Human Rights – Page 207 – immigrationcourtside.com

THE ECONOMY: What America REALLY Needs: More Legal Workers, No More “Gonzo” Immigration Enforcement — More Immigrant Workers Needed To Save Our Economy — And They Don’t Have To Be Rocket Scientists & PhDs: Construction & Service Industries That Support US Economy Need “Entry Level” Workers!

http://host.madison.com/wsj/business/wisconsin-businesses-grapple-with-a-growing-worker-shortage/article_3ef1000e-c18b-5f72-bbcd-720ee2456111.html#utm_source=host.madison.com&utm_campaign=%2Femail%2F&utm_medium=email&utm_content=26CD42536544E247751EC74095D9CEDC67E77EDB

The Wisconsin State Journal (Madison) reports:

A Madison restaurant has raised pay for entry-level chefs in recent years more than 50 percent to $14 an hour, but still closes on Sunday evenings — not because of a lack of customers, but because workers are scarce.

Those and countless other stories across Wisconsin are symptoms of a growing worker shortage that is expected to worsen over the next decade, according to Wisconsin State Journal interviews with dozens of employers, economists, advocacy group experts and state political and economic development officials.

“We are right at the brink of the crisis,” said Ann Franz, director of the Northeast Wisconsin Manufacturing Alliance in Green Bay. “There just aren’t enough human beings in Wisconsin with baby boomers retiring. Just driving down the road there are constantly signs hiring. I’ve seen them on billboards: ‘Come to our car dealership and buy our car. Come so we can give you a job.'”

Employers from a broad range of industries are reporting difficulty finding workers — and not only for skilled professionals such as nurses, welders and computer programmers, who require a strong education and training system, but also for workers with a high school diploma and some additional training at restaurants, farms, construction sites, factories, senior care facilities, retailers and other businesses.

“I would call it Wisconsin’s mega-issue,” said Kurt Bauer, president of Wisconsin Manufacturers & Commerce, the state’s largest business group, which recently found 77 percent of members surveyed had difficulty finding workers, up from 53 percent two years ago. “All other issues, they may be important, but they are subordinate to workforce.”

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Read the rest of the article at the link.

In this context, terminating DACA, thereby depriving existing productive American workers of work authorization, is not only cruel, but also crazy. And supporting the RAISE Act — specifically designed by White Nationalist restrictionists to lower legal immigration while limiting the remaining opportunities largely to White, English speaking individuals with college degrees — is simply insane.

Legal immigration is good for America in many ways (beyond the economy) and we need more, not less, of it. Indeed, had we developed a more rational and realistic legal immigration system, most of the Dreamers and their families would have been admitted in an orderly fashion under the legal system years ago.

Guys like Jeff “Gonzo Apocalypto” Sessions who worked as an effective legislative minority to block sensible immigration reform through parliamentary maneuvers, are now falsely claiming that deportations, “gonzo” arbitrary enforcement, and a reign of terror are the only solutions to a fake crisis that they largely created.

But, in fact, there is no crisis. Most of the 11 million migrants here without documentation are working hard, in jobs we need, part of American families, English speaking or learning English, and fitting well into American communities. Indeed, they are far less disruptive to society than are ICE’s arbitrary and fear spresding enforcement policies. That’s certainly the case here in Alexandria and Northern Virginia. And even more of them would pay taxes if we simply made it easy for them by granting legal status.

The relatively small minority of undocumented migrants who are engaging in anti-social behavior can be identified and removed with some reasonable readjustment of existing resources. For example, more money allocated to the U.S. Immigration Courts, training, technology, community-based policing, and focused “smart”enforcement instead of wasteful and inhumane detention, unfocused arbitrary enforcement, unneeded walls, and filling prisons with minor immigration violators. ICE prosecutors should be authorized and encouraged to use their discretion to prioritize their Immigration Court dockets with a focus on due process and bettering society while recognizing that judicial time will always be both precious and limited.

The current scare tactics and dire, but false, scenarios being pushed by the Trump Administration will neither aid our economy nor serve America’s real needs. They would make us both less safe and less great as a nation.

PWS

09-10-17

NYT: THE “ANTI-DREAMERS'” (KNOWINGLY) FALSE NARRATIVE!

https://www.nytimes.com/2017/09/08/us/politics/why-common-critiques-of-daca-are-misleading.html?smprod=nytcore-ipad&smid=nytcore-ipad-share

Linda Qiu writes:

“Defenders of President Trump’s decision to rescind an Obama-era immigration policy that shielded young immigrants from deportation have offered misleading critiques of the program.

They say the Deferred Action for Childhood Arrivals policy, known as DACA, led to a humanitarian crisis on the border, put native-born Americans out of work and conferred legal status to recipients. Here’s an assessment.

DACA does not specifically grant legal permanent residency or citizenship, but there are pathways for recipients.
Conservative news personalities have suggested that DACA leads to citizenship or that recipients are eligible. These claims require more context.

DACA grants recipients work permission and protects them from deportation, but it alone does not confer citizenship or legal permanent resident status. They are not granted legal status, according to the Department of Homeland Security, though their removals are deferred.

But, according to immigration data, just under 40,000 DACA recipients have obtained “green cards,” or legal permanent residency, and over 1,000 have become American citizens. This is possible because DACA recipients can change their immigration status through a legal basis other than DACA (like marrying an American citizen).

While immigration law bars people who overstayed their visa from returning to the United States for three or 10 years, depending on how long they have resided here unlawfully, DACA halts recipients’ accrual of “unlawful presence.” So someone who obtained DACA status before the re-entry penalty was triggered would remain protected from it.

DACA recipients who entered the country illegally cannot apply for residency the same way as people who entered legally and overstayed their visas. They can, however, apply for “advance parole,” which gives recipients permission to travel outside the United States under special circumstances and is not specific to DACA. When they return to the United States, they enter legally, opening up other avenues for legal status.

It’s misleading to suggest that DACA triggered a wave of migration from Central America.
In a statement, Mr. Trump blamed DACA for spurring “the massive surge of unaccompanied minors from Central America,” a claim echoed by his attorney general, Jeff Sessions, and other Republican lawmakers. But the link between DACA and the humanitarian crisis in 2014 is largely anecdotal and overstated.

Nearly 70,000 children, overwhelmingly from Honduras, Guatemala and El Salvador, tried to cross the United States border alone in the 2014 fiscal year. They would not have qualified for DACA, a program for undocumented immigrants brought in before age 16 who had been living in the United States since 2007.

There were certainly reports of children who listed American immigration policy as having prompted their solo journeys. The Obama administration’s clarification that the minors were not eligible for DACA also suggests a need to swat away the notion. And researchers have noted the possibility that DACA might have given migrants hope that the United States could provide future reprieve from deportation.

Still, it’s a stretch to say DACA was the single or even the main motivating factor behind the surge in migrant children reaching the border. For one, Salvadoran, Guatemalan and Honduran applications for asylum to other Central American countries increased by 1,185 percent from 2008 to 2014, showing that the children were seeking relief not only in the United States.

More significant drivers of the migration were violence, poverty, gang presence, economic opportunity and the desire to be reunified with family, and “it remains unclear if, and how, specific immigration policies have motivated children to migrate to the United States,” according to a 2014 Congressional Research Service report.

Department of Homeland Security data also shows that the surge in unaccompanied minors preceded President Barack Obama’s June 2012 DACA executive order. The number of apprehensions began to rise in January 2012 and plateaued from June 2012 to January 2013, before increasing and then peaking in May and June of 2014.

The evidence that DACA recipients have displaced native-born workers is lacking.
According to Mr. Trump’s press secretary, Sarah Huckabee Sanders, more than four million unemployed Americans in the same age group as DACA recipients “could possibly have those jobs” held by DACA recipients. And Mr. Sessions was more emphatic: The executive order “denied jobs to hundreds of thousands of Americans by allowing those same jobs to go to illegal aliens.”

