Removals – Page 99 – immigrationcourtside.com

INCARCERATION NATION: Private Prison Corps Win, Everyone Else Loses!

http://www.huffingtonpost.com/entry/trump-100-days-private-prisons_us_590203d8e4b0026db1def8fb

Dana Liebelson reports for HuffPost:

“WASHINGTON ― When Donald Trump was running for president, the private prison industry in the United States was down for the count. An undercover reporter exposed abuse at a private prison in Louisiana. A report from the Department of Justice’s Office of the Inspector General found private prisons had higher rates of assault than regular prisons.

The Obama administration announced in August that it was phasing out the use of private prisons to house federal inmates; private prison stock subsequently plunged. And Trump’s foe, Democratic candidate Hillary Clinton — who had received donations from private prison lobbyists — said she was “glad” to see the end of private prisons. “You shouldn’t have a profit motivation to fill prison cells with young Americans,” she added.

Then Trump won.

In his first 100 days, Trump has failed to fulfill the populist promises of his campaign, while industries like Wall Street have made big gains. But the private prison industry in the U.S. — which is heavily dependent on federal contracts from the Federal Bureau of Prisons, U.S. Immigration and Customs Enforcement and the U.S. Marshals Service — has had one of the biggest turnarounds of all, winning Justice Department approval, new and extended contracts, and an administration that is expected to bolster the demand for a lot of detention beds.

The Obama administration’s 2016 directive to reduce and ultimately end the use of privately operated prisons on the federal level “put these companies on the defensive in a way that we had not seen for at least 15 years,” Carl Takei, a staff attorney at the American Civil Liberties Union’s national prison project, told HuffPost. “But now, we face a total reversal of that situation.”

In February, Attorney General Jeff Sessions withdrew the Obama-era directive, claiming that it “impaired the [Bureau of Prisons’] ability to meet the future needs of the federal correctional system.” One day after that announcement, CNN reported that the stocks of CoreCivic (previously called Corrections Corporation of America) and GEO Group, the two largest private prison operators, were up 140 percent and 98 percent, respectively, since Trump’s election.

“The attorney general’s announcement in February validated our position that the DOJ’s previous direction was not reflective of the high-quality services we have provided,” said Jonathan Burns, a spokesman for CoreCivic.

But the wins for private prison operators go further than the Trump administration’s reversal of the Obama administration’s memo, which technically only applied to a sliver of federal prisons, not state lockups or immigration detention facilities.

The Trump administration is also expected to implement tough-on-crime policies and large-scale deportations. Just this month, Sessions announced plans to weigh criminal charges for any person caught in the U.S. who has been previously deported, regardless of where they’re arrested.

CoreCivic does not draft legislation or lobby for proposals that might determine the basis or duration of a person’s incarceration, the company spokesman told HuffPost.

But private prison operators acknowledge that “new policies, priorities under the new administration [have helped create] an increased need for detention bed space,” as J. David Donahue, GEO Group senior vice president, told investors in February.

Donahue said his company was having ongoing discussions with ICE about its capabilities, which included “3,000 idle beds and 2,000 underutilized beds.” In April, GEO Group announced it had been awarded an ICE contract to build a new 1,000-bed detention center in Texas.

CoreCivic also announced a contract extension in April at a 1,000-bed detention facility in Texas. The company cited “ICE’s expected detention capacity needs” and “the ideal location of our facility on the southern border” as reasons ICE might extend its contract even further.

The Department of Homeland Security has identified 33,000 more detention beds available to house undocumented immigrants as it ramps up immigration enforcement, according to an internal memo obtained by The Washington Post and dated April 25.

“We can expect that the private prison industry will get rich off of any push by the Trump to expand the number of people in federal custody,” the ACLU’s Takei said.

If you’re determined to lock everybody up as long as possible, whether they’re dangerous or not, you need a place to put them and lots of money to pay for it.Molly Gill, director of federal legislative affairs at FAMM

In February, Trump re-emphasized his support for Kate’s Law, backed by Sen. Ted Cruz (R-Texas), which would establish a five-year mandatory minimum prison sentence for undocumented immigrants who re-enter the United States after being convicted twice for illegal re-entry. The ACLU has estimated that even the most limited version of Kate’s Law would require nine new federal prisons.

Sessions has also tapped Steven Cook, who previously headed a group that opposed the Obama administration efforts to implement sentencing reforms, for a key role in a task force that will re-evaluate how the federal government deals with crime. This suggests that the Trump administration is planning to fulfill its promises to prosecute more drug and gun cases federally.

“If you’re determined to lock everybody up as long as possible, whether they’re dangerous or not, you need a place to put them and lots of money to pay for it,” said Molly Gill, director of federal legislative affairs at FAMM, a group that opposes mandatory minimums.

Although the federal prison population has declined in recent years, federal prisons are still over capacity. Congress “does not seem to have much of a taste for building new prisons,” Gill noted, so “private prison contractors could make up the difference.”

Private prison critics claim that the industry has an incentive to spend less money on inmate services, as well as sufficient staffing, which can have disastrous human rights consequences including reliance on solitary confinement, poor mental health care, and violence. Private prisons are also not subject to the Freedom of Information Act, which means any misconduct is often shrouded in secrecy. (The CoreCivic spokesman said “the comments raised by critic groups are misinformed and neglect the history of our company.”)

A spokesman for GEO Group told HuffPost that the company believes the Obama administration decision to phase out private prisons last August “was based on a misrepresentation” of an Inspector General report that he said demonstrated that privately run facilities “are at least as equally safe, secure, and humane as publicly run facilities and in fact experienced lower rates of inmate deaths.”

In fact, investigators found that in “most key areas, contract prisons incurred more safety and security incidents per capita than comparable [Bureau of Prisons] institutions.” (At the time, GEO Group said higher incidents numbers could be chalked up to better reporting.)

Civil rights advocates, nonetheless, have deep concerns. “Handing control of prisons to for-profit companies is a recipe for abuse and neglect,” Takei argued. “We expect that even greater reliance on private prisons will lead to similar problems, but on a larger scale,” he added.”

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For more on the Administration’s plans for a “New American Gulag,” see my recent post: http://wp.me/p8eeJm-KN.

And, while individuals subject to so-called “civil” detention clearly are the biggest losers, along with our self-respect as a nation with humane values, don’t forget the U.S. taxpayers who, along with shelling out billions for unnecessary incarceration, will also likely be on the tab for some big legal fees and damage awards once folks start suffering actual harm from the Administration’s abandonment of appropriate standards and safeguards on conditions of detention.

PWS

04-28-17

NEW FROM 4TH CIRCUIT: Court Reviews Expedited Removal, Finds VA Statutory Burglary “Not Divisible” — CASTENDET-LEWIS v. SESSIONS!

http://www.ca4.uscourts.gov/Opinions/Published/152484.P.pdf

PANEL:

GREGORY, Chief Judge, KING, Circuit Judge, and DAVIS, Senior Circuit Judge.

OPINION BY: JUDGE KING

“In these circumstances, we must assess whether a Virginia statutory burglary constitutes an aggravated felony using the categorical approach. See Omargharib, 775 F.3d at 196. As the Attorney General concedes in this proceeding, the Virginia burglary statute is broader than the federal crime of generic burglary. In Taylor, the Supreme Court included in its definition of a generic burglary “an unlawful or unprivileged entry” into “a building or other structure,” and explained that state burglary statutes that “eliminat[e] the requirement that the entry be unlawful, or . . . includ[e] places, such as automobiles and vending machines, other than buildings,” fall outside the definition of generic burglary. See 495 U.S. at 598-99. As we noted above, the Virginia burglary statute is satisfied by various alternative means of entry, including one’s entry without breaking or one’s concealment after lawful entry. By proscribing such conduct, the statute falls outside the scope of generic burglary. The Virginia burglary statute also reaches several places that are not buildings or structures, such as ships, vessels, river craft, railroad cars, automobiles, trucks, and trailers. As the BIA recently recognized, the breadth of the statute means that it falls outside the definition of an aggravated felony. See In re H-M-F, __ I. & N. Dec. __ (BIA Mar. 29, 2017). Utilizing the categorical approach, we are also satisfied that the Virginia offense of statutory burglary criminalizes more conduct than the generic federal offense of burglary. The DHS therefore erred in classifying Castendet’s conviction as an aggravated felony.”

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Could the wheels be starting to come off the DHS’s “Expedited Removal Machine” before it even gets up to full throttle?

PWS

04-27-17

WashPost: J. Rubin Says Trump Administration’s War On Illegal Immigration Is Bogus!

https://www.washingtonpost.com/blogs/right-turn/wp/2017/04/26/the-jig-is-up-hysteria-over-illegal-immigration-is-baseless/?utm_term=.73251571b3e1Bogus!

