ANNE APPLEBAUM @ THE ATLANTIC: “History Will Judge the Complicit: Why have Republican leaders abandoned their principles in support of an immoral and dangerous president?” ☠️👎🏻

Anne Applebaum
Anne Applebaum
American Journalist & Historian

https://apple.news/Al__dZnidS7iBkjiQiuWRfg

. . . .

In February, many members of the Republican Party leadership, Republican senators, and people inside the administration used various versions of these rationales to justify their opposition to impeachment. All of them had seen the evidence that Trump had stepped over the line in his dealings with the president of Ukraine. All of them knew that he had tried to use American foreign-policy tools, including military funding, to force a foreign leader into investigating a domestic political opponent. Yet Republican senators, led by Mitch McConnell, never took the charges seriously. They mocked the Democratic House leaders who had presented the charges. They decided against hearing evidence. With the single exception of Romney, they voted in favor of ending the investigation. They did not use the opportunity to rid the country of a president whose operative value system—built around corruption, nascent authoritarianism, self-regard, and his family’s business interests—runs counter to everything that most of them claim to believe in.

Just a month later, in March, the consequences of that decision became suddenly clear. After the U.S. and the world were plunged into crisis by a coronavirus that had no cure, the damage done by the president’s self-focused, self-dealing narcissism—his one true “ideology”—was finally visible. He led a federal response to the virus that was historically chaotic. The disappearance of the federal government was not a carefully planned transfer of power to the states, as some tried to claim, or a thoughtful decision to use the talents of private companies. This was the inevitable result of a three-year assault on professionalism, loyalty, competence, and patriotism. Tens of thousands of people have died, and the economy has been ruined.

This utter disaster was avoidable. If the Senate had removed the president by impeachment a month earlier; if the Cabinet had invoked the Twenty-Fifth Amendment as soon as Trump’s unfitness became clear; if the anonymous and off-the-record officials who knew of Trump’s incompetence had jointly warned the public; if they had not, instead, been so concerned about maintaining their proximity to power; if senators had not been scared of their donors; if Pence, Pompeo, and Barr had not believed that God had chosen them to play special roles in this “biblical moment”—if any of these things had gone differently, then thousands of deaths and a historic economic collapse might have been avoided.

The price of collaboration in America has already turned out to be extraordinarily high. And yet, the movement down the slippery slope continues, just as it did in so many occupied countries in the past. First Trump’s enablers accepted lies about the inauguration; now they accept terrible tragedy and the loss of American leadership in the world. Worse could follow. Come November, will they tolerate—even abet—an assault on the electoral system: open efforts to prevent postal voting, to shut polling stations, to scare people away from voting? Will they countenance violence, as the president’s social-media fans incite demonstrators to launch physical attacks on state and city officials?

Each violation of our Constitution and our civic peace gets absorbed, rationalized, and accepted by people who once upon a time knew better. If, following what is almost certain to be one of the ugliest elections in American history, Trump wins a second term, these people may well accept even worse. Unless, of course, they decide not to.

When I visited Marianne Birthler, she didn’t think it was interesting to talk about collaboration in East Germany, because everybody collaborated in East Germany. So I asked her about dissidence instead: When all of your friends, all of your teachers, and all of your employers are firmly behind the system, how do you find the courage to oppose it? In her answer, Birthler resisted the use of the word courage; just as people can adapt to corruption or immorality, she told me, they can slowly learn to object as well. The choice to become a dissident can easily be the result of “a number of small decisions that you take”—to absent yourself from the May Day parade, for example, or not to sing the words of the party hymn. And then, one day, you find yourself irrevocably on the other side. Often, this process involves role models. You see people whom you admire, and you want to be like them. It can even be “selfish.” “You want to do something for yourself,” Birthler said, “to respect yourself.”

For some people, the struggle is made easier by their upbringing. Marko Martin’s parents hated the East German regime, and so did he. His father was a conscientious objector, and so was he. As far back as the Weimar Republic, his great-grandparents had been part of the “anarcho-syndicalist” anti-Communist left; he had access to their books. In the 1980s, he refused to join the Free German Youth, the Communist youth organization, and as a result he could not go to university. He instead embarked on a vocational course, to train to be an electrician (after refusing to become a butcher). In his electrician-training classes, one of the other students pulled him aside and warned him, subtly, that the Stasi was collecting information on him: “It’s not necessary that you tell me all the things you have in mind.” He was eventually allowed to emigrate, in May 1989, just a few months before the fall of the Berlin Wall.

In America we also have our Marianne Birthlers, our Marko Martins: people whose families taught them respect for the Constitution, who have faith in the rule of law, who believe in the importance of disinterested public service, who have values and role models from outside the world of the Trump administration. Over the past year, many such people have found the courage to stand up for what they believe. A few have been thrust into the limelight. Fiona Hill—an immigrant success story and a true believer in the American Constitution—was not afraid to testify at the House’s impeachment hearings, nor was she afraid to speak out against Republicans who were promulgating a false story of Ukrainian interference in the 2016 election. “This is a fictional narrative that has been perpetrated and propagated by the Russian security services themselves,” she said in her congressional testimony. “The unfortunate truth is that Russia was the foreign power that systematically attacked our democratic institutions in 2016.”

Lieutenant Colonel Alexander Vindman—another immigrant success story and another true believer in the American Constitution—also found the courage, first to report on the president’s improper telephone call with his Ukrainian counterpart, which Vindman had heard as a member of the National Security Council, and then to speak publicly about it. In his testimony, he made explicit reference to the values of the American political system, so different from those in the place where he was born. “In Russia,” he said, “offering public testimony involving the president would surely cost me my life.” But as “an American citizen and public servant … I can live free of fear for mine and my family’s safety.” A few days after the Senate impeachment vote, Vindman was physically escorted out of the White House by representatives of a vengeful president who did not appreciate Vindman’s hymn to American patriotism—although retired Marine Corps General John Kelly, the president’s former chief of staff, apparently did. Vindman’s behavior, Kelly said in a speech a few days later, was “exactly what we teach them to do from cradle to grave. He went and told his boss what he just heard.”

[Read: John Kelly finally lets loose on Trump]

But both Hill and Vindman had some important advantages. Neither had to answer to voters, or to donors. Neither had prominent status in the Republican Party. What would it take, by contrast, for Pence or Pompeo to conclude that the president bears responsibility for a catastrophic health and economic crisis? What would it take for Republican senators to admit to themselves that Trump’s loyalty cult is destroying the country they claim to love? What would it take for their aides and subordinates to come to the same conclusion, to resign, and to campaign against the president? What would it take, in other words, for someone like Lindsey Graham to behave like Wolfgang Leonhard?

If, as Stanley Hoffmann wrote, the honest historian would have to speak of “collaborationisms,” because the phenomenon comes in so many variations, the same is true of dissidence, which should probably be described as “dissidences.” People can suddenly change their minds because of spontaneous intellectual revelations like the one Wolfgang Leonhard had when walking into his fancy nomenklatura dining room, with its white tablecloths and three-course meals. They can also be persuaded by outside events: rapid political changes, for example. Awareness that the regime had lost its legitimacy is part of what made Harald Jaeger, an obscure and until that moment completely loyal East German border guard, decide on the night of November 9, 1989, to lift the gates and let his fellow citizens walk through the Berlin Wall—a decision that led, over the next days and months, to the end of East Germany itself. Jaeger’s decision was not planned; it was a spontaneous response to the fearlessness of the crowd. “Their will was so great,” he said years later, of those demanding to cross into West Berlin, “there was no other alternative than to open the border.”

But these things are all intertwined, and not easy to disentangle. The personal, the political, the intellectual, and the historical combine differently within every human brain, and the outcomes can be unpredictable. Leonhard’s “sudden” revelation may have been building for years, perhaps since his mother’s arrest. Jaeger was moved by the grandeur of the historical moment on that night in November, but he also had more petty concerns: He was annoyed at his boss, who had not given him clear instructions about what to do.

Could some similar combination of the petty and the political ever convince Lindsey Graham that he has helped lead his country down a blind alley? Perhaps a personal experience could move him, a prod from someone who represents his former value system—an old Air Force buddy, say, whose life has been damaged by Trump’s reckless behavior, or a friend from his hometown. Perhaps it requires a mass political event: When the voters begin to turn, maybe Graham will turn with them, arguing, as Jaeger did, that “their will was so great … there was no other alternative.” At some point, after all, the calculus of conformism will begin to shift. It will become awkward and uncomfortable to continue supporting “Trump First,” especially as Americans suffer from the worst recession in living memory and die from the coronavirus in numbers higher than in much of the rest of the world.

Or perhaps the only antidote is time. In due course, historians will write the story of our era and draw lessons from it, just as we write the history of the 1930s, or of the 1940s. The Miłoszes and the Hoffmanns of the future will make their judgments with the clarity of hindsight. They will see, more clearly than we can, the path that led the U.S. into a historic loss of international influence, into economic catastrophe, into political chaos of a kind we haven’t experienced since the years leading up to the Civil War. Then maybe Graham—along with Pence, Pompeo, McConnell, and a whole host of lesser figures—will understand what he has enabled.

In the meantime, I leave anyone who has the bad luck to be in public life at this moment with a final thought from Władysław Bartoszewski, who was a member of the wartime Polish underground, a prisoner of both the Nazis and the Stalinists, and then, finally, the foreign minister in two Polish democratic governments. Late in his life—he lived to be 93—he summed up the philosophy that had guided him through all of these tumultuous political changes. It was not idealism that drove him, or big ideas, he said. It was this: Warto być przyzwoitym—“Just try to be decent.” Whether you were decent—that’s what will be remembered.

This article appears in the July/August 2020 print edition with the headline “The Collaborators.”

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Read Applebaum’s entire, much longer article at the link. Part of it is a fascinating study of how and why, despite backgrounds pointing in exactly the opposite directions, Lindsey Graham abandoned principle and became one of Trump’s “chief collaborators,” while Mitt Romney stood up against Trump and his GOP collaborators in the Senate. 

These days, the GOP doesn’t produce many folks with intellectual honesty and capacity for self-examination. Indeed, those exhibiting anything suggesting those qualities might be lurking in their souls are shunned or railroaded out of the party (see, e.g., Jeff Flake). So, I wouldn’t hold my breath for any of Trump’s toadies to actually own up to or take responsibility for their “crimes against humanity.” 

And “decency,” well, that’s been absent from GOP politicos for some time now. Kids in cages. Taking away the legal and constitutional rights of asylum seekers. Sending abused women refugees back to be tortured by their abusers. Attacking California’s meager payments to our undocumented fellow humans, many performing essential services at risk to their health. Turning Immigration Courts into Star Chambers. Using false narratives to incite hate attacks on African Americans, Hispanic Americans, Asian Americans, and American Journalists. Failing to speak out forcefully against anti-semitic White Nationalist thugs. Looking the other way or even encouraging Trump to mistreat those courageous civil servants who dare speak truth to his lies. “Orbiting” vulnerable asylum seekers back to squalid danger zones. Denying detained kids toothbrushes.The list of indecent acts could go on almost forever. 

But, fortunately, as Applebaum suggests, that won’t save these GOP collaborators from the judgments of history. Unfortunately, however, historical vindication won’t save the lives of those victims who have died at the collaborators’ hands, nor will it undo the scars that some will bear for life as the result of the “crimes against humanity” committed by Trump and his GOP cronies. And, that’s the indelible shame of a nation that let Trump and the GOP wield their toxic political power in the first place.

Due Process Forever! Complicity in the Face of Tyranny, Never!

PWS

06-04-20

🤡CLOWN SHORTAGE IN AMERICA? — EOIR CAN’T FIND ONE TO FILL DEPUTY DIRECTOR JOB — Re-Advertises, Again! — ☠️☠️☠️WARNING: Successful Candidate Must Have Experience in “Cooking Books” & Be Willing “Fall Guy” For America’s Most Dysfunctional Parody of a “Court System!”☠️☠️☠️

🤡🤡🤡🤡🤡

Deputy Director

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

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Overview

  • Open & closing dates
    Opening and closing dates 06/02/2020 to 07/02/2020 
  • Service
    Senior Executive 
  • Pay scale & grade
    ES 00 
  • Salary
    $131,239 to $197,300 per year 
  • Appointment type
    Permanent 
  • Work schedule
    Full-Time 

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Location

1 vacancy in the following location:

  • Falls Church, VAFalls Church, VA

Relocation expenses reimbursed

No

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No

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Announcement number

SES-10830644-20-AS

Control number

569755300

  • Duties
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    Duties
    Summary
    If you are interested in a rewarding and challenging career, this is the position for you!
  • Learn more about this agency
    Responsibilities
    The Executive Office for Immigration Review (EOIR) seeks highly-qualified individuals to join our team of expert professionals in becoming a part of our challenging and rewarding Agency. The primary mission of the Executive Office for Immigration Review (EOIR) is to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the Nation’s immigration laws. Under delegated authority from the Attorney General, EOIR conducts immigration court proceedings, appellate reviews, and administrative hearings. EOIR consists of three adjudicatory components: The Office of the Chief Immigration Judge, which is responsible for managing the Immigration Courts where Immigration Judges adjudicate individual cases; the Board of Immigration Appeals, which primarily conducts appellate reviews of these Immigration Judge decisions; and the Office of the Chief Administrative Hearing Officer, which adjudicates immigration-related employment cases.
  • This position is located in the Office of the Director, Executive Office for Immigration Review, U. S. Department of Justice. Incumbent serves as the Deputy Director. This position enjoys the full delegated authority of the Director to manage all aspects of EOIR operations. Thus, the incumbent is responsible for the supervision of the Chairman of BIA, the Chief of OCIJ, the Chief of OCAHO, and all agency personnel in the execution of their duties. 
  • Typical work assignments will include: 
    • Responsible for the formulation and administration of policies affecting the mission of EOIR.
    • Manages the development, evaluation, and implementation of policies for agency-wide programs.
    • Explores and plans long-range development goals, as well as short-term strategies.
    • Develops and implements funding and resource strategies to further the agency’s goals and oversees strategic planning for all agency components.
    • Exercises the authority delegated by the Attorney General and represents the position and policies of EOIR the the Attorney General, the Deputy Attorney General, Members of Congress and other governmental bodies, the press, the bar, and private groups interested in immigration matter.
  • Travel Required
    Occasional travel – You may be expected to travel for this position.Supervisory status
    Yes

