CHICAGO TRIBUNE: Asylum Experts Michelle Mendez & Swapna Reddy Challenge Gonzo’s Bogus Apocalyptic Smear Of U.S. Asylum Applicants!

http://www.chicagotribune.com/news/opinion/commentary/ct-perspec-asylum-sessions-immigration-1024-20171023-story.html

Michelle and Swapna write:

“What would you do if your brother was murdered, and your child had received death threats? How would you respond if you had been repeatedly raped, and your government did nothing to protect you?

These are the situations our clients have faced. They have traveled hundreds of miles to the United States to save their families’ lives. And they have done so legally, seeking asylum through our nation’s immigration courts.

Last week, Attorney General Jeff Sessions called these families liars. He bemoaned the role of “dirty immigration lawyers” and described the U.S. asylum system as an “easy ticket” to entry.

Nothing could be further from the truth. When these families arrive in the United States they are held in private prisons. Young children and their mothers live in cells with strangers. Fathers and children over 18 are detained on their own. Few receive adequate medical care, and any legal help they obtain is largely provided by overworked nonprofit agency staff.

Despite these conditions, the families persevere. Children celebrate their first birthdays and take their first steps in detention. Spouses write love letters from their respective cells.

And for families who secure their release from detention — after establishing a “credible fear” of return — they want nothing more than to comply with our laws to avoid family separation once more.

Sessions claimed the federal government found a credible fear in 88 percent of cases, and said that any system with such a high passage rate means the system is “inherently flawed.”

But this reasoning is false. Each year, more than 90 percent of medical students pass their board exams. They do not pass because they cheat, or because the exams are inherently flawed. They pass because they are self-selected, having excelled despite years of challenges and setbacks.

The same is true of asylum seekers. Few would be willing to endure family separation and the incarceration of their child unless the stakes were life and death. Those who make it through the credible fear process are self-selected, with genuine fear of return.

Unfortunately, a credible fear interview is just the first stage in seeking asylum. And the government does little to explain to asylum seekers what they must do next.

. . . .

Asylum seekers have every incentive to comply with our laws. If they cannot win their asylum cases, they must live in the shadows, with no pathway to citizenship and little guarantee of avoiding deportation back to the danger they fled. They simply cannot navigate our dense, complex, and at times contradictory, immigration system on their own.

Michelle Mendez is Training and Legal Support Senior Attorney and Defending Vulnerable Populations Project Manager of Catholic Legal Immigration Network Inc. Swapna Reddy is Director of the Asylum Seeker Advocacy Project at the Urban Justice Center, an Echoing Green Fellow and an Equal Justice Works Emerson Fellow.”

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Read the complete article at the link.

Folks like Michelle and Swapna are the “real American heroes” of our justice system, working tirelessly and for modest compensation to preserve the rights of vulnerable asylum seekers. We need more of them and less of Jeff “Gonzo Apocalypto” Sessions and his malicious and ignorant attacks on asylum seekers and their already-limited due process and statutory rights.

PWS

10-22-17

THOMAS B. EDSALL IN THE NYT: DEMOCRACY SOWING THE SEEDS FOR ITS OWN (AND OUR) DESTRUCTION!

https://www.nytimes.com/2017/10/19/opinion/democracy-populism-trump.html?em_pos=small&emc=edit_up_20171023&nl=upshot&nl_art=5&nlid=79213886&ref=headline&te=1

Edsall writes:

“Will President Trump’s assault on the norms underpinning constitutional democracy permanently alter American political life?

On a daily basis, Trump tests the willingness of the public to accept a president who lies as a matter of routine. So far, Trump has persuaded a large swath of America to swallow what he feeds them.

. . . .

As Sasha Polakow-Suransky, the author of “Go Back to Where You Came From: The Backlash Against Immigration and the Fate of Western Democracy,” warns in The New York Review of Books:

Liberal democracies are better equipped than authoritarian states to grapple with the inevitable conflicts that arise in diverse societies, including the threat of terrorist violence. But they also contain the seeds of their own destruction: if they fail to deal with these challenges and allow xenophobic populists to hijack the public debate, then the votes of frustrated and disaffected citizens will increasingly go to the anti-immigrant right, societies will become less open, nativist parties will grow more powerful, and racist rhetoric that promotes a narrow and exclusionary sense of national identity will be legitimized.

The threat to democracy posed by the current outbreak of populist nationalism has become a matter of concern for both scholars and ordinary citizens. The central topic at a conference at Yale earlier this month was “How Do Democracies Fall Apart,” and the subject will be taken up again in November at a Stanford conference called “Global Populisms: A Threat to Democracy?”

I contacted several of the participants at the Yale gathering and was struck by their anxiety over the future prospects of democratic governance.

One of the most insightful was Adam Przeworski, a political scientist at N.Y.U., who has written, but not yet published, his own analysis of current events under the title “What’s Happening.”

First and foremost, Przeworski stresses,

there is nothing “undemocratic” about the electoral victory of Donald Trump or the rise of anti-establishment parties in Europe.

These parties and candidates, he points out:

Do not advocate replacing elections by some other way of selecting rulers. They are ugly — most people view racism and xenophobia as ugly — but these parties do campaign under the slogan of returning to ‘the people’ the power usurped by elites, which they see as strengthening democracy. In the words of a Trump advertisement, “Our movement is about replacing a failed and corrupt political establishment with a new government controlled by you, the American people.”

In support of Przeworski’s argument, it is clear that the success of the Trump campaign in winning the Republican nomination was the result of a classic democratic insurgency: the Republican electorate’s rejection of its party’s establishment.

The danger in the United States, in Przeworski’s view, is the possibility that the Trump administration will use the power of the presidency to undermine the procedures and institutions essential to the operation of democracy:

That the incumbent administration would intimidate hostile media and create a propaganda machine of its own, that it would politicize the security agencies, that it would harass political opponents, that it would use state power to reward sympathetic private firms, that it would selectively enforce laws, that it would provoke foreign conflicts to monger fear, that it would rig elections.

Przeworski believes that

such a scenario would not be unprecedented. The United States has a long history of waves of political repression: the “Red Scare” of 1917-20, the internment of Japanese citizens during World War II, the McCarthy period, the Nixon presidency.

Along similar lines, Anna Grzymala-Busse, a political scientist at Stanford, replied by email to my inquiry:

My big worry is not simply that formal institutions have been eroded, but that the informal norms that underpin them are even more important and even more fragile. Norms of transparency, conflict of interest, civil discourse, respect for the opposition and freedom of the press, and equal treatment of citizens are all consistently undermined, and without these the formal institutions become brittle.

Trump, in Grzymala-Busse’s assessment, “articulates a classic populist message that we see in Europe: the elite establishment is a collusive cartel uninterested in the problems of ‘the people,’” and, she continued, he has begun to follow the path of European populist leaders:

Much of Trump’s language and actions are also familiar: there is a standard authoritarian populist template, developed in Hungary and faithfully followed in Poland and in Turkey: first, go after the courts, then the media, then the civil society, churches, universities.

The attacks on the courts, media and universities

are not simply the ravings of a lunatic, but an established strategy for undermining democratic oversight and discrediting the opposition.

. . . .

Paul Waldman, writing in The Washington Post on Oct, 17, summed up Trump’s approach to veracity and to reality itself:

Trump takes his own particular combination of ignorance, bluster and malice, and sets it off like a nuclear bomb of misinformation. The fallout spreads throughout the country, and no volume of corrections and fact checks can stop it. It wasn’t even part of a thought-out strategy, just a loathsome impulse that found its way out of the president’s mouth to spread far and wide.

Trump’s recklessness is disturbing enough on its own. But what makes it especially threatening is that much of the public — well beyond the 40 percent of the electorate that has shown itself to be unshakable in its devotion to the president — seems to be slowly accommodating itself to its daily dose of the Trump reality show, accepting the rhetorical violence that Trump inflicts on basic standards of truth as the new normal.”

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Read Edsall’s full, much longer, article at the link.

An immigration policy based on xenophobia, racism, and White Nationalism, rather than on any rational, generally accepted socio-economic analysis, is at the heart of the Trump–Bannon-Sessions-Miller attack on America’s democratic institutions. As I said earlier today, “The Trump Administration, and its ‘fellow travelers’ among GOP politicos and voters, is the biggest threat to our national security and the future of American Democracy.”

