"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
From my friends over at the Legal Aid and Justice Center of Virginia:
Dear Paul,
Today marks a milestone for the Legal Aid Justice Center.
This morning at 10 A.M., the U.S. Supreme Court will begin oral arguments in Pham v. Chavez, LAJC’s first case before the high court in our 54-year history. It is also the last immigration case to be heard by the Supreme Court during Trump’s presidency, a fitting way to cap the past four years of fighting this administration’s harmful policies, which we kicked off with our 2017 lawsuit Aziz v. Trump challenging Trump’s Muslim ban, filed one week after his inauguration.
It is not uncommon for people who have been previously deported to eventually return to the U.S. seeking protection from new threats to their lives or liberty in their home countries. Today’s case is to decide whether immigrants who illegally reenter the United States after a prior deportation and seek an asylum-like form of protection called “withholding of removal” have the right to ask a judge for release from detention while they fight their cases, which routinely take over a year.
This case will affect more than 3,000 people every year nationwide —a number that will likely grow as those who have been turned away at the border through the current administration’s unjust policies return in desperation to seek help once again.
We thank our pro bono co-counsel Paul Hughes, an experienced Supreme Court practitioner arguing the case for us today, and the team at McDermott Will & Emery and the Yale Law School Supreme Court Clinic who assisted with the briefing. Paul has partnered with us on many of our legal challenges to the Trump administration’s immigration policies, dating back to Aziz v. Trump.
This case began in summer 2017 when we won the release of five individuals being held without bond at the Farmville Detention Center. We quickly recognized that the system needed to be reformed. Our subsequent class action lawsuit has beaten back every challenge to date, and no matter the outcome of today’s hearing, has already won the release of more than 100 people from detention.
We hope the highest court in the land will also acknowledge that these immigrants should have the chance to seek freedom.
Angela Ciolfi
Executive Director
Legal Aid Justice Center
Many, many thanks to the Legal Aid & Justice Center, pro bono co-counsel Paul Hughes, the team at McDermott Will & Emery, and the Yale Law School Supreme Court Clinic for making this happen. The Round Table 🛡⚔️also filed an amicus brief in this important case:
As noted in my previous posting, this case is also a good example of the false and misleading narratives pushed by unethical former SolicitorGeneral and leading “Trump Toady” Noel Francisco in defending the regime’s “crimes against humanity” and racist agenda targeting asylum seekers and other migrants.
In fact, as anybody actually familiar with the Immigration Court system knows, holding bond hearings for 3,000 seekers of protection would not be a major burden on the Immigraton Courts. It’s an example of critical, yet routine, duties that should be performed easily, efficiently, fairly, and frequently by any qualified U.S. Immigration Judge.
What has been a “burden on the system” and a fiscal, due process, and management disaster is the improper “Aimless Docket Reshuffling” engaged in by DOJ politicos and their “maliciously incompetent” toadies at EOIR. This mismanagement and total failure of competent judicial leadership and administration has pushed the backlog to over an astounding 1.1 million cases (with many others likely MIA or lost in space in the EOIR mess).
To accomplish this dysfunctional disaster, EOIR has doubled the number of Immigration Judges. This often involves hiring judicial candidates from prosecutorial backgrounds who lack the human rights and immigration expertise, and in some cases the backbone to comply with their oaths to uphold the Constitution, necessary to restore due process to the system, issue prompt bonds to those seeking protection, establish precedents for expeditious granting of asylum and other protection, and, most of all, hold an out of control DHS enforcement kakistocracy accountable.
Judge Garland👨🏻⚖️ take note! As of the date of your confirmation, your name will start appearing on the grossly deficient work product churned out by EOIR and the scofflaw nonsense being presented to the Supremes and other Federal Courts by the SG’s Office and other DOJ lawyers who have forgotten or abandoned their ethical obligations.
I can’t believe that any Federal Judge highly respected enough to be nominated to the Supreme Court by a real President would want his name and legacy tarnished by association with the White Nationalist due process disaster and misuse of public funds currently going on at EOIR.
The “EOIR Clown Show”🤡🦹🏿♂️ must go! And, while you’re at it, the SG’s Office and other litigating components who have “carried the water” for a regime out to bury truth and dismember our Constitution and our democratic institutions also are in dire need of a “thorough housecleaning!”🧹🪠
🇺🇸⚖️🗽👍🏼Due Process Forever! The “New American Gulag” ☠️⚰️🤮 Never!
J Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration JudgesKnightess of the Round Table
Asher Stockler reports for Law360:
. . . .
