"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.
Dahlia Lithwick Legal Reporter SlateHonorable James Dannenberg Retired State Judge Hawaii
Dahlia Lithwick reports for Slate:
James Dannenberg is a retired Hawaii state judge. He sat on the District Court of the 1st Circuit of the state judiciary for 27 years. Before that, he served as the deputy attorney general of Hawaii. He was also an adjunct professor at the University of Hawaii Richardson School of Law, teaching federal jurisdiction for more than a decade. He has appeared on briefs and petitions as part of the most prestigious association of attorneys in the country: the Supreme Court Bar. The lawyers admitted to practice before the high court enjoy preferred seating at arguments and access to the court library, and are deemed members of the legal elite. Above all, the bar stands as a sprawling national signifier that the work of the court, the legitimacy of the institution, and the business of justice is bolstered by tens of thousands of lawyers across the nation.
On Wednesday, Dannenberg tendered a letter of resignation from the Supreme Court Bar to Chief Justice John Roberts. He has been a member of that bar since 1972. In his letter, reprinted in full below, Dannenberg compares the current Supreme Court, with its boundless solicitude for the rights of the wealthy, the privileged, and the comfortable, to the court that ushered in the Lochner era in the early 20th century, a period of profound judicial activism that put a heavy thumb on the scale for big business, banking, and insurance interests, and ruled consistently against child labor, fair wages, and labor regulations.
The Chief Justice of the United States
One First Street, N.E.
Washington, D.C. 20543
March 11, 2020
Dear Chief Justice Roberts:
I hereby resign my membership in the Supreme Court Bar.
This was not an easy decision. I have been a member of the Supreme Court Bar since 1972, far longer than you have, and appeared before the Court, both in person and on briefs, on several occasions as Deputy and First Deputy Attorney General of Hawaii before being appointed as a Hawaii District Court judge in 1986. I have a high regard for the work of the Federal Judiciary and taught the Federal Courts course at the University of Hawaii Richardson School of Law for a decade in the 1980s and 1990s. This due regard spanned the tenures of Chief Justices Warren, Burger, and Rehnquist before your appointment and confirmation in 2005. I have not always agreed with the Court’s decisions, but until recently I have generally seen them as products of mainstream legal reasoning, whether liberal or conservative. The legal conservatism I have respected– that of, for example, Justice Lewis Powell, Alexander Bickel or Paul Bator– at a minimum enshrined the idea of stare decisis and eschewed the idea of radical change in legal doctrine for political ends.
I can no longer say that with any confidence. You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.
The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.
Without trying to write a law review article, I believe that the Court majority, under your leadership, has become little more than a result-oriented extension of the right wing of the Republican Party, as vetted by the Federalist Society. Yes, politics has always been a factor in the Court’s history, but not to today’s extent. Even routine rules of statutory construction get subverted or ignored to achieve transparently political goals. The rationales of “textualism” and “originalism” are mere fig leaves masking right wing political goals; sheer casuistry.
Your public pronouncements suggest that you seem concerned about the legitimacy of the Court in today’s polarized environment. We all should be. Yet your actions, despite a few bromides about objectivity, say otherwise.
It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America.
I predict that your legacy will ultimately be as diminished as that of Chief Justice Melville Fuller, who presided over both Plessy and Lochner. It still could become that of his revered fellow Justice John Harlan the elder, an honest conservative, but I doubt that it will. Feel free to prove me wrong.
The Supreme Court of the United States is respected when it wields authority and not mere power. As has often been said, you are infallible because you are final, but not the other way around.
I no longer have respect for you or your majority, and I have little hope for change. I can’t vote you out of office because you have life tenure, but I can withdraw whatever insignificant support my Bar membership might seem to provide.
Please remove my name from the rolls.
With deepest regret,
James Dannenberg
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So true. I’d also compare JR’s subservience to a transparently racist, White Nationalist, authoritarian agenda to White Supremacist darling Chief Justice Roger Taney, author of the Dred Scott decision. Roberts is knowingly enabling the “Dred Scottifing” of Hispanics, African Americans, Muslims, political opponents, the LGBTQ community, journalists, minority voters, and a host of others on the authoritarian regime’s “enemies” list.
At a time when America needs a Chief Justice with the courage and integrity to stand up for our Constitution, the rule of law, and the lives of the most vulnerable among us, we instead get Roberts.
J.R. Is quick to stand up for the rights of corporations, guns, and the Executive. But, when it comes to the rights of individuals — things like due process, human rights, and the right to be treated with human dignity, he’s nowhere to be found.
Only Justice Sotomayor had the guts and intellectual integrity to stand up for the future of humanity, simple human decency, and the rule of law by voting to deny the regime’s fraudulent stay request. Typically, Roberts & Co. didn’t even have the decency and intellectual honesty to provide a rationale for their life-threatening action. A reasoned decision is one of the “minimal requirements for due process” that Roberts and the Supremes’ majority ignore on a regular basis when rolling over for Trump toady Solicitor General Noel Francisco and his transparently fabricated “emergencies.” Francisco is another one whose disingenuous role and disregard for legal ethics in carrying out Trump’s wanton cruelty and human rights abuses should never be forgotten.
The damage caused by Roberts’s failure to lead and protect humanity isn’t legalistic or academic. It’s “real harm” to “real people.”
Let’s get “up close and personal” with what happens to individuals who fled to our country seeking only due process and fair and humane treatment, just to find Roberts’s and his Supremes’ immorality and warped sense of justice.
Here’s what Roberts’s complicity looks like:
The burns from the acid attack Elizabeth endured while she was kidnapped.The acid burned all the way through to the bone in Elizabeth’s left ankle. Courtesy of Elizabeth.Courtesy of Elizabeth Elizabeth’s acid burns.
That’s right folks. Torture, proudly presented to you by Chief Justice John Roberts and the majority of the United States Supreme Court. Who would have thought it could happen here? Like Judge Dannenberg, I spent a lifetime respecting the Supreme Court and even defending their decisions, including ones with which I disagreed. That has ended with the corruption, dishonesty, and inhumanity of the Roberts Court in the Age of Trump. Unworthy of America. Unworthy by of respect.
And here’s some narrative to go with it from Adolfo Flores over at BuzzFeed News:
Elizabeth left her home in Guatemala after being brutally beaten by the father of her daughter. She went to the police who refused to help her despite filing a complaint against him. The beatings in front of her daughter continued. Fearing that one day soon he’d kill her, Elizabeth left with her daughter.
“There’s a reason why there are so many femicides,” Elizabeth said.
The pair arrived near Ciudad Juárez in late July. She got off a bus she took with her daughter that was supposed to take them to Ciudad Juárez and got into what she believed was an Uber. She asked the driver to take her to the bridge that connects the city to El Paso. But as the city lights started to fade and the streets turned to desert and cliffs, Elizabeth realized the driver was taking her away from the city.
For about 12 days she was kept inside a dirty home, occasionally fed old food, and assaulted. Different men touched her genital area and licked her breasts in front of her daughter, according to documents provided by her attorneys. She wasn’t raped, but later had brownish discharge from her vagina she believes was the result of the men hurting her with an object or fingers.
Her attorneys said they believe the men were in the cartel, but don’t know for sure. They threatened to rape her and her daughter if she didn’t provide them with a number to call family for ransom. After days of holding her for ransom that her family couldn’t pay, the men threw chemical acid on her legs that resulted in second-degree burns. Despite closing her eyes and covering her ears, her then-10-year-old daughter could hear her mother’s screams, later telling Elizabeth she would never forget the sound of them.
At one point their kidnappers went outside and her daughter realized they left the door open. Elizabeth was too weak and in too much pain from the acid burns, but her daughter persisted.
“‘I don’t want them to kill us, torture us, or do something worse,'” Elizabeth recalled her daughter saying. “‘I can’t take this anymore, I feel like I’m going to die from sadness.'”
The pair ran from the house and were eventually chased by their kidnappers, armed with large black weapons, Elizabeth said. She fainted from the pain and heat, so her daughter ran ahead and flagged down police officers who called for help. A helicopter arrived shortly after to pick up Elizabeth.
Elizabeth woke up in a hospital and was discharged after seven days despite her left ankle still bleeding and with the bone exposed. Elizabeth said the hospital was overcrowded and didn’t have enough space, but believes she was discharged quickly because she was an immigrant and not a priority for the hospital’s staff.
She was taken to a shelter that was later closed due to bad conditions. At a second shelter, the director and staff helped cure her ankle — which smelled and cause her to fear she would get gangrene — with medication and topical creams because Elizabeth was too scared to venture outside.
In November, Elizabeth had recovered enough to walk, so she went with her daughter to the Arizona border and presented herself to CBP officers to request asylum. She told them about her attack and was taken to a hospital in Tucson to be medically screened. The doctor prescribed her medication to avoid infection. Then CBP sent her back to Ciudad Juárez.
