"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.
Donald J. Trump Famous American Clown (Officially titled “Ass Clown”) Artist: Scott Scheidly Orlando, FL Reproduced by permissionD. Vader Minister of Justice Banana Republic of TrumpTrump Regime
Donald Trump’s re-election campaign poses the greatest threat to American democracy since World War II.
Mr. Trump’s ruinous tenure already has gravely damaged the United States at home and around the world. He has abused the power of his office and denied the legitimacy of his political opponents, shattering the norms that have bound the nation together for generations. He has subsumed the public interest to the profitability of his business and political interests. He has shown a breathtaking disregard for the lives and liberties of Americans. He is a man unworthy of the office he holds.
HERNANDEZ-CARTAGENA v. BARR, 4th Cir., 10-15-20, published
PANEL: THACKER, RICHARDSON, and QUATTLEBUAM, Circuit Judges
OPINION BY: JUDGE STEPHANIE THACKER
KEY QUOTE:
Contrary to the BIA’s conclusion in this case, the record does not support the conclusion that Petitioner’s own conflict with the gang precipitated any of the events in question. Indeed, substantial evidence in the record compels the conclusion that at least one central reason Petitioner was targeted was her membership in the Hernandez-Cartagena family. The unrebutted evidence in the record demonstrates that the threats and violence against Petitioner, her child, and her siblings were designed to get her parents to pay up. Pursuant to Hernandez-Avalos, it is therefore unreasonable to conclude that the fact that Petitioner is her parents’ child — a member of their family, concern for whom might motivate additional payments to the gang — is not at least one central reason for her persecution.
11
IV.
For the reasons set forth herein, the petition for review is granted, the decision of
the BIA is reversed, and we remand to the BIA for proceedings consistent with this opinion.
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Why this is important: It delivers a totally deserved “double whammy” to two of the worst and most biased precedents issued during the Trump White Nationalist “kangaroo court era” at the BIA.
First, in Matter of L-E-A, 27 I&N Dec. 40 (BIA 2017), (“L-E-A- 1”) the BIA recognized the “nuclear family” as a “particular social group.” Yet, to produce the necessary asylum denial sought by their “Trump handlers” at DOJ, the BIA erroneously found that the threatened harm had no “nexus” to the PSG.
To reach this improper and illogical result, the BIA disingenuously trashed the “normal” rules of causation. Those say that nexus is established if the harm would not have occurred “but for” membership in the protected group. Of course, there could be multiple “but fors” in a particular case, recognizing the “at least one central reason” statutory language for nexus.
That respondent was targeted for harm by gangs because his family owned a drug store that the gangs wanted to access to distribute illegal drugs. Had the respondent not been a member of his particular family, there is no reason to believe he would have have been targeted for any harm, or indeed have been of any interest to the gangs at all.
In other words, “but for” his membership in that particular family PSG, the threats would not have occurred. Essentially, a “no brainer” asylum grant that could have been quickly granted by a competent adjudicator. Any DHS appeal should have been a strong candidate for summary dismissal.
Instead of doing the obvious, the BIA invented new rules of causation. Contrary to the record, they found that family membership was essentially irrelevant to the threatened persecution. No, according to the BIA, the threats against the respondent were motivated solely the gang’s desire to sell illegal drugs through the family store, not a protected ground.
By searching for “any other motivation” and then basically substituting it to the exclusion of the clear family PSG motivation, the BIA bizarrely and erroneously concluded that the PSG was not “one central reason” for the persecution. This allowed the BIA to deny asylum to a respondent who fit squarely within the “refugee” definition.
Although the decision might have been cloaked in garbled legalese and irrational, result-oriented analysis, the overall message to Immigration Judges and BIA Appellate Judges was clear: faced with facts that demanded an asylum grant to a Central American refugee, the adjudicator should manufacture “any reason other than a protected ground” to deny protection. The BIA will have your back.
Let’s play out the BIA’s intentionally perverted analysis on a larger scale. The leaders of the Nazi movement stood to profit mightily from the eradication of the German Jewish community. Stolen artwork, confiscated wealth and property, and even the proceeds of the gold and silver obtained from collecting and melting down the dental fillings of gassed Jews found their way into Nazi bank accounts, many abroad. Thus, the BIA could view the Holocaust not as religious, nationality, or racial persecution, but rather part of an overall criminal scheme to enrich Nazi leaders by stealing from prosperous or vulnerable individuals. No persecution there!
Happily, in Hernandez-Cartagena, Judge Thacker and her colleagues blew through the type of bogus analysis set forth in L-E-A- 1. Although not specifically citing the BIA’s defective precedent, the court applied “normal rules of causation” rather than the BIA’s “any reason to deny” approach.
The petitioner was a “conduit” In the gang’s scheme to extort money from her parents. The court recognized that “it is therefore unreasonable to conclude that the fact that Petitioner is her parents’ child — a member of their family, concern for whom might motivate additional payments to the gang — is not at least one central reason for her persecution.”
Good bye and good riddance L-E-A- 1. Hello, rational analysis and well-merited protection, although sadly only within Fourth Circuit, for now.
But, that’s not the end of the tale of woe from America’s most blatantly biased, unprofessional, deadly, and totally unconstitutional “21st Century Star Chambers.” Not satisfied with the BIA’s illegal denial of protection in L-E-A- 1, two years later, Attorney General “Billy the Bigot” Barr “certified” that case to himself. That became Matter of L-E-A-, 27 I&N Dec. 581 (A.G. 2019) (“L-E-A- 2”).
“Justice” Star Chamber Style
His purpose? To reverse the only correct part of L-E-A- 1: the BIA’s recognition of the “nuclear family” as a “PSG.” As we all know, the nuclear family is one of the oldest, most well-established, well-defined, and universally recognized social units in human history. Not surprisingly, then, it has been recognized as a “PSG” under the Refugee Act of 1980 in numerous judicial and BIA decisions as well as by a myriad of human rights and international law scholars.
Bill Barr Consigliere Artist: Pat Bagley Salt Lake Tribune Reproduced under license
No matter to Billy! In an exercise in disingenuous legal gobbledygook and counter-rationality, he tried to explain why it was wrong to recognize the obvious: that the nuclear family” is a “cognizable PSG” for asylum adjudication purposes.
Instead, Billy substituted what I call the “Kardashian rule.” Only those families who have some sort of widespread recognition in society as a whole should be considered to possess the “social distinction” (the characteristic formerly known as “social visibility”) to qualify as a “cognizable PSG.”
Billy Barr’s Vision Of A “Cognizable Particular Social Group” By hotrock pictures – Vimeo: Kardashian Kollection at Sears (view archived source), CC BY 3.0, https://commons.wikimedia.org/w/index.php?curid=82871460 Creative Commons License
Again, without specifically citing L-E-A- 2, (perhaps the OIL was too embarrassed to argue it) Judge Thacker and her colleagues “blew away” its bigoted and irrational nonsense:
We have repeatedly held “a nuclear family provides a prototypical example of a particular social group” cognizable in our asylum framework. Cedillos-Cedillos v. Barr, 962 F.3d 817, 824 (4th Cir. 2020) (internal quotation marks omitted).