But the government said that, even if these withholding claims succeed, it still retains the right to deport the group of immigrants to other countries that will accept them. Because deportation is still on the table regardless of the status of those claims, the administration argued, the group of immigrants should be treated identically to those who are about to be deported.
The ACLU rebutted that argument, saying that such third-country deportations are exceedingly rare. Because of this, the ACLU said the availability of a third-country option should not mean the
11/12/2020 Justices Told Of Due Process Issues Without Bond Hearings – Law360
deportation-ready provision of the law kicks in. According to the American Immigration Council, fewer than 2% of immigrants who received persecution-based relief in fiscal year 2017 were ultimately deported to a third country.
The Justice Department also raised the possibility that having to scrutinize the practical odds of removal from immigrant to immigrant would be “patently unworkable.”
“A case-by-case approach … would needlessly add to the burdens that are already ‘overwhelming our immigration system,'” the department said, quoting a prior case.
But a coalition of former immigration trial and appeals judges pushed back on that idea with their own amicus brief Thursday.
“Bond hearings in withholding of removal proceedings are no different than bond hearings in other contexts,” the group, representing 34 judges who have cumulatively overseen thousands of cases, wrote. “Contrary to [the administration’s] assertion, bond hearings in withholding of removal proceedings neither lead to a slowdown of cases that ‘thwart Congress’ objectives’ in enacting the immigration laws, nor impose an administrative burden on immigration courts.” The American Civil Liberties Union is represented by its own Michael Tan, Omar Jadwat, Judy Rabinovitz, Cecillia Wang and David D. Cole.
The coalition of former judges is represented by David Keyko, Robert Sills, Matthew Putorti, Daryl Kleiman, Patricia Rothenberg and Roland Reimers of Pillsbury Winthrop Shaw Pittman LLP.
The plaintiffs are represented by Paul Hughes, Michael Kimberly and Andrew Lyons-Berg of McDermott Will & Emery LLP, Simon Sandoval-Moshenberg and Rachel McFarland of the Legal Aid Justice Center, Mark Stevens of Murray Osorio PLLC, and Eugene Fidell of Yale Law School’s Supreme Court Clinic.
The Trump administration is represented by Noel Francisco, Jeffrey Wall, Edwin Kneedler and Vivek Suri of the U.S. Solicitor General’s Office and Lauren Fascett, Brian Ward and Joseph Hunt of the U.S. Department of Justice’s Civil Division.
The case is Tony H. Pham et al. v. Maria Angelica Guzman Chavez et al., case number 19-897, at the U.S. Supreme Court.
–Editing by Michael Watanabe.
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Read the complete article over on Law360. The case comes from the Fourth Circuit. Hopefully, the Biden-Harris Administration will withdraw the SG’s disingenuous petition (if not already denied by the Supremes) and implement the Fourth Circuit’s correct decision nationwide.
That’s the way to promote due process and judicial efficiency instead of constantly promoting inhumanity, abuse of due process, judicial inefficiency (fair adjudication is hindered by unnecessary detention in the Gulag), and chaos!
Many, many, many thanks to our all-star pro bono team:
David Keyko, Robert Sills, Matthew Putorti, Daryl Kleiman, Patricia Rothenberg and Roland Reimers of Pillsbury Winthrop Shaw Pittman LLP.
Couldn’t have done it without you guys! You constantly “Make us look smart!”
I also note with great pride the following “charter members” of the “New Due Process Army” who were on the plaintiffs’ legal team:
Rachel McFarland, my former Georgetown Law student;
Simon Sandoval-Moshenberg, who appeared before me at the Arlington Immigration Court, and is an occasional contributor to “Courtside;
Mark Stevens, who appeared before me at the Arlington Immigration Court.
Well done, fearless fighters for due process!
Rachel McFarland Legal Aid Justice Center Charter Member, New Due Process Army
This disgraceful performance by the Solicitor General’s Office (once revered, now reviled) has become “the norm” under Trump. Francisco’s arguments are those of an attorney who didn’t do “due diligence,” but doesn’t expect the Court to know or care what really happens in Immigration Court. And, unfortunately, with the exception of Justice Sotomayor and perhaps Justice Kagan, that may well be a correct assumption. But that doesn’t make it any less of a powerful and disturbing indictment of our entire U.S. Justice system in the age of Trump.
Reality check: I routinely did 10-15, sometimes more, bond hearings at a Detained Master Calendar in less than one hour. I treated everyone fairly, applied the correct legal criteria, and set reasonable bonds (usually around $5,000) for everyone legally eligible. Almost all represented asylum seekers and withholding seekers eligible for bond who had filed complete and well-documented asylum or withholding applications were released on bond. About 99% showed up for their merits hearings.
