Category: Immigration Courts

Copy Of TRO By Judge Leonie Brinkema, EDVA, Prohibiting Removal Of LPRs & Requiring Access To Counsel — Aziz v. Trump

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

Case No. 1:17-cv-116

Date: January 28, 2017

Ammar Aqel Mohammed Aziz, by their next friend,

Aqel Muhammad Aziz, and

John Does 1-60, Petitioners,

v.

 

DONALD TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY (“DHS”); U.S. CUSTOMS AND BORDER PROTECTION (“CBP”); JOHN KELLY, Secretary of DHS; KEVIN K. MCALEENAN, Acting Commissioner of CBP; and WAYNE BIONDI, Customs and Border Protection (CBP) Port Director of the Area Port of Washington Dulles,

Respondents.
TEMPORARY RESTRAINING ORDER

Pursuant to Federal Rule of Civil Procedure 65, the Court orders that:

a) respondents shall permit lawyers access to all legal permanent residents being detained at Dulles International Airport;

b) respondents are forbidden from removing petitioners—lawful permanent residents at Dulles International Airport—for a period of 7 days from the issuance of this Order.

Dates: January 28, 2017

1

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

Seems pretty straightforward.  Lawful permanent residents (“green card holders”) returning from abroad are entitled to full Removal Hearings before a U.S. Immigration Judge at which the DHS bears the burden of establishing removability by clear and convincing evidence.  They are also entitled to representation by counsel of their own choosing (at no expense to the Government) in such a hearing.  Therefore, it’s hard to understand the the basis for the apparent DHS claim that they could detain and remove a returning green card holder without a hearing and without allowing him or her access to a lawyer.  But, I’ve read and heard reports from local attorneys saying that DHS CBP officials at Dulles International Airport have been slow to comply or resisted complying with Judge Brinkema’s very clear order.

I’ve never personally met Judge Brinkema, who sits in the U.S. District Court a few blocks from our home in Alexandria. But, I’m familiar with her work. Occasionally, one of my custody/bond decisions from the Arlington Immigration Court ended up before her for judicial review by habeas corpus. Sometimes she upheld my decision, sometimes not.

On several occasions, she ordered me to conduct immediate individualized custody hearings for detained individuals notwithstanding BIA precedent to the contrary. I always complied immediately, just as she had ordered. The DHS Arlington Chief Counsel also got on board. Judge Brinkema wasn’t someone you wanted to “mess around with.”

Unlike U.S. Immigration Judges, who were given statutory contempt of court powers by the Congress, only to have that authority withheld by the U.S. Dept. of Justice over three Administrations, Democratic and Republican, Judge Brinkema has authority to hold individuals, including U.S. Government officials, in contempt of court for disobeying her orders. And, I never had the impression that she would be reluctant to do that when necessary.

Additionally, failure to comply with court orders can result in large attorney fee awards against the Government under the Equal Access to Justice Act. If the reports of non-compliance are true, it seems that DHS and their lawyers are “playing with fire” here.

Remember guys, this isn’t Immigration Court. Article III Judges have life tenure, and they don’t work for the President. He’s just another party to them.

PWS

01/29/17

 

Related posts:

  1. GONZO’S WORLD: WHAT HAPPENS WHEN A DIVERSE “NATION OF IMMIGRANTS” ANOINTS A COMMITTED XENOPHOBE AS ITS CHIEF LAW OFFICER? – Gonzo Is Deconstructing Our System Of Justice, One Day At A Time!
  2. SCOFFLAWS OUTED AGAIN: U.S. DISTRICT JUDGE BLOCKS TRUMP’S ILLEGAL ATTACK ON ASYLUM LAW: ORDERS PROCESSING OF ALL WHO APPLY TO RESUME! — “Whatever the scope of the president’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden!”
  3. WHEN ARTICLE III COURTS FAIL: U.S. “Orbits” Refugee Families To Dangerous Chaos In Guatemala Under Clearly Fraudulent “Safe Third Country” Arrangements As Feckless U.S. Courts Fail To Enforce Constitutional Due Process & U.S. Asylum Laws In Face Of Trump Regime’s Contemptuous Scofflaw Conduct!
  4. GROSS NATIONAL DISGRACE: “A Fucking Disaster That Is Designed to Fail”: How Trump Wrecked America’s Immigration Courts — Fernanda Echavarri Reports For Mother Jones On How Our Failed Justice System Daily Abuses The Most Vulnerable While Feckless Legislators &   Smugly Complicit Article III Judges Look On & Ignore The Human Carnage They Are Enabling — “ Two days after US immigration officials sent her to Tijuana, she was raped.”

N. Rappaport Explains Trump’s EO On Interior Enforcement In The Hill!

http://thehill.com/blogs/pundits-blog/immigration/316654-on-immigration-trump-will-learn-promises-are-easier-made-than

Nolan concludes:

“President Trump deserves credit for trying to carry out his campaign promises on interior immigration enforcement, but it is a tall order. It always was.”

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

PWS

01/28/17

Related posts:

  1. NEW FROM THE HILL: N. RAPPAPORT SAYS “NO” TO MOST OF CAL SB 54, BUT WOULD LIKE TO FIND A COMPROMISE LEGISLATIVE SOLUTON TO HELP DREAMERS AND OTHER UNDOCUMENTED RESIDENTS!
  2. THE HILL: N. RAPPAPORT SAYS THAT EXPEDITED REMOVAL IS THE ANSWER TO IMMIGRATION COURT BACKLOGS – I DISAGREE!
  3. GONZO’S WORLD: HIS HIGHLY DISINGENUOUS “TRIBUTE” TO DR. KING WHILE ACTIVELY UNDERMINING MLK’S VISION OF RACIAL EQUALITY IN AMERICA OUTRAGES CIVIL RIGHTS ADVOCATES! — Hollow Words From An Empty Man!
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

CBS News: “Overloaded U.S. immigration courts a ‘recipe for disaster'”

http://www.cbsnews.com/news/trump-us-immigration-courts-deportations/

AIMEE PICCHI/MONEYWATCH writes:

“President Donald Trump is taking what he portrays as a hard-nosed approach to undocumented immigrants, issuing an order this week to boost the number of U.S. border patrol agents and to build detention centers.

