Equal Protection – Page 75 – immigrationcourtside.com

DUE PROCESS/GENDER-BASED ASYLUM WINS: 1st Cir. Slams BIA, Sessions’s Matter of A-B- Atrocity – Remands For Competent Adjudication of Gender-Based Asylum Claim — DE PENA-PANIAGUA v. BARR

DE PENA-PANIAGUA v. BARR, 1^st Cir., 04-24-20, published

PANEL: Howard, Chief Judge, Kayatta and Barron, Circuit Judges.

OPINION BY: Judge Kayetta

KEY EXCERPTS (Courtesy of Amer S. Ahmed, Esquire, Gibson Dunn, Pro Bono Counsel for the Round Table of Former Immigration Judges as Amici):

[The BIA] added, however, that “[e]ven if [De Pena] had

suffered harm rising to the level of past persecution,” De Pena’s

proposed particular social groups are analogous to those in Matter

of A-R-C-G, 26 I. & N. Dec. 388 (BIA 2014), which the BIA

understood to have been “overruled” by the Attorney General in

Matter of A-B, 27 I. & N. Dec. 316, 319 (A.G. 2018). The BIA read

A-B as “determin[ing] that the particular social group of ‘married

women in Guatemala who are unable to leave their relationship’ did

not meet the legal standards to qualify as a valid particular

social group.”

…

That conclusion poses two questions to be resolved on

this appeal: First, does A-B categorically reject any social group

defined in material part by its members’ “inability to leave” the

relationships in which they are being persecuted; and, second, if

so, is A-B to that extent consistent with the law?

…

Is it reasonable to read the law as supporting such a categorical

rejection of any group defined by its members’ inability to leave

relationships with their abusers? A-B itself cites only fiat to

support its affirmative answer to this question. It presumes that

the inability to leave is always caused by the persecution from

which the noncitizen seeks haven, and it presumes that no type of

persecution can do double duty, both helping to define the

particular social group and providing the harm blocking the pathway

to that haven. These presumptions strike us as arbitrary on at

least two grounds.

….

First, a woman’s inability to leave a relationship may

be the product of forces other than physical abuse. In

Perez-Rabanales v. Sessions, we distinguished a putative group of

women defined by their attempt “to escape systemic and severe

violence” from a group defined as “married women in Guatemala who

are unable to leave their relationship,” describing only the former

as defined by the persecution of its members. 881 F.3d 61, 67

(1st Cir. 2018). In fact, the combination of several cultural,

societal, religious, economic, or other factors may in some cases

explain why a woman is unable to leave a relationship.

…

We therefore do not see any basis other

than arbitrary and unexamined fiat for categorically decreeing

without examination that there are no women in Guatemala who

reasonably feel unable to leave domestic relationships as a result

of forces other than physical abuse. In such cases, physical abuse

might be visited upon women because they are among those unable to

leave, even though such abuse does not define membership in the group

of women who are unable to leave.

…

Second, threatened physical abuse that precludes

departure from a domestic relationship may not always be the same

in type or quality as the physical abuse visited upon a woman

within the relationship. More importantly, we see no logic or

reason behind the assertion that abuse cannot do double duty, both

helping to define the group, and providing the basis for a finding

of persecution. An unfreed slave in first century Rome might well

have been persecuted precisely because he had been enslaved (making

him all the same unable to leave his master). Yet we see no reason

why such a person could not seek asylum merely because the threat

of abuse maintained his enslaved status. As DHS itself once

observed, the “sustained physical abuse of [a] slave undoubtedly

could constitute persecution independently of the condition of

slavery.” Brief of DHS at 34 n.10, Matter of R-A, 23 I. & N. Dec.

694 (A.G. 2005).

For these reasons, we reject as arbitrary and unexamined

the BIA holding in this case that De Pena’s claim necessarily fails

because the groups to which she claims to belong are necessarily

deficient. Rather, the BIA need consider, at least, whether the

proffered groups exist and in fact satisfy the requirements for

constituting a particular social group to which De Pena belongs.

Amer S. Ahmed

GIBSON DUNN

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

Read the full opinion at the link above.

While Judge Kayetta does not specifically cite our Round Table’s brief, a number of our arguments are reflected in the opinion. Undoubtedly, with lots of help from Amer and our other superstar friends over at Gibson Dunn, we’re continuing to make a difference and hopefully save some deserving lives of the refugees intentionally screwed by our dysfunctional Immigration Court system under a politicized DOJ.

I’ve heard of the bogus rationale used by the BIA in this case reflected in a number of wrongly decided unpublished asylum denials by both the BIA and Immigration Judges. This should make for plenty of remands, slowing down the “Deportation Railroad,” jacking up the backlog, and once again showing the “substantial downside” of idiotic “haste makes waste shenanigans” at EOIR and allowing biased, unqualified White Nationalist hacks like Sessions and Barr improperly to interfere with what are supposed to be fair and impartial adjudications consistent with Due Process and fundamental fairness.

Great as this decision is, it begs the overriding issue: Why is a non-judicial political official, particularly one with as strong a prosecutorial bias as Sessions or Barr, allowed to intervene in a quasi-judicial decision involving an individual and not only reverse the result of that quasi-judicial tribunal, but also claim to set a “precedent” that is binding in other quasi-judicial proceedings? Clearly, neither Ms. De Pena-Paniagua nor any other respondent subject to a final order of removal under this system received the “fair and impartial decision by an unbiased decision-maker” which is a minimum requirement under the Due Process Clause of the Fifth Amendment.

Let’s put it in terms that an Article III Circuit Court Judge should understand. Suppose Jane Q. Public sues the United States in U.S. District Court in Boston and wins a judgment. Unhappy with the result, Attorney General Billy Barr orders the U.S. District Judge to send the case to him for review. He enters a decision reversing the U.S. District Judge and dismissing Public’s claim against the United States. Then, he orders all U.S. District Judges in the District of Massachusetts to follow his decision and threatens to have them removed from their positions or demoted to non-judicial positions if they refuse.

The First Circuit or any other Court of Appeals would be outraged by this result and invalidate it as unconstitutional in a heartbeat! They likely would also find Barr in contempt and refer him to state bar authorities with a recommendation that his law license be revoked or suspended.

Yet this is precisely what happened to Ms. A-B-, Ms. De Pena Paniagua, and thousands of other asylum applicants in Immigration Court. It happens every working day in Immigration Courts throughout the nation. It will continue to happen until Article III Appellate Judges live up to their oaths of fealty to the Constitution and stop the outrageous, life-threatening miscarriages of justice and human dignity going on in our unconstitutional, illegal, fundamentally unfair, and dysfunctional Immigration Courts.

Due Process Forever!

PWS

04-24-20

LAW YOU CAN USE: Denise Hammond, Esquire, @ Grossman Young & Hammond With All You Really Need To Know About Trump’s Bogus Executive Order “Banning” Immigration! — It’s A Racist Diversion, But Still Another Blow To Democracy!

BLY EO MH dch FINAL

By Denise Hammond, Senior Counsel, Grossman Young, and Hammond:

4922 Fairmont Avenue, Suite 200 Bethesda, MD 20814 240.403.0913

8737 Colesville Road, Suite 500 Silver Spring, MD 20910 301.917.6900

THE EXECUTIVE ORDER SUSPENDING IMMIGRATION:

WHAT IT COVERS AND HOW IT DISTRACTS FROM EFFECTIVE LEADERSHIP

On Monday, April 20, 2020, Donald Trump tweeted that he would be “

Who is Barred by the Order?

The Order is relatively short and bars the following foreign nationals from immigrating permanently to the United States:

• Foreign Nationals Overseas Who Lack an Immigrant Visa or Green Card. With the exceptions discussed below, the Order applies to foreign nationals who do not have an immigrant visa or green card. Unless you are covered by an exception, you are barred from entering the United States as an immigrant even if you are processing, or planning to process, an immigrant visa at a US consul abroad. These visas could be through employment sponsorship, family sponsorship, or the Diversity Visa (DV) green card lottery as discussed below.

• Foreign nationals outside the United States. The Order only applies to individuals who were outside the US on April 23d, the date of issuance. Presumably, someone in the United States on that day could go home today, apply for an immigrant visa at the US Consulate there, and not be barred by the Order.

Who is Not Barred by the Order?

• Anyone in the United States on April 23. This bears repeating. If you are in the United States, you remain eligible to adjust your status to lawful permanent residence or, presumably, to apply for an immigrant visa abroad (discussed below).

1 The Order is entitled

signing an Executive Order

to temporarily suspend immigration into the United States!” This caused great consternation and

confusion among immigrants and their families, US businesses, and the immigration bar. On April

23d, Mr. Trump issued his Order.1 Now that we’ve had a chance to review it, we want to break it

down and explain who it does and does not cover, how it does nothing to make us safer or

strengthen the economy, and how it is another log on the anti-immigrant fire and a thinly-veiled

distraction from the lack of effective leadership to actually combat the Coronavirus.

“Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market

During the Economic Recovery Following the Covid-19 Outbreak

• Nonimmigrants. It is very important to note that the Order does not prevent nonimmigrants from entering the United States. As explained below, nonimmigrants are foreign nationals who enter the United States on a temporary basis and lack intent and permission to remain permanently.

• Anyone with an Immigrant Visa. You can immigrate if you already have an immigrant visa. An explanation of the green card process is helpful to understand this exception.

The Immigrant Visa (Green Card) Process. The process typically begins when the sponsor (e.g. an employer or US Citizen spouse) files an immigrant visa petition in the United States asking the US Citizenship and Immigration Services (USCIS) to find that the foreign national beneficiary satisfies the requirements for classification in a certain immigrant category, such as an outstanding researcher or the spouse of a US Citizen. On approval, when the beneficiary reaches the front of the visa waiting line (or if there is no line), he or she applies for permission to immigrate either through “adjustment of status” or “consular processing.” If the beneficiary is in the United States, in H-1B visa status for instance, s/he can apply to USCIS to “adjust” his or her status to lawful permanent residence. On approval, s/he will receive a green card. If the beneficiary is overseas, however, s/he must apply to the US Consulate in his or her home country for an immigrant visa. On approval, s/he will be granted an immigrant visa, can be physically admitted to the United States as a lawful permanent resident and will soon get a green card in the mail.

Anyone who is overseas and already has received an immigrant visa is exempt from the Order and can immigrate. (But keep in mind that the immigrant visa must be used within 6 months of issuance, which can be a problem given current global travel restrictions).

• Lawful Permanent Residents. The Order also does not apply to you if you already have a green card, lawful permanent residence or, as noted, an immigrant visa.

