are are potentially being sentenced to death without any recognizable legal process; to allowing GOP politicos to blatantly suppress Black and Hispanic voting rights for corrupt political gain, the “tone-deaf” and spineless Supremes’ majority has misused its life tenure to clearly install itself on the wrong side of history — with racists and human rights abusers of the past!

We see it playing out every day; it will continue to get worse if we don’t get “regime change.” We need a functional Congress, without Mitch McConnell’s poisonous intransigence, and better Federal Judges, at all levels. Judges who actually believe in equal justice for all under our Constitution and have the guts and intellectual integrity to stand up for it — whether the issue is voting rights, criminal justice, rights of asylum seekers, immigrants’ rights, effective Congressional oversight of the Executive, or putting an end to the “due process parody” going on daily in the “weaponized and politicized” Immigration “Courts” (that are not “courts” at all by any commonly understood meaning of the word).

For example, as American justice implodes, AG Billy Barr and several GOP Supremes have decided that the “real enemy” is “nationwide injunctions” by US District Court Judges. This is nothing short of “legal absurdism” being spouted by folks who are supposed to be functioning as “responsible public officials!”

As those who live in the “real world” of the law, peopled by actual human beings, nationwide injunctions are one of the few effective tools that defenders of our Constitution (many serving pro bono) have to stop life-threatening illegal attacks by the regime on individual rights, particularly in the field of immigration and human rights. Otherwise, the regime’s “violate the law at will and fill the courts with frivolous litigation strategy,” adopted by the DOJ and furthered by the Supremes, would simply bury and overwhelm the defenders of individual rights and the rule of law.

Without nationwide injunctions against illegal Executive actions, by the time the regime’s legal transgressions worked their way to the Supremes, most of the bodies would be dead and buried. ⚰️⚰️Indeed, we see the results of this illegal abrogation of U.S. asylum law and international protections, sans legislation or legitimate rationale, which daily returns legitimate refugees, many women and children, to harm, torture, or death, without any process whatsoever, let alone the “due process” required by the Constitution. ☠️🤮⚰️🏴‍☠️

You might ask yourself what purpose is served by a Supremes’ majority that has encouraged and facilitated this type of deadly “outlaw behavior” that will stain our nation’s soul and reputation forever in the eyes of history? It’s not “rocket science” — really just Con Law 101, common sense, and human decency, which seem to have fled the scene at our highest Court.

The complete breakdown of professional and ethical standards within the Executive, particularly the DOJ, that used to govern positions taken, arguments made, and evidence submitted to Federal Courts also is shocking to those of us who once served in the DOJ. Likewise, the overall failure of the Federal Courts to enforce even minimal standards of professionalism and the duty of “candor to a tribunal” for Government lawyers is surprising and disheartening.

Yes, Federal Judges sometimes “pan” or “wring their hands” about the bogus positions, disingenuous reasoning, and contemptuous actions of agencies and Government lawyers. But, they seldom, if ever, take meaningful corrective action. For Pete’s sake, both “Wolfman” and “Cooch Cooch” have been held by a Federal Judge to have been illegally appointed to their acting positions! Yet every day, these “illegals” continue to mete out injustice, and racist-driven policies on largely defenseless migrants . What kind of judiciary allows this kind of “in your face nonsense” to continue unabated?

This judicial fecklessness hasn’t been lost on folks like Billy Barr, Chad “Wolfman” Wolf, Stephen Miller, “Cooch Cooch,” Mark Morgan, Noel Francisco, and other Trump sycophants who continue to flood the Federal Courts with false narratives, bogus positions, and what many would characterize as “unadulterated BS” without meaningful consequences, other than to stretch the “battle lines” of the pro bono opposition to the breaking point. Indeed, as many fearless immigration and human rights litigators will confirm, it has become the burden of the private, usually pro bono or “low bono,” bar to “fact check” and disprove the false narratives and incomplete or misleading accounts submitted by the DOJ to the Federal Courts.

How does this “misplacing of the burden” further the interests of justice and encourage representation of the most vulnerable in our society? Clearly, it doesn’t, which is the entire point of the DOJ’s destructive and unprofessional “strategy!” Certainly, these are unmistakable signs of widespread systemic breakdown in our Federal justice system.

I urge everyone to attend and learn more about why the rule of law is “on the ropes” in today’s America, what efforts are being made to save and preserve it, and to ponder the consequences of what another four years of a corrupt, scofflaw, White Nationalist regime and complicit Federal Judges could mean for everyone in America and perhaps the world!

Due Process Forever! If you don’t stand up for it, you’ll find yourself living in the “world’s highest-GNP failed state,” governed by a hereditary kakistocracy enabled by feckless “judges” more interested in their life tenure than in YOUR rights under the law!🤮☠️🏴‍☠️👎

Star Chamber Justice

“Due Process of Law”

As Reenvisioned By Trump & Billy Barr

This is what “Dred Scottification” or the “end of the rule of law” as promoted by Trump, Miller, Barr and their cronies, and enabled by a tone-deaf and “insulated from the human suffering they cause” Supremes’ majority looks like:

“Floaters” — “Floaters — How The World’s Richest Country Responds To Asylum Seekers”
EDS NOTE: GRAPHIC CONTENT – The bodies of Salvadoran migrant Oscar Alberto Mart??nez Ram??rez and his nearly 2-year-old daughter Valeria lie on the bank of the Rio Grande in Matamoros, Mexico, Monday, June 24, 2019, after they drowned trying to cross the river to Brownsville, Texas. Martinez’ wife, Tania told Mexican authorities she watched her husband and child disappear in the strong current. (AP Photo/Julia Le Duc)

PWS

09-03-20

🖕 BIRDLAND: Wolfman, USCIS “Flip Off” Supremes, Federal Courts, With A “Dumbed Down” Version Of DACA Resumption!

