Refugees – Page 174 – immigrationcourtside.com

WashPost: Professors (And Former USG Senior Execs) Martin & Legomsky Analyze Judge Brinkema’s Travel Ban Decision — Religious Discrimination Finding Might Be Key To Opponents’ Future Success (Or Not)!

https://www.washingtonpost.com/local/public-safety/why-virginia-matters-in-the-travel-ban-fight/2017/02/14/27cfff3c-f2ec-11e6-b9c9-e83fce42fb61_story.html?utm_term=.880047c24800

Rachel Weiner reports:

“’Judge Brinkema spells out a lot more; she really fleshes out one of the possible claims, and that’s the religious discrimination claim,’” said David Martin, a professor at the University of Virginia who, for many years, helped shape immigration policy inside the government. ‘That may well prove to be the strongest or more fruitful line of inquiry for the plaintiffs in these various cases, particularly if they’re trying to reach past green-card holders or people on immigrant visas. It’s hard to get there without a religious discrimination case of some kind.’”

. . . .

“’It was a very well-reasoned, thoughtful decision. Frankly, I think, a more careful decision than the 9th Circuit decision,’ said Steve Legomsky, former chief counsel for immigration services in the Department of Homeland Security. In her opinion, Legomsky said, Brinkema ‘pretty methodically went through the various statements by Trump. . . . They put great weight on the opinions of the former national security officials to show the absence of counterevidence from the Trump administration. For both of those reasons, I think the Virginia opinion is very important.’
Brinkema also brings to the case extensive national security experience. She presided over the trial of Sept. 11, 2001, conspirator Zacarias Moussaoui, among other high-profile cases.

‘It was a thoughtful opinion, it’s well considered, it wasn’t hastily done like some of these other decisions had to be in light of circumstances,’ said Justin Cox of the National Immigration Law Center. His group is involved in several lawsuits against the ban, including one filed in Maryland last week focused on refugees. That case is specifically focused on religious discrimination.

‘Legally [the Virginia ruling] is actually quite significant because it’s the first court to squarely hold that the executive order violates the establishment clause,’ Cox said.

The danger for opponents of the ban is that, should the Justice Department appeal Brinkema’s decision, they will face the more conservative 4th Circuit rather than the left-leaning 9th Circuit.

‘It would be a close call,’ Legomsky said. ‘There is such strong evidence of religious discrimination — it’s really hard to know.’”

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As noted in this article, in addition to being leading academic “immigration gurus,” both Professor Martin and Professor Legomsky have lived in the “real world” of shaping Government policies and managing programs that actually implement those policies.

As they point out, while many of the objections to the “travel ban” could be eliminated by applying it just prospectively to those outside the U.S. who have not previously been admitted, that wouldn’t necessarily overcome Judge Brinkema’s finding that the “national security” reasons asserted by the Government in her court were merely “pretext” for unconstitutional religious discrimination.

While Justin Cox might be correct that the Fourth Circuit is not as liberal as the Ninth Circuit, that distinction probably would apply to every other Circuit Court of Appeals. Having spent 13 years as an Immigration Judge in Arlington, where my decisions ultimately could be reviewed by the Fourth Circuit and Fourth Circuit law applied, I found their immigration rulings very balanced. Indeed, they sometimes cited Ninth Circuit precedent and even were ahead of the Ninth in recognizing some migrants’ rights.

While the Fourth Circuit affirmed the overwhelming majority of BIA and Immigration Judge decisions in unpublished, non-precedential decisions, when they spoke in published precedents they always had important guidance to offer. The Fourth Circuit also was not afraid to stand up to the Government and “call them out” when necessary in the field of immigration.

And, at least in the Arlington Immigration Court, we trial judges paid close attention. I think that the Fourth Circuit’s very fair and well-reasoned asylum jurisprudence, in some significant ways more faithful to the asylum law and regulations than rulings of the BIA, was one reason why asylum applicants were often successful in Arlington. That’s also why many asylum cases in Arlington could be resolved by the parties in “short hearings” based on extensive written documentation and application of the Fourth Circuit law.

There is also a wonderful pastel portrait of Judge Brinkema in her court with the full article at the link. Check it out!

