Legislation – Page 88 – immigrationcourtside.com

FORMER SEN. RUSS FEINGOLD IN THE GUARDIAN: TRUMP’s WHITE SUPREMACISM IS PART OF THE GOP AGENDA!

https://www.theguardian.com/commentisfree/2017/aug/19/republican-party-white-supremacists-charlottesville

Feingold writes:

“It takes approximately 30 seconds to send a tweet. A half hour to draft and release a statement. And the shelf life of both is only marginally longer. We should not commend Republican party elected officials who claim outrage on social media at Trump’s remarks, often without daring to mention his name. The phony claimed outrage becomes dangerous if it convinces anyone that there is a distinction between Trump’s abhorrent comments and the Republican Party agenda.

The lesson from Charlottesville is not how dangerous the neo-Nazis are. It is the unmasking of the Republican party leadership. In the wake of last weekend’s horror and tragedy, let us finally, finally rip off the veneer that Trump’s affinity for white supremacy is distinct from the Republican agenda of voter suppression, renewed mass incarceration and the expulsion of immigrants.

There is a direct link between Trump’s comments this week and those policies, so where is the outrage about the latter? Where are the Republican leaders denouncing voter suppression as racist, un-American and dangerous? Where are the Republican leaders who are willing to call out the wink (and the direct endorsement) from President Trump to the white supremacists and acknowledge their own party’s record and stance on issues important to people of color as the real problem for our country?

Republicans on the voter suppression commission are enabling Trump’s agenda and that of the white Nazi militia
Words mean nothing if the Republican agenda doesn’t change. Governors and state legislatures were so quick to embrace people of color in order to avoid the impression, they too share Trump’s supreme affinity for the white race. But if they don’t stand up for them they are not indirectly, but directly enabling the agenda of those same racists that Republican members were so quick to condemn via Twitter.

Gerrymandering, strict voter ID laws, felon disenfranchisement are all aimed at one outcome: a voting class that is predominantly white, and in turn majority Republican.

The white supremacist chant of, “you will not replace us,” could easily and accurately be the slogan for these Republican politicians. Their policies will achieve the same racial outcome as Jim Crow – the disenfranchisement and marginalization of people of color.

It is a sad day when more CEOs take action by leaving and shutting down Trump’s Strategy and Policy Forum, and Manufacturing Council, than elected officials take action leaving Trump’s “election integrity” commission.

Businessman are acting more responsive to their customers than politicians are to their voters. At the end of the day, which presidential council is more dangerous? Which most embodies the exact ideology that Trump spewed on Monday? A group of businessmen coming together to talk jobs or a group of elected officials coming together to disenfranchise voters of color?

Anyone still sitting on the voter suppression commission is enabling Trump’s agenda and that of the white Nazi militia that stormed Charlottesville to celebrate a time when the law enforced white supremacy.

If Republican lawmakers want to distinguish themselves from Trump’s comments, they need to do more than type out 144 characters on their phone. They need to take a hard look at their party’s agenda.”

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Read the full article at the link.

I’ve noticed the clear pattern going back to the beginning of the campaign: Trump says or does something totally outrageous; GOP leaders disassociate themselves and claim it doesn’t represent the “real” GOP (whatever that might be); shortly thereafter the same folks go back to supporting Trump and the GOP agenda directed at insuring White control. Nobody switches party, resigns in protest, or tells voters how incompetent and dangerous Trump is. Indeed, these guys are scared silly that they will actually turn off Trump’s White Nationalist base that insures them power even though it’s been many years since they racked up a majority of the popular vote in a national election. Trump then goes on to the next outrage, and the process repeats itself.

Someday, the majority of American voters might actually get a Government that represents their interests rather than those of a White Nationalist minority. But, not any time soon if the GOP can prevent it. So far, they are doing a bang up job of it.

PWS

08-19-17

TIME MAGGIE: DUE PROCESS TAKES ANOTHER HIT IN IMMIGRATION COURT WITH EOIR’S DISINGENUOUS MEMO DISCOURAGING CONTINUANCES IN IMMIGRATION COURT! — When Will The Article III Courts & Commentators Expose The REAL Fraud Being Fobbed Off On The Public By The Sessions DOJ & EOIR? — The DOJ Is Trying To Blame The “Champions Of Due Process” (Private Lawyers) For The “ADR” — Aimless Docket Reshuffling — That The DOJ Created And Actually Mandated— Hold The DOJ Fully Accountable For The Failure Of The U.S. Immigration Courts!

http://time.com/4902820/immigration-lawyers-judges-courts-continuance/

Tessa Berenson writes in Time:

“The president and attorney general have vowed to crack down on illegal immigration, and the new directive could help move cases through the system at a faster clip. Most immigration lawyers agree that the overloaded courts are a major issue. But they fear the end result will be more deportations as judges use the wide discretion afforded to them to curtail continuances. The Immigration and Nationality Act doesn’t establish a right to a continuance in immigration proceedings, Keller’s letter notes. They’re largely governed by a federal regulation which says that an “immigration judge may grant a motion for continuance for good cause shown.”

Immigration lawyers often rely heavily on continuances for their prep work because immigration law grants limited formal discovery rights. Unlike in criminal cases, in which the prosecution is generally required to turn over evidence to the defense, immigration lawyers often have to file a Freedom of Information Act request to find out what the government has on their client. These can take months to process.

“If their priority is speed, we all know that sounds really good, to be more efficient, but usually due process takes a hit when your focus is efficiency,” says Andrew Nietor, an immigration attorney based in San Diego. “By the time we are able to connect with our clients, that first court appearance might be the day after we meet somebody, so we haven’t had the opportunity to do the investigation and do the research. And up until several months ago, it was standard to give immigration attorneys at least one continuance for what they call attorney preparation. Now it’s not standard anymore.”

The Justice Department’s guidance says that “the appropriate use of continuances serves to protect due process, which Immigration Judges must safeguard above all,” and notes that “it remains general policy that at least one continuance should be granted” for immigrants to obtain legal counsel.

But the memo is more skeptical about continuances for attorney preparation. “Although continuances to allow recently retained counsel to become familiar with a case prior to the scheduling of an individual merits hearing are common,” it says, “subsequent requests for preparation time should be reviewed carefully.”

It remains to be seen if this careful review will streamline the ponderous system or add another difficulty for the harried lawyers and hundreds of thousands of immigrants trying to work their way through it. For Jeronimo, it may have been decisive. In mid-August, the judge found that the defense didn’t adequately prove Jeronimo’s deportation would harm his young daughter and gave him 45 days to voluntarily leave the United States. Now Jeronimo must decide whether to appeal his case. But he’s been held in a detention center in Georgia since March, and his lawyers worry that he has lost hope. He may soon be headed back to Mexico, five months after he was picked up at a traffic stop in North Carolina.”

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Read the complete article at the link.

OK, let’s have a reality check here. The tremendous backlog is NOT caused by giving respondents time to find an attorney in an already overwhelmed system or by giving those overworked and under-compensated private attorneys time to adequately prepare their clients’ cases.

No, it’s caused by two things both within the control of the Government. The first is the abuse of the system, actively encouraged by this Administration, for cases of individuals who are law abiding members of the U.S. community, helping our nation prosper, who either should be granted relief outside the Immigrant Court process, or whose cases should be taken off the docket by the reasonable use of prosecutorial discretion (something that the Trump Administration eliminated while outrageously calling it a “return to the rule of law” — nothing of the sort — it’s a return to docket insanity enhanced by intentional cruelty).

Your tax dollars actually pay for the wasteful and counterproductive abuses being encouraged by the Trump Administration! Eventually, Congress will have to find a solution that allows all or most of these folks to stay. But, mindlessly shoving them onto already overwhelmed Immigration Court dockets is not that solution.

The second major cause is even more invidious: Aimless Docket Reshuffling (“ADR”) by the Government! The problematic continuances being given in this system — those of many months, or even many years — are forced upon Immigration Judges by EOIR and the DOJ, usually without any meaningful input from either the sitting Immigration Judges or the affected public. Immigration Judges are required to accommodate politically-motivated “changes in priorities” and wasteful transfer of Immigration Judges wth full dockets (which then must be reset, usually to the end of the docket, sometimes to another Immigration Judge) to other locations, often in detention centers, to support enforcement goals without any concern whatsoever for due process for the individuals before the court or the proper administration of justice within the U.S. Immigration Court system.

There is only one real cure for this problem: removal of the U.S. Immigration Courts from the highly politicized U.S. Department of Justice to an independent Article I Court structure that will focus on due process foremost, and efficient, but fair, court administration. But, until then, it’s up to the press to expose what’s really happening here and to the Article III Courts to call a halt to this travesty.

The “heroes” of the U.S. Immigration Court system, dedicated NGOs and attorneys, many of them acting without compensation or with minimal compensation, are under attack by this Administration and the DOJ. Their imaginary transgression is to insist on a fair day in court for individuals trying to assert their constitutional right to a fair hearing. They are being scapegoated for problems that the U.S. Government has caused, aggravated, and failed to fix, over several Administrations.

The DOJ is creating a knowingly false narrative to cover up their failure to deliver due process in the U.S. Immigration Courts and to shift the blame to the victims and their representatives. A simple term for that is “fraud.”

