Fifth Amendment – Page 182 – immigrationcourtside.com

WHAT’S TRUMP REALLY UP TO ON DACA? — NOBODY SEEMS TO KNOW — CNN’S TAL KOPAN REPORTS!

http://www.cnn.com/2017/10/09/politics/congress-daca-reaction-white-house-trump/index.html

Tal reports:

“Washington (CNN)The Trump administration dropped a potential bomb into negotiations on the future of the Deferred Action for Childhood Arrivals policy on Sunday night — but key players on the Hill still aren’t sure yet whether the fuse is actually lit.

Reaction to the administration’s priorities list of tough border security and immigration enforcement measures ranged from dismissal as “noise,” to skepticism about the President’s commitment level, to declarations of it being a “nonstarter” by Democrats.
Ultimately, most agree, President Donald Trump himself will have to say what his red lines are.
The White House late Sunday released a wish list of items for any potential deal to preserve DACA — the Obama administration policy that protects young undocumented immigrants brought to the US as children from deportation. Those measures include provisions to make it harder for unaccompanied minors to enter the country illegally, money for the President’s border wall and cuts to legal immigration.
But the administration is already sending mixed messages about how intensely it is getting behind the list of priorities, which were developed in part by Stephen Miller, a White House policy adviser and longtime immigration hardliner.
An administration source told CNN that it was too early to tell whether the priorities are a firm line in the sand, saying there remains a “White House divided” on the issue — but emphasizing Trump “still wants to cut a deal.”
On a call with reporters on Sunday night, a senior administration official declined to say whether the list should be read as a veto threat.
“We’re not discussing what’s a veto threat right now, or we’re not looking to negotiate with ourselves,” the official said, adding the priorities are “all important.”
On Capitol Hill, most players are taking a wait-and-see approach.
White House lays out DACA deal asks
White House lays out DACA deal asks
House Speaker Paul Ryan’s office was noncommittal. “The House immigration working group will review these principles and continue to consult with our conference and the administration to find a solution,” spokesman Doug Andres said.
Other sources pointed to the timing of the release — the Sunday night before a federal holiday — as a possible indication the White House is not as serious about the list.
“Like they’re trying to bury it,” one congressional aide said. Administration sources, for their part, said the list had been in the works for some time and was simply ready to be released.
A Republican consultant familiar with the discussions on the Hill about DACA downplayed the release altogether as “noise” — saying not much matters until the date draws nearer to December 8, when government funding runs out and any potential shutdown talk could get serious if progress hasn’t been made.
“I just don’t take this as that serious a proposal,” the consultant said. “One given what’s in there, that it’s everything under the sun. And two, when they released it.”
At the same time, one senior Democratic aide called it “most disheartening” that in the letter Trump sent to congressional Democratic leadership, he said the list “must” be passed.
Miller’s involvement has been a source of frustration for some negotiators on both sides of the aisle who have perceived him as trying to scuttle talks.
Top WH aide's DACA demands threaten to scuttle legislative fix
Top WH aide’s DACA demands threaten to scuttle legislative fix
“This isn’t an opening bid that anyone’s going to respond to,” said Jeremy Robbins, executive director of New American Economy, a nonpartisan group, business-linked group backed by former Mayor Mike Bloomberg that advocates for moderate immigration policies. “There’s just this laundry list of deal breakers, each one of which is a poison pill in its own right. … But that doesn’t change the fact that the President, if he wants to protect Dreamers and get some border security, he can do that today.”
Hill work continues
Sources familiar with negotiations in Congress say they have been progressing slowly.
According to multiple sources familiar, the working group organized by Ryan, which includes key Republicans on different sides of the ideological spectrum, has met at least four times. The bare bones of a deal have yet to take shape, the sources said.
Further details remain on close hold. Members and their staffs have agreed to maintain silence on the substance of the discussions to avoid negotiations leaking to the press.
On the Senate side, sources familiar say conversations are happening, mostly among staff, but the process is less formal than on the House side.
One-quarter of DACA renewals not in on deadline day
Democrats maintain substantial leverage in the negotiations. Not only would any immigration deal require Democratic votes to pass — both to clear the 60-vote filibuster threshold in the Senate and to make up for Republican holdouts who would never support a DACA fix — but Democrats are already signaling they could withhold support for must-pass bills like government funding if progress isn’t made.
“That is definitely on the table, and we are working to make sure that it’s not just a Hispanic Caucus effort, but it’s the entire Democratic caucus,” said Congressional Hispanic Caucus Chairwoman Michelle Lujan Grisham in a CHC call with reporters on Monday. “If we can’t get movement on a productive strategy that gives us a vote — and we’re open to considering reasonable, effective border security issues — then yes, … we’re going to use every leverage point at our disposal.”
A deal is still attainable, added Vice Chairman Joaquin Castro, but only if the White House is “reasonable.”
“This was a long laundry list of hardline immigration policies including things that we’ve specifically said our members cannot support, including a wall,” Castro said. “So we’re looking for a serious proposal from the President. This is not serious. … I would suggest the President look at this list more himself, get more personally involved, rather than assign it to a 30-year-old hardline zealot,” he added, referring to Miller.”

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Any idea promoted by Miller has to be bad for America!

PWS

10-10-17

NEW FROM THE HILL: N. RAPPAPORT SAYS “NO” TO MOST OF CAL SB 54, BUT WOULD LIKE TO FIND A COMPROMISE LEGISLATIVE SOLUTON TO HELP DREAMERS AND OTHER UNDOCUMENTED RESIDENTS!

http://www.huffingtonpost.com/entry/59dad902e4b08ce873a8cf53

In encourage you to go over to The Hill at the above link and read Nolan’s complete article. As always, whether you agree with Nolan or not, his articles are always thought-provoking and timely. Nolan is definitely a “player” in the immigration dialogue! (And, frankly, by going over to The Hill, Nolan gets a few more “hits” which give him a few more “hard-earned nickels” in his pockets. Gotta help out my fellow retirees!)

I can agree with Nolan’s bottom line:

“It would be better to help undocumented aliens by working on comprehensive immigration reform legislation that meets essential political needs of both parties.”

The challenge will be figuring out what those points might be. So far, the GOP “Wish List” is basically an “incendiary White Nationalist screed” drafted by notorious racist xenophobe Stephen Miller (probably with backing from Sessions and certainly incorporating parts of Steve Bannon’s alt-right White Nationalist world view) that contains virtually nothing that any Democrat, or indeed any decent person, could agree with. Indeed, the very involvement of Miller in the legislative process is a “gut punch” to Democrats and whatever “moderate GOP” legislators remain.

What are some “smart enforcement” moves that Democrats could agree with: more funding for DHS/ICE technology; improvements in hiring and training for DHS enforcement personnel; U.S. Immigration Court reforms; more attorneys and support (including paralegal support) for the ICE Legal Program; more funding for “Know Your Rights” presentations in Detention Centers.

But more agents for “gonzo enforcement,” more money for immigration prisons (a/k/a the “American Gulag”), and, most disgustingly, picking on and targeting scared, vulnerable kids seeking protection from harm in Central America by stripping them of their already meager due process protections: NO WAY!

Although “The Wall” is a money wasting folly with lots of negative racial and foreign policy implications, it probably comes down to a “victory” that Democrats could give to Trump and the GOP without actually hurting any human beings, violating any overriding principles of human rights law, or diminishing Constitutional Due process. It also inflicts less long-term damage on America than a racially-oriented “point system” or a totally disastrous and wrong-headed decrease in legal immigration when the country needs the total opposite, a significant increase in legal immigration opportunities, including those for so-called “unskilled labor.”

While this GOP Congress will never agree to such an increase — and therefore workable “Immigration Reform” will continue to elude them — the Democrats need to “hold the line” at current levels until such time as Americans can use the ballot box to achieve a Congress more cognizant of the actual long-term needs of the majority of Americans.

PWS

10-09-17

HOW THE TRUMP-SESSIONS-MILLER-HOMAN FALSE NARRATIVE ON “SANCTUARY CITIES” & THE BOGUS “ALIEN CRIME WAVE” UNDERMINES LEGITIMATE LAW ENFORCEMENT AND ENDANGERS AMERICA! — “They’re afraid of us. And the reason they’re afraid of us is because they think we’re going to deport them. They don’t know that we don’t deport them; we don’t ask for their immigration status,” he said. “They just gotta go based on what they see on social media and what they hear from other people.”

http://enewspaper.latimes.com/infinity/latimes/default.aspx?pubid=50435180-e58e-48b5-8e0c-236bf740270e

James Queally reports for the LA Times:

“The woman on the other end of the line said her husband had been beating her for years, even while she was pregnant.

She was in danger and wanted help, but was in the country illegally — and was convinced she would be deported if she called authorities. Fearful her husband would gain custody of her children, she wanted nothing to do with the legal system.

It is a story that Jocelyn Maya, program supervisor at the domestic violence shelter Su Casa in Long Beach, has heard often this year.

In the first six months of 2017, reports of domestic violence have declined among Latino residents in some of California’s largest cities, a retreat that crisis professionals say is driven by a fear that interacting with police or entering a courthouse could make immigrants easy targets for deportation.

President Trump’s aggressive stance on illegal immigration, executive orders greatly expanding the number of people who can be targeted for deportation and news reports of U.S. Customs and Immigration Enforcement agents making arrests at courthouses have contributed to the downturn, according to civil liberties and immigrant rights advocates.

In Los Angeles, Latinos reported 3.5% fewer instances of spousal abuse in the first six months of the year compared with 2016, while reporting among non-Latino victims was virtually unchanged, records show. That pattern extends beyond Los Angeles to cities such as San Francisco and San Diego, which recorded even steeper declines of 18% and 13%, respectively.

Domestic violence is traditionally an under-reported crime. Some police officials and advocates now say immigrants without legal status also may become targets for other crimes because of their reluctance to contact law enforcement.

The Long Beach abuse victim, fearing she had no other recourse, sent her oldest children back to Mexico to live with relatives.

“We’re supposed to be that assurance that they don’t have. That safety net,” Maya said. “But it’s getting harder for us to have a positive word for them and say: ‘It’s going to be OK. You can go into a courtroom. You can call the police.’ ”

Los Angeles County sheriff’s Deputy Marino Gonzalez said he addresses such apprehension frequently as he patrols the streets of East L.A. — even though his department doesn’t question people about their immigration status.

“They’re afraid of us. And the reason they’re afraid of us is because they think we’re going to deport them. They don’t know that we don’t deport them; we don’t ask for their immigration status,” he said. “They just gotta go based on what they see on social media and what they hear from other people.”

On a warm afternoon, Gonzalez pulled his cruiser to a stop near a row of apartments in Cudahy, ahead of a community meeting in a predominantly Spanish-speaking neighborhood. There was a lone woman waiting for Gonzalez and a few other deputies, offering lemonade to passersby.

The mood in the city was tense. The night before, a pro-Trump demonstrator protesting the city’s sanctuary status had been arrested on suspicion of brandishing a gun. Gonzalez and city officials went door-to-door, flashing smiles and speaking Spanish to residents, urging them to attend the meeting.

Gonzalez spoke calmly to the assembly of several dozen people sipping from Styrofoam cups.

“We’re not here to ask you where you’re from,” he said in Spanish, drawing thankful nods.

