"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
It is not news that the Republican Party has a stagnant governing agenda cobbled together from the long-discredited dogmas and shibboleths of the conservative movement. “The current iteration of the G.O.P. is indifferent to the substance of government,” Steve Benen, a political writer and producer for The Rachel Maddow Show on MSNBC, writes in “The Impostors: How Republicans Quit Governing and Seized American Politics”:
It is disdainful of expertise and analysis. It is hostile toward evidence and arithmetic. It is tethered to few, if any, meaningful policy preferences. It does not know, and does not care, about how competing proposals should be crafted, scrutinized or implemented.
What is news is the extent to which the Republican Party has embraced the trappings of its leader, which is to say, the trappings of a right-wing cable news network: a nonstop parade of conspiracy, demagogy and grievance, in service to a cult of personality, all for the sake of a politics of plunder, theft and extraction.
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Read the rest of Jamelle’s op-ed at the link.
Pretty good explanation of The Party of Trump (formerly known as “The Party of Lincoln”).
My question is why the so-called “mainstream media” (excluding Jamelle and a few others) handles with “kid gloves” folks like Nikki Haley, Tim Scott, and Melania, who go on national TV and present knowingly bogus, totally disingenuous, fabricated portraits of Trump as a benign presence in U.S. politics. In a vain, continuing search for “normalization” of overt 21st century Jim Crow nationalist fascism, the “mainstreams” appear ready to credit speaking in complete, largely grammatical, sentences in the English language and not screaming racist tropes or absurdist internet conspiracy theories as all that is necessary to be considered “credible” and a “moderating force” in today’s “Trumpized” GOP!
The disingenuous treatment by the “mainstreams” of dishonest attempts to “soften” Trump’s true “Mini-Mussolini” persona as election-season gimmick is a gross dis-service to the public welfare and the abdication of the duty of courageous independent journalism to provide critical coverage — not just regurgitate RNC propaganda!
Why are “the mainstreams” rolling over for the RNC?
This November, vote like your life and the future of the world depend on it! Because they do!
The Trump administration announced on Tuesday that it will continue to defy a federal court order compelling the full restoration of DACA, the Obama-era program that allows 700,000 immigrants to live and work in the United States legally. By doing so, the administration has chosen to flout a decision by the Supreme Court, effectively rejecting the judiciary’s authority to say what the law is.
Donald Trump first attempted to rescind the Deferred Action for Childhood Arrivals program in September 2017, a move that would’ve stripped its beneficiaries of work permits and subjected them to deportation. But his administration continually cut corners, failing to explain the basis for its decision and refusing to consider the impact of DACA repeal on immigrants, their communities, and their employers (including the U.S. Army). This June, the Supreme Court ruled that the administration’s actions were “arbitrary and capricious” under federal law and therefore “set aside” DACA repeal.
To implement that decision, U.S. District Judge Paul Grimm compelled the administration to restore DACA to its pre-repeal condition on July 17. Grimm’s order required the Department of Homeland Security to let DACA beneficiaries renew their status for two years, accept new applicants, and restore “advance parole,” which permits travel outside the country. But DHS did not do that. Instead, the agency maintained that it would reject new DACA applicants. It also declined to accept DACA renewals or reinstate advance parole.
At a hearing Friday, Grimm tore into Justice Department attorneys for flouting his order. The government’s actions, he explained, created “a feeling and a belief that the agency is disregarding binding decisions” from the Supreme Court. DOJ attorneys insisted that DACA applications were merely “on hold,” or “placed into a bucket,” while the administration decided how to proceed. But, as Grimm retorted, “it is a distinction without a difference to say that this application has not been denied, it has been received and it has been put in a bucket.” The judge once again directed DHS to comply with the law by accepting new applicants and processing renewals.
Incredibly, the agency has decided to disobey this order, as well. On Tuesday, acting DHS Secretary Chad Wolf declared that it would not accept new applications and would only grant one-year extensions to current beneficiaries “on a case by case basis.” This tactic will make it easier for Trump to deport DACA beneficiaries if he wins reelection, since their status will expire sooner. The agency will also deny advance parole “absent exceptional circumstances.” This new policy is nothing less than brazen defiance of a federal court ruling. Grimm, and the Supreme Court itself, ordered DACA’s full resuscitation, which requires the acceptance of new applicants and the conferral of two-year renewals. There is simply no legal basis for DHS’s zombie version of the program.
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Read the rest of the article at the link.
Equal justice for all and the easing of racial tensions in America will not happen until we get an Executive, Legislators, and Judges with the courage and integrity to make it happen. We’re a long way from that now.
The timid approach of the Legislative and Judicial Branches to Trump’s and his cronies’ almost daily abuses of our legal system have sent the message that the law is largely meaningless in the age of Trump, except if you are a person of color, asylum seeker, immigrant, or, perish the thought, all three, in which case the law only applies to you when the effects are adverse to your interests but not to protect you. On the other hand, if you are a Trump official or a DOJ lawyer, compliance with the law is at most a suggestion and ignoring it has few meaningful consequences.
The Trump regime has exposed the deep flaws and weaknesses in our democratic institutions. We need better public officials in all three branches of the Government. Better judges will take awhile because of life tenure. But, a better Executive, Legislature, and public servants can be achieved with a “big push” in November to expel the malicious incompetents at all levels. And, that will set the stage for eventually achieving a better Federal Judiciary that will stand up to tyranny and lawlessness and show that “nobody is above the law” is more than just a feckless catchphrase.
Due Process Forever! A Feckless Legislature & Federal Judiciary, Never!
The Supreme Court Doesn’t See Asylum-Seekers as People — One week after saving DACA, the high court proved that its sympathies for immigrants seeking better lives are limited.
Last Thursday, the Supreme Court saved more than 700,000 immigrants from the Trump administration’s nativist buzz saw. The court ensured that these immigrants, who were brought to the United States by their undocumented parents as children, would continue to be protected by an Obama administration policy called Deferred Action for Childhood Arrivals, sparing them from deportation to countries many could not even remember. The court split 5–4, with Chief Justice John Roberts throwing his lot in with the liberals to find that Donald Trump’s rescission of DACA had been unlawful—largely because it had been carelessly effectuated, defended pretextually, but also because hundreds of thousands of young people had altered their lives in reliance on the promise that they would be immune from deportation.
In a key section of the majority opinion, Roberts highlighted the humanity of these young undocumented people, as was the hopes and dreams of their families: “Since 2012, DACA recipients have enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance” on DACA, Roberts wrote, quoting from briefs in the case. “The consequences of the rescission … would ‘radiate outward’ to DACA recipients’ families, including their 200,000 U.S.-citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them.” The chief justice evinced frustration that the Trump administration seemingly took none of those very human interests into account.
One week later, on Thursday morning, the high court proved that its sympathies for immigrants seeking better lives are limited. In a 7–2 ruling, the justices approved the Trump administration’s draconian interpretation of a federal law that limits courts’ ability to review deportation orders. This time around, the court did not note immigrants’ contributions to the nation or acknowledge their humanity in any way. Having last week treated one class of immigrants like actual people, the court on Thursday pivoted back to callous cruelty. All of the chief justice’s kind words about DACA recipients seemingly do not apply to immigrants who—according to the executive branch—do not deserve asylum.
Thursday’s case, Department of Homeland Security v. Thuraissigiam, involves an asylum-seeker from Sri Lanka named Vijayakumar Thuraissigiam who faces likely death if he is deported because he is Tamil. Thuraissigiam was apprehended by the U.S. Border Patrol while trying to cross at the southern border in 2017. After an asylum officer and immigration judge rejected his claims, Thuraissigiam was slated for “expedited removal.” Federal law bars courts from reviewing that deportation order. But the 9th U.S. Circuit Court of Appeals found the law unconstitutional as applied to Thuraissigiam under the Constitution’s suspension clause, which limits the government’s ability to restrict habeas corpus—the centuries-old right to contest detention before a judge.
At the Trump administration’s request, the Supreme Court reversed the 9th Circuit, with Justice Samuel Alito writing a maximalist majority opinion for the five conservatives and Justices Stephen Breyer and Ruth Bader Ginsburg proffering a narrower concurrence. Justice Sonia Sotomayor penned a lengthy, vivid dissent joined by Justice Elena Kagan that accused the majority of flouting more than a century of precedent and “purg[ing] an entire class of legal challenges to executive detention.” (In his own opinion, Alito dismissed Sotomayor’s criticisms as mere “rhetoric.”)
This outcome strips due process from immigrants seeking asylum, who now have even fewer rights to a fair adjudicatory process under an expedited system that already afforded them minimal protections. It will also embolden the Trump administration to speed up deportations for thousands of people with no judicial oversight. Under this now court-approved system, immigrants fleeing their home country must undergo a “credible fear” interview, at which they must explain to a federal officer why they qualify for asylum. (The Trump administration has allowed Customs and Border Protection agents—not trained asylum officers—to conduct credible fear interviews.) If the officer finds no “credible fear of persecution,” their supervisor reviews the determination, as does an immigration judge (who is not a traditional judge but rather an employee of the executive branch appointed by the attorney general). If these individuals find no credible fear, the immigrant is thrown into “expedited removal”—that is, swiftly deported in a matter of weeks. They may not contest the government’s “credible fear” determination before a federal court. It is this extreme rule that Thuraissigiam challenged as a violation of habeas corpus and due process.
Alito breezily dismissed Thuraissigiam’s individual claims by stripping a broad swath of constitutional rights from unauthorized immigrants. First, he declared that habeas corpus does not protect an immigrant’s ability to fight illegal deportation orders. Sotomayor fiercely contested this claim, citing an “entrenched line of cases” demonstrating that habeas has long protected the right of individuals—including immigrants—to challenge illegal executive actions in court. Second, Alito held that unauthorized immigrants who are already physically present in the United States have not actually “entered the country.” Thus, they have no due process right to challenge the government’s asylum determination. Sotomayor noted that this holding departs from more than a century of precedent by imposing distinctions drawn by modern immigration laws on the ancient guarantee of due process.
Alito not only waved away these galling consequences; he seemed to laugh at them.
The upshot of the decision will mean almost certain death for Thuraissigiam and others like him. Thuraissigiam faced brutal persecution in Sri Lanka, a fact Alito did not seem to understand at oral arguments. Various officials in the executive branch shrugged off that persecution. Thuraissigiam just wants an opportunity to prove to a federal judge that these officials violated the law by denying his asylum claim. Now, thanks to the Supreme Court, he cannot. Nor can the many immigrants thrown into expedited removal by the Trump administration, which has used the process as a tool to speed up deportations across the country. Just two days ago, a federal appeals court cleared the way for the government to expand expedited removal beyond immigrants intercepted near the border to those apprehended anywhere in the nation. The administration has shown little interest in carefully considering whom it’s deporting; now many of those decisions will be rubber-stamped by executive officers and left unscrutinized by the federal judiciary.
Alito not only waved away these galling consequences; he seemed to laugh at them. Not for a moment does he appear to believe that asylum-seekers may be genuinely in fear for their lives. Among the many bon mots dropped by Alito in his opinion, he wrote: “While [Thuraissigiam] does not claim an entitlement to release, the Government is happy to release him—provided the release occurs in the cabin of a plane bound for Sri Lanka.” Given that Thuraissigiam claims he will likely be tortured to death if he is sent back to Sri Lanka, it’s not clear that line means what he thinks it does. Throughout the opinion Alito refers to Thuraissigiam as either “alien” or “respondent” and appears simply incapable of imagining that his claims are truthful.
