AS THOSE CHARGED WITH PROTECTING JUSTICE “TOADY UP” & ENABLE TRUMP REGIME’S “CRIMES AGAINST HUMANITY,” ONE GROUP OF CIVIL SERVANTS HAS THE COURAGE TO STAND UP FOR DUE PROCESS, THE RIGHTS OF ASYLUM SEEKERS, & SIMPLE HUMAN DIGNITY: USCIS ASYLUM OFFICERS! BONUS+: My Latest Monday Essay: “Heroes & Enablers”

https://apple.news/AOKo5byofRfKem24qSuLsaA

Joe Jurado reports for The Root:

The immigration policies executed by the Trump administration have been, to be succinct, f***ed up. That’s not even just me saying that. The people who have to execute his policies are saying it too.

The New York Times reports that a union of federal asylum workers has filed an amicus brief stating that a policy from the Trump Administration that diverts migrants to Guatemala is unlawful. The union, National CIS Council 119, represents 700 asylum and refugee officers of the United States Citizenship and Immigration Services. The brief states that international treaty obligations are being violated as a result of having to deport migrants to a country where they will likely face prosecution. The Trump administration made a deal with Guatemala that allows the United States to deport migrants seeking asylum in the States to Guatemala. The union believes that these new rules are forcing them to violate the laws they were trained to uphold.

. . . .

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Read the complete report at the link.

HEROES & ENABLERS — Judges Who Aid The Trump Regime’s Deadly Oppression Of The Most Vulnerable Among Us Will Eventually Hear The Voices Of Those They Abandoned & Dehumanized — Even From The Graves Of The Oppressed, History Will Pass Judgement On The Smugly Powerful Who Abuse The Weak!

By Paul Wickham Schmidt

Courtside Exclusive

March 9, 2020

USCIS Asylum Officers are the “NDPA Heroes of the Week!”

So, one group of courageous civil servants is willing to put their careers on the line to defend the Constitution and the rights of the vulnerable. But, others in more protected positions, like, for example, Supreme Court Justices and some Court of Appeals Judges, are afraid to stand up to Trump and defend the rule of law and the humanity of those whose only “crime” is to trust in our legal protection system. The courage of one group contrasts with the willful ignorance and cowardly complicity of the other. What’s wrong with this picture?

At some point, there will be “regime change” in the Executive as well as the Senate. When that happens, our system needs a complete re-examination of the immigration scholarship, commitment to human rights, and the moral leadership of those we are giving lifetime appointments to the Federal Bench, particularly the Supremes.

Obviously, the system has failed when two current justices choose to use their power and privileged positions disingenuously to rail about the “bogus horrors” of nationwide injunctions, and thereby spur the regime on to even grater abuses, while papering over the real issue of the actual grotesque legal, constitutional, and human rights violations inflicted on migrants and others by a White Nationalist would-be authoritarian regime that would eventually do away with almost all of our legal rights.

In the future, perhaps we should consider elevating more Asylum Officers with law degrees and a record of fair adjudication and speaking truth to power to the Article III Judiciary, including the Supremes. There are younger members of our Round Table of Former Immigration Judges who were forced by the regime into “early retirement” who could bring scholarship, fairness, practicality, and justice back to the Article IIIs. How about some pro bono lawyers, clinical professors, and NGO leaders who combine scholarship with real life experience and whose proven creativity and problem solving skills far exceed the pedestrian and wooden approaches we see all too often from today’s failing Article III Judiciary. Although their efforts are mocked, disrespected, and undermined by complicit Article III Judges, like the “J.R. Five,” these courageous “defenders of democracy and the rights of the weak” are the ones who are in fact keeping our legal system afloat in the face of Article III willful ignorance and complicity in tyranny.

And, we definitely need fewer corporate lawyers (except those who have extensive pro bono immigration/human rights experience), prosecutors, and right wing “think tankers” occupying the Federal bench.We have an oversupply of those folks on the bench right now, and our rights are suffering for it. It will take years, perhaps decades, to repair the damage they are causing and to bring the Federal Judicial system back into a proper balance.

These aren’t “liberal/conservative philosophical questions.” They are black and white questions of moral courage and the willingness to enforce Due Process and protect those whose lives are endangered by the Trump regime’s cruel and lawless programs and constant racially-inspired lies, naked bias, and misrepresentations. Sending folks back to dangerous countries without functioning asylum systems is wrong as a matter of law. Period. Making them “Remain in Mexico” is wrong. Period. A so-called “court system” run by a transparently biased, disingenuous, “uber enforcement” official like Billy Barr does not provide the “fair and impartial adjudications” required by Due Process. Period. Separating families and putting kids in cages and “kiddie gulags” is wrong. Period. Those initiating and carrying out those policies should be chastised and held accountable, not enabled. Period.

Actually, many courageous and scholarly U.S. District Judges have gotten these straightforward legal questions exactly right and promptly entered life-saving injunctions. A number of U.S. Immigration Judges have also courageously adhered to the rule of law in the face of excruciating and unethical pressure from DOJ politicos and their toadies to cut corners and railroad individuals out of the country without due process.

It’s the Supremes and too many Circuit Court Judges who who have “rolled over” for the regime’s cruel and inhuman nonsense. By doing so, they essentially “pull the rug” out from under those judges who have the encourage and integrity to “just say no” to the regime’s constant overreach. In doing so, the Federal Appellate Courts and the Supremes are actually engaging in undermining the system they serve and encouraging “worst practices” and even worse results. What truly reprehensible “role models” for upcoming lawyers. Fortunately, many newer lawyers are members of the New Due Process Army and are ignoring the poor and immoral examples of judicial spinelessness set by their supposed “elders.”

Life tenure protects the jobs and paychecks of Article III Judges. But, it won’t protect them from justified criticism and the ultimate judgement of history. Bashing the oppressed in behalf of those in power might seem like a good short-term strategy. After all, the deported, the abused, and the dead don’t normally get to “write history.”

But others are watching this travesty unfold and are pledged to “give a voice” to those silenced by the gross dereliction of legal duties and ignoring simple human decency and values by many with power who could have put an end to these obscene human rights abuses. Chief Justice Roger Taney might have been hailed by the White Supremacists of his age for his opinion in Dred Scott. But, he hasn’t “weathered the test of time” too well! Nor will Chief Justice Roberts and others who have been “going along to get along” with cruel and illegal abuses wantonly inflicted by the White Nationalist regime on the most needy and vulnerable among us.

Congrats and much appreciation from all of us in the New Due Process Army to USCIS Asylum Officers for your courage and integrity in the face of tyranny!

Due Process Forever; Complicity & Enabling Cruelty Never!

PWS

03-09-20

FINALLY: SPLIT 9TH CIR PANEL ENTERS NATIONWIDE INJUNCTION AGAINST “LET ‘EM DIE IN MEXICO” A/K/A “MIGRANT ‘PROTECTION’ PROTOCOLS” — Innovation Law Lab v. Wolf

9thMPPInjunction

Innovation Law Lab v. Wolf, 9th Cir., 02-28-20, published

PANEL: Ferdinand F. Fernandez, William A. Fletcher, and Richard A. Paez, Circuit Judges.

OPINION BY: Judge William A. Fletcher

DISSENTING OPINION: Judge Ferdinand F. Fernandez

KEY QUOTE FROM MAJORITY:

In addition to likelihood of success on the merits, a court must consider the likelihood that the requesting party will

INNOVATION LAW LAB V. WOLF 49

suffer irreparable harm, the balance of the equities, and the public interest in determining whether a preliminary injunction is justified. Winter, 555 U.S. at 20. “When the government is a party, these last two factors merge.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).

There is a significant likelihood that the individual plaintiffs will suffer irreparable harm if the MPP is not enjoined. Uncontested evidence in the record establishes that non-Mexicans returned to Mexico under the MPP risk substantial harm, even death, while they await adjudication of their applications for asylum.

The balance of equities favors plaintiffs. On one side is the interest of the Government in continuing to follow the directives of the MPP. However, the strength of that interest is diminished by the likelihood, established above, that the MPP is inconsistent with 8 U.S.C. §§ 1225(b) and 1231(b). On the other side is the interest of the plaintiffs. The individual plaintiffs risk substantial harm, even death, so long as the directives of the MPP are followed, and the organizational plaintiffs are hindered in their ability to carry out their missions.

The public interest similarly favors the plaintiffs. We agree with East Bay Sanctuary Covenant:

On the one hand, the public has a “weighty” interest “in efficient administration of the immigration laws at the border.” Landon v. Plasencia, 459 U.S. 21, 34 (1982). But the public also has an interest in ensuring that “statutes enacted by [their] representatives”

50 INNOVATION LAW LAB V. WOLF

are not imperiled by executive fiat. Maryland v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J., in chambers).

932 F.3d at 779 (alteration in original).

VII. Scope of the Injunction

The district court issued a preliminary injunction setting aside the MPP—that is, enjoining the Government “from continuing to implement or expand the ‘Migrant Protection Protocols’ as announced in the January 25, 2018 DHS policy memorandum and as explicated in further agency memoranda.” Innovation Law Lab, 366 F. Supp. 3d at 1130. Accepting for purposes of argument that some injunction should issue, the Government objects to its scope.

We recognize that nationwide injunctions have become increasingly controversial, but we begin by noting that it is something of a misnomer to call the district court’s order in this case a “nationwide injunction.” The MPP operates only at our southern border and directs the actions of government officials only in the four States along that border. Two of those states (California and Arizona) are in the Ninth Circuit. One of those states (New Mexico) is in the Tenth Circuit. One of those states (Texas) is in the Fifth Circuit. In practical effect, the district court’s injunction, while setting aside the MPP in its entirety, does not operate nationwide.

For two mutually reinforcing reasons, we conclude that the district court did not abuse its discretion in setting aside the MPP.

INNOVATION LAW LAB V. WOLF 51

First, plaintiffs have challenged the MPP under the Administrative Procedure Act (“APA”). Section 706(2)(A) of the APA provides that a “reviewing court shall . . . hold unlawful and set aside agency action . . . not in accordance with law.” We held, above, that the MPP is “not in accordance with” 8 U.S.C. § 1225(b). Section 706(2)(A) directs that in a case where, as here, a reviewing court has found the agency action “unlawful,” the court “shall . . . set aside [the] agency action.” That is, in a case where § 706(2)(A) applies, there is a statutory directive—above and beyond the underlying statutory obligation asserted in the litigation—telling a reviewing court that its obligation is to “set aside” any unlawful agency action.

There is a presumption (often unstated) in APA cases that the offending agency action should be set aside in its entirety rather than only in limited geographical areas. “[W]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that rules are vacated—not that their application to the individual petitioners is proscribed.” Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F3d 476, 511 (9th Cir. 2018) (internal quotation marks omitted). “When a court determines that an agency’s action failed to follow Congress’s clear mandate the appropriate remedy is to vacate that action.” Cal. Wilderness Coalition v. U.S. Dep’t of Energy, 631 F.3d 1072, 1095 (9th Cir. 2011); see also United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019) (“The ordinary practice is to vacate unlawful agency action.”); Gen. Chem. Corp. v. United States, 817 F.2d 844, 848 (D.C. Cir. 1987) (“The APA requires us to vacate the agency’s decision if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .”).

52 INNOVATION LAW LAB V. WOLF

Second, cases implicating immigration policy have a particularly strong claim for uniform relief. Federal law contemplates a “comprehensive and unified” immigration policy. Arizona v. United States, 567 U.S. 387, 401 (2012). “In immigration matters, we have consistently recognized the authority of district courts to enjoin unlawful policies on a universal basis.” E. Bay Sanctuary Covenant, 932 F.3d at 779. We wrote in Regents of the University of California, 908 F.3d at 511, “A final principle is also relevant: the need for uniformity in immigration policy. . . . Allowing uneven application of nationwide immigration policy flies in the face of these requirements.” We wrote to the same effect in Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017), rev’d on other grounds, 138 S. Ct. 2392 (2018): “Because this case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights.” The Fifth Circuit, one of only two other federal circuits with states along our southern border, has held that nationwide injunctions are appropriate in immigration cases. In sustaining a nationwide injunction in an immigration case, the Fifth Circuit wrote, “[T]he Constitution requires ‘an uniform Rule of Naturalization’; Congress has instructed that ‘the immigration laws of the United States should be enforced vigorously and uniformly’; and the Supreme Court has described immigration policy as ‘a comprehensive and unified system.’” Texas v. United States, 809 F.3d 134, 187–88 (5th Cir. 2015) (emphasis in original; citations omitted). In Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017), we relied on the Fifth Circuit’s decision in Texas to sustain the nationwide scope of a temporary restraining order in an immigration case. We wrote, “[W]e decline to limit the geographic scope of the TRO. The Fifth Circuit has held that such a fragmented immigration policy would run afoul of the

INNOVATION LAW LAB V. WOLF 53 constitutional and statutory requirement for uniform

immigration law and policy.” Id. at 1166–67. Conclusion

We conclude that the MPP is inconsistent with 8 U.S.C. § 1225(b), and that it is inconsistent in part with 8 U.S.C. § 1231(b). Because the MPP is invalid in its entirety due to its inconsistency with § 1225(b), it should be enjoined in its entirety. Because plaintiffs have successfully challenged the MPP under § 706(2)(A) of the APA, and because the MPP directly affects immigration into this country along our southern border, the issuance of a temporary injunction setting aside the MPP was not an abuse of discretion.

We lift the emergency stay imposed by the motions panel, and we firm the decision of the district court.

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

At last, a breath of justice in halting, at least temporarily, an outrageously illegal program that is also a grotesque violation of our national values and humanity. Unfortunately, it has already resulted in thousands of injustices and damaged many lives beyond repair. That’s something that a clueless shill for authoritarianism, wanton cruelty, and abrogation of the rule of law like dissenting Judge Fernandez might want to think about.

But, hold the “victory dance.” The regime will likely seek “rehearing en banc,” appealing to other enablers of human rights atrocities like Fernandez. And, if the regime fails there, they always can “short circuit” the legal system applicable to everyone else by having Solicitor General Francisco ask his GOP buddies on the Supremes, “The JR Five,” to give the regime a free pass. As Justice Sotomayor pointed out, that type of “tilt” has already become more or less “business as usual” as the regime carries out its nativist, White Nationalist immigration agenda. Indeed, Justices Gorsuch and Thomas have already announced their eagerness to carry the regime’s water for them by doing away with nationwide injunctions, even though they are the sole way for doing justice in immigration cases like this.

But, at least for today, we can all celebrate a battle won by the New Due Process Army in the ongoing war to restore our Constitution, the rule of law, and human dignity.

Due Process Forever!

PWS

02-29-20

AMERICA’S HOMEGROWN TORTURERS: Physicians For Human Rights Confirms What Many of Us Have Been Saying For Years: Trump Regime Tortures Families With Children With Impunity!

https://www.theguardian.com/us-news/2020/feb/25/trump-family-separations-children-torture-psychology?CMP=Share_iOSApp_Other

Amanda Holpuch reports for The Guardian:

The trauma Donald Trump’s administration caused to young children and parents separated at the US-Mexico border constitutes torture, according to evaluations of 26 children and adults by the group Physicians for Human Rights (PHR).

The not-for-profit group’s report provides the first in-depth look at the psychological impact of family separation, which the US government continued despite warnings from the nation’s top medical bodies.