Gonzalez, who came to the U.S. from Mexico as a child, said he knows why people are scared, but hopes face-to-face conversations will persuade more victims to come forward.

“The community here, they don’t know, and they won’t know, unless we reach out,” he said.

ICE officials also said they do not target crime victims for deportation and, in fact, often extend visas to those who report violent crime and sexual abuse.

Officials in the agency’s Los Angeles office declined to be interviewed. ICE issued a statement dismissing links between immigration enforcement and a decline in crime reporting among immigrants as “speculative and irresponsible.”

The drop in reporting could result from an overall decrease in domestic violence crimes, the agency said. But police statistics reviewed by The Times suggest that statement is inaccurate. The decline in domestic violence reports among Latinos in several cities is far steeper than overall declines in reporting of those crimes.

In Los Angeles and San Diego, reporting of domestic violence crimes remained unchanged among non-Latinos. The decline among Latinos in San Diego was more than double the overall citywide decrease, records show. In San Francisco, the reporting decline among Latinos was nearly triple the citywide decrease.

The pattern extends outside California.

In April, Houston police Chief Art Acevedo said the number of Latino victims reporting sexual assault had dropped 42% in his city. In Denver, at least nine women abandoned pursuit of restraining orders against their abusers after immigration enforcement agents were filmed making an arrest in a city courthouse earlier this year, according to City Atty. Kristi Bronson.

Claude Arnold, who oversaw ICE operations in Southern California from 2010 to 2015, said misconceptions about the agency may be driving the downswing. Crime victims are far more likely to receive a visa application than a removal order by reporting an attack, he said.

“ICE still has a policy that we don’t pursue removal proceedings against victims or witnesses of crime, and I haven’t seen any documented instances where that actually happened,” he said. “To a great degree, we facilitate those people having legal status in the U.S.”

Nationwide, the number of arrests made by ICE agents for violations of immigration law surged by 37% in the first half of 2017. In Southern California, those arrests increased by 4.5%.

Arnold said some immigrants’ rights activists have helped facilitate a climate of fear by spreading inaccurate information about ICE sweeps that either didn’t happen, or were in line with the Obama administration’s policies.

But professionals who deal with domestic violence victims say the perception of hardcore enforcement tactics under Trump has led to widespread panic.

Adam Dodge, legal director at an Orange County domestic violence shelter called Laura’s House, said that before February, nearly half of the center’s client base were immigrants in the country illegally. That month, ICE agents in Texas entered a courthouse to arrest a woman without legal status who was seeking a restraining order against an abuser.

“We went from half our clients being undocumented, to zero undocumented clients,” he said.

A video recording earlier this year of a father being arrested by ICE agents moments after dropping his daughter off at a Lincoln Heights school had a similar effect on abuse victims in neighboring Boyle Heights, said Rebeca Melendez, director of wellness programs for the East L.A. Women’s Center.

“They instilled the ultimate fear into our community,” she said. “They know they can trust us, but they are not trusting very many people past us.”

Even when victims come forward, defense attorneys sometimes use the specter of ICE as a weapon against them, to the frustration of prosecutors.

In the Bay Area, a Daly City man was facing battery charges earlier this year after flashing a knife and striking the mother of his girlfriend, according to court records. The man’s defense attorney raised the fact that the victim was in the country illegally during pretrial hearings, although a judge eventually ruled that evidence was irrelevant and inadmissible at trial, records show.

The case ended in a hung jury. But when prosecutors sought a retrial, the victim said she would not cooperate, in part, because her immigration status was raised during the trial, said Max Szabo, a spokesman for the San Francisco district attorney’s office.

San Francisco Dist. Atty. George Gascon said the case was one of several where his prosecutors felt defense attorneys sought to leverage heightened fears of deportation against victims. He believes that tactic, combined with ICE’s expanded priorities and presence in courthouses, is driving down domestic violence reporting among immigrants in the city’s sprawling Latino and Asian communities.

Gascon described the situation as a “replay” of the fear he saw in the immigrant community while he was the police chief in Mesa, Ariz., during notorious Maricopa County Sheriff Joe Arpaio’s crusade against people without legal status, which led to accusations of racial profiling.

Stephanie Penrod, managing attorney for the Family Violence Law Center in Oakland, also said the number of immigrants without legal status willing to seek aid from law enforcement has dwindled.

Abusers frequently will threaten to call immigration enforcement agents on their victims, a threat Penrod believes has more teeth now given ICE’s increased presence in courthouses.

“The biggest difference for us now is those threats are legitimate,” she said. “Previously we used to advise them we couldn’t prevent an abuser from calling ICE, but that it was unlikely ICE would do anything.”

If the problem persists, Gascon fears the consequences could be deadly.

“The level of violence increases,” he said. “It could, in some cases, lead to severe injury or homicide.”

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ICE, of course, denies this is happening. But, as shown by this article, the denials simply are refuted by the facts (as shown in the above charts) and by the officers and social services agencies who actually deal with the community. We simply can’t trust any statement on immigration emanating from the Trump Administration. They lack credibility. Something that is going to be a long term problem for ICE once immigration enforcement is finally “normalized.” Once lost, trust is unlikely to be regained any time soon. “Gonzo” enforcement does long-term irreparable damage. That’s why so many communities are resisting the Trump Administration program.

PWS

10-09-17

CNN’S TAL KOPAN: WHITE HOUSE RESTRICTIONIST AGENDA THREATENS DREAMER DEAL!

http://www.cnn.com/2017/10/08/politics/white-house-daca-deal-principles/index.htm

Tal reports:

“Washington (CNN)The White House on Sunday night is expected to release an aggressive list of priorities for any deal to protect young undocumented immigrants in limbo — a list that could make a deal almost impossible to reach if it is strictly followed.

According to documents obtained by CNN, the Trump administration is expected to ask lawmakers to include tough border security and immigration enforcement measures in any deal to replace the Deferred Action for Childhood Arrivals program the administration is ending. Those measures would include provisions to make it harder for unaccompanied minors to enter the country illegally, money for the President’s border wall and cuts to legal immigration.

Trump announced he would end the Obama-era DACA program, which protects young undocumented immigrants brought to the US as children, at the beginning of last month, but gave Congress a six-month window in which to act to make the program permanent. Trump has repeatedly said he wanted border security measures as part of a deal, but Sunday night was the first time lawmakers were able to see the full list of the White House asks.

The list represents Republican priorities for immigration and border security, such as tightening the standard for asylum protections, beefing up staffing, cracking down on sanctuary cities, expanding the ways would-be immigrants can be rejected and cutting back significantly on the number of ways that immigrants can obtain green cards in the US by restricting family categories and transforming the employment-based system.

While Democrats have signaled an openness to some deal on DACA and border security, many of the proposals alone would be deal-breakers. Democrats are almost certainly needed to pass a bill to clear the filibuster threshold of 60 votes in the Senate and to make up for Republicans in both chambers who may decline to vote for any path to citizenship or legalization for DACA recipients.

close dialog

What will be key, one Democratic congressional staffer said, is how hard the White House pushes for the wish list.

“Depends on whether they’re serious or just positioning,” the staffer said. “If it’s the latter, and they leave themselves a lot of room to move, then maybe we can still negotiate something. The problem is that they could lock themselves in politically and then not be able to bend.”

House Minority Leader Nancy Pelosi and Senate Minority Leader Chuck Schumer were quick to pan the list, saying it shows Trump “can’t be serious” about reaching a deal if they start with a list that is “anathema” to immigrants and Democrats.

“We told the President at our meeting that we were open to reasonable border security measures alongside the DREAM Act, but this list goes so far beyond what is reasonable,” the Democratic leaders said in a statement, referring to discussions over dinner at the White House last month. “This proposal fails to represent any attempt at compromise. The list includes the wall, which was explicitly ruled out of the negotiations. If the President was serious about protecting the Dreamers, his staff has not made a good faith effort to do so.”

While Trump has Republican supporters on Capitol Hill who have endorsed a similar wish list of measures, even among his own party, lawmakers have pleaded with the White House not to seek a comprehensive immigration reform package before dealing with DACA — for which permits begin expiring March 6.

At a hearing in the Senate last week with representatives from the Department of Homeland Security, both Illinois Democratic Sen. Dick Durbin and Republican North Carolina Sen. Thom Tillis, who have proposed different DACA measures, implored the officials not to seek a complete immigration deal before any action. Durbin said it was “too much” to “put the burden” on a DACA bill to answer all of the issues on the table.

“It’s too much to ask … and I hope you’ll take that message back,” Durbin said.

Responding to the general principles articulated at the hearing, Tillis said: “It reads like a laundry list for comprehensive immigration reform, and if Congress has proven an extraordinary ability to do anything, it’s to fail at comprehensive immigration reform.”

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

As I’ve said before, this “proposal” — obviously the work of White Nationalist racists like Stephen Miller and Jeff Sessions influenced by Steve Bannon — is DOA. And, it’s certainly not an outline for “Comprehensive Immigration Reform.” No, it’s actually “Regressive Racist Anti-Americanism.” Of course, it wouldn’t be the first time that that America has used immigration laws to advance a despicable racist agenda. But, in the 21st Century all decent Americans have to take a strong stand against “neo-racists” of the GOP and the “neo-fascists” of the Alt Right. And, a guys like Miller, Gonzo, and Bannon fit both of those categories. They, along with Trump and “Looney White Guys With Guns,” pose the biggest threats to America’s safety and security.

PWS

10-08-17

LEGACY OF HATE – TRUMP’S APPOINTMENT OF HOMOPHOBIC JUDGES LIKELY TO TORMENT LGBTQ AMERICANS FOR DECADES TO COME! — Elections Have Consequences!

http://www.huffingtonpost.com/entry/trump-judicial-nominee-abortion-rights_us_59d67a63e4b046f5ad96e117?feh

Jennifer Bendery reports for Huff Post:

WASHINGTON ― Thursday was a good day for Amy Coney Barrett. A Senate committee voted to advance her nomination to be a federal judge.

It wasn’t a pretty vote. Every Democrat on the Judiciary Committee opposed her nomination. They scrutinized her past writings on abortion, which include her questioning the precedent of Roe v. Wade and condemning the birth control benefit under the Affordable Care Act as “a grave infringement on religious liberty.” One Democrat, Al Franken (Minn.), called her out for taking a speaking fee from the Alliance Defending Freedom, a nonprofit that’s defended forced sterilization for transgender people and has been dubbed a hate group by the Southern Poverty Law Center.

But Republicans don’t need Democrats’ votes, and now Barrett, a 45-year-old law professor at the University of Notre Dame, is all but certain to be confirmed to a lifetime post on the U.S. Court of Appeals for the 6th Circuit — a court one level below the Supreme Court.

Barrett is the model judicial candidate for this White House: young, conservative, and opposed to abortion and LGBTQ rights. For all the stories about President Donald Trump using his executive power to roll back civil rights protections — in the past day, his administration axed the ACA birth control benefit and ended workplace protections for transgender people — it is here, on the courts, where his team is working most aggressively to reshape the country.

“Trump’s speed in nominating judges has been perhaps the most successful aspect of his presidency,” said Carl Tobias, a law professor at the University of Richmond who specializes in judicial nominations. “Trump has easily surpassed Obama, Bush and Clinton at this point in the first year of their presidencies in terms of the sheer number nominated.”