    Promotion Potential
    00

  • Job family (Series)
    0905 Attorney
  • Requirements
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    Conditions of Employment
  • You must be a U.S. Citizen or National.
  • You must complete a background investigation, credit check, and drug test.
  • Selective Service Registration is required, as applicable.
  • May be required to file a Financial Disclosure.
  • Salary payments must be by direct deposit to a financial institution.
  • Probationary period: For those entering the SES career service for the first time are subject to a one-year probationary period.
  • Managerial qualifications of those not a current or former SES employee must be approved by OPM before appointment.
  • Those who completed the Candidate Development Program (CDP) and have ECQ’s certified by OPM must provide a copy with the application.
  • Applicants must meet all qualifications and eligibility requirements by the closing date of the announcement.
  • Qualifications
    In order to qualify for the Deputy Director position, you must meet the following minimum qualifications:
  • Education: Applicants must possess a LL.B. or a J.D. degree.
  • -AND-
  • Licensure: Applicants must be an active member of the bar, duly licensed and authorized to practice law as an attorney under the laws of a U.S. state, territory, Puerto Rico or the District of Columbia (include the MM/YY date of your admission to the bar).
  • -AND-
  • Experience: Applicants must be U.S. citizens and must have practiced as an attorney, post-bar admission, for a minimum of seven (7) years at the time the application is submitted with at least 1 year of experience at a level equivalent to the GS-15 in the Federal service.(Your resume must CLEARLY demonstrate this experience)
  • Applicants must meet all qualifications and eligibility requirements by the closing date of the announcement.
  • IN DESCRIBING YOUR EXPERIENCE, PLEASE BE CLEAR AND SPECIFIC. WE MAY NOT MAKE ASSUMPTIONS REGARDING YOUR EXPERIENCE. If your resume does not support your questionnaire answers, we will not allow credit for your response(s).
  • For more information on the qualifications for this position, click here.
  • Executive Core Qualifications (ECQs): 
  • ECQ 1- LEADING CHANGE. This core qualification involves the ability to bring about strategic change, both within and outside the organization, to meet organizational goals. Inherent to this ECQ is the ability to establish an organizational vision and to implement it in a continuously changing environment.
  • Leadership Competencies: Creativity & Innovation, External Awareness, Flexibility, Resilience, Strategic Thinking, Vision
  • ECQ 2- LEADING PEOPLE. This core qualification involves the ability to lead people toward meeting the organization’s vision, mission, and goals. Inherent to this ECQ is the ability to provide an inclusive workplace that fosters the development of others, facilitates cooperation and teamwork, and supports constructive resolution of conflicts.
  • Leadership Competencies: Conflict Management, Leveraging Diversity, Developing Others, Team Building
  • ECQ 3 – RESULTS DRIVEN. This core qualification involves the ability to meet organizational goals and customer expectations. Inherent to this ECQ is the ability to make decisions that produce high-quality results by applying technical knowledge, analyzing problems, and calculating risks.
  • Leadership Competencies: Accountability, Customer Service, Decisiveness, Entrepreneurship, Problem Solving, Technical Credibility.
  • ECQ 4- BUSINESS ACUMEN. This core qualification involves the ability to manage human, financial, and information resources strategically.
  • Leadership Competencies: Financial Management, Human Capital Management, Technology Management
  • ECQ 5- BUILDING COALITIONS. This core qualification involves the ability to build coalitions internally and with other Federal agencies, State and local governments, nonprofit and private sector organizations, foreign governments, or international organizations to achieve common goals.
  • Leadership Competencies: Partnering, Political Savvy,Influencing/Negotiating
  • Mandatory Technical Qualification Requirements: 
  • In addition to the ECQs above, qualified candidates must possess the following technical qualifications. Possession of these technical qualifications must be clearly documented in your application package and should be addressed separately.
  • 1. Ability to interpret cases, statues and administrative regulations and apply them to an organizations mission.
  • 2. Comprehensive knowledge of immigration law and procedure, with particular expertise in administrative and Judicial case law and regulations.
  • 3. Ability to draft regulations to implement Department and agency policy and statutory requirements.
  • 4. Ability to represent an organization in administration hearings and proceedings.
  • 5. Demonstrated decision-making, problem- solving, and legal writing skills.
  • 6. Ability to create a customer-service driven organization.EducationAdditional information
    Conditions of Employment: Only U.S. Citizens or Nationals are eligible for employment with the Executive Office for Immigration Review. Dual citizens of the U.S. and another country will be considered on a case-by-case basis. All DOJ applicants, both U.S. citizens and non-citizens, whose job location is with the U.S., must meet the residency requirement. For a total of three (not necessarily consecutive years) of the five years immediately prior to applying for a position, the applicant must have: 1) resided in the U.S., 2) worked for the U.S. overseas in a Federal or military capacity; or 3) been a dependent of a Federal or military employee serving oversees.
  • NOTE: Veteran’s preference does not apply to this position. 5 USC 2108(3), which defines “preference eligible”, indicates this does not include applicants for, or members of, the Senior Executive Service.
  • If you are unable to apply online or need to fax a document you do not have in electronic form, view the following link for information regarding an Alternate Application.Read moreHow You Will Be Evaluated
    You will be evaluated for this job based on how well you meet the qualifications above.
    Once the application process is complete, a review of your resume and supporting documentation will be made and compared against your responses to the assessment questionnaire to determine if you are qualified for this job.
  • In order to be rated as meeting the minimum qualifications, we must be able to determine from your application package that you have the education and/or specialized or general experience that is required.
  • Applicants who have qualifying experience performed on less than a full-time basis must specify the percentage and length of time spent in performance of such duties.Read more
    Background checks and security clearance
    Security clearance
    Top Secret Drug test required
    Yes
  • Required Documents
    Help Help
    Required Documents
    To apply for this position, you must provide a complete Application Package by the closing date of this announcement, which includes:
  • 1. Your Resume showing relevant experience; cover letter optional
  • 2. A complete Assessment Questionnaire
  • 3. For those attempting to enter the SES career service for the first time, you must submit mandatory statements to address the Executive Core Qualifications (ECQ).
  • 4. All applicants are required to submit the Mandatory Technical Qualifications (MTQ).
  • 5. Current or former SES must submit SF-50 and/or SES certificate to show current or prior service.
  • Note: Please ensure that your resume contains your full name, address, phone number, employment information such as: Employer name and location; From and to dates (or from date to present for current position), which include the month and year MM/YY for each description of experience, with grade level held, if applicable, education, training etc. Qualifying experience performed on less than a full-time basis must specify the percentage and length of time spent in performance of such duties.
    If you are relying on your education to meet qualification requirements:
    Education must be accredited by an accrediting institution recognized by the U.S. Department of Education in order for it to be credited towards qualifications. Therefore, provide only the attendance and/or degrees from schools accredited by accrediting institutions recognized by the U.S. Department of Education.
    Failure to provide all of the required information as stated in this vacancy announcement may result in an ineligible rating or may affect the overall rating.
  • Benefits
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    Benefits
    A career with the U.S. Government provides employees with a comprehensive benefits package. As a federal employee, you and your family will have access to a range of benefits that are designed to make your federal career very rewarding. Learn more about federal benefits.Review our benefits
    Eligibility for benefits depends on the type of position you hold and whether your position is full-time, part-time, or intermittent. Contact the hiring agency for more information on the specific benefits offered.
  • How to Apply
    Help Help
    How to Apply
    You must submit a complete application package by 11:59 PM (EST) on the closing date of the announcement.
  • * To begin, click Apply Online to create a USAJOBS account or log in to your existing account. Follow the prompts to select your USAJOBS resume and/or other supporting documents and complete the occupational questionnaire, which can be previewed here: https://apply.usastaffing.gov/ViewQuestionnaire/10830644.
  • * Click the Submit My Answers button to submit your application package.
  • * It is your responsibility to ensure your responses and appropriate documentation is submitted prior to the closing date.
  • * To verify your application is complete, log into your USAJOBS account, select the Application Status link and then select the more information link for this position. The Details page will display the status of your application, the documentation received and processed, and any correspondence the agency has sent related to this application. Your uploaded documents may take several hours to clear the virus scan process.
  • * To return to an incomplete application, log into your USAJOBS account and click Update Application in the vacancy announcement. You must re-select your resume and/or other documents from your USAJOBS account or your application will be incomplete.Read more
    Agency contact information
    Allison Smith Allison Smith
    Phone
    (816) 426-5706
    Email
    allison.smith@opm.govAddress

    Office of the Director

  • 5107 Leesburg Pike, Ste. 2300
  • Falls Church, VA 22041
  • USLearn more about this agencyNext steps
    You will be notified of your application status during the hiring process, as applicable. You may check your application status by accessing the USAJOBS website and clicking “Application Status”. The process may take up to 6 weeks.
  • The four points of notification are: 
    • Application Received or Application Incomplete
    • Minimum Qualification Requirement Met/Not Met
    • Eligible (Application Referred) or Eligible (Application Not referred)
    • Selected or Not Selected
  • If your name is referred to the hiring official, you may be contacted directly by that office for a possible interview.Read more
  • Fair & Transparent
    Fair & Transparent
    The Federal hiring process is setup to be fair and transparent. Please read the following guidance.
    Equal Employment Opportunity Policy
    The United States Government does not discriminate in employment on the basis of race, color, religion, sex (including pregnancy and gender identity), national origin, political affiliation, sexual orientation, marital status, disability, genetic information, age, membership in an employee organization, retaliation, parental status, military service, or other non-merit factor. 

  • Read more
    Reasonable Accommodation Policy
    Federal agencies must provide reasonable accommodation to applicants with disabilities where appropriate. Applicants requiring reasonable accommodation for any part of the application process should follow the instructions in the job opportunity announcement. For any part of the remaining hiring process, applicants should contact the hiring agency directly. Determinations on requests for reasonable accommodation will be made on a case-by-case basis.
    A reasonable accommodation is any change to a job, the work environment, or the way things are usually done that enables an individual with a disability to apply for a job, perform job duties or receive equal access to job benefits.
    Under the Rehabilitation Act of 1973, federal agencies must provide reasonable accommodations when: 

    • An applicant with a disability needs an accommodation to have an equal opportunity to apply for a job.
    • An employee with a disability needs an accommodation to perform the essential job duties or to gain access to the workplace.
    • An employee with a disability needs an accommodation to receive equal access to benefits, such as details, training, and office-sponsored events.
  • You can request a reasonable accommodation at any time during the application or hiring process or while on the job. Requests are considered on a case-by-case basis.
    Learn more about disability employment and reasonable accommodations or how to contact an agency.Read more

****************************

According to insiders, this is the fourth or fifth attempt by the current regime to fill what normally would be a “highly desirable” career Senior Executive position. But, in the kakistocracy, it’s likely to be a “career ender.” 

My advice: make sure you have paid up liability insurance and “alternate career plans” if you apply. A good “White Collar Crime” lawyer on retainer wouldn’t  be a bad idea either.

PWS

06-05-20

🏴‍☠️“BIZARRO COURTS” — THE CONSTITUTION APPLIES TO ALL PERSONS IN THE U.S., YET ICE & THEIR “PARTNERS” AT EOIR HAVE ESTABLISHED A CONSTITUTION-FREE “COURT SYSTEM” THAT OPERATES BEYOND THE LAW & MORALITY IN A LEGAL NEVER-NEVER LAND 🧚‍♂️ — How Do They Get Away With It Under The Noses Of Congress & Article III Courts? — An Outrageous Story of Gross 🤮 Institutional & Personal Failures & Ethical Lapses Across All Three Branches of Our Federal Government ☠️👎🏻!

Paul Moses
Paul Moses
Reporter
The Daily Beast
Tim Healy
Tim Healy
Reporter
The Daily Beast

 

Paul Moses and Tim Healy report for The Daily Beast:

‘The Bizarro-World’ Immigration Courts Where the Constitution Isn’t Applied Detainees can be held for weeks or months before seeing a judge. The Justice Department gave “the word of the agency under penalty of perjury” that it would fix that—but only in NY

 

·         ICE officials acknowledged that they couldn’t handle the volume of arrests their own agents made; the major clog was in getting a legal review from the agency’s understaffed legal unit.

 

·         In 11 of the 55 venues that heard more than 500 cases last year, detainees spent six weeks or more in jail before an initial hearing. Such long waits would be unconstitutional in criminal cases; the right to due process requires authorities to not only get a case filed but also to provide an arraignment promptly, generally in no more than 48 hours.

 

·         Among the 55 venues that handled 500 or more detainee cases last year, the longest waits from arrest to initial hearing were in hearing locations at privately run lockups under contract with ICE: Winn Correctional Center in Winnifield, Louisiana, a median of 140 days; T. Don Hutto Residential Center in Taylor, Texas, 72 days; Richwood Correctional Center in Richwood, Louisiana, 64 days…

**********************

Ironically, by his own overt corruption and open disdain for our Constitution and the rule of law, Trump has exposed the deep flaws, grotesque derelictions of duty, and unethical complicity throughout our Constitutional institutions that are supposed to protect all of us, particularly the most vulnerable among us like civil immigration detainees and asylum seekers, from abuses by would-be authoritarian tyrants like Trump!

Here’s a gem:

 

“The larger question behind this mass of numbers is why DHS is detaining so many people when both its legal office and the court lack the staffing—not only judges but support staff as well—to handle them.

‘I would just say, they are the prosecuting agency and in this context, they have complete control over the timeline,’ said Aaron Hall, an immigration lawyer who practices at the court in Aurora, Colorado, which has had substantial delays. ‘If the charging document isn’t ready to go, why are they arresting them?’”

Good question! But don’t expect a straight answer from the “malicious incompetents” at DHS. Nor will today get anything except misleading nonsense from their “partners” at EOIR (“ICE Jr.”).

DOJ was forewarned of this disaster by an independent consultant back in 2017. But, rather than solving the problem, then AG Jeff “Gonzo Apocalypto” Sessions intentionally made things even worse at EOIR. You might remember “Gonzo” as the “mastermind” behind the regime’s unconstitutional child separation policy. His victims were returned to abuse, scarred for life, or imprisoned for the “crime” of asserting their Constitutional and legal rights to fair treatment.  

All of this is wrong, plain and simple! It’s part of “Dred Scotiffication” — now playing out across our nation in many ways. Finally, the systematic “dehumanization of the other” as aided, abetted, and actually encouraged by a majority of the Supremes, is getting some much-needed and long overdue “pushback.”

But the abuses of our Constitution and our values, and the unaccountability of corrupt public officials, present and former, of the Trump immigration kakistocracy, won’t cease until we get “regime change.” That requires substantial personnel and attitude changes across all three branches of our reeling Federal Government! And that definitely includes accountability for those who have failed to insure “equal justice for all” and instead permitted and sometimes aided and abetted the existence of “Constitution-Free Zones” right under their noses!

Due Process Forever! Complicit Officials & Institutions, Never!

PWS

6-04-20

ROUND TABLE STRIKES ANOTHER BLOW IN SUPPORT OF JUSTICE⚔️🛡: Immigration Detainees Have a Right to Due Process in Bond Hearings — PADILLA RAUDALES V. DECKER, 2D CIR.

CHRISTOPHER T. CASAMASSIMA
CHRISTOPHER T. CASAMASSIMA
Partner
Wilmer Hale
Los Angeles
SOUVIK SAHA
SOUVIK SAHA
Counsel
Wilmer Hale
Washington, D.C.
Knightess
Knightess of the Round Table

 

INTEREST OF AMICI CURIAE1

Amici curiae have served as Immigration Judges and as members of the Board of Immigration Appeals (“BIA”). Amici are invested in the resolution of this case because they have dedicated their careers to improving tghe fairness and

2

efficiency of the U.S. immigration system. Through their centuries-long collective experience, amici have adjudicated hundreds—if not thousands—of immigration detention hearings. Amici have substantial knowledge of immigration detention issues, including the practical impact of the burden of proof in such hearings.

INTRODUCTION AND ARGUMENT SUMMARY

Under the Fifth Amendment, “[n]o person” shall “be deprived of … liberty … without due process of law[.]” U.S. Const. amend. V. The “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). This liberty is so fundamental that the law tolerates its restraint only in limited circumstances.

1

Amici are invested in the resolution of

2

efficiency of the U.S. immigration system. Through their centuries-long collective experience, amici have adjudicated hundreds—if not thousands—of immigration detention hearings. Amici have substantial knowledge of immigration detention issues, including the practical impact of the burden of proof in such hearings.

INTRODUCTION AND ARGUMENT SUMMARY

Under the Fifth Amendment, “[n]o person” shall “be deprived of … liberty … without due process of law[.]” U.S. Const. amend. V. The “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). This liberty is so fundamental that the law tolerates its restraint only in limited circumstances.

1

Amici are invested in the resolution of this case because they have dedicated their careers to improving the fairness and

Board of Immigration Appeals (“BIA”).

Amici have filed substantially similar briefs in other cases involving burden of proof issues in proceedings under 8 U.S.C. § 1226(a). Here, no party or party’s counsel authored this brief in whole or in part, nor contributed money to preparing or submitting this brief. Only amici or their counsel contributed money to prepare or submit this brief. The parties have consented to the filing of this brief.

2

A complete list of amici is included in this brief’s addendum.

Case 19-3220, Document 116, 06/03/2020, 2854056, Page13 of 56

Such restraint violates the Due Process Clause “unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow nonpunitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690. Yet, federal law provides far greater protections to criminal defendants than it does to noncitizens in civil proceedings—even though the distinctions between criminal and non-criminal proceedings mean very little to a person sitting behind bars.

Accordingly, noncitizens already face significant hurdles in detention proceedings brought under 8 U.S.C. § 1226(a). At issue in this appeal is whether another, even higher and more fundamental, barrier to due process can be erected in this Circuit: do noncitizens bear the burden of justifying their freedom from detention? For noncitizens, the answer to this question is no mere technicality—it can mean the difference between freedom and confinement. This burden’s allocation, therefore, “reflects the value society places on individual liberty.” Addington v. Texas, 441 U.S. 418, 425 (1979).

