"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
“When Jennye Pagoada Lopez arrived at the U.S. border post of San Ysidro in July seeking political asylum, she showed agents ultrasound images of her pregnancy and told them she was bleeding and needed immediate medical attention.
But instead of taking her to the hospital, they detained her for more than a day before transferring her to the Otay Mesa Detention Center in San Diego.
It took two days to get a medical exam. Four days after that, she was informed that she had a miscarriage.
That was the account she gave in a sworn declaration to her lawyers.
“I was neglected, subjected to abusive conditions and denied medical treatment when requested,” she testified.
Pagoada is among ten women whose testimony was included in a complaint filed this week against the U.S. Department of Homeland Security by seven rights groups accusing immigration officials of improperly detaining pregnant women and failing to provide them with adequate medical care.
The complaint — made to the department’s inspector general and civil rights officer — alleges that the women suffered physical and psychological harm and asks the department to investigate the cases and report on what steps immigration authorities will take to enforce its policies on the detention and treatment of pregnant women.
“We are gravely concerned with the agency’s failure to abide by its own policy against detaining pregnant women, the detention conditions that have been reported by pregnant women in various detention facilities across the country, and the lack of quality medical care provided to women who are pregnant or have suffered miscarriages while in custody,” the complaint said.”
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Read the rest of Melissa’s report at the link.
The American Gulag intends to demean, dehumanize, demoralize, and discourage migrants like Jenny Pagoda Lopez.
But, the reality is that Lopez and others like her come out as human, brave, and courageous.
The truth is that all Americans are demeaned and dehumanized by unnecessary immigraton detention. It is a stain on our humanity, our professed values, and our national conscience that will not easily be washed away.
“JUST SAY NO” to politicos who support, actively or passively, this un-American regime!
“The strongest objection to Moore’s hardness and harshness is theological. On the consistent evidence of Jesus’ ministry, what public attitude did he condemn the most? He stood against people who talked constantly of the law, who thought they were especially virtuous, who enjoyed scolding people, who judged others without tenderness and understanding. He was at constant war with the self-righteous and took the side of the social outcasts they condemned.
Now we see the return of the Pharisee.”
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Read the rest of Gerson’s “spot on” op ed at the link.
The Wrong Way to Fight Gangs
By LAUREN MARKHAMSEPT. 28, 2017
Lester, who is among the recent Central American students at Oakland International High School who crossed into the US, during soccer practice for the Soccer Without Borders program. Credit Monica Almeida/The New York Times
Oakland, Calif. — Young migrants from Honduras, Guatemala and El Salvador come to this country fleeing violence and lives that are often dictated by savage gangs. It’s expensive to get here. They often arrive with thousands of dollars of high-interest debt and little or no English skills. And they face an administration that insists that they are gangsters bringing bloodshed and gang warfare to American cities.
In fact, these young people are often fleeing gangs. And the challenges they face in the United States make them particularly vulnerable for recruitment into the same violent gangs they left home to escape.
“They have transformed peaceful parks and beautiful quiet neighborhoods into bloodstained killing fields,” President Trump said of the members of MS-13, a transnational gang composed largely of Central American youth; its activity has been growing in recent years, both in the United States and in Central America. A few weeks ago, Attorney General Jeff Sessions told law enforcement officers that these young, undocumented immigrants were “wolves in sheep’s clothing.”
I work at Oakland International High School in Oakland, Calif. It is a public school with a population made up entirely of recently arrived immigrant students. Today, over 25 percent are unaccompanied minors — young people who crossed into the United States without papers or parents — who have been released from immigration custody and placed in deportation proceedings to await their day in court. Since we opened 10 years ago, our students’ gang involvement has markedly decreased. This is because we have gotten better at what we were meant to do, namely: provide programs that teach skills, offer support services that reduce barriers to coming to school, and foster a sense of community.
We offer what the gangs offer, but better.
I had one student who came to the United States as an unaccompanied minor from Honduras. His mother left him when he was little, and he never knew his father. He lived with his grandmother until she died. He was just 13. For two years he lived alone in her house, selling water bottles on the street on behalf of a neighboring family. Sometimes they invited him over for dinner; other times they didn’t.
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He told me that he saw this life in Honduras as a dead end. He crossed into Guatemala, rode on top of trains through Mexico, hiding what little money he had pressed against the inside of his cheek, and swam across the Rio Grande. He was apprehended at the border, placed into a youth detention center, and sent to live with his aunt in Oakland, pending his deportation hearing. He enrolled at Oakland International but, after a couple of weeks, his attendance waned. Soon he stopped coming altogether.
“I didn’t know anything,” he told me. Being in school felt impossible to him because he felt unable to succeed at it. He had an upcoming court case and no lawyer; that, he knew, would cost money he didn’t have.
One Saturday, I took the train into San Francisco to meet a friend. As I waited at the Bay Area Rapid Transit station outside the Civic Center, I watched as, in broad daylight, Latino teenagers sold drugs to the area’s vagrants. I knew this drug ring was connected to MS-13. There, on the other side of the plaza, was my student.
“These are animals,” President Trump said of MS-13 members. Most often, rather, they are like my student: young people, not unlike child soldiers, who enter a violent life by either force or force of circumstance. They do not come to the United States to participate in gang life; it winds up as the only option.
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Our school kept trying with this particular student. We conducted home visits in East Oakland, where he lived with his aunt, found him a therapist he could see at school, and encouraged him to join our school soccer team. He got a free lawyer. He quit selling at the Civic Center. He came back to school.
Newly arrived immigrants are a fast-growing demographic in American schools, and they will continue to be, regardless of the fate of the Deferred Action for Childhood Arrivals program. Yet the Trump administration is pushing for cuts that will affect their ability to succeed in school, or even attend school at all.
The proposed 2018 education budget includes approximately $9 billion in cuts — 13.5 percent of the total. The cuts include an evisceration of the 21st Century Community Learning Centers, a $1 billion earmark which provides funding for enrichment opportunities for students in high-poverty schools.
