Due Process – Page 298 – immigrationcourtside.com

“Full Frontal’s” Samantha Bee Discovers SHOCKING Truth: Obama & Trump Share Similar Views On Immigration Enforcement! — Also Introducing Late-Nite TV’s Newest Superstar, Retired USIJ Bruce Einhorn!

Check out this video link from last night’s Full Frontal With Samantha Bee” on TBS:

http://www.vox.com/culture/2017/1/12/14250148/samantha-bee-obama-trump-deportation

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Yup, that’s right Sam, for years the Obama Administration has been going after foreign nationals with criminal records, even though, as illustrated by the young lady you profiled, some of them are nonviolent, have paid for their crimes, have rehabilitated themselves, and are productive, law-abiding, tax-paying members of their communities — many with U.S. citizen families — by the time ICE Enforcement shows up.

Perhaps realizing that, contrary to campaign rhetoric, President Obama has already implemented a “get tough” immigration enforcement program, Trump spokesman Kris Kobach promises to expand (by Executive Fiat, mind you) the definition of “criminal” to include foreign nationals who have merely been charged or arrested, not necessarily convicted of any crime. Hey, what’s the presumption of innocence anyway? To paraphrase another great American thinker, “If they were’t criminals, they wouldn’t be in court.” Perhaps the next logical step will be anyone who has ever thought of violating the law or watched a TV crime show!

I think it is safe to predict that many of those who would fall within Kobach’s ever-expanding concept of “criminal” will eventually prove not to be removable under the laws of the United States. Even now, that’s the case in a remarkable number of prosecutions brought by the Obama Administration’s ICE (“Immigration and Customs Enforcement”).

That’s why we need a strong, independent, impartial, expert United States Immigration Court (including the “Appellate Division,” the “BIA”) to insure that fairness and constitutional Due Process are always at the forefront and that any Administration’s enforcement initiatives comply with the law. And, any Administration would find that final orders of removal achieved through such a due-process oriented court system would have great credibility (sadly, not necessarily the case now and particularly in the recent past) and would stand up to judicial review by the Federal Courts of Appeals.

Finally, my friend and former colleague Judge Einhorn has proved what I’m finding out — there is lot’s of “life” out here after retiring from the Immigration Bench, and it’s pretty much “all good.” Will SNL be the next stop for Judge Einhorn? Stay tuned!

Go Pack Go!!!!!🏈🏈🏈

PWS

01/15/17

Send In The Marines — Gen. Kelly Looks Like He Has The “Right Stuff” For DHS!

http://immigrationimpact.com/2017/01/11/john-kelly-said-immigration-policy-confirmation-hearing-dhs-secretary/

Maurice Belanger at Immigration Impact reports on Kelly’s immigration views:

“First, Kelly believes that much of the current migration from Central American countries has its roots in drug consumption in the U.S., which drives violence. His view is that the ultimate solution to the migration crisis, in addition to reducing American drug use, is to support governments in the region attempting to restore public safety and economic opportunity. He also stated that he believes that part of the reason migrants are coming to the U.S. is because they carry the notion that once they arrive, they will be able to stay. In his pre-hearing questionnaire, he noted that senior leaders of Central American countries told him that, “If you do not start sending them back to their country of origin quickly and in large numbers they will never stop making the trek north.”

Completely missing from the discussion however was what the U.S. should do in the meantime while addressing the violence and other factors pushing people out of Central America. As well as, what are America’s obligations to individuals arriving from the region seeking safety and security?

There was also considerable discussion of low morale among Border Patrol employees to which Kelly said that he believed “the number one thing right now would be in accordance with the law, let the people who are tasked to protect the border do their job.” However, there was no examination of assertions that Border Patrol agents are “prevented” from doing their job.

Kelly also demonstrated mixed views on enforcement of immigration law. For example, in an exchange on the issue of so-called “sanctuary cities,” Kelly said, “I understand maybe the perspective of some of the local leaders, but I do think the law is the law and I think the law has to be followed.” Yet, in another exchange with Senator Kamala Harris of California about DACA recipients and their families, Kelly said that, “I think law abiding individuals would in my mind, with limited assets to execute the law, would probably not be at the top of the list.”

However the more specific the questions got on immigration the more Kelly appeared out of his depth and unprepared to provide answers. For example, Senator Harris asked if Kelly would honor the government’s commitment not to use information collected on DACA recipients for enforcement purposes. Kelly responded that he had not been involved in “the entire development of immigration policy that is ongoing,” and only promised to “be involved in those discussions” if confirmed.

Finally, in response to a question by Michigan’s Senator Gary Peters concerning the establishment of a government database on Muslims in the U.S. Kelly responded, “I don’t agree with registering people based on ethnic or religion or anything like that.”

Over the course of the hearing, senators from both parties praised Kelly’s service to the country and he is likely to be confirmed. His views on the complicated set of laws and policies that govern our immigration system are still largely unformed. Hopefully, his need to better understand the policies in place, will translate into engagement with stakeholders concerned with immigrants and immigration.”

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From what I have heard and read, General Kelly is a highly competent, thoughtful, well-organized leader who has the ability to inspire those around him. I’ve also read that he takes human rights responsibilities very seriously, and is willing to get input from a broad range of individuals — not just “insiders.” To me, that’s exactly what DHS needs: some perspective, discipline, and mission focus.

Yes, he doesn’t have an immigration background — most Generals don’t. But at least he comes at it from a professional law enforcement and national security angle — not as an advocate of reducing legal immigration or treating undocumented individuals like criminals.

And, he has some outstanding talent to advise him on immigration matters among the executive ranks of the career public servants at DHS. Lori L. Scialabba, Deputy Director of USCIS (former Chair of the BIA and Deputy General Counsel of the “Legacy INS”) and Raphael Choi, Chief Counsel of ICE in Arlington, VA immediately come to mind as accomplished managers with “big picture” views. I’m sure there are many others who can help General Kelly formulate reasonable and effective immigration policies.