PWS

02/16/17

Yemeni Students In Limbo

https://www.washingtonpost.com/local/education/we-dont-know-what-we-are-going-to-do-yemeni-students-unable-to-return-home-face-uncertain-status-in-america/2017/02/14/496927d8-f204-11e6-8d72-263470bf0401_story.html?hpid=hp_local-news_yemeni-730pm%3Ahomepage%2Fstory&utm_term=.a079ca2b0c04

Emma Brown writes in the WashPost:

“Taima Aliriani, 17, center, with friends at Northern Virginia Community College in Annandale on Feb. 7. Aliriani is from Yemen and hopes to stay in the United States. (Bonnie Jo Mount/The Washington Post)
They left their families in Yemen nearly three years ago through an exchange program that aimed to introduce Muslim high school students from overseas to America. But when civil war broke out at home, they couldn’t return, and what was supposed to be a 10-month visit turned into an indefinite stay.

Now the State Department — which sponsored the program and has supported these two dozen students since they arrived in 2014 — has notified them that they’ll be on their own in a few months.

For these Yemeni students, most of them thousands of miles away from their nearest relatives, that means no more housing or living stipends, and no more community-college tuition aid. Perhaps most important, it also means no more student visas. That will leave many of them facing the prospect of losing their legal status as visitors at a time when President Trump has pledged heightened immigration enforcement.

“I don’t only have to look for a place to stay and a way to pay for myself and a way to pay for my education, but now I also have to worry about racism and legal status,” said Taima Aliriani, 17, who graduated from high school in Indiana and is now at Northern Virginia Community College. “I applied for asylum, but right now I feel like I’m probably not going to get it.”

Aliriani is one of six Yemeni exchange students who were trapped here by their country’s civil war and are now at NOVA. Six others are at community colleges in Wisconsin, and a dozen are studying in Washington state.

Last month, a week after he took office, Trump signed an executive order that barred refugees and people from seven Muslim-majority countries from entering the United States. Yemen was one of them.

The U.S. Court of Appeals for the 9th Circuit has temporarily blocked enforcement of the order, but the new administration’s push to bar citizens of those nations has terrified many Muslims, including the Yemeni exchange students who wonder what is next for them.”

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PWS

02/15/17

BREAKING: Judge Brinkema (EDVA) Issues Preliminary Injunction Against Parts Of Trump Travel Ban — Finds “National Security” A Pretext For Unconstitutional Religious Discrimination! (Updated With A Copy Of Judge Brinkema’s 22-Page Order, Courtesy Of Politico)

https://www.washingtonpost.com/local/public-safety/judge-in-virginia-grants-preliminary-injunction-against-travel-ban/2017/02/13/a6164bfe-f255-11e6-a9b0-ecee7ce475fc_story.html?utm_term=.99968d12d9cf

The Washington Post reports:

“The executive order, Judge Leonie M. Brinkema concluded, probably violates the First Amendment’s protections for freedom of religion.

Brinkema’s order applies only to Virginia residents and students, or employees of Virginia schools. A nationwide freeze has been in place for several days, having been issued in Washington state and upheld by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit.

In her opinion, Brinkema wrote that the Commonwealth of Virginia “has produced unrebutted evidence” that the order “was not motivated by rational national security concerns” but “religious prejudice” toward Muslims. She cited Trump’s statements before taking office, as well as an interview in which former New York City mayor Rudolph W. Giuliani (R) said that the president wanted a “Muslim ban.”

“The ‘Muslim Ban’ was a centerpiece of the president’s campaign for months, and the press release calling for it was still available on his website as of the day this Memorandum Opinion is being entered,” Brinkema wrote.

The case against the order in Virginia is being litigated by the state’s attorney general, Mark R. Herring (D). It was originally brought by lawyers for the Legal Aid Justice Center who were representing two Yemeni brothers turned away after landing at Dulles International Airport. The brothers have since been allowed into the country.

“I saw this unlawful, unconstitutional and unAmerican ban for what it is, and I’m glad the court did too,” Herring said Monday night. He said the decision “lays out in stunning detail the extent to which the Court finds this order to likely violate the First Amendment of the U.S. Constitution.”

Simon Sandoval-Moshenberg, an attorney for the brothers, Tareq and Ammar Aziz, said the judge was “calling out the ban for what it really is, a Muslim ban.”

The decision is significant, he noted, because a preliminary injunction requires a higher burden of proof than the temporary restraining order issued in Washington.

