Migration – Page 274 – immigrationcourtside.com

NEW PRECEDENT: Applicant Bears Burden Of Showing Mandatory Denial Inapplicable: MATTER OF M-B-C-, 27 I&N Dec. 31 (BIA 2017)

https://www.justice.gov/eoir/page/file/967306/download#31

BIA HEADNOTE:

“Where the record contains some evidence from which a reasonable factfinder could conclude that one or more grounds for mandatory denial of an application for relief may apply, the alien bears the burden under 8 C.F.R. § 1240.8(d) (2016) to prove by a preponderance of the evidence that such grounds do not apply.”

PANEL: Appellate Immigration Judges Malphrus, Mullane, Liebowitz

OPINION BY: Judge Mullane

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This was an unusual case, with lots of competing evidence on both sides. But, normally, this issue came up in routine NACARA or even TPS cases.

Here’s a more “normal”scenario.” The respondent was a private in the El Salvaoran Army during the Civil War in the 1980s. The DHS introduces old country reports and excerpts from the “El Rescate Database” showing that the respondent’s unit was in the department where human rights abuses took place. That’s sufficient to shift the burden to the respondent. to prove he did not engage in persecution.

The respondent testifies that he performed routine duties around the base and was never involved on combat, never harmed any civilian, and never witnessed any civilian being harmed.

That’s the case! Now the Immigration Judge has to make a decision on that skimpy evidence.

Things to keep in mind:

!) The U.S. Government was supporting the Salvadoran military during the Civil War. Indeed, a number of the individuals that DHS now claims were “persecutors of others” received military training in the U.S. or from U.S. officers.

2) The INS and the Immigration Courts summarily rejected asylum claims from individuals who suffered severe human rights violations amounting to persecution inflicted by the Salvadoran Government, the Armed Forces, the Civil Patrol, and entities aligned with them, such as so-called “death squads.”

Victim or persecutor,

Friend or foe,

The U.S. system,

Is a tough go.

PWS

05-19-17

DOJ’s Location Of U.S. Immigration Courts At Obscure Detention Locations Helps DHS To Deny Due Process, Punish Lawyers!

https://www.propublica.org/article/immigrants-in-detention-centers-are-often-hundreds-of-miles-from-legal-help

Patrick G. Lee writes in ProPublica:

“One morning in February, lawyer Marty Rosenbluth set off from his Hillsborough, North Carolina, home to represent two anxious clients in court. He drove about eight hours southwest, spent the night in a hotel and then got up around 6 a.m. to make the final 40-minute push to his destination: a federal immigration court and detention center in the tiny rural Georgia town of Lumpkin.

During two brief hearings over two days, Rosenbluth said, he convinced an immigration judge to grant both of his new clients more time to assess their legal options to stay in the United States. Then he got in his car and drove the 513 miles back home.

“Without an attorney, it’s almost impossible to win your case in the immigration courts. You don’t even really know what to say or what the standards are,” said Rosenbluth, who works for a private law firm and took on the cases for a fee. “You may have a really, really good case. But you simply can’t package it in a way that the court can understand.”

His clients that day were lucky. Only 6 percent of the men held at the Lumpkin complex — a 2,001-bed detention center and immigration court — have legal representation, according to a 2015 study in the University of Pennsylvania Law Review. Nationwide, it’s not much better, the study of data from October 2006 to September 2012 found: Just 14 percent of detainees have lawyers.

That percentage is likely to get even smaller under the Trump administration, which has identified 21,000 potential new detention beds to add to the approximately 40,000 currently in use. In January, President Trump signed an executive order telling the secretary of homeland security, who oversees the Immigration and Customs Enforcement agency, to “immediately” start signing contracts for detention centers and building new ones.

If history is any guide, many of those facilities will end up in places like Lumpkin, population 2,741. The city’s small downtown has a courthouse, the police department, a couple of restaurants and a Dollar General. There’s no hotel and many of the nearest immigration lawyers are based 140 miles away in Atlanta.

“It’s been a strategic move by ICE to construct detention centers in rural areas,” said Amy Fischer, policy director for RAICES, a San Antonio-based nonprofit that supports on-site legal aid programs at two Texas facilities for detained families. “Even if the money is there, it’s very difficult to set up a pro bono network when you’re geographically three hours away from a big city.”
ICE currently oversees a network of about 200 facilities, jails, processing centers and former prisons where immigrants can be held, according to a government list from February.

Unlike criminal defendants, most immigrants in deportation proceedings are not entitled to government-appointed lawyers because their cases are deemed civil matters. Far from free legal help and with scant financial resources, the majority of detainees take their chances solo, facing off against federal lawyers before judges saddled with full dockets of cases. Frequently they must use interpreters.

An ICE spokesman denied that detention facilities are purposely opened in remote locations to limit attorney access. “Any kind of detention center, due to zoning and other factors, they are typically placed in the outskirts of a downtown area,” said spokesman Bryan Cox. “ICE is very supportive and very accommodating in terms of individuals who wish to have representation and ensuring that they have the adequate ability to do so.” At Lumpkin’s Stewart Detention Center, for instance, lawyers can schedule hourlong video teleconferences with detainees, Cox said.

