“SIR JEFFREY” CHASE ⚔️🛡 KICKS OFF 2021: Misuse of CDC Authority🤮 Part Of The Scofflaw Regime’s White Nationalist Agenda☠️🏴‍☠️ — Why Have the Federal Courts Let Bogus Pretexts “Overrule” Truth & The Rule of Law?🤥

https://www.jeffreyschase.com/blog/2021/1/3/the-next-level-shamelessness-of-the-covid-security-regs

The Next-Level Shamelessness of the COVID Security Regs

On December 23, EOIR and USCIS published final rules designed to brand most people a “security risk,” and thus ineligible for asylum. The rules won’t become effective until January 22 (i.e. after the Biden Administration is in office), so will presumably be pulled back before they hurt anyone other than the reputations and careers of those responsible for their publication. Nevertheless, it seems worthwhile to refute the present administration’s claimed justification for such a rule. First, there will certainly be other bad administrations in our future, and as we’ve seen with the present one, they might look to the past for inspiration.

Furthermore, even without the rule going into effect, individual immigration judges will still be faced with interpreting the clause it invokes on a case-by-case basis. I’m hoping the following analysis will prove useful, as I’m pretty sure it wasn’t covered in the judges’ training.

But most importantly, the assaults of the past four years on facts and reason have taught us the need to constantly reinforce what those presently in charge hope to make us forget: that there are laws passed by Congress; that the Judiciary has created strict rules governing their interpretation, and that executive agencies are not free to simply ignore or reinvent the meaning of those laws to their own liking.

The regulations in question seek to take advantage of the present pandemic to render any asylum seeker who either exhibits symptoms of the virus, has come in contact with it, or has traveled from or through a country or region where the disease is prevalent ineligible for asylum. The administration seeks to justify this by claiming that there are reasonable grounds for regarding the above a danger to the security of the United States.

The “danger to the security of the United States” bar to asylum1 which the new regulations reference derives from Article 33(2) of the 1951 Convention Relating to the Status of Refugees, which serves as the international law basis for our asylum laws. That treaty (which is binding on the U.S.) states that the prohibition against returning refugees shall not apply to those “whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

However, Article 33(2) applies to those who have already been recognized as refugees, and have then committed crimes in the country of refuge, which is not the class to whom the new regulations would apply. The bases for excluding those seeking refugee status for reasons arising prior to their arrival are found under Article 1D through 1F of the 1951 Convention. The prohibitions found there cover three groups: those who are already receiving protection or assistance (Article 1D); those who are not considered to be in need of protection (Article 1E); and those “categories of persons who are not considered to be deserving of international protection (Article 1F).2 Individuals posing a danger to the community fall into the final category.

No ground contained in the 1951 Convention excludes those in need of protection for health-related purposes. To understand why, let’s look closer at the Convention’s use of the word “deserving” as it relates to refugee protection. In 1997, UNHCR published a note providing additional insight into the Article 1F “exclusion grounds.” Explaining that “the idea of an individual ‘not deserving’ protection as a refugee is related to the intrinsic links between ideas of humanity, equity, and the concept of refuge,” the note explains that the primary purpose of the clauses “are to deprive the perpetrators of heinous acts and serious common crimes, of such protection.” The note explains that to do otherwise “would be in direct conflict with national and international law, and would contradict the humanitarian and peaceful nature of the concept of asylum.”

The European Council on Refugees and Exiles covered this same issue in its 2004 position paper on Exclusion from Refugee Status. At page 8, the ECRE stated that the “main aim” of Article 1F was not “to protect the host community from serious criminals,” but rather to preserve the integrity of the international refugee system by preventing it from being used to “shelter serious criminals from justice.” These sources make it extremely clear that the intent was certainly not to exclude someone who might have been exposed to a virus.

In including six exceptions to eligibility in our asylum statute,3 Congress followed the lead of the 1951 Convention, as all six domestic clauses fall within the three categories listed in paragraph 140 of the UNHCR Handbook as listed above. Of the six grounds listed under U.S. law, the last one, regarding persons firmly resettled in another country prior to arrival in the U.S., is covered by the Convention categories of those already receiving assistance or not in need of assistance.

The remaining five exceptions under U.S. law fall within the category of those not considered to be deserving of protection (Article 1F). The statute lists those categories as: (i) persecutors of others; (ii) persons posing a danger to the community of the U.S. by virtue of having been convicted of a particularly serious crime; (iii) persons whom there are serious reasons to believe committed serious nonpolitical crimes prior to their arrival in the U.S.; (iv) persons whom “there are reasonable grounds for regarding…as a danger to the security of the United States,” and (v) persons engaged in terrorist activity.

Agencies may only apply their own interpretation to the term “as a danger to the security of the United States” to the extent such term is ambiguous. But the courts have instructed that in determining whether a statute is in fact ambiguous, traditional tools of construction must be employed, including canons.4 The Supreme Court has recently applied one such canon, ejusdem generis, for this purpose.5 In its decision, the Court explained that “where, as here, a more general term follows more specific terms in a list, the general term is usually understood to ‘ “embrace only objects similar in nature to those objects enumerated by the preceding specific words.”’”6

Former Attorney General Barr himself recently applied the ejusdem generis canon to the term “particular social group,” stating that pursuant to the canon, the term “must be read in conjunction with the terms preceding it, which cabin its reach…rather than as an “omnibus catch-all” for everyone who does not qualify under one of the other grounds for asylum.”7

A very similar canon to ejusdem generis is noscitur a sociis (the “associated words” canon). Whereas ejusdem generis requires a term to be interpreted similarly to more specific terms surrounding it in a list, noscitur a sociis applies the same concept to more specific terms across the same statute.8

In 8 U.S.C. § 1158(b)(2)(A), the more general term “danger to the security of the United States” is surrounded by the more specific terminology describing the accompanying grounds of asylum ineligibility. When thus “cabined” by the more specific classes of persecutors of others, those convicted of serious crimes, and those engaged in terrorist activities, it is clear that Congress intended a “risk to security” to relate to similar types of criminal activity, and not to health grounds. As the intent of Congress is clear, the term “threat to the security of the United States” is not open to any interpretation the agencies might wish to apply to it. Yet in its published rule, EOIR and USCIS here create the type of “omnibus catch-all” that the Attorney General himself has elsewhere declared to be impermissible.

The rule is further at odds with circuit case law in its application to those who simply “may” pose a risk. The Third Circuit has found the statutory language of the clause in question to unambiguously require that the asylum-seeker pose an actual, rather than merely a possible, threat to national security.9 Even if it were assumed that COVID could somehow fit into the category of security risk, simply having traveled from or through an area where the virus is prevalent doesn’t establish that the individual presents an actual risk.

There is also the issue of the transient nature of the risk. In the same decision referenced above, the Third Circuit relied on the Refugee Act’s legislative history to conclude “that Congress intended to protect refugees to the fullest extent of our Nation’s international obligations,” allowing for exceptions “only in a narrow set of circumstances.”10 This is obviously a correct reading where exclusion can lead to death, rape, or indefinite imprisonment. The other classes deemed undeserving of asylum are defined by more permanent characteristics. In other words, the attribute of being a terrorist, a persecutor, or a serious criminal will not wear off in two weeks time. To the contrary, any risk posed by one exposed to COVID-19 is likely to pass within that same time frame. Wouldn’t the “fullest extent” of our obligations call for simple quarantining for the brief period in question?

These issues were all raised in comments to the proposed regs. And of course, dubious reasons were employed to dismiss these arguments. For example, the agencies acknowledged the need for the danger posed be an actual rather than a merely possible one. But somehow, that requirement was dismissed by the inadequate excuse that the danger posed by a pandemic is “unique.”

The rule stands as one of the final examples of the extremes this administration will go to in order to circumvent our asylum laws and turn away those entitled to avail themselves of our immigration courts in order to determine if they are entitled to protection. As demonstrated here, the degree to which this administration veered from the actual intent of the statute in interpreting the security bar wouldn’t have been much greater if it attempted to deny asylum to those wearing white after Labor Day.11 The law must not be twisted or ignored by executive branch agencies when it conflicts with an administration’s policy objectives.

Notes:

8 U.S.C. § 1158(b)(2)(A).

UNHCR Handbook at ❡ 140.

8 U.S.C. § 1158(b)(2)(A).

See, e.g., Arangure Jasso v. Whitaker, 911 F.3d 333, 338-39 (6th Cir. 2018).

See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1625 (2018).

Ibid (citing Circuit City Stores, Inc. v. Adams, 121 S.Ct. 1302, 149 (2001); National Assn. of Mfrs. v. Department of Defense,138 S.Ct. 617, 628–629 (2018)).

Matter of L-E-A-, 27 I&N Dec. 581, 592 (A.G. 2019).

Thanks to Prof. Jaclyn Kelley-Widmer for sharing her expertise on these terms. See Jaclyn Kelley-Widmer and Hillary Rich, “A Step Too Far: Matter of A-B-, Particular Social Group, and Chevron,” 29 Cornell J. of Law and Public Policy 345, 373 (2019).

Yusupov v. Att’y Gen. of U.S., 518 F.3d 185, 201 (3d Cir. 2008).

Id. at 203-204.

If it had done so, EOIR would undoubtedly have defended the move through the traditional, completely acceptable, totally normal method of issuing a “Myths vs. Facts” sheet. The document might contain the following entry: “Myth: EOIR issued a rule banning asylum to anyone wearing any color at any time. Fact: That’s completely absurd! Only those wearing white (which technically might not even be a color) are banned, and even then, only after Labor Day. As Pantone lists 1,867 colors, white consists of .05 percent of all colors one could wear. And that’s only if white is in fact a color. And, again, only after Labor Day.”

Copyright 2021 Jeffrey S. Chase. All rights reserved.

Republished by permission.

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

Jeffrey’s article points out how deeply the corruption and racism of the regime have penetrated into the Federal Bureaucracy, even infecting supposedly “professional and apolitical” agencies like CDC. Fixing this will be a formidable task for the Biden-Harris Administration.

But, there is a larger issue here: Why has the Supremes’ GOP majority “lapped up” the transparent pretexts for unconstitutional actions presented by the regime’s ethics-challenged DOJ lawyers? While an impressive array of U.S. District Court Judges, from both parties, have generally courageously stood tall for the rule of law against White Nationalist abuses, not so the GOP majority of the Supremes!

Let’s go back to the beginning of the regime. After a string of lower Federal Court defeats, “ethics-free” DOJ lawyers massaged and slightly watered down Trump’s “Muslim Ban” and repackaged it as a bogus “national security” measure. But, even as these disingenuous lawyers were advancing this bogus pretext in court, Trump was reassuring his White Nationalist base that this was indeed the “Muslim Ban” he had promised to his supporters.

https://www.cato.org/blog/dozen-times-trump-equated-travel-ban-muslim-ban

Nevertheless, the Supremes’ GOP majority “bought into” the patently (and demonstrably) bogus “national security” pretext, hook, line, and sinker:

Of the Supreme Court’s decision on Muslim ban 3.0, Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said, “This ruling will go down in history as one of the Supreme Court’s great failures. It repeats the mistakes of the Korematsu decision upholding Japanese-American imprisonment and swallows wholesale government lawyers’ flimsy national security excuse for the ban instead of taking seriously the president’s own explanation for his action.”

“It is ultimately the people of this country who will determine its character and future. The court failed today, and so the public is needed more than ever. We must make it crystal clear to our elected representatives: If you are not taking actions to rescind and dismantle Trump’s Muslim ban, you are not upholding this country’s most basic principles of freedom and equality.”

https://www.aclu-wa.org/pages/timeline-muslim-ban

In doing so, the GOP Supremes’ associated themselves with a long line of racially biased pretexts used by courts to uphold invidious discrimination that violated our Constitution

Internment of Japanese-Americans (but not German-Americans) is about national security.
- Truth: Dehumanize, punish, and dispossess Japanese Americans on the West Coast;
Poll taxes are about raising revenue.
- Truth: Preventing African-Americans from voting;
Literacy tests (“grandfathering” ignorant White guys) are about insuring an informed electorate.
- Truth: Excluding African-American voters;
Separate is equal.
- Truth: Insuring that African-Americans will be educationally disadvantaged;
Voter ID laws are about election integrity.
- Truth: Designed by a primarily White GOP ruling class to suppress African American, Latino, and other minority voters who tend to support Democrats;
Gerrymandering to favor the GOP can be solved through the political process.
- Truth: Gerrymandering is intended by the GOP to rig the political process so that voters of color will never achieve political representation proportional to their numbers.

These are just a few of the obvious examples of how the “legal power structure” has often been on the “wrong side of history.” Sadly, it continues with today’s GOP Supremes’ majority which often embraces obvious pretexts and bogus “right wing legal gobbledygook” to systematically dump on vulnerable minorities and others whose political power and humanity they refuse to recognize.

