"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
More bogus, anti-immigrant, anti-Due Process certification decisions from AG
Pereira mess in scheduling
Cancellation mess; hundreds of thousands eligible for relief; no plans for adjudication
Dockets will continue to be screwed up by failure of responsible enforcement policies by DHS, failure of prosecutorial discretion exercised by virtually all other law enforcement authorities, and mindless, inappropriate “re-docketing” of previously Administratively Closed cases for no particular reason except White Nationalist inspired meanness
Massive returns of asylum and other improperly decided cases to Immigration Courts by Article IIIs
More deaths, illness, abuses resulting from Trump’s cruel, ill-conceived detention and border policies
Mexico and Article IIIs will,”push back” against Administration’s ill-conceived plans to “dump” legitimate asylum seekers over Mexican border
Public Charge Controversy
TPS Termination & Litigation
One of Trump’s dumbest, most unnecessary, & disruptive moves will wreak havoc on the economy and the legal system
Lots of fraud, waste, and abuse at DOJ and DHS will be exposed by House Committees
Will new AG prove to be “Button Down Version of Jeff Sessions?”
ICE arrested undocumented adults who sought to take in immigrant children
By Tal Kopan
WASHINGTON — The Trump administration has arrested 170 undocumented immigrants who came forward to try to take migrant children out of government custody, including more than 100 with no criminal record, federal officials said Monday.
The new totals were released as the number of undocumented immigrant children in government custody has reached record highs, with no signs of slowing down.
According to an Immigration and Customs Enforcement spokesman, the agency arrested 170 immigrants from July through November on the basis of information the government learned about them when they applied to take an immigrant child out of custody. Of that group, nearly two-thirds, or 109, had no criminal record.
ICE had confirmed 41 such arrests in September, prompting Democrats to propose legislation to block the practice. California Sen. Kamala Harris has joined onto a bill in the Senate, which has a bipartisan House counterpart, that would bar ICE from arresting an adult seeking to take in a child on the basis of information uncovered in a background check.
Golly gee, and some folks wonder why the “Abolish ICE” Movement continues to gather steam! Yes, ICE performs important law enforcement functions. But, lots of their “mission” isn’t really essential to good law enforcement, and some is actually quite counterproductive and wasteful.
Clearly, there is a case for Congress at least re-examining the amount of funding, priority, and effectiveness of some of which ICE is doing on the “civil side” these days. And, what would be the purpose of jamming more folks into a court system already crumbling under a largely artificially created 1.1 million case backlog? Not much that I can see, unless these folks being “lured” are really “bad actors,” which the majority of them don’t seem to be.
US judge rules against Trump administration in suit over policing grants to ‘sanctuary cities’
Updated 5:21 PM EST November 30, 2018
Washington
A federal judge ruled against the Justice Department on Friday in a lawsuit over withholding federal money from so-called sanctuary cities, the latest blow to the Trump administration’s hardline immigration tactics.
The lawsuit challenged the Justice Department’s efforts to punish sanctuary cities by withholding a key law enforcement grant the department said was available only to cities that complied with specific immigration enforcement measures.
In July 2017, then-Attorney General Jeff Sessions announced that applicants for Edward Byrne Memorial Justice Assistance Grants would have to comply with federal immigration enforcement in ways that were unlike years past, like allowing federal law enforcement agents to have access to detainees in jails for questioning about their immigration status.
According to the ruling, the seven states involved in the lawsuit, as well as New York City, had been receiving the grant money since Congress created the fund for the “modern version of the program in 2006,” and the funds “collectively totaled over $25 million.”
“In 2017, for the first time in the history of the program, the U.S. Department of Justice (‘DOJ’) and Attorney General (collectively, ‘Defendants’) imposed three immigration-related conditions that grantees must comply with in order to receive funding,” wrote Judge Edgardo Ramos, of the US District Court for the Southern District of New York, in his ruling.
New York Attorney General Barbara Underwood led the suit and was joined by New Jersey, Rhode Island, Connecticut, Massachusetts, Washington state and Virginia.
Underwood said in a statement on Friday that the ruling was “a major win for New Yorkers’ public safety.” CNN has reached out to the Justice Department for comment.
This isn’t the first ruling of its kind — in April, a panel of three judges from the 7th US Circuit Court of Appeals upheld a ruling in favor of the city of Chicago that blocked the Justice Department from adding new requirements for the policing grants.
A federal district court judge on Friday denied the Trump administration’s request to block or limit the scope of a ruling that temporarily prohibits the government from enforcing its ban on transgender people serving in the military.
Judge Colleen Kollar-Kotelly, a Clinton appointee on the U.S. District Court for the District of Columbia, said the court is not convinced the government will suffer irreparable harm without a stay of the court’s October 2017 preliminary injunction.
The government had asked for a stay pending any potential, future proceedings in the Supreme Court. Bypassing normal judicial order, the Department of Justice asked the Supreme Court last week to review the case before the D.C. Circuit Court of Appeals has ruled.
Arguments before the appeals court are scheduled for Dec. 10.
At the very least, the government asked the district court to limit the nationwide scope of the injunction while the court weighs in, but Kollar-Kotelly refused. She said the government had not convinced the court that a more limited injunction is appropriate.
“Without supporting evidence, defendants’ bare assertion that the Court’s injunction poses a threat to military readiness is insufficient to overcome the public interest in ensuring that the government does not engage in unconstitutional and discriminatory conduct,” she said.
“After all, ‘it must be remembered that all Plaintiffs seek during this litigation is to serve their nation with honor and dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation from family and friends, and to willingly make the ultimate sacrifice of their lives if necessary to protect the Nation, the people of the United States, and the Constitution against all who would attack them,’ ” she said.
Not surprisingly, policies stemming from racism and homophobia being advanced for crass political reasons aren’t doing very well in Federal Courts. There, the judges tend to prefer cogent legal arguments. The latter is something for which Gonzo was never known. Indeed, a number of the biased based positions he advanced in support of the Administration were so outlandish that the judges actually gave the Government additional time to develop a legal rationale. But, that also proved to be time wasted, because there never was any legal rationale for these policies and legal positions. Just hate and bias, and an ignorance of the real meaning of our Constitution.
There’s lots of irony, indeed total absurdity, in Sessions’s audaciously bogus claim that he “stood for the rule of law.” Safe to say that no Attorney General since “John the Con” Mitchell has done so much to undermine our Constitutional system and the real “rule of law.”
Etowah: the Ice detention center with the goal to ‘make your life miserable’
Campaign is under way to close Alabama facility routinely identified by advocates and detainees as one of the worst in US
Khushbu Shah in Gadsden, Alabama for The Guardian:
The Etowah Detention Center, an all-male facility housing about 300 detainees. Photograph: Adelante Alabama
During his detention in Gadsden, Alabama, Alex Matheus started losing his hair.
It wasn’t just that he was getting older, his hair was falling out in clumps from the stress and frustration of long-term detention in the custody of Immigration and Customs Enforcement (Ice).
“That’s very common in Etowah,” the 44-year-old Venezuelan said by telephone from his new, temporary home in Italy, where he is living as he seeks to return to the US.
Housed in the Gadsden county jail since the late 1990s, the gray slab of concrete that is the Etowah Detention Center, is routinely identified by lawyers, advocates and detainees as one of the worst Ice facilities in the United States. It has one of the longest detention times of all Ice facilities.