. . . .

Brinkema rejected that [the Government’s] argument. “Maximum power does not mean absolute power,” she wrote. “Every presidential action must still comply with the limits set by Congress’ delegation of power and the constraints of the Constitution, including the Bill of Rights.”

She also dismissed the idea that a halt on the ban would cause any harm. On the other hand, she said, the Commonwealth produced evidence that the ban is having a negative impact on students and faculty who can no longer leave the country for fear of losing their visas or who are no longer sure they can study in the state.

“Ironically, the only evidence in this record concerning national security indicates that the [order] may actually make the country less safe,” Brinkema wrote, a reference to a letter from a bipartisan group of national security professionals decrying the impact of the ban abroad.”

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Here is Judge Brinkema’s 22-page order granting the preliminary injunction issued yesterday, Feb. 13, 2017 in Aziz v. Trump. (courtesy of Politico).

http://www.politico.com/f/?id=0000015a-3a0e-d784-a5fb-3ebe82c60000

PWS

02/14/17

The Hill: N. Rappaport Predicts That Trump Will Have Slam Dunk Win If “Travel Ban” Case Gets To Supremes!

http://thehill.com/blogs/pundits-blog/immigration/319212-if-immigration-ban-goes-to-supreme-court-trump-is-is-shoo-in

“Two states challenged President Donald Trump’s executive order, Protecting the Nation from Foreign Terrorist Entry into the United States, in a U.S. District Court. The District Court preliminarily ruled in their favor and temporarily enjoined enforcement of the order.

The government appealed to the U.S. Court of Appeals for the Ninth Circuit and filed a motion for an emergency stay to reinstate the order while its appeal from the District Court’s decision proceeds.
The court denied the government’s motion because it was not convinced that the government is likely to prevail on the states’ due process claim when the case is adjudicated on its merits. The court reserved consideration, however, on the states’ religious discrimination claim until the merits of the appeal have been fully briefed.

I have found no merit in the States arguments in support of either of those claims.”

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Read Nolan’s complete article at the link which gives his reasons for finding both the Due Process and Religious Discrimination Claims under the Constitution without merit. Additionally, Nolan wrote an earlier article in The Hill on February 8, 2017, which I inadvertently missed, expanding upon his views of the nature of Presidential authority in this area:

http://thehill.com/blogs/pundits-blog/immigration/318540-exactly-how-much-immigration-authority-does-trump-have-well

I doubt that this case will reach the Supremes in its current posture for four reasons: 1) the Court generally does not review cases at the TRO stage; 2) with only eight Justices and having split evenly on the last major challenge to Executive Power (involving the Obama Administrations so-called DAPA program) I doubt the Court wants to take this on right now; 3) at the TRO stage, the record is very sparse and the Court often looks through the record for some non-Constitutional basis to avoid sweeping rulings; 4) the Court has complete discretion as to whether to grant review in this situation and does not have to provide any reasons for denying review.

As to the merits, I doubt that the EO as currently drafted can pass constitutional muster. For example, as noted by the 9th Circuit panel, a returning lawful permanent resident alien is entitled to full due process under Supreme Court rulings. Whatever that might mean in the section 212(f) context, it has to involve, at a minimum, a hearing before a quasi- judicial official with some type of Article III judicial review. To the extent that Nolan suggests that the President himself can make such determinations or delegate them to non-quasi-judicial officials I disagree.

Also, someone coming to the U.S. with a positive overseas refugee determination would clearly be entitled to a fundamentally fair forum in which to make claims for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Indeed, anyone arriving in the United States has such a right.

I recognize the Sierra Leonian example cited by Nolan in his 02/08/17 article, and apparently that case was affirmed by the BIA and the 2d Circuit in unpublished decisions. However, it seems to me that under the CAT, a full due process hearing is required before returning individuals to a country where they might be tortured, even where that country has given “diplomatic assurances” that the individual will not be tortured. See Khouzam v. Attorney General, 549 F.3d 235 (3d Cir. 2008). I also doubt that withholding of removal, which can be granted to someone arriving at a land border after an order of removal has been entered, really is an “entry” under the INA.

These are just the most glaring examples of the lack of thought, judgement, and legal analysis that went into this ill-advised Executive Order. Haste makes waste. Bad cases make bad law, etc.

