"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Here they are:
When the rule of law disappears, courts fail, and institutions disintegrate, bad things happen.
PWS
06-10-20
https://www.washingtonpost.com/opinions/2020/06/09/so-this-is-why-bill-barr-is-such-bully/
Milbank writes in WashPost:
Police in Buffalo shove a 75-year-old man to the ground and blood pours from his ear. Police in Brooklyn knock down a young woman and call her a “bitch” because she asked why she had to leave the street. Federal authorities in Washington fire tear gas at peaceful demonstrators, then lie about it.
Get the feeling law enforcement in this country is being run by a middle-school bully?
If so, you are not wrong.
Childhood bullies have a predisposition to become adult bullies, research shows, and, sure enough, it seems Attorney General William Barr was a teenage bully more than 50 years ago.
Back in 1991, during Barr’s confirmation to be George H.W. Bush’s attorney general, lawyer Jimmy Lohman, who overlapped with Barr at New York’s Horace Mann School and later Columbia University, wrote a piece for the little-known Florida Flambeau newspaper about Barr being “my very own high-school tormentor” — a “classic bully” and “power abuser” in the 1960s who “put the crunch on me every chance [he] got.”
Nobody noticed the Flambeau piece at the time, but Lohman posted it on Facebook when President Trump nominated Barr in 2018, and it took on “a life of its own,” Lohman told me Tuesday from Austin, where Post researcher Alice Crites tracked him down. The article resurfaces in social media each time Barr does something unconscionable — which is often.
The 1991 description of 1963 Barr’s harassment sounds eerily like the 2020 Barr. He “lived to make me miserable,” with a “vicious fixation on my little Jewish ‘commie’ ass,” Lohman alleged, because he wore peace and racial-equality pins. He said the four Barr brothers picketed the school’s “Junior Carnival” because proceeds went to the NAACP, and he alleged that Billy Barr, the “most fanatic rightist” of the four, later “teamed with the New York City riot police to attack anti-war protesters and ‘long hairs.’ ”
The 1991 article says Barr, a “sadistic kid,” has “come a long way from terrorizing seventh graders just because they wore racial equality buttons.” The Justice Department didn’t respond to my request for comment.
Lohman’s account is consistent with Marie Brenner’s reporting for Vanity Fair: “A few who knew the Barr boys came to call them ‘the bully Barrs’; the siblings, these former classmates claimed, could be intimidating.” A petition from Horace Mann alumni asks the school to “rethink” an award for Barr, who “violated our school’s Core Values of Mutual Respect and Mature Behavior.”
Historian Paul Cronin, in Politico this week, says Barr was part of the “Majority Coalition” at Columbia that fought antiwar demonstrators. Barr had told the New York Times Magazine he was part of a “fistfight” in which “over a dozen people went to the hospital.” Cronin noted: “There appears to be no record of any trip to the hospital.”
Now Barr exaggerates violence on a grand scale. After he directed the forceful eviction of peaceful demonstrators from Lafayette Square, he claimed to Fox News on Monday that the image of peaceful demonstrators was “miscreated” to ignore “all the violence that was happening preceding that.” He alleged that there were two “bottles thrown at me” when he surveyed the scene; footage showed him at a safe distance. He charged that previously “things were so bad that the Secret Service recommended that the president go down to the bunker”; Trump claimed it was merely a bunker “inspection.”
. . . .
*******************
Read the rest of Dana’s article at the link.
Sadistic kid grows up to be racist bully, becomes Attorney General, institutes thugocracy, perverts justice, enabled by courts who look the other way. Wow! What a “great American success story.”
What’s the purpose of an independent life-tenured judiciary that lacks the courage, integrity, and commitment to our Constitution to hold Barr accountable for his attacks on truth, the rule of law, and human decency?
The road from Buffalo, Minneapolis, and Lafayette Park leads directly to the Supremes’ failure of legal and moral leadership. “Equal justice for all” will never become a reality until we get a Supremes’ majority that actually believes in it and has the guts to make it happen! When judges will neither admit nor engage the problem, they are the problem!
Better judges for a better, fairer, more equal America!
PWS
06-10-20
https://www.scotusblog.com/2020/06/court-grants-immigration-case/
Amy Howe reports for SCOTUS Blog:
Court grants immigration case
This morning the Supreme Court issued orders from the justices’ private conference last week. The court added one new case to its merits docket for the term that begins in October. The justices once again did not act on two groups of high-profile petitions – one involving gun rights and the other involving qualified immunity – that they considered last week.
With the grant in Niz-Chavez v. Barr, the justices added another immigration case to their docket for next term. At issue in the case is the kind of notice that the government must provide to trigger the “stop-time rule,” which stops noncitizens from accruing the time in the United States that they need to become eligible for discretionary relief from deportation. Congress passed the “stop-time rule” to keep noncitizens from taking advantage of lengthy delays in deportation proceedings to continue to accrue time. Under the rule, a noncitizen’s time in the United States, for purposes of relief from deportation, ends when the government sends him a “notice to appear” containing specific information about a scheduled removal proceeding. The question that the justices agreed to decide today is whether all the necessary information must be provided in a single document in order to trigger the stop-time rule, as Agusto Niz-Chavez, who came to the United States from Guatemala in 2005, contends, or whether the government can trigger the rule by providing the information in multiple documents.
************************
Our Round Table has filed amicus briefs on this issue in a number of similar cases, although not in this particular case, which originated in the 6th Circuit.
At issue here is the BIA’s precedent in Matter of Mendoza-Hernandez, 27 I. & N. Dec. 520 (BIA 2019). There, in a now-rare en banc decision, the BIA majority basically “flicked off” the Supremes’ decision in Pereira v. INS, 138 S. Ct. 2105 (2018) and allowed the DHS to remedy a defective statutory Notice to Appear (“NTA”) with a later-issued EOIR notice of hearing providing the missing information to “fill in the blanks” from the original defective notice.
In an even more unusual and potentially career-shortening move, six of the BIA’s then 15 Appellate Immigration Judges filed a strongly-worded dissent accusing their majority colleagues of ignoring both the words of the statute and the Court’s Pereira decision. Perhaps not surprisingly, three of the dissenting judges have since retired from the BIA and a fourth, the Vice Chair, was passed over for Acting Chair in a highly unusual personnel move by the DOJ, which controls the BIA. (One of the primary reasons for having a designated “Vice Chair” is to be the “Acting Chair” in the absence of the Chairman.) In their places, Barr has appointed some of the most notorious hard-line asylum denying Immigration Judges in the nation.
The Supremes have thus far tiptoed around the glaring unconstitutionality of a so-called “appellate tribunal” that is appointed, wholly controlled by, and answers to the chief prosecutor, the Attorney General. Not surprisingly, upon discovering the Constitution-nullifying power of a “captive court system,” that is not a court at all under any common understanding of the term, the Administration has leveraged it to the max as a tool for their White Nationalist anti-immigrant agenda. Indeed, all the recent BIA and Attorney General precedents have ruled in favor of the DHS position, even where statutory language, Article III court rulings, prior precedents, and common sense strongly supported the opposite results.
And, many Courts of Appeals have continued to fictionalize that the highly politicized and “weaponized” BIA is an “expert tribunal” entitled to “Chevron deference.” Any true immigration law expert would say that proposition is absurd. Yet, it conveniently furthers the causes of both “judicial task avoidance” and the White Nationalist agenda of the Administration.
Because the BIA now occupies itself not with fair and impartial, expert decision-making, but mostly with keeping the “deportation express” running and insuring that DHS prevails over the legal claims of migrants and asylum seekers to fair and humane treatment under the law, the Supremes are finding themselves in the middle of the “statutory and regulatory nitty gritty” of immigration law that was supposed to be the province of a competent and impartial BIA.
While that has occasionally, as in Pereira, worked to the advantage of individuals seeking justice, for the most part, the Supremes have been willing enforcers of the Administration’s abrogation of immigration laws without Congressional participation and “Dred Scottification” of “the other” in violation of our Constitution, and indeed, in violation of both international conventions and fundamental human decency.
Think of how much better and more efficiently the immigration system could run with a constitutionally-required independent Immigration Court utilizing fair and impartial judges selected on the basis of expertise and reputation for fairness and scholarship rather than commitment to DHS enforcement goals. Think of how much better off our society would be if the Supremes stood up for equal justice for all, rather than enabling a far-right would-be authoritarian scofflaw regime following a racially-biased agenda of dehumanization, degradation, and deportation.
PWS
06-08-20
Paul Moses and Tim Healy report for The Daily Beast:
‘The Bizarro-World’ Immigration Courts Where the Constitution Isn’t Applied Detainees can be held for weeks or months before seeing a judge. The Justice Department gave “the word of the agency under penalty of perjury” that it would fix that—but only in NY
· ICE officials acknowledged that they couldn’t handle the volume of arrests their own agents made; the major clog was in getting a legal review from the agency’s understaffed legal unit.
· In 11 of the 55 venues that heard more than 500 cases last year, detainees spent six weeks or more in jail before an initial hearing. Such long waits would be unconstitutional in criminal cases; the right to due process requires authorities to not only get a case filed but also to provide an arraignment promptly, generally in no more than 48 hours.
