HERE’S MY ARTICLE FROM LAW360: “Justices’ Fleeting Unanimity In Free Speech Immigration Case”

https://www.law360.com/immigration/articles/1272443/justices-fleeting-unanimity-in-free-speech-immigration-case

Justices’ Fleeting Unanimity In Free Speech Immigration Case

By Paul Schmidt

Law360 (May 11, 2020, 6:09 PM EDT) —

Paul Schmidt

On May 7, the U.S. Supreme Court‘s so-called Bridgegate decision got the attention, but the decision released that day in U.S. v. Sineneng-Smith is also notable.

In a unanimous decision by Justice Ruth Bader Ginsburg, the court pummels a panel of the U.S. Court of Appeals for the Ninth Circuit for overreaching on a constitutional overbreadth issue not argued by the parties below.

Observers expecting a blockbuster resolution of the tension between the First Amendment and criminal sanctions for “inducing or encouraging” extralegal immigration undoubtedly were disappointed.

Nevertheless, I find three significant takeaways from the ruling in Sineneng-Smith.

First, an ideologically fractured court desperately seeks common ground on something relating to immigration enforcement.

Second, the judicial restraint preached by Justice Ginsburg in her opinion conflicts with the U.S. attorney general’s use of the immigration courts to advance his restrictionist policy agenda.

Third, and ironically, Justice Clarence Thomas’ concurring opinion calls not for judicial restraint, but solicits a conservative judicial assault on the overbreadth doctrine that generally protects individuals from government overreach.

Facts

Evelyn Sineneng-Smith, a California immigration lawyer, filed labor certification applications for clients to help them get U.S. green cards. She charged each client more than $6,000, netting $3.3 million.

Smith knew that particular path to a green card involving filing for labor certification and adjusting status without leaving the country had been eliminated by statute, except for those in the country on Dec. 21, 2000, who had applied for a labor certification before April 30, 2001.

Smith’s clients did not satisfy that grandfathering criteria. However, Smith apparently did not tell them that the applications they paid her to file could not lead to successful adjustments of status.

A criminal prosecution followed which included, but was not limited to, charges that Smith had unlawfully induced or encouraged her clients to reside in the U.S. in violation of law. Smith, represented by counsel, argued at trial that the criminal statute penalizing inducing or encouraging unlawful immigration did not apply to her specific situation of filing immigration applications for clients.

She also asserted that interpreting the statute to include her particular situation as a lawyer representing clients seeking immigration status would violate the right to petition and free speech clauses of the First Amendment, specifically as applied to her.

She did not claim that all applications of the criminal inducing or encouraging unlawful immigration statute were unconstitutional under the First Amendment.

A U.S. District Court for the Northern District of California rejected all of Smith’s defenses and convicted her on the inducing or encouraging charge, as well as some additional charges of filing false tax returns and mail fraud that were not contested by the time the case reached the Supreme Court.

Smith appealed her encouraging-or-inducing conviction to the Ninth Circuit.

Ninth Circuit Proceedings

On appeal, Smith advanced the same statutory and constitutional arguments, based on the specifics of her situation, that had failed at trial.

The Ninth Circuit panel basically pushed aside both Smith’s and government counsel. Instead, they appointed three amici — friends of the court — principally to argue the case. According to Justice Ginsburg, this essentially made bystanders out of counsel for the actual parties.

Even more egregiously says Justice Ginsburg, the panel reframed and restated the issues for the amici to address. Instead of the narrow issues argued by the parties on the specific facts of the case, the panel posited three new and much broader issues.

The first was “whether the statute of conviction is overbroad or likely overbroad under the First Amendment.”

Faced with a new theory of the defense suggested by the panel itself, Smith’s lawyer, who was allowed but not required to participate in the supplemental briefing by the amici, merely adopted the amici’s overbreadth argument without discussion.

The panel then overturned Smith’s conviction solely on the basis that the statute was overbroad under the First Amendment.

The solicitor general petitioned the court which took the case because it invalidated a federal statute on constitutional grounds.

The court reversed and remanded, instructing the panel to ditch the overbreadth issue and concentrate on the narrower issues relating to Smith’s specific conduct under the statute, as actually argued by the parties at trial and on appeal to the Ninth Circuit.

Analysis

Misleading “Togetherness”

The court’s unanimous rebuke of the panel below provides insight without much useful guidance. It probably could, and should, have been a two sentence, unsigned vacate and remand, referencing the court’s previous jurisprudence on the essential role of cases and controversies in Article III judging.

Notwithstanding some commentators touting the number of unanimous decisions, this court is riven by a deep ideological split between five conservative GOP-appointed justices moving sharply right and four moderate to liberal Democrat-appointed justices trying to hold the line on important individual rights in the face of government overreach.

Nowhere has this gap been more apparent than in the executive’s aggressive efforts to rewrite, and effectively annihilate, previous American immigration laws and human rights policies.

The court’s recent 5-4 decision vacating a stay in Wolf v. Cook County illustrates this. There, five conservative justices accepted the solicitor general’s invitation to interfere with litigation in the U.S. District Court for the Northern District of Illinois, involving the administration’s rewrite of the so-called public charge rules applicable to immigrants.

The majority’s failure to even explain its decision earned an unusually sharp rebuke from Justice Sonia Sotomayor. Unlike this case that involves one individual, the administration’s rule changes, green-lighted by Cook County, have been cited as deterring many individuals legally in the country from seeking medical advice in this pandemic.

So much for judicial restraint as a norm. Here, by contrast, the justices bridged the gap only by finding a common enemy in the panel below. Don’t expect this agreement to carry over into the merits of more controversial immigration issues.

Immigration Courts Don’t Follow This Standard

My colleagues, former mmigration judges Jeffrey Chase and Susan Roy, pointed me to the dissonance between the court’s admonitions here and the attorney general’s legislate-by-decision approach to the immigration courts.

Both former Attorney General Jeff Sessions and Attorney General William Barr eagerly have reached down into the immigration court system they respectively controlled to implement restrictive immigration policies by precedent decision without invitation from the actual parties to litigation.

In two of the best known instances, Sessions acted unilaterally to change established rules concerning domestic violence asylum claims for women and to eradicate nearly four decades of precedent allowing judges to administratively close low priority or dormant cases on their burgeoning dockets.

Notwithstanding their expressed concerns about uninvited judicial activism, the court has effectively overlooked the glaring operational and constitutional problems embedded in an immigration “court” system run by the chief prosecutor. Will they pay attention when future litigants raise this disconnect?

Justice Thomas’ Ironic Concurrence

Justice Thomas’ concurring opinion attacks the overbreadth doctrine and solicits future challenges to it, presumably from right-wing advocates and activist conservative judges who agree with him.

Right-wing activists like Thomas customarily harken back wistfully to the golden age of American jurisprudence when the exclusively white, male, nearly 100% Christian federal judiciary was perfectly happy to look the other way and bend the rules to favor ruling elites.

Those disfavored were often African Americans, women, children, the poor and others who weren’t part of the club. How would Justice Thomas himself have fared in the past world he longs to re-create?

Conclusion

The substantive constitutional issue unanimously ducked by the court might eventually reappear, particularly if Justice Thomas has his way. But, don’t expect repeats of the court’s manufactured harmony in more controversial aspects of the administration’s attacks on the rights and humanity of migrants, like, for example the Deferred Action for Childhood Arrivals case.

I also wonder if this court can continue ignoring the glaring constitutional deficiencies and clear biases in the current immigration court system, defects they would never accept from any Article III judges?

Paul Wickham Schmidt is an adjunct professor at Georgetown University Law Center. He is a retired U.S. immigration judge, and a former chair and judge at the U.S. Board of Immigration Appeals.

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

Many thanks and much appreciation to my good friends and “Round Table” colleagues Judge Jeff Chase and Judge Sue Roy for their ideas and contributions to this article.

Due Process Forever!

PWS😎

05-12-20

Suzanne Monyak @ Law360: FEDERAL COURTS RECOGNIZE THAT BILLY BARR’S BIA IS A FRAUD! — So Why Do They Let The Unconstitutional Abuse Of Persons Seeking Justice Continue Under Their Noses?

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Retired Immigration Judges

EYORE — “Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

https://www.law360.com/immigration/articles/1271825/immigration-board-picks-under-trump-to-set-lasting-policy

Suzanne writes in Law360:

U.S. Circuit Judge Frank H. Easterbrook didn’t mince words earlier this year when sharing his thoughts on a recent decision by the immigration courts’ appellate board: “We have never before encountered defiance of a remand order, and we hope never to see it again.”

The Seventh Circuit judge, a Reagan-appointee, said the board had ignored the court’s directions to grant protection to an immigrant fighting deportation, instead ruling against the immigrant again. The rebuke wasn’t the first time the Board of Immigration Appeals has been reprimanded by the federal judiciary for seemingly prejudiced decisions under the Trump administration.

Just a month earlier, a judge on the Third Circuit tackling an appeal from the BIA wrote in a concurring opinion that it didn’t appear the board “was acting as anything other than an agency focused on ensuring [an immigrant’s] removal rather than as the neutral and fair tribunal it is expected to be.”

“That criticism is harsh and I do not make it lightly,” U.S. Circuit Judge Theodore McKee wrote.

While President Donald Trump’s judicial nominees and U.S. Supreme Court picks grab headlines for rtheir potential to shape the judiciary for years to come, the administration is staffing the lesser known BIA with former immigration judges who have high asylum-denial rates and individuals with backgrounds in law enforcement. Some of the picks have prompted advocates for immigrants and lawmakers to claim the hiring process is too politicized.

Documents newly obtained through the Freedom of Information Act reveal that the Trump administration has aimed to fast-track the hiring process while giving the director of U.S. Department of Justice‘s Executive Office for Immigration Review, James McHenry, and the U.S. attorney general more say in who gets the nod.

Unlike the federal and appellate courts, the BIA, an administrative appellate board that hears appeals from immigration trial courts, is not independent but rather is housed with the EOIR.

Yet the board can issue precedential decisions that shape immigration policy — and the lives of immigrants facing deportation — well into the future.

“That the reasonably ordinary citizen has not heard of the BIA does not take away from the fact that it is the most important agency establishing immigration jurisprudence in the country, and when you politicize that, you’re obviously politicizing immigration jurisprudence,” said Muzaffar Chishti, head of the nonpartisan Migration Policy Institute’s New York office.

A spokesperson for EOIR told Law360 that the office sped up the hiring process as part of “commonsense changes” and in response to criticism from Congress.

She also said that EOIR “does not choose board members based on prohibited criteria such as race or politics, and it does not discriminate against applicants based on any prohibited characteristics,” and that “all board members are selected through an open, competitive, merit-based process.”

During the most recent hiring cycle, every panelist evaluating candidates was a career employee, not a political appointee, according to the spokesperson.

“Individuals who assert that such changes make the hiring process less neutral are either ignorant or mendacious,” the spokesperson said.

High Rates of Asylum Denials

Since August, the Trump administration has installed nine of the 19 current permanent members of the BIA, and most of the newcomers have asylum-denial rates above 80% and backgrounds in law enforcement or the military.