Indeed, the Fourth Circuit has been a leader in recognizing the nuclear family as a PSG, going all the way back to a case where they reinstated some of my rulings as an Immigration Judge that had been wrongfully reversed by the BIA: Crespin-Valadares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011). But, hey, who remembers stuff like that from nearly a decade ago where I was once again proved right and the BIA was wrong?
Yeah, I’ll have to admit that after eight years of regularly getting “stuffed” by my BIA colleagues at en banc, there were few things in my professional life more satisfying than having a Court of Appeals “stuff” the BIA on a case where I had dissented as a BIA Judge or been reversed as an Immigration Judge!
So Billy the Bigot’s attempt to impose the absurdist “Kardashian rule” (sorry Kim, Kourtney, and Khloe) in L-E-A- 2 bites the dust, at least in the Fourth Circuit. I hope it will serve as a “blueprint” to eradicate the “twin travesties” of L-E-A- 1 & 2across the nation!
Exhilarating as this case is, it’s just one step in the right direction. The unconstitutional White Nativist bias and abuse being heaped upon refugees and other migrants by a “Star Chamber” beholden to the likes of “Billy the Bigot” Barr and his predecessor Jeff “Gonzo Apocalypto” Sessions won’t end until EOIR is abolished and replaced with a real court system that complies with 5th Amendment Due Process. If the Article III Courts don’t have the guts to get the job done, then its up to future better Congress to make it happen!
🌟First and foremost, Aaron Caruso, Esquire, of Abod & Caruso, Wheaton, MD. He appeared before me in Arlington. He’s the “total pro,” a “judge’s lawyer:” scholarly, unfailingly courteous, prompt, well-prepared, practical, wrote outstanding “to the issue” briefs that didn’t waste my time, took tough cases, and never gave up on his clients. In a “better world,” he’s definitely someone I could see on the Federal Bench at some level. A member of the NDPA, for sure!
Honorable Stephanie D. Thacker U.S. Circuit Judge Fourth Circuit Photo From Ballotpedia
🌟Judge Stephanie Thacker of the Fourth Circuit. I haven’t studied all of her judicial opinions. But, based on this opinion and her outstanding and totally correct dissent in Portillo-Flores v. Barr where she cogently castigated her fellow panel members for “going along to get along” with the BIA’s “at worst nonsensical and cursory at best” asylum denial, she appears one of a painfully small number of Article III Judges who both understand the mockery of justice going on in our Immigration “Courts” and have the guts to take a strong stand against it. https://immigrationcourtside.com/2020/09/04/%E2%80%8D%EF%B8%8F%EF%B8%8F%EF%B8%8Finjustice-watch-4th-cir-judge-stephanie-thacker-cogently-castigates-colleagues-for-misapplying/
Interestingly, this is the same panelas in Portillo-Flores. And, the BIA’s sloppy and incompetent analysis, including ignoring the evidence of record, presents largely the same issues. Only, this time Judge Thacker’s colleagues paid attention to what she was saying!
That says something about both her persuasiveness and her colleagues’ willingness to listen and take a better approach to judicial review. That’s also what’s known in the business as “making progress every day, one case, one life at a time.”
Unfortunately, Trump and the GOP right wing pols have turned Federal judicial selection into a race to control justice until at least 2060. That has forced the Dems to finally wake up and do likewise the next time they get the chance. The upshot: At 55, although still in the “prime years” of her career from a professional standpoint, Judge Thacker has probably “aged out” of the sweepstakes to be the “heart and soul” of the Supremes for the next four decades.
The good news: She should be around to continue saving lives, speaking truth to power, and serving as a great role model for younger, aspiring jurists and public officials of all races and genders for many years to come.
Compare Judge Thacker’s clear, concise, cogent analysis in this case with the wandering legal gobbledygook and pure nonsense put forth by the BIA and Barr in L-E-A- 1 & 2.
🌟Judge Julius N. Richardson and Judge A. Marvin Quattlebaum, Jr., of the Fourth Circuit also deserve stars. I really lambasted these two Trump appointees for their tone-deaf performance in Portillo-Flores. But, here they surprised me by joining fully in Judge Thacker’s analysis. Shows a capacity for teamwork, listening, adjusting views, and taking judicial review seriously, all really good things!
Additionally, it’s really important and significant when Trump appointees “do the right thing” and uphold due process, fundamental fairness, and recognize asylum seekers as “persons” entitled to equal justice under our Constitution.Given the large number of fairly young Trump appointees on the Federal Bench, it’s critical that as many of them as possible join their colleagues in resisting the White Nationalist assault on the rights and human dignity of people of color, particularly migrants and asylum seekers, being orchestrated by Trump, Miller, Barr, Wolf, and the rest of the regime’s gang of bigots.
Don’t know if this will be repeated in the future, but the votes of Judge Richardson and Judge Quattlebaum in this case are an encouraging sign for the American justice system. Will it be a trend or an aberration? Can’t tell, but stay tuned.
🌟Finally, and perhaps most importantly, hats off for Sandra Marleny Hernandez-Cartagena. In the face of a bogus “court” system controlled and operated by White Nationalist racist bigots for the purpose of wiping out asylum laws, demoralizing applicants through dishonest procedures and rules meant to discourage them from seeking protection, and to “send a message” that they aren’t wanted in our country, she persisted for herself, her family, and others similarly situated. Her victory in this case is a victory for American justice and for every one of us who believe in due process, fundamental fairness, and equal justice for all.
Thanks, Sandra, for inspiring us with your courage and unrelenting persistence in the face of evil and institutionalized, illegal, bias!
Supreme Court Nominee by Bob Englehart, PoliticalCartoons.com Published under licenseEric Levitz Associate Editor Intelligencer New York Magazine Photo source: Twitter
Even Republicans don’t have the stomach to outsource judgment on all modern constitutional questions to the slaveholding elite of a preindustrial, post-colonial backwater. As Dean of Berkeley Law Erwin Chemerinsky has observed, a ruthless adherence to text and history would require forfeiting judicial protection of “liberties such as the right to marry, the right to procreate, the right to custody of one’s children, the right to keep the family together, the right of parents to control the upbringing of their children, the right to purchase and use contraceptives, the right to abortion, [and] the right to refuse medical care,” none of which are guaranteed by the Constitution.
Amy Coney Barrett herself has acknowledged the undesirability of applying originalism indiscriminately, noting in 2016, “Adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education,” and other institutions that “no serious person would propose to undo,” even if they lack constitutional grounding. Barrett’s proposed solution to this conundrum is for courts to simply avoid ruling on cases where originalism would dictate socially unthinkable overturnings of precedent; she wrote in 2017 that “discretionary jurisdiction generally permits [the Court] to choose which questions it wants to answer.”
But this expedient degrades originalism’s claim to neutrality. If an originalist Supreme Court can apply its doctrine opportunistically — taking only those cases in which its “neutral” juridical method will yield outcomes acceptable to a “serious” person (as they define that adjective) — then originalism isn’t much of a binding restriction on judicial discretion.