“As a clinician, nobody was prepared for this to happen on our soil,” the report co-author Dr Ranit Mishori, senior medical adviser at PHR, told the Guardian. “It is beyond shocking that this could happen in the United States, by Americans, at the instruction and direct intention of US government officials.”

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Legal experts have argued family separation constituted torture, but this is the first time a medical group has reached the determination.

PHR volunteer psychiatrists evaluated 17 adults and nine children who had been separated between 30 to 90 days. Most met the criteria for at least one mental health condition, including post-traumatic stress disorder, major depressive disorder or generalized anxiety disorder “consistent with, and likely linked to, the trauma of family separation”, according to the report.

Not only did the brutal family separation policy create trauma, it was intensified by the families’ previous exposure to violence on their journey to the US and in their home countries of Honduras, Guatemala and El Salvador.

All but two of the adults evaluated by PHR said they had received death threats in their home countries and 14 out of the 17 adults said they were targeted by drug cartels. All were fearful their child would be harmed or killed if they remained at home.

Almost all the children had been drugged, kidnapped, poisoned or threatened by gangs before they left. One mother told investigators she moved her daughter to different schools in El Salvador several times so gang members couldn’t find her and kill her.

In the face of these threats, parents tried to move within the country, change their phone numbers, meet extortion demands and go silent on social media. Ultimately, however, the report said: “Parents were confident that the journey to the United States would result in protection for their children.”

This is not what happened at the border.

The Trump administration instituted a policy in April 2018 that formally enabled the mass separation of children and parents at the US-Mexico border. Trump ended the policy in June 2018, but it has since been revealed that the administration separated thousands of families before and after the policy was in place.

There was also no system to reunite the families, according to an internal government watchdog. The Trump administration also ignored warnings from the nation’s leading medical organizations that family separation would traumatize children and adults.

How Trump’s immigration policies hurt people’s lives – in pictures

People who experience trauma, especially as children, have higher rates of medical conditions such as cancer and cardiovascular disease. They also have an increased risk of psychiatric disorders and detrimental coping behaviors such as alcohol and drug abuse.

“Something like that does not just resolve once you’re reunified with your parents, it’s something you carry with you possibly forever,” Mishori said.

One Honduran father described how badly his son reacted the four times a psychologist came to their apartment for treatment in the report: “Each time the son would refuse to cooperate and would throw things at the therapist … It appears his son was afraid of strangers, afraid they will take him away from his father.”

Kathryn Hampton, a senior officer in PHR’s asylum program, said the group PHR had assessed was small but represented separated families from different detention centers and foster homes across the country over a two-year period.

“This is a really disparate group of people and yet their stories are practically identical,” said Hampton. “So that’s very disturbing, to see that level of consistency.”

Amid the despair, PHR has seen an outpouring of support in money and volunteers. Hampton said since the beginning of 2018, its Asylum Network had more than doubled to 1,700 clinicians who provide free medical and psychological evaluations to asylum seekers. There were also three times as many medical school clinics partnering with the organization in that period.

Dr Stuart Lustig, a California-based psychiatrist and longtime volunteer, evaluated a seven-year-old girl from Guatemala. He said when he and the girl did a common evaluation tool called the Squiggle Test, she had one of the more inhibited reactions he had seen in 20 years.

“These kinds of separations were filled with uncertainty, there was no information about where people are going, so it is not surprising at all that these separations ended up being extremely traumatizing for kids and parents,” Lustig said.

In November, a federal court ordered the US to compensate for the trauma separated families faced at the hands of the government. Lustig said there were many treatment options for children who experienced this deep level of trauma in the US, but he and PHR were concerned about how these families would have access to them.

Lustig said: “Part of the work is simply building trust in humanity again.”

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We are diminishing ourselves as a nation; but, in the end, it won’t stop human migration. While the purpose of torture is dehumanization and degradation of the “other,” torture actually increases the humanity of its victims while dehumanizing the torturers and their enablers.

It’s also worthy remembering the next time “Big Mac With Lies,” Nielsen, Kelly, ”Gonzo” Sessions and other noted torturers want to “clean up their images” and capitalize on their misdeeds by speaking to an organization to which you belong or attend. Remember who they REALLY are beneath their facades: unpunished perpetrators of “Crimes Against Humanity.”

PWS

02-26-20

COMPLICITY WATCH: Justice Sonia Sotomayor Calls Out “Men In Black” For Perverting Rules To Advance Trump/Miller White Nationalist Nativist Immigration Agenda!

Mark Joseph Stern
Reporter, Slate

https://slate.com/news-and-politics/2020/02/sotomayor-trump-wealth-test-bias-dissent.html

Mark Joseph Stern reports for Slate:

. . . .

Put simply: When some of the most despised and powerless among us ask the Supreme Court to spare their lives, the conservative justices turn a cold shoulder. When the Trump administration demands permission to implement some cruel, nativist, and potentially unlawful immigration restrictions, the conservatives bend over backward to give it everything it wants. There is nothing “fair and balanced” about the court’s double standard that favors the government over everyone else. And, as Sotomayor implies, this flagrant bias creates the disturbing impression that the Trump administration has a majority of the court in its pocket.

Read the full article at the above link.

Here’s a link to Justice Sotomayor’s full dissent in Wolf v. Cook County:

SotomayorPublicChargeDissetn19a905_7m48

Justice Sonia Sotomayor

Here’s a “key quote” from Justice Sotomayor’s dissent:

These facts—all of which undermine the Government’s assertion of irreparable harm—show two things, one about the Government’s conduct and one about this Court’s own. First, the Government has come to treat “th[e] exceptional mechanism” of stay relief “as a new normal.” Barr v. East Bay Sanctuary Covenant, 588 U. S. ___, ___ (2019) (SOTOMAYOR, J., dissenting from grant of stay) (slip op., at 5). Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming lim- ited Court resources in each. And with each successive ap- plication, of course, its cries of urgency ring increasingly hollow. Indeed, its behavior relating to the public-charge

6 WOLF v. COOK COUNTY SOTOMAYOR, J., dissenting

rule in particular shows how much its own definition of ir- reparable harm has shifted. Having first sought a stay in the New York cases based, in large part, on the purported harm created by a nationwide injunction, it now disclaims that rationale and insists that the harm is its temporary inability to enforce its goals in one State.

Second, this Court is partly to blame for the breakdown in the appellate process. That is because the Court—in this case, the New York cases, and many others—has been all too quick to grant the Government’s “reflexiv[e]” requests. Ibid. But make no mistake: Such a shift in the Court’s own behavior comes at a cost.

Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timeta- bles and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay. (Here, the Government touts that in granting a stay in the New York cases, this Court “necessarily concluded that if the court of appeals were to uphold the preliminary injunctio[n], the Court likely would grant a petition for a writ of certiorari” and that “there was a fair prospect the Court would rule in favor of the govern- ment.” Application 3.) They demand extensive time and resources when the Court’s intervention may well be unnec- essary—particularly when, as here, a court of appeals is poised to decide the issue for itself.

Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions—where the risk of ir- reparable harm is the loss of life—to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Mur- phy v. Collier, 587 U. S. ___, ___ (2019) (second statement of KAVANAUGH, J.) (slip op., at 4); see also id., at ___ (ALITO, J., joined by THOMAS and GORSUCH, JJ., dissenting from grant of stay) (slip op., at 6) (“When courts do not have ad- equate time to consider a claim, the decisionmaking process may be compromised”); cf. Dunn v. Ray, 586 U. S. ___ (2019) (overturning the grant of a stay of execution). Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances— where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decision making process that this Court must strive to protect.

I respectfully dissent.

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

Of course, the regime’s use of manufactured and clearly bogus “national emergencies” or fake appeals to “national security” is a perversion of both fact and law, as well as a mocking of Constitutional separation of powers. This obscenely transparent legal ruse essentially was invited by the Roberts and his GOP brethren. Roberts somewhat disingenuously claims to be a “student of history.” But, whether he takes responsibility for it or not, he has basically invited Trump & Miller to start a new “Reichstag Fire” almost every week with migrants, asylum seekers, Latinos, and the less affluent as the “designated usual suspects.”

Powerful as her dissent is, Justice Sotomayor actually understates the case against her GOP colleagues. Every racist, White Nationalist, nativist, and/or authoritarian movement in American history has been enabled, advanced, and protected by morally corrupt and intellectually dishonest jurists who have intentionally provided “legal cover” for those official misdeeds. How about “states rights,” “separate but equal,” “plenary power,” and a host of other now discredited legal doctrines used to justify everything from slavery to denying voting, and other Constitutional rights including life itself to African Americans? They were all used to “cover” for actions that might more properly have been considered “crimes against humanity.”

Who knows what legal blather Roberts and his four fellow rightist toadies will come up with to further promote the destruction of humanity and the disintegration of American democracy at the hands of Trump, Miller, Barr, Putin, and the rest of the gang?

But, courageous “outings” like those by Justice Sotomayor will help insure that history will be able to trace the bloody path of needless deaths, ruined lives, wasted human potential, official hate mongering, and unspeakable human misery they are unleashing directly to their doors and hold them accountable in a way that our current system has disgracefully failed to do.

Trump was right about at least one thing: There are indeed “GOP Justices” on the Supremes wholly owned by him and his party. They consistently put GOP rightist ideology and and authoritarianism above the Constitution, human rights, the rule of law, intellectual honesty, and simple human decency. Other than that, they’re a “great bunch of guys!”

Due Process Forever; Complicit Courts Never!

PWS

02-22-20

STATUE OF LIBERTY DENIER “COOCH COOCH,” “WOLFMAN,” & OTHER DHS SCOFFLAWS HELD IN CONTEMPT BY U.S. JUDGE – Regime Actually Deported Kids Found Eligible For Relief, In Violation Of Court Order!

https://apple.news/AR_Xf6D4ER7qUHL9_TRSjBA

Reported by AP:

Judge finds US in contempt after immigrants in suit deported

A federal judge has found the U.S. government in contempt after authorities deported five young immigrants who were seeking to remain in the country under a program for abused and neglected immigrant children.

U.S. Magistrate Judge Nathanael Cousins issued the civil order Friday after finding the Department of Homeland Security and U.S. Citizenship and Immigration Services violated a 2018 preliminary injunction that required them to notify lawyers of any enforcement action against the young immigrants in a class-action lawsuit in California.

Despite the preliminary injunction, five immigrants who were seeking to stay in the United States under a federal government program for abused immigrant children were deported, and one of them was reportedly assaulted.

Mary Tanagho Ross, appellate staff attorney at Public Counsel’s Immigrants’ Rights Project, said she learned of the deportations months after one of the immigrants was back in Guatemala, where he was attacked by gang members.

“It is shocking the defendants didn’t do their part to make sure ICE complied with a federal court order and they literally sent kids back to the lion’s den,” she said Wednesday.

A Department of Justice spokesman declined to comment on the case.

The lawsuit was settled last year between the U.S. government and lawyers for immigrants who sought to be covered by the program after they turned 18. Applications are allowed until age 21.

Tanagho Ross said she would never have learned of the deportations but for another lawyer who mentioned one of his clients had applied for the program, which leads to a green card, but got deported after losing a case for asylum.

The court ordered the agencies to return the five immigrants to the United States by Feb. 29 so long as they want to come back, and pay $500 for each day after that each one remains out of the country.

One of them has already been returned and is in the custody of Immigration and Customs Enforcement, which plans to send him back to Guatemala in another two weeks now that the lawyers have been notified, the U.S. government said in a court filing.

His application to the program for abused children has been approved but he will likely have to wait more than two years for a green card due to a cap on the number allowed to be issued each year, the government said.

Tanagho Ross said attorneys will seek to block his deportation.

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

From the Judge’s order:

Defendants’ violation of the preliminary injunction is especially concerning. Beyond Defendants’ basic failure to comply with a Court’s order, Defendants removed class members that had been abused, neglected, or abandoned in their countries of origin. And instead of notifying Plaintiffs’ counsel of those removals as ordered by the Court, Defendants remained silent until Plaintiffs’ counsel discovered those violations themselves six months after the first removal.

Accordingly, the Court now holds all Defendants—Kenneth T. Cuccinelli, Chad F. Wolf, Robert M. Cowan, United States Department of Homeland Security, and United States Citizenship and Immigration Services—in civil contempt.

Here’s a copy of the complete court order:

ImmigrationOrder Granting contemptagainstgovtofficials

So, just why would we be spending taxpayer money to remove abused children who had already been found eligible for relief to the countries where they would again be abused, just because “no number was available” at the moment? Are “numbers” really more important than human lives? Why would the Government spend taxpayer money “defending the indefensible” rather than just confessing error and apologizing to the plaintiffs and to the judge? Why aren’t DOJ lawyers working for Barr and defending regime scofflaws held to the same ethical standards as lawyers in private practice?

Prior to this regime, DHS counsel routinely stipulated to stays or “administrative closing” of cases like this. If they hadn’t, most Immigration Judges would have ordered the cases closed, terminated “without prejudice,” or continued. Why have sensible legal practices that promoted docket efficiency, reasonableness, and humanity been intentionally abandoned? Obviously it’s “malicious incompetence” as practiced by DHS & DOJ management in this regime that has ballooned the Immigration Court backlog to over 1.3 million cases and still growing. Whatever happened to responsible Government in the public interest?

One of those most responsible for this breakdown in legal ethics and fundamental fairness is former Attorney General Jeff “Gonzo Apocalypto” Sessions who illegally and unethically did away with “administrative closing.” Yet “Gonzo” walks the streets, even having the audacity to run for the Senate again, while his victims and our legal system suffer. (Sessions was the “mastermind” of the unconstitutional “family separation” fiasco that even years later is still traumatizing innocent families for the “crime” of seeking legal protection under our laws.) What’s wrong with a system that lets corrupt, immoral individuals like Sessions escape accountability and publicly tout, even seek to benefit from, their “crimes against humanity?”

This is the second time recently that Article III Federal Judges have found Trump regime employees to be basically in contempt of their orders. When are Federal Judges going to start sending some of these folks to jail and referring Barr, “Cooch Cooch,” and the DOJ lawyers who continue to obfuscate and frivolously defend the indefensible to the appropriate bar (not Barr) authorities for license revocation?

PWS

02-20-20

GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators & Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”

Fernanda Echavarri
Reporter
Mother Jones

https://apple.news/AyKjNs5gOQJqIJ2_IeeQvcg

Fernanda Echavarri reports for Mother Jones:

“A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts

SAN DIEGO IMMIGRATION COURT, COURTROOM #2;
PRESIDING: JUDGE LEE O’CONNOR

Lee O’Connor has been in his courtroom for all of two minutes before a look of annoyance washes over his face.

Eleven children and six adults—all of them from Central America, all of them in court for the first time—sit on the wooden benches before him. They’ve been awake since well before dawn so they could line up at the US-Mexico border to board government buses headed to immigration court in downtown San Diego, Kevlar-vested federal agents in tow. Like the dozens of families jam-packed into the lobby and the six other courtrooms, they’ve been waiting out their asylum cases in Mexico, often for months, as part of the Trump administration’s controversial border policy, the Migrant Protection Protocols.