My one concern from reading this particular clip was General Kelly’s repetition of the “urban myth” that the way to stem the flow of Central American refugees is by “quick returns.” That’s been the Obama Administration policy, and well as the policy of all other Administrations when faced with border incursions. It has demonstrably failed during the Obama Administration, as it consistently has for the last four decades and will continue to do so.

That’s because it’s based on the false premise that most arrivals can, or should be, returned. In reality, however, a substantial number, probably the majority, of those coming are fleeing violence, rape, death threats, and torture, and are therefore likely to have valid claims for protection under U.S. law if the proper legal standards are fairly and at least somewhat uniformly applied (something which, sadly, does not always happen).

Consequently, they can’t be sent home, and they are going to keep coming to apply for protection they are entitled to under our laws. And, throwing them in detention isn’t going to deter them either — that’s been proved. But it will certainly run up the taxpayers’ costs while eroding both our commitment to human rights and our moral standing as a nation.

Trying to reduce the violence and improve conditions in the Northern Triangle is important. It was mentioned by Gen. Kelly, but it’s a “long haul,” not a short term, solution.

In the short run, a larger, more inclusive and realistic overseas refugee processing program in or near the Northern Triangle, combined with use of available mechanisms such as Temporary Protected Status (“TPS”) and Deferred Enforced Departure (“DED”) to grant temporary protection short of asylum are likely to be more effective in promoting orderly border enforcement without adding to the workload of the already overwhelmed Asylum Offices and Immigration Courts.

We’re not going to be able to stop desperate individuals from coming without committing large scale violations of both domestic law and international treaty obligations. But, we should be able to manage the flow so that the “bad guys” get screened out and returned while the others can remain temporarily without going into the asylum system while we’re trying to sort out and improve the situation in the Northern Triangle. Perhaps, we also could reach agreements with other stable democracies in the Western Hemispheres to share the protection burden and distribute the flow. It’s not an easy problem, and there are no easy or great solutions.

I know these aren’t then “quick fixes” or “silver bullet” solutions that folks want to hear about. They also won’t satisfy those who want to shut to doors to migration.

But, four decades of working on “quick fixes” from all sides — law enforcement, private sector, and judicial — tells me that we need a better, more practical, and more humane approach. To just keep repeating the same failing policies over and over and expecting them to achieve success is, well, just plain . . . .

PWS

01/12/17

“AYUDA — MAKING AMERICA REALLY GREAT, EVERY DAY” — Meet A Spectacular Nonprofit Legal & Social Services Organization That “Walks The Walk and Talks The Talk” In The DC Metro Area — Read My Recent Speech Here!

AYUDA — MAKING AMERICA REALLY GREAT, EVERY DAY

January 11, 2017

Verizon Building

1300 Eye St., N.W.

Washington, D.C.

Remarks By Retired United States Immigration Judge Paul Wickham Schmidt

Good evening. Thank you Christina,[1] for that wonderful introduction. Thank you, Michael,[2] for extending your hospitality in Verizon’s “state of the art” training center. And, of course, thank you Arleen[3] for inviting me, and for all that you and AYUDA do for our community and for our nation.

Even more important, thanks to all of you here for your continued support and promotion of AYUDA’s essential mission — to help hard-working individuals in our community help themselves, through legal assistance and a variety of educational and social support programs. You are AYUDA, and without your continuing support, encouragement, and active participation there would be no AUYDA and hence no place for those vulnerable individuals to seek assistance. Our community and our nation would be immeasurably poorer if that happened.

By coincidence, I began my professional career in immigration law in 1973, the year AYUDA was founded. On a personal level, and I know that this touches on only one narrow aspect of AYUDA’s ambitious program, I want to thank all of you for the unwavering support, assistance, and consistent professional excellence that AYUDA provided to the U.S. Immigration Court in Arlington, Virginia during my 13-year tenure as a judge, and, of course, continuing on after my retirement.

The sole role of an U.S. Immigration Judge is to provide fair, impartial hearings that fully comply with the Due Process Clause of the United States Constitution to individuals whom the Department of Homeland Security (the “DHS”) has charged with being removable from the United States. Without competent legal representation of the individual before the court, known as a “respondent,” the job of insuring due process can be totally daunting. With dedicated professional groups like AYUDA coming to the defense, my task of conducting fair hearings magically went from “daunting” to “doable.”

Representation makes a real difference in the lives of individuals. Represented individuals succeed in securing relief in Immigration Court at a rate of at least five times greater than those appearing without representation. But, for some of the most vulnerable populations, such as “recently arrived women with children,” bureaucratic lingo to describe actual human beings seeking protection from rampant violence in Central America whose removal has been “prioritized” in Immigration Court, the “success differential” is simply astounding: 14 times!

I am honored tonight to be in the presence of two of the “real heroes – or, more properly, heroines,” of due process at the Arlington Immigration Court: your own “Hall of Famer,” the incomparable Anya Sykes,[4] and your amazingly talented newly appointed — great choice guys –Executive Director, Paula Fitzgerald. Both were “regulars” in my courtroom.

Quite simply, Anya and Paula save lives. Numerous hard working individuals and families in our community, who are contributing at the grass roots level to the greatness of America, owe their very existence to Anya, Paula, and AYUDA.

For example, last year alone, AYUDA helped a remarkable 1,900 individuals resolve more than 3,500 matters in our legal system. And, Immigration Court is just the “tip of the iceberg.” Much of the work was done with the United States Citizenship and Immigration Services, with domestic violence victims in local courts, and through AYUDA’s superstar Social Services and Language Services branches.

I know we all want to get back to main event – eating, drinking, and being merry. So, I’m going to limit myself to one “war story” about my time with Anya and Paula in court.

As some of you probably know, there is a wonderful law enacted some years ago known as “NACARA.” It really could be a model for future laws enabling earned membership in our national community. NACARA has allowed thousands of individuals in our community who decades ago fled violence in Nicaragua, El Salvador, and Guatemala, and have lived law abiding, productive lives here for many years, often in valid Temporary Protected Status, to obtain green cards and get on the track for U.S. citizenship and full participation in the vibrant political life of our community and our country.