I’m inclined to believe, however, that it is likely that a carefully drafted and properly vetted Executive Order which applies only to individuals overseas who have never been admitted to the U.S., and which provides at least some type of “facially legitimate” factual basis to support it (and I don’t mean the idea that prior Congressional and Executive actions on the entirely different issue of whether an individual who was not from one of these countries, but who had visited one of these countries, could come in under a waiver of any visa vetting at all — “visa waiver”) would likely be upheld by the Court.

But, that’s probably not going to happen under this Administration. Indeed, President Trump is making the strongest possible case that our doctrine of separation of powers and the continued existence of our very constitutional republic will require, if anything, an even higher degree of judicial scrutiny of almost all Executive actions. A President who surrounds himself with such obviously unqualified individuals as Steve Bannon, Stephen Miller, and Mike Flynn shows just why the President’s judgement is not to be trusted — on this or almost anything else.

There is a reason why this issue hasn’t come up before in our history. It’s called wise and prudent Executive judgement. And, it’s sorely lacking in this Administration.

PWS

02/13/17

Getting It Right: How a Small Town In Virginia’s Shenandoah Valley Makes Migration Work — For Everyone In The Community!

https://www.washingtonpost.com/opinions/how-one-small-virginia-town-embraces-immigration–and-is-better-off-for-it/2017/02/10/4c3ff190-ecbd-11e6-9662-6eedf1627882_story.html?utm_term=.99ac31cc3a66

Andrew D. Perrine writes in the Local Opinions section of today’s Washington Post:

“Who would guess that a city tucked in the Shenandoah Valley of western Virginia, with a population of 53,000 and a hard-working rural history, is a model of international coexistence?

Yet, only 55 percent of the students attending Harrisonburg City Public Schools were born in the United States. The second-largest segment of the population by country of origin is Iraqi. Then there are the Hondurans, Puerto Ricans, Salvadorans and Mexicans. The Congolese, Ethiopians, Jordanians, Ukrainians and Syrians are representd, too. As of January 2016, Harrisonburg City Public Schools are attended by students from 46 countries.

One might guess that so many people from so many places around the world never could get along in such a small town given the unnerving level of social discord represented in the media regarding immigration and the fear of terrorism. Yet they do. Crime is mostly petty. Only four police officers have died in the line of duty since the first in 1959. What on earth is happening in Harrisonburg?

Known since the 1930s as “The Friendly City,” Harrisonburg is an official Church World Service refugee resettlement community. It’s home to James Madison University and Eastern Mennonite University, which brings a lot of foreign nationals to town through its missionary work around the world. And the city lies in the path of Interstate 81. So, even though Harrisonburg is no bustling port city or cosmopolitan metropolis, its high level of diversity is not so hard to believe.

But what is so hard to believe is the level of concord among all the various walks of life. Listening to the current American national dialogue, or observing the rise of nationalist political candidates around the world, one would assume that mixing nationalities, religions and ethnic groups in such close quarters would produce enough emotional tinder to fuel a blaze of angry divisions and open fighting in the streets. Yet it does not.

In fact, less than a week after the White House issued an executive order banning refugees from seven majority-Muslim countries, 30 volunteers from churches of various faiths in Harrisonburg and the surrounding Rockingham County collected food donated to the Islamic Center of the Shenandoah Valley. According to the Daily News-Record, the food was set out after the Islamic Center’s 1 p.m. service, and 300 attendees grabbed lunch to go or sat down to a meal. One attendee reportedly said, “This support shows us the community is standing with us. This makes us feel like we are all Americans.”

Maybe everyone gets along well in Harrisonburg because the town is small and the community actively interacts. It is a lot easier to think badly of some group — or even hate them — if its members are an abstraction to you. If you don’t know or see the people you’re told to fear, it’s much easier to fear them. In Harrisonburg, we plainly see that our Mexican and Muslim neighbors are not as they are portrayed by some in elected office or in the media.

Maybe the answer is not a wall or a moratorium on immigration. Maybe the answer is exactly the opposite. Just ask the good people in the Friendly City of Harrisonburg.”

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Maybe guys like Stephen Miller, Jeff Sessions, and even President Trump need to spend a little less time in “the swamp” of Washington, D.C., and a little more time breathing the fresh air out in the Valley.