O’Connor has a docket full of MPP cases today, like every day. Before he gets to them, though, he quickly postpones a non-MPP case to January 2021, explaining to a man and his attorney that he simply doesn’t have time for them today, motioning to the families in the gallery. While he’s doing this, the little girl in front of me keeps asking her mom if she can put on the headphones that play a Spanish translation of the proceedings. A guard motions the little girl to be quiet.

For months, immigration attorneys and judges have been complaining that there’s no fair way to hear the cases of the tens of thousands of Central Americans who have been forced to remain on the Mexican side of the border while their claims inch through the courts. MPP has further overwhelmed dockets across the country and pushed aside cases that already were up against a crippling backlog that’s a million cases deep, stranding immigration judges in a bureaucratic morass and families with little hope for closure anytime in the near future.

I went last month to San Diego—home to one of the busiest MPP courts, thanks to its proximity to Tijuana and the more than 20,000 asylum seekers who now live in shelters and tent cities there—expecting to see logistical chaos. But I was still surprised at how fed up immigration judges like O’Connor were by the MPP-driven speedup—and by the extent to which their hands were tied to do anything about it.

Once O’Connor is done rescheduling his non-MPP case, he leans forward to adjust his microphone, rubs his forehead, and starts the group removal hearing. The interpreter translates into Spanish, and he asks if the adults understand. “SÃ,” they say nervously from the back of the courtroom. O’Connor goes down his list, reading their names aloud with a slight Spaniard accent, asking people to identify themselves when their names are called. He reprimands those who do not speak up loud enough for him to hear.

O’Connor, who was appointed to the bench in 2010, is known for being tough: Between 2014 and 2019, he has denied 96 percent of asylum cases. He explains to the migrants that they have the right to an attorney, although one will not be provided—there are no public defenders in immigration court. O’Connor acknowledges finding legal representation from afar is difficult, but he tells them it’s not impossible. He encourages them to call the five pro bono legal providers listed on a sheet of paper they received that day. The moms sitting in front of me have their eyes locked on the Spanish interpreter, trying to absorb every bit of information. Their kids try their best to sit quietly.

As he thumbs through the case files, O’Connor grows increasingly frustrated: None of them has an address listed. “The government isn’t even bothering to do this,” he grumbles. The documents for MPP cases list people’s addresses as simply “Domicilio Conocido,” which translates to “Known Address.” This happens even when people say they can provide an address to a shelter in Mexico or when they have the address of a relative in the United States who can receive their paperwork. “I’ve seen them do this in 2,000 cases since May,” O’Connor says, and the Department of Homeland Security “hasn’t even bothered to investigate.” He looks up at the DHS attorney with a stern look on his face, but she continues shuffling paperwork around at her desk.

O’Connor picks up a blue form and explains to the group that they have to change their address to a physical location. The form is only in English; many of the adults seem confused and keep flipping over their copies as he tells them how to fill it out. O’Connor tells them they have to file within a week—perhaps better to do it that day, he says—but it’s unclear to me how they could follow his exacting instructions without the help of an attorney. He points out other mistakes in the paperwork filed by DHS and wraps up the hearing after about 45 minutes. The families don’t know that’s typical for a first hearing and seem perplexed when it ends.

O’Connor schedules the group to come back for their next hearing in five weeks at 8:30 a.m. That will mean showing up at the San Ysidro port of entry at 4:30 a.m.; the alternative, he says, is being barred from entering the United States and seeking forms of relief for 10 years. “Do you understand?” he asks. The group responds with a hesitant “SÃ.”

The Trump administration designed MPP to prevent people like them from receiving asylum, and beyond that, from even seeking it in the first place. First implemented in San Diego in late January 2019 to help stem the flow of people showing up at the southern border, the policy has since sent somewhere between 57,000 and 62,000 people to dangerous Mexican cities where migrants have been preyed upon for decades. Their cases have been added to an immigration court that already has a backlog of 1,057,811 cases—up from 600,000 at the time when Obama left office—according to data obtained by the Transactional Records Access Clearinghouse at Syracuse University.

The skyrocketing immigration court backlog

View on the original site.

According to immigration judge Ashley Tabaddor, who spoke to me in her capacity as union president of the National Association of Immigration Judges, MPP has constituted a fundamental change to the way courts are run. DHS, she says, is “creating a situation where they’re physically, logistically, and systematically creating all the obstacles and holding all the cards.” The MPP program has left the court powerless, “speeding up the process of dehumanizing the individuals who are before the court and deterring anyone from the right to seek protection” All this while the Department of Justice is trying to decertify Tabbador’s union—the only protection judges have, and the only avenue for speaking publicly about these issues—by claiming its members are managers and no longer eligible for union membership. Tabaddor says the extreme number of cases combined with the pressure to process them quickly is making it difficult for judges to balance the DOJ’s demands with their oath of office.

Immigration attorneys in El Paso, San Antonio, and San Diego have told me they are disturbed by the courtroom disarray: the unanswered phones, unopened mail, and unprocessed filings. Some of their clients are showing up at border in the middle of the night only to find that their cases have been rescheduled. That’s not only unfair, one attorney told me, “it’s dangerous.” Central Americans who speak only indigenous languages are asked to navigate court proceedings with Spanish interpreters. One attorney in El Paso had an 800-page filing for an asylum case that she filed with plenty of time for the judge to review, but it didn’t make it to the judge in time.

As another lawyer put it, “The whole thing is a fucking disaster that is designed to fail.”

Guillermo Arias/Getty People line up at the San Ysidro border crossing in Tijuana in May 2019.

COURTROOM #4; PRESIDING: JUDGE PHILIP LAW

Down the hall, a Honduran woman I’ll call Mari stands up next to her attorney and five-year-old son, raises her right hand, and is sworn in.

Mari’s hearing isn’t much of a hearing at all. Stephanie Blumberg, an attorney with Jewish Family Service of San Diego, who is working the case pro bono, asks for more time because she only recently took the case; Judge Philip Law says he will consolidate the cases of mother and child into one; and he schedules her next hearing for the following week at 7:30 a.m., with a call time of 3:30 a.m. at the border.

Just as it’s about to wrap up, Bloomberg says her client is afraid to return to Mexico. “I want to know what is going to happen with me. I don’t want to go back to Mexico—it’s terrible,” Mari says in Spanish, an interpreter translating for the judge. “I have no jurisdiction over that,” Law says. “That’s between you and the Department of Homeland Security.” Law then turns to the DHS attorney, who says he’ll flag the case and “pass it along.”

While nine families begin their MPP group hearing, Mari tells me back in the waiting room that she and her son crossed the border in Texas and then asked for asylum. They were detained for two days and then transported by plane to San Diego, where she was given a piece of paper with a date and time for court and then released in Tijuana. She didn’t know anyone, barely knew where she was, and, trying to find safety in numbers, stuck with the group released that day. Two days after US immigration officials sent her to Tijuana, she was raped.

Mari’s voice gets shaky, and she tries to wipe the tears from her eyes, but even the cotton gloves she’s wearing aren’t enough to keep her face dry. I tell her we can end the conversation and apologize for making her relive those moments. She looks at her son from across the room and says she’d like to continue talking.

“I thought about suicide,” she whispers. “I carried my son and thought about jumping off a bridge.” Instead, she ended up walking for a long time, not knowing what to do or what would happen to them because they didn’t have a safe place to go.

“I haven’t talked to my family back home—it’s so embarrassing because of the dream I had coming here, and now look,” she says. “We’re discriminated against in Mexico; people make fun of us and the way we talk.” Her boy was already shy but has become quieter and more distrusting in recent months.

In the last year, I’ve spoken to dozens of migrants in border cities like Ciudad JuÃ¡rez and Tijuana who share similarly horrific stories. Human Rights First has tracked more than 800 public reports of torture, kidnapping, rape, and murder against asylum seekers sent to Mexico in the last year. A lawsuit brought by the American Civil Liberties Union, Southern Poverty Law Center, and Center for Gender and Refugee Studies is challenging MPP on the grounds that it violates the Immigration and Nationality Act, and the “United States’ duty under international human rights law” not to return people to dangerous conditions.

“The system has not been set up to handle this in any way,” says Kate Clark, senior director of immigration services with Jewish Family Service of San Diego, one of the groups listed on the pro bono sheet Judge O’Connor handed out earlier in the day. They’re the only ones with a WhatsApp number listed, and their phones are constantly ringing because “it’s clear that people don’t know what’s going on or what to expect—and they’re in fear for their lives,” Clark says. Still, her 8-person team working MPP cases can only help a small percentage of the people coming through the courtroom every day.

Later that afternoon, shortly after 5, two large white buses pull up to the court’s loading dock. Guards in green uniforms escort about 60 people out from the loading dock. Moms, dads, and dozens of little kids walk in a straight light to get on a bus. They are driven down to the border and sent back to Tijuana later that night.

A few days later, Mari’s attorney tells me that despite raising a fear of retuning to Mexico in court, US port officials sent Mari back to Tijuana that night.

COURTROOM #2; PRESIDING: JUDGE LEE O’CONNOR

I find myself back in O’Connor’s courtroom for his afternoon MPP hearings. This time, the only people with legal representation is a Cuban family who crossed in Arizona in July 2019 and turned themselves in to Border Patrol agents. This is their first time in court, and their attorney calls in from out of state.

Right away, O’Connor wants to address a different kind of clerical error from the one that bothered him earlier in the day—and one that he thinks matters even more. It involves the first document that DHS issues to “removable” immigrants, known as a Notice to Appear (NTA) form. Although the form allows agents to check a box to categorize people based on how they encountered immigration officials, O’Connor points out that in this case it was left blank—and that “this is fairly typical of the overwhelming majority of these cases.”

He isn’t the first or only judge to notice this; I heard others bring up inconsistent and incomplete NTAs. Border officials are supposed to note on the form if the people taken into custody are “arriving aliens,” meaning they presented at the port of entry asking for asylum, or “aliens present in the United States who have not been admitted or paroled,” meaning they first entered illegally in between ports of entry. Thousands of MPP cases have forms without a marked category. As far as O’Connor is concerned, that’s a crucial distinction. He believes that this Trump administration policy shouldn’t apply to people who entered the country without authorization—meaning countless immigrants who applied for MPP should be disqualified from the get-go.

In the case of the Cuban family, like dozens more that day, the DHS attorney filed an amended NTA classifying them as “arriving aliens.” O’Connor points out is not how they entered the United States. The DHS attorney is unphased by the judge’s stern tone and came prepared with piles of new forms for the other cases of incomplete NTAs. The family’s lawyer says maybe the government made a mistake. O’Connor, unsatisfied, interrupts her: “There was no confusion. I’ve seen 2,000 of theseâ¦the government is not bothering to spend the time.” After a lengthy back-and-forth, a testy O’Connor schedules the family to come back in three weeks.

O’Connor’s stance and rulings on this issue have broader implications. He terminated a case in October because a woman had entered the country illegally before turning herself in and wrote in his decision that DHS had “inappropriately subjected respondent to MPP.” He is among the loudest voices on this issue, saying that MPP is legal only when applied to asylum-seekers presenting at legal ports of entry—though it’s unclear to many lawyers what it might mean for their clients to have their cases terminated in this way. Would these asylum seekers end up in immigration detention facilities? Would they be released under supervision in the United States? Would they be deported back to their home countries?

Since MPP cases hit the courts last March, asylum attorneys have been critical of DHS for not answering these questions. I was present for the very first MPP hearing in San Diego and saw how confused and frustrated all sides were that DHS didn’t seem to have a plan for handling these cases. Now, almost a year later, little has changed.

Tabaddor, the union president, tells me that “there are definitely legal issues that the MPP program has presented” and that judges are having to decide whether the documents “are legally sufficient.” “The issue with DHS—frankly, from what I’ve heard—is that it seems like they’re making it up as they go,” she says.

Last week, Tabaddor testified in front of the House Judiciary Committee and for the independence of immigration courts from the political pressures of federal law enforcement. There are approximately 400 immigration judges across more than 60 courts nationwide, and almost half of those judges have been appointed during the Trump era. (According to a recent story in the Los Angeles Times, dozens of judges are quitting or retiring early because their jobs have become “unbearable” under Trump.)

California Democrat Zoe Lofgren, an immigrants’ rights supporter in Congress, argued during the hearing that the immigration courts are in crisis and the issue requires urgent congressional attention. “In order to be fully effective, the immigration court system should function just like any other judicial institution,” she said. “Immigration judges should have the time and resources to conduct full and fair hearings, but for too long, the courts have not functioned as they should—pushing the system to the brink.”

Guillermo Arias/Getty Asylum seekers in Tijuana in October

COURTROOM #1; PRESIDING: JUDGE SCOTT SIMPSON

“I don’t want any more court,” a woman from Guatemala pleads just before lunchtime. “No more hearings, please.”

Unlike many of the people who were there for their first hearing when I observed court in San Diego, this woman has been to court multiple times since mid-2019. No matter how hard she tried, she couldn’t find a lawyer, she tells Judge Scott Simpson. She’s had enough.

“We’ve reached a fork on the road, ma’am,” Simpson says in a warm, calm tone. “You either ask for more time for an attorney to help you or you represent yourself.”

“No, it’d be a loss since I don’t know anything about the law,” the woman responds, her voice getting both louder and shakier. Simpson explains to her again the benefits of taking time to find an attorney.

“It’s been almost a year. I don’t want to continue the case. I want to leave it as is,” she tells him. After more explanation from the judge, the woman says she’d like to represent herself today so that decisions can be made. Simpson asks what she would like to do next, and the woman says, “I want you to end it.”

This woman’s pleas are increasingly common. Tabaddor says MPP has taken “an already very challenging situation and [made] it exponentially worse.” The new reality in immigration courts “is logistically and systematically designed to just deter people from seeking or availing themselves of the right to request protection,” Tabaddor says.

After hearing the Guatemalan woman ask for the case to be closed multiple times, Simpson takes a deep breath, claps his hands, and says there are four options: withdrawal, administrative close, dismissal, or termination. He explains each one, and after 10 minutes the woman asks for her case to be administratively closed. The DHS attorney, however, denies that request. Simpson’s hands are tied.

The judge tells the woman that because DHS filed paperwork on her case that day, and because it’s only in English, that he’s going to give her time to review it, because “as the judge I don’t think it would be fair for you to go forward without the opportunity to object to that.” He schedules her to come back in a month.

“MPP is not a program I created,” he says. “That decision was made by someone else.”

Additional reporting by Noah Lanard.

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

“Malicious incompetence,” “Aimless Docket Reshuffling,” “Man’s Inhumanity to Man” — it’s all there on public display in this deadly “Theater of the Absurd.”

Here, from a recent Human Rights Watch report on over 200 of those illegally returned to El Salvador without Due Process and in violation of the rule of law:

138 Killed;

70 Sexually abused, tortured, or otherwise harmed.

Here is the HRW report as posted on Courtside:

https://immigrationcourtside.com/2020/02/06/how-americas-killer-courts-promote-crimes-against-humanity-human-rights-watch-trump-his-white-nationalist-sycophants-toadies-tout-lawless-policies-that-violate-legal-obligations-he/

Where, oh where, has our humanity and human decency gone?

And, how do spineless jurists on Article III Courts who continue to “rubber stamp” and overlook the disgraceful abrogation of Due Process and fundamental fairness going on in a grotesquely biased and mismanaged “court system” controlled by a White Nationalist, nativist regime look at themselves in the mirror each morning. Maybe they don’t.