But what happens when a federal push to ramp up arrests and deportations hits a severely backlogged federal court system?

“It’s a recipe for a due process disaster,” said Omar Jadwat, an attorney and director of the Immigrant Rights Project at the ACLU. Already, he pointed out, there are “large, large numbers of caseloads” in immigration court, and Mr. Trump’s directives threaten to greatly increase the number of people caught in the system, he said.

Just how backlogged is the system for adjudicating deportations and related legal matters? America’s immigration courts are now handling a record-breaking level of cases, with more than 533,000 cases currently pending, according to Syracuse University’s TRAC, a data gathering site that tracks the federal government’s enforcement activities. That figure is more than double the number when Mr. Obama took office in 2009.

As a result, immigrants awaiting their day in court face an average wait time of 678 days, or close to two years.
Immigrant rights advocates say the backlog is likely to worsen, citing Mr. Trump’s order on Wednesday to hire 5,000 additional border patrol agents while also enacting a freeze on government hiring. Whether the U.S. Justice Department, which oversees the immigration courts, will be able to add judges given the hiring freeze isn’t clear.

A spokeswoman from the DOJ’s Executive Office for Immigration Review said the agency is awaiting “further guidance” regarding the hiring freeze from the Office of Management and Budget and the Office of Personnel Management. In the meantime, she said, the agency “will continue, without pause, to protect the nation with the available resources it has today.”

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

There is video to go with the complete story at the link.

The situation is likely to get much worse in the U.S. Immigration Courts.  Obviously, due process is not going to be a high priority for this Administration.  And, while the Executive Orders can be read to give Attorney General Jeff Sessions authority to continue hiring Immigration Judges, filling the 75 or so currently vacant positions won’t begin to address the Immigration Courts’ workload problems.

Then, there are the questions of space and support staff. One of the reasons more vacancies haven’t been filled to date is that many Immigration Courts (for example, the U.S. Immigration Court in Arlington, VA) have simply run out of space for additional judges and staff.

The parent agency of the Immigration Courts, “EOIR,” is counting on being allowed to continue with expansion plans currently underway.  But, even if Attorney General Sessions goes forward with those plans, that space won’t be ready until later in 2017, and that’s highly optimistic.

This does not seem like an Administration that will be willing to wait for the current lengthy highly bureaucratic hiring system to operate or for new Immigration Judges to be trained and “brought up to speed.”  So various “gimmicks” to speed hiring, truncate training, and push the Administration’s “priority cases” — likely to be hundreds of thousands of additional cases — through the Immigration Courts and the Board of Immigration Appeals at breakneck speed.

Consequently, the whole “due process mess” eventually is likely to be thrown into the U.S. Courts of Appeals where “final orders of removal” are reviewed by Article III Judges with lifetime tenure, rather than by administrative judges appointed and supervised by the Attorney General.

PWS

01/28/17

 

 

 

Related posts:

  1. WASHINGTON POST: GONZO’S IMMIGRATION COURT “REFORMS” WILL CREATE “KANGAROO COURTS!” —Recent “moves to evaluate judges based on the speed with which they handle dockets that typically exceed 2,000 cases, rather than on fair adjudication, is a recipe for assembly-line injustice.”
  2. The Sessions Era Begins At The USDOJ
  3. VICTORY DANCE! — ICE’S HOMAN SAYS CLIMATE OF FEAR HAS STEMMED BORDER CROSSINGS & PROVES UNRESTRAINED, ARBITRARY IMMIGRATION ENFORCEMENT WORKS! — “There’s no population that’s off the table,” he said. “If you’re in the country illegally, we’re looking for you and we’re looking to apprehend you.” — America Won’t Be Truly Safe Until The Last Cook, Gardner, Construction Worker, Nanny, Janitor, Tree Cutter, Mechanic, Handyman, Carpenter, Home Health Aide, Computer Programmer, Healthcare Worker, Lettuce Picker, Cow Milker, Landscaper, Lawnmower, Bricklayer, Roofer, Window Washer, Waiter, Sandwich Artist, Teacher, Minister, Coach, Student, Parent, Clerk, Fisherman, Farmer, Maid, Chicken Plucker, Meat Processor, Etc., Without Docs Is Removed And US Citizens Take Over All These Jobs!
  4. JULIA PRESTON: CHAOS IN COURT! – TRUMP ADMINISTRATION’S MAL-ADMINISTRATION OF IMMIGRATION COURTS RUINS LIVES, FRUSTRATES JUDGES!

Rosenberg, Schmidt Reunite For “Mastermind First 100 Days” Online Seminar On Tuesday, January 31, 2017!

My good friend and former BIA colleague, Hon. Lory Rosenberg writes:

“I’m proud to announce that my former BIA colleague, Immigration Judge Paul W. Schmidt (Ret.) will join us as a special guest for the very first meeting of IDEAS First 100 Days Mastermind, at 4PM ET next Tuesday, January 31st!

I’ve invited Judge Schmidt to freely share his thoughts and ideas with us, as well as to participate fully in our mastermind discussion.
As we dig through the existing labrynthine immigration statute – the one with the unfixed ’96 — and as we confront the ill-advised, anti-immigrant Executive Orders just signed by President Trump – the ones that abrogate our refugee protection obligations – l know Judge Schmidt’s wisdom and reflections will provide priceless inspiration and guidance.”