All but one of the nine were previously immigration judges, and according to data collected by Syracuse University’s Transactional Records Access Clearinghouse, the average asylum-denial rate among those eight judges was just over 92%. The denial rate for each of those eight judges ranged from 83.5% to 96.8%.

The average asylum-denial rate for immigration courts nationally is 63.1%, according to TRAC.

Asylum-denial rates aren’t perfect metrics; controlling asylum law varies by circuit, and the viability of asylum claims can vary based on location. New York’s immigration courts for instance, tend to see more asylum claims from Chinese citizens fleeing political oppression, which are more frequently successful, while courts near detention centers may see harder-to-win claims from longtime U.S. residents with less access to counsel.

However, Jeffrey Chase, a New York City immigration lawyer and former immigration judge, told Law360 that no one deciding cases fairly could have a 90% asylum denial rate.

“You’re looking to deny cases at that point,” he said.

The one recent Trump administration BIA hire who wasn’t previously an immigration judge had been a trial attorney at the Justice Department, while many of the other former judges had prior experience at the U.S. Department of Homeland Security or its predecessor agency.

One, V. Stuart Couch, was previously a senior prosecutor for detainees held at Guantanamo Bay, Cuba.

“There’s overall just a lack of diversity on the immigration judge bench, which is deeply concerning,” said Laura Lynch, senior policy counsel at the American Immigration Lawyers Association. “I think the mark of justice is the idea that decision makers come from a diverse background.”

A hire to the BIA announced earlier this month, Philip J. Montante Jr., has come under fire not only for a sky-high asylum-denial rate — 96.3% — but for a history of ethics complaints.

In 2014, the DOJ’s Office of Professional Responsibility concluded that Judge Montante’s handling of an immigration case was “inappropriate” after an attorney accused him of showing bias when deciding a client’s case.

In March, not long before his promotion to the BIA was announced, the New York Civil Liberties Union accused Judge Montante in a proposed class action in federal court of denying detained immigrants’ bond requests nearly universally.

According to the advocacy organization, Judge Montante rejected 95% of bond requests between March 2019 and February 2020, bringing him within the top five lowest bond grant rates among the more than 200 immigration judges nationwide.

. . . .

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

Read the rest of Suzanne’s excellent article, with more quotes from my fellow members of the NDPA, Judge Jeffrey S. Chase and Laura Lynch, at the above link. I have been told that this article is “outside” the Law360 “paywall,” so you should be able to read it even if you don’t have a subscription.

I find the Article III Courts’ recognition of the Due Process travesty going on in individual cases, while they ignore the systemic unfairness that makes a mockery out of the Due Process Clause of our Constitution, the rule of law, our entire justice system, and humanity itself, perhaps the most disturbing institutional failure under the Trump regime. While Article III Judges are “shocked and offended” by contemptuous actions directed at them in particular cases, they remain willfully “tone deaf” to the reality of our dysfunctional and biased Immigration Courts and their impact on “real human lives.” ☠️

This is how individuals seeking justice and the courageous lawyers representing them, many serving at minimal or no compensation to inject a modicum of integrity into our system, are treated every day. Not every wronged individual has the ability to reach the Article IIIs.

And, given the Article IIIs failure to take the courageous, systemic steps necessary to stop abuses of migrants, the Trump regime has “taken it to a new level” by coming up with various illegal schemes and gimmicks to keep individuals seeking asylum from even getting a hearing in Immigration Court. Due Process? Fundamental Fairness? Rule of Law? No way!

Yet, this unfolds before us daily as the Article IIIs basically “twiddle their collective thumbs” 👎🏻 and “nibble around the edges” of a monumental Constitutional disaster and blot on the humanity and integrity of our nation and our own souls. The complicity starts with the Supremes who have “passed” on a number of critical opportunities to “just say no” to blatant violations of the Fifth Amendment, the Immigration and Nationality Act, the Refugee Act of 1980, international human rights conventions, and misuse and clear abuse of “emergency authority” to achieve a White Nationalist, racist agenda.

In other words, the Supremes’ majority is knowingly and intentionally encouraging the regime’s program of “Dred Scottification” — dehumanization or “de-personification” before the law — of “the other.” This disgusting and fundamentally un-American “resurrection and enabling” of a “21st Century Jim Crow Regime” might be “in vogue” with the “J.R. Five” and their right-wing compatriots right now. But, they are squarely on the “wrong side of history.” Eventually, the “truth will out,” and they will be judged accordingly!👎🏻

That’s why I say: “Constantly Confront Complicit Courts 4 Change.”

Due Process Forever!

PWS

05-11-20

GULAG WATCH: Here’s Some Better News From The USDC in DC! 👍🏼 — O.M.G. et al. v. Wolf et al.

https://www.law360.com/immigration/articles/1267946/flores-ruling-extends-to-adults-in-covid-19-detention-fight

Flores Ruling Extends To Adults In COVID-19 Detention Fight

By Khorri Atkinson

Law360, Washington (April 27, 2020, 8:50 PM EDT) — A D.C. federal judge ordered the government Monday to apply certain standards laid out in a landmark consent decree that established bedrock standards of care for migrant children in custody to adults held in three residential detention centers in Pennsylvania and Texas amid the coronavirus outbreak.

U.S. District Judge James Boasberg ruled during a teleconference hearing that U.S. Immigration and Customs Enforcement must deliver by May 15 an account of what’s being done to expedite the release of adult detainees as well as efforts to ensure those detained at facilities with confirmed COVID-19 cases are being protected.

The decision came amid allegations by immigration advocacy groups that ICE has exhibited indifference to families at high risk of contracting the disease and that no appropriate steps are being taken to prevent the spread of the novel coronavirus. The Rapid Defense Network, ALDEA — the People’s Justice Center, and the Refugee and Immigrant Center for Education and Legal Services last month sued federal immigration authorities, demanding the immediate release of dozens of migrant families at detention centers in Berks County, Pennsylvania, and Dilley and Karnes City, Texas.

In his ruling Monday, Judge Boasberg once again declined to grant immediate release of the asylum-seekers. But the judge applied some conditions in the landmark 1997 federal consent decree known as the Flores settlement agreement, which established bedrock standards of care for migrant children in custody. The decree prohibits the U.S. Department of Homeland Security from detaining migrant children beyond the 20-day limit.

Judge Boasberg expanded that holding to cover their parents, but stopped short of mandating the government to explain why an adult has been in detention for more than 20 days.

The judge noted that while adults are not protected under Flores, the government has been providing some information on adults in detention to U.S. District Judge Dolly Gee of California, who has been overseeing the consent decree as part of a long-running class action.

“I think this is sufficient at this point to ensure the constitutional treatment of” detainees, the judge said of his order during the teleconference session.

Nonetheless, Judge Boasberg indicated that ICE has been making substantial efforts to prevent the spread of the novel coronavirus at the facilities, pointing out that the three centers are at least 16% under capacity. So far, none of the centers have recorded cases of COVID-19, the government told the court.

“Conditions are definitely improving,” the judge said. “That’s highly significant to me.”

Monday’s order builds upon previous decisions by the judge, who instructed ICE to provide the court with statistics on the number of detained migrants seeking asylum; testing and treatment plans; and compliance with the Centers for Disease Control and Prevention’s guidance for congregate settings such as detention centers.

Vanessa Molina, a U.S. Department of Justice attorney representing ICE, argued against applying Flores in this case. She maintained that it would be improper to demand that the agency explain why adults are in detention for more than 20 days because the consent decree was never meant to include parents or adults.

Detention is a part of the removal process pending a deportation proceeding, Molina continued, and the plaintiffs have not demonstrated their burden of showing why they should be released. And there’s no finding in this case that ICE had been deliberately indifferent to the medical needs of asylum-seekers with COVID-19 risk factors, she said.

“ICE is authorized to detain the adults pending deportation proceedings,” the government attorney doubled down

Judge Boasberg responded that the government has been producing detention information on minors to the California federal judge and asked, “Why would there be any objections … [to provide similar data to the D.C. district court] for the adults?”

Morgan Lewis & Bockius LLP partner Susan Baker Manning, an attorney for the migrant families, conceded to the government’s argument that detention is authorized as part of the deportation process. But the lawyer contended that her clients are being held in unsanitary conditions, that they are not subject to mandatory detention, and that they are not a danger to the community because they have no criminal histories.

Manning had urged Judge Boasberg to include the 20-day condition because it “is a perfect and reasonable benchmark to understand why migrants are being held in facilities where they are at risk of contracting COVID-19.” But the judge declined to do so.

The judge has set a May 20 teleconference hearing for the parties to discuss the latest developments in the litigation.

The migrants are represented by Susan Baker Manning of Morgan Lewis & Bockius LLP, ManojGovindaiah and Curtis F.J. Doebbler of the Refugee and Immigrant Center for Education and Legal Services, Amy Maldonado of The Law Office of Amy Maldonado, and Sarah T. Gillman and Gregory P. Copeland of Rapid Defense Network.

The government is represented by Vanessa Molina of the U.S. Department of Justice’s Civil Division’s Office of Immigration Litigation and Daniel Franklin Van Horn of the U.S. Attorney’s Office for the District of Columbia.

The case is O.M.G. et al. v. Wolf et al., case number 1:20-cv-00786, in the U.S. District Court for the District of Columbia.

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

Thanks to Dan Kowalski over at LexisNexis Immigration Community for sending this!

Sadly, the lack of leadership among all three branches of our Government means that what should be uniform policies applicable throughout the country are instead litigated piecemeal, with differing results. Not surprisingly, as the regime touts draconian immigration “bans and bars” approaches to the coronavirus crisis, it continues to fail on the everyday “Xs and Os” of competent government, requiring constant prodding from lawyers, judges, and journalists to get the basics right.

Still, a “W” is a “W” for the “good guys!”

PWS

04-28-20

NICOLE NAREA @ VOX: Fearing COVID-19, MASS. Immigrants Seek Freedom From DHS Gulag Before It’s Too Late! — “Everyone deserves the opportunity to survive this!”

https://apple.news/APNjMBtPWQimrrwcm_jfXUQ

Nicole Narea reports for Vox News:

As most of the country remains in lockdown to curb the spread of coronavirus, nearly 150 immigrants are fearing for their safety as they fight for their release from a North Dartmouth, Massachusetts, detention facility.

From the few hours of television news they can watch each day, the detainees have learned that social distancing, along with proper sanitation, is the only way that they can protect themselves from infection. But that’s all but impossible at the Bristol County Correctional Center, where the detainees are held together in tight quarters without the protective equipment or sanitation resources necessary to protect themselves, they argue in a class action lawsuit.

They are among the 38,000 immigrants in detention across more than 130 private and state-run detention facilities nationwide. As of April 7, 19 detainees across 11 different facilities had tested positive for the virus — none of them in Bristol, though advocates say it’s only a matter of time before it hits or testing rates improve.

Only after outcry from immigrant advocates did US Immigration and Customs Enforcement recently institute national policies encouraging social distancing in its facilities and provide soap, hand sanitizer, cleaning supplies, and personal protective equipment. The agency also announced Tuesday that it would start releasing detainees who are medically vulnerable to Covid-19, the disease caused by the coronavirus; it has released 60 so far and has identified another 600 who would qualify.