What’s more, Barrett’s concession tacitly betrays awareness of a critical fact that originalists love to elide when speaking for a lay audience: Amending the Constitution has become so phenomenally difficult it’s not at all clear that the American people could promptly replace an overturned Brown v. Board of Education with an amendment forbidding school segregation, despite overwhelming popular support for that Supreme Court decision. Originalists like to portray their judicial approach as highly democratic, since they purport to defer to the letter of a democratically enacted Constitution. But once one stipulates that the demos is manifestly no longer capable of passing constitutional amendments with regularity, it becomes clear that the originalist practice of striking down democratically elected laws in deference to the letter of a centuries-old document is profoundly anti-democratic.
Of course, in real life, “originalist” Supreme Court justices haven’t just applied their method opportunistically by selecting cases in which originalism will produce a favored outcome; they’ve also simply declined to abide by their method when they feel like it. On Monday, Barrett named Antonin Scalia as her guiding light on judicial philosophy. But as Georgia State University Law professor Eric J. Segall notes, Scalia voted “for broad rules limiting congressional power to enact campaign finance reform, to commandeer state legislatures and executives to help implement federal law, and to allow lawsuits against the states for money damages by citizens of other states” without “justifying these broad rules from a textual or historical perspective,” presumably because they have no textual or historical basis.
In sum: Amy Coney Barrett’s originalism does not work as a method of safeguarding democracy against an activist, ideologically motivated judiciary. It does, however, function quite well as a means of obscuring a far-right movement’s efforts to impose its unpopular agenda by judicial fiat.
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Read Eric’s complete article, which is an outstanding debunking of“originalism” — a totally bogus invention of the reactionary right — intended to pervert the law and promote far-right attacks on humanity — at the link.
Just think about it: Supposedly a bunch of guys who risked everything on a never-before-realized long shot of defeating the British King and setting up a republic actuallyintended that 230 years after the fact the governors of that republic would be so backwards, unimaginative, and intellectually limited that they would still be attempting to divine the “true meaning” of various two-centuries out of date words and concepts that nobody agreed upon in the first place! Preposterous! Not to mention totally intellectually dishonest!
Obviously, if the GOP Senators actually believed that Coney Barrett would be an unbiased judge with an open mind to progressive, liberal, humane, common sense interpretations of law and committed to implementing the Constitutional guarantee of equal protection and due process under the law for all persons, they would be apoplectic. They would be outraged at Trump for foisting such an unreliable and unpredictable jurist on them!
I’m not necessarily saying that Coney Barrett couldn’t educate herself and “get smarter” on the bench — abandoning her false dogma and actually showing some empathy, courage, independence, and commitment to equal justice for all. She wouldn’t be the first GOP-appointed Judge or Justice to move left on the bench. After all, spending a lifetime mired on the wrong side of history screwing up the lives of your fellow humans can get old, even for well-trained right-wing ideologues.
Also, she will have the benefit of the only current Justice who actually appears up to the job and consistently understands the proper role of a High Court in a democratic republic — Justice Sonia Sotomayor. Sotomayor actually “gets it right” in an amazing number of cases and usually explains her reasoning in coherent, non-legalistic terms that most folks can understand.
But, sadly, I find relatively little in Coney Barrett’s career to predict that type of self-awareness, intellectual honesty, moral courage, and capacity for human growth. Her family situation shows some capacity for empathy and human understanding.
But, sadly, to date, she evidently has been unable to “connect the dots” between her kids’ lives and futures and the future of humanity. To understand that but for the grace of God, the refugee she is expelling based on BS non-defects could be someone she actually loves or regards as human. That the benefits that neo-Nazi Stephen Miller is unethically and illegally stripping from deserving immigrants could be the lifeline that, but for life’s quirks, would allow her, her family, or other loved ones to survive and achieve their full human potential. The capacity to function as a real jurist certainly is there, but the will and perspective seem to be largely lacking.
In a way, Coney Barrett’s squandered potential to achieve good is her own human tragedy. But, one for which those “other than Coney Barrett” are likely to pay the ultimate price.
Elizabeth Gibson Attorney, NY Legal Assistance Group Publisher of “The Gibson Report”
COVID-19
Note: Policies are rapidly changing, so please verify information on the relevant government websites and with colleagues on listservs as best you can.
EOIR Status Overview & EOIR Court Status Map/List: Hearings in non-detained cases at courts without an announced date are postponed through, and including, October 30, 2020. [Note: Despite the standing order about practices upon reopening, an opening date has not been announced for NYC non-detained at this time.]
Buzzfeed: Immigration and Customs Enforcement officials have started to implement a policy that allows officers to arrest and rapidly deport undocumented immigrants who have been in the US for less than two years, according to internal emails and documents obtained by BuzzFeed News.
Reuters: Detention centers now house fewer than half as many people as before the pandemic – less than 20,000 as of early October – in part because emergency health measures established in March have allowed authorities to expel nearly 150,000 migrants at the border. At the same time, the ICE data show, the average amount of time immigrants spent in U.S. detention almost tripled to three months this September compared to September 2016, before President Donald Trump took office. Detainees in September 2020 were being held nearly double the amount of time as in September 2019.
LA Times: Under the ruling, at least four immigration detention centers with the capacity to house about 5,000 people would be phased out over the coming years.
SF Chron: The U.S. Justice Department has suspended all diversity and inclusion training and events for its employees, according to a memo obtained by The Chronicle, which would include judges in San Francisco and elsewhere hearing cases of immigrants seeking to avoid deportation.
DocumentedNY: A prosecuting attorney for ICE losing a detainee´s file, immigrants spending more time in jail because the video teleconferencing system malfunctioned, a judge deporting children because they failed to show up to court. The following are some of the negligences we saw after we spent three months in the immigration courts.
Buzzfeed: The arrests were the latest effort by ICE to target the state and its policies that reduce the cooperation between local police and federal agents when it comes to immigration enforcement.
LatinoUSA: In 2018, a young Guatemalan man named Reynaldo Castro Tum was ordered deported even though no one in the U.S. government knew where he was, or how to find him. Now, more than two years later, his unusual journey through the United States’ immigration system has sucked another man back into a legal quagmire he thought that he’d escaped. This episode follows both of their stories and the fateful moment they collided.
EOIR: The EOIR Payment Portal is available to pay BIA Filing Fees associated with the form EOIR-26 and related BIA Motions. Filing fees for the Form EOIR-29 and related motions should continue to be paid in accordance with Department of Homeland Security (DHS) instructions. Payments for immigration court fees must follow current processes (See 8 C.F.R. 1103.7).
EOIR announced the investiture of 20 new immigration judges, including three assistant chief immigration judges. Per the notice, EOIR’s immigration judge corps has increased nearly 70 percent since January 2017. Notice includes the judges’ biographical information and courts of appointment. AILA Doc. No. 20101200
ImmProf: Oral argument in the case is scheduled for this Wednesday morning, October 14, 2020 at 11:00 a.m. Eastern. The argument may be listened to live. In Pereida, the Supreme Court will decide whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.
