Travel Ban 2.0 – Page 11 – immigrationcourtside.com

Split 1st Cir. Bops BIA For Failing To Consider Reg Requiring That Resettlement Be “Reasonable” — Garcia-Cruz v. Sessions

http://media.ca1.uscourts.gov/pdf.opinions/15-2272P-01A.pdf

“8 C.F.R. § 1208.13(b)(3), however, lists a number of factors that an adjudicator should consider. “[W]hile the IJ and BIA do not necessarily have to address each of [8 C.F.R. § 208.13(b)(3)’s] reasonableness factors explicitly . . . the agency must explain why the factors that cut against the asylum applicant outweigh the factors in his favor.” Khattak v. Holder, 704 F.3d 197, 207 (1st Cir. 2013); see also Saldarriaga v. Gonzales, 241 F. App’x 432, 434 (9th Cir. 2007) (remanding asylum petition for further review because “the IJ did not consider whether [the petitioner’s] relocation would be reasonable”). In Khattak, the BIA determined that the petitioner could relocate to another part of Pakistan where he owned a home and had briefly lived twenty years earlier. 704 F.3d at 206-07. We remanded to the BIA, however, because (1) “neither the IJ nor the BIA addressed evidence in the record indicating that” the petitioner would not be safe in that area and (2) “neither the IJ nor the BIA made any mention of [the reasonableness] factors.” Id. at 207.

          Relevant factors here include:

 “ongoing civil strife within the country “(the IJ found that “electoral violence” is common “in every electoral cycle”);
 “economic…infrastructure “(IJ found that relocation “would be economically difficult”);
 “socialandculturalconstraints”(García-Cruz speaks Quiché, a minority language that has no official status and is spoken mainly in Guatemala’s central highlands); and
 “familial ties”(all of García-Cruz’s extended family live in Chixocol).

-Yet the IJ and the BIA discussed only the fact that García-Cruz’s wife and children were in Salamá. They did not address evidence in the record that appears to undercut the conclusion that García- Cruz could reasonably relocate within Guatemala — for example, García-Cruz’s testimony that he could not live with his wife in Salamá and does not “have a home . . . [or] a job” there. Thus, neither the BIA nor the IJ “presented a reasoned analysis of the evidence as a whole.” Id. at 208 (quoting Jabri v. Holder, 675 F.3d 20, 24 (1st Cir. 2012)).

García-Cruz asserts that “every single factor” supports a conclusion that he cannot reasonably relocate, but he does little to develop this argument. He then asserts that the BIA’s “unfounded conclusion . . . itself requires reversal.” That is not accurate. To reverse the BIA’s order, rather than simply remand it, the evidence must compel us to conclude that it would beunreasonableforGarcía-CruztorelocatewithinGuatemala. Id. at 207 (citing INS v. Elías-Zacarías, 502 U.S. 478, 481 n.1 (1992)). There is significant evidence in the record supporting a conclusion that relocation would be unreasonable. But García- Cruz has understandably focused on the BIA’s failure to properly analyze the reasonableness factors, rather than whether the evidence compels a finding that internal relocation would be unreasonable, and neither the IJ nor the BIA weighed the reasonableness factors. Given the limited analysis on this issue, we think it best to remand to the BIA to consider it fully. We therefore grant the petition for review, vacate the BIA’s order, and remand for further proceedings.”

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PRACTICE POINTER:

8 C.F.R. § 1208.13(b)(3) requires that internal relocation not just be “possible,” but also must be “reasonable” under all of the circumstances. Sometimes Immigration Judges at both the trial and appellate level ignore this requirement and the relevant regulation. Attorneys challenging “internal relocation” should be sure to cite the regulation and refer specifically to the non-exclusive list of the type of factors that should be considered.

Additionally, as pointed out by the 1st Circuit majority, the BIA and the IJ could have found that the respondent suffered past persecution, thus shifting the burden to the DHS to provide that there was no reasonably available internal relocation alternative. In cases of this type, where a finding granting protection could have been made, but the BIA chose not to, it appears that the BIA has both failed to follow the generous dictates of their own precedent in Mogharrabi, but also has abandoned the vision of “guaranteeing fairness and due process for all.” “Close cases” should go to the respondent under Cardoza-Fonseca and Mogharrabi. But, for the last decade plus, the BIA has been unwilling to follow the law and its own precedents mandating generous treatment of asylum seekers.

PWS

05-29-=17

Kushner In Hot Water As Russia Investigation Heats Up — White House Caught Up In Web Of Deceit!

https://www.nytimes.com/2017/05/26/us/politics/kushner-talked-to-russian-envoy-about-creating-secret-channel-with-kremlin.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=first-column-region®ion=top-news&WT.nav=top-news

The NYT reports:

“President Trump’s son-in-law and senior adviser, Jared Kushner, at the White House last week. Credit Doug Mills/The New York Times
WASHINGTON — Jared Kushner, President Trump’s son-in-law and senior adviser, spoke in December with Russia’s ambassador to the United States about establishing a secret communications channel between the Trump transition team and Moscow to discuss strategy in Syria and other policy issues, according to three people with knowledge of the discussion.