Abuse of the most vulnerable among us might seem to them to be “below the radar screen.” After all, their victims often die, disappear, or are orbited back to unknown fates in dangerous foreign lands. Out of sign, out of mind! But, what if it were their spouses, sons, and daughters sent to Tijuana to be raped while awaiting a so-called “trial.”

Rather than serving its intended purpose, promoting courage to stand up against government tyranny and to defend the rights of individuals, even the downtrodden and powerless, against Government abuse of the law, life tenure has apparently become something quite different. That is, a refuge from accountability and the rules of human decency.

John Roberts, his “Gang of Five,” and the rest of the Article III enablers will escape any legal consequences for their actions and, perhaps more significant, inactions in the face of unspeakable abuses of our Constitution, the rule of law, intellectual honesty, and the obligations we owe to other human beings.

How about those cowardly 9th Circuit Judges who ignored the law, betrayed human decency, and enabled rapes, killings, and other “crimes against humanity” by “green lighting” the unconstitutional and clearly illegal “MPP” — better known as “Let ‘Em Die in Mexico” with their absurdist legal gobbledygook in Innovation Law Lab v. McAleenan. They are enjoying life in the ivory tower while their human victims are suffering and dying.

But, folks like Fernanda and many others are recording their abuses which will live in history and infamy, will forever tarnish their records, and be a blot on their family names for generations to come.

There is no excuse for what is happening at our borders and in our Immigration Courts today. Constantly Confront Complicit Courts 4 Change! Flood the Article IIIs with examples and constant reminders of their handiwork and dereliction of duty! Let the bodies pile up on their collective doorsteps until the stench is so great that even they can no longer ignore and paper over their own complicity and moral responsibility with legal banalities. Force them to see their own faces and the faces of their loved ones in the scared, tormented faces and ruined lives of those destroyed by our scofflaw regime and its enablers.

Also, if you haven’t already done so, tell your Congressional representatives that you have had enough of this grotesque circus!

Here’s what I wrote to my legislators, and some from other states, recently:

I hope you will also speak out frequently against the grotesque abuses of human rights, Due Process, and human decency, not to mention the teachings of Jesus Christ and almost all other religious traditions, that the Trump Administration is carrying out against refugees of color, many of them desperate and vulnerable women and children, at our Southern Border.

Additionally, under Trump, the U.S. Immigration Courts, absurdly and unconstitutionally located within a politically biased U.S. Department of Justice, have become a mockery of justice, Due Process, and fundamental fairness. I urge you to join with other legislators in abolishing the current failed (1.1 million case backlog) and unfair system and replacing it with an independent Article I U.S. Immigration Court. It’s time to end the abuse! This must be one of our highest national priorities.

I invite you and your staff to read more about the grotesque abuses of law, human rights, and fundamental human decency being committed daily on migrants and other vulnerable humans by the Trump Administration in my blog: immigrationcourtside.com, “The Voice of the New Due Process Army.” This is not the America I knew and proudly served for more than three decades as a Federal employee.

Due Process Forever; Trump’s Perverted View of America Never!

Thanks again.

With my appreciation and very best wishes,

Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Adjunct Professor, Georgetown Law

Due Process Forever; Complicit Courts & Feckless Legislators, Never!

PWS

02-07-20

HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations!

https://www.hrw.org/report/2020/02/05/deported-danger/united-states-deportation-policies-expose-salvadorans-death-and

February 5, 2020

Deported to Danger

United States Deportation Policies Expose Salvadorans to Death and Abuse

Summary

February 5, 2020

US: Deported Salvadorans Abused, Killed

Stop Deporting Salvadorans Who Would Face Risks to Their Safety, Lives

The US government has deported people to face abuse and even death in El Salvador. The US is not solely responsible—Salvadoran gangs who prey on deportees and Salvadoran authorities who harm deportees or who do little or nothing to protect them bear direct responsibility—but in many cases the US is putting Salvadorans in harm’s way in circumstances where it knows or should know that harm is likely.

Of the estimated 1.2 million Salvadorans living in the United States who are not US citizens, just under one-quarter are lawful permanent residents, with the remaining three-quarters lacking papers or holding a temporary or precarious legal status. While Salvadorans have asylum recognition rates as high as 75 percent in other Central American nations, and 36.5 percent in Mexico, the US recognized just 18.2 percent of Salvadorans as qualifying for asylum from 2014 to 2018. Between 2014-2018, the US and Mexico have deported about 213,000 Salvadorans (102,000 from Mexico and 111,000 from the United States).

No government, UN agency, or nongovernmental organization has systematically monitored what happens to deported persons once back in El Salvador. This report begins to fill that gap. It shows that, as asylum and immigration policies tighten in the United States and dire security problems continue in El Salvador, the US is repeatedly violating its obligations to protect Salvadorans from return to serious risk of harm.

Some deportees are killed following their return to El Salvador. In researching this report, we identified or investigated 138 cases of Salvadorans killed since 2013 after deportation from the US. We found these cases by combing through press accounts and court files, and by interviewing surviving family members, community members, and officials. There is no official tally, however, and our research suggests that the number of those killed is likely greater.

Though much harder to identify because they are almost never reported by the press or to authorities, we also identified or investigated over 70 instances in which deportees were subjected to sexual violence, torture, and other harm, usually at the hands of gangs, or who went missing following their return.

In many of these more than 200 cases, we found a clear link between the killing or harm to the deportee upon return and the reasons they had fled El Salvador in the first place. In other cases, we lacked sufficient evidence to establish such a link. Even the latter cases, however, show the risks to which Salvadorans can be exposed upon return and the importance of US authorities giving them a meaningful opportunity to explain why they need protection before they are deported.

The following three cases illustrate the range of harms:

In 2010, when he was 17, Javier B. fled gang recruitment and his particularly violent neighborhood for the United States, where his mother, Jennifer B., had already fled. Javier was denied asylum and was deported in approximately March 2017, when he was 23 years old. Jennifer said Javier was killed four months later while living with his grandmother: “That’s actually where they [the gang, MS-13 (or Mara Salvatrucha-13)] killed him.… It’s terrible. They got him from the house at 11:00 a.m. They saw his tattoos. I knew they’d kill him for his tattoos. That is exactly what happened.… The problem was with [the gang] MS [-13], not with the police.” (According to Human Rights Watch’s research, having tattoos may be a source of concern, even if the tattoo is not gang-related).

In 2013, cousins Walter T. and Gaspar T. also fled gang recruitment when they were 16 and 17 years old, respectively. They were denied asylum and deported by the United States to El Salvador in 2019. Gaspar explained that in April or May 2019 when he and Walter were sleeping at their respective homes in El Salvador, a police patrol arrived “and took me and Walter and three others from our homes, without a warrant and without a reason. They began beating us until we arrived at the police barracks. There, they held us for three days, claiming we’d be charged with illicit association (agrupaciones ilícitas). We were beaten [repeatedly] during those three days.”

In 2014, when she was 20, Angelina N. fled abuse at the hands of Jaime M., the father of her 4-year-old daughter, and of Mateo O., a male gang member who harassed her repeatedly. US authorities apprehended her at the border trying to enter the US and deported her that same year. Once back in El Salvador, she was at home in October 2014, when Mateo resumed pursuing and threatening her. Angelina recounted: “[He] came inside and forced me to have sex with him for the first time. He took out his gun.… I was so scared that I obeyed … when he left, I started crying. I didn’t say anything at the time or even file a complaint to the police. I thought it would be worse if I did because I thought someone from the police would likely tell [Mateo].… He told me he was going to kill my father and my daughter if I reported the [original and three subsequent] rapes, because I was ‘his woman.’ [He] hit me and told me that he wanted me all to himself.”

As in these three cases, some people deported from the United States back to El Salvador face the same abusers, often in the same neighborhoods, they originally fled: gang members, police officers, state security forces, and perpetrators of domestic violence. Others worked in law enforcement in El Salvador and now fear persecution by gangs or corrupt officials.

Deportees also include former long-term US residents, who with their families are singled out as easy and lucrative targets for extortion or abuse. Former long-term residents of the US who are deported may also readily run afoul of the many unspoken rules Salvadorans must follow in their daily lives in order to avoid being harmed.

Nearly 900,000 Salvadorans living in the US without papers or only a temporary status together with the thousands leaving El Salvador each month to seek safety in the US are increasingly at risk of deportation. The threat of deportation is on the rise due to various Trump administration policy changes affecting US immigration enforcement inside its borders and beyond, changes that exacerbated the many hurdles that already existed for individuals seeking protection and relief from deportation.

Increasingly, the United States is pursuing policies that shift responsibility for immigration enforcement to countries like Mexico in an effort to avoid any obligation for the safety and well-being of migrants and protection of asylum-seekers. As ever-more restrictive asylum and immigration policies take hold in the US, this situation—for Salvadorans, and for others—will only worsen. Throughout, US authorities are turning a blind eye to the abuse Salvadorans face upon return.

Some people from El Salvador living in the United States have had a temporary legal status known as “Temporary Protected Status” or “TPS,” which has allowed those present in the United States since February 2001 (around 195,000 people) to build their lives in the country with limited fear of deportation. Similarly, in 2012, the Obama administration provided some 26,000 Salvadorans with “Deferred Action for Childhood Arrivals” or “DACA” status, which afforded some who had arrived as children with a temporary legal status. The Trump administration had decided to end TPS in January 2020, but to comply with a court order extended work authorization to January 2021. It remains committed to ending DACA.

While challenges to both policies wend their way through the courts, people live in a precarious situation in which deportation may occur as soon as those court cases are resolved (at the time of writing the DACA issue was before the US Supreme Court; and the TPS work authorization extension to January 2021 could collapse if a federal appellate court decides to reverse an injunction on the earlier attempt to terminate TPS).

Salvadoran asylum seekers are also increasingly at risk of deportation and return. The Trump administration has pursued a series of policy initiatives aimed at making it harder for people fleeing their countries to seek asylum in the United States by separating children from their parents, limiting the number of people processed daily at official border crossings, prolonging administrative detention, imposing fees on the right to seek asylum, extending from 180 days to one year the bar on work authorization after filing an asylum claim, barring asylum for those who transited another country before entering the United States, requiring asylum seekers to await their hearings in Mexico, where many face dangers, and attempting to narrow asylum.

These changes aggravated pre-existing flaws in US implementation of its protection responsibilities and came as significant numbers of people sought protection outside of El Salvador. In the decade from 2009 to 2019, according to government data, Mexican and United States officials made at least 732,000 migration-related apprehensions of Salvadoran migrants crossing their territory (175,000 were made by Mexican authorities and just over 557,000 by US authorities).

According to the United Nations’ refugee agency, the number of Salvadorans expressing fear of being seriously harmed if returned to El Salvador has skyrocketed. Between 2012 and 2017, the number of Salvadoran annual asylum applicants in the US grew by nearly 1,000 percent, from about 5,600 to over 60,000. By 2018, Salvadorans had the largest number (101,000) of any nationality of pending asylum applications in the United States. At the same time, approximately 129,500 more Salvadorans had pending asylum applications in numerous other countries throughout the world. People are fleeing El Salvador in large numbers due to the violence and serious human rights abuses they face at home, including one of the highest murder rates in the world and very high rates of sexual violence and disappearance.

Despite clear prohibitions in international law on returning people to risk of persecution or torture, Salvadorans often cannot avoid deportation from the US. Unauthorized immigrants, those with temporary status, and asylum seekers all face long odds. They are subjected to deportation in a system that is harsh and punitive—plagued with court backlogs, lack of access to effective legal advice and assistance, prolonged and inhumane detention, and increasingly restrictive legal definitions of who merits protection. The US has enlisted Mexico—which has a protection system that its own human rights commission has called “broken”—to stop asylum seekers before they reach the US and host thousands returned to wait for their US proceedings to unfold. The result is that people who need protection may be returned to El Salvador and harmed, even killed.

Instead of deterring and deporting people, the US should focus on receiving those who cross its border with dignity and providing them a fair chance to explain why they need protection. Before deporting Salvadorans living in the United States, either with TPS or in some other immigration status, US authorities should take into account the extraordinary risks former long-term residents of the US may face if sent back to the country of their birth. The US should address due process failures in asylum adjudications and adopt a new legal and policy framework for protection that embraces the current global realities prompting people to flee their homes by providing “complementary protection” to anyone who faces real risk of serious harm.

As immediate and first steps, the United States government should adopt the following six recommendations to begin to address the problems identified in this report. Additional medium- and long-term legal and policy recommendations appear in the final section of this report.

The Trump administration should repeal the Migration Protection Protocols (MPP); the two Asylum Bans; and the Asylum Cooperation Agreements.

The Attorney General of the United States should reverse his decisions that restrict gender-based, gang-related, and family-based grounds for asylum.

Congress and the Executive Branch should ensure that US funding for Mexican migration enforcement activities does not erode the right to seek and receive asylum in Mexico.

Congress should immediately exercise its appropriation power by: 1) Refraining from providing additional funding to the Department of Homeland Security (DHS) for Immigration and Customs Enforcement (ICE) and US Customs and Border Protection (CBP) unless and until abusive policies and practices that separate families, employ unnecessary detention, violate due process rights, and violate the right to seek asylum are stopped; 2) Prohibiting the use of funds to implement the Migrant Protection Protocols, the “Asylum Bans,” or the Asylum Cooperation Agreements, or any subsequent revisions to those protocols and agreements that block access to the right to seek asylum in the United States.

Congress should exercise its oversight authority by requiring the Government Accountability Office and the Office of Inspector General to produce reports on the United States’ fulfilment of its asylum and protection responsibilities, including by collecting and releasing accurate data on the procedural experiences of asylum seekers (access to counsel, wait times, staff capacity to assess claims, humanitarian and protection resources available) and on harms experienced by people deported from the United States to their countries of origin.

Congress should enact, and the President should sign, legislation that would broadly protect individuals with Temporary Protected Status (including Salvadorans) and DACA recipients, such as the Dream and Promise Act of 2019, but without the overly broad restrictions based on juvenile conduct or information from flawed gang databases.

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History will neither forget nor forgive the many Article III Judges who have betrayed their oaths of office and abandoned humanity by allowing the Trump regime to run roughshod over our Constitution, the rule of law, and simple human decency.

Future generations must inject integrity, courage, and human decency into the process for appointing and confirming Article III Judges. Obviously, there is something essential missing in the legal scholarship, ethical training, and moral integrity of many of our current batch of shallow “go along to get along” jurists! Human lives matter!

Due Process Forever; Complicit Courts Never!

PWS

02-06-20

HISTORICAL PERSPECTIVE: CLYDE W. FORD @ LA TIMES: “Opinion: The immigration crisis and the racism driving it have roots in Hitler’s ‘bible’”

https://www.latimes.com/opinion/story/2020-01-07/great-race-passing-trump

Ford writes:

OPINION

Opinion: The immigration crisis and the racism driving it have roots in Hitler’s ‘bible’

By CLYDE W. FORD

JAN. 7, 2020

3:01 AM

The images horrify.

On the banks of the Rio Grande, a child floats lifelessly, her arm around her father, both drowned while trying to cross from Mexico into the United States. Refugees crossing the Mediterranean from Africa into Europe regularly drown. A Honduran mother dragging children flees from tear gas at the U.S. border. Children in cages.

