Human Rights – Page 230 – immigrationcourtside.com

HuffPost: With Sessions Leading The Charge, Administration Abandons Transgender Children — Cites “States’ Rights” — Traditional Argument For Retrograde Government, Injustice, And Picking On Minorities!

http://www.huffingtonpost.com/entry/donald-trump-transgender_us_58ac4fe8e4b0a855d1d9d278?ncid=inblnkushpmg00000009

Amanda Terkel reports:

“President Donald Trump’s administration announced on Wednesday that it will no longer bar schools from discriminating against transgender students, rescinding a policy put in place by the previous administration.

“The prior guidance documents did not contain sufficient legal analysis or explain how the interpretation was consistent with the language of Title IX. The Department of Education and the Department of Justice therefore have withdrawn the guidance,” Attorney General Jeff Sessions said in a statement. “Congress, state legislatures, and local governments are in a position to adopt appropriate policies or laws addressing this issue. The Department of Justice remains committed to the proper interpretation and enforcement of Title IX and to its protections for all students, including LGBTQ students, from discrimination, bullying, and harassment.”

In May, under President Barack Obama, the departments of Education and Justice issued guidance mandating that any school that receives federal money must treat a student’s gender identity as his or her sex. Schools, for example, would therefore have to allow transgender individuals to use the restroom that corresponds to their gender identity, rather than the sex assigned to them at birth.

The federal government said at the time that transgender students were covered under Title IX, the statute that prohibits discrimination on the basis of sex. This interpretation had been on hold, however, after more than a dozen states sued the Obama administration and a judge issued an injunction in August.

Education Secretary Betsy DeVos was reportedly against rescinding the order and initially resisted signing off on it, but Sessions pushed her to do so because both departments had to agree in order to move forward.

In a statement Wednesday, DeVos said she considered protecting all students, including lesbian, gay, bisexual, transgender and queer students, “not only a key priority for the Department, but for every school in America.”

“This is an issue best solved at the state and local level. Schools, communities, and families can find ― and in many cases have found ― solutions that protect all students,” she added.

White House press secretary Sean Spicer argued during his press briefing earlier Wednesday that Title IX does not apply to transgender issues because there was no discussion of gender identity when the statute was passed in 1972. Judges and justices, however, often interpret laws and the Constitution to apply to new issues that arise.”

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Sure didn’t take Jeff Sessions long to prove his critics correct — that he is totally unqualified to hold the job of the nation ‘s chief lawyer and protector of “equal justice for all.” And, as someone from Alabama, with its sordid history of misuse of the rule of law against African Americans, Sessions knows exactly what the code term “States’ Rights” means. At least he made Betsy DeVos look almost, but not quite, good by comparison.

PWS

02/23/17

CNN: There Are Human Faces And Real Stories Of Horror, Pain, Perseverance, Belief, And Redemption Exposing The Trump Administration’s Wrong-Headed Attempt To Ban Refugees!

http://www.cnn.com/2017/02/21/us/travel-ban-somali-refugees-separated/index.html

Catherine E. Shoichet writes on CNN:

“For minutes that feel like hours, Abdalla and his family stand like statues in a line, their eyes laser focused on the set of escalators at Atlanta’s airport where waves of arriving passengers emerge.
Businessmen with briefcases, pilots in uniforms and families wearing winter coats come into view.
But so far, there’s no sign of Batulo.
Suddenly, Abdalla yells and bolts across the waiting area, past a bright red security line on the floor that says “DO NOT CROSS.”
Guards shout. He doesn’t hear them. To Abdalla, only one thing matters now. He sees his daughter’s face and sprints toward the light.
He sweeps Batulo into his arms and carries her like a running back toward a wall on the other side of the lobby. The rest of the family follows, like a trail behind a comet as it speeds through the sky.
Habibo sobs as she sits beside Batulo on the airport floor. They had feared this day would never come.
Habibo sobs as she sits beside Batulo on the airport floor. They had feared this day would never come.
Batulo is still wearing a plastic pouch around her neck, stuffed with a plane ticket and an ID card from the International Organization for Migration.
“I am a refugee from SOMALIA,” the card says. “I may not speak English and need help to find my next flight.”
Batulo flew more than 10,000 miles to get here, from Kakuma to Nairobi to Dubai to New York to Atlanta. American Airlines Flight 1687 brought her to a strange city, yet she is home.
Abdalla and his family sit on the airport floor, pressed together like puzzle pieces. They cling to each other, sobbing.
A new home
Batulo beams as she sips a can of Sprite through a straw.
Her sisters tug at her arms, pulling her from room to room as they show her their new home.
The living room floor is covered with plates stacked high with food that the family cooked together for hours as they awaited her arrival.
They sit in a circle, devouring baked chicken, fried fish, french fries and ugali, a cornmeal dish they prepared especially for Batulo.
Abdalla sends a voice message to Ramadhan, his oldest son, who’s still living in Kakuma. Batulo made it safely, he says.