Nearly all of the support our school was able to offer my student, and so many like him, was a result of 21st Century funding. It pays for Soccer Without Borders, which serves more than half of our student population, and for an organization called Refugee Transitions, which offers tutoring and homework help. It pays for mental health interns to provide therapy to youth in six languages.
Quality public education is a fundamental, if aspirational, American value. But altruism aside, investing in newcomer education makes practical sense. It costs far more to lock someone up for a year than it does to educate him.
“We’re going to destroy the vile, criminal cartel MS-13,” President Trump announced to a group of law enforcement officers on Long Island, N.Y., in July. To focus on police intervention rather than education isn’t only shortsighted, it’s also been proven not to work. All we have to do is look at El Salvador, where a series of failed iron fist campaigns that combined police crackdowns with a lack of social alternatives served to increase violence.
We could also look at history. MS- 13 was born in the United States among disenfranchised, traumatized immigrant youth in the 1980s and, through deportation, was exported to El Salvador (then spread to Honduras and Guatemala) — where it now relies on vulnerable young recruits, teenage and even younger, to grow its ranks.
Central America’s endemic violence is not going away anytime soon, so, like it or not, these young people will keep coming, regardless of the walls we build or the immigration policies we enact. Excluded and disenfranchised young people seek inclusion elsewhere: on the margins, in the shadows, in society’s dark underbelly. Gangs provide that sense of belonging, along with a feeling of success and upward mobility, for those who are not offered the same in mainstream society.
Last Tuesday afternoon, on a warm fall day in Oakland, more than 60 young men from more than a dozen countries played soccer together out on our misshapen soccer pitch. An additional 50 or so students sat in the cafeteria, working with teachers and volunteers to practice their English and finish their homework. A group of parents met in a classroom to help plan the year’s activities. It was just a typical day at the school — a day full of activities that depend on money that could disappear. If 21st Century funds go away, these programs vanish. Which means the students will find somewhere else to take them in.
MS-13, as it happens, welcomes young people with open arms.”
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Pretty much what I’ve been saying all along. There ways of getting the job done. We really need to use them!
“Americans Back DACA by a Huge Margin. A vast 86 percent of Americans support a right to residency for undocumented immigrants who arrived in the United States as children, with support crossing the political spectrum. Two-thirds back a deal to enact such legislation in tandem with higher funding for border control. Possibly in light of Donald Trump’s decision to phase out the Deferred Action for Childhood Arrivals program, disapproval of his handling of immigration overall reaches 62 percent in this ABC News/Washington Post poll. Just 35 percent approve. Additional hurdles for Trump are his demand for a wall on the U.S. border with Mexico – again 62 percent oppose it – and substantial concerns about his immigration enforcement policies. Americans were asked whether they support “a program that allows undocumented immigrants to stay in the United States if they arrived here as a child, completed high school or military service and have not been convicted of a serious crime,” all elements of DACA, established by Barack Obama by executive order in 2012. Support spans demographic groups, including three-quarters of Republicans and conservatives, 86 and 87 percent of independents and moderates and 97 and 96 percent of Democrats and liberals.”
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Read the complete summary of the ABC News/Washington Post Poll at the link.
While all polls, particularly those on immigration, must be looked at with some circumspection, these are great numbers to keep in mind when faced with the constant bogus claims from Trump Administration and GOP Congressional restrictionists that they are somehow representing the “national will” or “the people’s voice” with their out of touch policies and proposals.
Interestingly, one enforcement initiative that got widespread support was enforcing existing employer sanctions laws, something that neither GOP nor Democratic Administrations has been willing to do over the past three decades since they were in acted in 1986.
Nor does their Trump Administration appear to be putting any emphasis on this program. And, it’s easy to see why. Employer sanctions would involve going after U.S. businesses, some of the same folks who helped put Trump and the GOP in power. Some of them like the current system, which keeps many needed workers marginalized and dependent, so they can be exploited.
Perhaps more important, going after U.S.employers doesn’t do anything for the Trump/GOP racist base. Much better to sack up some decent productive Hispanic workers and count it as “law enforcement.” That’s what the racist xenophobes like to see.
Transactional Records Access Clearinghouse
==========================================
FOR IMMEDIATE RELEASE
Greetings. Despite a dramatic drop-off in new Immigration Court cases involving unaccompanied children (UAC) this year, the backlog of pending children’s cases has continued to rise. The latest case-by-case court data show that the court backlog of these children’s cases reached an all-time high of 88,069 at the end of August 2017. The current backlog of 88,069 represents four times the number of new UAC cases that reached the court during the first eleven months of FY 2017.
Litigation on some UAC cases necessitate complex applications for relief that may involve other government agencies and can stretch on for several years. There are still 16,693 cases pending that began during FY 2014. However the largest number of UAC cases still pending were initiated during the last two years.
Previous research has shown that individuals who have an attorney have much higher odds of success in Immigration Court. Despite many initiatives to increase the availability of representation in children’s cases, still nearly three out of ten children whose cases began during FY 2015 were unrepresented. (A total of 61 percent of these cases have already been decided.) Although with additional time some children may be able to locate attorneys, the current figure rises to four out of every ten children who remain unrepresented for cases that began during FY 2016, and jumps to three out of four for cases that originated during FY 2017.
For the full report, go to:
http://trac.syr.edu/immigration/reports/482/
For additional details see the accompanying free web-based tool which provides access to the data TRAC has compiled on these cases:
In addition, many of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through August 2017. For an index to the full list of TRAC’s immigration tools go to:
http://trac.syr.edu/imm/tools/
If you want to be sure to receive notifications whenever updated data become available, sign up at:
or follow us on Twitter @tracreports or like us on Facebook:
http://facebook.com/tracreports
TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:
http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl
David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563
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I go back top my blog from yesterday noting former Obama OIL Honcho Leon Fresco’s court argument that counsel was not necessary for due process in cases involving children in Immigraton Court. Simply not true!
Whatever happens with unrepresented children in Immigration Court, it isn’t due process, except in rare cases. We should all be ashamed that two consecutive Administrations have failed “to do the right thing” with children’s due process rights. It’s not about cost, convenience, magnets, or any other such BS. It’s about due process, fairness, justice, and ultimately our Constitutional system and human decency.