· Among the 55 venues that handled 500 or more detainee cases last year, the longest waits from arrest to initial hearing were in hearing locations at privately run lockups under contract with ICE: Winn Correctional Center in Winnifield, Louisiana, a median of 140 days; T. Don Hutto Residential Center in Taylor, Texas, 72 days; Richwood Correctional Center in Richwood, Louisiana, 64 days…
**********************
Ironically, by his own overt corruption and open disdain for our Constitution and the rule of law, Trump has exposed the deep flaws, grotesque derelictions of duty, and unethical complicity throughout our Constitutional institutions that are supposed to protect all of us, particularly the most vulnerable among us like civil immigration detainees and asylum seekers, from abuses by would-be authoritarian tyrants like Trump!
Here’s a gem:
“The larger question behind this mass of numbers is why DHS is detaining so many people when both its legal office and the court lack the staffing—not only judges but support staff as well—to handle them.
‘I would just say, they are the prosecuting agency and in this context, they have complete control over the timeline,’ said Aaron Hall, an immigration lawyer who practices at the court in Aurora, Colorado, which has had substantial delays. ‘If the charging document isn’t ready to go, why are they arresting them?’”
Good question! But don’t expect a straight answer from the “malicious incompetents” at DHS. Nor will today get anything except misleading nonsense from their “partners” at EOIR (“ICE Jr.”).
DOJ was forewarned of this disaster by an independent consultant back in 2017. But, rather than solving the problem, then AG Jeff “Gonzo Apocalypto” Sessions intentionally made things even worse at EOIR. You might remember “Gonzo” as the “mastermind” behind the regime’s unconstitutional child separation policy. His victims were returned to abuse, scarred for life, or imprisoned for the “crime” of asserting their Constitutional and legal rights to fair treatment.
All of this is wrong, plain and simple! It’s part of “Dred Scotiffication” — now playing out across our nation in many ways. Finally, the systematic “dehumanization of the other” as aided, abetted, and actually encouraged by a majority of the Supremes, is getting some much-needed and long overdue “pushback.”
But the abuses of our Constitution and our values, and the unaccountability of corrupt public officials, present and former, of the Trump immigration kakistocracy, won’t cease until we get “regime change.” That requires substantial personnel and attitude changes across all three branches of our reeling Federal Government! And that definitely includes accountability for those who have failed to insure “equal justice for all” and instead permitted and sometimes aided and abetted the existence of “Constitution-Free Zones” right under their noses!
PWS
6-04-20
INTEREST OF AMICI CURIAE1
Amici curiae have served as Immigration Judges and as members of the Board of Immigration Appeals (“BIA”). Amici are invested in the resolution of this case because they have dedicated their careers to improving tghe fairness and
2
efficiency of the U.S. immigration system. Through their centuries-long collective experience, amici have adjudicated hundreds—if not thousands—of immigration detention hearings. Amici have substantial knowledge of immigration detention issues, including the practical impact of the burden of proof in such hearings.
INTRODUCTION AND ARGUMENT SUMMARY
Under the Fifth Amendment, “[n]o person” shall “be deprived of … liberty … without due process of law[.]” U.S. Const. amend. V. The “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). This liberty is so fundamental that the law tolerates its restraint only in limited circumstances.
1
Amici are invested in the resolution of
2
efficiency of the U.S. immigration system. Through their centuries-long collective experience, amici have adjudicated hundreds—if not thousands—of immigration detention hearings. Amici have substantial knowledge of immigration detention issues, including the practical impact of the burden of proof in such hearings.
INTRODUCTION AND ARGUMENT SUMMARY
Under the Fifth Amendment, “[n]o person” shall “be deprived of … liberty … without due process of law[.]” U.S. Const. amend. V. The “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). This liberty is so fundamental that the law tolerates its restraint only in limited circumstances.
1
Amici are invested in the resolution of this case because they have dedicated their careers to improving the fairness and
Board of Immigration Appeals (“BIA”).
Amici have filed substantially similar briefs in other cases involving burden of proof issues in proceedings under 8 U.S.C. § 1226(a). Here, no party or party’s counsel authored this brief in whole or in part, nor contributed money to preparing or submitting this brief. Only amici or their counsel contributed money to prepare or submit this brief. The parties have consented to the filing of this brief.
2
A complete list of amici is included in this brief’s addendum.
Case 19-3220, Document 116, 06/03/2020, 2854056, Page13 of 56
Such restraint violates the Due Process Clause “unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow nonpunitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690. Yet, federal law provides far greater protections to criminal defendants than it does to noncitizens in civil proceedings—even though the distinctions between criminal and non-criminal proceedings mean very little to a person sitting behind bars.
Accordingly, noncitizens already face significant hurdles in detention proceedings brought under 8 U.S.C. § 1226(a). At issue in this appeal is whether another, even higher and more fundamental, barrier to due process can be erected in this Circuit: do noncitizens bear the burden of justifying their freedom from detention? For noncitizens, the answer to this question is no mere technicality—it can mean the difference between freedom and confinement. This burden’s allocation, therefore, “reflects the value society places on individual liberty.” Addington v. Texas, 441 U.S. 418, 425 (1979).
Given their collective experience in adjudicating immigration bond hearings, amici are particularly well-suited to address the monumental question in this case. To that end, amici wish to share the following observations for this Court’s benefit:
-2-
Case 19-3220, Document 116, 06/03/2020, 2854056, Page14 of 56
First, noncitizens already enjoy fewer procedural protections than criminal defendants. We contrast the procedural rules for detaining criminal defendants and noncitizens to underscore the challenges that noncitizens face in immigration bond hearings, and to highlight the need for a presumption against detention as one of the last remaining bulwarks to protect noncitizens’ liberty.
Second, detention of noncitizens consumes the government’s already- limited administrative and judicial resources. Amici highlight the staggering costs that are associated with immigration detention, as well as the strain on immigration courts resulting from the unnecessary detention of noncitizens.
Third, contrary to the government’s position, placing the burden of proof on the government would not generate fiscal or administrative hardship. Amici advance that position with confidence because the government previously shouldered that exact burden over a fifteen-year period. Several of the amici served as Immigration Judges within that period and found that this older system did not cause additional costs or administrative hurdles.
Fourth, in amici’s experience, detaining noncitizens actually increases the burden on the immigration court system. While in detention, noncitizens face significant challenges in adequately preparing their cases. Further, the Executive Branch now utilizes “performance metrics” to encourage Immigration Judges to accelerate the fact-finding process in detention proceedings. With less time for
-3-
Case 19-3220, Document 116, 06/03/2020, 2854056, Page15 of 56
individualized fact-finding, noncitizens will have even less opportunity to marshal the facts needed to satisfy the burden to avoid detention. Reallocating the burden of proof in immigration bond hearings, therefore, would reduce costs.
Fifth, and finally, amici offer alternatives to noncitizen detention that would inject much-needed resources to the immigration court system. The government’s aversion to such alternatives rest on a single statistic suggesting that the vast majority of noncitizens abscond upon release on bond. That statistic, however, is misleading and inconsistent with other available data, and bears little resemblance to the reality that amici encountered in years of adjudicating immigration cases.
Together, these observations should lead this Court to conclude that due process requires the government to make some sort of individualized showing before it may place noncitizens under lock and key.
. . . .
Read the full brief here: AS FILED No. 19-3220 Amici Br. Padilla Raudales v. Decker (2d Cir.)
*****************************
Thanks again not only to the signatory members of our Round Table, but especially to CHRISTOPHER T. CASAMASSIMA, SOUVIK SAHA, and the other members of their pro bono team over at WILMER HALE. Without assistance like yours, the “Voices of the Round Table” would not be heard in support of justice in so many cases throughout our nation!
PWS
06-04-20
https://trac.syr.edu/immigration/reports/611/
|
. . . .
**************
Read the rest of TRAC’s report at the link.
EOIR isn’t willing and able to do its only function: provide fair, impartial, and timely adjudications to asylum seekers and other migrants while following best judicial practices.
But they do have time to waste taxpayers’ money on nonsense like the chart at this link: https://www.justice.gov/eoir/file/1217001/download. This was obviously designed to further the Trump regime’s false narrative regarding the merits of asylum claims. While the chart is largely incomprehensible, misleading nonsense, what stands out is this:
At the end of an abusive process during which the law has been illegally skewed against asylum seekers and “judges,” most of whom are not experts in asylum law and who have never even represented an asylum seeker, are encouraged to deny meritorious claims for protection, against the odds, over 25% (12 of 47) of those who actually get through this biased dysfunctional mess still get asylum!
It’s reasonable to believe that under a fair system, with impartial decision makers who have expertise in asylum law, and without the interference of biased, overtly anti-asylum politicos like Sessions and Barr, asylum seekers would succeed the majority of the time, as they did before efforts by both the Obama and Trump Administrations to “ratchet down” asylum grants so that the EOIR system would serve DHS Enforcement as a “deterrent” to those seeking protection.
