"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.
Retired U.S. District Judge Nancy Gertner writes in HuffPost:
Justice Anthony Kennedy’s final writing as a member of the U.S. Supreme Court, his concurrence in the travel ban case, was a cri de coeur. It simply, even pathetically, lamented the court’s limited role in controlling a lawless executive.
Throwing up his hands, he wrote that the acts of government officials often are not subject to judicial scrutiny, while adding that this “does not mean those officials are free to disregard the Constitution and the rights it protects. The oath is not restricted to the actions that the Judiciary can correct.”
Wrong message, Mr. Justice.
Even though the travel ban the court upheld is not related to the asylum crisis — the travel prohibition is about immigrants coming here for all sorts of reasons, not asylum seekers fleeing violence in their country — to President Donald Trump, it does not matter. The high court’s decision is perceived as a vindication of all of his immigration policies, no matter how lawless, cruel and dysfunctional. And with Kennedy’s concurrence, it risks signaling that the judiciary will abdicate its own obligations to uphold our country’s laws and ideals.
Take “zero tolerance.” When asylum-seekers so much as step across the border, they are violating the law, according to this administration, even if they immediately present claims to an immigration official. The rule of law, the president insists, requires the prosecution of all crimes, no matter how trivial. This from the same man who pardoned former Arizona Sheriff Joe Arpaio after he was found guilty of flouting a court order to stop racial profiling.
Then there is the even more absurd claim that family separation deters asylum-seekers from coming to the U.S. Asylum-seekers will not be deterred by Trump’s cruelty; they have already decided to risk a dangerous trek from Central America to the U.S. because they believe their families will be killed if they stay. In fact, the number of asylum requests has increased notwithstanding Trump’s policies; its driving force is violence in asylum-seekers’ home countries, not U.S. immigration policy.
Nor are these asylum-seekers miscreants intent on defrauding the U.S. or committing crimes. This year, fewer than 1 percent of those apprehended have presented claims found to be false. Studies show that in general, undocumented immigrants — of whom asylum-seekers are a part — commit fewer crimes than those born in this country.
Worse, Trump now wants to deport asylum-seekers without any review. We don’t need more judges, he says, just more border cops. Where is the rule of law here?
HANDOUT . / REUTERS
A view of inside a U.S. Customs and Border Protection detention facility in Rio Grande City, Texas, last month.
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The Constitution’s due process requirement applies to anyone physically in the U.S., whether they have arrived legally or not. Likewise, international law requires us to review whether asylum-seekers’ claims of violence are credible, and if they qualify, let them in. And obviously, this government should not threaten to take children from their parents unless the families agree to voluntary deportation. That’s not just the absence of due process; it’s the presence of extortion.
If Kennedy signaled his belief that the court has very limited power to control an errant president, his putative replacement, federal Circuit Coury Judge Brett Kavanaugh, may well be worse. He does not just lament court’s limited power to control a president, he embraces it.
Kavanaugh has a particularly robust view of presidential power in certain areas — significantly, national security or immigration. In Klayman v. Obama, the D.C. Circuit ruled against a challenge to the National Security Agency’s metadata collection program on technical grounds, in a per curiam decision ― meaning an opinion of the entire court and not any individual judge. Kavanaugh, however, felt the need to file a concurring opinion.
Rather than simply signing on the decision, he went out of his way to make the breadth of the president’s national security power clear: Even if the collection program were the functional equivalent of a search, the government did not need to seek a warrant from a judge because the president said the program was necessary to combat terrorism and that need outweighed any impact on privacy.
Echoing Kennedy’s lament in the travel ban case, Kavanaugh added that while the chief executive and Congress may want to limit the program, until they do the judiciary was literally without the power to control it. Not only was the door to a constitutional challenge was firmly shut; he wanted to make certain that everyone knew it.
But there are judges who are not simply wringing their hands about the limits of judicial review over immigration issues, like Kennedy did, or who are bent on deferring to the president whenever he intones a national security rationale, as Kavanaugh might well do. They are working each day to prevent this president from running roughshod over the Constitution ― not just in the executive orders that he promulgates but in the way his orders and policies are implemented on the ground, in the day-to-day encounters on our borders.
A federal judge in California, a George W. Bush appointee, issued a nationwide injunction temporarily stopping the Trump administration from separating children from their parents at the border. Another in D.C. blocked the systematic detention of migrants who show credible evidence that they were fleeing persecution in their home countries, halting a practice that is an obvious and unlawful attempt to deter them and others from seeking refuge here.
There will surely be others, because these judges ― like the president ― also swore an oath to uphold the Constitution. But for them, unlike the president, it is not an empty promise.
Nancy Gertner served as a Massachusetts United States District Court judge from 1994 to 2011, when she retired to teach at Harvard Law School. Her first memoir, In Defense of Women, was published in 2011, and a judicial memoir, Incomplete Sentences, will be published in 2019.
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Almost everything that Trump and Sessions have said about asylum seekers and border policy is absurd — clearly refuted by the facts and by past failures.
Lies, racism, xenophobia, absurd positions, claims that are demonstrably false, just plain stupidity, fraud, waste, abuse, it’s all in a day’s work for Trump, Sessions, Miller, Nielsen, and the other White Nationalists firmly committed to the downfall of American democracy.
And, as Judge Gertner points out, they are aided and abetted by a spineless “go along to get along” Supreme Court majority unwilling to uphold their oaths of office and defend the Constitution and our country against the outrageously unconstitutional, cruel, unjustified, and immoral actions of the Trump Administration.
Can the lower Article IIIs stem the tide long enough for us to get “regime change” at the ballot box and save America? The answer is a resounding “maybe.”
Better get out the vote in November to throw the White Nationalists/Putinists and their fellow travelers out of office. Otherwise, it might be too late for the world’s most successful democracy.
Rosales Justo v. Sessions, 1st Cir., 07-16-18, published
PANEL: Torruella, Lipez, and Kayatt Circuit Judges
OPINION BY: Judge Lipez
KEY QUOTE:
In sum, the BIA’s justifications for its holding that it was clearly erroneous for the IJ to find that the Mexican government is unable to protect Rosales reflect multiple errors. The BIA failed to consider evidence of the Mexican government’s inability to protect Rosales and his nuclear family, as distinct from evidence of the willingness of the police to investigate the murder of Rosales’s son. That error in conflating unwillingness
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and inability was compounded when the BIA discounted country condition reports which, when combined with Rosales’s testimony about the particular circumstances of his case, were sufficient to support the IJ’s finding that the police in Guerrero would be unable to protect Rosales from persecution by organized crime.
The BIA committed further error by concluding that the IJ’s finding that Rosales did not report threats by organized crime to the police refuted the IJ’s ultimate finding of inability. The BIA both ignored our precedent stating that a failure to report a crime does not undermine an assertion of inability if a report would have been futile, and failed to consider evidence in the record that would support a finding of futility, thereby misapplying the clear error standard. Moreover, in another misapplication of the clear error standard, the BIA incorrectly concluded that the IJ’s inability finding was clearly erroneous because the Mexican government’s failure to protect Rosales was indistinguishable from the struggles of any government to combat crime, when the record before the IJ supported a finding that it was distinguishable.
Because of these errors, we grant Rosales’s petition and remand to the BIA for further proceedings consistent with this opinion. See I.N.S. v. Ventura, 537 U.S. 12, 16-17 (2002) (per curiam) (holding that remand to the BIA is generally the appropriate remedy when the BIA commits a legal error).
So ordered.
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Nice to see a Circuit Court, particularly a fairly conservative one like the First Circuit, take strong stand against the nonsense and mockery of Due Process and justice going on at EOIR under Sessions;
Expect more of these in the future as the “Just Find A Way To Deny & Deport” initiative by the xenophobic, scofflaw AG goes into high gear at EOIR;
Quite contrary to everything Sessions has been saying, which completely ignores the lessons of the Supreme Court’s decision in INS v. Cardoza Fonseca, asylum law is supposed to be interpreted and applied generously in favor of those seeking life saving protection;
This case illustrates the importance of dissent at the BIA, as the First Circuit basically adopted the correct interpretation of the law and facts set forth by a dissenting (female) BIA Appellate Immigration Judge;
This also shows the importance of full three-judge review by the BIA on asylum cases, rather than single judge panels or summary denials;
The number of fundamental errors committed by the BIA panel majority in reversing this asylum grant and the persistence of the DOJ in advancing untenable legal positions before the Court of Appeals is simply appalling, even if consistent with Session’s own lack of scholarship and total disrespect for fundamental fairness to respondents in Immigration Court;
This case also highlights a chronic problem in EOIR asylum adjudication: conflating “willingness to protect” with “ability to protect.” Too many Immigration Judges and BIA Appellate Judges seize on ineffective efforts by local police, cosmetic improvements by governments, and failure to seek (largely useless and perhaps actually harmful) police assistance to find that there has been “no failure of state protection;”
That’s exactly what Sessions himself did in his fundamentally flawed opinion in Matter of A-B-. He encouraged judges to conflate ineffective efforts to protect with actual ability to protect. And, his comparison of how domestic violence is policed and prosecuted in the United States with El Salvador’s pathetic efforts in behalf of domestic violence victims was simply preposterous;
This decision also addresses another chronic problem at EOIR: judges “cherry picking” the record and particularly Department of State Country Reports for the information supporting a denial, even though the record taken as a whole lends support to the respondent’s claim;
Once again, how would any unrepresented applicant make the kind of potentially winning asylum case presented by this respondent with the assistance of counsel? When are Courts of Appeals finally going to state the obvious: proceeding to adjudicate an asylum claim by an unrepresented respondent is a per se denial of Due Process!
This case should be taken as a message that Immigration Judges and BIA panels following the misguided Sessions’ dicta on “unwilling or unable to protect,” rather than applying the correct standards set forth by most Circuits are going to be getting lots of “do overs” from the Circuit Courts;
How could anybody justify “speeding up” a system with this many fundamental (and life-threatening) flaws to begin with? Under Sessions, EOIR is on track to becomes veritable “reversible error factory” — as well as a “Death Railroad!”
VICTORVILLE — Immigration detainees who were sent to a federal prison here last month were kept in their cells for prolonged periods with little access to the outside and were unable to change their clothing for weeks, according to workers at the facility and visitors who have spoken with detainees.
Staffers at the prison also say they have not been given the proper resources or direction to handle the influx of detainees, putting those in custody as well as workers in danger.
“We’re putting out fires, just like we were doing before,” said a worker who asked not to be identified for fear of retaliation. “But it’s gone from bad to worse to worst. We cannot take care of these inmates.”
The Victorville Federal Correctional Complex is a sprawling federal prison in San Bernardino County that houses thousands of inmates who have been convicted of crimes in federal courts.
By contrast, the immigrants who have been sent there are considered “civil” rather than criminal detainees, meaning they are being held pending the outcome of their immigration cases. Some are asylum seekers; some are fathers who were separated from their children in recent months.
They were sent to the prison in June as part of the Trump administration’s policy of increasingly detaining asylum seekers and immigrants who are in the country illegally until their cases are decided. Federal officials have said using prisons to hold the detainees is a stopgap measure while officials find more holding space.
Officials with the Federal Bureau of Prisons say the facility had beds available because of a decline in the inmate population in recent years, and that it has managed the new population using existing staff, some of whom were reassigned from other facilities.
But workers and people who have been able to visit the detainees say the prison was seriously unprepared for its new role.
The prison, which workers have long complained was short-staffed, is now scrambling to care for hundreds of new detainees from around the world with language, medical and care needs that are very different from those of typical federal prisoners, workers say.
The situation has raised concern among Democratic and Republican lawmakers.
In late June, Rep. Paul Cook (R-Yucca Valley) wrote a letter to U.S. Immigration and Customs Enforcement and the Bureau of Prisons urging officials to increase staffing levels at Victorville to match the increase in population.
“Furthermore, I urge ICE to support and train [prison] staff so they are properly equipped to implement policies and procedures that may be unfamiliar to them when dealing with immigration detainees,” Cook wrote.
Rep. Mark Takano (D-Riverside), who visited the facility July 2, said he saw numerous signs that the prison was struggling to meet detainees’ needs.
“Every detainee group that we met said they had not had a change in clothes since they arrived on June 8. Their bedding had not been switched. They were wearing the same underwear,” Takano said.
Thirteen of the detainees who spoke with Takano and his staff were fathers who had been separated from their children. The men said they had been unable to speak with their children since arriving at the facility.
Detainees also complained of not getting enough food, of being “locked up for long periods of time in their cells” and having very limited access to the outdoors, Takano said.
Prison officials showed Takano a recreation area that he said was nicely equipped. But when he asked one group of detainees whether they were able to use that room, they told him they had been there only once, he said.