• US Military Members. If you are a member of the US military (or the spouse or child of a servicemember), the Order doesn’t apply to you.

• Healthcare Workers. The Order doesn’t apply to anyone overseas (and most immediate family members) who seeks an immigrant visa:

 as a doctor, nurse or other healthcare professional

 to perform COVID19 research

 to perform work essential to combating or helping patients with COVID19.

• Job Creation Investors. The Order does not apply to anyone who has an approved “EB-5” petition. This visa category if for foreign nationals who invest $1 million (or less in economically depressed areas) in projects that will create jobs for US workers.

• Special Immigrants. The Order does not apply to anyone certain individuals who see to immigrate under USCIS “Special Immigrant” programs, and their spouses and children:

 Afghanistan or Iraq nationals who supported the US Armed Forces as translators  Iraq nationals who worked for or on behalf of the US Government in Iraq2

• Law Enforcement Aid. The Order does not apply to you if you can satisfy the US Government that your immigration will advance important law enforcement objectives.

• National Interest. The Order doesn’t apply to you if you can show that your entry would be in the national interest.

• Holders of Advance Parole or other Travel Document. The Order does not apply to any foreign national who is overseas but who has Advance Parole or other official travel document.

• Asylees and Refugees. By its terms, nothing in the Order can limit the rights of asylees, refugees and foreign nationals that seek other forms of humanitarian relief. The Trump Administration’s assault on these forms of relief makes this suspect.

• Spouse and Children of US Citizens. The Order does not apply to a spouse, minor child or prospective adoptee of a US Citizen. In an especially harsh stroke, the Order bars from entry the parents of US Citizens and all family members of Lawful Permanent Residents (discussed below).

The Order gives the US Consul the authority to decide if any of the above exemptions applies.

ANALYSIS

The Order is a Harsh and Illusory Distraction from Failed Leadership and Does not Advance its Stated Purpose

A close look at the Order reveals the actual limits of its reach and shows that it fails to promote its stated purpose. This leads to the inescapable conclusion that the Order is primarily a distraction from a failure of leadership in the war on Covid-19 and yet another log on the anti-immigrant fires.

The Order’s Limited Reach. The Trump Administration effectively gutted overseas visa processing more than one month ago when, on March 20, it suspended routine visa services at US Consulates around the world in response to the pandemic.3 Since then, absent an emergency, immigrant visa

2 https://www.uscis.gov/humanitarian/special-immigrants

3 https://travel.state.gov/content/travel/en/traveladvisories/ea/routine-visa-services-suspended-worldwide.html

applicants have been practically prevented from processing their cases and immigrating to the United States. Thus, although it is not readily apparent, the Order does little if anything to further curtail immigration.

The number of foreign nationals who are NOT affected by the Order also suggests that its surrounding fanfare is a lot of white noise. This is because it only bars “immigrants” but not “nonimmigrants” who comprise the vast majority of foreign nationals who enter the United States. Immigrants, a/k/a lawful permanent residents or green card holders, are those admitted to the United States on a permanent basis. To be eligible, they must meet the highly demanding requirements of a legal visa category. These can be based on a hard-to-fill job offer, extraordinary contributions, a close family relationship to a US Citizen or lawful permanent resident, a US investment that will create jobs, humanitarian considerations or a few other grounds. Nonimmigrants, on the other hand, enter the United States temporarily for a specific purpose. These include highly skilled H-1B professionals, certain investors, business visitors and tourists, and students, and their family members, to name a few.

The number of immigrants to the United States is dwarfed by the number of nonimmigrants who enter temporarily and are allowed to remain for various periods. Just over 1 million immigrants are admitted to the United States annually; more than 186 million nonimmigrants are admitted in a typical year. During the most recent year for which data is available, 90% of nonimmigrants were visitors for business or pleasure, and a small handful were temporary high-skilled workers, some agricultural workers and students, with their families. Currently, about 2.3 million nonimmigrants reside in the United States. i Thus, the exemption of nonimmigrants from the Order underscores its limited reach and its true purpose of distracting from failed leadership and appealing to anti- immigrant sentiment during an election cycle.

The Order is Temporary. Additionally, the Order is limited to 60 days, although it could be extended. By its terms, it was designed to protect job opportunities for marginalized US workers during record unemployment. Whether it will be extended most likely will depend on the state of the US economy, although we fear that political considerations will come into play.

The Order Fails to Promote its Stated Purpose. As its title shows, the Order is designed to protect jobs for US workers. The preamble states that the Order was designed to protect unemployed marginalized Americans, from competing for jobs during high unemployment. However, the Order fails to accomplish this end.

First, the Order shuts the door to the best and the brightest and the most highly educated from around the world and a host of others who will not compete for jobs with marginalized US workers. These include foreign nationals with demonstrated “extraordinary ability,” outstanding researchers, multi-national managers, advanced degree workers and those with exceptional ability and a college- education, all of whom are barred from entering in what are known as the “EB” or employment- based immigrant visa categories. While these workers could boost the economy, they clearly will not take jobs from the marginalized American worker.

Second, the Order assumes that immigrants will seek to work once they get here. While some will, the Trump Administration’s exceedingly onerous “public charge” requirements make this a disingenuous basis for banning their immigration. As a general rule, an immigrant visa applicant must show that s/he will not become a “public charge.” This now requires voluminous evidence that the intending immigrant can support himself or herself and his or her household with an unprecedented degree of assets and income or that the sponsor can provide this level of support. Immigrants who are in a position to meet this high threshold are unlikely to compete with marginalized workers for low-skilled jobs. Accordingly, it is dishonest and cruel to close the doors to all immigrants, including family-based immigrants, based on an outcry for marginalized worker job protection. Rather, in barring all family-based immigrants other than the spouses and children of US Citizens, the Order accomplishes one of Mr. Trump’s long-stated goals of ending what he calls “chain migration.” Parents of US citizens, who have long been a preferred category under US immigration law, are barred by the Order. So are adult children of US Citizens, siblings of US citizens, as well as spouses and children of permanent residents. Congress has passed laws allowing these parents, children, husbands and wives to immigrate to join their families in the United States. The Order eviscerates this law and policy without reason.

Conclusion

Mr. Trump’s Order suspending immigration to protect the US labor market during the coronavirus pandemic is the legal equivalent of ear candling to treat liver disease. Neither works, and both are dangerous.

Fans of ear candling use a hollow candle to drip hot wax in the ear. They claim it creates negative pressure and funnels out unwanted ear wax. But there’s no evidence that it works. Additionally, the FDA warns that it can block the ear canal, puncture the eardrum and cause other injuries. And it has nothing whatsoever to do with liver disease.

Mr. Trump’s new Order, likewise, is unhealthy for us as a nation and economically toxic. It does nothing to protect job opportunities for marginalized Americans, which is its stated purpose. Instead, it closes our borders to the best and the brightest whose very help we need to wrestle the virus to the mat. It also cruelly separates families.

The corona virus does not discriminate on the basis of immigration status. Mr. Trump should behave accordingly.

i https://www.dhs.gov/sites/default/files/publications/Nonimmigrant_Population%20Estimates_2016_0.pdf

*********

Here’s a copy of the order:

https://www.whitehouse.gov/presidential-actions/proclamation-suspending-entry-immigrants-present-risk-u-s-labor-market-economic-recovery-following-covid-19-outbreak/

Thanks, Denise!

What we really have here is an “Eternal Reichstag Fire.” 🔥 The Clown in Chief 🤡 continues to use bogus “emergencies,” as “greenlighted” by the “J.R. Five” on the Supremes, to suspend the rule of law and “govern” by Executive decree.

This looks less like the “immigration bar” tweeted by Trump for the benefit of his “base” and more like “Phase I” of Stephen Miller’s draft White Nationalist rewrite of the permanent immigration system. It’s basically a way of reducing permanent immigration by “picking on” relatives of U.S. green card holders, adult relatives (other than spouses) of US citizens, DV Lottery winners, and limiting “employment-based” permanent immigration to certain medical professionals, researchers, and “big investors.”

The attack on family immigration, at the core of our traditional immigration system and a source of both economic strength and diversity, is basically what has become the racist trope of “eliminating chain migration.” What it really means is attempting to restrict migrants of color for a “whiter, more Christian” America, long a dream of Miller and the White Nationalist hate groups he has been associated with.

Miller’s nativist program was resoundingly rejected by a bipartisan majority of Congress. But now, with the “J.R. Five” firmly in their pocket, and Congress largely in a state of permanent suspension when it comes to anything other than handing out money, Trump and Miller plan to rewrite the legal immigration system, piece by piece, using Executive decrees propped up by a bogus, but never ending, “employment national emergency.”

On the other hand, by allowing the admission of “non- immigrants” the order recognizes that we will continue to need migrants and their industry and skills at all levels of our economy as we recover. But, they will be relegated to a more subservient status where they are beholden to employers and can’t qualify to become permanent members of our society and eventually citizens. In other words, insuring that migrants coming to America will remain exploitable and disenfranchised. This fits right in with Stephen Miller’s White Nationalist playbook.

Once the bogus declaration of “immigration emergency” has been invoked as “temporary,” it never ends. But, with Roberts and his gang of right wing authoritarian enablers determined to “look the other way,” don’t expect any loosening until we stand up and rid ourselves of the Trump kakistocracy at the ballot box (unless Trump gets away with burning that too).

A corrupt and cowardly Supremes’ majority and a feckless Congress led by “Moscow Mitch” are allowing Trump’s “misrule by decree” similar to the Third Reich. And of course “the other” — immigrants — are the primary target.

But, this is also by implication directed at drumming up hate and resentment against Hispanic Americans, all Americans of color, and Muslims, etc. In other words, the “usual suspects” for the White Nationalists. This “Eternal Reichstag Fire” 🔥of hate, lies, scapegoating, and authoritarianism will continue burning and consuming our democracy and its institutions unless and until we get “regime change.”

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

PWS

0-24-20

INSANITY ALWAYS ON THE DOCKET @ EOIR: Court Cleaners In Hazmat Suits Add To The “Clown Court” 🤡 Atmosphere — But, Those Forced To Risk Their Lives ☠️ To Keep The Deportation Railroad 🚂 Rolling Aren’t Laughing 😰!

Hon. A. Ashlley Tabaddor — Hon. A. Ashley Tabaddor
President, National
Association of Immigration Judges (“NAIJ”)

Hon. Jeffrey S. Chase
Jeffrey S. Chase Blog
Coordinator & Chief Spokesperson, Round Table of Retired Immigration Judges

Trump’s ‘Deportation Machine’ Keeps Growing Despite Pandemic – Bloomberg

Malathi Nayak reports for Bloomberg News:

As President Donald Trump prepares to pause immigration into the U.S., the court system that handles the removal of immigrants is projected to issue nearly 60% more deportation orders than last year.

