Category: Interior Enforcement

HON. LORY DIANA ROSENBERG COMMENTS ON AG’S DECISION IN MATTER OF E-F-H-L-!

 
Paul (and all) – Here is my preliminary response to your Courtside post, which you may publish:

The AG may be motivated by any number of explanations, as Immigration Courtside thoughtfully suggests. Nevertheless, the AG’s cryptic and unreasoned ruling will predictably engender more litigation and take up more court time than arguably may be saved by denying all asylum seekers access to the due process protections codified in the statute and regulations, and reiterated in numerous currently standing BIA precedents and federal circuit court decisions.


First, he vacated a 4 year old precedent decision of the Board of Immigration Appeals, an action that should not be taken lightly. Cf. Matter of E-F-H-L- 26 I&N Dec. 319 (BIA 2014)(remanding with instructions to honor the guarantee iof a full evidentiary hearing on an asylum claim). The AG contends that “[b]ecause the application for relief which served as the predicate for the evidentiary hearing required by the Board has been withdrawn with prejudice, the Board’s decision is effectively mooted.”  Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018).  To the contrary, it is worth noting that, historically, many of the Board’s precedent decisions, which have been rendered moot by federal circuit court reversals or remands, have nonetheless remained in force and served as precedent in all cases other than that of the named respondent.


Assuming the AG’s decision was more than a knee-jerk, irrational, result-oriented response to an IJ’s administrative close order, but a decision fit for an Attorney General,  he is expected to have read the Board’s reasoning in reaching the outcome it reached in E-F-H-L- (BIA). The Board plainly recognized the applicability of the statutory provisions that guarantee “​a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government.” See ​section 240(b)(4)(B) of the Act, 8 U.S.C. § 1229a(b) (4)(B)(2012)​(governing ​procedures in removal proceedings)​.  In contrast, the AG’s opinion contains no reasoning what so ever and reveals no effort to respect the terms of the statute, much less to distinguish them in any way.


Second, the Board’s decision in E-F-H-L- also cited to governing ​”​regulations implementing these statutory provisions in the context of asylum and withholding of removal applications​,” which provide that,

​

  • such applications for relief filed with the Immigration Court will be decided “after an evidentiary hearing to resolve factual issues in dispute,” 8 C.F.R. § 1240.11(c)(3) (2013).

  • ​such an evidentiary hearing will entail​ the respondent “shall be examined under oath on his or her application and may present evidence and witnesses in his or her own behalf,” 8 C.F.R. § 1240.11(c)(3)(iii). ​

  • such regulations also apply to applications for withholding or deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ​(citation omitted).


The Board specifically recognized that “[t]hese regulations clearly give the Immigration Judge ‘the authority . . . to properly control the scope of any evidentiary hearing,’ 8 C.F.R. § 1240.11(c)(3)(ii)  . . .” and to discontinue or limit an evidentiary hearing “in the interests of efficiency, including by limiting testimony and focusing issues.” Nonetheless, the Board ruled in E-F-H-L- that, at a minimum, there must be an evidentiary hearing, which includes “an opportunity for the respondent to present evidence and witnesses in his or her own behalf.” See 8 C.F.R. § 1240.11(c)(3).  In contrast, the AG’s opinion offers no colorable justification for abrogating these regulations, which remain in force, making his action in vacating the Board’s precedent in E-F-H-L- ultra vires.


Third, the Board’s decision refers to numerous Board precedent decisions standing for the principles elucidated concerning the need for taking oral testimony and for a meaningful evidentiary hearing in adjudicating asylum applications. See e.g., ​Matter of Fefe,​ 20 I&N Dec. 116, 118 (BIA 1989); Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987); Matter of Interiano-Rosa, 25 I&N Dec. 264, 266 (BIA 2010); cf. Matter of Ruiz, 20 I&N Dec. 91, 93 (BIA 1989) (holding that in absentia proceedings should have been reopened once the alien established reasonable cause for his failure to appear, because he retained the right to present his asylum claim at a full evidentiary hearing, regardless of whether prima facie eligibility for relief had been shown).Matter of C-B-, 25 I&N Dec. 888, 890−91 (BIA 2012);

Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998).  No matter what the Attorney General’s vacation of the Board’s E-F-H-L- precedent is read to mean, the AG fails to indicate that any of these other Board precedents governing evidentiary hearings are disturbed or no longer in effect and they remain in force.


What is more, the Board’s decision recognized that numerous federal courts of appeal nationwide have endorsed and upheld the statutory and regulatory promise of a full and fair evidentiary hearing. See e.g., Litvinov v. Holder, 605 F.3d 548, 555−56 (8th Cir. 2010); Hoxha v. Gonzales, 446 F.3d 210, 214, 217−18 (1st Cir. 2006); Arulampalam v. Ashcroft, 353 F.3d 679, 688 (9th Cir. 2003).  See also Sankoh v. Mukasey, 539 F.3d 456, 467 (7th Cir. 2008); Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006); Mekhoukh v. Ashcroft, 358 F.3d 118, 129 & n.14 (1st Cir. 2004); cf. Oshodi v. Holder, 729 F.3d 883, 889−93 (9th Cir. 2013) (en banc) (holding that an alien’s Fifth Amendment due process right to a full and fair hearing, which includes the opportunity to present evidence and testify on one’s behalf, was violated where the Immigration Judge denied relief solely on an adverse credibility finding after refusing to allow the alien to testify to the contents of his applications).  Notably, the AG’s decision vacating E-F-H-L- does not trigger Brand X  authority such that the rulings of these federal courts are supplanted or no longer control administrative hearings taking place within the jurisdiction of those courts.


Accordingly, for reasons of statutory, regulatory, and administrative precedential authority, and reasons of federal acquiescence, the AG’s vacation of Matter of E-F-H-L has no impact on the right to an evidentiary hearing on an asylum application.  By the AG’s own admission in the case vacated, upon remand, the respondent had withdrawn his asylum application with prejudice in favor of administrative closure to permit an I-130 petition to be adjudicated.  Thus, the AG’s ruling vacating E-F-H-L- cannot stand for any principled holding with respect to the right to an evidentiary hearing in asylum cases.


In fact, the IJ’s order of administrative closure of the removal hearing, while allowing USCIS to engage in a timely adjudication of a petition that ultimately might confer lawful status on the respondent, had the mutually beneficial effect of freeing up the court’s time to attend to its heavily backlogged docket. Upon recalendaring in the instant case,  the respondent may wish to challenge his previous “withdrawal with prejudice” and seek to re-raise his asylum claim on due process grounds.


Moreover, in light of the AG’s decision, respondents in general would be well-advised to exercise their statutory and regulatory rights to a full evidentiary hearing in their asylum claims, notwithstanding the potential availability of other forms of relief. Likewise, attorneys would be well-advised to consider their obligations in relation to Matter of Lozada, before counseling respondents to withdraw viable applications. The AG’s decision sends a clear message that notwithstanding their best intentions, IJs intentions to fairly resolve removal hearings may be disrupted without notice.


Beyond inefficiently and ineffectively usurping the IJ’s authority to control his or her docket, it is unclear  just what the AG intended to accomplish. We are left, perhaps, with much “sound and fury, signifying nothing.” Shakespeare, Macbeth Act 5, scene 5.


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I agree with Lory’s analysis.
Sessions doesn’t do anything without a reason.
We know that:
1) He falsely claims that asylum fraud is a primary contributing factor to the presence of 11 million undocumented individuals. (It isn’t! The vast bulk of the “11 million” were never in the asylum system. I didn’t do the math, but I doubt that there have been anything approaching 11 million asylum applications since the enactment of the “Refuge Act of 1980. While there no doubt have been documented instances of asylum fraud, they would account for only an infinitesimally small portion of the 11 million — mostly law-abiding and productive — undocumented residents trashed by Sessions. Moreover, those engaged in asylum fraud often are eventually exposed and removed and/or jailed).
2) He appears to want to eliminate or severely limit administrative closing which has helped control and rationalize Immigration Court dockets.
3) He wants to dishonestly shift the blame for the backlog from the DOJ which is responsible for “Aimless Docket Reshuffling” over several Administrations to the private bar.
4) He is opposed to prosecutorial discretion and prioritization which are the foundation of all other functioning parts of the U.S. justice system.
5) He has no respect for immigrants (legal or undocumented), our Constitution, the law, or any judge who disagrees with his extreme right-wing xenophobic views.
All of this spells big trouble for the already failing U.S. Immigration Court System and lots of wasteful, additional litigation to vindicate migrants’ statutory and Constitutional rights.
Go New Due Process Army!
PWS
03-07-17

Related posts:

  1. THE HILL: NOLAN SAYS THERE IS A BETTER WAY TO ADDRESS PROBLEMS AT ICE
  2. “THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT” — My Speech To The Association Of Deportation Defense Attorneys, NY City, March 21, 2019
  3. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  4. REPORT # 2 FROM FBA, AUSTIN: Read My Speech “APPELLATE LITIGATION IN TODAY’S BROKEN AND BIASED IMMIGRATION COURT SYSTEM: FOUR STEPS TO A WINNING COUNTERATTACK BY THE RELENTLESS ‘NEW DUE PROCESS ARMY’”

US DISTRICT JUDGE ROGER W. TITUS IN MD REJECTS DACA CHALLENGE — Basically Finds Rescission Dumb But Legal, While Barring DHS From Using DACA Info In Removal Proceedings — Casa de Maryland v. DHS

Casa de Maryland v. DHS, D. MD., 03-05-18, Judge Roger W. Titus

While the Administration and right-leaning media are touting this as a  “smashing victory” here’s what District Judge Titus really said:

  • The original Obama Administration DACA program was an exercise of prosecutorial discretion on which reasonable minds can differ as to its legality.
  • The Trump Administration had discretion either to continue the DACA program or not as an exercise of prosecutorial discretion.
  • The decision by the Administration to phase out DACA was subject to judicial review and the plaintiffs had standing to challenge it.
  • The DHS’s decision to phase out DACA upon receiving an opinion from Attorney General Sessions that it might well be held illegal in a threatened court action was reasonable.
  • The sometimes ill-advised and inflammatory statements by President Trump were not relevant to the basis for termination of DACA.
  • Although Judge Titus personally would have chosen a different policy approach from that of the Administration, under Constitutional separation of powers that policy decision was vested in the Executive and Congress, not the Courts, and the Administration had acted reasonably in this case.
  • The DHS is estopped from using information gathered during the DACA application process against individuals in Removal Proceedings except if “the Government needs to make use of an individual Dreamer’s information for national security or some purpose implicating public safety or public interest, the Government may petition the Court for permission to do so on a case-by-case basis with in camera review.”

Judge Titus’s decision actually more or less undermines the Administration’s frequent claims that DACA was “illegal” and that the Administration had “no choice” but to terminate it. Rather, the court held that legitimate unresolved questions had been raised about the DACA program’s legality and that in the face of those questions the Administration’s choice to proceed with a phased termination rather than trying to defend DACA in court was reasonable.

Additionally, as I had predicted, the court was unwilling to allow DHS to use DACA information against the individuals in Removal Proceedings. While this aspect of the case was :”under the radar” in most reports, it could well be another major practical/legal roadblock to the Administration’s actually removing many DACA recipients even if the injunctions against DACA termination eventually are lifted.

Here’s a “KEY QUOTE” from Judge Titus’s decision:

“The result of this case is not one that this Court would choose if it were a member of a different branch of our government. An overwhelming percentage of Americans support protections for “Dreamers,” yet it is not the province of the judiciary to provide legislative or executive actions when those entrusted with those responsibilities fail to act. As Justice Gorsuch noted during his confirmation hearing, “a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for the policy results he prefers rather than those the law compels.”

This Court does not like the outcome of this case, but is constrained by its constitutionally limited role to the result that it has reached. Hopefully, the Congress and the President will finally get their job done.”

In other words, the decision to rescind DACA was “dumb but legal.” Hardly the ringing endorsement that the Trumpsters claim. What this case actually did is to vindicate their right to make bad policy decisions. Ultimately, the remedy for that type of poor governance is at the ballot box.

Here’s the full decision in Casa de Maryland v. DHS so you can judge for yourself:

JudgeTitusDACAOp

PWS

03-06-18

 

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  4. JAMES HOHMANN @ WASHPOST DAILY 202 — TRUMP, GOP DON’T APPEAR SERIOUS ABOUT PROTECTING DREAMERS OR IMMIGRATION REFORM — RATHER, SEEK WAYS TO ADVANCE INTENTIONALLY DIVISIVE, RACIALLY BIASED, “FACT-FREE” WHITE NATIONALIST AGENDA! — Plus, My Point By Point Analysis Of Why The Democrats Should “Hang Tough” On A Dreamer Deal!

SESSIONS “GOES DEEP” TO UNDERMINE DUE PROCESS! — Matter of E-F-H-L-, 27 I&N Dec. 226 (A.G. 2018)!

Here is the AG decision:

E-F-H-L-AG

And here’s the original BIA precedent he vacated:

E-F-H-L-2014

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Sessions, on his own initiative, reaches back four years to vacate the BIA’s precedent decision Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014). That case held that an asylum or withholding applicant is entitled to a full hearing on his or her application. That hearing includes a chance to testify and present evidence to the Immigration Judge. The respondent is not required to present a “prima facie case” for an asylum grant to get a full hearing.

The “original” case had since been closed for I-130 adjudication, after the respondent withdrew his I-589 with prejudice. Sessions ordered that the case be restored to the Immigration Court’s “active” docket and set for a hearing.

Session’s decision was cryptic — without any explanation of why he chose this case and what he hoped to accomplish. However, a number of “preliminary theories” have surfaced, none of them good news for asylum seekers:

  1. Sessions wants to do away with full hearings for asylum seekers and establish some type of “summary dismissal without hearing” process for those who fail to establish a “prima facie case” for asylum or withholding;
  2. Sessions is using this case to attack administrative closing as a prelude to eliminating or severely restricting the Immigration Judges’ authority to administratively close cases in Matter of Castro-Tum;
  3. Sessions wants to send a message to Immigration Judges that every administrative closing will be subject to potential review and reversal from “on high,” with potential “career limiting” consequences for the Judges, thereby discouraging administrative closing;
  4. Sessions wishes to illustrate and eliminate the potential for lawyers to use “weak” asylum claims that they subsequently withdraw to manipulate the system to gain time to apply for other relief;
  5. Sessions wants to establish that an Immigration Judge’s authority upon BIA remand is limited to the “four corners” of the BIA’s remand order and does not allow the respondent to seek or raise other remedies.
  6. All five of the preceding.

PWS

03-06-18

 

Related posts:

  1. TAL @ CNN TELLS ALL ON HOW SESSIONS IS USING HIS AUTHORITY OVER THE SCREWED UP U.S. IMMIGRATION COURTS TO ATTACK DUE PROCESS & TARGET VULNERABLE ASYLUM SEEKERS — One Of My Quotes: “I think due process is under huge attack in the immigration courts. Every once in a while Sessions says something about due process, but his actions say something quite different.”
  2. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  3. CHRISTIE THOMPSON @ THE MARSHALL PROJECT: SESSIONS’S APPARENT ATTACK ON “ADMINISTRATIVE CLOSING” IN U.S. IMMIGRATION COURT COULD FURTHER SCREW UP ALREADY FAILING SYSTEM — It Wasn’t A Problem, But Is Likely To Become One By The Time He’s Finished By Stripping Judges Of Last Vestiges Of Independent Authority Over Their Mushrooming Dockets! – I’m Quoted In This Article!
  4. “THE 5-4-1 PLAN FOR DUE PROCESS IN IMMIGRATION COURT” — My Speech To The Association Of Deportation Defense Attorneys, NY City, March 21, 2019

THE GUARDIAN: USCIS TURNS ITS BACK ON THE REAL AMERICA – “TRULY A NATION OF IMMIGRANTS!” – “The recent barrage of exclusionary immigration policy proposals are attempts to sow the seeds of fear, anxiety, and distrust. Rather than pursue policies that set immigrants apart, we should seek to integrate immigrants and highlight the assets they bring to communities across our nation.”

https://www.theguardian.com/commentisfree/2018/mar/02/america-nation-immigrants-uscis-deleted?CMP=Share_iOSApp_Other

Professors Linda R. Tropp and Dina G. Okamoto write in The Guardian:

“For more than a century, the identity of the United States has been grounded in the notion that we are a “nation of immigrants.” Immigrants have made innumerable contributions to our economy, infrastructure, and culture – building our railroads and bridges, bringing innovation and new ideas, and settling in communities that thrive throughout our country today. But now, the United States Citizenship and Immigration Services (USCIS), a federal agency charged with immigrant affairs, has turned its back on this rich legacy.

As of last week, the mission statement of the USCIS has changed. No longer does its mission speak to “America’s promise as a nation of immigrants” that promotes “an awareness and understanding of citizenship” along with “ensuring the integrity of our immigration system.” Now, the new version focuses on “adjudicating requests for immigrant benefits” while “protecting Americans” and “securing the homeland”.

Why do changes to the USCIS’s mission statement matter? It may seem like just a few words, but this new language is happening within the context of other alarming changes to our national immigration policies and practices.

Refugee admissions have been curbed to a historic low, and people with “temporary protected status” who fled their homelands due to natural disasters or civil wars are being sent back.

Several crucial programs are at risk of being terminated, including programs that allow 50,000 people from countries underrepresented in current immigration streams to come to the US, pathways for those who arrived in the US as children without legal documents to remain in the US to work and attend school, and the family-based system of immigration – a cornerstone of US immigration policy – which allows US citizens to reunite with family members by sponsoring their migration to the US.

All of these changes have been presented under the guise of protecting against threats to our national security. But these policies stand in stark contrast to the will of the American people. Despite increased attention on anti-immigrant sentiments, Americans across the country largely embrace immigrants of all faiths and cultures and want our government to do the same.

Most Americans believe the numbers of immigrants coming to the United States should be kept at its present level or increased. And 60% percent of Americans oppose building a wall on our border with Mexico. Nearly three-quarters of Americans now supportgranting legal status to immigrants originally brought to the US without papers as children, driven by the same moral imperative that has guided family reunification efforts over the last 50 years.

These levels of endorsement in national polls are bolstered by the actions of US citizens from many walks of life who have taken to the streets in protest, boldly stating that “immigrants are welcome here”.

Indeed, across the country, people and communities have been sending the clear message that immigrants are not only welcomed, but valued. Hundreds of local governments have advocated for their cities and towns to be recognized as “welcoming cities” for immigrants.

Spanning from the industrial rust-belt of the midwest to our nation’s borders, civic leaders have gone to great lengths to welcome immigrants, because they open up new businesses, populate local schools, revitalize housing markets, and infuse new life into local communities. And while the majority of immigrants in the US are here legally, nearly 500 US cities have chosen to become “sanctuary cities” to protect immigrants without legal status from deportation, even at the risk of losing federal funding.

These actions by everyday Americans uphold our nation’s values and reflect the best of who we are as a country, while our federal immigration policies are seeking to close doors and build walls. One of the best ways to honor our values as a nation is not to close opportunities to immigrants, but to successfully integrate them into the fabric of our society. As researchers who have been studying immigration and race relations for 20 years, our research shows that one of the best ways to integrate immigrants into the fabric of society is to interact with and welcome them.

Such encouraging effects of contact between US citizens and immigrants are not limited to big cities or liberal-leaning areas. Recent immigrants have established themselves both in diverse urban areas and new destinations across the United States.

According to recent poll data, more than 75% of US adults report that there are immigrants living in their community, with about a quarter (27%) reporting many recent immigrants in the community where they live. Our surveys of US citizens, including both white and black Americans, show that the more they encounter and interact with immigrants, the more inclined they are to welcome them into their communities.

This significance of welcoming does not simply serve to express our national values or concern about immigrants and their wellbeing. Welcoming immigrants is also important for creating a shared sense of identity and community within our nation. Parallel surveys we have conducted with immigrants show that the more they feel welcome by Americans, the more they come to identify as American themselves and to seek to become US citizens – factors that can fuel greater civic participation and contributions to our society.

The recent barrage of exclusionary immigration policy proposals are attempts to sow the seeds of fear, anxiety, and distrust. Rather than pursue policies that set immigrants apart, we should seek to integrate immigrants and highlight the assets they bring to communities across our nation.

  • Linda R Tropp is a professor of social psychology at the University of Massachusetts Amherst. Dina G Okamoto is the director of the Center for Research on Race and Ethnicity in Society at Indiana University. They are both visiting scholars at the Russell Sage Foundation.”

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Trump and the GOP restrictionists are trying to “whitewash” American history by denying and downplaying the achievements of immigrants, particularly those of color, without which American could never have survived and prospered. Don’t let them get away with their disingenuous and anti-historical efforts. Don’t let this (unjustifiably) disgruntled minority of (largely White, badly misinformed) Americans hijack our country and its future.

PWS

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PROFESSOR DANIEL PENA — Supremes Anti-Latino Decision In Jennings v. Rodriguez Threatens The Due Process Rights of All Americans — When The Thugs Come for YOU, Who Will Stand Up For YOUR Rights If YOU Stand By While Others’ Rights Are Trashed?

https://www.nbcnews.com/think/opinion/supreme-court-s-latest-immigration-ruling-formalizes-terror-against-latinos-ncna851966

Pena writes:

“The U.S. Supreme Court ruling in Jennings v. Rodriguez on Tuesday is a bizarre and dark new development in the American experiment. Not only because it’s a breakdown of the court’s ability to properly interpret the constitution (as they formally institutionalize a de facto second class of citizens), but because it’s a dereliction of the court’s duty as a part of a system of checks and balances designed to protect the constitutional rights of people in this country, regardless of country of origin, from a tyrannical government that would subvert our founding document for political or racist ends.

This ruling only formalizes what many of us in the Latinx community have known for generations: that the perpetuation of systems and laws that instill fear in immigrants (detained or not) is a form of state-sponsored terror. Now the court is complicit and part of that terror. And as pathways to legal status for immigrants come under attack by the current administration, this kind of terror is increasingly designed to incarcerate people for no other reason than for their inability to access pathways toward legal status — which is how this ruling will likely be used by this current administration.

The court ruled in Jennings v. Rodriguez that all immigrants, even those with protected legal status or asylum seekers, do not have a right to periodic bond hearing after detention, which makes it possible for them to be detained indefinitely. The defendant, Alejandro Rodriguez, who was brought to the United States from Mexico as an infant and became a permanent legal resident, was detained for three years for joy riding and possession of a controlled substance; the ACLU was fighting for his right to a hearing.

 A U.S. Immigration and Customs Enforcement (ICE) agent. David Maung / Bloomberg Via Getty Images

It comes a day after another Supreme Court decision not to rule on the Obama-era Deferred Action for Childhood Arrivals program, which in effect leaves that program safe for at least another year. But while the ruling on DACA might give the impression of an impartial system of courts, the latter development undermines that illusion by giving this discriminatory Trump administration its seal of approval in the name of the law.

All three branches are now in sync with their consensus to terrorize detained immigrants, documented and undocumented alike. And the explicit message of this ruling against Rodriguez is that, no matter your legal status, the constitution does not work for you if you’re an immigrant. You can be extracted from the American fabric for seemingly arbitrary reasons, by virtue of that now-institutionalized second class status.

What we’ve seen is the majority of this court, our last branch of un-bought government, actively buying out of the idea of America as a melting pot, as a nation of immigrants who deserve certain unalienable rights, not unlike life, liberty and the pursuit of happiness.

 U.S. Immigration and Customs Enforcement agents serve an employment audit notice at a 7-Eleven convenience store on January 10, 2018, in Los Angeles. Chris Carlson / AP

This should be a wake-up call to anyone who thought (maybe still thinks) that they have nothing to fear because they are documented, or that they have nothing to fear because they’re not Latinx, or that they have nothing to fear because they are another type of immigrant, or they have nothing to fear because they’ve done nothing wrong. The ruling makes it possible to target, criminalize and then indefinitely detain someone for no other offense than being systematically denied a pathway toward legal status in the first place — or even if they did.”

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Read Pena’s full article at the link.

I’ve pointed out before that it’s still not clear on what side of history this version of the Supremes stand. So far, as a group, they have shown little backbone or desire to stand up to the Trump Administrations’s all-out assaults on the Constitution, the “rule of law,” and human rights. That could be a big mistake, since the Trumpsters, to a man (not many women in the “land of misogyny”) have shown total disrespect and disdain for judges at all levels, particularly Federal Judges.

Latinos must get to the polls in larger numbers and “un-elect” at all levels a GOP that has largely gone over to a White Nationalist, anti-Latino racist agenda. Votes are power! That’s why the GOP cherishes voter suppression and gerrymandering so much.

PWS

03-04-18

 

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  1. 🤡CLOWN CAPITOL:  J.R. PRESIDES OVER GOP CLOWN SHOW HE HELPED CREATE — Empowering The Koch Bros, Suppressing Minority Votes, Enabling GOP Gerrymandering, Ignoring Invidious Racial & Religious Motives, Turning A Blind Eye To Lies & Pretexts, It All Contributed To The Arrogant Display Of GOP Dishonesty & Impunity Now On Public Display In The Senate! — Plus Bonus Friday Mini-Essay: “Profiles in Fecklessness”
  2. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  3. MARK JOSEPH STERN @ SLATE: GONZO’S GONE! — Bigoted, Xenophobic AG Leaves Behind Disgraceful Record Of Intentional Cruelty, Vengeance, Hate, Lawlessness, & Incompetence That Will Haunt America For Many Years!
  4. JAMELLE BOUIE @ SLATE: TRUMP, SESSIONS, MILLER & THE GOP RESTRICTIONISTS HAVE PUT GOOD OL’ 1920S RACISM AT THE FOREFRONT OF THEIR WHITE NATIONALIST IMMIGRATION AGENDA! –“What good does it do to bring in somebody who’s illiterate in their own country, has no skills, and is going to struggle in our country and not be successful? . . . That is not what a good nation should do, and we need to get away from it.” — J. “Gonzo Apocalypto” Sessions, Attorney General of the United States of America & Unapologetic White Nationalist With A Long History Of Racism!

BIA EXPOSEE: DID THE BIA SUPPRESS EVIDENCE IN MATTER OF J-C-H-F- THAT WOULD HAVE DIRECTLY UNDERMINED THEIR ANTI-IMMIGRANT RULING? — HON. JEFFREY CHASE THINKS SO, & HE HAS THE EVIDENCE TO BACK UP HIS CHARGE!

https://www.jeffreyschase.com/blog/2018/3/2/matter-of-j-c-h-f-an-interesting-omission

 

Mar 2 Matter of J-C-H-F-: An Interesting Omission

In its decisions involving claims for protection under Article III of the U.N. Convention Against Torture, the BIA defines “government acquiescence” to include “willful blindness” by government officials.

In its recent decision in Matter of J-C-H-F-, the BIA addressed the criteria an immigration judge should use in assessing the reliability of a statement taken from a newly-arrived non-citizens at either an airport or the border. The BIA largely adopted the criteria set out by the U.S. Court of Appeals for the Second Circuit in its 2004 decision in Ramsameachire v. Ashcroft.

Ramsameachire set out four reasonable factors for consideration: (1) whether the record of the interview is verbatim or merely summarizes or paraphrases the respondent’s statements; (2) whether the questions asked were designed to elicit the details of the claim, and whether the interviewer asked follow-up questions to aid the respondent in developing the claim; whether the respondent appears to have been reluctant to reveal information because of prior interrogation or other coercive experiences in his or her home country; and (4) whether the responses to the questions suggest that the respondent did not understand the questions in either English or through the interpreter’s translation.

Both the Second Circuit in Ramsameachire and the BIA in J-C-H-F- applied these criteria to the statement in question in their respective cases; both found the statement reliable, which led to an adverse credibility finding due to discrepancies between the statement and later testimony. But there is a big difference between the two cases. Ramsameachire was decided one year before the U.S. Commission on International Religious Freedom (USCIRF), which is part of the U.S. government, published the first of its two reports (in 2005 and 2016) assessing the expedited removal system in which Bureau of Customs and Border Patrol (CBP) officers encounter arriving asylum seekers. USCIRF conducted field research over several years before issuing each report. As I wrote in an earlier blog post summarizing these reports, USCIRF’s first recommendation to EOIR was to “retrain immigration judges that the interview record created by CBP is not a verbatim transcript of the interview and does not document the individual’s entire asylum claim in detail, and should be weighed accordingly.”

As I already noted in my prior post, USCIRF described its findings of the airport interview process as “alarming.” It found that the reports were neither verbatim nor reliable; that they sometimes contained answers to questions that were never asked, that they indicate that information was conveyed when in fact it was not. USCIRF found that although the statements indicated that they were read back, they usually were not, and that a CBP officer explained that the respondent’s initials on each page merely indicated that he or she received a copy of each page, and not that the page was read back to the respondent and approved as to accuracy.

The Second Circuit in Ramsameachire would have no way of knowing any of this, and therefore reasonably considered the statement to be a verbatim transcript which had been read back to the respondent, whose initials on each page were deemed to indicate approval of the accuracy of its contents. But the BIA in 2018 could claim no such ignorance. USCIRF had specifically discussed its reports at a plenary session of the 2016 Immigration Judge Legal Training Conference in Washington D.C., where the report’s co-author told the audience that the statements were not verbatim transcripts in spite of their appearance to the contrary. As moderator of the panel, I pointed out the importance of this report in adjudicating asylum claims. The person in charge of BIA legal training at the time was present for the panel, and in fact, had the same panelists from USCIRF reprise its presentation two months later at the BIA for its Board Members and staff attorneys. I personally informed both the chair and vice-chair of the BIA of the report and its findings, and recommended that they order a hard copy of the report. The report was even posted on EOIR’s Virtual Law Library, which at the time was a component of the BIA, under the supervision of the vice-chair (along with training and publication). I can say this with authority, because I was the Senior Legal Advisor at the BIA in charge of the library, and I reported directly to the BIA vice-chair.

In spite of all of the above, J-C-H-F- simply treats the statement as if it is a verbatim transcript, and noted that the pages of the statement were initialed by the respondent; in summary, the Board panel acted as if the two USCIRF reports did not exist. Very interestingly, sometime in 2017, the USCIRF report was removed from the EOIR Virtual Law Library. Based on my experience overseeing the library, I can’t imagine any way this could have happened unless it was at the request of the BIA vice-chair. But why would he have required the report’s removal?

If any reader has information as to when J-C-H-F- was first considered for possible precedent status by the BIA, please let me know via the contact link below.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

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I can largely corroborate what Jeffrey is saying. I, of course, have been gone from “The Tower” for 15 years.

But I know 1) that BIA judges and staff were present during the USCIRF sessions at the Annual Immigration Judges Conference (in fact, I believe it was “required training” on religious asylum claims), 2) as an Immigration Judge I had access to the Annual Reports of the USCIRF and used them in my adjudications; 3) I was well aware, and believe that any competent EOIR judge would also have been aware, that airport statements and statements taken by the Border Patrol were a) not verbatim, and b) often unreliable for a host of reasons as pointed out by the USCIRF.

I am certainly as conscious as anyone of the precarious positions of BIA Appellate Immigration Judges as administrative judges working for the Attorney General. I’m also very well aware of the human desire for self-preservation, job preservation, and institutional survival, all of which are put in jeopardy these days by siding with immigrants against the DHS in the “Age of Trump & Sessions,” where “the only good migrant is a deported migrant.”

But, the job of a BIA Appellate Immigration Judge, or indeed any Immigration Judge, is not about any of these things. It’s about “guaranteeing fairness and due process for all.”

That means insuring that migrants’ rights, including of course, their precious right to Due Process under our Constitution, are fully protected. Further, an EOIR judge must insure that the generous standards for asylum set forth by the Supreme Court in Cardoza-Fonseca and by the BIA itself in Matter of Mogharrabi are fully realized, not just “rote cited.”

If standing up for migrants’ rights turns out to be job threatening or institutionally threatening, then so be it. Lives are at stake here, not just senior level US Government careers, as important as I realize those can be!

Unfortunately, I think today’s BIA has become more or less of a “shill” for the enforcement heavy views of Jeff Sessions, DHS, the Office of Immigration Litigation, and the Trump Administration in general.

What good is “required training” in adjudicating asylum requests based on religion if the BIA and Immigration Judges merely ignore what is presented? It isn’t like DHS or CBP had some “counterpresentation” that showed why their statements were reliable.

Indeed, I had very few DHS Assistant Chief Counsel seriously contest the potential reliability issues with statements taken at the border. And never in my 13 years on the bench did the DHS offer to bring in a Border Patrol Agent to testify as to the reliability or the process by which these statements are taken.

I can’t imagine any other court giving border statements the weight accorded by the BIA once the problems set forth in the USCIRF Report were placed in the record. And, I’m not aware that the DHS has ever set forth any rebuttal to the USCIRF report or made any serious attempt to remedy these glaring defects.

We need an independent Article I United States Immigration Court that guarantees Due Process and gives migrants a “fair shake.” Part of that must be an Appellate Division that functions like a true appellate court and holds the Government and the DHS fully accountable for complying with the law.