But that’s only a fraction of the detainees nationwide. Unless the agency starts releasing detainees by the thousands, that means most will remain in confinement, despite the fact that they largely have no criminal history. There is, therefore, a national advocacy push for the administration to alter its enforcement priorities to release all detainees, or at least those who haven’t committed serious crimes; while immigrant advocates campaign for their release even in the best of times, their message has become even more urgent amid the outbreak.

In the meantime, those at Bristol remain in conditions that they fear could facilitate the spread of the virus, which can be carried by those who don’t exhibit symptoms.

For the more than 30 detainees with underlying medical conditions that make them vulnerable to complications from Covid-19, it’s an especially scary situation. So far, only 18 detainees have been ordered released as part of the lawsuit, and not all of them qualify as high-risk.

“We suffer from being separated from our families and loved ones,” 47 detainees wrote in a March 20 declaration. “To add on top of this, we are now living in fear.”

. . . .

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Read the rest of Nicole’s article at the link.

Sheriff Thomas Hodgson claims that there isn’t an adequate “social safety net” for these detainees in the community. But, have he and DHS worked with the advocates seeking release and the community to see what testing and safe placements might actually be available? He has responsibility for the well-being of those in his custody. But, it doesn’t sound like he has anything approaching a rational plan to carry out his legal obligations.

PWS

04-09-20

NICOLE NAREA @ VOX: “CONFIRMING THE AMERICAN DREAM” –Debunking Another Trump White Nationalist False Narrative: Even The Poorest Immigrants Quickly Adapt & Become Self-Sufficient! — “The adult children of immigrants, almost universally, show more upward economic mobility than their peers whose parents were born in the United States.”

https://apple.news/A54Jcss-aTZ21cr6npgpyDA

Nicole Narea reports at Vox News:

A new study shows that even the poorest immigrants lift themselves up within a generation

It appears that the idea of the “American Dream” has some truth.

By Nicole Narea @nicolenarea Nov 1, 2019, 2:20pm EDT

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Carmen del Thalia Mallol holds her daughter Lia, 4, after becoming a new US citizen during a naturalization ceremony inside the National September 11 Memorial Museum on July 2, 2019, in New York City. Drew Angerer/Getty Images

The adult children of immigrants, almost universally, show more upward economic mobility than their peers whose parents were born in the United States. Indeed, a new working paper by Stanford University’s Ran Abramitzky; Princeton University’s Leah Platt Boustan and Elisa Jácome; and the University of California Davis’ Santiago Pérez finds that this is especially true for the lowest-income immigrants and remains true for the most recent cohorts for which data is available.

Drawing from census data, publicly available administrative data, and federal income tax data, they traced the income levels of millions of fathers and sons over time dating back to 1880. The children of immigrants climbed higher in the income rankings than those born to US natives across history and in 44 of the 47 sending countries they studied.

The paper contradicts President Donald Trump’s rhetoric suggesting that immigrants drain the social safety net rather than pulling themselves up and that immigrants from a select few countries are more desirable than others. On that basis, the president has pursued numerous policies aimed at preventing low-income immigrants, particularly those from what he has referred to as “shithole countries,” from entering and settling in the US.

Even poor immigrants’ kids achieve success

Prior research has shown that immigrants who start out earning less than their US-born peers are unlikely to catch up in their lifetimes. And among more recent immigrants, that initial income gap is growing bigger and harder to close.

But the new study shows that, even if immigrants start out with low income levels, most are not only catching up eventually but surpassing their US-born peers — even if it takes a generation.

Even children of the poorest immigrants from most countries have higher levels of economic mobility than their peers born to American parents. https://economics.princeton.edu/2019/10/25/immigrant-mobility-abramitzky-boustan/

The typical explanation offered for this kind of immigrant achievement is some inherent quality resulting from cultural differences, such as a strong work ethic or placing a value on education. But the working paper offers a more tangible explanation for the mobility gap: Immigrants tend to settle where there is more economic opportunity and take jobs that are below their true skill level.

“We don’t even have to reach for these cultural explanations,” Boustan said in an interview. “A lot of it has to do with immigrants being willing to move anywhere and choosing locations where there are growing industries and a good set of job opportunities for their kids. Those are choices that immigrants are making that are different from the US-born and that could be a feature of immigrant success.”

It makes sense why immigrants choose to move to areas of higher economic opportunity as compared to the US-born. Without social and professional networks anchoring them to one place, they are more “footloose” and flexible in where they ultimately settle, Abramitzky said. Historically, that has meant that foreign-born populations tend to cluster in urban areas.

The first generation arriving in the US, however, might also have difficulty finding work at income levels that reflect their true talents and abilities due to a variety of factors: limited English skills, lack of an established professional network in the US, and discrimination, Boustan said.

A classic scenario might be a Russian scientist who comes to the US and works as a cab driver. In that case, the second generation might be able to move up more quickly than their father’s income ranking would suggest.

“What might matter for the kids is what their father’s true talents and abilities were, rather than where he gets placed in the labor market,” Boustan said.

The economic mobility gap, the paper finds, is particularly stark when examining the children of those on the lowest rungs of the income ladder, ranked below the 25th percentile. In that category, the children of immigrants climb three to six percentile rank points higher than the children of natives.

The gap narrows, however, when examining families from the top income levels. And it even reverses slightly when comparing children growing up in the same geographic area.

The paper, while expansive, has some limitations: It relies on federal income tax records that likely do not capture unauthorized immigrants, the primary target of the president’s ire as he attempts to make the southern border all but impenetrable to migrants from Central America attempting to cross illegally.

But it’s reasonable to speculate that unauthorized immigrants would also settle in areas of economic opportunity and take jobs below their skill level, potentially resulting in similar rates of economic mobility as compared to other immigrants, the researchers said. The only caveat could be that unauthorized immigrants and their children experience more discrimination in the US, limiting their access to higher-paying jobs.

All kinds of immigrants move up the ladder

Boustan said the paper pushes back on the idea of “model minorities”: that minorities from certain ethnic or racial backgrounds tend to find more socioeconomic success than others. It’s typically been used to describe Asians in contrast to Hispanics and African Americans. But regardless of race or ethnicity, children of immigrants from the overwhelming majority of the countries they studied performed better than the US-born.

The paper’s findings also challenge Trump’s ideas about who should be allowed to immigrate to the US.

In January 2018, he reportedly derided immigrants from what he considers “shithole countries,” including El Salvador and African nations, while simultaneously calling for “more people from Norway.” And he infamously maligned Mexican immigrants when launching his campaign for president in 2015.

“When Mexico sends its people, they’re not sending their best,” he said. “They’re sending people that have lots of problems, and they’re bringing those problems with us.”

In fact, immigrants from Mexico, El Salvador, and African nations such as Nigeria are all performing better than the US-born. And in past waves of immigration, immigrants from Norway actually performed worse than the US-born.

“We take it as a warning against taking a nostalgic view of immigration,” Abramitzky said.

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Trump’s (and his fellow White Nationalists’) racist-inspired false narratives are harming America and preventing us from becoming even greater. Obviously, a smarter, more decent Administration would cut the xenophobic nonsense, legalize the law-abiding migrants already here, and propose ways to expand legal immigration across the board.

Those actions, not expensive, mean-spirited, and ultimately futile “enforcement only” gimmicks, would address the “immigration issue” in a fair, humane, and mutually beneficial manner. Also, by reducing the “unnecessarily undocumented population” and providing more realistic opportunities for future legal immigration and integration into our society, immigration enforcement would become far more focused, efficient, and effective.

Instead of treating needed workers and legitimate refugees like “bank robbers” (often actually ignoring the real criminals), the DHS could concentrate on a smaller number of individuals attempting to evade a more reasonable and realistic system. Additionally, with real lines for legal immigration, rather than imaginary ones the Trump crowd often disingenuously references, being sent “to the back of the line” would be more of a deterrent than it is now.

Although, as Nicole points out, the study didn’t specifically cover undocumented individuals, the findings of this study certainly match my “real life” experiences in Immigration Court. The overwhelming majority of those coming before me on the non-detained docket were basically decent, law abiding folks performing productive functions in our communities. For a short time at the end of the Obama Administration, ICE actually recognized the futility of removing such individuals and exercised “prosecutorial discretion” (“PD”) through “administrative closing” in many cases where removal would actually diminish our nation while wasting limited court time.

Those very few individuals who ”flunked out” of the “PD program by getting in trouble were returned to court, usually on the detained docket, and in most cases removed. The others formed a “natural core” for a future legislative legalization program that a smarter, kinder, braver Administration would have proposed.

Naturally, one of the first things the Trump White Nationalists tried to do was end two of the most successful programs ever instituted within DHS: DACA and PD. The results of these mean-spirited and short sighted actions have been highly problematic for the individuals involved as well as our country.

PWS

11-02-19

NICOLE NAREA @ VOX: As Life Threatening Due Process & Statutory Violations Predictably Mount Under The Ninth Circuit’s “Let ‘Em Die In Mexico” Program, Congressional Dems Demand IG Investigation Of “Tent Courts,” A/K/A Kangaroo Courts!

https://www.vox.com/policy-and-politics/2019/10/18/20920000/house-democrats-investigation-tent-courts-border-port

House Democrats are calling for investigations into two temporary immigration courts that opened along the southern border last month where migrants who have been waiting in Mexico are fighting to obtain asylum in the US, according to a letter sent Thursday.

The courts — located in tent complexes near US Customs and Border Protection ports in Laredo and Brownsville, Texas — were built to hear cases from migrants who have been sent back to Mexico under President Donald Trump’s “Remain in Mexico” policy, officially known as the Migrant Protection Protocols.

Unveiled in January, the policy has affected over 50,000 migrants found to have credible asylum claims, including those who present themselves at ports of entry on the southern border and those who are apprehended while trying to cross the border without authorization.

The tent courts, which opened in early September with no advance notice to the public, have the capacity to hold as many as 420 hearings per day in Laredo and 720 in Brownsville conducted exclusively by video. Immigrants and their attorneys video conference with judges and DHS attorneys appearing virtually, streamed from brick-and-mortar immigration courts hundreds of miles away.

Democratic leaders, led by Congressional Hispanic Caucus chair Joaquin Castro, raised concerns Thursday that the tent facilities have led to violations of migrants’ due process rights by restricting their access to attorneys and relying on teleconferencing. They also expressed alarm that asylum seekers processed in the facilities are being returned to Mexico even though they are in danger there and that the public has largely been barred from entering the tent facilities, shrouding their operations in secrecy.

“Given the lack of access to counsel and the limitations of

, we are concerned these tent courts do not provide full and fair consideration of their asylum claims, as required by law,” the lawmakers wrote, urging the Department of Homeland Security and Department of Justice’s inspectors general to investigate. “The opening and operations of these secretive tent courts are extremely problematic.”

Few have been allowed to enter the courts

Acting Department of Homeland Security Secretary Kevin McAleenan had assured that members of the public and the press would be permitted to access to the facilities so long as they do not “disrupt proceedings or individuals’ privacy.”

