"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
Dahlia Lithwick Legal Reporter SlateHonorable James Dannenberg Retired State Judge Hawaii
Dahlia Lithwick reports for Slate:
James Dannenberg is a retired Hawaii state judge. He sat on the District Court of the 1st Circuit of the state judiciary for 27 years. Before that, he served as the deputy attorney general of Hawaii. He was also an adjunct professor at the University of Hawaii Richardson School of Law, teaching federal jurisdiction for more than a decade. He has appeared on briefs and petitions as part of the most prestigious association of attorneys in the country: the Supreme Court Bar. The lawyers admitted to practice before the high court enjoy preferred seating at arguments and access to the court library, and are deemed members of the legal elite. Above all, the bar stands as a sprawling national signifier that the work of the court, the legitimacy of the institution, and the business of justice is bolstered by tens of thousands of lawyers across the nation.
On Wednesday, Dannenberg tendered a letter of resignation from the Supreme Court Bar to Chief Justice John Roberts. He has been a member of that bar since 1972. In his letter, reprinted in full below, Dannenberg compares the current Supreme Court, with its boundless solicitude for the rights of the wealthy, the privileged, and the comfortable, to the court that ushered in the Lochner era in the early 20th century, a period of profound judicial activism that put a heavy thumb on the scale for big business, banking, and insurance interests, and ruled consistently against child labor, fair wages, and labor regulations.
The Chief Justice of the United States
One First Street, N.E.
Washington, D.C. 20543
March 11, 2020
Dear Chief Justice Roberts:
I hereby resign my membership in the Supreme Court Bar.
This was not an easy decision. I have been a member of the Supreme Court Bar since 1972, far longer than you have, and appeared before the Court, both in person and on briefs, on several occasions as Deputy and First Deputy Attorney General of Hawaii before being appointed as a Hawaii District Court judge in 1986. I have a high regard for the work of the Federal Judiciary and taught the Federal Courts course at the University of Hawaii Richardson School of Law for a decade in the 1980s and 1990s. This due regard spanned the tenures of Chief Justices Warren, Burger, and Rehnquist before your appointment and confirmation in 2005. I have not always agreed with the Court’s decisions, but until recently I have generally seen them as products of mainstream legal reasoning, whether liberal or conservative. The legal conservatism I have respected– that of, for example, Justice Lewis Powell, Alexander Bickel or Paul Bator– at a minimum enshrined the idea of stare decisis and eschewed the idea of radical change in legal doctrine for political ends.
I can no longer say that with any confidence. You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.
The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.
Without trying to write a law review article, I believe that the Court majority, under your leadership, has become little more than a result-oriented extension of the right wing of the Republican Party, as vetted by the Federalist Society. Yes, politics has always been a factor in the Court’s history, but not to today’s extent. Even routine rules of statutory construction get subverted or ignored to achieve transparently political goals. The rationales of “textualism” and “originalism” are mere fig leaves masking right wing political goals; sheer casuistry.
Your public pronouncements suggest that you seem concerned about the legitimacy of the Court in today’s polarized environment. We all should be. Yet your actions, despite a few bromides about objectivity, say otherwise.
It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America.
I predict that your legacy will ultimately be as diminished as that of Chief Justice Melville Fuller, who presided over both Plessy and Lochner. It still could become that of his revered fellow Justice John Harlan the elder, an honest conservative, but I doubt that it will. Feel free to prove me wrong.
The Supreme Court of the United States is respected when it wields authority and not mere power. As has often been said, you are infallible because you are final, but not the other way around.
I no longer have respect for you or your majority, and I have little hope for change. I can’t vote you out of office because you have life tenure, but I can withdraw whatever insignificant support my Bar membership might seem to provide.
Please remove my name from the rolls.
With deepest regret,
James Dannenberg
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So true. I’d also compare JR’s subservience to a transparently racist, White Nationalist, authoritarian agenda to White Supremacist darling Chief Justice Roger Taney, author of the Dred Scott decision. Roberts is knowingly enabling the “Dred Scottifing” of Hispanics, African Americans, Muslims, political opponents, the LGBTQ community, journalists, minority voters, and a host of others on the authoritarian regime’s “enemies” list.
At a time when America needs a Chief Justice with the courage and integrity to stand up for our Constitution, the rule of law, and the lives of the most vulnerable among us, we instead get Roberts.
J.R. Is quick to stand up for the rights of corporations, guns, and the Executive. But, when it comes to the rights of individuals — things like due process, human rights, and the right to be treated with human dignity, he’s nowhere to be found.
Only Justice Sotomayor had the guts and intellectual integrity to stand up for the future of humanity, simple human decency, and the rule of law by voting to deny the regime’s fraudulent stay request. Typically, Roberts & Co. didn’t even have the decency and intellectual honesty to provide a rationale for their life-threatening action. A reasoned decision is one of the “minimal requirements for due process” that Roberts and the Supremes’ majority ignore on a regular basis when rolling over for Trump toady Solicitor General Noel Francisco and his transparently fabricated “emergencies.” Francisco is another one whose disingenuous role and disregard for legal ethics in carrying out Trump’s wanton cruelty and human rights abuses should never be forgotten.
The damage caused by Roberts’s failure to lead and protect humanity isn’t legalistic or academic. It’s “real harm” to “real people.”
Let’s get “up close and personal” with what happens to individuals who fled to our country seeking only due process and fair and humane treatment, just to find Roberts’s and his Supremes’ immorality and warped sense of justice.
Here’s what Roberts’s complicity looks like:
The burns from the acid attack Elizabeth endured while she was kidnapped.The acid burned all the way through to the bone in Elizabeth’s left ankle. Courtesy of Elizabeth.Courtesy of Elizabeth Elizabeth’s acid burns.
That’s right folks. Torture, proudly presented to you by Chief Justice John Roberts and the majority of the United States Supreme Court. Who would have thought it could happen here? Like Judge Dannenberg, I spent a lifetime respecting the Supreme Court and even defending their decisions, including ones with which I disagreed. That has ended with the corruption, dishonesty, and inhumanity of the Roberts Court in the Age of Trump. Unworthy of America. Unworthy by of respect.
And here’s some narrative to go with it from Adolfo Flores over at BuzzFeed News:
Elizabeth left her home in Guatemala after being brutally beaten by the father of her daughter. She went to the police who refused to help her despite filing a complaint against him. The beatings in front of her daughter continued. Fearing that one day soon he’d kill her, Elizabeth left with her daughter.
“There’s a reason why there are so many femicides,” Elizabeth said.
The pair arrived near Ciudad Juárez in late July. She got off a bus she took with her daughter that was supposed to take them to Ciudad Juárez and got into what she believed was an Uber. She asked the driver to take her to the bridge that connects the city to El Paso. But as the city lights started to fade and the streets turned to desert and cliffs, Elizabeth realized the driver was taking her away from the city.
For about 12 days she was kept inside a dirty home, occasionally fed old food, and assaulted. Different men touched her genital area and licked her breasts in front of her daughter, according to documents provided by her attorneys. She wasn’t raped, but later had brownish discharge from her vagina she believes was the result of the men hurting her with an object or fingers.
Her attorneys said they believe the men were in the cartel, but don’t know for sure. They threatened to rape her and her daughter if she didn’t provide them with a number to call family for ransom. After days of holding her for ransom that her family couldn’t pay, the men threw chemical acid on her legs that resulted in second-degree burns. Despite closing her eyes and covering her ears, her then-10-year-old daughter could hear her mother’s screams, later telling Elizabeth she would never forget the sound of them.
At one point their kidnappers went outside and her daughter realized they left the door open. Elizabeth was too weak and in too much pain from the acid burns, but her daughter persisted.
“‘I don’t want them to kill us, torture us, or do something worse,'” Elizabeth recalled her daughter saying. “‘I can’t take this anymore, I feel like I’m going to die from sadness.'”
The pair ran from the house and were eventually chased by their kidnappers, armed with large black weapons, Elizabeth said. She fainted from the pain and heat, so her daughter ran ahead and flagged down police officers who called for help. A helicopter arrived shortly after to pick up Elizabeth.
Elizabeth woke up in a hospital and was discharged after seven days despite her left ankle still bleeding and with the bone exposed. Elizabeth said the hospital was overcrowded and didn’t have enough space, but believes she was discharged quickly because she was an immigrant and not a priority for the hospital’s staff.
She was taken to a shelter that was later closed due to bad conditions. At a second shelter, the director and staff helped cure her ankle — which smelled and cause her to fear she would get gangrene — with medication and topical creams because Elizabeth was too scared to venture outside.
In November, Elizabeth had recovered enough to walk, so she went with her daughter to the Arizona border and presented herself to CBP officers to request asylum. She told them about her attack and was taken to a hospital in Tucson to be medically screened. The doctor prescribed her medication to avoid infection. Then CBP sent her back to Ciudad Juárez.