Finally, to reinforce what Jeffrey and others have said, we have a legal obligation to protect refugees. Article 33 of the Convention to which we are party, now incorporated into the INA, is mandatory, not “optional” or “discretionary.”

As I pointed out before, refugees more often than not arrive in times of international crisis and turmoil. “Tough times” or internal problems (in this case aggravated and magnified by a maliciously incompetent regime) are NOT a legal (not to mention moral) basis for us to jettison our legal obligation to offer them protection.

Had the Supremes courageously and unanimously stood up for the Constitution, rule of law, and simple human decency against the regime’s obvious lies, false narratives, overt racism, religious bigotry, and general disregard for the rule of law (now in full, foul bloom every day), the last four years might have been very different. Lives lost forever could have been saved.

Folks, here we are, two decades into the 21st Century. Yet, we have a highly “un-representative” Supremes’ GOP majority that has willingly promoted the anti-democracy antics of, and carried water for, a patently corrupt White Nationalist regime seeking to “Dred Scottify” tens of millions of persons of color, religious minorities, and those “suspected” of not supporting the GOP.

Even if many would like to, this is not something that can simply be swept under the table (again). Failure of the Supremes majority to stand up for the individual rights and human dignity of all persons in America is something that will haunt us until it is fixed or we disappear as a nation!

Lousy judging has a huge cost for humanity and democracy. We need and deserve better from the highest levels of our privileged, yet too often ineffective and feckless in the face of tyranny, life-tenured judges!

Better Judges for a Better, Fairer America.🇺🇸 Make Equal Justice Under Law ⚖️ A Reality Rather Than an Ongoing, Judicially-Enabled, Charade!

Due Process Forever!⚖️🗽🇺🇸

PWS

01-04-21

DEMS NEED TO STOP REPEATING THE BOGUS 🤥 NARRATIVES ABOUT THE (LARGELY SELF-CREATED & OVERBLOWN) “SOUTHERN BORDER CRISIS:” Channeling “Courtside,” Yale Schacher Sets Forth A Plan For Using Experts To Not Only Reinstitute But Drastically Improve Due Process ⚖️🗽🇺🇸 For Asylum Seekers! — It’s NOT Rocket 🚀 Science!

Yael Schacher
Historian
Senior U.S. Advocate
Refugees International

https://www.refugeesinternational.org/reports/2020/12/17/building-better-not-backward-learning-from-the-past-to-design-sound-border-asylum-policy

Introduction

President-elect Biden has promised a broad array of reforms that would impact refugees, asylum seekers, and other forced migrants. He has indicated he will restore Temporary Protected Status, place a moratorium on deportations, and end prolonged detention and for-profit detention centers. These are all crucially important to the safety and security of migrants and their families in the United States and other countries, especially in the Western Hemisphere. President-elect Biden has also promised to end the Trump administration’s policy of making asylum seekers “remain in Mexico” while awaiting hearings in U.S. immigration court.

However, in recent weeks, a flawed and fatalistic view of migration to the U.S. southern border has taken hold in some media accounts and reports. It goes like this: President Trump’s Remain in Mexico (or MPP) policy has created a logistical and humanitarian crisis at the southern U.S. border that, despite President-elect Biden’s promises, will be very difficult to undo. Further, a combination of pull and push factors (especially in the wake of hurricanes in Central America) will lead to increased migration to the southern U.S. border this spring such that President-elect Biden will have little choice but to keep the border sealed under an order from the Centers for Disease Control and Prevention (CDC), as he attempts to deal with COVID-19 in border states and fulfill other immigration policy promises—including uniting families the Trump administration ripped apart two years ago.

There are several problems with this line of argument, many of which are addressed in this report. Most fundamentally, keeping the border sealed and migrants waiting in Mexico will perpetuate serious abuses. Family separations and other violations of human rights, as well as violations of U.S. law, will continue to occur under a Biden administration that does not implement new policies at the border. Recently, MPP and the CDC border closure have exacerbated smuggling and trafficking at the border, as well as other forms of abuse against migrants. For example, the CDC order has led to the repatriation of Nicaraguan dissidents as well as the return of a sexually abused Guatemalan child. It has also led asylum seekers to try to cross undetected in remote desert areas. Further, unwinding MPP and allowing asylum seekers to ask for protection at the border is not only the right thing to do, but also feasible with the proper planning. Indeed, it presents the incoming administration with an opportunity to rethink migration management, especially for those seeking asylum, and to implement a new screening process that is both more humane and more efficient.

President-elect Biden has invoked President Franklin Delano Roosevelt—healer, rebuilder, and practical problem solver—as a model. During World War II, Roosevelt planned and devoted significant resources to resolving the largest displacement crisis the world had ever known. This planning was part of an effort to ensure that what happened in 1939 to the S.S. St. Louis—a ship of asylum-seeking Jews turned away by the United States and other countries—would not occur again.

During his first week in office, President-elect Biden should issue an executive order on border asylum policy that departs dramatically from that which President Trump put forth during his first week. President Biden’s executive order should give asylum seekers access to the border and provide for cooperation with border states and shelters to safely and humanely receive asylum seekers. It should allocate resources to alternatives to detention, including case management, and to improved adjudication of asylum claims in immigration courts, especially through provision of legal services. It should also commit to ending practices associated with expedited removal of asylum seekers that have resulted in abuses, and to the use of parole to unwind MPP. Finally, through revocation of Trump administration decisions, regulations, and policies, as well as through settlement of lawsuits and the withdrawal of appeals to federal courts regarding these policies, the executive order should commit to restoring asylum eligibility to those who have fled persecution but have been denied or prevented from obtaining protection.

In taking such action, President-elect Biden would be fulfilling not only his campaign promises but the commitment he made when he voted for Senate passage of the Refugee Act of 1980. That law, supported by large majorities of both parties, promised to ensure fair access to asylum at the border.

This report shows why it is imperative that the Biden administration do this rather than keep us mired in a policy framework that does not work and that has led to a cycle of crises. It does so by looking back to a momentous time of transition about thirty years ago. With the Cold War ending, the United States had to rethink its assumptions about who merited refugee status. Only a handful of refugee resettlement slots in the U.S. Refugee Program were allotted to Central Americans, and the United States had not yet developed clear procedures for effectively handling asylum seekers at the southwestern border. Rather than acknowledge the forces pushing people northward, U.S. policymakers adopted a paradigm that was focused primarily, if not exclusively, on deterrence. This is a paradigm that we are still in today.

At different points over the past thirty years, humanitarian and constructive policies have tempered the harshness of this paradigm, and such policies have also brought benefits in terms of cost and efficiency. These policies need to be adapted and scaled up. But they also need to be placed within a welcoming framework that does not presume asylum seekers are a threat. Instead of devoting tremendous resources to a futile and rights-violating attempt to block those already on the move, we have to try to better understand the drivers of migration, which, for Central Americans, include corruption, poverty, insecurity, and violence. We must devote resources instead to humanely receiving asylum seekers and adjudicating their claims fairly. We also have to stop assuming that the best place to manage admissions of all Central Americans seeking protection is at the border.

The Deterrence Paradigm

The deterrence paradigm has been implemented repeatedly using the same counterproductive strategies.

. . . .

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

Read the rear of Yael’s article at the link.

👍🏼👍🏼👍🏼👍🏼👍🏼⚖️🗽🇺🇸

Folks like my Round Table 🛡⚔️ colleague Judge Paul Grussendorf and I have been “preaching” for an abandonment of the unlawful, inhumane, incredibly wasteful, and demonstrably ineffective “deterrence paradigm.”

The skill set to establish a lawful, better, humane, efficient asylum system, consistent with our Constitutional, statutory, and international obligations is out there, mainly in the private/NGO/academic communities. I/O/W the “practical scholars, litigators, and advocates” in the NDPA.

It’s a just a question of the incoming Biden/Harris Administration getting beyond the “enforcement only” mentality, personnel, and White Nationalist nativist thinking that currently infects the entire USG immigration bureaucracy, at all levels. Replace the current failed leadership with experts from the NDPA and empower them to work with other experts in the private sector to institute a better system that would be no more costly, likely less, than the current “built to fail” abominations that not only waste resources but destroy human lives and are an ugly stain on our national conscience!

I also appreciate Yael’s recognition of the pressing and compelling need to “end the Clown Show 🤡🦹🏿‍♂️☠️@ EOIR:”

Immigration Court Reform

EOIR policies during the Trump administration have been at odds with principles of due process and judicial independence. These include the imposition of numeric case completion quotas and docket management policies that deprive asylum seekers of procedural protections; appointment of judges who almost exclusively come from prosecutorial backgrounds (especially working at DHS and in law enforcement); promotion to permanent positions on an expanded BIA of judges with asylum denial rates much higher than the national average; and procedures that limit the ability of claimants to effectively appeal their cases. The Biden administration should conduct an urgent review of EOIR hiring practices and immigration court procedures and develop recommendations for regulatory or structural changes consistent with the protection needs of asylum seekers.

The critical “urgent review” should be done by a “Team of Experts from the NDPA” brought in on an immediate temporary basis, if necessary, in accordance with Federal Personnel Rules, to replace the current Senior “Management” @ EOIR as well as the entire BIA. There’s no better way to fix the system than to take over management, restore fairness and order, and get inside the current disastrous mess @ the Clown Show 🤡🦹🏿‍♂️! Importantly, the “Team of Experts” with effective operational control could immediately begin fixing (and conversely stop aggravating and creating) the glaring problems while putting the structure and personnel in place for long-term reforms.

Lives ☠️⚰️ are at stake here! We need ACTION, not merely study and evaluation. “Fixing the system on the fly” may be challenging, but it’s perfectly within the capabilities of the right team of NDPA experts! Dems often prefer study and dialogue to effective actions. As Toby Keith would say: We need “a little less talk and a lot more action.”

(Toby Keith: https://www.google.com/search?q=%22a+little+less+talk+and+a+lot+more+action&ie=UTF-8&oe=UTF-8&hl=en-us&client=safari)

Due Process Forever! It’s NOT rocket 🚀 science!

PWS

12-30-20

⚖️🗽JOAN HODGES WU, 🦸‍♀️😇EXECUTIVE DIRECTOR OF ASYLUMWORKS, SPEAKS OUT ON NEW SUITS TO PROTECT HUMANITY FROM FURTHER ABUSE BY THE KAKISTOCRACY🤮☠️⚰️🏴‍☠️👎🏻!

FOR IMMEDIATE RELEASE

Contact:

Tara Tidwell Cullen, NIJC, ttidwellcullen@heartlandalliance.org, (312) 833-2967
Asylum Seekers and Service Providers Sue Trump Administration

to Stop Rules that Block Access to Work Permits

WASHINGTON, D.C.(December 23, 2020) — A group of asylum seekers and immigrant services organizations are suing the Department of Homeland Security (DHS), purported Acting Secretary Chad Wolf, and purported Acting DHS General Counsel Chad Mizelle to vacate two rules that have drastically curtailed access to work authorization and identity documentation for people who flee to the United States and apply for asylum protection. The new rules, in effect since August, force asylum seekers to wait years for their cases to move through the backlogged immigration system before they may lawfully earn an income.

“These rules were one cruel part of the Trump administration’s continuous efforts throughout its single term in office to dismantle the United States’ commitment to provide refuge to people fleeing persecution,” said Keren Zwick, litigation director for the National Immigrant Justice Center, which is co-counsel in the case. “These particular rules betray so much of what our country is supposed to value; they try to deter asylum seekers from coming at all and deprive those who make it here of the means to support themselves and their families.”

The rules bar asylum applicants from receiving work permits for at least a year after they file their asylum applications and prevent some individuals from working for the entire duration of their cases — often several years.

Quinn Emanuel Urquhart & Sullivan, LLP, the Center for Gender & Refugee Studies, and Kids in Need of Defense also are providing co-counsel in the case, representing 14 individuals and three organizational plaintiffs before the U.S. District Court for the District of Columbia.

The individual plaintiffs in the case are asylum seekers, including transgender women and parents with small children, who fled political persecution, gender-based violence, or gang and drug-cartel violence and are prevented under the new rules from receiving work permits. Three organizational plaintiffs — AsylumWorks, Tahirih Justice Center, and Community Legal Services in East Palo Alto — say the new rules threaten to derail their missions to provide employment assistance and legal and social services to asylum seekers. Asylum seekers’ ability to earn an income is critical for them to be able to pursue their legal cases and meet basic needs such as housing and mental and medical healthcare, and to avoid falling victim to human trafficking or other exploitation. Furthermore, in many states, work permits are the only identification documentation asylum seekers receive until they are granted protection.

