PRO PUBLICA: HOW OUR GOVERNMENT HAS CYNICALLY TURNED WHAT SHOULD BE A GENEROUSLY ADMINISTERED, LIFE-SAVING, PROTECTION-GRANTING ASYLUM SYSTEM INTO A “GAME OF CHANCE” WITH POTENTIALLY FATAL CONSEQUENCES FOR THE HAPLESS & VULNERABLE “PLAYERS!” –Play The “Interactive Version” Of “The Game” Here – See If You Would Survive or Perish Playing “Refugee Roulette!”

https://projects.propublica.org/asylum/#how-asylum-works

Years-long wait lists, bewildering legal arguments, an extended stay in detention — you can experience it all in the Waiting Game, a newsgame that simulates the experience of trying to seek asylum in the United States. The game was created by ProPublica, Playmatics and WNYC. Based on the true stories of real asylum-seekers, this interactive portal allows users to follow in the footsteps of five people fleeing persecution and trying to take refuge in America.

The process can be exhausting and feel arbitrary – and as you’ll find in the game, it involves a lot of waiting. Once asylum-seekers reach America, they must condense complex and often traumatic stories into short, digestible narratives they will tell again and again. Their lives often depend on their ability to convince a judge that they are in danger. Judicial decisions are so inconsistent across the country, success in complicated cases can come down to geography and luck — in New York City only 17 percent of asylum cases are denied in immigration court; in Atlanta, 94 percent are. Increasingly, many asylum-seekers are held in detention for months or even years while going through the system. The immigration detention system costs more than $2 billion per year to maintain.

The Trump administration has tried to reframe the asylum system as a national security threat and a magnet for illegal immigration. Attorney General Jeff Sessions characterizes the American asylum process as “subject to rampant abuse” and “overloaded with fake claims.” He has aimed recent reforms at expediting asylum adjudications to speed up deportations and at making it more difficult for certain groups to qualify for protection, such as Central Americans who claim to fear gender-based violence or gang persecution.

The narrative that the system is overrun with fraud has long been pushed by groups that favor limiting immigration overall. They point to some 37 percent of asylum-seekers who annually miss their immigration hearings as evidence that people without legitimate fears of persecution game the system. They argue that allowing asylum-seekers to obtain work permits while they wait for a decision on their cases — which sometimes takes years — incentivizes baseless claims.

But another picture emerged when ProPublica spoke with more than 20 experts and stakeholders who study and work in the asylum system, including lawyers, immigration judges, historians, policy experts, an asylum officer, a former border patrol agent and a former ICE prosecutor.

When asked about changes to the system they’d like to see, many suggested providing asylum-seekers with better access to lawyers to support due process, expanding the definition of a refugee to cover modern-day conflicts,providing more resources to help the system process claims in a timely manner, and improving judicial independence by moving immigration courts out of the Department of Justice.

Most acknowledged some level of asylum-claim abuse exists. “In any system, of course, there are going to be some bad actors and some weaknesses people seek to exploit,” said Doris Meissner, the former commissioner of the U.S. Immigration and Naturalization Service from 1993 to 2000.

But they also argued for the importance of protecting and improving a national program that has provided refuge to hundreds of thousands of people. “If you are going to make a mistake in the immigration area, make this mistake,” said Bill Hing, director of the University of San Francisco’s Immigration and Deportation Defense Clinic. “Protect people that may not need protecting, but don’t make the mistake of not protecting people who need it.”

Victor Manjarrez, a former border patrol agent from the 1980s until 2011, said he had seen human smuggling networks exploit the border over the years, but also many people who genuinely needed help.

“We have a system that’s not perfect, but is designed to take refugees. That is the beauty of it,” he said. “It has a lot of issues, but we have something in place that is designed to be compassionate. And that’s why we have such a big political debate about this.”

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Read the narrative and play the interactive “Waiting Game” at the above link!

Getting refuge often depends on getting the right:

Border Patrol Agent an Asylum Officer to even get into the system;
Lawyer;
Local Immigration Court;
Immigration Judge;
DHS Assistant Chief Counsel;
BIA Panel;
U.S. Court of Appeals jurisdiction;
U.S. Court of Appeals Panel;
Luck.

If something goes wrong anywhere along this line, your case could “go South,” even if it’s very meritorious.

I also agree with Professor Hing that given the UNHCR guidance that asylum applicants ought to be given “the benefit of the doubt,” the generous standard for asylum established by the Supremes in INS v. Cardoza-Fonseca and implemented by the BIA in Matter of Mogharrabi, and the often irreversible nature of wrongful removals to persecution, the system should be designed to “error on the side of the applicant.”

Indeed, one of the things that DHS in my experience does well is detecting and prosecuting systemic asylum fraud. While a few individuals probably do get away with tricking the system, most “professional fraudsters” and their clients eventually are caught and brought to justice, most often in criminal court. Most of these are discovered not by “tough laws” or what happens in Immigration Court, but by more normal criminal investigative techniques: undercover agents, tips from informants, and “disgruntled employees or clients” who “blow the whistle” in return for more lenient treatment for themselves.

Hope YOU get protected, not rejected!

PWS

04-23-18

MORE GOOD NEWS FROM PROFESSOR ALBERTO BENITEZ @ GW LAW: Two More Northern Triangle Lives Saved By Asylum Grants in Arlington – Giving Lie To the Trump Administration/Restrictionist Claim That Northern Triangle Refugees Are “Economic Migrants” — No, The Vast Majority Are “Legitimate Refugees” Being Screwed Over By Our Government’s Skewed, Dishonest, Immoral, & Often Illegal Policies

Friends,

Please join me in congratulating GW Immigration Clinic alum Shira Zeman, ’12, who won an asylum grant for a Central American Mom and her 5 year-old son earlier this week. Please see the attached picture, which I use with permission. Gang members threatened to kill Mom if she did not allow them to use her son in gang activities. These same gang members murdered one of Mom’s neighbors, a police officer, after he refused to allow a family member to join the gang. Mom testified for over an hour, after which the ICE trial attorney told the Immigration Judge she did not oppose asylum. Shira said: “He’s 5 now, but he had just turned 3 when they tried to ‘recruit’ him so he could be used as a drug mule.”

Intense. This installation is a must-see. Being in the ‘hielera,’ and in the ‘desert’ witnessing nighttime arrests by the Border Patrol, was beyond belief. Visitors were in tears and one fell to her knees. I read this Washington Post article prior to my visit but I was unprepared for the experience.

https://www.washingtonpost.com/goingoutguide/alejandro-g-inarritus-virtual-reality-voyage-is-dcs-most-intriguing-experience-right-now/2018/04/11/d2714380-3c04-11e8-974f-aacd97698cef_story.html?utm_term=.8f8162e02386

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Alberto Manuel Benitez
Professor of Clinical Law
Director, Immigration Clinic
The George Washington University Law School
650 20th Street, NW
Washington, DC 20052
(202) 994-7463
(202) 994-4946 fax
abenitez@law.gwu.edu
THE WORLD IS YOURS…
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Congratulations to Shira Zeman, Esq., of Zeman & Petterson PLLC, Falls Church, VA. I’m awed by the legal accomplishments and lives saved by Shira and her law partner Rachel Petterson! Hard to believe that she’s only six years out of law school!

We hear it all the time from Trump, Sessions, Nielsen, CIS, FAIR, GOP White Nationalist right wingers, right-wing media, and perhaps most disturbingly sometimes officials at EOIR and Immigration Judges. These aren’t “real refugees,” just folks coming here to work.

Nothing could be further from the truth. Make no mistake about it, these are “real refugees” intentionally being given the shaft by our biased and unfair Government and in far too many cases being denied the life-saving protection to which they are entitled under both U.S. and international law!

In my experience, few individuals, particularly women and children, undertake the long, dangerous, and uncertain journey from the Northern Triangle to our Southern Border unless they are forced migrants. Indeed, I found that many of the individuals coming from the Northern Triangle were doing fine economically and would have vastly preferred to stay in their homes, rather than being relegated to sometimes menial “entry-level” jobs even when they are able to be released in the U.S. Successful students sometimes lose credit in U.S. school systems and must “start over again” in lower grades or special programs.

Indeed, perhaps ironically, their success helped make them very visible, distinct, and attractive targets for both persecution by the gangs and sometimes also for extortion and mistreatment by corrupt police and government officials in the Northern Triangle. Others were perceived by the gangs to be actual or potential political leaders in the “anti-gang movement.” Moreover, as gangs increasingly become involved in the political process in the Northern Triangle, opposition to gangs takes on heavy political implications.

No, this case is not an “aberration or an exception.” There are lots of similar or identical “moms and kids” out there from the Northern Triangle fighting every day for their very lives in a system already rigged against them and which Jeff Sessions has pledged to make even more unfair and more “user unfriendly.”

The things that allowed this “mom and child’ to succeed are:

Representation by a great lawyer like Shira;
Freedom from detention;
Adequate time to prepare and document the case;
A fair, knowledgeable Immigration Judge not biased against or dismissive of Northern Triangle asylum seekers;
An experienced DHS Assistant Chief Counsel committed to a fair application of asylum law and unafraid to recognize when further litigation or appeal would be counterproductive for both the individual and the court system.

An Attorney General truly interested in upholding the rule of law and our Constitution would be working to replicate what happened in this case elsewhere and to look for ways in which refugees like this could be recognized without having to go to a final merits hearing before an Immigration Judge. He or she would also be encouraging others in the Administration to focus on addressing the problems in the Northern Triangle causing this humanitarian migration, instead of focusing solely on fruitless attempts to discourage and deter the vulnerable migrants themselves.

But, that would an Attorney General “OTJS” — “Other Than Jeff Sessions.”

PWS

04-23-18

GOV’S CRUEL IN ABSENTIA HOAX EXPOSED – NEW CLINIC/URBAN JUSTICE CENTER REPORT SHOWS HOW DHS & EOIR INTENTIONALLY USE BROKEN SYSTEM TO CONSTRUCT A “KNOWINGLY FALSE NARRATIVE” THAT ASYLUM SEEKERS SHIRK HEARINGS – Actually, Representation & Other Very Achievable Reforms Would Raise Appearance Rate Close To 100% — Trump Administration Doubles Down On Obama’s Dishonest Due Process Travesty!