On Jan. 31, Palazzo and other attorneys walked with her to a border crossing and asked that she be allowed to fight her case in the US. She was interviewed on the phone by the asylum officer who later said she failed.
While Elizabeth was in Ciudad Juárez, the shelter operators asked her if she could watch the door while they ran an errand. A shootout occurred shortly after between criminals and police near the shelter. Men who were running from the police ran up to the shelter’s doors and told Elizabeth to let them in. She faced them and refused, but they threatened to come back for revenge before running off.
Last week, a day before Elizabeth was due at a court hearing in El Paso, she was in the streets of Ciudad Juárez when one of her kidnappers approached her and recognized her. Filled with dread, Elizabeth and her daughter quickly made their way to the shelter to hide. Her fear then was that the men would come looking for her there.
The next day, on Friday, she went to her immigration court hearing in El Paso. She joined other immigrants in MPP who present themselves at the border in the predawn hours of the day to be transported to immigration court. Her plan was to ask for another non-refoulement interview, but that same morning, a federal appeals court blocked the Trump administration policy.
For the entire day, attorneys, immigrants, and advocates tried to understand what the 9th Circuit Court of Appeals’ order affirming a 2019 preliminary injunction meant for people stuck in Mexico, but also what would happen to those who had court hearings in the US that day, like Elizabeth. Sending them back would surely violate the judges’ order, some immigration attorneys said.
By Friday night, the 9th Circuit stayed its initial order blocking the Trump administration from enforcing MPP and the policy was allowed to continue. Still, Elizabeth and her daughter remained in CBP custody, and attorneys weren’t sure authorities were going to release her into the US.
She was interviewed three times about her fears of being sent back to Mexico. Her daughter told a US asylum officer about the nightmares she has, how she can’t sleep, and that she had trouble eating. Eventually, Elizabeth was told she passed her interview, was released Monday with an ankle monitor, and sent to reunite with family in Kansas.
Elizabeth was worried about the costs of continuing to receive medical care in the US for her acid burns, but she is determined to start a new chapter in her life.
“I’ve suffered a lot,” she said, “but for the first time in a long time, I feel safe.”
UPDATE
March 7, 2020, at 12:54 a.m.
This post was updated to include the more than 1,000 public reports of rape, torture, kidnapping, and other violence against immigrants sent back to Mexico.
There are lots of Elizabeths out there who have been silenced, some forever, by the likes of Roberts and other “unjust judges.” But, eventually, their stories will be told in all their grim and horrifying detail. At that point, folks like Roberts, Thomas, Alito, Kavanaugh, Gorsuch, and their enablers will attempt to “rewrite history,” to eschew moral and legal responsibility and shift the blame elsewhere with the “usual BS” like “just following the law,” “calling balls and strikes,” “just following orders.” Those are largely the same pathetic excuses offered by those who advanced the cause of human slavery, created Jim Crow, enabled genocide against Native Americans, and helped Hitler.
One of the most important tasks of the younger generation of the New Due Process Army is to bear witness and insure that J.R. & Co. don’t “get away with murder,” literally. Their job is to insure that the stories of those wronged by enablers of the Trump regime are heard loudly and clearly; to confront the complicit with the judgements of history; to insure that the descendantsof those who “stood small” and failed humanity know who their ancestors “really were” when the chips were down; and to make sure that history never again repeats itself in the form of John Roberts or anyone like him being allowed to hold positions of great trust and public responsibility in our judiciary.
Take a good like at the pictures above of Elizabeth’s legs and ankles. Those aren’t the results of somebody legitimately “just calling balls and strikes.” Roberts has “struck out.” Unfortunately, however, the rules allow him to continue to play the game to the detriment of our nation and human decency and the continued torment of those to whom he has willfully and inexcusably denied justice.
Due Process Forever; The Complicity of John Roberts, Never!
Mar. 11, 2020 letter from Sen. Elizabeth Warren and Sen. Edward Markey to EOIR Director McHenry:
“…We therefore urge EOIR to require the posting of the CDC signage, in English and Spanish, as well as any other relevant languages, in courtrooms and waiting areas to raise awareness of COVID-19 and how to avoid transmitting and contracting it. In addition, we request answers to the following questions by March 18, 2020:
Why were immigration judges and immigration court administrators instructed to remove the CDC COVID-19 posters? What “authority” did they purportedly lack to place the posters?
Who told Acting Chief Immigration Judge Christopher Santoro to issue the directive? Who in “leadership” was Judge Santoro referring to in his email regarding the posters?
Did EOIR consult with qualified public health authorities before issuing its directive to remove the posters?
Why was the directive reversed? Did negative publicity play any role in the decision?
What steps is EOIR taking to protect immigration judges, support staff, immigrants, attorneys, and the public from the spread ofCOVID-19? A. Are sick employees and members of the public being told to go home? B. Are cleaning and disinfectant supplies being provided to all employees and to members of the public who come to the courts?
How is EOIR coordinating with the rest of the Department of Justice about how to respond to COVID-19? Is it receiving guidance from any other federal agencies, such as CDC?
In light of the public health concerns posed by COVID-19, will EOIR instruct immigration judges to allow immigrant respondents the opportunity to reschedule immigration court proceedings as necessary?”
“… we call on you to suspend all non-detained master calendar dockets for the duration of this public health crisis. Immigration Judges can use cancelled master calendar time to hear individual cases (including addressing the backlog of hundreds of thousands of long-pending cases scheduled for individual hearing) that do not involve unwarranted exposure to large numbers of people in our space-limited facilities. …”
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Thanks, Dan.
As the situation deteriorates, America’s mismanaged “Clown Courts” 🤡🤡 continue to endanger the public while denying due process and wasting taxpayer money by having no contingency plans in place and failing to issue clear guidance to either their own employees or the public.
But, let the record show that they have plenty of time to develop unneeded and counterproductive “Immigration Judge dashboards,” tie up the system with frivolous litigation to “decertify” the NAIJ, and set up “TV pilot programs” to railroad kids through the Atlanta Immigration Court. All enforcement-related “gimmicks;” no time for due process or the public interest.
But, the record should also document the dereliction of duty by Congress and the Article IIIs for allowing this “clown show” to continue to inflict damage on the American public and our legal system.
I Speak To Professor Gabriela Leon-Perez’s Class @ VCU, Professor Perez on my left, Richmond Attorney Pablo Fantl on my right Feb. 20, 2020
From VCU News:
Immigration course provides VCU students with a better understanding of a national issue
The sociology course, taught by Gabriela León-Pérez, examines the history of immigration and how the current debate ties to the past.
Gabriela León-Pérez’s class, Immigration and American Society, provides students with a more nuanced understanding of the current immigration debate. (Getty Images)
Immigration has always been a controversial topic in the United States. In the late 19th century, over 2 million Irish immigrated to the U.S. Most were Catholic and that created conflict with the largely Protestant U.S. population. The first comprehensive immigration law, the U.S. Immigration Act of 1882, contained provisions specifically designed to discourage European immigrants.
“This is not the first time the country has had anti-immigration policies, but the scapegoat group has changed over time,” said Gabriela León-Pérez, Ph.D., an assistant professor of sociology at Virginia Commonwealth University who studies immigration policy.
León-Pérez wanted to give her students an understanding of the current immigration debate so she developed a course called Immigration and American Society, which covers the history of immigration and immigration policy and examines where the current debate fits into the past.
“It presents students with a context on the state of immigration today,” León-Pérez said. “A lot of people have opinions about immigration but most of them are not based on facts.”
A class to cut through the noise
When designing the course, León-Pérez wanted to be able to address current events in the news. The course uses some textbooks, but it also incorporates podcasts and blogs. The goal is to have the discussion revolve around the current state of the immigration debate.
“It definitely evolves based on current events,” León-Pérez said. “The first time I taught it was 2018, and there have been a lot of changes since then.”
John Lees, a psychology major, believes the class has given him a better understanding of immigration history. The class specifically looks at the immigration policies of presidents Barack Obama and Donald Trump. Lees believes he now has a well-rounded perspective on the subject.
Yessica Flores, who is majoring in psychology and sociology, signed up for the class because she hears a lot of information about the subject and knew a class would help her cut through the noise.
“We are living in a world where the media is everywhere; where false news is frequent news,” Flores said. “I enrolled in the course with hopes of becoming educated in this area to help educate, inform and encourage others to better understand the reality of immigration within American society.”
As part of the class, León-Pérez teaches students how to find accurate information about immigration. The students learn to access official government data and other reliable sources. (Kevin Morley, University Marketing)
At the start of the class, León-Pérez teaches students how to find accurate information about immigration. The students learn to access official government data and other reliable sources.