PWS

10-22-17

WashPost LEAD EDITORIAL BLASTS SESSIONS’S ATTACK ON INDEPENDENCE OF U.S. IMMIGRATION JUDGES — Time For Congressional Action To Preserve Due Process!

https://www.washingtonpost.com/opinions/sessionss-plan-for-immigration-courts-would-undermine-their-integrity/2017/10/22/ce000df6-b2aa-11e7-9e58-e6288544af98_story.html?utm_term=.2ee43b5a7979

“By Editorial Board October 22 at 6:39 PM

ATTORNEY GENERAL Jeff Sessions decried the state of the immigration courts in remarks Oct. 12 before the Justice Department’s Executive Office for Immigration Review, lamenting “rampant abuse and fraud” in asylum applications. As part of Mr. Sessions’s push for an overhaul of the immigration system, the department also plans to begin evaluating immigration judges on the basis of how many cases they resolve. This proposal would do little to fix the United States’ backlogged immigration courts and much to undermine their integrity.

The Trump administration hinted at the plan in a wish list of immigration policies, alongside commitments to constructing President Trump’s promised border wall and withholding federal grants from so-called sanctuary cities. According to reporting by The Post, government documents show that the Justice Department “intends to implement numeric performance standards to evaluate Judge performance.” Such a metric would probably involve assessing judges based on how many cases they complete or how quickly they decide them — a plan that the National Association of Immigration Judges has called a “death knell for judicial independence.”

Unlike other federal judges, immigration judges are technically Justice Department employees. Currently, the collective bargaining agreement between Justice and the judges’ association forbids evaluating judges based on quotas. But the association says the Executive Office of Immigration Review is working now to remove that language from the contract.”

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Read the complete editorial at the link.

Note the “progression” by the DOJ: From “performance evaluations would interfere with judicial independence,” to “performance evaluations won’t involve production quotas,” to “judges are just ‘oyster shuckers in robes!'”

Performance evaluations by the DOJ are just as inappropriate and unnecessary for U.S. Immigration Judges now as they were back in 1983 when EOIR was established. The only difference is the plan by Sessions and his politico cronies to co-opt the U.S. Immigration Courts and use them as an enforcement tool in his xenophobic crusade against immigrants, asylum seekers, due process, and the American justice system.

I actually was part of the NAIJ “negotiating team” that negotiated the current procedures and standards for judicial performance evaluations. We were assured over and over by “EOIR Management” that “case quotas” were not part of the plan and that “management recognized” the need for decisional independence in the Immigration Judge corps.

PWS

10-23-17

MIMI SWARTZ IN THE NY TIMES: Anti-Latino Racism Drives Texas To Pull Up The Welcome Mat For Some Of Its Most Productive Residents!

https://www.nytimes.com/2017/10/20/opinion/texas-immigration-policy.html

Swartz writes:

“A decline in emergency room visits and calls to the police isn’t good news; people are just afraid to ask for help. A domestic abuser will threaten to call Immigration and Customs Enforcement if his spouse threatens to call the cops. A social worker at Las Americas, a public high school for immigrants in Houston, told me despair has set in. Instead of helping families cope with living in the nation’s fourth-largest city, she helps them plan for “when you are deported how can you stay alive the longest.” The students tell her: “Nobody wants me. I have no home.”

They are not wrong; the point of the federal and state legislation is to make Texas so uncomfortable for the undocumented that they move on. I suppose this makes sense if, say, you are constantly faced with competition from the far right, which every Republican, including Gov. Greg Abbott, is. Or if you have seen the growing Latino majority in Texas and know that it isn’t securely nestled in the Republican fold.

But it doesn’t make sense if you are looking at a state whose work force was shrinking even before the devastation of Hurricane Harvey. The people who came to rebuild New Orleans after Hurricane Katrina aren’t feeling the love here. Why should they?

“There are 47 other states that would love to see Texans fall on their butts,” Stan Marek, who has been in construction for years here, told me. Unless we have fair and sane immigration reform, like the “ID and Tax” plan many business leaders here support because it offers fair wages and work-visa status, our immigrants will vote with their feet, and businesses will follow.

That’s the price for trading a welcome mat for an ankle bracelet.

Mimi Swartz, an executive editor at Texas Monthly, is a contributing opinion writer.”

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Get the full story at the link.

A microcosm of the bias-driven stupidity of the whole Trump-GOP Restrictionist “gonzo” immigration enforcement program. What would really be fitting is if the loss of immigrant population and the businesses that depend on them eventually cost Texas some of those extra Congressional seats that they swiped from the Northeast as a result of undocumented residents and then proceeded to gerrymander to “lock out” Latinos from getting their “fair share of the pie.” Not to mention that the anti-Latino bias in the Texas GOP is in derogation of Supreme Court precedent, which holds that even those state residents without legal status or otherwise ineligible to vote, are entitled to have their interests represented by their legislators (hence the rationale for allowing extra representatives for undocumented population). “Fat chance” in Texas! The Texas GOP routinely ignores the interests its Latino U.S. citizens as well as its Latino non-citizen residents.

PWS

10-22-17

THE TRUMP ADMINISTRATION HAS LOTS OF BAD IDEAS ON IMMIGRATION — STRIPPING HAITIANS AND CENTRAL AMERICANS OF TPS STATUS IS CERTAINLY ONE OF THE WORST!

https://www.washingtonpost.com/world/national-security/tens-of-thousands-of-haitian-central-american-immigrants-could-lose-protected-status/2017/10/20/ceae3582-b5bd-11e7-99c6-46bdf7f6f8ba_story.html?utm_term=.65aa6a9f8ec8

Nick Miroff reports for the Washington Post:

“A form of legal immigration status will expire soon for 300,000 Haitians and Central Americans residing legally in the United States, some for nearly two decades, but the Trump administration has given little indication it plans to renew the benefit.

The immigrants have been allowed to live and work in the United States under a program called Temporary Protected Status (TPS) that shields some migrants from deportation if their nations are stricken by natural disasters, civil wars or other calamities.

Permission to stay must be periodically renewed by the Department of Homeland Security, and in the coming weeks, the agency will decide the fate of about 195,000 Salvadorans, 57,000 Hondurans, 50,000 Haitians and 2,550 Nicaraguans. Once the protections lapse, those immigrantswould be subject to deportation.

Their predicament is not as well known as the “Dreamers” who have been allowed to stay under the Deferred Action for Childhood Arrivals (DACA), the program that Trump is canceling. But an end to TPS protections could have wide-ranging consequences, especially in cities such as Los Angeles, Miami, Houston and Washington, where many of the beneficiaries and their U.S.-born children reside.

Democratic lawmakers and advocacy groups are urging the administration to extend the TPS protections, warning that the humanitarian and economic costs of expelling so many long-term U.S. residents would be steep.

Moreover, they say, the countries remain crippled by violence, disease and poverty, and the abrupt loss of the cash remittance payments the immigrants send from the United States would deal a heavy blow to those nations’ feeble economies.

. . . .

But like the DACA debate, the TPS decision has become a proxy for a broader argument about immigration and the enforcement of U.S. laws. The Trump administration has been signaling it wants to break with its predecessors and appears to want to make a statement, said Doris Meissner, the top immigration official under the Clinton administration,

“The deeper point is they don’t want people here from other countries for humanitarian reasons,” said Meissner, now a senior fellow at the Migration Policy Institute in Washington. “They don’t see these various elements of immigration policy as particularly positive for the U.S., or as a broader expression of our values and image in the world.”

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Read the complete article at the link.

Sending folks who are living here legally back to countries in turmoil is a terrible idea, from a humanitarian and a practical standpoint. What would make sense is to offer them some type of legal status. As I’ve pointed out before, even if TPS is revoked, few of these folks are going anywhere soon. With more than 630,000 pending cases in U.S. Immigration Court and the Administration pledged to mindlessly throw many more into the morass, few current TPS holders would be likely to get merits hearings before the end of Trump’s current term.

This is an Administration largely devoid of humanitarian instincts and commitments. Not so much common sense and practicality either.

PWS

10-22-17

TRAC DATA: IMMIGRATION COURTS DISCRIMINATE AGAINST DETAINED INDIVIDUALS AND MEXICAN NATIONALS IN PROCEDING WITHOUT COUNSEL!

http://immigrationimpact.com/2017/10/20/mexican-detained-disadvantaged-immigration-court/

Katie Shepherd reports for Immigration Impact:

“Immigrants facing deportation fare far better if they have a competent attorney representing them. For example, studies show that for asylum seekers, representation generally doubles the likelihood of being granted asylum.

For many, the ability to secure competent representation in immigration court is truly a matter of life and death. Yet fewer than 30 percent of detained individuals and only two thirds of non-detained individuals are represented in their removal case.

Meanwhile, the government is represented by an attorney in every single case.

While immigrants have a right to counsel in deportation proceedings if they can afford one, they do not have a right to counsel at the government’s expense.

