Due Process – Page 299 – immigrationcourtside.com

“Brief Of The Two Steves” — Read The Yale-Loehr/Legomsky Amicus Brief Explaining Immigration Detention Filed With The Supremes in Jennings v. Rodriguez!

TABLE OF CONTENTS

Interest of amici curiae………………………………………………. 1 Introduction and summary ………………………………………… 2 Argument…………………………………………………………………… 5

Aliens arriving in the United States at a port
of entry…………………………………………………………….6
1. Arriving asylum seekers are detained
  under color of Section 1225(b)(1)(B)(ii),
  even after an asylum officer has found a credible fear of persecution………………………… 6
  1. Asylum seekers detained under Section 1225(b)(1)(B)(ii) have limited oppor- tunity for review of detention or re-
    lease ……………………………………………………… 7
  2. Aliens seeking asylum may be detained for lengthy periods ……………………………….. 9
2. Arriving aliens who are not subject to expedited removal, but are not “clearly
  and beyond a doubt entitled to be
  admitted,” are detained under color of Section 1225(b)(2)(A)………………………………… 11
Aliens apprehended in the United States………. 13
1. Aliens apprehended in the United States
  but not convicted of a qualifying crime may be detained and are only sometimes permitted a bond hearing pending a
  removal decision ………………………………………. 13
2. Aliens apprehended in the United States
  who are convicted of a qualifying crime are subject to mandatory detention and are
  not provided opportunities for conditional release except in limited circumstances……. 16(I)

Table of Contents—Continued:

Aliens convicted of qualifying crimes are detained under Section 1226(c)…………… 16
Aliens detained under Section 1226(c) are released from detention in only narrow circumstances…………………………………….. 17
Aliens held under Section 1226(c) general- ly are detained for longer periods of time than are other aliens ………………………….. 19

C. Aliens ordered removed are generally detained until the removal order is
executed ………………………………………………….. 21

III. The bond hearing process provides limited procedural rights, which vary across the circuits………………………………………………………….. 22

Aliens detained under Section 1226(a) are entitled to bond hearings in certain circumstances………………………………………….. 22
Federal courts have held that aliens
detained under Sections 1225(b), 1226(a),
and 1226(c) are entitled to bond hearings when detention becomes prolonged………….. 28
1. The Ninth and Second Circuits provide for bond hearings for aliens detained
  over six months…………………………………… 30
2. The First, Third, Sixth and Eleventh Cir- cuits provide for bond hearings on a case- by-case basis………………………………………. 31
3. Bond hearings based on prolonged deten- tion are procedurally similar to Section 1226(a) bond hearings ………………………… 32

III

Table of Contents—Continued:

Conclusion…………………………………………………………………33 Appendix…………………………………………………………………..1a

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This is an absolutely fantastic resource for anyone litigating, writing, speaking, or reporting on immigration detention written by two of the “best in the business.”

Rodriguez could be a problem for the Administration and the Immigration Courts. President Trump’s Executive Orders ramp up border enforcement, interior enforcement, immigration detention, and will further clog the already overwhelmed U.S. Immigration Courts.

If the Supreme Court places time limits on the Government’s ability to detain individuals without individual bond hearings pending the completion of Removal Hearings on the merits in Immigration Court, it could lead to an increase in the number of bond hearings conducted by U.S. Immigration Judges. Combined with pressure from the Administration to complete Removal Hearings before bond hearings are required, it likely will lead the Administration to “torque up” the pressure on Immigration Judges to cut corners and expedite hearings without regard to the requirements of due process. This is likely to force the issue of due process in Immigration Court into the Article III Federal Courts for resolution .