The policies terrify. A border wall. Family separation. The purgatory of waiting for asylum in a third country.

In December, the Washington Post reported that U.S. Immigration and Customs Enforcement wants to use migrant children in detention as bait. Adults who show up to claim them would be targeted for arrest and deportation.

The words incite fear. “Bad hombres.” “Rapists.” “Criminals.” “Shithole countries.” When uttered by a U.S. president, they carry even greater weight.

Britain, Poland, Italy, the United States. Around the world, countries once proud of welcoming immigrants seem determined to find ever more devious ways to keep them out. Are these signs of a newly ascendant nationalism? Or the last gasps of existential fear?

The worldwide immigration crisis — and the racism apparently driving it — can trace its roots in part to a century-old book, Madison Grant’s “The Passing of the Great Race.”

In publishing a centenary edition of the 1916 work, white nationalist Ostara Press praised the book as a “call to American whites to counter the dangers both from non-white and non-north Western European immigration.” Grant proposed a “Nordic race,” loosely centered in Scandinavia, as principally responsible for human social and cultural development. He feared immigration and intermarriage would dilute this race, dooming it to extinction.

Grant’s fears of his “great race” passing are very much alive today.

The Southern Poverty Law Center’s ongoing study of emails sent by Stephen Miller to Breitbart News in the lead-up to the 2016 presidential election document his affinity for white nationalism. Miller, an architect of the Trump administration’s immigration policies, lauds former President Calvin Coolidge for signing the Immigration Act of 1924, which hardened non-white immigration and eased white immigration from Western Europe. It also established the U.S. Border Patrol, the predecessor of Customs and Border Protection and ICE.

Grant’s writing is credited as part of the inspiration for the creation and passage of that 1924 Act. Hitler called Grant’s book, “my bible.” Grant’s ideas defined apartheid. His book fueled the U.S. eugenics movement.

Eugenics is a pseudoscience of race that seeks to breed and maintain a “Nordic stock” of human beings, while culling undesirables — blacks, Jews, Asians, South Americans, homosexuals, the physically and mentally ill, and others — through measures ranging from forced sterilization to death.

In Grant’s day, eugenics attracted the rich and famous — Carnegies, Rockefellers, and the Kelloggs of Corn Flakes fame. Eugenicist Margaret Sanger, founder of Planned Parenthood, saw birth control work as eliminating “human weeds” and Alexander Graham Bell presided over the scientific directors of the Eugenics Records Office, a research institute in Cold Spring Harbor, N.Y.

Eugenics is very much in vogue among white nationalists and far-right groups worldwide, though refashioned now into broader conspiracies like “replacement theory,” which originated in France with the writings of Renaud Camus and proposes that U.S. and European whites are being intentionally “replaced” through low birth rates and liberal immigration policies.

“We can’t restore our civilization with somebody else’s babies,” tweeted U.S. Rep. Steve King (R-Iowa) in 2017. A gunman in Norway who murdered 80 people in 2011 portrayed the act as a defense of the Nordic race from the scourge of Islamic immigration. Similar “replacement theory” fears influenced mass shooters in Christchurch, Pittsburgh, El Paso and Charleston.

Surprisingly, Grant was as an early conservationist who saw in the fate of endangered species — the moose, the buffalo, the redwood tree — a similar fate awaiting his “Nordics.” He helped establish the U.S. National Park system. Modern-day environmental and climate movements have roots in Grant’s work, leading to a convoluted, bizarre specter:

The U.S. and European countries that Grant lauded manufacture the “greenhouse gases” threatening the environment that Grant sought to protect. Meanwhile, the climate crisis produces refugees from countries that Grant abhorred, seeking shelter in countries with draconian immigration policies that Grant helped to create.

Yet Grant was right. His “great race” is passing. Studies cite 2050 as the tipping point, when U.S. whites will become a statistical minority, and most Americans will be people of color. Whether crafted in overtly racist language or couched in covertly racist immigration policies, fear of the “great race” passing is used to win elections, cling to power, manipulate public opinion and grow organizational membership.

Immigrants built America. This new wave is no different. They are the face of the future, deserving new lives in a country that helps them succeed.

Yes, the “great race” is passing. Good riddance. And we should turn to finding ways to help everyone accept this inevitability — and thrive from it.

Clyde W. Ford is the author of “Think Black,” a memoir about his father, the first black software engineer in America.

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

Like those who were behind or “went along to go along” with horrible parts of our history like Dred Scott, Plessy v. Ferguson, the Chinese Exclusion Laws, or Jim Crow, Trump’s supporters and enablers eventually will have much to answer for in the “court of history.”

“Fake news.” “alternative facts,” false narratives, and internet myths might be gospel to Breitbart, Fox News, GOP sycophants, and Trump voters, but eventually, particularly in an age of information and documentation, “truth will out.” And, it won’t be pretty for the “Modern Day Jim Crows” any more than it was for the segregationists and other racists who preceded them.

PWS

01-10-20

FRANK RICH @ NY MAGGIE: TRUMP TOADIES WILL FACE A RECKONING — “With time, the ultimate fates of those brutalized immigrant and refugee families will emerge in full. And Trump’s collaborators, our Vichy Republicans, will own all of it . . . .”

http://nymag.com/intelligencer/2020/01/what-will-happen-to-trumps-republican-collaborators.html

What Will Happen to The Trump Toadies? Look to Nixon’s defenders, and the Vichy collaborators, for clues.

By Frank Rich

@frankrichny

Photo: Getty Images

This article was featured in One Great Story, New York’s reading recommendation newsletter. Sign up here to get it nightly.

Irony, declared dead after 9/11, is alive and kicking in Trump’s America. It’s the concepts of truth and shame that are on life support. The definition of “facts” has been so thoroughly vandalized that Americans can no longer agree on what one is, and our president has barreled through so many crimes and misdemeanors with so few consequences that it’s impossible to gainsay his claim that he could shoot someone on Fifth Avenue and get away with it. Donald Trump proves daily that there is no longer any penalty for doing wrong as long as you deny everything, never say you’re sorry, and have co-conspirators stashed in powerful places to put the fix in.

No wonder so many fear that Trump will escape his current predicament scot-free, with a foregone acquittal at his impeachment trial in the GOP-controlled Senate and a pull-from-behind victory in November, buoyed by a booming economy, fractious Democrats, and a stacked Electoral College. The enablers and apologists who have facilitated his triumph over the rule of law happily agree. John Kennedy, the Louisiana senator who parrots Vladimir Putin’s talking points in his supine defense of Trump, acts as if there will never be a reckoning. While he has no relation to the president whose name he incongruously bears, his every craven statement bespeaks a confidence that history will count him among the knights of the buffet table in the gilded Mar-a-Lago renovation of Camelot. He is far from alone.

If we can extricate ourselves even briefly from our fatalistic fog, however, we might give some credence to a wider view. For all the damage inflicted since Inauguration Day 2017, America is still standing, a majority of Americans disapprove of Trump, and the laws of gravity, if not those of the nation, remain in full force. Moral gravity may well reassert its pull, too, with time. Rather than being the end of American history as we know it, the Trump presidency may prove merely a notorious chapter in that history. Heedless lapdogs like Kennedy, Devin Nunes, and Lindsey Graham are acting now as if there is no tomorrow, but tomorrow will come eventually, whatever happens in the near future, and Judgment Day could arrive sooner than they think. That judgment will be rendered by an ever-more demographically diverse America unlikely to be magnanimous toward cynical politicians who prioritized pandering to Trump’s dwindling all-white base over the common good.

All cults come to an end, often abruptly, and Trump’s Republican Party is nothing if not a cult. While cult leaders are generally incapable of remorse — whether they be totalitarian rulers, sexual Svengalis, or the self-declared messiahs of crackpot religions — their followers almost always pay a human and reputational price once the leader is toppled. We don’t know how and when Donald Trump will exit, but under any scenario it won’t be later than January 20, 2025. Even were he to be gone tomorrow, the legacy of his most powerful and servile collaborators is already indelibly bound to his.

Whether these enablers joined his administration in earnest, or aided and abetted it from elite perches in politics, Congress, the media, or the private sector, they will be remembered for cheering on a leader whose record in government (thus far) includes splitting up immigrant families and incarcerating their children in cages; encouraging a spike in racist, xenophobic, and anti-Semitic vigilantes; leveraging American power to promote ethnic cleansing abroad and punish political opponents at home; actively inciting climate change and environmental wreckage; and surrendering America’s national security to an international rogue’s gallery of despots.

That selective short list doesn’t take into account any new White House felonies still to come, any future repercussions here and abroad of Trump’s actions to date, or any previous foul deeds that have so far eluded public exposure. For all the technological quickening of the media pulse in this century, Trump’s collaborators will one day be viewed through the long lens of history like Nixon’s collaborators before them and the various fools, opportunists, and cowards who tried to appease Hitler in America, England, and France before that. Once Trump has vacated the Oval Office, and possibly for decades thereafter, his government, like any other deposed strongman’s, will be subjected to a forensic colonoscopy to root out buried crimes, whether against humanity or the rule of law or both. With time, everything will come out — it always does. With time, the ultimate fates of those brutalized immigrant and refugee families will emerge in full. And Trump’s collaborators, our Vichy Republicans, will own all of it — whether they were active participants in the wrongdoing like Jared Kushner, Stephen Miller, Kirstjen Nielsen, Mike Pompeo, and William Barr, or the so-called adults in the room who stood idly by rather than sound public alarms for the good of the Republic (e.g., Gary Cohn, John Kelly, Rex Tillerson), or those elite allies beyond the White House gates who pretended not to notice administration criminality and moral atrocities in exchange for favors like tax cuts and judicial appointments (from Mitch McConnell and Paul Ryan to Franklin Graham and Jerry Falwell Jr.).

. . . .

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Read the rest of Rich’s article at the link.

“Tomorrow will come, eventually.” Yup!

Just yesterday, the usually reliable “Trump Toadies” Sen. Mike Lee (R-UT) and Rand Paul (R-KY) were whining and sputtering upon learning what toadyism really means after being “treated like Democrats” during an insulting and clownish “after the fact briefing” on Iran. https://www.cnn.com/2020/01/09/politics/impeachment-watch-january-8/index.html .

But, that moment of lucidity and outrage will pass quickly, and they will undoubtedly rejoin their colleagues like Sen. Marco Rubio (R-FL), Sen. Teddy Cruz (R-TX), Sen. John “Vladimir” Kennedy (R-LA), Lindsey “Braindead” Graham (R-SC), and the rest of the “Party of Putin” in groveling before their Clown-in-Chief.

I would include the Article III judges who tanked in the face of tyranny and failed to protect the legal and human rights of the most vulnerable in the list of those whose misdeeds, spinelessness, and complicity in the face of tyranny eventually will be “outed.”

PWS

01-09-20

LINDA GREENHOUSE @ NYT: Trump’s Solicitor General Argues For Trashing The Remaining Vestiges Of The Supremes As An Independent Judiciary Rather Than Trump/Far Right Political Toadies! — Not Surprisingly, Immigration Is The Issue!

https://www.nytimes.com/2020/01/02/opinion/guantanamo-detention-supreme-court.html

Greenhouse writes in the NYT:

I have tried to write at least one column every year about Guantánamo in the belief that what happened there, and what the Supreme Court had to say about it, still matters — even though only a few dozen prisoners remain from the hundreds once held there as legal proceedings grind on with no end in sight.

Having missed my goal in 2019, I’m starting the new year with a Guantánamo column. It’s not about Guantánamo per se, but rather about a new Supreme Court case that will test the current justices’ adherence to an important constitutional principle that emerged from the struggle among the three branches of government over what legal regime should govern the detention of those deemed enemy combatants in the aftermath of 9/11.

In a series of rulings from 2004 through 2008 that were notable for majority coalitions of justices appointed by both Democratic and Republican presidents, the court rejected the claims of both the White House and Congress that the federal courts had no business in Guantánamo. The most important of these decisions was the final one, Boumediene v. Bush. Congress had tried in the Military Commissions Act of 2006 to strip the federal courts of jurisdiction over cases brought by Guantánamo detainees. The court ruled, in an opinion by Justice Anthony Kennedy, that the detainees had a constitutional right to seek habeas corpus, the ancient English remedy for illegal detention.

The case now before the court, to be argued in early March, is in essential respects Boumediene’s direct descendant. The question in Department of Homeland Security v. Thuraissigiam is whether a 1996 federal immigration law unconstitutionally stripped the federal courts of jurisdiction over cases, including habeas corpus cases, brought by undocumented immigrants who are subject to what the law designated as “expedited removal.”

The immigrant in this case, Vijayakumar Thuraissigiam, is a member of the minority Tamil population in Sri Lanka who applied for asylum after being apprehended crossing the Mexican border into California. Expedited removal applies to, among others, those aliens who are deemed inadmissible upon arrival; an immigration officer can order their immediate deportation. The rules are different if the immigrant is seeking asylum. Those individuals appear before an asylum officer to be screened for the required “credible fear of persecution or torture” if sent back to their home countries.

If “credible fear” is found, immigrants enter what is known as a “full removal proceeding” where they can apply for asylum and obtain judicial review if asylum is denied. But an immigrant who fails the initial screening, as Mr. Thuraissigiam did, receives only a truncated administrative review process and remains in expedited removal. The only access to federal court is for a claim of mistaken identity. The law, which carries the unwieldy name of the Illegal Immigration Reform and Immigrant Responsibility Act, provides: “There shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal.”

In its decision last March, a panel of the United States Court of Appeals for the Ninth Circuit held the jurisdiction-stripping provision of the law unconstitutional. “Boumediene is our starting point,” the appeals court wrote. It held that like the Military Commissions Act that the Supreme Court invalidated in that case, the immigration law amounted to an unconstitutional “suspension” of habeas corpus. The reference is to Article I, Section 9, Clause 2 of the Constitution, the Suspension Clause, which provides: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

In the government’s petition to the Supreme Court, which the justices granted in October, Solicitor General Noel Francisco argued that Boumediene was “fundamentally different” from this case, because while the Guantánamo detainees were seeking release from custody so they could return home, Mr. Thuraissigiam is already free to return home but is trying to stay: “He would be removed to and released in Sri Lanka forthwith absent his habeas petition.”

Whatever its merits, this was a conventional legal argument. Lawyers are always distinguishing their case from the case that set the precedent, aiming to persuade a court that the precedent shouldn’t apply because the facts or context are different.

Then something changed.

The brief on the merits that Solicitor General Francisco filed in December took a surprisingly different line of attack on the Ninth Circuit’s decision. In addition to distinguishing Boumediene as inapplicable, the brief argues that Mr. Thuraissigiam’s claim must fail because the Constitution’s framers would not have applied the Suspension Clause to immigrants seeking relief from deportation. This is an aggressive “originalist” argument that comes very close to telling the court that Boumediene itself was wrongly decided. “This court has stated that ‘the Suspension Clause protects the writ as it existed in 1789,’ ” the brief asserts, citing an immigration case from 2001, Immigration and Naturalization Service v. St. Cyr. It continues: “And in 1789, the writ did not protect the sort of claim that respondent asserts here.”