Here’s the USCIS Directive:

From: U.S. Citizenship and Immigration Services [mailto:uscis@public.govdelivery.com]
Sent: Monday, August 24, 2020 8:19 AM
To: Dan Kowalski
Subject: USCIS Implements DHS Guidance on DACA

U.S. Citizenship and Immigration Services today provided guidance on how it will implement Acting Secretary of Homeland Security Chad Wolf’s July 28 memorandum regarding the Deferred Action for Childhood Arrivals (DACA) policy.

Under USCIS’ implementing guidance, we will reject all initial DACA requests from aliens who have never previously received DACA and return all fees. The rejections will be without prejudice, meaning aliens will be able to reapply should USCIS begin accepting new requests in the future from aliens who never before received DACA. USCIS will continue to accept requests from aliens who had been granted DACA at any time in the past and will also accept requests for advance parole that are properly submitted to the address specified on the Direct Filing Addresses for Form I-131 webpage.

For approvable DACA renewal requests, USCIS will limit grants of deferred action and employment authorization under DACA to no more than one year, but will not rescind any currently valid two-year grants of DACA or associated employment authorization documents (EADs), unless USCIS terminates an alien’s DACA for failure to continue to meet the DACA criteria (see 2012 Memorandum), including failure to warrant a favorable exercise of prosecutorial discretion. USCIS will replace two-year EADs that are lost, stolen or damaged with the same facial two-year validity period assuming the EAD replacement application is otherwise approvable.

USCIS will generally reject requests received more than 150 days before the current grant of DACA expires. DACA recipients should file their renewal request between 150 and 120 days before their current grant of DACA expires.

USCIS will only grant advance parole for travel outside the United States to DACA recipients pursuant to the new guidance, which provides for a determination that parole of the alien is for urgent humanitarian reasons or significant public benefit in keeping with the governing statute. The agency will not rescind any previously granted advance parole documents unless there is another legal reason to do so. However, as has always been the case, parole into the United States is not guaranteed. In all cases, aliens are still subject to immigration inspection at a port-of-entry to determine whether they are eligible to come into the United States.

The determination whether to grant advance parole to an alien is entirely within the discretion of USCIS and must be made on a case-by-case basis. USCIS will review all the factors presented in individual cases before determining whether to approve advance parole for a DACA recipient based on the new guidance. Some examples of circumstances that may warrant approval include, but are not limited to, situations such as:

Travel to support the national security interests of the United States;

Travel to support U.S. federal law enforcement interests;

Travel to obtain life-sustaining medical treatment that is not otherwise available to the alien in the United States; or

Travel needed to support the immediate safety, wellbeing or care of an immediate relative, particularly minor children of the alien.

Even if a requestor establishes that their situation meets one of the examples above, USCIS may still deny the request for advance parole in discretion under the totality of the circumstances.

CAUTION: If you travel outside the United States on or after Aug. 15, 2012, without first receiving advance parole, your departure automatically terminates your deferred action under DACA.

Please do not reply to this message. See our Contact Us page for phone numbers and e-mail addresses.

Notably, the plaintiffs have already filed a contempt motion in the DACA litigation: https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/daca-advocates-file-contempt-motion-against-dhs

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The actions of Wolfman, his cronies, and the Government lawyers who carry their water are obviously those of lawless individuals who neither fear nor expect accountability. And, why should they?

After more than three years of unrelenting corruption, bad faith, lies, misrepresentations, and overt illegal and unconstitutional actions motivated by racism and xenophobia, just what “consequences” have Administration officials carrying out the Trump/Miller program of “nullification” and “institutionalized racism” suffered? Not many, that I can see, beyond an inordinate number of lower Federal Court defeats that they ignore or avoid in bad faith. Occasionally, certainly nowhere close to as often as they deserve, the regime receives a relatively mild rebuke from the Supremes. But, for the most part, the resulting orders are largely toothless and merely suggest ways in which they can be avoided or “worked around” without consequences.

We’ll see if this time is different. But, I wouldn’t count on it!

PWS

08-24-20

JULIA AINSLEY & JACOB SOBOROFF @ NBC NEWS REPORT ON WHITE NATIONALIST WHITE HOUSE: Neo-Nazi Stephen Miller & Cabinet Racists Voted To Abuse Brown Children: “If we don’t enforce this, it is the end of our country as we know it,” Said The New American Gruppenfuhrer!” — “Any moral argument regarding immigration ‘fell on deaf ears’ inside the White House, said one of the officials.”