But a ProPublica review found that access to free or low-cost legal counsel was limited at many centers. Government-funded orientation programs, which exist at a few dozen detention locations, typically include self-help workshops, group presentations on the immigration court process, brief one-on-one consultations and pro bono referrals, but they stop short of providing direct legal representation. And a list of pro bono legal service providers distributed by the courts includes many who don’t take the cases of detainees at all. Those that do can often only take a limited number — perhaps five to 10 cases at a time.

The legal help makes a difference. Across the country, 21 percent of detained immigrants who had lawyers won their deportation cases, the University of Pennsylvania Law Review study found, compared to just 2 percent of detainees without a lawyer. The study also found that 48 percent of detainees who had lawyers were released from detention while their cases were pending, compared to 7 percent of those who lacked lawyers.

Legal counsel can also speed up the process for those detainees with no viable claims to stay in the country, experts said. A discussion with a lawyer might prompt the detainee to cut his losses and opt for voluntary departure, avoiding a pointless legal fight and the taxpayer-funded costs of detention.

Lawmakers in some states, such as New York and California, have stepped in to help, pledging taxpayer money toward providing lawyers for immigrants who can’t afford their own. But such help only aids those detainees whose deportation cases are assigned to courts in those areas.

“What brings good results is access to family and access to counsel and access to evidence, and when you’re in a far off location without those things, the likelihood of ICE winning and the person being denied due process increase dramatically,” said Conor Gleason, an immigration attorney at The Bronx Defenders in New York.”

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Read the complete article at the above link.

Lumpkin is “at the outskirts” of what “downtown area?” Don’t all major metro areas have “metropolitan correctional centers,” city jails, county jails, or some equivalent located near the courts and hub of legal activities for criminal defendants awaiting trial? Why are civil detainees allowed to be treated this way?

For far too long, under AGs from both parties, the DOJ has participated in this disingenuous charade designed to promote removals over due process. Because cases often have to be continued for lawyers, even where none is likely to be found, the procedure actually adds to detention costs in many cases. Why not house only those with final orders awaiting removal or with pending appeals at places like Lumpkin? Why don’t the BIA and Courts of Appeals rule that intentionally detaining individuals where they cannot realistically exercise their “right to be represented by counsel of their own choosing” is a denial of due process?

Look for the situation to get much worse under Sessions, who envisions an “American Gulag” where detention rules as part of his program to demonize migrants by treating them all as “dangerous criminals.”

Meanwhile, as I pointed in a recent panel discussion at AYUDA, the only part of the immigration system over which the private sector has any control or influence these days is promoting due process by providing more pro bono lawyers for migrants. Eventually, if those efforts are persistent enough, the Government might be forced to change its approach.

PWS

05-18-17

DEATH WATCH: Average 1/MO Dies In ICE Custody — And It’s Only Just Beginning, As Another ICE Detainee Dies, This Time In Atlanta!

http://www.cnn.com/2017/05/17/us/ice-atlanta-detainee-dies/index.html

Catherine E. Shoichet reports for CNN:

“Atlanta (CNN) A man in Immigration and Customs Enforcement custody has died after being hospitalized for shortness of breath, officials said Wednesday.

Atulkumar Babubhai Patel was pronounced dead at Atlanta’s Grady Memorial Hospital on Tuesday afternoon.

The 58-year-old Indian national’s death is the second death of a detainee in ICE custody this week — and the second this week in the state of Georgia.

Officials said complications from congestive heart failure were ruled the preliminary cause of death.

Patel arrived at the Atlanta airport on May 10 on a flight from Quito, Ecuador. Authorities denied him entry into the United States because he did not have the necessary immigration documents, ICE said.

He was transferred to ICE custody in the Atlanta City Detention Center on Thursday, according to the agency. An initial medical screening at the time determined he had high blood pressure and diabetes. Two days later, Patel was transported to the hospital after a nurse checking his blood sugar noticed he had shortness of breath, ICE said. He died on Tuesday afternoon.

In its statement announcing Patel’s death, officials said fatalities in ICE custody are “exceedingly rare.”

“ICE is firmly committed to the health and welfare of all those in its custody and is undertaking a comprehensive agency-wide review of this incident, as it does in all such cases,” ICE said.

Second death this week

Patel is the eighth person to die in ICE custody this fiscal year, which began in October.

Authorities are also investigating the death of another immigrant detainee in Georgia. Jean Jimenez-Joseph, 27, was found unresponsive in his cell on Monday with a sheet around his neck. The preliminary cause of death was self-inflicted strangulation.

Immigrant detained at Stewart Detention Center dies in apparent suicide

He’d been in solitary confinement for more than two weeks at the Stewart Detention Center in Lumpkin, Georgia.

The recent deaths have drawn sharp criticism from immigrant rights activists, who have long decried conditions in immigration detention centers and called on the government to close such facilities.

US President Donald Trump has called for increasing detention as part of his crackdown on illegal immigration. And Congress recently upped its funding for immigrant detention, approving a spending bill that pays for an average of more than 39,000 detention beds per day.