It’s easy to miss the massive erosion of asylum-seekers’ rights in the victory last week around the triumph of DACA. But in some ways, it’s the most American outcome in the world to view DACA beneficiaries as more human because they have gone to school here and birthed children here, while scoffing at asylum-seekers, who, as part of a lengthy tradition under both constitutional and international law, simply ask the U.S. government to save their lives. Roberts, who seemed so attuned to the hardships of DACA recipients, joined Alito’s merciless opinion in full; in fact, the chief justice assigned the opinion to Alito, who has become the court’s staunchestcrusaderagainst immigrants’ rights.
The court’s split shows that a majority of justices think immigrants like Thuraissigiam are not the productive young people of the DACA case, with financial and familial ties to all that makes America great, but rather faceless masses cynically manipulating America’s generous asylum policy and overwhelming its immigration system. They believe these people do not deserve an iota of sympathy, let alone due process. That is already how many border agents viewed these immigrants: not as humans with rights, but as fraudulent parasites. The Supreme Court has now transformed that vision into law—and, in the process, allowed the executive to send more persecuted people to their deaths without even a meaningful day in court.
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Imposing death sentences without fair hearings, or indeed any real hearings at all, is bad stuff. And, Justices who justify this behavior should not be on the bench at all.
Sadly, that applies just as much to the two so-called “liberal icons” who voted with Alito and four other sneering colleagues who seemed to actually glory in being able to dehumanize another soul with the audacity to fight for his life. Frankly, this stuff is right out of the Third Reich. Read a few of the German Judiciary’s opinions of the time and see how quickly, easily, naturally, and often happily Reich jurists “justified the unjustifiable and the unthinkable.” I have no doubt that Sam Alito and some of his colleagues would have fit right in. How has American Justice gotten to this incredible “low point.”
I don’t know exactly what we can do about life-tenured judges who are unqualified for their jobs. Life tenure is there for a reason — to insure judicial independence overall, even in particular instances like this where it clearly does no such thing. And, with 200+ largely unqualified Trump appointees now on the Federal Bench, essentially “young deadwood,” the problem will get worse before it gets better.
The first step is to replace Trump and oust the GOP from the Senate. Then, methodically appoint only judges committed to equal justice for all, willing to stand up against abuses of justice by both the Executive and the Congress, and whose life experiences and legal work show an unswerving commitment to human rights and the rights of migrants to be treated as persons (fellow humans) under law.
It’s a national disgrace that with immigration and human rights the major issues clogging today’s Federal Courts, few, if any, Federal Judges have any experience representing asylum seekers in the Star Chambers known as “Immigration Courts” nor have they personally experienced the type of dehumanization, racism, torture, grotesque abuses, and unnecessary cruelty that they so unnecessarily, uncourageously, and glibly inflict on migrants and asylum seekers who indeed are the most vulnerable among us. If immigration and human rights are the pivotal issues of American justice, then we need to get Justices and judges on the bench who understand what they are doing and the dire human consequences of their actions (or inactions).
The situation of today’s asylum seekers of color is not much different from that of others Americans of color whose legal and Constitutional rights were denied, and whose humanity was intentionally degraded, by a corrupt judiciary and a legal system that intentionally failed to make Constitutonal equal justice for all a reality rather than a cruel fiction .
A nation that doesn’t demand better judges will never rise above its own mistakes and failures. And a Federal Judiciary that so obviously and intentionally lacks diversity and humanity can never properly serve the national interest.
Ditch the clueless, largely white, male “dudocracy” with their Ivy League degrees and not much else to offer. Appoint judges schooled in real life, who know what the law means in human terms and will use it to solve, rather than aggravate, inflame, or avoid, human problems! There are tons of such lawyers out there. We all know them. We need them to move from the “bullpen” to the Federal Benches, before it’s too late for everyone in America!
Folks, what we have here is “judicially-approved murder without trial.” It could also be called “extrajudicial killing.” Ugly, but brutally true! “The upshot of the decision will mean almost certain death for Thuraissigiam and others like him.” We should understand what’s happening, even if seven disingenuous and unqualified members of our highest court claim not to know or care what they are doing and refuse to acknowledge the real life consequences of their deep, dark, and disturbing intellectual corruption and their studied lack of human compassion, empathy, and decency.
Vote ‘Em Out, Vote ‘Em Out! It’s a Start On A Better Court, For America & For Humanity!
Undeterred by this week’s Supreme Court ruling, President Donald Trump said Friday he will renew his effort to end legal protections for hundreds of thousands of immigrants brought to the United States as children.
Trump denounced the high court’s ruling that the administration improperly ended the Deferred Action for Childhood Arrivals program in 2017. Splitting with Trump and judicial conservatives, Chief Justice John Roberts joined the four liberal justices in the 5-4 vote Thursday.
Through executive action, Trump could still take away the ability for 650,000 young immigrants to live and work legally in the United States. But with no legislative answer in Congress in sight, uncertainty continues for many immigrants who know of no other home except America.
In a tweet Friday morning, Trump said, “The Supreme Court asked us to resubmit on DACA, nothing was lost or won. They “punted”, much like in a football game (where hopefully they would stand for our great American Flag). We will be submitting enhanced papers shortly.”
Ken Cuccinelli, acting head of U.S. Citizenship and Immigration Services, said Friday that the administration was starting over. “We’re going to move as quickly as we can to put options in front of the president,” but those are executive branch options, he told “Fox & Friends.”
“That still leaves open the appropriate solution which the Supreme Court mentioned and that is that Congress step up to the plate,” he said.
Cuccinelli said Sen. Dick Durbin, D-Ill., made some positive comments in that direction on Thursday so the administration thinks it’s possible for a constructive conversation with Congress. But experts say there isn’t enough time to knock down the 8-year-old program before the November election and doubt the government would try because DACA is popular with voters.
Trump’s tweet on Friday was less confrontational than the one on Thursday when he slammed the high court ruling. “These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives.” He apparently was referring to DACA and an earlier ruling this week where the court said it’s illegal to fire people because they are gay or transgender.
Activists are vowing to keep fighting for a long-term solution for young immigrants whose parents brought them to the United States when they were children. They not only face a White House that’s prioritized immigration restrictions but a divided Congress that is not expected to pass legislation giving them a path to citizenship anytime soon.
The court decision still elicited surprise, joy and some apprehension from immigrants and advocates who know it’s only a temporary solution.
“This is a huge victory for us,” Diana Rodriguez, a 22-year-old DACA recipient, said through tears.
Rodriguez, who works with the New York Immigration Coalition, said she hasn’t been to Mexico since she was brought to the U.S. at age 2. The ruling means young immigrantscan keep working, providing for their families and making “a difference in this country,” she said.
But the work isn’t over, Rodriguez said: “We can’t stop right now, we have to continue fighting.”
Congressional Democrats, meanwhile, appeared satisfied to let the court’s decision stand as the law of the land for now.
While Republicans protested that now, if ever, was the time for Congress to clarify the immigration system, House Speaker Nancy Pelosi made it clear that Democrats were done with their legislation before the summer break and had little interest in meeting GOP demands to fund Trump’s long-promised border wall as part of any comprehensive immigration overhaul.
“There isn’t anybody in the immigration community that wants us to trade a wall for immigration,” she said.
Pelosi was reminded that Trump has said he wants immigration reform. “We’ll see,” she said, noting how few days remain on the legislative calendar. “I don’t know what the president meant — maybe he doesn’t either.”
Democratic presidential contender Joe Biden said that if elected, he would send lawmakers proposed legislation on his first day in office to make DACA protections permanent.
There will be no racial reconciliation, equality, and equilibrium in the U.S., nor will our nation reach its full potential, until Trump and the GOP are permanently expelled from power the power they have so grotesquely and dishonestly abused.
This November, vote like your life depends on it! Because it does!
“Hernandez petitions for review on multiple grounds, but we need decide only one. Concluding that the IJ denied Hernandez her statutory right to be represented by the counsel of her choice, we grant the petition, vacate the BIA’s decision, and remand for further proceedings consistent with this decision.”
[Hats way off to Sang Yeob Kim and Eloa J. Celedon, with whom Harvey Kaplan, Gilles Bissonnette, Henry Klementowicz, the American Civil Liberties Union of New Hampshire, and Celedon Law were on brief, for petitioner; Deirdre M. Giblin, Iris Gomez, and Massachusetts Law Reform Institute on brief for Massachusetts Law Reform Institute, American Immigration Lawyers Association New England Chapter, Boston College Law School Immigration Clinic, Boston University Immigrants’ Rights and Human Trafficking Program, Catholic Charities of the Archdiocese of Boston, Catholic Social Services of Fall River, Central West Justice Center, DeNovo Center for Justice and Healing, Greater Boston Legal Services, Immigrant Legal Advocacy Project, Justice Center of Southeast Massachusetts, MetroWest Legal Services, The Northeast Justice Center, Political Asylum/Immigration Representation Project, and University of Massachusetts Dartmouth Immigration Law Clinic, amici curiae!]
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Read the full decision and you will see how under Barr’s White Nationalist “leadership,” the EOIR ignores not only constitutionally required due process, the statutory right to counsel, but also prior BIA precedent to screw (largely Latino) asylum seekers. The First Circuit recognizes the correct standards. But, I’ll wager they aren’t being applied in most of the unrepresented cases now being railroaded through the Immigration Courts. Nobody in charge is doing anything to stop the systemic, invidiously racially motivated unfairness.
We’re still a long way from enforcing the Constitution and eliminating unconstitutional racism, including specifically the Government’s vile attacks on Latino and other asylum applicants.
While thankfully Chief Justice Roberts saved lives and futures today, he and seven of his colleagues also ignored the facts to endorse the Trump regime’s institutional racism targeting Latinos with various assaults on immigration laws, due process, and human decency. His protestations to the contrary as he and his colleagues brushed off the obvious Equal Protection violations that would have been proved fail the “straight face test.”https://slate.com/news-and-politics/2020/06/john-roberts-daca-racist-policies-equal-protection.html.
Indeed, that Roberts found that the Administration acted without rational explanations as required by the APA in and of itself basically shows that there were “other motivations” for the actions. I’m not sure the “prime movers” behind the “Screw Dreamers” policy even know what the APA is. Sessions’s “legal analysis” that was nothing of the sort — as observed by some lower courts — could have been written by a sixth grader.
Sadly, only Justice Sonia Sotomayor had the intellectual honesty and courage to speak truth on the continuing racism of Trump and the GOP and how it is being enabled by her colleagues on the Supremes.
Whatever progress members of the the public might think they are making on achieving racial justice isn’t reflected in the continuing insultingly intellectually dishonest actions of many of those who lead and control our Government. They obviously believe that with a few cosmetic (at best) changes this moment will pass, as have other efforts to make the Constitution a reality for all in America.
Then they can resume the same abuses and disingenuous claims that institutional racism no longer exists in a system where it is deeply and intentionally ingrained. But, the folks who are victimized by it might continue to differ with this bogus view. Since, as we have recently learned, they are often the ones who have and continue to prop up our society, that’s going to be a long-term problem for future generations.
We’ll never get to equality without regime change. Nor will be get to a better Federal Judiciary who will make the Constitutional guarantee of elimination of racial injustice a priority and a reality without an Executive, a Senate, and more judges who really believe in it. Until then, those who believe in racial justice will have to continue the battle in the trenches. Denial of the reality of racism in America won’t change it, no matter what the majority of the Supremes might claim to think.
If we’re going to speak of rioting protesters, then we need to speak of rioting police as well. No, they aren’t destroying property. But it is clear from news coverage, as well as countless videos taken by protesters and bystanders, that many officers are using often indiscriminate violence against people — against anyone, including the peaceful majority of demonstrators, who happens to be in the streets.