SCOTUSblog: The case asks whether a grant of Temporary Protected Status authorizes eligible noncitizens to obtain lawful-permanent-resident status if those noncitizens originally entered the United States without being “inspected and admitted” – a term of art referring to lawful entry and authorization by an immigration officer.
USCIS is updating policy guidance in the Policy Manual confirming that a grant of TPS is not admission for INA §245(a) adjustment purposes; clarifying that the applicability of decisions in the sixth and ninth circuits is limited to those jurisdictions; and incorporating Matter of Z-R-Z-C. AILA Doc. No. 20100635
A district court granted the plaintiffs’ motion for a preliminary injunction and stayed the effective date of the USCIS Final Rule (except for those fees set by statute) pending resolution of the matter or further order of the court. (NWIRP et al., v. USCIS, et al., 10/8/20) AILA Doc. No. 20100909
A federal district court in Washington State declared unlawful a 2018 policy requiring state courts to have jurisdiction to order reunification, if warranted, before making the relevant Special Immigrant Juvenile (SIJ) findings. (Moreno Galvez, et al. v. Cuccinelli, et al., 10/5/20) AILA Doc. No. 20100842
The BIA ruled that if a criminal conviction was charged as a ground of removability when cancellation of removal was granted, that conviction cannot serve as the sole factual predicate for a charge of removability in subsequent removal proceedings. Matter of Voss, 28 I&N Dec. 107 (BIA 2020) AILA Doc. No. 20100840
The court held that the petitioner’s withholding of removal claim failed, because it found that “wealthy immigrants returning to the country of Jamaica” did not form a cognizable particular social group. (Lee v. Barr, 9/22/20) AILA Doc. No. 20100535
The court upheld the BIA’s denial of asylum, finding that terror attacks in Kenya by Al-Shabaab constituted generalized violence, and rejecting the petitioner’s proposed social group of westernized and Americanized Christian Kenyans who oppose Al-Shabaab. (Zhakira v. Barr, 10/2/20) AILA Doc. No. 20100901
Where petitioner, who had been convicted of an aggravated felony, argued that the BIA erred in upholding the IJ’s denial of his motion for a continuance, the court dismissed the petition, finding he had failed to state a constitutional claim or question of law. (Mirambeaux v. Barr, 10/2/20) AILA Doc. No. 20100903
Where BIA had dismissed petitioner’s appeal on the ground that his removal would not cause his daughters “exceptional and extremely unusual hardship,” the court rejected his two due process challenges, finding that neither was a constitutional claim. (Hernandez-Morales v. Att’y Gen., 9/2/20) AILA Doc. No. 20100902
The court upheld the BIA’s denial of asylum to the Chinese petitioner, finding that the evidence did not compel a reasonable factfinder to conclude that the petitioner had been persecuted for his political opinion rather than for personal reasons. (Du v. Barr, 9/14/20) AILA Doc. No. 20100540
The court upheld the BIA’s denial of the petitioner’s motion to reopen, finding that the petitioner had not substantially complied with the requirements in Matter of Lozada for reopening removal proceedings based on alleged ineffective assistance of counsel. (Avitso v. Barr, 9/22/20) AILA Doc. No. 20100537
The court denied the government’s motion for a stay of the district court’s order precluding DHS from placing minors detained under a Title 42 public health order in hotels for more than three days in the process of expelling them from the United States. (Flores v. Barr, et al., 10/4/20) AILA Doc. No. 20100906
Upholding the denial of asylum to the petitioner, who had been abused by her ex-boyfriend, the court held that substantial evidence supported the conclusion that the Guatemalan government could have protected the petitioner had she reported her abuse. (Velasquez-Gaspar v. Barr, 9/30/20) AILA Doc. No. 20100904
The court held that the termination of petitioner’s grant of asylum by reopening his asylum-only proceedings was not error, and that the IJ did not have jurisdiction to consider his request for adjustment of status because of the limited scope of such proceedings. (Bare v. Barr, 9/16/20) AILA Doc. No. 20100630
The court held that Oregon Revised Statute §475.992(1)(a) is divisible as between its “manufacture” and “delivery” terms, and that the petitioner’s conviction under that statute for manufacturing marijuana was thus an aggravated felony. (Dominguez v. Barr, 7/21/20, amended 9/18/20) AILA Doc. No. 20081036
Deferring to the BIA’s decision in Matter of Wu, the court held that a conviction under California Penal Code §245(a)(1), which proscribes certain aggravated forms of assault, is categorically a crime involving moral turpitude (CIMT). (Safaryan v. Barr, 9/17/20) AILA Doc. No. 20100631
The en banc court overruled Minto v. Sessions, holding thatthe petitioner, who was present in the Commonwealth of theNorthern Mariana Islands (CNMI) when the INA became applicable there, was not removable under INA §212(a)(7)(a)(i). (Torres v. Barr, 9/24/20) AILA Doc. No. 20100538
DOS announced that due to the injunction in NAM v. DHS, any J-1, H-1B, H-2B, or L-1 applicant who is either sponsored (as an exchange visitor) by, petitioned by, or whose petitioner is a member of, one of the plaintiffs in the suit is no longer subject to PP 10052’s entry restrictions. AILA Doc. No. 20100536
RESOURCES
National Bail Fund Network2nd round of bailouts across the country, as part of an action on 10/21 called Fall Freedom Day 2020.Referrals by sending us an email at constanza.nbfn@gmail.com and including the following information: Name and link to your practice or organization, Detention center where person is detained, and their bond amount.
Only the “tip of the iceberg” in a thoroughly corrupt and totally dysfunctional system that nobody seems willing to put out of its misery and the injustices that it causes humanity and the rule of law each day that it continues to grind out gross miscarriages of justice!
Dahlia: I wonder what you thought of Barrett’s statement, about how she reads each of her opinions through the eyes of the losing party. As you have written, the losing party tends to be the prisoners, the Black worker, the teen seeking abortion, the asylum seeker. It reminded me of Justice Samuel Alito testifying at his hearings about his great solicitude for immigrants.
Mark: Barrett’s opening statement made me think about one of her worst decisions (so far), in which she approved the deportation of an asylum seeker because there were small, trivial variations in his account of persecution. Over a dissent, Barrett said, yep, this asylum seeker must be sent home to be tortured and murdered because tiny details in his story changed over time. Would a judge who views the case through the eyes of the asylum seeker really dismiss his claims so cavalierly? I doubt it.
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Read the complete dialogue at the link.
So much for intellectual honesty! It also shows Barrett’s fundamental lack of experience and legal understanding of what Immigration “Courts” really are and how they have been politicized and weaponized against asylum seekers by “judges” who report to overtly biased and xenophobic politicos in the Executive Branch. Just how would this “naked farce” satisfy any rudimentary concept of Due Process? Clearly it doesn’t. And just as clearly, intentionally tone-deaf judges like Barrett don’t care!They lack the guts, relevant experience representing migrants, and the intellectual presence to stand up for the Constitutional and human rights of “the other.”
How would YOU like to be sentenced to torture and/or death based on trivial inconsistencies found by an Immigration “Judge” working directly for the Attorney General and his regime in a badly flawed assembly line process designed to achieve political policy objectives, not justice?