PWS

02/11/17

Meet Presidential Senior Adviser Stephen Miller, The Man Behind President Trump’s Immigration Policies!

https://www.washingtonpost.com/politics/stephen-miller-a-key-engineer-for-trumps-america-first-agenda/2017/02/11/a70cb3f0-e809-11e6-bf6f-301b6b443624_story.html?hpid=hp_rhp-top-table-main_miller-1029am%3Ahomepage%2Fstory&utm_term=.ae956d080521

Rosalind S. Helderman writes in a front-page article in today’s Washington Post:

“After attending Trump’s inauguration, Jared Taylor, another high-profile white nationalist, posted a piece to his website in which he wrote that Trump is “not a racially conscious white man” but that there “are men close to him — Steve Bannon, Jeff Sessions, Stephen Miller — who may have a clearer understanding of race, and their influence could grow.”

In an interview, Taylor said he was “speculating” and that he has not met or spoken with Miller.

Miller said he has “profound objections” to the views advanced by Taylor and Spencer, saying: “I condemn this rancid ideology.”

Elder, who is black, said he has never heard Miller speak of Spencer or Taylor or express what he considers racist views.

Instead, Elder said, Miller believes as he does: “Race and racism are no longer major problems in America. This is the fairest majority-white country in the world. If you work hard and make good decisions, you’ll be fine.”

Miller said that his views at the time were best summed up in a 2005 column in the Santa Monica Mirror, titled “My Dream for the End of Racism,” in which he argued that Americans should focus on how far the country has come in overcoming such prejudice. “No one claims that racism is extinct — but it is endangered,” he wrote. “And if we are to entirely extract this venom of prejudice from the United States, I proclaim Americanism to be the key.”
Focusing on “multiculturalism,” he wrote, has had the effect of keeping different groups separate.

Miller’s White House role is in many ways a departure for an activist who has mostly seen himself as representing an oppressed political minority. Now he holds the power, helping to drive the government while working steps from the Oval Office.

Bitner said he wonders how Miller’s tactics will translate.

“I don’t think he’s had the opportunity to practice this,” he said. “These are all outsiders, many of them people who have been vocal minorities. How do you transition from there to governing?”

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Summary: White guy is born into a well-to-do family in Southern California. Leads life of privilege and opportunity. Goes to diverse high school and is offended that Mexican Americans and other fellow students of different backgrounds are unwilling to accept the status quo and also want their “piece of the pie.” Voluntarily adopts borderline racist, white supremacist philosophy that converts him into a “persecuted minority” within his own privileged class. Like former boss and mentor Attorney General Jeff Sessions, bristles with righteous self-indignation when anyone has the gall to accuse him of sharing the noxious philosophies of those who have consistently applauded and felt empowered by his rise. Now holds position of power in government he basically despises where he can actively shove his extreme and divisive philosophy down the collective throats of the majority of Americans who don’t share his negative outlook. I suppose that it’s an overall positive for the American political system and its freedom of expression that even a self-created “philosophical minority” like Miller can find success.

PWS

02/11/17

WashPost: Marginalizing Muslim Youth Gives Terrorists A Potent Recruiting Tool

http://www.washingtonpost.com/sf/world/2017/02/11/theyre-young-and-lonely-the-islamic-state-thinks-theyll-make-perfect-terrorists/

“In the face of terrorist attacks, freedom of religion is being tested in Germany — with even the progressive Chancellor Angela Merkel now calling for an election year ban on the full Muslim covering known as the burqa. A German soccer club recently canceled the contract of one of its Muslim players — Anis Ben-Hatira — after a media uproar over his involvement in a legal Islamic charity that promotes a conservative brand of the faith.

The heightened sense of insulation and persecution among young Muslims, experts said, is only fostering more radicalization.

“Religious extremist propaganda, Salafist propaganda, can only work if it is addressed to an audience that is already marginalized and feeling uncomfortable in society,” said Goetz Nordbruch, co-director of Horizon, a German group offering counseling and workshops on Islamophobia in German schools.”

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PWS

02/12/17

Know Your Rights Presentation with Professor Alberto Benitez and Chris Carr, JD ’17

https://vimeo.com/user9108723/review/203448069/ae155e4ae3

Professor Benitez and his students from the George Washington Law School Immigration Clinic have consistently made huge contributions to due process and the excellence of immigration practice at the Arlington Immigration Court. I highly recommend this educational video!!