Obviously, the DOJ is afraid that under a fair, independent judicial system that actually employed judges who were experts in asylum law and who had real life experience representing asylum applicants, the majority of claims would be granted, thereby exposing the fraud, dishonesty, and misconduct involved in the present anti-asylum system.
It’s a national disgrace that is actually harming and sometimes killing those deserving of protection under our law.
PWS
06-04-20
https://apple.news/A7DwtaicORlSZg-2eIijU5g
Jeremy Raff reports for The Atlantic:
On a Friday afternoon in mid-April, Gladys Vega received a disturbing message: A woman hospitalized with COVID-19 needed food for the 11-year-old daughter she’d left at home. Worried that the girl would go hungry, Vega rushed out of her office and into the tangle of downtown Chelsea, Massachusetts, a 1.8-square-mile city across the Mystic River from Boston. The 52-year-old Vega, wearing a black tracksuit, a highlighter-yellow T-shirt, and a little bit of matching eye glitter, jumped out of the car so quickly, I could barely keep up. She approached a narrow brick apartment building and asked the people on the stoop to open the front door. “You don’t have to worry; I’m not immigration,” Vega said in Spanish. “Let me in.”
Vega was accustomed to convincing fearful Chelsea residents to trust her. More and more restrictive federal immigration measures had motivated some locals—day laborers, food-factory workers, janitors, and other employees now deemed“essential”—to leave as few traces of their presence as possible: using P.O. boxes instead of their own mailboxes at home, and steering clear of public buildings where Immigration and Customs Enforcement had made arrests.
In late February, new Trump-administration regulations took effect that radically expand whom immigration officials judge to be a “public charge”—permanently dependent on government aid—and thus ineligible for a green card. The rules allow officials to deny green-card applicants if they have used food stamps, Medicaid, housing assistance, or other safety-net programs that were previously exempt from consideration.
Vega, the executive director of a social-justice organization called the Chelsea Collaborative, believes that these measures have made it more difficult for immigrants to get the care and support they need to stop the spread of COVID-19. Out of fear of triggering the new public-charge rule, immigrants in Chelsea have been disenrolling from public services, worsening the overcrowding, food insecurity, and poor access to health care that make the area so vulnerable to the coronavirus.
By mid-April, the infection rate in Chelsea was six times higher than the state average, comparable to the rate in the hardest-hit boroughs of New York City. With the support of local officials, Vega is trying to use the credibility she’s earned over decades of fighting slumlords, predatory bosses, and scammers to persuade the hardest-hit families to use a makeshift social safety net—and to go to the hospital despite their fear that doing so will be weaponized against them later.
“Because they’re afraid of their status,” Vega said, “they will not speak up.”
The message about the girl in need of food, Vega learned, was outdated: Her mother had returned home earlier that day, after spending a week in the hospital. Still wheezing, the woman stood in the doorway wearing pajama pants, a gray overcoat, and a surgical mask. She told me she had deferred care for two weeks, and went to the hospital only when she could no longer breathe. Vega had prepared a box of bread, corn flour, beans, cookies, cooking oil, and milk. “God bless you,” the woman said. One floor below, several families who appeared sick were crammed into a handful of rooms. Vega gave them a box too.
Forty-two years ago, in the midst of the blizzard of 1978, Vega’s parents moved her from a farm in Puerto Rico to their own cramped apartment in Chelsea. The city, the climate, the language—it was “a nightmare,” she told me.
Her cousins in town spoke only English, so she became close with the other Spanish-speaking kids in school—mostly children who had fled the Central American civil wars of the 1980s with their families. Vega came to understand that her classmates didn’t see parents or relatives left behind for years at a time, because of immigration restrictions. “My passion for organizing came from those classrooms,” she said. By seventh grade, Vega was protesting cuts to bilingual education with a 700-student walkout she’d organized.
The newly formed Chelsea Collaborative hired her as a receptionist in 1990, when she was 21. From the beginning, she was a troublemaker. “I liked to challenge the status quo,” she told me. She set about trying to “manage up,” and to persuade her boss, the executive director, to put Latinos on the board. Her playbook: She’d gently inquire about a retirement party for a current board member. Then she’d line up a replacement, drop hints about all the funding her new pick could bring in, and order a plaque for the presumptive retiree. She tried to make it effortless for her boss to take her advice. “That’s how I moved out all of these older white men,” she said with a laugh.
Vega witnessed the first major wave of immigrant disenrollment from safety-net programs when Congress passed the Clinton administration’s welfare-reform law in 1996. The legislation, along with an immigration bill passed the following month, restricted green-card holders from using some federal benefits during their first five years in the country. Vega was working as a community organizer for the Chelsea Collaborative by then, holding large meetings at the Saint Rose of Lima Catholic church, where she was connecting immigrants with employment and educational opportunities. After the new laws passed, Vega recalled, immigrants felt that “to take any public assistance, you needed to bleed for [the government] to trust you. It was similar to what is happening now in terms of public charge.”
[Read: ‘We are like sitting ducks’]
Around the same time that Vega was organizing at Saint Rose, Michael Fix, who is now a senior fellow at the nonpartisan Migration Policy Institute, received a sheaf of data from public-health officials in Los Angeles County that showed just how many noncitizens used public benefits before and after the laws took effect. The impact was apparent immediately, he recalled when we spoke. “I thought, Holy hell, what’s going on here?” Immigrant participation in health services had dropped sharply even among those who technically still qualified. Refugees, for instance, were unaffected by the new rules, but their participation in Medicaid fell 39 percent.
Fix and other researchers began to study these spillover consequences, concluding that they represented a chilling effect. Even immigration authorities were worried, especially about what the chilling effect would mean for public health. “Growing confusion is creating significant, negative public health consequences across the country,” the Immigration and Naturalization Service, which granted green cards at the time, wrote in 1999. “This situation is becoming particularly acute with respect to … the treatment of communicable diseases.”
Last summer, as the Trump administration’s beefed-up version of the public-charge rule sped toward approval, doctors and social workers at Massachusetts General Hospital’s clinic in Chelsea contacted Vega because they were concerned that immigrants were avoiding health care. The chilling effect was at work again. She brought clinic representatives to a street fair at Saint Rose full of food stalls and kids playing games on a warm evening. They walked around greeting attendees. “Please come back to MGH Chelsea,” Vega recalled the providers saying. “We miss you as patients.”
The expansion of the public-charge rule, Fix told me, is best understood as a way to favor affluent immigrants without having to go through Congress—a major victory for immigration hard-liners. According to an estimate by the liberal Center on Budget and Policy Priorities, the new standards are so restrictive that if they were applied to everyone in the United States, up to half of all Americans could be deemed a public charge and thus not qualify to settle in the country.
The current chilling effect has not been measured. But Tiffany Joseph, a sociologist at Northeastern University who studies health access in Boston’s immigrant neighborhoods, told me, “You should not underestimate how much the fear of ICE raids and the public-charge rule worsened the pandemic in Chelsea.”
Jessica Zeidman, a primary-care doctor at MGH Chelsea, told me that she saw disenrollment continue to intensify in the months before the pandemic hit. In December, for instance, a newly pregnant patient ended a checkup with a goodbye: She told Zeidman that she wouldn’t be seeing her anymore, for fear of triggering the rule, which would go into effect two months later. Zeidman tried to persuade her not to withdraw from WIC, the federal nutrition program for women, infants, and children, because the new restrictions wouldn’t apply to pregnant women.
“Most of the patients I have that have talked about disenrolling are not even actually affected by the rule; they just think they are,” Zeidman told me. “Part of its power is [that] it affects many, many more people than it’s actually written to affect.”
Around the same time, another one of her patients, a man in his 50s, opted to remove his name from a public-housing waiting list, even though he was eligible for the benefit, because he was afraid of somehow triggering the rule and preventing other family members from obtaining green cards. As the pandemic spread, Zeidman wondered whether he was still stuck in overcrowded housing, risking infection By early April, immigrant patients showed signs of serious illness, after waiting as long as possible to seek care, Zeidman said. Almost all of them had labored breathing and a high fever.
“We’re reaping what we’ve sown,” she said.
. . . .
*************************************
Read the rest of the article at the link.
This isn’t rocket science! The irrationality, invidious motives, and danger to the public health of the Administration’s White Nationalist attack on vulnerable immigrants was obvious “from the git go.” Lower Federal Courts figured it out quickly and properly enjoined the illegal regulations change.
That’s hardly surprising given that the overwhelming majority of the 210,000 comments on the proposed change opposed it on public health and rational governance grounds, many coming from public health experts. The vile racism of Stephen Miller is also a matter of public record.
Nor is it surprising that the various “exemptions” are largely meaningless, given DHS’s and this regime’s complete and totally deserved lack of credibility in the immigrant community. It’s a commonly known fact of which any immigration practitioner or community worker would be aware, but of which members of our highest Court feign ignorance.