In practice, however, that’s not how they have operated, and as House Democrats pointed out Thursday, preventing the public from viewing immigration court proceedings violates federal regulations.

“We are concerned that the administration has intentionally built these tent court at Customs and Border Protection ports of entry to justify limited public access to these facilities, and that this lack of transparency may allow DHS to hid abuse and due process violations that may occur in the tents,” their letter said.

Laura Lynch and Leidy Perez-Davis, attorneys with the American Immigration Lawyers Association who visited the port courts shortly after they opened in September, said they and other lawyers from the National Immigrant Justice Center, Amnesty International, and the Women’s Refugee Commission were barred from observing proceedings in the courts absent a document showing that they were representing one of the migrants on site.

The few attorneys that had such agreements were allowed to enter the facility a little more than an hour before their clients’ hearings to help them prepare — insufficient time given that, for many, it is their first opportunity to meet in person, Perez-Davis said.

In the first few days that the courts were open, the only people allowed in the hearing rooms were immigrants and their attorneys — but critically, not their translators, Lynch said. There were few attorneys representing asylum seekers in proceedings at the port courts, and even fewer spoke fluent Spanish and could have conversations with their clients.

Officials have since allowed translators into the hearing rooms, Lynch said, but neither DHS nor the DOJ have issued any formal clarification of their policy.

Attorneys are also not allowed to attend “non-refoulement interviews” at the tent facilities, in which an asylum officer determines, usually over the phone, whether a migrant should be sent back to Mexico or qualifies for an exemption allowing them to go to a detention facility in the US.

Limiting access to the port courts also inhibits legal aid groups’ ability to conduct presentations for migrants informing them of their rights in immigration proceedings, as they typically do in immigration courts.

Perez-Davis said that she observed one hearing from San Antonio — where some of the remote immigration judges handling cases in the ports courts are based — in which a young migrant woman was confused about what “asylum” means. That kind of knowledge would have previously been provided in presentations by legal aid groups.

Videoconferencing doesn’t facilitate a fair proceeding

The use of video conferencing in immigration court proceedings has long been a subject of controversy. In theory, teleconferencing would seem to make proceedings more efficient and increase access to justice, allowing attorneys and judges to partake even though they may be hundreds of miles away.

But in practice, advocates argue that teleconferencing has inhibited full and fair proceedings, with some even filing a lawsuit in New York federal court in January claiming that it violates immigrants’ constitutional rights.

Immigrants who appear in court via teleconference are more likely to be unrepresented and be deported, a 2015 Northwestern Law Review study found. Reports by the Government Accountability Office and the Executive Office of Immigration Review have also raised concerns about how technical difficulties, remote translation services, and the inability to read nonverbal communication over teleconference may adversely affect outcomes for immigrants.

Yet despite such research, the immigration courts have increasingly used video as a stand-in for in-person interaction.

In the port courts in Laredo and Brownsville, video substitutes for that kind of interaction entirely — but it has not been without hiccups so far.

Lynch, Perez-Davis, and Yael Schacher, a senior US advocate at Refugees International, said they all observed connectivity issues. For migrants who must recount some of the most traumatic experiences of their lives to support their asylum claims, video conferencing makes their task harder, Perez-Davis said.

“I have been asking myself what happens if you’re in the middle of the worst story you’ve ever had to tell, and the video cuts out?” she said.

These courts are sending immigrants back to danger in Mexico

Migrants are required to travel in the dark and show up for processing before their hearings at the port courts early as 4:30 in the morning.

That puts them at increased risk, with recent reports of violence and kidnappings in Nuevo Laredo, which is directly across the border from Laredo, and Matamoros, which is adjacent to Brownsville. The State Department has consequently issued a level four “Do Not Travel”warning in both Nuevo Laredo and Matamoros.

Lynch and Perez-Davis said that attorneys are also increasingly afraid of crossing the border into Mexico in light of those safety concerns. Where they used to cross over the border to deliver presentations informing migrants of their rights and the US legal process in Mexican shelters, that is no longer happening to the same degree.

“It has chilled any sort of ability to provide legal representation,” Perez-Davis said.

DHS purports to exempt “vulnerable populations” from the Remain in Mexico policy and allow them to remain in the US, but in practice, few migrants have been able to obtain such exemptions in non-refoulement interviews.

The advocacy group Human Rights First issued a report earlier this month documenting dozens of cases in which inherently vulnerable immigrants — including those with serious health issues and pregnant women — and immigrants who were already victims of kidnapping, rape and assault in Mexico were sent back under MPP after their interviews.

With attorneys barred from advocating for migrants in these interviews, migrants will likely continue to be sent back to Mexico even if they should qualify for an exemption under DHS’s own guidelines.

“These interviews are a basic human rights protection to ensure that no one is returned to a country where they would face inhumane treatment, persecution or other harm,” Democrats wrote Thursday. “We are concerned that DHS is returning asylum seekers to harm in Mexico.”

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This situation persists as a direct and predictable consequence of the Ninth Circuit’s atrocious decision staying the District Court’s properly issued injunction in Innovation Law Lab v. McAleenan!

As I told the US District Court, District of Rhode Island, 2019 District Conference on “Independence & the Courts” today:

Constantly Confront Complicit Courts 4 Change. Make the guys in the ivory tower “own” the deaths, human rights abuses, unrelenting human misery, and mockeries of justice that their intransigence and failure to carry out their oaths to faithfully support and defend the Constitution of the U.S. is causing to the most needy and vulnerable among us — that is, to those who have the audacity to assert their legal rights under our laws.

What good are “independent” courts who won’t stand up for our individual rights under the Constitution? “Independence” does not entitle judges to use their privileged positions to be complicit or complacent in the face of great tyranny and the human misery and irreparable harm it causes!

And, thanks to Nicole for “keeping on” this horrifying chronicle of calculated and premeditated human rights abuses by an Executive Branch “gone rogue,” and the disastrous real life human consequences of ivory tower appellate judges failing to perform their Constitutional duties. They will not escape the judgment of history for their unwillingness to stand up to the abuses of a White Nationalist regime carrying out a predetermined agenda totally unrelated to governing in the public interest or complying with the rule of law.

Also, many thanks too Laura and Leidy for having the courage and dedication to put themselves “on the line” to let us know exactly what’s happening as a result of the massive failure of all three branches of our Government.

Join the New Due Process Army and take the fight to preserve our American values and our Constitution to all three branches of Government until they do their duties and stop the illegal and unconstitutional abuses of asylum seekers!

PWS

10-18-19

NICOLE NAREA @ VOX NEWS: Trump Brings Ignominious End To Six Decades Of U.S. Global Leadership On Refugees – Functionally Ends One Of America’s Most Successful, Beneficial, & Enriching Programs!

https://apple.news/AIdY3RXXGRp2vAq_TNEIM1w

Trump’s cuts to the refugee program signal the end of an era.

By Nicole Narea | October 1, 2019 7:30 am

The United States’ refugee program once served as a global model of how a powerful country should support the world’s most vulnerable people. But under President Donald Trump, America is now accepting fewer refugees than ever, signaling that not even they are immune to the president’s restrictionist immigration policies.

On Thursday, the administration announced that the US will accept 18,000 refugees at most over the next year, the fewest in history and down from a cap of 110,000 just two years ago. A new executive order from Trump will allow state and local authorities to block refugees from settling in their areas.

The Trump administration claims that lowering refugee admissions would allow the US to take in more asylum seekers: people fleeing violence and persecution who apply for protection when they are already in the US, unlike refugees, who are processed by international organizations.

But the administration is also doing everything it can to keep asylum seekers out of the US. Migrants can be returned to Mexico to await decisions on their asylum applications, barred from obtaining asylum if they passed through another country before arriving in the US, or sent back to the Northern Triangle countries of Guatemala, El Salvador, and Honduras to seek protections there.

During his campaign, Trump painted refugees fleeing the Syrian civil war as national security threats. In office, his administration hasn’t distinguished among asylum-seekers, refugees, and other migrants. It’s painted them all as a threat to or drain on American society and has crafted policies that try to keep as many people out of the US as possible.

The Trump administration is setting up the admission of refugees and asylum seekers as a “zero-sum game.” But in reality, it’s just trying to block immigration across the board, said Elizabeth Foydel, deputy police director at the International Refugee Assistance Project.

The US has the capacity to take in both more refugees and more asylum seekers. But the Trump administration is sending a message: The US is no longer the same safe haven it once was. The policies are in line with acting US Citizenship and Immigration Services Director Ken Cuccinelli’s amendment to Emma Lazarus’s famous poem on the Statue of Liberty: “Give me your tired and your poor who can stand on their own two feet.”

During the campaign, Trump helped stoke anti-refugee sentiment

The refugee program has historically flourished under Republican presidents. Even in previous Republican administrations seeking to curtail immigration, no one has ever set the cap on refugee admissions as low as Trump has. Former President George W. Bush briefly cut the number of refugees admitted after the 9/11 attacks, but even then the limit was set at 70,000.

But the bipartisan consensus on maintaining a robust refugee resettlement program began to unravel after the Paris terror attacks in late 2015, said Yael Schacher, senior US advocate for Refugees International, when suicide bombers — reportedly sanctioned by the Islamic State — killed 130 civilians in explosions and mass shootings throughout the city.

There was speculation that one of the attackers was a refugee, one of 5.6 million Syrians who have been displaced since 2011 by the still-ongoing civil war. It was later confirmed that all of the perpetrators were citizens of the European Union. But the rumors were enough to spark a panic about Syrian refugees and start a movement among governors, mostly Republicans, to cut back US admissions of Syrian refugees and resettlement efforts more broadly.

Governors from 31 states, all Republican but for New Hampshire’s Maggie Hassan, said they no longer wanted their state to take in Syrian refugees. In 2016, Mike Pence, then governor of Indiana, also tried to prevent refugee resettlement agencies in his state from getting reimbursed for the cost of providing social services to Syrian refugees.

But states didn’t have the legal authority to simply refuse refugees; that’s the prerogative of the federal government. Pence ultimately had to back down after a federal court ruled against his decision to withhold the reimbursements.

Trump, then campaigning for president, stirred up more fear, suggesting that Syrian refugees were raising an army to launch an attack on the US and promising that all of them would be “going back” if he won the election. He said that he would tell Syrian children to their faces that they could not come to the US, speculating that they could be a “Trojan horse.”

“Military tactics are very interesting,” Trump said. “This could be one of the great tactical ploys of all time. A 200,000-man army, maybe. Or if they sent 50,000 or 80,000 or 100,000 … That could be possible. I don’t know that it is, but it could be possible.”

When Trump eventually took office, he delivered on his promise to slash refugee admissions from Syria, suspending refugee admissions altogether from January to October 2017. From October 2017 to October 2018, the US admitted only 62.

State leaders lined up behind him: The Tennessee legislature, for instance, filed a lawsuit in March 2017 claiming that the federal government was infringing on states’ rights by forcing them to take in refugees (a court challenge that also failed).

Trump’s executive order Thursday may vindicate the states that wanted to turn refugees away. (The International Refugee Assistance Project said it is contemplating challenging the order in court.) Under the executive order, local governments that do not have the resources to support refugees in becoming “self-sufficient and free from long-term dependence on public assistance” will be able to turn them away.