“That’s an indicator to me that the prison was not ramped up to be able to accommodate this incursion of detainees. They were understaffed before the detainees arrived, and the arrival of 1,000 detainees I think has fully stressed the staff’s ability to be able to safely oversee their health and safety,” Takano said.
Nearly 1,000 immigration detainees were initially transferred to the prison. As of this week, 656 remained, said ICE spokeswoman Lori Haley.
The complex includes a high-security prison, two medium-security prisons and a minimum-security camp. The detainees are being housed in one of the medium-security prisons. Visits to the facility are tightly controlled.
Workers say one of their biggest concerns is the lack of staff and resources to adequately handle detainees’ medical needs.
There have been three cases of chickenpox and about 40 scabies cases since the detainees arrived.
One worker who spoke to The Times on the condition of anonymity for fear of retaliation said medical workers are stretched so thin they can address only detainees’ most urgent needs.
“We’re not finding illness because we are so rushed,” the worker said. “As patients, they’re not getting the care they need.”
After Takano’s visit, the worker said, detainees were given a change of clothing — but for many of them it was paper gowns normally reserved for inmates with specific medical needs.
Eva Bitran, an attorney for the ACLU who has met with two detainees at the facility, said both men told her they had struggled to get medical care.
One man told her about a button that detainees could push for emergency medical care. When that button was pushed, they were asked: “Are you being raped or are you dying?” When the answer was no, no help would come, the man told her.
One detainee who has since left the facility told The Times that he and others in his unit were locked in their cells for most of the day for the two weeks he was at the prison, with food passed through a small opening in the door.
The man said he was not given a change of clothes during the 14 days he was at the facility and was not able to bathe for the first four days.
In late June, the ACLU sued the Department of Homeland Security and the Bureau of Prisons on behalf of detainees, saying they had been held “incommunicado,” asking the court to order the prison to allow lawyer visits and phone calls.
U.S. District Judge Otis D. Wright II sided with the ACLU and granted a temporary restraining order June 21 requiring the prison to allow detainees to communicate with immigration attorneys and attend “know your rights” workshops.
Haley, the ICE spokeswoman, referred questions about conditions at the prison to the Bureau of Prisons and said ICE was deferring to that agency’s standards on questions of things such as access to time outside of cells and outdoors time.
In an email response to questions from The Times, Bureau of Prisons officials said, “[D]etainees have regular inside and outside recreational opportunities.”
Officials also said that since the detainees’ arrival, 25 medical staff members had been temporarily assigned to help with intake screenings, physical exams and general care.
Regarding the chickenpox and scabies cases, officials said the facility was “taking the necessary precautionary measures to protect staff, inmates and detainees, and the community, from the possibility of being exposed.”
John Kostelnik, president of the American Federation of Government Employees Local 3969, which represents workers at the prison, said that although some medical staffers were briefly assigned to help with the detainees, it was far from enough to meet the need.
He said many problems stem from a lack of direction from officials about how to reconcile standards that are common to federal prisons but aren’t necessarily appropriate for immigration detainees.
“We’re still day by day, making things up as we go,” he said.
As the facility has received increasing scrutiny from political leaders, legal groups and others following the transfer of detainees, Kostelnik said, some things appear to be improving — such as more uniforms.
But the staff is still overtaxed, said Kostelnik, who worries about what might happen if bigger changes don’t come fast enough.
“You have this group of detainees that are starting to get upset,” he said. “You get a large group of individuals that are upset, you have the potential for anything.”
(CNN)Authorities are investigating after an ICE detainee facing possible deportation apparently killed himself.
Efrain De La Rosa, 40, was found unresponsive in a cell at the Stewart Detention Center in Lumpkin, Georgia, on Tuesday night and was later pronounced dead at a hospital, Immigration and Customs Enforcement said.
The apparent cause of death was self-inflicted strangulation, the agency said Thursday, adding that the case is under investigation.
De La Rosa, a Mexican national, was in removal proceedings at the time of his death, ICE said.
The Georgia Bureau of Investigation is investigating the death at the request of the local sheriff. There is no indication of foul play, GBI Special Agent in Charge Danny Jackson said.
A preliminary investigation revealed De La Rosa was alone in an isolation cell at the detention center when officials there found him, Jackson said.
It was not immediately clear why De La Rosa had been placed in isolation.
ICE spokesman Bryan Cox said he could not provide additional comment because an agency review of the death is ongoing.
Amanda Gilchrist, a spokeswoman for CoreCivic, which owns and operates the facility, said the company is fully cooperating with investigators but declined to comment further because of the active investigation.
De La Rosa is the eighth detainee to die in ICE custody in the 2018 fiscal year, the agency said.
De La Rosa’s death comes less than six months after the death of another ICE detainee who had been in custody at Stewart.
Yulio Castro Garrido, a 33-year-old Cuban national, was diagnosed with pneumonia at Stewart and was hospitalized as his condition worsened. He died in January at the Mayo Clinic in Jacksonville, Florida.
And in May 2017, Jean Jimenez-Joseph, a 27-year-old Panamanian national, killed himself in solitary confinement at Stewart.
Immigrant rights groups swiftly criticized the facility as word of De La Rosa’s death spread.
“The deaths and systematic abuse at Stewart are not only tragic, but infuriating,” said Azadeh Shahshahani, legal and advocacy director at Project South.
ICE said it is conducting an agency-wide review of De La Rosa’s death and “is firmly committed to the health and welfare of all those in its custody.”
Four Democratic senators are calling for an investigation into the treatment of pregnant women detained in Immigration and Customs Enforcement (ICE) facilities, following a BuzzFeed News report on several women who said they were mistreated while in immigration detention.
The letter to the Department of Homeland Security Acting Inspector General John Kelly, sent Friday, cites BuzzFeed News’ reporting on the conditions pregnant women in ICE and Customs and Border Patrol custody have faced under the Trump administration, particularly following a new policy issued in December allowing pregnant women to be detained. Under the Obama administration, ICE was ordered to release pregnant women past their first trimester from custody.
“Recent reports cite the inadequate care that pregnant women receive while in ICE custody, pregnant women’s lack of access to medical care, and their heightened vulnerability to sexual assault,” the letter reads. “Given the multiple findings of harmful and substandard conditions of detention for this particularly vulnerable population, we ask that you open an investigation into the treatment and care of pregnant women in ICE detention facilities.”
The letter was organized by Sen. Kamala Harris and signed by fellow Democratic Sens. Patty Murray, Maggie Hassan, and Tom Carper. A spokesperson for Harris’s office told BuzzFeed News that Harris was working “with a group of senators on legislative options to address this as well.”
In a story published Monday, BuzzFeed News related the stories of three women who had miscarriages while in the custody of ICE and Customs and Border Patrol and said they did not receive adequate medical care while pregnant or miscarrying. One woman told BuzzFeed News she was physically abused by CBP officials. All three said they bled for days without medical care and all said they were shackled while pregnant at some point during their detention. Shackling pregnant women is prohibited by ICE’s and CBP’s most recent standards-of-care policies, as well as by a congressional directive.
The report also included interviews with 11 legal, medical, and advocacy workers who work with pregnant detainees in or near detention centers, as well as two affidavits signed under “penalty of perjury” in which a fourth woman described being given clothes so small for her pregnant belly they gave her welts and “pain in [her] uterus.” A fifth woman said she underwent repeated X-rays, despite this being against the Food and Drug Administration’s recommendations and against CBP’s(but not ICE’s) policies for pregnant women.
“Pregnant women have repeatedly described the fear, uncertainty, and exhaustion they experience as a result of being detained,” the senators wrote in Friday’s letter. “Detained pregnant women have stated they experience routine mistreatment, including malnutrition, inadequate bedding, insufficient access to basic medical care, lack of privacy regarding their medical history, and even shackling during transportation for medical care.”
The senators’ letter said there was a 35% increase in the number of pregnant women detained by ICE in the fiscal year of 2017 compared to the year before, under the Obama administration. During that year, ICE detained nearly 68,000 women, 525 of whom were pregnant, the letter stated, and an additional 590 between December 2017, when the policy change was issued, and April 2018.
In June, Harris toured Otay Mesa Detention center, where the three women BuzzFeed News spoke with were held while miscarrying. There, Harris met with mothers who had been separated from their children as a result of the Trump administration’s “zero tolerance” policy, which has triggered national outrage, court cases, and an executive order from President Trump.
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These human beings aren’t “inmates”
They “civil detainees”
Their only “crime” is seeking asylum under U.S. and international law
Their only mistake: believing that the United States is a nation of laws and human decency, not just another “Banana Republic” as it has become under Trump & Sessions
The solution: regime change
Another thought: The problems in civil immigration detention were well-known and well-documented before Sessions and his cronies established the “New American Gulag” to punish, duress, and deter asylum seekers:
Shouldn’t that result in eventual successful suits against Sessions for ethical violations and for civil damages for intentionally violating the Due Process rights of asylum seekers?
One fun example of the conservative judge’s take on workers’ rights is his dissent—the only one—in a case involving the SeaWorld trainer who was eaten by a killer whale during a performance in 2010, the third time the whale had been “involved in a human death.” While his colleagues upheld a prior ruling that the theme park had violated safety standards by “exposing . . . trainers to recognized hazards when working in close contact with killer whales during performances,” Kavanaugh thought that was bullshit, writing that lots of sports are dangerous, but that doesn’t mean the Labor Department should use its authority to implement regulations aimed at minimizing the chances that trainers will be eaten in full view of paying customers. “When should we as a society paternalistically decide,” Kavanaugh asked, “that the risk of significant physical injury is simply too great even for leager and willing participants? And most importantly for this case, who decides that the risk to participants is too high?” Presumably B-Kavs, as we imagine his fellow Yalies called him, also believes that coal-mining companies shouldn’t have to comply with onerous rules intended to prevent mine collapses—because those miners know what they’re signing up for, dammit.
Unsurprisingly, Kavanaugh’s take on the SeaWorld incidentdidn’t go over well with labor unions and workers’-rights groups, many of which have opposed his nomination. (“Judge Kavanaugh routinely rules against working families, regularly rejects the employees’ right[s] to receive employer-provided health care, too often sides with employers in denying employees relief from discrimination in the workplace, and promotes overturning well-established U.S. Supreme Court precedent,” AFL-CIO President Richard Trumkasaid in a statement.) But his opinion that trainer Dawn Brancheaubasically had it coming is just one of many that scare people who value things like workers’ rights, clean air, and consumer protection.
It’s also one of many items on Kavanaugh’s résumé that the administration is touting to the business community, in the hopes that it will help push his nomination through, per Politico:
The White House on Monday immediately played up Brett Kavanaugh’s pro-business, anti-regulation record and is asking industry trade groups for help pushing his confirmation through the Senate . . . With Republicans holding only a sliver of a majority in the Senate, deep-pocketed business groups could have enough influence, especially in an election year, to help swing votes in Kavanaugh’s favor.
In a one-page document, which was obtained by Politico, the White House wrote that Kavanaugh has overruled federal regulators 75 times on cases involving clean air, consumer protections, net neutrality, and other issues. Most recently, in PHH Corp. v. Consumer Financial Protection Bureau, he favored curtailing the power of independent federal regulators.
“Judge Kavanaugh protects American businesses from illegal job-killing regulation,” the White House bragged in its e-mail, adding that “Kavanaugh helped kill President Obama’s most destructive new environmental rules,” and has “led the effort to rein in unaccountable independent agencies.” Indeed, the nominee has in fact written that “independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances.” In a 2016 appellate-court case, he said that the Consumer Financial Protection Bureau was “unconstitutionally structured,” because its director cannot be fired by the president without cause, suggesting that, should it come to it, he’ll grant Acting Director Mick Mulvaney’s lifelong dream of seeing the agency burned to the ground.
Watch Now:
Michael Douglas Breaks Down His Career, From “Wall Street” to “Ant-Man”
Elsewhere, critics say that Kavanaugh’s time on the bench has been marked by “hostility to federal regulatory agencies trying to protect the environment.” According to Bill Snape,a senior counsel with the Center for Biological Diversity, Kavanaugh “sides with industry, he sides with deregulation, he sides with those who would have science be in retreat. He has been a dark force on the D.C. Circuit and now seems to have the opportunity to bring his bag of tricks to the Supreme Court.”
All of which, obviously, makes him the perfect candidate for Trump. Just something to remember should you work in an environment where you could be construed by colleagues as a tasty snack.