So, when we wonder “how we got to this point,” we can’t ignore the lack of practical understanding of human problems, absence of empathy, and the abandonment of fundamental principles of due process and equal justice for all represented by a Supremes’ majority that unleashed an illegal, ill-advised, invidiously discriminatory travesty like the “Stephen Miller’s public charge regulations” on our nation and some of our most vulnerable members of society – many of whom are actually suffering and even dying to bring us the essential goods and services that have kept us afloat during the pandemic.
A group of younger people that I work with raised these regulations with me recently. They appeared to have a very clear understanding of the adverse legal, ethical, practical, moral, and historical consequences of allowing one misguided group to inflict this type of invidious harm on another group in our society, thereby diminishing the general welfare. Pity that a majority of those serving on our highest Court lacked those same clear insights and values.
Actions and inactions have consequences. And, as we are now seeing, they can be quite ugly. A better Executive and a better Senate are keys to better Federal Courts, from the Supremes down to the Immigraton Courts. If nothing else, Trump has shown us how broken and feckless our current institutions are in the face of tyranny and “malicious incompetence.” We need regime change at all levels.
PWS
06-02-20
NASRALLAH v. BARR, No. 18-432, June 1, 2020
SUPREME COURT SYLLABUS:
OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NASRALLAH v. BARR, ATTORNEY GENERAL CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 18–1432. Argued March 2, 2020—Decided June 1, 2020
Under federal immigration law, noncitizens who commit certain crimes are removable from the United States. During removal proceedings, a noncitizen who demonstrates a likelihood of torture in the designated country of removal is entitled to relief under the international Conven- tion Against Torture (CAT) and may not be removed to that country. If an immigration judge orders removal and denies CAT relief, the noncitizen may appeal both orders to the Board of Immigration Ap- peals and then to a federal court of appeals. But if the noncitizen has committed any crime specified in 8 U. S. C. §1252(a)(2)(C), the scope of judicial review of the removal order is limited to constitutional and legal challenges. See §1252(a)(2)(D).
The Government sought to remove petitioner Nidal Khalid Nasral- lah after he pled guilty to receiving stolen property. Nasrallah applied for CAT relief to prevent his removal to Lebanon. The Immigration Judge ordered Nasrallah removed and granted CAT relief. On appeal, the Board of Immigration Appeals vacated the CAT relief order and ordered Nasrallah removed to Lebanon. The Eleventh Circuit declined to review Nasrallah’s factual challenges to the CAT order because Nasrallah had committed a §1252(a)(2)(C) crime and Circuit precedent precluded judicial review of factual challenges to both the final order of removal and the CAT order in such cases.
Held: Sections 1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual challenges to a CAT order. Pp. 5–13.
(a) Three interlocking statutes establish that CAT orders may be re- viewed together with final orders of removal in a court of appeals. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 authorizes noncitizens to obtain direct “review of a final order of re-
2
NASRALLAH v. BARR Syllabus
moval” in a court of appeals, §1252(a)(1), and requires that all chal- lenges arising from the removal proceeding be consolidated for review, §1252(b)(9). The Foreign Affairs Reform and Restructuring Act of 1998 (FARRA) implements Article 3 of CAT and provides for judicial review of CAT claims “as part of the review of a final order of removal.” §2242(d). And the REAL ID Act of 2005 clarifies that final orders of removal and CAT orders may be reviewed only in the courts of appeals. §§1252(a)(4)–(5). Pp. 5–6.
(b) Sections 1252(a)(2)(C) and (D) preclude judicial review of factual challenges only to final orders of removal. A CAT order is not a final “order of removal,” which in this context is defined as an order “con- cluding that the alien is deportable or ordering deportation,” §1101(a)(47)(A). Nor does a CAT order merge into a final order of re- moval, because a CAT order does not affect the validity of a final order of removal. See INS v. Chadha, 462 U. S. 919, 938. FARRA provides that a CAT order is reviewable “as part of the review of a final order of removal,” not that it is the same as, or affects the validity of, a final order of removal. Had Congress wished to preclude judicial review of factual challenges to CAT orders, it could have easily done so. Pp. 6– 9.
(c) The standard of review for factual challenges to CAT orders is substantial evidence—i.e., the agency’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” §1252(b)(4)(B).
The Government insists that the statute supplies no judicial review of factual challenges to CAT orders, but its arguments are unpersua- sive. First, the holding in Foti v. INS, 375 U. S. 217, depends on an outdated interpretation of “final orders of deportation” and so does not control here. Second, the Government argues that §1252(a)(1) sup- plies judicial review only of final orders of removal, and if a CAT order is not merged into that final order, then no statute authorizes review of the CAT claim. But both FARRA and the REAL ID Act provide for direct review of CAT orders in the courts of appeals. Third, the Gov- ernment’s assertion that Congress would not bar review of factual challenges to a removal order and allow such challenges to a CAT order ignores the importance of adherence to the statutory text as well as the good reason Congress had for distinguishing the two—the facts that rendered the noncitizen removable are often not in serious dis- pute, while the issues related to a CAT order will not typically have been litigated prior to the alien’s removal proceedings. Fourth, the Government’s policy argument—that judicial review of the factual components of a CAT order would unduly delay removal proceedings— has not been borne out in practice in those Circuits that have allowed factual challenges to CAT orders. Fifth, the Government fears that a
Cite as: 590 U. S. ____ (2020) 3 Syllabus
decision allowing factual review of CAT orders would lead to factual challenges to other orders in the courts of appeals. But orders denying discretionary relief under §1252(a)(2)(B) are not affected by this deci- sion, and the question whether factual challenges to statutory with- holding orders under §1231(b)(3)(A) are subject to judicial review is not presented here. Pp. 9–13.
762 Fed. Appx. 638, reversed.
KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.
*****************
Score at least a modest victory for the NDPA over the “Deportation Railroad.”
Once again the Round Table 🛡⚔️ intervened with an amicus brief on the side of justice. Here’s a report from Judge Jeffrey Chase:
Hi All: Our Round Table filed an amicus brief in Nasrallah v. Barr. The Supreme Court issued it’s 7-2 decision in the case today, and we were on the winning side.Kavanaugh wrote the decision, and was joined by Roberts, Ginsburg, Breyer, Sotomayor, Kagan, and Gorsuch. Thomas wrote a dissenting opinion that was joined by Alito.The decision reverses the 11th Cir. and holds that federal courts may review factual issues as well as legal and constitutional issues in CAT appeals filed by noncitizens with criminal convictions falling under 8 C.F.R. section 1252(a)(2)(C).Gibson Dunn assisted us with the drafting of the brief.Best, Jeff
And, of course, as Jeffrey notes, we couldn’t have done it without help from our pro bono heroes 🥇 over at Gibson Dunn! Many, many thanks!
Great that Justice Kavanaugh, Chief Justice Roberts, and Justice Gorsuch “saw the light” on this one! Not sure how often it will happen in the future, but gotta take what we can get.
Also, given the “haste makes waste” policies thrust on EOIR by the DOJ under Trump, and the significant number of fundamental legal and factual errors made by the BIA, judicial review is likely to turn up additional instances of substandard decision-making.
PWS
06-01-20
Catherine writes:
. . . .
That’s because the pretense was nonsense from the start. Trump’s regulatory agenda was never about helping the economy; it was always about rewarding friends and punishing enemies. White House officials have weaponized the “administrative state” they claim to hate and have repeatedly tried to strangle disfavored groups with regulations and red tape.
Not just Twitter, either.
Arbitrary delays in processing visa applications, for example, have been used to punish immigrants and the companies that employ them. U.S. Citizenship and Immigration Services has rejected visa applications because applicants lack a middle name. It has also waited to mail approved visas until (oops!) after the visas had already expired.
The additional costs and uncertainty these processing changes create for workers and their employers are a feature, not a bug.
Elsewhere, both federal and state officials have ratcheted up bureaucratic hurdles for the poor, as Georgetown University professors Pamela Herd and Donald P. Moynihan have documented.
Right now, for example, states can decide a poor family is automatically eligible for food assistance if the family is enrolled in other means-tested safety-net programs. The Trump administration is trying to block states from doing this, and require more paperwork to prove eligibility. By the administration’s own calculations, this would cause 1 million children to lose their automatic eligibility for free school lunches.
The administration, of course, argues that its regulatory decisions are determined not by Trump’s political whims but by meticulous analysis of what’s best for the economy.Helpfully, a method exists to check their work: the cost-benefits analysis that agencies must produce ahead of major rule changes.
These records show, however, that the administration has repeatedly struggled to prove that its regulatory actions actually increase economic and social welfare.
To get the numbers to work out in its favor, the administration has had to cook the books.
. . . .
The only upside to this slapdash math is that it makes the administration’s most damaging and punitive regulatory changes less likely to hold up in court. Already, the Trump administration has lost more than 90 percent of the legal challenges to its regulatory policies, according to New York University’s Institute for Policy Integrity. By comparison, previous administrations lost only about 30 percent of the time.
“A lot of these losses have been because of the poor quality of the analysis — who’s harmed, who’s helped, by how much,” said Richard Revesz, a law professor who directs the institute.
The only thing that may save us from the administration’s regulatory vindictiveness is its incompetence.