The basic NACARA criteria were fairly straightforward, and most individuals were able to have their applications granted at the Asylum Office of the USCIS. But, as with any mass adjudication program, there was group of so-called “dog cases” left over at the end.

Most of those involved individuals who had served or were believed to have served with the Salvadoran military or Civil Patrol during the civil war that raged in the 1980s. If you remember, the U.S. supported the Salvadoran government during that civil war, and some of the individuals who served in the Salvadoran Army actually received training or instruction at military installations in the United States.

At that time, international human rights groups claimed that the Salvadoran government and military were engaging in large scale human rights violations, many directed against innocent civilians, in an effort to suppress guerilla insurgents. Our Government denied, downplayed, or outright ignored most of these claims and refused asylum to almost all Salvadorans on the grounds that no persecution was occurring.

Times change, however, and at some point somebody in our Government actually looked at the evidence and agreed, long after the fact, that the Salvadoran government and military had committed large scale “persecution of others,” even though many of the “others” had been denied asylum in the U.S. based on inability to establish that persecution.

By the time I arrived at the Arlington Immigration Court, the DHS was taking the position that nearly all individuals connected with the Salvadoran military were presumed to be “persecutors,” and therefore should be denied NACARA unless the individual could prove, by credible evidence, that he or she did not, in fact, engage in persecution decades earlier during the civil war. These cases were routinely declined at the Asylum Office and “referred” to our court for re-adjudication.

As you might imagine, such cases are extremely complicated, requiring the individual not only to have detailed knowledge of the structure and activities of the Salvadoran military during the civil war but also specific knowledge of what individual units and soldiers were doing at particular times, places, and dates, and to be able to coherently account for and corroborate their own activities at those times.

Most of those “referred” were hard working, tax paying, law-abiding individuals who had lived in the U.S. for decades, and supported their families, but did not have the necessary funds to pay for good lawyers familiar with, and willing to handle, this type of sophisticated case. The chance of an individual being able to successfully present his or her own case was approximately “zero.” Most were completely bewildered as to why service with the U.S.-supported government of El Salvador, once considered a “good” thing, was now a “bad thing,” requiring mandatory denial of their NACARA applications.

This is where talented NGO lawyers like Paula and Anya stepped in. With their help and legal expertise, notwithstanding the passage of decades, individuals were able to document, corroborate, and testify convincingly about their “non-persecutory” activities during the civil war. I recollect that every such NACARA case handled by AYUDA before me eventually was granted, most without appeal or with the actual concurrence of the DHS Assistant Chief Counsel.

As a direct consequence, hard working, productive, law-abiding, tax-paying individuals remained in the community, continued to support their families, and, with green cards in hand, could now find better work opportunities and get on the path to eventual U.S. citizenship and full participation in our national community. This is “Lifesaving 101” in action, and Anya, Paula, and AYUDA are the “lifesavers.” If there were an “Arlington Immigration Court Hall of Fame,” they would certainly be in it. In addition to their outstanding services to AYUDA’s clients, Anya and Paula are inspiring mentors and role models for lawyers just entering the field.

In closing, I’ve always tried to keep five important values in front of me: fairness, scholarship, timeliness, respect, and teamwork. Dedicated individuals like Anya and Paula, and great organizations like AYUDA, embody these important values.

And, beyond that, these are your values. Your investment in AYUDA and its critical mission is an investment in social justice and the values that have made our country great and will continue to do so into the future.

Thanks for coming, thanks for listening, and, most of all, thanks for your investment in AYUDA and turning your values into effective action that saves lives, builds futures, and insures the continuing greatness of America.

[1] Christina M. Wilkes, Esquire, Partner, Grossman Law Firm, LLC – Chair, AYUDA Board of Directors.

[2] Michael Woods, Esquire, Vice President and Associate General Counsel, Verizon — Director, AYUDA Board of Directors.

[3] Arleen Ramirez Borysiewicz, Director of Program Initiatives, AYUDA.

[4] Unfortunately, Anya was unable to attend. But, almost everyone in the room was mouthing “Anya” when I said the word “heroine” so I realized that she was “there is spirit” and proceeded accordingly. Anya Sykes was inducted into the AYUDA Hall of Fame in 2013.

Senator Cory Booker Is Skeptical That Jeff Sessions Will “Seek Justice For All” As AG!

https://www.washingtonpost.com/world/national-security/jeff-sessions-has-made-his-case-to-be-the-attorney-general-now-the-senate-will-hear-from-supporters-and-detractors/2017/01/10/5683ce24-d796-11e6-9a36-1d296534b31e_story.html?hpid=hp_rhp-top-table-main_sessions-1225p%3Ahomepage%2Fstory&utm_term=.60a27c7babe2

In an unprecedented move, Senator Cory Booker (D-NJ) became the first U.S. Senator ever to testify against a colleague during a confirmation hearing. In the above account from the Washington Post, Senator Booker charged that:

“If confirmed, Sen. Sessions will be required to pursue justice for women, but his record indicates that he won’t,” Booker said. “He will be expected to defend the equal rights of gay and lesbian and transgender Americans, but his record indicates that he won’t. He will be expected to defend voting rights, but his record indicates that he won’t. He will be expected to defend the rights of immigrants and affirm their human dignity, but the record indicates that he won’t.”

The Senate Judiciary Committee also heard testimony from a number of Sessions’s supporters, including former Attorney General Michael Mukasey, who said, according to the Post:

“Sessions is “thoroughly dedicated to the rule of law and the mission of the [Justice] department.”

The Post also reported that the Committee heard testimony from Oscar Vasquez, a former undocumented individual, who expressed the fear of many so-called “Dreamers” that as Attorney General Sessions will support the revocation of their protected status and use the information that they voluntarily furnished to the USCIS to institute removal proceedings.

