Supreme Court – Page 58 – immigrationcourtside.com

GONZO’S WORLD: COMING TO THE SUPREMES THIS FALL: Jeff Sessions v. United States of America! – White Nationalist AG Takes On 21st Century America In Concerted Effort To Recreate “The Bad Old Days” Of Maximo Bias & Inequality!

http://www.motherjones.com/politics/2017/10/trumps-justice-department-is-taking-on-other-federal-agencies-in-court/

Pena Levy reports for Mother Jones:

“The first day of the Supreme Court’s new term on Monday will feature a rare legal showdown: The Justice Department will face off against another federal agency. It’s unusual for the Justice Department, representing the United States government, to disagree with an executive agency, much less send its top lawyer to try to defeat that agency before the Supreme Court—but it’s only the first of several such confrontations in the Trump administration.

There are currently three major cases in which the Justice Department under Attorney General Jeff Sessions has taken a position in opposition to another executive agency. The nation’s top court will referee one of these disagreements on Monday, and the other two are likely to reach the Supreme Court next year. The situation is partially explained by politics: The department is opposing agencies whose missions—protecting the interests of workers and consumers—are less likely to align with the goals of a conservative administration. But it’s also a signal of how aggressive the Justice Department plans to be in pursing its conservative agenda through the courts.

“It’s highly unusual to have two lawyers, both representing the federal government, taking opposite positions in a court,” says Deepak Gupta, an appellate lawyer who has filed briefs in two of the cases opposing the Justice Department’s positions. “The fact that it’s happening in multiple instances across a broad range of issues is really remarkable and is a sign of how aggressively the Trump administration is flipping positions on a broad range of issues.”

The case going before the court on Monday concerns workers’ right to collective action. The other two will decide whether the creation of the agency in charge of protecting consumers violates the Constitution and whether the 1964 Civil Rights Act protects employees from being fired because of their sexual orientation. The Justice Department’s willingness to take on other agencies is even more notable because in two of the cases, the department’s top lawyers had to change the department’s position in order to oppose the agencies. Such changes are generally not made without serious deliberation and restraint because the department is expected to have a consistent position on legal issues.

“You would expect the justices to perhaps want to look a little bit more closely at precisely what the government’s position is,” says Jonathan Adler, a professor of constitutional and administrative law at the Case Western Reserve University School of Law, “to make sure that any change is in fact well considered and not something that’s being done cavalierly or superficially.”

On Monday, the US solicitor general, a Republican lawyer named Noel Francisco who was confirmed by the Senate earlier this month, will argue against the National Labor Relations Board (NLRB), which his office was representing until a few months ago. Under President Barack Obama, the solicitor general prepared to represent the NLRB, the federal agency charged with protecting workers from unfair labor practices, before the Supreme Court. But in June, the solicitor general’s office switched sides. “After the change in administration, the Office reconsidered the issue and has reached the opposite conclusion,” the office announced in a brief. The NLRB would now need to represent itself, and the solicitor general would appear in court on the other side. Labor advocates say they have to go back to the Reagan administration to find an analogous situation, in which a new administration changed its position before the Supreme Court for what appeared to be largely political reasons.

“This is not normal, even in a change of administration,” says Celine McNicholas, a labor attorney at the Economic Policy Institute, a progressive think tank, and a former counsel at the NLRB. Politics always affect agencies’ agendas, she says, but for the solicitor general to change his office’s stance before the Supreme Court for what appear to be political reasons “is a significant shift.”

The stakes in the NLRB case are high. The question is whether employment contracts can prohibit employees from joining together to seek better working conditions or higher wages or to address grievances, instead forcing them into secret, individual arbitration proceedings. Since 2012, the NLRB has held that these increasingly common mandatory arbitration clauses are illegal because they violate employees’ right to join together, which is enshrined in the 1935 National Labor Relations Act. The Justice Department has taken the position that in order to get a job, workers can be forced to waive any right to petition collectively in the future. If the department and the employers it is siding with prevail, such employment contracts are likely to proliferate further, giving every employer the ability to escape any chance of a class-action lawsuit or other type of collective agitation.

In March, the Justice Department filed a motion before the DC Circuit Court of Appeals in which it agreed with PHH. A “removal restriction for the Director of the CFPB is an unwarranted limitation on the President’s executive power,” the department wrote in a court filing announcing its new position.The Justice Department has also switched positions in a case over the Consumer Financial Protection Bureau (CFPB), the agency created after the financial collapse in 2008 to protect consumers from predatory mortgages, credit cards, student loans, and other financial products. The agency, the brainchild of Sen. Elizabeth Warren (D-Mass.), has been a target of Republicans since its inception. Now the Trump administration has seized on a chance to weaken it. The case originated when the CFBP levied a $109 million fine against PHH Corporation, a mortgage services provider that it alleged was referring customers to specific insurers in what was tantamount to a kickback scheme. PHH sued, claiming that in creating the CFPB’s leadership structure, Congress made the agency more independent from the president than is allowed under the Constitution. The agency’s director serves a five-year term and can only be fired by the president for cause.

Gupta, a former top official at the CFPB, sees this case as the most troubling of the three because, rather than execute the laws passed by Congress as required by the Constitution, the administration has opted to argue against an act of Congress. This is not unheard of; in 2011, the Obama administration announced that it would no longer defend a federal law that banned the recognition of same-sex marriages. But in announcing that decision, then-Attorney General Eric Holder explained that it was made in consultation with Obama and after an extensive review of the issue.

In contrast, the Trump administration’s decision to flip its position on the constitutionality of the CFPB seemed to lack serious deliberation. Three weeks before the administration announced its new position in a court filing, the department took the opposite position in a case that raised the same constitutional objection to another agency—the Federal Housing Finance Agency (FHFA)—with the same leadership structure as the CFPB. In February, the department filed a brief, signed by acting assistant attorney general Chad Readler, in which it argued that the challenge to the FHFA’s structure was an “illogical thesis” and “wholly without merit.” Three weeks later, Readler made the opposite argument about the CFPB. Acknowledging the conflict, Readler advised the court retroactively in the FHFA case that the government “does not urge reliance” on the argument it had previously advocated.”

. . . .

But under Sessions, the Justice Department has decided not only to take on other executive agencies, but also to switch positions in a number of other cases, including multiple voting rights cases. How judges will react to this fickleness—particularly in the coming Supreme Court term—could affect the Trump administration’s ability to uphold its broader agenda in the courts. “Of all the offices in the federal government,” says Adler, “we tend to expect the solicitor general’s office to be the most candid about what the law requires versus what’s a policy judgment, and to really not overplay that or overstate that.”

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Read the complete article at the link.

“This is not normal.” That pretty much sums up the Trump Administration and the entire career of “Gonzo Apocalypto” Sessions in a nutshell! The worst thing is that U.S. taxpayers are being ripped off for clowns like Sessions and his fellow travelers who are out to trash the rights and interests of the majority of Americans and to rip apart the rule of law and decency in Government at the same time.

It’s sorta like when guerrillas support themselves by extorting their political enemies or perceived enemies (something that the BIA in its wrong-headed rush to restrict asylum protection doesn’t recognize as “persecution,” even though it’s one of the oldest and most classic forms of political persecution). Make no mistake about it, Gonzo and his team of politicos are waging “guerrilla warfare” against career lawyers and the rule of law at the U.S. Department of Justice and in the Federal Courts. And, to date, they have largely gotten away with it.

These unquestionably are “law-free” bias-driven policy decisions by Gonzo. I’ve never seen any evidence whatsoever that Sessions actually reads or has even basic knowledge of American law. It’s just not necessary for a lifelong member of “The Wrecking Crew.” What is clear, however, is that he arrived at DOJ not with legal books, but with “cue cards” prepared for him by the Heritage Foundation, restrictionist immigration groups, and his White Nationalist buddies Miller and Bannon. His memoranda and briefs are studies in disingenuous doublespeak, complete nonsense, White Nationalist myths, and an overall intellectual shallowness that almost matches that of Trump.

It also shows why nobody should take seriously Gonzo’s disingenuous babbling about the Constitution or the “Rule of Law,” both of which he mocks nearly every day he remans in the high office for which he is so spectacularly unqualified. Liz was definitely right!

The good news, if any, is that by the time this disaster is over, the Solicitor General’s Office will have lost its last shred of credibility in the Article III Federal Courts. And, perhaps it will be a good thing for American justice when the “SG” loses his or her “privileged position” and is finally viewed as just another suspect and self-interested litigant in court. And, not a very smart or very well-qualified litigant at that.

Once lost, credibility can seldom be regained. Think about that one, Noel Francisco, before you and your subordinates become complete shills for the legally and morally bankrupt positions of Gonzo and Trump.

PWS

10-02-17

DEAN KEVIN JOHNSON PREVIEWS JENNINGS V. RODRIGUEZ (INDEFINITE PREHEARING IMMIGRATION DETENTION) OA IN SCOTUS BLOG

http://www.scotusblog.com/2017/09/argument-preview-constitutionality-mandatory-lengthy-immigrant-detention-without-bond-hearing/

Dean Johnson writes:

“Detention as a tool of immigration enforcement has increased dramatically following immigration reforms enacted in 1996. Two Supreme Court cases at the dawn of the new millennium offered contrasting approaches to the review of decisions of the U.S. government to detain immigrants. In 2001, in Zadvydas v. Davis, the Supreme Court interpreted an immigration statute to require judicial review of a detention decision because “to permit[] indefinite detention of an alien would cause a serious constitutional problem.” Just two years later, the court in Demore v. Kim invoked the “plenary power” doctrine – something exceptional to immigration law and inconsistent with modern constitutional law – to immunize from review a provision of the immigration statute requiring detention of immigrants awaiting removal based on a crime.

How the Supreme Court reconciles these dueling decisions will no doubt determine the outcome in Jennings v. Rodriguez. This case involves the question whether immigrants, like virtually any U.S. citizen placed in criminal or civil detention, must be guaranteed a bond hearing and possible release from custody. Relying on Zadvydas v. Davis, the U.S. Court of Appeals for the 9th Circuit affirmed a district court injunction that avoided “a serious constitutional problem” by requiring bond hearings every six months for immigrant detainees. The court of appeals further mandated that, in order to continue to detain an immigrant, the government must prove that the noncitizen poses a flight risk or a danger to public safety.”

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Read the rest of Dean Johnson’s analysis at the link.

This is huge in human rights. A “W” for the Administration, which many observers view as likely with the advent of Justice Gorsuch, will essentially “Green Light” the Trump-Sessions-Miller plan to construct the “New American Gulag.” The Gulag’s “prisoners” will be noncriminal migrants (many of them women fleeing violence in the Northern Triangle) whose only “crime” is to assert their rights for due process and justice under our laws.

The concept that migrants have rights is something that sticks in the craws of the White Nationalists. So, punishing them for asserting their rights (with an objective of coercing them into giving up their rights and leaving “voluntarily”) is the next best thing to denying them entirely (which the Administration routinely does whenever it thinks it can get away with it — and the Article IIIs have largely, but not entirely, been asleep at the switch here).

And, make no mistake about it, as study after study has shown, the “conditions of civil detention” in the Gulag are substandard. So much so that in the last Administration DHS’s own study committee actually recommended an end to private immigration detention contracts and a phasing out of so-called “family detention.” The response of the Trump White Nationalists: ignore the facts and double down on the inhumanity.