“Detention as a tool of immigration enforcement has increased dramatically following immigration reforms enacted in 1996. Two Supreme Court cases at the dawn of the new millennium offered contrasting approaches to the review of decisions of the U.S. government to detain immigrants. In 2001, in Zadvydas v. Davis, the Supreme Court interpreted an immigration statute to require judicial review of a detention decision because “to permit[] indefinite detention of an alien would cause a serious constitutional problem.” Just two years later, the court in Demore v. Kim invoked the “plenary power” doctrine – something exceptional to immigration law and inconsistent with modern constitutional law – to immunize from review a provision of the immigration statute requiring detention of immigrants awaiting removal based on a crime.
How the Supreme Court reconciles these dueling decisions will no doubt determine the outcome in Jennings v. Rodriguez. This case involves the question whether immigrants, like virtually any U.S. citizen placed in criminal or civil detention, must be guaranteed a bond hearing and possible release from custody. Relying on Zadvydas v. Davis, the U.S. Court of Appeals for the 9th Circuit affirmed a district court injunction that avoided “a serious constitutional problem” by requiring bond hearings every six months for immigrant detainees. The court of appeals further mandated that, in order to continue to detain an immigrant, the government must prove that the noncitizen poses a flight risk or a danger to public safety.”
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Read the rest of Dean Johnson’s analysis at the link.
This is huge in human rights. A “W” for the Administration, which many observers view as likely with the advent of Justice Gorsuch, will essentially “Green Light” the Trump-Sessions-Miller plan to construct the “New American Gulag.” The Gulag’s “prisoners” will be noncriminal migrants (many of them women fleeing violence in the Northern Triangle) whose only “crime” is to assert their rights for due process and justice under our laws.
The concept that migrants have rights is something that sticks in the craws of the White Nationalists. So, punishing them for asserting their rights (with an objective of coercing them into giving up their rights and leaving “voluntarily”) is the next best thing to denying them entirely (which the Administration routinely does whenever it thinks it can get away with it — and the Article IIIs have largely, but not entirely, been asleep at the switch here).
And, make no mistake about it, as study after study has shown, the “conditions of civil detention” in the Gulag are substandard. So much so that in the last Administration DHS’s own study committee actually recommended an end to private immigration detention contracts and a phasing out of so-called “family detention.” The response of the Trump White Nationalists: ignore the facts and double down on the inhumanity.
Based on recent news reports, DHS immigration detainees die at a rate of approximately one per month. And many more suffer life changing and life threatening medical and psychiatric conditions while in detention. Just “collateral damage” in “Gonzo speak.”
Immigration detainees are often held without bond or with bonds that are so unrealistically high that they effectively amount to no bond. And, in many cases (like the one here) they are denied even minimal access to a U.S. Immigration Judge to have the reasons for detention reviewed.
Plus, as I reported recently, across the nation DHS is refusing to negotiate bonds for those eligible. They are also appealing Immigration Judge decisions to release migrants on bond pending hearings, apparently without any regard to the merits of the IJ’s decision. In other words, DHS is abusing the immigration appeals system for the purpose of harassing migrants who won’t agree to waive their rights to a due process hearing and depart!
Also, as I pointed out, in the “no real due process” world of the U.S. Immigration Courts, the DHS prosecutors can unilaterally block release of a migrant on bond pending appeal. In most cases this means that the individual remains in detention until the Immigration Judge completes the “merits hearing.” At that point the BIA determines that the DHS bond appeal is “moot” and dismisses it without ever reaching the merits. Just another bogus “production” statistic generated by EOIR!
Oh, and by the way, contrary to “Gonzo” Session’s false and misleading rhetoric on so-called “Sanctuary Cities,” one of the things jurisdictions that rationally choose to limit cooperation with DHS enforcement to those with significant criminal records are doing is protecting their law-abiding, productive migrant residents and migrant communities from the patent abuses of the “American Gulag.” “Gonzo policies” predictably drive reasonable people to take protective actions.
But, some day, the bureaucrats, complicit judges (particularly life-tenured Article III Judges, like the Supremes), reactionary legislators who turn their backs on human suffering, and misguided voters who have allowed this human rights travesty to be perpetrated on American soil will be held accountable, by the forces of history if nothing else.
“On September 4, immigration judge Denise Slavin followed orders from the Department of Justice to drop everything and travel to the U.S.-Mexico border. She would be leaving behind an overwhelming docket in Baltimore, but she was needed at “ground zero,” as Attorney General Jeff Sessions called it—the “sliver of land” where Americans take a stand against machete-wielding, poison-smuggling criminal gangs and drug cartels.
As part of a new Trump administration program to send justices on short-term missions to the border to speed up deportations and, Sessions pledged, reduce “significant backlogs in our immigration courts,” Slavin was to spend two weeks at New Mexico’s Otero County Processing Center.
But when Slavin arrived at Otero, she found her caseload was nearly half empty. The problem was so widespread that, according to internal Justice Department memos, nearly half the 13 courts charged with implementing Sessions’ directive could not keep their visiting judges busy in the first two months of the new program.
“Judges were reading the newspaper,” says Slavin, the executive vice president of the National Immigration Judges Association and an immigration judge since 1995. One, she told POLITICO Magazine, “spent a day helping them stock the supply room because she had nothing else to do.”
Slavin ended up leaving Otero early because she had no cases her last day. “One clerk said it was so great, it was like being on vacation,” she recalls.
In January, President Donald Trump signed an executive order directing the DOJ to deploy U.S. immigration judges to U.S. detention facilities—most of which are located on or near the U.S.-Mexico border. The temporary reassignments were intended to lead to more and faster deportations, as well astake some pressure off thecurrently overloaded immigration court system. But, according to interviews and internal DOJ memos, since the new policy went into effect in March, it seems to have had the opposite result: Judges have frequently had to cancel cases on their overloaded home dockets only to find barely any work at their assigned courts—exacerbating the U.S. immigration court backlog that now exceeds 600,000 cases.