The conversation between Mr. Kushner and the ambassador, Sergey I. Kislyak, took place during a meeting at Trump Tower that Mr. Trump’s presidential transition team did not acknowledge at the time. Also present at the meeting was Michael T. Flynn, the retired general who would become Mr. Trump’s short-lived national security adviser, the three people said.

It is unclear who first proposed the communications channel, but the people familiar with the meeting said the idea was to have Mr. Flynn speak directly with a senior military official in Moscow to discuss Syria and other security issues. The communications channel was never set up, the people said.

The three people were not authorized to discuss the December meeting and spoke on the condition of anonymity.

News of the discussion was first reported by The Washington Post. The revelation has stoked new questions about Mr. Kushner’s connections to Russian officials at a time when the F.B.I. is conducting a wide-ranging investigation into Russia’s attempts to disrupt last year’s presidential election and whether any of Mr. Trump’s advisers assisted in the Russian campaign.

Current and former American officials said Mr. Kushner’s activities, like those of many others around Mr. Trump, are under scrutiny as part of the investigation. But Mr. Kushner is not currently the subject of a criminal investigation.

In the days after the meeting with Mr. Kislyak, Mr. Kushner had a separate meeting with Sergey N. Gorkov, a Russian banker with close ties to Russia’s president, Vladimir V. Putin.

American intelligence agencies first learned about the discussion several months ago, according to a senior American official who had been briefed on intelligence reports. It is unclear whether they learned about it from intercepted Russian communications or by other means.

Mr. Trump came into office promising improved relations with Russia on numerous issues, including greater cooperation to try to end the civil war in Syria. During the presidential campaign, he frequently criticized the Obama administration’s Syria policy as unnecessarily antagonistic toward Russia.

The idea behind the secret communications channel, the three people said, was for Russian military officials to brief Mr. Flynn about the Syrian war and to discuss ways to cooperate there. Neither side followed up on it. And less than two weeks later, the idea was dropped when Mr. Trump announced that Rex W. Tillerson, a former chief executive of Exxon Mobil who had worked closely with Russian officials on energy deals, was his choice to become secretary of state.

The interactions between Mr. Trump’s advisers and Mr. Kislyak have been a constant source of trouble for the new administration.”

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Read all about it at the link.

No matter what Trump might say or do, this story isn’t going away. Obviously, the Administration from top down has been unwilling to “come clean” on exactly what was going on.

PWS

05-26-17

Without Fanfare, DOS Boosts Refugee Ceiling!

https://www.nytimes.com/2017/05/26/us/politics/united-states-refugees-trump.html?&moduleDetail=section-news-0&action=click&contentCollection=Politics®ion=Footer&module=MoreInSection&version=WhatsNext&contentID=WhatsNext&pgtype=article

The NYT reports:
“WASHINGTON — Despite repeated efforts by President Trump to curtail refugee resettlements, the State Department this week quietly lifted the department’s restriction on the number of refugees allowed to enter the United States.

The result could be a near doubling of refugees entering the country, from about 830 people a week in the first three weeks of this month to well over 1,500 people per week by next month, according to refugee advocates. Tens of thousands of refugees are waiting to come to the United States.

The State Department’s decision was conveyed in an email on Thursday to the private agencies in countries around the world that help refugees manage the nearly two-year application process needed to enter the United States.

In her email, Jennifer L. Smith, a department official, wrote that the refugee groups could begin bringing people to the United States “unconstrained by the weekly quotas that were in place.”

Although it came the same day as an appeals court ruling that rejected government efforts to limit travel to the United States from six predominantly Muslim nations, the move by the State Department had nothing to do with the court ruling.

The department’s quotas on refugee resettlement were largely the result of budget constraints imposed by Congress in a temporary spending measure passed last fall. But when Congress passed a spending bill this month that funded the government for the rest of the fiscal year, the law did not include any restrictions on refugee admissions.

A State Department spokeswoman, speaking on the condition of anonymity because she was not authorized to discuss the issue publicly, said the department had consulted the Department of Justice about its refugee quotas and had decided to adjust them.”

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Strange, but good news is good news!

PWS

05-26-17

HISTORY: Paul Fanlund In Madison Cap Times: How We Got From Nixon To Trump!

http://host.madison.com/ct/opinion/column/paul_fanlund/paul-fanlund-so-why-can-t-america-just-be-good/article_e8734a95-ed8b-5544-a32f-f5ee791264a3.html#tncms-source=behavioral

Fanlund writes in an op-ed:

“When Roger Ailes died, essays about him ranged from adoring to vilifying. As creator of Fox News, he was perhaps the nation’s most influential political messenger — or propagandist — of the past 50 years.

