"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.
“The bitter irony is that as Trump proclaims his anti-Islamic State campaign, al-Qaeda is becoming stronger in both Iraq and Syria, warn analysts from the Institute for the Study of War. This is a fight where easy slogans and rushed travel bans aren’t likely to provide a path to victory.”
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Indeed, the fiasco that began in the Bush Administration has now put us in a position where we actually need Iran, “the Axis of Evil,” to battle ISIS.
PWS
02/10/17
From HuffPost:
“WASHINGTON, Feb 9 (Reuters) – President Donald Trump’s “wall” along the U.S.-Mexico border would be a series of fences and walls that would cost as much as $21.6 billion, and take more than three years to construct, based on a U.S. Department of Homeland Security internal report seen by Reuters on Thursday.
The report’s estimated price-tag is much higher than a $12-billion figure cited by Trump in his campaign and estimates as high as $15 billion from Republican House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell.
The report is expected to be presented to Department of Homeland Security (DHS) Secretary John Kelly in coming days, although the administration will not necessarily take actions it recommends.
The plan lays out what it would take to seal the border in three phases of construction of fences and walls covering just over 1,250 miles (2,000 km) by the end of 2020.”
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PWS
02/10/17
From the WSJ:
https://www.wsj.com/articles/trade-punishment-for-trump-voters-1486686758
“Global competition has forced U.S. farmers to become efficient and productive, but the reality is that other countries have arable land and willing labor. They can replace U.S. agriculture in a tariff war. Australia has a trade deal with Japan, and exports Down Under will have an advantage over American beef and wheat. U.S. beef imports to Japan will face high tariffs that the Trans-Pacific deal would have phased out or reduced. Mexico has bilateral trade deals with Chile, the European Union and others, and may buy more from Canada.
The bigger political picture for the Trump White House is that U.S. agriculture is already struggling amid a strong dollar and declining export volumes. Net farm income dropped 15% to about $68 billion last year, the lowest since 2009, according to the Agriculture Department. Unless Mr. Trump wants to compensate with more taxpayer subsidies, the best way to boost incomes is to let farmers sell in more markets, not fewer.
One reason the U.S. benefits from free-trade deals is that America has among the lowest import barriers on earth (5% average for agriculture), so new agreements tear down levies abroad and open new markets. President Trump should consider that reality before escalating on trade—and betraying the Farm Belt voters who are relying on him to bring growth and opportunity.”
WSJ Subscribers can read the full opinion piece at the link.
From the NYT:
https://www.nytimes.com/2017/02/09/us/california-farmers-backed-trump-but-now-fear-losing-field-workers.html?smprod=nytcore-iphone&smid=nytcore-iphone-share
“They are hopeful Mr. Trump will not make good on most of his threats. “Quien más habla, menos hace,” they tell each other — the more you talk, the less you do. There are too many of them, they reason, to throw them all out.
“We’re just waiting and praying, hoping that somebody can convince them that we are not hurting anyone by being here,” said Isabel Rios, 49, who has been picking grapes for the last two decades. Like most women in the fields, she covers her face with a bandanna to protect against the blaring sun, dust and pesticides. Her two children, 9 and 18, are American-born citizens and she worries what will happen to them if she is sent back to Mexico. “Who will benefit if we are not here?”
Mr. Marchini, the radicchio farmer, said he felt similarly after seeing generations of workers on his family farm send their children to college and join the middle class. Mr. Marchini’s family has farmed in the valley for four generations and he grew up working side by side with Mexican immigrants.
He said that no feasible increase in wages or change in conditions would be enough to draw native-born Americans back into the fields.
It was the other conservatives, Mr. Marchini said, who were out of touch about how to deal with foreign workers. “If you find a way to get in here,” he said, “there’s a need for what you do.”
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PWS
02/10/17
Read-the-9th-Circuit-s-opinion-on-the-travel-ban
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I think it will be hard for the Administration to prevail at this stage. I’d be surprised if either the full (“en banc”) 9th Circuit or the Supreme Court want to get involved at the TRO stage.
