"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals PAUL WICKHAM SCHMIDT and DR. ALICIA TRICHE, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
I am excited to announce two recent Immigration Clinic wins!
1) On December 4th, Judge Deepali Nadkarni of the Arlington Immigration Court granted administrative closure in an Immigration Clinic case. The client, A-M-, and his wife, P-M-, are both represented by the Clinic in their respective cases. P-M- has pending U and T visa applications before USCIS, which are for victims of crimes and trafficking victims, respectively. P-M-‘s applications are based on horrific childhood sexual abuse she suffered at the hands of her stepfather. A-M- is a derivative on P-M-‘s application; however, A-M- is in removal proceedings and Immigration Judges do not have jurisdiction over these types of applications.
Judge Nadkarni commented on student attorney, Samuel Thomas, JD ’20, “very large” filing and issued a written decision a few weeks after a brief hearing. A-M- will now be able to stay in the U.S. with P-M- and their three small U.S. citizen children while they wait for a decision on the U and/or T visas.
Please join me in congratulating student-attorneys Samuel Thomas, who filed the motion for admin closure, and Madeleine Delurey, JD ’20, who filed the U and T visas for P-M-!
2) On December 23, 2019, I won a hearing for Cancellation of Removal for Certain Permanent Residents for our client, M-D-C-. M-D-C-, born in Chile, has been a permanent resident for over 29 years but was put into removal proceedings because of several criminal convictions in his record, the last of which took place 15 years ago. M-D-C- is currently on a heart transplant list and has very close relationships with his U.S. citizen wife and daughter. In fact, his daughter, C-D-C-, stated in her affidavit, “I owe a lot of the woman I have become and am to [my dad] and I love him with my whole heart.” Immigration Judge Wynne P. Kelly called the case “close” and said that he was “granting by a hair” after a three-hour hearing where both wife and daughter testified.
Please join me in congratulating Clinic alum, Chris Carr, JD ’17, and student-attorney, Amy Lattari, JD ’20, who both worked on the case with me. A special shout-out goes to Clinic alumna, Anam Rahman, JD ’12, who assisted in mooting M-D-C- and family.
Best,
—
Paulina Vera, Esq.
Professorial Lecturer in Law
Acting Director, Immigration Clinic (Academic Year 2019-2020)
Legal Associate, Immigration Clinic
The George Washington University Law School
2000 G St, NW
Washington, DC 20052
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Many congrats Paulina, Samuel, Madeline, Chris, Amy, and Anam! Due Process is indeed a team effort!
As a number of us in the Round Table of Former Immigration Judges have observed, even under today‘s intentionally adverse conditions, justice is still achievable with 1) access to well-qualified counsel, and 2) fair, impartial, and scholarly Immigration Judges with the necessary legal expertise.
Unfortunately, the Trump Regime, in its never-ending “War on Due Process,” has worked tirelessly to make the foregoing conditions the exception rather than the rule.
Hats off once again to Judge Deepali Nadkarni who resigned her Assistant Chief Judge position to go “down in the trenches” of Arlington and bring some much-needed fairness, impartiality, scholarship, independence, and courage to a system badly in need of all of those qualities!
This also shows what a difference a courageous Circuit Court decision standing up against the scofflaw nonsense of Jeff Sessions and Billy Barr, rather than “going along to get along,” can make. One factor greatly and unnecessarily aggravating the 1.3 million + Immigration Court backlog is the regime’s mindlessly filling the docket with re-calendared and other “low priority/high equity” cases that should be closed and remain closed as a proper exercise of prosecutorial discretion. Sessions’s Castro-Tum decision, soundly rejected by the 4th Circuit inZuniga Romero v. Barr, is one a number unconscionable and unethical abuses of authority by Attorney Generals Sessions and Barr.
For reference purposes, the average grant rate for FY 2018 and FY 2019 was 33% and 29%, respectively.
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Go to the link for complete individual Immigration Judge asylum stats.
The idea that a “court” system is providing “fair and impartial” decisions toasylum seekers by advancing to important appellate positions biased, obviously unqualified, anti-asylum “jurists”with grant rates that are a small fraction of the already artificially and unethically suppressed “national average” is a total fraud — a grotesque national disgrace rivaled only by the gutless Article III judges who have allowed and encouraged this to happen on their watch!
Somewhat remarkably, after three years of concerted efforts to “zero out” asylum grants, including gimmicks like illegally and unethically rewriting asylum law to screw refugees, denying the statutory and Constitutional right to counsel, using coercive and punitive detention, abusive criminal prosecutions, and family separation to coerce asylum seekers into giving up viable claims, production quotas encouraging rote asylum denials, packing the Immigration Courts with appointees from enforcement backgrounds, and stacking the BIA with anti-asylum zealots, the overall asylum grant rate is still 29%.
That suggests that under a fair and impartial judicial system asylum seekerscould and should succeed in the vast majority of cases. With no material improvements in worldwide refugee-creating conditions, and indeed a record number of refugees fleeing oppression, there is no bona fide explanation for how grant rates would go from 43% in FY 2016 to 29% in FY 2019 without any legislative changes. And, let’s be clear: the 43% in 2016 was already artificially suppressed from 56% in FY 2012. Even the 2012 rate was unrealistically low. A realistic grant rate under a properly generous application of asylum law probably would have been in the 70%-80% range.
The answer is obvious: Government fraud and misfeasance in asylum adjudication on a massive scale, motivated by a White Nationalist, racist, nativist political agenda that clearly violates both the asylum laws and our Constitution. And, this doesn’t even take into account the many asylum seekers artificially denied access to the system at all through the “Let ‘Em Die in Mexico Program,” and ludicrously illegal and fraudulent “Safe Third Country” agreements with patently unsafe and corrupt failed states.
Yet, while it’s all happening in plain view, indeed touted by Stephen Miller and other racist officials, the Article III Courts of Appeals and the Supremeshave taken a dive. They are are allowing the “Second Coming of Jim Crow” to unfold before their eyes, every day, without taking the strong, courageous judicial actions necessary to preserve Due Process and fundamental fairness and to “just say no” to the overt racism driving anti-asylum policies.
Sure, the stock market is up and we’re essentially at full employment. But, that really has little or nothing to do with justice, morality, values, and the rule of law. Eventually, the inevitable economic cycles will turn again.
With social justice, integrity, the rule of law, and our republic in shambles, how will the Article IIIs and the other cowardly enablers justify their roles and dereliction of their duty to stand up for the rights of the most vulnerable among us? And, who will stand up for them and their rights when the anti-American forces driving Trumpism decide that these toady judges’ complicit role is no longer essential to the planned destruction of American democracy?
In INS v. Cardoza Fonseca, 480 U.S. 421, 452 (1987), Justice Blackmun, in his concurring opinion, cautioned:
“The efforts of these courts stand in stark contrast to — but, it is sad to say, alone cannot make up for — the years of seemingly purposeful blindness by the INS, which only now begins its task of developing the standard entrusted to its care.” INS v. Cardoza-Fonseca, 480 U.S. 421, 452 (1987).
Unfortunately, after years of progress under Administrations with more integrity and intellectual honesty, the interpretation and application of U.S. asylum law is now in, perhaps terminal, regression under this corrupt and intellectually dishonest White Nationalist regime and the kakistocracy it has constructed within the immigration bureaucracy, including the parody of justice and Due Process that takes place daily in the Immigration “Courts.”
Even more tragically, this time around the Supremes and the Article III Circuit Courts, far from being part of the solution and fearless defenders of the rule of law and the rights of vulnerable asylum seekers, have become a key part of the “purposeful blindness” feeding and driving the problem — in effect, “slaughtering the innocents.” By their complicity and fecklessness, they are ripping apart our system of justice and our established constitutional order. I’m sure that Justice Blackmun would be both horrified and outraged by the institutional cowardice and dereliction of duty by his black-robed, life tenured successors.
Due Process Forever; Corrupt, Complicit Federal Courts Never!
Washington (CNN)Lisa Dornell loved her job. For 24 years, she sat on the bench in Baltimore’s immigration court, hearing hundreds of cases of immigrants trying to stay in the United States.
“It was an honor. It was a privilege to be able to preside over so many different cases and be able to grant relief to people who needed relief,” Dornell told CNN in an interview.
But she walked away from that job in April — a decision that still invokes a wave of emotion when she recalls it. “The toxic environment made it both harder and easier to leave,” Dornell said.
Over the past year, in the heat of a border migration crisis, 45 judges have left, moved into new roles in the immigration court system — which is run by the Justice Department — or passed away, according to the department. That’s nearly double the number who departed their posts in fiscal years 2018 and 2017, when 24 and 21 judges left, respectively, according to data provided by the judges union.
The reasons why individual judges have moved on from their posts on the bench vary, but in interviews with judges who left in recent months, one theme ties them all together: frustration over a mounting number of policy changes that, they argue, chipped away at their authority.
Their departures come as the Justice Department faces a backlog that exceeds 1 million cases. The bogged-down system has led to immigration cases being pushed out years in the future, leaving many immigrants residing in the US unsure if they’ll be allowed to stay or be ordered removed.
President Donald Trump has repeatedly criticized the nation’s immigration system, specifically taking issue with the practice of releasing immigrants while they await their court dates. To remedy that, the administration has sought to hire more immigration judges. Most recently, the immigration judge corps hit a record high, though the Justice Department still has to contend with judges leaving over policy disagreements.
In a statement to CNN, the Justice Department’s Executive Office for Immigration Review spokeswoman, Kathryn Mattingly, said the agency “continually plans for attrition, and both improvements to the hiring process and a policy of ‘no dark courtrooms’ help minimize the operational impact of (immigration judge) separations and retirements.”
The agency doesn’t track individual reasons for retirements or departures, Mattingly said.
Immigration judges — employees of the Justice Department — are charged with following the policies set by each administration.
“The nature of the job ebbed and flowed as administrations changed,” Dornell recalled. “It was always tolerable. We all work with a realization that it’s the prerogative of the administration to implement policies as they see fit.”
The Trump administration was no exception. Trump’s first attorney general, Jeff Sessions, implemented a series of changes to the immigration court system that have continued under his successor, William Barr.
The Justice Department has imposed case quotas, given more power to the director charged with overseeing the courts, reversed rulings, curtailed judges’ ability to exercise discretion in some cases and moved to decertify the union of immigration judges.
Over time, those actions prompted immigration judges, some of whom were retirement eligible and had decades of experience, to leave the department despite initial plans to stay longer.
“I felt then and I feel now that this administration is doing everything in its power to completely destroy the immigration court system, the board of immigration appeal and the immigration system in general,” said Ilyce Shugall, who served as an immigration judge in San Francisco from 2017 until March of this year. “And I just couldn’t be a part of that.”
‘It started to wear on me’
Over his nearly two-year tenure as attorney general, Sessions transformed the courts by flexing his authority to overrule decisions, hire more immigration judges and set a case quota for judges.
One of Sessions’ addresses to the workforce, in particular, resonated with judges. In a June 2018 speech in Washington, Sessions denounced the system, which he believed was encouraging migrants to make baseless asylum claims, and reminded judges of their role in cracking down on those claims.
“You have an obligation to decide cases efficiently and to keep our federal laws functioning effectively, fairly and consistently,” Sessions said. Later that day, he issued a ruling that removed asylum protections for victims of domestic violence and gang violence.
“To be honest with you, in that meeting room, there were a number of judges that cheered and clapped when he announced it,” said former immigration judge Rebecca Jamil, referring to the ruling that would follow his address. “It was grotesque to me.”
