"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
More than twice as many immigrants have died in the custody of Immigration and Customs and Enforcement this fiscal year than last after two detainees died this week. That brought this year’s total to 17, compared with eight deaths last year.
A 72-year-old Canadian man who had tested positive for the coronavirus died in ICE custody on Wednesday night at a Virginia hospital, the agency said Friday in a statement.
James Thomas Hill reported feeling shortness of breath to staff at an ICE detention facility in Farmville, Virginia, on July 10 and was admitted to Centra Southside Community Hospital before being transferred to Lynchburg General Hospital the following day, ICE said.
A COVID-19 test administered by hospital staff came back positive on July 11, the agency said.
Hill entered ICE custody on April 11 following his release from the Rivers Federal Correctional Institute in North Carolina after serving 13 years of a 26-year prison sentence for health care fraud and distributing a controlled substance, according to ICE. An immigration judge had ordered his removal on May 12, ICE said. At the time of his death, Hill was in ICE custody pending his removal to Canada, the agency said.
The agency said it had notified the Department of Homeland Security’s Office of Inspector General, the ICE Office of Professional Responsibility, the Canadian consulate and Hill’s next of kin. His death was first reported by BuzzFeed News.
A 51-year-old Taiwanese man died Wednesday afternoon at a Florida hospital after being a diagnosed with a “massive intercranial hemorrhage,” ICE said in a separate statement Thursday.
Kuan Hui Lee was found unresponsive at the Krome Service Processing Center in Florida on July 31 and taken to the Kendall Regional Medical Center.
. . . .
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I think this is just the beginning of the true carnage that advocates have been predicting for months. And that doesn’t even count those killed after being “orbited” by DHS in violation of the statute and due process as a complicit Supremes majority egged them on.
The shame of our nation’s intentional dehumanization and mistreatment of asylum seekers and other migrants under the Trump regime won’t be eradicated. What kind of “democracy” runs a “Gulag” for non-criminals where all “sentences” are arbitrary and indefinite and the there is no readily available impartial review of detention by a neutral and detached magistrate? Where Supreme Court Justices worry more about the impact of “nationwide injunctions” and “bogus emergencies” declared by an patently unqualified and invidiously biased Executive than they do about the lives, health, and freedom of individuals whose “crime” is to assert their legal and Constitutional rights?
While the problem starts with a White Nationalist, racist regime and a feckless GOP-controlled Senate under Moscow Mitch, those Federal Judges at all levels who could have put an end to these “crimes against humanity,” but failed to do so, also bear responsibility for the death and destruction of human lives by the regime.
Due Process Forever! Complicit Courts, Never (Again). Better Justices & Judges For A Better America!
Diaz-Reynoso v. Barr, 9th Cir., 08-07-20, published
SYNOPSIS BY COURT STAFF:
Immigration
Granting Sontos Diaz-Reynoso’s petition for review of the Board of Immigration Appeals’ decision affirming the denial of her application for withholding of removal and protection under the Convention Against Torture, and remanding, the panel held that the Board misapplied Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), as well as Board and circuit precedent, in concluding that Diaz-Reynoso’s proposed social group comprised of “indigenous women in Guatemala who are unable to leave their relationship” was not cognizable, and that she failed to establish that the government of Guatemala would acquiesce in any possible torture.
The panel rejected Diaz-Reynoso’s contention that Matter of A-B- was arbitrary and capricious and therefore not entitled to Chevron deference. The panel concluded that, despite the general and descriptive observations set forth in the opinion, Matter of A-B- did not announce a new categorical exception to withholding of removal for victims of domestic violence or other private criminal activity, but rather it reaffirmed the Board’s existing framework for analyzing the cognizability of particular social groups, requiring that such determinations be individualized and conducted on a case-by-case basis.
The panel observed that the Board rejected Diaz- Reynoso’s proposed social group, with almost no analysis,
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
because it “suffered from the same circularity problem articulated by the Attorney General in Matter of A-B-.” The panel explained that in doing so, the Board appeared to misapprehend the scope of Matter of A-B- as forbidding any mention of feared harm within the delineation of a proposed social group. The panel concluded that this was error, explaining that Matter of A-B- did not announce a new rule concerning circularity, but instead merely reiterated the well- established principle that a particular social group must exist independently of the harm asserted. The panel recognized that a proposed social group may be deemed impermissibly circular if, after conducting the proper case-by-case analysis, the Board determines that the group is defined exclusively by the fact that its members have been subjected to harm. The panel explained, however, that a proposed social group is not impermissibly circular merely because the proposed group mentions harm.
The panel concluded that the Board also erred in assuming that domestic violence was the only reason Diaz- Reynoso was unable to leave her relationship, and in failing to conduct the rigorous case-by-case analysis required by Matter of A-B-. The panel therefore remanded Diaz- Reynoso’s withholding of removal claim for the Board to undertake the required analysis applying the correct framework.
Because the Board failed to discuss evidence that Diaz- Reynoso reported her husband’s abuse to authority figures in her village community, and the government conceded remand was warranted, the panel also remanded Diaz-Reynoso’s CAT claim for further consideration.
4 DIAZ-REYNOSO V. BARR
Concurring in the judgment in part and dissenting in part, Judge Bress agreed with remand of the CAT claim in light of the government’s concession, but disagreed with the majority’s conclusion that the Board misread Matter of A-B- in rejecting Diaz-Reynoso’s proposed social group. In Judge Bress’s view, Matter of A-B- held that a proposed group that incorporates harm within its definition is not a group that exists independently of the harm asserted in an application for asylum or statutory withholding of removal. Judge Bress wrote that substantial evidence supported the Board’s assessment that Diaz-Reynoso’s social group was defined exclusively by the harm suffered, and that the Board correctly applied Matter of A-B-, and the circularity rule, in rejecting Diaz-Reynoso’s proposed social group.
COUNSEL:
Gary A. Watt, Stephen Tollafield, and Tiffany J. Gates, Supervising Counsel; Shandyn H. Pierce and Hilda Kajbaf, Certified Law Students; Hastings Appellate Project, San Francisco, California; for Petitioner.