One aspect of any honest obituary, of course, was his misogyny. Ailes was finally forced out at Fox in 2016 after years of sexual harassing women employees. His 17-year-old son threatened his father’s accusers at the funeral, warning mourners that he wanted “all the people who betrayed my father to know that I’m coming after them, and hell is coming with me.”

But what I found most interesting in immersing myself in analyses of Ailes’ life was how little his craft had to do with liberal versus conservative ideology.

Rather, Ailes was perhaps the master of the dark art of inventing and relentlessly reinforcing hateful caricatures of political opponents — in his case, people of color, bureaucrats, university professors and, of course, the media.

His brilliant execution of that art culminated in Donald Trump.

Ailes, as is widely known, learned from Richard Nixon, for whom he worked as a young television consultant. Nixon launched his political career much earlier by championing “forgotten Americans,” lunch-pail-toting working men whose fortunes, in Nixon’s telling, were stymied by taxes and regulations imposed upon them by far-away elites.

The rest, as they say, is history. Nixon appealed to his “silent majority” to stand against anti-war and civil rights protesters. Democrats opened the floodgates to Republican demagoguery by advancing civil rights. The GOP today has broadened its pool of villains to include Latino and Muslim immigrants.

The 1980s brought jolly Ronald Reagan with his fantastical stories about welfare queens, followed by George H.W. Bush’s law and order and patriotism themes, and so on.

“Individual issues would come and go — acid, amnesty and abortion in 1972, and immigration, political correctness and transgender bathrooms in 2016 — but the attacks on liberals as elite, out of touch and protective of the ‘wrong people’ came from the same playbook,” wrote David Greenberg, a Rutgers professor of history and journalism, in a New York Times op-ed on Ailes.

OK, but why does it always work?

Why are so many — especially older, white, middle-class people — so susceptible to this toxic narrative when it is clear that the trickle-down GOP policies that follow do them so little good?

Maybe, I theorize, it has something to do with how we were all taught.

I’ve talked with many friends about the flag-waving jingoism of our pre-college education, in which our nation was portrayed as perfect, our leaders without fault.

My formal education began when Dwight Eisenhower was president, an era of unfettered national pride. We were a paragon of liberty and justice and never fought in unjust wars. It was as if someone decided that American children could not process the slightest balance or shade of gray.

In this frame, Andrew Jackson was, as Trump likes to say, a glorious “swashbuckler” like himself, not a president who drove Native Americans from their homes, killing thousands in the process. Nor were we ever taught that Jackson, George Washington, Thomas Jefferson and other forefathers owned slaves.

It seems the goal was always to convey “American exceptionalism,” or, more bluntly, reinforce a cultish sense of American superiority.”

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Fanlund’s entire op-ed, at the above link, is well worth a read!

Lots of folks don’t like it when we put US history in perspective. For example, during the “glory days” of my childhood in the 1950’s millions of African Americans throughout the nation, and particularly in the South, were deprived of the basic rights of US citizenship. This was notwithstanding the clear dictates of the 14th Amendment, which had been added nearly a century earlier.

The US and many state governments merely decided not to enforce the law of the land. So much for all of the “rule of law” and “nation of laws” malarkey purveyed by right wingers today.

Indeed, many southern states enacted discriminatory laws that were directly contrary to the 14th Amendment. And, amazingly, for the majority of the 19th and 20th Centuries, courts of law at all levels were complicit in enforcing these unconstitutional laws and ignoring the14th Amendment!

PWS

05-26-17

Noah Feldman In Bloomberg View: 4th Circuit’s Stunning Rebuke Of Trump — Court Basically Calls Prez A Liar!

https://www.bloomberg.com/view/articles/2017-05-25/court-essentially-says-trump-lied-about-travel-ban

Feldman writes:

“In a remarkable 10-to-3 decision, a federal appeals court on Thursday affirmed the freeze on the second iteration of President Donald Trump’s executive order on immigration from six majority Muslim countries. The court said that national security “is not the true reason” for the order, despite Trump’s insistence to the contrary. It’s extraordinary for a federal court to tell the president directly that he’s lying; I certainly can’t think of any other examples in my lifetime.

The decision and the breakdown of the judges voting against the ban — which includes Republican appointees — presages defeat for the executive order in the U.S. Supreme Court, should the Trump administration decide to seek review there. Faced with this degree of repudiation from the federal judiciary, Trump would be well advised not to go to the Supreme Court at all.

The decision for the 4th Circuit Court of Appeals was written by Chief Judge Roger Gregory, who has the distinction of having been appointed to the court first by Bill Clinton, in a recess appointment that would have expired, and then by George W. Bush — a reminder of bipartisanship in the judicial nomination process that seems almost inconceivable today.

