Immigration Courts – Page 193 – immigrationcourtside.com

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

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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

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

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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

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.”

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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

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.”

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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

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.”

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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

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

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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

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.”

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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

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

Sunny Thoughts On A Dreary Day In DC — Read More From WNYC/NPR Reporter Beth Fertig — The “New Due Process Army” Takes the Field — Bronx Defenders and Courtney M. Lee (Former Arlington Immigration Court Intern And Star Georgetown CALS Asylum Clinic & RLP Student) Work To Save Lives & Insure Due Process In Our Immigration Courts Every Day!

https://www.wnyc.org/story/free-lawyers-provided-city-help-more-immigrants-detention-win-cases/

Beth Fertig writes:

“Arturo had his most recent hearing in December, in front of Judge Patricia Buchanan. He wore an orange jumpsuit with the initials of the Hudson County Department of Correction on the back, and his hands were shackled. The 31-year-old is five-foot-three and slim, and appeared very nervous. He sat with his team from Bronx Defenders, [Supervisory Attorney Sarah Deri] Oshiro and Law Graduate Courtney Lee, and a court-appointed translator. There was also an attorney from Immigration and Customs Enforcement, James McCarthy.

Arturo’s case is very complicated and his team has a few different claims. They are asking the court to withhold his deportation on the grounds that he’ll be persecuted or tortured if he goes back to Mexico.

“His stepfather subjected him to — during his entire childhood and adolescence — to really severe constant and consistent sexual, physical and psychological abuse,” Lee explained.

In court, she asked Arturo to recall some of the beatings and how his mother and siblings are still living in terror. He said the abuse continued even after he arrived in New York and sent his mother money to leave the man. He described in Spanish how he feared his stepfather would kill him if he moved back to Mexico, because he was the one who helped his mother escape. And he said he had no other place to live except for the town in which they reside. But Judge Buchanan appeared skeptical. She asked if he had any family in New York when he first arrived in 2004, and he said no.

Arturo’s legal team is also seeking to halt his deportation by arguing his two young children would be harmed. Immigrants who have lived in the U.S. illegally for at least 10 years can apply for a cancellation of removal if an American citizen would suffer “exceptional and unusual hardship.”

It’s a tough bar to meet, and it doesn’t help Arturo’s case that he has a few convictions for misdemeanors, including breaking a store window when he was drunk and possession of marijuana. But his advocates argued that these are minor and were related to the traumas he suffered as a child. He told the court he stopped using marijuana and alcohol after his children were born, to set a “good example.” His advocates said he also has an employer who believes in him, and wants to hire him back.

Because Arturo is the primary breadwinner, they argued deporting him would put the children at risk of homelessness. His partner, the children’s mother, is already fighting eviction proceedings. And Arturo said the stress from his detention has caused his seven year-old son to wet the bed and barely eat. But McCarthy, of I.C.E., argued that the children seem healthy and are not experiencing “exceptional and unusual hardship.”

The judge had to stop the proceedings at noon because she had too many other cases that day. She scheduled Arturo’s next hearing in February, almost a year after he was sent to detention.”

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Go to Beth’s full article at the link for a fantastic picture of Courtney and her Supervisory Attorney Sarah Deri Oshiro. Way to go, Courtney and Sarah!

These days, in retirement, in addition to writing, I attend many events, give lots of speeches, and guest lecture at law schools and colleges, all largely directed at pointing out why refugees and other migrants make America great, the sad state of our United States Immigration Court System, the overwhelming importance of working to force our Immigration Courts to live up to their unfulfilled promise to “guarantee fairness and due process for all,” and the compelling need for reforms to make the Immigration Courts independent from the Executive Branch.

Almost everywhere I go, I run into great attorneys who once were Judicial Law Clerks or interns for the U.S. Immigration Court in Arlington, appeared in Immigration Court under clinical practice programs sponsored by local law schools (like Georgetown’s famous CALS Asylum Clinic), or are former students who took my Refugee Law and Policy (“RLP”) course at Georgetown Law in 2012-14. There are all, without exception, doing absolutely wonderful things to advance the cause of fairness and due process for migrants.