The all-male facility, housing on average 300 detainees according to Ice data, ranks sixth in the highest number of calls made to the Ice Detention Reporting and Information Line related to sexual and/or physical abuse incidents, according to a study from Freedom for Immigrants. Human Rights Watch documented the “spotty access to healthcare” at Etowah. There is a campaign run by civil, immigrant, and human rights organizations to shut down Etowah.
Alex Matheus the day he left Etowah. Photograph: The Guardian
Sitting next to the sheriff’s office in Gadsden, the detention facility stands out because of the barbed wire wrapped around the wall. There’s not much else around. The average income in town is just under $19,000 and more than a quarter of the community lives in poverty. This decade alone, the population has decreased 4%. So it makes sense the county would like to keep a multimillion dollar endeavor going.
Matheus spent 17 months in Etowah enduring the bare bones facilities. “They don’t have a yard. They don’t have recreational facilities. They don’t have libraries. They don’t have big common areas to hold people.” He wasn’t allowed outside its concrete walls, even for a short walk, for more than 500 days – until his deportation.
A Venezuelan asylum seeker, who had lived in the United States since 2000, Matheus broke commercial laws by shipping gas masks to the government opposition in his home country. He spent time in federal prison and on the day of his release, was taken straight to Ice custody, first at Stewart Detention Center in Lumpkin, Georgia, and then to Etowah.
Kenyan asylum seeker Sylvester Owino arrived at Etowah in 2013, after being in Ice custody for more than seven years in California and Arizona. As a “prolonged detainee”, little should have surprised the Kenyan asylum seeker about his latest detention center.
Protesters at Etowah. There is a campaign run by civil, immigrant, and human rights organizations to shut down the facility. Photograph: Adelante Alabama
But things were done differently in rural Alabama.
In his first weeks, he noticed officers manning the detention facility were selling contraband to detainees. Vodka in plastic water bottles for $50. Weed in letter-sized white envelopes for $400. Cell phones went for $300. Officers sold a pack of cigarettes for $100.
Then there were the bribes.
One day, an officer approached Owino, telling him he didn’t have lunch and asking Owino to make him something to eat. So the detainee used the ramen noodles he had bought through the commissary, and mixed it with tuna for the officer.
“You share the food so they gave you privileges. So instead of being locked down, they let you out. You give him honey buns, you make him coffee,” he said.
With his budget noodle offering, Owino said he was able to watch a soccer game.
The Guardian spoke with a number of detainees – and reviewed a number of lawsuits – who had spent recent months and years in the facility. All complained about the standard of nutrition. In March, Alabama’s al.com reported now-outgoing sheriff Todd Entrekin legally – through a loophole in state law – pocketed nearly $750,000 allocated for food provisions in the jail.
Months later, after national coverage and backlash, Governor Kay Ivey sent a memorandum to the state comptroller rescinding the validity of the law, no longer allowing food services allowances to be made to sheriff’s accounts directly.
A 2016 report from the Department of Homeland Security Office of Detention Oversight Compliance Inspection logged similar instances they called “deficiencies” in food and medical standards.
Ice said Etowah operates in accordance with its standards. “As far as facility conditions, all Ice facilities are subject to regular inspections, both announced and unannounced, and those inspections have repeatedly found the Etowah County Detention Center to operate in compliance with Ice’s rigorous national detention standards. The facility was most-recently inspected in July,” Ice spokesman Bryan Cox told the Guardian in an email.
The almost two years Owino spent in Etowah were the worst years of his detention, Owino said.
Matheus agreed. “When you are anyone in the US, you start to fight your case hard and they send you to Alabama to wear you out,” he said. “I spoke to one [officer] and the guy said, my job is basically to make your life miserable. He told me that straight to my face”
The Etowah County Sheriff’s Office would probably like to change that perception. On a recent Guardian visit to the facility, Captain Mike O’Bryant introduced Jose Alfredo Reyes, 40, who has been in the facility for more than 18 months and had already agreed to an interview.
Reyes had nothing bad to say about the facility, except the lack of sunlight and mediocre food. “I told the captain, don’t worry, I won’t say nothing bad about you!” he said.
According to Christina Mansfield, the co-executive director of Freedom for Immigrants, ‘Etowah is one of the worst immigrant jails in the country.’ Photograph: Adelante Alabama
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According to Christina Mansfield, the co-executive director of Freedom for Immigrants, “Etowah County Detention Center is one of the worst immigrant jails in the country. For years we have been documenting and drawing attention to abuses – such as physical assault and medical neglect – at the hands of the sheriff’s office and Ice. Several detained individuals and our volunteers have even been retaliated against for speaking out against these intolerable conditions. It’s time for Etowah to be shut down.”
Cox, in response to the allegations outlined in this story, said: “The allegations you’ve received are contradicted by the inspection findings of numerous entities that include independent third-party inspectors.”
Etowah sheriff’s office did not respond to the Guardian’s request for comments on the allegations put forth by former detainees and activists.
Matheus never had his wife visit from Florida because he said it didn’t make sense for her to visit for 20 minutes and still only talk through a video link.
He was deported in May 2017, back to Venezuela, where he was immediately detained. “They knew everything about me. They had a full folder against me. The US government provided everything to them. I had to pay [a bribe of] thousands of dollars to be released.”
Owino had the same experience as Kenyan authorities have also received his asylum application and related documents. He is out on bond in California, with a hearing coming up in the coming months for his asylum case.
Matheus left Venezuela in early October to seek citizenship in Italy, the home of his grandparents. Now he lives alone, holding onto receding hope he may be able to return to the United States as his case is fought in court. He lives alone, in a small apartment in Calabria, away from his wife in Florida – whom he hasn’t seen in nearly a year. The impact of his time in Etowah remains with him.
“People forget you were a real person, a family guy, a regular person. Basically, you are going back to society and you are supposed to function as a normal person again. The problem with these places is that they dehumanize you so much. They hinder everything. They screw your life,” he said.
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These are the kinds of abuses that happen when we enable the DHS/ICE “New American Gulag.” It’s time for some oversight and a major reduction in the funds allocated for unnecessary and inhumane immigration detention. It’s also past time for Congress to repeal so-called “mandatory indefinite detention” (before it is held to be unconstitutional).
The House GOP’s near-total abdication of any oversight role has done more than just shield President Trump on matters involving his finances and Russian collusion. It has also resulted in almost no serious scrutiny of the true depths of cruelty, inhumanity and bad-faith rationalization driving important aspects of Trump’s policyagenda — in particular, on his signature issue of immigration.
That’s about to change.
In an interview with me, the incoming chairman of the House Homeland Security Committee vowed that when Democrats take over in January, they will undertake thorough and wide-ranging scrutiny of the justifications behind — and executions of — the top items in Trump’s immigration agenda, from the family separations, to the thinly veiled Muslim ban, to the handling of the current turmoil involving migrants at the border.
“We will visit the border,” Rep. Bennie Thompson (D-Miss.), who is expected to chair the committee, which has jurisdiction over the Department of Homeland Security, told me. “We will hold hearings in committee on any and all aspects of DHS. … We will not back off of this issue.”
This oversight — which could result in calling for testimony from Stephen Miller, the architect of Trump’s immigration agenda — will include scrutiny of the administration’s justifications for its policies. Importantly, Thompson tells me Democrats will seek to grill officials on what went into Trump’s public statements on various aspects of the issue, many of which are falsehoods.