Joseph H. Hunt, Assistant Attorney General; John S. Hogan and Linda S. Wernery, Assistant Directors; Susan Bennett Green, Senior Litigation Counsel; Ashley Martin, Trial Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
Blaine Bookey, Karen Musalo, Neela Chakravartula, and Anne Peterson, Center for Gender & Refugee Studies, U.S. Hastings College of Law, San Francisco, California, for Amicus Curiae Center for Gender & Refugee Studies.
Richard W. Mark, Amer S. Ahmed, Grace E. Hart, and Cassarah M. Chu, Gibson Dunn & Crutcher LLP, New York New York, for Amici Curiae Thirty-Nine Former Immigration Judges and Members of the Board of Immigration Appeals.
Sabrineh Ardalan, Nancy Kelly, John Willshire Carrera, Deborah Anker, and Zachary A. Albun, Attorneys; Rosa Baum, Caya Simonsen, and Ana Sewell, Supervised Law Students; Harvard Immigration and Refugee Clinical Program, Cambridge, Massachusetts; for Amicus Curiae Harvard Immigration and Refugee Clinical Program.
Ana C. Reyes and Alexander J. Kasner, Williams & Connolly LLP, Washington, D.C.; Alice Farmer, United Nations High Commissioner for Refugees, Washington, D.C.; for Amicus Curiae United Nations High Commissioner for Refugees.
PANEL: Ronald M. Gould, Morgan Christen, and Daniel A. Bress, Circuit Judges.
OPINION BY: Judge Cristen
CONCURRING/DISSENTING OPINION: Judge Bress
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Just another example of how under this regime, EOIR’s perverted efforts to deny and deport, especially targeting female asylum seekers from the Northern Triangle for mistreatment and potential deportation to death, waste time and effort that could, in a wiser more just Administration, be used to reduce dockets and waiting times by ensuring that well-documented, deserving cases like this one are rapidly granted. EOIR’s biased performance also reeks of both anti-Latino racism and misogyny. Here we are, two decades into the 21st Century with our immigration “justice” system still being driven by invidious factors.
The Supremes’ majority may feign ignorance and or indifference to Trump’s and Miller’s overtly racist immigration agenda. But, those of us working in the field of immigration had it figured out long ago. It’s not rocket science! The Trumpsters make little or no real attempt to hide their scofflaw intent and invidious motives. It has, disgustingly, taken a concerted and disingenuous effort by the Supremes’ majority to sweep these unconstitutional attacks on humanity under the carpet.
That’s why we need “regime change” in both the Executive and the Senate which will lead to the appointment of better judges for a better America. Justices and judges who will ditch the institutionalized racism and misogyny and who will make equal justice for all under our Constitution a reality rather than the cruel hoax and “throwaway line” that it is today under GOP mis-governance.
Many thanks to our good friends and pro bono counsel at Gibson Dunn for the help in drafting our Amicus Brief!
As the COVID-19 pandemic continues to spread throughout the United States, immigration courts around the country remain in turmoil.
The Executive Office for Immigration Review (“EOIR”) initially postponed all non-detained hearings when lockdowns began in March. However, EOIR refused to close all courts. Hearings for detained immigrants and unaccompanied children continued, despite the risks. Now, nearly five months later, EOIR still has no public plan to limit the spread of COVID-19 as it slowly begins to reopen courts around the country.
Immigration Courts Reopen Across the U.S.
Beginning in mid-June, EOIR began reopening some immigration courts, starting with the Honolulu immigration court.
Since then, courts have reopened for hearings in Boston, Dallas, Las Vegas, Hartford, New Orleans, Cleveland, Philadelphia, Newark, Baltimore, Detroit, and Arlington. However, following the rise in COVID-19 cases in Texas, the Dallas immigration court was open for less than a week before shutting again. It remains closed.
After the court reopened in Newark, immigration lawyers filed a lawsuit seeking to halt the court reopening. They explained that the court has not provided enough safety protocols. According to the lawsuit, they believe at least two deaths, including an immigration lawyer and a clerk for ICE in Newark, can already be traced to court hearings that occurred before the initial shutdown.
At a town hall, the National Association of Immigration Judges discussed the reopening. The union stated that EOIR doesn’t determine which courts reopen. Those decisions come from the local U.S. Attorney, who are political appointees working for the Department of Justice.
No Concrete Plan for Stopping COVID-19 Spread in Courts
Making matters worse, EOIR has still not explained what the criteria are for opening courts. The only safety guidelines the agency has published are simply those generally applicable to the public, such as asking people to socially distance, wear masks, and not appear in court if they have tested positive for COVID-19.
These limited guidelines do not provide anywhere near enough information to ensure safety for people appearing in court.
For example, EOIR fails to explain how translation services will work, which is but one of many unresolved questions about safety. In many courts, interpreters sit directly next to the person for whom they are interpreting so they can hear every word. But social distancing would be impossible in that scenario.
If EOIR wanted to replace all in-person interpretation with telephonic interpretation, that may not be a viable solution. Some people’s cases could be hurt by lower quality interpretation over what are often noisy phone lines.
Courts that have reopened have mostly been hearing only “individual” merits hearings, the equivalent of a trial in the immigration court system. Master calendar hearings, at which dozens of people wait in a courtroom together to review their immigration charges, are not currently happening in most reopened courts.
Lawyers report having cases advanced or postponed with little notice and almost no input. This can be particularly hard for individuals without attorneys. They may be unable to keep track of rapid changes at the courts.
This chaos underscores the need for a public safety plan. EOIR must ensure the public that it can run the courts safely.
Without that plan, the agency’s actions so far reinforce the White House’s goal of keeping the deportation machine running without taking public health into consideration. Before any further courts reopen, EOIR must make its plans clear, or else public health and the right to a fair day in court will continue to suffer.
Some of those caught up by these “crimes against humanity” won’t survive to tell their stories. So, it’s important that those of us who recognize this unending tragedy both document it and insure that history will not let those responsible escape accountability, be they Supreme Court Justices, political leaders, or lower level bureaucrats repeating the hollow “just doing my job” mantra as they enable or carry out these grotesque acts.
For those who watched “Immigration Nation,” how many times did you hear variations of the latter excuse from Federal bureaucrats as they heaped unnecessary, and in many cases illegal and immoral,carnage on their fellow human beings? How many times did you hear folks who are supposed to understand the system falsely use the “get in line” or “do it the right way” lies?