Also, did anyone else pick up the facial absurdity of Barrett’s disingenuous claim to be “apolitical” while pledging allegiance to GOP “superhero” the late Justice Antonin Scalia, probably the most overtly “political Justice” of modern times?
Bottom Line:Once you’re out of the womb, this is one mother you don’t want on your case!🏴☠️☠️⚰️
Better Judges For A Better America! Judge/Justice Barrett is part of the problem, not the solution! The best way to insure that she is among the last, far-right, anti-democracy, inhumane judges given life tenure on the Supremes or anywhere else, vote ‘em out, vote ‘em out! Then, we’ll discover the “true meaning” of Barrett’s “I’m not there to make policy nonsense!” (Indeed, I would submit that the sole reason for her appointment was the GOP’s belief and expectation that she will reliably elevate disingenuous right-wing policies, biases, and prejudices over the Constitutional, individual, and human rights of individuals and that she will be a steadfast opponent of Constitutionally-required equal justice under law.)
Justice for the George Floyds, Breonna Taylors, dehumanized dead asylum seekers, and wrongfully imprisoned migrant kids of the world (e.g., the end of unconstitutional “Baby Jails”) will require a different type of “Justice” than Amy Coney Barrett in the future! Far from being truly “independent” and “apolitical,” Barrett is likely to be the perfect representative of the warped man who appointed her and his anti-democracy party. And, that’s likely to cause problems for all Americans of good will far into the future!
“This appeal presents the question of whether the emergency military construction authority provided by 10 U.S.C. § 2808 (“Section 2808”) authorized eleven border wall construction projects on the southern border of the United States. We conclude that it did not. We also consider whether the district court properly granted the Organizational Plaintiffs a permanent injunction and whether the district court improperly denied the State Plaintiffs’ request for a separate permanent injunction. We affirm the decision of the district court on both counts. … We hold that the States and Sierra Club both have Article III standing and a cause of action to challenge the Federal Defendants’ border wall construction projects, that Section 2808 did not authorize the challenged construction, and that the district court did not abuse its discretion in either granting a permanent injunction to Sierra Club or in denying a separate permanent injunction to the States.”
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PANEL:THOMAS, Chief Judge, and WARDLAW and COLLINS, Circuit Judges
Opinion by Chief Judge Sidney R. Thomas; Dissent by Judge Collins
The only real question here is whether the Supremes will bail out the regime’s scofflaws once again.
Last month, a nurse at a federal immigration detention center in Irwin, Georgia, filed a whistleblower complaint detailing the abhorrent treatment of people detained there. She charged that women in detention were subjected to hysterectomies and invasive gynecological exams without their knowledge or consent, and often without assistance from interpreters.
The complaint is heartbreaking, but far from surprising. These atrocities are consistent with practices employed at U.S. detention centers for decades, and they are sadly consistent with our tragic history of forced sterilization of minority women. The implications of the complaint are perfectly clear: we must end the civil detention of immigrants, so fraught with systemic racism that undervalues the lives of Black, Indigenous and other people of color. There is no other option.
With over 200 detention centers, the United States has the largest immigration detention system in the world. Immigration and Customs Enforcement (ICE) has over the past two years detained an average of 40,000 daily, an astonishing number that surpasses the population of Wisconsin cities like Brookfield and Wausau. Yet the detention of immigrants is just a microcosm of the inhumanity that characterizes our immigration system today. Many immigrants come to the U.S. to seek refuge and a better life for themselves and for their families. But when they arrive in this country, they are forced into conditions that violate human rights principles under both international and domestic standards, and that, frankly, violate our moral obligations to each other as human beings.
ICE has the authority to release most people from detention through monetary bonds or parole, and ICE policy requires that people seeking asylum are released from detention when they can establish their identity and demonstrate they are neither a danger nor a or flight risk. Instead of using these tools, though, ICE almost always chooses detention, ostensibly to deter others from coming into the country. But far from showing detention to be an effective deterrent, statistics reveal the opposite: harsher penalties have not reduced the numbers of undocumented migrants crossing U.S. borders. What the data does show is how immigrant detention has become a big business, with taxpayer dollars helping to subsidize a billion-dollar private prison industry that profits from human trauma.
Often located in remote places, immigrant detention facilities are ripe for the abuse of detained migrants. There is no community oversight and little — often no — access to legal representation. People in detention will only have an attorney if they can afford one or are lucky enough to find pro bono representation.
. . . .
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Read the rest of Erin’s article at the link! Erin reinforces points that I make often here on Courtside: the real objectives of unnecessary and highly cost-ineffective “civil detention” are to deprive migrants of access to counsel, coerce them into abandoning potentially successful claims, punish them for exercising legal rights, and deter others from asserting legal rights.
All of these are clear violations of Constitutional due process and equal protection! The conditions under which these non-criminals are held to “punish” them for their audacity to assert their legal rights also violate the Eighth Amendment, as some lower Federal Court Judges have found.
Unfortunately, too many Article III Judges have abdicated their oaths to uphold the Constitutional rights of the most vulnerable persons among us in the face of improper political pressure and a regime overtly out to undo American democracy and institute a far-right reactionary, white nationalist kakistocracy.
And, here’s info on a great “virtual event” that Erin helped organize to raise awareness of the existence and devastating effects of “Baby Jails” in the U.S. Allowing such cruel and inhuman abominations to flourish in our nation is beyond disgraceful! (See also the recent book Baby Jails: The Fight to End the Incarceration of Refugee Children in America, by my good friend and Georgetown Law colleague Professor Phil Schrag).
The Flores Exhibit: Stories of Children Held in Immigrant Detention Facilities
WHEN
Wednesday, October 14, 2020
7:30 pm to 8:30 pm
WHERE
Virtual
EVENT DESCRIPTION
Artists, lawyers, advocates and immigrants read the sworn testimonies of young people under the age of 18, who were held in two detention facilities near the U.S./Mexico border in June 2019. Followed by a discussion with panelists.
Organized by the Immigrant Justice Clinic, Latinx Law Student Association, and American Constitution Society at UW Law School.
Zoom link will be sent to via email to those who register.
I proudly note that my good friend Judge (Ret.) Jeffrey S. Chase and other distinguished members of our Round Table of Former Immigration Judges are “readers” in “The Flores Exhibit.”
I am also inspired by all that Erin has accomplished and the lives she and her students have saved through the Immigrant Justice Clinic at my alma mater, UW Law!
Erin and others like her are exactly the type of progressive, practical, scholar-problem solvers that we need as Federal Judges and in key Government policy-making positions. We need to replace the reactionary kakistocracy with a progressive, equal justice oriented, practical, problem-solving humanitarian meritocracy.
“Equal Justice For All” isn’t just a “throwaway slogan.” It’s a vision of a better, more efficient, more effective, more tolerant, more inclusive, more diverse, more representative Government that will work with people of good faith everywhere to maximize opportunities for all and promote a brighter future for everyone in America! It’s in our power to make it happen,and the necessary change starts this Fall.