With the rest of the U.S. legal system grinding to a near halt amid the pandemic, at the nation’s 69 federal immigration courts cleaning crews clad in hazmat suits are regularly used to make sure in-person hearings can continue. The courts are moving at speed to reduce a massive backlog of cases despite outdated technology and criticism from advocacy groups and a union representing most of the nation’s 460 immigration judges, who say the pace is putting people at risk of infection.

“The deportation machine has not stopped,” said Florida immigration lawyer Ira Kurzban. “It’s somewhat outrageous given the current circumstances.”

While the number of people deported from the U.S. fell in March, one research group predicts that the total number of deportation orders will rise for the 2020 fiscal year, despite the pandemic. The Transactional Records Access Clearinghouse, a Syracuse University group that tracks government enforcement actions, estimates there will be 340,500 deportation orders in the year ending Sept. 30, 2020, up from 215,535 for the prior year. A spokeswoman for the Justice Department, which oversees immigration courts, declined to comment on the projection, saying it doesn’t certify third-party statistics.

The National Association of Immigration Judges says the continued operation of the courts is unsafe and has called for them to be closed. The Trump administration in 2018 set a quota for each immigration judge to close 700 cases a year, a requirement that remains in force during the pandemic, said Ashley Tabaddor, president of the union.

‘Hobbesian Choice’

U.S. immigration judges are “being forced into this Hobbesian choice of risking their health and having to keep their jobs,” said Tabaddor. She cites a colleague who is trying to meet his quota while minimizing his health risk as a throat cancer survivor.

Along with the judges, 1,200 support staff work in the nation’s immigration courts. Those courts are taking precautionary steps similar to those elsewhere in the federal system “to reduce the likelihood of exposure to Covid-19,” including holding hearings via phone or video conference whenever possible, according to Kathryn Mattingly, a Justice Department spokeswoman. Hearings involving people not in custody have also been suspended until May 15.

But judges and lawyers said it is harder for the immigration courts to operate remotely than other federal courts. While electronic document filing is routine in other federal courts, the immigration courts have struggled to introduce it, leaving most documents in paper form. Though some filings are now accepted by email, the many court employees without laptops need to come into the office to access them.

“The immigration courts are probably 20 years behind federal courts in terms of technology,” said Jeff Chase, a former immigration judge. Moreover, some immigration courts have rules where opting for a phone hearing means giving up the right to object to documents submitted by ICE, he said.

The current situation has immigration lawyers choosing between their personal well-being and a client’s future, Chase said. “Lawyers should not be put in this position.”

. . . .

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

Read the rest of the article at the link.

Nice quotes from Judges Tabaddor and Chase!

Actually, when the “off docket”cases are factored in, the backlog exceeds 1.4 million cases. Even with artificially accelerated production, and if no new cases were filed by DHS (reality check — receipts have been exceeding completions for years) it would take until 2024 to “clear” the existing backlog. But, the reality is that even by speeding up the “Deportation Railroad,” adding new often inadequately trained judges largely from the ranks of prosecutors, eliminating Due Process, demeaning their own employees, and unethically skewing the law against migrants, EOIR has been unable to reduce the backlog by even one case under the Trump regime!

Indeed, when all of the pending and “off docket” cases are considered, the already large backlog left behind by the Obama Administration has more than doubled, and is well on its way to tripling, under the Trump regime’s “malicious incompetence” and pattern of often illegal and irrational behavior. Many of the “final orders of deportation” being cranked out by EOIR are either legally wrong or counterproductive — deporting harmless individuals who actually are productive members of our society, often with U.S. citizen family members. This system, including the mindless abuse of docket space by DHS Enforcement and “Aimless Docket Reshuffling” by EOIR, is broken! Yet, it’s allowed to continue grinding away, putting lives in danger in more ways than one.

And, speaking of incompetence, whether malicious or not, I was on the initial “E-Filing Group” that submitted comprehensive recommendations and a detailed plan for implementing e-filing to ”EOIR management” back in 2001 or 2002. Since then, successive waves of EOIR “management” have squandered time, money, and public trust without producing a usable product. Meanwhile, almost every other court in America has designed and implemented e-filing systems. This catastrophic failure in and of itself would more than justify eliminating EOIR and replacing it with a judicially-managed, independent, professionally administered court system that would guarantee due process, efficiency, and fundamental fairness for all.

But, that’s by no means the only problem at EOIR. It’s unconstitutional, unfair, dysfunctional, unprofessional, and downright dangerous. I have posted recently about how Courts of Appeals continue to find that the BIA has grossly misinterpreted, distorted, and/or misapplied both law and facts in “life or death cases.” Is “good enough for government work” really OK for human lives? That neither Congress nor the Article III Courts have had the guts and decency to put an end to this life-threatening farce staining our justice system is an unforgivable national disgrace.

Those of us who understand exactly what’s happening at EOIR under the Trump kakistocracy might at the moment be powerless to change it. But, we’re continuing to challenge the unacceptable status quo and making a public record of this grotesque malfeasance and of those in all three branches of Government who are “papering over” (and by doing so enabling) EOIR’s abuses. Eventually, positive change will come. The only question is how many lives and futures will unnecessarily be lost before it does?

Due Process Forever! Deadly ☠️ Clown Courts, 🤡 Never!

PWS

04-23-20

☠️☠️👎🏻👎🏻BAD FAITH REGIME: Federal Judge Slams DHS Detention Response To COVID-19, Orders Custody Reviews: “Defendants have likely exhibited callous indifference to the safety and wellbeing of the Subclass members [detained immigrants at risk]. The evidence suggests systemwide inaction that goes beyond a mere ‘difference of medical opinion or negligence.’”

Dan Kowalski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/court-orders-custody-review-of-ice-prisoners-at-risk-for-c19

Court Orders Custody Review of ICE Prisoners at Risk for C19

SPLC, Apr. 20, 2020

“A federal judge today ordered Immigration and Customs Enforcement (ICE) to promptly revisit custody determinations, including consideration of release for all persons in ICE detention whose age or health conditions place them at increased risk due to the Covid-19 pandemic. The order comes weeks after the Civil Rights Education and Enforcement Center (CREEC), Disability Rights Advocates (DRA), Southern Poverty Law Center (SPLC), Orrick LLP and Willkie Farr and Gallagher LLP filed for an emergency preliminary injunction on March 25.

In his blistering rebuke of the government’s response to Covid-19 in detention centers, U.S. District Judge Jesus Bernal wrote, “As a result of these deficiencies, many of which persist more than a month into the COVID-19 pandemic, the Court concludes Defendants have likely exhibited callous indifference to the safety and wellbeing of the Subclass members [detained immigrants at risk]. The evidence suggests systemwide inaction that goes beyond a mere ‘difference of medical opinion or negligence.’” “

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

Go on over to LexisNexis above for a link to the SPLC report and copy of Judge Bernal’s order.

Thanks and congrats to SPLC and all the pro bono all-stars involved for taking this on. Will there eventually be accountability and liability for what appears to be intentional, life threatening misconduct, or at best criminal negligence, among officials of the Trump regime?

PWS

04-21-20

“DUH” ARTICLE OF DA’ DAY: The Ban Is (Yet Another) Scam! 🆘🤥👎🏻

https://www.washingtonpost.com/opinions/2020/04/21/trumps-new-immigration-ban-is-scam-dont-pretend-otherwise/

Greg Sargent writes in the WashPost:

There is a single, overarching reality that President Trump cannot make disappear: Due to his pathological unwillingness to take coronavirus seriously, Trump catastrophically squandered numerous early weeks that could have been used to develop a much more robust federal response, and right now we’re living through the horrible consequences.

Trump’s new suspension on immigration, which he “announced” on Twitter late last night, should be seen through this prism.

The new suspension has two rationales, according to Trump and White House officials: To continue combating coronavirus and to protect U.S. workers amid a crushing economic downturn.

It will do neither of those things in any meaningful sense — which means that it won’t have the impact that Trump himself says it’s designed to.

According to the New York Times, Trump will sign an executive order that temporarily bars “the provision of new green cards and work visas,” which means the administration will “no longer approve any applications from foreigners to live and work in the United States for an undetermined period of time.”

It’s hard to say how much of an impact this will have. As the Wall Street Journal points out:

Administration officials said the order wouldn’t make substantial changes to current U.S. policy. Even without an executive order, the administration has already all but ceased nearly every form of immigration. Most visa processing has been halted, meaning almost no one can apply for a visa to visit or move to the U.S. Visa interviews and citizenship ceremonies have been postponed and the refugee program paused.

Immigration analyst Sarah Pierce notes that a lot will turn on details, such as whether this suspension applies to foreign nationals already here and applying for green cards or trying to renew visas, or if it only applies to people outside the country who want to come here, which is effectively no longer possible already.

“If they want to make official what’s already in place, it would make a flashy statement while having minimal impact,” Pierce told me, adding that if they did apply it to people who are already here as well, it could be a lot worse.

President Trump on April 20 said he will issue an executive order temporarily suspending all immigration into the country. (Reuters)

We’ll see soon enough. But we can say right now that this isn’t a solution to the current problems we face on coronavirus, because those problems are rooted in the spread that already took place here. We are starting to bend the curve through social distancing — which Trump long resisted, and which he then tried to undo prematurely before backing off.

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

Yup! You can read the rest of Greg’s article at the link.

Now, in a real democracy, with an independent judiciary, we’d expect immediate and forceful repudiation and perhaps sanctions against the Executive for this latest racist scam.

But, as I have pointed out many times, the “J.R. Five” on the Supremes has a never-ending appetite for putting the law, our Constitution, and simple human decency aside and blindly supporting, enabling, and encouraging the White Nationalist regime in its various immigration scams and shenanigans. They are all as transparently bogus as this one. Trump makes an off the wall political statement out of the White Nationalist playbook and the minions run around trying to engineer and fabricate a legal pretext. The lower Federal Courts often immediately see through the fraud; but, the Supremes step in to rescue the racist agenda, sweep it under the carpet, and in doing so “greenlight” the next extreme step.

Sadly, even regime change won’t be enough to immediately restore courage, integrity, and human decency to our failed highest court. But, it will be a start. Sometimes, “internal rebellion from below” can force change, or at least some integrity and accountability, back into a failing judicial system.

Due Process Forever! White Nationalist Scams Never!