Gregory’s opinion had three basic parts, of which the middle one was the most important.

First, Gregory found that the plaintiffs in the case had standing to challenge the executive order as a violation of the First Amendment’s establishment clause. He pointed out that under the “endorsement test” first offered by Justice Sandra Day O’Connor, the establishment clause is violated when the government sends a message to some people that they are insiders, favored members of the political community, or a message to others that they are outsiders, disfavored as citizens.

In O’Connor’s analysis, feelings count. As the 4th Circuit put it in the passage quoted by Gregory, “feelings of marginalization and exclusion are cognizable forms of injury” under the endorsement test. Thus, Muslim plaintiffs who alleged that they experienced a sense of exclusion and harm have the constitutional right to bring a lawsuit. 1

Although the 4th Circuit dissenters objected plausibly that this reliance on emotional experience would allow anyone “who develops negative feelings” to bring an establishment clause case, their objection isn’t really to Gregory’s reasoning, but to the endorsement test itself. And that’s part of constitutional doctrine.

That led Gregory to the heart of his opinion — and the condemnation of Trump as a liar. The strongest legal argument available to the Trump administration was based on a 1972 Supreme Court case called Kleindienst v. Mandel.

In the Mandel case, immigration authorities denied a visa to a Belgian Marxist who had been invited to give lectures in the U.S. The professors who invited him argued that his exclusion violated the freedom of speech.

The Supreme Court denied the claim, stating that when the executive branch excludes a noncitizen from the country “on the basis of a facially legitimate and bona fide reason,” the courts would not “look behind the exercise of that discretion.” That holding looked pretty good for the Trump executive order, which on its face asserts a national security interest in denying visas to people from the six majority Muslim countries.

Here’s where the opinion got personal. Gregory acknowledged that the executive order was “facially legitimate.” But, he said, “bona fide” literally means “in good faith.”

And here, he reasoned, the plaintiffs had provided “ample evidence that national security is not the true reason” for the order. That evidence, the court said, came mostly from Trump himself, in the form of his “numerous campaign statements expressing animus towards the Islamic faith.”

This was really the punchline of the opinion: Trump’s own statements show that he lied when he said the purpose of the executive order was national security. Once that conclusion was on the table, Gregory easily went on to show that such animus violated the establishment clause by sending a message to Muslims that they are outsiders in the political community.

One other George W. Bush nominee, Judge Allyson Duncan, joined the opinion. The three dissents came from Judge Paul Niemeyer, appointed by George H.W. Bush, and two court’s two other George W. Bush nominees. Thus, the breakdown was mostly partisan.

As a result, it’s plausible that Trump might get a few votes for the executive order at the Supreme Court. But he isn’t going to win. Justice Anthony Kennedy will be moved by the argument that the executive order was adopted in bad faith. And even conservative Justice Samuel Alito is likely to be unsympathetic, given his strong record as a defender of religious liberty.
Trump’s lawyers should be telling him right now that it would be a mistake for him to seek Supreme Court review. Not only is he likely to lose, he is likely to lose in a way that undermines his legitimacy and credibility. But it’s doubtful whether he will listen. If Trump had been listening to his lawyers, he wouldn’t be in the situation he’s in now, where the judiciary is telling him to his face that he has bad faith.”

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I’m not even sure the Supremes will take this case.

First, it’s in an odd procedural posture of a preliminary injunction. No trial has ever been held.

Second, the “urgency” — which was fake anyway — clearly doesn’t exist.

Third, there is no Circuit split that needs to be resolved.

On the other hand, it is an interesting constitutional/separation of powers issue, and the Court is now back to “full strength.”

Trump and Sessions would be well advised at this point to heed the advice of the “Supreme Court pros” in the Solicitor General’s Office. But, based on performance to date, that’s unlikely to happen.

PWS

05-25-17

MOYERS & CO: Rachel B. Tiven Accuses EOIR Of Participating In Political Vendetta!

http://billmoyers.com/story/airport-lawyers-defied-trump-under-attack/

Tiven writes:

“While the country has been fixated on President Trump’s firings, leaks and outbursts involving the Department of Justice, that agency has itself been stealthily attacking our democracy by telling good lawyers to stop representing people. Four weeks ago, the Northwest Immigrant Rights Project (NWIRP) — a respected nonprofit in Seattle that represents immigrants in deportation proceedings—received a “cease and desist” letter from the DOJ threatening disciplinary action. The letter demanded that NWIRP drop representation of its clients and close down its asylum-advisory program. The reason: a technicality, perversely applied. NWIRP is accused of breaking a rule that was put in place to protect people from lawyers or “notarios” who take their money and then drop their case.

Last week, NWIRP filed a lawsuit to defend itself against the DoJ’s order—and on Wednesday, a judge granted a restraining order. So for now, the organization can keep helping immigrants who need legal advice. But what’s at stake extends far beyond NWIRP and the 5,000 people it serves every year. The outcome of this legal battle will profoundly impact access to legal representation for the tens of thousands of immigrants who apply for asylum in the United States every year and the hundreds of thousands of undocumented immigrants whose cases are currently in front of an immigration judge.

The outcome of this legal battle will profoundly impact access to legal representation for the tens of thousands of immigrants who apply for asylum in the United States every year and the hundreds of thousands of undocumented immigrants whose cases are currently in front of an immigration judge.
Before I explain more, let’s step back for the context: You have no right to counsel in immigration proceedings. If you are not a citizen — or if the government merely alleges you aren’t — you can be taken from your home, jailed and permanently deported without ever seeing a lawyer. This is perfectly legal. It happened to more than a million people under the Obama administration, which vastly expanded the machinery of deportation. (If you want this to be an “Obama was good, Trump is bad” story, sorry to disappoint.)

On the last day of President Obama’s term, nearly half a million people were in immigration court proceedings, which one judge describes as “death penalty trials in a traffic court setting.” Most of them had no lawyer, and the vast majority of them had committed no crime. They were prosecuted solely for being in the United States without authorization, which is a civil violation and not a crime. (That is the reason you don’t get a lawyer: The familiar promise of “if you cannot afford a lawyer, one will be provided for you” only applies to people accused of crimes.)

In the absence of a right to appointed counsel, a patchwork of underfunded nonprofits (like NWIRP) and attorneys do their best to help immigrants in court. These nonprofits leverage the volunteer work of lawyers at big law firms, who represent children and refugees in immigration and asylum proceedings for free. There are also a few thousand really good private immigration attorneys nationwide, which isn’t enough even for those who can afford to hire them.

There are thousands more unqualified and dishonest scoundrels who steal money from immigrants too vulnerable to report them. And it is these thieves and cheats that the DoJ’s rules were meant to protect immigrants from. But in Jeff Sessions’s DoJ, the Disciplinary Review office of the Executive Office of Immigration Review is instead pursuing NWIRP, and will soon come after other non-profits. The accusation is that because NWIRP provides advice and assistance to people in immigration proceedings without committing to full representation, it is violating the rules.

It’s a Kafkaesque system: The government won’t provide immigrant defendants with legal representation, and they are allowed to get help for free only if they find a lawyer who will commit up-front to a case that will stretch on for years. Otherwise, they’re not allowed to have any help at all, are required to submit complex legal documents with no assistance and lawyers who try to help them will be sanctioned.

Precisely because this would be a cruel and absurd result, NWIRP and its peers around the country have had longstanding agreements with immigration officials that permit them to run asylum-assistance programs without committing to permanent representation. Attacking them now is a shockingly cynical move, akin to sanctioning an emergency-room doctor for sewing up a bleeding patient without first promising to be their doctor for life.

NWIRP doesn’t know why it was singled out. But we do know that NWIRP has been at the forefront of resisting Trump’s travel ban. Its staff and volunteer lawyers were at SeaTac airport immediately after the White House launched the first Muslim ban, and in March it sued to block the second Muslim ban.

And NWIRP isn’t alone; its nonprofit counterparts did the same at airports around the country, leveraging law-school clinics and large-firm lawyers working pro bono. The DoJ’s suspiciously timed cease and desist letter sends a chilling message to exactly these groups, and to volunteer attorneys. This attack by the government on a legal services-provider for immigrants could dissuade law firms from letting their lawyers volunteer for these cases, scaring those firms away by convincing them that immigration-related projects are too risky pro-bono projects.

If they succeed, they don’t just deprive people of scarce resources for volunteer counsel, they gradually muzzle the bar. They marginalize the heroic work of nonprofits like NWIRP and its peers around the country. They defang the big law firms that have been willing to stand up to this administration—like Davis Wright Tremaine, which is assisting NWIRP—and they make immigrant representation a more marginal part of the law.

When lawyers rushed to airports this winter to protect our friends, our neighbors and our Constitution, people cheered. The Trump administration took offense, and now those lawyers are in their cross hairs. The president is taking a sledgehammer to the pillars of our government: the FBI, the Justice Department, the federal courts. America, we are under attack.

Editor’s Note: This story has been updated to reflect the fact that a restraining order enabling NWIRP to continue representing immigrants has been granted.”

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Don’t know if Tiven is right that Sessions and his folks put EOIR up to this, or whether it’s just another case of bad bureaucratic judgement on EOIR’s part.