Ramadhan replies that he’s relieved. “God willing,” he says, “someday I will make it, too.”
As they eat, Batulo’s family peppers her with questions.
Is there a still a mango hanging from the tree outside the transit center in Nairobi?
How many countries did you fly through to get here?
When we left, you didn’t look like this. Why are you so thin?
Ibrahim brings out some of his favorite new toys. Together, they sing the ABCs. He falls asleep, curled up on the floor beside his sister.
Abdalla yawns, then quickly gulps down a cup of coffee.
Exhaustion is starting to set in, but this is a moment he doesn’t want to miss. He leans back against the couch and listens to his daughters’ voices.
The only sound he hears is laughter.”

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Read the complete story and see the video and pictures at the link. Happy ending to this one, thanks to the U.S. Courts which stood up to President Trump and his minions. As you read the entire story, compare the real situation of real refugees, human beings in great need, with the “fake news” and fear mongering put forth by the Trump Administration in an attempt to justify the unjustifiable.

PWS

02/21/17

President Trump Takes Very Nuanced Approach To DACA Retention — See The Video Clip From CNN

http://www.cnn.com/2017/02/21/politics/dhs-immigration-guidance-detentions/index.html

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In the above video clip, President Trump takes a (perhaps surprisingly) very nuanced approach to the DACA kids. He realizes that most of them are wonderful and will do great things for America. He also sees the parallel with his own children and grandchildren.

I was encouraged that he appears to be listening to his own “better angels” here, rather than just to some of the “immigration hard-liners” surrounding him at the White House. And, he very correctly points out that one of the things he must do is sell his solution to Congress, including many members of his own party who might be skeptics.

Don’t know how this eventually will play out. But, overall, this shows a reflective side of the President that we don’t often see showcased or tweeted. Well worth the couple of minutes it takes to view.

PWS

02/21/17

Supremes Hear Case Today On Cross-Border Application Of U.S. Constitution!

https://www.washingtonpost.com/politics/courts_law/supreme-court-considers-case-of-a-shot-fired-in-us-that-killed-a-teenager-in-mexico/2017/02/19/c2935c36-f548-11e6-8d72-263470bf0401_story.html?hpid=hp_rhp-more-top-stories_no-name%3Ahomepage%2Fstory&utm_term=.47f4d29a4b1c

Robert Barnes writes in the Washington Post:

“The gun was fired in the United States. The bullet stopped 60 feet away in Mexico — tragically, in the head of a 15-year-old boy named Sergio Adrián Hernández Güereca.

Border patrol agent Jesus Mesa Jr. pulled the trigger that day six years ago in the wide concrete culvert that separates El Paso from Juarez, Mexico. On Tuesday, the Supreme Court will consider whether the Constitution gives Hernández’s parents the right to sue Mesa in American courts for killing their son.

The case comes amid a time of increasing tension and controversy over how this country polices the daily churn along the border, where essential international commerce takes place alongside narcotics trafficking and human smuggling.

Courts have struggled to deal with the national security and foreign policy implications of the case, and the Supreme Court’s precedents.

U.S. Border Patrol agent shoots Mexican teenager near border Play Video0:17
In 2010, U.S. Border Patrol Agent Jesus Mesa Jr. shot and killed 15-year-old Mexican national Sergio Hernandez while Hernandez was playing in a culvert separating Juarez, Mexico, from El Paso, Tex. A witness recorded the incident on their cell phone. (Outreach Strategists, LLC)
If Hernández had been killed inside the United States, then the case could proceed. Or if he had been a U.S. citizen, it would not have mattered that Mesa was on one side of the border and he was on the other.