If we allow this to happen, everyone will be complicit in an assault not only on American values but also on the U.S. Constitution itself, and the due process it is supposed to guarantee for all. If it disappears for the most vulnerable in our society, don’t expect it to be there in the future when you or those around you might need due process of law. And, when you don’t get due process, you should also expect the Government to blame you for their failure.

PWS

08-19-17

IMMIGRATIONPROF BLOG: PROFESSOR BILL ONG HING LAYS BARE THE WHITE NATIONALIST INTENT BEHIND THE RAISE ACT — “Asian, Latino, and African Exclusion Act of 2017” — And, It’s Bad For Our Economy To Boot!

http://lawprofessors.typepad.com/immigration/2017/08/trumps-asian-latino-and-african-exclusion-act-of-2017.html

Professor Ong Hing writes:

“From the Los Angeles and San Francisco Daily Journal:

President Trump’s recent call for overhauling the legal immigration system suffers from serious racial implications and violations of basic family values. Earlier this month he endorsed the Reforming American Immigration for a Strong Economy (RAISE) Act, which would eliminate all family reunification categories beyond spouses and minor children of U.S. citizens and lawful permanent residents (reducing the age limit for minor children from 21 to 18), and would lower capped family categories from 226,000 green cards presently to 88,000. The prime relatives targeted for elimination are siblings of U.S. citizens and adult children of citizens and lawful residents. The diversity immigration lottery program, which grants 50,000 green cards to immigrants from low-admission countries, also would be terminated. The RAISE Act is essentially the Asian, Latino, and African Exclusion Act of 2017. Why? Because the biggest users of family immigration categories are Asians and Latinos, and the biggest beneficiaries of the diversity lottery are Africans.

The RAISE Act is an elitist point system that favors those with post-secondary STEM degrees (science, technology, engineering, or mathematics), extraordinary achievement (Nobel laureates and Olympic medalists), $1.35 to $1.8 million to invest, and high English proficiency. However, it fails to connect prospective immigrants with job openings and makes incorrect assumptions about family immigrants.

Promoting family reunification has been a major feature of immigration policy for decades. Prior to 1965, permitting spouses of U.S. citizens, relatives of lawful permanent residents, and even siblings of U.S. citizens to immigrate were important aspects of the immigration selection system. Since the 1965 reforms, family reunification has been the major cornerstone of the immigration admission system. Those reforms, extended in 1976, allowed twenty thousand immigrant visas for every country. Of the worldwide numerical limits, about 80 percent were specified for “preference” relatives of citizens and lawful permanent residents, and an unlimited number was available to immediate relatives of U.S. citizens. The unlimited immediate relative category included spouses, parents of adult citizens, and minor, unmarried children of citizens. The family preference categories were established for adult, unmarried sons and daughters of citizens, spouses and unmarried children of lawful permanent resident aliens, married children of citizens, and siblings of citizens. Two other preferences (expanded in 1990) were established for employment-based immigration.

Asian and Latino immigration came to dominate these immigration categories. The nations with large numbers of descendants in the United States in 1965, i.e., western Europe, were expected to benefit the most from a kinship-based system. But gradually, by using the family categories and the labor employment route, Asians built a family base from which to use the kinship categories more and more. By the late 1980s, virtually 90 percent of all immigration to the United States – including Asian immigration – was through the kinship categories. And by the 1990s, the vast majority of these immigrants were from Asia and Latin America. The top countries of origin of authorized immigrants to the United States today include Mexico, China, India, the Philippines, the Dominican Republic, Vietnam, and El Salvador.

As Asian and Latin immigrants began to dominate the family-based immigration system in the 1970s and 1980s, somehow the preference for family reunification made less sense to some policymakers. Since the early 1980s, attacking kinship categories – especially the sibling category – has become a political sport played every few years. Often the complaint is based on arguments such as we should be bringing in skilled immigrants, a point system would be better, and in the case of the sibling category, brothers and sisters are not part of the “nuclear” family. Proposals to eliminate or reduce family immigration were led by Senator Alan Simpson throughout the 1980s, Congressman Bruce Morrison in 1990, and Senator Simpson and Congressman Lamar Smith in 1996. As prelude to the RAISE Act, the Senate actually passed S.744 in 2013 that would have eliminated family categories and installed a point system in exchange for a legalization program for undocumented immigrants.

Pitting so-called “merit-based” visas in opposition to family visas implies that family immigration represents the soft side of immigration while point-based immigration is more about being tough and strategic. The wrongheadedness of that suggestion is that family immigration has served our country well even from a purely economic perspective. The country needs workers with all levels of skill, and family immigration provides many of the needed workers.

A concern that the current system raises for some policymakers is based on their belief that the vast majority of immigrants who enter in kinship categories are working class or low-skilled. They wonder whether this is good for the country. Interestingly enough, many immigrants who enter in the sibling category actually are highly skilled. The vast majority of family immigrants are working age, who arrive anxious to work and ready to put their time and sweat into the job. But beyond that oversight by the complainants, what we know about the country and its general need for workers in the short and long terms is instructive.

The Wharton School of Business projects that the RAISE Act would actually lead to less economic growth and fewer jobs. Job losses would emerge because domestic workers will not fill all the jobs that current types of immigrant workers would have filled. In the long run, per capita GDP would dip. Furthermore, in the Bureau of Labor Statistics’s forecast of large-growth occupations, most jobs require only short- or moderate-term on-the-job training, suggesting lower skilled immigrants could contribute to meeting the demand for these types of jobs.

The economic data on today’s kinship immigrants are favorable for the country. The entry of low-skilled as well as high-skilled immigrants leads to faster economic growth by increasing the size of the market, thereby boosting productivity, investment, and technological practice. Technological advances are made by many immigrants who are neither well-educated nor well-paid. Moreover, many kinship-based immigrants open new businesses that employ natives as well as other immigrants; this is important because small businesses are now the most important source of new jobs in the United States. The current family-centered system results in designers, business leaders, investors, and Silicon Valley–type engineers. And much of the flexibility available to American entrepreneurs in experimenting with risky labor-intensive business ventures is afforded by the presence of low-wage immigrant workers. In short, kinship immigrants contribute greatly to this country’s vitality and growth, beyond the psychological benefits to family members who are able to reunite.

The preamble to the Universal Declaration of Human Rights highlights the unity of the family as the “foundation of freedom, justice and peace in the world” for good reason. Our families make us whole. Our families define us as human beings. Our families are at the center of our most treasured values. Our families make the nation strong.

Bill Ong Hing is the Founder and General Counsel of the Immigrant Legal Resource Center, and Professor of Law and Migration Studies, University of San Francisco”

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Unhappily, America has a sad history of using bogus arguments about the economy and protecting American labor to justify racist immigration acts. Among other things, the Chinese Exclusion Act was supposed to protect the U.S. against the adverse effects of “coolie labor.”

I find it remarkable that those pushing the RASE Act are so ready to damage American families, the fabric of our society, and our economy in a futile attempt to achieve their White Nationalist vision.

PWS

08-18-17

HON. JEFFREY CHASE ON WHY WE NEED AN ARTICLE I IMMIGRATION COURT!

https://www.jeffreyschase.com/blog/2017/8/17/the-need-for-an-independent-immigration-court

Jeffrey writes:

“On August 8, the Department of Justice issued a highly unusual press release that inadvertently illustrated the need for an independent Article I immigration court. Titled “Return to Rule of Law Under Trump Administration Marked by Increase in Key Immigration Statistics,” the release proudly cited a 30 percent increase in the number of people ordered deported by immigration judges since the present administration took office (which of course corresponded with a marked decrease in the number of individuals granted relief and allowed to remain legally in the country). The press release was posted on the public website of the Executive Office for Immigration Review, the agency which includes both the immigration courts and the Board of Immigration Appeals.

On his blog immigrationcourtside.com, former BIA chairman Paul Schmidt drew some apt analogies, imagining what the reaction would be if the Supreme Court were to proudly announce that in support of Donald Trump’s deregulaton initiative, it had struck down 30 percent more regulations since he took office? Or if a circuit court released a self-congratulatory statement that in support of the president’s war on drugs, it issued 30 percent more convictions and 40 percent longer sentences for drug crimes than under the previous administration? Such statements would be unthinkable, and would trigger a strong backlash. But not so for the August 8 announcement. Fortunately, EOIR itself did not sink to issuing such a statement. Unfortunately, EOIR felt the need to post the release in a prominent place on its website (either because it was instructed to do so, or was afraid not to).

The National Association of Immigration Judges (the immigration judges’ union) has for years made a strong argument for the creation of an independent Article I immigration court. The 334 immigration judges are the only judges among the Department of Justice’s 112,000 total employees. The concept of the judges’ independence and political neutrality never really took within DOJ. When both the former INS and EOIR were housed within Justice (prior to the former being moved to the Department of Homeland Security after the reorganization that followed the 9/11 tragedy), INS higher-ups would make complaints about immigration judges known to the Deputy Attorney General’s office, which oversaw EOIR’s director, a process that would be highly improper in other courts. When 1996 legislation provided immigration judges with contempt power over attorneys appearing in their courts, INS managed to indefinitely block implementing DOJ regulations because the agency did not wish to afford immigration judges such authority over their fellow DOJ attorneys within INS; as a result, the judges still lack such contempt power 21 years later.