“I answered them that it was not Roman practice to hand over an accused person before he has faced his accusers and had the opportunity to defend himself against their charge.”

Acts 25: 16

HERE’S THE REPORT:

Denied-a-Day-in-Court

EXECUTIVE SUMMARY

Starting in the summer of 2014, the United States began experiencing an unprecedented influx of Central American families who were fleeing violence and seeking humanitarian assistance and safety. Most of these families were from El Salvador, Guatemala, and Honduras. In response, the Obama Administration ordered immigration judges to rapidly adjudicate these cases, often at the cost of

due process. Large numbers of families, unable to obtain legal representation and navigate a complex immigration system, were deported by the federal government, often back to the violence they had fled. Essential to the government’s efforts was the use of in absentia removal orders issued to families upon their missing an immigration court hearing.

In response to the unmet legal needs of this population, the Asylum Seeker Advocacy Project
(ASAP) at the Urban Justice Center and the Catholic Legal Immigration Network, Inc. (CLINIC) began representing families ordered removed in absentia. In almost every case, ASAP and CLINIC successfully challenged the underlying in absentia order and reopened the case. Concurrently, through a Freedom of Information Act (FOIA) request, these organizations obtained previously unreleased immigration court data that reveal key metrics regarding legal representation rates and the use of in absentia removals. Client interviews and data from the FOIA together reveal a startling trend—the government ordered the removal of high numbers of unrepresented families through in absentia orders despite many of those families having passed a credible fear interview with an asylum officer.

This report highlights the high rate of unrepresented families, discusses the obstacles families face in attending their hearings, explains how the immigration system fails families seeking asylum, and provides policy recommendations for how the Administration and Congress can address these shortcomings.

The findings in this report are based on an analysis of the FOIA results regarding representation and removal of 29,808 families from July 2014 to November 2016, as well as the results of the 46 cases in which ASAP and CLINIC provided representation. These findings include the following:

• 22,270 asylum applicants, or 75 percent of the 29,808 families who entered the United States between July 2014 and November 2016, did not have legal representation.

• In 24,862 cases, or 83 percent of the 29,808 families, an immigration judge ordered a family removed. Of those ordered removed, in 21,041 cases, or 85 percent, the order was issued in absentia, i.e. the judge entered the order without the presence of a parent in the court room. Thus, immigration judges ordered the families removed without their having presented their claims for asylum or other defenses to removal.

ASAP and CLINIC successfully challenged the in absentia orders of 44 of their 46 clients (96 percent), with either an immigration judge or the Board of Immigration Appeals (BIA) agreeing to rescind the in absentia order and reopen the case.

Contrary to the narrative that families purposely abscond from immigration court, ASAP and CLINIC’s clients all had legitimate reasons for being unable to attend their hearings, including lack of notice, incorrect government information, serious medical problems, language barriers,
and severe trauma or disabilities. Importantly, ASAP and CLINIC’s clients represented nationals from El Salvador, Guatemala, and Honduras who had received removal orders from 15 different immigration courts. Most of these families were alerted to their removal orders by prior pro bono counsel who represented them while they were in detention, and who then connected them with ASAP and CLINIC’s services. The other families sought general information about asylum from ASAP and CLINIC, leading them to realize they had missed a hearing. Once families became aware of their in absentia removal orders, they overwhelmingly sought to reopen their cases to seek asylum.

ASAP and CLINIC’s high success rate suggests the federal government is deporting large numbers of families without providing them a fair opportunity to plead their cases in immigration court.While ASAP and CLINIC’s data runs through the end of the Obama Administration, in absentia removal orders continue to be issued in immigration courts throughout the country.In order to limit the deportation of families with strong asylum claims and other avenues for immigration relief, the Department of Homeland Security (DHS), the Department of Justice (DOJ), and Congress should implement a variety of legislative and administrative changes that would remedy many of the problems identified in this report. These much-needed changes include improving communication between agencies, providing clearer guidance to families, and updating existing immigration court and enforcement practices.

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This report’s findings certainly match my experience in the Arlington Immigration Court that:

The “no-show” rate for represented asylum seekers was pretty close to 0%.
More than 95% of “in absentia” orders for juveniles eventually were reopened, usually because of defective notice by DHS and/or EOIR.
Almost no unrepresented individuals understood the difference between the “DHS Check-In on Prosperity Avenue” and appearance at the Arlington Immigration Court in Crystal City. Clearly, it had never been explained to them in understandable fashion upon release from custody.

I also have no doubt that the very achievable recommendations for improvements in this report could be accomplished at a fraction of the cost of today’s cruel, ineffective, policies of militarizing the border, building the “New American Gulag,” prosecuting asylum seekers as criminals, and attempting to curtail important legal and Constitutional rights.

PWS

04-20-18

IT TOOK MANY YEARS AND LOTS OF EFFORT, BUT RESPONDENTS FINALLY WON ONE @ THE BIA — ON STALKING — Matter of Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018), overruling Matter of Sanchez-Lopez, 26 I&N Dec. 7 (BIA 2012)

Sanchez3924

Matter of Sanchez-Lopez, 27 I&N Dec. 256 (BIA 2018), overruling Matter of Sanchez-Lopez, 26 I&N Dec. 7 (BIA 2012)

BIA HEADNOTE:

The offense of stalking in violation of section 646.9 of the California Penal Code is not “a crime of stalking” under section 237(a)(2)(E)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(E)(i) (2012). Matter of Sanchez-Lopez, 26 I&N Dec. 71 (BIA 2012), overruled.

PANEL: BIA APPELLATE IMMIGRATION JUDGES PAULEY, GUENDELSBERGER, MALPHRUS

OPINION BY: JUGE JOHN GUENDELSBERGER

DISSENTING OPINION: JUDGE GARRY D. MALPHRUS

KEY QUOTE FROM MAJORITY:

Although the DHS appears to concede that stalking under section 646.9 is “overbroad” relative to the definition we outlined in Matter of Sanchez-Lopez, it asserts that we should broaden the definition of a “crime of stalking” under section 237(a)(2)(E)(i) of the Act to meet contemporary standards. Specifically, it argues that we should redefine the term “stalking” in the Act based on its commonly understood meaning, either in 2012 when we decided Matter of Sanchez-Lopez, or based on the common elements of State and Federal stalking statutes in 2017.

We recognize that the common elements of stalking have evolved since section 237(a)(2)(E)(i) was added to the Act in 1996, in that a number of States have broadened the term “stalking” to cover threats of nonphysical harm in an effort to afford greater protections to their citizens against stalkers. However, we are constrained to define offenses “based on the ‘generic, contemporary meaning’ of the statutory words at the time the

statute was enacted.” Matter of Cardiel, 25 I&N Dec. 12, 17 (BIA 2009) (quoting Taylor v. United States, 495 U.S. 575, 598 (1990)); see also Matter of Alvarado, 26 I&N Dec. 895, 897 (BIA 2016). The DHS relies on the decision of the Supreme Court in Voisine v. United States, 136 S. Ct. 2272, 2281 (2016), which declined “to wind the clock back” to consider the common law in discerning whether the provision at issue reached reckless acts. But that case also looked to the legislative history and the “state-law backdrop” that existed at the time the statute was enacted. Id. at 2280–82. We are therefore unpersuaded to broaden the definition of the term “stalking” under section 237(a)(2)(E) of the Act to encompass the most contemporary understanding of that offense.

Upon reconsideration, we conclude that the offense of stalking in violation of section 646.9 of the California Penal Code is not “a crime of stalking” under section 237(a)(2)(E)(i) of the Act. We will therefore overrule our decision in Matter of Sanchez-Lopez and vacate all prior orders in this case to the extent they hold to the contrary. Accordingly, because the respondent is not removable, his appeal will be sustained and the removal proceedings will be terminated.

KEY QUOTE FROM DISSENT:

The legal landscape has changed since we published our decision inMatter of Sanchez-Lopez. This case illustrates the limitations of applying the categorical approach imposed by the Supreme Court in Descamps andMathis to provisions of the immigration laws enacted by Congress for the purpose of removing aliens convicted of serious criminal conduct. See Matter of Chairez, 27 I&N Dec. 21, 25–26 (BIA 2017) (Malphrus, concurring). Under this approach, only if section 646.9 is divisible can we look to the respondent’s conviction records to determine if his conduct involved an intent to cause the victim to fear death or bodily injury, as many such stalking cases do. Because of this strict categorical approach, many statutes that have since broadened the scope of protection for stalking victims may not qualify as a categorical match to section 237(a)(2)(E)(i) of the Act. As a result, in California and many other States, an alien who was criminally convicted of stalking an innocent victim will not be removable under the Act, even though the record makes clear that he or she committed “a crime of stalking.” It is highly unlikely that Congress intended this result.

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I liked the comment from Dan Kowalski over at LexisNexis Immigration Community: “It only took about 6 years and several trips up and down the administrative and judicial food chain.”

My point (that I make over and over) is that there is NO WAY that an unrepresented respondent (particularly in DHS detention where most respondents convicted of crimes end up) could have achieved this result. That means that unrepresented individuals are wrongfully deported by DHS every day.

The Immigration Court system already is failing in its duty to guarantee fairness and due process to all respondents. Outrageously, instead of doing what he should do — working to insure maximum representation and raising the quality of Immigration Judge and BIA decisions to insure Due Process — Jeff Sessions is doing just the opposite!

He’s putting “haste makes waste quotas” on Immigration Judges; encouraging judges to deny continuances needed to obtain counsel and adequately prepare defenses; locating Immigration Courts in detention centers which intentionally lack both public access and ready availability of pro bono counsel; using coercive, substandard detention and family separation to deter individuals from pursuing potentially successful claims and defenses; further skewing the law against asylum seekers; and suspending the essential “Legal Orientation Program” which helps unrepresented individuals in detention understand their rights and what will happen in Immigration Court before their first appearance before a judge.

PWS

04-20-18

SUPREME BOMBSHELL: JUSTICE GORSUCH PROVIDES CRITICAL FIFTH VOTE FOR OVERTURNING DEPORTATION STATUTE FOR UNCONSTITUTIONAL VAGUENESS! — Administration Suffers Yet Another Legal Setback, This Time At the High Court! – Sessions v. Dimaya — Get The Full Opinion, Court Syllabus, Key Quotes, & My “Instant Analysis” HERE!