Given their collective experience in adjudicating immigration bond hearings, amici are particularly well-suited to address the monumental question in this case. To that end, amici wish to share the following observations for this Court’s benefit:

-2-

Case 19-3220, Document 116, 06/03/2020, 2854056, Page14 of 56

First, noncitizens already enjoy fewer procedural protections than criminal defendants. We contrast the procedural rules for detaining criminal defendants and noncitizens to underscore the challenges that noncitizens face in immigration bond hearings, and to highlight the need for a presumption against detention as one of the last remaining bulwarks to protect noncitizens’ liberty.

Second, detention of noncitizens consumes the government’s already- limited administrative and judicial resources. Amici highlight the staggering costs that are associated with immigration detention, as well as the strain on immigration courts resulting from the unnecessary detention of noncitizens.

Third, contrary to the government’s position, placing the burden of proof on the government would not generate fiscal or administrative hardship. Amici advance that position with confidence because the government previously shouldered that exact burden over a fifteen-year period. Several of the amici served as Immigration Judges within that period and found that this older system did not cause additional costs or administrative hurdles.

Fourth, in amici’s experience, detaining noncitizens actually increases the burden on the immigration court system. While in detention, noncitizens face significant challenges in adequately preparing their cases. Further, the Executive Branch now utilizes “performance metrics” to encourage Immigration Judges to accelerate the fact-finding process in detention proceedings. With less time for

-3-

Case 19-3220, Document 116, 06/03/2020, 2854056, Page15 of 56

individualized fact-finding, noncitizens will have even less opportunity to marshal the facts needed to satisfy the burden to avoid detention. Reallocating the burden of proof in immigration bond hearings, therefore, would reduce costs.

Fifth, and finally, amici offer alternatives to noncitizen detention that would inject much-needed resources to the immigration court system. The government’s aversion to such alternatives rest on a single statistic suggesting that the vast majority of noncitizens abscond upon release on bond. That statistic, however, is misleading and inconsistent with other available data, and bears little resemblance to the reality that amici encountered in years of adjudicating immigration cases.

Together, these observations should lead this Court to conclude that due process requires the government to make some sort of individualized showing before it may place noncitizens under lock and key.

. . . .

Read the full brief here: AS FILED No. 19-3220 Amici Br. Padilla Raudales v. Decker (2d Cir.)

*****************************

Thanks again not only to the signatory members of our Round Table, but especially to CHRISTOPHER T. CASAMASSIMA, SOUVIK SAHA, and the other members of their pro bono team over at  WILMER HALE.  Without assistance like yours, the “Voices of the Round Table” would not be heard in support of justice in so many cases throughout our nation!

DUE PROCESS FOREVER!

PWS

06-04-20

KAKISTOCRACY KORNER: FRAUD, WASTE, & ABUSE UNDER THE EOIR BIG TOP 🤡🎪🤹‍♂️ — TRAC DECLARES EOIR’S BOGUS STATISTICS TO BE NATIONAL DISASTER! ☠️— “The EOIR’s apparent reckless deletion of potentially irretrievable court records raises urgent concerns that without immediate intervention the agency’s sloppy data management practices could undermine its ability to manage itself, thwart external efforts at oversight, and leave the public in the dark about essential government activities.”🤮  — WHERE’S THE OVERSIGHT? WHERE’S THE ACCOUNTABILITY? 

https://trac.syr.edu/immigration/reports/611/

EOIR’s Data Release on Asylum So Deficient Public Should Not Rely on Accuracy of Court Records

TRAC has concluded that the data updated through April 2020 it has just received on asylum and other applications for relief to the Immigration Courts are too unreliable to be meaningful or to warrant publication. We are therefore discontinuing updating our popular Immigration Court Asylum Decisions app, and will take other steps to highlight this problem[1]. We also wish to alert the public that any statistics EOIR has recently published on this topic may be equally suspect, as will be any future reports the agency publishes until these major data deficiencies are explained and rectified[2].

The EOIR’s apparent reckless deletion of potentially irretrievable court records raises urgent concerns that without immediate intervention the agency’s sloppy data management practices could undermine its ability to manage itself, thwart external efforts at oversight, and leave the public in the dark about essential government activities. Left unaddressed, the number of deleted records will compound each month and could trigger an expensive data crisis at the agency. And here the missing records are the actual applications for asylum, and how the court is handling them. This is a subject on which there is widespread public interest and concern.

EOIR Data Irregularities Approaching Point of No Return

Despite TRAC’s appeals to the EOIR, Immigration Court records continue to disappear each month. TRAC initially reported 1,507 missing applications for relief in our October 2019 report, which grew to 3,799 missing applications the following month. We wrote EOIR Director James McHenry providing a copy of the 1,507 missing applications asking for answers on why these records were missing from their files. We wrote again when the number of missing applications more than doubled the following month. These letters were met with silence. Not only have these cases disappeared entirely, they have not been restored in any subsequent data releases and the number of missing relief applications continue to grow. (See the final section for a short explanation of TRAC’s methodology.)

Alarmingly, the number of relief applications that were present in the March 2020 data release but were missing in the April release jumped to 68,282. This is just the number of records that disappeared over a single month. It does not include the ever growing number of applications that had previously disappeared month-by-month. As was true in past months, roughly four out of five of the records in the March 2020 release that disappeared from April’s release concerned applications on which the court had rendered its decision, including many cases in which the immigration judge had granted asylum as well as other forms of relief.

To put that into perspective, the number of missing cases just last month is more than the 63,734 asylum applications received by the Immigration Courts during all of FY 2015. If these applications are missing because they have been deleted from the Court’s own master files, the magnitude of the task of restoring just this single month’s destruction—assuming this is even possible—is enormous. To go back and restore the cumulative number of relief applications that went missing during previous months will obviously be even greater.

In fact, so many asylum decisions were dropped from EOIR’s April release that the cumulative number of asylum decisions went down, not up, despite asylum decisions continuing to be made. The volume of disappearing records has reached a scale that little faith can be placed in the factual accuracy of reports published by the EOIR based on its data.

The EOIR’s escalating data problems should raise dire concerns for Congress, policymakers and the public who routinely put their faith in federal agencies to provide complete and accurate information about their work. Indeed, the management of the court system itself, including the quota system recently imposed on immigration judges, presupposes the accuracy of the court’s own records. It is deeply worrisome that the EOIR and the Department of Justice appear unconcerned with ensuring that their own records are accurate and uncommitted to providing the public with accurate and reliable data about the Court’s operations.

TRAC Urges EOIR to Take Immediate Action

To date, the EOIR has not responded to TRAC’s requests for an explanation of these disappearances, nor has the EOIR responded to TRAC’s FOIA requests for records that would shed light on this matter.

Therefore, TRAC has written a third letter to Director McHenry reporting our findings of 68,282 new disappearances and we are again seeking a commitment from him to take the steps needed to address the problem. More urgently, we are asking that the EOIR immediately preserve—rather than destroy—all back-up tapes or other media in the hopes that records apparently improperly deleted from the Court’s master files might be restored. We assured Director McHenry that we would be more than happy to work cooperatively with the agency to help them better ensure that going forward the public is provided with more accurate and reliable data about the Immigration Court’s operations.

How EOIR’s Data Mismanagement Impacts TRAC’s Immigration Court Tools

TRAC’s mission is to provide the public with accurate, reliable, unbiased, and timely data on the operations of the federal government, and to ensure that the public is informed about changes that impact our data.

The EOIR’s disappearing records fall under the data related to applications for relief. The record on the existence of the court case itself is present, but for a growing number of these cases there now is no record that the immigrant ever applied for relief, or the court’s decision on that application. One of the key moments in the life of the case—including applications for asylum—is missing entirely. As a direct consequence TRAC does not have the information needed to provide reliable or meaningful updates on the court’s handling of applications for asylum and must therefore discontinue updating its asylum decision app.

While each of the other files in EOIR’s monthly data releases also have the same problem of records disappearing, the magnitude of these disappearances has not reached the levels seen with applications for relief. While still worrisome, these levels have not yet climbed to where we believe we can no longer use the information we receive. Thus, we are continuing to update the rest of our other Immigration Court apps. We continue to closely monitor the situation, while we urge EOIR to explain why records keep disappearing. We further continue to ask the agency to take the steps needed to rectify the situation.

TRAC will continue to retain all previous and future EOIR data shipments for research purposes.

How did TRAC Identify the EOIR’s Data Irregularities?

The Executive Office for Immigration Review (EOIR) oversees the nationwide Immigration Court system, including more than 60 physical Immigration Court locations (as well as many more remote hearing locations including teleconference sites and ad hoc “tent” courts), hundreds of Immigration Judges, and millions of immigration cases that pass through the court system. The EOIR records information on each case and tracks various proceedings, filings, hearings and other aspects of each case in a large database. This database is central to the Court’s ability to manage its workload, prepare and publish reports for the public, and respond to queries from Congress about its operations. It is also used in implementing new practices, including the recent decision to impose new evaluation criteria for Immigration Judges.

As a result of TRAC’s ongoing FOIA requests, the EOIR releases a large batch of anonymized Immigration Court data each month that provides a snapshot of a great deal of the information recorded in this database on the handling of each case. In short, TRAC does not create data on the EOIR; rather, TRAC’s uses the EOIR’s own data. This data is the foundation for TRAC’s Immigration Court data tools which help ensure transparency and accountability for the American public.

TRAC used this data to precisely identify deleted records. While the information TRAC receives does not identify individuals, EOIR’s computer system assigns a unique computer sequence number to each case that identifies it. Because TRAC receives comprehensive data shipments from the EOIR each month that include these unique computer-assigned tracking numbers, TRAC can match each record received in the previous month with the same corresponding record in the following month’s release. Each release is also cumulative. That means it should include every record from the previous month plus every new record that has been added to the database over the course of the current month. As a rule, records should therefore never disappear[3].

When a record that was present is not included in the next month’s release, TRAC refers to these as missing or disappearing records. Because humans maintain most databases including EOIR’s, mistakes will occur. Therefore no database is ever perfect. So a few disappearing records might be expected. However, as is the situation here, concern is warranted whenever significant numbers of records disappear. Indeed, alarm bells should ring as the number of disappearing records grow. This situation means the data can no longer be trusted to reliably track the court’s proceedings.

Footnotes

[1] EOIR monthly releases consist of a series of tables covering different aspects of its workload. While each of these tables continue to have disappearing records each month, the magnitude of these missing records varies by table. For example, in the table that tracks each case before the court there were 228 cases present in March that disappeared from the April release, compared with 41,233 new cases that were added. While the problem of disappearing case records remains very troubling for the case table along with each of the other EOIR tables, TRAC believes that their magnitudes do not rise to the same level as the problem for applications for relief where the data now are so unreliable and misleading that they do not warrant the public placing any trust in them. At this time, we therefore are continuing to update our other Immigration Court apps while alerting the public to this continuing serious problem that affects the reliability of EOIR data releases more generally.

[2] For an example of a recent EOIR publication that may contain significant data errors, see the graph and table reporting total asylum applications through March 2020, which was generated using data from April 2020: https://www.justice.gov/eoir/page/file/1106366/download.

[3] Even when a data entry error is made, the database has special codes to indicate that a record should be disregarded because it was a data entry error so that rarely is it necessary to actually delete records.

TRAC is a nonpartisan, nonprofit data research center affiliated with the Newhouse School of Public Communications and the Whitman School of Management, both at Syracuse University. For more information, to subscribe, or to donate, contact trac@syr.edu or call 315-443-3563.

. . . .

**************

Read the rest of TRAC’s report at the link.

EOIR isn’t willing and able to do its only function: provide fair, impartial, and timely adjudications to asylum seekers and other migrants while following best judicial practices. 

But they do have time to waste taxpayers’ money on nonsense like the chart at this link:  https://www.justice.gov/eoir/file/1217001/download. This was obviously designed to further the Trump regime’s false narrative regarding the merits of asylum claims. While the chart is largely incomprehensible, misleading nonsense, what stands out is this:

At the end of an abusive process during which the law has been illegally skewed against asylum seekers and “judges,” most of whom are not experts in asylum law and who have never even represented an asylum seeker, are encouraged to deny meritorious claims for protection, against the odds, over 25% (12 of 47)  of those who actually get through this biased dysfunctional mess still get asylum!

It’s reasonable to believe that under a fair system, with impartial decision makers who have expertise in asylum law, and without the interference of biased, overtly anti-asylum politicos like Sessions and Barr, asylum seekers would succeed the majority of the time, as they did before efforts by both the Obama and Trump Administrations to “ratchet down” asylum grants so that the EOIR system would serve DHS Enforcement as a “deterrent” to those seeking protection.

Obviously, the DOJ is afraid that under a fair, independent judicial system that actually employed judges who were experts in asylum law and who had real life experience representing asylum applicants, the majority of claims would be granted, thereby exposing the fraud, dishonesty, and misconduct involved in the present anti-asylum system.

It’s a national disgrace that is actually harming and sometimes killing those deserving of protection under our law.

Due Process Forever! Dishonest, Unethical, Incompetent, and Intentionally Biased “Courts” Never!

PWS

06-04-20

SUPREME FAILURE: HOW THE SUPREMES ENABLED STEPHEN MILLER’S RACIST ATTACK ON VULNERABLE IMMIGRANTS AND AMERICANS’ HEALTH, AT THE WORST POSSIBLE TIME – America Needs & Deserves Better From Our Life-Tenured Justices! – This Isn’t Rocket 🚀 Science — The Illegality and Immorality Are Clear – What’s Disturbingly Missing Is The Courage & Will to Stand Up To Trump, Miller, and Other Members of The Regime Who Are Running Roughshod Over Our Justice System & Our National Values 🏴‍☠️!

Jeremy Raff
Jeremy Raff
Video Producer
The Atlantic

https://apple.news/A7DwtaicORlSZg-2eIijU5g

Jeremy Raff reports for The Atlantic:

On a Friday afternoon in mid-April, Gladys Vega received a disturbing message: A woman hospitalized with COVID-19 needed food for the 11-year-old daughter she’d left at home. Worried that the girl would go hungry, Vega rushed out of her office and into the tangle of downtown Chelsea, Massachusetts, a 1.8-square-mile city across the Mystic River from Boston. The 52-year-old Vega, wearing a black tracksuit, a highlighter-yellow T-shirt, and a little bit of matching eye glitter, jumped out of the car so quickly, I could barely keep up. She approached a narrow brick apartment building and asked the people on the stoop to open the front door. “You don’t have to worry; I’m not immigration,” Vega said in Spanish. “Let me in.”

Vega was accustomed to convincing fearful Chelsea residents to trust her. More and more restrictive federal immigration measures had motivated some locals—day laborers, food-factory workers, janitors, and other employees now deemed“essential”—to leave as few traces of their presence as possible: using P.O. boxes instead of their own mailboxes at home, and steering clear of public buildings where Immigration and Customs Enforcement had made arrests.

In late February, new Trump-administration regulations took effect that radically expand whom immigration officials judge to be a “public charge”—permanently dependent on government aid—and thus ineligible for a green card. The rules allow officials to deny green-card applicants if they have used food stamps, Medicaid, housing assistance, or other safety-net programs that were previously exempt from consideration.

Vega, the executive director of a social-justice organization called the Chelsea Collaborative, believes that these measures have made it more difficult for immigrants to get the care and support they need to stop the spread of COVID-19. Out of fear of triggering the new public-charge rule, immigrants in Chelsea have been disenrolling from public services, worsening the overcrowding, food insecurity, and poor access to health care that make the area so vulnerable to the coronavirus.

By mid-April, the infection rate in Chelsea was six times higher than the state average, comparable to the rate in the hardest-hit boroughs of New York City. With the support of local officials, Vega is trying to use the credibility she’s earned over decades of fighting slumlords, predatory bosses, and scammers to persuade the hardest-hit families to use a makeshift social safety net—and to go to the hospital despite their fear that doing so will be weaponized against them later.

“Because they’re afraid of their status,” Vega said, “they will not speak up.”

The message about the girl in need of food, Vega learned, was outdated: Her mother had returned home earlier that day, after spending a week in the hospital. Still wheezing, the woman stood in the doorway wearing pajama pants, a gray overcoat, and a surgical mask. She told me she had deferred care for two weeks, and went to the hospital only when she could no longer breathe. Vega had prepared a box of bread, corn flour, beans, cookies, cooking oil, and milk. “God bless you,” the woman said. One floor below, several families who appeared sick were crammed into a handful of rooms. Vega gave them a box too.