. . . .

It is a cornerstone of our justice system that judges not only be impartial, but that they also avoid the appearance of impartiality. 28 U.S.C. § 455(a) requires federal judges to recuse themselves in any proceeding in which their impartiality might reasonably be questioned. How can the impartiality of an immigration judge not be questioned when the agency that employs him or her releases statements celebrating the increase in the percentage of cases in which deportations are ordered as a “return to the rule of law?”

The partisan pronouncement raises questions not only as to the independence of the judges in their decision making. It also casts a cloud over hiring and policy decisions by EOIR’s management. In hiring new judges and Board members, will EOIR’s higher-ups feel pressured to choose candidates likely to have higher deportation rates? Are they likely to implement policies aimed at increasing fairness or expediency? As an example, let’s use what Paul Schmidt aptly refers to as “aimless docket reshuffling,” in which immigration judges are detailed away from their home courts to hear cases elsewhere. Of course, this means that the individuals scheduled for hearing in the home court (who have likely been waiting two years for their hearing) need to have their cases adjourned due to the judge’s absence. I have no information as to what factors go into making these detailing decisions. But hypothetically, if EOIR’s managers feel pressure to produce more deportations, might they consider shifting judges in high-volume courts in large cities such as New York or Los Angeles, where the respondents are likely to be represented by counsel, have adequate time to prepare and gather evidence, and have access to call witnesses (including experts), to instead hear cases of detained, recently-arrived respondents in remote areas where they have less access to counsel, community support, evidence, or witnesses? In which of those two scenarios might the judge “accomplish” more deportations in the same amount of time?

There is some irony in the use of the term “rule of law” in the Aug. 8 press release, because rules of law take a great deal of time to develop properly. In a 2013 article titled “Let Judges Be Judges,” , Hon. Dana Leigh Marks, the president of the National Association of Immigration Judges, stated that allowing “immigration judges to consider the individual circumstances unique to each case” in an independent Article I court setting “would create a fine-tuned tool…instead of the blunt instrument that now exists.” A “fine-tuned tool” is needed, as many of the claims presently being heard involve very complex legal issues. Many cases involve those fleeing an epic humanitarian crisis in Central America. Case law continues to develop, as leading asylum attorneys and scholars have spent years crafting nuanced theories to clarify the nexus between the serious harm suffered or feared and one of the five protected grounds required for a grant of asylum. In other claims from countries such as Albania or the former Soviet republics, highly detailed testimony from country condition experts is required to educate judges as to specific dangers not mentioned in the generalized State Department country reports. This type of painstaking development of the record cannot be accomplished under conditions termed in a 2009 report of the Appleseed Foundation as “assembly line injustice.”

In summary, a Department of Justice which chooses to publicly celebrate accelerated hearings resulting in orders of deportation as a positive development cannot oversee an immigration court system which aspires to provide “due process and fair treatment for all parties involved.”

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Head over to Jeffrey’s great blog at the above link for the complete story.

Jeff Sessions seldom, if ever, has a kind word to say about migrants of any type. He has been the enthusiastic “point man” for the President’s xenophobic, White Nationalist immigration enforcement program. He has promoted and repeated false narratives about immigrants and crime. The idea of him running the U.S. Immigration Court system charged with proving fair hearings to migrants is preposterous on it’s face.

And, it’s not just Sessions. All Attorneys General have the actual or apparent conflict of interest described by Jeffrey Chase. Sessions is just one of the most outrageous examples to date. If an Immigration Judge made the type of statement set forth in the DOJ press release, he or she would undoubtedly be charged with ethical violations. And, let’s not forget that under the bizarre structure of the U.S. Immigration Courts, the Attorney General has authority to “certify” any individual case to him or her self and substitute his decision for that of the Immigration Judge and the BIA.

PWS

08-16-17

NEW FROM TAL KOPAN AT CNN: DACA ON THE ROPES — “Only Congress can enact a permanent solution to the DACA situation!”

http://www.cnn.com/2017/08/15/politics/daca-anniversary-peril/index.html

Tal reports:

“Washington (CNN)Tuesday marks the fifth anniversary of a program that protects young undocumented immigrants from deportation — but supporters worry this one could be its last.

The Deferred Action for Childhood Arrivals program, or DACA, was implemented in 2012 under President Barack Obama, and President Donald Trump’s administration has continued running despite heated rhetoric against it from Trump on the campaign trail.

But DACA has arguably never been on shakier ground, and advocates for the program are desperately trying to protect it, including with a planned march Tuesday on the White House.

Nearly 800,000 undocumented immigrants have benefited from DACA, which protects individuals who were brought to the US illegally as children from deportation, and offers them the ability to work, study and drive legally. Applicants must meet certain criteria, pass a background check and maintain a clean record.

A storm is brewing for DACA this September

But despite the fact that the administration has continued to issue permits, concerns are increasing that the program could be ended.

“DACA is under grave threat,” Nevada Democratic Sen. Catherine Cortez Masto said on a conference call with reporters Monday.

Ten state attorneys general, led by Texas Attorney General Ken Paxton, have issued an ultimatum to the Trump administration — sunset DACA by September 5, or we’ll challenge it in court. The attorneys general have threatened to petition a court that’s considering a similar but separate Obama administration deferred action program, for parents, to also weigh the legality of DACA.

Experts believe that given the makeup of the court hearing the case, and its previous ruling against the parents program, the judges involved would likely strike down DACA as well.

If the court allows arguments against DACA, the Justice Department would be forced to decide whether it will defend the program. While Trump has recently spoken about how sympathetic he is to the “Dreamers” who receive DACA, saying the choice is “very, very hard to make,” he campaigned on a pledge to immediately rescind it. And the US attorney general, former Sen. Jeff Sessions, has been a chief opponent of the program.

The White House offered a cryptic statement on the program’s future, expressing only concern with illegal immigration.

“The President’s priority remains protecting the jobs, wages and security of American workers, families and communities — including the millions of Hispanic and African American workers disadvantaged by illegal immigration,” an administration official said.

On the call with reporters and a DACA recipient, Masto and California Democratic Sen. Kamala Harris extolled its virtues, citing estimates that the US economy would lose hundreds of billions of dollars without the contributions of DACA recipients.

Trump: DACA decision ‘very, very hard to make’

“This is not just about what is morally right, this is not only a point about what is right in terms of fighting for the ideals of our country,” Harris said. “This is also right and smart in terms of public benefits.”

Both are co-sponsors of one bipartisan proposal to make the program permanent in Congress, the Dream Act, which also has three Republican co-sponsors. It’s one of four proposed bills that would codify DACA if the administration were to rescind it or the courts were to strike it down.

The Department of Justice did not respond to a CNN request for comment.

US Citizenship and Immigration Services, the division of the Department of Homeland Security, said the program remains under review.

“The Department of Homeland Security’s stance remains the same — the future of the DACA program continues to be under review with the administration,” said USCIS press secretary Gillian Christensen. “The President has remarked on the need to handle DACA with compassion and with heart. As a matter of policy, we do not comment on pending litigation, but we have said before only Congress can enact a permanent solution to the DACA situation.”

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Here is some of Tal’s earlier reporting on the DACA issue: http://immigrationcourtside.com/2017/08/07/two-new-ones-from-cnns-amazing-tal-kopan-september-may-bring-dark-clouds-for-dreamers-trump-administration-lags-in-filling-top-spots/

I think the last statement in Tal’s article, from USCIS, hits the nail on the head. Congress has to come up with a solution to this issue or there will be chaos. Imagine another 800,000 cases of young people thrown into the U.S. Immigration Courts on top of the 610,000 cases already there! It’s Jason Dzubow’s vision of “Trump’s 100 year deportation plan” in action. http://immigrationcourtside.com/2017/08/14/jason-dzubow-in-the-asylumist-trumps-101-year-plan-for-removals-malevolence-tempered-by-incompetence/

As Nolan Rappaport has pointed out, it’s unlikely that any of the pending bills, in their present forms, will attract enough GOP support to be enacted. http://immigrationcourtside.com/2017/08/07/n-rappaport-in-the-hill-dems-dreamer-bill-offers-false-hope/

But perhaps Democrats and some willing Republicans can work on a compromise legislative solution. Otherwise, the results aren’t likely to be pretty — for the Dreamers or for our country’s future.

PWS

08-15-17

JASON DZUBOW IN THE ASYLUMIST: TRUMP’S 101 YEAR PLAN FOR REMOVALS! — “Malevolence tempered by incompetence!”

http://www.asylumist.com/2017/07/27/president-trumps-101-year-deportation-plan/

Jason writes:

“Joseph Stalin and Mao Zedong had their five-year plans. Nikita Khrushchev had his seven-year plan. And now President Trump has a 101-year plan. That’s how long it will take to deport the country’s 11 million undocumented residents if current trends continue.

Happy Birthday! Now, get the hell out of my country!