But the courts so far in Hernández’s case have said the Constitution does not reach across the border — even 60 feet — to give rights to those without a previous connection to the United States.”

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The case is Hernandez v. Mesa, and either way the Court decides, it’s likely to play an important role in the effort to enhance U.S. border enforcement.

PWS

02/21/17

NYT Editorial Blasts Trump Administration’s Anti-Immigrant Fear Mongering!

https://www.nytimes.com/2017/02/18/opinion/sunday/breaking-the-anti-immigrant-fever.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-right-region&region=opinion-c-col-right-region&WT.nav=opinion-c-col-right-region

In an Editorial that first appeared on Feb. 18, 2017, the NY Times wrote:

“Another DACA recipient, Daniela Vargas of Jackson, Miss., barricades herself in her home after agents detain her father and brother. A mother of four, Jeanette Vizguerra, seeks refuge, alone, in a Denver church basement. A group of Latino men leaving a church-run homeless shelter near Alexandria, Va., are surrounded by a dozen immigration agents who question them, scan their fingerprints and arrest at least two of them. [Emphasis Added.]

President Trump’s defenders say the arrest numbers from Immigration and Customs Enforcement are comparable to those under President Barack Obama, an energetic deporter-in-chief. That may be true, for the moment, but the context is vastly different. Mr. Trump’s campaign pledges, his flurry of immigration-related executive orders, including his ban on certain travelers from Muslim countries, have a common thread. They reflect his abandonment of discretion, of common sense, his rejection of sound law-enforcement priorities that stress public safety and respect for the Constitution.

They prioritize fear instead.

ICE and the Border Patrol under Mr. Obama were ordered to focus on arresting serious criminals and national-security risks. Mr. Trump has removed those restraints in the name of bolstering his “deportation force.” He wants to triple the number of ICE agents. He wants to revive federal agreements to deputize state and local police officers as immigration officers. He wants to increase the number of detention beds and spur the boom in private prisons.

This vision is the one Donald Trump began outlining at the start of his campaign, when he slandered an entire country, Mexico, as an exporter of rapists and drug criminals, and an entire faith, Islam, as a global nest of murderers. This is the currency of the Trump aides Stephen Bannon and Stephen Miller, who have brought the world of the alt-right, with its white nationalist strain, into the White House.

Where could the demonizing and dehumanizing of the foreign born lead but to a whiter America? You have heard the lies from Mr. Trump: that immigrants pose a threat, when they are a boon. That murders are up, when they are down. That refugees flow unimpeded into the country, when they are the most meticulously vetted people to cross our borders. That immigrants and refugees are terrorists, when they are the ones being terrorized.

For those who would resist the administration, there is much to do, and not a lot of time. Congress is not a check. Democrats there are outnumbered, speaking out but waging symbolic resistance for now. Republicans are mostly split between avoiding the subject and cheering on Mr. Trump.”

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On a personal note, the “church shelter incident” involved the Rising Hope Mission Church in the Alexandria area of Fairfax, Co., VA. This church is devoted to meeting the needs of the most vulnerable in our community and is a mission outreach project funded by local United Methodist Churches, including the Beverley Hills Community United Methodist Church to which my wife and I belong. Among other things, Rising Hope serves as a hypothermia shelter, and actions like this by ICE serve to discourage individuals from seeking potentially life-saving assistance.

PWS

02/19/17

Professor Jill Family: “Disrupting Immigration Sovereignty”

http://yalejreg.com/nc/disrupting-immigration-sovereignty-by-jill-e-family/

From Yale Law’s “Notice & Comment:”

“This plenary power narrative stifles our ability to think rationally about immigration law policy and to build consensus. The narrative should not be that of a zero-sum game. The choice is not between absolute, unchecked authority and no government power over immigration. There is middle ground. The plenary power doctrine has been weakened over the last 128 years, and many immigrants are subject to constitutional protection today. In terms of facts, immigration is not inherently a threat. Immigration has done wonderful things for our country and immigrants have contributed in a variety of important ways.