Julia Edwards Ainsley
NBC News Correspondent

https://apple.news/AZFgY4X7BQsaKSITqteCbIg

Trump cabinet officials voted in 2018 White House meeting to separate migrant children, say officials

“If we don’t enforce this, it is the end of our country as we know it,” said Trump adviser Stephen Miller, say officials present at a White House meeting.

by Julia Ainsley and Jacob Soboroff | NBC NEWS

WASHINGTON — In early May 2018, after weeks of phone calls and private meetings, 11 of the president’s most senior advisers were called to the White House Situation Room where they were asked, by a show-of-hands vote, to decide the fate of thousands of migrant parents and their children, according to two officials who were there.

Trump’s senior adviser, Stephen Miller, led the meeting and, according to the two officials, he was angry at what he saw as defiance by Department of Homeland Security Secretary Kirstjen Nielsen.

It had been nearly a month since then-Attorney General Jeff Sessions had launched the Trump administration’s “zero tolerance” policy, announcing that every immigrant who crossed the U.S. border illegally would be prosecuted, including parents with small children. But so far, U.S. border agents had not begun separating parents from their children to put the plan into action, and Miller, the architect of the Trump administration’s crackdown on undocumented immigrants, was furious about the delay.

Those invited included Sessions, Nielsen, Health and Human Services Secretary Alex Azar and newly installed Secretary of State Mike Pompeo, according to documents obtained by NBC News.

Nielsen told those at the meeting that there were simply not enough resources at DHS, nor at the other agencies that would be involved, to be able to separate parents, prosecute them for crossing the border and return them to their children in a timely manner, according to the two officials who were present. Without a swift process, the children would enter into the custody of Health and Human Services, which was already operating at near capacity.

Two officials involved in the planning of zero tolerance said the Justice Department acknowledged on multiple occasions that U.S. attorneys would not be able to prosecute all parents expeditiously, so sending children to HHS was the most likely outcome.

As Nielsen had said repeatedly to other officials in the weeks leading up to the meeting, according to two former officials, the process could get messy and children could get lost in an already clogged system.

Miller saw the separation of families not as an unfortunate byproduct, but as a tool to deter more immigration. According to three former officials, he had devised plans that would have separated even more children. Miller, with the support of Sessions, advocated for separating all immigrant families, even those going through civil court proceedings, the former officials said.

While “zero tolerance” ultimately separated nearly 3,000 children from their parents, what Miller proposed would have separated an additional 25,000, including those who legally presented themselves at a port of entry seeking asylum, according to Customs and Border Protection data from May and June 2018.

That plan never came to fruition, in large part because DHS officials had argued it would grind the immigration process to a halt. But after Sessions’ announcement that all families entering illegally would be prosecuted, the onus had fallen on DHS to act.

At the meeting, Miller accused anyone opposing zero tolerance of being a lawbreaker and un-American, according to the two officials present.

“If we don’t enforce this, it is the end of our country as we know it,” said Miller, according to the two officials. It was not unusual for Miller to make claims like this, but this time he was adamant that the policy move forward, regardless of arguments about resources and logistics.

No one in the meeting made the case that separating families would be inhumane or immoral, the officials said. Any moral argument regarding immigration “fell on deaf ears” inside the White House, said one of the officials.

“Miller was tired of hearing about logistical problems,” said one of the officials. “It was just, ‘Let’s move forward and staff will figure this out.'”

Frustrated, Miller accused Nielsen of stalling and then demanded a show of hands. Who was in favor of moving forward, he asked?

A sea of hands went up. Nielsen kept hers down. It was clear she had been outvoted, according to the officials.

In the days immediately following the meeting, Nielsen had a conversation with then-CBP Commissioner Kevin McAleenan inside her office at the Ronald Reagan Building, and then signed a memo instructing DHS personnel to prosecute all migrants crossing the border illegally, including parents arriving with their children.

. . . .

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Read the rest of the report, detailing the full extent of this outrageous, illegal, and immoral conduct by corrupt high-level officials of our Government, at the link. This is what your tax dollars have been used for, while legitimate needs like coronavirus testing, disaster relief (see, Iowa), mail delivery, naturalization services, unemployment relief, etc., go unmet!

So, separated families and children continue to suffer, much of the harm and trauma irreparable and life-defining. This “policy” was so clearly illegal and unconstitutional that DOJ attorneys conceded its unconstitutionality in Federal Court.

However, in an ethics-free DOJ, those same lawyers falsely claimed that there was no such policy. Rudimentary “due diligence” on their part, required by professional ethics, would have revealed that their representations on behalf of corrupt institutional “clients” were false.

The article also confirms the complicity of Kevin “Big Mac With Lies” McAleenan in gross, intentional human rights violations. Courtside exposed “Big Mac” long ago!

While the victims continue to suffer, Miller, Sessions, Nielsen, Big Mac, and other cowards who planned and carried out these “crimes against humanity,” directed at some of the most vulnerable humans in the world, remain at large. Some, like Miller, actually remain on the “public dole.” Likely, so do the DOJ lawyers who unprofessionally defended and helped obscure this misconduct in Federal Court.