Dimaya–15-1498_1b8e

Sessions v. Dimaya, No. 15–1498, 04-17-18 (5-4 Decision)

Syllabus By Court Staff:

The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the Unit- ed States will be deported. See 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C). An aggravated felony includes “a crime of violence (as defined in [18 U.S.C. §16] . . . ) for which the term of imprisonment [is] at least one year.” §1101(a)(43)(f). Section 16’s definition of a crime of violence is divided into two clauses—often referred to as the elements clause, §16(a), and the residual clause, §16(b). The residual clause, the provision at issue here, defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” To decide whether a person’s conviction falls within the scope of that clause, courts apply the categorical approach. This approach has courts ask not whether “the particular facts” underlying a conviction created a substantial risk, Leocal v. Ashcroft, 543 U. S. 1, 7, nor whether the statutory elements of a crime require the creation of such a risk in each and every case, but whether “the ordinary case” of an offense poses the requisite risk, James v. United States, 550 U. S. 192, 208.

Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California first-degree bur- glary is a “crime of violence” under §16(b). While Dimaya’s appeal was pending in the Ninth Circuit, this Court held that a similar re-

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SESSIONS v. DIMAYA Syllabus

sidual clause in the Armed Career Criminal Act (ACCA)—defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B)—was unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause. Johnson v. United States, 576 U. S. ___, ___. Relying on Johnson, the Ninth Circuit held that §16(b), as incorporated into the INA, was also unconstitu- tionally vague.

Held: The judgment is affirmed.

803 F. 3d 1110, affirmed.
JUSTICE KAGAN delivered the opinion of the Court with respect to

Parts I, III, IV–B, and V, concluding that §16’s residual clause is un- constitutionally vague. Pp. 6–11, 16–25.

(a) A straightforward application of Johnson effectively resolves this case. Section 16(b) has the same two features as ACCA’s residu- al clause—an ordinary-case requirement and an ill-defined risk threshold—combined in the same constitutionally problematic way. To begin, ACCA’s residual clause created “grave uncertainty about how to estimate the risk posed by a crime” because it “tie[d] the judi- cial assessment of risk” to a speculative hypothesis about the crime’s “ordinary case,” but provided no guidance on how to figure out what that ordinary case was. 576 U. S., at ___. Compounding that uncer- tainty, ACCA’s residual clause layered an imprecise “serious poten- tial risk” standard on top of the requisite “ordinary case” inquiry. The combination of “indeterminacy about how to measure the risk posed by a crime [and] indeterminacy about how much risk it takes for the crime to qualify as a violent felony,” id., at ___, resulted in “more unpredictability and arbitrariness than the Due Process Clause tolerates,” id., at ___. Section 16(b) suffers from those same two flaws. Like ACCA’s residual clause, §16(b) calls for a court to identify a crime’s “ordinary case” in order to measure the crime’s risk but “offers no reliable way” to discern what the ordinary version of any offense looks like. Id., at ___. And its “substantial risk” thresh- old is no more determinate than ACCA’s “serious potential risk” standard. Thus, the same “[t]wo features” that “conspire[d] to make” ACCA’s residual clause unconstitutionally vague also exist in §16(b), with the same result. Id., at ___. Pp. 6–11.

(b) The Government identifies three textual discrepancies between ACCA’s residual clause and §16(b) that it claims make §16(b) easier to apply and thus cure the constitutional infirmity. None, however, relates to the pair of features that Johnson found to produce imper- missible vagueness or otherwise makes the statutory inquiry more determinate. Pp. 16–24.

(1) First, the Government argues that §16(b)’s express require-

Cite as: 584 U. S. ____ (2018) 3

Syllabus

ment (absent from ACCA) that the risk arise from acts taken “in the course of committing the offense,” serves as a “temporal restriction”— in other words, a court applying §16(b) may not “consider risks aris- ing after” the offense’s commission is over. Brief for Petitioner 31. But this is not a meaningful limitation: In the ordinary case of any of- fense, the riskiness of a crime arises from events occurring during its commission, not events occurring later. So with or without the tem- poral language, a court applying the ordinary case approach, whether in §16’s or ACCA’s residual clause, would do the same thing—ask what usually happens when a crime is committed. The phrase “in the course of” makes no difference as to either outcome or clarity and cannot cure the statutory indeterminacy Johnson described.

Second, the Government says that the §16(b) inquiry, which focus- es on the risk of “physical force,” “trains solely” on the conduct typi- cally involved in a crime. Brief for Petitioner 36. In contrast, ACCA’s residual clause asked about the risk of “physical injury,” requiring a second inquiry into a speculative “chain of causation that could possibly result in a victim’s injury.” Ibid. However, this Court has made clear that “physical force” means “force capable of causing physical pain or injury.” Johnson v. United States, 559 U. S. 133, 140. So under §16(b) too, a court must not only identify the conduct typically involved in a crime, but also gauge its potential consequenc- es. Thus, the force/injury distinction does not clarify a court’s analy- sis of whether a crime qualifies as violent.

Third, the Government notes that §16(b) avoids the vagueness of ACCA’s residual clause because it is not preceded by a “confusing list of exemplar crimes.” Brief for Petitioner 38. Those enumerated crimes were in fact too varied to assist this Court in giving ACCA’s residual clause meaning. But to say that they failed to resolve the clause’s vagueness is hardly to say they caused the problem. Pp. 16– 21.

(2) The Government also relies on judicial experience with §16(b), arguing that because it has divided lower courts less often and resulted in only one certiorari grant, it must be clearer than its ACCA counterpart. But in fact, a host of issues respecting §16(b)’s application to specific crimes divide the federal appellate courts. And while this Court has only heard oral arguments in two §16(b) cases, this Court vacated the judgments in a number of other §16(b) cases, remanding them for further consideration in light of ACCA decisions. Pp. 21–24.

JUSTICE KAGAN, joined by JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE SOTOMAYOR, concluded in Parts II and IV–A:

(a) The Government argues that a more permissive form of the void-for-vagueness doctrine applies than the one Johnson employed

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SESSIONS v. DIMAYA Syllabus

because the removal of an alien is a civil matter rather than a crimi- nal case. This Court’s precedent forecloses that argument. In Jor- dan v. De George, 341 U. S. 223, the Court considered what vague- ness standard applied in removal cases and concluded that, “in view of the grave nature of deportation,” the most exacting vagueness standard must apply. Id., at 231. Nothing in the ensuing years calls that reasoning into question. This Court has reiterated that deporta- tion is “a particularly severe penalty,” which may be of greater con- cern to a convicted alien than “any potential jail sentence.” Jae Lee v.United States, 582 U. S. ___, ___. Pp. 4–6.

(b) Section 16(b) demands a categorical, ordinary-case approach. For reasons expressed in Johnson, that approach cannot be aban- doned in favor of a conduct-based approach, which asks about the specific way in which a defendant committed a crime. To begin, the Government once again “has not asked [the Court] to abandon the categorical approach in residual-clause cases,” suggesting the fact- based approach is an untenable interpretation of §16(b). 576 U. S., at ___. Moreover, a fact-based approach would generate constitutional questions. In any event, §16(b)’s text demands a categorical ap- proach. This Court’s decisions have consistently understood lan- guage in the residual clauses of both ACCA and §16 to refer to “the statute of conviction, not to the facts of each defendant’s conduct.”Taylor v. United States, 495 U. S. 575, 601. And the words “by its na- ture” in §16(b) even more clearly compel an inquiry into an offense’s normal and characteristic quality—that is, what the offense ordinari- ly entails. Finally, given the daunting difficulties of accurately “re- construct[ing],” often many years later, “the conduct underlying [a] conviction,” the conduct-based approach’s “utter impracticability”— and associated inequities—is as great in §16(b) as in ACCA. John- son, 576 U. S., at ___. Pp. 12–15.

JUSTICE GORSUCH, agreeing that the Immigration and Nationality Act provision at hand is unconstitutionally vague for the reasons identified in Johnson v. United States, 576 U. S. ___, concluded that the void for vagueness doctrine, at least properly conceived, serves as a faithful expression of ancient due process and separation of powers principles the Framers recognized as vital to ordered liberty under the Constitution. The Government’s argument that a less-than-fair- notice standard should apply where (as here) a person faces only civ- il, not criminal, consequences from a statute’s operation is unavail- ing. In the criminal context, the law generally must afford “ordinary people . . . fair notice of the conduct it punishes,” id., at ___, and it is hard to see how the Due Process Clause might often require any less than that in the civil context. Nor is there any good reason to single out civil deportation for assessment under the fair notice standard

Cite as: 584 U. S. ____ (2018) 5

Syllabus

because of the special gravity of its penalty when so many civil laws impose so many similarly severe sanctions. Alternative approaches that do not concede the propriety of the categorical ordinary case analysis are more properly addressed in another case, involving ei- ther the Immigration and Nationality Act or another statute, where the parties have a chance to be heard. Pp. 1–19.

KAGAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, IV–B, and V, in which GINSBURG, BREYER, SOTOMAYOR, and GORSUCH, JJ., joined, and an opin- ion with respect to Parts II and IV–A, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. GORSUCH, J., filed an opinion concurring in part and concurring in the judgment. ROBERTS, C. J., filed a dissenting opinion, in which KENNEDY, THOMAS, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which KENNEDY and ALITO, JJ., joined as to Parts I–C–2, II–A–1, and II–B.

Key Quote From Justice Kagan’s Majority (Pt. V):

Johnson tells us how to resolve this case. That decision held that “[t]wo features of [ACCA’s] residual clause con- spire[d] to make it unconstitutionally vague.” 576 U. S., at ___ (slip op., at 5). Because the clause had both an ordinary-case requirement and an ill-defined risk thresh- old, it necessarily “devolv[ed] into guesswork and intui- tion,” invited arbitrary enforcement, and failed to provide fair notice. Id., at ___ (slip op., at 8). Section 16(b) possesses the exact same two features. And none of the minor linguistic disparities in the statutes makes any real difference. So just like ACCA’s residual clause, §16(b) “produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id., at ___ (slip op., at 6). We accordingly affirm the judgment of the Court of Appeals.