It’s not clear how it will play out in practice. States won’t just be able to refuse refugees from certain nations, such as Syria, Stephen Yale-Loehr, a professor at Cornell Law, said. Immigration law provides that state and local governments must provide aid “without regard to race, religion, nationality, sex or political opinion.”

But it could prove complicated when states and municipalities disagree over whether to accept refugees. It’s possible that states will be able to override local governments. Take, for example, cities like Dallas, which has historically taken in many refugees but is located in Texas, which has previously sought to prohibit them.

The executive order would also create inconsistent refugee policies across the country, making it next to impossible for the federal government to properly plan for refugee settlement, Schacher said.

“We are one nation,” she said. “The idea that governors can direct where refugees can first resettle not only undermines federalism but divides us on a policy which is fundamentally a national one.”

Trump’s refugee policy reflects his broader attitude toward immigrants

The Center of Immigration Studies (CIS), which advocates for lowering immigration levels overall, has influenced many of the Trump administration’s restrictive immigration policies. The refugee cap is no exception.

The organization has gained influence in the Trump era, with some of its former researchers assuming senior positions in the administration. CIS threw support behind the movement to block Syrian refugees in 2016, casting doubt on whether the United Nations’ refugee office could actually vet them for security threats before they arrive in the US.

The organization has also claimed that the current system allows the federal government to impose too much financial burden on states to carry out refugee resettlement. And it has called into question why the US should dedicate resources to resettling refugees rather than focusing on the southern border.

Trump’s most recent refugee policy moves are “long overdue,” in particular his executive order allowing states the opportunity to refuse refugees, CIS senior researcher Nayla Rush writes.

“Refugees are not just parachuted into a void,” she said. “Positive reception and orientation are, therefore, necessary for a successful integration.”

It all fits in with one of the broader ideas guiding Trump’s immigration policy: that immigrants “exploit public assistance” without offering the US anything in return, Foydel said.

In the same vein, the Trump administration has published a rule, set to go into effect October 15, that would allow the Department of Homeland Security to weigh certain immigrants’ use of Medicaid, the Supplemental Nutrition Assistance Program, Section 8 housing assistance, and federally subsidized housing against them in their applications for green cards or visas. The rule will primarily affect a small proportion of family-based green card applicants, but immigrants are already disenrolling from public benefits out of fear that they will be penalized.

Trump has justified it as a means of ensuring that immigrants are “financially self-sufficient” and to “protect benefits for American citizens.”

“I am tired of seeing our taxpayer paying for people to come into the country and immediately go onto welfare and various other things,” Trump said when announcing the rule. “So I think we’re doing it right.”

Foydel said that Trump is trying to abdicate federal responsibility for the most vulnerable immigrants, forcing states that already serve as immigrant “sanctuaries” to step up. He threatened to release detained immigrants into sanctuary cities in April, and Thursday’s executive order also requires states that agree to receive refugees to publish their “consent letters” publicly, which some have questioned as a means of politically targeting immigrant-friendly areas.

“The positions of different states might be politicized and used to foment anti-refugee sentiment,” Schacher said.

It’s a mischaracterization to say that immigrants take advantage of welfare programs, Foydel said.

In her experience, refugees have no desire to be on public assistance for any longer than necessary and start working as soon as they can. She also pointed to research that refugees end up contributing more in taxes than what it costs to resettle them: on average, $21,000 among refugees who entered the US as adults between 2010 and 2014, according to the National Bureau of Economic Research.

“I think that there are a number of policies we’ve seen that have this language of economic self-sufficiency,” Foydel said. “It’s part of a false narrative about refugees and also immigrants more broadly exploiting public assistance when the data says it’s not true.”

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

Trump‘s cowardly attacks upon the world’s most vulnerable, aided and abetted by morally corrupt GOP policitos, and “masterminded” by neo-Nazi advisor Stephen Miller (taxpayers are actually supporting this evil clown — talk about abuse of public assistance!), ends what had been one of our most important and long-lasting bipartisan policy successes.

And, since much of the expertise and hard work that made the program so successful were contributed by NGOs and (real, not Trumpian) religious organizations, those programs are now being dismantled and the expertise and resources directed elsewhere. Literally decades of irreplaceable knowledge, expertise, and organizational talent has been lost almost overnight.

Even when a wiser, more humane, decent Administration finally wants to “restart” these critically important programs, it will be no easy task. It basically took nearly half a century to build up the current expertise. Once dissipated, it won’t be easily re-created – certainly not overnight. Obviously, there are serious, long-term consequences to allowing a kakistocracy to take over the government of our nation.

PWS

10-08-19

NICOLE NAREA @ VOX.COM: Here Are The Immigration Questions The Candidates Should Answer During Tonight’s Democratic Debate!

https://www.vox.com/2020-presidential-election/2019/9/12/20858374/immigration-questions-democratic-presidential-debate?utm_campaign=vox&utm_content=entry&utm_medium=social&utm_source=twitter

Democratic presidential candidates have mostly been able to avoid a substantive discussion of what immigration policy should look like. Expressing outrage over President Donald Trump’s policies has sufficed for debate soundbites.

That might be politically expedient; immigration is one of the top issues on voters’ minds, but also one of the most divisive. Being vague is a way to put off alienating various wings of the party until the primaries are over.

The candidates have tended to speak in platitudes, like when Amy Klobuchar said in the first debate, “Immigrants do not diminish America. They are America.” Beto O’Rourke and Cory Booker got mixed reviews for answering questions about immigration in Spanish in an attempt to show solidarity with Latino voters.

There was one moment that spurred numerous immigration think pieces. During the first debate in June, Julián Castro asked fellow candidates onstage to commit to repealing Section 1325 of the Immigration and Nationality Act, a provision in federal law that makes crossing the border without authorization a crime. But that moment stood out because it was unusually specific.

If a Democratic president makes “comprehensive immigration reform” a priority, as virtually all of the candidates have vowed, voters do not have much information about what that means. With a (mercifully) smaller pool of 10 candidates taking the stage for Thursday night’s upcoming debate, there might finally be more room to elaborate.

Here are five questions that moderators should ask to get a more expansive view of the candidates’ positions:

1. What immigration-related executive actions could we expect from your administration in your first 100 days?

The US Supreme Court has historically recognized the president’s broad powers over immigration, but Democrats have accused Trump of overstepping his executive authority with his unilateral, sweeping changes to immigration policy.

In the wake of Trump’s travel ban, when the president issued an executive order banning individuals from seven countries, Democrats in the House and Senate proposed a bill that would rein in the executive authority of all future presidents such that they could not issue any similar ban. House Democrats also filed a lawsuit challenging Trump’s declaration of a national emergency on the southern border, claiming that he could not invoke his emergency powers simply to circumvent Congress’ refusal to fully fund his border wall in its 2019 budget deal.

But limiting executive authority over immigration is a double-edged sword for Democrats. If Republicans retain control of the Senate as expected in 2020 and gridlock in Congress continues, a Democratic president’s only means of reversing the Trump administration’s immigration policies would be by executive fiat.

For that reason, candidates including Bernie Sanders, Kamala Harris, and Cory Booker rely heavily on executive actions in their immigration plans. For example, Booker would order the Department of Homeland Security on day one in office to bring detention centers into compliance with federal detention standards, and Sanders has said that his first executive action would be closing privately operated immigration detention centers.

Others have suggested executive actions they will pursue, but haven’t nailed down a timeline: Elizabeth Warren says she will first “work with Congress to pass broad-reaching reform” but is “prepared to move forward with executive action if Congress refuses to act.”

Joe Biden and Pete Buttigieg, meanwhile, have not made formal commitments to use executive authority to reverse Trump’s immigration policies.

While all of the candidates have promised wide-reaching, progressive change in immigration and across other issues, presidents only have so much time and political capital. After pushing through sweeping health care reforms with the Affordable Care Act, former President Barack Obama failed to pass a comprehensive immigration reform package in 2013.

So, asking the Democratic candidates to elaborate on their immigration priorities for their first 100 days will help determine whether the issue is actually a top priority for them.

2. What would your overall approach be to immigration enforcement on the US-Mexico border?

Republicans have accused Democrats of pushing for open borders. In reality, few go that far; some just think that crossing the border without authorization should not be a crime, as it is currently under Section 1325 of the Immigration and Nationality Act. Historically, most immigrants who cross the border illegally have never been prosecuted, but the Trump administration has begun doing so under its “zero tolerance” policy and cited those prosecutions as the basis of family separations.

Polls show that a majority of Americans oppose Trump’s border wall, but not all forms of border security: About three-quarters of the public support hiring “significantly more” border patrol agents and a third say that immigration levels should be decreased overall.

If voters’ attitudes toward border security are nuanced, Democrats’ border security plans should reflect that. To start, they will have to answer questions about how they will detain immigrants (if at all), what kinds of unauthorized immigrants might be targeted with limited enforcement resources, how much funding immigration enforcement agencies will get, and how they will reduce the backlog of cases in immigration court.

Democrats can agree that Trump’s method, which includes separating families in immigration detention and sending Central American migrants back to Mexico, is abhorrent. But how they would go about securing the border is a tricky question, and previous Democratic administrations have not exactly provided a good model.

Obama struggled to balance humanitarian concerns with border enforcement. As Trump has repeatedly noted, it is true that Obama did separate families in immigration detention, albeit on a much smaller scale than the current administration. Immigrant rights groups labeled him as the “deporter in chief” because he deported more immigrants than any other president — over 385,000 in fiscal years 2009 to 2011 and peaking at 409,849 in fiscal 2012 (though former Obama officials have defended that the administration only targeted recent arrivals and violent criminals).

Five years later, Democrats are still wrestling with how they will approach immigration enforcement, tackling it piecemeal for now.

The idea of abolishing US Immigration and Customs Enforcement has gained the most attention in advocacy circles. Elizabeth Warren has endorsed the “Abolish ICE” movement, and Kamala Harris has also pushed for major changes to the agency, suggesting that the federal government should “probably think about starting from scratch.” Castro has backed the decriminalization of unauthorized border crossings, challenging his opponents to do the same during a Democratic debate in June.

3. How many refugees should the US aim to resettle?

This is a simple, numerically based question that can help voters gauge the candidates’ commitment to reestablishing the US’s reputation as a world leader in protecting the most vulnerable immigrant populations. So much of the conversation around refugees and asylees in the debates so far has been dominated by denouncing Trump’s policies, so it would be useful to force the candidates to commit to hard numbers of how many they would admit.

Historically, the US has taken in more refugees, about 3 million since 1980, than any other nation. But the US has scaled back its refugee program under Trump, lowering the cap on refugees admitted to the US from 110,000 in fiscal year 2017 to 30,000 in fiscal year 2019 — the lowest number since the Refugee Act was signed into law in 1980. And the Trump administration is expected to cut refugee admissions even further.

Some Democratic presidential candidates have proposed elevating the refugee cap as part of their immigration plans. Booker and Castro have proposed reverting to the pre-Trump refugee cap of 110,000, but Elizabeth Warren would go even further, setting the cap at 125,000 initially and increasing it to 175,000 by the end of her first term.