Jamil, who had been based in the San Francisco immigration court, had a docket that included migrants who had fled their home countries, claiming they were victims of domestic violence. Sessions’ decision took direct aim at those cases.
Another judge in attendance at Sessions’ speech, Denise Slavin, recalled jaws dropping. Slavin had become a judge in 1995, serving in Florida before finishing her tenure in Baltimore in April of this year.
Sessions’ address and follow-up ruling was among a series of policy changes that began to wear on judges.
“When you’ve been around that many administrations, you learn to adapt. You see a lot of different things. Nothing like this,” said James Fujimoto, a former Chicago immigration judge who started on the bench in 1990 and also retired in April.
In particular, the administration began rolling out changes that dictated the way judges were expected to proceed with cases, thereby tightening control of the immigration courts. For example, the Justice Department said it would evaluate immigration judges on how many cases they close and how fast they hear cases.
Earlier this year, the Justice Department also issued a new rule that gives more power to the director of the Executive Office for Immigration Review. It allows the Justice Department-appointed director — currently James McHenry — to step in and issue a ruling if appeals are not completed within a certain time frame.
“It started to wear at me,” said Jennie Giambastiani, a former Chicago immigration judge who joined the bench in 2002 and left this year. “The great number of cases coming in and the way it was expected we handle them.”
Judge Ashley Tabaddor, president of the National Association of Immigration Judges, told CNN that for the majority of people leaving their roles it’s a result of the “hostility and insulting working conditions.”
Tabaddor noted that there’s been a pattern of new judges either leaving to return to their old jobs or taking other jobs within the government.
“This is not what they signed up for,” Tabaddor said, referring to policies designed to dictate how judges should handle their dockets.
Judges who have since left the department expressed similar concern over those policies. Dornell called the situation “intolerable.”
Shugall recalled the challenges she had faced in trying to move forward with cases in a way she thought was appropriate. “I felt like as more and more policies were coming down, it was making it harder and harder to effectively hear cases in the way that I felt was appropriate and in compliance with the statute regulations and Constitution,” Shugall said.
At an event earlier this year, McHenry rejected criticism that judges are vulnerable to pressures from the attorney general.
“Most judges that we’re familiar with, and I don’t think that immigration judges are any exception, when they’re on the bench, they know what their role is as a judge,” he said. “We’ve had no allegations of anyone reaching down to specific judges telling them, ‘You have to rule this way; you have to rule that way.’ ”
Justice Department hires new judges
Earlier this month, the Justice Department announced 28 new immigration judges, bringing the number of such judges to more than 465, a record high. The majority come from government backgrounds.
It’s not unusual for administrations to hire people who’ve worked in government, but under the Trump administration, Booz Allen Hamilton, at the direction of the Justice Department’s Executive Office for Immigration Review, issued a report recommending that the agency diversify the experience of immigration judges.
The direction of the nation’s immigration courts is also a source of concern among immigrant advocate groups. This month, groups filed a wide-ranging lawsuit, alleging that the Trump administration has manipulated the immigration court system to serve an “anti immigrant agenda.”
It remains to be seen what changes, if any, are in store for the court system, but some of those who have already left their posts as judges carry guilt for departing, concerned about who may fill their jobs.
“The biggest thing I contended with is who is going to replace me,” Jamil said. “I knew I was a fair judge.”
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I’m proud to say that all of the quoted former Immigration Judges are members of our Round Table of Former Immigration Judges, committed to preserving and advancing Due Process and judicial independence.
Apparently, EOIR headquarters and DOJ bureaucrats now refer to Immigration Judge decisions as “policy decisions,” thereby dropping any pretense that they are fair and impartial quasi-judicial adjudications under the law.
As for the ludicrous claim that this is anything approaching a legitimate independent judiciary, as one of my Round Table colleagues succinctly put it: “The political arm of DOJ’s assertion that IJs are treated independently is so much BS.”
Yup! Congratulations and many thanks to Judge Dornell and the others who spoke out in this article!
So, Immigration Judges, who lack the life tenure and protections of independence given to Article III Judges, put their careers and livelihoods on the line for Due Process and the rule of law, and, frankly, to save vulnerable lives that deserve saving. Meanwhile, the majority of Supreme Court Justices and far too many Article III Courts of Appeals Judges just bury their judicial heads in the sand and pretend like the outrages against Due Process, fundamental fairness, and the rule of law aren’t really happening in Immigration Court and that human lives aren’t being ruined or lost by their derelictions of duty. Has to make you wonder about their ethics, courage, and commitment to their oaths of office, as well as what the purpose of life tenure is if all it produces is complicity in the face of tyranny that threatens to destroy our Constitution and bring down our republic.
The Article IIIs are providing some rather sad examples and bad role models for today’s aspiring lawyers.
As the Jewish festival of Hanukkah, which has been a symbol of liberty and freedom from oppression for 2,000 years approaches, 25 Jewish members of Congress, all Democrats, have signed a letter demanding the resignation of Donald Trump’s main architect of oppression and persecution against nonwhite immigrants. This is even as Miller is reportedly preparing a new secret plan to inflict more appalling cruelty and violations of basic human rights against detained immigrant children because he objects to the color of their skin.
For more on the Congressional members’ letter, which was in reaction to the shocking revelation of Miller’s almost 1,000 recent extremist white supremacist anti-immigrant emails, see CNN (December 20):
The letter, addressed to Donald Trump (who will now forever be known as the third president in US history to be impeached by the House of Representatives) states in part:
“As Jewish members of Congress, we are calling on you to immediately relieve White House Senior Advisor Stephen Miller of all government responsibilities and to dismiss him from your administration…His documentation of white nationalist and virulently anti-immigrant tropes is wholly unacceptable and disqualifying for a government employee.”
But even as the above letter was written a news item has now come to light about a secret new policy that Miller has reportedly launched that will make it harder for detained immigrant children to be released by ICE to the custody of family members or friends who are willing to come forward to take custody of them.
This vicious new policy represents a new low in the appalling cruelty that Trump and Miller have shown toward young children whom Trump and Miller do not think should be welcome in the US because, as Trump reportedly said almost two years ago (in January 2018), they are not from “Countries like Norway.”
Details of Miller’s plan, which has not been publicly announced are contained in a December 20 Washington Post article entitled:
Under secret Stephen Miller plan, ICE to use data on migrant children to expand deportation efforts
The Post reports that senior officials at the Department of Health and Human Services:
“…agreed to allow Immigration and Customs Enforcement agents to collect fingerprints and other biometric information from adults seeking to claim children at migrant shelters. If these adults are deemed ineligible to take custody of children, ICE could then use their information to target them for arrest and deportation.”
The Post;s report also shows that this appears to be yet another attempt by the Trump-Miller regime to defy the intention of Congress, in keeping with the virtual dictatorship over immigration policy that America’s third president to be impeached by the House (and the second for abuse of power) is imposing under the authoritarian “unitary executive” theory which directly conflicts with the Constitution and with our basic principles of democracy.
The Post report states:
“The arrangement appears to circumvent laws that restrict the use of the refugee program for deportation enforcement. Congress has made clear that it does not want those who come forward as potential sponsors of minors in U.S. custody to be frightened away by potential deportation.”
But this is precisely what Stephen Miller is attempting to do, according to the above report.
How ironic that this appalling attack against children in pursuit of the Trump-Miller administration’s racial immigration agenda came to light just before the Hanukkah holiday This holiday, which began this year on the evening of December 22, celebrates the heroic resistance of the Maccabees, Jewish freedom fighters, against an oppressive ruler, Antiochus, king of Syria, in 169 B.C.
Rabbi Sid Schwarz explains the meaning of Hanukkah as follows:
“Hanukkah is the Jewish festival of religious liberty and freedom.”
But Hanukkah stands for more than just freedom of religious persecution – such as Donald Trump instituted within days after taking office ac president by imposing his Muslim ban – a blatant violation of the Constitutional guarantee of religious freedom which should have immediately led to impeachment proceedings at that time.
As Rabbi Schwarz also writes concerning the tradition that a small amount of oil for the temple lamp lasted for eight days, Hanukkah is also a celebration of Human Rights in general:
“Whether one believes literally in the miracle of the high-octane oil, on a spiritual level Hanukkah is about a much bigger miracle. It is the miracle of faith conquering fear. of the few overcoming the many, of liberty winning out over oppression.
Hanukkah falls close to Human Rights Day which we celebrate every year on December 10. We ignore this day at our peril. The date was based on the 1948 ratification of the Universal Declaration of Human Rights by the general Assembly of the United Nations.
Enshrines in the Universal Declaration of Human Rights are principles at the core of democracy: the right to life, liberty and security of person; equal justice before the law; protection against cruel and degrading forms of punishment…”
www.rabbisid.org/hanukkah-and-human-rights/
What could be a more cruel and degrading practice than keeping young children incarcerated while intimidating their parents or other family members against coming to pick them up because of fear of being deported? It would be hard to imagine any greater form of deliberate sadism.
Therefore I would like to make the following proposal to Stephen Miller, the great grandson of an impecunious early 20th century Jewish immigrant who would without any question be barred from entry to the US under Miller’s own vastly expanded Public Charge rules (if they ever go into effect).
I would ask Miller, who seems to be totally oblivious to the history of persecution and exclusion that Jewish immigrants were subjected to by the US government for much of the 20th century, including the 1930’s and 1940’s at the time of their most desperate need, whether he would be willing to agree to the following proposal:
If Stephen Miller and Donald Trump, who claims to be a great friend of the Jewish people and whose own daughter and son-in-law are Jewish, are unwilling to abandon their inhuman and arguably illegal practice of frightening parents or other relatives of detained immigrant children from coming to pick them up and arrange their release, through fear of action by ICE, would Trump and Miller be willing to suspend this barbaric practice for at least the eight days of Hanukkah as a gesture of good will, and in the spirit of the holiday?
Or would that be too much to ask?
With the above thoughts, I wish all readers a Happy Hanukkah and a very Merry Christmas.
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Roger Algase
Attorney at Law
At the time when President Barack Obama instituted DACA, there was a warning from the opposition side that one day, under a different president, DACA might make it easier rather than harder to deport immigrants registering for that program. The reasoning was that by registering for DACA, millions of unauthorized immigrants would be providing the government with personal information which could later be used against them for deportation purposes.
However, the fact that DACA information might later on be misused by a future malevolent president for a purpose opposite the the one intended was certainly no reason for scrapping the entire program. At least it is unlikely that the 800,000 immigrants who are now benefiting from DACA would agree. Almost any action that is taken with regard to immigration might have results in the future different from those initially contemplated.
To give an example of a different immigration program, at the time that Trump instituted the Muslim ban executive orders, supporters of the ban didn’t seem to realize that if a current president were given the power to defy the guarantee of religious freedom enshrined in our Constitution by banning immigrants from Muslim countries, a future president whose bigotry might run in a different direction form Trump’s bigotry, might use the same power to ban Jewish immigrants from Israel, or to ban Catholic immigrants from Europe (as was in fact done in the 1924 immigration law..
In any event, warnings about possible misuse of DACA in the future were not taken seriously, because at the time that he announced the termination of DACA, Trump put out the line that, of course, he would never dream of doing anything as nasty as actually deporting DACA recipients. Later on, during Supreme Court argument on DACA, Chief Justice Roberts bought into these assurances hook, line, and sinker, as Frank Sharry of America’s Voice describes in a December 23 press release entitled:
Chief Justice Roberts, You were wrong. Trump does want to deport DACA recipients
Sharry quotes Roberts during the Supreme Court’s oral argument on DACA as saying:
“…the whole thing [about DACA] was about work authorization and these other benefits. Both administrations have said that they’re not going to deport the people.”