President Trump Tweets “See You In Court.” (Hasn’t that line been used before?) But, as indicated above, I’m not sure that the Supreme Court (particularly with only 8 Justices) will want to intervene at this point. The Supremes did take the Obama Immigration Executive Order case at a preliminary stage; but they were unable to resolve it on the merits, affirming the lower court’s injunction by an evenly divided Court. Not clear why the Court would be in a better position to resolve this one. But, we’ll find out shortly.
PWS
02/09/17
Greg Sargent writes in The Morning Plum in today’s Washington Post:
“Jeff Sessions has now been confirmed as attorney general, and this vaults him to a position in American life that is unique. Perhaps more than any other person, Sessions stands at the nexus of many of the potential plot lines that we should fear most about the Donald Trump presidency.
Here are the possibilities we need to worry about. President Trump’s refusal to divest from his business holdings creates the possibility of untold conflicts of interest and even full-blown corruption on an unprecedented scale. The hostility of Trump and Republicans to a full, independent probe into Russian meddling in the election may mean there will never be a full public accounting of what happened, which could make a repeat more likely.
Trump’s year of lies about voter fraud, and his campaign vows of explicit persecution of minorities, could signal further voter suppression efforts, weakened civil rights protections, and the use of state power against Muslims and undocumented immigrants in draconian or discriminatory ways. Trump’s well-documented authoritarian impulses could conceivably tip him into genuine authoritarian rule, in which, for instance, the power of the state is turned against critics or political opponents.
Sessions is now in a unique position to facilitate and enable — or, by contrast, to act as a legal check on — some or all of these possibilities, should they metastasize (or metastasize further) into serious threats to vulnerable minorities or, more broadly, to our democracy. Here are the things to fear:
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You can read the full article at the link. Although noting Session’s involvement with immigration, Sargent overlooks what is likely to be AG Session’s biggest legacy, for better or, as many expect, for worse. That is his unilateral control over the United States Immigration Courts, perhaps America’s largest and most important Federal Court System, with 530,000+ pending cases, and hundreds of thousands (if not millions) about to be pushed into the already clogged “pipeline” under President Trump’s Executive Orders on immigration enforcement. Unlike most administrative courts within the Executive Branch, the Immigration Court not only has authority to order what in many cases can be indefinite “civil detention” but also to impose permanent exile on individuals (and, as a de facto matter on their U.S. citizen families), including some who were legally admitted to the United States and have resided here many years with “green cards.” Even in the area of criminal law, few judges in any system possess comparable authority to permanently affect the lives of so many individuals, their families, and their communities.
PWS
02/09/17
http://time.com/4664957/trump-tweets-judiciary-judges-gorsuch/
Mark Sherman reports in Time:
“(WASHINGTON) — President Donald Trump’s unusually personal criticism of federal judges has drawn rebukes from many quarters, including from Supreme Court nominee Neil Gorsuch, but not from the judges themselves.
And that’s not likely to change, even if the tweeter in chief keeps up his attacks on judges. Bolstered by lifetime tenure, independent judges should not respond to criticism, no matter how harsh or that its source is the president, said a former judge, a law school dean and a constitutional law professor.
Judges “should basically give the tweets the attention they deserve, which means they should be ignored. This is basically a childish tantrum from someone who didn’t get his way. And the judiciary should go about its business and decide cases, including cases involving him,” said Vanderbilt University law professor Suzanna Sherry.
Trump’s style may be different and his language more coarse, but the comments themselves are not the “threat to judicial independence that some commentators have made them out to be,” said University of Pennsylvania law school dean Theodore Ruger.
Former U.S. District Judge Paul Cassell said judges would find themselves in unfamiliar territory “if they start critiquing the Twitter feed of the president.”
Chief Justice John Roberts has apparently embraced that advice. Roberts declined through a court spokeswoman to comment for this article.
Roberts himself was Trump’s first target during the presidential campaign. Last winter, Trump called the chief justice “an absolute disaster” and “disgraceful” mainly for the two opinions Roberts wrote that preserved President Barack Obama’s health care overhaul.