PWS

02/14/17

BREAKING: Judge Brinkema (EDVA) Issues Preliminary Injunction Against Parts Of Trump Travel Ban — Finds “National Security” A Pretext For Unconstitutional Religious Discrimination! (Updated With A Copy Of Judge Brinkema’s 22-Page Order, Courtesy Of Politico)

https://www.washingtonpost.com/local/public-safety/judge-in-virginia-grants-preliminary-injunction-against-travel-ban/2017/02/13/a6164bfe-f255-11e6-a9b0-ecee7ce475fc_story.html?utm_term=.99968d12d9cf

The Washington Post reports:

“The executive order, Judge Leonie M. Brinkema concluded, probably violates the First Amendment’s protections for freedom of religion.

Brinkema’s order applies only to Virginia residents and students, or employees of Virginia schools. A nationwide freeze has been in place for several days, having been issued in Washington state and upheld by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit.

In her opinion, Brinkema wrote that the Commonwealth of Virginia “has produced unrebutted evidence” that the order “was not motivated by rational national security concerns” but “religious prejudice” toward Muslims. She cited Trump’s statements before taking office, as well as an interview in which former New York City mayor Rudolph W. Giuliani (R) said that the president wanted a “Muslim ban.”

“The ‘Muslim Ban’ was a centerpiece of the president’s campaign for months, and the press release calling for it was still available on his website as of the day this Memorandum Opinion is being entered,” Brinkema wrote.

The case against the order in Virginia is being litigated by the state’s attorney general, Mark R. Herring (D). It was originally brought by lawyers for the Legal Aid Justice Center who were representing two Yemeni brothers turned away after landing at Dulles International Airport. The brothers have since been allowed into the country.

“I saw this unlawful, unconstitutional and unAmerican ban for what it is, and I’m glad the court did too,” Herring said Monday night. He said the decision “lays out in stunning detail the extent to which the Court finds this order to likely violate the First Amendment of the U.S. Constitution.”

Simon Sandoval-Moshenberg, an attorney for the brothers, Tareq and Ammar Aziz, said the judge was “calling out the ban for what it really is, a Muslim ban.”

The decision is significant, he noted, because a preliminary injunction requires a higher burden of proof than the temporary restraining order issued in Washington.

. . . .

Brinkema rejected that [the Government’s] argument. “Maximum power does not mean absolute power,” she wrote. “Every presidential action must still comply with the limits set by Congress’ delegation of power and the constraints of the Constitution, including the Bill of Rights.”

She also dismissed the idea that a halt on the ban would cause any harm. On the other hand, she said, the Commonwealth produced evidence that the ban is having a negative impact on students and faculty who can no longer leave the country for fear of losing their visas or who are no longer sure they can study in the state.

“Ironically, the only evidence in this record concerning national security indicates that the [order] may actually make the country less safe,” Brinkema wrote, a reference to a letter from a bipartisan group of national security professionals decrying the impact of the ban abroad.”

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Here is Judge Brinkema’s 22-page order granting the preliminary injunction issued yesterday, Feb. 13, 2017 in Aziz v. Trump. (courtesy of Politico).

http://www.politico.com/f/?id=0000015a-3a0e-d784-a5fb-3ebe82c60000

PWS

02/14/17

Morning Joe: “Stephen Miller’s weekend performance: That was horrendous and an embarrassment!” — Other Than That, He Loves The Guy!

https://www.washingtonpost.com/news/the-fix/wp/2017/02/13/joe-scarborough-is-trying-to-make-trump-turn-on-stephen-miller/?utm_term=.8c119ea36330

Callum Borchers Wirtes in “The Fix” in today’s Washington Post:

“Joe Scarborough is trying to use whatever influence he has over Donald Trump to change the president’s mind about Stephen Miller. It hasn’t worked so far.

The MSNBC host previously blamed Miller for mishandling the rollout of the travel ban and on Monday resumed his campaign against Trump’s senior policy adviser, who made a series of breathtakingly forceful statements on the Sunday political talk shows, including:

“Our opponents, the media and the whole world will soon see, as we begin to take further actions, that the powers of the president to protect our country are very substantial and will not be questioned.”
“Sean Spicer, as always, is a hundred percent correct.”
“It is a fact, and you will not deny it, that there are massive numbers of noncitizens in this country who are registered to vote.”

