Legislation – Page 93 – immigrationcourtside.com

WashPost: Trump Actually Has A Strategy — It’s Ugly!

https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2017/06/06/daily-202-trump-signals-to-his-base-that-he-is-a-man-of-action/5935fccce9b69b2fb981dc64/?utm_term=.90d201c44030

James Hohmann writes in the PowerPost:

“THE BIG IDEA: Some have called him crazy. He thinks he’s crazy like a fox.

Let’s dispense once and for all with the fiction that Donald Trump doesn’t have a strategy. It may be a deeply-flawed strategy for reasons the neophyte president is not yet savvy enough to appreciate, but make no mistake: there is a strategy.

The conventional wisdom around Washington is that Trump is being impulsive as he disregards the counsel of his lawyers, who are correctly warning him that the travel ban may not survive a Supreme Court review if he continues to talk about it the way he does.

Yet the president has now explicitly called for a “TRAVEL BAN” five separate times on Twitter over the past four days. Undercutting the spin that he was just reacting to a morning cable segment he saw on TV before coming downstairs to work, his social media team posted a video on Facebook (an account he doesn’t personally control) that featured the tweets set to dramatic music.

He posted this at 9:20 p.m. last night:

If Trump truly cared about the underlying ban and wanted it to be in place for the country’s security, as he claims, he would not be speaking so freely. The billionaire businessman has been mired in litigation off and on for decades and has demonstrated an ability – when his own money was at stake – to be self-disciplined.

The only explanation, then, is that he cares less about winning the case than reassuring his base. The number of posts reflects the degree to which Trump thinks the travel ban is a political winner. He is trying to signal for his 24 million Facebook fans and 31.7 million Twitter followers that he’s fighting for them, regardless of what the judges, the media and the Democrats say. As Trump put it this morning:

— Bigger picture, the president is trying to maintain his populist street cred and show his true believers that he’s not going wobbly on them after five months in Washington, despite back-tracking on more of his campaign promises than he’s kept.

Trump has always been a flashy show horse. Why would anyone think a septuagenarian is suddenly going to buckle down to become a work horse? As a developer, biographers and former associates say, he consistently cared more about the gold-plated façade than the foundation. This is why Trump could obsess about how the lobbies of his properties looked, even as his business ventures careened toward bankruptcy under the weight of bad loans and poor bookkeeping. (Marc Fisher explored this dynamic in February.)

— With his agenda imperiled, Trump increasingly seems determined to create an aura of effectiveness in the hopes that core supporters already inclined to support him won’t be able to tell the difference between optics and substance. Remember, this is the same candidate who once boasted that he could shoot someone on Fifth Avenue and his voters would stick with him.

Consider this: “Trump employed all the trappings traditionally reserved for signing major bills into law as he kicked off ‘infrastructure week’ on Monday: the stately East Room full of dignitaries, a four-piece military band to serenade, celebratory handshakes and souvenir presidential pens for lawmakers, promises of ‘a great new era’ and a ‘revolution’ in technology. Yet the documents Trump signed amid all the pomp were not new laws or even an executive order. They were routine letters to Congress, relaying support for a minimally detailed plan in Trump’s budget to transfer control of the nation’s air traffic control system to a private nonprofit group,” the Los Angeles Times’s Noah Bierman reports.

But low-information voters may not be able to tell the difference when they see the b-roll of the ceremony on TV or an image in the paper.

It follows a pattern of Trump over-promising and under-delivering: “He touted the unveiling of his tax overhaul in April but released only a one-page set of bulleted talking points,” Noah writes. “Just last week, he tweeted that his tax bill is proceeding ‘ahead of schedule,’ though he has submitted no bill to Congress … Trump held a Rose Garden ceremony in May to celebrate House passage of a bill to repeal Obamacare … even as Republicans in the Senate served notice that the House bill was unacceptable. His promised ‘beautiful wall’ on the southern border is not yet on a drawing board. Likewise, many of the executive orders Trump has signed failed to live up to the president’s rhetoric.”

Bloomberg’s Toluse Olorunnipa noticed an amusing pattern and just posted a smart trend story about it: “From overhauling the tax code to releasing an infrastructure package to making decisions on NAFTA and the Paris climate agreement, Trump has a common refrain: A big announcement is coming in just ‘two weeks.’ It rarely does. … Trump’s habit of self-imposing — then missing — two-week deadlines for major announcements has become a staple of his administration … The president has used two-week timelines to sidestep questions from reporters or brag to CEOs at the White House. But his pronouncements have also flummoxed investors, Congress and occasionally even members of his staff.”

Is this strategy gimmicky and cynical? Absolutely. Does it work? For millions of people, yes.

Trump hands off a pen after signing a "decision memo" and a letter to members of Congress outlining broad principles of his plan to privatize the nation's air traffic control system. (Jabin Botsford/The Washington Post)</p>

Trump hands off a pen after signing a “decision memo” and a letter to members of Congress outlining broad principles of his plan to privatize the nation’s air traffic control system. (Jabin Botsford/The Washington Post)

— To be sure, Trump’s talent for showmanship has gotten him this far. He developed a valuable brand as a reality TV star and has leveraged his celebrity to get through rough patches before. He brought that skillset to the presidential race and assumes it will continue to work in Washington.

Indeed, White House officials defend Trump by arguing that he’s simply governing as he campaigned. “The president won an election by being somebody who is not a conformist candidate,” Marc Short, the White House director of legislative affairs, told reporters during a conference call last night. “He won by being somebody who the American people were anxious to change the culture in D.C. They understand that they were asking for disruption to the way D.C. operates. And I think that they’re anxious, the American people are anxious to see progress in this town. So he may not have conventional style in doing that, but many of his efforts are extremely helpful to, I think, getting our legislation accomplished.”

Short’s explanation offers a deeply revealing window into Trump’s theory of the case: All of the let-‘er-rip tweets in the wake of the attack on London Bridge have been focused on ginning up the GOP base. The president believes that, so long as grassroots activists back him, his adopted party’s lawmakers will have no choice but to follow. The fact that so many politicians have caved and capitulated over the past two years has taught him that he can get away with his unusual behavior. What the Republican governing class has never understood is that Trump doesn’t really respect people who kowtow to him; he sees it as a sign of their weakness. Seeing such timidity has only emboldened this president to pursue this bottom-up, outside-in approach. There is no evidence he will change until elected Republicans buck him en masse.

— Here’s the rub: There are some fresh signs that Trump’s act is wearing thin. While Trump’s floor of support has thus far stayed surprisingly high, the percentage of Americans who “strongly” approve of the president has continued to slip – from 30 percent earlier in the spring to about 20 percent now.

— More and more GOP lawmakers are also getting sick and tired of either defending the president or dodging questions about his latest provocative statement. “Trump’s refusal to disengage from the daily storm of news — coming ahead of former FBI director James B. Comey’s highly anticipated public testimony before the Senate Intelligence Committee on Thursday — is both unsurprising and unsettling to many Republicans (on the Hill), who are already skittish about the questions they may confront in the aftermath of the hearing,” Robert Costa reports on the front page of today’s Post. “In particular, they foresee Democratic accusations that Trump’s exchanges with Comey about the FBI probe into Russian meddling in the 2016 presidential campaign were an effort to obstruct justice. Some Republicans fear that Trump’s reactions will only worsen the potential damage.”