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

Thanks for the kind words, Lory!  The feeling is mutual.  For more information on the seminar, go on over to Lory’s Mastermind website at:

http://www.loryrosenberg.com/First100days

PWS

01/28/17

Related posts:

  1. WASHINGTON POST: GONZO’S IMMIGRATION COURT “REFORMS” WILL CREATE “KANGAROO COURTS!” —Recent “moves to evaluate judges based on the speed with which they handle dockets that typically exceed 2,000 cases, rather than on fair adjudication, is a recipe for assembly-line injustice.”
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. JOURNAL ON MIGRATION & HUMAN SOCIETY (“JMHS”) PUBLISHES MY TRIBUTE TO JUAN OSUNA (1963-2017): “An Overview and Critique of US Immigration and Asylum Policies in the Trump Era”
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

Optimists’ Corner: Human Dialogue Overcomes Political Divide At Busboys & Poets

https://www.washingtonpost.com/news/inspired-life/wp/2017/01/24/not-race-not-gender-just-american-these-white-men-left-their-black-waitress-an-uplifting-note-and-a-450-tip/?postshare=4291485513678958&tid=ss_fb&utm_term=.b959856dabfa

Colby Ikowitz writes in the Washington Post:

“But she said the men left her with so much more. Their words were a reminder not to make assumptions. And that so many Americans want unity, regardless of their politics, and to not be afraid to connect with someone as human beings, she said.

“This definitely reshaped my perspective. Republican, Democrat, liberal are all subcategories to what we are experiencing,” she said. “It instills a lot of hope.”

For White, he said he wanted to show her that they probably have more in common than it would appear.

“As I sat there I thought about the entire weekend and I thought I don’t know her, she doesn’t know me, but if most Americans have a preconceived perception about people then we’re never going to get better,” he said.”

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

This “upbeat” take on today’s politics was forwarded to me by my ever optimistic friend, neighbor, and fellow dog walker Professor Alberto Benítez from GW Law. Teacher, role model, and steadfast advocate for social justice, human dignity, and understanding, Professor Benítez and his Clinic Students have been saving lives while doing good in the Arlington Immigration Court for many years. Lots of his alums are out there “making a difference every day” in Government, private practice, the NGO community, and academia.

One of the many great things the Professor has taught his student-attorneys is who really makes our justice system work at the “retail level:” of course, it is the dedicated, hard working, professional court staff who can tell you more about what the practice of law is actually about than almost any judge, prosecutor, or academic.  When I worked at Dane County Legal Services after my first year at U.W. Law, my supervising attorney immediately took me over to the courthouse and introduced me to the folks in the Clerk’s Office. He said “These are the people who are going to make you or break you as a lawyer, so treat them well and they’ll show you the ropes.” It’s a lesson I never forgot.

Another great thing about Professor Benítez is his “Wisconsin connection” through his wonderful wife Janice, a native of the famous Fox River Valley metropolis of Oshkosh (by gosh, there really is such a place)!

PWS

01/27/17

Related posts:

  1. MY MOST RECENT SPEECHES: “MY LIFE & TIMES” — CATHOLIC LEGAL IMMIGRATION NETWORK (“CLINIC”), July 18, 2017; “JOIN THE ‘NEW DUE PROCESS ARMY’ — FIGHT FOR DUE PROCESS IN THE UNITED STATES IMMIGRATION COURTS” — HUMAN RIGHTS FIRST, JULY 19, 2017
  2. U.S. IMMIGRATION COURTS APEAR STACKED AGAINST CENTRAL AMERICAN ASYLUM APPLICANTS — Charlotte, NC Approval Rates Far Below Those Elsewhere In 4th Circuit — Is Precedent Being Misapplied?
  3. ARLINGTON IMMIGRATION COURT: ANOTHER WIN FOR THE GOOD GUYS! – GW CLINIC HELPS EL SALVADORAN WOMAN & CHILDREN GET ASYLUM!
  4. 😎🗽⚖️ OF COURSE, GREAT LAWYERING MAKES A DIFFERENCE IN IMMIGRATION COURT! — Only Nativists & Former Director McHenry Would Bogusly Claim Otherwise! — Another “Real Life Success Story” From Professors Benitez & Vera @ The GW Law Immigration Clinic! — Garland’s DOJ “Goes Molasses In November” On Improving Access To Counsel & Elevating The “Pro Bono Experience!”

Arlington Immigration Court “Chatter” — Local Immigration Attorney Says “New Sheriff In Town” — The End of “PD”

From today’s e-mail “chatter:”

“For all those who said ‘he doesn’t mean what he says’ or ‘it will not be that bad’ that is now officially bullshit. As of this afternoon all DHS Office of Chief Counsel prosecutors have been instructed not to exercise prosecutorial discretion in removal cases. The most recent executive order from the White House lists as enforcement priorities for removal those who have been CHARGED with a criminal offense whether that offense is resolved or not. In immigration offices and courts throughout the US ‘there’s a new Sheriff in town’ is driving denials and deprivation of rights. We have closed our doors to refugees and now will embark on an interior campaign against immigrants. And it is day 6.”

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

Sad, but predictable, based on yesterday’s Interior Enforcement Executive Order.  While it lasted, prosecutorial discretion (“PD”) was one of the best and smartest policies ever applied by immigration prosecutors.

It was a “quadruple winner:”  prosecutors got low priority cases off their overcrowded dockets; overtaxed Immigration Courts could concentrate on more important cases; respondents with equities, good records, who had lived productive lives, and paid taxes got (limited, but potentially life-saving) humanitarian relief that the courts could not offer; and communities, employers, and families in the United States got to retain individuals who were contributing to our country in large and small ways.

But, as I’ve indicated before, sometimes philosophical roadblocks (including bias and prejudice) blind folks to their own self interest. And, I’m NOT talking about the DHS Counsel here;  their hands are tied and clearly nobody asked them before the politicos changed the policies.  They are just the “messengers” for policies that they don’t necessarily endorse.

PWS

01/26/17

Related posts:

  1. DUE PROCESS WINS IN 9TH CIR! – DHS & IJS REQUIRED TO CONSIDER “ABILITY TO PAY” IN SETTING BOND! – HERNANDEZ V. SESSIONS
  2. THE HILL: NOLAN SAYS THERE IS A BETTER WAY TO ADDRESS PROBLEMS AT ICE
  3. SEE PT. II OF NBC4’S “CRISIS IN THE IMMIGRATION COURTS” FEATURING INTERVIEWS WITH ME — Understand Why This System Must Be Changed NOW!
  4. BREAKING: I-TEAM 4 UNCOVERS HARD EVIDENCE THAT TRUMP ADMINISTRATION POLICIES ARE MAKING IMMIGRATION COURT BACKLOGS WORSE! — “ADR” Rips Off Taxpayers While Denying Due Process! — See More Of Award-Winning Investigative Reporter Jodie Fleischer’s Interview With Me!

