"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Far right activist 5th Circuit Judges reacting to colleagues who followed law and ruled in favor of immigrants. PHOTO: Creative Commons.
The issue is whether an in absentia removal order can be based on a statutorily defective notice. The panel followed the Supreme’s decision in Niz-Chavez and rejected the BIA’s conflicting decision in Matter of Laparra. In other words, the panel required the Government to follow the statute, a process known as “complying with the law.” This sent some of this most conservative circuit’s most far-right judges over the edge. Here’s the en banc decision:
Credit Dan Kowalski over at LexisNexis for the “food fight” characterization.
The scofflaw GOP dissenters cited “deference” to the Executive, something they have pointedly refused to apply to Biden Administration precedents and policies favoring migrants.
The majority says: “[The BIA] flies in the face of the Supreme Court’s Pereira decision, which Laparra ignored.”
Incredibly, Garland is on the “wrong side” of this controversy, defending the legally incorrect misinterpretation of his “Trump holdover” BIA!
The statutory requirement at issue: That a “Notice to Appear” before the Immigration Court inform the individual of the time and place of the hearing. How difficult does that sound? Not very, unless you are bumbling bureaucrat at DHS and EOIR who chose, even after the Supremes’ initial decision, toviolate that decision and the statute in almost 100% of the cases instituted before the Immigration Courts!
Kudos to the 3 Trump appointees and one Bush II appointee who joined 3 Obama appointees and 2 Clinton appointees to uphold the rule of law and thwart their GOP scofflaw colleagues.
Interestingly, and perhaps mildly encouraging, the “Trump appointees” split 3-3 on this one.
Apparently nothing drives a wedge between conservative judges like the scary prospect of following the law when it gives immigrants a win!
Future ambitious academic study: How much of the current out of control backlog can be traced to the Government’s, and particularly the BIA’s, inept handling of straightforward notice requirements set forth in the statute?
There’s a reason why I keep referring to Garland’s out of control EOIR backlogs as “largely self-created,” albeit in fairness not exclusively by him. The Trump Administration, and to a lesser extent the Obama Administration, also “excelled” at “Aimless Docket Reshuffling” driven by “prioritizing” improper political goals over due process, fundamental fairness, quality, and practical scholarship in the Immigration Courts.
Here’s an array of reports on how America under the Trump regime has joined the ranks of dictatorships, torturers, child abusers, persecutors, and human rights criminals!
Eugene Robinson Opinion Columnist Washington Post Source: WashPost Website
Eugene Robinson @ WashPost:
What kind of people are we? As a society, are we so decadent and insecure that we show “toughness” by deliberately being cruel to innocent children? Is this what our nation has come to? Or are we better than that?
This election demands we answer those questions. The choice between President Trump and Joe Biden is not just political. It is also moral. And perhaps nothing more starkly illustrates the moral dimension of that decision than the Trump administration’s policy of kidnapping children at the southern U.S. border, ripping them away from their families — and doing so for no reason other than to demonstrate Trump’s warped vision of American strength.
We learned this week that some of those separations will probably be permanent. As NBC News first reported, 545 boys and girls taken as many as three years ago — the children of would-be immigrants and asylum seekers, mostly from Central America — have not been reunited with their parents and may never see their families again.
These are not among the nearly 3,000 families separated at the border in 2018, when children were kept in cages like animals or shipped away to facilities across the country, hundreds or thousands of miles from the border. We now know, thanks to the American Civil Liberties Union and other pro bono lawyers, that an additional 1,500 children were torn away from their families beginning in 2017, when the Trump administration conducted a trial run of the separation policy.
Please think about that. The shocking scenes we saw two years ago did not result from a sudden spasm of presidential anger. They didn’t stem from a Fox News segment Trump might have seen one evening. Rather, the administration rehearsed this form of cruelty.
What the administration did not plan for was how to reunite the children taken in 2017 with their families. Many of the parents were deported, and their children were placed in shelters around the country, then ostensibly released to parents or guardians, placements that the ACLU is still trying to confirm.