On Jan. 31, Palazzo and other attorneys walked with her to a border crossing and asked that she be allowed to fight her case in the US. She was interviewed on the phone by the asylum officer who later said she failed.
While Elizabeth was in Ciudad Juárez, the shelter operators asked her if she could watch the door while they ran an errand. A shootout occurred shortly after between criminals and police near the shelter. Men who were running from the police ran up to the shelter’s doors and told Elizabeth to let them in. She faced them and refused, but they threatened to come back for revenge before running off.
Last week, a day before Elizabeth was due at a court hearing in El Paso, she was in the streets of Ciudad Juárez when one of her kidnappers approached her and recognized her. Filled with dread, Elizabeth and her daughter quickly made their way to the shelter to hide. Her fear then was that the men would come looking for her there.
The next day, on Friday, she went to her immigration court hearing in El Paso. She joined other immigrants in MPP who present themselves at the border in the predawn hours of the day to be transported to immigration court. Her plan was to ask for another non-refoulement interview, but that same morning, a federal appeals court blocked the Trump administration policy.
For the entire day, attorneys, immigrants, and advocates tried to understand what the 9th Circuit Court of Appeals’ order affirming a 2019 preliminary injunction meant for people stuck in Mexico, but also what would happen to those who had court hearings in the US that day, like Elizabeth. Sending them back would surely violate the judges’ order, some immigration attorneys said.
By Friday night, the 9th Circuit stayed its initial order blocking the Trump administration from enforcing MPP and the policy was allowed to continue. Still, Elizabeth and her daughter remained in CBP custody, and attorneys weren’t sure authorities were going to release her into the US.
She was interviewed three times about her fears of being sent back to Mexico. Her daughter told a US asylum officer about the nightmares she has, how she can’t sleep, and that she had trouble eating. Eventually, Elizabeth was told she passed her interview, was released Monday with an ankle monitor, and sent to reunite with family in Kansas.
Elizabeth was worried about the costs of continuing to receive medical care in the US for her acid burns, but she is determined to start a new chapter in her life.
“I’ve suffered a lot,” she said, “but for the first time in a long time, I feel safe.”
UPDATE
March 7, 2020, at 12:54 a.m.
This post was updated to include the more than 1,000 public reports of rape, torture, kidnapping, and other violence against immigrants sent back to Mexico.
There are lots of Elizabeths out there who have been silenced, some forever, by the likes of Roberts and other “unjust judges.” But, eventually, their stories will be told in all their grim and horrifying detail. At that point, folks like Roberts, Thomas, Alito, Kavanaugh, Gorsuch, and their enablers will attempt to “rewrite history,” to eschew moral and legal responsibility and shift the blame elsewhere with the “usual BS” like “just following the law,” “calling balls and strikes,” “just following orders.” Those are largely the same pathetic excuses offered by those who advanced the cause of human slavery, created Jim Crow, enabled genocide against Native Americans, and helped Hitler.
One of the most important tasks of the younger generation of the New Due Process Army is to bear witness and insure that J.R. & Co. don’t “get away with murder,” literally. Their job is to insure that the stories of those wronged by enablers of the Trump regime are heard loudly and clearly; to confront the complicit with the judgements of history; to insure that the descendantsof those who “stood small” and failed humanity know who their ancestors “really were” when the chips were down; and to make sure that history never again repeats itself in the form of John Roberts or anyone like him being allowed to hold positions of great trust and public responsibility in our judiciary.
Take a good like at the pictures above of Elizabeth’s legs and ankles. Those aren’t the results of somebody legitimately “just calling balls and strikes.” Roberts has “struck out.” Unfortunately, however, the rules allow him to continue to play the game to the detriment of our nation and human decency and the continued torment of those to whom he has willfully and inexcusably denied justice.
Due Process Forever; The Complicity of John Roberts, Never!
I Speak To Professor Gabriela Leon-Perez’s Class @ VCU, Professor Perez on my left, Richmond Attorney Pablo Fantl on my right Feb. 20, 2020
From VCU News:
Immigration course provides VCU students with a better understanding of a national issue
The sociology course, taught by Gabriela León-Pérez, examines the history of immigration and how the current debate ties to the past.
Gabriela León-Pérez’s class, Immigration and American Society, provides students with a more nuanced understanding of the current immigration debate. (Getty Images)
Immigration has always been a controversial topic in the United States. In the late 19th century, over 2 million Irish immigrated to the U.S. Most were Catholic and that created conflict with the largely Protestant U.S. population. The first comprehensive immigration law, the U.S. Immigration Act of 1882, contained provisions specifically designed to discourage European immigrants.
“This is not the first time the country has had anti-immigration policies, but the scapegoat group has changed over time,” said Gabriela León-Pérez, Ph.D., an assistant professor of sociology at Virginia Commonwealth University who studies immigration policy.
León-Pérez wanted to give her students an understanding of the current immigration debate so she developed a course called Immigration and American Society, which covers the history of immigration and immigration policy and examines where the current debate fits into the past.
“It presents students with a context on the state of immigration today,” León-Pérez said. “A lot of people have opinions about immigration but most of them are not based on facts.”
A class to cut through the noise
When designing the course, León-Pérez wanted to be able to address current events in the news. The course uses some textbooks, but it also incorporates podcasts and blogs. The goal is to have the discussion revolve around the current state of the immigration debate.
“It definitely evolves based on current events,” León-Pérez said. “The first time I taught it was 2018, and there have been a lot of changes since then.”
John Lees, a psychology major, believes the class has given him a better understanding of immigration history. The class specifically looks at the immigration policies of presidents Barack Obama and Donald Trump. Lees believes he now has a well-rounded perspective on the subject.
Yessica Flores, who is majoring in psychology and sociology, signed up for the class because she hears a lot of information about the subject and knew a class would help her cut through the noise.
“We are living in a world where the media is everywhere; where false news is frequent news,” Flores said. “I enrolled in the course with hopes of becoming educated in this area to help educate, inform and encourage others to better understand the reality of immigration within American society.”
As part of the class, León-Pérez teaches students how to find accurate information about immigration. The students learn to access official government data and other reliable sources. (Kevin Morley, University Marketing)
At the start of the class, León-Pérez teaches students how to find accurate information about immigration. The students learn to access official government data and other reliable sources.
“I try to present both sides of the debate,” León-Pérez said. “I want the students to have a well-rounded understanding of immigration and the debate. I don’t want them to shut down a side of the debate.”
Many students, she has observed, only understand the immigration debate from a particular vantage point. The class is a “light bulb” moment for them, and they realize that immigration is a complicated and nuanced topic. In general, immigration often comes down to economics, León-Pérez said. People against immigration are worried that new residents will take jobs, but people who support immigration say immigrants will do the type of work that many residents will not. Immigrants are looking for opportunity.
“Immigrants tend to complement American workers,” León-Pérez said. “Immigrants tend to work at lower-skilled jobs.”
Protecting due process
León-Pérez brings in guest speakers to enhance the curriculum. In February, she invited retired immigration judge Paul Schmidt. In previous semesters, León-Pérez has invited an immigration attorney as a guest speaker. This time, she wanted students to get the perspective of the person on the other side of the bench.
Schmidt served as an immigration judge from 2003 until he retired in 2016. Before that, he served on the U.S. Board of Immigration Appeals. Since retiring, he has been talking about the state of the immigration courts and the lack of due process given to asylum seekers.
“The immigration courts are going through an existential crisis,” Schmidt told the class.
He understands that people have different opinions about immigration, but the courts must follow a process that protects the due process rights of asylum seekers, he said. The court functions as a division of the Department of Justice and Schmidt believes it is not given the resources to function properly. Everyone within the justice system should share a common interest in seeing the courts functioning in a fair and equitable way, Schmidt said.
Retired immigration judge Paul Schmidt speaks to León-Pérez’s class. (Kevin Morley, University Marketing)
“The immigration court now is structured in such a way that it is nothing more than a whistle stop on the road to deportation,” he said.
Schmidt offered several suggestions to the students on ways to help people who are going through the immigration courts. Immigrants, unlike citizens, are not required to have an attorney. Many do not understand the immigration process. Schmidt said students could volunteer and help them navigate the complex immigration system in the United States.
“You can join the new due process army,” Schmidt said.
Flores said she has found the class to be informative, and has enjoyed the guest lecturers. The class has not necessarily changed her views about the subject but has motivated her to become more involved.
“I have always disliked the way the immigration cases have been handled, especially the ones involving immigrant children,” Flores said. “I must say that my feelings toward being more involved in promoting change and awareness have changed in the sense that I have developed a much greater interest in getting more involved in the form of a future career.”