PWS

03-03-18

Related posts:

  1. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  2. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  3. HERE’S WHY NIELSEN’S LATEST ATTACK ON REFUGEES AND THE RULE OF LAW COULD BACKFIRE! – ALSO, AN ADDENDUM: “MY MESSAGE TO THE NDPA”
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

LAUREN MARKHAM IN THE NEW REPUBLIC: Why “Trumpism” Ultimately Will Fail – Those Ignorant of Human History & Unwilling To Learn From It Will Just Keep Repeating The Same Expensive Mistakes – “One tragic lesson of the extra-continentales is that no set of governments, however callous, can solve the migration crisis by closing its doors to refugees seeking shelter. . . . The doors will not hold, and neither will the fences. You can build a wall, but it will not work. Desperate people find a way.”

https://newrepublic.com/article/146919/this-route-doesnt-exist-map

“How efforts to block refugees and asylum-seekers from Europe have only made the global migration crisis more complex and harrowing

By LAUREN MARKHAM

By 7 p.m., the sun had set and groups of young men had begun to gather inside a small, nameless restaurant on a narrow street in Tapachula, Mexico. Anywhere else in the city, a hub of transit and commerce about ten miles north of the Guatemalan border, there would be no mistaking that you were in Latin America: The open colonial plaza, with its splaying palms and marimba players, men with megaphones announcing Jesus, and women hawking woven trinkets and small bags of cut fruit suggested as much. But inside the restaurant, the atmosphere was markedly different. The patrons hailed not from Mexico or points due south but from other far-flung and unexpected corners of the globe—India, Pakistan, Eritrea, Cameroon, Sierra Leone, Congo. Men, and all of the diners were men, gathered around tables, eating not Mexican or Central American fare but steaming plates of beef curry, yellow lentils, and blistered rounds of chapati. The restaurant’s proprietor, a stern, stocky Bangladeshi man in his thirties named Sadek, circulated among the diners. He stopped at one table of South Asian men and spoke to them in Hindi about how much they owed him for the items he’d collected on their tab. The waitress, patiently taking orders and maneuvering among the crowds of men, was the only Spanish speaker in the room.

Outside, dozens of other such men, travelers from around the world, mingled on the avenue. They reclined against the walls of restaurants and smoked cigarettes on the street-side balconies of cheap hotels. They’d all recently crossed into the country from Guatemala, and most had, until recently, been held in Tapachula’s migrant detention center, Siglo XXI. Just released, they had congregated in this packed migrants’ quarter as they prepared to continue their journeys out of Mexico and into the United States. They had traveled a great distance already: a transatlantic journey by airplane or ship to Brazil; by car, bus, or on foot to Peru, Ecuador, and Colombia; through Panama, Costa Rica, and Nicaragua; on to Honduras, Guatemala, and into Mexico. Again and again, I heard their itinerary repeated in an almost metronomic cadence, each country a link in a daunting, dangerous chain. They’d crossed oceans and continents; slogged through jungles and city slums; braved detention centers and robberies; and they were now, after many months, or even longer, tantalizingly close to their final goal of the United States and refugee status.

Police in Tapachula, a Mexican city used as a waypoint for migrants known as extra-continentales, patrol past a Cameroonian traveler (in a striped shirt).

They are the extreme outliers of a global migration crisis of enormous scale. Today, more than 65 million people around the world have been forced from their homes—a higher number than ever recorded, as people flee war, political upheaval, extreme poverty, natural disasters, and the impacts of climate change. Since 2014, nearly 2 million migrants have crossed into Europe by sea, typically landing in Italy or Greece. They hail from dozens of countries, but most are from Syria, Afghanistan, Iraq, and Nigeria—countries struggling with war, political repression, climate change, and endemic poverty.

Their passage to supposed safety, which takes them across Libya and the Sinai, as well as the Mediterranean, has become increasingly perilous. According to the United Nations High Commissioner for Refugees, nearly 150,000 people crossed the Mediterranean in 2017. More than 3,000 are believed to have drowned. Stories of detention in Libya, as well as physical and sexual abuse, are commonplace among those who manage to make it to Europe. A recent CNN report depicted a Libyan slave auction, where people were being sold for as little as $400. Even the lucky ones who wash up on Europe’s shores may end up stuck for years in transit camps and detention centers in the south of the continent, in some cases only in the end to be deported. In 2013, in an effort to curb migration and ease the burden of migrants within its borders, the European Union began ramping up deportations. In 2016, nearly 500,000 people were deported from Europe.

While the global drivers of migration have not subsided—devastation in Syria and Afghanistan, political repression in parts of sub-Saharan Africa—200,000 fewer migrants attempted to cross into Europe in 2017 than the year before. In response to the migrant crisis, European countries have sent strong messages that newcomers are no longer welcome; they’ve built fences to stop refugees from crossing their borders and elected far-right politicians with staunchly anti-immigrant messages. Meanwhile, most asylum cases are stalled in overburdened court systems, with slim prospects for any near-term resolution, which leaves many migrants stuck in the wicked limbo of a squalid, under-resourced refugee camp or austere detention facility. Today, European authorities have stiffened their resistance not only to new arrivals, but to the hundreds of thousands of asylum-seekers who arrived years before and remain in an eerie liminal zone: forbidden to live or work freely in Europe and unwilling, or often unable, to go home.

Because of the high risks of crossing and the low odds of being permitted to stay, more and more would-be asylum-seekers are now forgoing Europe, choosing instead to chance the journey through the Americas that brings them to Sadek’s restaurant in Tapachula. Each year, thousands of migrants from the Middle East, Africa, and Asia make their way to South America and then move northward, bound for the United States—and their numbers have been increasing steadily. It’s impossible to know how many migrants from outside the Americas begin the journey and do not make it to the United States, or how many make it to the country and slip through undetected. But the number of “irregular migrants”—they’re called extra-continentales in Tapachula—apprehended on the U.S. side of the border with Mexico has tripled since 2010.

They remain a tiny fraction of the hundreds of thousands of Mexicans and Central Americans crossing into the United States. But it is a hastening trickle that may well become a flood. “These ‘extra-continental’ migrants will probably increase,” said Roeland De Wilde, chief of mission for the International Organization for Migrationin Costa Rica, “given the increased difficulties in entering Europe, relative ease of entry in some South American countries, and smugglers’ increased organization across continents.”

A migrant from Bangladesh, Sadek (in a red shirt) is part restaurateur, part migratory middleman. He can help a traveler with a good meal—or a good travel agent or immigration attorney.

One tragic lesson of the extra-continentales is that no set of governments, however callous, can solve the migration crisis by closing its doors to refugees seeking shelter. All Europe has done is redirect the flow of vulnerable humanity, fostering the development of a global superhighway to move people over this great distance. The doors will not hold, and neither will the fences. You can build a wall, but it will not work. Desperate people find a way.

“Cette route,” a French-speaking man from Cameroon told me, one sweltering afternoon in Tapachula on the breezeless balcony of a hotel frequented by irregular migrants, “n’existe pas sur le map.” This route doesn’t exist on the map.”

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Read Lauren’s much longer complete article at the above link.  It’s one of the most incisive treatments of the worldwide migration phenomenon that I have seen recently. I highly recommend it.
Thanks to dedicated “Courtsider” Roxanne Lea Fantl of Richmond, VA for sending this item my way!
Shortly after I arrived at the Arlington Immigration Court, one of my wonderful colleagues told me “Paul, desperate people do desperate things. Don’t take it personally, and don’t blame them. We just do our jobs, as best we can under the circumstances.” Good advice, to be sure!
We can diminish ourselves as a nation, but that won’t stop human migration!
PWS
03-02-18

Related posts:

  1. INCONVENIENT TRUTH: HALEY SWEETLAND EDWARDS @ TIME TELLS WHAT TRUMP, MILLER, COTTON, SESSIONS, & THEIR WHITE NATIONALIST GANG DON’T WANT YOU TO KNOW: Human Migration Is A Powerful Force As Old As Human History; It’s A Plus For Receiving Nations; It Won’t Be Stopped By Walls, Jails, Racist Laws, Or Any Other Restrictionist Nonsense; But, It Can Be Intelligently Controlled, Channeled, Harnessed, & Used For The Benefit Of The U.S. & The Good Of The Migrants! — “But to maximize that future good, governments must act rationally to establish humane policies and adequately fund an immigration system equipped to handle an influx of newcomers.”
  2. VICTORY DANCE! — ICE’S HOMAN SAYS CLIMATE OF FEAR HAS STEMMED BORDER CROSSINGS & PROVES UNRESTRAINED, ARBITRARY IMMIGRATION ENFORCEMENT WORKS! — “There’s no population that’s off the table,” he said. “If you’re in the country illegally, we’re looking for you and we’re looking to apprehend you.” — America Won’t Be Truly Safe Until The Last Cook, Gardner, Construction Worker, Nanny, Janitor, Tree Cutter, Mechanic, Handyman, Carpenter, Home Health Aide, Computer Programmer, Healthcare Worker, Lettuce Picker, Cow Milker, Landscaper, Lawnmower, Bricklayer, Roofer, Window Washer, Waiter, Sandwich Artist, Teacher, Minister, Coach, Student, Parent, Clerk, Fisherman, Farmer, Maid, Chicken Plucker, Meat Processor, Etc., Without Docs Is Removed And US Citizens Take Over All These Jobs!
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

AMERICA THE UGLY: WHY ARE WE ALLOWING OUR GOVERNMENT TO ABUSE THE HUMAN RIGHTS OF FAMILIES & CHILDREN? — “This policy is tantamount to state-sponsored traumatization.”

https://www.nytimes.com/2018/02/28/opinion/immigrant-children-deportation-parents.html

 

DORA GALACATOS, ALAN SHAPIRO and BRETT STARK in the NY Times:

“The Department of Homeland Security may soon formalize the abhorrent practice of detaining the children of asylum-seekers separately from their parents. Immigrant families apprehended at the southwest border already endure a deeply flawed system in which they can be detained indefinitely. In this immigration system, detainees too often lack adequate access to counsel. But to unnecessarily tear apart families who cross the border to start a better life is immoral.

Sadly, such separations are already happening. The Florence Project in Arizona documented 155 such cases by October and other immigrant advocacy organizations report that children are being taken away from their parents. If the secretary orders this practice to be made standard procedure, thousands of families could face unnecessary separation.

The Trump administration’s goal is to strong-arm families into accepting deportation to get their children back. Kirstjen Nielsen, the secretary of homeland security, admitted this when she told the Senate on Jan. 16 that separating families may “discourage parents” from seeking refuge in America.

But the increasing informal use of family separation has not proved to be a deterrent. Last year, the number of family apprehensions at the southwestern border skyrocketed from 1,118 families in April to 8,120 in December.

Parents will continue to flee violence to protect their children and themselves. It is reprehensible to punish them for that basic human impulse. It is also despicable that the government would use children as bargaining chips. This policy is tantamount to state-sponsored traumatization.

Those of us who have seen the sites where families are detained and work directly with children and families who have gone through the system know what’s at stake.

The children we work with call the Border Patrol processing stations for migrants stopped at the border “iceboxes” (hieleras) and “dog kennels” (perreras). “I was wet from crossing the river and it was so cold I thought I would die,” one child said.

Another told us: “The lights were kept on day and night. I became disoriented and didn’t know how long I had been there.” A third said: “I was separated from my older sister. She is the closest person in my life. I couldn’t stop crying until I saw her again a few days later.”

In our work we have heard countless stories about detention. But the shock of bearing witness to them is hard to put into words. In McAllen, Tex., you enter a nondescript warehouse, the color of the dry barren landscape that surrounds it. It could be storage for just about anything, but is in actuality a cavernous, cold space holding hundreds upon hundreds of mostly women and children.

Chain-link fencing divides the harshly illuminated space into pens, one for boys, a second for girls and a third for their mothers and infant siblings. The pens are unusually quiet except for the crinkling of silver Mylar blankets. This is where family separation begins, as does the nightmare for parents and children.

The parents whose sons and daughters have been taken from them are given two options: either agree to return home with their children — or endure having those children sent on to shelters run by the Health and Human Services Department while they themselves languish in detention centers scattered around the country.

This country’s medical and mental health organizations have rightly recognized the trauma of this practice. The American Academy of Pediatrics has condemned immigrant family separation, and family detention overall, as “harsh and counterproductive.” The American Medical Association has denounced family separation as causing “unnecessary distress, depression and anxiety.”

Studies overwhelmingly demonstrate the irreparable harm to children caused by separation from their parents. A parent or caregiver’s role is to mitigate stress. Family separation robs children of that buffer and can create toxic stress, which can damage brain development and lead to chronic conditions like depression, post-traumatic stress disorder and heart disease. For that reason, more than 200 child welfare, juvenile justice and child development organizations signed a letterdemanding that the Trump administration abandon this ill-conceived policy.

Family separation is also unjustifiable legally, as “family unity” is central to our immigration laws and our longstanding policy of reuniting citizens and permanent residents with their relatives.

More fundamentally, family separation is anathema to basic decency and human rights. For our government to essentially hold immigrant children as hostages in exchange for the “ransom” of their parents’ deportation is simply despicable.

It is every parent’s nightmare to have a child snatched away. To adopt this as standard procedure to facilitate deportations is inhumane and does nothing to make Americans safer. This country, and Secretary Nielsen, must reject family separation.

Dora Galacatos is the executive director of the Feerick Center for Social Justice at Fordham Law School. Alan Shapiro is a co-founder and the medical director and Brett Stark is a co-founder and the legal director of Terra Firma, which aids unaccompanied immigrant children.”

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This is not what America stands for! Vote the Trump Administration and the (mostly GOP) legislators behind these violations of human rights and common decency out of office!

As I have pointed out before, if treated decently and allowed to pursue their legal claims, many, probably the majority, of those being abused by our Government would be able to establish a legal right to remain!

PWS

03-01-18

 

Related posts:

  1. ANOTHER WASHPOST LEAD EDITORIAL RIPS CRUEL, INHUMANE, ADMINISTRATION POLICIES ON SEPARATING CHILDREN – In Plain Terms, Our Government Is Engaging in Child Abuse!
  2. REPORT FROM FBA, AUSTIN: Read My Speech “JUSTICE BETRAYED: THE INTENTIONAL MISTREATMENT OF CENTRAL AMERICAN ASYLUM APPLICANTS BY THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW”
  3. NATION OF CHILD ABUSERS: WHILE MANY RIGHT WING APOLOGISTS (ALONG WITH ALAN DERSHOWITZ) PAN NAZI COMPARISON, ACTUAL HOLOCAUST CHILD SURVIVOR YOKA VERDONER UNDERSTANDS THE PARALLELS! — Child Abuse Is Child Abuse —Evil Is Evil — Damage Is Irreparable!
  4. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 

ANOTHER AMICUS OPPORTUNITY FOR RETIRED IMMIGRATION JUDGES AND BIA APPELLATE JUDGES – Join My Friend & Colleague Judge Eliza Klein, Pro Bono Counsel Sidley Austin, The Heartland Alliance, & Me In A 10th Circuit Case Involving Access To Counsel In Immigration Detention (There Isn’t Any, For All Practical Purposes)

Judge Klein,

I hope you’re well.  Allow me to introduce you to a team of lawyers from the firm Sidley Austin who are working on an amicus brief on behalf of immigration judges in the 10th Circuit case that I mentioned to you.  As we discussed, the case involves an arriving asylum seeker who was detained in a remote facility with no LOP, and with no realistic access to counsel. And, to complicate matters, at the time of his hearing, there was not meaningful phone access to the jail.  The goal of the brief will be to address, from a judge’s perspective, the challenges of adjudicating such cases where there’s no real option for counsel and also to hopefully address some of the ways in which IJs have had to work around the absence of counsel to develop an adequate record in such cases.

The team from Sidley will get going on drafting, but in the meantime, I think it would be very helpful if you could work with them to reach out to other IJs who you certainly know better than any of us.  We’ve provided Sidley a list of former IJs who have been willing to sign amicus briefs in other contexts, so hopefully that list (and your inside info) will help with the outreach.

Keren Zwick                                                                                                                                                                                                                                                                                                                                  (Pronouns: she/her/ella)

Associate Director of Litigation

National Immigrant Justice Center

A HEARTLAND ALLIANCE Program

208 S. LaSalle Street, Suite 1300, Chicago, IL 60604
T: 312.660.1364 | F: 312.660.1505 | E: kzwick@heartlandalliance.org

www.immigrantjustice.org | Facebook | Twitter

 

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If you can help out, please respond directly to the attorney drafting the brief Jean-Claude Andre of Sidley Austin: JCAndre@sidley.com

I recently had the honor and pleasure of working with the Sidley Austin litigators on an Amicus Brief in the 6th Circuit case Hamama v. Homan (Due Process for Chaldean Christians). It was great!

PWS

03-01-18

 

 

Related posts:

  1. DUE PROCESS DENIED! — NIJC REPORT FINDS THAT DHS DETENTION IN OBSCURE LOCATIONS DEPRIVES MIGRANTS OF MEANINGFUL ACCESS TO COUNSEL! — This Is What Happens When We Enable The “American Gulag!”
  2. JULIA PRESTON: CHAOS IN COURT! – TRUMP ADMINISTRATION’S MAL-ADMINISTRATION OF IMMIGRATION COURTS RUINS LIVES, FRUSTRATES JUDGES!
  3. TAL @ CNN TELLS ALL ON HOW SESSIONS IS USING HIS AUTHORITY OVER THE SCREWED UP U.S. IMMIGRATION COURTS TO ATTACK DUE PROCESS & TARGET VULNERABLE ASYLUM SEEKERS — One Of My Quotes: “I think due process is under huge attack in the immigration courts. Every once in a while Sessions says something about due process, but his actions say something quite different.”
  4. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 

HERE’S MY AMICUS BRIEF IN PEREIRA V. SESSIONS IN THE U.S. SUPREME COURT – Issue: Proper Notice & The “Stop-Time Rule”

PEREIRAVSESSIIONS,SCT,AMICUS17-459 tsac Former BIA Chairman & Immigration Judge Schmidt

Many thanks to the amazing Eric F. Citron, Partner, and his team at GOLDSTEIN & RUSSELL P.C., Bethesda, MD for making this possible! More members of the New Due Process Army!

Eric is a former Supreme Court Law Clerk. No way I could have done this without him and his great colleagues! It’s  very gratifying that the “best and the brightest” in the legal community, like Eric, are coming to the aid of WESCLEY FONSECA PEREIRA and others like him. Too often in the past, part of the Government’s litigation strategy has been to create a “mismatch” between the Solicitor General’s Office and the attorneys representing migrants, who often aren’t Supreme Court “regulars.”  Brilliant, committed lawyers like Eric are “leveling the playing field.” Thanks again, Eric, for all that you and your “Terrific Team” do! And, many, many thanks to GOLDSTEIN & RUSSELL P.C. for making it possible for Eric to participate in this critically important case!

 

PWS

03-01-18

Related posts:

  1. BLOCKBUSTER: ANOTHER SUPREME STOMP! — DOJ /DHS SCOFFLAWS LOSE AGAIN BY 8-1 MARGIN IN PEREIRA V. SESSIONS – Invalidates Hundreds Of Thousands Of “Haste Makes Waste” Notices To Appear – Real Costs To American Justice Of A “Captive” BIA That Functions Like DHS Toady Rather Than Independent Court Becoming Painfully Apparent – Risks In Having Biggest Federal “Court” System Run By Biased & Incompetent Attorney General Now Coming Into Focus!
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JUSTICE BREYER IS RIGHTFULLY CONCERNED ABOUT THE “DREDSCOTTIFICATION’” OF IMMIGRANTS AS SHOWN IN THE LEGALLY & MORALLY BANKRUPT VIEWS OF THE MAJORITY IN JENNINGS V. RODRIGUEZ!

https://slate.com/news-and-politics/2018/03/justice-alito-just-signaled-the-supreme-courts-conservatives-might-not-consider-immigrants-to-be-people.html

Mark Joseph Stern reports for Slate:

“Tuesday’s Supreme Court decision in Jennings v. Rodriguez was widely viewed as an anticlimax. The case involves a group of immigrants being held in custody without any hope of bail. They argue that their indefinite detention violates due process, but the majority declined to resolve the constitutional question, sending the case back down to the lower court. In a sense, the plaintiffs are back where they started.

Justice Stephen Breyer, however, saw something far more chilling in the majority’s opinion. Taking the rare and dramatic step of reading his dissent from the bench, Breyer cautioned that the court’s conservative majority may be willing to strip immigrants of personhood in a manner that harkens back to Dred Scott. The justice used his impassioned dissent to sound an alarm. We ignore him at our own peril.

Jennings involves three groups of noncitizen plaintiffs: asylum-seekers, immigrants who have committed crimes but finished serving their sentences, and immigrants who believe they’re entitled to enter the country for reasons unrelated to persecution. A high percentage of these types of immigrants ultimately win the right to enter the U.S. But federal law authorizes the government to detain them while it adjudicates their claims in case it secures the authority to deport them instead.

The detention of these immigrants—often in brutal facilities that impose inhuman punishments—has, in practice, dragged on for months, even years. There is no clear recourse for detained immigrants who remain locked up without a hearing. In 2001’s Zadvydas v. Davis, the court found that a similar scheme applied to “deportable aliens” would almost certainly violate the Fifth Amendment’s Due Process Clause. To avoid this constitutional problem, the court construed the law as limiting detention to six months.

But in Jennings, the court’s five-member conservative majority interpreted another federal law to permit indefinite detention of thousands of aliens, with no apparent concern for the constitutional problems that reading creates. Justice Samuel Alito, writing for the majority, revealed from the outset of his opinion that he dislikes Zadvydas, dismissing it as a “notably generous” holding that avoided the constitutional issue in order to secure due process for immigrants. Unlike the Zadvydas court, Alito has no interest in protecting the constitutional rights of noncitizens. Instead, he read the current statute as stingily as possible, concluding that it did, indeed, allow the government to detain all three groups of immigrants indefinitely.

Oddly, Alito then chose not to address whether this interpretation of the statute rendered it unconstitutional. Instead, he sent the case back down to the lower courts to re-examine the due process question. But in the process, the justice telegraphed where he stands on the issue by attempting to sabotage the plaintiffs on their way out the door. In the lower courts, this case proceeded as a class action, allowing the plaintiffs to fight for the rights of every other similarly situated immigrant. The government didn’t ask the Supreme Court to review whether it was proper for it to litigate the plaintiffs’ claims as a class. But Alito did it anyway, strongly suggesting that the lower court should dissolve the class and force every plaintiff to litigate his case by himself.

Alito’s antics infuriated Breyer, who dissented along with Justices Ruth Bader Ginsburg and Sonia Sotomayor. (Justice Elena Kagan recused, presumably because she worked on the case as solicitor general.) Using Zadvydas as a jumping-off point, he interpreted the statute to require a bail hearing for immigrants after six months’ confinement—provided they pose no risk of flight or danger to the community. “The Due Process Clause foresees eligibility for bail as part of ‘due process,’ ” Breyer explained. By its own terms, that clause applies to every “person” in the country. Thus, the Constitution only permits the government to detain these immigrants without bail if they are not considered “persons” within the United States.

That is essentially what the government argued, asserting that immigrants detained at the border have no rights. This theory justifiably fills Breyer with righteous disgust. “We cannot here engage in this legal fiction,” he wrote. “No one can claim, nor since the time of slavery has anyone to my knowledge successfully claimed, that persons held within the United States are totally without constitutional protection.” Breyer continued:

Whatever the fiction, would the Constitution leave the government free to starve, beat, or lash those held within our boundaries? If not, then, whatever the fiction, how can the Constitution authorize the government to imprison arbitrarily those who, whatever we might pretend, are in reality right here in the United States? The answer is that the Constitution does not authorize arbitrary detention. And the reason that is so is simple: Freedom from arbitrary detention is as ancient and important a right as any found within the Constitution’s boundaries.

Unfortunately, Breyer is not quite right that “no one” could claim, at least since “the time of slavery,” that noncitizens held in the U.S. “are totally without constitutional protection.” Just last October, Judge Karen L. Henderson of the U.S. Court of Appeals for the District of Columbia Circuit argued exactly that. In a stunning dissent, Henderson wrote that a pregnant, undocumented minor held in custody was “not entitled to the due process protections of the Fifth Amendment” because “[she] has never entered the United States as a matter of law … ” (The Due Process Clause protects women’s rights to abortion access.) In fact, the minor had entered the country and lived here for several months. But because she entered illegally, Henderson asserted that she had no constitutional rights. That’s precisely the “legal fiction” that Breyer rejected. It’s shockingly similar to the theory used to justify slavery and Dred Scott.

Do the Supreme Court’s conservatives agree with Henderson that undocumented immigrants detained in the U.S. have no constitutional protections? Breyer seems to fear that they do. In a striking peroration, Breyer reminded his colleagues that “at heart,” the issues before them “are simple”:

We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have “certain unalienable Rights,” and that among them is the right to “Liberty.” We need merely remember that the Constitution’s Due Process Clause protects each person’s liberty from arbitrary deprivation. And we need just keep in mind the fact that … liberty has included the right of a confined person to seek release on bail. It is neither technical nor unusually difficult to read the words of these statutes as consistent with this basic right.

We should all be concerned that Breyer found it necessary to explain these first principles to the court. So many rights flow from the Due Process Clause’s liberty component: not just the right to be free from arbitrary detention and degrading treatment, but also the right to bodily integrity and to equal dignity. Should the court rule that undocumented immigrants lack these basic liberties, what’s to stop the government from torturing them, executing them, or keeping them imprisoned forever?

If that sounds dramatic, consider Breyer’s somber warning about possible starvation, beatings, and lashings. The justice plainly recognizes that, with Jennings, the court may have already taken a step down this dark and dangerous path.”

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

As an appellate judge, I remember being infuriated by the callous attitude of some of my “Ivory Tower” colleagues and some trial judges who tended to minimize and sometimes trivialize human pain and suffering to arrive at nonsensical legalistic definitions of what constituted “persecution” or “torture.”

They simply didn’t want to recognize truth, because it would have resulted in more people being granted relief. In frustration, I occasionally privately suggested to staff that perhaps we needed an “interactive session” at the Annual Immigration Judges Conference (back in the days when we used to have such things) where those jurists who were immune to others’ pain and suffering would be locked in a room and subjected to some of the same treatment themselves. I imagine they would have been less stoic if it were happening to them rather than to someone else.

I doubt that any of the five Justices who joined the tone-deaf majority in Jennings would last more than a few days, not to mention years, in the kind of intentionally cruel, substandard, and deplorable conditions in which individuals, the majority of whom have valid claims to remain here under U.S. and international law, are detained in the “New American Gulag.” So, why is there no obvious Constitutional Due Process problem with subjecting individuals to so-called “civil” immigration detention, without recourse, under conditions that no human being, judge or not, should be forced to endure?

No, “Tone-Deaf Five,” folks fighting for their lives in immigration detention, many of whom lack basic legal representation that others take for granted,  don’t have time to bring so-called “Bivens actions” (which the Court has pretty much judicially eliminated anyway) for “so-called “Constitutional torts!” Come on man, get serious!

Privileged jurists like Alito and Thomas speak in undecipherable legal trivialities and “pretzel themselves up” to help out corporate entities and other members of the privileged classes, yet have no time for clear violations of the Constitutional rights of the most vulnerable among us.

A much wiser, more humble, and less arrogant “judge” than Justice Alito and friends once said “Most certainly I tell you, inasmuch as you did it to one of the least of these my brothers, you did it to me.” When will the arrogant ever learn, when will they ever learn? Maybe not until it happens to them! Harm to the most vulnerable among us is harm to all of us! We should all be concerned that Justice Alito and his fellow judicial “corporate elitists” have “dissed” the Due Process Clause of our  Constitution which protects everyone in America, not just corporations, gun owners, and over-privileged, under-humanized jurists! 

Based upon recent statistics, approximately one person per month will die in the “DHS New American Gulag” while this case is “on remand” to the lower courts. How would Alito, Roberts, Thomas, Kennedy, and Gorsuch feel if it were their loved ones who perished, rather than some faceless (to them) “alien” (who also happens to be a human being)? Dehumanizing the least among us, like the Dred Scott decision did, de-humanizes all of us! For that, there is no defense at the bar of history and humanity.

PWS

03-01-18

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  2. CONTINUING JUDICIAL EDUCATION FOR ARTICLE III JUDGES: “Kids In Cages” Ought To Be Displayed Outside Every Federal Courthouse & The Supremes So That “Robed Enablers” Can See The Results Of Their Abdication Of Constitutional Duties!
  3. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
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LEGAL AID JUSTICE CENTER OF VIRGINIA HUGE WIN – USD Judge Brinkema Certifies Class & Orders Bond Hearings For Individuals In “Withholding Only Proceedings” — Rogelio Amilcar Cabrera Diaz v. Hott — Get Links To All The Essential Court Docs Here!

https://www.justice4all.org/2018/02/26/case-establishes-right-to-bond-hearings/

Case Establishes Right to Bond Hearings

Posted by Tim Wallace

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FOR IMMEDIATE RELEASE

Legal Aid Justice Center has won an important first-in-the-nation class action case in federal court in Alexandria, establishing the right to bond hearings for a class of detained immigrants whom the government is holding in long-term no-bond detention.

When immigrants are deported to countries where human rights violations are rampant, they often find themselves subject to persecution, torture, or even death threats.  And since the U.S. government almost never gives a visa to someone who has already been deported, these individuals may find themselves with no option other than to try to return to the United States and cross the border illegally to seek a form of legal protection from persecution known as “withholding of removal.”

Previously, ICE and the immigration courts refused to grant bond to these individuals, holding them in prison-like conditions in immigration detention centers for months if not years while they fought out their cases.  Legal Aid Justice Center filed a lawsuit last year on behalf of five immigrants held in this prolonged no-bond detention, and won release for two of them, but the government refused to apply the decision more broadly to other similarly situated immigrants held in detention.

We then filed a first-in-the-nation class action, seeking access to bond hearings for all immigrants detained in Virginia who fall into this category.  On February 26, 2018, federal district judge Leonie M. Brinkema granted our motions in full, giving our clients and the class members all of the relief we asked for.  We understand that there are about 50 immigrants currently detained at the Farmville detention center who meet this description, with more being arrested every week.  Now, they will have the chance to pay a bond and leave detention, reunite with their families, and resume normal lives while they fight their cases for protection.

Special thanks to our pro bono co-counsel at Mayer Brown LLP, Murray Osorio LLP, Law Office of James Reyes, and Blessinger Legal PLLC – we couldn’t possibly do it without you!

The judge’s opinion can be found here: Memorandum Opinion (PDF)

The judge’s order can be found here:  Order (PDF)

The opinion applies to all immigrants who are in pending withholding-only proceedings, and “as of December 7, 2017 or at any time thereafter are detained within the Commonwealth of Virginia under the authority of [ICE].”  The government has been ordered to notify all class members by March 13, 2018, and to provide them with a bond hearing (or a Joseph hearing, if appropriate) by March 28, 2018.

We will be monitoring compliance with this opinion, and want to hear from Virginia attorneys who represent a class member.  If you represent a class member, or if you have questions as to whether your client might be a class member, please e-mail LAJC attorney Rachel McFarland at rmcfarland@justice4all.org to let us know. 

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

“Super Congrats” to Simon Y. Sandoval-Moshenberg—Director, Immigrant Advocacy Program & his team of Firms and pro bono attorneys for making this happy.

I am particularly delighted that one of my “star” former Georgetown Law RLP students, Rachel McFarland, has been involved in this case. Rachel is a “charter member” of the “New Due Process Army!”

PWS

02-28-18

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  1. DETENTION/BOND: THE “NEW DUE PROCESS ARMY” WINS A BIG ONE IN THE EDVA – Judge Brinkema Orders Individualized Bond Hearings For Four Individuals With “Reinstated” Removal Orders Now In “Withholding Only Proceedings!” — Romero v. Evans, ___ F. Supp. 3d ___, 2017 WL 5560659 (EDVA 11-17-17) (published)
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TAL @ CNN: ADMINISTRATION “SPLITS A PAIR” OF USDC RULINGS IN CAL. – Blown Out Again On DACA, But A Victory On “The Wall!”

http://www.cnn.com/2018/02/27/politics/daca-revocation-ruling/index.html

 

Court hands DACA recipients another victory

By: Catherine E. Shoichet and Tal Kopan, CNN

Young immigrants brought illegally to the United States as children have won another legal victory.

A federal judge in California ruled Monday that the government can’t revoke DACA recipients’ work permits or other protections without giving them notice and a chance to defend themselves.

The ruling in a California district court marks the third time a lower court has ruled against the administration’s handling of the Deferred Action for Childhood Arrivals program. But this case, unlike the others, is not about President Donald Trump’s September decision to end the program.

US District Judge Philip Gutierrez’s preliminary injunction Monday addressed another aspect: government decisions to revoke protections from individual DACA recipients.

The Obama-era DACA program protected young immigrants brought illegally to the United States from deportation if they met certain criteria, paid fees, passed background checks and didn’t commit serious crimes.

The Trump administration announced it was ending the program last year, arguing that it was unconstitutional. A series of recent lower court rulings have thwarted that effort, requiring the government to continue renewing permits under the program while legal challenges make their way through the courts. On Monday, the US Supreme Court said it was staying out of the dispute for now.

Meanwhile, activists across the country have increasingly criticized government decisions to end DACA protections in individual cases.

Monday’s ruling came in a class action lawsuit filed by the American Civil Liberties Union. The suit  argues that the government had revoked protections from DACA recipients who hadn’t been convicted of serious crimes without giving them any opportunity to defend themselves.

An example: Officials revoked the work permit of one of the plaintiffs, Jesus Arreola, after he was arrested on suspicion of immigrant smuggling. An immigration judge later found that allegation wasn’t credible, according to the ACLU’s complaint. Arreola says he was an Uber and Lyft driver who had picked up passengers for a friend without any knowledge of their immigration status.

Attorneys representing the government argue that the plaintiffs had “misused the trust given to them with the administrative grace of DACA.”

The judge said the Department of Homeland Security must restore protections to the group of DACA recipients who had them revoked “without notice, a reasoned explanation, or any opportunity to respond.”

The ruling also temporarily blocks officials from revoking DACA protections from others without following a procedure “which includes, at a minimum, notice, a reasoned explanation, and an opportunity to be heard prior to termination.”

The Justice Department did not immediately respond to a request for comment about Monday’s ruling.

According to DHS, officials had revoked or terminated 2,139 individuals’ DACA protections over the lifetime of the program as of August 2017.

The ruling came the same day the Supreme Court said it would stay out of the dispute over the termination of DACA for now, leaving renewals under the program in place for at least months.

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

http://www.cnn.com/2018/02/27/politics/border-wall-ruling-curiel/index.html

Judge Curiel, once attacked by Trump, rules border wall can proceed

By Tal Kopan, CNN

(CNN)US District Judge Gonzalo Curiel has cleared one potential obstacle to President Donald Trump’s long-promised border wall, ruling Tuesday that the administration has the authority to waive a host of environmental laws and other regulations to begin construction.

Curiel’s 100-page order does not mean construction of the wall will begin immediately. Congress has yet to authorize or provide funding for any new wall to begin the project. Thus far, the Department of Homeland Security has built several prototypes in San Diego — which was the focus of the lawsuit Curiel rejected.
Still, the ruling is a win for the administration as it seeks to get money to build its wall, a centerpiece of Trump’s campaign.
Curiel’s ruling left little doubt that the DHS has broad authority to issue waivers — authorized in a cluster of laws passed by Congress in the mid 1990s to 2000s — to expedite the construction of border barriers and infrastructure. His lengthy ruling went point-by-point through the challenges to DHS’ authority brought by environmental groups and the state of California and rejected all of them.
Judge criticized by Trump will hear case on border wall
Judge criticized by Trump will hear case on border wall
Curiel was famously the target of Trump’s ire when he presided over a lawsuit against Trump University, which was ultimately settled after Trump won the White House.
Trump drew fierce criticism in June 2016 when he said that Curiel, who was born in Indiana, was biased against him due to his Mexican heritage.
In his ruling Tuesday, Curiel noted that the border wall is a highly contentious issue under this administration but said he did not factor that into his decision.
“The court is aware that the subject of these lawsuits, border barriers, is currently the subject of heated political debate in and between the United States and the Republic of Mexico as to the need, efficacy and the source of funding for such barriers,” Curiel wrote. “In its review of this case, the Court cannot and does not consider whether underlying decisions to construct the border barriers are politically wise or prudent.”
Not just Trump's idea: A short history on famous walls and the environment
Not just Trump’s idea: A short history on famous walls and the environment
The groups had challenged DHS’ move to expedite construction of the prototypes and replacement fencing in San Diego on a number of grounds. The collection of lawsuits from the environmental advocacy organizations and the state of California argued that the Trump administration’s waiver wasn’t allowed by the law that created the overarching authority and that the authority itself violated the Constitution.
Curiel rejected each argument, saying the law and the nature of the border clearly give the DHS broad authority to build border barriers.
“Both Congress and the Executive share responsibilities in protecting the country from terrorists and contraband illegally entering at the borders. Border barriers, roads, and detection equipment help provide a measure of deterrence against illegal entries,” Curiel wrote. “With section 102, Congress delegated to its executive counterpart, the responsibility to construct border barriers as needed in areas of high illegal entry to detect and deter illegal entries. In an increasingly complex and changing world, this delegation avoids the need for Congress to pass a new law to authorize the construction of every border project.”
In addition to pro-immigration and civil liberties groups, environmental groups have opposed the construction of Trump’s border wall on the grounds that it would disturb sensitive wildlife and ecosystems.
One section of Trump’s proposed wall in Texas would run through a wildlife preserve.

Where border rhetoric meets reality

The Justice Department, meanwhile, hailed the ruling.
“Border security is paramount to stemming the flow of illegal immigration that contributes to rising violent crime and to the drug crisis, and undermines national security,” said spokesman Devin O’Malley. “We are pleased DHS can continue this important work vital to our nation’s interests.”
One of the groups challenging the wall said it intended to appeal the decision.
“We intend to appeal this disappointing ruling, which would allow Trump to shrug off crucial environmental laws that protect people and wildlife,” said Brian Segee, a senior attorney at the Center for Biological Diversity. “The Trump administration has completely overreached its authority in its rush to build this destructive, senseless wall.”
California Attorney General Xavier Becerra said in a statement that he was considering his options.
“We remain unwavering in our belief that the Trump Administration is ignoring laws it doesn’t like in order to resuscitate a campaign talking point of building a wall on our southern border,” Becerra said. “We will evaluate all of our options and are prepared to do what is necessary to protect our people, our values, and our economy from federal overreach. A medieval wall along the US-Mexico border simply does not belong in the 21st century.”
The waiver authority to build barriers along the border has been used a number of times dating back to the George W. Bush administration, and it has been upheld by the courts every time it has been challenged.
Trump is scheduled to visit the border wall prototypes next month.

CNN’s Sara Sidner and Devan Cole contributed to this report.

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

I guess even Gonzo can’t lose ’em all.  But, he certainly hasn’t taken his last beating on his counterproductive, ill-conceived, and wasteful “War on Dreamers.”

PWS

02-28-18

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THE GIBSON REPORT — 02-26-18

THE GIBSON REPORT

HEADLINES:

TOP UPDATES

 

Supreme Court Denies Certiorari in DACA Rescission Case

SCOTUSblog: SCOTUS denied the administration’s request for review of a decision blocking termination of Deferred Action for Childhood Arrivals policy, without prejudice (meaning the case can come back to the justices).

 

State Department report will trim language on women’s rights, discrimination

Politico: The human rights bureau also has been directed to cut back a broader section in the various country reports generally called “discrimination, societal abuses and trafficking in persons.” Along with women’s reproductive rights, that section touches on topics such as anti-Semitism or pressures on the gay and lesbian community. It also includes discrimination that’s not necessarily government-sponsored.

 

US Deportations Targeting More People With No Crime Records

AP: U.S. Immigration and Customs Enforcement said 65 percent of arrests from October to December were criminals, compared to 82 percent during the final full three months of the Obama administration. Looked at another way, arrests of criminals jumped 14 percent to 25,626 from 22,484, but arrests of non-criminals nearly tripled to 13,548 from 4,918.

 

Under Trump, Border Patrol Steps Up Searches Far From the Border

NYT: Border Patrol officers are working without permission on private property and setting up checkpoints up to 100 miles away from the border under a little-known federal law that is being used more widely in the Trump administration’s aggressive crackdown on illegal immigration.

 

Big Brother is Following Immigrants

ImmProf: In January, ICE signed a contract with Vigilant, and the Electronic Frontier Foundation reported that the agency can use the database to drill down into the data for a single license plate to find where the person has lived, worked, gone to church, ran errands, and took their kids to school for the past five years. ICE can also add a license plate to a hotlist which then sends immediate sightings in real time directly to ICE.

 

U.S. Citizenship and Immigration Services Will Remove “Nation of Immigrants” From Mission Statement

The Intercept: Cissna wrote. “In particular, referring to applicants and petitioners for immigration benefits, and the beneficiaries of such applications and petitions, as ‘customers’ promotes an institutional culture that emphasizes the ultimate satisfaction of applicants and petitioners, rather than the correct adjudication of such applications and petitions according to the law.” Critically, Cissna added, “Use of the term leads to the erroneous belief that applicants and petitioners, rather than the American people, are whom we ultimately serve.”

 

Warning of ICE action, Oakland mayor takes Trump resistance to new level

The Hill: Schaaf cited information from “multiple credible sources” that Immigrations and Customs Enforcement (ICE) planned to conduct a sweep in California’s Bay Area, possibly as soon as the next day…The statement about the potential raids included information on the obligations of school officials and business owners to protect immigrants.

 

Trump floats ICE pullout in California

Politico: Trump’s comments appeared to be empty bluster. It’s extremely unlikely that his administration, which views undocumented immigration as a grave threat, would stop policing immigration in a border state — even one that gave Trump only 33 percent of the popular vote in 2016.

 

Visits by federal immigration authorities are spooking businesses and workers

LA Times: Are ICE’s audits new? No. ICE visits to employers hit a peak of 3,127 under President Obama in 2013, before his administration shifted its focus to deporting people convicted of serious crimes. In the 2017 fiscal year, ICE said it conducted 1,360 audits. But under Trump, who railed against both legal and illegal immigration during both the 2016 campaign and his presidency, ICE agents have become more willing to arrest anyone in the country illegally whom they encounter during enforcement actions, even if those people have no criminal convictions.

 

After testy call with Trump over border wall, Mexican president shelves plan to visit White House

WaPo: Peña Nieto was eyeing an official trip to Washington this month or in March, but both countries agreed to call off the plan after Trump would not agree to publicly affirm Mexico’s position that it would not fund construction of a border wall that the Mexican people widely consider offensive, said the officials, who spoke on the condition of anonymity to discuss a confidential conversation.

 

The US Undocumented Population Fell Sharply During the Obama Era: Estimates for 2016

CMS: [T]he steady decline in the [undocumented] population since 2010 refutes the recurrent argument that consideration by Congress of an earned legalization program or the DREAM Act, or even the establishment of the Deferred Action for Childhood Arrivals (DACA) program — all of which occurred during this time-frame — invariably leads to increased undocumented immigration. In addition, as previously documented by CMS, the United States has turned a significant corner in immigration enforcement. The remaining US undocumented population has extremely long tenure, strong equitable ties, and firm roots in the United States.

 

LITIGATION/CASELAW/RULES/MEMOS

 

Supreme Court Denies Certiorari in DACA Rescission Case

The Supreme Court denied certiorari, and noted that “[i]t is assumed that the Court of Appeals will proceed expeditiously to decide this case.” (DHS v. Regents of the University of California, 2/26/18). AILA Doc. No. 17091102.

 

Class Action Lawsuit Filed to Allow Certain Temporary Protected Status Recipients to Adjust Their Status

The American Immigration Council filed a class action lawsuit in a New York federal district court, challenging the unlawful practice of depriving certain TPS holders with close family relationships/employment in the U.S. from becoming lawful permanent residents. (Moreno v. Nielson, 2/22/18). AILA Doc. No. 18022337

 

Class Action Lawsuit Filed Challenging Prolonged Detention of Immigrant Children in New York

The New York Civil Liberties Union filed a class action lawsuit in the District Court of the Southern District of New York against the Office of Refugee Resettlement challenging the government’s prolonged detention of immigrant children across New York. (L.V.M v. Lloyd, 2/16/18). AILA Doc. No. 18022262

 

Brief Argues Attorney General Lacks Impartiality Necessary to Decide Immigration Cases

AIC: In a rare move, Attorney General Jeff Sessions recently referred an immigration case to himself, utilizing a regulation that gives attorney generals the power to reconsider cases previously decided by the Board of Immigration Appeals. But Sessions’ hostile anti-immigrant public statements, made over the course of his entire career, make him unfit to rule in an immigration case.