The ugly stain of the Trump regime’s illegal conduct, cowardice, cruelty, dishonesty, and inhumanity, and that of those who aided and abetted it, will not be wiped away!
So what does this all mean? It means that if you are personally connected to the president or have information that could hurt the president, or both, you can be treated far more favorably by this attorney general, as he will bend the law and facts to the president’s desired result. His [Billy the Bigot’s] actions in U.S. v. Stone strike at the heart of the Aristotelian principle central to the rule of law, that we treat likes alike. John Locke warned that “where law ends, tyranny begins.” Now, more than three centuries later, that statement applies to the head of the American system of justice.
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Read the rest of the article at the link.
Billy is destroying the rule of law. Look that the absolute disaster he has created in America’s Star Chambers (a/k/a Immigration “Courts” that aren’t).
But he has help. The GOP Senate that signals a refusal to consider impeachment and Federal Judges who fail to call out his totally unethical, corrupt, and often illegal conduct also are to blame! He should have been removed from office, stripped of his law license, and perhaps prosecuted. Instead, he’s free to abuse.
When the career prosecutors resign from a case, that’s a clear sign that something’s wrong! Yet those empowered to stop the misconduct look the other way.
Let’s put this in perspective. This is an regime that has prosecuted individuals and taken their children away from them for the “crime” of entering the U.S., turning themselves in to the Border Patrol, and applying for asylum. Yet, convicted felons with ties to the President are given preferential treatment.
Stone, a felon, gets favorable treatment, allegedly because of COVID-19. Meanwhile, “civil” immigration detainees who have not been convicted of anything, and are merely waiting for a fair hearing process in Barr’s wholly owned “courts” which he has grossly mismanaged into total dysfunctionality, are subjected to COVID-19 as part of DHS’s “Detain Until Dead” (“DUD”) policy.
Due Process Forever! Corrupt AG’s (Like Barr & Sessions), Never Again!
Opinion by the Editorial Board August 4 at 6:20 PM ET
COVID-19 has exploded at migrant detention centers nationwide, infecting detainees and employees alike and seeding the disease aboard deportation flights to countries ill-equipped to respond, especially in Latin America. The facilities, run by U.S. Immigration and Customs Enforcement, are petri dishes of contagion, and the residents — many of whom have no serious criminal record — are sitting ducks in the crosshairs of an inhumane policy. A federal judge has ordered the release of migrant children at two ICE family detention centers in Texas and one in Pennsylvania, having found them at risk to the virus and to spotty enforcement of safety measures. But across the country, scores more facilities have been hit hard by the pandemic, and ICE has been unable to contain it. [Full coverage of the coronavirus pandemic] Roughly 1,000 new covid-19 cases have been diagnosed in ICE facilities since early July, bringing the number who have tested positive for the disease since March to roughly 4,000. That’s roughly a fifth of all those who have been tested, though some were infected before ICE took them into custody. Courts have ordered more than 500 at-risk detainees released, and ICE has released an additional 900 at its own initiative. Those reductions, along with ongoing deportations, have cut the detainee population by 40 percent since March, to roughly 22,000 now. That’s good, but it is clear that the agency’s steps to mitigate the outbreak have been inadequate. It is also clear that testing at the facilities has lagged, proper distancing at some is insufficient, and health care is not equal to the task of containment. At the Farmville Detention Center in Virginia, west of Richmond, nearly two-thirds of 400 detainees have tested positive for the virus in recent weeks. Moreover, ICE has been complicit in accelerating the pandemic’s reach into Central America, the Caribbean and elsewhere, by deporting tens of thousands of migrants since the spring, including some who were infected. At least a dozen countries assert that deportees arrived with the virus. Many were not tested before boarding the flights. On one deportation flight to India in May, 22 passengers — about 15 percent of those onboard — tested positive upon arriving in India. In Guatemala, authorities say more than 160 deportees who have arrived since April tested positive for the virus. “We understand the United States wants to deport people,” said Guatemalan President Alejandro Giammattei in May. “What we don’t understand is why they send us all these contaminated flights.” [We are interested in hearing about how the struggle to reopen amid the pandemic is affecting people’s lives. Please tell us yours.] Advocates and public health officials have urged ICE to accelerate the release of at-risk detainees, who can be fitted with ankle monitors to encourage their appearance at immigration court proceedings. ICE has done some of that; it is critical that it do more. To continue detaining nonviolent detainees as the virus tightens its grip on ICE facilities is pointless and dangerous — for detainees and for employees, scores of whom have been infected with covid-19. It’s past time for ICE to intensify the fight against covid-19, and reassess a policy that has failed to contain a pandemic behind bars.
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ICE is a White Nationalist enabler operating within a White Nationalist kakistocracy.
Expecting ICE to do the right thing without being ordered to do so by Congress or the Federal Courts is absurd. We’re in the middle of a deadly meltdown of our democratic institutions.
And, led by the Roberts’ Court’s spineless complicity in the face of clear unconstitutionality, illegality, immorality, and inhumanity from the Trump regime, the failure of the Federal Courts to take a strong, unified approach against the “crimes against humanity” committed by the Trump regime on migrants and others is a national disgrace. Something we have to consider as a nation moving forward.
Better judges for a better America! Time to stop appointing “Dred Scottifyers” and non-believers in due process, human rights, and equal justice for all to our life-tenured courts! The damage they have done will take decades to repair. We can’t afford to continue the GOP’s recent tradition of elevating bad judges who won’t stand up for and don’t believe in American democracy.
When our nation is experiencing massive and deadly institutional failure and a failure of legal and moral leadership, we must start looking at the qualifications and values (or in some cases the rather obvious lack thereof) of the folks in those failing institutions! In a democracy, bad leadership doesn’t “drop out of the sky.” It’s a product of bad decisions and apathy among those with the power to select our leaders. That means all of us who can vote or encourage others to vote.
This November, vote like your life and the future of our democracy depend on it! Because they do!
Federal agents are expelling asylum seekers as young as 8 months from the border, citing COVID-19 risks
Thousands of migrant children have been expelled by the Trump administration since March. Some have been held in hotels without access to lawyers or family. Advocates say many are now “virtually impossible” to find.