Rubin writes in “Right Turn” in the WashPost:

“The anti-immigrant hysteria that became a mainstay of President Trump’s agenda and the hymnal of the GOP rests on the assumption that we are awash with illegal immigrants. It’s illegal immigrants who are responsible for a crime wave. (There isn’t a wave, but stick with this for a moment.) It’s illegal immigrants, they say, who are responsible for the economic suffering in the Rust Belt. (If we just got rid of them, jobs and wages would go up!) Hillary Clinton was going to continue the Obama administration’s policy: open borders!

Well, it’s all fake. There was a dramatic downturn in illegal immigrants under President Barack Obama, who deported record number of people. As many of us argued, the economic recession reversed the flow of immigrants so on net more are now leaving for Mexico than coming from there. Alex Nowrasteh of the Cato Institute observes, “President Trump can’t take credit for the unprecedented collapse in illegal immigration since 2007 but the Great Recession, growing Mexican economy, and Mexican demographics can. ”

The Pew Research Center tells us:

There were 11 million unauthorized immigrants living in the U.S. in 2015, a small but statistically significant decline from the Center’s estimate of 11.3 million for 2009, the last year of the Great Recession. The Center’s preliminary estimate of the unauthorized immigrant population in 2016 is 11.3 million, which is statistically no different from the 2009 or 2015 estimates and comes from a different data source with a smaller sample size and a larger margin of error. This more recent preliminary data for 2016 are inconclusive as to whether the total unauthorized immigrant population continued to decrease, held steady or increased.

Oops. You mean getting rid of all those illegal immigrants didn’t create job openings for unemployed factory workers in the heartland or boost wages or prevent Chicago’s crime increase in the past two years? Nope. It seems the anti-immigration crowd will need to find new scapegoats to blame and new ideas for solving our systemic economic problems.

In particular, Trump’s obsession with the Mexican border appears to be entirely misplaced:

Mexicans have long been the largest origin group among unauthorized immigrants – and the majority for at least a decade – but their numbers have been shrinking since peaking at 6.9 million, or 57% of the total, in 2007. In 2014, they numbered 5.8 million (52% of the total). In 2015, according to the Center’s new estimate, they declined to 5.6 million, or 51% of the total. And in 2016, according to the Center’s preliminary estimate, the number of unauthorized immigrants from Mexico was the same, but their share fell to 50% of the total, marking the first time since at least 2005 that Mexicans did not account for a majority of the unauthorized immigrant population.

Why, then, do you suppose the Trump team is so fixated on illegal immigrants and the southern border? Well, immigration exclusionists have been ignoring readily available facts for some time. There is no illegal immigrant crime wave. The border is much more secure.

We’re hard-pressed to come up with any other explanation than the obvious one: As in France, fear and hatred of immigrants are a convenient excuse for voters and policymakers who cannot grapple with messy truths. Trump has no policy agenda to help the working and middle class, so he sells xenophobia. Get rid of illegals and you’ll all have $30-per-hour jobs! You can’t make a middle-class living as a manual laborer? blame the immigrants! Scared of terrorism and don’t want to think about the problem of radicalization of Westerners? Blame the refugees, the most thoroughly vetted immigrants there are.

It’s time to put an end to the nonsense, stop turning our cities and communities upside-down, alienating our ally Mexico over an unneeded wall, wasting money on building a wall and vilifying outsiders. Right-wingers should stop pushing the comforting fantasy to displaced workers that nothing they have done (e.g., not gone to college, not developed computer skills, stayed in locales with no jobs) and nothing they have to do (e.g., go back to school, develop new skills, move to where the jobs are) matter so long as all those illegal immigrants are “stealing” their jobs. That sort of fatalism is wrongheaded and ultimately does a huge disservice to those who need to catch up to the globalized economy. And now we now have plenty of evidence that the immigration scaremongering is fraudulent.”

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While I often disagree with Rubin, her points here seem well taken. It appears that Trump & Co’s rhetoric is driven largely by xenophobia and the belief that it wins elections.

Philip Bump in the Washington Post also pointed out that there is good reason to doubt the honesty of Trump’s attempt to link homicide rates in Chicago with undocumented migration. https://www.washingtonpost.com/news/politics/wp/2017/04/26/trumps-attempt-to-link-illegal-immigration-to-chicagos-homicide-problem-is-extremely-tenuous/?utm_term=.1916c1e4aa17

PWS

04-26-17

AMERICAN GULAG: NGOs Fear Administration’s Planned Detention Empire Will Be Deadly!

http://www.huffingtonpost.com/entry/trump-immigrant-detention_us_58f0e2b7e4b0bb9638e34621

Elise Foley reports in HuffPost:

“WASHINGTON ― Human rights advocates spent years fighting for even small improvements to the system that detains men, women and children waiting to be either deported or released back into the U.S. Now they fear the progress they have made could disappear under President Donald Trump, who has promised harsher treatment of undocumented immigrants.

“This administration is prepared to make conditions at immigrant detention even worse than they already are, which, given that for some people they’re already fatal, is terrifying,” said Mary Small, policy director of the advocacy group Detention Watch Network.

Trump’s Department of Homeland Security is considering looser regulations for new contracts with jails to hold immigrants in deportation proceedings, The New York Times reported earlier this month. That agreement would allow jails to treat immigrants detained for civil offenses the same way they treat people charged with crimes.

The department also plans to eliminate an office at Immigration and Customs Enforcement that focuses on improving the detention system and to ramp up detention and deportation efforts.

Trump’s boosters consider these to be good things ― earlier this month, hosts on “Fox & Friends” gleefully remarked that the “party’s over” at immigrant detention centers, grumbling about detainees being given clean sheets and outdoor recreation time.

In reality, immigrant detention centers ― some of which are inside jails facilities or former prisons ― are bleak places. Inmates report being denied medical care, held in solitary confinement, given inedible food and other mistreatment. This is all on top of the struggle of being locked up, often far from family and legal help.

There’s always a tension between ‘Do we get rid of the cage or do we make a better cage?’Ruthie Epstein, formerly of Human Rights First

The facilities are supposed to be for civil detention, not criminal detention like a prison ― being in the country without authorization is not in itself a crime. Advocates are concerned that the Trump administration’s discussion of new contracts for jails to detain immigrants is more proof that officials will disregard standards meant to make immigrant detention less punitive.

Chris Daley, an attorney with Just Detention International, said his group is “very afraid” those standards aren’t going to be enforced and that “we’re just going to lose any sense that folks are not there under criminal charges.”

. . . .

“If ICE is no longer tracking the use of solitary confinement or no longer requiring that people who are in mental health crisis are checked on every 15 minutes, that can kill,” said Carl Takei, an attorney with the American Civil Liberties Union’s National Prison Project.

It would be difficult for ICE to dismiss the standards set forth in the Prison Rape Elimination Act because they are regulations. But weakening other standards would hurt PREA’s effectiveness, Daley said.

“You can’t have effective sexual abuse prevention programs if you have folks who don’t have access to appropriate materials in the right language; who can’t communicate concerns they have about threats or violence; who are just held in solitary confinement as a matter of course or who otherwise are just being treated in a demeaning way that compromises their dignity,” he said.

ICE hasn’t made any major changes yet, other than eliminating its Office of Detention Policy and Planning. The office’s staff and mission will be absorbed into other parts of the agency, according to ICE spokeswoman Sarah Rodriguez.

Officials are “examining a variety of detention models to determine which models would best meet anticipated detention needs” as part of one of Trump’s executive orders on immigration, Rodriguez said. “As new options are explored, ICE’s commitment to maintaining excellent facilities and providing first class medical care to those in our custody remains unchanged.”

The new contracts could be evaluated based on a checklist from the U.S. Marshals Service, The New York Times reported last week. That checklist is “ridiculous in its lack of detail,” Takei said. The contracts wouldn’t specify what policies jails holding immigrants must maintain for medical health, suicide prevention or solitary confinement, other than that they need to have some sort of policy, according to the Times.

Advocates are bracing for the worst.

“We’ve seen important but very incremental change, so to see change that’s taken so long to come about ― and that still had gaps but that was at least a step toward greater accountability and toward better conditions in these facilities ― to see that now be threatened to be reversed is troubling,” said Katharina Obser, senior program officer at the Women’s Refugee Commission.

They will be watching closely for human rights violations, from detainees being denied due process to poor conditions and even increased deaths in detention.

“These policies are a recipe for a human rights catastrophe in immigrant detention,” Takei said, “and we are prepared to sue as soon as that human rights catastrophe comes to pass.”

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Of course, an unstated reason for purposely allowing immigration detention conditions to deteriorate is to discourage migrants from 1) coming to the U.S. to seek refuge, 2) making claims for refuge, and 3) continuing to pursue those claims.

By locating U.S. Immigration Courts in private prisons and local facilities in obscure locations where counsel are not available, the Department of Justice purposely erodes due process for the purpose of making the courts part of the enforcement, deterrence. deportation mechanism.