Key Quote From Justice Gorsuch”s Concurring Opinion:

Vague laws invite arbitrary power. Before the Revolu tion, the crime of treason in English law was so capa ciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crown’s abuse of “pretended” crimes like this as one of their reasons for revolution. See Declaration of Independence ¶21. Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.

The law before us today is such a law. Before holding a lawful permanent resident alien like James Dimaya sub ject to removal for having committed a crime, the Immi gration and Nationality Act requires a judge to determine that the ordinary case of the alien’s crime of conviction involves a substantial risk that physical force may be used. But what does that mean? Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products. How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force? The truth is, no one knows. The law’s silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more.

Key Quote From Chief Justice Roberts’s Dissenting Opinion:

The more constrained inquiry required under §16(b)— which asks only whether the offense elements naturally carry with them a risk that the offender will use force in committing the offense—does not itself engender “grave uncertainty about how to estimate the risk posed by a crime.” And the provision’s use of a commonplace sub- stantial risk standard—one not tied to a list of crimes that lack a unifying feature—does not give rise to intolerable “uncertainty about how much risk it takes for a crime to qualify.” That should be enough to reject Dimaya’s facial vagueness challenge.4

Because I would rely on those distinctions to uphold

——————

4 The Court also finds it probative that “a host of issues” respecting §16(b) “divide” the lower courts. Ante, at 22. Yet the Court does little to explain how those alleged conflicts vindicate its particular concern about the provision (namely, the ordinary case inquiry). And as the Government illustrates, many of those divergent results likely can be chalked up to material differences in the state offense statutes at issue. Compare Escudero-Arciniega v. Holder, 702 F. 3d 781, 783–785 (CA5 2012) (per curiam) (reasoning that New Mexico car burglary “requires that the criminal lack authorization to enter the vehicle—a require- ment alone which will most often ensure some force [against property] is used”), with Sareang Ye v. INS, 214 F. 3d 1128, 1134 (CA9 2000) (finding it relevant that California car burglary does not require unlaw- ful or unprivileged entry); see Reply Brief 17–20, and nn. 5–6.

14 SESSIONS v. DIMAYA ROBERTS, C. J., dissenting

§16(b), the Court reproaches me for not giving sufficient weight to a “core insight” of Johnson. Ante, at 10, n. 4; seeante, at 15 (opinion of GORSUCH, J.) (arguing that §16(b) runs afoul of Johnson “to the extent [§16(b)] requires an ‘ordinary case’ analysis”). But the fact that the ACCA residual clause required the ordinary case approach was not itself sufficient to doom the law. We instead took pains to clarify that our opinion should not be read to impart such an absolute rule. See Johnson, 576 U. S., at ___ (slip op., at 10). I would adhere to that careful holding and not reflexively extend the decision to a different stat- ute whose reach is, on the whole, far more clear.

The Court does the opposite, and the ramifications of that decision are significant. First, of course, today’s holding invalidates a provision of the Immigration and Nationality Act—part of the definition of “aggravated felony”—on which the Government relies to “ensure that dangerous criminal aliens are removed from the United States.” Brief for United States 54. Contrary to the Court’s back-of-the-envelope assessment, see ante, at 23, n.12, the Government explains that the definition is “critical” for “numerous” immigration provisions. Brief for United States 12.

In addition, §16 serves as the universal definition of “crime of violence” for all of Title 18 of the United States Code. Its language is incorporated into many procedural and substantive provisions of criminal law, including provisions concerning racketeering, money laundering, domestic violence, using a child to commit a violent crime, and distributing information about the making or use of explosives. See 18 U. S. C. §§25(a)(1), 842(p)(2), 1952(a), 1956(c)(7)(B)(ii), 1959(a)(4), 2261(a), 3561(b). Of special concern, §16 is replicated in the definition of “crime of violence” applicable to §924(c), which prohibits using or carrying a firearm “during and in relation to any crime of violence,” or possessing a firearm “in furtherance of any such crime.” §§924(c)(1)(A), (c)(3). Though I express no view on whether §924(c) can be distinguished from the provision we consider here, the Court’s holding calls into question convictions under what the Government warns us is an “oft-prosecuted offense.” Brief for United States 12.

Because Johnson does not compel today’s result, I respectfully dissent.

Key Quote From Justice Thomas’s Dissent:

I agree with THE CHIEF JUSTICE that 18 U. S. C. §16(b), as incorporated by the Immigration and Nationality Act (INA), is not unconstitutionally vague. Section 16(b) lacks many of the features that caused this Court to invalidate the residual clause of the Armed Career Criminal Act (ACCA) in Johnson v. United States, 576 U. S. ___ (2015). ACCA’s residual clause—a provision that this Court had applied four times before Johnson—was not unconstitu tionally vague either. See id., at ___ (THOMAS, J., concur ring in judgment) (slip op., at 1); id., at ___–___ (ALITO, J., dissenting) (slip op., at 13–17). But if the Court insists on adhering to Johnson, it should at least take Johnson at its word that the residual clause was vague due to the “‘sum’” of its specific features. Id., at ___ (majority opinion) (slip op., at 10). By ignoring this limitation, the Court jettisonsJohnson’s assurance that its holding would not jeopardize “dozens of federal and state criminal laws.” Id., at ___ (slip op., at 12).

While THE CHIEF JUSTICE persuasively explains why respondent cannot prevail under our precedents, I write separately to make two additional points. First, I continue to doubt that our practice of striking down statutes as unconstitutionally vague is consistent with the original meaning of the Due Process Clause. See id., at ___–___ (opinion of THOMAS, J.) (slip op., at 7–18). Second, if the Court thinks that §16(b) is unconstitutionally vague be cause of the “categorical approach,” see ante, at 6–11, then the Court should abandon that approach—not insist on reading it into statutes and then strike them down. Accordingly, I respectfully dissent.

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Gee whiz, those Trumpsters and GOP Senators who were overflowing with their praise of Justice Gorsuch’s brilliance during his confirmation hearings must be beside themselves now that he joined the “Gang of Four” in striking down a statute in an immigration enforcement case!

I predicted early on that Gorsuch might surprise those on both sides who expected him to be a “complete Trump toady.” Indeed, the case that drove today’s decision in Dimaya, Johnson v. United States, was written by none other than Justice Scalia, one of Justice Gorsuch’s “juridical role models.” At bottom, Dimaya is all about strict adherence to the Constitution and separation of powers, two things that Gorsuch as extolled in past decisions.

No, I don’t think that Justice Gorsuch is likely to team up with Justices Kagan, Ginsburg, Breyer, and Sotomayor on most future immigration cases. But, I am encouraged that he seems to be going where his legal principles, whether one agrees with them or not, take him, rather than just voting to support the Administration’s hard-line immigration agenda as many had predicted and some had hoped or assumed would happen.

There are other important immigration cases before the Supremes where adherence to the literal language of a statute and skepticism about giving the Executive unbridled power under separation of powers could aid the respondent’s position. So, while this might not be a “normal” majority configuration, it could well be repeated in some future immigration case. Let’s hope so!

Interestingly, I had this issue come up in one of the last cases I wrote before retiring from the Arlington Immigraton Court. I noted that the respondent made a strong argument for unconstitutionality under Johnson v, United States. However, as an Immigration Judge, I had no authority to hold a statute unconstitutional (although, ironically, under today’s convoluted system, the respondent was required to make his constitutional argument before me to “preserve” it for review by the Court of Appeals). So, I merely “noted” the constitutional issue for those higher up the “judicial food chain” and decided the issue on the basis that burglary as defined under the state law in question was not categorically a “crime of violence” under the so-called “categorical approach.”

Two other points worth mentioning:

In this particular case, the Supremes upheld the ruling of the much maligned (particularly by Trump & Sessions) 9th Circuit Court of Appeals, having jurisdiction over California ;
This type of issue is frequently recurring in Immigration Court where many, perhaps the majority, of respondents are unrepresented. How would an unrepresented individual who does not even speak English make the type of sophisticated legal arguments that a) got this case to the Supremes in the first place, and b) persuaded the majority of the Court? Of course, they couldn’t. That’s why much of what is going on in today’s U.S. Immigration Courts is a farce — a clear violation of constitutional Due Process that the Federal Courts have been doing their best to ignore or gloss over for many decades.
As more light is shed on the much misunderstood U.S. Immigration Court system, both Congress and the Article III Courts must come to grips with the procedural, ethical, and fairness inadequacies built into today’s “captive” Immigration Courts and the utter lack of any concern about protecting the legal rights of migrants shown by Jeff Sessions and the rest of the Trump Administration. Shockingly, they have actually pledged to stomp on migrants already unfulfilled rights to fair hearings in the name of a “false efficiency.”
Join the “New Due Process Army” and help stop the continuing abuses of human rights, statutory rights, and constitutional rights of migrants by Sessions and the rest of the “Trump Scofflaws!”

PWS

04-17-18

HON. JEFFREY CHASE: Sessions’s Quotas Attack Fairness, Due Process, Undermine U.S. Immigration Court System!

https://www.jeffreyschase.com/blog/2018/4/7/eoir-imposes-completion-quotas-on-ijs

Apr 7 EOIR Imposes Completion Quotas on IJs

Ten years ago, the U.S. Court of Appeals for the Third Circuit decided Hashmi v. Att’y Gen. of the U.S.1 The case involved a request to continue a removal proceeding which the Department of Homeland Security did not oppose. The respondent was married to a U.S. citizen; he would become eligible to adjust his status in immigration court once the visa petition she had filed on his behalf was approved by DHS. However, the approval was delayed for reasons beyond the respondent’s control. One of those reasons was that a part of the respondent’s DHS file was needed by both the office in Cherry Hill, NJ adjudicating the visa petition and the DHS attorney in Newark prosecuting the removal case.

The immigration judge decided that he could wait no longer. Noting that the pendency of the case had exceeded the agency’s stated case completion goals, the judge denied the continuance and ordered the respondent deported. The U.S. Court of Appeals for the Third Circuit reversed, holding that “to reach a decision about whether to grant or deny a motion for a continuance based solely on case-completion goals, with no regard for the circumstances of the case itself, is impermissibly arbitrary.”