******************
Read the rest of Catherine’s article at the link.
As usual, Catherine’s analysis is “spot on.” My problem is this.
If the same private litigant and his or her lawyers kept presenting Federal Courts with false, misleading, or just plain faked evidence and statistics, the private lawyers likely would be facing discipline or disbarment for failure to provide “candor to a tribunal.” The client would be facing large penalties and likely contempt for continuing to institute or cause frivolous litigation.
Yet, except for occasional “harsh but toothless” language in judicial opinions or a couple of minor fines, Trump, his sycophantic toadies, and his battery of unethical Government lawyers get off scot-free for abusing the Article III Judiciary and our legal and judicial processes. Meanwhile, the private litigants are forced to file the same challenges over and over again in different jurisdictions across the country. In the area of immigration, asylum, and human rights, most of the lawyers are donating their time pro bono, while the unethical Government attorneys and their corrupt clients are on the taxpayer’s dime.
The occasional Equal Access to Justice Act award against the Government seldom comes close to compensating private lawyers for their actual lost time and lost opportunities. Nor does it deter the Trump regime, because it comes out of “you of the taxpayers’” pocket.
A Federal Judge demands accurate statistics from DHS after private litigants show the last batch was bogus; the DHS merely submits another set of bogus or misleading data, forcing the private litigants to once again have to demonstrate their unreliability. Government officials and their attorneys claim, contrary to fact, that there is no “child separation” policy, but suffer no consequences other than to be told to stop violating the Constitution. Instead of doing that, they “repackage” unconstitutional child separation as a bogus “parental choice.” So, now the private litigants, who have already won once, have to show that the latest iteration of a clearly illegal and contemptuous policy is what it is: unlawful.
A Federal Judge orders they DHS to make individualized release determinations for detainees held in overcrowded substandard conditions that violate the Government’s own health guidance. Instead of doing that, the DHS merely moves them to another, slightly less crowded facility with equally bad conditions and falsely claims they have “fixed” the problem. Again, the private litigants have to gather new evidence that the move has not materially reduced the health risks to the clients. And so on.
Essentially, the Trump regime and their lawyers are playing a big game of “hide the ball;” every time the private advocates show the Federal Judge where the ball actually is hidden, the Government simply moves it again. And, unfortunately, most Federal Judges give the regime and its ethics-challenged lawyers unlimited “plays” at the expense of the other side. Even when relief is ordered, it just solves the “problem of the moment” rather than halting the pattern of ethical abuses, contemptuous attitudes, and unlawful conduct by the regime and its complicit lawyers.
In effect, the regime has “weaponized” the Federal Courts and the Article III Judiciary in a way not dissimilar from how Sessions and Barr have “weaponized” the Immigration Courts. Turning the Article III Courts into a feckless “runaround” where the individuals and their lawyers “lose even when they win” makes the process punitive and serves as a deterrent to those seeking to challenge the regime’s overtly lawless agenda.
The November election is the chance to throw a scofflaw regime out of office. But, the deep-seated institutional and integrity problems of an Article III Judiciary, beginning with the dangerously complicit and spineless in the face of tyranny “Roberts Court,” that has allowed itself to be “weaponized” and used by the army of authoritarian scofflaws to punish those seeking to uphold the Constitution and the rule of law won’t be solved so quickly. The Article III Judiciary requires an institutional re-examination and a philosophical and ethical overhaul so that it serves the Constitution, due process of law, and equal justice for all, rather than protecting the interests of an insular right-wing minority that seeks nothing less than the disintegration of our nation and our cherished democratic institutions.
PWS
05-29-20
Gabriel Thompson reports for The Guardian:
For more than two decades, Roberto Valdez has harvested crops in California’s eastern Coachella Valley, a scorching region dotted with impoverished communities that are surrounded by bountiful fields of grapes, bell peppers, broccoli, watermelon and more. In 2005, after his son nearly died from heatstroke while picking grapes, Valdez advocated for improved safety measures for farm workers, which culminated in new state regulations that protect workers from heat stress. An undocumented immigrant, he is not eligible for federal relief during the Covid-19 pandemic, but while millions of people shelter in place, he continues to work in the fields with his wife. Here he tells Gabriel Thompson about his life as an essential worker.
•••
Right now I’m harvesting eggplant for $13 an hour. The company gives the crew a 50 cent bonus for each box we fill, so in eight hours we can earn an extra $15 or so. The plants are about 4ft tall and the eggplants grow low, so we usually work on our knees in the dirt. You cut off the eggplants with scissors and fill up buckets that weigh between 40 and 50 pounds, carry them to a large tub where they are washed and packed, and dump them in.
California’s farm workers pick America’s essential produce – unprotected from coronavirus
It tires you out, especially when it’s hot. It was 105 degrees today. By 10 in the morning your clothes are completely soaked with sweat and it’s hard to make it through the eight hours. In fact, some days there are people who leave, who can’t make it.
Advertisement
Hide
Because of the coronavirus we always cover our faces now, no matter what the temperature is. The company has given us disposable blue masks, but we mostly use bandannas. The masks don’t stay clean for very long and they start to smell. When they’re dirty, it’s very hard to breathe. The sun is hot, the ground is hot, you’re working fast, and you can’t breathe. A bandanna you can wash and use again. I bring three bandannas every day: one that goes over my head to protect my neck, and two that I use as masks. We have breaks every four hours, and I use that time to wash the old one out with water and soap and put on a new one. My wife and I work together on the crew, and I bought 16 bandannas that we use.
We leave two rows between each person now, a distance of about 8ft. Before, we ate lunch together around portable tables in the shade. We’d share food. “Hey, grab a taco!” That’s all over. Now we eat apart, mostly in our cars. I also can’t greet people like I used to do, either. I’m the kind of person who likes to shake hands, pat people on the back. “How’s it going? How’re you doing this morning?” Among us Latinos, that’s very common. That’s over, too.
Farm workers wear protective equipment and work behind plastic dividers in the field. Photograph: Brent Stirton/Getty Images
But we still joke and talk, even though we’re separated. There are about 30 people in the crew, and some of us have worked together for years. There are people who are tired, and we’ll tell them a story, just so they’ll be able to get through the day – that’s how we make the work more bearable. Some people have had to stop working because of the coronavirus. There’s a young woman, a single mother with two kids, and she couldn’t keep working because the schools and daycares have shut down. It’s very hard right now – so many mothers have had to stay home.
You have to respect this disease. My brother-in-law died eight days ago, in Mexicali. He was in his 40s and worked at a plant that makes glass. He had high blood pressure and kidney problems, and they had to operate on his kidneys in March. While he was in the hospital he had a hard time breathing, and they suspected he had the coronavirus. They isolated him and put him in an area where the Covid-19 patients were. They didn’t give my sister any information about how he was doing. The government said he died of the coronavirus, but we’re still waiting for the official cause of death. It hurt us a lot, because he was a very good person and no one could visit him.
I saw a news report from New York, where doctors were saying that people weren’t keeping quarantine – going out even when they were supposed to be at home, and more people got infected. That’s something we think a lot about. We stay very clean at work, because we know innocent people are buying the food we harvest, with money they have earned, so that their families will be healthy. And the majority of farm workers, we’re happy to work, we do so with love, and the coronavirus won’t stop us. It’s not going to stop us. Because we know that our work supports the whole nation.
Advertisement
Hide
Right now, Governor Gavin Newsom has proposed giving undocumented immigrants $500 each. There are people who have sued to try and stop this, a woman named Jessica Martinez and a man from El Salvador, Ricardo Benitez. I’d like these people to come out and meet us. I’d like them to see us working. There are people out here who really need this $500, especially people who have lost their jobs. We are the people who are feeding the country. No one else is going to be able to do this. We are the only ones who know how.
We are people who’ve lived in the country 10 and 20 years, and we don’t have a social security number. From my point of view – I say this from my heart – we are like chess pieces that politicians move around. They haven’t done anything, since Barack Obama, since Bill Clinton, since 9/11. I remember I was picking grapes in Arvin when they attacked the twin towers. Back then there was talk of immigration reform for workers. We’ve had hope for a long time, and nothing has happened. We pay taxes. We go to stores and we buy things. Our kids are studying in school. My daughter is about to graduate high school. It’s hard for me to understand why they aren’t letting us become legal residents.
In the media, they’re now calling us “essential workers”. But that’s what we’ve always been. We think of doctors, firefighters and police as important. People who never saw us before now see that we also have value. The coronavirus has brought us both good and bad opportunities. It has hurt us, and it has also made many people realize something they didn’t realize before: that they need us.
Last Monday I arrived home from work and there was a box at my door. The box was filled with milk, bags of lettuce, cabbage, onions and potatoes. I don’t know who brought us the food. I asked the person who manages the trailer park, and he just said some people came to drop off food for everyone. It made me want to cry. It meant that someone was thinking about us, that someone was worrying about us. This was a gesture of kindness toward us. Nothing like that had happened before.
Roberto’s name has been changed to protect his identity.
This is an excerpt from the Unheard Voices of the Pandemic series from Voice of Witness. Thompson is editor of Chasing the Harvest: Migrant Workers in California Agriculture.