“It’s a distraction, and he needs to focus,” said former Trump campaign adviser Barry Bennett. “Every day and moment he spends on anything other than a rising economy is a waste that disrupts everything.”
“Unfortunately, the president has, I think, created problems for himself by his Twitter habit,” John Cornyn, the second highest-ranking Senate Republican, said with characteristic understatement during a Sunday interview on the Dallas TV station WFAA.
“We live in a world today where unfortunately a lot of communication is taking place with 140 characters. Probably it’s best to refrain from communicating with 140 characters on topics that are so important,” Bob Corker, chairman of the Senate Foreign Relations Committee, said one day after golfing with the president.

— Efforts to create a “war room” stocked with former campaign officials and top-flight lawyers have stalled.“Three people briefed on the matter said the process has been bogged down by a lack of decision-making in the West Wing over how to proceed, as well as reluctance from some of those the White House hoped to recruit about serving a president who keeps getting in his own way,” the AP’s Julie Pace reports. “The White House has made a conscious decision to avoid answering questions about the Russia probes, referring inquiries to Marc Kasowitz, the president’s outside counsel. Kasowitz has so far had no comment on the investigations, leaving those questions unanswered.”

“Anybody with press chops looks at this and they’re fearful there’s not a path to succeed,” said Sara Fagen, former White House political director for George W. Bush.

— Top lawyers with at least four major law firms rebuffed White House overtures to represent Trump in the Russia investigations, in part over concerns that the president would be unwilling to listen to their advice, Michael Isikoff reports for Yahoo News this morning. “Before Kasowitz was retained, however, some of the biggest law firms and their best known attorneys turned down overtures when they were sounded out by White House officials to see if they would be willing to represent the president.”

Jerry Moran leaves a closed-door GOP caucus luncheon at the Capitol. (J. Scott Applewhite/AP)</p>

Jerry Moran leaves a closed-door GOP caucus luncheon at the Capitol. (J. Scott Applewhite/AP)

— Trump wants to blame Democrats for blocking his agenda, but the truth is that he cannot even get 50 Republican senators onboard for his biggest priorities. Consider these two other quotes from yesterday:

Kansas Sen. Jerry Moran, a former NRSC chairman and one of the most reliable votes in the Republican conference, put out a stinging statement about Trump’s push to privatize the country’s air traffic control system: “Proposals to privatize air traffic control threaten the reliable transportation options provided by small airports and the general aviation community for millions of Americans. All but our largest airports nationwide stand to be hurt by this proposal. Privatization eliminates the chance for Congress and the American people to provide oversight, creates uncertainty in the marketplace and is likely to raise costs for consumers.”

On health care: “I just don’t think we can put it together among ourselves,” South Carolina Sen. Lindsey Graham told a gaggle of reporters, joining a growing chorus of Republicans who publicly and privately say that Obamacare repeal is unlikely to happen. (Last week, Richard Burr (R-N.C.) made a similar comment and Jeff Flake (R-Ariz.) said he doubted a bill could pass before the August recess.)

— “The most effective opponent of the Trump Presidency is Donald J. Trump,” the conservative Wall Street Journal editorial board opines this morning. “If Mr. Trump’s action is legal on the merits, he seems to be angry that his lawyers are trying to vindicate the rule of law. Attorney General Jeff Sessions would be justified if he resigned. … If this pattern continues, Mr. Trump may find himself running an Administration with no one but his family and the Breitbart staff. People of talent and integrity won’t work for a boss who undermines them in public without thinking about the consequences. And whatever happened to the buck stops here?”

— “The man is out of control,” Eugene Robinson writes in his column today. “I know his unorthodox use of social media is thought by some, including the president himself, to be brilliant. But I don’t see political genius in the invective coming from Trump these days. I see an angry man lashing out at enemies real and imagined — a man dangerously overwhelmed.”

— “The president has gone rogue,” adds Dana Milbank.“Though Trump’s ineffectiveness comes as a relief, his isolation is no cause for celebration. Whenever his back is to the wall, he becomes even more aggressive. The further he falls, and the more alienated he grows, the greater the danger that he will do something desperate — and there is much that a desperate commander in chief can do.”

Dana flags that an unnamed Trump confidant told CNN’s Gloria Borger last week that the president is a lost man:“He now lives within himself, which is a dangerous place for Donald Trump to be. I see him emotionally withdrawing. He’s gained weight. He doesn’t have anybody whom he trusts.”

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Pretty grim outlook for the President, for the country, and for the world. Elections have consequences. And, in this case they are as bad as it gets.

PWS

06-08-17

BREAKING: NPR’s Beth Fertig Exposes Administration’s Immigration Court Due Process Disaster — Taxpayers Billed For Sending Judges To Hustle Detainees Through Court Without Lawyers, Leaving More Represented Cases At Home To Rot! — Backlogs Mushroom As Administration Plays Games With Human Lives!

http://www.wnyc.org/story/missing-new-york-immigration-judges/

Fertig reports:

“In the middle of May, paper notices were posted on the walls of the federal building in lower Manhattan announcing the absence of several immigration judges. Some were out for a week or two, while others were away for six weeks. The flyers said their cases would be rescheduled.

The Executive Office for Immigration Review, which runs the immigration courts, would not comment on the judges’ whereabouts. It cited the confidentiality of personnel matters. But after WNYC asked about these missing judges, many of the paper notices were taken off the walls of the 12th and 14th floors, where hearings are held in small courtrooms.

It’s no secret that President Donald Trump’s administration has been redeploying judges to detention centers near the southern border to speed up the processing of cases. After contacting numerous immigration attorneys down south, as well as retired judges and others, WNYC was able to crowdsource the judges’ locations. At least eight of New York City’s 29 immigration judges had been sent to Texas and Louisiana since March to conduct hearings in person or by video. Six judges were out for different parts of the month of May, alone.

“NYC

The federal building is home to the nation’s busiest immigration court, with a backlog of 80,000 cases. By redeploying so many judges in such a short period of time, immigration lawyers fear the delays will grow even longer. Meanwhile, attorneys near the border question whether these extra judges are even necessary.

Among other matters, judges at detention courts are supposed to hear cases involving people who crossed the border illegally. Yet those numbers have declined since Trump took office. That’s why local attorneys are cynical about the surge.

“I don’t really think that they need all these judges,” said Ken Mayeaux, an immigration lawyer in Baton Rouge.

Mayeaux said what’s really needed there are more immigration attorneys. As federal agents arrest an increasing number of immigrants who are already in the U.S. without legal status, they’re sending them to southern detention centers that are pretty isolated. The ones in Oakdale and Jena, Louisiana, are hours west of Baton Rouge and New Orleans, where the vast majority of the state’s immigration advocates are concentrated, said Mayreaux.

“To ramp things up in one of the places that has the lowest representation rates in the United States, that’s a due process disaster,” he said.

Data from the Transactional Records Access Clearinghouse at Syracuse University confirms that immigrants may only wait a couple of months for their deportation case to be completed in these detention centers near the border. But in New York, the wait to see an immigration judge is 2.4 years.

So why move judges from a clogged and busy court system in New York to the border region, where immigration cases are already moving swiftly?

“In this particular instance, it’s a virtuous circle from the perspective of the administration,” explained Andrew Arthur, a former immigration judge.

Arthur is a resident fellow at the Center for Immigration Studies. It’s a think tank that wants to limit immigration, though it’s been branded a hate group by the Southern Poverty Law Center. During the Obama administration, Arthur said too many immigrants were let out of detention and waited years for their cases to be heard. He said moving more judges to the border will prevent that from happening.