During yesterday’s hearing, Senator Sessions took a somewhat ambiguous position on Dreamers. He indicated he would have no problem if President Trump decided to revoke the Executive Order establishing the DACA program, while at the same time acknowledging that there was no plan in the offing to actually place Dreamers into removal proceedings.

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Notwithstanding Senator Booker’s reservations, and those of many others in the civil rights, human rights, women’s rights, and immigrants’ rights communities, Senator Sessions will be the next Attorney General. At best, therefore, Senator Booker’s testimony was a “marker” in the event that once confirmed, Senator Sessions abandons his promise to seek justice for all Americans (which includes lawfully resident immigrants and undocumented individuals residing in the United States) and returns to the much narrower view of civil rights, human rights, women’s rights, and immigrants’ rights that he has often expressed and defended during his long Senate career.

It’s a tall order for Senator Sessions to rise above the limitations of his past and take a broader, more inclusive, more humane view of the U.S. legal system. But, for the sake of all Americans, I sincerely hope he can pull it off.

PWS

01/11/17

Sessions Gives Few Specifics About Immigration Role During First Day of Hearings — Offers Neither Support Nor Solution For Dreamers, But Doesn’t Consider Them Removal Priorities — Defends Hard Line Positions, But Says He Would Like To Work Together On Solving Difficult Problem In Compassionate Manner

http://www.huffingtonpost.com/entry/jeff-sessions-dick-durbin-immigration_us_58751aa5e4b02b5f858b5c4a

“The attorney general is not in charge of most deportation efforts ― that falls to the Department of Homeland Security. But should he be confirmed, Sessions would still have plenty of power to affect immigration matters, from shaping the resources immigration courts receive and how they make decisions to pressuring local law enforcement to assist in deportation efforts.

Sessions said that Durbin was “wrong” about what his record indicates he’d do as attorney general, but he also defended his support of limiting immigration and increasing deportations.

“I believe the American people spoke clearly in this election,” Sessions said. “I believe they agreed with my basic view and I think it’s a good view, a decent view, a solid legal view for the United States of America that we create a lawful system of immigration that allows people to apply to this country and if they’re accepted, they get in; if they’re not accepted, they don’t get in.”

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Senator Sessions seemed neither sympathetic to, nor understanding of, the difficult situation of “Dreamers.” On the plus side, he seemed to recognize that the Dreamers, and similarly situated individuals who have successfully integrated into the community of the United States, probably aren’t going anywhere, but offered no specific suggestions as to how they should be treated if DACA is withdrawn.

I was somewhat encouraged by the Senator’s recognition of the complexity of the immigration issue — something many enforcement-oriented individuals refuse to acknowledge — the need to work together to solve problems, ideally through legislation, and his use of the term “compassionate.” He also seems to appreciate that being the Attorney General of the United States is a markedly different role than representing Alabama in the Senate — it’s a bigger picture with a much border, more diverse constituency.

As far as I can tell from reading press accounts, Senator Sessions was neither asked about nor did he reveal his plans for what is probably going to be his biggest problem when he assumes the leadership of the Department of Justice — the total meltdown of the U.S. Immigration Court System.

PWS

01-11-17

Post Editorial Slams Total Due Process Meltdown In U.S. Immigration Courts! Why We Need An Independent Article I Immigration Court — Now!

https://www.washingtonpost.com/opinions/americas-immigration-courts-are-a-diorama-of-dysfunction/2017/01/09/38c59cf6-ceda-11e6-b8a2-8c2a61b0436f_story.html?utm_term=.2597096ea1d8

“The nation’s 58 immigration courts, administered not by the judiciary but by the Justice Department, are places of Dickensian impenetrability, operating under comically antiquated conditions. Case files are scarcely digitized. Clerks are outmatched by mountains of paper files. Translators struggle to convey evidence and legal concepts across linguistic and cultural barriers.
Disgracefully, wild disparities in outcomes and legal standards characterize the various courts, meaning that asylum seekers who appear before immigration judges in Atlanta face almost impossibly long odds and are generally ordered deported, while those in New York are usually granted relief and allowed to remain in the country.

In these courts, the idea of justice itself is so degraded, and the burnout rate so high, that some immigration lawyers have simply thrown in the towel. One of them, movingly profiled by The Post’s Chico Harlan, got sick of the charade and finally quit. “I genuinely believed these people could die if they’re sent back” to their home countries, said Elizabeth Matherne, who once represented asylum seekers. “And you’re talking to somebody” — the judge — “who is not listening.”

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Why We Need An Independent Article I Immigration Court — Now!

By Paul Wickham Schmidt

Not a pretty picture of Due Process in America, especially for a Court System whose noble, but forgotten, “Vision” is supposed to be “though teamwork and innovation be the world’s best administrative tribunals, guaranteeing fairness and due process for all.”

Undoubtedly, this downward spiral into judicial dysfunction started with the politically-motivated manipulation of the Immigration Courts and the selection system for Immigration Judges and Board of Immigration Appeals Members during the Bush Administration.

But, the Obama Administration had eight years to clean up this mess. Not only has it failed to act, but in some ways has made it even worse. Even in the disastrous Bush years, the backlog of pending cases never approached today’s level of more than 530,000, and it’s growing every day.

The Justice Department has no plausible plan for dealing with this morass, which directly affects the lives and futures of millions of “real people.” Nor is there even a rudimentary plan in place to implement an e-filing system — a staple of virtually every other Federal Court System. Under the Department of Justice, the Executive Office for Immigration Review (“EOIR”), which is charged with administering the Immigration Courts, began “studying” the process for e-filing more than 15 years ago — so far, without achieving any visible success.

Yes, Congress has failed to pass practical, badly needed reforms of the immigration system, unnecessarily compounding the Immigration Courts’ burdens. And, yes, the Congressional approach to appropriating needed resources for the Immigration Courts has been inconsistent and all too often has lagged far beyond funding for immigration enforcement.