“I try to present both sides of the debate,” León-Pérez said. “I want the students to have a well-rounded understanding of immigration and the debate. I don’t want them to shut down a side of the debate.”
Many students, she has observed, only understand the immigration debate from a particular vantage point. The class is a “light bulb” moment for them, and they realize that immigration is a complicated and nuanced topic. In general, immigration often comes down to economics, León-Pérez said. People against immigration are worried that new residents will take jobs, but people who support immigration say immigrants will do the type of work that many residents will not. Immigrants are looking for opportunity.
“Immigrants tend to complement American workers,” León-Pérez said. “Immigrants tend to work at lower-skilled jobs.”
Protecting due process
León-Pérez brings in guest speakers to enhance the curriculum. In February, she invited retired immigration judge Paul Schmidt. In previous semesters, León-Pérez has invited an immigration attorney as a guest speaker. This time, she wanted students to get the perspective of the person on the other side of the bench.
Schmidt served as an immigration judge from 2003 until he retired in 2016. Before that, he served on the U.S. Board of Immigration Appeals. Since retiring, he has been talking about the state of the immigration courts and the lack of due process given to asylum seekers.
“The immigration courts are going through an existential crisis,” Schmidt told the class.
He understands that people have different opinions about immigration, but the courts must follow a process that protects the due process rights of asylum seekers, he said. The court functions as a division of the Department of Justice and Schmidt believes it is not given the resources to function properly. Everyone within the justice system should share a common interest in seeing the courts functioning in a fair and equitable way, Schmidt said.
Retired immigration judge Paul Schmidt speaks to León-Pérez’s class. (Kevin Morley, University Marketing)
“The immigration court now is structured in such a way that it is nothing more than a whistle stop on the road to deportation,” he said.
Schmidt offered several suggestions to the students on ways to help people who are going through the immigration courts. Immigrants, unlike citizens, are not required to have an attorney. Many do not understand the immigration process. Schmidt said students could volunteer and help them navigate the complex immigration system in the United States.
“You can join the new due process army,” Schmidt said.
Flores said she has found the class to be informative, and has enjoyed the guest lecturers. The class has not necessarily changed her views about the subject but has motivated her to become more involved.
“I have always disliked the way the immigration cases have been handled, especially the ones involving immigrant children,” Flores said. “I must say that my feelings toward being more involved in promoting change and awareness have changed in the sense that I have developed a much greater interest in getting more involved in the form of a future career.”
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And, here’s some information about one of America’s most talented and innovative professors, Dr. Gabriela Leon-Perez, who brings her rich background and scholarly research combined with innovative “student-centered, real life” teaching methods to perhaps the most important and “undertaught” subject in undergraduate, secondary, elementary, and even adult education today! Her teaching incorporates fairness, scholarship, timeliness, teamwork, respect, and lots of self-direction by the students themselves.
Gabriela Leon-Perez Assistant Professor of Sociology Virginia Commonwealth University
2012 M.A. in Sociology, Texas A&M International University
Teaching Areas
Research Methods, Immigration, Health Disparities
Research Interests
International Migration, Internal Migration, Mexico-US Migration, Immigrant Health, Health Disparities
Biography
Gabriela León-Pérez is an Assistant Professor in the Department of Sociology at Virginia Commonwealth University. Her research focuses on Mexican internal and international migration, the experiences of immigrants in the United States, and health disparities.
The underlying goal of her research agenda is to clarify the role of social, structural, and contextual factors in creating health and social inequalities, as well as to identify resources that improve the outcomes of immigrants and other marginalized populations. In her most recent project, she investigated the health trajectories of return US migrants, internal migrants, and indigenous migrants from Mexico. Other on-going projects focus on Mexican skilled migration to the US and the effects of stress, legal status, and state immigrant policies on the health and well-being of immigrants. You can read more about her current work on her personal website.
Donato, Katharine M., Gabriela León-Pérez, Kenneth A. Wallston, and Sunil Kripalani. 2018. “Something Old, Something New: When Gender Matters in the Relationship Between Social Support and Health.” Journal of Health and Social Behavior 59(3):352-370.
Young, Maria-Elena, Gabriela León-Pérez, Christine R. Wells, and Steven P. Wallace. 2018. “More Inclusive States, Less Poverty Among Immigrants? An Examination of Poverty, Citizenship Stratification, and State Immigrant Policies.” Population Research and Policy Review 37(2):205-228.
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I’ll lay it on the line. If more Americans, and particularly more potential younger voters, had understood the true role of immigration and refugees in building America’s past and propelling us into an even greater future, and the dangers to them, their classmates, communities, friends, families, and colleagues posed by Trump’s race baiting “Build That Wall” and “Lock Her Up” chants – certainly pages out of the Third Reich and Jim Crow “playbooks,” – then the modest number of additional votes might well have been there to save lives (perhaps those of loved ones) and to preserve our democratic instiutions and justice system from the vicious and corrupt attacks being waged by the Trump regime, its allies, and its enablers.
We could be working together to build a better future for everyone in America, rather than engaged in a desperate struggle to save our nation and our world from authoritarianism, ignorance, wanton cruelty, and environmental and societal degradation. And, unfortunately, the “enablers” include those who don’t agree with Trump but failed to cast a vote for Clinton in the last election. Simple as that. Every vote counts. Elections have consequence. And, defeating Trump and his GOP in November could be our last clear chance to preserve America as a democratic republic!
Following the class, I did a Spanish language radio show with my good friend Pablo Fantl, Esquire, of Richmond, who was kind enough to translate for me.
Jessica Schulberg Politics & Extremist Groups Reporter HuffPost
Jessica Schulberg reports for HuffPost:
During his first address to the nation on the global coronavirus pandemic, President Donald Trump characterized COVID-19 as a “foreign virus” while touting his decision to institute travel restrictions with China and announcing plans to close the U.S. to visitors from most of Europe.
Meanwhile, he has been raked by critics — and the markets — for failing to thoroughly explain how the government plans to address the lack of tests and spiking number of cases across the U.S. His administration has for weeks downplayed the threat of the virus, even as experts warned it is on track to spread exponentially.
Trump clearly sees the novel coronavirus as just another foreign invader to keep out — a viewpoint reflected both in his policy proposals and the way he and his administration talk about the virus. This approach is in line with his overarching political strategy of exploiting Americans’ fears to justify racist, nativist policies.
“This is the most aggressive and comprehensive effort to confront a foreign virus in modern history,” Trump said Wednesday about his administration’s response while blaming the European Union for failing to take steps to prevent contagion. Several European countries have fewer cases of coronavirus per capita than the U.S.
It’s not just Trump. Health and Human Services Secretary Alex Azar repeatedly referred to the disease as the “China coronavirus” during a briefing last month. Anti-immigration zealot Rep. Paul Gosar (R-Ariz.) — who is in self-quarantineafter being exposed to coronavirus at the Conservative Political Action Conference in Maryland — has gone out of his way to describe the virus as the “Wuhan virus,” a reference to the location of the first outbreak.
When Gosar’s critics argued that the congressman shouldn’t spread racist stereotypes, Rich Lowry, the editor of the right-wing National Review, wrote an entire column insisting the illness be called the “Wuhan virus.” “China deserves to be connected to the virus that it loosed on the world,” he argued.
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For those who don’t know the history, the “Reichstag Fire” in 1933 was a pivotal step in the Nazi’s rise to power in Germany. At the time, Hitler blamed Communists. The actual cause of the fire has since been debated by historians: some say the Nazis started it themselves, while others say that it was an accident, or the act of a single arsonist.
Regardless of cause, all agree on the result. Hitler used it as a pretext to eradicate the constitution, punish the opposition, and place draconian authoritarian measures in place using the fiction of “national security.” This eventually led to the Holocaust and a World War that killed approximately 75 million.
Fact is that the coronavirus isn’t “foreign.” Viruses don’t possess or recognize nationality. Nor was it spread in the U.S. primarily by “foreigners.” Most cases initially reached the U.S. through U.S. citizens who took cruises or traveled abroad after the start of the virus abroad had been publicized.
Mexico, a frequent target of the Trump regime’s racism, has reported fewer than ten confirmed cases of coronavirus, as opposed to over 1,000 in the U.S. The Northern Triangle of Central America also appears to have avoided major outbreaks to date. On the other hand, the illegal and inhumane anti-asylum policies of the regime, as enabled by the Supremes and complicit Article III Courts, appear to present a realistic danger of spreading the virus to all of those countries which are ill-equipped to handle it.