 

DOJ Files Complaint to Denaturalize Diversity Visa Recipient Who Obtained Naturalized Citizenship

DOJ filed a complaint in the Eastern District of Michigan to revoke the naturalization U.S. citizenship of Humayun Kabir Rahman after he failed to disclose two prior orders of removal and became a U.S. citizen in 2004. The case was referred by USCIS and identified as a part of Operation Janus. AILA Doc. No. 18022032

 

BIA Finds IJ Properly Considered Applicant’s Border Interview in Making Credibility Determination

The BIA dismissed the appeal, stating that when considering a border or airport interview in making a credibility determination, an IJ should assess the accuracy and reliability of the interview based on the totality of the circumstances. Matter of J-C-H-F-, 27 I&N Dec. 211 (BIA 2018). AILA Doc. No. 18022037

 

BIA Holds California Theft Statute Not a CIMT

Unpublished BIA decision holds that theft under Cal. Veh. Code 10851(a) is not a CIMT because it criminalizes joyriding and is not divisible. Special thanks to IRAC. (Matter of Arellano Aguilar, 4/28/17) AILA Doc. No. 18022035

 

BIA Finds Domestic Assault Not a CIMT

Unpublished BIA decision holds that fifth degree domestic assault under Minn. Stat. 609.2242, subd.1(2) is not a CIMT because neither physical contact nor infliction of injury is required. Special thanks to IRAC. (Matter of Omari, 4/28/17)AILA Doc. No. 18022036

 

BIA Holds Unauthorized Use of Personal Identifying Document Not a CIMT

Unpublished BIA decision holds that unauthorized use of personal identifying information of another under Cal. Penal Code 530.5(a)(5) is not a CIMT. Special thanks to IRAC. (Matter of Pangilinan, 4/26/17). AILA Doc. No. 18022364

 

BIA Finds Misprision of Felony Is a CIMT

The BIA dismissed the appeal, finding that misprision of felony in violation of 18 U.S.C. § 4 (2006) is categorically a crime involving moral turpitude (CIMT) and reaffirmed the holding in Matter of Robles. Matter of Mendez, 27 I&N Dec. 219 (BIA 2018). AILA Doc. No. 18022339

 

BIA Finds Possession of Motor Vehicle Part Without ID Number Is Not a CIMT

Unpublished BIA decision holds that possession of a motor vehicle part without an identification number under Utah Code 4-1a-1313 is not a CIMT because it does not require the part to be stolen or used unlawfully. Special thanks to IRAC. (Matter of Romero-Ramirez, 4/28/17). AILA Doc. No. 18022206

 

BIA Finds Sale or Transport of Controlled Substance Not an Aggravated Felony

Unpublished BIA decision holds sale or transport of controlled substance under Cal. Health & Safety Code 11352(a) not an aggravated felony because it includes mere solicitation, offer to sell, and importation from another state. Special thanks to IRAC. (Matter of Gallo, 4/28/17). AILA Doc. No. 18022202

 

CA1 Finds BIA Did Not Abuse Its Discretion in “Particularly Serious Crime” Analysis

The court denied the petitions for review, finding that the BIA did not abuse its discretion in concluding that the petitioner’s aggravated identity theft conviction was a “particularly serious crime” rendering her ineligible for withholding. (Valerio-Ramirez v. Sessions, 2/15/18). AILA Doc. No. 18022210

 

CA1 Remands Case to the BIA to Determine Whether Massachusetts Arson Is a CIMT

The court found that the reasoning the BIA used to conclude that Massachusetts arson is categorically a crime involving moral turpitude (CIMT) was inadequate, and remanded the petitioner’s case to the BIA. (Rosa Pena v. Sessions, 2/14/18). AILA Doc. No. 18022209

 

CA4 Holds BIA Erred in Finding Petitioner Did Not Meet Nexus Requirement for Asylum and Withholding Claims

The court found that the BIA erred in holding that the petitioner did not meet the “nexus” requirement for his asylum and withholding of removal claims, finding that at least one central reason for his persecution by MS-13 was his membership in his family. (Salgado-Sosa v. Sessions, 2/13/18). AILA Doc. No. 18022232

 

CA5 Denies Petition for Review Where Petitioner Claimed Lack of Notice of Hearing

The court denied the petition for review, holding that the BIA did not abuse its discretion in affirming the IJ’s decision that the petitioner received proper notice of her hearing where delivery of the notice occurred at the address the petitioner provided. (Garcia Nunez v. Sessions, 2/8/18). AILA Doc. No. 18022336

 

CA7 Denies Petition for Review of Denial of CAT Relief for Bisexual Jamaican Citizen

The court concluded that the denial of CAT deferral of removal was supported by substantial evidence, finding that the petitioner, a bisexual Jamaican citizen, did not provide sufficient evidence that he specifically would be targeted for extreme violence. (Bernard v. Sessions, 2/8/18). AILA Doc. No. 18022335

 

CA9 Vacates Denial of Chinese Petitioner’s Asylum Application

Where the petitioner had been persecuted by Chinese authorities after opposing eminent domain, the court vacated the BIA’s denial of his asylum application, finding that the persecution was on account of an imputed political opinion. (Song v. Sessions, 12/18/17, amended 2/15/18). AILA Doc. No. 17122000

 

CA9 Holds That Children of LPRs May Take Advantage of Age Calculation Formula in INA §203(h)(1)

The court held that the word “age” in INA §201(f)(2) refers unambiguously to age as calculated under INA §203(h)(1), and rejected the BIA’s contrary holding in Matter of Zamora-Molina. (Rodriguez Tovar v. Sessions, 2/14/18). AILA Doc. No. 18022344

 

CA9 Says Detention of Noncitizens Subject to Reinstated Removal Orders Is Governed by INA §241(a)

The court held that reinstated removal orders are administratively final, and that the detention of noncitizens subject to reinstated removal orders is governed by INA §241(a). Thus, the petitioner was not entitled to a bond hearing. (Padilla-Ramirez v. Bible, 7/6/17, amended 2/15/18). AILA Doc. No. 17072668

 

CA9 Refuses to Remand Case Where Petitioners Did Not Show Eligibility for Administrative Closure

The court found that the IJ and BIA erred by not reviewing the petitioners’ administrative closure request, but that remand was not required because the petitioners did not show eligibility for administrative closure under the Avetisyan factors. (Gonzalez-Caraveo v. Sessions, 2/14/18). AILA Doc. No. 18022338

 

CA10 Affirms District Court’s Certification of Two Classes of ICE Detainees in Private Contract Detention Facility

The court affirmed the district court’s certification of two classes of ICE detainees housed in a GEO group private contract detention facility in Aurora, Colorado. The detainees’ complaint is based on a forced labor claim and an unjust enrichment claim. (Menocal v. GEO Group, 2/9/18). AILA Doc. No. 18022330

 

CA11 Holds That Petitioner’s Florida Drug Trafficking Conviction Was Categorically Not an Aggravated Felony

The court held that Florida Statutes §893.135(1)(c)1. (2007), which criminalized various narcotics offenses, was indivisible and categorically overbroad, and therefore a conviction under that statute cannot qualify as an aggravated felony under the INA. (Cintron v. Attorney General, 2/20/18). AILA Doc. No. 18022361

 

ACTIONS

 

Survey on Northern Triangle Asylum Cases: We are Temple Law students seeking your feedback on a project we are working on with the Washington Office on Latin America (WOLA) to support asylum claims from the Northern Triangle.  We aim to provide asylum lawyers with country conditions information tailored to specific issues that arise commonly in cases from the Northern Triangle but lack sufficient easily accessible factual support. This is where you come in.  We need your advice to determine which issues and countries we should prioritize in our efforts.  To that end, we’d be grateful if you could complete this survey

 

RESOURCES

 

·         Pew: Key facts about U.S. immigration policies and proposed changes

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PWS

02-27-18

Related posts:

  1. THE GIBSON REPORT — 12-31-18 — Compiled By The Always Amazing Elizabeth Gibson, Esquire, NY Legal Assistance Group
  2. OUR BETTER ANGELS: The Gibson Report For 09-05-17 & “A Message For Dreamers”
  3. THE GIBSON REPORT — 04-29-19 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group
  4. THE GIBSON REPORT — 02-15-21 — Compiled By Elizabeth Gibson, Esquire, NY Legal Assistance Group

WELCOME TO BIA-LAND! – Where You Might Be Better Off Committing A Felony Than Concealing It – Matter of Mendez, 27 I&N Dec. 219 (BIA 2018)

3916

Matter of Mendez, 27 I&N Dec. 219 (BIA 2018)

BIA HEADNOTE:

“Misprision of felony in violation of 18 U.S.C. § 4 (2006) is categorically a crime involving moral turpitude. Matter of Robles, 24 I&N Dec. 22 (BIA 2006), reaffirmed. Robles-Urrea v. Holder, 678 F.3d 702 (9th Cir. 2012), followed in jurisdiction only.”

PANEL: BIA APPELLATE IMMIGRATION JUDGES PAULEY, GUENDELSBERGER, and MALPHRUS

OPINION BY: Judge Roger A. Pauley

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

Pretty straight forward. There was a so-called “Circuit split.” Given alternative choices, the BIA almost always chooses the interpretation most favorable to the DHS and least favorable to the respondent.

Hence, the respondent loses, the BIA doesn’t “rock the boat,” the Office of Immigration Litigation can defend the most restrictive position in the Courts of Appeals and, if necessary, before the Supremes, Jeff Sessions remains happy, and BIA judges retain their jobs.

The only losers: Due Process, fairness, and the respondent. But, who cares about them anyway? It’s all about maximizing removals.

PWS

02-27-18

 

 

Related posts:

  1. COMPLICITY HAS COSTS:  Article III Judges’ Association Apparently Worries That Trump, Barr, GOP Toadies Starting To “Treat Them Like Immigration Judges” — Do They Fear Descent To Status Of Mere Refugees, Immigrants, “Dreamers,” Unaccompanied Children, Or Others Treated As “Less Than Persons” By Trump, 5th Cir., 11th Cir., 9th Cir., & The Supremes’ “J.R. Five?” 
  2. REGIME’S NEWEST SCHEME TO SCREW ASYLUM SEEKERS: BOGUS REGS THAT WOULD ILLEGALLY & UNNECESSARILY EXTEND THE GROUNDS OF “MANDATORY DENIAL,” DECREASE ADJUDICATOR DISCRETION, & SHAFT REFUGEE FAMILIES — Regime’s Outlandish “Efficiency Rationale” Fails to Mask Their Cruelty, Racism, Fraud, Waste, & Abuse – Julia Edwards Ainsley (NBC News) & Dean Kevin R. Johnson (ImmigrationProf Blog) Report
  3. HOW “AMERICA’S KILLER COURTS” PROMOTE “CRIMES AGAINST HUMANITY” — HUMAN RIGHTS WATCH: TRUMP & HIS WHITE NATIONALIST SYCOPHANTS & TOADIES TOUT LAWLESS POLICIES THAT VIOLATE LEGAL OBLIGATIONS & HELP KILL, RAPE, TORTURE THOSE RETURNED TO EL SALVADOR — Supremes & Article III Judiciary Complicit In Gross Human Rights Violations! 
  4. AILA’S LAURA LYNCH SPEAKS OUT AGAINST BARR’S LATEST ASSAULT ON DUE PROCESS IN IMMIGRATION COURT — The System Has Become A Public Travesty That Insults Our Constitution — Why Are The Article IIIs Damaging Their Legacy By Enabling This Ugly Charade? — What Good Is Life Tenure If It Comes Without Backbone & Integrity?