They are all over: projects like Bronx Defenders, NGOs, pro bono organizations, big law, small law, public interest law, courts, government agencies, Capitol Hill, academia, journalism, management, and administrative positions. I call them the “New Due Process Army” and they are going to keep fighting the “good fight” to force the Immigration Courts and the rest of our justice system to live up to the promise of “fairness and due process for all” whether that takes two years, ten years, twenty years, or one hundred years. If we all keep at it and support one another it will eventually happen!

Last night, I was at a very moving retirement ceremony for Shelly Pitterman, the United Nations High Commissioner for Refugees Regional Representative for the United States and the Caribbean. Fortunately, Shelly is going to remain in the human rights field, joining Mark Hetfield and the other wonderful folks over at the Hebrew Immigrant Aid Society (“HIAS”). I wish I had gotten to know Shelly better. He was repeatedly described as a dynamic leader who inspired everyone around him to perform at a higher level (just like Aaron Rodgers of the Pack), apparently even on the softball field!

In attendance were two of our “total superstar” former Arlington Immigration Court legal interns, Katie Tobin and Lindsay Jenkins, both Assistant Protection Officers (one of the most coveted jobs) with the UNHCR. Accomplished attorneys, dynamic leaders, and terrific role models in they own rights, Katie and Lindsay are using their education and experience to live out their deeply held values every day and to help make the world a fairer, more humane, and better place for all of us. Both of them represent the true values of the real America: fairness, scholarship, respect, teamwork, and industriousness (not to mention a sense of humor).

To Courtney, Katie, Lindsay, and all the other “soldiers” of the “New Due Process Army” thanks for what you are doing for all of us every day! It is an honor to know you and to have played a role, however modest, in your quest to make the world an even greater place.

PWS

01/20/17

Obama DOJ’s Failed Priorities Leave Backlogs, “Frontlogs,” And Overall Docket Chaos As Legacy To United States Immigration Courts!

http://trac.syr.edu/whatsnew/email.170117.html

TRAC Immigration writes:

“(17 Jan 2017) The number of judges is still insufficient to handle the growing backlog in the Immigration Court. The court’s crushing workload reached a record-breaking 533,909 pending cases as the court closed out calendar year 2016, up 4.2 percent in just the last four months.
The problem is particularly acute for priority cases involving women with children according to the latest court data updated through the end of December 2016 and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. Pending priority cases for these families jumped by more than 20 percent (21.9%) in just the last four months. The backlog of these family cases alone totaled 102,342 last month, surpassing 100,000 cases for the first time.

The number of pending priority cases involving unaccompanied children also has continued to climb, reaching 75,582 at the December 2016. Together with family cases, this priority workload now accounts for fully one third (33%) of the court’s overall record backlog.”

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How totally sad and disappointing for those of us who care deeply about the due process mission of our United States Immigration Courts! The Obama Administration had eight full years to make the necessary reforms to put the United States Immigration Courts back on track to achieving their “due process vision.” Instead, alternating indifference to and interference with the due process mission of the Immigration Courts made a bad situation even worse. And, unlike the Article III Courts, the U.S. Immigration Courts are a “wholly-owned subsidiary” of the DOJ and the Administration. So, Republicans can’t be blamed for this one. In fact, recently the Republican-controlled Congress provided strong bi-partisan support for the Immigration Courts by authorizing and funding additional U.S. Immigration Judge positions (many of which, however, remained unfilled at the end of the Obama Administration).

We’ll see what happens next. But, if the results aren’t happy for due process, Democrats are going to have to shoulder much of the blame.

PWS

01/20/17

Quartz Media Reporter Ana Campoy “Nails” The Obama Administration’s Failed Southern Border Strategy — “We like to advertise ourselves as a beacon of liberty and justice; it’s time we acted that way.” (Quoting Me)

THE LAW IS THE LAW
The US doesn’t have an immigration problem—it has a refugee problem
Ana Campoy January 18, 2017

http://trac.syr.edu/whatsnew/email.170117.html

Quote boxes:

“In fact, Trump’s fixation with blocking illegal immigration from Mexico, which has plummeted in recent years, obfuscates the problem. Yes, border patrol agents are apprehending thousands of people every month along the US-Mexico line, but many of them—around half, according to Claire McCaskill, a member of the US Senate’s homeland security and governmental affairs committee—turn themselves in voluntarily asking for help. Government statistics bear this out. The number of immigrants claiming fear of persecution or torture in their home countries is on the rise, and so are the findings that those claims are credible. In order to be considered for asylum by an immigration judge, immigrants first have to go through a “credible fear” screening, in which an asylum officer determines whether the claims they are making have a “significant possibility” of holding up in court.

