U.S. Constitution – Page 294 – immigrationcourtside.com

AILA TV: In Less Than 5 Minutes, Superstar Attorney Dree Collopy Tells You Everything You Need To Know About The Revised USCIS Guidance On Credible/Reasonable Fear — Must Watch TV!

Here’s the You-Tube link.

https://www.youtube.com/watch?v=CgVJkysse2Y

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Great job by Dree!

Bottom Line: Under pressure from the Trump Administration, USCIS is tilting the system against (largely unrepresented) asylum applicants from the Northern Triangle. The only questions are 1) whether the Immigration Courts will follow suit, and 2) if so, whether the Article III Courts will blow or swallow (as they have done so far in the credible/reasonable fear context) the whistle on due process for the most vulnerable.

A good introduction to reality for anyone who believes that conscientious career civil servants will be able to persevere in the face of the Trump Administration’s all-out assault on due process and fundamental fairness.

WALTER PINCUS IN THE NEW YORK REVIEW OF BOOKS: The Coming Immigration Court Disaster!

http://www.nybooks.com/daily/2017/03/01/trump-us-immigration-waiting-for-chaos/?utm_medium=email&utm_campaign=NYR Dennett immigration reform Chopin&utm_content=NYR Dennett immigration reform Chopin+CID_c0a3091a06cff6ddbb541b093215f280&utm_source=Newsletter&utm_term=US Immigration Waiting for Chaos

“One thing however is clear. Trump’s recent efforts to use blunt executive power to close our borders and prepare the way for deporting large numbers of undocumented immigrants are confronting far-reaching problems. Not only is there opposition from federal judges, the business sector, civil liberties groups, and others. There is also a major roadblock from another quarter: our already broken system of immigration laws and immigration courts.

The nation’s immigration laws needed repair long before Trump came to office. Even without the measures taken by the new administration, immigration courts face a backlog of hundreds of thousands of cases, while the existing detention system is plagued, not just by arbitrary arrests, but also by deep problems in the way immigrant detainees are handled by our courts, one aspect of which is the subject of a Supreme Court challenge.

But will the potential Trump excesses—driven by the president’s fear mongering about immigrant crimes and the alleged potential for terrorists to pose as refugees—be enough to light a fire under a Republican-led Congress that has for years balked at immigration reform?

. . . .

For better or worse—and it may turn out to be worse if Congress continues to refuse to act—the Trump administration’s determination to enforce current laws has pushed long-standing inequities in immigration justice onto the front pages.

Take the matter of those immigration judges, who now number some three hundred and are scheduled to grow substantially under the Trump administration. In April 2013, the National Association of Immigration Judges issued a scathing report pleading for omnibus immigration reform. Describing the morale of the immigration judge corps as “plummeting,” the report found that “the Immigration Courts’ caseload is spiraling out of control, dramatically outpacing the judicial resources available and making a complete gridlock of the current system a disturbing and foreseeable probability.”

The judges also noted that, “as a component of the DOJ [Department of Justice], the Immigration Courts remain housed in an executive agency with a prosecutorial mission that is frequently at odds with the goal of impartial adjudication.” For example, the judges are appointed by the Attorney General and “subject to non-transparent performance review and disciplinary processes as DOJ employees.” As a result, “they can be subjected to personal discipline for not meeting the administrative priorities of their supervisors and are frequently placed in the untenable position of having to choose between risking their livelihood and exercising their independent decision-making authority when deciding continuances”—the postponement of a hearing or trial.

The immigration judges writing this complaint were working under the Obama administration Justice Department, with Eric Holder as attorney general. What will their situation be like with Attorney General Jeff Sessions, a believer in tighter immigration controls, as their boss?

As it is now, an immigration judge’s job is exhausting. They carry an average load of 1,500 cases, but have minimal staff support. In the 2013 report, the immigration judges noted that they have no bailiffs, no court reporters, and only one quarter of the time of a single judicial law clerk. The backlog of immigration cases in the United States now stands at roughly 542,000. Most important, the immigration judges claim some 85 percent of detained immigrants appearing before them are unrepresented by counsel.

Meanwhile, another pending lawsuit highlights a different long-running problem concerning our nation’s immigration judges. In June 2013, the American Immigration Lawyers Association, along with Public Citizen and the American Immigration Council (AIC) filed a case in federal district court in Washington, D.C., seeking documents that would disclose whether the federal government adequately investigated and resolved misconduct complaints against immigration judges.

Such complaints have been widespread enough that the Justice Department reports annually on the number. In fiscal 2014, the latest figures published, there were 115 complaints lodged against 66 immigration judges. Although 77 were listed as resolved, the outcomes are not described.”

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This timely article was brought to my attention by my good friend and former colleague retired U.s. Immigration Judge (NY) Sarah Burr. Walter Pincus is a highly respected national security reporter. He’s not by any means an “immigration guru.”

As I have pointed out in previous blogs and articles, this problem is real! In the absence of sensible, bipartisan immigration reform by Congress, which must include establishing an independent immigration judiciary, our entire Federal Justice System is at risk of massive failure.