Rioting police have driven vehicles into crowds, reproducing the assault that killed Heather Heyer in Charlottesville, Va., in 2017. They have surrounded a car, smashed the windows, tazed the occupants and dragged them out onto the ground. Clad in paramilitary gear, they have attacked elderly bystanders, pepper-sprayed cooperative protesters and shot “nonlethal” rounds directly at reporters, causing serious injuries. In Austin, Texas, a 20-year-old man is in critical condition after being shot in the head with a “less-lethal” round. Across the country, rioting police are using tear gas in quantities that threaten the health and safety of demonstrators, especially in the midst of a respiratory disease pandemic.
None of this quells disorder. Everything from the militaristic posture to the attacks themselves does more to inflame and agitate protesters than it does to calm the situation and bring order to the streets. In effect, rioting police have done as much to stoke unrest and destabilize the situation as those responsible for damaged buildings and burning cars. But where rioting protesters can be held to account for destruction and violence, rioting police have the imprimatur of the state.
What we’ve seen from rioting police, in other words, is an assertion of power and impunity. In the face of mass anger over police brutality, they’ve effectively said So what? In the face of demands for change and reform — in short, in the face of accountability to the public they’re supposed to serve — they’ve bucked their more conciliatory colleagues with a firm No. In which case, if we want to understand the behavior of the past two weeks, we can’t just treat it as an explosion of wanton violence; we have to treat it as an attack on civil society and democratic accountability, one rooted in a dispute over who has the right to hold the police to account.
Jamelle Bouie’s Newsletter: Discover overlooked writing from around the internet, and get exclusive thoughts, photos and reading recommendations from Jamelle.
African-American observers have never had any illusions about who the police are meant to serve. The police, James Baldwin wrote in his 1960 essay on discontent and unrest in Harlem, “represent the force of the white world, and that world’s real intentions are simply for that world’s criminal profit and ease, to keep the black man corralled up here in his place.” This wasn’t because each individual officer was a bad person, but because he was fundamentally separate from the black community as a matter of history and culture. “None of the police commissioner’s men, even with the best will in the world, have any way of understanding the lives led by the people they swagger about in twos and threes controlling.”
Go back to the beginning of the 20th century, during America’s first age of progressive reform, as the historian Khalil Gibran Muhammad does in “The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America,” and you’ll find activists describing how “policemen had abdicated their responsibility to dispense color-blind service and protection, resulting in an object lesson for youth: the indiscriminate mass arrests of blacks being attacked by white mobs.”
The police were ubiquitous in the African-American neighborhoods of the urban North, but they weren’t there to protect black residents as much as they were there to enforce the racial order, even if it led to actual disorder in the streets. For example, in the aftermath of the Philadelphia “race riot” of 1918, one black leader complained, “In nearly every part of this city peaceable and law-abiding Negroes of the home-owning type have been set upon by irresponsible hoodlums, their property damaged and destroyed, while the police seem powerless to protect.”
If you are trying to understand the function of policing in American society, then even a cursory glance at the history of the institution would point you in the direction of social control. And blackness in particular, the historian Nikhil Pal Singh argues, was a state of being that required “permanent supervision and sometimes direct domination.”
The simplest answer to the question “Why don’t the American police forces act as if they are accountable to black Americans?” is that they were never intended to be. And to the extent that the police appear to be rejecting accountability outright, I think it reflects the extent to which the polity demanding it is now inclusive of those groups the police have historically been tasked to control. That polity and its leaders are simply rejected as legitimate wielders of authority over law enforcement, especially when they ask for restraint.
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Read the rest of Jamelle’s op-ed at the above link.
Truth is, we have the legal tools to do things like prosecute police misconduct, honor the human and civil rights of African Americans, overcome the years of unfair and discriminatory treatment of African Americans in education, employment, and leadership, promote community cooperation to allow each individual to reach maximum levels of contribution and enjoyment, correct the due process and bias flaws in court systems, tax more rationally and equitably, grant asylum to refugees we are now unfairly and illegally turning away, end inhumane and counterproductive “civil” detention, stop putting disproportionate numbers of minority communities in jail and prison, and end “Dred Scottification” of the other.
What we lack is 1) the honest, courageous, humane, and wise public officials necessary to make the laws and existing tools work; 2) the political will to get those types of officials into the correct offices.
I don’t know how much it would cost. But, whatever it is, we need to invest in it. And some “ready funds” could be made available if we stop building unneeded walls, detention centers, prisons, separating kids, and wasting legal and judicial resources fightingagainst the institutional fascism and tyranny of the Trump regime.
This November, vote like your life depends on it! Because it does!
On Monday, by a 5–4 vote, the U.S. Supreme Court approved one of the most brazen acts of voter suppression in modern history. The court will nullify the votes of citizens who mailed in their ballots late—not because they forgot, but because they did not receive ballots until after Election Day due to the coronavirus pandemic. As Justice Ruth Bader Ginsburg wrote in dissent, the court’s order “will result in massive disenfranchisement.” The conservative majority claimed that its decision would help protect “the integrity of the election process.” In reality, it calls into question the legitimacy of the election itself.
Wisconsin has long been scheduled to hold an election on April 7. There are more than 3,800 seats on the ballot, and a crucial state Supreme Court race. But the state’s ability to conduct in-person voting is imperiled by COVID-19. Thousands of poll workers have dropped out for fear of contracting the virus, forcing cities to shutter dozens of polling places. Milwaukee, for example, consolidated its polling locations from 182 to five, while Green Bay consolidated its polling locations from 31 to two. Gov. Tony Evers asked the Republican-controlled legislature to postpone the election, but it refused. So he tried to delay it himself in an executive order on Monday. But the Republican-dominated state Supreme Court reinstated the election, thereby forcing voters to choose between protecting their health and exercising their right to vote.
Because voters are rightfully afraid of COVID-19, Wisconsin has been caught off guard by a surge in requests for absentee ballots. Election officials simply do not have time, resources, or staff to process all those requests. As a result, a large number of voters—at least tens of thousands—won’t get their ballot until after Election Day. And Wisconsin law disqualifies ballots received after that date. In response, last Thursday, a federal district court ordered the state to extend the absentee ballot deadline. It directed officials to count votes mailed after Election Day so long as they were returned by April 13. A conservative appeals court upheld his decision.
The U.S. Supreme Court has overturned the only protection in place to ensure that voters could still safely cast ballots.
Now the Supreme Court has reversed that order. It allowed Wisconsin to throw out ballots postmarked and received after Election Day, even if voters were entirely blameless for the delay. (Thankfully, ballots postmarked by Election Day but received by April 13 still count, because the legislature didn’t challenge that extension.) In an unsigned opinion, the majority cited the Purcell principle, which cautions courts against altering voting laws shortly before an election. It criticized the district court for “fundamentally alter[ing] the nature of the election by permitting voting for six additional days after the election.” And it insisted that the plaintiffs did not actually request that relief—which, as Ginsburg notes in her dissent, is simply false.
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Read the rest of Mark’s article at the link.
Just last week Trump admitted that if more Americans voted, “you’d never have a Republican elected in this country again.”
John Roberts and his fellow GOP partisans on the Supremes got the message loud and clear. Although, they didn’t really need much direction from their Great Leader, since the GOP Supremes have scarcely ever seen a civil rights or voting rights law that they didn’t want to gut and pervert.
With markets wobbling, unemployment rising, and Trump’s “malicious incompetence” threatening American lives every day, the GOP hopes for November could depend on large-scale disenfranchisement and massive voter suppression. And, the J.R. Five have made it clear that they are primed and ready to twist and manipulate the law as necessary to guarantee their party’s minority stranglehold on government.
So much for “just calling balls and strikes.” Nope! The J.R. Five “resizes the strike zone” as necessary to guarantee victory for “their team” and defeat for American democracy.
BEFORE DAWN on Saturday morning, Aldo Martinez, a paramedic in Fort Myers, Fla., responded with his ambulance crew to a man who, having just been diagnosed with covid-19, was having a panic attack. The man didn’t know that Mr. Martinez, 26 years old, is an undocumented immigrant; nor that he is a “dreamer”; nor that his temporary work permit under an Obama-era program has been targeted by President Trump.
The covid-19 patient was not aware that Mr. Martinez’s ability to remain in the United States, as he has since his parents brought him here from Mexico at age 12, now hangs in the balance as the Supreme Court weighs the future of Deferred Action for Childhood Arrivals, the program known as DACA. What the man did know was that Mr. Martinez, calm and competent, spent 45 minutes helping to soothe him, explaining the risks and symptoms and how to manage them.
[[Full coverage of the coronavirus pandemic]]
Some 27,000 dreamers are health-care workers; some, like Mr. Martinez, are on the front lines, grappling with a deadly pandemic. They are doctors, nurses, intensive care unit staff and EMTs trained to respond quickly to accidents, traumas and an array of other urgent medical needs.
Until now, because of DACA, they have been shielded from deportation and allowed to work legally. Their time may be running out.
The Supreme Court heard oral arguments in the fall on the Trump administration’s attempt to rescind the program; it is expected to rule in the coming months. If, as appears likely, the court’s conservative majority sides with the administration, Mr. Martinez and thousands of other health-care workers would lose their work permits and jobs, and face the threat of deportation. So would another 700,000 DACA recipients — food prep workers, teachers and tutors, government employees, and students, including those enrolled in medical programs.
That would be catastrophic, and not just for the dreamers themselves, young people in their 20s and 30s who have grown up here. It would also be catastrophic for the United States.
Mr. Trump could halt the threat to dreamers with the stroke of a pen, by issuing an executive order. He has referred to DACA recipients as “some absolutely incredible kids” and promised that they “shouldn’t be very worried” owing to his “big heart.” But, so far, he has taken every possible step to chase them out, and his administration has made clear that if it prevails in the Supreme Court, dreamers will be subject to deportation.
That would give Mr. Martinez about four months. His current DACA status expires Aug. 5, and it would probably not be renewable if the administration prevails.
[[The Opinions section is looking for stories of how the coronavirus has affected people of all walks of life. Write to us.]]
“I don’t want people thanking me because I expose myself to covid — I’m not here for the glamour of it,” Mr. Martinez told us. “The principle is when people are having an emergency, they don’t have safety or security — you’re there to provide that for them in a time of need.”
Now it’s a time of need for Mr. Martinez himself, and hundreds of thousands of other dreamers like him. The country needs them as never before. Will Mr. Trump step up to provide them with safety and security?
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Let’s be clear about responsibility for this unconscionable self-inflicted looming disaster. There was an exceptionally well-justified nationwide injunction in effect against the Trump regime’s lawless attempt to terminate DACA, no “Circuit split,” and absolutely no emergency reason for the Supremes to take the DACA case. None, unless they were going to summarily affirm the lower court injunction. Yet, they went out of their way to intervene in an apparent effort by the “J.R. Five” to advance the regime’s gratuitously cruel and wasteful White Nationalist, racially motivated immigration and anti-human rights agenda.
At oral argument, although acknowledging the sympathetic circumstances, the GOP Justices showed little genuine concern for the human and legal consequences facing the “Dreamers” if the “J.R. Five,” as most expect them to do, “pull the plug” on these kids. Things like the consequences of loss of work authorization or permission to study and having to live your life in constant fear of arrest and removal seemed to go over the heads of the intentionally tone-deaf and condescending GOP majority.
At oral argument, Justice Sonia Sotomayor said it very clearly: “This is not about the law,” she said. “This is about our choice to destroy lives.”https://www.nytimes.com/2019/11/12/us/supreme-court-dreamers.html?referringSource=articleShare. Her GOP colleagues, not for the first or last time, appeared anxious to tune out “the truth she spoke” and instead to please the regime’s overlords by unleashing the cruelty and wanton destruction of humanity.