PWS

04-21-20

FAILED STATE: America’s “Clown Prince” 🤡 More Like Infamous Marshal Petain Than Leader Of The Free World — “But the leader he brings to mind is Marshal Philippe Pétain, the French general who, in 1940, signed an armistice with Germany after its rout of French defenses, then formed the pro-Nazi Vichy regime. Like Pétain, Trump collaborated with the invader and abandoned his country to a prolonged disaster. And, like France in 1940, America in 2020 has stunned itself with a collapse that’s larger and deeper than one miserable leader,” Says George Packer @ The Atlantic!🆘😰👨🏻‍⚖️

Henri Petain
Famous French Collaborator/Traitor

Trump Clown — Donald J. Trump
Famous American Clown

George Packer
American Journalist, Author, Playwright

https://www.theatlantic.com/magazine/archive/2020/06/underlying-conditions/610261/

Packer writes in The Atlantic:

When the virus came here, it found a country with serious underlying conditions, and it exploited them ruthlessly. Chronic ills—a corrupt political class, a sclerotic bureaucracy, a heartless economy, a divided and distracted public—had gone untreated for years. We had learned to live, uncomfortably, with the symptoms. It took the scale and intimacy of a pandemic to expose their severity—to shock Americans with the recognition that we are in the high-risk category.

This article appears in the Special Preview: June 2020 issue.

The crisis demanded a response that was swift, rational, and collective. The United States reacted instead like Pakistan or Belarus—like a country with shoddy infrastructure and a dysfunctional government whose leaders were too corrupt or stupid to head off mass suffering. The administration squandered two irretrievable months to prepare. From the president came willful blindness, scapegoating, boasts, and lies. From his mouthpieces, conspiracy theories and miracle cures. A few senators and corporate executives acted quickly—not to prevent the coming disaster, but to profit from it. When a government doctor tried to warn the public of the danger, the White House took the mic and politicized the message.

Every morning in the endless month of March, Americans woke up to find themselves citizens of a failed state. With no national plan—no coherent instructions at all—families, schools, and offices were left to decide on their own whether to shut down and take shelter. When test kits, masks, gowns, and ventilators were found to be in desperately short supply, governors pleaded for them from the White House, which stalled, then called on private enterprise, which couldn’t deliver. States and cities were forced into bidding wars that left them prey to price gouging and corporate profiteering. Civilians took out their sewing machines to try to keep ill-equipped hospital workers healthy and their patients alive. Russia, Taiwan, and the United Nations sent humanitarian aid to the world’s richest power—a beggar nation in utter chaos.

Adam Chilton, Kevin Cope, Charles Crabtree, and Mila Versteeg: Red and blue America agree that now is the time to violate the Constitution

Donald Trump saw the crisis almost entirely in personal and political terms. Fearing for his reelection, he declared the coronavirus pandemic a war, and himself a wartime president. But the leader he brings to mind is Marshal Philippe Pétain, the French general who, in 1940, signed an armistice with Germany after its rout of French defenses, then formed the pro-Nazi Vichy regime. Like Pétain, Trump collaborated with the invader and abandoned his country to a prolonged disaster. And, like France in 1940, America in 2020 has stunned itself with a collapse that’s larger and deeper than one miserable leader. Some future autopsy of the pandemic might be called Strange Defeat, after the historian and Resistance fighter Marc Bloch’s contemporaneous study of the fall of France. Despite countless examples around the U.S. of individual courage and sacrifice, the failure is national. And it should force a question that most Americans have never had to ask: Do we trust our leaders and one another enough to summon a collective response to a mortal threat? Are we still capable of self-government?

This is the third major crisis of the short 21st century. The first, on September 11, 2001, came when Americans were still living mentally in the previous century, and the memory of depression, world war, and cold war remained strong. On that day, people in the rural heartland did not see New York as an alien stew of immigrants and liberals that deserved its fate, but as a great American city that had taken a hit for the whole country. Firefighters from Indiana drove 800 miles to help the rescue effort at Ground Zero. Our civic reflex was to mourn and mobilize together.

Partisan politics and terrible policies, especially the Iraq War, erased the sense of national unity and fed a bitterness toward the political class that never really faded. The second crisis, in 2008, intensified it. At the top, the financial crash could almost be considered a success. Congress passed a bipartisan bailout bill that saved the financial system. Outgoing Bush-administration officials cooperated with incoming Obama administration officials. The experts at the Federal Reserve and the Treasury Department used monetary and fiscal policy to prevent a second Great Depression. Leading bankers were shamed but not prosecuted; most of them kept their fortunes and some their jobs. Before long they were back in business. A Wall Street trader told me that the financial crisis had been a “speed bump.”

All of the lasting pain was felt in the middle and at the bottom, by Americans who had taken on debt and lost their jobs, homes, and retirement savings. Many of them never recovered, and young people who came of age in the Great Recession are doomed to be poorer than their parents. Inequality—the fundamental, relentless force in American life since the late 1970s—grew worse.

This second crisis drove a profound wedge between Americans: between the upper and lower classes, Republicans and Democrats, metropolitan and rural people, the native-born and immigrants, ordinary Americans and their leaders. Social bonds had been under growing strain for several decades, and now they began to tear. The reforms of the Obama years, important as they were—in health care, financial regulation, green energy—had only palliative effects. The long recovery over the past decade enriched corporations and investors, lulled professionals, and left the working class further behind. The lasting effect of the slump was to increase polarization and to discredit authority, especially government’s.

Both parties were slow to grasp how much credibility they’d lost. The coming politics was populist. Its harbinger wasn’t Barack Obama but Sarah Palin, the absurdly unready vice-presidential candidate who scorned expertise and reveled in celebrity. She was Donald Trump’s John the Baptist.

David Frum: Americans are paying the price for Trump’s failures

Trump came to power as the repudiation of the Republican establishment. But the conservative political class and the new leader soon reached an understanding. Whatever their differences on issues like trade and immigration, they shared a basic goal: to strip-mine public assets for the benefit of private interests. Republican politicians and donors who wanted government to do as little as possible for the common good could live happily with a regime that barely knew how to govern at all, and they made themselves Trump’s footmen.

Like a wanton boy throwing matches in a parched field, Trump began to immolate what was left of national civic life. He never even pretended to be president of the whole country, but pitted us against one another along lines of race, sex, religion, citizenship, education, region, and—every day of his presidency—political party. His main tool of governance was to lie. A third of the country locked itself in a hall of mirrors that it believed to be reality; a third drove itself mad with the effort to hold on to the idea of knowable truth; and a third gave up even trying.

Trump acquired a federal government crippled by years of right-wing ideological assault, politicization by both parties, and steady defunding. He set about finishing off the job and destroying the professional civil service. He drove out some of the most talented and experienced career officials, left essential positions unfilled, and installed loyalists as commissars over the cowed survivors, with one purpose: to serve his own interests. His major legislative accomplishment, one of the largest tax cuts in history, sent hundreds of billions of dollars to corporations and the rich. The beneficiaries flocked to patronize his resorts and line his reelection pockets. If lying was his means for using power, corruption was his end.

Read: It pays to be rich during a pandemic

This was the American landscape that lay open to the virus: in prosperous cities, a class of globally connected desk workers dependent on a class of precarious and invisible service workers; in the countryside, decaying communities in revolt against the modern world; on social media, mutual hatred and endless vituperation among different camps; in the economy, even with full employment, a large and growing gap between triumphant capital and beleaguered labor; in Washington, an empty government led by a con man and his intellectually bankrupt party; around the country, a mood of cynical exhaustion, with no vision of a shared identity or future.

. . . .

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

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

Very discouraging. But, it’s not too late, yet. We have a chance in November to throw out the Trump/GOP Kakistocracy and start rebuilding America with a vision of the common good, common sense, and human dignity! Be the best, rather than running a “race to the bottom.”

Let’s consign Trump and his toadies to the same “dustbin of history” as Pétain and his collaborators!

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

PWS

04-21-20

JIM CROW WINS, AMERICA LOSES, AGAIN — WHITE NATIONALIST CLOWN-IN-CHIEF 🤡 HALTS IMMIGRATION TO DIVERT ATTENTION FROM MASSIVE FAILURE OF GOVERNANCE, AS FECKLESS DEMS PROTEST! — Announced By Tweet At Time When Borders Closed Anyway — A “pathetic attempt to shift blame from his Visible Incompetence to an Invisible Enemy,” Says Sen. Tim Kaine (D-VA) 😰👎🏻

By Paul Wickham Schmidt

Courtside Exclusive

April 21, 2020. Migrants didn’t bring coronavirus to the U.S. Inevitable as its arrival was, U.S. travelers returning from abroad hastened the infection. The Trump regime ignored advanced warnings, wasted time, failed to prepare, and intentionally misled the public into believing that the problem was minor and under control. As we know, it was neither. No wonder the “Chief Clown” needs to shift attention to “the usual suspects.”

Rather than being a threat, courageous, talented, hard-working migrants of all types have been at the forefront of our battle against coronavirus. They put their own lives at risk to provide health care, medical research, food, sanitation, delivery, stocking, transportation, cleaning, technology, and other essential services. Their reward from Trump, Miller, and the other regime racists: to be scapegoated and further dehumanized by those whose “malicious incompetence” actually threatens the health and safety of all Americans.

Nobody knows what the U.S. economy will look like post-COVID-19. But, we can be sure that migrants will play a key role in our future. And, of course, permanent legal immigrants are carefully screened and required to undergo health examination before being admitted.

Meanwhile, Democrats complain, but show show no sign of actually using their leverage to halt the regime’s invidious assault on migrants. They weren’t even to get all taxpaying immigrant families included in the initial stimulus payments nor have they been able to require immigration authorities to comply with best health practices for detained migrants. Nor does it look like the needs of migrants will be addressed by the latest proposed legislation, although exact details are still pending. So, their bluster is just that —bluster.

Undoubtedly, the brave lawyers of the New Due Process Army will mount legal challenges to this latest assault on the rule of law. While some challenges might succeed in the lower Federal Courts, to date the “J.R. Five” on the Supremes have shown no inclination to look critically at any of the regime’s many misuses and abuses of so-called “emergency” and “national security” rationales, even when they are transparently bogus “pretexts” for xenophobia, religious bigotry, and racism.

Perhaps it’s largely a moot point right now. Market forces affect immigration. With worldwide travel restrictions, borders closed, and 22 million out of work in the U.S., the allure of migration to the U.S. should be sharply reduced.

The Trump regime’s open hostility to immigrants plus our chaotic response to COVID-19, perhaps the world’s worst overall at this point, might make the U.S. a less attractive place for future immigration, particularly for legal migrants who have other choices. Demand for migration is normally a sign of economic and social health. As America fades into disorder under the kakistocracy, so might our ability to attract migrants, particularly those we claim to prize.

According to James Hohmann at the Washington Post, senior officials at the DHS were surprised by Trump’s late night tweet announcing the impending action. As Hohmann noted, that’s an indication of the deep thought, analysis, and preparation that went into this action. Trump has normalized incompetence and dumb decisions made based on a racist political agenda to the point where they barley cause a ripple in our distorted national discussion anymore. I’d say it was like being “goverened” by a five-year-old, but that would be a supreme insult to most five-year-olds I know.

While the “Chief Clown” can’t move fast enough to reopen the economy, even in the face of solid evidence that the it’s premature in most areas, don’t expect the bogus “immigration emergency” to end as long as this regime is in power. Crisis becomes yet another opportunity for the “worst of the worst among us” — the kakistocracy — to act on their biases and prejudices and get away with it.

Here’s a report from Rebecca Shabad @ NBC News:

https://www.nbcnews.com/politics/congress/xenophobe-chief-democrats-blast-trump-s-plan-suspend-immigration-u-n1188551

WASHINGTON — Congressional Democrats slammed President Donald Trump after he announced that he plans to suspend immigration to the United States, arguing that such a move does nothing to protect Americans from the coronavirus and deflects attention away from his handling of the outbreak.

House Democratic Caucus Chairman Hakeem Jeffries, D-N.Y., tweeted that Trump is the “xenophobe. In. chief.”

“This action is not only an attempt to divert attention away from Trump’s failure to stop the spread of the coronavirus and save lives, but an authoritarian-like move to take advantage of a crisis and advance his anti-immigrant agenda. We must come together to reject his division,” tweeted Rep. Joaquin Castro, D-Texas, chairman of the Congressional Hispanic Caucus.

Shortly after 10 p.m. ET on Monday, Trump announced in a tweet, “In light of the attack from the Invisible Enemy, as well as the need to protect the jobs of our GREAT American Citizens, I will be signing an Executive Order to temporarily suspend immigration into the United States!”

There were no additional details. A senior administration official said Trump could sign the executive order as early as this week.

The tweet came as the death toll in the U.S. from COVID-19 topped 42,000 people, according to Johns Hopkins’ Coronavirus Resource Center.

Sen. Tim Kaine, D-Va., Democrats’ 2016 vice presidential nominee, called it a “pathetic attempt to shift blame from his Visible Incompetence to an Invisible Enemy.”

. . . .

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

Read Rebecca’s full article at the link.

Due Process Forever. The White Nationalist Kakistocracy Never!

PWS

04-21-20

THANK UW LAW: Unemployment Insurance Was The Brainchild of Two Amazing UW Law Students Who Were Also In Love — It All Began In L-1 Torts! — PLUS: The “Wisconsin Idea” Continues Today Through The Work of Professor Erin Barbato!

https://www.washingtonpost.com/history/2020/04/18/unemployment-checks-great-depression-coronavirus/h

Michael S. Rosenwald writes in the WashPost:

A line to apply for unemployment benefits in San Francisco in 1938. (Library of Congress)

They first laid eyes on each other in torts class.

It was 1923, a period of prosperity before the Great Depression.

He was the son of Walter Rauschenbusch, a prominent theologian and key figure in the Social Gospel movement. She was the daughter of Louis Brandeis, the progressive Supreme Court justice and the most famous Jew in America. Each inherited their parents’ zeal for social justice.

At the University of Wisconsin Law School, these two idealists — Elizabeth Brandeis and Paul Raushenbush — noticed each other immediately. She was brainy and shy, her hair long and dark. He was handsome and outgoing. On hikes and canoe outings, they fell in love romantically and intellectually — a partnership instrumental in passing the nation’s first unemployment compensation law.

The story of how they did it is largely forgotten, but the 22 million people who have applied for unemployment during the coronavirus pandemic — and, of course, the millions before them — have this unlikely couple to thank. The law they conceived of and helped pass in Wisconsin laid the foundation for unemployment insurance throughout the country.

“Their story is absolutely staggering to think about right now,” said their grandson Paul Brandeis Raushenbush, a Baptist minister and senior adviser for public affairs and innovation at Interfaith Youth Core, a nonprofit organization. “It was their life’s work to make laws like this available to everyone.”

Raushenbush, who lives in New York, has spent the last few years writing a history of his family, including interviewing his father, Walter, who is 92 and lives in McLean, Va. Raushenbush was working on the unemployment insurance section as the coronavirus pandemic arrived in America.

Elizabeth Brandeis Raushenbush and Paul Raushenbush. (Courtesy of Paul Brandeis Raushenbush)

As part of his research, Raushenbush has been reading a privately published book his grandparents wrote based on interviews they gave to a Columbia University oral history project. The book is the story of the legislation — where the idea came from, the characters involved, how the law was ultimately passed.

“It really reads like a novel,” Raushenbush said.

The main characters, of course, are his grandparents.

And Wisconsin.

His grandmother moved there to attend law school. She had lost her job as a researcher for the D.C. Minimum Wage Board following the Supreme Court’s ruling that the minimum wage for women was unconstitutional. Justice Brandeis, who as a lawyer and jurist was renowned for his progressive stance on social issues, did not cast a vote because of his daughter’s job.

E.B., as she was known to family and friends, wanted a career at the intersection of economics, labor and the law. She hoped to attend an elite East Coast law school, but those programs, including Harvard, where her father studied, didn’t accept women. With her father’s approval, she chose the University of Wisconsin, where the “Wisconsin Idea” — fusing academic research to solving social problems — was flourishing.

“I have no doubt that the Wisconsin Law School is good enough for your purposes,” E.B.’s father wrote to her, “and should think it probable that you would find economics instruction, and doubtless, other considerations more sympathetic there than at Yale.”

Her future husband chose Wisconsin for the same reason. There, the couple studied under professor John R. Commons, an influential social economist who crafted Wisconsin’s workers’ compensation law. Commons tried and failed several times to pass legislation protecting unemployed workers, whose numbers were soaring, especially after the stock market crash in 1929.

Paul Raushenbush signing the paperwork for the first unemployment compensation check in 1936. (Courtesy of Paul Brandeis Raushenbush)

Commons took a particular interest in his graduate students, inviting them for regular dinners on Friday nights to discuss societal problems.

“I suppose the characteristic thing about Commons was that he was trying to use his brains and enlist the brains of his students in attempting solutions of economic problems,” Raushenbush said during the Columbia University oral history interviews. “This was no ivory tower guy. Sure, he did research and wrote books, but perhaps the main interest that attracted his students was that they were being invited to participate in an attempt to deal with difficult problems on an intelligent basis.”

By 1930, E.B. and her husband both were teaching economics at the University of Wisconsin. They had become friends with Philip La Follette, the local district attorney, whose parents were friends with Justice Brandeis. One day in June, La Follette invited the couple, along with another Wisconsin economist, Harold Groves, to his house in Madison.

La Follette told them he planned to run for governor, that he planned to win, and that he wanted to pass legislation instituting unemployment compensation. He asked the trio to come up with a plan.

And did they ever.

They spent the weekend hiking along the Wisconsin River batting around ideas. Their key idea — one that survives today — was that the benefits should be funded entirely by employers, thus giving them the incentive to maintain steady levels of employment or bear the cost of not doing so. The economists also decided that Groves, who grew up on a Wisconsin farm, should run for the State Assembly and introduce the legislation.

Everything clicked.

In 1932, Wisconsin Gov. Philip La Follette signs the nation’s first unemployment measure into law. Elizabeth Brandeis Raushenbush and Paul Raushenbush are second and third from the left. (Courtesy of Paul Brandeis Raushenbush)

The first unemployment check issued in Wisconsin. (Wisconsin Historical Society)

. . . .

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

Read the rest of the article in the WashPost at the link.

Scholarship, teamwork, creativity, hard work, and a healthy dose of romance produces results that are still “making a difference” today. Nice story! Beyond that, it’s an inspiring story for today’s world.

What if we had more folks like the Raushenbusches in government today? Folks looking for ways in which government could work to make the lives or ordinary working people better. Compare that with the “Trump Kakistocracy,” a bunch of self-centered incompetents mostly out to disable government, screw working folks, line their own pockets, glorify and suck up to their “Supreme Leader-Clown,” and shift blame for their mess, all while attempting to advance a destructive far-right political agenda that cares not for the public good! Then we had folks like Phil La Follette; now we have Stephen Miller!

Professor Walter Brandeis Raushenbusch, the son of Elizabeth & Paul, was on the faculty of U.W. Law when I was there from 1970-73. However, I never had him for a class. We did study the “LaFollette Era” and its contributions to President Roosevelt’s “New Deal” in several of my classes.

I believe that U.W. Law gave me a strong grounding in teamwork with my colleagues (now retired Wisconsin State Judge Thomas S. Lister was one), how to apply scholarship to achieve practical results, and solving complex problems.

Speaking with Judge Lister earlier this year during a “pre-lockdown” visit with his wife Sally to D.C., I could see how our time together at U.W. Law had a continuing profound influence on both of our careers, particularly the “judicial phases.” In our different ways, we were always striving to establish “best practices,” promote “good government,” and make the “system work better” for the public it served. Just like some of the “progressive ideas” that were interwoven with our legal education in Madison. “Teaching from the bench” was how I always thought of it. Sometimes we succeeded, other times not so much; but we were always “in there pitching,” even up to today. See, e.g., the “Lister-Schmidt Proposal” for an Auxiliary Judiciary for the U.S. Immigration Courts here: https://immigrationcourtside.com/2019/08/19/an-open-letter-proposal-from-two-uw-law-73-retired-judges-weve-spent-90-collective-years-working-to-improve-the-quality-delivery-of-justice-in-america/. We haven’t given up on this one!

Hon. Thomas Lister
Retired Jackson County (WI) Circuit Judge

And, the “Wisconsin Idea” is still alive and thriving at U.W. Law, thanks to dedicated professors like my good friend and fellow warrior for the “New Due Process Army,” Professor Erin Barbato, Director of the U.W. Immigrant Justice Clinic. Erin uses creative scholarship, teaches practical, usable, courtroom and counseling skills, promotes teamwork, and saves “real lives” in her work with asylum seekers and other migrants. She is also a role model who is inspiring a new generation of American lawyers committed to advancing social justice and guaranteeing Due Process and fundamental fairness for all. Indeed, Erin was a guest lecturer at my Georgetown Law class and inspired my students with her courage, energy, and real life examples of “applying law to save lives!” It really made the “textbook come alive” for my students! Thanks for all you do, Erin!

Professor Erin Barbato
Director, Immigrant Justice Clinic
UW Law

On Wisconsin!

Due Process Forever!

PWS

04-19-20

BLOWING THE BASICS: THE CONTINUING UGLINESS OF THE BIA’S FAILURE OF LEGAL EXPERTISE, JUDICIAL INDEPENDENCE, AND DECISIONAL INTEGRITY IS A “LICENSE TO KILL” MOST VULNERABLE AMONG US ☠️⚰️😰👎 — 3rd Cir. Says BIA Gets PSG Test Wrong, Fails To Apply Binding CAT Precedent, Distorts Facts to Engineer Wrongful Denial of Protection – “[W]e are troubled by the BIA’s apparent distortion of evidence favorable to Guzman in this case.” – Guzman Orellana v. Attorney General***

Dan Kowakski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/LegalNewsRoom/immigration/b/insidenews/posts/ca3-on-asylum-social-group-el-salvador-guzman-orellana-v-barr

CA3 on Asylum, Social Group, El Salvador: Guzman Orellana v. Barr

Guzman Orellana v. Barr

“We must now decide three issues: (1) whether persons who publicly provide assistance to law enforcement against major Salvadoran gangs constitute a cognizable particular social group for purposes of asylum and withholding of removal under the INA, (2) whether Guzman has established that he suffered past persecution on account of anti-gang political opinion imputed to him, and (3) whether the BIA correctly applied the framework we enunciated in Myrie v. Attorney General1 in denying Guzman relief under the CAT. For the reasons that follow, we hold that persons who publicly provide assistance against major Salvadoran gangs do constitute a particular social group, that Guzman has failed to meet his burden to show that imputed anti-gang political opinion was a central reason for the treatment he received, and that the BIA erred in its application of Myrie to Guzman’s application. Accordingly, we will vacate the BIA’s decision and remand this case for further proceedings on Guzman’s petition for relief from removal.”

[Hats off to J. Wesley Earnhardt Troy C. Homesley, III Brian Maida (ARGUED) Cravath, Swaine & Moore!]

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

*** I believe that the Third Circuit uses “Attorney General” rather than the name of the particular Attorney General in their immigration citation.

Before: RESTREPO, ROTH and FISHER, Circuit Judges. Opinion by Judge Roth.

Distortion of evidence and law happens all the time in this dysfunctional system now operated to deny basic due process and fundamental fairness to endangered individuals. Frankly, the Judges of the Third Circuit and other Courts of Appeals should be more than just “troubled” by the BIA’s legal incompetence and anti-immigrant decision-making. This isn’t just some “academic exercise.” The lives of innocent individuals are being put at risk by the ongoing fraud at EOIR under Barr!

This one-sided politically and prosecutorially-dominated charade of a “court system” is clearly unconstitutional under the Due Process Clause of the Fifth Amendment to our Constitution. Not everyone has the ability to appeal to the Circuit Courts and be fortunate enough to get a panel that actually looks critically at the case, rather than just “rubber stamping” the BIA’s decisions or giving them “undue deference” like all too many Article III Judges do. Most asylum seekers aren’t represented by Cravath, Swaine & Moore, one of America’s top law firms.

Indeed, many asylum applicants are forced by the Government to proceed without any counsel and don’t have the foggiest notion of what’s happening in Immigration Court. How would an unrepresented individual or a child challenge the Immigration Judge’s or the BIA’s misapplication of the “three-part test” for “particular social group?” How would they go about raising failure to apply the applicable Circuit precedent in Myrie v. Attorney General?

Even with the best representation, as was present in this case, under pressure from political bosses like Sessions, Whitaker, and Barr, Immigration Judges and BIA Appellate Judges constantly look for “reasons to deny” relief even where the case clearly has merit, as this one does! If against these odds, the respondent “wins,” or achieves something other than an outright “loss,” Barr can merely reach in and change the result to favor DHS Enforcement.

More outrageously, he can make that improper and unethical decision a so-called “precedent” for other cases. How totally unfair can a system get? Is there any other “court system” in America where the prosecutor or the opposing party gets to select the judges, evaluate their performance under criteria that allow for no public input whatsoever, and then change results at both the trial and appellate level? How is this consistent with Due Process or basic judicial ethics, both of which require a “fair, impartial, and unbiased decision-maker.” In the “real world,” the mere “appearance” of impropriety or bias is enough to disqualify a judge from acting. Here “actual (not apparent) bias” is institutionalized and actively promoted!

The ongoing legal, ethical, and Constitutional problems at EOIR are quite obvious. For the Article III Courts to merely “tisk tisk” without requiring that immigration adjudications comply with basic Constitutional, statutory, and ethical requirements is a disservice to the public that continues to demean and undermine the role of the Article III Courts as an independent judiciary.

Due Process Forever! Captive Courts & Complicit Judges, Never!

PWS

04-18-20

BLOWING THE BASICS: 4th Cir. Says BIA Got Nexus & Political Opinion Wrong in Guatemalan Asylum Case — Lopez-Ordonez v. Barr — The Facts Were Compelling, But The BIA Worked Hard to Wrongfully Deny Protection!

Dan Kowalski reports from LexisNexis Immigration Community:

https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/ca4-on-;-nexus-political-opinion-guatemala-lopez-ordonez-v-barr

CA4 on Asylum, Nexus, Political Opinion, Guatemala: Lopez Ordonez v. Barr

Lopez Ordonez v. Barr

“Hector Daniel Lopez Ordonez was conscripted into the Guatemalan military when he was 15 years old. As part of the G-2 intelligence unit, Lopez Ordonez was ordered— and repeatedly refused—to torture and kill people. After a particularly horrific incident in which Lopez Ordonez refused to murder a five-month-old baby and threatened to report the G-2’s abuses to human rights organizations, the G-2 confined him to a hole in the ground for ten months. Upon his release, he fled to the United States. Lopez Ordonez now petitions this Court to review an order from the Board of Immigration Appeals (“BIA”) denying his asylum application and ordering his removal to Guatemala. The BIA determined that Lopez Ordonez did not meet the nexus requirement to establish his eligibility for asylum—that is, he did not show past persecution on account of a statutorily protected ground. The record in this case, however, compels us to conclude that Lopez Ordonez has demonstrated that one central reason for his persecution by the Guatemalan military was his political opinion, a protected ground under the Immigration and Nationality Act (“INA”). Accordingly, we vacate the BIA’s nexus determination and remand for further proceedings.”

[Hats off to Samuel B. Hartzell!]

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

“Chief Judge Gregory wrote the opinion, in which Judge Wilkinson and Judge Wynn joined.”

Beneath the smokescreens of the uncontrolled backlog and gross mismanagement at EOIR lies an uglier truth. The BIA is a politically motivated tool of the Trump regime that puts reaching preconceived denials of protection ahead of Due Process and the fair application of asylum law.

This case should have been an easy grant, probably a precedent. By requiring the DHS, the Asylum Office, and Immigration Judges to follow a properly fair and generous interpretation of asylum law that would achieve its overriding purpose of protection, an intellectually honest BIA with actual legal expertise in applying asylum laws would force an end to the racially-driven intentional perversion of asylum laws and Due Process by the Trump regime.

More cases granted at a lower level would discourage the largely frivolous attempts to deny asylum engaged in by the DHS here. It would reduce the backlog by returning asylum and other protection grants to the more appropriate 60%+ levels they were at before first the Obama Administration and now the Trump regime twisted the laws and employed various coercive methods to encourage improper denials to “deter” legitimate refugees from Central America and elsewhere from seeking protection.

With fair access to legal counsel, many more asylum cases could be well-documented and granted either by the USCIS Asylum Office (without going to Immigration Court) or in “short hearings” using party stipulations. The ability to project with consistency favorable outcomes allows and encourages ICE Assistant Chief Counsel to be more selective in the cases that they choose to fully litigate. That encourages the use of stipulations, pre-trial agreements, and prosecutorial discretion that allows almost all other courts in America, save for Immigration Courts, to control dockets without stomping on individual rights.

It would also force all Administrations to establish robust, realistic refugee programs for screening individuals nearer to the Northern Triangle to obviate the need for the journey to the Southern border. Additionally, compliance with the law would pressure our Government to work with the international community to solve the issues causing the refugee flow at their roots, in the refugee-sending countries, rather than misusing the U.S. legal system and abusing civil detention as “deterrents.”

Due Process Forever! Captive “Courts” Never!

PWS

04-18-20

CATHERINE RAMPELL @ WASHPOST: “Dreamers” Are In The Front Lines Of Essential Workers — Why Is The Regime Persecuting Them?

https://www.washingtonpost.com/opinions/the-dreamers-are-an-essential-part-of-our-covid-19-response/2020/04/16/9514d2e0-8022-11ea-9040-68981f488eed_story.html

Catherine writes:

NEW YORK — Dr. P. has to be reminded to take breaks during her 12-hour emergency-room shifts — to drink water so she doesn’t get dehydrated; to go to the bathroom; even just to breathe for a few minutes alone, unencumbered by layers of sweaty, suffocating personal protective equipment.

It can be hard to remember to pause because there’s too much to do. Too many patients, everywhere, wheezing and gasping for air. Even before the ER was overwhelmed, she had been reluctant to step away. In mid-March, as patients were surging into emergency departments, she requested to cancel some scheduled time off.

“I asked to keep working, rather than just sit at home and do nothing,” she said. “It’s a helpless feeling sitting at home, knowing that things are getting worse at the hospital.”

But if the Supreme Court lets the Trump administration have its way, she might have to stop her lifesaving work, permanently.

[[Full coverage of the coronavirus pandemic]]

P. is a “dreamer,” one of the 825,000 unauthorized immigrants brought to the United States as children who have received protection under the Deferred Action for Childhood Arrivals program. (I’m using only her last initial because she fears attracting attention to her family, which is still undocumented.)

DACA, created by the Obama administration in 2012, shields these young immigrants from deportation and allows them to work. An estimated 29,000 are health-care workers like P. and on the front lines of the coronavirus pandemic.

After the Trump administration announced in 2017 that it planned to terminate the program, one of the more prescient outcries came from the medical community. In a Supreme Court filing, a consortium of medical colleges and aligned groups warned that the industry depends heavily on not just immigrant workers but specifically on DACA recipients, and that ending DACA would weaken the country’s ability to respond to the next pandemic.

[[Sign up for our Coronavirus Updates newsletter to track the outbreak. All stories linked in the newsletter are free to access.]]

For now, those who had DACA protections before the legal battles began are able to continue renewing them while the courts deliberate. For people such as P. — and the patients who rely on her care — this has been a godsend, if an imperfect one given her career choice.

The education and training required to become a doctor are an exceptionally long undertaking, and DACA offers only two years of protections before renewal is required (though it was never guaranteed). There was always a chance she might not be able to actually practice medicine after years of schooling and taking on hundreds of thousands of dollars in student debt.

Still, P. committed herself to finding a way to become a doctor. She applied for and received DACA status, completed college (in three years, to save money) and persuaded a highly ranked medical school to give its first-ever slot to a dreamer.

She’s in her first year of residency in emergency medicine. Each day, after she takes off her protective gear and attempts to wash off both “the virus and the fear,” she goes home and worries about whether she will be allowed to complete her residency. Losing DACA would mean losing her ability to repay her loans, treat desperate patients, even stay in the only country she has ever known. She’s been here since age 2.

She’s on edge, waiting for the Supreme Court to decide whether the way the Trump administration ended DACA was lawful. Tremendous uncertainty surrounds the range of possible outcomes, from no changes at all to every DACA recipient losing protections immediately. In oral arguments last fall, Chief Justice John G. Roberts Jr. suggested terminating DACA would result in dreamers losing their work authorization but that deportation was not at issue; Trump administration officials have since made clear they are, in fact, reopening removal proceedings.

. . . .

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

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

The lower Federal Courts unanimously did the right thing here by protecting the Dreamers from irrational Executive overreach based on an invidious racially-tainted White Nationalist agenda and a transparently bogus legal rationale. There was no reason for the Supremes to even take the case. Dismissing the Government’s poorly reasoned, bad faith case against the Dreamers should be a “no brainer” for the Supremes. The lower court decisions provide numerous solid reasons for doing so.

Nevertheless, to date, J.R. and his GOP colleagues have yet to find a White Nationalist immigration policy by the Trump regime that they didn’t “greenlight.” If, as expected, they do it again here, the results for both America and the Dreamers will be horrendous.

Due Process Forever!

PWS

04-17-20

SPLC: U.S. District Court Judge Jesus Bernal Approves Nationwide Class Challenging Conditions in Gulag During Pandemic

DETAINED MIGRANTS WIN IN FEDERAL COURT: JUDGE GREENLIGHTS NATIONWIDE CLASS ACTION LAWSUIT

April 16, 2020

To make Press Center inquiries, email press@splcenter.org or call us at 334-956-8228.

Tens of thousands of immigrants denied medical care and disability accommodations by the federal government will have their day in court

RIVERSIDE, Calif. – A federal judge ruled today that a nationwide class action lawsuit against Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS) can proceed, greenlighting a challenge to ICE’s system-wide failure to provide standard medical and mental health care and disability accommodations for people in its custody.

U.S. District Court Judge Jesus Bernal issued the ruling in the lawsuit filed by the Southern Poverty Law Center (SPLC), Disability Rights Advocates (DRA), Civil Rights Education and Enforcement Center (CREEC), Orrick, Herrington & Sutcliffe LLP and Willkie Farr & Gallagher LLP. The plaintiffs seek zero monetary damages and instead only an end to the inhumane and traumatic experience of ICE detention affecting tens of thousands across the country.

Judge Bernal denied the government’s motion to divide the nationwide lawsuit into 15 individual cases in eight district courts. He also denied ICE’s motion to strike the 200-page complaint, which was filed in the U.S District Court for the Central District of California in August 2019.

The ruling comes amid the spread of Covid-19 in detention centers, a dangerous scenario that doctors and public health experts across the country have warned will only be made worse by ICE’s lack of pre-existing medical care and substandard detention center conditions. On March 25, the groups filed an emergency preliminary injunction motion in the case requiring ICE to immediately fix numerous deficiencies in its Covid-19 response, such as inadequate staffing, resources and oversight. The motion further seeks the immediate release of medically vulnerable people if ICE cannot or will not take immediate steps to protect those who are in its custody. Judge Bernal has yet to rule on that injunction.

“Today, the court rejected ICE’s false narrative that our plaintiffs’ stories represent just a few individual problems,” said Lisa Graybill, SPLC deputy legal director. “The court saw through ICE’s deliberate mischaracterization of our case. This is the first step in holding ICE to account for its appalling treatment of the tens of thousands of immigrants needlessly incarcerated and languishing in its prisons around the country.”

According to the lawsuit, ICE has failed to provide detained migrants in over 150 facilities nationwide with safe and humane conditions, as required by agency standards, federal law and the U.S. Constitution. Numerous reports, including accounts by internal government investigators, detail the lack of sufficient medical and mental health care treatment, ultimately resulting in untreated medical needs, prolonged suffering and preventable death. ICE’s punitive use of segregation violates the Fifth Amendment of the U.S. Constitution. The agency’s failure to ensure that detained immigrants with disabilities are provided accommodations and do not face discrimination violates Section 504 of the Rehabilitation Act of 1973.

“Mentally, they are killing us,” said plaintiff Ruben Mencias Soto. “What I am living and what I am seeing is not only my situation. This is unjust as a system. [The government] is falling to the lowest level with ICE.”

Mencias Soto, who has been detained at Adelanto ICE Processing Center in California for over a year, has dislocated and herniated discs in his back. He has had his wheelchair and crutches taken away by detention staff, leaving him without a device to help him walk and causing immense pain.

“Across the country, ICE continually fails to provide basic medical care and necessary disability accommodations to people in immigration detention – putting thousands of people in life-threatening danger every day. From holding people with disabilities in solitary confinement solely because of their medical needs to denying patients in detention doctor-ordered emergency medical care, ICE has demonstrated incompetence and cruelty toward people with disabilities. Disability Rights Advocates is committed to fighting for the civil rights of those in custody until ICE complies with U.S. law,” said Stuart Seaborn, Managing Director of Litigation, Disability Rights Advocates.

“ICE’s failure to ensure that private prison companies like the GEO Group adequately take care of people in their custody has been an open secret for a long time,” said Timothy Fox, co-executive director of the Civil Rights Education and Enforcement Center. “We are pleased that the court will allow us to move forward and hopefully end the impunity with which this agency and its private operators have been acting for too long.”

Plaintiff Jose Baca Hernandez underscored that the goal of the case is to “improve health for me and the rest of the people here [in detention]. This is not only for me. It’s so everyone here can be healthy.” During his time in custody, ICE failed to provide Baca Hernandez–a blind man–with effective communication. He has been forced to rely on his cellmates, attorneys, and guards to read documents, including those related to his medical care and immigration case.

Plaintiff Luis Rodriguez Delgadillo, who has schizophrenia and bipolar disorder, had reached a considerable measure of mental health stability before his detention. In detention, however, his shifting medication regime, lack of therapy and the failure of mental health staff to mitigate stressors have caused his mental health to noticeably decline.

This case is about fighting to ensure “we all can get better treatment,” Rodriguez Delgadillo said. “Some people don’t have the means or are scared to speak, so we fight for everyone else.”

The parties will work with the court to set the schedule for the litigation of the case.

See plaintiffs’ opposition to defendants’ motion to sever and dismiss, transfer actions, and strike portions of the complaint here.

See the complaint here and all other filings in the case here.

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

What if we had a Government that “did the right thing” without being sued?

Due Process Forever!

PWS

04-17-20

HEAR IT FROM AN EXPERT: Trump’s Illegal Obliteration of Asylum Law Part of The Demise of The Rule of Law In America! — Professor Lucas Guttentag Eviscerates Trump’s Scofflaw Action!

https://www.justsecurity.org/69640/coronavirus-border-expulsions-cdcs-assault-on-asylum-seekers-and-unaccompanied-minors/

Lucas writes in Just Security:

The Trump administration’s novel COVID-19 border ban invokes public health authority to erect a shadow immigration enforcement power in violation of the Refugee Act, legal safeguards for unaccompanied minors, and fundamental procedural rights. Relying on an obscure 1944 provision that provides no authority for immigration removals, the Centers for Disease Control purports to authorize summary Border Patrol expulsions of asylum seekers.

On March 20, the Centers for Disease Control (“CDC”) issued a largely unnoticed but sweeping order authorizing the summary expulsion of noncitizens arriving at the border without valid documents. The Order operates wholly outside the normal immigration removal process and provides no opportunity for hearings or assertion of asylum claims. It deploys a medical quarantine authorization to override the protections of the immigration and refugee laws through the use of an unreviewable Border Patrol health “expulsion” mechanism unrelated to any finding of disease or contagion.

How the COVID-19 Expulsion Policy Works

The CDC Order is based on an emergency Department of Health and Human Services (HHS) Interim Final Rule issued simultaneously with the Order under the authority of an obscure provision of the 1944 Public Health Service Act. Section 362 of that Act authorizes the Surgeon General to suspend “introduction of persons or goods” into the United States on public health grounds. Based on an unprecedented interpretation of the 1944 Act, the CDC regulation invokes the COVID-19 pandemic to redefine what constitutes “introduction of persons” and “introduction of communicable diseases” into the United States. It establishes a summary immigration expulsion process that ignores the statutory regime governing border arrivals and disregards the protections and procedures mandated by the 1980 Refugee Act and Refugee Convention as well as the special safeguards for unaccompanied minors under the Trafficking Victims Protection Reauthorization Act (“TVPRA”).

The CDC Order “suspending introduction of certain persons” applies to land travel from two countries, Mexico and Canada, and only to those noncitizens defined as “covered aliens.” That definition is unrelated to infection or disease. It includes only those who arrive by land without valid travel documents and immediately “suspends” their “introduction” for a renewable period of 30 days. In actuality the Order singles out those who seek asylum – and children – to order them removed to the country from which they entered or their home country “as rapidly as possible.” A recently leaked Customs and Border Protection directive makes clear that expulsion is the goal and that no process is provided.

The Order’s stated rationale is the risk alleged from “covered aliens” being crowded in “congregate settings.” The apparent justification for bypassing all legal protections and procedures is the CBP’s assertion that Border Patrol officers are “not operating pursuant to” their authority under the immigration laws.

This shadow immigration expulsion regime is not part of some coherent public health or safety plan to seal our borders or to diminish the risk of COVID-19’s introduction into the U.S. A web of other proclamations and restrictions leave open many avenues for other travelers to enter the United States. The risk of processing in congregate settings is a function of DHS’s own practices and policies; it is also not unique to land borders.

The CDC order is designed to accomplish under the guise of public health a dismantling of legal protections governing border arrivals that the Trump administration has been unable to achieve under the immigration laws. For more than a year, the administration has sought unsuccessfully to undo the asylum system at the southern border claiming that exigencies and limited government resources compel abrogating rights and protections for refugees and other noncitizens. The courts have rebuffed those attempts in critical respects. Now the administration has seized on a public health crisis to impose all it has been seeking – and more.