In response to Hashmi, the BIA issued a precedent decision stating that unopposed motions of that type should generally be granted.2 In subsequent decisions, the BIA provided further guidance in allowing IJs to make reasonable determinations to continue such cases,3 and to administratively close proceedings where it would further justice (as in Hashmi, where the need for the DHS file to be in two places at once was preventing the case from proceeding).4

In subjecting immigration judges to strict, metrics-based reviews last week, EOIR’s director, James McHenry, may pressure immigration judges into taking the types of actions barred by Hashmi. Under the newly-announced metrics, individual judges may run the risk of disciplinary action for granting reasonable requests for continuance, or for other delays necessary for reaching a fair result. The combined actions of McHenry (who prior to being promoted to the position of agency director had worked for EOIR for approximately 6 months as an administrative law judge with OCAHO, the only component of EOIR that doesn’t deal with immigration law or the immigration courts), and Attorney General Jeff Sessions in recently certifying four BIA decisions to himself, could erase the above positive case law developments of the past decade, and replace them with an incentive for rushed decisions that do not afford adequate safeguards to non-citizens facing deportation.

Allowing reasonable continuances for the parties to obtain counsel, present evidence, and formulate legal theories, or to allow other agencies to adjudicate applications impacting eligibility, is an essential part of affording justice. Judges also need to fully understand the legal arguments presented. When an issue arises in the course of a hearing, it is not uncommon for a judge to ask the parties for briefs, and for the judge to then conduct his or her own legal research before deciding the matter. A detailed decision is also necessary to allow for meaningful review on appeal. However, all of this takes time, and the performance of individual judges will be found to be unsatisfactory or in need of improvement if they complete less than 700 cases per year, complete less than 95 percent of cases at their first merits hearing, or have 15 percent of their cases remanded on appeal.

Some recently reported actions by immigration judges in the name of expediency are troubling. Last Sunday’s episode of Last Week Tonight with John Oliver (for which my colleague Carol King and I served as subject-matter sources) featured a credible-fear review hearing by an immigration judge that lasted one minute and 43 seconds in its entirety (and was probably doubled in length by the need for an interpreter). The judge asked the unrepresented respondent a total of two questions before reaching this decision: “Well, the government of the United States doesn’t afford you protection for this type of reason. I affirm the Asylum Officer’s decision.” It’s not clear how the judge could have been confident in such conclusion. The respondent was detained and had not yet had an opportunity to consult with counsel. Her claim was only sketched in the broadest outline; upon further development by an attorney, it may well have fallen into the “type of reason” for which asylum may be granted. Her credibility was never doubted; in fact, the program reported that she was assaulted at gunpoint by the man she fled after she was deported to her country.

In another case arising in the Ninth Circuit, C.J.L.G. v. Sessions,5 an immigration judge told the mother of a child in removal proceedings who was unable to retain counsel that she could represent her son, and proceeded with the child’s asylum hearing. Of course, the mother was not qualified for the task. Although the son had been threatened with death for resisting gang recruitment efforts, he was denied asylum in a hearing in which many critical questions that could have helped develop a nexus between his fear and a legally protected ground for asylum were never asked. This occurred because the judge did not feel that he could grant another continuance to provide the respondent an additional opportunity to retain counsel.

All of the above-described actions by IJs occurred prior to last week’s announcement by the EOIR director. Should judges struggling to meet the benchmarks feel their job security to be at risk, will actions such as those described above become the norm?

As previously mentioned, the Attorney General certified four decisions of the BIA to himself shortly before the director’s announcement of the new metrics. In one of those cases, Matter of E-F-H-L-,6 Sessions vacated a 2014 BIA precedent decision requiring immigration judges to provide asylum applicants a full hearing on their claim. In another, Matter of A-B-,7 Sessions chose a case in which the BIA twice reversed an immigration judge’s denial of asylum to a victim of domestic violence, and on certification has made the case a referendum on whether victims of private criminal activity may constitute a particular social group for asylum purposes.

Should Sessions decide this issue in the negative, the two decisions taken together may allow for the type of quick denials of the “Government…doesn’t afford you protection for this type of reason” variety discussed above. Fair-minded judges who will continue to hold full hearings and consider legal arguments in favor of granting relief may find it more difficult to meet all of the above benchmarks.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

Notes:

531 F.3d 256 (3d Cir. 2008)

Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009).

See Matter of Rajah, 25 I&N Dec. 127 (BIA 2009) (concerning continuances due to pending employment-based visa petitions) ; Matter of C-B-, 25 I&N Dec. 888 (BIA 2012) (requiring reasonable and realistic continuances to obtain counsel); Matter of Montiel, 26 I&N Dec. 555 (BIA 2015) (allowing delaying proceedings for adjudication of criminal appeals).

See Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012); Matter of W-Y-U-, 27 I&N Dec. 17 (BIA 2017).

No. 16-73801 (9th Cir. Jan. 29, 2018); Pet. for rehearing and rehearing en banc pending.

27 I&N Dec. 226 (A.G. March 5, 2018)

27 I&N Dec. 227 (A.G. March 7, 2018)

JEFF CHASE

LAST WEEK TONIGHT: John Oliver “Shreds The Feds” — Exposes Parody Of Justice & Due Process In U.S. Immigration Courts – With Guest Appearances By Retired Judges John Gossart & Me & Judge Dana Marks – Also Featuring “Gonzo Apocalypto “ As “The Fourth Horseman Of The Apocalypse” & “Tot Court” As Perhaps The Second Worst Court In America After The US Immigration Courts — Listen To An Actual Recording Of An Immigration Judge Misapplying Protection Law in A 4-Question, 1 Min. 43 Sec. “Kangaroo Court” Hearing Resulting In An Assault At Gunpoint!

Here’s the video:

https://www.huffingtonpost.com/entry/john-oliver-immigration-court_us_5ac1c6c7e4b0f112dc9d6582

The tragedy is that bad as this sounds, the reality of what’s going on every day in this broken, failed, and disingenuous system is probably much worse than what’s portrayed here.

Yup, we can all chuckle at others’ misfortune. But, if Trump, Sessions, and the White Nationalist restrictionist crowd aren’t removed from office, this will be how all of our rights are treated. Someday, all of us are going to need to rely on our Constitutional rights. And, if Trump & Sessions have their way, you’ll be longing for the “Kiddie Court” rather than the travesty that’s being called “Due Process” in our Immigration Courts.

Harm to the most vulnerable among us is harm to all. Join the New Due Process Army and fight for the real America! Due Process Forever! Trump & Sessions Never!

PWS

04-02-18

NPR: Sessions Out To Destroy US Immigration Court System — “All the more reason why we need an independent Article I U.S. Immigration Court removed from the political shenanigans and enforcement bias of Sessions and his DOJ!”

https://www.npr.org/2018/03/29/597863489/sessions-want-to-overrule-judges-who-put-deportation-cases-on-hold

Joel Rose reports for NPR:

The Trump administration has been trying to ramp up deportations of immigrants in the country illegally. But one thing has been standing in its way: Immigration judges often put these cases on hold.

Now Attorney General Jeff Sessions is considering overruling the judges.

One practice that is particularly infuriating to Sessions and other immigration hard-liners is called administrative closure. It allows judges to put deportation proceedings on hold indefinitely.

“Basically they have legalized the person who was coming to court, because they were illegally in the country,” Sessions said during a speech in December.

Sessions is using his authority over the immigration court system to review a number of judicial decisions. If he overturns those decisions, thousands of other cases could be affected. In this way, he is expected to end administrative closure, or scale it back.

The attorney general may also limit when judges can grant continuances and who qualifies for asylum in the United States.

This could reshape the nation’s immigration courts, which are overseen by the Justice Department, and make them move faster. Sessions says he is trying to clear a massive backlog of cases that is clogging the docket.

But critics say he is weighing changes that would threaten the due process rights of immigrants, and the integrity of immigration courts.

“What he wants is an immigration court system which is rapid, and leads to lots of deportations,” said Nancy Morawetz, who teaches the Immigrant Rights Clinic at New York University School of Law.

“It’s really just an unprecedented move by the attorney general to change the way the whole system works,” she said.

It’s rare for an attorney general to exercise this power, but Sessions has done it four times in the past three months.

Separately, for the first time, the Justice Department is setting quotas for immigration judges, pushing them to resolve cases quickly in order to meet performance standards.

It’s not just immigration lawyers who are worried about the effect of any changes. The union that represents immigration judges is concerned, too.

“A lot of what they are doing raises very serious concerns about the integrity of the system,” said Judge Ashley Tabaddor, president of the National Association of Immigration Judges, “judges are supposed to be free from these external pressures.”

The attorney general insists he’s trying to make sure that judges are deciding cases “fairly and efficiently.” And says he is trying to clear a backlog of nearly 700,000 cases.

That is in addition to the hundreds of thousands of cases in administrative closure. Nearly 200,000 immigration cases have been put on hold in this way in the past five years alone.

“Far and away, administrative closure was being abused,” said Cheryl David, a former immigration judge who is now a fellow at the Center for Immigration Studies, which advocates for lower levels of immigration.

He says many of those cases should have ended in deportation. “But rather than actually going through that process, the Obama administration simply administratively closed them. And took them off the docket to be forgotten,” he said.

Sessions has chosen to personally review the case of an undocumented immigrant named Reynaldo Castro-Tum who didn’t show up for his removal hearing. The judge wondered whether the man ever got the notice to appear in court and put his deportation proceedings on hold.

In a legal filing in January, Sessions asked whether judges have the authority to order administrative closure and under what circumstances.

Immigration lawyers and judges say there are legitimate reasons to administratively close a case. For instance, some immigrants are waiting for a final decision on visa or green card applications.

There is a backlog for those applications, too. They’re granted by U.S. Citizenship and Immigration Services, which is separate from immigration court. And that can take months, if not years.

Immigration lawyers and judges are worried that undocumented immigrants could be deported in the meantime.

“You know this is not the private sector where you pay extra money and you can get it done in two days,” said Cheryl David, an immigration lawyer in New York.

David represents hundreds of undocumented immigrants who are facing deportation. She often asks judges to put the proceedings on hold.

“It gives our clients some wiggle room to try and move forward on applications,” she said. “These are human beings, they’re not files.”

Immigration lawyers say these changes could affect immigrants across the country.

Brenda DeLeon has applied for a special visa for crime victims who are undocumented. She says her boyfriend beat her up, and she went to the police.

She came to the U.S. illegally from El Salvador in 2015, fleeing gang violence, and settled in North Carolina.