He has. Ten months in, Trump has nominated 17 circuit court judges and 39 district court judges. That’s far more than former President Barack Obama’s seven circuit court nominees and four district court nominees by this point in his first year of office. Former President George W. Bush had nominated 11 circuit judges and 31 district judges by this point.

He’s also got more court seats to fill. He inherited a whopping 108 court vacancies when he became president ― double the number of vacancies Obama inherited when he took office. That’s largely due to Republicans’ years-long strategy of denying votes to Obama’s court picks to keep those seats empty for a future GOP president to fill. It worked.

If Trump’s current judicial nominees are a preview of the kinds of judges he plans to nominate in the coming years, prepare for a significantly more socially conservative group of people shaping the nation’s laws.

Consider John Bush. The Senate confirmed him in July, on a party-line vote, to a lifetime post on the U.S. Court of Appeals for the 6th Circuit. Bush, 52, has compared abortion to slavery and referred to them as “the two greatest tragedies in our country.” He has also said he strongly disagrees with same-sex marriage, mocked climate change and proclaimed “the witch is dead” when he thought the Affordable Care Act might not be enacted.

The Senate also confirmed Kevin Newsom, 44, to the U.S. Court of Appeals for the 11th Circuit in August. He wrote a 2000 law review article equating the rationale of Roe v. Wade to Dred Scott v. Sandford, the 1857 decision upholding slavery. He also argued in a 2005 article for the Federalist Society, a right-wing legal organization, that Title IX does not protect people who face retaliation for reporting gender discrimination. The Supreme Court later rejected that position.

Ralph Erickson, 58, was confirmed to the U.S. Court of Appeals for the 8th Circuit in September. As a district judge in 2016, he was one of two judges in the country who ordered the federal government not to enforce health care nondiscrimination protections for transgender people.

Here’s U.S. circuit court judge John Bush testifying in his Senate confirmation hearing in June. He thinks abortion is like slavery, and they are “the two greatest tragedies in our country.”

These are just judges that have been confirmed. Nominees in the queue include Leonard Grasz, Trump’s pick for a seat on the U.S. Court of Appeals for the 8th Circuit. Grasz, 56, proposed amending the Omaha City Charter in 2013 to let employers discriminate against LGBTQ people. He has also compared the “personhood” of fetuses to the civil rights of Native Americans and African-Americans, according to an exhaustive report issued by the Alliance for Justice, a left-leaning advocacy group that focuses on the federal judiciary.

Trump’s effort to shift the federal bench to the right isn’t just aimed at district and circuit courts. He nominated Damien Schiff, a 37-year-old attorney, to a 15-year gig on the U.S. Court of Federal Claims. Schiff has criticized efforts to prevent bullying of LGBTQ students, referring to messages of equality as “teaching ‘gayness’ in schools.” He also argued that states should be allowed to criminalize “consensual sodomy.”

Part of the reason the White House has been able to nominate so many judges, so quickly, is because it’s been focused on filling court vacancies in states represented by two Republican senators. It’s easier for Trump’s team to work with Republicans in picking nominees, and then in moving them forward in committee, where it takes both home-state senators turning in a “blue slip” to get the hearing process going.

Trump has been less successful in confirming nominees, though. That’s partly because in the mad rush to fill courts seats, the White House isn’t reviewing nominees’ records as thoroughly as, say, the Obama administration did. That means more controversial nominees and more scrutiny. Democrats aren’t exactly eager to cooperate, either, given the way Republicans treated Obama’s judicial nominees (remember Merrick Garland?).

But as Trump plows through judicial nominations that will be a part of his legacy for decades, the only thing Democrats can do while they’re in the minority, for the most part, is make noise.

If they want real change, says Tobias, “Democrats need to win elections.”

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Homophobe Jeff Sessions’s time as Attorney General won’t extend beyond the Trump Administration, if that long. However, the damage he has done to the U.S. legal system, our Constitution, the Department of Justice, and LGBTQ Americans won’t be easily repaired, if ever.

But, life tenured Federal Judges are an even bigger problem. These “robed bigots” will be inflicting cruel, discriminatory, and degrading treatment on the U.S. LGBTQ Community from their benches for decades to come.

In the end, Professor Tobias is entirely correct:“Democrats need to win elections.” Otherwise, our LGBT family, colleagues, friends, and neighbors are going to continue to be targets for homophobic Federal Judges and GOP politicos for many decades.

PWS

10-08-17

11th CIR BOPS BIA 4 BLOWING BASICS — BIA IGNORES DECADE-OLD PRECEDENTS ON POLICE REPORTS IN ATTEMPTING TO DENY ASYLUM! – RECINOS-CORONADO V. ATTORNEY GENERAL (UNPUBLISHED)

http://media.ca11.uscourts.gov/opinions/unpub/files/201612073.pdf

Recinos-Coronado v. Attorney General, 11th Cir., 09-29-17 (unpublished)

Before WILSON and NEWSOM, Circuit Judges, and WOOD,* District Judge.

PER CURIAM:

* Honorable Lisa Godbey Wood, United States District Judge for the Southern District of Georgia sitting by designation.

KEY QUOTE:

“We grant the petition for review on Recinos-Coronado’s petitions for asylum and withholding of removal. The BIA erred as a matter of law when it excluded from its past-persecution analysis the sexual abuse that Recinos-Coronado suffered at the hands of his uncle on the ground that Recinos-Coronado failed to report it. We have treated an applicant’s failure to report abuse as separate from the question whether the applicant suffered past persecution. See Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1344–45 (11th Cir. 2007). And in previously determining that an applicant suffered persecution based on cumulative incidents, we included in the past-persecution analysis (without discussion) an incident that the applicant failed to report—there, threatening “graffiti at his wife’s farm which alluded to [guerillas’] presence in the area, and referenced him specifically.” Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1255–57 (11th Cir. 2007). By refusing to consider the uncle’s abuse solely on the ground that Recinos-Coronado failed to report it, the BIA erred.”

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There respondent in this case is from Guatemala. Generally, reporting anything to the police in Guatemala is a waste of time, at best, and personally risky, at worst. The police are both corrupt and ineffective. Filing a police report is probably as likely to get the victim shaken down or abused by the police, or have the police tip off the abuser, as it is to result in effective law enforcement action.

Here’s what the latest U.S. State Department Country Report has to say about the police and the judiciary in Guatemala:

“Principal human rights abuses included widespread institutional corruption, particularly in the police and judicial sectors; security force involvement in serious crimes, such as kidnapping, drug trafficking, trafficking in persons, and extortion; and societal violence, including lethal violence against women.

Other human rights problems included arbitrary or unlawful killings, abuse and mistreatment by National Civil Police (PNC) members; harsh and sometimes life- threatening prison conditions; arbitrary arrest and detention; prolonged pretrial detention; failure of the judicial system to conduct full and timely investigations and fair trials; government failure to fully protect judicial officials, witnesses, and civil society representatives from intimidation and threats; and internal displacement of persons. In addition, there was sexual harassment and discrimination against women; child abuse, including the commercial sexual exploitation of children; discrimination and abuse of persons with disabilities; and trafficking in persons and human smuggling, including of unaccompanied children. Other problems included marginalization of indigenous communities and ineffective mechanisms to address land conflicts; discrimination on the basis of sexual orientation and gender identity; and ineffective enforcement of labor and child labor laws.”

Like many aspects of BIA asylum jurisprudence, on its face, the concept that the victim should report the harm to police seems to be rational. But, in practice, in disposing of (particularly Northern Triangle) asylum cases on an “assembly line” basis, the BIA takes a plausible factor and turns it into a “handle for quick denial” without much real analysis or even attention to the basic applicable law (in this case, 11th Circuit precedents that had been issued a decade earlier — hardly “hot off the presses”).

As a judge, I wanted to see the police reports if available or hear an explanation of the reason for unavailability. But whether or not an incident was reported to police was only one of many factors in judging the credibility of an asylum case, and never was determinative in and of itself. Sure, this is only one case. But an “expert tribunal” shouldn’t be getting basics like this wrong. It’s symptomatic of an appellate system “geared for denial.”

I do wish the 11th Circuit would publish this case. Although it’s short, it provides very important guidance on a point that obviously escaped the BIA.

PWS

10-08-17

7TH CIR. “SCHOOLS” BIA IN BIA’S OWN AUTHORITY TO GRANT WAIVER — ARTICLE III THWARTS BIA’S ATTEMPT TO “GET TO NO!” — Matter of KHAN, 26 I&N Dec. 797 (BIA 2016) BLOWN AWAY — BAEZ-SANCHEZ V. SESSIONS! — There’s Is Now A “Circuit Split” With The 3rd Cir., Which “Went Along To Get Along” With The BIA!

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Baez-Sanchez v. Sessions, 7th Cir., 10-06-17 (published)

PANEL: Before BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.

OPINION BY: Judge EASTERBROOK

KEY QUOTE:

“LDG addressed the question whether the Attorney Gen‐ eral has the authority to waive the inadmissibility of an alien seeking a U visa. We assumed that, in removal proceedings, IJs may exercise all of the Attorney General’s discretionary powers over immigration. The panel did not justify that as‐ sumption, because the parties had not doubted its correct‐ ness. But after LDG the Board concluded that the assumption is mistaken. In re Khan, 26 I&N Dec. 797 (2016), holds that IJs have only such powers as have been delegated and that the power to waive an alien’s inadmissibility during proceedings seeking U visas is not among them. The Third Circuit has agreed with that conclusion. Sunday v. Attorney General, 832 F.3d 211 (3d Cir. 2016). We must decide in this case whether to follow Sunday and Khan.
Delegation from the Attorney General to immigration judges is a matter of regulation, and arguably pertinent reg‐ ulations are scattered through Title 8 of the Code of Federal Regulations. The BIA in Khan observed, correctly, that the panel in LDG had not mentioned 8 C.F.R. §§235.2(d), 1235.2(d), which omit any delegation to IJs of the power to waive an alien’s admissibility. And that’s true, for those regu‐ lations concern the powers of District Directors rather than the powers of IJs. The principal regulation that does cover IJs’ authority is 8 C.F.R. §1003.10, which provides in part:
(a) Appointment. The immigration judges are attorneys whom the Attorney General appoints as administrative judges within the Office of the Chief Immigration Judge to conduct specified classes of proceedings, including hearings under section 240 of the [Immigration and Nationality] Act. Immigration judges shall act as the Attorney General’s delegates in the cases that come be‐ fore them.
(b) Powers and duties. In conducting hearings under section 240 of the Act and such other proceedings the Attorney General may assign to them, immigration judges shall exercise the powers and duties delegated to them by the Act and by the Attorney General through regulation. In deciding the individual cases be‐ fore them, and subject to the applicable governing standards, immigration judges shall exercise their independent judgment and discretion and may take any action consistent with their au‐ thorities under the Act and regulations that is appropriate and necessary for the disposition of such cases. Immigration judges shall administer oaths, receive evidence, and interrogate, exam‐ ine, and cross‐examine aliens and any witnesses. Subject to §§ 1003.35 and 1287.4 of this chapter, they may issue administra‐ tive subpoenas for the attendance of witnesses and the presenta‐ tion of evidence. In all cases, immigration judges shall seek to re‐ solve the questions before them in a timely and impartial man‐ ner consistent with the Act and regulations.