4. How would you work with governments in Central America to reduce factors driving migrants away from their home countries?

In light of declining migrant arrests, Trump may claim that he is delivering on his promise to secure the southern border, but it’s not so clear that his policies have done anything to address the underlying problem: unprecedented numbers of migrants fleeing Central America. This question would illuminate how Democrats would reduce push factors and think not just about a border crisis but a regional crisis.

Previously, migrants arrested at the southern border were primarily single adult males from Mexico. But since the summer of 2018, there has been a fundamental change in migration patterns: Now, it is primarily Central American children and families.

Castro and Booker have proposed significant aid packages, but Democrats would also likely need to smooth over political tensions with Mexico and the “Northern Triangle” countries of Guatemala, Honduras, and El Salvador in Trump’s wake.

In June, Trump had threatened to impose tariffs on all Mexican goods if it did not step up its immigration enforcement efforts.

And acting US Customs and Border Protection Commissioner Mark Morgan told reporters Monday that Trump is pressuring Northern Triangle countries to adopt agreements that would effectively cut off migrants before they reach the US. The so-called Safe Third Country agreements would make any migrant who passes through those countries ineligible to apply for asylum in the US.

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

Nice, very timely, analysis, Nicole!

Also, many, many congrats on your new home over at the vox.com Immigration Desk!

PWS

09-12-19

ROUNDTABLE NEWS: Judge Jeff Chase & I Quoted By Nicole Narea In Law360 On How Trump’s Latest Assault On Immigrants’ Rights Could Go Belly Up Even With Some Statutory Support!

https://www.law360.com/immigration/articles/1182014/deportation-rule-may-violate-due-process-procedural-law

Deportation Rule May Violate Due Process, Procedural Law

By Nicole Narea

Law360 (July 25, 2019, 8:31 PM EDT) — The Trump administration’s recent expansion of its power to fast-track deportations is likely to invite legal challenges if the new process is seen as a violation of administrative law and the Constitution’s due process guarantees.

Under a rule published Monday, unauthorized noncitizens across the entire U.S. — not just those apprehended within 100 air miles of a land border — who arrived in the last two years via a land border could be subject to expedited removal proceedings and deported without an immigration court hearing. The American Civil Liberties Union has vowed to challenge the rule, which went into effect Tuesday and, by the U.S. Department of Homeland Security’s estimates, will affect more than 20,000 immigrants a year.

Contrary to the Trump administration’s claims, however, the rule may not qualify for an exception to the Administrative Procedure Act’s public notice requirements that allows the DHS secretary to unilaterally change the scope of the agency’s expedited removal authority. It also raises due process concerns for individuals who may not be able to prove their period of residency in the U.S. and for asylum-seekers who might be erroneously subject to expedited deportation.

“Unleashed expedited removal undermines our immigration system and the rule of law,” said Shoba Wadhia, a professor at Penn State Law in University Park.

Administrative Procedure Act

To justify the rule, acting DHS Secretary Kevin McAleenan invoked his authority under the Immigration and Nationality Act to have “sole and unreviewable discretion” to alter the scope of expedited removal proceedings. The rule is therefore exempt from the Administrative Procedure Act’s requirement to give the public an opportunity to comment on it before it goes into effect, DHS said in its announcement.

But Paul Schmidt, former chairman of the Board of Immigration Appeals during the Clinton administration, said there “does not appear to be any legitimate reason” for noncompliance with the APA’s notice-and-comment requirements, especially given that the rule had such a long gestation period. Trump has been considering such a rule since the first days of his administration.

Wadhia said opponents of the rule could argue that the government failed to show “good cause” that invoking notice and comment is in fact “impracticable, unnecessary, or contrary to the public interest” as the APA requires.

“The government’s position that there is a ‘good cause’ lacks integrity,” she said.

Most lawsuits that have succeeded in challenging Trump immigration policies have brought claims under the APA, including the recent challenge to a question about citizenship status on the 2020 census. The U.S. Supreme Court ultimately found that the decision to include the question on the census did not abide by the APA’s requirement that agencies provide a reasoned explanation for their actions.

Due Process Issues

Ken Johnson, dean of University of California, Davis School of Law, said the new rule could also be subject to due process challenges in light of the Supreme Court’s 1982 case Landon v. Plasencia, in which the justices applied a balancing test of interests in deciding the constitutionality of immigration admission procedures. That decision established that the interests of a noncitizen who has lived in the country for two years are much weightier than the interest at stake for a noncitizen who has been in the country for only two weeks because they have stronger ties to their community, he said.

Since the new rule expands expedited removal to apply to individuals who have lived in the U.S. for up to two years, they may be entitled to a higher standard of due process. Trump’s expansion of expedited removal also appears to exceed the limits provided by the Immigration and Nationality Act, resulting in further due process concerns.

Jeff Chase, a former legal adviser to the BIA and immigration judge, said the original intent of expedited removal was to stem an increase of inadmissible noncitizens arriving at airports in the 1990s who were paroled into the U.S. after announcing they were seeking asylum. The new rule, however, far surpasses that purpose.

“The present rule extends the application well beyond the purpose of controlling entry to the country, and now threatens to deprive those already here of their rights to apply for relief,” he said.

He said he also anticipates that expedited removal will be mistakenly applied to those beyond the scope of the rule, impacting those with a period of residence longer than two years, whose “attempts to stay under the government’s radar will create difficulty meeting their burden of establishing their period of residence in the U.S.”

Wadhia said that genuine refugees may also be erroneously denied due process, turned away as opposed to referred to an asylum officer to determine whether they have fear of persecution in their home countries, as required by law. Even if they have a credible fear interview, they are unlikely to pass in light of reports that asylum officers have been pressured to significantly lower their credible fear approval rates, Chase said.

Even U.S. citizens, lawful permanent residents, unaccompanied children and others who are exempt from expedited removal by statute could be unfairly and unlawfully targeted by the DHS, Wadhia said.

“The opportunity for profiling and violations of due process by DHS is rampant,” she said.

–Editing by Breda Lund and Kelly Duncan.

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

The Government’s case for an “emergency” exemption to the APA is laughable. This bogus “immigration emergency” is actually a human rights tragedy that has been unfolding in “super slow motion” before us since before last Thanksgiving. Virtually every part of it is a predictable result of Trump’s “maliciously incompetent” racist-driven approach to migration situations. To say that it now requires an “emergency” exemption, when Trump announced the proposed policy change in an Executive Order over two years ago, and his incompetent agencies have been fiddling around with it ever since, is simply absurd.

The Constitutional problem raised by Dean Johnson and others is very real.

And, there is no question that Trump’s DHS will misuse this authority to detain and deport lawful permanent residents and even U.S. citizens. Indeed, it’s already happening even without the regulatory change. See, e.g., “Texas-Born Student Held In Immigration Custody For Weeks Released,” https://www.huffpost.com/entry/texas-student-immigration-custody-detention_n_5d36f637e4b020cd99498588.

Yes, some Federal Judges can be tone deaf to the plight of ordinary individuals, particularly when they wrongly think that they are “above the fray.”

Perhaps we need to hope that the DHS wrongfully detains a Federal Judge, a Federal Judge’s spouse, or the child of a Federal Judge so that the message about how Trump’s misguided policies affect ALL of us gets through to the “Judicial Ivory Tower” sooner, rather than later.

PWS

07-26-19

“ABSURD, FARCE” — Chase, Musalo, Other Asylum Experts Lambaste Trump’s Scheme To Designate One Of World’s Most Dangerous Counties, Without A Functioning Asylum System, As “Safe” For Asylum Seekers!

https://www.law360.com/articles/1170313/guatemala-is-not-as-safe-for-asylum-seekers-as-trump-says

Professor Karen Musalo
Director, Center for Gender & Refugee Studies, Hastings Law

Nicole Narea reports for Law360:

. . . .

Trump tweeted Monday night that Guatemala is “getting ready to sign” a socalled safe third country agreement with the U.S., and he lauded Mexico for “using their strong immigration laws” to stop migrants well before they reach the southern U.S. border. Mexico said Friday it would also weigh a safe third country agreement with the U.S. if its efforts to ramp up immigration enforcement as part of a trade deal do not succeed within 45 days.

The announcements came as the Trump administration moved to reduce its obligations to asylum seekers by expanding its “Remain in Mexico” policy, officially known as the Migrant Protection Protocols, by which migrants are sent back to Mexico while they await hearings in U.S. immigration court.

As for Guatemala, experts have protested that Mexico’s southern neighbor cannot offer asylum seekers the kind of security intended by a safe third country agreement.

But the Trump administration is not proposing such an agreement with Guatemala because it believes the country to be safe, said Jeffrey Chase, a former immigration judge and ex senior legal adviser to the Board of Immigration Appeals. Rather, the White House believes the accord will stop asylum seekers from countries farther south from entering the U.S., Chase said.

Migrants from El Salvador and Honduras have to travel through Guatemala en route to the U.S., and if Guatemala were subject to such an agreement, the Trump administration would have an “excuse to turn away those fleeing violence in those countries,” he said.

Karen Musalo, the founding director of the Center for Gender and Refugee Studies at University of California, Hastings College of the Law, said that to call Guatemala safe is absurd.

“I don’t think that anyone familiar with the human rights situation in Guatemala — with its extremely high levels of homicides, femicides, gender violence, gang and organized crime violence, corruptions, etc. — could say with a straight face that asylum seekers would be safe there,” she said.

. . . .

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

Those with access to Law360 can read Nicole’s complete article at the above link.

It isn’t just that Trump (supported by some equally dishonest and nasty GOP legislators and flunkies like Mike Pence, Mike Pompeo, Ken “Cooch Cooch” Cuccinelli, and Kevin McAleenan) is blatantly lying about asylum seekers and Guatemala being “safe.” What he essentially proposes is the U.S.-sanctioned murder of innocent asylum seekers from the Northern Triangle.

Why is this outrage against the law and humanity “below the radar screen?” Seems like it’s actually the most clear “impeachable offense” that Trump has committed to date. And, it’s right out in plain view for all to see, with irrefutable proof that Guatemala is NOT a safe country for anyone, let alone asylum seekers. That’s exactly why folks are fleeing Guatemala for their lives every day.

PWS

06-21-19

EOIR SHAKEUP: Chief Immigration Judge, Deputy Director, General Counsel Ousted!

By Paul Wickham Schmidt for Immigrationcourtside.com

Alexandria, VA, June 8, 2019. The nation’s totally dysfunctional and highly politicized Immigration Court System, known as the Executive Office For Immigraton Review (“EOIR”), has ousted three of its top career senior executives, according to a report filed yesterday by Nicole Narea of Law360. Here’s a link to Narea’s story for those with Law360 access. https://www.law360.com/articles/1166974/three-senior-eoir-officials-to-step-down.

Evidently, Chief Immigration Judge MaryBeth T. Keller, General Counsel Jean King, and Deputy Director Katherine H. Reilly all “got the boot” late this week. They are career civil servants. Keller and King were “holdovers” from the prior Administration, while Reilly was appointed to her recent position by former Attorney General Jeff Sessions.