New data released this week by the Transactional Records Access Clearinghouse (TRAC) confirms that a noncitizen’s ability to obtain a lawyer—and the opportunity to meaningfully defend him or herself against deportation—is determined primarily by nationality and whether or not he or she is detained.

The data analysis reflects what detained immigrants, their family members, and the very small number of attorneys who do detained work already know too well—detained immigrants who attempt to retain an attorney face substantial obstacles.

There are myriad reasons that detained immigrants cannot obtain representation.

Because they are detained, they are unable to travel to meet with an attorney in person and must rely on telephones in the facility to call potential attorneys. Phone calls can be prohibitively expensive and phones are often not easily accessible.

Attorney visitation rules vary by facility—many of which are located in rural areas, hours from the attorney’s office. Further, many detained immigrants are simply unable to afford a competent attorney.

. . .

The TRAC data also shows that Mexican immigrants are disproportionately disadvantaged in immigration court. They have the highest detention rate (78 percent), yet the lowest representation rate of all nationalities—only 33 percent according to the report.

More than anything, the recent TRAC numbers emphasize the dire need for increased access to counsel for all immigrants facing deportation, particularly those who are detained.”

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Read the complete article at the link.

The policies being followed by Sessions and the DHS — which encourage more detention in out of the way locations — are specifically designed to diminish representation, increase removals, and deny due process to the most vulnerable among us.

PWS

10-22-17

DRAMA CONTINUES FOR PREGNANT TEEN AS APPEALS COURT LOOKS TO “BROKER DEAL” WITHOUT DECIDING ANYTHING!

http://www.slate.com/blogs/the_slatest/2017/10/20/d_c_circuit_s_dubious_compromise_won_t_guarantee_undocumented_minor_s_abortion.html

Mark Joseph Stern reports for Slate:

“On Friday afternoon, the U.S. Court of Appeals for the District of Columbia Circuit granted an undocumented minor in federal custody conditional access to abortion—within the next few weeks. The decision marks a compromise by two conservative judges keen to preserve their anti-abortion bona fides without transgressing Supreme Court precedent, which clearly protects the minor’s right to terminate her pregnancy. This ruling will force the minor at the heart of this case, who is referred to as Jane Doe, to continue her unwanted pregnancy for at least 11 more days.

. . . .

Thus, it is quite possible that Kavanaugh’s handiwork will fail, and the government will be back in court in a few weeks arguing against Doe’s abortion rights. By that point, Doe will be approaching the point at which she cannot legally terminate her pregnancy in Texas. The government’s intervention has already prevented her from getting a first-trimester abortion, a simpler procedure than a second-trimester abortion. Now HHS has been handed a strategy to keep her pregnant for weeks longer. Kavanaugh may think he has played the conciliator in this case. But in reality, he’s given the government another chance to run down the clock on Doe’s abortion rights.”

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Read Stern’s complete article at the above link.

Looks to me like Judge Kavanaugh’s political instincts and desire to keep alive a possible nod for the Supremes trumps his responsibility to the Constitution, to litigants, and to the public to make tough decisions (which, after all, is what he actually gets paid for). Little wonder that trial judges (not as many places to “run and hide” at the “retail level”) often look at their “ivory tower” appellate colleagues with a jaundiced eye!

PWS

10-21-17

U.S. IMMIGRATON JUDGES: QUOTAS WILL SPELL THE END OF DUE PROCESS IN IMMIGRATION COURT!

HERE ARE TWO POSITION PAPERS PREPARED BY THE NATIONAL ASSOCIATION OF IMMIGRATION JUDGES (“NAIJ”) THE COLLECTIVE BARGAINING ORGANIZATION THAT REPRESENTS ALL U.S. IMMIGRATION JUDGES (FULL DISCLOSURE: I am a Retired Member of the NAIJ)

NAIJ HAS GRAVE CONCERNS REGARDING IMPLEMENTATION OF QUOTAS ON IMMIGRATION JUDGE PERFORMANCE REVIEWS, October 18, 2017

“The imposition of quotas or deadlines on judges can impede justice and due process. For example, a respondent must be given a “reasonable opportunity” to examine and present evidence. Section 240(b) (4) (B) of the Act. Given that most respondents do not speak English as their primary language and much evidence has to be obtained from other countries, imposing a time frame for completion of cases interferes with a judge’s ability to assure that a respondent’s rights are respected.

Not only will individuals who appear in removal proceedings potentially suffer adverse consequences, but also the public’s interest in a fair, impartial and transparent tribunal will be jeopardized by implementation of such standards.

THE SOLUTION

While it cannot be denied that additional resources are desperately needed immediately, resources alone cannot solve the persistent problems facing our Immigration Courts. The problems highlighted by the response to the recent “surge” underscores the need to remove the Immigration Court from the political sphere of a law enforcement agency and assure its judicial independence. Structural reform can no longer be put on the back burner. Since the 1981 Select Commission on Immigration, the idea of creating an Article I court, similar to the U.S. Tax Court, has been advanced.xvi In the intervening years, a strong consensus has formed supporting this structural change.xvii For years experts debated the wisdom of far-reaching restructuring of the Immigration Court system. Now “[m]ost immigration judges and attorneys agree the long term solution to the problem is to restructure the immigration court

system….” xviii

The time has come to undertake structural reform of the Immigration Courts. It is apparent that until far-reaching changes are made, the problems which have plagued our tribunals for decades will persist. For years NAIJ has advocated establishment of an Article I court. We cannot expect a different outcome unless we change our approach to the persistent problems facing our court system. Acting now will be cost effective and will improve the speed, efficiency and fairness of the process we afford to the public we serve. Our tribunals are often the only face of the United States justice system that these foreign born individuals experience, and it must properly reflect the principles upon which our country was founded. Action is needed now on this urgent priority for the Immigration Courts. It is time to stop the cycle of overlooking this important component of the immigration enforcement system – it will be a positive step for enforcement, due process and humanitarian treatment of all respondents in our proceedings.

6

NAIJ CONCERNS RE QUOTAS

AILA Doc. No 17102062.  (Posted 10/20/17)

We realize that immediate action is needed, and that a structural overhaul and creation of an Article I Court, while the best and only durable solution, may not be feasible right now. However, Congress can act easily and swiftly resolve this problem through a simple amendment to the civil service statute on performance reviews. . Recognizing that performance evaluations are antithetical to judicial independence, Congress exempted Administrative Law Judges (ALJs) from performance appraisals and ratings by including them in the list of occupations exempt from performance reviews in 5 U.S.C. § 4301(2)(D). This provision lists ALJs as one of eight categories (A through H) of employees who are excluded from the requirement of performance appraisals and ratings.xix To provide that same exemption to Immigration Judges, all that would be needed is an amendment to 5 U.S.C. § 4301(2) which would add a new paragraph (I) listing Immigration Judges in that list of exempt employees.

We urge you to take this important step to protect judicial independence at the Immigration Courts by enacting legislation as described above.

Thank you.

FOR ADDITIONAL INFORMATION, CONTACT

THE HONORABLE A. ASHLEY TABADDOR, PRESIDENT NATIONAL ASSOCIATION OF IMMIGRATION JUDGES C/o Immigration Court
606 S. Olive Street, 15th Floor

Los Angeles, CA 90014 (310)709-3580 ashleytabaddor@gmail.com www.naij-usa.org

Read the complete memo at this link:

NAIJ2

Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges

“15) If EOIR is successful in tying case completion quotas to judge performance evaluations, it could be the death knell for judicial independence in the Immigration Courts. Judges can face potential termination for good faith legal decisions of which their supervisors do not approve.

16) In addition, Circuit Courts will be severely adversely impacted and we will simply be repeating history which has proven to be disastrous. One need only remember the lasting impact of Attorney General Ashcroft’s “streamlining” initiative at the Board of Immigration Appeals.

17) The United States Government Accountability Office issued its report entitled “IMMIGRATION COURTS-Actions Needed to Reduce Case Backlog and Address Long-Standing Management and Operational Challenges Report to Congressional Requesters” in June 2017, GAO-17-438, (GAO Report). This GAO Report contains a section entitled, “Comprehensive Performance Assessment Could Help EOIR Identify Effective Management Approaches to Address the Case Backlog;” however, nowhere is the suggestion made that numerical or time based criteria be added to performance evaluations for immigration judges. AILA Doc. No 17102061. (Posted 10/20/17)

18) There is no reason for the agency to have production and quantity based measures tied to judge performance reviews. The current court backlog cannot be attributed to a lack of Immigration Judge productivity. In fact, the GAO report shows that Immigration Judge related continuances have decreased (down 2 percent) in the last ten years. GAO Report at 124. The same report shows that continuances due to “operational factors” and details of Immigration Judges were up 149% and 112%, respectively. GAO Report at 131, 133. These continuances, where Judges were forced to reset cases that were near completion in order to address cases that were priorities of various administrations, have a much greater impact on case completion rates. 19) The imposition of quotas or deadlines on judges can impede justice and due process. For example, a respondent must be given a “reasonable opportunity” to examine and present evidence. Section 240(b) (4) (B) of the Act. Given that most respondents do not speak English as their primary language and much evidence has to be obtained from other countries, imposing a time frame for completion of cases interferes with a judge’s ability to assure that a respondent’s rights are respected.”