BY LOMI KRIEL, THE TEXAS TRIBUNE AND PROPUBLICA AUG. 4, 20208 HOURS AGO
A teenage girl carrying her baby arrived at the U.S. border this summer and begged for help. She told federal agents that she feared returning to Guatemala. The man who raped her she said had threatened to make her “disappear.”
Then, advocates say, the child briefly vanished — into the custody of the U.S. government, which held her and her baby for days in a hotel with almost no outside contact before federal officers summarily expelled them from the country.
Under this new policy, the administration is not deporting children — a proceeding based on years of established law that requires a formal hearing in immigration court.
It is instead expelling them — without a judge’s ruling and after only a cursory government screening and no access to social workers or lawyers, sometimes not even their family, while in U.S. custody. The children are not even granted the primary registration number by which the Department of Homeland Security tracks all immigrants in its care, making it “virtually impossible” to find them, Efrén C. Olivares, a lawyer with the Texas Civil Rights Project, wrote in a court declaration arguing that the practice is illegal.
Little is known about how the process works, but published government figures suggest almost all children arriving at the border are being rapidly returned.
. . . .
A sense of deja vu
Thirty-five years ago, a 15-year-old Salvadoran girl fleeing a civil war in her homeland was also imprisoned in an American hotel under the care of unlicensed private security guards. Jenny Flores’ case forced the most significant overhaul yet of how U.S. authorities can detain migrant children. In fact, the 1997 federal settlement is named for her.
Carlos Holguín, who began litigating that case in 1985, said there is now a sense of “deja vu … but the degree of lawlessness is even beyond what was going on then.”
Since taking office, the Trump administration has tried to end the Flores Settlement, arguing that it and a 2008 trafficking law work as “loopholes” encouraging families to send children here alone. The government has attempted to undo the settlement through regulations and requested Congress curtail the Trafficking Victims Protection Reauthorization Act, which requires certain safeguards for children arriving alone at the border.
So far, both efforts have failed.
The administration tried separating parents and children at the border, but a federal judge largely ruled against the practice in 2018, allowing it only in narrow circumstances such as if the adult poses a danger.
U.S. District Judge Dolly Gee, who is in charge of the Flores Settlement, has determined the administration must quickly release children locked up with their parents in immigrant detention centers, most recently citing the risk of coronavirus spreading.
“The family residential centers are on fire and there is no more time for half measures,” she wrote in a June 26 order.
The government is now arguing it can force detained parents to choose between freeing their children or staying indefinitely imprisoned with them.
But none of the administration’s attempts to undo either the settlement or the law have been as effective as the expulsion order, which is “eviscerating every single protection mechanism outlined by Congress and the courts with one sweeping gesture,” said Podkul of KIND.
“We expect all Hilton properties to reject business that would use a hotel in this way,” a Hilton spokesperson said.
Government attorneys agreed to pause the expulsion of the migrants who they said remained in the McAllen hotel on the date of the lawsuit — once again, ACLU attorneys said, mooting litigation on the broader policy. A separate suit involving a 13-year-old Salvadoran girl who was expelled this summer is still pending in a Washington, D.C., federal court.
By the time the administration stopped the removal of the migrants detained at the Hampton Inn, most who had been held there had already been expelled or transferred elsewhere — some, advocates said, just before the ACLU filed its lawsuit. Only 17 family members, including one unaccompanied child, remained in that hotel.
What happened to the rest? No one would say.
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Read the rest of the article at the link.
It might be “below the radar screen” during COVID-19. After all, that’s what criminals like the Trump kakistocracy and their DHS accomplices count on — a diversion so that they can abuse children and violate human rights and human dignity to the content of their evil, White Nationalist hearts.
But, eventually, the truth about the “crimes against humanity” by the regime’s cowards as well as the complicity of legislators, the Roberts Court, and a host of others will come out.
How will we explain to future generations what we have done to our fellow humans, particularly the most vulnerable who have sought our legal protection and found only cruelty, racism, and lawlessness? How will we justify racist-driven institutionalized child abuse and “Dred Scottification” of “the other” on our watch? We have become “Perp Nation!”
Hon. Jeffrey S. Chase Jeffrey S. Chase Blog Coordinator & Chief Spokesperson, Round Table of Former Immigration Judges
Excerpt:
The immigration court system lacks independence. An agency within the Department of Justice, the Executive Office for Immigration Review (EOIR) houses the immigration court system, which consists of trial-level immigration courts and a single appellate tribunal known as the Board of Immigration Appeals (BIA). Immigration judges, including appellate immigration judges, are viewed by EOIR “management” not as judges, but as Department of Justice attorneys who serve at the pleasure and direction of the Nation’s prosecutor-in-chief, the Attorney General.
As former immigration judges, we offer the Court our experience and urge that corrective action is necessary to ensure that immigration judges are permitted to function as impartial adjudicators, as required under the Immigration and Nationality Act. The INA and its implementing regulations set forth procedures for the “timely, impartial, and consistent” resolution of immigration proceedings. See 8 U.S.C. §§ 1103, 1230; 8 C.F.R. § 1003.1(d)(1) (charging the Board with appellate review authority to “resolve the questions before it in a manner that is timely, impartial, and consistent with the [INA] and regulations”) (emphasis added); 8 C.F.R. § 1003.10(b) (similarly requiring “immigration judges . . . to resolve the questions before them in a timely and impartial manner”) (emphasis added).
Although housed inside an enforcement agency and led by the Nation’s chief prosecutor, immigration judges must act neutrally to protect and adjudicate the important rights at stake in immigration cases and check executive overreach in the enforcement of federal immigration law. Applying a detached and learned interpretation of those laws, judges must correct overzealous bureaucrats and policy makers when they overstep the bounds of reasonable interpretation and the requirements of due process.
As I often say, it’s an honor to be a part of this group with so many of my wonderful colleagues. It’s also an honor to be able to assist so many wonderful “divisions and brigades” of the New Due Process Army, like the SPLC and Immigration Law Lab.
Here’s another thought I often express: What if all of this talent, creativity, teamwork, expertise, and energy were devoted to fixing our broken Immigration Court System rather than constantly fighting to end gross abuses that should not be happening? There is a “systemic cost” to “maliciously incompetent” administration and the White Nationalist agenda promoted by the Trump kakistocracy!