[Our Democracy in Peril: A series on the damage Trump has caused — and the danger he would pose in a second term]
The ACLU and other organizations have sent investigators to towns and villages in Central America in an attempt to find the kidnapped children’s families — an effort complicated not just by time and distance, but also by the covid-19 pandemic. Parents of 545 children have not been found, the ACLU reported this week.
Disturbingly, the Department of Homeland Security suggested that some of the parents declined to get their children back so they could remain in the United States. Keep in mind that most of these families were seeking asylum from deadly violence in their home countries. The Trump administration changed immigration guidelines to make it unlikely that the families would ultimately be allowed to stay in the United States, but federal law gives them the right to apply for asylum and to have their cases heard. They did nothing wrong. They should never have been asked to choose between parenting their children and getting them to safety — not by their home countries, and not by the United States.
Trump’s racism and xenophobia have been hallmarks of his presidency from the beginning, so perhaps it should be no surprise that he would preside over such an outrage. But he didn’t do this by himself. He had plenty of help.
Former attorney general Jeff Sessions seized an opportunity to make his rabid antipathy toward Hispanic immigration into policy. White House senior adviser Stephen Miller, a former Sessions aide in the Senate, was the architect of Trump’s “zero tolerance” immigration policy. Then-White House Chief of Staff John F. Kelly said in 2018 that the children taken would be “taken care of — put into foster care or whatever.” Former homeland security secretary Kirstjen Nielsen said last year that she regretted that “information flow and coordination to quickly reunite the families was clearly not in place” — but not the separations themselves.
President Donald Trump’s administration started and carried out a policy that took more than 4,000 children from their parents, at least 545 of whom are still split apart years later. But at Thursday’s debate, the president insisted that he did nothing wrong at all ― blaming his Democratic predecessors and even insisting the kids are doing fine.
“They are so well taken care of,” Trump said of the children taken from their parents by his administration. “They’re in facilities that were so clean.”
Trump’s first term was marked by a full-out assault on immigration, both legal and unauthorized. The most dramatic was his “zero tolerance” policy on unauthorized border-crossing, used in a 2017 pilot program and expanded more broadly in 2018, that led to criminal prosecution of parents and locking up their kids separately. Splitting up families was intentional and calculated, according to multiple reports.
Thanks to mass public outrage and a court order, Trump was forced to stop his family separation policy. Most families were reunited, but the American Civil Liberties Union, which was part of the lawsuit against the government that stopped the policy, said this week that at least 545 kids are still away from their parents.
“Their kids were ripped from their arms and separated,” Democratic nominee Joe Biden said during the debate. “And now they cannot find over 500 sets of those parents and those kids are alone. Nowhere to go. Nowhere to go. It’s criminal.”
Washington Post Columnist Ruth Marcus, moderates a panel discussion about chronic poverty with Education Secretary John B. King and Agriculture Secretary Tom Vilsack, during the National Association of Counties at the Washington Marriott Wardman Park, in Washington, DC, on Tuesday, Feb. 23, 2016. U.S. Department of Agriculture photo by Lance Cheung.
Ruth Marcus @ WashPost:
545.
That is the number of children still separated from their families by the Trump administration — separated deliberately, cruelly and recklessly. They might never be reunited with their parents again. Even if they are, the damage is unimaginable and irreparable.
545.
Even one would be too many. Each one represents a unique tragedy. Imagine being ripped from your parents, or having your child taken from you. Imagine the desperation that the parents feel, the trauma inflicted on their children.
545.
That number represents an indelible stain on President Trump and every individual in his administration who implemented this policy, flawed at the conception and typically, gruesomely incompetent in the execution. It is, perhaps in the technical sense but surely in the broader one, a crime against humanity. It is torture.
545.
That number — I will stop repeating it, yet it cannot be repeated enough — represents a moral challenge and responsibility for the next administration. If Joe Biden is elected president, he must devote the maximum resources of the federal government to fixing this disaster. The United States broke these families; it must do whatever it takes to help them heal.