Based on recent news reports, DHS immigration detainees die at a rate of approximately one per month. And many more suffer life changing and life threatening medical and psychiatric conditions while in detention. Just “collateral damage” in “Gonzo speak.”

Immigration detainees are often held without bond or with bonds that are so unrealistically high that they effectively amount to no bond. And, in many cases (like the one here) they are denied even minimal access to a U.S. Immigration Judge to have the reasons for detention reviewed.

Plus, as I reported recently, across the nation DHS is refusing to negotiate bonds for those eligible. They are also appealing Immigration Judge decisions to release migrants on bond pending hearings, apparently without any regard to the merits of the IJ’s decision. In other words, DHS is abusing the immigration appeals system for the purpose of harassing migrants who won’t agree to waive their rights to a due process hearing and depart!

Also, as I pointed out, in the “no real due process” world of the U.S. Immigration Courts, the DHS prosecutors can unilaterally block release of a migrant on bond pending appeal. In most cases this means that the individual remains in detention until the Immigration Judge completes the “merits hearing.” At that point the BIA determines that the DHS bond appeal is “moot” and dismisses it without ever reaching the merits. Just another bogus “production” statistic generated by EOIR!

Oh, and by the way, contrary to “Gonzo” Session’s false and misleading rhetoric on so-called “Sanctuary Cities,” one of the things jurisdictions that rationally choose to limit cooperation with DHS enforcement to those with significant criminal records are doing is protecting their law-abiding, productive migrant residents and migrant communities from the patent abuses of the “American Gulag.” “Gonzo policies” predictably drive reasonable people to take protective actions.

But, some day, the bureaucrats, complicit judges (particularly life-tenured Article III Judges, like the Supremes), reactionary legislators who turn their backs on human suffering, and misguided voters who have allowed this human rights travesty to be perpetrated on American soil will be held accountable, by the forces of history if nothing else.

PWS

09-28-17

ADMINISTRATION ISSUES TRAVEL BAN 3.0!

https://www.washingtonpost.com/world/national-security/trump-administration-changes-travel-ban-countries/2017/09/24/1fef7cfe-a140-11e7-ade1-76d061d56efa_story.html

The Washington Post reports:

“The Trump administration announced new restrictions Sunday on visitors from eight countries — an expansion of the pre-existing travel ban that has spurred fierce legal debates over security, immigration and discrimination.

Officials had said they wanted the new rules to be both tough and targeted. The move comes as the key portion of President Trump’s travel ban, which bars the issuance of visas to citizens of six majority-Muslim countries, is set to expire.

“These restrictions are necessary and conditions-based, not time-based,” a senior administration official said.

The new travel restrictions represent the third version offered by the Trump administration.

Three new nations were added to the list of countries whose citizens will face the restrictions: Chad, North Korea and Venezuela — although the restrictions on Venezuela target that country’s leadership and family members. One country, Sudan, fell off the travel ban list issued at the beginning of the year. Senior administration officials said a review of Sudan’s cooperation with their national security concerns and information-sharing showed that it was appropriate to remove the nation from the list.

The new restrictions will be phased in over time, officials said, and the restrictions will not affect anyone who already holds a U.S. visa.

The original travel ban was created as a temporary measure, designed to give officials a few months to assess the vetting of visa applicants and what information other countries could and couldn’t provide.

“The restrictions either previously or now were never, ever ever based on race, religion or creed,’’ one senior administration official said. “Those governments are simply not compliant with our basic security requirements.”

The original version, signed as an executive order in January, blocked citizens of seven majority-Muslim countries — Iraq, Iran, Sudan, Somalia, Libya, Yemen and Syria — as well as all refugees across the globe.

When that measure was blocked in court, Trump signed a revised order removing Iraq from the banned list and only barring the issuance of visas to citizens of the six remaining countries and all refugees.

The second order, too, was blocked by judges, but the Supreme Court in June allowed it to go into effect with a significant caveat. The administration, the court said, could not block from entering the country those with a “bona fide” connection to the United States, such as family members or those with firm offers of employment.

The ban on citizens of the six countries was to last 90 days; the ban on refugees was to last 120 days. The refugee ban is set to expire Oct. 24, and it was not immediately clear what impact the new restrictions might have on it.

The Supreme Court has scheduled arguments for Oct. 10 on whether the measure, at its core, is legal. It is unclear how any new restrictions might affect that case, and it is possible that they could spark fresh legal challenges.

Many countries, officials said, already met U.S. requests — using secure biometric passports, for example, and willingly passing along terrorism and criminal-history information. Others agreed to make changes and share more data. But some were either unable or unwilling to give the United States what it needed, officials said.

Citing an attack in London earlier this month, Trump seemed to call for an expansion of the travel ban, writing on Twitter, “The travel ban into the United States should be far larger, tougher and more specific-but stupidly, that would not be politically correct!”

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We’ll see how it all plays out!

PWS

09-25-17

Here’s the full text of Trump’s order:

The White House
Office of the Press Secretary
For Immediate ReleaseSeptember 24, 2017
Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats

ENHANCING VETTING CAPABILITIES AND PROCESSES FOR DETECTING ATTEMPTED ENTRY INTO THE UNITED STATES BY TERRORISTS OR OTHER PUBLIC-SAFETY THREATS
– – – – – – –
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION
In Executive Order 13780 of March 6, 2017 (Protecting the Nation from Foreign Terrorist Entry into the United States), on the recommendations of the Secretary of Homeland Security and the Attorney General, I ordered a worldwide review of whether, and if so what, additional information would be needed from each foreign country to assess adequately whether their nationals seeking to enter the United States pose a security or safety threat. This was the first such review of its kind in United States history. As part of the review, the Secretary of Homeland Security established global requirements for information sharing in support of immigration screening and vetting. The Secretary of Homeland Security developed a comprehensive set of criteria and applied it to the information-sharing practices, policies, and capabilities of foreign governments. The Secretary of State thereafter engaged with the countries reviewed in an effort to address deficiencies and achieve improvements. In many instances, those efforts produced positive results. By obtaining additional information and formal commitments from foreign governments, the United States Government has improved its capacity and ability to assess whether foreign nationals attempting to enter the United States pose a security or safety threat. Our Nation is safer as a result of this work.
Despite those efforts, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, has determined that a small number of countries — out of nearly 200 evaluated — remain deficient at this time with respect to their identity-management and information-sharing capabilities, protocols, and practices. In some cases, these countries also have a significant terrorist presence within their territory.
As President, I must act to protect the security and interests of the United States and its people. I am committed to our ongoing efforts to engage those countries willing to cooperate, improve information-sharing and identity-management protocols and procedures, and address both terrorism-related and public-safety risks. Some of the countries with remaining inadequacies face significant challenges. Others have made strides to improve their protocols and procedures, and I commend them for these efforts. But until they satisfactorily address the identified inadequacies, I have determined, on the basis of recommendations from the Secretary of Homeland Security and other members of my Cabinet, to impose certain conditional restrictions and limitations, as set forth more fully below, on entry into the United States of nationals of the countries identified in section 2 of this proclamation.
NOW, THEREFORE, I, DONALD J. TRUMP, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(f) and 1185(a), and section 301 of title 3, United States Code, hereby find that, absent the measures set forth in this proclamation, the immigrant and nonimmigrant entry into the United States of persons described in section 2 of this proclamation would be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions. I therefore hereby proclaim the following:
Section 1. Policy and Purpose. (a) It is the policy of the United States to protect its citizens from terrorist attacks and other public-safety threats. Screening and vetting protocols and procedures associated with visa adjudications and other immigration processes play a critical role in implementing that policy. They enhance our ability to detect foreign nationals who may commit, aid, or support acts of terrorism, or otherwise pose a safety threat, and they aid our efforts to prevent such individuals from entering the United States.
(b) Information-sharing and identity-management protocols and practices of foreign governments are important for the effectiveness of the screening and vetting protocols and procedures of the United States. Governments manage the identity and travel documents of their nationals and residents. They also control the circumstances under which they provide information about their nationals to other governments, including information about known or suspected terrorists and criminal-history information. It is, therefore, the policy of the United States to take all necessary and appropriate steps to encourage foreign governments to improve their information-sharing and identity-management protocols and practices and to regularly share identity and threat information with our immigration screening and vetting systems.
(c) Section 2(a) of Executive Order 13780 directed a “worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat.” That review culminated in a report submitted to the President by the Secretary of Homeland Security on July 9, 2017. In that review, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, developed a baseline for the kinds of information required from foreign governments to support the United States Government’s ability to confirm the identity of individuals seeking entry into the United States as immigrants and nonimmigrants, as well as individuals applying for any other benefit under the immigration laws, and to assess whether they are a security or public-safety threat. That baseline incorporates three categories of criteria:
(i) Identity-management information. The United States expects foreign governments to provide the information needed to determine whether individuals seeking benefits under the immigration laws are who they claim to be. The identity-management information category focuses on the integrity of documents required for travel to the United States. The criteria assessed in this category include whether the country issues electronic passports embedded with data to enable confirmation of identity, reports lost and stolen passports to appropriate entities, and makes available upon request identity-related information not included in its passports.
(ii) National security and public-safety information. The United States expects foreign governments to provide information about whether persons who seek entry to this country pose national security or public-safety risks. The criteria assessed in this category include whether the country makes available, directly or indirectly, known or suspected terrorist and criminal-history information upon request, whether the country provides passport and national-identity document exemplars, and whether the country impedes the United States Government’s receipt of information about passengers and crew traveling to the United States.
(iii) National security and public-safety risk assessment. The national security and public-safety risk assessment category focuses on national security risk indicators. The criteria assessed in this category include whether the country is a known or potential terrorist safe haven, whether it is a participant in the Visa Waiver Program established under section 217 of the INA, 8 U.S.C. 1187, that meets all of its requirements, and whether it regularly fails to receive its nationals subject to final orders of removal from the United States.
(d) The Department of Homeland Security, in coordination with the Department of State, collected data on the performance of all foreign governments and assessed each country against the baseline described in subsection (c) of this section. The assessment focused, in particular, on identity management, security and public-safety threats, and national security risks. Through this assessment, the agencies measured each country’s performance with respect to issuing reliable travel documents and implementing adequate identity-management and information-sharing protocols and procedures, and evaluated terrorism-related and public-safety risks associated with foreign nationals seeking entry into the United States from each country.
(e) The Department of Homeland Security evaluated each country against the baseline described in subsection (c) of this section. The Secretary of Homeland Security identified 16 countries as being “inadequate” based on an analysis of their identity-management protocols, information-sharing practices, and risk factors. Thirty-one additional countries were classified “at risk” of becoming “inadequate” based on those criteria.
(f) As required by section 2(d) of Executive Order 13780, the Department of State conducted a 50-day engagement period to encourage all foreign governments, not just the 47 identified as either “inadequate” or “at risk,” to improve their performance with respect to the baseline described in subsection (c) of this section. Those engagements yielded significant improvements in many countries. Twenty-nine countries, for example, provided travel document exemplars for use by Department of Homeland Security officials to combat fraud. Eleven countries agreed to share information on known or suspected terrorists.
(g) The Secretary of Homeland Security assesses that the following countries continue to have “inadequate” identity-management protocols, information-sharing practices, and risk factors, with respect to the baseline described in subsection (c) of this section, such that entry restrictions and limitations are recommended: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. The Secretary of Homeland Security also assesses that Iraq did not meet the baseline, but that entry restrictions and limitations under a Presidential proclamation are not warranted. The Secretary of Homeland Security recommends, however, that nationals of Iraq who seek to enter the United States be subject to additional scrutiny to determine if they pose risks to the national security or public safety of the United States. In reaching these conclusions, the Secretary of Homeland Security considered the close cooperative relationship between the United States and the democratically elected government of Iraq, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment to combating the Islamic State of Iraq and Syria (ISIS).
(h) Section 2(e) of Executive Order 13780 directed the Secretary of Homeland Security to “submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means.” On September 15, 2017, the Secretary of Homeland Security submitted a report to me recommending entry restrictions and limitations on certain nationals of 7 countries determined to be “inadequate” in providing such information and in light of other factors discussed in the report. According to the report, the recommended restrictions would help address the threats that the countries’ identity-management protocols, information-sharing inadequacies, and other risk factors pose to the security and welfare of the United States. The restrictions also encourage the countries to work with the United States to address those inadequacies and risks so that the restrictions and limitations imposed by this proclamation may be relaxed or removed as soon as possible.
(i) In evaluating the recommendations of the Secretary of Homeland Security and in determining what restrictions to impose for each country, I consulted with appropriate Assistants to the President and members of the Cabinet, including the Secretaries of State, Defense, and Homeland Security, and the Attorney General. I considered several factors, including each country’s capacity, ability, and willingness to cooperate with our identity-management and information-sharing policies and each country’s risk factors, such as whether it has a significant terrorist presence within its territory. I also considered foreign policy, national security, and counterterrorism goals. I reviewed these factors and assessed these goals, with a particular focus on crafting those country-specific restrictions that would be most likely to encourage cooperation given each country’s distinct circumstances, and that would, at the same time, protect the United States until such time as improvements occur. The restrictions and limitations imposed by this proclamation are, in my judgment, necessary to prevent the entry of those foreign nationals about whom the United States Government lacks sufficient information to assess the risks they pose to the United States. These restrictions and limitations are also needed to elicit improved identity-management and information-sharing protocols and practices from foreign governments; and to advance foreign policy, national security, and counterterrorism objectives.
(ii) After reviewing the Secretary of Homeland Security’s report of September 15, 2017, and accounting for the foreign policy, national security, and counterterrorism objectives of the United States, I have determined to restrict and limit the entry of nationals of 7 countries found to be “inadequate” with respect to the baseline described in subsection (c) of this section: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen. These restrictions distinguish between the entry of immigrants and nonimmigrants. Persons admitted on immigrant visas become lawful permanent residents of the United States. Such persons may present national security or public-safety concerns that may be distinct from those admitted as nonimmigrants. The United States affords lawful permanent residents more enduring rights than it does to nonimmigrants. Lawful permanent residents are more difficult to remove than nonimmigrants even after national security concerns arise, which heightens the costs and dangers of errors associated with admitting such individuals. And although immigrants generally receive more extensive vetting than nonimmigrants, such vetting is less reliable when the country from which someone seeks to emigrate exhibits significant gaps in its identity-management or information-sharing policies, or presents risks to the national security of the United States. For all but one of those 7 countries, therefore, I am restricting the entry of all immigrants.
(iii) I am adopting a more tailored approach with respect to nonimmigrants, in accordance with the recommendations of the Secretary of Homeland Security. For some countries found to be “inadequate” with respect to the baseline described in subsection (c) of this section, I am restricting the entry of all nonimmigrants. For countries with certain mitigating factors, such as a willingness to cooperate or play a substantial role in combatting terrorism, I am restricting the entry only of certain categories of nonimmigrants, which will mitigate the security threats presented by their entry into the United States. In those cases in which future cooperation seems reasonably likely, and accounting for foreign policy, national security, and counterterrorism objectives, I have tailored the restrictions to encourage such improvements.
(i) Section 2(e) of Executive Order 13780 also provided that the “Secretary of State, the Attorney General, or the Secretary of Homeland Security may also submit to the President the names of additional countries for which any of them recommends other lawful restrictions or limitations deemed necessary for the security or welfare of the United States.” The Secretary of Homeland Security determined that Somalia generally satisfies the information-sharing requirements of the baseline described in subsection (c) of this section, but its government’s inability to effectively and consistently cooperate, combined with the terrorist threat that emanates from its territory, present special circumstances that warrant restrictions and limitations on the entry of its nationals into the United States. Somalia’s identity-management deficiencies and the significant terrorist presence within its territory make it a source of particular risks to the national security and public safety of the United States. Based on the considerations mentioned above, and as described further in section 2(h) of this proclamation, I have determined that entry restrictions, limitations, and other measures designed to ensure proper screening and vetting for nationals of Somalia are necessary for the security and welfare of the United States.
(j) Section 2 of this proclamation describes some of the inadequacies that led me to impose restrictions on the specified countries. Describing all of those reasons publicly, however, would cause serious damage to the national security of the United States, and many such descriptions are classified.
Sec. 2. Suspension of Entry for Nationals of Countries of Identified Concern. The entry into the United States of nationals of the following countries is hereby suspended and limited, as follows, subject to categorical exceptions and case by-case waivers, as described in sections 3 and 6 of this proclamation:
(a) Chad.
(i) The government of Chad is an important and valuable counterterrorism partner of the United States, and the United States Government looks forward to expanding that cooperation, including in the areas of immigration and border management. Chad has shown a clear willingness to improve in these areas. Nonetheless, Chad does not adequately share public-safety and terrorism-related information and fails to satisfy at least one key risk criterion. Additionally, several terrorist groups are active within Chad or in the surrounding region, including elements of Boko Haram, ISIS-West Africa, and al-Qa’ida in the Islamic Maghreb. At this time, additional information sharing to identify those foreign nationals applying for visas or seeking entry into the United States who represent national security and public-safety threats is necessary given the significant terrorism-related risk from this country.
(ii) The entry into the United States of nationals of Chad, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is hereby suspended.
(b) Iran.
(i) Iran regularly fails to cooperate with the United States Government in identifying security risks, fails to satisfy at least one key risk criterion, is the source of significant terrorist threats, and fails to receive its nationals subject to final orders of removal from the United States. The Department of State has also designated Iran as a state sponsor of terrorism.
(ii) The entry into the United States of nationals of Iran as immigrants and as nonimmigrants is hereby suspended, except that entry by such nationals under valid student (F and M) and exchange visitor (J) visas is not suspended, although such individuals should be subject to enhanced screening and vetting requirements.
(c) Libya.
(i) The government of Libya is an important and valuable counterterrorism partner of the United States, and the United States Government looks forward to expanding on that cooperation, including in the areas of immigration and border management. Libya, nonetheless, faces significant challenges in sharing several types of information, including public-safety and terrorism-related information necessary for the protection of the national security and public safety of the United States. Libya also has significant inadequacies in its identity-management protocols. Further, Libya fails to satisfy at least one key risk criterion and has been assessed to be not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States. The substantial terrorist presence within Libya’s territory amplifies the risks posed by the entry into the United States of its nationals.
(ii) The entry into the United States of nationals of Libya, as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is hereby suspended.
(d) North Korea.
(i) North Korea does not cooperate with the United States Government in any respect and fails to satisfy all information-sharing requirements.
(ii) The entry into the United States of nationals of North Korea as immigrants and nonimmigrants is hereby suspended.
(e) Syria.