Next in Trump’s sights was U.S. District Judge Gonzalo Curiel, who was presiding over fraud lawsuits against Trump University. In June, Trump called Curiel “a hater of Donald Trump” who couldn’t be fair to him because Curiel is “of Mexican heritage” and Trump had proposed building a wall on the U.S.-Mexican border.
Last week, Trump pegged U.S. District Judge James Robart as a “so-called judge” after Robart imposed a temporary halt on Trump’s executive order barring people from seven predominantly Muslim countries from coming to the United States. On Sunday, Trump renewed his Twitter attacks against Robart: “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system. People pouring in. Bad!”
On Wednesday, he said the “courts seem to be so political,” in reference to the three federal appeals court judges who are considering the administration’s plea to enforce the order.
Later Wednesday, Gorsuch said he found the president’s attacks on the judiciary “disheartening” and “demoralizing.” The comments were made in a private meeting with Democratic Sen. Richard Blumenthal of Connecticut, although senators often provide an account of what was discussed in such meetings. Gorsuch’s confirmation team confirmed the essence of the remarks.
Trump is not the first president to object to court decisions or to opine about how a court should rule, said Paul Collins, a political science professor at the University of Massachusetts at Amherst. Obama used his 2010 State of the Union message to assail the Supreme Court’s Citizens United campaign finance ruling, with several justices in the audience. Obama also delivered a lengthy pitch for his health care law while the court was weighing the case in 2015.
With the exception of John F. Kennedy, every president since Dwight Eisenhower has been critical of some Supreme Court decisions, said Collins, drawing on research he did with co-author Matthew Eshbaugh-Soha of the University of North Texas.
But past presidents did not make their displeasure known by “attacking judges … or by questioning the decision such that there’s a possibility of undermining faith in the judicial system,” Collins said. “I get this uncomfortable sense that the president may be trying to lower confidence in judges in anticipation of defying a ruling.”
Ruger said Roberts, as the head of the judicial branch of government, or another justice might feel compelled to speak up about the importance of an independent judiciary if the attacks continue.But Cassell, a law professor at the University of Utah who was a judge from 2002 to 2007, said Trump has the right to voice his disagreement. “We live in an age now where, for better or for worse, the language we use is getting rougher in a variety of contexts,” he said.”
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It also helps to have a job with life tenure.
PWS
02/09/17
Theresa Vargas and Steve Hendrix write in today’s Washington Post:
“Monroy is now working toward a master’s degree in international education. She is also the director of education at the Family Place, a service organization that offers literacy classes for adult immigrants, many of whom have no more than a third-grade education. She credits DACA with giving her that freedom to thrive and help others.
“A lot of fear I had before was taken away,” she said.
She hopes Trump will continue to honor the policy, but said if he revokes it, she is less worried about herself than others. Every day she sees women who come from places where gangs have taken their homes and tried to recruit their children. Women who fear not just instability, but losing loved ones, if they are forced to leave the United States. It is why in recent weeks she has attended protests at the White House and in front of the Trump hotel, adding her slight frame to the swelling crowds.
“I’ve told my friends if I have to go down with a fight, it will be a glamorous fight,” she said.”
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Read the full front-page story at the link.
PWS
02/09/17
“A sharply divided Senate confirmed President Trump’s nominee for attorney general Wednesday, capping an ugly partisan fight and revealing how deep the discord has grown between Republicans and Democrats at the dawn of Trump’s presidency.
The day after an unusually tense conflict on the Senate floor, the chamber voted 52 to 47 on Wednesday evening to clear Sen. Jeff Sessions (R-Ala.), whose record on civil and voting rights as a federal prosecutor and state attorney general has long been criticized. Sessions won confirmation almost exclusively along party lines. Sen. Joe Manchin III (W.Va.) was the only Democrat who supported him, and no Republican voted against him. Sessions voted present.
In remarks after his confirmation, Sessions mentioned the “heated debate” surrounding him and said he hoped “the intensity of the last few weeks” would give way to better relations in the Senate.”