Migrant caravan crisis escalates with tear gas at border fence
U.S. authorities fired tear gas at members of a Central American migrant caravan who had rushed the fencing along the U.S. border with Mexico on Nov. 25.(Video: Drea Cornejo , Blair Guild/Photo: Kim Kyung-Hoon/Reuters/The Washington Post)
To be clear, Trump has used these rationales to justify actual policies with real-world impact, such as the effort to cruelly restrict asylum-applications to only official points of entry. Trump has also threatened a total border shutdown. Hearings could reveal that the justifications are nonsense, and spotlight their true arbitrary and cruel nature (putting aside for now that their real motive is ethno-nationalism).
“All this innuendo we hear about criminals coming in the caravan, we just want to know, how did you validate this?” Thompson told me, adding that DHS officials would be called on in hearings to account for Trump’s claims. “Policy has to be backed up with evidence. So we will do rigorous oversight.”
This will also include a look at the recent tear-gassing of migrants, and the administration’s public statements about it and justifications, Thompson said. Homeland Security Secretary Kirstjen Nielsen has defended the fact that tear gas appears to have impacted children by claiming they were used as “human shields.”
The use of the military as a prop
Thompson said such scrutiny could dovetail with an examination of Trump’s use of the military at the border as campaign propaganda, though that might involve the House Armed Services Committee. “We have to get full disclosure in a public setting or a classified setting,” Thompson said. “Under no circumstances will we not get information.”
The overall goal, Thompson said, will be this: “As a nation of immigrants ourselves, we want to make sure that our process of immigration that includes asylum-seekers is constitutional and represents American values.”
Family separations and the travel ban
Thompson told me the committee would also look at the process leading up to the travel ban, which proceeded despite the fact that two internal Homeland Security analyses undercut its national security rationale.
Democrats can demand that DHS officials justify that policy. “What did you use to come up with this travel ban? How did you select these countries?” Thompson said, previewing the inquiry and vowing subpoenas if necessary. “We will ask for any written documentation that went towards putting the ban in place, what individuals were consulted, and what the process consisted of.”
Thompson also said the run-up to the implementation of the family separation policy and its rationale would receive similar scrutiny, as well as at the conditions under which children have been held, such as the reported Texas “tent city.” “Somebody is going to have to come in and tell us, ‘Is this the most efficient way to manage the situation?’” Thompson said. But also: “How did we get here in the first place?”
What can Democrats do?
One big question: What will House Democrats do legislatively against such policies? Thompson told me the goal is to secure cooperation with DHS, but in cases where the agency continues policies that Democrats deem terribly misguided or serious abuses, they can try to legislate against them. That would run headlong into Trump and the GOP-controlled Senate, at which point one could see discussion of targeted defunding of certain policies, though whether that will happen or what that might look like remains to be seen.
“As far as I’m concerned, no option is off the table,” Thompson said. Some more moderate House Democrats who won tougher districts might balk at such a stance, but Thompson said: “Every committee has responsibilities, and we have to carry them out.”
The big story here is that Trump has relied on the outright dismissal of his own administration’s factual determinations to justify many policies, not just on immigration, but also with his drive to weaken efforts to combat global warming despite the big report warning of the dire threats it poses.
The administration will strenuously resist Democratic oversight, and I don’t want to overstate what it can accomplish. But House Democrats must at least try to get into the fight against Trump’s war on facts and empiricism wherever possible. And when it comes to the humanitarian crises Trump has wrought on immigration, this is particularly urgent.
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Finally, some much-needed, long-overdue accountability, fact-finding, and truth about Trump’s intentionally cruel and usually lawless immigration policies and those sycophants and toadies who implement them and egg him on. No, it won’t necessarily change things overnight. But, having some “pushback” and setting the factual record straight for further action is an important first step. And, I hope that the absolutely avoidable politically created mess in the U.S. Immigration Courts, and their disgraceful abandonment of Due Process as their sole focus, is high on the oversight list!
Trump gambled big on sanctuary cities. Could he lose big?
Tal Kopan
WASHINGTON — On July 1, 2015, a single gunshot rang out on San Francisco’s Pier 14, fatally wounding 32-year-old Kate Steinle. By July 3, then-presidential candidate Donald Trump was tweeting about it.
An undocumented immigrant and five-time deportee who had been released from San Francisco jail was charged with her murder, though he was acquitted two years later. By the time he went on trial, the incident had become a rallying cry for conservatives in general and Trump in particular. He took action just days into his presidency to block federal funds to sanctuary cities, a catch-all term that describes jurisdictions that limit cooperation with federal immigration enforcement.
And then Trump’s administration began to lose — repeatedly — in court.
Now, experts say that by continuing to press the issue, the administration’s strategy could backfire — possibly jeopardizing the cooperation that federal authorities now receive from many local governments and preventing Congress from even passing legislation on the topic.
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Trump’s first legal setback came in response to the executive order he issued to block any federal funding to sanctuary cities, when a federal judge in San Francisco ruled in April 2017 that he could not broadly withhold money to force cooperation with immigration agents.
Trump, via then-Attorney General Jeff Sessions, then tried to impose more targeted punishment, making law-enforcement grant money conditional on cities’ cooperation with immigration enforcement. Courts in Chicago, Philadelphia, Los Angeles and San Francisco again blocked his efforts. The Justice Department also sued California to try to pre-empt its state sanctuary law. A federal judge in Sacramento blocked that as well.
But it’s not just the grants that are at stake — the administration is at risk of losing the one law on which it has hung all its efforts.
The key development came in May in an unrelated case, when the Supreme Court ruled that a federal law prohibiting states from legalizing sports gambling was unconstitutional. The justices said the law illegally “commandeers” states to follow federal policy and intrudes on their lawmaking authority.
The decision had major ramifications for sanctuary cities litigation.
The Trump administration’s anti-sanctuary campaign is based on a piece of immigration law commonly referred to by its code number, 1373. That law prohibits state and local governments from restricting information about an immigrant’s status from federal officials.
Former President Barack Obama’s administration made some law enforcement grant money conditional on compliance with 1373. The Trump administration seized on that and sought to expand the interpretation of what was required of cities and states.
The law, government lawyers argued, covered more than just a person’s immigration status. They said it also required local governments to share the date immigrants would be released from custody, so federal agents could pick them up. The law became the underpinning of the government’s lawsuit over California’s sanctuary legislation.
However, lower courts following the Supreme Court’s ruling in the gambling case have applied it to 1373-related lawsuits — and have found that the immigration law also violates local governments’ rights.
A federal judge in Philadelphia ruled in June that not only were the immigration-related conditions on grants unconstitutional, so was 1373 itself. A federal judge in Chicago followed suit in July. In October, U.S. District Judge William Orrick in San Francisco agreed, ruling in favor of San Francisco and striking down 1373.
If the administration leaves those cases where they are, the effects will be relatively minimal. Each of those lower court rulings applies only to the cities that sued the Trump administration — they would not become nationally binding precedent unless federal lawyers appeal the decisions to higher courts and lose.
“If I were them, I would not want this at the Supreme Court, and would just leave it, leave these decisions as they are and just let the rest of the country continue to think that 1373 is constitutional,” said Bill Hing, professor of law and migration studies at the University of San Francisco.
Some issues in the cases have been heard on appeal, but those were decided before the Supreme Court’s gambling ruling. The Justice Department has filed a pending appeal in the Chicago case, looking not to overturn the judge’s decision but to seek a ruling that it and the administration’s other courtroom defeats should apply only to the individual cities and not nationwide.
Josh Blackman, a professor at the South Texas College of Law Houston and contributor to the conservative legal group the Federalist Society, argues that winning on the issue of limiting nationwide rulings would be worth it, even if the administration jeopardizes 1373 in the process. He argues that appellate courts can decide these cases without needing to weigh in on 1373, which he called a “useless statute.”