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And, here’s some information about one of America’s most talented and innovative professors, Dr. Gabriela Leon-Perez, who brings her rich background and scholarly research combined with innovative “student-centered, real life” teaching methods to perhaps the most important and “undertaught” subject in undergraduate, secondary, elementary, and even adult education today! Her teaching incorporates fairness, scholarship, timeliness, teamwork, respect, and lots of self-direction by the students themselves.
Gabriela Leon-Perez Assistant Professor of Sociology Virginia Commonwealth University
2012 M.A. in Sociology, Texas A&M International University
Teaching Areas
Research Methods, Immigration, Health Disparities
Research Interests
International Migration, Internal Migration, Mexico-US Migration, Immigrant Health, Health Disparities
Biography
Gabriela León-Pérez is an Assistant Professor in the Department of Sociology at Virginia Commonwealth University. Her research focuses on Mexican internal and international migration, the experiences of immigrants in the United States, and health disparities.
The underlying goal of her research agenda is to clarify the role of social, structural, and contextual factors in creating health and social inequalities, as well as to identify resources that improve the outcomes of immigrants and other marginalized populations. In her most recent project, she investigated the health trajectories of return US migrants, internal migrants, and indigenous migrants from Mexico. Other on-going projects focus on Mexican skilled migration to the US and the effects of stress, legal status, and state immigrant policies on the health and well-being of immigrants. You can read more about her current work on her personal website.
Donato, Katharine M., Gabriela León-Pérez, Kenneth A. Wallston, and Sunil Kripalani. 2018. “Something Old, Something New: When Gender Matters in the Relationship Between Social Support and Health.” Journal of Health and Social Behavior 59(3):352-370.
Young, Maria-Elena, Gabriela León-Pérez, Christine R. Wells, and Steven P. Wallace. 2018. “More Inclusive States, Less Poverty Among Immigrants? An Examination of Poverty, Citizenship Stratification, and State Immigrant Policies.” Population Research and Policy Review 37(2):205-228.
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I’ll lay it on the line. If more Americans, and particularly more potential younger voters, had understood the true role of immigration and refugees in building America’s past and propelling us into an even greater future, and the dangers to them, their classmates, communities, friends, families, and colleagues posed by Trump’s race baiting “Build That Wall” and “Lock Her Up” chants – certainly pages out of the Third Reich and Jim Crow “playbooks,” – then the modest number of additional votes might well have been there to save lives (perhaps those of loved ones) and to preserve our democratic instiutions and justice system from the vicious and corrupt attacks being waged by the Trump regime, its allies, and its enablers.
We could be working together to build a better future for everyone in America, rather than engaged in a desperate struggle to save our nation and our world from authoritarianism, ignorance, wanton cruelty, and environmental and societal degradation. And, unfortunately, the “enablers” include those who don’t agree with Trump but failed to cast a vote for Clinton in the last election. Simple as that. Every vote counts. Elections have consequence. And, defeating Trump and his GOP in November could be our last clear chance to preserve America as a democratic republic!
Following the class, I did a Spanish language radio show with my good friend Pablo Fantl, Esquire, of Richmond, who was kind enough to translate for me.
Jessica Schulberg Politics & Extremist Groups Reporter HuffPost
Jessica Schulberg reports for HuffPost:
During his first address to the nation on the global coronavirus pandemic, President Donald Trump characterized COVID-19 as a “foreign virus” while touting his decision to institute travel restrictions with China and announcing plans to close the U.S. to visitors from most of Europe.
Meanwhile, he has been raked by critics — and the markets — for failing to thoroughly explain how the government plans to address the lack of tests and spiking number of cases across the U.S. His administration has for weeks downplayed the threat of the virus, even as experts warned it is on track to spread exponentially.
Trump clearly sees the novel coronavirus as just another foreign invader to keep out — a viewpoint reflected both in his policy proposals and the way he and his administration talk about the virus. This approach is in line with his overarching political strategy of exploiting Americans’ fears to justify racist, nativist policies.
“This is the most aggressive and comprehensive effort to confront a foreign virus in modern history,” Trump said Wednesday about his administration’s response while blaming the European Union for failing to take steps to prevent contagion. Several European countries have fewer cases of coronavirus per capita than the U.S.
It’s not just Trump. Health and Human Services Secretary Alex Azar repeatedly referred to the disease as the “China coronavirus” during a briefing last month. Anti-immigration zealot Rep. Paul Gosar (R-Ariz.) — who is in self-quarantineafter being exposed to coronavirus at the Conservative Political Action Conference in Maryland — has gone out of his way to describe the virus as the “Wuhan virus,” a reference to the location of the first outbreak.
When Gosar’s critics argued that the congressman shouldn’t spread racist stereotypes, Rich Lowry, the editor of the right-wing National Review, wrote an entire column insisting the illness be called the “Wuhan virus.” “China deserves to be connected to the virus that it loosed on the world,” he argued.
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For those who don’t know the history, the “Reichstag Fire” in 1933 was a pivotal step in the Nazi’s rise to power in Germany. At the time, Hitler blamed Communists. The actual cause of the fire has since been debated by historians: some say the Nazis started it themselves, while others say that it was an accident, or the act of a single arsonist.
Regardless of cause, all agree on the result. Hitler used it as a pretext to eradicate the constitution, punish the opposition, and place draconian authoritarian measures in place using the fiction of “national security.” This eventually led to the Holocaust and a World War that killed approximately 75 million.
Fact is that the coronavirus isn’t “foreign.” Viruses don’t possess or recognize nationality. Nor was it spread in the U.S. primarily by “foreigners.” Most cases initially reached the U.S. through U.S. citizens who took cruises or traveled abroad after the start of the virus abroad had been publicized.
Mexico, a frequent target of the Trump regime’s racism, has reported fewer than ten confirmed cases of coronavirus, as opposed to over 1,000 in the U.S. The Northern Triangle of Central America also appears to have avoided major outbreaks to date. On the other hand, the illegal and inhumane anti-asylum policies of the regime, as enabled by the Supremes and complicit Article III Courts, appear to present a realistic danger of spreading the virus to all of those countries which are ill-equipped to handle it.
The market as well as all medical experts recognized and reacted negatively to the idiocy of Trump’s Oval Office speech. The U.S. preparation, public education, and actual response to coronavirus has been one of the poorest and most inept in the world to date. To the extent that the U.S. has mitigated the disease, it has been largely the result of decisive actions by State Governors and local officials of both parties, although primarily Democrats, along with universities and sports leagues.
Expect Trump and his White Nationalists to use the danger to our public health that he didn’t cause, yet unnecessarily aggravated, as an excuse for more irrational, cruel, xenophobic, racist attacks on migrants. And, you can expect the “Chief of Complicity,” John Roberts, and his accomplices to continue to help promote Trump’s attack on human decency, truth, and our democratic institutions. John Roberts has never seen a transparently false “emergency” from Trump that he didn’t love or racism or religious bigotry so obvious that he would actually call it what it is.
Incompetent governance by a corrupt, selfish kakistocracy that promotes myths and conspiracy theories over truth, scientific knowledge, and the common good does not cause epidemics. But, it does unnecessarily aggravate them, hinder effective control, and gravely endanger the public health. It simple terms, it kills! Yet another reason why “regime change” in November might be America’s last chance for survival.
The coronavirus has surfaced perhaps the only competent high level official in the entire Trump Administration — Dr. Anthony Fauci. In case you haven’t noticed, there is no resemblance whatsoever between the scientific truth spoken by Dr. Fauci, who paints a honest but grim picture of the Administration’s half-assed efforts to date, and the unadulterated BS and party line spouted by Trump and the second most unqualified individual in the U.S. to handle a pandemic Mike “Super Sycophant” Pence. Talk about a “Confederacy of Dunces!” I’m just surprised that Trump hasn’t fired Fauci yet, given the well-known Trumpian aversion to all things true.
I’ve watched the smirking nitwit Rich Lowry of the National Review (too) many times on the “talking heads” where he is a favorite because he is one of the few Trump apologists who can put two consecutive sentences together in the English Language. Most of what he says is BS, but at least it’s comprehensible and reasonably articulate BS. And, despite the endless smirk, he isn’t as overtly rude and aggressively crude as most Trumpists. Jessica’s article confirmed my already low opinion of Rich. As Rome burns, by all means, let’s pontificate on what we should call the fire.
Kevin Euceda, a 17-year-old Honduran boy, arrived at the U.S.-Mexico border three years ago and was turned over to the custody of the Department of Health and Human Services until his request for asylum could be decided by immigration courts. During that period, he was required, as are all unaccompanied minors in custody, to meet with therapists to help him process what he had gone through.
In those sessions, Kevin was encouraged to speak freely and openly and was told that what he said would be kept confidential. So he poured out his story of a brutalized childhood, of how MS-13 gang members moved into the family shack after his grandmother died when he was 12, of how he was forced to run errands, sell drugs and, as he got older, take part in beating people up. When he was ordered to kill a stranger to cement his position in the gang, Kevin decided to run.