Piecing together bits from anonymous sources, it’s likely that the three clashed with EOIR Director James McHenry and Department of Justice (“DOJ”) politicos over some of the more extreme aspects of the Administration’s “master plan” to demean and degrade Immigration Judges and Appellate Immigraton Judges at the Board of Immigration Appeals, strip them of the last vestiges of judicial independence and docket control, and return the Immigration Courts to their pre-EOIR status as perceived appendages of DHS (then INS) enforcement.

Keller supposedly “retired,” an unusual move given her age group and that senior executives are the civil service equivalent of brigadier generals. King was transferred to the Office of the Chief Administrative Hearing Officer (OCAHO”), long known as the “Siberia of EOIR” and a repository for prior senior executives who had fallen out of favor with “EOIR Management” and their DOJ “handlers.” Reilly reportedly transferred to a senior executive position with the U.S. Postal Service (“USPS”), another surprising move for a top senior executive attorney at the DOJ.

Predictably, there has been no official announcement from EOIR or the DOJ, nor have any replacements been named. Meanwhile, the backlog mushrooms, morale sinks further, conditions continue to deteriorate, and due process and fundamental fairness are mocked every day in the EOIR “courts” and also by life-tenured Article III Judges who are willing to “rubber stamp” the results of this patently illegal and unjust system.

Keller, King, and Reilly have “escaped from the circus.” But, hopefully there someday will be accountability for those throughout government and the Article III Courts who continue to participate in, enable, and further this ongoing farce and the resulting gross perversion of American law and human values.

“CBS HOUR” IS A BIG HIT AT FBA/NY LAW SCHOOL ASYLUM CONFERENCE — Chase, Bookey, Schmidt Entertain, Educate Sell-Out Crowd!

Hon. Jeffrey S. Chase

Blaine Bookey, Co-Director, Center for Gender & Refugee Studies, Hastings Law

“Eric the Cameraman”

NEW YORK, NY, Friday, March 8, 2019. The “CBS Team,”* Jeffrey S. Chase, Blaine Bookey, and Paul Wickham Schmidt wowed the sellout crowd at the FBA Asylum Conference at NY Law School Friday. Speaking in the coveted “final slot” of the afternoon, the “CBS Gang” gave an enthusiastic audience lots of reasons and ways to go out and oppose former Attorney General Sessions’s perversion of American asylum law in Matter of A-B-.

In that case, Sessions reversed nearly two decades of progress and consensus in asylum law to “stick it” to Ms. A-B-, a survivor of extreme domestic violence persecution in El Salvador who fled to the U.S., escaping torture and death threats.

Schmidt, a former Immigration Judge in Arlington, Virginia and past Chairman of the Board of Immigration Appeals, led off with a rousing speech blasting Sessions for bias, intellectual dishonesty, and bad lawyering. He agreed with U.S. District Judge Emmet G. Sullivan in the recent case Grace v. Whitaker that much of what Sessions said was non-binding dicta.

Schmidt also formulated seven ways for advocates to challenge the decision. He brought the crowd to its feet with his closing exhortation to what he called the New Due Process Army: “Due Process forever, xenophobia never!”

Bookey, Co-Director of the Center for Gender and Refugee Studies at Hastings Law and a long time refugee advocate, appeared “larger than life” from California through the “miracle of televideo.” She showed a moving video of Ms. A-B- relating the horrible rape, beatings, death threats and abandonment by her government that forced her to leave El Salvador and her fear that she would be killed upon return.

Bookey also pointed out that this isn’t a mere “difference of opinion” among lawyers. Rather, Matter of A-B- is a concerted and evil attempt to undo an existing national and international legal consensus that women facing domestic violence can and must be protected under refugee law. The reversion sought by Sessions and his restrictionist supporters would basically return women to the “dark ages” and result in torture, death, maiming and rape of countless females by persecutors throughout the world. Bookey also offered the Center for Refugee and Gender Studies at Hastings as a “clearinghouse” for litigation and litigation strategies attacking A-B-.

Batting “clean up,” retired Immigration Judge and noted asylum historian Chase led the audience in a tribute for Bookey’s “in the trenches” heroism in staunchly defending the rights of refugee women throughout our nation and the world. He then proceeded to eviscerate Sessions’s decision by going through Ms. A-B-‘s actual evidence in detail.

He pointed out how Sessions ignored facts of record supporting a grant of asylum to Ms. A-B- on the merits regardless of the favorable BIA precedent that Sessions went to great lengths to overrule. He also mentioned the ongoing efforts of “Our Gang” of retired U.S. Immigration Judges, assisted pro bono by some of America’s best lawyers, to educate the Article III Courts as to the realities of asylum adjudication and the systemic destruction wrought by Sessions’s unprovoked attack on women’s asylum rights.

The Conference concluded with a request by FBA immigration Section Chair Elizabeth “Betty” Stevens for everyone to contract their Senators and Representatives about the need for an independent Article I U.S. Immigration Court as proposed by the FBA, ABA, National Association of Immigration Judges, AILA, and others.

Netflix filmed the proceedings for a future documentary about American immigration. Additionally, star immigration reporter Nicole Neara of Law 360 was in the audience. Immediately following the closing, Conference organizer and NY Law School Professor Claire “Human Dynamo” Thomas left for the Southern Border with a group of students committed to putting into effect what they had learned about strategies for ensuring due process and re-establishing justice in the U.S. asylum system.

*The “CBS Hour,” “CBS Team,” and “CBS Gang” have no relationship to the CBS Network, CBS Broadcasting, CBS Sports, CBS News, or any other legitimate organization.

Here’s the video featuring Ms. A-B-:

https://cgrs.uchastings.edu/news/cgrs-and-hrw-release-video-call-government-restore-protections-domestic-violence-survivors

And, here’s the text of my speech:

FEDERAL BAR ASSOCIATION ASYLUM CONFERENCE

NEW YORK LAW SCHOOL

March 8, 2019

Good afternoon, and thanks so much for inviting me. In the “old days,” I would have started with my comprehensive disclaimer. But, now that I’m retired, I’m just going to hold the FBA, New York Law School, my fellow panelists, and anyone else of any importance whatsoever “harmless” for my remarks today. They are solely my views, for which I take full responsibility. No sugar-coating, no bureaucratic doublespeak, no “party line,” no BS – just the unvarnished truth, as I see it!

“We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence; therefore they are entitled to enter the United States. Well, that’s obviously false but some judges have gone along with that.”

“Good lawyers, using all of their talents and skill, work every day—like water seeping through an earthen dam—to get around the plain words of the INA to advance their clients’ interests. Theirs is not the duty to uphold the integrity of the act. That is our most serious duty.”

“When we depart from the law and create nebulous legal standards out of a sense of sympathy for the personal circumstances of a respondent in our immigration courts, we do violence to the rule of law and constitutional fabric that bind this great nation. Your job is to apply the law — even in tough cases,”

Those, my friends, are obviously not my words. Whose words are they? They are the words of former Attorney General Jeff Sessions who ran the U.S. Immigration Courts for nearly two years.

Incredibly, this totally biased, xenophobic, misinformed, and glaringly unqualified individual, who had actually been rejected for a Federal Judgeship by his own party because of alleged racial bias, was in charge of our U.S. Immigration Court system. That helps explains why it is such a total disgraceful mess today from both a Due Process and administrative standpoint.

The Immigration Courts have a “known backlog” of over 1.1 million cases, with tens, perhaps hundreds, of thousands of additional cases likely squirreled away and still unaccounted for following the unnecessary “shutdown,” no signs of abating, and absolutely no, I repeat no, credible planfor reducing or controlling the backlog consistent with Due Process and our asylum laws. The DOJ’s process for increasing the backlog, known as “Aimless Docket Reshuffling” – and their outrageous attempts to “shift the blame” to respondents and their attorneys – are, as my esteemed former colleague retired Judge M. Christopher Grant used to say, “on steroids.” And, as my friend and fellow panelist, Judge Jeffrey Chase pointed out this week to BuzzFeed News, the current “strategy shift” to slowing down judicial and court staff hiring and abandoning once again the “e-filing program” that EOIR has failed to roll out after two decades of failed efforts is a guarantee that: “More people will wait longer!”

Acting Attorney General Whitaker’s questionable certification of two important cases during his brief tenure promises a continuation of political interference with the Immigration Courts in derogation of Due Process.

Don’t expect any improvement under current Attorney General Bill Barr. He’s known as an “enforcement solves all problems” immigration hard liner who co-authored an article praising Sessions for his attacks on Civil Rights, immigrants, and other vulnerable communities.

One of Sessions’s most cowardly and reprehensible actions was his atrocious distortion of asylum law, the reality of life in the Northern Triangle, and Due Process for migrants in Matter of A-B-. There, he overruled the BIA’s important precedent in Matter of A-R-C-G-, a decision actually endorsed by the DHSat the time, and which gave much need protection to women fleeing persecution in the form of domestic violence.

Take it from me, Matter of A-R-C-G-was one of the few parts of our dysfunctional Immigration Court system that actually workedand provided a way of moving cases efficiently through the court system in accordance with Due Process while consistently granting much needed protection to some of the most vulnerable and most deserving refugees in the world!

Sessions is gone. But, his ugly legacy of bias and unfairness remains. Fortunately, because he was a lousy lawyer on top of everything else, he failed to actually accomplish what he thought he was doing: wiping out protection for refugee women, largely from Central America. That’s why it’s critically important for you, as members of the “New Due Process Army” to fight every inch of the way, for as long as it takes, to restore justice and to force our U.S Immigration Courts to live up to their unfulfilled, and now mocked, promise of “guaranteeing fairness and Due Process for all!”

The only real,Article IIIFederal Judge who has ruled on Matter of A-B-to date largely supports my criticisms of Sessions’s effort to distort asylum law against refugee women. It’s a decision written by U.S. District Judge Emmet G. Sullivan in Washington, D.C. called Grace v. Whitaker. You will want to read that decision. There is also an outstanding analysis by my fellow panelist Judge Jeffrey S. Chase on his blog.

Unfortunately, but not unexpectedly, EOIR has purported to limit Grace’s rejection of Matter of A-B-to so called “Credible Fear Reviews.” In other words, they have improperly, and perhaps unethically, instructed Immigration Judges and the BIA not to apply Gracein individual asylum hearings.

But, that shouldn’t stop you from shoving Grace back down their throats! There is an outstandingonline practice advisory on how to argue Gracein Immigration Court by my fellow panelist Blaine’s amazing colleague, my good friend Professor Karen Musalo. I also reposted it in my blog, immigratoncourtside.com.

I’m going to give you sevenvery basic tips for overcoming Matter of A-B-. I’m sure that Blaine and her colleagues, who are much more involved in the day to day litigation going on in the courts than I am, can give you lots of additional information about addressing specific issues.

First, recognize that Matter of A-B- really doesn’t change the fundamental meaning of asylum.It just rejected the way in which the BIA reached its precedent in A-R-C-G-— by stipulation without specific fact-findings based on the administrative record. Most of it is mere dicta.