(i) Syria regularly fails to cooperate with the United States Government in identifying security risks, is the source of significant terrorist threats, and has been designated by the Department of State as a state sponsor of terrorism. Syria has significant inadequacies in identity-management protocols, fails to share public-safety and terrorism information, and fails to satisfy at least one key risk criterion.
(ii) The entry into the United States of nationals of Syria as immigrants and nonimmigrants is hereby suspended.
(f) Venezuela.
(i) Venezuela has adopted many of the baseline standards identified by the Secretary of Homeland Security and in section 1 of this proclamation, but its government is uncooperative in verifying whether its citizens pose national security or public-safety threats. Venezuela’s government fails to share public-safety and terrorism-related information adequately, fails to satisfy at least one key risk criterion, and has been assessed to be not fully cooperative with respect to receiving its nationals subject to final orders of removal from the United States. There are, however, alternative sources for obtaining information to verify the citizenship and identity of nationals from Venezuela. As a result, the restrictions imposed by this proclamation focus on government officials of Venezuela who are responsible for the identified inadequacies.
(ii) Notwithstanding section 3(b)(v) of this proclamation, the entry into the United States of officials of government agencies of Venezuela involved in screening and vetting procedures — including the Ministry of the Popular Power for Interior, Justice and Peace; the Administrative Service of Identification, Migration and Immigration; the Scientific, Penal and Criminal Investigation Service Corps; the Bolivarian National Intelligence Service; and the Ministry of the Popular Power for Foreign Relations — and their immediate family members, as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is hereby suspended. Further, nationals of Venezuela who are visa holders should be subject to appropriate additional measures to ensure traveler information remains current.
(g) Yemen.
(i) The government of Yemen is an important and valuable counterterrorism partner, and the United States Government looks forward to expanding that cooperation, including in the areas of immigration and border management. Yemen, nonetheless, faces significant identity-management challenges, which are amplified by the notable terrorist presence within its territory. The government of Yemen fails to satisfy critical identity-management requirements, does not share public-safety and terrorism-related information adequately, and fails to satisfy at least one key risk criterion.
(ii) The entry into the United States of nationals of Yemen as immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas, is hereby suspended.
(h) Somalia.
(i) The Secretary of Homeland Security’s report of September 15, 2017, determined that Somalia satisfies the information-sharing requirements of the baseline described in section 1(c) of this proclamation. But several other considerations support imposing entry restrictions and limitations on Somalia. Somalia has significant identity-management deficiencies. For example, while Somalia issues an electronic passport, the United States and many other countries do not recognize it. A persistent terrorist threat also emanates from Somalia’s territory. The United States Government has identified Somalia as a terrorist safe haven. Somalia stands apart from other countries in the degree to which its government lacks command and control of its territory, which greatly limits the effectiveness of its national capabilities in a variety of respects. Terrorists use under-governed areas in northern, central, and southern Somalia as safe havens from which to plan, facilitate, and conduct their operations. Somalia also remains a destination for individuals attempting to join terrorist groups that threaten the national security of the United States. The State Department’s 2016 Country Reports on Terrorism observed that Somalia has not sufficiently degraded the ability of terrorist groups to plan and mount attacks from its territory. Further, despite having made significant progress toward formally federating its member states, and its willingness to fight terrorism, Somalia continues to struggle to provide the governance needed to limit terrorists’ freedom of movement, access to resources, and capacity to operate. The government of Somalia’s lack of territorial control also compromises Somalia’s ability, already limited because of poor recordkeeping, to share information about its nationals who pose criminal or terrorist risks. As a result of these and other factors, Somalia presents special concerns that distinguish it from other countries.
(ii) The entry into the United States of nationals of Somalia as immigrants is hereby suspended. Additionally, visa adjudications for nationals of Somalia and decisions regarding their entry as nonimmigrants should be subject to additional scrutiny to determine if applicants are connected to terrorist organizations or otherwise pose a threat to the national security or public safety of the United States.
Sec. 3. Scope and Implementation of Suspensions and Limitations. (a) Scope. Subject to the exceptions set forth in subsection (b) of this section and any waiver under subsection (c) of this section, the suspensions of and limitations on entry pursuant to section 2 of this proclamation shall apply only to foreign nationals of the designated countries who:
(i) are outside the United States on the applicable effective date under section 7 of this proclamation;
(ii) do not have a valid visa on the applicable effective date under section 7 of this proclamation; and
(iii) do not qualify for a visa or other valid travel document under section 6(d) of this proclamation.
(b) Exceptions. The suspension of entry pursuant to section 2 of this proclamation shall not apply to:
(i) any lawful permanent resident of the United States;
(ii) any foreign national who is admitted to or paroled into the United States on or after the applicable effective date under section 7 of this proclamation;
(iii) any foreign national who has a document other than a visa — such as a transportation letter, an appropriate boarding foil, or an advance parole document — valid on the applicable effective date under section 7 of this proclamation or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission;
(iv) any dual national of a country designated under section 2 of this proclamation when the individual is traveling on a passport issued by a non-designated country;
(v) any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or
(vi) any foreign national who has been granted asylum by the United States; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
(c) Waivers. Notwithstanding the suspensions of and limitations on entry set forth in section 2 of this proclamation, a consular officer, or the Commissioner, United States Customs and Border Protection (CBP), or the Commissioner’s designee, as appropriate, may, in their discretion, grant waivers on a case-by-case basis to permit the entry of foreign nationals for whom entry is otherwise suspended or limited if such foreign nationals demonstrate that waivers would be appropriate and consistent with subsections (i) through (iv) of this subsection. The Secretary of State and the Secretary of Homeland Security shall coordinate to adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants.
(i) A waiver may be granted only if a foreign national demonstrates to the consular officer’s or CBP official’s satisfaction that:
(A) denying entry would cause the foreign national undue hardship;
(B) entry would not pose a threat to the national security or public safety of the United States; and
(C) entry would be in the national interest.
(ii) The guidance issued by the Secretary of State and the Secretary of Homeland Security under this subsection shall address the standards, policies, and procedures for:
(A) determining whether the entry of a foreign national would not pose a threat to the national security or public safety of the United States;
(B) determining whether the entry of a foreign national would be in the national interest;
(C) addressing and managing the risks of making such a determination in light of the inadequacies in information sharing, identity management, and other potential dangers posed by the nationals of individual countries subject to the restrictions and limitations imposed by this proclamation;
(D) assessing whether the United States has access, at the time of the waiver determination, to sufficient information about the foreign national to determine whether entry would satisfy the requirements of subsection (i) of this subsection; and
(E) determining the special circumstances that would justify granting a waiver under subsection (iv)(E) of this subsection.
(iii) Unless otherwise specified by the Secretary of Homeland Security, any waiver issued by a consular officer as part of the visa adjudication process will be effective both for the issuance of a visa and for any subsequent entry on that visa, but will leave unchanged all other requirements for admission or entry.
(iv) Case-by-case waivers may not be granted categorically, but may be appropriate, subject to the limitations, conditions, and requirements set forth under subsection (i) of this subsection and the guidance issued under subsection (ii) of this subsection, in individual circumstances such as the following:
(A) the foreign national has previously been admitted to the United States for a continuous period of work, study, or other long-term activity, is outside the United States on the applicable effective date under section 7 of this proclamation, seeks to reenter the United States to resume that activity, and the denial of reentry would impair that activity;
(B) the foreign national has previously established significant contacts with the United States but is outside the United States on the applicable effective date under section 7 of this proclamation for work, study, or other lawful activity;
(C) the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry would impair those obligations;
(D) the foreign national seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry would cause the foreign national undue hardship;
(E) the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
(F) the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee), and the foreign national can document that he or she has provided faithful and valuable service to the United States Government;
(G) the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOIA), 22 U.S.C. 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under the IOIA;
(H) the foreign national is a Canadian permanent resident who applies for a visa at a location within Canada;
(I) the foreign national is traveling as a United States Government-sponsored exchange visitor; or
(J) the foreign national is traveling to the United States, at the request of a United States Government department or agency, for legitimate law enforcement, foreign policy, or national security purposes.
Sec. 4. Adjustments to and Removal of Suspensions and Limitations. (a) The Secretary of Homeland Security shall, in consultation with the Secretary of State, devise a process to assess whether any suspensions and limitations imposed by section 2 of this proclamation should be continued, terminated, modified, or supplemented. The process shall account for whether countries have improved their identity-management and information-sharing protocols and procedures based on the criteria set forth in section 1 of this proclamation and the Secretary of Homeland Security’s report of September 15, 2017. Within 180 days of the date of this proclamation, and every 180 days thereafter, the Secretary of Homeland Security, in consultation with the Secretary of State, the Attorney General, the Director of National Intelligence, and other appropriate heads of agencies, shall submit a report with recommendations to the President, through appropriate Assistants to the President, regarding the following:
(i) the interests of the United States, if any, that continue to require the suspension of, or limitations on, the entry on certain classes of nationals of countries identified in section 2 of this proclamation and whether the restrictions and limitations imposed by section 2 of this proclamation should be continued, modified, terminated, or supplemented; and
(ii) the interests of the United States, if any, that require the suspension of, or limitations on, the entry of certain classes of nationals of countries not identified in this proclamation.
(b) The Secretary of State, in consultation with the Secretary of Homeland Security, the Secretary of Defense, the Attorney General, the Director of National Intelligence, and the head of any other executive department or agency (agency) that the Secretary of State deems appropriate, shall engage the countries listed in section 2 of this proclamation, and any other countries that have information-sharing, identity-management, or risk-factor deficiencies as practicable, appropriate, and consistent with the foreign policy, national security, and public-safety objectives of the United States.
(c) Notwithstanding the process described above, and consistent with the process described in section 2(f) of Executive Order 13780, if the Secretary of Homeland Security, in consultation with the Secretary of State, the Attorney General, and the Director of National Intelligence, determines, at any time, that a country meets the standards of the baseline described in section 1(c) of this proclamation, that a country has an adequate plan to provide such information, or that one or more of the restrictions or limitations imposed on the entry of a country’s nationals are no longer necessary for the security or welfare of the United States, the Secretary of Homeland Security may recommend to the President the removal or modification of any or all such restrictions and limitations. The Secretary of Homeland Security, the Secretary of State, or the Attorney General may also, as provided for in Executive Order 13780, submit to the President the names of additional countries for which any of them recommends any lawful restrictions or limitations deemed necessary for the security or welfare of the United States.
Sec. 5. Reports on Screening and Vetting Procedures. (a) The Secretary of Homeland Security, in coordination with the Secretary of State, the Attorney General, the Director of National Intelligence, and other appropriate heads of agencies shall submit periodic reports to the President, through appropriate Assistants to the President, that:
(i) describe the steps the United States Government has taken to improve vetting for nationals of all foreign countries, including through improved collection of biometric and biographic data;
(ii) describe the scope and magnitude of fraud, errors, false information, and unverifiable claims, as determined by the Secretary of Homeland Security on the basis of a validation study, made in applications for immigration benefits under the immigration laws; and
(iii) evaluate the procedures related to screening and vetting established by the Department of State’s Bureau of Consular Affairs in order to enhance the safety and security of the United States and to ensure sufficient review of applications for immigration benefits.
(b) The initial report required under subsection (a) of this section shall be submitted within 180 days of the date of this proclamation; the second report shall be submitted within 270 days of the first report; and reports shall be submitted annually thereafter.
(c) The agency heads identified in subsection (a) of this section shall coordinate any policy developments associated with the reports described in subsection (a) of this section through the appropriate Assistants to the President.
Sec. 6. Enforcement. (a) The Secretary of State and the Secretary of Homeland Security shall consult with appropriate domestic and international partners, including countries and organizations, to ensure efficient, effective, and appropriate implementation of this proclamation.
(b) In implementing this proclamation, the Secretary of State and the Secretary of Homeland Security shall comply with all applicable laws and regulations, including those that provide an opportunity for individuals to enter the United States on the basis of a credible claim of fear of persecution or torture.
(c) No immigrant or nonimmigrant visa issued before the applicable effective date under section 7 of this proclamation shall be revoked pursuant to this proclamation.
(d) Any individual whose visa was marked revoked or marked canceled as a result of Executive Order 13769 of January 27, 2017 (Protecting the Nation from Foreign Terrorist Entry into the United States), shall be entitled to a travel document confirming that the individual is permitted to travel to the United States and seek entry under the terms and conditions of the visa marked revoked or marked canceled. Any prior cancellation or revocation of a visa that was solely pursuant to Executive Order 13769 shall not be the basis of inadmissibility for any future determination about entry or admissibility.
(e) This proclamation shall not apply to an individual who has been granted asylum by the United States, to a refugee who has already been admitted to the United States, or to an individual granted withholding of removal or protection under the Convention Against Torture. Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, or protection under the Convention Against Torture, consistent with the laws of the United States.
Sec. 7. Effective Dates. Executive Order 13780 ordered a temporary pause on the entry of foreign nationals from certain foreign countries. In two cases, however, Federal courts have enjoined those restrictions. The Supreme Court has stayed those injunctions as to foreign nationals who lack a credible claim of a bona fide relationship with a person or entity in the United States, pending its review of the decisions of the lower courts.
(a) The restrictions and limitations established in section 2 of this proclamation are effective at 3:30 p.m. eastern daylight time on September 24, 2017, for foreign nationals who:
(i) were subject to entry restrictions under section 2 of Executive Order 13780, or would have been subject to the restrictions but for section 3 of that Executive Order, and
(ii) lack a credible claim of a bona fide relationship with a person or entity in the United States.
(b) The restrictions and limitations established in section 2 of this proclamation are effective at 12:01 a.m. eastern daylight time on October 18, 2017, for all other persons subject to this proclamation, including nationals of:
(i) Iran, Libya, Syria, Yemen, and Somalia who have a credible claim of a bona fide relationship with a person or entity in the United States; and
(ii) Chad, North Korea, and Venezuela.
Sec. 8. Severability. It is the policy of the United States to enforce this proclamation to the maximum extent possible to advance the national security, foreign policy, and counterterrorism interests of the United States. Accordingly:
(a) if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this proclamation and the application of its other provisions to any other persons or circumstances shall not be affected thereby; and
(b) if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid because of the lack of certain procedural requirements, the relevant executive branch officials shall implement those procedural requirements to conform with existing law and with any applicable court orders.
Sec. 9. General Provisions. (a) Nothing in this proclamation shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-fourth day of September, in the year of our Lord two thousand seventeen, and of the Independence of the United States of America the two hundred and forty-second.
DONALD J. TRUMP