PWS

02/11/17

Trump Mulls Travel Ban Options — Rewrite of Exec Order Possible — Might Forego Request For Supremes’ Intervention Now!

https://www.washingtonpost.com/world/national-security/white-house-considers-rewriting-trumps-immigration-order/2017/02/10/ddcf5a6a-efb5-11e6-b4ff-ac2cf509efe5_story.html?hpid=hp_rhp-top-table-main_trumpban-408pm%3Ahomepage%2Fstory&utm_term=.c2de193b26a6

From the Washington Post:

“President Trump said Friday that he is considering rewriting his executive order temporarily barring refugees and citizens of seven Muslim-majority countries from entering the country, indicating that the administration may try to quickly restore some aspects of the now-frozen travel ban or replace it with other measures.

Trump told reporters aboard Air Force One that he would probably wait until Monday or Tuesday to take any action, and White House Chief of Staff Reince Priebus said several options — including taking the case to the Supreme Court — were still on the table.

Trump hinted that the ongoing legal wrangling might move too slowly for his taste, though he thought he would ultimately prevail in court.”

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Many commentators have suggested that the Administration could have avoided most of the constitutional issues that have bothered the courts by simply making the order applicable solely to those abroad who have not been admitted to the U.S. as refugees or with visas.

The Solicitor General’s Office at the DOJ (even though there is no appointed “SG” for now, there are plenty of career “Supreme Court pros” on the staff) doesn’t like to “look bad” before the Supreme Court. Normally, the Solicitor General must approve and sign off on all Government filings before the Supreme Court. It’s possible that the SG’s Office thinks that the Administration’s case is unlikely to prevail in its current posture, and is therefore trying to persuade the Administration not to file for Supreme Court review right now.

PWS

02/10/17

David Ignatius: Bluster, Bombast, And Blunders Not Likely To Defeat ISIS!

https://www.washingtonpost.com/opinions/fears-of-an-islamic-state-breakout-fuel-trumps-strategy/2017/02/09/ea3d6c44-ef09-11e6-9973-c5efb7ccfb0d_story.html

“The bitter irony is that as Trump proclaims his anti-Islamic State campaign, al-Qaeda is becoming stronger in both Iraq and Syria, warn analysts from the Institute for the Study of War. This is a fight where easy slogans and rushed travel bans aren’t likely to provide a path to victory.”

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Indeed, the fiasco that began in the Bush Administration has now put us in a position where we actually need Iran, “the Axis of Evil,” to battle ISIS.

PWS

02/10/17

Matt Zapotsky in WashPost: “7 key take-aways from the court’s ruling on Trump’s immigration order”

https://www.washingtonpost.com/news/post-nation/wp/2017/02/09/7-key-takeaways-from-the-courts-ruling-on-trumps-immigration-order/?hpid=hp_rhp-top-table-main_trumpban-takeaways-930pm%3Ahomepage%2Fstory&utm_term=.64ae82747f5

PWS

02/10/17

BREAKING: 9th Circuit Panel Unanimously Reject’s Administration’s Request For Stay Of Travel Ban — Read The Complete Decision Here!

Read-the-9th-Circuit-s-opinion-on-the-travel-ban

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I think it will be hard for the Administration to prevail at this stage. I’d be surprised if either the full (“en banc”) 9th Circuit or the Supreme Court want to get involved at the TRO stage.

President Trump Tweets “See You In Court.” (Hasn’t that line been used before?) But, as indicated above, I’m not sure that the Supreme Court (particularly with only 8 Justices) will want to intervene at this point. The Supremes did take the Obama Immigration Executive Order case at a preliminary stage; but they were unable to resolve it on the merits, affirming the lower court’s injunction by an evenly divided Court. Not clear why the Court would be in a better position to resolve this one. But, we’ll find out shortly.

PWS

02/09/17

WashPost: The Fix: Trump Threatens Third Branch!

https://www.washingtonpost.com/news/the-fix/wp/2017/02/08/president-trump-is-not-so-subtly-threatening-the-american-court-system/?hpid=hp_rhp-top-table-main_trumphearing-1230pm:homepage/story&utm_term=.889ea4d1df98

Aaron Blake writes in the Washington Post:

“In a speech to law enforcement officials, Feb. 8, President Trump read federal law giving broad him broad authority to set immigration restrictions, adding, “a bad high school student would understand this.” (The Washington Post)

The 9th Circuit Court of Appeals is now weighing what to do with President Trump’s travel ban. And Trump did his best Wednesday to put his finger on the scales of justice.