*****************************
It’s time to stop the disgraceful waste of taxpayer resources by the Trump regime’s cruel, wasteful, and just plain dumb efforts to penalize, dehumanize, and deport productive members of our society whom we have failed to offer a path to full membership.
The Trump Family, Steven Miller, Chad Wolf, Billy Barr, Cooch Cooch, and the rest of the White Nationalist restrictionists wouldn’t last a day picking fruits and vegetables in the hot sun, and I guarantee they wouldn’t do a very good job at it.
The pandemic is teaching us lots about who’s really essential; and who’s not!
PWS
05-29-20
https://www.rollcall.com/2020/05/27/doj-memo-offered-to-buy-out-immigration-board-members/
Tanvi Misra reports for Roll Call:
https://www.rollcall.com/2020/05/27/doj-memo-offered-to-buy-out-immigration-board-members/
DOJ memo offered to buy out immigration board members
The buyouts were only offered to Board of Immigration Appeals members hired before Trump took office
The Justice Department memo came from the director of the Executive Office of Immigration Review, a Justice Department agency. (Bill Clark/CQ Roll Call file photo)
By Tanvi Misra
Posted May 27, 2020 at 5:04pm
The Justice Department offered buyouts to pre-Trump administration career members on its influential immigration appeals board as part of an ongoing effort to restructure the immigration court system with new hires who may be likely to render decisions restricting asylum.
An internal memo viewed by CQ Roll Call shows that James McHenry, the director of the Executive Office of Immigration Review, offered financial incentives to longtime members of the Board of Immigration Appeals to encourage them to retire or resign. The buyouts and “voluntary separation incentive payments” were offered to “individuals whose positions will help us strategically restructure EOIR in order to accommodate skills, technology, and labor markets,” according to the April 17 memo.
EOIR is the Justice Department agency that oversees the Board of Immigration Appeals, a 23-member body that reviews appealed decisions by immigration judges and sets precedent.
According to two knowledgeable sources at EOIR who declined to be identified for fear of retaliation, the memo was sent to the nine board members appointed under previous Republican and Democratic administrations, before Trump took office. No one accepted the buyout offers, according to both sources.
CQ Roll Call reached out for comment on the memo to McHenry, EOIR and the Justice Department and received a statement Wednesday saying that “the Department does not comment on personnel matters.”
“Any insinuation that politicized hiring has become ramped up is inconsistent with the facts,” the statement said.
The memo sheds light on an ongoing debate over BIA hiring. Immigration judges, lawyers and former EOIR employees say the Trump administration has used the board to help meet its goal of reducing immigration, while government officials say they have simply streamlined a lengthy hiring process that was always subject to political judgments.
In October, CQ Roll Call reported on documents showing the Justice Department had tweaked the hiring process to fill six new vacancies on the board with immigration judges with high asylum denial rates and a track record of complaints. Additional memos that CQ Roll Call wrote about earlier this month shed further light on these rule changes that enabled fast-tracking of those and more recent hires.
The three most recent hires to the board include an immigration judge who denied 96 percent of the asylum requests before him and had a history of formal complaints about “bias and prejudice.” The vacancies were created after a flurry of career board members left the BIA.
“EOIR does not select board members based on prohibited criteria such as race or politics, and it does not discriminate against applicants based on any prohibited characteristics,” the Justice Department said in its statement. “All board members are selected through an open, competitive, merit-based process that begins with a public advertisement on the Office of Personnel Management’s (OPM) federal employment website.”
Recent changes to EOIR hiring procedures “have made the selection process of board members more formalized and neutral,” the department said.
While buyouts are typically offered to soften the blow of workforce reductions, the two sources at EOIR said the agency’s offers were made so that the BIA could be reconfigured entirely, with the positions of “board members” replaced by those of “appellate immigration judges.” The differences go beyond title, extending to pay ranges and leave policy. Appellate immigration judges also hear cases at both the trial and appellate levels, creating potential conflicts of interests.
“Many board members have viewed themselves as appellate immigration judges for years, and EOIR first proposed such a designation in 2000,” according to the Justice Department statement. “Elevating trial-level judges to appellate-level courts is common in every judicial system in the United States.”
The American Immigration Lawyers Association and other critics said the buyout offer is the latest example in a series of moves that have undermined the neutrality of the immigration court system. They point out that BIA is already housed under a law enforcement agency, the Justice Department, whose leadership may have a stake in the outcome of the court process.
“The administration is trying to further politicize the immigration court system by packing the appellate bench and is seeking to make room for more handpicked judges with this buyout,” Benjamin Johnson, AILA’s executive director, told CQ Roll Call.
“These latest actions reveal the severe impact of our nation’s immigration system being housed under the Attorney General and only underscore the real need to create an independent immigration court,” he said.
**************
The refusal of the “holdovers” to take the “buyout” just forced the DOJ politicos to use a different “strategy:” creating additional “appellate judgeships” and “packing” them with appointees with established records of hostility to asylum seekers and the due process rights of respondents.
This presents an interesting historical comparison with an earlier GOP Administration’s program for promoting an anti-immigrant agenda at the BIA. Under Bush II, Ashcroft arbitrarily “cut” the size of the BIA to get rid of the vocal minority of judges who dared to speak up (usually in dissent) for the rights of asylum seekers and other migrants to due process, fundamental fairness, and humane treatment. I was one of those judges “exiled” from the BIA during the “Ashcroft Purge of ‘03.”
Fortunately, I got a “soft landing” just down the hill from the “EOIR Tower” at the Arlington Immigration Court where I remained on the bench and (mostly) “below the radar screen” for the following 13 years. And, yes, I was offered a “buyout” in the form of “early retirement,” which would have been a rather bad financial deal for me at the time. So, I rejected it, and eventually got a much better “deal.”
The DOJ’s claim that the current farce is a “merit selection system” is beyond preposterous. But, as long as Congress and the Article IIIs won’t stand up to Trump’s blatant abuses of due process, the “de-professionalization” of the career Civil Service, and the dehumanization of the “other” before the law (“Dred Scottificfation”), the charade will continue.
Of course the problem isn’t, as EOIR would lead you to believe, that some “trial judges” are elevated to the appellate bench. It’s which “trial judges” are being “rewarded” for their records of hostility to asylum seekers, respondents, and their attorneys.
Also, in what has become essentially a “closed system” of Immigration Judges, staffed almost exclusively by government attorneys overwhelmingly with prosecutorial backgrounds, the “elevation” of existing trial judges, basically tilts the system heavily in favor of DHS and against respondents. Indeed, some fine Immigration Judges with broader experience including private practice, who would have made superior Appellate Immigration Judges in a true merit-based system, were instead forced off the bench by the demeaning, biased, restrictionist policies implemented at EOIR.
Also, having served as both a trial and appellate judge, I know that the “skill sets” are related, but by no means identical. Not all good trial judges make good appellate judges and vice versa. While it’s certainly to be expected that some trial judges will be elevated to the appellate bench, that should not be the sole source of appellate judges.
Appellate judging requires scholarship, collegiality, creativity, writing, and a broad perspective that many talented private advocates, academics, and NGO lawyers possess in abundance. The same holds true of the Article III Appellate Bench. From the Supremes on down, it’s basically in various degrees of failure to uphold the rule of law and the Constitution against the attacks by the Trump regime.
It’s a case of far too many former District Court Judges, former prosecutors, and right-wing “think tankers,” and far too few individuals who have litigation, legal, and life experience gained from representing those who actually come before the courts. The Supremes in particular are badly in need of folks with a broader, more practical, more humane perspective on the law.
The institutional failure of today’s Supremes in the face of concerted Executive tyranny threatens to collapse our entire justice system and take our democratic republic down with it. The whole Article III judicial selection system needs careful reexamination and reforms lest it fall into the same type of institutional dysfunction and disrepute as today’s Immigration “Courts” (which aren’t “courts” at all in any normal sense of the word).
Of course, Trump, Barr, and the rest of their anti-democracy gang would love to make the captive, biased, Executive-controlled Immigration “Courts” the “model” for the Article III Judiciary. And, John Roberts and the rest of the “JR Five” seem all too eager to accommodate them. The perception already is out here that Roberts & Co. “work for” Trump Solicitor General Noel Francisco in somewhat the same way as Immigration “Judges” work for Billy Barr. Until Roberts and his gang show the courage to stand up to Trump and enforce the legal, constitutional, and human rights of “the other” in our society, that perception will only deepen.
As generations of African-Americans discovered following the end of Reconstruction, Constitutional and legal rights are meaningless in the face of biased and cowardly legislators, judges, and other public officials who simply look the other way, join the abuses, or “go along to get along” with treating “the other” unfairly under the law.
PWS
05-28-20
AILA Statement on BIA:
AILA Doc. No. 20052830 | Dated May 28, 2020
Washington, DC – According to the Roll Call story published May 27, 2020, Executive Office for Immigration Review (EOIR) Director McHenry sent the remaining members of the Board of Immigration Appeals (BIA) a buy-out memo offering them financial compensation in exchange for early retirement or resignation. This memo was sent on April 17, 2020, during the global public health crisis, and highlights the continuing push by this administration to manipulate the functions of the BIA, the appeals court located within EOIR.