We need a new immigration narrative that more accurately reflects law and fact. This narrative acknowledges that there is space for both government interests and individual rights in immigration law. To make progress, we need to disrupt the mindset that does not allow immigration and security to comfortably occupy the same space. It is possible to be secure and to welcome immigrants while promoting individual rights. This new narrative promotes the idea that the sovereignty of the United States incorporates our exceptional dedication to individual rights. It recognizes that allowing for powers not supervised by the Constitution is its own threat to our sovereignty.

The new narrative recognizes that both individual rights and government interests are important in immigration law. The government has an important role to play in fashioning immigration law policy for the country. Security is an important consideration. But so is protecting individual rights. Preserving the United States includes uplifting its most fundamental values, including the principle that absolute government power is not desirable. Allowing for individual rights to be considered in immigration law does not weaken sovereignty; it strengthens our sovereignty by helping to define who we are. It also sends even unsuccessful immigrants home with an experience to relay that reflects American values.”

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The Administration neither satisfactorily justified nor specifically explained the need for the “Travel Ban Executive Order.” The Obama Administration thoroughly vetted refugees. I have no doubt that they also carefully vetted visa applicants from all countries in the Middle East, North Africa, or any country in the world where terrorist movements are known to flourish. That’s probably why there were no known deaths from terrorist attacks by refugees in the U.S. for the past eight years.

There is no actual emergency to explain the type of “extraordinary measures” the Administration wants to put in place. That’s why most Federal Courts have been skeptical of the Administration’s motives.

The controversial Executive Order is also unnecessary. To date, no court has questioned the President’s authority to reduce FY 2017 refugee admissions to 50,000 (although arguably changes in the number of refugee admissions, either increases or decreases, should have been accompanied by statutory advance “consultation” with Congress, and it certainly would be possible to question the wisdom, necessity, and humanity of such a reduction). According to some sources, those reduced refugee admission numbers will soon be exhausted, perhaps as early as March.

Consequently, unless the President takes action to raise the number again, the refugee admission program will effectively be “suspended” until the beginning of the next fiscal year, Oct. 1, 2017, without any further action on the Administration’s part.

Additionally, the Administration has never explained exactly what type of additional “vetting” they would add to that already in place. There is certainly nothing stopping Secretary of State Tillerson from improving visa screening in any way that he deems necessary, provided that the “improvements” are not just a ruse for discrimination. Additional questioning of refugees both abroad and at the border hardly requires an Executive Order. As long as the inquiry legitimately aims at discovering possible grounds of inadmissibility, it’s well within the existing authority of the Secretary of State and the Secretary of Homeland Security.

The use of questionable terms like “extreme vetting” and singling out particular Muslim majority countries for a complete ban is unnecessarily inflammatory. It antagonizes the Muslim world (without making us any safer), while sending a highly inappropriate message about the Muslim religion to the American public, thereby encouraging hate, discrimination, and separation.

While the majority of Americans appear wise enough to emphatically reject the Administration’s false message, there is a significant minority who have adopted or been convinced by the Administration’s largely “fact free” attack on refugees and the Muslim religion.

We as a nation could well be in for some difficult times over the next four years. To persevere and prosper, the vast majority of Americans will need to pull together toward common goals. The Administration could help achieve that end by ditching the unnecessary and inappropriately divisive rhetoric about refugees, Muslims, and immigrants.

PWS

02/19/17

BREAKING: WashPost: DHS Memos Detail Ramped Up Enforcement — Key Provisions: 15,000 More Agents, More Detention, Expanded Expedited Removal, Return To Mexico Pending Hearings, Target U.S. Parents Of Smuggled Kids, More Use Of Locals To Enforce Immigration Laws, PD Restricted, More IJ Televideo To Border, More Scrutiny of Credible Fear — Border Patrol Union Happy — DACA Remains (For Now) — David Nakamura Reports — Read Memos Here!

https://www.washingtonpost.com/politics/memos-signed-by-dhs-secretary-describe-sweeping-new-guidelines-for-deporting-illegal-immigrants/2017/02/18/7538c072-f62c-11e6-8d72-263470bf0401_story.html?hpid=hp_rhp-top-table-main_dhs815pm%3Ahomepage%2Fstory&utm_term=.bcdb7a1851e0

“Homeland Security Secretary John F. Kelly has signed sweeping new guidelines that empower federal authorities to more aggressively detain and deport illegal immigrants inside the United States and at the border.