I appear, along with many others, in a later episode.
As you watch, ask this question:What does most of the enforcement you see have to do with any legitimate notion of “homeland security” except in the sense that abusing, terrorizing, separating, and removing individuals of color evidently makes some folks in the U.S., particularly Trump supporters, feel “more secure?”
No, it’s not “just enforcing the law!” No law is enforced 100% and most U.S. laws are enforced to just a limited extent due to priorities, funding, and sensible prosecutorial discretion used by every law enforcement agency.
How much does the Trump Administration “enforce” environmental protection laws, civil rights laws, laws protecting the LGBTQ community from discrimination, fair housing laws, financial laws, health and safety laws, tax laws, or for that matter ethics laws, whistleblower protections, or anti-corruption laws?
Although domestic violence hasn’t decreased in ethnic communities, prosecutions have gone down as a result of the Administration’s “terror tactics” as illustrated in Immigration Nation. Jeff “Gonzo Apocalypoto” Sessions’s racially-motivated prosecutions of minor immigration violators, intended to promote family separation and “deter” others from asserting legal rights, actually diverted Federal prosecutorial resources from real crimes like drug trafficking and white collar crimes.
Remember, Jeff Sessions walks free (his biggest “trauma” being a well-deserved primary defeat in Alabama); his victims aren’t so lucky; some of their trauma is permanent; their lives changed for the worse, and in some cases eradicated, forever! Where’s the “justice” and the “rule of law” in this?
Prosecutions are always prioritized and “targeted” in some way or another, sometimes rationally, reasonably, and prudently, and other times with bias and malice. So, as you watch this and hear folks like former Acting ICE Director Tom Homan and other Government officials pontificate about “just enforcing the law” or “required by law,” you should recognize it for the total BS that it is!
The Trump Administration’s immigration enforcement program is clearly designed by folks like Stephen Miller, Sessions, and others to be invidiously motivated and to terrorize communities of color including U.S. citizens and lawful residents who are part of those communities. They are an affront to the concepts of “equal justice under law” and eliminating “institutional racism.”
The Administration’s policies are actually “Dred Scottification” or “dehumanization of the other.” You can see and hear it in the voices of DHS enforcement officials, a number of whom eventually view other humans as “numbers,” “priorities,” “quotas,” “missions,” “ops” (“operations”), “beds,” or “collateral damage.”
That’s exactly how repressive bureaucracies in Germany, the Soviet Union, China, and other authoritarian states have worked and prospered, at least for a time. By breaking dehumanization into “little bureaucratic steps” individuals are relieved of moral responsibility and lulled into losing sight of the “big picture.”
Did the folks repairing the tracks and switches for the German railroads focus on where the boxcars were heading and what eventually would happen to their passengers? Did they even know, wonder, or care what was in those boxcars?
And, in case you wonder, family and child separations, supposedly eventually abandoned by Trump, might have diminished as a result of court cases, but they still regularly occur. Only now they are kept largely “below the radar screen” and disingenuously disguised under the bureaucratic rubric “binary choice.”
What has really diminished is less the abuses and more the national and international outrage about those abuses. Dishonesty, immorality, and cruelty have simply become “normalized” under Trump as long it’s largely “out of sight, out of mind.”
What do you imagine happens to those turned away at our borders without any meaningful process and “orbited” to the Northern Triangle — essentially “war zones?” (Preliminary studies show that many die or disappear.) A majority of the Supremes don’t care, and apparently most Americans don’t either as long as the carnage and tears aren’t popping up on their TV screens.
And, in many cases, the “removals” and denials of fair process, both the ones you see in Immigration Nationand the ones you don’t, are actually detrimental to our nation, our values, our society, and our future. The series mentions “being one on the wrong side of history;” that’s precisely where the DHS is under Trump. But, so is the rest of our nation for having allowed an evil charlatan like Trump to have power over our humanity.
This November, vote like your life and the future of our nation depend on it! Because they do! We can’t undo the past! But, we can make Trump part of that past and change our future for the better!
Atty. Gen. William Barr left us with a terrifying certainty in the wake of his testimony Tuesday in front of the House Judiciary Committee: Under him, the Department of Justice stands ready to advance any pro-Trump policy, justifying it on the basis of a blinkered, tenuous view of the facts and the law, or maybe just Barr’s personal ideological intuitions.
For all its finger-wagging, the Judiciary Committee is not in a position to constrain the attorney general. There is no real brake on Barr’s conduct short of a Trump loss in November. Or, to adopt Barr’s own unsettling gloss, a Trump loss that is sufficiently “clear” that he and his boss would accept it.
Since the hearing, commentators have seized on a couple of blows that Democrats on the Judiciary Committee — Reps. Eric Swalwell (D-Dublin) and Pramila Jayapal (D-Wash.) primarily — landed on the attorney general. But there was nothing close to a knockdown, and the hard facts remain: The House will not impeach Barr and President Trump will continue to give him full rein.
It’s no secret that the Democrats in Congress (and more than half of the country) view Barr as Mephistopheles — dishonest, partisan, corrupt, even racist. He did nothing Tuesday to try to revise that view; in fact, he seemed indifferent to it.
Norms of evenhandedness, professionalism and especially political disinterest, which traditionally check U.S. attorneys general, do not moderate his conduct. He championed every partisan act his DOJ has taken on the president’s behalf, blandly claiming they reflected the faithful application of the rule of law.
For example, when he defended the highly unusual deployment of federal agents in Portland, Ore., Barr described a “Batman”-like dystopia in which a few U.S. marshals were beset by a marauding horde of uncontrollable professional anarchists. If that were accurate, it would be hard to quibble with sending in the feds.
But the justification dries up immediately if the protests were, as a lot of the reporting on the ground indicates, largely peaceful, and if local law enforcement were capable of defending the Portland federal courthouse and separating lawbreakers from peaceful protestors. (The announcement Wednesday that the Department of Homeland Security’s mystery troops were withdrawing suggests the argument for the invasion was tenuous all along.)
Or consider Barr’s legally tortured defense of the president’s memo attempting to exclude immigrants who are in the U.S. illegally from the 2020 census. The plain language of the 14th Amendment, as well as a unanimous opinion of the Supreme Court, leaves no room for argument: Everyone who “inhabits” the U.S. must be counted.
But Barr claims that Congress has delegated to the Commerce Department an ability to advance an Orwellian definition of “inhabitant.” He called it an “arguable position.” It isn’t arguable; it’s wrong.
And given that it is the attorney general’s job to uphold the law of the land, he shouldn’t even bring up the theory, regardless of the half- or quarter-baked views of the president.
Barr’s partisan proclamations went on and on, with this whopper as a high point: “From my experience, the president has played a role properly and traditionally played by presidents.”
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Read the rest of the op-ed at the link.
Beyond Congressional fecklessness, perhaps the most disturbing and scary aspect of Billy’s anti-democracy, anti-humanity, racist agenda is that it has received only “light pushback” from the supposedly independent Article III Courts, particularly the Supremes’ majority led by Roberts.
Private practitioners who made the types of specious, disingenuous, and wrong arguments to Federal Courts advanced by Billy and fellow Trump toady Solicitor General Noel Francisco and their minions would probably have been disbarred or even in jail by now. Not only do these guys continue their wanton destruction of our legal system, but Roberts & Co. sometimes actually reward the DOJ’s fraud, racism, and bad faith.
Crooked and corrupt politicos are one thing. But, Supreme Court Justices who won’t call them out for their invidious motivations, won’t stand up for equal justice under law, allow racist abuses in the guise of patently bogus “national security” and Executive prerogative pretexts, won’t protect refugees, asylum seekers, children, or migrants of color, favor tyranny over humanity, and allow their courts to be paralyzed by frivolous Government litigation, dilatory appeals, and transparently bogus procedural gimmicks are the real problem here!
As Litman points out, despite the “smokescreens” thrown up by Barr and complicit courts, there’s really no ambiguity about what’s happening here. It’s straightforward! It’s a full scale attack on our justice system, our democracy, and our humanity by a bunch of would-be facist thugs operating out of the Executive Branch of our Government. America needs better Justices and Federal Judges who will cut through the legalistic BS, show courage, have integrity, and stand up for democracy, humanity, and equal justice for all!
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”Dan Kowalski Online Editor of the LexisNexis Immigration Law Community (ILC)
Sent: Friday, July 31, 2020 4:16 PM
To: ICLINIC@LIST.MSU.EDU; Immigration Law Professors List
Subject: [immprof] FW: victory in Johnson v. Barr – Colorado possession statute overbroad and indivisble!!!
team,
a huge victory today for one of our clients, and hopefully many other folks in our community.
in Johnson v. Barr, the 10th circuit ruled that the Colorado statute of possession of a controlled substance is overboard as to the federal schedule and indivisible as to the particular controlled substance within a schedule.
the court honed in on the categorical approach, looking first to the plain language of the statute, the penalties assigned under the statute, its unpublished decision in Arellano, and persuasive state case law in deciding in our favor.
-this means that no conviction for possession of a schedule I or II CS can support the CS grounds of inadmissibility or deportability. this will hopefully help countless people who were found inadmissible, deportable, subject to mandatory detention, and ineligible for relief to seek redress of those legal errors.
-by extension, this decision is likely to apply to simply possession of a schedule III-V because it is also overbroad and structured nearly identically to the possession statute at issue in Johnson. moreover, due to legislative change last year classifying all PCS of schedule I-V CS as a DM1 offense starting in 2020, all future PCS offenses are likely also overbroad and indivisible.
this is definitely a day to celebrate. we will see whether the govt seeks rehearing or cert.
As noted by Hans, this decision could have “big-time” impact and result in numerous motions to reopen and “redos.” It’s just another example of how the gimmicks and misinterpretations used and encouraged by the Trump regime as part of their “haste makes waste” deport everyone policies actually create backlogs and waste resources while doing grave injustices.
America needs an independent Article I U.S. Immigration Court with real expert judges, with a commitment to human rights and due process,dedicated to seeing that individual results are fair and just, rather than carrying out a perverted, race and hate driven nativist political agenda to maximize deportations in disregard of the law.
“Eyore In Distress” Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Laura Lynch
Senior Policy Counsel
AILA
Hon. Susan G. Roy Law Office of Susan G. Roy, LLC Princeton Junction, NJ Member, Round Table of Former Immigration Judges
Laura Lynch @ AILA writes:
I wanted to flag this lawsuit that was filed a few hours ago by AILA’s New Jersey Chapter seeking to stop in-person court appearances at the Newark Immigration Court. The attached complaint reveals the following:
“The Newark Immigration Court is no stranger to the devastating effects of COVID-19. The coronavirus spread through the court before it closed in March, and COVID-19 illnesses tragically caused the deaths of both a longtime private immigration attorney and a staffer at the immigration prosecutor’s office, as well as causing the serious illness of both a senior immigration prosecutor and a court translator. More recently, the head of Federal Protective Services at 970 Broad Street in Newark—the building where the Newark Immigration Court is housed—died from COVID-19.”
“Yet, despite the risks posed by the spread of COVID-19, and the actual serious illness and death it has already caused to people involved with the Newark Immigration Court, that court was recently reopened for immigration hearings regarding cases for persons who are not held in detention (the so-called “non-detained docket”). Moreover, even though immigration law and regulations provide for immigration hearings to take place by videoconference—and the Executive Office of Immigration Review, which operates the nation’s immigration courts, has touted its use of such videoconference hearings—the Newark Immigration Court does not provide the option for attorneys or others to appear by videoconference for cases on the non-detained docket.”
The Associated Press wrote a short article about this lawsuit.
It just keeps getting worse and worse. The malicious incompetents at DOJ/EOIR keep endangering lives in an out of their so-called “courts” while those supposedly responsible for “justice in America” let it happen. This is a “Third World Dictatorship-Style Meltdown” happening right here in our country.
How many will have to die or have their lives ruined before this dangerous and dysfunctional embarrassment to humanity is finally put out of its misery (not to mention the misery it brings to others).
This November, vote like your life depends on it! Because it does!
As my long term, friend, Round Table colleague, and member of the “EOIR Founder’sClub,” Judge John Gossart said:
Great news…I was at the hearing which was shameful and disingenuous and a waste of taxpayer money. Well done NAIJ.
That about sums it up!