“Because the quicker that you hear the cases the less likely that an individual is to be released,” Arthur said. “Therefore the less likely another group of individuals are to attempt to make the journey to the United States.”

Another former immigration judge, Paul Wickham Schmidt, said the Obama administration tried something similar by fast-tracking the cases of Central American migrants in 2014. But he said it wound up scrambling the judges’ dockets and was counterproductive. He was redeployed from his home court in Virginia and estimates he had to reschedule a hundred cases in a week.

“Nobody cares what’s happening on the home docket,” he said. “It’s all about showing presence on the border.”

Not all judges assigned to the border are physically present. Mana Yegani, an immigration lawyer in Houston, said she’s seen several judges — including a few from New York — at a detention center where cases are done by video teleconference.

“We never see the prosecutor’s face, it’s just a voice in the background,” she explained. “It’s just not a fair process for our clients and I don’t think the judges can be efficient the way they’re supposed to. They take an oath to be fair and to uphold the Constitution and due process, and I think the way the system is set up it really hinders that.”

A new audit of the immigration courts by the Government Accountability Office questioned whether video teleconferences have an impact on outcomes and said more data should be collected.

Some attorneys believe the reassignments are temporary to see if border crossings continue to ebb. The Executive Officer for Immigration Review won’t comment on that, but spokesman John Martin said the agency will hire 50 new judges and “plans to continue to advertise and fill positions nationwide for immigration judges and supporting staff.”

In the meantime, there’s no question that shifting judges away from New York is having an impact on real people.”

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Read Beth’s entire article, including the story of one “real” asylum applicant waiting patiently for a hearing that almost didn’t happen.

The due process farce continues, at taxpayer expense, while the U.S. Immigration Courts are being treated as an enforcement arm of the DHS. Aimless Docket Reshuffling (“ADR”) denies due process at both the “sending courts” and “receiving courts.” When, if ever, will Congress or the Federal Courts step in and put an end to this travesty of justice and mockery of our constitutional requirement for due process! In the meantime, what’s happening in the Immigration Courts is a continuing national disgrace.

PWS

06-06-17

“IMMIGRATION COURTS — RECLAIMING THE VISION” — Read My Article In The Latest Federal Bar News!

Here is the link:

immigration courts

And, here’s an excerpt:

“Our immigration courts are going through an existential crisis that threatens the very foundations of our American justice system. I have often spoken about my dismay that the noble due process vision of our immigration courts has been derailed. What can be done to get it back on track?

First, and foremost, the immigration courts must return to the focus on due process as the one and only mission. The improper use of our due process court system by political officials to advance enforcement priorities and/or send “don’t come” messages to asylum seekers, which are highly ineffective in any event, must end. That’s unlikely to happen under the Department of Justice—as proved by over three decades of history, particularly recent history. It will take some type of independent court. I think that an Article I Immigration Court, which has been supported by groups such as the American Bar Association and the Federal Bar Association, would be best.

Clearly, the due process focus has been lost when officials outside the Executive Office for Immigration Review have forced ill-advised “prioritization” and attempts to “expedite” the cases of frightened women and children from the Northern Triangle (the Central American countries of El Salvador, Honduras, and Guatemala) who require lawyers to gain the protection that most of them need and deserve. Putting these cases in front of other pending cases is not only unfair to all, but has created what I call “aimless docket reshuffling” that has thrown our system into chaos.

Evidently, the idea of the prioritization was to remove most of those recently crossing the border to seek protection, thereby sending a “don’t come, we don’t want you” message to asylum seekers. But, as a deterrent, this program has been spectacularly unsuccessful. Not surprisingly to me, individuals fleeing for their lives from the Northern Triangle have continued to seek refuge in the United States in large numbers. Immigration court backlogs have continued to grow across the board, notwithstanding an actual reduction in overall case receipts and an increase in the number of authorized immigration judges.”

I encourage you to read the entire article.

Additionally, this entire issue of The Federal Lawyer is devoted to Immigration Law. Kudos to Judge Lawrence O. Burman of the Arlington Immigration Court and Judge Robin Feder of the Boston Immigration court for their key roles in FBA leadership and for inspiring this effort. There are four other great articles that will help you understand what is happening today in this most important area. Check them all out at this link:

http://www.fedbar.org/magazine.html

Finally, if you aren’t currently a member of the Federal Bar Association (“FBA”), please join the FBA and the Immigration Section today! The price is very reasonable, you get access to The Green Card (the Immigration Section newsletter, Edited by Judge Burman) and some other great educational materials, and you support the effort for due process, collegiality, and badly needed U.S. Immigration Court Reform, which the FBA advocates. The current “powers that be” are not going to fix the broken U.S. Immigration Court System without outside involvement and, ultimately, Congressional action. This won’t happen by itself. So, if like me, you are appalled and dismayed by what has happened to due process in our U.S. Immigration Court system, now is the time to get involved and work to change it!

Also, check out my previous blogs on the recent FBA Immigration Seminar in Denver.

http://wp.me/p8eeJm-O1

http://wp.me/p8eeJm-Oa

http://wp.me/p8eeJm-OU

http://wp.me/p8eeJm-P4

PWS

06-05-17

“AIMLESS DOCKET RESHUFFLING” (“ADR”) IN NEW YORK — NPR’s Beth Fertig Exposes Due Process/Management Abuses By Obama & Trump Administrations!

http://www.wnyc.org/story/why-new-yorks-immigration-court-even-busier-fewer-judges-under-trump/

Fertig reports:

“There are 29 immigration judges assigned to court rooms in the Federal Building in Lower Manhattan. But as the number of pending cases grew from about 70,000 in January to nearly 80,000 this spring, more and more people have been coming to court only to discover they don’t have judges.

On a Tuesday morning in May, Alin Guifarro expected to attend a hearing with his 18-year-old son, Jose David Rodriguez. The teen came from Honduras last year to join his father and is trying to get legal status in the U.S.

But when they went to the 12th floor and scanned the long list of names with appearances scheduled that day, Guifarro saw his son’s case wasn’t assigned to a judge. Confused, he went to the clerk’s office and was told he would eventually get a letter in the mail about a new court date.

Guifarro was frustrated. “I came over here driving 2 ½ hours for nothing,” he said, referring to his journey from his home in Mastic, Long Island.

This father and son aren’t the only ones whose immigration cases have been postponed lately.

“In the last two months this has happened every week,” said Bryan Johnson, an immigration lawyer based on Long Island. Many of his clients are seeking asylum, and he said some have already been waiting a couple of years. With extra delays, he said, “if they have children who are abroad, that will delay family unification or spousal unification if their spouse is abroad.”

On a single day in May, when almost 400 hearings were scheduled to take place in immigration court, WNYC counted 60 people who didn’t have judges.

The Executive Office for Immigration Review runs the nation’s immigration courts. It says staffers typically mail a notice if a judge is out or a case is delayed, but they don’t always go out in time. As for why people are coming to court without judges, the agency explained that they are technically assigned to ”visiting judges.” But it acknowledged these judges don’t actually exist.

“The concept of ‘visiting judges’ is for internal case management,” said E.O.I.R. spokesman John Martin. “When judges retire, or temporarily stop hearing cases due to illness, the New York City Immigration Court will assign these dockets to a ‘visiting judge’ in order to maintain continuity of these cases. As new immigration judges are hired and officially placed at their respective immigration court locations, these ‘visiting judge’ dockets in those locations are reassigned to them.”

Even after a recent hire, New York City has only 29 immigration judges, compared to 31 at this time last year.