I encouraged attorneys on both sides to file documents in advance, discuss the case with each other, and present a proposed agreed bond amount or a range of amounts to me whenever possible. Bond hearings were really important (freedom from unnecessary restraint is one of our most fundamental rights), but they weren’t “rocket science.” Bond hearings actually ran like clockwork.
Indeed, if the attorneys were “really on the ball,” and ICE managed to find and present all the detainees timely, I could probably do 10-15 bond cases in 30 minutes, and get them all right. My courtroom and my approach weren’t any different from that of my other then-colleagues at Arlington. In thirteen years on the bench, I set thousands of bonds and probably had no more than six appeals to the BIA from my bond decisions. I also reviewed many bond appeals at the BIA. (Although, most bond appeals to the BIA were “mooted” by the issuance of a final order in the detained case before the bond appeal was adjudicated.) Most took fewer than 15 minutes.
Indeed, my past experience suggests that a system led (not necessarily “run”) by competent judicial professionals and staffed with real judges with expertise in immigration, asylum, and human rights and unswervingly committed to due process and fundamental fairness could establish “best practices” that would drastically increase efficiency, cut (rather than mindlessly and exponentially expand) backlogs, without cutting out anyone’s rights. In other words, EOIR potentially could be a “model American judiciary,” as it actually was once envisioned, rather than the slimy mass of disastrous incompetence and the national embarrassment that it is today!
The idea that doing something as straightforward as a bond hearing would tie the system in knots is pure poppycock and a stunning insult to all Immigration Judges delivered by a Solicitor General who has never done a bond case in his life!
Yes the system is overwhelmingly backlogged and dysfunctional! But that has nothing to do with giving respondents due process bond hearings.
It has everything to do with unconstitutional and just plain stupid “politicization” and “weaponization” of the courts under gross incompetence and mismanagement by political hacks at the DOJ who have installed their equally unqualified toadies at EOIR. It also has to do with a disingenuous Solicitor General who advances a White Nationalist political agenda, rather than constitutional rights, fundamental fairness, rationality, and best practices. It has to do with a Supreme Court majority unwilling to take a stand for the legal rights and human dignity of the most vulnerable, and often most deserving, among us in the face of bullying and abuse by a corrupt, would-be authoritarian, fundamentally anti-American and anti-democracy regime.
It has to do with allowing a corrupt, nativist, invidiously-motivated regime to manipulate and intentionally misapply asylum and protection laws at the co-opted and captive DHS Asylum Office; thousands of “grantable” asylum cases are wrongfully and unnecessarily shuffled off to the Immigration Courts, thus artificially inflating backlogs and leading to more pressure to cut corners and dispense with due process.
It also paints an intentionally false and misleading picture that the problem is asylum applicants rather than the maliciously incompetent White Nationalists who have seized control of our system and acted to destroy years of structural development and accumulated institutional expertise.
Good Government matters! Maliciously incompetent Government threatens to destroy our nation! (Doubt that, just look at the totally inappropriate, entirely dishonest, response of the Trump kakistocracy to their overwhelming election defeat by Biden-Harris and the unwillingness of both the GOP and supporters to comply with democratic norms and operate in the real world of facts, rather than false narratives.)
Due process, fundamental fairness, equal justice, simple human decency, and Good Government won’t happen until we get the White Nationalist hacks out of the DOJ and replace the “clown show” at EOIR with qualified members of the New Due Process Army. Problem solvers, rather than problem creators; over-achievers, rather than screw-ups!
The incoming Biden-Harris Administration is left with a stark, yet simple, choice: oust the malicious incompetents and bring in the “competents” from the NDPA to fix the system; or become part of the problem and have the resulting mess forever sully your Administration.
The Obama Administration (sadly) chose the latter. President Elect Biden appears bold, confident, self-aware, and flexible enough to recognize past mistakes. But, recognition without reconstruction (action) is useless! Don’t ruminate — govern! Like your life depends on it!
And, by no means is EOIR the only part of DOJ the needs “big time” reform and a thorough shake up. We must have a Solicitor General committed to following the rules of legal ethics and common human decency and who will insist on her or his staff doing likewise.
The next Solicitor General must also have demonstrated expertise in asylum, immigration, civil rights, and human rights laws and be committed to expanding due process, equal justice, racial justice, and fundamental fairness throughout the Government bureaucracy and “pushing” the Supremes to adopt and endorse best, rather than worst, practices in these areas.