AILA Executive Director Benjamin Johnson stated, “This administration has taken numerous steps to alter the composition and role of the BIA, all in an effort to gain more control over the immigration courts and influence court decisions. In recent months, it came to light that the EOIR Director was attempting to pack the immigration bench with more appointees who have among the lowest asylum grant rates in the country. Now, he is attempting to winnow existing members from the BIA and replace them with a roster of Appellate Immigration Judges, despite congressional and stakeholder concerns about politicization of the BIA. Last year, these new appellate judge positions were created out of thin air. They appear to have nearly identical job functions as the BIA members but the Appellate Immigration Judges can adjudicate both trial and appellate level cases at the same time and can be reassigned away from the BIA at the whim of the EOIR Director.”
“This effort shows a complete disregard, or at the very least a failure to appreciate how our judicial system is supposed to work to provide a fair day in court. In 2003, Attorney General Ashcroft purged several members of the BIA, a political move that was severely criticized and ultimately undermined the credibility of our court system. These recent efforts by this administration make it even clearer that our nation urgently needs an immigration court system that is independent, fair and impartial.”
###
The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.
**************************
The BIA is a travesty, to be sure. But, an even bigger travesty is the continued “deference” given to a biased, unqualified, non-expert tribunal and its political handlers by the Article III Courts! Under Marbury v. Madison, it’s the job of the Article III Courts to say what the law is. To “defer” to the BIA, a body that currently functions not like a independent, expert tribunal, but has become a “shill” for DHS Enforcement and an adjunct of White Nationalist White House Policy Advisor Stephen Miller, is a disgraceful case of judicial task avoidance and dereliction of duty.
If nothing else, the ongoing disaster at the BIA points to an “inconvenient truth” in America’s justice system: We need better, more informed (particularly in the areas of immigrants’ rights and human rights), more courageous judges at all levels of the Federal Judiciary if we are to survive as a democratic republic where the rule of law and equal justice under law have meaning!
PWS
05-28-20
From the WashPost Editorial Board:
Opinions
Migrant children are still confined and vulnerable. It’s a gratuitous act of cruelty.
By Editorial Board
May 25 at 2:09 PM ET
As the pandemic gathered speed In March, a federal judge called the government’s immigrant detention centers “hotbeds of contagion” and ordered that migrant children be released from them without delay. Some have been. But the Trump administration has dragged its feet in freeing many migrant children detained with their families, offering parents the formal “option” of letting their children go — to be separated from their mothers and fathers.
That Hobson’s choice was presented in mid-May to several hundred asylum-seeking parents at the three migrant family detention centers, in Texas and Pennsylvania, run by U.S. Immigration and Customs Enforcement. Many Americans may have assumed that the administration, scalded by its last experiment with separating migrant children from their families, would not again broach that subject. But it did.
[[Full coverage of the coronavirus pandemic]]
On May 13 and 14, parents at those facilities, mainly mothers, were herded into sudden encounters with ICE officials, who presented them with forms to sign. The detainees’ lawyers were neither notified nor aware of what was going on. The forms presented parents with the option of allowing government agents to place their children with relatives or other sponsors elsewhere in the United States, while the parents would stay behind in detention. Very few of the parents assented, though plenty were shaken by the experience; some agreed without realizing the repercussions, according to a subsequent court filing.
Judge Dolly M. Gee, of the U.S. District Court in Los Angeles, has jurisdiction over detained migrant children under the 1997 Flores settlement, which prohibits the long-term detention of migrant minors. In March, as covid-19 cases were spreading rapidly in migrant detention facilities, she ordered the administration to speed up the release of minors; hundreds were placed with sponsors. However, the Flores agreement grants the judge no jurisdiction over parents detained with their children.
That apparently prompted ICE to undertake its proceedings in the family detention centers, in which agents asked asylum-seeking parents if they were willing to part with their children, some of them babies and toddlers. In fact, ICE has the authority to release families pending their next appearance in immigration court, and has done so routinely in the past. The Trump administration has taken a different tack, raising the bar on asylum as it subjects migrant families to months-long confinements even if children suffer in the process — which they do.
According to advocates and attorneys for the migrant parents, the parents summoned by ICE officials were confused and intimidated. Some thought they risked being deported if they refused to let their children be taken away. In at least one instance, according to a court filing, a mother who signed the form asked an ICE officer if she could change her mind; she was told no.
[[The Opinions section is looking for stories of how the coronavirus has affected people of all walks of life. Write to us.]]
The administration closed the U.S. southern border to asylum seekers this spring, citing the risk of the pandemic. Most detained migrants had entered the country months earlier, and more than 1,000 covid-19 cases have been reported in detention facilities nationwide, including among detainees and staff members. None have been confirmed in the three family detention centers, perhaps because there has been little testing. Still, hundreds of migrant minors detained with their families remain at risk of contracting the virus. At this point, their continuing confinement seems a gratuitous act of cruelty.
*****************************
A regime of scofflaws, child abusers, and human rights violators. How will we explain that to future generations?
PWS
05-26-20
Dan Kowalski reports on LexisNexis Immigration Community:
Daniel M. Kowalski
22 May 2020
CA1 on Pardons: Thompson v. Barr
“Petitioner Richard Marvin Thompson (“Thompson”) appeals the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen sua sponte his immigration proceedings, alleging that the BIA committed a clear legal error. Thompson asks this Court to exercise jurisdiction to review whether the BIA clearly erred when it determined that he was not entitled to relief from deportation under section 237(a)(2)(A)(vi) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2) (A)(vi) (the “Pardon Waiver Clause”), because a pardon issued by the Connecticut Board of Pardons and Paroles is “not effective for purposes of establishing entitlement to” a waiver of deportation. Because we find that this Court has jurisdiction to review this colorable legal question and because, here, the BIA departed from its settled course of adjudication, we vacate the decision of the BIA and remand for further proceedings consistent with this opinion.”
[Hats off to Gregory Romanovsky, William M. Tong, Attorney General of Connecticut, Jane Rosenberg, Assistant Attorney General, Clare Kindall, Solicitor General, amicus curiae for the State of Connecticut, Trina Realmuto, Kristin Macleod-Ball and Emma Winger!]
******************
So, let’s take a little closer look. Thompson immigrated legally to the U.S. in 1997, at age 14. Nearly two decades ago, Thompson was convicted of second degree assault in Connecticut and given a suspended sentence and 3-years probation. In other words, no jail time.
He successfully completed probation, got a GED, and worked as a commercial operator for 10 years. Essentially, Thompson successfully rehabilitated and became a productive member of society.
In 2012, the Obama Administration DHS, in its wisdom, instituted removal proceedings against Thompson based on his 2001 Connecticut assault conviction. After being found removable and losing on appeal, Thompson received a full and complete pardon from the Connecticut State Board of Pardons, the highest pardoning authority in the state. Although established by the legislature, the Board of Pardons’ action was deliberative and based on an assessment of the factors in Thompson’s individual case. It was not an “automatic expungement” pursuant to legislation.
Since the time for filing a motion to reopen had expired, Thompson asked the BIA to reopen his case “sua sponte” — on its own motion — to recognize that the pardon had eradicated the legal basis for removal.
Following its previous rulings, as well as sound policy and common sense, the BIA should promptly have granted Thompson’s motion and terminated proceedings in a two or three sentence order. Instead, the BIA, now operating under the “Trump removal regime in 2018,” denied the motion based on specious reasons that deviated without rational explanation from their prior treatment of substantially identical motions.
The BIA’s action touched off approximately 20 months of furious litigation involving a small army of lawyers on both sides, including the Connecticut Attorney General and the Connecticut Solicitor General, as well as the American Immigration Council, filing briefs in support of Thompson.
Following this 34-page opus by the First Circuit, Thompson’s case is by no means over. It’s been “orbited” back to the “Weird World of EOIR” where Thompson might, or might not, receive justice at some undetermined point in the future. To make matters even worse, Thompson remains detained at the Etowah County Detention Center in Gadsden, Alabama. Alabama is one of the current “hot spots” for COVID-19.
Is it any wonder that a “weaponized,” overtly anti-immigrant “court system” that looks for “reasons to deny” meritorious cases, rather than promoting prompt and efficient due process in deserving cases is running a backlog of approximately 1.4 million “on and off calendar” cases?
The longer the reviewing Circuit Courts keep up the fiction of treating EOIR as a legitimate adjudicative organization rather than the biased, “non-expert,” unconstitutional extension of DHS Enforcement that it has become, the bigger the mess will get and the more injustice that will be done to individuals like Thompson.
Meanwhile, legions of lawyers and judges at all levels, who could and should be devoting their talents to operating a constitutional immigration justice system that provides “due process and fundamental fairness with efficiency and humanity for all concerned” will instead continue to flail as a result of this “designed and operated to fail” system run by a kakistocracy to produce injustice and to squander judicial time and legal resources on a massive scale. When will it ever end?