While it’s certainly possible that there are individual cases of an employer hiring a DACA recipient instead of an American citizen, the claim of a widespread trend is unproved.

Data from the Bureau of Labor Statistics shows that trends in foreign-born and native-born unemployment rates have not changed with DACA. For example, the unemployment rate for natives who had attended college was lower than their foreign-born peers both before and after 2012, while the unemployment rate for natives without a high school diploma has consistently been higher than the foreign-born population.

Similarly, DACA appears to have had no discernible effect on the number of total job openings or those specifically in white collar industries — where DACA recipients are more commonly employed — which have been steadily rising since mid-2009. Economists dispute the overarching argument that less immigration leads to more jobs for Americans.

The defense that Mr. Trump’s order does not open up DACA recipients to deportation is false.
Rescinding DACA will not lead to the “mass deportation of people,” the conservative radio host and author Laura Ingraham said in an interview on Fox News. Representative Jim Jordan, Republican of Ohio, argued on CNN that the “only folks that are subject to deportation right now are those that have engaged in criminal activity.”

Mr. Jordan’s claim is false. The Department of Homeland Security has been clear that officials will potentially arrest and deport any undocumented immigrant without protected status, regardless of a criminal record. Though undocumented immigrants with criminal records still make up the majority of immigration arrests, noncriminal arrests more than doubled in Mr. Trump’s first 100 days as president, compared to the same time period in 2016.

Immigration lawyers say it’s too early to tell whether DACA recipients, who had to provide personal information to officials to apply for the status, will especially be at risk after Mr. Trump’s order. Previously, their information was “protected from disclosure” to Immigration and Customs Enforcement and Customs and Border Protection for the purpose of enforcement. The order, however, notes that information “will not be proactively provided to ICE and CBP,” and the president has said that former recipients would not be a priority for deportation.

“It’s very unclear to me whether U.S.C.I.S. will share that information if ICE affirmatively asks,” said Kate Voigt of the American Immigration Lawyers Association, referring to United States Citizenship and Immigration Services. It is clear, though, that Mr. Trump’s order rescinding DACA opens recipients up to deportation.”

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Truth is that DACA is good for the U.S. But, truth seldom, if ever, enters into the restrictionist White Nationalist narrative.

PWS

09-10-17

OPTIMISTS’ CORNER: Five Reasons Why DACA Legislation Could Pass!

http://nymag.com/daily/intelligencer/2017/09/5-reasons-why-a-dreamer-bill-could-really-happen.html?utm_source=Sailthru&utm_medium=email&utm_campaign=Daily%20Intelligencer%20-%20September%208%2C%202017&utm_term=Subscription%20List%20-%20Daily%20Intelligencer%20%281%20Year%29

Jonathan Chait writes in The Intellingencer as reprinted in New York Maggie:

“Not just a dream? Photo: Spencer Platt/Getty Images
“If they pass a straight-up Dream amnesty,” says Mark Krikorian, an anti-immigration activist, “they will go into the elections having failed to repeal Obamacare but having passed amnesty.” When you put it like that, it sounds crazy, doesn’t it? And indeed it would seem bizarre for Donald Trump’s sole legislative achievement to be the negation of his central campaign theme. But in recent days, the implausible has become suddenly plausible.

1. Trump doesn’t really care about restrictionism. The president has many prejudices but almost no actual policy commitments. He rode anti-immigrant sentiment to the presidency, but his use of the theme was largely instrumental. Trump has alternated his nativist lurches with professions of sympathy for the Dreamers. “I have a love for these people and hopefully now Congress will be able to help them and do it properly,” Trump said recently. “And I can tell you, speaking to members of Congress, they want to be able to do something and do it right. And really, we have no choice.”

2. He’s in a bipartisanship groove. The president cares more about positive feedback and good press than anything else. His bipartisan deal to lift the debt ceiling for three months might have been substantively contentless, but he liked the response from the media. As a creature of impulse, he will probably want to tap the bar for another pleasure hit.

3. The cult of personality protects him. Previous efforts to protect the Dreamers have all fallen prey to conservative revolts. But the Trump imprimatur has unique power to give Republicans political cover. A glimpse of the strange dynamic came into view when Trump cut his debt-ceiling agreement with Democrats over the objections of the GOP leadership, and enraged conservatives took out their anger on … Paul Ryan.

Trump catered to his base by tapping into primal ethno-nationalist resentment. Having proven his tribal loyalty, he is perfectly positioned, should he choose, to bring along his base. A large segment of the party-messaging apparatus seems prepared to follow along. “Nobody wants to kick a bunch of kids out of the country, right?” Rush Limbaugh said Tuesday. “I don’t care if they’re budding little Al Capones. People just don’t want to do it … There needs to be a price, and it would be a great thing, couple this, say, with building the wall. I mean, you do all-in on border enforcement.”

4. The bill will materialize. There is almost certainly a majority in both chambers for a Dreamer bill. The trick is getting the bill to the floor. When Ryan ran for the Speakership, in 2015, he promised he would not bring immigration legislation to the floor unless it commanded a majority of his own party.

What might do the trick, however, is attaching DACA — Deferred Action of Child Arrivals — to an unrelated bill. There will be at least two measures to increase the debt ceiling. Those bills, crucially, will rely heavily on Democratic votes, since a large portion of the Republican base refuses to vote to increase the debt ceiling. This essentially circumvents the informal requirement that the GOP only brings up bills that most Republicans support, opening the door for passing something mostly with Democratic votes.

“There’s no way,” Senate Majority Whip John Cornyn of Texas says of a DACA vote. “We will take that up. I’m confident. But there’s no way that it will stand alone.” But it’s not standing alone any more.

5. Ambiguity is their friend. The ability of both sides to claim a deal does different things is the classic lubricant of any political negotiation. In this case, the grounds for ambiguity are obvious. Trump has made the symbolism of the wall a political fetish, and Democrats oppose it on similar grounds. The way around this standoff is to tie DACA to border-security measures that Trump can call a “wall” and Democrats can call “not a wall.”

After all, Democrats have previously supported border-security measures like increased drone surveillance and added fencing. What is the conceptual distinction between a fence and a wall? Not much.

The safest bet, of course, is that nothing happens, because that is almost always the safest bet in modern Washington. But the window of possibility has opened quickly. All of a sudden, helping the Dreamers is not just a dream.”

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Let’s keep our fingers crossed. It would be nice.

One potential problem is that Trump doesn’t appear to have any immigration expertise in his Administration that’s not part of the restrictionist White Nationlist cabal. He’d probably have to get down to the career level at USCIS to find someone to work on the legal details of a Dreamer bill.

Clearly, White Nationalist restrictionists like Sessions and Miller would have to be screened out of any bipartisan process. And, Chief of Staff Kelly showed little or no appreciation for promoting constructive legal immigration programs during his short DHS tenure. Indeed, he appearss to have overridden sound internal advice and counsel and suppressed evidence in supporting the Sessions-Bannon-Trump disingenuous “Travel Bans.” That’s the trouble with a politically biased Administration that neither appreciates nor has the ability to work with experts in the career civil service.

PWS

09-09-17

SURPRISE! – GONZO LIES: “2017 is on pace for the second-lowest crime rate since 1990 — and near-record low murders” — Sessions Fabricates “Crime Wave” To Support White Nationalist Anti-Hispanic, Anti-Black Political Narrative! –“It’s irresponsible to incite public panic based on falsehoods, and it makes our police officers’ jobs harder.”

https://www.washingtonpost.com/news/politics/wp/2017/09/06/2017-is-on-pace-to-have-the-second-lowest-crime-rate-since-1990-and-near-record-low-murders/?utm_term=.d5c197d6052e

Philip Bump reports in the Washington Post:

“At his swearing-in as the nation’s top law enforcement official in February, Attorney General Jeff Sessions picked up a thread that had run throughout Donald Trump’s campaign for president: America is experiencing an alarming crime wave.