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“Exceedingly rare?” Like in two deaths in one week in ICE custody in Georgia? In addition to ruined lives, the Trump/Sessions/Kelly vision for an “American Gulag” is certain to cause more preventable deaths in DHS custody, in light of the well-documented substandard conditions in such facilities, particularly those run by private contractors and local jailers. I guess each member of the “Triumvirate of Death” is well enough off so a few million in civil judgments wouldn’t be a problem. But, the taxpayers are likely to be shelling out megabucks for some tort claims.

PWS

05-17-17

ICE Gets Jollies By Busting More Non-Criminals, Adding to Immigration Court Backlogs!

https://www.washingtonpost.com/local/immigration-arrests-up-during-trump/2017/05/17/74399a04-3b12-11e7-9e48-c4f199710b69_story.html

Maria Sacchetti reports in the Washington Post:

“Federal immigration agents are arresting more than 400 immigrants a day, a sharp leap from last year that reflects one of President Trump’s most far-reaching campaign promises.

In Trump’s first 100 days in office, U.S. Immigration and Customs Enforcement arrested 41,318 immigrants, up 37.6 percent over the same period last year, the agency said Wednesday. Almost 3 out of 4 of those arrested have criminal records, including gang members and fugitives wanted for murder. But the biggest increase by far is among immigrants with no criminal records.

“This administration is fully implementing its mass-deportation agenda,” said Gregory Chen, government relations director for the American Immigration Lawyers Association. “They’re going after people who have lived here for a long time.”

. . . .

Acting ICE director Thomas Homan said the statistics released Wednesday show that agents still prioritize lawbreakers: 30,473 criminals were arrested from Jan. 22 to April 29, an 18 percent increase from the same period in 2016.

Meanwhile, arrests of immigrants with no criminal records more than doubled to nearly 11,000, the fastest-growing category by far.

“Will the number of noncriminal arrests and removals increase this year? Absolutely,” Homan said. “That’s enforcing the laws that are on the books.”

What is less clear is what is happening to the immigrants who are being taken into custody.

Overall, deportations have fallen about 12 percent this year, to about 56,315 people, which Homan attributed to a severe backlog in federal immigration courts. He also said it can take longer to deport criminals than those without criminal records, because those in the former category may have additional court proceedings. The Trump administration has called for additional immigration judges and detention space to speed deportations.

Homan did not say how many of the 41,318 people whose arrests were announced Wednesday have been deported, remain in custody or have been released.

Unlike criminal arrests, records of immigration arrests — which are considered civil violations — are not publicly accessible.

The secrecy allows immigration officials to pick and choose which examples of their work to highlight. On Wednesday, they said the immigrants arrested since Trump’s executive order include Estivan Rafael Marques Velasquez, an alleged MS-13 gang member from El Salvador captured in New York in February; Juan Antonio Melchor Molina, a fugitive wanted for a 2008 murder in Mexico who was arrested last month in Dallas; and William Magana-Contreras, another reputed MS-13 member arrested in Houston last month. Magana-Contreras is wanted for aggravated homicide in El Salvador, officials said.

Some advocates questioned whether ICE is truly prioritizing the most serious criminals.

Parastoo Zahedi, an immigration lawyer in Virginia, said ICE is actively trying to deport one of her clients to Italy because of a conviction for possession of a small amount of marijuana. He has lived in the United States nearly all his life.

“It’s not criminal aliens,” Zahedi said. “It’s anyone that they can catch.”

Ava Benach, a D.C. immigration lawyer, said ICE agents are “empowered, emboldened and . . . eager to enforce the law aggressively.”

Advocates also questioned the wisdom of arresting thousands more immigrants — especially those who pose no known public safety threat — when immigration courts are severely backlogged. But Homan said that is the agency’s job.

. . . .

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Let’s put this in plain language. We have a law that doesn’t work, and a system that is broken. There are an estimated 11 million undocumented individuals residing in the U.S. Most of them work, pay taxes (in some form), and contribute to the economy. Many have immediate relatives who are US citizens or otherwise in the country legally.

Because everyone can’t possibly be removed, the “unfocused” enforcement advocated by Homan on behalf of the Trump Administration turns out to be highly if not completely arbitrary. In most cases of those without serious criminal records, removal would be a net loss to our country.

Moreover, the Administration has reassigned U.S. Immigration Judges away from their regular dockets to work on detained cases, which, understandably, are the highest priority. By mindlessly “jacking up” the detained docket, the Administration guarantees that backlogs will continue to build on the “non-detained” dockets.

The Immigration Courts now have a backlog approaching 600,000, and it continues to grow by leaps and bounds even though there are more Immigration Judges on duty now than in past years and productivity has remained constant over the past few years (although Immigration Judges still complete multiples of what other similarly situated Federal Judges do, and far more cases than the
“ideal”). This is because of the “Aimless Docket Reshuffling” — ADR — foisted on the Immigration Courts by the past two Administrations.