The most recent statistics on case completions in Immigration Court show that the Trump Administration has issued an average of 8,996 removal (deportation) orders per month between February and June 2017 (and 11,000,000 divided by 8,996 cases/month = 1,222.8 months, or 101.9 years). That’s up from 6,913 during the same period last year, but still well-below the peak period during the early days of the Obama Administration, when courts were issuing 13,500 removal orders each month.

Of course, the Trump Administration has indicated that it wants to ramp up deportations, and to that end, the Executive Office for Immigration Review or EOIR–the office that oversees the nation’s Immigration Courts–plans to hire more Immigration Judges (“IJs”). Indeed, Jefferson Beauregard Sessions, the Attorney General (at least for now) announced that EOIR would hire 50 more judges this year and 75 next year.

Assuming EOIR can find 125 new IJs, and also assuming that no currently-serving judges retire (a big assumption given that something like 50% of our country’s IJs are eligible to retire), then EOIR will go from 250 IJs to 375. So instead of 101 years to deport the nation’s 11 million undocumented residents, it will only take 68 years (assuming that no new people enter the U.S. illegally or overstay their visas, and assuming my math is correct–more big assumptions).

But frankly, I’m doubtful that 68 years–or even 101 years–is realistic. It’s partly that more people are entering the population of “illegals” all the time, and so even as the government chips away at the 11,000,000 figure, more people are joining that club, so to speak. Worse, from the federal government’s point of view, there is not enough of a national consensus to deport so many people, and there is significant legal resistance to Mr. Trump’s immigration agenda.

In addition to all this, there is the Trump Administration’s modus operandi, which is best characterized as malevolence tempered by incompetence. One statistic buried in the recent deportation numbers illustrates this point. In March 2017, judges issued 10,110 removal orders. A few months later, in June, judges issued 8,919 removal orders.

This means that the number of deportation orders dropped by 1,191 or about 11.8%. How can this be? In a word: Incompetence (I suppose if I wanted to be more generous—which I don’t—I could say, Inexperience). The Trump Administration has no idea how to run the government and their failure in the immigration realm is but one example.

There are at least a couple ways the Administration’s incompetence has manifested itself at EOIR.

One is in the distribution of judges. It makes sense to send IJs where they are needed. But that’s not exactly what is happening. Maybe it’s just opening night jitters for the new leadership at EOIR. Maybe they’ll find their feet and get organized. But so far, it seems EOIR is sending judges to the border, where they are underutilized. While this may have the appearance of action (which may be good enough for this Administration), the effect—as revealed in the statistical data—is that fewer people are actually being deported.

As I wrote previously, the new Acting Director of EOIR has essentially no management experience, and it’s still unclear whether he is receiving the support he needs, or whether his leadership team has the institutional memory to navigate the EOIR bureaucracy. Perhaps this is part of the reason for the inefficient use of judicial resources.

Another reason may be that shifting judges around is not as easy as moving pieces on a chess board. The IJs have families, homes, and ties to their communities. Not to mention a union to protect them (or try to protect them) from management. And it doesn’t help that many Immigration Courts are located in places that you wouldn’t really want to live, if you had a choice. So getting judges to where you need them, and keeping them there for long enough to make a difference, is not so easy.

A second way the Trump Administration has sabotaged itself is related to prosecutorial discretion or PD. In the pre-Trump era, DHS attorneys (the “prosecutors” in Immigration Court) had discretion to administratively close cases that were not a priority. This allowed DHS to focus on people who they wanted to deport: Criminals, human rights abusers, people perceived as a threat to national security. In other words, “Bad Hombres.” Now, PD is essentially gone. By the end of the Obama Administration, 2,400 cases per month were being closed through PD. Since President Trump came to office, the average is less than 100 PD cases per month. The result was predictable: DHS can’t prioritize cases and IJs are having a harder time managing their dockets. In essence, if everyone is a deportation priority, no one is a deportation priority.

Perhaps the Trump Administration hopes to “fix” these problems by making it easier to deport people. The Administration has floated the idea of reducing due process protections for non-citizens. Specifically, they are considering expanding the use of expedited removal, which is a way to bypass Immigration Courts for certain aliens who have been in the U.S. for less than 90 days. But most of the 11 million undocumented immigrants have been here much longer than that, and so they would not be affected. Also, expansion of expedited removal would presumably trigger legal challenges, which may make it difficult to implement.

Another “fix” is to prevent people from coming here in the first place. Build the wall. Deny visas to people overseas. Scare potential immigrants so they stay away. Illegally turn away asylum seekers at the border. Certainly, all this will reduce the number of people coming to America. But the cost will be high. Foreign tourists, students, and business people add many billions to our economy. Foreign scholars, scientists, artists, and other immigrants contribute to our country’s strength. Whether the U.S. is willing to forfeit the benefits of the global economy in order to restrict some people from coming or staying here unlawfully, I do not know. But the forces driving migration are powerful, and so I have real doubts that Mr. Trump’s efforts will have more than a marginal impact, especially over the long run. And even if he could stop the flow entirely, it still leaves 11 million people who are already here.

There is an obvious alternative to Mr. Trump’s plan. Instead of wasting billions of dollars, harming our economy, and ripping millions of families apart, why not move towards a broad legalization for those who are here? Focus on deporting criminals and other “bad hombres,” and leave hard-working immigrants in peace. Sadly, this is not the path we are on. And so, sometime in 2118, perhaps our country will finally say adieu to its last undocumented resident.”

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

Amen!

PWS

08-14-17

THE GIBSON REPORT — August 14, 2017

The Gibson Report 08-14-17

Here are the “Headliners:”

“TOP UPDATES

ICE eService for OCC

On Monday, August 21, 2017, U.S. Immigration and Customs Enforcement (ICE) eService will become available in the ICE Office of the Principal Legal Advisor (OPLA) New York City Office of Chief Counsel (OCC) area of responsibility. See attached brochure, which describes what can be served electronically. To request access to ICE eService, please visit eserviceregistration.ice.gov.

ACLU Class Action Suit Charges that Efforts to Detain and Deport Children are Based on Unfounded Gang Allegations

Attorneys representing immigrant children and their families sued Attorney General Jeff Sessions, Immigration and Customs Enforcement (ICE), and the U.S. Department of Health and Human Services’ Office of Refugee Resettlement (ORR) today for using unsubstantiated claims of gang affiliation to illegally detain teenagers in jail-like facilities in California.

National Conference of State Legislatures Issues Report on Increase in State Immigration Legislation

Enacted legislation related to immigration increased in the first half of 2017 by 90 percent to 133 laws compared with 70 laws in 2016. The number of resolutions increased by 22 percent to 195 from 159. Lawmakers in 47 states enacted 133 laws and 195 resolutions related to immigration, for a total of 328. An additional nine bills were vetoed by governors and 18 are pending signatures. Trends 2017: Sanctuary policies, Refugees, Education/civics, Education/in-state tuition.

For-Profit Private Prison Operator Tells Investors that ICE Will Improve Company Earnings

“While in the past, ICE processing centers have been primarily utilized for individuals detained for multiple illegally border crossings, increasingly, ICE intends to utilize contract bed capacity for interior enforcement.”

ICE Investigating Families

Catholic Charities: It seems that ICE and HSI are getting contact information for families from minors at the border and are going on a fishing expedition to get evidence of immigration and criminal violations. The first wave is taking action against people with immigration violations–arresting and detaining household members with outstanding removal orders, issuing NTA (but also sometimes detaining) those who are undocumented. There will likely be a second wave of using smuggling inadmissibility charges to limit the relief that these immigrants can receive. The third wave will be criminally prosecuting people on federal charges of alien smuggling (which is a crime and carries 5 years of jail time). CLINIC and NYIC and others are tracking these encounters. You may want to report to them. This is what we are telling people contacted by HSI and ICE:

Talking to them is completely voluntary. They have not issued a subpoena and you are not obligated to go to a meeting or answer your door. They may show up at your house; you do not have to let them in.
You have a right to consult with a lawyer before you talk to them. You have a right to have a lawyer present during any conversations with them.
5th Amendment. If you talk to them, what you say can and will be used against you in a deportation case and a criminal case. They are looking for evidence to use against you.

4. Smuggling is a crime. (We usually walk then through the statute). It includes paying for but also just arranging and planning for someone to enter the U.S. It doesn’t matter why you did this or how sympathetic the story is. If you admit to this crime, you can be prosecuted and put in jail. It is also an immigration violation which can be used against you.”

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Interesting that even ICE is more advanced in electronic filing than the Immigration Courts!

PWS

08-14-17

POLITICO HIGHLIGHTS LACK OF DUE PROCESS, CULTURAL AWARENESS, PROPER JUDICIAL TRAINING IN U.S. IMMIGRATION COURT’S HANDLING OF VIETNAMESE DEPORTATION CASE!

http://www.politico.com/story/2017/08/14/trump-immigration-crackdown-vietnam-241564

“Trump’s immigration crackdown hits Vietnam
Inside the case of one man who feared torture because of his Montagnard roots, but was deported last month.
By DAVID ROGERS 08/14/2017 05:39 AM EDT
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President Donald Trump’s “get tough” approach to immigration is now impacting — of all people — the Montagnard hill tribesmen who fought alongside the Green Berets in the Vietnam War.