As the decision pointed out, even as the DOJ/EOIR kakistocracy reduces Immigration Judges basically to “deportation clerks,” stripping them of even minimal authority to control their dockets, and largely circumscribing their exercises of discretion, they make the outrageously fraudulent claim that these “deportation clerk judges” are “managers” to squelch their First Amendment rights to speak out and reveal the ongoing fraud, waste, and abuse at EOIR.
There was a time when public officials might have hesitated to engage in such dishonest conduct in full public view for fear of being held accountable. However, thanks to a feckless Congress and indolent Supremes’ majority, those days are gone.
The Trump kakistocracy now feels free to violate the Constitution, ignore statutes, make disingenuous arguments to courts and other tribunals, lie, and loot the Treasury without fear of consequences other than an occasional “slap on the wrist” when, as in this case, someone actually dares to “just say no” to their degradation of American democracy.
One could easily wonder why a FLRA Regional Director has more courage, integrity, legal knowledge, and a better understanding of what’s really going on in our Immigration “Courts” than a majority of Justices on the Supremes and many Article III Judges who simply “pretend to look away” as these outrageous abuses of our justice system are “normalized” in Billy Barr’s corrupt and unconstitutional “courts.”
One can only hope that legal historians will expose truth and “rip apart” the legacies of those Justices, judges, legislators, and other public officials who allowed these “crimes against humanity” to be carried out with impunity on their watch!
Richard A. Clarke served on the National Security Council for Presidents George H.W. Bush, Bill Clinton and George W. Bush.
President Trump has, often intentionally, damaged essential federal departments and agencies, driving from their ranks thousands of career civil servants who are global experts and national treasures. The country is seeing the results play out at the Centers for Disease Control and Prevention, but such damage has happened across the federal bureaucracy.
No national institution has been more damaged than the Department of Homeland Security. The youngest of the federal departments, the DHS is among the largest by employee count, ranking just below the Defense Department and Veterans Affairs. It was created in 2003 by smashing together 17 agencies from five departments in an ill-conceived response to the 9/11 terrorist attacks. Its divisions and agencies are now largely leaderless, because the White House refuses to nominate senior managers to replace those who have left. Quick, who is the secretary of homeland security?
You get my point.
Trump has done far more damage to the DHS, however, than leaving it leaderless. He has branded it as the department that cages children, swoops innocent citizens off U.S. streets, sends warriors dressed for the apocalypse to deal with protests, hunts down hard-working people doing “essential jobs” to forcibly deport them, and harasses foreign students at leading universities. The DHS has become synonymous with unsympathetic government overreach, malevolence and dysfunction.
For the patriotic, underpaid Americans working hard in the agencies of the DHS, what Trump has done to their reputations is a tragedy. The department, however, was doomed from the start. When such an agency was proposed before the Sept. 11 attacks, I was working in the White House, where I coordinated many “homeland” issues for almost a decade under President Bill Clinton and, later, President George W. Bush. Blocking the creation of the DHS was one of the few things on which Vice President Dick Cheney and I agreed. We thought that such a department would be too large, too diverse in function and too difficult to integrate into a well-functioning institution.
Congressional leaders, however, wanted to “do something” after 9/11, and it became impossible for the Bush administration to maintain its opposition to the idea of a homeland security agency. Instead, the Bush administration embraced it and quickly merged a raft of agencies ripped from their home departments. The new department never really came together.
For more than a decade, reports from the Government Accountability Office, think tanks and congressional committees have documented the failures of the DHS to coalesce into an effective entity. Its image steadily declined and was not helped by the popular television series “Homeland,” which despite its name depicted a dark world of CIA intrigue, portraying missions and functions that the DHS never actually had.. Contrary to popular belief, Homeland Security has never been the government’s lead counterterrorism entity. The FBI, part of the Justice Department, leads counterterrorism efforts within the United States.
The next administration would be well advised not to try to make the existing DHS structure work, for it will end up as another presidential administration that has failed in that task. Instead, the department should be reimagined — perhaps as part of a Reinventing Government effort, the first of which was led by then-Vice President Al Gore — with more manageable and mission-consistent entities. It should also shed its Orwellian name.
Federal departments and agencies develop personalities and images from their mission, and they attract people who identify with those personas. These identities are almost immutable, but new organizational designs and branding can reinvigorate and redirect agencies. Breaking up the DHS could have positive results.
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Read the rest of the article at the link.
You read it Courtside long ago: No mission, no leadership, no values, no discipline, no decency.DHS as currently constituted is a dysfunctional mess that America won’t miss.
Break it up, reassign the truly necessary functions, reduce the funding, and use the money saved by eliminating detention, grotesque mismanagement and maladministration, stupid walls, undisciplined and counterproductive, “civil” enforcement, and other demonstrably destructive functions for something more constructive. Yes, if you strip out the neo-Nazi wannabes, racists, and incompetents, there is some real talent there. Some of that talent passed through my courtroom in Arlington. Some of it is in the Asylum Office and at USCIS. There is some in the anti-smuggling and fraud detection programs. But, it’s totally wasted in the current corrupt dysfunctional configuration. Indeed, the totally toxic reputation of DHS under Trump actually hinders the useful functions.
This November, vote like your life depends on it! Because it does!
The Attorney General has issued a decision in Matter of REYES, 28 I&N Dec. 52 (A.G. 2020).
HEADNOTE:
(1) If all of the means of committing a crime, based on the elements of the statute of conviction, amount to one or more of the offenses listed in section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. §1101(a)(43), then an alien who has been convicted of that crime has necessarily been convicted of an aggravated felony for purposes of the INA.
(2) The respondent’s conviction for grand larceny in the second degree under New York Penal Law § 155.40(1) qualifies as a conviction for an aggravated felony for purposes of the INA. DHS charged that the respondent had been convicted of either aggravated-felony theft or aggravated-felony fraud, as defined in section 101(a)(43)(G) and (M)(i) of the INA, 8 U.S.C. § 1101(a)(43)(G) and (M)(i). Larceny by acquiring lost property constitutes aggravated-felony theft, and the parties do not dispute that the other means of violating the New York statute correspond to either aggravated-felony theft or aggravated-felony fraud.