His therapists submitted pages of notes over several sessions to the file on him, as they were expected to do. But then, HHS officials — without the knowledge of the teen or the therapists — shared the notes with lawyers for Immigration and Customs Enforcement, who used them in immigration court to paint the young migrant as a dangerous gang member who should be denied asylum and sent back to Honduras. In sharing those therapy notes, the government did not break any laws. But it most assuredly broke its promise of confidentiality to Kevin, violated standard professional practices — the first therapist involved quit once she learned her notes had been shared — and offended a fundamental expectation that people cannot be compelled to testify against themselves in this country.
Kevin, whose story was detailed by the Washington Post, wasn’t the only unaccompanied minor to fall victim to such atrocious behavior, though how many have been affected is unknown. The government says it has changed that policy and no longer shares confidential therapy notes, but that’s not particularly reassuring coming from this administration. It adopted the policy once; it could easily do so again.
Last week, Rep. Grace F. Napolitano (D-Norwalk) and Sen. Jeff Merkley (D-Ore.) introduced the Immigrants’ Mental Health Act of 2020 to ban the practice, which is a necessary preventive measure. The bill would also create a new training regimen to help border agents address mental health issues among migrants and require at least one mental health expert at each Customs and Border Patrol facility. Both of those steps are worth considering too.
That the government would so callously use statements elicited from unaccompanied minors in therapy sessions to undercut their asylum applications is part of the Trump administration’s broad and inhumane efforts to effectively shut off the U.S. as a destination for people seeking to exercise their right to ask for sanctuary. Jeff Sessions and his successor as attorney general, William Barr, have injected themselves into cases at an unprecedented rate to unilaterally change long-established practices and immigration court precedent.
They have been able to do so because immigration courts are administrative and part of the Justice Department, not the federal court system, and as a result they have politicized what should be independent judicial evaluations of asylum applications and other immigration cases. Advocates argue persuasively that the efforts have undermined due process rights and made the immigration courts more a tool of President Trump’s anti-immigration policies than a system for measuring migrant’s claims against the standards Congress wrote into federal law.
Of course, trampling legal rights and concepts of basic human decency have been a hallmark of the administration’s approach to immigration enforcement — witness, for example, its separation of more than 2,500 migrant children from their parents. Beyond the heartlessness of the separations, the Health and Human Services’ inspector general last week blasted the department for botching the process. Meanwhile, the administration has expanded detention — about 50,000 migrants are in federal custody on any given day, up from about 30,000 a decade ago — and forced about 60,000 asylum seekers to await processing in dangerous squalor on Mexico’s side of the border.
There are legitimate policy discussions to be had over how this government should handle immigration, asylum requests and broad comprehensive immigration reform. In the meantime, no government has the right to treat people with such abject inhumanity. History will remember Trump for this, but it will also remember the people who enable such atrocious acts.
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The LA Times is ”on top” of the grotesque perversion of the Immigration “Courts” under nativist zealot Jeff “Gonzo Apocalypto” Sessions and Trump toady Billy Barr to carry out a White Nationalist political agenda:
They have been able to do so because immigration courts are administrative and part of the Justice Department, not the federal court system, and as a result they have politicized what should be independent judicial evaluations of asylum applications and other immigration cases.
Who’a NOT “on top” of what’s happening: The GOP-controlled U.S. Senate, Chief Justice Roberts, a number of his Supremely Complicit colleagues, and a host of Court of Appeals Judges who allow this unconstitutional travesty to continue to mock the Fifth Amendment and the rule of Law, while abusing and threatening the lives of legal asylum seekers every day!
With 2.5 Branches of our Government led by anti-democracy zealots and cowards, House Speaker Nancy Pelosi is our only remaining bulwark against tyranny! Capable as she is, she can’t do it all by herself!
In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.
— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)
How soon we forget!
Due Process Forever; Complicit Courts & Other Immoral Enablers, Never!
Lynn S. Adelman, a U.S. district judge in Milwaukee, has riled conservatives by publishing a blistering critique of the Supreme Court’s record under Chief Justice John G. Roberts Jr., focusing on a string of decisions that he argues have fostered “economic inequality,” “undermined democracy” and “increased the political power of corporations and wealthy individuals” at the expense of ordinary Americans.
Adelman also criticized President Trump, who he wrote ran as a populist but failed to deliver “policies beneficial to the general public. … While Trump’s temperament is that of an autocrat,” Adelman wrote, “he is disinclined to buck the wealthy individuals and corporations who control his party.”
The article by Adelman was all the more unusual because it went after the chief justice directly. Roberts, he said, was “misleading” in his 2005 confirmation hearing testimony when he pledged to be a passive “umpire” calling balls and strikes.
Adelman called that metaphor a “masterpiece of disingenuousness,” saying the court under Roberts “has been anything but passive” as its “hard right majority” has actively participated in “undermining American democracy.”
As president, Donald Trump has repeatedly accused federal judges of being political and beholden to the presidents who appointed them. (JM Rieger/The Washington Post)
The article, entitled “The Roberts Court’s Assault on Democracy,” is scheduled for publication in an unspecified forthcoming issue of the Harvard Law & Policy Review, which describes itself as the official publication of the liberal American Constitution Society. It was published in full at SSRN this month.
Adelman, appointed to the bench by President Bill Clinton in 1997, is a former Democratic state senator in Wisconsin and Legal Aid Society trial lawyer. Perhaps his best-known decision nationally was a 2014 ruling striking down Wisconsin’s voter ID law.
His broad critique of the Roberts court, with particular reference to its decisions on voting rights and campaign finance by corporate interests, is not an uncommon one — coming, that is, from liberal scholars or political leaders, including former president Barack Obama.
But coming from a sitting federal judge in a journal article accompanied by such a blunt attack on Roberts, not to mention Trump, it has attracted uncommon attention.
. . . .
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Read the complete article at the link.
So I’m not the only one to note the Chiefie’s “Taneyesque” performance, particularly on issues involving the rights of migrants, refugees, Muslims, and other persons of color. He has joined the regime in “Dred Scottifying” those with brown skins who are entitled to the protection of our Constitution and our laws, which Trump has eliminated without legislation, relying largely on transparently fraudulent “national security rationales.”
But, Roberts hasn’t been much good for African Americans or other minorities either, joining his right winger activist colleagues in disingenuously dismantling key parts of civil rights and voting rights protections and turning an intentionally blind eye to partisan gerrymandering carried out by the GOP to disenfranchise minorities. Election results get skewed and folks actually die as a result of these intentional miscarriages of justice to further a toxic right wing agenda aimed at destroying America’s democratic institutions, promoting inequality, and institutionalizing privilege. As Judge Adelman said “the transformation of the Supreme Court from what he described as a defender of ordinary people and ‘subordinated groups’ to an enabler of an ‘anti-democratic’ Republican agenda.” Right on, Judge A!
I also found this comment telling:
Adelman was unapologetic. “I think it’s totally appropriate to criticize the court when there’s a basis for it,” he said. “Judges are encouraged to comment on the law because we have a particular interest, knowledge and familiarity.”
Compare that with the “muzzling” of the Immigration Judiciary by the Executive reported recently on Courtside. https://immigrationcourtside.com/2020/03/03/🤡🤡clown-court-report-as-due-process-goes-into-death-spiral-regime-muzzles-immigration-judges/
And, as I constantly point out, the Immigration Courts aren’t “courts” at all. They are blatantly unconstitutional “star chambers” run by the Executive Branch with the complicity of the Article III Judiciary who see their work daily and know full well that they are often “rubber stamping” final orders sending folks into potentially life-threatening exile with only a transparently thin veneer of “due process.” But, according to Roberts and his gang, brown-skinned refugees aren’t entitled to even access this process in a reasonable manner, let alone receive the fair hearings to which they are entitled before being “orbited” to potential death in foreign lands. What if it were his wife and kids? I’ll bet their lives would get more consideration.
I also appreciate Judge Adelman’s “spotlighting” the disingenuous testimony of Roberts and other right wingers under oath before the Senate when they “feigned impartiality” to disguise their anti-democracy agenda (without, of course, losing the support of the rightest Republicans who were “licking their chops” at finally getting their long-awaited “judicial wrecking crew” in place).
As one of my esteemed Round Table colleagues said recently:“In the words of Balzac, ‘to distrust the judiciary marks the beginning of the end of society.’”
Unhappily, thanks to Roberts and other complicit Article IIIs, we’re there. Which is exactly how Trump and his supporters want it!
In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.
— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)
How soon we forget!
So much for the bogus ”passive “umpire” calling balls and strikes.”