Read this entire memorandum at the following link:

NAIJ1

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Folks, Due Process is “on the run” at the U.S. Immigration Courts. If Congress doesn’t take at least some corrective action to protect quasi-judicial independence, our U.S. Immigration Courts will no longer be able to provide fair and impartial adjudication in accordance with Constitutional requirements. Today, the statutory and Constitutional rights of immigrants are under attack. Tomorrow it could be YOUR Constitutional rights. Who is going to speak up for YOUR RIGHTS if YOU are indifferent to the rights of others?

PWS

10-21-17

GOING GONZO IN TEXAS: Sessions “Doubles Down” On Slurs, False Narrative, & Innuendo Against Immigrants!

DOJ PRESS RELEASE:

“Attorney General Jeff Sessions Delivers Remarks About Carrying Out the President’s Immigration Priorities

Austin, TX

Friday, October 20, 2017

Remarks as prepared for delivery

Thank you for that kind introduction Richard. You’ve been a crime fighter here in this office for over three decades. Thank you for your dedicated service.

I would also like to thank and recognize our selfless and dedicated law enforcement here who put their lives on the line every and who run toward danger for the benefit of us all.

On behalf of President Trump, it is an honor to be here with you all – with the selfless and courageous men and women of law enforcement. President Trump and this Department of Justice understand your mission. The President has directed us to support that mission and support you. And we are committed to doing that.

Donald Trump ran for office as a law-and-order candidate and now he is governing as a law-and-order President. Under his strong leadership, we are finally getting serious about crime and the rule of law. And we are finally getting serious about illegal immigration.

We have the most generous immigration laws in the world. And for decades we have always pulled back from effective enforcement.

But earlier this month, the President released his principles for fixing our immigration system. Let me just say: they are a breath of fresh air. For decades, the American people have been begging and pleading with our elected officials for an immigration system that is lawful and that serves our national interest. Now we have a President who leads.

The principles he laid out deal with every aspect of our immigration problems—everything from border security to interior enforcement to closing loopholes in our asylum program. It’s the kind of bold agenda that the American people have been waiting for. It is reasonable and it will work. And this is a critical point: this is not hopeless; it can be done!

First of all, the President is determined to finally build a wall at our Southern border. This will make it harder for illegal aliens to break into this country. For many, they will decide not to come illegally. But more importantly, the wall will send a message to the world that we enforce our laws. It sends a message: finally we mean it.

And to better do that, President Trump has proposed hiring more than 10,000 new ICE officers, 1,000 new ICE attorneys, 300 new prosecutors, and nearly 400 new immigration judges. He has proposed switching to a more merit-based system of immigration like they have in Canada. That means welcoming the best and the brightest but turning away gang members, fraudsters, drunk drivers, and child abusers. This merit-based system would better serve our national interest because it would benefit the American people. That’s what this agenda is all about. We can’t accept everybody—only people who will flourish.

And that’s why the President supports mandating the use of the E-verify system, which is an internet based system that allows employers to verify that those they hire are authorized to work in the United States.

Under the President’s plan, it would be illegal to discriminate against American workers in favor of foreign workers.

We need this agenda. And Texans know that better than just about anybody.

I’m sure everyone in this room remembers Houston police officer Kevin Will. An illegal alien who had been deported twice drove drunk and hit Officer Will at about 90 miles per hour. Officer Will’s last words were telling someone to get out of the way of the car. He died protecting innocent people. And when he died, his wife was pregnant with their first child.

The open-borders lobby talks a lot about kids—those who are here unlawfully. But open-borders policies aren’t even in their interest either. After the previous administration announced the Deferred Action for Childhood Arrivals—or DACA—policy in 2012, the number of unaccompanied children coming here nearly doubled in one year. The next year, it doubled again.

I doubt that was a coincidence. DACA encouraged potentially tens of thousands of vulnerable children to make the dangerous journey North. That had terrible humanitarian consequences—and Texans know that firsthand.

Earlier this month, Border Patrol arrested two young men who had benefitted from DACA, for allegedly attempting to smuggle illegal aliens into Laredo.

Just a few days later, another beneficiary of DACA was charged with the murder of an 18-year old girl. In total, 2,000 DACA recipients have had their status withdrawn.

The President wants to stop the incentives for vulnerable children to come here illegally. He began to do that last month when he ended the DACA policy.

The President has also laid out a plan to close loopholes that are being exploited in our asylum program.

Under the previous Administration, the federal government began releasing illegal aliens who claimed to be too afraid to return home. Unsurprisingly, the number of these claims skyrocketed nearly 20-fold in eight years from 5,000 in 2009 to 94,000 now. And after their release, many of these people simply disappeared.

It’s too easy to defraud our system right now—and President Trump is going to fix that. The President’s plan to close the loopholes will stop the incentive for false asylum claims.

President Trump is also confronting the state and local jurisdictions that have undertaken to undo our immigration laws through so-called “sanctuary policies.”

Such policies undermine the moral authority of law and undermine the safety of the jurisdictions that adopt them. Police are forced to release criminal aliens back into the community—no matter what their crimes. Think about that: Police may be forced to release pedophiles, rapists, murderers, drug dealers, and arsonists back into the communities where they had no right to be in the first place. They should—according to law and common sense—be processed and deported.

These policies hinder the work of federal law enforcement; they’re contrary to the rule of law, and they have serious consequences for the law-abiding Texans.

Earlier this month, an illegal alien in Kansas pled guilty to reckless driving that killed a law enforcement officer conducting a traffic stop. He tested for a blood alcohol content twice the legal limit. The officer who was killed—Deputy Brandon Collins—had two young daughters.

The illegal alien who killed Deputy Collins had already been arrested twice for driving-related offenses—including a previous drunk driving conviction. Clearly, he had been in police custody, but no one turned him over to ICE.

The politicians behind “sanctuary” policies say that forcing police officers to release criminal aliens back onto the streets will somehow increase community trust.

But that does not make sense to me. Would releasing someone who had been arrested numerous times into your community give you more confidence in law enforcement?

Would learning that a local district attorney actually charges illegal aliens with less serious crimes than Americans to evade federal deportation make you believe they are trying to make your neighborhood safer? Would forcing federal officers to track down criminal aliens on your street instead of safely in the jails make you believe we value your community?

We all know law enforcement is not the problem. You risk your lives each day in service of the law and the people you protect. Cooperation, mutual respect is critical. Disrespecting our law enforcement officers in their lawful duties in unacceptable.

The problem is the policies that tie your hands.

Yet, rather than reconsider their policies, sanctuary jurisdictions feign outrage when they lose federal funds as a direct result of actions designed to nullify plain federal law. Some have even decided to go to court so that they can keep receiving taxpayer-funded grants while continuing to impede federal immigration enforcement. We intent to fight this resolutely.

We cannot continue giving federal grants to cities that actively undermine the safety of federal law officers and intentionally frustrate efforts to reduce crime in their own cities.

These jurisdictions that knowingly, willfully, and purposefully release criminal aliens back into their communities are sacrificing the lives and safety of American citizens in the pursuit of an extreme open borders policy. It’s extreme and open borders because if a jurisdiction won’t deport someone who enters illegally and then commits another crime then who will they deport.

This isn’t just a bad policy. It’s a direct challenge to the laws of the United States. It places the lives of our fine law enforcement officers at risk and I cannot and will not accept this increased risk because certain politicians want to make a statement.

Our duty is to protect public safety and protect taxpayer dollars and I plan to fulfill those duties.

The vast majority of Americans oppose “sanctuary” policies. According to one poll, 80 percent of Americans believe that cities should turn over criminal aliens to immigration officials.

The American people are not asking too much, and neither is the Department of Justice. Federal law enforcement wants to work with our partners at the state and local level. We want to keep our citizens safe.

Fortunately, in President Trump, we have strong leadership that is making a difference.

Since he took office, border crossings have plummeted by nearly a quarter—even as our economy has been booming. This past fiscal year, Border Patrol conducted half of the number of arrests as the previous one, and one-fifth of the number of arrests they made a decade ago.