Sanctuary Wars: The Republic, And Its Cities, Strike Back!

Immigration beat reporter Beth Fertig of WNYC/NPR reports:

“There is no single definition of a sanctuary city, and policies vary tremendously across the country. But in New York City, immigration agents are not allowed in the jails. When immigrants without legal status are arrested, they can only be detained or turned over to federal agents for deportation if there’s a warrant and they’ve been convicted of a violent crime. A 2014 local law spells out nearly 170 different offenses that meet that definition. They include various forms of assault, arson and sex crimes.

Council Speaker Melissa Mark Viverito said these limits make sense.

“If you’re committing a nonviolent offense but you’re otherwise contributing positively to the city, why should you be torn apart from your family?”

Police Commissioner James O’Neill and Mayor Bill de Blasio joined the argument Wednesday, saying that immigrants will be less likely to cooperate with law enforcement if they’re afraid of deportation. “We build trust,” said O’Neill. “I wouldn’t want to do anything to put that at risk.”

Trump’s order changes enforcement priorities, too. In addition to aliens convicted of criminal offenses, the Department of Homeland security will also prioritize those who have been “charged with any criminal offense, where such charge has not been resolved.”

Avideh Moussavian, a policy attorney with the National Immigration Law Center, warned that this policy could lead to “gross infractions of due process protections.”

She said people could become enforcement priorities if “they have been merely charged with an offense, even if their charge is pending and turns out later to be dismissed.”

From a practical standpoint, it would be very difficult to deport more immigrants. The nation’s immigration courts have a tremendous backlog of cases. Judges who handle immigration cases estimate there are 75 vacancies among their ranks, and Trump has imposed a federal hiring freeze. However, the executive order means that the freeze on judges could be lifted in the name of national security.”

Read Beth’s complete article, including comments from Heather Mac Donald of the Manhattan Institute  in favor of the President’s crackdown at:

http://www.wnyc.org/story/why-sanctuary-city-dispute-about-safety/

Mollie Reilly, Deputy Politics Editor, and her colleagues write on HuffPost:

“Independent of the ultimate legality of the executive order, politicians from those sanctuary cities say they aren’t budging, and legal advocacy groups are gearing up for the coming legal fight.
The president is “in for one hell of a fight,” California state Sen. Scott Weiner (D), who represents San Francisco, said in a statement.
Boston Mayor Marty Walsh (D) said his city “will not retreat one inch” from its policy against holding undocumented immigrants it otherwise would not hold based on requests from Immigration and Customs Enforcement, and Seattle Mayor Ed Murray said his city “will not be intimidated by the authoritarian message coming from this administration.” San Francisco Mayor Ed Lee (D) said “nothing has changed” in his city, noting the lack of specifics in Trump’s order.
“We are going to fight this, and cities and states around the country are going to fight this,” New York Mayor Bill de Blasio (D) said at a press conference Wednesday.
New York Attorney General Eric Schneiderman (D) already began hinting at a legal challenge, releasing a statement that Trump lacks the constitutional authority for his executive order and that he will do “everything in [his] power” to push back if the president does not rescind it.
Washington state Attorney General Bob Ferguson (D) also warned of potential legal challenges to come, saying in a statement that the order “raises significant legal issues that my office will be investigating closely to protect the constitutional and human rights of the people of our state.”
There’s no exact definition of “sanctuary city.” Places like San Francisco and New York use the term broadly to refer to their immigrant-friendly policies, but more generally the term is applied to cities and counties that do not reflexively honor all of Immigration and Customs Enforcement’s requests for cooperation. Many of these localities do work with ICE to detain and hand over immigrants suspected or convicted of serious crimes, but they often release low-priority immigrants requested by ICE if they have no other reason to hold them.
“The reason that many local law enforcement officers don’t honor detainers is because courts have said that they violate the Constitution, and if they violate the Constitution, the localities are on the hook financially,” said Cesar Cuauhtemoc Garcia Hernandez, a law professor at the University of Denver who teaches on the intersection of criminal law and immigration.
Just on Tuesday, a federal court in Rhode Island joined several others that have ruled in recent years that certain ICE detainers can violate people’s constitutional rights ― even those of U.S. citizens.
But Trump’s executive order seems to overlook this legal reality, and instead frames sanctuary cities with the alarmist rhetoric he used on the campaign trail.”

Read Mollie & co.’s complete report here:

http://www.huffingtonpost.com/entry/trump-sanctuary-cities_us_

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

PWS

01/26/17

Related posts:

  1. BREAKING: NPR’s Beth Fertig Exposes Administration’s Immigration Court Due Process Disaster — Taxpayers Billed For Sending Judges To Hustle Detainees Through Court Without Lawyers, Leaving More Represented Cases At Home To Rot! — Backlogs Mushroom As Administration Plays Games With Human Lives!
  2. MLK DAY 2018 — DR. KING’S DREAM OF AN AMERICA CELEBRATING EQUALITY & RACIAL HARMONY IS UNDER VICIOUS ATTACK BY TRUMP, PENCE, SESSIONS, AND A HOST OF OTHERS IN TODAY’S WHITE NATIONALIST ENABLING GOP — Who Is Going To Fight To Reclaim The Dream, & Who Is Going To “Go Along To Get Along” With The 21st Century Version Of Jim Crow?
  3. ELISE FOLEY @ HUFFPOST: TRUMP’S WHITE NATIONALIST AGENDA APPEARS ON TRACK TO SINK DREAMER AGREEMENT, PERHAPS RESULTING IN USG SHUTDOWN! – Sen. Durbin, Dems “Just Say No” To Restrictionist Measures!
  4. FOUR TODDLERS RESCUED BY PRO BONO LAWYERS FROM DEADLY SITUATION IN CBP CUSTODY — Putrid, Unsanitary, Repressive Conditions Causing Lifetime Harm To Other Traumatized Kids — But, Border Patrol Chief Carla Provost Wants You To Know That She’s Not Taking Responsibility For The Humanitarian Disaster Intentionally Engineered On Her Watch!