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Trump has no idea how NATO works
Here’s what the president of the United States tweeted on Tuesday, one day before the summit in Brussels:
In fact, that’s not how the alliance works at all. Members do not pay the United States, hence they cannot be “delinquent for many years in payments,” nor should they “reimburse the U.S.” Rather, as President Twitter is seemingly unaware, NATO is a collective defense organization whose members agree to defend one another in response to an attack by an outside party. While it was agreed that members will increase their defense spending levels to 2 percent of their G.D.P., they said they would do so by 2024, not whatever earlier date Trump has in mind. As is the case with most instances of the president saying or tweeting things that are factually inaccurate, one cannot, as New York’s Jonathan Chaitwrites, “rule out the possibility that Trump lacks the mental capacity to understand the basic form of America’s most important alliance.” But given his apparent hatred of NATOand desire to pull out of any multilateral agreements signed before he took office, it’s equally possible that, as Chait writes, Trump is “choosing not to understand this, so that he can precipitate a fissure within the alliance.”
Of course Rudy Giuliani is working for foreign clients while serving as the president’s lawyer
Giuliani said in recent interviews with The Washington Postthat he is working with clients in Brazil and Colombia, among other countries, as well as delivering paid speeches for a controversial Iranian dissident group. He has never registered with the Justice Department on behalf of his overseas clients, asserting it is not necessary because he does not directly lobby the U.S. government and is not charging Trump for his services.
His decision to continue representing foreign entities also departs from standard practice for presidential attorneys, who in the past have generally sought to sever any ties that could create conflicts with their client in the White House.
“I’ve never lobbied him on anything,” Giuliani told the Post,referring to Trump. “I don’t represent foreign government in front of the U.S. government. I’ve never registered to lobby.” Among the ex-mayor’s clients is the Mujahideen-e-Khalq, a.k.a. MEK, an Iranian resistance group that the State Department listed as a terrorist group as recently as 2012, from whom Giuliani said he has regularly received payments for the past decade.
Carrie Menkel-Meadow, a legal-ethics professor at University of California-Irvine told the Post that, obviously,it’s not a great idea for a lawyer serving the president to have foreign business clients because of the high probability they’ll have opposing interests. “I think Rudy believes because he is doing the job pro bono the rules do not apply to him,” she said, “but they do.”
Oops: the tax cuts might not juice the economy at all
Of course, given that this analysis is coming from economists at the Federal Reserve Bank of San Francisco, we assume anyone on Team Tax Cuts will write it off as pinko claptrap:
The tax cuts Republicans enacted in late 2017 will likely provide less of a boost to economic growth than many forecasters predict—and possibly none at all—economists at the Federal Reserve Bank of San Francisco said Monday.
That’s because the changes took effect at a time when the economy was already firing on all cylinders. As a result, there are fewer unemployed workers, spare resources, and idled factories ready to kick into action than there would have been during a downturn.
Citing a bevy of recent research, economists Tim Mahedyand Daniel J. Wilson said fiscal stimulus measures tend to make a bigger splash when there is more slack in the economy.
“The projected procyclical policy over the next few years may raise concerns regarding the nation’s fiscal capacity to respond to future downturns and its ability to manage the growing federal debt,” Mahedy and Wilson wrote. “However, it also has important implications for the macroeconomic impact of the fiscal stimulus represented by the [tax law] and the consequent increase in the deficit.”
Sell-side analyst chooses road less traveled in resigning from job
An irate sell-side analyst appears to have chosen a memorable way to resign—by uncorking a champagne bottle and spraying it around his boss’s office and then pouring the bubbly on the floor around the rest of the office.
A video of the after-hours rampage was posted to an Instagram account belonging to Francesco Pellegrino,formerly of Sidoti & Co.
Music is heard in the background of many of the video’s clips, including Whitney Houston’s “How Will I Know” and Marky Mark and the Funky Bunch’s “Good Vibrations.”
Pellegrino did not return the Post’s requests for comment. When asked about the office trashing, Sidoti said, “I don’t even know how to respond,” before hanging up.
Elsewhere!
Hedge Funds Facing Trump’s Trade War Crossfire Feel the Pain (Bloomberg)
McKinsey Ends Work With ICE Amid Furor Over Immigration Policy (N.Y.T.)
Elliott Management launches action to take control of AC Milan (Reuters)
Swiss Say 1MDB Used as Ponzi Scheme to Bribe Officials (Bloomberg)
Credit Suisse’s Paul Dexter Departs Firm After Intern Investigation (Bloomberg)
Elon Musk doesn’t like being called a billionaire (Twitter)
Morgan Stanley C.E.O. Candidate List Takes Shape with Promotions (Bloomberg)
Man solves 2,474 Rubik’s cubes one-handed in 24 hours (UPI)
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Yup. Standing up for the rights of the already overprivileged against the vulnerable masses. This Dude should make mincemeat out of the Bill of Rights. After all, the Founding Fathers wanted to protect corporations against the actions of individuals.
I can hardly wait for him to uphold reparations for the tea merchants so grievously harmed by those rowdy “patriots” during the highly illegal “Boston Tea Party.”
It was an outrageous assault on commerce, stability, private property, the rule of law, and societal order, as well as an affront to investors and the privileged! If anyone ever deserved to be eaten by Killer Whales, it was those lawless and scummy “Tea Partiers!”
B-Kavs is certainly a judge for whom common sense, humanity, reason, facts, and the US Constitution will never get in the way of protecting corporate privilege and GOP political interests. And, he’ll still be meting out injustice and inequality long after I’m gone.
PORT ISABEL DETENTION CENTER, Texas — Sitting before an immigration judge in this south Texas detention center Thursday, a Central American mother separated from her son pleaded for asylum.
“Your honor, I’m just asking for one opportunity to be here,” said the woman wearing a blue prison uniform and a red plastic rosary around her neck. “You don’t know how much pain it has caused us to be separated from our children. We’re kind of losing it.”
Judge Robert Powell’s face was stern. During the last five years, he has denied 79% of asylum cases, according to Syracuse University’s Transactional Records Access Clearinghouse.
“What you’re describing is not persecution,” he said.
“I’m asking for an opportunity,” the woman replied in Spanish through an interpreter.
“I’m not here to give you an opportunity.” He ordered her deported.
Immigrant family separations on the border were supposed to end after President Trump issued an order June 20. A federal judge in California ordered all children be reunited with their parents in a month, and those age 5 and under within 15 days. On Thursday, the administration said up to 3,000 children have been separated — hundreds more than initially reported — and DNA testing has begun to reunite families.
Port Isabel has been designated the “primary family reunification and removal center,” but lawyers here said they have yet to see detained parents reunited.
To qualify for asylum in the U.S., immigrants must prove they fear persecution at home because of their race, religion, nationality, political opinion or “membership in a particular social group,” and that their government is unwilling or unable to protect them. Most of the Central American parents detained here after “zero tolerance” fled gang and domestic violence. But that’s no longer grounds for seeking asylum, according to a guidance last month from Atty. Gen. Jeff Sessions. Immigration courts are part of the Justice Department, so judges are following that guidance.
Because immigration courts are administrative, not criminal, immigrants are not entitled to public defenders. And so, each day, they attempt to represent themselves in hearings that sometimes last only a few minutes.
The courtrooms are empty. That’s because, like others nationwide, the court is inside a fortified Immigration and Customs Enforcement detention center. Access is restricted, and may be denied. The Times had to request to attend court hearings — which are public — 24 hours in advance. After access to the facility was approved last week, admission was denied to the courtrooms when guards said the proceedings were closed, without explanation.
Detainees have little access to the outside world, including their children. It costs them 90 cents a minute to place a phone call. When they do, they can be nearly inaudible. They receive mail, but when reporters wrote to them last week, the letters were confiscated and guards questioned why they had been contacted, according to a lawyer. Lawyers also said some separated parents have been pressured into agreeing to deportation in order to reunite with their children.
UNICEF officials toured Port Isabel Thursday. A dozen pro bono lawyers visited immigrants. But they were spread thin. None represented parents at the credible fear reviews, where judges considered whether to uphold an asylum officer’s finding that they be deported.
Immigration Judge Morris Onyewuchi, a former Homeland Security lawyer appointed to the bench two years ago, questioned several parents’ appeals.
“You have children?” he asked a Honduran mother.
Yes, Elinda Aguilar said, she had three.
“Two of them were with me when we got separated by immigration, the other is in Honduras,” said Aguilar, 44.
“How many times have you been to the U.S.?” the judge asked.
Aguilar said this was her first time. The judge reviewed what Aguilar had told an asylum officer: That she had fled an ex-husband who beat, raped and threatened her. “He told you he would kill you if you went with another man?” the judge said.
Yes, Aguilar replied.
The judge noted that Aguilar had reported the crimes to police, who charged her husband, although he never showed up in court. Then he announced his decision: deportation.
Aguilar looked confused. “Did the asylum officer talk to you and explain my case?” she said.
The judge said he was acting according to the law.
Although she was fleeing an abusive husband, he said, “your courts intervened and they put him through the legal process. That’s also how things work in this country.”
Aguilar knit her hands. She wasn’t leaving yet.
“I would like to know what’s going to happen to my children, the ones who came with me,” she asked the judge.
“The Department of Homeland Security will deal with that. Talk to your deportation officer,” he said. Guards led her away as she looked shocked, and brought in the next parent.
Down the hall, Judge Powell heard appeals from separated parents appearing by video feed from Pearsall Detention Center to the west. Though he denied most asylum cases, there are exceptions. Recently, after an asylum officer denied a claim by a Central American woman who said police raped and threatened to kill her, Powell reversed that decision. She can now pursue her asylum claim, though she still hasn’t been released or reunited with her kids.
Obvious question: What, in fact, is a “judge” who isn’t there to give individuals fair hearings and treat them with respect, dignity, and humanity “there for?” What good is a judge who won’t protect individual rights from Government abuses? That’s the whole reason for our “Bill of Rights!”
Jeff Sessions regularly makes bogus, racist inspired claims about “fraud” in our asylum system. But, the REAL fraud in our asylum system is holding ourselves out as a nation of laws and Constitutional government instead of the Banana Republic we have become under Trump. And, maybe if this is what America is today, Trump is right: we don’t need any judges. Just jailers and executioners.
Donald Trump has ordered Central American refugees to get off America’s “lawn.”
On Thursday, the president reiterated his desire to deport asylum seekers without providing them access to the American legal system — a proposal that would violate American law, multiple binding international treaties, and the U.S. Constitution.
“Congress must pass smart, fast and reasonable Immigration Laws now,” the president tweeted on July 5, when Congress was not in session. “Law Enforcement at the Border is doing a great job, but the laws they are forced to work with are insane. When people, with or without children, enter our Country, they must be told to leave without our … Country being forced to endure a long and costly trial. Tell the people ‘OUT,’ and they must leave, just as they would if they were standing on your front lawn. Hiring thousands of ‘judges’ does not work and is not acceptable – only Country in the World that does this!”
Trump’s remarks come as his White House struggles to resolve its (self-engineered) crisis of border-enforcement policy. The administration would like to criminally prosecute all migrants who commit the misdemeanor offense of crossing the U.S. border illegally — including those fleeing violence or persecution in their home countries, who have a right under U.S. law to cross our border and then turn themselves into immigration authorities for the purpose of registering an asylum claim.
But many asylum seekers come to the United States with children in tow — and federal law forbids the government from imprisoning migrant children for longer than 20 days. Thus, the administration adopted its infamous policy of separating migrant families — sending migrant parents to jail, while placing their children in (supposedly) less restrictive forms of confinement, or else with sponsor families. This led to our government willfully traumatizing hundreds of small children; which led to a broad, bipartisan backlash; which led Trump to sign an executive order instructing the federal government to jail migrant families together (in defiance of judicial rulings barring that practice).
There are practical ways of resolving the administration’s family-detention dilemma. Officially, the administration’s insistence on imprisoning asylum seekers is grounded in the belief that migrants who are allowed to await court proceedings outside of federal detention will simply abscond into the interior of the country (a.k.a. “catch and release”). But that worry could be resolved by providing asylum seekers with ankle monitors. The Department of Homeland Security has used such monitors to track a small portion of asylum seekers for two years now; and migrants with ankle bracelets have complied with court appearances 99.6 percent of the time. Outfitting all asylum seekers with ankle monitors — instead of detaining them — would save the federal government millions of dollars, while also resolving the humanitarian problems posed by family detention.
But if the Trump administration finds ankle monitors insufficiently cruel, it could at least throw its support behind expanding the ranks of immigration judges. If the government could rapidly process asylum claims, it would not have to detain families for months on end. Currently, the U.S. has 334 immigration judges; experts believe that hiring an additional 364 such judges would allow the courts to get through the large backlog of pending deportation cases. To that end, Texas senator Ted Cruz has put forward a bill that would bring the total number of immigration judges up to 750.