But, for the most part, the Immigration Courts are the responsibility of the Executive Branch and the Justice Department. The structure, supervision, and operation of the Immigration Courts is almost entirely a matter of Justice Department regulations. Judicial selections do not have to go through the cumbersome Senate confirmation process.

The Justice Department has shown neither enthusiasm nor the ability to promptly fill existing judicial vacancies through a transparent merit selection system, nor has sufficient attention been paid to locating the necessary courtroom space or planning for painfully obvious expansion needs. Even if all the existing judicial vacancies were filled, as of today there is no place to put the extra Immigration Judges. Effective judicial administration, never a point of expertise for the Justice Department, has completely disintegrated over the past decade and one-half under Administrations of both parties and a succession of Attorneys General who simply failed in their duty to run a fair, efficient, highly professional Immigration Court system.

We have not yet seen the Trump Administration’s and Attorney General Sessions’s plans for how to restore justice to the Immigration Court system. But, the preliminary rhetoric isn’t encouraging — lots of tough talk about immigration enforcement, but neither acknowledgement of nor emphasis on the accompanying equally important need for achieving and protecting due process in the Immigration Courts.

After more than three decades in the Justice Department, the Immigration Courts have not developed in a way that fulfills their essential role in insuring fairness and guaranteeing due process in the removal hearing process. Waiting for the Justice Department to appropriately reform the system is like “Waiting for Godot.” It’s more than time for bipartisan action in Congress to remove the Immigration Courts from the Department of Justice and create an independent, well-functioning Article I Immigration Court. Only then, will the Immigration Courts be able to achieve their “noble vision” of “through teamwork and innovation be the world’s best tribunals guaranteeing fairness and due process for all.”

PWS

01/10/17

Human Rights First Chief Critiques Obama Administration On Human Rights!

https://www.washingtonpost.com/posteverything/wp/2017/01/09/obamas-human-rights-failures-could-pave-the-way-for-trumps-excesses/

Kenneth Roth, Executive Director do Human Rights First writes in this Washington Post op-ed:

“As President-elect Donald Trump prepares to take office, many understandably fear a new hostility to human rights. One area of particular concern will be his approach to fighting terrorism: Nearly a year ago, he declared that “torture works”; he has expressed admiration for various dictators; and at one point during the campaign, he said, “When you get these terrorists, you have to take out their families.”

Sadly, Trump’s ability to disregard human rights norms will be made easier by President Obama’s inability to fully roll back and confront President George W. Bush’s abuses.”

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Roth doesn’t even touch on the important issue of immigration. Overuse of immigration detention, poor detention conditions, hijacking of the U.S. Immigration Court’s due process mission to achieve enforcement objectives, and purposely wooden and underclusive interpretations of the Convention Against Torture and “particular social group” protections for refugees were largely left unaddressed or arguably even aggravated under the Obama Administration.

PWS

01/09/17

My Upcoming Interview With David Noriega On Vice News/HBO

I did a taped interview today with Vice News Reporter David Noriega. It was done in the freezing cold and wind outside the U.S. Department of Justice at the corner of 9th and Pennsylvania — but, it probably would have been warmer outside Lambeau Field (“Go Pack Go”). It’s possible the only “takeaway” will be “Man you guys sure look cold out there!” It was worse for David, who hails from sunny California, than those of us born and raised in the frigid winters of Wisconsin.

The subject is why the Attorney General’s role in administering the U.S. Immigration Court system is so critically important to the hundreds of thousands of individuals who depend on that system for due process and fair treatment, to the many Immigration Judges and support staff who have dedicated their professional lives to making the system work, and to our nation and its future.

The interview is scheduled to air tomorrow night, Tuesday, January 10, 2017, at 7:30 PM EST, on the “Vice News” show on HBO (which we don’t happen to have on our cable package). But, I encourage everyone with HBO access to tune in and see how David and I did, elements notwithstanding.

PWS

01/09/17

The First Target Of The Trump/Sessions Immigration Agenda Might Not Be Undocumented Individuals — “H-1B” Program That Brings Professionals and Techies In To Aid U.S. Companies Appears To Be In The Crosshairs — Some Indian Pols Rejoice At Prospect Of Relocating Silicon Valley To India!

https://www.washingtonpost.com/world/asia_pacific/trump-and-sessions-plan-to-restrict-highly-skilled-foreign-workers-hyderabad-says-bring-it-on/2017/01/08/8701e0ca-d2c0-11e6-aa0c-f196d8ef0650_story.html?utm_term=.bd6585171144

“But the H-1B cap meant that the bulk of Indian tech workers stayed back. The current cap — not just from India — is 65,000, plus another 20,000 who have graduated from American universities with advanced degrees, down from almost double that at the beginning of the 2000s.

Among those who do get the visas, most ultimately return to settle and work in India. In Hyderabad, many of those returnees are confident that their city can compete with Silicon Valley for India’s brightest young minds.

K.T. Rama Rao, the son of the current chief minister, was one of them. Now he’s the minister for information technology in his father’s government. He pointed to Apple as an example of how Hyderabad could absorb the thousands of workers in a potential future with far fewer H-1Bs — or without them altogether.

“Apple is already moving their maps division here, and they’re doing that because we’re producing more G.I.S. talent than anyone else in the world,” he claimed in an interview, referring to geographic information systems. “Ideally, a president of the United States would have a balanced perspective on business, but if he wants tech firms to stay, he should create better job readiness in the U.S.”

Rao said that legislation targeting big Indian outsourcing companies would wean them away from their dependency on servicing American companies. Without the visa program, they would have to engage in new lines of work that created value in Hyderabad and not abroad, he said.

Amit Jain, now the president of Uber India, is another returnee who used to be on an H-1B. He said that the influx of American companies, as well as a growing indigenous start-up culture, could offer what Indians used to seek in the United States closer to home.

“We definitely have a more robust ecosystem here now,” he said. “We’re seeing plenty of hiring in the future.”