More than 70% of those who claimed credible fear in the 2016 fiscal year hailed from El Salvador, Honduras, and Guatemala, places beset by rampant violence.

Under US law, individuals who are found to have credible fear have the right to due process to determine the validity of their claims in the court. Whether they are Syrians escaping civil war, or El Salvadorans fleeing from criminal gangs, what they have to prove is the same: that they face persecution because of their race, religion, nationality, membership in a particular social group, or political opinion.

But US authorities don’t always take Central American immigrants’ fears seriously, studies suggest. One, released by the American Immigration Lawyers Association in 2016, found that not all border patrol agents are asking immigrants if they’re afraid to return to their country, as they are required to do. Other agents refuse to believe them, per the report, which is based on immigrant testimony documented by the group. Another 2016 analysis, by the US Commission on International Religious Freedom, a government advisory body, noted, “outright skepticism, if not hostility, toward asylum claims” by certain officers, among other practices that may be resulting in deportations of refugees with a legitimate right to stay.

A US Customs and Border Protection (CBP) spokesman said the agency “strives to treat every person we encounter with dignity and respect.” Anyone with concerns about the treatment doled out by its officers can call the agency, he added.”

. . . .

“The Obama administration’s response has already run up against the law. For example, several courts have shot down the government’s arguments and efforts to justify the detention of children and families while their cases wait to be resolved—a policy meant to convince would-be immigrants to stay home.

On Jan. 13, a coalition of immigrant rights groups filed a formal complaint with the Department of Homeland Security’s Office for Civil Rights and Civil Liberties accusing CBP officers of turning back people requesting asylum at ports of entry along the US-Mexico border. In what the groups called an “alarming new trend,” the officers have allegedly been telling immigrants that they can’t enter the country without a visa— contrary to US law—and referring them to Mexican immigration authorities.

Trump has framed his border policy as a choice between enforcing existing laws against illegal immigration or skirting them. But the decision facing US leaders is rather more complicated: Should the US continue providing refuge to those who are unfairly persecuted in their home countries?

If Americans are unwilling to do that, perhaps it’s time to do away with the nation’s asylum laws—and remove the famous poem at the base of the Statue of Liberty welcoming the world’s “huddled masses yearning to breathe free.”

Recently retired immigration judge Paul Wickham Schmidt put it this way: “We like to advertise ourselves as a beacon of liberty and justice; it’s time we acted that way.”

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In my view, Ana Campoy provides a remarkably clear and well-documented analysis of why the Obama Administration’s “get tough” border policies have failed, and why the Trump Administration would be wise to take a more “nuanced” approach that recognizes our obligation to provide due process and protection under our laws to individuals fleeing from the Northern Triangle.

As incoming DHS Secretary Gen. John Kelly has recognized, this problem can’t be solved just by (even more) enhanced enforcement on our end. It will require addressing the systemic problems in the sending countries of the Northern Triangle, which certainly have most of the characteristics of “failed states,” as well as working with other stable democratic nations in the Americas to fashion meaningful protections, inside or outside the asylum system, for those who are likely to face torture, death, or other types of clear human rights abuses if returned to the Northern Triangle at present.

It’s not an easy problem to solve, and there are no “silver bullets.” But, we know what doesn’t work. So, it sure seems like it would be a good idea to try different approaches (and I don’t mean repealing asylum protections as Ana, somewhat facetiously suggests near the end of her article).

PWS

01/19/17

USG Bid To Max Criminal Deportation Law May Be On The Rocks Before The Supremes!

http://www.latimes.com/politics/la-na-supreme-court-deport-burglars-20170117-story.html

David G. Savage writes in the L.A. Times:

“The law in this area is not entirely clear. Beginning in 1988, Congress ordered deportation for noncitizens who are convicted of an “aggravated felony,” and it cited specific examples such as murder and rape. Later the law was expanded to include a general category of “crimes of violence.” This was defined to include offenses that involve a use of physical force or a “substantial risk” that force would be used.

Judges have been divided as to what crimes call for deportation. Looming over Tuesday’s argument was an opinion written two years ago by the late Justice Antonin Scalia. He spoke for an 8-to-1 majority in striking down part of a federal law known as the Armed Career Criminal Act. It called for extra years in prison for people convicted of more than one violent felony.