The backlog in immigration courts isn’t new. There are almost 600,000 pending cases, nationally. The problem started well before President Donald Trump took office.”

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Read Beth’s complete article at the link.

A recent GAO report highlighted and quantified endemic management issues with the DOJ’s stewardship over the U.S. Immigration Courts, particularly in hiring new Immigration Judges which takes an astounding average of 742 days. http://wp.me/p8eeJm-Uh

Then, there are the retirements. It’s hardly rocket science that an aging workforce in high-stress jobs might retire in large numbers. I ran “Immigration Judge retirements” into my search engine and got 9 articles, right off the bat. Try it yourself.

Additionally, there is the practice of both Administrations of mindlessly jamming more new cases in the front of the system without a rational plan for completing the ones already in it. That’s followed by reassigning Immigration Judges (like they were assembly line workers) from existing dockets of cases scheduled for final hearings to new dockets of Not Quite Ready For Prime Time (“NQRFPT”) cases. And to cap it off, Secretary Kelly, egged on by Jeff Sessions, has told DHS agents to arrest anyone the feel like arresting without any regard for reasonable priorities or space on already overcrowded court dockets!

And, while we’re at it, let’s stuff more non-criminals into dangerous, expensive, and unneeded immigration detention, thereby turning them into self-created emergency situations, rather than thinking creatively about cheaper, more humane, and more effective methods of getting non-dangerous folks through the system in a reasonable manner.

And you gotta love imaginary “visiting judges.” Visiting from where, “The Twilight Zone?” Almost as good as “warehousing” tens of thousands of cases on a single day in November 2019. No wonder that once in extreme frustration I referred to this administrative morass as “Clown Court!”🤡

No, it’s not all the fault of EOIR bureaucrats, most of whom mean well and are simply caught up in a “built for failure” system. But, it is the fault of the DOJ whose politicized management of the Immigration Courts has been a disaster since the beginning of this century. And, even if you removed politics from the equation, the DOJ obviously lacks the basic administrative competence to run a complicated, high volume court system. Ultimately, Congress must assume the responsibility for allowing this travesty to continue to exist. An independent Immigration Court outside the Executive Branch is long overdue.

But, other than that, it’s a great system!

Stay tuned! Tomorrow, Beth will tell us what judges pulled off their existing dockets find when they get to their “detail courts.” I can’t wait to hear what she found out!

PWS

06-05-17

H-1B NONIMMIGRANTS: A Needed Visa In Need Of Reform — It’s Essential For Our Economy, But It’s Wrong When US Workers Are Displaced & Degraded — A Plea For Reform By One Who Has Benefitted From The System But Sees The Abuses!

http://www.cnn.com/2017/06/04/us/understanding-the-h-1b-visa/index.html

Moni Bassu writes in CNN:

“Palmer and other H-1B reformers want accountability.

They say US companies must be required to document their searches to fill positions with American workers. Employers must pay prevailing wages and be prevented from subcontracting or outsourcing H-1B jobs.

Reform advocates are pushing for a system of government enforcement and oversight of the H-1B regulations, not one that is reliant on whistleblowers to expose abuse.

Technology is here to stay. And it is changing at warp speed. The demand for smart talent is not going away. That’s why even the biggest critics of H-1B are the most ardent backers of reform, not elimination.

What I hear them saying is the system ought to work the way it used to, when my father obtained an H-1 visa. He was hired for a job he was uniquely qualified for, and he was compensated with a decent wage.

No one wants to see Americans lose their jobs unfairly, and if my father were still alive, I know he’d be troubled by what I learned about the current H-1B program.

I also know he would be heartened to see that some of the most ardent backers of visa reform are Indian Americans. After all, we are the ones who have most reaped the rewards of H-1B.”

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The full article, which gives actual examples of both the benefits and the abuses of the H-1B program is a “must read.” Get it at the link.

Several thoughts. I was very critical, and still am, of House Immigration Subcommittee GOP Members for starting off with controversial, “in your face,” and unneeded enforcement-only bills. See http://wp.me/p8eeJm-Qw

Why not instead start with something bipartisan that would be good for America, like H-1B reform. Chairman Grassley in the Senate has expressed strong interest in reforming the H-1B category to eliminate abuses. And, it appears that most major U.S. employers who use H-1Bs also see the need for reform to preserve and improve the program.

Additionally, things like investment visa “EB-5” reform also appear likely to attract support from both sides of the aisle in both houses.

A second thought, why don’t U.S. companies, particularly those started or run by immigrants, which use H-1Bs start the reforms now. “Reverse” the process. Use highly talented H-1B workers to train U.S. workers, particularly in places where the economic rebound has not yet reached, for whatever reason.

For example, in a recent blog dealt with the situation in the small city of Gillette, WY. http://wp.me/p8eeJm-UY The folks seemed nice, optimistic, and interested in a brighter future for their community. But, with or without Trump and his environment-busting policies, coal mining as a way of life is on the way out. I can’t imagine that too many of the younger generation are hanging around places like Gillette.

Why not go in and establish some tech centers using H-1Bs as trainers. Sure, working on a computer in an office isn’t everyone’s cup of tea. I get that. But, it is something that can be done from anywhere.

And, the costs of doing business, at least initially, are likely to be less in a place like Gillette. Increased economic activity brings with it other needs: buildings, houses, markets, auto dealers, repair shops, HVAC technicians, public servants, schools, teachers, etc. So, there could be something for everyone, even those who don’t want to work at a desk all day.

Maybe, it’s time for those who want immigration reform to stop talking and whining and start doing. Things that demonstrably work and help folks out build their own bases of support. That’s better than trying to convince folks with statistics and pie charts!

PWS

06-05-17

Led By Justice Thomas, Unanimous Supremes Reject USG’s Attempt To Deport Mexican Man For Consensual Sex With A Minor — “Strict Interpretation” Carries The Day!

Here is then full text of the opinion in Esquivel-Quintana v. Sessions:

https://www.supremecourt.gov/opinions/16pdf/16-54_5i26.pdf

Here’s a key excerpt from Justice Thomas’s opinion:

“Relying on a different dictionary (and “sparse” legislative history), the Government suggests an alternative “‘everyday understanding’” of “sexual abuse of a minor.” Brief for Respondent 16–17 (citing Black’s Law Dictionary 1375 (6th ed. 1990)). Around the time sexual abuse of a minor was added to the INA’s list of aggravated felonies, that dictionary defined “[s]exual abuse” as “[i]llegal sex acts performed against a minor by a parent, guardian, relative, or acquaintance,” and defined “[m]inor” as “[a]n infant or person who is under the age of legal competence,” which in “most states” was “18.” Id., at 997, 1375. “‘Sex- ual abuse of a minor,’” the Government accordingly contends, “most naturally connotes conduct that (1) is illegal, (2) involves sexual activity, and (3) is directed at a person younger than 18 years old.” Brief for Respondent 17.

We are not persuaded that the generic federal offense corresponds to the Government’s definition. First, the Government’s proposed definition is flatly inconsistent with the definition of sexual abuse contained in the very dictionary on which it relies; the Government’s proposed definition does not require that the act be performed “by a parent, guardian, relative, or acquaintance.” Black’s Law Dictionary 1375 (6th ed. 1990) (emphasis added). In any event, as we explain below, offenses predicated on a special relationship of trust between the victim and offender are not at issue here and frequently have a different age requirement than the general age of consent. Second, in the context of statutory rape, the prepositional phrase “of a minor” naturally refers not to the age of legal competence (when a person is legally capable of agreeing to a contract, for example), but to the age of consent (when a person is legally capable of agreeing to sexual intercourse).