“If I go back, then my life is in danger,” DeLeon said through a translator. “And not only mine, but my children’s lives too.”

For now, a judge has put DeLeon’s deportation case on hold while she waits for an answer on her visa application.

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Get the full audio version from NPR at the above link.

Haste makes waste! Gimmicks to cut corners, deny due process, and cover up the Administration’s own incompetent and politically driven mal-administration of the Immigration Courts is likely to cause an adverse reaction by the “real courts” — the Article III Courts of Appeals — who ultimately have to “sign off” on the railroading of individuals back to potentially deadly situations.

I also have some comments on this article.

In Castro-Tum, on appeal the BIA panel corrected the Immigration Judge’s error in administratively closing the case. Consequently, there was no valid reason for the Attorney General’s “certification” and using the case for a wide ranging inquiry into administrative closing that was almost completely divorced from the facts of Castro-Tum.
I also question Judge Arthur’s unsupported assertion that “Far and away administrative closing was being abused.”
- According to TRAC Immigration, administrative closing of cases as an exercise of “prosecutorial discretion” by the DHS Assistant Chief Counsel accounted for a mere 6.7% of total administrative closings during the four-year period ending in FY 2015.
- In Arlington where I sat, administrative closing by the Assistant Chief Counsel was a very rigorous process that required the respondent to document good conduct, length of residence, family ties, employment, school records, payment of taxes, community involvement, and other equities and contributions to the U.S. With 10 to 11 million so-called “undocumented” individuals in the U.S., removing such individuals, who were actually contributing to their communities, would have been a complete waste of time and limited resources.
- The largest number of administrative closings in Arlington probably resulted from individuals in Immigration Court who:
  - Had been granted DACA status by USCIS;
  - Had been granted TPS by USCIS;
  - Had approved “U” nonimmigrant visas as “victims of crime,” but were waiting for the allocation of a visa number by the USCIS;
  - Had visa petitions or other applications that could ultimately have qualified them for permanent legal immigration pending adjudication by the USCIS.
- Contrary to Judge Arthur’s claim, the foregoing types of cases either had legitimate claims for relief that could only be granted by or with some action by the USCIS, or, as in the case of TPS and DACA, the individuals were not then removable. Administrative closing of such cases was not an “abuse,” but rather eminently reasonable.
- Moreover, individuals whose applications or petitions ultimately were denied by the USCIS, or who violated the terms under which the case had been closed by failing to appear for a scheduled interview or being picked up for a criminal offense were restored to the Immigration Court’s “active docket” upon motion of the DHS.

There are almost 700,000 cases now on the Immigration Courts’ docket — representing many years of work even if there were no new filings and new judges were added. Moreover, the cases are continuing to be filed in a haphazard manner with neither judgement nor restraint by an irresponsible Administration which is allowing DHS Enforcement to “go Gonzo.” To this existing mess, Sessions and Arthur propose adding hundreds of thousands of previously administratively closed cases, most of which shouldn’t have been on the docket in the first place.

So, if they had their way, we’d be up over one million cases in Immigration Court without any transparent, rational plan for adjudicating them fairly and in conformity with due process at any time in the foreseeable future. Sure sounds like fraud, waste, and abuse of the system by Sessions and DHS to me. All the more reason why we need an independent Article I U.S. Immigration Court removed from the political shenanigans and enforcement bias of Sessions and his DOJ. We need this reform sooner, rather than later!

PWS

03-30-18

THE “BIG NAME” CLIENT NO LAWYER WANTS!

https://www.washingtonpost.com/politics/in-another-blow-to-trumps-efforts-to-combat-russia-probe-digenova-will-no-longer-join-legal-team/2018/03/25/8ac8c8d2-3038-11e8-94fa-32d48460b955_story.html

Josh Dawsey, Carol D. Leonnig and Rosalind S. Helderman report in WashPost:

President Trump’s legal team reversed course Sunday, announcing that a lawyer slated to join the attorneys handling the response to special counsel Robert S. Mueller III’s Russia investigation will not come on board after all, the latest sign of disarray for Trump’s legal strategy.

The development came three days after John Dowd, who had been Trump’s top attorney handling the Russia inquiry, resigned amid strategy disputes with the president.

Trump is now left, at least temporarily, without a traditional criminal defense attorney as Mueller’s team appears to be entering a critical phase in its investigation into Moscow’s interference in the 2016 election and whether the president’s campaign cooperated with Russia in this effort.

Joseph diGenova, the lawyer Trump wanted to replace Dowd, has often stridently defended the president on Fox News Channel and cast the Mueller probe as a conspiracy against him. Trump enjoyed the TV appearances and wanted diGenova on his team even though he did not know him, officials say.

But in a statement on Sunday, a spokesman for Trump’s legal team said both diGenova and his wife, Victoria Toensing, who is also a lawyer, would not be working on the Russia probe because clients they are representing in connection with the investigation posed conflicts of interest.

One of President Trump’s personal attorneys, John Dowd, resigned on March 22, amid a shake-up of the president’s legal team for the Russia investigation. (Jenny Starrs/The Washington Post)

“The President is disappointed that conflicts prevent Joe diGenova and Victoria Toensing from joining his Special Counsel legal team,” Jay Sekulow, counsel to Trump, said in the statement. “However, those conflicts do not prevent them from assisting the President in other legal matters. The President looks forward to working with them.”

[Trump has trouble finding attorneys as top Russia probe lawyer leaves legal team]

The unraveling of the president’s legal team has left his advisers concerned. People familiar with the situation said the president has been counseled by friends that he needs to find a new lawyer to quarterback his team, and efforts are underway by people close to Trump to hire a new lawyer.

Before his resignation Thursday, Dowd had been Trump’s main point of contact with Mueller’s office and had been helping to negotiate the terms for an interview between the president and the special counsel’s team as it examines whether Trump obstructed justice by allegedly seeking to shut down the investigation, which was being conducted by the FBI until Trump fired FBI Director James B. Comey in May. Mueller was then appointed special counsel by Deputy Attorney General Rod J. Rosenstein.

Trump’s legal effort is now led by Sekulow, a conservative attorney and radio host who has concentrated on constitutional issues, and assisted by Ty Cobb, a White House lawyer paid by taxpayers to represent the institution of the presidency rather than Trump personally. Cobb, too, has occasionally drawn the president’s ire, people familiar with the team have said.

A number of white-collar attorneys in Washington said the president has been unable to attract top-flight talent as he looks to overhaul his legal team, with major firms fearful that an affiliation with Trump and the Russia case could impact their ability to attract other clients and hire new lawyers.

Trump has recently been relying on Marc E. Kasowitz, who led his legal team until this summer and has represented Trump in several cases over the years. Kasowitz and Trump clashed over a number of issues, including Kasowitz’s belief that Jared Kushner, the president’s son-in-law and a top White House aide, needed to leave the administration because of the potential legal problems he faced due to the probe and the potential problems they could cause Trump. After Dowd’s hiring, Kasowitz took a diminished role in handling the case.

Ultimately, said one person close to Trump’s legal team, “He’s his own lawyer. Always has been and always will be.”

The person added: “You know what they say about a ‘lawyer’ who has himself as a client.”

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Read the entire article at the link.

“A lawyer who represents him or herself has a fool for a client.”

PWS

03-26-18

INSIDE THE GATHERING STORM: Making America Porny Again: Daniels Says Skill Set From Adult Entertainment Career Gives Her A Leg Up In Dealing With Trump!

https://www.washingtonpost.com/national/on-eve-of-60-minutes-interview-stormy-daniels-says-working-in-porn-helped-prepare-her-for-public-scrutiny/2018/03/24/b1555594-2ea6-11e8-8ad6-fbc50284fce8_story.html

Emma Brown & Frances Stead Sellers report for WashPost:

Stormy Daniels said Saturday that her work in the porn industry has helped her prepare for the international attention she faces on the eve of a much-anticipated television interview about her alleged affair with Donald Trump and the hush money she says she received to keep it quiet.

“Being in the adult industry, I’ve developed a thick skin and maybe a little bit of a dark sense of humor,” she told The Washington Post. “But nothing could truly prepare someone for this.”

Daniels is scheduled to be the star attraction of the CBS newsmagazine “60 Minutes” on Sunday evening, a broadcast that caps a two-week media blitz by her attorney, Michael Avenatti. As Daniels’s image and story have become 24/7 fodder for cable news shows, Avenatti has hinted repeatedly that there are more details yet to come out — including in a tweet Friday suggesting that he has a DVD with new information.

In a brief interview Saturday evening, with Avenatti on the line, Daniels sounded upbeat, even as she acknowledged that the media circus she’s attracted has changed her day-to-day life as a wife, mother and adult-film director.

“Without a doubt it’s cutting into my horse show time,” said Daniels, who is an avid equestrian. “And time with friends.”

. . . .

Daniels told The Post on Saturday that she’s been the target of hatred on social media in recent weeks. But she said she also has been overwhelmed by an outpouring of support. When somebody recently accused her of being a liar on Twitter, she said, she received a flood of messages with hashtags like #Ibelieveyou and #teamstormy.

“I didn’t do this to get any sort of approval from anyone or recognition,” she said. “I simply wanted to tell my personal truth and defend myself.”

. . . .

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Go on over to WashPost at the above link for the complete article by Emma and Frances.

So far, the Stormster has outfoxed the Trumpster at ever turn. Which always brings me back to the same question: How did a smart, multi-talented, personable, on the ball individual like Daniels/Clifford get mixed up with a creep like Trump in the first place?

Tune in to “60 Minutes” tonight and maybe you’ll find out!

PWS

03-25-18

THE LATEST FROM THE HON. JEFFREY CHASE: “Amicus Brief Filed in 10th Cir. Petition for Remotely-Detained Asylum Seeker” — PLUS: A Link To The Actual Brief! — MATUMONA V. SESSIONS, 10th Cir.

https://www.jeffreyschase.com/blog/2018/3/22/amicus-brief-filed-in-10th-cir-petition-for-remotely-detained-asylum-seeker

Mar 22 Amicus Brief Filed in 10th Cir. Petition for Remotely-Detained Asylum Seeker

An amicus brief was filed yesterday by attorneys at the law firm of Sidley Austin on behalf of an asylum seeker from the Democratic Republic of Congo in the case of Matumona v. Sessions. Fleeing for his life and seeking asylum in the U.S., the petitioner upon arrival was detained by DHS in the Cibola County Detention Center in New Mexico.