In a pair of memos, Kelly offered more detail on plans for the agency to hire thousands of additional enforcement agents, expand the pool of immigrants who are prioritized for removal, speed up deportation hearings and enlist local law enforcement to help make arrests.

The new directives would supersede nearly all of those issued under previous administrations, Kelly said, including measures from President Barack Obama aimed at focusing deportations exclusively on hardened criminals and those with terrorist ties.

. . . .

The memos don’t overturn one important directive from the Obama administration: a program called Deferred Action for Childhood Arrivals that has provided work permits to more than 750,000 immigrants who came to the country illegally as children.”

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Here are the two memos signed by Secretary Kelly (thanks to Professor Alberto Benitez):

http://www.mcclatchydc.com/news/politics-government/white-house/article133607784.ece/BINARY/DHS%20enforcement%20of%20immigration%20laws

http://www.mcclatchydc.com/news/politics-government/white-house/article133607789.ece/BINARY/DHS implementation border security policies

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Looks like everything is a “priority,” almost everyone will be detained, and DHS Assistant Chief Counsel won’t be offering PD or other negotiated “deals” except in extraordinary situations.

It’s not even clear from this whether the ACCs will still have authority to “waive appeal” in cases where the DHS loses. If not, that means that the BIA could also be overwhelmed with marginal DHS appeals.

While one of the memos notes the 534,000 Immigration Court backlog, there is a total disconnect in putting all these new priorities into Immigration Court without any plan for dealing with the 534,000 already there. (Most folks already here arrived at least two years ago, so even the greater use of expedited removal will leave hundreds of thousands of potential new filings for the Immigration Courts.)

When everything is a priority, nothing is a priority! Looks to me like another ill-conceived, “built to fail,” scheme. Over time, these plans are likely to be taken apart by the Article III Courts, bit by bit, piece by piece, until we have total chaos in the immigration enforcement system. Haste makes waste.

PWS

02/18/17

Opinion: Cato’s Jonathan Blanks On How Trump’s Immigration Policies Endanger Safety & Why “Sanctuary Cities” Are Right To Resist

https://www.washingtonpost.com/opinions/how-enforcing-trumps-immigration-actions-could-hurt-public-safety/2017/02/17/3644da9c-f553-11e6-b9c9-e83fce42fb61_story.html

Blanks writes in the Washington Post:

“Last week, federal immigration officials seized an unauthorized immigrant at an El Paso courthouse where she had been seeking a protective order against an alleged domestic abuser. The judge who oversees the court that issued the protective order expressed dismay that such a seizure took place when the person was seeking protection from violence, and perhaps acting on a tip provided by the alleged abuser himself.

President Trump has said his proposed actions to stiffen immigration enforcement are in the interests of public safety, but seizures such as the one in El Paso and the proposed revitalization of the 287(g) program that deputizes local law enforcement to enforce federal immigration law make the public less safe and interfere with local policing priorities.

Certainly, immigration enforcement falls within the federal government’s prerogative, regardless of one’s opinion on current immigration laws. However, that does not make every single enforcement action wise or justifiable. Moreover, the respect for federalism — the recognition of state and local governments’ priorities over the whims of Washington — has long been a mantra of small-government Republicans. Yet, it is hard to think of a larger and more dangerous federal intrusion into local affairs than undermining local law enforcement.

. . . .

The federal government has the authority to enforce its immigration laws, but it should do so with discretion and in a way that aligns with the public trust. Likewise, local law enforcement should be free to protect the communities they serve in line with each community’s best interests. Taking law enforcement actions against people seeking protection is dangerous and irresponsible. Threatening those most vulnerable to crime is anathema to improving public safety.”

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PWS

02/18/17

WashPost Politics: Sen. McCain Distances Himself From President Trump’s World View!

https://www.washingtonpost.com/politics/congress/mccain-slams-trump-in-munich-speech-without-using-his-name/2017/02/17/4f68236a-f564-11e6-9fb1-2d8f3fc9c0ed_story.html

Richard Lardner reports in the Post:

“WASHINGTON — Republican Sen. John McCain delivered a withering critique of President Donald Trump in a speech Friday that highlighted fractures within the GOP as the new administration struggles to overcome a chaotic start.