But Trump has denounced all viable solutions to the White House’s problem. The White House’s aversion to ankle monitors isn’t hard to understand — the administration has signaled that it believes treating migrants cruelly is an effective means of deterring future migrants. By contrast, the president’s loud opposition to hiring more immigration judges is simply baffling.
The United States already deports many undocumented immigrants without allowing them to appear before an immigration judge. In fact, expedited removals — which is to say, removal orders issued to individuals who have been ordered to leave the U.S. previously — account for the vast majority of deportations.
But both U.S. and international law prohibit the expedited removal of asylum seekers. And it’s unlikely that there are 50 votes in the U.S. Senate for repealing that law and breaking the relevant treaties — let alone, the 60 necessary for passage. Meanwhile, Trump’s broader proposal to deny migrants all forms of due process — and to simply eject them from the country like rowdy teens on a front lawn — would require a constitutional amendment to enact.
Given these facts, it’s hard to fathom why the president wouldn’t want to increase the pace of deportations by hiring more immigration judges — a measure that could ostensibly pass Congress if he put his weight behind it, and provided some minor concessions to Democrats.
And yet, this irrational intransigence is of a piece with Trump’s broader approach to immigration policy. The president has repeatedly refused to accept funding for his border wall because it wasn’t paired with steep reductions to legal immigration — which only 38 Senate Republicans support.
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I agree with Levitz that Trump already appears to be winning the war on asylum seekers. Racist xenophobic zealot Jeff Sessions runs the Immigration Courts and the BIA. “Go along to get along” Article III courts like the Third Circuit and the Supremes are willing to “swallow their whistles” when it comes to outing overt racism, religious bigotry, and parodies of Due Process in our Immigration Courts. More “captive judges” would be a “cheap and easy” way of speeding up the deportation express while even adding a patina of “fake Due Process” so that the Article IIIs can more easily rubber stamp the results. Chief Justice John Roberts and his “Supreme Gang of Five” have already shown how easy it is to bury the Constitution when it comes to immigration.
And, don’t forget that Sessions is already well on the way to insuring that asylum applicants are removed without fair hearings. He essentially directed Asylum Officers and Immigration Judges to summarily deny all of the most viable claims coming from Hispanic refugees from Central America. Meanwhile, the Article III courts continue to adopt creative ways to ignore the obvious trashing of Due Process going on in the “credible fear” process.
But, even that isn’t enough to keep Trump’s White Nationalist base revved up. By calling outright for the overthrow of our Constitution, he is really casting light on what he, Sessions, and their fellow White Nationalist sycophants already are doing. That might be a mistake. It will further energize the resistance — the many Americans still willing to stand up for the Constitutional rights of everyone in America – even in the age of Trump.
Interesting, and not just a little discouraging, that so many of those who took an oath to uphold our Constitution aren’t willing to do so, while those outside of our corrupt government and weak-kneed courts are the only ones standing up for our Constitutional protections and individual rights!
S.E.R.L. v. Att’y Gen., No. 17-2031, 3rd Cir., July 3, 2018
HOLDING: Latinas fleeing persecution in the Northern Triangle can expect no protection under U.S. asylum laws in the Third Circuit.
PANEL: Circuit Judges Kent Jordan, Cheryl Ann Krause; Senior Circuit Judge Ira Morton Greenburg
OPINION BY: Judge Kent Jordan
KEY QUOTES:
S.E.R.L., a native of Honduras, seeks review of the denial of her application for asylum and statutory withholding of removal based on membership in a proposed particular social group that she characterizes as “immediate family members of Honduran women unable to leave a domestic relationship[.]”2 (Opening Br. at 21.) She fears persecution by two men, Jose Angel and Juan Orellana. Jose Angel abducted, raped, and continues to stalk one of S.E.R.L.’s daughters, K.Y.R.L. That daughter has already been granted asylum in the United States. Juan Orellana is S.E.R.L.’s stepfather and has repeatedly abused S.E.R.L.’s mother. S.E.R.L. fears that if she is removed to Honduras, both men will persecute her, Jose Angel because of her relationship to her daughter, and Juan Orellana because of her relationship to her mother.S.E.R.L. and two of her children fled here from Honduras in 2014. Within a month of their unlawful arrival, the Department of Homeland Security initiated removal proceedings pursuant to INA § 212(a)(6)(A)(i). S.E.R.L. conceded removability, and timely applied for asylum and statutory withholding of removal.4 In support of her claims for relief, she alleged past persecution and a fear of future persecution based on the relationships just noted.
. . . .
S.E.R.L. contends that the BIA’s change innomenclature from “social visibility” to “social distinction” is the only change the BIA has made to its test for assessing a“particular social group,” and, she says, that is a “distinction without a difference.” (Reply Br. at 5.) According to S.E.R.L., our decision in Valdiviezo-Galdamez forecloses application of the “particularity” and “social distinction”requirements. She also argues that the BIA plainly acknowledges that it has not changed course, nor has itprovided a “principled” explanation for why it continues to impose criteria we rejected in Valdiviezo-Galdamez. (Opening Br. at 31.)
In addition, those who have filed amicus briefs in this case point out that the BIA’s decisions in M-E-V-G- andW-G-R- could be read as inconsistent with certain other BIA decisions and contrary to the canon of ejusdem generis. Amici note, for example, that in W-G-R-, the BIA concludedthat “‘former members of the Mara 18 gang in El Salvadorwho have renounced their gang membership’ does not constitute a particular social group” in part because “the group could include persons of any age, sex, or background.”26 I. & N. Dec. at 221. Yet, even though the groups varied significantly across age, sex, and background, the BIA has also held that “Filipinos of Chinese [a]ncestry” constituted a “particular social group,” In re V-T-S-, 21 I. & N. Dec. 792, 798 (BIA 1997), and that “former member[s] of the national police” in El Salvador, Fuentes, 19 I. & N. Dec. at 662, likewise could be cognizable.15 And although the BIA expressly justified its new requirements as “[c]onsistent with the interpretive canon ‘ejusdem generis,’” M-E-V-G-, 26 I. & N. Dec. at 234, amici highlight that some of the enumerated grounds for persecution, including “political opinion,” and “religion,” 8 U.S.C. § 1101(a)(42)(A), may themselves be thought of as amorphous, diffuse, or subjective and therefore as insufficient bases for PSGs under M-E-V-G-’s requirements.
Those critiques raise legitimate concerns. The BIA has chosen to maintain a three-part test for determining the existence of a particular social group, and it has discussed how the revised particularity and social distinction requirements are not a departure from but a ratification of requirements articulated in its prior decisions. M-E-V-G-, 26 I. & N. Dec. at 234. And the arguable inconsistencies in its precedent highlight the risk that those requirements could be applied arbitrarily and interpreted to impose an unreasonably high evidentiary burden, especially for pro se petitioners, at the threshold. At the same time, however, we recognize thatM-E-V-G- is a relatively recent decision and clarity and consistency can be expected to emerge with the accretion of case law. That process is aided by M-E-V-G- itself, which addressed the specific concerns we raised in Valdiviezo- Galdamez, and explained why the particularity and social distinction requirements are different from one another and necessary. We now consider each of those requirements, beginning with social distinction, to explain why, notwithstanding our concerns, we conclude that the requirements are reasonable and warrant Chevron deference.
. . . .
Although S.E.R.L. also relies heavily on Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014), where the BIAhad held that “married women in Guatemala who are unable to leave their relationship” constituted a particular socialgroup, the Attorney General recently issued a decision overruling A-R-C-G-. See Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018).
. . . .
At the same time, we are mindful of the role that courts can and must play to ensure that agencies comply withtheir “obligation to render consistent opinions,” Chisholm v. Def. Logistics Agency, 656 F.2d 42, 47 (3d Cir. 1981), including, as relevant here, review of BIA decisions for inconsistent application of M-E-V-G’s requirements to similarly situated petitioners, routine rejection of proposed PSGs without reasoned explanation, and the imposition of insurmountable evidentiary burdens that would render illusory the opportunity to establish a PSG. However, just as we will carefully examine cases on petition for review to guard against such dangers, we anticipate that the BIA will scrutinize the IJ decisions that come before it with those considerations in mind and with an eye towards providing clear guidance and a coherent body of law in this area.
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3RDCIRCUIT’S JULY 4 MESSAGE TO ABUSED LATINAS: YOUR LIVES DON’T MATTER! – S.E.R.L v. Att’y Gen., JULY 3, 2018 – How “Go Along To Get Along” Judging Costs Innocent Lives!
By Paul Wickham Schmidt
U.S. Immigration Judge (Ret.)
Judge Kent Jordan, Judge Cheryl Ann Krause, and Senior Judge Ira Morton Greenburg of the U.S. Court of Appeals for the Third Circuit got together in Philly, ”our nation’s birthplace,” on July 3, 2018 to deliver an early July 4 message for courageous Latinas fleeing the Northern Triangle: Your lives don’t matter; we’re OK with femicide, rape, torture, and abuse of you and your children as long as it’s out of sight, out of mind in some foreigncountry where we don’t have to listen to your screams or come across your mutilated bodies!
These judges’ names and faces are worth remembering, since they went to such great lengths to avoid taking or acknowledging any legal or moral responsibility for their own actions. Obviously, they don’t want anyone to put names and faces with consequences.
While you wouldn’t recognize it from their 43 pages of intentionally legalistic, opaque, de-humanized, gobbledygook, there is actually a simple straightforward human tragedy behind their obfuscation and task shirking. Since they won’t tell it, I will.
“Ms. S.E.R.L”. (I’ll call her “Susana”) is a native and citizen of Honduras. Honduras is a patriarchal “failed state” with a corrupt and incompetent government that does little or nothing to control gang violence and violence against women, even encouraging it or participating in the abuses in many cases. By 2015, femicides in Honduras had far surpassed “epidemic levels.” For example, in 2013, one Honduran woman was murdered every fourteen hours!
Jose Angel abducted, raped, and continued to stalk Susana’s daughter “Karla.” Susana’s stepfather, Juan Orellana repeatedly abused Susana’s mother without any interference from the government. Juan also threatened Susana personally. Having witnessed what these men did to her closest relatives, her daughter and her mother, Susana reasonably believed that she would be next. Karla was granted asylum in the U.S. Susana fled to the United States with two other daughters and applied for asylum.
Since Karla was granted asylum in the U.S., Susana expected the same humane treatment, particularly since our Supreme Court once said that asylum laws should be generously applied to those with as little as a 10% chance of being persecuted. After all, Honduran women are a distinct, well-recognized class subject to essentially uncontrolled specifically gender-based violence in a patriarchal society. Additionally, the family members closest to Susana had already suffered severe harm in Honduras at the hands of two specific men. And, her daughter Karla was being allowed to stay.
The Immigration Judge supposedly believed Susana. However, he came up with some creative ways, pioneered by the BIA, to deny her protection. First, he found that she had no reason to fear harm because she hadn’t actually been harmed or killed by either Jose or Juan, despite the threats to her from Juan who obviously was capable of inflicting severe harm. Second, he found she didn’t fit within any “particular social group,” whatever that might mean on a particular day. The went on to make the amazing finding that being a Honduran woman would have nothing to do with the harm anyway.
Perhaps, the judge believed that Honduran men suffered the same high rate of femicide as did women. Or, maybe he believed that guys like Jose and Juan and Honduran society in general wouldn’t recognize that Susana was a Honduran woman closely related to two previously abused Honduran women. The judge observed that refugee laws weren’t meant to protect women like Susana from “generalized violence,” even though Susana’s claim wasn’t based on generalized violence but rather specific violence directed at her.
The judge basically told Susana to buck up and accept her fate. The judge appeared to have no idea what actually happens to women like Susana in Honduras. Susana appealed to the BIA which had very recently found that a virtually identical situation qualified a woman for asylum. But, the other woman wasn’t Susana, and the BIA found some reasons why it was OK to send Susana back to where she might reasonably expect be killed, raped, or abused by Jose and/or Juan.
Susana appealed to a “real court”, the Third Circuit Court of Appeals. Unlike the Immigration Judge and the BIA, judges on the Third Circuit don’t work for Attorney General Jeff Sessions. Jeff hates foreign nationals, women, and particularly brown-skinned foreign women fleeing from persecution in Central America. He thinks that they are all coming here for economic reasons and should just go stand in a line to immigrate. But, Jeff knows that the line doesn’t really exist, and that they will likely be killed or disabled shortly after return anyway. What Jeff really wants is an America where only nasty old White guys like him hold all the power and non-White folks stay away.