Nothing like that would happen in a second Trump term, because Trump himself doesn’t care. He doesn’t grasp the horror that he oversaw. He doesn’t comprehend the policy, and he is incapable of feeling the pain it inflicted.
Those truths could not have been clearer cut than during Thursday night’s debate.
Moderator Kristen Welker of NBC News asked the president a simple question: “How will these families ever be reunited?”
First, Trump misstated the situation: “Their children are brought here by coyotes and lots of bad people, cartels, and they’re brought here, and they used to use them to get into our country.”
No. These are children separated from their families, not separated from smugglers. They are children brought by their parents in desperate search of a better life, desperate enough that they would take the risk of the dangerous journey.
Then Trump pivoted to the irrelevant: “We now have as strong a border as we’ve ever had. We’re over 400 miles of brand new wall. You see the numbers. And we let people in, but they have to come in legally.”
Welker persisted: “But how will you reunite these kids with their families, Mr. President?”
Trump responded by pointing his finger at his predecessor: “Let me just tell you, they built cages. You know, they used to say I built the cages, and then they had a picture in a certain newspaper and it was a picture of these horrible cages and they said look at these cages, President Trump built them, and then it was determined they were built in 2014. That was him.”
This is typical Trumpian deflection, bluster undergirded by ignorance. The “cages” are ugly but irrelevant to the topic at hand: the deliberately cruel plan to deter border-crossing by separating children from parents. That was a Trump administration special, implemented with callous sloppiness and so extreme that even the Trump administration abandoned it.
Welker, for the third time: “Do you have a plan to reunite the kids with their families?”
At which point Trump made clear that he did not: “We’re trying very hard, but a lot of these kids come out without the parents, they come over through cartels and through coyotes and through gangs.” The children, he added later, “are so well taken care of, they’re in facilities that were so clean.”
The third and final presidential debate gave Donald Trump and Joe Biden the opportunity to make their final pitch to the American people before the 2020 election. For the Democratic nominee, that meant driving home the point that he believes in science, that he’ll take the COVID-19 pandemic seriously, that climate change is real, and that systemic racism must be dealt with. For Trump, it meant making it clear that in addition to being a science-denying, QAnon-promoting dimwit, he’s also an actual monster who thinks separating small children from their parents, in some cases permanently, is absolutely fine.
Asked by moderated Kristen Welker about the news that parents of 545 children separated at the border—60 of whom are under the age of five—cannot be located, Trump defended the policy and gave no explanation for how the government plans to find these people and reunite their families. “Children are brought here by coyotes and lots of bad people, cartels, and they’re brought here and they used to use them to get into our country,” Trump said, which is objectively false, as they are brought here by their parents, which is why it’s called the family separation policy. “We now have as strong a border as we’ve ever had. We’re over 400 miles of brand new wall. You see the numbers and we let people in but they have to come in legally.”
Noting that Trump hadn’t answered the question, Welker pressed: “But how will you unite these kids with their families?”
“They built cages, they used to say I built cages…that was him,” Trump said, pointing to Biden and referring to the fact that the Obama administration did build temporary enclosures but failing, naturally, to mention that his predecessor did not separate families.
“Do you have a plan to reunite the kids with their parents?” Welker asked a third time. Again, Trump responded by claiming that the children “come without the parents, they come over through cartels and through coyotes and through gangs.”
At this point, Joe Biden was given a chance to weigh in and used his time to describe the policy implemented by Trump as the horror show all non-sociopaths know it to be. “Parents, their kids were ripped from their arms and they were separated and now they cannot find over 500 sets of those parents and those kids are alone, nowhere to go. It’s criminal.”
Then Trump interjected with what he apparently believed was an important point that would cast his administration in a much more favorable light and perhaps might even win it some awards or sainthood by the Catholic church. “Kristen, I will say this,” he told the moderator, of the children stolen from their parents. “They’re so well taken care of. They’re in facilities that are so clean.