The market as well as all medical experts recognized and reacted negatively to the idiocy of Trump’s Oval Office speech. The U.S. preparation, public education, and actual response to coronavirus has been one of the poorest and most inept in the world to date. To the extent that the U.S. has mitigated the disease, it has been largely the result of decisive actions by State Governors and local officials of both parties, although primarily Democrats, along with universities and sports leagues.
Expect Trump and his White Nationalists to use the danger to our public health that he didn’t cause, yet unnecessarily aggravated, as an excuse for more irrational, cruel, xenophobic, racist attacks on migrants. And, you can expect the “Chief of Complicity,” John Roberts, and his accomplices to continue to help promote Trump’s attack on human decency, truth, and our democratic institutions. John Roberts has never seen a transparently false “emergency” from Trump that he didn’t love or racism or religious bigotry so obvious that he would actually call it what it is.
Incompetent governance by a corrupt, selfish kakistocracy that promotes myths and conspiracy theories over truth, scientific knowledge, and the common good does not cause epidemics. But, it does unnecessarily aggravate them, hinder effective control, and gravely endanger the public health. It simple terms, it kills! Yet another reason why “regime change” in November might be America’s last chance for survival.
The coronavirus has surfaced perhaps the only competent high level official in the entire Trump Administration — Dr. Anthony Fauci. In case you haven’t noticed, there is no resemblance whatsoever between the scientific truth spoken by Dr. Fauci, who paints a honest but grim picture of the Administration’s half-assed efforts to date, and the unadulterated BS and party line spouted by Trump and the second most unqualified individual in the U.S. to handle a pandemic Mike “Super Sycophant” Pence. Talk about a “Confederacy of Dunces!” I’m just surprised that Trump hasn’t fired Fauci yet, given the well-known Trumpian aversion to all things true.
I’ve watched the smirking nitwit Rich Lowry of the National Review (too) many times on the “talking heads” where he is a favorite because he is one of the few Trump apologists who can put two consecutive sentences together in the English Language. Most of what he says is BS, but at least it’s comprehensible and reasonably articulate BS. And, despite the endless smirk, he isn’t as overtly rude and aggressively crude as most Trumpists. Jessica’s article confirmed my already low opinion of Rich. As Rome burns, by all means, let’s pontificate on what we should call the fire.
Kevin Euceda, a 17-year-old Honduran boy, arrived at the U.S.-Mexico border three years ago and was turned over to the custody of the Department of Health and Human Services until his request for asylum could be decided by immigration courts. During that period, he was required, as are all unaccompanied minors in custody, to meet with therapists to help him process what he had gone through.
In those sessions, Kevin was encouraged to speak freely and openly and was told that what he said would be kept confidential. So he poured out his story of a brutalized childhood, of how MS-13 gang members moved into the family shack after his grandmother died when he was 12, of how he was forced to run errands, sell drugs and, as he got older, take part in beating people up. When he was ordered to kill a stranger to cement his position in the gang, Kevin decided to run.
His therapists submitted pages of notes over several sessions to the file on him, as they were expected to do. But then, HHS officials — without the knowledge of the teen or the therapists — shared the notes with lawyers for Immigration and Customs Enforcement, who used them in immigration court to paint the young migrant as a dangerous gang member who should be denied asylum and sent back to Honduras. In sharing those therapy notes, the government did not break any laws. But it most assuredly broke its promise of confidentiality to Kevin, violated standard professional practices — the first therapist involved quit once she learned her notes had been shared — and offended a fundamental expectation that people cannot be compelled to testify against themselves in this country.
Kevin, whose story was detailed by the Washington Post, wasn’t the only unaccompanied minor to fall victim to such atrocious behavior, though how many have been affected is unknown. The government says it has changed that policy and no longer shares confidential therapy notes, but that’s not particularly reassuring coming from this administration. It adopted the policy once; it could easily do so again.
Last week, Rep. Grace F. Napolitano (D-Norwalk) and Sen. Jeff Merkley (D-Ore.) introduced the Immigrants’ Mental Health Act of 2020 to ban the practice, which is a necessary preventive measure. The bill would also create a new training regimen to help border agents address mental health issues among migrants and require at least one mental health expert at each Customs and Border Patrol facility. Both of those steps are worth considering too.
That the government would so callously use statements elicited from unaccompanied minors in therapy sessions to undercut their asylum applications is part of the Trump administration’s broad and inhumane efforts to effectively shut off the U.S. as a destination for people seeking to exercise their right to ask for sanctuary. Jeff Sessions and his successor as attorney general, William Barr, have injected themselves into cases at an unprecedented rate to unilaterally change long-established practices and immigration court precedent.
They have been able to do so because immigration courts are administrative and part of the Justice Department, not the federal court system, and as a result they have politicized what should be independent judicial evaluations of asylum applications and other immigration cases. Advocates argue persuasively that the efforts have undermined due process rights and made the immigration courts more a tool of President Trump’s anti-immigration policies than a system for measuring migrant’s claims against the standards Congress wrote into federal law.
Of course, trampling legal rights and concepts of basic human decency have been a hallmark of the administration’s approach to immigration enforcement — witness, for example, its separation of more than 2,500 migrant children from their parents. Beyond the heartlessness of the separations, the Health and Human Services’ inspector general last week blasted the department for botching the process. Meanwhile, the administration has expanded detention — about 50,000 migrants are in federal custody on any given day, up from about 30,000 a decade ago — and forced about 60,000 asylum seekers to await processing in dangerous squalor on Mexico’s side of the border.
There are legitimate policy discussions to be had over how this government should handle immigration, asylum requests and broad comprehensive immigration reform. In the meantime, no government has the right to treat people with such abject inhumanity. History will remember Trump for this, but it will also remember the people who enable such atrocious acts.
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The LA Times is ”on top” of the grotesque perversion of the Immigration “Courts” under nativist zealot Jeff “Gonzo Apocalypto” Sessions and Trump toady Billy Barr to carry out a White Nationalist political agenda:
They have been able to do so because immigration courts are administrative and part of the Justice Department, not the federal court system, and as a result they have politicized what should be independent judicial evaluations of asylum applications and other immigration cases.
Who’a NOT “on top” of what’s happening: The GOP-controlled U.S. Senate, Chief Justice Roberts, a number of his Supremely Complicit colleagues, and a host of Court of Appeals Judges who allow this unconstitutional travesty to continue to mock the Fifth Amendment and the rule of Law, while abusing and threatening the lives of legal asylum seekers every day!
With 2.5 Branches of our Government led by anti-democracy zealots and cowards, House Speaker Nancy Pelosi is our only remaining bulwark against tyranny! Capable as she is, she can’t do it all by herself!
In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.
— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)
How soon we forget!
Due Process Forever; Complicit Courts & Other Immoral Enablers, Never!
Lynn S. Adelman, a U.S. district judge in Milwaukee, has riled conservatives by publishing a blistering critique of the Supreme Court’s record under Chief Justice John G. Roberts Jr., focusing on a string of decisions that he argues have fostered “economic inequality,” “undermined democracy” and “increased the political power of corporations and wealthy individuals” at the expense of ordinary Americans.
Adelman also criticized President Trump, who he wrote ran as a populist but failed to deliver “policies beneficial to the general public. … While Trump’s temperament is that of an autocrat,” Adelman wrote, “he is disinclined to buck the wealthy individuals and corporations who control his party.”
The article by Adelman was all the more unusual because it went after the chief justice directly. Roberts, he said, was “misleading” in his 2005 confirmation hearing testimony when he pledged to be a passive “umpire” calling balls and strikes.
Adelman called that metaphor a “masterpiece of disingenuousness,” saying the court under Roberts “has been anything but passive” as its “hard right majority” has actively participated in “undermining American democracy.”
As president, Donald Trump has repeatedly accused federal judges of being political and beholden to the presidents who appointed them. (JM Rieger/The Washington Post)
The article, entitled “The Roberts Court’s Assault on Democracy,” is scheduled for publication in an unspecified forthcoming issue of the Harvard Law & Policy Review, which describes itself as the official publication of the liberal American Constitution Society. It was published in full at SSRN this month.
Adelman, appointed to the bench by President Bill Clinton in 1997, is a former Democratic state senator in Wisconsin and Legal Aid Society trial lawyer. Perhaps his best-known decision nationally was a 2014 ruling striking down Wisconsin’s voter ID law.
His broad critique of the Roberts court, with particular reference to its decisions on voting rights and campaign finance by corporate interests, is not an uncommon one — coming, that is, from liberal scholars or political leaders, including former president Barack Obama.
But coming from a sitting federal judge in a journal article accompanied by such a blunt attack on Roberts, not to mention Trump, it has attracted uncommon attention.
. . . .
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Read the complete article at the link.