“This lawsuit is about upholding basic human dignity,” said Joan Hodges-Wu, founder and executive director of AsylumWorks, lead plaintiff in the case. “Asylum seekers are simply looking for a fair shake — the chance to work, pay for their own housing, feed and clothe their families. Our asylum system should be rooted in justice and compassion. Instead, this policy forces future Americans — many of whom have already escaped unspeakable hardship — into further danger and depravity. This is a crisis the Trump Administration is determined to make worse. Denying the right to work for one year means unnecessarily delaying the time before asylum seekers can become productive, tax-paying members of the workforce, and denying our country vital frontline workers willing to risk their lives at this critical time.”

“These rules will force courageous survivors of violence into dangerously precarious living situations, needlessly compounding their suffering. They will also make it significantly more difficult for asylum seekers to afford legal representation, which we know can make a life-saving difference in these cases, and to sustain themselves and their families while they seek protection,” said Annie Daher, staff attorney at the Center for Gender & Refugee Studies, co-counsel in the case. “The rules will undoubtedly result in refugees being wrongly denied asylum and ordered deported to the very dangers they have fled.”

In its comments to the Federal Register, the Trump administration said that governments should take responsibility for individuals who may be harmed by the rule, stating that asylum seekers who may become homeless as a result of the rule changes should “become familiar with the homelessness resources provided by the state where they intend to reside.”

The plaintiffs ask the district court to vacate the proposed rules, arguing the rules violate U.S. laws and that the government did not provide adequate rationale for the harm the rules would cause. The lawsuit also argues that Wolf was not validly serving in that role when the agency issued the rules and Mizelle was no longer validly serving in that role when he signed the rules. Federal courts have already found that Wolf was not lawfully appointed to his position when he enacted other harmful immigration rules, including the administration’s failed attempt to end the Deferred Action for Childhood Arrivals program.

Additional plaintiffs in the case offered the following statements:

Richard Caldarone, litigation counsel, Tahirih Justice Center: “Instead of allowing those fleeing violence and persecution to live their lives while they pursue relief in the United States, the government has deliberately chosen to condemn survivors and other asylum seekers to lengthy periods of homelessness, food insecurity, and unnecessary poverty. There are many understandable reasons why survivors of violence may wait more than a year to apply for asylum – including the need to heal from trauma or the need to avoid reliving painful memories. Our immigration system must uphold the right for survivors to work while their cases continue, rather than slamming the door shut to safety.”

Misha Seay, Managing Attorney, Community Legal Services in East Palo Alto: “These rules are a cruel attempt at forcing asylum seekers into poverty and homelessness if they choose to move forward with their asylum claims and wait for their day in court, which in some cases may take years. Asylum seekers will be stuck in a catch-22 of being unable to afford an attorney to help them apply for a work permit and seek asylum, and unable to lawfully work and earn a living so that they can afford to hire an attorney,” says Misha Seay, Managing Attorney at Community Legal Services in East Palo Alto. “Our government’s commitment to providing protection to those fleeing persecution cannot be fulfilled if we make their everyday life impossible while they navigate that process.”

###

The National Immigrant Justice Center is a nongovernmental organization dedicated to ensuring human rights protections and access to justice for all immigrants, refugees, and asylum seekers through a unique combination of direct services, policy reform, impact litigation, and public education.

Read this statement on NIJC’s website

NATIONAL IMMIGRANT JUSTICE CENTER
224 S. Michigan Avenue, Suite 600 | Chicago, Illinois 60604
immigrantjustice.org

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

Thanks, Joan, my friend and a true hero of the NDPA, for speaking out and taking action to fight the “crimes against humanity” that continue to be committed by the kakistocracy and their baggage handlers on their way out the door!

Under Joan’s dynamic and courageous leadership, AsylumWorks has been providing support and community assistance services to asylum seekers in the D.C. area for several years. She has now expanded her organization’s mission to include impact litigation to protect and enhance the human dignity and the human rights of asylum seekers!

Check out AsylumWorks and their great programs (and contribute to this most worthy cause) at their website here:

https://asylumworks.org/

Due Process Forever!⚖️🗽🇺🇸

PWS

12-23-20

🏴‍☠️KAKISTOCRACY DEATH ⚰️ WATCH: New NDPA Suits Challenge EOIR/DHS Scheme To Implement Grauleiter Miller’s 🤮☠️ Neo-Nazi “Kill Asylum” Regs In Regime’s Final Days! — The Disrespect For The Rule Of Law & Contempt For Humanity Run Deep At Flailing, Failed Agencies!

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/lawsuits-challenge-massive-end-of-asylum-rule

Dan Kowalski reports from LexisNexis Immigration Community:

Lawsuits Challenge Massive “End of Asylum” Rule

1. Pangea Legal Services, et al. v. DHS et al. – “[T]he Center for Gender & Refugee Studies, the Harvard Immigration and Refugee Clinical Program, and Sidley Austin LLP filed suit today challenging the mammoth asylum rule in the Northern District of California on behalf of organizational plaintiffs Pangea Legal Services, Dolores Street Community Services, Inc., CLINIC, and CAIR Coalition. The complaint challenges all substantive and procedural merits related issues (it does not challenge the changes to credible fear).” – Blaine Bookey, Legal Director, Center for Gender & Refugee Studies, University of California Hastings College of the Law

2. Human Rights First v. Wolf – “Human Rights First, alongside counsel at Williams & Connolly, filed a lawsuit challenging the Trump administration’s sweeping new anti-refugee regulation, which will gut protections for those seeking asylum and make it virtually impossible for refugees to secure asylum in the United States.

The lawsuit, filed in the United States federal district court in Washington, D.C., asks the court to intervene and stop the government from enforcing the rule, which is scheduled to take effect on January 11, 2021.

“This rule seeks to end asylum in the United States as we know it. Over the past four years, this administration has employed an array of tools in the hope of dismantling the legal protections Congress provided for refugees and asylum seekers,” said Hardy Vieux, Human Rights First’s senior vice president, legal. “Human Rights First is heading back to federal court to dash that hope. And to affirm that Congress sought to protect people fleeing persecution, not demonize them incessantly, even in the waning days of an administration long consumed with denying protection to those most in need of it. This holiday season, and every season, we shall continue to exalt the rule of law.”

Human Rights First v. Wolf et. al. challenges the Department of Homeland Security and Department of Justice’s rule, rammed through in the waning days of the Trump administration. The complaint in Human Rights First v. Wolf et. al. can be found here.

Human Rights First, an organizational plaintiff in the suit, argues that the rule violates the Immigration and Nationality Act (INA), the Administrative Procedure Act, international law, and the United States Constitution. In its complaint, Human Rights First argues, “If allowed to stand, the rule will eviscerate the ability of noncitizens fleeing persecution to obtain asylum and related relief in the United States. The United States will instead send refugees back to countries where they face persecution, torture, and possible death—the very outcome Congress expressly designed the INA to avoid.”

The rule, which fundamentally rewrites United States asylum law, will illegally render the majority of asylum seekers ineligible for asylum while tilting every phase of the asylum process in favor of denial and deportation. The rule also upends the procedures for asylum adjudication, further limiting procedural protections for refugees seeking protection in the United States.

The United States government is attempting to make it impossible for our asylum-seeking clients to secure protection. Many of Human Rights First’s clients who have already been granted asylum would, under the rule, be denied protection. One Human Rights First asylum-seeking client stated, “[I]t really disappoints me to learn that the United States, a country [I] have looked up to as a beacon of freedom, is trying to put people like me in harm’s way. I fear for my safety.”

Through this lawsuit, Human Rights First is standing up for the rights of asylum seekers like our clients. Human Rights First’s comments this past summer opposing the draft rule are here.

Human Rights First provides pro bono legal representation for refugees seeking asylum in the United States, in partnership with volunteer lawyers at many of the nation’s leading law firms. Our refugee clients have fled persecution in Cameroon, China, Cuba, El Salvador, Guatemala, Eritrea, Honduras, Iraq, Nicaragua, Syria, Venezuela, and other countries where their lives and freedom are at risk.’

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

Thanks to all the NDPA heroes involved in this effort!

Hey hey, ho ho, the EOIR Clown Show 🤡🤮 has got to go!

EOIR Clown Show Must Go T-Shirt — “EOIR Clown Show Must Go” T-Shirt Custom Design Concept

Due Process Forever!⚖️🗽🧑🏽‍⚖️👩‍⚖️🇺🇸

PWS

12-22-20

⚔️🛡SIR JEFFREY ON THE LIFE-SAVING IMPORTANCE OF COMMENTING: Yeah, Preparing Regulatory Comments Is A Royal Pain In The Butt, Particularly When You Know The Malicious Incompetents In The White Nationalist Regime Won’t Pay Any Attention — But, Federal Judges 🧑🏽‍⚖️⚖️ Often Do!

https://www.google.com/url?q=https://www.jeffreyschase.com/blog/2020/12/2/pangea-v-dhs-the-power-of-comments&source=gmail-imap&ust=1607531177000000&usg=AOvVaw2vQATGEpuX0Oss0KcQPyVx

Pangea v. DHS: The Power of Comments

The constant stream of proposed regulations relating to our immigration laws has led to a continuous call to the public to submit comments to those rules. Individuals and organizations have responded in large numbers, in spite of the short 30 day comment windows this administrative has generally afforded. For those who have questioned the purpose of submitting comments or have wondered if the effort was worth it, I point to the recent decision of U.S. District Court Judge Susan Illston in the Northern District of California in Pangea Legal Services v. DHS granting a temporary restraining order against regulations that classify a wide range of crimes as bars to asylum eligibility.

As background, I would like to point to the explanation of the notice and comment procedures provided by U.S. District Court Judge Timothy J. Kelly last year in CAIR Coalition v. Trump. In that case, the Departments of Justice and Homeland Security attempted to bypass the process by publishing final rules with no opportunity to comment. Judge Kelly (who happens to be a Trump appointee) found that the avoidance of comments invalidated the regulations, explaining that the “procedures are not a mere formality. They are designed (1) to ensure that agency regulations are tested via exposure to diverse public comment; (2) to ensure fairness to affected parties, and (3) to give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review.”

It is further worth noting that comments become part of the public record, and that the Administrative Procedures Act requires the agency to respond to all significant comments before the regulations can become final.

In accordance with this scheme, a brief comment period was provided as to the regulations covered in Pangea. The proposed rule sought to expand the category of “particularly serious crimes” that Congress has designated as a bar to asylum. Instead of allowing immigration judges to make such determinations on a case-by-case basis, the new rule sought to add a broad range of criminal conduct that the Departments of Justice and Homeland Security originally argued should categorically bar asylum as particularly serious crimes.

Commenters pointed out the flaws with this proposal, not the least of which was some of the offenses are not particularly serious. The crimes include harboring certain noncitizens (even if they are family members), or possessing or using false identity documents (for example, to work and support one’s family). These offenses are a far cry from the type of behavior that would pose such a threat to society as to outweigh the obligation to provide refugee protection. In publishing the final rule, the Departments did acknowledge these concerns raised in the comments. However, as explained above, more than mere acknowledgement was required.

Although Judge Illston found numerous reasons to support the granting of the temporary restraining order, one of those reasons was the Departments’ failure to respond to the above comments as required. As Judge Illston wrote, “when commenters pointed out that the new bars would include minor conduct and conduct that cannot be categorized as particularly serious or even dangerous, the Departments either declined to respond or else relied on their authority under § 1158(b)(2)(C).”

In other words, when the comments received caused the Departments to realize that their claimed justification for the rule under the statute’s “particularly serious crime” provision was problematic, instead of addressing those comments as they were required to do, the agencies instead replied “Particularly serious crimes? Is that what you thought we said? We meant they were similar to particularly serious crimes. Sorry for the confusion; let’s just say the changes fall under section 1158(b)(2)(C) for the sake of clarity.”

That section which the Departments now chose to rely on contains vague language allowing the Attorney General to establish by regulation “additional limitations and exceptions, consistent with this section” under which noncitizens might be ineligible for asylum. The Departments might not have noticed the words “consistent with this section,” which would seem to rule out their disregarding the fact that Congress had allowed only a few narrow statutory limitations to the right to asylum that tend to be consistent with international law. That might explain their reading of the clause as an invitation to impose any limitation on asylum the Departments desired, with no regard to international law obligations.

But besides from the permissibility of the Departments’ interpretation of the clause, Judge Illston categorized their tactics as evasion. The judge wrote that “the Departments initially stated they were relying in part on their authority to designate new offenses as particularly serious crimes. They then disclaimed reliance on that authority but said the new offenses were ‘similar to’ particularly serious crimes… And they declined to address commenters’ concerns that the Rule now bars crimes that do not rise to the level of particularly serious because, according to the Departments, they are not, in fact, designating new particularly serious crimes and any comments to that point ‘are outside the scope of this rulemaking.’”