At some point, the Article III Courts will have to decide how much of this unseemly travesty of justice they are willing to allow.

PWS

04-26-17

PRECEDENT: BIA Opines On “Divisibility” In Agfel Cases — Matter of CHAIREZ-CASTREJON, 27 I&N Dec. 21 (BIA 2017)

https://www.justice.gov/eoir/page/file/959656/download

Here’s the BIA headnote:

“In determining whether a statute is divisible under Mathis v. United States, 136 S. Ct. 2243 (2016), Immigration Judges may consider or “peek” at an alien’s conviction record only to discern whether statutory alternatives define “elements” or “means,” provided State law does not otherwise resolve the question.”

PANEL: Appellate Immigration Judges Pauley, Greer, Malphrus

OPINION BY: Judge Pauley

CONCURRING OPINION BY: Judge Malphrus

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This case is unusual because BIA Judges seldom file “separate opinions” in published decisions these days.

In his concurring opinion, Judge Garry D. Malphrus appears to be both questioning whether the Supreme Court’s approach to statutory “divisibility” analysis comports with congressional intent in immigration matters and inviting Congress to perhaps change the INA so that the BIA and the Immigration Judges could examine the facts of the case, as set forth in the record of conviction, to determine whether the individual should be removed. Judge Malphrus says in his conclusion:

“Here, we must presume that the respondent committed the least of the acts criminalized within the range of conduct punishable under his statute of conviction. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013). This is true even though the respondent’s plea agreement indicates that he did more—specifically, that he knowingly discharged a firearm at another, and thus he committed an aggravated felony crime of violence. See id.

The approach to divisibility required by Descamps and Mathis will result in immigration proceedings being terminated for many aliens who have committed serious crimes in the United States. See, e.g., Ramirez v. Lynch, 810 F.3d 1127, 1134–38 (9th Cir. 2016) (reversing the order of removal upon concluding that the California statute proscribing felony child abuse was not divisible, and thus it was improper to consider the conviction records in determining whether the alien’s conviction constituted an aggravated felony crime of violence). [footnote omitted]. It is for Congress to determine whether this approach is consistent with its intent regarding the immigration consequences of such criminal conduct.”

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Another observation: How could an unrepresented respondent charged under this section possibly defend himself consistent with due process when the law is so complex and convoluted. This particular respondent was fortunate enough to have a lawyer, and as we can see, he was able to achieve a favorable result. But, recent studies have shown that the overwhelming number of respondents in detention (as individuals charged as “agfels” must be) must proceed without counsel. http://wp.me/p8eeJm-Gv

PWS

04-24-17

Is Jeff Sessions About To Go After Tax Credits For U.S. Citizen Kids To Fund “The Wall?” — Sessions’s Motives Questioned — CA Girds For Legal Battle With USDOJ! — Trump Administration Fuels Federal Civil Litigation Bonanza!

http://theweek.com/speedreads/694129/sessions-says-mexicans-pay-border-wall-way-another

Bonnie Kristian reports in TheWeek.com:

“We’re going to get paid for it one way or the other,” Attorney General Jeff Sessions said of President Trump’s proposed border wall while speaking with ABC’s George Stephanopoulos on Sunday. After raising the issue, Stephanopoulos asked if Sessions has any evidence Mexico will fund construction, as Trump repeatedly promised on the campaign trail.

Sessions conceded he does not expect the government of Mexico to “appropriate money,” but maintained the United States has other options to get money from Mexicans. We could “deal with our trade situation to create the revenue,” he suggested, or, “I know there’s $4 billion a year in excess payments,” Sessions continued, “tax credits that they shouldn’t get. Now, these are mostly Mexicans. And those kind of things add up — $4 billion a year for 10 years is $40 billion.”

Sessions appears to be referencing a 2011 audit report Trump also cited while campaigning. As Politifact explains, the report said that in 2011, $4.2 billion in child tax credits was paid to people filing income taxes using an Individual Taxpayer Identification Number (ITIN) instead of a Social Security number. Some of these filers are illegal immigrants, but many are legal foreign workers, and the audit did not say how many are Mexican.

“The vast majority of that $4.2 billion, the filer may be undocumented, but you have to have a child to receive it,” said Bob Greenstein of the Center on Budget and Policy Priorities. “And the children are overwhelmingly U.S. citizens.” Watch an excerpt of Sessions’ remarks below. Bonnie Kristian”

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Go to the above link to see the ABC clip that Kristian references at the end of her article.

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Reaction from Daily Kos wasn’t very subtile. Here’s Gabe Ortiz’s “headliner:”

“Racist-as-all-hell Sessions: Child tax credits going to ‘mostly Mexicans’ can pay for the wall”

Read Ortiz’s article here:

http://www.dailykos.com/story/2017/04/24/1655786/-Racist-as-all-hell-Sessions-Tax-credits-to-mostly-Mexicans-can-pay-for-the-wall

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Ortiz isn’t the only one to publicly “call out” Sessions’s motivation for his almost daily attacks on immigrants. Here’s what California State Senate leader Kevin de Leon (D-Los Angeles) had to say, as reported in the L.A. Times: “It has become abundantly clear that Atty. Gen. [Jeff] Sessions and the Trump administration are basing their law enforcement policies on principles of white supremacy — not American values. . . .”

Read the full L.A. Times article, including Republican reaction to de Leon’s remarks, here:

http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-california-senate-leader-says-white-1492803106-htmlstory.html?utm_source=Politics&utm_campaign=b41d4376f3-EMAIL_CAMPAIGN_2017_01_03&utm_medium=email&utm_term=0_db59b9bd47-b41d4376f3-81147225

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De Leon was not the only California public official to strike back at Sessions’s attack on so-called “Sanctuary cities” last week. As reported in the L.A. Times, in a “Battle of the AGs:”

“[California Attorney General Xavier] Becerra said on Friday that threats to withhold federal funds from states and cities that limit cooperation with federal immigration authorities are reckless and undermine public safety.

. . . .

Becerra said Sunday that California is ready to fight any attempt to withhold federal funds.

“Whoever wants to come at us, that’s hostility, we’ll be ready,” Becerra said. “We’re going to continue to abide by federal law and the U.S. Constitution. And we’re hoping the federal government will also abide by the U.S. Constitution, which gives my state the right to decide how to do public safety.”

The state attorney general was skeptical about comments by President Trump in recent days that so-called Dreamers —young immigrants brought to this country illegally by a parent — will not be targeted for immigration enforcement.

“It’s not clear what we can trust, what statement we can believe in, and that causes a great deal of not just anxiety, but confusion — not just for those immigrant families, but for our law enforcement personnel,” Becerra said.

He also denounced the Trump proposal to build a wall at the U.S.-Mexico border as a “medieval solution” to immigration issues, adding that neither U.S. taxpayers nor Mexico want to pay for the proposal.”

Read there full report here:

http://www.latimes.com/politics/essential/la-pol-ca-essential-politics-updates-u-s-atty-gen-sessions-disputes-1492964508-htmlstory.html?utm_source=Politics&utm_campaign=b41d4376f3-EMAIL_CAMPAIGN_2017_01_03&utm_medium=email&utm_term=0_db59b9bd47-b41d4376f3-81147225

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I reported some time ago that California was “lawyering up” by hiring none other than former U.S. Attorney General Eric Holder to advise on litigation strategies to resist the Fed’s efforts to punish “sanctuary jurisdictions.” Here’s a link to my earlier blog: http://wp.me/p8eeJm-4w.

Lots of Attorneys General and former Attorneys General could be involved in this one before it’s over! As I’ve said from the beginning, whatever he might do for U.S. workers, President Trump is a huge boon to the legal industry! If you doubt this, just go on over to TRAC Immigration and see how civil immigration litigation has increased dramatically under Trump. http://trac.syr.edu/immigration/reports/467/ . (Thanks to Nolan Rappaport for forwarding this to me!)

Instead of solving legal problems, it appears that A.G. Jeff “Gonzo-Apocalypto” Sessions is fixated on going to war with the “other America” that doesn’t share his and Trump’s negative views of immigrants. Stay tuned!

PWS

04-24-17

TIME: Jeannette Vizguerra, Undocumented Activist, Named One Of The World’s 100 Most Influential People! Guess Who DIDN’T Make The List (Hint, Donald Trump, Of Course, Was On It)!

http://time.com/collection/2017-time-100/4736271/jeanette-vizguerra/

America Ferrera, Emmy-winning actor, producer and activist, profiles American heroine Vizguerra:

“Some families have emergency plans for fires, earthquakes or tornadoes. Jeanette Vizguerra’s family had an emergency plan for a dreaded knock at the door. If U.S. Immigration and Customs Enforcement officials came to her home, her children knew to film the encounter, alert friends and family and hide in the bedroom. The Vizguerra family lived in terror of being ripped apart by deportation.