NBC’S PETE WILLIAMS REPORTS: “Trump to Replace Travel Ban With Revised Requirements”

https://www.nbcnews.com/news/us-news/trump-replace-travel-ban-revised-requirements-n803836

NBC’S veteran Legal Reporter Pete Williams (one of my all-time favorites) reports:

“WASHINGTON — The White House could issue new requirements this weekend for travelers entering the United States, replacing President Donald Trump’s controversial ban on visitors from six Muslim countries, administration officials tell NBC News.

The announcement, expected by Sunday, will supersede the 90-day travel ban on issuing visas to visitors from Iran, Libya, Somalia, Sudan, Syria, and Yemen, which expires Sunday.

The new restrictions will be based on a Homeland Security and State Department review of the kinds of information that must be provided about visitors and immigrants hoping to enter the U.S. The new guidelines are aimed at preventing terrorists and other security threats from entering the country, officials said.

Following the review, the State Department asked U.S. diplomats around the world to gather the information from foreign governments, warning that visitors will be eligible to enter the country only after the requests are fulfilled.

Once those responses came back, Homeland Security and State Departments reported to the White House on which countries agreed to provide the required information and conform to US requirements, and which did not.

Based on that report, the White House is expected to announce the new restrictions, probably in the form of a presidential proclamation, administration officials said. For many countries on the list, visas will be restricted, meaning that only specified categories of travelers can get them.

Any country that flunks the test can get itself off the list by agreeing to conform to the US requirements, which include issuing electronic passports with a photo, regularly reporting passport thefts, and notifying the US of suspected terrorists. Plus countries must also “take measures to ensure that they are not and do not have the potential to become a terrorist safe haven.”

The original White House order, imposed in January, caused chaos in some of the nation’s airports as customs officials were left to interpret the meaning of the surprise order. After it was struck down in court, a revised order was issued in March.

The executive orders have faced a litany of legal challenges. The Supreme Court ruled in June that parts of the current travel ban could be enforced until the court hears argument, on October 10, about whether the president had authority to impose it in the first place.

Lawyers tell NBC News they are unsure what this latest move could mean for the case.”

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I think this action by the Administration is likely to “moot out” the case currently pending before the Supreme Court. That seems to be the result the Court was “hinting at” when it issued its partial stay earlier this summer.

PWS

09-22-17

DOUBLE WHAMMY: BIA “BRAND X’s” Ninth Circuit On Material Misrepresentation & Extrajudicial Killings — Effectively Overrules Article III’s Interpretation! — Matter of D-R-, 27 I&N Dec. 105 ( BIA 2017)!

https://www.justice.gov/sites/default/files/pages/attachments/2017/09/14/3902_0.pdf

PANEL: BIA Appellate Immigration Judges Grant, Malphrus, Mullane

OPINION BY: Judge Malphrus

HEADNOTES:

“(1) A misrepresentation is material under section 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2012), when it tends to shut off a line of inquiry that is relevant to the alien’s admissibility and that would predictably have disclosed other facts relevant to his eligibility for a visa, other documentation, or admission to the United States. Forbes v. INS, 48 F.3d 439 (9th Cir. 1995), not followed.

(2) In determining whether an alien assisted or otherwise participated in extrajudicial killing, an adjudicator should consider (1) the nexus between the alien’s role, acts, or inaction and the extrajudicial killing and (2) his scienter, meaning his prior or contemporaneous knowledge of the killing. Miranda Alvarado v. Gonzales, 449 F.3d 915 (9th Cir. 2006), not followed.”

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Chief Justice John Marshall must be turning over in his grave at how with Chevron and Brand X the Supremes have turned the judicial authority of the United States over to administrative judges within the Executive Branch. Why have an Article III Judiciary at all if it is too timid, afraid, or unqualified to rule on questions of law?

PWS

09-18-17

IMMIGRATIONPROF: Dean Kevin Johnson Gives Us The Supreme’s “Immigration Lineup” For Oct. 2107 — It’s Much More Than Just The Travel Ban!

http://lawprofessors.typepad.com/immigration/2017/09/sessions-v-dimaya-oral-argument-october-2-jennings-v-rodriguez-oral-argument-oct-3-trump-v-intl-refugee-assistance-p.html

Dean Johnson writes:

”The Supreme Court will hear four oral argument in four cases in the first two weeks of the 2017 Term. And the cases raise challenging constitutional law issues that could forecever change immigration law. Watch this blog for previews of the oral arguments in the cases.

Sessions v. Dimaya, Oral Argument October 2. The U.S. Court of Appeals for the Ninth Circuit, in an opinion by the liberal lion Judge Stephen Reinhardt, held that a criminal removal provision, including the phrase “crime of violence,” was void for vagueness.

Jennings v. Rodriguez, Oral Argument, October 3. The Ninth Circuit, in an opinion by Judge Kim McLane Wardlaw, found that the indefinite detention of immigrants violated the U.S. Constitution.

Dimaya and Jennings are being re-argued, both having originally been argued before Justice Scalia. One can assume that the eight Justice Court was divided and that Justice Gorsuch may well be the tiebreaker.

The final two immigration cases are the “travel ban” cases arising out of President Trump’s March Executive Order:

Trump v. Int’l Refugee Assistance Project. Oral Argument October 10.

Trump v. Hawaii. Oral Argument October 10.”

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Go on over to ImmigrationProf Blog at the above link where they have working links that will let you learn about the issues in these cases.

PWS

09-18-17

THE GIBSON REPORT FOR 09-18-17

GIBSON REPORT 09-18-17A

HEADLINES:

TOP UPDATES

SCOTUS Immigration Cases This Term
· Sessions v. Dimaya, Oral Argument October 2.
· Jennings v. Rodriguez, Oral Argument, October 3.
· Trump v. Int’l Refugee Assistance Project. Oral Argument October 10.
· Trump v. Hawaii. Oral Argument October 10.
· In travel-ban case, justices stay Ninth Circuit ruling

NY Governor Issues Executive Order Restricting Inquiry Into Immigration Status
ImmProf: “New York Governor Andrew M. Cuomo has issued Executive Order 170 that prohibits state agencies and officers from inquiring about or disclosing an individual’s immigration status unless required by law or necessary to determine eligibility for a benefit or service. Law enforcement officers will also be prohibited from inquiring about immigration status unless investigating illegal criminal activity.”

Trump Administration Loses Again in “Sanctuary City” Funding Case
ImmProf: “In a ruling with national impact, a federal judge in Chicago on Friday blocked the Trump administration’s rules requiring so-called sanctuary cities to cooperate with immigration agents in order to get a public safety grant.”

The Administration Is Late on Sudan/South Sudan TPS
CNN: “The Department of Homeland Security is overdue for a decision about Sudan and South Sudan; there are 1,039 temporarily protected immigrants from Sudan in the United States and 49 from South Sudan, according to data provided by US Citizenship and Immigration Services. Their status is set to expire November 2, and federal law requires a decision 60 days before the deadline and timely publication of that decision.”

ICE Wants to Destroy Its Records of In-Custody Deaths, Sexual Assault, and Other Detainee Files
The Nation: “In July, the National Archives and Records Administration (NARA)—the agency charged with maintaining records produced by the federal government—published a request made by Immigrations and Customs Enforcement (ICE) to begin destroying detainee records, including those related to in-custody deaths, sexual assault, and the use of solitary confinement. The request has been preliminarily approved.” The request predates the current administration.

Drastic drop in US admissions is bad news for Muslim refugees
Frelick: “This August, just 913 refugees were resettled into the U.S., the smallest monthly total in 15 years, according to the State Department’s refugee database.
The religious identity of refugees resettled to the United States also shifted dramatically.”

ICE Confirms Deportation Officers Arrested Four At Brooklyn Courthouse
Gothamist: “Three plainclothes agents with Immigration and Customs Enforcement entered Brooklyn Criminal Court on Thursday morning, “lurked,” and made multiple arrests outside, according to attorneys with Brooklyn Defender Services [BDS], a public defender organization.”

CALLS TO ACTION

· Monday September 25th a DACA Day of Action: AILA and NYLS Pro Bono DACA Renewal Clinic Volunteer Sign-Up link.

· Four Easy Ways to Advocate for the Dream Act

· Tell Congress to Stand Up for Refugee Resettlement: Right now, the Trump administration is deciding how many refugees we welcome into the United States next fiscal year.

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PWS

09-18-17

5TH CIR BONKS BIA: Misdemeanor Evading Arrest Under Texas Penal Code § 38.04 (2011) Is NOT A CIMT! — Laryea v. Sessions

-5thCIMT

Laryea v. Sessions, 5th Cir., 09-12-17 (unpublished — sadly)

PANEL:

DAVIS, GRAVES, and COSTA, Circuit Judges.

PER CURIAM

KEY QUOTE:

“Here, examining the record of conviction, Laryea was convicted of a Class A misdemeanor, which does not involve flight using a vehicle. We hold that fleeing from a police officer, without more, does not rise to the level of moral turpitude because it is not “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”21 Therefore, we find that the conduct involved in Laryea’s offense, “intentionally flee[ing] from a person he knows is a peace officer

attempting lawfully to arrest or detain him,” is not a CIMT.”

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The standard for crimes involving moral turpitude seems to me to be completely subjective and highly arbitrary. Hard to see how it passes constitutional muster, but it has, over many years. Interestingly, it appears that this Respondent was able to file his own petition for review. I wonder if he had “informal help.”

PWS

09-14-17

THIS IS DUE PROCESS? — 10th Cir. Rips BIA’s Anti-Asylum Decision-Making — BIA Ignores Record, Makes Up Law To “Stick It” To PRC Asylum Seeker! — Qiu v. Sessions! — “The nonsensical nature of the BIA’s supposed reasoning on this point is illustrative of the BIA’s failure to give fair consideration to any of the arguments in Petitioner’s motion to reopen in this case, and it represents the very definition of an abuse of discretion!” — Read My Latest “Mini-Essay” — “HOW THE BIA FAILS TO PROVIDE FAIRNESS AND DUE PROCESS TO ASYLUM SEEKERS!”

16-9522

Qiu v. Sessions, 10th Cir., 09-12-17

PANEL: PHILLIPS, McKAY, and McHUGH, Circuit Judges.

OPINION BY: Judge McKay

KEY QUOTES:

The BIA held that Petitioner had not submitted sufficient evidence to show a change in country conditions, and thus that her motion to reopen was untimely under 8 U.S.C. § 1229a(c)(7)(C). The BIA first held that Petitioner had not submitted sufficient evidence to show that the treatment of Christians in China has worsened since her 2011 immigration hearing. This factual finding is not supported by substantial—or, indeed, any—evidence in the record. The agency provided no rational explanation as to how numerous accounts of a 300 percent increase in the persecution of Christians, “unprecedented violations” of religious freedoms beginning in 2014, and possibly “the most egregious and persistent” wave of persecution against Christians since the Cultural Revolution of 1966–76 was insufficient to show that the treatment of Christians in China had worsened since 2011. Nor is there anything in the record that would contradict Petitioner’s extensive evidence of a substantial increase in the government’s mistreatment of Christians since 2011. The BIA pointed to the fact that some portions of the State Department’s 2014 report include substantially similar language to the 2008 and 2009 reports. However, the State Department’s habit of cutting and pasting portions of its old reports into newer reports does nothing to refute all of the other evidence that the level and intensity of persecution against Christians has increased significantly since 2011. Nor does anything in the State Department report suggest that the U.S. Commission and various human-rights organizations are all reporting false data or drawing false conclusions about the deterioration of the treatment of Christians in China. The BIA thus abused its discretion by holding, completely contrary to all of the evidence, that Petitioner had not shown that the treatment of Christians in China has worsened in recent years.