The son of one such Montagnard veteran was deported back to Vietnam in July, a stunning move for many in the refugee community because of their history in the war and the continued evidence of political and economic mistreatment of Montagnards in Vietnam.

. . . .

The case captures all the twists and turns in the U.S. immigration system, compounded by pressure from the White House for quick results. No one emerges looking all good or all bad, but the outcome shows a remarkable blindness to history.

Nothing reveals this better, perhaps, than the exchanges between judge and defendant during a brief immigration court proceeding in June 2016, when Chuh was first ordered deported.

At that time, Chuh was being held at an ICE detention facility in Irwin County, Georgia. He had completed a state prison term for a first-time felony conviction in North Carolina related to trafficking in the synthetic drug MDMA, commonly called “ecstasy.” He remained without legal counsel and had to speak back-and forth by video conference with U.S. Immigration Court Judge William A. Cassidy of Atlanta, about 180 miles away.

POLITICO obtained a digital audiotape of the proceeding from the Justice Department under the Freedom of Information Act. The entire hearing ran just 5 minutes, 2 seconds, and the two men, Cassidy and Chuh, might have been ships passing in the night.

Chuh told Cassidy that he feared torture if he were sent back to Vietnam. But following the misguided advice of fellow detainees, he hurt his own cause by rejecting the judge’s offers to give him more time to find an attorney and seek protection.

On the other side, Cassidy, a former prosecutor, did not probe why Chuh feared torture. In fact, the judge showed no sign of knowing he was dealing with a Montagnard defendant and not the typical Vietnamese national.

Time and again, Cassidy incorrectly addressed Chuh as “A. Chuh” — not realizing that the A is Chuh’s single-letter last name and a telltale sign of his Montagnard heritage. The process was so rushed that Cassidy inadvertently told Chuh “Buenos dias” before correcting himself at the end.

Most striking, the word Montagnard is never heard in the entire tape. Its origins are French, a remnant of Vietnam’s colonial past and meaning, roughly, “people of the mountain.”

Over the years, the Montagnard label has been applied broadly to several indigenous ethnic groups concentrated in the Central Highlands and with their own distinct languages and customs. They share a hunger for greater autonomy in Vietnam and have been willing to side with outsiders, like the French and later Americans, to try to get it. At the same time, Vietnam’s dominant ethnic Kinh population has long treated the hill tribes as second-class citizens. Regardless of who has ruled Vietnam, the record is often one of suspicion and mistreatment toward the Montagnards.

The Montagnards’ strategic location in the Highlands, however, has long made them an asset in times of war. And beginning early in the 1960s, the Central Intelligence Agency and Green Berets recruited tribesmen to collect intelligence and disrupt enemy supply lines.

Chuh’s 71-year-old father, Tony Ngiu, assisted in this U.S. effort, but paid dearly later when he was sentenced to nine years in reeducation camps and hard labor by the victorious North. He was able to come to the U.S. in 1998 with much of his family, including Chuh, then a boy of about 13.

Like many Montagnards, he settled in North Carolina, which is also home to military installations used by the Green Berets, more formally known as U.S. Army Special Forces. But because Chuh was 18 by the time his father became a full citizen, he did not derive automatic citizenship himself.

“I am very, very sad,” Ngiu said. “I want them to send my son home so he can take care of his children.”

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

Read Rogers’s much longer full article at the link.

It’s not surprising that this case arose in the oft-criticized Atlanta Immigration Court where due process is routinely subordinated to achieving high levels of rapid removals. Unfortunately, as Jason Dzubow pointed out in a blog on The Asylumist that I previously featured, “We are all in Atlanta now!”

http://immigrationcourtside.com/2017/07/20/in-immigration-circles-the-atlanta-court-is-known-as-where-due-process-goes-to-die-will-it-be-the-new-norm-the-asylumist-jason-dzubow-says-were-all-in-atlanta-now/

Additionally, the SPLC has documented that notwithstanding earlier complaints, EOIR has done little or nothing to stop the unprofessional conduct and anti-migrant bias demonstrated by some of the U.S. Immigration Judges at the Stewart, GA Immigration Court.

http://immigrationcourtside.com/2017/08/10/normalizing-the-absurd-while-eoir-touts-its-performance-as-part-of-trumps-removal-machine-disingenuously-equating-removals-with-rule-of-law-the-ongoing-assault-on-due-process-in-us-immig/

Indeed, it appears that the Trump-Sessions group actually likes the focus on assembly-line removals without much regard for fairness or due process that they have seen coming out of the Atlanta Court. After all, it produces high numbers of final orders of removal which, according to the latest EOIR press release, has replaced guaranteeing fairness and due process as the objective of the U.S. Immigration Courts. As Jason Dzubow noted in the above-linked blog, the Administration has rewarded those who have learned how due process is denied in Atlanta with key positions at DHS and EOIR.

And, training and continuing legal education for Immigration Judges was one of the earliest casualties of the “Sessions era” at the DOJ. If the message from on high is “move ’em all out asap” — preferably by in absentia hearings without any due process or in hearings conducted in detention with the migrants unrepresented — why would any judge need training in the law, due process, or preparing carefully constructed judicial opinions?

Harken back to the days of the Bush II Administration. After Ashcroft’s “purge of the BIA” and following 9-11, some Immigration Judges and Board Members assumed that it was “open season” on migrants. How many removal orders were being churned out and how fast they were being completed became more important that what was being done (or more properly, what corners were being cut) to produce the final orders.

As the work of the BIA and the Immigration Courts deteriorated and became sloppier and sloppier, and as the incidents of Immigration Judges’ being rude, belligerent, and generally unprofessional to the individuals and private attorneys coming before them mounted, the Article III Federal Courts pushed back. Published opinions began “blistering” the performance of individual Immigration Judges and BIA Members by name, some prominent Federal Judges on both the conservative and liberal sides of the equation began speaking out in the media, and the media and the internet featured almost daily stories of the breakdown of professionalism in the U.S. Immigration Courts. The Courts of Appeals also remanded BIA final orders, many of which summarily affirmed problematic Immigration Court rulings, by the droves, effectively bringing the Bush Administration’s “deportation express” to a grinding halt as the BIA was forced to further remand the cases to the Immigration Courts for “do-overs.”

Finally, it became too much for then Attorney General Alberto Gonzalez. Although Gonzalez will hardly go down in history as a notable champion of due process, he finally issued what was basically a “cease and desist order” to the BIA and the Immigration Judges. Unfortunately, rather than admitting the primary role of the DOJ and the Administration in the disaster, and changing some of the DOJ policies and procedures that contributed to the problem, Gonzalez effectively chose to blame the whole debacle on the Immigration Judges, including those who didn’t participate in the “round ’em up and move ’em out” spectacle spawned by Administration policies. Gonzalez ordered some reforms in professionalism, discipline, and training which had some shot term effects in improving due process, and particularly the results for asylum seekers, in Immigration Court.

But, by the present time, EOIR has basically returned to the “numbers over quality and due process” emphasis. The recent EOIR press release touting increased removals (not surprisingly grants of relief to migrants decreased at the same time) in response to the President’s immigration enforcement initiatives clearly shows this changed emphasis.

Also, as Rogers notes in his article, the BIA and some Immigration Judges often apply an “ahistorical” approach under which the lessons of history are routinely ignored. Minor, often cosmetic, changes such as meaningless or ineffective reforms in statutes and constitutions, appointment of ombudsmen, peace treaties, cease fires, and pledges to clean up corruption and human rights abuses (often issued largely to placate Western Governments and NGOs to keep the foreign aid money flowing) are viewed by the BIA and Immigration Judges as making immediate “material improvements” in country conditions in asylum cases, although the lessons of history and common sense say otherwise.

Sadly, the past appears to be prologue in the U.S. Immigration Courts. It’s past time for Congress to create and independent, Article I U.S. Immigration Court.

PWS

08-14-17

NOLAN RAPPAPORT IN THE HILL: RAISE ACT COULD BE AN OPPORTUNITY FOR DREAMERS!

http://thehill.com/blogs/pundits-blog/immigration/346367-how-trumps-legal-immigration-cuts-could-be-a-blessing-to

Nolan writes:

“Senators Tom Cotton (R-Ark.) and David Perdue (R-Ga.) recently introduced a revised version of the bill addressing legal immigration into the United States, the Reforming American Immigration for a Strong Economy (RAISE) Act. It is supposed to spur economic growth and raise working Americans’ wages by giving priority to the best-skilled immigrants from around the world and reducing overall immigration by half.

Supporters include President Donald Trump, Attorney General Jeff Sessions, House Judiciary Committee Chairman Bob Goodlatte, andActing Secretary of Homeland Security Elaine Duke.

Nevertheless, it will not reach the president’s desk without support from influential Democratic congressmen, which will be difficult to get and won’t be free.
According to Representative Luis V. Gutierrez (D-Ill.), the RAISE Act “and the bear hug by the Bannon/Kelly/Trump White House — betrays the deep animosity towards legal immigration that has become the central, unifying tenet of the Republican Party.”

. . . .

Suggestions for a compromise.

The main price for Gutierrez’s support would be to establish a DREAM Act program that would be based on an appropriate merit-based point system.