The Attorney General’s brief in this court observes that §1003.10(b) does not delegate to IJs any power to waive an alien’s inadmissibility. Sure enough, it doesn’t. But §1003.10(a) does. It says that “[i]mmigration judges shall act as the Attorney General’s delegates in the cases that come before them.” This sounds like a declaration that IJs may ex‐ ercise all of the Attorney General’s powers “in the cases that come before them”, unless some other regulation limits that general delegation. The BIA in Khan did not identify any provision that subtracts from the delegation in §1003.10(a). Nor did the Third Circuit in Sunday. Indeed, neither the BIA nor the Third Circuit cited §1003.10(a). We therefore adhere to the view of LDG that IJs may exercise the Attorney Gen‐ eral’s powers over immigration.”

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In the end, of course, the respondent didn’t win much. The 7th Circuit remanded the case to the BIA to “exercise Chevron authority” on the question of whether the Attorney General himself has been stripped of authority to grant these waivers by the legislation that established the DHS as a separate entity.

But, we already know the answer to that question. The BIA has no desire to exercise jurisdiction over this waiver. Indeed, to do so, could turn out to be “career threatening” if you work for notorious xenophobe Jeff Sessions.

Moreover, even before the advent of Sessions, the BIA abandoned any pretense of impartiality in exercising Chevron jurisdiction. The BIA usually looks for the interpretation least favorable to the respondent, that of the DHS, and adopts that as it “preferred interpretation.” To do otherwise could hamper any Administration’s efforts to achieve enforcement objectives, thereby endangering the BIA as an institution. Moreover, agreeing with the private litigant in a published decision could undermine the efforts of the DOJ’s Office of Immigration Litigation to facilitate successful defense of petitions for review removal orders in the Article III Courts.

If this sounds like a strange scenario for a supposedly fair, impartial, and unbiased “court” to adopt, that’s because it is! The BIA is there primarily to slap a “patina of due process” on removal orders without really interfering with the DHS’s “removal railroad.” And that’s useful because of Chevron and the ability of OIL and the DOJ to disingenuously claim that respondents receive “full due process” from the Immigration Courts and the BIA and that Article III Courts, therefore, ought not to worry themselves about the results. And, in a surprising number of cases, the Article IIIs oblige. They don’t want to be stuck having to redo tens of thousands of mass produced BIA appeals.

So, what’s not to like about this system? The Attorney General gets his wholly owned courts to churn out removal orders that look fair (but really aren’t in many cases). The BIA Appellate Judges get to keep their high paying jobs in the Falls Church Tower without having to personally “face up” to the poor folks they are railroading out of the country to places where their lives and futures are in danger. OIL gets to buttress its narrow readings of immigration statutes against immigrants with so-called “court decisions” from the BIA that really aren’t really decisions by independent decision makers. The DHS gets lots of removal orders to keep the “Enforcer In Chief” happy, plus they gain leverage to use against any U.S. Immigration Judge who keeps ruling in favor of respondents. “We’ll just take you to the BIA and get it reversed.” The Article IIIs get to largely avoid moral or legal responsibility for this facade of fairness and due process. Out of sight (which folks are when they get removed), out of mind. We’re just “deferring” to the BIA. Don’t blame us! And, don’t forget Congress! They get to pretend like none of this is happening and claim they are “solving” the problem just by throwing a few more positions and a little more money at EOIR. No need for meaningful oversight into the charade of due process in the U.S. Immigration Courts. And, there are a few guys over on the GOP side of the Hill who hate immigrants and despise due process as much as Sessions does. They undoubtedly see this as a model for the entire U.S. justice system, or better yet, have lots of ideas on how to avoid the Immigration Courts entirely and make the “removal railway” run even faster.

The only folks who aren’t served are the poor folks looking to the U.S. Immigration Courts as courts of last resort to save their lives, preserve their futures, or at least listen sympathetically to their case for remaining. Some of these poor fools actually believe all they stuff about Americans being fair and humane. Those guys were really discombobulated when I had to tell them that while I had absolutely no doubt that some very ”bad things” were going to happen to them upon return, that just doesn’t matter to the U.S. legal system. While I sometimes had the unenviable task of “telling it like it is,” the BIA, the DOJ, and the Federal Courts really couldn’t care less if migrants end up getting killed, raped, or maimed upon return or if their families in the U.S. have to go on welfare. There’s just no place for them in our system.

The other folks who might not come out so well are the rest of America — the non-xenophobes. Most Americans aren’t actually xenophobes in the Trump-Sessions-MIller-Bannon-GOP Restrictionist tradition. While those of us who know what’s happening might be powerless to stop it, we can document it for future generations. We’re making a record.

In the age of information, none of this is going away or going to be swept under an “eternal carpet.” Someday there will be a “day or recokening” for our descendants, just like the one for those of us whose current privilege was built on enslaved African American labor and its many benefits as well as by a century of “Jim Crow” laws which siphoned off African American Citizens’ Constitutional rights and human dignity and conferred them instead on undeserving white folks in both the South and the North.

We have certainly demonstrated that we can be “tone deaf” to both the motivations and the actual effects of our current broken immigration policies. Indeed, there can be no better evidence of that than the election of Trump and empowerment of his xenophobe racist cronies like Sessions and Miller.

But, in the end, we won’t escape the judgement of history, nor will they. The ugliness of our current immigration policies and practices, and the “false debate” about them (there, in fact is no legitimate case for the “restrictionist agenda” — just a racial and cultural one), might be buried in a barrage of alt-right media and “Sessions bogus law and fact free pronouncements.” But, someday, those are going to look just as “legit’ as Conferederate broadsides or the racially hateful rhetoric of Jefferson Davis do today outside the membership of various hate groups and the alt-right.

PWS

10-07-17

BIA SAYS “NO” TO BATTERED SPOUSE WAIVER FOR THOSE ABUSED BY FOREIGN SPOUSE! — Matter of PANGAN-SIS, 27 I&N Dec. 130 (BIA 2017)

3904

Matter of PANGAN-SIS, 27 I&N Dec. 130 (BIA 2017)

BIA HEADNOTE:

An alien seeking to qualify for the exception to inadmissibility in section 212(a)(6)(A)(ii) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(ii) (2012), must satisfy all three subclauses of that section, including the requirement that the alien be “a VAWA self-petitioner.”

PANEL: Appellate Immigration Judges Malphrus, Mullane & Creppy

OPINION BY: Judge Mullane

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Let’s break this down into simple human terms. A Guatemalan woman suffered an extended period of domestic abuse in Guatemala at the hands of her husband. That caused her to flee to the United States and enter without inspection. The woman told the truth to authorities.

Rather than granting her temporary refuge, the U.S. Government sought to remove the woman. The woman was fortunate enough to get a good lawyer who made sophisticated arguments in favor of her remaining. She also was fortunate to have a U.S. Immigration Judge who listened to those arguments and granted her a humanitarian waiver. This waiver allowed her to remain in the United States, but did not give her any permanent status nor did it put her in line for a green card.

The Government (“DHS”) did not want the woman to remain, even in a more or less “limbo status.” So, they appealed to the BIA.

The BIA agreed with the woman that the waiver statute was ambiguious and therefore the Immigration Judge had plausibly interpreted it in her favor. But, the BIA found that a “better interpretation” would impose additional requirements that woman and those similarly situated could never meet. The BIA noted that Congress was only concerned about domestic violence in the United States that was being used as “leverage” against a foreign national by his or her US citizen or green card holding spouse.

Inferentially, the BIA found that Congress could not possibly have intended to help other victims of domestic violence that occurred outside the United States. That would potentially allow every abused spouse in the world to seek a discretionary waiver that would save them from abuse by granting them limited refuge in the United States.

The BIA sent the case back to the Immigration Judge so that the DHS can continue its efforts to remove her to Guatemala where she will be further abused by her Guatemalan spouse. Her lawyer can help her apply for asylum and withholding of removal based on a prior BIA decision Matter of A-R-C-G- that benefitted victims of domestic violence.

However the DHS is likely to oppose that relief. Otherwise, the DHS would have already offered to settle the case based on A-R-C-G-. That’s what used to happen routinely in my court in Arlington prior to the Trump Administration. The woman is credible and appears to fit squarely within A-R-C-G-.

But, if the Immigration Judge grants relief under A-R-C-G- or the Convention, Against Torture (“CAT”), the DHS probably will appeal again to the BIA. As part of the Administration’s enforcement program, the DHS wants the BIA to help them “send a message” that victims of domestic violence might as well continue to suffer abuse or preferably die (thus solving the problem from a U.S. Immigration Enforcement standpoint) at the hands of their abusers rather than seeking refuge in the United States. Bad things that happen to good people in other countries are just not our problem. America First!

The BIA Appellate Judges work for Jeff Sessions. They understand even better than Immigration Judges in the field that “not getting with the Administration’s Enforcement program” of sending consistently negative messages to asylum seekers could result in their being reassigned to other jobs by Jeff Sessions. Some of those jobs have no real duties (“Hallwalkers”).

Jeff Sessions hates all migrants and particularly Hispanic migrants fleeing from Central America. He hates them almost as much as he hates LGBTQ Americans.

Jeff tells everyone who will listen that all Hispanic migrants and most Hispanic citizens who live among them are criminals, drug dealers, and gang members. Even those who aren’t actually criminals are going to take great jobs that Americans would like to have such as picking lettuce, milking cows, shucking oysters, making beds, washing dishes, climbing up trees, cleaning bathrooms, sweeping floors, removing dangerous and moldy storm damage, taking off and putting on roofs in 120 degree heat, pounding drywall, taking care of other folks’ children, mowing laws, and changing adult diapers for senior cizens who can’t do it themselves.

While the United States might sometimes claim to be a bastion of freedom and humanitarian ideals, that is usually only when lecturing other countries on their failings or touting the superiority of our system over every other system in the world. Nobody should seriously expect the United States to act on those humanitarian ideals, particularly when it comes to helping women and children from the Northern Triangle of Central America.

PWS

10-07-17

BRINGING OUR CONSTITUTION BACK TO LIFE — AN IMPORTANT FIRST STEP: “JAYAPAL, SMITH INTRODUCE LEGISLATION TO REFORM IMMIGRATION DETENTION SYSTEM!”

https://www.theindianpanorama.news/unitedstates/jayapal-smith-introduce-legislation-reform-immigration-detention-system/

From Indian Panorama:

“WASHINGTON (TIP): Congressman Adam Smith (WA-09) and Indian American Congresswoman Pramila Jayapal (WA-07) introduced, on Oct 3, the Dignity for Detained Immigrants Act, legislation to reform the systemic problems in immigration detention system. This bill will end the use of private facilities and repeal mandatory detention, while restoring due process, oversight, accountability, and transparency to the immigration detention system.

“The high moral cost of our inhumane immigration detention system is reprehensible. Large, private corporations operating detention centers are profiting off the suffering of men, women and children. We need an overhaul,” said Congresswoman Jayapal. “It’s clear that the Trump administration is dismantling the few protections in place for detained immigrants even as he ramps up enforcement against parents and vulnerable populations. This bill addresses the most egregious problems with our immigration detention system. It’s Congress’ responsibility to step up and pass this bill.”