According to internal memos sent by the DOJ’s Executive Office of Immigration Review (EOIR) and obtained by the National Immigrant Justice Center (NIJC) via a Freedom of Information Act request, judges delayed more than 20,000 home court hearings for their details to the border from March to May.
“I canceled about 100 cases in my home court to hear 20,” says Slavin, who was forced to postpone those Baltimore hearings by a year since her court schedule was already booked through most of 2018. In Otero, she had no more than 50 hours of work over the course of two weeks (she typically clocks 50 hours per week in Baltimore). But she couldn’t catch up on her work at home because she had no access to her files.
Her three colleagues at the facility who had also been ordered there by the DOJwere no busier. One who had been sent to Otero previously told her the empty caseloads were normal.
“Sending judges to the border has made the backlog in the interior of the country grow,” says Slavin, “It’s done exactly the opposite of what they hoped to accomplish.”
***
On April 11 in Nogales, Arizona, Sessions formally rolled out the DOJ’s judge relocation program. “I am also pleased to announce a series of reforms regarding immigration judges to reduce the significant backlogs in our immigration courts,” he told the crowd of Customs and Border Protection personnel gathered to hear him. “Pursuant to the president’s executive order, we will now be detaining all adults who are apprehended at the border. To support this mission, we have already surged 25 immigration judges to detention centers along the border.”
The idea was to send U.S. immigration court judges currently handling “non-detained” immigration cases—cases such as final asylum decisions and immigrants’ applications for legal status—to centers where they would only adjudicate cases of those detained crossing the U.S.-Mexico border, along with others who had been picked up by ICE for possible deportation. More judges would follow, the attorney general said.
But as Sessions spoke, nearly half of those 25 “surge” judges—whose deployments typically last two weeks or a month—were largely unoccupied. One week before the attorney general’s Nogales announcement, EOIR—the Justice Department office that handles immigration cases—published an internal memo identifying six of 13 detention centersas offering inadequate work for their visiting justices.
“There are not enough cases to fill one immigration judge’s docket, let alone five,” the DOJ wrote of Texas’ T. Don Hutto facility, which had been assigned five Miami judges to hold hearings via video teleconference with the women detained there.
One judge sent to the South Texas Residential Center, a family detention facility, had no cases at all; a judge at another family facility, Karnes Residential Center, had a “light” docket; and Texas’ Prairieland Detention Center, which had received a judge, also was “not receiving enough cases to fill a docket or even come close to it,” the memo stated.
The two judges assigned to New Mexico’s Cibola Detention Facility also had barely any work to do, and Louisiana’s La Salle Detention Center—not on the border but treated as such in its receipt of five “surge” judges—had similarly been overstaffed. “There is not enough work for five judges,” said one DOJ memo. “There is enough work for a reasonable docket and three judges.”
The Justice Department documents also revealed a number of logistical issues with the border courts, including a lack of phone lines or internet connectivity, and noise infiltrating the courtroom from the detention facility. “The courtrooms at Imperial Regional Detention Facility are not suitable for in-person hearings because security is wholly inadequate,” said one memo of the California facility. “The court cannot do telephonic interpreters and the request for in-person interpreters remains pending. … Last week an immigration judge was left in the courtroom without a bailiff.”
Meanwhile, the judges sent to the border were forced to abandon thousands of home court cases—which the DOJ was aware could increase pressure on the U.S. immigration court system, where a specialized cadre of judges handles questions over whether people can remain in the country or face deportation. “It is likely that the backlog will increase for the locations from which a judge is assigned,” predicted one March 29 document, which also projected the deployments would cost $21 million per fiscal year.
Within the first three months of the program, judges postponed about 22,000 cases around the country, including 2,774 in New York City alone, according to the DOJ memos. (The delays added to an already clogged system: New York City’s immigration court backlog stood at 81,842 as of July, according to the immigration data tracker TRAC Immigration.)
When asked about these FOIA documents, and why the DOJ had deployed judges where they were not needed, a Justice Department spokesmanresponded that the program had improved in recent months. “After the initial deployment, an assessment was done to determine appropriate locations to increase the adjudication of immigration court cases without compromising due process,” he said.
Immigration judges and advocates acknowledge that the program has slightly improved since May—but many say that’s largely because the DOJ is sending fewer judges on temporary missions. “Some of the least productive assignments have either been discontinued or converted to video teleconferencing hearings, and it seems that fewer judges are being sent overall,” says National Association of Immigration Judges President Dana Marks, who serves as an immigration judge in San Francisco. But, she says, “the basic problem still persists.”
More than 100 total judges have been reassigned since March, but Politico was not able to obtain data on whether deployments are declining or increasing, or how many judges are still facing empty caseloads.
The spokesperson declined to comment on Slavin’s experience at Otero. But the DOJ discontinued deployments to Otero this month, as soon as Slavin completed her assignment there.
The U.S. immigration court backlog has increased under Trump, moving from 540,000 in January to 600,000 in July. But the DOJ spokesperson denied thatthe deployments were responsible for the bump, instead blaming the overloaded system on the Obama administration’s policies. He noted that the first six months of the Trump administration had seen a14.5 percent increase in final immigration court rulings from the previous year,and that more than 90 percent of cases by “surge” judges had led to deportation orders.
But just because judges have ruled on more cases doesn’t mean the Trump administration hasn’t worsened the backlog, NIJC communications director Tara Tidwell Cullen says. In fact, it could likely mean the opposite. Trump’s first six months in power saw 40 percent more immigration arrests in the country’s interior than the year before, adding more cases to already overloaded dockets.
“The ‘home’ courts where judges are sent from continue to be understaffed and their caseloads are adversely impacted as judges are sent to temporary assignments,” adds Marks, the San Francisco judge. Adding to the problem, she points out, istheadministration’s decision to detain immigrants without allowing the Department of Homeland Security to grant them bonds. Now, detainees have to go to immigration court to get a bond, creating extra work for those justices.
***
Not everyone thinks sending judges to the border is a bad idea.
“The best use of resources is to throw them all at detention,” says Leon Fresco, who served as deputy assistant attorney general under President Barack Obama. Judges typically release individuals detained for more than 90 days with no trial on habeas corpus, he explains, in which case the government has “wasted money in detaining them” to start. Better, then, to hear all the detained cases quickly.