“We have a crime problem,” Sessions said. “I wish the rise that we are seeing in crime in America today were some sort of aberration or a blip. My best judgment, having been involved in criminal law enforcement for many years, is that this is a dangerous, permanent trend that places the health and safety of the American people at risk.”

Preliminary analysis of crime data from the nation’s 30 largest cities released by the Brennan Center for Justice on Wednesday suggests that it isn’t. According to the center’s overview of crime and murder data, 2017 is on pace to have the second-lowest violent crime rate of any year since 1990.

From the report:

The overall crime rate is projected to drop by 1.8 percent to the second-lowest point since 1990.
The violent crime rate is projected to fall by 0.6 percent, also to the second-lowest point in over 25 years. (The lowest rate was in 2014.) “This result,” the report’s authors write, “is driven primarily by stabilization in Chicago and declines in Washington, D.C., two large cities that experienced increases in violence in recent years.”
The murder rate is projected to be down 2.5 percent, on-par with the rate in 2009.

Explore the center’s data for each of the country’s largest cities.

While there was indeed a national uptick in violent crime and murder during 2015 and 2016, one of the underrecognized drivers of those shifts was the sharp increase in killings in two cities, Chicago and Baltimore, which combined made up more than half of the increase in murders in large cities from 2014 to 2017. This year, the number of murders in Chicago alone is expected to drop 2.4 percent. But it’s declines in New York, Houston and Detroit that are driving the overall decrease.

Inimai Chettiar, director of the justice program at the center, told The Post that the analysis suggested two things.

“First, the long-term trend toward safer cities isn’t going anywhere,” Chettiar said over email. “The evidence conclusively shows there is currently no national crime wave. Second, short-term fluctuations in crime are often driven by local factors.”

There are several cities that reinforce that point. The murder rate in Charlotte, doubled over the first half of 2017, for example, even as it fell sharply in other places.

Chettiar addressed Sessions’s concerns directly.

“Our data leads us to believe that the upticks in 2015 and 2016 were likely short-term fluctuations,” she wrote, noting that “not enough research has been done to identify the exact catalyst.”

The center, which is a part of the New York University School of Law, shared its report with Ronal Serpas, a former New Orleans police superintendent who now co-chairs an organization focused on reducing incarceration rates.

“In contrast to what we have been hearing from the president and attorney general, this new data from police departments shows that all measures of crime and murder are in decline this year,” Serpas said in a statement provided to The Post. “It’s irresponsible to incite public panic based on falsehoods, and it makes our police officers’ jobs harder.” Both Serpas and Chettiar noted that in places where violent crime had increased the Trump administration’s focus was best placed on that crime — as opposed to immigration violations, for example.

Attorney General Jeff Sessions stands waiting during a meeting with the Fraternal Order of Police in the Roosevelt Room of the White House in March. (Jabin Botsford/The Washington Post)

As the Trump campaign and then the Trump presidency cited localized increases as examples of the crime threat that Trump pledged to solve, independent observers frequently noted that, despite the uptick in crime in recent years, overall levels were still near recent lows following the sharp drop of the last 20 years. The Brennan Center’s analysis suggests that this trend will continue, leading the administration to a no-doubt vexing problem:

Is it too soon to claim credit?

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I’ve noted many times before that Session’s disingenuous, xenophobic, White Nationalist focus on immigration enforcement actually makes the country less safe from crime. This report confirms that.

Moreover, with his “morbid fixation” on spreading a false narrative on immigration, Sessions has abandoned the real law enforcement functions of the DOJ, particularly in the areas of civil rights, voting rights, police brutality, prison reform, protection of the LGBTQ community, right-wing hate groups, domestic violence, and effectively combatting gangs, drug cartels, and human traffickers. As I’ve noted before, the latter three groups have been energized and empowered by Sessions’s focus on janitors, maids, gardeners, Dreamers and other “collaterals” — even dissing legal immigrants ands implicitly U.S. citizens of ethnic and immigrant heritage — rather than working on nuanced solutions to real law enforcement problems. By sowing unnecessary fear, mistrust, and terror among law-abiding productive members of migrant communities, he has basically “green-lighted” them as targets for crime, domestic violence, sexual exploitation, and gang recruitment. Ironically, this is a scenario I heard many times from individuals seeking refuge from third world countries: “I can’t go to the police because they won’t help and might even abuse or arrest me with impunity.”

Sessions is destroying the hard work of of community policing in ethnic communities in many cities throughout the U.S. One reason that many jurisdictions abandoned the “Safe Communities” program pushed by the Obama Administration is because they found it was a misnomer: busting undocumented workers and minor offenders actually did not make communities “safer.” Rather than learning from history, Sessions is doubling down on past failures. “Irresponsible” might be too kind a word to describe the Trump-Sessions White Nationalist legal agenda.

PWS

09-09-17

“JRUBE” IN WASHPOST: DEPT OF IN–JUSTICE: Under “Gonzo Apocalypto” White Nationalist, Xenophobic, Homophobic Political Agenda Replaces “Rule Of Law” — Latest DOJ Litigation Positions Fail “Straight Face” Test: “making up rules willy-nilly so as to show its rabid xenophobic base it is adhering to its promise of racial and ethnic exclusion!” — Read My “Mini-Essay” On How Advocates and U.S. Courts Could Restore Justice & Due Process To Our Broken U.S. Immigration Courts!

https://www.washingtonpost.com/blogs/right-turn/wp/2017/09/08/trump-is-getting-rotten-legal-advice-and-once-again-it-shows/?utm_term=.e34528c36b2c

Jennifer Rubin writes in “Right Turn” in the Washington Post:

“The 9th Circuit gave the back of the hand to the argument that the Trump administration could borrow a definition from another section of the immigration statute to exclude grandmothers. The Supreme Court had used mothers-in-law as an example of a close familial relationship it wanted to protect. The 9th Circuit judges wrote: “Plaintiffs correctly point out that the familial relationships the Government seeks to bar from entry are within the same ‘degree of kinship’ as a mother-in-law.” It’s hard to make a case that grandmothers would not qualify. It does not appear that the government even made a good-faith effort to apply the Supreme Court’s direction.

On one level, it’s shocking that a Republican administration that is supposed to be a defender of “family values” would take such a miserly position. But, of course, family values are of little consequence to an administration that is more than willing to repeal the Deferred Action for Childhood Arrivals program, auguring for the breakup of intimate family relations (e.g., one sibling gets deported but American-born siblings remain).

The 9th Circuit also looked at the administration’s argument that a refugee with a formal assurance of settlement lacks a bona fide relationship with some entity or individual in the United States. The court set out the laborious screening process refugees undertake (making a mockery of the notion these people are a security threat) and noted that after all those steps are completed the refugee gets a sponsorship assurance “from one of nine private non-profit organizations, known as resettlement agencies.” The 9th Circuit held: “The Government contends that a formal assurance does not create a bona fide relationship between a resettlement agency and a refugee, and stresses that ‘[t]he assurance is not an agreement between the resettlement agency and the refugee; rather, it is an agreement between the agency and the federal government.’ But the Supreme Court’s stay decision specifies that a qualifying relationship is one that is ‘formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the Executive Order].”’”

Again, one cannot help but come away with the impression that the government is throwing up every half-baked idea it can find to limit the number of people entering the country, regardless of the national security risk or the hardship its action inflicts. The Trump administration is plainly reasoning backward — deny as many people as possible admittance and then think up a reason to justify its position.

In its fixation with keeping as many immigrants out of the United States as possible, the Trump administration cannot claim to merely be following the dictates of the law. (Gosh it’s out of our hands — “Dreamers” and grandmas have to go!) It is making up rules willy-nilly so as to show its rabid xenophobic base it is adhering to its promise of racial and ethnic exclusion. It’s hard to believe seasoned career Justice Department lawyers agree with these arguments. In its oversight hearings Congress should start grilling Attorney General Jeff Sessions as to how he comes up with his cockamamie legal arguments and whether political appointees are running roughshod over career DOJ lawyers.

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Read Rubin’s full article at the link.