Third, the Government’s definition turns the categorical approach on its head by defining the generic federal offense of sexual abuse of a minor as whatever is illegal under the particular law of the State where the defendant was convicted. Under the Government’s preferred ap- proach, there is no “generic” definition at all. See Taylor, 495 U. S., at 591 (requiring “a clear indication that . . . Congress intended to abandon its general approach of using uniform categorical definitions to identify predicate offenses”); id., at 592 (“We think that ‘burglary’ in §924(e) must have some uniform definition independent of the labels employed by the various States’ criminal codes”).

The structure of the INA, a related federal statute, and evidence from state criminal codes confirm that, for a statutory rape offense to qualify as sexual abuse of a minor under the INA based solely on the age of the participants, the victim must be younger than 16.”

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Notwithstanding a supposedly “conservative” Court, going back several Administrations the USG has been losing on a surprisingly regular basis in its attempts to take the most extreme and inclusive interpretations of various already very harsh deportation provisions. And, “strict constructionists” like Justice Thomas and the late Justice Scalia have sometimes had just as much problem with the Government’s overreach as have supposedly more liberal or “middle of the road” justices. That’s why I’m not convinced that Justice Gorsuch (who did not participate in this case) will be as much of a “Government ringer” as some believe, at least in immigration matters.

Despite a number of notable setbacks at the Court, DHS, DOJ, and the BIA all seem to be rather “tone deaf” to the Court’s message. The Executive Branch continues to take the most extreme anti-immigrant positions even where, as in this case, it requires ignoring the “unambiguous” statutory language.

Given the “maximo enforcement” posture of the Trump Administration, there is little reason to believe that the Executive Branch will “get” the Court’s message about more reasonable interpretations of deportation statutes. Hopefully, the Court will continue to stand up against such abuses of Executive authority.

PWS

05-31-17

9th Circuit’s Judge Reinhardt Blasts Trump Enforcement Policies As Diminishing Judges’ “Dignity And Humanity!”

Magana Ortiz–Reinhardt

In a published concurring opinion from the denial of a stay of removal, Judge Reinhardt write, in part:

“We are unable to prevent Magana Ortiz’s removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government’s decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.”

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Judge Reinhardt is a well-know liberal jurist, so perhaps his candid remarks come as no surprise. Read his full opinion which gives the facts of Magana Ortiz’s situation.

During most of my career at Arlington, I felt that everyone in the courtroom had worked hard to reach the fairest and best possible result under the law. Basically, whenever we could legitimately save someone’s life in accordance with the law, we did. During my tenure, I received tremendous cooperation and support not only from the private immigration bar but also from the DHS Office of Chief Counsel, which often could help achieve reasonable solutions that would have been outside of my reach. But, sadly, from feedback I am getting, that spirit of teamwork and cooperation in achieving justice seems to have disappeared under the new regime.

Even in Arlington, however, there were a few days when I felt like Judge Reinhardt. I was entering orders of removal against folks who, while not legally entitled to remain, were actually assets to our country. In other words, by enforcing the law, I was actually making things worse, not only for the individual, but for his or her family, their community, and the overall interests of our country.

This has become particularly true as successive administrations have filled U.S. Immigration Court dockets with cases that there is no hope of completing in a timeframe that would produce a fair result. Yet, the cases, and the lives involved in them, linger and are passed from docket to docket, from court to court, from date to date, as one misguided set of “priorities” replaces another one in a system where political operatives ultimately pull all the strings.

This is what I call “Aimless Docket Reshuffling;” and it is close to bringing down the entire U.S. Immigration Court system, and a large chunk of the American justice system with it.

PWS

05-30-17

POLITICS: David Leonhardt In The NYT: Don’t Get Distracted From GOP’s Dishonesty & Cruelty!

“David Leonhardt
Op-Ed Columnist
The Congressional Budget Office’s analysis of the House health care bill is a devastating indictment.
The report, released yesterday, showed that millions of Americans would lose health insurance and the quality of insurance for millions more would deteriorate. The savings from that carnage — to borrow a favorite word of President Trump’s — would pay for tax cuts for the wealthy.
And yet the immediate reaction to the C.B.O. report also shows why you should be worried that the Senate will nonetheless decide to pass a version of the House bill.
Here’s what I mean: Much of this initial reaction has missed the point. It has focused on the modest differences between the new C.B.O. report, which analyzed the final House bill, and a C.B.O. analysis from March of an earlier version of the bill. Among the differences, the final bill would deprive an estimated 23 million people of insurance, compared with the 24 million in the March analysis.
Don’t be distracted by these small differences.
Distraction is a tactic of the politicians who are trying to take away health insurance from people. These politicians can’t sell their proposals on the merits. That’s why both the House and, thus far, the Senate have refused to hold any hearings. They know that virtually every expert across the ideological spectrum — including groups representing doctors, nurses, hospitals, patients and senior citizens — opposes the bill.
Unable to win a debate on its merits, Republican leaders need to change the subject. They can’t let their proposals be judged on whether they improve the American health care system, because they don’t. They need to create a lower standard by which the plan will be judged.
The House did so in the frantic week that it passed its bill by pointing to a last-minute amendment that made a superficial improvement. House members then claimed they had fixed their bill.
Senate leaders are showing signs of following the same path — and the C.B.O. report gives them a chance to start down it. The report will encourage top Republicans to claim that their bill is already getting better and that the Senate will keep improving it in coming months.
In truth, the bill is fatally flawed. Its objective is to reduce federal spending on health insurance for the middle class, poor, sick, elderly and disabled in order to cut taxes for the wealthy. Maybe the final version, once the Senate has made its tweaks, will take insurance from 23 million people, or maybe 15 million people. But any law based on the House bill is guaranteed to worsen the health care system.
That’s the overwhelming message of the C.B.O. report.
The saddest part of this situation is that our health care system, including Obamacare, very much needs improvement. And there are solid bipartisan ideas out there, including some that would increase states’ flexibility or lower consumer expenses. The Senate has members from both parties with the savvy and the policy chops — like Lamar Alexander and Patty Murray — to turn those ideas into a bill.
Is it too much to hope that they cast aside the distractions from the House’s failed plan and start fresh?
The full Opinion report from The Times follows, including Abbe Gluck on the G.O.P.’s sabotage of Obamacare.”

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POLITICS: GOP Senate’s “Stealth Plan” To Strip Health Care From Millions While Enriching Fat Cats Exposed!

https://www.nytimes.com/2017/05/23/opinion/health-care-bill-senate.html?emc=edit_ty_20170523&nl=opinion-today&nlid=79213886&te=1&_r=0

David Leonhardt writes in a NY Times op-ed:

“While the rest of the country has been transfixed by Trumpian chaos, members of the Senate have spent the last two weeks talking about taking health insurance from millions of Americans.

There is an alarmingly large chance that they’ll decide to do so. But if they do, they will almost certainly rely on a political sleight of hand to disguise their bill’s damage. Understanding that sleight of hand — and calling attention to it — offers the best hope for defeating the bill.

The effort to take health insurance from the middle class and poor and funnel the savings into tax cuts for the rich is a little like mold. It grows best in the dark.

That’s why Republican leaders in the House handled their bill as they did. They did not hold a single hearing, because they knew that attention would have been devastating.