“We must fix the injustices in our broken immigration detention system,” said Congressman Adam Smith. “As the Trump administration continues to push a misguided and dangerous immigration agenda, we need to ensure fair treatment and due process for immigrants and refugees faced with detention. This legislation will address some of the worst failings of our immigration policy, and restore integrity and humanity to immigration proceedings.”

In addition to repealing mandatory detention, a policy that often results in arbitrary and indefinite detention, the legislation creates a meaningful inspection process at detention facilities to ensure they meet the government’s own standards. The bill requires the Department of Homeland Security (DHS) to establish legally enforceable civil detention standards in line with those adopted by the American Bar Association. With disturbing track records of abuse and neglect, DHS has a responsibility to ensure that facilities are held accountable for the humane treatment of those awaiting immigration proceedings.

Individuals held in immigration detention system are subject to civil law, but are often held in conditions identical to prisons. In many cases, detained people are simply awaiting their day in court. To correct the persistent failures of due process, the legislation requires the government to show probable cause to detain people, and implements a special rule for primary caregivers and vulnerable populations, including pregnant women and people with serious medical and mental health issues.”

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

Since these guys are Democrats, their bill is obviously DOA. But, it is important to start “laying down markers” — even symbolic ones — for the future.

As a former administrative judge who was required to administer and enforce mandatory detention (under DOJ rules, we were not permitted to consider the constitutionality of the mandatory detention statutes and the DHS implementing regulations) for the better part of two decades, I can assure you that it was a totally unnecessary, grossly wasteful, and stunningly unhumane blot on our national conscience and our reputation as a nation that adheres to principles of simple human decency.

There is absolutely no reason why U.S. Imigration Judges cannot determine who needs to be detained as a flight risk or a danger to the community and who doesn’t! But, for that to happen, we also need an independent Article I U.S. Immigration Court not beholden to the Attorney General (particularly one like Jeff “Gonzo Apocalypto” Sessions with a perverse ignorance of Constitutional protections, an overwhelming bias against immigrants, and a record largely devoid of notable acts of human decency.)

Every study conducted during the last Administration, including DHS’s own Advisory Committee, found serious problems and inadequate conditions in private detention and recommended that it be eliminated. Former Attorney General Loretta Lynch actually announced an end to private detention for criminals. Yet, remarkably and unconscionably, the response of the Trump Administration, led by Gonzo Apocalypto, was to double down and expand the use of expensive, inhumane private detention for convicted criminals and for “civil” immigration detainees whose sole “crime” is to seek justice from the courts in America.

Thanks much to Nolan Rappaport for sending this in!

PWS

10-06-17

LA TIMES: SUPREMES MUST DELIVER ON PROMISE OF DUE PROCESS FOR IMMIGRANTS! — “[T]oo often immigrants haven’t received fair treatment from the courts.“ — Is Justice Gorsuch About To Make Good On His Oath To Uphold The Constitution By Standing Up For Due Process For Migrants?

http://www.latimes.com/opinion/editorials/la-ed-scotus-immigrants-20171005-story.html

“This week the Supreme Court heard arguments in two cases that pose the question of whether noncitizens should be afforded at least some of the due process of law that Americans take for granted. The answer in both cases should be a resounding yes.

On Monday, the justices considered whether a Filipino legal immigrant convicted of two home burglaries in California could be deported even if the wording of the federal law used to determine whether he could be removed from the U.S. was so unconstitutionally vague that it could not be enforced in a criminal court. On Tuesday, lawyers for a group of noncitizens detained by immigration authorities asked the court to rule that detainees are entitled to a bond hearing after six months of confinement.

Although the circumstances and legal issues in the two cases differ, the common denominator is the importance of affording due process to noncitizens.

James Garcia Dimaya, who was admitted to the U.S. as a lawful permanent resident at the age of 13, pleaded no contest in 2007 and 2009 to two charges of residential burglary. Concluding that one of the convictions was an “aggravated felony,” the Board of Immigration Appeals agreed with the Homeland Security Department that Dimaya should be deported.

The United States is often called “a nation of immigrants.” But too often immigrants haven’t received fair treatment from the courts.
But the U.S. 9th Circuit Court of Appeals overturned that decision. It said the definition of “aggravated felony” in immigration law incorporated a definition of “crime of violence” that was similar to language in a different law the Supreme Court had concluded in 2015 was too vague to be constitutional.

At Monday’s oral argument, Deputy Solicitor General Edwin S. Kneedler said the law at issue in Dimaya’s case didn’t suffer from the same vagueness problem. But even if it did, Kneedler told the court, “immigration is distinctive” and deportation “is not punishment for [a] past offense.” In other words, even if the law was too vague to be used for the purposes of criminal punishment, it could still be used for the purposes of deportation.

This brought a devastating rejoinder from Justice Neil Gorsuch. “I can easily imagine a misdemeanant who may be convicted of a crime for which the sentence is six months in jail or a $100 fine, and he wouldn’t trade places in the world for someone who is deported,” Gorsuch said. He questioned the soundness of the “line that we’ve drawn in the past” between criminal punishment and civil penalties such as deportation.

We agree. If the court decides that the wording of the law that triggered Dimaya’s removal order was unconstitutionally vague, he should be entitled to relief. A law that is too vague to justify a criminal sentence shouldn’t be a good enough reason to expel someone from the country.

In the case argued Tuesday, a class-action lawsuit, noncitizens detained by immigration authorities asked the court to rule that they should receive bond hearings if their detention lasts for six months. The lead plaintiff is Alejandro Rodriguez, who grew up in Los Angeles as a lawful permanent resident. After Rodriguez was sentenced to five years’ probation on a misdemeanor drug possession conviction, he was detained and targeted for deportation to Mexico, the country he had left as a baby two decades earlier. He remained locked up as his legal battle dragged on for years.

The 9th Circuit ruled not only that detainees were entitled to bond hearings but also that they should be released unless the government could demonstrate by clear and convincing evidence that they were dangerous or a flight risk. But on Tuesday Deputy Solicitor General Malcolm Stewart told the court that detainees “have no such right.” He later said that insofar as foreigners arriving in the U.S. are concerned, the Supreme Court has made it clear that “whatever process Congress chooses to give is due process.”

Yet in recent years the court has recognized not only that noncitizens have constitutional rights but that deportation can be a catastrophic experience. In June, the court overturned the guilty plea of an immigrant from South Korea because his lawyer wrongly told him he wouldn’t be deported as a consequence of a plea bargain.

The United States is often called “a nation of immigrants.” But too often immigrants haven’t received fair treatment from the courts. The cases argued this week offer the Supreme Court an opportunity to rectify that injustice.”

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”Mouthing” due process for migrants is easy; the BIA does it all the time — so does EOIR. But, actually providing due process for migrants is something totally different. Most courts, and particulately the BIA, routinely sign off on unfair procedures and interpretations that would never be considered “Due Process” in any other context.

I’m “cautiously heartened” by Justice Gorsuch’s apparent realization of the potentially catastrophic real human consequences of removal (often blithely ignored or downplayed by the BIA, Sessions, restrictionists, and Federal Courts) and recognition that the “civil-criminal” distinction is totally bogus — designed to sweep Constitutional violations under the rug — and needs to be eliminated.

As an Immigration Judge, when I was assigned to the “Detained Docket” in Arlington, I had case after case of green card holders who had minor crimes for which they paid fines or got suspended sentences — in other words, hadn’t spent a day in jail — “mandatorily detained” for months, sometimes years, pending resolution of their “civil” immigration cases. In plain language, they were sentenced to indefinite imprisonment but without the protections that a criminal defendant would receive! They, their families, and their employers were incredulous that this could be happening in the United States of America. I simply could not explain it in a way that made sense.

Talk is one thing, action quote another. But, if Justice Gorsuch folllows through on his apparent inclination to make Due Process protections for migrants “a reality” rather than a “false promise,” Constitutional protections will be enhanced for every American! We are no better than how we treat the least among us.

Ultimately, full delivery on the promise of Constitutional Due Process for everyone in America, including migrants, will require the creation of an independent Article I U.S. Immigraton Court. The current “captive system” — unwilling and unable to stand up for true Due Process for migrants — is a facade behind which routine denials of Constitutional Due Process take place. As Americans, we should demand better for the most vulnerable among us.

PWS

10-06-17

HON. JEFFREY S. CHASE: Alimbaev v. Att’y Gen (3rd Cir.) Shows How BIA Is Willing To Overlook Rules To Avoid Political Threat to Existence — No Wonder Due Process Is No Longer The Vision Or Goal Of The Immigraton Courts! — Read My Latest “Mini-Essay:” TIME TO END THE “CHARADE OF QUASI-JUDICIAL INDEPENDENCE” AT THE BIA (With Credit to Peter Levinson)

https://www.jeffreyschase.com/blog/2017/10/5/3d-cir-rebukes-bia-for-troubling-erroneous-overreach

Here’s Jeffrey’s Blog:

“Oct 5 3d Cir. Rebukes BIA for Troubling, Erroneous Overreach

Alimbaev v. Att’y Gen. of U.S., No. 16-4313 (3d Cir. Sept. 25, 2017) opens with unusual language: “This disconcerting case, before our court for the second time, has a lengthy procedural history marked by confiict between the Board of Immigration Appeals (BIA) and the Immigration Judge (IJ)…” The court observed that the case involved “troubling allegations that the Petitioner…relished watching terroristic videos, while apparently harboring anti-American sympathies.” But the court noted that the question before it was whether the BIA applied the correct legal standard for reviewing the IJ’s factual findings, which the court found necessary for “preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity are not usurped by emotion, regardless of the nature of the allegations.”

There is some history behind the correct legal standard mentioned by the circuit court. Prior to 2002, the BIA could review factual findings de novo, meaning it could substitute its own judgment as to whether the respondent was truthful or not for that of the immigration judge. In 2002, then attorney general John Ashcroft enacted procedural reforms which limited the scope of the Board’s review of factual findings to “clear error.” The new review standard meant that even if the Board strongly disagreed with the immigration judge’s fact finding, it could only reverse if it was left with the definite and firm conviction that a mistake had been made. The stated reason for the change was that the overwhelming majority of immigration decisions were correct. The actual motive for the change was more likely that the Board was seen as too liberal by Ashcroft; the new standard would therefore make it more difficult for the Board to reverse deportation orders based on the immigration judges’ finding that the respondent lacked credibility.

The following year, Ashcroft purged the Board of all of its more liberal members. The resulting conservative lean has not been offset by subsequent appointments, in spite of the fact that several of those appointments were made under the Obama administration. The Board regularly uses boilerplate language to affirm adverse credibility findings on the grounds that they do not meet the “clearly erroneous” standard. Furthermore, 2005 legislation provided immigration judges with a broader range of bases for credibility determinations, which again made it more difficult for the Board and the circuit courts to reverse on credibility grounds.

The provisions safeguarding an IJ’s credibility finding should apply equally to cases in which relief was granted, making it difficult for a conservative panel of the Board to reverse a grant of relief where the IJ found the respondent credible. Alimbaev was decided by an outstanding immigration judge, who rendered a fair, detailed, thoughtfully considered decision. Factoring in the REAL ID Act standards and the limited scope of review allowed, the Board should have affirmed the IJ’s decision, even if its members would have reached a different factual finding themselves. Instead, the Board panel ignored all of the above to wrongly reverse the IJ not once but three times.