Much thanks are owed to the lawyers and organizations who litigated and filed supporting briefs in Pangea; they managed to block yet another effort by this administration that sought to undermine the very nature of refugee protection. But thanks are also due to those who took the time and effort to submit comments. Hopefully, this will provide inspiration to continue to submit comments to new regulations still being proposed in these final days before what will hopefully be a return to normalcy, decency, and respect for the rule of law.

Copyright 2020 Jeffrey S. Chase. All rights reserved.

Republished by permission.

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

While many Federal Judges have been receptive and stopped illegal (and often immoral) regulations in their tracks, there is one key group of jurists so in the regime’s White Nationalist pocket that they don’t pay any much attention. That is the GOP majority on the Supremes, who have happily treated the Trump/Miller racist agenda of “Dred Scottification” of asylum seekers and other migrants with kid gloves. At the request of an “ethics free” Solicitor General, the majority has used corrupt procedural moves to interfere with the lower courts and advance the regime’s agenda while accepting obvious factually and legally inaccurate “pretexts” to “justify” the regime’s extreme, racist, dehumanizing actions.

Imagine all the positives for America that could be accomplished if all of the time and resources devoted to blocking an avalanche of illegal regulations and litigating them through the Federal courts were instead devoted to working for the public good. That’s actually what government is supposed to do. But, fascist regimes and their enablers, not so much.

Ultimately, better qualified, more scholarly, human, and humane Justices — judges distinguished for their wisdom, courage, humanity and constructive problem solving abilities rather than adherence to some far-right agenda — on the Supremes will be necessary for a better, more equal, America.

Life tenure means it will be a slow process of getting the right “Supreme Team” in place. But, one that needs to begin somewhere. A remade U.S. Immigration Court seems like a good starting place for building a better Federal Judiciary at all levels, bottom to top!

Due Process Forever!

PWS

12-03-20

🗽⚖️🇺🇸YAEL SCHACHER @ REFUGEES INTERNATIONAL FILES AMICUS BRIEF ON WHY “REMAIN IN MEXICO” IS A “CRIME AGAINST HUMANITY” — “When I wasn’t visiting border, I was trying to understand how the U.S. government could put in place a policy that seemed the very antithesis of what seeking asylum was supposed to be, as articulated in Refugee Act of 1980.”

https://www.google.com/url?q=https://www.refugeesinternational.org/reports/2020/11/25/le4a9nihwqnhgcn0q2l5fufa8fah6v&source=gmail-imap&ust=1606928318000000&usg=AOvVaw0Fc_OTkc3MFgBm5dijso0i

. . . .

When I wasn’t visiting border, I was trying to understand how the U.S. government could put in place a policy that seemed the very antithesis of what seeking asylum was supposed to be, as articulated in Refugee Act of 1980. I had spent my time before coming to Refugees International researching the writing and passage of that law and the development of the contemporary asylum system since 1980. The Remain in Mexico policy is unprecedented. The U.S. government claims the authority for it lies in a provision of the 1996 immigration law that allows for the return of certain applicants for admission to contiguous territory to await processing. I began researching this provision and it became clear that it was not intended to apply to asylum seekers.

In support of a challenge to the Remain in Mexico program in California federal court, Refugees International and I, with attorneys from Sidley Austin LLP, submitted this brief describing why the Refugee Act forbids the program, a reality that the 1996 law does not change. The argument of the brief is that, when the 1980 Refugee Act was enacted, it was intended to establish a uniform process for consideration of asylum claims that would preclude this return to Mexico approach. A lynchpin in the argument is that there were two versions of the asylum provision of the Refugee Act—one proposed by Congresswoman Holtzman and one by Senator Edward Kennedy. Only the House version provided that asylum seekers at a land border be accorded the same ability to seek asylum as those already in the country. When, in conference, Holtzman’s version was accepted, Congress made a conscious choice in pursuit of uniformity in consideration of asylum requests: that the United States would treat asylum seekers at the border the same as it would all others. And the language mandating uniform treatment of asylum seekers in the 1980 Refugee Act was reiterated in the 1996 immigration law.

. . . .

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

The case is Immigrant Defenders Law Center v. Wolf, USDC, C.D. CA.

Read Yael’s intro, her outstanding brief prepared by Sidley Austin LLP, and the “Holtzman Papers” at the above link. Notably, Sidley Austin is one of the great firms that have helped our Round Table with amicus briefs! It’s what happens when you connect the dots among history, research, social justice, and the law. It’s why the Liberal Arts are the wave of a better future and a better Federal Judiciary! It’s all about perspective and problem solving!

Thanks Yael for all that you, Refugees International, and great pro bono lawyers like Sidley Austin do for justice and humanity.

The real problem here: A disgraceful Supremes’ majority 🏴‍☠️ that improperly “greenlighted” this totally illegal, racist-inspired, “crime against humanity,” cooked up by neo-Nazi hate monger Stephen Miller ☠️🤮, after it had properly and timely been enjoined by lower Federal courts. And, a complicit EOIR that consistently fails to provide due process and justice to asylum seekers is a huge part of the problem.

Unlike the Supremes, the EOIR Clown Show 🤡 can be removed and justice at all levels improved just by a putting the right experts from the NDPA in charge right off the bat.

Democratic Administrations, particularly the Obama Administration, have a history of not getting the job done when it comes to achievable immigration reforms within the bureaucracy. If you don’t want four more years of needless death, disorder, demeaning of humanity, and deterioration of the most important “retail level” of our justice system, let the incoming Biden Administration know: Throw out the EOIR Clown Show and bring in the experts from the NDPA to turn the Immigration Courts into real, independent courts of equal justice and humanity that will be a source of pride, not a deadly and dangerous national embarrassment!

Contrary to all the mindless “woe is me” suggestions that it will take decades to undo Stephen Miller’s (is he really that much smarter than any Democrat politico?) racist nonsense, EOIR is totally fixable — BUT ONLY WITH THE RIGHT FOLKS FROM THE NDPA IN CHARGE!

It’s only “mission impossible” if the Biden-Harris Administration approaches EOIR with the same indifference, lack of urgency, and disregard for expertise and leadership at the DOJ that has plagued past Dem Administrations on immigration, human rights, and social justice.

It won’t take decades, nor will it take zillions of taxpayer dollars! With the right folks in leadership positions at EOIR, support for independent problem solving (not mindless micromanagement) from the AG & DOJ, and a completely new BIA selected from the ranks of the NDPA, we will see drastic improvements in the delivery of justice at EOIR by this time next year. And, that will just be the beginning!

No more clueless politicos, go along to get along bureaucrats, toadies, and restrictionist holdovers calling the shots at EOIR, America’s most important, least understood, and “most fixable” court system! No more abuse of migrants and their representatives! No more ridiculous, “Aimless Docket Reshuffling” generating self-created backlogs! No more vile and stupid White Nationalist enforcement gimmicks being passed off as “policies!” No more “Amateur Night at The Bijou” when it comes to administration of the immigrant justice system at the DOJ under Dems!

Get mad! Get angry! Stop the nonsense! Tell every Democrat in Congress and the Biden Administration to bring in the NDPA experts to fix EOIR! Now! Before more lives are lost and futures ruined! It won’t get done if we don’t speak out and demand to be heard!

This is our time! Don’t let it pass with the wrong people being put in charge — yet again! Don’t be “left at the station” as the train of immigrant justice at Justice pulls out with the best engineers left standing on the platform and the wrong folks at the controls! Some “train wrecks” aren’t survivable! 🚂☠️⚰️

Due Process Forever!

PWS

11-28-20

🏴‍☠️RULE EXTENDING ASYLUM BARS TO BECOME FINAL NOV. 20, OVER OBJECTIONS OF ROUND TABLE, MANY OTHER EXPERTS — The Undoing Of U.S. Asylum Law Continues Full Speed Ahead!🤮

THE DEPARTMENTS OF JUSTICE AND HOMELAND SECURITY PUBLISH FINAL RULE TO RESTRICT CERTAIN CRIMINAL ALIENS’ ELIGIBILITY FOR ASYLUM

New Mandatory Bars Prevent Convicted Felons, Drunk Drivers, Gang Members, and Other Criminal Aliens from Receiving Asylum

WASHINGTON – Today, the Department of Justice and the Department of Homeland Security announced the publication of a Final Rule amending their respective regulations to prevent certain categories of criminal aliens from obtaining asylum in the United States. The rule takes effect 30 days after publication of the Final Rule in the Federal Register, which is scheduled to occur on Wednesday, Oct. 21.

Asylum is a discretionary immigration benefit that generally can be sought by eligible aliens who are physically present or arriving in the United States, irrespective of their status, as provided in section 208 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1158. However, in the INA, Congress barred certain categories of aliens from receiving asylum. In addition to the statutory bars, Congress delegated to the Attorney General and the Secretary of Homeland Security the authority to establish by regulation additional bars on asylum eligibility to the extent they are consistent with the asylum statute, as well as to establish “any other conditions or limitations on the consideration of an application for asylum” that are consistent with the INA. To ensure that criminal aliens cannot obtain this discretionary benefit, the Attorney General and Secretary of Homeland Security have exercised their regulatory authority to limit eligibility for asylum for aliens who have engaged in specified categories of criminal behavior.

The new bars apply to aliens who are convicted of:

(1) A felony under federal or state law;

(2) An offense under 8 U.S.C. § 1324(a)(1)(A) or § 1324(a)(1)(2) (Alien Smuggling or Harboring);

(3) An offense under 8 U.S.C. § 1326 (Illegal Reentry);

(4) A federal, state, tribal, or local crime involving criminal street gang activity;

(5) Certain federal, state, tribal, or local offenses concerning the operation of a motor vehicle while under the influence of an intoxicant;

(6) A federal, state, tribal, or local domestic violence offense, or who are found by an adjudicator to have engaged in acts of battery or extreme cruelty in a domestic context, even if no conviction resulted; and

(7) Certain misdemeanors under federal or state law for offenses related to false identification; the unlawful receipt of public benefits from a federal, state, tribal, or local entity; or the possession or trafficking of a controlled substance or controlled-substance paraphernalia.

Aliens who have committed certain domestic violence offenses, even if not convicted, will also be barred from asylum.

###

_________________________________________

Executive Office for Immigration Review

Office of Policy

Communications and Legislative Affairs Division

PAO.EOIR@usdoj.gov

703-305-0289

I adopt the comment of my friend and colleague Judge Ilyce Shugall, the “lead drafter” of the Round Table’s 🛡⚔️🗽⚖️comments in opposition:

This is so awful, but not unexpected. We will keep filing comments in the hopes that a new administration reads them carefully and can un-do the harm that has been done.

Hon. Ilyce Shugall
U.S. Immigraton Judge (Retired)
Director, Immigrant Legal Defense Program, Justice & Diversity Center of the Bar Assn. of San Francisco.

Due Process Forever!

PWS

10-20-20

👩‍⚖️⚖️ONE MEAN☠️🤮⚰️ MOTHER: Soon-To-Be Justice Barrett’s Immigration Jurisprudence Shows Cruelty, Legal Ignorance, Lack Of Empathy For The Vulnerable Humans Whose Lives Are At Stake In An Unconstitutional System Rigged Against Them!

Judge Amy Coney Barrett — Supreme Court Nominee by Bob Englehart, PoliticalCartoons.com
Published under license

Dahlia Lithwick
Supreme Court Reporter
Slate
Wikimedia Commons — Public Domain

https://slate.com/news-and-politics/2020/10/democrats-amy-coney-barrett-confirmation-supreme-court-chat.html

Dahlia Lithwick & Mark Joseph Stern in Slate:

. . . .

Dahlia: I wonder what you thought of Barrett’s statement, about how she reads each of her opinions through the eyes of the losing party. As you have written, the losing party tends to be the prisoners, the Black worker, the teen seeking abortion, the asylum seeker. It reminded me of Justice Samuel Alito testifying at his hearings about his great solicitude for immigrants.

Mark: Barrett’s opening statement made me think about one of her worst decisions (so far), in which she approved the deportation of an asylum seeker because there were small, trivial variations in his account of persecution. Over a dissent, Barrett said, yep, this asylum seeker must be sent home to be tortured and murdered because tiny details in his story changed over time. Would a judge who views the case through the eyes of the asylum seeker really dismiss his claims so cavalierly? I doubt it.

. . . .

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

Read the complete dialogue at the link.

So much for intellectual honesty! It also shows Barrett’s fundamental lack of experience and legal understanding of what Immigration “Courts” really are and how they have been politicized and weaponized against asylum seekers by “judges” who report to overtly biased and xenophobic politicos in the Executive Branch. Just how would this “naked farce” satisfy any rudimentary concept of Due Process? Clearly it doesn’t. And just as clearly, intentionally tone-deaf judges like Barrett don’t care! They lack the guts, relevant experience representing migrants, and the intellectual presence to stand up for the Constitutional and human rights of “the other.”

How would YOU like to be sentenced to torture and/or death based on trivial inconsistencies found by an Immigration “Judge” working directly for the Attorney General and his regime in a badly flawed assembly line process designed to achieve political policy objectives, not justice?