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The video clips on this one (see link) are truly amazing. Miller is the “Perfect Storm” of arrogance, ignorance, and intolerance all wrapped into a package of smart-ass, off-putting demeanor, lack of gravitas, and robotic delivery. Hopefully, they never let this guy into a courtroom. Or, perhaps they should . . . .

Come to think of it, I’d love to see him go “toe to toe” with Judge Richard Posner of the Seventh Circuit. Nothing Judge P loves better than being told “who’s in charge.” And, as for the “I’m from the White House come to tell you about your authority, you robed boob” tone, let’s just say it wouldn’t be pretty. On the other hand, couldn’t happen to a more deserving guy.

PWS

02/13/17

The Hill: N. Rappaport Predicts That Trump Will Have Slam Dunk Win If “Travel Ban” Case Gets To Supremes!

http://thehill.com/blogs/pundits-blog/immigration/319212-if-immigration-ban-goes-to-supreme-court-trump-is-is-shoo-in

“Two states challenged President Donald Trump’s executive order, Protecting the Nation from Foreign Terrorist Entry into the United States, in a U.S. District Court. The District Court preliminarily ruled in their favor and temporarily enjoined enforcement of the order.

The government appealed to the U.S. Court of Appeals for the Ninth Circuit and filed a motion for an emergency stay to reinstate the order while its appeal from the District Court’s decision proceeds.
The court denied the government’s motion because it was not convinced that the government is likely to prevail on the states’ due process claim when the case is adjudicated on its merits. The court reserved consideration, however, on the states’ religious discrimination claim until the merits of the appeal have been fully briefed.

I have found no merit in the States arguments in support of either of those claims.”

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

Read Nolan’s complete article at the link which gives his reasons for finding both the Due Process and Religious Discrimination Claims under the Constitution without merit. Additionally, Nolan wrote an earlier article in The Hill on February 8, 2017, which I inadvertently missed, expanding upon his views of the nature of Presidential authority in this area:

http://thehill.com/blogs/pundits-blog/immigration/318540-exactly-how-much-immigration-authority-does-trump-have-well

I doubt that this case will reach the Supremes in its current posture for four reasons: 1) the Court generally does not review cases at the TRO stage; 2) with only eight Justices and having split evenly on the last major challenge to Executive Power (involving the Obama Administrations so-called DAPA program) I doubt the Court wants to take this on right now; 3) at the TRO stage, the record is very sparse and the Court often looks through the record for some non-Constitutional basis to avoid sweeping rulings; 4) the Court has complete discretion as to whether to grant review in this situation and does not have to provide any reasons for denying review.

As to the merits, I doubt that the EO as currently drafted can pass constitutional muster. For example, as noted by the 9th Circuit panel, a returning lawful permanent resident alien is entitled to full due process under Supreme Court rulings. Whatever that might mean in the section 212(f) context, it has to involve, at a minimum, a hearing before a quasi- judicial official with some type of Article III judicial review. To the extent that Nolan suggests that the President himself can make such determinations or delegate them to non-quasi-judicial officials I disagree.

Also, someone coming to the U.S. with a positive overseas refugee determination would clearly be entitled to a fundamentally fair forum in which to make claims for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Indeed, anyone arriving in the United States has such a right.

I recognize the Sierra Leonian example cited by Nolan in his 02/08/17 article, and apparently that case was affirmed by the BIA and the 2d Circuit in unpublished decisions. However, it seems to me that under the CAT, a full due process hearing is required before returning individuals to a country where they might be tortured, even where that country has given “diplomatic assurances” that the individual will not be tortured. See Khouzam v. Attorney General, 549 F.3d 235 (3d Cir. 2008). I also doubt that withholding of removal, which can be granted to someone arriving at a land border after an order of removal has been entered, really is an “entry” under the INA.

These are just the most glaring examples of the lack of thought, judgement, and legal analysis that went into this ill-advised Executive Order. Haste makes waste. Bad cases make bad law, etc.