Continuing a highly unusual days-long effort by a president, Trump issued a stark warning to the three-judge panel and, really, the entire court system: Run afoul of me, and you may just pay a price.

In a speech in front of law enforcement in Washington, Trump suggested to the three-judge panel that they would marginalize themselves politically if they decide the wrong way. Trump has said similar things about the judge who previously halted his travel ban — albeit after the decision had come down.

The comments were oblique, but Trump’s point was crystal clear.

“If these judges wanted to help the court in terms of respect for the court, they’d do what they should be doing,” Trump said, in a comment thick with subtext. “It’s so sad.”

He added: “I don’t ever want to call a court biased, so I won’t call it biased. But courts seem to be so political, and it would be so great for our justice system if they would read [the law] and do what’s right.”

If that isn’t a threat to marshal support against the American court system and fight it politically, I’m not sure what is. Trump is basically saying: That’s a nice reputation you’ve got there. It’d be a shame if something happened to it.”

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So, if this is the contemptuous and disrespectful way Trump treats the Article III Courts, what does that say about the chances for fairness and due process in the U.S. Immigration Court System, where all the U.S. Immigration Judges and the Appellate Immigration Judges on the Board of Immigration Appeals work directly for Trump’s friend and enthusiastic supporter, Attorney General Jeff Sessions, a well-established “immigration hard liner” who is reputed to be the “inspiration” behind Trump’s immigration enforcement program.

How long will an Immigration Judge who rules in favor of an individual who is one of Trump’s “removal priorities” or an Appellate Immigration Judge who speaks out in favor of due process in the face of Trump’s “move ’em all out” Executive Orders remain on the bench. Not long, I suspect. Is Attorney General Jeff Sessions really going to stand up for and protect a conscientious Immigration Judge who in good faith attempts to follow the law even when it conflicts with Trump’s edicts? Not likely.

The only question probably will be whether Article III Judges will stand up to Trump’s bullying and excesses and force Constitutional due process back into the system after Trump and Sessions drain it out. So far, the Article III Judiciary seems to be almost as unfazed by Trump’s bulling and threats as, say, the cast of SNL. But, it’s early in the game. And even Article III Judges eventually might find that they have to pick their fights. Will the due process rights of foreign nationals be one of them? Only time will tell. Stay tuned.

PWS

02/08/17

Summaries Of 9th Cir. Travel Ban OA & Judicial Bios From WSJ

https://www.wsj.com/articles/donald-trumps-immigration-action-in-courts-hands-1486491207

DEVLIN BARRETT, BRENT KENDALL and ARUNA VISWANATHA report in today’s WSJ:

“An appeals court pressed a Justice Department lawyer Tuesday on whether President Donald Trump’s executive order on immigration is discriminatory, while also pushing an attorney for the two states fighting the order to explain how it could be unconstitutional to bar entry of people from terror-prone countries, the Justice Department lawyer arguing on behalf of the administration, urged the appeals court to remove a lower-court injunction on the order, arguing that the court shouldn’t second-guess the president’s judgment when it came to a question of national security.

The executive order, Mr. Flentje told a three-judge panel of the San Francisco-based Ninth U.S. Circuit Court of Appeals, struck a balance between security concerns and the practice of allowing people to enter the country.

“The president struck that balance, and the district court’s order has upset that balance,” he said. “This is a traditional national security judgment that is assigned to the political branches and the president and the court’s order immediately altered that.’’

The oral arguments on whether to reinstate some, all, or none of President Donald Trump’s executive order on immigration represented a crucial test in the fast-moving legal battle over White House efforts to restrict entry into the U.S. The Jan. 27 order suspended U.S. entry for visitors from seven predominantly Muslim countries for at least 90 days, froze the entire U.S. refugee program for four months and indefinitely banned refugees from Syria. The administration argues the action was needed to keep terrorists from domestic soil.

The president weighed in on Twitter on Wednesday morning: “If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!”