The number of undocumented aliens who might benefit from a dream act can range from 2.5 to 3.3 million. It isn’t likely that an agreement will be reached if Gutierrez insists on a number in that range.

Concessions have to be made to achieve an acceptable compromise, and allowing termination of the Visa Waiver Program would be a reasonable choice. An alternative would be to keep the program as is but distribute the visas on a merit point system instead of using a lottery.

The refugee provision is problematic, but the president has sole authority to determine the number of admissions and the current president supports the 50,000 cap. The Democrats will try to eliminate this cap or raise it if they can’t eliminate it, but this should not be a deal breaker if the other issues are worked out satisfactorily.

The restrictions on family-based immigration, however, are another matter. They should be modified. Cotton and Purdue doomed their bill to failure with these provisions. They hurt constituents on both sides of the aisle.

Moreover, they do not make any sense. What does national interest mean if the family-unification needs of citizens and legal permanent residents don’t count?

Some advocates strongly opposes the point system because they think it fails to take into account the needs of U.S. businesses, but their concern is based on the point criterion in the current version of the RAISE Act, which has not been subjected to any hearings or markups yet. If the senators and Gutierrez cannot work out a compromise that protects the needs of U.S. businesses, there will be plenty of time to make additional changes.

This isn’t just about moving these bills through congress. According to recent Gallup polls, “Americans view Congress relatively poorly, with job approval ratings of the institution below 30% since October 2009.”

And the current Republican-controlled congress is not turning this around. Reaching an agreement with the Democrats on an immigration reform bill that includes a DREAM Act legalization program would be a good place to start.”

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

Go over to The Hill at the above link to read Nolan’s complete article.

PWS

08-13-17

JANET NAPOLATANO IN THE WASHPOST: SAVING “DREAMERS” SAVES US!

https://www.washingtonpost.com/opinions/protect-the-dreamers/2017/08/11/0f052264-7ead-11e7-9d08-b79f191668ed_story.html?utm_term=.ec88e1018129

“Five years ago this week, when I was secretary of Homeland Security, we began accepting the first Deferred Action for Childhood Arrivals (DACA) applications from “dreamers” who had been brought to this country without documentation when they were children. I will never forget that day: Tens of thousands of some of the best and brightest young people in our country applied to the program and celebrated their ability to live, work and learn in the only nation most of them had ever known.

Since that time, nearly 800,000 dreamers have gone through the rigorous application process and received DACA’s protections against deportation, including more than 100,000 who have had their applications renewed by the Trump administration.

Today, however, our nation’s dreamers face an uncertain future. Ten Republican state attorneys general are threatening to sue President Trump if he does not repeal DACA by Sept. 5. Worse, it seems unlikely that Attorney General Jeff Sessions will defend the program. During his Senate confirmation hearing, he said it “would certainly be constitutional” to eliminate DACA.

. . . .

Five years ago when DACA was established, I said, “Our nation’s immigration laws must be enforced in a firm and sensible manner, but they are not designed to be blindly enforced. Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language.” For the past five years, these young dreamers have proven that, when given the opportunity to contribute, they exceed expectations. It is time to unlock the full potential of these exceptional young people by making these protections permanent.”

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

The “War on America’s Youth” being conducted by state GOP Attorneys General, and basically being encouraged by our white Nationalist Attorney General Jeff Sessions, is unconscionable, not to mention dumb.

PWS

08-13-17

WASHPOST: TRUMP/SESSIONS/KELLY “GONZO” IMMIGRATION ENFORCEMENT DEPORTS THE “GOOD GUYS!” — WHY? — BECAUSE THEY CAN!

https://www.washingtonpost.com/opinions/the-trump-administration-is-deporting-a-lot-of-good-people/2017/08/12/42c6bb96-7eba-11e7-a669-b400c5c7e1cc_story.html?utm_term=.8d4182d7737e

“By Editorial Board August 12 at 2:12 PM

PRESIDENT TRUMP vowed to deport “bad hombres” — undocumented immigrants with criminal records whose presence in this country is an unquestioned burden and menace. Instead, his administration has been content to seize and expel a teenage soccer star and his brother in suburban Maryland; a mother of three in Michigan who had spent 20 years in the United States; and, now in detention pending removal, a 43-year-old janitor at MIT whose three small children are U.S. citizens and whose mother, a permanent resident, planned to sponsor him for a green card next year.

None of them had criminal records. Both the Michigan mother and the MIT janitor ran their own businesses, paying taxes and contributing to the economy. All had active, honorable lives deeply entwined with their communities. Deporting them is not only inhumane but also senseless.

So why do it? Possibly, Immigration and Customs Enforcement is simply plucking the low-hanging fruit that crosses agents’ path. Possibly, the agency is trying to please the boss in the Oval Office by juicing deportation numbers with the easiest targets of opportunity.”

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

Read the full editorial at the link.

Irrational enforcement against the most vulnerable makes weak leaders and bullies feel a false sense of strength, empowerment, and “being in charge.”

PWS

08-13-17

TRUMP’S “GONZO” ENFORCEMENT POLICIES PRODUCE MORE REMOVAL ORDERS BUT FEWER ACTUAL DEPORTATIONS! — CRIMINAL DEPORTATIONS FALL AS DHS PICKS ON NON-CRIMINALS! — MINDLESS ABUSE OF ALREADY OVERWHELMED IMMIGRATION COURT DOCKETS ACTUALLY INHIBITS ABILITY TO CONCENTRATE ON CRIMINALS!

Read this eye opener from Maria Sacchetti in the Washington Post about how the Administration manipulates data to leave a false impression of effective law enforcement.

https://www.washingtonpost.com/local/immigration/trump-is-deporting-fewer-immigrants-than-obama-including-criminals/2017/08/10/d8fa72e4-7e1d-11e7-9d08-b79f191668ed_story.html?hpid=hp_hp-more-top-stories_immigration-540am%3Ahomepage%2Fstory&utm_term=.a8889396e334

“By Maria Sacchetti August 10 at 9:43 PM
President Trump has vowed to swiftly deport “bad hombres” from the United States, but the latest deportation statistics show that slightly fewer criminals were expelled in June than when he took office.

In January, federal immigration officials deported 9,913 criminals. After a slight uptick under Trump, expulsions sank to 9,600 criminals in June.

Mostly deportations have remained lower than in past years under the Obama administration. From January to June, Immigration and Customs Enforcement deported 61,370 criminals, down from 70,603 during the same period last year.

During the election, Trump vowed to target criminals for deportation and warned that they were “going out fast.” Later, he suggested he would try to find a solution for the “terrific people” who never committed any crimes, and would first deport 2 million to 3 million criminals.

But analysts say he is unlikely to hit those targets. Since January, immigration officials have deported more than 105,000 immigrants, 42 percent of whom had never committed any crime.

Last year, a total of 121,170 people were deported during the same period, and a similar percentage had no criminal records.

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John Sandweg, the former acting director of Immigration and Customs Enforcement, said part of the reason for the decline is that illegal border crossings have plunged since Trump took office pledging to build a “big, beautiful” wall and crack down on illegal immigration. Immigrants caught at the border accounted for a significant share of deportations under the Obama administration.

Another factor, however, is that immigration officials are arresting more people who never committed any crime — some 4,100 immigrants in June, more than double the number in January — clogging the already backlogged immigration courts and making it harder to focus on criminals.

Immigration and Customs Enforcement released the deportation figures, which the Post had requested, late Thursday, two days after the Justice Department announced that immigration courts ordered 57,069 people to leave the United States from February to July, a nearly 31 percent increase over the previous year.

However, Justice officials have not said how many of the immigrants ordered deported were actually in custody — or if their whereabouts are even known. Every year scores of immigrants are ordered deported in absentia, meaning they did not attend their hearings and could not immediately be deported.

The deportation figures come as the Trump administration is fighting with dozens of state and local officials nationwide over their refusal to help deport immigrants, and as the administration is attempting to reduce legal and illegal immigration.”

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

It appears that many of the increased removal orders touted by DOJ/EOIR earlier this week might have been “in absentia” orders, issued without full due process hearings and all too often based on incorrect addresses or defective notices. Some of those orders turn out to be unenforceable. Many others require hearings to be reopened once the defects in notice or reasons for failure to appear are documented. But, since there wild inconsistencies among U.S. Immigration Judges in reopening in absentia cases, “jacking up” in absentia orders inevitably produces arbitrary justice.

The article also indicates that the Administration’s mindless overloading of already overwhelmed U.S. Immigration Courts with cases of non-criminal migrants has actually inhibited the courts’ ability to concentrate on criminals.

Taxpayer money is being squandered on “dumb” enforcement and a “captive court system” that no longer functions as a provider of fairness, due process, and justice. How long will legislators and Article III judges continue to be complicit in this facade of justice?

PWS

08-11-17

DEPORTATIONS RISE UNDER TRUMP, BUT BORDER CROSSINGS ALSO CONTINUE TO TICK UPWARDS! — Read My OpEssay: “Due Process Disaster Is Brewing In The U.S. Immigration Courts — Is Anybody Paying Attention?”

https://www.washingtonpost.com/local/immigration/deportation-orders-up-under-trump-fewer-prevail-in-immigration-court/2017/08/08/d3f0a6a6-7c74-11e7-9d08-b79f191668ed_story.html?utm_term=.848b8a83c250&wpisrc=nl_daily202&wpmm=1

Maria Sacchetti reports in the Washington Post:

“Federal immigration courts ordered 57,069 people to leave the United States in the first six months of the Trump administration, up nearly 31 percent over the same period last year, the Justice Department announced Tuesday.