To be generous, that is at best a partial rendering of what Justice John Paul Stevens said in his majority opinion in the St. Cyr case. Here is the relevant paragraph, highlighting two important words that the administration’s brief left out (Enrico St. Cyr was a Haitian immigrant trying to avoid deportation; he won the case):

“In sum, even assuming that the Suspension Clause protects only the writ as it existed in 1789, there is substantial evidence to support the proposition that pure questions of law like the one raised by the respondent in this case could have been answered in 1789 by a common law judge with power to issue the writ of habeas corpus. It necessarily follows that a serious Suspension Clause issue would be presented if we were to accept the I.N.S.’s submission that the 1996 statutes have withdrawn that power from federal judges and provided no adequate substitute for its exercise.”

Justice Kennedy voted with the St. Cyr majority. And in his majority opinion seven years later in Boumediene, he had this to say: “The court has been careful not to foreclose the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ.”

What accounts for the administration’s aggressive advocacy in the face of the carefully nuanced precedents that apply to this area of the law? Two factors, I think. The first is that conservatives despise the Boumediene opinion. Judge Raymond Randolph, a stalwart conservative on the United States Court of Appeals for the District of Columbia Circuit, who wrote the opinion that the Supreme Court overturned in Boumediene, has openly been at war with the Supreme Court over Guantánamo.

In a 2010 speech to the Heritage Foundation, he compared the justices in the Boumediene majority to Tom and Daisy Buchanan in “The Great Gatsby:” “careless people, who smashed things up” and who “let other people clean up the mess they made.” And another conservative judge on the same court, Laurence Silberman, in a concurring opinion in 2011 called Boumediene “the Supreme Court’s defiant — if only theoretical — assertion of judicial supremacy.”

After Boumediene, dozens of Guantánamo detainees brought habeas corpus petitions in Federal District Court in Washington, and the judges of that court granted relief to many of them. But the conservative judges on the appeals court overturned one favorable ruling after another in what at least from the outside looked like a systematic effort to “clean up the mess” by rendering a potentially powerful rights-protecting decision toothless. Not once did the appeals court uphold a detainee’s grant of habeas corpus. Justice Brett Kavanaugh, who was a judge on the D.C. Circuit throughout that period, joined the majority in two of the more important cases.

The war on Boumediene is not ancient history. In his widely noticed speech to the Federalist Society in November, Attorney General William P. Barr took direct aim at the decision, referring to it as the climax of “the most blatant and consequential usurpation of executive power in our history.” According to the attorney general, the Supreme Court, in its series of Guantánamo cases, “set itself up as the ultimate arbiter and superintendent of military decisions inherent in prosecuting a military conflict — decisions that lie at the very core of the president’s discretion as commander in chief.”

An attorney general doesn’t ordinarily get involved in the day-in, day-out work of the solicitor general’s office. I’m willing to speculate that Mr. Barr was at most only vaguely aware of the Thuraissigiam case until the court agreed to hear it. I’m guessing that at that point, he saw his opening — an opportunity to shackle the right of habeas corpus to a theory of originalism, as rigid as it is ahistorical, and to perhaps inspire some justices to take a fresh look back at Boumediene.

That brings to me the second factor that explains the turn the administration is taking. Both the St. Cyr and Boumediene cases were decided by votes of 5 to 4. (Justice Antonin Scalia’s dissenting opinion in Boumediene was memorable. “It will almost certainly cause Americans to die,” he predicted.) Justice Kennedy was in the majority in both. Now, of course, Justice Kavanaugh sits in Justice Kennedy’s seat.

In renewing my commitment to write about Guantánamo every year, I’m not limiting myself to once a year. This case has been overshadowed by pending Supreme Court cases on issues more central to the public conversation. But in their time, it was the Guantánamo cases that held the country in thrall. The current attorney general’s position notwithstanding, that series of decisions represents the best the Supreme Court has to offer the country, an assertion of principle beyond politics. The Trump administration’s advocacy having put that legacy on the line, the question now is whether it will be shredded like so much else in this troubled time.

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Recently, Chief Justice Roberts remarked on the importance of democratic institutions and judicial independence.

Sadly, the Chiefie and his band of righty politico-judges that form the Supremes’ majority have been rather pathetic examples of how democratic institutions decay and die. With the exception of a rather meek rebuke of outrageous Trump regime fraud and contemptuous lies in the “Census Case,” Roberts and his band have been major contributors to the fecklessness and complicity of the higher level Article III judiciary when confronted by dishonesty and tyranny.

They have eviscerated voting rights, green-lighted unconstitutional gerrymandering by the GOP to dilute voting power on the basis of race, approved a fraudulent “Muslim Ban” based on contrived reasons covering up an obvious invidious purpose, failed to halt unconstitutional immigration detention practices, and allowed the Administration to effectively repeal US and international asylum protections based on Executive action that contravenes both the statute and Constitutional Due Process.

Actions speak louder than words, Chiefie! Until you and your “go along to get along” GOP appointed colleagues act like real judges rather than appendages of right-wing politicos, you won’t get the respect that you seem to crave and believe you deserve. And, that’s why Trump Solicitor General Noel Francisco treats you and your colleague like “bought and paid for” political toadies, assigned to do his and his master’s bidding at the expense of our Constitution and the individual rights it was meant to protect.

There are courageous lawyers, judges, and bureaucrats out there putting themselves at risk to protect the democratic institutions and rule of law that you tout. Your complicity is undermining their efforts at every turn. Why don’t you and your colleagues wake up, smell the roses, and come to the aid and support of those doing your job of protecting American democracy for you?

PWS

01-03-19

WHERE’S THE OUTRAGE? — 9th CIRCUIT JUDGES ASSIST REGIME’S AGENTS IN COMMITTING “CRIMES AGAINST HUMANITY” MERE YARDS FROM THE BORDER! — NDPA Leader Jodi Goodwin, Esquire, Speaks Out: “I’ve been practicing law for 25 years and the last four to five months of practicing law has broken me. I don’t want to fucking do this anymore. [Her voice breaks again] It sucks. How do you explain to people that you know they thought they were coming to a place where there’s freedom and safety and where the laws are just, but that’s not the situation? I’m very mad.”

Jodi Goodwin, Esquire
Immigration Attorney
Harlingen, TX

https://www.huffpost.com/entry/remain-in-mexico-policy-immigrant-kids_n_5deeb143e4b00563b8560c69

Angelina Chapin reports for HuffPost:

A few times a week, attorney Jodi Goodwin walks across the bridge from Brownsville, Texas, to a refugee camp in Matamoros, Mexico, to meet with asylum-seekers. Her clients are among the more than 2,500 immigrants crammed into tents while they wait for U.S. immigration hearings ― often stuck for months in dirty and dangerous conditions.

The forced return to Mexico of migrants seeking refuge in the U.S. is one of President Donald Trump’s most inhumane immigration policies, yet it hasn’t received nearly the attention that his family separation and prolonged detention practices have.

Since January, under Trump’s “Remain in Mexico” initiative ― also known as the Migrant Protection Protocols (MPP) ― the U.S. government has sent at least 54,000 immigrants to wait for their court dates in Mexican border towns. Instead of staying with relatives in the U.S., families are sleeping in tents for up to eight months, in unprotected areas where infections spread within crowded quarters and cartel kidnappings are commonplace. Family separation ended a year ago. But Trump’s mistreatment of asylum-seekers continues in a different form.

Some parents are so desperate that they’ve resorted to sending their children across the bridge alone, since unaccompanied kids who arrive at the border cannot be turned away under MPP. Since October, at least 135 children have crossed back into the U.S. by themselves after being sent to wait in Mexico with their parents, according to the U.S. Department of Health and Human Services.

In Mexico, many of these migrants don’t have access to lawyers and are forced to plead their cases in makeshift tent courts set up along the U.S. border where overwhelmed judges conduct hearings via video teleconference. The courts have limited public access ― lawyers and translators say that they have been barred from attending hearings. Migrants’ advocates argue that the tent courts violate due process, and immigrant rights organizations have filed a federal lawsuit against Immigration and Customs Enforcement over the use of videoconferencing.

Goodwin, who has 42 clients, said there is a serious shortage of lawyers willing to represent immigrants staying in another country where crime is rife. She spoke with HuffPost about why the Remain in Mexico policy is even more traumatic than separating thousands of families and why it hasn’t sparked public outrage.

AMERICAN IMMIGRATION LAWYERS ASSOCIATION

Jodi Goodwin (center) at the refugee camp in Matamoros, Mexico.

HuffPost: Immigrant parents forced to wait in Mexico are making the heart-wrenching choice to send their kids to the U.S. alone. What are the conditions like at the camp in Matamoros?

Jodi Goodwin: It smells like urine and feces. There’s not enough sanitation. There’s 10 port-a-potties for thousands of people. Up until recently, there was no potable water available at all. People were bathing in the Rio Grande river, getting sick and, in some cases, drowning. People were seriously dehydrated.

The camp sounds completely unfitting for any human being, let alone children.

It’s a horrific situation to put families in. It’s great to live in a tent for the weekend when you’re going to the lake. It’s not great to live in a tent for months at a time where you don’t have basic necessities.

Are kids getting sick?

The kids are sick every day. I’ve seen all kinds of respiratory illnesses and digestive illnesses. I’ve seen chronic illnesses like epilepsy. I saw a baby that appeared to have sepsis who was forced to wait on the bridge for more than three hours before being taken to a hospital.

And what about the kidnappings? Have you heard of families being taken by cartel members who then try and extort an immigrant’s U.S. relatives for money?

About half of the people I’ve spoken to in Mexico have been kidnapped. The cartel knows if they can grab an immigrant, they’re likely to be able to work out a ransom. If they don’t, then they just kill them.

Any specific examples?

I dealt with one case where a mom from El Salvador and her 4-year-old son were kidnapped within an hour of being sent back to Mexico under MPP. They were taken for eight days before her brother in the U.S. paid the kidnappers $7,000.

The lady was terrified. She was sleep-deprived, food-deprived and water-deprived. She said that the people who had kidnapped her were extremely violent and hit her kid. They were drinking alcohol and raping people at a stash house where several other people were being held.

LOREN ELLIOTT / REUTERS

Migrants, most of them asylum-seekers sent back to Mexico from the U.S. under the “Remain in Mexico” program, occupy a makeshift encampment in Matamoros, Mexico, on Oc. 28, 2019.

The last time we spoke, you were on the frontlines of family separation, visiting detention centers where mothers were hysterically crying after being ripped apart from their children. How does the trauma of MPP compare, particularly for parents who are sending their kids across the border alone?

It’s way worse. I can’t with any confidence say that they will ever see their children again.

Why not?

I knew there were legal ways to get out of family separation. We were able to talk with our clients and didn’t have to go off to another country. And for those parents who got through their interviews or their court hearings, we were able to get them back with their kids.

With MPP, the assault is not only on human rights but also on due process within the court systems, which has completely hijacked the ability to be able to fix things. The parents can’t even get into the country to try to reunify with their kids.

Nearly 3,000 children were separated from their parents under Trump’s zero-tolerance policy. Do you think a similar number of families will be ripped apart because of Remain in Mexico?

It could be more. Over 55,000 people have been sent back to Mexico. I’ve talked to so many parents who have sent their kids across. It’s a heart-wrenching decision process that they go through. How do you give up your baby?

It reminds me of Jewish parents who were captives in Nazi Germany and had to convince their kids to get on a different train or go in a different line to save their own lives.

Have you witnessed these separations firsthand?

In November I saw a little boy and his 4-year-old sister sent across the bridge with an older child, who was about 14 years old. The teenager carried the baby boy, who still had a pacifier in his mouth, and the girl was holding onto the older kid’s belt loop.

I was standing on the bridge between Matamoros and the U.S. and I turned around to look down at the bank of the Rio Grande river. Every single parent who has sent their kid to cross tells me the same thing: As soon as they say goodbye and hug their kids, they run to the bank to watch them. [Her voice breaks] I knew there was somebody probably standing on that bank hoping those kids made it across.

Do you still think about those kids?

Oh yeah. The green binky that the little baby was sucking on is knitted in my mind.

VERONICA CARDENAS / REUTERS

The Mexican National Guard patrols an encampment where asylum-seekers live as their tents are relocated from the plaza to near the banks of the Rio Grande in Matamoros on Dec. 7, 2019.

You’ve been working hundreds of hours a month to try and help people stranded in Matamoros. This work must take a toll on you personally.

I’ve been practicing law for 25 years and the last four to five months of practicing law has broken me.

I don’t want to fucking do this anymore. [Her voice breaks again] It sucks. How do you explain to people that you know they thought they were coming to a place where there’s freedom and safety and where the laws are just, but that’s not the situation? I’m very mad.

Family separation resulted in massive outcry from the public, which eventually pressured the government to end the zero-tolerance policy. Why is MPP not getting the same attention?

There is no public outrage because it’s not happening on our soil. It’s happening literally 10 feet from the turnstile to come to the U.S. But because it’s out of sight and out of mind, there is no outrage. What ended family separation was public outrage. It had nothing to do with lawsuits. It had everything to do with shame, shame, shame.

This interview has been lightly edited for length and clarity.

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

I’m with you, Jodi! Thanks for your dedication to justice for the most vulnerable!

What’s wrong with this scenario: life-tenured Federal Judges who won’t stand up for the rule of law, Due Process, and Equal Protection in the face of an arrogantly and overtly lawless White Nationalist Regime; DOJ and other U.S. Government lawyers who defend immoral and disingenuous positions in Federal Court, often, as in the Census Case and the DACA Case using pretextual rationales and knowingly false information; dehumanization, with overwhelming racial and religious overtones, of those who deserve our protection and rely on our sense of fairness; undercutting, mistreating and humiliating the brave lawyers like Jodi who are standing up for justice in the face of tyranny; GOP legislators who are lawyers defending Trump’s mockery of the Constitution, human decency, and the rule of law and knowingly and defiantly spreading Putin’s false narratives.

Obviously, there has been a severe failure in our legal and ethical education programs and our criteria for Federal Judicial selections, particularly at the higher levels, and particularly with respect to the critical characteristic of courage. Too many “go alongs to get alongs!” I can only hope that our republic survives long enough to reform and correct these existential defects that now threaten to bring us all down.

Where’s the accountability? Where’s the outrage? Where’s our humanity?

We should also remember that many asylum seekers from Africa, who face extreme danger in Mexico, are also being targeted (“shithole countries?”) and abused as part of the Regime’s judicially-enabled, racially driven, anti-asylum, anti-rule-of-law antics at the Southern Border. https://apple.news/AyYSWSXNfSdOm63skxWaUTQ

Also, morally corrupt Trump Regime officials continued to tout “Crimes Against Humanity” as an acceptable approach to border enforcement and “reducing apprehensions!” Will machine gun turrets be next on their list? Will Article III Judges give that their “A-OK?”

We’re actually paying Article III Federal Judges who are knowingly and intentionally furthering “Crimes Against Humanity.” Totally outrageous!

Constantly Confront Complicit Courts 4 Change!

Due Process Forever; Complicit Courts Never!