Judge Kent Jordan, Judge Cheryl Ann Krause, and Senior Judge Ira Morton Greenburg decided Susana’s case. They recognized that the BIA had rewritten asylum law so that fewer individuals would be protected and more rejected. They also recognized that Jeff Sessions had further rewritten the laws so that women like Susana would have no chance of protection. They also knew that there were lots of good arguments against what the BIA and Jeff were doing and in favor of protecting Susana.
But the judges found another Supreme Court case saying that they really didn’t have to decide legal questions if Jeff Sessions and his subordinates had done it for them. They thought that it made sense to rewrite protection law so that very few people, particularly women of color, would be protected. According to their thinking, the asylum law is intended to reject, not protect. They also thought that because these were relatively new interpretations, Jeff and the BIA should have a chance to kill or harm as many Latinas as possible before they as judges might think about whether it was a good idea. Of course, by then, it would be too late for Susana and others like her. And, these judges don’t really have any intent or will to hold Sessions accountable anyway.
So, Judge Jordan, Judge Krause, and Judge Greenburg told Susana that she should be separated from her daughter Karla and go back to Honduras with her other daughters to die, be raped, be beaten, or whatever. They knew that she would receive no help from the Government. But, they just didn’t care. Because Susana and her daughters were not their daughters or granddaughters and they wouldn’t have to hear her screams or look at their dead bodies. But, history has recorded what they did. Let the slaughter of innocents commence.
Better, more courageous judges might have said the obvious: that “women in Honduras” are a particularized, distinct, immutable/fundamental protected group; that Susana is a member of that group; and that any reasonable person in her position would have an objectively reasonable fear of persecution if returned to Honduras.
They also could have castigated the BIA and Jeff Sessions for intentionally manipulating asylum law so as not to grant protection to some of the most vulnerable and needy refugees among us. But, this “Gang of Three’ who decided Susana’s case would have been happy pushing the St. Louisand its cargo of Jewish refugees from Germany back out to sea again. Any of the judges who looked at Susan’s case could have had spoken out for saving her life and the lives of her daughters. None did!
After abdicating their judicial functions to hold the Executive accountable, this “Gang of Three” dishonestly expresses concerns about consistency and not creating “insurmountable evidentiary burdens.” Get serious!
Everyone knows Jeff Sessions is ordering Immigration Judges to crank out more removal orders with little or no Due Process. He has publicly stated his disdain for asylum seekers and women asylum seekers from the Northern Triangle. He has made it clear that he intends to “deconstruct:” the entire U.S. protection system until the only “consistency” will be that nobody gets asylum. And with cases like his decision in Matter of A-B-and spineless “go along to get along” precedents like this from the Article III courts, Sessions is implementing his real plan – insuring that nobody who comes to the border and seeks asylum passes “credible fear” and even gets to an Immigration Judge hearing.
Judges like these can shirk their responsibilities and hide behind mountains of hollow words and legal platitudes. But, they won’t escape the judgement of history for their lack of courage, backbone, integrity, and their unwillingness to stand up for human rights and human decency in the face of tyranny.
Happy July 4, 2018 from Judge Kent Jordan, Judge Cheryl Ann Krause, and Senior Judge Ira Morton Greenburg of the U.S. Court of Appeals for the Third Circuit! They can celebrate. But, for Susana, her family, and other vulnerable refugee like her, there will be no celebration. Indeed, they might not even live to see another July 4! That should make us all ashamed as a nation!
(1) An applicant who is subject to being barred from establishing eligibility for asylum or withholding of removal based on the persecution of others may claim a duress defense, which is limited in nature.
(2) To meet the minimum threshold requirements of the duress defense to the persecutor bar, an applicant must establish by a preponderance of the evidence that (1) he acted under an imminent threat of death or serious bodily injury to himself or others; (2) he reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting; (3) he had no reasonable opportunity to escape or otherwise frustrate the threat; (4) he did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting; and (5) he knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others.
CONCURRING & DISSENTING OPINION: Judge Garry d. Malphrus
KEY QUOTE FROM MAJORITY:
In a decision dated May 31, 2005, an Immigration Judge denied the applicant’s applications for asylum and withholding of removal but granted his request for deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) (“Convention Against Torture”). On February 7, 2006, we dismissed the appeals of both the applicant and the Department of Homeland Security (“DHS”).1 This case is now before us on remand pursuant to a decision of the United States Supreme Court in
1 The DHS does not now challenge the applicant’s grant of deferral of removal under the Convention Against Torture.
Negusie v. Holder, 555 U.S. 511 (2009). Having reviewed the record and the arguments presented by the parties and amici curiae, we will again dismiss the applicant’s appeal.2
We conclude that duress is relevant in determining whether an alien who assisted or otherwise participated in persecution is prevented by the so-called “persecutor bar” from establishing eligibility for asylum and withholding of removal under sections 101(a)(42), 208(b)(2)(A)(i), and 241(b)(3)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i), and 1231(b)(3)(B)(i) (2012), and for withholding of removal under the Convention Against Torture pursuant to 8 C.F.R. § 1208.16(c) and (d)(2) (2018).3 In this decision, we set forth a standard for evaluating claims of duress in this context. Applying that standard to the uncontested findings of fact in the record, we conclude that the applicant has not established that he was under duress when he assisted in the persecution of prisoners who were persecuted under his guard in an Eritrean prison camp.
KEY QUOTE FROM DISSENT:
The United States Supreme Court remanded this case for us to make an “initial determination of the statutory interpretation question,” Negusie v. Holder, 555 U.S. 511, 524 (2009), “with respect to whether an alien who
was coerced to assist in persecution is barred from obtaining asylum in the United States,” id. at 525 (Scalia, J., concurring). The remand directed us to interpret the statute anew based on principles of statutory construction, free of our prior assumption that Fedorenko v. United States, 449 U.S. 490 (1981), definitively resolved this question. The majority decision is artfully drafted, but it does not engage in this analysis. Instead, the majority reads a duress exception into the 1967 United Nations Protocol Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967; for the United States Nov. 1, 1968) (“Protocol”), and, by extension, the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (“Refugee Act”), that simply does not exist. And it does so essentially by deferring to international expectations of how the Protocol should be interpreted. I cannot agree with this approach.
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Wow! Deferring to international interpretations and expert interpretations from the UNHCR that actually give an asylum applicant a very circumscribed break for actions he or she was forced to take. Very “Un-Boardy.” Could actually be “career threatening.” No wonder Judge Malphrus wanted to separate himself from any such rational and reasonable actions in the “Age of Sessions & Trump.”
9 years in the making, during which the DHS position changed several times, is a pretty good argument against “Chevron deference” (a/k/a “task avoidance by life-tenured Article III Judges”). What were Immigration Judges supposed to do during those 9 years?
Odds on whether or how long it will take “Gonzo” to intervene?
Justice Anthony Kennedy delivers speaks at the White House on April 10, 2017, in Washington.
Chip Somodevilla/Getty Images
It was always more fan fiction than reality that Justice Anthony Kennedy was a moderate centrist. Democrats liked to soothe themselves with the story that Kennedy was a moderate because he’d provided the fifth vote to support continued affirmative action, reproductive rights, and gay rights and had strung the left along with the tantalizing promise of someday finding an unconstitutional political gerrymander. But we always knew that Kennedy was a conservative, indeed a very conservative conservative. Recall that in the famous study done in 2008 by Richard Posner and William Landes, “Four of the five most conservative justices to serve on the Supreme Court since the time of Franklin Roosevelt, including [John] Roberts and [Samuel] Alito, are currently sitting on the bench today.” And Kennedy? He was ranked in that study as the 10th most conservative justice in the past century.
To the extent we wrote paeans to Kennedy, it was for his occasional defections in areas that materially affect the lives of millions of people—women, minorities, LGBTQ couples, voters, Guantanamo detainees. And to be sure, each of those votes was well worth it. But we knew that for each such vote, there was a Bush v. Gore, a Citizens United, a Shelby County. And this term ended, perhaps fittingly, with Kennedy voting with the conservatives to hobble public-sector unions, to support mandatory arbitration clauses and voter purges, and to increase the unchecked power of an already imperial presidency. As Richard Hasen noted on Tuesday, Kennedy’s work here was clearly done. His concurrence in the Muslim ban case essentially signaled that Kennedy had all but given up on the notion of the judiciary as a meaningful check on the other two branches. As Hasen correctly called it, that concurrence landed as “a general statement of judicial powerlessness to solve social problems and an abdication of responsibility on the part of the courts to enforce key parts of the Constitution, in favor of a plea for self-restraint on the part of elected officials.” From a man who devoted a career to the proposition that the courts alone could fix things, it sounded in the key of “I’m out.”
The man who wanted everyone to speak to one another civilly and respectfully did what everyone else has done this year and threw in thetowel.
There will be myriad theories and hypotheses about why Kennedy all but gave up on his project of centrism, civility, norm preservation, and institutional self-preservation this year. I’ve never heard him speak so eloquently as when he was defending those values and celebrating the extraordinary role American courts and judges have played to foster such values in democracies around the world. One senses in his cri de coeur in NIFLA, Tuesday’s abortion-speech case, that he is viscerally bothered by progressive states like California attempting to be “forward thinking” (read: authoritarian) when it comes to truth in advertising around reproductive options. One senses in his vision of uncivil discourse in the Masterpiece Cakeshop case a growing frustration with what he sees as impolite discussions about religious liberty issues he wanted us to discuss civilly. One senses in his concurrence in the travel ban case a sort of stutter-step apology to “an anxious world” that watches the norms and institutions of constitutional democracy crumble.
As Mark Stern and I noted on Tuesday, it was hard to see Kennedy’s concurrence in that case as anything more than a concession that the last adult in the room was now leaving the building. Maybe it’s a fitting end to his career to say that the man who wanted everyone to speak to one another civilly and respectfully did what everyone else has done this year and threw in the towel. It’s hardly a stretch to say that Kennedy’s lasting caution from Obergefell—the marriage equality decision—was his request that the nation resolve the oncoming conflict between gay rights and religious dissenters by “engag[ing] those who disagree with their view in an open and searching debate.”
Yeah, that didn’t happen.
And so the formerly “centrist” Anthony Kennedy ended his Supreme Court career by taking sides, not simply in the spate of bombshell 5–4 decisions that came out in recent weeks. He took sides in a rhetorical war about the suffering of Christian bakers and pregnancy centers, and the language of “no you’re the radical” he now directs at liberals with whom he could once find common cause. It wasn’t so much that Kennedy ever represented the “center” of the court. He was no more the center than John Roberts will be the center of a vastly more conservative post-Kennedy Supreme Court. But Kennedy did become, for a time, a symbol of certain values around judging and justice—of acute concern that both sides be heard, of respect for the rule of law, and of solicitude for at least some communities that were invisible to his colleagues on the right. And to the extent that this was the center, it is perhaps apt that it falls away at the end of this term. Those institutional and rhetorical values feel like the relic of another time. Neither Sonia Sotomayor nor Samuel Alito has any patience for that kind of signaling anymore.
Democrats should rightly be terrified that Kennedy’s legacy around gay rights, reproductive rights, affirmative action, some kinds of racial justice, and student prayer are in immediate peril. And Democrats can now be fully assured that the Supreme Court will not step in to stop Donald Trump’s excesses. And to be sure, the reason the court will not stand up to future acts of Trumpism is that Kennedy, who tried to be the bridge at the court for so many decades, gave up and joined Team Trump.
Many of us predicted that Kennedy would not allow Trump to replace him with someone who would dismantle his legacy. We were wrong. Many of us believed that a lifelong devotee of dignity, civility, and the rule of law would not want his work tarnished by a president who routinely attacks individual judges and the very notion of an independent judiciary. We were wrong. That two of Anthony Kennedy’s last judicial acts included a letter that opened “My dear Mr. President” and a vote to grant that same president a virtual blank check on the national security front certainly suggests that nothing about a president who lies, bullies, and destabilizes the rule of law was any kind of real impediment to Kennedy’s departure.
We will debate in the coming months whether Kennedy tacked back to the right this year or if he was never anything but a staunch conservative who enjoyed occasional casual day trips to the left side of the bench. But one thing is beyond doubt: If there was anything like a “moderate center” inside the only branch of government not broken by polarization, it’s gone. Even the idea of such a thing is gone. For any of us who clung to such symbols, it’s a bracing reminder that there is no longer a center, or even a center built of make-believe.
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Trump diminishes and corrupts every sycophant and toady, robed or not, who associates with, supports, or helps enable him and his White Nationalist Empire. Kennedy is no exception. Law is in the here and now. Actions speak louder than words. A judge is part of the problem or part of the solution. Kennedy has cemented his position among the former by failing to take action to be part of the latter.