Mica Rosenberg National Immigration Reporter, Reuters
In our most recent story on ICE detention and the coronavirus, we looked at ICE data going back to 2010 and found immigrants are being held now for longer on average than at any time in a decade in the middle of a pandemic, which has now infected more than 6,400 detainees nationwide. We spoke to 20 detainees from Africa and Latin America who have been detained for more than six months. Some were asylum seekers held for long periods as they seek relief in immigration court, others were DACA recipients who have served criminal sentences but are still fighting their deportation orders.
Detainees are locked up for much longer, even as the overall detention population dropped dramatically this year. Part of the reason for that decline: around 150,000 expulsions at the US-Mexico border under new health rules put in place by the Trump administration in March.
This follows on our earlier reporting about how ICE transfers of detainees have exacerbated the spread of the virus in some cases and how detainees have died of COVID-19. As well as how the families of detainees are being affected because of their frontlinework.
Thanks again to everyone who has helped me report these stories and please do keep in touch with future tips. Beyond detention, we are also following the swift pace of immigration policy changes across the board.
All the best,
Mica
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Thanks Mica and crew for continuing to expose these outrageous violations our Constitution, our international obligations, morality, common sense, and our obligations to our fellow humans by the Trump regime’s white nationalist kakistocracy!
Vote ‘em out, vote ‘em out, on every level! Return our nation to the rule of law, common sense, competency, and simple human decency.
Tal Kopan Washington Reporter, SF ChronicleHonorable Mimi Tsankov U.S. Immigration Judge Eastern Region Vice President National Association of Immigration Judges (“NAIJ”)
Justice Department cancels diversity training, including for immigration judges
WASHINGTON — The U.S. Justice Department has suspended all diversity and inclusion training and events for its employees, according to a memo obtained by The Chronicle, which would include judges in San Francisco and elsewhere hearing cases of immigrants seeking to avoid deportation.
The memo, dated Oct. 8, is in response to an executive order issued by President Trump last month that labeled racial bias training as “offensive and anti-American race and sex stereotyping and scapegoating.” It was issued by Lee Lofthus, the assistant attorney general for administration.
“To ensure compliance with requirements specific to Diversity and Inclusion (D&I) training for employees, DOJ Components are instructed to suspend all D&I related training, programs, activities, and events that employees are required or permitted to attend while on Government-paid time,” Lofthus wrote.
Any new diversity training must be approved by the federal Office of Personnel Management, Lofthus said. He offered no timeline for resuming training.
The suspension applies to all divisions of the Justice Department, but could be of particular importance to the immigration courts.
Unlike the independent federal judiciary, immigration judges who hear the cases of asylum seekers and others trying to stay in the U.S. are employees of the Justice Department, hired by the attorney general.
Those cases often include some of the most sensitive stories of trauma from around the world, including many from women who say they have been raped, trafficked or abused in countries that frequently do not punish men who commit such acts. Asylum seekers also include people who say they have been persecuted because of their religious beliefs and LGBTQ individuals from countries where such identities are criminalized.
The Justice Department did not immediately respond to a request for comment.
Rep. Zoe Lofgren, D-San Jose, who chairs the House Judiciary subcommittee on immigration, said the Justice Department, like other workplaces, “should always aim for more diversity, not less.”
“The suspension of this training will also apply to our nation‘s immigration courts and could lead to less inclusive and fair-minded judges,” Lofgren said in a statement to The Chronicle. “This is yet another reason why the immigration court system should be an independent body, separate from DOJ and free from the political whims of the Executive branch.”
The union that represents immigration judges noted that they interact with a diverse group of people in court, which it said makes such training important.
“The National Association of Immigration Judges values diversity and inclusion in the workplace as it ensures that the Immigration Judges can meet the needs of the diverse group of stakeholders with whom we interface.” Mimi Tsankov, the chair of the group’s committee on gender equity and a judge in New York, said in a statement. “Immigration Court workplace training on diversity and inclusion reflects a commitment to its importance and ensures a judicial bench ready to respond to the needs that our cases demand.”
President Trump’s attorneys general have paid particular attention to the immigration courts as part of their efforts to restrict immigration to the United States, by implementing policies that have reduced judges’ discretion and made it harder for immigrants to claim asylum.
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Those with access should go to the above link for the full article. It also gives Tal a boost from the “hits.”
Glaring, intentional lack of diversity on the bench along with racial, gender, religious, and ethnic insensitivity have become an endemic problem at EOIR. But, given a regime and a DOJ that pride themselves on racism, misogyny, xenophobia, along with disdain for professionalism, expertise, ethics, humanity, and the Constitution, that’s not surprising.
Representative Lofgren and the NAIJ’s Judge Tsankov are absolutely correct. It’s time to put an end to the disgraceful abomination at EOIR and create a real, independent court system dedicated to due process, fundamental fairness, and promoting human dignity!
Due Process Forever! Today’s Dysfunctional & Unfair EOIR, Never!
WASHINGTON — The five U.S. attorneys along the border with Mexico, including three appointed by President Trump, recoiled in May 2018 against an order to prosecute all undocumented immigrants even if it meant separating children from their parents. They told top Justice Department officials they were “deeply concerned” about the children’s welfare.
But the attorney general at the time, Jeff Sessions, made it clear what Mr. Trump wanted on a conference call later that afternoon, according to a two-year inquiry by the Justice Department’s inspector general into Mr. Trump’s “zero tolerance” family separation policy.
“We need to take away children,” Mr. Sessions told the prosecutors, according to participants’ notes. One added in shorthand: “If care about kids, don’t bring them in. Won’t give amnesty to people with kids.”
Rod J. Rosenstein, then the deputy attorney general, went even further in a second call about a week later, telling the five prosecutors that it did not matter how young the children were. He said that government lawyers should not have refused to prosecute two cases simply because the children were barely more than infants.
“Those two cases should not have been declined,” John Bash, the departing U.S. attorney in western Texas, wrote to his staff immediately after the call. Mr. Bash had declined the cases, but Mr. Rosenstein “instructed that, per the A.G.’s policy, we should NOT be categorically declining immigration prosecutions of adults in family units because of the age of a child.”
The Justice Department’s top officials were “a driving force” behind the policy that spurred the separation of thousands of families, many of them fleeing violence in Central America and seeking asylum in the United States, before Mr. Trump abandoned it amid global outrage, according to a draft report of the results of the investigation by Michael E. Horowitz, the department’s inspector general.
The separation of migrant children from their parents, sometimes for months, was at the heart of the Trump administration’s assault on immigration. But the fierce backlash when the administration struggled to reunite the children turned it into one of the biggest policy debacles of the president’s term.
Though Mr. Sessions sought to distance himself from the policy, allowing Mr. Trump and Homeland Security Department officials to largely be blamed, he and other top law enforcement officials understood that “zero tolerance” meant that migrant families would be separated and wanted that to happen because they believed it would deter future illegal immigration, Mr. Horowitz wrote.
The draft report, citing more than 45 interviews with key officials, emails and other documents, provides the most complete look at the discussions inside the Justice Department as the family separation policy was developed, pushed and ultimately carried out with little concern for children.