Now, with a December 21 CNN report that the Trump-Miller administration is moving to reopen previously closed deportation cases against DACA recipients who have no or only minor criminal records, Trump’s assurances are turning out to be a hollow, if not actually fraudulent, as so many of his other statements on immigration have been.
For this reason, Roberts was either in denial, as Frank Sharry asserts, or was being misled by the Trump administration about the real issue involved in DACA. See CNN:
Is this about-face (one might call it turncoat action) by Trump and Miller the fault of former president Barack Obama? That would seem to be an example of convoluted, if not Orwellian, reasoning at best – the idea being that a president who saved neatly a million immigrants from deportation through DACA really hurt them instead, while a different president who is actually threatening to deport them has no responsibility for this action.
CNN reports as follows:
“ICE confirmed to CNN that DACA recipients whose deportation cases have been administratively closed can expect to see them reopened. In an email, the agency states that ‘re-calendaring of administratively closed cases is occurring nationwide and not isolated to a particular state or region.'”
The same CNN report also states:
“The move to reopen deportation cases against Dreamers comes as the US Supreme Court considers whether to let the Trump administration end the program – and during oral arguments in November, at least some justices made it clear that they were accepting the president’s assurances that ending DACA would not mean deporting Dreamers.”
The only possible conclusion is that the Trump administration either deliberately misled the Supreme Court, whose Chief Justice and, as CNN also mentions, other justices as well, relied on its assurance that no Dreamers would be deported; or else that the no deportation assurance is now “inoperative” (to use a famous expression from the Nixon administration during the Watergate scandal).
The above raises a few questions:
1) Is this act of outright deception (worst case) or sleight of hand (at best) on the part of the Trump administration with regard to its intention to deport Dreamers if DACA is terminated the fault of former President Obama?
2) Full information about Dreamers whose deportation cases were closed was already known to the government at the time that President Obama established DACA. Otherwise, the deportation cases would not have been started in the first place. How could establishing DACA and closing their cases have put these deportation respondents at any greater risk than they already were subject to?
3) President Obama established DACA to try to save the “Dreamers” from being deported. Donald Trump is now trying to end DACA in order to deport them. If they are eventually deported, will that be President Obama’s fault? That kind of argument could only come out of a George Orwell novel.
4) Finally, we must ask, why is it so important to the Trump and Miller administration to deport the “Dreamers”? To answer that question, we need look no further than Miller’s recently revealed almost 1,000 emails contending that non-white immigrants are not welcome in the United States, with or without legal status.
Deporting 800,000 “Dreamers” would be only one part of Miller’s drive to accomplish this sweeping, white supremacist agenda, which would take America back to the 1924 Europeans-only immigration regime that Miller reportedly holds up as his ideal in the above mentioned emails, and which has very arguably become the basis of the Trump administration’s entire immigration agenda.
As The Atlantic states regarding Miller’s recently revealed immigration related emails (November, 2019):
” That Miller himself possesses a Jewish background is no obstacle to his believing that the racist and anti-Semitic restrictions of the 1920’s were a great achievement and that the law that repealed them was a great tragedy. These comments shed a great deal of light on Miller’s motives in shaping administration policy.”
Nothing could be clearer about who will be responsible for deporting up to 800,000 Dreamers if Chief Justice Roberts and the other Supreme Court “conservatives” buy into the Trump administration’s worthless assurances that the Dreamers will be safe from deportation even if DACA is terminated.
The president responsible for that exercise in ethnic cleansing will not be named Barack Obama.
Thanks, Roger, for sharing your thoughts and for “telling it like it is!”
It’s pretty obvious that Solicitor General Noel Francisco lied to the Supremes about the Dreamers’ fate! He also misrepresented the dire consequences of depriving them of employment authorization and other aspects of being allowed to reside here “under color of law” as opposed to just “not being removed.” That’s in addition to his mental gymnastics of substituting a non-existent “policy” rationale (hint, there is no legitimate policy rationale for dumping on the Dreamers) for the original “bogus legal rationale” put forth by Sessions.
It’s by no means the first time that DOJ lawyers have lied to or mislead Federal Courts about immigration policies and the motives for actions by the Trump regime. How about the “Census Case,” providing bogus rationales for the Travel Ban, reprogramming money for “the Wall” based on a fabricated “national emergency,” denying the existence of a child separation program, claiming that reuniting children was “too difficult,” the “Let ‘Em Die in Mexico” program, or papering over Session’s nativist bias and motives for the “A-B- Atrocity,” to name just a few of the more obvious and egregious ones? Essentially, it’s like claiming that “poll taxes” were about “raising revenue” or that “separate” was “equal.”
For most lawyers, lack of candor to a Federal Court would be a serious matter, putting their licenses to practice law at risk. Why are Francisco and the rest of his merry band at DOJ, all the way up to Barr and Sessions before him, exempt from the normal rules of ethics and professional conduct? Why do the Supremes continue to reward his dishonesty by time and again granting his largely frivolous requests to “short circuit” normal judicial procedures and get an immediate audience with the Supremes?
Since Trump and “Moscow Mitch” are stacking the Article III Judiciary with what they believe to be reliable Trump sycophants, it probably would be a mistake to think that “equal justice for all” will reappear in the Article IIIs any time soon.
Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)Hon. Elizabeth A. Wolford U.S. District Judge WDNY
Dan Kowalski over @ LexisNexis Immigration Community reports:
FW:due process victory: Hassoun v. Searls
“[T]he Court finds that 8 C.F.R. § 241.14(d) is not a permissible reading of § 1231(a)(6), and that it is accordingly a legal nullity that cannot authorize the ongoing, potentially indefinite detention of Petitioner. … The Court further finds that an evidentiary hearing is necessary before it can determine the lawfulness of Petitioner’s continued detention under 8 U.S.C. § 1226a.”
Note also the roasting, on page 11, of DOJ lawyers for failure to do basic 1L legal research: “To say the least, it is disappointing that Respondent’s counsel, after consulting with other counsel including “prosecutors and appellate attorneys” in this District’s United States Attorney’s office, submitted a legal memorandum to the Court that failed to acknowledge contrary case law that did not support its position.”
I hear and appreciate U.S District Judge (WDNY) Elizabeth A. Wolford’s outrage and frustration.
But, for hard working members of the New Due Process Army this is “just another day at the office” in dealing with the Trump Regime’s unethical, scofflaw, fact free White Nationalist nativist agenda: lies and pretexts presented to the Supremes to hide an intentional census undercount directed at reducing Hispanic voting and political power; false narratives about migrants and crime; a bogus largely self-created “border emergency;” fraudulent “national security” justifications; EOIR “administrative changes” intended to undermine the right to representation and eliminate due process; twisted unethical “precedents” entered by the chief prosecutor that always come out against the individuals; misogynist racist misinterpretations of asylum law intended to kill, maim, and torture vulnerable women of color; child abuse cloaked in disingenuous “law enforcement” rationales; bogus “civil detention” to punish lawful asylum seekers; a grotesquely dishonest “Migrant Protection Protocol” intended to subject migrants to deadly conditions in Mexico; “Safe” Third Countries that are among the most dangerous in the world without functioning asylum systems; irrational “public charge” regulations intended to reduce legal immigration without legislation; EOIR’s distorted statistics intentionally manipulated to minimize asylum grants and cover up the anti-asylum bias improperly infused into the system; vicious unsupported attacks on the private bar by the Attorney General and other regime politicos. The list goes on forever.
Unfortunately, this scofflaw and unethical behavior will continue until Federal Judges back up their words with actions: declarations of unconstitutionality; sanctions against the Government for frivolous litigation; removing political control over EOIR; referring Barr and other DOJ attorneys who are abusing the justice system to bar authorities for possible discipline.
“This ain’t your Momma’s or Papa’s DOJ!” (Or for that matter one that those of us who served in the recent past would recognize.) Its antecedents and “role models” are America’s vile, deadly, discredited Jim Crow era and 20th & 21st Century fascist regimes.
Time for Article III Judges to get out of their ivory towers, stop tiptoeing around Government corruption, dishonesty and misconduct, and start looking at things from the human perspective of the individuals and their courageous attorneys caught up in this legal, moral, and ethical quagmire and fighting not only for their own lives but for the future of our nation! There is and will be “only one right side of history” in this existential struggle!
Due Process Forever; The Corrupt White Nationalist Immigration Agenda Never!
New Emails Expose How Stephen Miller and His Pals Push Trump’s Agenda
For nearly three years, Stephen Miller has used his White House seat to orchestrate the most extreme anti-immigrant agenda in almost a century. But he hasn’t done it alone.
A loose network of lawyers and advisers embedded throughout the Trump administration has worked closely with Miller to carry out the daily effort of pushing through draconian and often inhumane policies like separating migrant families at the border, detaining young migrants in cagelike facilities, and drastically reducing the number of immigrants allowed entry into the country. In other words, Miller, with his white-nationalist mindset and fervor to enact xenophobic policies, is far from an isolated actor. He’s the leader of a broad operation spread across the federal government.
Newly released emails provided to Rolling Stone offer a glimpse of the working relationship between Miller and one of his internal allies and fellow ideologues: a senior adviser at Immigration and Customs Enforcement named Jon Feere. Feere has been a fixture in Miller’s immigration working group where new ideas for cracking down on immigration get conceived. Reading the emails, Feere comes across like Miller’s point man inside ICE, enjoying unfettered access to arguably the most influential aide in the Trump White House, working long hours to advance the administration’s extreme and often inhumane immigration policy.
In the emails, Feere strategizes with Miller about how to use the federal government to amplify their anti-immigration message; tees up potential attacks on prominent Democratic politicians; directly briefs Miller in great detail about upcoming enforcement actions and policy changes in the works; and recommends to Miller people the administration should hire to expedite its immigration agenda. The emails also show that on at least one occasion Feere bypassed his superiors at ICE to deliver updates and advice directly to Miller.
“Stephen Miller didn’t cut ties with the extremists when he joined the government — he brought them with him,” says Austin Evers, executive director of American Oversight, a government watchdog group run by former members of the Obama administration. American Oversight first obtained Feere’s emails through a Freedom of Information Act request and provided them to Rolling Stone.
ICE and the White House did not respond to multiple requests for comment.
Before he joined the administration, Feere’s bio says he worked for more than a decade at the rabidly anti-immigrant Center for Immigration Studies, which has played an instrumental role in shaping the administration’s immigration policies. The Southern Poverty Law Center has labeled CIS an active hate group. (In January, CIS filed a civil racketeering suit against SPLC’s leaders, but a district judge dismissed the suit.) As a policy analyst there, Feere took hardline positions critical of birthright citizenship as guaranteed by the 14th Amendment and of President Obama’s policies like DACA. He accused Obama of opening the border “to more STDs,” and gave testimony to Congress about restricting birthright citizenship. He wrote favorably of Arizona’s infamous “Show Us Your Papers” law and condemned the DREAM Act, cities that adopt sanctuary status, and Obama’s DACA policy. In 2015, he penned an op-ed titled “How Trump Could Change Birthright Citizenship.”
Feere’s outspokenness didn’t go unnoticed: He advised the 2016 Trump campaign on immigration for several months before taking a job inside the administration. On the morning of Trump’s inauguration, he hit send on a tweet: “It’s time to make immigration policy great again.”