Any administration will have to make tough calls, says Fresco. “You have just about 300 judges to hear more than 500,000 cases, so you have to prioritize.” Under Obama, the DOJ—while it hadn’t sent judges to the border—had also prioritized recent border crossers in order to send a message that the U.S. would immediately hear their cases, rather than allow them to “wait eight years to be adjudicated” while staying in the country, Fresco says. Trump’s priorities similarly send a message to potential border crossers that “we do have quick justice.”
The problem, Fresco adds, is that the Trump administration has been clumsy in its border deployments—sending judges to places where they aren’t needed. “There are ways to do this, but they need to be more flexible and nimble, and they’re not being as nimble as they can be,” he says. “EOIR is an agency badly in need of some sort of consulting firm. … There’s still too little rhyme or reason about how case assignments work—you shouldn’t have weeks with judges with hours of idle time.”
Chicago immigration judge Robert D. Vinikoor says his deployment went smoothly. He had a full caseload in his two-week detail at Otay Mesa Detention Center in San Diego this April, and he maintains that the reassigned judges were necessary to get immigrants out of detention as expeditiously as possible. “DHS is detaining more and more people and keeping them in custody, so that’s the need for the judges,” says Vinikoor, who retired in June after serving 33 years as an immigration judge. “The question is: Are they over-detailing? In some cases they put the cart before the horse.”
But Marks, who has been an immigration judge for 30 years, disagrees. Even if the DOJ gets deployments right, she says, the surge policy shows the administration has the wrong priorities. She says the administration’s biggest mistake was making a “politically motivated decision” and not consulting immigration judges. “The judges weren’t asked and that’s always been our big frustration,” she says.” The judges are the ones who are the experts in handling their cases.”
Marks notes that her union had similar frustrations with the Obama administration’s prioritization of recent border crossers—predominantly Central American women and children seeking asylum—to send a message they would be deported quickly if they could not prove they qualified for asylum. That decision, she says, worsened the backlog, too.
The overloaded system jeopardizes due process for immigrants, says NIJC’s policy director Heidi Altman, who filed the FOIA for EOIR’s memos after hearing about “chaos” in the courts when the border details began.
“When the backlog is exacerbated it makes it exponentially harder for us and other legal services to take on clients,” says Altman, whose NIJC organizes pro-bono attorneys handling immigration cases, which do not guarantee legal representation. Without a lawyer handling a case, she says, it is less likely to proceed fairly.
But there’s another reason that Trump might want to reconsider the border surge, says John Sandweg, former acting director of ICE under the Obama administration: It takes the pressure off the undocumented immigrants who have lived in the country for years and may be fighting to prevent an order of deportation.“They’re basically giving amnesty ironically to the non-detained docket.”
“By shifting the judges away they’ll never have their hearing so they’ll never be ordered deported,” he says. “You’re letting them stay.”
Alimbaev v. Attorney General, 3rd Cir., 09-25-17, published
Before: JORDAN and KRAUSE, Circuit Judges,
and STEARNS, District Judge.*
* The Honorable Richard G. Stearns, United States District Judge for the District of Massachusetts, sitting by designation.
OPINION BY: Judge Krause
KEY QUOTE:
“This disconcerting case, before our Court for the second time, has a lengthy procedural history marked by conflict between the Board of Immigrations Appeals (BIA) and the Immigration Judge (IJ) and fueled by troubling allegations that Petitioner, an Uzbek national, relished watching violent terroristic videos, while apparently harboring anti-American sympathies. The issue on appeal, however, is whether the BIA correctly applied the clear error standard of review, as required, when reviewing the IJ’s factfinding in this case—an inquiry that highlights the role of faithful adherence to applicable standards of review in preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity are not usurped by emotion, regardless of the nature of the allegations. Because we conclude that the BIA misapplied the clear error standard when reversing the IJ’s finding that Petitioner’s testimony was credible, we will grant the petition for review of the BIA’s removal order, vacate the denial of Petitioner’s applications for adjustment of status, withholding of removal, and protection under the Convention Against Torture (CAT), and remand once more to the BIA.”
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Read the entire, rather lengthy, decision at the above link.
While the Third Circuit Judges were obviously unhappy with the performance of the BIA Panel here, I’ll bet decisions like this don’t hurt the Appellate Immigration Judges involved wth their boss, Jeff Sessions. Running over the regulations, Due Process, fairness, impartiality, and objectivity in the name of getting perceived “bad guys” out of the country is probably what “Old Gonzo” expects and even demands from his wholly owned judiciary.
There is a massive gap in expectations here. The Third Circuit speaks of “faithful adherence to applicable standards of review in preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity.” But a U.S. Immigration Court System (including the BIA) headed by the “Immigration Enforcer in Chief,” could not possibly achieve “impartiality, fairness, and objectivity” either in appearance or in practice.
Sessions exudes anti-immigrant enforcement zeal, xenophobia, White Nationalism, and disregard for the rule of law as it is commonly understood on a daily basis. He also regularly misinterprets statistics to paint a false picture of an “alien crime wave” and positively gloried in the chance to publicly disrespect and threaten to remove Dreamers.
How could these very clear messages that Sessions despises both legal and undocumented immigrants of all types, considers them bad for America, and would like them gone and restricted in the future, possibly not get down to to the mere civil servants who work for him? Do you think that Sessions is really going to defend an Immigration Court and/or a BIA that publicly and regularly stands up for the Due Process rights of foreign nationals and their rights to favorable consideration under many provisions of the immigration law? That doesn’t fit with his “restrictionist myth” that all undocumented immigrants are “law breakers” who deserve to be “punished” by removal from the United States.
Look how Trump heaps disrespect on Article III Judges who don’t go along with his illegal programs. How do you think he’s going to react if one of Jeff Sessions’s wholly owned judges stands up to one of the Administration’s gonzo legal positions or illegal policies? And, neither Immigration Judges nor Appellate Immigration Judges have the protections of life tenure. Do you seriously think that Jeff Sessions is really going to stand up for the right of one of his judges to “Just Say No” to Trump. In any event, Sessions has the the totally inappropriate and legally questionable authority to reverse any Immigration Court decision he doesn’t like anyway. That robs the whole system of any semblance of fairness, impartiality, and objectivity.