Ever since their horrible “cop out” in the so-called “Travel Ban cases,”J.R. and his GOP buddies have been enabling a toxically unconstitutional invidiously motivated attack on the due process rights and human dignity of some of America’s most vulnerable “persons.” Often, they bend the normal rules applicable to everyone else “on demand” from “Trump uber-toady” Solicitor General Noel Francisco. They have played a disgraceful and cowardly role in the regime’s, largely successful to date, efforts to “Dred Scottify” and dehumanize the most vulnerable among us.
As Mark Joseph Stern very cogently said in Slate:
Put simply: When some of the most despised and powerless among us ask the Supreme Court to spare their lives, the conservative justices turn a cold shoulder. When the Trump administration demands permission to implement some cruel, nativist, and potentially unlawful immigration restrictions, the conservatives bend over backward to give it everything it wants. There is nothing “fair and balanced” about the court’s double standard that favors the government over everyone else. And, as Sotomayor implies, this flagrant bias creates the disturbing impression that the Trump administration has a majority of the court in its pocket.
Life tenure makes these guys effectively unaccountable for their immoral and illegal actions. But, history will not forget where they stood in the face of bigotry, racism, cruelty, and tyranny.
A great democracy deserves and needs better from its life-tenured judiciary. Much better! The necessary shift from kakistocracy to democracy will require “regime change” in both the Executive and the Senate. November must be the starting place if we wish to survive as a democratic republic!
There are, to vastly overgeneralize, two basic types of books written by critics of the Trump presidency: One class of books tells us things we never knew, such as how tyrannies arise or how Deutsche Bank operates outside meaningful scrutiny or control. The other tells us what we already know and seem to have forgotten. “American Nero,” by Richard W. Painter and Peter Golenbock, is very much in that latter category and serves to remind us, in icy, granular detail, of what has happened to constitutional democracy in three short years, and all that we have absorbed, integrated and somehow moved beyond. In some sense, then, it stands less as a unified argument than as a scrapbook of things that no longer horrify us.
The fact that it went to press just before the Senate impeachment trial, and thus cannot account for the near-collapse of an independent Justice Department, the capitulation of Senate Republicans who believed that President Trump had inappropriately sought Ukrainian election interference but who felt somehow helpless to hold him to account, and recent lawsuits against opinion journalists in major newspapers, actually only highlights the fact that even when one believes the situation cannot get worse, it always gets worse, and often in the span of mere weeks.
Painter, who served as White House chief ethics counsel under George W. Bush, and Golenbock, the author of several New York Times bestsellers, seek to chronicle the erosion of the rule of law in the Trump era, and in some ways, the most chilling parts of the book are not the descriptions of Trump’s lawlessness, whether in the form of attacking the press, benefiting financially from his presidency, obstructing the Mueller probe or fawning over despots. Much of this will be familiar to anyone who has tried to keep up with the events of recent years. But set against the context of historical precedent, the case becomes crisper. In their descriptions of the Salem witch trials, the internment of Japanese Americans after Pearl Harbor, the suspension of habeas corpus during the Civil War, the Palmer Raids and the pointless waste of the McCarthy era, the authors remind us that each of those actions was taken under color of law, effectuated by presidents, congressmen and lawyers.
Indeed they are quick to remind us, in a terrifying chapter on the rise of the Third Reich, that judges, prosecutors and democratically elected officials formed the very backbone of Nazi Germany. And that the transformation of Germany from democratic republic to bloody dictatorship took place in less than three months. In urging Americans to stand up for the rule of law — and its bulwarks of religious tolerance, guarantees of due process, truth, a free press and freedom from corruption — Painter and Golenbock archly make the more complicated case that law itself is often deployed to break the rule of law. As was the case in Nazi Germany, the breakdown can be progressive and can come in the guise of statutes, codes and court cases; these trappings do not make descent into autocracy lawful, they merely make it invisible.
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Read the rest of Dahlia’s review at the link.
Not to quibble too much, but Dahlia, like many liberals who aren’t immersed in the ongoing immigration disgrace under this regime, doesn’t really “get” the essence of Jeff “Gonzo Apocalypto” Sessions, ascribing to him some minimum sense of ethics. No, despite his pretenses of great religiosity, Sessions, one of the most dangerous and committed White Nationalists of our time, has no discernible morality or ethics.
What he does have, however, is a driving racist commitment, combined with a mean streak of pure misogyny, to strip brown-skinned migrants, particularly vulnerable abused female refugees, of every vestige of their Constitutional and legal rights and to demean and dehumanize them: “Dred Scottify” if you will.
His “mistake,” was to put carrying out his White Nationalist program in front of the personal interests of the Trump Family. That’s how he found himself out of a job and on Trump’s “enemies list.”
Perhaps “Gonzo,” never the brightest bulb in the pack, actually thought that going “above and beyond” in carrying out Trump’s assault on migrants and their humanity would “compensate” for his lack of demonstrated public personal loyalty to the corrupt interests of the Trump Family. If he did, he was wrong.
Sessions saw himself as the attorney for White Nationalist Nation, first and foremost. And, to give him credit, he did as much damage to our Constitutional institutions and the rule of law in his relatively short tenure as anyone, including Barr, although Barr now perhaps has an opportunity to overtake his predecessor.
Additionally, Sessions probably realized that backing off on his promise under oath to Congress to follow the attorneys’ ethical code and disqualify himself from the Clinton investigation and his public commitment to follow DOJ Ethics advice and recuse himself from the Trump/Russia investigation could 1) lead to his eventual disbarment, and 2) might even subject him to criminal prosecution.
At a minimum, within the Department of Justice itself, acting against the ethics advice of DOJ Ethics’ Counsel deprives the actor of any “safe haven defense” based on following such advice. Consequently, self-preservation, rather than sensitivity to some moral code, was probably also a driving factor for Gonzo.
In line with observations in American Nero, accountability has all but disappeared from our crumbling Government institutions where Trump and his toadies are concerned. That’s why it’s probably going to be up to the “court of history,” especially where the role of Article III Judges like Roberts and his crew are concerned, to establish at least some moral and historical accountability for the unraveling of democracy and human values in the face tyranny.
“American Nero.” Yeah, that’s a really “spot on” description of Trump and the dangerousand immoral toadies surrounding him in the Kakistocracy.
In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.
— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)
Interviews with 10 workers at immigration courts around the country reveal fear, contradictory messages and continuing perils for the employees.
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On Tuesday night — over a day after several Bay Area counties issued shelter-in-place orders barring most people from leaving their homes — the San Francisco immigration court sent an email to staff: Hearings were being postponed nationwide for most immigrants, so the court would be closed starting Wednesday. (The text of the email was provided to ProPublica.)
On Wednesday, however, employees were directed to get onto a conference call, according to two participants. There they were told the Tuesday night email was wrong. The court wasn’t closed. They would have to come into the office — or use their vacation time to stay home. When staff asked about the shelter-in-place orders, the response was that the Department of Justice, which runs immigration courts, took the position that those were local laws and didn’t apply to federal employees.
The Trump administration has reduced immigration court operations in the past week, by postponing hearings for non-detained immigrants and closing a handful of courts to the public. Those actions came after the unions representing immigration prosecutors and judges issued a rare public call for courts to close.
The reduced court operations came after weeks of employees raising concerns privately and, they say, receiving few and unhelpful answers. And because the closures are determined solely by whether a court is hearing cases of detained immigrants, rather than by the level of health peril, employees still feel they’re putting their health at risk every time they come into the office as instructed.
That’s the picture that emerges from interviews with 10 federal employees who work at immigration courts across the country. Most spoke on the condition of anonymity. Many said they had raised concerns internally about their exposure to COVID-19 to their managers or hadn’t been informed of potential exposures.
“When I signed up for this job, I thought it might be morally compromising at times,” one immigration court employee told ProPublica, “but I never thought it would be compromising of my health and safety.”
The Executive Office for Immigration Review, the DOJ agency that oversees immigration courts, told ProPublica that agency headquarters was responsible for deciding when courts closed, but it did not confirm or deny specifics of the employees’ allegations, saying, “We do not comment on internal communications or internal personnel operations.”
In Denver, one prosecutor interviewed by ProPublica was alarmed by a judge’s frequent coughs during a hearing last Friday. “Don’t mind my coughing,” the judge said, according to the prosecutor. “I don’t think it’s coronavirus.” The following Tuesday, the prosecutor noticed that the judge was out for the rest of the week and emailed a court staffer in concern: Was it the coronavirus? Should she be taking precautions? The staffer’s reply: For privacy reasons, the prosecutor’s questions couldn’t be answered.
Only after news broke to the public on Tuesday night that a judge at the Denver immigration court had been diagnosed with COVID-19 (the disease caused by the new coronavirus) did court officials follow up with the prosecutor and confirm her suspicions. Other attorneys the judge had been in close contact with were notified the next day. The court remained open through Thursday, when the entire building it was housed in was shut down for deep cleaning by the General Services Administration. (It’s currently set to reopen Monday.)
In New York, legal aid groups sent a letter to immigration court officials saying that two of their attorneys had symptoms of COVID-19 and a third had been exposed to someone who’d tested positive. All three attorneys had appeared in court the past week, and all had hearings scheduled the following day. The courts didn’t say anything to their employees about the letter, according to multiple sources.
Since taking office, the Trump administration has pressured the immigration courts to process as many immigrants as quickly as possible — pressuring judges to hear more cases and complete them within a year, and making it harder for immigrants or attorneys to postpone hearings. Now, they face a public health crisis that requires everyone to reduce person-to-person contact.
Immigration court workers have two concerns. The first is that the courts are often crowded and require close contact with members of the public. The second is that, like most employees of any type, especially those who take public transit, they are exposed every time they leave their homes to work.
Employees remain concerned about their exposure over the past few weeks, while courts were running as usual. Employees in New York and California — the states hardest hit by the pandemic to date — told ProPublica that their requests for “deep cleaning” were rejected by managers, and that they were bringing their own Clorox wipes and disinfectant spray to the office.
Most immigration court business happens in person. Even trying to postpone an immigration hearing (for example, due to illness) requires an attorney to file a paper form with a clerk. And if an immigrant doesn’t show up for a hearing, they’re at risk of getting ordered deported in absentia. In at least one New York court, according to two people who work there, the chief judge told employees Monday to issue absentia deportation orders if immigrants weren’t showing up, even if the coronavirus was the suspected cause.
Policies the Trump administration introduced before the COVID-19 pandemic put considerable pressure on judges and prosecutors not to allow immigrants to postpone their hearings. Judges face a “performance standard” of completing 80% of their cases within a year — a standard over 90% of judges don’t meet, according to the National Association of Immigration Judges. But the more than 150 judges who have been hired in the past two years are still in their probationary period, where they could be fired for failing to meet performance standards.
While many judges have been lenient in granting coronavirus-related postponements, others have not. Last week, according to one California immigration court employee, a judge took a break from a hearing to tell colleagues that the immigrant’s attorney claimed to be sick, but because he wasn’t coughing, the hearing would move forward.
One email sent by the chief prosecutor at the Miami court Tuesday, read to ProPublica, told prosecutors that if an immigrant or her attorney claimed to be sick, any postponement should be counted against the immigrant (preventing them from requesting another postponement). If the immigrant didn’t want to postpone, and the judge wasn’t willing to hold the hearing by phone, the prosecutor was instructed to contact her manager — who would assess the claim of illness himself before deciding what to do. (A call to the chief prosecutor in Miami was not immediately returned.)