Why? Because even now, immigration review cases are one of the largest, if not the largest, components of the civil dockets of the U.S. Courts of Appeals. As due process in the Immigration Courts and the BIA (the “Appellate Division” of the U.S. Immigration Courts) deteriorates under excruciating pressure from the Administration, more and more of those ordered removed will take their cases to the U.S. Courts of Appeals. That’s potentially hundreds of thousands of additional cases. It won’t be long before the Courts of Appeals won’t have time for anything else but immigration review.

In my view, that’s likely to provoke two responses from the Article III Courts. First, the Circuits will start imposing their own minimum due process and legal sufficiency requirements on the Immigration Courts. But, since there are eleven different Circuits now reviewing immigration petitions, that’s likely to result in a hodgepodge of different criteria applicable in different parts of the country. And, the Supremes have neither the time nor ability to quickly resolve all Circuit conflicts.

Second, many, if not all Courts of Appeals, are likely to return the problem to the DOJ by remanding thousands of cases to the Immigration Courts for “re-dos” under fundamentally fair procedures. Obviously, that will be a massive waste of time and resources for both the Article III Courts and the Immigration Courts. It’s much better to do it right in the first place. “Haste makes waste.”

No matter where one stands in the immigration debate, due process and independent decision making in the U.S. Immigration Courts should be a matter of bipartisan concern and cooperation. After all, we are a constitutional republic, and due process is one of the key concepts of our constitutional system.

PWS

03/02/17

Raul Reyes On CNN: Trump’s “Softening” On Immigration A “Cruel Hoax” — “The Most Anti-Immigrant President In Modern History”

http://www.cnn.com/2017/03/01/opinions/trump-bait-and-switch-on-immigration-reyes/index.html

“Then came Trump’s address before Congress, and his true intentions were revealed. His talk of immigration reform, we now know, was just that: Talk. At best, his earlier statements about immigration reform were a publicity stunt designed to gin up interest (and ratings, which Trump is obsessed with) in his speech. At worst, this bait-and-switch was a cruel hoax perpetrated on millions of undocumented people who might have briefly hoped for a reprieve from possible deportation.
In fact, Trump’s speech offered little meaningful policy on immigration, beyond conflating immigrants with crime and misrepresenting key facts underlying illegal immigration. Tellingly, there was no mention of offering legalization to anyone.

. . . .

Yes, such reform is possible, but it is unlikely Trump will expend any political capital making it happen. He was elected by a base that is fervently opposed to anything resembling “amnesty.” He has surrounded himself with advisers like white nationalist champion Steve Bannon, the xenophobic Stephen Miller, and Attorney General Jeff Sessions, who wants curbs on legal immigration.”

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PWS

03/02/17

SLATE: Bannon, Sessions, Miller Plan To Use Justice Department To Implement Far Right Agenda!

https://www.nytimes.com/2017/02/28/magazine/jeff-sessions-stephen-bannon-justice-department.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=b-lede-package-region®ion=top-news&WT.nav=top-news

Emily Bazelon reports:

“One night in September 2014, when he was chief executive of Breitbart News, Stephen Bannon hosted cocktails and dinner at the Washington townhouse where he lived, a mansion near the Supreme Court that he liked to call the Breitbart Embassy. Beneath elaborate chandeliers and flanked by gold drapes and stately oil paintings, Jeff Sessions, then a senator from Alabama, sat next to the guest of honor: Nigel Farage, the insurgent British politician, who first met Sessions two years earlier when Bannon introduced them. Farage was building support for his right-wing party by complaining in the British press about “uncontrolled mass immigration.” Sessions, like other attendees, was celebrating the recent collapse in Congress of bipartisan immigration reform, which would have provided a path to citizenship for some undocumented people. At the dinner, Sessions told a writer for Vice, Reid Cherlin, that Bannon’s site was instrumental in defeating the measure. Sessions read Breitbart almost every day, he explained, because it was “putting out cutting-edge information.”

Bannon’s role in blocking the reform had gone beyond sympathetic coverage on his site. Over the previous year, he, Sessions and one of Sessions’s top aides, Stephen Miller, spent “an enormous amount of time” meeting in person, “developing plans and messaging and strategy,” as Miller later explained to Rosie Gray in The Atlantic. Breitbart writers also reportedly met with Sessions’s staff for a weekly happy hour at the Union Pub. For most Republicans in Washington, immigration was an issue they wished would go away, a persistent source of conflict between the party’s elites, who saw it as a straightforward economic good, and its middle-class voting base, who mistrusted the effects of immigration on employment. But for Bannon, Sessions and Miller, immigration was a galvanizing issue, lying at the center of their apparent vision for reshaping the United States by tethering it to its European and Christian origins. (None of them would comment for this article.) That September evening, as they celebrated the collapse of the reform effort — and the rise of Farage, whose own anti-immigration party in Britain represented the new brand of nativism — it felt like the beginning of something new. “I was privileged enough to be at it,” Miller said about the gathering last June, while a guest on Breitbart’s SiriusXM radio show. “It’s going to sound like a motivational speech, but it’s true. To all the voters out there: The only limits to what we can achieve is what we believe we can achieve.”