With regard to that claim, NBC News reporter Jacob Soboroff weighed in on that after the debate, telling Rachel Maddow: “I was one of the reporters I guess the president mentioned, they invited me to go to the epicenter of this policy…what I saw was little children sitting on concrete floors, covered by mylar blankets, supervised by security contractors in a watchtower, it makes me sick every time I recall it. And Physicians for Human Rights…called this torture…the American Academy of Pediatrics called this state-sanctioned child abuse, and the president of the United States I guess interprets that as children being well taken care of.”
Jacob Soboroff NBC Correspondent Jacob Soboroff at the ABC News Democratic Debate National Constitution Center. Philadelphia, PA. Creative Commons License
Here’s a video from NBC New’sJacob Soboroff, who has actually been inside “Trump’s Kiddie Gulag.” Surprise spoiler: It’s not “nice.” More like “torture” and “child abuse.”
There is neither moral nor legal justification for what the Trump regime has done to asylum seekers and other migrants over the past four years as part of their racist, White Nationalist, nativist agenda. But, we can show that we’re a better country than his horrible vision by voting him and all of his enablers out of office! Vote ‘Em out, vote ‘Em out!
ARE YOU KIDDING ME? — NATS COME FROM BEHIND TO BEAT ASTROS 6-2 & WIN FIRST WORLD SERIES AS HOWIE KENDRICK STRIKES BIG BLOW AGAIN!
By Paul Wickham Schmidt
Exclusive for Immigrationcourtside.com
Oct. 30, 2010. For more than seven innings, Astros starter Zack Greinke had baffled the Washington Nationals, shutting them out on one hit while nursing a 2-0 lead. He outdueled Nats starter Max Scherzer, who despite giving up seven hits and two runs in five innings kept his team in the game.
With one out in the top of the seventh, Nats third baseman Anthony Rendon hit a home run to cut the margin in half. Following a walk to young superstar Juan Soto, Astros manager A.J. Hinch pulled Greinke and went to reliever Will Harris to face the Nats designated hitter Howie Kendrick.
Kendrick was the hero of Divisional Series win over the L.A. Dodgers and the MVP of the League Championship Series win over the St. Louis Cardinals. But, his World Series had been less than stellar. As he came to the plate, he was sporting an average of just over .200. It didn’t matter. The 36-year-old part-time starter, who was the Nats leading hitter for average during the regular season, drove a Harris pitch down the right field line where it hit the screen just inside the foul pole for a two-run homer that put the Nats ahead to stay 3-2.
With help from Adam Eaton and Juan Soto, the Nats added three big insurance runs in the eighth and ninth innings. Patrick Corbin, normally a starter, but also pitching out of the bullpen in the postseason, threw three scoreless innings in relief for the win. Daniel Hudson closed it out with a thee-up, three-down ninth inning. Then pandemonium broke loose.
So, the Nats completed an amazing resurrection from a 19-31 start to World Series Champs, beating the heavily favored Astros. Lots of credit to Manager Davey Martinez for righting the ship after many were screaming for his head back in May.
Among the interesting facts generated by this Series: Nats became first team in postseason history to win five “elimination games” (they trailed in each one); Nats are the first team to win four Series games on the road; this is the only major sports championship in which the visiting team won every game.
Nats pitcher Stephen Strasburg, who was 2-0 in the World Series and 5-0 in postseason was named the MVP.
Congrats again to the Nats and their organization, particularly the Lerner family which owns the team and brought baseball back to Washington. They join the Caps and the Mystics in bringing recent championships to D.C., and showing that good things can come out of Washington.
WORLD SERIES:RENDON DRIVES IN FIVE, EATON, SOTO HOMER, & STRASBURG SHUTS DOWN ‘STROS AS NATS WIN 7-2 IN HOUSTON TO FORCE GAME 7 TONIGHT!
Washington Nationals
Game seven from Houston tonight at 8 pm on Fox. This is the first time in major sports playoff history that the visitors (in this case, the Nats) have won six games. By going 5-0 in the postseason, Nats’ ace Stephen Strasburg ties a major league record!