Fox News: Text Of President Trump’s Executive Order On Interior Enforcement!

http://www.foxnews.com/politics/2017/01/25/text-trump-executive-order-on-enhancing-public-safety-in-interior-united-states.html

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

Wow!  Incredibly broad!  Probably easier to determine what isn’t a priority (offhand, I’d say something like “undocumented migrants already in the United States who have lived lives completely free from any run-ins with the law” — and, there are definitely quite a few of those) than what is!

Unlike the Border Enforcement Executive Order, which specifically requires detention of arriving migrants with very narrow, case-by-case, exceptions, this order does not specifically direct immigration officials to detain all interior removal “priorities.”  But, it certainly is implicit in the President’s Order that all of the stated removal priorities “present a significant threat to national security and public safety.”  That’s probably going to result in at least a de facto “presumption of detention” in all priority cases.  And, regulations, precedents, or other directives from the Secretary of Homeland Security and the Attorney General could specifically establish such a presumption.

So, everyone arriving at the border without documentation is a priority and will be thrown in detention.  And, everyone in the interior who is undocumented and has ever been arrested, charged, or committed any crime, no matter how minor, and regardless of whether convicted, will also be prioritized, and most of them will be thrown in detention.

Consequently, almost everybody in Immigration Court will be a “Detained Priority” or an “Enforcement Priority” of some type.  That’s going to mean yet another massive re-shuffling of dockets.

And, since almost everyone will be detained, there will be even more excruciating pressure on already stressed and overwhelmed U.S. Immigration Judges to “move” these cases, without much regard to due process, because detention will be costing a fortune (and the Supremes well might place a limit on the duration of “pre-hearing” detention).

In that case, why would anybody interested in being a “real” judge who isn’t already in the system and not eligible to retire, want the Immigration Judge’s job?  Yes, I’m sure that there will be many lawyers out there who need jobs and will apply.  But, they are likely to be those who see being a “judge” in the Executive Branch under such circumstances as a law enforcement position, rather than a chance to be an impartial “umpire,” scholar, or dispenser of balanced and deliberative due process.

Perhaps, the initiative will be a huge enforcement success; the Article III Courts will sign on and basically dispense with any semblance of “normal” due process for migrants, thus allowing them essentially to be railroaded out of the U.S.  Obviously, that’s what the Administration is counting on.

Alternatively, however, the Article III Courts might “dig in” and insist on scrupulously fair hearings, thereby essentially grinding all enforcement to a halt and forcing massive “re-dos” of already “expedited” and “prioritized” cases.  In that event, the  initiative will turn out to be a colossal and incredibly expensive failure.

I suspect that the Supremes will have to sort this out in the fairly near future.  In the past, a Supreme Court with the late Justice Antonin Scalia sitting frequently vindicated the rights of migrants against attempted Government overreaching by Administrations of both parties.  So, it’s by no means a “given” that a Supreme Court with a disciple of Justice Scalia as the new Justice would necessarily endorse all aspects of the President’s enforcement initiatives.  We’ll just have to wait and see.

And, surprisingly, particularly to those who think that this is a “great” idea, the answer may affect the due process rights of more than just migrants.  You never know when you yourself might be in need of a little due process.  It often happens to those who least expect it.

Meanwhile, “back at the ranch,” not only is it a great time not to be a refugee, but it’s a really great time to be retired from the USG (and, the U.S. Immigration Court, in particular).

PWS

01/25/17

 

Related posts:

  1. ATTN “COURTSIDERS” – HEAR ME “LIVE” ON RADIO IN RICHMOND, VA, THE INTERNET, AND FACEBOOK TOMORROW, FRIDAY, DEC. 8, 2017!
  2. 🤡WELCOME TO CLOWN COURT: Where The Lives Of Millions Of Humans & The Future Of America Are Treated Like A Cruel Joke, As Complicit Article III Courts Watch This Grotesque Unconstitutional Spectacle & Parody Of Justice Unfold On Their Watch!
  3. 🏴‍☠️☠️🤮⚰️🆘AMERICA’S SHAME — NATIONAL DISGRACE – SYSTEMIC INSTITUTIONAL FAILURE: From Supremes Who Abandoned Their Key Precedent In Cardoza-Fonseca, To A 5th Cir. Court Of Appeals That Shirked Its Duty To Protect Refugees, To A “Don’t Rock The Boat” BIA That Failed To Enforce Uniformity, To Unqualified & Biased Immigration “Judges” Who Created Illegal, “Asylum-Free Zones,” The U.S. Asylum System Was In Deep Trouble Even Before Trump – Under Trump, It Has Become A “Killing Floor” Programmed To Intentionally Deny & Deport Deserving Refugees To Death, Torture, Or Grotesque Mistreatment, As Indolent, Cloistered Article IIIs, Unwilling To Dig In & Stop The Slaughter Look On!
  4. MARCIA BROWN @ NEW REPUBLIC — There Can Be No Due Process Without An Independent Immigration Court Staffed By Qualified Judges!

Fifth Circuit Says CAT “Government Acquiescence” Not Not Limited to “Willful Blindness”

Here’s the full text of the decision IRUEGAS-VALDEZ v. YATES:

http://www.ca5.uscourts.gov/opinions/pub/15/15-60532-CV0.pdf

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

Basically, the Fifth Circuit (hardly a pro migrant forum) requires the BIA and the Immigration Judge to follow the Federal Regulations on the Convention Against Torture (“CAT”).

Ever since the CAT became the effective, the BIA and the Attorney General have worked hard to restrict protection based on torture. But, little by little, almost all of the U.S. Courts of Appeals have been chipping away at these overly restrictive interpretations.