Now, someone might say, that decline is because they’re just not catching people. But that’s just not true.

Border Patrol’s tactics and their technology have been refined and are only getting better. The Department of Homeland Security believes that they are catching a greater share of illegal aliens than ever—more than four out of five.

So the data show clearly: President Trump’s leadership is making a difference. Would-be lawbreakers know that we are restoring the rule of law and enforcing our immigration laws again.

And under President Trump’s immigration principles, the Departments of Justice and Homeland Security will stop rewarding sanctuary cities with taxpayer dollars.

If these cities want to receive law enforcement grants, then they should stop impeding federal law enforcement.

In Texas, you have taken a leadership role on this issue.

I want to commend the state legislature for passing Senate Bill Four with strong majorities in both chambers, and thank Governor Abbott for signing it into law.

I am well aware that this law has its critics. And I am more than familiar with their line of criticism. But the facts of the case are clearly on Texas’ side.

Earlier this month, the Department of Justice filed an amicus brief in this case. We believe that the outcome is important not just to the state of Texas, but to the national interest. The integrity of our immigration laws is not a local issue—it is a national issue.

I am confident that Texas will prevail in court. But I would urge every so-called “sanctuary” jurisdiction to reconsider their policies. So-called “sanctuary” policies risk the safety of good law enforcement officers and the safety of the neighborhoods that need their protection the most. There are lives and livelihoods at stake.

If we work together, we can make our country safer for all our residents—native born and lawful immigrant alike. Working together requires ending “sanctuary” policies.

The Department of Justice is determined to reduce crime. We will not concede a single block or street corner in the United States to lawlessness. Nor will we tolerate the loss of innocent life because a handful of jurisdictions believe they are above the law.

And so to all the law enforcement here—federal, state, and local—thank you for all that you do. President Trump is grateful; I am grateful, and the entire Department of Justice is grateful for your service. We have your back and you have our thanks.

Thank you, and God bless you.”

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

Sessions is proposing to make the U.S. Immigration Court the largest, and certainly most “out of control” Federal Judiciary. And he also wants 10,000 more agents for the Internal Security Police (a/k/a/ DHS) that also runs the American Gulag. Sure sounds like a prescription for turning America into something like “Putinia.” That’s the White Nationalist blueprint and why they are so cozy with repressive, non-democratic rulers like Putin.

I’m exhausted for the week. Going to let someone else come up with all the numbers and studies showing how bogus Sessions’s “Alien Crime Wave” and attempt to falsely link DACA to an increase in kids fleeing gang violence to save their lives.

REALITY CHECK: At some point this grandiose plan for endless personnel and resources devoted largely to keeping needed workers and legitimate refugees out of the U.S. will have to be approved by Congress. And, it promises to be a “Budget Buster.”

PWS

10-20-17

“RACIST JOE’S” CONVICTION STANDS, AT LEAST FOR NOW — U.S. Judge says Trump Can Wipe Out The Consequences But Can’t Erase The Dirty Deeds!

https://www.huffingtonpost.com/entry/joe-arpaio-criminal-conviction-not-erased_us_59e9d4b3e4b0df10767c4e07?ncid=inblnkushpmg00000009

Willa Frej reports for HuffPost:

“A judge rebuffed former Maricopa County Sheriff Joe Arpaio’s request to expunge his criminal conviction for unlawfully detaining individuals based on suspicions of their legal status after President Donald Trump pardoned him in August.

U.S. District Court Judge Susan Bolton ruled Thursday that the pardon wasn’t a reason to erase Arpaio’s guilty verdict.

“The power to pardon is an executive prerogative of mercy, not of judicial record-keeping,” she wrote. “The Court found Defendant guilty of criminal contempt. The President issued the pardon. Defendant accepted. The pardon undoubtedly spared defendant from any punishment that might otherwise have been imposed. It did not, however, revise the historical facts of this case.”

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

Read the rest of the story at the above link.

You can lie to your heart’s content, but you can’t rewrite history, as Joe and the rest of his racist/White Nationalist cronies in the Trump Administration are finding out.

PWS

10-20-17

THE HILL: N. Rappaport Believes That Expedited Removal Is the Key To Reducing The Immigration Court Backlog

http://thehill.com/opinion/immigration/356211-trumps-fast-tracked-deportations-may-be-only-practical-solution-to

Nolan writes:

“An alien who seeks admission to the United States without valid documents can be sent home without a hearing, and, this does not apply just to aliens at the border. An undocumented alien may be viewed as “seeking admission” even if he has been living here for more than a year.

But for immigration purposes, words mean whatever the Immigration and Nationality Act (INA) says they mean.

Section 235(a)(1) of the INA says that an alien who is in the United States but has not been “admitted” shall be viewed as an applicant for admission for purposes of this Act. And section 101(a)(13) of the INA says that the terms “admission” and “admitted” mean a lawful entry into the United States after an inspection and authorization by an immigration officer.

This makes it possible for DHS to use expedited removal proceedings to deport undocumented aliens who already are in the United States without giving them hearings before an immigration judge, which is necessary now because the immigration court is experiencing a backlog crisis.As of the end of August 2017, the immigrant court’s backlog was 632,261 cases, and the immigration court has only 330 immigration judges. The backlog is getting larger every year because the judges are not even able to keep up with the new cases they receive each year.

. . . .

In expedited removal proceedings, which are conducted by immigration officers, an alien who lacks proper documentation or has committed fraud or a willful misrepresentation to enter the country, can be deported without a hearing before an immigration judge, unless he has a credible fear of persecution.

Previous administrations limited these proceedings to aliens at the border and aliens who had entered without inspection but were apprehended no more than 100 miles from the border after spending less than 14 days in the country.

Trump opted to use expedited removal proceedings to the full extent authorized by law. In his Executive Order, “Border Security and Immigration Enforcement Improvements,” he orders the DHS Secretary to use the proceedings for the aliens designated in section 235(b)(1)(A)(iii)(II)of the INA, i.e., aliens who are in the United States but were not lawfully admitted and cannot establish that they have been here continuously for two years.

If an alien wants an asylum hearing before an immigration judge, he has to establish to the satisfaction of an asylum officer that he has a credible fear of persecution. If the asylum officer is not persuaded, the alien can request an abbreviated review by an immigration judge, which usually is held within 24 hours.

Immigration officers should not be making unreviewable decisions about whether to deport someone who has lived in the United States for up to two years. I would prefer replacing the immigration officers with immigration judges for proceedings involving aliens who are already in the United States.

Expedited removal proceedings are not used for unaccompanied alien children.

The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVRPA) exempts certain unaccompanied alien children (UAC) from expedited removal proceedings.

Trump has asked Congress to amend the TVRPA to restrict the unaccompanied alien children protections. In the meantime, steps are being taken to deter parents from bringing their children here illegally.

ICE will be putting the parents of UACs in removal proceedings if they are undocumented aliens too, and if a smuggler was paid, they might be prosecuted for human trafficking.

Immigrant advocates still have time to work with Trump on immigration reform legislation, but once Trump has implemented an expanded expedited removal proceedings program, he is not going to be inclined to stop it. And it could start soon. He recently issued a Request for Information to identify multiple possible detention sites for holding criminal aliens and other immigration violators.”

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

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

I have no doubt that the Trump Administration will attempt to “max out’ the use of expedited removal. Interestingly, however, although the Executive Order referenced by Nolan was issued at the beginning of the Administration, the regulatory changes necessary to expand the use of expedited removal have not yet been published in the Federal Register. A change of this nature is likely to require full notice and comment, which will take some time. If the Administration tries to avoid the notice and comment process, that will be likely to give advocates a valid ground for challenging the revised regulation under the Administrative Procedures Act.

I also doubt that expedited removal can successfully address the current Immigration Court backlog, which is, after all, largely the result of incompetent management, poor enforcement choices, and “ADR” by politicos at the DOJ, including particularly in this Administration. Without removing the political influence over the Immigration Courts and placing them in an independent structure that can be professionally administered in an unbiased manner, no “docket reform” is likely to succeed..

Second, nearly all of the 10-11 million individuals currently in the U.S. without documentation have been here more than two years and can prove it. Indeed, the vast majority of the 630,000+ cases pending in Immigration Court have probably been on the docket for more than two years!

Third, like Nolan, I believe that “Immigration officers should not be making unreviewable decisions about whether to deport someone who has lived in the United States for up to two years.” Individuals living in the United States are entitled to constitutional due process under Supreme Court decisions. A fair hearing before an impartial adjudicator normally is a minimum requirement for due process. A DHS Immigration Officer is not an impartial judicial or quasi-judicial adjudicator.