American Justice and our court systems are in “free fall.” This is no time for more “amateur night at the Bijou.”
And here are some thoughts for the future if we really want to achieve “Good Government” and equal justice for all:
Every future Supreme Court Justice must have served a minimum of two years as a U.S. Immigration Judge with an “asylum grant rate” that is at or exceeds the national average for the U.S. Immigration Courts;
Every future Solicitor General must have done a minimum of ten pro bono asylum cases in U.S. Immigration Court.
Due Process Forever! Clown Show (With Lives & Humanity On The Line) Never!
PAMELA HARRIS, Circuit Judge:
The petitioners in this case are a class of noncitizens subject to reinstated removal
orders, which generally are not open to challenge. The petitioners may, however, pursue withholding of removal if they have a reasonable fear of persecution or torture in the countries designated in their removal orders. Availing themselves of that right, these petitioners sought withholding of removal, and they are being detained by the government while they await the outcome of their “withholding-only” proceedings. The question before us is whether they have the right to individualized bond hearings that could lead to their release during those proceedings.
Answering that question requires that we determine the statutory authority under which the government detains noncitizens who seek withholding of removal after a prior removal order has been reinstated. The petitioners argue that their detention is governed by 8 U.S.C. § 1226, which authorizes detention “pending a decision on whether the alien is to be removed,” and would allow them to seek release on bond and to make their case before an immigration judge. The government, on the other hand, points to 8 U.S.C. § 1231, which applies “when an alien is ordered removed” – as the petitioners were, the government says, by virtue of their reinstated removal orders – and makes that detention mandatory during a 90-day “removal period.”
The district court granted summary judgment to the petitioners, holding that they are detained under § 1226 because a decision on removal remains “pending” until their withholding-only proceedings are complete. We agree with the district court’s careful
analysis of the relevant statutes and affirm its judgment.
KEY QUOTE FROM DISSENT:
RICHARDSON, Circuit Judge, dissenting:
This case presents a question of statutory interpretation. Are previously removed
aliens, who are subject to a reinstated order of removal from the United States, entitled to a bond hearing when they seek withholding of removal? The answer turns on which provision of the Immigration and Nationality Act governs their detention. Section 1231 applies “when an alien is ordered removed” and provides no right to a bond hearing. On the other hand, § 1226 applies to an alien awaiting “a decision on whether the alien is to be removed” and permits the alien’s release on bond after a hearing. The majority holds that § 1226 controls.
I respectfully dissent. Both the plain language and the structure of the Immigration and Nationality Act compel the conclusion that § 1231, not § 1226, governs the detention of aliens with reinstated orders of removal. Petitioners are thus not entitled to a bond hearing while they seek withholding of removal under their reinstated orders of removal.
Great decision! Congratulations to Paul Whitfield Hughes, III, Mayer Brown, LLP who argued the case for the Appellees. Also, congratulations to the Legal Aid and Justice Center and to Mark Stevens, Murray Osorio, LLC, who practiced before me in Arlington, for their role in litigating the case below.
I am particularly proud and gratified by the role played by my former Georgetown Law student, now a full-fledged member of “New Due Process Army,” Rachel Colleen McFarland, who is an attorney with the Legal Aid and Justice Center.
Nice to know that some Article III Appellate Judges are “getting it,” and standing up to the Trump Administration’s abuse.
Not surprisingly, those of us who have seen how the system often doesn’t work know that many of those under so-called “reinstated orders” were railroaded out the first time around without any “Due Process.”
NEW VIRGINIA LAWS HELP IMMIGRANT CHILDREN SEEK PROTECTION FROM ABUSE, NEGLECT, AND ABANDONMENT
RICHMOND: On Friday, February 22, the Virginia General Assembly passed SB 1758 and HB 2679, identical bills that will aid immigrant children fleeing abuse, neglect, and abandonment in their home countries in seeking protection from deportation in Virginia.
Across the country, many immigrant children and DREAMers facing deportation proceedings seek a form of immigration relief called “Special Immigrant Juvenile Status” (SIJS). SIJS is unique in that it requires a state court to issue a certain type of order before the child may even attempt to seek SIJS relief from the federal government. In a 2017 case called Canales v. Torres-Orellana, brought by the Legal Aid Justice Center, the Virginia Court of Appeals sharply restricted state judges’ ability to issue these orders, leaving hundreds of Virginia immigrant children without protection. Virginia became one of the most difficult states in the nation to obtain SIJS.