Tonight, Max Scherzer (hopefully) goes for the Nats after missing game five in DC with severe back spasms. The Nats’ Davey Martinez became the first manager ejected from the Series since 2015 for arguing a questionable interference call on Trea Turner at first base that looked like it had killed a Nats’ rally in the seventh inning. However, two batters later, Anthony Rendon saved the day by blasting a majestic two-out, two-run homer to give the Nats some breathing room. Nats’ 21-year-old superstar Juan Soto continued to impress with a “moon shot” home run to give the Nats a 3-2 lead they would not surrender, thanks to Strasburg and Rendon.
Go Nats! Bring the World Series Championship home to DC!
THEY DID IT: NATS SWEEP CARDS 7-4, WIN NL PENNANT, & HEAD TO FIRST WORLD SERIES! – Will Face Astros Or Yankees!
Washington Nationals celebrate NLCS sweep of Cards, move on to world Series.
By Paul Wickham Schmidt
Exclusive for immigrationcourtside.com
Oct. 15, 2019. Banishing years of bitter postseason disappointment, the Washington Nationals beat the St. Louis Cardinals 7-4 tonight at Nationals Park for a four-game sweep and their first ever trip to the World Series. This will be the first World Series game in Washington, D.C. since the Washington Senators faced the New York Giants in the fall classic in 1933. FDR was in his first term as President, and America’s entry into World War II was still eight years in the future. Many of today’s Nats stars would not even have been welcome on that field, as the game then was still totally and disgracefully segregated.
The Nats started fast, basically putting tonight’s game away with a seven-run outburst in the first inning. They then held off the Cards rally that brought them within three runs and had long-suffering Nats fans thinking “No, not again.” Jeremy Corbin had the strikeout pitch going, but was touched for four runs in five innings. However, the bullpen, a vulnerability during the regular season, came through brilliantly, with four scoreless innings by Tanner Rainey, Sean Doolittle, and Daniel Hudson.
The Nats recovered from a horrible 19-31 start to win the NL Wildcard Game, the Divisional Championship, and now the League Championship Series. 36-year old Howie Kendrick, the hero of the Nats victory over the Dodgers in the Divisionals, was also named the MVP of this series.
Congratulations to the entire Nationals team, the organization, and the fans. The Nats will play the AL Champion, either the Houston Astros or the New York Yankees, in the World Series. The Astros currently lead that best of seven series 2-1.
October 10, 2019. Nightmare! That’s the only way to describe Howie Kendrick’s playoff series against the LA Dodgers. The normally reliable, hard hitting, 36-year-old “utility star” had a spectacular regular season, leading the Nats with a .344 average (although lacking sufficient at-bats for the NL hitting crown) and many clutch hits. He is also one of the Nats’ veteran leaders who helped guide a team with some up and coming young stars to the playoffs after the team’s disastrous start to the 2019 season.
But, things took a nosedive for Howie against LA this October. Inserted into the starting lineup for consecutive games, he committed three untimely errors, an egregious base running mistake, and his failures at the plate left key runners stranded. Yet, Nats’ Manager Davey Martinez stuck with the flailing vet.
When Howie arrived at the plate in the top of the10th inning of a 3-3 tie to face Dodger reliever Joe Kelly, he was 0 for 4. That included two strikeouts and a rally-killing double play. His series batting average hovered just above a pathetic .200. Indeed, so convinced were the Dodgers that former teammate Kendrick was their patsy, that Kelly intentionally walked young slugger Juan Soto (who had homered earlier) to load the bases and bring up Kendrick. Obviously, the Dodgers were thinking double play or at least another strikeout.
At that point, Nats’ fans were hoping against hope that Howie would return to form long enough to hit a sacrifice fly to the outfield to score Adam Eaton from third and give them their first lead of the game. But, Howie, with perhaps his last shot at post-season glory on the line, had other things in mind. Behind in the count 0-1, he took a mighty swing, squarely connected with a Kelly fastball, and sent a beautiful towering 400 foot blast over the center field wall for a grand slam putting the Nats ahead 7-3. As Howie triumphantly rounded the bases, Kelly hung his head, and the Dodger fans sat in stunned silence, some even heading for the exits, as the visiting dugout and the few Nats’ fans in attendance went berserk!