The partnership between Feere and Miller was a natural one. Miller is a big fan of the Center for Immigration Studies. During a keynote address at a CIS event in 2015, he applauded the group for spurring “a debate that far too often operates, like illegal immigrants, in the shadows.” A recent investigation by SPLC’s Hatewatch revealed that Miller shaped Breitbart News’ immigration coverage leading up to the 2016 election by sending at least 46 emails that mentioned CIS research, employees, or contributors to a Breitbart editor named Katie McHugh. Miller sent McHugh the phone number of CIS’s research director and pushed McHugh to use CIS research in her stories, which she often did. (Breitbart fired McHugh in 2017. She says he has since disavowed right-wing extremist politics.)
“We used [CIS material] to spin a narrative where immigrants of color were not only dangerous, violent individuals but also posed an existential threat to America,” McHugh told Hatewatch. “We never fact-checked anything. We never called up other organizations to get any other perspective about those studies…. It was understood. You just write it up.”
After Trump’s victory, Miller brought fellow immigration hardliners with him into the new administration. In addition to Feere, there was Julia Hahn, a Breitbart writer who took a job in the White House, and Julie Kirchner, a former staffer at another prominent anti-immigration group, the Federation for American Immigration Reform (FAIR), who became an adviser to the acting commissioner of Customs and Border Protection and later the top ombudsman at U.S. Citizenship and Immigration Service. Because Feere, Hahn, and Kirchner took advisory roles, that meant they didn’t have to be confirmed by the Senate, where they probably would’ve faced harsh questioning for their extreme views.
An active Twitter user before he went into government, Feere’s account went dark after his Inauguration Day tweet. That’s why the emails between Feere, Miller, and other Trump administration officials are useful — they give a rare glimpse at how key figures in the administration have worked behind the scenes to enact the largest crackdown on immigration in this country since the 1920s and ’30s.
“We’ve had quite draconian politics in the past,” says Daniel Tichenor, a professor at the University of Oregon. “But I don’t think we have ever had a modern presidential administration that looked back so longingly to the 1920s and ’30s as the good old days.”
The Feere-Miller emails released to American Oversight run to nearly 500 pages and are heavily redacted. But they’re still one of the few opportunities to see the administration and some of its most hardline members in action on the policy that Trump will be most remembered for: immigration.
One of the most striking emails is a December 22th, 2017, message that Feere sent to Miller and three other administration staffers. It’s a 10-point bulleted memo in which he updates Miller on a slew of different actions underway that he and his colleagues had worked on in the preceding week. The memo is notable because it appears to show how much latitude Feere has at ICE to not only brief the White House but drive forward the administration’s immigration agenda.
Feere says he led a meeting about crafting a new agreement between ICE and the Department of Labor on worksite immigration enforcement actions that would be “more favorable to ICE’s mission” of tracking down and deporting undocumented residents. He describes helping plan an upcoming ICE raid in the Bay Area, and tasking a field office to investigate a New York-based Pakistani American accused of supporting ISIS with bitcoin. He says he stopped an administration response to Amnesty International report on immigration enforcement; located ICE officers and operations “worth highlighting in speeches” for White House speechwriters; and assisted a Fox News contributor and “friendly NGO” on messaging after a draft proposal about separating migrant families had leaked to the media.
What’s notable as well about Feere’s December 22nd memo to Miller is that, according to emails, Feere apparently sent the message straight to Miller and other White House officials without clearing it by his bosses at ICE, who learned about the memo after the fact. “Here is Jon providing a weekly report to [redacted] that neither you or I saw before he sent it,” reads a follow-up email sent to ICE Acting Director Tom Homan by what appears to be Homan’s chief of staff, Tom Blank. (The redacted name is likely Miller’s. Homan declined to comment for the story.)
John Sandweg, who served as acting ICE director under Obama and reviewed the emails between Feere and Miller, says it’s not uncommon for an agency official like Feere to aggressively try to get credit for accomplishments and make the White House aware of what he’s doing. But Sandweg adds that it’s “a little strange” to see an adviser like Feere delivering updates and advice directly to the White House, as Feere did.
“You might have someone like [Feere] coordinating it, doing the grunt work, preparing it,” Sandweg says. “But going directly from him to the White House — that’s unusual. If you’re reporting that kind of detail to the White House, the director wants to sign off on that.”
In another email, sent on February 26th, 2018, Feere appears to forward the name and résumé of a Treasury Department employee for an opening at the Social Security Administration. In a follow-up email, Feere writes: “If we can get [name redacted] into SSA, it would help with information-sharing issues.” Greater access to Social Security information, immigration experts say, could assist ICE in its efforts to track down and deport undocumented residents in the U.S. Feere recommends to Miller that the applicant get a title of “Senior Advisor or similar [which] will ensure he has some clout over there.”
Other emails, while heavily redacted, show Feere’s efforts to build the case against DACA, which defers deportation for undocumented residents brought to the U.S. as children and allows them to receive temporary work permits. He writes in one memo: “DACA recipients include murderers, child molesters, individuals involved in fraud schemes, gang members, and many other types of criminals.” In another email, he writes to Miller on November 30th, 2017, to say that Sen. Kamala Harris (D-Calif.) and California Lt. Gov. Gavin Newsom were “silent” on the acquittal of an undocumented resident who was alleged to have shot and murdered 32-year-old Kate Steinle in July 2015, teeing up a potential attack on two nationally known Democrats.
And still other messages show a close working relationship and rapport between Feere and Miller. In one message, Feere asks Miller for a public defense of ICE’s then-acting director, Tom Homan, after Breitbart had published a series of stories that were critical of Homan, who had previously worked in the Obama administration. In another email Miller sends Feere his cellphone number and tells him to call over the weekend. In another, Feere gives Miller a list of “ideas for swift action,” at 7:30 p.m. (The substance of that email is redacted.) And in yet another message, with the subject line “Appropriations,” Miller thanks Feere for his work and tells him to “keep pushing.”
Shoba Sivaprasad Wadhia, a Penn State law professor and director of the Center for Immigrants’ Rights Clinic, says that Feere’s and CIS’s role in carrying out the administration’s immigration policy marks an ascent to power for one of the most extreme voices — a rise that would have been unthinkable even a decade ago. “They used to be called the loud minority,” Wadhia says. “The fact they’re now helping make immigration policy should be concerning to everyone.”
Remember: When Article III Federal Judges use concepts like “jurisdiction,” “deference,” “textualism,” “delegation,” “plenary power,” “discretion,” and “national security” to uphold the Trump/Miller assault on migrants, the rule of law, and our Constitution, what they are really doing is knowingly advancing the White Nationalist agenda while disguising their actions or inactions with often opaque legalisms. How can you rewrite the laws without Congress and in clear disregard of the Constitution, Due Process, Equal Protection, and prohibitions on racial and religious discrimination? Easy, when when the judges who are supposed to stand up for the law against tyranny instead look the other way.
How do you think that Jim Crow survived for at least a century with nary a peep from the Article IIIs about its obvious racist unconstitutionality? That’s the same type of corrupt judicial complicity that Trump, Miller, Barr, and the rest of the White Nationalist gang are counting on here. And, recently, they have been “right on.”
It’s also why despite all the recent revelations and calls by Democrats and opinion writers for his removal, Stephen Miller and his White Nationalist agenda aren’t going anywhere. Much as most Democrats and most pundits don’t want to admit it, Miller now represents the “real” GOP. The idea that GOP politicos will some morning wake up and find themselves appalled by illegality, racism, misogyny, and pandering to the hate agenda, and rediscover human decency, is a dangerous myth.
Note that no matter how outrageously racist, anti-Semitic, anti-American, misogynist, or otherwise hateful and demeaning Trump’s or Miller’s utterances might be, they draw no real condemnation from the GOP. At most, a smattering from the GOP might mutter something like “not useful” or “I wish he had chosen different words.”
And these days, most Federal Appeals Courts find ways to “go along to get along” without acknowledging what’s really going on here. I guess too many Federal Appellate Judges are incapable of seeing themselves and their families as being on the same level of humanity as Trump’s and Miller’s current targets. So, dehumanization and “Dred Scottification” of “the other” is OK by them. That’s both a shame and a national disgrace.
Sixteen-year-old Carlos Gregorio Hernandez Vasquez died horribly and needlessly. The Trump administration’s policy of deliberate, punishing cruelty toward Latin American migrants killed him.
That is the only conclusion to be drawn from a shocking report by the nonprofit newsroom ProPublica about Hernandez’s death in May at a U.S. Border Patrol station in Texas. I assume the agents and health-care workers who should have given Hernandez lifesaving attention are decent human beings, not monsters. But they work within an intentionally monstrous system that assigned no value to a young Guatemalan boy’s life.
President Trump’s racist and xenophobic immigration policies are not grounds for impeachment; rather, they are an urgent reason to defeat him in the coming election. But at least six migrant children, including Hernandez, have died in federal custody on Trump’s watch. Somebody should be held accountable. Somebody should go to jail.
Hernandez died of influenza and neglect.
He had crossed the Rio Grande without documents with a group of migrants who were almost immediately apprehended by the Border Patrol. In keeping with administration policy, he was separated from his adult sister and processed at a notoriously overcrowded holding facility in McAllen, Tex., where a nurse practitioner found he had a temperature of 103. She diagnosed him with the flu and said he should be taken to a hospital if his condition worsened.
Instead, worried he might infect others at the McAllen center, officials moved him to a Border Patrol station in nearby Weslaco and locked him in a cell. That was on the afternoon of May 19. By the following morning, Hernandez was dead.
Border Patrol logs show that agents checked on Hernandez several times that night. But ProPublica obtained cellblock video showing that “the only way . . . officials could have missed Carlos’ crisis is that they weren’t looking.”
The video “shows Carlos writhing for at least 25 minutes on the floor and a concrete bench,” ProPublica reported. “It shows him staggering to the toilet and collapsing on the floor, where he remained in the same position for the next four and a half hours.”
Customs and Border Protection, the parent agency of the Border Patrol, claimed that Hernandez’s lifeless body was discovered by agents doing a morning check. But the video shows, according to ProPublica, that it was Hernandez’s cellmate who sent up the alarm.
“On the video, the cellmate can be seen waking up and groggily walking to the toilet, where Carlos was lying in a pool of blood on the floor. He [the roommate] gestures for help at the cell door. Only then do agents enter the cell and discover that Carlos had died during the night.”
Let that sink in for a moment. A 16-year-old boy has obviously fallen ill and has a soaring fever. Instead of seeking medical care for him, agents of the United States government — acting in your name and mine — leave him to die on the cold concrete floor of a detention cell.
Hernandez’s death implies more than the apparent negligence of a few overworked Border Patrol agents. It indicts a whole system designed by the Trump administration to deter would-be migrants and asylum seekers by punishing those who do make the journey.
In Hernandez’s case, the fatal punishment was meted out illegally. He had been in custody for six days when he died, but the Border Patrol is only supposed to hold children for 72 hours, at most, before transferring them to the Department of Health and Human Services.
The Trump administration instituted a shockingly inhumane policy of separating migrant parents from their children, who in many cases were sent hundreds of miles away. Thousands of children were warehoused in cages, like animals. Toddlers and infants were absurdly expected to represent themselves at immigration hearings whose nature they could not begin to understand.
