Due Process – Page 298 – immigrationcourtside.com

NYT Editorial Blasts Trump Administration’s Anti-Immigrant Fear Mongering!

https://www.nytimes.com/2017/02/18/opinion/sunday/breaking-the-anti-immigrant-fever.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-right-region&region=opinion-c-col-right-region&WT.nav=opinion-c-col-right-region

In an Editorial that first appeared on Feb. 18, 2017, the NY Times wrote:

“Another DACA recipient, Daniela Vargas of Jackson, Miss., barricades herself in her home after agents detain her father and brother. A mother of four, Jeanette Vizguerra, seeks refuge, alone, in a Denver church basement. A group of Latino men leaving a church-run homeless shelter near Alexandria, Va., are surrounded by a dozen immigration agents who question them, scan their fingerprints and arrest at least two of them. [Emphasis Added.]

President Trump’s defenders say the arrest numbers from Immigration and Customs Enforcement are comparable to those under President Barack Obama, an energetic deporter-in-chief. That may be true, for the moment, but the context is vastly different. Mr. Trump’s campaign pledges, his flurry of immigration-related executive orders, including his ban on certain travelers from Muslim countries, have a common thread. They reflect his abandonment of discretion, of common sense, his rejection of sound law-enforcement priorities that stress public safety and respect for the Constitution.

They prioritize fear instead.

ICE and the Border Patrol under Mr. Obama were ordered to focus on arresting serious criminals and national-security risks. Mr. Trump has removed those restraints in the name of bolstering his “deportation force.” He wants to triple the number of ICE agents. He wants to revive federal agreements to deputize state and local police officers as immigration officers. He wants to increase the number of detention beds and spur the boom in private prisons.

This vision is the one Donald Trump began outlining at the start of his campaign, when he slandered an entire country, Mexico, as an exporter of rapists and drug criminals, and an entire faith, Islam, as a global nest of murderers. This is the currency of the Trump aides Stephen Bannon and Stephen Miller, who have brought the world of the alt-right, with its white nationalist strain, into the White House.

Where could the demonizing and dehumanizing of the foreign born lead but to a whiter America? You have heard the lies from Mr. Trump: that immigrants pose a threat, when they are a boon. That murders are up, when they are down. That refugees flow unimpeded into the country, when they are the most meticulously vetted people to cross our borders. That immigrants and refugees are terrorists, when they are the ones being terrorized.

For those who would resist the administration, there is much to do, and not a lot of time. Congress is not a check. Democrats there are outnumbered, speaking out but waging symbolic resistance for now. Republicans are mostly split between avoiding the subject and cheering on Mr. Trump.”

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

On a personal note, the “church shelter incident” involved the Rising Hope Mission Church in the Alexandria area of Fairfax, Co., VA. This church is devoted to meeting the needs of the most vulnerable in our community and is a mission outreach project funded by local United Methodist Churches, including the Beverley Hills Community United Methodist Church to which my wife and I belong. Among other things, Rising Hope serves as a hypothermia shelter, and actions like this by ICE serve to discourage individuals from seeking potentially life-saving assistance.

PWS

02/19/17

Michele Waslin, Immigration Impact: Trump Administration Ditches “Common Sense Priorities” In Adopting a Max Enforcement Program!

http://immigrationimpact.com/2017/02/15/trump-immigration-enforcement-policies/

“The Trump administration is quickly unraveling the last administration’s efforts to prioritize those for deportation who pose a serious threat over those who don’t. The new administration is ignoring priorities that were put into place by the Obama Administration as a way to manage limited law enforcement resources. The priorities recognized that there is a finite budget available for immigration enforcement, thus making prioritization important. The approach now being pursued by the Trump Administration casts a wide net and will result in an aggressive and unforgiving approach to immigration enforcement moving forward.

The most significant indications of this shift came through the “Enhancing Public Safety in the Interior of the U.S.” executive order, issued January 25, 2017, which prioritizes for deportation those noncitizens who:

Have been convicted of any criminal offense;
Have been charged with any criminal offense;
Have committed acts that constitute a chargeable criminal offense;
Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency;
Have abused any program related to the receipt of public benefits;
Are subject to a final order of removal but have not departed;
Otherwise pose a risk to public safety or national security.
In addition, unauthorized immigrants with no criminal history will likely fit under the third bullet because entering without inspection is a chargeable criminal offense (illegal entry or re-entry). And since the executive order states that many immigrants without immigration status or who overstayed their visas are a risk to public safety and national security, it appears the final bullet is a catch-all category for many others. In other words, the president has “prioritized” everyone, which means in reality he’s prioritized no one, making everyone a target for enforcement. Furthermore, legal immigrants—even green card holders–who are convicted of aggravated felonies or crimes of moral turpitude could also be subject to deportation.