So, the Third Circuit Judges are tiptoeing around the real problem here. You can’t possibly have “impartiality, fairness, and objectivity” from an Immigration Court run by Jeff Sessions, a man who throughout his long career has demonstrated none of those characteristics.At some point, the Third Circuit Judges and their Article III colleagues elsewhere are going to have to face up to the glaring constitutional due process problems with the current U.S. Immigration Court structure. The question is when?
“An emerging list of conservative demands is threatening to derail the fledgling bipartisan effort to preserve the Obama administration program protecting from deportation 690,000 illegal immigrants brought to the United States as children.
President Trump discussed the outlines of a potential deal to protect those covered by the Deferred Action for Childhood Arrivals program with Democratic congressional leaders at a White House dinner this month. The tentative deal would couple permanent protections for those immigrants with improved border security.
But key conservative Republicans in the House and Senate are coalescing around a broader suite of policies as a condition of backing a deal, and that has Democrats and moderate Republicans warning that the current, fragile consensus could quickly break apart.
In the Senate, James Lankford (R-Okla.) and Thom Tillis (R-N.C.) introduced a conservative alternative this week to the Dream Act, a bipartisan bill that has some moderate Republican support and that Democrats want to pass as part of any deal with Trump.
[Trump, top Democrats agree to work on deal to save ‘dreamers’ from deportation]
The Lankford-Tillis bill, known as the Succeed Act, sets out a more onerous path to legal status for the immigrants in question, and it includes provisions barring them from taking advantage of existing laws that allow legal immigrants to petition authorities to allow foreign relatives to come to the United States.
Critics say those laws foster “chain migration,” inflating the amount of legal immigration. Eliminating the possibility of petitioning on behalf of relatives abroad is among another set of policies that House conservatives are pursuing on a separate track.
Key White House officials, including senior adviser Stephen Miller, have worked with members of the hard-right House Freedom Caucus and other Republican lawmakers to hone a list of policy demands that go beyond the border security provisions on which Democrats have signaled they are willing to negotiate.
It is unclear to what extent Trump himself will support these provisions as part of the effort to negotiate a solution for “dreamers,” as the childhood arrivals are known. But the proposals are gaining adherents among some of the president’s strongest backers in Congress.
[Trump administration announces end of immigration protection program for ‘dreamers’]
Rep. Mark Meadows (R-N.C.), the Freedom Caucus chairman, said in an interview this week that a working list of policies that conservatives may demand includes ending the “chain migration” laws; mandating that employers use E-Verify, an online federal system to determine people’s eligibility to work in the United States; stepping up enforcement against those overstaying legitimate visas; and limiting protections for those who seek asylum at U.S. borders.”
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Read the rest of the article at the link.
These toxic dudes never miss a chance to push their White Nationalist anti-American agenda. Frankly, we don’t need to plow more resources into already perfectly adequate border security, and there is certainly no need for more immigration agents who have so little to do now that they can squander time busting law-abiding American residents, guarding their agency bosses, staking out hospitals and courthouses, and screwing up already out of control Immigration Court dockets. Where’s the accountability for efficient and rational use of resources? But, those could be trade-offs that the Dems could make to save the Dreamers. (Honestly, given some of the other garbage the GOP has put out there, funding “The Wall” seems like the least harmful of the trade-offs in human terms. Money gets wasted, America looks foolish, but nobody gets hurt and it won’t tank our economy like the restrictionist agenda on legal immigration would).
But, the hard core xenophobic White Nationalist agenda being pushed by Miller, the “Freedom” Caucus, and other restrictionists out to limit legal immigration, deny due process, and make a mockery out of our legal and moral obligations to refugees — No Way! The Dems would have to “Just Say No.”
The “Ace in the Hole” for the Dems: There is neither the ability nor the moral willingness on the part of the majority of decent Americans to deport 800,000 American young people. They might end up “hanging in limbo” till some future date when responsible government once again gains the upper hand over the “wrecking crew.”
“AUSTIN, Texas (Reuters) – A U.S. appeals court on Monday issued a mixed decision on a Texas law to punish “sanctuary cities” by allowing a few parts of the law to take effect but blocking major parts of it.
The U.S. Court of Appeals for the Fifth Circuit allowed the part of the Texas law that called on localities to abide by detainer requests from federal authorities to hold people in local jails to allow for checks of suspected U.S. immigration law violations.
But the court left in place a lower court decision to block a part of the law that would punish local officials who criticized state policies on immigration enforcement.
The appeals court has yet to render a full decision on the law.”
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Read the full article at the link.
This appears to be an important victory for the Trump-Sessions program of requiring jurisdictions to honor DHS Detainers issued by non-judicial officers. Seems clear that the 5th Circuit ultimately will vacate the injunction on this part of Texas SB 4.
“Portland is a sanctuary city in a sanctuary state — a place where officials have scoffed at threats from the Trump administration, where court employees have shuffled illegal immigrants out through employee entrances when Immigration and Customs Enforcement personnel conducted raids, and where local law enforcement officials have argued that enforcing federal immigration policies is not their job.
Sessions’s appearance here Tuesday was brief. He spoke to a group of federal employees — ICE, FBI, Drug Enforcement Administration, and Bureau of Alcohol, Tobacco, Firearms and Explosives — for 18 minutes in the “oath room” of a Pearl District building, the place where people recite the Oath of Allegiance before they are granted U.S. citizenship. Sessions railed against sanctuary cities, places he called a “trafficker’s, a smuggler’s or gang member’s best friend.”
Attorney General Jeff Sessions speaks to federal employees in Portland, Ore., on Tuesday. (Stephanie Yao Long/The Oregonian via AP)
But outside, the protest against Sessions lasted for hours. A group of a dozen protesters leaned on a metal barricade just before 11 a.m. — hours before Sessions even touched down in Portland. And they were ready.