I’m inclined to believe, however, that it is likely that a carefully drafted and properly vetted Executive Order which applies only to individuals overseas who have never been admitted to the U.S., and which provides at least some type of “facially legitimate” factual basis to support it (and I don’t mean the idea that prior Congressional and Executive actions on the entirely different issue of whether an individual who was not from one of these countries, but who had visited one of these countries, could come in under a waiver of any visa vetting at all — “visa waiver”) would likely be upheld by the Court.

But, that’s probably not going to happen under this Administration. Indeed, President Trump is making the strongest possible case that our doctrine of separation of powers and the continued existence of our very constitutional republic will require, if anything, an even higher degree of judicial scrutiny of almost all Executive actions. A President who surrounds himself with such obviously unqualified individuals as Steve Bannon, Stephen Miller, and Mike Flynn shows just why the President’s judgement is not to be trusted — on this or almost anything else.

There is a reason why this issue hasn’t come up before in our history. It’s called wise and prudent Executive judgement. And, it’s sorely lacking in this Administration.

PWS

02/13/17

Health: Fear Is Harmful To Your Health — Deportation Anxiety!

https://www.washingtonpost.com/posteverything/wp/2017/02/10/living-in-fear-as-a-refugee-in-the-u-s-is-terrible-for-your-health/?hpid=hp_no-name_opinion-card-f%3Ahomepage%2Fstory&utm_term=.704d0ac8184d

From the Washington Post:

“The damage to the next generation may be compounded by other, less obvious assaults on their biology and psychology. Research by Rachel Yehuda and her colleagues at Mount Sinai Hospital in New York has demonstrated that the consequences of Holocaust survivors’ extreme trauma can be passed down to their children and grandchildren, making them exquisitely sensitive to the ordinary stresses of relatively safe lives. Yehuda and other researchers believe that these are “epigenetic” effects, modifications in the ways genes express themselves, which transmit vulnerabilities to stress from one generation to the next. Though the mechanisms are not completely understood, animal studies as well as those on human adults who were abused as children demonstrate similar changes.

“There is no short-term fix for this kind of damage,” Lori Kaplan commented sadly, thinking about the young people and their families who are anxiously calling her and her colleagues, reporting physical and emotional distress, looking for answers. “We’ve been dealing with the trauma of the immigrant experience for so long,” the flight from violence, the loneliness, the poverty, the struggle to survive in a strange land and the longing for home. “Obama was deporting people, sure, and there was anxiety, but he also gave us hope. And now the roof’s been blown off.”

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

PWS

02/11/17

Read The Feb. 2017 New Jersey Lawyer Dedicated To Immigration — Law You Can Use — Articles by the Hon. Dorothy Harbeck (Elizabeth Immigration Court) and Others!!

NJLFeb2017

Check out the Table of Contents:

FEATURES

Raising the Bar for Immigrant Representation in New Jersey 10

by Farrin Anello and Lori A. Nessel

A Step Toward Justice—Universal Representation
and Access to Counsel for New Jersey Immigrants 14

by Amy Gottlieb and Nicole Polley Miller

Naturalization, Jersey Style—
The Process, the Perks, and the Pitfalls 20

by Angie Garasia

Born as Equals and Subject to Lady Liberty 26

by Cesar Martin Estela

A View from the Bench—The Commonsense
of Direct and Cross-Examinations in Immigration Court 30

by Hon. Dorothy Harbeck

Immigration and Mental Health Forensics—
An Unexpected Interdisciplinary Connection 37

by Lauren Anselowitz and Daniel L. Weiss

Lessons Learned from the Trenches—Best Practices
for Immigration-related Federal Investigations 42

by Valentine Brown

Tips to Effectively Recruit, Retain and Terminate
Foreign Workers 46

by Scott R. Malyk and Anthony F. Siliato

Responding to the Child Migrant Crisis 54

by Joanne Gottesman, Anju Gupta, and Randi Mandelbaum

PWS

02/11/17

Know Your Rights Presentation with Professor Alberto Benitez and Chris Carr, JD ’17

https://vimeo.com/user9108723/review/203448069/ae155e4ae3

Professor Benitez and his students from the George Washington Law School Immigration Clinic have consistently made huge contributions to due process and the excellence of immigration practice at the Arlington Immigration Court. I highly recommend this educational video!!