Just imagine a hearing featuring the leaders of these groups, every one of which opposes the House bill: the American Medical Association, American Nurses Association, American Hospital Association, American Academy of Pediatrics, American Cancer Society, American Heart Association, American Diabetes Association, American Lung Association, March of Dimes and AARP.
The House also passed its final bill without waiting for the Congressional Budget Office to estimate how many Americans would lose insurance. The C.B.O. will release that analysis tomorrow afternoon. There is no precedent, outside of wartime, for passing a bill this important in such haste.

After the House did, many observers assumed the bill was too flawed to have much chance in the Senate. Republican senators, aware of the bill’s unpopularity, were careful to say publicly that they would start fresh. But the early signs suggest that Mitch McConnell and his Republican caucus are actually mimicking the House approach.

Think of it as the Upton strategy, and I’ll explain the name in a minute.”

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

Yet, the voters keep putting these guys in office. Unless you are part of the tiny percentage of over-privileged, rich elite in America, you’re voting against not only our country’s best interests, but your own!

Amazingly, however, the Democrats have failed to come up with an effective strategy to capitalize on this. And, to date, I’m not sure I’ve heard any compelling arguments as to how and why Democrats will do better in the next election.

Yeah, Trump and his cohorts have problems galore. But, highlighting/relying on that was Hillary’s primary strategy in 2016. And, it failed! Big time! What positive plan do Democrats have for making America better for everyone (including most Trump supporters)?

PWS

05-23-17

Critics Blast Tex. Gov. Abbott’s Statements On Sanctuary Cities!

https://www.texasobserver.org/two-blatant-lies-governor-greg-abbotts-sanctuary-cities-op-ed/

Gus Bova writes in the Texas Observer:

“Governor Greg Abbott published an editorial in the San Antonio Express-News Friday defending Senate Bill 4 — the anti-“sanctuary cities” law that critics say will encourage racial profiling, undermine local policing efforts and tear immigrant families apart.

In the piece, titled “SB 4 will make Texas communities safer,” Abbott spreads at least two major lies: One, that only criminals need to worry about being asked for their papers under SB 4, and two, that the bill only requires jails to honor immigration detainers when a person is charged with a violent crime.

Abbott, who made “sanctuary cities” a legislative emergency this session, did not immediately respond to a request for comment.

The governor writes: “Regardless of your immigration status, if you have not committed a crime and you are not subject to an Immigration and Customs Enforcement [ICE] detainer, you have nothing to fear about the change in Texas law.”

That isn’t true. Thanks to a hotly contested amendment, the bill specifically permits police to request proof of citizenship from someone who’s merely been detained, not arrested. Put simply, being stopped by a cop does not mean you’ve committed a crime. Abbott seems to have forgotten about “innocent until proven guilty.”

Second, Abbott writes: “SB 4 requires law enforcement agencies to honor ICE detainers issued for violent criminals.”

In fact, the law requires jails to honor all ICE detainers. Detainers are voluntary requests from ICE to local jails to keep someone locked up beyond when they would normally be released, so that federal agents may arrive and potentially deport them.”

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Thanks to Dan Kowalski over at LexisNexis for forwarding this item!

PWS

05-23-17

N. Rappaport On GOP’s “Extreme Enforcement” Initiatives!

http://thehill.com/blogs/pundits-blog/immigration/334554-republicans-are-preparing-extreme-immigration-measures

Nolan writes in The Hill:

“Highlights from Labrador’s summary of the Davis-Oliver Act.

It provides states with congressional authorization to enact and enforce their own immigration laws to end the executive branch’s ability to unilaterally shut down immigration enforcement.
It withholds certain federal grants from jurisdictions that refuse to honor immigration detainers or prohibit their law enforcement officers from giving immigration-related information to U.S. Immigration and Customs Enforcement (ICE).
Jurisdictions that refuse to honor detainer requests and release criminal aliens may be sued by the victims of crimes the aliens commit after they are released.
It makes membership in a criminal gang grounds for deportation.
It requires background checks to be completed before immigration benefits can be granted.
Criminalization of undocumented aliens.

Section 314 makes crimes out of illegal entry and unlawful presence. If an offender does not have three misdemeanor convictions or a felony conviction, a first offense can result in imprisonment for up to six months. Subsequent offenses can result in imprisonment for up to two years.

If the alien has three misdemeanor convictions or a felony conviction, however, the term of imprisonment can be up to 20 years. This is not as harsh as some of the criminal provisions which are in the Immigration and Nationality Act (INA) already. Smuggling an alien into the country or helping one to remain here unlawfully (harboring) may “be punished by death or imprisoned for any term of years or for life” if it results in the death of any person.

Home free magnet.

President Obama created what I call the “home free magnet”, when he focused enforcement on undocumented aliens who had been convicted of serious crimes or had been caught near the border after making an illegal entry. Aliens wanting to enter the United States illegally knew that they would be safe from deportation once they had reached the interior of the country.

This attracted undocumented aliens and became a powerful incentive for them to do whatever was necessary to enter the United States. President Trump destroyed this magnet with tough campaign rhetoric and his executive order, Enhancing Public Safety in the Interior of the United States, which greatly expands Obama’s enforcement priorities.

. . . .

Perhaps the Democrats should consider supporting a modified version of the Davis-Oliver Act in return for Republican consideration of a modified legalization program and other measures that are important to the Democrats.

A similar agreement was the basis for the Immigration Reform and Control Act of 1986 (IRCA), which made legalization available to millions of undocumented aliens in return for interior enforcement measures and border security.

The Republicans can deport most of the undocumented aliens in the country if they choose to do so, but it would take a long time and would be very expensive politically as well as financially.

They might be willing to consider a legalization program that is based on American needs, such as preventing citizen and lawful permanent resident families from being broken up and providing needed foreign workers for American employers.”

It could be limited to temporary lawful status while background investigations are being conducted. Greg Siskind and I suggested a way to do this in, “Pre-Registration: A Proposal to Kick-Start CIR.”

To be truly comprehensive, immigration reform has to include effective enforcement measures and time for putting together such a bill is running out.

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

Having served during the Obama Administration (as well as others from both parties) I disagree with Nolan’s characterization of Obama as having a “home free” policy. At least since the summer of 2014, no characterization could be further from the truth!

Beginning in the summer of 2014, the Obama Administrations, quite unwisely in my view, “prioritized” the cases of recent arrivals at the Southern Border. By taking these cases out of sequence, and totally out of proportion to any “threat” they posed, the Obama Administration’s policy of Aimless Docket Reshuffling (“ADR”) helped create an Immigration Court backlog that now approaches 600,000 cases, notwithstanding relatively “flat” receipts and actual increases in the number of sitting judges.

While eliminating the “recent arrivals priority,” the Trump Administration’s essentially “random” enforcement policy, lacking in any type of restraint or rationality, has actually made things much worse. As backlogs mushroom, the “home free” problem is actually more significant, although with a pronounced degree of randomness and irrationally. In other words, total docket chaos in Immigration Court.

While the threat of more “expedited removals,” which evade the Immigration Courts, does hang over the system, the procedures have not actually been implemented. Moreover, contrary to Nolan’s suggestion, there is no chance that the GOP will be able to remove more than a small fraction of the approximately 11 million undocumented aliens in the U.S. Yes, arbitrary enforcement does produce some “terrorism” effect by making everyone feel unsafe. Perhaps a relatively small number of undocumented residents will give up and leave (or try to enter Canada). Nevertheless, there is no practical way that 11 million individuals actually could be removed.