During this year’s General Assembly session, Legal Aid Justice Center worked closely with legislators and the Governor’s office to pass these bills, which would overturn the Canales case and restore Virginia immigrant children’s ability to apply for SIJS. The bills also address the needs of other children before the juvenile courts, easing the way for any Virginia child to seek a state court’s assistance in proving eligibility for other benefits such as adoption assistance, TANF assistance, and timely public school enrollment.
SB 1758 was introduced by Sen. Scott Surovell (D-Mount Vernon). HB 2679 was introduced by Del. Marcus Simon (D-Falls Church). The bills initially took different approaches to fixing this issue, and each passed their respective chambers with an overwhelming bipartisan majority of votes. The bills were then placed into committees of conference in an attempt to gain consensus, and identical bills emerged that combined the approach of both; they garnered unanimous support in the House, and only two dissenting votes in the Senate. The bills now go to Governor Northam’s desk for his signature; once signed, they will take effect on July 1 of this year. The conference report with bill text is available at: http://leg1.state.va.us/cgi-bin/legp504.exe?191+ful+SB1758S1+pdf
“Immigrant children in Virginia can breathe a little more easily now,” said Simon Sandoval-Moshenberg, Legal Director of Legal Aid Justice Center’s Immigrant Advocacy Program. “Our agency has represented over 150 children fleeing truly horrific situations of abuse or neglect in their home countries. Fairness dictates that they be afforded the same rights as immigrant children in any other state. Now these new DREAMers will be able to seek protection and apply to remain in the United States with green cards.”
“This excellent result could not have come about without the leadership and hard work of Senator Surovell and Delegate Simon, and the support of Governor Northam’s administration,” said Amy Woolard, Legal Aid Justice Center Attorney and Policy Coordinator. “Virginia’s Juvenile and Domestic Relations courts should exist to protect the best interests of all children in the Commonwealth, and these bills will now make clear that is true for immigrant children seeking safety through SIJS, as well.”
“The United States has a long history of protecting abused, neglected, and abandoned children, and the Commonwealth will continue to play its part,” said Sen. Surovell. “These bills will clarify and restore Virginia courts’ authority to make factual findings necessary to protect children fleeing abuse, neglect, and abandonment from abroad, and I appreciate the broad bipartisan support of legislators who saw this as consistent with Virginia’s longstanding values.”
“I’m so pleased we were able to pass this important legislation to give our courts the authority they need to be able help some of the most vulnerable and powerless people in our Commonwealth,” said Del. Simon. “It is so important that we not let victims of abuse, neglect, and often abandonment fall through the cracks because of a technical deficiency in our code. Those are the common sense problems we are elected to come down here and fix.”
Legal Aid Justice Center is a statewide Virginia nonprofit organization whose mission is to strengthen the voices of low-income communities and root out the inequities that keep people in poverty. We provide legal support to immigrant communities facing legal crises and use advocacy and impact litigation to fight back against ICE enforcement and detention abuses. More information is available at http://www.justice4all.org/.
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And, here’s the latest from the fabulous Dan Kowalski, “Chief Immigration Guru” at LexisNexis Immigration Community:
Thanks to the efforts of the Rocky Mountain Immigrant Advocacy Network (“RMIAN”).
Passage of HB19-1042: Extension of State Court Jurisdiction for Vulnerable Youth
RMIAN is thrilled to announce the passage of House Bill 19-1042 through the Colorado House and Senate. The bill was sponsored by Representative Serena Gonzales Gutierrez and Senator Julie Gonzales and is now awaiting signature by Governor Polis. This bill will allow immigrant youth who have been abused, neglected, and abandoned to gain access to Colorado State courts for necessary protection and care, and to establish their eligibility for federal immigration relief. Ashley Harrington with RMIAN Children’s Program helped to craft this important legislation with Representative Gonzales Gutierrez, Senator Gonzales, Denise Maes with the ACLU of Colorado, Kacie Mulhern with the Children’s Law Center, Ashley Chase from the Office of the Child’s Representative, Katie Glynn with Grob & Eirich, and Bridget McCann, a RMIAN pro bono family law attorney. Celebrating the law’s passage today Ashley Harrington says, “I am so proud and honored to have been a part of making this law a reality that will impact the lives of many vulnerable immigrant children and ensure that they can find safety and stability in Colorado.”
Denise Maes, Ashley Harrington, Senator Gonzales, Representative Gonzales Gutierrez, Katie Glynn and Kacie Mulhern at the Capitol 3/1/19.