But, either way, it illustrates the real problem that has been swept under the table for too long: you can’t have a due process court system operating an an agency of the Executive Branch, particularly the USDOJ, well known for its political shenanigans over a number of Administrations. In light of this colossal coflict of interest, the idea of having EOIR investigate ethical violations by private entities seems somewhat comical.

PWS

05-25-17

BREAKING: 4th Circuit Slams Travel Ban — Losses Continue To Pile Up For Trump — Majority Finds Trump Acted In Bad Faith!

Here’s a key excerpt from the majority opinion by Chief Judge Gregory:

“As we previously determined, the Government’s asserted national security interest in enforcing Section 2(c) appears to be a post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country. We remain unconvinced that Section 2(c) has more to do with national security than it does with effectuating the President’s promised Muslim ban. We do not discount that EO-2 may have some national security purpose, nor do we disclaim that the injunction may have some impact on the Government. But our inquiry, whether for determining Section 2(c)’s primary purpose or for weighing the harm to the parties, is one of balance, and on balance, we cannot say that the Government’s asserted national security interest outweighs the competing harm to Plaintiffs of the likely Establishment Clause violation.

For similar reasons, we find that the public interest counsels in favor of upholding the preliminary injunction. As this and other courts have recognized, upholding the Constitution undeniably promotes the public interest. Giovani Carandola, 303 F.3d at 521 (“[U]pholding constitutional rights surely serves the public interest.”); see also Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” (quoting Sammartano v. First Jud. Dist. Ct., 303 F.3d 959, 974 (9th Cir. 2002))); Dayton Area Visually Impaired Pers., Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) (“[T]he public as a whole has a significant interest in ensuring…protection of First Amendment liberties.”). These cases recognize that when we protect the constitutional rights of the few, it inures to the benefit of all. And even more so here, where the constitutional violation injures Plaintiffs and in the process permeates and ripples across entire religious groups, communities, and society at large.

When the government chooses sides on religious issues, the “inevitable result” is “hatred, disrespect and even contempt” towards those who fall on the wrong side of the line. Engel v. Vitale, 370 U.S. 421, 431 (1962). Improper government involvement with religion “tends to destroy government and to degrade religion,” id., encourage persecution of religious minorities and nonbelievers, and foster hostility and division in our pluralistic society. The risk of these harms is particularly acute here, where from the highest elected office in the nation has come an Executive Order steeped in animus and directed at a single religious group. “The fullest realization of true religious liberty requires that government neither engage in nor compel religious practices, that it effect no favoritism among sects or between religion and nonreligion, and that it work deterrence of no religious belief.” Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J. concurring). We therefore conclude that enjoining Section 2(c) promotes the public interest of the highest order. And because Plaintiffs have satisfied all the requirements for securing a preliminary injunction, we find that the district court did not abuse its discretion in enjoining Section 2(c) of EO-2.”

Here’s the Court’s entire 205-page opinion including separate opinions:http://www.ca4.uscourts.gov/Opinions/Published/171351.P.pdf

Judges Agee, Niemeyer, and Shedd dissented.

PWS

05-25-17

N. Rappaport On GOP’s “Extreme Enforcement” Initiatives!

http://thehill.com/blogs/pundits-blog/immigration/334554-republicans-are-preparing-extreme-immigration-measures

Nolan writes in The Hill:

“Highlights from Labrador’s summary of the Davis-Oliver Act.

It provides states with congressional authorization to enact and enforce their own immigration laws to end the executive branch’s ability to unilaterally shut down immigration enforcement.
It withholds certain federal grants from jurisdictions that refuse to honor immigration detainers or prohibit their law enforcement officers from giving immigration-related information to U.S. Immigration and Customs Enforcement (ICE).
Jurisdictions that refuse to honor detainer requests and release criminal aliens may be sued by the victims of crimes the aliens commit after they are released.
It makes membership in a criminal gang grounds for deportation.
It requires background checks to be completed before immigration benefits can be granted.
Criminalization of undocumented aliens.

Section 314 makes crimes out of illegal entry and unlawful presence. If an offender does not have three misdemeanor convictions or a felony conviction, a first offense can result in imprisonment for up to six months. Subsequent offenses can result in imprisonment for up to two years.

If the alien has three misdemeanor convictions or a felony conviction, however, the term of imprisonment can be up to 20 years. This is not as harsh as some of the criminal provisions which are in the Immigration and Nationality Act (INA) already. Smuggling an alien into the country or helping one to remain here unlawfully (harboring) may “be punished by death or imprisoned for any term of years or for life” if it results in the death of any person.

Home free magnet.

President Obama created what I call the “home free magnet”, when he focused enforcement on undocumented aliens who had been convicted of serious crimes or had been caught near the border after making an illegal entry. Aliens wanting to enter the United States illegally knew that they would be safe from deportation once they had reached the interior of the country.

This attracted undocumented aliens and became a powerful incentive for them to do whatever was necessary to enter the United States. President Trump destroyed this magnet with tough campaign rhetoric and his executive order, Enhancing Public Safety in the Interior of the United States, which greatly expands Obama’s enforcement priorities.

. . . .

Perhaps the Democrats should consider supporting a modified version of the Davis-Oliver Act in return for Republican consideration of a modified legalization program and other measures that are important to the Democrats.

A similar agreement was the basis for the Immigration Reform and Control Act of 1986 (IRCA), which made legalization available to millions of undocumented aliens in return for interior enforcement measures and border security.

The Republicans can deport most of the undocumented aliens in the country if they choose to do so, but it would take a long time and would be very expensive politically as well as financially.

They might be willing to consider a legalization program that is based on American needs, such as preventing citizen and lawful permanent resident families from being broken up and providing needed foreign workers for American employers.”

It could be limited to temporary lawful status while background investigations are being conducted. Greg Siskind and I suggested a way to do this in, “Pre-Registration: A Proposal to Kick-Start CIR.”

To be truly comprehensive, immigration reform has to include effective enforcement measures and time for putting together such a bill is running out.

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Read Nolan’s complete article over on The Hill at the above link.

Having served during the Obama Administration (as well as others from both parties) I disagree with Nolan’s characterization of Obama as having a “home free” policy. At least since the summer of 2014, no characterization could be further from the truth!

Beginning in the summer of 2014, the Obama Administrations, quite unwisely in my view, “prioritized” the cases of recent arrivals at the Southern Border. By taking these cases out of sequence, and totally out of proportion to any “threat” they posed, the Obama Administration’s policy of Aimless Docket Reshuffling (“ADR”) helped create an Immigration Court backlog that now approaches 600,000 cases, notwithstanding relatively “flat” receipts and actual increases in the number of sitting judges.

While eliminating the “recent arrivals priority,” the Trump Administration’s essentially “random” enforcement policy, lacking in any type of restraint or rationality, has actually made things much worse. As backlogs mushroom, the “home free” problem is actually more significant, although with a pronounced degree of randomness and irrationally. In other words, total docket chaos in Immigration Court.

While the threat of more “expedited removals,” which evade the Immigration Courts, does hang over the system, the procedures have not actually been implemented. Moreover, contrary to Nolan’s suggestion, there is no chance that the GOP will be able to remove more than a small fraction of the approximately 11 million undocumented aliens in the U.S. Yes, arbitrary enforcement does produce some “terrorism” effect by making everyone feel unsafe. Perhaps a relatively small number of undocumented residents will give up and leave (or try to enter Canada). Nevertheless, there is no practical way that 11 million individuals actually could be removed.

The GOP would do much better to sign on to immigration reforms that would give some type of legal status (not necessarily green cards) to most of those already here, while expanding legal immigration opportunities across the board. The resulting system would actually reduce pressure on the border while making interior enfircement more of a practical possibility than it has been at any time during the last for decades. But, that would take a thoughtful, practical, non-xenophobic, approach — something that has eluded the GOP in the years since the Reagan Administration.

Look for folks like Labrador & Goodlatte to work with the Adminstration to create a complete “train wreck” in the immigration enforcement system.

PWS

05-22-17

10th Amendment Scoring A Comeback At Both Ends Of The Political Spectrum

https://www.wsj.com/article_email/federalism-for-the-left-and-the-right-1495210904-lMyQjAxMTE3MTIyMDUyNTA0Wj/

Jeffrey Rosen writes in the WSJ:

“President Donald Trump has issued a series of controversial executive orders on immigration that are now tangled up in federal courts. Judges in Hawaii and Maryland have blocked the president’s ban on travelers from six mostly Muslim countries, and another judge in Seattle has blocked his executive order threatening to remove federal funding for “sanctuary cities” that refuse to cooperate with federal immigration agents.

If this contest between branches of government sounds familiar, it should. President Barack Obama also tried to use executive orders to push through his own very different immigration policies, and he was similarly rebuffed by the courts. They held that he lacked the unilateral authority to shield millions of undocumented immigrants from deportation.
There’s a lesson in the symmetry of these two examples, and figures from across the political and ideological spectrum are increasingly embracing it: Many of the issues that recent presidents have tried to decide at the national level through executive orders are best resolved at the state or local levels instead. In an era of fierce partisan divisions, all sides are beginning to see the virtues of our federal system in accommodating differences—and encouraging experimentation—on issues such as immigration, law enforcement and education.

Federalism has long been a cause on the right, but now it’s just as likely to be a rallying cry on the left. Rep. Zoe Lofgren, the top Democrat on the House Judiciary’s immigration and border-security subcommittee, recently said: “The Constitution, specifically the Tenth Amendment, protects states’ rights, and it prohibits federal actions that commandeer state and local officials. When it comes to immigration, these principles seem to be overlooked.”

The framers of the Constitution would be pleased with this emerging consensus. By creating a national government with limited powers, they intended to allow the states and local governments to pursue a range of different policies on matters within what used to be called their “police powers”—that is, their authority to regulate behavior, maintain order and promote the public good within their own territory. The founders considered this arrangement the best way to protect liberty and diversity of opinion, as well as to defend political minorities from nationalist tyranny and concentrated power.”

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Perhaps this is a return to constitutionalism. But, perhaps it’s more representative of the failure of Congress to effectively address the need for comprehensive immigration reform.

PWS

05-21-17

9th Cir. Panel Grills Both Sides In Travel Ban 2.0 Case!

https://www.washingtonpost.com/national/religion/another-appeals-court-to-weigh-trumps-revised-travel-ban/2017/05/15/5f188d56-3946-11e7-a59b-26e0451a96fd_story.html?utm_term=.038612a73dbd

Gene Johnson for AP reported in the Washington Post:

“SEATTLE — Federal judges on Monday peppered a lawyer for President Donald Trump with questions about whether the administration’s travel ban discriminates against Muslims and zeroed in on the president’s campaign statements, the second time in a week the rhetoric has faced judicial scrutiny.

Acting Solicitor General Jeffrey Wall, defending the travel ban, told the three-judge panel of the 9th U.S. Circuit Court of Appeals that the executive order should be reinstated because it falls well within the president’s authority.

“No one has ever attempted to set aside a law that is neutral on its face and neutral in its operation on the basis of largely campaign trail comments made by a private citizen running for office,” he said.

Further, Wall said the president had backed off the comments he made during the campaign, clarifying that “what he was talking about was Islamic terrorist groups and the countries that sponsor or shelter them.”

Neal Katyal, who represented Hawaii, a plaintiff in the lawsuit, expressed disbelief at that argument and said Trump had repeatedly spoken of a Muslim ban during the presidential campaign and after.

“This is a repeated pattern of the president,” Katyal said.

The 9th Circuit panel was hearing arguments over Hawaii’s lawsuit challenging the travel ban, which would suspend the nation’s refugee program and temporarily bar new visas for citizens of Iran, Libya, Somalia, Sudan, Syria and Yemen. The judges will decide whether to uphold a Hawaii judge’s decision in March that blocked the ban.

Last week, judges on the 4th Circuit Court of Appeals heard arguments over whether to affirm a Maryland judge’s decision putting the ban on ice. They also questioned whether they could consider Trump’s campaign statements, with one judge asking if there was anything other than “willful blindness” that would prevent them from doing so.

Dozens of advocates for refugees and immigrants rallied outside the federal courthouse in Seattle, some carrying “No Ban, No Wall” signs.”

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Read the entire article at the link. Challenges to District Court orders enjoining parts of “Travel Ban 2.0” are pending on both coasts — in the 9th Circuit and the 4th Circuit. stay tuned!

PWS

05-16-17

Trump On Verge Of Another Travel Ban Loss?

https://www.washingtonpost.com/local/public-safety/us-judge-in-dc-signals-readiness-to-become-third-to-order-halt-to-revised-trump-travel-ban/2017/05/11/af41537e-365f-11e7-b412-62beef8121f7_story.html?utm_term=.525536a419ad

Spencer Hsu reports in the Washington Post:

“A federal judge in Washington on Thursday signaled her willingness to become the third judge nationwide, if needed, to order a halt to President Trump’s revised executive order banning new visas and immigration from six Muslim-majority countries.

U.S. District Judge Tanya S. Chutkan postponed ruling on two combined challenges to the White House action by Iranian-American organizations and a Shi’a Muslim group, saying she would wait for decisions expected after federal appeals courts arguments this month on halts imposed March 15 by judges from Hawaii and Maryland.

But Chutkan said she was persuaded by arguments that the groups’ missions and the lives of more than a dozen individual plaintiffs would be unconstitutionally harmed by the travel ban.

“Upon consideration of the parties’ submissions, the court is inclined to agree with Plaintiffs that they are likely to succeed on the merits of their claims. However … The existence of two other nationwide injunctions temporarily casts uncertainty on the issue of whether the harms Plaintiffs allege are actually imminent or certain,” Chutkan wrote in a two-page order that did not delve into the arguments.

A 13-judge panel of the U.S. Court of Appeals for the 4th Circuit in Richmond is expected to issue a ruling after becoming the first appellate court to hear arguments on the question Monday. Arguments before a three-judge panel of the 9th Circuit in San Francisco are set for May 15, Chutkan noted.

She concluded: “In the event that both existing injunctions are overturned, this court is prepared to issue a ruling without delay.”

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Looks like this issue is unlikely to go away any time soon. The Trump Administration is fueling a litigation bonanza for lawyers.

PWS

05-13-17

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