The GOP would do much better to sign on to immigration reforms that would give some type of legal status (not necessarily green cards) to most of those already here, while expanding legal immigration opportunities across the board. The resulting system would actually reduce pressure on the border while making interior enfircement more of a practical possibility than it has been at any time during the last for decades. But, that would take a thoughtful, practical, non-xenophobic, approach — something that has eluded the GOP in the years since the Reagan Administration.

Look for folks like Labrador & Goodlatte to work with the Adminstration to create a complete “train wreck” in the immigration enforcement system.

PWS

05-22-17

10th Amendment Scoring A Comeback At Both Ends Of The Political Spectrum

https://www.wsj.com/article_email/federalism-for-the-left-and-the-right-1495210904-lMyQjAxMTE3MTIyMDUyNTA0Wj/

Jeffrey Rosen writes in the WSJ:

“President Donald Trump has issued a series of controversial executive orders on immigration that are now tangled up in federal courts. Judges in Hawaii and Maryland have blocked the president’s ban on travelers from six mostly Muslim countries, and another judge in Seattle has blocked his executive order threatening to remove federal funding for “sanctuary cities” that refuse to cooperate with federal immigration agents.

If this contest between branches of government sounds familiar, it should. President Barack Obama also tried to use executive orders to push through his own very different immigration policies, and he was similarly rebuffed by the courts. They held that he lacked the unilateral authority to shield millions of undocumented immigrants from deportation.
There’s a lesson in the symmetry of these two examples, and figures from across the political and ideological spectrum are increasingly embracing it: Many of the issues that recent presidents have tried to decide at the national level through executive orders are best resolved at the state or local levels instead. In an era of fierce partisan divisions, all sides are beginning to see the virtues of our federal system in accommodating differences—and encouraging experimentation—on issues such as immigration, law enforcement and education.

Federalism has long been a cause on the right, but now it’s just as likely to be a rallying cry on the left. Rep. Zoe Lofgren, the top Democrat on the House Judiciary’s immigration and border-security subcommittee, recently said: “The Constitution, specifically the Tenth Amendment, protects states’ rights, and it prohibits federal actions that commandeer state and local officials. When it comes to immigration, these principles seem to be overlooked.”

The framers of the Constitution would be pleased with this emerging consensus. By creating a national government with limited powers, they intended to allow the states and local governments to pursue a range of different policies on matters within what used to be called their “police powers”—that is, their authority to regulate behavior, maintain order and promote the public good within their own territory. The founders considered this arrangement the best way to protect liberty and diversity of opinion, as well as to defend political minorities from nationalist tyranny and concentrated power.”

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Perhaps this is a return to constitutionalism. But, perhaps it’s more representative of the failure of Congress to effectively address the need for comprehensive immigration reform.

PWS

05-21-17

LEGISLATION: House GOP Takes The Low Road — Eschews Compromise — Goes For Enforcement Overkill!

http://www.cnn.com/2017/05/18/politics/immigration-bill-house-committee/index.html

Tal Kopan reports for CNN:

“Washington (CNN)Democrats and Republicans on Thursday faced off over immigration policy as a House committee began considering a set of immigration bills that Democrats say would amount to the creation of a “mass deportation force.”

Proponents of the first bill under consideration by the House judiciary committee — named after two law enforcement officers who were allegedly murdered by an undocumented immigrant — advocated for the bill as important to public safety and rule of law.
But Democrats on the committee decried the bill as an unnecessarily harsh anti-immigrant push by President Donald Trump.
“Proponents of this bill say that it’s necessary to keep us safe, but what the bill really does is pander to the noxious notion that immigrants are criminals and should be dealt with harshly,” said immigration subcommittee ranking member Zoe Lofgren, a California Democrat. “This bill gives Trump and (adviser Steve) Bannon the legislation to establish their mass deportation force. … This bill should really be called the ‘Mass Deportation Act,’ because that’s what it is.”
Judiciary Chairman Bob Goodlatte said the bill was not intended to target immigrants, but to “respect the rule of law.”
“This is simply a bill that gives any administration, the current one and future ones, the authority to enforce our laws properly, and gives to state and local governments … the ability to participate in that enforcement,” Goodlatte said.
The committee was set to mark up three Republican bills related to immigration on Thursday — one that would vastly expand the role of state and local jurisdictions in immigration enforcement and two others that would authorize immigration components of the Department of Homeland Security.
But by mid-afternoon, the committee recessed until next week after only making its way through two amendments. Both were brought by Democrats to strike portions of the bill, and after lengthy debate, both were rejected by the Republican majority committee. Democrats were expected to continue bringing a number of similar amendments when the markup continues on the nearly 200 page bill.
The main bill the committee discussed, the Michael Davis Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act, was introduced by Republican Rep. Raul Labrador of Idaho, and closely resembles similar legislation that the House judiciary committee has advanced in the past and that now-Attorney General Jeff Sessions introduced in his time in the Senate.
The Davis-Oliver Act would substantially increase the capabilities of federal and local immigration enforcement, including empowering state and local law enforcement to enact their own immigration laws and penalties. It also would give the government powers to revoke visas, beef up Immigration and Customs Enforcement’s ability to arrest and deport undocumented immigrants, increase criminal penalties for undocumented immigrants and punish sanctuary jurisdictions.

The two parties went back and forth on the bill, with Democrats decrying it as demonization of all immigrants, as an increase in mass incarceration and as a promotion of racial profiling and as unconstitutional federal overreach. They noted that local law enforcement in sanctuary cities say their policies are important for victims and witnesses of crimes to feel comfortable coming forward.
But Labrador said the notion that the bill harms public safety is “the most preposterous and outrageous argument I’ve ever heard.”
“For too long we have allowed individuals to enter our country illegally and in many cases do us harm,” he said. “While other reforms are needed, this bill is vital to a long-term fix.”
The other two bills, introduced by Goodlatte, a Virginia Republican, would serve as authorizations for ICE and US Citizenship and Immigration Services, codifying the mission statements of both entities. The USCIS bill would focus the agency, which oversees the issuance of visas and grants immigrants the ability to enter the U.S. . . . .”

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America has all the immigration enforcement we need at present. Undocumented entries are down, the undocumented population is stable, and all reputable studies show that migrants of all types are among the most law-abiding sectors of our society. Also, the DHS is unable to remove everyone who is currently under a final order of removal. The U.S. Immigration Court system is completely backlogged, with nearly an astounding 600,000 pending cases.

Consequently, beyond funding “fixes” for the overwhelmed Immigration Courts and the DHS program for executing final orders of removal, there is no need for additional immigration enforcement personnel and authority at this time. Nor is there any need to push reluctant cities to help DHS out with immigration enforcement.

No, notwithstanding the disingenuous statements by GOP Reps. Goodlatte and Labrador, this is all about generating anti-immigrant sentiment and promoting a non-existent link among immigrants, crime, and national security..

What America really needs is some type of legalization program to allow the millions of law-abiding undocumented individual already here to continue to work and contribute to our society. Additionally, we need immigration reform that would expand the legal immigration system to more realistically match supply with demand. This, in turn, would encourage individuals to enter through the legal system and thereby register and submit themselves to complete pre-entry vetting. That’s what would actually promote the safety and prosperity of America!

PWS

05-19-17

TRAC: U.S. Immigration Court Backlog Careens Toward 600,000 — No End In Sight!