Speaking in Germany at the Munich Security Conference, McCain didn’t mention the president’s name, according to the prepared text, while he lamented a shift in the United States and Europe away from the “universal values” that forged the Western alliance seven decades ago. McCain is the chairman of the Armed Services Committee.

Trump has repeatedly questioned the value of NATO, calling the military pact obsolete, and sought instead to stoke a relationship with Russian President Vladimir Putin. However, Trump’s defense secretary, Jim Mattis, has accused Putin of wanting to break NATO.

McCain, who has openly quarreled with the president, said “more and more of our fellow citizens seem to be flirting with authoritarianism and romanticizing it as our moral equivalent.”

The senator lamented the “hardening resentment we see toward immigrants, and refugees, and minority groups, especially Muslims.” During the presidential campaign, Trump promised to stop Muslims from entering the U.S. and shortly after taking office issued an executive order banning travelers from seven predominantly Muslim nations.”

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Read the full article at the link.

PWS

02/18/17

HuffPost Reports ICE Arrest Of DV Victim At El Paso Courthouse

http://www.huffingtonpost.com/entry/el-paso-ice-detains-domestic-violence-victim_us_58a51f68e4b037d17d24cb2d

Elise Foley and Roque Planas report:

“AUSTIN, Texas ― Immigration and Customs Enforcement detained a domestic violence victim at an El Paso County Courthouse last week shortly after the undocumented immigrant obtained a protective order to shield her from the man accused of abusing her, according to a state news report.

The arrest, first reported by The El Paso Times on Wednesday, would mark a shift in ICE practice under President Donald Trump and has legal experts worried that it will dissuade women from seeking the protection of the courts when they face abuse.

Barbara Hines, who headed the immigration clinic at the University of Texas at Austin and still serves as a professor, said victims of domestic violence have options under the law to normalize their immigration status. The U Visa, for example, protects victims of violence from deportation if they agree to cooperate with law enforcement.

“That’s outrageous. That’s all I can say,” Hines told The Huffington Post, referring to the arrest. “This is very unusual. I would say it’s a terrible precedent and it will discourage survivors of abuse or people being abused from seeking the protection they’re entitled to under our laws…. This is going to make immigrant women fearful of going to the authorities, and it will result in more domestic violence because women will be too afraid to seek protection.”

ICE did not immediately respond to a request for comment.”

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The fear that police cooperation with ICE will dissuade the migrant community from reporting crime and cooperating with local police in solving crimes is one of the factors driving the so-called “Sanctuary Cities” movement.

PWS

02/16/17

Georgetown Law Journal Of National Security Law & Policy Announces Annual Symposium: The Border and Beyond: The National Security Implications Of Migration Refugees And Asylum Under U.S. And International Law, Feb. 28, 2017 — Elisa Massimino Of Human Rights First To Be Keynote Speaker — See Agenda And Register (Free) Here!

Share this:
Please Save the Date for the Journal of National Security Law & Policy annual symposium!
This year’s symposium is The Border and Beyond: The National Security Implications of Migration, Refugees, and Asylum under U.S. and International Law.
Please join us on Tuesday, February 28, 2017 at Georgetown Law.
In addition to the following three panels, the symposium will also feature a lunchtime keynote speech by Elisa Massimino, President and CEO of Human Rights First, one of the nation’s preeminent human rights advocacy organizations.
Panel 1: Immigration, Homeland Security, and the Constitution (9:05 – 10:30 AM)
Panelists will engage in debate on various constitutional issues, such as the separation of powers and the protection of civil liberties, in the context of recent events in the U.S. in which both migration and national security have been implicated.
Panelists:
Jen Daskal, Professor of Criminal, National Security, and Constitutional Law at American University Washington College of Law; former Assistant Attorney General for National Security at the Department of Justice
Lucas Guttentag, Professor of the Practice of Law at Stanford Law School; Founder and former National Director of the ACLU Immigrants’ Rights Project
Marty Lederman, Professor of Constitutional Law at Georgetown University Law Center; former Deputy Assistant Attorney General at the Department of Justice’s Office Legal Counsel
Moderator: William Banks, Professor of Law and Founder of Institute for National Security and Counterterrorism, Syracuse University College of Law

Panel 2: The U.S. Refugee and Asylum Legal Regime (10:35 AM – 12:00 PM)
Panelists will explore the current status of U.S. asylum and refugee laws and how the screening processes factor into national concerns. The panel will also discuss the Trump administration’s recent executive orders relating to border security and refugee policy in the U.S.
Panelists:
Mark Hetfield, President and CEO of HIAS, the oldest international migration and refugee resettlement agency in the U.S.
Anne Richard, Assistant Secretary of State for Population, Refugees, and Migration; Former Vice President of Government Relations and Advocacy for the International Rescue Committee
Shibley Telhami, the Anwar Sadat Professor for Peace and Development at University of Maryland-College Park
Moderator: Jason Dzubow, Partner at Dzubow & Pilcher, PLLC; Adjunct Professor of Asylum Law at George Washington University Law School
Luncheon and Keynote Address by Elisa Massamino (12:30 pm – 1:05 pm)
Panel 3: Migration and Security Threats Abroad (1:15 PM – 2:40 PM)
Panelists will discuss the security implications of the refugee crisis in Europe and the potential legal obligations that the U.S. might have under international law to assist its allies in handling the situation.
Panelists:
Bec Hamilton, Professor of National Security, International, and Criminal Law at American University Washington College of Law
Karin Johnston, Professor of International Politics at the American University School of International Service
A. Trevor Thrall, Senior Fellow for the Cato Institute’s Defense and Foreign Policy Department; Associate Professor at George Mason University’s Schar School of Policy and Government
Mark Iozzi, Democratic Counsel at the House Foreign Affairs Committee
Moderator: David Stewart, Professor of Law, Georgetown University Law Center

A reception will follow the event.

Please RSVP for the symposium here.

https://docs.google.com/forms/d/e/1FAIpQLSclFTIhYVbMzFNC5BHRIuTWrGgBNte_dVzmzcSe4vL5i59i1w/viewform

Thank you!
– The 2017 JNSLP Symposium Team

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Looks like a great program! And, with free lunch (just for you, Judge Larry Burman) and a free reception thrown in, what’s not to like about that!

Some of you might have seen Elisa Massimino on TV as she and Ashton Kutcher testified on human trafficking before a Senate Committee on Wednesday. These are all-star panels with my good friends Professor David Stewart and Adjunct Professor, blogger, and immigration practitioner Jason “The Asylumist” Dzubow serving as panel moderators.

See you there!

PWS

02/16/17

What Are The Odds Of The US Immigration Courts’ Surviving The Next Four Years?

What Are The Odds Of The U.S. Immigration Courts’ Survival?

by Paul Wickham Schmidt

Despite the campaign promises to make things great for the American working person, the Trump Administration so far has benefitted comedians, lawyers, reporters, and not many others. But there is another group out there reaping the benefits — oddsmakers. For example, Trump himself is 11-10 on finishing his term, and Press Secretary Sean “Spicey” Spicer is 4-7 to still be in office come New Year’s Day 2018.

So, what are the odds that the U.S. Immigration Courts will survive the next four years. Not very good, I’m afraid.

Already pushed to the brink of disaster, the Immigration Courts are likely to be totally overwhelmed by the the Trump Administration’s mindless “enforcement to the max” program which will potentially unleash a tidal waive of ill-advised new enforcement actions, detained hearings, bond hearings, credible fear reviews, and demands to move Immigration Judges to newly established detention centers along the Southern Border where due process is likely to take a back seat to expediency.

While Trump’s Executive Order promised at least another 15,000 DHS immigration enforcement officers, there was no such commitment to provide comparable staffing increases to the U.S. Immigration Courts. Indeed, we don’t even know at this point whether the Immigration Courts will be exempted from the hiring freeze.

At the same time, DHS Assistant Chief Counsel are likely to be stripped of their authority to offer prosecutorial discretion (“PD”), stipulate to grants of relief in well-documented cases, close cases for USCIS processing, and waive appeals.

Moreover, according to recent articles from the Wall Street Journal posted over on LexisNexis, individual respondents are likely to reciprocate by demanding their rights to full hearings, declining offers of “voluntary departure” without hearing, and appealing, rather than waiving appeal of, most orders of removal. Additionally, the Mexican government could start “slow walking” requests for documentation necessary to effect orders of removal.