Most communication, though, has been oral. In at least two courts, chief judges were asked to put policies in writing and declined.
Employees have been in the dark about who, exactly, is making the decisions about which courts are open and when employees are allowed to work from home or take leave to stay home. “The word is that it’s out of their hands. Everything is out of everybody’s hands,” Fanny Behar-Ostrow, president of the union representing immigration prosecutors, told ProPublica Wednesday. “I don’t know who’s making the calls, but they’re wrong.”
An email obtained by the Miami Herald, written by the assistant chief immigration judge in charge of the Miami immigration court on Wednesday, said that closure decisions were ultimately being made by “the White House” — something that employees at other courts also said their managers had suggested. But chief judges gave conflicting explanations about which decisions were subject to White House approval; one chief judge told employees that the White House had to be involved in decisions about remote work, while other chief judges made those decisions themselves.
It’s not clear who at the White House is involved or how. Immigration officials told the Herald that the ultimate decision was made by the Office of Management and Budget. However, according to the employees ProPublica spoke to, some immigration court officials used “White House” to refer to policies set by the Office of Personnel Management. The assistant chief immigration judge (the judge in charge of a given immigration court location) for one California court told employees on March 12 that they’d had a phone call with staff for Vice President Mike Pence, who’s running the official coronavirus task force.
But to many employees, the specter of “White House” involvement raised concerns that the administration’s immigration policy priorities were getting in the way of its public health obligations.
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Read Dara’s full article at the link.
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The confusion engendered by politicized immigration enforcement in support of a White Nationalist agenda doesn’t end with the Immigration Courts. Despite, or perhaps because of, a number of public statements by DHS political hacks, there’s still plenty of uncertainty and angst about DHS’s enforcement and detention policies. Chloe Hadavas over at Slate sets out what happens when politicos take over law enforcement and justice.
Immigration and Customs Enforcement announced on Wednesday that it will halt most arrests and deportations, focusing only on individuals who are “public safety risks” and who are “subject to mandatory detention based on criminal grounds,” as the coronavirus sweeps across the U.S. and public health officials scramble to limit the virus’ spread.
Undocumented immigrants are often afraid to seek medical care for fear of deportation. And even as state and local officials encouraged anyone who needed medical treatment to seek help, ICE officers continued to make arrests, including in areas hit hard by the virus. But in the temporary change in enforcement, ICE also said that it won’t carry out operations near health care facilities, including hospitals, doctors’ offices, and urgent care facilities, “except in the most extraordinary of circumstances,” the agency said in a statement. “Individuals should not avoid seeking medical care because they fear civil immigration enforcement.”
Immigration experts said ICE’s decision was somewhat unexpected, though they remain cautious about how to interpret it. “I’m always surprised to hear that they’re going to scale back on their efforts,” said Jennifer M. Chacón, a UCLA law professor who focuses on immigration. ICE’s statement marks a distinct shift from the agency’s operations under the Trump administration. Both Chacón and Karla McKanders, a law professor who directs the Immigration Practice Clinic at Vanderbilt University, said that it reminded them of the “felons, not families” immigration policy of the Obama administration. “You read it and it basically looks like the Obama-era enforcement priority statement, and you just wonder why it takes a pandemic to get ICE to think about prioritizing resources and focusing efforts on public safety,” said Chacón.
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You can read the rest of Chloe’s article at the link.
“I don’t know who’s making the calls, but they’re wrong.” Kind of “says it all” about how the regime treats its own employees and the public good.
Meanwhile, Article III Courts, which have had more than ample opportunity to put an end to the constitutional farce taking place in Immigration Court and also to direct the DHS to take overdue steps to release non-dangerous (that is, most) immigration detainees before the epidemic sweeps chronically health-endangering immigration prisons in their New American Gulag (“NAG”), have once again “swallowed the whistle.” The Gulag, where kids are caged and put in “iceboxes,” families separated, and folks sometimes left to die, all for no reason other than “we can do it and nobody’s going to stop us” will haunt not only those corrupt public servants who established and operated it, but also those like legislators, judges, and public health officials who failed in their duties to end the human rights abuses.
Perhaps the Article IIIs are “running scared” because without the ongoing clown show in the U.S. Immigration Courts, the Article IIIs would be in line for the title of “Americas’s Most Dysfunctional Courts.”
Also, I think it’s time for Slate to take “Intern” off Chloe Hadavas’s title and ink this “up and coming talent” to a full time contract covering immigration and justice issues.
Due Process Forever. Dysfunctional Courts That Endanger The Public, Never!
🤡☠️
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
PWS
03-21-20
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UPDATE: Gullible, complicit U.S. Judges in their ivory tower bubbles with plenty of hand sanitizers might be willing to believe DHS’s claims that everything is “hunky dory” in the New American Gulag, but the truth is stark, ugly, and predictable for anyone familiar with the regime’s immigration antics, lies, and cover-ups:
“The cells stink. The toilets don’t flush. There’s never enough soap. They give out soap once a week. One bar of soap a week. How does that make any sense?”
Read the latest from Vice News, as hunger strikes break out in three New Jersey detention facilities:
Meanwhile, Courtside has been receiving reports from multiple sources in New Jersey about rapidly deteriorating conditions in Immigration Courts and the Gulag, failure to follow Federal health guidelines, possible positive coronavirus tests among ICE employees, and efforts by the the regime to keep the truth about about the growing health risks for detainees, judges, lawyers, and other personnel forced to deal with this dangerous, broken, and totally dysfunctional system “under wraps.”
I have also received disturbing, yet credible, reports of continuances for “at risk” attorneys being denied by some Immigration Judges, while other judges have received “no assurances” from their management “handlers” that the regime’s due-process-mocking “production quotas” will be waived during the health emergency! ☠️☠️☠️☠️☠️
Donald Trump and the Republican Party are trying to distract you from their catastrophic failure.
Two months ago, as the world knows, Trump was praising China’s government for its handling of the coronavirus outbreak, while downplaying the severity of the threat to the United States. “We have it totally under control,” he said in an interview to CNBC on Jan. 22. “It’s one person coming in from China and we have it under control. It’s going to be just fine.” For good measure, he said it again on Twitter: “China has been working very hard to contain the Coronavirus. The United States greatly appreciates their efforts and transparency. It will all work out well. In particular, on behalf of the American People, I want to thank President Xi!”
Now, of course, Trump simultaneously denies that anyone could have known about the pandemic (“I would view it as something that just surprised the whole world”) and claims to have predicted the extent of the disaster (“This is a pandemic. I felt it was a pandemic long before it was called a pandemic”). Similarly, he’s moved from praising President Xi Jinping’s government to attacking it. He’s also changed the language he uses to describe the pathogen that causes Covid-19. After weeks of saying “coronavirus,” he now calls it the “Chinese virus.”
The administration says it’s simply holding Beijing responsible for spreading the disease. And it is true that the Chinese government suppressed information and punished whistle-blowers, hiding the potential danger until it was too late. But given the president’s previous praise for China’s response, that explanation doesn’t hold up.
The likely truth is that Trump is flailing. His change in language came shortly after the stock market collapsed and the president faced harsh criticism for his sluggish response to the outbreak. Rather than face his failures — the United States is far behind its peers in testing, and its hospitals are largely unprepared for a surge of the severely ill — Trump turned to racial demagoguery. He would bounce back not by fixing his mistakes but by fanning fear of foreign threat.
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Following the president’s lead, Republican lawmakers, activists and officials have adopted the president’s language about the virus while avoiding any discussion of his response to the outbreak. Senator John Cornyn of Texas told reporters that “China is to blame because” of “the culture where people eat bats and snakes and dogs and things like that.” Kevin McCarthy, the minority leader of the House, called the disease “Chinese coronavirus.” And on Twitter, Senator Chuck Grassley of Iowa wondered what all the commotion was about: “I don’t understand why China gets upset bc we refer to the virus that originated there the ‘Chinese virus’ Spain never got upset when we referred to the Spanish flu in 1918&1919,” he wrote, in his typically hurried style.
None of this is the least bit clever. Trump failed to act when it was most important, and now his allies are flooding the zone with rhetoric meant to move attention away from the president’s poor performance and toward an argument over language.
One might think that Republicans have an interest in pushing the administration into a stronger response, but the truth is that Trump wasn’t the only member of his party to downplay the threat who knew better.
In January, just over two weeks after she was sworn in, Senator Kelly Loeffler of Georgia was part of a private briefing on the coronavirus provided by administration officials, including Anthony Fauci, the director of the National Institute of Allergy and Infectious Diseases. That same day, according to The Daily Beast, she and her husband began to sell millions in stock, a process that continued over the next few weeks. They also made a purchase: between $100,000 and $250,000 worth of shares in a company that specializes in technology that helps people work remotely.
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You can read Jamelle’s complete article at the link. In addition to Loeffler, whose sole contribution in her short time in Congress appears to be misleading the public while lining her own pockets, Senator Richard Burr (R-NC) has also been implicated for using the “insider information” from the Intelligence Committee to “play” the market while America slipped into a crisis for which the Trump regime was woefully unprepared.
Both Senators deny any wrongdoing. But, it’s very clear that at a time of national crisis, their minds and actions were far from acting in the public interest.
So, we should “pull together” to get through this. But, we should never forget the existential importance of securing “regime change” and voting the GOP out of office at every level of Government come November. The future of our country and of humanity will depend on it!
For weeks, public health officials have warned that the coronavirus will spread rapidly in the United States but the infection rate could slow with social distancing and severe restrictions on mass gathering. The nation’s judiciary did not listen. Civil, criminal, and immigration courts continued to operate normally, with very few exceptions, until late last week. Even on Monday, after both the president and most governors had declared a state of emergency, a huge number of America’s courts continued to operate, forcing judges, attorneys, litigants, defendants, immigrants, and court staff into close quarters with potentially infected individuals. Conversations with more than two dozen lawyers and court staff (who requested anonymity to avoid professional blowback) across the country reveal a system that is disastrously unprepared for a pandemic—and facilitating the coronavirus’s spread.
Because the American judiciary is so decentralized, there is no single contingency plan that governs all courts in case of an emergency. Most state and federal courts are making up their own rules as they go. All 94 federal district courts and 13 federal appellate courts are scrambling independently to devise a strategy for COVID-19. In many states, individual trial and appeals courts are also struggling to meet their legal obligations without contributing to the spread of the virus. Immigration courts are under the control of the discombobulated and ineffectual Trump administration. So are agencies, like the Social Security Administration, that hold administrative hearings to adjudicate individuals’ access to public assistance. Meanwhile, thousands of jails, prisons, and immigrant detention facilities remain unwilling or unable to meaningfully address COVID-19, putting both detained people and staff at risk of infection. The legal system is actively jeopardizing millions of people’s health and lives.
The legal system is actively jeopardizing millions of people’s health and lives.
State judiciaries’ sluggish response to the crisis was on display Monday in courtrooms around the country. Slate spoke with defense attorneys in Florida, New Jersey, New York, North Carolina, Washington state, and the District of Columbia who witnessed large groups of defendants congregating in courthouses after police arrested them for low-level offenses. Many people had been jailed for at least one night for crimes like driving without a permit and possession of drug paraphernalia. In northern New Jersey, according to an attorney who was present, a prosecutor argued on Monday that defendants are, in fact, safer from the virus behind bars. But a defense attorney in the region told Slate that her clients in jail have no access to soap or toilet paper.
. . . .
As of Monday, federal district courts around the country were still in operation, though many had suspended jury trials. Chief Justice John Roberts, the head of the federal judiciary, has not issued public guidance to these courts, leaving them to fend for themselves. The chief judge of each federal district court must decide when, and if, to shutter completely. Similarly, the chief judge of each federal appeals court must determine how, and if, to hold oral arguments, and how to keep deciding cases in spite of the interruption. The Supreme Court has canceled March’s oral arguments.