When Magistrate Judge Peter E. Ormsby stepped into the federal courtroom here Tuesday morning, 75 defendants rose to their feet.
Their ankles were shackled, and they wore headsets through which the proceedings would be translated into Spanish. In the hallway, just beyond the door, was a pile of handcuffs that had been removed before they entered the courtroom.
Most of the defendants appeared dressed in the same filthy, sweat-saturated clothes they had been wearing two days before, when they were apprehended crossing the Rio Grande aboard rafts.
In all but 11 of their cases, this criminal misdemeanor was the first time they had ever been found to have violated U.S. law.
Ormsby informed them his was not an immigration court. Many had already signed away their rights to further proceedings and had orders for what is known as “expedited removal.” They had done that before the 17 lawyers of the public defender’s office had met with any of them for the first time, just hours before.
The next two hours would see each one of them plead guilty and be sentenced, most to time already served.
With few exceptions, each case would be dealt with in under 75 seconds.
This was just the morning docket. It is what President Trump’s “zero tolerance” policy looks like here, where busloads of recently detained migrants roll up to the federal courthouse several times a day. Ormsby invited me and a handful of other observers there to sit in the jury box, because there was no room anywhere else.
The president contends that even this assembly-line version of justice is more than what those caught entering the country illegally should get.
“We cannot allow all of these people to invade our Country,” Trump tweeted Sunday. “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order.”
On that latter point, the president is correct — but it is for the reverse of the reasoning he offers. His zero-tolerance policy is putting even more stress on a legal system that already gives migrants far less than their day in court.
The outcome for many might be different if they had fuller access to the legal system, to which they are entitled in theory if not practice, and given an opportunity to make their case to stay in this country.
Trump has mocked proposals for adding to the number of immigration judges, who handle separate proceedings for those who want to remain.
“We have thousands of judges already,” he has claimed. That is incorrect. The number actually stands at fewer than 350 across the country. They are facing a backlog of more than 700,000 cases.
Just as critical as the scarcity of judges is the fact that so few migrants ever have a chance to consult an attorney.
Only about 14 percent of those who are detained have access to counsel, says American Bar Association President Hilarie Bass, who was here from Miami. She added that migrant adults with lawyers win slightly more than half their cases and get to stay in this country, while 9 out of 10 of those without representation lose and are deported.
For unaccompanied children, the disparity in outcomes is even greater. As Bass noted: “How can you ask a 12-year-old to walk into court and make a case for themselves?”
Under Trump’s zero-tolerance policy, more migrants are being prosecuted and deported on the border, rather than being sent to other parts of the country where they can await trial while staying with relatives or others who can take them in. That has compounded the challenge, because it adds to the backlog in this region and makes it more difficult for migrants to find lawyers.
In the current crisis, platoons of lawyers are arriving weekly to volunteer their services, but there are not nearly enough, says Kimi Jackson, director of the South Texas Pro Bono Asylum Representation Project. “What we need most here are Spanish-speaking immigration attorneys, particularly ones who can stay a little longer.” The need will remain for the foreseeable future, long after the journalists and cameras have moved on to the next story.
And even if help comes, it will be too late for most of those who appeared before Ormsby. As he worked his way through their cases, he expressed sympathy for the circumstances of poverty and violence that brought them from dangerous places in Honduras and El Salvador and Mexico to his courtroom. He wished them and their families well and urged them to go through the process of coming to the United States legally.
“Seeing the type of people you appear to be,” the magistrate added, “I hope that you will be successful with that.”
But everyone there knew that was a wish, and one unlikely to come true.
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Mostly first offenders who didn’t belong in criminal court anyway.
Why would nonviolent first offenders be shackled in court?
Anybody understand what they are pleading guilty to?
Everybody understand that they have a right to a full trial at which the Government would have to prove guilt?
Anybody understand what a port of entry is?
Anybody just looking for an officer to apply for asylum?
Anybody realize there are strong legal arguments that criminal sanctions can’t be invoked against good faith asylum seekers under international treaties to which the U.S. is party?
Anybody know the name of their court-appointed lawyer?
Anybody have a chance to speak with their lawyer in private in Spanish?
Anybody have a “know your rights” presentation about the immigration system?
Anybody know what a “credible fear” interview is, how to request one from the DHS, and how to get review of a denial?
Anybody know that asylum applicants who pass credible fear can request bond?
Anybody understand the consequences of a conviction?
Anybody pressured to plead guilty to get their kids back or get out of detention?
Anybody know how the asylum process works and how to apply?
Anybody know how important lawyers are for asylum seekers and how to get in touch with local pro bono lawyers?
Anybody separated from kids?
Anybody know that the Government has been ordered by a more conscientious Federal Judge to reunite families?
We’ll probably never know the answers, because that might have exceeded Judge Ormsby’s 75 second attention span and cut into his productivity stats.
I’ve commented before on the Judge Ormsby’s judicial performance (or lack thereof).
Judge Ormsby should be in line for a Jeff Sessions “Volume Is Everything — Due Process Is Nothing” award! He appears to be just the type of subservient judicial toady Trump & McConnell would love to have on the Supremes. And, I wouldn’t let the U.S. District Judges who are in charge of this judicial farce off the hook either.
Someday, the true history of the abuses of human values, human rights, and our Constitution now going on at our border under a White Nationalist regime will be written. And the “go along to get along” crowd will be held accountable for their conduct; by the judgment of history, if not by the law.
Looking for clarity on the law and latest policies affecting children and families separated at the border? Professor Andrew Schoenholtz and Michelle Brané (L’94) of the Women’s Refugee Commission will discuss the status of reunifying families, what’s driving migration and where the administration’s zero-tolerance policy goes from here. Watch the conversation live on Georgetown Law’s Facebook page 10:00 AM today!
Andy & Michelle are long-time friends and two of the “best ever.” Andy (co-author of Refugee Roulette) is my colleague at Georgetown Law these days, and Michelle worked at the BIA as an Honors Program Attorneys during my tenure as BIA Chair.
Start your day with a breath of fresh air and some much-needed truth about refugees, migrants, the law, and how we are treating the most vulnerable among us.
Attorney General Sessions Delivers Remarks to the Criminal Justice Legal Foundation
Los Angeles, CA
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Tuesday, June 26, 2018
Remarks as prepared for delivery
Thank you, Richmond for that kind introduction and thank you for your leadership at the Foundation, the Federalist Society, and Kirkland Ellis. I’m told that your daughter is an AUSA—congratulations on that, as well.
I want to thank Governor Wilson, U.S. Attorneys Nick Hanna and Adam Braverman, District Attorneys Greg Totten, Summer Stephen, our former District Attorneys Steve Cooley and Ed Jagels. And congratulations to our new District Attorneys-Elect Cynthia Zimmer and Jeannine Pacioni. And thank you to John Cox for being here as well.
I especially want to thank President Rushford for his remarks and Legal Director Kent Scheidegger for this organization’s strong support for crime victims, for law enforcement, and for the Department of Justice in both the courtroom and in the public arena.
You stand up for the idea that we can bring down our crime rates through smart policies and more sophisticated policing. That is exactly right. You know as well as I do that crime rates aren’t like the tides—we can make a difference.
On behalf of President Donald Trump, I especially want to thank you all for your strong voice in speaking out for the enforcement of our immigration laws.
This is a decisive issue. As the President often says, “a country without borders is not a country.” I don’t know why that is so hard for some people to understand.
In the United States, we have the most generous immigration laws in the world. We take 1.1 million people on a path to citizenship every year. Another 700,000 come here to take jobs. Another half a million come here to take spots in our colleges and universities.
These are generous laws.
And yet, when we enforce them, we get attacked in the media by the so-called elites and their special interests.
I am convinced that the people of this country support these efforts. In the 2016 election, voters said loud and clear that they wanted a lawful system of immigration that serves the national interest. They said we’ve waited long enough.
I believe that this is one of the main reasons that President Trump won. He promised to tackle this crisis that had been ignored or made worse by so many before him. And now he’s doing exactly what the American people asked him to do.
Yet it seems like these same people who have been passing the buck on this crisis for decades haven’t learned anything. They’re still pushing the same old agenda.
They are fighting desperately to stop the good and decent wishes of the American people from being carried out.
They don’t like it when we deport people—even criminal aliens. They don’t like it when we stop people at the border—even those smuggling children. They don’t like interior enforcement and they don’t like work place enforcement. No matter what we do, they complain.
From coast to coast—perhaps especially on this coast—there are politicians who think that having any border at all is mean-spirited, unkind, or even bigoted.
The vice-chairman of the Democratic National Committee recently wore a t-shirt that says “I don’t believe in borders.” I wonder what his neighbors think about that.
The name of the group that organized the Caravan to stampede our borders is “People Without Borders.”
The Attorney General of this state, Xavier Becerra says that “there’s really no difference between my parents and [illegal] immigrants except a piece of paper.” Paperwork, meaning compliance with our law, is important. And it’s a shame that I must say this to the top law enforcement official in California.
Last week a candidate for governor of New York said that we should “abolish ICE,” which she calls “a terrorist organization.” And she’s got 25 percent support in the latest primary polls.
A few months ago, I paid a visit to Sacramento. You may have heard about it. While I was there, the Mayor of Oakland called illegal aliens “law-abiding Oaklanders.” By definition, of course, that is not true.
In 2013, Hillary Clinton reportedly said in one secret speech, “My dream is a hemispheric common market, with open trade and open borders.” This is the presidential nominee of a major political party.
And these are just the explicit, overt examples. There are plenty of other examples of politicians who want to sound like moderates but whose votes and actions evidence a radical open borders agenda – not lawfulness. Apparently, even the libertarian CATO institute is in this camp.
The rhetoric we hear from the other side on this issue—as on so many others—has become radicalized. We hear views on television today that are on the lunatic fringe. And what is perhaps more galling is the hypocrisy. These same people live in gated communities and are featured at events where you have to have an ID even to hear them speak.
And if you try to scale their fence, believe me, they’ll be only too happy to have you arrested and separated from your family.
They want borders in their lives but not yours and not the American people’s. This is why the American people are sick of the lip service and the hypocrisy. They are sick of the politicians who abandon their promises as soon as the mainstream media criticizes them. They’ve seen it for decades. And now they are supporting a President who is on their side.
President Trump has been quite sensible. He made a generous offer to those who oppose this in Congress. He offered to give DACA recipients legal status if we can build a wall, close the maddening loopholes in our legal system, and switch from chain migration and the visa lottery to a merit-based system.
Their refusal of this offer should be baffling to any objective observer.
He simply asked that they agree to a serious solution to the problem. Why wouldn’t you want to end the illegality?
On Wednesday, President Trump ordered this administration to ensure that when we apprehend illegal aliens at the border and hold them for criminal prosecution and to adjudicate their immigration claims, we do what we can to keep families together.
How did the open borders crowd respond?
No. Now they don’t want them held or deported at all.
Does that surprise you?
When they win, they make demands. And when they lose, they make demands. I think there’s a lesson in that.
We know which side of the debate is radical.
The so-called elites will always find an excuse to attack President Trump. They will not be satisfied as long as we are enforcing our borders.
As long as there is any immigration enforcement, they will oppose any effective limits.
But in spite of the critics, we are following the President’s executive order—and the President is listening to the American people.
On Thursday, the Department of Justice filed a request—right here in the Central District of California to modify the terms of the Flores consent decree, which is what keeps us from detaining alien children with their parents for more than 20 days while their asylum cases are pending. We are asking the court to let ICE detain illegal alien children together with their parent or legal guardian in family residential facilities.
This consent decree—and case law right here in California that has expanded it—has had disastrous consequences for illegal alien children.
In 2015, the Department of Justice under President Obama also tried to modify the consent decree for this exact reason. But it was blocked. And so the word got out that if you crossed our border illegally you would not be detained as long as you brought a child with you.
The results won’t surprise you. The number of people illegally crossing our border with children went up dramatically. In 2013, there were 15,000. This year we’re on pace for 88,000—a five-fold increase in five years.
And we know how well ‘catch and release’ worked. Last year there were 40,000 removal orders issued for people that didn’t show up for their hearings.
And it’s no wonder: our broken immigration laws are telling people that they can come here illegally. So why wait in line?
If we don’t fix our laws, then the flow of illegal immigration is not going to stop—and with it, the gangs, the drug cartels, and the human trafficking, including of children.
That’s why the President made clear that we are going to do everything in our power to avoid separating families—but we are still going to work to prosecute all of those who come here illegally.
By definition, we ought to have zero illegal immigration in this country. But we have more than 1 million illegal aliens just in the Los Angeles area. It is widely estimated that there are more illegal aliens in California than there are people in New Mexico.