Mini-Essay:

TIME FOR ACTION ON THE BROKEN U.S. IMMIGRATION COURTS — IF CONGRESS WON’T ACT, THE FEDERAL COURTS MUST

Paul Wickham Schmidt

United States Immigration Judge (Retired)

If nothing else, the Trump Administration has given me a new appreciation for the Post’s “JRube.” She certainly has “dialed up” Gonzo’s number and exposed what’s behind his pompous, disingenuous misuse of the term “rule of law.”

No chance that a GOP Senate with Chuck Grassley as Judiciary Chair is going to hold Gonzo accountable for his daily perversions of “justice.” But, at some point, Federal Courts could begin sanctioning DOJ lawyers for willful misrepresentations (the Hawaii arguments before the 9th contained several) and frivolous positions in litigation. It’s possible that some DOJ lawyers all the way up to Gonzo himself could be referred by Federal Judges to state bar authorities for a look at whether their multiple violations of ethical standards should result suspension of their law licenses.

Another thought kicking around inside my head is that Gonzo’s actions and his public statements are starting to make a plausible case for a due process challenge to the continued operation of the U.S. Immigration Courts.

As with school desegregation, prison reform, and voting rights, a Federal Court could find systematic bias and failure to protect due process. That could result in something like 1) a requirement that the DOJ submit a “due process restoration” plan to the court for approval, or 2) the court appointment of an independent “judicial monitor” to run the courts in a fair and unbiased manner consistent with due process, or 3) the Federal Courts could take over supervision of the US Immigration Courts pending the creation of an Article I (or Article III) replacement.

High on the list of constitutionally-required reforms would be ending the location of courts within DHS detention facilities. All courts should be located in areas where adequate pro bono counsel is reasonably available and accessible. Immigration Courts should be located outside of DHS facilities in buildings accessible to the public with reasonable security requirements. Immigration Judges must be required to continue cases until pro bono counsel can be retained. Alternatively, the Government could provide for appointed counsel.

Another obvious due process reform would be to strip the Attorney General of his (conflict of interest) authority to establish or review precedents and operating procedures for the U.S. Immigration Courts. Along with that, the DHS should be given an equal right to appeal adverse BIA appellate decisions to the Courts of Appeals (rather than seeking relief from the AG — clearly an interested party in relation to immigration enforcement).

There also should be an immediate end to the appointment and supervision of U.S. Immigration Judges by the politically-biased AG. U.S. Immigration Judges and BIA Appellate Immigration Judges should be appointed on a strict merit basis by either an independent judicial monitor or by the U.S. Courts of Appeals until Congress enacts statutory reforms.

The current U.S. Immigration Court system mocks justice in the same way that Jeff “Gonzo Apocalypto” Sessions mocks it almost every day. There might be no practical way to legally remove Gonzo at present, but the Federal Courts could step in to force the U.S. Immigration Courts to undertake due process reforms. The current situation is unacceptable from a constitutional due process standpoint. Something has to change for the better!

PWS

09-09-17\

GONZO’S LATEST TARGET: LGBTQ Americans — DO”J” Gratuitously Files “Embarrassing” Brief With Supremes SUPPORTING Homophobia: “politicized bigotry dressed up in inane legalese!”

http://www.slate.com/articles/news_and_politics/jurisprudence/2017/09/doj_s_cynical_embarrassing_brief_in_the_supreme_court_s_anti_gay_baker_case.html

Mark Joseph Stern reports in Slate:

“On Thursday afternoon, the Department of Justice filed an amicus brief in Masterpiece Cakeshop v. Civil Rights Commission, a constitutional challenge to LGBTQ nondiscrimination laws. The DOJ urged the Supreme Court to rule that laws barring businesses from refusing to serve gay couples may violate the First Amendment’s free speech guarantee. Its brief is an exercise in cynical dishonesty, one that’s difficult to read as anything less than politicized bigotry dressed up in inane legalese.

. . . .

Even worse, the brief does not explain why homophobia deserves special respect under the law. The Supreme Court has said that homosexuality is immutable, like race. Why, then, should animus toward same-sex couples be treated differently from animus toward interracial couples? And what about religious bigotry? Can a devout baker refuse to sell a cake to an interfaith couple, and can an atheist one say a Christian can’t buy cupcakes for a christening? Can a sexist baker refuse to serve a female customer? What if his misogyny is derived from religion? And why stop at a cake? Shouldn’t the preparation of other foods qualify as expressive conduct, too? Doesn’t every good or service involve some measure of expressive conduct or association that the First Amendment could theoretically protect?

In its brief, the DOJ implicitly raises all of these questions without answering them because it can’t answer them—not honestly, at least. The reality is that the courts cannot, with any logical coherence or consistency, deny civil rights protections to some groups but not others. Either nondiscrimination law are constitutional or they aren’t. The First Amendment does not grant greater rights to homophobic bakers than racist or sexist ones. Plenty of bigoted business owners wish they could assert a constitutional privilege not to associate with specific groups. If the courts open the door to one, they’ll open the door to all. Shopkeepers do not have a special right to turn away gays from their stores.

The brief strives to avoid this problem because it is, at bottom, a political document. Attorney General Jeff Sessions recently gave a speech to ADF thanking the organization for its “important work” defending “religious liberty.” Through Sessions, President Trump is discharging his obligation to appease the bigots in his base. The DOJ’s efforts, however, may prove counterproductive. This brief will delight the court’s reactionaries who favor religious supremacy and disdain gay rights. But it can only estrange Kennedy—who notably, has allowed an LGBTQ nondiscrimination policy to trump a First Amendment claim in the past. Kennedy is always eager to protect the “equal dignity” of same-sex couples; the DOJ now seeks to undermine it. The Trump administration might score political points with this brief, but it won’t win enough votes at the court.

One more thing
The Trump administration poses a unique threat to the rule of law. That’s why Slate has stepped up our legal coverage—watchdogging Jeff Sessions’ Justice Department, the Supreme Court, the crackdown on voting rights, and more.”

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Under Sessions, the Department of Justice has become purveyor of racism, bigotry, hate, voter suppression, xenophobia, White Nationalism, homophobia, and some incredibly bad and intellectually dishonest lawyering. Gonzo is a disgrace to his position and an insult to American justice. Liz was right. And let’s not forget how she was treated by the GOP when she tried to speak truth about Sessions in the Senate!

PWS

09-08-17

PETULA DVORAK IN WASHPOST: DISHONEST LEADERS SOW “FALSE FEARS” WHILE IGNORING REAL THREATS!

https://www.washingtonpost.com/local/what-happens-when-a-presidency-runs-on-fakefears-real-fears-are-ignored/2017/09/07/83ead004-93d1-11e7-8754-d478688d23b4_story.html

Dvorak writes:

Fake fear is our new leader.

Washington’s new ruling class is not governing with compassion, common sense, measured research, knowledge of history or the future. Theirs is a doctrine of fake fears. And these same people also have a problem with things we should actually be afraid of.

Let me explain.

Fake Fear: The “bad hombres” President Donald Trump talked about during the campaign last year begot this week’s DACA repeal thing. Trump wants us to be afraid of these immigrants, and he’s ready to trash the lives of more than 800,000 Americans looking for a path to legal residency by killing the Deferred Action for Childhood Arrivals program.

The truth is that these immigrants, brought here as children by their parents, “have lower incarceration rates than native-born Americans of the same age and education level,” according to a report issued last week by the nonpartisan CATO Institute.

Real Fear: Hurricanes. You know them — from Katrina to Harvey to Irma — millions of people and billions of dollars tell you hurricanes devastate lives, cities and industries.

But Trump refuses to fear them. Earlier this year, he proposed a budget that slashed about $667 million for the disaster preparedness programs run by the Federal Emergency Management Agency. That budget also proposed $6 billion in cuts to the Department of Housing and Urban Development, which helps rebuild homes and hospitals.