Forty-two years ago, in the midst of the blizzard of 1978, Vega’s parents moved her from a farm in Puerto Rico to their own cramped apartment in Chelsea. The city, the climate, the language—it was “a nightmare,” she told me.

Her cousins in town spoke only English, so she became close with the other Spanish-speaking kids in school—mostly children who had fled the Central American civil wars of the 1980s with their families. Vega came to understand that her classmates didn’t see parents or relatives left behind for years at a time, because of immigration restrictions. “My passion for organizing came from those classrooms,” she said. By seventh grade, Vega was protesting cuts to bilingual education with a 700-student walkout she’d organized.

The newly formed Chelsea Collaborative hired her as a receptionist in 1990, when she was 21. From the beginning, she was a troublemaker. “I liked to challenge the status quo,” she told me. She set about trying to “manage up,” and to persuade her boss, the executive director, to put Latinos on the board. Her playbook: She’d gently inquire about a retirement party for a current board member. Then she’d line up a replacement, drop hints about all the funding her new pick could bring in, and order a plaque for the presumptive retiree. She tried to make it effortless for her boss to take her advice. “That’s how I moved out all of these older white men,” she said with a laugh.

Vega witnessed the first major wave of immigrant disenrollment from safety-net programs when Congress passed the Clinton administration’s welfare-reform law in 1996. The legislation, along with an immigration bill passed the following month, restricted green-card holders from using some federal benefits during their first five years in the country. Vega was working as a community organizer for the Chelsea Collaborative by then, holding large meetings at the Saint Rose of Lima Catholic church, where she was connecting immigrants with employment and educational opportunities. After the new laws passed, Vega recalled, immigrants felt that “to take any public assistance, you needed to bleed for [the government] to trust you. It was similar to what is happening now in terms of public charge.”

[Read: ‘We are like sitting ducks’]

Around the same time that Vega was organizing at Saint Rose, Michael Fix, who is now a senior fellow at the nonpartisan Migration Policy Institute, received a sheaf of data from public-health officials in Los Angeles County that showed just how many noncitizens used public benefits before and after the laws took effect. The impact was apparent immediately, he recalled when we spoke. “I thought, Holy hell, what’s going on here?” Immigrant participation in health services had dropped sharply even among those who technically still qualified. Refugees, for instance, were unaffected by the new rules, but their participation in Medicaid fell 39 percent.

Fix and other researchers began to study these spillover consequences, concluding that they represented a chilling effect. Even immigration authorities were worried, especially about what the chilling effect would mean for public health. “Growing confusion is creating significant, negative public health consequences across the country,” the Immigration and Naturalization Service, which granted green cards at the time, wrote in 1999. “This situation is becoming particularly acute with respect to … the treatment of communicable diseases.”

Last summer, as the Trump administration’s beefed-up version of the public-charge rule sped toward approval, doctors and social workers at Massachusetts General Hospital’s clinic in Chelsea contacted Vega because they were concerned that immigrants were avoiding health care. The chilling effect was at work again. She brought clinic representatives to a street fair at Saint Rose full of food stalls and kids playing games on a warm evening. They walked around greeting attendees. “Please come back to MGH Chelsea,” Vega recalled the providers saying. “We miss you as patients.”

The expansion of the public-charge rule, Fix told me, is best understood as a way to favor affluent immigrants without having to go through Congress—a major victory for immigration hard-liners. According to an estimate by the liberal Center on Budget and Policy Priorities, the new standards are so restrictive that if they were applied to everyone in the United States, up to half of all Americans could be deemed a public charge and thus not qualify to settle in the country.

The current chilling effect has not been measured. But Tiffany Joseph, a sociologist at Northeastern University who studies health access in Boston’s immigrant neighborhoods, told me, “You should not underestimate how much the fear of ICE raids and the public-charge rule worsened the pandemic in Chelsea.”

Jessica Zeidman, a primary-care doctor at MGH Chelsea, told me that she saw disenrollment continue to intensify in the months before the pandemic hit. In December, for instance, a newly pregnant patient ended a checkup with a goodbye: She told Zeidman that she wouldn’t be seeing her anymore, for fear of triggering the rule, which would go into effect two months later. Zeidman tried to persuade her not to withdraw from WIC, the federal nutrition program for women, infants, and children, because the new restrictions wouldn’t apply to pregnant women.

“Most of the patients I have that have talked about disenrolling are not even actually affected by the rule; they just think they are,” Zeidman told me. “Part of its power is [that] it affects many, many more people than it’s actually written to affect.”

Around the same time, another one of her patients, a man in his 50s, opted to remove his name from a public-housing waiting list, even though he was eligible for the benefit, because he was afraid of somehow triggering the rule and preventing other family members from obtaining green cards. As the pandemic spread, Zeidman wondered whether he was still stuck in overcrowded housing, risking infection By early April, immigrant patients showed signs of serious illness, after waiting as long as possible to seek care, Zeidman said. Almost all of them had labored breathing and a high fever.

“We’re reaping what we’ve sown,” she said.

. . . .

 

*************************************

Read the rest of the article at the link.

 

This isn’t rocket science! The irrationality, invidious motives, and danger to the public health of the Administration’s White Nationalist attack on vulnerable immigrants was obvious “from the git go.” Lower Federal Courts figured it out quickly and properly enjoined the illegal regulations change.

 

That’s hardly surprising given that the overwhelming majority of the 210,000 comments on the proposed change opposed it on public health and rational governance grounds, many coming from public health experts. The vile racism of Stephen Miller is also a matter of public record.

 

Nor is it surprising that the various “exemptions” are largely meaningless, given DHS’s and this regime’s complete and totally deserved lack of credibility in the immigrant community. It’s a commonly known fact of which any immigration practitioner or community worker would be aware, but of which members of our highest Court feign ignorance.

 

So, when we wonder “how we got to this point,” we can’t ignore the lack of practical understanding of human problems, absence of empathy, and the abandonment of fundamental principles of due process and equal justice for all represented by a Supremes’ majority that unleashed an illegal, ill-advised, invidiously discriminatory travesty like the “Stephen Miller’s public charge regulations” on our nation and some of our most vulnerable members of society – many of whom are actually suffering and even dying to bring us the essential goods and services that have kept us afloat during the pandemic.

 

A group of younger people that I work with raised these regulations with me recently. They appeared to have a very clear understanding of the adverse legal, ethical, practical, moral, and historical consequences of allowing one misguided group to inflict this type of invidious harm on another group in our society, thereby diminishing the general welfare. Pity that a majority of those serving on our highest Court lacked those same clear insights and values.

Actions and inactions have consequences. And, as we are now seeing, they can be quite ugly. A better Executive and a better Senate are keys to better Federal Courts, from the Supremes down to the Immigraton Courts. If nothing else, Trump has shown us how broken and feckless our current institutions are in the face of tyranny and “malicious incompetence.” We need regime change at all levels.

This November, vote like your life depends on it! Because it does!

 

PWS

 

06-02-20

 

 

 

 

 

🤡AMERICA’S CLOWN PRINCE DECLARES WAR ON: AMERICA! — As America Burns 🥵, He Throws Gasoline On Fire, Poses For Photo Op! — Malicious Incompetence, Unsuitability For Office On Full Display As Leaderless America Careens From Pandemic to Civil Rights Crisis! — “ Trump appeared to be trying to project strength at a moment when his presidency seems feckless and as the nation spins out of control. If it occurred abroad and not in the White House, Americans might perceive a ridiculous self-deluding act of a wanna-be strongman.”

Trump Clown
Donald J. Trump
Dangerous American Clown
Stephen Collinson
Stephen Collinson
White House Reporter
CNN

https://www.cnn.com/2020/06/02/politics/donald-trump-george-floyd-protest-military/index.html

Stephen Collinson reports for CNN:

(CNN)President Donald Trump‘s made-for-TV embrace of authoritarianism’s imagery and tools at a brittle national moment risks unleashing toxic political forces that threaten America’s democratic traditions.

Trump on Monday turned security forces on peaceful protesters in front of the White House, as tear gas and rubber bullets flew, before declaring himself the “law and order” President. Then, in one of the most bizarre moments in modern presidential history, he strode across the park to stand in front of an iconic church holding a Bible aloft in a striking photo op.

It was a moment of vanity and bravado — orchestrated for the cameras and transparently political — as Trump struggles to cope with protests sweeping the country after the killing of George Floyd and tries to cover up his botched leadership during the coronavirus pandemic. Overnight, the White House’s official Twitter account released a triumphant video of the moment set to music but omitting any signs of the mayhem unleashed on the protesters.

Trump appeared to be trying to project strength at a moment when his presidency seems feckless and as the nation spins out of control. If it occurred abroad and not in the White House, Americans might perceive a ridiculous self-deluding act of a wanna-be strongman.

Trump threatens military force if violence in states isn’t stopped

“I thought I was watching a scene from something in Turkey, and not in the United States,” retired Lt. Gen. Russel Honore, who commanded National Guard troops in New Orleans after Hurricane Katrina, told CNN’s Anderson Cooper.

And after using St. John’s Church, the “church of the presidents,” which had experienced a basement fire during Sunday’s demonstrations, Trump drew immediate criticism from faith leaders, including Bishop Mariann Edgar Budde of the Episcopal Diocese of Washington.

“The President just used the Bible, our sacred text of the Judeo-Christian tradition, and one of the churches of my diocese, without permission, as a backdrop for a message antithetical to the teachings of Jesus,” Budde said on “AC360.”

Trump’s showmanship was motivated in part by anger at media coverage saying he had sheltered in a bunker below the White House on Friday night amid protests in Washington, CNN’s Kaitlan Collins and Kevin Liptak reported. It shows how far Trump will go to protect his own thin skin and how his power plays are often motivated by assaults on his dignity.

But his behavior is also alarming, considering the vast power at his command, uses of demagogic tropes and capacity to buckle the traditions and structures of civilian, democratic government. So while Trump’s turn to the rhetoric of the despotic leaders he so admires had elements of farce, it opened a sinister new chapter in his presidency and a challenge to American norms.

. . . .

***************

Read the rest of Stephen’s report at the link.

America’s national nightmare can’t end until Trump and his GOP enablers are removed from office at the ballot box. Just because he’s an incompetent, cowardly, bully doesn’t mean he’s not dangerous. He is!

This November, vote like your life and our nation’s future existence depend on it! Because they do!

PWS

06-02-20

IMMIGRATIONPROF BLOG: Johnson, Olivas, Wadhia on DACA: “DACA will be reminisced as a story about human pain and hope.“

Kevin R. Johnson
Kevin R. Johnson
Dean
UC Davis School of Law
Professor Michael Olivas
Professor Michael Olivas
University of Houston Law Center
Professor Shoba Wadhia
Professor Shoba Wadhia
Penn State Law

https://lawprofessors.typepad.com/immigration/2020/06/the-meaning-of-daca-by-kevin-r-johnson-michael-a-olivas-and-shoba-sivaprasad-wadhia-.html

The Meaning of DACA

By Kevin R. Johnson, Michael A. Olivas, and Shoba Sivaprasad Wadhia 

The Supreme Court will soon release an opinion on the lawfulness of the Trump administration’s choice to end DACA or Deferred Action for Childhood Arrivals (DACA). Former President Barack Obama rolled out DACA in June 2012 and the Department of Homeland Security implemented it two months later through a memorandum signed by then-Secretary Janet Napolitano.

DACA, based on a conventional concept of prosecutorial discretion, provided limited relief from removal – and work authorization — to nearly 800,000 young undocumented immigrants through a discretionary tool called “deferred action.” All legal challenges to DACA, including one by campus immigration hawk former Maricopa County (Arizona) Sheriff Joe Arpaio, failed. How will the story of DACA be remembered?

Much more than the sum of its parts, DACA will be remembered as an intriguing political story. For years, Congress introduced legislation known as the DREAM Act to provide legal status and a pathway to permanent residency for young undocumented college students. Congress has debated some kind of comprehensive immigration reform over two decades. All of these efforts failed. Said President Obama in announcing DACA “In the absence of any immigration action from Congress to fix our broken immigration system, what we’ve tried to do is focus our immigration enforcement resources in the right places.” DACA helped jump start the forceful movement across the nation calling for the vindication of the rights of immigrants.

Politics led to DACA’s demise. Donald J. Trump ran for President on a strident immigration enforcement ticket and promised to end the “unconstitutional” DACA policy. After the inauguration of President Trump and lobbying by some Republican leaders to keep DACA, the administration tried to terminate DACA and announced this “wind-down” in a press conference on September 5, 2017. Ultimately, political slogans, not reasoned analysis, were offered for the decision to end DACA.

The Trump administration’s arguments to the Supreme Court defending the end of DACA were also mired in politics. In a convoluted fashion that wended its way to federal appellate courts from coast to coast, the administration—through a series of Interim leaders—simply ignored the requirements of the Administrative Procedure Act and in an arbitrary and capricious way simply declared that DACA was “illegal,” and that they were required to end it.

The claim that DACA was somehow “illegal” was simply not true. No court found it to be, and for good reason. Deferred action is an instrument of discretion used to shield “low priority” immigrants from deportation. Deferred action enjoys a long history and legal foundation across both Republican and Democratic administrations. The administration could decide to end the policy it, but not by undertaking the judicial role of declaring their own exercise of discretion to be unconstitutional. As it did in the Department of Commerce v. New York (2019) in manufacturing a civil rights rationale for a U.S. citizenship question on the 2020 Census that would have chilled the participation of many Latina/os and immigrants, the administration simply misrepresented facts. The Supreme Court should require the Department of Homeland Security to undertake the searching analysis of facts and policy impacts, and honestly proceed, playing by the rules. Those with DACA have upheld their part of this bargain, and the administration must abide by open and fair procedures required by the law.

DACA will be reminisced as a story about human pain and hope. Said one DACA recipient one author spoke to described September 5, 2017, the day the end of DACA was announced as “just an awful day … Eventually you just get over the pain, get over the fear… and you continue to organize and protect your community in whatever way you can.” Throughout the time DACA has been tossed around in the courts, thousands continue to build families of their own, work in the frontlines of healthcare. and revitalize classrooms in colleges and universities across the country, a phenomenon we have seen first-hand as educators and administrators. DACAmented recipients are now our doctors, lawyers, and schoolteachers, repaying the investment this country has made in them.

If the Supreme Court fails to require the Trump administration to abide by the law, as we urge the Court to insist upon, those with DACA must live under a cruel Sword of Damocles, with no clear pathway to legal permanent residency. They deserve an honest policy determination, and the Supreme Court should insist on no less. Ultimately, it will take Congressional action to enact a DREAM Act, and comprehensive immigration reform to enable these young members a means to their rightful place in our society.

—–

Kevin R. Johnson is Dean of the University of California, Davis School of Law and Mabie/Apallas Professor of Public Interest Law and Chicanx Studies.

Michael A. Olivas is William B. Bates Distinguished Chair of Law, Emeritus, at the University of Houston Law Center and the author of Perchance to DREAM: A Legal and Political History of The DREAM Act and DACA.

Shoba Sivaprasad Wadhia is Samuel Weiss Faculty Scholar, Founding Director of the Center for Immigrants’ Rights Clinic at Penn State Law in University Park, and the author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases and Banned: Immigration Enforcement in the Time of Trump.

******************

I’ll be more blunt. 

The Administration’s legal arguments for ending DACA have always been bogus and totally disingenuous. Indeed, they do not even remain the same from case to case as they essentially make it up as they go along. It’s all transparently about White Nationalist racism and political pandering to a right-wing minority. 

The lower Federal Courts were nearly unanimous in rejecting the DOJ’s various bad faith positions. Yet, instead of unanimously blasting the Administration’s frivolous request for intervention out of hand and sending a clear message reaffirming the lower courts, the Supremes granted an audience to Francisco and the scofflaws. 

By failing to send a clear message that political pandering at the expense of human lives won’t be tolerated, the Supremes have encouraged further lawless, insidiously-motivated acts by Trump and have become part of the problem. They have also unconscionably undermined lower Federal Court judges who stood up for the rule of law and removal of racism and dehumanization from government decision-making.

Among other things, the Supremes have helped Trump: eradicate 40 years of asylum protections without legislation; weaponize the public charge provisions without legislation to endanger the health an safety of immigrants and our nation; allowed invidious discrimination against Muslims and refugees; and forced individuals who have established reasonable fear of persecution to be sent to live in life-threatening squalor and danger in Mexico. 