The situations in which the Federal Courts have permitted DHS Immigration Officers to enter final removal orders against individuals who are “in the United States” (as opposed to at the border, in fact or “functionally”) are fairly limited. One is the situation of an individual who was never admitted as a Lawful Permanent Resident and who committed an aggravated felony. This doesn’t apply to most individuals in the U.S. without documentation.

As Nolan points out, the Federal Courts have also approved “expedited removal” under the current regulations which limit applicability to those who have been here fewer than 14 days and are apprehended within 100 miles of the border — in other words, those who have very minimal connection with the U.S. and have not established any type of “de facto” residence here. In making those limited (but still probably wrong from a constitutional standpoint) decisions some courts have indicated that they would have reservations about reaching the same result in the case of someone who had actually been here for a considerable period of time and had established a residence in the United States.

For example, in Castro v. DHS, 835 F.3d 433 (3rd Cir. 2016), cert. denied, a case upholding expedited removal under the current regulations, the court states:

Of course, even though our construction of § 1252 means that courts in the future will almost certainly lack statutory jurisdiction to review claims that the government has committed even more egregious violations of the expedited removal statute than those alleged by Petitioners, this does not necessarily mean that all aliens wishing to raise such claims will be without a remedy. For instance, consider the case of an alien who has been living continuously for several years in the United States before being ordered removed under § 1225(b)(1). Even though the statute would prevent him from seeking judicial review of a claim, say, that he was never granted a credible fear interview, under our analysis of the Suspension Clause below, the statute could very well be unconstitutional as applied to him (though we by no means undertake to so hold in this opinion). Suffice it to say, at least some of the arguably troubling implications of our reading of § 1252 may be tempered by the Constitution’s requirement that habeas review be available in some circumstances and for some people.

Here’s a link to the full Castro opinion and my previous blog on the decision:

http://wp.me/p8eeJm-IG

I predict that, as in other areas, by “pushing the envelope” on the expedited removal statute, the Trump Administration will eventually force the Federal Courts, including the Supreme Court, to find it unconstitutional at least in some applications.

The Administration would be smarter to go about Immigration Court docket reduction by limiting new enforcement actions to recent arrivals and those who have engaged in activities that endanger the public health and safety, similar to what the Obama Administration did. This should be combined with a realistic legalization proposal and return to a robust use of prosecutorial discretion (“PD”) that would remove many of the older, nonprioty cases from the docket.

Eliminating rights, “fudging” due process, and pretending like judicial and quasi-judicial resources are infinitely expandable will not solve the problem in the long run. It’s time for some “smart” immigration enforcement and action to reform the Immigration Courts into an independent court system. But, I’d ever accuse the Trump Administration of being “smart,” particularly in the area of immigration policy.

PWS

10-19-17

GONZO’S WORLD: DEHUMANIZING IMMIGRANTS BRINGS BACK DREDD SCOTT!

http://www.slate.com/articles/news_and_politics/jurisprudence/2017/10/the_justice_department_s_radical_new_anti_abortion_stance_echoes_dred_scott.html

Mark Joseph Stern and Perry Grossman report for Slate:

“JURISPRUDENCE
THE LAW, LAWYERS, AND THE COURT.OCT. 19 2017 6:32 PM
Trump’s Dred Scott
In a case about the abortion rights of undocumented minors, the Department of Justice evokes the worst Supreme Court decision of all time.

By Perry Grossman and Mark Joseph Stern
Jeff Sessions and Roger B. Taney
Attorney General Jeff Sessions, left, and Chief Justice Roger B. Taney
Saul Loeb/Getty Images and Library of Congress

Throughout his presidential campaign, Donald Trump maligned undocumented immigrants as violent criminals and sexual predators who deserved to be rounded up and deported. Once in office, Trump transformed this rhetoric into policy, implementing a nationwide crackdown on immigrant communities. Now, the president’s dehumanizing disparagement of undocumented people has now seeped into his administration’s legal positions. This week, the Department of Justice is arguing in court that undocumented, unaccompanied minors have no right to abortions—and that undocumented immigrants may have no constitutional rights at all. This argument does not only contravene Supreme Court precedent. It also draws upon an inhuman notion of constitutional liberty most notoriously espoused in Dred Scott v. Sandford.

The Justice Department’s radical new theory arose out of a disturbing case in Texas that revolves around a 17-year-old referred to as Jane Doe in court filings. Doe arrived in the United States several months ago, unaccompanied by her parents and lacking documentation. She was placed in a federally funded Texas shelter, at which point she learned she was pregnant. Doe requested an abortion, but under state law, minors cannot receive the procedure without either parental consent or judicial approval. So Doe obtained what’s known as a judicial bypass and asked permission to attend a state-mandated counseling session before undergoing the procedure.

Her shelter refused to allow her to attend that counseling session, citing federal regulations promulgated by the Office of Refugee Resettlement, a wing of the Department of Health and Human Services. In March, ORR announced that federally funded shelters could not take “any action that facilitates” abortion for unaccompanied minors, including “scheduling appointments, transportation, or other arrangement,” without “direction and approval” from Scott Lloyd, the agency’s director. A Trump appointee and longtime anti-abortion activist, Lloyd has refused to allow minors to access abortion services. Instead, he has directed shelters to take these women to “crisis pregnancy centers,” which “counsel” them not to get abortions. At least once, Lloyd himself called a pregnant minor to talk her out of terminating her pregnancy. If a minor still wants to get an abortion after navigating these obstacles, ORR instructs its shelters to block her from attending her appointment.

Doe’s shelter followed these guidelines, taking her to a crisis pregnancy center and calling her mother to tell her Doe was pregnant. But Doe persisted, and in October, her court-appointed attorneys filed suit along with the American Civil Liberties Union in a federal district court in Washington, where ORR is headquartered. Doe argues that ORR’s rules violate her constitutional rights by placing an undue burden on her access to abortion.

On Wednesday, U.S. District Judge Tanya Chutkan held a hearing in the case. While defending the government, Department of Justice attorney Scott Stewart strongly implied that undocumented women do not have a right to abortion. Here, Stewart was echoing an amicus brief filed by the Texas attorney general’s office, which proclaimed that “unlawfully present aliens” living in the United States have no constitutional right to abortion access. Chutkan then asked Stewart whether Doe has any constitutional rights; Stewart declined to make that “concession.”

Chutkan ruled against the government and issued a temporary restraining order guaranteeing Doe the ability to terminate her pregnancy. (She is currently 15 weeks pregnant, and abortion is illegal after 20 weeks in Texas.) The DOJ appealed to the U.S. Court of Appeals for the District of Columbia Circuit, which will hear arguments in the case on Friday morning. In its motion, the agency argued that the government’s “interest in promoting fetal life and childbirth over abortion” justified its refusal to let a minor go to an abortion clinic. It also claimed that, even if undocumented minors have a constitutional right to abortion care, the administration was not unduly burdening that right, because minors who want to terminate their pregnancies can leave the country. This argument is merely another way of stating that women like Doe have no right to an abortion in the United States.

By excluding undocumented immigrants from the protections of Planned Parenthood v. Casey, the Trump administration is essentially asserting that they do not qualify as “person[s]” under the Due Process Clauses of the Fifth and 14th Amendments. The Supreme Court has ruled that the liberty component of the Due Process Clause protects a woman’s right to terminate her pregnancy without a substantial obstacle. If arbitrary regulations that severely burden clinics qualify as such an unconstitutional obstacle, as the Supreme Court has held, then surely self-deportation does as well. Thus, the sole plausible interpretation of the DOJ’s posture is that the Due Process Clause does not protect undocumented women like Doe. Put simply, undocumented women are not people for constitutional purposes.

If the government can force Doe to carry her pregnancy to term, what can’t it do?
This theory parallels the Supreme Court’s most infamous ruling. Dred Scott was a black man born into slavery who moved with his “master” from a slave state to a free state. Upon his master’s death, Scott sued for his freedom. In 1857, Chief Justice Roger B. Taney—a virulent racist whose statue was removed from the grounds of the Maryland State House in August—wrote an opinion dismissing Scott’s suit. Taney held that black people were not “persons” based on the language of the Constitution and that Scott, as a black man, therefore had no right to sue in the federal courts. Black men, Taney wrote, were “so far inferior” to whites that they had “no rights which the white man was bound to respect.”

Following the Civil War, Dred Scott was overturned by the 13th and 14th Amendments. These amendments ensured that everyone born in the United States would be a citizen. They also granted all “person[s]”—not just citizens—due process and equal protection under the law. Trump has already raised the specter of Dred Scott through his call to end birthright citizenship, the constitutional command that lay at the heart of the Civil War amendments. Now his administration is invoking the decision again in its attempt to deprive undocumented immigrants of their personhood under the Constitution.