Yet despite the more aggressive approach, it is still unclear from where the resources to identify, arrest, detain, and deport all of these individuals will come. For example, the U.S. is already over-capacity in detention, and immigration courts are seriously backlogged.

In the past, the government has stated that budget realities make it impossible to remove everyone who is in the country without authorization or who is otherwise deportable. This meant the agency had to set priorities and focus on a subset of deportable immigrants.

The Obama administration released a series of memos designed to prioritize those who pose a threat to public safety and national security and other categories of individuals.”

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

The Obama Administration made a total mess out of the already stressed U.S. Immigration Court dockets by unwisely and unnecessarily “prioritizing” cases of recently arrived unaccompanied children, women, and families fleeing violence and corruption in the Northern Triangle.

Nevertheless, thorough programs such as DACA, stateside processing, closing cases with possible relief pending before USCIS, and frequent wise use of prosecutorial discretion (“PD”) in “clean” cases with difficult legal issues but strong humanitarian factors, the Obama Administration was the first Administration I have seen make progress on developing a system that could eventually have helped “rationalize” Immigration Court dockets. If freed from politicized and unrealistic “priorities” from above, this eventually could have allowed the courts to focus on cases that really needed to be litigated, as is the case with almost all other high-volume court systems.

By contrast, the Trump Administration seems intent on “torquing” the Immigration Court system until it breaks apart. Even the Obama Administration used an overly broad concept of “criminal alien.” They included too many individuals who, while technically removable under the law, were doing useful things in the community and presented no real threat to the safety or security of the U.S.

Certainly the Trump Administration could have focused on those whose removals should be prioritized by “fine tuning” the Obama enforcement priorities. Instead, they have embarked on an expensive and ill-planned “mission impossible” to make everybody a priority (and, hence, nobody a priority) without any regard to the capacity or the best uses of court time and resources within our judicial system.

Additionally, the Trump Administration seems to be going out of its way to “disempower” those who are closest to the problem and are actually in the best position to determine which cases should be prosecuted: the local Offices of Chief Counsel of the DHS (the “immigration equivalent” of the U.S. Attorney). In Arlington, the Office of Chief Counsel was well-respected by all and had an excellent grasp of how to make the justice system work for all involved. Their main problem, like that of the Immigration Courts, was unrealistic priorities and directives imposed on them by political officials “up the chain.”

Sadly, the Trump Administration seems determined not to build on those things that have been successful in the past and instead to embark on a new “blunderbuss” approach to immigration enforcement that is almost guaranteed to get tied up with both legal challenges and practical impossibilities.

PWS

02/19/17

Professor Jill Family: “Disrupting Immigration Sovereignty”

http://yalejreg.com/nc/disrupting-immigration-sovereignty-by-jill-e-family/

From Yale Law’s “Notice & Comment:”

“This plenary power narrative stifles our ability to think rationally about immigration law policy and to build consensus. The narrative should not be that of a zero-sum game. The choice is not between absolute, unchecked authority and no government power over immigration. There is middle ground. The plenary power doctrine has been weakened over the last 128 years, and many immigrants are subject to constitutional protection today. In terms of facts, immigration is not inherently a threat. Immigration has done wonderful things for our country and immigrants have contributed in a variety of important ways.

We need a new immigration narrative that more accurately reflects law and fact. This narrative acknowledges that there is space for both government interests and individual rights in immigration law. To make progress, we need to disrupt the mindset that does not allow immigration and security to comfortably occupy the same space. It is possible to be secure and to welcome immigrants while promoting individual rights. This new narrative promotes the idea that the sovereignty of the United States incorporates our exceptional dedication to individual rights. It recognizes that allowing for powers not supervised by the Constitution is its own threat to our sovereignty.

The new narrative recognizes that both individual rights and government interests are important in immigration law. The government has an important role to play in fashioning immigration law policy for the country. Security is an important consideration. But so is protecting individual rights. Preserving the United States includes uplifting its most fundamental values, including the principle that absolute government power is not desirable. Allowing for individual rights to be considered in immigration law does not weaken sovereignty; it strengthens our sovereignty by helping to define who we are. It also sends even unsuccessful immigrants home with an experience to relay that reflects American values.”

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

The Administration neither satisfactorily justified nor specifically explained the need for the “Travel Ban Executive Order.” The Obama Administration thoroughly vetted refugees. I have no doubt that they also carefully vetted visa applicants from all countries in the Middle East, North Africa, or any country in the world where terrorist movements are known to flourish. That’s probably why there were no known deaths from terrorist attacks by refugees in the U.S. for the past eight years.

There is no actual emergency to explain the type of “extraordinary measures” the Administration wants to put in place. That’s why most Federal Courts have been skeptical of the Administration’s motives.