The Supremes’ majority has knowingly and intentionally furthered the “Dred-Scottification” of “the other” in society: African-Americans, Latinos, immigrants, asylum seekers, the poor, women, prisoners, workers, etc. Our nation is paying the price.

The solution eventually will require a re-examination of the type of individuals to whom we give the high privilege of serving on the Supremes: their humanity, courage, practical experience, empathy, moral leadership, problem-solving ability, expertise in furthering human rights, and commitment to equal justice for all, rather than narrow “out of the mainstream” political ideologies. The current outrage and unrest over the lack of social justice in the United States can be tied directly to the Supremes’ lack of leadership, courage, humanity, and an overriding commitment to equal justice under law. This version of the Supremes has failed America. Badly!  We must do better in the future!

Due Process Forever!

PWS

06-01-20

WASHPOST EDITORIAL BOARD:  TRUMP IS “EXACTLY THE WRONG LEADER FOR OUR TIMES” — “The right message would combine an insistence on keeping protest peaceful with assurances that justice will be done in Mr. Floyd’s death and a recognition that righting deeper wrongs is an urgent priority. That message will not come from a White House that has used racial hatred as a wedge and repeatedly made clear its contempt for urban America.”🤮

https://www.washingtonpost.com/opinions/as-cities-burn-trumps-bullhorn-drowns-out-the-voices-of-our-better-angels/2020/05/31/97a259e8-a367-11ea-bb20-ebf0921f3bbd_story.html

☠️☠️☠️☠️☠️

As cities burn, Trump’s bullhorn drowns out the voices of our better angels

AS BUILDINGS and businesses burn in many cities across America, state and local officials and community leaders are desperately and at times bravely saluting the justifiable moral outrage of peaceful protesters while seeking to ensure that looters and hooligans whose only agenda is mayhem do not irreparably sully the cause. Meanwhile, President Trump, whose words could matter most, plays his customary role as human flamethrower: exactly the wrong leader for the times.

No magic elixir could extinguish the rage overnight, nor ensure that the fury over George Floyd’s brutal killing in Minneapolis is channeled in a constructive direction. But this much is certain: Words matter, and a commitment to reform matters. Some leaders are trying to deliver both. They recognize the challenges of systemic injustice; the pattern of brutality suffered by African Americans at the hands of white officers; the racism manifested in so many ways, including unequal rates of imprisonment and, now, unequal suffering from the novel coronavirus, both medically and economically.

Meanwhile, Mr. Trump, the divider in chief, fulminates as the nation burns. He does not counsel restraint; nor issue appeals for unity, nor acknowledge the roots and reasons for the fury of black Americans who see white men in uniform as threats to their lives. To his administration, there is no systemic challenge, only “a few bad apples” among police, as Robert C. O’Brien, national security adviser, said Sunday. Even as police train their weapons on journalists doing their jobs by covering the unrest, Mr. Trump attacks the media. As the president vents — warning that “the most ominous weapons” and “the most vicious dogs” would be unleashed on protesters; threatening to deploy the active-duty military; attacking Democrats; relishing the Secret Service’s readiness for “action”; suggesting he may summon his MAGA supporters to the streets — the country’s more emollient voices are muffled.

Live updates on Minneapolis

Wanton destruction, looting and firebombing are unacceptable and unjustified no matter what the provocation, as Rep. John Lewis (D-Ga.) said on Saturday. Responsible leaders are trying to send that message. But against the president’s bullhorn, it becomes harder to hear leaders like Atlanta Mayor Keisha Lance Bottoms, whose anger at destructive rioters in her city was tempered by a heartfelt appeal. “We are better than this as a city, we are better than this as a country,” she said. “Go home. Go home!” It becomes more difficult to focus on the message of Minnesota Gov. Tim Walz (D), who tweeted, “Minnesota consistently ranks highly for our public schools, innovation and opportunity, and happiness – if you’re white. If you’re not, the opposite is true. Systemic racism must be addressed if we are to secure justice, peace, and order for all Minnesotans.”

So much depends right now on moral authority, yet so little of it can break through the chaos of events and the venomous soundtrack from Washington. The right message would combine an insistence on keeping protest peaceful with assurances that justice will be done in Mr. Floyd’s death and a recognition that righting deeper wrongs is an urgent priority. That message will not come from a White House that has used racial hatred as a wedge and repeatedly made clear its contempt for urban America. It is left to other leaders to try to break through the mayhem of the moment, and give voice to our better angels.

**********************

Trump, already the worst President in U.S. history, has been a clear and present danger to the welfare, security, and continued existence of our nation since he took office. 

His malicious incompetence, corruption, ignorance, racism, meanness, and lack of humanity are now on full display. Trump and his band of grifters, White Nationalists, toadies, and incompetents are a big part of the problem, not the solution!

Indeed, we can’t even get a constructive start on solving the problems of institutional racism, inequality, and failure to take equal justice for all as a serious goal with Trump in office. For example, Trump and the GOP have it very clear that they have the intent and a variety of schemes to suppress African-American and Hispanic-American voting and voting power this November — so far, with no meaningful pushback from the Supremes.

Still, we “are where we are” today because those institutions with a responsibility and the authority to curb his abuses, hold him accountable for his racism and dishonesty, and enforce our Constitution, namely, the U.S. Senate, the Supreme Court, and the GOP have failed to do so. Beyond that, on many occasions they have actually encouraged and joined in his misdeeds.

This November, vote like your life depends on it.  Because it does!

PWS

05-31-20

COURTSIDE HISTORY: ANNIKA NEKLASON @ THE ATLANTIC: How White Supremacist Conspiracy Theories Fueled The Civil War & Continue To Divide & Endanger America!🏴‍☠️☠️

Annika Neklason
Annika Neklason
Assistant Editor
The Atlantic

https://www.theatlantic.com/politics/archive/2020/05/conspiracy-theories-civil-war/612283/

The Conspiracy Theories That Fueled the Civil War

The most powerful people and institutions in the South spread paranoia and fear to protect slavery. Their beliefs led the country to war—and continue to haunt our politics to this day.

Annika Neklason is an assistant editor at The Atlantic.May 29, 2020

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Photo-illustration by Damon Davis

In the months leading up to the Civil War, fear festered in southern living rooms and legislative chambers. Newspapers reported that the newly elected president, Abraham Lincoln, held a “hatred of the South and its institutions [that would] cause him to use all the power at hand to destroy our country” and that his vice president, Hannibal Hamlin, was not only sympathetic to the plight of black Americans but was himself part black—“what we call,” the editor of one Charleston, South Carolina, paper stated, “a mulatto.” Warnings circulated in pamphlets and the press that an antislavery federal government would inspire a wave of violent slave revolts and then allow the South to burn, rather than stepping in to quell resistance. Texas’s declaration of secession asserted that northern abolitionists had for decades been sending “emissaries” to “bring blood and carnage to our firesides.” Georgia’s insisted that the “avowed purpose” of Republican leaders was to “subvert our society and subject us not only to the loss of our property but the destruction of ourselves, our wives, and our children, and the desolation of our homes [and] our altars.”

These claims were not relegated to the fringes of southern society; they emanated from its center. The most powerful people and institutions in the region voiced and acted upon them as fact. But they were unfounded: conspiracy theories, born of white supremacy and the desire to justify and maintain slavery. Even as they helped shield the antebellum South against the rising abolitionism in the North and in other countries, these theories deepened sectional divisions and made the question of slavery all but impossible to settle peacefully. They helped fuel the deadliest war in the nation’s history. And their violent legacy has lingered across centuries.

The lies might not have spread so far or engendered so much violence if not for the real threat, and the real fear, that they tapped into. There was no great sectional war planned to root out slavery in the South, no plot among Lincoln’s allies to execute a mass murder of slaveholders and their families. But there were slave revolts. And those slave revolts could become deadly. In the Caribbean, a series of mass rebellions broke out in the 18th and early 19th centuries. The most successful of these, the Haitian Revolution, forged a new free state out of a bloody conflict that killed tens of thousands of Europeans and white colonists, along with more than 100,000 slaves and freedmen. In the United States, where slaves remained a minority of southern state populations, violent uprisings were more limited, but still occurred: Individual slaves lashed out; groups of fugitives fought off slave catchers; and, every so often, an organized rebellion was planned.

These uprisings contradicted the narratives that southern slaveholders had constructed. In their telling, slaves were well cared for and content, provided with a better life than they could ever build for themselves in freedom—a life that would give them no good reason to turn on their owners.

To square this defense of slavery with the threat of resistance, southern slaveowners “over time shifted toward a more conspiratorial view,” Matthew J. Clavin, an American- and Atlantic-history professor at the University of Houston, told me. “Slaveowners blamed outsiders. Or they blamed free black people. Or they blamed foreign emissaries from London [for] trying to incite their slaves to rebel.”

Writing in The Atlantic in 1861 about the free black man Denmark Vesey’s thwarted plans to lead an uprising in Charleston, the abolitionist Thomas Wentworth Higginson noted that the first official report on the revolt considered a range of possible motivations for the rebels—including “Congressional eloquence,” “a Church squabble,” and “mistaken indulgences”—but not that slavery itself might be to blame. “It never seems to occur to any of these spectators,” Higginson observed, “that these people rebelled simply because they were slaves and wished to be free.”

Abolitionists were a favorite boogeyman in slaveholders’ stories. Antislavery pamphlets and speeches were also cited in reports about Vesey’s plans as a “means for inflaming the minds of the colored population” and instigating rebellion.

Such accusations were common in the first half of the 19th century, Clavin noted. “There would be episodes of a slave burning a slave owner’s house to the ground or slitting an overseer’s throat,” he said. “And there would be a wealthy abolitionist from New York City who would give a speech, and the speech didn’t incite violence, didn’t encourage anyone to run away, but six months later, southerners would be blaming that northern orator for causing the slave disturbance. It really [was] just an unbelievable ignorance of the facts used to create a community-wide response that was anti-abolitionist.”

John Brown’s attempt to start a mass slave rebellion in Virginia in 1859 seemed to confirm these sentiments. Brown was like a character straight out of a conspiracy theory: a white abolitionist who intended to arm slaves and turn them against their owners with the backing of a secretive network of antislavery supporters in New England (one of whom laid out the conspiracy in detail in The Atlantic years later).

For southerners, the John Brown rebellion “lent credence to that conspiratorial thinking that The abolitionists are coming, that Abolitionists are out to get us, that Abolitionists are encouraging slave revolts,” Clavin said. But Brown’s raid was, in reality, “an absolute anomaly. Very few, if any, abolitionists, black or white, were literally willing to start a slave insurrection themselves.”

And slaveholders knew it. “They overstated the threat from abolitionists,” Clavin said. “They did that on purpose, because it served their intellectual needs”—allowing them to unite the South against a common enemy and to defend the narrative that slaves were docile and content.

At the same time, slaveholders worked to further unite the white South in fear of rebellion by circulating the “diametrically opposed image” of enslaved people as innately violent and dangerous, Manisha Sinha, an American-history professor at the University of Connecticut and the author of The Slave’s Cause: A History of Abolition, told me. The revolutionaries in Haiti, for example, were portrayed not as “freedom fighters, but as barbaric people who descended into completely chaotic violence for violence’s sake,” she said.

The abolitionist John Weiss detailed how the revolution was transformed into a scary story for southerners—commonly called “the Horrors of San Domingo”—in an 1862 article for The Atlantic. “The Haytian bugbear” had been wielded by pro-slavery forces “to render anti-slavery sentiment odious” and “to defeat the great act of justice and the people’s great necessity” of emancipation, he wrote.

The specter of mass uprising spread “both in public and private narratives,” Sinha said. Southerners grew to fear that “at the moment of emancipation” slaves “were going to wage a huge Haitian Revolution–like rebellion that would kill all whites and establish ‘black supremacy,’” or that they “were just going to rise up, rape all white women, and that would be the end of whiteness.”

These conspiracy theories made an existential threat out of emancipation, and insidious enemies out of northern antislavery forces. Eventually, they became so powerful that southern leaders decided to break from the Union and launch the Civil War. Their racist defenses of slavery could not admit the possibility of a peaceable emancipation such as the one that Lincoln and northern abolitionists actually sought. So after decades of preaching that abolition would mean sweeping violence, southern leaders brought that violence on themselves—and hastened the end of slavery in the process.

Slavery was, however, survived by the racist fears intended to protect it. Sinha traced their legacy through generations of murder, incarceration, and exclusion, from the “regime of racial terror” in the postwar South to the restrictive immigration laws of the late 19th and early 20th centuries, all the way up to the “authoritarian mindsets, conspiratorial ways of thinking, and demonization of the other” that continue to pervade American politics in the present day. The belief in abolitionist terror and black violence that southern slaveholders had constructed, she explained, made the prospect of “a republic of equal citizens” feel like an existential threat not only to the culture of white supremacy but to all the white people who lived in it. The groups of people embodying the threat have changed and expanded over time: from slaves to Asian immigrants to civil-rights activists to Muslim Americans. But the fear has never entirely gone away. Through the lens of that fear, racist violence, such as that practiced by the Ku Klux Klan, and laws, such as voting restrictions or Donald Trump’s “Muslim ban,” have been reframed as protective measures. Conspiratorial vigilance and authoritarianism become shields against an imagined revolution.

. . . . 

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Read the rest of Annika’s article at the link.

Clearly, Donald Trump did not originate the concept of “fake news,” nor did he invent internet conspiracy theories. But, he, his cronies, and his enablers have become experts in exploiting it for their own selfish purposes: From the absurdist, yet dangerous and divisive, “birtherism” to today’s disingenuous attempts to shift blame for the racism that has spawned disorder throughout our nation.

This November, vote like your life depends on it. Because it does!

PWS

05-31-20

🗽⚖️A VOICE FOR THE TIMES: Rep. James Clyburn (D-SC), Interviewed by Vanity Fair’s Chris Smith — “My vision comes from the pledge of allegiance: liberty and justice for all. That remains a vision—but we’re not doing much to make that vision a reality. Mitch McConnell goes on the floor of the Senate and calls me out, as if there’s something nasty about my vision. He never asked me what my vision was.”

Rep. James Clyburn (D-SC)
Rep. James Clyburn
D-SC
Chris Smith
Chris Smith
Writer
Vanity Fair

https://www.vanityfair.com/news/2020/05/james-clyburn-on-the-floyd-killing-and-the-role-of-race-in-the-coming-election?utm_source=nl&utm_brand=vf&utm_mailing=VF_HivePS_053020&utm_medium=email&bxid=5bd67c363f92a41245df49eb&cndid=48297443&hasha=8a1f473740b253d8fa4c23b066722737&hashb=26cd42536544e247751ec74095d9cedc67e77edb&hashc=eb7798068820f2944081a20180a0d3a94e025b4a93ea9ae77c7bbe00367c46ef&esrc=newsletteroverlay&utm_campaign=VF_HivePS_053020&utm_term=VYF_Hive

“At Some Point the Country Is Going to Have to Wake Up”: James Clyburn on the Floyd Killing and The Role of Race In The Coming Election

Chris SmithMay 29, 2020

Clyburn, who helped hand Biden his presumptive nomination, talks about Biden’s “you ain’t black” and V.P. possibilities, and why this moment is defined by “raw politics and meanness.”

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by Stephen Maturen/Getty Images.

James Clyburn grew up in a segregated South Carolina. He is now the longest-serving member of the state’s congressional delegation and the highest-ranking black Democrat in the House. In February, Clyburn basically saved Joe Biden’s presidential bid, endorsing Biden three days before South Carolina’s pivotal primary and helping deliver the decisive black vote. On Thursday evening, just after landing in his home state for a weekend visit, the 79-year-old Clyburn talked about holding on to his optimism in the wake of yet another brutal killing of a black man by police.

Vanity Fair: What was your reaction when you saw the video of a Minneapolis cop kneeling on the neck of George Floyd?

James Clyburn: I don’t know that I would describe my emotion as anger. I guess I should be angry. Maybe at my age, and as many of these kinds of things as I’ve experienced, you get to the point where you say, but for the video, I would not have seen it; other people would not have seen it; and the official word would be all anyone knew. I do feel, though, that at some point the country is going to have to wake up to this reality.

What do you tell black Americans, particularly young black male Americans, who say the country is long past the point when it should have awakened, and that the reality is just racism and hatred?