It’s also worth examining the role of U.S. Magistrate Judges and U.S. District Judges along the southern border, most of whom turned a blind eye to the transparent racial and political motives, not to mention the grotesque misallocation of public resources, driving Sessions’s “zero tolerance” misdirection of scarce prosecutorial resources from serious felonies to minor immigration prosecutions.

As I’ve been saying, “Better Federal Judges for a better America!” And, better Federal Judges start with removal of the Trump regime as well as the ousting of “Moscow Mitch” and the GOP from Senate control.

Will there ever be accountability? Our national soul and future might depend on the answer!

Had enough wanton cruelty, neo-Nazism, corruption, illegality, immorality, cowardice, lies, false narratives, racism, stupidity, and squandering of tax dollars on nativist schemes and gimmicks? Get motivated and take action to get our nation back on track to being that “City upon a Hill” that the rest of the world used to admire and respect!

This November, vote like your life and the very future of humanity depend on it! Because they do!

PWS

08-21-20

CHANNELING COURTSIDE: Billy The Bigot’s Bias, Lies, & Absurdist “Legal Arguments” Have Tanked The DOJ’s Credibility With U.S. Courts – “The problem with bypassing professionals and norms is that the decisions you make instead are often transparently foolish, or appear rigged to achieve an unprincipled or corrupt result,” says WashPost Op-Ed – So, Why Does Billy B Still Have A Law License?

https://www.washingtonpost.com/opinions/2020/08/18/justice-departments-extreme-legal-arguments-are-costing-it-court/

Opinion by

George T. Conway III and

Lawrence S. Robbins

August 18, 2020 at 5:12 p.m. EDT

Lawrence S. Robbins is an appellate and trial lawyer at Robbins Russell. George T. Conway III is a lawyer and an adviser to the Lincoln Project, an anti-Trump super PAC. The writers both submitted friend-of-the-court briefs opposing the government’s motion in the Flynn case.

If there’s one thing you can say about President Trump and his administration, it’s that nothing is regular except the irregular, which has had myriad damaging consequences for the nation. And it’s had particularly adverse consequences for the federal government’s ability to defend itself in court.

The latest example comes in the criminal case against Trump’s first, short-tenured national security adviser, Michael Flynn. He pleaded guilty — not once but twice — to charges that he had lied to FBI agents during an interview about his conversations with senior Russian officials during the presidential transition. Despite Flynn’s admissions of guilt, Attorney General William P. Barr filed a motion asking that the case be dismissed — and supporting Flynn’s effort to have that done without even a hearing before the district judge.

Flynn won before an appeals court panel. But when the full court of appeals heard arguments on Flynn’s petition, the judges couldn’t have seemed more bewildered at the Trump administration’s position. The government argued that the district judge couldn’t inquire into the government’s reasons for seeking dismissal even if he’d seen the prosecutor take a bribe, in open court, in exchange for dismissing the case.

The Trump administration has been saying things like that a lot lately — trying to stretch the law in ways that undermine its remaining credibility. It argued that a sitting president’s accountants and bankers can’t be subpoenaed for his personal records during his term in office by either a state grand jury or, without meeting an impossibly high burden, by Congress. It argued that the president’s close aides can’t be called to testify before a congressional committee investigating presidential misconduct. The least trustworthy administration in decades, if not ever, keeps arguing: “You’ve just got to trust us.”

Lawyers have a phrase for the government’s saying “Trust us.” It’s called the “presumption of regularity.” The presumption of regularity means that courts should presume that government officials acted through a “regular” process: that it carefully vetted its policy and scrupulously examined relevant legal precedents.

But, as its name suggests, the presumption of regularity rests on the premise that the government is functioning in a regular way. And the Trump administration is anything but regular. Following the cues of a chief executive who despises what he calls the “deep state,” administration officials have cut corners, displaced career professionals, exiled dissenters and abandoned institutional norms — in short, circumvented the very processes that justify the presumption of regularity in the first place.

The chickens have now come home to roost. Whether they say so explicitly or not, courts have been dispensing with the presumption of regularity. The best example: In the litigation over the 2020 Census, the Supreme Court held that Commerce Secretary Wilbur Ross’s decision to add a citizenship question to the census form was arbitrary and capricious. The reason? “Altogether,” Chief Justice John G. Roberts Jr. wrote, “the evidence does not match the explanation the secretary gave for his decision.” That’s just a polite lawyer’s way of saying Ross lied.

Examples of the administration’s disrespect for regularity are legion, and not just confined to litigated matters. Barr has acted as a virtual one-man band of irregularity: He forced the U.S. attorney in Washington, Jessie K. Liu, out of her job, thereby enabling him to countermand former special counsel Robert S. Mueller III’s sentencing recommendation for Roger Stone. And Barr gave a transparently false account of the Mueller report in the week before it was released to the public.

. . . .

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Read the rest of the op-ed at the above link.

Perhaps the most disturbing thing is that Billy the Bigot actually “runs” a so-called “court system” — the U.S. Immigration Court — that has life or death authority over some of the most vulnerable individuals in our society, indeed in the world! How this stunning violation of both the Fifth Amendment and fundamental human decency (not to mention basic principles of competent management and good governance) continues to grind humanity into a grisly mess 🤮 of human misery ☠️ in plain sight every day is beyond me!

Almost everything in this “spot on” op-ed echoes “Courtside.” I have consistently criticized the irresponsibility and the gross dereliction of Constitutional duty by a Supremes majority that all too often treats Trump’s patently false, racist, xenophobic, and invidious immigration, refugee, and asylum policies as the actions of a “normal Executive” when Trump is nothing of the sort.

Nor does he even claim to be! He ran on overtly racist and hate-driven policies and has promoted racist tropes and lies about immigrants at every turn. Yet, the Supremes often pretend that there is some “legitimate basis” for clearly illegitimate policies and abrogation of important laws without the involvement of Congress and of Constitutional protections without any reasonable, fact-based justification.

If the “chickens have come home to roost” for the corrupt Trump DOJ, so will they eventually come home to roost for Supremes who have disingenuously and intentionally looked the other way and have enabled, or in some cases even encouraged, Trump’s racist and lie-driven dismantling of American democracy and “Dred Scottification” of “the other.” Life tenure protects the jobs of derelict Federal Judges. But, it won’t protect their reputations from the truth of history.

This November, vote like your life and the future of America depend on it! Because they do!

PWS

08-19-20

🏴‍☠️☠️👎🏻NATIONAL SECURITY: The Threat Isn’t On The Streets Of Portland Or From The Virtually Non-Existent & Largely Mythical “Antifa” — Leaving Aside The Existential Threat Posed By Trump, The Biggest Threat To America’s Future Existence Is On Our Payroll & Operates With Impunity From The 5th Floor Of The USDOJ — “Billy The Bigot” Barr Is Hell-Bent On Seeing The US Become A Hitlerian/Putinist State! — “It isn’t arguable; it’s wrong.” — So Why Does The “JR Five” Give Billy A Pass While Failing To Protect Humanity & The Rule of Law?

From the LA Times:

https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?guid=9c0e081f-1c63-4c31-af1d-af5fddcb108d&v=sdk

What makes Barr a danger to democracy

The attorney general channels Trump

HARRY LITMAN

Atty. Gen. William Barr left us with a terrifying certainty in the wake of his testimony Tuesday in front of the House Judiciary Committee: Under him, the Department of Justice stands ready to advance any pro-Trump policy, justifying it on the basis of a blinkered, tenuous view of the facts and the law, or maybe just Barr’s personal ideological intuitions.

For all its finger-wagging, the Judiciary Committee is not in a position to constrain the attorney general. There is no real brake on Barr’s conduct short of a Trump loss in November. Or, to adopt Barr’s own unsettling gloss, a Trump loss that is sufficiently “clear” that he and his boss would accept it.

Since the hearing, commentators have seized on a couple of blows that Democrats on the Judiciary Committee — Reps. Eric Swalwell (D-Dublin) and Pramila Jayapal (D-Wash.) primarily — landed on the attorney general. But there was nothing close to a knockdown, and the hard facts remain: The House will not impeach Barr and President Trump will continue to give him full rein.

It’s no secret that the Democrats in Congress (and more than half of the country) view Barr as Mephistopheles — dishonest, partisan, corrupt, even racist. He did nothing Tuesday to try to revise that view; in fact, he seemed indifferent to it.

Norms of evenhandedness, professionalism and especially political disinterest, which traditionally check U.S. attorneys general, do not moderate his conduct. He championed every partisan act his DOJ has taken on the president’s behalf, blandly claiming they reflected the faithful application of the rule of law.

For example, when he defended the highly unusual deployment of federal agents in Portland, Ore., Barr described a “Batman”-like dystopia in which a few U.S. marshals were beset by a marauding horde of uncontrollable professional anarchists. If that were accurate, it would be hard to quibble with sending in the feds.

But the justification dries up immediately if the protests were, as a lot of the reporting on the ground indicates, largely peaceful, and if local law enforcement were capable of defending the Portland federal courthouse and separating lawbreakers from peaceful protestors. (The announcement Wednesday that the Department of Homeland Security’s mystery troops were withdrawing suggests the argument for the invasion was tenuous all along.)

Or consider Barr’s legally tortured defense of the president’s memo attempting to exclude immigrants who are in the U.S. illegally from the 2020 census. The plain language of the 14th Amendment, as well as a unanimous opinion of the Supreme Court, leaves no room for argument: Everyone who “inhabits” the U.S. must be counted.

But Barr claims that Congress has delegated to the Commerce Department an ability to advance an Orwellian definition of “inhabitant.” He called it an “arguable position.” It isn’t arguable; it’s wrong.

And given that it is the attorney general’s job to uphold the law of the land, he shouldn’t even bring up the theory, regardless of the half- or quarter-baked views of the president.

Barr’s partisan proclamations went on and on, with this whopper as a high point: “From my experience, the president has played a role properly and traditionally played by presidents.”

. . . .

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

Read the rest of the op-ed at the link.

Beyond Congressional fecklessness, perhaps the most disturbing and scary aspect of Billy’s anti-democracy, anti-humanity, racist agenda is that it has received only “light pushback” from the supposedly independent Article III Courts, particularly the Supremes’ majority led by Roberts.

Private practitioners who made the types of specious, disingenuous, and wrong arguments to Federal Courts advanced by Billy and fellow Trump toady Solicitor General Noel Francisco and their minions would probably have been disbarred or even in jail by now. Not only do these guys continue their wanton destruction of our legal system, but Roberts & Co. sometimes actually reward the DOJ’s fraud, racism, and bad faith.

Crooked and corrupt politicos are one thing. But, Supreme Court Justices who won’t call them out for their invidious motivations, won’t stand up for equal justice under law, allow racist abuses in the guise of patently bogus “national security” and Executive prerogative pretexts, won’t protect refugees, asylum seekers, children, or migrants of color, favor tyranny over humanity, and allow their courts to be paralyzed by frivolous Government litigation, dilatory appeals, and transparently bogus procedural gimmicks are the real problem here!

As Litman points out, despite the “smokescreens” thrown up by Barr and complicit courts, there’s really no ambiguity about what’s happening here. It’s straightforward! It’s a full scale attack on our justice system, our democracy, and our humanity by a bunch of would-be facist thugs operating out of the Executive Branch of our Government. America needs better Justices and Federal Judges who will cut through the legalistic BS, show courage, have integrity, and stand up for democracy, humanity, and equal justice for all!

Due Process Forever! Complicit Courts Never!

PWS

08-03-20

🏴‍☠️☠️🤮👎🏻ERROR SUPPLY: EOIR’s Anti-Asylum Bias, Failure To Apply Precedents, Earns Yet Another Rebuke From 3d Cir. — Blanco v. AG

Dan Kowalski reports for LexisNexis Immigration Community:

Immigration Law

Daniel M. Kowalski

25 Jul 2020

persecution

cat

Honduras

asylum

CA3 on Persecution: Blanco v. Atty. Gen.

Blanco v. Atty. Gen.

“Ricardo Javier Blanco, a citizen of Honduras, is a member of Honduras’s Liberty and Refoundation (“LIBRE”) Party, an anti-corruption political party that opposes the current Honduran president. After participating in six political marches, he was abducted by the Honduran police and beaten, on and off, for twelve hours. He was let go but received death threats over the next several months until he fled to the United States. He applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) denied all relief, and the Board of Immigration Appeals (“BIA”) affirmed. Blanco now petitions for review of the agency’s decision, arguing that the BIA and IJ erred in denying his asylum and withholding of removal claims on the basis that his treatment did not rise to the level of persecution. He also argues that it was improper to require him to corroborate his testimony to prove his CAT claim. Because the agency misapplied our precedent when determining whether Blanco had established past persecution, and because it did not follow the three-part inquiry we established in Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001), before requiring Blanco to corroborate his CAT claim testimony, we will grant the petition, vacate the BIA’s decision, and remand for further proceedings.”

[Hats off to patent lawyers Gary H. Levin and Aaron B. Rabinowitz!]

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

This should have been a “no brainer” asylum grant!

Instead, after two levels of disturbingly unprofessional administrative decision-making, now driven by racism and overt anti-immigrant bias, and one layer of “real court” review, the case is basically back to square one. No wonder this “Deadly Clown Court” ☠️🤡 is running a 1.4 million backlog, and counting!

Think we have the wrong folks on the “Immigration Bench?” You bet! Two smart patent lawyers from Baker Hostetler run legal circles around an IJ, the BIA, and OIL!

Interestingly, a significant number of students in my Georgetown Law Summer Semester Immigration Law & Policy (“ILP”) Class have been patent examiners and/or patent attorneys! They have all been amazing, both in class dialogue and on the final exam. I suspect it has something to do with analytical skills, meticulous research, and attention to detail — always biggies in asylum litigation!

That’s why we must end a “built to fail” system that preys on unrepresented or underrepresented asylum seekers in illegal, intentionally inhumane and coercive, detention settings, where adequate preparation and documentation are impossible and where judges, too often lacking in asylum expertise, humanity, and/or the time to carefully research and deliberate, are pressured to engage in “assembly line denials.”

And, thanks to the racial dehumanization embraced by the Supremes’ majority many refugees, disproportionately those with brown or black skins, are completely denied fair access to the asylum hearing system. They are simply treated by our highest Court like human garbage — sent back to torture or potential death in unsafe foreign countries without any due process at all. So, the systemic failure is not by any means limited to the “Immigration Star Chambers.”

A simple rule of judging that appears “over the heads” of the current Supremes majority: If it wouldn’t be due process for you or your family in a death penalty case, than it’s not due process for any “person.” Not “rocket science.” Just “Con Law 101” with doses of common sense and simple humanity thrown in. So why is it beyond the capabilities of our most powerful judges?

If there is any good news coming out of this mess, it’s that more talented litigators like Gary Levin and Aaron Rabinowitz from firms like Baker Hostetler are becoming involved in immigration and human rights litigation. They often run circles around Billy the Bigot’s ethically-challenged group of captive DOJ lawyers, who can no longer operate independently and ethically, even if they want to.

So, in a better future, after regime change, there are going to be lots of really great sources for better judges out there at all levels of the Federal Judiciary from the eventually independent Immigration Courts, to the U.S. District Courts and Magistrate Judges, to the Courts of Appeals, all the way to the Supremes.