The BIA also suggested that the substantial increase in the persecution of Christians was simply irrelevant because “[a] review of the record before the Immigration Judge indicated that China has long repressed religious freedom, and that underground or unregistered churches continued to experience varying degrees of official interference, harassment, and repression, including breaking up services, fines, detention, beatings, and torture.” (R. at 5.) However, the fact that there was already some level of persecution in China does not prevent Petitioner from showing a change in country conditions due to a significant increase in the level of persecution faced by Christians in her country. To hold otherwise would be to bar reopening for petitioners who file for asylum when they face some, albeit insufficient, risk of persecution in their country, while permitting reopening for petitioners who file for asylum without there being any danger of persecution, then seek reopening after their country fortuitously begins persecuting people who are in their protected category thereafter. But surely Congress did not intend for 8 U.S.C. § 1229a(c)(7)(C) to protect only petitioners who file frivolous asylum applications under no threat of persecution, while extending no help to petitioners who seek reopening after an existing pattern of persecution becomes dramatically worse. The BIA’s reasoning would lead to an absurd result, one we cannot condone.

Instead, we agree with the Second, Seventh, Ninth, and Eleventh Circuits that a significant increase in the level of persecution constitutes a material change in country conditions for purposes of 8 U.S.C. § 1229a(c)(7)(C) and that the BIA abuses its discretion when it fails to assess and consider a petitioner’s evidence that the persecution of others in his protected category has substantially worsened since the initial application. See Paul v. Gonzales, 444 F.3d 148, 157 (2d Cir. 2006) (“Proof that persecution of Christians in Pakistan has become more common, intense, or far-reaching—i.e., the very proof that petitioner purports to have presented in filing his motion to reopen—would clearly bear on this objective inquiry [into the likelihood of future persecution]. Under the circumstances, the BIA’s refusal even to consider such evidence constitutes an abuse of discretion.”); Poradisova v. Gonzales, 420 F.3d 70, 81–82 (2d Cir. 2005) (holding that the BIA abused its discretion in denying a motion to reopen based on worsened country conditions: evidence that the human-rights situation in Belarus is “in an ‘accelerating deterioration’” and “that the situation has worsened since the Poradisovs’ original application” “certainly warranted more than a perfunctory (and clearly inaccurate) mention by the BIA as being ‘merely cumulative’”); Shu Han Liu v. Holder, 718 F.3d 706, 709, 712–13 (7th Cir. 2013) (holding that a petitioner seeking to file an untimely motion to reopen must meet her burden of “show[ing] that Chinese persecution of Christians (of her type) had worsened,” and concluding that the BIA abused its discretion in ignoring evidence that current conditions in China were worse than conditions at the date of the petitioner’s final removal hearing); Chandra v. Holder, 751 F.3d 1034, 1039 (9th Cir. 2014) (“The BIA abused its discretion when it failed to assess Chandra’s evidence that treatment of Christians in Indonesia had deteriorated since his 2002 removal hearing.”); Jiang v. U.S. Attorney Gen., 568 F.3d 1252, 1258 (11th Cir. 2009) (holding that the BIA clearly abused its discretion by overlooking or “inexplicably discount[ing]” evidence of “the recent increased enforcement of the one-child policy” in the petitioner’s province and hometown).

Finally, the BIA rejected Petitioner’s mother’s statement regarding her recent religious persecution in Petitioner’s hometown as both unreliable and irrelevant. The BIA held that the statement was unreliable for two reasons: (1) it was unsworn, and (2) it was prepared for the purposes of litigation. The first of these reasons is incorrect both as a matter of fact and as a matter of law. Petitioner’s mother concluded her statement by expressly swearing to the truth of everything she had stated therein, and thus the BIA’s factual finding that the statement was unsworn is refuted by the record. And even if the BIA were correct in its factual finding, we note that several “[o]ther circuits have admonished the Board for dismissing or according little weight to a statement due to its unsworn nature.” Yu Yun Zhang v. Holder, 702 F.3d 878, 881 (6th Cir. 2012). There is no statutory support for the BIA’s contention that documents at immigration hearings must be sworn, and “numerous courts,” “without so much as pausing to note the unsworn nature of a document, . . . have relied on such documents when considering claims of asylum applicants.” Zuh v. Mukasey, 547 F.3d 504, 509 (4th Cir. 2008). “Moreover,” the Fourth Circuit noted in Zuh, “it seems untenable to require a sworn statement from a person harassed because of a relationship with an asylum applicant and potentially endangered by helping that applicant.” Id.; see also Yu Yun Zhang, 702 F.3d at 881 (“Given the documented persecution of Christians in China, it seems an arbitrarily high threshold to require that letters attesting to government abuse and admitting membership in a persecuted organization be notarized.”).

As for the BIA’s second reason for rejecting the statement as unreliable, the fact that the evidence was prepared while litigation was ongoing is all but inevitable in the context of a motion to reopen, and we hold that the BIA may not entirely dismiss an asylum applicant’s evidence as unreliable based solely on the timing of its creation. Neither the BIA decision nor the government brief cites to a single statute or circuit court decision to support the idea that the timing of a statement’s creation is a dispositive or even permissible factor in evaluating its reliability in an asylum case. Furthermore, we note that the Sixth Circuit has held that it simply “does not matter that [evidence] may have been written for the express purpose of supporting [a petitioner’s] motion to reopen,” citing for support to a Ninth Circuit case which held that the BIA may not “denigrate the credibility” of letters written by the petitioner’s friends based simply on the inference that her friends “‘would tend to write supportive letters.’” Yu Yun Zhang, 702 F.3d at 882 (quoting Zavala-Bonilla v. INS, 730 F.3d 562, 565 (9th Cir. 1984)). We need not resolve this broader question in the case before us today; even if the timing of a statement’s creation might perhaps play some role in determining its credibility and the weight it should be afforded, the BIA cannot entirely dismiss a statement as unreliable based simply on the fact that it was prepared for purposes of litigation. The protections that the asylum statute was intended to provide would be gutted if we permitted the BIA to entirely reject all evidence presented by an asylum applicant that is prepared following the filing of the initial asylum application, and we see neither legal or logical support for such a ruling. We accordingly hold that the BIA abused its discretion in this case by rejecting Petitioner’s mother’s statement as unreliable based solely on the (erroneous) finding that it was unsworn and on the timing of its creation.

Finally, the BIA dismissed Petitioner’s mother’s statement as irrelevant because “the respondent’s mother is not similarly situated to the respondent, inasmuch as the incidents giving rise to her purported violations occurred in China, not in the United States.” (R. at 4.) This reasoning defies understanding. The heart of the matter is whether Petitioner will be persecuted if she is removed to China—to the town where her mother has allegedly been persecuted for the religious beliefs she shares with Petitioner, and where the local police have allegedly made threatening statements about Petitioner—and it is simply absurd to dismiss her mother’s experiences as irrelevant because her mother’s experiences occurred in China. Indeed, it is the very fact that her mother’s experiences occurred in China that makes them relevant to Petitioner’s motion to reopen. Tinasmuch as the incidents giving rise to her purported violations occurred in China, not in the United States.” (R. at 4.) This reasoning defies understanding. The heart of the matter is whether Petitioner will be persecuted if she is removed to China—to the town where her mother has allegedly been persecuted for the religious beliefs she shares with Petitioner, and where the local police have allegedly made threatening statements about Petitioner—and it is simply absurd to dismiss her mother’s experiences as irrelevant because her mother’s experiences occurred in China. Indeed, it is the very fact that her mother’s experiences occurred in China that makes them relevant to Petitioner’s motion to reopen. The nonsensical nature of the BIA’s supposed reasoning on this point is illustrative of the BIA’s failure to give fair consideration to any of the arguments in Petitioner’s motion to reopen in this case, and it represents the very definition of an abuse of discretion.

The BIA provided no rational, factually supported reason for denying Petitioner’s motion to reopen. We conclude that the BIA abused its discretion by denying the motion on factually erroneous, legally frivolous, and logically unsound grounds, and we accordingly remand this case back to the BIA for further consideration. In so doing, we express no opinion as to the ultimate merits of the case.”

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HOW THE BIA FAILS TO PROVIDE FAIRNESS AND DUE PROCESS TO ASYLUM SEEKERS

Paul Wickham Schmidt

United States Immigration Judge (Retired)

Everyone should read the Tenth Circuit’s full opinion detailing the mounds of evidence that the BIA ignored and/or mischaracterized, at the above ink.

Folks, the 10th Circuit, former home of Justice Neil Gorsuch, is hardly known as a “haven” for asylum seekers. So, that the 10th finally is fed up with the BIA’s biased anti-asylum seeker decision making speaks volumes.

I’ve made the observation before that the BIA appears to be on “anti-asylum autopilot.” This looks for all the world like a “cut and paste” denial mass-produced by BIA staff from boilerplate that is unrelated to the facts, evidence, or, as this case shows, even the law. The BIA sometimes twists the law against asylum seekers; other times, as in this case, the BIA simply pretends that the law doesn’t exist by ignoring it. I can just imagine the BIA opinion drafter thinking to him or her self, “Oh boy, another routine PRC motion denial. This should sail through the panel without any problem. Need to get those numbers up for the month.”

This is not an isolated incident. As I’ve pointed out before, there is a strong anti-asylum bias in the BIA’s decisions. Virtually no BIA precedents (particularly since the “Ashcroft purge” when true deliberation and dissent were tossed out the window) illustrate how commonly arising situations can and should result in many more grants to asylum seekers under the generous principles enunciated by the Supreme Court in INS v. Cardoza-Fonseca and by the BIA in Matter of Mogharrabi, yet routinely ignored by today’s BIA.

The majority of asylum seekers are credible individuals coming from countries where persecution, torture, and human rights abuses are well-documented. Even in the Northern Triangle, where the BIA has intentionally skewed the law against asylum seekers, torture by gangs by and cartels while the corrupt government authorities are either complicit or “willfully blind” abounds. The BIA, and some U.S. Immigration Judges, have to work overtime and routimely turn a blind eye to both facts and the law to deny protection in the majority of cases.

At a minimum, most Southern Border arrivals fleeing gang violence should be getting temporary grants of protection under the CAT. Instead, they are often railroaded out of the country, sometimes without even seeing a U.S. Immigration Judge, other times with no legal assistance to help them in making a claim. And, the Sessions-led Justice Department had the absolute gall to claim that this lawless and unconstitutional behavior amounts to a “return to the rule of law” at EOIR!

Where’s the outrage from this type of gross abuse of the system by politicos who should have no role in the operations of the U.S. Immigration Courts? Where is the Congressional oversight of Sessions’s use of the USDOJ as a tool to advance a blatantly restrictionist, White Nationalist political agenda? How does a system that functions this poorly, on all levels, justify elimination of annual in-person training of U.S. Immigration Judges?

When you read the full decision, you can see the voluminous evidentiary package that the respondent’s counsel put together just to get a reopened hearing. And, it resulted in an illegal denial by the BIA. Only an appeal to a Court of Appeals saved the day. How could any unrepresented asylum seeker achieve due process in a system that demands unreasonable documentation, routinely denies individuals the legal assistance necessary to assemble and present such evidence, and then ignores the evidence when it is presented? What kind of due process is this?

And, the Article III Courts have to shoulder some of blame. In particular, the Fifth Circuit “goes along to get along” with the BIA, and turns a blind eye to violations of human rights laws and skewed factfinding in “rubber stamping” inadequate hearings coming from detention centers in obscure locations in Texas.

Reiterating a point I’ve made numerous times, why is a captive, enforcement-oriented, pro-Government tribunal that performs in the manner detailed in this case entitled to “deference” on either the facts or the law (so-called “Cheveon deference” that has been criticized by Justice Gorsuch and others)? What’s “expert” about a tribunal that routinely ignores and misconstrues basic asylum law as detailed in this decision?