PWS
05-24-20
https://apple.news/ADjIgsd5vTR6lN15QEpey1w
Over the last several years, America has been rocked by evidence of the mistreatment of migrants in detention centers. While the nation makes its political judgments about the future of immigration policy, Stephen Manning has assembled a team of lawyers, organizers, and tech innovators working to squeeze more humanity out of the current system while imagining its replacement. We talked to Stephen about how he pursues justice and reform.
How did you get involved in immigration law in the first place?
I was volunteer teaching at an elementary school, helping immigrant children from Central America with homework. I asked, “Why don’t you do your homework?” and I found their answer hard to believe: “We’re going to be deported.” No one deports second-graders, I thought. It must be an administrative matter. Naively, I took the whole family to Immigration, unprepared for the experience. I discovered a system based on the otherization and exclusion of human beings, as core principles. I could have gotten the whole family deported but luckily everyone was ok, and are still ok—I’ve since presided over two of their weddings.
What is so dehumanizing about immigration?
In fact, immigration could be a deeply humanizing experience—it could be the ultimate humanizing concept, actually. Instead, though, today it is the opposite. Its purpose is to categorize persons and judge their desirability. Racism and other biases have corrupted these functions. For example, on April 22nd, President Trump issued a proclamation to end family-based immigration. The next day his advisor explained that they want to “re-white” the country. The Remain in Mexico program does the same thing. Take a person seeking asylum: they are treated based not on their individual lives and circumstances, but on their assignment to a less desirable macro category—the asylum-seeker. They lose their individuality and simply become members of an undesired group. That classification has nothing to do with their hopes, fears, dreams or their contributions to our collective prosperity.
The same sense of power affects the whole system and shows up in myriad small ways. For example, I remember being at a detention center filled with families, working on a very compelling claim by a mother and her children. I’m working on my laptop surrounded by small children playing. We had sent a letter to the officer showing cause for their release. He showed up armed, in aviator glasses, ignored the children, and crumpled up and threw away the letter right in front of everyone. That’s dehumanization on a micro scale.
What surprises people when they learn about the realities of the U.S. immigration system?
People expect law to reflect some kind of morality. We expect the power of the law to be used justly. When law and power seem to align against common sense—that’s a tough lesson, even for lawyers. The immigration legal system is a world unto itself, and even for experienced lawyers, nothing prepares them for it.
You started and lead Innovation Law Lab, one of the largest pro bono projects in the country, to push for reforms. How do you recruit lawyers to volunteer?
Innovation Law Lab is equal parts lawyers, organizers, and coders. Our core team is about 20 people. For volunteers, actually, we don’t have any formal recruitment mechanisms. The work itself is demanding—you’re volunteering, giving up family time, spending your own money to participate. What we offer is a chance to use the law for justice and to join a team of like-minded people. And we’ve also structured it so that it can scale. We ask, Can you come for a day, a week, three weeks? Big law does not have to worry—there’s no mass exodus coming, but there is a small trend towards movement-based lawyering. The last time I looked, our numbers at Innovation Law Lab were in the tens of thousands of volunteers. And about 30% are repeat volunteers; they participate in multiple projects.
. . . .
Stephen Manning is an Ashoka Fellow. You can read more about him and his work here.
*******************
You can read the rest of the profile at the link.
Innovation Law Lab is doing some spectacular work in defending the Constitution, the rule of law, and humanity against the Trump regime’s relentless onslaught.
PWS
05-22-20
https://jnc.dc.gov/biography/david-h-wetmore
David H. Wetmore
David H. Wetmore, Esq. is a career appellate litigator in the United States Department of Justice, currently serving as Associate Deputy Attorney General. During his tenure at the Department of Justice, Mr. Wetmore has also served as Senior Counsel to the Deputy Attorney General and as a Trial Attorney in the Civil Division. He has been the principal author of hundreds of appellate briefs and argued over twenty-five cases in federal courts of appeals. Prior to joining the Department of Justice, Mr. Wetmore was an associate attorney in Sidley Austin LLP’s District of Columbia office, and at Jenner & Block LLP’s Chicago office, where his practice focused on civil, criminal, and constitutional litigation. Mr. Wetmore has experience in all aspects of litigation, from initial investigation and discovery through trial and appeal, in both state and federal courts, including in the District of Columbia. He has also served as an Adjunct Professor at The George Washington University Law School.
Mr. Wetmore earned his Bachelor of Arts, magna cum laude, from Miami University, where he was elected to Phi Beta Kappa, graduated from the University Honors Program, and received Departmental Honors in Political Science and Philosophy. He earned his Juris Doctor, with High Honors, from The George Washington University Law School, where he was an Articles Editor of The George Washington Law Review, elected to Order of the Coif, and a member of the Moot Court Board. Following law school, Mr. Wetmore served as a law clerk to the Honorable Gordon J. Quist, in the United States District Court for the Western District of Michigan, and later to the Honorable Daniel A. Manion, in the United States Court of Appeals for the Seventh Circuit.
*****************
Normally reliable, totally unofficial anonymous sources say Wetmore’s “the one.”
There is further rank, unverified speculation that the current Acting Chair, Judge Garry Malphrus, eventually will get the just-advertised “Vice Chair/Deputy Chief Appellate Judge” position as a reward for reliably furthering the BIA’s anti-immigrant jurisprudence during his tenure. Malphrus replaced former Chair David Neal who resigned suddenly last Fall.
Wetmore currently is an Associate Deputy Attorney General at the DOJ. That’s roughly the DOJ equivalent of the “Under Assistant West Coast Promo Man*.” The Associate Deputy Attorney General, of course, should never be confused with the Deputy Associate Attorney General, an entirely different position. Actually, it’s about as far up the DOJ hierarchy that a “career” attorney can get. The higher level positions, in this case the Deputy Attorney General, are Presidentially-appointed politicos.
With this development, the connection between the BIA and the Office of Immigration Litigation (“OIL”) should become “seamless.” The BIA staff can just “cut and paste” OIL briefs into their decisions and vice versa. This eliminates the need to sometimes request time-consuming Circuit Court remands to get the BIA to adopt OIL’s preferred litigating position. In turn, this should totally eliminate the possibility of an individual ever “winning” a BIA appeal and will eradicate any remaining traces of due process or fundamental fairness at the BIA.
These moves, combined with an outrageous proposed increase in the filing fee for a BIA appeal, will undoubtedly be a powerful tool for deterring, discouraging, and punishing individuals for exercising their legal rights. These are critical steps in insuring the smooth operation of the regime’s “Deportation Railroad.”
Any way you look at it, today’s BIA certainly presents an “interesting diversity profile,” particularly considering the community whose rights it once was supposed to protect, but now has unabashedly abandoned as it seeks to carry out the Trump/Miller/Barr White Nationalist mission of “Dred Scottifying the other.”
It also continues a two-decades long “DOJ tradition” of intentionally failing to attract better-qualified candidates from the private immigration sector, with actual experience representing and interacting with asylum seekers and other migrants, for BIA judgeships. The “outside, non-restrictionist world” has also been overwhelmingly excluded from appointments to Immigration Courts, with essentially de facto preference being given to government prosecutors.
Obviously, the reduction of Immigration Judges and Appellate Immigration Judges to something akin to “deportation clerks” straining to meet “production quotas” and pressured by regime politicos to aid DHS Enforcement by churning out deportation orders has been an important step in “dumbing down” EOIR. Today, EOIR is probably more subservient to DHS Enforcement, less impartial, and more of an administrative disaster than it was under the “Legacy INS.” Except, now there is more of everything — more overt political interference in the adjudication process, more bad law intentionally created, more and bigger backlogs, more intellectual dishonesty, more chaos, more disrespect for and demeaning of respondents and their attorneys, and more lives ruined.
Due Process Forever! Weaponized, Captive, “Courts” Never!
PWS
05-21-20
*Stones, The Rolling, “The Under Assistant West Coast Promo Man”
Well, I’m waiting at the bus stop in downtown L.A.
Well, I’m waiting at the bus stop in downtown L.A.
But I’d much rather be on a boardwalk on BroadwayWell, I’m sitting here thinkin’ just how sharp I am
Well, I’m sitting here thinkin’ just how sharp I am
I’m an under assistant west coast promo manWell, I promo groups when they come into town
Well, I promo groups when they come into town
Well they laugh at my toupee, they’re sure to put me downWell, I’m sitting here thinking just how sharp I am
Yeah, I’m sitting here thinking just how sharp I am
I’m a necessary talent behind every rock and roll bandYeah, I’m sharp
I’m really, really sharp
I sure do earn my pay
Sitting on the beach every day, yeah
I’m real real sharp, yes I am
I got a Corvette and a seersucker suit
Yes, I haveHere comes the bus, uh oh
I though I had a dime
Where’s my dime
I know I have a dime somewhere
I’m pretty sureWriter/s: Keith Richards, Michael Jagger
Publisher: Abkco Music, Inc.
Lyrics licensed and provided by LyricFind
Check it out from YouTube here (you can skip the commercials):