In that case, the extra prison term was triggered by the defendant’s possession of a shotgun. In frustration, Scalia and his colleagues said the law was unconstitutionally vague because they could not decide whether gun possession is itself evidence of a violent crime.

“You could say the exact same thing about burglary,” Justice Elena Kagan said Tuesday. A midday burglary of a home could result in violence, she said, but perhaps not if it were an empty garage or an abandoned house. “So it seems like we’re replicating the same kind of confusion,” she said.

Justice Stephen G. Breyer said judges have no way to decide which crimes typically or usually involve violence. “We’re just left guessing,” he said, suggesting a better approach would be “look at what the person did.”

But Deputy Solicitor Gen. Edwin Kneedler said a home burglary poses a risk of violence. And he said the court should defer to the government on matters of immigration. The law, he said, calls for a “broad delegation” of authority to executive officials.

This is the argument government lawyers made in defense of President Obama’s use of executive authority to try to shield millions of immigrants from deportation. It is also the argument that would call for upholding an aggressive deportation policy if pursued by the Trump administration.”

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Interesting juxtaposition here! The key opinion relied on by the immigrant is an 8-1 decision in Johnson v. United States, 135 S.Ct. 2551 (2015), written by conservative judicial icon Justice Antonin Scalia in which he ripped apart on constitutional vagueness grounds a provision of the Armed Career Criminal Act that is virtually identical to the deportation statute.

The Obama Administration reacted by vigorously reasserting in the lower courts and the Immigration Courts its right to ignore Justice Scalia’s reasoning in the civil deportation context and continue to deport individuals convicted of residential burglary.

But, liberal judicial icon Judge Stephen Reinhardt and one of his colleagues on the Ninth Court of Appeals seized on Scalia’s opinion and applied it to the immigration law to block such deportations. The Seventh Circuit followed suit, but the Fifth Circuit did not, thereby setting up a “circuit split” — something that often convinces the Supreme Court to exercise its discretionary authority to intervene by granting a “writ of certiorari.”

The case is Lynch v. Dimaya, No. 15-1498 which, as pointed out by David Savage, will soon morph into Sessions v. Dimaya. Stay tuned for the results!

Did you know that: The Government’s lawyer in Dimaya, career Deputy Solicitor General Edwin Kneedler, a friend and an outstanding public servant, has argued more than 125 U.S. Supreme Court cases during his distinguished Government career, more than any other living lawyer!

Wow! Most lawyers would feel lucky and privileged to argue a single case before the Supreme Court. I know I sure would. Just think of the hours of preparation spent in preparing to argue well over 100 cases!

When I was Deputy General Counsel and Acting General Counsel of the Legacy INS, I used to help the Solicitor General’s Office prepare for oral arguments in immigration cases. So, I know how intensive the preparation process is.

At least once, I was asked to sit with the Deputy SG arguing the case at counsel table in the Court. That was as close as I ever got to appearing before the Court.

I remember one case that I observed — I can’t remember if I was at counsel table or in the audience — was the immigration classic INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) establishing the generous “well-founded fear = reasonable likelihood” standard for asylum, which I ended up having to apply thousands of times as a trial and appellate judge in the Immigration Courts. That day, however, we were on the “losing” side of the argument, having presented the case for a more stringent standard. Nevertheless, I think the Court got it completely right.

The “winning” lawyer before the Court that day was a young immigration attorney from San Francisco, Dana Marks Keener, now known as Judge Dana Leigh Marks of the San Francisco Immigration Court and the President of the National Association of Immigration Judges. Since then, of course, Dana and I have become judicial colleagues and great friends. I often refer to her as “the founding mother of modern U.S. asylum law.”

Small world.

PWS

01/18/17

Washington Post: What’s It Really Like To Be A Syrian Refugee In America?

https://www.washingtonpost.com/local/were-definitely-scared-a-refugee-family-contemplates-president-trump/2017/01/17/237983ee-d6a0-11e6-9a36-1d296534b31e_story.html?hpid=hp_local-news2_refugee-915am%3Ahomepage%2Fstory&utm_term=.9b3146fad22d

Justin Wm. Moyer writes in today’s Post:

“In Daraa, Syria, their home town about 70 miles south of Damascus, they huddled in a makeshift shelter as the city exploded around them. Their infant daughter, sick with a virus and smoke inhalation, had to be hospitalized. Even after horror upon horror — trigger-happy soldiers at checkpoints, barrel bombs — they tried to convince themselves that they could stay until they fled in 2013.