The controversial Executive Order is also unnecessary. To date, no court has questioned the President’s authority to reduce FY 2017 refugee admissions to 50,000 (although arguably changes in the number of refugee admissions, either increases or decreases, should have been accompanied by statutory advance “consultation” with Congress, and it certainly would be possible to question the wisdom, necessity, and humanity of such a reduction). According to some sources, those reduced refugee admission numbers will soon be exhausted, perhaps as early as March.

Consequently, unless the President takes action to raise the number again, the refugee admission program will effectively be “suspended” until the beginning of the next fiscal year, Oct. 1, 2017, without any further action on the Administration’s part.

Additionally, the Administration has never explained exactly what type of additional “vetting” they would add to that already in place. There is certainly nothing stopping Secretary of State Tillerson from improving visa screening in any way that he deems necessary, provided that the “improvements” are not just a ruse for discrimination. Additional questioning of refugees both abroad and at the border hardly requires an Executive Order. As long as the inquiry legitimately aims at discovering possible grounds of inadmissibility, it’s well within the existing authority of the Secretary of State and the Secretary of Homeland Security.

The use of questionable terms like “extreme vetting” and singling out particular Muslim majority countries for a complete ban is unnecessarily inflammatory. It antagonizes the Muslim world (without making us any safer), while sending a highly inappropriate message about the Muslim religion to the American public, thereby encouraging hate, discrimination, and separation.

While the majority of Americans appear wise enough to emphatically reject the Administration’s false message, there is a significant minority who have adopted or been convinced by the Administration’s largely “fact free” attack on refugees and the Muslim religion.

We as a nation could well be in for some difficult times over the next four years. To persevere and prosper, the vast majority of Americans will need to pull together toward common goals. The Administration could help achieve that end by ditching the unnecessary and inappropriately divisive rhetoric about refugees, Muslims, and immigrants.

PWS

02/19/17

BREAKING: WashPost: DHS Memos Detail Ramped Up Enforcement — Key Provisions: 15,000 More Agents, More Detention, Expanded Expedited Removal, Return To Mexico Pending Hearings, Target U.S. Parents Of Smuggled Kids, More Use Of Locals To Enforce Immigration Laws, PD Restricted, More IJ Televideo To Border, More Scrutiny of Credible Fear — Border Patrol Union Happy — DACA Remains (For Now) — David Nakamura Reports — Read Memos Here!

https://www.washingtonpost.com/politics/memos-signed-by-dhs-secretary-describe-sweeping-new-guidelines-for-deporting-illegal-immigrants/2017/02/18/7538c072-f62c-11e6-8d72-263470bf0401_story.html?hpid=hp_rhp-top-table-main_dhs815pm%3Ahomepage%2Fstory&utm_term=.bcdb7a1851e0

“Homeland Security Secretary John F. Kelly has signed sweeping new guidelines that empower federal authorities to more aggressively detain and deport illegal immigrants inside the United States and at the border.

In a pair of memos, Kelly offered more detail on plans for the agency to hire thousands of additional enforcement agents, expand the pool of immigrants who are prioritized for removal, speed up deportation hearings and enlist local law enforcement to help make arrests.

The new directives would supersede nearly all of those issued under previous administrations, Kelly said, including measures from President Barack Obama aimed at focusing deportations exclusively on hardened criminals and those with terrorist ties.

. . . .

The memos don’t overturn one important directive from the Obama administration: a program called Deferred Action for Childhood Arrivals that has provided work permits to more than 750,000 immigrants who came to the country illegally as children.”

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

Here are the two memos signed by Secretary Kelly (thanks to Professor Alberto Benitez):

http://www.mcclatchydc.com/news/politics-government/white-house/article133607784.ece/BINARY/DHS%20enforcement%20of%20immigration%20laws

http://www.mcclatchydc.com/news/politics-government/white-house/article133607789.ece/BINARY/DHS implementation border security policies

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

Looks like everything is a “priority,” almost everyone will be detained, and DHS Assistant Chief Counsel won’t be offering PD or other negotiated “deals” except in extraordinary situations.

It’s not even clear from this whether the ACCs will still have authority to “waive appeal” in cases where the DHS loses. If not, that means that the BIA could also be overwhelmed with marginal DHS appeals.

While one of the memos notes the 534,000 Immigration Court backlog, there is a total disconnect in putting all these new priorities into Immigration Court without any plan for dealing with the 534,000 already there. (Most folks already here arrived at least two years ago, so even the greater use of expedited removal will leave hundreds of thousands of potential new filings for the Immigration Courts.)

When everything is a priority, nothing is a priority! Looks to me like another ill-conceived, “built to fail,” scheme. Over time, these plans are likely to be taken apart by the Article III Courts, bit by bit, piece by piece, until we have total chaos in the immigration enforcement system. Haste makes waste.