While, at the very end of the Obama Administration ICE was making some progress toward smarter, more focused use of enforcement resources, which took into account the finite limits of Immigration Court dockets, the Trump Administration has returned to a policy of random irrational enforcement. They have also limited the discretion of individual ICE Assistant Chief Counsel to exercise discretion to get what should be “low priority” cases off the docket — in other words, to exercise “prosecutorial discretion” — “PD” — as other prosecutors do.

PWS

05-17-17

WashPost: Courtland Milloy Lays Bare Sessions’s White Nationalist Agenda!

https://www.washingtonpost.com/local/a-virginia-politician-calls-for-hate-to-leave-his-hometown-easier-said-than-done/2017/05/16/0ca5dc3a-3a55-11e7-9e48-c4f199710b69_story.html?utm_term=.39c1a4b01e14

Milloy writes in an op-ed:

“Here’s what white supremacy really looks like:

Attorney General Jeff Sessions gearing up for another “war on crime.” But first, he has to manufacture enough fear of people of color. He recently tried by declaring, falsely, that New York “continues to see gang murder after gang murder, the predictable consequence of the city’s ‘soft on crime’ stance.”

Sessions threatened to withhold millions of dollars in federal grants from the city’s police department if the city didn’t start turning in undocumented immigrants to federal authorities.

[Sessions issues sweeping new criminal charging policy ]

In other words, if New York doesn’t have a crime problem now, Sessions would cut police funding until it did have one.

New York Mayor Bill de Blasio, citing the city’s low crime rate, called Sessions’s remarks “outrageous” and “pitiful.” Sessions later conceded that New York police had created “some of the best” techniques for fighting crime.

But that’s not the end of it.

Under the Trump administration, local police departments are slated to get more powerful weaponry and expanded powers to use them. Corporate prison complexes could see an increase in profits if Sessions’s push to bring back mandatory minimum sentences moves forward. Rural communities in majority white areas will get new prisons — along with jobs overseeing a veritable plantation of mostly black and Hispanic inmates.
The judiciary is a key component in the maintenance of this system. Police are rarely charged for fatally shooting someone while on duty. According to an analysis by The Washington Post and researchers at Bowling Green State University, 54 officers faced charges for such shootings between 2005 and 2015, a fraction of the fatal police shootings that occurred across the country in that time. The majority of the officers whose cases have been resolved have not been convicted, The Post found.

The Post also reported: “Among the officers charged since 2005 for fatal shootings, more than three-quarters were white. Two-thirds of their victims were minorities, all but two of them black.”

It is as if the vision of Rep. Steve King (R-Iowa), who recently declared that white “culture and demographics are our destiny,” are coming true. In effect, black and brown lives do not matter.

And with voting rights under attack, the chances of getting elected officials who might take a stronger stance for justice becomes slimmer by the year.

On Monday, the U.S. Supreme Court upheld a lower court’s ruling that North Carolina legislators had acted “with almost surgical precision” to blunt the influence of black voters. But Chief Justice John G. Roberts Jr. made clear in a separate opinion that the ruling did not mean that court was taking a stand for or against the actions. Encouraged by the high court’s statement, the legislators have vowed to keep at their obstructionist ways.

President Trump, having fomented fears of “Mexican rapists” during his campaign, announced Monday that he was cracking down on a Mexican gang. “MS-13 is going to be gone from our streets very soon, believe me,” he said, during a ceremony for slain police officers. “When policing is reduced, it’s often the poorest and most vulnerable Americans who are the first to suffer. We have all seen the tragic rise in violence and crimes in many of our disadvantaged communities.”
But Trump offered no plan for dealing with that disadvantage. Nothing about more jobs or affordable housing. Not better health care — just more police officers with bigger guns.

No need for the white protesters to wave Confederate flags and chant “white power.” Trump and Sessions know how to placate them by attacking black freedoms.

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PWS

05-17-17

SANCTUARY: MD AG Issues Guidance On Cooperation With ICE!

Here is the guidance memorandum published by MD Attorney General Brian Frosh on state and local cooperation with ICE:

http://www.marylandattorneygeneral.gov/Reports/Immigration_Law_Guidance.pdf

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Many thanks to Dan Kowalski at LexisNexis and Professor Elizabeth Keyes at the University of Baltimore School of Law for bringing this to my attention.

PWS

05-16-17

9th Cir. Panel Grills Both Sides In Travel Ban 2.0 Case!

https://www.washingtonpost.com/national/religion/another-appeals-court-to-weigh-trumps-revised-travel-ban/2017/05/15/5f188d56-3946-11e7-a59b-26e0451a96fd_story.html?utm_term=.038612a73dbd

Gene Johnson for AP reported in the Washington Post:

“SEATTLE — Federal judges on Monday peppered a lawyer for President Donald Trump with questions about whether the administration’s travel ban discriminates against Muslims and zeroed in on the president’s campaign statements, the second time in a week the rhetoric has faced judicial scrutiny.

Acting Solicitor General Jeffrey Wall, defending the travel ban, told the three-judge panel of the 9th U.S. Circuit Court of Appeals that the executive order should be reinstated because it falls well within the president’s authority.

“No one has ever attempted to set aside a law that is neutral on its face and neutral in its operation on the basis of largely campaign trail comments made by a private citizen running for office,” he said.