“The hardest thing we ever had to do was leave,” Jbawi said.

Then came purgatory: a month in a refugee camp followed by three years in Jordan as they waited for placement. There were background checks and interviews with U.S. officials before the relocation application was approved.

“This is your chance to make your life better,” Jamal Jbawi, Nadia’s husband, recalled being told.

Now comes Trump. Jamal Jbawi, 39, said the family has experienced no racism since their arrival. Not everything can change on Inauguration Day. Can it?

. . . .

Four years ago, Jamal Jbawi was teaching English literature to teenagers in Syria. Shakespeare was his favorite, particularly “King Lear” and “Hamlet” — the latter for its depiction of the “conflict between good and evil,” he said.

After surviving a civil war, he makes a living in quality control for Danko Arlington, a 97-year-old aluminum sand foundry. Without a car, he wakes at 4:30 a.m. and takes a 90-minute bus ride to the factory in Baltimore’s rugged Arlington neighborhood.

“Public transportation is very bad,” he said.

Jamal Jbawi inspects airplane parts for $11 per hour, working four, 10-hour shifts per week. Just getting back to work — any kind of work — after years in Jordan is a blessing.

“The factory is very kind,” he said.”

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

This is a great article that emphasizes some thing things about refugees that often are overlooked or distorted.

First, as I’ve said many times, “nobody wants to be a refugee.” It just happens. And, frankly, it could happen to any of us, at any time, particularly when we least expect it. All of us who have the great fortune not to be refugees should be thanking our lucky stars every day! It’s a matter of luck, not merit on our part.

Most refugees, like the Jbawis, were leading stable, productive, and often prosperous lives in their home countries. They had to leave everything they knew and had worked so hard for behind. Like most of us, they never expected that events beyond their control would force them to flee to a strange and new foreign land, no matter how hospitable that land might prove to be.

Second, the article confirms something that always struck me when hearing asylum cases at the Arlington Immigration Court: the extreme amount of abuse that many refugees would accept to avoid leaving their home countries.

After graphic stories of brutal arrests, imprisonments, repeated beatings, torture, and death threats, the question often came up “why didn’t you leave sooner?” Sometimes it was just a question of not having the opportunity to leave. Other times, people were reluctant to leave behind, family, friends, jobs, churches, and community.

But, a surprising number of people, particularly political dissidents and religious dissenters, expressed an unusual degree of optimism that things were going to change for the better, that their party would win the elections, that the government would eventually allow them to worship, or that the government would forget about them and move on to heap abuse on another disfavored group. This was true even when all of the objective evidence suggested that their torment would have no happy ending.

In other words, they were in denial. Their innate desire to avoid disruptive change outweighed the objective evidence that they would be better off going sooner rather than later.

It’s hard to get people to make fundamental changes in their established living patterns. That’s why refugees are exceptional individuals: risk takers, resourceful, courageous, ambitious, hard working, and flexible. That’s exactly the kind of person America needs to build an even greater future for all of us.

PWS

01/18/17

Another Installment In The Schmidt Making America Really Great Series: “Refugees And Due Process Make America Really Great” — Read My Speech From Last Night’s “Refugee Ball”

REFUGEES AND DUE PROCESS MAKE AMERICA REALLY GREAT

Remarks by Paul Wickham Schmidt,

Retired United States Immigration Judge

The Refugee Ball

Sixth & I Synagogue 600 I Street, N.W. Washington, DC 20001

Tuesday, January 17, 2017 from 5:00 to 9:00 PM

Good evening, everyone. I’m honored to be here. Lets have a big round of applause for Jason Dzubow and his staff for coming up with the idea and putting this together!

As you can probably tell, it was a battle getting into my “Jones Day Spring Prom Era Tux” tonight. As I walked out the door, my wife Cathy said: “Are you actually going to be able to breathe, let alone speak, in that thing?”

As a “regular” at the Arlington Immigration Court, Jason obviously is quite familiar with my habits. I noted that on the advance program he took the extreme precaution of not only putting me in a “10-minute slot” near the end of the program, but also adding in parentheses in big bold letters “10 minutes max.” So, I get the picture, Jason. I’m going to briefly address two things that make America great: refugees and due process.