It is true that officials have had to deal with a flood of migrants who overwhelmed border facilities and personnel. But the Trump administration responded to the surge not with compassion but with purposeful callousness. It is horrific that six migrant children are known to have died in Customs and Border Protection custody since September 2018. It is even worse when you realize there were no such deaths, not a single one, during the eight years of the Obama administration.
According to ProPublica’s report, Carlos Gregorio Hernandez Vasquez was a bright and engaging boy who captained his school’s soccer team in the village of San Jose del Rodeo. The Border Patrol assigned him the alien identification number A203665141. His body was shipped home for burial.
So why are racist White Nationalist policies that kill kids and then cover up “OK?” Why are Kelly, Nielsen, “Big Mac With Lies,” “Gonzo Apocalypto,” and others responsible for human rights violations running around making big bucks off their misconduct, giving speeches as if they were “normal” former senior executives, and even running for public office rather than facing charges for their misconduct? Others like Chief Toady Billy Barr and “Cooch Cooch” remain in office while spreading their authoritarian lies and attacking our democratic institutions.
And what about complicit Federal Appellate Judges and Supreme Court Justices who have let Due Process, fundamental fairness, and human decency die while looking the other way?
Human rights criminals like Trump & Miller need plenty of “go along to get along” accomplices to carry out their abuse.
Thanks, Eugene, for speaking out when so many others in privileged positions of supposed responsibility have been so cowardly and complicit in the face of tyranny that intends to destroy our democracy and that has already undermined our humanity.
Retired Judge Jeffrey S. Chase, leader of our “Roundtable of Former Immigration Judges” reports:
Waterwell’s wonderful play The Courtroom, in which the script is an actual transcript of an immigration court hearing, and in which three of us (Betty Lamb, Terry Bain, and myself) so far have acted along with stars of Broadway, TV, and film, was named today by the New York Times to its “Best Theater of 2019” list!
Waterwell plans to hold a performance a month through next September or so, so if you are coming to NYC, you can still see it (or maybe act in it!)
BTW, the role played by some of us was the judge performing the naturalization ceremony at the end of the play, in which the entire audience stands and takes the oath. The best anecdote I have heard so far was after a performance at the Second Circuit Court of Appeals, where a non-citizen audience member asked a member of the Waterwell staff if that was a real judge performing the scene. When told yes, it was, the audience member replied “Well, then I guess I’m a U.S. citizen now!”
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Here’s the link to theNY Times and the summary of “The Courtroom” by Laura Collins-Hughes:
One of the most heart-gripping shows of the year could hardly be simpler: It’s not even a full production, just a staged reading of trial transcripts.
Michael Braun and Kristin Villanueva in “The Courtroom.”Credit…Maria Baranova
In Waterwell’s “The Courtroom,” the accused is an immigrant in danger of deportation, her unassuming American life at risk of being torn apart over a mistake she insists was innocent. The sneaky thing about this riveting re-enactment, though, is that in watching it, we citizens are on trial, too. What kind of a nation are we? How cruel have we permitted ourselves to be?
That work, recently returned for monthly site-specific performances around New York, is part of 2019’s thrillingly vital bumper crop of political theater — shows that implicate the audience with bracing artistry.
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Some of you have probably heard me say that being an Immigration Judge was “half scholar, half performing artist.”
Congrats to Waterwell and to “Roundtable Drama Stars” Retired Judges Jeffrey S. Chase, Betty Lamb, and Terry Bain, all formerly of the NY Immigration Court. Proud of you guys! There are so many ways in which our Roundtable contributes to the New Due Process Army’s daily battle to restore Due Process and save our democracy, beyond filing amicus briefs throughout the country (which we do almost every week, with lots of pro bono help from our talented friends at many law firms)!
Many of those contributions are through the arts. SeeJudge Polly Webber and her triptych “Refugee Dilemma” fiber artwork, which has received national acclaim and recognition. https://wp.me/p8eeJm-48d As I said just today in an earlier blog about the disturbingly poor and tone deaf performance by three life-tenured judges of the 11th Circuit, this really is not about different legal views any more. https://wp.me/p8eeJm-4RO
It’s a moral and ethical battle to preserve our democracy and its commitment to humanity from the forces of evil, racism, xenophobia, misogyny, authoritarianism, corruption, and White Nationalism that threaten to destroy it.It so happens that courtrooms are among the most visible battlegrounds. But, it goes far beyond that – to the very fabric of our society and our values — to our very humanity and how we view our fellow human beings.
That’s why complicit judges are so dangerous to the system. As with “Jim Crow,” there is only one “right side of history” here! We deserve better performance from America’s judges, particularly those with Article III protections!
As Laura so cogently said in her review:
[W]e citizens are on trial, too. What kind of a nation are we? How cruel have we permitted ourselves to be?
“The Courtroom” should be required viewing for every judge, law professor, judicial law clerk, law student, legislator, congressional staff member, and immigration bureaucrat in America!
Opinion | The racism behind anti-immigration rhetoric is palpable to every immigrant. Including me.
America is such a young country: It’s only a few hundred years old, and no one who has been here for only a few generations is without an immigrant connection. So, from the outside — from a place like Europe — the idea that Americans are not connected to immigration and our immigrant pasts seems like we are denying ourselves. We sound very self-hating about the very notion of immigration, but we’re actually just confusing racism with a desire to fix the immigration system.
I see that all the time: Things that are being said about immigration and the ideals of immigration are basically just being used as a thinly veiled form of racism. It’s so blatant. The president himself actually said he doesn’t mind people coming from countries like Norway — white people; it’s the people from “shithole countries” he doesn’t want. It seems almost pedantic and obsolete to actually have to talk about the fact that it’s racism.
The contributions of all immigrants has been so derided by our present administration, so I felt that I needed to celebrate immigration rather than have it openly derided. Also, I wanted to try to make people stand back and just see the anti-immigration propaganda that they were being fed, and understand instead how this country is what it is because of immigration. That was the genesis of my cabaret show (now an Audible book) “Legal Immigrant.”
The whole point of the show was to tell my experience from my perspective as immigrant, but also to show that I’m feeling these negative things about being an immigrant and I’m a white man of privilege; I can’t imagine what it must be like for people of color or Muslims. I don’t know the exact percentage, but I would say that, the day I became an American, at least 75 percent of the other people being sworn in with me were people of color.
So I wanted to try and make people stand back from this vehemence and have some fun while analyzing what was going on. I don’t want to be didactic, though: I understand that there are problems with the immigration system; I understand there’s a massive refugee problem in the world. But I will not condone racism or bigotry as part of that debate.
That doesn’t mean I’m not open to dialogue. I like when people engage, that’s why I do theater. I don’t want to just be behind a screen; I actually enjoy the fact that I can hear how people are reacting to me. And I’ve been heckled doing the show — from both sides. I want to hear what people have to say and I totally engage with some people. A couple of times it got quite rowdy, but that’s why I wanted to do these cabarets. They’re good ways to get people to engage and be provoked, and to maybe change their minds … or at least consider other options. And, at the end of the show, I make everyone in the audience sing “The Sun Will Come Out Tomorrow,” so I’m obviously someone who likes bringing people together, even though I also like provoking them.
There’s a thing in this country right now: Any dissent against the president or any disagreement with his views is seen as a red flag and people immediately respond in an aggressive way. People are just screaming at one another right now; it makes it very difficult to engage. And so, aside from trying to celebrate immigration, I’m trying to get people to also stand back and try to not let the tropes of this awful rhetoric blind us to what is actually going on.
This government is trying to brainwash its citizens into believing that the very thing that has made America what it is and has made America great — immigration — is a negative thing. That is complete doublespeak. The idea that if you’re pro-immigrant, you’re anti-America, and if you’re anti-immigration, you are pro-America is completely wrong. That’s not just my opinion; if you stand back from it and look at the history of this country, you can’t deny that is the truth.
I really do believe that people have lost the power of analysis in this country because of the duality of the political system: Politics in this country is a team sport. I also think that, with people like Betsy DeVos running the Education Department, it’s going to take a long time before we have a generation who can regain the powers of analysis. It’s all a multilayered effort to dumb us down, in order to be able to brainwash us and feed us propaganda. We need to stand up and take heed before it’s too late.
As told to THINK editor Megan Carpentier, edited and condensed for clarity.
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Yup!
It’s hard to have a “debate” or a “dialogue” when one side is wedded to myths and bogus narratives, rather than facts: when one side is driven by what it wants to believe, egged on by those who find it politically advantageous, rather than truth.
One of the worst of the many horrible things about the Trump Regime is that supposedly responsible public officials spread the anti-immigrant, anti-refugee White Nationalist myths and false narratives (see, e.g., “Gonzo Apocalypto,” Barr, “Big Mac With Lies,” Nielsen, “Cooch Cooch,” Mark “Fund My TGIF” Morgan, Matt Albence, EOIR, etc.).
Exclusive: Trump’s top border official broke FBI rules to fund happy hours
By Tal Kopan
WASHINGTON — President Trump’s top border official broke federal ethics rules in a previous job by seeking sponsors to buy alcohol and fancy food for FBI happy hours, according to a watchdog report exclusively obtained by The Chronicle.
Mark Morgan, acting commissioner of the Customs and Border Protection agency, continued asking the outside entities to pay for the social events even after being warned it was against federal rules, the Justice Department’s inspector general found.
The previously unreported finding raises questions about the Trump administration’s vetting process for top officials. Although Morgan’s role is typically subject to Senate confirmation, Trump has not nominated him for the job. That has circumvented the traditional review by the Senate — leaving it unclear whether the ethical lapse was ever known to the administration.
Customs and Border Protection and Morgan declined to comment. The White House did not respond to a request for comment.
The violations occurred when Morgan was working at the FBI in 2015 as deputy assistant director of the training division, according to the inspector general’s report. Midway through the investigation in the summer of 2016, Morgan retired from the FBI and was named under then-President Barack Obama to head the Border Patrol. He declined to cooperate with the probe after that, the report said.
Let’s see. Morgan is the racist charlatan who claimed that he could identify a future gang member just by “looking in their eyes.”He was also an enthusiastic supporter of Trump’s threatened (but never fully implemented) “reign of terror” directed against families in ethnic communities. And, of course, as acting CBP Honcho, he encourages and presides over parts of the “New American Gulag,” “Let ‘Em Die in Mexico,” and other human rights violations every day.
Plus, Morgan is as dim as he is evil if he considers government ethics advice to be “mere suggestions.” But, of course, when funding of a TGIF is on the line, why not “push the envelope.” He does exhibit the arrogance and disregard for the rules that apply to others that is a hallmark of the Trump Regime’s Kakistocracy.
However, it’s also significant that this information was available when Obama appointed Morgan Border Patrol Chief. Lots of today’s gross abuses by the Trump Regime have their roots in the Obama Administration’s overall poor, often uninformed, and sometimes negligent approach to immigration issues.
Travesties like “family detention,” “insider-only” hiring at the Immigration Courts and the BIA, absolutist positions on indefinite detention, defense of “toddlers representing themselves” in Immigration Court, and use of “Aimless Docket Reshuffling” at the Immigration Courts in support of inappropriate and unethical “enforcement goals” all helped create unnecessary disorder and inhumanity in the already poorly functioning system.
Obama had a golden chance both to resolve Dreamers and create an Article I Immigration Court at the beginning of his Administration with badly needed, straightforward statutory reforms. Instead, by putting all of his attention on healthcare, to the exclusion of other pressing humanitarian problems, he more or less insured the later “weaponization” of the Immigration Courts, the creation and expansion of the “New American Gulag,” and holding “Dreamers” hostage.