Juan Rogel, 26, is a leader of Milenio.org, a group that helps engage Latinos in political action and was one of several groups that organized protesters Tuesday.
“We want to send a clear message that he is not allowed to come here,” Rogel said of Sessions. “We’re pissed off.”
Rogel said it’s essential for Latinos to organize and for Sessions to see, if only for a moment, that people here aren’t welcoming of him.
“My dad used to say, ‘If you knock on the door for opportunity and they don’t open it, you have to break it down,’ ” Rogel said. “We haven’t been heard. We are young people working on a legacy for tomorrow.”
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Read the complete article at the link.
No, Gonzo, “sanctuary cities” are not a “smuggler’s best friends.” Look in the mirror: you, Gonzo, are the smugglers’ and gangsters’ “best friend” with your xenophobic policies intended to drive a wedge between the Hispanic communities across the nation and law enforcement and to heap shame and blame on law-abiding residents who are just trying to make a living helping America out.
I can guarantee that smuggling and gang violence won’t be solved by a bunch of White Nationalists sitting at the DOJ thinking about the next attack they can make on Hispanic America. There is no “silver bullet” solution to deep-seated problems. But, whatever the solution might be, it’s going to take some reflection and lots of help, trust, assistance, and sharing of information with the Hispanic community which would like to get rid of gangs as much as you would (because they are much more likely to be victims than you and your white buddies are) and whose undocumented members (usually intermingled with family or neighbors in legal status) would vastly prefer being allowed to come to the United States through legal channels rather than paying smugglers.
Almost forty years ago when I was counsel to the “Legacy INS” Enforcement, among other things, one of the few effective tools we had for breaking up smuggling rings involved fairly sophisticated undercover operations. These, in turn, almost always involved agents, local law enforcement, or informants from ethnic communities.
Why would anyone from the Hispanic community want to risk his or her life to help someone like Gonzo, who disses them, denies their achievements, and intentionally minimizes their monumental contributions to America’s success and prosperity at every turn?
Caitlin Dickerson and Ron Nixon report for the NYT:
“WASHINGTON — The Trump administration is stepping up its pursuit of parents who paid to have their children illegally brought into the United States, according to people familiar with the matter. The effort, part of a widening crackdown on illegal immigration, is aimed at discouraging families from paying human smuggling organizations.
As part of a new round of immigration sweeps, officials are targeting parents or other relatives who were deported, re-entered the United States and then had their children smuggled across the border. Legal experts say cases of illegal re-entry are faster and easier to prove than a smuggling charge.
Immigration and Customs Enforcement officials said it was common for parents or family members in the United States to make illegal payments to smugglers to arrange for children to be brought to the border, where they turn themselves in and are often eventually handed over to their relatives. Tens of thousands of women and children have arrived at the border in the last three years, beginning with a surge of arrivals in the summer of 2014, many seeking refuge from gang violence and extreme poverty in Central America.
It was not clear how many people would be affected by the effort to arrest and prosecute family members for illegal re-entry, but officials familiar with the plan said it would serve as a deterrent to stop other parents and relatives from paying to have children brought to the United States as unaccompanied minors. The officials spoke on the condition of anonymity because they were not authorized to discuss enforcement policies publicly.
ICE officials said they had arrested hundreds of people for smuggling children and referred dozens of cases to the Justice Department for prosecution, including many for illegally re-entering the country and then paying to have children smuggled across the border.
“The risks associated with smuggling children into the U.S. present a constant humanitarian threat,” ICE officials said in a statement. “The sponsors who have placed children directly into harm’s way by entrusting them to violent criminal organizations will be held accountable for their role in these conspiracies.”
Some children reported being raped or held hostage by smugglers for more money. Others have been abandoned by smugglers as they try to cross the border.
Immigration advocates called the new enforcement policy a heartless way to try to reduce smuggling.
“It’s extremely cruel when you started shutting down refugee applicants and rescinding protections for children brought to the country at a young age, to send this kind of message to parents trying to get their kids to safety,” said Chris Rickerd, policy counsel with the American Civil Liberties Union in Washington.
Smuggling cases are among the most challenging to prove, and the biggest hurdle is identifying witnesses, who are likely to be undocumented and unwilling to help, according to Michael J. Wynne, who spent 12 years as an assistant United States attorney in the Rio Grande Valley in South Texas. Targeting parents for re-entering the country illegally, rather than trying to go after them for smuggling, presents prosecutors with a higher likelihood of success.
“It’s a throwdown case,” he said. “You’re going to prosecute the crime where you get the biggest bang for your buck.”
Officials in ICE’s Homeland Security Investigations division have been told to look for cases that can be brought to United States attorneys for possible prosecution, according to people familiar with the enforcement effort. Because prosecutions for illegal re-entry carry a five-year statute of limitations, ICE special agents are also looking to see if they can prosecute relatives of unaccompanied children for other immigration-related crimes, such as giving false statements, according to people familiar with the effort.
Convictions for illegal re-entry are politically popular among immigration restrictionists.
According to Justice Department data analyzed by the Transactional Records Access Clearinghouse, a nonprofit research group at Syracuse University, illegal re-entry made up the bulk of prosecutions for illegal immigration for the last five years.
The Trump administration has made no secret of its plans to go after parents living in the country illegally who bring in their children.
Earlier this year, administration officials said that the thousands of children who arrived each year as unaccompanied minors would no longer be protected against deportation, reversing an Obama administration policy. John F. Kelly, then the Homeland Security secretary and now the White House chief of staff, wrote a memo in February saying parents would be subject to criminal prosecution if they had paid human traffickers to bring children across the border.
The children, who turn themselves in to the Border Patrol, are handed over to the Department of Health and Human Services’ Office of Refugee Resettlement. The office will either place the children in a shelter or release them to a family member. Immigration officials said most of the unaccompanied children apprehended at the border were eventually turned over to a family member, most often a parent, already living in the United States.
Homeland Security officials acknowledge that many of the children are fleeing violence in their home country, but they say that paying smugglers to transport them to the border endangers the children.”
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Read the full article at the link.