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Compare this with the Trump Administration’s cruel and shortsighted efforts to mindlessly restrict the scope of these important SIJ protections for some of our most vulnerable youth. Here’s my recent blog featuring WNYC’s Beth Fertig reporting on the Federal Judge’s adverse reaction to the DOJ’s disingenuous arguments “in defense of the indefensible” in his court. Talk about abuse of our court system by our Government! https://immigrationcourtside.com/2019/02/27/beth-fertig-wnyc-federal-judge-tires-of-administrations-absurdist-legal-positions-in-court/
SIJ cases also have the huge benefit of being processed outside the clogged U.S. Immigration Court asylum system, thus keeping many cases out of the largely artificially created “backlog” that is handicapping Due Process in Immigration Court.
There are many ways of using and building on current laws to make the immigration and justice systems work better. It’s a national disgrace that the Trump Administration isn’t interested in Due Process, fairness, or making our immigration system function in a more rational manner.
The good news: Eventually, the small minds, incompetence, and “radical White Nationalism” of this Administration and its enablers will be replaced by smarter, wiser, more capable folks like those in the LAJC, the RMIAN, and other members of the New Due Process Army. These are the folks who someday will lead us out of today’s darkness into a brighter and more enlightened future for all Americans!
FEDERAL COURT ALLOWS CHALLENGE TO GOVERNMENT POLICY
USING DETAINED CHILDREN AS BAIT TO ARREST FAMILIES
ALEXANDRIA, VA (November 16, 2018) — Yesterday, the U.S. District Court for the Eastern District of Virginia denied the U.S. government’s motion to dismiss Legal Aid Justice Center’s lawsuit on behalf of detained immigrant children and their families, striking a blow to a new immigration policy that has kept thousands of children unnecessarily detained for months. The Court’s decision is a victory for immigrant children and their families in Virginia and across the country.
This case is particularly significant, not only in Virginia, but nationally. Over 13,000 children are held by Office of Refugee Resettlement (ORR) under the policies challenged in this suit, hundreds of whom are in Virginia. Because the policies are federal policies implemented across the country, the outcome of this case will have a nationwide impact.
Legal Aid Justice Center (LAJC), together with the intellectual property law firm of Sterne, Kessler, Goldstein, and Fox, brought this first-of-its-kind class action lawsuit challenging the government’s recent policy of sharing sponsor information and information about sponsors’ household members with U.S. Immigration and Customs Enforcement (ICE). That policy has resulted in ICE arrests of family and friends that came forward to bring their children home.
“The Trump administration has been carrying out a backdoor family separation agenda, keeping immigrant children apart from their families and using children as bait to break up the very families they have traveled so far and risked so much to join,” said Becky Wolozin, lead counsel and attorney with LAJC’s Immigrant Advocacy Program. “This decision is a victory for immigrant children and families. The Court has said clearly that the government cannot run roughshod over the rights of these children and their loved ones.”
The lawsuit stemmed from the experience of four children in ORR custody on Virginia who were held by the government for over five months while their relatives tried to bring them home. Three of the four children were finally reunified with their families – one just weeks before the Court’s order came down. The three children who have been reunified with their families have been dismissed from the case. One child remains in government custody, where he has been held apart from his adult sister for six months, after fleeing violence and neglect in his home country.
“For years, ORR has neglected its obligations under the Administrative Procedure Act,” said Sterne Kessler Director Salvador Bezos, lead of the firm’s immigration-focused pro bono matters. “The Administrative Procedure Act provides essential protections against this kind of agency overreach. I am proud of my colleagues’ and LAJC’s efforts to force the government to meet its obligations to the children in its custody.”
“ORR is supposed to protect vulnerable immigrant children. Instead it is placing them in harm’s way under the guise of child welfare,” said Simon Sandoval-Moshenberg, Legal Director of LAJC’s Immigrant Advocacy Program. “Their policy and its enforcement undermine successfully placing children with their families and the vast surveillance actions are destabilizing immigrant communities.”
In the November 15th ruling, U.S. District Court Judge Leonie Brinkema firmly upheld children’s right to liberty and the right to family unity for immigrant families. Judge Brinkema found that the children and their sponsors provided sufficient reason to suggest that their constitutional rights were violated, and that the government violated the Administrative Procedure Act when it enacted its ICE sharing policy earlier this year. The case will now move forward as LAJC works to certify the class and the parties work to complete discovery.