Jeanette moved to the U.S. to be a janitor, working as an outspoken union organizer and building her own company before becoming an advocate for immigration reform—a bold and risky thing for an undocumented immigrant. After fighting off deportation for eight years, she decided to go public with her story and sought refuge in the basement of a Denver church.

The current Administration has scapegoated immigrants, scaring Americans into believing that undocumented people like Jeanette are criminals. She came to this country not to rape, murder or sell drugs, but to create a better life for her family. She shed blood, sweat and tears to become a business owner, striving to give her children more opportunities than she had. This is not a crime. This is the American Dream.”

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Among those who didn’t “make the list:” Attorney General Jeff “Gonzo-Apocalypto” Sessions and DHS Secretary John “The Parrot” Kelly.

PWS

04-23-17

JURIST: Christopher N. Lasch Says Sessions More Interested In Politics Than Justice!

http://www.jurist.org/forum/2017/04/the-political-attorney-general.php

Professor Lasch writes:

“As JURIST previously reported, Attorney General Jeff Sessions has threatened to cut Department of Justice funding to so-called “sanctuary” cities. The Attorney General’s comments during the White House press briefing on March 27, 2017, and on other occasions, demonstrate that our nation’s top law enforcement official is concerned far less with enforcing the law than with pursuing the Trump administration’s political agenda.

Ignoring the Law
Anti-sanctuary politicians like to claim that sanctuary cities defy or flout federal law. President Trump, for example, in his January 25 executive order on interior immigration enforcement, claimed that “[s]anctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States.” Echoing this, Attorney General Sessions on March 27 likewise tried to paint sanctuary policies as defying federal law. He said that the DOJ Inspector General previously “found that these policies … violate federal law.” PolitiFact rightly rated this claim “mostly false” after consulting with immigration law experts and reviewing the Inspector General’s report [PDF], which was fairly explicit in not reaching the conclusion that any particular policy violated the law.

Sessions’s inaccurate portrayal of the Inspector General’s report fits into a larger pattern of dishonesty about the law when it comes to sanctuary policies. His remarks on March 27 suggested that sanctuary policies might violate numerous federal laws. But only one specific statute has ever been cited by those (including President Trump, in his executive order, and Attorney General Sessions, in his March 27 remarks) who suggest sanctuary policies defy federal law: 8 U.S.C. § 1373.

8 U.S.C. § 1373 is a very narrow law, addressed only to prohibitions on local law enforcement sharing information with federal immigration officials concerning a person’s citizenship or immigration status. The overwhelming majority of “sanctuary” policies across the country have nothing to say about such information sharing. (San Francisco, for example, while perhaps the jurisdiction most often maligned by the anti-sanctuary campaign, takes the position that it complies with 8 U.S.C. § 1373). Instead, most policies address whether immigration “detainers” (requests by federal immigration officials for the continued detention of a state or local inmate who is otherwise entitled to release) will be accepted by local law enforcement.

Lack of compliance with detainers is what is really at stake in the current debate over sanctuary cities. We know this because while administration officials point to 8 U.S.C. § 1373 to support the claim that sanctuary policies violate federal law, they fail to discuss any claimed violations of 8 U.S.C. § 1373. Instead, they talk about jurisdictions failing to honor detainers—which is exactly where Attorney General Sessions took the conversation on March 27, trotting out the San Francisco case of Francisco Sanchez and the Denver case of Ever Valles as examples of prisoners released, despite ICE having lodged a detainer–only to be subsequently charged with murder.

We also know that detainers are what is really troubling the administration because the President’s executive order directed the Department of Homeland Security “on a weekly basis, [to] make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.” Attorney General Sessions cited this order on March 27 before turning to the Sanchez and Valles cases, claiming the DHS report showed “that in a single week, there were more than 200 instances of jurisdictions refusing to honor ICE detainer requests with respect to individuals charged or convicted of a serious crime.” The report, it turns out, was riddled with errors—”corrections” to the report issued by DHS included, for example, that Franklin County, Iowa; Franklin County, New York; and Franklin County, Pennsylvania were all erroneously listed as having declined detainers in the first report. Its issuance was discontinued after just three weeks.

Despite the obsession with declined detainers, Attorney General Sessions has in his remarks demonstrated utter obliviousness to the actual law governing detainers. On March 27, Sessions suggested honoring detainers was a “fundamental principle of law enforcement” and in February at a meeting of states’ attorneys general, Sessions called it a “shocking thing” that localities were not honoring detainers. These comments suggest unawareness of a steady stream of federal court decisions since 2014. The Third Circuit US Court of Appeals, in Galarza v. Szalczyk, established that localities cannot be compelled to honor detainers. A district court in Oregon held further that localities can be held liable for Fourth Amendment violations, given that the detention requested by federal officials amounts to a new warrantless arrest that must be justified under the Constitution. This line of precedent was sufficiently strong that the Obama administration put an end to the “Secure Communities” [PDF] program (which relied heavily on detainers) because of it.

If Sessions is aware of this body of law, he is not talking about it.

. . . .

These policy positions, however, are contradicted by all available data. Study [PDF] after study has shown that immigrants, regardless of status, commit crimes at lower rates than citizens. In the words of Michael Tonry [PDF[, “high levels of legal and illegal Hispanic immigration … [are] credited with contributing significantly to the decline in American crime rates since 1991.” And sanctuary policies have not made cities unsafe–the recent study by Tom K. Wong concludes that crime rates are lower and economic indicators are stronger in sanctuary jurisdictions.

JURIST guest columnist Ali Khan recently situated America’s current war on immigrants in global trends of nativism, racism and xenophobia. This, in my view, provides the answer to the question of what “countervailing principles” might cause Attorney General Sessions not only to ignore all available data on immigration, sanctuary, and crime, but to upend traditional Republican views on federal-versus-local control of policing. Trump’s anti-sanctuary rhetoric, I have argued [PDF], is racial rhetoric. It is part of an illogical, counterfactual, counter-legal, and highly successful political formula: Demonizing immigrants wins votes; deporting immigrants wins votes.

Sanctuary cities stand in the way of this political agenda. The Attorney General’s words and actions reveal that, when it comes to sanctuary cities, Jeff Sessions is not serving the role of chief law enforcement lawyer. He is just another politician chasing down votes for the President.”

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

Sessions’s latest threats directed against so-called “sanctuary” jurisdictions have drawn some “robust pushback:”

As Jay Croft reports in CNN:

“(CNN)Insulting.

Out of touch.

Inaccurate.

Mayors of some of the so-called sanctuary cities were not impressed Friday with the Trump administration’s latest volley in the dispute over immigration policy. The Justice Department told the local government officials to share immigration information by June 30 on people who have been arrested — or lose federal money.

‘Civil deportation force’

“If anybody in the Trump administration would actually do some research before firing off letters, they would see that the city of New Orleans has already provided the Department of Justice documentation that shows we are in compliance with federal immigration laws,” Mayor Mitch Landrieu said in a statement.

New Orleans Mayor Mitch Landrieu

“This is another example of the Trump administration acting before doing their homework. The New Orleans Police Department will not be a part of President Trump’s civil deportation force no matter how many times they ask.”

What ‘sanctuary cities’ stand to lose

He reiterated a point made by sanctuary mayors — that individuals are more likely to report crime and testify if they are not afraid of being questioned about their immigration status.

Values ‘not for sale’

Chicago Mayor Rahm Emanuel didn’t pull any punches, either.

Chicago Mayor Rahm Emanuel

“We’ve seen the letter from DOJ. Neither the facts nor the law are on their side,” Emanuel said.

“Regardless, let me be clear: Chicago’s values and Chicago’s future are not for sale.”

Emanuel’s office said Chicago wants to be seen as a “welcoming” city for immigrants.

In Chicago, $3.6 billion in federal funds are at stake, possibly jeopardizing money to pay for everything from feeding low-income pregnant women to repairing roads and bridges, according an analysis by the Better Government Association, a nonpartisan state watchdog group.

NY mayor: Not ‘soft on crime’

The Justice Department claimed illegal immigration into the country has increased crime in these cities. It called New York City “soft on crime.”

New York Mayor Bill de Blasio

That didn’t play in New York.

“I have never met a member of the New York Police Department that is soft on crime,” Mayor Bill de Blasio said.

In a statement and on Twitter, de Blasio challenged President Donald Trump and Attorney General Jeff Sessions to come to the city “and look our officers in the eye and tell them they are soft on crime.”

Spokesman Seth Stein went a step farther.

“This grand-standing shows how out of touch the Trump administration is with reality,” Stein said.