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PWS
02/08/17
Aaron Blake writes in the Washington Post:
“In a speech to law enforcement officials, Feb. 8, President Trump read federal law giving broad him broad authority to set immigration restrictions, adding, “a bad high school student would understand this.” (The Washington Post)
The 9th Circuit Court of Appeals is now weighing what to do with President Trump’s travel ban. And Trump did his best Wednesday to put his finger on the scales of justice.
Continuing a highly unusual days-long effort by a president, Trump issued a stark warning to the three-judge panel and, really, the entire court system: Run afoul of me, and you may just pay a price.
In a speech in front of law enforcement in Washington, Trump suggested to the three-judge panel that they would marginalize themselves politically if they decide the wrong way. Trump has said similar things about the judge who previously halted his travel ban — albeit after the decision had come down.
The comments were oblique, but Trump’s point was crystal clear.
“If these judges wanted to help the court in terms of respect for the court, they’d do what they should be doing,” Trump said, in a comment thick with subtext. “It’s so sad.”
He added: “I don’t ever want to call a court biased, so I won’t call it biased. But courts seem to be so political, and it would be so great for our justice system if they would read [the law] and do what’s right.”
If that isn’t a threat to marshal support against the American court system and fight it politically, I’m not sure what is. Trump is basically saying: That’s a nice reputation you’ve got there. It’d be a shame if something happened to it.”
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So, if this is the contemptuous and disrespectful way Trump treats the Article III Courts, what does that say about the chances for fairness and due process in the U.S. Immigration Court System, where all the U.S. Immigration Judges and the Appellate Immigration Judges on the Board of Immigration Appeals work directly for Trump’s friend and enthusiastic supporter, Attorney General Jeff Sessions, a well-established “immigration hard liner” who is reputed to be the “inspiration” behind Trump’s immigration enforcement program.
How long will an Immigration Judge who rules in favor of an individual who is one of Trump’s “removal priorities” or an Appellate Immigration Judge who speaks out in favor of due process in the face of Trump’s “move ’em all out” Executive Orders remain on the bench. Not long, I suspect. Is Attorney General Jeff Sessions really going to stand up for and protect a conscientious Immigration Judge who in good faith attempts to follow the law even when it conflicts with Trump’s edicts? Not likely.
The only question probably will be whether Article III Judges will stand up to Trump’s bullying and excesses and force Constitutional due process back into the system after Trump and Sessions drain it out. So far, the Article III Judiciary seems to be almost as unfazed by Trump’s bulling and threats as, say, the cast of SNL. But, it’s early in the game. And even Article III Judges eventually might find that they have to pick their fights. Will the due process rights of foreign nationals be one of them? Only time will tell. Stay tuned.
PWS
02/08/17
https://www.wsj.com/articles/donald-trumps-immigration-action-in-courts-hands-1486491207
DEVLIN BARRETT, BRENT KENDALL and ARUNA VISWANATHA report in today’s WSJ:
“An appeals court pressed a Justice Department lawyer Tuesday on whether President Donald Trump’s executive order on immigration is discriminatory, while also pushing an attorney for the two states fighting the order to explain how it could be unconstitutional to bar entry of people from terror-prone countries, the Justice Department lawyer arguing on behalf of the administration, urged the appeals court to remove a lower-court injunction on the order, arguing that the court shouldn’t second-guess the president’s judgment when it came to a question of national security.
The executive order, Mr. Flentje told a three-judge panel of the San Francisco-based Ninth U.S. Circuit Court of Appeals, struck a balance between security concerns and the practice of allowing people to enter the country.
“The president struck that balance, and the district court’s order has upset that balance,” he said. “This is a traditional national security judgment that is assigned to the political branches and the president and the court’s order immediately altered that.’’
The oral arguments on whether to reinstate some, all, or none of President Donald Trump’s executive order on immigration represented a crucial test in the fast-moving legal battle over White House efforts to restrict entry into the U.S. The Jan. 27 order suspended U.S. entry for visitors from seven predominantly Muslim countries for at least 90 days, froze the entire U.S. refugee program for four months and indefinitely banned refugees from Syria. The administration argues the action was needed to keep terrorists from domestic soil.