Also, did anyone else pick up the facial absurdity of Barrett’s disingenuous claim to be “apolitical” while pledging allegiance to GOP “superhero” the late Justice Antonin Scalia, probably the most overtly “political Justice” of modern times?

Bottom Line: Once you’re out of the womb, this is one mother you don’t want on your case!🏴‍☠️☠️⚰️

Better Judges For A Better America! Judge/Justice Barrett is part of the problem, not the solution! The best way to insure that she is among the last, far-right, anti-democracy, inhumane judges given life tenure on the Supremes or anywhere else, vote ‘em out, vote ‘em out! Then, we’ll discover the “true meaning” of Barrett’s “I’m not there to make policy nonsense!” (Indeed, I would submit that the sole reason for her appointment was the GOP’s belief and expectation that she will reliably elevate disingenuous right-wing policies, biases, and prejudices over the Constitutional, individual, and human rights of individuals and that she will be a steadfast opponent of Constitutionally-required equal justice under law.)

Justice for the George Floyds, Breonna Taylors, dehumanized dead asylum seekers, and wrongfully imprisoned migrant kids of the world (e.g., the end of unconstitutional “Baby Jails”) will require a different type of “Justice” than Amy Coney Barrett in the future! Far from being truly “independent” and “apolitical,” Barrett is likely to be the perfect representative of the warped man who appointed her and his anti-democracy party. And, that’s likely to cause problems for all Americans of good will far into the future!

PWS

10-13-20

🏴‍☠️☠️🤮⚰️👎CRIMES AGAINST HUMANITY, “PERPS” ON THE LOOSE! — DOJ Internal Report Shows How “Gonzo Apocalypto” Sessions, Rosenstein, Hamilton Conspired To Separate Migrant Kids In Violation Of 5th Amendment — When Will These Criminals Be Charged & Prosecuted Under 18 USC 242? — NY Times Reports!

Sessions in a cage — Jeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com
Republished under license

https://www.nytimes.com/2020/10/06/us/politics/family-separation-border-immigration-jeff-sessions-rod-rosenstein.html?campaign_id=9&emc=edit_nn_20201007&instance_id=22889&nl=the-morning&regi_id=119096355&section_index=2&section_name=the_latest_news&segment_id=40077&te=1&user_id=70724c8ee3c2ebb50a6ef32ab050a46b

‘We Need to Take Away Children,’ No Matter How Young, Justice Dept. Officials Said

Top department officials were “a driving force” behind President Trump’s child separation policy, a draft investigation report said.

By Michael D. Shear, Katie Benner and Michael S. Schmidt

Oct. 6, 2020

505

WASHINGTON — The five U.S. attorneys along the border with Mexico, including three appointed by President Trump, recoiled in May 2018 against an order to prosecute all undocumented immigrants even if it meant separating children from their parents. They told top Justice Department officials they were “deeply concerned” about the children’s welfare.

But the attorney general at the time, Jeff Sessions, made it clear what Mr. Trump wanted on a conference call later that afternoon, according to a two-year inquiry by the Justice Department’s inspector general into Mr. Trump’s “zero tolerance” family separation policy.

“We need to take away children,” Mr. Sessions told the prosecutors, according to participants’ notes. One added in shorthand: “If care about kids, don’t bring them in. Won’t give amnesty to people with kids.”

Rod J. Rosenstein, then the deputy attorney general, went even further in a second call about a week later, telling the five prosecutors that it did not matter how young the children were. He said that government lawyers should not have refused to prosecute two cases simply because the children were barely more than infants.

“Those two cases should not have been declined,” John Bash, the departing U.S. attorney in western Texas, wrote to his staff immediately after the call. Mr. Bash had declined the cases, but Mr. Rosenstein “instructed that, per the A.G.’s policy, we should NOT be categorically declining immigration prosecutions of adults in family units because of the age of a child.”

The Justice Department’s top officials were “a driving force” behind the policy that spurred the separation of thousands of families, many of them fleeing violence in Central America and seeking asylum in the United States, before Mr. Trump abandoned it amid global outrage, according to a draft report of the results of the investigation by Michael E. Horowitz, the department’s inspector general.

The separation of migrant children from their parents, sometimes for months, was at the heart of the Trump administration’s assault on immigration. But the fierce backlash when the administration struggled to reunite the children turned it into one of the biggest policy debacles of the president’s term.

Though Mr. Sessions sought to distance himself from the policy, allowing Mr. Trump and Homeland Security Department officials to largely be blamed, he and other top law enforcement officials understood that “zero tolerance” meant that migrant families would be separated and wanted that to happen because they believed it would deter future illegal immigration, Mr. Horowitz wrote.

The draft report, citing more than 45 interviews with key officials, emails and other documents, provides the most complete look at the discussions inside the Justice Department as the family separation policy was developed, pushed and ultimately carried out with little concern for children.

This article is based on a review of the 86-page draft report and interviews with three government officials who read it in recent months and described its conclusions and many of the details in it. The officials, who spoke on the condition of anonymity because they had not been authorized to discuss it publicly, cautioned that the final report could change.

Before publishing the findings of its investigations, the inspector general’s office typically provides draft copies to Justice Department leaders and others mentioned in the reports to ensure that they are accurate.

Mr. Horowitz had been preparing to release his report since late summer, according to a person familiar with the investigation, though the process allowing for responses from current and former department officials whose conduct is under scrutiny is likely to delay its release until after the presidential election.

Mr. Sessions refused to be interviewed, the report noted. Mr. Rosenstein, who is now a lawyer in private practice, defended himself in his interview with investigators in response to questioning about his role, according to two of the officials. Mr. Rosenstein’s former office submitted a 64-page response to the report.

“If any United States attorney ever charged a defendant they did not personally believe warranted prosecution, they violated their oath of office,” Mr. Rosenstein said in a statement. “I never ordered anyone to prosecute a case.”

. . . .

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

Read the complete article at the link.

U.S. District Judge Dana Sabraw concluded that intentional separation of families was unconstitutional — a clear violation of Fifth Amendment due process. https://www.nytimes.com/2018/06/26/us/politics/family-separations-congress-states.html

The Government did not seriously question the correctness of this finding!

Intentionally violating Constitutional rights (not to mention lying and attempting to cover it up) is clearly a violation of 18 USC 242.

Here’s the text of that section from the DOJ’s own website:

TITLE 18, U.S.C., SECTION 242

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

https://www.justice.gov/crt/deprivation-rights-under-color-law

Sure looks like an”open and shut” case for prosecution.

The irony: Families and their kids have been traumatized for life, perhaps even killed or disabled by the actions of these criminal conspirators; however, the “perps” remain at large.

Hamilton is on the public dole continuing to wreak-havoc on the Constitution, the rule of law, the Immigration Courts, and human decency at the corrupt Barr DOJ; Rosenstein works for a “fat cat” law firm hauling down a six figure salary while he avoids justice and accountability for his misdeeds; “Gonzo” had the absolute audacity to try to reinsert himself onto the public dole by running for the Senate from Alabama (thankfully, unsuccessfully, even though he previously held the seat for years and misused it as a public forum to spread his racist ideas, xenophobic venom, lies, false narratives, and unrelenting cruelty).

Where’s the “justice” in a system that punishes victims while letting “perps” prosper and go free?

Due Process Forever!

PWS

10-07-20

MARCIA BROWN @ NEW REPUBLIC — There Can Be No Due Process Without An Independent Immigration Court Staffed By Qualified Judges!

https://newrepublic.com/article/159530/best-way-protect-immigrants-whims-politics

. . . .

Paul Schmidt, who served as a board member and board chair of the Board of Immigration Appeals under the [Clinton] administration, said that Trump is not the first to manipulate the courts. In 2003, President George Bush’s Attorney General John Ashcroft removed board members whose views did not match the administration’s ideas for immigration. “You can track the downward trajectory of the immigration courts from Ashcroft,” he said. “We call it the purge. If you’re not with the program, your job could be on the line.… Ashcroft rejiggered the system so there’s no dissent.”

Schmidt said he “got bounced” because of his views, which makes him skeptical of the courts ever being independent in the current system. “How can you be a little bit independent?” he said. “It’s like being a little bit pregnant. You either are, or you aren’t.”

. . . .

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

Read the full article at the link.

Congrats to Marcia for recognizing that while the seeds of the current Immigration Court disaster originated in the Bush II Administration, they also grew steadily because of the Obama Administration’s mismanagement and misuse of the Immigration Courts.

Given a rare chance to create a truly progressive, due-process-oriented judiciary, without any interference from Mitch McConnell and the GOP, the Obama group chose another path. They promoted “Aimless Docket Reshuffling” at EOIR to meet improper political policy objectives. At the same time, they almost totally “shut out” the human rights, clinical, and immigration bars by appointing over 90% of Immigration Judges from Government backgrounds, overwhelmingly DHS prosecutors.

Notwithstanding a process that did not require Senate Confirmation, the Obama Administration politicos took a mind boggling average of two years to fill Immigration Court judicial vacancies! They also left an unconscionable number of unfilled positions on the table for White Nationalist AG Jeff Sessions to fill!

Sure, it’s not “malicious incompetence” like the Trump regime. But, for asylum applicants and other migrants whose lives and due process rights are now going down the drain at an unprecedented accelerated rate, the difference might be negligible.

Dead is dead! Tortured is tortured! Missed opportunities to save lives are lives lost!

First, and foremost, Biden/Harris need to get elected. But, then they must escape the shadow of Obama’s immigration failures and do better for the many vulnerable and deserving folks whose lives are on the line.

Shouldn’t be that hard! The progressive legal talent is out there for a better Federal Judiciary from the Immigration Courts to the Supremes.

It just requires an Administration that takes due process, human rights, human dignity, and equal justice for all seriously and recognizes that in the end, “it all runs through immigration and asylum!” The failure to establish a sound, independent, institutionalized due process and equal justice foundation at the U.S. Immigration Courts, the “retail level” of our courts, now threatens to infect and topple the entire U.S. justice system! We need to end “Dred Scottification” before it eradicates all of our individual rights.

Due Process Forever!

PWS

10-06-20

“A Complete Abdication of Our Humanitarian and Moral Duty” – Outside News – Immigration Law – LexisNexis® Legal Newsroom

Syrian Refugee photography work by Bengin Ahmad
Creative Commons License

From Dan Kowalski @ LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/outsidenews/posts/a-complete-abdication-of-our-humanitarian-and-moral-duty

“A Complete Abdication of Our Humanitarian and Moral Duty”

LIRS, Oct. 1, 2020

“The Trump administration proposed its annual refugee admissions ceiling just before midnight on Wednesday, September 30, committing to resettle just 15,000 individuals in Fiscal Year 2021, which would be the lowest admissions ceiling since the inception of the U.S. Refugee Admissions Program (USRAP).

The announcement comes on the heels of what was previously the lowest level of refugee admissions in American history. For FY 2020, which ended on September 30, the administration had set a goal to welcome just 18,000 refugees, in stark contrast to the average admissions ceiling of approximately 95,000 since the beginning of the USRAP. Despite this historically low target, the administration barely attained 65% of allotted admissions – resettling only 11,814 refugees this fiscal year, according to Lutheran Immigration and Refugee Service.

“In just four years, this Administration has cut the refugee resettlement program from 110,000 to a historic low of fifteen thousand. At a time of unprecedented global need, today’s decision to further cut the refugee admissions ceiling is a complete abdication of our humanitarian and moral duty.” said Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, a resettlement agency that has welcomed hundreds of thousands of refugees since 1939. “Let this serve as a wake-up call to those who believe this administration supports avenues of legal immigration. Refugees go through extreme vetting and have done everything our government has asked of them, yet they continue to be met with open hostility and egregious processing delays from this administration”

The record-low admissions figures have also disproportionately impacted certain groups. Admissions of Muslim refugees have declined to just 2,503, down from approximately 38,900 in FY 2016 and approximately 4,900 in FY 2019. Additionally, the Trump administration set aside 4,000 slots for Iraqi allies who assisted U.S. interests in their home country. However, it fell drastically short, resettling only 123 individuals in this category, or just 3% of the admissions goal.

“It shows the tragic extent to which we have abandoned our Iraqi allies who risked their lives, and those of their family members, to assist U.S. government and military personnel,” noted Vignarajah. “This further undermines our diplomatic and military efforts, rendering it nearly impossible to garner support from regional allies moving forward.”

Given FY2020’s record-low admissions numbers and an FY2021 proposed admissions ceiling of only 15,000, refugee advocates are deeply concerned by the human toll on the most vulnerable.

“In real terms, this means that families who have already waited years are forced to postpone reunification. It means that thousands who would otherwise find safety on our shores are left to languish in refugee camps, with no end in sight,” concluded Vignarajah. “This heartless decision is diametrically opposed to our values as a welcoming nation and it dishonors our common humanity at a time of dire need.”

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

Here’s then”Trump Regression” — From international leader, to outlier, to outlaw state!🏴‍☠️

This Fall, vote for a return to humanity and the rule of law!

PWS

10-02-20

⚖️HON. SHIRA SCHEINDLIN👩🏻‍⚖️ @ THE GUARDIAN: Barrett Nomination Part & Parcel Of GOP Destruction Of American Democracy! 🏴‍☠️ – The Continued Erosion Of The Supremes & The Federal Judiciary Is Destroying Our Nation!👎

https://www.theguardian.com/commentisfree/2020/sep/29/supreme-court-conservatives-trump-amy-coney-barrett?CMP=Share_iOSApp_Other

. . . .

This is no longer the case. Public confidence and public perception that the courts are non-partisan has eroded. The Republican boycott of Garland, together with Trump’s unprecedented nomination of Barrett and her likely confirmation, will seal the Republican theft of two supreme court seats, at least in the eyes of more than half the electorate, and will ensure conservative control of the court for decades to come.

If Barrett’s record is any indication, the court will soon turn its back on its most treasured precedents and turn America into a more regressive country. Before joining the bench just three years ago, she served as a law clerk to Scalia, whose judicial philosophy she has fully embraced. She has also been a longtime member of the rightwing Federalist Society.

Public confidence and public perception that the courts are non-partisan has eroded

Her short judicial record, together with her scholarly writings, reveal that she is a rock-solid conservative jurist. Like Scalia, she defines herself as an originalist and textualist, which means that the constitution must be viewed as of the time it was written. From that perspective, there is nothing in the constitution that would explicitly support abortion rights, gay marriage, mandatory school desegregation, or the right to suppress evidence that is illegally seized. By contrast, in one of her most famous opinions, United States v Virginia (1996), Ginsburg wrote that “a prime part of the history of our constitution … is the story of the extension of constitutional rights and protections to people once ignored or excluded.”

In a 2013 article, Barrett repeatedly expressed the view that the supreme court had created, through judicial fiat, a framework of abortion on demand that ignited a national controversy. In an opinion she joined with another judge, she expressed doubt that a law preventing parents from terminating a pregnancy because they did not want a child of a particular sex or one with a disability could be unconstitutional. These writings surely indicate that Barrett will do whatever she can to limit or eliminate abortion rights.

Barrett has also expressed dissatisfaction with the Affordable Care Act and support for a broad interpretation of the second amendment. She has writtenthat Chief Justice John Roberts “pushed the Affordable Care Act beyond its plausible meaning”. She also quoted Scalia, when he wrote that “the statute known as Obamacare should be renamed ‘Scotuscare’” in “honor of the court’s willingness to ‘rewrite’ the statute in order to keep it afloat”. There is little doubt that Barrett would be inclined to find the Affordable Care Act unconstitutional and thereby deprive millions of Americans of affordable healthcare coverage. Similarly, she wrote a dissenting opinion questioning the constitutionality of a statute that prohibited ex-felons from purchasing guns. Thus, she has demonstrated her fealty to the NRA position that the more guns the better – inevitably leading to more Americans dying from gun violence.

When addressing the legal doctrine known as stare decisis, meaning respect for precedent, Barrett wrote that she “tend[ed] to agree with those who say that a justice’s duty is to the constitution and that it is thus more legitimate for her to enforce her best understanding of the constitution rather than a precedent she thinks is clearly in conflict with it”. In other words, she would overturn landmark decisions such as Brown v Board of Education or Roe v Wade if those decisions did not reflect her best understanding of the constitution.

Amy Coney Barrett: what will she mean for women’s rights?

Read more

Stunningly, in an interview in 2016, when asked whether Congress should confirm Obama’s nominee during an election year, Barrett responded that confirmation should wait until after the election because an immediate replacement would “dramatically flip the balance of power”. Given that answer, she should decline the nomination, as her confirmation would even more dramatically flip the balance of the court, entrenching a 6-3 conservative majority.

Confirming this nominee before the outcome of the national elections – which will determine both the identity of the next president and the composition of a new Senate – is unprecedented, inexcusable and a threat to many rights that the majority of Americans have embraced. This is a tragedy about to happen.

Shira A Scheindlin served as a United States district judge for the southern district of New York for 22 years. She is the co-chair of the board of the Lawyers Committee for Civil Rights Under Law and a board member of the American Constitution Society

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

Read the rest of Judge Scheindlin’s article at the link.

As I have been saying “Better Judges For A Better America!” It starts with electing a President who will nominate them and a Senate that will confirm them. That requires “regime change” and defeat of the GOP Anti-Democracy Party at all levels.

Dems need to stop sputtering about Barrett, whom they don’t appear able to stop anyway, and get out the vote to insure that she will be the last GOP far right shill on Supremes for many years! Rebuilding and improving American democracy starts NOW, with THIS ELECTION. As Willie Nelson says: “Vote ‘Em Out, Vote ‘Em Out!”

BTW, “Moscow Mitch” and his GOP toadies have plenty of time to race through the Barrett confirmation during an election, but no time to help Americans thrown out of work or losing their health insurance because of the pandemic!🤮⚰️

PWS

10-01-20

⚰️☠️🏴‍☠️KILLERS ON THE LOOSE, ON YOUR PAYROLL! — Whistleblower Report Shows How Corrupt Regime “War Criminals” Have Intentionally Falsified Information To Cover Up Deadly Conditions In Northern Triangle, Thereby Potentially Condemning Refugees To Death Without Due Process — Too Many Article III Judges Have Disingenuously Used “Standards Of Review” & Other Dishonest “Legal Gimmicks” To Hide Their Own Failures To Critically Examine Bogus Asylum Denials & Overtly Racist Restrictionist Policies Flowing From The Twisted Mind Of Neo-Nazi Stephen Miller!

Trump Dumping Asylum Seekers in Hondiras — Dumping Asylum Seekers in Honduras
Artist: Monte Wolverton
Reproduced under license

https://www.justsecurity.org/72451/whistleblower-dhs-suppressed-reports-on-central-america-and-inflated-risk-of-terrorist-border-crossers/

Susan Gzesh in Just Security:

. . . .

U.S. law and the United Nations Convention and Protocol Relating to the Status of Refugees also require the United States to accept political asylum claims presented at the U.S. border and to not return applicants to a place where their “life or freedom would be threatened.” These conditions were, of course, not met with respect to El Salvador, Guatemala, and Honduras. The Trump administration later ceased referring to the agreements with these Central American countries as “Safe Third Country” agreements and used the term “Asylum Cooperation Agreements,” perhaps in a cynical attempt to avoid U.S. law and regulations.

What Murphy’s Complaint Reveals

According to his whistleblower complaint (footnote 1 at pages 9-10) and earlier anonymous reports he filed with the DHS Office of Inspector General, career DHS intelligence official Brian Murphy presented intelligence reports to political appointees in DHS which found “high levels of corruption, violence, and poor economic conditions” in all three countries. It was no surprise that Murphy’s complaint recounts that in December 2019, as the Trump administration was sending the first asylum seekers to Central America, then Acting Assistant Secretary of DHS Ken Cuccinelli ordered Murphy to change those reports.

According to Murphy, Cuccinelli not only claimed the reports must be false, but also attributed them to forces within the intelligence community hostile to the President. He accused “unknown ‘deep state intelligence analysts’ of compiling intelligence information to undermine President Donald J. Trump’s policy objectives with respect to asylum.” According to Murphy, Cuccinelli further ordered him to identify those “who compiled the intelligence reports and to either fire or reassign them immediately” (see page 9 of Murphy’s complaint).

With respect to the policy rationale to support spending millions of dollars on a border wall, Murphy’s complaint recounts how he was asked to reinterpret and rewrite intelligence reports about Known or Suspected Terrorists (KSTs) attempting to enter the United States from Mexico to fit the White House’s policy arguments about the need for a wall. In several meetings during 2018 and 2019, Murphy delivered intelligence to then DHS-Secretary Kirstjen Nielsen and other officials that the actual number of individually-documented KSTs was very tiny. Despite Murphy’s briefings, Nielsen and other officials in DHS issued documents and gave congressional briefings in which they greatly exaggerated the numbers, inflating a figure of 3 KSTs to over 3,000. (Murphy’s attorney has provided an amended complaint to correct an error in the original version of these events.) At one meeting in December 2019, after Murphy contradicted his superiors regarding the number of KSTs crossing into the United States, he was removed from the meeting by now interim DHS Secretary Chad Wolf (as noted in his amended complaint at pages 5-8).

Brian Murphy’s Whistleblower complaint confirms what the public has seen so often: White House officials and political appointees in federal agencies willing to hide carefully investigated and proven facts in order to substitute lies more in keeping with White House policy goals.

DHS Secretary-designate Chad Wolf is supposed to testify before a House panel later this week. Let’s hope he gives truthful answers to all the questions raised in Brian Murphy’s complaint.

. . . .

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

Read the rest of Susan’s article at the link.

Hey, 3 known “suspected” terrorists vs 3,000! What’s the big deal? They both contain the number “3.”

This is the type of demonstrable nonsense that the Supremes’ majority disingenuously accepts in letting the regime declare bogus “immigration emergencies” and stomp all over the legal and constitutional rights of asylum seekers! Real people die, get tortured, and have their lives destroyed because elitist judges have removed themselves from humanity and kowtow to a scofflaw, corrupt, immoral Executive. This is what a failing democracy and a complicit judiciary look like.

I appreciate Susan’s optimistic hope in the last paragraph. But, the chance “Wolfman,” an “illegal,” will tell Congress the truth under oath is zero.

All three branches of our failing Government have conspired to insure that his lies and illegal actions will have no meaningful consequences for him or any of his co-conspirators. Only the health, safety, and lives of his, Trump’s, Miller’s, Barr’s, Session’s, and “Cooch’s” victims are on the line.

In the meantime, refugees entitled to protection under U.S. and international law continue to be returned to dangerous and deadly conditions in the Northern Triangle without due process or indeed any process whatsoever. Indeed, with the help of disingenuous Federal Courts, the regime has effectively repealed U.S. protection laws without enacting a single piece of legislation!

One of many unfortunate “practical consequences” of the Article IIIs overall lack of critical review: In addition to having to fight the unethical and often frivolous litigation “strategies and gimmicks” of the regime and the DOJ, advocates, often serving pro bono or low bono, now bear the burden of preparing their own “Country Reports” to rebut the falsified, misleading, and highly politicized versions of country conditions presented in DOS “Country Reports.”

The latter used to be considered the “international gold standard” for determining country conditions in asylum and refugee adjudications (although true expert judges and adjudicators still viewed them critically). Now, they are little more than “political propaganda screeds” for a corrupt, White Nationalist, bigoted regime.

But, most Article IIIs have been intentionally or negligently “asleep at the switch,” still disingenuously “deferring” to these deeply defective and intentionally misleading, sometimes fictionalized, accounts. For example, almost any legitimate asylum expert would say that Jeff “Gonzo Apocalypto” Sessions’s largely fictionalized account of conditions for women in El Salvador, presented in Matter of A-B-, 27 I&N Dec. 316 (AG 2018), bears little resemble to reality.

Of course, the political branches have authority to set policy — but only within Constitutional and legal limits. Clearly, that authority to direct the activities of civil servants does not include authority to ignore facts and create false narratives in support of overtly racist, religiously bigoted, or improperly politically punitive agendas. Any Federal Judge who looks the other way when such overtly invidious objectives and motives are at work is derelict in his or her duty.

Our democracy is in deep trouble. And, to get it fully functioning and finally achieve the promise of equal justice under law, we eventually will need a better qualified Article III Judiciary.

The sooner that process starts, the better. It will take years or even generations to reform the life-tenured judiciary and get better qualified women and men on the bench. Judges who actually reflect the diversity of America and are unswervingly committed to equal justice for all under our laws.

We need Federal Judges, at all levels from the Supremes to the Immigration Courts, who actually know and understand asylum and human rights laws and their human dimension. Judges who have the courage and integrity to stand up for the rights of all persons for due process, fundamental fairness, and to be treated with human dignity, free of the overt racist bias demonstrated by Trump, Miller, and others.

In the end, the rights of foreign nationals to be treated as “persons” under our law are all of our rights! The dehumanization and “Dred Scottification” of asylum seekers by the regime and the Federal Courts diminishes each of us, including those complicit “go along to get along” judges who fail to see their own humanity in the faces and lives of those they oppress and fail to protect.

For now, they are largely getting away with it. But, eventually, somewhere down the line, there will be a “judgement of history” for their inhumanity and dereliction of duty. Of that, I am certain!

Due Process Forever!

PWS

09-17-20

THE SADNESS OF PROPHECY WITHOUT POWER: Two Years Ago, I Gave A Speech Warning Of The Consequences Of “1939 Germany” — Now, We’re In “Germany 1938” With 1939 Just An Election Away! — Moscow Mitch, Lindsey The Toad, Texas Ted & The Rest Of The GOP Fellow Travelers & Cultists Would Be Right At Home With Franz van Papen!

This morning, Joe Hagan wrote in The Hive For Vanity Fair:

On the latest episode of Inside the Hive, former Republican strategist Stuart Stevens described the GOP under Donald Trump as a party of cynics, stooges, racists, and obsequious enablers whose profiles in cowardice bear an uncomfortable resemblance to 1930s Germany. “When I talk to Republican politicians, I hear Franz von Papen,” he says, referencing the German chancellor who convinced Germans that so-called radical leftists were a far greater threat than Adolf Hitler. “They all know that Trump is an idiot. They all know that he’s uniquely unqualified to be president. But they convinced themselves that he was a necessity.”

https://www.vanityfair.com/news/2020/09/ex-republican-strategist-surveys-the-wreckage-of-trumps-gop

All too disturbingly true. For those who didn‘t notice, the GOP now has no platform. None! They are nakedly running on lies, racism, fear, White Supremacy, hate, misogyny, xenophobia, intentionally false narratives, anti-science, anti-intellectualism, and corruption. Sound familiar? It should to those of us who studied Modern European History and World War II.

Two years ago, before the International Association of Refugee & Migration Judges meeting at Georgetown Law, fresh from a visit to the Holocaust Museum in DC, I gave a speech warning of a return to “Eve of the Holocaust thinking.”

It was, of course, “extreme hubris and total self-delusion” to think anyone was paying attention. Nevertheless, it doesn’t lessen my “extreme sadness” of watching the disintegration of our nation, without being able to prevent it.

Here’s a “reprint” of that speech from the Summer of 2018:

JUST SAY NO TO 1939: HOW JUDGES CAN SAVE LIVES, UPHOLD THE CONVENTION, AND MAINTAIN INTEGRITY IN THE AGE OF OVERT GOVERNMENTAL BIAS TOWARD REFUGEES AND ASYLUM SEEKERS

IMPLICIT BIAS IARMJ 08-03-18

JUST SAY NO TO 1939: HOW JUDGES CAN SAVE LIVES, UPHOLD THE CONVENTION, AND MAINTAIN INTEGRITY IN THE AGE OF OVERT GOVERNMENTAL BIAS TOWARD REFUGEES AND ASYLUM SEEKERS

By Paul Wickham Schmidt,

U.S. Immigration Judge, Retired

Americas Conference

International Association of Refugee & Migration Judges

Georgetown Law

August 4, 2018

INTRODUCTION

Good afternoon. I am pleased to be here. Some twenty years ago, along with then Chief U.S. Immigration Judge Michael J. Creppy, I helped found this Association, in Warsaw. I believe that I’m the only “survivor” of that illustrious group of “Original Charter Signers” present today. And, whoever now has possession of that sacred Charter can attest that my signature today remains exactly as it was then, boldly scrawling over those of my colleagues and the last paragraph of the document.

As the Americas’ Chapter Vice President, welcome and thank you for coming, supporting, and contributing to our organization and this great conference. I also welcome you to the beautiful campus of Georgetown Law where I am on the adjunct faculty.

I thank Dean Treanor; my long-time friend and colleague Professor Andy Schoenholtz, and all the other wonderful members of our Georgetown family; the IARMJ; Associate Director Jennifer Higgins, Dimple Dhabalia, and the rest of their team at USCIS; and, of course, our Americas President Justice Russell Zinn and the amazing Ross Patee from the Canadian Immigration and Refugee Board who have been so supportive and worked so hard to make this conference a success.

I recognize that this is the coveted “immediately after lunch slot” when folks might rather be taking a nap. But, as the American country singer Toby Keith would say “It’s me, baby, with you wake up call!” In other words, I’m going to give you a glimpse into the “parallel universe” being operted in the United States.

In the past, at this point I would give my comprehensive disclaimer. Now that I’m retired, I can skip that part. But, I do want to “hold harmless” both the Association and Georgetown for my remarks. The views I express this afternoon are mine, and mine alone. I’m going to tell you exactly what I think. No “party line,” no “bureaucratic doublespeak,” so “sugar coating.” Just the truth, the whole truth, and nothing but the truth!

I have good news and bad news. The good news is that we don’t have an implicit bias problem in the U.S. asylum adjudication system. The bad news: The bias is now, unfortunately, quite explicit.

Here’s a quote about refugees: “I guarantee you they are bad. They are not going to be wonderful people who go on to work for the local milk people.”

Here’s another one: “We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order.”

Here’s another referencing the presence of an estimated 11 million undocumented residents of the U.S.: “Over the last 30 years, there have been many reasons for this failure. I’d like to talk about just one—the fraud and abuse in our asylum system.”

Here’s yet another: “We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence, therefore they are entitled to enter the United States. Well, that’s obviously false but some judges have gone along with that.”

You might think that these anti-asylum, and in many cases anti-Latino, anti-female, anti-child, anti-asylum seeker, de-humanizing statements were made by members of some fringe, xenophobic group. But no, the first two are from our President; the second two are from our Attorney General.

These are the very officials who should be insuring that the life-saving humanitarian protection purposes of the Refugee Act of 1980 and the Convention Against Torture are fully carried out and that our country fully complies with the letter and spirit of the 1951 Convention Relating to the Status of Refugees which is binding on our country under the 1967 Protocol.

Let me read you a quote that I published yesterday on my blog, immigrationcourtside.com, from a young civil servant resigning their position with “EOIR,” otherwise known as our Immigration Court system, or, alternatively, as the sad little donkey from Winnie the Pooh.

I was born and raised in a country that bears an indelible and shameful scar—the birth and spreading of fascism. An ideology that, through its different permutations, almost brought the world as we know it to an end. Sadly, history has taught me that good countries do bad things—sometimes indescribably atrocious things. So, I have very little tolerance for authoritarianism, extremism, and unilateral and undemocratic usurpations of Constitutional rights. I believe that DOJ-EOIR’s plan to implement individual annual numerical performance measures—i.e., quotas—on Immigration Judges violates the Due Process clause of the Fifth Amendment of the United States Constitution, and the DOJ’s own mission to “ensure the fair and impartial administration of justice.” This is not the job I signed up for. I strongly believe in the positive value of government, and that the legitimacy of our agency—and any other governmental institution for that matter—is given by “the People’s” belief in its integrity, fairness, and commitment to serve “the People.” But when the government, with its unparalleled might and coercive force, infringes on constitutionally enshrined rights, I only have two choices: (1) to become complicitous in what I believe is a flagrant constitutional violation, or (2) to resign and to hold the government accountable as a private citizen. I choose to resign because I cannot in good conscience continue serving my country within EOIR.

Strong words, my friends. But, words that are absolutely indicative of the travesty of justice unfolding daily in the U.S. Immigration Courts, particularly with respect to women, children, and other asylum seekers –- the most vulnerable among us. Indeed, the conspicuous absence from this conference of anyone currently serving as a judge in the U.S. Immigration Courts tells you all you really need to know about what’s happening in today’s U.S. justice system.

Today, as we meet to thoughtfully discuss how to save refugees, the reality is that U.S. Government officials are working feverishly at the White House and the U.S. Department of Justice on plans to end the U.S. refugee and asylum programs as we know them and to reduce U.S. legal immigration to about “zero.”

Sadly, the U.S. is not alone in these high-level attacks on the very foundations of our Convention and international protection. National leaders in Europe and other so-called “liberal democracies” — who appear to have erased the forces and circumstances that led to World War II and its aftermath from their collective memory banks — have made similar statements deriding the influence of immigrants and the arrival of desperate asylum seekers. In short, here and elsewhere our Convention and our entire international protection system are under attacks unprecedented during my career of more than four decades in the area of immigration and refugee protection.

As a result, judges and adjudicators throughout the world, like you, are under extreme pressure to narrow interpretations, expedite hearings, view asylum seekers in a negative manner, and produce more denials of protection.

So, how do we as adjudicators remain loyal to the principles of our Convention and retain our own integrity under such pressures? And, more to the point, what can I, as someone no longer involved in the day-to-day fray, contribute to you and this conference?

Of course, you could always do what I did — retire and fulfill a longtime dream of becoming an internet “gonzo journalist.” But, I recognize that not everyone is in a position to do that.

Moreover, if all the “good guys” who believe in our Convention, human rights, human dignity, and fair process leave the scene, who will be left to vindicate the rights of refugees and asylum seekers to protection? Certainly not the political folks who are nominally in charge of the protection system in the US and elsewhere.

So, this afternoon, I’m returning to that which brought this Association together two decades ago in Warsaw: our united commitment to the letter and spirit of the 1951 Convention; additionally, our commitment to fairness, education, international approaches, group problem solving, promoting best practices, and mutual support.

In the balance of my presentation, I’m going to tell you four things, taken from our Convention, that I hope will help you survive, prosper, and advance the aims of our Convention in an age of nationalist, anti-refugee, anti-asylum, anti-immigrant rhetoric.

BODY

Protect, Don’t Reject

First, “protect, don’t reject.” Our noble Convention was inspired by the horrors of World War II and its aftermath. Many of you will have a chance to see this first hand at the Holocaust Museum.

Our Convention is a solemn commitment not to repeat disgraceful incidents such as the vessel St. Louis, which has also been memorialized in that Museum. For those of you who don’t know, in 1939 just prior to the outbreak of World War II a ship of German Jewish refugees unsuccessfully sought refuge in Cuba, the United States, and Canada, only to be rejected for some of the same spurious and racist reasons we now hear on a regular basis used to describe, deride, and de-humanize refugees. As a result, they were forced to return to Europe on the eve of World War II, where hundreds who should and could have been saved instead perished in the Holocaust that followed.

Since the beginning of our Convention, the UNHCR has urged signatory countries to implement and carry out “a generous asylum policy!” Beyond that, paragraphs 26 and 27 of the UN Handbookreiterate “Recommendation E” of the Convention delegates. This is the hope that Convention refugee protections will be extended to those in flight who might not fully satisfy all of the technical requirements of the “refugee” definition.

Therefore, I call on each of you to be constantly looking for legitimate ways in which to extend, rather than restrict, the life-saving protections offered by our Convention.

Give The “Benefit Of The Doubt”

Second, “give the benefit of the doubt.” Throughout our Convention, there is a consistent theme of recognizing the difficult, often desperate, situation of refugees and asylum seekers and attendant difficulties in proof, recollection, and presentation of claims. Therefore, our Convention exhorts us in at least four separate paragraphs, to give the applicant “the benefit of the doubt” in assessing and adjudicating claims.

As a sitting judge, I found that this, along with the intentionally generous “well-founded fear” standard, enunciated in the “refugee” definition and reinforced in 1987 by the U.S. Supreme Court and early decisions of our Board of Immigration Appeals implementing the Supreme Court’s directive, often tipped the balance in favor of asylum seekers in “close cases.”

Don’t Blame The Victims

Third, “don’t blame the victims.” The purpose of our Convention is to protect victims of persecution, not to blame them for all societal ills, real and fabricated, that face a receiving signatory country. Too much of today’s heated rhetoric characterizes legitimate asylum seekers and their families as threats to the security, welfare, heath, and stability of some of the richest and most powerful countries in the world, based on scant to non-existent evidence and xenophobic myths.

In my experience, nobody really wants to be a refugee. Almost everyone would prefer living a peaceful, productive stable life in their country of nationality. But, for reasons beyond the refugee’s control, that is not always possible.

Yes, there are some instances of asylum fraud. But, my experience has been that our DHS does an excellent job of ferreting out, prosecuting, and taking down the major fraud operations. And, they seldom, if ever, involve the types of claims we’re now seeing at our Southern Border.

I’m also aware that receiving significant numbers of refugee claimants over a relatively short period of time can place burdens on receiving countries. But, the answer certainly is not to blame the desperate individuals fleeing for their lives and their often pro bono advocates!

The answer set forth in our Convention is for signatory countries to work together and with the UNHCR to address the issues that are causing refugee flows and to cooperate in distributing refugee populations and in achieving generous uniform interpretations of the Convention to discourage “forum shopping.” Clearly, cranking up denials, using inhumane and unnecessary detention, stirring up xenophobic fervor, and limiting or blocking proper access to the refugee and asylum adjudication system are neither appropriate nor effective solutions under our Convention.

Give Detailed, Well-Reasoned, Individualized Decisions

Fourth, and finally, “give detailed, well-reasoned, individualized decisions.” These are the types of decisions encouraged by our Convention and to promote which our Association was formed. Avoid stereotypes and generalities based on national origin; avoid personal judgments on the decision to flee or seek asylum; avoid political statements; be able to explain your decision in legally sufficient, yet plainly understandable terms to the applicant, and where necessary, to the national government.

Most of all, treat refugee and asylum applicants with impartiality and the uniform respect, sensitivity, and fairness to which each is entitled, regardless of whether or not their claim under our Convention succeeds.

CONCLUSION

In conclusion, I fully recognize that times are tough in the “refugee world.” Indeed, as I tell my Georgetown students, each morning when I wake up, I’m thankful for two things: first, that I woke up, never a given at my age; second, that I’m not a refugee.

But, I submit that tough times are exactly when great, independent, and courageous judging and adjudication are necessary to protect both applicants from harm and governments from doing unwise and sometimes illegal and immoral things that they will later regret.

I have offered you four fairly straightforward ways in which adhering to the spirit of our Convention can help you, as judges and adjudicators, retain integrity while complying with the law: protect, don’t reject; give the benefit of the doubt; don’t blame the victims; and give detailed, well-reasoned, individualized decisions.

Hopefully, these suggestions will also insure that all of you will still be around and employed for our next conference.

Thanks for listening, have a great rest of our conference, and do great things! May Due Process and the spirit of our noble Convention and our great organization guide you every day in your work and in your personal life! Due Process forever!

(08-06-18)

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

In addition to the Moscow Mitches, Grahams, and other corrupt GOP pols who have sold out our nation, the disgraceful performance of Chief Justice John Roberts and his GOP colleagues in the face of the regime’s overtly racist, White Nationalist, deadly abuses of asylum seekers in violation of the Due Process and Equal Protection clauses of the Constitution, the Refugee Act of 1980 (b/t/w, ignored and abrogated, but never repealed), the Geneva Refugee Convention and 1967 Protocol, and the Convention Against Torture will fit well within the “Judicial Aid and Complicity Section” of the future “Museum Honoring Victims of Crimes Against Humanity Committed By The Trump Regime.”

The Constitution is remarkably clear: All “persons” within the jurisdiction of the U.S. are entitled to due process and equal protection under our laws. Unquestionably, refugees seeking legal protection within our court system, some actually being detained, deported, or forced to relocate by our Government, are within our jurisdiction. An L1 law student knows that! It’s not rocket science!

So, the only way that the Supremes’ majority could abrogate legally required protections is through intentionally disingenuous “legal mumbo jumbo and gobbledygook” and ridiculous “legal fictions” that, at heart, convert refugees and migrants of color into “non-persons” under the law. Similar to their approach to the voting rights of African Americans and Latinos.

That’s how you abandon your duties to your fellow human beings and tank on your Constitutional oaths. Sounds pretty overtly racist to me. And, I must say, it sounds pretty racist to most lawyers who understand immigration and human rights laws.

Too bad and too late for those deserving justice and protection, men, women, children, members of the LGBTQ community, religious and political activists, most highly vulnerable and semi-defenseless in the face of lawless tyranny, whose lives have been sacrificed or ruined forever by lousy, ideological, tone-deaf, anti-human-dignity judging.

It’s too late for them. But, it’s not too late for America to turn away from 1939 and advance to a better 2021 with a commitment to making “equal justice for all” under the law a reality rather than a cruel, unfulfilled, bogus promise! That would at least honor the memory of the dead, tortured, raped, broken, mutilated, and ruined who have been unnecessarily sacrificed by the GOP and their complicit judges who failed in their duties to our Constitution and to humanity.

We can’t change yesterday. But, we can stop repeating its mistakes!

PWS

09-11-20

“POPPYCOCK!” — Conservative U.S. District Judge Richard Leon “Zeroes In” On Racist, Disingenuous, BS Presented In Court By Trump Regime To Justify “Crimes Against Humanity” Committed Against Asylum Seekers By USG! — Contrasts With Disingenuous Enabling Of Racist Immigration Agenda By Supremes’ Majority! — As Reported By “Legal Clairvoyant” 🔮 Jacqueline Thomsen @ NLJ!

“POPPYCOCK!” — U.S. District Judge Richard Leon’s Characterization Of Trump Regime’s Defense Of Asylum Seeker Abuse By DHS & Barr’s Unethical & Frivolous Arguments!

Jacqueline Thomsen
Courts Reporter
National Law Journal & Legal Clairvoyant

https://link.law.com/click/21370303.6876//5162eb9334b9b0a8048a6907C27093cdb

Due Process “Legal Eagle” Jacqueline Thompsen reports for the National Law Journal’:

. . . .

The federal immigration law requires that officers who conduct the interviews—in which migrants must show they face at least a 10% chance of persecution due to certain factors in order to be eligible for asylum—receive significant training on handling the applications

In responding to the administration’s claims that the border patrol agents received similar training as asylum officers, Leon wrote, “Poppycock! The training requirements cited in the government’s declaration do not come close to being ‘comparable’ to the training requirements of full asylum officers.”

“To make matters worse, the January MOA precludes any individual CBP agent from conducting credible fear interviews for longer than 180 days, meaning that CBP agents cannot gain the experience necessary to appropriately apply the complex asylum laws and regulations,” the judge added. “These procedures plainly violate Congress’s requirements.”

The Trump administration has administered a widespread crackdown on asylum proceedings, adopting a slew of policies that make it more difficult for migrants fleeing persecution in other countries to obtain protections in the United States.

The ruling comes in a lawsuit filed by attorneys with Tahirih Justice Center and the Constitutional Accountability Center, on behalf of four mothers and their seven children from Honduras, Ecuador and Mexico seeking asylum in the U.S. All of the migrants failed to pass the credible fear assessment conducted by CBP agents, which were upheld by immigration judges.

Leon also found in Monday’s ruling that it “would certainly seem unlikely” that CBP agent interviews of migrants could be considered to be “nonadversarial proceedings with a neutral decision-maker,” as required under federal regulations and guidelines. He noted that border patrol agents are considered law enforcement, and said federal authorities’ statements on measures they have taken to minimize the possibility of the interviews becoming adversarial “hardly seems sufficient.”

Leon wrote the training requirements for those conducting the credible fear assessments “are essential for a functioning asylum process, which is why Congress required them,” describing the legal framework surrounding U.S. immigration, asylum, and other similar processes as “complex, to say the least.”

“After all, an asylum officer who is not adequately trained in the applicable legal requirements is less likely to ask the right questions of an asylum seeker, or for that matter, to gather the facts necessary to make an accurate determination of whether an asylum seeker has a credible fear of persecution,” he continued. “Indeed, the record here contains several examples of the effects of inadequate training: one CBP agent failed to follow up with questions about an asylum-seeking plaintiff’s sexual abuse, and another failed to inquire into another asylum-seeking plaintiffs husband’s murder investigation.”

Leon also found the immigrants in the case would face irreparable harm, if he did not issue a preliminary injunction to block their removal from the U.S.

***********

Why isn’t it an ethical and professional problem for “Billy the Bigot’s” DOJ to make nonsense arguments to a Federal Judge in support of unlawful actions? Private members of the bar arguing “poppycock” in a civil case could well find themselves referred for disciplinary action. Why are Cabinet Officials and their attorneys exempt from normal professional and ethical considerations?

You can read Judge Leon’s clearly written and cogently reasoned 22-page decision in A.B.-B. v. Morgan here: https://www.courtlistener.com/recap/gov.uscourts.dcd.216698/gov.uscourts.dcd.216698.32.0.pdf.

If only more judges at all levels could write with such clarity and in plain English!

The rejection at the “credible fear” stage of the bona fide asylum claims described by Judge Leon is beyond appalling! These are essentially totally and intentionally unqualified and biased U.S. Government employees committing “crimes against humanity” and getting away with it! These aren’t “legal errors.” It’s systemic malfeasance, otherwise known as “malicious incompetence” with a heavy dose of racism and misogyny thrown in for a good measure!

If substantiated during the immigration hearing process that should have taken place, all these applicants should have been “slam dunk” grants of asylum, withholding of removal, and/or relief under the Convention Against Torture in a properly functioning justice system. Instead, but for the efforts of pro bono counsel, they would have been illegally returned to harm, torture, and/or death with no legitimate process at all!

No wonder “Billy the Bigot’s” Immigration Courts are out of control and the borders are a deadly mess when individuals who with proper screening and access to competent counsel should have been quickly legally admitted to the U.S. under protection laws are instead being “rejected” by biased and unqualified Border Patrol Agents impersonating Asylum Officers!

Here’s my favorite quote (among many) from Judge Leon’s decision:

Of course, the Government has a strong interest in the “prompt execution of removal orders.” Nken,556 U.S. at 436. However, the Government and public can have little interest in executing removal orders that are based on statutory violations, League of Women Voters of U.S. v. I,{ewby,838 F.3d l,12 (D.C. Cir. 2016) (“There is generally no public interest in the perpetuation of unlawful agency action.”), especially where those statutory violations may compromise the accuracy of such removal orders. R.I.L.-R. v Johnson, 80 F. Supp. 3d 164, 191 (D.D.C. 2015); Grace, 344 F. Supp. 3d at 14144 Indeed, the public has an interest “in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm.” Nken,556 U.S. at 436. As such, the balance of interests here weighs in favor of preliminary injunctive relief.

The last point, “the public has an interest ‘in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm,’” Nken,556 U.S. at 436, has basically been ignored by the Supremes’ majority recently in sending refugees to their death or into harm’s way without any semblance of due process, based on various lies, distortions, and racist schemes by the Trump regime intentionally mischaracterizing “national security” and “national emergency.” As Judge Leon would say: “Poppycock!”

Perversely, the Trump regime and the Supremes’ have made execution of illegal removal orders, resulting from racist White Nationalist schemes, a “national priority.” Truly, this is a system broken from the top down in need of immediate repair and injections of intellectually honesty, moral courage, and ethics — something that seems “out of vogue” in all three branches of our failing democracy these days

I recently had a conversation with Jacqueline in which she basically predicted this decision based on her study of the arguments and trends among U.S. District Judges, regardless of philosophy or appointing party, in DC. Nice going Jacqueline! Congrats on your clairvoyance!

Those with NLJ access (anyone can get “three free” per month by registering) can read the complete article at the link.

Judge Leon’s linear, straightforward, and “no BS” treatment of the regime’s absurdist, unethical, and scofflaw legal “defense” of essentially “crimes against humanity” contrasts sharply with the disingenuous and essentially “brain dead” treatment of similar BS by the “JR Five” on the Supremes. There, the patently unconstitutional and illegal (not to mention immoral) agenda of neo-Nazi racist Stephen Miller and the unethical maneuvers of SG Noel Francisco are often wrongfully rewarded. By contrast, the the Supremes’ majority routinely trashes the legal and constitutional rights of vulnerable people of color, particularly asylum seekers, migrants, and voters beneath an avalanche of bogus “Dred Scottification” jurisprudence.

Additionally, Judge Leon is “onto something” that has been swept under the carpet by the Supremes and the Circuit Courts when he questions “whether CBP agents could ever lawfully be given authority to conduct asylum interviews and adjudicate asylum claims, see Compl. ‘]Tfl 108-09, it would certainly seem unlikely under these circumstances. After all, law enforcement officers typically “function as adversaries” whose role is “to investigate criminal activity, to locate and arrest those who violate our laws, and to facilitate the charging and bringing of such persons to trial.” New Jersey v T.L.O.,469 U.S. 325,349 (1985) (Powell, J., concurring).”

Similarly, many of us have argued that Immigration “Judges” who work for uber-enforcer and Trump shill “Billy the Bigot” and have been “repurposed” and “weaponized” into DHS enforcement support staff can not possibly be the “fair and impartial” quasi-judicial adjudicators required by the Due Process Clause of the Fifth Amendment!

Better Justices and better Federal Judges for a better America, particularly for people of color and other minorities. It’s actually quite simple and straightforward. It starts with throwing Trump and the GOP out of every political office this Fall.

Then, we need some real Justices and Federal Judges who will stand against systemic racism and enforce equal justice in America! Not, rocket science! Just knowledge of the Constitution, awareness of human rights and immigrants’ rights, a focus on racial justice, courage to speak truth to power, and a demonstrated commitment to human dignity and human decency. One could easily wonder why those haven’t been the minimal requirements for Federal judicial service in the past.

Past is past, particularly for life-tenured judges. But, America can’t afford any more disastrous judicial appointments, at any level, who lack the guts and human decency to stand up to scofflaw, neo-fascist racists like Trump, Miller, and their cronies.

The top to bottom overall failure of the American judiciary to put an end to unconstitutional and unfair racism and “Dred Scottification” of “the other” in our society is aiding and abetting the dark, lawless forces aligned with the regime destabilizing our country and ripping it apart! No more!

Due Process Forever!

PWS

08-31-20

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By Paul Wickham Schmidt,

U.S. Immigration Judge, Retired

Americas Conference

International Association of Refugee & Migration Judges

Georgetown Law

August 4, 2018

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