To call Cibola remotely located is truly an understatement. If you Google Map it, you will see that the detention center is surrounded on the east, south, and west by the stunningly scenic, 263,000 acre El Malpais National Conservation Area. Moving out a bit further, the map shows reservations of the Zuni, Navajo, and Apache nations, beyond which lies the Sevilleta National Wildlife Refuge, and both the Carson and Santa Fe National Forests.

In fairness, Albuquerque is an hour and a half drive away. However, that city has a total of 36 attorneys who are members of the American Immigration Lawyers Association, working for 25 offices or organizations. By comparison, New York City has well over a thousand AILA members (not including many others located in the surrounding suburbs). The problem of representation is compounded by the fact that the petitioner, although detained at Cibola, had his removal hearings in the Immigration Court in Denver, 500 miles away. The National Immigrant Justice Center was able to identify only 21 attorneys in all of New Mexico and Texas who would be willing to represent detainees at Cibola in their removal proceedings. For those requiring pro bono representation, the options are even fewer. According to the latest figures provided by DHS, there were 689 non-citizens being detained in Cibola, and that was less than the facility’s full capacity.

Therefore, close to none of those detained at Cibola are able to exercise their constitutional right to be represented by an attorney, as assigned counsel at government expense does not exist in immigration proceedings. A study by the Vera Institute of Justice found a staggering 1,100 percent increase in successful outcomes when universal representation was made available to the detained population at the Varick Street Detention Facility in New York City. I will note that universal representation was possible there because the Varick Street facility is located in the heart of New York City, within walking distance of a multitude of immigration law offices, law school clinics, and not-for-profit organizations.

Left to represent themselves, asylum seekers detained at Cibola and other similar remote facilities are further hampered in their limited access to phones (which are necessary to contact friends and relatives abroad who might provide evidence to corroborate the asylum claim), and lack of access to the internet (which would allow detainees to research the law and to access and download country condition materials in support of their claims). Additionally, detention centers tend to have inadequate law libraries. Furthermore, detainees are required to complete their applications, conduct research, and file supporting documents in English, which is incredibly difficult for someone such as the petitioner, whose native language is Lingala. EOIR’s own statistics show that only ten percent of respondents in removal proceedings last year had enough of a command of English to allow them to participate in their proceedings in that language. As asylum seekers have often suffered torture or other violence, post-traumatic stress disorder and other physical or psychological remnants of their past mistreatment (which might be further exacerbated by their detention) creates an additional obstacle to self-representation. All of this overlooks the fact that U.S. asylum law is highly complex even for educated English-speakers.

The latest amicus brief raises these and other points on behalf of a group of former immigration judges and BIA Board members. The brief further makes recommendations for practices to be adopted by immigration judges to help mitigate the above-cited obstacles to pro se applicants in pursuing relief. These recommendations include having the immigration judges explain the applicable legal standard (and any bars to relief) to pro se applicants; introducing country condition evidence (as well as making applicants aware of country condition resources available on EOIR’s own Virtual Law Library); and advocating for free, uninterrupted access to telephones for respondents in detention centers.

To my knowledge, our amicus brief filed with the BIA last summer in the U.S. Supreme Courts remand of Negusie v. Holder was the first time that former immigration judges and Board members identified as a group for amicus purposes. The seven of us who participated in that brief doubled to 14 for the next such brief, filed with the Attorney General last month in Matter of Castro-Tum. I see it as a positive development that in the short time since these briefs were filed, we have been called upon to provide our experience in expertise in two more cases, one filed last week in the Ninth Circuit on the issue of representation for children in immigration proceedings (C.J.L.G. v. Sessions), and now in this case filed yesterday in the Tenth Circuit. Hopefully, this outstanding group will continue to contribute to the cause of justice for vulnerable noncitizens in removal proceedings.

And our heartfelt thanks to the dedicated attorneys at Sidley Austin, Jean-Claude Andre and Katelyn Rowe, for drafting the outstanding brief.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

JEFF CHASE

GONZO’S WORLD: McCABE’S ATTORNEYS WONDER WHY HE WASN’T TREATED WITH THE SAME LENIENCY AS GONZO

Click on this picture for the NYT link:

https://www.nytimes.com/2018/03/21/us/politics/sessions-fbi-investigation-perjury.html

Adam Goldman, Katie Benner, Matt Apuzzo report for the NYT:

WASHINGTON — The F.B.I. investigated Attorney General Jeff Sessions for possible perjury last year over congressional testimony in which he said he had no contacts with Russians, according to three people familiar with the case.
In fact, Mr. Sessions later acknowledged, he had personally met the Russian ambassador to the United States during the campaign and was aware that George Papadopoulos, a campaign adviser, had developed Russian ties, too. F.B.I. agents were aware of both inaccuracies in real time. And last March, when Congress asked the F.B.I. to investigate the attorney general, agents began doing so, two of the people said.
Andrew G. McCabe, the F.B.I.’s deputy director at the time, authorized the investigation, the two people said. Mr. McCabe himself was recently fired for showing “lack of candor” in an internal investigation. Mr. Sessions rejected Mr. McCabe’s appeal and fired him hours before his retirement was to take effect, jeopardizing his pension.
The investigation into Mr. Sessions began before Robert S. Mueller III was appointed special counsel to investigate Russia-related matters. Mr. Sessions’s lawyer, Chuck Cooper, said no investigation is being conducted now.
“The special counsel’s office has informed me that after interviewing the attorney general and conducting additional investigation, the attorney general is not under investigation for false statements or perjury in his confirmation hearing testimony and related written submissions to Congress,” Mr. Cooper said in a statement.
The investigation was first reported by ABC News.
Perjury investigations based on congressional referrals are common, and the F.B.I. frequently investigates but seldom charges. But the fact that the attorney general himself was a focus of the Russia investigation, even if only peripherally and temporarily, shows how entangled the Trump administration has become in the case. Mr. Sessions is recused from any aspect of the investigation.
The investigation also adds a new layer to Mr. McCabe’s firing. Mr. McCabe’s lawyers have said that he did not lie and acted quickly to fix any inaccuracies or misunderstandings. Mr. Sessions has offered a similar defense, saying he never intended to mislead Congress.

. . . .

Mr. McCabe’s allies have pointed in recent days to these clarifications and asked why Mr. McCabe did not receive the same benefit of the doubt as the attorney general. But it is impossible to compare the cases because the Justice Department’s inspector general has not released his report explaining his concerns about Mr. McCabe’s candor.

. . . .

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Go to the above link to read the complete article in the NYT.

Double standards are the norm in the Trump Administration and the DOJ. Ethics laws, civil rights laws, environmental laws, asylum laws, conflict of interest laws, civil service protections all are applied selectively to favor “friends of the Administration” and punish “enemies.” Just like in any good Banana Republic like the “B.A.R.!”

PWS

03-23-18

FOUNDERING IN THE STORM: Trump & His Lawyers Deserve Each Other — That’s Why Stormy & Friends Have Been Outmaneuvering “Team Trump!”

https://www.nytimes.com/2018/03/21/opinion/donald-trump-lawyers.html

Gail Collins in the NYT:

“Gee, we’ve been hearing a ton about the turmoil in the president’s legal team. You probably have questions.

Is this something else I have to think about in the middle of the night when I’m staring at the ceiling? Because really, I’ve got enough.

We’re talking about chaos and turnover among the people defending Donald Trump in his multitudinous legal battles. If that’s the kind of thing that keeps you awake at night, it’s time to prioritize. Have a drink and relax.

I need to know immediately if I am paying to protect the president from Stormy Daniels.

No, the people getting taxpayer salaries work in the White House counsel’s office, and their job is to advise the president about what’s legal. Like, whether or not he could sign a bill banning imported scallops. Or, say, sabotage the Russia probe. The current counsel, Don McGahn, reportedly threatened to resign when Trump wanted to can Robert Mueller.

I’ve been looking for somebody to admire in the White House. Should it be Don McGahn?

Up to you. He was formerly a member of the Federal Election Commission who hated campaign-finance reform so much he once tore up the F.E.C. rule book at a meeting and threw the shredded chunks at a Democrat. He lobbied Jeff Sessions not to recuse himself from the Russia investigation. He was an enabler on that immigrant travel ban.

On the other hand, he used to be a guitarist in a rock band.

Everybody used to be a guitarist in a rock band. But about the president’s team: I know a lot of recent law school graduates who are desperate for jobs. They’re cleaning tables at Arby’s. Should I tell them there’s a lot of turnover and they ought to send in a résumé?

Have they ever been on Fox News? It definitely helps if you were a guest on Fox a lot.

I don’t understand how these busy lawyers have so much time to appear on TV.

Totally part of the job. Trump just hired Joe diGenova, who’s currently famous for having argued on Fox that a secret cabal of F.B.I. agents created the whole Russia investigation to “frame Donald Trump with a falsely created crime.”

O.K., I’ll ask the people who want to get lawyer gigs if they’d mind going on right-wing radio and saying something about how Trump is a victim of the deep state. Is the pay good?

On the government side, $179,700 is the top.

I think my friends could handle that.

There’s a guy named Ty Cobb who sort of coordinates between the president’s personal lawyers and the government on all the Russia stuff. It’s on the public tab, and to take it, he left a job that paid at least a million dollars a year.

Just tell me if he’s related to the baseball player.

I think vaguely. Anyhow, he’s gotten in trouble for talking about office politics — loudly — in a public restaurant. So I guess value depends on your perspective.

Meanwhile, the president’s lawyer John Dowd just made a fuss when he called for an end to the special counsel investigation. Which he said was Trump’s idea. Then he denied it. But it probably was.

Trump must be a difficult client, right?

Well, Michael Cohen, the Trump lawyer handling the Stormy Daniels case, said he used his very own home equity line of credit to raise the $130,000 he gave her in hush money.

On his own house? What kind of lawyer does that?

I guess a super-dedicated one. Unless somehow the president or his friends managed to funnel the cash back in a manner so subtle it will never be revealed. Until the next leak.

I can see why there’s so much turnover.