PWS

12-10-19

WHILE LIFE-TENURED FEDERAL JUDGES CHICKEN OUT, FORMER ASYLUM OFFICER DOUG STEPHENS SPEAKS OUT IN NYT VIDEO EDITORIAL AGAINST JUDICIALLY-ENABLED NATIONAL DISGRACE OF “LET ‘EM DIE IN MEXICO” — “A former asylum officer says ‘remain in Mexico’ and other policies undermining asylum aren’t just racist, they’re illegal.”

https://www.nytimes.com/2019/11/20/opinion/trump-asylum-remain-mexico-policy.html

By Doug Stephens

Mr. Stephens is a lawyer.

Video by Leah Varjacques and Taige Jensen

In the Video Op-Ed above, a former asylum officer reveals why he resigned: to protest President Trump’s policy requiring migrants to remain in Mexico while awaiting hearings.

Doug Stephens had been an asylum officer for two years. But two days and five interviews that resulted in sending asylum seekers back to danger shook him. He drafted a memo detailing his legal objections to the policy, and circulated it to 80 of his colleagues, his supervisors and a member of Congress. And then he quit.

Mr. Stephens is not the only asylum officer who has grappled with following orders. In interviews with a half-dozen current and former asylum officers across the country, The Times learned of individuals leaving their posts, requesting job transfers and falling into deep depression.

The right to asylum has been a cornerstone of international immigration law since the 1951 United Nations Convention Relating to the Status of Refugees. The United States, along with 144 other nations, made a commitment to protect those who arrive at our borders with “a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.”

To date, Mr. Trump’s remain in Mexico policy, officially known as one of the “Migrant Protection Protocols,” has left nearly 58,000 asylum seekers stranded in Mexico.

Doug Stephens, a lawyer, resigned his post as a Citizenship and Immigrations Services asylum officer in San Francisco in August.

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

See the video at the above link.

Doug “gets it,” and it didn’t take him long. My Georgetown Law students “got it.” They kept asking me how this could be happening when it seemed to be clearly illegal and a violation of the Fifth Amendment as well as international treaties.

But, Chief Justice John Roberts and the majority of the Supremes don’t get it? A three-judge panel of the Ninth Circuit didn’t get it? The Ninth Circuit ruminates for months on a question that a District Judge already answered in short order and that most first year law students could figure out in a few minutes. Circuit Courts keep signing off on removal orders produced by a clearly unconstitutional “kangaroo court” system where applicants are denied a fair and impartial decision-maker and the Chief Prosecutor can and does reach in and change results favorable to the applicant that he doesn’t like?

Something is wrong with this picture. And, it starts with intellectual corruption and cowardice at the highest levels of our Federal Judiciary.

Trump has never made any secret that he hates refugees and migrants for unconstitutional racial, ethnic, and political reasons, that he intends to keep them out, and that he really doesn’t care about the Constitution, due process (except for himself), the Refugee Act, or international norms. He has utter contempt for Federal Judges and for Congress.

He tried, with spectacular lack of success, to get Congress to change the immigration and refugee laws by holding “Dreamers” hostage. Failing, he just went ahead and plowed through the Refugee Act, the Fifth Amendment, and the UN Convention, harming and killing folks in his wake. Just like he illegally reprogrammed money to build an unneeded, yet politically significant, “wall” that Congress had pointedly refused to fund. Never let the law, the national interest, or democratic institutions get in the way of the Trump White Nationalist political agenda.

The Court’s response: Let’s look the other way, like we did in the “Travel Ban Case.” We’re sort of offended by your unpresidential conduct, but, hey, as long as it doesn’t affect us and our families we’ll just hope you’ll tone it down because we really don’t want to confront you. But, if you “double down” instead, we’ll pretend like it’s never happened. Oh, and by the way, perhaps we can help you heap further abuse on your “Dreamer hostages.” What’s a little more pain and suffering on kids that we can cover up with legal gobbledygook.

One of Trump’s biggest “dissings” of the Supremes: His Administration’s total disregard and effective overruling of the Supreme’s landmark INS v. Cardoza -Fonseca case requiring the Government to implement a generous interpretation of the “refugee” definition for asylum to conform to the plain language of the statute as well as the Congressional intent behind the Refugee Act. Donald Trump and his immigraton thugs don’t even recognize what “generosity” is, and he has basically wiped out the Refugee Act and its asylum provisions without any changes in the law. How’s that for contempt of Court!

Roberts can blabber his head off about whether there are “Obama Judges” or “Trump Judges.” But, actions speak louder than words; until he and his fellow GOP appointees on the Court actually stand up to Trump’s abuses of the law, his babbling will be drowned out by Trump’s tweets.

Trump’s not right about much. But, maybe he has a point in his contemptuously arrogant attitude that the Supremes and most Circuits won’t dare require him to follow the laws or operate within the Constitution, particularly as his continues to “pack” the Federal Courts with his guaranteed judicial toadies.

That’s going to be the legacy of the “Roberts Court” if our Chiefie doesn’t wake up some morning with a new backbone and start joining his liberal colleagues in putting some breaks on Trump’s outrageous scofflaw conduct in the immigration and asylum area and saving some innocent lives in the process.

And the process should start with emphatically rejecting the Solicitor General’s unethical and often factually inaccurate and legally defective attempts to invoke the Supremes’ aid in short-circuiting the system any time the Big Baby Boss is upset with lower courts properly reigning in his illegal actions and making him follow the rules like everyone else.

Trump’s “malicious incompetence” often doesn’t accomplish much. He’s a divider, not a uniter. He’s only President of his base. The majority of the Americans can just “go pound sand” as far as he’s concerned.

But one thing he might eventually unite Americans on, for differing reasons, is contempt for spineless Federal Courts who won’t stand up to tyranny. And, that won’t be good for the future of our Constituitional Republic.

Due Process Forever! Complicit Courts Never!

That’s why the “New Due Process Army” could be the last, best hope for American’s survival. Constantly Confront Complicit Courts 4 Change! The “blood of the innocents” will be upon their spiffy robes if the “privileged life-tenured ones” don’t get out of their “ivory tower hazes” and have the guts to do their jobs!

PWS

11-20-19

NIGHTMARE ON 1st ST., NE: AS SUPREMES APPEAR SEARCHING FOR WAY TO “STICK IT TO” DREAMERS, TRUMP’S OBSESSION WITH REMOVING LONG-TIME UNDOCUMENTED INDIVIDUALS REMAINS HIGHLY UNPOPULAR!

https://apple.news/AVLJN2Lt1SD-o5h81B1pQqw

Chantal Da Silva reports for Newsweek:

Most Americans Want Undocumented Immigrants To Be Able To Stay Legally

November 12, 2019

The majority of Americans believe it is important for the U.S. to establish a way for most undocumented immigrants in the country to remain here legally, a new study has found.

The revelation from the Pew Research Center’s findings, which were published on Tuesday, comes as the Supreme Court deliberates over whether the Trump administration can legally end the Deferred Action for Childhood Arrivals (DACA) program.

Under the DACA program, nearly 800,000 undocumented immigrants brought to the U.S. by their parents have been allowed to live and work in the country.

Related Stories

• Will Donald Trump Be Able to End DACA? Decision Heads to Supreme Court

However, the Trump administration has sought to bring the program to an end, a bid which was temporarily blocked by courts and which will now be brought before the Supreme Court this week.

According to the Pew Research Center’s findings, two-thirds of Americans (67 percent) said it was “very or somewhat important” for the U.S. to establish a way for “most immigrants in the country illegally to remain her legally.”

While support for a pathway for undocumented immigrants to remain in the U.S. fell largely along party lines, nearly half (48 percent) of Republican and Republican-leaning participants said they were in favor of the idea.

Meanwhile, 82 percent of Democrats and Democratic-leaning independents said they felt it was an important goal.

In addition to establishing a route for most undocumented immigrants to be able to remain in the U.S., Americans also expressed support for taking in refugees fleeing war and violence.

Seventy-three percent of the 9,895 respondents who were surveyed between September 3 and 15 said they felt it was important for the U.S. to take in refugees, with Republicans showing greater support for that goal than in previous years.

In 2016, Pew said, just 40 percent of Republicans identified admitting refugees as an important initiative. This year, however, a majority of Republicans (58 percent) said they supported that goal.

While the majority of Americans were in favor of both of the above initiatives, they also expressed support for strengthening security along the U.S.-Mexico border, with 68 percent of participants in favor of that goal.

Around 9 in 10 Republicans (91 percent) said they were in favor of increasing security at the border, while about half of Democrats and Democratic-leaning respondents (49 percent) said they believed it was an important bid.

The apparent divide between Republicans and Democrats is also significant when it comes to increasing deportations of immigrants unauthorized to be in the U.S.

Roughly eight-in-ten Republicans (83 percent) said they were in favor of increasing deportations, including 51 percent who identified that initiative as “very important.”

Meanwhile, among Democrats, support for that bid was much lower, with around just three-in-10 (31 percent) in favor of boosting deportations and only 10 percent calling it a “very important” goal.”

Despite what the American public thinks, the decision on whether DACA is allowed to move forward currently sits in the Supreme Court’s hands.

Justices will be deliberating on whether federal courts should have been able to block the Trump administration’s decision to end the program—and whether Trump had the legal right to end it in the first place.

If the program does come to an end, the thousands of people who benefit the program, as well as the many who might have applied for DACA protections in the future could face deportation from the U.S.

In an interview with Newsweek on Monday, Carolina Fung Feng, a DACA recipient and plaintiff in one of the cases before the Supreme Court, said that if the Supreme Court rules in the Trump administration’s favor, she could lose her job and be deported back to a country that she left when she was 12-years-old.

“I’d be separated from my family here in New York and, also, I would lose the ability to be independent,” Feng said. “Right now, I live on my own with my younger brother, so if they were to eliminate the DACA program permanently I wouldn’t be able to help my brother pay for the house.”

Feng, who is now 30 and works in the U.S. helping adult learners earn their high school equivalency diplomas, said she cannot understand why the U.S. government would want to see the country lose a population that has contributed to the country’s economy and strengthened its local communities.

“We contribute to this economy. We haven’t done anything wrong,” she said. “We’re just human beings who want to live a better life and we want to protect our families and do the best we can so they can have a better life.”

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

A majority of the Supremes appear ready to “go along to get along” with the latest move by the Trump Administration to screw, demean, and dehumanize undocumented American young people who are continuing to contribute to our society.

A Court that not so long ago had little trouble treating inanimate and amoral large corporate interests as “persons” under the Constitution appeared to have no such concerns for the rights and dignity of a large class of human beings actually living, working, and studying in America.

By either agreeing with the bogus legal argument half-heartedly presented by the Solicitor General or saying Trump could act for no particular reason other than his White Nationalist political agenda, the Supremes appeared willing to allow young people to be held hostage for an extreme nativist anti-immigrant legislative program.

Trump gave his usual “off-the-wall tweet.” First, he smeared so-called “Dreamers” as containing among their ranks “tough, hardened criminals” (even though such individuals were specifically excluded from the program by the Obama Administration). At the same time, he said that if his Supremes gave him what he demanded he would cut a “deal” with the Dems for Dreamer relief. We’ve heard that before.

That’s highly unlikely to happen without regime change in the Executive and the Senate. Similar to the last failed exercise, the Trump Administration would almost certainly demand an end to refugee and asylum programs, sharp cuts to legal immigration, massive new funding for the New American Gulag, and a free hand to summarily deport almost anyone without due process in return for even limited Dreamer relief. That’s a “deal” the Dems aren’t going to make.

Therefore, most Dreamers likely will continue to “twist in the wind” for another election cycle and perhaps longer. With Immigration Court backlogs at an astounding 1.3 million and growing, they won’t be forcibly removed any time in the near future, even if Trump wins re-election.

On the other hand, deprived of work authorization and “color of law” status, most will face obstacles to legal employment or study in the U.S. This will leave them with the “choice” of “going underground” or “self-deportation.” Either way, America will be deprived of the full potential of some of our most talented and dedicated younger generation.

Of course, I hope that my gloomy analysis is wrong. But, things are sure looking like another avoidable judicially-enabled nightmare in a nation that has empowered a White Nationalist minority to run roughshod over individual rights with judicial complicity.

I would expect the Supreme majority’s decision to be loaded with some disingenuous and self-serving references as to how disputes like the fate of the Dreamers should be determined by the “political system.” Then, it will be good to remember that this is a Court that has chosen to take a “pass” on partisan gerrymandering and other gimmicks used by the GOP and the Trump Administration to disenfranchise racial minorities, suppress the vote, and circumvent true democratic rule. In other words, the Supremes know full well that the “political system” is broken to a large extent because they have helped enable its demise.

That’s why it’s important for the New Due Process Army and others who believe in the Constitution, the rule of law, and basic human decency to get out the vote, remove the GOP across the board, and pave the way for better, more intellectually honest judges, who will uphold individual rights and true Constitutional values rather than siding with the tyranny of an unrestrained, unprincipled Executive and inanimate corporate interests in derogation of human rights.

Obviously, there are lots of folks out there, even among the GOP, who don’t “buy in” to Trump’s unrelenting cruelty toward migrants (except, I guess, those migrants he marries and their foreign-born families). The Dems shouldn’t be afraid to run on a program of Dreamer relief combined with other practical, common sense reforms that would allow us to “rationalize” the inevitable and largely positive forces of human migration. We could actually be “beefing up” our revenue collections with a sane immigration policy, rather than hemorrhaging billions on cruel, inhumane, and ultimately futile “enforcement only” schemes and gimmicks. And, yes, with a more rational and realistic system in place, including for the processing of legitimate refugees and asylees, removal of those who evade it would become more efficient, effective, and uniform than it is under our current broken system, at least as administered by the Trump Administration.

Finally, here’s a link to a great article from Zachary Pleat at Mediamatters “calling out” NBC, CBS, and other so-called “mainstream media” for uncritical repetition and re-publication of Trump’s smears and racist-inspired lies about “Dreamers.” https://www.mediamatters.org/immigration/daca-goes-supreme-court-cbs-and-nbc-push-trumps-lie-about-dreamers.

PWS

11-12-19

TRAC DOCUMENTS “MALICIOUIS INCOMPETENCE” IN EOIR‘S STATISTICS: “Of greatest concern is the lack of commitment from EOIR to ensuring the public is provided with accurate and reliable data about the Court’s operations.”

Incomplete and Garbled Immigration Court Data Suggest Lack of Commitment to Accuracy

TRAC recently discovered gross irregularities in recent data releases from the Executive Office for Immigration Review (EOIR), the agency that oversees the US immigration court system. After attempting – unsuccessfully – to work with the EOIR to fix these problems, TRAC decided to make public our observations of the quality of the agency’s public data releases as well as express our concerns about the lack of commitment within the agency to responsible data management.

Policymakers and the public routinely put their faith in federal agencies to provide complete and accurate information about their work. The value of government transparency is even higher in the area of immigration law and the Immigration Courts, which have become topics of considerable concern for Americans from all walks of life and for all three branches of government. In the present context, TRAC views concerns about EOIR’s data inconsistencies – outlined below – as substantive, ongoing, and in need of prompt attention. Of greatest concern is the lack of commitment from EOIR to ensuring the public is provided with accurate and reliable data about the Court’s operations.

“Significant Errors” in Past EOIR Data

This is not the first time the public has identified significant inaccuracies in EOIR’s reported data. For instance, the Supreme Court of the United States relied upon figures provided by the EOIR as the basis for a major ruling affecting ICE detention practices. After the Supreme Court decided the case, the public discovered that the figures provided by the EOIR were fundamentally wrong. The EOIR did not uncover the data irregularities on its own. The EOIR’s mistakes were only recognized because the public obtained the underlying data through a Freedom of Information Act (FOIA) request and identified the relevant discrepancies.