The fake fear administration also killed a post-Katrina rule requiring building projects eligible for federal funding to take such measures as elevating structures in flood zones away from the reach of rising water before they get government cash. And they did this just in time for hurricane season.

But hey, the $108 billion in damage and the 1,800 lives lost in Hurricane Katrina must not mean much when it your moral compass is fake fear.

Fake fear: The apparent crime wave that Attorney General Jeff Sessions keeps warning Americans about.

“We have a crime problem,” Sessions said in February. “I wish the rise that we are seeing in crime in America today were some sort of aberration or a blip. My best judgment, having been involved in criminal law enforcement for many years, is that this is a dangerous, permanent trend that places the health and safety of the American people at risk.”

But the facts say otherwise.

This year is on pace to have the second-lowest violent crime rate of any year since 1990, according to a report by the Brennan Center for Justice this week that analyzed statistics from the nation’s 30 largest cities.

Real fear: Though we’ve seen more and more horrifying videos of civilians being shot by police officers, we still have little comprehensive data that shows how often this happens and how agencies can prevent these tragedies.

“What we really need to know is how many times police shoot people, not just how many of those people die,” David A. Klinger, a criminal justice professor at the University of Missouri in St. Louis who studies police use of force, told The Washington Post earlier this summer.

The Post began compiling this information in 2015, relying on local news, social media and our own reporting.

This is a real fear for real people. This is true whether you’re a black man, such as beloved cafeteria worker Philando Castile, who was doing nothing wrong when he was killed in Minnesota last year by a nervous police officer. And it’s true if you’re a white woman, like nurse Alex Wubbels, who was seen in a viral video last week being roughed up and arrested by a Utah detective for simply doing her job. The fake fear people seem to have little interest in addressing this problem.

The FBI’s weak, self-reporting system that has been the only way to track this was called “embarrassing and ridiculous” by fired FBI director James B. Comey.

Fake fear: Muslims in America. Trump’s attempts at a travel ban, fulfilling his campaign promise of a “total and complete shutdown of Muslims entering the United States” have reinforced a growing and misplaced Islamophobia throughout our country. We’ve seen the fake-fear sentiment in workplaces, in small-town councils trying to mess with mosques that have been peaceful and unnoticed for years, and I even saw it one of my sons’ sports teams this summer.

The truth is, from 2008 to 2016, right-wing extremists carried out twice as many terrorist attacks on U.S. soil than Islamist extremists, according to a recent report from The Nation Institute’s Investigative Fund and The Center for Investigative Reporting’s Reveal.

Real Fear: White supremacists in America. The FBI and Department of Homeland Security issued a joint intelligence bulletin that said white supremacists “were responsible for 49 homicides in 26 attacks from 2000 to 2016 … more than any other domestic extremist movement.”

They issued this statement just a couple months before the protests in Charlottesville, where an avowed Nazi sympathizer was arrested after a car drove into a crowd, killing 32-year-old Heather Heyer and injuring 19 others. There is no mistaking that was real.

We deserve real care and real concern from our leaders when it comes to real fears. There’s no shortage of them.

Let’s start by calling out #FakeFears when we see them. Washington is full of those these days, too.

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Dvorak succinctly captures what White Nationalist governance and propaganda is all about: fear, loathing, lies. Too cowardly to address real problems because that might offend the “White Nationalist base” that put and keeps them in power.

PWS

09-08-17

ABA JOURNAL: “Dickie The P” Reportedly Quit 7th Over Rift With Colleagues About Treatment Of Pro Se Litigants — Perhaps He Should Check Out In Person How Sessions’s DOJ & Captive Immigration Courts Intentionally Abuse & Deny Due Process To Unrepresented Migrants!

http://www.abajournal.com/news/article/why_did_posner_retire_he_cites_difficulty_with_his_colleagues_on_one_issue/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email

Debra Cassens Weiss reports:

“Judge Richard Posner had intended to stay on the federal appellate bench until he reached 80, an age he believed to be the upper limit for federal judges.

But on Friday, at the age of 78, he abruptly announced his retirement from the Chicago-based 7th U.S. Circuit Court of Appeals, effective the next day. The reason is due to “difficulty” with his colleagues over the court’s treatment of people who represent themselves, he told the Chicago Daily Law Bulletin in an email.

“I was not getting along with the other judges because I was (and am) very concerned about how the court treats pro se litigants, who I believe deserve a better shake,” Posner said. The issue will be addressed in an upcoming book that will explain his views and those of his colleagues “in considerable detail,” Posner said.

Posner said he did not time his retirement to allow President Donald Trump to appoint his replacement. “I don’t think it’s proper for judges or justices to make their decision to retire depend on whom they think the president will appoint as replacements,” he told the Law Bulletin. With Posner’s retirement, the 7th Circuit has four vacancies.

Posner was appointed by President Ronald Reagan in 1981, and was widely considered a conservative. He has since written more than 3,300 judicial opinions, and not all please conservatives, according to the Law Bulletin. On the one hand, he struck down the Illinois ban on carrying weapons in public, called for fewer restrictions on domestic surveillance, and limited class certification in class-action lawsuits. But he has also written opinions favoring abortion rights and same-sex marriage.

In a 2012 interview with National Public Radio, Posner said he has become less conservative “since the Republican Party started becoming goofy.” But he won’t remain above the fray in politics.

He told the Law Bulletin that his retirement will allow him to assist his cat, Pixie, in a run for president in 2020. Above the Law had endorsed Pixie last year, but Posner was unable to participate in the campaign.”

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Perhaps “Dickie The P” can take some time away from Pixie to visit the kangaroo courts that DOJ has established in prisons intentionally located in out of the way places where traumatized individuals seeking refuge from life-threatening conditions are held in substandard conditions and forced to represent themselves in “death penalty cases” involving some off the most complex and (intentionally) obtuse concepts in modern American law.

Love him or loathe him (or both), Posner is a prolific writer and thinker whose views can’t be ignored or swept under the table. What’s happening in the U.S. Immigration Courts under Sessions is a national disgrace. A high profile legal commentator like Posner, who frankly doesn’t care whom he pisses off, could shed some light on the travesty now passing for due process in the Immigration Courts and how too many of his former Article III colleagues have turned their backs on their constitutional duties rather than taking a strong legal stand against intentional abuse of the most vulnerable by our legal system. A voice like Posner’s advocating for an Article I Court would be heard!

PWS

09-08-15

IN HARVEY’S WAKE: GONZO’S ANTI-DREAMER POLICIES LIKELY TO CAUSE MORE LASTING DAMAGE TO HOUSTON THAN STORM: Homes & Businesses Can Be Rebuilt — Ruined Lives, Dashed Dreams, & Destroyed Trust Can’t: “how suffering can needlessly be inflicted!”

https://www.nytimes.com/2017/09/07/opinion/daca-trump-hurricane-harvey-.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region%C2%AEion=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region

Lacy M. Johnson writes in the NY Times:

“HOUSTON — As the floodwaters rose in my west Houston neighborhood after Hurricane Harvey landed, my husband and many of our neighbors pulled boats through waist-high water, knocked on doors and plucked people from their submerged houses. They rescued elderly couples, young roommates, families who do not speak English. There was no checking of IDs, no debate on whether a life was worth saving.

All across the city, as catastrophic flooding threatened to drown us, regular people risked their lives to help others. Alonso Guillen, a radio host and D.J. who lived in Lufkin, Tex., two hours from Houston, brought a boat and a group of friends here to join in those efforts. He was on that boat, saving people he had never met before, when it capsized last Wednesday and he drowned. Alonso Guillen died a hero, if not an American citizen. He was a Dreamer, a beneficiary of the Deferred Action for Childhood Arrivals program, and like the nearly 141,000 other Dreamers in Texas, he followed the requirements of the program — to stay in school or be gainfully employed — and had never been convicted of a crime. More than that, Texas was his home.

Around the time Alonso Guillen was buried in Lufkin, Attorney General Jeff Sessions announced President Trump’s decision to cancel the DACA program, saying that “enforcing the law saves lives, protects communities and taxpayers, and prevents human suffering.” Instead, what the announcement shows is how suffering can needlessly be inflicted.