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Talk about “the fox guarding the chicken coop!” And, I don’t share Bazelon’s view that DOJ career attorneys will be a significant moderating influence.

They all work for Jeff Sessions. Resisting Administration policies or positions could be considered insubordination — a ground for firing. Short of that, those who don’t “get with the program” could find themselves demoted, denied pay increases, transferred to obscure offices (perhaps in different locations), or given meaningless “busywork” assignments as punishment. In DOJ lingo the disfavored and exiled are known as “hall walkers.”

Yes, it’s true that in many past Administrations those with opposing views were tolerated and often even had their differing perspectives considered and occasionally adopted. That often had a moderating effect. But, that assumes an Administration acting in good faith. Sounds like Sessions and his colleagues have already decided to dismantle those parts of the U.S. justice system that don’t fit their ultra nationalist, restrictionist, white-power-Christian-oriented agenda. It could be a long four years at the DOJ for career lawyers (those who survive). Sad!

PWS

02/28/17

New Administration “Travel Ban” Likely On Wednesday — Revisions Will Address Some Issues That Troubled Courts

https://www.washingtonpost.com/world/national-security/new-travel-ban-will-exempt-current-visa-holders/2017/02/28/42ac1f3a-fe03-11e6-99b4-9e613afeb09f_story.html?hpid=hp_rhp-top-table-main_trumpban-0608pm%3Ahomepage%2Fstory&utm_term=.33edc3e29145

Matt Zapotosky reports in the Washington Post:

“Barring any last minute changes, President Trump will sign a revised travel ban that exempts current visa holders, according to a person familiar with the matter.

The revision marks a significant departure from the now-frozen first executive order, which temporarily barred refugees and citizens of seven Muslim-majority countries from entering the United States, and resulted in the State Department unilaterally revoking tens of thousands of visas. Justice Department lawyers hope the new order will be more likely to withstand legal challenges and will not leave any travelers detained at U.S. airports.

The new order also removes an exception to the refugee prohibition for religion minorities, the person said. Critics of the order had said that exception proved it was meant to discriminate on the basis of religion, because it allowed only Christians into the country.
The new order, the details of which were first reported by the Wall Street Journal, is expected to be signed Wednesday. The person who described it to The Post did so on the condition of anonymity because the administration had not authorized the release of details.”

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I would expect advocates to quickly challenge the new order. If the Administration backs up the order with some evidence supporting its actions, the legal challenges might be more difficult this time around.

PWS

02/28/17

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UPDATE: NBC News reports Wednesday morning that the White House now says that the new Travel Ban Order will be further delayed.

PWS

03/01/17

USA TODAY: Former Bush, Obama DHS Execs Say Expanded Expedited Removal Could Be Legally Problematic

http://www.usatoday.com/story/news/nation/2017/02/24/president-trumps-expedited-removal-plan-may-be-illegal/98276078/

Alan Gomez reports:

“That expansion threatens the constitutional rights of undocumented immigrants who may get mistakenly deported, warned John Sandweg, who headed Immigration and Customs Enforcement (ICE) under President Obama.

“The Supreme Court has consistently held that even undocumented immigrants are entitled to due process,” he said.

Sandweg added that expedited removals have been a valuable tool for immigration agents working near the border when they are dealing with clear-cut cases of illegal entry.

Julie Myers Wood, who headed ICE under President George W. Bush, agreed. She said her team considered expanding expedited removals, but decided against it because of legal concerns. She said other aspects of Trump’s tougher immigration enforcement plan also may run afoul of the law.

“Many of these authorities have never been used that way,” Wood said. “The administration is really testing the parameters of what’s acceptable. There is some litigation risk there.”

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Stay tuned.

PWS

02/27/17

Alexandria Churches Walk In Solidarity With Hispanic Neighbors In Arlandria!

Led by Father Robert Malm of Grace Episcopal Church and Pastor Deborah Porras of Beverley Hills Community United Methodist Church, members of both Alexandria, VA congregations joined together for a walk through the Arlandria Area of Alexandria to show solidarity and support with neighbors from the Hispanic migrant community. The walk took place on Sunday Morning, February 26, 2018. As noted by Father Malm, God sent a perfect day for a walk. Pictures below.

PWS

02/27/17

WashPost VA POLITICS: Gov. McAuliffe Meets With DHS Sec. Kelly — Says DHS Assures No “Random Raids!”

https://www.washingtonpost.com/local/virginia-politics/mcauliffe-says-trump-administration-promises-no-random-immigration-arrests/2017/02/26/5d6a2722-fc5a-11e6-8f41-ea6ed597e4ca_story.html?hpid=hp_local-news_mcauliffe-0435pm%3Ahomepage%2Fstory&utm_term=.9d7c237ac950

Gregory S. Schneider reports:

“Virginia Gov. Terry McAuliffe (D) said Department of Homeland Security Secretary John F. Kelly assured him Sunday that immigration agents are not conducting random raids and will not target undocumented residents unless they are suspected of being involved in illegal activity.