PWS

02/11/17

Trump Mulls Travel Ban Options — Rewrite of Exec Order Possible — Might Forego Request For Supremes’ Intervention Now!

https://www.washingtonpost.com/world/national-security/white-house-considers-rewriting-trumps-immigration-order/2017/02/10/ddcf5a6a-efb5-11e6-b4ff-ac2cf509efe5_story.html?hpid=hp_rhp-top-table-main_trumpban-408pm%3Ahomepage%2Fstory&utm_term=.c2de193b26a6

From the Washington Post:

“President Trump said Friday that he is considering rewriting his executive order temporarily barring refugees and citizens of seven Muslim-majority countries from entering the country, indicating that the administration may try to quickly restore some aspects of the now-frozen travel ban or replace it with other measures.

Trump told reporters aboard Air Force One that he would probably wait until Monday or Tuesday to take any action, and White House Chief of Staff Reince Priebus said several options — including taking the case to the Supreme Court — were still on the table.

Trump hinted that the ongoing legal wrangling might move too slowly for his taste, though he thought he would ultimately prevail in court.”

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

Many commentators have suggested that the Administration could have avoided most of the constitutional issues that have bothered the courts by simply making the order applicable solely to those abroad who have not been admitted to the U.S. as refugees or with visas.

The Solicitor General’s Office at the DOJ (even though there is no appointed “SG” for now, there are plenty of career “Supreme Court pros” on the staff) doesn’t like to “look bad” before the Supreme Court. Normally, the Solicitor General must approve and sign off on all Government filings before the Supreme Court. It’s possible that the SG’s Office thinks that the Administration’s case is unlikely to prevail in its current posture, and is therefore trying to persuade the Administration not to file for Supreme Court review right now.

PWS

02/10/17

Increased “Raids” And Removals Likely To Be The “New Norm” Under Trump Enforcement Policies

http://www.ksbw.com/article/are-immigration-raids-result-of-trump-policy/8730502

The AP reports:

“Advocacy groups claim that Immigration and Customs Enforcement officers are rounding up people in large numbers around the country as part of stepped-up enforcement under President Donald Trump. They have cited immigration action in Southern California that they believe is especially heavy-handed.
The government says it’s simply enforcing the laws and conducting routine enforcement targeting immigrants in the country illegally with criminal records.

The truth lies somewhere in between. Here are some of the facts surrounding what’s happening with immigration enforcement:”

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

Read the full story at the link. President Trump seems destined to “dethrone” President Obama as the “Deporter in Chief.”

PWS

02/10/17

Matt Zapotsky in WashPost: “7 key take-aways from the court’s ruling on Trump’s immigration order”

https://www.washingtonpost.com/news/post-nation/wp/2017/02/09/7-key-takeaways-from-the-courts-ruling-on-trumps-immigration-order/?hpid=hp_rhp-top-table-main_trumpban-takeaways-930pm%3Ahomepage%2Fstory&utm_term=.64ae82747f5

PWS

02/10/17

BREAKING: 9th Circuit Panel Unanimously Reject’s Administration’s Request For Stay Of Travel Ban — Read The Complete Decision Here!

Read-the-9th-Circuit-s-opinion-on-the-travel-ban

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

I think it will be hard for the Administration to prevail at this stage. I’d be surprised if either the full (“en banc”) 9th Circuit or the Supreme Court want to get involved at the TRO stage.

President Trump Tweets “See You In Court.” (Hasn’t that line been used before?) But, as indicated above, I’m not sure that the Supreme Court (particularly with only 8 Justices) will want to intervene at this point. The Supremes did take the Obama Immigration Executive Order case at a preliminary stage; but they were unable to resolve it on the merits, affirming the lower court’s injunction by an evenly divided Court. Not clear why the Court would be in a better position to resolve this one. But, we’ll find out shortly.