Further, Wall said the president had backed off the comments he made during the campaign, clarifying that “what he was talking about was Islamic terrorist groups and the countries that sponsor or shelter them.”

Neal Katyal, who represented Hawaii, a plaintiff in the lawsuit, expressed disbelief at that argument and said Trump had repeatedly spoken of a Muslim ban during the presidential campaign and after.

“This is a repeated pattern of the president,” Katyal said.

The 9th Circuit panel was hearing arguments over Hawaii’s lawsuit challenging the travel ban, which would suspend the nation’s refugee program and temporarily bar new visas for citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen. The judges will decide whether to uphold a Hawaii judge’s decision in March that blocked the ban.

Last week, judges on the 4th Circuit Court of Appeals heard arguments over whether to affirm a Maryland judge’s decision putting the ban on ice. They also questioned whether they could consider Trump’s campaign statements, with one judge asking if there was anything other than “willful blindness” that would prevent them from doing so.

Dozens of advocates for refugees and immigrants rallied outside the federal courthouse in Seattle, some carrying “No Ban, No Wall” signs.”

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Read the entire article at the link. Challenges to District Court orders enjoining parts of “Travel Ban 2.0” are pending on both coasts — in the 9th Circuit and the 4th Circuit. stay tuned!

PWS

05-16-17

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

The Good

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

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

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

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

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

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

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

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

The Bad

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

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

The Ugly

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

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

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

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

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

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

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

PWS

05-16-17

THE HILL: N. Rappaport — Will Sessions’s Criminal Immigration Enforcement Program Succeed?

http://thehill.com/blogs/pundits-blog/immigration/333419-the-days-of-abdicating-our-duty-to-enforce-immigration-laws

Nolan writes:

“On May 11, 2017, Attorney General Jeff Sessions made an appearance before Customs and Border Protection officers at the U.S.-Mexico border to announce the issuance of new guidance to federal prosecutors on criminal immigration enforcement.

It is here, along this border, he said, that transnational gangs like MS-13and international cartels flood our country with drugs. They leave death and violence in their wake. “And it is here that criminal aliens and the coyotes and the document forgers seek to overthrow our system of lawful immigration.”

“I am here to tell you, the brave men and women of Customs and Border Protection: we hear you and we have your back.”

The president has made enforcement of our immigration laws a priority, and we are seeing the results already. Illegal crossings dropped by 40 percent from January to February of this year, and last month, we saw a 72 percent drop compared to the month before the president was inaugurated. This is the lowest monthly figure in the last 17 years.

It is “the Trump era.” The days of abdicating our duty to enforce the immigration laws are over.

. . . .

Sanctuary cities ‘harboring‘ aliens: Trump’s next immigration target?

The harboring provision provides criminal penalties for concealing, harboring, or shielding aliens from detection knowing that they are in the United States illegally.

Harboring that results in the death of any person, may “be punished by death or imprisoned for any term of years or for life.”

The harboring provision does not specify what actions constitute “harboring,” and the courts have not settled on one uniform definition.

According to the Second Circuit, it encompasses “conduct tending substantially to facilitate an alien’s ‘remaining in the United States illegally,’ provided that the person charged has knowledge of the immigrant’s unlawful status.”

Isn’t that what officials in sanctuary cities are doing when they take affirmative steps to help undocumented aliens to remain in the United States unlawfully? “

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

I’m skeptical that anything “sanctuary cities” are doing could be prosecuted as “harboring.”

PWS

05-16-17

Session’s Half Truths On Local Prosecutions

http://www.politifact.com/truth-o-meter/statements/2017/may/10/jeff-sessions/sessions-claims-district-attorneys-charge-immigran/

Miriam Valverde reports inPolitiFact:

“Attorney General Jeff Sessions raised concerns to New York law enforcement officers over practices of some district attorneys that he said favored immigrants.

“It troubles me that we’ve seen district attorneys openly brag about not charging cases appropriately under the laws of our country, so that provides an opportunity for individuals not to be convicted of a crime that might lead to deportation,” Sessions said April 28 in Long Island, N.Y. “Some have advertised that they will charge a criminal alien with a lesser offense than presumably they would charge a United States citizen, so they won’t be deported. That baffles me.”

Is Sessions right about district attorneys advertising leniency in charges toward immigrants over U.S. citizens?

The Justice Department, led by Sessions, referred us to policies and practices of the Brooklyn District Attorney, Santa Clara District Attorney and Baltimore State’s Attorney’s Office.

While all three jurisdictions refuted Sessions’ characterization of their policies, we found that some offices are considering alternative offenses a defendant can plead to in order to avoid “disproportionate collateral consequences,” such as deportation. They also point to a U.S. Supreme Court case that said considering deportation consequences in the plea-bargaining process may be a wise move for defendants and states.

Here’s an overview of those policies.”

. . . .

Sessions said district attorneys “advertise that they will charge a criminal alien with a lesser offense than presumably they would charge a United States citizen.”

District and state attorneys in Brooklyn, Santa Clara and Baltimore have issued directives for prosecutorial discretion in the handling of non-violent cases involving non-U.S. citizens (which includes immigrants living in the United States legally and illegally).