At a minimum, in light of the types of gross miscarriages of justice that have come to light in some recent Court of Appeals decisions, the BIA should change its internal operating procedures to require that all asylum denials be reviewed by a three-judge panel. But, don’t hold your breath. That would slow down the “assembly line” at the “Falls Church Service Center.” And turning out large numbers of final orders of removal without any real deliberation is what the “Sessions-Era BIA & EOIR” is all about.

Folks, we need an independent U.S. Immigration Court, including a competent Appellate Division (“BIA”). And in the future, selections of BIA Appellate Immigration Judges should be made in the same careful manner that applies to U.S. Supreme Court and Court of Appeals Judges.

The “life and death” power wielded by U.S. Immigration Judges and BIA Appellate Immigration Judges actually exceeds that of most Article III Judges. Yet the selection process for the Immigration Judiciary is opaque, cumbersome, secretive, closed, and consistently produces one-sided results skewed toward “insiders” or those with government experience. In other words, those with a history of “going along to get along” in the system rather than showing independent thinking and the courage to stand up for due process even when it isn’t “in vogue” with the politicos in an Administration (and genuine due process for migrants is seldom”in vogue” these days in either GOP or Democratic Administrations).

Proven expertise, excellence, sensitivity to individual situations, and commitment to due process for migrants and correct application of human rights law and protections should be a minimum qualification for an Appellate Immigration Judge. And, the same question should be asked that was asked of Justice Gorsuch: “If necessary, are you willing to stand up and rule against the President and the Administration.” Obviously, in the case of the current BIA, the answer would largely be “No.”

PWS

09-13-17

SUPREMES SIDE WITH TRUMP — LEAVE REFUGEE BAN IN PLACE (FOR NOW)!

https://www.washingtonpost.com/politics/courts_law/supreme-court-agrees-with-trump-administration-says-some-refugees-can-be-barred-for-now/2017/09/12/f38d5884-97ee-11e7-82e4-f1076f6d6152_story.html?hpid=hp_rhp-top-table-main_travelban704pm%3Ahomepage%2Fstory&utm_term=.69d624f195a7 Continue reading SUPREMES SIDE WITH TRUMP — LEAVE REFUGEE BAN IN PLACE (FOR NOW)!

CONTINUING SAGA OF TRAVEL BAN 2.0: Justice Kennedy Issues Temporary Stay!

https://www.washingtonpost.com/world/national-security/justice-dept-again-asks-supreme-court-to-allow-broad-enforcement-of-travel-ban/2017/09/11/6c3853ae-970b-11e7-87fc-c3f7ee4035c9_story.html?hpid=hp_rhp-more-top-stories_travelban-255pm%3Ahomepage%2Fstory&utm_term=.23095c0b5b6e

Matt Zapotosky reports in the Washington Post:

“U.S. officials can at least temporarily continue to block refugees with formal assurances from resettlement agencies from entering the United States after the Supreme Court intervened again Monday to save a piece of President Trump’s travel ban.

Responding to an emergency request from the Justice Department, Justice Anthony M. Kennedy stopped an earlier federal appeals court ruling that had allowed refugees with a formal assurance to enter the country.

Kennedy, who handles cases on an emergency basis from the U.S. Court of Appeals for the 9th Circuit, ordered those suing over the ban to respond by noon Tuesday, and he indicated that the appeals court ruling in their favor would be stayed “pending receipt” of their response.

The Supreme Court’s decision came not long after the Justice Department asked the justices to act. That filing, by Acting Solicitor General Jeffrey B. Wall, demonstrated the lengths to which the government is willing to go to impose its desired version of the ban, even before the high court takes up in earnest next month whether the measure is lawful at its core. At issue is whether the president can block a group of about 24,000 refugees with assurances from entering the United States after the Supreme Court decided in June to permit a limited version of his travel ban to take effect.”

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Read the full at the link.

The beat goes on!

PWS

09-11-17

UNPUBLISHED 2D CIR REMINDS BIA THAT “PERSECUTION”DOESN’T REQUIRE ACTUAL PHYSICAL HARM — Mann v. Sessions

MANN AKA v. SESSIONS III | FindLaw

KEY QUOTE:

“Were the only grounds available to Mann those of future persecution, we would be inclined to affirm. But however unsuccessful Mann’s case may be with respect to future persecution, without a full consideration of the first prong of “persecution”, that is, of “past persecution”, the IJ’s analysis is incomplete, and thus the result in this suit invalid. In evaluating a past persecution claim, the agency must consider the harm suffered in the aggregate.

In evaluating a past persecution claim, the agency must consider the harm suffered in the aggregate. Poradisova, 420 F.3d at 79-80. Past persecution can be established by harm other than threats to life or freedom, including “non-life-threatening violence and physical abuse,” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006). And, while the harm must be severe, rising above “mere harassment,” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006), it is sufficient, in order to show past persecution, that the applicant was “within the zone of risk when [a] family member was harmed, and suffered some continuing hardship after the incident.” Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007).

Mann’s claim of past persecution rested on the following incidents: Mann and his brother were longtime members of the Congress Party. Members of opposition parties, the Akali Dal Party and the Bharatiya Janata Party (“BJP”) had successively solicited Mann and his brother’s departure from the Congress Party to join their parties. After Mann and his brother refused to depart the Congress Party, the opposition party members stopped Mann and his brother in the street and assaulted Mann’s brother. At the time of the assault, both Mann and his brother were in a car in the middle of doing political work. Mann managed to escape the car and their attackers. His brother, however, was severely injured: he both lost a leg and suffered mental incapacitation. Subsequently, Mann fled his hometown, residing in Chandigarh, a neighboring city, for two months, and, after that, moved to Delhi. During that time, his family was responsible for caring for his brother’s permanent disabilities and injuries.

Upon review, the IJ found the fact that Mann himself had not suffered physical harm to be dispositive of his past persecution claim. Yet physical harm is not always needed for a showing of past persecution. And, it is not required in an analysis undertaken under Tao Jiang’s “zone of risk” and “continuing hardship” tests.

Because (i) the IJ’s analysis does not directly address the question of whether Mann was sufficiently within “the zone of risk” when a family member (here, his brother) was seriously harmed, and, (ii) it is certainly conceivable that on direct reconsideration Mann’s flight from his hometown and help to his family in caring for his brother constitutes the sufferance of “some continuing hardship,” we hereby GRANT Mann’s petition for review, and VACATE the decision of the BIA. We REMAND Mann’s claim of persecution to the BIA for further consideration in light of Tao Jiang’s “zone of risk” and “continuing hardship” requirements.”

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Another example of faulty asylum analysis by the BIA. Why does the Supreme Court require Federal Courts to “defer” to a supposedly “expert” administrative tribunal that all too often appears to have less expertise in applying asylum law than the Article III Courts? Also, why doesn’t the Second Circuit publish helpful cases like this so that they can be widely cited and used as a tool to improve BIA adjudications?

According to the UN Handbook, credible asylum seekers should be given “the benefit of the doubt.” That’s not happening in some Immigration Courts and on some BIA panels.Why not? What’s the excuse?

Just another example of why we need an independent Article I Immigration Court. And, we need a diverse BIA with real expertise and an overriding commitment to fairness, due process, careful appellate adjudication, and correct application of human rights laws.

PWS

09-11-17

“JRUBE” IN WASHPOST: DEPT OF IN–JUSTICE: Under “Gonzo Apocalypto” White Nationalist, Xenophobic, Homophobic Political Agenda Replaces “Rule Of Law” — Latest DOJ Litigation Positions Fail “Straight Face” Test: “making up rules willy-nilly so as to show its rabid xenophobic base it is adhering to its promise of racial and ethnic exclusion!” — Read My “Mini-Essay” On How Advocates and U.S. Courts Could Restore Justice & Due Process To Our Broken U.S. Immigration Courts!

https://www.washingtonpost.com/blogs/right-turn/wp/2017/09/08/trump-is-getting-rotten-legal-advice-and-once-again-it-shows/?utm_term=.e34528c36b2c

Jennifer Rubin writes in “Right Turn” in the Washington Post:

“The 9th Circuit gave the back of the hand to the argument that the Trump administration could borrow a definition from another section of the immigration statute to exclude grandmothers. The Supreme Court had used mothers-in-law as an example of a close familial relationship it wanted to protect. The 9th Circuit judges wrote: “Plaintiffs correctly point out that the familial relationships the Government seeks to bar from entry are within the same ‘degree of kinship’ as a mother-in-law.” It’s hard to make a case that grandmothers would not qualify. It does not appear that the government even made a good-faith effort to apply the Supreme Court’s direction.

On one level, it’s shocking that a Republican administration that is supposed to be a defender of “family values” would take such a miserly position. But, of course, family values are of little consequence to an administration that is more than willing to repeal the Deferred Action for Childhood Arrivals program, auguring for the breakup of intimate family relations (e.g., one sibling gets deported but American-born siblings remain).

The 9th Circuit also looked at the administration’s argument that a refugee with a formal assurance of settlement lacks a bona fide relationship with some entity or individual in the United States. The court set out the laborious screening process refugees undertake (making a mockery of the notion these people are a security threat) and noted that after all those steps are completed the refugee gets a sponsorship assurance “from one of nine private non-profit organizations, known as resettlement agencies.” The 9th Circuit held: “The Government contends that a formal assurance does not create a bona fide relationship between a resettlement agency and a refugee, and stresses that ‘[t]he assurance is not an agreement between the resettlement agency and the refugee; rather, it is an agreement between the agency and the federal government.’ But the Supreme Court’s stay decision specifies that a qualifying relationship is one that is ‘formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the Executive Order].”’”

Again, one cannot help but come away with the impression that the government is throwing up every half-baked idea it can find to limit the number of people entering the country, regardless of the national security risk or the hardship its action inflicts. The Trump administration is plainly reasoning backward — deny as many people as possible admittance and then think up a reason to justify its position.

In its fixation with keeping as many immigrants out of the United States as possible, the Trump administration cannot claim to merely be following the dictates of the law. (Gosh it’s out of our hands — “Dreamers” and grandmas have to go!) It is making up rules willy-nilly so as to show its rabid xenophobic base it is adhering to its promise of racial and ethnic exclusion. It’s hard to believe seasoned career Justice Department lawyers agree with these arguments. In its oversight hearings Congress should start grilling Attorney General Jeff Sessions as to how he comes up with his cockamamie legal arguments and whether political appointees are running roughshod over career DOJ lawyers.

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Read Rubin’s full article at the link.

Mini-Essay:

TIME FOR ACTION ON THE BROKEN U.S. IMMIGRATION COURTS — IF CONGRESS WON’T ACT, THE FEDERAL COURTS MUST

Paul Wickham Schmidt

United States Immigration Judge (Retired)

If nothing else, the Trump Administration has given me a new appreciation for the Post’s “JRube.” She certainly has “dialed up” Gonzo’s number and exposed what’s behind his pompous, disingenuous misuse of the term “rule of law.”

No chance that a GOP Senate with Chuck Grassley as Judiciary Chair is going to hold Gonzo accountable for his daily perversions of “justice.” But, at some point, Federal Courts could begin sanctioning DOJ lawyers for willful misrepresentations (the Hawaii arguments before the 9th contained several) and frivolous positions in litigation. It’s possible that some DOJ lawyers all the way up to Gonzo himself could be referred by Federal Judges to state bar authorities for a look at whether their multiple violations of ethical standards should result suspension of their law licenses.