The government has rarely alleged that undocumented immigrants may be deprived of rights protected by the liberty component of due process, what’s also known as “substantive” due process. Its few attempts have been unsuccessful. In 2003, the Bush administration argued that substantive due process does not apply to immigrants who reside in the country illegally. The 6th U.S. Circuit Court of Appeals, sitting en banc, emphatically rejected this claim, explaining

If excludable aliens were not protected by even the substantive component of constitutional due process, as the government appears to argue, we do not see why the United States government could not torture or summarily execute them. … [W]e do not believe that our Constitution could permit persons living in the United States—whether they can be admitted for permanent residence or not—to be subjected to any government action without limit.
Perhaps recognizing the extremism of its argument, the Trump administration has left open the possibility that undocumented immigrants are entitled to some unspecified “minimal standards” of constitutional protection. But if those minimal standards don’t include the basic right to bodily autonomy, then the 6th Circuit’s query still stands. If the government can force Doe to carry her pregnancy to term against her will, what can’t it do? The administration’s attempt to exert complete control over Doe’s reproductive system is a straightforward deprivation of constitutional liberty that opens the door to equally egregious future abuses.

On Friday morning, the Justice Department will return to court once more to argue, in effect, that Jane Doe is not a “person” worthy of due process protections. It might as well cite Dred Scott for the proposition that the government may strip undocumented immigrants of their constitutionally protected liberty. The 14th Amendment was designed to end such capricious discrimination against individuals living in the United States. But to the Trump administration, immigrants like Doe aren’t even people—just possessions of the state, awaiting deportation.”

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Just when you think that Gonzo Apocalypto can’t sink any lower, he manages to achieve new depths!

Sen. Liz Warren was right!

PWS

10-19-17

AMERICAN GULAG! – NEW “SHORT” (14 Min.) FROM BRAVE NEW FILMS – “IMMIGRANT PRISONS” – TELLS SHOCKING STORIES OF SEXUAL ABUSE, DEHUMANIZATION, SLAVE LABOR, DENIAL OF MEDICAL CARE, AND DEATH IMPOSED ON CIVIL IMMIGRATION DETAINEES BY OUR GOVERNMENT! — Their Only “Crime” Is Asking America To Make Good On Our False Promise Of “Equal Justice For All!” — Jeff “Gonzo Apocalypto” Sessions & DHS Are Using This System To Destroy Due Process In U.S. Immigration Courts!

https://www.thenation.com/article/a-look-inside-our-abusive-immigrant-prisons/

HERE’S THE VIDEO:

https://www.youtube.com/watch?v=jjsVmKAXCBs#action=share

FROM THE NATION :

“A Look Inside Our Abusive Immigrant Prisons

Each year, the US government locks up roughly 440,000 immigrants in over 200 immigrant prisons.

By Robert Greenwald

TODAY 9:30 AM

Few Americans know about our nation’s system of immigrant detention centers. Each year, the US government locks up roughly 440,000 immigrants in over 200 immigrant prisons. These facilities have grown into a highly privatized, lucrative, and abusive industry that profits off the misery of immigrants awaiting deportation.

Here at Brave New Films, we’re doing everything we can to expose the abuses of the deportation-industrial complex. In our new film, Immigrant Prisons, we explore conditions inside the detention centers, exposing substandard medical care, widespread physical and sexual abuse, virtual slave-labor working conditions and more. These abuses happen behind closed doors with little to no oversight.

Our film, created in partnership with advocates for detainee rights, is shining a light on a particularly dark corner of the American justice system. Watch now and share with friends.

It’s important to remember that immigration detention is a civil form of confinement. “This is not criminal custody, this is not someone who’s been convicted of a crime,” says attorney James Fife of the Federal Defenders of San Diego. “This is just someone who’s being held for the government’s convenience so that the person’s available” for processing, said Fife.

Unlike with criminals who have been convicted of a crime, there’s no time limit on how long people can be held at immigration detention centers. It’s hard to believe, but immigrants can be locked up indefinitely without a criminal offense or bond hearing. In the film we highlight the case of a Kenyan immigrant, Sylvester, who spent nine years and four months in immigration detention. Another immigrant describes her time in detention as being “like a legal kidnapping.”

Immigrant detention centers are overseen by US Immigration and Customs Enforcement, or ICE, a division of the Department of Homeland Security. Since ICE was created in 2003, there have been 177 confirmed deaths in detention centers. Medical neglect is the greatest contributing factor.

In the film, we speak with Gerard, a former detainee who almost died during his 11 months at a California facility. He was denied medical care for two weeks as a severe infection spread in his body. The private-facility managers kept ignoring his requests until it was nearly too late. Such medical neglect contributed to nearly half of all deaths in immigrant prisons.

Christina Fialho, the executive director of CIVIC and a leading advocate for detainee rights, says that “denial of medical care at immigration-detention facilities is routine.” This substandard medical care is often accompanied by substandard food, unsanitary water, and generally unhygienic living conditions.

Fialho says that immigrant-detention centers are also plagued by abuse. “Guards with little to no training are kicking, hitting, sexually assaulting people in immigration detention,” she says. Each year thousands of complaints alleging sexual and physical abuse and substandard medical care are filed with authorities, but very few cases are ever investigated.

Adding insult to injury, detainees at for-profit detention centers are often coerced into working for virtually no money. The for-profit companies that run the facilities have all the wrong incentives and a captive workforce at their disposal. The food they provide detainees is frequently so inadequate that detainees feel they have no choice but to work for $1 a day to buy additional food from the commissary, often at inflated prices. Fialho doesn’t mince words about this practice: “Detention centers are starving people into working in order to then cut staff salaries.”

The two largest private detention-center operators, CCA and Geo Group, got started in the 1980s. In fact, CCA’s very first contract was for locking up immigrants. In the past 20 years, the two companies have made over $12 billion in profits, largely from immigrant detention.

Wrongful-death lawsuits and class-action lawsuits alleging forced labor have helped expose abuses at private immigrant prisons, but systemic reforms are needed. Stock in CCA and Geo Group slid after the Obama administration moved to end the use of private prisons by the federal government, but the stocks rocketed up after the 2016 election. President Trump, who received major contributions from the private-prison industry, reversed President Obama’s order on private prison use and has proposed a 25 percent increase in ICE’s budget.

Immigrant Prisons is our first film on the deportation industrial complex. In future films we’ll explore how private-prison companies promote policies and procedures that line their own pockets, and profile the individuals who are working to perpetuate our abusive immigration-enforcement system.

Unlike the private prison industry, we don’t have millions to spend on advertising and lobbying. But there is a powerful grassroots movement rising up in this country to take on abuses in our immigration system.

I hope you will join the movement and share Immigrant Prisons with your networks. You can also screen the film for free at schools, houses of worship, and community meetings for local media and elected officials through our Brave New Educators program. Together we can bring detained immigrants out from the darkness and provide them with the respect and dignity that we owe to all people.

We premiered the film last night in Santa Monica with our friends at The Young Turks. Cenk Uygur moderated a panel which included Pastor Noe who was recently released from an immigrant prison. If you or someone you know has a powerful story about immigrant prisons, please get in touch.

THE BIGGEST LOSER: US Judge In MD Also Slams Travel Ban 3.0 (Again)! No Matter What Ultimately Happens, Trump & Our Country Are The Big Losers From His Determination To Be Petty & Discriminatory!

https://www.washingtonpost.com/world/national-security/second-judge-rules-against-latest-travel-ban-saying-trumps-own-words-show-it-was-aimed-at-muslims/2017/10/18/5ecdaa44-b3ed-11e7-9e58-e6288544af98_story.html

Matt Zapotosky reports for the Washington Post:

“A federal judge in Maryland early Wednesday issued a second halt on the latest version of President Trump’s travel ban, asserting that the president’s own comments on the campaign trail and on Twitter convinced him that the directive was akin to an unconstitutional Muslim ban.

U.S. District Judge Theodore D. Chuang issued a somewhat less complete halt on the ban than his counterpart in Hawaii did a day earlier, blocking the administration from enforcing the directive only on those who lacked a “bona fide” relationship with a person or entity in the United States, such as family members or some type of professional or other engagement in the United States.

[Federal judge blocks Trump’s third travel ban]

But in some ways, Chuang’s ruling was more personally cutting to Trump, as he said the president’s own words cast his latest attempt to impose a travel blockade as the “inextricable re-animation of the twice-enjoined Muslim ban.”