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The DHS has the burden of proving removability. The DHS charges two distinct aggravated felonies. At trial and on appeal to the BIA, DHS can sustain neither charge. Therefore, according to Billy, to make the respondent removable, Immigration Judges should look for the generic elements of the respondent’s crime in any of the separate sections defining “aggravated felony” and combine them as necessary to create a new aggravated felony.
In other words, even if the respondent has not committed any listed “aggravated felony” under the so-called “categorical approach,” the judge must rewrite the statute as necessary to create new aggravated felonies that overcome the shortcomings and limitations of the actual statutory language used by Congress. The judge need not find that the respondent was convicted of any particular aggravated felony listed in the statute. It is enough that he or she committed the elements of some generic crime that would be some aggravated felony if we rewrote the definition as we think it should have been written to maximize deportations.
As my friends and colleagues Judge Jeffrey S. Chase (Jeffrey S. Chase Blog) and Dan Kowalski (LexisNexis Immigration Community) pointed out to me, this is not the first time that a GOP AG has decided to “diss” the Federal Courts by attempting to rewrite the “categorical approach” out of existence. AG Mukasey tried something similar with crimes involving moral turpitude during the Bush II Administration in Matter of Silva-Trevino, 24 I&N Dec. 24 I&N Dec. 608 (A.G. 2006). The Federal Courts didn’t agree, and Attorney General Eric Holder eventually vacated Mukasey’s lousy decision. http://www.immigrantdefenseproject.org/wp-content/uploads/2011/03/AG-Order-Vacating-Silva-Trevino-2015.pdf
All of us who believe in due process and equal justice should look forward to a day when a future Attorney General and/or Congress will vacate all of the misguided, biased, anti-immigrant “precedents” by Billy the Bigot, Gonzo Apocalypto, and Whitaker and thereby restore some semblance of fairness, normalcy, and predictability to the law. In the meantime, we’ll see whether Billy’s attempt to undo the “categorical approach” fares any better than Mukasey’s with the Federal Courts.
Litigate litigate, litigate! It’s important that the Federal Courts feel and see the pain caused by the DOJ’s biased rewriting of established principles of immigration law to create unnecessary controversies where there previously were none. Immigration law has never been short of legitimate controversies for litigation. But this regime’s unprecedented attempt to rewrite immigration law by fiat has upset those areas that previously were settled, thereby creating new waves of avoidable litigation and controversy where previously there was some agreement and efficiency. No wonder the Immigration Court backlog has mushroomed out of control. Sadly, the regime’s maliciously incompetent approach to the Immigration Courts resembles its maliciously incompetent approach to the COVID-19 pandemic. Basically a total disaster!
I also credit Jeffrey with the “Do It Yourself” observation. Or, as Dan pointed out, Billy’s approach could be called “Tinker Toy Analysis” or“Legoland Analysis.”
The Trump administration announced on Tuesday that it will continue to defy a federal court order compelling the full restoration of DACA, the Obama-era program that allows 700,000 immigrants to live and work in the United States legally. By doing so, the administration has chosen to flout a decision by the Supreme Court, effectively rejecting the judiciary’s authority to say what the law is.
Donald Trump first attempted to rescind the Deferred Action for Childhood Arrivals program in September 2017, a move that would’ve stripped its beneficiaries of work permits and subjected them to deportation. But his administration continually cut corners, failing to explain the basis for its decision and refusing to consider the impact of DACA repeal on immigrants, their communities, and their employers (including the U.S. Army). This June, the Supreme Court ruled that the administration’s actions were “arbitrary and capricious” under federal law and therefore “set aside” DACA repeal.
To implement that decision, U.S. District Judge Paul Grimm compelled the administration to restore DACA to its pre-repeal condition on July 17. Grimm’s order required the Department of Homeland Security to let DACA beneficiaries renew their status for two years, accept new applicants, and restore “advance parole,” which permits travel outside the country. But DHS did not do that. Instead, the agency maintained that it would reject new DACA applicants. It also declined to accept DACA renewals or reinstate advance parole.
At a hearing Friday, Grimm tore into Justice Department attorneys for flouting his order. The government’s actions, he explained, created “a feeling and a belief that the agency is disregarding binding decisions” from the Supreme Court. DOJ attorneys insisted that DACA applications were merely “on hold,” or “placed into a bucket,” while the administration decided how to proceed. But, as Grimm retorted, “it is a distinction without a difference to say that this application has not been denied, it has been received and it has been put in a bucket.” The judge once again directed DHS to comply with the law by accepting new applicants and processing renewals.
Incredibly, the agency has decided to disobey this order, as well. On Tuesday, acting DHS Secretary Chad Wolf declared that it would not accept new applications and would only grant one-year extensions to current beneficiaries “on a case by case basis.” This tactic will make it easier for Trump to deport DACA beneficiaries if he wins reelection, since their status will expire sooner. The agency will also deny advance parole “absent exceptional circumstances.” This new policy is nothing less than brazen defiance of a federal court ruling. Grimm, and the Supreme Court itself, ordered DACA’s full resuscitation, which requires the acceptance of new applicants and the conferral of two-year renewals. There is simply no legal basis for DHS’s zombie version of the program.
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Read the rest of the article at the link.
Equal justice for all and the easing of racial tensions in America will not happen until we get an Executive, Legislators, and Judges with the courage and integrity to make it happen. We’re a long way from that now.
The timid approach of the Legislative and Judicial Branches to Trump’s and his cronies’ almost daily abuses of our legal system have sent the message that the law is largely meaningless in the age of Trump, except if you are a person of color, asylum seeker, immigrant, or, perish the thought, all three, in which case the law only applies to you when the effects are adverse to your interests but not to protect you. On the other hand, if you are a Trump official or a DOJ lawyer, compliance with the law is at most a suggestion and ignoring it has few meaningful consequences.
The Trump regime has exposed the deep flaws and weaknesses in our democratic institutions. We need better public officials in all three branches of the Government. Better judges will take awhile because of life tenure. But, a better Executive, Legislature, and public servants can be achieved with a “big push” in November to expel the malicious incompetents at all levels. And, that will set the stage for eventually achieving a better Federal Judiciary that will stand up to tyranny and lawlessness and show that “nobody is above the law” is more than just a feckless catchphrase.
Due Process Forever! A Feckless Legislature & Federal Judiciary, Never!