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I find the projected continued role of Jeff Sessions in this process interesting. While the Attorney General used to be responsible for administering the H-1B program, that ended more than a decade ago with the transfer of the adjudication functions of the “Legacy INS” to the then newly created Department of Homeland Security (“DHS”) and it’s United States Citizenship and Immigration Services (“USCIS”) Division. The Attorney General’s responsibility for the H-1B program is now strictly “in the margins:” narrow legal issues involving individuals in H-1B status occasionally arise in Immigration Court proceedings, and the Office of Immigration Litigation (“OIL”) in the Civil Division and the U.S. Attorneys are occasionally called upon to defend particular USCIS policies or interpretations of the H-1B category in Federal Court.

Normally, the moving force within an Administration on H-1B policies and reforms would be the Secretary of Homeland Security — soon to be General John Kelly. Sessions’s continued involvement as Attorney General in what normally would be DHS/USCIS issues, could presage a reincarnation of the old “Commissioner of Immigration” role. The Commissioner once headed the INS within the Department of Justice and was a powerful figure whose “finger was literally in every pie in the immigration world.”

My recollection is that one of the ideas of moving the immigration enforcement and service functions to the DHS, while leaving the Immigration Courts behind within the Department of Justice was to increase the separation of the immigration enforcement and service functions from the legal and “fair and impartial hearing” functions of the Immigration Courts. While this distinction has always worked better in theory (and, perhaps, in terms of perception) than in actual practice, it is likely to become further blurred and hampered if the Attorney General intends to assume a primary immigration enforcement and policy making role within the Administration.

Presumably, Senator Sessions’s specific views on how he sees his role in immigration and his plans for maintaining and improving the due process role of the Immigration Courts — currently struggling with a 500,000+ case backlog and dozens of unfilled judicial positions — will be better fleshed out during the upcoming confirmation process.

PWS

01/09/17

Sessions’s “Enforcement Only” Views On Immigration Detailed — “Nice Guy” Factor Expected To Smooth Comfirmation

https://www.washingtonpost.com/world/national-security/at-the-justice-department-sessions-could-play-a-key-role-on-immigration/2017/01/07/84a94a54-c7c9-11e6-85b5-76616a33048d_story.html?utm_term=.

“As a senator from Alabama, Jeff Sessions has vigorously opposed any efforts to reform the U.S. immigration system in ways that might benefit those in the country illegally. He has advocated tempering even legal immigration, fearful that people from other countries might take Americans’ jobs.

Sessions (R), President-elect Donald Trump’s pick to be the next attorney general, will face no shortage of questions at his confirmation hearing starting Tuesday about his alleged past racist comments, his prosecution of civil rights activists, and his views on voting rights and same-sex marriage. But civil liberties advocates say Sessions’s views on immigration concern them just as much because of the role the Justice Department plays in dealing with those who come to the United States from other countries, and because of the constitutionally questionable policies Trump has suggested that Sessions’s Justice Department would likely implement.”

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

While there have been plenty of “negative vibes” about the Sessions nomination, based on his lack of sympathy for civil rights and immigrants, his “nice guy” persona during a long Senate career virtually assures his confirmation as described in this Washington Post article.

https://www.washingtonpost.com/powerpost/jeff-sessions-should-have-been-a-tough-sell-in-the-us-senate-thats-not-likely/2017/01/07/2de7c280-d44f-11e6-9cb0-54ab630851e8_story.html?utm_term=.66b34036721a

PWS

01/07/17

David Leopold Warns About Possible Five-Point Attack On Immigrants By Attorney General Sessions

http://www.huffingtonpost.com/entry/five-chilling-ways-senator-jeff-sessions-could-attack-immigrants-as-attorney-general_us_5870022ce4b099cdb0fd2ef7

“As the nation’s top lawyer, head of the immigration court, and civil rights officer, Jeff Sessions would have access to multiple tools to harm immigrants and undermine due process. Given his rhetoric and record as a United States Senator, as well as his association with anti-immigrant extremists, there is every reason to believe he would use all of them.

Here are five ways Sessions could attempt to undermine immigrants and immigration policy if confirmed as Attorney General:

Impose his radical, anti-immigrant ideology on decisions by the federal immigration courts;

Expand the number of immigrants who are deported even though they qualify for a green card or asylum;

Reduce access to legal counsel and information about immigrants’ legal rights;

Criminalize immigrants by bringing trumped up charges against ordinary workers; and

Strong arm state and local police to become Trump deportation agents

Of course, any attempt Sessions would make to undermine civil and due process rights will be met by strong litigation from the outside. But the U.S. Senate should block his confirmation from the start, as Senator Sessions is highly unqualified for this position and has showed a profound disregard for civil and human rights.”

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

Sorry, David, but Jeff Sessions has the votes to be confirmed as the next Attorney General. Those who don’t like that can rant, but that’s not going to change the reality that Donald Trump won the Presidential election and the Republicans firmly control both Houses of Congress.

When you lose elections at the national and state levels, like the Democrats did, you end up with next to no leverage on appointments or policies unless you can reach across the aisle and strike a chord with at least some Republicans. Right now, it appears that all Republican Senators, and probably a few Democrats, ewill vote for Senator Sessions’s confirmation. Whatever his pros and cons, Senator Sessions appears to have had the wisdom to be polite and cordial to his colleagues and to occasionally reach across the aisle on issues of common interest. Rightly or wrongly, that seems to count for a lot when current or former Senators come up for confirmation to Executive Branch positions.

So barring a “bombshell” next week, and I must say his record has been “flyspecked” — regardless of what he put in the Judiciary Committee questionnaire — that’s unlikely. For better or worse, Senator Session’s views on a wide variety of subjects and his conduct as a public servant over many decades are a matter of public record. Nothing in that record seems to have given pause to any of his Republican Senate colleagues.