I’m pleased to back in the old ‘hood, although it’s hard to recognize. For about twelve years in the 1970s and 1980s I worked in the General Counsel’s Office of the “Legacy INS” in the famous Chester Arthur Building – the only monument in Washington to our great 21^st President –— at 425 Eye St., NW, just down the street. And, one of my most memorable accomplishments during that time was being part of the “team” that helped the Refugee Act of 1980 become law. It was a chance to make a positive difference in America’s future, indeed in the world’s future, while coming into contact with some of the finest intellects in the business: David Martin, Alex Aleinikoff, Doris Meissner, the late Jerry Tinker, and the late Jack Perkins come immediately to mind. So, I have what you might call a “vested interest” in U.S. refugee and asylum system.

I worked with refugees and their cases almost every workday for more than 21 years during my tenure as a trial and appellate judge with the United States Immigration Courts. And, I’ll admit that on many of my “off days” the challenges, stories, human drama, triumph, and trauma of refugees and refugee law bounced around in my head, much to the dismay of my wonderful wife, Cathy.

Although I have the greatest respect and admiration for the inspiring life stories of refugees and their contributions to the United States, I have never, for even one second, wanted to be a refugee. Like all of the speakers tonight, I see refugees as a huge asset to our country. It says something about us as a nation that so many great people from all over the world want to make this their home and to contribute their talents, some of which were on display here tonight, to the greatness of America. So, to all of you out there who came as refugees or asylees, thank you for coming, for your service, and for your dedication to making our great country even greater.

The other topic I want to address briefly, that is near and dear to me personally, is the overriding importance of due process in our refugee and asylum system. Each of you who came as a refugee or asylee is here because an adjudicator at some level of our system carefully and fairly gave you a chance to state your claim, listened to and reviewed the support you provided for your claim, and made a favorable decision in your case.

For some of you, that decision was made by a DHS Refugee Officer or an Asylum Officer. Others of you had to rely on different levels of our system – a U.S. Immigration Judge, the Board of Immigration Appeals, or in some cases, a U.S. Court of Appeals to have your status granted. In all of these instances you received something very precious under our Constitution: due process of law.

Unfortunately, there currently is a “due process crisis” in our overloaded Immigration Court System. With over one-half million pending cases and waiting times of many years in some courts for final hearings to be held, our Immigration Court System is under intense pressure.

Sometimes, that results in approaches that generally have a favorable impact for individuals seeking protection. For example, grants of Temporary Protected Status and work authorization take many cases off the Immigration Court docket and legislation such as NACARA for Central Americans or HIRIFA for Haitians permanently resolves many cases favorably at the DHS without requiring a full-blown asylum hearing before an U.S. Immigration Judge.

But, when backlogs build up and enforcement pressures mount on our Government, less benign approaches and suggestions sometimes come to the fore. Adjudicators can be pressured to do counterproductive things like decide more cases in less time, limit evidence to shorten hearings, and make “blanket denials” based on supposed improvements in country conditions.

Other times, placing more individuals in civil immigration detention is looked at as a way of both expediting case processing and actively discouraging individuals from coming to the United States and making claims for refuge under our laws in the first place. Or, moving cases though the system so quickly that applicants can’t find pro bono lawyers to represent them is sometimes incorrectly viewed as an acceptable method for shortening adjudication times, thereby reducing backlogs.

Another method far too often used for discouraging asylum claims and inhibiting due process is placing asylum applicants in DHS Detention Centers, often privately operated, with “imbedded” Immigration Courts in obscure out of the way locations like Dilley, Texas and Lumpkin, Georgia where access to pro bono attorneys, family members, and other sources of support is severely limited or nonexistent.

When these things happen, due process suffers. So, while I’m always hoping for the best, it is critical for all of us in this room to zealously protect the due process rights of all migrants and insist on full due process being maintained, and, ideally, even enhanced. This includes both supporting individuals in the system by helping them obtain effective legal representation and, where appropriate, vigorously asserting the due process rights of refugees, asylum seekers, and other migrants in the Article III Federal Courts.

Only by insisting on due process for those already in the system will we be able to insure a fair and effective system for future refugees. And, welcoming and fairly treating future refugees is a key to making and keeping America great.