There is no other area of American law with this level of illegality.
This is a big group of people. Too many of them have committed crimes here. By definition, every one of those crimes is preventable.
Thousands of illegal aliens are sitting in California jails that you pay for. 39,000 are in federal prisons. Another 16,000 are in custody of the U.S. Marshals.
Those are people who had to be tracked down and arrested by our law enforcement—every time, putting them in potentially dangerous situations.
In this city, Americans have been victimized countless times by people who shouldn’t even be here.
Here are just a few of the people arrested by ICE just this month for crimes that would have been prevented with effective border enforcement:
a gang member who had been convicted of rape,
a man convicted of assault with intent to commit rape, and
a man convicted of assaulting an officer, beating his wife, and assault with a deadly weapon.
I could go on and on. These are the kind of people that sanctuary politicians want to keep in California. This is who they want to give sanctuary to.
The open borders politicians say they’re being compassionate. But where is their compassion for that rape victim? How do they explain to her that her attack happened because of their so-called compassion for her rapist.
Consider the rise of sanctuary policies.
It may sound nice, but these are de facto open borders policies. At their root, they are essentially a rejection of all immigration law.
Think about it. Under sanctuary policies, someone who illegally crosses the border on a Monday and arrives in Sacramento or San Francisco on Wednesday is home free—never to be removed.
Police are often forced to release criminal aliens back into the community—no matter the crime. Police may be forced to release pedophiles, rapists, murderers, drug dealers, and arsonists back into the communities where they had no right to be in the first place.
That has real consequences.
ICE tells us that they are able to locate only about 6 percent of the criminals they ask sanctuary jurisdictions to turn over. The other 94 percent are walking free and often on their way to their next victim.
If they won’t allow us to deport someone who enters illegally and then commits another crime—who will they agree to deport? Sadly, we know the answer to this. Nobody.
And that sends a message around the world. People in developing nations don’t know the laws on our books. But they see what we do. And so do the gangs and drug cartels. They see whether we deport criminals or not. They see whether we have a border wall or not. They see whether we reward illegal aliens with benefits or not.
That’s why, under President Trump’s leadership, the Department of Justice is working to end sanctuary policies. In March, we sued the state of California over their sanctuary laws. And you’ve stood by us all the way. Thank you for your strong amicus brief and thank you for your strong support.
I am confident that together we are going to win that case. It has been settled since 1819 that a state cannot actively attempt to undermine the execution of federal law or discriminate against the federal government.
The American people are with us on this issue. One poll last year showed that 80 percent of the American people oppose sanctuary policies. Most cities are not sanctuary cities.
We have also supported the state of Texas in its efforts to ban sanctuary cities. And since I became Attorney General, we have filed briefs to defend state or local law enforcement in about thirty cases. A number of courts have ruled in these cases that state or local cooperation with federal immigration enforcement efforts does not violate federal law.
We have stopped rewarding sanctuary cities with taxpayer dollars. If sanctuary cities want to receive federal law enforcement grants, then they should stop impeding federal law enforcement. That is not too much to ask.
This is the Trump era. We are enforcing our laws again. We know whose side we’re on: we’re on the side of police, and we’re on the side of the American people.
The radical open border crowd should declare whose side they are on.
But we are resolute. We are going to keep fighting. With President Trump and with your strong support for police and for the rule of law, I am confident that we will turn the tide and keep the American people safe.
That a Government official supposedly charged with protecting justice for everyone in America — NOT just citizens or GOP voters— and who took an oath to uphold the Constitution would make such an outrageously biased statement in public and not be booed off the stage shows just how empowered “White Nationalist Nation” has become under Trump, Sessions, and Miller.
Don’t expect any help from Chief Justice Roberts and his gang over at the Supremes.
And no, “Gonzo Apocalyoto,” most of us fighting to uphold the Constitution, the rule of law, international law, human values, and to defend human dignity against you and your “Fat Cat” cronies like Trump and GOP “bankrollers,” do not live in gated communities and usually you can hear us speak for free. You choose not to listen to the true “voices of virtue.”
Just a brief fact check: The majority of American voters didn’t want Donald Trump to be their President — the Electoral College elected him, even though millions more American voters would have preferred his opponent.
Also, why is Gonzo allowed to go around spreading the clear untruth that immigrants, both legal and undocumented, are a major source of crime? It’s been proven untrue over and over. And, when you discard “bogus crimes” such as misdemeanor illegal entry and traffic violations, migrants of all types are significantly more law-abiding than native-born Americans.
Indeed, the vulnerable women and children refugees from the Northern Triangle that Gonzo is harming and persecuting are actually fleeing from severe violence — a “low-grade war zone” as described by NBC correspondent Richard Engel — that Gonzo and his group of scofflaws encourage and feed by falsely characterizing them as “mere economic migrants,” telling them to get in a “nonexistent line” to migrate legally, intentionally skewing and misconstruing asylum law against them, and basically telling them to “join the gangs, cooperate with them, or die — we really don’t value your lives at all.” How sick is that? About as sick as abusing little children and asylum seekers.
MAJORITY: ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, THOMAS, ALITO, and GORSUCH, JJ., joined.
CONCURRING OPINIONS: KENNEDY, J., and THOMAS, J., filed concurring opinions.
DISSENTING OPINIONS: BREYER, J., filed a dissenting opinion, in which KAGAN, J., joined. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined.
COURT SYLLABUS:
In September 2017, the President issued Proclamation No. 9645, seek- ing to improve vetting procedures for foreign nationals traveling to the United States by identifying ongoing deficiencies in the infor- mation needed to assess whether nationals of particular countries present a security threat. The Proclamation placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate. Foreign states were selected for inclusion based on a re- view undertaken pursuant to one of the President’s earlier Executive Orders. As part of that review, the Department of Homeland Securi- ty (DHS), in consultation with the State Department and intelligence agencies, developed an information and risk assessment “baseline.” DHS then collected and evaluated data for all foreign governments, identifying those having deficient information-sharing practices and presenting national security concerns, as well as other countries “at risk” of failing to meet the baseline. After a 50-day period during which the State Department made diplomatic efforts to encourage foreign governments to improve their practices, the Acting Secretary of Homeland Security concluded that eight countries—Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen—remained deficient. She recommended entry restrictions for certain nationals from all of those countries but Iraq, which had a close cooperative re- lationship with the U. S. She also recommended including Somalia, which met the information-sharing component of the baseline stand- ards but had other special risk factors, such as a significant terrorist presence. After consulting with multiple Cabinet members, the Pres- ident adopted the recommendations and issued the Proclamation.
2
TRUMP v. HAWAII Syllabus
Invoking his authority under 8 U. S. C. §§1182(f) and 1185(a), he de- termined that certain restrictions were necessary to “prevent the en- try of those foreign nationals about whom the United States Gov- ernment lacks sufficient information” and “elicit improved identity- management and information-sharing protocols and practices from foreign governments.” The Proclamation imposes a range of entry re- strictions that vary based on the “distinct circumstances” in each of the eight countries. It exempts lawful permanent residents and pro- vides case-by-case waivers under certain circumstances. It also di- rects DHS to assess on a continuing basis whether the restrictions should be modified or continued, and to report to the President every 180 days. At the completion of the first such review period, the Pres- ident determined that Chad had sufficiently improved its practices, and he accordingly lifted restrictions on its nationals.
Plaintiffs—the State of Hawaii, three individuals with foreign rela- tives affected by the entry suspension, and the Muslim Association of Hawaii—argue that the Proclamation violates the Immigration and Nationality Act (INA) and the Establishment Clause. The District Court granted a nationwide preliminary injunction barring enforce- ment of the restrictions. The Ninth Circuit affirmed, concluding that the Proclamation contravened two provisions of the INA: §1182(f), which authorizes the President to “suspend the entry of all aliens or any class of aliens” whenever he “finds” that their entry “would be detrimental to the interests of the United States,” and §1152(a)(1)(A), which provides that “no person shall . . . be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” The court did not reach the Establishment Clause claim.
Held:
1. This Court assumes without deciding that plaintiffs’ statutory
claims are reviewable, notwithstanding consular nonreviewability or any other statutory nonreviewability issue. See Sale v. Haitian Cen- ters Council, Inc., 509 U. S. 155. Pp. 8–9.
2. The President has lawfully exercised the broad discretion grant- ed to him under §1182(f) to suspend the entry of aliens into the Unit- ed States. Pp. 9–24.
(a) By its terms, §1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale, 509 U. S., at 187. The Proclamation falls well with- in this comprehensive delegation. The sole prerequisite set forth in §1182(f) is that the President “find[ ]” that the entry of the covered al-
Cite as: 585 U. S. ____ (2018) 3
Syllabus
iens “would be detrimental to the interests of the United States.” The President has undoubtedly fulfilled that requirement here. He first ordered DHS and other agencies to conduct a comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline. He then issued a Proclamation with extensive findings about the deficiencies and their impact. Based on that review, he found that restricting entry of aliens who could not be vetted with adequate information was in the national interest.
Even assuming that some form of inquiry into the persuasiveness of the President’s findings is appropriate, but see Webster v. Doe, 486 U. S. 592, 600, plaintiffs’ attacks on the sufficiency of the findings cannot be sustained. The 12-page Proclamation is more detailed than any prior order issued under §1182(f). And such a searching in- quiry is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. See, e.g., Sale, 509 U. S., at 187–188.
The Proclamation comports with the remaining textual limits in §1182(f). While the word “suspend” often connotes a temporary de- ferral, the President is not required to prescribe in advance a fixed end date for the entry restriction. Like its predecessors, the Procla- mation makes clear that its “conditional restrictions” will remain in force only so long as necessary to “address” the identified “inadequa- cies and risks” within the covered nations. Finally, the Proclamation properly identifies a “class of aliens” whose entry is suspended, and the word “class” comfortably encompasses a group of people linked by nationality. Pp. 10–15.
(b) Plaintiffs have not identified any conflict between the Proc- lamation and the immigration scheme reflected in the INA that would implicitly bar the President from addressing deficiencies in the Nation’s vetting system. The existing grounds of inadmissibility and the narrow Visa Waiver Program do not address the failure of certain high-risk countries to provide a minimum baseline of reliable infor- mation. Further, neither the legislative history of §1182(f) nor his- torical practice justifies departing from the clear text of the statute. Pp. 15–20.
(c) Plaintiffs’ argument that the President’s entry suspension vio- lates §1152(a)(1)(A) ignores the basic distinction between admissibil- ity determinations and visa issuance that runs throughout the INA. Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once §1182 sets the boundaries of admissibility, §1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on national- ity and other traits. Had Congress intended in §1152(a)(1)(A) to con- strain the President’s power to determine who may enter the country,
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it could have chosen language directed to that end. Common sense and historical practice confirm that §1152(a)(1)(A) does not limit the President’s delegated authority under §1182(f). Presidents have re- peatedly exercised their authority to suspend entry on the basis of nationality. And on plaintiffs’ reading, the President would not be permitted to suspend entry from particular foreign states in response to an epidemic, or even if the United States were on the brink of war. Pp. 20–24.
3. Plaintiffs have not demonstrated a likelihood of success on the merits of their claim that the Proclamation violates the Establish- ment Clause. Pp. 24–38.
(a) The individual plaintiffs have Article III standing to chal- lenge the exclusion of their relatives under the Establishment Clause. A person’s interest in being united with his relatives is suffi- ciently concrete and particularized to form the basis of an Article III injury in fact. Cf., e.g., Kerry v. Din, 576 U. S. ___, ___. Pp. 24–26.
(b) Plaintiffs allege that the primary purpose of the Proclamation was religious animus and that the President’s stated concerns about vetting protocols and national security were but pretexts for discrim- inating against Muslims. At the heart of their case is a series of statements by the President and his advisers both during the cam- paign and since the President assumed office. The issue, however, is not whether to denounce the President’s statements, but the signifi- cance of those statements in reviewing a Presidential directive, neu- tral on its face, addressing a matter within the core of executive re- sponsibility. In doing so, the Court must consider not only the statements of a particular President, but also the authority of the Presidency itself. Pp. 26–29.
(c) The admission and exclusion of foreign nationals is a “funda- mental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U. S. 787, 792. Although foreign nationals seeking admission have no constitutional right to entry, this Court has engaged in a cir- cumscribed judicial inquiry when the denial of a visa allegedly bur- dens the constitutional rights of a U. S. citizen. That review is lim- ited to whether the Executive gives a “facially legitimate and bona fide” reason for its action, Kleindienst v. Mandel, 408 U. S. 753, 769, but the Court need not define the precise contours of that narrow in- quiry in this case. For today’s purposes, the Court assumes that it may look behind the face of the Proclamation to the extent of apply- ing rational basis review, i.e., whether the entry policy is plausibly related to the Government’s stated objective to protect the country and improve vetting processes. Plaintiffs’ extrinsic evidence may be considered, but the policy will be upheld so long as it can reasonably
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be understood to result from a justification independent of unconsti- tutional grounds. Pp. 30–32.