The president weighed in on Twitter on Wednesday morning: “If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!”
The legal clash, which is also playing out in other courts around the country, represents a remarkable test of the powers of a new president determined to act quickly and aggressively to follow up on his campaign promises. Mr. Trump, who promised repeatedly on the campaign trail to tighten what he called lax immigration policies, issued his executive order a week after taking office, generating widespread protests as well as plaudits and setting off an immediate debate over the extent of executive branch authority.”
. . . .
The court isn’t making a final determination on the legality of Mr. Trump’s order for now. Instead, it must decide what immigration rules will be in effect during the coming months while court proceedings on the substance of the president’s restrictions continue.”
Read the WSJ’s bios of the three U.S. Court of Appeals Judges on the panel: Judge William C. Canby Jr., Judge Richard Clifton, Judge Michelle Friedland:
https://www.wsj.com/articles/three-federal-judges-will-decide-on-donald-trump-travel-ban-1486488393
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This one still seems “too close to call.” There are substantial arguments on both sides. Courts generally do not like to interfere with the authority of the President in the fields of immigration, national security and foreign policy. On the other hand, appellate courts are usually very reluctant to interfere with trial court proceedings at the very preliminary TRO stage. While this might eventually end up in the Supreme Court, as most commentators assume, I’m skeptical it will go there any time soon, given the Supreme’s current short-handed configuration.
PWS
02/08/17
Andrew Jacobs writes in the NYT:
“DJIBOUTI — The 10:24 a.m. train out of Djibouti’s capital drew some of the biggest names in the Horn of Africa last month. Serenaded by a chorus of tribal singers, the crush of African leaders, European diplomats and pop icons climbed the stairs of the newly built train station and merrily jostled their way into the pristine, air-conditioned carriages making their inaugural run.
“It is indeed a historic moment, a pride for our nations and peoples,” said Hailemariam Desalegn, the prime minister of Ethiopia, shortly before the train — the first electric, transnational railway in Africa — headed toward Addis Ababa, the Ethiopian capital. “This line will change the social and economic landscape of our two countries.”
But perhaps the biggest star of the day was China, which designed the system, supplied the trains and imported hundreds of engineers for the six years it took to plan and build the 466-mile line. And the $4 billion cost? Chinese banks provided nearly all the financing.
. . . .
Mr. Hadi praised the Chinese for going all in after Western banks declined to help finance the nation’s glaring infrastructure needs.
“We approached the U.S., and they didn’t have the vision,” he said. “They are not thinking ahead 30 years. They only have a vision of Africa from the past, as a continent of war and famine. The Chinese have vision.”
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PWS
02/07/17
http://www.huffingtonpost.com/entry/snl-women-trump-administration_us_5899c922e4b040613138f6f9
Maxwell Strachan writes in HuffPost:
“So, President Donald Trump is supposedly upset that a woman played his White House press secretary on “Saturday Night Live” last weekend.
Politico is reporting that seeing Sean Spicer depicted by a thunderous Melissa McCarthy bothered the president so much, particularly because he “doesn’t like his people to look weak.” Spicer himself said that he thought McCarthy “could dial back” the impression. The impression clearly bothered them both.
As a result, people have been excitedly starting to call for more women to play the men in Trump’s administration, hoping to further injure the president’s always sensitive ego, and maybe cause some behind-the-scenes drama.
Rosie O’Donnell, a longtime critic of the president, has already said she would be willing to play Trump adviser Steve Bannon if called upon by Lorne Michaels. To which we say: Why stop there? It’s time for “SNL” to throw the entire administration into a gigantic hissy fit by having women play them all.
To help out the people over at “SNL,” we decided to do a bit of the casting work for them, just so they can think about it. Look, “SNL” can do what it wants. But if what it wants is to create an existential crisis at the White House, it should do this.”
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Check out the full story (with pictures) at the link to see who Strachan would cast as whom. Talk about going viral on Sunday morning!