Unquestionably, the United States faces a pandemic of unknown scope and duration that has led to the greatest social and economic disruption and restrictions on personal movement in our lifetime. The hospital and healthcare system is under siege and threatened with collapse in some areas. Infected persons can be asymptomatic and may not be detected. The addition of contagious individuals can exacerbate spread of the virus, place additional strains on hospitals, pose dangers to healthcare workers and law enforcement officers, and increase the risk of infection for others.

But the COVID-19 ban is an act of medical gerrymandering. It is crafted to override critical legal rights and safeguards in singling out only those arriving at the border without authorization and deeming that class of people a unique and unmitigable public health threat. It tries to justify an end-run around congressionally mandated procedural rights and protections essential for refugees and unaccompanied minors and it does so to achieve an impermissible goal. What’s additionally shocking here: the statutory provision does not actually give the executive branch expulsion authority.

. . . .

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

Read the rest of Lucas’s “mini treatise” at the above link.

The law is clearly against Trump here, as Lucas so eloquently and cogently sets forth. But, that doesn’t necessarily mean much in an era of a feckless GOP-stymied Congress and an authoritarian-coddling righty Supremes’ majority led by Roberts and his four sidekicks.

The Supremes have delivered a strong message to the lower Federal Courts that Trump can do just about anything he wants to migrants. He just has to invoke some transparently bogus “national security” or “emergency” rationale for ignoring the Constitution and statutes.

It’s “Dred Scottification” in full force. Largely the same way the courts buried the rights and humanity of African Americans to enable a century plus of “Jim Crow” following the end of the Civil War. The “law of the land” just became meaningless for certain people and in certain jurisdictions. “Any ol’ justification” — states’ rights, separate but equal, no jurisdiction, etc. — was more than enough to read Africans-American citizens out of their Constitutional and other legal protections.

Don’t kid yourself. That’s exactly what Trump, the GOP, and the Supremes’ majority are up to here.

And, the amazing thing, here in 21st Century America, they are getting alway with it! In plain sight!

This November, Vote Like Your Life Depends On It! Because It Does!

PWS

04-13-20

“MALICIOUS INCOMPETENCE” IS COSTLY: In a Functioning System, DHS Would Release As Many Detainees As Possible Applying “Best Health Guidance” & EOIR Judges Would Insure Prompt, Uniform Compliance By DHS – Under Today’s Totally Dysfunctional System, It Rests With Private Attorneys & U.S. District Judges Across America To Do The Job That DHS & EOIR Won’t – Not Surprisingly, The Results Are Expensive, Time-Consuming, & Uneven!

Andrea Castillo
Immigration Reporter
LA Times

https://edition.pagesuite.com/popovers/dynamic_article_popover.aspx?guid=910bd5e6-d0d0-4291-af81-af2ba51ed37d&v=sdk

Andrea Castillo and Brittny Mejia report for the LA Times:

For weeks, as the coronavirus spread, Jose Hernandez Velasquez worried about the dangers of being detained inside the Adelanto ICE Processing Center 80 miles east of Los Angeles.

The 19-year-old Guatemalan immigrant listened uneasily as other men called their families, begging them to do everything possible to get them released so as to reduce their odds of contracting the deadly illness.

Ultimately, in light of the pandemic, a federal judge ordered immigration authorities to release Hernandez, an asylum seeker with hypertension who had spent nearly 21/2 years at the facility. When a guard came to tell him the news, Hernandez was speechless. Other detainees burst into applause.

“I was really worried,” he said in a phone call after his release. “It was so difficult to be inside.”

As an increasing number of Immigration and Customs Enforcement detainees across the country test positive for COVID-19, California lawyers are working to free as many clients as they can by invoking constitutional rights and arguing on humanitarian grounds. In the last two weeks, U.S. District Judge Terry Hatter Jr. ordered at least 10 people released from Adelanto, one of the country’s largest detention centers, holding nearly 2,000 people.

It’s unclear how many detainees have been released nationwide because of coronavirus concerns. In recent weeks, federal judges across the country have ordered the release of more than 40 detainees.

Like Hernandez, most have been released after lawyers petitioned federal courts on their behalf. Others have been released on bond or through humanitarian parole, which is free to people with a compelling emergency.

In response to the pandemic, ICE has instructed field offices to assess and consider for release those deemed to be at greater risk of exposure, reviewing cases of individuals age 60 and older, as well as those who are pregnant.

In court filings, ICE has argued that concern about detainees contracting COVID-19 is “based on mere speculation” and that releasing large numbers of them would set a precedent that would persist even after the virus subsides.

Until ICE agrees to release more detainees, “you’re going to keep seeing petitions like this,” said Jessica Bansal, senior staff attorney at the American Civil Liberties Union of Southern California, which got Hernandez and others released from Adelanto. “Because people need to get out.”

The ACLU has sued ICE facilities in multiple states over coronavirus concerns.

. . . .

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

Read the rest of the article at the above link.

Empowering a regime that functions in such a contemptuous, cruel, and incompetent manner is insane and wasteful to boot. Everyone, including the legitimate needs of DHS enforcement (not much resemblance to the current racially-driven scofflaw mess) would benefit from a professionalized, accountable, and properly focused DHS and an independent, due process with efficiency-oriented U.S. Immigration Court.

Immigration enforcement could focus on priorities that actually relate to the safety and security of our nation, the private and NGO immigration bar could expand individual case representation before the Immigration Courts thus promoting efficiency with due process, and the U.S. District Courts could return to other cases. It would be a win-win-win, notwithstanding the bogus blather of the White Nationalist restrictionists who seek to use the pandemic as a weapon to “zero out” legal immigration and force all migration into the “black market” where it can more easily be exploited and abused by them and their cronies.

Due Process Forever! Malicious Incompetence Never!

PWS

04-13-20

AMERICA’S ASYLUM DISGRACE: Due Process, Rule of Law, Human Values Die Under Trump’s Scofflaw White Nationalism

https://www.washingtonpost.com/opinions/at-the-us-mexico-border-trump-weaponizes-the-pandemic/2020/04/12/d49056c2-7b6a-11ea-b6ff-597f170df8f8_story.html

From the WashPost Editorial Board:

ENSHRINED IN law for four decades, the system that allows persecuted migrants to seek refuge in the United States has survived sustained assaults since the Trump administration took office. Now Mr. Trump, having weaponized a public health crisis to ignore long-established statutes, rules and procedures, has finally managed to crush it.

For the past three weeks, virtually every category of migrant without papers has been turned back at legal ports of entry along the southern border or expelled immediately upon apprehension by border agents; 10,000 have been thrown out so far in the crisis. They include minors who may have been trafficked and asylum seekers, individually or in families, who may face persecution in their home countries. Immigration courts are suspended, deportation procedures have been ditched, and due process is a thing of the past.

For years, President Trump has disparaged unauthorized migrants as disease carriers, with paltry evidence. Now he justifies the brutal measures, imposed March 21, by insisting that in the midst of a pandemic, migrants could ignite a “perfect storm” of contagion that would endanger border agents, the health-care system and the public. “Left unchecked,” he warned, they could even “cripple our immigration system” — the very immigration system he has tried by every means to dismantle since taking office.

[[Full coverage of the coronavirus pandemic]]

The evidence for that is, so far, scant; a hundred times more people have tested positive for the coronavirus in the United States than in Mexico, El Salvador, Honduras and Guatemala combined — the countries of the overwhelming majority of migrants at the southern border. That adds weight to the suspicion that Mr. Trump, contemptuous of what he calls “the worst immigration laws ever,” is obliterating them through the legally dubious means of a health emergency measure enacted in 1944.

It is reasonable in the face of this pandemic to exercise extreme caution in screening those who are admitted to the United States, and even barring most foreign travelers from Western Europe and China, some of the world’s most ravaged regions. It’s a different thing to impose a systematic, draconian, extralegal regime, one never contemplated by Congress, whose effect is to ignore and override 40 years of asylum and immigration law.

Mr. Trump had severely tightened asylum procedures before the pandemic but had not, and could not, expunge the possibility that migrants with reasonable asylum claims could apply and be heard in court. Respecting those asylum procedures, like respecting civil liberties, presents few challenges during prosperity and peacetime. It is more difficult, and requires political courage, when the country is reeling economically, and on what amounts to a war footing, as it is today.

Yet it is precisely in times of emergency that any country faces its most severe tests — ones that call into question the nation’s essential character and values. It shames itself when it fails to live up to those qualities and values, as the United States did when it forcibly imprisoned more than 100,000 Japanese Americans in internment camps during World War II. That is what Mr. Trump is doing now by betraying this country’s long tradition as a beacon to those fleeing oppression.

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

Four decades of progress, uneven and imperfect as it was, in implementing the Refugee Act of 1980 undone in less than four years. Notably, Trump obliterated the Act without Congressional participation. Also, he took advantage of the Supremes failure to force the Executive to comply with the letter and spirit of its landmark 1987 decision in INS v. Cardoza-Fonseca establishing a generous, humanitarian reading of the “well-founded fear” standard for asylum seekers under the Refugee Act of 1980. When the Executive can simply eliminate laws he doesn’t like without Congress and without effective resistance from the Supremes, democracy is definitely on the ropes.

The “mainstream media” is finally picking up on what the “New Due Process Army” and Courtside have been saying for the better part of three years. And, the dissolution of American democracy started with the assault on immigration and refugee laws. But, it won’t end there unless we vote the regime out in November and start rebuilding an America that honors Due Process, the rule of law, competency, and the dignity and rights of all humans.

Due Process Forever! Vote Like Your Life Depends on It! Because, It Does!

PWS

04-13-20

Due Process Forever!

Related posts:

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

Related posts:

Due Process Forever! Deadly ☠️ Clown Courts, 🤡 Never!

Related posts:

Related posts:

Due Process Forever! White Nationalist Scams Never!

Related posts:

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

Related posts:

By Paul Wickham Schmidt

Courtside Exclusive

Due Process Forever. The White Nationalist Kakistocracy Never!

Related posts:

On Wisconsin!

Due Process Forever!

Related posts:

Due Process Forever! Captive Courts & Complicit Judges, Never!

Related posts:

Due Process Forever! Captive “Courts” Never!

Related posts:

Due Process Forever!

Related posts:

Due Process Forever!

Related posts:

This November, Vote Like Your Life Depends On It! Because It Does!

Related posts:

Due Process Forever! Malicious Incompetence Never!

Related posts:

Due Process Forever! Vote Like Your Life Depends on It! Because, It Does!

Related posts: