Category: Lawful Permanent Resident (“Green Card Holder”)

BREAKING NEWS: Trump (Predictably) Fires Acting AG Sally Yates For Refusing To Defend Executive Order

https://www.washingtonpost.com/world/national-security/acting-attorney-general-an-obama-administration-holdover-wont-defend-trump-immigration-order/2017/01/30/a9846f02-e727-11e6-b82f-687d6e6a3e7c_story.html?hpid=hp_rhp-banner-main_mobile-banledeall-917am:homepage/story&utm_term=.2bb3e1f21f15

The Washington Post reports tonight:

“President Trump fired Acting Attorney General Sally Yates Monday night, after Yates ordered Justice Department lawyers Monday not to defend his immigration order temporarily banning entry into the United States for citizens of seven Muslim-majority countries and refugees from around the world.

In a press release, the White House said Yates had “betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States.”

The White House has named Dana Boente, U.S. attorney for the Eastern District of Virginia, as acting attorney general. Boente told The Washington Post that he will agree to enforce the immigration order.
Earlier on Monday, Yates ordered Justice Department not to defend President Trump’s immigration order temporarily banning entry into the United States for citizens of seven Muslim-majority countries and refugees from around the world, declaring in a memo that she is not convinced the order is lawful.

Yates wrote that, as the leader of the Justice Department, she must ensure that the department’s position is “legally defensible” and “consistent with this institution’s solemn obligation to always seek justice and stand for what is right.”
“At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful,” Yates wrote. She wrote that “for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so.”

Yates is a holdover from the Obama administration, but the move nonetheless marks a stunning dissent to the president’s directive from someone who would be on the front lines of implementing it.”

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Nothing very surprising here. As noted in the article, Yates was a holdover from the Obama Administration. I suppose it’s a nice note of protest for her to end her DOJ tenure.

Nevertheless, Yates was basically a bystander and enabler as her boss, AG Loretta Lynch, and the Obama Administration created chaos in the U.S. Immigration Court system. Lynch and Yates, who, to the best of my knowledge neither set foot inside a U.S. Immigration Court nor took the time to speak in person with sitting judges, mandated enforcement-based priorities which attempted to race vulnerable women, children, and families from Central America seeking refuge in the U.S. through the process on an expedited basis without a reasonable chance to obtain lawyers or present their claims. Indeed, while she might be having pangs of conscience about defending the Trump orders, Yates’s DOJ lawyers had little difficulty defending the facially absurd contention that children who couldn’t even speak English could represent themselves on complex asylum claims in Immigration Court. Meanwhile, those who had been patiently waiting on the Immigration Court’s docket for years and were actually ready to proceed to trial on their claims for relief were arbitrarily “orbited” to the end of the line — years in the future. Yates and Lynch inherited a court system in crisis and left it a disaster.

Then, there was judicial selection. Yates presided over a “Rube Goldberg Type” glacial, hyper-bureaucratized, opaque, hiring process that effectively excluded those outside government from the Immigration Judiciary and the Board of Immigration Appeals, while leaving approximately 75 unfilled positions at the end of the Administration and a BIA structure and system that basically institutionalized and reinforced the aggressively anti-due-process procedures put in place by Attorney General Ashcroft during the Bush Administration. She and her boss left behind total chaos and a due process train wreck that mocked the noble vision of the U.S. Immigration Courts:  through teamwork and innovation be the world’s best administrative tribunals guaranteeing fairness and due process for all.

So, forgive me if I can’t get too enthused about Yates’s belated show of backbone.  Her gesture was purely symbolic, and cost her nothing, since she was going to be replaced immediately upon Sessions’s confirmation. But, when she actually had a chance to improve due process in the U.S. Immigration Courts, she was, sadly, MIA.

PWS

01/30/17

 

 

 

 

 

 

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Is President Trump’s EO On Refugees and Visas Legal? Nolan Rappaport of The Hill Says The Statutory Authority Is Clear, If “Clumsily Executed” — Professor David Cole Of Georgetown Law Says It’s Unconstitutional!

Nolan points to section 212(f) of the INA:

“The president’s authority to declare such suspensions can been found in section 212(f) of the INA, the pertinent part of which reads as follows:

‘(f) Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.’
The 90-day suspension can be waived on a case-by-case basis.

The Department of Homeland Security (DHS) has applied this waiver to the entry of lawful permanent residents. He has stated that, “absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.

. . . .

A federal judge has granted an emergency stay request from the American Civil Liberties Union to bar the deportation of people with valid visas who landed in the U.S. after the EO was issued.