Legal Aid Justice Center is a statewide Virginia nonprofit organization whose mission is to strengthen the voices of low-income communities and root out the inequities that keep people in poverty. We provide legal support to immigrant communities facing legal crises and use advocacy and impact litigation to fight back against ICE enforcement and detention abuses. More information is available at http://www.justice4all.org/current-initiatives/fighting-family-separation/
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Congrats to Rebecca, Simon, and the wonderful crew over at Legal Aid Justice in Virginia! True fighters and leaders of the New Due Process Army!
Hopefully this will pave the way not only for the end of these despicable and illegal behaviors, but also holding the Trump Administration scofflaws and their career employee accomplices who plan and execute these violations of law fully accountable for their intentionally unlawful and unconstitutional actions.
Mr. Sandoval-Moshenberg, who represented the plaintiffs, said that many parents were evaluated for “credible fear” after having their children removed, but before they were told where the children had been taken. He said his team submitted evidence showing that, during the interviews, the parents were “out of their minds with trauma, focused solely on the well-being and the whereabouts of their kids.”
In one piece of evidence included in the case, a recording of an immigration judge questioning a mother about her asylum claim, the mother can be heard crying too hard to answer the judge’s questions and says that she feels sick, Mr. Sandoval-Moshenberg said. After a few minutes, he said, the judge affirms an asylum officer’s finding that the woman’s fear of returning to her home country is not credible and asks that she be taken to see a doctor.
. . . .
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Read Caitlin’s full article concerning the recent proposed settlement at the above link.
Obvious question: Why would somebody like Jeff Sessions be given authority over a “court system” that is supposed to insure Due Process for asylum applicants? That’s even worse than having the fox guard the henhouse! The results are as horrible and unlawful as they are predictable.
Legal Aid Justice Center has won an important first-in-the-nation class action case in federal court in Alexandria, establishing the right to bond hearings for a class of detained immigrants whom the government is holding in long-term no-bond detention.
When immigrants are deported to countries where human rights violations are rampant, they often find themselves subject to persecution, torture, or even death threats. And since the U.S. government almost never gives a visa to someone who has already been deported, these individuals may find themselves with no option other than to try to return to the United States and cross the border illegally to seek a form of legal protection from persecution known as “withholding of removal.”
Previously, ICE and the immigration courts refused to grant bond to these individuals, holding them in prison-like conditions in immigration detention centers for months if not years while they fought out their cases. Legal Aid Justice Center filed a lawsuit last year on behalf of five immigrants held in this prolonged no-bond detention, and won release for two of them, but the government refused to apply the decision more broadly to other similarly situated immigrants held in detention.
We then filed a first-in-the-nation class action, seeking access to bond hearings for all immigrants detained in Virginia who fall into this category. On February 26, 2018, federal district judge Leonie M. Brinkema granted our motions in full, giving our clients and the class members all of the relief we asked for. We understand that there are about 50 immigrants currently detained at the Farmville detention center who meet this description, with more being arrested every week. Now, they will have the chance to pay a bond and leave detention, reunite with their families, and resume normal lives while they fight their cases for protection.
Special thanks to our pro bono co-counsel at Mayer Brown LLP, Murray Osorio LLP, Law Office of James Reyes, and Blessinger Legal PLLC – we couldn’t possibly do it without you!
The opinion applies to all immigrants who are in pending withholding-only proceedings, and “as of December 7, 2017 or at any time thereafter are detained within the Commonwealth of Virginia under the authority of [ICE].” The government has been ordered to notify all class members by March 13, 2018, and to provide them with a bond hearing (or a Joseph hearing, if appropriate) by March 28, 2018.
We will be monitoring compliance with this opinion, and want to hear from Virginia attorneys who represent a class member. If you represent a class member, or if you have questions as to whether your client might be a class member, please e-mail LAJC attorney Rachel McFarland at rmcfarland@justice4all.org to let us know.
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“Super Congrats” to Simon Y. Sandoval-Moshenberg—Director, Immigrant Advocacy Program & his team of Firms and pro bono attorneys for making this happy.
I am particularly delighted that one of my “star” former Georgetown Law RLP students, Rachel McFarland, has been involved in this case. Rachel is a “charter member” of the “New Due Process Army!”
“At 26, Nurimaro Park was living paycheck to paycheck, helping support his undocumented parents on a tutor’s salary. So when his work permit expired in May, he waited to renew it because the rules allowed for that. He needed time to save up the $495 fee.
Now, he and thousands of others who let their Deferred Action for Childhood Arrivals permits expire are without legal status in the United States. He and another young immigrant in Northern Virginia are suing the Trump administration in federal court in Alexandria, saying their due process rights have been violated.