The end of DACA means that hundreds of thousands of people nationwide will lose their eligibility to work. As many as 80,000 Dreamers in the greater Houston area alone could be deported to countries where they have no relationships, where they do not even speak the language. It is the disaster of this decision — more than the hurricane — that threatens to tear our city apart.

. . . .

Attorney General Jeff Sessions called the choice to end DACA “the compassionate thing.” But this decision doesn’t look like any kind of compassion I’ve seen in Houston, where everyone I know has chosen to open their homes to strangers, to feed them, clothe them, raise money for the restoration of their homes. Even people whose own houses were destroyed are helping others in the ways they can.

. . . .

The conversation about what comes next, how to rebuild and how to engineer a more equitable city, is a long one and is now only beginning. Tomorrow, some of us will choose to prepare meals, to join a work crew, to deliver donations on a flatbed truck. We’re planning to fight like hell for every single one of our Dreamers — to keep them where they are already home.”

Lacy M. Johnson is the author of “The Other Side: A Memoir” and the forthcoming essay collection “The Reckonings.”

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Hurricanes are “acts of God” (aggravated by anti-science politicians and unwise, greed-driven choices in urban development). But, empowering White Nationalist restrictionists and their gonzo views and policies on immigration is purely a man-made disaster that can be reversed at the ballot box. (That’s why White Nationalist Kris Kobach and his Voter Suppression Commission is working so hard to restrict suffrage!)

PWS

09-08-17

TRUMP ADMINISTRATION LOSES AGAIN ON TRAVEL BAN 2.0. — 9th Circuit Sides With Plaintiffs, District Court!

http://abcnews.go.com/Politics/wireStory/appeals-court-grandparents-part-trumps-travel-ban-49689664

ABC News reports:

By GENE JOHNSON, ASSOCIATED PRESS
SEATTLE — Sep 7, 2017, 6:37 PM ET
Email
A federal appeals court on Thursday rejected the Trump administration’s limited view of who is allowed into the United States under the president’s travel ban, saying grandparents, cousins and similarly close relations of people in the U.S. should not be prevented from coming to the country.

The unanimous ruling from three judges on the 9th U.S. Circuit Court of Appeals also said refugees accepted by a resettlement agency should not be banned. The decision upheld a ruling by a federal judge in Hawaii who found the administration’s view too strict.

“Stated simply, the government does not offer a persuasive explanation for why a mother-in-law is clearly a bona fide relationship, in the Supreme Court’s prior reasoning, but a grandparent, grandchild, aunt, uncle, niece, nephew, or cousin is not,” the ruling said.

The U.S. Supreme Court said in June that President Donald Trump’s 90-day ban on visitors from Iran, Libya, Somalia, Sudan, Syria and Yemen can be enforced pending arguments scheduled for October. But the justices said it should not apply to visitors who have a “bona fide relationship” with people or organizations in the U.S., such as close family ties or a job offer.

The government interpreted such family relations to include immediate family members and in-laws, but not grandparents, cousins, aunts and uncles. The judge in Hawaii overruled that interpretation, expanding the definition of who can enter the country to the other categories of relatives.”

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Read the complete story at the link.

Not very surprising. The Trump Administration continues to undermine the rule of law to advance their bogus agenda on security and terrorism.

PWS

09-07-17

THE HILL: Rappaport Says: “Trump ended DACA in the most humane way possible!” –Hector Barreto, Chairman of The Latino Coalition Agrees!

http://thehill.com/blogs/pundits-blog/immigration/349566-trump-ended-daca-in-the-most-humane-way-possible

Nolan writes:

“Former President Barack Obama established the Deferred Action for Childhood Arrivals (DACA) Program five years ago with an executive order that granted temporary lawful status and work authorization to certain undocumented immigrants who had been brought to the United States as children.

This was not a good idea. It only provided temporary relief and applicants had to admit alienage, concede unlawful presence, and provide their addresses to establish eligibility for the program, which has made it very easy to find them and rush them through removal proceedings.

Instead of giving false hope to the young immigrants who participated in the program and heightening their risk of deportation, Obama should have worked on getting legislation passed that would have given them real lawful status and put them on a path to citizenship. Such bills are referred to as DREAM Acts, an acronym for “Development, Relief, and Education for Alien Minors Act.”

That still is the only option that makes any sense.

. . . .

DACA advocates need to put aside any anger they have over the rescission of DACA and work on getting a DREAM Act passed.

DREAM Acts have been pending in Congress since 2001, and we are yet to see one enacted. This is what led Obama to establish the DACA program administratively.

A new approach is needed. One possibility would be to base eligibility on national interest instead of on a desire to help as many undocumented immigrants as possible, which is the approach taken by the recently introduced American Hope Act, H.R. 3591. It might more appropriately have been named, “The False Hope Act.”

The solution is to find a way to help immigrants who were brought here as children that would be acceptable to both parties.”

In a separate blog over on CNBC, Hector Barreto, Chairman of the Latino Coalition echoed Nolan:

https://www.cnbc.com/amp/2017/09/06/on-daca-trump-did-the-right-thing-commentary.html

“The winding down of DACA is the perfect time for Congress to develop effective, compassionate policy on immigration – something most Americans strongly agree we need. The best reforms will be developed through the legislative process, not executive orders – and that’s something else both sides can agree on.

In the meantime, leaders should stay away from inflammatory language and fear mongering. Mass deportations will not happen – it is simply not logistically possible, and it is not what the Trump Administration has called for. It is worth noting how Attorney General Sessions described the government’s next steps:

The Department of Justice has advised the President and the Department of Homeland Security that DHS should begin an orderly, lawful wind down, including the cancellation of the memo that authorized this program. … This [wind down process] will enable DHS to conduct an orderly change and fulfill the desire of this administration to create a time period for Congress to act—should it so choose. We firmly believe this is the responsible path.

Sessions’ words about a “wind down” were rational and calm, indicating an approach that is not drastic or dramatic, not gratuitously painful or overly political. The end of DACA and the beginning of lawful immigration reform can, and should, be handled with this level of maturity and respect – for dreamers for American citizens, and for our nation’s tradition of the rule of law.

PLAY VIDEO

There are no easy or simple answers on immigration, and it’s okay for our leaders to acknowledge that fact. I believe they can find legislative solutions that strengthen America, recognize our proud immigrant tradition, keep the economy strong, and keep our citizens safe and our borders secure. The core elements of President George W. Bush’s immigration reform proposals, for example, met those goals through effective border security, a functioning and humane guest worker program, and a pathway to earned legal status for the undocumented. Given the six-month time frame Congress will have before DACA ends, they would do well to start their work with Bush’s already well-developed proposal.

President Trump even Tweeted on Tuesday that he would revisit the issue if Congress cannot act.”

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Read Nolan’s and Hector’s blogs at their respective links above.

I agree with Nolan’s “bottom line:”

“The solution is to find a way to help immigrants who were brought here as children that would be acceptable to both parties.”

PWS

09-05-17

3RD CIR FINDS BIA ERRED IN CLASSIFYING BANGLADESH BNP AS “LEVEL III TERRORIST ORGANIZATION” — DECRIES BIA PANEL INCONSISTENCIES, LACK OF ACCESS TO UNPUBLISHED DECISIONS — Uddin v. Attorney General

171056p-Uddin

Uddin v. Attorney General, 3rd Cir., Sept. 6, 2017

BEFORE: GREENAWAY, JR., SHWARTZ, and RENDELL, Circuit Judges

OPINION BY: Judge Rendell

KEY QUOTE:

“While we will deny the petition for review challenging the Board’s ruling dismissing Uddin’s Convention Against Torture (“CAT”) claim, we will grant the petition in part and remand on his withholding of removal claim. The Board has pointed to terrorist acts by BNP members. But it did not find that BNP leadership authorized any of the terrorist activity committed by party members. Today, we join the reasoning of the Seventh Circuit and the Board in many of its own opinions by holding as follows: unless the agency finds that party leaders authorized terrorist activity committed by its members, an entity such as the BNP cannot be deemed a Tier III terrorist organization.