That being said, it woulds be nice to think that upon hearing some of the criticisms, Jeff Sessions will reflect on the huge differences between being a Senator from Alabama, the Attorney General of Alabama, and a U.S. Attorney for Alabama, and the wider responsibilities of being the chief law enforcement official, legal adviser, and litigator representing all of the People of the United States, not just the Trump Administration.

David is, of course, correct to focus on Attorney General Session’s vast authority over immigration. He will control a huge and critically important U.S. Immigration Court System currently sporting a backlog of more than one-half million cases and suffering from chronically inadequate judicial administration and lack of basic technology like e-filing. While there certainly is an interrelationship among civil rights, human rights, and due process in the Immigration Courts, there is every reason to believe that Attorney General Session’s biggest impact will be in the field of immigration.

If things go as David predicts, then the battle over fundamental fairness and due process in immigration policy and the Immigration Courts is likely to be fought out in the Article III Federal Courts, which, unlike the Immigration Courts, aren’t under Executive control. That will have some drawbacks for everyone, but particularly for the Trump Administration.

And, if Sessions is wise, he’ll look back at what happened when the Bush Administration tried to promote a “rubber stamp” approach to justice and due process in the Immigration Courts. The U.S. Courts of Appeals were outraged at the patent lack of due process and fundamental fairness as “not quite ready for prime time” cases were “streamlined” and thrown into the Courts of Appeals for review with glaring factual errors and remarkable legal defects. Not totally incidentally, this also dramatically increased their workload, with judicial review of immigration matters occupying a majority of the docket in several prominent circuits.

As a result, cases were returned to the Board of Immigration Appeals, who then returned them to the Immigration Courts for “re-dos,” in droves. The Courts of Appeals lost faith in the Executive’s ability to run a fundamentally fair, high quality Immigration Court System, and basically placed the Immigration Courts into “judicial receivership” until things stabilized at least somewhat. The waste and abuse of taxpayer dollars caused by this “haste makes waste” approach was beyond contemplation and, for a time, threatened to paralyze the entire American justice system.

Additionally, it would be a huge mistake for the Trump Administration to view the Bush Administration’s Immigration Court debacle as the product of “bleeding heart liberal appellate judges” appointed by President Bill Clinton. The criticism from Article III Judges cut across political lines. Two of the most outspoken judicial critics of the Bush Administration’s handling of the U.S. Immigration Courts were Republican appointees: then Chief Judge John M. Walker, Jr. of the Second Circuit and Judge Richard Posner of the Seventh Circuit. Indeed, Judge Walker is a cousin of former President George H.W. Bush.

Obviously, those who favor greater immigration enforcement won the election and are going to have a chance to try out their policies. But, “enhanced enforcement” is likely to be effective only if we have a fair, impartial, and totally due process oriented Immigration Court System.

In other words, the Immigration Courts must be a “level playing field” with judges who, in the words of Chief Justice Roberts, play the role of “impartial umpires” between those seeking to stay in our country and those seeking to remove them. Results from such a due-process oriented system would be more likely to inspire confidence from the U.S. Courts of Appeals, thereby increasing the stature of the Immigration Courts and their ability to achieve final resolutions at the initial, and most cost-efficient, level of our justice system. Due process and fairness in the Immigration Court System should be a nonpartisan common interest no matter where one stands on other aspects of the “immigration debate.”

We are about to find out what Attorney General Jeff Sessions has in mind for the U.S. Immigration Courts and the rest of the U.S. justice system. I’m hoping for the best, but preparing to assert the essential constitutional requirement for due process in the Immigration Courts if, as David predicts, it comes under attack.

Due Process Forever!

PWS

01/07/16

Read Political Satire From Andy Borowitz: “Nation with Crumbling Bridges and Roads Excited to Build Giant Wall”

http://www.newyorker.com/humor/borowitz-report/nation-with-crumbling-bridges-and-roads-excited-to-build-giant-wall

“WASHINGTON ()—As America’s bridges, roads, and other infrastructure dangerously deteriorate from decades of neglect, there is a mounting sense of urgency that it is time to build a giant wall.

Across the U.S., whose rail system is a rickety antique plagued by deadly accidents, Americans are increasingly recognizing that building a wall with Mexico, and possibly another one with Canada, should be the country’s top priority.

Harland Dorrinson, the executive director of a Washington-based think tank called the Center for Responsible Immigration, believes that most Americans favor the building of border walls over extravagant pet projects like structurally sound freeway overpasses.

“The estimated cost of a border wall with Mexico is five billion dollars,” he said. “We could easily blow the same amount of money on infrastructure repairs and have nothing to show for it but functioning highways.”

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

Will the incoming Trump Administration sound the death knell for political satirists like Andy Horowitz? It’s getting pretty hard to tell the difference among “satire,” “fake news,” “made up facts,” and what passes for “truth” these days.

After all, we do actually have a a group of so-called “fiscal conservatives” in Congress lining up to throw perhaps as much as eight billion dollars (almost like “real money”) at a project that most immigration experts, whether “hardliners” or “softliners,” agree is a waste of time and money and won’t solve the problems of border security and immigration enforcement. These same legislators can’t, or won’t, come up with the money to fund things like health care, the safety net, public education, our infrastructure, or government salaries.

And, for those of us who are, probably naively, hoping that soon to be Attorney General Jeff Sessions would take his new, broader responsibilities to our country seriously, rethink some of his ill-advised anti-immigrant positions, and at least occasionally act as the “adult in the room” — counseling prudence and moderation — there is some, perhaps not unexpected, bad news.

According to the article below from today’s Washington Post, Sessions and his closest advisers apparently are working behind the scenes to “egg on” the Administration and Congress to throw taxpayer money at this futile, and nationally embarrassing, project. Could we fix the current mess in the U.S. Immigration Courts — which Sessions will run — for eight billion dollars? You bet we could!