Migrants are led back down Paso del Norte International Bridge in Ciudad Juarez, Mexico, last month after the United States refused them entry. (Paul Ratje/AFP/Getty Images)
The Supreme Court on Wednesday said the Trump administration may continue its “Remain in Mexico” policy for asylum seekers while lower-court challenges continue, after the federal government warned that tens of thousands of immigrants amassed at the southern border could overwhelm the immigration system.
The justices reversed a decision of a panel of the U.S. Court of Appeals for the 9th Circuit, which had ordered the policy be suspended Thursday on parts of the border. Justice Sonia Sotomayor was the only noted dissenter.
The Trump administration had warned the justices of a dire situation without their intervention.
“Substantial numbers of up to 25,000 returned aliens who are awaiting proceedings in Mexico will rush immediately to enter the United States,” Solicitor General Noel Francisco wrote in a brief. “A surge of that magnitude would impose extraordinary burdens on the United States and damage our diplomatic relations with the government of Mexico.”
The experimental U.S. policy requires migrants to wait in Mexico while their asylum claims are processed. (Luis Velarde/The Washington Post)
The program — officially known as the Migrant Protection Protocols, or MPP — is among the tools the Trump administration has used to curb mass migration from Central America and elsewhere across the southern U.S. border.
In the 13 months it has been in place, the government said, 60,000 migrants have been sent back into Mexico to await their U.S. asylum hearings, part of an effort to limit access to the United States and deter people from attempting the journey north.
The administration implemented the program last year, after more than 470,000 migrants — including parents and children — crossed into the United States illegally, with most quickly freed amid a massive immigration court backlog.
The American Civil Liberties Union, representing immigration groups and individuals, called it an “unprecedented policy that fundamentally changed the nation’s asylum system, contrary to Congress’s design and the United States’ treaty obligations.”
A panel of the U.S. Court of Appeals for the 9th Circuit last month issued an injunction against the policy along the borders of California and Arizona, states within the court’s authority.
Judges William A. Fletcher and Richard A. Paez, both appointed by President Bill Clinton, agreed with a lower-court judge in California that MPP probably violated federal immigration law by ousting undocumented asylum seekers who should be allowed to apply for protection in the United States.
The judges also said the program probably violated the administration’s “non-refoulement” obligations under international and domestic law, which prohibit the government from sending people to countries where they face danger. The 57-page ruling cited asylum seekers who feared kidnapping, threats and violence in Mexico.
“There is a significant likelihood that the individual plaintiffs will suffer irreparable harm if the MPP is not enjoined,” Fletcher wrote in the opinion. “Uncontested evidence in the record establishes that non-Mexicans returned to Mexico under the MPP risk substantial harm, even death, while they await adjudication of their applications for asylum.”
Judge Ferdinand F. Fernandez, a President George H.W. Bush appointee, dissented, arguing that the panel should have adhered to a prior appeals court decision that allowed MPP to take effect.
The Supreme Court’s action marks another case in which the Trump administration has asked the high court to immediately intervene after an adverse ruling from a regional appeals court.
The court on a 5-to-4 vote in January allowed the administration to begin implementing new “wealth test” rules making it easier to deny immigrants residency or admission to the United States because they have used or might use public-assistance programs.
Maria Sacchetti contributed to this report
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So much for human dignity, our Constitution, and the rule of law. How many will die because of the Supreme’s dereliction of duty before we finally get regime change? Of course, the Supremes haven’t shown much interest in voting rights and fair elections either.
The immigration policies executed by the Trump administration have been, to be succinct, f***ed up. That’s not even just me saying that. The people who have to execute his policies are saying it too.
The New York Times reports that a union of federal asylum workers has filed an amicus brief stating that a policy from the Trump Administration that diverts migrants to Guatemala is unlawful. The union, National CIS Council 119, represents 700 asylum and refugee officers of the United States Citizenship and Immigration Services. The brief states that international treaty obligations are being violated as a result of having to deport migrants to a country where they will likely face prosecution. The Trump administration made a deal with Guatemala that allows the United States to deport migrants seeking asylum in the States to Guatemala. The union believes that these new rules are forcing them to violate the laws they were trained to uphold.
. . . .
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Read the complete report at the link.
HEROES & ENABLERS — Judges Who Aid The Trump Regime’s Deadly Oppression Of The Most Vulnerable Among Us Will Eventually Hear The Voices Of Those They Abandoned & Dehumanized — Even From The Graves Of The Oppressed, History Will Pass Judgement On The Smugly Powerful Who Abuse The Weak!
By Paul Wickham Schmidt
Courtside Exclusive
March 9, 2020
USCIS Asylum Officers are the “NDPA Heroes of the Week!”
So, one group of courageous civil servants is willing to put their careers on the line to defend the Constitution and the rights of the vulnerable. But, others in more protected positions, like, for example, Supreme Court Justices and some Court of Appeals Judges, are afraid to stand up to Trump and defend the rule of law and the humanity of those whose only “crime” is to trust in our legal protection system. The courage of one group contrasts with the willful ignorance and cowardly complicity of the other. What’s wrong with this picture?
At some point, there will be “regime change” in the Executive as well as the Senate. When that happens, our system needs a complete re-examination of the immigration scholarship, commitment to human rights, and the moral leadership of those we are giving lifetime appointments to the Federal Bench, particularly the Supremes.
Obviously, the system has failed when two current justices choose to use their power and privileged positions disingenuously to rail about the “bogus horrors” of nationwide injunctions, and thereby spur the regime on to even grater abuses, while papering over the real issue of the actual grotesque legal, constitutional, and human rights violations inflicted on migrants and others by a White Nationalist would-be authoritarian regime that would eventually do away with almost all of our legal rights.
In the future, perhaps we should consider elevating more Asylum Officers with law degrees and a record of fair adjudication and speaking truth to power to the Article III Judiciary, including the Supremes. There are younger members of our Round Table of Former Immigration Judges who were forced by the regime into “early retirement” who could bring scholarship, fairness, practicality, and justice back to the Article IIIs. How about some pro bono lawyers, clinical professors, and NGO leaders who combine scholarship with real life experience and whose proven creativity and problem solving skills far exceed the pedestrian and wooden approaches we see all too often from today’s failing Article III Judiciary. Although their efforts are mocked, disrespected, and undermined by complicit Article III Judges, like the “J.R. Five,” these courageous “defenders of democracy and the rights of the weak” are the ones who are in fact keeping our legal system afloat in the face of Article III willful ignorance and complicity in tyranny.
And, we definitely need fewer corporate lawyers (except those who have extensive pro bono immigration/human rights experience), prosecutors, and right wing “think tankers” occupying the Federal bench.We have an oversupply of those folks on the bench right now, and our rights are suffering for it. It will take years, perhaps decades, to repair the damage they are causing and to bring the Federal Judicial system back into a proper balance.
These aren’t “liberal/conservative philosophical questions.” They are black and white questions of moral courage and the willingness to enforce Due Process and protect those whose lives are endangered by the Trump regime’s cruel and lawless programs and constant racially-inspired lies, naked bias, and misrepresentations. Sending folks back to dangerous countries without functioning asylum systems is wrong as a matter of law. Period. Making them “Remain in Mexico” is wrong. Period. A so-called “court system” run by a transparently biased, disingenuous, “uber enforcement” official like Billy Barr does not provide the “fair and impartial adjudications” required by Due Process. Period. Separating families and putting kids in cages and “kiddie gulags” is wrong. Period. Those initiating and carrying out those policies should be chastised and held accountable, not enabled. Period.
Actually, many courageous and scholarly U.S. District Judges have gotten these straightforward legal questions exactly right and promptly entered life-saving injunctions. A number of U.S. Immigration Judges have also courageously adhered to the rule of law in the face of excruciating and unethical pressure from DOJ politicos and their toadies to cut corners and railroad individuals out of the country without due process.
It’s the Supremes and too many Circuit Court Judges who who have “rolled over” for the regime’s cruel and inhuman nonsense. By doing so, they essentially “pull the rug” out from under those judges who have the encourage and integrity to “just say no” to the regime’s constant overreach. In doing so, the Federal Appellate Courts and the Supremes are actually engaging in undermining the system they serve and encouraging “worst practices” and even worse results. What truly reprehensible “role models” for upcoming lawyers. Fortunately, many newer lawyers are members of the New Due Process Army and are ignoring the poor and immoral examples of judicial spinelessness set by their supposed “elders.”
Life tenure protects the jobs and paychecks of Article III Judges. But, it won’t protect them from justified criticism and the ultimate judgement of history. Bashing the oppressed in behalf of those in power might seem like a good short-term strategy. After all, the deported, the abused, and the dead don’t normally get to “write history.”