Here, the Fifth Circuit points out that in its haste to affirm the Immigration Judge and deny protection, the BIA failed to apply the Executive’s own regulations, which allow for the granting of protection in a significantly larger set of circumstances, particularly where corrupt government officials act “under color of law,” than the Board and the Attorney General have been willing to admit.

Because torture by or with the acquiescence of foreign government officials is widespread in many refugee sending countries, and because the CAT has no specific “nexus” requirement that the torture be tied to any specific “protected ground,” the CAT has the potential to become a much more useful means of gaining needed protection as the law develops. And, because CAT protection does not give individuals “green cards” of put them on the “path to citizenship” (although it usually does provide work authorization), it might be a compromise between returning individuals to countries where their lives would be in danger and creating an incentive for those who seek permanent status in the U.S.

As I used to tell individuals before me who wanted asylum but had to settle for CAT protection, “all it does is save your life.” Depending on how important one considers his or her life, that might significant.

PWS

01/24/17

Related posts:

  1. WITH HELP FROM SIDLEY AUSTIN (LA), “OUR GANG” OF RETIRED IJs WEIGHS IN WITH 5th CIR. AGAINST BIA’S WRONG-HEADED PRECEDENT IN Matter of W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018)!
  2. 🏴‍☠️☠️👎🏻KAKISTOCRACY KORNER: It’s Hard For The Gov. To Lose An Immigration Case In The Fifth Circuit — The BIA Pulled It Off! —“Berhe contends that the BIA, which affirmed the IJ with little analysis, failed to employ a mixed-motive analysis. On further consideration, we agree.”
  3. ☠️YET ANOTHER DEADLY,  ⚰️ RIDICULOUS 🤡 EOIR MELTDOWN 🤮 OUTED! — Conservative 5th Circuit Excoriates BIA & Immigration Judge For Litany Of Errors In 38-Page Smackdown — Another Wrongful Denial Of Asylum To Honduran Exhausts Patience Of Even Normally Pro-Gov. Circuit Court!
  4. 🏴‍☠️👎🏽BIA BLOWS DUTY TO ADJUDICATE CAT, OIL MISREPRESENTS RECORD BEFORE CIRCUIT — Latest 5th Cir. Reject Shows Festering Competence & Ethical Problems @ Garland’s DOJ!🤮 — The BIA Ignores Matter of L-O-G-, But YOU Shouldn’t!

Rivkin & Grossman In WSJ: Why Captive Administrative Courts Are “Built To Fail” In Delivering Due Process!

http://www.wsj.com/articles/when-is-a-judge-not-really-a-judge-1485215998

David B. Rivkin, Jr. and Andrew M. Grossman write in the WSJ:

“Administrative law judges are agency employees. The proceedings they oversee provide fewer protections than court cases. They also tend to set stern deadlines and limit the right to factual investigation, often leaving defendants to rely on the SEC’s evidence. According to a 2015 Wall Street Journal analysis, the agency’s shift paid off: Through the beginning of that year, it won 90% of cases in its in-house court, compared with 69% of regular court cases. Administrative decisions can be appealed to court but are rarely reversed. That’s because the judges apply a deferential “clear error” standard to the agency’s factual findings.

The due-process problems inherent in this arrangement are apparent. Less obvious, at least to the SEC, is that it also violates the Constitution’s Appointments Clause, which requires Senate hearings and confirmation votes for department heads and other senior officials. To promote political accountability, the Constitution also requires that “inferior officers” with significant responsibility be appointed by the president or senior officials who are confirmed by the Senate.”

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

Although Rivkin and Grossman were writing about Administrative Law Judges within the SEC, most of the same arguments could be made about U.S. Immigration Judges within the Department of Justice.

The article suggests that if successful, challenges to the existing administrative judiciary in the Article III Courts might bring down the entire 80-year largely failed experiment with specialized administrative courts attempting to mete out justice within the enforcement arm of the Executive Branch.  That, in turn, would require the creation of more truly independent specialized courts, such as the Tax Court and the Bankruptcy Court, and/or the transfer of many additional cases to the Article III Courts, where they perhaps could be handled by appointing more U.S. Magistrate Judges.

PWS

01/24/17

Related posts:

  1. WASHINGTON POST: “DEATH PENALTY IN TRAFFIC COURT” — BIG STAKES, LITTLE COURTS, FLAWED PROCEDURES, IMPROPER POLITICAL INFLUENCE, SOME JUDGES WHO FAIL TO PROTECT INDIVIDUAL RIGHTS LEAD TO LIFE-THREATENING ERRORS ON A DAILY BASIS IN OVERWHELMED U.S. IMMIGRATION COURTS. — What If YOU or YOUR Loved Were On Trial In This Godforsaken Corner Of Our Justice System Controlled By Jeff “Gonzo Aocalypto” Sessions!
  2. AN “OPEN LETTER PROPOSAL” FROM TWO UW LAW ‘73 RETIRED JUDGES — We’ve Spent 90+ Collective Years Working To Improve The Quality & Delivery Of Justice In America On Both The State & Federal Levels, In The Private & Public Sectors — What We’re Seeing Now Is Shocking, Heartbreaking, Inexcusable, & Unnecessary — It’s Time For Legislators & Policy Makers To Start Listening To Those Of Us With New Ideas Based On “Real Life” Experiences & Observation!
  3. “LET ‘EM DIE IN MEXICO” UPDATE: SAN DIEGO IMMIGRATION JUDGES STAND UP AGAINST TRUMP REGIME’S LAWLESS BEHAVIOR — Elsewhere Along The Border, Most Judges Appear To “Go Along To Get Along” With White Nationalist Agenda!
  4. “SITTING DUCKS” IN “UNSAFE THIRD COUNTRIES” — How The Supremes, The 9th Circuit, The 5th Circuit, & Other Complicit Federal Appellate Courts Aid & Abet The Trump Regime’s Human Rights Violations — Would The “Privileged Robed Ones” Take Due Process & The Rule Of Law More Seriously If It Were THEIR Kids & Grandkids Being Kidnapped & Held for Ransom For The “Crime” Of Seeking Protection Under U.S. Laws?  