“You can’t change the rules on someone without giving them a heads-up first,” said Simon Sandoval-Moshenberg, an attorney for the Legal Aid Justice Center representing the two.
Until September, DACA recipients, known as “dreamers,” could file a renewal of their two-year permits up to a year after expiration, a policy laid out on the U.S. Citizenship and Immigration Services website.
“Money is a huge issue; $495 is hard to save up,” said Park, who lives with his parents in Fairfax County. “You have a year of grace period . . . and I was taking advantage of that.”
Nurimaro Park meets with his attorney, Simon Sandoval-Moshenberg, right. (Michael Robinson Chavez/The Washington Post)
Then, on Sept. 5, Attorney General Jeff Sessions announced that the program would end in six months. Although immigrants whose permits are set to expire before March 5 were given the chance to renew them one last time, anyone whose permit had already expired could not.
The DACA program, created by President Barack Obama in 2012, allowed hundreds of thousands of immigrants brought to the United States as children to work legally and attend college.”
Simon Sandoval-Moshenberg, and the Legal Aid Justice Center are out to correct another injustice. Not surprisingly, Attorney General Jeff “Gonzo Apocalypto” Sessions and his “Anti-Dreamer Crusade” are at the center of this controversy.
Romero v. Evans, ___ F. Supp. 3d ___, 2017 WL 5560659 (EDVA 11-17-17) (published)
U.S. District Judge Leonie M. Brinkema
ATTORNEYS FOR RESPONDENTS: Ivan Yacub, Yacub Law Office, Woodbridge, VA, Nicholas Cooper Marritz, Legal Aid Justice Center, Falls Church, VA, Simon Yehuda Sandoval–Moshenberg, Simon Sandoval Moshenburg, Falls Church, VA, Rachel Colleen McFarland, Legal Aid Justice Center, Charlottesville, VA, Mark Alastair Stevens, Murray Osorio PLLC, Fairfax, VA, for Cristian Flores Romero, et al., Petitioners
KEY QUOTES (From Westlaw Version):
“Moreover, Congress clearly intended to have § 1231 govern only the final logistical period, in which the government has actual authority to remove the alien and need only schedule and execute the deportation. Congress has specifically limited the normal “removal period” to 90 days, a limitation that makes sense if the removal period is only meant to govern the final logistical steps of physically removing an alien. Based on the length of petitioners’ detentions to date, it is obvious that withholding-only proceedings take substantially longer than 90 days. As such, it would be contrary to congressional intent to shoehorn a class of aliens whose proceedings will typically far exceed 90 days into the “removal period” for which Congress has specifically intended a 90–day limit.”
. . . .
All told, this petition presents a difficult question of statutory interpretation. Although respondents’ arguments have some merit, petitioners’ position, which attempts to harmonize § 1226 and § 1231 by locating the dividing line between the two sections as the moment when the government has final legal authority to remove the alien, better accords with the text, structure, and intent of the relevant provisions. Accordingly, the Court concludes that petitioners are detained under § 1226(a), not § 1231, and therefore are entitled to individualized bond hearings. For the reasons stated above, respondents’ Motion to Dismiss in Part will be granted, petitioners’ Motion for Summary Judgment will be granted, and respondents’ Motion for Summary Judgment will be denied by an appropriate Order to be issued with this Memorandum Opinion.”
Those with full Westlaw and/or PACER access can get Judge Brinkema’s full opinion at those sites.
There were quite a few of these “Withholding Only” cases on the Detained Docket when I was at the Arlington Immigration Court. I imagine there are even more now. So, this decision could have a major impact.
Judge Brinkema noted quite correctly that “withholding-only proceedings take substantially longer than 90 days.” In other words, “real due process” can’t be rolled off the “judicial assembly line” like it is in some Border Detention Courts where most of the respondents are unrepresented and many are essentially “duressed” by prolonged detention in poor conditions, intentional lack of access to legal assistance, and orchestrated inaccessibility of material evidence into giving up viable claims for protection under our laws.
Nice work by the NDPA “Legal Team!”I know each of the attorneys personally from their work in my courtroom, my classroom, or my “CLE outreach” since retirement. This just continues to demonstrate how “good lawyering” from “outstanding attorneys” can turn potential losers into “winners.”
That’s why the “Sessions Proposals” to “speed up” the U.S. Immigration Judges and put more roadblocks in the way of pro bono legal representation and full due process hearings are so invidious. We need an independent Article I Immigration Court fully committed to Constitutional Due Process! And, we need it now!