PWS

02/09/17

The Sessions Era Begins At The USDOJ

https://www.washingtonpost.com/blogs/plum-line/wp/2017/02/09/jeff-sessions-is-now-the-attorney-general-here-are-the-four-biggest-things-to-fear/

Greg Sargent writes in The Morning Plum in today’s Washington Post:

“Jeff Sessions has now been confirmed as attorney general, and this vaults him to a position in American life that is unique. Perhaps more than any other person, Sessions stands at the nexus of many of the potential plot lines that we should fear most about the Donald Trump presidency.

Here are the possibilities we need to worry about. President Trump’s refusal to divest from his business holdings creates the possibility of untold conflicts of interest and even full-blown corruption on an unprecedented scale. The hostility of Trump and Republicans to a full, independent probe into Russian meddling in the election may mean there will never be a full public accounting of what happened, which could make a repeat more likely.
Trump’s year of lies about voter fraud, and his campaign vows of explicit persecution of minorities, could signal further voter suppression efforts, weakened civil rights protections, and the use of state power against Muslims and undocumented immigrants in draconian or discriminatory ways. Trump’s well-documented authoritarian impulses could conceivably tip him into genuine authoritarian rule, in which, for instance, the power of the state is turned against critics or political opponents.

Sessions is now in a unique position to facilitate and enable — or, by contrast, to act as a legal check on — some or all of these possibilities, should they metastasize (or metastasize further) into serious threats to vulnerable minorities or, more broadly, to our democracy. Here are the things to fear:

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You can read the full article at the link. Although noting Session’s involvement with immigration, Sargent overlooks what is likely to be AG Session’s biggest legacy, for better or, as many expect, for worse. That is his unilateral control over the United States Immigration Courts, perhaps America’s largest and most important Federal Court System, with 530,000+ pending cases, and hundreds of thousands (if not millions) about to be pushed into the already clogged “pipeline” under President Trump’s Executive Orders on immigration enforcement. Unlike most administrative courts within the Executive Branch, the Immigration Court not only has authority to order what in many cases can be indefinite “civil detention” but also to impose permanent exile on individuals (and, as a de facto matter on their U.S. citizen families), including some who were legally admitted to the United States and have resided here many years with “green cards.” Even in the area of criminal law, few judges in any system possess comparable authority to permanently affect the lives of so many individuals, their families, and their communities.

PWS

02/09/17

Undocumented Residents Are Part Of The Fabric Of Our Nation’s Capital

https://www.washingtonpost.com/local/in-trumps-capital-undocumented-immigrants-live-and-work-in-the-shadow-of-the-white-house/2017/02/07/ed837844-e8d3-11e6-b82f-687d6e6a3e7c_story.html

Theresa Vargas and Steve Hendrix write in today’s Washington Post:

“Monroy is now working toward a master’s degree in international education. She is also the director of education at the Family Place, a service organization that offers literacy classes for adult immigrants, many of whom have no more than a third-grade education. She credits DACA with giving her that freedom to thrive and help others.

“A lot of fear I had before was taken away,” she said.

She hopes Trump will continue to honor the policy, but said if he revokes it, she is less worried about herself than others. Every day she sees women who come from places where gangs have taken their homes and tried to recruit their children. Women who fear not just instability, but losing loved ones, if they are forced to leave the United States. It is why in recent weeks she has attended protests at the White House and in front of the Trump hotel, adding her slight frame to the swelling crowds.

“I’ve told my friends if I have to go down with a fight, it will be a glamorous fight,” she said.”

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

Read the full front-page story at the link.