Many immigration courts, which are controlled by the Executive Office for Immigration Review at the U.S. Department of Justice, were still operating on Monday too. EOIR cancelled all master calendar hearings on Sunday—these are short hearings, scheduled months or years in advance, that typically begin the deportation process. But courts are still holding other kinds of hearings, except in Seattle, whose immigration court has shut down entirely. According to a DOJ official at the Los Angeles Immigration Court, the agency has failed to provide employees with any meaningful guidance. This official told Slate that last week, a court administrator told staff that COVID-19 is “like the flu” and “not a big deal.” All last week, she said, “people were coming into courtrooms sick.” EOIR was just beginning to develop a telework plan on Monday and was withholding all information about future operations from staff.
An employee at the New York City Immigration Court spoke of similar disarray. This individual told Slate that her supervisor ignored repeated pleas to mitigate the risk of infection to staff. Immigrants with symptoms of COVID-19 have repeatedly appeared in court. When judges canceled hearings for the day to limit exposure to these individuals, this supervisor reportedly expressed anger that they had not simply moved to a different courtroom.
On Sunday, the union representing Immigration and Customs Enforcement prosecutors joined immigration judges and lawyers to call on the Department of Justice to shutter immigration courts entirely. This unprecedented alliance of frequent foes condemned the DOJ’s response as “insufficient” and “not premised on transparent scientific information.” (The agency has yet to answer this letter.)
There are currently more than 50,000 individuals in immigrant detention. There are already coronavirus outbreaks cropping up at these detention facilities. But the government has put forth no comprehensive plan to test and treat patients. The same is true for inmates in state and federal facilities. A defense attorney in King County, Washington—a COVID-19 hot spot—told Slate on Monday that “there is no plan to protect people in jail from coronavirus. People are still held on nonviolent charges, and people are still cycling through on all sorts of minor charges.” As long as police continue to arrest individuals for low-level offenses, these people will be put in jail and then sent to a courthouse. Even if prosecutors decline charges, these individuals may have already been exposed to the virus and could spread it.
. . . .
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Read the complete article at the link.
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Laura Lynch Senior Policy Counsel AILA
Here’s the latest from Laura Lynch over at AILA:
The Honorable William P. Barr Attorney General
U.S. Department of Justice
James McHenry
Director
Executive Office for Immigration Review
Matthew T. Albence
Deputy Director and Senior Official
U.S. Immigration and Customs Enforcement
Submitted via email
March 16, 2020
Dear Attorney General Barr, Director McHenry, and Deputy Director Albence,
The American Immigration Lawyers Association (AILA) is writing to follow up on our March 12, 2020 letter requesting that Immigration and Customs Enforcement (ICE) immediately implement procedures for the prevention and management of COVID-19 and our March 15, 2020 statement calling for the emergency closure of the nation’s immigration courts, sent in conjunction with the National Association of Immigration Judges (NAIJ) and the American Federation of Government Employees (AFGE) Local 511 (the Immigration and Customs Enforcement (ICE) Professionals Union).
We appreciate the important measures already taken by the Department of Homeland Security (DHS) and the Department of Justice (DOJ), including the suspension of non-detained master calendar hearings. However, the evolving nature of this crisis demands more aggressive action. Since our initial letter to ICE, President Donald Trump proclaimed that the COVID-19 outbreak in the United States constitutes a national emergency, beginning March 1, 2020. States and localities across the country have suspended school, put in place restrictions on the size of gatherings, closed restaurants and bars, and shut down tourist activities.
DOJ and DHS must acknowledge the severity of this pandemic, and take the following steps to protect DOJ employees, DHS employees, respondents, representatives, interpreters, experts, and other immigration court stakeholders, as well as the general public:
• Immediately Close Immigration Courts: DOJ should immediately close immigration courts for a minimum of two to four weeks so that public health officials have an opportunity to test and gain valuable information about who can transmit the COVID-19 virus and to reassess how to ensure a safe environment for immigration court hearings.
AILA Doc. No. 20031666. (Posted 3/16/20)
• Hold Telephonic Bond Hearings and Stipulate to Bond in Writing: DOJ should proceed with fully telephonic bond hearings so that detained individuals who are eligible can be released from custody as soon as possible and allow supporting documents to be faxed and emailed to the appropriate clerk. When possible, ICE OPLA should stipulate to bond in written motions so it is not necessary to hold hearings.
• Cancel ICE Check-Ins: ICE should cancel and/or reschedule all OSUP and/or ISAP appointments that are scheduled for at least the next 60-90 days and extend the same for several months as conditions warrant.
• Immediately Release Anyone With Vulnerabilities from Custody: ICE should immediately release vulnerable populations from ICE custody, including people 60 and over, pregnant people, and people with chronic illnesses, compromised immune systems, or disabilities, and people whose housing placements restrict their access to medical care and limit the staff’s ability to observe them.
• Decrease the Number of People in Detention to Limit Exposure: ICE should liberally use its discretion to release individuals from custody and decrease the overall ICE population, including through the increased use of parole authority, stipulating to bond in written motions, and use of alternatives to detention (with no check-in requirements for thirty days or more).
• Take Proper Care to Prevent Transmission in Custody: ICE should immediately test detainees who exhibit any symptoms and/or present risk factors, as delayed confirmation of cases will necessarily be too late to prevent transmission. ICE should also provide proper hygienic supplies at all ICE detention and check-in facilities, allowing easy access to all detained persons, the population under ICE supervision, and ICE staff. ICE should halt transfers from facility-to-facility and to out-of-state locations in order to prevent the spread of the coronavirus throughout individual states and the U.S.
• Allow Stays of Removal and Other Emergency Motions to Be Submitted Via Mail: ICE should allow requests for stays of removal, and other emergency motions, to be submitted by mail instead of requiring an in-person filing with the applicant present.
• Issue a Blanket Extraordinary Circumstances Exception for One-Year Filing Deadlines: DOJ should issue a blanket extraordinary circumstances exception for asylum one-year filing deadlines that fall from March 1, 2020 (the beginning of the National Emergency) through the reopening of immigration courts.
2
AILA Doc. No. 20031666. (Posted 3/16/20)
• Provide Flexibility on All Deadlines: ICE and DOJ should liberally agree to and/or grant requests to extend filing deadlines based on imposition of remote work, loss of staff, necessity for child, elder, and family care based on school and institutional closures.
• Commit to Flexibly and Favorably Addressing COVID—19-Caused “Age Outs” on a Case-By-Case Basis. In the context of cancellation of removal for nonpermanent residents under INA § 240A(b), the Board of Immigration Appeals has acknowledged its ability to review the particular facts in a case in addressing a respondent’s argument that the age of qualifying relative should be “frozen” prior to the final administrative decision. Matter of Isidro, 25 I&N Dec. 829, 832 (BIA 2012) (rejecting respondent’s contention that age should be locked where there was no “undue or unfair delay” in the course of proceedings); see also Martinez-Perez v. Barr, No. 18-9573 (10th Cir. 2020) (BIA has jurisdiction and authority to interpret cancellation statute in a way that fixes the age of respondent’s daughter in light of undue or unfair delay).
• Stipulate to Relief When Appropriate, Especially in Detained Cases: ICE should stipulate to relief in cases where individual hearings are already scheduled, but must be re-calendared based on COVID-19 disruptions, and where the record in itself demonstrates that the respondent has meaningfully met her burden of proof based on a well-developed record of proceedings and evidentiary submissions that compel a grant of relief from removal.
• Parole Respondents in the Remain in Mexico Program: DHS should parole all respondents in the Remain in Mexico program (also known as MPP) into the U.S. on the date of their scheduled immigration court hearing date and provide them with a new hearing date in a non-detained court. At a minimum, EOIR must work with CBP to issue a new EOIR hearing notice and CBP must provide the respondent with both the new EOIR hearing notice and an MPP tear sheet. If the respondent does not have an MPP tear sheet containing a future U.S. immigration court date, the respondent would be out of status in Mexico and Mexico’s migration institute (INM) will likely refuse to renew the individuals’ temporary status in Mexico.
We respectfully request a response as soon as possible given the emergent circumstances. Please feel free to contact Kate Voigt (kvoigt@aila.org) with questions.
Sincerely,
THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION
CC: Barbara M. Gonzalez, Assistant Director, ICE Office of Partnership and Engagement; Richard A. Rocha, ICE Spokesperson; Lauren Alder Reid, Assistance Director, EOIR Office of Policy.
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AILA Doc. No. 20031666. (Posted 3/16/20)
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So, the spread of the coronavirus worldwide was months in the making. Why didn’t Roberts convene a meeting of the Judicial Conference, the Administrative Office, and the ABA to come up with an emergency plan?
Why didn’t EOIR, which has time for endless counterproductive “management” (actually “mismanagement”) nonsense (how about “judicial dashboards” for a mindless waste of time and money?), get together with the NAIJ, ICE, and AILAmonths ago to develop an emergency response plan for the Immigration Courts? No, the “powers that be” at EOIR were too busy trying to “decertify” the NAIJ with frivolous and unethical litigation.
Once this emergency is over, America also needs a top to bottom re-examination of the leadership and administration of our diverse judicial systems. As a whole, they are obviously “not quote ready for prime time” (“NQRFPT”) when it comes to protecting the public or using technology for the common good.
Obviously, at many levels, Federal, State, and Local, we have some of the wrong people serving as judges. First and foremost, the law is about humanity and protecting and saving lives to the greatest extent possible. That’s a fundamental human message that Roberts and many other right wing judicial zealots, out of touch with the needs of the public and wedded to stilted semi-absurdist and contrived interpretations of the law, simply don’t get. America needs better judges, with some empathy, humanity, and common sense! Again, it won’t happen overnight, but we have to start somewhere to get anywhere in the future!
Dahlia Lithwick Legal Reporter SlateHonorable James Dannenberg Retired State Judge Hawaii
Dahlia Lithwick reports for Slate:
James Dannenberg is a retired Hawaii state judge. He sat on the District Court of the 1st Circuit of the state judiciary for 27 years. Before that, he served as the deputy attorney general of Hawaii. He was also an adjunct professor at the University of Hawaii Richardson School of Law, teaching federal jurisdiction for more than a decade. He has appeared on briefs and petitions as part of the most prestigious association of attorneys in the country: the Supreme Court Bar. The lawyers admitted to practice before the high court enjoy preferred seating at arguments and access to the court library, and are deemed members of the legal elite. Above all, the bar stands as a sprawling national signifier that the work of the court, the legitimacy of the institution, and the business of justice is bolstered by tens of thousands of lawyers across the nation.
On Wednesday, Dannenberg tendered a letter of resignation from the Supreme Court Bar to Chief Justice John Roberts. He has been a member of that bar since 1972. In his letter, reprinted in full below, Dannenberg compares the current Supreme Court, with its boundless solicitude for the rights of the wealthy, the privileged, and the comfortable, to the court that ushered in the Lochner era in the early 20th century, a period of profound judicial activism that put a heavy thumb on the scale for big business, banking, and insurance interests, and ruled consistently against child labor, fair wages, and labor regulations.
The Chief Justice of the United States
One First Street, N.E.
Washington, D.C. 20543
March 11, 2020
Dear Chief Justice Roberts:
I hereby resign my membership in the Supreme Court Bar.