If Obama had taken bold action in 2009, many of the “original Dreamers” would be fully integrated into our society and on their way to citizenship and full participation in our political process by now. Instead, they are being “hung out to dry” by Trump, the GOP, and likely the Supremes. A generation of American youth is being denied the opportunity to contribute and achieve their full potential in the United States.
And, think of how a “real” independent Immigration Court system, with a diverse judiciary with true immigration, human rights, and due process expertise, might have dealt with Trump’s consistent legal overreach on immigration and asylum issues. Indeed, while the Immigration Court backlog might not have been eliminated by an Article I Court, I’ll be it would be considerably less than it is now with an independent court where judges, not enforcement-driven bureaucrats, are in charge of managing their own dockets.
Obviously, we can’t change the past. But, we certainly can avoid repeating its mistakes in the future. Something to consider when looking at Democratic Presidential contenders.
Immigration court backlog has nearly doubled under Trump
November 25, 2019 05:00 PM EST
The nation’s backlog of active immigration court cases has surpassed the 1 million mark and has nearly doubled since President Donald Trump took office, a new analysis shows. In Ohio, 12,851 cases are pending in Cleveland’s immigration court, which includes Columbus-area cases. That’s up from 3,295 in 2009.
While most people might look a few weeks into the future when scheduling appointments for work, Amy Bittner has put court dates on her calendar for 2022.
The Columbus-based immigration lawyer already knows she’ll have to make the 280-mile round trip to Cleveland to represent a client at a hearing in three years.
“The backlog is a victim of this administration’s priorities. There did not used to be this backlog,” Bittner said.
Nationwide, the backlog has almost doubled, from 542,411 pending cases when President Donald Trump took office in January 2017 to just over 1 million as of Sept. 30, according to an October report by TRAC, a Syracuse Universityclearinghouse that gathers and analyzes immigration data from government agencies.
In Ohio, 12,851 cases are pending in Cleveland Immigration Court, the state’s only such court. That is up significantly from 3,295 in 2009. It’s also double the 6,184 in 2016.
Hearings are scheduled in the Cleveland court through Dec. 30, 2022.
Trump administration policies have not helped temper the rise in the country’s immigration court backlog, the TRAC report says.
Austin Kocher, a faculty fellow at TRAC and an Ohio State alumnus , said such backlogs result when “the government focuses concern on immigrants and puts enforcement ahead of due process and civil rights.”
“Very little resources actually go to the immigration court system and judges” compared with enforcement efforts, Kocher said.
Although the judges in northeastern Ohio stay busy, the backlog at Cleveland’s immigration court isn’t the worst in the country. In areas such as New York, Chicago and Philadelphia, immigrants are waiting an average of 1,450 days, or just under four years, to see a judge.
Part of the reason for the backlog, TRAC says, is that then-U.S. Attorney General Jeff Sessions in May 2018 ordered the nation’s immigration judges to end their practice of removing cases from their dockets without issuing decisions. That resulted in formerly closed cases being reopened, according to TRAC.
“The decision to reopen previously closed cases has single-handedly exacerbated the immigration court crisis, yet it has not received sufficient attention,” the TRAC report states. “This single policy decision has caused a much greater increase in the court’s backlog than have all currently pending cases from families and individuals arrested along the southwest border seeking asylum.”
Others blamed the delays in part on one of Trump’s earliest executive orders, from January 2017, when he made every immigrant who was in the country illegally a priority for deportation. The norm had been to prioritize those who had committed crimes.
“It is a senseless waste of taxpayer money to attempt to remove people who are not criminals and who are well-integrated into our community,” Bittner, the Columbus immigration lawyer, told The Dispatch in an email.
The backlog has grown despite the Trump administration having given the immigration courts “the greatest amount of resources,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges, a union.
The nation has 442 immigration judges, according to TRAC. Although about 220 judges have been hired in the past three years, about 100 others have left, Tabaddor said. She said that many of those who have left have expressed feeling like the Trump administration doesn’t allow them to do their jobs properly while adding quotas and micromanaging their work.
Each judge has about 2,000 cases, according to TRAC.
In 2016, when Cleveland’s immigration court had three judges, Bittner went to the court only twice. Now it has six judges, and she goes more than once a month.
Hiring more judges hasn’t fixed the backlog, Bittner said.
“It is very frustrating because justice delayed is justice denied, and while foreign nationals wait years for the adjudication of their cases, they are putting down roots here and having families, which makes removal from the United States even crueler if their case is ultimately denied,” Bittner wrote in the email.
She said some of her clients are grateful for the wait because they have more time to build a life here. Others, however, are frustrated, Bittner said, because they feel that they are constantly in limbo, and once they’ve built a life, it could all come crashing down when their day in court finally arrives.
A few of her clients who had waited years to make their asylum case in the U.S. court left for Canada instead, hoping things would go more smoothly up north.
“It just seems to be getting worse,” Bittner said.
Actually, this article significantly understates the true scope of the backlog. Because, as noted in the article, in Castro-Tum, Sessions unethically, mindlessly, and unlawfully created a situation that, if not halted by the Congress or the Appellate Courts (note the 4th Circuit Court of Appeals has “just said no” to Session’s bogus ruling), will require that over 300,000 low priority, properly “administratively closed” cases be restored to the docket. They vast majority of these are (absurdly) themselves backlogged, “awaiting re-docketing” (more than a clerical process in the antiquated, non-automated, paper heavy Immigration Courts). That makes the total backlog well over 1.4 million and still growing every day.” “Aimless Docket Reshuffling” at its worst!
And, because of the almost guaranteed legal and quality control problems with the Regime’s “cutting corners to deny due process” approach, many of these will end up in the Circuit Courts of Appeals in a condition that requires “return to sender.”
It doesn’t take a legal scholar or much of a judge to recognize that today’s Immigration “Courts” being run by biased, maliciously incompetent DOJ prosecutors don’t satisfy the basic requirement for “fair and impartial adjudications” to conform to Fifth Amendment Due Process. Moreover, the incompetent, “bad faith” mis-management of the Immigration Courts basically “throws garbage” into the higher courts and precludes effective, timely judicial review.
The solution: recognize that this travesty is unconstitutional and require a court-approved “special master” to run the Immigration Courts in place of the DOJ until Congress fixes the glaring Due Process and court management problems with an independent Article I U.S. Immigration Court as recommended by almost all experts!
We also must remember the DOJ’s & EOIR’s concerted White Nationalist attacks on foreign nationals and their legal and Due Process rights in the Immigration Courts is also a vicious, unprovoked assault on the courageous attorneys representing the most vulnerable among us and trying, against the odds, to make the system function for everyone’s good. By failing to aid and support “officers of the court” in this dire situation, the Federal Judiciary basically undermines our entire justice system and brings it into disrepute!
It was never about protecting the border, rule of law or the U.S. economy. And it was never about “illegal” immigration, for that matter.
Trump’s anti-immigrant bigotry was always just anti-immigrant bigotry.
There’s no other way to explain the Trump administration’s latest onslaught against foreigners of all kinds, regardless of their potential economic contributions, our own international commitments or any given immigrant’s propensity to follow the law. Trump’s rhetoric may focus on “illegals,” but recent data releases suggest this administration has been blocking off every available avenue for legal immigration, too.
Last month, the number of refugees admitted to the United States hit zero. That’s the first month on record this has ever happened, according to data going back nearly three decades from both the State Department and World Relief, a faith-based resettlement organization.
So what happened?
The problem wasn’t that the 26-million-strong global refugee population lacked a single person who met America’s strict screening requirements. No, our admissions flatlined because Trump announced and then delayed signing a new refugee ceiling for the 2020 fiscal year. This delay led to a complete moratorium on admissions.
Hundreds of flights were canceled for approved refugees who had waited years or decades to come — once again, legally — to our shining city on a hill. As the moratorium dragged on, some refugees’ eligibility expired. At least four were minors who have now turned 18. This means they’ve aged out of the resettlement program they were accepted under and now must get back in line, perhaps indefinitely, to reapply under a different system as adults.
By the way, when Trump finally did sign off on that new fiscal 2020 refugee ceiling, it was for a mere 18,000 admissions. That too is an all-time low. The Trump administration has also thrown up other roadblocks for refugees, such as allowing states and localities to veto any resettlements within their borders. (This policy is being challenged in court.)
Trump supporters might argue that, whatever our moral obligations to the world’s destitute and desperate, the president is merely keeping immigrants out to protect our economy.
They are wrong.
The Trump administration’s own research — which it attempted to suppress — found that refugees are a net positive for the U.S. economy and government budgets. That is, over the course of a decade, refugees pay more in taxes than they receive in public benefits.
The Trump administration is also turning away categories of legal would-be immigrants who are historically admitted because they are economically valuable.
Last week, for instance, we learned that enrollment of new international students has fallen more than 10 percent over the past three years, according to the Institute of International Education.
This is a shame. Higher education has been one of our most successful industries, adding $45 billion to the U.S. economy last year alone. International students spend money in the local economies where they study — on lodging, food, books, entertainment. They are also more likely to pay full freight in tuition. This means they cross-subsidize American students, especially in states where public education funding has fallen.
International students are also more likely to major in high-demand STEM fields, providing U.S. employers with a pipeline of talent that supports the jobs of native-born Americans.
New international student enrollment is declining for a number of reasons, including high tuition and fear of campus gun violence. But the barrier most frequently cited by universities lately is problems with the visa-application process. Meanwhile, other developed countries, such as Canada and Australia, are poaching students who might otherwise have contributed their talents here.
These are hardly the only signs we’re discouraging or denying legions of desirable and legal would-be immigrants.
Denial rates for H-1B visas — awarded to high-skilled workers — have more than doubled since Trump took office, according to tabulations from National Foundation for American Policy. Processing delays for citizenship applications have doubled. Naturalization and visa fees have skyrocketed.
Meanwhile, when families apply for their legal right to asylum at the border, we tell them to await processing in Mexico, in a region so dangerous that Americans are instructed not to visit. (“Violent crime, such as murder, armed robbery, carjacking, kidnapping, extortion, and sexual assault, is common,” the State Department website advises.)
There, asylum seekers live outdoors, in filthy, flooded, freezing tents. Agonized parents send sick and frostbitten toddlers to cross into the U.S. alone, because they fear they’ll die waiting in Mexico.
And if these desperate families don’t like living in squalor, we tell them they should just return home, get in line and apply through another legal route into the United States. Perhaps as refugees, students or workers.
As though there were still such routes to be found.
It’s institutionalized hate, racism, sexism, lawlessness, and cruelty.
One of the worst things is that’s it’s basically enabled by Federal Appellate Courts who see the same problems as many U.S. District Judge do, but “go along to get along” by “normalizing” Trump’s disgraceful racist behavior and “deferring” to pretextual Executive actions that are merely facades for a dishonest, illegal, and unconstitutional White Nationalist agenda. Sort of reminds me of the bogus “separate but equal” doctrine of judicial cowardice.
Apparently, too many life-tenured Article IIIs in the ivory tower think that they and their privileged circles will escape the gratuitous harm being inflicted on our nation and on vulnerable individuals by a scofflaw executive. Certainly, not unlike the enabling white male judges and Supreme Court Justices who “looked the other way” and thereby enabled Jim Crow regimes to corruptly use our legal system to disenfranchise, murder, oppress, and otherwise abuse African American citizens.
Where has judicial courage among the higher levels of our Federal Judiciary gone?