After the public alerted the government to its inaccuracies, in 2016 the U.S. Solicitor General was compelled to issue a formal letter to the Supreme Court apologizing for providing inaccurate data. The following excerpt of the Solicitor General’s letter on August 26, 2016 attests to this error:

“This letter is submitted in order to correct and clarify statements the government made in its submissions. … EOIR made several significant errors in calculating those figures. … This Court’s opinion cites figures that ‘EOIR ha[d] calculated,’ …, and those are, in fact, the figures EOIR had calculated, albeit incorrectly. … The Court therefore may wish to amend its opinion…” (emphasis added)

This example illustrates the very real danger posed by the EOIR’s mishandling of data, as well as the value to society – and the government itself – of ongoing oversight through Freedom of Information Act (FOIA) requests. Despite the EOIR’s past data mistakes, however, the quality of the agency’s data releases has recently declined to unacceptable levels, as we discuss in the following section.

Recent Data Trouble at the EOIR

As a result of TRAC’s ongoing FOIA requests, the Executive Office for Immigration Review releases a large batch of anonymized data about Immigration Court cases every month. Statistics on the operation of the Immigration Courts largely rely on information kept in a massive database maintained by the EOIR. The EOIR records information on each matter filed with the court and tracks subsequent events as the Court processes each case. This data is central to the Court’s ability to efficiently and effectively manage its workload.

Although this data is highly valuable to policymakers and the public, the EOIR’s mishandling of the data undermines its accuracy and public value. These data problems have been occurring with increasing regularity. Severe irregularities with the September 2019 data release set a new low.

On October 9, 2019, the EOIR responded to TRAC’s FOIA request for updated case-by-case data through September 2019. TRAC promptly began processing the data in order to update TRAC’s online tools and reports, and discovered serious inconsistencies that made the data unusable. TRAC alerted the EOIR to the problems we uncovered. The chronology below summarizes the cycle of data mishandling for the September data release, and TRAC’s attempts to work with the EOIR to obtain complete and corrected data.

Data Release, Batch 1. The initial release of the EOIR’s September data included 11 separate files of records on Immigration Court proceedings that were incorrectly formatted. The garbled data resulted in substantial confusion over the relationship between certain variables and values, with some values appearing to apply to the wrong variables in the file. If potential users were even able to read the garbled data, one could reach entirely erroneous conclusions about court events. As soon as TRAC discovered these issues, it alerted the EOIR directly. EOIR promised to look into the matter.

Data Release, Batch 2. In response to TRAC’s notification, the EOIR replaced the first release with a second release and informed TRAC that the problems had been fixed. However, when TRAC processed the second release, it found that while the first set of problems had been fixed, an entirely new set of problems had occurred. In Batch 2, thousands of records of court proceedings and 2.8 million records on scheduled hearings – hearings and proceedings which were included in the first release – had entirely disappeared. TRAC alerted the EOIR directly to the new set of data inconsistencies. EOIR promised once again to look into the matter.

Data Release, Batch 3. The EOIR informed TRAC that it had fixed these new problems, and that TRAC could trust Batch 3 of the EOIR’s data release. Note that EOIR doesn’t change the labels it uses for each release; the file name remains the same and hence on its face indistinguishable from any previous release. After processing millions of records contained in the series of separate tables that made up the new release, TRAC found that problems in batch three were identical to problems in batch two. We again notified EOIR that the problems remained. At first EOIR insisted that TRAC was wrong and that the problems had been fixed. It later emerged that while the General Counsel’s office of EOIR (TRAC’s point of contact) believed a third and corrected release was being supplied, the files had not been changed but were actually the same files that TRAC had received in Batch 2.

Data Release, Batch 3 (cont.) TRAC was finally provided access to what was again billed as the corrected September release. TRAC again processed these files. This time, based on total record counts it appeared that the missing 2.8 million records on scheduled hearings had reappeared. However, some court proceedings that had been contained in Batch 1 were still missing. And there were still other puzzling omissions which we describe in more detail below.

After this series of mistakes, TRAC urged the agency to implement basic quality control procedures to ensure that the EOIR’s data releases to the public were not inadvertently garbled or incomplete. Moreover, TRAC expressed concern about the EOIR’s underlying data management practices which posed a risk to both the public and the government if left unaddressed. We conveyed these concerns to EOIR noting specifically:

“There are standard procedures that anyone in charge of maintaining databases use. The pattern of repeatedly releasing files which are either unreadable or incomplete demonstrates the agency’s standard operating procedures are woefully inadequate.

This really needs to be taken seriously. Without answers to our questions that get to the bottom of what occurred, identifying what went wrong, and implementing a plan to catch mistakes before the agency publicly distributes bad data, means that history will keep repeating itself.”

On Friday, October 25, 2019, while admitting mistakes had been made, the EOIR dug in its heels. The agency responded to TRAC’s entreaties by sidestepping the underlying issue and avoiding responsibility for its routine inaccuracies:

“[T]he FOIA [Freedom of Information Act] does not require the Agency to create records in response to your specific questions, nor to certify the accuracy of data contained in responsive documents.”

TRAC was forced to take note of the EOIR’s unwillingness to fully correct their mistakes and to work with the public to resolve the declining quality in their data releases.

The Case of the EOIR’s Disappearing Data

After recognizing the seeming inability of EOIR to produce a correct and complete data release for September 2019, TRAC began digging deeper into the problem.

Our concern about EOIR’s data was already heightened. We recently discovered that some months ago the EOIR had begun silently deleting swaths of records in their entirety from the data releases that we and other members of the public received. EOIR belatedly told us that withholding of entire records was necessary to protect immigrants’ privacy. This rationale was perplexing since these records were already anonymized and all identifying details deleted. Regardless of the EOIR’s justification for withholding the records, the agency had started making these deletions without alerting us that it was doing so, and failed to mark the data in any way to indicate the magnitude of the deletions or indicate in which files the deletions occurred.

TRAC is in a fairly unique position to examine this problem. For many years, TRAC has been regularly requesting snapshots of anonymized data from EOIR’s database as part of our mission to provide the public (and often other government agencies themselves) with access to reliable, accurate data about the Immigration Courts. Because we receive and retain these monthly snapshots, we are able to monitor changes in these releases over time and assess whether releases are incomplete or inaccurate in some other way.

Therefore, TRAC undertook a careful comparison by matching the records received in the September 2019 release against the EOIR’s release for the previous month, August 2019, and with the release we received a year ago for September 2018. This time we matched records based on unique identification numbers rather than simply comparing total record counts. This allowed us to identify records which the EOIR released in the past but were missing entirely from the current shipment.

The results of this comparison were sobering. Compared to the August 2019 release, the (allegedly-accurate) final September 2019 release was inexplicably missing more than 1,500 applications for relief that were present the previous month. We further found that 896,906 applications for relief which were present in the September 2018 release from a year ago were missing from the September 2019 files we received. This discrepancy of nearly a million records largely occurred because the EOIR appears to have started silently but systematically deleting records.

Compared to the data from August 2019, the EOIR’s files for September were also missing records on over 600 charges DHS had filed. Also missing were over 700 case and/or court proceeding records, and over 900 records on scheduled hearings. An additional 1,200 records flagging various specific types of cases were also missing. For context, this flagging system is used to identify juveniles, recently arrived families seeking asylum, and immigrants required to remain in Mexico under the Migration Protection Protocols, and other special cases.

When the records in the September 2019 release TRAC received were matched with those from the September 2018 release a year earlier, the problems we uncovered multiplied. It was clear that the problem of missing records grew by leaps and bounds with the passage of time.

EOIR Data Management: Problems and Solutions

Based on the investigation above, TRAC identified key gaps in the EOIR’s data verification procedures that lead to unreliable and inaccurate data releases.

Unintentional data removal. The EOIR’s data is inconsistent because the agency apparently does not perform a simple yet essential data verification step: it does not compare the number of records in its source database and the number of records in its released files to ensure that no records have been lost along the way. This is not merely a best practice. It is an industry standard for agencies managing large databases, and it is a routine practice in many of the EOIR’s peer agencies that provide large data releases to TRAC.

Intentional data removal. The EOIR also does not appear to be keeping track of intentionally deleted records. If the EOIR is screening out records for specific reasons, then the number withheld for each reason in a file should be counted and these counts provided. The number withheld plus the number released should match the total number of records read in to ensure reliability.

Garbled data releases. The EOIR is paying insufficient attention to how data releases are produced and formatted. Columns and rows in each table need to properly line up; otherwise information becomes garbled. And since EOIR’s database consists of many closely interconnected tables, copying data in individual tables at widely separated points in time inherently means the information will be out of sync.

Possible data deletion in master database. Deletions of the EOIR’s original source records need to be carefully tracked and procedures in place to prevent unauthorized deletions from occurring. If applied systematically, such a verification process would also pinpoint whether there were deletions made in EOIR’s original source records. Any suspicious deletions need to be investigated to ensure the integrity and completeness of this master database is maintained.

If the EOIR does not implement basic data verification procedures, the public cannot tell if records were intentionally withheld and why they were withheld, or if records were accidentally omitted during the data copying process. The failure to address these problems also means that the public has no way to test for potential problem areas in EOIR’s underlying master data files.

Accuracy, Reliability, Cooperation

Under any circumstance, maintaining a massive database of this nature is challenging. Clearly it requires the resources necessary for day-to-day operations. More fundamentally, however, it requires a commitment on behalf of the agency to provide the public with complete, accurate, and reliable data about the agency’s operations. When TRAC uncovered unexplained data issues in the past, we have brought them to the attention of the EOIR and generally found the agency to be fairly responsive and committed to ensuring accurate reporting. The recent change in posture is therefore concerning. Moreover, because EOIR’s data are relied upon as part of the official record of court filings and proceedings that have taken place, one should not expect official records to simply go missing without explanation.

It is deeply troubling that rather than working cooperatively with TRAC to clear up the reasons for these unexplained disappearances, the agency has decided to dig in its heels and insist the public is not entitled to have answers to why records are missing from the data EOIR releases to the public. TRAC urges the EOIR to take the basic steps necessary for managing any large database, especially a database of as inestimable value and relevance as the one EOIR maintains for the Immigration Courts.

TRAC is a nonpartisan, nonprofit data research center affiliated with the Newhouse School of Public Communications and the Whitman School of Management, both at Syracuse University. For more information, to subscribe, or to donate, contact trac@syr.edu or call 315-443-3563.

Report date: October 31, 2019

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Without accurate data, there can be no effective oversight, by Congress, the Judiciary, or the public (which contrary to their nasty attitude, is whom EOIR actually serves). TRAC’s experience with “malicious incompetence” is typical of the Trump Administration’s “stonewalling” and disregard of honesty and public service. They are too busy denying Due Process and evading the law to bother with facts.

Quality is simply not a factor, or even an objective, at the “New EOIR!” Unfortunately, that’s true not only in record keeping, but also in making life or death adjudications.

The only thing that makes any difference in this Administration is a preconceived White Nationalist agenda that has absolutely nothing to do with facts or public service and everything to do with racism, xenophobia, and political pandering. Obviously, because facts and data don’t support, and typically directly refute, this Administration’s draconian anti-immigrant initiatives, they have no interest in the truth or accuracy. Indeed, as in most things, facts and truth are quite damaging to the Trump Administration’s programs.

There is absolutely no excuse for EOIR’s continued existence. Much of the information that EOIR feeds to the Judiciary, through DOJ attorneys, is misleading, inaccurate, or perhaps even fabricated. By not putting a stop to EOIR’s nonsense and non-responsiveness, both Congress and the Article III Courts are demeaning themselves and shirking their Constitutional responsibilities.

PWS

11-01-19

SUPREMES TO DECIDE CONSTITUTIONALITY OF “EXPEDITED REMOVAL” IN ASYLUM CONTEXT

Ariane de Vogue
Supreme Court Reporter
CNN

https://apple.news/AYpmeq0mPTTm9sB1mjbDRyg

Ariane de Vogue and Priscilla Alvarez, CNN:

The Supreme Court agreed on Friday to take up a major immigration case concerning the rights of undocumented immigrants seeking asylum to challenge their expedited removal proceedings.

The Trump administration had asked the court to review an opinion of the 9th US Circuit Court of Appeals that would allow those who have been denied asylum the opportunity to make their claims in federal courts.

If the opinion is ultimately upheld, it could open the doors to more asylum seekers at a time when the administration has attempted to dramatically limit who’s eligible for asylum in the US.

The case centers on Vijayakumar Thuraissigiam, a native citizen of Sri Lanka who’s a member of an ethnic minority group. He was arrested 25 yards north of the US-Mexico border and placed in expedited removal proceedings. That fast-track deportation procedure allows immigration authorities to remove an individual without a hearing before an immigration judge.

Thuraissigiam applied for asylum, citing fear of persecution in Sri Lanka, and an asylum officer determined he had not established a credible fear of persecution. A supervising officer and an immigration judge affirmed the decision. Under the law, after the denial, Thuraissigiam was ineligible to challenge the finding.

Thuraissigiam went to federal district court, arguing that the expedited removal violated his constitutional rights. A district court said the law did not authorize the court to hear his claims. The 9th US Circuit Court of Appeals agreed, but said the law violates the Suspension Clause, which, the court held, requires Thuraissigiam, even as a noncitizen, to have a “meaningful opportunity” to demonstrate that he is being held against the law.

The Trump administration argued in briefs that the law — which sharply limits judicial review to final orders of removal — was passed so that the asylum system would not be abused. The law offers some exceptions, but they were not met by Thuraissigiam.

“The Ninth Circuit held that the Suspension Clause provides respondent with a constitutional right to additional review of his application for admission, beyond the review Congress has established,” Solicitor General Noel Francisco argued in court briefs. He said Thuraissigiam “failed to satisfy even the threshold screening standard.”

A Congressional Research Service report notes that the Supreme Court “has repeatedly held” that the government may exclude immigrants “without affording them the due process protections that traditionally apply to persons physically present in the United States.”

Expedited removal has been a point of contention in recent months, as the Trump administration has moved to expand the procedure and cast a wider net over undocumented immigrants subject to it. A federal judge blocked the move in a separate case last month.

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The answer is actually simple. As a person applying for asylum in the U.S., the respondent is entitled to Due Process. Since the Asylum Officer and the Immigration Judge both work for the Executive, the respondent never had access to the “fair and impartial” decision maker to which he is entitled under our Constitution.

Not only does the Suspension Clause give him a right to access to the Article III courts, Due Process under the Fifth Amendment also requires it. Therefore, the statute is unconstitutional.

But don’t count on the Supremes to do the right and legal thing here. As the Congressional Research Service notes, the Supremes have a history of manipulating the law to avoid the straightforward and correct answers when it comes to foreign nationals seeking to invoke the protections to which they are entitled under our laws.

“Dred Scottification” predated the Trump Administration. But, the Trump Administration intends to build on making foreign nationals “non-persons” under our Constitution to “de-humanize” as many classes of persons in America as the Article III Courts let it get away with. Who knows, you might be next on the list!

PWS

10-18-19

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