At the latter, we need new and better Justices: Justices who understand immigration and human rights laws and the overriding human interests at stake, who will “lose” the White institutional racial bias and perverted right-wing ideologies that infect our current Court, and who are dedicated to making the vision of folks like Dr. King and Congressman John Lewis for “equal justice under law” and an end to dehumanization of persons of color a reality under our Constitution and within our system of justice!

There is no excuse for the current Supreme Court-enabled travesty unfolding in a biased, broken, and dysfunctional immigration system every day!

Due Process Forever!

This November, vote like our nation’s future existence depends on it! Because it does!

PWS

07-26-20

🤮👎☠️SCREWED: ICE, Advocates, Judge Conspiring To Sell Out Refugee Kids & Families To Illegal Racist Scheme Called “Binary Choice” To Disguise Invidious Intent!

Michelle Hackman
Immigration Reporter
Wall Street Journal

Alicia A. Caldwell
Immigration Reporter
Wall Street Journal

https://apple.news/A4SQ_qG_DSme90hH0KK4C4g

Michelle Hackman and Alicia Caldwell report for the WSJ:

WASHINGTON—The Trump administration is nearing a deal with some immigrant advocates that would present a choice to jailed parents fighting denial of asylum: let their children be released without them or remain detained together indefinitely, according to federal court filings and lawyers for the children.

The deal is being negotiated between U.S. Immigration and Customs Enforcement and attorneys representing roughly 100 children in detention, a development that has divided the pro-immigrant advocacy community.

If enacted, the “binary choice” plan, as it is known, would realize a long-sought goal by the Trump administration not to release immigrant families seeking asylum together in the U.S. Many of these families report fleeing gang violence, poverty or corruption in Central American countries. The plan would allow parents to choose between releasing their children to relatives in the U.S. or long-term foster care, or keeping their families in detention, waiving rights given to the children under a 23-year-old court settlement.

That settlement, known as the Flores agreement, requires ICE to release migrant children in its custody, not entire families, though past administrations, including the Trump administration until last year, largely complied with it by releasing children together with their parents.

Most immigrant advocates oppose “binary choice,” arguing it is tantamount to a new family separation policy, akin to a policy the administration adopted briefly in 2018 to prosecute all adults crossing the border illegally. The policy resulted in children being taken away from those adults. The government halted those family separations after a broad bipartisan outcry, though it has been looking for other ways to deter migrant families from seeking asylum ever since.

“Asking a parent to choose between indefinite detention in a place where there is already a Covid outbreak and being separated from your child for an undetermined length of time, that is a coercive situation,” said Stephanie Alvarez-Jones, a staff attorney with Proyecto Dilley, which provides legal representation to families at the South Texas Family Residential Center in Dilley, Texas.

The lawyers working with ICE, who represent the children in continuing enforcement of the Flores agreement, say they are left with little choice and aim to protect the best interests of the migrant children.

“By negotiating, we’ve been able to substantially lessen the harshness of ICE’s proposal,” said Peter Schey, president of the Los Angeles-based Center for Human Rights and Constitutional Law, which has managed the Flores Agreement.

ICE declined to comment on the details of the case, citing the pending litigation.

. . . .

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

Those with full WSJ access can read the complete article at the link.

It’s not rocket science. “Binary choice” is nothing but a racist scam designed by Stephen Miller and other White Nationalists in the regime primarily to punish asylum seekers of color and their children for seeking legal protection, to traumatize and duress them into giving up potentially valid claims, to inflict lasting psychological harm on non-white populations, and to serve as an example and deterrent to others who might dare to exercise their legal rights in the face of tyranny by a racist Executive. All of the foregoing are in clear violation of the 5^th, 8^th, and 14^th Amendments to the U.S. Constitution, not to mention our asylum statutes and international instruments to which we supposedly are party. You don’t need a law degree to figure that out.

Those who have engineered, furthered, and gone along to get along with these gross abuses of children and betrayals of the human rights and dignity of the most vulnerable among us will not escape the judgment of history. Sadly, that will be small consolation for the multitude of broken bodies, traumatized minds, and damaged souls that they leave in their ugly wake!

⁴²For I was an hungred, and ye gave me no meat: I was thirsty, and ye gave me no drink:

⁴³I was a stranger, and ye took me not in: naked, and ye clothed me not: sick, and in prison, and ye visited me not.

⁴⁴Then shall they also answer him, saying, Lord, when saw we thee an hungred, or athirst, or a stranger, or naked, or sick, or in prison, and did not minister unto thee?

⁴⁵Then shall he answer them, saying, Verily I say unto you, Inasmuch as ye did it not to one of the least of these, ye did it not to me.

—— Matthew 25

Due Process Forever!

PWS

07-23-20

🏴‍☠️AFFIRMATIVE MISCONDUCT — 2d Cir. Calls Out DHS Misconduct, Reacts To DOJ’s Questionable Litigating “Strategy” In Equitable Estoppel Case — Schwebel v. Crandall

Jeffrey Feinbloom
Partner
Feinbloom Bertisch LLP
NY, NY

Schwebel v. Crandall, 18-3391 (2d Cir. July 22, 2020)

https://scholar.google.com/scholar_case?case=1950544751001345123&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Attorney Jeffrey Feinbloom reports:

I am pleased to announce a big win today before the Second Circuit. The Opinion is attached.