IN THE TWO YEARS AND 308 DAYS THAT DONALD Trump has been president, he has constructed zero miles of wall along the southern border of the United States. He has, to be fair, replaced or reinforced 76 miles of existing fence and signed it with a sharpie. A private group has also built a barrier less than a mile long with some help from Steve Bannon and money raised on GoFundMe. But along the 2,000 miles from Texas to California, there is no blockade of unscalable steel slats in heat-retaining matte black, no electrified spikes, no moat and no crocodiles. The animating force of Trump’s entire presidency—the idea that radiated a warning of dangerous bigotry to his opponents and a promise of unapologetic nativism to his supporters—will never be built in the way he imagined.
And it doesn’t matter. In the two years and 308 days that Donald Trump has been president, his administration has constructed far more effective barriers to immigration. No new laws have actually been passed. This transformation has mostly come about through subtle administrative shifts—a phrase that vanishes from an internal manual, a form that gets longer, an unannounced revision to a website, a memo, a footnote in a memo. Among immigration lawyers, the cumulative effect of these procedural changes is known as the invisible wall.
In the two years after Trump took office, denials for H1Bs, the most common form of visa for skilled workers, more than doubled. In the same period, wait times for citizenship also doubled, while average processing times for all kinds of visas jumped by 46 percent, even as the quantity of applications went down. In 2018, the United States added just 200,000 immigrants to the population, a startling 70 percent less than the year before.
Before Trump was elected, there was virtually no support within either party for policies that make it harder for foreigners to come here legally. For decades, the Republican consensus has favored tough border security along with high levels of legal immigration. The party’s small restrictionist wing protested from the margins, but it was no match for a pro-immigration coalition encompassing business interests, unions and minority groups. In 2013, then-Alabama Senator Jeff Sessions introduced an amendment that would have lowered the number of people who qualified for green cards and work visas. It got a single vote in committee—his own. As a former senior official at the Department of Homeland Security observed, “If you told me these guys would be able to change the way the U.S. does immigration in two years, I would have laughed.”
. . . .
In November, Cuccinelli was promoted to DHS deputy acting secretary. Kathy Nuebel Kovarik became acting deputy at USCIS and Robert Law, the former FAIR lobbyist, ascended to the head of the policy office. The agency has promised a new flurry of major policy changes before the end of the year. And in what is perhaps the purest expression of the administration’s intentions so far, it started sending Central American asylum seekers to Guatemala with no access to an attorney, no review by an immigration court, far away from the border infrastructure of activists and reporters and lawyers or any form of help at all.
IT’S EASY ENOUGH TO BELIEVE THAT BECAUSE NONE of the Trump administration’s reforms are entrenched in law, they can be overturned as quickly as they were introduced. And yet even though, in theory, the policy memos can all be withdrawn, the “sheer number of both significant and less significant changes is overwhelming,” said Jaddou, the former USCIS chief counsel. “It will take an ambitious plan over a series of years to undo it all.” Formal regulations, like the third-country asylum rule and public charge rule, if it succeeds, will be especially hard to unravel.
The institutional implications run deeper. The backlog of delayed cases will likely take several years to get under control. The administration has promoted six judges with some of the highest asylum denial rates to the Justice Department’s immigration appeals court, including one who threatened to set a dog on a 2-year-old child for failing to be quiet in his courtroom. Those appointments are permanent.
The refugee program, too, will take years to rebuild. The plunge in admissions caused a plunge in funding to the nine resettlement agencies, which have closed more than 100 offices around the country since 2016. That’s a third of their capacity, according to a report by Refugees Council USA. “The whole infrastructure is deteriorating,” said Rodriguez, the former USCIS director. Because the application process is so lengthy, even if a new administration raises refugee admissions on day one, it would take as long as five years before increased numbers of people actually make it to the United States. Consider that in January 2017, the State Department briefly paused in-bound flights for refugees who had finally made it through the gauntlet of health, security and other checks. As of this summer, some of those refugees were still waiting to leave. While the flights were grounded, they missed the two-month window during which all of their documents were current. When one document expires, it can take months to replace, causing others to expire and trapping the refugee in what the report called “a domino effect of expiring validity periods.”
Even harder to repair is the culture shift within USCIS. New visa adjudicators will remain in their jobs long after the political appointees have gone—kings and queens of their own offices. Employees who were promoted for their skeptical inclinations will stay in those positions, setting priorities for subordinates. The multitude of changes at USCIS are the product of an administration that regards immigration as its political lifeblood. There’s no guarantee—or indication—that any of the potential Democratic nominees would apply the same obsessive zeal to overturning them.
Back in 1924, Johnson-Reed’s supporters never anticipated the Holocaust, and yet they expanded its horrors. We don’t know where our own future is headed, but we live in a time of metastasizing instability. Last year, the United Nations’ official tally of refugees passed 70 million, the highest since World War II. Mass migrations, whether because of violence or inequality or environmental calamity or some murky blend of factors that don’t conveniently fit existing laws, are the reality and challenge of our era. There aren’t any easy solutions. But already, what started as a series of small, obscure administrative changes is resulting in unthinkable cruelty. If left to continue, it will, in every sense, redefine what it means to be American.
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Read Rachel’s entire, much longer, article at the link.
Building Due Process and fundamental fairness is a painstaking incremental process that takes years, sometimes decades, to achieve. Destroying it can happen basically overnight.
This should never have happened if the Supremes had stood up to the Administration’s unconstitutional, factually bogus, racist, religiously targeted “Travel Ban” instead of green-lighting the return of “Jim Crow 2” under a clearly pretextual and fabricated “national security” facade. Judicial complicity and task avoidance enables cruelty and the destruction of democratic institutions (including, ultimately, the independent judiciary). That’s why the “New Due Process Army” is in it for the long run!
Constantly Confront Complicit Courts 4 Change!
Due Process Forever. White Nationalism Never! Complicit Courts Never!
Today’s biggest story set the scene for news that continues to develop about the Ukraine scandal.
The big story, in terms of its ability to frame the crazy events coming at us at top speed, happened last night, when Attorney General William Barr gave a speech to the Federalist Society, a group of conservative and libertarian lawyers who argue for an originalist interpretation of the Constitution. The conviction of members of the Federalist Society that courts should not do anything that is not listed in the original Constitution makes them great friends to business and to white men, since they focus on the protection of property and deny that laws can regulate business, provide a basic social safety net, or protect minority or women’s rights. The Federalist Society organized in 1982 to push back against what its members felt was an activist court system that tried to reorganize society from the bench. It has been extraordinarily successful in taking over the courts: currently five members of the nine-member Supreme Court are current or past Federalist Society members: Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.
In his speech, Attorney General William Barr claimed he was going truly to be an originalist, and explained by taking American history back to its roots. In contrast to every single American historian in, well, American history, Barr argued that Americans had rebelled not against King George III in 1776, but rather against Parliament. What the Founders feared, he said, was not a strong executive, but rather a strong Parliament. (You can tell where this is going, right?) Barr was setting up the idea that Congress has grown far too strong lately (in fact, virtually every scholar will tell you that it is the Executive that has grown terribly strong since 1981) and that it is badly hampering the president’s ability to do his job. The president should be able to act on his own initiative, and not be checked by either congressional or judicial oversight, Barr insisted, in a theory known as that of the “unitary executive.”
Barr did not stop there, though. He went on to blame “The Resistance” for sabotaging the Trump administration, and claimed that its members were “engaged in a war to cripple, by any means necessary, a duly elected government.” More, he claimed “the Left” is “engaged in the systematic shredding of norms and the undermining of the rule of law.” Conservatives, he said, were at a disadvantage against progressive’s “holy war” because they “have more scruple over their political tactics” especially when facing “a hyper-partisan media.” (You might want to reread those last two sentences.)
Richard Painter, who was George W. Bush’s ethics lawyer, called this a “lunatic authoritarian speech.” Attorneys General are supposed to be non-partisan, and Barr lumped all opposition to Trump as the dangerous far left. The “Left,” in America, generally refers to those few people who advocate for communism—a system in which the government owns and controls all industries and businesses– or anarchy, a system in which there is no central authority at all. It’s actually a pretty small group. But Barr, and other recent Republicans, have included in “the Left” everyone who believes that the government has any role to play in regulating business, providing a basic social safety net, and promoting infrastructure, all those things the Federalist Society opposes. In fact, most of us, regardless of whether we vote Republican or Democratic, want some basic regulations, social welfare programs, and infrastructure development.
But now the Attorney General, who is charged with overseeing our justice system, has declared that anyone standing in the way of Trump is not just a member of “the Left” but also is waging war against America. Painter is quite right: this is the language that enables a leader to imprison people he considers his enemies.
Barr is not saying all this in a vacuum. More news dropped today about the Ukraine scandal, filling in the lines we already suspected. Congress released transcripts today from Tim Morrison and Jennifer Williams, both of whom were deeply involved in the Ukraine mess and were on the July 25 call between Trump and Zelensky. A long-time career official in the State Department, Morrison replaced Fiona Hill as the Senior Director for Russia and Europe in July 2019. Williams is another long-standing career officer in the State Department. Since April 2019, she has been the Special Adviser for Europe and Russia for Vice President Mike Pence. Morrison said that Ambassador to the European Union Gordon Sondland made it clear that aid was being withheld until there was an announcement about an investigation into Burisma, the company on whose board Hunter Biden sat.
This jibed with the opening statement of David Holmes, the political counselor at the Embassy in Kyiv, who testified for seven hours yesterday behind closed doors. Holmes was an eye-witness to the efforts of Trump, his lawyer Rudy Giuiliani, and Ambassador to the European Union Gordon Sondland, to pressure the new Ukraine president Volodymyr Zelensky into announcing an investigation into Burisma, the company on whose board Hunter Biden sat. Holmes’s opening statement was explosive. It was not only first hand, but also it tied Trump directly into the efforts, and it made very clear that the administration was demanding the announcement of an investigation before it would release the money Congress had appropriated for Ukraine’s fight against Russian incursions. Holmes also said that he had reported what he had heard to John Eisenberg, Legal Advisor to the National Security Council, the same man to whom Lt. Col. Alexander Vindman had reported the July 25 call, and, once again, Eisenberg had done nothing. (Eisenberg is refusing to honor a subpoena to testify.)
Then, CNN dropped the story that at last year’s White House Hanukkah party Lev Parnas and Igor Fruman met privately with Trump and Giuiliani. After the meeting, Parnas told two people that the president had given him a secret mission to pressure the Ukraine government to investigate Joe and Hunter Biden. The Wall Street Journal reports that in February, Parnas and Fruman met with the Ukraine President at the time, Petro Poroshenko, and his Prosecutor General Yuriy Lutsenko, offering to invite Poroshenko to a White House State dinner if he publicly announced an investigation. As I wrote here two days ago, this would have boosted both Poroshenko’s and Trump’s reelection campaigns. In March, Lutsenko smeared U.S. Ambassador to Ukraine Marie Yovanovitch to an American reporter and Sean Hannity ran with the story on his show, but the scheme fell apart when voters elected Zelensky instead of reelecting the corrupt oligarch Poroshenko. Then they had to scramble to come up with a new plan, and the whole ham fisted Ukraine scandal took off.
The Ukraine scandal is fleshing out, and it is truly astonishing that there is not more evidence that can be read in Trump’s favor. This increasingly just looks like a shakedown that weakened national security to help Trump rig the 2020 election. Meanwhile, in northern Syria, where Turkish and Russian troops moved in when we moved out, the Russians boasted yesterday that they have now occupied a former U.S. air base.