“He explained to me what the new procedures were,” McAuliffe said Sunday after a private 45-minute briefing with Kelly, who is a retired general. “I do take a four-star U.S. Marine general at his word.”

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Sure seems like Gen. Kelly and the White House are giving different messages here.

PWS

02/26/17

NEW SCHOLARSHIP: Hon. Dorothy Harbeck Compares Immigration Bonds With The NJ Bail Reform Act

Harbeck – BondArticle for Dissemination

The article is entitled

“A NEW CALCULUS FOR THE MEASURE OF MERCY: DOES THE NEW JERSEY BAIL REFORM AFFECT THE IMMIGRATION COURT BOND HEARINGS?” It’s published in the Rutgers Law Record.

Judge Harbeck writes:

“[T]he New Jersey Bail Reform will not directly affect how the immigration courts determine immigration bonds. However, while the state criminal system is wholly distinct from the federal immigration system, there are increasing intersections of state law having unintended consequences in immigration proceedings. Under the Supremacy Clause of the US Constitution, federal law is the “Supreme Law of the Land,” and states have no authority to regulate immigration enforcement. That said, there are a number of similar rationales between the new state bail reform and the existing bond determination criteria in the immigration court. This article outlines those similarities as well as the differences between the two. It is also important to note from a practical point of view that New Jersey bail reform has no impact on immigration detainers. An immigration detainer is the process by which Immigration and Customs Enforcement (ICE), a component of the Department of Homeland Security (DHS) may detain a non-citizen without a warrant, but only if ICE has “reason to believe” that the non-citizen “is likely to escape before a warrant can be obtained for his arrest.”

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Read the full article at the link. While Judge Harbeck’s timely scholarship is of particular interest to New Jersey lawyers, it is also helpful for any lawyer seeking to understand the bond setting process in U.S. Immigration Courts. With the Administration’s new enforcement initiatives underway, bond is sure to be a “hot topic.”

PWS

02/26/17

HuffPost: Sessions Reinstates Dangerous Private Prisons — Health & Safety of Inmates Takes Back Seat to Expediency And Profits For Private Prison Industry!

http://www.huffingtonpost.com/entry/doj-private-prisons-sessions_us_58af529ce4b0a8a9b780669a

Ryan J. Reilly a Ben Walsh report:

“WASHINGTON ― Attorney General Jeff Sessions on Thursday withdrew an Obama-era Justice Department memo that set a goal of reducing and ultimately ending the Justice Department’s use of private prisons.

In a one-page memo to the acting head of the Bureau of Prisons, Sessions wrote that the August 2016 memo by former Deputy Attorney General Sally Yates “changed long-standing policy and practice, and impaired the Bureau’s ability to meet the future needs of the federal correctional system.”

A Justice Department spokesman said Sessions’ memo “directs the Bureau of Prisons to return to its previous approach to the use of private prisons,” which would “restore BOP’s flexibility to manage the federal prison inmate population based on capacity needs.”

BOP currently has 12 private prison contracts that hold around 21,000 inmates. Yates had said that private prisons compared “poorly” to BOP prisons. Her memo followed a damning report from the Justice Department’s inspector general which found that privately run facilities were more dangerous than those run by BOP.

The two largest private prison companies have told investors that they have room to accommodate increased use of their prisons by federal or state and local authorities. On an earnings call with stock analysts this week, executives at GEO Group emphasized that their company has a total of 5,000 spots in its prisons that are presently either unused or underutilized.

GEO senior vice President David Donahue put it fairly bluntly, telling analysts that their idle and underutilized cells are “immediately available and meet ICE’s national detention standards.”

CoreCivic, formerly known as CCA, told investors on Feb. 17 that the company has nine idle prisons that can hold a total of 8,700 people. Those prisons are ready to accept inmates on short notice. “All of our idle facilities are modern and well maintained, and can be made available to potential state and federal partners without much, if any capital investment or the lead-time required for new construction,” CEO Damon Hininger said.

Indeed, Haninger said that CoreCivic was already holding more detained immigrants for the federal government than they anticipated. “Our financial performance in the fourth quarter of 2016 was well above our initial forecast due, in large part, to heightened utilization by ICE across the portfolio,” he said.

And, Haninger said, the Trump administration’s actions could boost financial performance even further. “When coupled with the above average rate crossings along the Southwest border, these executive orders appear likely to significantly increase the need for safe, humane and appropriate detention bed capacity that we have available in our existing real-estate portfolio,” he said. “We are well positioned,” to get more business from ICE, Haninger said.

David C. Fathi, who directs the American Civil Liberties Union’s National Prison Project, said that giving for-profit companies control of prisons is “a recipe for abuse and neglect.” He said the Sessions memo was a further sign the U.S. “may be headed for a new federal prison boom” under the Trump administration.”