The legal clash, which is also playing out in other courts around the country, represents a remarkable test of the powers of a new president determined to act quickly and aggressively to follow up on his campaign promises. Mr. Trump, who promised repeatedly on the campaign trail to tighten what he called lax immigration policies, issued his executive order a week after taking office, generating widespread protests as well as plaudits and setting off an immediate debate over the extent of executive branch authority.”

. . . .

The court isn’t making a final determination on the legality of Mr. Trump’s order for now. Instead, it must decide what immigration rules will be in effect during the coming months while court proceedings on the substance of the president’s restrictions continue.”

Read the WSJ’s bios of the three U.S. Court of Appeals Judges on the panel: Judge William C. Canby Jr., Judge Richard Clifton, Judge Michelle Friedland:

https://www.wsj.com/articles/three-federal-judges-will-decide-on-donald-trump-travel-ban-1486488393

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This one still seems “too close to call.” There are substantial arguments on both sides. Courts generally do not like to interfere with the authority of the President in the fields of immigration, national security and foreign policy. On the other hand, appellate courts are usually very reluctant to interfere with trial court proceedings at the very preliminary TRO stage. While this might eventually end up in the Supreme Court, as most commentators assume, I’m skeptical it will go there any time soon, given the Supreme’s current short-handed configuration.

PWS

02/08/17

WashPost Editorial: Refugees Belong In America — Anti-Refugee Scare Tactics, Not So Much!

https://www.washingtonpost.com/opinions/refugees-are-part-of-americas-fabric-and-its-promise/2017/02/06/c10179ba-ea59-11e6-80c2-30e57e57e05d_story.html

“AS THE Trump administration fought in court to revive its temporary ban on entry by refugees as well as travelers from seven majority-Muslim countries, the president persisted in perversely suggesting that the judicial branch will be responsible for any terrorist attack carried out by what he portrayed as the violent hordes clamoring to enter the country.

By conflating a dangerous fiction about immigrants with blatant disrespect for an equal branch of government, President Trump fans the xenophobic flames he did so much to ignite during the presidential campaign. “Just cannot believe a judge would put our country in such peril,” he tweeted over the weekend, after a ruling by U.S. District Judge James L. Robart in Seattle, who was nominated to the court by President George W. Bush. “If something happens blame him and court system. People pouring in. Bad!”

. . . .

Even if the courts uphold its actions, it is critical that the administration not use the inevitable imperfections of any vetting process as a pretext to ban refugees for more than the 120-day period covered by the Jan. 27 order. Already, Mr. Trump has slashed the current fiscal-year target for refugee admissions to 50,000, from 110,000.

That’s a trickle when measured against the United States’ traditional role as a beacon to those fleeing violence and tyranny, and against global demand. The United Nations counts some 16 million refugees (excluding Palestinians); more than half are children . By far the largest number, nearly 5 million , are Syrians, who are barred indefinitely under Mr. Trump’s order.

“These are not Jeffersonian democrats,” sneered Mr. Bannon, referring to Muslim immigrants who entered Europe. In 2015, he asked, “Why even let ’em in?”

Similar remarks were made a century ago about immigrants from Ireland, Italy, Germany and Eastern Europe, then widely seen as unschooled, unwashed and, often, violent. No one would ask now, “Why did we even let ’em in?”

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

“Not Jeffersonian democrats,” Mr. Bannon? Says who? How would you know? Where have you dealt face to face with refugees?

In my “last previous incarnation,” I dealt with refugees from a wide variety of countries on a daily basis. Most of them were folks just like you or me. The just wanted a chance to live (rather than die, be imprisoned, beaten, or otherwise tortured), work, raise their families in safety and security, and contribute to our nation. Pretty much what all of us want, in my experience.

They also had a very keen appreciation of and deep respect for what American democracy and free political and intellectual participation meant — a much clearer understanding than I have ever heard from President Trump or Steve Bannon. Someone who has been imprisoned in squalid conditions, burned with cigarette butts, beaten on the bottoms of the feet, made to walk on their knees over hot sand, or seen family members abused has a much more practical, down to earth understanding of the privilege of living in the United States than most of us who had the good fortune (not merit, but pure good fortune) to be born here.

I wake up every morning thankful that I woke up and that I’m not a refugee (particularly in the Trump/Bannon world).

PWS

02/07/17

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