Trump spent several hours today at Walter Reed hospital. The visit was unexpected and unannounced, but the White House said he had decided to have portions of his annual physical done three months early.
Attorney General Bill Barr Is Getting Roasted for His Outrageous Speech Blasting Progressives
As the impeachment hearings continued, Attorney General Bill Barr on Friday trash-talked Democrats for attempting to “drown the executive branch with oversight demands,” saying they were working for political gain without thinking of the consequences.
“In waging a scorched-earth, no-holds-barred war against this administration, it is the left that is engaged in shredding norms and undermining the rule of law,” Barr told a room of attorneys at the annual gathering of the Federalist Society, a conservative legal group that has been influential in determining President Donald Trump’s nominees for federal judges.
The remarks about Democrats ignoring the rule of law were especially ironic because they came a mere hours after Roger Stone, one of Trump’s previous advisers, was convicted on all counts for lying to Congress during its probe into Russia’s interference in the 2016 election. The attorney general’s speech also came on the second day of presidential impeachment hearings examining allegations that Trump attempted to interfere in the 2020 elections by asking Ukrainian President Volodymyr Zelensky to investigate former Vice President Joe Biden and his son Hunter.
Barr criticized Democrats for launching a “holy war” and using “any means necessary to gain momentary advantage,” while he said conservatives “tend to have more scruple over their political tactics and rarely feel that the ends justify the means.”
. . . .
Barr reportedly received a standing ovation, but outside the halls of the Federalist Society, his remarks sparked outrage and intensified calls from the left to impeach not only the president, but the attorney general himself. Others were quick to roast Barr for his statements. “Bill Barr is the type of bare knuckles lawyer the Church would have hired thirty years ago to cover up sex abuse cases,” Richard Painter, a former White House ethics counsel, tweeted.
. . . .
“Yesterday AG Barr addressed a radical political group and gave one of the most vicious partisan screeds ever uttered by a US cabinet officer,” Rep. Bill Pascrell (D-N.J.) tweeted Saturday morning. “Barr says trump should have king-like powers. Barr is a liar and a fanatic and should be impeached and stripped of his law licenses.”
. . . .
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Read Samantha’s complete article which includes the full the two of a number of tweets at the link.
Hours after a new witness testified in the House’s latest impeachment hearing on Friday, Attorney General William Barr railed against Democrats for declaring a “war of resistance against this administration.”
In a speech before the conservative Federalist Society, Barr rebuked lawmakers for probing President Donald Trump’s potential power abuses, suggesting their efforts are illegitimate.
“The sheer volume of what we see today ― the pursuit of scores of parallel investigations through an avalanche of subpoenas ― is plainly designed to incapacitate the executive branch, and indeed is touted as such,” Barr said. “The costs of this constant harassment are real.”
Barr’s portrayal of oversight as harassment echoes Trump’s repeated claims that he is the victim of a partisan “witch hunt” rather than the subject of a justified inquiry into his dealings with Ukraine, which remain at the heart of Democratic-led impeachment proceedings.
“The fact of the matter is that, in waging a scorched earth, no-holds-barred war of resistance against this administration, it is the left that is engaged in the systematic shredding of norms and undermining the rule of law,” Barr added. “This highlights a basic disadvantage that conservatives have had in contesting the political issues of the day.”
President Trump is convinced he has the “absolute right” to do anything from asking other countries to investigate his political opponents to pardoning himself. But he couldn’t possibly tell you why — aside from his innate conviction that “when you’re a star, they let you do it” — you can get away with anything. Enter Attorney General William P. Barr to put a pseudo-intellectual gloss on Trump’s authoritarian instincts. In a Friday night speech to the Federalist Society, Barr gave a chilling defense of virtually unlimited executive authority.
Barr’s wrongheaded assumption was that “over the past several decades, we have seen steady encroachment on presidential authority by the other branches of government.” His view faithfully reflects the conservative consensus of the 1970s when he was a CIA analyst and a law student. Few serious analysts share that view today at a time when the president claims the authority to kill suspected terrorists anywhere in the world without any judicial oversight. In fact, conservatives decried President Barack Obama’s tendency to rule by fiat — for example, in protecting “dreamers” from deportation or reaching a nuclear agreement with Iran that wasn’t submitted for Senate ratification.
Trump has now taken rule-by-executive-order to the next level by declaring a “state of emergency” to spend money on his border wall that Congress refused to appropriate. Trump has also misused his authority in myriad other ways, including obstructing justice (as outlined in a special counsel report that Barr deliberately mischaracterized) and soliciting a bribe from Ukraine to release congressionally appropriated military aid.
Yet, to hear Barr tell it, Trump is somehow denied power by the nefarious “Resistance.” Barr decried Trump critics who do not view “themselves as the ‘loyal opposition,’” but rather “see themselves as engaged in a war to cripple, by any means necessary, a duly elected government.”
Earth to Barr: Trump does not treat his critics as “the loyal opposition.” He calls them “human scum,” “traitors” and “the enemy of the people,” using the language of dictators. And it is Trump and his toadies — not his opponents — who are “willing to use any means necessary to gain momentary advantage.”
Barr went on to blame the “Resistance” for Trump’s failure to get more nominees confirmed. The real problem is Trump’s incompetence and his preference for “acting” appointees to dodge the constitutional requirement to seek the Senate’s “advice and consent.” (Trump has not nominated anyone for nearly 20 percent of the top federal jobs.) If Barr wants to find a real abuse of the confirmation process, he should talk to Merrick Garland.
As devoid of self-awareness as his master, Barr whines about “the pursuit of scores of parallel ‘investigations’ through an avalanche of subpoenas.” He conveniently forgets that Republicans tried to impeach President Bill Clinton for lying about sex and spent years probing the Benghazi, Libya, attack in a failed attempt to blame Hillary Clinton. Trump is stonewalling congressional subpoenas at an unprecedented rate, forcing Congress to seek judicial assistance to enforce legitimate requests for documents and witnesses. But Barr denies that the courts have any right to “resolve … disputes” between the executive and legislative branches — effectively allowing the president to act like a king.
The attorney general went on to rail against judicial review of administration actions such as “the travel ban.” This was ultimately upheld by the Supreme Court after the administration rewrote the initial versions, which constituted clear discrimination on religious grounds. Yet Barr is still aggrieved that the courts dared “to inquire into the subjective motivation behind governmental action” — i.e., to look at Trump’s own words about banning Muslims rather than accept the administration’s disingenuous explanations.
Barr blamed the courts and the president’s critics for the fact that so many administration actions have been challenged in court. The truth is Trump has nobody but himself to blame. Many of the lawsuits accuse the administration of violating the Administrative Procedure Act, which the executive branch can comply with simply by showing that its actions are not “arbitrary and capricious.” This is an incredibly low standard, which is why the normal “win rate” for the government in such cases is about 70 percent. According to the Institute for Policy Integrity at the New York University School of Law, the Trump administration’s win rate is less than 7 percent.
Trump likes to blame such setbacks on “Obama judges,” but many of the judges ruling against him are Republican appointees. Chief Justice John G. Roberts Jr., for example, wrote the 5-to-4 decision in June in which the Supreme Court blocked Trump’s attempt to include a citizenship question on the 2020 Census.
“In this partisan age,” Barr sanctimoniously concluded, “we should take special care not to allow the passions of the moment to cause us to permanently disfigure the genius of our Constitutional structure.” He is right, but not in the way he intended. The real threat to “our Constitutional structure” emanates not from administration critics who struggle to uphold the rule of law but from a lawless president who is aided and abetted in his reckless actions by unscrupulous and unprincipled partisans — including the attorney general of the United States.
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Mary Papenfuss Contributor HuffPost
Finally, let’s hear from Mary Papenfuss, also at HuffPost:
Attorney General William Barr’s latest extreme defense of Donald Trump has triggered a wave of calls for his impeachment — and disbarment.
Richard Painter, the former chief White House ethics attorney in the George W. Bush administration, tweeted that Barr’s remarks Friday before the conservative Federalist Society were “another lunatic authoritarian speech” amid an impeachment investigation into the president. He claimed that Barr — a member of the conservative Catholic society Opus Dei — is “the type of bare knuckles lawyer the Church would have hired thirty years ago to cover up sex abuse cases.”
. . . .
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Read the rest of Mary’s article at the link.
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Somewhat “below the radar screen:” Barr’s repetition of Session’s blatantly unethical performance by acting as a “quasi-judicial decision maker” in Immigration Court cases where he clearly has both an actual and apparent bias in favor of a party, the DHS, and against another party, the individual migrant, particularly any asylum seeker.
Obviously, viewed through Barr’s perverted historical lens, we’ve made some seriously wrong moves.According to Barr’s interpretation, we should have allied ourselves with Hitler during World War II. Now, there’s a guy who understood the concept of the “Unitary Executive.” And, he sure knew how to deal with opposing legislators, “the resistance,” and others who were “enemies of the state” or of “inferior stock.” Why on earth would we have aligned ourselves with, and helped rebuild, the noxious parliamentary democracies of the West?
One of our allies, Stalin, did actually demonstrate the wonderful power of the “Unitary Executive” — talk about a guy who WAS the State and annihilated all opposition, real and imagined! He certainly would have known what to do with subversives who preached “impeachment” under the Constitution!
But, concededly, Stalin’s godless communism doesn’t fit in well with Barr’s Catholic Christian theocracy (minus, of course, the social justice teachings of Christ and the Catholic Church). Hitler’s pure Aryian Christian superiority was a much better fit with Barr’s historical outlook.
Of course, according to the Barr view, the seminal figure in Republicanism, Abe Lincoln, erred by not aligning himself with Jeff Davis and the Confederacy. Davis certainly knew how to operate without much legislative accountability. And the founders of the Confederacy also possessed Barr’s superior understanding of the relationship between the State and the Divine: “establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity — invoking the favor and guidance of Almighty God.”
Sure, easy to believe that God was always a big fan of enslavement, rape, brutality, white privilege, and theft of services from enslaved African Americans, who also happened to be believers in God. Fits right in with Barr’s dehumanization of Hispanic workers, trashing of LGBTQ Americans, denial of rights to asylum seekers, threats to political opponents, and war on Hispanic Americans who have the audacity of wanting to vote and live peacefully in their communities without being terrorized by DHS enforcement.
George Washington, who wrongly refused to install himself as either King or “President for Life” was, according to Barr’s historical perspective, a dangerous wimp who diminished the potential powers of the “Unitary Executive.”
Undoubtedly, our Founders had their flaws. After all, the Constitution not only enshrined the dehumanization of African Americans, who had actually made the success and prosperity of the American Republic possible, but also excluded the majority of inhabitants from political participation.
But, unlike Barr and his fellow “originalists,” our Founders were largely persons of vision and good will who had enough self awareness and humility to see a better and more dynamic future. They would certainly be shocked and dismayed to find out that rather than viewing our Constitution rationally, as a blueprint to be built upon for a better, more inclusive, more tolerant future, two plus centuries later, individuals like Barr holding supposedly responsible positions under our Republic, would be mindlessly and immorally urging us never to escape the limitations and mistakes of our distant past.
Disturbingly unqualified as he is to serve as our Attorney General, Barr does illustrate the moral and legal bankruptcy of the “fake doctrine” of “originalism.” It’s actually an intellectually indefensible excuse for an empowered, largely White, predominantly male, minority to exclude the majority of America’s inhabitants and their hopes and dreams from full participation in our democracy. It’s as ugly and dishonest as Barr’s own tenure as Attorney General.
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.
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.