This article is based on a review of the 86-page draft report and interviews with three government officials who read it in recent months and described its conclusions and many of the details in it. The officials, who spoke on the condition of anonymity because they had not been authorized to discuss it publicly, cautioned that the final report could change.
Before publishing the findings of its investigations, the inspector general’s office typically provides draft copies to Justice Department leaders and others mentioned in the reports to ensure that they are accurate.
Mr. Horowitz had been preparing to release his report since late summer, according to a person familiar with the investigation, though the process allowing for responses from current and former department officials whose conduct is under scrutiny is likely to delay its release until after the presidential election.
Mr. Sessions refused to be interviewed, the report noted. Mr. Rosenstein, who is now a lawyer in private practice, defended himself in his interview with investigators in response to questioning about his role, according to two of the officials. Mr. Rosenstein’s former office submitted a 64-page response to the report.
“If any United States attorney ever charged a defendant they did not personally believe warranted prosecution, they violated their oath of office,” Mr. Rosenstein said in a statement. “I never ordered anyone to prosecute a case.”
The Government did not seriously question the correctness of this finding!
Intentionally violating Constitutional rights (not to mention lying and attempting to cover it up) is clearly a violation of 18 USC 242.
Here’s the text of that section from the DOJ’s own website:
TITLE 18, U.S.C., SECTION 242
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
Sure looks like an”open and shut” case for prosecution.
The irony: Families and their kids have been traumatized for life, perhaps even killed or disabled by the actions of these criminal conspirators; however, the “perps” remain at large.
Hamilton is on the public dole continuing to wreak-havoc on the Constitution, the rule of law, the Immigration Courts, and human decency at the corrupt Barr DOJ; Rosenstein works for a “fat cat” law firm hauling down a six figure salary while he avoids justice and accountability for his misdeeds; “Gonzo” had the absolute audacity to try to reinsert himself onto the public dole by running for the Senate from Alabama (thankfully, unsuccessfully, even though he previously held the seat for years and misused it as a public forum to spread his racist ideas, xenophobic venom, lies, false narratives, and unrelenting cruelty).
Where’s the “justice” in a system that punishes victims while letting “perps” prosper and go free?
A federal judge in Maryland has granted an undocumented Indonesian immigrant temporary reprieve from deportation, ruling Friday evening that immigration authorities cannot remove him from the country until he has a chance to pursue religious asylum.
Binsar Siahaan, a 52-year-old father to two U.S. citizens, attracted considerable support from faith-based activists nationwide after he was arrested by U.S. Immigration and Customs Enforcement last month at his home on the grounds of Glenmont United Methodist Church in Silver Spring, Md. He and his wife, also an undocumented Indonesian immigrant, work there as church caretakers.
Siahaan’s attorneys, Elsy Ramos Velasquez and Patrick Taurel, had argued the arrest was made under false pretenses, without a warrant and in violation of ICE’s policy that typically prohibits agents from making arrests on church property. They also argued that Siahaan, who is Christian, should not be deported to majority-Muslim Indonesia until he has a chance to fully pursue religious asylum.
On Friday, U.S. District Judge Paul Grimm agreed, granting Siahaan a preliminary injunction that blocks ICE from removing him from the country until the Board of Immigration Appeals, or a higher federal court, makes a ruling on his pending appeal. Siahaan is being held at a detention center in Georgia, where he was transferred from Baltimore to await deportation. Grimm also ordered ICE to bring him back to Baltimore, where he will remain in custody closer to his family.
“When the ruling came down, we were really relieved,” said the Rev. Kara Scroggins, pastor at Glenmont United Methodist. “We’re glad that he’s closer to home at the detention facility in Baltimore, but we’re going to keep fighting until he’s home with his family.”
ICE could not immediately be reached for comment Saturday but previously said Siahaan was arrested “after he received full due process in the nation’s immigration courts.”
. . . .
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Read the full article at the link.
Hats off to the litigation team and to U.S. District Judge Paul Grimm! By ordering ICE to return Siahaan to Maryland, rather than detaining him in Georgia, generally known as one of the worst places in the “New American Gulag,” Judge Grimm took the kind of effective action necessary to stop the abusive actions of ICE and to guarantee real due process!
In a functioning system with an independent U.S. Immigration Court comprised of Judges with expertise in asylum and human rights laws and a commitment to due process and the rule of law, Immigration Judges could take the actions necessary to protect fundamental rights and hold ICE accountable without constant resort to the U.S. District Courts. A “captive” Immigration Court, where Immigration Judges are subservient to Billy the Bigot Barr and pressured to act as “ICE enforcement in robes” ill-serves the national interest! It’s also highly inefficient and wasteful of public resources!
Thanks to my good friend Deb Sanders for bringing this incident to my attention!
“The Trump administration proposed its annual refugee admissions ceiling just before midnight on Wednesday, September 30, committing to resettle just 15,000 individuals in Fiscal Year 2021, which would be the lowest admissions ceiling since the inception of the U.S. Refugee Admissions Program (USRAP).
The announcement comes on the heels of what was previously the lowest level of refugee admissions in American history. For FY 2020, which ended on September 30, the administration had set a goal to welcome just 18,000 refugees, in stark contrast to the average admissions ceiling of approximately 95,000 since the beginning of the USRAP. Despite this historically low target, the administration barely attained 65% of allotted admissions – resettling only 11,814 refugees this fiscal year, according to Lutheran Immigration and Refugee Service.
“In just four years, this Administration has cut the refugee resettlement program from 110,000 to a historic low of fifteen thousand. At a time of unprecedented global need, today’s decision to further cut the refugee admissions ceiling is a complete abdication of our humanitarian and moral duty.” said Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, a resettlement agency that has welcomed hundreds of thousands of refugees since 1939. “Let this serve as a wake-up call to those who believe this administration supports avenues of legal immigration. Refugees go through extreme vetting and have done everything our government has asked of them, yet they continue to be met with open hostility and egregious processing delays from this administration”
The record-low admissions figures have also disproportionately impacted certain groups. Admissions of Muslim refugees have declined to just 2,503, down from approximately 38,900 in FY 2016 and approximately 4,900 in FY 2019. Additionally, the Trump administration set aside 4,000 slots for Iraqi allies who assisted U.S. interests in their home country. However, it fell drastically short, resettling only 123 individuals in this category, or just 3% of the admissions goal.
“It shows the tragic extent to which we have abandoned our Iraqi allies who risked their lives, and those of their family members, to assist U.S. government and military personnel,” noted Vignarajah. “This further undermines our diplomatic and military efforts, rendering it nearly impossible to garner support from regional allies moving forward.”
Given FY2020’s record-low admissions numbers and an FY2021 proposed admissions ceiling of only 15,000, refugee advocates are deeply concerned by the human toll on the most vulnerable.
“In real terms, this means that families who have already waited years are forced to postpone reunification. It means that thousands who would otherwise find safety on our shores are left to languish in refugee camps, with no end in sight,” concluded Vignarajah. “This heartless decision is diametrically opposed to our values as a welcoming nation and it dishonors our common humanity at a time of dire need.”