But others are watching this travesty unfold and are pledged to “give a voice” to those silenced by the gross dereliction of legal duties and ignoring simple human decency and values by many with power who could have put an end to these obscene human rights abuses. Chief Justice Roger Taney might have been hailed by the White Supremacists of his age for his opinion in Dred Scott. But, he hasn’t “weathered the test of time” too well! Nor will Chief Justice Roberts and others who have been “going along to get along” with cruel and illegal abuses wantonly inflicted by the White Nationalist regime on the most needy and vulnerable among us.
Congrats and much appreciation from all of us in the New Due Process Army to USCIS Asylum Officers for your courage and integrity in the face of tyranny!
Due Process Forever; Complicity & Enabling Cruelty Never!
WITH CHARACTERISTIC bombast, the White House denounced a federal court ruling the other day that threatens the administration’s policy of shifting migrants across the border into Mexico while they await the outcome of their asylum claims. The ruling, said press secretary Stephanie Grisham, could “reignite the humanitarian and security crisis at the border.”Too late, Ms. Grisham. As a direct result of the administration’s policy, known as Remain in Mexico, a full-blown humanitarian and security crisis already has been raging at the border since last spring. But since the victims, violence and costs of that crisis happen to be just south of the border — sometimes nearly within view of it — U.S. officials have successfully averted their eyes. To the Trump administration, a crisis of its own making is out of sight and therefore must not exist.
Sadly, it does exist. Some 60,000 migrants, mainly from Central America, have been returned by U.S. officials to Mexico over the past year to await adjudication of their asylum claims. Many have given up. Those who remain, stranded in squalid shelters and tent camps along the frontier, are easy prey for Mexican crime cartels. More than 1,000 reported cases of kidnapping, rape torture and other violent crimes targeting migrants waiting in Mexico have been documented by Human Rights First, an advocacy group. Independent journalists have also confirmed such cases, often involving Mexican criminals who use the migrants as leverage for ransom demands aimed at their relatives at home or in the United States.
The mass victimization of asylum seekers runs afoul of U.S. law and this country’s treaty obligations, which prohibit subjecting asylum seekers to such risks. “Uncontested evidence in the record establishes that [migrants returned to Mexico under the administration’s policy] risk substantial harm, even death, while they await adjudication of their applications for asylum,” wrote Judge William A. Fletcher of the U.S. Court of Appeals for the 9th Circuit, which ruled against the policy but let it stand pending further appeals.
. . . .
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Read the complete editorial at the above link.
It’s great to be on the right aside of history here. But, it would be better to make history by getting essential “regime change” in November – across the board.
Filed clerk order (Deputy Clerk: AF): The panel previously ordered that argument for the above-captioned cases would proceed with Diaz-Reynoso v. Barr, No. 18-72833 being argued first. The panel supplements its previous order for argument in this first case, as follows: Petitioner will argue, reserving time for rebuttal if desired, then Amicus Curiae The Center for Gender and Refugee Studies will argue, then Respondent will have an opportunity to respond to both Petitioner and the Amicus, and finally Petitioner may use any time reserved for rebuttal. Additionally, Respondent should be prepared to address the arguments raised by Amici Curiae Thirty-Nine Former Immigration Judges and Members of the Board of Immigration Appeals. [11616996] [18-72833, 18-72735, 18-73434, 19-70489] (AF)
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Great to know that at least some Article IIIs are paying attention. We can only hope that they will act on our expert views and save some very deserving and highly vulnerable lives. Of course, we couldn’t have gotten this far without the amazing pro bono team over at Gibson Dunn!
Brent Kendall and Alicia Caldwell report for the WSJ:
A federal appeals court for now agreed to narrow the effect of its recent ruling that blocked a Trump administration policy of returning immigrants at the southern U.S. border to Mexico while their requests for asylum are considered.
The San Francisco-based Ninth U.S. Circuit Court of Appeals, in an order issued Wednesday, said it ruled correctly last week that the administration’s “Remain in Mexico” policy is unlawful. But the court acknowledged the “intense and active controversy” over nationwide injunctions against administration policies and said it would limit its ruling for now to the two border states within its jurisdiction: Arizona and California.
. . .
The Ninth Circuit also said none of its ruling would go into effect until March 12, to give the Trump administration a week to ask the Supreme Court for an emergency stay to keep the policy in place every-where for the time being.
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The plaintiffs have already “won” this case about the regime’s unlawful actions twice. But, they are yet to get any meaningful relief. Instead, folks continue to suffer and be irreparably harmed while the wheels of justice slowly grind.
Hon. Randy Moss U.S. District Judge Washington, DCRandy Moss NFL Hall of Fame Wide Receiver (Todd Buchanan / Pioneer Press)“Cooch Cooch” Rewrites America’s Welcoming Message for White Nationalist Nation
L.L.-M. V. Cuccinelli, D. D.C. (Judge Moss), 03-01-20
U.S. District Judge Randy Moss (not to be confused with the NFL hall of fame receiver, one-time “bad boy,” and now commentator of the same name) ruled that Cooch Cooch was illegally appointed to his position of Acting Director of USCIS, thereby invalidating some of his written anti-asylum directives aimed at denying fair processing during the credible fear process and perhaps killing brown-skinned asylum seekers.
KEY QUOTE FROM JUDGE MOSS’S OPINION:
The Court concludes that it has jurisdiction over Plaintiffs’ challenges to the reduced-time-to-consult and prohibition-on- extensions directives and that it lacks jurisdiction over Plaintiffs’ challenge relating to the in- person-orientation directive. The Court also concludes that Cuccinelli was not lawfully appointed to serve as the acting Director of USCIS and that, accordingly, the reduced-time-to- consult and prohibition-on-extensions directives must be set aside as ultra vires under both the FVRA, 5 U.S.C. § 3348(d)(1), and the APA, 5 U.S.C. §706(2)(A). Finally, the Court sets aside the individual Plaintiffs’ negative credible-fear determinations and expedited removal orders and remands to USCIS for further proceedings consistent with this decision.
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Although only tangental to the actual result reached by Judge Moss, his detailed description of how the regime has unconstitutionally and immorally skewed the credible fear process to screw asylum seekers, largely based on their race, as opposed to acting in good faith to insure that needed protection is granted under U.S. law without regard to political pandering or racial bias, should outrage every American. It also points out how, even though this has been going on since June 2019, and thousands of individuals’ lives have been endangered by this illegal and immoral action, Federal Courts are only now beginning to “scratch the surface” of the regime’s invidious assault on asylum seekers from south of our border.
Indeed, in a move likely to warm the hearts (if, in fact, they have such organs) of Trumpist Judges like Gorsuch and Thomas, Judge Moss limited his order to the five individual named plaintiffs rather than entering the highly controversial, yet totally justified in cases like this, “nationwide injunction.” That means that thousands of similarly situated individuals who were screwed by Cooch Cooch’s scofflaw behavior will have to sue individually to get the law properly applied to them. That assumes that they are still alive and able to sue.
While the decision correctly points to numerous serious defects in the regime’s operation of USCIS, the practical effects might remain small. The regime can always seek to have it undone by the D.C. Circuit or the compliant “J.R. Five” on the Supremes. They also should be able to find some Senate-confirmed politico who was on duty on June 1, 2019 and simply have Trump appoint him or her “acting” and order them to re-issue Cooch’s “Miller-approved” White Nationalist directives on pain of dismissal. Surely, there is never a shortage of toadies among Trump’s gang of sycophants.
Clearly, the only real way to save our democracy and save the lives we should be saving is to vote for regime change, at all levels, this November. Otherwise, we might all find ourselves “Cooched” at some point in the future!
For now, maybe “Cooch Cooch” should be required to join his fellow “illegals” fighting for their existence in squalor and cruel and inhumane conditions under bridges and on street corners on the Mexican side of the border! Or, perhaps he should be “orbited” to Guatemala, El Salvador, or Honduras to pursue his claims from there! One truly scary thing: “Cooch Cooch” was actually once the top “legal” officer of the Commonwealth of Virginia, serving a purely awful term as Attorney General. Thankfully, we Virginia voters had the good sense to send him packing when he ran for Governor!
Innovation Law Lab v. Wolf, 9th Cir., 02-28-20, published
PANEL:Ferdinand F. Fernandez, William A. Fletcher, and Richard A. Paez, Circuit Judges.
OPINION BY:Judge William A. Fletcher
DISSENTING OPINION:Judge Ferdinand F. Fernandez
KEY QUOTE FROM MAJORITY:
In addition to likelihood of success on the merits, a court must consider the likelihood that the requesting party will
INNOVATION LAW LAB V. WOLF 49
suffer irreparable harm, the balance of the equities, and the public interest in determining whether a preliminary injunction is justified. Winter, 555 U.S. at 20. “When the government is a party, these last two factors merge.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).
There is a significant likelihood that the individual plaintiffs will suffer irreparable harm if the MPP is not enjoined. Uncontested evidence in the record establishes that non-Mexicans returned to Mexico under the MPP risk substantial harm, even death, while they await adjudication of their applications for asylum.