Frankly, I do not understand this judge’s order. The issuance of a visa does not guarantee an alien’s admission into the United States. In fact, this is explicitly stated on the State Department’s Frequently Asked Questions site About Visas – The Basics.

“After I have my visa, I will be able to enter the U.S., correct?
“A visa does not guarantee entry into the United States. A visa allows a foreign citizen to travel to the U.S. port-of-entry, and the Department of Homeland Security U.S. Customs and Border Protection (CBP) immigration inspector authorizes or denies admission to the United States.”
Nevertheless, it is apparent that the EO will inconvenience many people who are coming here for legitimate purposes, and that is unfortunate.

On the other hand, it also is apparent that President Trump did not exceed his statutory authority over alien admissions with the directives in the EO, and that he issued it to protect the United States and its citizens from foreign nationals who intend to commit terrorist attacks in the United States.

But was it the best way to accomplish that objective?”

Read Nolan’s full article in The Hill here:

http://thehill.com/blogs/pundits-blog/immigration/316871-trumps-immigration-ban-is-clumsy-but-perfectly-legal

David argues that the EO is clearly unconstitutional:

“According to the Supreme Court, “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 US. 228, 244 (1982). But that command is apparently not clear enough for President Donald Trump. On Friday he signed an Executive Order on refugees that imposes a selective ban on immigration from seven Muslim-majority countries, and at the same time establishes preferential treatment for refugees seeking asylum who are identified with “minority religions” in their country of origin. In case there was any doubt about the latter provision’s intent, Trump told Christian Broadcast News that it was intended to give priority to “Christians” seeking asylum over “Muslims.”

In both respects, the Executive Order violates the “clearest command of the Establishment Clause.” First, as I developed in an earlier post, the Constitution bars the government from targeting Islam. One of the lowest of many low moments in Donald Trump’s presidential campaign was his December 2015 call for a “total and complete shutdown” of Muslim immigration. The proposal treated as presumptively suspect a religion practiced by about 1.6 billion people worldwide, nearly a quarter of the globe’s population. Trump soon retreated to talk of “extreme vetting,” but never gave up his focus on the religiohttp://immigrationcourtside.com/wp-admin/post.php?post=891&action=edit#n of Islam. Friday’s executive orders are of a piece with his many anti-Muslim campaign promises.”

Read David’s full article in Just Security here:

We’ll See You in Court: Why Trump’s Executive Order on Refugees Violates the Establishment Clause

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I see Nolan’s point. But, statutory authority doesn’t necessarily mean it’s constitutional.

On David’s constitutional question, Federal Courts have been willing to intervene at times to protect due process rights of individuals who are physically present in the United States, particularly those who have green cards. The Administration’s ill-thought-out, confusing, and initially heavy handed (or “clumsy” in Nolan’s words) implementation of the EO gave opponents a golden opportunity to score some early temporary victories in cases involving green card holders and others who had valid visas or refugee admission documents at the time the embarked for the United States.

But, beyond that, the EO falls at the intersection of immigration law, foreign policy, and national security, three subjects on which the Federal Courts traditionally have been reluctant to challenge the Executive’s authority. Courts have historically been reluctant to review the Executive’s exercise of authority beyond U.S. territory.  For example, the U.S. Supreme Court upheld the Executive’s authority to engage in “high seas interdiction” of Haitian migrants even though it appeared to violate the spirit, if not the letter, of the Refugee Act of 1980 and the U.N. Convention and Protocol on the Status of Refugees. Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993).

Up until 1965, the U.S. immigration laws blatantly discriminated on the basis of race and national origins. The Supreme Court never held any of those provisions unconstitutional. In fact, it was Congress, not the Supreme Court, which forced the 1965 changes to make the law more equitable.

And, leaving aside the legal and national security policy issues, the politics of this situation are far from clear. The initial NBC-4-DC poll (presumably from the DC Metro viewing area) showed 62% of respondents opposed the President’s order. By contrast, the initial Quinnipiac nationwide poll showed 48% to 42% support for the controversial Executive Order. Perhaps, President Trump is on stronger ground politically than the many nationwide protests and fierce reaction against his Executive Order would indicate.

PWS

01-30-17

 

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

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

Case No. 1:17-cv-116

Date: January 28, 2017

Ammar Aqel Mohammed Aziz, by their next friend,

Aqel Muhammad Aziz, and

John Does 1-60, Petitioners,

v.

 

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

Respondents.
TEMPORARY RESTRAINING ORDER

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

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

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

Dates: January 28, 2017

1

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

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

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

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

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

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

PWS

01/29/17

 

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