Additionally, 16,058 people prevailed in their immigration cases, or had them closed, allowing them to stay in the United States, according to the data, which tallied orders issued from Feb. 1 to July 31. That total marked a 20.7 percent drop from the 20,255 immigrants who prevailed at the same time last year.

In a news release, the Justice Department said the notoriously backlogged court system is making a return to the “rule of law” under President Trump, who has vowed to speed deportations. But officials did not say how many of the orders were issued in absentia, meaning to immigrants who did not attend their hearings and therefore could not immediately be deported.

The Washington Post reported last week that thousands of immigrants, some seeking protection from violence in their homelands, have missed their court dates in recent years, often because they did not know about them or were afraid to show up. Advocates for immigrants have also raised concern about the lack of legal aid for immigrants, especially for those in immigration jails.

Last month, the president of the National Association of Immigration Judges said courts are severely understaffed, with about 300 immigration judges juggling a quickly rising caseload. An estimated 600,000 cases are pending nationwide.

United We Dream, an immigrant youth-led organization, protested ICE raids at Lafayette Square near the White House in February. (Linda Davidson/The Washington Post)

Unlike the traditional federal court system, which is independent of the executive branch of government, immigration courts are administered by the Justice Department.

That agency said that from Feb. 1 to July 31, judges issued 73,127 final immigration decisions, an increase of 14.5 percent over the same period in 2016.

Of those decisions, 49,983 were deportation orders, an increase of nearly 28 percent from the same period in 2016. The rest were orders to leave the United States voluntarily, a process by which immigrants generally face fewer barriers if they wish to apply to return to the United States in the future.

Federal officials attributed the increase in case completions to Trump’s Jan. 25 executive order dispatching more than 100 immigration judges to immigration jails across the country. More than 90 percent of cases heard in jails have led to orders to leave the United States. The department has also hired 54 new judges to work in immigration courts since Trump took office. More are being hired every month.

Dana Leigh Marks, an immigration judge based in San Francisco who heads the national association, wrote in Newsday last month that immigration courts should be separated from the Justice Department to ensure “judicial independence and protection from political influences.”

“More skilled court management, provided by experienced court administrators, rather than a law enforcement agency with priorities other than fairness and efficiency, would greatly enhance our ability to complete the tasks,” she wrote. “For example, cases would not be docketed to make political statements or serve as a show of force by the U.S. government.”

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Due Process Disaster Is Brewing In The U.S. Immigration Courts — Is Anybody Paying Attention?

by Paul Wickham Schmidt

U.S. Immigration Judge (Retired)

Meanwhile, according to CQ Roll Call, arrests of undocumented individuals at the Southern Border rose 13.1% in July, the second consecutive monthly increase. Overall, DHS’s CBP reports arresting more family units and fewer unaccompanied children during the first 10 months of FY 2017.

While CBP “fobs off” the increases as “seasonal,” they do cast some doubt on whether the Trump Administration’s “send ’em all back asap” enforcement approach is really going to decrease undocumented migration in the long run. It might simply be a case of professional human smuggling operations revising their methods and raising their prices to adjust to higher risk factors and the “market” taking time to adjust to the changing practices and price increases. Moreover, to date, neither increases in removal orders, some as noted by Horwitz undoubtedly “in absentia orders” issued without full due process protections, nor increases in the number of U.S. Immigration Judges has stopped the growth of the backlog of cases before the U.S. Immigration Courts, currently estimated at more than 610,000 pending cases!

Apparently, under the Trump/Sessions regime success in the U.S. Immigration Court System is no longer measured by improvements in due process and fairness or by insuring that the individuals coming before the court get the protections and relief to which they are entitled under the law. Nope! The “rule of law” in Immigration Court now appears synonymous with turning that Court System into a “deportation mill” — just another whistle stop on the “deportation express.”

In other words, we’ve now come “full circle” since 1983. Then, EOIR was created to get the Immigration Courts out of INS to enhance due process and overcome a public perception that the courts were merely functioning as adjuncts of INS enforcement. The U.S. Immigration Courts and EOIR essentially have been “recaptured” by DHS enforcement.

EOIR has once again become an insulated “inbred” agency. Judicial appointments are made by DOJ politicos almost exclusively from the ranks of government attorneys, primarily DHS and DOJ prosecutors, just like when the “Legacy INS” ran the courts. Dockets are out of control, management is haphazard, technology is outdated and inadequate, and clerical staffing shortages are chronic. Staffing and docketing priorities are designed to accommodate enforcement priorities and to maximize removals, rather than to promote due process and fairness. Training and attention to the real “rule of law” are afterthoughts. Public service is a dirty word.

Morale among those at EOIR who care about the due process judicial mission has been steadily declining even as already sky-high stress levels continue to ratchet up. Numbers and removals have replaced fairness, professionalism, and unbiased decision making as objectives.

There are rumors that the Immigration Courts are going to be taken out of the DOJ and “reintegrated” into DHS to reflect their “true function” as part of the deportation mechanism. I think it’s unlikely unless Sessions becomes the new Secretary of DHS. But, really, what difference would it make? Sessions basically “reassumed” the immigration enforcement functions that once were in the Attorney General’s portfolio but were sent over to DHS when it was created after 9-11. Kelly merely signed off and nodded agreement to what Sessions told him to do.

A move by the DOJ apparently is afoot to revamp the judicial “evaluation system” to rate Immigration Judges more like “lower level DOJ attorneys” rather than judicial officials exercising independent judgment. Such bureaucratic ratings systems often elevate “productivity” above quality, value “following agency priorities” over exercising independent judgment, and serve to give the politicos at the DOJ more control and leverage over the day to day functioning of what is supposed to be a judiciary free from political influence or intimidation. Moreover, such ratings are often prepared by “supervisory judges” many of whom hear no cases and most of whom have little daily contact with the Immigration Judges they nominally “supervise.” In a well-functioning judicial system, the local “Chief Judge” is a leader and problem solver, not a “supervisor” of her or his peers.

At this point, the Trump Administration clearly has no interest in fixing the festering problems in the U.S. Immigration Courts; they are determined to make things worse. While there is some bipartisan support in Congress for an independent Article I U.S. Immigration Court, to date it hasn’t coalesced into any specific, politically viable legislation.

That basically leaves it to the Article III Federal Courts to decide whether or not to fix the Immigration Courts. One possibility is that they will decide that it is too much: just forget due process for foreign nationals, rubber stamp the removal orders, stay above the fray, and become another “whistle stop on the deportation express.”

A more optimistic possibility is that they will draw the line on the due process nightmare in the U.S. Immigration Courts being promoted by the Administration. But, that will make the Article III Courts a major “track block” on the deportation express. The trains will derail and pile up on the doorstep, and the Article III Courts can count on little if any help or resources from Congress in untangling the mess and getting things back on track. Understandably, from a practical if not a legal point of view, some Article III Judges aren’t going to want to go there.

One thing is certain — things can’t continue they way they are going now. Something has got to give! And, when it does, the Article III Courts will be forced to do some self-examination and decide whether they are going to be part of the problem, or part of the solution. Are life-tenured Article III judgeships in essence about securing life sinecures, or about taking a perhaps unpopular and labor intensive stand for Constitutional Due Process for all, even the weakest and most vulnerable among us? We’ll soon find out!

PWS

08-09-17

TWO NEW ONES FROM CNN’S AMAZING TAL KOPAN: September May Bring Dark Clouds For Dreamers — Trump Administration Lags In Filling Top Spots!

Good morning! Happy recess.

Thought you might find a couple stories of mine that we published this morning interesting.

As always, all the best,

Tal

A storm is brewing for DACA this September

By: Tal Kopan, CNN

A suite of pressures on the policy that protects young undocumented immigrants is brewing — and it could mean the program soon either becomes permanent or disappears entirely.

Next month, the Trump administration faces both an ultimatum from challengers to the Deferred Action for Childhood Arrivals policy, or DACA, and a potentially nasty government funding fight that could require an 11th hour deal to avert a shutdown.

Last week, the administration’s biggest defender of DACA moved much closer to the President, who has also spoken about being sympathetic to DACA recipients. Gen. John Kelly is now the White House chief of staff, and as homeland security secretary, he spoke frequently about preserving the program under this administration.

But the move also takes him out of the department that was responsible for issuing permits under the Obama administration policy — and he recently warned Democrats on the Hill that the program’s prospects are dim.

When Congress wraps up its August recess, members will return to a consequential month — one in which they may be forced to act whether they want to or not.

The earliest trigger will be September 5. That’s the deadline in an ultimatum issued by Texas Attorney General Ken Paxton and nine other state attorneys general to the Trump administration: Rescind DACA or we will challenge it in an unfriendly court. They have already succeeded in stopping a similar program to protect the parents of childhood arrivals to the US.

Trump said the ultimate decision on what to do will be made by him.