The balance of equities favors plaintiffs. On one side is the interest of the Government in continuing to follow the directives of the MPP. However, the strength of that interest is diminished by the likelihood, established above, that the MPP is inconsistent with 8 U.S.C. §§ 1225(b) and 1231(b). On the other side is the interest of the plaintiffs. The individual plaintiffs risk substantial harm, even death, so long as the directives of the MPP are followed, and the organizational plaintiffs are hindered in their ability to carry out their missions.
The public interest similarly favors the plaintiffs. We agree with East Bay Sanctuary Covenant:
On the one hand, the public has a “weighty” interest “in efficient administration of the immigration laws at the border.” Landon v. Plasencia, 459 U.S. 21, 34 (1982). But the public also has an interest in ensuring that “statutes enacted by [their] representatives”
50 INNOVATION LAW LAB V. WOLF
are not imperiled by executive fiat. Maryland v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J., in chambers).
932 F.3d at 779 (alteration in original).
VII. Scope of the Injunction
The district court issued a preliminary injunction setting aside the MPP—that is, enjoining the Government “from continuing to implement or expand the ‘Migrant Protection Protocols’ as announced in the January 25, 2018 DHS policy memorandum and as explicated in further agency memoranda.” Innovation Law Lab, 366 F. Supp. 3d at 1130. Accepting for purposes of argument that some injunction should issue, the Government objects to its scope.
We recognize that nationwide injunctions have become increasingly controversial, but we begin by noting that it is something of a misnomer to call the district court’s order in this case a “nationwide injunction.” The MPP operates only at our southern border and directs the actions of government officials only in the four States along that border. Two of those states (California and Arizona) are in the Ninth Circuit. One of those states (New Mexico) is in the Tenth Circuit. One of those states (Texas) is in the Fifth Circuit. In practical effect, the district court’s injunction, while setting aside the MPP in its entirety, does not operate nationwide.
For two mutually reinforcing reasons, we conclude that the district court did not abuse its discretion in setting aside the MPP.
INNOVATION LAW LAB V. WOLF 51
First, plaintiffs have challenged the MPP under the Administrative Procedure Act (“APA”). Section 706(2)(A) of the APA provides that a “reviewing court shall . . . hold unlawful and set aside agency action . . . not in accordance with law.” We held, above, that the MPP is “not in accordance with” 8 U.S.C. § 1225(b). Section 706(2)(A) directs that in a case where, as here, a reviewing court has found the agency action “unlawful,” the court “shall . . . set aside [the] agency action.” That is, in a case where § 706(2)(A) applies, there is a statutory directive—above and beyond the underlying statutory obligation asserted in the litigation—telling a reviewing court that its obligation is to “set aside” any unlawful agency action.
There is a presumption (often unstated) in APA cases that the offending agency action should be set aside in its entirety rather than only in limited geographical areas. “[W]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that rules are vacated—not that their application to the individual petitioners is proscribed.” Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F3d 476, 511 (9th Cir. 2018) (internal quotation marks omitted). “When a court determines that an agency’s action failed to follow Congress’s clear mandate the appropriate remedy is to vacate that action.” Cal. Wilderness Coalition v. U.S. Dep’t of Energy, 631 F.3d 1072, 1095 (9th Cir. 2011); see also United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019) (“The ordinary practice is to vacate unlawful agency action.”); Gen. Chem. Corp. v. United States, 817 F.2d 844, 848 (D.C. Cir. 1987) (“The APA requires us to vacate the agency’s decision if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .”).
52 INNOVATION LAW LAB V. WOLF
Second, cases implicating immigration policy have a particularly strong claim for uniform relief. Federal law contemplates a “comprehensive and unified” immigration policy. Arizona v. United States, 567 U.S. 387, 401 (2012). “In immigration matters, we have consistently recognized the authority of district courts to enjoin unlawful policies on a universal basis.” E. Bay Sanctuary Covenant, 932 F.3d at 779. We wrote in Regents of the University of California, 908 F.3d at 511, “A final principle is also relevant: the need for uniformity in immigration policy. . . . Allowing uneven application of nationwide immigration policy flies in the face of these requirements.” We wrote to the same effect in Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017), rev’d on other grounds, 138 S. Ct. 2392 (2018): “Because this case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights.” The Fifth Circuit, one of only two other federal circuits with states along our southern border, has held that nationwide injunctions are appropriate in immigration cases. In sustaining a nationwide injunction in an immigration case, the Fifth Circuit wrote, “[T]he Constitution requires ‘an uniform Rule of Naturalization’; Congress has instructed that ‘the immigration laws of the United States should be enforced vigorously and uniformly’; and the Supreme Court has described immigration policy as ‘a comprehensive and unified system.’” Texas v. United States, 809 F.3d 134, 187–88 (5th Cir. 2015) (emphasis in original; citations omitted). In Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017), we relied on the Fifth Circuit’s decision in Texas to sustain the nationwide scope of a temporary restraining order in an immigration case. We wrote, “[W]e decline to limit the geographic scope of the TRO. The Fifth Circuit has held that such a fragmented immigration policy would run afoul of the
INNOVATION LAW LAB V. WOLF 53 constitutional and statutory requirement for uniform
immigration law and policy.” Id. at 1166–67. Conclusion
We conclude that the MPP is inconsistent with 8 U.S.C. § 1225(b), and that it is inconsistent in part with 8 U.S.C. § 1231(b). Because the MPP is invalid in its entirety due to its inconsistency with § 1225(b), it should be enjoined in its entirety. Because plaintiffs have successfully challenged the MPP under § 706(2)(A) of the APA, and because the MPP directly affects immigration into this country along our southern border, the issuance of a temporary injunction setting aside the MPP was not an abuse of discretion.
We lift the emergency stay imposed by the motions panel, and we firm the decision of the district court.
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At last, a breath of justice in halting, at least temporarily, an outrageously illegal program that is also a grotesque violation of our national values and humanity. Unfortunately, it has already resulted in thousands of injustices and damaged many lives beyond repair. That’s something that a clueless shill for authoritarianism, wanton cruelty, and abrogation of the rule of law like dissenting Judge Fernandez might want to think about.
But, hold the “victory dance.” The regime will likely seek “rehearing en banc,” appealing to other enablers of human rights atrocities like Fernandez. And, if the regime fails there, they always can “short circuit” the legal system applicable to everyone else by having Solicitor General Francisco ask his GOP buddies on the Supremes, “The JR Five,” to give the regime a free pass. As Justice Sotomayor pointed out, that type of “tilt” has already become more or less “business as usual” as the regime carries out its nativist, White Nationalist immigration agenda. Indeed, Justices Gorsuch and Thomas have already announced their eagerness to carry the regime’s water for them by doing away with nationwide injunctions, even though they are the sole way for doing justice in immigration cases like this.
But, at least for today, we can all celebrate a battle won by the New Due Process Army in the ongoing war to restore our Constitution, the rule of law, and human dignity.
But early one morning, she kissed her sleeping son goodbye. She had spent the night watching him in his bed. It was almost his 10th birthday.
“Fue el peor momento de mi vida,” Bárbara said. It was the worst moment of my life.
It had been nearly a year since Bárbara had been left for dead outside her clothing store, a victim of the Nicaraguan government’s bloody campaign to silence pro-democracy protests that rose up in 2018.
She knew she had to flee, but she didn’t think she could protect her son on the notorious migrant trail. She wasn’t willing to risk him.
So the 29-year-old entrepreneur escaped north alone, putting herself at the mercy of the U.S. asylum system — a system meant to protect the world’s most vulnerable.
RETURNED: PART I
The first in an occasional series in which the Union-Tribune explores the asylum system through the eyes of people who experience it firsthand, with drastically different outcomes.
The San Diego Union-Tribune is not fully identifying Bárbara or many of the witnesses interviewed in Nicaragua because of the danger that the government might retaliate against them or their families.
Bárbara is in Tijuana, one of tens of thousands of people waiting for a chance to argue for protection in the United States, part of a changing wave of migration that the Trump administration has labeled a crisis.
She exists in a constant state of uncertainty, and she realizes now just how much she underestimated the challenges that still lie ahead.
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For Kate’s full article including the “original formatting” and all of the great pictures and graphics accompanying it, click on the above link that will take you to the original article on the San Diego Union-Tribune website!
Thanks, Kate, for so beautifully capturing the “heart and soul” of the refugee experience and why the Trump regime’s intentionally cruel, illegal, immoral, and dehumanizing policies are undermining our humanity as a nation and everything we should stand for. These are human lives at stake, not “numbers,” “beds,” or “apprehensions.” Success is measured in lives saved, and fair treatment of all, not “numbers turned back” or how we can “discourage” or “deter” others from seeking refuge. Our legal system should be fair and impartial, not a “weaponized tool” for nativist immigration enforcement policies. Indeed, it supposedly is there too protect all of us against such political overreach and abuses.