“If that statute’s declared unconstitutional, then so what?” Blackman said. “The government often enacts policies that they know have a greater than average chance of failing, but if it advances the agenda of the executive branch, it’s worth taking the chance.”
Hing, though, called that strategy risky in light of the high court’s gambling decision. If the Trump administration keeps losing, he said, cities that cooperate now with federal immigration authorities could be sued by sanctuary advocates with legal precedent on their side.
Justice Department spokesman Steven Stafford said it was “absurd” to argue that sanctuary jurisdictions should receive federal law enforcement funding. The agency, he says, wants local authorities to “stop actively obstructing federal law enforcement.”
That position “is not only allowed by the Constitution, it is demanded by the Constitution,” Stafford said. “The Supreme Court’s decision in (the gambling case) has no bearing on the federal government’s ability to place conditions on funding.”
Immigration attorney Leon Fresco, who served in the Justice Department under Obama, said the Trump administration may have never believed it would prevail on sanctuary cities, but pursued the case to win a political talking point and potentially spur congressional action. But he warned that if courts make clear it’s unconstitutional for the federal government to force state and local governments to cooperate with immigration agents, it could give congressional Democrats cover for not acting.
“They’re making it easier for Democrats to say, ‘It’s not I’m not for solving this issue, it’s that we legally can’t,’ ” Fresco said. “The more (Trump officials) tease this out and make it true, the more likely they are to lose not just the legal issue, but the political issue.”
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Bottom line: The Trump Administration essentially is abusing the Federal Courts with largely frivolous litigation to score political points with its base. Seems like fraud, waste, and abuse, as well as unethical behavior on the part of DOJ attorneys.
“Our Gang”of Retired U.S. Immigration Judges continues to play a key role in defending Due Process and advancing the cause of justice in America! Here’s what one of our leaders, Judge Jeffrey Chase, had to say about the latest case decided in accordance with the arguments made in our Amicus Brief:
Hi all: I hope everyone had a wonderful Thanksgiving. It seems just before the holiday, the Ninth Circuit issued a decision in Rodriguez v. Marin (the remand of the Jennings case from the Supreme Court concerning indefinite detention). 20 of us were amici on a brief filed with the 9th Cir. drafted by a team at Wilmer Hale headed by Adriel Cepeda-Derieux.
The Supreme Court remanded for consideration of the constitutional question, which the district court, on remand, will consider in the first instance. The following language by the Circuit Court from its decision is heartening:
Like the Supreme Court, we do not vacate the permanent injunction pending the consideration of these vital constitutional issues. We have grave doubts that any statute that allows for arbitrary prolonged detention without any process is constitutional or that those who founded our democracy precisely to protect against the government’s arbitrary deprivation of liberty would have thought so. Arbitrary civil detention is not a feature of our American government.
Stay tuned! Attached is a link to the full decision, and a PDF copy of our amicus brief. Best, Jeff
Great language from the Ninth Circuit. Sadly, however, unconstitutional conduct and mockery of the rule of law, particularly in connection with immigration matters is a mainstay of this “Scofflaw Administration.” (I will note that the Obama Administration took the same “thumb your nose at our Constitution” position as Trump has in this long-running case.)
Trump and his DOJ lawyers like to advertise that they consider the Supremes “bought and paid for” and that they fully expect the GOP-appointed majority to “take a dive” every time the Administration wants to bend the law or operate in a “Constitution free” zone. As an indication of their total contempt for the judicial process and their belief that the “own” a majority of the Supremes, they have taken the almost unprecedented step in a number of key cases of trying to “short-circuit” the normal judicial process in the lower Federal Courts by going straight to the Supremes with the pleas for intervention.
But, in this case, they are likely to be out of luck. The case has already been to the Supremes and they quite pointedly “punted” it back to the Ninth Circuit and the U.S. District Court. As the Ninth Circuit notes in its remand opinion, the Fifth Amendment constitutional issue is straightforward and was fully briefed by the parties before the Supremes. But, it’s obvious that the Supremes wanted no part of it at that time.
So, it’s highly unlikely that the Supremes will intervene before the case works its way back up through the District Court and the Ninth Circuit, a process that will take months, if not years. Meanwhile, the injunction against indefinite detention without bond hearings remains in effect within the Ninth Circuit, which generates the largest number of immigration cases.
If Chief Justice Roberts really wants to demonstrate judicial independence and fair and impartial justice within the Third Branch this is his chance (along with Justices Gorsuch and Kavanaugh, who both would do well to put some distance between themselves and Trump) to show it in actions, not just rhetoric!
He squandered his opportunity in the “Travel Ban” case. If nothing else, he can now see that rather than respectfully considering his “warning shots,” Trump has specifically ignored them and treated the Chief Justice with the same utter contempt as he treats the spineless lackeys who surround his presidency.
But, the good thing about “judging,” at any level, is that you often get a chance to redeem yourself for past mistakes. Whether Roberts has the judicial integrity and leadership skills to pull it off, remains to be seen.
This also should be a “warning shot” to the DOJ that former AG Sessions’s vile plan (which he left unfinished when Trump unceremoniously axed him) to undo bond for asylum applicants who pass credible fear, on the basis of a clearly bogus and contrived reading of the Supreme’s Jennings v. Rodriguez remand, is likely to be found unconstitutional and therefore “DOA” in the Ninth Circuit.
The American Civil Liberties Union (ACLU) of Michigan applauds the decision of U.S. District Judge Mark A. Goldsmith to order the U.S. Immigration and Customs Enforcement (ICE) to release all Iraqis within 30 days.
“The law is clear that the Federal Government cannot indefinitely detain foreign nationals while it seeks to repatriate them, when there is no significant likelihood of repatriation in the reasonably foreseeable future,” wrote Judge Goldsmith in a 59-page opinion.
Judge Goldsmith also wrote that he will impose sanctions on the Government for “…failing to comply with court orders, submitting demonstrably false declarations of Government officials, and otherwise violating its litigation obligations—all of which impels this Court to impose sanctions.”
“Today’s decision is about accountability,” said ACLU senior staff attorney Miriam Aukerman. “ICE thought it could get away with lying to a federal judge. ICE thought it could get away with using indefinite detention to coerce Iraqis to accept deportation despite the dangers they face in Iraq. Today, Judge Goldsmith made it clear that ICE is not above the law.”
“It is appalling that ICE lied to the Court, and even more appalling that it did so in order to keep people wrongfully incarcerated,” said University of Michigan law professor Margo Schlanger, a cooperating attorney for the ACLU. “The Court made it absolutely clear that it will not tolerate such misconduct, and that ICE cannot simply lock people up and throw away the key.”
“We are delighted that families who have been separated for so long will finally be reunited,” said Kim Scott, an attorney at Miller Canfield who also represents the detainees. “As a result of today’s order, many of those who were unjustly detained will be home with their families for the holidays.”
Today’s ruling is the latest development in Hamama v. Adducci, a nationwide class action filed in June 2017 on behalf of hundreds of Iraqi nationals, who were arrested throughout the country without warning and threatened with immediate deportation. Many came to the U.S. as children and have lived and worked in the U.S. for decades. They now face persecution, torture, or even death in Iraq because of their religion, ethnicity, or the fact that they are Americanized. Approximately 120 Iraqis remain detained.
Thanks to Dan Kowalski over at LexisNexis Immigration Community for passing this along. And, congrats to the ACLU for brightening the Thanksgiving Day of not only these long-abused Iraqi detainees, but also of the substantial number of us who still believe in and cherish real American values — even in the “Dark Ages” of the Trump Administration!
Great news, and long, long overdue! Many of us have been calling for some time now for full accountability for Trump officials and their often ethically challenged lawyers who are out to abuse and destroy our precious legal system. There was a time in the not too distant past when U.S.Government lawyers were supposed to be held to a higher standard of promoting fairness, justice, and judicial efficiency. As I used to tell newly hired INS lawyers — “The Government wins when justice prevails — regardless of which party ‘wins’ the case.” That went out the door when Trump and his corrupt cronies like Jeff Sessions stepped in.
Federal Judges finally are losing patience with the types of blatant, “in your face” abuses by the Trump Administration that undoubtedly would have landed private parties and counsel in hot water long ago. Where’s the justice in a system that imprisons, deports, and otherwise abuses victims while letting the abusers walk free to strike again?
“[T]he Government has acted ignobly in this case, by failing to comply with court orders, submitting demonstrably false declarations of Government officials, and otherwise violating its litigation obligations—all of which impels this Court to impose sanctions.” — U.S. District Judge Mark A. Goldsmith
For their shockingly inappropriate and unethical conduct of and in Federal Court litigation, the Trump Administration officials involved in this and many similar abusive cases get “Courtside’s” Thanksgiving “Five Turkey Award.”
Attorney General Jeff Sessions resigned on Wednesday at the request of Donald Trump. He served a little less than two years as the head of the Department of Justice. During that time, Sessions used his immense power to make America a crueler, more brutal place. He was one of the most sadistic and unscrupulous attorneys general in American history.
At the Department of Justice, Sessions enforced the law in a manner that harmed racial minorities, immigrants, and LGBTQ people. He rolled backObama-era drug sentencing reforms in an effort to keep nonviolent offenders locked away for longer. He reversed a policy that limited the DOJ’s use of private prisons. He undermined consent decrees with law enforcement agencies that had a history of misconduct and killed a program that helped local agencies bring their policing in line with constitutional requirements. And he lobbied against bipartisan sentencing reform, falsely claiming that such legislation would benefit “a highly dangerous cohort of criminals.”
Meanwhile, Sessions mobilized the DOJ’s attorneys to torture immigrant minors in other ways. He fought in court to keep undocumented teenagers pregnant against their will, defending the Trump administration’s decision to block their access to abortion. His Justice Department made the astonishing claim that the federal government could decide that forced birth was in the “best interest” of children. It also revealed these minors’ pregnancies to family members who threatened to abuse them. And when the American Civil Liberties Union defeated this position in court, his DOJ launched a failed legal assault on individual ACLU lawyers for daring to defend their clients.
As he oversaw family separation, forced birth, and mass incarceration, Sessions found time to degrade LGBTQ Americans and their families. He issued a memo alleging that federal civil rights laws do not protect transgender employees, a position the Justice Department recently reiterated to the Supreme Court. He also argued that these civil rights laws do not protect gay people. His DOJ defended Trump’s ban on open transgender military service by claiming that trans people are disordered deviants. Under his leadership, the DOJ also asked the Supreme Court to rule that many businesses have a First Amendment right to turn away same-sex couples. (Sessions gave a speech to the anti-LGBTQ group that brought that case to SCOTUS, thanking them for their “important work” on behalf of religious liberty.)
The guiding principle of Sessions’ career is animus toward people who are unlike him. While serving in the Senate, he voted against the reauthorization of the Violence Against Women Act because it expressly protected LGBTQ women. He opposed immigration reform, including relief for young people brought to America by their parents as children. He voted against the repeal of Don’t Ask, Don’t Tell. He voted against a federal hate crime bill protecting gay people. Before that, as Alabama attorney general, he tried to prevent LGBTQ students from meeting at a public university. But as U.S. attorney general, he positioned himself as an impassioned defender of campus free speech.
While Sessions doesn’t identify as a white nationalist, his agenda as attorney general abetted the cause of white nationalism. His policies were designed to make the country more white by keeping out Hispanics and locking up blacks. His tenure will remain a permanent stain on the Department of Justice. Thousands of people were brutalized by his bigotry, and our country will not soon recover from the malice he unleashed.
His successor could be even worse.
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Can’t overstate the intentional damage that this immoral, intellectually dishonest, and bigoted man has done to millions of human lives and the moral and legal fabric of our country. “The Father of the New American Gulag,” America’s most notorious unpunished child abuser, and the destroyer of Due Process in our U.S. Immigration Courts are among a few of his many unsavory legacies!
The scary thing: Stern is right — “His successor could be even worse.” If so, the survival of our Constitution and our nation will be at risk!
The United States has the dubious honor of maintaining the world’s largest immigration detention system. Other countries may house more refugees and temporarily displaced persons, but we lock up the most people whose right to stay in the country is in dispute. Tens of thousands of people a day are held until they’re deported or granted permission to stay by an immigration judge (or at least released on bond or into a sponsor’s custody pending a further hearing).
It is a shameful aspect of U.S. immigration enforcement that the government denies liberty to so many people who have neither been accused nor convicted of a crime. To be sure, every nation has a right to control its borders and determine who gets to come in, for what reasons, and through what legal mechanism. We don’t believe that the U.S. should maintain open borders, but the government’s historic reliance on detention as a tool for dealing with people accused of arriving or staying here illegally is needlessly expensive, grossly inhumane and unjust to people exercising their legal right to seek asylum
While the current administration has embraced and expanded the practice, this is not a creation of President Trump. Such detentions date to the Immigration Act of 1882, and current detention policies are rooted in the 1952 Immigration and Naturalization Act. More recently, Cuban and Haitian migrants arriving by boat in the 1970s and ’80s were placed in detention centers, in part to deter their countrymen from similarly setting off to sea on rickety boats. Congress eventually mandated detention for migrants convicted of certain crimes that made them ineligible for admission.
ICE spends nearly $3 billion a year on immigration detention.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 greatly expanded the immigration detention system through contracts with local jails and state and privately run prisons. In fact, most of the 39,000 people incarcerated on any given day in the U.S. for immigration reasons — more than 350,000 pass through the system each year — are held in prison-like conditions in more than 200 locations around the country.
Some local governments have expanded their jails so they can house, for a daily fee, migrants that Immigration and Customs Enforcement wants detained. Meanwhile, the U.S. Department of Agriculture has granted $360 million in low-interest loans since 1996 to help rural communities build jails often larger than they need, so local officials can use detainees and the federal fee payments they bring to cover operating expenses, according to a recent report by the nonprofit Vera Institute of Justice.
ICE spends nearly $3 billion a year on immigration detention, according to the Government Accountability Office. About two-thirds of that goes to private prison corporations to operate detention centers and to local jails to reimburse them for housing detainees. Through those efforts the government has expanded an incarceration industry costing an exorbitant amount of tax dollars to deny freedom of movement of people who, in the vast majority of cases, pose no threat to us.
And notably, at least 77% of migrants facing deportation proceedings show up for their hearings, according to reports. Rates are highest among those who find legal help or receive support from community groups, which suggests there are better methods for handling thisthan detention.
There may, of course, be valid reasons for detaining some migrants, such as newly arrived asylum-seekers whose identities have yet to be verified, people facing imminent court-ordered deportation who the government has reason to fear might disappear, or violent felons who pose a realistic threat to public safety.
One of the largest contributors to no-shows is the government’s failure to keep current contact information for migrants during proceedings that can stretch out for years. One approach would be to match migrants to community service groups or sponsors to better keep track of the individuals and ensure they appear for court hearings; sadly, Trump killedan experimental Obama program that did just that.
This administration has chosen instead to double down on detention, and now it reportedly is considering reviving a version of the vile family separations. If family separation and detention worked as a deterrent, the president wouldn’t be tweeting so furiously these days about the current caravan of Central American migrants moving northward through Mexico. Detention-as-deterrence is not only an inhumane approach, it’s a failed one.
The government can neither detain nor deport its way out of this problem. It must find a better way. The fact that it has failed to do so for so long, regardless of which party controlled Congress or the White House, is an embarrassment.
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Doubling down on the worst, most ineffective, wasteful, and expensive policies. That’s the mantra of the Trump Administration on immigration. What if our Government spent the same amount of time, money, personnel, and effort on solving problems, rather than intentionally and cynically aggravating them?
Elsa, a Guatemalan living in Southern Mexico, knew something was wrong. Her husband began traveling a lot without explanation, and physically abusing her and their two kids. When she eventually figured out that he’d gone to work for a cartel, she left him. But in 2016, the gang came after her to collect on debts the ex-husband had skipped out on. She fled to other Mexican towns, but the cartel men tracked her down. Then she went back to Guatemala, but they found her there, too. Finally, in September, Elsa decided to gamble on Uncle Sam — but the foot of the Reynosa-Hidalgo bridge was as far as she would get.
The Trump administration has repeatedly insisted that asylum-seekers should follow the rules by turning themselves in at ports of entry. Elsa tried to do just that. As a legal Mexican resident, she even had proper documentation for herself and her two children. Still, a Mexican customs agent stopped her at the turnstile and told her she couldn’t pass. He yelled at her that they were abusing their Mexican status by seeking asylum in the United States, and he threatened to tear their papers to shreds. Scared, the family slunk back into narco-ravaged Reynosa, and into total uncertainty.
The story of Elsa, whose name the Observer has changed for her protection, was included in a petition filed last week with the Inter-American Commission on Human Rights, a 59-year-old organization based in Washington, D.C., that investigates abuses in the Americas and issues recommendations to offending nations. The petition, filed by immigration attorneys working in the Rio Grande Valley, describes a systematic conspiracy between U.S. and Mexican customs agents to prevent asylum-seekers from requesting protection. The attorneys are asking the commission to tell both nations to stop stonewalling the law-abiding migrants.
U.S. customs agents blocking entry at the international boundary line on the Gateway International Bridge, Brownsville, July 2. COURTESY/FILING WITH THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
Since June, the lawyers allege, Mexican customs officials along the Texas-Mexico border have been doing something virtually unprecedented: stopping asylum-seekers from entering the bridge, and if the migrants lack proper Mexican travel documents, the Mexican agents detain and even deport them. If an asylum-seeker makes it onto the bridge, U.S. customs officials call their Mexican counterparts to retrieve them; the Observerdocumented this phenomenon in a June story cited in the petition. In Nuevo Laredo, according to sworn affidavits from two Central American asylum-seekers, Mexican agents have demanded bribes of $500 per person to get onto the bridge. And in September, in Reynosa, they also started rejecting people, like Elsa, with Mexican papers.
“This petition highlights the reality of the U.S. working hand in glove with the Mexicans to completely shut down bridges, in violation of a number of human rights prohibitions,” said Jennifer Harbury, a longtime Rio Grande Valley attorney. Harbury has spent months documenting problems at the bridges and provided the majority of the information in the filing. According to Harbury and an affidavit from longtime Brownsville activist Mike Seifert, the international collaboration began after public outcry over long lines of asylum-seekers baking in the sun for weeks on the U.S. side of the bridges.
Harbury says in the filings that numerous Mexican agents at the Reynosa bridge have privately told her that the two governments are working together, and they’ve expressed frustration at doing the United States’ “dirty work.” Two other witnesses — a journalist and an activist — wrote similar affidavits. But U.S. customs agents have told Harbury that the Mexicans are acting alone, and a September letter she sent to Homeland Security Secretary Kirstjen Nielsen has gone unanswered. The United States began pressuring Mexico to stop migration at its southern border in 2014, and last month, Trump signaled he would redirect $20 million in foreign aid to beef up Mexico’s deportations. Neither U.S. nor Mexican immigration officials responded to Observer requests for comment.
The United States is unlikely, Harbury said, to heed the eventual request from the human rights commission. For one, the U.S. government rejects the authority of the commission’s enforcement arm, the Inter-American Court of Human Rights in San José, Costa Rica. (The same court recently ruled that many Latin American countries must recognize same-sex marriage.) But Harbury has higher hopes for Mexico, which is subject to the court and has an incoming leftist president in Andrés Manuel López Obrador. “I think the new president of Mexico is not going to want the commission saying they’re running dogs for Uncle Sam,” she said.
If Mexico stops its collaboration, then the United States would have to do its own “dirty work” of stopping asylum-seekers, and hold all liability for the potentially illegal actions. In California, a lawsuit was filed last year after border agents briefly turned away asylum-seekers all along the U.S.-Mexico border on the false premise that Trump’s inauguration had abolished asylum. That suit continues to play out.
In turning the bridges into hostile territory for asylum-seekers, the Trump administration has made a mockery of its own stated immigration goals.According to Attorney General Jeff Sessions, the point of the “zero tolerance” policy was to force families to use official ports of entry instead of crossing illegally. But U.S. customs agents started stonewalling asylum-seekers at the bridges. Now, with the threat of separation gone and the bridges still a dicey proposition, families have responded accordingly: More are crossing the river illegally to turn themselves in to Border Patrol. Immigration officials, in turn, are using this apparent spike to sound the alarm about another border crisis.
Meanwhile, many asylum-seekers from Central America, Africa and the Caribbean remain stranded, paralyzed by uncertainty in dangerous Mexican border towns where gangsters prey on refugees. In an affidavit, one would-be asylum-seeker wrote that she hears “shooting day and night” in Reynosa; another simply wrote, “many people die here.” As Harbury, the attorney, put it, “they’re like a snowball in Hell down there.”
Gus Bova reports on immigration, the U.S.-Mexico border and grassroots movements for the Observer. He formerly worked at a shelter for asylum-seekers and refugees. You can contact him at bova@texasobserver.org.
Jeff Sessions is a key part of this legal charade and scofflaw behavior. He disingenuously asserts that individuals should be using the legal system while doing everything in his power to make it impossible for individuals to present their asylum claims at ports of entry and have them fairly heard by fair and unbiased judges in Immigration Court.
The results of these shortsighted, cruel, illegal, and ultimately ineffective policies are to: 1) enrich smugglers, 2) make the trip more dangerous for asylum seekers, virtually insuring that more will die or be abused during the journey, and 3) to enlarge and promote the already robust “extralegal system” for immigrants and refugees. When orderly processing and the legal system for immigration are shut down or made less “user friendly,” the result is unlikely to be less overall immigration; just less immigration through legal channels and more “extralegal immigration” driven by Trump, Sessions, and their fellow White Nationalists.
Remember, we can diminish ourselves as a nation (and are doing so under Trump, Sessions, Nielsen, & Miller), but that won’t stop human migration!
Many thanks to Dan Kowalski over at LexisNexis Immigration Community for forwarding to me this timely and excellent reporting.
Judges in the nation’s federal criminal courts increasingly are balking at what they call unlawful efforts by U.S. immigration authorities to continue to detain people charged with entering the country illegally, even after they have been granted bail.
The rulings complicate the Trump administration’s “zero tolerance” crackdown on defendants who are charged with illegally crossing the border but whom judges have determined do not pose a flight or safety risk.
The decisions force prosecutors to make a choice — charge defendants with illegal entry or reentry and risk that a federal judge releases them pending trial, or keep suspects locked up in civil detention pending deportation proceedings and forgo criminal prosecution.
A recent ruling by a federal judge in Washington highlights the human and legal issues at stake, the case of a dishwasher from El Salvador who has a wife and two children in the District, where he returned after two deportations.
The surge in such criminal cases stems from an April 2017 announcement by U.S. Attorney General Jeff Sessions prioritizing Justice Department prosecutions of entry and reentry crimes. More than 60,000 people have faced such criminal charges since then, with twice as many new prosecutions this July, the most recent month for which data is available, compared with the same month in 2017, according to Syracuse University’s Transactional Records Access Clearinghouse, which monitors cases.
Individuals caught without documents on a first offense can be charged with a misdemeanor, but anyone caught in the United States after a prior deportation can be charged with a felony and face more than a year in prison. Immigration-related prosecutions are now the majority of all federal criminal cases, stretching far beyond states bordering Mexico.
Attorney General Jeff Sessions early this month in Ohio. (Adam Cairns/Columbus Dispatch/AP)
Advocates for immigrants say the recent court rulings may limit the use of the criminal charges to pressure defendants to abandon efforts to stay in the United States. The impact on overall removal efforts remains to be seen, but courts appear to be pushing back at an expansion of authority by prosecutors and Immigration and Customs Enforcement.
In the District, one rejection of the tougher tactics came from U.S. District Judge Royce C. Lamberth, a 1987 appointee of President Ronald Reagan. On Sept. 26. Lamberth said the government cannot have it both ways — asking federal courts to deny bail to defendants awaiting criminal trial and then, if a judge disagrees, holding them anyway in the immigration system.
The decision came in the case of Jaime Omar Vasquez-Benitez, 38, who court papers say was picking food up at a restaurant in July when D.C. police stopped him for suspected gang activity and turned him over to ICE. Federal public defenders say Vasquez-Benitez had quit a gang and fears for his life if he is deported.
He was charged in August with felony reentry despite deportation orders in 2008 and 2014.
A federal magistrate and district judge ruled Vasquez-Benitez should be released on bail, but U.S. marshals returned him to ICE custody. Defense attorneys moved to enforce the release order, and the case ended up in front of Lamberth after Vasquez-Benitez was indicted.
Lamberth ruled that a landmark 1966 U.S. bail statute specifically covers migrants and must “trump” more-general immigration laws, releasing Vasquez-Benitez into a high-intensity supervision program. He wrote that courts have long “upheld as sacrosanct” the principle that no one can act as prosecutor and judge at the same time, and that the Justice Department cannot ignore bail rulings any more than it can shrug off a defendant’s right to a speedy trial.
The judge said prosecutors can pursue both criminal charges and civil removal cases against defendants but must abide by a judge’s decision to grant bail. Or they can forgo charges and keep defendants locked up in civil detention while pursuing deportation.
People detained without valid immigration documents may well be worse off if uncharged, “languishing” indefinitely without speedy trial or access to bail in ICE detention camps far from families or counsel, the judge noted.
“Nevertheless, the government can do that” under immigration law, Lamberth wrote. “But so long as the government invokes the jurisdiction of a federal court, the government must consent to the Court’s custodial dominion over the criminal defendants before it.”
A decision on whether to appeal is pending. Bill Miller, a spokesman for the U.S. attorney’s office for the District, said the office was reviewing the ruling.
In a July 2017 Justice Department bulletin to 94 U.S. attorney offices nationwide, Oregon federal prosecutor Gregory R. Nyhus said that federal criminal statutes and civil immigration laws “are reconcilable” and that “courts should be encouraged to harmonize these statutes rather than focusing on [one] to the complete exclusion of the other.”
The government’s position — that it can hold Vasquez-Benitez strictly for deportation on a reinstated removal order, unrelated to his prosecution — has yet to be decided by an appeals court.
Rulings by trial judges in similar cases have varied.
Since July 2017, federal judges in Washington, Manhattan, Brooklyn, Detroit, Cleveland and Austin have rejected the government’s approach, drawing on a 2012 district court opinion in Oregon and a similar 2015 ruling by the U.S. Court of Appeals for the 9th Circuit that “the executive branch has a choice to make” between holding an undocumented person for deportation or prosecuting that person under criminal law and the Constitution.
Federal judges in Buffalo and Philadelphia have come down on the other side, saying that criminal and immigration laws can “coexist” on “parallel” tracks. Before the Trump administration, prosecutors would typically drop criminal charges to pursue civil removal if a previously deported defendant won bail.
Yihong “Julie” Mao, staff attorney with the National Immigration Project of the National Lawyers Guild, said the group was “heartened” by court rulings upholding undocumented immigrants’ right to bail and pretrial release based on family and community ties. She added: “This is fundamentally a separation-of-powers issue. The Department of Justice cannot be both judge and prosecutor.”
Mary Petras, an assistant federal public defender who is representing Vasquez-Benitez in the District, declined to comment.
In court filings, Assistant U.S. Attorney Kenneth Clair Kohl argued that the defendant’s case is not covered by the 2012 ruling, because ICE is holding him solely to deport him, not to prosecute him.
The Salvadoran man was first arrested in 1997, falsely claimed Mexican citizenship and was allowed to go to Mexico, according to court papers. He was deported in 2008 after serving a three-year sentence for felony obstruction of justice in the District and again in 2014, before he was caught for a fourth time this July.
Prosecutors would have prosecuted Vasquez-Benitez even in past years because of what they said in court papers was his “threatening, violent behavior” and felony criminal conviction. Vasquez-Benitez was convicted of obstruction of justice for telling a woman in 2005 she would “pay the consequences” if she called the police, and a 2014 arrest warrant in El Salvador said he has been charged with extortion, prosecutors said.
“There may come a time . . . [when] immigration proceedings have concluded . . . forcing the United States to choose between physical removal and continuation of this criminal case. That time, however, has not yet come,” wrote Kohl and Assistant U.S. Attorney Elizabeth Dewar in an unsuccessful effort to detain the man.
Petras told the court the man is a longtime restaurant worker, and his wife works part time as a hotel housekeeper. Both have family nearby, and the couple’s 3-year-old daughter and 9-year-old son attended a recent court hearing.
Petras argued the man posed no flight risk, because he is seeking to halt his deportation after gang members in El Salvador sent him a message warning that he had “signed his death warrant” by quitting the gang and removing gang tattoos.
The lawyer said the fact that her client has lived in the Washington area for years and returned shows that he “wants to be here and that he has no intent or incentive to flee.”
Read more:
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Compare what is happening in DC and some other jurisdictions with the “go along to get along” approach by some U.S. District Judges and U.S. Magistrate Judges along the border whom I have criticized in prior posts. The latter have allowed Sessions, Nielsen, and co. to turn their courts into “assembly line justice” — the kind that Session is implementing in his “wholly owned” U.S. Immigration Courts.
It’s pretty clear from the published reports that almost none of those being railroaded through that system actually understand the full immigration implications of their guilty pleas, nor do they understand how they can apply for asylum and what other rights they might have under the “civil immigration system.” Indeed, accepting guilty pleas without insuring that those entering the pleas fully understand the civil immigration situation and implications, including the likelihood of indefinite civil immigration detention and possible denial of a chance for a full hearing before an Immigration Judge, is arguably a violation of the U.S. Supreme Court’s decision in Padilla v. Kentucky.
I also have a “personal recollection” of Judge Royce Lamberth from decades ago when he was the Chief of the Civil Division at the U.S. Attorneys Office for DC and I was the Deputy General Counsel/Acting General Counsel at the “Legacy INS.” On several occasions I had to trek over from the “Central Office” in the “Chester Arthur Building” at 4th and Eye St., NW to the U.S. Courthouse complex on 5th Street to explain and justify the INS position to Royce.
He was known as a formidable individual, even in those days — a chief litigator who brooked no-nonsense from USG Agencies and who was concerned with maintaining the Government’s reputation for integrity and legal excellence before the U.S. Courts. That probably has much to do with how he got nominated and confirmed to be a U.S. District Judge and why he still brooks no-nonsense from the “Masters of Nonsense” in the Trump Administration.
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Transactional Records Access Clearinghouse
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FOR IMMEDIATE RELEASE
Greetings. The vast majority (58%) of individuals in Immigration and Customs Enforcement (ICE) custody as of June 30, 2018 had no criminal record. An even larger proportion – four out of five – either had no record, or had only committed a minor offense such as a traffic violation. Case-by-case records on each of these 44,435 individuals held in ICE custody were recently obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. These data provide a detailed snapshot of ICE custody practices.
Individuals were mainly from four countries. Forty-three percent were from the Central American countries of Guatemala, Honduras and El Salvador, while an additional 25 percent were Mexicans. At least 18 percent had resided continuously in the U.S. for ten years or more, and one out of four had been in the country for at least five years.
Many individuals had been held in ICE custody for a relatively short period of time. Forty-one percent had thus far stayed in ICE custody for 30 days or less. At the other extreme, almost 2,000 individuals had been detained for more than a year, and a few individuals had already been continuously detained according to ICE records for over ten years.
The data document the dominance of private for-profit prisons in the large-scale detention of ICE detainees. Overall, fully 71 percent of detainees were housed in facilities operated by private companies. The rest of the facilities were operated by government, including by counties, cities, and the federal government. Texas held 29 percent of all ICE detainees.
Access the brand new free web query tool to examine who ICE has in custody and where they are being held. Details on state, county, facility name, nationality, gender, length of time in the U.S., green card status, if convicted the most serious criminal offense, and much more are available at:
In addition, there are many additional TRAC free query tools – which track Border Patrol arrests, ICE detainers and removals, the Immigration Court’s backlog, the handling of juvenile cases and more. For an index to the full list of TRAC’s immigration tools go to:
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563
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Expensive, divisive, often counterproductive, and overall serving no discernible national interest: That’s the Trump immigration policy!
In a case that the ACLU says could affect thousands of immigrants, the Supreme Court on Wednesday considered when the government has the right to detain a class of immigrants without a bail hearing.
Under a 1996 law, the federal government is allowed to detain immigrants whose criminal conviction or involvement in terrorism-related activities would make them inadmissible or deportable. The law says the government “shall” take any of those immigrants into custody “when the alien is released” from criminal custody. The question before the justices is: What happens if the Department of Homeland Security doesn’t do so immediately?
The arguments on Wednesday focused on the technicalities of the 1996 law, rules of grammar, and timelines — not the sort of fiery rhetoric usually favored by President Donald Trump or Attorney General Jeff Sessions when talking about immigrants.
And while the case was granted to resolve the question of whether the statute still applied if DHS does not act immediately — whether there is any time restriction — the arguments shifted to a question of what limitation would be reasonable.
After a back-and-forth with Justice Sonia Sotomayor and a question from Justice Ruth Bader Ginsburg, Justice Neil Gorsuch spoke up early in the Wednesday arguments, asking, “[D]oes the government have any view about if ever the obligation [to take an immigrant into custody] lapses? Could it be 30 years? … Thirty years, and the government was aware of him the entire time and chose not to act. … Is there any limit on the government’s power?”
The government lawyer, Zachary Tripp from the Solicitor General’s Office, said the law created “a continuing obligation” that “does not lapse.”
Later, when Justice Stephen Breyer raised a similar question and Tripp began answering about when certain underlying crimes would be covered under the detention provision, Gorsuch interjected, said that back-and-forth was “quibbling,” and redirected Tripp to the larger question: “Justice Breyer’s question is my question, and I really wish you’d answer it.”
Breyer then stated his question more directly: “Is the government’s position that this paragraph, which says shall be arrested upon release, applies to a person who has been released 50 years before?”
Tripp, not giving in at all, said the government’s position is “absolutely that this applies regardless of the time” that’s passed.
. . . .
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Read the complete article at the link.
I had predicted the possibility that Justice Gorsuch’s past jurisprudence questioning the extent of and deference to Executive Power could make him an “honest broker” in some immigration cases.
I’d like to believe Justice Kavanaugh’s testimony that he will approach cases in a fair and impartial manner. But, neither his partisan outburst during his conformation nor his fawning performance during the unnecessary “formal swearing in” that became a Trump campaign rally were very encouraging from a fairness and impartiality standpoint.
Both his reputation and the country would be better served if he filled the “open minded conservative” role played by his predecessor and mentor Justice Kennedy rather than the “bought and paid for partisan vote” that all the Senators and Trump expect him to be.
Indeed, the one unifying theme of the Senate confirmation process was that all believed that he would perform as a totally predictable right-wing partisan vote. If he doesn’t live up to this expectation, the Dems will be (pleasantly) shocked and the GOP outraged at his “betrayal.” That’s why he would do well to at least occasionally listen carefully to the analysis of some of his more “liberal leaning” colleagues.
A federal district court judge has ruled Attorney General Jeff Sessions’ conditions on grant funding to force so-called sanctuary cities to cooperate with immigration enforcement efforts as unconstitutional
Judge William Orrick, of the U.S. District Court for the Northern District of California, sided with the state of California and city of San Francisco in their lawsuit challenging the requirements in granting their request for summary judgment Friday.
The conditions Sessions set in 2017 require sanctuary cities to give immigration officials access to their jails, notify U.S. Immigration and Customs Enforcement (ICE) officials of the planned release of a detainee, and follow a law that prohibits state and local governments from restricting how much information is shared with the Department of Homeland Security.
Orrick’s decision was in agreement with every court that has looked at these issues.
The judge said that the challenged conditions violate the separation of power and that the information-sharing law is unconstitutional.
Orrick said he is following the lead of the district court in a similar challenge brought by the city of Chicago and is issuing a nationwide injunction to block the Justice Department from enforcing its requirement and the law. But he said he is putting that stay on hold until the Ninth Circuit addresses the issue on appeal.
“Today’s ruling is a victory in our fight to protect the people of California,” California Attorney General Xavier Becerra said in a statement Friday afternoon.
“We will continue to stand up to the Trump administration’s attempts to force our law enforcement into changing its policies and practices in ways that that would make us less safe.”
Becerra’s office noted that the ruling marks the attorney general’s twenty-second legal victory against the Trump administration.
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When will he ever learn, when will he ever learn? And, how much of our tax money and Federal Court time will he waste with this counterproductive, semi-frivolous, and vindictive litigation.
Given Gonzo’s record of disregarding the law and mocking common sense, California might “top the century mark” in legal wins before the end of this Administration!