Omar Jadwat, who directs of the ACLU’s Immigrants’ Rights Project and represented those suing in Maryland over the ban, said: “Like the two versions before it, President Trump’s latest travel ban is still a Muslim ban at its core. And like the two before it, this one is going down to defeat in the courts.”

The third iteration of Trump’s travel ban had been set to go fully into effect early Wednesday, barring various types of travelers from Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela. Even before Chuang’s ruling, though, a federal judge in Hawaii stopped it — at least temporarily — for all of the countries except North Korea and Venezuela.

That judge, Derrick K. Watson, blocked the administration from enforcing the measure on anyone from the six countries, not just those with a “bona fide” U.S. tie. But his ruling did not address whether Trump’s intent in imposing the directive was to discriminate against Muslims. He said the president had merely exceeded the authority Congress had given him in immigration law.

The Justice Department already had vowed to appeal Watson’s ruling, which the White House said “undercuts the President’s efforts to keep the American people safe and enforce minimum security standards for entry into the United States.” Both Watson’s temporary restraining order and Chuang’s preliminary injunction are also interim measures, meant to maintain the status quo as the parties continue to argue the case.

The administration had cast the new measure as one that was necessary for national security, implemented only after officials conducted an extensive review of the information they needed to vet those coming to the United States. Those countries that were either unwilling or unable to produce such information even after negotiation, officials have said, were included on the banned list.

“These restrictions are vital to ensuring that foreign nations comply with the minimum security standards required for the integrity of our immigration system and the security of our Nation,” the White House said after Watson’s ruling. “We are therefore confident that the Judiciary will ultimately uphold the President’s lawful and necessary action and swiftly restore its vital protections for the safety of the American people.”

Like Watson’s order, Chuang’s 91-page ruling also found Trump had exceeded his authority under immigration law, but only partially.

The order — which has “no specified end date and no requirement of renewal” — violated a nondiscrimination provision in the law in that it blocked immigrants to the United States based on their nationality, Chuang wrote.

But Chuang said he could not determine, as Watson did, that Trump had violated a different part of federal immigration law requiring him to find entry of certain nonimmigrant travelers would be “detrimental” to U.S. interests before blocking them.

Chuang instead based much of his ruling on his assessment that Trump intended to ban Muslims, and thus his order had run afoul of the Establishment Clause of the Constitution. When Trump was a presidential candidate in December 2015, Chuang wrote, he had promised a “complete shutdown of Muslims entering the United States,” and all of his comments since then seemed to indicate his various travel bans were meant to fulfill that promise.

After his second ban was blocked, Chuang wrote, Trump described the measure as a “watered down version” of his initial measure, adding, “we ought go back to the first one and go all the way, which is what I wanted to do in the first place.” The president had then revoked and replaced his first travel ban, which had also been held up in court.

In August, with courts still weighing the second version, Chuang noted that Trump “endorsed what appears to be an apocryphal story involving General John J. Pershing and a purported massacre of Muslims with bullets dipped in a pig’s blood, advising people to ‘study what General Pershing . . . did to terrorists when caught.’ ”

[Trump said to study General Pershing. Here’s what the president got wrong.]

In September, as authorities worked on a new directive, Trump wrote on Twitter “the travel ban into the United States should be far larger, tougher and more specific — but stupidly, that would not be politically correct!”

Chuang had pressed challengers at a hearing this week on what the government would have to do to make the new ban legal, and he noted in his ruling that the new directive had changed from the previous iterations. The government, for example, had undertaken a review process before inking the new measure, and had added two non-Muslim majority countries to the banned list.

But Chuang wrote that he was unmoved that government had simply relied on the results of their review, and instead believed they made “certain subjective determinations that resulted in a disproportionate impact on majority-Muslim nations.” He wrote that the government offered “no evidence, even in the form of classified information submitted to the Court, showing an intelligence-based terrorism threat justifying a ban on entire nationalities,” and asserted that even the new measure “generally resembles President Trump’s earlier description of the Muslim ban.”

“The ‘initial’ announcement of the Muslim ban, offered repeatedly and explicitly through President Trump’s own statements, forcefully and persuasively expressed his purpose in unequivocal terms,” Chuang wrote.

The suits in federal court in Maryland had been brought by 23 advocacy groups and seven people who said they would be negatively impacted by the new ban.”

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

Yes, the Trump Administration might ultimately prevail on appeal on this one. But, that won’t change the fact that they are “losers.” And, a country that chooses biased, incompetent, and petty leadership like this is also a “Big Loser.”

PWS

10-18-17

TAL KOPAN AT CNN: HOMAN PROMISES MORE DHS “GONZO” ENFORCEMENT AT WORKSITES!

http://www.cnn.com/2017/10/17/politics/ice-crackdown-workplaces/index.html

Tal reports:

“Washington (CNN)The administration’s top immigration enforcement official on Tuesday said his agency will vastly step up crackdowns on employers who hire undocumented immigrants — a new front in President Donald Trump’s hardline immigration agenda.

Acting Immigration and Customs Enforcement (ICE) Director Tom Homan spoke at the conservative Heritage Foundation and was asked whether his agency would do more to target not just undocumented workers, but their places of work.

Homan said he has instructed Homeland Security Investigations (HSI), the investigative unit of ICE, to potentially quintuple worksite enforcement actions next year.

He said he recently asked HSI to audit how much of their time is spent on work site enforcement, and said he has ordered that to increase “by four to five times.”

“We’ve already increased the number of inspections in work site operations, you will see that significantly increase this next fiscal year,” Homan promised, saying the goal is to remove the “magnet” drawing people to enter the US illegally.

close dialog

DHS explores ways to transform immigration system without Congress

And he said his agency would approach the task in a way that’s “a little different” than in the past, by going just as aggressively after employees.

“Not only are we going to prosecute the employers that hire illegal workers, we’re going to detain and remove the illegal alien workers,” Homan said.

“When we find you at a work site, we’re no longer going to turn our heads,” Homan elaborated after the event. “We’ll go after the employer who knowingly hires an illegal alien … but we’re always going to arrest a person who is here illegally. That is our job.”

ICE still has posted the previous administration’s policy on work site enforcement, which prioritizes targeting employers that use undocumented labor as a business model, engage in human smuggling, mistreat employees, commit identity fraud, launder money or are otherwise involved in criminal activity.

ICE spokeswoman Liz Johnson said the strategy “continues to address both” employers and employees.

White House lays out DACA deal asks

“While we focus on the criminal prosecution of employers who knowingly hire illegal workers, under the current administration’s enforcement priorities, workers encountered during these investigations who are unauthorized to remain in the United States are also subject to administrative arrest and removal from the country,” Johnson said.

According to a 2015 Congressional Research Service report, ICE arrested 541 individuals on immigration charges and 362 individuals on criminal charges in work site actions in 2014, continuing a downward trend in actions from a peak in 2011.”

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

Been there, done that, likely to be just as unsuccessful and wasteful as ever. Indeed, back in the late 1970’s while I was INS Deputy General Counsel we developed the famous (or infamous, depending on which side one was on) “Blackie’s Warrants” (referencing the then well-known but now defunct Washington, D.C. eatery “Blackie’s House of Beef” a noted employer of undocumented workers) for entry into workplaces for civil immigration enforcement purposes. Workplace operations were a fertile source of Federal Court litigation, alleged constitutional violations, some class actions and injunctions, but not many final orders of removal.

Compounding the problem — lots of the employers whose workers will be hauled off in cuffs are likely to be GOP donors who aren’t going to like it when the law is enforced against them, rather than just food cart operators and lawn mowers. My recollection is that politicos of both parties weren’t too happy either, particularly when key industries like tourism, restaurants, and hotels were hit during “prime season.” But, why not keep repeating the same failed “strategies” over and over again just to prove that they still don’t work?

Let’s see, with 630,000+ pending cases in U.S. Immigration Court and counting, some of these new “employee cases” might come up for trial by the end of 2020, with luck. That is, unless under Sessions the DOJ does yet another round of “ADR.” But, since many of the folks now working in the U.S. probably have at least arguable avenues for relief, most cases probably will take even longer. And, of course, in a “saturated” court system, every “low priority” case mindlessly placed on the docket displaces another case, which might be older or higher priority. But, that’s what “Gonzo enforcement” and wasting Government resources is all about.

Oh yeah, we also happen to have extremely low unemployment. That probably means that no “other U.S. workers” are going to be rushing in to fill those jobs supposedly vacated by Homan’s operations. Been there, done that too — never saw it work successfully in the long run — particularly since the Trumpsters seem determined to cut off or diminish legal work visa opportunities.

PWS

10-17-17

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