PWS

02/18/17

Opinion: Cato’s Jonathan Blanks On How Trump’s Immigration Policies Endanger Safety & Why “Sanctuary Cities” Are Right To Resist

https://www.washingtonpost.com/opinions/how-enforcing-trumps-immigration-actions-could-hurt-public-safety/2017/02/17/3644da9c-f553-11e6-b9c9-e83fce42fb61_story.html

Blanks writes in the Washington Post:

“Last week, federal immigration officials seized an unauthorized immigrant at an El Paso courthouse where she had been seeking a protective order against an alleged domestic abuser. The judge who oversees the court that issued the protective order expressed dismay that such a seizure took place when the person was seeking protection from violence, and perhaps acting on a tip provided by the alleged abuser himself.

President Trump has said his proposed actions to stiffen immigration enforcement are in the interests of public safety, but seizures such as the one in El Paso and the proposed revitalization of the 287(g) program that deputizes local law enforcement to enforce federal immigration law make the public less safe and interfere with local policing priorities.

Certainly, immigration enforcement falls within the federal government’s prerogative, regardless of one’s opinion on current immigration laws. However, that does not make every single enforcement action wise or justifiable. Moreover, the respect for federalism — the recognition of state and local governments’ priorities over the whims of Washington — has long been a mantra of small-government Republicans. Yet, it is hard to think of a larger and more dangerous federal intrusion into local affairs than undermining local law enforcement.

. . . .

The federal government has the authority to enforce its immigration laws, but it should do so with discretion and in a way that aligns with the public trust. Likewise, local law enforcement should be free to protect the communities they serve in line with each community’s best interests. Taking law enforcement actions against people seeking protection is dangerous and irresponsible. Threatening those most vulnerable to crime is anathema to improving public safety.”

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

PWS

02/18/17

Like It Or Not, Trio Of Cases Now Before The Supremes Will Affect Trump Administration’s Enforcement Program — Issues Involve Long-Term Detention & Liability Of Government Officials

http://www.huffingtonpost.com/entry/scotus-trump-immigrants_us_58a70e9be4b037d17d271444?tdoe77ccqm362bj4i

Lawrence Hurley reports in HuffPost:

“The U.S. Supreme Court will decide three cases in coming months that could help or hinder President Donald Trump’s efforts to ramp up border security and accelerate deportations of those in the country illegally.

The three cases, which reached the court before Democratic President Barack Obama left office, all deal broadly with the degree to which non-citizens can assert rights under the U.S. Constitution. They come at a time when the court is one justice short and divided along ideological lines, with four conservatives and four liberals.

The justices will issue rulings before the end of June against the backdrop of high-profile litigation challenging the lawfulness of Trump’s controversial travel ban on people traveling from seven predominantly Muslim countries.

The most pertinent of the three cases in terms of Republican Trump administration priorities involves whether immigrants in custody for deportation proceedings have the right to a hearing to request their release when their cases are not promptly adjudicated.

The long-running class action litigation, brought by the American Civil Liberties Union (ACLU) on behalf of thousands of immigrants detained for more than six months, includes both immigrants apprehended at the border when seeking illegal entry into the United States and legal permanent residents in deportation proceedings because they were convicted of crimes. The case also could affect long-term U.S. residents who entered the country illegally and have subsequently been detained.

The Trump administration has said it wants to end the release of immigrants facing deportation and speed up the process for ejecting them from the country. A decision in the case requiring additional court hearings could have very direct implications for the administration’s plans, said ACLU lawyer Ahilan Arulananthan, especially since immigration courts currently have a backlog of more than 500,000cases.

The ACLU estimates that up to 8,000 immigrants nationwide at any given time have been held for at least six months. A U.S. Immigration and Customs Enforcement official was unable to immediately confirm data on length of detention but said that in fiscal year 2016, the average daily count of detainees was just under 35,000.

“If Trump wants to put more people in deportation but does not increase the number of immigration judges, then people are going to have to wait longer and longer to get a hearing,” said Stephen Yale-Loehr, an immigration law professor at Cornell Law School.”

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

I would think that nominating a Solicitor General to be in charge of all Federal litigation, particularly at the Supreme Court level, would be a very high priority for President Trump.

PWS

02-17-17

Keeping It In Perspective: Trump Administration’s Arrest Of 680 Undocumented Immigrants In One Week Was About “Business As Usual” During Obama’s 1st Year

https://www.nytimes.com/interactive/2017/02/16/us/politics/immigration-arrests-trump.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=second-column-region&region=top-news&WT.nav=top-news

JUGAL K. PATEL, ALICIA PARLAPIANO, HAEYOUN PARK and SARAH ALMUKHTAR report in the NYT:

Last week, United States Immigration and Customs Enforcement officials arrested more than 680 people in at least 12 states, shown below, stoking fears that the Trump administration is increasing the arrests and deportations of undocumented immigrants.