Yet sometimes it feels as if nobody ever really goes away. One of the early Trump lawyers, Marc Kasowitz, seemed to be getting crazier and crazier last summer. When a man wrote an email that he should resign, Kasowitz came back with a message that said, in part: “I’m Jewish. I presume you are, too. … I already know where you live. I’m on to you. You might as well call me. You will see me. I promise. Bro.”

For a while it looked as if Kasowitz was fading away. But now he’s back! In court arguing that as a sitting president, Trump cannot be sued by a woman who says he molested her during his “Apprentice” days.

That would be Stormy Daniels?

Oh gosh no. This is Summer Zervos, who says Trump came on with an unnerving series of gropes, and then when she resisted claimed “that he did not believe that she had ever known love or been in love.”

The interesting thing about this one is that Zervos is only suing Trump for $2,914 for defaming her when he denied the story. Kasowitz has so far been unsuccessful in arguing that the president’s denial is “political speech” protected by the First Amendment.

So the worse the team gets, the better for the country?

Right now, Stormy’s lawyer is making mincemeat of Trump’s legal representation. For the sake of argument, let’s say the special prosecutor has assembled at least as strong a team as the stripper did.

Could be an, um, stormy summer.”

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

Sure enough, John Dowd, one of Trump’s personal lawyers on the “Russia Team” resigned on Thursday!

PWS

03-23-18

HON. JEFFREY CHASE RETURNS WITH MORE ANALYSIS OF RETIRED JUDGES’ AMICUS BRIEF IN C.J.L.G. V. SESSIONS

https://www.jeffreyschase.com/blog/2018/3/21/amicus-brief-filed-in-cjlg-v-sessions

Mar 21 Amicus Brief Filed in C.J.L.G. v. Sessions

On March 15, lawyers with the firm of Simpson, Thacher & Bartlett filed an amicus brief with the U.S. Court of Appeals for the Ninth Circuit on behalf of 11 former immigration judges and BIA Board members in the case of C.J.L.G. v. Sessions. The case involves a child from Honduras who appeared in immigration court accompanied only by his mother. As the respondent could not obtain a lawyer in the time afforded, the immigration judge went forward with the hearing, informing the mother that she would “represent” her son.

The respondent is an asylum applicant whose gang-related claim rested on his ability to precisely delineate a particular social group pursuant to requirements complex enough to stump most attorneys. As his mother lacked any legal training, his hearing did not go well. On appeal, the BIA affirmed the IJ’s denial of the claim. In its decision, the BIA determined that the respondent did not suffer past persecution when at the age of 13, members of MS-13, a brutal, multinational gang, threatened to kill him, his mother, and his aunt if he refused to join their ranks, put a gun to his head to emphasize their point, and told him that he had one day to decide. The BIA also found the hearing before the IJ to have been fair, and that the respondent was not denied due process because the immigration laws do not require the appointment of counsel in removal proceedings.

Hon. Dana Marks, an outstanding jurist and president emeritus of the National Association of Immigration Judges, often states that immigration judges hear “death penalty cases under traffic court conditions.” What she means by this is that a genuine asylum seeker who is denied relief and deported faces the risk of death in the country from which he or she fled. Yet the conditions under which such life-or-death claims are heard are inadequate; the limited time and resources afforded to the judges hearing such claims are better suited for a court hearing much lower stakes matters such as traffic tickets. Courts hearing cases involving matters of life and liberty have a higher obligation to afford due process. First and foremost, a defendant facing criminal charges in a state or federal court is entitled to assigned counsel. However, although the stakes may be higher in an asylum case, respondents in immigration court have no such entitlement. Although the respondent in C.J.L.G. may face death if deported, having a judge determine it was fine to proceed, and telling his mother that she would represent him sounds like something that might be appropriate in traffic court.

A three-judge panel of the Ninth Circuit denied the respondent’s petition for review. Interestingly, the respondent was found credible in his recounting of the death threats he suffered and as to his fear of return; the court accepted the statistics provided by respondent’s counsel that unrepresented respondents succeed on their claims only 10 percent of the time, whereas as represented minors enjoy a 47 percent success rate. The court also assumed that the respondent qualifies as an indigent (due to his mother’s inability to afford private counsel), and that ordering him removed would send him “back to a hostile environment where he has faced death threats in the past implicates his freedom.” The court further acknowledged that the immigration laws and regulations include assuring minors “the right to a ‘full and fair hearing,’ which includes the ‘opportunity to present evidence and testimony on one’s behalf,’ cross-examine witnesses, and examine and object to adverse evidence.” It would be difficult to argue that an unrepresented minor is capable of exercising such rights.

In spite of this, the court denied the petition, determining that there was no Constitutional right to assigned counsel at government expense to minors in removal proceedings. The court further found that the respondent had not demonstrated prejudice, as he had not established a nexus to a protected ground as required to establish eligibility.

The ACLU has filed a petition for the Ninth Circuit to rehear the case en banc. It is in support of this latest petition that the latest amicus brief was filed. I am one of the former IJs included in the brief; I join my colleagues in being proud to assist in such a noble effort as securing assigned counsel for immigrant children facing the legal complexities and dire consequences of immigration proceedings. In a nutshell, the brief argues that the efforts of an immigration judge to provide a fair hearing is no substitute for counsel. Immigration judges can only do so much faced with “overburdened and growing dockets, the complexity of immigration law, and, as Department of Justice (DOJ) employees, the constraints of administrative policy.”

The problem is compounded in cases in which the asylum claim is based on membership in a particular social group. The BIA has recently held that an asylum applicant must specifically delineate such group, a requirement that is clearly beyond the ability of a child (or his or her mother) to do. As the brief points out, in this case, the respondent “ and his mother showed no understanding of why a gang-related threat alone would not warrant asylum, but the IJ’s cursory inquiry ended without seeking the motivation for the threat.”

Of course, the entire issue could be resolved by the Department of Justice choosing to do what is right by agreeing to provide assigned counsel at government expense to this most vulnerable group.

Heartfelt thanks to partner Harrison J. “Buzz” Frahn and associate Lee Brand of the law firm of Simpson Thacher & Bartlett for their dedication and effort in drafting the excellent brief.

Copyright 2018 Jeffrey S. Chase. All rights reserved.

JEFF CHASE
Mar 10 The AG’s Strange Decision in Matter of E-F-H-L-
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Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First. He is a past recipient of AILA’s annual Pro Bono Award, and previously chaired AILA’s Asylum Reform Task Force.

Blog Archive Contact

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As pointed out by Jeffrey, this is an incredibly important case for Due Process under our Constitution! Let’s hope that the en banc Ninth gives it a close look.

PWS

03-22-18

ANOTHER WASHPOST LEAD EDITORIAL RIPS CRUEL, INHUMANE, ADMINISTRATION POLICIES ON SEPARATING CHILDREN – In Plain Terms, Our Government Is Engaging in Child Abuse!

https://www.washingtonpost.com/opinions/dhs-keeps-separating-kids-from-their-parents–but-officials-wont-say-why-or-how-often/2018/03/20/0c7b3452-2bb4-11e8-8ad6-fbc50284fce8_story.html?utm_term=.8fe0d0d7b420

DHS keeps separating kids from their parents — but officials won’t say why or how often

Immigration and Customs Enforcement headquarters in Washington. (Salwan Georges/The Washington Post)

By Editorial Board March 20 at 7:31 PM

LAST FRIDAY night, a 7-year-old Congolese girl was reunited with her mother in Chicago, four months after immigration agents of the Department of Homeland Security separated them for no defensible reason. When the little girl, known in court filings as S.S., was delivered by a case worker to her mom, the two collapsed to the floor, clutching each other and sobbing. According to the mother’s lawyer, who was in the room, S.S., overwhelmed, cried for the longest time.

That sounds like a happy ending to a horrific story. In fact, according to immigrant advocates, such separations are happening with increasingly frequency — with no credible justification.

In the case of S.S. and her mother, known in court filings as Ms. L., the trauma visited on a little girl — wrenched from her mother, who was detained in San Diego, and flown nearly 2,000 miles to Chicago — was gratuitous. A U.S. official who interviewed Ms. L. after she crossed the border into California determined she had a reasonable asylum claim based on fear for her life in her native Congo. Despite that, mother and daughter were torn apart on the say-so of an immigration agent, and without explanation.

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A DHS spokesman, Tyler Houlton , says separating children from their parents is justified when paternity or maternity is in doubt, or when it is in a child’s best interest. However, in court filings, officials present no cause for doubt about Ms. L.’s maternity, nor evidence that it was in S.S.’s “best interest” to be taken from her mother last November, when she was 6 years old.

Rather, in court filings, an official from Immigration and Customs Enforcement, a DHS agency, lists some documentary discrepancies on Ms. L.’s part, in which officials in Angola, Panama and Colombia recorded different versions of her name. Never mind the translation problems she may have encountered in Latin America as a speaker of Lingala, a language spoken only in central Africa.

Even if Ms. L. fudged her identity, how would that justify taking away her child? And if there were doubts about Ms. L.’s maternity, why didn’t ICE request a DNA test at the outset, before sundering mother and child? When a DNA test was finally done — four months later — it immediately established Ms. L.’s maternity.

Immigrant advocates say DHS has separated children from immigrant parents scores of times in recent months, perhaps to deter other asylum seekers by trying to convince them the United States is even more cruel than their native countries. Officials at DHS have floated that idea publicly in the past year. They insist it is not their policy. However, they also have declined to provide statistics showing the frequency of separations.

Responding to a class-action lawsuit filed by the American Civil Liberties Union on behalf of parents separated from their children, ICE insists it has done nothing so outrageous that it “shocks the conscience” — a Supreme Court standard for measuring the denial of due-process rights.

Here’s a question for Homeland Security Secretary Kirstjen Nielsen: If it does not “shock the conscience” to traumatize a little girl by removing her from her mother for four months in a land where she knows no one and speaks no English, what does “shock the conscience”?

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Stop the Trump Administration’s program of turning America into a reviled human rights abuser! What about “Gonzo Apocalyto’s” policies of turning our Immigration Courts into “enforcement deterrents” rather than protectors of fairness and Due Process?

Join the New Due Process Army now! Resist in the “real’ courts. Vote Trump, his abusers, and his enablers out of office!

Harm to the most vulnerable among us is harm to all of us. Due Process Forever!

PWS

03-21-18

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