The immigration judge heard the case twice, granting the respondent’s applications for relief each time. In his second decision, the IJ found the respondent’s testimony to be “candid, internally consistent, generally believable, and sufficiently detailed.” In reversing, the BIA turned to nitpicking, citing two small inconsistencies that the Third Circuit termed so “insignificant…that they would probably not, standing alone, justify an IJ making a general adverse credibility finding, much less justify the BIA in rejecting a positive credibility finding under a clear error standard.” The Court therefore concluded that the BIA substituted its own view for the permissible view of the IJ, which is exactly what the “clear error” standard of review is meant to prevent.

The Board cited two other dubious reasons for reversing. One, which the circuit court described as “also troubling,” involved a false insinuation by the Board that a computer containing evidence corroborating the claim that the respondent had viewed “terrorist activity” was found in his residence. In fact, the evidence established that the computer in question was not the respondents, but one located in a communal area of an apartment in which the respondent lived; according to the record, the respondent used the communal computer only on occasion to watch the news. In a footnote, the court noted that none of the videos found on the communal computer were training materials; several originated from the recognized news source Al Jazeera, and “that on the whole, the computer did not produce any direct or causal link suggesting that [they] espoused violence, such as email messages of a questionable nature.” The circuit court therefore remanded the record back to the BIA, with clear instructions to reconsider the discretionary factors “with due deference to the IJ’s factfinding before weighing the various positive and negative factors…”

The question remains as to why the BIA got this so wrong. One possibility is that as the case involved allegations that the respondent might have harbored terrorist sympathies, the Board members let emotion and prejudice take over (apparently three separate times, over a period of several years). If that’s the case, it demonstrates that 15 years after the Ashcroft purge, the one-sided composition of the Board’s members (with no more liberal viewpoints to provide balance) has resulted in a lack of objectivity and impartiality in its decision making. Unfortunately, the appointment of more diverse Board members seems extremely unlikely to happen under the present administration.

But I believe there is another possibility as well. 15 years later, the Board remains very cognizant of the purge and its causes. It is plausible that the Board made a determination that as a matter of self-preservation, it is preferable to be legally wrong than to be perceived as being “soft on terrorism.” If that is the case, there is no stronger argument of the need for an independent immigration court that would not be subject to the type of political pressures that would impact impartiality and fairness.

It also bears mention that unlike the Board, the immigration judge in this case faced the same pressures, yet did not let them prevent him from issuing an impartial, fair, and ultimately correct decision (in spite of having his first decision vacated and remanded by the Board). Unlike the BIA, whose members review decisions that have been drafted for them in a suburban office tower, immigration judges are on the front lines, addressing crippling case loads, being sent on short notice to remote border locations, and dealing with DHS attorneys who now, on orders from Washington, cannot exercise prosecutorial discretion, must raise unnecessary objections, reserve appeal on grants of relief, and oppose termination in deserving cases. Yet many of these judges continue to issue their decisions with impartiality and fairness. Their higher-ups in the Department of Justice should learn from their performance the true meaning of the “rule of law.”

Reprinted With Permisison

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Here’s a link to my previously-published analysis of Alimbaev: http://wp.me/p8eeJm-1tX

TIME TO END THE “CHARADE OF QUASI-JUDICIAL INDEPENDENCE” AT THE BIA (With Credit to Peter Levinson)

By Paul Wickham Schmidt

United States Immigration Judge (Retired)

The “grand experiment” of trying to have the BIA operate as an independent appellate court along the lines of a U.S. Court of Appeals ended with the advent of the Bush II Administration in 2001 and Ashcroft’s not too subtle suggestion that he wanted me out as BIA Chairman (presumably, the ”implied threat” was to transfer me to an SES “Hallwalker” position elsewhere in the DOJ if I didn’t cooperate. I cooperated and became a Board Member until he bounced me out of that job in 2003).

Since then, and particularly since the “final purge” in 2003, the BIA has operated as a “captive court” exhibiting a keen awareness of the “political climate” at the DOJ. Don’t rock the boat, avoid dissent, don’t focus too much on fairness or due process for immigrants, particularly if it might cause controversy, interfere with Administration Enforcement programs, or show up in a published precedent.

I agree with everything Jeffrey says. It’s totally demoralizing for U.S. Immigration Judges who are willing to “do the right thing” and stand up for due process and fairness for respondents when the BIA comes back with a disingenuous reversal, sometimes using canned language that doesn’t even have much to do with the actual case.

You should have seen the reaction of some of our former Judicial Law Clerks in Arlington (a bright bunch, without exception, who hadn’t been steeped in the “EOIR mystique”) when a specious reversal of an asylum, withholding, or CAT grant came back from the BIA, often “blowing away” a meticulously detailed well-analyzed written grant with shallow platitudes. One of them told me that once you figured out what panel it had gone to, you could pretty much predict the result. It had more to do with the personal philosophies of the Appellate Judges than it did with the law or due process or even the actual facts of the case. And, of course, nobody was left on the BIA to dissent.

And, as I have pointed out before, both the Bush and Obama Administrations went to great lengths to insure that no “boat rockers,” “independent thinkers” or “outside experts” were appointed to appellate judgeships at the BIA for the past 17 years. Just another obvious reason why the promise of impartiality, fairness, and due process from the U.S. Immigration Courts has been abandoned and replaced with a “mission oriented” emphasis on fulfilling Administration Enforcement objectives. In other words, insuring that a party in interest, the DHS, won’t have its credibility or policies unduly hampered by a truly independent Board and that the Office of Immigration Litigation will get the positions that it wants to defend in the Circuit Courts.

When is the last time you saw the BIA prefer the respondent’s interpretation to the DHS’s in interpreting an allegedly “ambiguous” statutory provision under the Chevron doctrine? Even in cases where the respondent invokes “heavy duty assistance” on its side, like for example the United Nations High Commissioner for Refugees in an asylum case, the BIA basically “blows them off” without meaningful consideration and finds the DHS position to be the “most reasonable.” For one of the most egregious examples in modern BIA history, see the insulting “short shrift” that the BIA gave to the well-articulated views of the UNHCR (who also had some Circuit Court law on its side) in Matter of M-E-V-G-, 26 I&N Dec. 207, 248-49 (BIA 2014) (“We believe that our interpretation in Matter of S-E-G- and Matter of E-A-G-, as clarified, more accurately captures the concepts underlying the United States’ obligations under the Protocol and will ensure greater consistency in the interpretation of asylum claims under the Act.”)

The whole Chevron/Brand X concept is a joke, particularly as applied to the BIA. It’s high time for the Supremes to abandon it (something in which Justice Gorsuch showed some interest when he was on the 10th Circuit). If we’re going to have a politicized interpretation, better have it be from life-tenured, Presidentially-appointed, Senate-confirmed Article III Judges, who notwithstanding politics actually possess decisional independence, than from an administrative judge who is an employee of the Attorney General (as the DOJ always likes to remind Immigration Judges).

It’s also a powerful argument why the current “expensive charade” of an independent Immigration Court needs to be replaced by a truly independent Article I Court. Until that happens, the Article III Courts will be faced with more and more “life or death” decisions based on the prevailing political winds and institutional preservation rather than on Due Process and the rule of law.

PWS

10-05-17

TAL KOPAN AT CNN: Alarm Bells Ring As DACA Renewals Lag At Deadline! — Administration Refuses To Extend Deadline Despite Hurricanes & Inadequate Publicity! — Politico Reports That White House Racist Stephen Miller Planning To Torpedo Dreamer Relief — Immigration System & Country Facing Chaos!

http://www.cnn.com/2017/10/05/politics/daca-renewal-deadline-immigration/index.html

Tal reports:

“Washington (CNN)Democrats are raising alarms that more than a quarter of eligible recipients under the Deferred Action for Childhood Arrivals program have not yet filed to renew their status ahead of Thursday’s deadline.

According to data provided Wednesday by a senior Democratic congressional staffer and confirmed to CNN by US Citizenship and Immigration Services, 42,669 individuals nationwide — or 27.7% of the 154,234 people eligible — had not submitted their applications. That was slightly down from roughly 48,000 that the Department of Homeland Security said Tuesday hadn’t yet submitted.
When President Donald Trump announced the end of the program, known as DACA, a month ago, he put in place a six-month delay on expiring protections by allowing any recipient whose DACA expires by March 5 until Thursday to apply for a two-year renewal. Otherwise, the program that protects young undocumented immigrants brought to the US as children from deportation will begin to end on March 5, as the two-year permits of nearly 700,000 active protectees begin to run out.
Democrats have repeatedly implored DHS to extend the deadline, saying one month to gather paperwork — and the roughly $500 application fee — is not long enough for those affected.
Trump sketches out DACA deal with Republicans at White House dinner
They’ve been especially critical of DHS for not making special consideration for DACA recipients in states hit by hurricanes Irma and Harvey, though DHS did announce Tuesday it would make case-by-case decisions for recipients in Puerto Rico and the Virgin Islands affected by Maria.
The frustration bubbled up at a Senate hearing Tuesday, where Illinois Democratic Sen. Dick Durbin cited considerations the Internal Revenue Service was making for Texas, Louisiana and Florida residents.
“May I implore you, implore you, to do the same thing at DHS that our own Internal Revenue Service is doing,” Durbin said to the DHS officials testifying. “If it’s good enough for our tax collectors to have a heart, isn’t it good enough for DHS to have a heart?”
Senators’ frustration with Trump on DACA bubbles up at hearing
According to the Wednesday data, more than 2,600 of eligible recipients in Texas had yet to submit renewals, 28% of the total eligible in that state. In Florida, more than 2,000, or 35% of those eligible, had yet to renew. In the US islands hit by Irma, 16 of the 37 eligible hadn’t yet renewed.
Democrats have also been frustrated with DHS over its notification process, saying without individual notifications to those eligible for renewal, the administration should extend the deadline.
“We are very concerned that because DACA recipients were not individually notified of their eligibility for renewal, tens of thousands of DACA recipients could lose their work authorization and DACA status protections,” Congressional Hispanic Caucus leaders wrote in a letter to acting DHS Secretary Elaine Duke on Tuesday repeating a request to meet about extending the deadline.
Trump said he was putting in place the six-month window to give Congress a sense of urgency to put the Obama administration executive action into law.
But despite Tuesday’s hearing, multiple working groups and meetings the President has had with lawmakers at the White House, little substantive progress has been made.
The fault lines have remained consistent. Democrats support the bipartisan Dream Act that would protect eligible young immigrants who arrived as children and put them on a path to citizenship. They say they could accept border security as a compromise with it, but insist they will not vote for anything that could put the families and friends of those protected at greater risk of deportation.
DACA deal: A list of just some of the things that could go wrong
But Republicans are also insistent that any DACA deal must include border security and likely immigration enforcement measures, and the more conservative members of the party are suggesting policies — like mandatory worker verification, cuts to the legal immigration system and expanded deportation authority — that would be almost impossible to get Democrats to agree to.
Any solution would likely have to include Democrats, as they’ll be needed for passage in the Senate and to make up for Republicans in the House who would never vote for any DACA deal. But House Speaker Paul Ryan has also pledged not to move any bill that doesn’t get the votes of a majority of Republicans, limiting the options.
Durbin was joined on Tuesday at the hearing by Sen. Thom Tillis, R-North Carolina, in urging lawmakers and the White House to not try to concoct too big a compromise. Tillis has sponsored legislation similar to Durbin’s Dream Act that he bills as a conservative DACA solution.
Responding to a wish list articulated by a DHS senior staff member testifying about the White House’s aims, Tillis grew frustrated and urged members to focus on a narrow deal as a starting point.
“It reads like a laundry list for comprehensive immigration reform, and if Congress has proven an extraordinary ability to do anything, it’s to fail at comprehensive immigration reform,” Tillis said.”