“Contrary to their alternative facts, New York is the safest big city in the country, with crime at record lows in large part because we have policies in place to encourage cooperation between NYPD and immigrant communities.”

http://www.cnn.com/2017/04/21/politics/sanctuary-cities-mayors-respond-to-administration/index.html

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

Session’s tone deaf, xenophobic approach shows little interest in effective law enforcement. Unlike Sessions, over my time at the U.S. Immigration Court in Arlington, I actually had to deal on a face to face basis with both gang members and their victims. Unlike Sessions, I have actually denied bond to and entered orders of removal against established gang members. I’ve also granted relief to victims of gang violence and watched the U.S. legal system intentionally “turn its back” on other victims in dire need of protection.

I have a daughter who as a teacher has had to deal on a day to day basis with some gang issues in the schools and the community in a constructive manner, rather than the harsh platitudes coming out of Sessions’s mouth.

From my perspective, a credible effort to reduce gang violence in the U.S. would require:

1) confidence and close cooperation with the migrant communities across the U.S. (for example, the Northern Virginia Regional Gang Task Force, established with the help of Congress and the efforts of former Rep Frank Wolf has a much more nuanced and potentially effective “multi-faceted” approach to gang violence than the “talk tough, threaten, blame immigrants” approach Sessions is purveying; many of the gang-related cases I got at the Arlington Immigration Court stemmed from the efforts of the Task Force working positively in immigrant communities);

2) a sound voluntary working relationship with local police, community activists, and school officials that concentrates on reducing violent crime and making young people feel included and valued, not focused on “busting” undocumented migrants,

3) recognition that while deportations of gang leaders and members who are not U.S. citizens might be necessary, it will not solve the problem (indeed, since gangs control many of the prisons in Central America and have also have compromised the police and the some government officials, removal to, or even imprisonment in, the Northern Triangle is akin to a “corporate reassignment” for gang members);

4) an acknowledgement that U.S. deportations are what basically started, and then fueled, the “gang crisis” in Central America — MS-13 was actually “Born in the U.S.A.” (with apologies to Bruce — L.A. to be exact) and “exported” (or perhaps more properly “deported”) to El Salvador after the end of the civil war; and

5) a program of at least temporary refuge for those fleeing gang violence in the Northern Triangle, many of whom now are effectively being told by the U.S. that joining gangs or giving in to their demands for extortion or assistance represents their only realistic chance of survival.

A long-term program to address the problems of gangs, drugs, violence against women, endemic public corruption, poor education, substandard health care, and gross economic inequality at the “point of origin” in the Northern Triangle is also needed, along with cooperative programs to encourage other stable countries in the Americas, such as Canada, Mexico, and Costa Rica to share the responsibility of providing at least “safe haven” to those fleeing the Northern Triangle.

Our current national policies, and particularly the ones advocated by Sessions and parroted by Secretary Kelly, actually appear likely to further the power and influence of gangs rather than curbing it. Indeed, as fear and distrust of our Government and the police spreads in migrant communities throughout the U.S., the power, protection, and authority of criminal gangs in the community is almost certainly going to be enhanced.

I think it’s also useful to “keep it in perspective.”Although the power of individual gangs has ebbed and flowed with time, gangs are a well-established historical phenomenon. Indeed, at least one historian has pointed to continuous battles between warring barons and their respective knights as the antecedents of today’s criminal gangs: ruthless, violent, structured on loyalty and fear, greedy, and insatiable. The United States probably does as good a job as any country of dealing with and controlling gang violence. But, it’s unlikely that even we are going to be able to completely eliminate it, any more than we will be able to completely eradicate crime.

PWS

04-22-17

Trump “Channels A.R.” — Tells “Dreamers” To R-E-L-A-X, Nothing Bad Is Going To Happen — But, Should They Believe Him? — Sessions Has A Different Message: Nobody Is Protected!

https://apnews.com/85c427bf25c747ce85d837caccd90648

Julie Pace reports for AP:

“WASHINGTON (AP) — Young immigrants brought to the U.S. as children and now here illegally can “rest easy,” President Donald Trump said Friday, telling the “dreamers” they will not be targets for deportation under his immigration policies.

Trump, in a wide-ranging interview with The Associated Press, said his administration is “not after the dreamers, we are after the criminals.”

The president, who took a hard line on immigration as a candidate, vowed anew to fulfill his promise to construct a wall along the U.S.-Mexico border. But he stopped short of demanding that funding for the project be included in a spending bill Congress must pass by the end of next week in order to keep the government running.

. . . .

As a candidate, Trump strongly criticized President Barack Obama for “illegal executive amnesties,” including actions to spare from deportation young people who were brought to the country as children and now are here illegally. But after the election, Trump started speaking more favorably about these immigrants, popularly dubbed “dreamers.”

On Friday, he said that when it comes to them, “This is a case of heart.”

This week, attorneys for Juan Manuel Montes said the 23-year-old was recently deported to Mexico despite having qualified for deferred deportation. Trump said Montes’ case is “a little different than the dreamer case,” though he did not specify why.

The Deferred Action for Childhood Arrivals program was launched in 2012 as a stopgap to protect some young immigrants from deportation while the administration continued to push for a broader immigration overhaul in Congress.

Obama’s administrative program offered a reprieve from deportation to those immigrants in the country illegally who could prove they arrived before they were 16, had been in the United States for several years and had not committed a crime since being here. It mimicked versions of the so-called DREAM Act, which would have provided legal status for young immigrants but was never passed by Congress.

DACA also provides work permits for the immigrants and is renewable every two years. As of December, about 770,000 young immigrants had been approved for the program.”

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

Meanwhile, back at the ranch, “Fear Monger in Chief” Jeff Sessions had a somewhat less reassuring message for young people and their families:

As reported by Ted Hesson in Politico:

“Attorney General Jeff Sessions could not promise that so-called Dreamers, or participants in the Deferred Action for Childhood Arrivals program, will not be deported, when he was interviewed Wednesday morning on Fox News.

Sessions fielded questions from host Jenna Lee about an undocumented immigrant who claims he was deported to Mexico despite his enrollment in the program, which was created through administrative action during the Obama administration.

The program allows undocumented immigrants brought to the U.S. at a young age to apply for deportation relief and work permits. In a federal lawsuit filed Tuesday, Juan Manuel Montes, a 23-year-old enrollee in the program, claimed he was sent to Mexico in February despite active DACA status.

“DACA enrollees are not being targeted,” Sessions said on Fox. “I don’t know why this individual was picked up.” But when pressed, Sessions said, “The policy is that if people are here unlawfully, they’re subject to being deported.”

“We can’t promise people who are here unlawfully that they’re not going to be deported,” Sessions added.”

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

Neither Trump nor Sessions, or for that matter anyone else in the Trump Administration, has much credibility on anything, particularly immigration policy. In reality, however, it appears that very few, if any, “Dreamers” have actually been removed.

The facts of the “Montes case” are still rather murky. He appears to have reentered the U.S. illegally, which generally would subject even a green card holder to removal. Montes reportedly is asserting an earlier “illegal removal” to Mexico. But, even if proved, that wouldn’t necessarily justify an illegal return. We’ll have to see how this case “plays out” in Federal Court, before the same judge who had the “Trump University” case.

But, the situation seems unusual enough that I would not draw any conclusion that it represents a policy change. Indeed, most “Dreamers” of whom I am aware do not actually have “final orders of removal.”

If they had pending U.S. Immigration Court cases, such cases were “administratively closed” and removed from the docket. Removal of such a “former Dreamer” would require the DHS to submit a “motion to re-calendar” to the U.S. Immigration Judge.

Once re-calendared, the case would proceed in the “normal manner,” whatever that might mean in the zany world of today’s U.S. Immigration Court. Generally, however, if the “former Dreamer” were not detained, he or she would go to the “end” of the 542,000 pending cases.

In most Immigration Courts, that would mean an “Individual Hearing” date after 2020, the end of Trump’s first term. And, as I have pointed out before, absent some “smart reforms” of the Immigration Court by Congress or the Administration to restore sanity and an emphasis on due process, the 125 new U.S. Immigration Judges proposed by Sessions will not eliminate the docket backlog at any time in the near future.http://wp.me/p8eeJm-Jf

However, notwithstanding what sometimes is called “Docket TPS,” former Dreamers could face another major obstacle: lack of “employment authorization” which was included in the DACA program. Without such authorization, continuing employment could cause major legal problems for both former Dreamers and their U.S. employers.

One possible solution would be for the “former Dreamer” to file an application for immigration benefits that carries with it the opportunity to qualify for a new employment authorization. The most likely application is probably asylum, although some who have never previously been in Removal Proceedings might also qualify to file for “cancellation of removal” or other forms of regularization of status.

Indeed, many of the dreamers who were on my docket when DACA was granted by USCIS had asylum applications pending, either on their own or as a dependent on a parent’s or spouse’s application, at the time the case was “administratively closed” and removed from my docket. The complexity of individual situations makes the prospect of mass removal of Dreamers even more unlikely.

Stay tuned!

PWS

04-22-17

REUTERS: Mica Rosenberg Reports On Trump’s “Under The Radar” Plan To Bar “Freedom Fighters” & “Victims Of Terrorism” From The U.S.!

http://www.reuters.com/article/us-usa-immigration-terrorism-exceptions-idUSKBN17N13C

Mica and Yegenah Torbati report:

“Now the Trump administration is debating whether to rescind the waivers that have allowed Raj, and tens of thousands of others, to immigrate to the United States in the past decade (See graphic on waivers: tmsnrt.rs/2oPssIo). Some immigration hardliners are concerned the exemptions could allow terrorists to slip into the country.

U.S. President Donald Trump directed the secretaries of State and Homeland Security, in consultation with the attorney general, to consider abolishing the waivers in an executive order in March. That directive was overshadowed by the same order’s temporary ban on all refugees and on travelers from six mostly Muslim nations.

The bans on refugees and travel were challenged in lawsuits, and their implementation has been suspended pending full hearings in court. But the waiver review was not included in the court rulings, so that part of the order remains in effect.

Rules governing the waivers have been hammered out over the last decade with both Democratic and Republican support. But in recent years they have drawn fire from some conservative lawmakers, including Attorney General Jeff Sessions when he was a senator.

A State Department official said this week the department is working with DHS to review the waivers and is “looking at actually pulling them back in accordance with the executive order.”

The official, who spoke on condition of anonymity, declined to give details on the timing of the review or its likely outcome. The Department of Justice declined to comment.

KURDS, KAREN, HMONG

Following the Sept. 11, 2001 attacks, Congress expanded the definition of who could be considered a terrorist and what constituted “material support” to terrorism in rules now known as the Terrorism Related Inadmissibility Grounds.

Those changes ensnared people like Raj who were coerced or inadvertently provided support to terrorists, as well as members of persecuted ethnic groups that supported rebel organizations, and even U.S.-allied groups fighting against authoritarian regimes.

Without an exemption, members of Kurdish groups that battled Saddam Hussein’s forces in Iraq, Hmong groups who fought alongside U.S. troops in Vietnam, or some Cubans who fought Fidel Castro’s regime would not be allowed to immigrate to the United States.

Under the exemptions, U.S. authorities have the discretion to grant people residency in the United States after they have passed background checks and are found to pose no threat to national security.

Congress initially passed waivers to the terrorism bars in 2007 with bipartisan support, and in the years that followed both the Bush and Obama administrations added additional groups and circumstances to the exemptions.

“PHANTOM PROBLEM”

U.S. Citizenship and Immigration Services (USCIS) has granted nearly 22,000 TRIG exemptions in total over the last decade, according to the latest data available, which goes through September 2016. The State Department also grants TRIG exemptions, but a spokesman could not provide data on how many.

Refugees from Myanmar are the largest single group of beneficiaries to date of TRIG exemptions granted by USCIS, with more than 6,700 waivers.

The wave of Myanmar refugees dates to 2006, when U.S. Secretary of State Condoleezza Rice ruled that thousands of members of the Karen ethnic group, then living in a camp in Thailand, could resettle in the United States, even if they had supported the political wing of an armed group that had fought the country’s military regime.

One high-profile supporter of scrapping the waivers is House of Representatives Judiciary Committee Chairman Bob Goodlatte, a Republican from Virginia whose staffers were instrumental in drafting Trump’s travel ban. Goodlatte told Reuters he was “pleased that the Trump Administration is reviewing the dangerous policy.”

Groups favoring stricter immigration laws have also applauded the review. Rosemary Jenks, director of government relations at NumbersUSA, called the waivers “a potential security risk.”

“I personally don’t think that a bureaucrat should be deciding how much support for terrorism is enough to be barred,” she said.

A USCIS spokeswoman, when asked if a recipient of an exemption had ever been involved in a terrorism-related case after arriving in the United States, referred Reuters to the Federal Bureau of Investigation, which said it was a question for the State Department to answer.

“I don’t know of any cases where beneficiaries of exemptions have gotten into trouble after arriving,” the State Department official said, noting that the department does not typically track people after they arrive in the United States.

Trump’s order to review the waivers “is another example of an attempt to address a non-existent phantom problem,” said Eric Schwartz, who served in the State Department during the Obama administration.

Schwartz and immigration advocates say the waivers are granted after lengthy review and are extremely difficult to get.

“These are case-by-case exemptions for people who represent no threat to the United States but rather have been caught in the most unfortunate of circumstances,” said Schwartz.

For Raj, the initial ruling that his ransom payment supported a terrorist group led to more than two years in U.S. immigration detention, followed by more years of electronic monitoring. His waiver allowed him to bring his wife to the United States after nine years apart. She now studies nursing.

(Reporting by Mica Rosenberg in New York and Yeganeh Torbati in Washington; Additional reporting by Julia Edwards in Washington and Kristina Cooke in San Francisco; Editing by Sue Horton and Ross Colvin)”

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

Just to illustrate the lunacy of the already over-broad definition of “terrorist,” all of our “founding fathers” would be “terrorists” under this definition.

I heard a number of so-called”terrorist cases” over my time as a trial judge at the Arlington Immigration Court. A few of the folks on the detained docket (during the years I was assigned to that docket) might have potentially been dangerous.

But, most so-called “terrorists” were basically harmless individuals who actually appeared on my non-detained docket even during the “last years” when I was handling the “non-priority docket” (which was actually the overwhelming majority of cases at Arlington).

Most were folks who had supposedly provided “material support” like giving a ride to a rebel who commandeered the respondent’s car at gun point, carrying supply bags a few miles for guerrillas under threat of death, allowing rebels to ransack the family kitchen at gunpoint (sometimes called the “taco rule”), or giving money to a dissident group that was actually being supported by the U.S. in a battle against an oppressive government” (otherwise referred to as “freedom fighters”).

Most of them had lived in the U.S. for years without incident and were stunned to find out that being a victim of terrorism or helping a dissident group that the U.S. supported could be a bar to immigration. For example, anyone assisting rebels in the fight against the Assad Government or against ISIS would be considered a “terrorist” by our definition. And, ask yourself, why would any “real” terrorist have appeared on my non-detained, non-priority docket?

Of course, as a mere Immigration Judge I could not grant the “waiver” discussed in Mica’s article. But, I was required to make essentially an “advisory holding” that “but for” the “terrorist bar” I would have granted the respondent’s application.

I am aware that some of the cases I handled were referred to USCIS by the Office of Chief Counsel (the respondent can’t initiate the waiver process on her or his own) and eventually granted. Thereafter, I “vacated” on “joint motion” the removal order I had previously entered against the respondent. The whole process seemed convoluted.

Just another example of how the xenophobes in the Trump Administration are wasting time and taxpayer money making an already bad situation even worse.

A further example of how pointless the “terrorist bar” is in it’s current form: many of the individuals covered by the bar would also be entitled to “Deferral of Removal” under the Convention Against Torture (“CAT”). The “terrorist bar” can’t be applied to “CAT deferral.” Therefore, individuals who are denied asylum but qualify for CAT deferral can’t be removed from the country. In effect, all that the terrorist bar does in such cases is keep individuals who are no threat to the U.S. in “limbo,” rather than allowing them to regularize their immigration status.

PWS

04-21-17

LA TIMES: Immigration Courts Not Only “Broken Piece” Of Trump’s Removal Regime — DHS Can’t Keep Up With Removals Even Now! — “Haste Makes Waste” Rush To Hire More Agents Likely To Dilute Standards, Threaten National Security!” — New IG Report Blasts Current Practices!

http://www.latimes.com/politics/la-na-pol-ice-oig-20170420-story.html

Joseph Tanfani reports:

U.S. Immigration and Customs Enforcement, hampered by poor organization and an overworked staff, will have trouble keeping up with the Trump administration’s plans to ramp up deportations of people in the country illegally, government inspectors have concluded.

ICE has “overwhelming caseloads,” its records are “likely inaccurate” and its deportation policies and procedures “are outdated and unclear,” said a report released Thursday by the inspector general of the Homeland Security Department.

“ICE is almost certainly not deporting all the aliens who could be deported and will likely not be able to keep up with the growing number of deportable aliens,” the 19-page report concludes.

The harsh assessment is the latest dash of cold reality for Trump, who was swept into Washington promising vastly tougher enforcement of immigration laws, including more removals, thousands more Border Patrol agents and deportation officers, and construction of a formidable wall on the U.S.-Mexico border.

. . . .

An internal memo in February from Kevin McAleenan, acting director of Customs and Border Protection, revealed that Border Patrol was able to vet and hire only about 40 agents a month last year despite aggressive efforts to streamline the hiring process.

Reports this year that Customs and Border Patrol might stop using polygraph tests, intended to ferret out unqualified agents, drew a storm of criticism. So did the reason: Two out of three new applicants had failed the lie detector.

The agency first required polygraph tests for prospective employees in 2012 after an Obama-era hiring surge led to a sharp increase in agents getting charged or arrested for bribery, drug smuggling and other crimes on or near the border.

Moreover, the Border Patrol — the nation’s largest federal law enforcement agency — has more than 2,000 jobs empty even before a Trump-led hiring surge. The force fell below 20,000 agents this year for the first time since 2009, when Obama came to office.

Homeland Security Secretary John F. Kelly said Sunday that Customs and Border Protection would continue to use the polygraph as a hiring tool, although he added that the agency was considering changes to make the process less “arduous.”

. . . .

Moreover, the latest report from the inspector general’s office at Homeland Security said ICE agents, who are supposed to identify, detain and deport people in the country illegally, are ill-equipped to monitor those on their caseloads.

ICE tries to keep track of about 2.2 million foreigners who are not in jail, including more than 368,000 convicted criminals, the report said. Some officers have more than 10,000 cases, the report said, criticizing agency officials for not managing the problem.

“Although many ICE deportation officers … reported overwhelming caseloads and difficulty fulfilling their responsibilities, ICE does not collect and analyze data” that could be used to ease the pressure.

In one office, according to the report, officers complained that they had to manage so many thousands of cases that they couldn’t keep track of some migrants who had been flagged as risks to national security.

The report faulted ICE for insufficient training and failing to issue “up-to-date, comprehensive and accessible” guidelines on deportation. Resolving the failures, it said, “may require significant time and resources.”

“These management deficiencies and unresolved obstacles make it difficult for ICE to deport aliens expeditiously,” it said.

. . . .

Randy Capps, research director at the Migration Policy Institute, a nonpartisan think tank, said the Trump administration may have promised more than it can deliver given the systemic problems.

“Sooner or later, they are going to have to narrow down [deportation priorities] or the system is going to be overwhelmed,” he said. “That’s certainly what the Obama administration found. There’s a certain size past which the system is very hard to manage efficiently.”

I think Randy Capps has it exactly right. The system is not “infinitely expandable.” That’s also true of the U.S. Immigration Court system. At some point, reasonable priorities will have to be set. With perhaps as many as 12 million undocumented residents in the U.S., we simply can’t have line agents arresting anyone who “might” be removable.

Seems like it’s high time for some bipartisan congressional oversight of what we taxpayers are getting for our dollars over at the DHS. I say this acknowledging that over the years I have been impressed with the individual talent and dedication of the vast majority of DHS (and “Legacy INS”) employees I have come in contact with in my various “lives” in immigration law. But, management, mission focus, technology problems, and communications difficulties have always been agency-wide issues that in some ways make “the whole less than the sum of its parts.” Sure seems that it would be better to get these problems fixed before adding lots of “new parts.”

PWS

04-21-17

THE ATLANTIC: Priscilla Alvarez Exposes Nation’s Largest Failing Court System: U.S. Immigration Court — Quoting Me: “A fully trained judge, which new judges won’t be, can do about 750 cases a year. So 125 new judges could do fewer than 100,000 cases a year once they’re up and trained, . . . .” — No Amount Of Resources Can Overcome Screwed Up Priorities, Political Meddling, & Management Problems Inherent In The Current “Designed To Fail” System — Due Processes Takes A Back Seat!

https://www.theatlantic.com/politics/archive/2017/04/trump-immigration-court-ice/523557/

Priscilla writes in an article that also contains quotes from highly respected DC area immigration practitioner Dree Collopy (emphasis added in below excerpt):

“Responding to the 2014 migrant wave, the Obama administration temporarily redirected immigration judges to the southern border to preside over removal proceedings and bond hearings, and review whether any individuals’ claims of fear of persecution were credible. Immigration cases being heard in other parts of the United States had to be put on hold, said Jeremy McKinney, an attorney and board member of the American Immigration Lawyers Association. “The surge was the first time we saw a deployment of immigration judges to the border, resulting in non-detained dockets in the United States getting much worse,” McKinney said, referring to cases that do not require detention. “That situation already put a strain on the interior immigration courts.”

The Justice Department, which hires judges for immigration courts, was also tied up by the budget sequester from 2011 to 2014, so there weren’t enough judges to try cases, he added. Over time, the backlog grew from around 327,000 cases at the end of the 2012 fiscal year to half a million in 2016.

Judge Paul Schmidt, who was appointed in 2003 by Attorney General John Ashcroft, had around 10,000 immigration cases pending when he left his job last year. “When I retired, I was sending cases to 2022,” he told me. Schmidt, who primarily served in the Arlington Immigration Court in northern Virginia, was assigned to those not considered a priority—say, people who had traffic violations. The current national backlog, Schmidt said, largely consists of cases like the ones he handled.

The Trump administration has taken steps that could quicken the courts’ work. For one, ICE officers can now deport someone immediately, without a hearing, if they fit certain criteria and have lived in the United States for up to two years. Under the last administration, that timeline was up to two weeks, and the individual needed to be within 100 miles of the border.

Attorney General Jeff Sessions also announced, in a speech on the Arizona-Mexico border, that the Department of Justice will add 125 immigration judges to the bench over the next two years: 50 this year and 75 in 2018. He urged federal prosecutors to prioritize the enforcement of immigration laws. “This is a new era. This is the Trump era,” Sessions said. “The lawlessness, the abdication of the duty to enforce our immigration laws, and the catch-and-release practices of old are over.”

“You have to give Sessions credit for this,” Schmidt said. “He took note of the 18-to-24-month cycle for filling judges and said he was going to streamline that.” The math still doesn’t exactly work out, however. “A fully trained judge, which new judges won’t be, can do about 750 cases a year. So 125 new judges could do fewer than 100,000 cases a year once they’re up and trained,” he said. Factor in the fact that it takes up to two years to become “fully productive,” he said, and altogether, it could take five to six years for the 125 new judges to cut down the backlog.

All the while, new cases will continue to come in as the administration enforces its new, broader policies on deportation. Newly detained individuals will be prioritized over other cases, which will be pushed further down the road. “I think it has a particular impact on asylum-seekers, because the sense of being in limbo really seems to prolong their trauma and their sense of statelessness that they have,” said Dree Collopy, an immigration lawyer in Washington, D.C. And hearing delays can affect asylum-seekers’ credibility, as well as evidence to support their cases: “Over time, especially when trauma is involved, memories begin to fade.” If a person can’t testify until years after entering the United States, “that can obviously cause problems.”

When Collopy first started practicing immigration law in 2007, cases generally would take about a year or two to complete. That’s no longer the case: “Now, it’s taking four or five years on average,” she told me. With the Trump administration rounding up undocumented immigrants quicker than courts can process cases, that delay isn’t likely to shorten.”

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Read Priscilla’s full article at the above link.

A “smart” strategy would address the 542,000 pending cases before piling on new priorities. Under a more rational policy, those in the current backlog with equities in the U.S., “clean records,” or only minor criminal histories, could be offered “prosecutorial discretion” (“PD”) and taken off the Immigration Court’s docket to make room for higher priority cases.

However, instead of encouraging more use of PD, which was starting to make some difference by the end of the Obama Administration, the Trump Administration has basically made “everything” a potential “priority.” Moreover, as a “double whammy” the Administration has basically “disempowered” those at DHS who know the Immigration Court system the best, the local ICE Assistant Chief Counsel, from freely exercising PD to take non-criminal cases off the docket.

Ironically, at the same time, DHS appears to be giving line enforcement agents the “green light” to arrest just about anyone who might be removable for any reason. However, the line agents unlikely to understand the limitations of the current Immigration Court system and what is already “on the docket.”

The Immigration Court system is basically the opposite of most other law enforcement systems where prosecutors, rather than policemen or agents, determine what cases will be brought before the court. And, in most functioning court systems, the individual sitting judges control their own dockets, rather than having priorities set by politically-driven non-judicial bureaucrats in other places. It certainly appears to be a prescription for disaster. Stay tuned!

PWS

04-21-17

NOTE: In an earlier version of this article I “blew” Priscilla’s name by calling her “Patricia.” My apologies. I’ve now corrected it.

LA TIMES: Trump’s Hard Line Immigration Positions Fueled His Election, But Could Cause His Downfall — Restrictionists On The Wrong Side Of Public Opinion (& History) — Will “Counter-Mobilization” Match Restrictionists’ Energy & Organization At Election Time?

http://www.latimes.com/opinion/op-ed/la-oe-klinker-immigration-election-20170417-story.html

Philip Klinkner writes in an op-ed:

“Ever since he announced his presidential campaign in July 2015, Donald Trump has made opposition to immigration central to his political strategy — and pundits have debated whether this strategy was effective. He won, of course, but did he win despite his aggressive rhetoric, or because of it?

Data from the recently released American National Election Study has finally provided an answer: Immigration was central to the election, and hostility toward immigrants animated Trump voters.