Seems like a pretty typical Trump Administration approach: please the White Nationalist/restrictionist base, fill the prisons with nonviolent “criminals,” rack up some nice stats, and make sure not to deal with the root causes of undocumented migration.
“According to Migration Policy Institute estimates, potentially 3,338,000 aliens would be able to qualify for conditional lawful status under H.R.3440, which leads to permanent resident status, and chain migration would make the number much larger.
Moreover, chain migration would make it possible for the DREAMers to pass on legal status and a path to citizenship to the parents who brought them to the United States in violation of our laws, which is sure to be unacceptable to many Republicans.
The chain migration issue does not just apply to a DREAM Act. If it is allowed to block passage of a DREAM Act, it is likely to become an obstacle to every legalization program from now on, and for most undocumented immigrants, there is not going to be another way to obtain lawful permanent resident status.”
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Read Nolan’s complete analysis over at The Hill at the link.
I’m far removed from the days when I had a sense of what’s happening on the Hill. So, if Nolan says that the Dems will have to give on family migration for Dreamers to cut a deal to save them in a GOP-controlled Congress in a Trump presidency, maybe that’s true. Gotta do what you have to do to save lives and preserve America’s future.
But, I do know something about the bogus term “chain migration” It’s a pejorative term coined by restrictionists to further their racial and ethnic agenda.
Chain migration is simply legal family migration, a process that has been ongoing for at least half a century and has done nothing but good things for America. Of course, it makes sense to give preferred treatment to those with family already in the U.S. Of course, having family here helps folks adjust, prosper, and contribute. It’s a win-win. Studies by groups not associated with a restrictionist agenda confirm that.
Moreover, unlike the folks pushing the restrictionist agenda, I actually have seen first-hand the highly positive results of family-based legal immigration for years in Immigration Court. It brings really great folks into our society and allows them to contribute fully to the success of America, and particularly our local communities.
If we want more skills-based immigration, that’s also a good idea. But, that doesn’t require a corresponding cut in family immigration. Immigration is good for America. It’s not a “zero-sum game,” although restrictionists would like us to think so.
The GOP position on parents of Dreamers is absurd. Those folks are already here and contributing to our society and our communities. Many have been here for decades. They are not going anywhere notwithstanding the rhetoric of the restrictionists and the Trump Administration. Other than picking on Dreamers once they become citizens, what could we as a country possibly gain by such an absurd and punitive measure directed against productive long term residents?
I think it is worth considering what pushing for unnecessary and harmful restrictions on family migration says about the real motivations of today’s GOP and its apologists.
The Washington Post reports about today’s first NFL game in London:
“Less than three hours after President Trump called on NFL owners to suspend or fire players who protest during the national anthem, the Baltimore Ravens and Jacksonville Jaguars — the first teams to play on Sunday — linked arms or took a knee during the playing of “The Star-Spangled Banner” before the teams 9:30 a.m. EDT kickoff in London’s Wembley Stadium.
Ravens Coach John Harbaugh joined his players, linking arms, and Ravens Hall of Famer Ray Lewis took a knee. Jaguars owner Shahid Khan, who had contributed $1 million to the Trump inauguration, locked arms with his players in what is believed to be the first visible participation in relation to anthem protests by a league owner.”
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Read the full report on the link.
Our President is a racist. Decent folks should band together and stand up against him. The entire state of Alabama should be hanging its head in shame as should the GOP which enabled and continues to enable this type of destructive conduct by an unqualified President.
And our racist, homophobic Attorney General Jeff Sessions and his White Nationalist agenda are a key part of dividing our country, whipping up bogus racial paranoia, and making a mockery of our justice system. Liz was right!
Meanwhile, star NFL QBs Tom Brady (Patriots) and Aaron Rodgers (Packers) posted their own messages of “unity” with their teammates.
Those of you who have seen Jodie in action know that she is a brilliant, hard-hitting, no holds barred investigative journalist who always gets to the bottom of her story — no matter how little some public officials want the truth to come out! She and her all-star investigative team, including Senior Investigative Platform Manager Rick Yarborough and Photojournalist Editor Stephen Jones, are relentless.
Using her contacts throughout the nation, Jodie shows you what our Government has been trying to hide for years — the ridiculous backlogs and impending failure of one of our nation’s largest, perhaps the largest, Federal Court system! I was stunned and amazed by the amount of technical knowledge and feeling about the human side of this needless national tragedy that Jodie brought to her interview with me.
The judges and staff of the Immigration Court work hard. That’s always been true. But, that has not helped many of the vulnerable individuals caught up in the morass and not always finding the justice that our laws promise them. Similarly, it does not serve the true needs of DHS enforcement to have results determined by the number of pending cases in a particular court, many of which should have long ago been settled by the responsible exercise of prosecutorial discretion as they would have been in almost any other high volume court system in America.
What has happened to the United States Immigration Courts under the control of the U.S.Department of Justice is a sad tale of bureaucratic incompetence, intransigence, inbreeding, improper influence by enforcement authorities, and inability to provide the independent judiciary that can deliver on the court’s forgotten promise of “guaranteeing fairness and due process for all.” This has combined with a disturbing lack of Congressional oversight and reform. How can we clean up this tragic “train wreck” that threatens to topple the entire Federal Court System and to undermine our nation’s Constitution and our ideals?
Over three quarters of U.S counties now have residents in the Immigration Court system! But, even if you aren’t one of them, or a relative, friend, neighbor, employer, teacher, student, employee, patient, customer, or fellow parishioner of one of them, this mess affects you as an American. If this is the way we treat the most vulnerable among us, what’s going to save you when your precious rights are challenged in a U.S. justice system that has lost sight of justice?
Tune in Monday night to find out more about one of “America’s Most Underreported Crises.” Those interested should be able to “live stream” NBC4 News at 6 with the NBC4 app. I assume it will also be available online in the NBC4 app archives under “Investigative Reporting” once the piece has aired.
PWS
09-23-17
UPDATE:
Part II Of Jodie’s Report, which specifically examines the Baltimore and Arlington Immigration Courts, will air at 11:15 PM tonight.