PWS

02/09/17

Sessions Confirmed As AG On Party Line Vote Following Contentious Process — Sen. Warren (D-MA) Silenced By GOP!

https://www.washingtonpost.com/powerpost/amid-deep-partisan-rancor-a-sharply-divided-senate-barrels-toward-sessions-vote/2017/02/08/d848d4fa-ee15-11e6-b4ff-ac2cf509efe5_story.html?utm_term=.b888cc34bb55

“A sharply divided Senate confirmed President Trump’s nominee for attorney general Wednesday, capping an ugly partisan fight and revealing how deep the discord has grown between Republicans and Democrats at the dawn of Trump’s presidency.

The day after an unusually tense conflict on the Senate floor, the chamber voted 52 to 47 on Wednesday evening to clear Sen. Jeff Sessions (R-Ala.), whose record on civil and voting rights as a federal prosecutor and state attorney general has long been criticized. Sessions won confirmation almost exclusively along party lines. Sen. Joe Manchin III (W.Va.) was the only Democrat who supported him, and no Republican voted against him. Sessions voted present.

In remarks after his confirmation, Sessions mentioned the “heated debate” surrounding him and said he hoped “the intensity of the last few weeks” would give way to better relations in the Senate.”

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

PWS

02/08/17

WashPost: The Fix: Trump Threatens Third Branch!

https://www.washingtonpost.com/news/the-fix/wp/2017/02/08/president-trump-is-not-so-subtly-threatening-the-american-court-system/?hpid=hp_rhp-top-table-main_trumphearing-1230pm:homepage/story&utm_term=.889ea4d1df98

Aaron Blake writes in the Washington Post:

“In a speech to law enforcement officials, Feb. 8, President Trump read federal law giving broad him broad authority to set immigration restrictions, adding, “a bad high school student would understand this.” (The Washington Post)

The 9th Circuit Court of Appeals is now weighing what to do with President Trump’s travel ban. And Trump did his best Wednesday to put his finger on the scales of justice.

Continuing a highly unusual days-long effort by a president, Trump issued a stark warning to the three-judge panel and, really, the entire court system: Run afoul of me, and you may just pay a price.

In a speech in front of law enforcement in Washington, Trump suggested to the three-judge panel that they would marginalize themselves politically if they decide the wrong way. Trump has said similar things about the judge who previously halted his travel ban — albeit after the decision had come down.

The comments were oblique, but Trump’s point was crystal clear.

“If these judges wanted to help the court in terms of respect for the court, they’d do what they should be doing,” Trump said, in a comment thick with subtext. “It’s so sad.”

He added: “I don’t ever want to call a court biased, so I won’t call it biased. But courts seem to be so political, and it would be so great for our justice system if they would read [the law] and do what’s right.”

If that isn’t a threat to marshal support against the American court system and fight it politically, I’m not sure what is. Trump is basically saying: That’s a nice reputation you’ve got there. It’d be a shame if something happened to it.”

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

So, if this is the contemptuous and disrespectful way Trump treats the Article III Courts, what does that say about the chances for fairness and due process in the U.S. Immigration Court System, where all the U.S. Immigration Judges and the Appellate Immigration Judges on the Board of Immigration Appeals work directly for Trump’s friend and enthusiastic supporter, Attorney General Jeff Sessions, a well-established “immigration hard liner” who is reputed to be the “inspiration” behind Trump’s immigration enforcement program.

How long will an Immigration Judge who rules in favor of an individual who is one of Trump’s “removal priorities” or an Appellate Immigration Judge who speaks out in favor of due process in the face of Trump’s “move ’em all out” Executive Orders remain on the bench. Not long, I suspect. Is Attorney General Jeff Sessions really going to stand up for and protect a conscientious Immigration Judge who in good faith attempts to follow the law even when it conflicts with Trump’s edicts? Not likely.

The only question probably will be whether Article III Judges will stand up to Trump’s bullying and excesses and force Constitutional due process back into the system after Trump and Sessions drain it out. So far, the Article III Judiciary seems to be almost as unfazed by Trump’s bulling and threats as, say, the cast of SNL. But, it’s early in the game. And even Article III Judges eventually might find that they have to pick their fights. Will the due process rights of foreign nationals be one of them? Only time will tell. Stay tuned.

PWS

02/08/17

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