This was not an easy decision. I have been a member of the Supreme Court Bar since 1972, far longer than you have, and appeared before the Court, both in person and on briefs, on several occasions as Deputy and First Deputy Attorney General of Hawaii before being appointed as a Hawaii District Court judge in 1986. I have a high regard for the work of the Federal Judiciary and taught the Federal Courts course at the University of Hawaii Richardson School of Law for a decade in the 1980s and 1990s. This due regard spanned the tenures of Chief Justices Warren, Burger, and Rehnquist before your appointment and confirmation in 2005. I have not always agreed with the Court’s decisions, but until recently I have generally seen them as products of mainstream legal reasoning, whether liberal or conservative. The legal conservatism I have respected– that of, for example, Justice Lewis Powell, Alexander Bickel or Paul Bator– at a minimum enshrined the idea of stare decisis and eschewed the idea of radical change in legal doctrine for political ends.
I can no longer say that with any confidence. You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.
The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.
Without trying to write a law review article, I believe that the Court majority, under your leadership, has become little more than a result-oriented extension of the right wing of the Republican Party, as vetted by the Federalist Society. Yes, politics has always been a factor in the Court’s history, but not to today’s extent. Even routine rules of statutory construction get subverted or ignored to achieve transparently political goals. The rationales of “textualism” and “originalism” are mere fig leaves masking right wing political goals; sheer casuistry.
Your public pronouncements suggest that you seem concerned about the legitimacy of the Court in today’s polarized environment. We all should be. Yet your actions, despite a few bromides about objectivity, say otherwise.
It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America.
I predict that your legacy will ultimately be as diminished as that of Chief Justice Melville Fuller, who presided over both Plessy and Lochner. It still could become that of his revered fellow Justice John Harlan the elder, an honest conservative, but I doubt that it will. Feel free to prove me wrong.
The Supreme Court of the United States is respected when it wields authority and not mere power. As has often been said, you are infallible because you are final, but not the other way around.
I no longer have respect for you or your majority, and I have little hope for change. I can’t vote you out of office because you have life tenure, but I can withdraw whatever insignificant support my Bar membership might seem to provide.
Please remove my name from the rolls.
With deepest regret,
James Dannenberg
**********
So true. I’d also compare JR’s subservience to a transparently racist, White Nationalist, authoritarian agenda to White Supremacist darling Chief Justice Roger Taney, author of the Dred Scott decision. Roberts is knowingly enabling the “Dred Scottifing” of Hispanics, African Americans, Muslims, political opponents, the LGBTQ community, journalists, minority voters, and a host of others on the authoritarian regime’s “enemies” list.
At a time when America needs a Chief Justice with the courage and integrity to stand up for our Constitution, the rule of law, and the lives of the most vulnerable among us, we instead get Roberts.
J.R. Is quick to stand up for the rights of corporations, guns, and the Executive. But, when it comes to the rights of individuals — things like due process, human rights, and the right to be treated with human dignity, he’s nowhere to be found.
Only Justice Sotomayor had the guts and intellectual integrity to stand up for the future of humanity, simple human decency, and the rule of law by voting to deny the regime’s fraudulent stay request. Typically, Roberts & Co. didn’t even have the decency and intellectual honesty to provide a rationale for their life-threatening action. A reasoned decision is one of the “minimal requirements for due process” that Roberts and the Supremes’ majority ignore on a regular basis when rolling over for Trump toady Solicitor General Noel Francisco and his transparently fabricated “emergencies.” Francisco is another one whose disingenuous role and disregard for legal ethics in carrying out Trump’s wanton cruelty and human rights abuses should never be forgotten.
The damage caused by Roberts’s failure to lead and protect humanity isn’t legalistic or academic. It’s “real harm” to “real people.”
Let’s get “up close and personal” with what happens to individuals who fled to our country seeking only due process and fair and humane treatment, just to find Roberts’s and his Supremes’ immorality and warped sense of justice.
Here’s what Roberts’s complicity looks like:
The burns from the acid attack Elizabeth endured while she was kidnapped.The acid burned all the way through to the bone in Elizabeth’s left ankle. Courtesy of Elizabeth.Courtesy of Elizabeth Elizabeth’s acid burns.
That’s right folks. Torture, proudly presented to you by Chief Justice John Roberts and the majority of the United States Supreme Court. Who would have thought it could happen here? Like Judge Dannenberg, I spent a lifetime respecting the Supreme Court and even defending their decisions, including ones with which I disagreed. That has ended with the corruption, dishonesty, and inhumanity of the Roberts Court in the Age of Trump. Unworthy of America. Unworthy by of respect.
And here’s some narrative to go with it from Adolfo Flores over at BuzzFeed News:
Elizabeth left her home in Guatemala after being brutally beaten by the father of her daughter. She went to the police who refused to help her despite filing a complaint against him. The beatings in front of her daughter continued. Fearing that one day soon he’d kill her, Elizabeth left with her daughter.
“There’s a reason why there are so many femicides,” Elizabeth said.
The pair arrived near Ciudad Juárez in late July. She got off a bus she took with her daughter that was supposed to take them to Ciudad Juárez and got into what she believed was an Uber. She asked the driver to take her to the bridge that connects the city to El Paso. But as the city lights started to fade and the streets turned to desert and cliffs, Elizabeth realized the driver was taking her away from the city.
For about 12 days she was kept inside a dirty home, occasionally fed old food, and assaulted. Different men touched her genital area and licked her breasts in front of her daughter, according to documents provided by her attorneys. She wasn’t raped, but later had brownish discharge from her vagina she believes was the result of the men hurting her with an object or fingers.
Her attorneys said they believe the men were in the cartel, but don’t know for sure. They threatened to rape her and her daughter if she didn’t provide them with a number to call family for ransom. After days of holding her for ransom that her family couldn’t pay, the men threw chemical acid on her legs that resulted in second-degree burns. Despite closing her eyes and covering her ears, her then-10-year-old daughter could hear her mother’s screams, later telling Elizabeth she would never forget the sound of them.
At one point their kidnappers went outside and her daughter realized they left the door open. Elizabeth was too weak and in too much pain from the acid burns, but her daughter persisted.
“‘I don’t want them to kill us, torture us, or do something worse,'” Elizabeth recalled her daughter saying. “‘I can’t take this anymore, I feel like I’m going to die from sadness.'”
The pair ran from the house and were eventually chased by their kidnappers, armed with large black weapons, Elizabeth said. She fainted from the pain and heat, so her daughter ran ahead and flagged down police officers who called for help. A helicopter arrived shortly after to pick up Elizabeth.
Elizabeth woke up in a hospital and was discharged after seven days despite her left ankle still bleeding and with the bone exposed. Elizabeth said the hospital was overcrowded and didn’t have enough space, but believes she was discharged quickly because she was an immigrant and not a priority for the hospital’s staff.
She was taken to a shelter that was later closed due to bad conditions. At a second shelter, the director and staff helped cure her ankle — which smelled and cause her to fear she would get gangrene — with medication and topical creams because Elizabeth was too scared to venture outside.
In November, Elizabeth had recovered enough to walk, so she went with her daughter to the Arizona border and presented herself to CBP officers to request asylum. She told them about her attack and was taken to a hospital in Tucson to be medically screened. The doctor prescribed her medication to avoid infection. Then CBP sent her back to Ciudad Juárez.
On Jan. 31, Palazzo and other attorneys walked with her to a border crossing and asked that she be allowed to fight her case in the US. She was interviewed on the phone by the asylum officer who later said she failed.
While Elizabeth was in Ciudad Juárez, the shelter operators asked her if she could watch the door while they ran an errand. A shootout occurred shortly after between criminals and police near the shelter. Men who were running from the police ran up to the shelter’s doors and told Elizabeth to let them in. She faced them and refused, but they threatened to come back for revenge before running off.
Last week, a day before Elizabeth was due at a court hearing in El Paso, she was in the streets of Ciudad Juárez when one of her kidnappers approached her and recognized her. Filled with dread, Elizabeth and her daughter quickly made their way to the shelter to hide. Her fear then was that the men would come looking for her there.
The next day, on Friday, she went to her immigration court hearing in El Paso. She joined other immigrants in MPP who present themselves at the border in the predawn hours of the day to be transported to immigration court. Her plan was to ask for another non-refoulement interview, but that same morning, a federal appeals court blocked the Trump administration policy.
For the entire day, attorneys, immigrants, and advocates tried to understand what the 9th Circuit Court of Appeals’ order affirming a 2019 preliminary injunction meant for people stuck in Mexico, but also what would happen to those who had court hearings in the US that day, like Elizabeth. Sending them back would surely violate the judges’ order, some immigration attorneys said.
By Friday night, the 9th Circuit stayed its initial order blocking the Trump administration from enforcing MPP and the policy was allowed to continue. Still, Elizabeth and her daughter remained in CBP custody, and attorneys weren’t sure authorities were going to release her into the US.
She was interviewed three times about her fears of being sent back to Mexico. Her daughter told a US asylum officer about the nightmares she has, how she can’t sleep, and that she had trouble eating. Eventually, Elizabeth was told she passed her interview, was released Monday with an ankle monitor, and sent to reunite with family in Kansas.
Elizabeth was worried about the costs of continuing to receive medical care in the US for her acid burns, but she is determined to start a new chapter in her life.
“I’ve suffered a lot,” she said, “but for the first time in a long time, I feel safe.”
UPDATE
March 7, 2020, at 12:54 a.m.
This post was updated to include the more than 1,000 public reports of rape, torture, kidnapping, and other violence against immigrants sent back to Mexico.
There are lots of Elizabeths out there who have been silenced, some forever, by the likes of Roberts and other “unjust judges.” But, eventually, their stories will be told in all their grim and horrifying detail. At that point, folks like Roberts, Thomas, Alito, Kavanaugh, Gorsuch, and their enablers will attempt to “rewrite history,” to eschew moral and legal responsibility and shift the blame elsewhere with the “usual BS” like “just following the law,” “calling balls and strikes,” “just following orders.” Those are largely the same pathetic excuses offered by those who advanced the cause of human slavery, created Jim Crow, enabled genocide against Native Americans, and helped Hitler.
One of the most important tasks of the younger generation of the New Due Process Army is to bear witness and insure that J.R. & Co. don’t “get away with murder,” literally. Their job is to insure that the stories of those wronged by enablers of the Trump regime are heard loudly and clearly; to confront the complicit with the judgements of history; to insure that the descendantsof those who “stood small” and failed humanity know who their ancestors “really were” when the chips were down; and to make sure that history never again repeats itself in the form of John Roberts or anyone like him being allowed to hold positions of great trust and public responsibility in our judiciary.
Take a good like at the pictures above of Elizabeth’s legs and ankles. Those aren’t the results of somebody legitimately “just calling balls and strikes.” Roberts has “struck out.” Unfortunately, however, the rules allow him to continue to play the game to the detriment of our nation and human decency and the continued torment of those to whom he has willfully and inexcusably denied justice.
Due Process Forever; The Complicity of John Roberts, Never!
Dead Refugee Child Washes Ashore in Turkey — Stephen Miller Hopes To Kill More Refugees in The AmericasMr. & Mrs. Stephen Miller Look Forward to Planning Together for More “Crimes Against Humanity” Targeting World’s Most Vulnerable Refugees
“KILLER ON THE ROAD” – EMBOLDENED BY THE COMPLICITY OF THE “ROBERTS’ COURT,” GOP ABDICATION OF LEGISLATIVE OVERSIGHT, & BREAKDOWN OF DEMOCRATIC INSTITUTIONS AND VALUES, REGIME APPARENTLY PLANNING EXTRALEGAL MOVE TO KILL MORE OF THE MOST VULNERABLE REFUGEES – Refugee Women, Children, LGBTQ Community, Victims Of Government-Enabled Gangs Said To Among Targets of Miller/Trump White Nationalist “American Death Squads!”