Interestingly, there was a time in the past when the GOP and the Reagan Administration went out of its way to help and give refuge to those Nicaraguans fleeing the Sandinistas and Daniel Ortega. The Nicaraguan and Central American Relief Act (“NACARA”), one of the best, most effective, and most efficient pieces of immigration legislation ever passed, was a result of bipartisan support for providing permanent relief to Nicaraguans, El Salvadorans, and Guatemalans fleeing the mess in Central American that our Government played a significant role in creating. Some off those fleeing Cuba and Eastern Europe also were covered. Now, under the influence of Trump, neo-fascist Stephen Miller, and the rest of the White Nationalist nativist gang, this GOP-led regime simply turns its back on vulnerable refugees like Barbara, the human carnage resulting from Ortega’s misrule of Nicaragua.
Perhaps in the future, Kate will put it all together in a book. Hope so!
The trauma Donald Trump’s administration caused to young children and parents separated at the US-Mexico border constitutes torture, according to evaluations of 26 children and adults by the group Physicians for Human Rights (PHR).
The not-for-profit group’s report provides the first in-depth look at the psychological impact of family separation, which the US government continued despite warnings from the nation’s top medical bodies.
“As a clinician, nobody was prepared for this to happen on our soil,” the report co-author Dr Ranit Mishori, senior medical adviser at PHR, told the Guardian. “It is beyond shocking that this could happen in the United States, by Americans, at the instruction and direct intention of US government officials.”
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Legal experts have argued family separation constituted torture, but this is the first time a medical group has reached the determination.
PHR volunteer psychiatrists evaluated 17 adults and nine children who had been separated between 30 to 90 days. Most met the criteria for at least one mental health condition, including post-traumatic stress disorder, major depressive disorder or generalized anxiety disorder “consistent with, and likely linked to, the trauma of family separation”, according to the report.
Not only did the brutal family separation policy create trauma, it was intensified by the families’ previous exposure to violence on their journey to the US and in their home countries of Honduras, Guatemala and El Salvador.
All but two of the adults evaluated by PHR said they had received death threats in their home countries and 14 out of the 17 adults said they were targeted by drug cartels. All were fearful their child would be harmed or killed if they remained at home.
Almost all the children had been drugged, kidnapped, poisoned or threatened by gangs before they left. One mother told investigators she moved her daughter to different schools in El Salvador several times so gang members couldn’t find her and kill her.
In the face of these threats, parents tried to move within the country, change their phone numbers, meet extortion demands and go silent on social media. Ultimately, however, the report said: “Parents were confident that the journey to the United States would result in protection for their children.”
This is not what happened at the border.
The Trump administration instituted a policy in April 2018 that formally enabled the mass separation of children and parents at the US-Mexico border. Trump ended the policy in June 2018, but it has since been revealed that the administration separated thousands of families before and after the policy was in place.
There was also no system to reunite the families, according to an internal government watchdog. The Trump administration also ignored warnings from the nation’s leading medical organizations that family separation would traumatize children and adults.
How Trump’s immigration policies hurt people’s lives – in pictures
People who experience trauma, especially as children, have higher rates of medical conditions such as cancer and cardiovascular disease. They also have an increased risk of psychiatric disorders and detrimental coping behaviors such as alcohol and drug abuse.
“Something like that does not just resolve once you’re reunified with your parents, it’s something you carry with you possibly forever,” Mishori said.
One Honduran father described how badly his son reacted the four times a psychologist came to their apartment for treatment in the report: “Each time the son would refuse to cooperate and would throw things at the therapist … It appears his son was afraid of strangers, afraid they will take him away from his father.”
Kathryn Hampton, a senior officer in PHR’s asylum program, said the group PHR had assessed was small but represented separated families from different detention centers and foster homes across the country over a two-year period.
“This is a really disparate group of people and yet their stories are practically identical,” said Hampton. “So that’s very disturbing, to see that level of consistency.”
Amid the despair, PHR has seen an outpouring of support in money and volunteers. Hampton said since the beginning of 2018, its Asylum Network had more than doubled to 1,700 clinicians who provide free medical and psychological evaluations to asylum seekers. There were also three times as many medical school clinics partnering with the organization in that period.
Dr Stuart Lustig, a California-based psychiatrist and longtime volunteer, evaluated a seven-year-old girl from Guatemala. He said when he and the girl did a common evaluation tool called the Squiggle Test, she had one of the more inhibited reactions he had seen in 20 years.
“These kinds of separations were filled with uncertainty, there was no information about where people are going, so it is not surprising at all that these separations ended up being extremely traumatizing for kids and parents,” Lustig said.
In November, a federal court ordered the US to compensate for the trauma separated families faced at the hands of the government. Lustig said there were many treatment options for children who experienced this deep level of trauma in the US, but he and PHR were concerned about how these families would have access to them.
Lustig said: “Part of the work is simply building trust in humanity again.”
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We are diminishing ourselves as a nation; but, in the end, it won’t stop human migration. While the purpose of torture is dehumanization and degradation of the “other,” torture actually increases the humanity of its victims while dehumanizing the torturers and their enablers.
It’s also worthy remembering the next time “Big Mac With Lies,” Nielsen, Kelly, ”Gonzo” Sessions and other noted torturers want to “clean up their images” and capitalize on their misdeeds by speaking to an organization to which you belong or attend. Remember who they REALLY are beneath their facades: unpunished perpetrators of “Crimes Against Humanity.”
Kevin has already posted about Baby Jails, the new book from immprof Philip G. Schrag (Georgetown) that explores the detention of migrant children.
I write today as someone who recently devoured this book. Let me start by telling you two things about myself: I hate flying and I am not much of a fan of nonfiction books. Combining these two things, I tend to read a riveting YA novel while flying in an effort to distract myself from how many feet I am unnaturally suspended above the earth’s surface. Yet I recently read Schrag’s book over the course of 3 flights. It was utterly engrossing.
The book is jam-packed with law and yet manages to read like a narrative. You get a feel for characters (Jenny Flores, certain attorneys and judges) and find yourself rooting from the sidelines even as you know victories will frequently fail to live up to their promise.
The book included numerous vignettes and insights that were entirely new to me. For example, did you know Ed Asner was responsible for Flores’ legal representation? Yes, the grumpy old man from Pixar’s Up set out to help his housekeeper’s daughter who was housed with Flores and connected the young women with Peter Schey, founder of the National Center for Immigrants’ Rights (now the Center for Human Rights and Constitutional Law).
Here’s another one: Leon Fresco represented the government in a 2015 lawsuit brought by Schey to enforce the Flores settlement — arguing that the settlement didn’t apply to children traveling with parents and that the agreement was “no longer equitable.” Leon Fresco! I wrote about him a few years back — he was a key player in the failed 2013 comprehensive immigration reform led by the Gang of Eight.
I’m also impressed by how comprehensive the book is. I recently spoke to a friend who is on the cusp of publishing a book and we talked about how, at some point in the writing process, the publisher will charge by the word for additions of any kind. Yet Schrag’s book must have been edited and added upon right up until the last moment of publication. There is nothing of current import that is left behind (remain in Mexico, asylum cooperation agreements, third country transit).
This book is marvelous. A tour de force. I recommend it to everyone — even terrified flyers. Instead of gasping at every bump in the jet stream you’ll be scribbling away in the margins, furious at what our nation has done to children in the name of immigration enforcement.
-KitJ
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Thanks, Phil & KitJ, my friends and colleagues. Both of you are amazing inspirations to all of us in the “New Due Process Army.”
The Trump regime seeks to take child abuse many steps further to effectively “repeal by administrative fiat” all asylum protection laws, to insure that as many families and children as possible suffer, die. or are forced to remain in life-threatening conditions outside the U.S., and to abandon any effective cooperative efforts to improve conditions in “refugee sending” countries.
Meanwhile, many complicit Article III Judges (U.S. District Judge Dolly Gee being a notable exception) simply “look the other way” — not THIER kids and families being tortured and killed, so who cares what happens to them — and a depressing segment of the U.S. public just doesn’t care that the Trump regime is putting America among the most notable international human rights abusers. After all, THEY have jobs, THEIR kids aren’t the Trump regime’s targets (yet), and the stock market is going up. So, who cares what dehumanization, intentional human rights abuses, and violations of legal norms are taking place in their name?
Still, I think that Phil, Kit, the Round Table, and many other members of our “New Due Process Army” are clearly “on the right side of history” here. It’s just tragic that so many innocent folks, many of them children, will have to die or be irreparably harmed before America finally comes to its senses and restores morality and human values to our government.
We’ve got a chance to “right the ship” this November. Don’t blow it!
Due Process Forever; Government Child Abusers & Their Enablers Never!