PWS
02/07/17
Elliott, an Adjunct Professor of Law at Yale Law writes:
“Moderates could do a lot worse than Judge Neil Gorsuch—and we probably will if he isn’t confirmed. Donald Trump is clearly determined to nominate a judicial conservative to the Supreme Court. Elections have consequences, as Barack Obama once chided congressional Republicans.
Judge Gorsuch’s judicial philosophy isn’t mine. He believes that the Constitution’s meaning is fixed, that whatever the words signified in the era of the Founders is what they still express today. My view, which aligns more closely with that of Justices Stephen Breyer and Elena Kagan, is that judges must respect the Constitution’s text and history but may also interpret them to fit the changing times.
But among judicial conservatives, Judge Gorsuch is as good as it possibly gets. I have known him personally for more than a decade, since he was an attorney in the Justice Department. He is a brilliant mind, but more important he is a kind, sensitive and caring human being. Judge Gorsuch tries very hard to get the law right. He is not an ideologue, not the kind to always rule in favor of businesses or against the government. Instead, he follows the law as best as he can wherever it might lead.
Judge Gorsuch has demonstrated in his rulings that he believes the judiciary has a sworn duty to protect individual liberties, even when they lack broad public support. Today Judge Gorsuch rules that Hobby Lobby cannot be forced to offer employees certain contraceptive coverage that violates its owners’ religious beliefs. (That ruling was upheld by the Supreme Court.) But tomorrow it could mean standing up for an unpopular minority group that liberals like better.”
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PWS
02/07/17
“AS THE Trump administration fought in court to revive its temporary ban on entry by refugees as well as travelers from seven majority-Muslim countries, the president persisted in perversely suggesting that the judicial branch will be responsible for any terrorist attack carried out by what he portrayed as the violent hordes clamoring to enter the country.
By conflating a dangerous fiction about immigrants with blatant disrespect for an equal branch of government, President Trump fans the xenophobic flames he did so much to ignite during the presidential campaign. “Just cannot believe a judge would put our country in such peril,” he tweeted over the weekend, after a ruling by U.S. District Judge James L. Robart in Seattle, who was nominated to the court by President George W. Bush. “If something happens blame him and court system. People pouring in. Bad!”
. . . .
Even if the courts uphold its actions, it is critical that the administration not use the inevitable imperfections of any vetting process as a pretext to ban refugees for more than the 120-day period covered by the Jan. 27 order. Already, Mr. Trump has slashed the current fiscal-year target for refugee admissions to 50,000, from 110,000.
That’s a trickle when measured against the United States’ traditional role as a beacon to those fleeing violence and tyranny, and against global demand. The United Nations counts some 16 million refugees (excluding Palestinians); more than half are children . By far the largest number, nearly 5 million , are Syrians, who are barred indefinitely under Mr. Trump’s order.
“These are not Jeffersonian democrats,” sneered Mr. Bannon, referring to Muslim immigrants who entered Europe. In 2015, he asked, “Why even let ’em in?”
Similar remarks were made a century ago about immigrants from Ireland, Italy, Germany and Eastern Europe, then widely seen as unschooled, unwashed and, often, violent. No one would ask now, “Why did we even let ’em in?”
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“Not Jeffersonian democrats,” Mr. Bannon? Says who? How would you know? Where have you dealt face to face with refugees?
In my “last previous incarnation,” I dealt with refugees from a wide variety of countries on a daily basis. Most of them were folks just like you or me. The just wanted a chance to live (rather than die, be imprisoned, beaten, or otherwise tortured), work, raise their families in safety and security, and contribute to our nation. Pretty much what all of us want, in my experience.
They also had a very keen appreciation of and deep respect for what American democracy and free political and intellectual participation meant — a much clearer understanding than I have ever heard from President Trump or Steve Bannon. Someone who has been imprisoned in squalid conditions, burned with cigarette butts, beaten on the bottoms of the feet, made to walk on their knees over hot sand, or seen family members abused has a much more practical, down to earth understanding of the privilege of living in the United States than most of us who had the good fortune (not merit, but pure good fortune) to be born here.
I wake up every morning thankful that I woke up and that I’m not a refugee (particularly in the Trump/Bannon world).
PWS
02/07/17