Attorneys told us that the alternative sentences are designed to help people avoid deportation for minor crimes, and that sometimes the plea deals mean the person ends up with a stricter or longer sentence, or a faster guilty plea. They also contend that they are not charging immigrants favorably over citizens, as policy consideration goes into effect after charges are made.

The Supreme Court recently recognized that deportations can represent a disproportionate punishment. A recent case found that defense attorneys must inform their clients when a plea carries a risk of deportation. Justices also noted that considering deportation consequences in the plea bargaining process may benefit both defendants and states.

Sessions’ statement is partially accurate, but leaves out important details or takes things out of context. We rate it Half True.”

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

For a guy who plays as fast and loose with the truth as Sessions, I suppose half true is a relatively decent rating. For anyone else, not so much. I’ve never seen even a shred of humanity and decency from this dude, at least on the issue of immigration.

Thanks to Nolan Rappaport for sending this in.

PWS

O5-15-17

DC Superintendent Of Education Understands Students’ Immigration Fears — She Was Undocumented Herself!

https://www.washingtonpost.com/posteverything/wp/2017/05/08/i-know-the-fear-of-immigrant-families-because-i-was-once-undocumented-myself/?hpid=hp_no-name_opinion-card-d%3Ahomepage%2Fstory&utm_term=.b49dee569961

D.C. Superintendent Hanseul Kang writes in the Washington Post:

“The mother was serious as she approached the principal of her daughter’s D.C. school. Would the principal consider becoming her child’s legal guardian in the event she was deported, so her daughter, a U.S. citizen, could stay in the country?

It was a surreal question but one rooted in real fear.

The political rhetoric about immigration, along with high-profile enforcement actions by Immigration and Customs Enforcement, has instilled palpable anxiety in immigrant families across the country, elevating a background level of uncertainty to an urgent concern. In the days after an ICE raid in Las Cruces, N.M., in February, more than 2,000 students were kept home from school. A Los Angeles community is reeling after ICE agents arrested a father moments after he dropped off his 12-year-old daughter at school.

Confusion is exacerbating fear, especially in young children, who may not fully understand the concepts of countries, borders and citizenship. During a class discussion at that same D.C. school, a student worried aloud that he’d be forced to move back to where he came from. When asked where he was from, he said Florida.

We haven’t seen any spikes in absences in the District, where Mayor Muriel Bowser has affirmed her commitment to being a sanctuary city and protecting the rights of immigrant residents. But ICE arrested 82 people in the region in a five-day sweep last month. Our schools have hosted “know your rights” workshops and fielded questions from panicked parents. At one meeting I attended, teachers pledged to parents that they would be arrested themselves before allowing ICE officials into the building. Still, it’s hard for families to know whom to trust.

I have some sense of what that’s like.

I was born in South Korea and came to the United States when I was 7 months old, on Christmas Eve, 1982. When I was 16 — excited to get a driver’s license and apply to college — I learned that I was undocumented.

In one afternoon, my world turned upside down. With all the trappings of a high school overachiever, I had assumed I could attend pretty much any college or university. But without access to federal financial aid, I might not be able to go at all. I couldn’t work, couldn’t drive, couldn’t travel outside the country. Even worse was the terrifying possibility that my family might be discovered and deported.

. . . .
That is my concern about the impact of this latest shift in rhetoric and policy on immigrants: that as a country we will convey, especially to our students, that we question their value and their abilities. Not only is that message dehumanizing, but it discourages the talent and leadership we need to continue to thrive as a nation. Even as many have spoken out in support of preserving Deferred Action for Childhood Arrivals, I worry that in advocating for a small exception to U.S. immigration policy — albeit for young people in a uniquely vulnerable position, those who came to the United States without legal documentation, or who fell out of legal status, as children — we miss the broader value of immigrants to our country.

Educators can be an important source of support for students and their families. They were for me. But it should not fall on an individual principal or teacher to protect a child or a family from immigration enforcement, and no parent should have to ask them to. We have to do better for our students and for our nation.”

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

Superintendent Kang is a wonderful example of why Jeff Sessions and his white nationalist cohorts are wrong in failing to value the contributions of all types of migrants to the prosperity and success of the US. What kind of nation, with what kind of national values, intentionally creates a climate of fear among its youth who are the hope for the future?

PWS

05-13-17

Trump On Verge Of Another Travel Ban Loss?

https://www.washingtonpost.com/local/public-safety/us-judge-in-dc-signals-readiness-to-become-third-to-order-halt-to-revised-trump-travel-ban/2017/05/11/af41537e-365f-11e7-b412-62beef8121f7_story.html?utm_term=.525536a419ad

Spencer Hsu reports in the Washington Post:

“A federal judge in Washington on Thursday signaled her willingness to become the third judge nationwide, if needed, to order a halt to President Trump’s revised executive order banning new visas and immigration from six Muslim-majority countries.

U.S. District Judge Tanya S. Chutkan postponed ruling on two combined challenges to the White House action by Iranian-American organizations and a Shi’a Muslim group, saying she would wait for decisions expected after federal appeals courts arguments this month on halts imposed March 15 by judges from Hawaii and Maryland.