President Trump Taps Career Prosecutor Rod J. Rosenstein For #2 Slot At Justice!

https://en.m.wikipedia.org/wiki/Rod_J._Rosenstein

“Rod J. Rosenstein (born in 1965) is the United States Attorney for the United States District Court for the District of Maryland and a former nominee to the United States Court of Appeals for the Fourth Circuit.

President-elect Donald Trump nominated Rosenstein to serve as Deputy Attorney General for the United States Department of Justice on January 13, 2017.”

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

Mr. Rosenstein appears to be a good choice for Deputy Attorney General.  Traditionally, the Deputy Attorney General has, among many other duties, had primary responsibility for overseeing the Executive Office for Immigration Review (“EOIR”), which administers the U.S. Immigration Courts.  Hopefully, Mr. Rosenstein’s extensive “hands on” experience in the Article III Federal Courts — he still personally litigates some cases — will lead him to focus some positive attention on the situation of the overwhelmed U.S. Immigration Courts.

Mr. Rosenstein’s full Wikipedia bio is at the above link.

PWS

01/24/17

 

Related posts:

  1. GONZO’S WORLD: NO DEFENSE! – SESSIONS MIA AS TRUMP AND GOP ATTACK INTEGRITY OF DOJ!
  2. ON SATURDAY, “COURTSIDE” & SLATE’S JEREMY STAHL GAVE YOU THE “REAL LOWDOWN” ON AAG RACHEL BRAND’S “FLIGHT FROM JUSTICE!” — Two Days Later, NBC News Confirms What We Already Said!
  3. 🏴‍☠️☠️🤮⚰️👎CRIMES AGAINST HUMANITY, “PERPS” ON THE LOOSE! — DOJ Internal Report Shows How “Gonzo Apocalypto” Sessions, Rosenstein, Hamilton Conspired To Separate Migrant Kids In Violation Of 5th Amendment — When Will These Criminals Be Charged & Prosecuted Under 18 USC 242? — NY Times Reports!
  4. CRIME BLOTTER: CHILD ABUSE🤮☠️⚰️🦹🏿‍♀️: DOJ IG REPORT CONFIRMS WHAT COURTSIDE & OTHERS KNEW FROM THE START: Trump, Sessions, Miller, Rosenstein, Hamilton Are Cowards🐓, Lying 🤥 Criminals, Child Abusers🦹🏿‍♀️, Who Belong Behind Bars For Intentionally Abusing Asylum Seeking Families & Kids & Then Having Their Sleazy DOJ Lawyers Lie To Federal Judges! — What Happened To “Due Diligence” As An Ethical Requirement For Government Lawyers?

Washington Post: Q&As On Fed Hiring Freeze — Many DOJ Employees (Including Immigration Courts) Might Be Exempt — Employees On Board On 01-22-17 NOT Affected!

https://www.washingtonpost.com/news/powerpost/wp/2017/01/23/what-does-a-hiring-freeze-mean-for-the-federal-workforce/?hpid=hp_rhp-top-table-main_freeze-pp-1213pm:homepage/story&utm_term=.16a898e72b47

“Are all federal employees affected?

No. The wording of his memorandum exempts “military personnel” and says “the head of any executive department or agency may exempt from the hiring freeze any positions that it deems necessary to meet national security or public safety responsibilities.”

“Military personnel” generally refers to those in uniform, but if Trump also means civilian employees of the Defense Department, that alone would exclude about a third of the workforce.

Exempting public safety could wall off much of other large agencies such as the Justice Department and the Department of Homeland Security. If public safety includes public health workers, more would be excluded.

. . . .

How would a freeze be implemented?

Trump’s order says “no vacant positions existing at noon on January 22, 2017, may be filled and no new positions may be created, except in limited circumstances.” The directors of the Office of Management and Budget and the Office of Personnel Management were told to “recommend a long-term plan to reduce the size of the Federal Government’s workforce through attrition. This order shall expire upon implementation of the OMB plan.” The memorandum also “does not revoke any appointment to Federal service made prior to January 22, 2017.”

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

Looks like understaffed Immigration Courts might be able to continue hiring.  But, can’t tell for sure at this point.  If somebody out there has more specific information relating to Immigration Court hiring, please let me know.

PWS

01/23/17

Related posts:

  1. The Sessions Era Begins At The USDOJ
  2. Julia Preston (Retired From The NYT, Now At The Marshall Project) Explains Trump’s Immigration Executive Orders
  3. What Are The Odds Of The US Immigration Courts’ Surviving The Next Four Years?
  4. 🇺🇸⚖️🗽👍🏼🏆👏🏽GOOD GOVERNMENT: BELEAGUERED FEDS WOULD FIND WELCOME RESPITE IN BIDEN ADMINISTRATION! — This Election Could Be “Last Call” For One Of The Cornerstones Of Our Democracy — A Competent, Honest, Career Civil Service!

Judge Posner, Split 7th Circuit, Slam IJ, BIA On Denial Of Protection To Honduran With HIV!

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2017/D01-19/C:15-2619:J:Posner:aut:T:fnOp:N:1898108:S:0

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

The case, full text at the above link, is VELASQUEZ‐BANEGAS, v. LYNCH.  

I agree with Judge Posner’s bottom line that protection should have been granted on this record.  But, I think that he was overly harsh on the Immigration Judge.

These would be difficult cases for any judge at any level of our system.  One of the significant problems is that the Appellate Division of the Immigration Court, the Board of Immigration Appeals (“BIA”) has failed to provide adequate positive guidance on granting protection.

The overwhelming number of BIA precedent cases dealing with asylum, withholding of removal, and relief under the Convention Against Torture are denials by the BIA.  But, even with asylum grant levels leveling off and actually falling slightly over the past several years, the majority of applicants for protection actually qualify for some form of relief at the trial level based on fear of persecution or torture.

The unnecessarily negative approach of the BIA in its precedent decisions both gives a misleading negative guidance to Immigration Judges and creates the impression with U.S. Court of Appeals Judges that the system is even more skewed against applicants than it actually is.

Although I agreed with the majority in Velasquez, I think that the concluding paragraph of the Judge Ripple’s dissent also makes some good points:

“Immigration cases always pose a special burden on United States judges. As Jacques Maritain so eloquently put it: “We are all wounded souls.” See Jacques Maritain, Réflexions sur lʹAmerique 87–91 (1958). Every American, including every United States judge, has a family memory that includes ancestors who came from some place where life was not as good as it is here. The DNA of our national character makes it very difficult to tell an individual that he cannot enjoy the same liberty, safety, and security that we enjoy. When the individual suffers from a medical condition that cannot be treated as well in the country to which he is returned, basic humanitarian values make the task even more difficult. No doubt, those who must make necessary policy choices and those who must enforce those choices feel, or should feel, that same angst. But immigration must be regulated, and, in this Country, national policy is set by Congress and enforced by the Executive. Our own task as judges is limited. Because the immigration judge’s determinations were supported by substantial evidence, I respectfully dissent.”

Food for thought.

PWS

01/23/17

 

Related posts:

  1. U.S. IMMIGRATION JUDGES CAN BREATHE EASIER: Judge Richard “Dickie The P” Posner Retires — 7th Cir. Jurist Was Caustic, Unrelenting Critic Of U.S. Immigration Courts!
  2. 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!
  3. THE “MAINSTREAM MEDIA” HAS FALLEN FOR BILLY BARR’S LATEST “CON JOB” HOOK, LINE & SINKER — But YOU Shouldn’t — Bess Levin @! Vanity Fair Decodes Billy’s Real Message to His Don: “Let [me] turn the judicial branch into your own personal score-settling operation in peace!“  — Plus, My Bonus “Friday Essay” — “Don’t Believe A Word Billy Barr Says!”
  4. CONTEMPT FOR COURTS: 7TH CIR. BLASTS BIA FOR MISCONDUCT: “We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails.” — Baez-Sanchez v. Barr — Chief “Perp” Billy Barr remains at large to inflict more wanton damage on our republic, our legal system, and the most vulnerable humans!

Washington Post: As Promised, President Trump Imposes Federal Hiring Freeze — Impact On Immigration Courts Unclear!

https://www.washingtonpost.com/news/powerpost/wp/2017/01/23/trump-freezes-federal-hiring/?tid=hybrid_collaborative_1_na&utm_term=.ec045f3827e3

“President Trump issued an executive order Monday freezing federal hiring. The hiring freeze excludes national security employees.

A hiring freeze was included in the Trump presidential campaign’s “Contract with the American Voter.” It was the second of six measures “to clean up the corruption and special interest collusion in Washington, D.C.” and part of his “100-day action plan to Make America Great Again.”

The plan excludes the “military, public safety, and public health.”

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

I imagine we will hear shortly from the DOJ/EOIR on how this affects hiring for the U.S. Immigration Courts.  Stay tuned.

PWS

01/23/17

Related posts:

  1. Julia Preston (Retired From The NYT, Now At The Marshall Project) Explains Trump’s Immigration Executive Orders
  2. The Sessions Era Begins At The USDOJ
  3. Zoe Tillman on BuzzFeed: U.S. Immigration Courts Are Overwhelmed — Administration’s New Enforcement Priorities Could Spell Disaster! (I’m Quoted In This Article, Along With Other Current & Former U.S. Immigration Judges)
  4. ABA JOURNAL: Superstar Reporter Lorelei Laird Exposes The Impending Disaster In The U.S. Immigration Courts! (I Am One Of Her Quoted Sources)

In Memoriam: U.S. Immigration Judge Philip L. Morace — Scholar, Outstanding Jurist, Beloved Colleague, And Kind Compassionate Human Being

I am sad to announce the death on Friday, January 20, 2017, of one of the most admired and respected U.S. Immigration Judges, Hon. Philip L. Morace of the U.S. Immigration Court in New York, New York.  Judge Morace was widely known by his colleagues, the government, the private bar, and the immigrant community as a gentleman, a scholar, an amazing colleague, and the very embodiment of the Immigration Court’s ideal of “through teamwork and innovation . . . guaranteeing fairness and due process for all.”

Judge Morace was educated at Fordham University and the Brooklyn Law School and served in private practice and with the U.S. Marine Corps before being appointed to the bench in September 1995.  He was a member of the New York Bar.

Please join me in offering sympathy to Judge Morace’s family, his colleagues, and the New York immigration community on this great loss.  Judge Morace’s inspiring example will be long remembered and emulated.

PWS

01/22/17

Related posts:

  1. “THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT” — My Speech To The Association Of Deportation Defense Attorneys, NY City, March 21, 2019
  2. TRAGEDY STRIKES IMMIGRATION COURT FAMILY — U.S. District Judge Sandra Feuerstein, Daughter Of Late Immigration Judge Annette Elstein Killed In FLA Hit & Run — History Maker Was Part Of First Mother – Daughter Duo In Federal Judiciary!
  3. GARLAND/MAYORKAS UNILATERAL “IN YOUR FACE” 🤮 ASYLUM POLICIES CONTINUE TO INFLAME, OUTRAGE, PROGRESSIVE OPPOSITION! — More Haste Makes Waste “Special Asylum Dockets,” Continuation Of “Miller Lite” Racist/Misogynist Anti-Asylum Policies, Unqualified Judges, Likely To Deny Due Process, Create Aimless Docket Reshuffling, Increase Backlogs — Congress Needs To Remove Immigration Courts From Garland’s Dysfunctional DOJ — Now!
  4. ⚖️ THE GIBSON REPORT — 10-11-21 — NYC Attorneys & Clients Bear Brunt of Garland’s Failure To Fix Immigration Courts 🤮 — “Aimless Docket Reshuffling” (“ADR”) Imposed By Clueless Administrators Frustrates Lawyers, Denies Due Process, Builds Backlogs! — Plus Lots Of Other Immigration News Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group!