(d) On the few occasions where the Court has struck down a policy as illegitimate under rational basis scrutiny, a common thread has been that the laws at issue were “divorced from any factual context from which [the Court] could discern a relationship to legitimate state interests.” Romer v. Evans, 517 U. S. 620, 635. The Proclama- tion does not fit that pattern. It is expressly premised on legitimate purposes and says nothing about religion. The entry restrictions on Muslim-majority nations are limited to countries that were previous- ly designated by Congress or prior administrations as posing national security risks. Moreover, the Proclamation reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies. Plaintiffs challenge the entry suspension based on their perception of its effectiveness and wisdom, but the Court cannot substitute its own assessment for the Executive’s predictive judgments on such matters. See Holder v. Humanitarian Law Pro- ject, 561 U. S. 1, 33–34.
Three additional features of the entry policy support the Govern- ment’s claim of a legitimate national security interest. First, since the President introduced entry restrictions in January 2017, three Muslim-majority countries—Iraq, Sudan, and Chad—have been re- moved from the list. Second, for those countries still subject to entry restrictions, the Proclamation includes numerous exceptions for vari- ous categories of foreign nationals. Finally, the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. Under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review. Pp. 33–38.
878 F. 3d 662, reversed and remanded.
KEY QUOTE FROM JUSTICE BRYER’S DISSENT:
And, perhaps most importantly, if the Government is not applying the Proclamation’s exemption and waiver system, the claim that the Proclamation is a “Muslim ban,” rather than a “security-based” ban, becomes much stronger. How could the Government successfully claim that the Proclamation rests on security needs if it is ex- cluding Muslims who satisfy the Proclamation’s own terms? At the same time, denying visas to Muslims who meet the Proclamation’s own security terms would support the view that the Government excludes them for reasons based upon their religion.
Unfortunately there is evidence that supports the sec-
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ond possibility, i.e., that the Government is not applying the Proclamation as written. The Proclamation provides that the Secretary of State and the Secretary of Homeland Security “shall coordinate to adopt guidance” for consular officers to follow when deciding whether to grant a waiver. §3(c)(ii). Yet, to my knowledge, no guidance has issued. The only potentially relevant document I have found consists of a set of State Department answers to certain Frequently Asked Questions, but this document simply restates the Proclamation in plain language for visa appli- cants. It does not provide guidance for consular officers as to how they are to exercise their discretion. See Dept. of State, FAQs on the Presidential Proclamation, https:// travel.state.gov/content/travel/en/us-visas/visa-information- resources/presidential-proclamation-archive/2017-12-04- Presidential-Proclamation.html (all Internet materials as last visited June 25, 2018).
An examination of publicly available statistics also provides cause for concern. The State Department reported that during the Proclamation’s first month, two waivers were approved out of 6,555 eligible applicants. Letter from M. Waters, Assistant Secretary Legislative Affairs, to Sen. Van Hollen (Feb. 22, 2018). In its reply brief, the Government claims that number increased from 2 to 430 during the first four months of implementation. Reply Brief 17. That number, 430, however, when compared with the number of pre-Proclamation visitors, accounts for a miniscule percentage of those likely eligible for visas, in such categories as persons requiring medical treatment, academic visitors, students, family members, and others belonging to groups that, when considered as a group (rather than case by case), would not seem to pose security threats.
Amici have suggested that there are numerous appli- cants who could meet the waiver criteria. For instance, the Proclamation anticipates waivers for those with “sig-
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nificant business or professional obligations” in the United States, §3(c)(iv)(C), and amici identify many scholars who would seem to qualify. Brief for Colleges and Universities as Amici Curiae 25–27; Brief for American Council on Education et al. as Amici Curiae 20 (identifying more than 2,100 scholars from covered countries); see also Brief for Massachusetts Technology Leadership Council, Inc., asAmicus Curiae 14–15 (identifying technology and business leaders from covered countries). The Proclamation also anticipates waivers for those with a “close family member (e.g., a spouse, child, or parent)” in the United States, §3(c)(iv)(D), and amici identify many such individuals affected by the Proclamation. Brief for Labor Organiza- tions as Amici Curiae 15–18 (identifying children and other relatives of U. S. citizens). The Pars Equality Cen- ter identified 1,000 individuals—including parents and children of U. S. citizens—who sought and were denied entry under the Proclamation, hundreds of whom seem to meet the waiver criteria. See Brief for Pars Equality Center et al. as Amici Curiae 12–28.
Other data suggest the same. The Proclamation does not apply to asylum seekers or refugees. §§3(b)(vi), 6(e). Yet few refugees have been admitted since the Proclama- tion took effect. While more than 15,000 Syrian refugees arrived in the United States in 2016, only 13 have arrived since January 2018. Dept. of State, Bureau of Population, Refugees, and Migration, Interactive Reporting, Refugee Processing Center, http://ireports.wrapsnet.org. Similarly few refugees have been admitted since January from Iran (3), Libya (1), Yemen (0), and Somalia (122). Ibid.
The Proclamation also exempts individuals applying for several types of nonimmigrant visas: lawful permanent residents, parolees, those with certain travel documents, dual nationals of noncovered countries, and representa- tives of governments or international organizations. §§3(b)(i)–(v). It places no restrictions on the vast majority
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of student and exchange visitors, covering only those from Syria, which provided 8 percent of student and exchange visitors from the five countries in 2016. §§2(b)–(h); see Dept. of State, Report of the Visa Office 2016, Table XVII Nonimmigrant Visas Issued Fiscal Year 2016 (Visa Report 2016 Table XVII). Visitors from Somalia are eligible for any type of nonimmigrant visa, subject to “additional scrutiny.” §2(h)(ii). If nonimmigrant visa applications under the Proclamation resemble those in 2016, 16 per- cent of visa applicants would be eligible for exemptions. See Visa Report 2016 Table XVII.
In practice, however, only 258 student visas were issued to applicants from Iran (189), Libya (29), Yemen (40), and Somalia (0) in the first three months of 2018. See Dept. of State, Nonimmigrant Visa Issuances by Nationality, Jan., Feb., and Mar. 2018. This is less than a quarter of the volume needed to be on track for 2016 student visa levels. And only 40 nonimmigrant visas have been issued to Somali nationals, a decrease of 65 percent from 2016.Ibid.; see Visa Report 2016 Table XVII. While this is but a piece of the picture, it does not provide grounds for confidence.
Anecdotal evidence further heightens these concerns. For example, one amicus identified a child with cerebral palsy in Yemen. The war had prevented her from receiv- ing her medication, she could no longer move or speak, and her doctors said she would not survive in Yemen. Her visa application was denied. Her family received a form with a check mark in the box unambiguously confirming that “‘a waiver will not be granted in your case.’” Letter from L. Blatt to S. Harris, Clerk of Court (May 1, 2018). But after the child’s case was highlighted in an amicusbrief before this Court, the family received an update from the consular officer who had initially denied the waiver. It turns out, according to the officer, that she had all along determined that the waiver criteria were met. But, the
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officer explained, she could not relay that information at the time because the waiver required review from a super- visor, who had since approved it. The officer said that the family’s case was now in administrative processing and that she was attaching a “‘revised refusal letter indicating the approval of the waiver.’” Ibid. The new form did not actually approve the waiver (in fact, the form contains no box saying “granted”). But a different box was now checked, reading: “‘The consular officer is reviewing your eligibility for a waiver under the Proclamation. . . . This can be a lengthy process, and until the consular officer can make an individualized determination of [the relevant] factors, your visa application will remain refused under Section 212(f) [of the Proclamation].’” Ibid. One is left to wonder why this second box, indicating continuing review, had not been checked at the outset if in fact the child’s case had remained under consideration all along. Though this is but one incident and the child was admitted after considerable international attention in this case, it pro- vides yet more reason to believe that waivers are not being processed in an ordinary way.
Finally, in a pending case in the Eastern District of New York, a consular official has filed a sworn affidavit assert- ing that he and other officials do not, in fact, have discre- tion to grant waivers. According to the affidavit, consular officers “were not allowed to exercise that discretion” and “the waiver [process] is merely ‘window dressing.’” See Decl. of Christopher Richardson, Alharbi v. Miller, No. 1:18-cv-2435 (June 1, 2018), pp. 3–4. Another report similarly indicates that the U. S. Embassy in Djibouti, which processes visa applications for citizens of Yemen, received instructions to grant waivers “only in rare cases of imminent danger,” with one consular officer reportedly telling an applicant that “‘[e]ven for infants, we would need to see some evidence of a congenital heart defect or another medical issue of that degree of difficulty
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that…would likely lead to the child’s developmental harm or death.’” Center for Constitutional Rights and the Rule of Law Clinic, Yale Law School, Window Dressing the Muslim Ban: Reports of Waivers and Mass Denials from Yemeni-American Families Stuck in Limbo 18 (2018).
Declarations, anecdotal evidence, facts, and numbers taken from amicus briefs are not judicial factfindings. The Government has not had an opportunity to respond, and a court has not had an opportunity to decide. But, given the importance of the decision in this case, the need for assur- ance that the Proclamation does not rest upon a “Muslim ban,” and the assistance in deciding the issue that an- swers to the “exemption and waiver” questions may pro- vide, I would send this case back to the District Court for further proceedings. And, I would leave the injunction in effect while the matter is litigated. Regardless, the Court’s decision today leaves the District Court free to explore these issues on remand.
If this Court must decide the question without this further litigation, I would, on balance, find the evidence of antireligious bias, including statements on a website taken down only after the President issued the two execu- tive orders preceding the Proclamation, along with the other statements also set forth in JUSTICE SOTOMAYOR’s opinion, a sufficient basis to set the Proclamation aside. And for these reasons, I respectfully dissent.
KEY QUOTE FROM JUSTICE SOTOMAYOR’S DISSENT:
The United States of America is a Nation built upon the promise of religious liberty. Our Founders honored that core promise by embedding the principle of religious neu trality in the First Amendment. The Court’s decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a “total and complete shutdown of Mus lims entering the United States” because the policy now masquerades behind a façade of national-security con cerns. But this repackaging does little to cleanse Presi dential Proclamation No. 9645 of the appearance of dis crimination that the President’s words have created. Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus. That alone suffices to show that plaintiffs are likely to succeed on the merits of their Estab lishment Clause claim. The majority holds otherwise by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Procla mation inflicts upon countless families and individuals, many of whom are United States citizens. Because that troubling result runs contrary to the Constitution and our precedent, I dissent.
. . .
In the intervening years since Korematsu, our Nation has done much to leave its sordid legacy behind. See, e.g.,Civil Liberties Act of 1988, 50 U. S. C. App. §4211 et seq.(setting forth remedies to individuals affected by the executive order at issue in Korematsu); Non-Detention Act of 1971, 18 U. S. C. §4001(a) (forbidding the imprisonment or detention by the United States of any citizen absent an Act of Congress). Today, the Court takes the important step of finally overruling Korematsu, denouncing it as “gravely wrong the day it was decided.” Ante, at 38 (citingKorematsu, 323 U. S., at 248 (Jackson, J., dissenting)). This formal repudiation of a shameful precedent is laud able and long overdue. But it does not make the majority’s decision here acceptable or right. By blindly accepting the Government’s misguided invitation to sanction a discrimi natory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision with another. Ante, at 38.
Our Constitution demands, and our country deserves, a Judiciary willing to hold the coordinate branches to ac count when they defy our most sacred legal commitments. Because the Court’s decision today has failed in that respect, with profound regret, I dissent.
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Quick Takes:
Yes, I think it’s as bad as it looks and sounds at first glance!
Anybody who thought that the Supremes would stand up for the Constitution against bias-based Executive overreaching should be disabused of that wishful thinking by this decision.
The majority showed little or no interest in holding Trump within Constitutional norms in the area of immigration.
Seems like the Supremes are inviting a bogus “Asylum Ban” as Trump’s next move, and signaling that they won’t do anything no matter how bad his abuses of the law, the Constitution, or international law might be.
Things are likely to get ugly really fast. And, the Supremes are saying that the last and only hope for getting our country and our Constitution back from the restrictionist regime is at the ballot box.
To make that result unlikely, however, they also turned their backs this week on clear racial and political gerrymandering, thus seeking to guarantee White minority control of all branches of Government for the foreseeable future.