So, that’s my message: due process can’t be taken for granted! It must be nurtured, protected, expanded, and vigorously and proudly asserted! Thanks for listening, good luck, do great things, and due process forever!

(Rev. 01/18/17)

Why The U.S. Immigration Court In NYC Is Overwhelmed: Listen & Read WNYC/NPR Senior Reporter Beth Fertig’s Report (Quoting Me) Here! Without Reforms, Due Process Is In Peril! Why Not “Give Due Process A Chance?”

http://www.wnyc.org/story/why-new-yorks-immigration-courts-are-so-busy/

“This is why experts say it’s hard to imagine Donald Trump deporting more criminal immigrants than Obama. “I think this administration already takes a fairly broad view of who is a criminal,” said Paul Wickham Schmidt, who was an immigration judge in Arlington, Virginia for 13 years.

Trump has claimed there are two to three million undocumented immigrants with criminal convictions. The government has said that number is actually just below 2 million and includes non-citizens who are in the country legally (like Bilanicz), as well as undocumented immigrants.

The government has put more resources into immigration enforcement. But Schmidt said it hasn’t done enough to help the court system meet the growing demand. There were fewer than 300 immigration judges for the whole country last year, and they were hearing more than 220,000 cases. Schmidt said even 100 additional judges would barely keep up with incoming cases, let alone the backlog.

“If you start doing the half million cases that are pending then you’re going to fall behind on the incoming cases,” he said.

. . . .

Judges have also complained that the government fast-tracked unaccompanied minors and families from Central America and Mexico who crossed the border in a “surge” a couple of years ago. These recent arrivals got priority over immigrants who had been waiting years for their hearings or trials, leading to bigger backlogs.

. . . .

The whole [Master Calendar] process took about five minutes for each case, and [Judge Amiena] Khan was scheduling future court appearances as late as August of 2018. This isn’t so bad given, that Schmidt said he was scheduling hearings for 2021 before retiring last summer. But one lawyer in court that morning, Shihao Bao, agreed the system couldn’t possibly handle more cases unless Trump wanted to “take away due process.”

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

To paraphrase Chief Justice John Robert’s spot-on observation in the immigration case Nken v. Holder, 556 U.S. 418, 421 (2009), providing due process in an individual case takes time: “[S]ometimes a little; sometimes a lot.” As I have said numerous times on this blog, the “just peddle faster approach” to due process in the U.S. Immigration Courts, unsuccessfully tried by past Administrations, isn’t going to “cut it” for due process.

And, cutting corners is sure to be more expensive to the taxpayers in the long run when Article III U.S. Courts of Appeals inevitably intervene and use their independent authority to stop the “assembly line” approach to justice and force the return of numerous cases to the Immigration Courts for “redos,” sometimes before different Immigration Judges.

I’m relatively certain that some of the Ashcroft-era cases “bounced back” by the Courts of Appeals are still kicking around the Immigration Courts somewhere without any final resolutions. With the help of the local immigration bar and the ICE Office of Chief Counsel I finished up a fair number of these “oldies” myself during my time at the Arlington Immigration Court. By the time the cases finally got to my Individual Hearing calendar, most of the individuals involved had qualified for relief from removal or, alternatively, had established lengthy records of good behavior, tax payment, contributions to the community, and U.S. family ties that made them “low priorities” for enforcement and resulted in an offer of “prosecutorial discretion” from the Assistant Chief Counsel.

In the Arlington Immigration Court, the Office of Chief Counsel had a strong sense of justice and practicality and was a huge force in helping to get “low priority” cases off the docket whenever possible consistent with the needs and policies of their DHS client. But, I know that the Offices of Chief Counsel in other areas did not perform at the same consistently high level.

Rather than having enforcement efforts stymied and having to redo cases time and time again to get them right, why not invest in providing really great fairness and due process at the “retail level” of our justice system: the United States Immigration Courts? Getting it right in the Immigration Courts would not only save time and money in the long run by reducing appeals, petitions for review, and actions for injunctions directed to higher courts, but would also produce a due process oriented Immigration Court system we could all be proud of, that would have great credibility, and that would serve as an inspiring example of “best practices” to other courts and even to immigration systems in other countries. After all, the “vision” of the U.S. Immigration Courts is supposed to be: “Through teamwork and innovation be the world’s best tribunals guaranteeing fairness and due process for all.” Why not “give due process a chance?”

PWS

01/17/17

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