Comparing the results of the 2012 and 2016 ANES surveys shows that Trump increased his vote over Mitt Romney’s on a number of immigration-related issues. In 2012 and 2016, the ANES asked respondents their feelings toward immigrants in the country illegally. Respondents could rate them anywhere between 100 (most positive) or 0 (most negative). Among those with positive views (above 50), there was no change between 2012 and 2016, with Romney and Trump each receiving 22% of the vote. Among those who had negative views, however, Trump did better than Romney, capturing 60% of the vote compared with only 55% for Romney.

Attitudes toward immigrants in the country illegally speak to why some voters switched parties between 2012 and 2016. Among those who voted in both elections but didn’t switch their vote, the average rating of immigrants in the country illegally was 42. Among those who switched from Romney to Hillary Clinton, it was 41. But those who switched their vote from President Obama to Trump were much more negative, with an average rating of only 32.

However, Trump’s support wasn’t limited to just those who oppose immigrants residing in the country illegally — he also picked up votes among those who want to limit all immigration to the United States. In 2012, Romney received 58% of the vote among those who said they think that “the number of immigrants from foreign countries who are permitted to come to the United States” should be decreased. In 2016, Trump got 74% of the vote among those who held this view.

Overall, immigration represented one of the biggest divides between Trump and Clinton voters. Among Trump voters, 67% endorsed building a southern border wall and 47% of them favored it a great deal. In contrast, 77% of Clinton voters opposed building a wall and 67 % strongly opposed it.

. . . .

Trump won in 2016 by mobilizing the minority of Americans with anti-immigration views — but only because he avoided an offsetting counter-mobilization by the majority of Americans with pro-immigration views. Now that he is president and his immigration views can’t be dismissed as mere campaign rhetoric, that counter-mobilization may finally be manifesting itself.

Widespread protests against Trump’s executive order barring individuals from several Muslim countries, congressional skepticism about the effectiveness and cost of Trump’s proposed wall, and increased awareness of the negative effect that his policies are having on U.S. businesses, schools and families suggest a growing backlash. Should that backlash develop and sustain itself, the immigration views that helped Trump in 2016 might prove to be his undoing.”

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I’ve commented that notwithstanding Trump’s outrageous statements about immigrants, and the racist, white nationalist tinge to many of his supporters’ rallies, the passion and organization of the opposition that has appeared since the inauguration seems to greatly exceed that displayed by Hillary supporters during the election, when it probably would have made a material difference in the outcome.

And, yes, racism does appear to have been a significant factor driving a portion of the Trump electorate. See this article by Thomas Wood in the Washington Post “Racism motivated Trump voters more than authoritarianism” https://www.washingtonpost.com/news/monkey-cage/wp/2017/04/17/racism-motivated-trump-voters-more-than-authoritarianism-or-income-inequality/?utm_term=.9942049017ca.

PWS

04-17-17

USA TODAY: Even Without Trump’s “Fully Enhanced” Enforcement, U.S. Immigration Courts Are Drowning In Cases — Limits On “Prosecutorial Discretion” By DHS Already Adversely Affecting Dockets!

https://www.usatoday.com/story/news/2017/04/17/immigration-courts-new-rules-trump/98674758/

Rick Jervis, Alan Gomez, and Gustavo Solis report:

“In San Antonio, an immigration judge breezes through more than 20 juvenile cases a day, warning those in the packed courtroom to show up at their next hearing — or risk deportation.

A Miami immigration lawyer wrestles with new federal rules that could wind up deporting clients who, just a few weeks ago, appeared eligible to stay.

Judges and attorneys in Los Angeles struggle with Mandarin translators and an ever-growing caseload.

Coast to coast, immigration judges, prosecutors and defense attorneys are straining to decipher how the federal immigration rules released in February by the Trump administration will impact the system — amid an already burgeoning backlog of existing cases.

The new guidelines, part of President Trump’s campaign promise to crack down on illegal immigration, give enforcement agents greater rein to deport immigrants without hearings and detain those who entered the country without permission.

But that ambitious policy shift faces a tough hurdle: an immigration court system already juggling more than a half-million cases and ill-equipped to take on thousands more.

“We’re at critical mass,” said Linda Brandmiller, a San Antonio immigration attorney who works with juveniles. “There isn’t an empty courtroom. We don’t have enough judges. You can say you’re going to prosecute more people, but from a practical perspective, how do you make that happen?”

Today, 301 judges hear immigration cases in 58 courts across the United States. The backlogged cases have soared in recent years, from 236,415 in 2010 to 508,036 this year — or nearly 1,700 outstanding cases per judge, according to the Transactional Records Access Clearinghouse, a data research group at Syracuse University.

Some judges and attorneys say it’s too early to see any effects from the new guidelines. Others say they noticed a difference and fear that people with legitimate claims for asylum or visas may be deported along with those who are criminals.

USA TODAY Network sent reporters to several immigration courts across the country to witness how the system is adjusting to the new rules.”

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Read the entire article, with reports from the Miami, Los Angeles, and San Antonio U.S. Immigration courts at the above link.

As I mentioned in the previous post, http://wp.me/p8eeJm-IG, one of the ways the Trump Administration apparently plans to deal with the U.S. Immigration Court “bottleneck” is by avoiding the court altogether through expanded use of “Expedited Removal” before DHS officers.

Additionally, Attorney General Jeff Sessions has announced plans to “streamline” the existing hiring process for U.S. Immigration Judges and to seek an additional 125 Immigration Judges over the next tow years (although those new judgeships would require congressional approval). http://wp.me/p8eeJm-Gp

PWS

04-17-17

DEPORTATION EXPRESS: U.S. Courts Appear Ready To “Green Light” Summary Removal Of Asylum Seekers Without Regard To Due Process — Advocates Striking Out In Attempts To Get Meaningful Judicial Review Of Expedited Removal — Trump Administration’s Plans To Expand Expedited Removal Likely To Deny Thousands Day In Court!

http://www.cnn.com/2017/04/17/politics/supreme-court-castro-expedited-removal/index.html

By Ariane de Vogue, CNN Supreme Court Reporter writes:

“(CNN)The Supreme Court on Monday left in place a lower court opinion rejecting claims by undocumented Central American women and children — who were apprehended immediately after arriving in the country without authorization — seeking asylum.

Lawyers for the families sought to challenge their expedited removal proceedings in federal court arguing they face gender-based violence at home, but a Philadelphia-based federal appeals court held that they have no right to judicial review of such claims.

The court’s action means the government can continue to deny asylum seekers placed in expedited removal a chance to have their cases heard by federal court.

Justice Neil Gorsuch, who has his first full week on the court starting Monday, did not participate in the decision.

The case, initially brought under the Obama administration, comes as the Trump administration has vowed to more strictly enforce immigration laws.

Originally, 28 mothers and their children entered the US border in Texas in late 2015. They were immediately placed in expedited removal proceedings. Represented by the American Civil Liberties Union, they argue they suffered “gender-based violence, including sexual assault, by men from whom they could not escape” and that they were targeted by gangs because “they are single women residing without a male household member to protect them.” They sought to challenge their removal proceedings in federal court, arguing that they did not receive substantive procedural rights to which they were entitled.

A federal appeals court ruled against the petitioners, arguing that Congress could deny review for those who have been denied initial entry into the country who were apprehended close to the border. The court essentially treated the petitioners as equal to those who arrived at the border but had not yet entered.

“We conclude that Congress may, consonant with the Constitution, deny habeas review in federal court of claims relating to an alien’s application for admission to the country, at least as to aliens who have been denied initial entry or who, like Petitioners, were apprehended very near the border and, essentially, immediately after surreptitious entry into the country,” wrote the majority of the Third Circuit Court of Appeals.

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Here’s a link to the Third Circuit’s decision in Castro v. DHS: http://www2.ca3.uscourts.gov/opinarch/161339p.pdf

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This could be the real “sleeper” in the Trump Administration’s “get tough” immigration enforcement plan. Given the 540,000+ backlog in the U.S. Immigration Courts, the Administration appears to be looking for ways to circumvent the court process entirely wherever possible.

DHS could easily change the existing regulations to “max out” so called “Expedited Removal” by DHS enforcement officers by applying it to everyone unable to establish at least two years’ continuous residence in the U.S. (Currently, the cutoff is 14 days if apprehended within 100 miles of the border.)

Even individuals who meet the two-year requirement could be subsumed in the Expedited Removal regime. Without a right to be represented by counsel, to have a full hearing before an impartial decision maker, and to appeal to the Article III Federal Courts, an individual wrongly placed in the expedited process would have little chance of avoiding summary removal without a chance to apply for relief that might be available before the Immigration Court.

While the Supreme Court’s refusal to grant certiorari in Castro is not a decision on the merits, to date no circuit has ruled in favor of the claimants. Unless and until that happens, it is unlikely that the Supremes will even consider the advocates’ arguments for at least some degree of judicial review of Expedited Removal.

PWS

04-17-17

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