The Nats sent rejuvenated reliever Sean Doolittle to the mound for the bottom of the 10th, and he set the clearly dispirited Dodgers down in order. The game ended on a spectacular catch from another “forgotten Nat,” Michael A. Taylor, who had been inserted into the lineup only because of an injury to regular Nats’ center fielder Victor Robles.
Howie’s heroics capped an amazing comeback by the “never say die” Nats. After a gutty, but not up to usual high standards, effort from starter Stephen Strasburg, the Nats faced a 3-1 deficit going into the eighth inning. Baffled most of the night by Dodgers’ starter Walker Buehler, the Nats faced future Hall of Famer Clayton Kershaw, normally a starter, appearing in a rare relief role. With only six outs to go in their season, things looked dim for the visitors — for a moment. Then, on consecutive pitches from Kershaw, MVP candidate Anthony Rendon and Soto slammed homers to tie the game at 3-3 and send a shell-shocked Kershaw to the dugout.
So, the Nats, who started the season 19-31, appeared dead in the water, and had many fans screaming for Martinez’s head, move on to face another traditional nemesis, the St. Louis Cardinals, in the NL League Championship Series, starting in St. Louis tomorrow night at 8:08 pm on TBS. The Cards are fresh off a 13-1 humiliation of the Atlanta Braves, ending the game early with a remarkable 10-run first inning.
And, the Dodgers, who had a league-best 106 regular season victories, are done for this postseason, their dreams of World Series rings dashed. The Nats and their long suffering fans know that feeling of disappointment well — “been there, done that.” Thanks to Howie and a real “team effort,” this year is different in DC.
The Nats and Bryce Harper were down to their last strike on Easter Sunday. Nats relievers had blown a fine pitching performance by Gio Gonzalez and turned a 3-2 lead into a 4-3 deficit.
With two men on and two out in the bottom of the 9th and a 3-2 count on Harper, the Nat’s prospects for salvaging the “rubber game” of three with the Phils looked dim. But, Phils’ reliever Joaquin Benoit grooved a fast ball and Harper teed off, sending a towering blast 421 feet over the fence in the deepest part of center field at Nats Park. It was his second homer of the day (4th of the year) and his sixth career “walk off.” Take a look at the above link.
Also, congrats to the Washington Wizards for getting their playoff run off to a good start with a 114-107 win over the Atlanta Hawks behind a personal playoff high of 32 points from star guard John Wall. 🏀
Not as good a result for the Washington Caps on Saturday night in their Stanley Cup quest. The Caps dropped a tough one in overtime to the underdog Toronto Maple Leafs, 4-3. The teams move to Toronto for the next game on Monday night with the series tied 1-1.🏒
Patrick Ewing on being named the new head basketball coach of the Georgetown Hoyas. Ewing is one of Georgetown’s all-time greats who led them to an NCAA Championship in 1984 and went on to an NBA Hall of Fame career with the New York Knicks. Good luck Patrick! Go Hoyas! 🏀 (Full disclosure: I am an Adjunct Professor of Law at Georgetown Law.)
The North Carolina Tar Heels and the South Carolina Gamecocks on winning the Men’s and Women’s NCAA Basketball Championships, respectively.🏀
The Gonzaga Bulldogs and the Mississippi State Lady Bulldogs for great seasons and making their respective NCAA Basketball National Championship Games. Also congrats to Mississippi State for a thrilling win over the previously undefeated and defending champion UCONNHuskies in the National Semifinals.🏀
The UCONNHuskies women’s basketball program and their coach Geno Auriemma for their amazing, record-setting 111 game winning streak, ended by Mississippi State.🏀
Tony Romo for having the smarts to retire from the NFL and move to the broadcasting booth with his mind and body still largely intact. The now-former Dallas Cowboy’s star quarterback will be absolutely dynamite in the booth. And, he probably won’t be “sacked” as many times.🏈
The Washington Nats for a stirring opening day 4-2 victory over the Miami Marlins. Go Nats!⚾️