“It’s a decision that I make and it’s a decision that’s very, very hard to make. I really understand the situation now,” Trump said in a conversation with reporters on Air Force One last month. “I understand the situation very well. What I’d like to do is a comprehensive immigration plan. But our country and political forces are not ready yet.”

Trump has spoken recently about having compassion for recipients of the policy, which protects undocumented immigrants brought to the US as children from deportation and allows them to work and study in the US. But he also pledged to end the program “immediately” on the campaign trail, and his base strongly opposes the Obama administration policy they call an “amnesty.”

That could make punting the issue to Congress an appealing solution for the administration.

“My assumption is that the cleanest thing they can do, though they’ll take the vast majority of the blame for ending the program, is simply announce come September 5 a sunset of the program, that they’ll stop approving applications, and then invite Congress to work on legislation,” said a Democratic congressional staffer familiar with the issue who spoke on condition of anonymity to be candid.

Story continues here http://www.cnn.com/2017/08/07/politics/daca-coming-storm/index.html

At 200-day mark, Trump nominations still lag

By: Tal Kopan, CNN

On President Donald Trump’s 200th day in office, he still lags far behind his predecessors in staffing up his administration, both in terms of nominations and confirming those positions.

Any new administration has to fill roughly 4,000 positions across the government, more than 1,200 of which require Senate confirmation. While no administration can accomplish that task in 200 days, the nonprofit good-government group Partnership for Public Service recommends having the most important 300-400 confirmed by August recess.

Trump hasn’t come close.

The President got a big boost to his progress last week when the Senate confirmed en masse more than five dozen outstanding nominees — roughly doubling the number of nominees Trump has had confirmed.

But he still remains far behind.

As of August 4, when the Senate left town for its August recess, Trump has nominated 277 people for key posts, has had 124 confirmed, and has withdrawn eight of the nominations, according to CNN’s tracker.

The Partnership for Public Service has identified 577 executive branch positions as being particularly essential — and Trump has only successfully filled about a fifth of them.

Meanwhile, his predecessor fared far better at the same point in their terms. President Barack Obama had 433 nominations and 310 confirmations at the same point, President George W. Bush had nominated 414 and had 294 confirmed, and President Bill Cilnton had 345 nominations and 252 confirmed.

Trump’s rate of 45% of nominees confirmed lags behind Obama’s 72%, Bush’s 71% and Clinton’s 73%. His nominees have also taken far longer to confirm — an average of 54 days compared with 41, 35 and 30 respectively.

The White House has consistently placed blame for its slow pace on Democrats — the minority party in the Senate — arguing they’ve employed stall tactics to slow-walk Trump’s confirmations.

Indeed, before the failure of the Senate to advance a plan to repeal Obamacare, Senate Democrats were forcing Republicans to go through all procedural steps for nominees, dragging out the process.

But part of the slowness has also been due to difficulty getting paperwork in for many of the nominees, and some announced nominations were not transmitted to the Senate for formal consideration for months. Trump also lags in naming officials amid reports that Cabinet officials and the White House have butted heads over potential candidates.

Trump has had his entire Cabinet confirmed, although when he selected John Kelly as his chief of staff late last month, he created a vacancy at the Department of Homeland Security. But experts say his slowness to fill deputy positions at agencies is equally important, as those officials handle much of the day-to-day management of government.

Partnership for Public Service President Max Stier, who has advised multiple presidents and presidential candidates, including Trump, on transitioning into office, said the President should be prioritizing filling positions if he wants to execute his agenda.

“While the pace of nominations for political appointees has picked up in recent weeks, critical leadership positions remain vacant at almost every agency and department,” Stier said. “The President must prioritize getting his full team in place. Doing so will strengthen his ability to run the government, achieve his priorities and deal effectively with the inevitable crises that will take place in our complicated and dangerous world.”

Story link here: http://www.cnn.com/2017/08/07/politics/trump-200-days-nominations/index.html

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

Thanks, Tal, for your incisive and timely reporting and for making it readily available to us.

PWS

08-07-17

N. RAPPAPORT IN THE HILL: DEMS’ DREAMER BILL OFFERS FALSE HOPE!

http://thehill.com/blogs/pundits-blog/immigration/345527-democrats-introduce-another-false-hope-act-to-immigrants

Nolan writes:

“Late last month, Congressman Luis Gutiérrez (D-Ill.), introduced the American Hope Act, H.R. 3591, with 116 co-sponsors, all Democrats.

The bill would provide conditional permanent resident status for undocumented aliens who were brought to the U.S. before their 18th birthday, which would permit them to live and work here legally for three years and put them on a path to Legal Permanent Resident status and citizenship.

Such bills are referred to as “DREAM Acts,” an acronym for “Development, Relief, and Education for Alien Minors Act.”

It might be more accurate, however, to call this bill “The False Hope Act.”

Bills to provide lawful status for undocumented aliens who were brought here as children have been pending in Congress since 2001, and we are yet to see one enacted legislatively, rather than by executive action. And this one was introduced by Democrats in a Republican-controlled Congress. Moreover, it is out of step with President Donald Trump’s policies on legal immigration.

. . . .

Why hasn’t a DREAM Act bill been enacted?

No one knows for sure. I think it is due mainly to the fact that the number of undocumented aliens who would benefit from such legislation could get quite large. Also, the fact that they are innocent of wrongdoing with respect to being here unlawfully does not make it in our national interest to let them stay. This is particularly problematic with respect to the American Hope Act. Section 4 of this bill includes a waiver that applies to some serious criminal exclusion grounds.

Although estimates for the number of undocumented aliens who could be impacted are not available yet for the American Hope Act, they are available for similar bills that were introduced this year, the Recognizing America’s Children Act, H.R. 1468, and the Dream Act of 2017, S. 1615.

The Migration Policy Institute estimates that potentially 2,504,000 aliens would be able to meet the minimum age at arrival and years of residence thresholds for the House bill and 3,338,000 for the Senate bill. However, some of them would need to complete educational requirements before they could apply.

Trump is supporting a revised version of the RAISE Act which would reduce the annual number of legal immigrants from one million to 500,000 over the next decade. It does not seem likely therefore that he will be receptive to a program that would make a very substantial increase in the number of legal immigrants.

Not merit-based.

The American Hope Act would treat all immigrant youth who were brought here as children the same, regardless of educational level, military service, or work history. Gutiérrez said in a press release, “We are not picking good immigrants versus bad immigrants or deserving versus undeserving, we are working to defend those who live among us and should have a place in our society.”

This is inconsistent with the skills-based point system in the revised version of the RAISE Act that Trump is supporting. It would prioritize immigrants who are most likely to succeed in the United States and expand the economy. Points would be based on factors such as education, English-language ability, age, and achievements.

Thus, Democrats’ American Hope Act as presently written is very likely to suffer the same fate as the other DREAM Acts.

Success requires a fresh, new approach, and the approach taken by the revised RAISE Act might work by basing eligibility on national interest instead of on a desire to help the immigrants. Certainly, it would be more likely to get Trump’s support.”

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

Read Nolan’s complete article over at The Hill on the above link.

I agree with Nolan insofar as any immigration bill sponsored by
Democrats at present is DOA. On the other hand, I doubt that the RAISE Act will pass either. There aren’t enough votes in the GOP caucus to pass any type of meaningful immigration reform without some help from the Democrats.

So, it doesn’t hurt for the Democrats to start laying down some specific “markers” for some future negotiations on immigration reform. Also, while it might not happen in my liftetime, history suggests that the Democrats are no more permanently “dead” as a party than the GOP was after the first Obama election and Democratic surge into power in the Executive and Legislative Branches.

The last time Democrats were in power, the Latino/Hispanic voters who had helped put them there were treated as largely non-existent. Indeed, the Obama Administration ran the U.S. Immigration Courts largely as if they were an extension of the Bush Administration, giving the advocacy community the cold shoulder, enacting zero reforms, and pitching a “near shutout” on outside appointments to the Immigration Court and the BIA over which they had total control.

The next time Democrats come into power, it would be wise of the groups that will help put them there to insist on the types of specific reforms and improvements that the Democrats are now articulating in “can’t pass” legislative proposals. And, in addition to doing something for Dreamers and other migrants who are contributing to our society, meaningful Immigration Court reform to remove it from Executive Branch control needs to be high on the list. Realistically, that’s probably going to require some bipartisan cooperation, participation, and support.

I also disagree with Nolan’s suggestion that it would not be in the national interest to let “Dreamers” stay. Of course, it would be strongly in our national interest to fully incorporate these fine young folks into our society so that they could achieve their full potential and we could get the full benefit of their talents, skills, and courage.

I had a steady stream of DACA applicants coming through my court in Arlington. Sure, some of them had problems, and DHS did a good job of weeding those folks out and/or revoking status if problems arose. But, the overwhelming majority were fine young people who either already were making significant contributions to our society or who were well positioned to do so in the future. Indeed, they were indistinguishable from their siblings and classsmates who had the good fortune to be born in the U.S., except perhaps that they often had to work a little harder and show a little more drive to overcome some of the inaccurate negative stereotypes about undocumented migrants and some of the disabilities imposed on them.

PWS

08-07-17

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