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

Bad news on all fronts for Dreamers, and for America. Over at the White House, notorious White Nationalist xenophobe racist and Sessions confidante Stephen Miller is plotting to destroy any chance of compromise legislation to aid Dreamers by attaching reductions in legal Immigraton and other parts of the White Nationalist agenda to the bill.

Politico reports:

“The White House is finalizing a plan to demand hard-line immigration reforms in exchange for supporting a fix on the DACA program, according to three people familiar with the talks — an approach that risks alienating Democrats and even many Republicans, potentially tanking any deal.

The White House proposal is being crafted by Stephen Miller, the administration’s top immigration adviser, and includes cutting legal immigration by half over the next decade, an idea that’s already been panned by lawmakers in both parties.

The principles would likely be a political non-starter for Democrats and infuriate Senate Minority Leader Chuck Schumer and House Minority Leader Nancy Pelosi, who have negotiated with President Donald Trump on immigration and left a White House meeting last month indicating a solution was near. They could also divide Republicans, many of whom oppose cutting legal immigration.

Miller was upset after Trump’s dinner last month with Schumer and Pelosi and has been working since to bring the president back to the tougher stance he took during his campaign.

Miller has begun talking with Hill aides and White House officials about the principles in recent days. The administration is expected to send its immigration wish-list to Congress in the coming days, perhaps as soon as this weekend, said the people familiar with the plan, who include two administration officials. They requested anonymity to discuss the ongoing negotiations.

A White House official cautioned that the plans have not been finalized and could still change. Miller didn’t respond to a request for comment.

Unless they change dramatically from their current form, the immigration principles could short-circuit congressional negotiations aimed at finding a fix to DACA, or the Deferred Action for Childhood Arrivals program — the Obama-era initiative that grants work permits to undocumented immigrants who arrived in the United States as minors.

“Handing Stephen Miller the pen on any DACA deal after the revolt from their base is the quickest way to blow it up,” said a senior Democratic Senate aide.

Lawmakers on both sides of the Capitol panned an earlier White House immigration proposal spearheaded by Miller, the RAISE Act, when the White House rolled it out in August. Republicans including Sens. Lindsey Graham of South Carolina and Ron Johnson .)of Wisconsin all but declared the proposal dead on arrival.

Trump announced last month that he would end the DACA program, but he said he’d give Congress six months to come up with a legislative solution.

Despite Trump’s efforts to make nice with Schumer and Pelosi, Republican lawmakers signaled this week that the president is prepared to demand tough immigration measures as part of the negotiations.

In addition to provisions in the RAISE Act, the White House’s immigration principles also include parts of the Davis-Oliver Act, including measures that would give state and local law enforcement power to enforce immigration laws, allow states to write their own immigration laws and expand criminal penalties for entering the U.S. illegally.

The principles would also incorporate a provision from the Davis-Oliver Act that puts the onus on Congress to designate Temporary Protected Status, which allows immigrants to temporarily stay in the United States because they are unable to return to their home country as a result of a natural disaster or other dangerous circumstances.

The Davis-Oliver Act gives Congress 90 days to approve a measure extending TPS protections to a foreign state. If Congress does not act, the designation will be terminated. Lawmakers have raised concerns that Congress will be unable to agree on the designations, effectively killing the program.

In addition, the principles call for billions of dollars in border security, as well as money for detention beds and more immigration judges, according to the people familiar with them. Republicans are likely to support those moves.”

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

Miller’s proposals are right out of the White Nationalist restrictionist playbook. It will be a non-starter for Democrats. Additionally, no decent human being of any party should ever be associated, in any way, with any idea emanating from the arrogant racist Miller.

If Miller is involved, Dreamer relief is DOA. That means that Dreamers are likely to be left to fight out their future one case at a time in the Federal Courts and in the Immigraton Courts. Given the existing 630,000+ case backlog in the U.S. Imigration Courts, and the relatively cumbersome process for restoring “Dreamer” cases to the Immigraton Court Docket, not many will actually be removed from the United States before 2000.

I also think that Dreamers will have a reasonable chance of succeeding in the Article III Courts in barring DHS from relying on any evidence furnished as part of the DACA application and interview process as evidence of removability. That’s likely to throw a further monkey wrench into any enforcement initiative aimed at Dreamers.

So, the best strategy might prove to be working hard to remove the Trump regime and enough White Nationalist GOPers through the ballot box to create a climate for reasonable immigraton reform in 2021.

Sad, but probably true. A country that mistreats its youth in this manner can expect “very bad things” to happen in the future.

PWS

10-05-17

GONZO’S WORLD: HOMOPHOBIC AG ATTACKS LGBTQ COMMUNITY WITH BOGUS LEGAL MEMO STRIPPING TRANSGENDER INDIVIDUALS OF CIVIL RIGHTS PROTECTIONS!

https://www.buzzfeed.com/dominicholden/jeff-sessions-just-reversed-a-policy-that-protects

Dominic Holden reports for BuzzFeed News:

“US Attorney General Jeff Sessions has reversed a federal government policy that said transgender workers were protected from discrimination under a 1964 civil rights law, according to a memo on Wednesday sent to agency heads and US attorneys.

Sessions’ directive, obtained by BuzzFeed News, says, “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.”

It adds that the government will take this position in pending and future matters, which could have far-reaching implications across the federal government and may result in the Justice Department fighting against transgender workers in court.

“Although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se,” Sessions writes. “This is a conclusion of law, not policy. As a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress.”

But Sharon McGowan, a former lawyer in the Justice Department’s Civil Rights Division and now an attorney for the LGBT group Lambda Legal, countered that Sessions’ is ignoring a widespread trend in federal courts.

“It’s ironic for them to say this is law, and not policy,” McGowan told BuzzFeed News. “The memo is devoid of discussion of the way case law has been developing in this area for the last few years. It demonstrates that this memo is not actually a reflection of the law as it is — it’s a reflection of what the DOJ wishes the law were.”

“The sessions DOJ is trying to roll back the clock and pretend that the progress of the last decade hasnt’ happened,” she added. “The Justice Department is actually getting back in the business of making anti-transgender law in court.”

“The Justice Department is actually getting back in the business of making anti-transgender law in court.”
The memo reflects the Justice Department’s aggression toward LGBT rights under President Trump and Sessions, who reversed an Obama-era policy that protects transgender students after a few weeks in office. Last month, Sessions filed a brief at the Supreme Court in favor of a Christian baker who refused a wedding cake to a gay couple. And last week, the department argued in court that Title VII doesn’t protect a gay worker from discrimination, showing that Sessions will take his view on Title VII into private employment disputes.

At issue in the latest policy is how broadly the government interprets Title VII of the Civil Rights Act of 1964, which does not address LGBT rights directly. Rather, it prohibits discrimination on the basis of sex.

But the Equal Employment Opportunity Commission, an independent agency that enforces civil rights law in the workplace, and a growing body of federal court decisions have found sex discrimination does include discrimination on the basis of gender identity and sex stereotyping — and that Title VII therefore bans anti-transgender discrimination as well.

Embracing that trend, former attorney general Eric Holder under President Obama announced the Justice Department would take that position as well, issuing a memo in 2014 that said, “I have determined that the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status. The most straightforward reading of Title VII is that discrimination ‘because of … sex’ includes discrimination because an employee’s gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex.”

But Sessions said in his latest policy that he “withdraws the December 15, 2014, memorandum,” and adds his narrower view that the law only covers discrimination between “men and women.”

“The Department of Justice will take that position in all pending and future matters (except where controlling lower-court precedent dictates otherwise, in which event the issue should be preserved for potential future review),” Sessions writes.

Sessions adds: “The Justice Department must and will continue to affirm the dignity of all people, including transgender individuals. Nothing in this memorandum should be construed to condone mistreatment on the basis of gender identity, or to express a policy view on whether Congress should amend Title VII to provide different or additional protections.”

Devin O’Malley, a spokesperson for the Justice Department, explained the decision to issue the memo, telling BuzzFeed News, “The Department of Justice cannot expand the law beyond what Congress has provided. Unfortunately, the last administration abandoned that fundamental principle, which necessitated today’s action. This Department remains committed to protecting the civil and constitutional rights of all individuals, and will continue to enforce the numerous laws that Congress has enacted that prohibit discrimination on the basis of sexual orientation.”

McGowan, from Lambda Legal, counters, “The memo is so weak that analysis is so thin, that it will courts will recognize it for what it is — a raw political document and not sound legal analysis that should be given any weight by them.”

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

Virulent homophobia has always been a key element of the “Gonzo Apocalypto Agenda.” Check out this report from Mark Joseph Stern at Slate about how when serving as Alabama’s Attorney General Gonzo attempted to use an Alabama statute that had been ruled unconstitutional by a Federal Judge to both publicly demean LGBTQ students and stomp on their First Amendment rights. (So much for the disingenuous BS speech that Gonzo delivered on Free Speech at Georgetown Law last week.) Here’s what happened:

“Attorney General Jeff Sessions delivered a speech at Georgetown University Law Center in which he argued that “freedom of thought and speech on the American campus are under attack.” As my colleague Dahlia Lithwick explained, the attorney general said this in “a room full of prescreened students who asked him prescreened questions while political demonstrators outside were penned off in ‘free speech zones.’ ” Ensconced in a safe space of his own, Sessions blasted the notion that speech can be “hurtful,” criticizing administrators and students for their “crackdown” on “speech they may have disagreed with.”

Mark Joseph Stern
MARK JOSEPH STERN
Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Sessions’ hypocrisy on speech issues is not a new development. In 1996, the then–attorney general of Alabama used the full power of his office to try to shut down an LGBTQ conference at the University of Alabama. Sessions took his battle to court, asking a federal judge to let him block the conference altogether—or, at the very least, silence students who wished to discuss LGBTQ issues. He ultimately failed, but his campaign reveals a great deal about his highly selective view of free expression. Sessions claims to support freedom for “offensive” speech, but when speech offends him, he is all too happy to play the censor.

When Sessions served as Alabama attorney general, the state still criminalized sodomy. A 1992 law, Alabama Education Code Section 16-1-28, also barred public universities from funding, recognizing, or supporting any group “that fosters or promotes a lifestyle or actions prohibited by” the sodomy statute, either “directly or indirectly.” The law also forbade schools from allowing such organizations to use public facilities. Sessions’ predecessor, Jimmy Evans, had interpreted the statute to effectively outlaw the discussion or promotion of gay rights on public campuses, with that prohibition even extending to AIDS awareness campaigns.