But Chutkan said she was persuaded by arguments that the groups’ missions and the lives of more than a dozen individual plaintiffs would be unconstitutionally harmed by the travel ban.

“Upon consideration of the parties’ submissions, the court is inclined to agree with Plaintiffs that they are likely to succeed on the merits of their claims. However … The existence of two other nationwide injunctions temporarily casts uncertainty on the issue of whether the harms Plaintiffs allege are actually imminent or certain,” Chutkan wrote in a two-page order that did not delve into the arguments.

A 13-judge panel of the U.S. Court of Appeals for the 4th Circuit in Richmond is expected to issue a ruling after becoming the first appellate court to hear arguments on the question Monday. Arguments before a three-judge panel of the 9th Circuit in San Francisco are set for May 15, Chutkan noted.

She concluded: “In the event that both existing injunctions are overturned, this court is prepared to issue a ruling without delay.”

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

Looks like this issue is unlikely to go away any time soon. The Trump Administration is fueling a litigation bonanza for lawyers.

PWS

05-13-17

DEADLY CARE: Trump Immigration Detention Policies Could Be Life-Threatening For Vulnerable Migrants!

http://www.businessinsider.com/immigrant-detention-centers-condition-2017-5

Business Insider republished a recent report from Christie Thompson of The Marshall Project:
“Even as the Trump administration prepares to loosen oversight over immigrant detention facilities, medical care already can be so substandard that cancer is treated with ibuprofen, schizophrenia with Benadryl and serious mental illness with solitary confinement, two new reports found.

Human Rights Watch, along with the nonprofit Community Initiatives for Visiting Immigrants in Confinement, asked outside medical experts to review 18 deaths in immigration facilities between May 2012 and June 2015 — and found alleged medical neglect contributed to the early deaths of seven detainees, according to their joint report released Monday. The nonprofit organizations also interviewed 90 current and former detainees for the report.

Their findings come on the heels of a survey of 83 detainees about conditions in two for-profit detention centers in Georgia, released last week by a separate group of nonprofit organizations. The detainees claimed, among other grievances, that their requests for medical care were often ignored and even landed some in segregation.

A spokeswoman for Immigration and Customs Enforcement said the agency will review the Human Rights Watch and CIVIC report to determine if any changes needed to be made.

“ICE is committed to ensuring the welfare of all those in the agency’s custody, including providing access to necessary and appropriate medical care,” said spokeswoman Jennifer Elzea, who added that all detainees had access to licensed mental health providers. “At no time during detention will a detainee be denied emergent care.”

ICE spokesman Bryan Cox in Georgia said both centers there — Stewart and Irwin — were in compliance with ICE’s detention standards and subject to regular inspections. “The Department of Homeland Security Office of the Inspector General and ICE’s Office of Professional Responsibility investigate all allegations of abuse,” he wrote in an email.

Immigrants can be held in ICE-funded facilities or in local jails that are paid contract fees. As it ramps up enforcement against undocumented immigrants, the Trump administration has been hunting for more jailers to hold detainees — and perhaps lowering the bar to find them. The New York Times reported last month that the Department of Homeland Security was planning to loosen requirements for county jails that hold immigrant detainees. Three of the deaths identified by Human Rights Watch happened in a local facility.

The Department of Homeland Security has also closed the Office of Detention Policy and Planning, which was tasked with leading ICE’s effort to reform its detention facilities. Elzea, the ICE spokeswoman, noted that oversight is still provided by on-site detention service managers, as well as several other offices within the agency.

Advocates fear conditions will worsen. “The records revealed ICE’s failure to monitor and correct problems even when they themselves identified them,” said Grace Meng of Human Rights Watch, one of the authors of the report. In three deaths at Eloy Detention Center in Arizona, for example, staffers delayed calling 911 because they weren’t sure who was allowed to make the call under the facility’s protocol, Meng said.

“I’m even more concerned now that we have an administration that wants to cram more people into these broken detention centers,” Meng said.

Human Rights Watch and CIVIC detailed the suicide of another woman who was repeatedly held in solitary confinement without mental health treatment. “The medical staff kept doing the same thing, expecting a different outcome. That she finally killed herself should not have come as a surprise,” wrote one of the doctors reviewing ICE’s records.

In both reports, multiple immigrants reported seriously inadequate mental health care; one detainee in Georgia told advocates that the mentally ill were locked in a segregation cell in handcuffs and a helmet.

Immigrants and their families have few outlets for relief. Immigrants told Human Rights Watch that the grievance forms are written only in English and Spanish and that grievances, once filed, often disappeared without any response. “I have no idea if there are mental health services here, nor do I know how to file a grievance,” an immigrant at Stewart Detention Center told Georgia advocates.

Others alleged they were punished, even put in solitary confinement, for complaining. Few detainees have access to an attorney, which means filing a lawsuit is generally beyond their reach.

“By not properly tracking and investigating each complaint, our government sends a message that medical neglect of immigrants will be tolerated,” said Christina Fialho, co-executive director of CIVIC.