On a case by case basis, domestic violence can still be a proper basis for granting asylum in many cases. Indeed, such cases still are being granted by those Immigration Judges committed to following the rule of law and upholding their oaths of office, rather than accepting Sessions’s invitation to “take a dive.”

Just make sure you properly and succinctly state your basis, establish nexus, and paper the record with the overwhelming amount of reliable country condition information and expert opinion that directly contradicts the bogus picture painted by Sessions.

Second, resist with all your might those lawless judges in some Immigration Courts who are using, or threatening to use, Sessions’s dictum in Matter of A-B- to deny fair hearings or truncate the hearing process for those claiming asylum through domestic violence.If anything, following the overruling of A-R-C-G-,leaving no definitive precedent on the subject, full, fair case-by-case hearings are more important than ever. Under Due Process, asylum applicants are entitled to a full and fair opportunity to present their claims in Immigration Court. Don’t let wayward, biased, or misinformed Immigration Judges deny your clients’ constitutional and statutory rights.

Third, keep it simple. Even before A-B-, I always said that any proposed “particular social group” (“PSG”) longer than 25 words or containing “circular” elements is D.O.A. I think that it’s time to get down to the basics; the real PSG here is gender! “Women in X country” is clearly a cognizable PSG. It’s undoubtedly immutable or fundamental to identity; particularized, and socially distinct. So, it meets the BIA’s three-part test.

And, “gender” clearly is one of the biggest drivers of persecution in the world. There is no doubt that it is “at least one central reason” for the persecution of women and LGBT individuals throughout the world.

As Judge Chase and I recently reported on our respective blogs, a number of these “women as a PSG” cases have succeeded in the “Post-A-B-Era.” The detailed unpublished analyses by Immigration Judges are available online and, although of course not precedents, should give you helpful ideas on how to construct arguments and rebut ICE attempts to invoke A-B- to bar meritorious asylum claims by abused women.

Fourth, think political. There is plenty of recent information available on the internet showing the close relationship between gangs and the governments of the Northern Triangle. In some cases, gangs are the “de facto government” in significant areas of the country. In others, gangs and local authorities cooperate in extorting money and inflicting torture and other serious harm on honest individuals who resist them and threaten to expose their activities. Indeed, a very recent front-page article in the Washington Postpointed out that gangs are so completely in charge in El Salvador that U.S-trained policemen are forced to flee and seek asylum in the United States. Additionally, gangs are the largest employer in El Salvador.

In many cases, claiming political or religious persecution should be a stronger alternative ground than PSG. As one of my friends recently pointed out, because of the incorrect precedents by the BIA, Immigration Judges almost always reject gang cases as actual or imputed political opinion. That’s plain wrong.

We need to start making the record and fighting back, using the large amount of available evidence and expert testimony on how gangs have infiltrated and influence every aspect of life in the Northern Triangle including, of course, politics and government. It’s time for the “EOIR charade” of “let’s not grant gang-based asylum cases” to end, once and for all.

Fifth, develop your record. The idea that domestic violence and gang-based violence is just “common crime” advanced by Sessions in A-B-is simply preposterous with regard to the Northern Triangle. Establish records that no reasonable factfinder can refute or overlook! Use expert testimony or expert affidavits to show the real country conditions and to discredit the watered down and sometimes downright false scenarios set forth in Department of State Country Reports, particularly under this Administration where integrity, expertise, and independence have been thrown out the window.

Sixth, raise the bias issue. As set forth in a number of the Amicus Briefs filed in Matter of A-B-, Sessions clearly was a biased decision maker. Not only had he publicly dismissed the claims of female refugees suffering from domestic violence, but his outlandish comments spreading false narratives about immigrants, dissing asylum seekers and their “dirty lawyers,” and supporting DHS enforcement clearly aligned with him with one party to litigation before the Immigration Courts. By the rules governing judicial conduct there was more than an “appearance of bias” here – there was actual bias. We should keep making the record on the gross violation of Due Process caused by giving a biased enforcement official like Sessions a quasi-judicial role.

Seventh, and finally, appeal to the “real” Article III Courts.I can’t over-emphasize this point. What’s happening in Immigration Court today is a parody of justice and a mockery of legitimate court proceedings. It’s important to “open the eyes” of the Article III Judges to this travesty which is threatening the lives of legitimate refugees and other migrants.

Either the Article III’s do their jobs, step in, and put an end to this “theater of the absurd,” or they become complicitin it. There’s only one “right side of the law and history” in this fight. Those who are complicit must know that their actions are being placed in the historical record – for all time and for their descendants to know – just like the historical reckoning that finally is happening for so- called “Confederate Heroes” and those public officials who supported racism and “Jim Crow.”

Now is the time to take a stand for fundamental fairness, the true rule of law, and simple human decency! Join the New Due Process Army and fight to vindicate the rights of asylum seekers under our laws against the forces of darkness and xenophobic bias! Due process forever! Xenophobia never!

(03-11-19)

PWS

03-12-19

“OUR GANG” LEADER HON. JEFFREY S. CHASE QUOTED BY NICOLE NAREA IN LAW 360 RE: L-A-B-R- MESS!

But Jeffrey Chase, a former immigration judge and senior legal adviser to the BIA, said that the attorney general’s ruling is more likely to hinder efficient case adjudications. He said that immigration judges are already facing pressure to meet case completion quotas imposed by the Executive Office of Immigration Review earlier this year, and they have been forced to double-book hearings, meaning that cases will, by necessity, have to be continued.

“Under this latest ruling, judges will now have to write lengthy, detailed decisions for each continuance, an unrealistic expectation where judges must also complete three or more full hearings a day,” he said. “Some judges report receiving 10 or more motions for continuance a day, and lack the time and resources to write lengthy decisions on each while also hearing a full docket of cases.”

. . . .

Chase said that the decision’s “emphasis on efficiency over justice is particularly callous” given that, for many asylum applicants in immigration court, deportation may be a “death sentence.” He also pointed out that the decision does not seem to apply to continuances requested by U.S. Immigration and Customs Enforcement.

“It is unfair to require noncitizens seeking immigration status to demonstrate good cause for a continuance, while allowing ICE continuances for avoidable reasons such as misplacing the file, failing to obtain a needed document or not having adjudicated a petition in time,” he said.

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

Those of you with access can read Nicole’s full article over at Law 360.

Of course as Judge Chase says L-A-B-R- will not “promote judicial efficiency.” Far from it!

Immigration Judges will have to spend more time writing decisions to justify granting, as well as denying, continuances. That means less time for merits cases. The BIA will see an increase in “interlocutory appeals” from both sides, but particularly from DHS. Again, this takes time away from work on the merits appeals, which is why the BIA quite properly discouraged such interlocutory appeals in the first place. And, denial of a continuance to a respondent, particularly when it involves finding an attorney, attorney preparation, or obtaining evidence or witnesses, is an appealable due process issue on petitions for review to the Article III courts. Consequently, expect plenty of remands from the Circuit Courts as Immigration Judges and BIA Appellate Immigration Judges are pushed to churn out more denials and final orders of removal under Sessions’s “tilted field” approach.

As Jeffrey also points out, DHS requests and gets many continuances for routine matters like failure to have files or missing evidence to support the charges. Moreover, in L-A-B-R- Sessions totally ignores one of the main culprits for today’s backlog: Aimless Docket Reshuffling” (“ADR”) by EOIR often to accommodate the enforcement aims of DHS or politicos at the DOJ.

“Just pedal faster gimmicks” and having unqualified politicos tell judges how to manage dockets and run their courtrooms are a prescription for failure. The only question is how big the train wreck caused by this hunk of Sessions’s malfeasance will be!

Thanks for speaking out, Jeffrey. And thanks for your coverage, Nicole.

PWS

08-21-18

LAW360: BIA REMOVES IMMIGRATION JUDGE FOR ABUSIVE CONDUCT DURING HEARING!

https://www.law360.com/articles/999284/judge-s-hostile-and-bullying-acts-prompt-new-hearing

Kevin Penton reports for Law360:

“Law360, New York (January 5, 2018, 9:27 PM EST) — The Board of Immigration Appeals has vacated an immigration judge’s denials of a Salvadoran native’s bids to secure asylum and to duck deportation, after finding that the judge used “hostile and bullying behavior” toward the individual’s attorney.

The BIA wants a different judge to review the case, essentially from scratch, after finding that the Immigration Judge Quynh V. Bain “screamed” at the lawyer for more than five minutes, mimicked her voice, called her “several disrespectful names,” said she was “unprofessional” and refused to allow a recess…”

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

Those with complete Law360 access can read Penton’s full story at the link. Kudos to the BIA for “stepping up” to stop such abuses and protect due process!

Surprisingly, and sadly, Judge Quynh V. Bain is one of my former colleagues at the U.S. Immigration Court in Arlington, Virginia. The Arlington Immigration Court generally has had a well-deserved reputation for fairness, professionalism, respect, teamwork, and unfailing courtesy. In other words, it’s always been a court where lawyers on both sides enjoy practicing. Indeed, it often serves as a “training court” for student attorneys, interns, new Assistant Chief Counsel, and newly appointed U.S. Immigration Judges. So, I’d have to assume that this was an aberration in the context of Arlington.

Nevertheless, given the high stress levels that U.S. Immigration Judges are already working under, the plans of Attorney General Jeff “Gonzo Apocalypto” Sessions to “torque up” the pressure on Immigration Judges to turn our final orders of removal without much, if any regard, for due process, the counter-pressure from the U.S. Courts of Appeals for Immigration Courts to function like “real” courts, the many newly appointed inexperienced Immigration Judges, and the lack of meaningful training for Immigration Judges, I would expect such incidents to increase in the future. Just another reason why it’s past time for an independent Article I U.S. immigration Court!

Changing to the topic of Law360, one of my favorite “immigration beat” reporters, Allissa Wickham (a/k/a the fabulous “AWick”) tells me that she has left Law360 for a “new gig” with HBO, working on a show featuring Wyatt Cenac (formerly of the “Daily Show”). The show is scheduled to air this spring. Allissa says that she will continue to do original reporting, so hopefully at least some immigration topics will find their way into her “portfolio.” Good luck Allissa, and thanks for all of your great immigration reporting, clear writing, and many contributions while at Law360!

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PWS

01-06-18

Allissa Wickham @ Law 360 Reports That DACA Is Alive & Well — At Least For Now!

Over 120K DACA Applicants Approved So Far This Year

By Allissa Wickham

Law360, New York (June 9, 2017, 8:34 PM EDT) — More than 120,000 applications for Deferred Action for Childhood Arrivals were approved in the first three months of this year, according to government statistics released Thursday, with the development coming as the Trump administration continues to hold off on making changes to the program.

From January to March, 124,799 DACA cases were approved, according to data from U.S. Citizenship and Immigration Services, with 17,275 initial applications and 107,524 renewals.

The data isn’t broken down on a month-by-month basis, and a USCIS representative told Law360 that the…

To view the full article, register now.

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Alas, if you wish to read more from the fabulous “AWick,” you’ll need to be a subscriber to Law 360. But, you get the idea.

PWS

06-10-17

Due Process Forever!

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