We could build a first-class, independent, due process oriented court system that would be a source of national pride and would live up to its currently unfulfilled vision of “through teamwork and innovation be the world’s best tribunals, guaranteeing fairness and due process for all.” And, there would be plenty left over from the eight billion dollars to spend on thoughtful immigration and border enforcement if that’s what Sessions and others in the Administration and Congress really want. It should be a classic “win-win.” But, will it happen? Only time will tell. But, the early signs aren’t very promising.

https://www.washingtonpost.com/politics/hill-republicans-embrace-building-of-border-wall-despite-cost/2017/01/06/06f29b18-d432-11e6-9cb0-54ab630851e8_story.html?utm_term=.fac057dfce36

PWS

01/07/16

First “Refugee Ball” To Be Held In DC on January 17, 2017!

http://www.asylumist.com/2017/01/06/the-refugee-ball-why-we-celebrate/

“Here, though, I want to talk about what we are celebrating, and why. The “reason for the season,” as it were. The Ball takes place a day after the Martin Luther King, Jr. holiday. Dr. King famously said, the “arc of the moral universe is long, but it bends towards justice.” Of course, the arc does not bend by itself. People have to work hard to push it in the right direction.

One purpose of the Ball is to celebrate the people who help bend the arc by assisting refugees and asylum seekers: Lawyers, doctors, social workers, activists, students, and advocates.

But more than those of us who are helping refugees and asylum seekers, the purpose of the Ball is to celebrate the refugees and asylum seekers themselves; people who have worked and sacrificed and struggled for justice. Attending the Ball will be activists for democracy and peace and women’s rights, journalists who have stood up for free speech against tyrants, advocates for gay and lesbian rights, members of religious minorities who have risked their lives for their faith, members of oppressed ethnic minorities and oppressed nationalities, interpreters and aid workers who have stood shoulder-to-shoulder with our own country’s soldiers and diplomats in places like Afghanistan and Iraq. These people—asylum seekers and refugees—have risked their careers, their property, and their lives in order to help bend the arc of the moral universe towards justice.”

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

For complete information on the Refugee Ball and how you can attend and support it, go over to The Asylumist on the above link.

PWS

01/07/17

L.A.’s Already Overwhelmed Immigration Court Could Simply Collapse Under A Trump Enforcement Initiative!

http://www.scpr.org/programs/take-two/2016/12/27/54010/la-s-busy-immigration-courts-could-swell-under-tru

“The burden on judges could also increase, as dockets swell with more cases and those on the bench come under increasing pressure to render decisions.

“I see this as a pot that is going to boil over and scald everybody,” said Bruce Einhorn, a former immigration judge in Los Angeles. “I just don’t see pragmatically how you can almost double the number of cases without spending huge amounts of money to try to accommodate the dockets of the cases already on schedule and those that will be brought into the system.”

The backlog of cases is not new. It has steadily increased over the past decade — even as fewer immigrants have been apprehended along the Southwest border in recent years. In response, the Executive Office for Immigration Review, the agency that oversees the courts, has added more judges, including one to Los Angeles in November. It’s also prioritized juvenile cases in an effort to speed up cases of migrant youth.”

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

The full article, at the link, contains a 9-minute audio segment. Does anyone seriously think that adding one Immigration Judge in Los Angeles or “prioritizing” juvenile cases will solve this mess?

Actually, the misguided prioritization of juvenile cases, many of them unrepresented, over longer pending cases of represented individuals is exactly the type of “Aimless Docket Reschuffling” that has created a practically insurmountable backlog in the Immigration Courts, notwithstanding a modest decline in new case receipts and a modest increase in resources. The inability of the DOJ and EOIR to establish an efficient merit hiring system for new Immigrstion Judges and poor planning for additional courtrooms to house new judges has also aggravated the problem.

PWS

01/05/17

Legal Representation Funds & Accredited Representatives — A Smarter Approach For “Sanctuary Cities?”

http://thehill.com/blogs/pundits-blog/immigration/312909-sanctuary-cities-have-a-new-cheaper-way-to-help-undocumented

Nolan Rappaport writes in The Hill:

“A few days after the Chicago City Council approved Mayor Emanuel’s Legal Protection Fund, Los Angeles officials announced that they had created a legal defense fund too. With help from philanthropists, Los Angeles established a $10 million fund to provide legal assistance for the city’s undocumented immigrants who are placed in removal proceedings.

These funds are an extension of their sanctuary city status to protect undocumented immigrants.

Chicago passed such an ordinance four years ago which provides that police can only give federal immigration officers information on undocumented immigrants that have arrest warrants out on them or are convicted criminals. This only applied to Chicago.

California, Connecticut, New Mexico, and Colorado have made their entire states immigrant sanctuaries.

Point No. 4 in President-Elect Trump’s 10-Point Plan to Put America First calls for an end to sanctuary cities, which presumably will be done by threatening to withhold federal funds from cities that refuse to cooperate with his administration’s enforcement program.

Mayor Emanuel’s Legal Protect Fund may be a more effective way to protect undocumented immigrants from deportation and it should avoid that threat.

The benefit of legal representation is illustrated by TRAC statistics which show that the likelihood of success with an asylum application is much higher with representation [chart omitted].”

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

New York City has also done some outstanding work on providing representation to needy migrants in Immigration Court. In the full article, Nolan also points out that EOIR’s recently revised program for non-attorney Accredited Representatives — now administered by the Office of Legal Access Programs (“OLAP”) rather than the Board of Immigration Appeals (“BIA”) — presents important opportunities for improving and expanding pro bono representation.

Additionally, Professor Michele Pistone of Villanova Law School is developing a revolutionary “modular training program” for Accredited Representatives that could dramatically increase both the number and quality of those willing to serve nonprofit organizations in this currently underutilized capacity.

Looks like lots of creative thinking combined with effective action is going on among the members of the immigration pro bono community. Providing and facilitating representation is is probably the most important aspect of providing due process in Immigration Court. In stark contrast to these efforts by the non-Federal sector, the “prioritization” of cases of recently arrived families by the U.S. Department of Justice has seriously impeded due process in contravention of the mission and vision of the U.S. Immigration Courts.

PWS

01/06/17

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