Going back to the student movement and the civil rights movement, I’ve really questioned many times whether or not what we were doing made any real sense. Whether there was any possibility of success. But along with people like John Lewis, who I met in October 1960, he’s held on to his faith in the country, and I’ve held on to mine. I went to jail several times. I ran for office three times before I got elected. You don’t give up. You aren’t going to win by giving up.

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by Salwan Georges/The Washington Post via Getty Images.

The four Minneapolis police officers have been fired. Should they be tried for murder?

They certainly should stand trial. The hand of one is the hand of all, so four people need to be on trial.

In a conference call with House leaders two days after Floyd’s death, you talked about it being a symptom of larger problems that plague minority communities, and that it showed the need for systemic change. What did you mean?

I have been saying for a long time now that so much in this country needs to be restructured. Health care, education, the judicial system. Every time these issues are raised, folks on the Republican side find a way to parse the words and turn it to their agenda, and they get accommodated by too many people in the media. When we first started discussing the CARES Act, I said to my caucus, in a Zoom call, that this was a tremendous opportunity for us to restructure things in our vision. My vision comes from the pledge of allegiance: liberty and justice for all. That remains a vision—but we’re not doing much to make that vision a reality. Mitch McConnell goes on the floor of the Senate and calls me out, as if there’s something nasty about my vision. He never asked me what my vision was. I’ve got it on billboards all over Charleston: “Making America’s Greatness Accessible and Affordable for All.” What’s wrong with that? And that’s been weaponized by the other side as something untoward. It’s ideology, it’s raw politics, and meanness. That’s why we can’t fix these things.

Do you think the Floyd killing will end Minnesota senator Amy Klobuchar’s chances of being picked as Joe Biden’s running mate?

It certainly won’t help. But it’s not just this. Her history with similar situations when she was a prosecutor came up time and again during the campaign. I suspect this incident plays into that.

You said you cringed when Biden told a radio host, “If you have a problem figuring out whether you’re for me or for Trump, then you ain’t black.”

I compare Joe Biden to the alternative, not the Almighty. One of the things I learned early in this business is that one of the worst things you can do in politics is to make a joke out of any serious matter. He would have been better off not doing that.

Senator Tim Scott, a Republican from South Carolina who happens to be black, said that Biden’s remark showed him to be “condescending and arrogant.”

I’ve known Joe Biden for a long, long time. I don’t perceive anything about him to be arrogant. Tim Scott supports [Donald] Trump, and I don’t. If he can reconcile his blackness with Trump, that’s fine. I can’t reconcile mine with Trump. I’ll never ever accept the president of the United States looking into a camera and calling a black woman a dog. I will never get over that. Nothing else he says will matter to me. And he said that not about one of his opponents—that was about one of his staffers! Who supported him! I have three daughters, and I know how I’d feel about any man calling one of them a dog.

With his attacks on former president Barack Obama, among other things, it’s clear that Trump is going to play the race card in his reelection campaign. Do you worry about the tensions becoming dangerous, or is it better to have the issue out in the open?

I think we’re in much better shape for it to be out in the open than for it to be hidden under a bushel. That’s what happened in 2016. The whole thing about African American males responding to Trump saying, “What do you have to lose?” I know from my visits to barber shops that it resonated. But if you fool me once, that’s on you. If you fool me twice, that’s on me. If black men allow themselves to be fooled twice, it’s on them. Four years later, if it ain’t clear what they have to lose, if they can’t count up their losses with Trump, ask them to ask me.

You have said that it isn’t “a must” for Biden to pick a black woman as the vice presidential nominee. Why not?

I remember Sarah Palin. She was fine until it turned out the vetting hadn’t been thoroughly done. I remember Geraldine Ferraro. She was fine. It was her husband that got exposed during the campaign. So if I say it’s a must and something turns up in the vetting, what does that make me? I’m never going to say it’s a must for him to choose a black woman. It would be a plus.

Are you confident that black turnout will be high enough to win no matter whom Biden chooses?

I don’t know about that. Black voters are incentivized already. You can always stimulate the vote. There are picks that could energize the vote.

If Biden said, “Jim, I’ll choose whomever you want,” what would say?

I’m not gonna tell you! But I would tell him.

There’s a tremendous amount of outrage right now about the George Floyd and the Ahmaud Arbery killings. But unfortunately, we’ve seen this cycle many times before, where attention fades after a few weeks.

I think something’s going to be different about this. After the Minneapolis killing, I saw the Minnesota attorney general on TV. For the first time in the state’s history, that attorney general is African American. Also Muslim. That, to me, helps set this whole issue on a different plane. Minneapolis had issues with the former mayor and the police. This mayor says he’s calling for these men to be indicted. To me, that’s progress in something all of us need to work on. You can’t take these things in silos. I’m a history guy. I’ve been studying this country’s history pretty much all my life. It’s pretty sordid in some areas. But that history ought to inform us. Everybody’s not going to learn the lessons. The ones who learn, you hope they change the world.

******************

Our country can’t get to the better future we need with horrible, unqualified, bigoted leaders like Trump, Pence, Mitch, et al.

One of the most unhelpful of our failed institutions: A Supreme Court that has abandoned the courageous heritage of Brown v. Board of Education and instead encouraged, embraced, aided, and abetted the “Dred Scottification of the other” by a corrupt, bigoted, racist, overtly White Nationalist Executive and his equally corrupt cronies and toadies. 

This November, vote like your life depends on it. Because it does!

PWS

05-31-20

⚖️👍🏼🗽DUE PROCESS VICTORY: US District Judge Requires Baltimore Immigration Court to Comply With Due Process in Bond Hearings! — Round Table Warrior Judge Denise Noonan Slavin Provides Key Evidence! — Miranda v. Barr!

Miranda v. Barr, U.S.D.C. D. MD., U.S. District Judge Catherine C. Blake, 05-29-20

Preliminary Injunction Memo

KEY QUOTES:

. . . .

A. Likelihood of success on the merits

i. Due process claim: burden of proof

The lead plaintiffs claim that Fifth Amendment due process entitles them, and all members of the proposed class, to a bond hearing where the government bears the burden of proving, by clear and convincing evidence, dangerousness or risk of flight. As explained above, neither the INA nor its implementing regulations speak to the burden of proof at § 1226(a) bond hearings, and the BIA has held that the burden lies with the noncitizen. See Guerra, 24 I. & N. Dec. at 37, 40. But, as the lead plaintiffs point out, when faced with challenges to the constitutionality of these hearings, district courts in the First, Second, Ninth, and Tenth Circuits have concluded that due process requires that the government bear the burden of justifying a noncitizen’s § 1226(a) detention. See, e.g., Singh v. Barr, 400 F. Supp. 3d 1005, 1017 (S.D. Cal. 2019) (“[T]he Fifth Amendment’s Due Process Clause requires the Government to bear the burden of proving . . . that continued detention is justified at a § 1226(a) bond redetermination hearing.”); Diaz-Ceja v. McAleenan, No. 19-CV-00824-NYW, 2019 WL 2774211, at *11 (D. Colo. July 2, 2019) (same); Darko v. Sessions, 342 F. Supp. 3d 429, 436 (S.D.N.Y. 2018) (same); Pensamiento, 315 F. Supp. 3d at 692 (same). While jurisdictions vary on the standard of proof required, compare, e.g., Darko, 342 F. Supp. 3d at 436 (clear and convincing standard) with Pensamiento, 315 F. Supp. 3d at 693 (“to the satisfaction of the IJ” standard), the “consensus view” is that due process requires that the burden lie with the government, see Darko, 342 F. Supp. 3d at 435 (collecting cases).

The defendants concede that “a growing chorus of district courts” have concluded that due process requires that the government bear the burden of proof at § 1226(a) bond hearings. (Opp’n at 22). But the defendants also point out that some courts to consider the issue have

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concluded otherwise. In Borbot v. Warden Hudson Cty. Corr. Facility, the Third Circuit analyzed a § 1226(a) detainee’s claim that due process entitled him to a second bond hearing where “[t]he duration of [] detention [was] the sole basis for [the] due process challenge.” 906 F.3d 274, 276 (3d Cir. 2018). The Borbot court noted that the detainee “[did] not challenge the adequacy of his initial bond hearing,” id. at 276–77, and ultimately held that it “need not decide when, if ever, the Due Process Clause might entitle an alien detained under § 1226(a) to a new bond hearing,” id. at 280. But, in analyzing the detainee’s claims, the Borbot court stated that it “perceive[d] no problem” with requiring that § 1226(a) detainees bear the burden of proof at bond hearings. Id. at 279. Several district courts in the Third Circuit have subsequently concluded that Borbot compels a finding that due process does not require that the government bear the burden of proof at § 1226(a) bond hearings. See, e.g., Gomez v. Barr, No. 1:19-CV- 01818, 2020 WL 1504735, at *3 (M.D. Pa. Mar. 30, 2020) (collecting cases).

Based on its survey of the case law, the court is more persuaded by the reasoning of the district courts in the First, Second, Ninth, and Tenth Circuits. “Freedom from imprisonment— from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Fifth Amendment’s Due Process] Clause protects.” Zadvydas, 533 U.S. at 690 (citation omitted). While detention pending removal is “a constitutionally valid aspect of the deportation process,” such detention must comport with due process. See Demore v. Kim, 538 U.S. 510, 523 (2003). Although the Supreme Court has not decided the proper allocation of the burden of proof in § 1226(a) bond hearings, it has held, in other civil commitment contexts, that “the individual’s interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.” See Addington v. Texas, 441 U.S. 418, 427 (1979)

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(addressing the standard of proof required for mental illness-based civil commitment) (emphasis added).

Application of the Mathews v. Eldridge balancing test lends further support to the lead plaintiffs’ contention that due process requires a bond hearing where the government bears the burden of proof. In Mathews, the Supreme Court held that “identification of the specific dictates of due process generally requires consideration of three distinct factors”: (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. 319, 335 (1976). While the court acknowledges that requiring the government to bear the burden of proof at § 1226(a) hearings would impose additional costs on the government, those costs are likely outweighed by the noncitizen’s significant interest in freedom from restraint, and the fact that erroneous deprivations of liberty are less likely when the government, rather than the noncitizen, bears the burden of proof. (See Decl. of Former Immigration Judge Denise Noonan Slavin ¶ 6, ECF 1-8 (“On numerous occasions, pro se individuals appeared before me for custody hearings without understanding what was required to meet their burden of proof. . . . Pro se individuals were rarely prepared to present evidence at the first custody hearing[.]”))

With respect to the quantum of proof required at § 1226(a) bond hearings, the court notes that “the overwhelming majority of district courts have . . . held that, in bond hearings under § 1226(a), due process requires the government to bear the burden of justifying detention by clear and convincing evidence.” Hernandez-Lara v. Immigration & Customs Enf’t, Acting Dir., No.

17

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19-CV-394-LM, 2019 WL 3340697, at *3 (D.N.H. July 25, 2019) (collecting cases). As the Hernandez-Lara court reasoned, “[p]lacing the burden of proof on the government at a § 1226(a) hearing to show by clear and convincing evidence that the noncriminal alien should be detained pending completion of deportation proceedings is more faithful to Addington and other civil commitment cases,” id. at *6, “[b]ecause it is improper to ask the individual to ‘share equally with society the risk of error when the possible injury to the individual’—deprivation of liberty—is so significant,” id. (quoting Singh v. Holder, 638 F.3d 1196, 1203–04 (9th Cir. 2011)) (further citation omitted).

Moreover, on the quantum of proof question, the court finds instructive evolving jurisprudence on challenges to prolonged detention pursuant to 8 U.S.C. § 1226(c). As noted in note 2, supra, § 1226(c) mandates detention of noncitizens deemed deportable because of their convictions for certain crimes. See Jennings, 138 S. Ct. at 846. Although § 1226(c) “does not on its face limit the length of the detention it authorizes,” id., the Supreme Court has not foreclosed the possibility that unreasonably prolonged detention under § 1226(c) violates due process, id. at 851. Indeed, many courts have held that when § 1226(c) becomes unreasonably prolonged, a detainee must be afforded a bond hearing. See, e.g., Reid v. Donelan, 390 F. Supp. 3d 201, 215 (D. Mass. 2019); Portillo v. Hott, 322 F. Supp. 3d 698, 709 (E.D. Va. 2018); Jarpa, 211 F. Supp. 3d at 717. Notably, courts in this district and elsewhere have ordered § 1226(c) bond hearings where the government bears the burden of justifying continued detention by clear and convincing evidence. See Duncan v. Kavanagh, — F. Supp. 3d —-, 2020 WL 619173, at *10 (D. Md. Feb. 10, 2020); Reid, 390 F. Supp. 3d at 228; Portillo, 322 F. Supp. 3d at 709–10; Jarpa, 211 F. Supp. 3d at 721. As the Jarpa court explained, “against the backdrop of well-settled jurisprudence on the quantum and burden of proof required to pass constitutional muster in civil detention

18

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proceedings generally, it makes little sense to give Mr. Jarpa at this stage fewer procedural protections than those provided to” civil detainees in other contexts. See Jarpa, 211 F. Supp. 3d at 722 (citing United States v. Comstock, 627 F.3d 513 (4th Cir. 2010)).

In light of the above, the court is satisfied that the lead plaintiffs have shown a likelihood of success on the merits of their claim that due process requires § 1226(a) bond hearings where the government must bear the burden of proving dangerousness or risk of flight. As to the quantum of proof required at these hearings, the court is persuaded that requiring a clear and convincing standard is in line with the Supreme Court’s reasoning in Addington, as well as consistent with the bond hearings ordered in cases involving § 1226(c) detention.

ii. Due process claim: ability to pay and suitability for release on alternative conditions of release

The lead plaintiffs also claim that Fifth Amendment due process entitles them, and all members of the proposed class, to a bond hearing where the IJ considers the noncitizen’s ability to pay a set bond amount and her suitability for release on alternative conditions of supervision. The defendants counter that due process does not so require, and also asserts that at Mr. de la Cruz Espinoza’s bond hearing, the IJ did consider his ability to pay, (Opp’n at 26).

As an initial matter, the court considers whether the IJ at Mr. de la Cruz Espinoza’s bond hearing considered his ability to pay. According to the Complaint, there is no requirement that IJs in Baltimore Immigration Court consider an individual’s ability to pay when setting a bond amount. (Compl. ¶ 27 & n.8). The defendants assert that because Mr. de la Cruz Espinoza’s motion for bond included arguments about his financial situation, the IJ did, in fact, consider his ability to pay. (Opp’n at 26). The court is not persuaded. The fact that an argument was raised does not ipso facto mean it was considered. Neither the transcript of Mr. de la Cruz Espinoza’s bond hearing, (ECF 15-11), nor the IJ’s order of bond, (ECF 1-18), suggest that the IJ actually

19

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considered ability to pay. Accordingly, without clear evidence to the contrary, the court accepts the lead plaintiffs’ allegation that the IJ did not consider Mr. de la Cruz Espinoza’s ability to pay when setting bond.

The question remains whether due process requires that an IJ consider ability to pay and suitability for alternative conditions of release at a § 1226(a) bond hearing. As explained above, detention pending removal must comport with due process. See Demore, 538 U.S. at 523. Due process requires that detention “bear[s] [a] reasonable relation to the purpose for which the individual [was] committed.” See Zadvydas, 533 U.S. at 690 (quoting Jackson v. Indiana, 406 U.S. 715, 738 (1972)). Federal regulations and BIA decisional law suggest that the purpose of § 1226(a) detention is to protect the public and to ensure the noncitizen’s appearance at future proceedings. See 8 C.F.R. §§ 1003.19, 1236.1; Guerra, 24 I. & N. Dec. at 38. But, the lead plaintiffs argue, when IJs are not required to consider ability to pay or alternative conditions of release, a noncitizen otherwise eligible for release may end up detained solely because of her financial circumstances.

Several courts to consider the question have concluded that § 1226(a) detention resulting from a prohibitively high bond amount is not reasonably related to the purposes of § 1226(a). In Hernandez v. Sessions, the Ninth Circuit held that “consideration of the detainees’ financial circumstances, as well as of possible alternative release conditions, [is] necessary to ensure that the conditions of their release will be reasonably related to the governmental interest in ensuring their appearance at future hearings[.]” See 872 F.3d at 990–91. While the Hernandez court did not explicitly conclude that a bond hearing without those considerations violates due process, see id. at 991 (“due process likely requires consideration of financial circumstances and alternative conditions of release” (emphasis added)), the court in Brito did reach that conclusion, see 415 F.

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Supp. 3d at 267. The Brito court held that, with respect to § 1226(a) bond hearings, “due process requires an immigration court consider both an alien’s ability to pay in setting the bond amount and alternative conditions of release, such as GPS monitoring, that reasonably assure the safety of the community and the alien’s future appearances.” Id. at 267. Relatedly, in Abdi v. Nielsen, 287 F. Supp. 3d 327 (W.D.N.Y. 2018), which involved noncitizens held in civil immigration

9

detentionpursuantto8U.S.C.§1225(b), thecourt—relyingontheNinthCircuit’sreasoningin

Hernandez—held that “an IJ must consider ability to pay and alternative conditions of release in setting bond for an individual detained under § 1225(b).” Id. at 338. To hold otherwise, the Abdi court reasoned, would implicate “the due process concerns discussed in Hernandez, which are equally applicable to detentions pursuant to § 1225(b).”10

The court is persuaded by the reasoning of Hernandez, Brito, and Abdi. If an IJ does not make a finding of dangerousness or substantial risk of flight requiring detention without bond (as in Mr. de la Cruz Espinoza’s case), the only remaining purpose of § 1226(a) detention is to

11

that an individual may not be imprisoned “solely because of his lack of financial resources.” See

9 8 U.S.C. § 1225(b) authorizes indefinite, mandatory detention for certain classes of noncitizens. See Jennings, 138 S. Ct. at 842 (citing 8 U.S.C. §§ 1225(b)(1) and (b)(2)).

10 The court notes that both Hernandez and Abdi reference now-invalidated precedent in both the Ninth and Second Circuits requiring the government to provide civil immigration detainees periodic bond hearings every six months. See Rodriguez v. Robbins, 804 F.3d 1060, 1089 (9th Cir. 2015), abrogated by Jennings, 138 S. Ct. at 852; Lora v. Shanahan, 804 F.3d 601, 616 (2d Cir. 2015), abrogated by Jennings, 138 S. Ct. at 852. But Jennings, which was decided on statutory interpretation grounds, explicitly did not include a constitutional holding. See Jennings, 138 S. Ct. at 851 (“[W]e do not reach th[e] [constitutional] arguments.”). And, as the Hernandez court noted, “the Supreme Court’s review of our holding . . . that noncitizens are entitled to certain unrelated additional procedural protections during the recurring bond hearings after prolonged detention does not affect our consideration of the lesser constitutional procedural protections sought at the initial bond hearings in this case.” 872 F.3d at 983 n.8.

11 The defendants offer no purpose for § 1226(a) detention beyond protecting the community and securing a noncitizen’s appearance at future proceedings.

The set bond amount, then, must be reasonably related to this purpose. But where a bond amount is set too high for an individual to pay, she is effectively detained without bond due to her financial circumstances. It is axiomatic

secure a noncitizen’s appearance at future proceeding.

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Bearden v. Georgia, 461 U.S. 660, 661–62, 665 (1983) (automatic revocation of probation for inability to pay a fine, without considering whether efforts had been made to pay the fine, violated due process and equal protection); cf. Tate v. Short, 401 U.S. 395, 398 (1971) (“The Constitution[’s equal protection clause] prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.”). In the pretrial detention context, multiple Courts of Appeals have held that deprivation of the accused’s rights “to a greater extent than necessary to assure appearance at trial and security of the jail . . . would be inherently punitive and run afoul of due process requirements.” See Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) (quoting Rhem v. Malcolm, 507 F.2d 333, 336 (2d Cir. 1974)) (quotation marks omitted); accord ODonnell v. Harris Cty., 892 F.3d 147, 157 (5th Cir. 2018); see also Duran v. Elrod, 542 F.2d 998, 999 (7th Cir. 1976); accord Villarreal v. Woodham, 113 F.3d 202, 207 (11th Cir. 1997).

There is no suggestion that the IJs in Baltimore Immigration Court impose prohibitively high bond amounts with the intent of denying release to noncitizens who do not have the means to pay. But without consideration of a § 1226(a) detainee’s ability to pay, where a noncitizen remains detained due to her financial circumstances, the purpose of her detention—the lodestar of the due process analysis—becomes less clear. As the Ninth Circuit explained,

Setting a bond amount without considering financial circumstances or alternative conditions of release undermines the connection between the bond and the legitimate purpose of ensuring the non-citizen’s presence at future hearings. . . . [It is a] common-sense proposition that when the government detains someone based on his or her failure to satisfy a financial obligation, the government cannot reasonably determine if the detention is advancing its purported governmental purpose unless it first considers the individual’s financial circumstances and alternative ways of accomplishing its purpose.

Hernandez, 872 F.3d at 991.

The defendants assert that an IJ need not consider a noncitizen’s ability to pay a set bond

22

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amount because it had a “reasonable basis to enact a statute that grants the Executive branch discretion to set bonds to prevent individuals, whose ‘continuing presence in the country is in violation of the immigration laws,’ from failing to appear,” and that § 1226(a) passes muster under rational basis review. (Opp’n at 25–26 (quoting Reno v. American-Arab Anti- Discrimination Comm., 525 U.S. 471, 491 (1999)). But the appropriate analysis for a procedural due process challenge is the Mathews balancing test, not rational basis review, which is used to analyze equal protection claims, see, e.g., Schweiker v. Wilson, 450 U.S. 221, 234–35 (1981), and substantive due process claims, see, e.g., Hawkins v. Freeman, 195 F.3d 732, 739 (4th Cir. 1999). And, in applying the Mathews test, the court agrees with the Ninth Circuit’s conclusion that “the government’s refusal to require consideration of financial circumstances is impermissible under the Mathews test because the minimal costs to the government of [] a requirement [that ICE and IJs consider financial circumstances and alternative conditions of release] are greatly outweighed by the likely reduction it will effect in unnecessary deprivations of individuals’ physical liberty.” See Hernandez, 872 F.3d at 993.

Accordingly, the court is satisfied that the lead plaintiffs have shown a likelihood of success on the merits of their claim that due process requires a § 1226(a) bond hearing where the IJ considers a noncitizen’s ability to pay a set bond amount and the noncitizen’s suitability for alternative conditions of release.

Y. . . .

*************************

Thanks and congratulations to Judge Denise Slavin for “making a difference.” It’s a true honor to serve with you and our other colleagues in the Round Table of Former Immigration Judges! Judge Slavin’s Declaration is cited by Judge Blake at the end of the first full paragraph above “17” in the quoted excerpt.

fl-undocumented-minors 2 – Judge Denise Slavin, executive vice president of the National Association of Immigration Judges in an immigration courtrrom in Miami. Mike Stocker, Sun Sentinel
Knightess
Knightess of the Round Table

To be brutally honest about it, Denise is exactly the type of scholarly, courageous, due-process-oriented Immigration Judge who in a functioning, merit-based system, focused on “using teamwork and innovation to develop best practices and guarantee fairness and due process for all” would have made an outstanding and deserving Appellate Immigration Judge on the BIA. Instead, in the totally dysfunctional “World of EOIR,” the “best and brightest” judges, like Denise, essentially are “pushed out the door” instead of being honored and given meaningful opportunities to use their exceptional skills to further the cause of justice, establish and reinforce “best judicial practices,” and serve as outstanding role models for others. What an unconscionable waste!

It’s a great decision! The bad news: Because the Immigration Courts remain improperly captive within a scofflaw, anti-immigrant, and anti-due-process DOJ, respondents in many other jurisdictions will continue to be denied the fundamentally fair bond hearings required by Constitutional Due Process.

Due Process Forever!

PWS

05-30-20

CATHERINE RAMPELL @ WASHPOST: Will Trump’s Incompetence Save America From His Maliciousness?

Catherine Rampell
Catherine Rampell
Opinion Columnist
Washington Post

https://www.washingtonpost.com/opinions/trump-is-all-about-deregulation–except-when-it-comes-to-his-enemies/2020/05/28/dcfb9638-a116-11ea-b5c9-570a91917d8d_story.html

Catherine writes:

. . . .

That’s because the pretense was nonsense from the start. Trump’s regulatory agenda was never about helping the economy; it was always about rewarding friends and punishing enemies. White House officials have weaponized the “administrative state” they claim to hate and have repeatedly tried to strangle disfavored groups with regulations and red tape.

Not just Twitter, either.

Arbitrary delays in processing visa applications, for example, have been used to punish immigrants and the companies that employ them. U.S. Citizenship and Immigration Services has rejected visa applications because applicants lack a middle name. It has also waited to mail approved visas until (oops!) after the visas had already expired.

The additional costs and uncertainty these processing changes create for workers and their employers are a feature, not a bug.

Elsewhere, both federal and state officials have ratcheted up bureaucratic hurdles for the poor, as Georgetown University professors Pamela Herd and Donald P. Moynihan have documented.

Right now, for example, states can decide a poor family is automatically eligible for food assistance if the family is enrolled in other means-tested safety-net programs. The Trump administration is trying to block states from doing this, and require more paperwork to prove eligibility. By the administration’s own calculations, this would cause 1 million children to lose their automatic eligibility for free school lunches.

The administration, of course, argues that its regulatory decisions are determined not by Trump’s political whims but by meticulous analysis of what’s best for the economy.Helpfully, a method exists to check their work: the cost-benefits analysis that agencies must produce ahead of major rule changes.

These records show, however, that the administration has repeatedly struggled to prove that its regulatory actions actually increase economic and social welfare.

To get the numbers to work out in its favor, the administration has had to cook the books.

. . . .

The only upside to this slapdash math is that it makes the administration’s most damaging and punitive regulatory changes less likely to hold up in court. Already, the Trump administration has lost more than 90 percent of the legal challenges to its regulatory policies, according to New York University’s Institute for Policy Integrity. By comparison, previous administrations lost only about 30 percent of the time.

“A lot of these losses have been because of the poor quality of the analysis — who’s harmed, who’s helped, by how much,” said Richard Revesz, a law professor who directs the institute.

The only thing that may save us from the administration’s regulatory vindictiveness is its incompetence.

******************

Read the rest of Catherine’s article at the link.

As usual, Catherine’s analysis is “spot on.” My problem is this.

If the same private litigant and his or her lawyers kept presenting Federal Courts with false, misleading, or just plain faked evidence and statistics, the private lawyers likely would be facing discipline or disbarment for failure to provide “candor to a tribunal.” The client would be facing large penalties and likely contempt for continuing to institute or cause frivolous litigation.

Yet, except for occasional “harsh but toothless” language in judicial opinions or a couple of minor fines, Trump, his sycophantic toadies, and his battery of unethical Government lawyers get off scot-free for abusing the Article III Judiciary and our legal and judicial processes. Meanwhile, the private litigants are forced to file the same challenges over and over again in different jurisdictions across the country. In the area of immigration, asylum, and human rights, most of the lawyers are donating their time pro bono, while the unethical Government attorneys and their corrupt clients are on the taxpayer’s dime. 

The occasional Equal Access to Justice Act award against the Government seldom comes close to compensating private lawyers for their actual lost time and lost opportunities. Nor does it deter the Trump regime, because it comes out of “you of the taxpayers’” pocket.

A Federal Judge demands accurate statistics from DHS after private litigants show the last batch was bogus; the DHS merely submits another set of bogus or misleading data, forcing the private litigants to once again have to demonstrate their unreliability. Government officials and their attorneys claim, contrary to fact, that there is no “child separation” policy, but suffer no consequences other than to be told to stop violating the Constitution. Instead of doing that, they “repackage” unconstitutional child separation as a bogus “parental choice.” So, now the private litigants, who have already won once, have to show that the latest iteration of a clearly illegal and contemptuous policy is what it is: unlawful. 

A Federal Judge orders they DHS to make individualized release determinations for detainees held in overcrowded substandard conditions that violate the Government’s own health guidance. Instead of doing that, the DHS merely moves them to another, slightly less crowded facility with equally bad conditions and falsely claims they have “fixed” the problem. Again, the private litigants have to gather new evidence that the move has not materially reduced the health risks to the clients. And so on.

Essentially, the Trump regime and their lawyers are playing a big game of “hide the ball;” every time the private advocates show the Federal Judge where the ball actually is hidden, the Government simply moves it again. And, unfortunately, most Federal Judges give the regime and its ethics-challenged lawyers unlimited “plays” at the expense of the other side. Even when relief is ordered, it just solves the “problem of the moment” rather than halting the pattern of ethical abuses, contemptuous attitudes, and unlawful conduct by the regime and its complicit lawyers.

In effect, the regime has “weaponized” the Federal Courts and the Article III Judiciary in a way not dissimilar from how Sessions and Barr have “weaponized” the Immigration Courts. Turning the Article III Courts into a feckless “runaround” where the individuals and their lawyers “lose even when they win” makes the process punitive and serves as a deterrent to those seeking to challenge the regime’s overtly lawless agenda.

The November election is the chance to throw a scofflaw regime out of office. But, the deep-seated institutional and integrity problems of an Article III Judiciary, beginning with the dangerously complicit and spineless in the face of tyranny “Roberts Court,” that has allowed itself to be “weaponized” and used by the army of authoritarian scofflaws to punish those seeking to uphold the Constitution and the rule of law won’t be solved so quickly. The Article III Judiciary requires an institutional re-examination and a philosophical and ethical overhaul so that it serves the Constitution, due process of law, and equal justice for all, rather than protecting the interests of an insular right-wing minority that seeks nothing less than the disintegration of our nation and our cherished democratic institutions.

PWS

05-29-20

“COURTSIDE REPLAY” — We Really Don’t Have To Look Far To See Why Police Continue To Devalue, Abuse, & Dehumanize the African American Community With Little Accountability — Jeff Sessions’s Overt Racism & Hostility To The Constitution, Civil Rights, The Rule Of Law, & Vulnerable Minorities Set The Ugly Tone For The Trump/Miller/Barr “New Jim Crow!”

James “Jim” Crow
James “Jim” Crow
Symbol of American Racism
Jeff “Gonzo Apocalypto” Sessions
Jeff “Gonzo Apocalypto” Sessions
“Police Brutality? What Police Brutality?”

From the April 4, 2017 edition of “Courtside:”

https://immigrationcourtside.com/2017/04/04/sessions-to-citizens-who-suffered-police-brutality-go-pound-sand-busting-criminals-deporting-migrants-policing-tech-employers-takes-precedence-over-civil-rights-protections-for-african-america/

A.G. Sessions To Citizens Who Suffered Police Brutality: Go Pound Sand! — Busting Criminals, Deporting Migrants, Policing Tech Employers Takes Precedence Over Civil Rights Protections For African Americans — Baltimore Police Reformers Forced To “Stand Alone” After DOJ Pulls The Rug Out From Underneath Them!

https://www.washingtonpost.com/local/public-safety/baltimore-police-commissioner-pledges-reform-despite-justice-dept-action/2017/04/04/5b745ce8-b88b-4b5e-a14b-4f9f84376168_story.html?hpid=hp_rhp-moreheds_baltimore-130pm:homepage/story&utm_term=.3d445d2028e7

Lynh Bui and Peter Hermann report in the Washington Post:

“BALTIMORE — After the federal government released a searing 163-page report in August condemning police practices in Baltimore, the police commissioner and mayor stood with Justice Department leaders to promise sweeping reform.

Change was necessary, they all said, not only to prevent riots like those that flared after the fatal injury of Freddie Gray in police custody, but also to repair the long-standing, deep rift between the city’s crime-weary residents and its police.

Nine months later, Baltimore’s mayor and police commissioner again appeared before television cameras committing to overhaul the department.

But this time they stood by themselves.

“I’m asking the citizens of Baltimore to have faith that we will continue this work,” Mayor Catherine E. Pugh (D) said Tuesday. “It’s hard to deny that these kinds of reforms don’t need to take place in the city of Baltimore.”

On January 12, Attorney General Loretta Lynch announced the Justice Dept. reached a deal for sweeping reforms to the Baltimore Police Dept. after a federal review found officers routinely violated residents’ civil rights. (Reuters)

The pledge to move ahead came hours after the Justice Department had asked a federal judge Monday night to postpone the department’s tentative police reform agreement with the city — part of a wider review of pacts nationwide ordered by U.S. Attorney General Jeff Sessions.

The Baltimore consent agreement was announced days before President Trump took office and awaits a federal judge’s approval.

The request for a delay, which a judge has yet to rule on, left some Baltimore leaders and residents worried that momentum will wane and leave the city stuck in a familiar loop of unfulfilled promises.

Interim city solicitor David Ralph would not comment Tuesday on whether the city would file a response to the requested delay.

“It seemed clear that Justice was going ahead with these reforms, and now all of a sudden they don’t want to do it,” said Rebecca Nagle, co-director of the No Boundaries Coalition, a ­resident-led advocacy group.

The coalition helped organize residents to relay their experiences with city police to the Justice Department team that produced the August report, which concluded that the police department engaged in unconstitutional policing that discriminated against black residents in poor communities through illegal searches, arrests and stops for minor offenses.

“Residents invested two years doing this, and not going forward will destroy the trust that has built up,” Nagle said.

In Sessions’s two-page memo ordering the review of open and pending consent decrees, he said the department wants to guarantee the pacts are in line with Trump administration goals of promoting officer safety and morale while fighting violent crime.

“The Federal government alone cannot successfully address rising crime rates, secure public safety, protect and respect the civil rights of all members of the public, or implement best practices in policing,” the memo stated. “These are, first and foremost, tasks for state, local and tribal law enforcement.”

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Now, I might only be a retired Immigration Judge, not a civil rights expert. But, even I can tell that if “state and local law enforcement” could solve this problem, it would have been solved long ago.

In fact, until former Attorney General Lynch and the DOJ’s Civil Rights Division intervened, state and local authorities had done their best to cover up the problems and avoid solving them. (And, I’m by no means a fan of Lynch. She was appropriately very interested in vindicating the civil rights of African Americans. But, she wasn’t interested in the human rights of mostly Hispanic women and children fleeing Central America. She aided and abetted a system of detention of such asylum applicants under deplorable conditions and hustling their cases through the U.S. Immigration Courts, in too many cases without full due process or even an opportunity for a fair hearing.)

No, what Sessions really means is that he has no interest whatsoever in helping the African American community vindicate their civil rights if it means clamping down on police abuses. After all, look at the “bang up” job that Session’s home state, Alabama, did on protecting its African American citizens from police abuses for most of the 20th Century. Who could ask for more? Or, perhaps we should get a “second opinion” from Congressman John Lewis (D-GA) who had his head split open by one of Sessions’s “police heroes,” an Alabama State Trooper.

That’s what often happens when the Feds rely on states and localities to vindicate citizen’s constitutional rights against the state’s own abuses. Classic “fox guarding the chicken coop.” Sort of like having Jeff Sessions protecting the rights of minorities and migrants. Yeah, the Birmingham Bridge incident was in 1965. But, Sessions and his gang have every intention of turning the clock back to those “glory days” of state’s rights.

Remember, it wasn’t that long ago that Senator Elizabeth Warren (D-MA) was “silenced” on the Senate floor for “disparaging” a colleague, Senator Sessions, by putting the truth about his tone-deaf record on civil and human rights “in the record.” But, silenced or not, Warren spoke truth about Session’s unsuitability to serve as Attorney General. Sadly, African Americans, Hispanics, members of the LGBT community, and migrants are likely to find out first hand that “he’s still the same ol’ Jeff.”

PWS

04-04-17

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The George Floyd tragedy became largely inevitable the day a GOP-controlled Senate approved the stunningly unqualified 21st Century Jim Crow Jeff “Gonzo Apocalypto” Sessions to be Attorney General. The results have been disastrous for America and particularly cruel and tragic for people of color.

The beginning of the solution: Vote Trump and the GOP out of office; make sure Jeff Sessions remains “retired forever;” just say no to equally disgraceful “New Jim Crow” Tommy Tuberville (“birther,” racist, bigot, Trump shill https://www.motherjones.com/politics/2019/08/tommy-tuberville-perfected-his-folksy-trumpism-in-that-great-lab-of-democracy-local-sports-radio/); return Senator Doug Jones (D-AL), an incredibly competent and decent human being, who has been representing all of the people of Alabama in an outstanding manner, to the Senate.

Also, as a nation, we need to come to grips with the failure of our Supreme Court. The Supremes’ GOP majority has enabled, encouraged, and embraced the Trump regime’s “Dred Scottification” of “the other.”

They have disgracefully and improperly failed to set a legal and moral tone condemning racist abuses, kids in cages, gross mistreatment of legal asylum seekers, and blatantly biased and unconstitutional Immigration “Courts” that parody and mock justice every day. The Supremes have enabled GOP schemes to erode minority voting and political power and have shown a willingness bordering on enthusiasm to accept bogus security-related “pretexts” for racism, religious intolerance, and abuse of authority by Trump and his cronies!

Unwarranted favoritism toward unethical Trump Solicitor General Noel Francisco is also a glaring, inexcusable problem. America’s future depends on a more diverse, courageous, humane, and “connected with reality” Supreme Court; a Court that rejects bogus right-wing legal nonsense; a Court that solves problems, upholds individual legal rights, insists on “equal justice for all,” and holds the Executive fully accountable for intentional abuses of authority.

This November, vote like you life and the survival of our democratic republic depend on it! Because they do!

PWS

05-29-20

⚖️💰JUSTICE FOR SALE: DOJ ATTEMPTED TO “BUY OUT” “HOLDOVER” BIA MEMBERS TO CLEAR THE WAY FOR AGGRESSIVELY NATIVIST AGENDA — It Failed, But The Anti-Immigrant, Anti-Asylum, Anti-Due Process Tilt Still Took Place!

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”
Tanvi Misra
Tanvi Misra
Immigration Reporter
Roll Call

https://www.rollcall.com/2020/05/27/doj-memo-offered-to-buy-out-immigration-board-members/

Tanvi Misra reports for Roll Call:

https://www.rollcall.com/2020/05/27/doj-memo-offered-to-buy-out-immigration-board-members/

DOJ memo offered to buy out immigration board members

The buyouts were only offered to Board of Immigration Appeals members hired before Trump took office

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The Justice Department memo came from the director of the Executive Office of Immigration Review, a Justice Department agency. (Bill Clark/CQ Roll Call file photo)

By Tanvi Misra

Posted May 27, 2020 at 5:04pm

The Justice Department offered buyouts to pre-Trump administration career members on its influential immigration appeals board as part of an ongoing effort to restructure the immigration court system with new hires who may be likely to render decisions restricting asylum.

An internal memo viewed by CQ Roll Call shows that James McHenry, the director of the Executive Office of Immigration Review, offered financial incentives to longtime members of the Board of Immigration Appeals to encourage them to retire or resign. The buyouts and “voluntary separation incentive payments” were offered to “individuals whose positions will help us strategically restructure EOIR in order to accommodate skills, technology, and labor markets,” according to the April 17 memo.

EOIR is the Justice Department agency that oversees the Board of Immigration Appeals, a 23-member body that reviews appealed decisions by immigration judges and sets precedent.

According to two knowledgeable sources at EOIR who declined to be identified for fear of retaliation, the memo was sent to the nine board members appointed under previous Republican and Democratic administrations, before Trump took office. No one accepted the buyout offers, according to both sources.

CQ Roll Call reached out for comment on the memo to McHenry, EOIR and the Justice Department and received a statement Wednesday saying that “the Department does not comment on personnel matters.”

“Any insinuation that politicized hiring has become ramped up is inconsistent with the facts,” the statement said.

The memo sheds light on an ongoing debate over BIA hiring. Immigration judges, lawyers and former EOIR employees say the Trump administration has used the board to help meet its goal of reducing immigration, while government officials say they have simply streamlined a lengthy hiring process that was always subject to political judgments.

In October, CQ Roll Call reported on documents showing the Justice Department had tweaked the hiring process to fill six new vacancies on the board with immigration judges with high asylum denial rates and a track record of complaints. Additional memos that CQ Roll Call wrote about earlier this month shed further light on these rule changes that enabled fast-tracking of those and more recent hires.

The three most recent hires to the board include an immigration judge who denied 96 percent of the asylum requests before him and had a history of formal complaints about “bias and prejudice.” The vacancies were created after a flurry of career board members left the BIA.

“EOIR does not select board members based on prohibited criteria such as race or politics, and it does not discriminate against applicants based on any prohibited characteristics,” the Justice Department said in its statement. “All board members are selected through an open, competitive, merit-based process that begins with a public advertisement on the Office of Personnel Management’s (OPM) federal employment website.”

Recent changes to EOIR hiring procedures “have made the selection process of board members more formalized and neutral,” the department said.

While buyouts are typically offered to soften the blow of workforce reductions, the two sources at EOIR said the agency’s offers were made so that the BIA could be reconfigured entirely, with the positions of “board members” replaced by those of “appellate immigration judges.” The differences go beyond title, extending to pay ranges and leave policy. Appellate immigration judges also hear cases at both the trial and appellate levels, creating potential conflicts of interests.

“Many board members have viewed themselves as appellate immigration judges for years, and EOIR first proposed such a designation in 2000,” according to the Justice Department statement. “Elevating trial-level judges to appellate-level courts is common in every judicial system in the United States.”

The American Immigration Lawyers Association and other critics said the buyout offer is the latest example in a series of moves that have undermined the neutrality of the immigration court system. They point out that BIA is already housed under a law enforcement agency, the Justice Department, whose leadership may have a stake in the outcome of the court process.

“The administration is trying to further politicize the immigration court system by packing the appellate bench and is seeking to make room for more handpicked judges with this buyout,” Benjamin Johnson, AILA’s executive director, told CQ Roll Call.

“These latest actions reveal the severe impact of our nation’s immigration system being housed under the Attorney General and only underscore the real need to create an independent immigration court,” he said.

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The refusal of the “holdovers” to take the “buyout” just forced the DOJ politicos to use a different “strategy:” creating additional “appellate judgeships” and “packing” them with appointees with established records of hostility to asylum seekers and the due process rights of respondents.

This presents an interesting historical comparison with an earlier GOP Administration’s program for promoting an anti-immigrant agenda at the BIA. Under Bush II, Ashcroft arbitrarily “cut” the size of the BIA to get rid of the vocal minority of judges who dared to speak up (usually in dissent) for the rights of asylum seekers and other migrants to due process, fundamental fairness, and humane treatment. I was one of those judges “exiled” from the BIA during the “Ashcroft Purge of ‘03.” 

Fortunately, I got a “soft landing” just down the hill from the “EOIR Tower” at the Arlington Immigration Court where I remained on the bench and (mostly) “below the radar screen” for the following 13 years. And, yes, I was offered a “buyout” in the form of “early retirement,” which would have been a rather bad financial deal for me at the time.  So, I rejected it, and eventually got a much better “deal.” 

The DOJ’s claim that the current farce is a “merit selection system” is beyond preposterous. But, as long as Congress and the Article IIIs won’t stand up to Trump’s blatant abuses of due process, the “de-professionalization” of the career Civil Service, and the dehumanization of the “other” before the law (“Dred Scottificfation”), the charade will continue. 

Of course the problem isn’t, as EOIR would lead you to believe, that some “trial judges” are elevated to the appellate bench. It’s which “trial judges” are being “rewarded” for their records of hostility to asylum seekers, respondents, and their attorneys.

Also, in what has become essentially a “closed system” of Immigration Judges, staffed almost exclusively by government attorneys overwhelmingly with prosecutorial backgrounds, the “elevation” of existing trial judges, basically tilts the system heavily in favor of DHS and against respondents. Indeed, some fine Immigration Judges with broader experience including private practice, who would have made superior Appellate Immigration Judges in a true merit-based system, were instead forced off the bench by the demeaning, biased, restrictionist policies implemented at EOIR.

Also, having served as both a trial and appellate judge, I know that the “skill sets” are related, but by no means identical. Not all good trial judges make good appellate judges and vice versa. While it’s certainly to be expected that some trial judges will be elevated to the appellate bench, that should not be the sole source of appellate judges.

Appellate judging requires scholarship, collegiality, creativity, writing, and a broad perspective that many talented private advocates, academics, and NGO lawyers possess in abundance. The same holds true of the Article III Appellate Bench. From the Supremes on down, it’s basically in various degrees of failure to uphold the rule of law and the Constitution against the attacks by the Trump regime.

It’s a case of far too many former District Court Judges, former prosecutors, and right-wing “think tankers,” and far too few individuals who have litigation, legal, and life experience gained from representing those who actually come before the courts. The Supremes in particular are badly in need of folks with a broader, more practical, more humane perspective on the law.

The institutional failure of today’s Supremes in the face of concerted Executive tyranny threatens to collapse our entire justice system and take our democratic republic down with it. The whole Article III judicial selection system needs careful reexamination and reforms lest it fall into the same type of institutional dysfunction and disrepute as today’s Immigration “Courts” (which aren’t “courts” at all in any normal sense of the word).

Of course, Trump, Barr, and the rest of their anti-democracy gang would love to make the captive, biased, Executive-controlled Immigration “Courts” the “model” for the Article III Judiciary. And, John Roberts and the rest of the “JR Five” seem all too eager to accommodate them. The perception already is out here that Roberts & Co. “work for” Trump Solicitor General Noel Francisco in somewhat the same way as Immigration “Judges” work for Billy Barr. Until Roberts and his gang show the courage to stand up to Trump and enforce the legal, constitutional, and human rights of “the other” in our society, that perception will only deepen.

As generations of African-Americans discovered following the end of Reconstruction, Constitutional and legal rights are meaningless in the face of biased and cowardly legislators, judges, and other public officials who simply look the other way, join the abuses, or “go along to get along” with treating “the other” unfairly under the law.

Due Process Forever, Captive & Complicit Courts, Never!

PWS

05-28-20

UPDATE:

Benjamin Johnson
Benjamin Johnson
Executive Director
AILA

AILA Statement on BIA:

AILA: EOIR Director Attempts to Buy Out Remaining Board Members to Solidify Control of Immigration Courts

 

AILA Doc. No. 20052830 | Dated May 28, 2020

Washington, DC – According to the Roll Call story published May 27, 2020, Executive Office for Immigration Review (EOIR) Director McHenry sent the remaining members of the Board of Immigration Appeals (BIA) a buy-out memo offering them financial compensation in exchange for early retirement or resignation. This memo was sent on April 17, 2020, during the global public health crisis, and highlights the continuing push by this administration to manipulate the functions of the BIA, the appeals court located within EOIR.

 

AILA Executive Director Benjamin Johnson stated, “This administration has taken numerous steps to alter the composition and role of the BIA, all in an effort to gain more control over the immigration courts and influence court decisions. In recent months, it came to light that the EOIR Director was attempting to pack the immigration bench with more appointees who have among the lowest asylum grant rates in the country. Now, he is attempting to winnow existing members from the BIA and replace them with a roster of Appellate Immigration Judges, despite congressional and stakeholder concerns about politicization of the BIA. Last year, these new appellate judge positions were created out of thin air. They appear to have nearly identical job functions as the BIA members but the Appellate Immigration Judges can adjudicate both trial and appellate level cases at the same time and can be reassigned away from the BIA at the whim of the EOIR Director.”

 

“This effort shows a complete disregard, or at the very least a failure to appreciate how our judicial system is supposed to work to provide a fair day in court. In 2003, Attorney General Ashcroft purged several members of the BIA, a political move that was severely criticized and ultimately undermined the credibility of our court system. These recent efforts by this administration make it even clearer that our nation urgently needs an immigration court system that is independent, fair and impartial.”

 

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The American Immigration Lawyers Association is the national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members.

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The BIA is a travesty, to be sure.  But, an even bigger travesty is the continued “deference” given to a biased, unqualified, non-expert tribunal and its political handlers by the Article III Courts! Under Marbury v.  Madison, it’s the job of the Article III Courts to say what the law is. To “defer” to the BIA, a body that currently functions not like a independent, expert tribunal, but has become a “shill” for DHS Enforcement and an adjunct of White Nationalist White House Policy Advisor Stephen Miller, is a disgraceful case of judicial task avoidance and dereliction of duty.

If nothing else, the ongoing disaster at the BIA points to an “inconvenient truth” in America’s justice system: We need better, more informed (particularly in the areas of immigrants’ rights and human rights), more courageous judges at all levels of the Federal Judiciary if we are to survive as a democratic republic where the rule of law and equal justice under law have meaning!

Due Process Forever!

PWS

05-28-20