Waiting in the wings, as I have mentioned in previous posts, are efforts to eliminate the so-called “Chevron doctrine” giving deference to certain BIA decisions, and constitutional challenges that could bring down the entire Federal Administrative Judiciary “house of cards.”

The sensible way of heading off disaster would be to establish an independent Article I Court outside the Executive Branch and then staff it to do its job. Sadly, however, sensibility so far has played little role in the Trump Administration. Solving the problem (or not) is likely to fall to the Article III Courts.

So, right now, I’m giving the U.S. Immigration Courts about 2-3 odds of making it through 2020. That’s a little better chance than “Spicey,” but worse than Trump himself.

To read the WSJ articles on the “clogging the courts” strategy, take this link over to LexisNexis:

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/archive/2017/02/13/will-strong-defensive-tactics-jam-immigration-jails-clog-immigration-courts-wsj.aspx?Redirected=true

PWS

02/14/17

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

Jennings final amicus brief

TABLE OF CONTENTS

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

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

Table of Contents—Continued:

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

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

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

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

III

Table of Contents—Continued:

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

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

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

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

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

PWS

02/14/17

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PWS

02/13/17

WashPost Political Analysis: More Lies & Obfuscation From Stephen Miller — Like His Boss, Miller Makes It Up As He Goes Along — But, He Does (Inadvertently) Reveal The Real Reason For The Bogus “Fraudulent Voter” Offensive: Lower The Turnout Among Those Groups Of Citizens Who Normally Vote For Democrats!

https://www.washingtonpost.com/news/politics/wp/2017/02/12/mixed-into-his-falsehoods-on-voter-fraud-stephen-miller-did-hit-on-one-truth/?hpid=hp_rhp-top-table-main_milleranalysis-135pm%3Ahomepage%2Fstory&utm_term=.34ef3ee8f935

Phillip Bump writes in the Washington Post:

“There’s a theory under which some people operate which holds that presidential advisers appear in the news media to provide insight into what the president is doing for the American people. Governance broadly, and the White House specifically, can be inscrutable to outsiders, but since our democracy depends on an informed populace, it has historically been important to shed as much light as possible on what’s happening. Politicians and their allies don’t always like to shed that light, but they’ve generally acquiesced to participating in the effort.

On ABC’s “This Week” on Sunday, President Trump’s adviser Stephen Miller wasn’t interested in shedding light on reality. If anything, he was running around turning lights off. Inadvertently, though, he did offer one bit of insight into what’s happening at the White House.

. . . .

Three claims here. First, that there are millions of people who are registered in multiple states. Second, that dead people are still registered. Both of those things are true. (Among those registered to vote in two places, by the way, are Trump’s son-in-law, treasury nominee, daughter and press secretary.) But that’s not voter fraud. It’s a sloppy registration system — and indifference from people whose first instincts when relatives die is not to ensure that the registrar of voters is informed.

The third claim is that 14 percent of noncitizens are registered to vote, which is based on an academic analysis released several years ago. It has been subsequently shown to be problematic. [In fact, it earned the coveted “Four Pinocchio Award” from the Post’s “Fact Checker” https://www.washingtonpost.com/news/fact-checker/wp/2016/10/24/no-eric-trump-14-percent-of-noncitizens-are-not-registered-to-vote/?tid=a_inl&utm_term=.3c0bdd64fa0c ] As anyone paying attention to the issue should know.

. . . .

Kobach is the secretary of state in Kansas, in charge of the state’s electoral process. He has held that position since 2011, the year the state passed new restrictions on voting in the name of preventing fraud.

The net effect? A report from the Government Accountability Office determined that turnout fell by several percentage points in the 2012 election relative to comparable states. And the populations that saw the biggest drops in turnout?
Young people, newly registered voters and black people. Populations that tend to vote more heavily Democratic.

That’s almost certainly the point. Miller was trying to mislead people with his false arguments about voter fraud. But he ended up offering some insight after all.”

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

Miller and Steve Bannon are among the remarkably unqualified guys that are pulling the strings from the Trump White House.

PWS

02/12/17

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