The Court held that the government is equitably estopped from denying an application for adjustment of status where: (1) it commits “affirmative misconduct” by failing to comply with an affirmatively required procedure – in this case, the failure to issue a Receipt or Rejection Notice in response to an attempted filing; (2) the applicant reasonably relies on the agency’s misconduct/inaction; and (3) the applicant is prejudiced thereby.

The interesting twist in this case is that the Court declined to reach the underlying statutory issue – concerning the CSPA – on which the District Court ruled in our favor. My take, having litigated and argued the case in both courts, is that the panel was genuinely flabbergasted that the government was pursuing the appeal and took the opportunity to stick it to DHS and issue a ruling on estoppel. The District Court did not even address estoppel, which was my alternative argument and occupied less than 5% of my briefing. My understanding is that the District Court decision – affirmed on other grounds – can still be cited for the substantive/legal conclusions it made regarding the CSPA. (Please correct me if I am wrong).

__________________________________

Jeffrey A. Feinbloom

FEINBLOOM BERTISCH LLP

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

Thanks, Jeffrey. The term “Affirmative Misconduct” could be used to describe the overall conduct of DHS and the entire immigraton kakistocracy under the Trump regime.

Historical Footnote: I worked on Corniel-Rodriguez v. INS, 532 F.2d 301, 306-07 (2d Cir. 1976) (holding that government official’s “noncompliance with an affirmatively required procedure” constituted “severe” misconduct, and reversing Board of Immigration Appeal’s (“BIA”) order of deportation without remanding to agency for fact-finding or further proceedings) when I was a young attorney in the “Legacy INS” Office of General Counsel, then headed by the legendary immigration guru Sam Bernsen, in 1976.

The Corniel-Rodriguez case led directly to the eventual creation of the section 212(k) waiver for innocent misrepresentations on visa applications as part of a larger “INS Efficiency Bill” proposed by our Office and eventually enacted by Congress. Just shows that there was a time when those running the U.S. immigration system actually “did the right thing,” at least on some occasions. Perhaps not surprisingly, “doing the right thing” often also proved to be the “efficient thing” by promoting justice and avoiding unnecessary, and often losing, litigation.

Those days, of course, are long gone. The Government immigration system is now run by hacks lacking both expertise and values and who, with the assistance of the DOJ, intentionally clog the Federal Courts with litigation that likely would have been deemed frivolous, unethical, or at least not in the best interests of the public in earlier times.

It also highlights a severe deterioration in the performance of the Solicitor General’s Office in the DOJ. That office used to encourage all Federal agencies to develop administrative solutions in cases where, after review of the Article III Courts’ “adverse decisions,” the agency position below appeared to be indefensible in future litigation.

Now, the Solicitor General is actually a “cheerleader” for some racially motivated appeals against lower court decisions correctly favoring immigrants and asylum seekers. These appeals are often “supported” by very obvious pretexts for invidious actions by the regime. Given the lack of integrity, courage, and commitment to racial justice on the current Supremes’ majority, the “bad guys” sometimes improperly prevail.

But, it’s actually no more mystery to outgoing Solicitor General Noel Francisco what motivates Stephen Miller & co. than it is to the rest of us. It’s just that Francisco has consciously chosen to be “part of the problem,” something that should be remembered when the history of his disgraceful tenure in office is written.

It also shows that whenever we finally get a return to “Good Government,” a “cleanout” of EOIR and creation of an Article I Immigration Court needs to be the first thing on the list; but, a thorough re-examination of the role of every part of a corrupt DOJ that has failed to act independently and has furthered a program of overt racism, inequality, and injustice, and often argued disingenuously for “worst practices and worst interpretations,” is also an absolute necessity.

To state the obvious, the fairness and efficiency of our immigration system as well as our entire U.S. Justice system is actually in full throttle reverse under the Trump kakistocracy.

Due Process Forever!

PWS

07-23-20

Due Process Forever! Clown Show (With Lives & Humanity On The Line) Never!

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Better Federal Judges for a Better America! It starts at the polls!

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JUST SAY NO TO 1939: HOW JUDGES CAN SAVE LIVES, UPHOLD THE CONVENTION, AND MAINTAIN INTEGRITY IN THE AGE OF OVERT GOVERNMENTAL BIAS TOWARD REFUGEES AND ASYLUM SEEKERS

By Paul Wickham Schmidt,

U.S. Immigration Judge, Retired

Americas Conference

International Association of Refugee & Migration Judges

Georgetown Law

August 4, 2018

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☠️⚠️‼️DISCLAIMER: Of course, the following are just my views, not the views of anyone on the All-Star cast of speakers at this upcoming event, the NYCBA, or anyone else of any importance whatsoever!

This is what “Dred Scottification” or the “end of the rule of law” as promoted by Trump, Miller, Barr and their cronies, and enabled by a tone-deaf and “insulated from the human suffering they cause” Supremes’ majority looks like:

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This November, vote like your life and the very future of humanity depend on it! Because they do!

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Due Process Forever! Complicit Courts Never!

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This November, vote like our nation’s future existence depends on it! Because it does!

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—— Matthew 25

Due Process Forever!

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