==========================================
Transactional Records Access Clearinghouse
==========================================FOR IMMEDIATE RELEASEGreetings. During the past 18 months, a total of 79 new judges have been appointed to the Immigration Court. Despite this spurt in hiring, it has not made a dent in the court’s mountainous backlog. Instead, the backlog along with wait times have steadily increased.As of the end of April 2017, the number of cases waiting for a decision had reached an all-time high of 585,930. Nine courts that account for a quarter of this backlog currently require some individuals to wait for more than four additional years before a hearing is scheduled. The Immigration Court in San Francisco with nearly 42,000 backlogged cases has some cases waiting for more than five additional years – as much as 1,908 days longer – for their July 21, 2022 hearing date.

These extraordinary wait times imply that some individuals are not scheduled to have their day in court until after President Trump’s current four-year term in office has ended. And we are only a little more than 100 days into his four-year term.

How quickly a case can be heard varies by court location, and the priority assigned to the case. Individuals detained by ICE are generally given priority and their cases are heard more quickly. Thus, there is tremendous variation in scheduled wait times from an average of 22 days for the Immigration Court hearing cases in the Cibola County Correctional Center in Minnesota, to 1,820 average days for individuals heard by the Immigration Court sitting in Chicago, Illinois.

These findings are based upon the very latest case-by-case court records – current through the end of April – that were obtained under the Freedom of information Act and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University.

To see the full report, including the backlog and wait until hearings are scheduled for individual Immigration Court hearing locations, go to:

http://trac.syr.edu/immigration/reports/468/

In addition, many of TRAC’s free query tools – which track new DHS filings, court dispositions, the handling of juvenile cases and much more – have now been updated through April 2017. For an index to the full list of TRAC’s immigration tools go to:

http://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563
_______________________________________________

Thanks to Dan Kowalski of LexisNexis for bringing this to my attention.

Just hiring more U.S. Immigration Judges will not solve this problem. There is a huge mismanagement issue at the U.S. Department of Justice!

PWS

05-16-17

FBA Denver Wrap-Up — The Good, The Bad, & The Ugly!

The Good

It was a great conference in a great location — Denver. Lots of restaurants and things to do (although I was actually too busy to get out much).

Hats off to Conference Co-Chairs Barry Frager and the Honorable Lawrence O. (“The Burmanator”) Burman for putting the whole thing together and pulling it off without a hitch. Judge Burman, one of the few real judicial leaders at EOIR, also serves as the Chair of the Immigration Law Section (“ILS”) and editor of the outstanding newsletter, The Green Card.

An impressive group of approximately 400 attended, consisting of private practitioners, NGO lawyers, government attorneys, and several Federal Judges. They came from across the country. They heard from a faculty of dozens of experts covering 60 separate learning sessions over two days.

I particularly enjoyed catching up with old friends like fellow retired U.S. Immigration Judges Joan Churchill, Eliza Klein, and Bill Joyce and my former BIA colleague, Judge Lory Rosenberg. I was pleased to serve with Lory as the other member of the Due Process Panel, and I want to thank her for her very kind remarks about me.

A number of folks commented that they had never seen a happier and more relaxed group of Immigration Judges than our “Gang of Four” retired jurists. I should add that Bill and Eliza are both still actively practicing law, while Joan and I have chosen different retirement paths.

I loved the tremendous energy and spirit that the many younger practitioners brought to the conference. As I pointed out in my three presentations, never has the need for skilled immigration lawyers, ready to strongly and courageously fight the battle for due process, been greater. As one panelist put it, this is the time to show off and improve real legal skills and display creativity and toughness in conducting aggressive litigation in an era where the Government is seeking and intentionally provoking confrontation. Enjoy the moment! And these folks are ready to step up to the plate and give the Trump Administration’s anti-immigrant agenda all it can handle on every front.

It was heartening to see many “charter members” of the “New Due Process Army” (“NDPA”) — folks like Alex Ribe, Claudia Cubas, Eileen Blessinger, Jillian Blake, Robyn Barnard, Paromita Shah, and others — participating in the activities. I believe I also got some “new recruits” for the NDPA.

I’m already looking forward to next year in Memphis!

The Bad

Although The Office of Immigration Litigation (“OIL”), the DHS, U.S. Attorneys, and U.S. Magistrates participated in the panels, not a single current EOIR employee was on the faculty, although a number had been invited. The local U.S. Immigration Judges were “no shows,” although they would have had much to offer the group and vice versa.

Only a handful of EOIR employees attended, in their “personal capacities” and at their own expense. A troubling performance from an agency that amazingly cancelled their badly needed judicial training conference. And, the FBA is the only nationwide bar association concentrating on Federal Practice that encourages and makes possible full membership by both Federal employees and private sector attorneys.

The Ugly

In three words: “The Immigration Courts.” Everyone there, including government attorneys, has been affected in one way or another by the ridiculous backlog of non-detained cases. My references to “ADR” – aimless docket reshuffling – and feeling like I was in “Clown Court” some days struck a real chord with the audience.

Almost every session I attended was replete with descriptions of inappropriate behavior from several courts, Charlotte and Atlanta in particular. Things like Immigration Judges going off record and saying that they didn’t believe in A-R-C-G- (asylum for domestic violence) or asylum for Central Americans. Rude and intimidating treatment of counsel, failure to listen to arguments, unwillingness to grant bond, applying wrong legal standards, and inappropriately going “off record” were among the “horror stories” mentioned. It’s quite obvious that Atlanta and Charlotte, among others, are failing to follow the generous standards for granting asylum set forth by the Supreme Court in Cardoza-Fonseca and reinforced by the BIA in Mogharrabi.

It’s not about what an Immigration Judge personally believes. It’s about fairly and impartially applying the law, particularly to those needing protection. Gosh, I often had to apply BIA precedents that I not only disagreed with, but where I had actually dissented from the majority decision. But, the job of a judge is to follow the law, whether one likes it or not.

Much of the blame goes to the BIA. It sometimes appears to me that certain BIA Appellate Immigration Judges and panels are committed neither to enforcing due process nor their own precedent in Mogharrabi. Some folks are fortunate enough to be in Circuits that hold the BIA to the appropriate standards; others labor away in Circuits that have “blown off” their judicial review function by ”over-deferring” to the BIA. Clearly, the BIA has lost sight of its vision of “being the world’s best administrative tribunals guaranteeing fairness and due process for all.”

In any event, while some of the behavior issues could perhaps be addressed by EOIR management through the complaint system, that won’t solve the problem. Only the BIA has the ability to correct incorrect applications and attitudes about the law and due process in the U.S. Immigration Courts. Only the BIA can bring “outlier courts” – those with far too many asylum denials – into line with the law.

As I gave my keynote speech involving the history of EOIR, it occurred to me that EOIR, quite sadly, was actually returning to what the Immigration Courts were before the “spinoff” from the “Legacy INS:” inbred, staffed almost exclusively with former prosecutors, not user friendly, mismanaged, lacking necessary technology, and essentially being used as a tool for immigration enforcement. In other words, there is a notable lack of judicial independence. Very sad. It appears that as an due process oriented court system, EOIR has “run its course” in the DOJ and is now returning to it’s origins as a captive of the enforcement system.

The Immigration Courts’ problems have been aggravated by DHS leadership’s apparent decision to limit “prosecutorial discretion,” discourage cooperation and stipulation, and to “go to the mat” on everything. At a time when DHS should be looking for ways to get cases off the dockets, they instead appear to be looking for ways to jam the docket even fuller with cases, many of which are unlikely to be resolved in the next decade.

PWS

05-16-17

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