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

I think that migrants are likely to die or be seriously harmed by poor conditions in DHS detention. Taxpayers then will be on the hook for some big damage awards. Additionally, in light of the available information, including internal reuports on poor conditions in detention, I believe that some high-ranking officials at DHS and DOJ could be subject to “Bivens suits” for knowingly and intentionally violating the constitutional rights of civil detainees.

PWS

05-13-17

COURTSIDE HISTORY: 10 Immigrant Women Who Changed US History!

https://www.popsugar.com/news/Famous-Immigrants-USA-43395560?utm_campaign=news_share&utm_medium=apple&utm_source=news

Popsugar reports:

“As the war on immigration rages all around, the resistance is doubling down: judges nationwide have blocked the latest travel ban and a growing number of sanctuary cities have filed lawsuits over the Trump administration’s threats to withhold federal funding. In times of political uncertainty, taking stock of our history may be our best hope for gaining the perspective necessary to move forward. After all, history is the story of everyday people and movements over time.

Consider America’s original inhabitants, who crossed the Bering Strait tens of thousands of years ago, followed by the first wave of European settlers in 1500 and the violent, forced migration of African slaves starting in the 1600s. Later, in the 1890s, a new generation of people entered America, starting with Annie Moore, a young Irish woman who was the first of many immigrants processed at Ellis Island. Immigration is our shared history; moving to new lands that promise greater opportunity is human nature.

Here we reflect on 10 immigrant women who helped shape America’s history and culture. If you thought images from the recent Day Without Immigrants protest were haunting, consider how different your life might be without Hedy Lamarr’s inventions or Dr. Elizabeth Stern’s research.”

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

Read the complete article with bios and pictures at the link. White nationalists like Jeff Sessions consistently deny or fail to recognize the essential contributions of immigrants to making America great. Sessions is consistently on the “wrong side” of history.

PWS

05-13-17

Someday, These US Citizen Kids Will Be Voters, Quite Possibly Government Officials Themselves — Will They Show Others The Compassion, Respect, & Consideration Denied Them?

https://www.washingtonpost.com/local/social-issues/when-your-child-needs-you-and-you-are-far-away/2017/05/12/e0c53742-1622-11e7-ada0-1489b735b3a3_story.html?utm_term=.34b1122f70c7

Maria Sacchetti reports in the Washington Post:

“In a church hall in Northern Virginia, a father of two named Jose sat at a long table and stared at the legal document before him. It was a road map for life without him.

He initialed the clause that said that if he and his wife were arrested or deported, the person they were choosing as a guardian for their girls would make decisions about their schooling.

With his index finger tracing each line, he read how the guardian would bring the girls to school and day care, decide who will pick them up, and have the power to book airline tickets on their behalf so the children could reunite with their parents in Central America.

The next line highlighted the power to make decisions if either girl was hospitalized. At this, Jose froze.

“That’s when they need me,” he said to himself. “What if I’m not there?”

It is a question thousands of undocumented immigrants are asking across the United States, in the apple orchards outside Spokane, Wash., the blueberry fields near Grand Rapids, Mich., and at churches and community centers in Maryland and Virginia.

On Spanish-language television and online, immigration lawyers and foreign consulates are responding to a widely publicized immigration crackdown by the Trump administration, and urging undocumented parents who could be deported to leave clear instructions for their bank accounts, real estate holdings and — most of all — their children.

About 5.1 million children in this country have a parent who is here illegally, according to estimates from the Migration Policy Institute. Nearly 80 percent of those children are U.S. citizens.

Hector Quiroga, a Spokane immigration lawyer, said that after Trump took office his call volume peaked at 300 calls a day from people seeking to protect their children and assets. He hired three new secretaries, but could not keep up. Then he posted the instructions for selecting a guardian online. The video had been viewed more than 35,000 times.

“People are petrified,” Quiroga said. “They’re desperately trying to get these documents.”

Lawyers caution that custody rules vary by state, and they are urging parents to consult with nonprofits and family lawyers before signing any documents. In Virginia, for instance, immigrants can assign temporary caretakers for their children by signing powers of attorney documents before a licensed notary. But in Maryland, someone designated by the parents would have to go to court to seek guardianship.

Even in states where the laws are complex, lawyers say parents should craft an emergency plan that appoints someone to take charge if they are detained.

“I would definitely say to take the safety precautions,” said Michelle Mendez, an attorney with Catholic Legal Immigration Network Inc., based in Baltimore. “Anybody can get detained and deported right now.”

That was clear to Jose and his wife, GG, as they watched news footage of immigration arrests in the weeks after Trump’s inauguration, sitting on pushed-together couches in the living room of the tidy Northern Virginia colonial they share with their daughters, Jose’s parents and his sister and her family.

Jose is a welder from El Salvador. GG, from Honduras, works at McDonald’s. The couple asked that their full names not be published, out of fear that such exposure would make it easier for deportation agents to find them.”

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

Read the rest of the story at the link.

For the sake of their descendants, immigration “hardliners” had better hope that these U.S. citizen kids grow up to more generous and humane than the “hardliners” have been. “Alienating” a significant portion of our younger generation of Americans can never be a good idea.

PWS

05-12-17

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