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The disaster of Jeff Sessions as U.S. Attorney General continues to unfold. Contrary to what he told Senators during his contentious confirmation hearings, he’s the same old tone-deaf, insensitive, hard-liner he’s always been. There will be wrongful death suits in Sessions’s future naming him personally. While these so-called “Bivens actions” are usually a steep uphill climb for plaintiffs, given that Sessions acted with knowledge of both the Inspector General’s highly negative findings and his predecessor’s resulting action to curb private prison use, there could be a case there. I hope he took out personal liability insurance and got the highest amount of coverage. He might need it before his tenure is up.

And, as for the inmates and civil immigration detainees who are going to be kept in substandard conditions, I guess it’s just “tough noogies” as far as Sessions is concerned.

PWS

Zoe Tillman on BuzzFeed: U.S. Immigration Courts Are Overwhelmed — Administration’s New Enforcement Priorities Could Spell Disaster! (I’m Quoted In This Article, Along With Other Current & Former U.S. Immigration Judges)

https://www.buzzfeed.com/zoetillman/backlogged-immigration-courts-pose-problems-for-trumps-plans?utm_term=.pokrzE6BW#.wcMKevdYG

Zoe Tillman reports:

“ARLINGTON, Va. — In a small, windowless courtroom on the second floor of an office building, Judge Rodger Harris heard a string of bond requests on Tuesday morning from immigrants held in jail as they faced deportation.
The detainees appeared by video from detention facilities elsewhere in the state. Harris, an immigration judge since 2007, used a remote control to move the camera around in his courtroom so the detainees could see their lawyers appearing in-person before the judge, if they had one. The lawyers spoke about their clients’ family ties, job history, and forthcoming asylum petitions, and downplayed any previous criminal record.
In cases where Harris agreed to set bond — the amounts ranged from $8,000 to $20,000 — he had the same message for the detainees: if they paid bond and were set free until their next court date, it would mean a delay in their case. Hearings set for March or April would be pushed back until at least the summer, he said.
But a couple of months is nothing compared to timelines that some immigration cases are on now. Judges and lawyers interviewed by BuzzFeed News described hearings scheduled four, five, or even six years out. Already facing a crushing caseload, immigration judges are bracing for more strain as the Trump administration pushes ahead with an aggressive ramp-up of immigration enforcement with no public commitment so far to aid backlogged courts.
Immigration courts, despite their name, are actually an arm of the US Department of Justice. The DOJ seal — with the Latin motto “qui pro domina justitia sequitur,” which roughly translates to, “who prosecutes on behalf of justice” — hung on the wall behind Harris in his courtroom in Virginia. Lawyers from the US Department of Homeland Security prosecute cases. Rulings can be appealed to the Board of Immigration Appeals, which is also part of the Justice Department, and then to a federal appeals court.
As of the end of January, there were more than 540,000 cases pending in immigration courts. President Trump signed executive orders in late January that expanded immigration enforcement priorities and called for thousands of additional enforcement officers and border patrol officers. But the orders are largely silent on immigration courts, where there are dozens of vacant judgeships. And beyond filling the vacancies, the union of immigration judges says more judges are needed to handle the caseload, as well as more space, technological upgrades, and other resources.
Homeland Security Secretary John Kelly acknowledged the immigration court backlog in a memorandum released this week that provided new details about how the department would carry out Trump’s orders. Kelly lamented the “unacceptable delay” in immigration court cases that allowed individuals who illegally entered the United States to remain here for years.
The administration hasn’t announced plans to increase the number of immigration judges or to provide more funding and resources. It also isn’t clear yet if immigration judges and court staff are exempt from a government-wide hiring freeze that Trump signed shortly after he took office. There are 73 vacancies in immigration courts, out of 374 judgeships authorized by Congress.
“Everybody’s pretty stressed,” said Paul Schmidt, who retired as an immigration judge in June. “How are you going to throw more cases into a court with 530,000 pending cases? It isn’t going to work.”

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Zoe Tillman provides a well-reaserched and accurate description of the dire situation of justice in the U.S. Immigration Courts and the poorly conceived and uncoordinated enforcement initiatives of the Trump Administration. Sadly, lives and futures of “real life human beings” are at stake here.

Here’s a “shout out” to my good friend and former colleague Judge Rodger Harris who always does a great job of providing due process and justice on the highly stressful Televideo detained docket at the U.S. Immigration Court in Arlington, VA. Thanks for all you do for our system of justice and the cause of due process, Judge Harris.

PWS

02/24/17

Problems Mount For Administration On Travel Ban — Can’t Find Support For Their “Pre-Hatched” Conclusions — Stephen Miller Shoots Off Mouth Again — DOJ Litigators Undoubtedly Cringe As In-Court Statements Undermined!

https://www.washingtonpost.com/world/national-security/a-new-travel-ban-with-mostly-minor-technical-differences-that-probably-wont-cut-it-analysts-say/2017/02/22/8ae9d7e6-f918-11e6-bf01-d47f8cf9b643_story.html?utm_term=.e2b487b295a7

Matt Zapotsky writes in the Washington Post:

“Senior policy adviser Stephen Miller said President Trump’s revised travel ban will have “mostly minor technical differences” from the iteration frozen by the courts, and Americans would see “the same basic policy outcome for the country.”

That is not what the Justice Department has promised. And legal analysts say it might not go far enough to allay the judiciary’s concerns.

A senior White House official said Wednesday that Trump will issue a revised executive order on immigration next week, as the administration is working to make sure the implementation goes smoothly. Trump had said previously that the order would come this week. Neither the president nor his top advisers have detailed exactly what the new order will entail. Miller’s comments on Fox News, while vague, seem to suggest the changes might not be substantive. And that could hurt the administration’s bid to lift the court-imposed suspension on the ban, analysts said.

“If you’re trying to moot out litigation, which is to say, ‘Look, this litigation is no longer necessary,’ it is very bad to say our intent here is to engage in the prohibited outcome,” said Leon Fresco, who worked in the office of immigration litigation in President Barack Obama’s Justice Department.”

https://www.washingtonpost.com/blogs/right-turn/wp/2017/02/23/white-house-gives-plenty-of-ammunition-to-travel-bans-opponents/?utm_term=.9442c17ff14b

Jennifer Rubin writes in Right Turn in today’s Washington Post:

“Opponents of President Trump’s travel ban have one big advantage — the Trump White House. If not for the confusion, lack of staffing (nary a deputy, let alone an undersecretary or assistant secretary, has been named in national security-related departments), organizational disarray, policy differences or all of the above, the administration might have put together on its first try a legally enforceable executive order. It might by now even have come up with a new executive order, thanks to a road map provided by the 9th Circuit. However, the rollout has been pushed back to next week.

Understand that if this is such a matter of urgent concern, the president would have had his advisers working around the clock on this (not transgender bathroom assignments, plans to deport non-criminal illegal immigrants or haggling with Mexican officials over a wall that Trump insists they pay for). In fact, since the point of the ban is to initiate a review of our vetting procedures, you’d think that the Homeland Security Department would already have come up with its proposed “extreme vetting” recommendations.

Meanwhile, the president and his staff continue to provide legal ammunition to opponents of the ban. On Tuesday, senior adviser Stephen Miller in a Fox News interview boldly declared, “Fundamentally, you’re still going to have the same basic policy outcome for the country, but you’re going to be responsive to a lot of very technical issues that were brought up by the court.” Just to remind the courts of the administration’s arrogance, Miller proclaimed that there was nothing wrong with the first order.

“By saying that the policy effects of the new travel ban will be essentially the same as those of the travel ban that so many federal judges found constitutionally suspect, Miller is effectively inviting federal courts to suspend the new one as well, given that the religiously discriminatory history of the ban can’t be ignored, much less erased, simply by purporting to start over again,” Supreme Court litigator and professor Larry Tribe tells me. “If, as I am told, the new ban is a more artfully disguised version of [an] anti-Muslim measure, without explicit preferences for religious minorities in Muslim-majority countries (i.e., for Christians) written into the very text of the ban, then some judges might be less inclined to issue a temporary restraining order, but most federal judges would be savvy enough to recognize that they are being treated to a masquerade.”

http://www.cnn.com/2017/02/23/politics/white-house-effort-to-justify-travel-ban-causes-growing-concern-for-some-intel-officials/index.html

Meanwhile, Jake Tapper and Pamela Brown on CNN highlight more difficulties with the Administration’s “shoot first, ask questions later” approach:

“Washington (CNN)President Donald Trump has assigned the Department of Homeland Security, working with the Justice Department, to help build the legal case for its temporary travel ban on individuals from seven countries, a senior White House official tells CNN.

Other Trump administration sources tell CNN that this is an assignment that has caused concern among some administration intelligence officials, who see the White House charge as the politicization of intelligence — the notion of a conclusion in search of evidence to support it after being blocked by the courts. Still others in the intelligence community disagree with the conclusion and are finding their work disparaged by their own department.
“DHS and DOJ are working on an intelligence report that will demonstrate that the security threat for these seven countries is substantial and that these seven countries have all been exporters of terrorism into the United States,” the senior White House official told CNN. “The situation has gotten more dangerous in recent years, and more broadly, the refugee program has been a major incubator for terrorism.”

The report was requested in light of the Ninth Circuit Court of Appeals’ conclusion that the Trump administration “has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.” The seven counties are Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen.
The senior White House official said the desire to bolster the legal and public case that these seven countries pose a threat is a work in progress and as of now, it’s not clear if DHS and DOJ will offer separate reports or a joint report.
One of the ways the White House hopes to make its case is by using a more expansive definition of terrorist activity than has been used by other government agencies in the past. The senior White House official said he expects the report about the threat from individuals the seven countries to include not just those terrorist attacks that have been carried out causing loss of innocent American life, but also those that have resulted in injuries, as well as investigations into and convictions for the crimes of a host of terrorism-related actions, including attempting to join or provide support for a terrorist organization.
The White House did not offer an on-the-record comment for this story despite numerous requests.

. . . .

Asked about the report Thursday on “The Lead,” Rep. Dan Donovan, R-New York, emphasized that the intelligence community be nonpartisan.
“They should take data, take information, shouldn’t interpret it in a political way and provide the President the information he needs to make decisions to protect our country,” he said.
Also commenting on the report was Richard Haass, the president of the Council on Foreign Relations, who acknowledged that he hadn’t seen the specifics but “it looks wrong to me.”
“We ought to be doing the intel first, then set the policy and in large part based upon the intelligence,” Haass said. “If these reports are true, it’s yet another example where this administration is having real trouble ing a functional relationship with the intelligence community.”

[Emphasis supplied in all quotes]

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I was never a “line litigator.” But, I was involved in defending and prosecuting thousands of cases during the “Legacy INS Phase” of my career. I also participated in thousands more cases as an appellate and trial judge during the last 21 years at EOIR.

One of my jobs in providing litigation assistance as the Deputy General Counsel of the INS was to make sure my “institutional clients” did not comment on pending cases. Such comments both unnecessarily antagonized the judges hearing the cases and, on occasion, when folks didn’t heed my instructions, completely “tanked” our positions by giving our opponents new arguments.

As a sitting judge, I can guarantee that one of the least successful approaches was for a lawyer to insult my intelligence or integrity and then turn around and ask me to help out his or her client. Sure, in the end, I had to separate the law from the lawyer and do the right thing. But, it certainly interfered with the effectiveness of the lawyer’s communication and made it more difficult for me to get to the substance of his or her client’s case.

And, one thing that certainly infuriated all judges, including me, was for a lawyer to represent one thing in court and then have his or her client do something else. It made me lose confidence in the lawyer’s reliability and integrity and his or her ability to control and speak for the client. I can remember “chewing out” several lawyers at Master Calendar for misrepresenting facts or law to me in their briefs or oral arguments.

It appears that the Trump Administration’s combination of arrogance, ignorance, and disrespect for the court system and the role of judges is undermining both their credibility and the credibility of the Department of Justice career lawyers whose job is to represent them over and over again before most of the same judges. Once a judge loses faith in the credibility of a lawyer and/or her or his client, “bad things will happen” and they do.

PWS

02/23/17

WSJ: Trump, Kelly, Tillerson Continue On Different Pages Re Immigration Enforcement Program — Mexico Remains Skeptical!

https://www.wsj.com/articles/u-s-officials-on-tough-trip-in-mexico-trump-says-1487871849

FELICIA SCHWARTZ, JOSÉ DE CÓRDOBA and ROBBIE WHELAN write in the WSJ:

“MEXICO CITY—Top Trump administration officials tried Thursday to soften the message on expanded U.S. immigration-enforcement efforts during talks here, but Mexican officials signaled little progress had been made in bridging differences that threaten to further fray ties between the two countries.

Secretary of State Rex Tillerson and Homeland Security Secretary John Kelly faced a skeptical Mexican government as they sought to explain Washington’s decision to step up the enforcement of immigration laws, outlining policies to enlist local authorities in the U.S. to jail and deport more people and to send detainees back to Mexico—even if they aren’t Mexican.
Meanwhile in Washington, President Donald Trump made comments that seemed to sharpen the tone.

“All of a sudden for the first time we’re getting gang members out, we’re getting drug lords out, we’re getting really bad dudes out of this country at a rate that nobody’s ever seen before,” the president said during a White House event with manufacturing executives. “And it’s a military operation because they’re allowed to come into our country.”
“We’re going to have a good relationship with Mexico I hope,” Mr. Trump said. “And if we don’t, we don’t.”

In midday meetings in Mexico City, the U.S. cabinet members delivered two key assurances to their Mexican counterparts: that they wouldn’t institute “mass deportations,” and that the U.S. military wouldn’t take part in rounding up and ejecting illegal migrants.

Gabriela Cuevas, the head of the Mexican Senate’s foreign relations committee, said she was deeply troubled by the apparent discrepancy between what the U.S. envoys said in Mexico City and Mr. Trump’s actions and words.

“I see a different message coming from the White House and from the secretaries visiting here,” she said. “One doesn’t know if Secretary Tillerson and Secretary Kelly are telling the truth or not. It’s a problem of credibility. Did they come to tell lies? Or are they just not coordinating with their boss? Who do you believe?”

Later Thursday, the White House sought to walk back Mr. Trump’s use of the word “military” in reference to the immigration enforcement.

“The president was using that as an adjective. It’s happening with precision and in a manner in which it’s being done very, very clearly,” said Sean Spicer, the White House press secretary, at a news briefing. “The president was clearly describing the manner in which this was being done.”

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Lots of mixed messages here. I don’t see much chance at present that Mexico is going to agree to allow non-Mexican-citizens to wait for their U.S. immigration hearings in Mexico.

PWS

02/23/17

President Trump Might find That Mexico Has More Leverage Than He Anticipated — Beating Up On Your Friends & Neighbors To Score Political Points At Home Is Likely To Backfire!

https://www.washingtonpost.com/opinions/mexico-may-strike-back-heres-how/2017/02/22/5d1e8f56-f949-11e6-bf01-d47f8cf9b643_story.html?hpid=hp_no-name_opinion-card-d%3Ahomepage%2Fstory&utm_term=.12282059b

WashPost Editorial:

“PRESIDENT TRUMP has a good idea of the power the United States wields over Mexico, and the pain it may inflict — the construction of a wall Mexico fiercely opposes; taxes that could be slapped on Mexican imports, wreaking havoc on its economy; deportations of undocumented Mexican immigrants living in the United States, who would be thrust back into a country that would struggle to absorb them. Mr. Trump might have a fuzzier idea of the pain Mexico, its people furious and its pride wounded by his taunts and contempt, might inflict on the United States.

Start with those deportations. At least half of America’s 11 million unauthorized immigrants are Mexican, but many have no documents proving their nationality. For the Trump administration to deport them, it would need cooperation from Mexico, which cannot be forced to accept deportees without certifying that they are Mexicans. As former Mexican foreign minister Jorge G. Castañeda has already warned, Mr. Trump can round up hundreds of thousands or millions of migrants, but without Mexico’s cooperation, they could clog U.S. detention centers and immigration courts — at enormous cost and, conceivably, for years.

Consider, too, the effect on America’s southern border if Mexico were to loosen immigration controls on its own southern border — the one over which Central American refugees are already streaming north in near-record numbers. Even with what U.S. officials say are aggressive interdiction efforts by Mexican authorities, the Border Patrol detained more than 220,000 mainly Guatemalans, Hondurans and Salvadorans crossing from Mexico into the United States in the fiscal year ending last fall, exceeding the number of Mexicans apprehended, which has fallen to a 45-year low. If you think the Border Patrol is swamped now, as Homeland Security Secretary John F. Kelly insists, imagine if Mexico, which last year sent home more than 140,000 Central Americans, simply stepped aside.”

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Predictably, other countries take “sovereignty” just as seriously as we do.

PWS

02/22/17

DHS Trumpets The New Bureaucratic Doublespeak: You’re All Targets, But Don’t Worry Because We Don’t Have The Ability To Do What We Say We’ll Do — And, When We Do Deport You (Ideally, Without A Hearing & After Detaining You Just Because You’re You & We Can), We’ll Be Polite & Humane About It — We’ve Finally “Taken The Shackles” Of Restraint, Wisdom & Prudence Off Our Agents So That They Are Free To Be Nice & Reasonable — And We’re Planning To Bring On Thousands Of Minimally Trained New Agents And Local Cops To Do What We Can’t Do Now — But, Don’t Worry, It’ll All Work Out For You Back In Mexico, El Salvador, Somalia,Or Wherever You Belong

https://www.washingtonpost.com/politics/trump-administration-seeks-to-prevent-panic-over-new-immigration-enforcement-policies/2017/02/21/a2a695a8-f847-11e6-bf01-d47f8cf9b643_story.html?tid=hybrid_experimentrandom_3_na&utm_term=.20ca5c9e4384

David Nakamura Reports in the Washington Post:

“The Trump administration on Tuesday sought to allay growing fears among immigrant communities over wide-ranging new directives to ramp up enforcement against illegal immigrants, insisting the measures are not intended to produce “mass deportations.”

Federal officials cautioned that many of the changes detailed in a pair of memos from Homeland Security Secretary John F. Kelly will take time to implement because of costs and logistical challenges and that border patrol agents and immigration officers will use their expanded powers with care and discretion.

Yet the official public rollout of Kelly’s directives, first disclosed in media reports over the weekend, was met with outrage from immigrant rights advocates over concerns the new policies will result in widespread abuses as authorities attempt to fulfill President Trump’s goals of tightening border control.

Trump took a hard line against illegal immigration during his campaign, at times suggesting he would seek to create a nationwide “deportation force” to expel as many of the nation’s estimated 11 million unauthorized immigrants as possible.

In a conference call with reporters, a senior Department of Homeland Security official moved to avert what he called a “sense of panic” among immigrant communities.”

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

Summary: Duh! So, we roll out this big new program in the first 35 days of the new Administration to great fanfare. But, nobody considered the resource and funding implications with Congress. So, it’s much ado about nothing (for now). But, don’t you dare lie about all the great things we’ve already accomplished. Watch for the biased media falsely claiming that it’s all smoke and mirrors or that we’re already rounding up some of the folks we said we’d deport. We mean what we say, but we’re not actually doing what we said we’d do. What kind of fools would panic about that?

PWS

02/22/17

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