“There’s a killer on the road His brain is squirmin’ like a toad Take a long holiday Let your children play If ya give this man a ride Sweet memory will die Killer on the road, yeah”
— From “Riders on the Storm” by The Doors (1971)
By Paul Wickham Schmidt
Courtside Exclusive
Feb. 24, 2019
I have been getting “unverified hearsay” reports from Courtside readers and others across the country that an emboldened and now totally unrestrained Trump regime actively is planning an all-out extralegal, extrajudicial onslaught against established asylum laws. It’s likely to claim the lives of many of the most vulnerable and deserving asylum seekers in the United States.
Predictably, this atrocious attack on humanity and human dignity is the “brainchild” of newly married neo-fascist White Nationalist hate monger Stephen Miller. Although unconfirmed, these reports have come from diverse enough sources and sound so consistent with the regime’s nativist, xenophobic approach to asylum that I, for one, give them credence. It’s time to start sounding the alarm for the regime’s latest vile assault on the rule of law and our common humanity!
I have gleaned that there is a 200-page anti-asylum screed floating around the bowels of the regime’s immigration bureaucracy representing more or less the nativist version of the “final solution” for asylum seekers. The gist of this monumental effort boils down along these lines:
[W]ould ban the grant of asylum claims involving PSGs defined solely by criminal activity, terrorist activity, persecutory actions, presence in country with generally high crime rates, attempted recruitment by criminal, terrorist, persecutors, perception of wealth, interpersonal disputes which government were not aware of or involved in and do not extend countrywide; private criminal acts which government was not aware of and do not extend countrywide; status as returned from U.S. and gender. Note the inclusion of “gender” at the end.
Thus, in one “foul swoop” the regime would illegally: 1) strip women and the LGBTQ community of their decades-long, hard-won rights to protection under asylum laws; 2) eliminate the current rebuttable regulatory “presumption of countrywide future persecution” for those who have suffered past persecution; 3) reverse decades of well-established U.S. and international rulings that third party actions that the government was unwilling or unable to protect against constitute persecution; and 4) encourage adjudicators to ignore the legal requirement to consider “mixed motivation” in deciding asylum cases.
There is neither legal nor moral justification for this intentional distortion and rewriting of established human rights principles. Indeed, in my experience of more than two decades as a judge at both the appellate and trial levels, a substantial number, perhaps a majority, of the successful asylum and/or withholding of removal claims in Immigration Court involved non-governmental parties and/or gender-based “particular social groups.” They were some of the clearest, most deserving, and easiest to grant asylum cases coming before the Immigration Courts.
At the “pre-Trump” Arlington Immigration Court, many of these cases were so well-documented and clearly “grantable” that they were “pre-tried” by the parties and moved up on my docket by “joint motion” for “short hearing” grants. This, in turn, encouraged and rewarded multiparty cooperation and judicial efficiency. It was “due process with efficiency, in action.”
Consequently, in addition to its inherent lawlessness, cruelty, and intentional inhumanity, the regime’s proposed actions will stymie professional cooperation between parties and inhibit judicial efficiency. This is just one of many ways in which the regime has used a combination of wanton cruelty and “malicious incompetence” to artificially “jack up” the Immigration Court backlog to over 1.3 million pending and “waiting” cases, even with the hiring of hundreds of additional Immigration Judges.
In a functioning democracy, with an independent judiciary, staffed by judges with knowledge, integrity, and courage, you might expect a timely judicial intervention to block this impending legal travesty and humanitarian disaster as soon as it becomes effective. But, as Justice Sotomayor recently pointed out in a blistering dissent, Chief Justice Roberts and his four GOP colleagues appear to have “tilted” in favor of the regime.
They can’t roll over and bend the laws fast enough to “greenlight” each new immigrant-bashing gimmick instituted by the regime. Moreover, as I’m sure is intended, once these new anti-asylum regulations are railroaded into force, the USCIS Asylum Offices will deny “credible fear” in nearly all cases, thus preventing most asylum applicants from even getting a day in court to properly challenge the regulations. All this will happen while the life-tenured Article III Courts look the other way.
For Stephen Miller, the coming Armageddon for defenseless asylum seekers must represent the ultimate triumph of fascism over democracy, hate over reason, and racism over tolerance. Miller was recently quoted in a New Yorker article about how screwing asylum applicants, and presumably knowing that they and their families would suffer and die, be tortured, or be otherwise harmed by his unlawful acts, was, in effect, his “life’s dream.” “It’s just that this is all I care about. I don’t have a family. I don’t have anything else. This is my life,” said Miller after a meeting in which he had promoted a fraudulent “Safe Third Country Agreement” with El Salvador, a country he acknowledged was without a functioning asylum system.” https://slate.com/news-and-politics/2020/02/stephen-miller-immigration-this-is-my-life.html.
It appears that even Miller’s forlorn “love life” has taken an upturn. Although the Trump Administration has been a “coming out party” for racists, White Nationalists, and White Supremacists of all stripes, the “hater dater circuit” has remained somewhat “restricted.” Evidently, not everyone “gets off” on the chance to get “up close and personal” with “wannabe war criminals.”
Nevertheless, in the middle of all the suffering he has caused, Miller finally found somebody who apparently hates and despises humanity just as much as he does, in Vice Presidential Press Secretary Katie Waldman. They were recently married at the Trump Hotel in D.C. with the “Hater-in-Chief” himself attending the festivities. How can America “get any greater,” particularly if you have the good fortune not to be a refugee condemned to rape, torture, abuse, family separation, beatings, disfiguration, burning, cutting, extortion or other horribles by this cruel, scofflaw, and “maliciously incompetent” regime?
When critics reach for analogies to describe Donald Trump — or look for examples of democratic deterioration — they tend to look abroad. They point to Russia under Vladimir Putin, Hungary under Viktor Orban, or Turkey under Recep Tayyip Erdogan. Trump, in this view, is a type — an authoritarian strongman. But it’s a foreign type, and his corrupt administration is seen as alien to the American experience.
This is a little too generous to the United States. It’s not just that we have had moments of authoritarian government — as well as presidents, like John Adams or Woodrow Wilson, with autocratic impulses — but that an entire region of the country was once governed by an actual authoritarian regime. That regime was Jim Crow, a system defined by a one-party rule and violent repression of racial minorities.
The reason this matters is straightforward. Look beyond America’s borders for possible authoritarian futures and you might miss important points of continuity with our own past. Which is to say that if authoritarian government is in our future, there’s no reason to think it won’t look like something we’ve already built, versus something we’ve imported.
Americans don’t usually think of Jim Crow as a kind of authoritarianism, or of the Jim Crow South as a collection of authoritarian states. To the extent that there is one, the general view is that the Jim Crow South was a democracy, albeit racist and exclusionary. People voted in elections, politicians exchanged power and institutions like the press had a prominent place in public life.
There’s a strong case to be made that this is wrong. “To earn the moniker,” argues the political scientist Robert Mickey in “Paths Out of Dixie: The Democratization of Authoritarian Enclaves in America’s Deep South, 1944-1972,” “democracies must feature free and fair elections, the safeguarding of rights necessary to sustain such elections — such as freedoms of assembly, association, and speech — and a state apparatus sufficiently responsive to election winners and autonomous from social and economic forces that these elections are meaningful.”
By that standard, the Jim Crow South was not democratic. But does that make it authoritarian? A look at the creation of Jim Crow can help us answer the question.
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Jim Crow did not emerge immediately after the Compromise of 1877 — in which Republicans agreed to withdraw federal troops from the South in return for the presidency — and the end of Reconstruction. It arose, instead, as a response to a unique set of political and economic conditions in the 1890s.
By the start of the decade, the historian C. Vann Woodward argued in his influential 1955 book “The Strange Career of Jim Crow,” opposition to “extreme racism” had relaxed to the point of permissiveness. External restraining forces — “Northern liberal opinion in the press, the courts, and the government” — were more concerned with reconciling the nation than securing Southern democracy. And within the South, conservative political and business elites had abandoned restraint in the face of a radical challenge from an agrarian mass movement.
Mickey notes how the Farmers’ Alliance and Populist Party “clashed with state and national Democratic parties on major economic issues, including debt relief for farmers and the regulation of business.” What’s more, “A Colored Farmers’ Alliance grew rapidly as well, and held out the possibility of biracial coalition-building.” This possibility became a reality in states like Alabama, Georgia and North Carolina, where Populists joined with a majority-black southern Republican Party to support common lists of candidates in “fusion” agreements against an explicitly elitist and white supremacist Democratic Party. Populists and Republicans won their greatest victories in that era in North Carolina, where they captured the state legislature and governor’s mansion, as well as local and county offices.
Democrats, among them large landowners and “New South” industrialists, responded with violence. Democratic paramilitary organizations — called “Red Shirts” — attacked Populist and Republican voters, suppressing the vote throughout the state. In Republican-controlled Wilmington, N.C., writes Mickey, “Democratic notables launched a wave of violence and killings of Republicans and their supporters, black and white, to take back the state’s largest city; hundreds fled for good.”
This basic pattern repeated itself throughout the South for the next decade. Working through the Democratic Party, conservative elites “repressed Populists, seized control of the state apparatus, and effectively ended credible partisan competition.” They rewrote state constitutions to end the vote for blacks as well as substantially restrict it for most whites. They gerrymandered states to secure the political power of large landowners, converted local elective offices into appointed positions controlled at the state level, “and further insulated state judiciaries from popular input.” This could have been stopped, but the North was tired of sectional conflict, and the courts had no interest in the rights of blacks or anyone else under the boot of the Democrats.
The southern Democratic Party didn’t just control all offices and effectively staff the state bureaucracy. It was gatekeeper to all political participation. An aspiring politician could not run for office, much less win and participate in government, without having it behind him. “What is the state?” asked one prominent lawyer during Louisiana’s 1898 Jim Crow constitutional convention, aptly capturing the dynamic at work, “It is the Democratic Party.” Statehood was conflated with party, writes Mickey, “and party disloyalty with state treason.”
Southern conservatives beat back Populism and biracial democracy to build a one-party state and ensure cheap labor, low taxes, white supremacy and a starkly unequal distribution of wealth. It took two decades of disruption — the Great Depression, the Great Migration and the Second World War — to even make change possible, and then another decade of fierce struggle to bring democracy back to the South.
It’s not that we can’t learn from the experiences of other countries, but that our past offers an especially powerful point of comparison. Many of the same elements are in play, from the potent influence of a reactionary business elite to a major political party convinced of its singular legitimacy. A party that has already weakened our democracy to protect its power, and which shows every sign of going further should the need arise. A party that stands beside a lawless president, shielding him from accountability while he makes the government an extension of his personal will.
I’m not saying a new Jim Crow is on the near horizon (or the far one, for that matter). But if we look at the actions of the political party and president now in power, if we think of how they would behave with even more control over the levers of the state, then we might be on a path that ends in something that is familiar from our past — authoritarian government with a democratic facade.
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“[T]he courts had no interest in the rights of blacks or anyone else under the boot of the [Jim Crow] Democrats.”
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In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.
— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)
How soon we forget!
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Put simply: When some of the most despised and powerless among us ask the Supreme Court to spare their lives, the conservative justices turn a cold shoulder. When the Trump administration demands permission to implement some cruel, nativist, and potentially unlawful immigration restrictions, the conservatives bend over backward to give it everything it wants. There is nothing “fair and balanced” about the court’s double standard that favors the government over everyone else. And, as Sotomayor implies, this flagrant bias creates the disturbing impression that the Trump administration has a majority of the court in its pocket.