. . . .

Second, the rule we announce mirrors the Board’s own reasoning in the mine-run of its cases involving the BNP’s status as a Tier III organization. In fact, in some cases where IJs did not make a finding as to BNP leaders’ authorization of allegedly terrorist acts, the Board found error in the IJs’ omissions, and remanded to the IJs to take up that very question of authorization. In such cases, the Board bolstered

used the RAB to conduct numerous extra-judicial killings of BNP members. Thus, for purposes of the BNP’s status as a terrorist organization, the RAB’s conduct cannot be ascribed to that group during the time period relevant to Uddin’s case.

its reasoning by referencing Seventh Circuit opinions suggesting that some finding on authorization is necessary to assign a group Tier III status. See Khan v. Holder, 766 F.3d 689, 699 (7th Cir. 2014) (“An entire organization does not automatically become a terrorist organization just because some members of the group commit terrorist acts. The question is one of authorization.”); Hussain v. Mukasey, 518 F.3d 534, 538 (7th Cir. 2008) (“An organization is not a terrorist organization just because one of its members commits an act of armed violence without direct or indirect authorization . . . .”).

. . . .

Further, today’s ruling should help provide the Board a principled method of adjudicating Tier III cases, an area of law with little guidance from the Courts of Appeals. This dearth of precedential opinions has resulted in highly inconsistent results regarding the BNP’s status as a terrorist organization: our preliminary research in preparation for oral argument turned up several Board rulings concluding that the BNP was not in fact a terrorist organization. These conclusions were in stark contrast to the Board’s finding in Uddin’s case.

Faced with these contradictory opinions, in advance of oral argument we asked the Government to submit all Board opinions from 2015-2017 addressing the terrorism bar as it applies to the BNP. (Those opinions are not all publicly available.) The Government’s submission—fifty-four opinions in total—did not bolster our confidence in the Board’s adjudication of these cases.

In six of the opinions, the Board agreed with the IJ that the BNP qualified as a terrorist organization based on the record in that case. But in at least ten, the Board concluded that the BNP was not a terrorist organization. In at least five cases, the Government did not challenge the IJ’s determination that the BNP is not a terrorist organization. And in one case, the Board reversed its own prior determination, finding that that “the Board’s last decision incorrectly affirmed the Immigration Judge’s finding that the BNP is a Tier III terrorist organization.” Many of the cases discussed the BNP’s terrorist status during the same time periods, reaching radically different results.

We recognize that the Board’s decisions are unpublished, and thus lack precedential value. We also note the Government’s argument that the BNP’s status as an undesignated terrorist organization is a “case-specific” determination based on the facts presented. That said, something is amiss where, time and time again, the Board finds the BNP is a terrorist organization one day, and reaches the exact opposite conclusion the next.

Even more concerning, the IJ in this case stated that he was “aware of no BIA or circuit court decision to date which has considered whether the BNP constitutes a terrorist organization.” AR 68. At the time the IJ ruled, there were several such decisions, and now there are dozens. When asked at oral argument whether the IJ could access unpublished Board decisions regarding BNP’s terrorist status, the Government’s Attorney responded that he did not know. This is a troubling state of affairs.”

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Gee whiz, the Article III’s are finally starting to figure out some of the problems with having a supposedly due-process focused Appellate Court resident in an agency of the U.S. Department of Justice. And the quality and consistency of administrative justice in immigration is hardly likely to improve under the Sessions “just peddle faster and deport more folks while we mindlessly fill the system with DACA immigrants” program.

The Third Circuit arguably now knows more about what the BIA is doing in this area than then BIA itself. And, I can guarantee that they know more than Jeff Sessions or anyone at the DOJ.

Oh yeah, and hiring more Immigration Judges, giving them less training, moving them around for enforcement purposes, and giving them less time to turn out quality decisions isn’t likely to improve this “troubling state of affairs.” Moreover, by failing to provide and enforce uniform guidance, the BIA encourages the DHS to abuse the system by “rolling the dice” on cases (like this one) they clearly should lose, but could win, at the Immigration Court, rather than being required to settle cases and exercise prosecutorial discretion in the way almost all other prosecutors do, on every level of the U.S. system except the Immigration Court. What Sessions disingenuously calls “enforcing the rule of law” is actually, in the words of Jason Dzubow, a “mixture of cruelty and incompetence” (with some just plain old stupidity thrown in).

The only thing that will improve the quality of justice in the U.S. Immigration Court system is to get it out of the Executive Branch and into an independent structure forthwith. Otherwise, the Article III’s are going to find themselves between a rock an a hard place: rubber stamp the BIA’s questionable work product or take over the BIA’s function and insist that constitutional due process be satisfied.

PWS

09-07-17

NYT: MASHA GESSEN: “Immigrants Shouldn’t Have to Be ‘Talented’ to Be Welcome”

https://www.nytimes.com/2017/09/06/opinion/daca-immigrants-economic-contributions.html?&moduleDetail=section-news-1&action=click&contentCollection=Opinion®ion=Footer&module=MoreInSection&version=WhatsNext&contentID=WhatsNext&pgtype=article

Gessen writes:

“But what’s wrong with the decision to discontinue DACA is that people — not workers — will be deported. Lives — not careers — will be shattered. The problem is that it’s inhumane. As long as politicians consider it necessary to qualify the victims as “hardworking” or “talented,” they fail to stand up to the administration’s fundamentally hateful immigration agenda.

The reform package backed by Mr. Trump last month also claims to pursue economic aims. Neither Democrats nor Republicans — nor critics in the news media — have taken issue with this underlying premise: They have largely argued that the package proposes the wrong means for reaching economic ends. The plan would limit immigration to the young, highly educated and highly qualified. It would effectively stop immigrants from being able to bring family members to the United States. If an immigrant is but a cog in the economic machine, then what do parents, grown children and siblings matter? The logic is dehumanizing but hardly new or unique to the Republican Party. Mr. Sanders’s campaign plank argued for preserving family-based visas in the following terms: “Family is integral to a worker’s pursuit of happiness and economic productivity.”

Mr. Sanders’s platform made the barest mention of refugees. Mrs. Clinton’s published program made none. Mr. Trump, of course, wanted to drastically reduce the already small number of refugees that the United States accepts.

Refugees don’t fall into the economic logic of immigration. The argument for accepting refugees is not that they are good — for the economy, or for the country’s ability to meet its international obligations, or even because they are good people — but that America is good. This is where the sleight of hand of turning stories of immigrant success into the story of America becomes dangerous. It’s not immigrants’ economic contribution that makes America proud; it’s its adherence to the words inscribed inside the base of the Statue of Liberty: “Give me your tired, your poor/your huddled masses yearning to breathe free” — from the Emma Lazarus poem that the White House adviser Stephen Miller waved away last month during a news conference on immigration reform.

The controversy following Mr. Miller’s comments focused on the poem. But the argument for refugees is less poetic than it is pragmatic. As Arendt wrote in that essay, “the outlawing of the Jewish people in Europe has been followed closely by the outlawing of most European nations.” This was just a first step, Arendt wrote: “The comity of European peoples went to pieces when, and because, it allowed its weakest member to be excluded and persecuted.”

If immigration is debated only in terms of whether it benefits the economy, politicians begin to divide people into two categories: “valuable” and “illegal.” When countries make people illegal, the world comes apart. When we agree to talk about people as cogs, we lose our humanity.”

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Read the complete op-ed at the link.

I generally agree with Gessen: we should save as many lives as possible, at least of folks who are not coming to harm us. We have approximately 11 million individuals living outside the law now; the results have been overwhelmingly a boon both for our country and the individuals. This suggests that we could and should have been admitting hundreds of thousands of additional legal immigrants annually. Yes, there probably is an outer limit. But, we’re nowhere near it, and haven’t seriously and realistically discussed it during my lifetime.