Another thought kicking around inside my head is that Gonzo’s actions and his public statements are starting to make a plausible case for a due process challenge to the continued operation of the U.S. Immigration Courts.

As with school desegregation, prison reform, and voting rights, a Federal Court could find systematic bias and failure to protect due process. That could result in something like 1) a requirement that the DOJ submit a “due process restoration” plan to the court for approval, or 2) the court appointment of an independent “judicial monitor” to run the courts in a fair and unbiased manner consistent with due process, or 3) the Federal Courts could take over supervision of the US Immigration Courts pending the creation of an Article I (or Article III) replacement.

High on the list of constitutionally-required reforms would be ending the location of courts within DHS detention facilities. All courts should be located in areas where adequate pro bono counsel is reasonably available and accessible. Immigration Courts should be located outside of DHS facilities in buildings accessible to the public with reasonable security requirements. Immigration Judges must be required to continue cases until pro bono counsel can be retained. Alternatively, the Government could provide for appointed counsel.

Another obvious due process reform would be to strip the Attorney General of his (conflict of interest) authority to establish or review precedents and operating procedures for the U.S. Immigration Courts. Along with that, the DHS should be given an equal right to appeal adverse BIA appellate decisions to the Courts of Appeals (rather than seeking relief from the AG — clearly an interested party in relation to immigration enforcement).

There also should be an immediate end to the appointment and supervision of U.S. Immigration Judges by the politically-biased AG. U.S. Immigration Judges and BIA Appellate Immigration Judges should be appointed on a strict merit basis by either an independent judicial monitor or by the U.S. Courts of Appeals until Congress enacts statutory reforms.

The current U.S. Immigration Court system mocks justice in the same way that Jeff “Gonzo Apocalypto” Sessions mocks it almost every day. There might be no practical way to legally remove Gonzo at present, but the Federal Courts could step in to force the U.S. Immigration Courts to undertake due process reforms. The current situation is unacceptable from a constitutional due process standpoint. Something has to change for the better!

PWS

09-09-17\

STATE OF HAWAII V. TRUMP — Read The 9th Circuit’s Full Opinion Here — See The Largely Unsupported Arguments Made By DOJ In Pushing For Extreme Scope of “Travel Ban 2.0” — Understand How & Why Court Blew Them Away!

Here’s the full text:

17-16426–Hawaii-9th-09-17

PANEL: Michael Daly Hawkins, Ronald M. Gould, and Richard A. Paez, Circuit Judges.

OPINION: Per Curiam

KEY QUOTE:

“We are asked to review the district court’s modified preliminary injunction,

which enjoins the Government from enforcing Executive Order 13780 against (1) grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States; and (2) refugees who have formal assurances from resettlement agencies or are in the U.S. Refugee Admissions Program (“USRAP”) through the Lautenberg Amendment.

For the reasons that follow, we conclude that in modifying the preliminary injunction to preserve the status quo, the district court carefully and correctly balanced the hardships and the equitable considerations as directed by the Supreme Court in Trump v. International Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017), and did not abuse its discretion. We affirm.

. . . .

The Government also raises concerns that because about 24,000 refugees have been assured, the district court’s ruling causes the Supreme Court’s stay order to “cover[] virtually no refugee” and renders the order inoperative. The Supreme Court’s stay considered the concrete hardship of U.S.-based persons and entities. See Trump, 137 S. Ct. at 2088–89. The Court’s equitable decision did not express concern about the number of refugees that would fall within the scope of the injunction; rather, the Court’s order clarifies that the Government is still enjoined from enforcing the 50,000-person cap of § 6(b) to exclude refugees who have a bona fide relationship with a U.S. person or entity and are otherwise eligible to enter the United States. Id. at 2089.

Furthermore, the Government’s assertion that the modified injunction renders the Court’s stay order inoperative is false. More than 175,000 refugees currently lack formal assurances. Without another bona fide relationship with a person or entity in the United States, the Executive Order suspends those refugees’ applications. See U.S. Dep’t of Homeland Security, Frequently Asked Questions on Protecting the Nation from Foreign Terrorist Entry into the United States at Q.27, https://www.dhs.gov/news/2017/06/29/frequently-asked-questions- protecting-nation-foreign-terrorist-entry-united-states (last visited Aug. 30, 2017)

(“USCIS officers have been instructed that they should not approve a refugee application unless the officer is satisfied that the applicant’s relationship complies with the requirement to have a credible claim of a bona fide relationship with a person or entity in the United States and was not formed for the purpose of evading the Executive Order.”).

Resettlement agencies will face concrete harms and burdens if refugees with formal assurances are not admitted. In the same way that the Court considered the harms of the U.S. citizen who wants to be reunited with his mother-in-law and the permanent resident who wants to be reunited with his wife, the employer that hired an employee, the university that admitted a student, and the American audience that invited a lecturer, the district court correctly considered the resettlement agency that has given a formal assurance for specific refugees. The district court did not abuse its discretion with regard to this portion of the modified preliminary injunction.

Our decision affirming the district court’s modified preliminary injunction will not take effect until the mandate issues, which would not ordinarily occur until at least 52 days after this opinion is filed. See Fed. R. App. P. 41; Fed. R. App. P. 40(a)(1).

Refugees’ lives remain in vulnerable limbo during the pendency of the Supreme Court’s stay. Refugees have only a narrow window of time to complete their travel, as certain security and medical checks expire and must then be re- initiated. Even short delays may prolong a refugee’s admittance.

Because this case is governed by equitable principles, and because many refugees without the benefit of the injunction are gravely imperiled, we shorten the time for the mandate to issue. See Fed. R. App. P. 41(b). The mandate shall issue five days after the filing of this opinion.

We affirm the district court’s order modifying the preliminary injunction. The mandate shall issue five days after the filing of this opinion.”

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This is how the Trump-Sessions DOJ squanders taxpayer money and wastes U.S Courts’ time. Advancing positions unsupported by law or facts is also what “Gonzo Apocalypto” means when he disingenuously refers to “restoring the rule of law.” Meanwhile, Sessions ignores the real threats to America’s security posed by his buddy Bannon, his flunky Miller, and their White Supremacist allies.

I have predicted that the career DOJ Attorneys in the Solicitor General’s Office, the Office of Immigration Litigation, and elsewhere who are charged with defending Session’s gonzo and often disingenuous political agenda will have “zero credibility” by the time his reign at Justice is over. Problem is that our justice system and particularly our Immigration Courts will be in shambles by the time Sessions is done.

PWS

09-08-17

PETULA DVORAK IN WASHPOST: DISHONEST LEADERS SOW “FALSE FEARS” WHILE IGNORING REAL THREATS!

https://www.washingtonpost.com/local/what-happens-when-a-presidency-runs-on-fakefears-real-fears-are-ignored/2017/09/07/83ead004-93d1-11e7-8754-d478688d23b4_story.html

Dvorak writes:

Fake fear is our new leader.

Washington’s new ruling class is not governing with compassion, common sense, measured research, knowledge of history or the future. Theirs is a doctrine of fake fears. And these same people also have a problem with things we should actually be afraid of.

Let me explain.

Fake Fear: The “bad hombres” President Donald Trump talked about during the campaign last year begot this week’s DACA repeal thing. Trump wants us to be afraid of these immigrants, and he’s ready to trash the lives of more than 800,000 Americans looking for a path to legal residency by killing the Deferred Action for Childhood Arrivals program.

The truth is that these immigrants, brought here as children by their parents, “have lower incarceration rates than native-born Americans of the same age and education level,” according to a report issued last week by the nonpartisan CATO Institute.

Real Fear: Hurricanes. You know them — from Katrina to Harvey to Irma — millions of people and billions of dollars tell you hurricanes devastate lives, cities and industries.

But Trump refuses to fear them. Earlier this year, he proposed a budget that slashed about $667 million for the disaster preparedness programs run by the Federal Emergency Management Agency. That budget also proposed $6 billion in cuts to the Department of Housing and Urban Development, which helps rebuild homes and hospitals.

The fake fear administration also killed a post-Katrina rule requiring building projects eligible for federal funding to take such measures as elevating structures in flood zones away from the reach of rising water before they get government cash. And they did this just in time for hurricane season.

But hey, the $108 billion in damage and the 1,800 lives lost in Hurricane Katrina must not mean much when it your moral compass is fake fear.

Fake fear: The apparent crime wave that Attorney General Jeff Sessions keeps warning Americans about.

“We have a crime problem,” Sessions said in February. “I wish the rise that we are seeing in crime in America today were some sort of aberration or a blip. My best judgment, having been involved in criminal law enforcement for many years, is that this is a dangerous, permanent trend that places the health and safety of the American people at risk.”

But the facts say otherwise.

This year is on pace to have the second-lowest violent crime rate of any year since 1990, according to a report by the Brennan Center for Justice this week that analyzed statistics from the nation’s 30 largest cities.

Real fear: Though we’ve seen more and more horrifying videos of civilians being shot by police officers, we still have little comprehensive data that shows how often this happens and how agencies can prevent these tragedies.

“What we really need to know is how many times police shoot people, not just how many of those people die,” David A. Klinger, a criminal justice professor at the University of Missouri in St. Louis who studies police use of force, told The Washington Post earlier this summer.

The Post began compiling this information in 2015, relying on local news, social media and our own reporting.

This is a real fear for real people. This is true whether you’re a black man, such as beloved cafeteria worker Philando Castile, who was doing nothing wrong when he was killed in Minnesota last year by a nervous police officer. And it’s true if you’re a white woman, like nurse Alex Wubbels, who was seen in a viral video last week being roughed up and arrested by a Utah detective for simply doing her job. The fake fear people seem to have little interest in addressing this problem.

The FBI’s weak, self-reporting system that has been the only way to track this was called “embarrassing and ridiculous” by fired FBI director James B. Comey.

Fake fear: Muslims in America. Trump’s attempts at a travel ban, fulfilling his campaign promise of a “total and complete shutdown of Muslims entering the United States” have reinforced a growing and misplaced Islamophobia throughout our country. We’ve seen the fake-fear sentiment in workplaces, in small-town councils trying to mess with mosques that have been peaceful and unnoticed for years, and I even saw it one of my sons’ sports teams this summer.

The truth is, from 2008 to 2016, right-wing extremists carried out twice as many terrorist attacks on U.S. soil than Islamist extremists, according to a recent report from The Nation Institute’s Investigative Fund and The Center for Investigative Reporting’s Reveal.

Real Fear: White supremacists in America. The FBI and Department of Homeland Security issued a joint intelligence bulletin that said white supremacists “were responsible for 49 homicides in 26 attacks from 2000 to 2016 … more than any other domestic extremist movement.”

They issued this statement just a couple months before the protests in Charlottesville, where an avowed Nazi sympathizer was arrested after a car drove into a crowd, killing 32-year-old Heather Heyer and injuring 19 others. There is no mistaking that was real.

We deserve real care and real concern from our leaders when it comes to real fears. There’s no shortage of them.

Let’s start by calling out #FakeFears when we see them. Washington is full of those these days, too.

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Dvorak succinctly captures what White Nationalist governance and propaganda is all about: fear, loathing, lies. Too cowardly to address real problems because that might offend the “White Nationalist base” that put and keeps them in power.

PWS

09-08-17

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