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Here’s then”Trump Regression” — From international leader, to outlier, to outlaw state!🏴☠️
This Fall, vote for a return to humanity and the rule of law!
Donald J. Trump Famous American Clown (Officially titled “Ass Clown”) Artist: Scott Scheidly Orlando, FL Reproduced by permission“Weird Al” Yankovic Musician, Songwriter, Entertainer Photo:Chris Favero from USA Creative Commons Attribution-Share Alike 2.0 Generic license.
This is no longer the case. Public confidence and public perception that the courts are non-partisan has eroded. The Republican boycott of Garland, together with Trump’s unprecedented nomination of Barrett and her likely confirmation, will seal the Republican theft of two supreme court seats, at least in the eyes of more than half the electorate, and will ensure conservative control of the court for decades to come.
If Barrett’s record is any indication, the court will soon turn its back on its most treasured precedents and turn America into a more regressive country. Before joining the bench just three years ago, she served as a law clerk to Scalia, whose judicial philosophy she has fully embraced. She has also been a longtime member of the rightwing Federalist Society.
Public confidence and public perception that the courts are non-partisan has eroded
Her short judicial record, together with her scholarly writings, reveal that she is a rock-solid conservative jurist. Like Scalia, she defines herself as an originalist and textualist, which means that the constitution must be viewed as of the time it was written. From that perspective, there is nothing in the constitution that would explicitly support abortion rights, gay marriage, mandatory school desegregation, or the right to suppress evidence that is illegally seized. By contrast, in one of her most famous opinions, United States v Virginia (1996), Ginsburg wrote that “a prime part of the history of our constitution … is the story of the extension of constitutional rights and protections to people once ignored or excluded.”
In a 2013 article, Barrett repeatedly expressed the view that the supreme court had created, through judicial fiat, a framework of abortion on demand that ignited a national controversy. In an opinion she joined with another judge, she expressed doubt that a law preventing parents from terminating a pregnancy because they did not want a child of a particular sex or one with a disability could be unconstitutional. These writings surely indicate that Barrett will do whatever she can to limit or eliminate abortion rights.
Barrett has also expressed dissatisfaction with the Affordable Care Act and support for a broad interpretation of the second amendment. She has writtenthat Chief Justice John Roberts “pushed the Affordable Care Act beyond its plausible meaning”. She also quoted Scalia,when he wrote that “the statute known as Obamacare should be renamed ‘Scotuscare’” in “honor of the court’s willingness to ‘rewrite’ the statute in order to keep it afloat”. There is little doubt that Barrett would be inclined to find the Affordable Care Act unconstitutional and thereby deprive millions of Americans of affordable healthcare coverage. Similarly, she wrote a dissenting opinion questioning the constitutionality of a statute that prohibited ex-felons from purchasing guns. Thus, she has demonstrated her fealty to the NRA position that the more guns the better – inevitably leading to more Americans dying from gun violence.
When addressing the legal doctrine known as stare decisis, meaning respect for precedent, Barrett wrote that she “tend[ed] to agree with those who say that a justice’s duty is to the constitution and that it is thus more legitimate for her to enforce her best understanding of the constitution rather than a precedent she thinks is clearly in conflict with it”. In other words, she would overturn landmark decisions such as Brown v Board of Education or Roe v Wade if those decisions did not reflect her best understanding of the constitution.
Amy Coney Barrett: what will she mean for women’s rights?
Read more
Stunningly, in an interview in 2016, when asked whether Congress should confirm Obama’s nominee during an election year, Barrett responded that confirmation should wait until after the election because an immediate replacement would “dramatically flip the balance of power”. Given that answer, she should decline the nomination, as her confirmation would even more dramatically flip the balance of the court, entrenching a 6-3 conservative majority.
Confirming this nominee before the outcome of the national elections – which will determine both the identity of the next president and the composition of a new Senate – is unprecedented, inexcusable and a threat to many rights that the majority of Americans have embraced. This is a tragedy about to happen.
Shira A Scheindlin served as a United States district judge for the southern district of New York for 22 years. She is the co-chair of the board of the Lawyers Committee for Civil Rights Under Law and a board member of the American Constitution Society
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Read the rest of Judge Scheindlin’s article at the link.
As I have been saying “Better Judges For A Better America!” It starts with electing a President who will nominate them and a Senate that will confirm them. That requires “regime change” and defeat of the GOP Anti-Democracy Party at all levels.
Dems need to stop sputtering about Barrett, whom they don’t appear able to stop anyway, and get out the vote to insure that she will be the last GOP far right shill on Supremes for many years!Rebuilding and improving American democracy starts NOW, with THIS ELECTION. As Willie Nelson says: “Vote ‘Em Out, Vote ‘Em Out!”
BTW, “Moscow Mitch” and his GOP toadies have plenty of time to race through the Barrett confirmation during an election, but no time to help Americans thrown out of work or losing their health insurance because of the pandemic!🤮⚰️
Days before they were to go into effect, a federal court in the Northern District of California issued a national injunction blocking a dramatic fee hike for appliations for naturalized citizenship, permanent residency, asylum, and access to other immigration benefits. The new fees would have made immigration benefits unattainable for many. It would have nearly doubled citizenship from $640 to $1,170; increased lawful permanent residency and related application fees from $1,125 to $2,270; and added a $50 fee for asylum applications (the first time a fee has been assessed for asylum applications). The rule would have also eliminated most fee waivers for immigrants who cannot afford to pay the fees.
Judge Jeffrey White ruled that the nonprofit organizations that had challenged the fee increases would be likely to prevail in showing that Wolf’s appointment as Acting Director of the U.S. Department of Homeland Security, without Senate confirmation, violated the rules of succession. As a result, the fees ordered under his stewardship cannot take effect while the litigation progresses. Similar reasoning had been used in a separate lawsuit regarding Ken Cucinelli and his asylum directives.
MHC
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MHC = Professor Ming Hsu Chen one of the all-star ⭐️ team of bloggers at ImmigrationProf Blog. Thanks, Professor, for this timely item! These illegal and clearly punitive fee increases were scheduled to into effect at the beginning of October!
Ming Hsu Chen Associate Professor of Law Colorado Law Courtesy Appointment in Political Science Ethnic Studies Faculty Affiliate Faculty-Director, Immigration and Citizenship Law Program Photo: ImmmigrationProf/ Col. Law
This is also a great illustration of why, totally contrary to the nonsense GOP party line and folks like GOP-owned Justices Thomas and Gorsuch, the nationwide injunction is an essential tool for achieving justice. According to the GOP’s false dogma, plaintiffs, many pro se, or appearing with pro bono or “low bono” representation, should be required to win their cases before over 650 U.S. District Judges and in 12 Circuits to get effective relief from the Trump regime’s unrelenting war on our Constitution and the rule of law.
While Trump and his GOP toadies and sycophants spout BS platitudes about “law and order” the truth is simple: This is a party of arrogant, immoral “scofflaws” from top to bottom!
This Fall, vote like your life and our future as a nation depend on it! Because they do! Vote the GOP kakistocracy out at every level! Don’t let their dark & dishonest plans become YOUR future!☠️⚰️