Leaving aside refugees and others in immediate danger, the market influences the flow to a much greater extent than most critics will admit. If there are no jobs and no opportunities, individuals who have a choice will stop coming or go elsewhere. Indeed, I noticed that during recession, some who were already here departed voluntarily, believing that with money they had made in the US, and dwindling opportunities here, they would be better off somewhere else. Moreover, by no means does everyone want to come to the US.

A normalized immigration system would allow us to do better screening of prospective immigrants. Also, if there were reasonable waiting lists for immigration, most individuals would choose to come within the system, rather than outside it. But, when legal immigration is an impossibility, or waiting lists stretch out for a decade for more, the incentive for legal immigration evaporates.

More legal immigration coming through a regularized system would also allow for better security screening, more effective border control, and a much more focused and efficient use of immigration enforcement resources. There would be a better chance that those coming outside the system would actually be “bad guys” whom we should remove, rather than construction workers, maids, gardeners, refugees of various types, and family members whose apprehension and removal does not serve the national interest.

We actually have a much more “robust”and expansive immigration system in reality than “on paper.” But, with our overly restrictive legal immigration laws, we have blown our chance to regulate and regularize the inevitable flow of migrants. More restrictions and more arbitrary enforcement in the false name of “rule of law” will not give us control. But, it will be expensive, dehumanizing, and ultimately against our real national interests.

Yes, immigration restrictionists don’t want to face up to the truth about migration. They will continue to push their false and alarmist narratives. But, at some point, the rest of us will do better to act on humane and realistic principles, rather than on fear and loathing.

PWS

09-07-17

ALWAYS A PRETTY SAFE BET: “Jeff Sessions is wrong,” Says Sen. Lindsey Graham (R-SC) — (Actually, Sessions Lied And Smeared Some All-American Young People In The Process, But Why Split Hairs?)

http://www.politico.com/story/2017/09/06/daca-dreamers-reaction-lindsey-graham-242370?cid=apn

Louis Nelson reports in Politico:

“Attorney General Jeff Sessions’ assertion Tuesday that so-called Dreamers have taken jobs away from American citizens is “wrong,” Sen. Lindsey Graham declared Wednesday morning, pushing back against his former Senate colleague and calling for compassion from Congress.

“Jeff Sessions is wrong. These kids are not taking jobs from American citizens, they’re part of our country,” Graham (R-S.C.) told NBC’s “Today” show, rebutting Sessions’ assertion from the previous day. “They’re fully employed for the most part, they’re in school, they will add great value. The president is right to want to have a heart for these kids.”

The attorney general’s comment about Dreamers, undocumented immigrants who were brought to the U.S. as children, came during his announcement that the Trump administration will rescind DACA, a program that offers work permits to Dreamers and protects them from deportation. Sessions, known as a hawk on immigration issues during his Senate tenure, blamed the program for hurting American job-seekers and for creating a “humanitarian crisis” on the U.S.-Mexico border.”

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Read the complete article at the link.

Sessions lacks credibility even with his own former colleagues from his own party.

PWS

09-06-17

CNN’S TAL KOPAN: The Good Guys Take The Field — File Suit To Protect Dreamers!

http://www.cnn.com/2017/09/06/politics/daca-trump-states-lawsuits/index.html

Tal reports:

“Washington (CNN)Conservative states may have boxed President Donald Trump into announcing an end for the Deferred Action for Childhood Arrivals program — but Democratic state attorneys general are already fighting back.

A coalition of 16 Democratic and nonpartisan state attorneys general filed suit in New York federal court on Wednesday to stop Trump’s sunset of DACA — the Obama-era program that protected young undocumented immigrants brought to the US as children from being deported — and they say Trump’s comments about Mexicans should be used against him.
The groups laid out five different constitutional arguments against Trump’s move, saying it was motivated by discriminatory reasons, that it violated due process by being “fundamentally unfair,” and that it violated laws that dictate procedures for federal regulations.
The lawyers note that most DACA recipients are of Mexican origin and devote a whole section to inflammatory statements Trump has made about Mexicans, including his attacks on a federal judge of Mexican descent.
“As President Trump’s statements about Mexico and those with Mexican roots show, the President has demonstrated a willingness to disparage Mexicans in a misguided attempt to secure support from his constituency, even when such impulses are impermissible motives for directing governmental policy,” the attorneys general wrote.
Trump’s statements as a candidate and President have been used against him in previous lawsuits, most notably challenges against his travel ban earlier this year.
The lawsuit also devotes a section to Texas, the state that pushed Trump to end the program, using a section to describe Texas as “a state found to have discriminated against Latinos/Hispanics nine times since 2012.”

Trump on Tuesday moved to sunset the DACA program, acting in response to a threat from 10 states led by Texas Attorney General Ken Paxton sent in late June, threatening Trump that they’d sue in an unfriendly court if the President didn’t end the program by September 5.
The President said his administration would not accept any new DACA applications from Tuesday onward and that any two-year DACA permits expiring after March 5, 2018, would not be renewed.
Now, those state officials’ Democratic counterparts are hoping they can have the opposite effect on the administration, succeeding in the courts to reinstate the program that has protected nearly 800,000 young people in its time and currently has nearly 700,000 people enrolled.
“Immigration is the lifeblood of New York State,” New York Attorney General Eric Schneiderman said in a statement. “The Trump administration’s decision to end DACA is cruel, inhumane, and devastating to the 42,000 New Yorkers who have been able to come out of the shadows and live a full life as a result of the program.”
“I filed suit against President Trump and his administration to protect DACA because Dreamers are just as American as first lady Melania Trump,” New Mexico Attorney General Hector Balderas said in a statement.

Justice Department spokesman Devin O’Malley said the department is ready to defend itself.
“As the attorney general said yesterday: ‘No greater good can be done for the overall health and well-being of our Republic, than preserving and strengthening the impartial rule of law,'” O’Malley said. “While the plaintiffs in today’s lawsuits may believe that an arbitrary circumvention of Congress is lawful, the Department of Justice looks forward to defending this administration’s position.”

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Read Tal’s complete article at the link.

I agree with Steve Yale-Loehr and other experts that Federal Courts (other, of course, than Judge Hanen in Texas) usually are reluctant to get into the area of prosecutorial discretion (“PD”). During my “Legacy INS” days, we successfully fended off numerous attempts to judicially review PD.

There were two areas, however, where we sometimes got “pushback” from Federal Judges. One involved claims of systematic racial, political, or nationality bias in PD decisions. The other involved claims that the Government had promised foreign nationals PD as an inducement for testimony or evidence in connection with criminal investigations.

Both of these appear to be implicated here. Indeed, Sessions’s anti-immigrant, anti-Latino rant from yesterday, replete with demonstrable misrepresentations and unfounded innuendo, should be a “treasure trove” for plaintiffs.

Additionally, as I pointed out in a blog from earlier this week, some Federal Judges are already on record as finding unfairness in the DHS practice of soliciting applications for humanitarian relief and then using the application information as proof of removability. The overwhelming majority of DACA applicants were not in enforcement proceedings. The came forward to USCIS voluntarily in response to a Government campaign urging them to apply and promising that application information would not be used against them.

In the past, the racially charged bombastic statements of Trump and his minions have been very useful to plaintiffs in making out a case of invidious motivation.

Finally, the claim that the Sessions DOJ is interested in preserving and strengthening the rule of law might well provoke laughter in the courtroom. And, Sessions won’t be able to prosecute Federal Judges for reacting to his disingenuous claims the same way he can threaten his activist critics. Indeed, I can only hope that the Federal Judge assigned to this case is astute enough to note that such a ridiculous claim is being made in behalf of a President who consistently disrespects the Federal Judiciary and whose sole act of clemency to date has been to pardon the notorious racist scofflaw “Sheriff Joe” who was held in contempt of Federal Court. “Rule of law” indeed!

PWS

09-06-17

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