So I’m not the only one to note the Chiefie’s “Taneyesque” performance, particularly on issues involving the rights of migrants, refugees, Muslims, and other persons of color. He has joined the regime in “Dred Scottifying” those with brown skins who are entitled to the protection of our Constitution and our laws, which Trump has eliminated without legislation, relying largely on transparently fraudulent “national security rationales.”
But, Roberts hasn’t been much good for African Americans or other minorities either, joining his right winger activist colleagues in disingenuously dismantling key parts of civil rights and voting rights protections and turning an intentionally blind eye to partisan gerrymandering carried out by the GOP to disenfranchise minorities. Election results get skewed and folks actually die as a result of these intentional miscarriages of justice to further a toxic right wing agenda aimed at destroying America’s democratic institutions, promoting inequality, and institutionalizing privilege. As Judge Adelman said “the transformation of the Supreme Court from what he described as a defender of ordinary people and ‘subordinated groups’ to an enabler of an ‘anti-democratic’ Republican agenda.” Right on, Judge A!
I also found this comment telling:
Adelman was unapologetic. “I think it’s totally appropriate to criticize the court when there’s a basis for it,” he said. “Judges are encouraged to comment on the law because we have a particular interest, knowledge and familiarity.”
Compare that with the “muzzling” of the Immigration Judiciary by the Executive reported recently on Courtside. https://immigrationcourtside.com/2020/03/03/🤡🤡clown-court-report-as-due-process-goes-into-death-spiral-regime-muzzles-immigration-judges/
And, as I constantly point out, the Immigration Courts aren’t “courts” at all. They are blatantly unconstitutional “star chambers” run by the Executive Branch with the complicity of the Article III Judiciary who see their work daily and know full well that they are often “rubber stamping” final orders sending folks into potentially life-threatening exile with only a transparently thin veneer of “due process.” But, according to Roberts and his gang, brown-skinned refugees aren’t entitled to even access this process in a reasonable manner, let alone receive the fair hearings to which they are entitled before being “orbited” to potential death in foreign lands. What if it were his wife and kids? I’ll bet their lives would get more consideration.
I also appreciate Judge Adelman’s “spotlighting” the disingenuous testimony of Roberts and other right wingers under oath before the Senate when they “feigned impartiality” to disguise their anti-democracy agenda (without, of course, losing the support of the rightest Republicans who were “licking their chops” at finally getting their long-awaited “judicial wrecking crew” in place).
As one of my esteemed Round Table colleagues said recently:“In the words of Balzac, ‘to distrust the judiciary marks the beginning of the end of society.’”
Unhappily, thanks to Roberts and other complicit Article IIIs, we’re there. Which is exactly how Trump and his supporters want it!
In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet, the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis ability to carry out their agenda.
— United States Holocaust Museum, Law, Justice, and the Holocaust, at 8 (July 2018)
How soon we forget!
So much for the bogus ”passive “umpire” calling balls and strikes.”
(CNN)The union representing immigration judges urged the Trump administration in a letter Monday to “immediately” implement steps to protect judges and their staff and provide guidance on how to proceed amid the coronavirus outbreak, which also has the potential to exacerbate the overwhelming backlog of pending cases.
The letter calls for the Executive Office for Immigration Review, an agency within the Justice Department that oversees the nation’s immigration courts, to inform employees about the plan “as it relates to a potential pandemic,” noting that some immigration court functions “may not lend themselves to telework.”
“As you know, our work requires us to be in close contact with the public on a daily basis, often in very large numbers and groups,” wrote Judge Ashley Tabaddor, president of the National Association of Immigration Judges.
She continued: “Beyond our own employees, the respondents who come before us may also be at high risk for developing serious illness. Because we order their appearance and they face the prospect of removal if they don’t appear, sick respondents and respondents vulnerable to serious illness will keep coming to court unless we take action.”
As concerns over the coronavirus ramp up, some government agencies, businesses and organizations have taken steps to try and prevent the spread of the disease by preparing for employees to telework, limiting travel and canceling gatherings.
In Monday’s letter, the union asked the Trump administration to consider measures such as waiving the appearance of some respondents, allowing for telephonic appearances and limiting in-court paper filings. The union is also recommending in an email to the workforce that judges keep bottles of hand sanitizer in the courtroom, use disinfecting wipes to clean surfaces and limit court attendance.
Any change in daily operations is critical in immigration court, which faces a pile-up of pending cases. Immigrants fighting deportation generally have a chance to make their case in court, where they can ask a judge to allow them to stay in the US by arguing they qualify for asylum or another legal option.
Last year’s US government shutdown, which resulted in some cases being postponed, exacerbated the long-standing issue and added to the backlog. There are more than 1 million pending cases before the immigration courts, according to Syracuse University’s Transactional Records Access Clearinghouse or TRAC, which tracks immigration court data — resulting in cases being scheduled out years in advance.
TRAC estimated last year that between 80,000 and 94,000 immigration court hearings may have been canceled as a result of last year’s government shutdown. The only cases that moved forward during that time were those of immigrants in detention.
The concerns held among immigration lawyers Monday are reminiscent of the government shutdown.
Immigration attorneys are worried about the effect on the backlog of cases if judges, attorneys, and other stakeholders are out because of the illness.
“If this thing gets out of control, it’s always a problem when cases are canceled, given the backlog,” Lawrence K. Le Roy, an immigration lawyer based in Newark, said in reference to coronavirus.
John Leschak, an immigration attorney, had a hearing scheduled Monday at the Newark immigration court for a client seeking asylum in the United States. The judge was not in court and the hearing was postponed. It’s unclear whether the reason behind the judge’s absence was related to coronavirus.
“It’s unfortunate because it’s a case that’s been pending for a long time,” Leschak said. “We’re between a rock and a hard place.”
The coronavirus is also already impacting the operations of some federal courts across the US.
For example, a district court in Washington state and the 9th Circuit Court of Appeals, which hears cases from nine western states including Washington, altered some of the procedures as the virus continues to spread. Washington has seen at least 80 cases.
Unlike other courts, however, immigration courts fall under the executive branch, not the judicial branch.
Ariane de Vogue and Kevin Bohn contributed to this story.
Laura A. Lynch, Esq.
Senior Policy Counsel
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Thanks Laura, my friend, for keeping us up to date. And, as always, thanks to Priscilla for her great reporting on the never-ending mess and continuing outages at EOIR.
When it comes to public service and professional court administration from “Headquarters,” “today’s EOIR is the pits.” And, that’s not a knock on Chief Judge Chris Santoro who is generally known as a “straight shooter” and a “problem solver.” I think that I’ve acknowledged before that he was always kind and supportive to me and helped me through some very difficult times in my career at Arlington. I’ll always be appreciative for that.
“Reading between the lines,” he was ordered by one of his “superior bozos” in EOIR’s ludicrous “chain of command” to issue the inane order and then to rescind it when everything “hit the fan.” Typical EOIR “march ‘em up the hill, then march ‘em down again nonsense,” that actually has an adverse effect on both internal morale and the public.
On the other hand, perhaps it’s time for those who know how screwed up and “maliciously mismanaged” this system is to “come out and join the resistance,” as others in our Round Table have done, some at considerable personal sacrifice (not me, of course — I was fortunate enough to be able and ready to retire from EOIR even before the current regime took over.) I have no doubt that someone with Chief Judge Santoro’s ample and diverse skill set could find employment in the private sector.
But, this “circus-like” incident raises deeper issues.
In what kind of “court system” are “judges” not allowed to post public notices issued by the CDC without saying “Captain May I?” The DOJ falsely claims that its “judges” are “policy officials.” Whoever heard of a “policy official” who couldn’t hang up a Government public health poster? This whole thing is an unbelievable farce! Why does it take a directive from “Headquarters” to rectify what should be a no brainer in any functioning court system?
And, what kind of “court system” (outside the military) reports to “headquarters.” You think that the U.S. District Courts in Washington called up John Roberts to see if it was OK to cancel trials because of a public health threat? I doubt it.
Why wasn’t NAIJ President Judge Ashley Tabaddor involved in the Coronavirus planning. She speaks for those “on the line” in contact with the public. Certainly, few issues could have a greater effect on “working conditions” than steps to prevent the spread of infectious disease. Why is the NAIJ forced to waste time complaining and going to such lengths when competent management would have involved them in advance planning months ago?
Imagine how much better this system would operate if it were run by real judges who hired professional court administrators to work for the public good, instead of maliciously incompetent clowns carrying out Stephen Miller’s fascist agenda?
As you know, I blame the Article IIIs and Congress for letting this deadly mockery of our Constitution and American Justice continue to operate — essentially to dehumanize, abuse, and sometimes kill. I trust the younger members of the NDPA, folks like Laura and her colleagues, and the next generations to see that the life-tenured judges and legislators who looked the other way and knowingly acted as enablers as human dignity, our Constitution, and the rule of law were trampled upon by a White Nationalist regime are held fully accountable in the “court of history.”
The “J.R. Five’s” toxically improper action in Wolf v. Cook County, skirting the rules to enable the regime’s illegal, racially motivated rewriting of the “public charge” rules to go into effect has been exposed for the outrageous politically biased action it is. It allows the regime to intentionally spread panic in ethnic communities, particularly targeting Hispanics, citizens, immigrants, and the undocumented, and to intimidate those who should be seeking health care advice from doing so. Nice public health policy. As if Coronavirus and other diseases know the difference between “documented” and “undocumented” humans. It’s likely that Roberts and his tone deaf cronies will have even more “blood on their hands” before this is over.
As I said on Courtside recently, in the future, we also need more courageous, scholarly, humane, and ethical Article III Judges — folks who will read the Constitution and stand up for individual rights and for human dignity — folks who understand as MLK once said that “injustice anywhere is a threat to justice everywhere.” The current group of Article IIIs is a national disgrace (as a whole, although there are many notable exceptions, mostly among the U.S. District Court Judges who all too often get reversed by the CAs and the Supremes as their “reward” for “standing tall” for the rest of us and standing up for the fair application of the rule of law).
In the meantime, NAIJ President Judge Ashley Tabaddor is a national hero for standing up for the due process rights of all and having the courage to “speak truth to power” in these perilous times. Obviously, the unethical “decertification action” started by DOJ and EOIR is part of the effort to punish and silence her.Hang in there Ashley! We in the NDPA and the Round Table support and appreciate you and your tireless efforts!
Due Process Forever! Clown Courts 🤡& Complicit Article III Courts Never!
Honorable Joan Churchill Retired U.S. Immigration Judge Member Round Table of Retired Judges
Round Table superstar Judge Joan Churchill reports:
The letter has been addressed to the Chairs and Ranking Members of both the Senate and HR Judiciary Committees, as well as to the HR Immigration Subcommittee, and to Senator Whitehouse of the Senate Judiciary Committee, who sent a letter last month to the AG, cosigned by several other members of the Senate Judiciary Committee, expressing concerns about due process at the Immigration Courts. There are 7 letters, attached below for your records.
Because all seven letters are similar in content, I’m linking and reprinting only the one to Chairwoman Zoe Lofgren of the House Subcommittee on Immigration & Citizenship.
1401 Longworth House Office Building Washington, D.C. 20515
Dear Representative Lofgren:
In your role as Chair of the House Committee on the Judiciary’s Subcommittee on Immigration and Citizenship, the National Association of Women Judges [NAWJ] writes in support of the creation of an independent Immigration Court. We respectfully call on Congress to establish an Article I Immigration Court system that is independent of the Department of Justice, or any other prosecutorial agency, in order to guarantee due process and a fair hearing with justice for all.
Currently, the Immigration Courts are housed in the U.S. Department of Justice’s Executive Office for Immigration Review [EOIR], which manages Immigration Courts at both the trial and appellate levels.
1
This structure presents an inherent conflict of interest. The Immigration Courts are adjudicatory bodies
tasked with providing due process hearings to respondents in removal proceedings. It is essential that its judges be neutral adjudicators who are not subject to the policy making chain of command of an executive agency, or to direction by a party to the cases before them.
NAWJ has been the leading voice of women jurists across the country for over forty years. Founded in 1979, our non-partisan membership includes over 1,000 judges, women and men, serving at all levels of the state and federal judiciary. Our membership includes judges on administrative, military, tribal, and other specialized courts, in addition to the regular state and federal courts. NAWJ has, since our founding, championed the advancement of women and minorities in the legal profession, the independence of the judiciary, and equal access to justice.
NAWJ’s support for an independent Immigration Court outside the Department of Justice is long standing. We adopted a resolution in support on April 16, 2002 stating that:
1 The appellate level of the Immigration Court system is known as the Board of Immigration Appeals or BIA.
Chair Zoe Lofgren Page Two
“The NAWJ supports an independent structure for the Immigration Courts (at both the trial and appellate levels) outside the Department of Justice, to assure fairness and equal access to justice, and to assure both the appearance and reality of impartiality.”
We followed up with another resolution adopted on October 18, 2008 stating:
“The National Association of Women Judges supports the enactment of federal immigration legislation that provides for full and fair administrative adjudication and review of deportation orders.”
We are pleased to hear that Congress is currently considering introduction of legislation on this important topic.
Due process by adjudicatory tribunals requires case by case adjudication in which a neutral decision maker, using his/her independent judgment, renders a decision based entirely on the record before him/her, the facts of the case, the submissions of the parties, and the governing law and regulations, without direction from above or consideration of outside (ex parte) influences. The current structure of the Immigration Courts, however, presents a systemic problem to neutral adjudication, as the structure allows:
(1) a supervisory role regarding the content of Immigration Judges’ rulings and
decisions, as a factor in their performance evaluations, and
(2) participation in the adjudicatory process by policy makers who are, in turn,
answerable to one of the parties, an executive agency of the Government.
We respectfully urge Congress to establish an independent Immigration Court system, under Article I of the United States Constitution, that would assure due process and judicial independence.
Thank you for consideration of our views. Sincerely,
The Honorable Bernadette D’Souza President
National Association of Women Judges
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For those of you who don’t already know my long-time friend and colleague Judge Joan Churchill, here is a little background.
Joan and I worked together as Attorney Advisors at the BIA in the early 1970s. She was the leader of the movement to start an employees’ union at the BIA, largely to insure fair and respectful treatment of our support staff. I was a “charter member,” and Joan served as our first President.
Later, after becoming one of the first women Immigration Judges at the “Legacy INS,” Joan served as the President of the Immigration Judges’ Association, the predecessor to the National Association of Immigration Judges. Among her many accomplishments, Joan successfully, and almost single handedly, argued the “Due Process case” against an INS proposal to take asylum cases out of Immigration Court and assign them exclusively to the newly created Asylum Office.
Later in our careers, Joan and I were “reunited” as colleagues at the Arlington Immigration Court. I was the “keynote speaker” at her retirement ceremony.
Following retirement, Joan hasn’t missed a beat. She served as President of the NAWJ and has actively and effectively pressed the case for Article I status as a member of the ABA National Conference on the Administrative Judiciary (of which I also am a member). Undoubtedly, Joan’s efforts were a key factor in getting such strong support for the Article I proposal from the ABA.
All of us who served as Immigration Judges and believe in the fundamental value of Due Process under law owe a debt of gratitude to Joan for her courageous, effective, pioneering work and her continued involvement in fulfilling the one-time “EOIR vision” of “through teamwork and innovation, being the world’s best administrative tribunals insuring fairness and due process for all.”
I might add, that it wasn’t always easy for Joan who has constantly demonstrated courage, an incredible work ethic, and “grace under fire.” But, that’s another story.
For now, I’m just thankful to be able to call Joan a friend and colleague and to continue to benefit from her wisdom, scholarship, and hard work in behalf of all of us in the Round Table of Former Immigration Judges.
The immigration policies executed by the Trump administration have been, to be succinct, f***ed up. That’s not even just me saying that. The people who have to execute his policies are saying it too.
The New York Times reports that a union of federal asylum workers has filed an amicus brief stating that a policy from the Trump Administration that diverts migrants to Guatemala is unlawful. The union, National CIS Council 119, represents 700 asylum and refugee officers of the United States Citizenship and Immigration Services. The brief states that international treaty obligations are being violated as a result of having to deport migrants to a country where they will likely face prosecution. The Trump administration made a deal with Guatemala that allows the United States to deport migrants seeking asylum in the States to Guatemala. The union believes that these new rules are forcing them to violate the laws they were trained to uphold.
. . . .
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Read the complete report at the link.
HEROES & ENABLERS — Judges Who Aid The Trump Regime’s Deadly Oppression Of The Most Vulnerable Among Us Will Eventually Hear The Voices Of Those They Abandoned & Dehumanized — Even From The Graves Of The Oppressed, History Will Pass Judgement On The Smugly Powerful Who Abuse The Weak!
By Paul Wickham Schmidt
Courtside Exclusive
March 9, 2020
USCIS Asylum Officers are the “NDPA Heroes of the Week!”
So, one group of courageous civil servants is willing to put their careers on the line to defend the Constitution and the rights of the vulnerable. But, others in more protected positions, like, for example, Supreme Court Justices and some Court of Appeals Judges, are afraid to stand up to Trump and defend the rule of law and the humanity of those whose only “crime” is to trust in our legal protection system. The courage of one group contrasts with the willful ignorance and cowardly complicity of the other. What’s wrong with this picture?
At some point, there will be “regime change” in the Executive as well as the Senate. When that happens, our system needs a complete re-examination of the immigration scholarship, commitment to human rights, and the moral leadership of those we are giving lifetime appointments to the Federal Bench, particularly the Supremes.
Obviously, the system has failed when two current justices choose to use their power and privileged positions disingenuously to rail about the “bogus horrors” of nationwide injunctions, and thereby spur the regime on to even grater abuses, while papering over the real issue of the actual grotesque legal, constitutional, and human rights violations inflicted on migrants and others by a White Nationalist would-be authoritarian regime that would eventually do away with almost all of our legal rights.
In the future, perhaps we should consider elevating more Asylum Officers with law degrees and a record of fair adjudication and speaking truth to power to the Article III Judiciary, including the Supremes. There are younger members of our Round Table of Former Immigration Judges who were forced by the regime into “early retirement” who could bring scholarship, fairness, practicality, and justice back to the Article IIIs. How about some pro bono lawyers, clinical professors, and NGO leaders who combine scholarship with real life experience and whose proven creativity and problem solving skills far exceed the pedestrian and wooden approaches we see all too often from today’s failing Article III Judiciary. Although their efforts are mocked, disrespected, and undermined by complicit Article III Judges, like the “J.R. Five,” these courageous “defenders of democracy and the rights of the weak” are the ones who are in fact keeping our legal system afloat in the face of Article III willful ignorance and complicity in tyranny.
And, we definitely need fewer corporate lawyers (except those who have extensive pro bono immigration/human rights experience), prosecutors, and right wing “think tankers” occupying the Federal bench.We have an oversupply of those folks on the bench right now, and our rights are suffering for it. It will take years, perhaps decades, to repair the damage they are causing and to bring the Federal Judicial system back into a proper balance.
These aren’t “liberal/conservative philosophical questions.” They are black and white questions of moral courage and the willingness to enforce Due Process and protect those whose lives are endangered by the Trump regime’s cruel and lawless programs and constant racially-inspired lies, naked bias, and misrepresentations. Sending folks back to dangerous countries without functioning asylum systems is wrong as a matter of law. Period. Making them “Remain in Mexico” is wrong. Period. A so-called “court system” run by a transparently biased, disingenuous, “uber enforcement” official like Billy Barr does not provide the “fair and impartial adjudications” required by Due Process. Period. Separating families and putting kids in cages and “kiddie gulags” is wrong. Period. Those initiating and carrying out those policies should be chastised and held accountable, not enabled. Period.
Actually, many courageous and scholarly U.S. District Judges have gotten these straightforward legal questions exactly right and promptly entered life-saving injunctions. A number of U.S. Immigration Judges have also courageously adhered to the rule of law in the face of excruciating and unethical pressure from DOJ politicos and their toadies to cut corners and railroad individuals out of the country without due process.
It’s the Supremes and too many Circuit Court Judges who who have “rolled over” for the regime’s cruel and inhuman nonsense. By doing so, they essentially “pull the rug” out from under those judges who have the encourage and integrity to “just say no” to the regime’s constant overreach. In doing so, the Federal Appellate Courts and the Supremes are actually engaging in undermining the system they serve and encouraging “worst practices” and even worse results. What truly reprehensible “role models” for upcoming lawyers. Fortunately, many newer lawyers are members of the New Due Process Army and are ignoring the poor and immoral examples of judicial spinelessness set by their supposed “elders.”
Life tenure protects the jobs and paychecks of Article III Judges. But, it won’t protect them from justified criticism and the ultimate judgement of history. Bashing the oppressed in behalf of those in power might seem like a good short-term strategy. After all, the deported, the abused, and the dead don’t normally get to “write history.”
But others are watching this travesty unfold and are pledged to “give a voice” to those silenced by the gross dereliction of legal duties and ignoring simple human decency and values by many with power who could have put an end to these obscene human rights abuses. Chief Justice Roger Taney might have been hailed by the White Supremacists of his age for his opinion in Dred Scott. But, he hasn’t “weathered the test of time” too well! Nor will Chief Justice Roberts and others who have been “going along to get along” with cruel and illegal abuses wantonly inflicted by the White Nationalist regime on the most needy and vulnerable among us.
Congrats and much appreciation from all of us in the New Due Process Army to USCIS Asylum Officers for your courage and integrity in the face of tyranny!
Due Process Forever; Complicity & Enabling Cruelty Never!
WITH CHARACTERISTIC bombast, the White House denounced a federal court ruling the other day that threatens the administration’s policy of shifting migrants across the border into Mexico while they await the outcome of their asylum claims. The ruling, said press secretary Stephanie Grisham, could “reignite the humanitarian and security crisis at the border.”Too late, Ms. Grisham. As a direct result of the administration’s policy, known as Remain in Mexico, a full-blown humanitarian and security crisis already has been raging at the border since last spring. But since the victims, violence and costs of that crisis happen to be just south of the border — sometimes nearly within view of it — U.S. officials have successfully averted their eyes. To the Trump administration, a crisis of its own making is out of sight and therefore must not exist.
Sadly, it does exist. Some 60,000 migrants, mainly from Central America, have been returned by U.S. officials to Mexico over the past year to await adjudication of their asylum claims. Many have given up. Those who remain, stranded in squalid shelters and tent camps along the frontier, are easy prey for Mexican crime cartels. More than 1,000 reported cases of kidnapping, rape torture and other violent crimes targeting migrants waiting in Mexico have been documented by Human Rights First, an advocacy group. Independent journalists have also confirmed such cases, often involving Mexican criminals who use the migrants as leverage for ransom demands aimed at their relatives at home or in the United States.
The mass victimization of asylum seekers runs afoul of U.S. law and this country’s treaty obligations, which prohibit subjecting asylum seekers to such risks. “Uncontested evidence in the record establishes that [migrants returned to Mexico under the administration’s policy] risk substantial harm, even death, while they await adjudication of their applications for asylum,” wrote Judge William A. Fletcher of the U.S. Court of Appeals for the 9th Circuit, which ruled against the policy but let it stand pending further appeals.
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Read the complete editorial at the above link.
It’s great to be on the right aside of history here. But, it would be better to make history by getting essential “regime change” in November – across the board.
Filed clerk order (Deputy Clerk: AF): The panel previously ordered that argument for the above-captioned cases would proceed with Diaz-Reynoso v. Barr, No. 18-72833 being argued first. The panel supplements its previous order for argument in this first case, as follows: Petitioner will argue, reserving time for rebuttal if desired, then Amicus Curiae The Center for Gender and Refugee Studies will argue, then Respondent will have an opportunity to respond to both Petitioner and the Amicus, and finally Petitioner may use any time reserved for rebuttal. Additionally, Respondent should be prepared to address the arguments raised by Amici Curiae Thirty-Nine Former Immigration Judges and Members of the Board of Immigration Appeals. [11616996] [18-72833, 18-72735, 18-73434, 19-70489] (AF)
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Great to know that at least some Article IIIs are paying attention. We can only hope that they will act on our expert views and save some very deserving and highly vulnerable lives. Of course, we couldn’t have gotten this far without the amazing pro bono team over at Gibson Dunn!
Brent Kendall and Alicia Caldwell report for the WSJ:
A federal appeals court for now agreed to narrow the effect of its recent ruling that blocked a Trump administration policy of returning immigrants at the southern U.S. border to Mexico while their requests for asylum are considered.
The San Francisco-based Ninth U.S. Circuit Court of Appeals, in an order issued Wednesday, said it ruled correctly last week that the administration’s “Remain in Mexico” policy is unlawful. But the court acknowledged the “intense and active controversy” over nationwide injunctions against administration policies and said it would limit its ruling for now to the two border states within its jurisdiction: Arizona and California.
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The Ninth Circuit also said none of its ruling would go into effect until March 12, to give the Trump administration a week to ask the Supreme Court for an emergency stay to keep the policy in place every-where for the time being.
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The plaintiffs have already “won” this case about the regime’s unlawful actions twice. But, they are yet to get any meaningful relief. Instead, folks continue to suffer and be irreparably harmed while the wheels of justice slowly grind.
Andrew Naughtie Political Reporter The IndependentHonorable Charles Honeyman Retired U.S. Immigration Judge Member, Round Table of Former Immigration Judges
An immigration judge in Philadelphia has stepped down from the bench early citing pressure from the Trump administration, which he says is turning the Immigration Court into a “politburo rubber stamp”.
Speaking to the Philadephia Inquirer, Judge Charles Honeyman described how he left the bench earlier than he had planned after the government began taking a harder line on immigration and deportation cases.
“At some point I was just not comfortable,” he told the paper.
Judge Honeyman is now joining the immigration law firm of Solow, Isbell, & Palladino, which specialises in immigration cases. There, he will provide litigation advice to clients facing deportation.
Immigrants subject to removal cases often struggle to gain legal representation in the court system, with up to two thirds going into their cases without counsel – radically reducing their chances of remaining in the US.
‘Families belong together’ protests over Trump immigration policy
The Immigration Court system sits outside the judiciary and is governed instead by the Justice Department’s Executive Office for Immigration Review. That means it is subject to direct political pressure from the administration, including instructions from the attorney general, whose interpretation of the law immigration judges are meant to follow.
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Read the complete article at the link.
Proud that Judge Honeyman is a member of the Round Table of Former Immigration Judges.
Cristian Farias Writer in Residence Knight First Amendment Institute
Cristian Farias reports in The Atlantic:
For more than two years, immigration judges have been subject to a policy that more or less prevents them from performing an essential part of their civic duties: speaking publicly about their work.
Since September 2017, immigration judges and all other employees at the Justice Department’s Executive Office for Immigration Review have been required to adhere to an onerous pre-approval process whenever they desire or are invited to speak publicly on any issue, immigration-related or not. I learned of the policy through a Freedom of Information Act request my colleagues made to the department, as part of an investigation I’ve been conducting on the intersection of free speech and U.S. border enforcement.
It is not uncommon for government agencies to set rules on employee conduct and outside activities. But the perspective of immigration judges is particularly valuable to the public, especially one grappling with complicated questions about America’s immigration laws. In his 2019 year-end report on the federal judiciary, Chief Justice John Roberts commended American judges who, “without fanfare or acclaim,” take time to reach out to their communities in all sorts of public-education initiatives. As Ashley Tabaddor, the president of the National Association of Immigration Judges, told Congress in 2018, immigration judges “help the community better understand our immigration courts and their function in the community, helping to demystify the system and bring transparency about our operations to the public.”
Although immigration judges are employees of the executive branch, they’re judges in the truest sense of the term, presiding over cases that have enormous consequences for asylum seekers or people facing removal from the U.S. The Trump administration appears determined to remove from the public’s view the very people the chief justice and Tabaddor believe play an essential role in promoting public confidence in the administration of justice. The Justice Department should heed their call—rescind its misguided policy and let judges speak.
In the 2017 memo, the official overseeing the work of immigration judges, James McHenry III, did acknowledge that “the public has become increasingly interested in hearing about, and understanding, what the agency does and specifically how Immigration Courts operate.” But the policy went on to severely restrict judges’ freedom to speak even in a personal capacity about these matters, requiring them to seek permission through the chain of command. “Supervisors will determine the capacity in which an employee is speaking,” McHenry’s memo stated, thus effectively eliminating a judge’s discretion to speak about immigration in public settings, even with a disclaimer that he or she was doing so in a personal capacity. Supervising judges and other senior employees have it even worse—they are simply forbidden from speaking at public events in a personal capacity at all.
Lawyers at the Knight First Amendment Institute at Columbia University, where I’ve been conducting my investigation, believe that the policy violates the First Amendment, and in early January issued a letter asking the Justice Department to suspend it. Their reasoning was grounded in well-settled Supreme Court precedent. In the 1968 case Pickering v. Board of Education, the Supreme Court recognized that public employees’ “right to speak on issues of public importance” doesn’t vanish the moment they take a government job. For the government to restrain public employees’ ability to speak, the Supreme Court has said, the Constitution requires officials to show that their interest in restraining speech outweighs employees’ interest in speaking and the public’s interest in hearing what they have to say. “The Government must show,” Justice John Paul Stevens explained in a 1995 case, “that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression’s ‘necessary impact on the actual operation’ of the Government.” That’s a heavy lift.
The Justice Department hasn’t officially responded to the lawyers’ letter. But in mid-January, McHenry’s office did reply in a way: It purported to reissue the 2017 memorandum, calling it “established policy,” and unveiled an online portal through which immigration judges may submit their speaking-engagement requests for approval. According to the department, the new portal was necessary “to provide for more certainty and clarity” for judges, an implicit acknowledgment that the earlier guidance was causing confusion among immigration judges. (The reissued policy hasn’t been made public, but a person familiar with it showed it to me.)
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Read Cristian’s complete article at the above link.
”The truth will set you free.” But, at EOIR, the truth will get you fired!
Given the due process and management disasters going on at EOIR, it’s not surprising that they want to silence the witnesses. What is surprising is that they have been getting away with it so far.
Bailey’s Crossroads Pin
NOTE: Even prior to becoming the home of EOIR Headquarters, Bailey’s Crossroads had long reputation of being associated with the circus. However, more recent scholarship has cast doubt on those claims. According to this Washington Post article, Bailey’s Crossroads’ claimed association with the Ringling Bro’s Barnum & Bailey Circus might be as attenuated as EOIR’s claimed association with due process and fundamental fairness! https://www.washingtonpost.com/archive/local/2002/05/19/history-at-the-crossroads/5da541c9-5aa4-49cc-83f9-7ecb49a1b12b/
However, what the article does correctly point out, and EOIR under the influence of the White Nationalist regime appears to have forgotten, is that Bailey’s Crossroads has a long history of being a vibrant community of industrious immigrants who made Northern Virginia into what it is today!
Hon. Randy Moss U.S. District Judge Washington, DCRandy Moss NFL Hall of Fame Wide Receiver (Todd Buchanan / Pioneer Press)“Cooch Cooch” Rewrites America’s Welcoming Message for White Nationalist Nation
L.L.-M. V. Cuccinelli, D. D.C. (Judge Moss), 03-01-20
U.S. District Judge Randy Moss (not to be confused with the NFL hall of fame receiver, one-time “bad boy,” and now commentator of the same name) ruled that Cooch Cooch was illegally appointed to his position of Acting Director of USCIS, thereby invalidating some of his written anti-asylum directives aimed at denying fair processing during the credible fear process and perhaps killing brown-skinned asylum seekers.
KEY QUOTE FROM JUDGE MOSS’S OPINION:
The Court concludes that it has jurisdiction over Plaintiffs’ challenges to the reduced-time-to-consult and prohibition-on- extensions directives and that it lacks jurisdiction over Plaintiffs’ challenge relating to the in- person-orientation directive. The Court also concludes that Cuccinelli was not lawfully appointed to serve as the acting Director of USCIS and that, accordingly, the reduced-time-to- consult and prohibition-on-extensions directives must be set aside as ultra vires under both the FVRA, 5 U.S.C. § 3348(d)(1), and the APA, 5 U.S.C. §706(2)(A). Finally, the Court sets aside the individual Plaintiffs’ negative credible-fear determinations and expedited removal orders and remands to USCIS for further proceedings consistent with this decision.
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Although only tangental to the actual result reached by Judge Moss, his detailed description of how the regime has unconstitutionally and immorally skewed the credible fear process to screw asylum seekers, largely based on their race, as opposed to acting in good faith to insure that needed protection is granted under U.S. law without regard to political pandering or racial bias, should outrage every American. It also points out how, even though this has been going on since June 2019, and thousands of individuals’ lives have been endangered by this illegal and immoral action, Federal Courts are only now beginning to “scratch the surface” of the regime’s invidious assault on asylum seekers from south of our border.
Indeed, in a move likely to warm the hearts (if, in fact, they have such organs) of Trumpist Judges like Gorsuch and Thomas, Judge Moss limited his order to the five individual named plaintiffs rather than entering the highly controversial, yet totally justified in cases like this, “nationwide injunction.” That means that thousands of similarly situated individuals who were screwed by Cooch Cooch’s scofflaw behavior will have to sue individually to get the law properly applied to them. That assumes that they are still alive and able to sue.
While the decision correctly points to numerous serious defects in the regime’s operation of USCIS, the practical effects might remain small. The regime can always seek to have it undone by the D.C. Circuit or the compliant “J.R. Five” on the Supremes. They also should be able to find some Senate-confirmed politico who was on duty on June 1, 2019 and simply have Trump appoint him or her “acting” and order them to re-issue Cooch’s “Miller-approved” White Nationalist directives on pain of dismissal. Surely, there is never a shortage of toadies among Trump’s gang of sycophants.
Clearly, the only real way to save our democracy and save the lives we should be saving is to vote for regime change, at all levels, this November. Otherwise, we might all find ourselves “Cooched” at some point in the future!
For now, maybe “Cooch Cooch” should be required to join his fellow “illegals” fighting for their existence in squalor and cruel and inhumane conditions under bridges and on street corners on the Mexican side of the border! Or, perhaps he should be “orbited” to Guatemala, El Salvador, or Honduras to pursue his claims from there! One truly scary thing: “Cooch Cooch” was actually once the top “legal” officer of the Commonwealth of Virginia, serving a purely awful term as Attorney General. Thankfully, we Virginia voters had the good sense to send him packing when he ran for Governor!