In 1995, the University of South Alabama’s Gay Lesbian Bisexual Alliance sued in federal court to block Section 16-1-28. That summer, the U.S. Supreme Court had ruled that, under the First Amendment, public universities may not deny access to facilities or funding for student organizations on the basis of their viewpoints. This decision, the GLBA asserted, rendered Section 16-1-28 unconstitutional. U.S. District Judge Myron H. Thompson agreed, holding the law to be invalid in a January 1996 ruling.

This decision was excellent news for the Gay Lesbian Bisexual Alliance at the University of Alabama at Tuscaloosa. The GLBA had planned to host the Fifth Annual Lesbian, Gay, and Bisexual College Conference of the Southeastern United States in February 1996. Sessions, by now attorney general, was trying his hardest to shut it down.

“University officials say they’re going to try to obey the law,” Sessions said at the time, as CNN’s Andrew Kaczynski reported in December of last year. “I don’t see how it can be done without canceling this conference. I remain hopeful that if the administration does not act, the board of trustees will.” Sessions didn’t give up even after Judge Thompson struck down the law. “I intend to do everything I can to stop that conference,” he said.

In a last-ditch effort, Sessions returned to Thompson’s court and asked permission to ban the conference. “The State of Alabama,” he explained in court filings, “will experience irreparable harm by funding a conference and activities in violation of state law.” Failing a total ban, Sessions implored Thompson to let him censor any discussion of “safe sex and the prevention of sexually transmitted diseases.” Sessions claimed that, by talking about LGBTQ issues, conference attendees were essentially conspiring to promote criminal activity, and Alabama should not be obligated to support their criminality. Predictably, Thompson rejected Sessions’ arguments, writing that the attorney general was endeavoring to violate students’ free speech rights. Sessions then appealed to the 11th U.S. Circuit Court of Appeals, which unanimously ruled against Alabama. The conference went on as planned.

Cathy Lopez Wessell, a lead organizer and spokeswoman for the conference, told me Sessions’ intervention “was incredibly stressful. We got threatening phone calls. We were attacked from all sides.” She continued, “We were the abomination of the month. I didn’t feel safe in the world for a while. I started to internalize some of the judgment leveled at our group. I thought, there must be something deeply wrong with you if you need to be silenced.”

Lopez Wessell explained that Sessions’ campaign against the conference registered as a broader attack on LGBTQ students.

“If we can’t talk, do we have a right to exist?” Lopez Wessell asked. “If our speech is so dangerous that it needs to be stopped, then are we dangerous? We weren’t promoting any particular activity; we just wanted to talk—about our experiences, about our existence.”

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

Denying the humanity as well as the human rights of those he is biased against is a staple of the Gonzo Apocalypto agenda. Just look at his constant attempts to tie all members of the Hispanic ethnic community to crime, drugs, and gangs (even though all credible studies show that immigrants or all types have markedly lower crime rates than native-born U.S. citizens) and his false and gratuitous attempts to tie “Dreamers” to crime, terrorism, and loss of jobs!

There is no more certain way of knowing that a DOJ “legal” memo is all policy and no law than the statement: “This is a conclusion of law, not policy.“ In other words, “Don’t you dare accuse me of doing what I’m actually doing!”

Since assuming the office of Attorney General for which he is so spectacularly unqualified, here’s a list of the folks whose rights or humanity Sessions has attacked or disparaged:

Hispanics

African Americans

LGBTQ Individuals

Dreamers

Immigrants

Refugees

Asylum Seekers

Poor People

Undocumented Migrants

Women

Muslims

Civil Rights Protesters

Black Athletes

City Officials Seeking To Foster Community Law Enforcement

Prisoners

Immigration Detainees

Forensic Scientists

State Governors Who Disagree With Him

Federal Judges Who Find Trump Policies Illegal

State & Federal Judges Who Object To Migrants Being Arrested At Their Courts

Convicts

Liberal Students & College Administrators

Anti-Facists

Anti-Hate-Group Activists

Reporters

Unaccompanied Migrant Children

President Obama

Whistleblowers (a/k/a “Leakers” in “Gonzopeak”)

DOJ Career Attorneys

I’m sure I’ve left a few out. Feel free to send me additions. The list just keeps getting longer all the time.

The only group that appears to be “A-OK” with Gonzo is “White straight Christian male Republican ultra rightists.”

Liz was right!

PWS

10-05-17

SURPRISE: Dreamer “Agreement” Coming Apart — Trump’s Position Unclear!

http://www.slate.com/articles/news_and_politics/politics/2017/10/trump_s_dreamer_deal_is_falling_apart.html

Jim Newell reports for Slate:

“First and foremost,” Iowa Sen. Chuck Grassley, the chairman of the committee, said in his opening remarks, “any potential deal on DACA has to include robust border security, and by that, I don’t mean a wall.”

This was the quote that garnered the most coverage and inspired some optimistic tea leaf reading. If congressional Republicans weren’t going to insist on a border wall as part of a deal to protect Dreamers, as per the “deal” Democratic leaders struck with President Trump last month, then a Dreamer-saving compromise would be much more assured.

But the wall isn’t shaping up to be the problem. The problem is what Grassley brought up a few seconds later.

“Second, and equally as important as robust border security,” he said, “we’ve got to make sure any deal includes meaningful interior enforcement.”

This is a development that Dreamers themselves have been concerned about since Democrats announced they would engage with the president to find a replacement for DACA. As the New York Times reported over the weekend, Dreamers fear that their “own long-term safety might be secured only in exchange for an increased threat of deportation for their undocumented parents and friends who do not qualify for such protections under the program.” The latest version of the DREAM Act could secure green cards for 1.5 million people. But if such a deal increases the likelihood of deportation for the vast majority of the nation’s roughly 11 million undocumented immigrants, it’s not exactly a feel-good trade.

The problem with making any handshake agreement with Trump, as House Minority Leader Nancy Pelosi and Senate Minority Leader Chuck Schumer did last month, is that he will most likely change his mind once he finds himself in a roomful of different people with different demands. That meeting took place Monday night, when Trump hosted a dinner with congressional Republicans who expect much more out of a DACA deal. Trump surely wanted to win that room, too.

The agreement Trump made with Schumer and Pelosi—so they thought—would have been to pass the DREAM Act in exchange for non-wall border security measures. You know, drones and lasers and radar gizmos and stuff. But according to Arkansas Sen. Tom Cotton, an immigration hawk who was at the dinner on Monday night, “the president was very clear” that any deal should only pertain to those Dreamers who “have a DACA permit today,” a significantly lower number than the amount that would be covered under the DREAM Act, and that “it ought to include some kind of enhanced measures, whether it’s on the border or interior enforcement or what have you.” As Georgia Sen. David Perdue, a fellow immigration hawk who’s co-sponsored a bill with Cotton to reduce legal immigration, told me Tuesday, it was clear that any Dreamer deal he’d be willing to support would encompass “enforcement” on both the border and the interior.

Ratcheting up the deportation apparatus to a new level is not what congressional Democrats signed up for when they engaged President Trump in finding a DACA replacement.

Connecticut Sen. Chris Murphy told me Tuesday that an insistence on ramped-up interior enforcement would be “a problem” for his caucus. “I’m not sure that you can get much tougher interior enforcement than you have today,” he said, “as we’re watching pretty arbitrary deportations happen all across our country.” When I asked Hawaii Sen. Mazie Hirono what would constitute a bridge too far for Democrats, she said any give-and-take needs to be kept “in proportion.” As she pointed out, Republicans are starting to ask for all of the border security and interior enforcement measures included in the failed 2013 comprehensive immigration bill, in exchange for far fewer of that bill’s protections for undocumented immigrants. “I think, as [Illinois Democratic Sen.] Dick Durbin says, that is way too much,” Hirono told me.”

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

Read the full article at the link.

Dreamer relief should be a “no-brainer.” But, the GOP appears to be looking for ways to “tank” it, perhaps because Trump had the audacity to speak to the Dems first. Also, the GOP’s restrictionist views are out of line with the majority of Americans and with nearly all credible immigration experts. Yet, the minority restrictionist position is immensely popular with the GOP’s White Nationalist, xenophobic, racist “base.” And today’s GOP is so beholden to that base that they won’t work with the Dems on reasonable immigration proposals.

If anything should be clear at this point it’s that giving DHS more enforcement personnel at present is close to insane. The waste, incompetence, and gratuitous cruelty in the current DHS enforcement operations are astounding. Until existing personnel are used and deployed in a rational, efficient, and honest manner, there is simply no case for more.

Don’t know how this will come out. Perhaps, the parties are just jockeying for position and playing to their respective bases. But, it could turn ugly for both the Dreamers and for America.

PWS

10-04-17

THE INTERCEPT: “Internal Emails Show ICE Agents Struggling to Substantiate Trump’s Lies About Immigrants”

https://theintercept.com/2017/10/04/ice-raids-trump-immigration-deportation/

Alice Speri reports:

“AS HUNDREDS OF undocumented immigrants were rounded up across the country last February in the first mass raids of the Trump administration, Immigration and Customs Enforcement officials went out of their way to portray the people they detained as hardened criminals, instructing field offices to highlight the worst cases for the media and attempting to distract attention from the dozens of individuals who were apprehended despite having no criminal background at all.

On February 10, as the raids kicked off, an ICE executive in Washington sent an “URGENT” directive to the agency’s chiefs of staff around the country. “Please put together a white paper covering the three most egregious cases,” for each location, the acting chief of staff of ICE’s Enforcement and Removal Operations wrote in the email. “If a location has only one egregious case — then include an extra egregious case from another city.”

The email indicated the assignment was due that night, but a day later, an agent at ICE’s San Antonio office sent an internal email saying the team had come up short. “I have been pinged by HQ this morning indicating that we failed at this tasking,” the agent wrote.

As the hours passed, the pressure on local agents to come up with something grew more intense. “As soon as you come in, your sole focus today will be compiling three egregious case write-ups,” an assistant field office director at the agency’s Austin Resident Office wrote to that team on February 12, noting that the national and San Antonio offices were growing impatient. “HQ and SNA will ping us in the afternoon for sure.”

Then the agent added that a team of officers had “just picked up a criminal a few minutes ago, so get with him for your first egregious case.”

. . . .

There is no question that there are lives at stake.

While Austin’s comments on the retaliatory nature of the Travis County raids drew fleeting attention to the politicization of federal enforcement operations, Coronilla-Guerrero, the man whose case was under review that day, was eventually deported, despite his wife telling the judge that his life would be at risk in Mexico, from where he had fled because of gang threats.

Last month, armed men dragged Coronilla-Guerrero out of the relatives’ home where he had been staying in the state of Guanajuato, while he was asleep with one of his children. His body was found on the street the next morning.“

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

Read the complete article, with copies of internal memos, at the link.

Hardly surprising that the Administration’s “Migrant Menace” narrative is bogus. Also, not surprising that under Trump agents are being required to basically fabricate support for the false narratives. Someday, probably long after I’m gone, all the records of this Administration will become public. I predict that they will show that the fraud, waste, and abuse documented here is just the “tip of the iceberg” of monumental dishonesty of this Administration on the subject of immigration.

I wouldn’t be at all surprised if the recent DOJ/EOIR claims that statistics support the effectiveness of the “Judge Surge” involves this type of manipulation of evidence to document a pre-determined conclusion demanded by Trump Politicos and intended to disguise the truth.

PWS

10-04-17

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