But a comparison of last week’s arrests and similar ones during the first four years of the Obama presidency show that the recent level of enforcement activity is not unprecedented.

It is unclear, however, if the numbers are an actual increase in enforcement, because information on operations in only 12 states was disclosed.”

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

Read the full article with analysis, charts, and maps.

PWS

02/16/17

HuffPost Reports ICE Arrest Of DV Victim At El Paso Courthouse

http://www.huffingtonpost.com/entry/el-paso-ice-detains-domestic-violence-victim_us_58a51f68e4b037d17d24cb2d

Elise Foley and Roque Planas report:

“AUSTIN, Texas ― Immigration and Customs Enforcement detained a domestic violence victim at an El Paso County Courthouse last week shortly after the undocumented immigrant obtained a protective order to shield her from the man accused of abusing her, according to a state news report.

The arrest, first reported by The El Paso Times on Wednesday, would mark a shift in ICE practice under President Donald Trump and has legal experts worried that it will dissuade women from seeking the protection of the courts when they face abuse.

Barbara Hines, who headed the immigration clinic at the University of Texas at Austin and still serves as a professor, said victims of domestic violence have options under the law to normalize their immigration status. The U Visa, for example, protects victims of violence from deportation if they agree to cooperate with law enforcement.

“That’s outrageous. That’s all I can say,” Hines told The Huffington Post, referring to the arrest. “This is very unusual. I would say it’s a terrible precedent and it will discourage survivors of abuse or people being abused from seeking the protection they’re entitled to under our laws…. This is going to make immigrant women fearful of going to the authorities, and it will result in more domestic violence because women will be too afraid to seek protection.”

ICE did not immediately respond to a request for comment.”

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

The fear that police cooperation with ICE will dissuade the migrant community from reporting crime and cooperating with local police in solving crimes is one of the factors driving the so-called “Sanctuary Cities” movement.

PWS

02/16/17

Georgetown Law Journal Of National Security Law & Policy Announces Annual Symposium: The Border and Beyond: The National Security Implications Of Migration Refugees And Asylum Under U.S. And International Law, Feb. 28, 2017 — Elisa Massimino Of Human Rights First To Be Keynote Speaker — See Agenda And Register (Free) Here!

Share this:
Please Save the Date for the Journal of National Security Law & Policy annual symposium!
This year’s symposium is The Border and Beyond: The National Security Implications of Migration, Refugees, and Asylum under U.S. and International Law.
Please join us on Tuesday, February 28, 2017 at Georgetown Law.
In addition to the following three panels, the symposium will also feature a lunchtime keynote speech by Elisa Massimino, President and CEO of Human Rights First, one of the nation’s preeminent human rights advocacy organizations.
Panel 1: Immigration, Homeland Security, and the Constitution (9:05 – 10:30 AM)
Panelists will engage in debate on various constitutional issues, such as the separation of powers and the protection of civil liberties, in the context of recent events in the U.S. in which both migration and national security have been implicated.
Panelists:
Jen Daskal, Professor of Criminal, National Security, and Constitutional Law at American University Washington College of Law; former Assistant Attorney General for National Security at the Department of Justice
Lucas Guttentag, Professor of the Practice of Law at Stanford Law School; Founder and former National Director of the ACLU Immigrants’ Rights Project
Marty Lederman, Professor of Constitutional Law at Georgetown University Law Center; former Deputy Assistant Attorney General at the Department of Justice’s Office Legal Counsel
Moderator: William Banks, Professor of Law and Founder of Institute for National Security and Counterterrorism, Syracuse University College of Law

Panel 2: The U.S. Refugee and Asylum Legal Regime (10:35 AM – 12:00 PM)
Panelists will explore the current status of U.S. asylum and refugee laws and how the screening processes factor into national concerns. The panel will also discuss the Trump administration’s recent executive orders relating to border security and refugee policy in the U.S.
Panelists:
Mark Hetfield, President and CEO of HIAS, the oldest international migration and refugee resettlement agency in the U.S.
Anne Richard, Assistant Secretary of State for Population, Refugees, and Migration; Former Vice President of Government Relations and Advocacy for the International Rescue Committee
Shibley Telhami, the Anwar Sadat Professor for Peace and Development at University of Maryland-College Park
Moderator: Jason Dzubow, Partner at Dzubow & Pilcher, PLLC; Adjunct Professor of Asylum Law at George Washington University Law School
Luncheon and Keynote Address by Elisa Massamino (12:30 pm – 1:05 pm)
Panel 3: Migration and Security Threats Abroad (1:15 PM – 2:40 PM)
Panelists will discuss the security implications of the refugee crisis in Europe and the potential legal obligations that the U.S. might have under international law to assist its allies in handling the situation.
Panelists:
Bec Hamilton, Professor of National Security, International, and Criminal Law at American University Washington College of Law
Karin Johnston, Professor of International Politics at the American University School of International Service
A. Trevor Thrall, Senior Fellow for the Cato Institute’s Defense and Foreign Policy Department; Associate Professor at George Mason University’s Schar School of Policy and Government
Mark Iozzi, Democratic Counsel at the House Foreign Affairs Committee
Moderator: David Stewart, Professor of Law, Georgetown University Law Center

A reception will follow the event.

Please RSVP for the symposium here.

https://docs.google.com/forms/d/e/1FAIpQLSclFTIhYVbMzFNC5BHRIuTWrGgBNte_dVzmzcSe4vL5i59i1w/viewform

Thank you!
– The 2017 JNSLP Symposium Team

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

Looks like a great program! And, with free lunch (just for you, Judge Larry Burman) and a free reception thrown in, what’s not to like about that!

Some of you might have seen Elisa Massimino on TV as she and Ashton Kutcher testified on human trafficking before a Senate Committee on Wednesday. These are all-star panels with my good friends Professor David Stewart and Adjunct Professor, blogger, and immigration practitioner Jason “The Asylumist” Dzubow serving as panel moderators.

See you there!

PWS

02/16/17

Trump Administration Quietly Drops 9th Circuit Fight In Washington v. Trump — Will Rescind 1st Travel Ban EO And Issue Another!

http://www.vox.com/2017/2/16/14640676/trump-muslim-ban-new-replace

Dara Lind reports on VOX:

“The first thing President Donald Trump repeals and replaces is going to be his own executive order on immigration.

Both Trump, in a press conference, and the Department of Justice, in a court filing, said Thursday that the president is abandoning the order he signed January 27, banning all visa holders from seven majority-Muslim countries and nearly all refugees from entering the United States.

The ban was only in effect for a week before being put on hold by a federal court — and judges around the country have been less than sympathetic to the administration’s arguments for its constitutionality. President Trump continues to believe the judges’ ruling was “a bad decision.” But he’s buckling to it anyway.”

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

The Department of Justice asked the full 9th Circuit to hold the case (Washington v. Trump) in abeyance until a new Executive Order is issued. Presumably, the Department will then argue that the new EO “moots” the case and that the full court therefore should vacate the decision of the 9th Circuit panel temporarily restraining the first Executive Order. In other words, there would no longer be a “case or controversy” once the first EO is rescinded.

There may well be challenges to the new Executive Order. We will just have to wait and see what it looks like. Most observers expect that the new order will be limited to individuals who have never entered the United States. It might therefore be more difficult to formulate a successful constitutional challenge.

However a separate suite before Judge Brinkema in the EDVA, Aziz v. Trump, analyzed in earlier blogs, had a “religious discrimination” finding that might have a better chance of applying to those whose relatives or businesses are affected by a new EO.

The full article at the link contains a further link to the relevant section of the Department’s latest filing in the 9th Circuit.

Late Breaking Update:

Reuters reports that the 9th Circuit has agreed to hold action on Washington v. Trump pending “further developments.”

http://www.huffingtonpost.com/entry/appeals-court-suspends-travel-ban-proceedings_us_58a655e0e4b07602ad532f2a?68v1jx9ghrb43g14i&

PWS

02/16/17

WashPost: Professors (And Former USG Senior Execs) Martin & Legomsky Analyze Judge Brinkema’s Travel Ban Decision — Religious Discrimination Finding Might Be Key To Opponents’ Future Success (Or Not)!

https://www.washingtonpost.com/local/public-safety/why-virginia-matters-in-the-travel-ban-fight/2017/02/14/27cfff3c-f2ec-11e6-b9c9-e83fce42fb61_story.html?utm_term=.880047c24800

Rachel Weiner reports:

“’Judge Brinkema spells out a lot more; she really fleshes out one of the possible claims, and that’s the religious discrimination claim,’” said David Martin, a professor at the University of Virginia who, for many years, helped shape immigration policy inside the government. ‘That may well prove to be the strongest or more fruitful line of inquiry for the plaintiffs in these various cases, particularly if they’re trying to reach past green-card holders or people on immigrant visas. It’s hard to get there without a religious discrimination case of some kind.’”

. . . .

“’It was a very well-reasoned, thoughtful decision. Frankly, I think, a more careful decision than the 9th Circuit decision,’ said Steve Legomsky, former chief counsel for immigration services in the Department of Homeland Security. In her opinion, Legomsky said, Brinkema ‘pretty methodically went through the various statements by Trump. . . . They put great weight on the opinions of the former national security officials to show the absence of counterevidence from the Trump administration. For both of those reasons, I think the Virginia opinion is very important.’
Brinkema also brings to the case extensive national security experience. She presided over the trial of Sept. 11, 2001, conspirator Zacarias Moussaoui, among other high-profile cases.

‘It was a thoughtful opinion, it’s well considered, it wasn’t hastily done like some of these other decisions had to be in light of circumstances,’ said Justin Cox of the National Immigration Law Center. His group is involved in several lawsuits against the ban, including one filed in Maryland last week focused on refugees. That case is specifically focused on religious discrimination.

‘Legally [the Virginia ruling] is actually quite significant because it’s the first court to squarely hold that the executive order violates the establishment clause,’ Cox said.

The danger for opponents of the ban is that, should the Justice Department appeal Brinkema’s decision, they will face the more conservative 4th Circuit rather than the left-leaning 9th Circuit.

‘It would be a close call,’ Legomsky said. ‘There is such strong evidence of religious discrimination — it’s really hard to know.’”

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

As noted in this article, in addition to being leading academic “immigration gurus,” both Professor Martin and Professor Legomsky have lived in the “real world” of shaping Government policies and managing programs that actually implement those policies.

As they point out, while many of the objections to the “travel ban” could be eliminated by applying it just prospectively to those outside the U.S. who have not previously been admitted, that wouldn’t necessarily overcome Judge Brinkema’s finding that the “national security” reasons asserted by the Government in her court were merely “pretext” for unconstitutional religious discrimination.

While Justin Cox might be correct that the Fourth Circuit is not as liberal as the Ninth Circuit, that distinction probably would apply to every other Circuit Court of Appeals. Having spent 13 years as an Immigration Judge in Arlington, where my decisions ultimately could be reviewed by the Fourth Circuit and Fourth Circuit law applied, I found their immigration rulings very balanced. Indeed, they sometimes cited Ninth Circuit precedent and even were ahead of the Ninth in recognizing some migrants’ rights.

While the Fourth Circuit affirmed the overwhelming majority of BIA and Immigration Judge decisions in unpublished, non-precedential decisions, when they spoke in published precedents they always had important guidance to offer. The Fourth Circuit also was not afraid to stand up to the Government and “call them out” when necessary in the field of immigration.

And, at least in the Arlington Immigration Court, we trial judges paid close attention. I think that the Fourth Circuit’s very fair and well-reasoned asylum jurisprudence, in some significant ways more faithful to the asylum law and regulations than rulings of the BIA, was one reason why asylum applicants were often successful in Arlington. That’s also why many asylum cases in Arlington could be resolved by the parties in “short hearings” based on extensive written documentation and application of the Fourth Circuit law.

There is also a wonderful pastel portrait of Judge Brinkema in her court with the full article at the link. Check it out!

PWS

02/16/17

ImmigrationProf: Professor Lauren Gilbert Reports On Effect Of EO On Detention Center

http://lawprofessors.typepad.com/immigration/2017/02/witnessing-the-impact-of-the-border-security-eo-on-one-immigration-detention-facility-by-lauren-gilb.html

“With all attention on the Muslim ban and building The Wall, the Trump Administration seems to have diverted our attention from their other plans to roll out the January 25, 2017 Executive Order on Border Security. Although that Executive Order includes a lot of language regarding The Wall, there’s also other troubling language that the Administration already appears to be implementing. Two of my students and I spent all of Friday at a detention facility with students and a faculty member from another area law school. We were amazed by the number and diversity of folks in detention. Our students did know-your-rights presentations to different groups, intakes, and talked with as many folks as we could. I would summarize my observations about what we saw as follows. While the Executive Order on border security appears to authorize immediate construction of the wall, it also does the following:

Calls for the expansion of expedited removal to anyone not in U.S. for the last two years
Build and expand use of detention facilities and contracts with local law enforcement Detain Central American asylum seekers with pending claims, even those who’ve been released on parole and passed credible fear
Dramatically limit use of parole to humanitarian situations
Use ICE/ERO and alternatives to detention to round up parolees
Use local law enforcement to arrest and detain immigrants and asylum seekers
This implementation is bound to affect many of the women and children we served at Karnes, Texas last December, both those women who passed their CFIs as well as the women who were released on their own recognizance. It also affects many other immigrants in our community without secure immigration status.”

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

PWS

02/15/17

DHS Officers Cheer President Trump’s Enforcement Initiatives!

http://www.huffingtonpost.com/entry/trump-immigration-border-deportations_us_58a49e7be4b0ab2d2b1b6ed3?imubfp6pecuxwp14i&

Elise Foley reports on HuffPost:

“WASHINGTON ― When Donald Trump won the presidency in November, Shawn Moran’s border patrol colleagues high-fived and hugged each other.

“There was a real sense that we were going to be able to do our jobs again,” said Moran, vice president at National Border Patrol Council. “That turned out to be true.”

Border Patrol and Immigrations and Customs Enforcement agents complained for years that then-President Barack Obama constrained their ability to fulfill their mission. Trump campaigned on a promise that he would unleash them — and vowed to make large-scale deportation of undocumented immigrants a priority. This won Trump the endorsement of Moran’s group, which represents Border Patrol agents, and the National ICE Council, a union that represents ICE officers.

Now, Moran said, the president is keeping his promise. Immigrant rights advocates, who were horrified at a multi-state deportation effort that swept up more than 680 people last week, agreed.”

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

PWS

02/15/17

What Are The Odds Of The US Immigration Courts’ Surviving The Next Four Years?

What Are The Odds Of The U.S. Immigration Courts’ Survival?

by Paul Wickham Schmidt

Despite the campaign promises to make things great for the American working person, the Trump Administration so far has benefitted comedians, lawyers, reporters, and not many others. But there is another group out there reaping the benefits — oddsmakers. For example, Trump himself is 11-10 on finishing his term, and Press Secretary Sean “Spicey” Spicer is 4-7 to still be in office come New Year’s Day 2018.

So, what are the odds that the U.S. Immigration Courts will survive the next four years. Not very good, I’m afraid.

Already pushed to the brink of disaster, the Immigration Courts are likely to be totally overwhelmed by the the Trump Administration’s mindless “enforcement to the max” program which will potentially unleash a tidal waive of ill-advised new enforcement actions, detained hearings, bond hearings, credible fear reviews, and demands to move Immigration Judges to newly established detention centers along the Southern Border where due process is likely to take a back seat to expediency.

While Trump’s Executive Order promised at least another 15,000 DHS immigration enforcement officers, there was no such commitment to provide comparable staffing increases to the U.S. Immigration Courts. Indeed, we don’t even know at this point whether the Immigration Courts will be exempted from the hiring freeze.

At the same time, DHS Assistant Chief Counsel are likely to be stripped of their authority to offer prosecutorial discretion (“PD”), stipulate to grants of relief in well-documented cases, close cases for USCIS processing, and waive appeals.

Moreover, according to recent articles from the Wall Street Journal posted over on LexisNexis, individual respondents are likely to reciprocate by demanding their rights to full hearings, declining offers of “voluntary departure” without hearing, and appealing, rather than waiving appeal of, most orders of removal. Additionally, the Mexican government could start “slow walking” requests for documentation necessary to effect orders of removal.

Waiting in the wings, as I have mentioned in previous posts, are efforts to eliminate the so-called “Chevron doctrine” giving deference to certain BIA decisions, and constitutional challenges that could bring down the entire Federal Administrative Judiciary “house of cards.”

The sensible way of heading off disaster would be to establish an independent Article I Court outside the Executive Branch and then staff it to do its job. Sadly, however, sensibility so far has played little role in the Trump Administration. Solving the problem (or not) is likely to fall to the Article III Courts.

So, right now, I’m giving the U.S. Immigration Courts about 2-3 odds of making it through 2020. That’s a little better chance than “Spicey,” but worse than Trump himself.

To read the WSJ articles on the “clogging the courts” strategy, take this link over to LexisNexis:

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/archive/2017/02/13/will-strong-defensive-tactics-jam-immigration-jails-clog-immigration-courts-wsj.aspx?Redirected=true

PWS

02/14/17

Reuters Exclusive Report — Dreamer Arrested By ICE In Seattle — Mistake Or New Policy?

http://www.reuters.com/article/us-usa-trump-immigration-arrest-exclusiv-idUSKBN15T307

Daniel Levine and Kristina Cooke of Reuters San Francisco break this exclusive story:

“U.S. authorities have arrested an immigrant from Mexico who was brought to the United States illegally as a child and later given a work permit during the Obama administration in what could be the first detention of its kind under President Donald Trump.

Daniel Ramirez Medina, a 23-year-old with no criminal record, was taken into custody last week at his father’s home in Seattle by U.S. Immigration and Customs Enforcement officers. The officers arrived at the home to arrest the man’s father, though court documents did no make clear the reason the father was taken into custody.

Ramirez, now in custody in Tacoma, Washington, was granted temporary permission to live and work legally in the United States under a program called the Deferred Action for Childhood Arrivals, or DACA, established in 2012 by Democratic President Obama, according to a court filing.”

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

As far as I know, the Administration has not made a final decision on whether or not to revoke, retain, or modify the Obama Administration’s DACA program. But, given the sloppiness with which this Administration has proceeded on immigration matters, who knows?

In any event, great reporting by Daniel and Kristina, and I appreciate their forwarding this to me.

PWS

02/14/17

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts:

Related posts: